Bill Text: PA HB1679 | 2009-2010 | Regular Session | Amended

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Bill Title: Providing for liability for false claims, for adoption of congressional intent of the Federal False Claims Act, for treble damages, costs and civil penalties, for powers of the Attorney General and for qui tam actions.

Spectrum: Slight Partisan Bill (Democrat 36-16)

Status: (Introduced - Dead) 2010-06-23 - Re-committed to APPROPRIATIONS [HB1679 Detail]

Download: Pennsylvania-2009-HB1679-Amended.html

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PRIOR PRINTER'S NO. 2120 PRINTER'S NO. 3960
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 1679 Session of2009
INTRODUCED BY GERBER, EACHUS, PAYTON, BELFANTI, BEYER, BOYLE, BRENNAN, BRIGGS, DALEY, FRANKEL, FREEMAN, GEIST, GIBBONS, GOODMAN, HARPER, HARRIS, HENNESSEY, HORNAMAN, JOSEPHS, KILLION, KIRKLAND, KORTZ, KULA, LENTZ, LONGIETTI, MAHONEY, MANDERINO, MANN, McGEEHAN, MELIO, MILNE, MOUL, MUNDY, MURT, MUSTIO, M. O'BRIEN, PALLONE, PASHINSKI, QUINN, SANTARSIERO, SIPTROTH, K. SMITH, M. SMITH, SOLOBAY, J. TAYLOR, VULAKOVICH, WALKO, WATSON, WHITE, DERMODY AND MARSHALL, JUNE 12, 2009
AS REPORTED FROM COMMITTEE ON HEALTH AND HUMAN SERVICES, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 22, 2010
AN ACT
Providing for liability for false claims, for adoption of
Congressional intent of the Federal False Claims Act, for
treble damages, costs and civil penalties, for powers of the
Attorney General and for qui tam actions.
TABLE OF CONTENTS
Chapter 1. Preliminary Provisions
Section 101. Short title.
Section 102. Declaration of policy.
Section 103. Definitions.
Chapter 3. False Claims
Section 301. Acts subjecting persons to liability for treble
damages, costs and civil penalties; exceptions.
Section 302. Attorney General investigations and prosecutions;
powers of prosecuting authority; civil actions by
individuals as qui tam plaintiff and as private
citizen; jurisdiction of courts.
Section 303. Limitation of actions; prior activities; burden of
proof.
Section 304. Remedies under other laws; severability of
provisions; liberality of legislative construction.
Section 305. Regulations.
Chapter 21. Miscellaneous Provisions
Section 2101. Effective date.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
CHAPTER 1
PRELIMINARY PROVISIONS
Section 101. Short title.
This act shall be known and may be cited as the False Claims
Act.
Section 102. Declaration of policy.
The General Assembly declares that this act adopts the intent
of Congress in enacting the Federal False Claims Act (Public Law
97-258, 31 U.S.C. §§ 3729-3733) on September 13, 1982, including
the amendments (Public Law 99-562, 100 Stat. 3153) enacted
October 27, 1986.
Section 103. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Claim." A request or demand for money, property or services <--
made to any employee, officer or agent of the Commonwealth, or
to any contractor, grantee or other recipient, whether under
contract or not, if any portion of the money, property or
services requested or demanded, issued from or was provided
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using Commonwealth funds, or if the Commonwealth will reimburse
the contractor, grantee or other recipient for any portion of
the money or property requested or demanded.
"Claim." As follows: <--
(1) A request or demand for money or property, whether
under contract or otherwise and regardless of whether the
Commonwealth has title to the money or property, which meets
any of the following:
(i) Is presented to an employee, officer or agent of
the Commonwealth.
(ii) Was made to a contractor, grantee or other
recipient and any portion of the money or property came
from or was provided using Commonwealth funds or the
money or property will be spent or used on the
Commonwealth's behalf or to advance a program or
interest.
(2) The term does not include requests or demands for
money or property the Commonwealth has paid to an individual
as compensation for employment or as an income subsidy with
no restrictions on the individual's use of the money or
property.
(3) To the extent it is not connected to a request or
demand for money or property, a filing with a Commonwealth
agency pursuant to the Commonwealth's insurance laws shall
not constitute a claim.
"Employer." A natural person, corporation, firm,
association, organization, partnership, business, trust or
Commonwealth-affiliated entity involved in a nongovernmental
function, including State universities and State hospitals.
"Knowingly." Whenever a person, with respect to information,
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does any of the following:
(1) Has actual knowledge of the information.
(2) Acts in deliberate ignorance of the truth or falsity
of the information.
(3) Acts in reckless disregard of the truth or falsity
of the information. Proof of specific intent to defraud is
not required.
"Material." A natural tendency to influence, or be capable <--
of influencing, the payment or receipt of money or property.
"Obligation." An established duty, whether or not fixed,
arising from any of the following:
(1) An express or implied contract.
(2) A grantor-grantee relationship.
(3) A licensor-licensee relationship.
(4) A fee-based or similar relationship.
(5) A statute or regulation.
(6) The retention of an overpayment.
"Official use." Any use that is consistent with the law and
the regulations and policies of the Office of Attorney General
including the following:
(1) Use in connection with internal memoranda and
reports.
(2) Communications between the Office of Attorney
General and a Federal, State or local government agency or a
contractor of a Federal, State or local government agency,
undertaken in furtherance of an investigation or prosecution
of an action.
(3) Interviews of a qui tam plaintiff or other witness.
(4) Oral examinations.
(5) Depositions.
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(6) Preparation for and response to civil discovery
requests.
(7) Introduction into the record of an action or
proceeding.
(8) Applications, motions, memoranda and briefs
submitted to a court or other tribunal.
(9) Communications with investigators, auditors,
consultants and experts, the counsel of other parties,
arbitrators and mediators, concerning an investigation,
action or proceeding.
"Person." A natural person, corporation, firm, association,
organization, partnership, business or trust.
"Qui tam plaintiff." A person bringing a civil action under
section 301.
CHAPTER 3
FALSE CLAIMS
Section 301. Acts subjecting persons to liability for treble
damages, costs and civil penalties; exceptions.
(a) Liability.--A person who commits acts prohibited in
subsection (b) shall be liable to the Commonwealth for three
times the amount of damages which the Commonwealth sustains
because of the act of that person.
(b) Prohibited acts.--A person who commits any of the
following acts shall also be liable to the Commonwealth for the <--
costs of a civil action brought to recover any of those
penalties or damages and shall be liable to the Commonwealth for
a civil penalty of not less than $5,000 and not more than
$10,000 for each violation:
(1) Knowingly presents or causes to be presented to an <--
employee, officer or agent of the Commonwealth or to a
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contractor, grantee or other recipient of Commonwealth funds,
a false or fraudulent claim for payment or approval.
(2) Knowingly makes, uses or causes to be made or used,
a false record or statement material to get a false or <--
fraudulent claim paid or approved. <--
(3) Conspires to defraud the Commonwealth by pursuing a <--
false claim that is allowed or paid or conspires to defraud
the Commonwealth by knowingly making, using or causing to be
made or used, a false record or statement to conceal, avoid
or decrease an obligation to pay or transmit money or
property to the Commonwealth.
(4) Has possession, custody or control of public
property or money used or to be used by the Commonwealth and
knowingly delivers or causes to be delivered less than all of <--
the money or property than the amount for which the person <--
receives a certificate or receipt.
(5) (4) Is authorized to make or deliver a document <--
certifying receipt of property used or to be used by the
Commonwealth and knowingly makes or delivers a receipt that
falsely represents the property used or to be used.
(6) (5) Knowingly buys or receives as a pledge of an <--
obligation or debt, public property from any person who
lawfully may not sell or pledge the property.
(7) Knowingly (6) Knowingly fails to disclose a fact, <--
event or occurrence or knowingly makes, uses or causes to be
made or used, a false record or statement to conceal, avoid <--
or decrease material to an obligation to pay or transmit <--
money or property to the Commonwealth or knowingly conceals,
or knowingly or improperly avoids or decreases an obligation
to pay or transmit money or property to the Commonwealth.
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(8) (7) Is a beneficiary of an inadvertent submission of <--
a false claim to any employee, officer or agent of the
Commonwealth or to any contractor, grantee or other recipient
of Commonwealth funds, subsequently discovers the falsity of
the claim and fails to disclose the false claim to the
Commonwealth within a reasonable time after discovery of the
false claim.
(8) Conspires to commit a violation of paragraph (1), <--
(2), (3), (4), (5), (6) or (7).
(c) Damages limitation.--Notwithstanding subsection (a), the
court may assess not less than two times the amount of damages
which the Commonwealth sustains because of the act of the person
described in that subsection and no civil penalty if the court
finds all of the following:
(1) The person committing the violation furnished the
Commonwealth officials who are responsible for investigating
false claims violations with all information known to that
person about the violation within 30 days after the date on
which the person first obtained the information.
(2) The person fully cooperated with any investigation
by the Commonwealth.
(3) At the time the person furnished the Commonwealth
with information about the violation, no criminal
prosecution, civil action or administrative action has had <--
commenced with respect to the violation, and the person did
not have actual knowledge of the existence of an
investigation into the violation.
(d) Exclusion.--This section does not apply to claims,
records or statements made under the act of March 4, 1971
(P.L.6, No.2), known as the Tax Reform Code of 1971.
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(e) Actions to recover damages and adjustment of <--
penalties.--A person who is liable for the damages or penalties
assessed under subsections (a) and (b) shall also be liable to
the Commonwealth for the costs of a civil action brought to
recover any of those damages or penalties. The civil penalties
payable under subsection (b) shall be adjusted from time to time
as provided in the Federal Civil Penalties Inflation Adjustment
Act of 1990 (28 U.S.C. 2461 note; Public Law 104-410).
Section 302. Attorney General investigations and prosecutions;
powers of prosecuting authority; civil actions by
individuals as qui tam plaintiff and as private
citizen; jurisdiction of courts.
(a) Responsibilities of the Attorney General.--The Attorney
General shall diligently investigate a violation of section 301.
If the Attorney General finds that a person has violated or is
violating section 301, the Attorney General may bring a civil
action under this section against that person.
(b) Actions by private persons.--
(1) A person may bring a civil action for a violation of
this act for the person and for the Commonwealth in the name
of the Commonwealth. The person bringing the action shall be
referred to as the qui tam plaintiff. Once filed, the action
shall be dismissed only with the written consent of the
court, taking into account the best interest of the parties
involved and the policy of this act.
(2) A copy of the complaint and written disclosure of
substantially all material evidence and information the qui
tam plaintiff possesses shall be served on the Attorney
General. The complaint shall be filed in camera and shall
remain under seal for at least 60 days and shall not be
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served on the defendant until the court orders the service.
The Commonwealth may elect to intervene and proceed with the
action within 60 days after it receives the complaint and the
material evidence and information.
(3) The Commonwealth may, for good cause shown, move the
court for extensions of the time during which the complaint
remains under seal under paragraph (2). The motions may be
supported by affidavits or other submissions in camera. The
defendant shall not be required to respond to any complaint
filed under this section until the complaint is unsealed and
served upon the defendant under the Pennsylvania Rules of
Civil Procedure.
(4) Before the expiration of the 60-day period or any
extensions obtained under paragraph (3), the Commonwealth
shall:
(i) proceed with the action, in which case the
action shall be conducted by the Commonwealth; or
(ii) notify the court it declines to take over the
action, in which case the person bringing the action
shall have the right to conduct the action.
(5) (i) If a municipality is named as a coplaintiff <--
with the Commonwealth in an action brought under this
subsection, the qui tam plaintiff or the Commonwealth
may, notwithstanding a seal on the action ordered by the
court, serve the complaint, other pleadings and written
disclosure of substantially all material evidence and
information possessed by the qui tam plaintiff on the
appropriate local law enforcement authorities.
(ii) If information about an action is shared with
local law enforcement under subparagraph (i), the seal on
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the action ordered by the court shall apply to the
subject municipality and local law enforcement
authorities to the same extent as the seal applied to
other parties in the action.
(c) Intervention.--When a person brings a valid action under
this subsection, no person other than the Commonwealth may
intervene or bring a related action based on the facts
underlying the pending action.
(d) Rights of the parties to qui tam actions.--
(1) If the Commonwealth proceeds with the action, it
shall have the primary responsibility for prosecuting the
action and shall not be bound by an act of the person
bringing the action. The qui tam plaintiff shall have the
right to continue as a party to the action, subject to the
limitations set forth in paragraph (2).
(2) (i) The Commonwealth may move to dismiss the action
for good cause despite the objections of the qui tam
plaintiff if the qui tam plaintiff has been notified by
the Commonwealth of the filing of the motion and the
court has provided the qui tam plaintiff with an
opportunity to oppose the motion and present evidence at
a hearing.
(ii) The Commonwealth may settle the action with the
defendant despite the objections of the qui tam plaintiff
if the court determines, after a hearing providing the
qui tam plaintiff an opportunity to present evidence, the
proposed settlement is fair, adequate and reasonable
under the circumstances.
(iii) Upon a showing by the Commonwealth that
unrestricted participation during the course of the
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litigation by the qui tam plaintiff would interfere with
or unduly delay the Commonwealth's prosecution of the
case or would be repetitious, irrelevant or harassment,
the court may, in its discretion, impose limitations on
the qui tam plaintiff's participation by:
(A) limiting the number of witnesses the person
may call;
(B) limiting the length of the testimony of the
witnesses;
(C) limiting the qui tam plaintiff's cross-
examination of witnesses; or
(D) otherwise limiting the participation by the
person in the litigation.
(iv) Upon a showing by the defendant that
unrestricted participation during the litigation by the
qui tam plaintiff initiating the action would be for
purposes of harassment or would cause the defendant undue
burden or unnecessary expense, the court may limit the
participation by the qui tam plaintiff in the litigation.
(3) If the Commonwealth elects not to proceed with the
action, the qui tam plaintiff shall have the right to conduct
the action. If the Commonwealth requests, it shall be served
with copies of all pleadings filed in the action and shall be
supplied with copies of all deposition transcripts at the
Commonwealth's expense. When a person proceeds with the
action, the court, without limiting the status and rights of
the qui tam plaintiff, may permit the Commonwealth to
intervene at a later date upon a showing of good cause.
(4) Whether or not the Commonwealth proceeds with the
action, upon a showing by the Commonwealth that certain
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actions of discovery by the qui tam plaintiff would interfere
with the Commonwealth's investigation or prosecution of a
criminal or civil matter arising out of the same facts, the
court may stay the discovery for a period of not more than 60
days. The showing shall be conducted in camera. The court may
extend the 60-day period upon a further showing in camera
that the Commonwealth has pursued the criminal or civil
investigation or proceedings with reasonable diligence and
the discovery proposed in the civil action will interfere
with the ongoing criminal or civil investigations or
proceedings.
(5) Notwithstanding subsection (b), the Commonwealth may
elect to pursue its claim through an alternate remedy
available to the Commonwealth, including an administrative
proceeding to determine a civil money penalty. If the
alternate remedy is pursued in another proceeding, the qui
tam plaintiff shall have the same rights in the proceeding as
if the action continued under this section. A finding of fact
or conclusion of law made in the other proceeding that has
become final shall be conclusive on all parties to an action
under this section. A finding or conclusion is final if it
has been finally determined on appeal to the appropriate
court of the Commonwealth, if the time for filing the appeal
regarding the finding or conclusion has expired or if the
finding or conclusion is not subject to judicial review.
(e) Award to qui tam plaintiff.--
(1) If the Commonwealth proceeds with an action brought
by a qui tam plaintiff, the qui tam plaintiff shall, subject
to the provisions of this paragraph, receive at least 15% but
not more than 25% of the proceeds of the action or settlement
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of the claim, including damages, civil penalties, payments
for costs of compliance and any other economic benefit
realized by the Commonwealth as a result of the action,
depending upon the extent to which either or both the person
and his counsel substantially contributed to the prosecution
of the action. Where the court finds the action is based
primarily on disclosures of specific information, other than
information provided by the qui tam plaintiff, relating to
allegations or transactions specifically in a criminal, civil
or administrative hearing or in a legislative or
administrative report, hearing, audit or investigation or
from the news media, the court may award the sums as it
considers appropriate, but in no case more than 10% of the
proceeds, taking into account the significance of the
information and the role of the person bringing the action in
advancing the case to litigation. A payment to a person under
the first or second sentence of this paragraph shall be made
from the proceeds. The person shall also receive an amount
for reasonable expenses which the appropriate judge finds was
necessarily incurred, plus reasonable attorney fees and
costs. The expenses, fees and costs shall be awarded against
the defendant.
(2) If the Commonwealth does not proceed with an action
under this section, the qui tam plaintiff shall receive an
amount which the court decides is reasonable for collecting
the civil penalty and damages. The amount shall not be less
than 25% and not more than 30% of the proceeds of the action
or settlement and shall be paid out of the proceeds, which
includes damages, civil penalties, payments for costs of
compliance and any other economic benefit realized by the
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government as a result of the action. The person shall also
receive an amount for reasonable expenses which the
appropriate Commonwealth court judge finds to have been
necessarily incurred, plus reasonable attorney fees and
costs. All the expenses, fees and costs shall be awarded
against the defendant.
(3) Whether or not the Commonwealth proceeds with the
action, if the court finds the action was filed by a person
who planned and initiated the violation of section 301(a)
upon which the action was filed, then the court may, to the
extent the court considers appropriate, reduce the share of
the proceeds of the action which the person would otherwise
receive under paragraph (1) or (2), taking into account the
role of that person in advancing the case to litigation and
any relevant circumstances pertaining to the violation. If
the person bringing the action is convicted of criminal
conduct arising from his or her role in the violation of
section 301(a), that person shall be dismissed from the civil
action and shall not receive a share of the proceeds of the
action. The dismissal shall not prejudice the right of the
Commonwealth to continue the action.
(4) If the Commonwealth does not proceed with the action
and the person bringing the action conducts the action, the
court may award to the defendant its reasonable attorney fees
and expenses if the defendant prevails in the action and the
court finds the claim of the person bringing the action was
clearly frivolous, clearly vexatious or brought primarily for
purposes of harassment.
(f) Certain actions barred.--
(1) No court shall have jurisdiction over an action
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brought under subsection (b) against a member of the
legislative branch, a member of the judiciary or a senior
executive branch official if the action is based on evidence
or information known to the Commonwealth when the action was
brought.
(2) In no event may a person bring an action under
subsection (b) which is based upon allegations or
transactions which are the subject of a civil suit or an
administrative civil penalty proceeding for money in which
the Commonwealth is already a party.
(3) Upon the motion of the Attorney General, the court
may, in consideration of all the equities, dismiss a relator
of the elements of the actionable false claims alleged in the
qui tam complaint which have been publicly disclosed,
specifically in the news media or in a publicly disseminated
governmental report, at the time the complaint is filed.
(g) Commonwealth not liable for certain expenses.--The
Commonwealth is not liable for expenses which a person incurs in
bringing an action under this section.
(h) Private action for retaliation action.--An employee, <--
contractor or agent who is discharged, demoted, suspended,
threatened, harassed or in any other manner discriminated
against in the terms and conditions of employment by the <--
employer, contract or agency because of lawful acts by the <--
employee, contractor or agent on behalf of the employee or <--
others, contractor or agent or associated others in furtherance <--
of an action under this section or efforts to stop one or more <--
violations of this act, including investigation for, initiation
of, testimony for or assistance in an action filed or to be
filed under this section, shall be entitled to all relief
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necessary to make the employee, contractor or agent whole. The <--
relief shall include reinstatement with the same seniority
status the employee, contractor or agent would have had but for <--
the discrimination, two times the amount of back pay, interest
on the back pay, and compensation for any special damages <--
sustained as a result of the discrimination, including
litigation costs and reasonable attorney fees. An employee may <--
bring an action in an appropriate court of this Commonwealth for
the relief provided in this subsection. Commonwealth Court shall <--
have exclusive jurisdiction for all actions seeking relief under
this subsection.
(i) Civil investigative demand.--
(1) (i) The Attorney General shall have the authority
to issue civil investigative demands under paragraph (2).
(ii) Nothing in this subsection shall be construed
to limit the regulatory or investigative authority of any
department or agency of the Commonwealth whose functions
may relate to persons, enterprises or matters falling
within the scope of this chapter.
(2) (i) Whenever the Attorney General has reason to
believe that any person or enterprise may be in
possession, custody or control of documentary material
relevant to an investigation under this chapter, the
Attorney General may issue in writing, and cause to be
served upon the person or enterprise, a civil
investigative demand requiring the production of the
material for examination.
(ii) Each demand shall:
(A) state the nature of the conduct constituting
the alleged violation which is under investigation,
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the applicable provision of law and the connection
between the documentary material demanded and the
conduct under investigation;
(B) describe the class or classes of documentary
material to be produced with sufficient definiteness
and certainty to permit the material to be fairly
identified;
(C) state the demand is returnable or prescribe
a return date which will provide a reasonable time
period within which the material demanded may be
assembled and made available for inspection and
copying or reproduction;
(D) identify an investigator to whom the
material shall be made available; and
(E) contain the following statement printed
conspicuously at the top of the demand: "You have the
right to seek the assistance of an attorney and he
may represent you in all phases of the investigation
of which this civil investigative demand is a part."
(iii) The demand shall not:
(A) contain a requirement which would be held to
be unreasonable if contained in a subpoena duces
tecum issued by any court in connection with a grand
jury investigation of such alleged violation; or
(B) require the production of documentary
evidence which would be privileged from disclosure if
demanded by a subpoena duces tecum issued by a court
in connection with a grand jury investigation of the
alleged violation.
(iv) Service of any such demand or any petition
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filed under this paragraph shall be made in the manner
prescribed by the Pennsylvania Rules of Civil Procedure
for service of writs and complaints.
(v) A verified return by the individual serving a
demand or petition setting forth the manner of the
service shall be prima facie proof of the service. In the
case of service by registered or certified mail, the
return shall be accompanied by the return post office
receipt of delivery of the demand.
(vi) (A) Any party upon whom any demand issued
under this subsection has been duly served shall make
the material available for inspection and copying or
reproduction to the investigator designated at the
principal place of business of the party, or at the
other place as the investigator and party may agree
or as the court may direct under this paragraph, on
the return date specified in the demand. The party
may upon agreement of the investigator substitute
copies of all or any part of the material for the
originals.
(B) The investigator to whom documentary
material is delivered shall take physical possession
of it and shall be responsible for the use for which
it is made and for its return under this paragraph.
The investigator may cause the preparation of copies
of the documentary material as may be required for
official use. While in the possession of the
investigator, no material produced shall be available
for examination without the consent of the party who
produced the material by an individual other than the
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Attorney General or investigator. Under reasonable
terms and conditions as the Attorney General shall
prescribe, documentary material while in the
possession of the investigator shall be available for
examination by the party who produced the material or
a duly authorized representative of the party.
(C) Upon completion of the investigation for
which documentary material was produced under this
paragraph and any case or proceeding arising from the
investigation, the investigator shall return to the
party who produced the material all the material
other than copies made under this paragraph which
have not passed into the control of any court or
grand jury through introduction into the record of
the case or proceeding.
(D) When documentary material has been produced
by a party under this paragraph for use in an
investigation and no case or proceeding arising
therefrom has been instituted within a reasonable
time after completion of the examination and analysis
of all evidence assembled in the course of the
investigation, the party shall be entitled, upon
written demand made upon the Attorney General, to the
return of all documentary material, other than copies
made under this paragraph, produced by the party.
(vii) Whenever a person or enterprise fails to
comply with a civil investigative demand duly served upon
him under this paragraph or whenever satisfactory copying
or reproduction of the material cannot be done and the
party refuses to surrender the material, the Attorney
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General may file, in the court of common pleas, for a <--
county in which the party resides or transacts business,
Commonwealth Court, and serve upon the party a petition <--
for an order of the court for the enforcement of this
paragraph, except that if the person transacts business <--
in more than one county the petition shall be filed in
the county in which the party maintains its principal
place of business.
(viii) Within 20 days after the service of the
demand upon a person or enterprise, or at any time before
the return date specified in the demand, whichever period
is shorter, the party may file, in the court of common <--
pleas of the county within which the party resides or
transacts business Commonwealth Court, and serve upon the <--
Attorney General a petition for an order of the court
modifying or setting aside the demand. The time allowed
for compliance with the demand in whole or in part as
deemed proper and ordered by the court shall not run
during the pendency of the petition in the court. The
petition shall specify each ground upon which the
petitioner relies in seeking the relief, and may be based
upon a failure of the demand to comply with the
provisions of this paragraph or upon a constitutional or
other legal right or privilege of the party.
(ix) When the Attorney General is in custody or
control of documentary material delivered by a party in
compliance with a demand, the party may file, in the <--
court of common pleas of the county within which the
documentary material was delivered Commonwealth Court, <--
and serve upon the Attorney General a petition for an
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order of the court requiring the performance of a duty
imposed by this paragraph.
(x) Whenever a petition is filed in a court of <--
common pleas under this paragraph, the court shall have
jurisdiction to hear and determine the matter so
presented, and, after a hearing at which all parties are
represented, to enter an order as may be required to
carry into effect the provisions of this paragraph.
(3) Whenever an individual refuses, on the basis of his
Fifth Amendment privilege against self-incrimination, to
comply with a civil investigative demand issued under
paragraph (2), the Attorney General may invoke the provisions
of 42 Pa.C.S. § 5947 (relating to immunity of witnesses).
(4) The Attorney General may delegate the authority to <--
issue civil investigative demands under this subsection. If a
civil investigative demand is an express demand for the
production of discovery, the Attorney General or his designee
shall cause to be served, in any manner authorized under this
subsection, a copy of the demand upon the person from whom
the discovery was obtained and shall notify the person to
whom the demand is issued of the date on which the copy was
served. Any information obtained by the Attorney General or
his designee under this subsection may be shared with a qui
tam plaintiff if the Attorney General or his designee
determines it is necessary as part of an investigation of a
claim.
Section 303. Limitation of actions; prior activities; burden of
proof.
(a) Statute of limitations.--A limitations.-- <--
(1) A civil action under section 302 may not be brought
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more than ten years after the date on which the violation was
committed.
(2) (i) If the Commonwealth elects to intervene and <--
proceed with an action brought under section 302(b), the
Commonwealth may file its own complaint or amend the
complaint of the qui tam plaintiff who brought the action
in order to clarify or add detail to the claims and to
add any additional claims with respect to which the
Commonwealth contends it is entitled to relief.
(ii) If the Commonwealth makes an election under
subparagraph (i), any such Commonwealth pleading shall
relate back to the filing date of the complaint of the
qui tam plaintiff to the extent that the claim of the
Commonwealth arises out of the conduct, transactions or
occurrences set forth, or attempted to be set forth, in
the qui tam plaintiff's complaint.
(b) Burden of proof.--In any action brought under section
302, the Commonwealth or the qui tam plaintiff shall be required
to prove all essential elements of the cause of action,
including damages, by a preponderance of the evidence.
(c) Estoppel.--Notwithstanding any other provision of law, a
guilty verdict rendered in a criminal proceeding charging false
statements or fraud, whether upon a verdict after trial or upon
a plea of guilty or nolo contendere, shall estop the defendant
from denying the essential elements of the offense in any action
which involves the same transaction as in the criminal
proceeding and which is brought under section 302(a) or (b).
Section 304. Remedies under other laws; severability of
provisions; liberality of legislative construction.
(a) Remedies under other laws.--The provisions of this act
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are not exclusive and the remedies provided for in this act
shall be in addition to any other remedies provided for in any
other law or available under common law.
(b) Liberality of legislative construction.--This chapter
shall be liberally construed and applied to promote the public
interest.
Section 305. Regulations.
(a) General rule.--The Attorney General shall have the power
and authority to promulgate rules and regulations which may be
necessary to carry out the purposes set forth in this chapter.
(b) Guidelines.--In order to facilitate the speedy
implementation of this chapter, the Attorney General shall have
the power and authority to promulgate, adopt and use guidelines
which shall be published in the Pennsylvania Bulletin. The
guidelines shall not be subject to review under section 205 of
the act of July 31, 1968 (P.L.769, No.240), referred to as the
Commonwealth Documents Law; sections 204(b) and 301(10) of the
act of October 15, 1980 (P.L.950, No.164), known as the
Commonwealth Attorneys Act; or the act of June 25, 1982
(P.L.633, No.181), known as the Regulatory Review Act. The
guidelines shall be effective for not more than two years from
the effective date of this chapter. After the expiration of the
two-year period, the guidelines shall be promulgated as
regulations.
CHAPTER 21
MISCELLANEOUS PROVISIONS
Section 2101. Effective date.
This act shall take effect in 60 days.
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