6802 - Procedure with respect to seized property subject to liens and rights of lienholders.

     § 6802.  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     in this chapter, 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:            (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 pursuant to section 6801(a) (relating to        controlled substances forfeiture) or 6801.1(a) (relating to        terrorism forfeiture) 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, 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 said answer, a decree        of forfeiture and condemnation will be entered against said        property.     The notice shall be signed by the Attorney General, Deputy     Attorney General, district attorney, deputy district attorney or     assistant district attorney.        (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     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 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.        (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 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.        (e)  Notice automatically waived.--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.        (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     6801(a) or 6801.1(a) for forfeiture under this section either:            (1)  upon the filing of an information or an indictment        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            (2)  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:                (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; and                (ii)  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.        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        information described in paragraph (1) has been filed.        (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     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. Such     a temporary order shall expire not more than ten days after the     date on which it is entered, unless extended for good cause     shown or unless the party against whom it is entered consents to     an extension for a longer period. A hearing requested concerning     an order entered under this subsection shall be held at the     earliest possible 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 pursuant to     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 6801(a) or 6801.1(a), the burden shall     be upon the claimant to show:            (1)  That the claimant is the owner of the property or        the holder of a chattel mortgage or contract of conditional        sale thereon.            (2)  That the claimant lawfully acquired the property.            (3)  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.        (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     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. 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 section 6801(e) or 6801.1(f).     (July 7, 2006, P.L.342, No.71, eff. 60 days)        2006 Amendment.  Act 71 amended subsecs. (a)(5), (f), (j) and     (k).