SENATE AMENDED
PRIOR PRINTER'S NOS. 1505, 2695, 2750, PRINTER'S NO. 3147
2969
No. 1308 Session of 1987
INTRODUCED BY DAWIDA, PRESTON, ITKIN, SEVENTY, FLICK, LINTON,
MERRY, JOSEPHS, KENNEY AND TELEK, MAY 5, 1987
AS AMENDED ON THIRD CONSIDERATION, IN SENATE, APRIL 18, 1988
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, further providing for the
3 cost of certain journals published for district justices;
4 providing a statute of limitations regarding the institution
5 of lawsuits against professional land surveyors and landscape
6 architects; providing for affidavit of noninvolvement for
7 construction design professionals; and further providing for <--
8 CORPORATE DIRECTORS' LIABILITY AND FOR probation; AND <--
9 PROVIDING FOR FORFEITURES, FOR PROPERTY SUBJECT TO FORFEITURE
10 AND FOR THE PROCEDURE WITH RESPECT TO SEIZED PROPERTY.
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. Section 3532 of Title 42 of the Pennsylvania
14 Consolidated Statutes is amended to read:
15 § 3532. Expenses.
16 The Office of the Pennsylvania Supreme Court Administrator
17 shall pay the annual registration fee [up to $100] of $150 to
18 the Special Court Judges of Pennsylvania Association for each
19 district justice, Philadelphia Municipal Court Judge and
20 Philadelphia Traffic Court Judge position authorized as of
1 January 31 of each year. Payment shall be made on the first day
2 of a new fiscal year including July 1, [1982] 1988. In addition <--
3 the Office of the Pennsylvania Supreme Court Administrator shall
4 pay [up to $10,000] the annual cost for the publishing of a
5 monthly journal containing the update and revision of laws and
6 State Supreme Court rule changes. [Funding] Except for the
7 funding of the publication of the monthly journal which shall be
8 a direct cost of the Office of the Pennsylvania Supreme Court
9 Administrator, all other funding for the other expenses set
10 forth in this section shall come from the annual appropriation
11 made to the district justices.
12 SECTION 2. CHAPTER 37 OF TITLE 42 IS AMENDED BY ADDING A <--
13 SUBCHAPTER TO READ:
14 CHAPTER 37
15 FACILITIES AND SUPPLIES
16 * * *
17 SUBCHAPTER C
18 JUDICIAL COMPUTER SYSTEM
19 SEC.
20 3731. ESTABLISHMENT OF RESTRICTED RECEIPT ACCOUNT.
21 3732. UTILIZATION OF FUNDS IN ACCOUNT.
22 3733. DEPOSITS INTO ACCOUNT.
23 3734. ANNUAL APPROPRIATIONS.
24 3735. REVIEW OF PLAN AND CONTRACTS.
25 § 3731. ESTABLISHMENT OF RESTRICTED RECEIPT ACCOUNT.
26 THERE IS HEREBY ESTABLISHED WITHIN THE GENERAL FUND A
27 RESTRICTED RECEIPT ACCOUNT TO BE KNOWN AS THE JUDICIAL COMPUTER
28 SYSTEM AUGMENTATION ACCOUNT.
29 § 3732. UTILIZATION OF FUNDS IN ACCOUNT.
30 (A) GENERAL RULE.--EXCEPT FOR THE REPAYMENTS UNDER
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1 SUBSECTION (B), ALL MONEYS DEPOSITED INTO THE JUDICIAL COMPUTER
2 SYSTEM AUGMENTATION ACCOUNT SHALL BE USED ONLY FOR THE INITIAL
3 START-UP AND THE ONGOING OPERATIONS OF THE STATEWIDE JUDICIAL
4 COMPUTER SYSTEM.
5 (B) GENERAL FUND REPAYMENTS.--ANY FUNDS APPROPRIATED BY THE
6 GENERAL ASSEMBLY FROM THE GENERAL FUND FOR THE START-UP AND
7 OPERATION OF THE STATEWIDE JUDICIAL COMPUTER SYSTEM SHALL BE
8 REPAID TO THE GENERAL FUND FROM THE JUDICIAL COMPUTER SYSTEM
9 AUGMENTATION ACCOUNT OVER A FIVE-YEAR PERIOD BEGINNING 24 MONTHS
10 AFTER THE INITIAL APPROPRIATION FROM THE GENERAL FUND.
11 § 3733. DEPOSITS INTO ACCOUNT.
12 (A) GENERAL RULE.--BEGINNING JULY 1, 1987, AND THEREAFTER,
13 THE TOTAL OF ALL FINES, FEES AND COSTS COLLECTED BY ANY DIVISION
14 OF THE UNIFIED JUDICIAL SYSTEM WHICH ARE IN EXCESS OF THE AMOUNT
15 COLLECTED FROM SUCH SOURCES IN THE FISCAL YEAR 1986-1987 SHALL
16 BE DEPOSITED IN THE JUDICIAL COMPUTER SYSTEM AUGMENTATION
17 ACCOUNT. ANY FINES, FEES OR COSTS WHICH ARE ALLOCATED BY LAW OR
18 OTHERWISE DIRECTED TO COUNTIES AND MUNICIPALITIES, TO THE CRIME
19 VICTIM'S COMPENSATION BOARD, TO THE COMMISSION ON CRIME AND
20 DELINQUENCY FOR VICTIM-WITNESS SERVICES GRANTS UNDER SECTION
21 477.15(C) OF THE ACT OF APRIL 9, 1929 (P.L.177, NO.175), KNOWN
22 AS THE ADMINISTRATIVE CODE OF 1929, TO RAPE CRISIS CENTERS, TO
23 THE EMERGENCY MEDICAL SERVICES OPERATING FUND OR TO DOMESTIC
24 VIOLENCE SHELTERS SHALL NOT BE AFFECTED BY THIS SUBCHAPTER.
25 (B) LIMITATION ON TOTAL AMOUNT IN ACCOUNT.--UNTIL JULY 1,
26 1994, THE TOTAL AMOUNT OF FUNDS ANNUALLY DEPOSITED INTO THE
27 JUDICIAL COMPUTER SYSTEM AUGMENTATION ACCOUNT SHALL NOT EXCEED
28 $20,000,000 PER YEAR. FOR THE PERIOD JULY 1, 1994, AND
29 THEREAFTER, THE TOTAL AMOUNT OF FUNDS ANNUALLY DEPOSITED INTO
30 THE JUDICIAL COMPUTER SYSTEM AUGMENTATION ACCOUNT SHALL NOT
19870H1308B3147 - 3 -
1 EXCEED $10,000,000 PER YEAR. ALL MONEYS IN EXCESS OF THESE
2 AMOUNTS SHALL BE DEPOSITED INTO THE APPROPRIATE FUNDS DESIGNATED
3 BY LAW.
4 § 3734. ANNUAL APPROPRIATIONS.
5 BEGINNING WITH THE FISCAL YEAR 1987-1988, THE GENERAL
6 ASSEMBLY SHALL APPROPRIATE INITIALLY FROM THE GENERAL FUND AND
7 THEREAFTER FROM THE JUDICIAL COMPUTER SYSTEM AUGMENTATION
8 ACCOUNT FUNDS SUFFICIENT TO MEET THE COSTS OF THE INITIAL START-
9 UP AND THE ONGOING OPERATIONS OF THE STATEWIDE JUDICIAL COMPUTER
10 SYSTEM.
11 § 3735. REVIEW OF PLAN AND CONTRACTS.
12 A COPY OF THE PLAN FOR EXPENDITURE OF APPROPRIATED FUNDS AND
13 A COPY OF EACH CONTRACT PRIOR TO EXECUTION SHALL BE SUBMITTED TO
14 THE RESPECTIVE CHAIRMEN OF THE MAJORITY AND MINORITY
15 APPROPRIATIONS COMMITTEES IN THE HOUSE OF REPRESENTATIVES AND
16 THE SENATE ALLOWING A REASONABLE TIME FOR THEIR REVIEW AND
17 COMMENT.
18 Section 2 3. Title 42 is amended by adding sections to read: <--
19 § 5537. Land surveying.
20 All actions to recover any or all damages against any person
21 engaged in the practice of land surveying occurring as the
22 result of any deficiency, defect, omission, error or
23 miscalculation shall be commenced within 21 years from the time
24 the services are performed. Any such action not commenced within
25 this 21-year period shall be forever barred. The cause of action
26 in such cases shall accrue when the services are performed.
27 Furthermore, any action shall be commenced within four years
28 from the time that such cause of action was discovered, but no
29 later than during this 21-year limitation period. In any event,
30 no action shall be commenced after the 21 years from the time
19870H1308B3147 - 4 -
1 that the services are performed. The term "practice of land
2 surveying" shall be the same as defined under the act of May 23,
3 1945 (P.L.913, No.367), known as the Professional Engineers
4 Registration Law.
5 § 5538. Landscape architecture.
6 (a) General rule.--All actions to recover any or all damages
7 against any person engaged in the practice of landscape
8 architecture occurring as the result of any deficiency defect,
9 omission, error or miscalculation shall be commenced within 12
10 years from the time the services are performed. Any such action
11 not commenced within this 12-year period shall be forever
12 barred. The cause of action shall accrue upon substantial
13 completion of the project. Nothing in this section shall be
14 construed as extending the period prescribed by the laws of this
15 Commonwealth for the bringing of any action. The term "practice
16 of landscape architecture" shall be the same as defined in the
17 act of January 24, 1966 (1965 P.L.1527, No.535), known as the
18 Landscape Architects' Registration Law.
19 (b) Exception.--The limitation prescribed by subsection (a)
20 shall not be asserted by way of defense by any person in actual
21 possession or control, as owner, tenant or otherwise, of such an
22 improvement at the time any deficiency in such an improvement
23 constitutes the proximate cause of the injury or wrongful death
24 for which it is proposed to commence an action or proceeding.
25 § 7502. Affidavit of noninvolvement.
26 (a) Dismissal by affidavit.--In any action for negligence,
27 any construction design professional who is retained to perform
28 professional services on a construction project may have the
29 action against such construction design professional dismissed
30 upon the filing of an affidavit of noninvolvement.
19870H1308B3147 - 5 -
1 (b) Tolling statute.--The filing of such affidavit shall
2 have the effect of tolling the statute of limitations as to the
3 affiant with respect to the claim at issue.
4 (c) Reinstatement.--If the court determines that the
5 statements made in any affidavit filed under subsection (a) are
6 inaccurate, the court shall immediately reinstate the action
7 against the affiant. In any action where the affiant is found by
8 the court to have knowingly filed a false affidavit, such
9 conduct shall constitute just cause for the court to instruct
10 the jury that it may award exemplary damages in relation to such
11 conduct.
12 (d) Discovery.--In any action reinstated pursuant to
13 subsection (c), or in any case where the construction design
14 professional is later joined as a defendant, all discovery taken
15 in such action prior to the reinstatement or joinder may be used
16 for any purpose permissible under any statute or rule of court
17 as if the reinstated or joined defendant had participated fully
18 in the action from the date of filing.
19 (e) Definitions.--As used in this section, the following
20 words and phrases shall have the meanings given to them in this
21 subsection:
22 "Affidavit of noninvolvement." A statement, in writing,
23 setting forth with particularity facts which demonstrate that
24 the construction design professional is misidentified or
25 otherwise was not involved with regard to the cause of the
26 injury or damage, individually or through its servants or
27 employees, in the performance of professional services which
28 forms the subject matter of the action, signed by the party
29 making it, and sworn to or affirmed before an officer authorized
30 by the laws of this Commonwealth to take acknowledgments of
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1 deeds or to administer oaths.
2 "Construction design professional."
3 (1) Any person who is an architect, professional
4 engineer, landscape architect or land surveyor licensed by
5 the appropriate State board to practice such profession in
6 this Commonwealth.
7 (2) Any corporation organized to render professional
8 services through the practice of one or more of such
9 professions in this Commonwealth.
10 (3) Any employee of such professional who is assisting
11 or representing the professional in the performance of
12 professional services on the site of the construction
13 project.
14 SECTION 4. TITLE 42 IS AMENDED BY ADDING A CHAPTER TO READ: <--
15 CHAPTER 68
16 CONTROLLED SUBSTANCES FORFEITURES
17 SEC.
18 6801. LOSS OF PROPERTY RIGHTS TO COMMONWEALTH.
19 6802. PROCEDURE WITH RESPECT TO SEIZED PROPERTY SUBJECT TO
20 LIENS AND RIGHTS OF LIENHOLDERS.
21 § 6801. LOSS OF PROPERTY RIGHTS TO COMMONWEALTH.
22 (A) FORFEITURES GENERALLY.--THE FOLLOWING SHALL BE SUBJECT
23 TO FORFEITURE TO THE COMMONWEALTH AND NO PROPERTY RIGHT SHALL
24 EXIST IN THEM:
25 (1) ALL DRUG PARAPHERNALIA, CONTROLLED SUBSTANCES OR
26 OTHER DRUGS WHICH HAVE BEEN MANUFACTURED, DISTRIBUTED,
27 DISPENSED OR ACQUIRED IN VIOLATION OF THE ACT OF APRIL 14,
28 1972 (P.L.233, NO.64), KNOWN AS THE CONTROLLED SUBSTANCE,
29 DRUG, DEVICE AND COSMETIC ACT.
30 (2) ALL RAW MATERIALS, PRODUCTS AND EQUIPMENT OF ANY
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1 KIND WHICH ARE USED, OR INTENDED FOR USE, IN MANUFACTURING,
2 COMPOUNDING, PROCESSING, DELIVERING, IMPORTING OR EXPORTING
3 ANY CONTROLLED SUBSTANCE OR OTHER DRUG IN VIOLATION OF THE
4 CONTROLLED SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT.
5 (3) ALL PROPERTY WHICH IS USED, OR INTENDED FOR USE, AS
6 A CONTAINER FOR PROPERTY DESCRIBED IN PARAGRAPH (1) OR (2).
7 (4) ALL CONVEYANCES, INCLUDING AIRCRAFT, VEHICLES OR
8 VESSELS, WHICH ARE USED OR ARE INTENDED FOR USE TO TRANSPORT,
9 OR IN ANY MANNER TO FACILITATE THE TRANSPORTATION, SALE,
10 RECEIPT, POSSESSION OR CONCEALMENT OF PROPERTY DESCRIBED IN
11 PARAGRAPH (1) OR (2), EXCEPT THAT:
12 (I) NO CONVEYANCE USED BY ANY PERSON AS A COMMON
13 CARRIER IN THE TRANSACTION OF BUSINESS AS A COMMON
14 CARRIER SHALL BE FORFEITED UNDER THE PROVISIONS OF THIS
15 SECTION UNLESS IT SHALL APPEAR THAT THE OWNER OR OTHER
16 PERSON IN CHARGE OF SUCH CONVEYANCE WAS A CONSENTING
17 PARTY OR PRIVY TO A VIOLATION OF THE CONTROLLED
18 SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT;
19 (II) NO CONVEYANCE SHALL BE FORFEITED UNDER THE
20 PROVISIONS OF THIS SECTION BY REASON OF ANY ACT OR
21 OMISSION ESTABLISHED BY THE OWNER THEREOF TO HAVE BEEN
22 COMMITTED OR OMITTED WITHOUT HIS KNOWLEDGE OR CONSENT,
23 WHICH ABSENCE OF KNOWLEDGE OR CONSENT MUST BE REASONABLE
24 UNDER THE CIRCUMSTANCES PRESENTED;
25 (III) NO BONA FIDE SECURITY INTEREST RETAINED OR
26 ACQUIRED UNDER 13 PA.C.S. (RELATING TO COMMERCIAL CODE)
27 BY ANY MERCHANT DEALING IN NEW OR USED AIRCRAFT, VEHICLES
28 OR VESSELS, OR RETAINED OR ACQUIRED BY ANY LICENSED OR
29 REGULATED FINANCE COMPANY, BANK OR LENDING INSTITUTION,
30 OR BY ANY OTHER BUSINESS REGULARLY ENGAGED IN THE
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1 FINANCING OF, OR LENDING ON THE SECURITY OF, SUCH
2 AIRCRAFT, VEHICLES OR VESSELS, SHALL BE SUBJECT TO
3 FORFEITURE OR IMPAIRMENT; AND
4 (IV) NO CONVEYANCE SHALL BE FORFEITED UNDER THIS
5 SECTION FOR VIOLATION OF SECTION 13(A) OF THE CONTROLLED
6 SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT.
7 (5) ALL BOOKS, RECORDS AND RESEARCH, INCLUDING FORMULAS,
8 MICROFILM, TAPES AND DATA, WHICH ARE USED OR INTENDED FOR USE
9 IN VIOLATION OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND
10 COSMETIC ACT.
11 (6) (I) ALL OF THE FOLLOWING:
12 (A) MONEY, NEGOTIABLE INSTRUMENTS, SECURITIES OR
13 OTHER THINGS OF VALUE FURNISHED OR INTENDED TO BE
14 FURNISHED BY ANY PERSON IN EXCHANGE FOR A CONTROLLED
15 SUBSTANCE IN VIOLATION OF THE CONTROLLED SUBSTANCE,
16 DRUG, DEVICE AND COSMETIC ACT, AND ALL PROCEEDS
17 TRACEABLE TO SUCH AN EXCHANGE.
18 (B) MONEY, NEGOTIABLE INSTRUMENTS, SECURITIES OR
19 OTHER THINGS OF VALUE USED OR INTENDED TO BE USED TO
20 FACILITATE ANY VIOLATION OF THE CONTROLLED SUBSTANCE,
21 DRUG, DEVICE AND COSMETIC ACT.
22 (C) REAL PROPERTY USED OR INTENDED TO BE USED TO
23 FACILITATE ANY VIOLATION OF THE CONTROLLED SUBSTANCE,
24 DRUG, DEVICE AND COSMETIC ACT, INCLUDING STRUCTURES
25 OR OTHER IMPROVEMENTS THEREON, AND INCLUDING ANY
26 RIGHT, TITLE AND INTEREST IN THE WHOLE OR ANY LOT OR
27 TRACT OF LAND AND ANY APPURTENANCES OR IMPROVEMENTS,
28 WHICH IS USED, OR INTENDED TO BE USED, IN ANY MANNER
29 OR PART, TO COMMIT, OR TO FACILITATE THE COMMISSION
30 OF, A VIOLATION OF THE CONTROLLED SUBSTANCE, DRUG,
19870H1308B3147 - 9 -
1 DEVICE AND COSMETIC ACT, AND THINGS GROWING ON,
2 AFFIXED TO AND FOUND IN THE LAND.
3 (II) NO PROPERTY SHALL BE FORFEITED UNDER THIS
4 PARAGRAPH, TO THE EXTENT OF THE INTEREST OF AN OWNER, BY
5 REASON OF ANY ACT OR OMISSION ESTABLISHED BY THE OWNER TO
6 HAVE BEEN COMMITTED OR OMITTED WITHOUT THE KNOWLEDGE OR
7 CONSENT OF THAT OWNER. SUCH MONEY AND NEGOTIABLE
8 INSTRUMENTS FOUND IN CLOSE PROXIMITY TO CONTROLLED
9 SUBSTANCES POSSESSED IN VIOLATION OF THE CONTROLLED
10 SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT SHALL BE
11 REBUTTABLY PRESUMED TO BE PROCEEDS DERIVED FROM THE
12 SELLING OF A CONTROLLED SUBSTANCE IN VIOLATION OF THE
13 CONTROLLED SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT.
14 (III) NO VALID LIEN OR ENCUMBRANCE ON REAL PROPERTY
15 SHALL BE SUBJECT TO FORFEITURE OR IMPAIRMENT UNDER THIS
16 PARAGRAPH. A LIEN WHICH IS FRAUDULENT OR INTENDED TO
17 AVOID FORFEITURE UNDER THIS SECTION SHALL BE INVALID.
18 (7) ANY FIREARMS, INCLUDING, BUT NOT LIMITED TO, RIFLES,
19 SHOTGUNS, PISTOLS, REVOLVERS, MACHINE GUNS, ZIP GUNS OR ANY
20 TYPE OF PROHIBITED OFFENSIVE WEAPON, AS THAT TERM IS DEFINED
21 IN 18 PA.C.S. (RELATING TO CRIMES AND OFFENSES), WHICH ARE
22 USED OR INTENDED FOR USE TO FACILITATE A VIOLATION OF THE
23 CONTROLLED SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT. SUCH
24 OPERABLE FIREARMS AS ARE FOUND IN CLOSE PROXIMITY TO
25 ILLEGALLY POSSESSED CONTROLLED SUBSTANCES SHALL BE REBUTTABLY
26 PRESUMED TO BE USED OR INTENDED FOR USE TO FACILITATE A
27 VIOLATION OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND
28 COSMETIC ACT. ALL WEAPONS FORFEITED UNDER THIS SECTION SHALL
29 BE IMMEDIATELY DESTROYED BY THE RECEIVING LAW ENFORCEMENT
30 AGENCY.
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1 (B) PROCESS AND SEIZURE.--PROPERTY SUBJECT TO FORFEITURE
2 UNDER THIS CHAPTER MAY BE SEIZED BY THE LAW ENFORCEMENT
3 AUTHORITY UPON PROCESS ISSUED BY ANY COURT OF COMMON PLEAS
4 HAVING JURISDICTION OVER THE PROPERTY. SEIZURE WITHOUT PROCESS
5 MAY BE MADE IF:
6 (1) THE SEIZURE IS INCIDENT TO AN ARREST OR A SEARCH
7 UNDER A SEARCH WARRANT OR INSPECTION UNDER AN ADMINISTRATIVE
8 INSPECTION WARRANT;
9 (2) THE PROPERTY SUBJECT TO SEIZURE HAS BEEN THE SUBJECT
10 OF A PRIOR JUDGMENT IN FAVOR OF THE COMMONWEALTH IN A
11 CRIMINAL INJUNCTION OR FORFEITURE PROCEEDING UNDER THIS
12 CHAPTER;
13 (3) THERE IS PROBABLE CAUSE TO BELIEVE THAT THE PROPERTY
14 IS DANGEROUS TO HEALTH OR SAFETY; OR
15 (4) THERE IS PROBABLE CAUSE TO BELIEVE THAT THE PROPERTY
16 HAS BEEN USED OR IS INTENDED TO BE USED IN VIOLATION OF THE
17 CONTROLLED SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT.
18 (C) SEIZURE WITHOUT PROCESS.--IN THE EVENT SEIZURE WITHOUT
19 PROCESS OCCURS, AS PROVIDED HEREIN, PROCEEDINGS FOR THE ISSUANCE
20 THEREOF SHALL BE INSTITUTED FORTHWITH.
21 (D) CUSTODY OF PROPERTY.--PROPERTY TAKEN OR DETAINED UNDER
22 THIS SECTION SHALL NOT BE SUBJECT TO REPLEVIN, BUT IS DEEMED TO
23 BE IN THE CUSTODY OF THE LAW ENFORCEMENT AUTHORITY SUBJECT ONLY
24 TO THE ORDERS AND DECREES OF THE COURT OF COMMON PLEAS HAVING
25 JURISDICTION OVER THE FORFEITURE PROCEEDINGS AND OF THE DISTRICT
26 ATTORNEY OR THE ATTORNEY GENERAL. WHEN PROPERTY IS SEIZED UNDER
27 THIS CHAPTER, THE LAW ENFORCEMENT AUTHORITY SHALL PLACE THE
28 PROPERTY UNDER SEAL AND EITHER:
29 (1) REMOVE THE PROPERTY TO A PLACE DESIGNATED BY IT; OR
30 (2) REQUIRE THAT THE DISTRICT ATTORNEY OR ATTORNEY
19870H1308B3147 - 11 -
1 GENERAL TAKE CUSTODY OF THE PROPERTY AND REMOVE IT TO AN
2 APPROPRIATE LOCATION FOR DISPOSITION IN ACCORDANCE WITH LAW.
3 (E) USE OF PROPERTY HELD IN CUSTODY.--WHENEVER PROPERTY IS
4 FORFEITED UNDER THIS CHAPTER, THE PROPERTY SHALL BE TRANSFERRED
5 TO THE CUSTODY OF THE DISTRICT ATTORNEY, IF THE LAW ENFORCEMENT
6 AUTHORITY SEIZING THE PROPERTY HAS LOCAL OR COUNTY JURISDICTION,
7 OR THE ATTORNEY GENERAL, IF THE LAW ENFORCEMENT AUTHORITY
8 SEIZING THE PROPERTY HAS STATEWIDE JURISDICTION. THE DISTRICT
9 ATTORNEY OR THE ATTORNEY GENERAL, WHERE APPROPRIATE, MAY:
10 (1) RETAIN THE PROPERTY FOR OFFICIAL USE.
11 (2) SELL ANY FORFEITED PROPERTY WHICH IS NOT REQUIRED TO
12 BE DESTROYED BY LAW AND WHICH IS NOT HARMFUL TO THE PUBLIC,
13 BUT THE PROCEEDS FROM ANY SUCH SALE SHALL BE USED TO PAY ALL
14 PROPER EXPENSES OF THE PROCEEDINGS FOR FORFEITURE AND SALE,
15 INCLUDING EXPENSES OF SEIZURE, MAINTENANCE OF CUSTODY,
16 ADVERTISING AND COURT COSTS. THE BALANCE OF THE PROCEEDS
17 SHALL BE DEALT WITH IN ACCORDANCE WITH SUBSECTIONS (F) AND
18 (G).
19 (F) USE OF CASH OR PROCEEDS OF PROPERTY.--CASH OR PROCEEDS
20 OF FORFEITED PROPERTY TRANSFERRED TO THE CUSTODY OF THE DISTRICT
21 ATTORNEY PURSUANT TO SUBSECTION (E) SHALL BE PLACED IN THE
22 OPERATING FUND OF THE COUNTY IN WHICH THE DISTRICT ATTORNEY IS
23 ELECTED. THE APPROPRIATE COUNTY AUTHORITY SHALL IMMEDIATELY
24 RELEASE FROM THE OPERATING FUND, WITHOUT RESTRICTION, A LIKE
25 AMOUNT FOR THE USE OF THE DISTRICT ATTORNEY ENFORCING THE
26 PROVISIONS OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND
27 COSMETIC ACT. THE ENTITY HAVING BUDGETARY CONTROL SHALL NOT
28 ANTICIPATE FUTURE FORFEITURES OR PROCEEDS THEREFROM IN ADOPTION
29 AND APPROVAL OF THE BUDGET FOR THE DISTRICT ATTORNEY.
30 (G) DISTRIBUTION OF PROPERTY AMONG LAW ENFORCEMENT
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1 AUTHORITIES.--IF BOTH MUNICIPAL AND STATE LAW ENFORCEMENT
2 AUTHORITIES WERE SUBSTANTIALLY INVOLVED IN EFFECTING THE
3 SEIZURE, THE COURT HAVING JURISDICTION OVER THE FORFEITURE
4 PROCEEDINGS SHALL EQUITABLY DISTRIBUTE THE PROPERTY BETWEEN THE
5 DISTRICT ATTORNEY AND THE ATTORNEY GENERAL.
6 (H) AUTHORIZATION TO UTILIZE PROPERTY.--THE DISTRICT
7 ATTORNEY AND THE ATTORNEY GENERAL SHALL UTILIZE FORFEITED
8 PROPERTY OR PROCEEDS THEREOF FOR THE PURPOSE OF ENFORCING THE
9 PROVISIONS OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND
10 COSMETIC ACT.
11 (I) ANNUAL AUDIT OF FORFEITED PROPERTY.--IT SHALL BE THE
12 RESPONSIBILITY OF EVERY COUNTY IN THIS COMMONWEALTH TO PROVIDE,
13 THROUGH THE CONTROLLER, BOARD OF AUDITORS OR OTHER APPROPRIATE
14 AUDITOR, AN ANNUAL AUDIT OF ALL FORFEITED PROPERTY AND PROCEEDS
15 OBTAINED UNDER THIS SECTION. THE AUDIT SHALL NOT BE MADE PUBLIC
16 BUT SHALL BE SUBMITTED TO THE OFFICE OF ATTORNEY GENERAL. THE
17 COUNTY SHALL REPORT ALL FORFEITED PROPERTY AND PROCEEDS OBTAINED
18 UNDER THIS SECTION AND THE DISPOSITION THEREOF TO THE ATTORNEY
19 GENERAL BY SEPTEMBER 30 OF EACH YEAR.
20 (J) ANNUAL REPORT; CONFIDENTIAL INFORMATION REGARDING
21 PROPERTY.--THE ATTORNEY GENERAL SHALL ANNUALLY SUBMIT A REPORT,
22 TO THE APPROPRIATIONS AND JUDICIARY COMMITTEES OF THE SENATE AND
23 TO THE APPROPRIATIONS AND JUDICIARY COMMITTEES OF THE HOUSE OF
24 REPRESENTATIVES, SPECIFYING THE FORFEITED PROPERTY OR PROCEEDS
25 THEREOF OBTAINED UNDER THIS SECTION. THE REPORT SHALL GIVE AN
26 ACCOUNTING OF ALL PROCEEDS DERIVED FROM THE SALE OF FORFEITED
27 PROPERTY AND THE USE MADE OF UNSOLD FORFEITED PROPERTY. THE
28 ATTORNEY GENERAL SHALL ADOPT PROCEDURES AND GUIDELINES GOVERNING
29 THE RELEASE OF INFORMATION BY THE DISTRICT ATTORNEY TO PROTECT
30 THE CONFIDENTIALITY OF FORFEITED PROPERTY OR PROCEEDS USED IN
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1 ONGOING DRUG ENFORCEMENT ACTIVITIES.
2 (K) PROCEEDS AND APPROPRIATIONS.--THE PROCEEDS OR FUTURE
3 PROCEEDS FROM FORFEITED PROPERTY UNDER THIS CHAPTER SHALL BE IN
4 ADDITION TO ANY APPROPRIATION MADE TO THE OFFICE OF ATTORNEY
5 GENERAL.
6 § 6802. PROCEDURE WITH RESPECT TO SEIZED PROPERTY SUBJECT TO
7 LIENS AND RIGHTS OF LIENHOLDERS.
8 (A) GENERAL PROCEDURE.--THE PROCEEDINGS FOR THE FORFEITURE
9 OR CONDEMNATION OF PROPERTY, THE SALE OF WHICH IS PROVIDED FOR
10 IN THIS CHAPTER SHALL BE IN REM, IN WHICH THE COMMONWEALTH SHALL
11 BE THE PLAINTIFF AND THE PROPERTY THE DEFENDANT. A PETITION
12 SHALL BE FILED IN THE COURT OF COMMON PLEAS OF THE JUDICIAL
13 DISTRICT WHERE THE PROPERTY IS LOCATED, VERIFIED BY OATH OR
14 AFFIRMATION OF AN OFFICER OR CITIZEN, CONTAINING THE FOLLOWING:
15 (1) A DESCRIPTION OF THE PROPERTY SEIZED.
16 (2) A STATEMENT OF THE TIME AND PLACE WHERE SEIZED.
17 (3) THE OWNER, IF KNOWN.
18 (4) THE PERSON OR PERSONS IN POSSESSION, IF KNOWN.
19 (5) AN ALLEGATION THAT THE PROPERTY IS SUBJECT TO
20 FORFEITURE PURSUANT TO SECTION 6801(A) (RELATING TO LOSS OF
21 PROPERTY RIGHTS TO COMMONWEALTH) AND AN AVERMENT OF MATERIAL
22 FACTS UPON WHICH THE FORFEITURE ACTION IS BASED.
23 (6) A PRAYER FOR AN ORDER OF FORFEITURE THAT THE
24 PROPERTY BE ADJUDGED FORFEITED TO THE COMMONWEALTH AND
25 CONDEMNED AND BE ORDERED SOLD ACCORDING TO LAW, UNLESS CAUSE
26 BE SHOWN TO THE CONTRARY.
27 (B) NOTICE TO PROPERTY OWNERS.--A COPY OF THE PETITION
28 REQUIRED UNDER SUBSECTION (A) SHALL BE SERVED PERSONALLY OR BY
29 CERTIFIED MAIL ON THE OWNER OR UPON THE PERSON OR PERSONS IN
30 POSSESSION AT THE TIME OF THE SEIZURE. THE COPY SHALL HAVE
19870H1308B3147 - 14 -
1 ENDORSED A NOTICE, AS FOLLOWS:
2 TO THE CLAIMANT OF WITHIN DESCRIBED PROPERTY:
3 YOU ARE REQUIRED TO FILE AN ANSWER TO THIS PETITION, SETTING
4 FORTH YOUR TITLE IN, AND RIGHT TO POSSESSION OF, SAID
5 PROPERTY WITHIN 30 DAYS FROM THE SERVICE HEREOF, AND YOU ARE
6 ALSO NOTIFIED THAT, IF YOU FAIL TO FILE SAID ANSWER, A DECREE
7 OF FORFEITURE AND CONDEMNATION WILL BE ENTERED AGAINST SAID
8 PROPERTY.
9 THE NOTICE SHALL BE SIGNED BY THE ATTORNEY GENERAL, DEPUTY
10 ATTORNEY GENERAL, DISTRICT ATTORNEY, DEPUTY DISTRICT ATTORNEY OR
11 ASSISTANT DISTRICT ATTORNEY.
12 (C) SUBSTITUTE NOTICE.--IF THE OWNER OF THE PROPERTY IS
13 UNKNOWN OR THERE WAS NO PERSON IN POSSESSION OF THE PROPERTY
14 WHEN SEIZED, OR IF THE OWNER OR SUCH PERSON OR PERSONS IN
15 POSSESSION AT THE TIME OF THE SEIZURE CANNOT BE PERSONALLY
16 SERVED OR LOCATED WITHIN THE JURISDICTION OF THE COURT, NOTICE
17 OF THE PETITION SHALL BE GIVEN BY THE COMMONWEALTH THROUGH AN
18 ADVERTISEMENT IN ONLY ONE NEWSPAPER OF GENERAL CIRCULATION
19 PUBLISHED IN THE COUNTY WHERE THE PROPERTY SHALL HAVE BEEN
20 SEIZED, ONCE A WEEK FOR TWO SUCCESSIVE WEEKS. NO OTHER
21 ADVERTISEMENT OF ANY SORT SHALL BE NECESSARY, ANY OTHER LAW TO
22 THE CONTRARY NOTWITHSTANDING. THE NOTICE SHALL CONTAIN A
23 STATEMENT OF THE SEIZURE OF THE PROPERTY WITH A DESCRIPTION OF
24 THE PROPERTY AND THE PLACE AND DATE OF SEIZURE AND SHALL DIRECT
25 ANY CLAIMANTS TO THE PROPERTY TO FILE A CLAIM ON OR BEFORE A
26 DATE GIVEN IN THE NOTICE, WHICH DATE SHALL NOT BE LESS THAN 30
27 DAYS FROM THE DATE OF THE FIRST PUBLICATION. IF NO CLAIMS ARE
28 FILED WITHIN 30 DAYS OF PUBLICATION, THE PROPERTY SHALL
29 SUMMARILY FORFEIT TO THE COMMONWEALTH.
30 (D) PROPERTY OWNERS NOT IN JURISDICTION.--FOR PURPOSES OF
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1 THIS SECTION, THE OWNER OR OTHER SUCH PERSON CANNOT BE FOUND IN
2 THE JURISDICTION OF THE COURT IF:
3 (1) A COPY OF THE PETITION IS MAILED TO THE LAST KNOWN
4 ADDRESS BY CERTIFIED MAIL AND IS RETURNED WITHOUT DELIVERY;
5 (2) PERSONAL SERVICE IS ATTEMPTED ONCE, BUT CANNOT BE
6 MADE AT THE LAST KNOWN ADDRESS; AND
7 (3) A COPY OF THE PETITION IS LEFT AT THE LAST KNOWN
8 ADDRESS.
9 (E) NOTICE AUTOMATICALLY WAIVED.--THE NOTICE PROVISIONS OF
10 THIS SECTION ARE AUTOMATICALLY WAIVED WHEN THE OWNER, WITHOUT
11 GOOD CAUSE, FAILS TO APPEAR IN COURT IN RESPONSE TO A SUBPOENA
12 ON THE UNDERLYING CRIMINAL CHARGES. FORTY-FIVE DAYS AFTER SUCH A
13 FAILURE TO APPEAR, IF GOOD CAUSE HAS NOT BEEN DEMONSTRATED, THE
14 PROPERTY SHALL SUMMARILY FORFEIT TO THE COMMONWEALTH.
15 (F) PRESERVATION OF THE PROPERTY SUBJECT FOR FORFEITURE.--
16 UPON APPLICATION OF THE COMMONWEALTH, THE COURT MAY ENTER A
17 RESTRAINING ORDER OR INJUNCTION, REQUIRE THE EXECUTION OF A
18 SATISFACTORY PERFORMANCE BOND OR TAKE ANY OTHER ACTION TO
19 PRESERVE THE AVAILABILITY OF PROPERTY DESCRIBED IN SECTION
20 6801(A) FOR FORFEITURE UNDER THIS SECTION EITHER:
21 (1) UPON THE FILING OF AN INFORMATION OR AN INDICTMENT
22 CHARGING A VIOLATION OF THE ACT OF APRIL 14, 1972 (P.L.233,
23 NO.64), KNOWN AS THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND
24 COSMETIC ACT, FOR WHICH CRIMINAL FORFEITURE MAY BE ORDERED
25 UNDER THIS CHAPTER AND ALLEGING THAT THE PROPERTY WITH
26 RESPECT TO WHICH THE ORDER IS SOUGHT WOULD BE SUBJECT TO
27 FORFEITURE; OR
28 (2) PRIOR TO THE FILING OF SUCH AN INDICTMENT OR
29 INFORMATION, IF, AFTER NOTICE TO PERSONS APPEARING TO HAVE AN
30 INTEREST IN THE PROPERTY AND AN OPPORTUNITY FOR A HEARING,
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1 THE COURT DETERMINES THAT:
2 (I) THERE IS A SUBSTANTIAL PROBABILITY THAT THE
3 COMMONWEALTH WILL PREVAIL ON THE ISSUE OF FORFEITURE AND
4 THAT FAILURE TO ENTER THE ORDER WILL RESULT IN THE
5 PROPERTY BEING DESTROYED, REMOVED FROM THE JURISDICTION
6 OF THE COURT OR OTHERWISE MADE UNAVAILABLE FOR
7 FORFEITURE; AND
8 (II) THE NEED TO PRESERVE THE AVAILABILITY OF THE
9 PROPERTY THROUGH THE ENTRY OF THE REQUESTED ORDER
10 OUTWEIGHS THE HARDSHIP ON ANY PARTY AGAINST WHOM THE
11 ORDER IS TO BE ENTERED.
12 HOWEVER, AN ORDER ENTERED PURSUANT TO THIS PARAGRAPH SHALL BE
13 EFFECTIVE FOR NOT MORE THAN 90 DAYS UNLESS EXTENDED BY THE
14 COURT FOR GOOD CAUSE SHOWN OR UNLESS AN INDICTMENT OR
15 INFORMATION DESCRIBED IN PARAGRAPH (1) HAS BEEN FILED.
16 (G) TEMPORARY RESTRAINING ORDER.--A TEMPORARY RESTRAINING
17 ORDER UNDER SUBSECTION (E) MAY BE ENTERED UPON APPLICATION OF
18 THE COMMONWEALTH WITHOUT NOTICE OR OPPORTUNITY FOR A HEARING
19 WHEN AN INFORMATION OR INDICTMENT HAS NOT YET BEEN FILED WITH
20 RESPECT TO THE PROPERTY, IF THE COMMONWEALTH DEMONSTRATES THAT
21 THERE IS PROBABLE CAUSE TO BELIEVE THAT THE PROPERTY WITH
22 RESPECT TO WHICH THE ORDER IS SOUGHT WOULD BE SUBJECT TO
23 FORFEITURE UNDER THIS CHAPTER AND THAT PROVISION OF NOTICE WILL
24 JEOPARDIZE THE AVAILABILITY OF THE PROPERTY FOR FORFEITURE. SUCH
25 A TEMPORARY ORDER SHALL EXPIRE NOT MORE THAN TEN DAYS AFTER THE
26 DATE ON WHICH IT IS ENTERED, UNLESS EXTENDED FOR GOOD CAUSE
27 SHOWN OR UNLESS THE PARTY AGAINST WHOM IT IS ENTERED CONSENTS TO
28 AN EXTENSION FOR A LONGER PERIOD. A HEARING REQUESTED CONCERNING
29 AN ORDER ENTERED UNDER THIS SUBSECTION SHALL BE HELD AT THE
30 EARLIEST POSSIBLE TIME AND PRIOR TO THE EXPIRATION OF THE
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1 TEMPORARY ORDER.
2 (H) HEARING REGARDING PROPERTY; RULES OF EVIDENCE.--THE
3 COURT MAY RECEIVE AND CONSIDER, AT A HEARING HELD PURSUANT TO
4 SUBSECTION (E) OR (F), EVIDENCE AND INFORMATION THAT WOULD BE
5 INADMISSIBLE UNDER THE RULES OF EVIDENCE.
6 (I) HEARING TIME SET.--UPON THE FILING OF A CLAIM FOR THE
7 PROPERTY SETTING FORTH A RIGHT OF POSSESSION, THE CASE SHALL BE
8 DEEMED AT ISSUE AND A TIME SHALL BE FIXED FOR THE HEARING.
9 (J) OWNER'S BURDEN OF PROOF.--AT THE TIME OF THE HEARING, IF
10 THE COMMONWEALTH PRODUCES EVIDENCE THAT THE PROPERTY IN QUESTION
11 WAS UNLAWFULLY USED, POSSESSED OR OTHERWISE SUBJECT TO
12 FORFEITURE UNDER SECTION 6801(A), THE BURDEN SHALL BE UPON THE
13 CLAIMANT TO SHOW:
14 (1) THAT THE CLAIMANT IS THE OWNER OF THE PROPERTY OR
15 THE HOLDER OF A CHATTEL MORTGAGE OR CONTRACT OF CONDITIONAL
16 SALE THEREON.
17 (2) THAT THE CLAIMANT LAWFULLY ACQUIRED THE PROPERTY.
18 (3) THAT IT WAS NOT UNLAWFULLY USED OR POSSESSED BY HIM.
19 IN THE EVENT THAT IT SHALL APPEAR THAT THE PROPERTY WAS
20 UNLAWFULLY USED OR POSSESSED BY A PERSON OTHER THAN THE
21 CLAIMANT, THEN THE CLAIMANT SHALL SHOW THAT THE UNLAWFUL USE
22 OR POSSESSION WAS WITHOUT HIS KNOWLEDGE OR CONSENT. SUCH
23 ABSENCE OF KNOWLEDGE OR CONSENT MUST BE REASONABLE UNDER THE
24 CIRCUMSTANCES PRESENTED.
25 (K) COURT-ORDERED RELEASE OF PROPERTY.--IF A PERSON CLAIMING
26 THE OWNERSHIP OF OR RIGHT OF POSSESSION TO OR CLAIMING TO BE THE
27 HOLDER OF A CHATTEL MORTGAGE OR CONTRACT OF CONDITIONAL SALE
28 UPON THE PROPERTY, THE DISPOSITION OF WHICH IS PROVIDED FOR IN
29 THIS SECTION, PRIOR TO THE SALE PRESENTS A PETITION TO THE COURT
30 ALLEGING OVER THE PROPERTY LAWFUL OWNERSHIP, RIGHT OF
19870H1308B3147 - 18 -
1 POSSESSION, A LIEN OR RESERVATION OF TITLE AND IF, UPON PUBLIC
2 HEARING, DUE NOTICE OF WHICH HAVING BEEN GIVEN TO THE ATTORNEY
3 GENERAL OR THE DISTRICT ATTORNEY, THE CLAIMANT SHALL PROVE BY
4 COMPETENT EVIDENCE TO THE SATISFACTION OF THE COURT THAT THE
5 PROPERTY WAS LAWFULLY ACQUIRED, POSSESSED AND USED BY HIM OR, IT
6 APPEARING THAT THE PROPERTY WAS UNLAWFULLY USED BY A PERSON
7 OTHER THAN THE CLAIMANT, THAT THE UNLAWFUL USE WAS WITHOUT THE
8 CLAIMANT'S KNOWLEDGE OR CONSENT, THEN THE COURT MAY ORDER THE
9 PROPERTY RETURNED OR DELIVERED TO THE CLAIMANT. SUCH ABSENCE OF
10 KNOWLEDGE OR CONSENT MUST BE REASONABLE UNDER THE CIRCUMSTANCES
11 PRESENTED. OTHERWISE, IT SHALL BE RETAINED FOR OFFICIAL USE OR
12 SOLD IN ACCORDANCE WITH SECTION 6801(E).
13 SECTION 3 5. SECTION 8362 OF TITLE 42 IS AMENDED TO READ: <--
14 § 8362. DEFINITIONS OF SUBCHAPTER.
15 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS SUBCHAPTER
16 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
17 CONTEXT CLEARLY INDICATES OTHERWISE:
18 "BUSINESS CORPORATION." ANY CORPORATION SUBJECT TO THE ACT
19 OF MAY 17, 1921 (P.L.682, NO.284), KNOWN AS THE INSURANCE
20 COMPANY LAW OF 1921, THE ACT OF MAY 5, 1933 (P.L.364, NO.106),
21 KNOWN AS THE BUSINESS CORPORATION LAW, THE ACT OF NOVEMBER 30,
22 1965 (P.L.847, NO.356), KNOWN AS THE BANKING CODE OF 1965, OR
23 THE ACT OF DECEMBER 14, 1967 (P.L.746, NO.345), KNOWN AS THE
24 SAVINGS ASSOCIATION CODE OF 1967.
25 "NONPROFIT CORPORATION." A CORPORATION SUBJECT TO 15 PA.C.S.
26 PART III (RELATING TO CORPORATIONS NOT-FOR-PROFIT) OR ANY
27 FRATERNAL BENEFIT SOCIETY SUBJECT TO THE ACT OF JULY 29, 1977
28 (P.L.105, NO.38), KNOWN AS THE FRATERNAL BENEFIT SOCIETY CODE.
29 Section 3 4 6. Section 9754(c) of Title 42 is amended by <--
30 adding a paragraph to read:
19870H1308B3147 - 19 -
1 § 9754. Order of probation.
2 * * *
3 (c) Specific conditions.--The court may as a condition of
4 its order require the defendant:
5 * * *
6 (14) To remain within the premises of his residence
7 during the hours designated by the court.
8 * * *
9 SECTION 7. SECTIONS 28 AND 29 OF THE ACT OF APRIL 14, 1972 <--
10 (P.L.233, NO.64), KNOWN AS THE CONTROLLED SUBSTANCE, DRUG,
11 DEVICE AND COSMETIC ACT, ARE REPEALED.
12 SECTION 8. SECTIONS 2 AND 9 OF THIS ACT SHALL BE RETROACTIVE
13 TO JULY 13, 1987.
14 SECTION 9. THE ACT OF JULY 13, 1987 (P.L.340, NO.64),
15 ENTITLED "AN ACT PROVIDING FOR THE ESTABLISHMENT, FUNDING AND
16 OPERATION OF A SPECIAL RESTRICTED RECEIPT ACCOUNT WITHIN THE
17 GENERAL FUND TO SUPPORT THE ESTABLISHMENT AND OPERATION OF A
18 STATEWIDE JUDICIAL COMPUTER SYSTEM; PROVIDING FOR ANNUAL
19 APPROPRIATIONS FROM THE RESTRICTED FUNDS; AND PROVIDING FOR THE
20 PAYMENT OF A PORTION OF ALL FINES, FEES AND COSTS COLLECTED BY
21 THE JUDICIARY INTO THE RESTRICTED RECEIPT ACCOUNT," IS REPEALED.
22 Section 4 5 10. This act shall take effect immediately. <--
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