PRIOR PRINTER'S NO. 197 PRINTER'S NO. 308
No. 191 Session of 1991
INTRODUCED BY BROUJOS, BOYES, JOSEPHS, FREEMAN, OLIVER, DeLUCA,
TANGRETTI, COY, MELIO, DeWEESE, KUKOVICH, PETRARCA, PESCI,
CALTAGIRONE, VEON, LINTON, McNALLY, FREIND, CAPPABIANCA,
JAROLIN, NAHILL, RITTER, BOWLEY, G. SNYDER, KOSINSKI, HAYDEN,
BLAUM, TIGUE, STABACK, D. W. SNYDER, COLE, BATTISTO,
PISTELLA, COHEN, DALEY, COWELL, CAWLEY, GIGLIOTTI, HALUSKA,
MAIALE, RUDY, STISH, STURLA, MIHALICH, KASUNIC, MICHLOVIC,
STETLER, HERMAN, ITKIN, WOZNIAK, GEORGE, LLOYD, BUTKOVITZ,
MRKONIC, ROEBUCK, THOMAS, DONATUCCI, KAISER, GAMBLE, TRELLO,
COLAFELLA, SURRA, E. Z. TAYLOR AND LESCOVITZ,
JANUARY 30, 1991
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, FEBRUARY 5, 1991
AN ACT
1 Prohibiting contracts, combinations and conspiracies in
2 restraint of trade or commerce; prohibiting monopolies and
3 attempts to monopolize trade or commerce; prescribing powers
4 and duties of certain State officers and agencies; providing
5 for remedies, fines and penalties for violations of the act;
6 and barring certain causes of action.
7 TABLE OF CONTENTS
8 Section 1. Short title.
9 Section 2. Declaration of policy.
10 Section 3. Definitions.
11 Section 4. Contract, combination or conspiracy to restrain or
12 monopolize trade.
13 Section 5. Establishment, maintenance or use of a monopoly.
14 Section 6. Exclusions.
15 Section 7. Investigation.
1 Section 8. Violations; injunctive or equitable relief; civil
2 penalties.
3 Section 9. Damages and injunctive relief.
4 Section 10. Criminal penalties.
5 Section 11. Judgment in favor of Commonwealth as prima facie
6 evidence.
7 Section 12. Limitation of actions.
8 Section 13. Cumulative remedies.
9 Section 14. Uniformity of application and construction.
10 Section 15. Severability.
11 Section 16. Effective date.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Short title.
15 This act shall be known and may be cited as the Pennsylvania
16 Antitrust Act.
17 Section 2. Declaration of policy.
18 The General Assembly finds and declares that the purpose of
19 this act is to promote the public interest by a competitive
20 economic environment and to protect the economic welfare of
21 consumers, large and small businesses and the Commonwealth.
22 Section 3. Definitions.
23 The following words and phrases when used in this act shall
24 have the meanings given to them in this section unless the
25 context clearly indicates otherwise:
26 "Person." An individual, corporation, business trust,
27 partnership, association or any other legal entity. The term
28 includes a political subdivision.
29 "Political subdivision." The term includes an agency, a
30 board, a commission or an authority of a political subdivision.
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1 "Relevant market." The geographical area of actual or
2 potential competition in a line of trade or commerce, all or any
3 part of which is within this Commonwealth.
4 "Trade or commerce." The conduct of a business for profit or
5 not-for-profit producing or providing goods, commodities,
6 property or services and includes, without limitation,
7 advertising, franchising, solicitation, offering for sale, lease
8 or distribution of a service or property, tangible or
9 intangible, real, personal or mixed, or any other article of
10 commerce.
11 "Trade secret." Anything which constitutes, represents,
12 evidences or records secret or confidential scientific,
13 technical, merchandising, production, management or commercial
14 information.
15 Section 4. Contract, combination or conspiracy to restrain or
16 monopolize trade.
17 A contract, combination or conspiracy between two or more
18 persons in restraint of, or to monopolize, trade or commerce in
19 a relevant market is unlawful.
20 Section 5. Establishment, maintenance or use of a monopoly.
21 The establishment, maintenance or use of a monopoly, or any
22 attempt to establish a monopoly of trade or commerce in a
23 relevant market by any person, for the purpose of excluding or
24 limiting competition or controlling, fixing or maintaining
25 prices, is unlawful.
26 Section 6. Exclusions.
27 (a) Human labor.--Labor of a human being is not a commodity
28 or an article of commerce.
29 (b) Cooperative organizations.--This act shall not be
30 construed to forbid the existence and operation of any labor,
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1 agricultural or horticultural organization instituted for the
2 purpose of mutual help, while lawfully carrying out its
3 legitimate objects.
4 (c) Commonwealth and political subdivisions.--This act does
5 not apply to the Commonwealth or political subdivisions, or
6 officials or employees of the Commonwealth or political
7 subdivisions acting in their official capacities.
8 (d) Public utilities.--This act does not apply to activities
9 of, or to the rates charged by, a rural electric cooperative
10 corporation, as defined in the act of June 21, 1937 (P.L.1969,
11 No.389), known as the Electric Cooperative Corporation Act, or a
12 public utility as defined in 66 Pa.C.S. § 102 (relating to
13 definitions).
14 (E) REGULATED FINANCIAL INSTITUTIONS.--THIS ACT DOES NOT <--
15 APPLY TO ANY INSTITUTION SUBJECT TO THE FEDERAL BANK MERGER ACT,
16 THE FEDERAL BANK HOLDING COMPANY ACT OR THE FEDERAL DEPOSIT
17 INSURANCE ACT.
18 (e) (F) Competitively bid State contracts.--Persons bidding <--
19 on a contract let or to be let for competitive bidding by a
20 governmental agency, to the extent that those activities are
21 regulated by the act of October 28, 1983 (P.L.176, No.45), known
22 as the Antibid-Rigging Act, shall not be liable in actions under
23 this act.
24 (G) FEDERAL OR STATE-EXEMPT ACTIVITIES.--ANY ACTIVITY OR <--
25 CONDUCT AUTHORIZED OR EXEMPT UNDER PENNSYLVANIA STATUTORY OR
26 COMMON LAW, OR EXEMPT FROM THE PROVISIONS OF THE ANTITRUST LAWS
27 OF THE UNITED STATES, SHALL BE EXEMPT FROM THE PROVISIONS OF
28 THIS ACT.
29 Section 7. Investigation.
30 (a) Required attendance.--
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1 (1) Whenever the Office of Attorney General believes
2 that a person may be in possession, custody or control of
3 documentary material or may have information relevant to the
4 subject matter of an investigation for the purpose of
5 ascertaining whether a person is or has been engaged in a
6 violation of this act, he may require the attendance and
7 testimony of witnesses and the production of books, accounts,
8 papers, records, documents and files relating to the
9 investigation; and, for this purpose, the Attorney General or
10 his representatives may sign subpoenas, administer oaths or
11 affirmations, examine witnesses and receive evidence during
12 the investigation.
13 (2) A request for information shall state the subject
14 matter of the investigation, the conduct constituting the
15 alleged violation which is under investigation and the
16 provisions of this act applicable to the alleged violation. A
17 request for documentary material shall describe the material
18 to be produced with reasonable particularity so as to fairly
19 identify the documents demanded, provide a return date within
20 which the material is to be produced and identify the member
21 of the Attorney General's staff to whom the material shall be
22 given.
23 (3) In case of disobedience of a subpoena or the
24 contumacy of a witness appearing before the Attorney General
25 or his representative, the Attorney General or his
26 representative may, for good cause shown, invoke the aid of a
27 court of record of the Commonwealth, and the court may
28 thereupon issue an order requiring the person subpoenaed to
29 obey the subpoena or to give evidence or to produce books,
30 accounts, papers, records, documents and files relative to
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1 the matter in question. Failure to obey an order of the court
2 may be punished by the court as a contempt.
3 (b) Confidentiality.--
4 (1) No information, procedure, testimony or documentary
5 material produced under a demand under this section shall,
6 unless otherwise ordered by a court for good cause shown, be
7 produced for inspection or copying by, nor shall the contents
8 thereof be disclosed to, a person other than the Attorney
9 General or his representative without the consent of the
10 person who produced the information or material; except that
11 the Attorney General or his representative shall disclose
12 information or documentary material produced under this
13 section or information derived therefrom to officials of a
14 governmental agency affected by the alleged violation, and,
15 at the discretion of the Attorney General, may disclose to
16 the United States Department of Justice, the Federal Trade
17 Commission, another state or territory of the United States
18 or the District of Columbia, for use by that agency or entity
19 in connection with an investigation or proceeding within its
20 jurisdiction and authority, upon the prior certification of
21 an appropriate official of the agency that the information
22 shall be maintained in confidence other than use for official
23 purposes.
24 (2) Under reasonable terms and conditions as the
25 Attorney General or his representative shall prescribe, the
26 documentary material shall be available for inspection and
27 copying by the person who produced the material or a duly
28 authorized representative of that person. The Attorney
29 General or his representative may use such documentary
30 material or information or copies thereof as he determines
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1 necessary in the enforcement of this act, including
2 presentation before any court. Material which contains trade
3 secrets or other highly confidential matter shall not be
4 presented except with the approval of the court in which a
5 proceeding is pending after adequate notice to the person
6 furnishing the material.
7 (c) Limited disclosure.--At the Attorney General's
8 discretion, the Attorney General may disclose information
9 discovered under this section to the United States Department of
10 Justice, the District of Columbia, another agency of the
11 Commonwealth or a political subdivision, upon the prior
12 certification of an appropriate official of the requestor that
13 the information will be maintained in confidence other than use
14 for official purposes and the requestor will abide by the
15 provisions of subsection (b).
16 (d) Wrongful disclosure of information.--Any person who
17 publishes or communicates any procedure, testimony or material
18 produced, which is required to be kept confidential pursuant to
19 this section, commits a misdemeanor of the third degree.
20 Section 8. Violations; injunctive or equitable relief; civil
21 penalties.
22 The Attorney General may bring an action for appropriate
23 injunctive or other equitable relief and civil penalties in the
24 name of the Commonwealth for a violation of this act. The court
25 may assess for benefit of the Commonwealth a civil penalty of
26 not more than $100,000 for each violation of this act and for
27 the cost of suit, including reasonable attorney fees.
28 Section 9. Damages and injunctive relief.
29 (a) Commonwealth or political subdivision.--The Commonwealth
30 or a political subdivision threatened with injury or injured
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1 directly or indirectly in its business or property by a
2 violation of this act may bring an action for appropriate
3 injunctive or other equitable relief, damages sustained by
4 reason of a violation of this act, and, as determined by the
5 court, interest on the damages from the date of the complaint,
6 taxable costs and reasonable attorney fees.
7 (b) Other persons.--Any other person threatened with injury
8 DIRECTLY or injured directly or indirectly in his or her <--
9 business or property by a violation of this act may bring an
10 action for appropriate injunctive or other equitable relief
11 against immediate irreparable harm, damages sustained by reason
12 of a violation of this act, and, as determined by the court,
13 interest on the damages from the date of the complaint, taxable
14 costs and reasonable attorney fees.
15 (c) Damages.--Damages recoverable under this section by
16 persons shall be three times the actual damages sustained
17 thereby, taxable costs and reasonable attorney fees. Damages
18 recoverable under this section by the Commonwealth shall be
19 actual damages sustained, taxable costs and reasonable attorney
20 fees. Damages are subject to the following:
21 (1) Limitations on damages recoverable under the
22 National Cooperative Research Act of 1984 (Public Law 98-462,
23 15 U.S.C. § 4301 et seq.) and the Export Trading Company Act
24 of 1982 (Public Law 97-290, 15 U.S.C. § 4001 et seq.) shall
25 apply to actions under this section.
26 (2) If the conduct which gives rise to a violation of
27 this act also gives rise to a violation of the act of October
28 28, 1983 (P.L.176, No.45), known as the Antibid-Rigging Act,
29 the amount awarded as compensation under this section shall
30 not duplicate the amount awarded under the Antibid-Rigging
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1 Act.
2 (d) Liability.--Liability under this section shall be joint
3 and several. Persons subject to liability under this section
4 shall be entitled to contribution under 42 Pa.C.S. Ch. 83 Subch.
5 B (relating to contribution among tort-feasors).
6 Section 10. Criminal penalties.
7 (a) Institution of criminal action.--The Attorney General
8 shall have the authority to institute criminal proceedings for
9 violations of sections 4 and 5.
10 (b) Entity penalty.--A partnership, corporation, association
11 or other entity which violates section 4 or 5 commits a felony
12 of the third degree and shall, upon conviction, be sentenced to
13 pay a fine of not more than $1,000,000.
14 (c) Individual penalty.--An individual who violates section
15 4 or 5 commits a felony of the third degree and shall, upon
16 conviction, be sentenced to pay a fine of not more than $100,000
17 or to imprisonment for not more than three years, or both.
18 (d) Disposition of funds.--All fines collected pursuant to
19 this section shall be paid into the State Treasury.
20 (e) Double jeopardy.--A criminal prosecution under this
21 section may not be brought against a person previously charged
22 by information or indictment with a criminal violation of the
23 act of October 28, 1983 (P.L.176, No.45), known as the Antibid-
24 Rigging Act, or of a Federal antitrust statute if either
25 prosecution is based upon substantially the same conduct upon
26 which a prosecution under this section could be based and
27 jeopardy has attached under the prosecution.
28 Section 11. Judgment in favor of Commonwealth as prima facie
29 evidence.
30 A final judgment or decree determining that a person has
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1 violated this act in an action brought by the Commonwealth under
2 section 8, 9(a) or 10 other than a consent judgment or decree
3 entered before any testimony has been taken, is prima facie
4 evidence against the person in any other action against the
5 person under section 9 as to all matters with respect to which
6 the judgment or decree would be an estoppel between the parties
7 to the action. This section does not affect the application of
8 collateral estoppel or issue preclusion.
9 Section 12. Limitation of actions.
10 (a) Actions under sections 8 and 10.--An action under
11 section 8 or 10 is barred if not commenced within four years
12 after the claim for relief or cause of action accrues.
13 (b) Actions under section 9.--An action to recover damages
14 under section 9 is barred if not commenced within four years
15 after the claim for relief or cause of action accrues, or within
16 one year after the conclusion of any timely action brought by
17 the Commonwealth under section 9(a) or 10 which is based in
18 whole or in part on any matter complained of in the action for
19 damages, whichever is later.
20 Section 13. Cumulative remedies.
21 The remedies provided in this act are cumulative.
22 Section 14. Uniformity of application and construction.
23 This act shall be applied and construed to effectuate its
24 general purpose to make uniform the law with respect to the
25 subject of this act among those states that enact similar
26 provisions.
27 Section 15. Severability.
28 If any portion of this act or the application of this act to
29 any person or circumstances is found to be invalid by a court,
30 such invalidity shall not affect the remaining portions of
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1 applications of this act which can be given effect without the
2 invalid portion or application, provided the remaining portions
3 are not determined by the court to be inoperable, and to this
4 end this act is declared to be severable.
5 Section 16. Effective date.
6 This act shall take effect in 60 days.
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