HOUSE AMENDED PRIOR PRINTER'S NOS. 418, 1248, 1609 PRINTER'S NO. 1632
No. 406 Session of 2001
INTRODUCED BY GERLACH, WAUGH, CORMAN, M. WHITE, TOMLINSON, THOMPSON AND EARLL, FEBRUARY 12, 2001
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES, DECEMBER 12, 2001
AN ACT 1 Amending Title 42 (Judiciary and Judicial Procedure) of the 2 Pennsylvania Consolidated Statutes, establishing a cause of 3 action for frivolous litigation; further providing for 4 wrongful use of civil proceedings; and making an editorial 5 change. 6 The General Assembly of the Commonwealth of Pennsylvania 7 hereby enacts as follows: 8 Section 1. Chapter 83 of Title 42 of the Pennsylvania <-- 9 Consolidated Statutes is amended by adding a subchapter to read: 10 SUBCHAPTER E 11 FRIVOLOUS LITIGATION 12 Sec. 13 8350.1. Frivolous litigation. 14 8350.2. Elements of cause of action. 15 8350.3. Procedure. 16 8350.4. Damages. 17 8350.5. Other remedies. 18 8350.6. Joint liability.
1 § 8350.1. Frivolous litigation. 2 (a) Cause of action established.--There is established a 3 separate cause of action for damages arising out of the filing 4 of a frivolous civil complaint, counterclaim or joinder 5 complaint by an attorney and the law firm of which the attorney 6 is a member or by a party who is not represented by an attorney. 7 The injured party must file this action in the same court and 8 division where the original action or matter was filed. This 9 action shall not be collateral to the original action and shall 10 proceed without reference to its status. 11 (b) Time for filing action.--An action brought pursuant to 12 this subchapter may be filed before the challenged proceeding on 13 the civil complaint, counterclaim or joinder complaint is 14 terminated. 15 (c) Relationship to other action.--The action established 16 under this subchapter is a separate cause of action than that 17 provided for under Subchapter E.1 (relating to wrongful use of 18 civil proceedings). A person may not be precluded from bringing 19 an action pursuant to Subchapter E.1 on the sole basis that the 20 person first brought an action under this subchapter. 21 § 8350.2. Elements of cause of action. 22 A complaint, counterclaim or joinder complaint shall be 23 presumed to be not frivolous unless one of the following 24 elements is proven by a preponderance of the evidence: 25 (1) the civil complaint, counterclaim or joinder 26 complaint is presented primarily for an improper purpose, 27 including, but not limited to, harassment, business 28 interruption, intentional infliction of emotional distress or 29 unwarranted pecuniary gain; 30 (2) the claims set forth in the civil complaint, 20010S0406B1632 - 2 -
1 counterclaim or joinder complaint are not warranted by 2 existing law or by a reasonable argument for the extension, 3 modification or reversal of existing law or the establishment 4 of new law; 5 (3) the allegations and other factual contentions have 6 no reasonable evidentiary support or are not likely to have 7 reasonable evidentiary support, after a reasonable 8 opportunity for further investigation or discovery; or 9 (4) the counterclaim or joinder complaint has no 10 reasonable evidentiary support or is not likely to have 11 reasonable evidentiary support, after a reasonable 12 opportunity for further investigation or discovery. 13 § 8350.3. Procedure. 14 (a) Notice to defendant.--Before filing an action under this 15 subchapter, the plaintiff must notify the defendant in writing 16 of the intention to file the action and attach a copy of the 17 proposed complaint. Each recipient of the complaint shall have 18 20 days in which to withdraw or otherwise cure the civil 19 complaint, counterclaim, or joinder complaint giving rise to the 20 claim of frivolous litigation. 21 (b) Effect of withdrawal or cure.--If the civil complaint, 22 counterclaim, or joinder complaint is withdrawn or otherwise 23 cured, there shall be no basis for the cause of action, except 24 that the plaintiff shall be entitled to recover court costs and 25 reasonable attorney fees if the plaintiff files a motion for 26 such recovery within 30 days of a withdrawal. 27 (c) Effect of recovery.--Recovery by an injured party under 28 this chapter shall not preclude the injured party from 29 recovering damages, other than reasonable attorney fees and 30 court costs, pursuant to Subchapter E.1 (relating to wrongful 20010S0406B1632 - 3 -
1 use of civil proceedings). 2 § 8350.4. Damages. 3 When any element set forth in section 8350.2 (relating to 4 elements of cause of action) has been proven by a preponderance 5 of the evidence, the injured party is entitled to recover the 6 following: 7 (1) The harm normally resulting from any arrest or 8 imprisonment or any dispossession or interference with the 9 advantageous use of the injured party's land, chattels or 10 other things suffered by the injured party during the course 11 of the proceeding. 12 (2) The harm to the injured party's reputation by any 13 defamatory matter relating to the proceeding. 14 (3) The cost of litigation, including, but not limited 15 to, any reasonable attorney fees. 16 (4) Lost income that the injured party has incurred in 17 defending himself. 18 (5) Any other pecuniary loss that has resulted from the 19 proceeding. 20 (6) Any other noneconomic loss caused by the 21 proceedings. 22 § 8350.5. Other remedies. 23 Nothing in this subchapter shall be construed to preclude the 24 court from exercising its inherent supervisory power or from 25 imposing appropriate nonmonetary or monetary sanctions upon 26 attorneys, law firms and unrepresented parties who have engaged 27 in frivolous or bad faith litigation under existing law and 28 rules of procedure. 29 § 8350.6. Joint liability. 30 Absent exceptional circumstances, a law firm shall be held 20010S0406B1632 - 4 -
1 jointly responsible for a frivolous civil complaint, 2 counterclaim or joinder complaint filed by attorneys of the 3 firm. 4 Section 2. The heading of Subchapter E of Chapter 83 of 5 Title 42 is amended to read: 6 SUBCHAPTER [E] E.1 7 WRONGFUL USE OF CIVIL PROCEEDINGS 8 Section 3. Section 8351 of Title 42 is amended by adding a 9 subsection to read: 10 § 8351. Wrongful use of civil proceedings. 11 * * * 12 (c) Relationship to other action.--The action established 13 under this subchapter is a separate cause of action than that 14 provided for under Subchapter E (relating to frivolous 15 litigation). A person may not be precluded from bringing an 16 action pursuant to this subchapter on the sole basis that the 17 person first brought an action under Subchapter E. 18 Section 4. The provisions of this act are severable. If any 19 provision of this act or its application to any person or 20 circumstance is held invalid, the invalidity shall not affect 21 other provisions or applications of this act which can be given 22 effect without the invalid provision or application. 23 Section 5. This act shall take effect in 60 days. 24 SECTION 1. CHAPTER 83 OF TITLE 42 OF THE PENNSYLVANIA <-- 25 CONSOLIDATED STATUTES IS AMENDED BY ADDING A SUBCHAPTER TO READ: 26 SUBCHAPTER E 27 FRIVOLOUS LITIGATION 28 SEC. 29 8350.1. FRIVOLOUS LITIGATION. 30 8350.2. ELEMENTS OF CAUSE OF ACTION. 20010S0406B1632 - 5 -
1 8350.3. PROCEDURE. 2 8350.4. DAMAGES. 3 8350.5. OTHER REMEDIES. 4 8350.6. JOINT LIABILITY. 5 § 8350.1. FRIVOLOUS LITIGATION. 6 (A) CAUSE OF ACTION ESTABLISHED.--THERE IS ESTABLISHED A 7 SEPARATE CAUSE OF ACTION FOR DAMAGES ARISING OUT OF THE FILING 8 OF A FRIVOLOUS CIVIL COMPLAINT, COUNTERCLAIM OR JOINDER 9 COMPLAINT BY AN ATTORNEY, THE LAW FIRM OF WHICH THE ATTORNEY IS 10 A MEMBER OR BY ANY PARTY WHO IS NOT REPRESENTED BY AN ATTORNEY. 11 THE INJURED PARTY MUST FILE THIS ACTION IN THE SAME COURT AND 12 DIVISION WHERE THE ORIGINAL ACTION OR MATTER WAS FILED. THIS 13 ACTION SHALL NOT BE COLLATERAL TO THE ORIGINAL ACTION AND SHALL 14 PROCEED WITHOUT REFERENCE TO ITS STATUS. 15 (B) TIME FOR FILING ACTION.--AN ACTION BROUGHT PURSUANT TO 16 THIS SUBCHAPTER MAY BE FILED BEFORE THE CHALLENGED PROCEEDING ON 17 THE CIVIL COMPLAINT, COUNTERCLAIM OR JOINDER COMPLAINT IS 18 TERMINATED. 19 (C) RELATIONSHIP TO OTHER ACTION.--THE ACTION ESTABLISHED 20 UNDER THIS SUBCHAPTER IS A SEPARATE CAUSE OF ACTION THAN THAT 21 PROVIDED FOR UNDER SUBCHAPTER E.1 (RELATING TO WRONGFUL USE OF 22 CIVIL PROCEEDINGS). A PERSON MAY NOT BE PRECLUDED FROM BRINGING 23 AN ACTION PURSUANT TO SUBCHAPTER E.1 ON THE SOLE BASIS THAT THE 24 PERSON FIRST BROUGHT AN ACTION UNDER THIS SUBCHAPTER. 25 § 8350.2. ELEMENTS OF CAUSE OF ACTION. 26 A COMPLAINT, COUNTERCLAIM OR JOINDER COMPLAINT IS FRIVOLOUS 27 WHEN THE PARTY FILING THE COMPLAINT, COUNTERCLAIM OR JOINDER 28 COMPLAINT HAS NOT PRODUCED ANY REASONABLE EVIDENCE ESTABLISHING <-- 29 PROBABLE CAUSE TO SUPPORT THE FILING OF FACTS ESSENTIAL TO THE <-- 30 ALLEGATIONS SET FORTH IN THE COMPLAINT, COUNTERCLAIM OR JOINDER 20010S0406B1632 - 6 -
1 COMPLAINT OR HAS NOT PROPOSED ANY REASONABLE ACTION TO BE TAKEN <--
2 BY THAT PARTY TO PRODUCE OR PRESENT SUCH EVIDENCE AND ONE OF THE
3 FOLLOWING ELEMENTS IS PROVEN BY A PREPONDERANCE OF THE EVIDENCE:
4 (1) THE CIVIL COMPLAINT, COUNTERCLAIM OR JOINDER
5 COMPLAINT IS PRESENTED PRIMARILY FOR AN IMPROPER PURPOSE,
6 INCLUDING, BUT NOT LIMITED TO, HARASSMENT, INTERRUPTION OF
7 ANY LAWFUL BUSINESS ACTIVITY, INTENTIONAL INFLICTION OF
8 EMOTIONAL DISTRESS OR UNWARRANTED PECUNIARY GAIN; OR
9 (2) THE CLAIMS SET FORTH IN THE CIVIL COMPLAINT,
10 COUNTERCLAIM OR JOINDER COMPLAINT ARE NOT WARRANTED BY
11 EXISTING LAW OR BY A REASONABLE ARGUMENT FOR THE EXTENSION,
12 MODIFICATION OR REVERSAL OF EXISTING LAW OR THE ESTABLISHMENT
13 OF NEW LAW.
14 § 8350.3. PROCEDURE.
15 (A) NOTICE TO DEFENDANT.--BEFORE FILING AN ACTION UNDER THIS
16 SUBCHAPTER, THE PLAINTIFF IN THIS ACTION MUST NOTIFY THE
17 DEFENDANT IN WRITING OF THE INTENTION TO FILE THE ACTION AND
18 ATTACH A COPY OF THE PROPOSED COMPLAINT. EACH RECIPIENT OF THE
19 PROPOSED COMPLAINT SHALL HAVE 20 DAYS IN WHICH TO WITHDRAW OR
20 OTHERWISE CURE THE CIVIL COMPLAINT, COUNTERCLAIM, OR JOINDER
21 COMPLAINT GIVING RISE TO THE CLAIM OF FRIVOLOUS LITIGATION.
22 (B) EFFECT OF WITHDRAWAL OR CURE.--IF THE CIVIL COMPLAINT,
23 COUNTERCLAIM, OR JOINDER COMPLAINT IS WITHDRAWN OR OTHERWISE
24 CURED, THERE SHALL BE NO BASIS FOR THE CAUSE OF ACTION, EXCEPT
25 THAT THE PLAINTIFF SHALL BE ENTITLED TO RECOVER COURT COSTS,
26 EXPENSES AND REASONABLE ATTORNEY FEES IF THE PLAINTIFF FILES A
27 MOTION FOR SUCH RECOVERY WITHIN 30 DAYS OF A WITHDRAWAL.
28 (C) EFFECT OF RECOVERY.--RECOVERY BY AN INJURED PARTY UNDER
29 THIS CHAPTER SHALL NOT PRECLUDE THE INJURED PARTY FROM
30 RECOVERING ANY DAMAGES WHICH THE INJURED PARTY MAY BE ENTITLED
20010S0406B1632 - 7 -
1 TO, PURSUANT TO SUBCHAPTER E.1 (RELATING TO WRONGFUL USE OF 2 CIVIL PROCEEDINGS) AND WHICH HAVE NOT ALREADY BEEN RECOVERED 3 PURSUANT TO THIS CHAPTER. 4 § 8350.4. DAMAGES. 5 WHEN ANY ELEMENT SET FORTH IN SECTION 8350.2 (RELATING TO 6 ELEMENTS OF CAUSE OF ACTION) HAS BEEN PROVEN BY A PREPONDERANCE 7 OF THE EVIDENCE, THE INJURED PARTY IS ENTITLED TO RECOVER THE 8 FOLLOWING: 9 (1) THE HARM NORMALLY RESULTING FROM ANY DISPOSSESSION 10 OR INTERFERENCE WITH THE ADVANTAGEOUS USE OF THE INJURED 11 PARTY'S LAND, CHATTELS OR OTHER THINGS SUFFERED BY THE 12 INJURED PARTY DURING THE COURSE OF THE PROCEEDING. 13 (2) THE HARM TO THE INJURED PARTY'S REPUTATION. 14 (3) THE COST OF LITIGATION, INCLUDING, BUT NOT LIMITED 15 TO, ANY REASONABLE ATTORNEY FEES. 16 (4) LOST INCOME THAT THE INJURED PARTY HAS INCURRED IN 17 DEFENDING HIMSELF. 18 (5) ANY OTHER PECUNIARY LOSS THAT HAS RESULTED FROM THE 19 PROCEEDING. 20 (6) ANY OTHER NONECONOMIC LOSS CAUSED BY THE 21 PROCEEDINGS. 22 § 8350.5. OTHER REMEDIES. 23 NOTHING IN THIS SUBCHAPTER SHALL BE CONSTRUED TO PRECLUDE THE 24 COURT FROM EXERCISING ITS INHERENT SUPERVISORY POWER OR FROM 25 IMPOSING APPROPRIATE NONMONETARY OR MONETARY SANCTIONS UPON 26 ATTORNEYS, LAW FIRMS AND UNREPRESENTED PARTIES WHO HAVE ENGAGED 27 IN FRIVOLOUS OR BAD FAITH LITIGATION UNDER EXISTING LAW AND 28 RULES OF PROCEDURE. 29 § 8350.6. JOINT LIABILITY. 30 ABSENT EXCEPTIONAL CIRCUMSTANCES, A LAW FIRM SHALL BE HELD 20010S0406B1632 - 8 -
1 JOINTLY RESPONSIBLE FOR A FRIVOLOUS CIVIL COMPLAINT, 2 COUNTERCLAIM OR JOINDER COMPLAINT FILED BY ATTORNEYS OF THE 3 FIRM. 4 SECTION 2. THE HEADING OF SUBCHAPTER E OF CHAPTER 83 OF 5 TITLE 42 IS AMENDED TO READ: 6 SUBCHAPTER [E] E.1 7 WRONGFUL USE OF CIVIL PROCEEDINGS 8 SECTION 3. SECTION 8351 OF TITLE 42 IS AMENDED BY ADDING A 9 SUBSECTION TO READ: 10 § 8351. WRONGFUL USE OF CIVIL PROCEEDINGS. 11 * * * 12 (C) RELATIONSHIP TO OTHER ACTION.--THE ACTION ESTABLISHED 13 UNDER THIS SUBCHAPTER IS A SEPARATE CAUSE OF ACTION THAN THAT 14 PROVIDED FOR UNDER SUBCHAPTER E (RELATING TO FRIVOLOUS 15 LITIGATION). A PERSON MAY NOT BE PRECLUDED FROM BRINGING AN 16 ACTION PURSUANT TO THIS SUBCHAPTER ON THE SOLE BASIS THAT THE 17 PERSON FIRST BROUGHT AN ACTION UNDER SUBCHAPTER E. 18 SECTION 4. THE PROVISIONS OF THIS ACT ARE NONSEVERABLE. IN 19 THE EVENT ANY PROVISION IN THIS ACT IS HELD LEGALLY OR 20 CONSTITUTIONALLY IMPERMISSIBLE, SUSPENDED BY THE JUDICIARY, 21 SUPERSEDED BY RULE OF COURT, RULED TO BE THE REGULATION OF THE 22 PRACTICE OF LAW OR OTHERWISE RENDERED INOPERATIVE BY JUDICIAL 23 ACTION THIS ENTIRE ACT SHALL BE VOID. 24 SECTION 5. THIS ACT SHALL TAKE EFFECT IN 60 DAYS. A12L42SFL/20010S0406B1632 - 9 -