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PRIOR PRINTER'S NO. 181
PRINTER'S NO. 269
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
8
Session of
2017
INTRODUCED BY FOLMER, SCARNATI, LEACH, VULAKOVICH,
RESCHENTHALER, WAGNER, LAUGHLIN, STEFANO, BREWSTER,
BARTOLOTTA, BOSCOLA, MENSCH AND BROWNE, JANUARY 26, 2017
SENATOR GREENLEAF, JUDICIARY, AS AMENDED, JANUARY 31, 2017
AN ACT
Amending Titles 4 (Amusements), 18 (Crimes and Offenses), 30
(Fish), 42 (Judiciary and Judicial Procedure) and 75
(Vehicles) of the Pennsylvania Consolidated Statutes,
extensively revising forfeiture provisions as follows: in
administration and enforcement relating to gaming, further
providing for prohibited acts and penalties; in inchoate
crimes, further providing for the offense of manufacture,
distribution, use or possession of devices for theft of
telecommunications services; in assault, further providing
for the offense of terrorism; in loss of property rights
relating to sexual offenses, further providing for general
rule and repealing provisions relating to process and
seizure, to custody of property and to disposal of property;
in forgery and fraudulent practices, further providing for
the offenses of copying and recording devices and for
trademark counterfeiting; in riot, disorderly conduct and
related offenses, further providing for the offense of
gambling devices, gambling, etc.; in wiretapping and
electronic surveillance, further providing for seizure and
forfeiture of electronic, mechanical or other devices; in
minors, further providing for sentencing and penalties for
trafficking drugs to minors; in nuisances, further providing
for the offense of scattering rubbish; in other offenses,
further providing for drug trafficking sentencing and
penalties; in vehicle chop shop and illegally obtained and
altered property, further providing for loss of property
rights to Commonwealth and repealing provisions relating to
procedure with respect to seized property subject to liens
and rights of lienholders; in enforcement relating to Fish
and Boat Code, further providing for forfeiture of fish and
devices; in actions, proceedings and other matters generally
relating to Judicial Code, providing for forfeiture of
assets; in forfeitures, repealing provisions relating to
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controlled substances forfeiture, to terrorism forfeiture and
to procedure with respect to seized property subject to liens
and rights of lienholders; in size, weight and load relating
to Vehicle Code, further providing for transporting
foodstuffs in vehicles used to transport waste; in liquid
fuels and fuel use tax enforcement, further providing for
forfeitures and process and procedures and for disposition of
fines and forfeitures; providing for conduct of forfeiture;
and making repeals of provisions of the Liquor Code and
another act relating to certain forfeiture of property.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 1518(f) of Title 4 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 1518. Prohibited acts; penalties.
* * *
(f) Property subject to seizure, confiscation, destruction
or forfeiture.--Any equipment, device or apparatus, money,
material, gaming proceeds or substituted proceeds or real or
personal property used, obtained or received or any attempt to
use, obtain or receive the device, apparatus, money, material,
proceeds or real or personal property in violation of this part
shall be subject to [seizure, confiscation, destruction or
forfeiture.] the provisions of 42 Pa.C.S. §§ 5803 (relating to
asset forfeiture), 5805 (relating to forfeiture procedure), 5806
(relating to motion for return of property), 5807 (relating to
restrictions on use), 5807.1 (relating to prohibition on
adoptive seizures) and 5808 (relating to exceptions).
Section 2. Section 910(c.1) of Title 18 is amended to read:
§ 910. Manufacture, distribution, use or possession of devices
for theft of telecommunications services.
* * *
(c.1) Forfeiture of unlawful telecommunication devices.--
Upon conviction of a defendant under this section, the court
may, in addition to any other sentence authorized by law, direct
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that the defendant forfeit any unlawful telecommunication
devices in the defendant's possession or control which were
involved in the violation for which the defendant was convicted.
The forfeiture shall be conducted in accordance with 42 Pa.C.S.
§§ 5803 (relating to asset forfeiture), 5805 (relating to
forfeiture procedure), 5806 (relating to motion for return of
property), 5807 (relating to restrictions on use), 5807.1
(relating to prohibition on adoptive seizures) and 5808
(relating to exceptions).
* * *
Section 3. Section 2717 of Title 18 is amended by adding a
subsection to read:
§ 2717. Terrorism.
* * *
(b.1) Forfeiture.--Each foreign or domestic asset related to
terrorism, including the following, shall be subject to
forfeiture under 42 Pa.C.S. §§ 5803 (relating to asset
forfeiture), 5805 (relating to forfeiture procedure), 5806
(relating to motion for return of property), 5807 (relating to
restrictions on use), 5807.1 (relating to prohibition on
adoptive seizures) and 5808 (relating to exceptions) and no
property right shall exist in the asset:
(1) Each foreign or domestic asset:
(i) Of an individual, entity or organization engaged
in planning or perpetrating an act in this Commonwealth
which violates this section and each foreign or domestic
asset affording a person a source of influence over the
entity or organization.
(ii) Acquired or maintained by a person with the
intent and for the purpose of supporting, planning,
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conducting or concealing an act in this Commonwealth
which violates this section.
(iii) Derived from, involved in or used or intended
to be used to commit an act in this Commonwealth which
violates this section.
(2) Each asset within this Commonwealth:
(i) Of an individual, entity or organization engaged
in planning or perpetrating an act which violates this
section.
(ii) Acquired or maintained with the intent and for
the purpose of supporting, planning, conducting or
concealing an act which violates this section.
(iii) Derived from, involved in or used or intended
to be used to commit an act which violates this section.
* * *
Section 4. Section 3141 of Title 18 is amended to read:
§ 3141. General rule.
A person:
(1) convicted under section 3121 (relating to rape),
3122.1 (relating to statutory sexual assault), 3123 (relating
to involuntary deviate sexual intercourse), 3124.1 (relating
to sexual assault), 3125 (relating to aggravated indecent
assault) or 3126 (relating to indecent assault); or
(2) required to register with the Pennsylvania State
Police under 42 Pa.C.S. Ch. 97 Subch. H (relating to
registration of sexual offenders);
may be required to forfeit property rights in any property or
assets used to implement or facilitate commission of the crime
or crimes of which the person has been convicted. [Such property
may include, but is not limited to, a computer or computers,
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telephone equipment, firearms, licit or illicit prescription
drugs or controlled substances, a motor vehicle or such other
property or assets as determined by the court of common pleas to
have facilitated the person's criminal misconduct.] The
forfeiture shall be conducted in accordance with 42 Pa.C.S. §§
5803 (relating to asset forfeiture), 5805 (relating to
forfeiture procedure), 5806 (relating to motion for return of
property), 5807 (relating to restrictions on use), 5807.1
(relating to prohibition on adoptive seizures) and 5808
(relating to exceptions).
Section 5. Sections 3142, 3143 and 3144 of Title 18 are
repealed:
[§ 3142. Process and seizure.
(a) Seizure.--Property subject to forfeiture under this
section may be seized by law enforcement authority upon process
issued by the court of common pleas having jurisdiction over the
person or property.
(b) Seizure without process.--Seizure without process may be
made if the seizure is incident to an arrest or a search under a
search warrant and there is probable cause to be believe that
the property was or is material to the charges for which the
arrest or search warrant was issued. In seizures without
process, proceedings for the issuance thereof shall be
instituted immediately.
(c) Return of property.--Property belonging to someone other
than the convicted sex offender or registrant shall be returned
if the offense was committed without the knowledge or consent of
the owner.
§ 3143. Custody of property.
Property taken or detained under this subchapter is deemed to
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be the property of the law enforcement authority having custody
thereof and is subject only to the court of common pleas having
jurisdiction over the criminal or forfeiture proceedings, the
district attorney in the matter or the Attorney General.
§ 3144. Disposal of property.
Property taken or detained pursuant to the provisions of this
subchapter shall be sold in the manner of property forfeited
under 42 Pa.C.S. Ch. 68 (relating to forfeitures). The net
proceeds, as determined by the law enforcement authority having
custody thereof, shall be utilized for investigation or
prosecution of sexual offenses or donated to nonprofit
charitable institutions which provide counseling and other
assistance to victims of sexual offenses.]
Section 6. Sections 4116(i), 4119(f)(2)(i), 5513(b), 5707,
6314(f), 6501(b)(5) and (d), 7508(e) and 7707 of Title 18 are
amended to read:
§ 4116. Copying; recording devices.
* * *
(i) Forfeiture.--
(1) No property right shall exist in any property used
or intended for use in the commission of a violation of this
section or in any proceeds traceable to a violation of this
section, and the same shall be deemed contraband and
forfeited in accordance with the provisions [set forth in
section 6501(d) (relating to scattering rubbish).] of 42
Pa.C.S. §§ 5803 (relating to asset forfeiture), 5805
(relating to forfeiture procedure), 5806 (relating to motion
for return of property), 5807 (relating to restrictions on
use), 5807.1 (relating to prohibition on adoptive seizures)
and 5808 (relating to exceptions).
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[(2) Property and proceeds found in close proximity to
illegally recorded devices shall be rebuttably presumed to be
used or intended for use to facilitate a violation of this
section.]
(3) The provisions of this subsection shall not, in any
way, limit the right of the Commonwealth to exercise any
rights or remedies otherwise provided by law.
§ 4119. Trademark counterfeiting.
* * *
(f) Seizure, forfeiture and disposition.--
* * *
(2) (i) All seized personal property and property
constituting or derived from any proceeds referenced in
paragraph (1) shall be forfeited in accordance with [the
procedures set forth in section 6501(d) (relating to
scattering rubbish).] 42 Pa.C.S. §§ 5803 (relating to
asset forfeiture), 5805 (relating to forfeiture
procedure), 5806 (relating to motion for return of
property), 5807 (relating to restrictions on use), 5807.1
(relating to prohibition on adoptive seizures) and 5808
(relating to exceptions).
* * *
§ 5513. Gambling devices, gambling, etc.
* * *
(b) Confiscation of gambling devices.--Any gambling device
possessed or used in violation of the provisions of subsection
(a) [of this section] shall be seized and forfeited to the
Commonwealth. [All provisions of law relating to the seizure,
summary and judicial forfeiture, and condemnation of
intoxicating liquor shall apply to seizures and forfeitures
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under the provisions of this section.] The forfeiture shall be
conducted in accordance with 42 Pa.C.S. §§ 5803 (relating to
asset forfeiture), 5805 (relating to forfeiture procedure), 5806
(relating to motion for return of property), 5807 (relating to
restrictions on use), 5807.1 (relating to prohibition on
adoptive seizures) and 5808 (relating to exceptions).
* * *
§ 5707. Seizure and forfeiture of electronic, mechanical or
other devices.
Any electronic, mechanical or other device possessed, used,
sent, distributed, manufactured, or assembled in violation of
this chapter is hereby declared to be contraband and may be
seized and forfeited to the Commonwealth[.] in accordance with
42 Pa.C.S. §§ 5803 (relating to asset forfeiture), 5805
(relating to forfeiture procedure), 5806 (relating to motion for
return of property), 5807 (relating to restrictions on use),
5807.1 (relating to prohibition on adoptive seizures) and 5808
(relating to exceptions).
§ 6314. Sentencing and penalties for trafficking drugs to
minors.
* * *
(f) Forfeiture.--Assets against which a petition seeking
forfeiture [petition] has been filed and is pending or against
which the Commonwealth has indicated an intention to file a
[forfeiture] petition seeking forfeiture shall not be subject to
a fine under this section.
* * *
§ 6501. Scattering rubbish.
* * *
(b) Penalty.--
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* * *
(5) Any vehicle, equipment or conveyance, including any
private automobile and small truck, used for the
transportation or disposal of trash, garbage or debris in the
commission of a second or subsequent offense under subsection
(a)(3) may be deemed contraband and forfeited in accordance
with [the provisions set forth in this section.] 42 Pa.C.S.
§§ 5803 (relating to asset forfeiture), 5805 (relating to
forfeiture procedure), 5806 (relating to motion for return of
property), 5807 (relating to restrictions on use), 5807.1
(relating to prohibition on adoptive seizures) and 5808
(relating to exceptions).
* * *
[(d) Forfeiture.--
(1) Property subject to forfeiture under this section
may be seized by the law enforcement authority upon process
issued by any court of common pleas having jurisdiction over
the property.
(2) Property taken or detained under this section shall
not be subject to replevin but is deemed to be in the custody
of the law enforcement authority subject only to the orders
and decrees of the court of common pleas having jurisdiction
over the forfeiture proceedings and of the district attorney.
When property is seized under this section, the law
enforcement authority shall place the property under seal and
either:
(i) remove the property to a place designated by it;
or
(ii) require that the district attorney take custody
of the property and remove it to an appropriate location
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for disposition in accordance with law.
(3) Whenever property is forfeited under this section,
the property shall be transferred to the custody of the
municipal corporation. The municipal corporation shall sell
any forfeited property, but the proceeds from any such sale
shall be used to pay all proper expenses of the proceedings
for forfeiture and sale, including expenses of seizure,
maintenance of custody, advertising and court costs. The
balance of the proceeds shall be used for the enforcement of
this act.
(4) The proceedings for the forfeiture or condemnation
of property, the sale of which is provided for in this
section, shall be in rem, in which the Commonwealth shall be
the plaintiff and the property the defendant. A petition
shall be filed in the court of common pleas of the judicial
district where the property is located, verified by oath or
affirmation of an officer or citizen, containing the
following:
(i) A description of the property seized.
(ii) A statement of the time and place where seized.
(iii) The owner, if known.
(iv) The person or persons in possession, if known.
(v) An allegation that the property is subject to
forfeiture pursuant to this subsection and an averment of
material facts upon which the forfeiture action is based.
(vi) A prayer for an order of forfeiture that the
property be adjudged forfeited to the Commonwealth and
condemned and be ordered sold according to law, unless
cause be shown to the contrary.
(5) A copy of the petition required under paragraph (4)
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shall be served personally or by certified mail on the owner
or upon the person or persons in possession at the time of
the seizure. The copy shall have endorsed a notice, as
follows:
To the Claimant of within Described Property:
You are required to file an answer to this petition,
setting forth your title in, and right to possession of,
the property within 30 days from the service hereof, and
you are also notified that, if you fail to file the
answer, a decree of forfeiture and condemnation will be
entered against the property.
The notice shall be signed by the district attorney, deputy
district attorney or assistant district attorney.
(6) If the owner of the property is unknown or there was
no person in possession of the property when seized or if the
owner or such person or persons in possession at the time of
the seizure cannot be personally served or located within the
jurisdiction of the court, notice of the petition shall be
given by the Commonwealth through an advertisement in only
one newspaper of general circulation published in the county
where the property shall have been seized, once a week for
two successive weeks. No other advertisement of any sort
shall be necessary, any other law to the contrary
notwithstanding. The notice shall contain a statement of the
seizure of the property with a description of the property
and the place and date of seizure and shall direct any
claimants to the property to file a claim on or before a date
given in the notice, which date shall not be less than 30
days from the date of the first publication. If no claims are
filed within 30 days of publication, the property shall
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summarily forfeit to the Commonwealth.
(7) For purposes of this section, the owner or other
such person cannot be found in the jurisdiction of the court
if:
(i) a copy of the petition is mailed to the last
known address by certified mail and is returned without
delivery;
(ii) personal service is attempted once but cannot
be made at the last known address; and
(iii) a copy of the petition is left at the last
known address.
(8) The notice provisions of this section are
automatically waived when the owner, without good cause,
fails to appear in court in response to a subpoena on the
underlying criminal charges. Forty-five days after such a
failure to appear, if good cause has not been demonstrated,
the property shall summarily forfeit to the Commonwealth.
(9) Upon the filing of a claim for the property setting
forth a right of possession, the case shall be deemed at
issue and a time shall be fixed for the hearing.
(10) At the time of the hearing, if the Commonwealth
produces evidence that the property in question was
unlawfully used, possessed or otherwise subject to forfeiture
under this section, the burden shall be upon the claimant to
show:
(i) That the claimant is the owner of the property
or the holder of a chattel mortgage or contract of
conditional sale thereon.
(ii) That the claimant lawfully acquired the
property.
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(iii) That it was not unlawfully used or possessed
by him. In the event that it shall appear that the
property was unlawfully used or possessed by a person
other than the claimant, then the claimant shall show
that the unlawful use or possession was without his
knowledge or consent. Such absence of knowledge or
consent must be reasonable under the circumstances
presented.
(11) If a person claiming the ownership of or right of
possession to or claiming to be the holder of a chattel
mortgage or contract of conditional sale upon the property,
the disposition of which is provided for in this section,
prior to the sale presents a petition to the court alleging
over the property lawful ownership, right of possession, a
lien or reservation of title and if, upon public hearing, due
notice of which having been given to the district attorney,
the claimant shall prove by competent evidence to the
satisfaction of the court that the property was lawfully
acquired, possessed and used by him or, it appearing that the
property was unlawfully used by a person other than the
claimant, that the unlawful use was without the claimant's
knowledge or consent, then the court may order the property
returned or delivered to the claimant. Such absence of
knowledge or consent must be reasonable under the
circumstances presented. Otherwise, it shall be retained for
official use or sold in accordance with paragraph (4).]
* * *
§ 7508. Drug trafficking sentencing and penalties.
* * *
(e) Forfeiture.--Assets against which a petition seeking
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forfeiture [petition] has been filed and is pending or against
which the Commonwealth has indicated an intention to file a
[forfeiture] petition seeking forfeiture shall not be subject to
a fine. Nothing in this section shall prevent a fine from being
imposed on assets which have been subject to an unsuccessful
forfeiture petition.
* * *
§ 7707. Loss of property rights to Commonwealth.
(a) Forfeitures generally.--The following shall be subject
to forfeiture to the Commonwealth, and no property right shall
exist in them:
(1) Any tool, implement or instrumentality, including,
but not limited to, a vehicle or vehicle part used or
possessed in connection with any violation of this chapter.
(2) All materials, products and equipment of any kind
which are used or intended for use in violation of this
chapter.
(3) All books, records, microfilm, tapes and data which
are used or intended for use in violation of this chapter.
(4) All money, negotiable instruments, securities or
other things of value used or intended to be used to
facilitate any violation of this chapter and all proceeds
traceable to any transactions in violation of this chapter.
(5) All real property used or intended to be used to
facilitate any violation of this chapter, including
structures or other improvements thereon and including any
right, title and interest in the whole or any lot or tract of
land and any appurtenances or improvements which are used or
intended to be used in any manner or part to commit or to
facilitate the commission of a violation of this chapter.
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[(b) Exceptions.--
(1) No property shall be forfeited under this section,
to the extent of the interest of an owner, by reason of any
act or omission established by the owner to have been
committed or omitted without the knowledge or consent of that
owner.
(2) No valid lien or encumbrance on real property shall
be subject to forfeiture or impairment under this paragraph.
A lien which is fraudulent or intended to avoid forfeiture
under this section shall be invalid.
(c) Process and seizure.--Property subject to forfeiture
under this chapter may be seized by the law enforcement
authority upon process issued by a court of common pleas having
jurisdiction over the property. Seizure without process may be
made if:
(1) the seizure is incident to an arrest or a search
warrant or inspection under 75 Pa.C.S. § 6308 (relating to
investigation by police officers) or any other administrative
inspection;
(2) the property subject to seizure has been the subject
of a proper judgment in favor of the Commonwealth in a
criminal injunction or forfeiture proceeding under this
chapter;
(3) there is probable cause to believe that the property
is dangerous to health or safety; or
(4) there is probable cause to believe that the property
has been used or is intended to be used in violation of this
chapter.
(d) Seizure without process.--In the event seizure without
process occurs as provided in this chapter, proceeding for the
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issuance thereof shall be instituted forthwith.
(e) Custody of property.--Property taken or detained under
this section shall not be subject to replevin but is deemed to
be in the custody of the law enforcement authority, subject only
to the orders and decrees of the court of common pleas having
jurisdiction over the forfeiture proceedings and of the district
attorney or the Office of Attorney General. When property is
seized under this chapter, the law enforcement authority shall
place the property under seal and either:
(1) remove the property to a place designated by it; or
(2) require that the district attorney or the Office of
Attorney General take custody of the property and remove it
to an appropriate location for disposition in accordance with
law.
(f) Use of property held in custody.--
(1) Whenever property is forfeited under this chapter,
the property shall be transferred to:
(i) the custody of the district attorney, if the law
enforcement authority seizing the property has local or
county jurisdiction; or
(ii) the Office of Attorney General, if the law
enforcement authority seizing the property has Statewide
jurisdiction.
(2) The district attorney or the Office of Attorney
General, where appropriate, may:
(i) Retain the property for official use.
(ii) Sell any forfeited property which is not
required to be destroyed by law and which is not harmful
to the public, but the proceeds from any such sale must
be used to pay all proper expenses of the proceeding for
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forfeiture and sale, including expenses of seizure,
maintenance of custody, advertising and court costs. The
balance of the proceeds shall be dealt with in accordance
with subsections (g) and (h).
(g) Use of cash, property or proceeds of property.--Cash or
proceeds of forfeited property transferred to the custody of the
district attorney under subsection (f) shall be placed in the
operating fund of the county in which the district attorney is
elected. The appropriate county authority shall immediately
release from the operating fund, without restriction, a like
amount for the use of the district attorney in enforcing the
criminal laws of this Commonwealth. The entity having budgetary
control shall not anticipate future forfeitures or proceeds from
such forfeitures in adoption and approval of the budget for the
district attorney.
(h) Distribution of property among law enforcement
authorities.--If both State and municipal law enforcement
authorities were substantially involved in effecting the
seizure, the court having jurisdiction over the forfeiture
proceedings shall equitably distribute the property between the
district attorney and the Office of Attorney General.
(i) Annual audit of forfeited property.--A county shall
provide, through the controller, board of auditors or other
appropriate auditor and the district attorney, an annual audit
of all forfeited property and proceeds obtained under this
section. The audit shall not be made public but shall be
submitted to the Office of Attorney General. The county shall
report all forfeited property and proceeds obtained under this
section and the disposition thereof to the Office of Attorney
General by September 30 of each year.
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(j) Annual report; confidential information regarding
property.--The Office of Attorney General shall annually submit
a report to the Appropriations Committee of the Senate, the
Appropriations Committee of the House of Representatives, the
Judiciary Committee of the Senate and the Judiciary Committee of
the House of Representatives specifying the forfeited property
or proceeds thereof obtained under this section. The report
shall give an account of all proceeds derived from the sale of
forfeited property and the use made of unsold forfeited
property. The Office of Attorney General shall adopt procedures
and guidelines governing the release of information by the
district attorney to protect the confidentiality of forfeited
property or proceeds used in ongoing enforcement activities.
(k) Proceeds and appropriations.--The proceeds or future
proceeds from forfeited property under this chapter shall be in
addition to any appropriation made to the Office of Attorney
General.] (a.1) Conduct of forfeiture.--Forfeiture of property
shall be authorized for violation of this chapter and conducted
in accordance with 42 Pa.C.S. §§ 5803 (relating to asset
forfeiture), 5805 (relating to forfeiture procedure), 5806
(relating to motion for return of property), 5807 (relating to
restrictions on use), 5807.1 (relating to prohibition on
adoptive seizures) and 5808 (relating to exceptions).
Section 7. Section 7708 of Title 18 is repealed:
[§ 7708. Procedure with respect to seized property subject to
liens and rights of lienholders.
(a) General procedure.--The proceedings for the forfeiture
or condemnation of property, the sale of which is provided for
under this chapter, shall be in rem in which the Commonwealth
shall be the plaintiff and the property the defendant. The
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Pennsylvania Rules of Civil Procedure shall apply to all
forfeiture proceedings brought under this chapter. A petition
shall be filed in the court of common pleas of the judicial
district where the property is located, verified by oath or
affirmation of an officer or citizen, containing the following:
(1) A description of the property seized.
(2) A statement of the time and place where seized.
(3) The owner, if known.
(4) The person or persons in possession, if known.
(5) An allegation that the property is subject to
forfeiture under section 7707 (relating to loss of property
rights to Commonwealth) and an averment of material facts
upon which the forfeiture action is based.
(6) A prayer for an order of forfeiture that the
property be adjudged forfeited to the Commonwealth and
condemned and be ordered sold according to law unless cause
be shown to the contrary.
(b) Notice to property owners.--A copy of the petition
required under subsection (a) shall be served personally or by
certified mail on the owner or upon the person or persons in
possession at the time of the seizure. The copy shall have
endorsed a notice as follows:
To the claimant of within described property: You are
required to file an answer to this petition, stating your
title in and right to possession of the property within 30
days from the service of this petition, and you are also
notified that, if you fail to file an answer, a decree of
forfeiture and condemnation will be entered against the
property.
The notice shall be signed by the Attorney General, Deputy
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Attorney General, district attorney, deputy district attorney or
assistant district attorney.
(c) Substitute notice.--
(1) If the owner of the property is unknown or there was
no person in possession of the property when seized or if the
owner or such person or persons in possession at the time of
the seizure cannot be personally served or located within the
jurisdiction of the court, notice of the petition shall be
given by the Commonwealth through an advertisement in only
one newspaper of general circulation published in the county
where the property was seized once a week for two successive
weeks. No other advertisement of any sort shall be necessary,
any other law to the contrary notwithstanding.
(2) The notice shall:
(i) contain a statement of the seizure of the
property with a description of the property and the place
and date of seizure; and
(ii) direct any claimants to the property to file a
claim on or before a date given in the notice, which date
shall not be less than 30 days from the date of the first
publication.
(3) If no claims are filed within 30 days of
publication, the property shall summarily forfeit to the
Commonwealth.
(d) Property owners not in jurisdiction.--For purposes of
this section, the owner or other such person cannot be found in
the jurisdiction of the court if:
(1) A copy of the petition is mailed to the last known
address by certified mail and is returned without a delivery.
(2) A personal service is attempted once but cannot be
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made at the last known address.
(3) A copy of the petition is left at the last known
address.
(e) Notice automatically waived.--
(1) The notice provisions of this section are
automatically waived when the owner, without good cause,
fails to appear in court in response to a subpoena on the
underlying criminal charges.
(2) Forty-five days after such a failure to appear, if
good cause has not been demonstrated, the property shall
summarily forfeit to the Commonwealth.
(f) Preservation of the property subject for forfeiture.--
(1) Upon application of the Commonwealth, the court may
enter a restraining order or injunction, require the
execution of a satisfactory performance bond or take any
other action to preserve the availability of property
described in section 7707 for forfeiture under this section
either:
(i) upon the filing of an information or an
indictment charging a violation of this chapter for which
criminal forfeiture may be ordered under this chapter and
alleging that the property with respect to which the
order is sought would be subject to forfeiture; or
(ii) prior to the filing of such an indictment or
information if, after notice to persons appearing to have
an interest in the property and an opportunity for a
hearing, the court determines that:
(A) There is a substantial probability that the
Commonwealth will prevail on the issue of forfeiture
and that failure to enter the order will result in
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the property being destroyed, removed from the
jurisdiction of the court or otherwise made
unavailable for forfeiture.
(B) The need to preserve the availability of the
property through the entry of the requested order
outweighs the hardship on any party against whom the
order is to be entered.
(2) An order entered under this subsection shall be
effective for not more than 90 days unless extended by the
court for good cause shown or unless an indictment or
information described in paragraph (1)(i) has been filed.
(g) Temporary restraining order.--
(1) A temporary restraining order under subsection (f)
may be entered upon application of the Commonwealth without
notice or opportunity for a hearing when an information or
indictment has not yet been filed with respect to the
property if the Commonwealth demonstrates that:
(i) there is probable cause to believe that the
property with respect to which the order is sought would
be subject to forfeiture under this chapter; and
(ii) the provision of notice will jeopardize the
availability of the property for forfeiture.
(2) Such temporary order shall expire not more than ten
days after the date on which it is entered, unless:
(i) extended for good cause shown; or
(ii) the party against whom it is entered consents
to an extension for a longer period.
(3) A hearing requested concerning an order entered
under this subsection shall be held at the earliest possible
time and prior to the expiration of the temporary order.
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(h) Hearing regarding property; rules of evidence.--The
court may receive and consider at a hearing held under
subsection (f) or (g) evidence and information that would be
inadmissible under the rules of evidence.
(i) Hearing time set.--Upon the filing of a claim for the
property setting forth a right of possession, the case shall be
deemed at issue, and a time shall be fixed for the hearing.
(j) Owner's burden of proof.--At the time of the hearing, if
the Commonwealth produces evidence that the property in question
was unlawfully used, possessed or otherwise subject to
forfeiture under section 7706 (relating to presumptions), the
burden shall be upon the claimant to show that:
(1) The claimant is the owner of the property or the
holder of a chattel mortgage or contract of conditional sale
thereon.
(2) The claimant lawfully acquired the property.
(3) It was not unlawfully used or possessed by the
claimant. In the event that it shall appear that the property
was unlawfully used or possessed by a person other than the
claimant, then the claimant must show that the unlawful use
or possession was without the claimant's knowledge or
consent. Such absence of knowledge or consent must be
reasonable under the circumstances presented.
(k) Court-ordered release of property.--
(1) If a person claiming the ownership of or right of
possession to or claiming to be the holder of a chattel
mortgage or contract of conditional sale upon the property,
the disposition of which is provided for in this section,
prior to the sale presents a petition to the court alleging
over the property lawful ownership, right of possession, a
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lien or reservation of title and if, upon public hearing, due
notice of which having been given to the Office of Attorney
General or the district attorney, the claimant proves by
competent evidence to the satisfaction of the court:
(i) that the property was lawfully acquired,
possessed and used by him; or
(ii) if it appears that the property was unlawfully
used by a person other than the claimant, that the
unlawful use was without the claimant's knowledge or
consent,
then the court may order the property returned or delivered
to the claimant.
(2) Such absence of knowledge or consent must be
reasonable under the circumstances presented. Otherwise, the
property shall be retained for official use or sold in
accordance with section 7707(f).]
Section 8. Section 927 of Title 30 is amended to read:
§ 927. Forfeiture of fish and devices.
(a) General rule.--A person convicted of an offense under
this title shall forfeit any fish seized under section [901(6)]
901(a)(6) (relating to powers and duties of waterways
[patrolmen] conservation officers and deputies) and any device
confiscated under this title. Forfeitures shall be conducted in
accordance with 42 Pa.C.S. §§ 5803 (relating to asset
forfeiture), 5805 (relating to forfeiture procedure), 5806
(relating to motion for return of property), 5807 (relating to
restrictions on use), 5807.1 (relating to prohibition on
adoptive seizures) and 5808 (relating to exceptions).
[(b) Disposition of confiscated property.--Any property
confiscated by the commission under this title shall be sold or
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otherwise disposed of by the executive director. These
dispositions shall be recorded on the books of the commission.]
Section 9. Title 42 is amended by adding a chapter to read:
CHAPTER 58
FORFEITURE OF ASSETS
Sec.
5801. Scope of chapter.
5802. Controlled substances forfeiture.
5803. Asset forfeiture.
5804. (Reserved).
5805. Forfeiture procedure.
5806. Motion for return of property.
5806.1. (Reserved).
5806.2. (Reserved).
5807. Restrictions on use.
5807.1. Prohibition on adoptive seizures.
5807.2. Federal reporting requirements.
5808. Exceptions.
§ 5801. Scope of chapter.
This chapter relates to asset forfeiture.
§ 5802. Controlled substances forfeiture.
The following shall be subject to forfeiture to the
Commonwealth and no property right shall exist in them:
(1) All drug paraphernalia, controlled substances or
other drugs which have been manufactured, distributed,
dispensed or acquired in violation of the act of April 14,
1972 (P.L.233, No.64), known as The Controlled Substance,
Drug, Device and Cosmetic Act.
(2) All raw materials, products and equipment of any
kind which are used or intended for use in manufacturing,
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compounding, processing, delivering, importing or exporting
any controlled substance or other drug in violation of The
Controlled Substance, Drug, Device and Cosmetic Act.
(3) All property which is used or intended for use as a
container for property described in paragraph (1) or (2).
(4) All conveyances, including aircraft, vehicles or
vessels, which are used or are intended for use to transport,
or in any manner to facilitate the transportation, sale,
receipt, possession or concealment of property described in
paragraph (1) or (2), except that:
(i) no bona fide security interest retained or
acquired under 13 Pa.C.S. (relating to commercial code)
by any merchant dealing in new or used aircraft, vehicles
or vessels, or retained or acquired by any licensed or
regulated finance company, bank or lending institution,
or by any other business regularly engaged in the
financing or lending on the security of such aircraft,
vehicles or vessels, shall be subject to forfeiture or
impairment; and
(ii) no conveyance shall be forfeited under this
chapter for a violation of section 13(a)(31) of The
Controlled Substance, Drug, Device and Cosmetic Act.
(5) All books, records and research, including formulas,
microfilm, tapes and data, which are used or intended for use
in violation of The Controlled Substance, Drug, Device and
Cosmetic Act.
(6) (i) All of the following:
(A) Money, negotiable instruments, securities or
other things of value furnished or intended to be
furnished by any person in exchange for a controlled
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substance in violation of The Controlled Substance,
Drug, Device and Cosmetic Act, and all proceeds
traceable to such an exchange.
(B) Money, negotiable instruments, securities or
other things of value used or intended to be used to
facilitate any violation of The Controlled Substance,
Drug, Device and Cosmetic Act.
(C) Real property used or intended to be used to
facilitate any violation of The Controlled Substance,
Drug, Device and Cosmetic Act other than a violation
of section 13(a)(16) or (31) of The Controlled
Substance, Drug, Device and Cosmetic Act, including
structures or other improvements thereon, and
including any right, title and interest in the whole
or any lot or tract of land and any appurtenances or
improvements, which is used or intended to be used in
any manner or part to commit or to facilitate the
commission of a violation of The Controlled
Substance, Drug, Device and Cosmetic Act, and things
growing on, affixed to and found in the land.
(ii) The money and negotiable instruments found in
close proximity to controlled substances possessed in
violation of The Controlled Substance, Drug, Device and
Cosmetic Act shall be rebuttably presumed to be proceeds
derived from the selling of a controlled substance in
violation of The Controlled Substance, Drug, Device and
Cosmetic Act.
(iii) No valid lien or encumbrance on real property
shall be subject to forfeiture or impairment under this
paragraph. A lien which is fraudulent or intended to
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avoid forfeiture under this chapter shall be invalid.
(7) Any firearms, including, but not limited to, rifles,
shotguns, pistols, revolvers, machine guns, zip guns or any
type of prohibited offensive weapon, as that term is defined
in 18 Pa.C.S. § 6105 (relating to persons not to possess,
use, manufacture, control, sell or transfer firearms), which
are used or intended for use to facilitate a violation of The
Controlled Substance, Drug, Device and Cosmetic Act. Firearms
as are found in close proximity to illegally possessed
controlled substances shall be rebuttably presumed to be used
or intended for use to facilitate a violation of The
Controlled Substance, Drug, Device and Cosmetic Act. All
weapons forfeited under this chapter shall be immediately
destroyed by the receiving law enforcement agency.
§ 5803. Asset forfeiture.
(a) Applicability.--Notwithstanding any law to the contrary,
this section shall apply to forfeitures conducted under the
following:
(1) 4 Pa.C.S. § 1518 (relating to prohibited acts;
penalties).
(2) 18 Pa.C.S. § 910 (relating to manufacture,
distribution, use or possession of devices for theft of
telecommunications services).
(3) 18 Pa.C.S. § 2717 (relating to terrorism).
(4) 18 Pa.C.S. § 3141 (relating to general rule).
(5) 18 Pa.C.S. § 4116 (relating to copying; recording
devices).
(6) 18 Pa.C.S. § 4119 (relating to trademark
counterfeiting).
(7) 18 Pa.C.S. § 5513 (relating to gambling devices,
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gambling, etc.).
(8) 18 Pa.C.S. § 5707 (relating to seizure and
forfeiture of electronic, mechanical or other devices).
(9) 18 Pa.C.S. § 6501 (relating to scattering rubbish).
(10) 18 Pa.C.S. § 7707 (relating to loss of property
rights to Commonwealth).
(11) 30 Pa.C.S. § 927 (relating to forfeiture of fish
and devices).
(12) Section 5802 (relating to controlled substances
forfeiture).
(13) 75 Pa.C.S. § 4909 (relating to transporting
foodstuffs in vehicles used to transport waste).
(14) 75 Pa.C.S. § 9405 (relating to forfeitures; process
and procedures).
(b) Process and seizure of money and personal property.--
Property subject to forfeiture may be seized by a law
enforcement authority if any of the following apply:
(1) The seizure is incident to an arrest or a search
under a search warrant or inspection under an administrative
inspection warrant and there is reason to believe the
property is subject to forfeiture.
(2) The property subject to seizure has been the subject
of a prior judgment in favor of the Commonwealth in a
criminal injunction or forfeiture proceeding under this
chapter.
(3) There is probable cause to believe that the property
is dangerous to health and safety and exigencies are likely
to result in the destruction or removal of the property or in
the property otherwise being made unavailable for forfeiture.
(4) There is probable cause to believe that the property
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has been used or is intended to be used in violation of the
act of April 14, 1972 (P.L.233, No.64), known as The
Controlled Substance, Drug, Device and Cosmetic Act, or
another offense for which forfeiture is expressly authorized
as a sanction.
(5) There is a warrant issued by a court of common pleas
with appropriate jurisdiction.
(6) There is probable cause to believe that the property
is subject to forfeiture and exigencies are likely to result
in the destruction or removal of the property.
(b.1) Process and seizure of real property.--Real property
subject to forfeiture under this chapter may be seized by the
law enforcement authority upon process issued by a court of
common pleas having jurisdiction over the property. Except as
provided under this section, real property subject to forfeiture
shall not be seized before the entry of an order of forfeiture
and the owners or occupants of the real property shall not be
evicted from or otherwise deprived of the use and enjoyment of
real property that is the subject of a pending forfeiture
action. The following shall apply:
(1) The filing of a lis pendens or the issuance of a
temporary restraining order shall not constitute a seizure
under this subsection.
(2) Real property may be seized prior to the entry of an
order of forfeiture if:
(i) the district attorney or the Attorney General
notifies the court that it intends to seize the property
before a trial; and
(ii) the court:
(A) after causing notice to be served on the
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property owner and posted on the property and
conducting a hearing in which the property owner has
a meaningful opportunity to be heard, authorizes such
seizure; or
(B) makes an ex parte determination that there
is probable cause to believe that a nexus exists
between the property and the criminal activity for
which forfeiture is authorized and that exigent
circumstances are presented that permit the district
attorney or the Attorney General to seize the
property without prior notice and an opportunity for
the property owner to be heard.
(3) For purposes of paragraph (2)(ii)(B), exigent
circumstances are presented where the district attorney or
the Attorney General demonstrates that less restrictive
measures, such as a lis pendens, temporary restraining order
or security bond, would not suffice to protect the
Commonwealth's interest in preventing the sale, destruction
or continued unlawful use of the real property.
(4) If the court authorizes a seizure of real property
under paragraph (2)(ii)(B), it shall conduct a prompt
postseizure hearing at which the claimant shall have an
opportunity to contest the Commonwealth's continuing custody
of the property.
(c) Issuance of process.--If seizure without process occurs
under subsection (b) or (b.1), proceedings for the issuance of
process shall be instituted as soon as feasible.
(d) Custody of property.--Property taken or detained under
this section shall not be subject to replevin and is deemed to
be in the custody of the law enforcement authority subject only
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to the orders and decrees of the court of common pleas having
jurisdiction over the forfeiture proceedings of the district
attorney or the Attorney General. When property is seized under
this chapter, the law enforcement authority shall place the
property in a secure area or facility and either:
(1) remove the property to a secure area or facility
designated by the law enforcement authority; or
(2) require that the district attorney or Attorney
General take custody of the property and remove the property
to an appropriate location for disposition in accordance with
law.
(e) Receipt.--When property is seized, the law enforcement
authority shall provide a receipt to the person in possession of
the property or, in the absence of a person, leave a receipt in
the place where the property was found, if reasonably possible.
The receipt shall provide notice of the right of interest
holders to seek the return of the seized property under this
chapter. This section shall not apply if law enforcement is
otherwise required to provide a receipt for the property.
(f) Use of property held in custody.--When property is
forfeited under this chapter, the property shall be transferred
to the custody of the district attorney, if the law enforcement
authority seizing the property has local or county jurisdiction,
or the Attorney General, if the law enforcement authority
seizing the property has Statewide jurisdiction. The district
attorney or the Attorney General, where appropriate, may:
(1) retain the property for official use; or
(2) sell any forfeited property which is not required to
be destroyed by law and which is not harmful to the public,
except that the proceeds from the sale shall be used to pay
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all proper expenses of the proceedings for forfeiture and
sale, including expenses of seizure, maintenance of custody,
advertising and court costs. The balance of the proceeds
shall be used and distributed in accordance with this
chapter.
(f.1) Prohibited sales.--Sale of forfeited property to an
employee of the district attorney or Attorney General, an
individual related to an employee by blood or marriage or an
employee of another law enforcement authority is prohibited.
(g) Use of cash or proceeds of property.--Cash or proceeds
of property, subject to forfeiture under section 5802 and
transferred to the custody of the district attorney under
subsection (f) shall be placed in the operating fund of the
county in which the district attorney is elected. The
appropriate county authority shall immediately release from the
operating fund, without restriction, a like amount for the use
of the district attorney for the enforcement of or prevention of
a violation of the provisions of The Controlled Substance, Drug,
Device and Cosmetic Act. The funds shall be maintained in an
account or accounts separate from other revenues of the office.
The entity having budgetary control shall not anticipate future
forfeitures or proceeds from future forfeitures in adoption and
approval of the budget for the district attorney.
(h) Distribution of property among law enforcement
authorities.--If both State and municipal law enforcement
authorities were substantially involved in effecting the
seizure, the court having jurisdiction over the forfeiture
proceedings shall equitably distribute the property between the
district attorney and the Attorney General.
(i) Authorization to utilize property.--Cash or proceeds of
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property subject to forfeiture under section 5802 and
transferred to the custody of the district attorney or Attorney
General under subsection (f) shall be utilized by the district
attorney or Attorney General for the enforcement of or
prevention of a violation of the provisions of The Controlled
Substance, Drug, Device and Cosmetic Act. In appropriate cases,
the district attorney and the Attorney General may designate
proceeds from the forfeited property to be utilized by
community-based drug and crime-fighting programs and for
relocation and protection of witnesses in criminal cases. Real
property may be transferred to a nonprofit organization to
alleviate blight resulting from violations of The Controlled
Substance, Drug, Device and Cosmetic Act.
(j) Annual audit of forfeited property.--Every county in
this Commonwealth shall provide, through the controller, board
of auditors or other appropriate auditor and the district
attorney, an annual audit of all forfeited property and proceeds
obtained under this chapter. The audit shall not be made public
but shall be submitted to the Office of Attorney General. By
September 30 of each year, the county shall report all forfeited
property and proceeds obtained under this chapter and the
disposition of the property during the preceding year to the
Attorney General. The Attorney General and each district
attorney shall maintain and create appropriate records to
account for the property forfeited in a fiscal year and the use
made of the property forfeited. Each audit shall include:
(1) The type of property forfeited.
(2) The approximate value.
(3) The alleged criminal behavior with which the
property is associated.
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(4) The disposition or use of property received.
(5) Whether the forfeiture was related to a criminal
case.
(1) DATE PROPERTY WAS SEIZED.
(2) THE TYPE OF PROPERTY SEIZED.
(3) WHERE PROPERTY WAS SEIZED.
(4) THE APPROXIMATE VALUE.
(5) THE ALLEGED CRIMINAL BEHAVIOR WITH WHICH THE
PROPERTY IS ASSOCIATED.
(6) THE DISPOSITION OR USE OF PROPERTY RECEIVED.
(7) WHETHER THE FORFEITURE WAS RELATED TO A CRIMINAL
CASE AND THE OUTCOME OF THE CRIMINAL CASE.
(8) DATE OF FORFEITURE DECISION.
(k) Annual report and confidential information.--The
Attorney General shall annually submit a report to the
Appropriations Committee and Judiciary Committee of the Senate
and to the Appropriations Committee and Judiciary Committee of
the House of Representatives specifying the forfeited property
or proceeds of the forfeited property obtained under this
chapter during the fiscal year beginning July 1 and the
following shall apply:
(1) The report shall include all information required
under subsection (j) subject to the limitations provided
under paragraph (2).
(2) The Attorney General shall adopt procedures and
guidelines, which shall be public, governing the release of
information by the Attorney General or the district attorney
to protect the confidentiality of forfeited property or
proceeds used in ongoing law enforcement activities.
(k.1) Reporting.--By November 30 of each year, the Office of
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Attorney General shall notify the Appropriations Committee and
Judiciary Committee of the Senate and the Appropriations
Committee and Judiciary Committee of the House of
Representatives of any county which has not submitted an audit
and complied with the requirements in subsection (j).
(l) Proceeds and appropriations.--The proceeds or future
proceeds from forfeited property under this chapter shall be in
addition to any appropriation made to the Office of Attorney
General. The Attorney General shall maintain proceeds from
property forfeited to the Office of Attorney General in an
account or accounts separate from any other account maintained
by the Office of Attorney General.
§ 5804. (Reserved).
§ 5805. Forfeiture procedure.
(a) General procedure.--The proceedings for the forfeiture
or condemnation of property, the sale of which is provided for
in this chapter, shall be in rem, in which the Commonwealth
shall be the plaintiff and the property the defendant. A
forfeiture petition signed by the Attorney General, deputy
attorney general, district attorney or assistant district
attorney shall be filed in the court of common pleas of the
judicial district where the property is seized or located,
verified by oath or affirmation of an officer. If criminal
charges have been filed and a prosecution is pending, the
petition shall be filed in the same judicial district as the
criminal charges in all instances except those involving real
property. Each petition relating to real property shall be filed
in the jurisdiction where the real property is located.
(1) Each forfeiture petition shall contain the
following:
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(i) A description of the property actually seized or
constructively seized, including, but not limited to, if
known, the address of any real property, the exact dollar
amount of any United States currency, or the approximate
value of any negotiable instrument or security and the
make, model, year and license plate number of any
vehicle.
(ii) A statement of the time and place where seized.
(iii) The owner, if known.
(iv) The person or persons in possession at the time
of seizure, if known.
(v) An allegation that the property is subject to
forfeiture and an averment of material facts supporting
the forfeiture action.
(vi) A prayer for an order of forfeiture that the
property be adjudged forfeited to the Commonwealth unless
cause is shown to the contrary.
(2) The following shall apply:
(i) A claimant shall file an answer setting forth a
right of possession of the property within 30 days of
service of the forfeiture petition. The answer shall be
in writing and filed to the docket number in the court of
common pleas and shall be signed by the claimant or the
claimant's attorney.
(ii) The following shall apply:
(A) Prior to filing an answer to a forfeiture
petition, a claimant may file a motion to stay the
forfeiture proceedings if the claimant has been
criminally charged in a case associated with the
forfeiture matter. If the motion is properly filed,
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it shall be granted.
(B) The claimant shall have 30 days from the
date the stay is lifted to file an answer in
accordance with this paragraph.
(3) After the answer is filed, the parties shall be
permitted to conduct discovery.
(b) Notice to property owners.--
(1) A copy of the forfeiture petition required under
subsection (a) shall be served personally or by certified
mail on the owner, if known, and on each person in possession
at the time of the seizure, if known. The copy shall have
endorsed a notice, as follows:
To the claimant of within described property:
You are required to file an answer to this petition,
setting forth your title in, and right to possession of,
said property within 30 days from the service hereof, and
you are also notified that, if you fail to file the
answer, a decree of forfeiture and condemnation will be
entered against the property.
(2) The notice under paragraph (1) must be signed by the
Attorney General, deputy attorney general, district attorney,
deputy district attorney or assistant district attorney and
contain accurate contact information for the signatory.
(c) Substitute notice.--
(1) If the owner of the property is unknown, there was
no person in possession of the property when seized or the
owner or each person in possession at the time of the seizure
cannot be personally served or located within the
jurisdiction of the court, notice of the petition shall be
given by the Commonwealth through an advertisement in at
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least one newspaper of general circulation published in the
county where the property has been seized, once a week for
two successive weeks.
(2) Notwithstanding any other law, no other
advertisement shall be necessary.
(3) The notice shall contain a statement of the seizure
of the property with a description of the property and the
place and date of seizure and shall direct any claimants to
the property to file a claim on or before a date given in the
notice, which shall not be less than 30 days from the date of
the first publication.
(4) If no claims are filed within 30 days of
publication, the Commonwealth may move for default judgment.
(d) Property owners not in jurisdiction.--For purposes of
this section, the owner or other person cannot be found in the
jurisdiction of the court if:
(1) a copy of the petition is mailed to the last known
address by certified mail and is returned without delivery;
(2) personal service is attempted once, but cannot be
made at the last known address; and
(3) a copy of the petition is left at the last known
address unless the address does not exist.
(d.1) Proof of notice.--The Commonwealth shall file proof of
notice with the court. Forfeiture shall not be ordered if the
court finds that proof does not exist that the notice
requirements contained under subsections (b), (c) and (d), if
applicable, have been met.
(e) Notice automatically waived.--The notice provisions of
this section shall be automatically waived if the owner, without
good cause, fails to appear in court in response to a subpoena
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and a bench warrant is issued on the underlying criminal
charges. If good cause has not been demonstrated, the
Commonwealth may move for default judgment.
(f) Release of seized property pending conclusion of
proceedings.--
(1) A claimant to property subject to forfeiture is
permitted to seek the immediate release of seized property
if:
(i) the claimant has a possessory interest in the
property;
(ii) the claimant has sufficient ties to the
community to provide assurance that the property will be
available at the time of the trial;
(iii) the continued possession by the Commonwealth
pending the final disposition of forfeiture proceedings
will cause substantial hardship to the claimant, such as
preventing the functioning of a legitimate business,
preventing the claimant from working or leaving the
claimant homeless;
(iv) the claimant's likely hardship from the
continued possession by the Commonwealth of the seized
property outweighs the risk that the property will be
destroyed, damaged, lost, concealed or transferred if the
property is returned to the claimant during the pendency
of the forfeiture proceeding; and
(v) none of the conditions under paragraph (6)
apply.
(2) The following shall apply:
(i) The claimant under paragraph (1) may file a
motion in the court of common pleas in which the
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forfeiture petition has been filed or, if no forfeiture
petition has been filed, in the court of common pleas in
the jurisdiction in which the property was seized. The
motion shall be served upon the district attorney or
Attorney General who has jurisdiction over the case.
(ii) The motion described in this subsection shall
set forth the basis on which the requirements of
paragraph (1) have been met.
(3) If the Commonwealth establishes that the claimant's
motion is meritless, the court shall deny the motion. In
response to a motion under this subsection, the Commonwealth
may, in appropriate cases, submit evidence ex parte in order
to avoid disclosing any matter that may adversely affect an
ongoing criminal investigation or pending criminal trial.
(4) The following shall apply:
(i) The court shall order that the property be
returned to the claimant pending completion of the
forfeiture proceeding if:
(A) a motion is filed under paragraph (2); and
(B) following a hearing, the claimant has
demonstrated that the requirements of paragraph (1)
have been met.
(ii) If the motion addresses currency, monetary
instruments or electronic funds, the claimant must
establish by a preponderance of the evidence a documented
and noncriminal source of the currency, monetary
instrument or electronic fund. The requirement under this
subparagraph shall be in addition to the requirements
under subparagraph (i).
(5) If the court grants a motion under paragraph (4):
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(i) the court may enter any order necessary to
ensure that the value of the property is maintained while
the forfeiture action is pending, including:
(A) permitting the inspection, photographing and
the taking of inventory of the property;
(B) fixing a bond; and
(C) requiring the claimant to obtain or maintain
insurance on the subject property;
(ii) the Commonwealth may place a lien against the
property or file a lis pendens to ensure that the
property is not transferred to another person; and
(iii) if the property in question is currency,
monetary instruments or electronic funds, the court shall
fix a bond as provided under paragraph (5.1).
(5.1) For the purposes of paragraph (5)(iii), the
following shall apply to the fixing of a bond sufficient to
secure the value of the currency, monetary instruments or
electronic funds:
(i) If the value of the currency, monetary
instruments or electronic funds is less than $2,000, the
court may order the fixing of a bond.
(ii) If the value of the currency, monetary
instruments or electronic funds is at least $2,000, but
less than $5,000, the court may order the fixing of a
bond. If the court finds that the claimant has not
demonstrated his or her ability to ensure the
availability of the currency at the time of the
forfeiture trial, the court shall order the fixing of a
bond.
(iii) If the value of the currency, monetary
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instruments or electronic funds is $5,000 or more, the
court shall order the fixing of a bond.
(6) This subsection shall not apply if the seized
property:
(i) is contraband;
(ii) is evidence which shall include, but not be
limited to, proceeds from a violation of law;
(iii) by reason of design or other characteristic,
is particularly suited for use in illegal activities; or
(iv) is likely to be used to commit additional
criminal acts if returned to the claimant.
(7) A party to a proceeding under this subsection shall
not be estopped from raising in any other proceeding any
claim or issue presented to or decided by the court under
this subsection.
(g) (Reserved).
(h) (Reserved).
(i) Trial time.--On the filing of an answer setting forth a
right of possession, the case shall be deemed at issue and a
time shall be fixed for the trial. A judicial district shall not
require the parties to proceed through local rules of
arbitration.
(j) Burden of proof.--
(1) The burden shall be on the Commonwealth to establish
in the forfeiture petition that the property is subject to
forfeiture.
(2) If the Commonwealth satisfies the burden under
paragraph (1), the burden shall be on the claimant to show by
a preponderance of the evidence that:
(i) the claimant is the owner of the property or the
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holder of a chattel mortgage or contract of conditional
sale on the property or holds some other documented
interest in the property; and
(ii) the claimant lawfully acquired the property.
(3) If the claimant satisfies the burden under paragraph
(2), the burden shall be on the Commonwealth to establish by
clear and convincing evidence that the property in question
was unlawfully used, possessed or otherwise subject to the
forfeiture.
(4) If the Commonwealth satisfies the burden under
paragraph (3) and the claimant alleges that he did not have
knowledge of the unlawful activity or consent to the unlawful
activity, the burden shall be on the Commonwealth to
establish by clear and convincing evidence:
(i) that the property was unlawfully used or
possessed by the claimant; or
(ii) if it appears that the property was unlawfully
used or possessed by a person other than the claimant,
that the person unlawfully used or possessed the property
with the claimant's knowledge and consent.
(k) Proportionality.--
(1) If the court determines that the forfeiture petition
shall be granted, the claimant, prior to entry of an order of
forfeiture, may petition the court to determine whether the
forfeiture is constitutionally excessive.
(2) If the court finds that the forfeiture is grossly
disproportional to the offense, the court shall reduce or
eliminate the forfeiture as necessary to avoid a
constitutional violation.
(l) Disclaimed property.--A defendant in a criminal case who
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disclaims ownership of property during the criminal case may not
claim ownership during a subsequent forfeiture proceeding.
(m) Procedure following acquittal.--The following shall
apply:
(1) If the owner of the property is acquitted of all
crimes which authorize forfeiture, there shall be a
rebuttable presumption that the property was lawfully used or
possessed by the claimant.
(2) If the owner of the property is acquitted of all
crimes which authorize forfeiture, the owner shall be
entitled to a hearing under section 5806 (relating to motion
for return of property).
(3) If the forfeiture petition relating to the property
at issue has already been litigated, this section shall not
apply.
(4) As used in this subsection, the term "acquittal"
shall not include plea agreements, acceptance of Accelerated
Rehabilitative Disposition or any other form of preliminary
disposition.
§ 5806. Motion for return of property.
(a) Motion.--The following shall apply:
(1) A person aggrieved by a search and seizure may move
for the return of the property seized by filing a motion in
the court of common pleas in the judicial district where the
property is located.
(2) The filer under paragraph (1) must serve the
Commonwealth.
(3) Upon proof of service, the court shall schedule a
prompt hearing on the motion and shall notify the
Commonwealth. A hearing on the motion shall, to the extent
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practicable and consistent with the interests of justice, be
held within 30 days of the filing of the motion.
(4) The assigned judge may require the filing of an
answer.
(5) If a forfeiture petition was filed by the
Commonwealth before the filing of a motion for return of
property, the motion shall be assigned to the same judge for
disposition, as practicable.
(b) Contents of motion.--A motion under this section shall:
(1) Be signed by the petitioner under penalty of
perjury.
(2) Describe the nature and extent of the petitioner's
right, title or interest in the property, the time and
circumstances of the petitioner's acquisition of the right,
title or interest in the property and any additional facts
supporting the petitioner's claim. The information shall
include:
(i) A description of the property seized.
(ii) A statement of the time and place where seized,
if known.
(iii) The owner, if known.
(iv) The person in possession, if known.
(3) Identify the relief sought, which may include:
(i) Return of the petitioner's property.
(ii) Reimbursement for the petitioner's legal
interest in the property.
(iii) Severance of the petitioner's property from
the forfeited property.
(iv) Any relief the court deems appropriate and
just.
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§ 5806.1. (Reserved).