No. 1744 Session of 1997
INTRODUCED BY BIRMELIN, BATTISTO, CLYMER, OLASZ, BELARDI,
PHILLIPS, HENNESSEY, MARSICO, B. SMITH, ORIE, GODSHALL,
MASLAND, LYNCH, DALEY, M. N. WRIGHT, FLEAGLE, COY, STABACK,
WILT, GEIST, WAUGH, ROONEY, PLATTS, KENNEY, RAYMOND, ALLEN,
BROWN, FICHTER, BOSCOLA, MELIO, READSHAW, DeLUCA, SERAFINI,
BROWNE, BAKER, HUTCHINSON, S. H. SMITH, NICKOL, BARD, FARGO,
MAITLAND, SAYLOR, LEDERER, HARHART, TRELLO, DALLY, SANTONI,
HESS, BENNINGHOFF, STERN, ADOLPH, TRUE, DRUCE, LEH, MILLER,
WALKO, ARMSTRONG, ITKIN, ROHRER, E. Z. TAYLOR, EGOLF,
JOSEPHS, STEELMAN, SEYFERT, McNAUGHTON, CALTAGIRONE, ROBERTS,
RAMOS, THOMAS AND YOUNGBLOOD, SEPTEMBER 3, 1997
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
OCTOBER 29, 1997
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 collection of restitution, reparation, fees, costs, fines and
4 penalties and
17 SECTION 2. TITLE 42 IS AMENDED BY ADDING A SECTION TO READ: <--
18 § 8340.1. ENVIRONMENTAL LAW OR REGULATION.
19 (A) GENERAL RULE.--A PERSON WHO ACTS IN FURTHERANCE OF THE
20 PERSON'S RIGHT OF PETITION OR FREE SPEECH UNDER THE CONSTITUTION
21 OF THE UNITED STATES OR THE CONSTITUTION OF PENNSYLVANIA IN
22 CONNECTION WITH AN ISSUE RELATED TO ENFORCEMENT OR
23 IMPLEMENTATION OF ENVIRONMENTAL LAW OR REGULATION SHALL BE
24 IMMUNE FROM CIVIL LIABILITY IN ANY ACTION REGARDLESS OF INTENT
25 OR PURPOSE EXCEPT WHERE THE COMMUNICATION TO THE GOVERNMENT
26 AGENCY IS NOT GENUINELY AIMED AT PROCURING A FAVORABLE
27 GOVERNMENTAL ACTION, RESULT OR OUTCOME. A COMMUNICATION IS NOT
28 GENUINELY AIMED AT PROCURING A FAVORABLE GOVERNMENTAL ACTION,
29 RESULT OR OUTCOME IF IT IS NOT MATERIAL OR RELEVANT TO THE
30 ENFORCEMENT OR IMPLEMENTATION OF ENVIRONMENTAL LAW OR
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1 REGULATION.
2 (B) MOTION TO STRIKE.--
3 (1) A CAUSE OF ACTION AGAINST A PERSON ARISING FROM ANY
4 ACT OF THAT PERSON IN FURTHERANCE OF THE PERSON'S RIGHT OF
5 PETITION OR FREE SPEECH UNDER THE CONSTITUTION OF THE UNITED
6 STATES OR THE CONSTITUTION OF PENNSYLVANIA IN CONNECTION WITH
7 A PUBLIC ISSUE SHALL BE SUBJECT TO A SPECIAL MOTION TO STRIKE
8 UNLESS THE COURT DETERMINES THAT THE PLAINTIFF HAS
9 ESTABLISHED THAT THERE IS A SUBSTANTIAL LIKELIHOOD THAT THE
10 PLAINTIFF WILL PREVAIL ON THE CLAIM. IN MAKING ITS
11 DETERMINATION, THE COURT SHALL CONSIDER THE PLEADINGS AND
12 SUPPORTING AND OPPOSING AFFIDAVITS STATING THE FACTS UPON
13 WHICH THE LIABILITY OR DEFENSE IS BASED. THE COURT SHALL
14 ADVANCE ANY MOTION TO STRIKE SO THAT IT MAY BE HEARD AND
15 DETERMINED WITH AS LITTLE DELAY AS POSSIBLE.
16 (2) THE COURT SHALL STAY ALL DISCOVERY PROCEEDINGS IN
17 THE ACTION UPON THE FILING OF A MOTION TO STRIKE, PROVIDED,
18 HOWEVER, THAT THE COURT, ON MOTION AND AFTER A HEARING AND
19 FOR GOOD CAUSE SHOWN, MAY ORDER THAT SPECIFIED DISCOVERY BE
20 CONDUCTED. THE STAY OF DISCOVERY SHALL REMAIN IN EFFECT UNTIL
21 NOTICE OF THE ENTRY OF THE ORDER RULING ON THE MOTION TO
22 STRIKE.
23 (3) IF THE COURT DETERMINES THAT THE PLAINTIFF HAS
24 ESTABLISHED THAT THERE IS A SUBSTANTIAL LIKELIHOOD THAT HE
25 WILL PREVAIL ON THE CLAIM, NEITHER THAT DETERMINATION NOR THE
26 FACT OF THAT DETERMINATION SHALL BE ADMISSIBLE IN EVIDENCE AT
27 ANY LATER STAGE OF THE CASE, AND NO BURDEN OF PROOF OR DEGREE
28 OF PROOF OTHERWISE APPLICABLE SHALL BE AFFECTED BY THAT
29 DETERMINATION.
30 (4) THE SPECIAL MOTION MAY BE FILED WITHIN 60 DAYS OF
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1 THE SERVICE OF THE COMPLAINT OR, IN THE COURT'S DISCRETION,
2 AT ANY LATER TIME UPON TERMS IT DEEMS PROPER.
3 (C) ATTORNEY FEES.--IF A PERSON SUCCESSFULLY DEFENDS AGAINST
4 AN ACTION UNDER THIS SECTION, THAT PERSON SHALL BE AWARDED
5 REASONABLE ATTORNEY FEES AND THE COSTS OF LITIGATION. IF THE
6 PERSON PREVAILS IN PART, THE COURT MAY AWARD REASONABLE ATTORNEY
7 FEES AND COSTS OF LITIGATION OR AN APPROPRIATE PORTION THEREOF.
8 A PERSON SUCCESSFULLY DEFENDS AGAINST AN ACTION IF THE PERSON
9 PREVAILS ON A MOTION TO STRIKE A CAUSE OF ACTION UNDER
10 SUBSECTION (B) OR LATER PREVAILS ON THE MERITS IN THE ACTION.
11 (D) INTERVENTION OF GOVERNMENT AGENCY.--THE GOVERNMENT
12 AGENCY INVOLVED IN THE FURTHERANCE OF A PERSON'S RIGHT OF
13 PETITION OR FREE SPEECH UNDER THE CONSTITUTION OF THE UNITED
14 STATES OR THE CONSTITUTION OF PENNSYLVANIA IN CONNECTION WITH A
15 PUBLIC ISSUE SHALL HAVE THE RIGHT TO INTERVENE OR OTHERWISE
16 PARTICIPATE AS AN AMICUS CURIAE IN THE ACTION INVOLVING PUBLIC
17 PETITION AND PARTICIPATION.
18 (E) CONSTRUCTION.--NOTHING IN THIS SECTION SHALL BE
19 CONSTRUED TO LIMIT ANY CONSTITUTIONAL, STATUTORY OR COMMON-LAW
20 PROTECTIONS OF DEFENDANTS TO ACTIONS INVOLVING PUBLIC PETITION
21 AND PARTICIPATION.
22 (F) DEFINITIONS.--AS USED IN THIS SECTION, THE FOLLOWING
23 WORDS AND PHRASES SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS
24 SUBSECTION:
25 "ACT IN FURTHERANCE OF A PERSON'S RIGHT OF PETITION OR FREE
26 SPEECH UNDER THE CONSTITUTION OF THE UNITED STATES OR THE
27 CONSTITUTION OF PENNSYLVANIA IN CONNECTION WITH A PUBLIC ISSUE."
28 ANY WRITTEN OR ORAL STATEMENT OR WRITING MADE BEFORE A
29 LEGISLATIVE, EXECUTIVE OR JUDICIAL PROCEEDING, OR ANY OTHER
30 OFFICIAL PROCEEDING AUTHORIZED BY LAW; ANY WRITTEN OR ORAL
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1 STATEMENT OR WRITING MADE IN CONNECTION WITH AN ISSUE UNDER
2 CONSIDERATION OR REVIEW BY A LEGISLATIVE, EXECUTIVE OR JUDICIAL
3 BODY, OR ANY OTHER OFFICIAL PROCEEDING AUTHORIZED BY LAW; ANY
4 WRITTEN OR ORAL STATEMENT OR WRITING MADE IN A PLACE OPEN TO THE
5 PUBLIC OR A PUBLIC FORUM IN CONNECTION WITH AN ISSUE OF PUBLIC
6 INTEREST; OR ANY WRITTEN OR ORAL STATEMENT OR WRITING MADE TO A
7 GOVERNMENT AGENCY IN CONNECTION WITH THE IMPLEMENTATION AND
8 ENFORCEMENT OF ENVIRONMENTAL LAW AND REGULATIONS.
9 "ENFORCEMENT OF ENVIRONMENTAL LAW AND REGULATIONS." ANY
10 ACTIVITY RELATED TO THE IDENTIFICATION AND ELIMINATION OF
11 VIOLATIONS OF ENVIRONMENTAL LAWS AND REGULATIONS, INCLUDING
12 INVESTIGATIONS OF ALLEGED VIOLATIONS, INSPECTIONS OF ACTIVITIES
13 SUBJECT TO REGULATION UNDER ENVIRONMENTAL LAW AND REGULATIONS
14 AND RESPONSES TAKEN TO PRODUCE CORRECTION OF THE VIOLATIONS.
15 "GOVERNMENT AGENCY." THE FEDERAL GOVERNMENT, THE
16 COMMONWEALTH AND ALL OF ITS DEPARTMENTS, COMMISSIONS, BOARDS,
17 AGENCIES AND AUTHORITIES, AND ALL POLITICAL SUBDIVISIONS AND
18 THEIR AUTHORITIES.
19 "IMPLEMENTATION OF ENVIRONMENTAL LAW AND REGULATIONS." ANY
20 ACTIVITY RELATED TO THE DEVELOPMENT AND ADMINISTRATION OF
21 ENVIRONMENTAL PROGRAMS DEVELOPED UNDER ENVIRONMENTAL LAW AND
22 REGULATIONS.
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