PRIOR PRINTER'S NO. 1502 PRINTER'S NO. 3012
No. 1285 Session of 2001
INTRODUCED BY KENNEY, BLAUM, TIGUE, FICHTER, STABACK, ADOLPH,
BARRAR, BASTIAN, BELARDI, CAPPABIANCA, CIVERA, CLARK, CLYMER,
L. I. COHEN, DALEY, EACHUS, FRANKEL, GEIST, GEORGE, GODSHALL,
HALUSKA, HARHAI, HERMAN, HORSEY, LEDERER, MANN, MARSICO,
NAILOR, PETRARCA, PRESTON, READSHAW, SAINATO, SHANER,
B. SMITH, SOLOBAY, E. Z. TAYLOR, J. TAYLOR, THOMAS, TULLI,
WALKO, WASHINGTON, J. WILLIAMS, WILT, WOJNAROSKI AND
YOUNGBLOOD, APRIL 4, 2001
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, DECEMBER 5, 2001
AN ACT
1 Prohibiting false claims; imposing duties on the Attorney <--
2 General and on district attorneys; and providing for
3 procedures and for penalties.
4 TABLE OF CONTENTS
5 Chapter 1. Preliminary Provisions
6 Section 101. Short title.
7 Section 102. Definitions.
8 Section 103. Construction.
9 Chapter 3. False Claims
10 Section 301. Offenses defined.
11 Section 302. False claims jurisdiction.
12 Section 303. Procedure.
13 Chapter 5. Qui Tam Actions
14 Section 501. General provisions.
15 Section 502. Commonwealth funds.
1 Section 503. Political subdivision funds.
2 Section 504. Complaints relating to Commonwealth and political
3 subdivision funds.
4 Section 505. Intervention by political subdivision.
5 Section 506. Extension of time.
6 Section 507. Other actions prohibited.
7 Section 508. Exclusions.
8 Section 509. Responsibility for prosecution.
9 Section 510. Dismissal of action.
10 Section 511. Settlement.
11 Section 512. Election not to proceed.
12 Section 513. Intervention.
13 Section 514. Proceeds.
14 Section 515. Reversion to General Fund.
15 Section 516. Expenses.
16 Chapter 7. General Provisions
17 Section 701. Rules of civil procedure.
18 Section 702. Stay of discovery.
19 Section 703. Limitations on participation.
20 Section 704. Employee protection.
21 Section 705. Limitations.
22 Section 706. Remedies.
23 Section 707. Enforcement.
24 Section 708. Civil investigative demand.
25 Section 709. Immunity.
26 Section 710. Regulations.
27 Section 711. Effective date.
28 PROHIBITING FALSE CLAIMS; IMPOSING DUTIES ON THE ATTORNEY <--
29 GENERAL AND ON DISTRICT ATTORNEYS; AND PROVIDING FOR
30 PROCEDURES AND FOR PENALTIES.
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1 TABLE OF CONTENTS
2 CHAPTER 1. PRELIMINARY PROVISIONS
3 SECTION 101. SHORT TITLE.
4 SECTION 102. DEFINITIONS.
5 SECTION 103. CONSTRUCTION.
6 CHAPTER 3. FALSE CLAIMS
7 SECTION 301. OFFENSES DEFINED.
8 SECTION 302. FALSE CLAIMS JURISDICTION.
9 SECTION 303. PROCEDURE.
10 CHAPTER 5. QUI TAM ACTIONS
11 SECTION 501. GENERAL PROVISIONS.
12 SECTION 502. COMMONWEALTH FUNDS.
13 SECTION 503. POLITICAL SUBDIVISION FUNDS.
14 SECTION 504. COMPLAINTS RELATING TO COMMONWEALTH AND POLITICAL
15 SUBDIVISION FUNDS.
16 SECTION 505. INTERVENTION BY POLITICAL SUBDIVISION.
17 SECTION 506. EXTENSION OF TIME.
18 SECTION 507. OTHER ACTIONS PROHIBITED.
19 SECTION 508. EXCLUSIONS.
20 SECTION 509. EMPLOYMENT-RELATED DISCOVERY OF INFORMATION.
21 SECTION 510. RESPONSIBILITY FOR PROSECUTION.
22 SECTION 511. DISMISSAL OF ACTION.
23 SECTION 512. SETTLEMENT.
24 SECTION 513. ELECTION NOT TO PROCEED.
25 SECTION 514. INTERVENTION.
26 SECTION 515. PROCEEDS.
27 SECTION 516. REVERSION TO GENERAL FUND.
28 SECTION 517. EXPENSES.
29 CHAPTER 7. MISCELLANEOUS PROVISIONS
30 SECTION 701. RULES OF CIVIL PROCEDURE.
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1 SECTION 702. STAY OF DISCOVERY.
2 SECTION 703. CONTROL OVER PROSECUTION.
3 SECTION 704. EMPLOYEE PROTECTION.
4 SECTION 705. LIMITATIONS.
5 SECTION 706. REMEDIES.
6 SECTION 707. ENFORCEMENT.
7 SECTION 708. CIVIL INVESTIGATIVE DEMAND.
8 SECTION 709. IMMUNITY.
9 SECTION 710. REGULATIONS.
10 SECTION 711. SEVERABILITY.
11 SECTION 712. EFFECTIVE DATE.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 CHAPTER 1 <--
15 PRELIMINARY PROVISIONS
16 Section 101. Short title.
17 This act shall be known and may be cited as the False Claims
18 Act.
19 Section 102. Definitions.
20 The following words and phrases when used in this act shall
21 have the meanings given to them in this section unless the
22 context clearly indicates otherwise:
23 "Claim." Any request or demand for money, property or
24 services made to any employee, officer or agent of the
25 Commonwealth or of any political subdivision thereof or to any
26 contractor, subcontractor, grantee or other recipient of the
27 Commonwealth or any political subdivision thereof, if any
28 portion of the money, property or services requested or demanded
29 issued from, was provided or will be reimbursed by the
30 Commonwealth, referred to as Commonwealth funds, or by any
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1 political subdivision thereof, referred to as political
2 subdivision funds.
3 "False." In addition to its ordinary meaning, this term also
4 means fraudulent.
5 "Knowing" or "knowingly." A person who, with respect to
6 information, does any of the following:
7 (1) has actual knowledge of the information;
8 (2) acts in deliberate ignorance of the truth or falsity
9 of the information; or
10 (3) acts in reckless disregard of the truth or falsity
11 of the information.
12 Proof of specific intent to defraud shall not be required.
13 "Person." Any natural person, corporation, county, political
14 subdivision, firm, association, legal entity, organization,
15 partnership, business or trust.
16 "Political subdivision." Any city, county, tax or assessment
17 district, municipal or government authority or other legally
18 authorized local governmental entity in this Commonwealth.
19 "Proceeds." The term includes civil penalties as well as
20 double or treble damages as provided in Chapter 3.
21 "Prosecuting authority." The Attorney General and where
22 appropriate the district attorney of any county in which the
23 political subdivision, including the county itself, lies.
24 Section 103. Construction.
25 This act shall be liberally and broadly construed to
26 effectuate its purposes. It shall be applied and interpreted to
27 promote the public interest to eliminate fraud, waste and abuse
28 through the submission of false or fraudulent claims in this
29 Commonwealth or in any of its political subdivisions.
30 CHAPTER 3
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1 FALSE CLAIMS
2 Section 301. Offenses defined.
3 (a) Liability.--A person who commits any of the following
4 acts shall be liable to the Commonwealth or to the political
5 subdivision for three times the amount of damages which the
6 Commonwealth or the political subdivision sustains because of
7 the act of that person and shall also be liable to the
8 Commonwealth or to the political subdivision for the costs of an
9 action brought to recover any of those penalties or damages and
10 shall be liable to the Commonwealth or political subdivision for
11 a civil penalty of not less than $5,000 nor more than $10,000
12 for each false claim:
13 (1) Knowingly presents or causes to be presented to an
14 officer or employee of the Commonwealth or any political
15 subdivision a false claim for payment or approval.
16 (2) Knowingly makes, uses or causes to be made or used a
17 false record or statement to get a false claim paid or
18 approved by the Commonwealth or by any political subdivision.
19 (3) Conspires to defraud the Commonwealth or any
20 political subdivision by getting a false claim allowed or
21 paid by the Commonwealth or by any political subdivision.
22 (4) Has possession, custody or control of public
23 property or money used or to be used by the Commonwealth or
24 by any political subdivision and knowingly delivers or causes
25 to be delivered property of lesser quality, quantity or value
26 than for which the person receives a certificate or receipt.
27 (5) Is authorized to make or deliver a document
28 certifying receipt of property used or to be used by the
29 Commonwealth or by any political subdivision and knowingly
30 makes or delivers a receipt that falsely represents the
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1 quality, quantity or value of the property used or to be
2 used.
3 (6) Knowingly buys or receives as a pledge of an
4 obligation or debt public property from any person who
5 lawfully may not sell or pledge the property.
6 (7) Knowingly makes, uses or causes to be made or used a
7 false record or statement to conceal, avoid or decrease an
8 obligation to pay or transmit money or property to the
9 Commonwealth or any political subdivision.
10 (8) Unknowingly submits a false claim, is a beneficiary
11 of payment by the Commonwealth or political subdivision for
12 that claim, subsequently discovers or recklessly fails to
13 discover that the claim was false and fails to disclose that
14 the claim was false. Disclosure shall be made to the
15 Commonwealth or political subdivision within a reasonable
16 time, but in no event longer than 90 days after discovery of
17 the false claim.
18 (b) Reduced assessment.--Notwithstanding subsection (a), the
19 court shall assess not less than two times nor more than three
20 times the amount of damages which the Commonwealth or the
21 political subdivision sustains because of the act of the person
22 described in subsection (a)(1), and no civil penalty, if the
23 person can demonstrate that:
24 (1) the person committing the violation furnished the
25 prosecuting authority with all information known to that
26 person about the violation within 60 days after the date on
27 which the person first obtained the information;
28 (2) the person fully cooperated with any investigation
29 by the prosecuting authority of the violation; and
30 (3) (i) at the time the person furnished the appropriate
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1 prosecuting authority with all information about the
2 violation, no criminal prosecution, civil action or
3 administrative action had commenced with respect to the
4 violation and the person did not have knowledge or notice
5 of the existence of an investigation into the violation;
6 or
7 (ii) the person had an effective program that could
8 reasonably be expected to prevent and detect violations
9 of law, even if the program did not detect the instant
10 offense.
11 (c) Joint and several liability.--Liability under this
12 section shall be joint and several for any act committed by two
13 or more persons.
14 (d) Limitation.--
15 (1) This section does not apply to any controversy
16 involving an aggregate amount of less than $2,500 in value or
17 where the claim was filed by the individual recipient of
18 benefits or compensation conferred under the act of June 2,
19 1915 (P.L.736, No.338), known as the Workers' Compensation
20 Act, or the act of December 5, 1936 (2nd Sp.Sess., 1937
21 P.L.2897, No.1), known as the Unemployment Compensation Law,
22 or the act of June 13, 1967 (P.L.31, No.21), known as the
23 Public Welfare Code.
24 (2) As used in this subsection, the term "controversy"
25 means any one or more false claims submitted or caused to be
26 submitted by either a person or persons who act pursuant to a
27 common plan, scheme or design in violation of this act.
28 Section 302. False claims jurisdiction.
29 (a) General rule.--If any defendant can be found, resides or
30 transacts business in this Commonwealth or if an act proscribed
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1 by this act occurred within this Commonwealth, an action under
2 this act:
3 (1) involving Commonwealth funds or both Commonwealth
4 and political subdivision funds shall be brought in the
5 Commonwealth Court; or
6 (2) involving exclusively political subdivision funds
7 shall be brought in the Commonwealth Court.
8 (b) Election by prosecuting authority.--When an action is
9 filed by a qui tam plaintiff pursuant to section 501 and the
10 prosecuting authority proceeds with the action pursuant to
11 section 502, 503, 504 or 505, or intervenes in the action
12 pursuant to section 513, the prosecuting authority shall proceed
13 in the Commonwealth Court.
14 Section 303. Procedure.
15 (a) Commonwealth prosecution.--
16 (1) The Attorney General shall diligently investigate
17 violations under section 301 involving Commonwealth funds. If
18 the Attorney General finds that a person has violated or is
19 violating section 301, the Attorney General may bring an
20 action under this act against that person.
21 (2) If the Attorney General brings an action under this
22 act on a claim involving political subdivision funds as well
23 as Commonwealth funds, the Attorney General shall, on the
24 same date that the complaint is filed in this action, serve
25 by mail, return receipt requested, a copy of the complaint on
26 the appropriate district attorney.
27 (3) The district attorney shall have the right to
28 intervene in an action brought by the Attorney General under
29 this act within 90 days after receipt of the complaint
30 pursuant to paragraph (2).
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1 (b) Political subdivision prosecution.--
2 (1) The district attorney shall diligently investigate
3 violations under section 301 involving political subdivision
4 funds. If the district attorney finds that a person has
5 violated or is violating section 301, he may bring an action
6 under this act against that person.
7 (2) The district attorney may refer a matter involving
8 political subdivision funds to the Attorney General at any
9 time. The Attorney General may decline or accept the
10 referral.
11 (3) If the district attorney brings an action on a claim
12 involving Commonwealth funds as well as political subdivision
13 funds, the district attorney shall, on the same date that the
14 complaint is filed in this action, serve by mail, return
15 receipt requested, a copy of the complaint on the Attorney
16 General.
17 (4) Within 90 days after receiving the complaint
18 pursuant to paragraph (2), the Attorney General shall do one
19 of the following:
20 (i) Notify the court that the Attorney General
21 intends to proceed with the action, in which case the
22 Attorney General shall assume primary responsibility for
23 conducting the action and the district attorney shall
24 have the right to continue as a party.
25 (ii) Notify the court that the Attorney General
26 declines to prosecute the action, in which case the
27 district attorney shall have the right to conduct the
28 action on its own.
29 (iii) Proceed jointly with the district attorney,
30 assuming coequal responsibility for prosecution of the
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1 action.
2 CHAPTER 5
3 QUI TAM ACTIONS
4 Section 501. General provisions.
5 (a) When action may be brought.--A person may bring a qui
6 tam action for a violation of this act for the person and either
7 for the Commonwealth in the name of the Commonwealth if any
8 Commonwealth funds are involved or for a political subdivision
9 in the name of the political subdivision if political
10 subdivision funds are exclusively involved. A qui tam action may
11 be brought alleging fraud involving both Commonwealth and
12 political subdivision funds. The person bringing the qui tam
13 action shall be referred to as the qui tam plaintiff. Once
14 filed, the qui tam action may be dismissed only by the written
15 consent of the court and the prosecuting authority after a
16 hearing, taking into account the best interests of the parties
17 involved and the public purposes of this act.
18 (b) Filing.--A complaint filed by a qui tam plaintiff under
19 this act shall be filed ex parte under seal with the Clerk of
20 the Commonwealth Court or ex parte under seal in the appropriate
21 Federal district court if Federal funds are also involved, and
22 the complaint and all related pleadings shall remain under seal
23 for 90 days from the date of service. No service shall be made
24 on the defendant until after the complaint is unsealed by order
25 of the court.
26 (c) Service.--
27 (1) Within three days of the complaint being filed
28 pursuant to subsection (b), the qui tam plaintiff shall serve
29 by mail, return receipt requested, the Attorney General and
30 the General Counsel with a copy of the complaint and a
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1 written disclosure of substantially all material evidence and
2 information the qui tam plaintiff possesses at that time.
3 (2) Where the complaint involves both Commonwealth and
4 political subdivision funds, or exclusively political
5 subdivision funds, the prosecuting authority shall serve a
6 copy of the complaint, return receipt requested, to counsel
7 for the political subdivision.
8 Section 502. Commonwealth funds.
9 Within 90 days after receiving a complaint alleging
10 violations which involve Commonwealth funds, but not political
11 subdivision funds, the Attorney General shall do either of the
12 following:
13 (1) Notify the court that it intends to proceed with the
14 action and petition the court to have the case unsealed. The
15 court may grant the Attorney General's request to lift the
16 seal. The court may, upon motion by the Attorney General,
17 order a partial unsealing where appropriate.
18 (2) Notify the court that it declines to prosecute the
19 action, in which case the complaint may be unsealed by the
20 court within 20 days after written notification is made by
21 the Attorney General to the qui tam plaintiff and counsel
22 that the Attorney General does not wish to intervene. Upon
23 such notification, the qui tam plaintiff shall have the right
24 to conduct the action.
25 Section 503. Political subdivision funds.
26 (a) Procedure.--Within 30 days after receiving a complaint
27 alleging violations which exclusively involve political
28 subdivision funds, the Attorney General shall promptly forward
29 the complaint and written disclosure to the appropriate district
30 attorney for review and disposition and shall notify in writing
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1 the qui tam plaintiff and counsel of the transfer.
2 (b) Duty of district attorney.--Within 60 days after the
3 Attorney General forwards the complaint and written disclosure
4 under subsection (a), the district attorney shall do either of
5 the following:
6 (1) Notify the court that it intends to proceed with the
7 action and petition the court to have the case unsealed. If
8 the court grants the district attorney's request, the seal
9 shall be lifted.
10 (2) Notify the court that it declines to take over the
11 action, in which case the seal may be lifted within 20 days
12 after such notification has been made and the qui tam
13 plaintiff shall have the right to conduct the action.
14 Section 504. Complaints relating to Commonwealth and political
15 subdivision funds.
16 (a) Complaints.--Within 30 days after receiving a complaint
17 alleging violations which involve or allege both Commonwealth
18 and political subdivision funds, the Attorney General shall
19 forward copies of the complaint and written disclosure to the
20 appropriate district attorney and shall coordinate its review
21 and investigation with those of the district attorney.
22 (b) Procedure.--Within 90 days after receiving a complaint
23 alleging violations which involve or allege both Commonwealth
24 and political subdivision funds, the Attorney General shall do
25 one of the following:
26 (1) Notify the court in writing that the Attorney
27 General intends to proceed with the action, in which case the
28 seal shall be lifted and service effected on the defendant.
29 (2) Notify the court in writing that the Attorney
30 General declines to take over the action but that the
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1 district attorney involved intends to proceed with the
2 action, in which case the seal shall be lifted and the action
3 shall be conducted by the district attorney.
4 (3) Notify the court that both the Attorney General and
5 the district attorney decline to take over the action, in
6 which case the seal may be lifted within 20 days after
7 notification has been made and the qui tam plaintiff shall
8 have the right to conduct the action.
9 Section 505. Intervention by political subdivision.
10 If the Attorney General proceeds with the action under
11 section 503(b)(1), the district attorney shall be permitted to
12 intervene in the action within 60 days after the Attorney
13 General notifies the court of his intentions.
14 Section 506. Extension of time.
15 Upon a showing of good cause and reasonable diligence in his
16 investigation, the prosecuting authority may move the court for
17 reasonable extensions of time during which the complaint will
18 remain under seal. The qui tam plaintiff shall be notified of
19 any extensions requested under this section. Any such motions
20 may be supported by affidavits or other submissions in camera.
21 Section 507. Other actions prohibited.
22 When a qui tam plaintiff brings an action under this act, no
23 other person shall be permitted to bring a related action under
24 this act based on the same or similar facts underlying the
25 pending action.
26 Section 508. Exclusions.
27 (a) General rule.--No court shall have jurisdiction over an
28 action brought under this chapter:
29 (1) Which relies upon the public disclosure of specific
30 allegations or specific transactions in a criminal, civil or
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1 administrative hearing, in a governmental report, hearing,
2 audit or investigation or from the news media, unless the
3 action is brought by or intervened in by a prosecuting
4 authority or the qui tam plaintiff is an original source of
5 the information.
6 (2) By a prisoner against any official or employee of
7 the Commonwealth or a political subdivision for acts relating
8 to the operations and expenditures of a correctional agency
9 or facility.
10 (3) Based upon allegations or transactions which are the
11 subject of an investigation, a settlement agreement, or any
12 civil or administrative proceeding, in which the Commonwealth
13 or political subdivision is already a party.
14 (b) Definition.--As used in this section, the term "original
15 source" means an individual who has voluntarily provided the
16 information to the prosecuting authority before filing an action
17 based on that information and either has direct and independent
18 knowledge of the information on which the allegations are based
19 or directly or indirectly provided the impetus, basis or
20 catalyst for the investigation, hearing, audit or report which
21 led to the public disclosure.
22 Section 509. Responsibility for prosecution.
23 If the prosecuting authority proceeds with the action, it
24 shall have the primary responsibility for prosecuting the
25 action. The qui tam plaintiff shall have the right to continue
26 with all rights and obligations as a full party to the action.
27 Section 510. Dismissal of action.
28 The Commonwealth or political subdivision may seek to dismiss
29 the action for good cause notwithstanding the objections of the
30 qui tam plaintiff if the qui tam plaintiff has been notified by
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1 the prosecuting authority of the filing of the motion and the
2 court has provided the qui tam plaintiff with an adequate
3 opportunity to oppose and be heard on the motion.
4 Section 511. Settlement.
5 (a) General rule.--The prosecuting authority may settle the
6 action with the defendant notwithstanding the objections of the
7 qui tam plaintiff if the court determines that the proposed
8 settlement is fair, adequate and reasonable under all of the
9 circumstances to all parties involved.
10 (b) Consultation with political subdivision.--The district
11 attorney shall consult with the political subdivision regarding
12 any proposed settlement.
13 Section 512. Election not to proceed.
14 If the prosecuting authority elects not to proceed, the qui
15 tam plaintiff shall have the right to conduct the action. If the
16 prosecuting authority so requests, it shall be served with
17 copies of all pleadings filed in the action and supplied with
18 copies of all deposition transcripts.
19 Section 513. Intervention.
20 Upon timely application, the court may permit the prosecuting
21 authority to intervene in an action with which it had initially
22 declined to proceed if the interest of the Commonwealth or
23 political subdivision in recovery of the property or funds
24 involved is not being adequately represented by the qui tam
25 plaintiff.
26 Section 514. Proceeds.
27 (a) Attorney General.--If the Attorney General initiates an
28 action under section 303(a) or assumes control of an action
29 initiated by the district attorney pursuant to section
30 303(b)(4)(ii), the Attorney General shall receive a fixed 33% of
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1 the proceeds of the action or settlement of the claim, which
2 funds shall be used to support and expand its ongoing
3 investigation and prosecution of false claims violations in this
4 Commonwealth or to support other investigation and prosecution
5 efforts.
6 (b) District attorney.--If a district attorney initiates and
7 conducts an action pursuant to section 303(b), the office of the
8 district attorney shall receive a fixed 33% of the proceeds of
9 the action or settlement of the claim, which funds shall be used
10 to support and expand its ongoing investigation and prosecution
11 of false claims violations within its jurisdiction or to support
12 other investigation and prosecution efforts.
13 (c) Award of portion of recovery.--If a district attorney
14 intervenes in an action initiated by the Attorney General
15 pursuant to section 303(a)(3) or remains a party to an action
16 assumed by the Attorney General pursuant to section 303(b)(4)(i)
17 and (iii), the court may award the office of the district
18 attorney a portion of the Attorney General's fixed 33% of the
19 recovery under subsection (a), taking into account the district
20 attorney's role in investigating and conducting the action and
21 the resources of the office expended on the prosecution.
22 (d) Qui tam recovery.--
23 (1) If the prosecuting authority proceeds with an action
24 brought by a qui tam plaintiff under this act, the qui tam
25 plaintiff shall, subject to subsections (g) and (h), receive
26 not less than 20% nor more than 33% of the full proceeds of
27 the action or settlement of the claim, depending upon the
28 extent to which the qui tam plaintiff substantially
29 contributed to the overall prosecution of the action. If the
30 prosecuting authority and the qui tam plaintiff cannot reach
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1 an agreement concerning the percentage of proceeds to be
2 distributed to the qui tam plaintiff, the determination shall
3 be made by the court after an evidentiary hearing.
4 (2) When it conducts the action, the Attorney General or
5 the district attorney shall receive a fixed 33% of the
6 proceeds of the action or settlement of the claim, which
7 funds shall be used to support and expand its ongoing
8 investigation and prosecution of false claims made against
9 the Commonwealth or political subdivision or otherwise to
10 investigate or prosecute consistent with the duties of these
11 offices.
12 (3) When both the Attorney General and the district
13 attorney are involved as coparties in a qui tam action
14 pursuant to section 504, the court in its discretion may
15 award the district attorney a portion of the Attorney
16 General's fixed 33% of the recovery, taking into account the
17 district attorney's cooperation and contribution to
18 investigating and conducting the action.
19 (e) Decline to proceed.--If the prosecuting authority
20 declines to proceed with an action, the qui tam plaintiff shall,
21 subject to subsections (g) and (h), receive an amount which the
22 court decides is reasonable for collecting the civil penalty and
23 damages on behalf of the Commonwealth or political subdivision.
24 The amount awarded by the court shall be not less than 30% nor
25 more than 50% of the proceeds of the action or settlement and
26 shall be paid out of the proceeds of the action or settlement of
27 the claim.
28 (f) Allocation of proceeds for costs of annual audit.--The
29 controller, board of auditors or other government auditor
30 performing the annual audit of recoveries as provided under
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1 subsection (k) shall receive a fixed 1% of the proceeds of the
2 action or settlement of the claim, which funds shall be used to
3 defray the costs of the annual audit.
4 (g) Present or former employee.--If a qui tam action is
5 brought by a present or former employee of the Commonwealth or
6 political subdivision, the qui tam plaintiff shall not be
7 entitled to any minimum guaranteed recovery from the proceeds.
8 If the prosecuting authority and the qui tam plaintiff cannot
9 reach an agreement concerning the percentage of proceeds to be
10 distributed to the qui tam plaintiff, the determination shall be
11 made by the court. The court may award the qui tam plaintiff
12 those sums from the proceeds as it considers appropriate, but in
13 no case more than 33% of the proceeds if the prosecuting
14 authority goes forth with the action or 50% if it declines to go
15 forth, taking into account the significance of the information,
16 the role of the qui tam plaintiff in advancing the case to
17 litigation and the scope of and response to the qui tam
18 plaintiff's attempts to report and gain recovery of the falsely
19 claimed funds through official channels.
20 (h) Fraudulent activity.--A person who has been convicted of
21 a crime, either in the same or another jurisdiction, based on
22 participation in the fraudulent activity at issue in the action
23 under this act shall under no circumstances be permitted to
24 participate in any action under this act as a qui tam plaintiff.
25 (i) Present or former investigators.--Notwithstanding any
26 other provision of this act, any present or former sworn law
27 enforcement officer, city controller, other government
28 investigator, auditor or inspector general or other auditor or
29 investigator of a person, who obtains information regarding a
30 false claim in the course of his duties, whether or not as an
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1 employee or a contractor, shall be precluded from participating
2 in the proceeds of a qui tam action on the basis of that
3 information unless that officer, city controller, government
4 investigator, auditor or inspector general or other auditor or
5 investigator has presented such information to the person and
6 the person fails to take appropriate action within a reasonable
7 time.
8 (j) Use of recoveries.--
9 (1) Proceeds recovered under this act by the prosecuting
10 authority or awarded to the government auditor pursuant to
11 subsection (f) shall be placed in the General Fund of the
12 Commonwealth, the operating fund of the county of the
13 district attorney or the operating fund of the county of the
14 government auditor, as appropriate.
15 (2) Notwithstanding any other provision of law to the
16 contrary, the Commonwealth, county of the district attorney
17 or the county of the government auditor, as appropriate,
18 shall immediately make such funds available for expenditure,
19 without restriction, by the prosecuting authority or
20 government auditor for the purposes specified elsewhere in
21 this act. The entity having budgetary control over such funds
22 may not anticipate future recoveries in the adoption or
23 approval of the budget for the prosecuting authority.
24 (k) Annual audit of recoveries.--It shall be the
25 responsibility of the Commonwealth, the county of the district
26 attorney, or both, as appropriate, to provide, through the
27 controller, board of auditors or other appropriate auditor, an
28 annual audit of all recoveries under this act. The audit shall
29 be made public, subject to the right of the prosecuting
30 authority to redact portions of the audit which it reasonably
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1 believes will compromise investigations or criminal proceedings,
2 and shall be submitted to the Attorney General's office by
3 September 30 of each year.
4 (l) Annual report.--The Attorney General shall annually
5 submit a report to the Appropriations Committee and the
6 Judiciary Committee of the Senate and the Appropriations
7 Committee and Judiciary Committee of the House of
8 Representatives, specifying the recoveries obtained under this
9 act. The report shall give an accounting of all moneys recovered
10 through the sale of any property seized in satisfaction of any
11 judgment arising from an action under this act.
12 (m) Recoveries and appropriations.--Recoveries or future
13 recoveries under this act shall be in addition to any
14 appropriation made to the office of the prosecuting authority.
15 Section 515. Reversion to General Fund.
16 (a) General rule.--The portion of the proceeds not
17 distributed under section 514 shall revert to the General Fund
18 when the underlying false claims involved Commonwealth funds
19 exclusively and to the political subdivision when the underlying
20 false claims involved political subdivision funds exclusively.
21 When petitioned to do so, the court shall make an apportionment
22 of the recovered proceeds between the Commonwealth and political
23 subdivision based on their relative share of the funds falsely
24 claimed.
25 (b) Reimbursement.--When an insurer, guarantor or surety has
26 suffered a loss on an underlying false claim through:
27 (1) reimbursing the Commonwealth or political
28 subdivision; or
29 (2) directly paying a claimant; and
30 (3) when the proceeds reverting to the operating fund
20010H1285B3012 - 21 -
1 under this section exceed any uninsured loss to the
2 Commonwealth or the political subdivision;
3 the insurer, guarantor or surety shall be reimbursed for its
4 loss before further distribution is made under this act.
5 Section 516. Expenses.
6 If the Commonwealth, political subdivision or qui tam
7 plaintiff prevails in or settles any action under this act, the
8 qui tam plaintiff shall receive an amount for all reasonable
9 expenses incurred in the prosecution of the claim, including
10 expert witness fees plus reasonable litigation costs and
11 attorney fees. All expenses, costs and attorney fees shall be
12 awarded against the defendant, and under no circumstances shall
13 they be the responsibility of the prosecuting authority.
14 CHAPTER 7
15 GENERAL PROVISIONS
16 Section 701. Rules of civil procedure.
17 Except where this act provides otherwise, actions under this
18 act shall be governed by the Pennsylvania Rules of Civil
19 Procedure.
20 Section 702. Stay of discovery.
21 (a) General rule.--The court may stay discovery for a period
22 of not more than 90 days if the prosecuting authority or the
23 General Counsel shows that discovery would interfere with an
24 investigation or a prosecution of a criminal or civil matter
25 arising out of the same or similar facts, regardless of whether
26 the prosecuting authority proceeds with the action. Such a
27 showing shall be conducted in camera. The court may extend the
28 90-day period upon a further showing in camera that the
29 prosecuting authority or the General Counsel has pursued the
30 criminal or civil investigation or proceedings with reasonable
20010H1285B3012 - 22 -
1 diligence and that any proposed discovery in the action under
2 this act would interfere with the ongoing criminal or civil
3 investigation or proceedings.
4 (b) Criminal action.--When a criminal action has commenced
5 based upon the same or similar facts underlying the pending
6 action under this act, discovery by the defendant in the pending
7 action under this act shall be confined to that available to a
8 criminal defendant under the Rules of Criminal Procedure and the
9 United States and the Constitution of the Commonwealth of
10 Pennsylvania. The defendant in the pending action under this act
11 may petition the court for a stay of proceedings pending the
12 conclusion of the criminal action.
13 Section 703. Limitations on participation.
14 Upon a showing by the prosecuting authority by a
15 preponderance of the evidence that unrestricted participation
16 during the course of the litigation by the person initiating the
17 action would interfere with or unduly delay the prosecuting
18 authority's prosecution of the case or would be repetitious,
19 irrelevant or for purposes of harassment, the court may, in its
20 discretion, impose limitations on the person's participation,
21 including, but not limited to, the following:
22 (1) limiting the number of witnesses the person may
23 call;
24 (2) limiting the length of the testimony of these
25 witnesses;
26 (3) limiting the person's cross-examination of
27 witnesses; or
28 (4) otherwise limiting the participation by the person
29 in the litigation.
30 Section 704. Employee protection.
20010H1285B3012 - 23 -
1 (a) Disclosing information.--No employer shall solicit,
2 attempt or conspire to prevent, make, adopt or enforce any rule,
3 regulation or policy preventing an employee from disclosing
4 information to a Federal, State or local law enforcement agency
5 or from acting in furtherance of the investigation of,
6 initiation of, testimony in or assistance in filing an action
7 under this act.
8 (b) Discrimination.--No employer shall discharge, demote,
9 suspend, threaten, harass, deny promotion to or in any other
10 manner discriminate, or solicit, attempt or conspire to
11 discriminate against an employee in the terms of and conditions
12 of employment because of lawful acts done by the employee on
13 behalf of the employee or others in disclosing information to a
14 Federal, State or local government or law enforcement agency or
15 in furthering false claims action, including investigation for,
16 initiation of, testimony for or assistance in an action filed or
17 to be filed under this act.
18 (c) Good faith reporting to employer.--No employer may
19 discharge, threaten or otherwise discriminate or retaliate
20 against an employee regarding the employee's compensation,
21 terms, conditions, location or privileges of employment because
22 the employee made or is about to make a good faith report to the
23 employer regarding a false claim under this act, regardless of
24 whether the report is made or to be made orally or in writing.
25 (d) Penalty.--An employer who violates subsection (a), (b)
26 or (c) shall be liable for all relief necessary to make the
27 employee whole, including reinstatement with the same seniority
28 status that the employee would have had but for the
29 discrimination, three times the amount of back pay, prevailing
30 interest on the back pay, compensation for any special damage
20010H1285B3012 - 24 -
1 sustained as a result of the discrimination and, where
2 appropriate, punitive damages. Except in cases alleging
3 intentional misconduct, punitive damages against a person shall
4 not exceed 200% of the compensatory damages awarded. In
5 addition, the employer shall be required to pay all litigation
6 costs and reasonable attorney fees. An employee may bring an
7 action in the Commonwealth Court for the relief provided in this
8 subsection.
9 (e) Limitations.--An employee who is discharged, demoted,
10 suspended, harassed, denied promotion, threatened with
11 termination or in any other manner discriminated against in the
12 terms and conditions of employment by his employer because of
13 participation in conduct which directly or indirectly resulted
14 in a false claim being submitted to the Commonwealth or a
15 political subdivision shall be entitled to the remedies under
16 subsection (d) if the employee voluntarily discloses information
17 to a Federal, State or local government or law enforcement
18 agency or acted in furtherance of a false claims action,
19 including investigation for, initiation of, testimony for or
20 assistance in an action filed or to be filed.
21 Section 705. Limitations.
22 (a) Time of filing.--An action under this act may not be
23 filed more than six years after the date on which the violation
24 of this act is completed or more than three years after the date
25 of discovery by the prosecuting authority, but in any event no
26 more than ten years after the date on which the violation of
27 section 301 is completed.
28 (b) Prior acts.--An action under this act may be brought
29 regarding false claims made prior to the effective date of this
30 act if the limitations period set forth in subsection (a) has
20010H1285B3012 - 25 -
1 not elapsed.
2 (c) Proof.--In any action brought under this act, the
3 Commonwealth, the political subdivision or the qui tam plaintiff
4 shall be required to prove all essential elements of the cause
5 of action, including damages, by a preponderance of the
6 evidence.
7 (d) Estoppel.--Notwithstanding any other provision of law, a
8 guilty verdict, guilty plea or nolo contendere plea rendered in
9 a criminal proceeding which alleged a scheme to obtain funds
10 fraudulently from the Commonwealth or a political subdivision
11 shall estop the defendant from denying the essential elements of
12 the offense in any action which involves the same transaction as
13 in the criminal proceeding and which is brought under this act.
14 Section 706. Remedies.
15 (a) Civil remedies.--
16 (1) The Commonwealth Court shall have jurisdiction to
17 prevent and restrain violations of section 301 by issuing
18 appropriate orders, including, but not limited to:
19 (i) Ordering any person to divest himself of any
20 interest, direct or indirect, in any business or entity;
21 imposing reasonable restrictions on the future activities
22 or investments of any person, including, but not limited
23 to, prohibiting any person from engaging in the same type
24 of endeavor or freezing the person's assets.
25 (ii) Making due provisions for the rights of
26 innocent persons, ordering the dissolution of any
27 business or entity, ordering the denial, suspension or
28 revocation of charters of domestic corporations,
29 certificates of authority authorizing foreign
30 corporations to do business in this Commonwealth,
20010H1285B3012 - 26 -
1 licenses, permits or prior approval granted to any
2 business or entity by any department or agency of the
3 Commonwealth or any of its political subdivisions; or
4 prohibiting any business or entity from engaging in any
5 business.
6 (2) Injunctions against false claims:
7 (i) If a person violates or is about to violate this
8 act, the prosecuting authority may commence an action in
9 Commonwealth Court to enjoin such violation.
10 (ii) If a person alienates or disposes of property,
11 or intends to alienate or dispose of property obtained as
12 a result of a violation of this act or property which is
13 traceable to such violation, the prosecuting authority
14 may commence an action in Commonwealth Court to enjoin
15 such alienation or disposition of property, or for a
16 restraining order to prohibit any person from
17 withdrawing, transferring, removing, dissipating or
18 disposing of any such property or property of equivalent
19 value and appoint a temporary receiver to administer such
20 restraining order.
21 (3) In any proceeding under this section, the court
22 shall proceed as soon as practicable to the hearing and
23 determination thereof. Pending final determination, the court
24 may enter preliminary or special injunctions or take such
25 other actions, including the acceptance of satisfactory
26 performance bonds, as it may deem proper.
27 (b) Remedies cumulative.--The provisions of this act are not
28 exclusive, and the remedies provided for in this act shall be in
29 addition to any other remedies provided for in any other law or
30 available under common law.
20010H1285B3012 - 27 -
1 Section 707. Enforcement.
2 (a) Prosecuting authority.--The prosecuting authority shall
3 have the power and duty to enforce this act, including the
4 authority to issue civil investigative demands pursuant to this
5 act, to institute proceedings under this act and to take such
6 actions as may be necessary to ascertain and investigate alleged
7 violations of this act. The prosecuting authority may delegate
8 its powers to investigate and prosecute actions under this act
9 to appropriate Deputy Attorneys General or deputy or assistant
10 district attorneys.
11 (b) Construction.--Nothing contained in this act shall be
12 construed to limit the regulatory or investigative authority of
13 any department or agency of the Commonwealth or political
14 subdivision whose functions might relate to persons, enterprises
15 or matters falling within the scope of this act.
16 Section 708. Civil investigative demand.
17 (a) General rule.--Whenever the prosecuting authority has
18 reason to believe that any person may be in possession, custody
19 or control of any documentary material or information relevant
20 to a false claim investigation, the prosecuting authority may
21 issue in writing and cause to be served upon the person a civil
22 investigative demand requiring such person to:
23 (1) produce such documentary material for inspection and
24 copying;
25 (2) answer in written interrogatories with respect to
26 such documentary material or information;
27 (3) give oral testimony concerning such documentary
28 material or information; or
29 (4) furnish any combination of such material, answers
30 and testimony.
20010H1285B3012 - 28 -
1 (b) Content.--Each demand under this section shall:
2 (1) State the nature of the conduct constituting the
3 alleged false claim violation which is under investigation
4 and the provision of law applicable thereto.
5 (2) If the demand is for the production of documentary
6 material:
7 (i) describe the class or classes of documentary
8 material to be produced thereunder with such definiteness
9 and certainty as to permit the material to be fairly
10 identified;
11 (ii) state that the demand is returnable forthwith
12 or prescribe a return date which will provide a
13 reasonable period of time within which the material so
14 demanded may be assembled and made available for
15 inspection and copying or reproduction; and
16 (iii) identify an investigator to whom the material
17 shall be made available.
18 (3) If the demand is for written interrogatories:
19 (i) set forth with specificity the written
20 interrogatories to be answered;
21 (ii) prescribe dates at which time answers to
22 written interrogatories shall be submitted; and
23 (iii) identify the investigator to whom such answers
24 shall be submitted.
25 (4) If such demand is for the giving of oral testimony:
26 (i) prescribe a date, time and place at which oral
27 testimony should be commenced;
28 (ii) identify the investigator who shall conduct the
29 examination and the person to whom the transcript of such
30 investigation shall be submitted;
20010H1285B3012 - 29 -
1 (iii) specify that such attendance and testimony are
2 necessary to the conduct of the investigation; and
3 (iv) describe the general purpose for which the
4 demand is being issued and the general nature of the
5 testimony, including the primary areas of inquiry, which
6 will be taken pursuant to the demand.
7 (5) Contain the following statement printed
8 conspicuously at the top of the demand:
9 You have the right to seek the assistance of any
10 attorney, and he may represent you in all phases of
11 the false claim investigation of which this civil
12 investigative demand is a part.
13 (c) Limitation.--No demand under this section shall:
14 (1) contain any requirement which would be held to be
15 unreasonable if contained in a subpoena duces tecum issued by
16 any court in connection with a grand jury investigation of
17 the alleged fraud violation; or
18 (2) require the production of any documentary evidence
19 which would be privileged from disclosure if demanded by a
20 subpoena duces tecum issued by any court in connection with a
21 grand jury investigation of the alleged false claim
22 violation.
23 (d) Service.--Service of any demand or any petition filed
24 under this section shall be made in the manner prescribed by the
25 Pennsylvania Rules of Civil Procedure for service of writs and
26 complaints unless otherwise agreed to by the prosecuting
27 authority and the person.
28 (e) Return.--A verified return by the individual serving any
29 demand or petition under this section setting forth the manner
30 of service shall be prima facie proof of such service. In the
20010H1285B3012 - 30 -
1 case of service by registered or certified mail, the return
2 shall be accompanied by the return post office receipt of
3 delivery of the demand.
4 (f) Procedure.--
5 (1) A person upon whom a demand issued under this
6 section has been duly served shall make the demanded material
7 available for inspection and copying or reproduction to an
8 investigator designated in the demand at the principal place
9 of business of the person or at such other place as the
10 investigator and the person thereafter may agree or as the
11 court may direct pursuant to this section on the return date
12 specified in the demand. The person may, upon agreement of
13 the investigator, substitute copies of all or any part of the
14 demanded material for the originals of the demanded material.
15 (2) The investigator to whom any documentary material is
16 so delivered shall take physical possession of the material
17 and shall be responsible for the use made of the material and
18 for its return pursuant to this section. The investigator may
19 cause the preparation of the copies of the documentary
20 material as may be required for official use. While in the
21 possession of the investigator, no material so produced shall
22 be available for examination by any individual other than the
23 prosecuting authority or any investigator without the consent
24 of the person who produced the material. Under such
25 reasonable terms and conditions as the prosecuting authority
26 shall prescribe, documentary material while in the possession
27 of the investigator shall be available for examination by the
28 person who produced the material or any duly authorized
29 representatives of that person.
30 (3) The production of documentary material in response
20010H1285B3012 - 31 -
1 to a civil investigative demand served under this section
2 shall be made under a sworn certificate, in such form as the
3 demand designates, by:
4 (i) in the case of a natural person, the person to
5 whom the demand is directed; or
6 (ii) in the case of a person other than a natural
7 person, a person having knowledge of the facts and
8 circumstances relating to such production and authorized
9 to act on behalf of such person.
10 The certificate shall state that all of the documentary
11 material required by the demand and in the possession,
12 custody or control of the person to whom the demand is
13 directed has been produced and made available to the
14 investigator identified in the demand.
15 (4) Each interrogatory in a civil demand served under
16 this section shall be answered separately and fully in
17 writing under oath and shall be submitted under a sworn
18 certificate, in such form as the demand designates, by:
19 (i) in the case of a natural person, the person to
20 whom the demand is directed; or
21 (ii) in the case of a person other than a natural
22 person, a person or persons responsible for answering
23 each interrogatory.
24 (5) If any interrogatory is objected to, the reasons for
25 the objection shall be stated in the certificate instead of
26 an answer. The certificate shall state that all information
27 required by the demand and in the possession, custody,
28 control or knowledge of the person to whom the demand is
29 directed has been submitted. To the extent that any
30 information is not furnished, the information shall be
20010H1285B3012 - 32 -
1 identified and reasons set forth with particularity regarding
2 the reasons why the information was not furnished.
3 (6) (i) The examination of any person pursuant to a
4 civil investigative demand for oral testimony served
5 under this section shall be deemed an "official
6 proceeding" within the meaning of 18 Pa.C.S. § 4902(a)
7 (relating to perjury). The examination shall be taken
8 before an officer authorized to administer oaths and
9 affirmations by the laws of this Commonwealth. The
10 officer before whom the testimony is to be taken shall
11 put the witness on oath or affirmation and shall,
12 personally or by someone acting under the direction of
13 the officer and in the officer's presence, record the
14 testimony of the witness. The testimony shall be taken
15 accurately and shall be transcribed. When the testimony
16 is fully transcribed, a copy of the transcript shall be
17 promptly forwarded to the designated person. This
18 subsection shall not preclude the taking of testimony by
19 any means authorized by, and in a manner consistent with,
20 the Pennsylvania Rules of Civil Procedure.
21 (ii) The investigator conducting the examination
22 shall exclude from the place where the examination is
23 held all persons except the person giving the testimony,
24 the attorney for and any other representative of the
25 person giving the testimony, the prosecuting authority,
26 any person who may be agreed upon by the prosecuting
27 authority and the person giving the testimony, and any
28 stenographer taking such testimony.
29 (iii) The oral testimony of any person taken
30 pursuant to a civil investigative demand served under
20010H1285B3012 - 33 -
1 this section shall be taken in the county where the
2 office of the investigator conducting the examination is
3 situated, or in such other place as may be agreed upon by
4 the investigator and such person.
5 (iv) When the testimony is fully transcribed, the
6 investigator shall afford the witness, who may be
7 accompanied by counsel, a reasonable opportunity to
8 examine and read the transcript, unless such examination
9 and reading are waived by the witness. Any changes in
10 form or substance which the witness desires to make shall
11 be entered and identified upon the transcript by the
12 officer or the investigator, with a statement of the
13 reasons given by the witness for making such changes. The
14 transcript shall then be signed by the witness, unless
15 the witness in writing waives the signing, is ill, cannot
16 be found or refuses to sign. If the transcript is not
17 signed by the witness within 30 days after being afforded
18 a reasonable opportunity to examine it, the officer or
19 the investigator shall sign it and state on the record
20 the fact of the waiver, illness, absence of the witness
21 or the refusal to sign, together with the reasons, if
22 any, given therefor.
23 (v) Upon payment of reasonable charges therefor, the
24 investigator shall furnish a copy of the transcript to
25 the witness only, except that the prosecuting authority
26 may, for good cause, limit such witness to inspection of
27 the official transcript of the witness' testimony.
28 (vi) Any person compelled to appear for oral
29 testimony under a civil investigative demand may be
30 accompanied, represented and advised by counsel. Counsel
20010H1285B3012 - 34 -
1 may advise the person, in confidence, with respect to any
2 question asked of that person. The person or counsel may
3 object on the record to any question, in whole or in
4 part, and shall briefly state for the record the reason
5 for the objection. An objection may be made, received and
6 entered upon the record when it is claimed that such
7 person is entitled to refuse to answer the question on
8 the grounds of any constitutional or other legal right or
9 privilege, including the privilege against self-
10 incrimination. The person may not otherwise object to or
11 refuse to answer any question, and may not directly or
12 through counsel otherwise interrupt the oral examination.
13 If the person refuses to answer any question, a petition
14 may be filed in the Commonwealth Court under section
15 708(g) for an order compelling the person to answer the
16 question.
17 (7) Upon completion of:
18 (i) the false claims investigation for which any
19 documentary material was produced under this section; and
20 (ii) any case or proceeding arising from such
21 investigation;
22 the investigator shall return to the person who produced the
23 material all of the material other than copies of the
24 material made pursuant to this section which have not passed
25 into the control of any court or grand jury through
26 introduction into the record of such case or proceeding.
27 (8) When documentary material has been produced by a
28 person under this section for use in a false claims
29 investigation and no case or proceeding arising from the
30 investigation has been instituted within a reasonable time
20010H1285B3012 - 35 -
1 after completion of the examination and analysis of all
2 evidence assembled in the course of the investigation, the
3 person shall be entitled, upon written demand made upon the
4 prosecuting authority, to the return of all documentary
5 material, other than copies of the material made pursuant to
6 this section, so produced by that person.
7 (g) Failure to comply.--Whenever a person fails to comply
8 with a civil investigative demand that is served upon him under
9 this section or whenever satisfactory copying or reproduction of
10 any of the material cannot be done and the person refuses to
11 surrender the material, the prosecuting authority may file in
12 the Commonwealth Court and serve upon the person a petition for
13 an order of the court for the enforcement of this section.
14 (h) Petition for relief.--
15 (1) Within 20 days after the service of any demand under
16 this section upon any person or at any time before the return
17 date specified in the demand, whichever period is shorter,
18 the person may file in the Commonwealth Court and serve upon
19 the prosecuting authority a petition for an order of the
20 court modifying or setting aside this demand. The time
21 allowed for compliance with the demand, in whole or in part,
22 as deemed proper and ordered by the court shall not run
23 during the pendency of the petition in the court. The
24 petition shall specify each ground upon which the petitioner
25 relies in seeking the relief and may be based on any failure
26 of the demand to comply with the provisions of this section
27 or on any constitutional or other legal right or privilege of
28 the person.
29 (2) At any time during which the prosecuting authority
30 is in custody or control of documentary material delivered by
20010H1285B3012 - 36 -
1 a person in compliance with a demand under this section, the
2 person may file in the Commonwealth Court and serve upon the
3 prosecuting authority a petition for an order of the court
4 requiring the performance of any duty imposed by this
5 section.
6 (3) Whenever a petition is filed in the Commonwealth
7 Court, the court shall have jurisdiction to hear and
8 determine the matter so presented and, after a hearing at
9 which all parties are represented, to enter such order or
10 orders as may be required to carry into effect the provisions
11 of this section.
12 (i) Definition.--As used in this section, the term
13 "documentary material" includes, but is not limited to, any
14 book, paper, record, recording, tape, report, memorandum, data,
15 written or electronic communication or other document relating
16 to the business affairs of any person, enterprise or matter
17 falling within the purview of this act.
18 Section 709. Immunity.
19 Whenever any individual refuses on the basis of his privilege
20 against self-incrimination to comply with a civil investigative
21 demand issued pursuant to this act or to testify or produce
22 other information in a proceeding under this act, the
23 prosecuting authority may invoke the provisions of 42 Pa.C.S. §
24 5947 (relating to immunity of witnesses).
25 Section 710. Regulations.
26 (a) General rule.--The Attorney General shall have the power
27 and authority to promulgate rules and regulations which may be
28 necessary to carry out the purposes set forth in this act.
29 (b) Guidelines.--In order to facilitate the speedy
30 implementation of this act, the Attorney General shall have the
20010H1285B3012 - 37 -
1 power and authority to promulgate, adopt and use guidelines
2 which shall be published in the Pennsylvania Bulletin. The
3 guidelines shall not be subject to review pursuant to section
4 205 of the act of July 31, 1968 (P.L.769, No.240), referred to
5 as the Commonwealth Documents Law, sections 204(b) and 301(10)
6 of the act of October 15, 1980 (P.L.950, No.164), known as the
7 Commonwealth Attorneys Act, the act of June 25, 1982 (P.L.633,
8 No.181), known as the Regulatory Review Act, and shall be
9 effective for a period of not more than two years from the
10 effective date of this act. After the expiration of the two-year
11 period, the guidelines shall expire and be replaced by
12 regulations which shall be promulgated, adopted and published as
13 provided by law.
14 Section 711. Effective date.
15 This act shall take effect in 60 days.
16 CHAPTER 1 <--
17 PRELIMINARY PROVISIONS
18 SECTION 101. SHORT TITLE.
19 THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE FALSE CLAIMS
20 ACT.
21 SECTION 102. DEFINITIONS.
22 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS ACT SHALL
23 HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
24 CONTEXT CLEARLY INDICATES OTHERWISE:
25 "CLAIM." ANY REQUEST OR DEMAND FOR MONEY, PROPERTY OR
26 SERVICES MADE TO ANY EMPLOYEE, OFFICER OR AGENT OF THE
27 COMMONWEALTH OR OF ANY POLITICAL SUBDIVISION THEREOF OR TO ANY
28 CONTRACTOR, SUBCONTRACTOR, GRANTEE OR OTHER RECIPIENT OF THE
29 COMMONWEALTH OR ANY POLITICAL SUBDIVISION THEREOF, IF ANY
30 PORTION OF THE MONEY, PROPERTY OR SERVICES REQUESTED OR DEMANDED
20010H1285B3012 - 38 -
1 ISSUED FROM, WAS PROVIDED OR WILL BE REIMBURSED BY THE
2 COMMONWEALTH, REFERRED TO AS COMMONWEALTH FUNDS, OR BY ANY
3 POLITICAL SUBDIVISION THEREOF, REFERRED TO AS POLITICAL
4 SUBDIVISION FUNDS.
5 "FALSE." IN ADDITION TO ITS ORDINARY MEANING, THIS TERM ALSO
6 MEANS FRAUDULENT.
7 "INTEREST." FOUR PERCENTAGE POINTS GREATER THAN THE PRIME
8 LENDING RATE AT ITS HIGHEST POINT DURING THE PERIOD COMMENCING
9 WITH THE COMMISSION OF THE FIRST ACT DEFINED IN SECTION 301 AND
10 ENDING WITH ENTRY OF JUDGMENT FOR ALL SUCH VIOLATIONS. INTEREST
11 SHALL BE COMPOUNDED DAILY COMMENCING FROM THE COMMISSION OF THE
12 FIRST ACT DEFINED IN SECTION 301.
13 "KNOWING" OR "KNOWINGLY." A PERSON WHO, WITH RESPECT TO
14 INFORMATION, DOES ANY OF THE FOLLOWING:
15 (1) HAS ACTUAL KNOWLEDGE OF THE INFORMATION;
16 (2) ACTS IN DELIBERATE IGNORANCE OF THE TRUTH OR FALSITY
17 OF THE INFORMATION; OR
18 (3) ACTS IN RECKLESS DISREGARD OF THE TRUTH OR FALSITY
19 OF THE INFORMATION.
20 PROOF OF SPECIFIC INTENT TO DEFRAUD SHALL NOT BE REQUIRED.
21 "PERSON." ANY NATURAL PERSON, CORPORATION, POLITICAL
22 SUBDIVISION, FIRM, ASSOCIATION, ORGANIZATION, PARTNERSHIP,
23 BUSINESS, TRUST OR OTHER LEGAL ENTITY.
24 "POLITICAL SUBDIVISION." ANY CITY, COUNTY, TAX OR ASSESSMENT
25 DISTRICT, MUNICIPAL OR GOVERNMENT AUTHORITY OR OTHER LEGALLY
26 AUTHORIZED LOCAL GOVERNMENTAL ENTITY IN THIS COMMONWEALTH.
27 "PROCEEDS." THE TERM INCLUDES CIVIL PENALTIES AS WELL AS
28 DOUBLE OR TREBLE DAMAGES AS PROVIDED IN CHAPTER 3.
29 "PROSECUTING AUTHORITY." THE ATTORNEY GENERAL AND WHERE
30 APPROPRIATE THE DISTRICT ATTORNEY OF ANY COUNTY IN WHICH THE
20010H1285B3012 - 39 -
1 POLITICAL SUBDIVISION, INCLUDING THE COUNTY ITSELF, LIES.
2 SECTION 103. CONSTRUCTION.
3 THIS ACT SHALL BE LIBERALLY AND BROADLY CONSTRUED TO
4 EFFECTUATE ITS PURPOSES. IT SHALL BE APPLIED AND INTERPRETED TO
5 PROMOTE THE PUBLIC INTEREST TO ELIMINATE FRAUD, WASTE AND ABUSE
6 THROUGH THE SUBMISSION OF FALSE OR FRAUDULENT CLAIMS IN THIS
7 COMMONWEALTH OR IN ANY OF ITS POLITICAL SUBDIVISIONS.
8 CHAPTER 3
9 FALSE CLAIMS
10 SECTION 301. OFFENSES DEFINED.
11 (A) LIABILITY.--
12 (1) A PERSON SHALL BE LIABLE TO THE COMMONWEALTH OR TO
13 THE POLITICAL SUBDIVISION FOR EACH FALSE CLAIM IN THE AMOUNT
14 SPECIFIED IN PARAGRAPH (2) IF THAT PERSON COMMITS ANY OF THE
15 FOLLOWING ACTS:
16 (I) KNOWINGLY PRESENTS OR CAUSES TO BE PRESENTED TO
17 AN OFFICER OR EMPLOYEE OF THE COMMONWEALTH OR ANY
18 POLITICAL SUBDIVISION A FALSE CLAIM FOR PAYMENT OR
19 APPROVAL.
20 (II) KNOWINGLY MAKES, USES OR CAUSES TO BE MADE OR
21 USED A FALSE RECORD OR STATEMENT TO GET A FALSE CLAIM
22 PAID OR APPROVED BY THE COMMONWEALTH OR BY ANY POLITICAL
23 SUBDIVISION.
24 (III) HAS POSSESSION, CUSTODY OR CONTROL OF PUBLIC
25 PROPERTY OR MONEY USED OR TO BE USED BY THE COMMONWEALTH
26 OR BY ANY POLITICAL SUBDIVISION AND KNOWINGLY DELIVERS OR
27 CAUSES TO BE DELIVERED PROPERTY OF LESSER QUALITY,
28 QUANTITY OR VALUE THAN FOR WHICH THE PERSON RECEIVES A
29 CERTIFICATE OR RECEIPT.
30 (IV) IS AUTHORIZED TO MAKE OR DELIVER A DOCUMENT
20010H1285B3012 - 40 -
1 CERTIFYING RECEIPT OF PROPERTY USED OR TO BE USED BY THE
2 COMMONWEALTH OR BY ANY POLITICAL SUBDIVISION AND
3 KNOWINGLY MAKES OR DELIVERS A RECEIPT THAT FALSELY
4 REPRESENTS THE QUALITY, QUANTITY OR VALUE OF THE PROPERTY
5 USED OR TO BE USED.
6 (V) KNOWINGLY BUYS OR RECEIVES AS A PLEDGE OF AN
7 OBLIGATION OR DEBT PUBLIC PROPERTY FROM ANY PERSON WHO
8 LAWFULLY MAY NOT SELL OR PLEDGE THE PROPERTY.
9 (VI) KNOWINGLY MAKES, USES OR CAUSES TO BE MADE OR
10 USED A FALSE RECORD OR STATEMENT TO CONCEAL, AVOID OR
11 DECREASE AN OBLIGATION TO PAY OR TRANSMIT MONEY OR
12 PROPERTY TO THE COMMONWEALTH OR ANY POLITICAL
13 SUBDIVISION.
14 (VII) SUBMITS A FALSE CLAIM, IS A BENEFICIARY OF
15 PAYMENT BY THE COMMONWEALTH OR POLITICAL SUBDIVISION FOR
16 THAT CLAIM, SUBSEQUENTLY DISCOVERS OR RECKLESSLY FAILS TO
17 DISCOVER THAT THE CLAIM WAS FALSE AND FAILS TO DISCLOSE
18 THAT THE CLAIM WAS FALSE. DISCLOSURE SHALL BE MADE TO THE
19 COMMONWEALTH OR POLITICAL SUBDIVISION WITHIN A REASONABLE
20 TIME, BUT IN NO EVENT LONGER THAN 30 DAYS AFTER DISCOVERY
21 OF THE FALSE CLAIM.
22 (VIII) CONSPIRES TO COMMIT ANY OF THE ACTS SPECIFIED
23 IN SUBPARAGRAPHS (I) THROUGH (VII).
24 (2) THE LIABILITY IMPOSED UNDER PARAGRAPH (1) SHALL BE:
25 (I) THE GREATER OF:
26 (A) THREE TIMES THE AMOUNT OF DAMAGES WHICH THE
27 COMMONWEALTH OR POLITICAL SUBDIVISION SUSTAINS
28 BECAUSE OF THE ACT OF THAT PERSON; OR
29 (B) THREE TIMES THE AMOUNT OF THE INTEREST
30 ACCUMULATED ON SUCH DAMAGES.
20010H1285B3012 - 41 -
1 (II) THE COSTS OF AN ACTION BROUGHT TO RECOVER ANY
2 OF THOSE PENALTIES OR DAMAGES.
3 (III) A CIVIL PENALTY OF NOT LESS THAN $5,000 NOR
4 MORE THAN $10,000.
5 (B) REDUCED ASSESSMENT.--
6 (1) NOTWITHSTANDING SUBSECTION (A), THE COURT SHALL
7 ASSESS THE AMOUNT OF DAMAGES WHICH THE COMMONWEALTH OR THE
8 POLITICAL SUBDIVISION SUSTAINS BECAUSE OF THE ACT OF THE
9 PERSON DESCRIBED IN SUBSECTION (A) AND THE INTEREST
10 ACCUMULATED ON SUCH DAMAGES, AND NO CIVIL PENALTY, IF THE
11 COURT FINDS ALL OF THE FOLLOWING:
12 (I) THE VIOLATION WAS COMMITTED BY A CORPORATION,
13 FIRM, ASSOCIATION, ORGANIZATION, PARTNERSHIP, BUSINESS,
14 TRUST OR OTHER LEGAL ENTITY AND PROMULGATED BY AN
15 EMPLOYEE OR OTHER AGENT OF THE ENTITY WHO DID NOT ACT IN
16 A MANAGERIAL ROLE WITHIN THE ENTITY;
17 (II) THE PERSON COMMITTING THE VIOLATION FURNISHED
18 THE APPROPRIATE PROSECUTING AUTHORITY, THE COMMONWEALTH
19 OR POLITICAL SUBDIVISION WITH ALL INFORMATION KNOWN TO
20 THAT PERSON ABOUT THE VIOLATION WITHIN 120 DAYS AFTER THE
21 DATE ON WHICH THE PERSON FIRST OBTAINED THE INFORMATION;
22 (III) THE PERSON FULLY COOPERATED WITH ANY
23 INVESTIGATION BY THE PROSECUTING AUTHORITY OF THE
24 VIOLATION;
25 (IV) AT THE TIME THE PERSON FURNISHED THE
26 APPROPRIATE PROSECUTING AUTHORITY, THE COMMONWEALTH OR
27 POLITICAL SUBDIVISION WITH ALL INFORMATION ABOUT THE
28 VIOLATION, NO INVESTIGATION, CRIMINAL PROSECUTION, CIVIL
29 ACTION OR ADMINISTRATIVE ACTION HAD COMMENCED WITH
30 RESPECT TO THE VIOLATION; AND
20010H1285B3012 - 42 -
1 (V) THE PERSON HAD AN EFFECTIVE COMPLIANCE PROGRAM
2 THAT COULD REASONABLY BE EXPECTED TO PREVENT AND DETECT
3 VIOLATIONS OF LAW, EVEN IF THE PROGRAM DID NOT DETECT THE
4 INSTANT OFFENSE.
5 (2) NOTWITHSTANDING SUBSECTION (A), THE COURT SHALL
6 ASSESS THE AMOUNT OF DAMAGES WHICH THE COMMONWEALTH OR THE
7 POLITICAL SUBDIVISION SUSTAINS BECAUSE OF THE ACT OF THE
8 PERSON DESCRIBED IN SUBSECTION (A) AND TWO TIMES THE AMOUNT
9 OF THE INTEREST ACCUMULATED ON SUCH DAMAGES AND NO CIVIL
10 PENALTY, IF THE COURT FINDS ALL OF THE FOLLOWING:
11 (I) THE PERSON COMMITTING THE VIOLATION FURNISHED
12 THE PROSECUTING AUTHORITY WITH ALL INFORMATION KNOWN TO
13 THAT PERSON ABOUT THE VIOLATION WITHIN 120 DAYS AFTER THE
14 DATE ON WHICH THE PERSON FIRST OBTAINED THE INFORMATION;
15 (II) THE PERSON FULLY COOPERATED WITH ANY
16 INVESTIGATION BY THE PROSECUTING AUTHORITY OF THE
17 VIOLATION;
18 (III) AT THE TIME THE PERSON FURNISHED THE
19 APPROPRIATE PROSECUTING AUTHORITY WITH ALL INFORMATION
20 ABOUT THE VIOLATION, NO INVESTIGATION, CRIMINAL
21 PROSECUTION, CIVIL ACTION OR ADMINISTRATIVE ACTION HAD
22 COMMENCED WITH RESPECT TO THE VIOLATION; AND
23 (IV) THE PERSON HAD AN EFFECTIVE COMPLIANCE PROGRAM
24 THAT COULD REASONABLY BE EXPECTED TO PREVENT AND DETECT
25 VIOLATIONS OF LAW, EVEN IF THE PROGRAM DID NOT DETECT THE
26 INSTANT OFFENSE.
27 (3) NOTWITHSTANDING SUBSECTION (A), THE COURT SHALL
28 ASSESS A CIVIL PENALTY NOT TO EXCEED $5,000 FOR EACH FALSE
29 CLAIM AND THE GREATER OF:
30 (I) TWO TIMES THE AMOUNT OF DAMAGES WHICH THE
20010H1285B3012 - 43 -
1 COMMONWEALTH OR THE POLITICAL SUBDIVISION SUSTAINS
2 BECAUSE OF THE ACT OF THE PERSON DESCRIBED IN SUBSECTION
3 (A); OR
4 (II) THREE TIMES THE INTEREST ACCUMULATED ON SUCH
5 DAMAGES, IF THE COURT FINDS ALL OF THE FOLLOWING:
6 (A) THE PERSON COMMITTING THE VIOLATION
7 FURNISHED THE PROSECUTING AUTHORITY WITH ALL
8 INFORMATION KNOWN TO THAT PERSON ABOUT THE VIOLATION
9 WITHIN 120 DAYS AFTER THE DATE ON WHICH THE PERSON
10 FIRST OBTAINED THE INFORMATION.
11 (B) THE PERSON FULLY COOPERATED WITH ANY
12 INVESTIGATION BY THE PROSECUTION AUTHORITY OF THE
13 VIOLATION.
14 (C) AT THE TIME THE PERSON FURNISHED THE
15 APPROPRIATE PROSECUTING AUTHORITY WITH ALL
16 INFORMATION ABOUT THE VIOLATION, THE PERSON DID NOT
17 HAVE KNOWLEDGE OR NOTICE THAT AN INVESTIGATION,
18 CRIMINAL PROSECUTION, CIVIL ACTION OR ADMINISTRATIVE
19 ACTION HAD COMMENCED WITH REGARD TO THE VIOLATION.
20 (D) THE PERSON HAD AN EFFECTIVE COMPLIANCE
21 PROGRAM THAT COULD REASONABLY BE EXPECTED TO PREVENT
22 AND DETECT VIOLATIONS OF LAW, EVEN IF THE PROGRAM DID
23 NOT DETECT THE INSTANT VIOLATION.
24 (C) JOINT AND SEVERAL LIABILITY.--LIABILITY UNDER THIS
25 SECTION SHALL BE JOINT AND SEVERAL FOR ANY ACT COMMITTED BY TWO
26 OR MORE PERSONS.
27 (D) LIMITATION.--
28 (1) THIS SECTION DOES NOT APPLY TO ANY CONTROVERSY
29 INVOLVING AN AGGREGATE AMOUNT OF LESS THAN $2,500 IN VALUE OR
30 WHERE THE CLAIM WAS FILED BY THE INDIVIDUAL RECIPIENT OF
20010H1285B3012 - 44 -
1 BENEFITS OR COMPENSATION CONFERRED UNDER THE ACT OF JUNE 2,
2 1915 (P.L.736, NO.338), KNOWN AS THE WORKERS' COMPENSATION
3 ACT, OR THE ACT OF DECEMBER 5, 1936 (2ND SP.SESS., 1937
4 P.L.2897, NO.1), KNOWN AS THE UNEMPLOYMENT COMPENSATION LAW,
5 OR THE ACT OF JUNE 13, 1967 (P.L.31, NO.21), KNOWN AS THE
6 PUBLIC WELFARE CODE.
7 (2) AS USED IN THIS SUBSECTION, THE TERM "CONTROVERSY"
8 MEANS ANY ONE OR MORE FALSE CLAIMS SUBMITTED OR CAUSED TO BE
9 SUBMITTED BY EITHER A PERSON OR PERSONS WHO ACT PURSUANT TO A
10 COMMON PLAN, SCHEME OR DESIGN IN VIOLATION OF THIS ACT.
11 SECTION 302. FALSE CLAIMS JURISDICTION.
12 IF ANY DEFENDANT CAN BE FOUND, RESIDES OR TRANSACTS BUSINESS
13 IN THIS COMMONWEALTH OR IF AN ACT PROSCRIBED BY THIS ACT
14 OCCURRED WITHIN THIS COMMONWEALTH, AN ACTION UNDER THIS ACT
15 SHALL BE BROUGHT IN THE COMMONWEALTH COURT EXCLUSIVELY.
16 SECTION 303. PROCEDURE.
17 (A) COMMONWEALTH PROSECUTION.--
18 (1) THE ATTORNEY GENERAL SHALL DILIGENTLY INVESTIGATE
19 VIOLATIONS UNDER SECTION 301 INVOLVING COMMONWEALTH FUNDS. IF
20 THE ATTORNEY GENERAL FINDS THAT A PERSON HAS VIOLATED OR IS
21 VIOLATING SECTION 301, THE ATTORNEY GENERAL MAY BRING AN
22 ACTION UNDER THIS ACT AGAINST THAT PERSON.
23 (2) IF THE ATTORNEY GENERAL BRINGS AN ACTION UNDER THIS
24 ACT ON A CLAIM INVOLVING POLITICAL SUBDIVISION FUNDS AS WELL
25 AS COMMONWEALTH FUNDS, THE ATTORNEY GENERAL SHALL, ON THE
26 SAME DATE THAT THE COMPLAINT IS FILED IN THIS ACTION, SERVE
27 BY MAIL, RETURN RECEIPT REQUESTED, A COPY OF THE COMPLAINT ON
28 THE APPROPRIATE DISTRICT ATTORNEY.
29 (3) THE DISTRICT ATTORNEY SHALL HAVE THE RIGHT TO
30 INTERVENE IN AN ACTION BROUGHT BY THE ATTORNEY GENERAL UNDER
20010H1285B3012 - 45 -
1 THIS ACT WITHIN 90 DAYS AFTER RECEIPT OF THE COMPLAINT
2 PURSUANT TO PARAGRAPH (2).
3 (B) POLITICAL SUBDIVISION PROSECUTION.--
4 (1) THE DISTRICT ATTORNEY SHALL DILIGENTLY INVESTIGATE
5 VIOLATIONS UNDER SECTION 301 INVOLVING POLITICAL SUBDIVISION
6 FUNDS. IF THE DISTRICT ATTORNEY FINDS THAT A PERSON HAS
7 VIOLATED OR IS VIOLATING SECTION 301, HE MAY BRING AN ACTION
8 UNDER THIS ACT AGAINST THAT PERSON.
9 (2) THE DISTRICT ATTORNEY MAY REFER A MATTER INVOLVING
10 POLITICAL SUBDIVISION FUNDS TO THE ATTORNEY GENERAL AT ANY
11 TIME. THE ATTORNEY GENERAL MAY DECLINE OR ACCEPT THE
12 REFERRAL.
13 (3) IF THE DISTRICT ATTORNEY BRINGS AN ACTION ON A CLAIM
14 INVOLVING COMMONWEALTH FUNDS AS WELL AS POLITICAL SUBDIVISION
15 FUNDS, THE DISTRICT ATTORNEY SHALL, ON THE SAME DATE THAT THE
16 COMPLAINT IS FILED IN THIS ACTION, SERVE BY MAIL, RETURN
17 RECEIPT REQUESTED, A COPY OF THE COMPLAINT ON THE ATTORNEY
18 GENERAL.
19 (4) WITHIN 90 DAYS AFTER RECEIVING THE COMPLAINT
20 PURSUANT TO PARAGRAPH (2), THE ATTORNEY GENERAL SHALL DO ONE
21 OF THE FOLLOWING:
22 (I) NOTIFY THE COURT THAT THE ATTORNEY GENERAL
23 INTENDS TO PROCEED WITH THE ACTION, IN WHICH CASE THE
24 ATTORNEY GENERAL SHALL ASSUME PRIMARY RESPONSIBILITY FOR
25 CONDUCTING THE ACTION AND THE DISTRICT ATTORNEY SHALL
26 HAVE THE RIGHT TO CONTINUE AS A PARTY.
27 (II) NOTIFY THE COURT THAT THE ATTORNEY GENERAL
28 DECLINES TO PROSECUTE THE ACTION, IN WHICH CASE THE
29 DISTRICT ATTORNEY SHALL HAVE THE RIGHT TO CONDUCT THE
30 ACTION ON ITS OWN.
20010H1285B3012 - 46 -
1 (III) PROCEED JOINTLY WITH THE DISTRICT ATTORNEY,
2 ASSUMING COEQUAL RESPONSIBILITY FOR PROSECUTION OF THE
3 ACTION.
4 CHAPTER 5
5 QUI TAM ACTIONS
6 SECTION 501. GENERAL PROVISIONS.
7 (A) WHEN ACTION MAY BE BROUGHT AND DISMISSED.--
8 (1) A PERSON MAY BRING A QUI TAM ACTION FOR A VIOLATION
9 OF THIS ACT FOR THE PERSON AND EITHER FOR THE COMMONWEALTH IN
10 THE NAME OF THE COMMONWEALTH IF ANY COMMONWEALTH FUNDS ARE
11 INVOLVED OR FOR A POLITICAL SUBDIVISION IN THE NAME OF THE
12 POLITICAL SUBDIVISION IF POLITICAL SUBDIVISION FUNDS ARE
13 EXCLUSIVELY INVOLVED. A QUI TAM ACTION MAY BE BROUGHT
14 ALLEGING FRAUD INVOLVING BOTH COMMONWEALTH AND POLITICAL
15 SUBDIVISION FUNDS. THE PERSON BRINGING THE QUI TAM ACTION
16 SHALL BE REFERRED TO AS THE QUI TAM PLAINTIFF.
17 (2) THE PROSECUTING AUTHORITY MAY DISMISS THE QUI TAM
18 ACTION NOTWITHSTANDING THE OBJECTION OF THE QUI TAM PLAINTIFF
19 IF THE QUI TAM PLAINTIFF HAS BEEN NOTIFIED BY THE PROSECUTING
20 AUTHORITY OF THE FILING OF THE MOTION TO DISMISS AND THE
21 COURT HAS PROVIDED THE QUI TAM PLAINTIFF WITH AN OPPORTUNITY
22 FOR A HEARING ON THE MOTION.
23 (B) FILING AND SERVICE ON DEFENDANT.--
24 (1) A COMPLAINT FILED BY A QUI TAM PLAINTIFF UNDER THIS
25 ACT SHALL BE FILED EX PARTE UNDER SEAL WITH THE CLERK OF THE
26 COMMONWEALTH COURT OR EX PARTE UNDER SEAL IN THE APPROPRIATE
27 FEDERAL DISTRICT COURT IF FEDERAL FUNDS ARE ALSO INVOLVED,
28 AND THE COMPLAINT AND ALL RELATED PLEADINGS SHALL REMAIN
29 UNDER SEAL FOR 90 DAYS FROM THE DATE OF SERVICE. EXCEPT AS
30 PROVIDED IN PARAGRAPH (2), NO SERVICE SHALL BE MADE ON THE
20010H1285B3012 - 47 -
1 DEFENDANT UNTIL AFTER THE COMPLAINT IS UNSEALED BY ORDER OF
2 THE COURT.
3 (2) IF THE DEFENDANT CAN PROVE BY A PREPONDERANCE OF THE
4 EVIDENCE THAT A QUI TAM ACTION HAS BEEN BROUGHT AGAINST HIM,
5 THAT THE BRINGING OF THE QUI TAM ACTION HAS BEEN DISCLOSED TO
6 THE PUBLIC, AND THAT THE DEFENDANT NEITHER MADE THE
7 DISCLOSURE NOR CAUSED IT TO BE MADE, THE DEFENDANT MAY OBTAIN
8 FROM THE COURT A COPY OF THE COMPLAINT. THE DEFENDANT MAY NOT
9 DISCLOSE OR CAUSE TO BE DISCLOSED TO ANY OTHER PERSON THE
10 FACT THAT A QUI TAM ACTION HAS BEEN BROUGHT, THE COMPLAINT OR
11 ANY OF THE INFORMATION CONTAINED IN THE COMPLAINT.
12 (C) SERVICE ON COMMONWEALTH AND POLITICAL SUBDIVISIONS.--
13 (1) WITHIN THREE DAYS OF THE COMPLAINT BEING FILED
14 PURSUANT TO SUBSECTION (B), THE QUI TAM PLAINTIFF SHALL SERVE
15 BY MAIL, RETURN RECEIPT REQUESTED, THE ATTORNEY GENERAL AND
16 THE GENERAL COUNSEL WITH A COPY OF THE COMPLAINT AND A
17 WRITTEN DISCLOSURE OF SUBSTANTIALLY ALL MATERIAL EVIDENCE AND
18 INFORMATION THE QUI TAM PLAINTIFF POSSESSES AT THAT TIME.
19 (2) WHERE THE COMPLAINT INVOLVES BOTH COMMONWEALTH AND
20 POLITICAL SUBDIVISION FUNDS, OR EXCLUSIVELY POLITICAL
21 SUBDIVISION FUNDS, THE PROSECUTING AUTHORITY SHALL SERVE A
22 COPY OF THE COMPLAINT, RETURN RECEIPT REQUESTED, TO COUNSEL
23 FOR THE POLITICAL SUBDIVISION.
24 SECTION 502. COMMONWEALTH FUNDS.
25 WITHIN 90 DAYS AFTER RECEIVING A COMPLAINT ALLEGING
26 VIOLATIONS WHICH INVOLVE COMMONWEALTH FUNDS, BUT NOT POLITICAL
27 SUBDIVISION FUNDS, THE ATTORNEY GENERAL SHALL DO EITHER OF THE
28 FOLLOWING:
29 (1) NOTIFY THE COURT THAT IT INTENDS TO PROCEED WITH THE
30 ACTION AND PETITION THE COURT TO HAVE THE CASE UNSEALED. IF
20010H1285B3012 - 48 -
1 THE COURT GRANTS THE ATTORNEY GENERAL'S REQUEST, THE SEAL MAY
2 BE LIFTED. THE COURT MAY, UPON MOTION BY THE ATTORNEY
3 GENERAL, ORDER A PARTIAL UNSEALING WHERE APPROPRIATE.
4 (2) NOTIFY THE COURT THAT IT DECLINES TO PROSECUTE THE
5 ACTION, IN WHICH CASE THE COMPLAINT MAY BE UNSEALED BY THE
6 COURT WITHIN 20 DAYS AFTER WRITTEN NOTIFICATION IS MADE BY
7 THE ATTORNEY GENERAL TO THE QUI TAM PLAINTIFF AND COUNSEL
8 THAT THE ATTORNEY GENERAL DOES NOT WISH TO INTERVENE. UPON
9 SUCH NOTIFICATION, THE QUI TAM PLAINTIFF SHALL HAVE THE RIGHT
10 TO CONDUCT THE ACTION.
11 SECTION 503. POLITICAL SUBDIVISION FUNDS.
12 (A) PROCEDURE.--WITHIN 30 DAYS AFTER RECEIVING A COMPLAINT
13 ALLEGING VIOLATIONS WHICH EXCLUSIVELY INVOLVE POLITICAL
14 SUBDIVISION FUNDS, THE ATTORNEY GENERAL SHALL PROMPTLY FORWARD
15 THE COMPLAINT AND WRITTEN DISCLOSURE TO THE APPROPRIATE DISTRICT
16 ATTORNEY FOR REVIEW AND DISPOSITION AND SHALL NOTIFY IN WRITING
17 THE QUI TAM PLAINTIFF AND COUNSEL OF THE TRANSFER.
18 (B) DUTY OF DISTRICT ATTORNEY.--WITHIN 60 DAYS AFTER THE
19 ATTORNEY GENERAL FORWARDS THE COMPLAINT AND WRITTEN DISCLOSURE
20 UNDER SUBSECTION (A), THE DISTRICT ATTORNEY SHALL DO EITHER OF
21 THE FOLLOWING:
22 (1) NOTIFY THE COURT THAT IT INTENDS TO PROCEED WITH THE
23 ACTION AND PETITION THE COURT TO HAVE THE CASE UNSEALED. IF
24 THE COURT GRANTS THE DISTRICT ATTORNEY'S REQUEST, THE SEAL
25 SHALL BE LIFTED.
26 (2) NOTIFY THE COURT THAT IT DECLINES TO TAKE OVER THE
27 ACTION, IN WHICH CASE THE SEAL MAY BE LIFTED WITHIN 20 DAYS
28 AFTER SUCH NOTIFICATION HAS BEEN MADE AND THE QUI TAM
29 PLAINTIFF SHALL HAVE THE RIGHT TO CONDUCT THE ACTION.
30 SECTION 504. COMPLAINTS RELATING TO COMMONWEALTH AND POLITICAL
20010H1285B3012 - 49 -
1 SUBDIVISION FUNDS.
2 (A) COMPLAINTS.--WITHIN 30 DAYS AFTER RECEIVING A COMPLAINT
3 ALLEGING VIOLATIONS WHICH INVOLVE OR ALLEGE BOTH COMMONWEALTH
4 AND POLITICAL SUBDIVISION FUNDS, THE ATTORNEY GENERAL SHALL
5 FORWARD COPIES OF THE COMPLAINT AND WRITTEN DISCLOSURE TO THE
6 APPROPRIATE DISTRICT ATTORNEY AND SHALL COORDINATE ITS REVIEW
7 AND INVESTIGATION WITH THOSE OF THE DISTRICT ATTORNEY.
8 (B) PROCEDURE.--WITHIN 90 DAYS AFTER RECEIVING A COMPLAINT
9 ALLEGING VIOLATIONS WHICH INVOLVE OR ALLEGE BOTH COMMONWEALTH
10 AND POLITICAL SUBDIVISION FUNDS, THE ATTORNEY GENERAL SHALL DO
11 ONE OF THE FOLLOWING:
12 (1) NOTIFY THE COURT IN WRITING THAT THE ATTORNEY
13 GENERAL INTENDS TO PROCEED WITH THE ACTION, IN WHICH CASE THE
14 SEAL SHALL BE LIFTED AND SERVICE EFFECTED ON THE DEFENDANT.
15 (2) NOTIFY THE COURT IN WRITING THAT THE ATTORNEY
16 GENERAL DECLINES TO TAKE OVER THE ACTION BUT THAT THE
17 DISTRICT ATTORNEY INVOLVED INTENDS TO PROCEED WITH THE
18 ACTION, IN WHICH CASE THE SEAL SHALL BE LIFTED AND THE ACTION
19 SHALL BE CONDUCTED BY THE DISTRICT ATTORNEY.
20 (3) NOTIFY THE COURT THAT BOTH THE ATTORNEY GENERAL AND
21 THE DISTRICT ATTORNEY DECLINE TO TAKE OVER THE ACTION, IN
22 WHICH CASE THE SEAL MAY BE LIFTED WITHIN 20 DAYS AFTER
23 NOTIFICATION HAS BEEN MADE AND THE QUI TAM PLAINTIFF SHALL
24 HAVE THE RIGHT TO CONDUCT THE ACTION.
25 SECTION 505. INTERVENTION BY POLITICAL SUBDIVISION.
26 IF THE ATTORNEY GENERAL PROCEEDS WITH THE ACTION UNDER
27 SECTION 503, THE DISTRICT ATTORNEY SHALL BE PERMITTED TO
28 INTERVENE IN THE ACTION WITHIN 60 DAYS AFTER THE ATTORNEY
29 GENERAL NOTIFIES THE COURT OF HIS INTENTIONS.
30 SECTION 506. EXTENSION OF TIME.
20010H1285B3012 - 50 -
1 UPON A SHOWING OF GOOD CAUSE AND REASONABLE DILIGENCE IN HIS
2 INVESTIGATION, THE PROSECUTING AUTHORITY MAY MOVE THE COURT FOR
3 REASONABLE EXTENSIONS OF TIME DURING WHICH THE COMPLAINT WILL
4 REMAIN UNDER SEAL. THE QUI TAM PLAINTIFF SHALL BE NOTIFIED OF
5 ANY EXTENSIONS REQUESTED UNDER THIS SECTION. ANY SUCH MOTIONS
6 MAY BE SUPPORTED BY AFFIDAVITS OR OTHER SUBMISSIONS IN CAMERA.
7 SECTION 507. OTHER ACTIONS PROHIBITED.
8 WHEN A QUI TAM PLAINTIFF BRINGS AN ACTION UNDER THIS ACT, NO
9 OTHER PERSON SHALL BE PERMITTED TO BRING A RELATED ACTION UNDER
10 THIS ACT BASED ON THE SAME OR SIMILAR FACTS UNDERLYING THE
11 PENDING ACTION.
12 SECTION 508. EXCLUSIONS.
13 (A) GENERAL RULE.--NO COURT SHALL HAVE JURISDICTION OVER AN
14 ACTION BROUGHT UNDER THIS CHAPTER:
15 (1) AGAINST THE COMMONWEALTH, A POLITICAL SUBDIVISION OR
16 A PROSECUTING AUTHORITY.
17 (2) AGAINST AN OFFICIAL OR EMPLOYEE OF THE COMMONWEALTH
18 OR A POLITICAL SUBDIVISION IF THE OFFICIAL OR EMPLOYEE DID
19 NOT ACT WITH ACTUAL KNOWLEDGE.
20 (3) WHICH RELIES UPON THE PUBLIC DISCLOSURE OF SPECIFIC
21 ALLEGATIONS OR TRANSACTIONS IN A CRIMINAL, CIVIL OR
22 ADMINISTRATIVE HEARING, IN A GOVERNMENTAL REPORT, HEARING,
23 AUDIT OR INVESTIGATION OR FROM THE NEWS MEDIA, UNLESS THE
24 ACTION IS BROUGHT BY OR INTERVENED IN BY A PROSECUTING
25 AUTHORITY OR THE QUI TAM PLAINTIFF IS AN ORIGINAL SOURCE OF
26 THE INFORMATION.
27 (4) BY A PRISONER.
28 (5) BY A FORMER PRISONER AGAINST ANY OFFICIAL OR
29 EMPLOYEE OF THE COMMONWEALTH OR A POLITICAL SUBDIVISION FOR
30 ACTS RELATING TO THE OPERATIONS AND EXPENDITURES OF A
20010H1285B3012 - 51 -
1 CORRECTIONAL AGENCY OR FACILITY.
2 (6) BASED UPON ALLEGATIONS OR TRANSACTIONS WHICH ARE THE
3 SUBJECT OF AN INVESTIGATION, SETTLEMENT DISCUSSION, A
4 SETTLEMENT AGREEMENT, OR ANY CIVIL OR ADMINISTRATIVE
5 PROCEEDING, IN WHICH THE COMMONWEALTH OR POLITICAL
6 SUBDIVISION IS ALREADY A PARTY.
7 (B) DEFINITION.--AS USED IN THIS SECTION, THE TERM "ORIGINAL
8 SOURCE" MEANS AN INDIVIDUAL WHO HAS VOLUNTARILY PROVIDED THE
9 INFORMATION TO THE PROSECUTING AUTHORITY BEFORE FILING AN ACTION
10 BASED ON THAT INFORMATION AND EITHER HAS DIRECT AND INDEPENDENT
11 KNOWLEDGE OF THE INFORMATION ON WHICH THE ALLEGATIONS ARE BASED
12 OR DIRECTLY OR INDIRECTLY PROVIDED THE IMPETUS, BASIS OR
13 CATALYST FOR THE INVESTIGATION, HEARING, AUDIT OR REPORT WHICH
14 LED TO THE PUBLIC DISCLOSURE.
15 SECTION 509. EMPLOYMENT-RELATED DISCOVERY OF INFORMATION.
16 NO COURT SHALL HAVE JURISDICTION OVER AN ACTION BROUGHT UNDER
17 THIS ACT BY A PRESENT OR FORMER EMPLOYEE OF THE COMMONWEALTH, OF
18 A POLITICAL SUBDIVISION OR OF THE PERSON IF THAT EMPLOYEE'S
19 EXCLUSIVE RESPONSIBILITY IS THE INVESTIGATION OR PROSECUTION OF
20 FRAUD, UNLESS SUCH EMPLOYEE FIRST MAKES A GOOD FAITH ATTEMPT TO
21 USE EXISTING INTERNAL PROCEDURES FOR REPORTING, AUDITING AND
22 SEEKING RECOVERY OF THE FALSELY CLAIMED FUNDS BEFORE FILING AN
23 ACTION. THE COMMONWEALTH, POLITICAL SUBDIVISION OR THE PERSON
24 SHALL HAVE PROMULGATED INTERNAL PROCEDURES FOR REPORTING,
25 AUDITING AND SEEKING RECOVERY OF FALSELY CLAIMED FUNDS AND MUST
26 ACT ON THE INFORMATION REPORTED BY THE EMPLOYEE WITHIN 60 DAYS
27 OF RECEIPT OF THE INFORMATION.
28 SECTION 510. RESPONSIBILITY FOR PROSECUTION.
29 IF THE PROSECUTING AUTHORITY PROCEEDS WITH THE ACTION, IT
30 SHALL HAVE THE PRIMARY RESPONSIBILITY FOR PROSECUTING THE
20010H1285B3012 - 52 -
1 ACTION. THE QUI TAM PLAINTIFF SHALL HAVE THE RIGHT TO CONTINUE
2 WITH ALL RIGHTS AND OBLIGATIONS AS A FULL PARTY TO THE ACTION.
3 SECTION 511. DISMISSAL OF ACTION.
4 THE COMMONWEALTH OR POLITICAL SUBDIVISION MAY SEEK TO DISMISS
5 THE ACTION AT ANY TIME NOTWITHSTANDING THE OBJECTIONS OF THE QUI
6 TAM PLAINTIFF IF THE QUI TAM PLAINTIFF HAS BEEN NOTIFIED BY THE
7 PROSECUTING AUTHORITY OF THE FILING OF THE MOTION AND THE COURT
8 HAS PROVIDED THE QUI TAM PLAINTIFF WITH AN OPPORTUNITY FOR A
9 HEARING ON THE MOTION.
10 SECTION 512. SETTLEMENT.
11 (A) GENERAL RULE.--THE PROSECUTING AUTHORITY MAY SETTLE THE
12 ACTION WITH THE DEFENDANT NOTWITHSTANDING THE OBJECTIONS OF THE
13 QUI TAM PLAINTIFF IF THE COURT DETERMINES, AFTER A HEARING, THAT
14 THE PROPOSED SETTLEMENT IS FAIR, ADEQUATE AND REASONABLE UNDER
15 ALL THE CIRCUMSTANCES. UPON A SHOWING OF GOOD CAUSE, SUCH
16 HEARING MAY BE HELD IN CAMERA.
17 (B) CONSULTATION WITH POLITICAL SUBDIVISION.--THE DISTRICT
18 ATTORNEY SHALL CONSULT WITH THE POLITICAL SUBDIVISION REGARDING
19 ANY PROPOSED SETTLEMENT.
20 SECTION 513. ELECTION NOT TO PROCEED.
21 IF THE PROSECUTING AUTHORITY ELECTS NOT TO PROCEED, THE QUI
22 TAM PLAINTIFF SHALL HAVE THE RIGHT TO CONDUCT THE ACTION AND
23 SHALL APPRISE THE PROSECUTING AUTHORITY OF ALL DEVELOPMENTS
24 DURING THE COURSE OF THE ACTION. IF THE PROSECUTING AUTHORITY SO
25 REQUESTS, IT SHALL BE SERVED WITH COPIES OF ALL PLEADINGS FILED
26 IN THE ACTION AND SUPPLIED WITH COPIES OF ALL DEPOSITION
27 TRANSCRIPTS.
28 SECTION 514. INTERVENTION.
29 UPON APPLICATION, THE COURT SHALL PERMIT THE PROSECUTING
30 AUTHORITY TO INTERVENE IN AN ACTION WITH WHICH IT HAD INITIALLY
20010H1285B3012 - 53 -
1 DECLINED TO PROCEED.
2 SECTION 515. PROCEEDS.
3 (A) ATTORNEY GENERAL.--IF THE ATTORNEY GENERAL INITIATES AN
4 ACTION UNDER SECTION 303(A) OR ASSUMES CONTROL OF AN ACTION
5 INITIATED BY THE DISTRICT ATTORNEY PURSUANT TO SECTION
6 303(B)(4)(I), THE ATTORNEY GENERAL SHALL RECEIVE A FIXED 33% OF
7 THE PROCEEDS OF THE ACTION OR SETTLEMENT OF THE CLAIM, WHICH
8 FUNDS SHALL BE USED TO SUPPORT AND EXPAND ITS ONGOING
9 INVESTIGATION AND PROSECUTION OF FALSE CLAIMS VIOLATIONS.
10 (B) DISTRICT ATTORNEY.--IF A DISTRICT ATTORNEY INITIATES AND
11 CONDUCTS AN ACTION PURSUANT TO SECTION 303(B), THE OFFICE OF THE
12 DISTRICT ATTORNEY SHALL RECEIVE A FIXED 33% OF THE PROCEEDS OF
13 THE ACTION OR SETTLEMENT OF THE CLAIM, WHICH FUNDS SHALL BE USED
14 TO SUPPORT AND EXPAND ITS ONGOING INVESTIGATION AND PROSECUTION
15 OF FALSE CLAIMS VIOLATIONS.
16 (C) AWARD OF PORTION OF RECOVERY.--IF A DISTRICT ATTORNEY
17 INTERVENES IN AN ACTION INITIATED BY THE ATTORNEY GENERAL
18 PURSUANT TO SECTION 303(A)(3) OR REMAINS A PARTY TO AN ACTION
19 ASSUMED BY THE ATTORNEY GENERAL PURSUANT TO SECTION 303(B)(4)(I)
20 AND (III), THE COURT MAY AWARD THE OFFICE OF THE DISTRICT
21 ATTORNEY A PORTION OF THE ATTORNEY GENERAL'S FIXED 33% OF THE
22 RECOVERY UNDER SUBSECTION (A), TAKING INTO ACCOUNT THE DISTRICT
23 ATTORNEY'S ROLE IN INVESTIGATING AND CONDUCTING THE ACTION AND
24 THE RESOURCES OF THE OFFICE EXPENDED ON THE PROSECUTION.
25 (D) QUI TAM RECOVERY.--
26 (1) IF THE PROSECUTING AUTHORITY PROCEEDS WITH AN ACTION
27 BROUGHT BY A QUI TAM PLAINTIFF UNDER THIS ACT, THE QUI TAM
28 PLAINTIFF SHALL, SUBJECT TO SUBSECTIONS (H) AND (I), RECEIVE
29 NOT LESS THAN 20% NOR MORE THAN 33% OF THE FULL PROCEEDS OF
30 THE ACTION OR SETTLEMENT OF THE CLAIM, DEPENDING UPON THE
20010H1285B3012 - 54 -
1 EXTENT TO WHICH THE QUI TAM PLAINTIFF SUBSTANTIALLY
2 CONTRIBUTED TO THE OVERALL PROSECUTION OF THE ACTION. IF THE
3 PROSECUTING AUTHORITY AND THE QUI TAM PLAINTIFF CANNOT REACH
4 AN AGREEMENT CONCERNING THE PERCENTAGE OF PROCEEDS TO BE
5 DISTRIBUTED TO THE QUI TAM PLAINTIFF, THE DETERMINATION SHALL
6 BE MADE BY THE COURT.
7 (2) WHEN IT CONDUCTS THE ACTION, THE ATTORNEY GENERAL OR
8 THE DISTRICT ATTORNEY SHALL RECEIVE A FIXED 33% OF THE
9 PROCEEDS OF THE ACTION OR SETTLEMENT OF THE CLAIM, WHICH
10 FUNDS SHALL BE USED TO SUPPORT AND EXPAND ITS ONGOING
11 INVESTIGATION AND PROSECUTION OF FALSE CLAIMS.
12 (3) WHEN BOTH THE ATTORNEY GENERAL AND THE DISTRICT
13 ATTORNEY ARE INVOLVED AS COPARTIES IN A QUI TAM ACTION
14 PURSUANT TO SECTION 504, THE COURT IN ITS DISCRETION MAY
15 AWARD THE DISTRICT ATTORNEY A PORTION OF THE ATTORNEY
16 GENERAL'S FIXED 33% OF THE RECOVERY, TAKING INTO ACCOUNT THE
17 DISTRICT ATTORNEY'S COOPERATION AND CONTRIBUTION TO
18 INVESTIGATING AND CONDUCTING THE ACTION.
19 (E) DECLINE TO PROCEED.--IF THE PROSECUTING AUTHORITY
20 DECLINES TO PROCEED WITH AN ACTION, THE QUI TAM PLAINTIFF SHALL,
21 SUBJECT TO SUBSECTIONS (H) AND (I), RECEIVE AN AMOUNT WHICH THE
22 COURT DECIDES IS REASONABLE FOR COLLECTING THE CIVIL PENALTY AND
23 DAMAGES ON BEHALF OF THE COMMONWEALTH OR POLITICAL SUBDIVISION.
24 THE AMOUNT AWARDED BY THE COURT SHALL BE NOT LESS THAN 30% NOR
25 MORE THAN 50% OF THE FULL PROCEEDS OF THE ACTION OR SETTLEMENT
26 AND SHALL BE PAID OUT OF THE PROCEEDS.
27 (F) ATTORNEY FEES AND EXPENSES.--IF THE PROSECUTING
28 AUTHORITY DOES NOT PROCEED WITH THE ACTION AND THE PERSON
29 BRINGING THE ACTION CONDUCTS THE ACTION, THE COURT MAY AWARD TO
30 THE DEFENDANT ITS REASONABLE ATTORNEY FEES AND EXPENSES IF THE
20010H1285B3012 - 55 -
1 DEFENDANT PREVAILS IN THE ACTION AND THE COURT FINDS THAT THE
2 CLAIM OF THE PERSON BRINGING THE ACTION WAS CLEARLY FRIVOLOUS,
3 CLEARLY VEXATIOUS OR BROUGHT PRIMARILY FOR PURPOSES OF
4 HARASSMENT.
5 (G) ALLOCATION OF PROCEEDS FOR COSTS OF ANNUAL AUDIT.--THE
6 CONTROLLER, BOARD OF AUDITORS OR OTHER GOVERNMENT AUDITOR
7 PERFORMING THE ANNUAL AUDIT OF RECOVERIES AS PROVIDED UNDER
8 SUBSECTION (L) SHALL RECEIVE A FIXED 1% OF THE PROCEEDS OF THE
9 ACTION OR SETTLEMENT OF THE CLAIM, WHICH FUNDS SHALL BE USED TO
10 DEFRAY THE COSTS OF THE ANNUAL AUDIT.
11 (H) PRESENT OR FORMER EMPLOYEE.--IF A QUI TAM ACTION IS
12 BROUGHT BY A PRESENT OR FORMER EMPLOYEE OF THE COMMONWEALTH OR
13 POLITICAL SUBDIVISION, THE QUI TAM PLAINTIFF SHALL NOT BE
14 ENTITLED TO ANY MINIMUM GUARANTEED RECOVERY FROM THE PROCEEDS.
15 IF THE PROSECUTING AUTHORITY AND THE QUI TAM PLAINTIFF CANNOT
16 REACH AN AGREEMENT CONCERNING THE PERCENTAGE OF PROCEEDS TO BE
17 DISTRIBUTED TO THE QUI TAM PLAINTIFF, THE DETERMINATION SHALL BE
18 MADE BY THE COURT. THE COURT MAY AWARD THE QUI TAM PLAINTIFF
19 THOSE SUMS FROM THE PROCEEDS AS IT CONSIDERS APPROPRIATE, BUT IN
20 NO CASE MORE THAN 33% OF THE PROCEEDS IF THE PROSECUTING
21 AUTHORITY GOES FORTH WITH THE ACTION OR 50% IF IT DECLINES TO GO
22 FORTH, TAKING INTO ACCOUNT THE SIGNIFICANCE OF THE INFORMATION,
23 THE ROLE OF THE QUI TAM PLAINTIFF IN ADVANCING THE CASE TO
24 LITIGATION AND THE SCOPE OF AND RESPONSE TO THE QUI TAM
25 PLAINTIFF'S ATTEMPTS TO REPORT AND GAIN RECOVERY OF THE FALSELY
26 CLAIMED FUNDS THROUGH OFFICIAL CHANNELS.
27 (I) FRAUDULENT ACTIVITY.--
28 (1) WHERE THE ACTION IS ONE WHICH THE COURT FINDS TO BE
29 BASED PRIMARILY ON INFORMATION FROM A QUI TAM PLAINTIFF WHO
30 PARTICIPATED IN THE FRAUDULENT ACTIVITY, THE QUI TAM
20010H1285B3012 - 56 -
1 PLAINTIFF SHALL NOT BE ENTITLED TO ANY MINIMUM GUARANTEED
2 RECOVERY FROM THE PROCEEDS. IF THE PROSECUTING AUTHORITY AND
3 THE QUI TAM PLAINTIFF CANNOT REACH AN AGREEMENT CONCERNING
4 THE PERCENTAGE OF PROCEEDS TO BE DISTRIBUTED TO THE QUI TAM
5 PLAINTIFF, THE DETERMINATION SHALL BE MADE BY THE COURT. THE
6 COURT, IN ITS SOLE DISCRETION AFTER A FULL REVIEW OF ALL THE
7 FACTS AND CIRCUMSTANCES, MAY AWARD THE QUI TAM PLAINTIFF SUCH
8 SUMS FROM THE PROCEEDS AS IT CONSIDERS APPROPRIATE UNDER THE
9 CIRCUMSTANCES, BUT IN NO CASE MORE THAN 33% OF THE PROCEEDS
10 IF THE PROSECUTING AUTHORITY GOES FORTH WITH THE ACTION OR
11 50% IF IT DECLINES TO GO FORTH, TAKING INTO ACCOUNT THE
12 SIGNIFICANCE OF THE INFORMATION, THE ROLE OF THE QUI TAM
13 PLAINTIFF IN ADVANCING THE CASE TO LITIGATION, THE SCOPE OF
14 THE QUI TAM PLAINTIFF'S INVOLVEMENT IN THE FRAUDULENT
15 ACTIVITY, THE QUI TAM PLAINTIFF'S ATTEMPTS TO AVOID OR RESIST
16 SUCH ACTIVITY AND ALL OTHER CIRCUMSTANCES SURROUNDING THE
17 ACTIVITY.
18 (2) A PERSON WHO HAS BEEN CONVICTED OF A CRIME, EITHER
19 IN THE SAME OR ANOTHER JURISDICTION, BASED ON PARTICIPATION
20 IN THE FRAUDULENT ACTIVITY AT ISSUE IN THE ACTION UNDER THIS
21 ACT OR WHOM THE DEFENDANT HAS SHOWN BY A PREPONDERANCE OF THE
22 EVIDENCE TO HAVE LED, DIRECTED OR RECEIVED SUBSTANTIAL
23 PROCEEDS FROM THE FRAUDULENT ACTIVITY, EVEN IF THAT PERSON
24 HAS NOT BEEN CONVICTED OF A CRIME, SHALL UNDER NO
25 CIRCUMSTANCES BE PERMITTED TO PARTICIPATE IN ANY ACTION UNDER
26 THIS ACT AS A QUI TAM PLAINTIFF.
27 (J) USE OF RECOVERIES.--
28 (1) PROCEEDS RECOVERED UNDER THIS ACT BY THE PROSECUTING
29 AUTHORITY OR AWARDED TO THE GOVERNMENT AUDITOR PURSUANT TO
30 SUBSECTION (G) SHALL BE PLACED IN THE GENERAL FUND OF THE
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1 COMMONWEALTH, THE OPERATING FUND OF THE COUNTY OF THE
2 DISTRICT ATTORNEY OR THE OPERATING FUND OF THE COUNTY OF THE
3 GOVERNMENT AUDITOR, AS APPROPRIATE.
4 (2) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE
5 CONTRARY, THE COMMONWEALTH, COUNTY OF THE DISTRICT ATTORNEY
6 OR THE COUNTY OF THE GOVERNMENT AUDITOR, AS APPROPRIATE,
7 SHALL IMMEDIATELY MAKE SUCH FUNDS AVAILABLE FOR EXPENDITURE,
8 WITHOUT RESTRICTION, BY THE PROSECUTING AUTHORITY OR
9 GOVERNMENT AUDITOR FOR THE PURPOSES SPECIFIED ELSEWHERE IN
10 THIS ACT. THE ENTITY HAVING BUDGETARY CONTROL OVER SUCH FUNDS
11 MAY NOT ANTICIPATE FUTURE RECOVERIES IN THE ADOPTION OR
12 APPROVAL OF THE BUDGET FOR THE PROSECUTING AUTHORITY.
13 (K) ANNUAL AUDIT OF RECOVERIES.--IT SHALL BE THE
14 RESPONSIBILITY OF THE COMMONWEALTH, THE COUNTY OF THE DISTRICT
15 ATTORNEY, OR BOTH, AS APPROPRIATE, TO PROVIDE, THROUGH THE
16 CONTROLLER, BOARD OF AUDITORS OR OTHER APPROPRIATE AUDITOR, AN
17 ANNUAL AUDIT OF ALL RECOVERIES UNDER THIS ACT. THE AUDIT SHALL
18 BE MADE PUBLIC, SUBJECT TO THE RIGHT OF THE PROSECUTING
19 AUTHORITY TO REDACT PORTIONS OF THE AUDIT WHICH IT REASONABLY
20 BELIEVES WILL COMPROMISE INVESTIGATIONS OR CRIMINAL PROCEEDINGS,
21 AND SHALL BE SUBMITTED TO THE ATTORNEY GENERAL'S OFFICE BY
22 SEPTEMBER 30 OF EACH YEAR.
23 (L) ANNUAL REPORT.--THE ATTORNEY GENERAL SHALL ANNUALLY
24 SUBMIT A REPORT TO THE APPROPRIATIONS COMMITTEE AND THE
25 JUDICIARY COMMITTEE OF THE SENATE AND THE APPROPRIATIONS
26 COMMITTEE AND JUDICIARY COMMITTEE OF THE HOUSE OF
27 REPRESENTATIVES, SPECIFYING THE RECOVERIES OBTAINED UNDER THIS
28 ACT. THE REPORT SHALL GIVE AN ACCOUNTING OF ALL MONEYS RECOVERED
29 THROUGH THE SALE OF ANY PROPERTY SEIZED IN SATISFACTION OF ANY
30 JUDGMENT ARISING FROM AN ACTION UNDER THIS ACT.
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1 (M) RECOVERIES AND APPROPRIATIONS.--RECOVERIES OR FUTURE
2 RECOVERIES UNDER THIS ACT SHALL BE IN ADDITION TO ANY
3 APPROPRIATION MADE TO THE OFFICE OF THE PROSECUTING AUTHORITY.
4 SECTION 516. REVERSION TO GENERAL FUND.
5 (A) GENERAL RULE.--THE PORTION OF THE PROCEEDS NOT
6 DISTRIBUTED UNDER SECTION 515 SHALL REVERT TO THE GENERAL FUND
7 WHEN THE UNDERLYING FALSE CLAIMS INVOLVED COMMONWEALTH FUNDS
8 EXCLUSIVELY AND TO THE POLITICAL SUBDIVISION WHEN THE UNDERLYING
9 FALSE CLAIMS INVOLVED POLITICAL SUBDIVISION FUNDS EXCLUSIVELY.
10 WHEN PETITIONED TO DO SO, THE COURT SHALL MAKE AN APPORTIONMENT
11 OF THE RECOVERED PROCEEDS BETWEEN THE COMMONWEALTH AND POLITICAL
12 SUBDIVISION BASED ON THEIR RELATIVE SHARE OF THE FUNDS FALSELY
13 CLAIMED.
14 (B) REIMBURSEMENT.--WHEN AN INSURER, GUARANTOR OR SURETY HAS
15 SUFFERED A LOSS ON AN UNDERLYING FALSE CLAIM THROUGH EITHER:
16 (1) REIMBURSING THE COMMONWEALTH OR POLITICAL
17 SUBDIVISION; OR
18 (2) DIRECTLY PAYING A CLAIMANT;
19 THE INSURER, GUARANTOR OR SURETY SHALL BE REIMBURSED FOR ITS
20 LOSSES TO THE EXTENT THAT PROCEEDS REVERTING TO THE GENERAL FUND
21 OR TO THE POLITICAL SUBDIVISION UNDER THIS SECTION EXCEED ANY
22 UNINSURED LOSS TO THE COMMONWEALTH OR THE POLITICAL SUBDIVISION.
23 SECTION 517. EXPENSES.
24 IF THE COMMONWEALTH, POLITICAL SUBDIVISION OR QUI TAM
25 PLAINTIFF PREVAILS IN OR SETTLES ANY ACTION UNDER THIS ACT, THE
26 QUI TAM PLAINTIFF SHALL RECEIVE AN AMOUNT FOR ALL REASONABLE
27 EXPENSES INCURRED IN THE PROSECUTION OF THE CLAIM, INCLUDING
28 EXPERT WITNESS FEES PLUS REASONABLE LITIGATION COSTS AND
29 ATTORNEY FEES; ALL EXPENSES, COSTS AND ATTORNEY FEES SHALL BE
30 AWARDED AGAINST THE DEFENDANT, AND UNDER NO CIRCUMSTANCES SHALL
20010H1285B3012 - 59 -
1 THEY BE THE RESPONSIBILITY OF THE PROSECUTING AUTHORITY.
2 CHAPTER 7
3 MISCELLANEOUS PROVISIONS
4 SECTION 701. RULES OF CIVIL PROCEDURE.
5 EXCEPT WHERE THIS ACT PROVIDES OTHERWISE, ACTIONS UNDER THIS
6 ACT SHALL BE GOVERNED BY THE PENNSYLVANIA RULES OF CIVIL
7 PROCEDURE.
8 SECTION 702. STAY OF DISCOVERY.
9 (A) GENERAL RULE.--THE COURT MAY STAY DISCOVERY FOR A PERIOD
10 OF NOT MORE THAN 90 DAYS IF THE PROSECUTING AUTHORITY OR THE
11 GENERAL COUNSEL SHOWS THAT DISCOVERY WOULD INTERFERE WITH AN
12 INVESTIGATION OR A PROSECUTION OF A CRIMINAL OR CIVIL MATTER
13 ARISING OUT OF THE SAME OR SIMILAR FACTS, REGARDLESS OF WHETHER
14 THE PROSECUTING AUTHORITY PROCEEDS WITH THE ACTION. SUCH A
15 SHOWING SHALL BE CONDUCTED IN CAMERA. THE COURT MAY EXTEND THE
16 90-DAY PERIOD UPON A FURTHER SHOWING IN CAMERA THAT THE
17 PROSECUTING AUTHORITY OR THE GENERAL COUNSEL HAS PURSUED THE
18 CRIMINAL OR CIVIL INVESTIGATION OR PROCEEDINGS WITH REASONABLE
19 DILIGENCE AND THAT ANY PROPOSED DISCOVERY IN THE ACTION UNDER
20 THIS ACT WOULD INTERFERE WITH THE ONGOING CRIMINAL OR CIVIL
21 INVESTIGATION OR PROCEEDINGS.
22 (B) CRIMINAL ACTION.--WHEN A CRIMINAL ACTION HAS COMMENCED
23 BASED UPON THE SAME OR SIMILAR FACTS UNDERLYING THE PENDING
24 ACTION UNDER THIS ACT, DISCOVERY BY THE DEFENDANT IN THE PENDING
25 ACTION UNDER THIS ACT SHALL BE CONFINED TO THAT AVAILABLE TO A
26 CRIMINAL DEFENDANT UNDER THE RULES OF CRIMINAL PROCEDURE AND THE
27 UNITED STATES AND THE CONSTITUTION OF THE COMMONWEALTH OF
28 PENNSYLVANIA. THE DEFENDANT IN THE PENDING ACTION UNDER THIS ACT
29 MAY PETITION THE COURT FOR A STAY OF PROCEEDINGS PENDING THE
30 CONCLUSION OF THE CRIMINAL ACTION.
20010H1285B3012 - 60 -
1 SECTION 703. CONTROL OVER PROSECUTION.
2 WHEN THE PROSECUTING AUTHORITY HAS INTERVENED IN AN ACTION
3 BROUGHT UNDER SECTION 501, THE PROSECUTING AUTHORITY SHALL HAVE
4 FULL AUTHORITY AS TO THE MANNER IN WHICH THE PROSECUTION IS
5 CONDUCTED.
6 SECTION 704. EMPLOYEE PROTECTION.
7 (A) DISCLOSING INFORMATION.--NO EMPLOYER SHALL SOLICIT,
8 ATTEMPT OR CONSPIRE TO PREVENT, MAKE, ADOPT OR ENFORCE ANY RULE,
9 REGULATION OR POLICY PREVENTING AN EMPLOYEE FROM DISCLOSING
10 INFORMATION TO A FEDERAL, STATE OR LOCAL LAW ENFORCEMENT AGENCY
11 OR FROM ACTING IN FURTHERANCE OF THE INVESTIGATION OF,
12 INITIATION OF, TESTIMONY IN OR ASSISTANCE IN FILING AN ACTION
13 UNDER THIS ACT.
14 (B) DISCRIMINATION.--NO EMPLOYER SHALL DISCHARGE, DEMOTE,
15 SUSPEND, THREATEN, HARASS, DENY PROMOTION TO OR IN ANY OTHER
16 MANNER DISCRIMINATE, OR SOLICIT, ATTEMPT OR CONSPIRE TO
17 DISCRIMINATE AGAINST AN EMPLOYEE IN THE TERMS OF AND CONDITIONS
18 OF EMPLOYMENT BECAUSE OF LAWFUL ACTS DONE BY THE EMPLOYEE ON
19 BEHALF OF THE EMPLOYEE OR OTHERS IN DISCLOSING INFORMATION TO A
20 FEDERAL, STATE OR LOCAL GOVERNMENT OR LAW ENFORCEMENT AGENCY OR
21 IN FURTHERING FALSE CLAIMS ACTION, INCLUDING INVESTIGATION FOR,
22 INITIATION OF, TESTIMONY FOR OR ASSISTANCE IN AN ACTION FILED OR
23 TO BE FILED UNDER THIS ACT.
24 (C) GOOD FAITH REPORTING TO EMPLOYER.--NO EMPLOYER MAY
25 DISCHARGE, THREATEN OR OTHERWISE DISCRIMINATE OR RETALIATE
26 AGAINST AN EMPLOYEE REGARDING THE EMPLOYEE'S COMPENSATION,
27 TERMS, CONDITIONS, LOCATION OR PRIVILEGES OF EMPLOYMENT BECAUSE
28 THE EMPLOYEE MADE OR IS ABOUT TO MAKE A GOOD FAITH REPORT TO THE
29 EMPLOYER REGARDING A FALSE CLAIM UNDER THIS ACT, REGARDLESS OF
30 WHETHER THE REPORT IS MADE OR TO BE MADE ORALLY OR IN WRITING.
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1 (D) PENALTY.--AN EMPLOYER WHO VIOLATES SUBSECTION (A), (B)
2 OR (C) SHALL BE LIABLE FOR ALL RELIEF NECESSARY TO MAKE THE
3 EMPLOYEE WHOLE, INCLUDING REINSTATEMENT WITH THE SAME SENIORITY
4 STATUS THAT THE EMPLOYEE WOULD HAVE HAD BUT FOR THE
5 DISCRIMINATION, THREE TIMES THE AMOUNT OF BACK PAY, PREVAILING
6 INTEREST ON THE BACK PAY, COMPENSATION FOR ANY SPECIAL DAMAGE
7 SUSTAINED AS A RESULT OF THE DISCRIMINATION AND, WHERE
8 APPROPRIATE, PUNITIVE DAMAGES. EXCEPT IN CASES ALLEGING
9 INTENTIONAL MISCONDUCT, PUNITIVE DAMAGES AGAINST A PERSON SHALL
10 NOT EXCEED 200% OF THE COMPENSATORY DAMAGES AWARDED. IN
11 ADDITION, THE EMPLOYER SHALL BE REQUIRED TO PAY ALL LITIGATION
12 COSTS AND REASONABLE ATTORNEY FEES. AN EMPLOYEE MAY BRING AN
13 ACTION IN THE COMMONWEALTH COURT FOR THE RELIEF PROVIDED IN THIS
14 SUBSECTION.
15 SECTION 705. LIMITATIONS.
16 (A) TIME OF FILING.--AN ACTION UNDER THIS ACT MAY NOT BE
17 FILED MORE THAN SIX YEARS AFTER THE DATE ON WHICH THE VIOLATION
18 OF THIS ACT IS COMPLETED OR MORE THAN THREE YEARS AFTER THE DATE
19 OF DISCOVERY BY THE PROSECUTING AUTHORITY, BUT IN ANY EVENT NO
20 MORE THAN TEN YEARS AFTER THE DATE ON WHICH THE VIOLATION OF
21 SECTION 301 IS COMPLETED.
22 (B) PRIOR ACTS.--AN ACTION UNDER THIS ACT MAY BE BROUGHT
23 REGARDING FALSE CLAIMS MADE PRIOR TO THE EFFECTIVE DATE OF THIS
24 ACT IF THE LIMITATIONS PERIOD SET FORTH IN SUBSECTION (A) HAS
25 NOT ELAPSED.
26 (C) PROOF.--IN ANY ACTION BROUGHT UNDER THIS ACT, THE
27 COMMONWEALTH, THE POLITICAL SUBDIVISION OR THE QUI TAM PLAINTIFF
28 SHALL BE REQUIRED TO PROVE ALL ESSENTIAL ELEMENTS OF THE CAUSE
29 OF ACTION, INCLUDING DAMAGES, BY A PREPONDERANCE OF THE
30 EVIDENCE.
20010H1285B3012 - 62 -
1 (D) ESTOPPEL.--NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A
2 GUILTY VERDICT, GUILTY PLEA OR NOLO CONTENDERE PLEA RENDERED IN
3 A CRIMINAL PROCEEDING WHICH ALLEGED A SCHEME TO OBTAIN FUNDS
4 FRAUDULENTLY FROM THE COMMONWEALTH OR A POLITICAL SUBDIVISION
5 SHALL ESTOP THE DEFENDANT FROM DENYING THE ESSENTIAL ELEMENTS OF
6 THE OFFENSE IN ANY ACTION WHICH INVOLVES THE SAME TRANSACTION AS
7 IN THE CRIMINAL PROCEEDING AND WHICH IS BROUGHT UNDER THIS ACT.
8 SECTION 706. REMEDIES.
9 (A) CIVIL REMEDIES.--
10 (1) THE COMMONWEALTH COURT SHALL HAVE JURISDICTION TO
11 PREVENT AND RESTRAIN VIOLATIONS OF SECTION 301 BY ISSUING
12 APPROPRIATE ORDERS, INCLUDING, BUT NOT LIMITED TO:
13 (I) ORDERING ANY PERSON TO DIVEST HIMSELF OF ANY
14 INTEREST, DIRECT OR INDIRECT, IN ANY BUSINESS OR ENTITY;
15 IMPOSING REASONABLE RESTRICTIONS ON THE FUTURE ACTIVITIES
16 OR INVESTMENTS OF ANY PERSON, INCLUDING, BUT NOT LIMITED
17 TO, PROHIBITING ANY PERSON FROM ENGAGING IN THE SAME TYPE
18 OF ENDEAVOR OR FREEZING THE PERSON'S ASSETS.
19 (II) MAKING DUE PROVISIONS FOR THE RIGHTS OF
20 INNOCENT PERSONS, ORDERING THE DISSOLUTION OF ANY
21 BUSINESS OR ENTITY, ORDERING THE DENIAL, SUSPENSION OR
22 REVOCATION OF CHARTERS OF DOMESTIC CORPORATIONS,
23 CERTIFICATES OF AUTHORITY AUTHORIZING FOREIGN
24 CORPORATIONS TO DO BUSINESS IN THIS COMMONWEALTH,
25 LICENSES, PERMITS OR PRIOR APPROVAL GRANTED TO ANY
26 BUSINESS OR ENTITY BY ANY DEPARTMENT OR AGENCY OF THE
27 COMMONWEALTH OR ANY OF ITS POLITICAL SUBDIVISIONS; OR
28 PROHIBITING ANY BUSINESS OR ENTITY FROM ENGAGING IN ANY
29 BUSINESS.
30 (2) INJUNCTIONS AGAINST FALSE CLAIMS:
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1 (I) IF A PERSON VIOLATES OR IS ABOUT TO VIOLATE THIS
2 ACT, THE PROSECUTING AUTHORITY MAY COMMENCE AN ACTION IN
3 COMMONWEALTH COURT TO ENJOIN SUCH VIOLATION.
4 (II) IF A PERSON ALIENATES OR DISPOSES OF PROPERTY,
5 OR INTENDS TO ALIENATE OR DISPOSE OF PROPERTY OBTAINED AS
6 A RESULT OF A VIOLATION OF THIS ACT OR PROPERTY WHICH IS
7 TRACEABLE TO SUCH VIOLATION, THE PROSECUTING AUTHORITY
8 MAY COMMENCE AN ACTION IN COMMONWEALTH COURT TO ENJOIN
9 SUCH ALIENATION OR DISPOSITION OF PROPERTY, OR FOR A
10 RESTRAINING ORDER TO PROHIBIT ANY PERSON FROM
11 WITHDRAWING, TRANSFERRING, REMOVING, DISSIPATING OR
12 DISPOSING OF ANY SUCH PROPERTY OR PROPERTY OF EQUIVALENT
13 VALUE AND APPOINT A TEMPORARY RECEIVER TO ADMINISTER SUCH
14 RESTRAINING ORDER.
15 (3) IN ANY PROCEEDING UNDER THIS SECTION, THE COURT
16 SHALL PROCEED AS SOON AS PRACTICABLE TO THE HEARING AND
17 DETERMINATION THEREOF. PENDING FINAL DETERMINATION, THE COURT
18 MAY ENTER PRELIMINARY OR SPECIAL INJUNCTIONS OR TAKE SUCH
19 OTHER ACTIONS, INCLUDING THE ACCEPTANCE OF SATISFACTORY
20 PERFORMANCE BONDS, AS IT MAY DEEM PROPER.
21 (B) REMEDIES CUMULATIVE.--
22 (1) THE PROVISIONS OF THIS ACT ARE NOT EXCLUSIVE AND
23 SHALL BE IN ADDITION TO ANY OTHER REMEDIES PROVIDED FOR IN
24 ANY OTHER LAW OR AVAILABLE UNDER COMMON LAW.
25 (2) ELECTION BY THE PROSECUTING AUTHORITY OR A QUI TAM
26 PLAINTIFF TO BRING AN ACTION UNDER THIS ACT SHALL NEITHER
27 PRECLUDE THE COMMONWEALTH OR POLITICAL SUBDIVISION FROM
28 BRINGING ANY OTHER APPROPRIATE ACTION NOR MOOT ANY SUCH
29 ACTION FILED PRIOR TO COMMENCEMENT OF AN ACTION UNDER THIS
30 ACT.
20010H1285B3012 - 64 -
1 (3) ELECTION BY THE PROSECUTING AUTHORITY OR A QUI TAM
2 PLAINTIFF TO BRING AN ACTION UNDER THIS ACT SHALL NOT
3 PRECLUDE THE COMMONWEALTH OR PROSECUTING AUTHORITY FROM
4 BRINGING CRIMINAL CHARGES AGAINST THE DEFENDANT, NOR SHALL IT
5 MOOT ANY PENDING CRIMINAL CHARGES.
6 (4) JUDGMENT FOR A DEFENDANT IN ANY ACTION BROUGHT UNDER
7 THIS ACT SHALL HAVE NO RES JUDICATA EFFECT IN ANY OTHER
8 ACTION BROUGHT BY THE COMMONWEALTH OR POLITICAL SUBDIVISION.
9 SECTION 707. ENFORCEMENT.
10 (A) PROSECUTING AUTHORITY.--THE PROSECUTING AUTHORITY SHALL
11 HAVE THE POWER AND DUTY TO ENFORCE THIS ACT, INCLUDING THE
12 AUTHORITY TO ISSUE CIVIL INVESTIGATIVE DEMANDS PURSUANT TO THIS
13 ACT, TO INSTITUTE PROCEEDINGS UNDER THIS ACT AND TO TAKE SUCH
14 ACTIONS AS MAY BE NECESSARY TO ASCERTAIN AND INVESTIGATE ALLEGED
15 VIOLATIONS OF THIS ACT. THE PROSECUTING AUTHORITY MAY DELEGATE
16 ITS POWERS TO INVESTIGATE AND PROSECUTE ACTIONS UNDER THIS ACT
17 TO APPROPRIATE DEPUTY ATTORNEYS GENERAL OR DEPUTY OR ASSISTANT
18 DISTRICT ATTORNEYS.
19 (B) CONSTRUCTION.--NOTHING CONTAINED IN THIS ACT SHALL BE
20 CONSTRUED TO LIMIT THE REGULATORY OR INVESTIGATIVE AUTHORITY OF
21 ANY DEPARTMENT OR AGENCY OF THE COMMONWEALTH OR POLITICAL
22 SUBDIVISION WHOSE FUNCTIONS MIGHT RELATE TO PERSONS, ENTERPRISES
23 OR MATTERS FALLING WITHIN THE SCOPE OF THIS ACT.
24 SECTION 708. CIVIL INVESTIGATIVE DEMAND.
25 (A) GENERAL RULE.--WHENEVER THE PROSECUTING AUTHORITY HAS
26 REASON TO BELIEVE THAT ANY PERSON MAY BE IN POSSESSION, CUSTODY
27 OR CONTROL OF ANY DOCUMENTARY MATERIAL OR INFORMATION RELEVANT
28 TO A FALSE CLAIM INVESTIGATION, THE PROSECUTING AUTHORITY MAY
29 ISSUE IN WRITING AND CAUSE TO BE SERVED UPON THE PERSON A CIVIL
30 INVESTIGATIVE DEMAND REQUIRING SUCH PERSON TO:
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1 (1) PRODUCE SUCH DOCUMENTARY MATERIAL FOR INSPECTION AND
2 COPYING;
3 (2) ANSWER IN WRITTEN INTERROGATORIES WITH RESPECT TO
4 SUCH DOCUMENTARY MATERIAL OR INFORMATION;
5 (3) GIVE ORAL TESTIMONY CONCERNING SUCH DOCUMENTARY
6 MATERIAL OR INFORMATION; OR
7 (4) FURNISH ANY COMBINATION OF SUCH MATERIAL, ANSWERS
8 AND TESTIMONY.
9 (B) CONTENT.--EACH DEMAND UNDER THIS SECTION SHALL:
10 (1) STATE THE NATURE OF THE CONDUCT CONSTITUTING THE
11 ALLEGED FALSE CLAIM VIOLATION WHICH IS UNDER INVESTIGATION
12 AND THE PROVISION OF LAW APPLICABLE THERETO.
13 (2) IF THE DEMAND IS FOR THE PRODUCTION OF DOCUMENTARY
14 MATERIAL:
15 (I) DESCRIBE THE CLASS OR CLASSES OF DOCUMENTARY
16 MATERIAL TO BE PRODUCED THEREUNDER WITH SUCH DEFINITENESS
17 AND CERTAINTY AS TO PERMIT THE MATERIAL TO BE FAIRLY
18 IDENTIFIED;
19 (II) STATE THAT THE DEMAND IS RETURNABLE FORTHWITH
20 OR PRESCRIBE A RETURN DATE WHICH WILL PROVIDE A
21 REASONABLE PERIOD OF TIME WITHIN WHICH THE MATERIAL SO
22 DEMANDED MAY BE ASSEMBLED AND MADE AVAILABLE FOR
23 INSPECTION AND COPYING OR REPRODUCTION; AND
24 (III) IDENTIFY AN INVESTIGATOR TO WHOM THE MATERIAL
25 SHALL BE MADE AVAILABLE.
26 (3) IF THE DEMAND IS FOR WRITTEN INTERROGATORIES:
27 (I) SET FORTH WITH SPECIFICITY THE WRITTEN
28 INTERROGATORIES TO BE ANSWERED;
29 (II) PRESCRIBE DATES AT WHICH TIME ANSWERS TO
30 WRITTEN INTERROGATORIES SHALL BE SUBMITTED; AND
20010H1285B3012 - 66 -
1 (III) IDENTIFY THE INVESTIGATOR TO WHOM SUCH ANSWERS
2 SHALL BE SUBMITTED.
3 (4) IF SUCH DEMAND IS FOR THE GIVING OF ORAL TESTIMONY:
4 (I) PRESCRIBE A DATE, TIME AND PLACE AT WHICH ORAL
5 TESTIMONY SHOULD BE COMMENCED;
6 (II) IDENTIFY THE INVESTIGATOR WHO SHALL CONDUCT THE
7 EXAMINATION AND THE PERSON TO WHOM THE TRANSCRIPT OF SUCH
8 INVESTIGATION SHALL BE SUBMITTED;
9 (III) SPECIFY THAT SUCH ATTENDANCE AND TESTIMONY ARE
10 NECESSARY TO THE CONDUCT OF THE INVESTIGATION; AND
11 (IV) DESCRIBE THE GENERAL PURPOSE FOR WHICH THE
12 DEMAND IS BEING ISSUED AND THE GENERAL NATURE OF THE
13 TESTIMONY, INCLUDING THE PRIMARY AREAS OF INQUIRY, WHICH
14 WILL BE TAKEN PURSUANT TO THE DEMAND.
15 (5) CONTAIN THE FOLLOWING STATEMENT PRINTED
16 CONSPICUOUSLY AT THE TOP OF THE DEMAND:
17 YOU HAVE THE RIGHT TO SEEK THE ASSISTANCE OF ANY
18 ATTORNEY, AND HE MAY REPRESENT YOU IN ALL PHASES OF
19 THE FALSE CLAIM INVESTIGATION OF WHICH THIS CIVIL
20 INVESTIGATIVE DEMAND IS A PART.
21 (C) LIMITATION.--NO DEMAND UNDER THIS SECTION SHALL:
22 (1) CONTAIN ANY REQUIREMENT WHICH WOULD BE HELD TO BE
23 UNREASONABLE IF CONTAINED IN A SUBPOENA DUCES TECUM ISSUED BY
24 ANY COURT IN CONNECTION WITH A GRAND JURY INVESTIGATION OF
25 THE ALLEGED VIOLATION; OR
26 (2) REQUIRE THE PRODUCTION OF ANY DOCUMENTARY EVIDENCE
27 WHICH WOULD BE PRIVILEGED FROM DISCLOSURE IF DEMANDED BY A
28 SUBPOENA DUCES TECUM ISSUED BY ANY COURT IN CONNECTION WITH A
29 GRAND JURY INVESTIGATION OF THE ALLEGED VIOLATION.
30 (D) SERVICE.--SERVICE OF ANY DEMAND OR ANY PETITION FILED
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1 UNDER THIS SECTION SHALL BE MADE IN THE MANNER PRESCRIBED BY THE
2 PENNSYLVANIA RULES OF CIVIL PROCEDURE FOR SERVICE OF WRITS AND
3 COMPLAINTS UNLESS OTHERWISE AGREED TO BY THE PROSECUTING
4 AUTHORITY AND THE PERSON.
5 (E) RETURN.--A VERIFIED RETURN BY THE INDIVIDUAL SERVING ANY
6 DEMAND OR PETITION UNDER THIS SECTION SETTING FORTH THE MANNER
7 OF SERVICE SHALL BE PRIMA FACIE PROOF OF SUCH SERVICE. IN THE
8 CASE OF SERVICE BY REGISTERED OR CERTIFIED MAIL, THE RETURN
9 SHALL BE ACCOMPANIED BY THE RETURN POST OFFICE RECEIPT OF
10 DELIVERY OF THE DEMAND.
11 (F) PROCEDURE.--
12 (1) A PERSON UPON WHOM A DEMAND ISSUED UNDER THIS
13 SECTION HAS BEEN DULY SERVED SHALL MAKE THE DEMANDED MATERIAL
14 AVAILABLE FOR INSPECTION AND COPYING OR REPRODUCTION TO AN
15 INVESTIGATOR DESIGNATED IN THE DEMAND AT THE PRINCIPAL PLACE
16 OF BUSINESS OF THE PERSON OR AT SUCH OTHER PLACE AS THE
17 INVESTIGATOR AND THE PERSON THEREAFTER MAY AGREE OR AS THE
18 COURT MAY DIRECT PURSUANT TO THIS SECTION ON THE RETURN DATE
19 SPECIFIED IN THE DEMAND. THE PERSON MAY, UPON AGREEMENT OF
20 THE INVESTIGATOR, SUBSTITUTE COPIES OF ALL OR ANY PART OF THE
21 DEMANDED MATERIAL FOR THE ORIGINALS OF THE DEMANDED MATERIAL.
22 (2) THE INVESTIGATOR TO WHOM ANY DOCUMENTARY MATERIAL IS
23 SO DELIVERED SHALL TAKE PHYSICAL POSSESSION OF THE MATERIAL
24 AND SHALL BE RESPONSIBLE FOR THE USE MADE OF THE MATERIAL AND
25 FOR ITS RETURN PURSUANT TO THIS SECTION. THE INVESTIGATOR MAY
26 CAUSE THE PREPARATION OF THE COPIES OF THE DOCUMENTARY
27 MATERIAL AS MAY BE REQUIRED FOR OFFICIAL USE. WHILE IN THE
28 POSSESSION OF THE INVESTIGATOR, NO MATERIAL SO PRODUCED SHALL
29 BE AVAILABLE FOR EXAMINATION BY ANY INDIVIDUAL OTHER THAN THE
30 PROSECUTING AUTHORITY OR ANY INVESTIGATOR WITHOUT THE CONSENT
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1 OF THE PERSON WHO PRODUCED THE MATERIAL. UNDER SUCH
2 REASONABLE TERMS AND CONDITIONS AS THE PROSECUTING AUTHORITY
3 SHALL PRESCRIBE, DOCUMENTARY MATERIAL WHILE IN THE POSSESSION
4 OF THE INVESTIGATOR SHALL BE AVAILABLE FOR EXAMINATION BY THE
5 PERSON WHO PRODUCED THE MATERIAL OR ANY DULY AUTHORIZED
6 REPRESENTATIVES OF THAT PERSON.
7 (3) THE PRODUCTION OF DOCUMENTARY MATERIAL IN RESPONSE
8 TO A CIVIL INVESTIGATIVE DEMAND SERVED UNDER THIS SECTION
9 SHALL BE MADE UNDER A SWORN CERTIFICATE, IN SUCH FORM AS THE
10 DEMAND DESIGNATES, BY:
11 (I) IN THE CASE OF A NATURAL PERSON, THE PERSON TO
12 WHOM THE DEMAND IS DIRECTED; OR
13 (II) IN THE CASE OF A PERSON OTHER THAN A NATURAL
14 PERSON, A PERSON HAVING KNOWLEDGE OF THE FACTS AND
15 CIRCUMSTANCES RELATING TO SUCH PRODUCTION AND AUTHORIZED
16 TO ACT ON BEHALF OF SUCH PERSON.
17 THE CERTIFICATE SHALL STATE THAT ALL OF THE DOCUMENTARY
18 MATERIAL REQUIRED BY THE DEMAND AND IN THE POSSESSION,
19 CUSTODY OR CONTROL OF THE PERSON TO WHOM THE DEMAND IS
20 DIRECTED HAS BEEN PRODUCED AND MADE AVAILABLE TO THE
21 INVESTIGATOR IDENTIFIED IN THE DEMAND.
22 (4) EACH INTERROGATORY IN A CIVIL DEMAND SERVED UNDER
23 THIS SECTION SHALL BE ANSWERED SEPARATELY AND FULLY IN
24 WRITING UNDER OATH AND SHALL BE SUBMITTED UNDER A SWORN
25 CERTIFICATE, IN SUCH FORM AS THE DEMAND DESIGNATES, BY:
26 (I) IN THE CASE OF A NATURAL PERSON, THE PERSON TO
27 WHOM THE DEMAND IS DIRECTED; OR
28 (II) IN THE CASE OF A PERSON OTHER THAN A NATURAL
29 PERSON, A PERSON OR PERSONS RESPONSIBLE FOR ANSWERING
30 EACH INTERROGATORY.
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1 (5) IF ANY INTERROGATORY IS OBJECTED TO, THE REASONS FOR
2 THE OBJECTION SHALL BE STATED IN THE CERTIFICATE INSTEAD OF
3 AN ANSWER. THE CERTIFICATE SHALL STATE THAT ALL INFORMATION
4 REQUIRED BY THE DEMAND AND IN THE POSSESSION, CUSTODY,
5 CONTROL OR KNOWLEDGE OF THE PERSON TO WHOM THE DEMAND IS
6 DIRECTED HAS BEEN SUBMITTED. TO THE EXTENT THAT ANY
7 INFORMATION IS NOT FURNISHED, THE INFORMATION SHALL BE
8 IDENTIFIED AND REASONS SET FORTH WITH PARTICULARITY REGARDING
9 THE REASONS WHY THE INFORMATION WAS NOT FURNISHED.
10 (6) (I) THE EXAMINATION OF ANY PERSON PURSUANT TO A
11 CIVIL INVESTIGATIVE DEMAND FOR ORAL TESTIMONY SERVED
12 UNDER THIS SECTION SHALL BE DEEMED AN "OFFICIAL
13 PROCEEDING" WITHIN THE MEANING OF 18 PA.C.S. § 4902(A)
14 (RELATING TO PERJURY). THE EXAMINATION SHALL BE TAKEN
15 BEFORE AN OFFICER AUTHORIZED TO ADMINISTER OATHS AND
16 AFFIRMATIONS BY THE LAWS OF THIS COMMONWEALTH. THE
17 OFFICER BEFORE WHOM THE TESTIMONY IS TO BE TAKEN SHALL
18 PUT THE WITNESS ON OATH OR AFFIRMATION AND SHALL,
19 PERSONALLY OR BY SOMEONE ACTING UNDER THE DIRECTION OF
20 THE OFFICER AND IN THE OFFICER'S PRESENCE, RECORD THE
21 TESTIMONY OF THE WITNESS. THE TESTIMONY SHALL BE TAKEN
22 ACCURATELY AND SHALL BE TRANSCRIBED. WHEN THE TESTIMONY
23 IS FULLY TRANSCRIBED, A COPY OF THE TRANSCRIPT SHALL BE
24 PROMPTLY FORWARDED TO THE DESIGNATED PERSON. THIS
25 SUBSECTION SHALL NOT PRECLUDE THE TAKING OF TESTIMONY BY
26 ANY MEANS AUTHORIZED BY, AND IN A MANNER CONSISTENT WITH,
27 THE PENNSYLVANIA RULES OF CIVIL PROCEDURE.
28 (II) THE INVESTIGATOR CONDUCTING THE EXAMINATION
29 SHALL EXCLUDE FROM THE PLACE WHERE THE EXAMINATION IS
30 HELD ALL PERSONS EXCEPT THE PERSON GIVING THE TESTIMONY,
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1 THE ATTORNEY FOR AND ANY OTHER REPRESENTATIVE OF THE
2 PERSON GIVING THE TESTIMONY, THE PROSECUTING AUTHORITY,
3 ANY PERSON WHO MAY BE AGREED UPON BY THE PROSECUTING
4 AUTHORITY AND THE PERSON GIVING THE TESTIMONY, AND ANY
5 STENOGRAPHER TAKING SUCH TESTIMONY.
6 (III) THE ORAL TESTIMONY OF ANY PERSON TAKEN
7 PURSUANT TO A CIVIL INVESTIGATIVE DEMAND SERVED UNDER
8 THIS SECTION SHALL BE TAKEN IN THE COUNTY WHERE THE
9 OFFICE OF THE INVESTIGATOR CONDUCTING THE EXAMINATION IS
10 SITUATED, OR IN SUCH OTHER PLACE AS MAY BE AGREED UPON BY
11 THE INVESTIGATOR AND SUCH PERSON.
12 (IV) WHEN THE TESTIMONY IS FULLY TRANSCRIBED, THE
13 INVESTIGATOR SHALL AFFORD THE WITNESS, WHO MAY BE
14 ACCOMPANIED BY COUNSEL, A REASONABLE OPPORTUNITY TO
15 EXAMINE AND READ THE TRANSCRIPT, UNLESS SUCH EXAMINATION
16 AND READING ARE WAIVED BY THE WITNESS. ANY CHANGES IN
17 FORM OR SUBSTANCE WHICH THE WITNESS DESIRES TO MAKE SHALL
18 BE ENTERED AND IDENTIFIED UPON THE TRANSCRIPT BY THE
19 OFFICER OR THE INVESTIGATOR, WITH A STATEMENT OF THE
20 REASONS GIVEN BY THE WITNESS FOR MAKING SUCH CHANGES. THE
21 TRANSCRIPT SHALL THEN BE SIGNED BY THE WITNESS, UNLESS
22 THE WITNESS IN WRITING WAIVES THE SIGNING, IS ILL, CANNOT
23 BE FOUND OR REFUSES TO SIGN. IF THE TRANSCRIPT IS NOT
24 SIGNED BY THE WITNESS WITHIN 30 DAYS AFTER BEING AFFORDED
25 A REASONABLE OPPORTUNITY TO EXAMINE IT, THE OFFICER OR
26 THE INVESTIGATOR SHALL SIGN IT AND STATE ON THE RECORD
27 THE FACT OF THE WAIVER, ILLNESS, ABSENCE OF THE WITNESS
28 OR THE REFUSAL TO SIGN, TOGETHER WITH THE REASONS, IF
29 ANY, GIVEN THEREFOR.
30 (V) UPON PAYMENT OF REASONABLE CHARGES THEREFOR, THE
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1 INVESTIGATOR SHALL FURNISH A COPY OF THE TRANSCRIPT TO
2 THE WITNESS ONLY, EXCEPT THAT THE PROSECUTING AUTHORITY
3 MAY, FOR GOOD CAUSE, LIMIT SUCH WITNESS TO INSPECTION OF
4 THE OFFICIAL TRANSCRIPT OF THE WITNESS' TESTIMONY.
5 (VI) ANY PERSON COMPELLED TO APPEAR FOR ORAL
6 TESTIMONY UNDER A CIVIL INVESTIGATIVE DEMAND MAY BE
7 ACCOMPANIED, REPRESENTED AND ADVISED BY COUNSEL. COUNSEL
8 MAY ADVISE THE PERSON, IN CONFIDENCE, WITH RESPECT TO ANY
9 QUESTION ASKED OF THAT PERSON. THE PERSON OR COUNSEL MAY
10 OBJECT ON THE RECORD TO ANY QUESTION, IN WHOLE OR IN
11 PART, AND SHALL BRIEFLY STATE FOR THE RECORD THE REASON
12 FOR THE OBJECTION. AN OBJECTION MAY BE MADE, RECEIVED AND
13 ENTERED UPON THE RECORD WHEN IT IS CLAIMED THAT SUCH
14 PERSON IS ENTITLED TO REFUSE TO ANSWER THE QUESTION ON
15 THE GROUNDS OF ANY CONSTITUTIONAL OR OTHER LEGAL RIGHT OR
16 PRIVILEGE, INCLUDING THE PRIVILEGE AGAINST SELF-
17 INCRIMINATION. THE PERSON MAY NOT OTHERWISE OBJECT TO OR
18 REFUSE TO ANSWER ANY QUESTION, AND MAY NOT DIRECTLY OR
19 THROUGH COUNSEL OTHERWISE INTERRUPT THE ORAL EXAMINATION.
20 IF THE PERSON REFUSES TO ANSWER ANY QUESTION, A PETITION
21 MAY BE FILED IN THE COMMONWEALTH COURT UNDER SECTION
22 708(G) FOR AN ORDER COMPELLING THE PERSON TO ANSWER THE
23 QUESTION.
24 (7) UPON COMPLETION OF:
25 (I) THE FALSE CLAIMS INVESTIGATION FOR WHICH ANY
26 DOCUMENTARY MATERIAL WAS PRODUCED UNDER THIS SECTION; AND
27 (II) ANY CASE OR PROCEEDING ARISING FROM SUCH
28 INVESTIGATION;
29 THE INVESTIGATOR SHALL RETURN TO THE PERSON WHO PRODUCED THE
30 MATERIAL ALL OF THE MATERIAL OTHER THAN COPIES OF THE
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1 MATERIAL MADE PURSUANT TO THIS SECTION WHICH HAVE NOT PASSED
2 INTO THE CONTROL OF ANY COURT OR GRAND JURY THROUGH
3 INTRODUCTION INTO THE RECORD OF SUCH CASE OR PROCEEDING.
4 (8) WHEN DOCUMENTARY MATERIAL HAS BEEN PRODUCED BY A
5 PERSON UNDER THIS SECTION FOR USE IN A FALSE CLAIMS
6 INVESTIGATION AND NO CASE OR PROCEEDING ARISING FROM THE
7 INVESTIGATION HAS BEEN INSTITUTED WITHIN A REASONABLE TIME
8 AFTER COMPLETION OF THE EXAMINATION AND ANALYSIS OF ALL
9 EVIDENCE ASSEMBLED IN THE COURSE OF THE INVESTIGATION, THE
10 PERSON SHALL BE ENTITLED, UPON WRITTEN DEMAND MADE UPON THE
11 PROSECUTING AUTHORITY, TO THE RETURN OF ALL DOCUMENTARY
12 MATERIAL, OTHER THAN COPIES OF THE MATERIAL MADE PURSUANT TO
13 THIS SECTION, SO PRODUCED BY THAT PERSON.
14 (G) FAILURE TO COMPLY.--WHENEVER A PERSON FAILS TO COMPLY
15 WITH A CIVIL INVESTIGATIVE DEMAND THAT IS SERVED UPON HIM UNDER
16 THIS SECTION OR WHENEVER SATISFACTORY COPYING OR REPRODUCTION OF
17 ANY OF THE MATERIAL CANNOT BE DONE AND THE PERSON REFUSES TO
18 SURRENDER THE MATERIAL, THE PROSECUTING AUTHORITY MAY FILE IN
19 THE COMMONWEALTH COURT AND SERVE UPON THE PERSON A PETITION FOR
20 AN ORDER OF THE COURT FOR THE ENFORCEMENT OF THIS SECTION.
21 (H) PETITION FOR RELIEF.--
22 (1) WITHIN 20 DAYS AFTER THE SERVICE OF ANY DEMAND UNDER
23 THIS SECTION UPON ANY PERSON OR AT ANY TIME BEFORE THE RETURN
24 DATE SPECIFIED IN THE DEMAND, WHICHEVER PERIOD IS SHORTER,
25 THE PERSON MAY FILE IN THE COMMONWEALTH COURT AND SERVE UPON
26 THE PROSECUTING AUTHORITY A PETITION FOR AN ORDER OF THE
27 COURT MODIFYING OR SETTING ASIDE THIS DEMAND. THE TIME
28 ALLOWED FOR COMPLIANCE WITH THE DEMAND, IN WHOLE OR IN PART,
29 AS DEEMED PROPER AND ORDERED BY THE COURT SHALL NOT RUN
30 DURING THE PENDENCY OF THE PETITION IN THE COURT. THE
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1 PETITION SHALL SPECIFY EACH GROUND UPON WHICH THE PETITIONER
2 RELIES IN SEEKING THE RELIEF AND MAY BE BASED ON ANY FAILURE
3 OF THE DEMAND TO COMPLY WITH THE PROVISIONS OF THIS SECTION
4 OR ON ANY CONSTITUTIONAL OR OTHER LEGAL RIGHT OR PRIVILEGE OF
5 THE PERSON.
6 (2) AT ANY TIME DURING WHICH THE PROSECUTING AUTHORITY
7 IS IN CUSTODY OR CONTROL OF DOCUMENTARY MATERIAL DELIVERED BY
8 A PERSON IN COMPLIANCE WITH A DEMAND UNDER THIS SECTION, THE
9 PERSON MAY FILE IN THE COMMONWEALTH COURT AND SERVE UPON THE
10 PROSECUTING AUTHORITY A PETITION FOR AN ORDER OF THE COURT
11 REQUIRING THE PERFORMANCE OF ANY DUTY IMPOSED BY THIS
12 SECTION.
13 (3) WHENEVER A PETITION IS FILED IN THE COMMONWEALTH
14 COURT, THE COURT SHALL HAVE JURISDICTION TO HEAR AND
15 DETERMINE THE MATTER SO PRESENTED AND, AFTER A HEARING AT
16 WHICH ALL PARTIES ARE REPRESENTED, TO ENTER SUCH ORDER OR
17 ORDERS AS MAY BE REQUIRED TO CARRY INTO EFFECT THE PROVISIONS
18 OF THIS SECTION.
19 (I) DEFINITION.--AS USED IN THIS SECTION, THE TERM
20 "DOCUMENTARY MATERIAL" INCLUDES, BUT IS NOT LIMITED TO, ANY
21 BOOK, PAPER, RECORD, RECORDING, TAPE, REPORT, MEMORANDUM, DATA,
22 WRITTEN OR ELECTRONIC COMMUNICATION OR OTHER DOCUMENT RELATING
23 TO THE BUSINESS AFFAIRS OF ANY PERSON, ENTERPRISE OR MATTER
24 FALLING WITHIN THE PURVIEW OF THIS ACT.
25 SECTION 709. IMMUNITY.
26 WHENEVER ANY INDIVIDUAL REFUSES ON THE BASIS OF HIS PRIVILEGE
27 AGAINST SELF-INCRIMINATION TO COMPLY WITH A CIVIL INVESTIGATIVE
28 DEMAND ISSUED PURSUANT TO THIS ACT OR TO TESTIFY OR PRODUCE
29 OTHER INFORMATION IN A PROCEEDING UNDER THIS ACT, THE
30 PROSECUTING AUTHORITY MAY INVOKE THE PROVISIONS OF 42 PA.C.S. §
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1 5947 (RELATING TO IMMUNITY OF WITNESSES).
2 SECTION 710. REGULATIONS.
3 (A) GENERAL RULE.--THE ATTORNEY GENERAL SHALL HAVE THE POWER
4 AND AUTHORITY TO PROMULGATE RULES AND REGULATIONS WHICH MAY BE
5 NECESSARY TO CARRY OUT THE PURPOSES SET FORTH IN THIS ACT.
6 (B) GUIDELINES.--IN ORDER TO FACILITATE THE SPEEDY
7 IMPLEMENTATION OF THIS ACT, THE ATTORNEY GENERAL SHALL HAVE THE
8 POWER AND AUTHORITY TO PROMULGATE, ADOPT AND USE GUIDELINES
9 WHICH SHALL BE PUBLISHED IN THE PENNSYLVANIA BULLETIN. THE
10 GUIDELINES SHALL NOT BE SUBJECT TO REVIEW PURSUANT TO SECTION
11 205 OF THE ACT OF JULY 31, 1968 (P.L.769, NO.240), REFERRED TO
12 AS THE COMMONWEALTH DOCUMENTS LAW, SECTIONS 204(B) AND 301(10)
13 OF THE ACT OF OCTOBER 15, 1980 (P.L.950, NO.164), KNOWN AS THE
14 COMMONWEALTH ATTORNEYS ACT, THE ACT OF JUNE 25, 1982 (P.L.633,
15 NO.181), KNOWN AS THE REGULATORY REVIEW ACT, AND SHALL BE
16 EFFECTIVE FOR A PERIOD OF NOT MORE THAN TWO YEARS FROM THE
17 EFFECTIVE DATE OF THIS ACT. AFTER THE EXPIRATION OF THE TWO-YEAR
18 PERIOD, THE GUIDELINES SHALL EXPIRE AND BE REPLACED BY
19 REGULATIONS WHICH SHALL BE PROMULGATED, ADOPTED AND PUBLISHED AS
20 PROVIDED BY LAW.
21 SECTION 711. SEVERABILITY.
22 THE PROVISIONS OF THIS ACT ARE SEVERABLE. IF ANY PROVISION OF
23 THIS ACT OR ITS APPLICATION TO ANY PERSON OR CIRCUMSTANCE IS
24 HELD INVALID, THE INVALIDITY SHALL NOT AFFECT OTHER PROVISIONS
25 OR APPLICATIONS OF THIS ACT WHICH CAN BE GIVEN EFFECT WITHOUT
26 THE INVALID PROVISION OR APPLICATION.
27 SECTION 712. EFFECTIVE DATE.
28 THIS ACT SHALL TAKE EFFECT IN 60 DAYS.
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