Pennsylvania Act 2004-225 — JUDICIAL CODE (42 PA.C.S.) - CERTAIN IMMUNITY FOR PERSONS WHO DONATE VEHICLES AND EQUIPMENT TO VOLUNTEER FIRE COMPANIES AND SENTENCES FOR CERTAIN DRUG OFFENSES COMMITTED WITH FIREARMS

Act text

JUDICIAL CODE (42 PA.C.S.) - CERTAIN IMMUNITY FOR PERSONS WHO DONATE
   VEHICLES AND EQUIPMENT TO VOLUNTEER FIRE COMPANIES AND SENTENCES FOR
              CERTAIN DRUG OFFENSES COMMITTED WITH FIREARMS
                 Act of Dec. 1, 2004, P.L. 1747, No. 225              Cl. 42
                             Session of 2004
                               No. 2004-225

     HB 447

                                  AN ACT

     Amending Title 42 (Judiciary and Judicial Procedure) of the
        Pennsylvania Consolidated Statutes, providing for certain
        immunity for persons who donate vehicles and equipment to
        volunteer fire companies and for sentences for certain drug
        offenses committed with firearms.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Title 42 of the Pennsylvania Consolidated
     Statutes is amended by adding sections to read:
      § 8338.1.  Liability for damages from donated vehicles or
                equipment to volunteer fire companies.
        (a)  General rule.--A person is not subject to civil
     liability arising from the nature or condition of vehicles or
     equipment which were reasonably believed to be in good
     condition,  donated in good faith to a volunteer fire company
     and for which all known defects were disclosed by the person to
     the volunteer fire company. Any person donating vehicles or
     equipment shall reveal all known defects to the donee. This
     section does not apply to an injury or death to any person that
     results from an act or omission of the donor constituting gross
     negligence, recklessness or intentional misconduct.
        (b)  Nonliability.--This section shall not be construed as
     establishing any liability.
        (c)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Donate."  To give or distribute without requiring anything
     of monetary value from the ultimate recipient. For purposes of
     this section, a volunteer fire company may donate to another
     volunteer fire company, notwithstanding that the donor has
     charged a processing fee to the donee, provided the ultimate
     recipient or user is not required to give anything of monetary
     value.
        "Person."  An individual, corporation, partnership,
     organization, association or government entity. In the case of a
     corporation, partnership, organization, association or
     governmental entity, the term also includes, but is not limited
     to, an officer, director, partner, deacon, trustee, council
     member or other elected or appointed individual responsible for
     the governance of such entity.
        "Volunteer ambulance service."  Any nonprofit chartered
     corporation, association or organization which is located in
     this Commonwealth and which is regularly engaged in the service
     of providing emergency medical care and transportation of
     patients.
        "Volunteer fire company."  Any nonprofit chartered
     corporation, association or organization which is located in
     this Commonwealth and which provides fire protection services
     and other voluntary emergency services within this Commonwealth.
     Voluntary emergency services provided by a volunteer fire
     company may include voluntary ambulance and voluntary rescue
     services.
        "Volunteer rescue service."  Any nonprofit chartered
     corporation, association or organization which is located in
     this Commonwealth and which provides rescue services in this
     Commonwealth.
      § 9712.1.  Sentences for certain drug offenses committed with
                firearms.
        (a)  Mandatory sentence.--Any person who is convicted of a
     violation of section 13(a)(30) of the act of April 14, 1972
     (P.L.233, No.64), known as The Controlled Substance, Drug,
     Device and Cosmetic Act, when at the time of the offense the
     person or the person's accomplice is in physical possession or
     control of a firearm, whether visible, concealed about the
     person or the person's accomplice or within the actor's or
     accomplice's reach or in close proximity to the controlled
     substance, shall likewise be sentenced to a minimum sentence of
     at least five years of total confinement.
        (b)  Limitation on aggregate sentences.--Where a defendant is
     subject to a mandatory minimum sentence under 18 Pa.C.S. §
     7508(a) (relating to drug trafficking sentencing and penalties)
     and is also subject to an additional penalty under subsection
     (a) and where the court elects to aggregate these penalties, the
     combined minimum sentence may not exceed the statutory maximum
     sentence of imprisonment allowable under The Controlled
     Substance, Drug, Device and Cosmetic Act.
        (c)  Proof at sentencing.--Provisions of this section shall
     not be an element of the crime, and notice thereof to the
     defendant shall not be required prior to conviction, but
     reasonable notice of the Commonwealth's intention to proceed
     under this section shall be provided after conviction and before
     sentencing. The applicability of this section shall be
     determined at sentencing. The court shall consider any evidence
     presented at trial and shall afford the Commonwealth and the
     defendant an opportunity to present any necessary additional
     evidence and shall determine, by a preponderance of the
     evidence, if this section is applicable.
        (d)  Authority of court in sentencing.--There shall be no
     authority in any court to impose on an offender to which this
     section is applicable any lesser sentence than provided for in
     subsection (a) or to place such offender on probation or to
     suspend sentence. Nothing in this section shall prevent the
     sentencing court from imposing a sentence greater than that
     provided in this section. Sentencing guidelines promulgated by
     the Pennsylvania Commission on Sentencing shall not supersede
     the mandatory sentences provided in this section.
        (e)  Appeal by Commonwealth.--If a sentencing court refuses
     to apply this section where applicable, the Commonwealth shall
     have the right to appellate review of the action of the
     sentencing court. The appellate court shall vacate the sentence
     and remand the case to the sentencing court for imposition of a
     sentence in accordance with this section if it finds that the
     sentence was imposed in violation of this section.
        (f)  Definition.--As used in this section, the term "firearm"
     shall have the same meaning as that given to it in section 9712
     (relating to sentences for offenses committed with firearms).
        Section 2.  The Pennsylvania Commission on Crime and
     Delinquency is directed to establish a public information
     campaign aimed at high drug trafficking areas informing the
     public of the five-year mandatory sentence established by 42
     Pa.C.S. § 9712.1. The commission shall seek all available
     funding, including Federal funding or funding available from
     nonprofit corporations, and shall seek to engage pro bono
     services from public relations and advertising firms and other
     entities.
        Section 3.  This act shall take effect in 60 days.

     APPROVED--The 1st day of December, A. D. 2004.

     EDWARD G. RENDELL