Note: This page covers information specific to Pennsylvania. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
Pennsylvania has a narrow anti-SLAPP statute, found at 27 Pa. Cons. Stat. §§ 7707, 8301-05, that only applies to those petitioning the government over environmental issues. While the statute does not protect "free speech" in the abstract, bloggers and non-traditional journalists who address environmental issues may be able to take advantage of it. The statute provides for a special motion and hearing to establish entitlement to immunity. If a court rules in your favor on this motion, it will dismiss the plaintiff's case early in the litigation and award you attorneys' fees and court costs.
Activities Covered By The Pennsylvania Anti-SLAPP Statute
To challenge a lawsuit as a SLAPP in Pennsylvania, you need to show that the plaintiff is suing you over an "an oral or written communication to a government agency relating to enforcement or implementation of an environmental law or regulation." The statement must also be "aimed at procuring favorable governmental action."
Pennsylvania courts have interpreted this language to encompass both direct communications with the government and statements to third parties that are ultimately aimed at procuring favorable government action on an environmental issue. Thus, statements calling government or public attention to any alleged environmental violation or seeking to influence the government in its consideration or review of an environmental issue are protected. Some examples of protected communications made to non-government actors include: "a letter to the editor of a local newspaper expressing concern about the possibility of contamination at a proposed development, a statement made to a newspaper reporter about the possibility of contamination at a proposed development, or a signboard which protests the development of a wetland." Penllyn Greene Associates, L.P. v. Clouser, 890 A.2d 424, 433 n.11 (Pa. Cmmw. Ct. 2005).
There are, however, exceptions to this immunity, spelled out in 27 Pa. Cons. Stat. § 8302 (b). You are not entitled to immunity if:
- your statements were "knowingly false, deliberately misleading or made with malicious and reckless disregard for the truth or falsity";
- your statements were "made for the sole purpose of interfering with existing or proposed business relationships"; or
- your statements are "later determined to be a wrongful use of process or an abuse of process."
How To Use The Pennsylvania Anti-SLAPP Statute
The Pennsylvania anti-SLAPP statute gives you the ability to file a special motion requesting a determination of immunity under the Act. After you file the motion, the court must hold a hearing to make this determination.
At the hearing, the court will inquire into whether the lawsuit is based on "a communication to a government agency relating to enforcement or implementation of an environmental law or regulation" (defined above). Assuming you can show this, the court will require the plaintiff to introduce evidence showing that your statements fall into one of the three exceptions outlined above. If the plaintiff cannot do this, the court will dismiss the lawsuit against you. On the other hand, if the plaintiff's case is strong, the court will deny your motion. If the court denies your motion, you may appeal the judge's ruling immediately, and the plaintiff will not be able to engage in "discovery" (i.e., fact gathering for trial) until after the appeals court decides the appeal.
When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.
What Happens If You Win Your Motion
If you prevail on your motion under the Pennsylvania anti-SLAPP statue, the court will dismiss the lawsuit against you, and you will be entitled to recover your attorneys' fees and court costs. If you are only partially successful, the court may award you either full or partial fees and costs, at its discretion. See 27 Pa. Cons. Stat. § 7707.
If you succeed in fending off a SLAPP in Pennsylvania, you may be able to bring a claim of malicious use of civil process against the SLAPP filer. While Pennsylvania does not explicitly recognize a "SLAPPback" claim, the elements of this claim are similar. You should consult an attorney to see whether such a claim may be viable in your case.