PRINTER'S NO. 640
No. 574 Session of 2007
INTRODUCED BY MANN, ARGALL, BAKER, BENNINGHOFF, BEYER, CALTAGIRONE, CLYMER, COSTA, CREIGHTON, DALEY, DeLUCA, DENLINGER, EACHUS, FRANKEL, FREEMAN, GALLOWAY, GODSHALL, GOODMAN, HARRIS, HENNESSEY, HERSHEY, HUTCHINSON, KULA, MURT, MUSTIO, O'NEILL, PALLONE, PEIFER, PETRI, PETRONE, PYLE, SCAVELLO, SIPTROTH, SOLOBAY, STERN, SWANGER, VEREB, WALKO AND WOJNAROSKI, MARCH 6, 2007
REFERRED TO COMMITTEE ON JUDICIARY, MARCH 6, 2007
AN ACT 1 Amending Title 42 (Judiciary and Judicial Procedure) of the 2 Pennsylvania Consolidated Statutes, prohibiting profits 3 received by third-party persons from the commission of a 4 crime. 5 The General Assembly of the Commonwealth of Pennsylvania 6 hereby enacts as follows: 7 Section 1. Section 8312 of Title 42 of the Pennsylvania 8 Consolidated Statutes is amended to read: 9 § 8312. Profits received as a result of commission of crime. 10 (a) General rule.--If a person has been convicted of a 11 crime, every person who knowingly contracts for, pays or agrees 12 to pay any profit from a crime to that person or a third party 13 shall give written notice to the [board] office of the payment 14 or obligation to pay as soon as practicable after discovering 15 that the payment or intended payment is a profit from a crime. 16 The [board] office, upon receipt of notice of a contract, an
1 agreement to pay or payment of profits from a crime, shall 2 notify all known eligible persons at their last known address of 3 the existence of the profits. 4 (b) Right of action.--Notwithstanding any inconsistent 5 provision of law or rules of civil procedure with respect to the 6 timely bringing of an action, any eligible person shall have the 7 right to bring a civil action in a court of competent 8 jurisdiction to recover money damages from a person convicted of 9 a crime or third party or the legal representative of that 10 convicted person or third party within three years of the 11 discovery of any profits from a crime. Any damages awarded in 12 this action shall be recoverable only up to the value of the 13 profits from the crime. If an action is filed under this 14 subsection after the expiration of all other applicable statutes 15 of limitation, any other eligible person must file any action 16 for damages as a result of the crime within three years of the 17 actual discovery of profits from the crime or of actual notice 18 received from or notice published by the [board] office of the 19 discovery, whichever is later. If any profits from a crime 20 remain after the payment of claims made under this section, the 21 [board] office shall have the right to bring a civil action 22 within two years in a court of competent jurisdiction to recover 23 any payments made by the [board] office pursuant to [Article IV 24 of the act of April 9, 1929 (P.L.177, No.175), known as The 25 Administrative Code of 1929,] the act of November 24, 1998 26 (P.L.882, No.111), known as the Crime Victims Act, and any 27 expenses incurred by the [board] office pursuant to [Article IV 28 of The Administrative Code of 1929] the Crime Victims Act or 29 this section with regard to such crime or the person convicted 30 of such crime. 20070H0574B0640 - 2 -
1 (c) Notice.--Upon filing an action under subsection (b), the 2 eligible person shall give notice to the [board] office of the 3 filing by delivering a copy of the complaint to the [board] 4 office. The eligible person may also give notice to the [board] 5 office prior to filing the action so as to allow the [board] 6 office to apply for any appropriate remedies which are otherwise 7 authorized to be invoked prior to the commencement of an action. 8 (d) Responsibilities of [board] office.--Upon receipt of a 9 copy of a complaint, the [board] office shall immediately take 10 action as necessary to: 11 (1) Notify all other known eligible persons of the 12 alleged existence of profits from a crime by certified mail, 13 return receipt requested, where the eligible persons' names 14 and addresses are known by the [board] office. 15 (2) Publish, at least once a year for three years from 16 the date it is initially notified by an eligible person under 17 subsection (c), a legal notice in newspapers of general 18 circulation in the county wherein the crime was committed and 19 in counties contiguous to that county advising any eligible 20 persons of the existence of profits from a crime. The [board] 21 office may in its discretion provide for additional notice as 22 it deems necessary. 23 (3) Avoid the wasting of the assets identified in the 24 complaint as the newly discovered profits from a crime in any 25 manner consistent with subsection (e). 26 (e) Other remedies.--The [board] office, acting on behalf of 27 all eligible persons, shall have the right to apply for any and 28 all remedies that are also otherwise available to an eligible 29 person bringing an action under subsection (b). The remedies of 30 attachment, injunction, receivership and notice of pendency 20070H0574B0640 - 3 -
1 available under law to an eligible person bringing an action 2 under subsection (b) shall also be available to the [board] 3 office in all actions under this subsection. On a motion for a 4 remedy, the moving party shall state whether any other remedy 5 has previously been sought in the same action against the same 6 defendant or third party. The court may require the moving party 7 to elect between those remedies to which it would otherwise be 8 entitled. 9 (e.1) Receipt of victims' compensation.--The office may seek 10 repayment from an eligible person recovering damages under this 11 section who has received an award for victims' compensation 12 under the Crime Victims Act in accordance with the provisions of 13 the Crime Victims Act. 14 (f) Evasive action null and void.--Any action taken by any 15 person convicted of a crime, or by a third party subject to the 16 provisions of this section, whether by way of execution of a 17 power of attorney, creation of corporate entities or otherwise, 18 to defeat the purpose of this section shall be null and void as 19 against the public policy of this Commonwealth. 20 (g) Penalties.-- 21 (1) Any person subject to the provisions of this section 22 who willfully fails to do any of the following is subject to 23 a civil penalty of not less than $10,000 for each offense and 24 not more than an amount equal to three times the contract 25 amount: 26 (i) submit to the [board] office a copy of the 27 contract described in subsection (a); or 28 (ii) pay over to the [board] office any moneys or 29 other consideration as required by this section. 30 (2) If two or more persons are subject to the penalties 20070H0574B0640 - 4 -
1 provided in this section, the persons shall be jointly and 2 severally liable for the payment of the penalty imposed. 3 (3) After notice and opportunity to be heard is 4 provided, the [board] office may by order assess the 5 penalties described in this section. 6 (4) If the penalties are not paid within 30 days from 7 the date of the order, any penalty assessed under this 8 section shall bear interest at the rate of 1% per month, 9 compounded monthly. 10 (5) An action to recover a civil penalty assessed under 11 this section may be brought by the [board] office in a court 12 of competent jurisdiction within six years after the cause of 13 action accrues. 14 (6) Any moneys recovered under this subsection shall be 15 paid into the Crime Victim's Compensation Fund. 16 (g.1) Exceptions.--The provisions of this section do not 17 apply to profits received by a third party when: 18 (1) The crime was committed against a public figure. 19 (2) The third party receiving the profit obtains the 20 written consent of the victim of the crime or the victim's 21 closest surviving family member by blood, marriage or 22 adoption. 23 (3) The profit is generated by an item of publication. 24 The publisher shall not be required to obtain written consent 25 of the victim of the crime or the victim's closest surviving 26 family member by blood, marriage or adoption when the 27 information serving as the basis for the publication is 28 obtained from records in the public domain. Nothing in this 29 subsection shall be construed to permit or deny publication 30 by the person convicted of the crime or the legal 20070H0574B0640 - 5 -
1 representative of that convicted person. 2 (g.2) Severability.--The provisions of this section are 3 severable, and, if any word, phrase, clause, sentence, 4 subsection or provision of the section is for any reason held to 5 be unconstitutional, the decision of the court shall not affect 6 or impair any of the remaining provisions of this section. It is 7 hereby declared as the legislative intent that this section 8 would have been adopted had such unconstitutional word, phrase, 9 clause, sentence, subsection or provision not been included. 10 (h) Definitions.--As used in this section, the following 11 words and phrases shall have the meanings given to them in this 12 subsection: 13 ["Board." The Crime Victim's Compensation Board as defined 14 in section 477 of the act of April 9, 1929 (P.L.177, No.175), 15 known as The Administrative Code of 1929.] 16 "Convicted." Includes conviction by entry of a plea of 17 guilty or nolo contendere, conviction after trial and a finding 18 of not guilty due to insanity or of guilty but mentally ill. 19 "Eligible person." Includes any of the following persons: 20 (1) A direct victim of the particular crime in question, 21 as ["victim"] "direct victim" is defined in section [479.1 of 22 the act of April 9, 1929 (P.L.177, No.175), known as The 23 Administrative Code of 1929] 103 of the act of November 24, 24 1998 (P.L.882, No.111), known as the Crime Victims Act. 25 (2) An intervenor in such crime. 26 (3) A surviving spouse, parent or child of a deceased 27 victim of or intervenor in such crime. 28 (4) Any other person dependent for his principal support 29 upon a deceased victim of or intervenor in such crime. 30 No person who is criminally responsible for the crime in 20070H0574B0640 - 6 -
1 question or was an accomplice of the person who is criminally 2 responsible shall be an eligible person. 3 "Item of publication." Includes, but is not limited to, any 4 item appearing in a newspaper, periodical, magazine, journal, 5 textbook, book or other reading matter, film, motion picture, 6 television program, videotape, sound recording, interview, radio 7 program or live presentation of any kind. 8 "Office." The Office of Victim Services in the Department of 9 Corrections. 10 "Profit from a crime." Includes any of the following: 11 (1) Any property obtained through or income generated 12 from the commission of a crime of which the defendant was 13 convicted. 14 (2) Any property obtained by or income generated from 15 the sale, conversion or exchange of proceeds of a crime of 16 which the defendant was convicted, including any gain 17 realized by such sale, conversion or exchange. 18 (3) Any property which the defendant obtained or income 19 generated as a result of having committed the crime of which 20 the defendant was convicted, including any assets obtained 21 through the use of unique knowledge obtained during the 22 commission of or in preparation for the commission of the 23 crime, as well as any property obtained by or income 24 generated from the sale, conversion or exchange of such 25 property and any gain realized by such sale, conversion or 26 exchange. 27 (4) Any property, memorabilia or income generated from 28 the sale, conversion or exchange of such property or 29 memorabilia the value of which is increased by the notoriety 30 gained from the commission of the crime, including, but not 20070H0574B0640 - 7 -
1 limited to, personal property or memorabilia of the defendant 2 or personal property or memorabilia of a third-party person 3 which has a relationship to the defendant or the commission 4 of the crime. 5 The term shall not include any item of publication, property or 6 memorabilia that has expressive value or is protected by the 7 first amendment to the Constitution of the United States or 8 income generated from any item of publication, property or 9 memorabilia that has expressive value or is protected by the 10 first amendment. 11 "Public figure." The term shall include, but is not limited 12 to, a person who holds any elected or appointed public office or 13 any person who is deemed to have been publicly famous or 14 infamous because of who the person is or what the person has 15 done prior to the commission of the crime. The term does not 16 include a person who becomes publicly famous or infamous as a 17 result of the commission of the crime. 18 "Third party." Includes any person except for an eligible 19 person or a person convicted of the crime. 20 Section 2. This act shall take effect in 60 days. L27L42SFL/20070H0574B0640 - 8 -