PRINTER'S NO. 1650
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1466
Session of
2023
INTRODUCED BY BIZZARRO, CERRATO, HANBIDGE, HOHENSTEIN, KHAN,
GALLAGHER, BOROWSKI, BRENNAN, MADDEN, BURGOS, ISAACSON,
JAMES, T. DAVIS, DELLOSO, KINSEY, D. WILLIAMS, HILL-EVANS,
SCHLOSSBERG, SOLOMON, TAKAC, SHUSTERMAN, PISCIOTTANO,
SANCHEZ, PARKER, OTTEN, KINKEAD, FLEMING, INNAMORATO AND
GREEN, JUNE 21, 2023
REFERRED TO COMMITTEE ON JUDICIARY, JUNE 21, 2023
AN ACT
Amending Title 42 (Judiciary and Judicial Procedure) of the
Pennsylvania Consolidated Statutes, in particular rights and
immunities, providing for a cause of action on protected
public expression and for immunity for protected public
expression; and imposing a duty upon the Administrative
Office of Pennsylvania Courts and the Legislative Reference
Bureau.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 42 of the Pennsylvania Consolidated
Statutes is amended by adding a section to read:
§ 8320.1. Action for protected public expression.
(a) Establishment.--A person has a cause of action if, in a
previous cause of action based on protected public expression:
(1) the person would have prevailed on a ground under
section 8340.15 (relating to grant of immunity); but
(2) the court did not make a determination on immunity
under section 8340.15.
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(b) Recovery.--A party that prevails in an action under this
section is entitled to recover from the nonprevailing party
under subsection (a)(1) all of the following:
(1) Attorney fees, court costs and expenses of
litigation in the underlying action.
(2) Punitive damages upon proof that the underlying
action was commenced or continued for the sole purpose of
harassing, intimidating, punishing or maliciously inhibiting
protected public expression.
(c) Construction.--This section shall be broadly construed
and applied to defend and enhance protected public expression.
(d) Definitions.--As used in this section, the following
words and phrases shall have the meanings given to them in this
subsection unless the context clearly indicates otherwise:
"Protected public expression." As defined in section 8340.13
(relating to definitions).
"Protected public expression immunity." As defined in
section 8340.13.
Section 2. Chapter 83 of Title 42 is amended by adding a
subchapter to read:
SUBCHAPTER C.1
PROTECTED PUBLIC EXPRESSION
Sec.
8340.11. Short title of subchapter.
8340.12. Declaration of policy.
8340.13. Definitions.
8340.14. Scope.
8340.15. Grant of immunity.
8340.16. Pretrial motion.
8340.17. Interlocutory appeal.
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8340.18. Awards.
§ 8340.11. Short title of subchapter.
This subchapter shall be known and may be cited as the
Uniform Public Expression Protection Act.
§ 8340.12. Declaration of policy.
The General Assembly finds and declares as follows:
(1) There has been a disturbing increase in lawsuits
brought primarily to chill the valid exercise of protected
public expression.
(2) It is in the public interest to encourage continued
participation in matters of public significance. This
participation should not be chilled through abuse of the
judicial process.
(3) This subchapter:
(i) grants immunity to those groups or parties
exercising the rights to protected public expression; and
(ii) awards attorney fees to parties that are forced
to defend against meritless claims arising from the
exercise of the rights to protected public expression.
(4) Broad construction of this subchapter will implement
the goals under paragraphs (2) and (3).
§ 8340.13. Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Cause of action based on protected public expression." A
cause of action under section 8340.14 (relating to scope).
"Goods or services." The term does not include the creation,
dissemination, exhibition or advertisement or similar promotion
of a dramatic, literary, musical, political, journalistic or
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artistic work.
"Protected public expression." A person's:
(1) communication in a legislative, executive, judicial
or administrative proceeding;
(2) communication on an issue under consideration or
review in a legislative, executive, judicial or
administrative proceeding; or
(3) exercise, on a matter of public concern, of the
rights of freedom of speech or of the press, the right to
assemble or petition or the right of association, guaranteed
by:
(i) the First Amendment to the Constitution of the
United States; or
(ii) section 7 or 20 of Article I of the
Constitution of Pennsylvania.
"Protected public expression immunity." Immunity under
section 8340.15 (relating to grant of immunity).
§ 8340.14. Scope.
(a) Coverage.--Except as provided in subsection (b), this
subchapter applies to a cause of action based on protected
public expression.
(b) Exclusions.--This subchapter does not apply to any of
the following claims asserted in a civil action:
(1) Against a government unit or an employee or agent of
a government unit acting in an official capacity.
(2) By a government unit or an employee or agent of a
government unit acting in an official capacity to enforce a
law, regulation or ordinance.
(3) Against a person primarily engaged in the business
of selling or leasing goods or services if the cause of
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action arises out of a communication related to the person's
sale or lease of the goods or services.
(4) Seeking damages for bodily injury or death unless
the claim:
(i) is for:
(A) defamation;
(B) publication of private facts;
(C) false light invasion of privacy;
(D) misappropriation of likeness; or
(E) intentional or negligent infliction of
emotional distress; or
(ii) arises solely from a communication on a matter
of public concern.
(5) Arising under any of the following:
(i) 23 Pa.C.S. Ch. 61 (relating to protection from
abuse).
(ii) Chapter 62A (relating to protection of victims
of sexual violence or intimidation).
(iii) The act of May 17, 1921 (P.L.682, No.284),
known as The Insurance Company Law of 1921.
(6) Arising under an insurance contract.
(7) Asserting misappropriation of trade secrets or
corporate opportunities against the person that allegedly
misappropriated the trade secret or corporate opportunity.
(8) Enforcing a nondisparagement agreement or a covenant
not to compete against a party to the agreement or covenant.
(9) Arising out of the internal affairs, governance,
dissolution, liquidation, rights or obligations between or
among stockholders or partners. This paragraph includes the
interpretation of the rights or obligations under the
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governing organic law, articles of incorporation, bylaws and
agreements.
(10) Liability or indemnity of managers of business
corporations, partnerships, limited partnerships, limited
liability partnerships, professional associations, business
trusts, joint ventures or other business enterprises. This
paragraph includes the interpretation of the rights or
obligations under the governing organic law, articles of
incorporation, bylaws or agreements.
§ 8340.15. Grant of immunity.
A person is immune from civil liability for a cause of action
based on protected public expression if any of the following
paragraphs apply:
(1) The party asserting the cause of action based on
protected public expression fails to:
(i) establish a prima facie case as to each
essential element of the cause of action; or
(ii) state a cause of action upon which relief can
be granted.
(2) There is no genuine issue as to any material fact,
and the person against whom the cause of action based on
protected public expression has been asserted is entitled to
judgment as a matter of law in whole or in part.
§ 8340.16. Pretrial motion.
(a) Authorization.--A party may file a special motion for
dismissal of or judgment on a cause of action, or part of a
cause of action, based on a party's protected public expression
immunity.
(b) Time.--A motion under subsection (a) must be made as
follows:
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(1) Except as provided in paragraph (2), no later than
60 days after being served with a pleading asserting a cause
of action based on protected public expression.
(2) The court may extend the time under paragraph (1)
upon a showing of good cause.
(c) Effect.--A motion under subsection (a) does not preclude
a party from asserting protected public expression immunity
through other pleadings and motions under the Pennsylvania Rules
of Civil Procedure.
(d) Procedure.--Upon motion under subsection (a), all of the
following apply:
(1) Subject to paragraphs (2) and (3), the court shall
hear oral argument on the motion within 60 days after the
motion is filed.
(2) The court may extend the time period under paragraph
(1):
(i) to allow discovery under subsection (f)(2)(i);
or
(ii) for good cause.
(3) If paragraph (2) applies, the court shall hear
argument as follows:
(i) For an extension under paragraph (2)(i):
(A) within 60 days after the court order
allowing the discovery; or
(B) for good cause, on the date specified by the
court.
(ii) For an extension under paragraph (2)(ii), on
the date specified by the court.
(4) In ruling on a motion under subsection (a), the
court shall consider the record as defined in Pa.R.C.P. No.
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1035.1 (relating to Motion for Summary Judgment. Definition),
the special motion and responses and the evidence which can
be considered on a motion for summary judgment under
Pa.R.C.P. No. 1035.2 (relating to motion).
(5) Within 60 days after hearing oral argument under
paragraph (1) or (3), the court shall:
(i) rule on a motion under subsection (a); and
(ii) place on the record a written opinion stating
its reasoning for its ruling.
(e) Stay.--If a motion under subsection (a) is made, all of
the following apply:
(1) Except as provided in subsection (f), all other
proceedings in the action are stayed. This paragraph includes
discovery and the moving party's obligation to file a
responsive pleading.
(2) A stay under paragraph (1) shall remain in effect
until the order ruling on the motion becomes final. This
paragraph includes an appeal of the order.
(f) Exceptions to stay.--During a stay under subsection (e),
all of the following apply:
(1) A party may challenge service of a writ or
complaint, personal or subject matter jurisdiction or venue.
(2) A court may take any of the following actions:
(i) Allow limited discovery if a party shows that
specific information:
(A) is necessary to establish whether a party
has satisfied or failed to satisfy a burden under
section 8340.15 (relating to grant of immunity); and
(B) is not reasonably available unless discovery
is allowed.
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(ii) Upon a showing of good cause, hear and rule on
a request for special or preliminary injunctive relief to
protect against an imminent threat to public health or
safety.
(iii) Upon a showing of good cause, permit a
proceeding relating exclusively to a cause of action:
(A) in response to which no party has asserted
protected public expression immunity; and
(B) which does not implicate an issue relevant
to a party's assertion of protected public expression
immunity or to the cause of action for which that
immunity has been asserted.
(3) A party may voluntarily discontinue all or part of
the party's action.
(4) A party may move to recover attorney fees, court
costs and expenses of litigation under section 8340.18
(relating to awards).
§ 8340.17. Interlocutory appeal.
An order granting, denying or otherwise determining immunity
under this subchapter is immediately appealable under section
702 (relating to interlocutory orders).
§ 8340.18. Awards.
(a) Party asserting immunity.--If a cause of action based on
protected public expression is commenced against a party, all of
the following apply:
(1) If the party is immune under section 8340.15
(relating to grant of immunity), the court shall award the
party attorney fees, court costs and expenses of litigation
jointly and severally against each adverse party that
asserted the cause of action.
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(2) If the party asserts protected public expression
immunity and the opposing party voluntarily discontinues the
action under Pa.R.C.P. No. 230 (relating to voluntary
nonsuit), with or without prejudice, the court shall award
the asserting party attorney fees, court costs and expenses
of litigation jointly and severally against each adverse
party that asserted the cause of action.
(b) Party opposing immunity.--If the court determines that a
party's assertion of protected public expression immunity is
frivolous or filed solely with intent to delay the proceeding,
the court shall award the opposing party attorney fees, court
costs and expenses of litigation, incurred in opposing the
assertion of protected public expression immunity.
Section 3. The following apply:
(1) The Administrative Office of Pennsylvania Courts has
a duty under paragraph (3) if any of the following occur:
(i) Promulgation by the Supreme Court of
Pennsylvania of a rule, similar in form to Pa.R.C.P. No.
4023, stating that the provisions of 42 Pa.C.S. § 8340.16
are not suspended.
(ii) Promulgation by the Supreme Court of
Pennsylvania of a direct letter of address, similar in
form to In re 42 Pa.C.S. § 1703, 482 Pa. 522, 394 A.2d
444 (1978), stating that the provisions of 42 Pa.C.S. §
8340.16 are not suspended and do not violate Article V of
the Constitution of Pennsylvania.
(iii) Promulgation by the Supreme Court of
Pennsylvania of procedural rules providing substantially
the same content as the provisions of 42 Pa.C.S. §
8340.16.
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(2) The Legislative Reference Bureau shall determine the
effective date of passage by the General Assembly of a joint
resolution confirming that the procedural rules under
paragraph (1)(iii) provide substantially the same content as
the provisions of 42 Pa.C.S. § 8340.16.
(3) The Administrative Office of Pennsylvania Courts
shall transmit to the Legislative Reference Bureau all of the
following:
(i) Notice, for publication in the next available
issue of the Pennsylvania Bulletin, of each promulgation
and effective date under paragraph (1)(i) and (ii).
(ii) Notice of a promulgation and its effective date
under paragraph (1)(iii).
(4) The Legislative Reference Bureau shall publish any
of the following in the Pennsylvania Bulletin:
(i) For a notice under paragraph (3)(i), the entire
notice.
(ii) For a notice under paragraph (3)(ii), notice of
the later of the effective date of:
(A) promulgation under paragraph (1)(iii); or
(B) passage under paragraph (2).
Section 4. This act does not affect immunity, rights,
obligations or procedures under 27 Pa.C.S. § 7707 or Ch. 83.
Section 5. This act shall take effect as follows:
(1) The addition of 42 Pa.C.S. § 8340.16 shall take
effect on the effective date specified in the notice under
section 3(4).
(2) The remainder of this act shall take effect
immediately.
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