PRINTER'S NO. 3271
No. 2396 Session of 1990
INTRODUCED BY BLAUM, O'DONNELL, DeWEESE, KUKOVICH, LASHINGER,
HAYDEN, McHALE, JOSEPHS, KOSINSKI, BATTISTO, PESCI, TIGUE,
GIGLIOTTI, PETRONE, LLOYD, PHILLIPS, FREEMAN, BELARDI,
McNALLY, STABACK, GODSHALL, BELFANTI, TRELLO, CARLSON,
NAILOR, COY, LINTON, LAUGHLIN, PRESSMANN, PRESTON, HALUSKA,
D. F. CLARK, R. C. WRIGHT, SEMMEL, MERRY, WOZNIAK, RUDY,
PISTELLA, J. H. CLARK, JOHNSON, TANGRETTI, RYBAK, MELIO,
MICHLOVIC, NAHILL, HASAY, ADOLPH, JAMES, SERAFINI, OLASZ,
BUNT AND KENNEY, MARCH 28, 1990
REFERRED TO COMMITTEE ON JUDICIARY, MARCH 28, 1990
AN ACT
1 Prohibiting unreasonable restraints of trade; and providing for
2 penalties and for enforcement.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 Section 1. Short title.
6 This act shall be known and may be cited as the Pennsylvania
7 Antitrust Act.
8 Section 2. Declaration of policy.
9 The General Assembly finds and declares as follows:
10 (1) The purpose of this act is to promote the public
11 benefits of a competitive economic environment based on free
12 enterprise and to protect the economic welfare of consumers,
13 businesses and the Commonwealth.
14 (2) The provisions of this act which parallel provisions
1 of Federal antitrust statutes shall, to such extent possible,
2 be construed consistently with the Federal statutes and
3 pertinent Federal judicial opinions.
4 Section 3. Definitions.
5 The following words and phrases when used in this act shall
6 have the meanings given to them in this section unless the
7 context clearly indicates otherwise:
8 "Attorney General." Includes a designated deputy.
9 "Person." An individual, partnership, corporation,
10 association or other entity. The term includes a political
11 subdivision.
12 "Political subdivision." Includes an agency, a board, a
13 commission or an authority of a political subdivision.
14 "Trade secret." Anything which constitutes, represents,
15 evidences or records secret or confidential scientific,
16 technical, merchandising, production, management or commercial
17 information.
18 Section 4. Unreasonable restraints of trade.
19 A contract, combination or conspiracy in restraint of trade
20 or commerce in this Commonwealth is unlawful.
21 Section 5. Penalties.
22 (a) Criminal penalty.--
23 (1) A partnership, corporation, association or other
24 entity which violates section 4 commits a felony of the third
25 degree and shall, upon conviction, be sentenced to pay a fine
26 of not more than $1,000,000.
27 (2) An individual who violates section 4 commits a
28 felony of the third degree and shall, upon conviction, be
29 sentenced to pay a fine of not more than $100,000 or to
30 imprisonment for not more than three years, or both.
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1 (b) Enforcement.--The Attorney General shall have
2 jurisdiction to prosecute an action for a criminal penalty.
3 (c) Alternative civil penalty.--In lieu of criminal
4 prosecution under subsection (b), the Attorney General may elect
5 to bring an action for a civil penalty. In an action under this
6 subsection, a person who violates section 4 shall be liable for
7 a penalty of not more than $100,000 for each violation and for
8 the cost of suit, including reasonable attorney fees.
9 (d) Factors to be considered.--In determining the
10 appropriate sanctions to be imposed under this section, the
11 court shall consider at least the following factors:
12 (1) The prior criminal record of the violator.
13 (2) The size and amount of the contract involved, if
14 any.
15 (e) Disposition of fines and penalties.--Criminal fines and
16 civil penalties collected under this section shall be paid into
17 the State Treasury and deposited in the appropriate fund.
18 (f) Limitation of action.--An action under this section must
19 be commenced within four years after the violation of section 4
20 is committed.
21 (g) Double jeopardy.--A criminal prosecution under this
22 section may not be brought against a person previously charged
23 by information or indictment with a criminal violation of a
24 Federal antitrust statute if the Federal prosecution is based
25 upon substantially the same conduct upon which a prosecution
26 under this section could be based and jeopardy has attached
27 under the Federal prosecution.
28 (h) Other actions.--An action under this section does not
29 bar administrative sanctions or a civil action for damages or
30 injunctive relief under section 6.
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1 Section 6. Damages and injunctive relief.
2 (a) Cause of action.--
3 (1) A person injured in his business or property as a
4 result of an act prohibited by section 4 shall have a right
5 to bring a civil action for damages or injunctive relief.
6 (2) The Commonwealth, whether a direct or indirect
7 purchaser, when injured in its business or property as a
8 result of an act prohibited by section 4, shall have the
9 right to bring a civil action for damages or injunctive
10 relief. In an action by the Commonwealth as an indirect
11 purchaser, the court shall take necessary steps, including
12 transfer and consolidation, to avoid duplicate liability for
13 the same injury.
14 (b) Limitation of action.--A cause of action arises under
15 this section at the time the conduct in violation of section 4
16 is discovered or should have been discovered or, for a
17 continuing violation, at the time the latest violation of
18 section 4 is discovered or should have been discovered. An
19 action under this section must be brought within four years of
20 the date when the cause of action arises. During the pendency of
21 an action under section 5 and for one year after the action is
22 completed, the limitation under this subsection is tolled if the
23 action under this section is based in whole or in part on any
24 matter complained of in the action under section 5.
25 (c) Damages.--Damages recoverable under this section shall
26 be three times the actual damages sustained and the cost of
27 suit, including reasonable attorney fees.
28 (d) Costs in injunction actions.--In an injunction action in
29 which the plaintiff substantially prevails, the court shall
30 award the cost of suit, including reasonable attorney fees.
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1 (e) Liability.--Liability under this section shall be joint
2 and several; there shall be no right to contribution among
3 defendants. The provisions of 42 Pa.C.S. § 8324(a) (relating to
4 right of contribution) do not apply to actions under this
5 section.
6 (f) Notice to Attorney General.--Within ten days of filing a
7 complaint under this section, the plaintiff shall serve a copy
8 of the complaint upon the Attorney General by registered mail. A
9 copy of the certificate of service shall be filed with the
10 court.
11 (g) Collateral estoppel.--A criminal conviction for a
12 violation of section 4 shall be prima facie evidence as to
13 liability of the convicted participants in a civil action under
14 this section. This subsection does not apply to pleas of no
15 contest. Nothing contained in this subsection shall be construed
16 to impose a limitation on the application of collateral
17 estoppel.
18 (h) Authority of Attorney General.--The Attorney General
19 shall have authority under this section:
20 (1) To bring all actions on behalf of the Commonwealth.
21 (2) To bring an action as parens patriae on behalf of
22 individuals who have suffered an injury to their property by
23 reason of a violation of section 4 and who resided in this
24 Commonwealth when the violation occurred.
25 (3) To bring an action on behalf of a political
26 subdivision, if requested to do so by the political
27 subdivision.
28 (4) To intervene on behalf of the Commonwealth in any
29 action.
30 Section 7. Exemptions.
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1 (a) Sovereign immunity.--The Commonwealth shall not be
2 liable in actions under this act. Commonwealth officials and
3 employees acting in their official capacities shall not be
4 liable for penalties under section 5 or for damages, costs and
5 attorney fees under section 6.
6 (b) Governmental and official immunity.--Political
7 subdivisions and officials and employees of political
8 subdivisions acting in their official capacities shall not be
9 liable for penalties under section 5 or for damages, costs and
10 attorney fees under section 6.
11 (c) State action.--Conduct which results from a clearly
12 articulated and affirmatively expressed State policy and which
13 is actively supervised by the Commonwealth shall not constitute
14 a violation of section 4.
15 (d) Labor organizations.--The existence and operation of a
16 labor organization and the exercise of lawful activities of a
17 labor organization shall not constitute a violation of section
18 4.
19 (e) Cooperative associations.--The collective activities of
20 an agricultural or a horticultural cooperative association to
21 process, prepare for market, handle and market members'
22 products, whether or not the activities restrain competition
23 among the members of the association, shall not constitute a
24 violation of section 4.
25 (f) Business of insurance.--Section 4 does not apply to the
26 business of insurance to the extent that the business:
27 (1) is regulated by the Insurance Commissioner; and
28 (2) does not constitute a boycott, coercion or
29 intimidation or an agreement to boycott, coerce or
30 intimidate.
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1 (g) Public utilities.--Section 4 does not apply to
2 activities of, or to the rates charged by, a public utility as
3 defined in 66 Pa.C.S. § 102 (relating to definitions) to the
4 extent that those activities are required or rates are approved
5 by the Pennsylvania Public Utility Commission or a Federal
6 agency.
7 Section 8. Investigation.
8 (a) General power.--The Attorney General shall have
9 authority to investigate suspected violations of section 4 or of
10 Federal antitrust laws on behalf of the Commonwealth, its
11 citizens or a political subdivision.
12 (b) Attendance and production of documents.--Prior to the
13 institution of a civil action, the Attorney General is
14 authorized to require the attendance and testimony of witnesses
15 and the production of documents. For this purpose, the Attorney
16 General may issue subpoenas, examine witnesses and receive
17 evidence. If a person fails to comply with a subpoena or refuses
18 to give testimony, the Attorney General may petition
19 Commonwealth Court for an order directing the person to obey the
20 subpoena or comply with the request for testimony within the
21 period fixed by the court. Upon the filing of the petition, the
22 court shall issue a rule to show cause why it should not be
23 granted. If, after a hearing on the merits, it appears that the
24 subpoena or request was lawfully issued, the court shall grant
25 the petition.
26 (c) Confidentiality.--
27 (1) Except as provided in paragraphs (2) and (3),
28 information, including documents, discovered under this
29 section may not be disclosed to any person without the
30 written consent of the person who produced the information
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1 unless otherwise ordered by a court for cause shown.
2 (2) At the Attorney General's discretion, the Attorney
3 General may disclose information discovered under this
4 section to the United States Department of Justice, another
5 state or territory of the United States, the District of
6 Columbia, another agency of the Commonwealth or a political
7 subdivision, upon the prior certification of an appropriate
8 official of the requestor that the information will be
9 maintained in confidence other than use for official purposes
10 and that the requestor will abide by the provisions of
11 paragraph (1).
12 (3) The Attorney General may use information, including
13 documents, obtained under this section in an action brought
14 under this act or Federal antitrust statutes; however,
15 information relating to trade secrets may not be made public
16 in an action without the approval of the court in which the
17 action is pending, after notice to the person who produced
18 the information.
19 (d) Limitation on use.--No criminal prosecution under this
20 act may be brought by the Attorney General based solely upon
21 information or documents obtained in a civil investigation under
22 this section.
23 Section 9. Effective date.
24 This act shall take effect in 90 days.
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