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PRIOR PRINTER'S NO. 1015
PRINTER'S NO. 2076
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
869
Session of
2015
INTRODUCED BY FOLMER, WILLIAMS, LEACH, FARNESE, COSTA, MENSCH,
WOZNIAK, BARTOLOTTA, HAYWOOD, DINNIMAN AND BLAKE,
JUNE 4, 2015
SENATOR GREENLEAF, JUDICIARY, AS AMENDED, SEPTEMBER 26, 2016
AN ACT
Amending Titles 4 (Amusements), 18 (Crimes and Offenses), 30
(Fish), 42 (Judiciary and Judicial Procedure) and 75
(Vehicles) of the Pennsylvania Consolidated Statutes, in
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 of 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,
further providing for the offenses of copying and recording
devices and of trademark counterfeiting; in riot, disorderly
conduct and related offenses, further providing for the
offense of gambling devices, gambling, etc; in wiretapping
and electronic surveillance, further providing for seizure
and forfeiture of electronic mechanical or other devices; in
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
devices; adding provisions relating to asset forfeiture in
Judicial Code; in forfeitures, further providing for
controlled substances forfeiture and procedure with respect
to seized property subject to liens and rights of
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lienholders; in size, weight and load relating to Vehicle
Code, further providing for transporting foodstuffs in
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. AMENDING TITLES 4
(AMUSEMENTS), 18 (CRIMES AND OFFENSES), 30 (FISH), 42
(JUDICIARY AND JUDICIAL PROCEDURE) AND 75 (VEHICLES) OF THE
PENNSYLVANIA CONSOLIDATED STATUTES, IN 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 TELECOMMUNICATIONS
SERVICES; IN ASSAULT, FURTHER PROVIDING FOR THE OFFENSE OF
TERRORISM; 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
FRAUDULENT PRACTICES, FURTHER PROVIDING FOR THE OFFENSES OF
COPYING AND RECORDING DEVICES AND FOR TRADEMARK
COUNTERFEITING; IN RIOT, DISORDERLY CONDUCT AND RELATED
OFFENSES, FURTHER PROVIDING FOR THE OFFENSE OF GAMBLING
DEVICES, GAMBLING, ETC.; IN WIRETAPPING AND ELECTRONIC
SURVEILLANCE, FURTHER PROVIDING FOR SEIZURE AND FORFEITURE OF
ELECTRONIC, MECHANICAL OR OTHER DEVICES; IN 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 AND
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 DEVICES; IN ACTIONS,
PROCEEDINGS AND OTHER MATTERS GENERALLY RELATING TO JUDICIAL
CODE, ADDING PROVISIONS RELATING TO FORFEITURE OF ASSETS; IN
FORFEITURES, FURTHER PROVIDING FOR CONTROLLED SUBSTANCES
FORFEITURE AND REPEALING PROVISIONS RELATING TO TERRORISM
FORFEITURE AND TO PROCEDURE WITH RESPECT TO SEIZED PROPERTY
SUBJECT TO LIENS AND RIGHTS OF LIENHOLDERS; IN SIZE, WEIGHT
AND LOAD RELATING TO VEHICLE CODE, FURTHER PROVIDING FOR
TRANSPORTING FOODSTUFFS IN VEHICLES USED TO TRANSPORT WASTE;
IN LIQUID FUELS AND FUEL USE TAX ENFORCEMENT, FURTHER
PROVIDING FOR FORFEITURES AND PROCESS AND PROCEDURES AND FOR
DISPOSITION OF FINES AND FORFEITURES; PROVIDING FOR CONDUCT
OF FORFEITURE; 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:
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§ 1518. Prohibited acts; penalties.
* * *
(f) Property subject to seizure, confiscation, destruction
or forfeiture.--Any equipment, device or apparatus, money,
material, gaming proceeds or substituted proceeds or real or
personal property used, obtained or received or any attempt to
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
for theft of telecommunications services.
* * *
(c.1) Forfeiture of unlawful telecommunication devices.--
Upon conviction of a defendant under this section, the court
may, in addition to any other sentence authorized by law, direct
that the defendant forfeit any unlawful telecommunication
devices in the defendant's possession or control which were
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
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indicated an intention to file [a forfeiture petition] an
information or indictment seeking a forfeiture shall not be
subject to a fine. Nothing in this section shall prevent a fine
from being imposed on assets which have been subject to an
unsuccessful forfeiture [petition] proceeding.
§ 3141. General rule.
A person:
(1) convicted under section 3121 (relating to rape),
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
(2) required to register with the Pennsylvania State
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
or crimes of which the person has been convicted. [Such property
may include, but is not limited to, a computer or computers,
telephone equipment, firearms, licit or illicit prescription
drugs or controlled substances, a motor vehicle or such other
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
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issued by the court of common pleas having jurisdiction over the
person or property.
(b) Seizure without process.--Seizure without process may be
made if the seizure is incident to an arrest or a search under a
search warrant and there is probable cause to be believe that
the property was or is material to the charges for which the
arrest or search warrant was issued. In seizures without
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
jurisdiction over the criminal or forfeiture proceedings, the
district attorney in the matter or the Attorney General.
§ 3144. Disposal of property.
Property taken or detained pursuant to the provisions of this
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
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are amended to read:
§ 4116. Copying; recording devices.
* * *
(i) Forfeiture.--
(1) No property right shall exist in any property used
or intended for use in the commission of a violation of this
section or in any proceeds traceable to a violation of this
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).
[(2) Property and proceeds found in close proximity to
illegally recorded devices shall be rebuttably presumed to be
used or intended for use to facilitate a violation of this
section.]
(3) The provisions of this subsection shall not, in any
way, limit the right of the Commonwealth to exercise any
rights or remedies otherwise provided by law.
§ 4119. Trademark counterfeiting.
* * *
(f) Seizure, forfeiture and disposition.--
(1) Any items bearing a counterfeit mark, any property
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.
(2) (i) All seized personal property and property
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constituting or derived from any proceeds referenced in
paragraph (1) shall be forfeited in accordance with [the
procedures set forth in section 6501(d) (relating to
scattering rubbish)] 42 Pa.C.S. Ch. 58 (relating to asset
forfeiture).
* * *
§ 5513. Gambling devices, gambling, etc.
* * *
(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).
* * *
§ 5707. Seizure and forfeiture of electronic, mechanical or
other devices.
Any electronic, mechanical or other device possessed, used,
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
minors.
* * *
(f) Forfeiture.--Assets against which [a forfeiture
petition] an information or indictment seeking forfeiture has
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been filed and is pending or against which the Commonwealth has
indicated an intention to file [a forfeiture petition] an
information of indictment seeking forfeiture shall not be
subject to a fine under this section.
* * *
§ 6501. Scattering rubbish.
* * *
(b) Penalty.--
* * *
(5) Any vehicle, equipment or conveyance, including any
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).
* * *
[(d) Forfeiture.--
(1) Property subject to forfeiture under this section
may be seized by the law enforcement authority upon process
issued by any court of common pleas having jurisdiction over
the property.
(2) Property taken or detained under this section shall
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:
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(i) remove the property to a place designated by it;
or
(ii) require that the district attorney take custody
of the property and remove it to an appropriate location
for disposition in accordance with law.
(3) Whenever property is forfeited under this section,
the property shall be transferred to the custody of the
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.
(4) The proceedings for the forfeiture or condemnation
of property, the sale of which is provided for in this
section, shall be in rem, in which the Commonwealth shall be
the plaintiff and the property the defendant. A petition
shall be filed in the court of common pleas of the judicial
district where the property is located, verified by oath or
affirmation of an officer or citizen, containing the
following:
(i) A description of the property seized.
(ii) A statement of the time and place where seized.
(iii) The owner, if known.
(iv) The person or persons in possession, if known.
(v) An allegation that the property is subject to
forfeiture pursuant to this subsection and an averment of
material facts upon which the forfeiture action is based.
(vi) A prayer for an order of forfeiture that the
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property be adjudged forfeited to the Commonwealth and
condemned and be ordered sold according to law, unless
cause be shown to the contrary.
(5) A copy of the petition required under paragraph (4)
shall be served personally or by certified mail on the owner
or upon the person or persons in 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,
setting forth your title in, and right to possession of,
the property within 30 days from the service hereof, and
you are also notified that, if you fail to file the
answer, a decree of forfeiture and condemnation will be
entered against the property.
The notice shall be signed by the district attorney, deputy
district attorney or assistant district attorney.
(6) If the owner of the property is unknown or there was
no person in possession of the property when seized or if the
owner or such person or persons in possession at the time of
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 shall have been seized, once a week for
two successive weeks. No other advertisement of any sort
shall be necessary, any other law to the contrary
notwithstanding. The notice shall contain a statement of the
seizure of the property with a description of the property
and the place and date of seizure and shall direct any
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claimants to the property to file a claim on or before a date
given in the notice, which date shall not be less than 30
days from the date of the first publication. If no claims are
filed within 30 days of publication, the property shall
summarily forfeit to the Commonwealth.
(7) For purposes of this section, the owner or other
such person cannot be found in the jurisdiction of the court
if:
(i) a copy of the petition is mailed to the last
known address by certified mail and is returned without
delivery;
(ii) personal service is attempted once but cannot
be made at the last known address; and
(iii) a copy of the petition is left at the last
known address.
(8) The notice provisions of this section are
automatically waived when the owner, without good cause,
fails to appear in court in response to a subpoena on the
underlying criminal charges. Forty-five days after such a
failure to appear, if good cause has not been demonstrated,
the property shall summarily forfeit to the Commonwealth.
(9) Upon the filing of a claim for the property setting
forth a right of possession, the case shall be deemed at
issue and a time shall be fixed for the hearing.
(10) 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 this section, the burden shall be upon the claimant to
show:
(i) That the claimant is the owner of the property
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or the holder of a chattel mortgage or contract of
conditional sale thereon.
(ii) That the claimant lawfully acquired the
property.
(iii) That it was not unlawfully used or possessed
by him. In the event that it shall appear that the
property was unlawfully used or possessed by a person
other than the claimant, then the claimant shall show
that the unlawful use or possession was without his
knowledge or consent. Such absence of knowledge or
consent must be reasonable under the circumstances
presented.
(11) If a person claiming the ownership of or right of
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
lien or reservation of title and if, upon public hearing, due
notice of which having been given to 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 other than the
claimant, that the unlawful use was without the claimant's
knowledge or consent, then the court may order the property
returned or delivered to the claimant. Such absence of
knowledge or consent must be reasonable under the
circumstances presented. Otherwise, it shall be retained for
official use or sold in accordance with paragraph (4).]
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* * *
§ 7508. Drug trafficking sentencing and penalties.
* * *
(e) 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
information or indictment seeking forfeiture shall not be
subject to a fine. Nothing in this section shall prevent a fine
from being imposed on assets which have been subject to an
unsuccessful forfeiture [petition] proceeding.
* * *
§ 7707. Loss of property rights to Commonwealth.
[(a) Forfeitures generally.--The following shall be subject
to forfeiture to the Commonwealth, and no property right shall
exist in them:
(1) Any tool, implement or instrumentality, including,
but not limited to, a vehicle or vehicle part used or
possessed in connection with any violation of this chapter.
(2) All materials, products and equipment of any kind
which are used or intended for use in violation of this
chapter.
(3) All books, records, microfilm, tapes and data which
are used or intended for use in violation of this chapter.
(4) All money, negotiable instruments, securities or
other things of value used or intended to be used to
facilitate any violation of this chapter and all proceeds
traceable to any transactions in violation of this chapter.
(5) All real property used or intended to be used to
facilitate any violation of this chapter, including
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structures or other improvements thereon and including any
right, title and interest in the whole or any lot or tract of
land and any appurtenances or improvements which are used or
intended to be used in any manner or part to commit or to
facilitate the commission of a violation of this chapter.
(b) Exceptions.--
(1) No property shall be forfeited under this section,
to the extent of the interest of an owner, by reason of any
act or omission established by the owner to have been
committed or omitted without the knowledge or consent of that
owner.
(2) No valid lien or encumbrance on real property shall
be subject to forfeiture or impairment under this paragraph.
A lien which is fraudulent or intended to avoid forfeiture
under this section shall be invalid.
(c) Process and seizure.--Property subject to forfeiture
under this chapter may be seized by the law enforcement
authority upon process issued by a court of common pleas having
jurisdiction over the property. Seizure without process may be
made if:
(1) the seizure is incident to an arrest or a search
warrant or inspection under 75 Pa.C.S. § 6308 (relating to
investigation by police officers) or any other administrative
inspection;
(2) the property subject to seizure has been the subject
of a proper judgment in favor of the Commonwealth in a
criminal injunction or forfeiture proceeding under this
chapter;
(3) there is probable cause to believe that the property
is dangerous to health or safety; or
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(4) there is probable cause to believe that the property
has been used or is intended to be used in violation of this
chapter.
(d) Seizure without process.--In the event seizure without
process occurs as provided in this chapter, proceeding for the
issuance thereof shall be instituted forthwith.
(e) Custody of property.--Property taken or detained under
this section shall 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 or the Office of Attorney General. When property is
seized under this chapter, the law enforcement authority shall
place the property under seal and either:
(1) remove the property to a place designated by it; or
(2) require that the district attorney or the Office of
Attorney General take custody of the property and remove it
to an appropriate location for disposition in accordance with
law.
(f) Use of property held in custody.--
(1) Whenever property is forfeited under this chapter,
the property shall be transferred to:
(i) the custody of the district attorney, if the law
enforcement authority seizing the property has local or
county jurisdiction; or
(ii) the Office of Attorney General, if the law
enforcement authority seizing the property has Statewide
jurisdiction.
(2) The district attorney or the Office of Attorney
General, where appropriate, may:
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(i) Retain the property for official use.
(ii) Sell any forfeited property which is not
required to be destroyed by law and which is not harmful
to the public, but the proceeds from any such sale must
be used to pay all proper expenses of the proceeding for
forfeiture and sale, including expenses of seizure,
maintenance of custody, advertising and court costs. The
balance of the proceeds shall be dealt with in accordance
with subsections (g) and (h).
(g) Use of cash, property or proceeds of property.--Cash or
proceeds of forfeited property transferred to the custody of the
district attorney under subsection (f) shall be placed in the
operating fund of the county in which the district attorney is
elected. The appropriate county authority shall immediately
release from the operating fund, without restriction, a like
amount for the use of the district attorney in enforcing the
criminal laws of this Commonwealth. The entity having budgetary
control shall not anticipate future forfeitures or proceeds from
such forfeitures in adoption and approval of the budget for the
district attorney.
(h) Distribution of property among law enforcement
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
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section. The audit shall not be made public but shall be
submitted to the Office of Attorney General. The county shall
report all forfeited property and proceeds obtained under this
section and the disposition thereof to the Office of Attorney
General by September 30 of each year.
(j) Annual report; confidential information regarding
property.--The Office of Attorney General shall annually submit
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
property or proceeds used in ongoing enforcement activities.
(k) Proceeds and appropriations.--The proceeds or future
proceeds from forfeited property under this chapter shall be in
addition to any appropriation made to the Office of Attorney
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
liens and rights of lienholders.
(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
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shall be the plaintiff and the property the defendant. The
Pennsylvania Rules of Civil Procedure shall apply to all
forfeiture proceedings brought under this chapter. A petition
shall be filed in the court of common pleas of the judicial
district where the property is located, verified by oath or
affirmation of an officer or citizen, containing the following:
(1) A description of the property seized.
(2) A statement of the time and place where seized.
(3) The owner, if known.
(4) The person or persons in possession, if known.
(5) An allegation that the property is subject to
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.
(6) A prayer for an order of forfeiture that the
property be adjudged forfeited to the Commonwealth and
condemned and be ordered sold according to law unless cause
be shown to the contrary.
(b) Notice to property owners.--A copy of the petition
required under subsection (a) shall be served personally or by
certified mail on the owner or upon the person or persons in
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.
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The notice shall be signed by the Attorney General, Deputy
Attorney General, district attorney, deputy district attorney or
assistant district attorney.
(c) Substitute notice.--
(1) If the owner of the property is unknown or there was
no person in possession of the property when seized or if the
owner or such person or persons in possession at the time of
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.
(2) The notice shall:
(i) contain a statement of the seizure of the
property with a description of the property and the place
and date of seizure; and
(ii) direct any claimants to the property to file a
claim on or before a date given in the notice, which date
shall not be less than 30 days from the date of the first
publication.
(3) If no claims are filed within 30 days of
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:
(1) A copy of the petition is mailed to the last known
address by certified mail and is returned without a delivery.
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(2) A personal service is attempted once but cannot be
made at the last known address.
(3) A copy of the petition is left at the last known
address.
(e) Notice automatically waived.--
(1) The notice provisions of this section are
automatically waived when the owner, without good cause,
fails to appear in court in response to a subpoena on the
underlying criminal charges.
(2) Forty-five days after such a failure to appear, if
good cause has not been demonstrated, the property shall
summarily forfeit to the Commonwealth.
(f) Preservation of the property subject for forfeiture.--
(1) Upon application of the Commonwealth, the court may
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
described in section 7707 for forfeiture under this section
either:
(i) upon the filing of an information or an
indictment charging a violation of this chapter 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
(ii) prior to the filing of such an indictment or
information if, after notice to persons appearing to have
an interest in the property and an opportunity for a
hearing, the court determines that:
(A) There is a substantial probability that the
Commonwealth will prevail on the issue of forfeiture
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and that failure to enter the order will result in
the property being destroyed, removed from the
jurisdiction of the court or otherwise made
unavailable for forfeiture.
(B) The need to preserve the availability of the
property through the entry of the requested order
outweighs the hardship on any party against whom the
order is to be entered.
(2) An order entered under this subsection shall be
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.--
(1) A temporary restraining order under subsection (f)
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
property if the Commonwealth demonstrates that:
(i) there is probable cause to believe that the
property with respect to which the order is sought would
be subject to forfeiture under this chapter; and
(ii) the provision of notice will jeopardize the
availability of the property for forfeiture.
(2) Such temporary order shall expire not more than ten
days after the date on which it is entered, unless:
(i) extended for good cause shown; or
(ii) the party against whom it is entered consents
to an extension for a longer period.
(3) A hearing requested concerning an order entered
under this subsection shall be held at the earliest possible
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time and prior to the expiration of the temporary order.
(h) Hearing regarding property; rules of evidence.--The
court may receive and consider at a hearing held under
subsection (f) or (g) evidence and information that would be
inadmissible under the rules of evidence.
(i) Hearing time set.--Upon the filing of a claim for the
property setting forth a right of possession, the case shall be
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:
(1) The claimant is the owner of the property or the
holder of a chattel mortgage or contract of conditional sale
thereon.
(2) The claimant lawfully acquired the property.
(3) It was not unlawfully used or possessed by the
claimant. In the event that it shall appear that the property
was unlawfully used or possessed by a person other than the
claimant, then the claimant must show that the unlawful use
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.--
(1) If a person claiming the ownership of or right of
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
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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 Office of Attorney
General or the district attorney, the claimant proves by
competent evidence to the satisfaction of the court:
(i) that the property was lawfully acquired,
possessed and used by him; or
(ii) if it appears that the property was unlawfully
used by a person other than the claimant, that the
unlawful use was without the claimant's knowledge or
consent,
then the court may order the property returned or delivered
to the claimant.
(2) Such absence of knowledge or consent must be
reasonable under the circumstances presented. Otherwise, the
property shall be retained for official use or sold in
accordance with section 7707(f).]
Section 6. Section 927 of Title 30 is amended to read:
§ 927. Forfeiture of fish and devices.
(a) General rule.--A person convicted of an offense under
this title shall forfeit any fish seized under section 901(6)
(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:
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CHAPTER 58
ASSET FORFEITURE
Sec.
5801. Scope of criminal asset forfeiture.
5802. Criminal asset forfeiture in general.
5803. Process for criminal asset forfeiture.
5804. Process for third-party interest holders.
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:
(1) Section 3 of the act of July 8, 1978 (P.L.792,
No.140), known as the Public Employee Pension Forfeiture Act.
(2) Section 6 of the act of April 6, 1980 (P.L.102,
No.39), entitled "An act restricting the acquisition by
certain aliens of an interest in agricultural lands."
(3) Sections 207, 211 and 505 of the act of December 7,
1982 (P.L.784, No.225), known as the Dog Law.
(4) 18 Pa.C.S. § 3021 (relating to asset forfeiture);
(5) 18 Pa.C.S. § 5511 (relating to cruelty to animals);
(6) 18 Pa.C.S. § 6110.1 (relating to possession of
firearm by minor);
(7) 18 Pa.C.S. § 6321 (relating to transmission of
sexually explicit images by minor);
(8) 27 Pa.C.S. § 6208 (relating to penalties);
(9) 37 Pa.C.S. § 511 (relating to criminal penalties);
(10) 42 Pa.C.S. § 6801.1 (relating to terrorism
forfeiture);
(11) 75 Pa.C.S. § 9405 (relating to forfeitures; process
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and procedure).
(b) Contraband per se exempted.--Nothing in this chapter
shall be construed to apply to the forfeiture of contraband per
se, the possession of which is inherently unlawful. Such
forfeiture includes, but is not limited to, forfeiture of the
following:
(1) items bearing a counterfeit mark under 18 Pa.C.S. §
4119 (relating to trademark counterfeiting).
(2) liquor, alcohol or malt or brewed beverages
illegally manufactured or possessed under section 601 of the
act of April 12, 1951 (P.L.90, No.21), known as the Liquor
Code.
(3) unlawfully stamped cigarettes under section 307 of
the act of December 30, 2003 (P.L.441, No.64), known as the
Tobacco Product Manufacturer Directory Act.
(4) unstamped cigarettes under section 1285 of the act
of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code
of 1971.
(c) Conflicting law superseded.--The procedures in this
chapter shall supersede any conflicting provisions of other
State laws.
(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
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strictly construed against the Commonwealth.
(c) Forfeitures generally.--
(1) After a person is convicted of an offense for which
forfeiture is expressly authorized as a penalty, the
following shall be subject to forfeiture to the Commonwealth
and no property right shall exist in them:
(i) The convicted person's property constituting or
derived from any proceeds obtained directly from the
commission of the offense.
(ii) The convicted person's property that:
(A) Was used or intended to be used to commit or
facilitate the commission of the offense.
(B) Bears a significant relationship to the
offense.
(2) No additional penalties, including, but not limited
to, personal money judgments, shall be authorized under this
chapter except as provided by section 5803(k) (relating to
process for criminal asset forfeiture). Any restitution made
to a victim using property forfeited under this chapter shall
serve to satisfy in part or in whole any restitution order
against the convicted person.
(3) Nothing in this section shall be construed to
prevent property from being forfeited by the terms of a plea
agreement approved by a court or of any other agreement of
the parties to a criminal proceeding. Forfeiture by agreement
shall be subject to the requirements of section 5804
(relating to process for third-party interest holders).
(d) Claims for damage, loss or impermissible sale of
property.--After a finding under this chapter that seized
property is not subject to forfeiture, the property owner may
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bring a claim against the law enforcement authority that had
custody of the property and lost, damaged or impermissibly sold
it.
(e) Use of property held in custody.--
(1) Whenever property is forfeited under this chapter
and after all ancillary proceedings under section 5804 are
concluded, the property shall be transferred to the custody
of the district attorney, if the law enforcement authority
seizing the property has local or county jurisdiction, or the
Attorney General, if the law enforcement authority seizing
the property has Statewide jurisdiction.
(2) The district attorney or the Attorney General, as
applicable, shall sell any forfeited property that is not
required to be destroyed by law and is not harmful to the
public.
(3) Sale of forfeited property to an employee of the
district attorney or Attorney General, a person related to an
employee by blood or marriage or another law enforcement
authority is prohibited.
(4) The proceeds from sale shall be used to pay all
reasonable expenses related to the maintenance of custody and
sale of such property. The balance of the proceeds shall be
subject to subsection (f).
(f) Use of cash or proceeds or property.--Cash or proceeds
of forfeited property transferred under subsection (e) shall be
distributed in the following order:
(1) To satisfy any restitution orders for victims of the
underlying offense.
(2) To pay any liabilities owed by the Commonwealth to
defendants or claimants who substantially prevail under
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subsection (l).
(3) Either:
(i) if, in the custody of the Attorney General, to
the Department of Revenue for deposit into the General
Fund; or
(ii) if, in the custody of the district attorney, to
the operating fund of the county in which the district
attorney is elected.
(g) Distribution of property among law enforcement
authorities.--If both municipal and State 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 Attorney General who shall dispose of
the property in accordance with subsections (e) and (f).
(h) Annual audit of forfeited property.--A county of this
Commonwealth 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 and the disposition thereof, as well as of
all fees awarded under subsection (l). The audit shall be
submitted to the Office of Attorney General by September 30 of
each year.
(i) Annual report.--The Attorney General shall annually
submit a report to the Appropriations Committee and Judiciary
Committee of the Senate and the Appropriations Committee and
Judiciary Committee of the House of Representatives describing
the forfeited property or proceeds thereof obtained under this
section, as well as the fees awarded under subsection (l). The
report shall include an accounting of all proceeds derived from
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