9405 - Forfeitures; process and procedures.
§ 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: (1) Any liquid fuels or fuels produced in or imported 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 permits; bond or deposit of securities), except liquid fuels or fuels imported in barrels, drums or similar containers with a capacity of not more than 55 gallons in each barrel, drum or container. (2) All conveyances, including vehicles or vessels, used to transport liquid fuels or fuels as described in paragraph (1) except: (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 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. (b) Method of seizure.--Property 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. (c) Limit on return of property.-- (1) No property seized in accordance with this section, when in the custody of the Department of Revenue, shall be seized or taken therefrom by any writ of replevin or other judicial process unless a petition for forfeiture is not timely filed. (2) Any liquid fuels or fuels seized under this section may be immediately used for any public purpose or sold to any person at the discretion of the Secretary of Revenue. If such liquid fuels or fuels are determined not to be subject to forfeiture, they need not be returned to the owner or any other person making a claim thereto, but at the option of the Secretary of Revenue an amount equal to the wholesale value of the liquid fuels or fuels as determined on the date of seizure may be returned. (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 affirmation of any revenue agent. In the event that the petition is not filed within the time prescribed herein, the seized property shall be immediately returned to the person from whom seized or the owner thereof. (e) Contents of petition.--The petition shall contain the following: (1) The description of the property seized. (2) A statement of the time when and the place where seized. (3) The name and address of the owner, if known. (4) The name and address of the person who was in possession of the property at the time of seizure, if known. (5) A statement of the circumstances under which the property was seized. (6) A prayer for an order forfeiting the property to the Commonwealth, unless cause be shown to the contrary. (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. If the owner cannot be found within this Commonwealth, a copy of the petition shall be served on the owner by registered mail or certified mail, return receipt requested, addressed to the last known address of the owner. The person in possession of the property and all encumbrance holders having a perfected security interest in the property confiscated shall be notified in a like manner. Copies shall have endorsed thereon a notice substantially similar to the following: To the claimant of the within property: You are required to file an answer to this petition setting forth your title in and right to possession of the property within 20 days from the service hereof, and you are also notified that, if you fail to file an answer, a decree of forfeiture will be entered against the property. The notice shall be signed by the petitioner or his attorney. (g) Advertisement.--If the owner of the property is unknown, notice of the petition shall also be given by 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. The notice shall contain a statement of the seizure of the property, with the description thereof and the place and date of seizure, and shall direct any claimants thereof to file a claim therefor on or before a date given in the notice which shall not be less than ten days from the date of the last publication. (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. (i) Standard of proof.--The claimant shall have the burden 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 court that he is the registered owner of the motor vehicle, vessel or conveyance and that he did not know or have reason to know that it was being used to transport liquid fuels or fuels in violation of the provisions of section 9404 (relating to 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 (relating to certificate of title and security interests), the 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. (Apr. 17, 1997, P.L.6, No.3, eff. July 1, 1997) 1997 Amendment. Act 3 amended subsecs. (a)(1) and (2)(i), (b), (c)(2), (d) and (i). Cross References. Section 9405 is referred to in section 9403 of this title.