PRIOR PRINTER'S NOS. 907, 1243 PRINTER'S NO. 1798
No. 849 Session of 1999
INTRODUCED BY KENNEY, FARGO, CLARK, WOGAN, MICOZZIE, ORIE, HENNESSEY, GODSHALL, HERMAN, ADOLPH, WALKO, PETRARCA, LAUGHLIN, JAMES, DeLUCA, SAINATO, PRESTON, WILT, STABACK, SAYLOR, GEIST, E. Z. TAYLOR, MAHER, PESCI, TIGUE, HARHAI, MELIO, CURRY, COLAFELLA, TRELLO, WILLIAMS, ROONEY, RUBLEY, STEELMAN AND RAMOS, MARCH 10, 1999
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF REPRESENTATIVES, AS AMENDED, MAY 11, 1999
AN ACT 1 Prohibiting false claims; imposing duties on the Attorney 2 General and on district attorneys; and providing for 3 procedures and for penalties. 4 TABLE OF CONTENTS 5 Chapter 1. Preliminary Provisions 6 Section 101. Short title. 7 Section 102. Definitions. 8 Section 103. Construction. 9 Chapter 3. False Claims 10 Section 301. Offenses defined. 11 Section 302. False claims jurisdiction. 12 Section 303. Procedure. 13 Chapter 5. Qui Tam Actions 14 Section 501. General provisions. 15 Section 502. Commonwealth funds. 16 Section 503. Political subdivision funds.
1 Section 504. Complaints relating to Commonwealth and political 2 subdivision funds. 3 Section 505. Intervention by political subdivision. 4 Section 506. Extension of time. 5 Section 507. Other actions prohibited. 6 Section 508. Exclusions. 7 Section 509. Employment-related discovery of information. 8 Section 510. Responsibility for prosecution. 9 Section 511. Dismissal of action. 10 Section 512. Settlement. 11 Section 513. Election not to proceed. 12 Section 514. Intervention. 13 Section 515. Proceeds. 14 Section 516. Reversion to General Fund. 15 Section 517. Expenses. 16 Chapter 7. General Provisions 17 Section 701. Stay of discovery. <-- 18 Section 702. Limitations on participation. 19 Section 703. Employee protection. 20 Section 704. Limitations. 21 Section 705. Remedies. 22 Section 706. Enforcement. 23 Section 707. Civil investigative demand. 24 Section 708. Immunity. 25 Section 709. Effective date. 26 SECTION 701. RULES OF CIVIL PROCEDURE. <-- 27 SECTION 702. STAY OF DISCOVERY. 28 SECTION 703. LIMITATIONS ON PARTICIPATION. 29 SECTION 704. EMPLOYEE PROTECTION. 30 SECTION 705. LIMITATIONS. 19990H0849B1798 - 2 -
1 SECTION 706. REMEDIES. 2 SECTION 707. ENFORCEMENT. 3 SECTION 708. CIVIL INVESTIGATIVE DEMAND. 4 SECTION 709. IMMUNITY. 5 SECTION 710. REGULATIONS. 6 SECTION 711. EFFECTIVE DATE. 7 The General Assembly of the Commonwealth of Pennsylvania 8 hereby enacts as follows: 9 CHAPTER 1 10 PRELIMINARY PROVISIONS 11 Section 101. Short title. 12 This act shall be known and may be cited as the False Claims 13 Act. 14 Section 102. Definitions. 15 The following words and phrases when used in this act shall 16 have the meanings given to them in this section unless the 17 context clearly indicates otherwise: 18 "Claim." Any request or demand for money, property or 19 services made to any employee, officer or agent of the 20 Commonwealth or of any political subdivision thereof or to any 21 contractor, subcontractor, grantee or other recipient of the 22 Commonwealth or any political subdivision thereof, if any 23 portion of the money, property or services requested or demanded 24 issued from, was provided or will be reimbursed by the 25 Commonwealth, referred to as Commonwealth funds, or by any 26 political subdivision thereof, referred to as political 27 subdivision funds. 28 "False." In addition to its ordinary meaning, this term also 29 means fraudulent. 30 "Knowing" or "knowingly." A person who, with respect to 19990H0849B1798 - 3 -
1 information, does any of the following: 2 (1) has actual knowledge of the information; 3 (2) acts in deliberate ignorance of the truth or falsity 4 of the information; or 5 (3) acts in reckless disregard of the truth or falsity 6 of the information. 7 Proof of specific intent to defraud shall not be required. 8 "Person." Any natural person, corporation, county, political 9 subdivision, firm, association, legal entity, organization, 10 partnership, business or trust. 11 "Political subdivision." Any city, county, tax or assessment 12 district, municipal or government authority or other legally 13 authorized local governmental entity in this Commonwealth. 14 "Proceeds." The term includes civil penalties as well as 15 double or treble damages as provided in Chapter 3. 16 "Prosecuting authority." The Attorney General and where 17 appropriate the district attorney of any county in which the 18 political subdivision, including the county itself, lies. 19 Section 103. Construction. 20 This act shall be liberally and broadly construed to 21 effectuate its purposes. It shall be applied and interpreted to 22 promote the public interest to eliminate fraud, waste and abuse 23 through the submission of false or fraudulent claims in this 24 Commonwealth or in any of its political subdivisions. 25 CHAPTER 3 26 FALSE CLAIMS 27 Section 301. Offenses defined. 28 (a) Liability.--A person who commits any of the following 29 acts shall be liable to the Commonwealth or to the political 30 subdivision for three times the amount of damages which the 19990H0849B1798 - 4 -
1 Commonwealth or the political subdivision sustains because of 2 the act of that person and shall also be liable to the 3 Commonwealth or to the political subdivision for the costs of an 4 action brought to recover any of those penalties or damages and 5 shall be liable to the Commonwealth or political subdivision for 6 a civil penalty of not less than $5,000 nor more than $10,000 7 for each false claim: 8 (1) Knowingly presents or causes to be presented to an 9 officer or employee of the Commonwealth or any political 10 subdivision a false claim for payment or approval. 11 (2) Knowingly makes, uses or causes to be made or used a 12 false record or statement to get a false claim paid or 13 approved by the Commonwealth or by any political subdivision. 14 (3) Conspires to defraud the Commonwealth or any 15 political subdivision by getting a false claim allowed or 16 paid by the Commonwealth or by any political subdivision. 17 (4) Has possession, custody or control of public 18 property or money used or to be used by the Commonwealth or 19 by any political subdivision and knowingly delivers or causes 20 to be delivered property of lesser quality, quantity or value 21 than for which the person receives a certificate or receipt. 22 (5) Is authorized to make or deliver a document 23 certifying receipt of property used or to be used by the 24 Commonwealth or by any political subdivision and knowingly 25 makes or delivers a receipt that falsely represents the 26 quality, quantity or value of the property used or to be 27 used. 28 (6) Knowingly buys or receives as a pledge of an 29 obligation or debt public property from any person who 30 lawfully may not sell or pledge the property. 19990H0849B1798 - 5 -
1 (7) Knowingly makes, uses or causes to be made or used a
2 false record or statement to conceal, avoid or decrease an
3 obligation to pay or transmit money or property to the
4 Commonwealth or any political subdivision.
5 (8) Unknowingly submits a false claim, is a beneficiary
6 of payment by the Commonwealth or political subdivision for
7 that claim, subsequently discovers or has reasonable grounds
8 to discover that the claim was false and fails to disclose
9 that the claim was false. Disclosure shall be made in writing <--
10 to the Commonwealth or political subdivision within a
11 reasonable time, but in no event longer than 90 days after
12 discovery of the false claim.
13 (b) Reduced assessment.--Notwithstanding subsection (a), the
14 court shall assess not less than two times nor more than three
15 times the amount of damages which the Commonwealth or the
16 political subdivision sustains because of the act of the person
17 described in subsection (a)(1), and no civil penalty, if the
18 court finds all of the following:
19 (1) The person committing the violation furnished the
20 prosecuting authority with all information known to that
21 person about the violation within 60 days after the date on
22 which the person first obtained the information.
23 (2) The person fully cooperated with any investigation
24 by the prosecuting authority of the violation.
25 (3) At the time the person furnished the prosecuting
26 authority with information about the violation, no criminal
27 prosecution, civil action or administrative action had
28 commenced with respect to the violation and the person did
29 not have knowledge or notice of the existence of an
30 investigation into the violation.
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1 (c) Joint and several liability.--Liability under this 2 section shall be joint and several for any act committed by two 3 or more persons. 4 (d) Limitation.-- 5 (1) This section does not apply to any controversy 6 involving an aggregate amount of less than $2,500 in value or 7 to any claims involving benefits or compensation conferred 8 under the act of June 2, 1915 (P.L.736, No.338), known as the 9 Workers' Compensation Act, or the act of December 5, 1936 10 (2nd Sp.Sess., 1937 P.L.2897, No.1), known as the 11 Unemployment Compensation Law, or the act of June 13, 1967 12 (P.L.31, No.21), known as the Public Welfare Code, except 13 where the claim has not been filed by the individual 14 recipient of benefits. 15 (2) As used in this subsection, the term "controversy" 16 means any one or more false claims submitted or caused to be 17 submitted by either a person or persons who act pursuant to a 18 common plan, scheme or design in violation of this act. 19 Section 302. False claims jurisdiction. 20 An action under this act shall be brought in the Commonwealth 21 Court if any defendant can be found, resides or transacts 22 business in this Commonwealth or if an act proscribed by this 23 act occurred within this Commonwealth. 24 Section 303. Procedure. 25 (a) Commonwealth prosecution.-- 26 (1) The Attorney General shall diligently investigate 27 violations under section 301 involving Commonwealth funds. If 28 the Attorney General finds that a person has violated or is 29 violating section 301, the Attorney General may bring an 30 action under this act against that person. 19990H0849B1798 - 7 -
1 (2) If the Attorney General brings an action under this 2 act on a claim involving political subdivision funds as well 3 as Commonwealth funds, the Attorney General shall, on the 4 same date that the complaint is filed in this action, serve 5 by mail, return receipt requested, a copy of the complaint on 6 the appropriate district attorney. 7 (3) The district attorney shall have the right to 8 intervene in an action brought by the district attorney <-- 9 ATTORNEY GENERAL under this act within 90 days after receipt <-- 10 of the complaint pursuant to paragraph (2). 11 (b) Political subdivision prosecution.-- 12 (1) The district attorney shall diligently investigate 13 violations under section 301 involving political subdivision 14 funds. If the district attorney finds that a person has 15 violated or is violating section 301, he may bring an action 16 under this act against that person. 17 (2) The district attorney may refer a matter involving <-- 18 political subdivision funds to the Attorney General at any 19 time. The Attorney General may decline the referral or may 20 accept it under such terms, as the Attorney General may 21 determine, including, but not limited to, terms regarding the 22 distribution of any recovery from such action, as both the 23 Attorney General and the district attorney deem fit. 24 (2) THE DISTRICT ATTORNEY MAY REFER A MATTER INVOLVING <-- 25 POLITICAL SUBDIVISION FUNDS TO THE ATTORNEY GENERAL AT ANY 26 TIME. THE ATTORNEY GENERAL MAY DECLINE OR ACCEPT THE 27 REFERRAL. 28 (3) If the district attorney brings an action on a claim 29 involving Commonwealth funds as well as political subdivision 30 funds, the district attorney shall, on the same date that the 19990H0849B1798 - 8 -
1 complaint is filed in this action, serve by mail, return 2 receipt requested, a copy of the complaint on the Attorney 3 General. 4 (4) Within 90 days after receiving the complaint 5 pursuant to paragraph (2), the Attorney General shall do one 6 of the following: 7 (i) Notify the court that the district attorney <-- 8 ATTORNEY GENERAL intends to proceed with the action, in <-- 9 which case the Attorney General shall assume primary 10 responsibility for conducting the action and the district 11 attorney shall have the right to continue as a party. 12 (ii) Notify the court that the district attorney <-- 13 ATTORNEY GENERAL declines to prosecute the action, in <-- 14 which case the prosecuting authority representing the <-- 15 political subdivision DISTRICT ATTORNEY shall have the <-- 16 right to conduct the action on its own. 17 (iii) Proceed jointly with the prosecuting authority <-- 18 DISTRICT ATTORNEY, assuming coequal responsibility for <-- 19 prosecution of the action. 20 CHAPTER 5 21 QUI TAM ACTIONS 22 Section 501. General provisions. 23 (a) When action may be brought.--A person may bring a qui 24 tam action for a violation of this act for the person and either 25 for the Commonwealth in the name of the Commonwealth if any 26 Commonwealth funds are involved or for a political subdivision 27 in the name of the political subdivision if political 28 subdivision funds are exclusively involved. A qui tam action may 29 be brought alleging fraud involving both Commonwealth and 30 political subdivision funds. The person bringing the qui tam 19990H0849B1798 - 9 -
1 action shall be referred to as the qui tam plaintiff. Once 2 filed, the qui tam action may be dismissed only by the written 3 consent of the court and the district attorney PROSECUTING <-- 4 AUTHORITY, taking into account the best interests of the parties 5 involved and the public purposes of this act. 6 (b) Filing.--A complaint filed by a qui tam plaintiff under 7 this act shall be filed ex parte under seal with the Clerk of 8 the Commonwealth Court or ex parte under seal in the appropriate 9 Federal district court if Federal funds are also involved, and 10 the complaint and all related pleadings shall remain under seal 11 for 90 days from the date of service. No service shall be made 12 on the defendant until after the complaint is unsealed by order 13 of the court. 14 (c) Service upon Attorney General.--Within three days of the <-- 15 complaint being filed pursuant to subsection (b), the qui tam 16 plaintiff shall serve by mail, return receipt requested, the 17 Attorney General AND THE GENERAL COUNSEL with a copy of the <-- 18 complaint and a written disclosure of substantially all material 19 evidence and information the qui tam plaintiff possesses at that 20 time. 21 Section 502. Commonwealth funds. 22 Within 90 days after receiving a complaint alleging 23 violations which involve Commonwealth funds, but not political 24 subdivision funds, the Attorney General shall do either of the 25 following: 26 (1) Notify the court that it intends to proceed with the 27 action and petition the court to have the case unsealed. If 28 the court grants the Attorney General's request, the seal may 29 be lifted. The court may, upon motion by the Attorney 30 General, order a partial unsealing where appropriate. 19990H0849B1798 - 10 -
1 (2) Notify the court that it declines to prosecute the 2 action, in which case the complaint may be unsealed by the 3 court within 20 days after written notification is made by 4 the Attorney General to the qui tam plaintiff and counsel 5 that the Attorney General does not wish to intervene. Upon 6 such notification, the qui tam plaintiff shall have the right 7 to conduct the action. 8 Section 503. Political subdivision funds. 9 (a) Procedure.--Within 30 days after receiving a complaint 10 alleging violations which exclusively involve political 11 subdivision funds, the Attorney General shall promptly forward 12 the complaint and written disclosure to the appropriate district 13 attorney for review and disposition and shall notify in writing 14 the qui tam plaintiff and counsel of the transfer. 15 (b) Duty of district attorney.--Within 60 days after the 16 Attorney General forwards the complaint and written disclosure 17 under subsection (a), the district attorney shall do either of 18 the following: 19 (1) Notify the court that it intends to proceed with the 20 action and petition the court to have the case unsealed. If 21 the court grants the district attorney's request, the seal 22 shall be lifted. 23 (2) Notify the court that it declines to take over the 24 action, in which case the seal may be lifted within 20 days 25 after such notification has been made and the qui tam 26 plaintiff shall have the right to conduct the action. 27 Section 504. Complaints relating to Commonwealth and political 28 subdivision funds. 29 (a) Complaints.--Within 30 days after receiving a complaint 30 alleging violations which involve or allege both Commonwealth 19990H0849B1798 - 11 -
1 and political subdivision funds, the Attorney General shall 2 forward copies of the complaint and written disclosure to the 3 appropriate district attorney and shall coordinate its review 4 and investigation with those of the prosecuting authority <-- 5 DISTRICT ATTORNEY. <-- 6 (b) Procedure.--Within 90 days after receiving a complaint 7 alleging violations which involve or allege both Commonwealth 8 and political subdivision funds, the Attorney General shall do 9 one of the following: 10 (1) Notify the court in writing that the Attorney 11 General intends to proceed with the action, in which case the 12 seal shall be lifted and service effected on the defendant. 13 (2) Notify the court in writing that the Attorney 14 General declines to take over the action but that the 15 district attorney involved intends to proceed with the 16 action, in which case the seal shall be lifted and the action 17 shall be conducted by the district attorney. 18 (3) Notify the court that both the Attorney General and 19 the district attorney decline to take over the action, in 20 which case the seal may be lifted within 20 days after 21 notification has been made and the qui tam plaintiff shall 22 have the right to conduct the action. 23 Section 505. Intervention by political subdivision. 24 If the Attorney General proceeds with the action under 25 section 503(b)(1), the district attorney shall be permitted to 26 intervene in the action within 60 days after the Attorney 27 General notifies the court of his intentions. 28 Section 506. Extension of time. 29 Upon a showing of good cause and reasonable diligence in his 30 investigation, the district attorney PROSECUTING AUTHORITY may <-- 19990H0849B1798 - 12 -
1 move the court for reasonable extensions of time during which 2 the complaint will remain under seal. The qui tam plaintiff 3 shall be notified of any extensions requested under this 4 section. Any such motions may be supported by affidavits or 5 other submissions in camera. 6 Section 507. Other actions prohibited. 7 When a qui tam plaintiff brings an action under this act, no 8 other person shall be permitted to bring a related action under 9 this act based on the same or similar facts underlying the 10 pending action. 11 Section 508. Exclusions. 12 (a) General rule.--No court shall have jurisdiction over an 13 action brought under this act CHAPTER: <-- 14 (1) against a member of the General Assembly, a member <-- 15 of the judiciary of the Commonwealth, an elected official in 16 the executive branch of the government AN OFFICIAL OR <-- 17 EMPLOYEE of the Commonwealth or a member of the governing <-- 18 body or elected official of any political subdivision if the 19 action is NOT based on evidence or information known to the <-- 20 Commonwealth or political subdivision when the action was 21 brought. ACTUAL KNOWLEDGE AND BAD FAITH OF THE OFFICIAL OR <-- 22 EMPLOYEE. 23 (2) Which relies upon the public disclosure of specific 24 allegations or transactions in a criminal, civil or 25 administrative hearing, in a governmental report, hearing, 26 audit or investigation or from the news media, unless the 27 action is brought by or intervened in by a prosecuting 28 authority or the qui tam plaintiff is an original source of 29 the information. 30 (3) BY A PRISONER AGAINST ANY OFFICIAL OR EMPLOYEE OF <-- 19990H0849B1798 - 13 -
1 THE COMMONWEALTH OR A POLITICAL SUBDIVISION FOR ACTS RELATING
2 TO THE OPERATIONS AND EXPENDITURES OF A CORRECTIONAL AGENCY
3 OR FACILITY.
4 (4) BASED UPON ALLEGATIONS OR TRANSACTIONS WHICH ARE THE
5 SUBJECT OF AN INVESTIGATION, SETTLEMENT DISCUSSION, A
6 SETTLEMENT AGREEMENT, OR ANY CIVIL OR ADMINISTRATIVE
7 PROCEEDING, IN WHICH THE COMMONWEALTH OR POLITICAL
8 SUBDIVISION IS ALREADY A PARTY.
9 (b) Definition.--As used in this section, the term "original
10 source" means an individual who has voluntarily provided the
11 information to the prosecuting authority before filing an action
12 based on that information and either has direct and independent
13 knowledge of the information on which the allegations are based
14 or directly or indirectly provided the impetus, basis or
15 catalyst for the investigation, hearing, audit or report which
16 led to the public disclosure.
17 Section 509. Employment-related discovery of information.
18 No court shall have jurisdiction over an action brought under
19 this act based upon information discovered by a present or
20 former employee of the Commonwealth or a political subdivision
21 during the course of his employment unless that employee first
22 in good faith attempts to use existing internal procedures for
23 reporting and seeking recovery of the falsely claimed sums
24 through official channels and unless the prosecuting authority <--
25 COMMONWEALTH OR POLITICAL SUBDIVISION failed to act on the <--
26 information provided within a reasonable period of time. A
27 reasonable period of time shall mean no longer than six months
28 after information has been disclosed.
29 Section 510. Responsibility for prosecution.
30 If the prosecuting authority proceeds with the action, it
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1 shall have the primary responsibility for prosecuting the 2 action. The qui tam plaintiff shall have the right to continue 3 with all rights and obligations as a full party to the action. 4 Section 511. Dismissal of action. 5 The Commonwealth or political subdivision may seek to dismiss 6 the action for good cause notwithstanding the objections of the 7 qui tam plaintiff if the qui tam plaintiff has been notified by 8 the prosecuting authority of the filing of the motion and the 9 court has provided the qui tam plaintiff with an adequate 10 opportunity to oppose the motion. 11 Section 512. Settlement. 12 The prosecuting authority may settle the action with the 13 defendant notwithstanding the objections of the qui tam 14 plaintiff if the court determines that the proposed settlement 15 is fair, adequate and reasonable under all of the circumstances 16 to all parties involved. 17 Section 513. Election not to proceed. 18 If the prosecuting authority elects not to proceed, the qui 19 tam plaintiff shall have the right to conduct the action. If the 20 prosecuting authority so requests, it shall be served with 21 copies of all pleadings filed in the action and supplied with 22 copies of all deposition transcripts. 23 Section 514. Intervention. 24 Upon timely application, the court may permit the prosecuting 25 authority to intervene in an action with which it had initially 26 declined to proceed if the interest of the Commonwealth or 27 political subdivision in recovery of the property or funds 28 involved is not being adequately represented by the qui tam 29 plaintiff. 30 Section 515. Proceeds. 19990H0849B1798 - 15 -
1 (a) Attorney General.--If the Attorney General initiates an 2 action under section 303(a) or assumes control of an action 3 initiated by the district attorney pursuant to section 4 303(b)(4)(ii), the Attorney General shall receive a fixed 33% of 5 the proceeds of the action or settlement of the claim, which 6 funds shall be used to support and expand its ongoing 7 investigation and prosecution of false claims violations in this 8 Commonwealth or to support other investigation and prosecution 9 efforts. 10 (b) District attorney.--If a district attorney initiates and 11 conducts an action pursuant to section 303(b), the office of the 12 district attorney shall receive a fixed 33% of the proceeds of 13 the action or settlement of the claim, which funds shall be used 14 to support and expand its ongoing investigation and prosecution 15 of false claims violations within its jurisdiction or to support 16 other investigation and prosecution efforts. 17 (c) Award of portion of recovery.--If a district attorney 18 intervenes in an action initiated by the Attorney General 19 pursuant to section 303(a)(3) or remains a party to an action 20 assumed by the Attorney General pursuant to section 303(b)(4)(i) 21 AND (III), the court may award the office of the district <-- 22 attorney a portion of the Attorney General's fixed 33% of the 23 recovery under subsection (a), taking into account the district 24 attorney's role in investigating and conducting the action and 25 the resources of the office expended on the prosecution. 26 (d) Qui tam recovery.-- 27 (1) If the prosecuting authority proceeds with an action 28 brought by a qui tam plaintiff under this act, the qui tam 29 plaintiff shall, subject to subsections (f) and (g), receive 30 not less than 20% nor more than 33% of the full proceeds of 19990H0849B1798 - 16 -
1 the action or settlement of the claim, depending upon the 2 extent to which the qui tam plaintiff substantially 3 contributed to the overall prosecution of the action. If the 4 prosecuting authority and the qui tam plaintiff cannot reach 5 an agreement concerning the percentage of proceeds to be 6 distributed to the qui tam plaintiff, the determination shall <-- 7 be made by the court. 8 (2) When it conducts the action, the Office of Attorney <-- 9 General or the district attorney shall receive a fixed 33% of 10 the proceeds of the action or settlement of the claim, which 11 funds shall be used to support and expand its ongoing 12 investigation and prosecution of false claims made against 13 the Commonwealth or political subdivision or otherwise to 14 investigate or prosecute consistent with the duties of these 15 offices. 16 (3) When both the Attorney General and the district 17 attorney representing the political subdivision are involved <-- 18 as coparties in a qui tam action pursuant to section 504, the 19 court in its discretion may award the district attorney a 20 portion of the Attorney General's fixed 33% of the recovery, 21 taking into account the district attorney's cooperation and 22 contribution to investigating and conducting the action. 23 (e) Decline to proceed.--If the prosecuting authority 24 declines to proceed with an action under subsection (c), the qui <-- 25 tam plaintiff shall, subject to subsections (f) and (g), receive 26 an amount which the court decides is reasonable for collecting 27 the civil penalty and damages on behalf of the Commonwealth or 28 political subdivision. The amount awarded by the court shall be 29 not less than 30% nor more than 50% of the proceeds of the 30 action or settlement and shall be paid out of the proceeds. 19990H0849B1798 - 17 -
1 (f) Present or former employee.--If a qui tam action is 2 brought by a present or former employee of the Commonwealth or 3 political subdivision, the qui tam plaintiff shall not be 4 entitled to any minimum guaranteed recovery from the proceeds. 5 If the prosecuting authority and the qui tam plaintiff cannot 6 reach an agreement concerning the percentage of proceeds to be 7 distributed to the qui tam plaintiff, the determination shall be 8 made by the court. The court may award the qui tam plaintiff 9 those sums from the proceeds as it considers appropriate, but in 10 no case more than 33% of the proceeds if the prosecuting 11 authority goes forth with the action or 50% if it declines to go 12 forth, taking into account the significance of the information, 13 the role of the qui tam plaintiff in advancing the case to 14 litigation and the scope of and response to the qui tam 15 plaintiff's attempts to report and gain recovery of the falsely 16 claimed funds through official channels. 17 (g) Fraudulent activity.-- 18 (1) Where the action is one which the court finds to be 19 based primarily on information from a qui tam plaintiff who 20 actively participated in the fraudulent activity, the qui tam 21 plaintiff shall not be entitled to any minimum guaranteed 22 recovery from the proceeds. If the prosecuting authority and 23 the qui tam plaintiff cannot reach an agreement concerning 24 the percentage of proceeds to be distributed to the qui tam 25 plaintiff, the determination shall be made by the court. The 26 court, in its sole discretion after a full review of all the 27 facts and circumstances, may award the qui tam plaintiff such 28 sums from the proceeds as it considers appropriate under the 29 circumstances, but in no case more than 33% of the proceeds 30 if the prosecuting authority goes forth with the action or 19990H0849B1798 - 18 -
1 50% if it declines to go forth, taking into account the 2 significance of the information, the role of the qui tam 3 plaintiff in advancing the case to litigation, the scope of 4 the qui tam plaintiff's involvement in the fraudulent 5 activity, the qui tam plaintiff's attempts to avoid or resist 6 such activity and all other circumstances surrounding the 7 activity. 8 (2) A person who has been convicted of a crime, either 9 in the same or another jurisdiction, based on participation 10 in the fraudulent activity at issue in the action under this 11 act shall under no circumstances be permitted to participate 12 in any action under this act as a qui tam plaintiff. 13 (h) Present or former sworn law enforcement officer or other 14 governmental investigator.--Any present or former sworn law 15 enforcement officer or other governmental investigator who 16 obtains information regarding a false claim in the course of 17 that officer's or investigator's official duties shall be 18 precluded from participating in the proceeds of a qui tam action 19 on the basis of that information. 20 (i) Use of recoveries.--Proceeds recovered under this act by 21 the prosecuting authority shall be placed in the operating fund 22 of the Commonwealth, the county of the district attorney, or 23 both, as appropriate. The Commonwealth, the county of the 24 district attorney, or both, as appropriate, shall immediately 25 release from the operating fund, without restriction, a like 26 amount for the use of the prosecuting authority for the purposes 27 elsewhere specified in this act. The entity having budgetary 28 control shall not anticipate future recoveries in adoption and 29 approval of the budget for the prosecuting authority. 30 (j) Annual audit of recoveries.--It shall be the 19990H0849B1798 - 19 -
1 responsibility of the Commonwealth, the county of the district
2 attorney, or both, as appropriate, to provide, through the
3 controller, board of auditors or other appropriate auditor, an
4 annual audit of all recoveries under this act. The audit shall
5 not be made public but shall be submitted to the Attorney
6 General's office by September 30 of each year.
7 (k) Annual report.--The Attorney General shall annually
8 submit a report to the Appropriations Committee and the
9 Judiciary Committee of the Senate and the Appropriations
10 Committee and Judiciary Committee of the House of
11 Representatives, specifying the recoveries obtained under this
12 act. The report shall give an accounting of all moneys recovered
13 through the sale of any property seized in satisfaction of any
14 judgment arising from an action under this act.
15 (l) Recoveries and appropriations.--Recoveries or future
16 recoveries under this act shall be in addition to any
17 appropriation made to the office of the prosecuting authority.
18 Section 516. Reversion to General Fund.
19 (a) General rule.--The portion of the proceeds not
20 distributed under section 516 515 shall revert to the General <--
21 Fund when the underlying false claims involved Commonwealth
22 funds exclusively and to the political subdivision when the
23 underlying false claims involved political subdivision funds
24 exclusively. When petitioned to do so, the court shall make an
25 apportionment of the recovered proceeds between the Commonwealth
26 and political subdivision based on their relative share of the
27 funds falsely claimed.
28 (b) Reimbursement.--When an insurer, guarantor or surety has
29 suffered a loss on an underlying false claim through either:
30 (1) reimbursing the Commonwealth or political
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1 subdivision; or
2 (2) directly paying a claimant; <--
3 It IT shall be reimbursed for both. When the reversion to the <--
4 General Fund is inadequate to compensate the Commonwealth or
5 political subdivision for damages sustained and the insurer,
6 guarantor or surety for all moneys reimbursed to the
7 Commonwealth or political subdivision or directly paid to a
8 claimant as a result of those damages, the uninsured losses of
9 the commonwealth or political subdivision shall be paid first
10 and the insurer, guarantor or surety shall recover its
11 reimbursement and direct payments to claimants before further
12 distribution is made under this act.
13 Section 517. Expenses.
14 If the Commonwealth, political subdivision or qui tam
15 plaintiff prevails in or settles any action under this act, the
16 qui tam plaintiff shall receive an amount for all reasonable
17 expenses incurred in the prosecution of the claim, including
18 expert witness fees plus reasonable litigation costs and
19 attorney fees. All expenses, costs and attorney fees shall be
20 awarded against the defendant, and under no circumstances shall
21 they be the responsibility of the prosecuting authority.
22 CHAPTER 7
23 GENERAL PROVISIONS
24 Section 701. Rules of civil procedure.
25 Except where this act provides otherwise, actions under this
26 act shall be governed by the Pennsylvania Rules of Civil
27 Procedure.
28 Section 702. Stay of discovery.
29 (a) General rule.--The court may stay discovery for a period
30 of not more than 90 days if the prosecuting authority OR THE <--
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1 GENERAL COUNSEL shows that discovery would interfere with an 2 investigation or a prosecution of a criminal or civil matter 3 arising out of the same or similar facts, regardless of whether 4 the prosecuting authority proceeds with the action. Such a 5 showing shall be conducted in camera. The court may extend the 6 90-day period upon a further showing in camera that the 7 prosecuting authority OR THE GENERAL COUNSEL has pursued the <-- 8 criminal or civil investigation or proceedings with reasonable 9 diligence and that any proposed discovery in the action under 10 this act would interfere with the ongoing criminal or civil 11 investigation or proceedings. 12 (b) Criminal action.--When a criminal action has commenced 13 based upon the same or similar facts underlying the pending 14 action under this act, discovery by the defendant in the pending 15 action under this act shall be confined to that available to a 16 criminal defendant under the Rules of Criminal Procedure and the 17 United States and the Constitution of the Commonwealth of 18 Pennsylvania. The defendant in the pending action under this act 19 may petition the court for a stay of proceedings pending the 20 conclusion of the criminal action. on the ground that <-- 21 restriction of discovery has substantially impaired the 22 defendant in presenting a defense in the pending action under 23 this act. 24 Section 703. Limitations on participation. 25 Upon a showing by the prosecuting authority by a 26 preponderance of the evidence that unrestricted participation 27 during the course of the litigation by the person initiating the 28 action would interfere with or unduly delay the prosecuting 29 authority's prosecution of the case or would be repetitious, 30 irrelevant or for purposes of harassment, the court may, in its 19990H0849B1798 - 22 -
1 discretion, impose limitations on the person's participation, 2 including, but not limited to, the following: 3 (1) limiting the number of witnesses the person may 4 call; 5 (2) limiting the length of the testimony of these 6 witnesses; 7 (3) limiting the person's cross-examination of 8 witnesses; or 9 (4) otherwise limiting the participation by the person 10 in the litigation. 11 Section 704. Employee protection. 12 (a) Disclosing information.--No employer shall solicit, 13 attempt or conspire to prevent, make, adopt or enforce any rule, 14 regulation or policy preventing an employee from disclosing 15 information to a Federal, State or local law enforcement agency 16 or from acting in furtherance of the investigation of, 17 initiation of, testimony in or assistance in filing an action 18 under this act. 19 (b) Discrimination.--No employer shall discharge, demote, 20 suspend, threaten, harass, deny promotion to or in any other 21 manner discriminate, or solicit, attempt or conspire to 22 discriminate against an employee in the terms of and conditions 23 of employment because of lawful acts done by the employee on 24 behalf of the employee or others in disclosing information to a 25 Federal, State or local government or law enforcement agency or 26 in furthering false claims action, including investigation for, 27 initiation of, testimony for or assistance in an action filed or 28 to be filed under this act. 29 (c) Penalty.--An employer who violates subsection (a) or (b) 30 shall be liable for all relief necessary to make the employee 19990H0849B1798 - 23 -
1 whole, including reinstatement with the same seniority status 2 that the employee would have had but for the discrimination, 3 three times the amount of back pay, prevailing interest on the 4 back pay, compensation for any special damage sustained as a 5 result of the discrimination and, where appropriate, punitive 6 damages. In addition, the employer shall be required to pay all 7 litigation costs and reasonable attorney fees. An employee may 8 bring an action in the Commonwealth Court for the relief 9 provided in this subsection. 10 (d) Limitations.--An employee who is discharged, demoted, 11 suspended, harassed, denied promotion, threatened with 12 termination or in any other manner discriminated against in the 13 terms and conditions of employment by his employer because of 14 participation in conduct which directly or indirectly resulted 15 in a false claim being submitted to the Commonwealth or a 16 political subdivision shall be entitled to the remedies under 17 subsection (c) if the employee voluntarily discloses information 18 to a Federal, State or local government or law enforcement 19 agency or acted in furtherance of a false claims action, 20 including investigation for, initiation of, testimony for or 21 assistance in an action filed or to be filed. 22 Section 705. Limitations. 23 (a) Time of filing.--An action under this act may not be 24 filed more than six years after the date on which the violation 25 of this act is completed or more than three years after the date 26 of discovery by the prosecuting authority, but in any event no 27 more than ten years after the date on which the violation of 28 section 301 is completed. 29 (b) Prior acts.--An action under this act may be brought 30 regarding false claims made prior to the effective date of this 19990H0849B1798 - 24 -
1 act if the limitations period set forth in subsection (a) has 2 not elapsed. 3 (c) Proof.--In any action brought under this act, the 4 Commonwealth, the political subdivision or the qui tam plaintiff 5 shall be required to prove all essential elements of the cause 6 of action, including damages, by a preponderance of the 7 evidence. 8 (d) Estoppel.--Notwithstanding any other provision of law, a 9 guilty verdict, guilty plea or nolo contendere plea rendered in 10 a criminal proceeding which alleged a scheme to obtain funds 11 fraudulently from the Commonwealth or a political subdivision 12 shall estop the defendant from denying the essential elements of 13 the offense in any action which involves the same transaction as 14 in the criminal proceeding and which is brought under this act. 15 Section 706. Remedies. 16 (a) Civil remedies.-- 17 (1) The Commonwealth Court shall have jurisdiction to 18 prevent and restrain violations of section 301 by issuing 19 appropriate orders, including, but not limited to: 20 (i) Ordering any person to divest himself of any 21 interest, direct or indirect, in any business or entity; 22 imposing reasonable restrictions on the future activities 23 or investments of any person, including, but not limited 24 to, prohibiting any person from engaging in the same type 25 of endeavor or freezing the person's assets. 26 (ii) Making due provisions for the rights of 27 innocent persons, ordering the dissolution of any 28 business or entity, ordering the denial, suspension or 29 revocation of charters of domestic corporations, 30 certificates of authority authorizing foreign 19990H0849B1798 - 25 -
1 corporations to do business in this Commonwealth, 2 licenses, permits or prior approval granted to any 3 business or entity by any department or agency of the 4 Commonwealth or any of its political subdivisions; or 5 prohibiting any business or entity from engaging in any 6 business. 7 (2) Injunctions against false claims: 8 (i) If a person violates or is about to violate this 9 act, the prosecuting authority may commence an action in 10 Commonwealth Court to enjoin such violation. 11 (ii) If a person alienates or disposes of property, 12 or intends to alienate or dispose of property obtained as 13 a result of a violation of this act or property which is 14 traceable to such violation, the prosecuting authority 15 may commence an action in Commonwealth Court to enjoin 16 such alienation or disposition of property, or for a 17 restraining order to prohibit any person from 18 withdrawing, transferring, removing, dissipating or 19 disposing of any such property or property of equivalent 20 value and appoint a temporary receiver to administer such 21 restraining order. 22 (3) In any proceeding under this section, the court 23 shall proceed as soon as practicable to the hearing and 24 determination thereof. Pending final determination, the court 25 may enter preliminary or special injunctions or take such 26 other actions, including the acceptance of satisfactory 27 performance bonds, as it may deem proper. 28 (b) Remedies cumulative.--The provisions of this act are not 29 exclusive, and the remedies provided for in this act shall be in 30 addition to any other remedies provided for in any other law or 19990H0849B1798 - 26 -
1 available under common law. 2 Section 707. Enforcement. 3 (a) Prosecuting authority.--The prosecuting authority shall 4 have the power and duty to enforce this act, including the 5 authority to issue civil investigative demands pursuant to this 6 act, to institute proceedings under this act and to take such 7 actions as may be necessary to ascertain and investigate alleged 8 violations of this act. The prosecuting authority may delegate 9 its powers to investigate and prosecute actions under this act 10 to appropriate Deputy Attorneys General or deputy or assistant 11 district attorneys. 12 (b) Construction.--Nothing contained in this act shall be 13 construed to limit the regulatory or investigative authority of 14 any department or agency of the Commonwealth or political 15 subdivision whose functions might relate to persons, enterprises 16 or matters falling within the scope of this act. 17 Section 708. Civil investigative demand. 18 (a) General rule.--Whenever the prosecuting authority has 19 reason to believe that any person may be in possession, custody 20 or control of any documentary material or information relevant 21 to a false claim investigation, the prosecuting authority may 22 issue in writing and cause to be served upon the person a civil 23 investigative demand requiring such person to: 24 (1) produce such documentary material for inspection and 25 copying; 26 (2) answer in written interrogatories with respect to 27 such documentary material or information; 28 (3) give oral testimony concerning such documentary 29 material or information; or 30 (4) furnish any combination of such material, answers 19990H0849B1798 - 27 -
1 and testimony. 2 (b) Content.--Each demand under this section shall: 3 (1) State the nature of the conduct constituting the 4 alleged false claim violation which is under investigation 5 and the provision of law applicable thereto. 6 (2) If the demand is for the production of documentary 7 material: 8 (i) describe the class or classes of documentary 9 material to be produced thereunder with such definiteness 10 and certainty as to permit the material to be fairly 11 identified; 12 (ii) state that the demand is returnable forthwith 13 or prescribe a return date which will provide a 14 reasonable period of time within which the material so 15 demanded may be assembled and made available for 16 inspection and copying or reproduction; and 17 (iii) identify an investigator to whom the material 18 shall be made available. 19 (3) If the demand is for written interrogatories: 20 (i) set forth with specificity the written 21 interrogatories to be answered; 22 (ii) prescribe dates at which time answers to 23 written interrogatories shall be submitted; and 24 (iii) identify the investigator to whom such answers 25 shall be submitted. 26 (4) If such demand is for the giving of oral testimony: 27 (i) prescribe a date, time and place at which oral 28 testimony should be commenced; 29 (ii) identify the investigator who shall conduct the 30 examination and the person to whom the transcript of such 19990H0849B1798 - 28 -
1 investigation shall be submitted; 2 (iii) specify that such attendance and testimony are 3 necessary to the conduct of the investigation; and 4 (iv) describe the general purpose for which the 5 demand is being issued and the general nature of the 6 testimony, including the primary areas of inquiry, which 7 will be taken pursuant to the demand. 8 (5) Contain the following statement printed 9 conspicuously at the top of the demand: 10 You have the right to seek the assistance of any 11 attorney, and he may represent you in all phases of 12 the false claim investigation of which this civil 13 investigative demand is a part. 14 (c) Limitation.--No demand under this section shall: 15 (1) contain any requirement which would be held to be 16 unreasonable if contained in a subpoena duces tecum issued by 17 any court in connection with a grand jury investigation of 18 the alleged fraud violation; or 19 (2) require the production of any documentary evidence 20 which would be privileged from disclosure if demanded by a 21 subpoena duces tecum issued by any court in connection with a 22 grand jury investigation of the alleged false claim 23 violation. 24 (d) Service.--Service of any demand or any petition filed 25 under this section shall be made in the manner prescribed by the 26 Pennsylvania Rules of Civil Procedure for service of writs and 27 complaints unless otherwise agreed to by the prosecuting 28 authority and the person. 29 (e) Return.--A verified return by the individual serving any 30 demand or petition under this section setting forth the manner 19990H0849B1798 - 29 -
1 of service shall be prima facie proof of such service. In the 2 case of service by registered or certified mail, the return 3 shall be accompanied by the return post office receipt of 4 delivery of the demand. 5 (f) Procedure.-- 6 (1) A person upon whom a demand issued under this 7 section has been duly served shall make the demanded material 8 available for inspection and copying or reproduction to an 9 investigator designated in the demand at the principal place 10 of business of the person or at such other place as the 11 investigator and the person thereafter may agree or as the 12 court may direct pursuant to this section on the return date 13 specified in the demand. The person may, upon agreement of 14 the investigator, substitute copies of all or any part of the 15 demanded material for the originals of the demanded material. 16 (2) The investigator to whom any documentary material is 17 so delivered shall take physical possession of the material 18 and shall be responsible for the use made of the material and 19 for its return pursuant to this section. The investigator may 20 cause the preparation of the copies of the documentary 21 material as may be required for official use. While in the 22 possession of the investigator, no material so produced shall 23 be available for examination by any individual other than the 24 prosecuting authority or any investigator without the consent 25 of the person who produced the material. Under such 26 reasonable terms and conditions as the prosecuting authority 27 shall prescribe, documentary material while in the possession 28 of the investigator shall be available for examination by the 29 person who produced the material or any duly authorized 30 representatives of that person. 19990H0849B1798 - 30 -
1 (3) The production of documentary material in response 2 to a civil investigative demand served under this section 3 shall be made under a sworn certificate, in such form as the 4 demand designates, by: 5 (i) in the case of a natural person, the person to 6 whom the demand is directed; or 7 (ii) in the case of a person other than a natural 8 person, a person having knowledge of the facts and 9 circumstances relating to such production and authorized 10 to act on behalf of such person. 11 The certificate shall state that all of the documentary 12 material required by the demand and in the possession, 13 custody or control of the person to whom the demand is 14 directed has been produced and made available to the 15 investigator identified in the demand. 16 (4) Each interrogatory in a civil demand served under 17 this section shall be answered separately and fully in 18 writing under oath and shall be submitted under a sworn 19 certificate, in such form as the demand designates, by: 20 (i) in the case of a natural person, the person to 21 whom the demand is directed; or 22 (ii) in the case of a person other than a natural 23 person, a person or persons responsible for answering 24 each interrogatory. If any interrogatory is objected to, 25 the reasons for the objection shall be stated in the 26 certificate instead of an answer. The certificate shall 27 state that all information required by the demand and in 28 the possession, custody, control or knowledge of the 29 person to whom the demand is directed has been submitted. 30 To the extent that any information is not furnished, the 19990H0849B1798 - 31 -
1 information shall be identified and reasons set forth 2 with particularity regarding the reasons why the 3 information was not furnished. 4 (5) (i) The examination of any person pursuant to a 5 civil investigative demand for oral testimony served 6 under this section shall be deemed an "official 7 proceeding" within the meaning of 18 Pa.C.S. § 4902(a) 8 (relating to perjury). The examination shall be taken 9 before an officer authorized to administer oaths and 10 affirmations by the laws of this Commonwealth. The 11 officer before whom the testimony is to be taken shall 12 put the witness on oath or affirmation and shall, 13 personally or by someone acting under the direction of 14 the officer and in the officer's presence, record the 15 testimony of the witness. The testimony shall be taken 16 accurately and shall be transcribed. When the testimony 17 is fully transcribed, a copy of the transcript shall be 18 promptly forwarded to the designated person. This 19 subsection shall not preclude the taking of testimony by 20 any means authorized by, and in a manner consistent with, 21 the Pennsylvania Rules of Civil Procedure. 22 (ii) The investigator conducting the examination 23 shall exclude from the place where the examination is 24 held all persons except the person giving the testimony, 25 the attorney for and any other representative of the 26 person giving the testimony, the prosecuting authority, 27 any person who may be agreed upon by the prosecuting 28 authority and the person giving the testimony, and any 29 stenographer taking such testimony. 30 (iii) The oral testimony of any person taken 19990H0849B1798 - 32 -
1 pursuant to a civil investigative demand served under 2 this section shall be taken in the county where the 3 office of the investigator conducting the examination is 4 situated, or in such other place as may be agreed upon by 5 the investigator and such person. 6 (iv) When the testimony is fully transcribed, the 7 investigator shall afford the witness, who may be 8 accompanied by counsel, a reasonable opportunity to 9 examine and read the transcript, unless such examination 10 and reading are waived by the witness. Any changes in 11 form or substance which the witness desires to make shall 12 be entered and identified upon the transcript by the 13 officer or the investigator, with a statement of the 14 reasons given by the witness for making such changes. The 15 transcript shall then be signed by the witness, unless 16 the witness in writing waives the signing, is ill, cannot 17 be found or refuses to sign. If the transcript is not 18 signed by the witness within 30 days after being afforded 19 a reasonable opportunity to examine it, the officer or 20 the investigator shall sign it and state on the record 21 the fact of the waiver, illness, absence of the witness 22 or the refusal to sign, together with the reasons, if 23 any, given therefor. 24 (v) Upon payment of reasonable charges therefor, the 25 investigator shall furnish a copy of the transcript to 26 the witness only, except that the prosecuting authority 27 may, for good cause, limit such witness to inspection of 28 the official transcript of the witness' testimony. 29 (vi) Any person compelled to appear for oral 30 testimony under a civil investigative demand may be 19990H0849B1798 - 33 -
1 accompanied, represented and advised by counsel. Counsel 2 may advise the person, in confidence, with respect to any 3 question asked of that person. The person or counsel may 4 object on the record to any question, in whole or in 5 part, and shall briefly state for the record the reason 6 for the objection. An objection may be made, received and 7 entered upon the record when it is claimed that such 8 person is entitled to refuse to answer the question on 9 the grounds of any constitutional or other legal right or 10 privilege, including the privilege against self- 11 incrimination. The person may not otherwise object to or 12 refuse to answer any question, and may not directly or 13 through counsel otherwise interrupt the oral examination. 14 If the person refuses to answer any question, a petition 15 may be filed in the Commonwealth Court under section 16 708(g) for an order compelling the person to answer the 17 question. 18 (6) Upon completion of: 19 (i) the false claims investigation for which any 20 documentary material was produced under this section; and 21 (ii) any case or proceeding arising from such 22 investigation; 23 the investigator shall return to the person who produced the 24 material all of the material other than copies of the 25 material made pursuant to this section which have not passed 26 into the control of any court or grand jury through 27 introduction into the record of such case or proceeding. 28 (7) When documentary material has been produced by a 29 person under this section for use in a false claims 30 investigation and no case or proceeding arising from the 19990H0849B1798 - 34 -
1 investigation has been instituted within a reasonable time 2 after completion of the examination and analysis of all 3 evidence assembled in the course of the investigation, the 4 person shall be entitled, upon written demand made upon the 5 prosecuting authority, to the return of all documentary 6 material, other than copies of the material made pursuant to 7 this section, so produced by that person. 8 (g) Failure to comply.--Whenever a person fails to comply 9 with a civil investigative demand that is served upon him under 10 this section or whenever satisfactory copying or reproduction of 11 any of the material cannot be done and the person refuses to 12 surrender the material, the prosecuting authority may file in 13 the Commonwealth Court and serve upon the person a petition for 14 an order of the court for the enforcement of this section. 15 (h) Petition for relief.-- 16 (1) Within 20 days after the service of any demand under 17 this section upon any person or at any time before the return 18 date specified in the demand, whichever period is shorter, 19 the person may file in the Commonwealth Court and serve upon 20 the prosecuting authority a petition for an order of the 21 court modifying or setting aside this demand. The time 22 allowed for compliance with the demand, in whole or in part, 23 as deemed proper and ordered by the court shall not run 24 during the pendency of the petition in the court. The 25 petition shall specify each ground upon which the petitioner 26 relies in seeking the relief and may be based on any failure 27 of the demand to comply with the provisions of this section 28 or on any constitutional or other legal right or privilege of 29 the person. 30 (2) At any time during which the prosecuting authority 19990H0849B1798 - 35 -
1 is in custody or control of documentary material delivered by 2 a person in compliance with a demand under this section, the 3 person may file in the Commonwealth Court and serve upon the 4 prosecuting authority a petition for an order of the court 5 requiring the performance of any duty imposed by this 6 section. 7 (3) Whenever a petition is filed in the Commonwealth 8 Court, the court shall have jurisdiction to hear and 9 determine the matter so presented and, after a hearing at 10 which all parties are represented, to enter such order or 11 orders as may be required to carry into effect the provisions 12 of this section. 13 (i) Definition.--As used in this section, the term 14 "documentary material" includes, but is not limited to, any 15 book, paper, record, recording, tape, report, memorandum, data, 16 written or electronic communication or other document relating 17 to the business affairs of any person, enterprise or matter 18 falling within the purview of this act. 19 Section 709. Immunity. 20 Whenever any individual refuses on the basis of his privilege 21 against self-incrimination to comply with a civil investigative 22 demand issued pursuant to this act or to testify or produce 23 other information in a proceeding under this act, the 24 prosecuting authority may invoke the provisions of 42 Pa.C.S. § 25 5947 (relating to immunity of witnesses). 26 Section 710. Regulations. 27 (a) General rule.--The Attorney General shall have the power 28 and authority to promulgate rules and regulations which may be 29 necessary to carry out the purposes set forth in this act. 30 (b) Guidelines.--In order to facilitate the speedy 19990H0849B1798 - 36 -
1 implementation of this act, the Attorney General shall have the 2 power and authority to promulgate, adopt and use guidelines 3 which shall be published in the Pennsylvania Bulletin. The 4 guidelines shall not be subject to review pursuant to section 5 205 of the act of July 31, 1968 (P.L.769, No.240), referred to 6 as the Commonwealth Documents Law, sections 204(b) and 301(10) 7 of the act of October 15, 1980 (P.L.950, No.164), known as the 8 Commonwealth Attorneys Act, the act of June 25, 1982 (P.L.633, 9 No.181), known as the Regulatory Review Act, and shall be 10 effective for a period of not more than two years from the 11 effective date of this act. After the expiration of the two-year 12 period, the guidelines shall expire and be replaced by 13 regulations which shall be promulgated, adopted and published as 14 provided by law. 15 Section 711. Effective date. 16 This act shall take effect in 60 days. A28L44DMS/19990H0849B1798 - 37 -