PRINTER'S NO. 3603
No. 2622 Session of 1990
INTRODUCED BY VEON, GEORGE, RYBAK, TANGRETTI, BROUJOS, MELIO,
TIGUE, BLAUM, STABACK, BILLOW, KUKOVICH, FOX, FEE, KOSINSKI,
MAIALE, STISH, LEVDANSKY, BELFANTI, PESCI, WILLIAMS,
PISTELLA, MORRIS, TELEK, DeLUCA, JOSEPHS, LaGROTTA AND
HALUSKA, MAY 30, 1990
REFERRED TO COMMITTEE ON JUDICIARY, MAY 30, 1990
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, prohibiting unreasonable
3 restraints of trade; and providing for penalties and for
4 enforcement.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Chapter 83 of Title 42 of the Pennsylvania
8 Consolidated Statutes is amended by adding a subchapter to read:
9 CHAPTER 83
10 PARTICULAR RIGHTS AND IMMUNITIES
11 * * *
12 SUBCHAPTER H
13 ANTITRUST ACTIONS
14 Sec.
15 8381. Short title of subchapter.
16 8382. Declaration of policy.
17 8383. Definitions.
1 8384. Unreasonable restraints of trade.
2 8385. Penalties.
3 8386. Damages and injunctive relief.
4 8387. Exemptions.
5 8388. Investigation.
6 § 8381. Short title of subchapter.
7 This subchapter shall be known and may be cited as the
8 Pennsylvania Antitrust Act.
9 § 8382. Declaration of policy.
10 The General Assembly finds and declares as follows:
11 (1) The purpose of this subchapter is to promote the
12 public benefits of a competitive economic environment and to
13 protect the economic welfare of consumers, businesses and the
14 Commonwealth.
15 (2) The provisions of this subchapter which parallel
16 provisions of Federal antitrust statutes shall, to such
17 extent possible, be construed consistently with pertinent
18 Federal statutes and Federal judicial opinions.
19 § 8383. Definitions.
20 The following words and phrases when used in this subchapter
21 shall have the meanings given to them in this section unless the
22 context clearly indicates otherwise:
23 "Attorney General." Includes a designated deputy.
24 "Person." An individual, partnership, corporation,
25 association or other entity. The term includes a political
26 subdivision.
27 "Political subdivision." Includes an agency, a board, a
28 commission or an authority of a political subdivision.
29 "Trade secret." Anything which constitutes, represents,
30 evidences or records secret or confidential scientific,
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1 technical, merchandising, production, management or commercial
2 information.
3 § 8384. Unreasonable restraints of trade.
4 A contract, combination or conspiracy in restraint of trade
5 or commerce in this Commonwealth is unlawful.
6 § 8385. Penalties.
7 (a) Criminal penalty.--
8 (1) A partnership, corporation, association or other
9 entity which violates section 8384 (relating to unreasonable
10 restraints of trade) commits a felony of the third degree and
11 shall, upon conviction, be sentenced to pay a fine of not
12 more than $1,000,000.
13 (2) An individual who violates section 8384 commits a
14 felony of the third degree and shall, upon conviction, be
15 sentenced to pay a fine of not more than $100,000 or to
16 imprisonment for not more than three years, or both.
17 (b) Enforcement.--The Attorney General shall have
18 jurisdiction to prosecute an action for a criminal penalty.
19 (c) Alternative civil penalty.--In lieu of criminal
20 prosecution under subsection (b), the Attorney General may elect
21 to bring an action for a civil penalty. In an action under this
22 subsection, a person who violates section 8384 shall be liable
23 for a penalty of not more than $100,000 for each violation and
24 for the cost of suit, including a reasonable attorney fee.
25 (d) Factors to be considered.--In determining the
26 appropriate sanctions to be imposed under this section, the
27 court shall consider at least the following factors:
28 (1) The prior criminal record of the violator.
29 (2) The size and amount of the contract involved, if
30 any.
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1 (e) Disposition of fines and penalties.--Criminal fines and
2 civil penalties collected under this section shall be paid into
3 the State Treasury and deposited in the appropriate fund.
4 (f) Limitation of action.--An action under this section must
5 be commenced within four years after the violation of section
6 8384 is committed.
7 (g) Double jeopardy.--A criminal prosecution under this
8 section may not be brought against a person previously charged
9 by information or indictment with a criminal violation of a
10 Federal antitrust statute if the Federal prosecution is based
11 upon substantially the same conduct upon which a prosecution
12 under this section could be based and jeopardy has attached
13 under the Federal prosecution.
14 (h) Other actions.--An action under this section does not
15 bar administrative sanctions or a civil action for damages or
16 injunctive relief under section 8386 (relating to damages and
17 injunctive relief).
18 § 8386. Damages and injunctive relief.
19 (a) Cause of action.--
20 (1) A person injured in his business or property as a
21 result of an act prohibited by section 8384 (relating to
22 unreasonable restraints of trade) shall have a right to bring
23 a civil action for damages or injunctive relief.
24 (2) The Commonwealth, whether a direct or indirect
25 purchaser, when injured in its business or property as a
26 result of an act prohibited by section 8384 shall have the
27 right to bring a civil action for damages or injunctive
28 relief. In an action by the Commonwealth as an indirect
29 purchaser, the court shall take necessary steps, including
30 transfer and consolidation, to avoid duplicate liability for
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1 the same injury.
2 (b) Limitation of action.--A cause of action arises under
3 this section at the time the conduct in violation of section
4 8384 is discovered or should have been discovered or, for a
5 continuing violation, at the time the latest violation of
6 section 8384 is discovered or should have been discovered. An
7 action under this section must be brought within four years of
8 the date when the cause of action arises. During the pendency of
9 an action under section 8385 (relating to penalties) and for one
10 year after the action is completed, the limitation under this
11 subsection is tolled if the action under this section is based
12 in whole or in part on any matter complained of in the action
13 under section 8385.
14 (c) Damages.--Damages recoverable under this section shall
15 be three times the actual damages sustained and the cost of
16 suit, including a reasonable attorney fee.
17 (d) Costs in injunction actions.--In an injunction action in
18 which the plaintiff substantially prevails, the court shall
19 award the cost of suit, including a reasonable attorney fee.
20 (e) Liability.--Liability under this section shall be joint
21 and several. There shall be no right to contribution among
22 defendants. The provisions of section 8324(a) (relating to right
23 of contribution) do not apply to actions under this section.
24 (f) Notice to Attorney General.--Within ten days of filing a
25 complaint under this section, the plaintiff shall serve a copy
26 of the complaint upon the Attorney General by registered mail. A
27 copy of the certificate of service shall be filed with the
28 court.
29 (g) Collateral estoppel.--A criminal conviction for a
30 violation of section 8384 shall be prima facie evidence as to
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1 liability of the convicted participants in a civil action under
2 this section. This subsection does not apply to pleas of no
3 contest. Nothing contained in this subsection shall be construed
4 to impose a limitation on the application of collateral
5 estoppel.
6 (h) Authority of Attorney General.--The Attorney General
7 shall have authority under this section:
8 (1) To bring all actions on behalf of the Commonwealth.
9 (2) To bring an action as parens patriae on behalf of
10 individuals who have suffered an injury to their property by
11 reason of a violation of section 8384 and who resided in this
12 Commonwealth when the violation occurred.
13 (3) To bring an action on behalf of a political
14 subdivision, if requested to do so by the political
15 subdivision.
16 (4) To intervene on behalf of the Commonwealth in any
17 action.
18 § 8387. Exemptions.
19 (a) Sovereign immunity.--The Commonwealth shall not be
20 liable in actions under this act. Commonwealth officials and
21 employees acting in their official capacities shall not be
22 liable for penalties under section 8385 (relating to penalties)
23 or for damages, costs and attorney fees under section 8386
24 (relating to damages and injunctive relief).
25 (b) Governmental and official immunity.--Political
26 subdivisions and officials and employees of political
27 subdivisions acting in their official capacities shall not be
28 liable for penalties under section 8385 or for damages, costs
29 and attorney fees under section 8386.
30 (c) State action.--Conduct which results from a clearly
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1 articulated and affirmatively expressed State policy and which
2 is actively supervised by the Commonwealth shall not constitute
3 a violation of section 8384 (relating to unreasonable restraints
4 of trade).
5 (d) Labor organizations.--The existence and operation of a
6 labor organization and the exercise of lawful activities of a
7 labor organization shall not constitute a violation of section
8 8384.
9 (e) Cooperative associations.--The collective activities of
10 an agricultural or a horticultural cooperative association to
11 process, prepare for market, handle and market members'
12 products, whether or not the activities restrain competition
13 among the members of the association, shall not constitute a
14 violation of section 8384.
15 (f) Public utilities.--§ 8384 does not apply to activities
16 of, or to the rates charged by, a public utility as defined in
17 66 Pa.C.S. § 102 (relating to definitions) to the extent that
18 those activities are required or rates are approved by the
19 Pennsylvania Public Utility Commission or a Federal agency.
20 § 8388. Investigation.
21 (a) General power.--The Attorney General shall have
22 authority to investigate suspected violations of section 8384
23 (relating to unreasonable restraints of trade) or of Federal
24 antitrust laws on behalf of the Commonwealth, its citizens or a
25 political subdivision.
26 (b) Attendance and production of documents.--Prior to the
27 institution of a civil action, the Attorney General is
28 authorized to require the attendance and testimony of witnesses
29 and the production of documents. For this purpose, the Attorney
30 General may issue subpoenas, examine witnesses and receive
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1 evidence. If a person fails to comply with a subpoena or refuses
2 to give testimony, the Attorney General may petition
3 Commonwealth Court for an order directing the person to obey the
4 subpoena or comply with the request for testimony within the
5 period fixed by the court. Upon the filing of the petition, the
6 court shall issue a rule to show cause why it should not be
7 granted. If, after a hearing on the merits, it appears that the
8 subpoena or request was lawfully issued, the court shall grant
9 the petition.
10 (c) Confidentiality.--
11 (1) Except as provided in paragraphs (2) and (3),
12 information, including documents, discovered under this
13 section may not be disclosed to any person without the
14 written consent of the person who produced the information
15 unless otherwise ordered by a court for cause shown.
16 (2) At the Attorney General's discretion, the Attorney
17 General may disclose information discovered under this
18 section to the United States Department of Justice, another
19 state or territory of the United States, the District of
20 Columbia, another agency of the Commonwealth or a political
21 subdivision, upon the prior certification of an appropriate
22 official of the requestor that the information will be
23 maintained in confidence other than use for official purposes
24 and that the requestor will abide by the provisions of
25 paragraph (1).
26 (3) The Attorney General may use information, including
27 documents, obtained under this section in an action brought
28 under this subchapter or Federal antitrust statutes; however,
29 information relating to trade secrets may not be made public
30 in an action without the approval of the court in which the
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1 action is pending, after notice to the person who produced
2 the information.
3 (d) Limitation on use.--No criminal prosecution under this
4 subchapter may be brought by the Attorney General based solely
5 upon information or documents obtained in a civil investigation
6 under this section.
7 Section 2. This act shall take effect in 60 days.
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