PRINTER'S NO. 1927

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

508

Session of

2015

INTRODUCED BY COX, COHEN, CUTLER, M. DALEY, DIAMOND, EVANKOVICH,

FRANKEL, GABLER, GIBBONS, J. HARRIS, M. K. KELLER, KORTZ,

KRIEGER, MULLERY, MURT, RAPP, ROAE, SIMS, STURLA, THOMAS,

administration and enforcement relating to gaming, further

providing for prohibited acts and penalties; in inchoate

crimes, further providing for the offense of manufacture,

distribution, use or possession of devices for theft of

telecommunication services; in criminal homicide, further

providing for drug delivery resulting in death; in loss of

property rights relating to sexual offenses, further

providing for general rule; repealing provisions relating to

process and seizure, to custody of property and to disposal

of property; in forgery and other fraudulent practices,

minors, further providing for sentencing and penalties for

trafficking drugs to minors; in nuisances, further providing

for the offense of scattering rubbish; in other offenses,

further providing for drug trafficking sentencing and

penalties; in vehicle chop shop and illegally obtained and

altered property, further providing for loss of property

rights to Commonwealth; repealing provisions relating to

procedure with respect to seized property subject to liens

and rights of lienholders; in enforcement relating to Fish

and Boat Code, further providing for forfeiture of fish and

vehicles used to transport waste; in liquid fuels and fuel

use tax enforcement, further providing for forfeitures,

process and procedures and for disposition of fines and

forfeitures; and making repeals of provisions of the Liquor

Code, the Tax Reform Code of 1971 and another act relating to

certain forfeiture of property.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 1518(f) of Title 4 of the Pennsylvania

Consolidated Statutes is amended to read:

use, obtain or receive the device, apparatus, money, material,

proceeds or real or personal property in violation of this part

shall be subject to [seizure, confiscation, destruction or

forfeiture] the provisions of 42 Pa.C.S. Ch. 58 (relating to

asset forfeiture).

Section 2. Sections 910(c.1), 2506(f) and 3141 of Title 18

are amended to read:

§ 910. Manufacture, distribution, use or possession of devices

* * *

involved in the violation for which the defendant was convicted.

The forfeiture shall be conducted in accordance with 42 Pa.C.S.

Ch. 58 (relating to asset forfeiture).

* * *

§ 2506. Drug delivery resulting in death.

* * *

(f) Forfeiture.--Assets against which [a forfeiture

petition] an information or indictment seeking forfeiture has

been filed and is pending or against which the Commonwealth has

indicated an intention to file [a forfeiture petition] an

3122.1 (relating to statutory sexual assault), 3123 (relating

to involuntary deviate sexual intercourse), 3124.1 (relating

to sexual assault), 3125 (relating to aggravated indecent

assault) or 3126 (relating to indecent assault); or

Police under 42 Pa.C.S. Ch. 97 Subch. H (relating to

registration of sexual offenders);

may be required to forfeit property rights in any property or

assets used to implement or facilitate commission of the crime

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property or assets as determined by the court of common pleas to

have facilitated the person's criminal misconduct.] The

forfeiture shall be conducted in accordance with 42 Pa.C.S. Ch.

58 (relating to asset forfeiture).

Section 3. Sections 3142, 3143 and 3144 of Title 18 are

repealed:

[§ 3142. Process and seizure.

(a) Seizure.--Property subject to forfeiture under this

section may be seized by law enforcement authority upon process

issued by the court of common pleas having jurisdiction over the

process, proceedings for the issuance thereof shall be

instituted immediately.

(c) Return of property.--Property belonging to someone other

than the convicted sex offender or registrant shall be returned

if the offense was committed without the knowledge or consent of

the owner.

§ 3143. Custody of property.

Property taken or detained under this subchapter is deemed to

be the property of the law enforcement authority having custody

thereof and is subject only to the court of common pleas having

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subchapter shall be sold in the manner of property forfeited

under 42 Pa.C.S. Ch. 68 (relating to forfeitures). The net

proceeds, as determined by the law enforcement authority having

custody thereof, shall be utilized for investigation or

prosecution of sexual offenses or donated to nonprofit

charitable institutions which provide counseling and other

assistance to victims of sexual offenses.]

Section 4. Sections 4116(i), 4119(f)(1) and (2)(i), 5513(b),

5707, 6314(f), 6501(b)(5) and (d), 7508(e) and 7707 of Title 18

are amended to read:

section, and the same shall be deemed contraband and

forfeited in accordance with the provisions [set forth in

section 6501(d) (relating to scattering rubbish)] of 42

Pa.C.S. Ch. 58 (relating to asset forfeiture).

illegally recorded devices shall be rebuttably presumed to be

used or intended for use to facilitate a violation of this

section.]

way, limit the right of the Commonwealth to exercise any

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constituting or derived from any proceeds obtained[, directly

or indirectly,] as the result of an offense under this

section and all personal property, including, but not limited

to, any items, objects, tools, machines, equipment,

instrumentalities or vehicles of any kind, used in connection

with a violation of this section shall be seized by a law

enforcement officer.

* * *

(b) Confiscation of gambling devices.--Any gambling device

possessed or used in violation of the provisions of subsection

(a) of this section shall be seized and forfeited to the

Commonwealth. [All provisions of law relating to the seizure,

summary and judicial forfeiture, and condemnation of

intoxicating liquor shall apply to seizures and forfeitures

under the provisions of this section.] The forfeiture shall be

conducted in accordance with 42 Pa.C.S. Ch. 58 (relating to

asset forfeiture).

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sent, distributed, manufactured, or assembled in violation of

this chapter is hereby declared to be contraband and may be

seized and forfeited to the Commonwealth in accordance with 42

Pa.C.S. Ch. 58 (relating to asset forfeiture).

§ 6314. Sentencing and penalties for trafficking drugs to

* * *

(f) Forfeiture.--Assets against which [a forfeiture

petition] an information or indictment seeking forfeiture has

been filed and is pending or against which the Commonwealth has

(b) Penalty.--

private automobile and small truck, used for the

transportation or disposal of trash, garbage or debris in the

commission of a second or subsequent offense under subsection

(a)(3) may be deemed contraband and forfeited in accordance

with [the provisions set forth in this section] 42 Pa.C.S.

Ch. 58 (relating to asset forfeiture).

* * *

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the property.

not be subject to replevin but is deemed to be in the custody

of the law enforcement authority subject only to the orders

and decrees of the court of common pleas having jurisdiction

over the forfeiture proceedings and of the district attorney.

When property is seized under this section, the law

enforcement authority shall place the property under seal and

either:

municipal corporation. The municipal corporation shall sell

any forfeited property, but the proceeds from any such sale

shall be used to pay all proper expenses of the proceedings

for forfeiture and sale, including expenses of seizure,

maintenance of custody, advertising and court costs. The

balance of the proceeds shall be used for the enforcement of

this act.

of property, the sale of which is provided for in this

section, shall be in rem, in which the Commonwealth shall be

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following:

follows:

The notice shall be signed by the district attorney, deputy

district attorney or assistant district attorney.

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authorities.--If both State and municipal law enforcement

authorities were substantially involved in effecting the

seizure, the court having jurisdiction over the forfeiture

proceedings shall equitably distribute the property between the

district attorney and the Office of Attorney General.

(i) Annual audit of forfeited property.--A county shall

provide, through the controller, board of auditors or other

appropriate auditor and the district attorney, an annual audit

of all forfeited property and proceeds obtained under this

section. The audit shall not be made public but shall be

a report to the Appropriations Committee of the Senate, the

Appropriations Committee of the House of Representatives, the

Judiciary Committee of the Senate and the Judiciary Committee of

the House of Representatives specifying the forfeited property

or proceeds thereof obtained under this section. The report

shall give an account of all proceeds derived from the sale of

forfeited property and the use made of unsold forfeited

property. The Office of Attorney General shall adopt procedures

and guidelines governing the release of information by the

district attorney to protect the confidentiality of forfeited

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General.] Forfeiture of property shall be authorized for

violation of this chapter and conducted in accordance with 42

Pa.C.S. Ch. 58 (relating to asset forfeiture).

Section 5. Section 7708 of Title 18 is repealed:

[§ 7708. Procedure with respect to seized property subject to

(a) General procedure.--The proceedings for the forfeiture

or condemnation of property, the sale of which is provided for

under this chapter, shall be in rem in which the Commonwealth

shall be the plaintiff and the property the defendant. The

forfeiture under section 7707 (relating to loss of property

rights to Commonwealth) and an averment of material facts

upon which the forfeiture action is based.

property be adjudged forfeited to the Commonwealth and

condemned and be ordered sold according to law unless cause

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possession at the time of the seizure. The copy shall have

endorsed a notice as follows:

To the claimant of within described property: You are

required to file an answer to this petition, stating your

title in and right to possession of the property within 30

days from the service of this petition, and you are also

notified that, if you fail to file an answer, a decree of

forfeiture and condemnation will be entered against the

property.

The notice shall be signed by the Attorney General, Deputy

the seizure cannot be personally served or located within the

jurisdiction of the court, notice of the petition shall be

given by the Commonwealth through an advertisement in only

one newspaper of general circulation published in the county

where the property was seized once a week for two successive

weeks. No other advertisement of any sort shall be necessary,

any other law to the contrary notwithstanding.

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publication, the property shall summarily forfeit to the

Commonwealth.

(d) Property owners not in jurisdiction.--For purposes of

this section, the owner or other such person cannot be found in

the jurisdiction of the court if:

address by certified mail and is returned without a delivery.

fails to appear in court in response to a subpoena on the

underlying criminal charges.

good cause has not been demonstrated, the property shall

summarily forfeit to the Commonwealth.

(f) Preservation of the property subject for forfeiture.--

enter a restraining order or injunction, require the

execution of a satisfactory performance bond or take any

other action to preserve the availability of property

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(A) There is a substantial probability that the

effective for not more than 90 days unless extended by the

court for good cause shown or unless an indictment or

information described in paragraph (1)(i) has been filed.

(g) Temporary restraining order.--

may be entered upon application of the Commonwealth without

notice or opportunity for a hearing when an information or

indictment has not yet been filed with respect to the

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days after the date on which it is entered, unless:

under this subsection shall be held at the earliest possible

time and prior to the expiration of the temporary order.

deemed at issue, and a time shall be fixed for the hearing.

(j) Owner's burden of proof.--At the time of the hearing, if

the Commonwealth produces evidence that the property in question

was unlawfully used, possessed or otherwise subject to

forfeiture under section 7706 (relating to presumptions), the

burden shall be upon the claimant to show that:

holder of a chattel mortgage or contract of conditional sale

thereon.

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or possession was without the claimant's knowledge or

consent. Such absence of knowledge or consent must be

reasonable under the circumstances presented.

(k) Court-ordered release of property.--

possession to or claiming to be the holder of a chattel

mortgage or contract of conditional sale upon the property,

the disposition of which is provided for in this section,

prior to the sale presents a petition to the court alleging

over the property lawful ownership, right of possession, a

then the court may order the property returned or delivered

to the claimant.

reasonable under the circumstances presented. Otherwise, the

property shall be retained for official use or sold in

accordance with section 7707(f).]

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(relating to powers and duties of waterways patrolmen and

deputies) and any device confiscated under this title.

Forfeitures shall be conducted in accordance with 42 Pa.C.S. Ch.

58 (relating to asset forfeiture).

[(b) Disposition of confiscated property.--Any property

confiscated by the commission under this title shall be sold or

otherwise disposed of by the executive director. These

dispositions shall be recorded on the books of the commission.]

Section 7. Title 42 is amended by adding a chapter to read:

CHAPTER 58

5805. Interaction with the Federal Government.

§ 5801. Scope of criminal asset forfeiture.

(a) Certain forfeitures exempted.--Forfeitures of property

shall be conducted in accordance with this chapter, except for

forfeitures authorized by:

No.140), known as the Public Employee Pension Forfeiture Act.

No.39), entitled "An act restricting the acquisition by

certain aliens of an interest in agricultural lands."

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firearm by minor);

sexually explicit images by minor);

forfeiture);

and procedure).

4119 (relating to trademark counterfeiting).

illegally manufactured or possessed under section 601 of the

act of April 12, 1951 (P.L.90, No.21), known as the Liquor

Code.

the act of December 30, 2003 (P.L.441, No.64), known as the

Tobacco Product Manufacturer Directory Act.

of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code

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(d) Preemption.--This chapter preempts any local ordinance

or regulation insofar as it is inconsistent with this chapter,

irrespective of the effective date of the ordinance or

regulation.

§ 5802. Criminal asset forfeiture in general.

(a) Criminal in form.--Unless otherwise provided,

forfeitures under this chapter are criminal.

(b) Forfeiture disfavored.--Forfeitures are not favored

under State law and any ambiguity in this chapter shall be

strictly construed against the Commonwealth.

(A) Was used or intended to be used to commit or

(B) Bears a significant relationship to the

to, personal money judgments, shall be authorized under this

chapter except as provided by section 5803(k) (relating to

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of any sentence. The notice shall include:

property is forfeitable under section 5802(c)(1) before the

court enters a preliminary order of forfeiture.

(h) Extent of forfeitable interest.--If the court determines

it is in the interests of judicial economy, the court or jury

may determine the extent of the convicted person's forfeitable

interest in the property before a preliminary order of

forfeiture is entered. The determination shall be subject to

amendments under section 5804 (relating to process for third-

party interest holders).

(i) Right to trial by jury.--

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sentencing issues.

while waiving the right to trial by jury of the offense

charged or other sentencing issues.

(j) Excessive fines.--

under section 5802(c)(1)(ii), the court must make a

determination that the forfeiture is not grossly

disproportional to the gravity of the underlying offense.

considering, among other factors:

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Commonwealth establishes by clear and convincing evidence

that:

liability for forfeiture judgments owed by other defendants

under this subsection.

but are not limited to:

the preliminary order of forfeiture.

property subject to the preliminary order of forfeiture.

subject to the preliminary order of forfeiture.

convicted person.

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limited to, the address of any real property, the exact

dollar amount of any money, negotiable instrument or

securities and the make, model, year and license plate number

of any vehicle.

Attorney General, district attorney, deputy district attorney

or assistant district attorney.

(c) Means of serving notice.--Notice shall be served

personally or by certified mail on the potential claimant.

(d) Substitute notice.--If a potential claimant cannot be

personally served or located within the jurisdiction of the

court, notice of the petition shall be provided by the

Commonwealth through an advertisement reasonably calculated to

provide notice to the potential claimant:

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prosecuting attorney for a period of two weeks.

(e) Potential claimants not in jurisdiction.--For purposes

of this section, it shall be deemed that a potential claimant

cannot be located in the jurisdiction of the court if:

claimant's last known address by certified mail and is

returned without delivery.

made at the last known address.

defendant, asserting a legal interest in property subject to a

preliminary order of forfeiture under section 5803(g) (relating

to process for criminal asset forfeiture) may, within 60 days of

the date of receipt of certified mail or personal service or, in

the case such service fails, the date of final publication of

substitute notice, petition the court for a hearing to

adjudicate the validity of the person's alleged interest in the

property.

(h) Contents of third-party claimant petition.--The petition

shall:

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circumstances of the petitioner's acquisition of the right,

title or interest in the property and any additional facts

supporting the petitioner's claim.

need not be limited to:

asserting a legal interest in property to be forfeited, the

court shall conduct an ancillary proceeding, no later than

four months after entry of the preliminary order of

forfeiture. The hearing shall be a civil proceeding and the

petitioner shall have a right to a jury trial.

practicable and consistent with the interests of justice, be

held within 30 days of the filing of the petition. The court

may consolidate the hearing on the petition with a hearing on

any other petition filed under this subsection related to the

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hearing. The Commonwealth may present evidence and witnesses

in rebuttal and in defense of its claim to forfeit the

property and may cross-examine witnesses who appear at the

hearing. In addition to testimony and evidence presented at

the hearing, the court shall consider any relevant portions

of the record of the criminal case that resulted in the order

of forfeiture.

petitioner has established by a preponderance of the evidence

that:

The court shall amend the order of forfeiture in accordance

with its determination.

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interests.

preliminary order shall become the final order of forfeiture.

§ 5805. Interaction with the Federal Government.

(a) Prohibition on adoptive seizures.--State law enforcement

authorities shall not refer seized property to a Federal agency

seeking the adoption by the Federal agency of the seized

property. Nothing in this chapter shall be construed to prohibit

the Federal Government, or any of its agencies, from seeking

Federal forfeiture.

deposited as set forth in section 5803(e), (f), (g), (h) and (i)

(relating to process for criminal asset forfeiture), if Federal

law prohibits compliance with section 5803(e), (f), (g), (h) and

(i), State law enforcement authorities shall not seek forfeited

property or proceeds of the sale of forfeited property shared or

transferred under Federal law.

(c) Civil and criminal liability.--Any law enforcement

authority that violates subsection (a) is civilly liable to the

State for three times the amount of the forfeiture diverted and

for costs of suit and reasonable attorney fees. Any damages

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enforcement authority, who knowingly transfers or otherwise

trades seized property in violation of subsection (a) or who

receives property, money or other things of value under

subsection (b) and knowingly fails to transfer such property in

accordance with that subsection is guilty of a misdemeanor of

the second degree.

Section 8. Sections 6801 and 6802(a), (f), (j) and (k) of

Title 42 are amended to read:

§ 6801. Controlled substances forfeiture.

[(a) Forfeitures generally.--The following shall be subject

Drug, Device and Cosmetic Act.

kind which are used, or intended for use, in manufacturing,

compounding, processing, delivering, importing or exporting

any controlled substance or other drug in violation of The

Controlled Substance, Drug, Device and Cosmetic Act.

a container for property described in paragraph (1) or (2).

vessels, which are used or are intended for use to transport,

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microfilm, tapes and data, which are used or intended for use

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restraining order or injunction, require the execution of a

satisfactory performance bond or take any other action to

preserve the availability of property described in section

[6801(a) or] 6801.1(a) for forfeiture under this section either:

charging an offense in this Commonwealth for which criminal

forfeiture may be ordered under this chapter and alleging

that the property with respect to which the order is sought

would be subject to forfeiture; or

However, an order entered pursuant to this paragraph shall be

effective for not more than 90 days unless extended by the

court for good cause shown or unless an indictment or

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was unlawfully used, possessed or otherwise subject to

forfeiture under section [6801(a) or] 6801.1(a), the burden

shall be upon the claimant to show:

the holder of a chattel mortgage or contract of conditional

sale thereon.

In the event that it shall appear that the property was

unlawfully used or possessed by a person other than the

holder of a chattel mortgage or contract of conditional sale

upon the property, the disposition of which is provided for in

this section, prior to the sale presents a petition to the court

alleging over the property lawful ownership, right of

possession, a lien or reservation of title and if, upon public

hearing, due notice of which having been given to the Attorney

General or the district attorney, the claimant shall prove by

competent evidence to the satisfaction of the court that the

property was lawfully acquired, possessed and used by him or, it

appearing that the property was unlawfully used by a person

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presented. Otherwise, it shall be retained for official use or

sold in accordance with section [6801(e) or] 6801.1(f).

Section 9. Sections 4909(c), 9405(a), (b), (c)(1), (d), (i)

and (j) and 9406 of Title 75 are amended to read:

§ 4909. Transporting foodstuffs in vehicles used to transport

* * *

(c) Vehicle forfeiture.--Any vehicle or conveyance used in

the commission of an offense under this section shall be deemed

contraband and forfeited [to the Department of Environmental

forfeiture).

* * *

§ 9405. Forfeitures; process and procedures.

(a) Subjects of forfeiture.--The following are subject to

forfeiture to the Commonwealth and no property right shall exist

in them:

into this Commonwealth by any distributor who does not

possess a valid liquid fuels tax permit or fuels permit as

required by section 9003 (relating to liquid fuels and fuels

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to transport liquid fuels or fuels as described in paragraph

(1). [except:

(b) Method of seizure.--[Property] Liquid fuels or fuels

subject to forfeiture under this section may be seized by the

Department of Revenue upon process issued by any court of common

pleas having jurisdiction over the property. Seizure without

process may be made if the seizure is incident to an inspection

or arrest for a violation of this chapter or Chapter 90.

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any writ of replevin or other judicial process unless a

petition for forfeiture is not timely filed.

(d) In rem proceedings.--The proceedings for the forfeiture

of any liquid fuels or fuels [or conveyances] seized under this

section shall be in rem. The Commonwealth shall be the plaintiff

and the property shall be the defendant. A petition shall be

filed, within five days after seizure, in the court of common

pleas of the county in which the property was seized by revenue

agents of the Department of Revenue, verified by oath or

of proving that he is not subject to the provisions of this

section, but the burden of proof shall be upon the Commonwealth

to prove all other facts necessary for the forfeiture of the

property. In the event that the Commonwealth has not met its

burden by a preponderance of the evidence or the claimant has

proved that he is not subject to the provisions of this section,

the court shall order the property returned to the claimant;

otherwise, the court shall order the property forfeited to the

Commonwealth. [In the case of a motor vehicle, vessel or

conveyance, should the claimant prove to the satisfaction of the

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violations and penalties) or 9019 (relating to diesel fuel

importers and transporters; prohibiting use of dyed diesel fuel

on highways; violations and penalties), the court in its

discretion may order the motor vehicle, vessel or conveyance

returned to the claimant.

(j) Encumbered motor vehicle.--In the case of a motor

vehicle, should the claimant prove that he holds a valid

encumbrance upon such motor vehicle, notice of which encumbrance

has been duly noted on the certificate of title to the motor

vehicle in accordance with the provisions of Chapter 11

the motor vehicle shall be turned over to the claimant who shall

expose the same to public sale and shall pay over to the

Commonwealth any amount realized in excess of the outstanding

amount of such encumbrance less the reasonable costs incurred by

claimant in conducting such sale.]

§ 9406. Disposition of fines and forfeitures.

All fines imposed under this chapter and the net proceeds

received from the sale of forfeited [property] liquid fuels or

fuels shall be payable to the Commonwealth and credited to the

Motor License Fund.

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the act of July 3, 1941 (P.L.263, No.121), entitled "An act

providing for the forfeiture and condemnation of vehicles

used to store, possess or transport narcotics or drugs, the

possession or transportation of which is in violation of

law."

(3) and 601 of the act of April 12, 1951 (P.L.90, No.21),

known as the Liquor Code.

of the act of March 4, 1971 (P.L.6, No.2), known as the Tax

Municipal Waste Planning, Recycling and Waste Reduction Act.

the act of December 1, 2004 (P.L.1766, No.227), entitled "An

act authorizing cities of the first class that have adopted a

home rule charter to enforce ordinances, rules and

regulations prohibiting dumping or disposal of waste, trash

or debris."

Section 11. Repeals are as follows:

(a) The General Assembly finds that the repeals under

subsections (b) and (c) are necessary to effectuate the addition

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(c) The following acts and parts of acts are repealed

absolutely:

(P.L.263, No.121), entitled "An act providing for the

forfeiture and condemnation of vehicles used to store,

possess or transport narcotics or drugs, the possession or

transportation of which is in violation of law."

No.21), known as the Liquor Code.

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