Anti-SLAPP protection

Act 72 is the state’s anti-SLAPP statute.

Law summary

Passed in 2024, Act 72 expanded Pennsylvania’s formerly narrow anti-SLAPP law by broadening protection against lawsuits that arise from all First Amendment expression, not just environmental laws or regulations.

The law defines public expression broadly, but also specifies 10 types of lawsuits for which the law does not apply. For example, a claim against or by a government employee cannot rely on the provisions specified in the anti-SLAPP statute.

Legal actions

Pennsylvania’s anti-SLAPP law includes protections aimed at prompt resolution of lawsuits.

• Special motion to dismiss: Defendants must file for a special motion to dismiss no later than 60 days after being served a lawsuit.
• Stay of discovery: If the motion is made, discovery is stayed until the ruling on the motion is finalized.
• Interlocutory appeal: A ruling regarding the law is immediately appealable.
• Accelerated hearing: The statute compels courts to hear oral arguments on the motion within 60 days after the motion is filed.
• Attorney fees: The law mandates the payment of attorney fees, costs, and expenses of litigation incurred in defending against SLAPP suits. Unlike other fee-shifting clauses, the law uses the term “shall” to compel trial courts to award attorney fees, costs, and expenses, when a determination is made that the lawsuit was without merit.

Helpful cases

The following cases predate the 2024 revision of Pennsylvania’s anti-SLAPP law. They might, however, offer guidance regarding how courts evaluate future SLAPP lawsuits.

Penllyn Greene Associates, L.P. v. Clouser (2005)

Developers building houses in Montgomery County sued several residents for contract interference because the residents opposed all development plans at public hearings. Once construction began, developers alleged residents delayed construction by removing survey stakes at the site and falsely communicating to real estate brokers, potential buyers, and news agencies that the property was contaminated by dioxin and agent orange. A trial court denied residents immunity under the Participation in Environmental Law or Regulation Act, the state’s former anti-SLAPP statute, and argued their communication was not aimed at procuring favorable government action. The residents appealed, and an appellate court upheld the prior ruling and clarified that the homebuyers and real estate agents were private citizens who comprised a select audience.

Pennsbury Village Associates, LLC v. McIntyre (2011)

A developer was denied access to build a high-density, mixed-use development by Chester County township. The developer, township, and several residents entered into an agreement in 2005 in which the township supervisors received the right to determine configuration of a contested land’s deed restrictions. After the rejection, the developer sued township supervisor Aaron McIntyre and others, arguing McIntyre’s attempts to influence the County were an intentional breach of contract. In response, McIntyre countered that he should be protected by the Participation in Environmental Law or Regulation Act. A Chester County court judge disagreed, and McIntyre appealed to Commonwealth Court, which sided with him. The developer appealed and by 2011 the state Supreme Court ruled the act does not shield parties who may have already reached a court-approved agreement on an issue. As a result, the Participation in Environmental Law or Regulation Act’s protective reach was limited by pre-existing legal agreements.

Burns v. Fahrner (2022)

A day after Kaitlyn Fahrner filed a lawsuit against Gregory Burns in Clark County, Nevada in 2021 for sexual battery and intentional infliction of emotional distress, Burns filed a defamation lawsuit against Fahrner in Montgomery County. The trial court judge dismissed Burns’ lawsuit and suggested he refile the action in Nevada, a state with a robust anti-SLAPP law. Burns appealed and Fahrner requested attorney fees pursuant to Pa.R.A.P. 2744, a rule that permits an appellate court to award “a reasonable counsel fee… if it determines that an appeal is frivolous.” An appellate court upheld the trial court’s ruling and suggested Burns refile his case in Nevada. The court, however, declined to award attorney fees to Fahrner because Burns’ filings did not impose costs on the defendant that were distressing.

Legislative activity

House Bill 1466 was signed into law on July 17, 2024, by Gov. Josh Shapiro. State Rep. Ryan Bizzaro (D., Erie County) introduced the bill, which was based, in part, on Public Expression Protection Act model legislation developed by the Uniform Law Commission, a conference of lawyers, judges and law professors. The bill was unanimously passed in the Pennsylvania Senate.

Of note

Since 2020, the same model legislation has been enacted in red and blue states alike, including Maine, New Jersey, Kentucky, and Utah. The law applies only to civil lawsuits filed after the law goes into effect.