SB 8 — 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, extensively revising forfeiture provisions as follows: 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 and 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, providing for forfeiture of assets; in forfeitures, repealing provisions relating to controlled substances forfeiture, 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 and another act relating to certain forfeiture of property.

(3) WHERE PROPERTY WAS SEIZED.

(4) THE APPROXIMATE VALUE.

(5) THE ALLEGED CRIMINAL BEHAVIOR WITH WHICH THE PROPERTY IS ASSOCIATED.

(6) THE DISPOSITION OR USE OF PROPERTY RECEIVED.

(7) WHETHER THE FORFEITURE WAS RELATED TO A CRIMINAL CASE AND THE OUTCOME OF THE CRIMINAL CASE.

(8) DATE OF FORFEITURE DECISION.

(k.1) Reporting.--By November 30 of each year, the Office of 20170SB0008PN0269 - 35 - Attorney General shall notify the Appropriations Committee and Judiciary Committee of the Senate and the Appropriations Committee and Judiciary Committee of the House of Representatives of any county which has not submitted an audit and complied with the requirements in subsection (j).

The Attorney General shall maintain proceeds from property forfeited to the Office of Attorney General in an 20170SB0008PN0181 - 35 - account or accounts separate from any other account maintained by the Office of Attorney General.

20170SB0008PN0269 - 36 - (i) A description of the property actually seized or constructively seized, including, but not limited to, if known, the address of any real property, the exact dollar amount of any United States currency, or the approximate value of any negotiable instrument or security and the make, model, year and license plate number of any vehicle.

(iv) The person or persons in possession at the time 20170SB0008PN0181 - 36 - of seizure, if known.

If the motion is properly filed, 20170SB0008PN0269 - 37 - it shall be granted.

(b) Notice to property owners.-- (1) A copy of the forfeiture petition required under subsection (a) shall be served personally or by certified mail on the owner, if known, and on each person in possession 20170SB0008PN0181 - 37 - at the time of the seizure, if known.

(c) Substitute notice.-- (1) If the owner of the property is unknown, there was no person in possession of the property when seized or the owner or each person 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 at 20170SB0008PN0269 - 38 - least one newspaper of general circulation published in the county where the property has been seized, once a week for two successive weeks.

(3) 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 claimants to the property to file a claim on or before a date given in the notice, which shall not be less than 30 days from the date of 20170SB0008PN0181 - 38 - the first publication.

(e) Notice automatically waived.--The notice provisions of this section shall be automatically waived if the owner, without good cause, fails to appear in court in response to a subpoena 20170SB0008PN0269 - 39 - and a bench warrant is issued on the underlying criminal charges.

20170SB0008PN0181 - 39 - (ii) the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;

(i) The claimant under paragraph (1) may file a motion in the court of common pleas in which the 20170SB0008PN0269 - 40 - forfeiture petition has been filed or, if no forfeiture petition has been filed, in the court of common pleas in the jurisdiction in which the property was seized.

In 20170SB0008PN0181 - 40 - response to a motion under this subsection, the Commonwealth may, in appropriate cases, submit evidence ex parte in order to avoid disclosing any matter that may adversely affect an ongoing criminal investigation or pending criminal trial.

20170SB0008PN0269 - 41 - (i) the court may enter any order necessary to ensure that the value of the property is maintained while the forfeiture action is pending, including:

(ii) the Commonwealth may place a lien against the property or file a lis pendens to ensure that the 20170SB0008PN0181 - 41 - property is not transferred to another person;

(iii) If the value of the currency, monetary 20170SB0008PN0269 - 42 - instruments or electronic funds is $5,000 or more, the court shall order the fixing of a bond.

or (iv) is likely to be used to commit additional 20170SB0008PN0181 - 42 - criminal acts if returned to the claimant.

(i) the claimant is the owner of the property or the 20170SB0008PN0269 - 43 - holder of a chattel mortgage or contract of conditional sale on the property or holds some other documented interest in the property;

(4) If the Commonwealth satisfies the burden under 20170SB0008PN0181 - 43 - paragraph (3) and the claimant alleges that he did not have knowledge of the unlawful activity or consent to the unlawful activity, the burden shall be on the Commonwealth to establish by clear and convincing evidence:

(l) Disclaimed property.--A defendant in a criminal case who 20170SB0008PN0269 - 44 - disclaims ownership of property during the criminal case may not claim ownership during a subsequent forfeiture proceeding.

(2) If the owner of the property is acquitted of all crimes which authorize forfeiture, the owner shall be 20170SB0008PN0181 - 44 - entitled to a hearing under section 5806 (relating to motion for return of property).

A hearing on the motion shall, to the extent 20170SB0008PN0269 - 45 - practicable and consistent with the interests of justice, be held within 30 days of the filing of the motion.

(1) Be signed by the petitioner under penalty of 20170SB0008PN0181 - 45 - perjury.

20170SB0008PN0269 - 46 - § 5806.1.

(1) A Federal law which authorizes the sharing or transfer of all or a portion of forfeited property or the 20170SB0008PN0181 - 46 - proceeds of the sale of forfeited property to a State law enforcement authority.

20170SB0008PN0269 - 47 - (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.

20170SB0008PN0181 - 47 - (b) Abandoned and unclaimed property.--This chapter shall not apply to abandoned or unclaimed property under Article XIII.1 of the act of April 9, 1929 (P.L.343, No.176), known as The Fiscal Code.

20170SB0008PN0269 - 48 - (3) All property which is used, or intended for use, as a container for property described in paragraph (1) or (2).

(i) no conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under the provisions of this 20170SB0008PN0181 - 48 - section unless it shall appear that the owner or other person in charge of such conveyance was a consenting party or privy to a violation of The Controlled Substance, Drug, Device and Cosmetic Act;

and (iv) no conveyance shall be forfeited under this 20170SB0008PN0269 - 49 - section for violation of section 13(a)(31) of The Controlled Substance, Drug, Device and Cosmetic Act.

(A) Money, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled 20170SB0008PN0181 - 49 - substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act, and all proceeds traceable to such an exchange.

(ii) No property shall be forfeited under this paragraph, to the extent of the interest of an owner, by 20170SB0008PN0269 - 50 - reason of any act or omission established by the owner to have been committed or omitted without the knowledge or consent of that owner.

(iii) No valid lien or encumbrance on real property 20170SB0008PN0181 - 50 - shall be subject to forfeiture or impairment under this paragraph.

Seizure without process 20170SB0008PN0269 - 51 - may be made if:

or 20170SB0008PN0181 - 51 - (4) there is probable cause to believe that the property has been used or is intended to be used in violation of The Controlled Substance, Drug, Device and Cosmetic Act.

(e) Use of property held in custody.--Whenever property is forfeited under this chapter, the property shall be transferred 20170SB0008PN0269 - 52 - 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) 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 shall be used to pay all proper expenses of the proceedings for forfeiture and sale, 20170SB0008PN0181 - 52 - including expenses of seizure, maintenance of custody, advertising and court costs.

(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 20170SB0008PN0269 - 53 - district attorney and the Attorney General.

20170SB0008PN0181 - 53 - (i) Annual audit of forfeited property.--It shall be the responsibility of every county in this Commonwealth to 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 Attorney General shall adopt procedures and guidelines governing the release of information by the district attorney to protect 20170SB0008PN0269 - 54 - the confidentiality of forfeited property or proceeds used in ongoing drug enforcement activities.

20170SB0008PN0181 - 54 - (1) All assets, foreign or domestic:

20170SB0008PN0269 - 55 - (iii) Derived from, involved in or used or intended to be used to commit an act which violates 18 Pa.C.S.

(1) The seizure is incident to an arrest, a search under a search warrant or an inspection under an administrative 20170SB0008PN0181 - 55 - inspection warrant.

When property is seized under this section, the law enforcement authority shall place the 20170SB0008PN0269 - 56 - property under seal and either:

(e) Use of property held in custody.--Whenever property is forfeited under this section, it shall be transferred to the custody of the district attorney if the law enforcement authority seizing the property has local or county jurisdiction 20170SB0008PN0181 - 56 - or of the Attorney General if the law enforcement authority seizing the property has Statewide jurisdiction.

The entity having budgetary control shall not anticipate future forfeitures or proceeds 20170SB0008PN0269 - 57 - therefrom in adoption and approval of the budget for the district attorney.

(h) Authorization to utilize property.--The district attorney and the Attorney General shall utilize forfeited 20170SB0008PN0181 - 57 - property or proceeds thereof for the purpose of enforcing the provisions of 18 Pa.C.S.

confidential information regarding property.--The Attorney General shall annually submit a report 20170SB0008PN0269 - 58 - to the Appropriations Committee and Judiciary Committee of the Senate and the Appropriations Committee and Judiciary Committee of the House of Representatives specifying the forfeited property or proceeds thereof obtained under this section.

20170SB0008PN0181 - 58 - (k) Proceeds and appropriations.--The proceeds or future proceeds from property forfeited under this section shall be in addition to any appropriation made to the Office of Attorney General.

(5) An allegation that the property is subject to forfeiture pursuant to section 6801(a) (relating to 20170SB0008PN0269 - 59 - controlled substances forfeiture) or 6801.1(a) (relating to terrorism forfeiture) and an averment of material facts upon which the forfeiture action is based.

(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 20170SB0008PN0181 - 59 - possession at the time of the seizure.

(c) Substitute notice.--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 20170SB0008PN0269 - 60 - seized, once a week for two successive weeks.

20170SB0008PN0181 - 60 - (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:

(f) Preservation of the property subject for forfeiture.-- 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 20170SB0008PN0269 - 61 - 6801(a) or 6801.1(a) for forfeiture under this section either:

20170SB0008PN0181 - 61 - (i) there is a substantial probability that the Commonwealth will prevail on the issue of forfeiture 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;

(g) Temporary restraining order.--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 there is probable cause to believe that the property with 20170SB0008PN0269 - 62 - respect to which the order is sought would be subject to forfeiture under this chapter and that provision of notice will jeopardize the availability of the property for forfeiture.

20170SB0008PN0181 - 62 - (h) Hearing regarding property;

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 20170SB0008PN0269 - 63 - or possession was without his knowledge or consent.

(k) Court-ordered release of property.--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 20170SB0008PN0181 - 63 - 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 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.

The provisions of law relating to the seizure, 20170SB0008PN0269 - 64 - summary and judicial forfeiture, and condemnation of intoxicating liquor shall apply to seizures and forfeitures under this section.

* * * 20170SB0008PN0181 - 64 - § 9405.

(i) no conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy 20170SB0008PN0269 - 65 - to a violation of Chapter 90 (relating to liquid fuels and fuels tax);

and (ii) no bona fide security interest retained or acquired under Title 13 (relating to commercial code) by any merchant dealing in new or used vehicles or vessels, or retained or acquired by any licensed or regulated finance company, bank, lending institution or by any other business regularly engaged in the financing of or lending on the security of such vehicles or vessels, shall be subject to forfeiture or impairment.] Forfeiture 20170SB0008PN0181 - 65 - of such conveyances shall be conducted in accordance with 42 Pa.C.S.

(2) Any liquid fuels or fuels seized under this section may be immediately used for any public purpose or sold to any 20170SB0008PN0269 - 66 - person at the discretion of the Secretary of Revenue.

The Commonwealth shall be the plaintiff 20170SB0008PN0181 - 66 - and the property shall be the defendant.

20170SB0008PN0269 - 67 - (f) Service of process.--A copy of the petition shall be served on the owner if he can be found within this Commonwealth in any manner provided by law for service of process or a complaint in an action in assumpsit.

Copies 20170SB0008PN0181 - 67 - shall have endorsed thereon a notice substantially similar to the following:

20170SB0008PN0269 - 68 - (h) Hearing date.--Upon the filing of any claim for the property setting forth a right of possession thereof, the case shall be deemed at issue, and a hearing shall be held within five days thereof.

In the event that the Commonwealth has not met its burden by a preponderance of the evidence or the claimant has 20170SB0008PN0181 - 68 - proved that he is not subject to the provisions of this section, the court shall order the property 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 (relating to certificate of title and security interests), the 20170SB0008PN0269 - 69 - forfeiture shall be subject to such encumbrance as of the date of the seizure less prepaid or unearned interest.

Before the motor vehicle may be sold, exchanged or otherwise transferred or retained for use by the Commonwealth, the outstanding amount of the encumbrance shall be paid to the claimant or possession of 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.] 20170SB0008PN0181 - 69 - § 9406.

(3) The forfeiture of property specified in section 614 of the act of July 7, 1980 (P.L.380, No.97), known as the 20170SB0008PN0269 - 70 - Solid Waste Management Act.

(2) Sections 602 and 603 of the act of April 12, 1951 (P.L.90, No.21), known as the Liquor Code, are repealed to 20170SB0008PN0181 - 70 - the extent of any inconsistency with this act.

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