SENATE AMENDED
PRIOR PRINTER'S NO. 2439
PRINTER'S NO. 4625
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1737
Session of
2019
INTRODUCED BY GLEIM, HELM, ECKER AND M. K. KELLER,
SEPTEMBER 12, 2019
AS AMENDED ON THIRD CONSIDERATION, IN SENATE, NOVEMBER 19, 2020
AN ACT
Amending the act of May 19, 1995 (P.L.33, No.3), entitled "An
act limiting environmental liability for economic development
agencies, financiers and fiduciaries," further providing for
definitions.
AMENDING TITLE 42 (JUDICIARY AND JUDICIAL PROCEDURE) OF THE
PENNSYLVANIA CONSOLIDATED STATUTES, IN PARTICULAR RIGHTS AND
IMMUNITIES, PROVIDING FOR ECONOMIC DEVELOPMENT AGENCY,
FIDUCIARY AND LENDER ENVIRONMENTAL LIABILITY PROTECTION, FOR
AGRITOURISM ACTIVITY PROTECTION AND FOR COVID-19-RELATED
LIABILITY; AND MAKING A RELATED REPEAL.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The definition of "economic development agencies"
in section 3 of the act of May 19, 1995 (P.L.33, No.3), known as
the Economic Development Agency, Fiduciary and Lender
Environmental Liability Protection Act, is amended to read:
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
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"Economic development [agencies] agency." The term includes:
(1) Any redevelopment authority created under the act of
May 24, 1945 (P.L.991, No.385), known as the Urban
Redevelopment Law, and any nonprofit corporation created and
controlled by a redevelopment authority to carry out its
statutory purpose.
(2) Any industrial development agency as that term is
defined in the act of May 17, 1956 (1955 P.L.1609, No.537),
known as the Pennsylvania Industrial Development Authority
Act.
(3) Any industrial and commercial development authority
created under the act of August 23, 1967 (P.L.251, No.102),
known as the Economic Development Financing Law.
(4) Any area loan organization as that term is defined
in the act of July 2, 1984 (P.L.545, No.109), known as the
Capital Loan Fund Act.
(5) Any other Commonwealth or municipal authority which
acquires title or an interest in property.
(6) [Municipalities] Any municipality or municipal
industrial development or community development [departments]
department organized by ordinance under a home rule charter
which [buy] buys and [sell] sells land for community
development purposes.
(7) [Tourist] Any tourist promotion [agencies] agency or
[their] its local community-based nonprofit sponsor which
[engage] engages in the acquisition of former industrial
sites as part of an "Industrial Heritage" or similar program.
(8) [Conservancies] Any conservancy engaged in the
renewal or reclamation of an industrial site.
(9) Any land bank established under 68 Pa.C.S. Ch. 21
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(relating to land banks).
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Section 2. This act shall take effect in 60 days.
SECTION 1. CHAPTER 83 OF TITLE 42 OF THE PENNSYLVANIA
CONSOLIDATED STATUTES IS AMENDED BY ADDING SUBCHAPTERS TO READ:
SUBCHAPTER F.2
ECONOMIC DEVELOPMENT AGENCY, FIDUCIARY AND LENDER
ENVIRONMENTAL LIABILITY PROTECTION
SEC.
8368.11. SCOPE OF SUBCHAPTER.
8368.12. DECLARATION OF POLICY.
8368.13. DEFINITIONS.
8368.14. LIMITATION OF ECONOMIC DEVELOPMENT AGENCY ENVIRONMENTAL
LIABILITY.
8368.15. LIMITATION OF LENDER ENVIRONMENTAL LIABILITY.
8368.16. LIMITATION OF FIDUCIARY ENVIRONMENTAL LIABILITY.
8368.17. DEFENSES TO LIABILITY.
8368.18. SAVINGS CLAUSE.
8368.19. APPORTIONMENT OF LIABILITY.
8368.20. CONSTRUCTION.
8368.21. SEVERABILITY.
8368.22. PREEMPTION AND REPEALS.
8368.23. APPLICABILITY.
§ 8368.11. SCOPE OF SUBCHAPTER.
THIS SUBCHAPTER RELATES TO ECONOMIC DEVELOPMENT AGENCY,
FIDUCIARY AND LENDER ENVIRONMENTAL LIABILITY PROTECTION.
§ 8368.12. DECLARATION OF POLICY.
THE GENERAL ASSEMBLY FINDS AND DECLARES AS FOLLOWS:
(1) THE COMMONWEALTH HAS PROVIDED GRANT AND LOAN MONEY
TO A VARIETY OF ECONOMIC DEVELOPMENT AGENCIES, ALL FOR THE
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PURPOSE OF ASSISTING THESE AGENCIES IN THEIR EFFORTS TO
PROMOTE THE GENERAL WELFARE OF THIS COMMONWEALTH BY
ENCOURAGING ECONOMIC DEVELOPMENT AND INDUSTRIAL REDEVELOPMENT
THROUGHOUT THIS COMMONWEALTH.
(2) ECONOMIC DEVELOPMENT AGENCIES ACQUIRE TITLE TO
INDUSTRIAL PROPERTY FOR FINANCING PURPOSES ONLY AND LEASE OR
SELL THE SAME TO INDUSTRIAL OCCUPANTS WHO HAVE SOLE
POSSESSION OF THE FACILITIES FOR AN AMOUNT OF RENT OR
INSTALLMENT PAYMENTS UNDER AN INSTALLMENT SALE CONTRACT WHICH
IS DETERMINED SOLELY ON A BASIS OF MEETING THE COSTS OF THE
FINANCING AND OTHER COSTS ASSOCIATED WITH OWNERSHIP UNRELATED
TO PROFIT.
(3) ECONOMIC DEVELOPMENT AGENCIES ACQUIRE POSSESSION OF
THESE INDUSTRIAL SITES FROM TIME TO TIME WHEN THE INDUSTRIAL
OCCUPANT DEFAULTS UNDER ITS OBLIGATIONS TO THE AGENCIES UNDER
ITS LEASE OR INSTALLMENT SALES AGREEMENTS.
(4) ECONOMIC DEVELOPMENT AGENCIES ACQUIRE INDUSTRIAL
PROPERTY EITHER FOR THE PURPOSE OF FINANCING OR REDEVELOPMENT
BUT WITHOUT A MOTIVE FOR PROFIT OR TO OCCUPY THE PROPERTY FOR
THEIR OWN INDUSTRIAL OPERATIONS.
(5) ECONOMIC DEVELOPMENT AGENCIES ARE RELUCTANT TO
ACQUIRE TITLE TO OR OTHER INTERESTS IN PROPERTY WHETHER FOR
FINANCING OR REDEVELOPMENT PURPOSES OR TO SECURE REPAYMENT OF
OBLIGATIONS UNLESS THE ECONOMIC DEVELOPMENT AGENCIES ARE
PROTECTED FROM LIABILITY FOR ENVIRONMENTAL CONTAMINATION ON
THOSE SITES THEY SEEK TO ASSIST TO DEVELOP.
(6) THE TAKING OF LEGAL TITLE AND ANY FORECLOSURE OR
RETAKING OF POSSESSION OF PROPERTY BY AN INDUSTRIAL
DEVELOPMENT AGENCY, AREA LOAN ORGANIZATION OR INDUSTRIAL AND
COMMERCIAL DEVELOPMENT AUTHORITY IS UNDER THE FOLLOWING ACTS:
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(I) THE ACT OF MAY 17, 1956 (1955 P.L.1609, NO.537),
KNOWN AS THE PENNSYLVANIA INDUSTRIAL DEVELOPMENT
AUTHORITY ACT, WHICH EXPRESSLY REQUIRES THAT THE
PENNSYLVANIA INDUSTRIAL DEVELOPMENT AUTHORITY LOAN MONEY
TO INDUSTRIAL DEVELOPMENT AGENCIES SECURED BY NOT LESS
THAN A SECOND MORTGAGE LIEN.
(II) THE ACT OF AUGUST 23, 1967 (P.L.251, NO.102),
KNOWN AS THE ECONOMIC DEVELOPMENT FINANCING LAW, WHICH
PROVIDES FOR ISSUANCE OF DEBT BY INDUSTRIAL AND
COMMERCIAL DEVELOPMENT AUTHORITIES AND AUTHORIZES THESE
AUTHORITIES TO TAKE TITLE TO REAL PROPERTY AS SECURITY
FOR THE INDEBTEDNESS.
(III) THE ACT OF JUNE 29, 1996 (P.L.434, NO.67),
KNOWN AS THE JOB ENHANCEMENT ACT.
(7) THE MAXIMUM LEVEL OF ECONOMIC DEVELOPMENT AND
BUSINESS OPPORTUNITY AND EMPLOYMENT AND THE ELIMINATION OR
PREVENTION OF ABANDONED INDUSTRIAL AND COMMERCIAL PROPERTY
AND FEDERAL GOVERNMENT OR MILITARY LANDS WHICH CAN BEST BE
PROVIDED BY THE PROMOTION, ATTRACTION, STIMULATION,
REHABILITATION AND REVITALIZATION OF ALL TYPES OF INDUSTRY,
COMMERCE, MANUFACTURING AND BUSINESS DEVELOPMENT WITHIN THIS
COMMONWEALTH.
(8) TO CONTINUE AND FURTHER THE STIMULATION OF BUSINESS
OPPORTUNITIES AND ECONOMIC DEVELOPMENT WITHIN THIS
COMMONWEALTH AND BY WHICH CAUSE THE REUSE AND REHABILITATION
OF INDUSTRIAL AND COMMERCIAL PROPERTY, IT IS NECESSARY TO
ENSURE VARIOUS MEANS OF FINANCING TO PROMOTE ECONOMIC GROWTH
AND THE AVAILABILITY OF FIDUCIARY SERVICES TO PERSONS WITHIN
THIS COMMONWEALTH.
(9) LENDERS ARE RELUCTANT TO PROVIDE FUNDING FOR
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BUSINESS OPPORTUNITIES AND ECONOMIC DEVELOPMENT, AND
FIDUCIARIES ARE RELUCTANT TO PROVIDE SERVICES TO PERSONS WITH
ENVIRONMENTAL PROBLEMS, BECAUSE OF CATASTROPHIC RISKS OF
ENVIRONMENTAL LIABILITY AND REMEDIATION COSTS UNDER
ENVIRONMENTAL LAWS RELATING TO RELEASES AND CONTAMINATION
WHICH WERE NOT CAUSED BY LENDERS AND FIDUCIARIES.
(10) WHEN BORROWERS DEFAULT ON LOANS, LENDERS ARE
RELUCTANT TO FORECLOSE UPON COMMERCIAL PROPERTY WITH
ENVIRONMENTAL PROBLEMS BECAUSE LENDERS MAY BE FORCED TO
ASSUME COSTLY ENVIRONMENTAL LIABILITIES; THUS, COMMERCIAL
PROPERTY IS BEING ABANDONED IN THIS COMMONWEALTH AND NEW
BUSINESSES ARE UNABLE TO OBTAIN FINANCING TO PURCHASE SUCH
PROPERTIES.
(11) FAMILY BUSINESSES ARE UNABLE TO ESTABLISH TRUSTS TO
CONVEY THEIR BUSINESS INTERESTS TO THE NEXT GENERATION, AND
OTHER BUSINESSES ARE UNABLE TO RECEIVE RETIREMENT, INVESTMENT
AND OTHER TRUST SERVICES FROM FIDUCIARIES, IF FIDUCIARIES IN
THEIR PERSONAL OR INDIVIDUAL CAPACITIES MAY BE HELD LIABLE
FOR ENVIRONMENTAL CONTAMINATION CAUSED BY OTHER PERSONS
MERELY BY VIRTUE OF OWNING PROPERTY IN THEIR TRUSTEE
CAPACITIES AND PROVIDING FIDUCIARY SERVICES.
(12) IN ORDER TO CONTINUE TO STIMULATE GROWTH AND
CONTINUE THE USE OR REUSE OF INDUSTRIAL AND COMMERCIAL
PROPERTY, IT IS NECESSARY TO PROVIDE PROTECTION TO LENDERS,
FIDUCIARIES AND ECONOMIC DEVELOPMENT AGENCIES FROM
ENVIRONMENTAL LIABILITY AND REMEDIATION COSTS UNDER
ENVIRONMENTAL LAWS FOR RELEASES AND CONTAMINATION CAUSED BY
OTHERS.
(13) ENVIRONMENTAL LIABILITY FOR LENDERS, FIDUCIARIES
AND ECONOMIC DEVELOPMENT AGENCIES SHALL BE LIMITED IN SCOPE
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AS SPECIFICALLY PROVIDED IN THIS SUBCHAPTER, AND THIS
SUBCHAPTER SHALL BE INTERPRETED AS BROADLY AS POSSIBLE IN
ORDER TO PREEMPT ANY LAWS, REGULATIONS OR ORDINANCES IMPOSING
ENVIRONMENTAL LIABILITY ON THE PERSONS IN ORDER TO PROMOTE
ECONOMIC DEVELOPMENT.
§ 8368.13. DEFINITIONS.
THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS SUBCHAPTER
SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
CONTEXT CLEARLY INDICATES OTHERWISE:
"BOARD." THE ENVIRONMENTAL HEARING BOARD OF THE
COMMONWEALTH.
"BORROWER." A PERSON WHO HAS RECEIVED AN EXTENSION OF
CREDIT. THE TERM INCLUDES A DEBTOR, A LESSOR, A LESSEE OR AN
OBLIGOR.
"CONSERVANCY." A CHARITABLE CORPORATION, CHARITABLE
ASSOCIATION OR CHARITABLE TRUST:
(1) REGISTERED WITH THE BUREAU OF CORPORATIONS AND
CHARITABLE ORGANIZATIONS;
(2) EXEMPT FROM TAXATION UNDER SECTION 501(C)(3) OF THE
INTERNAL REVENUE CODE OF 1986 (PUBLIC LAW 99-514, 26 U.S.C. §
501(C)(3)) OR OTHER FEDERAL OR COMMONWEALTH STATUTES OR
REGULATIONS; AND
(3) THE PURPOSE OR POWERS OF WHICH INCLUDE:
(I) RETAINING OR PROTECTING NATURAL, SCENIC,
AGRICULTURAL OR OPEN-SPACE VALUES OF REAL PROPERTY;
(II) ASSURING THE AVAILABILITY OF REAL PROPERTY FOR
AGRICULTURAL, FOREST, RECREATIONAL OR OPEN-SPACE USE;
(III) PROTECTING NATURAL RESOURCES AND WILDLIFE;
(IV) MAINTAINING OR ENHANCING LAND, AIR OR WATER
QUALITY; OR
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(V) PRESERVING THE HISTORICAL, ARCHITECTURAL,
ARCHAEOLOGICAL OR CULTURAL ASPECTS OF REAL PROPERTY.
"DEPARTMENT." THE DEPARTMENT OF ENVIRONMENTAL PROTECTION OF
THE COMMONWEALTH.
"ECONOMIC DEVELOPMENT AGENCY." THE TERM INCLUDES:
(1) A REDEVELOPMENT AUTHORITY CREATED UNDER THE ACT OF
MAY 24, 1945 (P.L.991, NO.385), KNOWN AS THE URBAN
REDEVELOPMENT LAW, AND ANY NONPROFIT CORPORATION CREATED AND
CONTROLLED BY A REDEVELOPMENT AUTHORITY TO CARRY OUT ITS
STATUTORY PURPOSE.
(2) AN INDUSTRIAL DEVELOPMENT AGENCY AS DEFINED IN THE
ACT OF MAY 17, 1956 (1955 P.L.1609, NO.537), KNOWN AS THE
PENNSYLVANIA INDUSTRIAL DEVELOPMENT AUTHORITY ACT.
(3) AN INDUSTRIAL AND COMMERCIAL DEVELOPMENT AUTHORITY
CREATED UNDER THE ACT OF AUGUST 23, 1967 (P.L.251, NO.102),
KNOWN AS THE ECONOMIC DEVELOPMENT FINANCING LAW.
(4) AN AREA LOAN ORGANIZATION AS DEFINED IN THE ACT OF
JUNE 29, 1996 (P.L.434, NO.67), KNOWN AS THE JOB ENHANCEMENT
ACT.
(5) ANY OTHER COMMONWEALTH OR MUNICIPAL AUTHORITY WHICH
ACQUIRES TITLE OR AN INTEREST IN PROPERTY.
(6) A MUNICIPALITY OR MUNICIPAL INDUSTRIAL DEVELOPMENT
OR COMMUNITY DEVELOPMENT DEPARTMENT ORGANIZED BY ORDINANCE
UNDER A HOME RULE CHARTER WHICH BUYS AND SELLS LAND FOR
COMMUNITY DEVELOPMENT PURPOSES.
(7) A TOURIST PROMOTION AGENCY OR THE TOURIST PROMOTION
AGENCY'S LOCAL COMMUNITY-BASED NONPROFIT SPONSOR WHICH
ENGAGES IN THE ACQUISITION OF FORMER INDUSTRIAL SITES AS PART
OF AN "INDUSTRIAL HERITAGE" OR SIMILAR PROGRAM.
(8) A CONSERVANCY ENGAGED IN THE RENEWAL OR RECLAMATION
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OF AN INDUSTRIAL SITE.
(9) A LAND BANK ESTABLISHED UNDER 68 PA.C.S. CH. 21
(RELATING TO LAND BANKS).
"ENVIRONMENTAL ACT." ANY OF THE FOLLOWING:
(1) THE ACT OF JUNE 22, 1937 (P.L.1987, NO.394), KNOWN
AS THE CLEAN STREAMS LAW.
(2) THE ACT OF JANUARY 8, 1960 (1959 P.L.2119, NO.787),
KNOWN AS THE AIR POLLUTION CONTROL ACT.
(3) THE ACT OF JULY 7, 1980 (P.L. 380, NO.97), KNOWN AS
THE SOLID WASTE MANAGEMENT ACT.
(4) THE ACT OF OCTOBER 5, 1984 (P.L.734, NO.159), KNOWN
AS THE WORKER AND COMMUNITY RIGHT-TO-KNOW ACT.
(5) THE ACT OF JULY 13, 1988 (P.L.525, NO.93), REFERRED
TO AS THE INFECTIOUS AND CHEMOTHERAPEUTIC WASTE LAW.
(6) THE ACT OF OCTOBER 18, 1988 (P.L.756, NO.108), KNOWN
AS THE HAZARDOUS SITES CLEANUP ACT.
(7) THE ACT OF JULY 6, 1989 (P.L.169, NO.32), KNOWN AS
THE STORAGE TANK AND SPILL PREVENTION ACT.
(8) THE ACT OF DECEMBER 7, 1990 (P.L.639, NO.165), KNOWN
AS THE HAZARDOUS MATERIAL EMERGENCY PLANNING AND RESPONSE
ACT.
(9) THE ACT OF JUNE 11, 1992 (P.L.303, NO.52), KNOWN AS
THE OIL SPILL RESPONDER LIABILITY ACT.
(10) A FEDERAL, STATE OR LOCAL LAW, STATUTE, REGULATION,
RULE, ORDINANCE, COURT OR ADMINISTRATIVE ORDER OR DECREE,
COMMON LAW, INTERPRETATION OR GUIDANCE, IN EXISTENCE ON OR
AFTER JULY 18, 1995, PERTAINING TO EMPLOYEES, OCCUPATIONAL
HEALTH AND SAFETY, PUBLIC HEALTH OR SAFETY, NATURAL RESOURCES
OR THE ENVIRONMENT.
"ENVIRONMENTAL DUE DILIGENCE." INVESTIGATIVE TECHNIQUES,
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INCLUDING VISUAL PROPERTY INSPECTIONS, ELECTRONIC ENVIRONMENTAL
DATABASE SEARCHES, REVIEW OF OWNERSHIP AND USE HISTORY OF THE
PROPERTY, ENVIRONMENTAL QUESTIONNAIRES, TRANSACTION SCREENS,
ENVIRONMENTAL ASSESSMENTS OR AUDITS.
"FIDUCIARY." A PERSON WHICH IS CONSIDERED A FIDUCIARY UNDER
SECTION 3(21) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974 (PUBLIC LAW 93-406, 29 U.S.C. § 1002(21)) OR WHO ACTS AS
TRUSTEE, EXECUTOR, ADMINISTRATOR, CUSTODIAN, GUARDIAN OF
ESTATES, CONSERVATOR, COMMITTEE OF ESTATES OF PERSONS WHO ARE
DISABLED, PERSONAL REPRESENTATIVE, RECEIVER, AGENT, NOMINEE,
REGISTRAR OF STOCKS AND BONDS, ASSIGNEE OR IN ANY OTHER CAPACITY
FOR THE BENEFIT OF ANOTHER PERSON.
"FORECLOSURE." THE DATE UPON WHICH TITLE VESTS IN PROPERTY
THROUGH REALIZING UPON A SECURITY INTEREST, INCLUDING AN
OWNERSHIP OF PROPERTY RECOGNIZED UNDER APPLICABLE LAW AS VESTING
THE HOLDER OF THE SECURITY INTEREST WITH SOME INDICIA OF TITLE,
LEGAL OR EQUITABLE TITLE OBTAINED AT OR IN LIEU OF FORECLOSURE,
SHERIFF SALES, BANKRUPTCY DISTRIBUTIONS AND THEIR EQUIVALENTS.
"FUND." ANY OF THE FOLLOWING:
(1) A SPECIAL FUND OF COMMONWEALTH MONEY ADMINISTERED BY
THE COMMONWEALTH OR THE DEPARTMENT OF ENVIRONMENTAL
PROTECTION, INCLUDING THE HAZARDOUS SITES CLEANUP FUND AND
THE UNDERGROUND STORAGE TANK INDEMNIFICATION FUND.
(2) A FUND OF COMMONWEALTH MONEY IN EXISTENCE ON AND
AFTER JULY 18, 1995, CREATED FOR THE FUNDING OR REIMBURSEMENT
OF COSTS AND DAMAGES SUCH AS RESPONSE COSTS, EMERGENCY
RESPONSE MEASURES AND THEIR EQUIVALENT RELATING TO NATURAL
RESOURCES OR THE ENVIRONMENT.
"GUARANTOR." THE TERM INCLUDES:
(1) GUARANTORS AND SURETIES OF SECURITY INTERESTS,
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SECURITIES AND OTHER OBLIGATIONS, ISSUERS OF LETTERS OF
CREDIT AND OTHER CREDIT ENHANCEMENTS, TITLE INSURERS AND
ENTITIES WHICH DIRECTLY OR INDIRECTLY ACQUIRE INDICIA OF
OWNERSHIP IN THE COURSE OF PROTECTING A SECURITY INTEREST OR
ACTING AS THE GUARANTORS, SURETIES, ISSUERS OF LETTERS OF
CREDIT OR OTHER CREDIT ENHANCEMENTS OR TITLE INSURERS.
(2) GUARANTIES, SURETY BONDS, TITLE INSURANCE POLICIES,
LETTERS OF CREDIT AND OTHER CREDIT ENHANCEMENTS, AND OTHER
AGREEMENTS WITH A GUARANTOR RELATING TO THE OBLIGATIONS
DESCRIBED IN THIS DEFINITION.
(3) DIRECTLY OR INDIRECTLY, AN INTEREST IN PROPERTY,
SECURITY INTEREST, INDICIA OF OWNERSHIP TITLE OR RIGHT TO
TITLE HELD OR ACQUIRED BY A FIDUCIARY OR SIMILAR ENTITY FOR
THE BENEFIT OF A HOLDER OF A SECURITY INTEREST.
"INDICIA OF OWNERSHIP." AS FOLLOWS:
(1) A LEGAL OR EQUITABLE INTEREST IN PROPERTY, INCLUDING
FEE TITLE, ACQUIRED DIRECTLY OR INDIRECTLY:
(I) FOR SECURING PAYMENT OF A LOAN OR INDEBTEDNESS,
A RIGHT OF REIMBURSEMENT OR SUBROGATION UNDER A GUARANTY
OR THE PERFORMANCE OF ANOTHER OBLIGATION;
(II) EVIDENCING OWNERSHIP UNDER A LEASE FINANCING
TRANSACTION WHERE THE LESSOR DOES NOT INITIALLY SELECT OR
ORDINARILY CONTROL THE DAILY OPERATION OR MAINTENANCE OF
THE PROPERTY;
(III) IN THE COURSE OF CREATING, PROTECTING OR
ENFORCING A SECURITY INTEREST OR RIGHT OF REIMBURSEMENT
OF SUBROGATION UNDER A GUARANTY; OR
(IV) TO SECURE PUBLIC FUNDING FOR THE ENVIRONMENTAL
INVESTIGATION, REMEDIATION OR REDEVELOPMENT OF OR
IMPLEMENTATION OF INFRASTRUCTURE IMPROVEMENTS AT THE
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PROPERTY FOR, AMONG OTHER PURPOSES, THE TRANSFER OF TITLE
TO THE PROPERTY TO A THIRD PARTY AFTER REHABILITATION.
(2) THE TERM INCLUDES EVIDENCE OF INTEREST IN MORTGAGES,
DEEDS OF TRUST, LIENS, SURETY BONDS, GUARANTIES, LEASE
FINANCING TRANSACTIONS WHERE THE LESSOR DOES NOT INITIALLY
SELECT OR ORDINARILY CONTROL THE DAILY OPERATION OR
MAINTENANCE OF THE PROPERTY, OTHER FORMS OF ENCUMBRANCES
AGAINST PROPERTY RECOGNIZED UNDER APPLICABLE LAW AS VESTING
THE HOLDER OF THE SECURITY INTEREST WITH SOME INDICIA OF
TITLE.
"INDUSTRIAL ACTIVITY." COMMERCIAL, MANUFACTURING, PUBLIC
UTILITY, MINING OR ANY OTHER ACTIVITY DONE TO FURTHER EITHER THE
DEVELOPMENT, MANUFACTURING OR DISTRIBUTION OF GOODS AND
SERVICES, INTERMEDIATE AND FINAL PRODUCTS AND SOLID WASTE
CREATED DURING THE ACTIVITIES, INCLUDING ADMINISTRATION OF
BUSINESS ACTIVITIES, RESEARCH AND DEVELOPMENT, WAREHOUSING,
SHIPPING, TRANSPORT, REMANUFACTURING, STOCKPILING OF RAW
MATERIALS, STORAGE, REPAIR AND MAINTENANCE OF COMMERCIAL
MACHINERY AND EQUIPMENT AND SOLID WASTE MANAGEMENT.
"INDUSTRIAL SITE." A SITE WHICH NOW HAS OR ONCE HAD AN
INDUSTRIAL ACTIVITY ON IT.
"LENDER." A PERSON REGULATED OR SUPERVISED BY A FEDERAL OR
STATE REGULATORY AGENCY AND ANY OF ITS AFFILIATES OR
SUBSIDIARIES, SUCCESSORS OR ASSIGNS, INCLUDING ITS OFFICERS,
DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS, AND ANY FEDERAL
OR STATE BANKING OR LENDING AGENCY OR ITS SUCCESSORS, INCLUDING,
THE RESOLUTION TRUST CORPORATION, FEDERAL DEPOSIT INSURANCE
CORPORATION, FEDERAL RESERVE BANK, BOARD OF GOVERNORS OF THE
FEDERAL RESERVE SYSTEM, FEDERAL HOME LOAN BANK, NATIONAL CREDIT
UNION ADMINISTRATOR BOARD, OFFICE OF THE COMPTROLLER OF THE
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CURRENCY, OFFICE OF THRIFT SUPERVISION, FARM CREDIT
ADMINISTRATION AND SMALL BUSINESS ADMINISTRATION OR SIMILARLY
CHARTERED FEDERAL INSTRUMENTALITY. THE TERM INCLUDES:
(1) THE INITIAL LENDER AND A SUBSEQUENT HOLDER OF A
SECURITY INTEREST OR NOTE, GUARANTOR, LEASE FINANCIER OR A
SUCCESSOR OR A RECEIVER OR OTHER PERSON WHO ACTS ON BEHALF OR
FOR THE BENEFIT OF A HOLDER OF A SECURITY INTEREST.
(2) AN ECONOMIC DEVELOPMENT AGENCY.
"OCCUPANT." A PARTY WHICH OCCUPIES OR HAS THE RIGHT TO
OCCUPY PROPERTY OWNED BY AN ECONOMIC DEVELOPMENT AGENCY BY AN
INSTRUMENT, INCLUDING A LEASE, MORTGAGE, INSTALLMENT SALE
CONTRACT, DISPOSITION AGREEMENT OR TRUST AGREEMENT.
"PERSON." AN INDIVIDUAL, PARTNERSHIP, CORPORATION, BUSINESS
TRUST, JOINT-STOCK FUND, ESTATE TRUST, BANKING ASSOCIATION,
GOVERNMENTAL, ADMINISTRATIVE OR REGULATORY AGENCY, INSTITUTION
OR ANY OTHER TYPE OF LEGAL ENTITY.
"PROPERTY." EACH TYPE OF REAL, PERSONAL, TANGIBLE AND
INTANGIBLE PROPERTY.
"REDEVELOPMENT." UNDERTAKINGS AND ACTIVITIES MADE UNDER THE
ACT OF MAY 24, 1945 (P.L.991, NO.385), KNOWN AS THE URBAN
REDEVELOPMENT LAW, INCLUDING PLANNING, ACQUISITION, SITE
PREPARATION, DEMOLITION, REHABILITATION, RENOVATION,
CONSERVATION, REUSE, RENEWAL, IMPROVEMENT, CLEARANCE, SALE AND
LEASE OF REAL PROPERTY AND IMPROVEMENTS THEREON.
"REGULATED SUBSTANCE." AN ELEMENT, COMPOUND OR MATERIAL
WHICH IS SUBJECT TO REGULATION UNDER THE ENVIRONMENTAL ACTS OR
AN ELEMENT, COMPOUND OR MATERIAL DEFINED AS A HAZARDOUS, TOXIC,
REGULATED INFECTIOUS CHEMOTHERAPEUTIC SUBSTANCE OR CHEMICAL
CONTAMINANT, WASTE, A TYPE OF POLLUTION OR CONDITION OR AN
EQUIVALENT UNDER THE ENVIRONMENTAL ACTS.
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"RELEASE." A SPILL, RUPTURE, EMISSION, DISCHARGE, OTHER
ACTION, OCCURRENCE, CONDITION OR ANY OTHER TERM DEFINED AS A
"RELEASE" OR OTHER THREAT OF RELEASE OR OPERATIVE WORD OR EVENT
WHICH WOULD TRIGGER COMPLIANCE REQUIREMENTS OR LIABILITY UNDER
THE ENVIRONMENTAL ACTS.
"RESPONSE ACTION." AN ACTION, INCLUDING A RESPONSE OR
INTERIM RESPONSE, REMEDIAL RESPONSE OR REMEDY OR CORRECTIVE
ACTION, CLOSURE OR ANOTHER ACTION UNDER THE ENVIRONMENTAL ACTS
IN RESPONSE TO A RELEASE, SUCH AS TESTING, INSPECTIONS,
SAMPLING, INSTALLATIONS, CORRECTIVE ACTION, REMOVALS, CLOSURE,
RESPONSE COSTS, ASSESSMENTS OR A TYPE OF CLAIMS, DAMAGES,
ACTIONS, FINES AND PENALTIES.
"SECURITY INTEREST." AN INTEREST IN PROPERTY CREATED OR
ESTABLISHED FOR THE PURPOSE OF SECURING A LOAN, RIGHT OF
REIMBURSEMENT OR SUBROGATION UNDER A GUARANTY OR OTHER
OBLIGATION OR CONSTITUTING A LEASE FINANCING TRANSACTION. THE
TERM INCLUDES:
(1) SECURITY INTERESTS CREATED UNDER 13 PA.C.S.
(RELATING TO COMMERCIAL CODE), MORTGAGES, DEEDS OF TRUST,
LIENS, LEASE FINANCING TRANSACTIONS IN WHICH THE LESSOR DOES
NOT INITIALLY SELECT OR ORDINARILY CONTROL THE DAILY
OPERATION OR MAINTENANCE OF THE PROPERTY, TRUST RECEIPT
TRANSACTIONS AND THEIR EQUIVALENTS. A SECURITY INTEREST MAY
ARISE FROM TRANSACTIONS SUCH AS SALES AND LEASEBACKS,
CONDITIONAL SALES, INSTALLMENT SALES, CERTAIN ASSIGNMENTS,
FACTORING AGREEMENTS, ACCOUNTS RECEIVABLE, FINANCING
ARRANGEMENTS AND CONSIGNMENTS IF THE TRANSACTION CREATES OR
ESTABLISHES AN INTEREST IN PROPERTY FOR THE PURPOSE OF
SECURING A LOAN, RIGHT OF REIMBURSEMENT OR SUBROGATION UNDER
A GUARANTY OR OTHER OBLIGATION.
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(2) A CONFESSION OF JUDGMENT OR MONEY JUDGMENT WHEREBY A
LENDER COMMENCES AN EXECUTION ON THE JUDGMENT WITH A WRIT OF
EXECUTION AND BY WHICH CAUSES PROPERTY TO BE LEVIED AND
ATTACHED.
§ 8368.14. LIMITATION OF ECONOMIC DEVELOPMENT AGENCY
ENVIRONMENTAL LIABILITY.
(A) GENERAL RULE.--AN ECONOMIC DEVELOPMENT AGENCY THAT HOLDS
AN INDICIA OF OWNERSHIP IN PROPERTY UNDER THE FOLLOWING SHALL
NOT BE LIABLE UNDER THE ENVIRONMENTAL ACTS TO THE DEPARTMENT OR
TO ANY OTHER PERSON IN ACCORDANCE WITH THIS SECTION:
(1) AS A SECURITY INTEREST FOR THE PURPOSE OF DEVELOPING
OR REDEVELOPING THE PROPERTY;
(2) TO FINANCE AN ECONOMIC DEVELOPMENT OR REDEVELOPMENT
ACTIVITY; OR
(3) TO SECURE PUBLIC FUNDING FOR THE ENVIRONMENTAL
INVESTIGATION, REMEDIATION OR REDEVELOPMENT OF OR
IMPLEMENTATION OF INFRASTRUCTURE IMPROVEMENTS AT THE PROPERTY
FOR, AMONG OTHER PURPOSES, THE TRANSFER OF TITLE TO THE
PROPERTY TO A THIRD PARTY AFTER REHABILITATION.
(B) SCOPE OF LIMITED LIABILITY.--
(1) AN ECONOMIC DEVELOPMENT AGENCY SHALL NOT BE LIABLE
IN AN ACTION BY THE DEPARTMENT, AS A RESPONSIBLE PERSON,
UNLESS THE ECONOMIC DEVELOPMENT AGENCY, ITS EMPLOYEES OR
AGENTS DIRECTLY CAUSE AN IMMEDIATE RELEASE OR DIRECTLY
EXACERBATE A RELEASE OF A REGULATED SUBSTANCE ON OR FROM THE
PROPERTY.
(1.1) AN ECONOMIC DEVELOPMENT AGENCY, ITS OFFICERS,
DIRECTORS, AGENTS, MEMBERS, EMPLOYEES AND ITS PROFESSIONAL
CONSULTANTS SHALL NOT BE LIABLE, INCLUDING FOR PROPERTY
DAMAGES, DIMINUTION OF PROPERTY VALUE, STIGMA DAMAGES,
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NATURAL RESOURCE DAMAGES, ECONOMIC LOSS, BODILY INJURY OR
DEATH RELATING TO A REGULATED SUBSTANCE CURRENTLY OR
PREVIOUSLY RELEASED ON OR FROM THE PROPERTY, IN AN ACTION BY
A PERSON ALLEGING LIABILITY OF ANY KIND UNDER THE
ENVIRONMENTAL ACTS, EXCEPT IF THE ECONOMIC DEVELOPMENT
AGENCY, ITS OFFICERS, DIRECTORS, AGENTS, MEMBERS, EMPLOYEES
OR ITS PROFESSIONAL CONSULTANTS DIRECTLY CAUSE AN IMMEDIATE
RELEASE OR DIRECTLY EXACERBATE A RELEASE OF ANY REGULATED
SUBSTANCE ON OR FROM THE PROPERTY.
(2) AN ECONOMIC DEVELOPMENT AGENCY WHICH FORECLOSES ON
OR ASSUMES POSSESSION OF A PROPERTY SHALL REMAIN WITHIN THE
EXEMPTION FROM LIABILITY UNDER SUBSECTION (A).
(3) AN ECONOMIC DEVELOPMENT AGENCY THAT CONDUCTS A
REMEDIAL ACTION IN ACCORDANCE WITH A WRITTEN AGREEMENT WITH
THE DEPARTMENT SHALL NOT BE LIABLE AS A RESPONSIBLE PARTY,
OWNER, OPERATOR OR OCCUPIER IN AN ACTION BY THE DEPARTMENT
FOR A RELEASE OR POTENTIAL RELEASE OF A REGULATED SUBSTANCE.
(4) COOPERATION AMONG GOVERNMENTAL AGENCIES PERFORMING A
REMEDIAL ACTION SHALL BE AS FOLLOWS:
(I) AN ECONOMIC DEVELOPMENT AGENCY AND ANY OF ITS
SUCCESSORS AND ASSIGNS MAY TAKE NO ACTION THAT WOULD
DISTURB OR BE INCONSISTENT WITH REMEDIAL RESPONSE THAT IS
PROPOSED, APPROVED OR IMPLEMENTED BY THE ENVIRONMENTAL
PROTECTION AGENCY.
(II) AN ECONOMIC DEVELOPMENT AGENCY AND ANY OF ITS
SUCCESSORS AND ASSIGNS SHALL PERMIT ACCESS TO FEDERAL AND
COMMONWEALTH AGENCIES AND OTHER PARTIES ACTING UNDER THE
DIRECTION OF THE AGENCIES TO EVALUATE, PERFORM OR
MAINTAIN A REMEDIAL ACTION.
(III) AN ECONOMIC DEVELOPMENT AGENCY OR ANY OF ITS
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SUCCESSORS AND ASSIGNS SHALL PERFORM, OPERATE AND
MAINTAIN REMEDIAL ACTIONS UNDER STATE LAWS AS DIRECTED BY
THE DEPARTMENT.
§ 8368.15. LIMITATION OF LENDER ENVIRONMENTAL LIABILITY.
(A) SCOPE OF LENDER LIABILITY.--A LENDER WHO ENGAGES IN
ACTIVITIES INVOLVED IN THE ROUTINE PRACTICES OF COMMERCIAL
LENDING, INCLUDING THE PROVIDING OF FINANCIAL SERVICES, HOLDING
OF SECURITY INTERESTS, WORKOUT PRACTICES, FORECLOSURE OR THE
RECOVERY OF MONEY FROM THE SALE OF PROPERTY SHALL NOT BE LIABLE
UNDER THE ENVIRONMENTAL ACTS OR COMMON LAW EQUIVALENTS TO THE
DEPARTMENT OF ENVIRONMENTAL PROTECTION OR TO ANY OTHER PERSON BY
VIRTUE OF THE FACT THAT THE LENDER ENGAGES IN THE COMMERCIAL
LENDING PRACTICE EXCEPT IF:
(1) THE LENDER, ITS EMPLOYEES OR AGENTS DIRECTLY CAUSE
AN IMMEDIATE RELEASE OR DIRECTLY EXACERBATE A RELEASE OF
REGULATED SUBSTANCES ON OR FROM THE PROPERTY; OR
(2) THE LENDER, ITS EMPLOYEES OR AGENTS KNOWINGLY AND
WILLFULLY COMPELLED THE BORROWER TO:
(I) DO AN ACTION WHICH CAUSED AN IMMEDIATE RELEASE
OF REGULATED SUBSTANCES; OR
(II) VIOLATE AN ENVIRONMENTAL ACT.
(B) LIMITATION OF LENDER LIABILITY.--
(1) LIABILITY UNDER THIS SUBCHAPTER SHALL BE LIMITED TO
THE COST FOR A RESPONSE ACTION WHICH MAY BE DIRECTLY
ATTRIBUTABLE TO THE LENDER'S ACTIVITIES AS SPECIFIED IN
SUBSECTION (A).
(2) LIABILITY SHALL ARISE ONLY IF THE LENDER'S ACTIONS
WERE THE PROXIMATE AND EFFICIENT CAUSE OF THE RELEASE OR
VIOLATION.
(3) OWNERSHIP OR CONTROL OF THE PROPERTY AFTER
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FORECLOSURE SHALL NOT BY ITSELF TRIGGER LIABILITY.
(4) A LENDER SHALL NOT BE LIABLE FOR A RESPONSE ACTION
IF THE RESPONSE ACTION ARISES SOLELY FROM A RELEASE OF
REGULATED SUBSTANCES WHICH OCCURRED PRIOR TO OR COMMENCES
BEFORE AND CONTINUES AFTER FORECLOSURE, EXCEPT THAT THE
LENDER SHALL BE RESPONSIBLE FOR THAT PORTION OF THE RESPONSE
ACTION WHICH IS DIRECTLY ATTRIBUTED TO THE LENDER'S
EXACERBATION OF A RELEASE.
(5) A RELEASE OF REGULATED SUBSTANCES DISCOVERED IN THE
COURSE OF CONDUCTING ENVIRONMENTAL DUE DILIGENCE SHALL BE
PRESUMED TO BE A PRIOR OR CONTINUING RELEASE ON THE PROPERTY.
§ 8368.16. LIMITATION OF FIDUCIARY ENVIRONMENTAL LIABILITY.
(A) SCOPE OF FIDUCIARY LIABILITY.--ANY PERSON WHO ACTS OR
HAS ACTED AS A FIDUCIARY TO ANOTHER PERSON SHALL NOT BE LIABLE
IN ITS PERSONAL OR INDIVIDUAL CAPACITY UNDER THE ENVIRONMENTAL
ACTS OR COMMON LAW EQUIVALENTS TO THE DEPARTMENT OR TO ANY OTHER
PERSON BY VIRTUE OF THE FACT THAT THE FIDUCIARY PROVIDES OR
PROVIDED THE SERVICES EXCEPT IF:
(1) DURING THE TIME WHEN THE FIDUCIARY SERVICES WERE
ACTIVELY PROVIDED, AN EVENT OCCURRED WHICH CONSTITUTED A
RELEASE OF REGULATED SUBSTANCES ACCORDING TO THE
ENVIRONMENTAL ACTS AT THE TIME OF THE EVENT;
(2) THE FIDUCIARY HAD THE EXPRESS POWER AND AUTHORITY TO
CONTROL PROPERTY WHICH WAS THE CAUSE OF OR THE SITE OF THE
RELEASE AS PART OF ACTIVELY PROVIDING SERVICES; AND
(3) THE RELEASE WAS CAUSED BY AN ACT OR OMISSION WHICH
CONSTITUTED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
FIDUCIARY ACCORDING TO THE LAW OR STANDARD PRACTICES AT THE
TIME OF THE RELEASE.
(B) LIMITATION OF FIDUCIARY LIABILITY.--
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(1) LIABILITY UNDER THIS SUBCHAPTER SHALL BE LIMITED TO
ONLY THE COST FOR A RESPONSE ACTION WHICH IS DIRECTLY
ATTRIBUTABLE TO THE FIDUCIARY'S ACTIVITIES AS SPECIFIED IN
THIS SECTION.
(2) UNDER SUBSECTION (A)(2), CONTROL OF PROPERTY SHALL
BE DEEMED TO BE IN THE LESSEE AND NOT THE LESSOR FOR LEASED
PROPERTY.
(3) A FIDUCIARY:
(I) SHALL NOT BE LIABLE FOR A RESPONSE ACTION IF THE
RESPONSE ACTION ARISES FROM A RELEASE OF REGULATED
SUBSTANCES WHICH OCCURRED PRIOR TO OR COMMENCES BEFORE
AND CONTINUES AFTER THE FIDUCIARY TAKES ACTION AS
SPECIFIED IN SUBSECTION (A); BUT
(II) SHALL BE RESPONSIBLE FOR THAT PORTION OF A
RESPONSE ACTION WHICH IS DIRECTLY ATTRIBUTABLE TO
EXACERBATING A RELEASE.
(4) A RELEASE OF REGULATED SUBSTANCES DISCOVERED IN THE
COURSE OF CONDUCTING AN ENVIRONMENTAL DUE DILIGENCE SHALL BE
PRESUMED TO BE A PRIOR AND CONTINUING RELEASE ON THE
PROPERTY.
(C) ESTATE CLAIMS.--NOTHING IN THIS SECTION SHALL PREVENT
CLAIMS AGAINST THE FIDUCIARY IN ITS REPRESENTATIVE CAPACITY.
§ 8368.17. DEFENSES TO LIABILITY.
A LENDER, FIDUCIARY OR ECONOMIC DEVELOPMENT AGENCY CAN AVOID
LIABILITY UNDER THE ENVIRONMENTAL ACTS BY SHOWING EVIDENCE THAT
A RELEASE OR THREATENED RELEASE OF REGULATED SUBSTANCES FOR
WHICH THE LENDER, FIDUCIARY OR ECONOMIC DEVELOPMENT AGENCY
OTHERWISE IS RESPONSIBLE UNDER SECTIONS 8368.14 (RELATING TO
LIMITATION OF ECONOMIC DEVELOPMENT AGENCY ENVIRONMENTAL
LIABILITY), 8368.15 (RELATING TO LIMITATION OF LENDER
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ENVIRONMENTAL LIABILITY) AND 8368.16 (RELATING TO LIMITATION OF
FIDUCIARY ENVIRONMENTAL LIABILITY) WAS CAUSED BY ANY OF THE
FOLLOWING:
(1) AN ACT OF GOD.
(2) AN INTERVENING ACT OF A PUBLIC AGENCY.
(3) MIGRATION FROM PROPERTY OWNED BY A THIRD PARTY.
(4) ACTIONS TAKEN OR OMITTED IN THE COURSE OF RENDERING
CARE, ASSISTANCE OR ADVICE IN ACCORDANCE WITH THE
ENVIRONMENTAL ACTS OR AT THE DIRECTION OF THE DEPARTMENT.
(5) AN ACT OF A THIRD PARTY WHO WAS NOT AN AGENT OR
EMPLOYEE OF THE LENDER, FIDUCIARY OR ECONOMIC DEVELOPMENT
AGENCY.
(6) IF THE ALLEGED LIABILITY FOR A LENDER OR ECONOMIC
DEVELOPMENT AGENCY ARISES AFTER FORECLOSURE AND THE LENDER OR
ECONOMIC DEVELOPMENT AGENCY EXERCISED DUE CARE WITH RESPECT
TO THE LENDER'S OR ECONOMIC DEVELOPMENT AGENCY'S KNOWLEDGE
ABOUT THE REGULATED SUBSTANCES AND TOOK REASONABLE
PRECAUTIONS BASED UPON SUCH KNOWLEDGE AGAINST FORESEEABLE
ACTIONS OF THIRD PARTIES AND THE CONSEQUENCES ARISING
THEREFROM. A LENDER, FIDUCIARY OR ECONOMIC DEVELOPMENT AGENCY
CAN AVOID LIABILITY BY PROVING ANY OTHER DEFENSE WHICH MAY BE
AVAILABLE TO IT UNDER THE ENVIRONMENTAL ACTS OR COMMON LAW.
§ 8368.18. SAVINGS CLAUSE.
NOTHING IN THIS SUBCHAPTER SHALL AFFECT THE RIGHTS,
IMMUNITIES OR OTHER DEFENSES THAT ARE AVAILABLE UNDER OTHER
APPLICABLE LAW TO A LENDER, FIDUCIARY OR ECONOMIC DEVELOPMENT
AGENCY, INCLUDING RIGHTS OF CONTRIBUTION AND INDEMNITY. NOTHING
IN THIS SUBCHAPTER SHALL BE CONSTRUED TO CREATE A NEW, DIFFERENT
OR ADDITIONAL LIABILITY FOR OR CREATE A PRIVATE RIGHT OF ACTION
AGAINST A LENDER, FIDUCIARY OR ECONOMIC DEVELOPMENT AGENCY.
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§ 8368.19. APPORTIONMENT OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IF TWO OR MORE
PERSONS ACTING INDEPENDENTLY CAUSE DISTINCT HARM OR A SINGLE
HARM FOR WHICH THERE IS A REASONABLE BASIS FOR DIVISION
ACCORDING TO THE CONTRIBUTION OF EACH, A LENDER, FIDUCIARY OR
ECONOMIC DEVELOPMENT AGENCY SHALL BE SUBJECT TO LIABILITY ONLY
FOR THE PORTION OF THE TOTAL LIABILITY THAT IS DIRECTLY
ATTRIBUTABLE TO THE LENDER, FIDUCIARY OR ECONOMIC DEVELOPMENT
AGENCY.
§ 8368.20. CONSTRUCTION.
THE TERMS AND CONDITIONS OF THIS SUBCHAPTER ARE TO BE
LIBERALLY CONSTRUED SO AS TO BEST ACHIEVE AND EFFECTUATE THE
GOALS AND PURPOSES OF THIS SUBCHAPTER. LIABILITY SHALL BE BASED
ON PROXIMATE AND EFFICIENT CAUSATION. THIS SUBCHAPTER SHALL
PREEMPT AND ELIMINATE ALL LIABILITY STANDARDS IN EFFECT ON JULY
18, 1995, INCLUDING THE CONCEPT OF A PERSON WHO, WITHOUT
PARTICIPATION IN THE MANAGEMENT OF PROPERTY, HOLDS INDICIA OF
OWNERSHIP PRIMARILY TO PROTECT A SECURITY INTEREST. UNDER THE
PROVISIONS OF THIS SUBCHAPTER, THE BURDEN OF PROOF SHALL BE ON
THE PERSON SEEKING TO HAVE A LENDER, FIDUCIARY OR ECONOMIC
DEVELOPMENT AGENCY HELD LIABLE FOR A RESPONSE ACTION OR DAMAGES.
§ 8368.21. SEVERABILITY.
THE PROVISIONS OF THIS SUBCHAPTER ARE SEVERABLE. IF A
PROVISION OF THIS SUBCHAPTER OR ITS APPLICATION TO A PERSON OR
CIRCUMSTANCE IS HELD INVALID, THE INVALIDITY SHALL NOT AFFECT
OTHER PROVISIONS OR APPLICATIONS OF THIS SUBCHAPTER WHICH CAN BE
GIVEN EFFECT WITHOUT THE INVALID PROVISION OR APPLICATION.
§ 8368.22. PREEMPTION AND REPEALS.
IN THE EVENT OF AN INCONSISTENCY BETWEEN AN ENVIRONMENTAL ACT
AND THIS SUBCHAPTER, THIS SUBCHAPTER SHALL CONTROL. AN
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ENVIRONMENTAL LAW ENACTED AFTER JULY 18, 1995, MAY NOT BE
APPLIED RETROACTIVELY TO IMPOSE LIABILITY ON A LENDER, FIDUCIARY
OR ECONOMIC DEVELOPMENT AGENCY UNLESS THERE ARE EXPRESS
REPEALERS WHICH EXPLAIN THE EXTENT OF THE REPEAL.
§ 8368.23. APPLICABILITY.
THIS SUBCHAPTER SHALL APPLY TO THE FOLLOWING:
(1) EACH INDICIA OF OWNERSHIP, REGARDLESS OF THE DATE OF
ACQUISITION.
(2) EACH FIDUCIARY WITH RESPECT TO A SERVICE PROVIDED BY
THE FIDUCIARY, REGARDLESS OF THE DATE THE SERVICE WAS
PROVIDED.
(3) EACH ADMINISTRATIVE ACTION, ACTION, SUIT OR CLAIM
AGAINST A LENDER, FIDUCIARY OR ECONOMIC DEVELOPMENT AGENCY
NOT YET FINALLY RESOLVED BY THE DEPARTMENT OR A COURT OR
ADMINISTRATIVE HEARING BOARD HAVING AN ACTION, SUIT OR CLAIM
PENDING BEFORE IT OR AN APPEAL FROM A LOWER COURT,
NOTWITHSTANDING WHEN THE RELEASE OR INTEREST IN THE SUBJECT
PROPERTY OCCURRED.
SUBCHAPTER F.3
AGRITOURISM ACTIVITY PROTECTION
SEC.
8368.31. SCOPE OF SUBCHAPTER.
8368.32. DEFINITIONS.
8368.33. LIMITED CIVIL LIABILITY FOR AGRITOURISM ACTIVITY
PROVIDERS.
8368.34. NOTICE OF LIMITED CIVIL LIABILITY.
8368.35. ACKNOWLEDGMENT OF LIMITED CIVIL LIABILITY.
8368.36. APPLICABILITY.
§ 8368.31. SCOPE OF SUBCHAPTER.
THIS SUBCHAPTER RELATES TO AGRITOURISM ACTIVITY PROTECTION.
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§ 8368.32. DEFINITIONS.
THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS SUBCHAPTER
SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
CONTEXT CLEARLY INDICATES OTHERWISE:
"AGRITOURISM ACTIVITY." AS FOLLOWS:
(1) A FARM-RELATED TOURISM OR FARM-RELATED ENTERTAINMENT
ACTIVITY THAT TAKES PLACE ON AGRICULTURAL LAND AND ALLOWS
MEMBERS OF THE GENERAL PUBLIC, WHETHER OR NOT FOR A FEE, TO
TOUR, EXPLORE, OBSERVE, LEARN ABOUT, PARTICIPATE IN OR BE
ENTERTAINED BY AN ASPECT OF AGRICULTURAL PRODUCTION,
HARVESTING, HUSBANDRY OR RURAL LIFESTYLE THAT OCCURS ON THE
FARM.
(2) THE TERM SHALL NOT INCLUDE OVERNIGHT ACCOMMODATIONS,
WEDDINGS, CONCERTS OR PROVISIONS FOR FOOD AND BEVERAGE
SERVICES.
"AGRITOURISM ACTIVITY PROVIDER." A PERSON WHO OWNS,
OPERATES, PROVIDES OR SPONSORS AN AGRITOURISM ACTIVITY, WHETHER
OR NOT FOR A FEE, OR AN EMPLOYEE OF SUCH A PERSON.
"DANGEROUS CONDITION." A CONDITION THAT CREATES AN IMMINENT
AND SUBSTANTIAL RISK OF INJURY OR DAMAGES TO A PARTICIPANT.
"PARTICIPANT." AN INDIVIDUAL, OTHER THAN AN EMPLOYEE OF AN
AGRITOURISM ACTIVITY PROVIDER, WHO ENGAGES IN AN AGRITOURISM
ACTIVITY.
§ 8368.33. LIMITED CIVIL LIABILITY FOR AGRITOURISM ACTIVITY
PROVIDERS.
(A) LIABILITY.--EXCEPT AS OTHERWISE PROVIDED BY SUBSECTION
(B), AN AGRITOURISM ACTIVITY PROVIDER SHALL NOT BE CIVILLY
LIABLE FOR INJURY OR DAMAGES TO A PARTICIPANT IF:
(1) AT THE TIME OF THE AGRITOURISM ACTIVITY FROM WHICH
THE INJURY OR DAMAGES OCCURRED, A WARNING SIGN WAS POSTED IN
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ACCORDANCE WITH SECTION 8368.34 (RELATING TO NOTICE OF
LIMITED CIVIL LIABILITY); AND
(2) THE AGRITOURISM ACTIVITY PROVIDER ENTERED INTO A
WRITTEN AGREEMENT WITH THE PARTICIPANT IN ACCORDANCE WITH
SECTION 8368.35 (RELATING TO ACKNOWLEDGMENT OF LIMITED CIVIL
LIABILITY) WITH RESPECT TO THE AGRITOURISM ACTIVITY FROM
WHICH THE INJURY OR DAMAGES OCCURRED.
(B) EXCEPTIONS.--AN AGRITOURISM ACTIVITY PROVIDER SHALL NOT
BE IMMUNE FROM CIVIL LIABILITY FOR INJURY OR DAMAGES IF ANY OF
THE FOLLOWING APPLY:
(1) THE AGRITOURISM ACTIVITY PROVIDER PERFORMS AN ACT IN
A GROSSLY NEGLIGENT MANNER AND CAUSES INJURY OR DAMAGES TO A
PARTICIPANT.
(2) THE AGRITOURISM ACTIVITY PROVIDER PURPOSEFULLY
CAUSES THE INJURY OR DAMAGES TO A PARTICIPANT.
(3) THE AGRITOURISM ACTIVITY PROVIDER'S ACTION OR
INACTION CONSTITUTES CRIMINAL CONDUCT AND CAUSES THE INJURY
OR DAMAGES TO A PARTICIPANT.
(4) THE AGRITOURISM ACTIVITY PROVIDER RECKLESSLY FAILS
TO WARN OR GUARD AGAINST A DANGEROUS CONDITION THAT CAUSES
INJURY OR DAMAGES TO A PARTICIPANT.
§ 8368.34. NOTICE OF LIMITED CIVIL LIABILITY.
(A) NOTICE.--FOR THE PURPOSE OF PROVIDING NOTICE OF THE
LIMITED LIABILITY UNDER SECTION 8368.33 (RELATING TO LIMITED
CIVIL LIABILITY FOR AGRITOURISM ACTIVITY PROVIDERS), AN
AGRITOURISM ACTIVITY PROVIDER SHALL POST AND MAINTAIN A SIGN
WITH A WARNING NOTICE IN ACCORDANCE WITH SUBSECTION (B). THE
AGRITOURISM ACTIVITY PROVIDER SHALL POST THE SIGN IN A CLEARLY
VISIBLE LOCATION AT OR NEAR EACH ENTRANCE TO THE FARM OR AT THE
SITE OF EACH AGRITOURISM ACTIVITY.
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(B) CONTENTS.--THE WARNING NOTICE SHALL CONSIST OF A SIGN
THAT IS AT LEAST THREE FEET BY TWO FEET IN DIMENSION AND STATES
THE FOLLOWING:
"WARNING: READ YOUR WRITTEN AGREEMENT OR THE BACK OF
YOUR TICKET. UNDER PENNSYLVANIA LAW, EXCEPT FOR LIMITED
CIRCUMSTANCES, AN AGRITOURISM ACTIVITY PROVIDER IS NOT
LIABLE FOR ANY INJURY TO OR DEATH OF A PARTICIPANT
RESULTING FROM AN AGRITOURISM ACTIVITY. DO NOT
PARTICIPATE IN THE ACTIVITY IF YOU DO NOT WISH TO WAIVE
LIABILITY."
§ 8368.35. ACKNOWLEDGMENT OF LIMITED CIVIL LIABILITY.
FOR THE PURPOSE OF ENFORCING THE LIMITED LIABILITY UNDER
SECTION 8368.33 (RELATING TO LIMITED CIVIL LIABILITY FOR
AGRITOURISM ACTIVITY PROVIDERS), A WRITTEN AGREEMENT BETWEEN AN
AGRITOURISM ACTIVITY PROVIDER AND A PARTICIPANT SHALL BE
ENFORCEABLE IF THE WRITTEN AGREEMENT MEETS ALL THE FOLLOWING
CRITERIA:
(1) THE WRITTEN AGREEMENT IS SIGNED BEFORE THE
PARTICIPANT ENGAGES IN AN AGRITOURISM ACTIVITY.
(2) THE WRITTEN AGREEMENT IS SIGNED BY THE PARTICIPANT
OR, IF THE PARTICIPANT IS A MINOR OR CARE DEPENDENT PERSON,
THE PARTICIPANT'S PARENT OR GUARDIAN.
(3) THE WRITTEN AGREEMENT IS IN A DOCUMENT SEPARATE FROM
ANY OTHER AGREEMENT BETWEEN THE PARTICIPANT AND THE
AGRITOURISM ACTIVITY PROVIDER, EXCEPT FOR A DOCUMENT THAT
INCLUDES A DIFFERENT WARNING, CONSENT OR ASSUMPTION OF RISK
STATEMENT.
(4) THE WRITTEN AGREEMENT IS PRINTED IN NOT LESS THAN
10-POINT BOLD TYPE.
(5) THE WRITTEN AGREEMENT CONTAINS THE FOLLOWING
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LANGUAGE:
"AGREEMENT AND WARNING: I UNDERSTAND AND ACKNOWLEDGE
THAT, EXCEPT FOR LIMITED CIRCUMSTANCES LISTED BELOW,
AN AGRITOURISM ACTIVITY PROVIDER IS NOT LIABLE FOR
ANY INJURY TO OR DEATH OF A PARTICIPANT RESULTING
FROM AN AGRITOURISM ACTIVITY. I UNDERSTAND THAT I
HAVE ACCEPTED ALL RISK OF INJURY, DEATH, PROPERTY
DAMAGE AND OTHER LOSS THAT MAY RESULT FROM AN
AGRITOURISM ACTIVITY. I UNDERSTAND THAT AN
AGRITOURISM ACTIVITY PROVIDER IS NOT PROTECTED FROM
LIABILITY IF THE PROVIDER:
(1) PERFORMS AN ACT IN A GROSSLY NEGLIGENT
MANNER AND CAUSES INJURY OR DAMAGES TO A PARTICIPANT.
(2) PURPOSEFULLY CAUSES A PARTICIPANT'S INJURY.
(3) ACTS OR FAILS TO ACT IN A WAY THAT
CONSTITUTES CRIMINAL CONDUCT.
(4) RECKLESSLY FAILS TO WARN OR GUARD AGAINST A
DANGEROUS CONDITION THAT CAUSES INJURY OR DAMAGES TO
A PARTICIPANT. A DANGEROUS CONDITION IS A CONDITION
THAT CREATES AN IMMINENT AND SUBSTANTIAL RISK OF
INJURY OR DAMAGES TO A PARTICIPANT."
(6) NOTWITHSTANDING PARAGRAPHS (1), (2), (3) AND (4), A
WRITTEN AGREEMENT THAT CONTAINS SUBSTANTIALLY THE SAME
LANGUAGE UNDER PARAGRAPH (5) MAY BE PRINTED ON A TICKET
REQUIRED FOR ACCESS TO AN AGRITOURISM ACTIVITY.
§ 8368.36. APPLICABILITY.
THIS SUBCHAPTER SHALL APPLY TO ANY CAUSE OF ACTION THAT
ARISES ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION.
SUBCHAPTER F.4
COVID-19-RELATED LIABILITY
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SEC.
8368.41. DEFINITIONS.
8368.42. SCHOOL AND CHILD CARE LIABILITY.
8368.43. PERSONAL PROTECTIVE EQUIPMENT LIABILITY.
8368.44. BUSINESS OR GOVERNMENT SERVICES LIABILITY.
8368.45. COVERED PROVIDER LIABILITY.
8368.46. APPLICATION OF SUBCHAPTER.
8368.47. CONSTRUCTION OF SUBCHAPTER.
§ 8368.41. DEFINITIONS.
THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS SUBCHAPTER
SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
CONTEXT CLEARLY INDICATES OTHERWISE:
"BUSINESS OR GOVERNMENT SERVICES." A LAWFUL ACTIVITY
CONDUCTED BY A TRADE, BUSINESS, NONPROFIT ORGANIZATION OR LOCAL
GOVERNMENTAL UNIT WHICH IS PERMITTED BY THE TERMS OF A
PROCLAMATION OF DISASTER EMERGENCY TO HOLD ITSELF OUT AS OPEN TO
MEMBERS OF THE PUBLIC.
"CHILD-CARE FACILITY." ANY OF THE FOLLOWING:
(1) A CHILD CARE CENTER AS DEFINED IN SECTION 1001 OF
THE ACT OF JUNE 13, 1967 (P.L.31, NO.21), KNOWN AS THE HUMAN
SERVICES CODE.
(2) A CHILDREN'S INSTITUTION AS DEFINED IN SECTION 901
OF THE HUMAN SERVICES CODE.
(3) A FAMILY CHILD CARE HOME AS DEFINED IN SECTION 1001
OF THE HUMAN SERVICES CODE.
(4) AN INDIVIDUAL EMPLOYED OR CONTRACTED BY A PERSON
UNDER PARAGRAPH (1), (2) OR (3).
"COVERED PROVIDER." ANY OF THE FOLLOWING:
(1) A HEALTH CARE PRACTITIONER AS DEFINED IN SECTION 103
OF THE ACT OF JULY 19, 1979 (P.L.130, NO.48), KNOWN AS THE
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HEALTH CARE FACILITIES ACT.
(2) A HEALTH CARE PROVIDER, INCLUDING A REGISTERED
NURSE, LICENSED BY A STATE OR A POLITICAL DIVISION OF THE
UNITED STATES. THIS PARAGRAPH INCLUDES LICENSURE PURSUANT TO
A WAIVER.
(3) A HEALTH CARE FACILITY AS DEFINED IN SECTION 802.1
OF THE HEALTH CARE FACILITIES ACT. THIS PARAGRAPH INCLUDES
A FACILITY AUTHORIZED TO OPERATE PURSUANT TO A WAIVER.
(4) A TEMPORARY SITE OPERATED BY A HEALTH CARE FACILITY
UNDER PARAGRAPH (3) DURING THE PROCLAMATION OF DISASTER
EMERGENCY.
(5) A HEALTH CARE PROVIDER AS DEFINED IN SECTION 103 OF
THE HEALTH CARE FACILITIES ACT OR ANOTHER LEGAL ENTITY WHOSE
PRIMARY PURPOSE IS THE PROVISION OF MEDICAL CARE FOR A HEALTH
CARE PROVIDER.
(6) A FACILITY AS DEFINED IN SECTION 1001 OF THE HUMAN
SERVICES CODE OR A PARENT ORGANIZATION OF THE FACILITY.
(7) A BUSINESS, INSTITUTION OF HIGHER EDUCATION,
FACILITY OR ORGANIZATION, WHICH PROVIDES A VENUE FOR THE
PROVISION OF MEDICAL CARE.
(8) A LICENSED, CERTIFIED, REGISTERED OR AUTHORIZED
PERSON PROVIDING EMERGENCY MEDICAL SERVICES AS DEFINED IN 35
PA.C.S. § 8103 (RELATING TO DEFINITIONS). THE TERM INCLUDES
AN EMERGENCY MEDICAL SERVICES VEHICLE OPERATOR.
(9) AN EMERGENCY MEDICAL SERVICES AGENCY AS DEFINED IN
35 PA.C.S. § 8103. THIS PARAGRAPH INCLUDES A PARENT
ORGANIZATION OF THE AGENCY.
(10) A PERSON ENGAGED IN NURSING CARE AS DEFINED IN 28
PA. CODE § 201.3 (RELATING TO DEFINITIONS), IF THE NURSING
CARE:
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(I) IS IN SUPPORT OF THE ADL--ACTIVITIES OF DAILY
LIVING AND OTHER INSTRUMENTAL ACTIVITIES OF DAILY LIVING
AS DEFINED IN 55 PA. CODE § 2600.4 (RELATING TO
DEFINITIONS) OR 2800.4 (RELATING TO DEFINITIONS) AND
OTHER INSTRUMENTAL ACTIVITIES; OR
(II) CONSISTS OF COVERED SERVICES WHICH NURSING CARE
PROVIDERS ARE OBLIGATED TO DELIVER OR ARRANGE UNDER THEIR
REQUIREMENTS OF LICENSURE.
(11) A CLINICAL LABORATORY:
(I) CERTIFIED UNDER SECTION 353 OF THE PUBLIC HEALTH
SERVICE ACT (58 STAT. 682, 42 U.S.C. § 263A); OR
(II) LICENSED UNDER THE ACT OF SEPTEMBER 26, 1951
(P.L.1539, NO.389), KNOWN AS THE CLINICAL LABORATORY ACT.
(12) AN INDIVIDUAL EMPLOYED OR CONTRACTED BY A PERSON
UNDER PARAGRAPH (1), (2), (3), (4), (5), (6), (7), (8), (9),
(10) OR (11), WHO IS INVOLVED IN PROVIDING MEDICAL CARE.
"COVID-19." THE NOVEL CORONAVIRUS AS IDENTIFIED IN THE
PROCLAMATION OF DISASTER EMERGENCY ISSUED BY THE GOVERNOR ON
MARCH 6, 2020, PUBLISHED AT 50 PA.B. 1644 (MARCH 21, 2020).
"DIRECT COST." THE DIRECT LABOR AND DIRECT MATERIAL COSTS OF
PRODUCING PERSONAL PROTECTIVE EQUIPMENT, EXCLUDING ANY
MANUFACTURING OVERHEAD COSTS.
"INSTITUTION OF HIGHER EDUCATION." THE TERM INCLUDES ANY OF
THE FOLLOWING:
(1) A COMMUNITY COLLEGE OPERATING UNDER ARTICLE XIX-A OF
THE ACT OF MARCH 10, 1949 (P.L.30, NO.14), KNOWN AS THE
PUBLIC SCHOOL CODE OF 1949.
(2) THE STATE SYSTEM OF HIGHER EDUCATION. THIS PARAGRAPH
INCLUDES A UNIVERSITY WITHIN THE SYSTEM.
(3) THE PENNSYLVANIA STATE UNIVERSITY, THE UNIVERSITY OF
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PITTSBURGH, TEMPLE UNIVERSITY, LINCOLN UNIVERSITY OR AN
INSTITUTION DESIGNATED AS STATE-RELATED BY THE COMMONWEALTH.
(4) THE THADDEUS STEVENS COLLEGE OF TECHNOLOGY AND THE
PENNSYLVANIA COLLEGE OF TECHNOLOGY.
(5) A RURAL REGIONAL COLLEGE OPERATING UNDER ARTICLE
XIX-G OF THE PUBLIC SCHOOL CODE OF 1949.
(6) AN INSTITUTION OF HIGHER EDUCATION LOCATED IN AND
INCORPORATED OR CHARTERED BY THE COMMONWEALTH AND ENTITLED TO
CONFER DEGREES UNDER 24 PA.C.S. § 6505 (RELATING TO POWER TO
CONFER DEGREES) AND AS PROVIDED FOR BY THE STANDARDS AND
QUALIFICATIONS PRESCRIBED BY THE STATE BOARD OF EDUCATION
UNDER 24 PA.C.S. CH. 65 (RELATING TO PRIVATE COLLEGES,
UNIVERSITIES AND SEMINARIES).
(7) A PRIVATE SCHOOL LICENSED UNDER THE ACT OF DECEMBER
15, 1986 (P.L.1585, NO.174), KNOWN AS THE PRIVATE LICENSED
SCHOOLS ACT.
(8) A FOREIGN CORPORATION APPROVED TO OPERATE AN
EDUCATIONAL ENTERPRISE UNDER 22 PA. CODE CH. 36 (RELATING TO
FOREIGN CORPORATION STANDARDS).
(9) A COMMUNITY EDUCATION COUNCIL OPERATING UNDER
ARTICLE XIX-D OF THE PUBLIC SCHOOL CODE OF 1949.
"LOCAL GOVERNMENTAL UNIT." A MUNICIPALITY OR LOCAL
AUTHORITY.
"PERSON." A NATURAL PERSON, CORPORATION, FIRM, ASSOCIATION,
ORGANIZATION, PARTNERSHIP, LIMITED LIABILITY COMPANY, BUSINESS,
TRUST, BUSINESS TRUST, ESTATE OR FOUNDATION.
"PERSONAL PROTECTIVE EQUIPMENT." A DEVICE, EQUIPMENT,
SUBSTANCE OR MATERIAL, RECOMMENDED BY THE CENTERS FOR DISEASE
CONTROL AND PREVENTION, FOOD AND DRUG ADMINISTRATION,
ENVIRONMENTAL PROTECTION AGENCY, DEPARTMENT OF HOMELAND SECURITY
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OR ANOTHER FEDERAL AUTHORITY OR THE DEPARTMENT OF HEALTH TO
PREVENT, LIMIT OR SLOW THE SPREAD OF COVID-19, SUCH AS
RESPIRATORS, MASKS, SURGICAL APPAREL, GOWNS, GLOVES AND OTHER
APPAREL INTENDED FOR A MEDICAL PURPOSE. THE TERM INCLUDES
SANITIZERS AND DISINFECTANTS.
"PROCLAMATION OF DISASTER EMERGENCY." A PROCLAMATION OF
DISASTER EMERGENCY ISSUED BY THE GOVERNOR RELATING TO COVID-19
AND ANY RENEWAL OF THE STATE OF DISASTER EMERGENCY, SUCH AS THE
PROCLAMATION OF DISASTER EMERGENCY ISSUED BY THE GOVERNOR ON
MARCH 6, 2020, PUBLISHED AT 50 PA.B. 1644 (MARCH 21, 2020), AND
RENEWED ON JUNE 3, 2020, AND AUGUST 31, 2020.
"PUBLIC HEALTH DIRECTIVES." ORDERS OR GUIDELINES ISSUED BY
THE FEDERAL OR STATE GOVERNMENT REGARDING ANY OF THE FOLLOWING:
(1) THE MANUFACTURING OR USE OF PERSONAL PROTECTIVE
EQUIPMENT DURING THE PROCLAMATION OF DISASTER EMERGENCY.
(2) TREATMENT OR TESTING OF INDIVIDUALS WITH OR
REASONABLY BELIEVED TO HAVE COVID-19.
(3) STEPS NECESSARY OR RECOMMENDED TO PREVENT, LIMIT OR
SLOW THE SPREAD OF COVID-19.
"SCHOOL ENTITY." ANY SCHOOL DISTRICT, CHARTER SCHOOL, CYBER
CHARTER SCHOOL, REGIONAL CHARTER SCHOOL, CHARTERED SCHOOL FOR
THE DEAF AND BLIND, PRIVATE SCHOOL, NONPUBLIC SCHOOL,
PREKINDERGARTEN, INTERMEDIATE UNIT, AREA CAREER AND TECHNICAL
SCHOOL, APPROVED PRIVATE SCHOOL OR INSTITUTION OF HIGHER
EDUCATION OPERATING WITHIN THIS COMMONWEALTH. THE TERM INCLUDES
AN INDIVIDUAL EMPLOYED BY OR CONTRACTED BY A SCHOOL ENTITY.
§ 8368.42. SCHOOL AND CHILD CARE LIABILITY.
(A) LIMITED LIABILITY.--NOTWITHSTANDING ANY OTHER PROVISION
OF LAW, A SCHOOL ENTITY OR CHILD-CARE FACILITY SHALL NOT BE
CIVILLY LIABLE FOR DAMAGES OR PERSONAL INJURY RELATING TO AN
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ACTUAL OR ALLEGED EXPOSURE TO COVID-19, ABSENT A SHOWING, BY
CLEAR AND CONVINCING EVIDENCE, OF GROSS NEGLIGENCE,
RECKLESSNESS, WILLFUL MISCONDUCT OR INTENTIONAL INFLICTION OF
HARM.
(B) COMPLIANCE WITH PUBLIC HEALTH DIRECTIVES.--AN ACT OR
OMISSION IN COMPLIANCE WITH, OR IN A GOOD FAITH BELIEF THAT THE
ACT OR OMISSION IS IN COMPLIANCE WITH, PUBLIC HEALTH DIRECTIVES
SHALL NOT BE CONSIDERED GROSS NEGLIGENCE, RECKLESSNESS, WILLFUL
MISCONDUCT OR INTENTIONAL INFLICTION OF HARM.
§ 8368.43. PERSONAL PROTECTIVE EQUIPMENT LIABILITY.
(A) MANUFACTURER, DISTRIBUTOR, LABELER AND DONOR.--
(1) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A PERSON
THAT MANUFACTURES, DISTRIBUTES, LABELS OR DONATES PERSONAL
PROTECTIVE EQUIPMENT SHALL NOT BE CIVILLY LIABLE FOR DAMAGE
TO PROPERTY OR PERSONAL INJURY, RELATED TO ACTUAL OR ALLEGED
EXPOSURE TO COVID-19 IN CONNECTION WITH THE USE OF PERSONAL
PROTECTIVE EQUIPMENT WHICH, DURING THE PROCLAMATION OF
DISASTER EMERGENCY, IS DONATED OR SOLD AT DIRECT COST TO A
CHARITABLE ORGANIZATION, THE COMMONWEALTH, A LOCAL
GOVERNMENTAL UNIT OR COVERED PROVIDER, ABSENT A SHOWING BY
CLEAR AND CONVINCING EVIDENCE OF RECKLESSNESS, WILLFUL
MISCONDUCT OR INTENTIONAL INFLICTION OF HARM.
(2) AN ACT OR OMISSION IN COMPLIANCE WITH, OR IN A GOOD
FAITH BELIEF THAT THE ACT OR OMISSION WAS IN COMPLIANCE WITH,
PUBLIC HEALTH DIRECTIVES SHALL NOT BE CONSIDERED
RECKLESSNESS, WILLFUL MISCONDUCT OR INTENTIONAL INFLICTION OF
HARM.
(B) OTHER MANUFACTURERS, DISTRIBUTORS AND LABELERS.--SUBJECT
TO SUBSECTION (A), ALL OF THE FOLLOWING APPLY:
(1) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A PERSON
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THAT MANUFACTURES, DISTRIBUTES OR LABELS PERSONAL PROTECTIVE
EQUIPMENT SHALL NOT BE CIVILLY LIABLE FOR DAMAGE TO PROPERTY
OR PERSONAL INJURY RELATED TO ACTUAL OR ALLEGED EXPOSURE TO
COVID-19 IN CONNECTION WITH THE USE OF PERSONAL PROTECTIVE
EQUIPMENT, ABSENT A SHOWING, BY CLEAR AND CONVINCING
EVIDENCE, OF GROSS NEGLIGENCE, RECKLESSNESS, WILLFUL
MISCONDUCT OR INTENTIONAL INFLICTION OF HARM IF THE PERSON
COMMENCED MANUFACTURING, DISTRIBUTING OR LABELING:
(I) ONLY IN CONNECTION WITH A PROCLAMATION OF
DISASTER EMERGENCY; OR
(II) IN ACCORD WITH THE SAME STANDARDS TO WHICH IT
MANUFACTURED, DISTRIBUTED OR LABELED THE EQUIPMENT BEFORE
A PROCLAMATION OF DISASTER EMERGENCY, UNLESS THE
EQUIPMENT IS CLEARLY LABELED TO INDICATE OTHERWISE.
(2) AN ACT OR OMISSION IN COMPLIANCE WITH, OR IN A GOOD
FAITH BELIEF THAT THE ACT OR OMISSION WAS IN COMPLIANCE WITH,
PUBLIC HEALTH DIRECTIVES SHALL NOT BE CONSIDERED GROSS
NEGLIGENCE, RECKLESSNESS, WILLFUL MISCONDUCT OR INTENTIONAL
INFLICTION OF HARM.
(C) USERS.--
(1) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, A PERSON
THAT USES OR EMPLOYS PERSONAL PROTECTIVE EQUIPMENT DURING THE
PROCLAMATION OF DISASTER EMERGENCY IN COMPLIANCE WITH PUBLIC
HEALTH DIRECTIVES RELATED TO THE PERSONAL PROTECTIVE
EQUIPMENT SHALL NOT BE CIVILLY LIABLE FOR DAMAGE TO PROPERTY
OR PERSONAL INJURY RELATED TO USE OF THE PERSONAL PROTECTIVE
EQUIPMENT, ABSENT A SHOWING, BY CLEAR AND CONVINCING
EVIDENCE, OF GROSS NEGLIGENCE, RECKLESSNESS, WILLFUL
MISCONDUCT OR INTENTIONAL INFLICTION OF HARM.
(2) AN ACT OR OMISSION IN COMPLIANCE WITH, OR IN A GOOD
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FAITH BELIEF THAT THE ACT OR OMISSION WAS IN COMPLIANCE WITH,
PUBLIC HEALTH DIRECTIVES SHALL NOT BE CONSIDERED GROSS
NEGLIGENCE, RECKLESSNESS, WILLFUL MISCONDUCT OR INTENTIONAL
INFLICTION OF HARM.
§ 8368.44. BUSINESS OR GOVERNMENT SERVICES LIABILITY.
(A) LIMITED LIABILITY.--NOTWITHSTANDING ANY OTHER PROVISION
OF LAW, A PERSON PROVIDING BUSINESS OR GOVERNMENT SERVICES SHALL
NOT BE CIVILLY LIABLE FOR DAMAGE TO PROPERTY OR PERSONAL INJURY,
RELATED TO AN ACTUAL OR ALLEGED EXPOSURE TO COVID-19, ABSENT A
SHOWING, BY CLEAR AND CONVINCING EVIDENCE, OF GROSS NEGLIGENCE,
RECKLESSNESS, WILLFUL MISCONDUCT OR INTENTIONAL INFLICTION OF
HARM.
(B) COMPLIANCE WITH PUBLIC HEALTH DIRECTIVES.--AN ACT OR
OMISSION IN COMPLIANCE WITH, OR IN A GOOD FAITH BELIEF THAT THE
ACT OR OMISSION IS IN COMPLIANCE WITH, PUBLIC HEALTH DIRECTIVES
SHALL NOT BE CONSIDERED GROSS NEGLIGENCE, RECKLESSNESS, WILLFUL
MISCONDUCT OR INTENTIONAL INFLICTION OF HARM.
§ 8368.45. COVERED PROVIDER LIABILITY.
(A) LIMITED LIABILITY.--NOTWITHSTANDING ANY OTHER PROVISION
OF LAW, A COVERED PROVIDER SHALL NOT BE CIVILLY LIABLE FOR
DAMAGES OR PERSONAL INJURY, RELATED TO ANY OF THE FOLLOWING,
ABSENT A SHOWING, BY CLEAR AND CONVINCING EVIDENCE, OF GROSS
NEGLIGENCE, RECKLESSNESS, WILLFUL MISCONDUCT OR INTENTIONAL
INFLICTION OF HARM:
(1) PROVISION OF TREATMENT OR TESTING FOR COVID-19 TO
PATIENTS WHO HAVE BEEN EXPOSED TO OR WHOM A COVERED PROVIDER
REASONABLY BELIEVES MAY HAVE BEEN EXPOSED TO COVID-19.
(2) AN ACT OR OMISSION PROXIMATELY CAUSED BY:
(I) SHORTAGE OF EQUIPMENT, SUPPLIES OR PERSONNEL
WHICH:
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(A) WAS A DIRECT RESULT OF THE DEMAND FOR
TESTING FOR OR TREATMENT OF COVID-19; AND
(B) WAS BEYOND THE REASONABLE CONTROL OF THE
COVERED PROVIDER;
(II) A NUMBER OF PATIENTS IN EXCESS OF THE CAPACITY
OF A DEPARTMENT OR OF A UNIT OF A COVERED PROVIDER AS A
DIRECT RESULT OF THE NEED TO TEST FOR OR TREAT COVID-19;
OR
(III) COMPLIANCE WITH PUBLIC HEALTH DIRECTIVES
REGARDING THE TESTING FOR AND TREATMENT OF COVID-19.
(B) COMPLIANCE WITH PUBLIC HEALTH DIRECTIVES.--AN ACT OR
OMISSION BY A COVERED PROVIDER IN COMPLIANCE WITH, OR IN A GOOD
FAITH BELIEF THAT THE ACT OR OMISSION WAS IN COMPLIANCE WITH,
PUBLIC HEALTH DIRECTIVES SHALL NOT BE CONSIDERED GROSS
NEGLIGENCE, RECKLESSNESS, WILLFUL MISCONDUCT OR INTENTIONAL
INFLICTION OF HARM.
§ 8368.46. APPLICATION OF SUBCHAPTER.
(A) VICARIOUS LIABILITY.--VICARIOUS LIABILITY SHALL NOT
ATTACH TO THE EMPLOYER OF AN INDIVIDUAL WHO IS OTHERWISE IMMUNE
UNDER THIS SUBCHAPTER OR AN EXECUTIVE ORDER.
(B) PUBLIC HEALTH DIRECTIVES.--IN DETERMINING CIVIL
LIABILITY UNDER THIS SUBCHAPTER, A COURT SHALL:
(1) FOR A MANUFACTURER, DISTRIBUTOR, LABELER OR DONOR,
CONSIDER PUBLIC HEALTH DIRECTIVES WHICH WERE IN EFFECT AT THE
TIME OF THE MANUFACTURE, DISTRIBUTION, LABELING OR SALE OF
THE PERSONAL PROTECTIVE EQUIPMENT.
(2) FOR A PERSON PROVIDING BUSINESS OR GOVERNMENT
SERVICES, USER OF PERSONAL PROTECTIVE EQUIPMENT, SCHOOL
ENTITY OR CHILD-CARE FACILITY, CONSIDER PUBLIC HEALTH
DIRECTIVES WHICH WERE IN EFFECT AT THE TIME AN ALLEGED ACT OR
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OMISSION OCCURRED.
(3) FOR A COVERED PROVIDER, CONSIDER PUBLIC HEALTH
DIRECTIVES WHICH WERE IN EFFECT AT THE TIME AN ALLEGED ACT OR
OMISSION OCCURRED.
(C) PROCLAMATION OF DISASTER EMERGENCY.--THIS SUBCHAPTER
SHALL APPLY TO ACTS OR OMISSIONS DURING A PROCLAMATION OF
DISASTER EMERGENCY.
§ 8368.47. CONSTRUCTION OF SUBCHAPTER.
THIS SUBCHAPTER SHALL NOT BE CONSTRUED TO:
(1) CREATE A NEW CAUSE OF ACTION;
(2) EXPAND A CIVIL OR CRIMINAL LIABILITY OTHERWISE
IMPOSED;
(3) LIMIT A DEFENSE;
(4) AFFECT THE APPLICABILITY OF A STATUTE WHICH AFFORDS
GREATER PROTECTIONS TO DEFENDANTS THAN ARE PROVIDED UNDER
THIS SUBCHAPTER; OR
(5) PREVENT AN INDIVIDUAL FROM FILING A CLAIM OR
RECEIVING BENEFITS UNDER THE ACT OF JUNE 2, 1915 (P.L.736,
NO.338), KNOWN AS THE WORKERS' COMPENSATION ACT, IF OTHERWISE
AVAILABLE.
SECTION 2. REPEALS ARE AS FOLLOWS:
(1) THE GENERAL ASSEMBLY DECLARES THAT THE REPEAL UNDER
PARAGRAPH (2) IS NECESSARY TO EFFECTUATE THE ADDITION OF 42
PA.C.S. CH. 83 SUBCH. F.2.
(2) THE ACT OF MAY 19, 1995 (P.L.33, NO.3), KNOWN AS THE
ECONOMIC DEVELOPMENT AGENCY, FIDUCIARY AND LENDER
ENVIRONMENTAL LIABILITY PROTECTION ACT, IS REPEALED.
SECTION 3. THE ADDITION OF 42 PA.C.S. CH. 83 SUBCH. F.2 IS A
CONTINUATION OF THE ACT OF MAY 19, 1995 (P.L.33, NO.3), KNOWN AS
THE ECONOMIC DEVELOPMENT AGENCY, FIDUCIARY AND LENDER
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ENVIRONMENTAL LIABILITY PROTECTION ACT. THE FOLLOWING APPLY:
(1) EXCEPT AS OTHERWISE PROVIDED IN 42 PA.C.S. CH. 83
SUBCH. F.2, ALL ACTIVITIES INITIATED UNDER THE ECONOMIC
DEVELOPMENT AGENCY, FIDUCIARY AND LENDER ENVIRONMENTAL
LIABILITY PROTECTION ACT SHALL CONTINUE AND REMAIN IN FULL
FORCE AND EFFECT AND MAY BE COMPLETED UNDER 42 PA.C.S. CH. 83
SUBCH. F.2. ORDERS, REGULATIONS, RULES AND DECISIONS WHICH
WERE MADE UNDER THE ECONOMIC DEVELOPMENT AGENCY, FIDUCIARY
AND LENDER ENVIRONMENTAL LIABILITY PROTECTION ACT AND WHICH
ARE IN EFFECT ON THE EFFECTIVE DATE OF SECTION 2 OF THIS ACT
SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL REVOKED, VACATED
OR MODIFIED UNDER 42 PA.C.S. CH. 83 SUBCH. F.2. CONTRACTS,
OBLIGATIONS AND COLLECTIVE BARGAINING AGREEMENTS ENTERED INTO
UNDER THE ECONOMIC DEVELOPMENT AGENCY, FIDUCIARY AND LENDER
ENVIRONMENTAL LIABILITY PROTECTION ACT ARE NOT AFFECTED NOR
IMPAIRED BY THE REPEAL OF THE ECONOMIC DEVELOPMENT AGENCY,
FIDUCIARY AND LENDER ENVIRONMENTAL LIABILITY PROTECTION ACT.
(2) EXCEPT AS SET FORTH IN PARAGRAPH (3), ANY DIFFERENCE
IN LANGUAGE BETWEEN 42 PA.C.S. CH. 83 SUBCH. F.2 AND THE
ECONOMIC DEVELOPMENT AGENCY, FIDUCIARY AND LENDER
ENVIRONMENTAL LIABILITY PROTECTION ACT IS INTENDED ONLY TO
CONFORM TO THE STYLE OF THE PENNSYLVANIA CONSOLIDATED
STATUTES AND IS NOT INTENDED TO CHANGE OR AFFECT THE
LEGISLATIVE INTENT, JUDICIAL CONSTRUCTION OR ADMINISTRATION
AND IMPLEMENTATION OF THE ECONOMIC DEVELOPMENT AGENCY,
FIDUCIARY AND LENDER ENVIRONMENTAL LIABILITY PROTECTION ACT.
(3) PARAGRAPH (2) DOES NOT APPLY TO THE ADDITION OF
PARAGRAPH (9) OF THE DEFINITION OF "ECONOMIC DEVELOPMENT
AGENCY" IN 42 PA.C.S. § 8368.13.
SECTION 4. THIS ACT SHALL TAKE EFFECT AS FOLLOWS:
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(1) THE FOLLOWING PROVISIONS SHALL TAKE EFFECT
IMMEDIATELY:
(I) THIS SECTION.
(II) THE ADDITION OF 42 PA.C.S. CH. 83 SUBCH. F.4.
(2) THE REMAINDER OF THIS ACT SHALL TAKE EFFECT
IMMEDIATELY.
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