42 PA Cons Stat § 5805 (2021)
2021 Pennsylvania Consolidated & Unconsolidated Statutes|Title 42 - JUDICIARY AND JUDICIAL PROCEDURE|Chapter 58 - Forfeiture of Assets|Section 5805 - Forfeiture procedure

§ 5805. Forfeiture procedure. (a) General procedure.--The proceedings for the forfeiture or condemnation of property, the sale of which is provided for in this chapter, shall be in rem, in which the Commonwealth shall be the plaintiff and the property the defendant. A forfeiture petition signed by the Attorney General, deputy attorney general, district attorney or assistant district attorney shall be filed in the court of common pleas of the judicial district where the property is seized or located, verified by oath or affirmation of an officer. If criminal charges have been filed and a prosecution is pending, the petition shall be filed in the same judicial district as the criminal charges in all instances except those involving real property. Each petition relating to real property shall be filed in the jurisdiction where the real property is located.  (1) Each forfeiture petition shall contain the following: (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.  (ii) A statement of the time and place where seized. (iii) The owner, if known. (iv) The person or persons in possession at the time of seizure, if known. (v) An allegation that the property is subject to forfeiture and an averment of material facts supporting the forfeiture action.  (vi) A prayer for an order of forfeiture that the property be adjudged forfeited to the Commonwealth unless cause is shown to the contrary.  (2) The following shall apply: (i) A claimant shall file an answer setting forth a right of possession of the property within 30 days of service of the forfeiture petition. The answer shall be in writing and filed to the docket number in the court of common pleas and shall be signed by the claimant or the claimant's attorney.  (ii) The following shall apply: (A) Prior to filing an answer to a forfeiture petition, a claimant may file a motion to stay the forfeiture proceedings if the claimant has been criminally charged in a case associated with the forfeiture matter. If the motion is properly filed, it shall be granted.  (B) The claimant shall have 30 days from the date the stay is lifted to file an answer in accordance with this paragraph.  (3) After the answer is filed, the parties shall be permitted to conduct discovery. (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 at the time of the seizure, if known. 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, said 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.  (2) The notice under paragraph (1) must be signed by the Attorney General, deputy attorney general, district attorney, deputy district attorney or assistant district attorney and contain accurate contact information for the signatory.  (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 least one newspaper of general circulation published in the county where the property has been seized, once a week for two successive weeks.  (2) Notwithstanding any other law, no other advertisement shall be necessary. (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 the first publication.  (4) If no claims are filed within 30 days of publication, the Commonwealth may move for default judgment.  (d) Property owners not in jurisdiction.--For purposes of this section, the owner or other 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 delivery;  (2) personal service is attempted once, but cannot be made at the last known address; and  (3) a copy of the petition is left at the last known address unless the address does not exist.  (d.1) Proof of notice.--The Commonwealth shall file proof of notice with the court. Forfeiture shall not be ordered if the court finds that proof does not exist that the notice requirements contained under subsections (b), (c) and (d), if applicable, have been met.  (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 and a bench warrant is issued on the underlying criminal charges. If good cause has not been demonstrated, the Commonwealth may move for default judgment.  (f) Release of seized property pending conclusion of proceedings.-- (1) A claimant to property subject to forfeiture is permitted to seek the immediate release of seized property if:  (i) the claimant has a possessory interest in the property; (ii) the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;  (iii) the continued possession by the Commonwealth pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of a legitimate business, preventing the claimant from working or leaving the claimant homeless;  (iv) the claimant's likely hardship from the continued possession by the Commonwealth of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed or transferred if the property is returned to the claimant during the pendency of the forfeiture proceeding; and  (v) none of the conditions under paragraph (6) apply. (2) The following shall apply: (i) The claimant under paragraph (1) may file a motion in the court of common pleas in which the 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. The motion shall be served upon the district attorney or Attorney General who has jurisdiction over the case.  (ii) The motion described in this subsection shall set forth the basis on which the requirements of paragraph (1) have been met.  (3) If the Commonwealth establishes that the claimant's motion is meritless, the court shall deny the motion. In 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.  (4) The following shall apply: (i) The court shall order that the property be returned to the claimant pending completion of the forfeiture proceeding if:  (A) a motion is filed under paragraph (2); and (B) following a hearing, the claimant has demonstrated that the requirements of paragraph (1) have been met.  (ii) If the motion addresses currency, monetary instruments or electronic funds, the claimant must establish by a preponderance of the evidence a documented and noncriminal source of the currency, monetary instrument or electronic fund. The requirement under this subparagraph shall be in addition to the requirements under subparagraph (i).  (5) If the court grants a motion under paragraph (4): (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:  (A) permitting the inspection, photographing and the taking of inventory of the property; (B) fixing a bond; and (C) requiring the claimant to obtain or maintain insurance on the subject property; (ii) the Commonwealth may place a lien against the property or file a lis pendens to ensure that the property is not transferred to another person; and  (iii) if the property in question is currency, monetary instruments or electronic funds, the court shall fix a bond as provided under paragraph (5.1).  (5.1) For the purposes of paragraph (5)(iii), the following shall apply to the fixing of a bond sufficient to secure the value of the currency, monetary instruments or electronic funds:  (i) If the value of the currency, monetary instruments or electronic funds is less than $2,000, the court may order the fixing of a bond.  (ii) If the value of the currency, monetary instruments or electronic funds is at least $2,000, but less than $5,000, the court may order the fixing of a bond. If the court finds that the claimant has not demonstrated his or her ability to ensure the availability of the currency at the time of the forfeiture trial, the court shall order the fixing of a bond.  (iii) If the value of the currency, monetary instruments or electronic funds is $5,000 or more, the court shall order the fixing of a bond.  (6) This subsection shall not apply if the seized property: (i) is contraband; (ii) is evidence which shall include, but not be limited to, proceeds from a violation of law;  (iii) by reason of design or other characteristic, is particularly suited for use in illegal activities; or  (iv) is likely to be used to commit additional criminal acts if returned to the claimant. (7) A party to a proceeding under this subsection shall not be estopped from raising in any other proceeding any claim or issue presented to or decided by the court under this subsection.  (g) (Reserved). (h) (Reserved). (i) Trial time.--On the filing of an answer setting forth a right of possession, the case shall be deemed at issue and a time shall be fixed for the trial. A judicial district shall not require the parties to proceed through local rules of arbitration.  (j) Burden of proof.-- (1) The burden shall be on the Commonwealth to establish in the forfeiture petition that the property is subject to forfeiture.  (2) If the Commonwealth satisfies the burden under paragraph (1), the burden shall be on the claimant to show by a preponderance of the evidence that:  (i) the claimant is the owner of the property or the holder of a chattel mortgage or contract of conditional sale on the property or holds some other documented interest in the property; and  (ii) the claimant lawfully acquired the property. (3) If the claimant satisfies the burden under paragraph (2), the burden shall be on the Commonwealth to establish by clear and convincing evidence that the property in question was unlawfully used, possessed or otherwise subject to the forfeiture.  (4) If the Commonwealth satisfies the burden under 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:  (i) that the property was unlawfully used or possessed by the claimant; or (ii) if it appears that the property was unlawfully used or possessed by a person other than the claimant, that the person unlawfully used or possessed the property with the claimant's knowledge and consent.  (k) Proportionality.-- (1) If the court determines that the forfeiture petition shall be granted, the claimant, prior to entry of an order of forfeiture, may petition the court to determine whether the forfeiture is constitutionally excessive.  (2) If the court finds that the forfeiture is grossly disproportional to the offense, the court shall reduce or eliminate the forfeiture as necessary to avoid a constitutional violation.  (l) Disclaimed property.--A defendant in a criminal case who disclaims ownership of property during the criminal case may not claim ownership during a subsequent forfeiture proceeding.  (m) Procedure following acquittal.--The following shall apply:  (1) If the owner of the property is acquitted of all crimes which authorize forfeiture, there shall be a rebuttable presumption that the property was lawfully used or possessed by the claimant.  (2) If the owner of the property is acquitted of all crimes which authorize forfeiture, the owner shall be entitled to a hearing under section 5806 (relating to motion for return of property).  (3) If the forfeiture petition relating to the property at issue has already been litigated, this section shall not apply.  (4) As used in this subsection, the term "acquittal" shall not include plea agreements, acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition.    Special Provisions in Appendix. See section 12 of Act 13 of 2017 in the appendix to this title for special provisions relating to forfeitures.  Cross References. Section 5805 is referred to in section 1518 of Title 4 (Amusements); sections 910, 2717, 2807, 3141, 4116, 4119, 5513, 5707, 6501, 7707 of Title 18 (Crimes and Offenses); section 927 of Title 30 (Fish); sections 4909, 9405 of Title 75 (Vehicles).