PRINTER'S NO. 1921
No. 1620 Session of 1995
INTRODUCED BY ROEBUCK, CLARK, LaGROTTA, FAIRCHILD, MIHALICH,
GIGLIOTTI, COLAIZZO, STABACK, CARN, JAROLIN, BELARDI,
DiGIROLAMO, McGEEHAN, DeLUCA, COWELL, RAMOS, L. I. COHEN,
MELIO, SERAFINI, WOZNIAK, TRUE, TRELLO, MUNDY, J. TAYLOR,
JOSEPHS AND ITKIN, MAY 10, 1995
REFERRED TO COMMITTEE ON JUDICIARY, MAY 10, 1995
AN ACT
1 Imposing civil liability on persons participation in the illegal
2 drug market; providing for the recovery of damages by persons
3 and entities; and establishing the procedure for bringing an
4 action to recover damages.
5 TABLE OF CONTENTS
6 Section 1. Short title.
7 Section 2. Definitions.
8 Section 3. Imposition of liability for participation in
9 illegal drug market.
10 Section 4. Recovery of damages.
11 Section 5. Action by individual drug user.
12 Section 6. Indemnification prohibited.
13 Section 7. Determination of illegal drug market target
14 community.
15 Section 8. Joinder of parties.
16 Section 9. Comparative negligence.
17 Sedtion 10. Action of contribution.
1 Section 11. Procedure at trial.
2 Section 12. Judgment procedure.
3 Section 13. Time for commencement of action.
4 Section 14. District attorney authorized to bring action.
5 Section 15. Stay of action.
6 Section 16. Effective date.
7 The General Assembly of the Commonwealth of Pennsylvania hereby
8 enacts as follows:
9 Section 1. Short title.
10 This act shall be known and may be cited as the Drug Dealer
11 Liability Act.
12 Section 2. Definitions.
13 The following words and phrases when used in this act shall
14 have the meanings given to them in this section unless the
15 context clearly indicates otherwise:
16 "Illegal drug." A drug, the distribution of which, is a
17 violation of the act of April 14, 1972 (P.L.233, No.64), known
18 as The Controlled Substance, Drug, Device and Cosmetic Act.
19 "Illegal drug market." The support system of illegal drug-
20 related operations, from production to retail sales, through
21 which an illegal drug reaches the user.
22 "Illegal drug market target community." The area described
23 under section 7.
24 "Individual drug user." The person whose illegal drug use is
25 the basis of an action brought under this act.
26 "Level one offense." Possession of one quarter ounce or
27 more, but less than four ounces, or distribution of less than
28 one ounce of a specified illegal drug, or possession of one
29 pound or 25 plants or more, but less than four pounds or plants,
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1 or distribution of less than one pound of marijuana.
2 "Level two offense." Possession of four ounces or more, but
3 less than eight ounces, or distribution of one ounce or more,
4 but less than two ounces, of a specified illegal drug, or
5 possession of four pounds or more or 50 plants or more, but less
6 than eight pounds or 75 plants, or distribution of more than one
7 pound but less than ten pounds of marijuana.
8 "Level three offense." Possession of eight ounces or more,
9 but less than 16 ounces, or distribution of two ounces or more,
10 but less than four ounces, of a specified illegal drug or
11 possession of eight pounds or more or 75 plants or more, but
12 less than 16 pounds or 100 plants, or distribution of more than
13 five pounds but less than ten pounds of marijuana.
14 "Level four offense." Possession of 16 ounces or more or
15 distribution of four ounces or more of a specified illegal drug
16 or possession of 16 pounds but or more or 100 plants or more or
17 distribution of ten pounds or more of marijuana.
18 "Participate in the illegal drug market." To distribute,
19 possess with an intent to distribute, commit an act intended to
20 facilitate the marketing or distribution of, or agree to
21 distribute, possess with an intent to distribute, or commit an
22 act intended to facilitate the marketing and distribution of an
23 illegal drug. The term does not include the purchase or receipt
24 of an illegal drug for personal use only.
25 "Period of illegal drug use." In relation to an individual
26 drug user, the time of first use by an individual of an illegal
27 drug to the accrual of the cause of action. The period of
28 illegal drug use is presumed to commence two years before the
29 cause of action accrues unless the defendant proves otherwise by
30 clear and convincing evidence.
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1 "Person." An individual, a governmental entity, corporation,
2 firm, trust, partnership, or incorporated or unincorporated
3 association, existing under or authorized by the laws of this
4 Commonwealth, another state or a foreign country.
5 "Place of illegal drug activity." In relation to an
6 individual drug user, each county in which the individual
7 possesses or uses an illegal drug or in which the individual
8 resides, attends school, or is employed during the period of the
9 illegal drug use of the individual, unless the defendant proves
10 otherwise by clear and convincing evidence.
11 "Place of participation." In relation to a defendant in an
12 action brought under this act, each county in which the person
13 participates in the illegal drug market or in which the person
14 resides, attends school, or is employed during the period of the
15 participation in the illegal drug market by the person.
16 "Specified illegal drug." Any drug,the distribution of
17 which, is a violation under the act of April 14, 1972 (P.L.233,
18 No.64), known as The Controlled Substance, Drug, Device and
19 Cosmetic Act.
20 Section 3. Imposition of liability for participation in illegal
21 drug market.
22 (a) General rule.--A person who knowingly participates in
23 the illegal drug market within this Commonwealth is liable for
24 civil damages under this act for injury resulting from use of an
25 illegal drug by that person.
26 (b) Exception.--A law enforcement officer or agency, the
27 Commonwealth or a person action at the direction of a law
28 enforcement officer or agency of the Commonwealth is not liable
29 for participating in the illegal drug market, if the
30 participation is in furtherance of an official investigation.
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1 Section 4. Recovery of damages.
2 (a) Persons entitled to recover.--One or more of the
3 following persons may bring an action for damages caused by use
4 of an illegal drug by an individual:
5 (1) A parent, legal guardian, child, spouse, or sibling
6 of the individual drug user.
7 (2) An individual who was exposed to an illegal drug in
8 utero.
9 (3) An employer of the individual drug user.
10 (4) A medical facility, insurer, governmental entity,
11 employer, or other entity that funds a drug treatment program
12 or employee assistance program for the individual drug user
13 or that otherwise expended money on behalf of the individual
14 drug user.
15 (b) Persons liable for damages.--A person entitled to bring
16 an action under this section may seek damages from one or more
17 of the following:
18 (1) A person who knowingly distributed, or knowingly
19 participated in the chain of distribution of, an illegal drug
20 that was actually used by the individual drug user.
21 (2) A person who knowingly participated in the illegal
22 drug market if:
23 (i) the place of the illegal drug activity by the
24 individual drug user is within the illegal drug market
25 target community of the defendant;
26 (ii) the participation of the defendant in the
27 illegal drug market was connected with the same type of
28 illegal drug used by the individual user; and
29 (iii) the defendant participated in the illegal drug
30 market at any time during the illegal drug use of the
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1 individual user.
2 (c) Elements of damages.--A person entitled to bring an
3 action under this section may recover all of the following
4 damages:
5 (1) Economic damages, including, but not limited to, the
6 cost of treatment and rehabilitation, medical expenses, loss
7 of economic or educational potential, loss of productivity,
8 absenteeism, support proximately caused by the illegal drug
9 use.
10 (2) Noneconomic damages, including, but not limited to,
11 physical and emotional pain, suffering, physical impairment,
12 emotional distress, mental and consortium, and other
13 nonpecuniary losses proximately caused by an individual's use of
14 an illegal drug.
15 (3) Exemplary damages.
16 (4) Reasonable attorney fees.
17 (5) Cost of suit, including but not limited to,
18 reasonable expenses for expert testimony.
19 Section 5. Action by individual drug user.
20 (a) Conditions for bringing action.--An individual drug user
21 shall not bring an action for damages caused by the use of an
22 illegal drug, except as otherwise provided in this section. An
23 individual drug user may bring an action for damages caused by
24 the use of an illegal drug only if all of the damages caused by
25 the use of an illegal drug only if all of the following
26 conditions are met:
27 (1) the individual personally discloses to narcotics
28 enforcement authorities, more than six months before filing
29 the actions, all the information known to the individual
30 regarding the individual's illegal drugs;
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1 (2) the individual has not used an illegal drug within
2 the six months before filing the action; and
3 (3) the individual continues to remain free of the use
4 an illegal drug throughout the pendency of the action.
5 (b) Persons against whom action may be brought.--A person
6 entitled to bring an action under this section may seek damages
7 only from a person who distributed, or is in the chain of
8 distribution of, an illegal drug that was actually used by the
9 individual drug user.
10 (c) Elements of damages.--A person entitled to bring an
11 action under this section may recover only the following
12 damages:
13 (1) economic damages, including, but not limited to, the
14 cost of treatment, rehabilitation, and medical expenses, loss
15 of economic or educational potential, loss of productivity,
16 absenteeism, accidents or injury, and other pecuniary loss
17 proximately caused by the person's illegal drug use;
18 (2) reasonable attorney fees; and
19 (3) costs of suit, including, but not limited to,
20 reasonable expenses for expert testimony.
21 Section 6. Indemnification prohibited.
22 A third party shall not pay damages under this act, or
23 provide a defense or money for a defense, on behalf of an
24 insured under a contract of insurance or indemnification.
25 Section 7. Determination of illegal drug market target
26 community.
27 A person whose participation in the illegal drug market
28 constitutes the following level offense shall be considered to
29 have the following illegal drug market target community:
30 (1) For a level one offense, the county in which the
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1 place of participation of the defendant is situated.
2 (2) For a level two offense, the target community
3 described in paragraph (1) along with all counties with a
4 border contiguous to that target community.
5 (3) For a level three offense, the target community
6 described in paragraph (2) plus counties with a border
7 contiguous to that target community.
8 (4) For a level four offense, the Commonwealth.
9 Section 8. Joinder of parties.
10 (a) Plaintiffs.--Two or more persons may join in action
11 under this act as plaintiffs if their respective actions have at
12 least one place of illegal drug activity in common and if any
13 portion of the period of illegal drug use overlaps with the
14 period of illegal drug use for every other plaintiff.
15 (b) Defendants.--Two or more persons may be joined in one
16 action under this act as defendants if those persons are liable
17 to at least one plaintiff.
18 (c) Common interest not required.--A plaintiff need not be
19 interested in defending against all the relief demanded.
20 Judgment may be given for one more plaintiffs according to their
21 respective liabilities.
22 Section 9. Comparative negligence.
23 (a) General rule.--An action by an individual drug user is
24 governed by the principles of comparative negligence attributed
25 to the plaintiff does not bar recovery but diminishes the award
26 of compensatory damages proportionally, according to the measure
27 of negligence attributed to the plaintiff.
28 (b) Burden of proof.--The burden of proving the comparative
29 negligence of the plaintiff is on the defendant, which shall be
30 shown by clear and convincing evidence.
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1 (c) Negligence not attributed to certain plaintiffs.--
2 Comparative negligence shall not be attributed to a plaintiff
3 who is not an individual drug user.
4 Section 10. Action for contribution.
5 A person subject to liability under this act has a right of
6 action for contribution against another person subject to
7 liability under this act. Contribution may be enforced either in
8 the original action or any a separate action brought for that
9 purpose. A plaintiff may seek recovery in accordance with this
10 act and existing law against a person whom a defendant has
11 asserted a right of contribution.
12 Section 11. Procedure at trial.
13 (a) Burden of proof.--Proof of participation in the illegal
14 drug market in an action brought under this act shall be shown
15 by clear and convincing evidence. Except as otherwise provided
16 in this act, other elements of the cause of action shall be
17 shown by a preponderance of the evidence.
18 (b) Effect of conviction for drug law violation.--A person
19 against whom recovery is sought who has been convicted of a
20 violation of the act of April 14, 1972 (P.L.233, No.64), known
21 as The Controlled Substance, Drug, Device and Cosmetic Act, or
22 the Comprehensive Drug Abuse Prevention and Control Act (Public
23 Law 91-513, 84 Stat. 1236), is estopped from denying
24 participation in the illegal drug market. A conviction under the
25 State or Federal law is also prima facie evidence of the
26 participation of the person in the illegal drug market during
27 the two years preceding the date of an act giving rise to a
28 conviction.
29 (c) Absence of conviction not a bar.--The absence of
30 criminal drug conviction of a person against whom recovery is
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1 sought does not bar an action against that person.
2 Section 12. Judgment procedure.
3 (a) Prejudgment attachment.--A plaintiff under this act,
4 subject to subsection (c), may request an ex parte prejudgment
5 attachment order from the court against all assets of a
6 defendant sufficient to satisfy a potential award. If attachment
7 is instituted, a defendant is entitled to an immediate hearing.
8 Attachment may be lifted if the defendant demonstrates that the
9 assets will be available to cover a potential award.
10 (b) Exemption of property prohibited.--A person against whom
11 a judgment has been rendered under this act is not eligible to
12 exempt any property, of whatever kind, from process to levy or
13 process to execute on the judgment.
14 (c) Property subject to forfeiture action.--Any assets
15 sought to satisfy a judgment under this act that are named in a
16 forfeiture section or have been seized for forfeiture by any
17 Federal or State agency may not be used to satisfy a judgment
18 unless and until the assets have been released following the
19 conclusion of the forfeiture action or are released by the
20 agency that seized the assets.
21 Section 13. Time for commencement of action.
22 (a) General rule.--Except as otherwise provided in this
23 section, a claim under this act shall not be brought more than
24 two years after the cause of action accrues. A cause of action
25 accrues under this act when a person who may recover has reason
26 to know of the harm from illegal drug use that is the basis for
27 the cause of action and has reason to know that the illegal drug
28 use is the cause of the harm.
29 (b) Extension of time.--For a plaintiff, the statute of
30 limitations under this section is tolled when the individual
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1 potential plaintiff is incapacitated by the use of an illegal
2 drug to the extent that the individual cannot reasonably be
3 expected to seek recovery under this act or as otherwise
4 provided for by law. For a defendant, the statute of limitations
5 under this section is tolled until six months after the
6 individual potential defendant is convicted of a criminal drug
7 offense.
8 (c) Claims antedating act.--The statute of limitations under
9 this act for a claim based on participation in the illegal drug
10 market that occurred prior to the effective date of this act
11 does not begin to run until the effective date of this act.
12 Section 14. District attorney authorized to bring action.
13 A district attorney may represent the Commonwealth
14 subdivision in an action under this act.
15 Section 15. Stay of action.
16 On motion by a governmental agency involved in a drug
17 investigation or prosecution, an action brought under this act
18 shall be stayed until the completion of the criminal
19 investigation or prosecution that gave rise to the motion for
20 the stay of the action.
21 Section 16. Effective date.
22 This act shall take effect in 60 days.
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