PRIOR PRINTER'S NO. 28 PRINTER'S NO. 566
No. 18 Session of 2003
INTRODUCED BY ROEBUCK, BELARDI, BUXTON, CRUZ, GEORGE, HORSEY,
JOSEPHS, PAYNE, MAITLAND, E. Z. TAYLOR, THOMAS, D. EVANS,
JAMES, HERSHEY, FRANKEL, COSTA, HARHAI, GOODMAN, PALLONE,
CRAHALLA AND WASHINGTON, JANUARY 29, 2003
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, FEBRUARY 25, 2003
AN ACT
1 Imposing civil liability on persons participating in the illegal
2 drug market; providing for the recovery of damages by certain
3 persons; and establishing the procedure for bringing a
4 private action to recover damages.
5 TABLE OF CONTENTS
6 Section 1. Short title.
7 Section 2. Definitions.
8 Section 3. Imposition of liability for participation in
9 illegal drug market.
10 Section 4. Private actions by certain persons.
11 Section 5. Private actions by individual drug users.
12 Section 6. Indemnification prohibited.
13 Section 7. Determination of illegal drug market target
14 community.
15 Section 8. Joinder of parties.
16 Section 9. Comparative negligence AFFIRMATIVE DEFENSES. <--
17 Section 10. Right of contribution.
1 Section 11. Procedure at trial.
2 Section 12. Judgment procedure. <--
3 Section 13. Time for commencement of action.
4 Section 14. Representation for Commonwealth.
5 Section 15. Stay of action.
6 Section 16. Effective date.
7 SECTION 12. TIME FOR COMMENCEMENT OF ACTION. <--
8 SECTION 13. REPRESENTATION FOR COMMONWEALTH.
9 SECTION 14. STAY OF ACTION.
10 SECTION 15. EFFECTIVE DATE.
11 The General Assembly of the Commonwealth of Pennsylvania
12 hereby enacts as follows:
13 Section 1. Short title.
14 This act shall be known and may be cited as the Drug Dealer
15 Liability Act.
16 Section 2. Definitions.
17 The following words and phrases when used in this act shall
18 have the meanings given to them in this section unless the
19 context clearly indicates otherwise:
20 "Defendant." A person against whom a private action is
21 brought under section 4 or 5.
22 "Illegal drug." A drug, the distribution of which is a
23 violation of the act of April 14, 1972 (P.L.233, No.64), known
24 as The Controlled Substance, Drug, Device and Cosmetic Act.
25 "Illegal drug market." The support system of illegal drug-
26 related operations, from production to retail sales, through
27 which an illegal drug reaches an individual drug user.
28 "Illegal drug market target community." The geographical
29 area described under section 7.
30 "Individual drug user." The person whose use of an illegal
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1 drug serves as the basis of a private action brought under this
2 act.
3 "Level one offense." Possession of one-quarter ounce or
4 more, but less than four ounces, or distribution of less than
5 one ounce of a specified illegal drug, or possession of one
6 pound or 25 plants or more, but less than four pounds or 50
7 plants, or distribution of less than one pound of marijuana.
8 "Level two offense." Possession of four ounces or more, but
9 less than eight ounces, or distribution of one ounce or more,
10 but less than two ounces, of a specified illegal drug, or
11 possession of four pounds or more or 50 plants or more, but less
12 than eight pounds or 75 plants, or distribution of more than one
13 pound but less than ten pounds of marijuana.
14 "Level three offense." Possession of eight ounces or more,
15 but less than 16 ounces, or distribution of two ounces or more,
16 but less than four ounces, of a specified illegal drug or
17 possession of eight pounds or more or 75 plants or more, but
18 less than 16 pounds or 100 plants, or distribution of more than
19 five pounds but less than ten pounds of marijuana.
20 "Level four offense." Possession of 16 ounces or more or
21 distribution of four ounces or more of a specified illegal drug
22 or possession of 16 pounds or more or 100 plants or more or
23 distribution of ten pounds or more of marijuana.
24 "Participates in the illegal drug market." To distribute,
25 possess with an intent to distribute, commit an act intended to
26 facilitate the marketing or distribution of, or agree to
27 distribute, possess with an intent to distribute, or commit an
28 act intended to facilitate the marketing and distribution of an
29 illegal drug. The term does not include the purchase or receipt
30 of an illegal drug for personal use only.
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1 "Period of illegal drug use." In relation to an individual
2 drug user, the time of first use by the individual of an illegal
3 drug to the accrual of the cause of action. The period of
4 illegal drug use is presumed to commence two years before the
5 cause of action accrues unless the defendant proves otherwise by
6 clear and convincing evidence.
7 "Person." An individual, a governmental entity, corporation,
8 firm, trust, partnership, or incorporated or unincorporated
9 association existing under or authorized by the laws of this
10 Commonwealth, another state or a foreign country.
11 "Place of illegal drug activity." In relation to an
12 individual drug user, each county in which the individual
13 possesses or uses an illegal drug or in which the individual
14 resides, attends school or is employed during the period of the
15 illegal drug use of the individual, unless the defendant proves
16 otherwise by clear and convincing evidence.
17 "Place of participation." In relation to a defendant in an
18 action is brought under this act, each county in which that
19 person participates in the illegal drug market or in which that
20 person resides, attends school or is employed during the period
21 that that person participates in the illegal drug market.
22 "Plaintiff." A person or individual drug user who brings a
23 private action under section 4 or 5.
24 "Specified illegal drug." A drug, the distribution of which
25 is a violation of the act of April 14, 1972 (P.L.233, No.64),
26 known as The Controlled Substance, Drug, Device and Cosmetic
27 Act.
28 Section 3. Imposition of liability for participation in illegal
29 drug market.
30 (a) General rule.--A person who knowingly participates in
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1 the illegal drug market within this Commonwealth shall be liable
2 for civil damages under this act.
3 (b) Exception.--A law enforcement officer or agency, the
4 Commonwealth or a person acting at the lawful direction of a law
5 enforcement officer or agency of the Commonwealth may not be
6 liable for civil damages under this act if the Commonwealth,
7 such officer, agency or person participates in the drug market
8 solely to further an official investigation. AT THE SPECIFIC <--
9 DIRECTION OF AN AUTHORIZED LAW ENFORCEMENT OFFICER PURSUANT TO A
10 POLICE INVESTIGATION.
11 Section 4. Private actions by certain persons.
12 (a) Persons entitled to recover.--One or more of the
13 following persons may bring a private action for civil damages
14 caused by use of an illegal drug by an individual drug user:
15 (1) A parent, legal guardian, child, spouse or sibling <--
16 OR SPOUSE of the individual drug user. <--
17 (2) An individual who was exposed to an illegal drug in
18 utero.
19 (3) An employer of the individual drug user. <--
20 (4) (3) A medical facility, insurer, governmental <--
21 entity, employer or other entity that funds a drug treatment
22 program or employee assistance program for the individual
23 drug user or that otherwise expends money on behalf of the
24 individual drug user that is not to be repaid.
25 (b) Persons liable for civil damages.--A person entitled to
26 bring an action under this section may seek civil damages from
27 one or more of the following:
28 (1) A person who knowingly distributed or knowingly
29 participated in the chain of distribution of an illegal drug
30 that was actually used by the individual drug user.
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1 (2) A person who knowingly participated in the illegal
2 drug market if:
3 (i) the place of the illegal drug activity by the
4 individual drug user is within the illegal drug market
5 target community of the defendant;
6 (ii) the defendant participated in the illegal drug
7 market and was connected with the same type of illegal
8 drug used by the individual drug user; and
9 (iii) the defendant participated in the illegal drug
10 market at any time during the illegal drug use of the
11 individual drug user.
12 (c) Persons not liable for civil damages.--An individual who
13 was exposed to an illegal drug in utero may not bring an action
14 against his or her natural mother.
15 (d) Elements of civil damages.--A person entitled to bring
16 an action under this section may recover all of the following
17 civil damages:
18 (1) Economic damages, including, but not limited to, the
19 cost of treatment and rehabilitation, medical expenses, loss
20 of economic or educational potential, loss of productivity,
21 absenteeism, support expenses, accidents or injury and any
22 other pecuniary loss proximately caused by the use of an
23 illegal drug by an individual drug user.
24 (2) Noneconomic damages, including, but not limited to,
25 physical and emotional pain, suffering, physical impairment,
26 emotional distress, mental anguish, disfigurement, loss of
27 enjoyment, loss of companionship, services and consortium and
28 other nonpecuniary losses proximately caused by the use of an
29 illegal drug by an individual drug user.
30 (3) Exemplary damages.
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1 (4) Reasonable attorney fees.
2 (5) Cost of suit, including, but not limited to,
3 reasonable expenses for expert testimony.
4 Section 5. Private actions by individual drug users.
5 (a) Conditions for bringing action.--An individual drug user
6 may bring and maintain a private action for damages caused by
7 the use of an illegal drug only if all of the following
8 conditions are met:
9 (1) the individual drug user personally discloses to
10 narcotics enforcement authorities, more than six months
11 before bringing the action, all of the information known to
12 the individual drug user regarding the individual drug user's
13 source of illegal drugs;
14 (2) the individual drug user has not used an illegal
15 drug within the six 12 months prior to filing the action; and <--
16 (3) the individual drug user does not use an illegal
17 drug throughout the pendency of the action.
18 (b) Persons against whom action may be brought.--An
19 individual drug user entitled to bring a private action under
20 this section may seek damages only from a person who distributed
21 or is in the chain of distribution of an illegal drug that was
22 actually used by the individual drug user.
23 (c) Elements of damages.--An individual drug user entitled
24 to bring an action under this section may recover only the
25 following damages:
26 (1) economic damages, including, but not limited to, the
27 cost of treatment, rehabilitation and medical expenses, loss
28 of economic or educational potential, loss of productivity,
29 absenteeism, accidents or injury and other pecuniary loss
30 proximately caused by the use of an illegal drug by the
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1 individual drug user;
2 (2) reasonable attorney fees; and
3 (3) costs of suit, including, but not limited to,
4 reasonable expenses for expert testimony.
5 Section 6. Indemnification prohibited.
6 A third party WHO HAD ENTERED INTO A CONTRACT TO PROVIDE <--
7 INSURANCE OR INDEMNIFICATION TO A PERSON AGAINST WHOM AN ACTION
8 IS BROUGHT UNDER THIS ACT, WHICH WAS IN EFFECT ON ANY DATE
9 DURING WHICH THE CAUSE OF ACTION IS ALLEGED TO HAVE OCCURRED,
10 shall neither pay damages awarded under this act, nor provide a
11 defense or money for a defense, on behalf of a person insured
12 under a SAID contract of insurance or indemnification. Nothing <--
13 in this act shall prevent a third party from providing a defense
14 or money for a defense to any officer, agency, person or the
15 Commonwealth covered under section 3(b).
16 Section 7. Determination of illegal drug market target
17 community.
18 A person whose participation in the illegal drug market
19 constitutes the following level offense shall be considered to
20 have the following illegal drug market target community:
21 (1) For a level one offense, the county in which the
22 place of participation of the defendant is situated.
23 (2) For a level two offense, the target community
24 described in paragraph (1) along with all counties with a
25 border contiguous to that target community.
26 (3) For a level three offense, the target community
27 described in paragraph (2) plus all counties with a border
28 contiguous to that target community.
29 (4) For a level four offense, the Commonwealth.
30 Section 8. Joinder of parties.
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1 (a) Plaintiffs.--Two or more persons or individual drug
2 users may join in one private action under this act as
3 plaintiffs if their respective actions have at least one place
4 of illegal drug activity in common and if any portion of the
5 period of illegal drug use overlaps with the period of illegal
6 drug use for every other plaintiff.
7 (b) Defendants.--Two or more persons may be joined in one
8 private action under this act as defendants if those persons are
9 liable to at least one plaintiff.
10 (c) Common interest not required.--A plaintiff need not be
11 interested in obtaining and a defendant need not be interested
12 in defending against all the relief demanded. Judgment may be
13 given for one more plaintiffs according to their respective
14 civil damages.
15 Section 9. Comparative negligence AFFIRMATIVE DEFENSES. <--
16 (a) General rule.--A defendant in an action brought by an
17 individual drug user under section 5 may plead comparative <--
18 negligence as an ANY JUDICIALLY RECOGNIZED affirmative defense <--
19 against the individual drug user. If proved under subsection
20 (b), such comparative negligence THE AFFIRMATIVE DEFENSE shall <--
21 not bar recovery but shall diminish the award of civil damages
22 to the individual drug user proportionally, according to the <--
23 measure of negligence attributed to the individual drug user.
24 ACCORDING TO LAW. <--
25 (b) Burden of proof.--The burden of proving the comparative <--
26 negligence of an individual drug user is on the defendant and AN <--
27 AFFIRMATIVE DEFENSE IS ON THE DEFENDANT AND shall be shown by
28 clear and convincing evidence.
29 (c) Negligence COMPARATIVE NEGLIGENCE not attributed to <--
30 certain plaintiffs.--Comparative negligence shall not be plead
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1 as an affirmative defense attributed to a person who brings a
2 private action under section 4.
3 Section 10. Right of contribution.
4 A person subject to liability under this act has the right of
5 contribution set forth in 42 Pa.C.S. § 8324 (relating to right
6 of contribution) against another person subject to liability
7 under this act. Such right of contribution may be plead either
8 in the private action brought under this act or by a separate
9 action brought for that purpose. A plaintiff may seek recovery
10 in accordance with this act and existing law against any person
11 against whom a defendant in the private action asserts a right
12 of contribution.
13 Section 11. Procedure at trial.
14 (a) Burden of proof.--Proof that a person participates in
15 the illegal drug market in an action brought under this act
16 shall be shown by clear and convincing evidence. Except as
17 otherwise provided in this act, other elements of the cause of
18 action shall be shown by a preponderance of the evidence.
19 (b) Effect of conviction for drug law violation.--A person
20 against whom recovery is sought under this act and who has been
21 convicted of a violation of the act of April 14, 1972 (P.L.233,
22 No.64), known as The Controlled Substance, Drug, Device and
23 Cosmetic Act, or the Comprehensive Drug Abuse Prevention and
24 Control Act of 1970 (Public Law 91-513, 84 Stat. 1236) WITHIN <--
25 TEN YEARS FROM THE DATE ON WHICH A CAUSE OF ACTION UNDER THIS
26 ACT IS FILED shall be estopped from denying that such person
27 participates in the illegal drug market. A conviction under
28 Federal or State law set forth in this subsection also shall be <--
29 prima facie evidence that the person participates FORTH IN THIS <--
30 SUBSECTION SHALL BE ADMISSIBLE EVIDENCE ON THE ISSUE OF WHETHER
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1 THE PERSON PARTICIPATED in the illegal drug market during the
2 two years preceding the date of an act giving rise to the
3 conviction.
4 (c) Absence of conviction not a bar.--The absence of a
5 conviction under Federal or State law set forth in subsection
6 (b) of a person against whom recovery is sought does not bar a
7 private action under this act against that person.
8 Section 12. Judgment procedure. <--
9 (a) Prejudgment attachment.--A plaintiff subject to
10 subsection (c) may request an ex parte prejudgment attachment
11 order from the court against all assets of a defendant
12 sufficient to satisfy a potential award. If attachment is
13 instituted, a defendant is entitled to an immediate hearing.
14 Attachment may be lifted if the defendant demonstrates that the
15 assets will be available for a potential award or if the
16 defendant posts a bond sufficient to cover a potential award.
17 (b) Exemption of property prohibited.--A defendant against
18 whom a judgment has been rendered under this act is not eligible
19 to exempt any property, of whatever kind, from process to levy
20 or process to execute on the judgment.
21 (c) Property subject to forfeiture action.--Any assets
22 sought to satisfy a judgment under this act that are named in a
23 forfeiture section or have been seized for forfeiture by any
24 Federal or State agency may not be used to satisfy a judgment
25 unless and until the assets have been released following the
26 conclusion of the forfeiture action or are released by the
27 agency that seized the assets.
28 Section 13 12. Time for commencement of action. <--
29 (a) General rule.--Except as otherwise provided in this
30 section, a private action under section 4 or 5 shall not be
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1 brought more than two THREE years after the cause of action <--
2 accrues. A cause of action accrues under this act when a person
3 who may bring the private action under section 4 or 5 has reason
4 to know of the harm from illegal drug use that is the basis for
5 the private action and has reason to know that the illegal drug
6 use is the cause of the harm.
7 (b) Extension of time.--For a plaintiff who is an individual
8 drug user, the statute of limitations under this section shall
9 be tolled if the individual drug user becomes incapacitated by
10 the use of an illegal drug to the extent that the individual
11 cannot reasonably be expected to seek recovery under this act or
12 as otherwise provided for by law. For a defendant, the statute
13 of limitations under this section shall be tolled until six
14 months after the defendant is convicted of a violation of
15 Federal or State Law set forth in section 11(b).
16 (c) Claims antedating act.--The statute of limitations under
17 subsection (a) for a private action based on a person who
18 participated in the illegal drug market prior to the effective
19 date of this act shall not begin to run until the effective date
20 of this act.
21 Section 14 13. Representation for Commonwealth. <--
22 The Attorney General or a district attorney may represent the
23 Commonwealth or a political subdivision in any private action
24 brought under this act.
25 Section 15 14. Stay of action. <--
26 On motion by THE DEFENDANT OR BY a governmental agency <--
27 involved in an official investigation or prosecution that
28 involves the illegal drug market plead in a private action under
29 sections 4 or 5, such action shall be stayed until completion of
30 the criminal investigation or prosecution that gave rise to the
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1 motion.
2 Section 16 15. Effective date. <--
3 This act shall take effect in 60 days.
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