2010 Pennsylvania Code
Title 75 - VEHICLES
Chapter 94 - Liquid Fuels and Fuel Use Tax Enforcement
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.