THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY SACCONE, MARSICO, MALONEY, BAKER, STEPHENS, SAYLOR, BENNINGHOFF, ROCK AND MILNE, SEPTEMBER 5, 2012

REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 5, 2012  

AN ACT

Amending Title 18 (Crimes and Offenses) of the Pennsylvania

Consolidated Statutes, providing for administrative subpoena.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 18 of the Pennsylvania Consolidated

Statutes is amended by adding a section to read:

§ 5743.1.  Administrative subpoena.

(a)  Authorization.--

(1)  In an investigation of or relating to an offense

involving the sexual exploitation or abuse of children, the

following shall apply:

(i)  The following may issue in writing and cause to

be served a subpoena requiring the production and

testimony under subparagraph (ii):

(A)  The Attorney General.

(B)  A deputy attorney general designated in

writing by the Attorney General.

(C)  A district attorney.

(D)  An assistant district attorney designated in

writing by a district attorney.

(ii)  A subpoena issued under subparagraph (i) may be

issued to a provider of electronic communication service

or remote computing service:

(A)  requiring disclosure under section 5743(c)

(2) (relating to requirements for governmental

access) of a subscriber or customer's name, address,

telephone or instrument number or other subscriber

number or identity, including any temporarily

assigned network address, which may be relevant to an

authorized law enforcement inquiry; or

(B)  requiring a custodian of the records of the

provider to give testimony or affidavit concerning

the production and authentication of the records or

information.

(2)  A subpoena under this section shall describe the

information required to be produced and prescribe a return

date within a reasonable period of time within which the

information can be assembled and made available.

(3)  If summoned to appear under paragraph (1)(ii)(B), a

custodian of records subpoenaed under this section shall be

paid the same fees and mileage that are paid to witnesses in

the courts of this Commonwealth.

(4)  Prior to the return date specified in the summons,

the person or entity summoned may, in the court of common

pleas of the county in which the person or entity conducts

business or resides, petition for an order modifying or

setting aside the summons or for a prohibition of disclosure

ordered by a court under paragraph (7).

(5)  The following shall apply:

(i)  Except as provided under subparagraph (ii), if

no case or proceeding arises from the production of

materials under this section within a reasonable time

after the materials are produced, the agency to which the

materials were delivered shall, upon written demand made

by the person producing the materials, return the

materials to the person.

(ii)  This paragraph shall not apply if the

production required was of copies rather than originals.

(6)  A subpoena issued under paragraph (1)(i) may require

production as soon as possible, but not less than 24 hours

after service of the subpoena.

(7)  Upon application of the Commonwealth, a court of

common pleas for the jurisdiction in which the investigation

is taking place may issue an ex parte order that no person or

entity may disclose to any other person or entity, other than

to an attorney in order to obtain legal advice, the existence

of the summons for a period of up to 90 days. The following

shall apply:

(i)  The order may be issued on a showing that the

materials being sought may be relevant to the

investigation and there is reason to believe that the

disclosure may result in any of the following:

(A)  Endangerment to the life or physical safety

of any person.

(B)  Flight to avoid prosecution.

(C)  Destruction of or tampering with evidence.

(D)  Intimidation of potential witnesses.

(ii)  An order under this paragraph may be renewed

for additional periods of up to 90 days upon a showing

that the circumstances under subparagraph (i) continue to

exist.

(8)  A summons issued under this section may not require

the production of anything that would be protected from

production under the standards applicable to a subpoena for

the production of documents issued by a court.

(b)  Service.--The following shall apply:

(1)  A subpoena issued under this section may be served

by any person who is at least 18 years of age and is

designated in the subpoena to serve it.

(2)  Service upon a natural person may be made by

personal delivery of the subpoena to him.

(3)  Service may be made upon a domestic or foreign

corporation or upon a partnership or other unincorporated

association which is subject to suit under a common name by

delivering the subpoena to any of the following:

(i)  An officer of the entity.

(ii)  A managing or general agent of the entity.

(iii)  An agent authorized by appointment or by law

to receive service of process in this Commonwealth.

(4)  The affidavit of the person serving the subpoena

entered on a true copy of the subpoena by the person serving

it shall be proof of service.

(c)  Enforcement.--The following shall apply:

(1)  The Attorney General or a district attorney may

invoke the aid of a court of common pleas within the

following jurisdictions to compel compliance with the

subpoena:

(i)  The jurisdiction in which the investigation is

carried on.

(ii)  The jurisdiction in which the subpoenaed person

resides, conducts business or may be found.

(2)  The court may issue an order requiring the

subpoenaed person to appear before the Attorney General or a

district attorney to produce records or to give testimony

concerning the production and authentication of the records.

A failure to obey the order of the court may be punished by

the court as contempt of court. All process may be served in

a judicial district of the Commonwealth in which the person

may be found.

(d)  Immunity from civil liability.--Notwithstanding any

State or local law, any person receiving a subpoena under this

section who complies in good faith with the subpoena and

produces the records sought shall not be liable in a court of

this Commonwealth to a subscriber, customer or other person for

the production or for nondisclosure of that production to the

subscriber, customer or person.

(e)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection:

"Offense involving the sexual exploitation or abuse of

children."  An offense, including an attempt, conspiracy or

solicitation involving any of the following, in which a victim

is an individual who is under the age of 18 years:

(1)  Chapter 29 (relating to kidnapping).

(2)  Chapter 30 (relating to trafficking of persons).

(3)  Chapter 31 (relating to sexual offenses).

(4)  Section 6312 (relating to sexual abuse of children).

(5)  Section 6318 (relating to unlawful contact with

minor).

(6)  Section 6320 (relating to sexual exploitation of

children).

Section 2.  This act shall take effect immediately.