Brown v. Commonwealth of Pennsylvania, 102 C.D. 2007.

• Decision Date: 08 January 2008
• Docket Number: No. 102 C.D. 2007.,102 C.D. 2007.
• Citation: 940 A.2d 610
• Parties: Janice K. BROWN, Appellant v. COMMONWEALTH OF PENNSYLVANIA.
• Court: Pennsylvania Commonwealth Court

940 A.2d 610

Janice K. BROWN, Appellant v. COMMONWEALTH OF PENNSYLVANIA.

No. 102 C.D. 2007.

Commonwealth Court of Pennsylvania.

Argued September 6, 2007.

Decided January 8, 2008.

Joseph R. Podraza, Jr., Philadelphia, for appellant.

Jennifer A. Buck, Deputy Attorney General, Harrisburg, for appellee.

BEFORE: COLINS, Judge^*, LEAVITT, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Judge LEAVITT.

Janice K. Brown appeals the order of the Court of Common Pleas of Chester County (trial court) denying her petition for expedited release of her home from future forfeiture proceedings. Also before the Court is a motion of the Commonwealth of Pennsylvania to quash the appeal for lack of jurisdiction. For the reasons that follow, we will vacate the order of the trial court.

Janice Brown (Mrs. Brown) and her husband, Dr. Richard A. Brown (collectively, the Browns), own as tenants by the entirety a split-level house located in Wayne, Pennsylvania. The value of the house exceeds $400,000. Until recently, Dr. Brown used a small office in the first level of the house to conduct his medical practice; the remainder of the house continues to serve as the Browns' home.

On December 11, 2001, Dr. Brown was arrested and charged with writing multiple prescriptions in violation of The Controlled Substance, Drug, Device and Cosmetic Act (The Controlled Substance Act).¹ On May 17, 2002, the Commonwealth initiated process for seizure of the Browns' home pursuant to Section 6801(b) of the Judicial Code, 42 Pa.C.S. § 6801(b), commonly known as the Forfeiture Act.² As a result, the Browns' home was placed under the trial court's jurisdiction on June 5, 2002, and it has remained there since.³

On May 30, 2005, Dr. Brown entered a plea of nolo contendere to a single count of dispensing a controlled substance from his home office not in accordance with generally accepted medical practices in violation of Section 13(a)(14) of The Controlled Substance Act, 35 P.S. § 780-113(a)(14). Dr. Brown was ordered to serve a sentence of five years probation and to pay a $100 fine.

On July 27, 2005, the Browns filed a motion for judgment on the pleadings seeking the release of the property from seizure.⁴ The Browns asserted that the Commonwealth had waited too long to file a forfeiture petition, thereby entitling the Browns to a judgment releasing their house from seizure and from any possible forfeiture. On August 9, 2005, the Commonwealth filed a petition for forfeiture and condemnation of the Browns' house. In response, the Browns filed preliminary objections seeking dismissal of the petition on various grounds, including the Commonwealth's delay in seeking forfeiture. The Commonwealth filed preliminary objections to the Browns' preliminary objections. The Commonwealth contended that its forfeiture petition was not a pleading within the meaning of the Pennsylvania Rules of Civil Procedure and that, in any case, a claim of prejudice is a factual matter that can never be raised by preliminary objection.

On December 9, 2005, the trial court overruled the Browns' preliminary objections and denied their motion for judgment on the pleadings. The trial court agreed with the Commonwealth that a petition for forfeiture is not "a pleading" governed by the Pennsylvania Rules of Civil Procedure⁵ but, rather, is governed by petition practice. Accordingly, the trial court held that the Browns had no ability to file preliminary objections and, thus, had to answer the petition. The trial court denied the Browns' motion for judgment on the pleadings because the pleadings had not yet closed.⁶

On July 20, 2006, Mrs. Brown filed a petition seeking expedited release of her home from future forfeiture proceedings.⁷ Invoking Section 6802(k) of the Forfeiture Act, 42 Pa.C.S. § 6802(k), Mrs. Brown asserted that she was an "innocent owner" because she lacked knowledge of the illegal use of the Browns' home and did not consent to such use. As an innocent owner, Mrs. Brown asserted that she had the right to have her home released from the pending forfeiture proceeding. Mrs. Brown also requested an expedited hearing on her petition, which was granted.

At the hearing, both sides presented evidence. Mrs. Brown testified, stating that she had no knowledge of Dr. Brown's illegal activities until he was arrested and that she had never consented to his use of their house to commit illegal acts, The Commonwealth presented rebuttal evidence, described by the trial court as "circumstantial," which rebutted Mrs. Brown's claim that she did not know what was happening.⁸ In the end, the trial court concluded that

I simply cannot accept as credible Mrs. Brown's testimony that she had no knowledge of her husband's medical practice and how he conducted it.

Trial Ct. Op. at 27. The trial court also concluded that Mrs. Brown had consented to Dr. Brown's illegal conduct because the evidence shows that at best, Mrs. Brown ignored what was going on, and at worst she accepted Dr. Brown's conduct, participated in its fruits, and did nothing to change it, even after he was arrested and she was confronted with the reality of his situation.

Trial Ct. Op. at 28-29. The trial court denied Mrs. Brown's petition for expedited release of her home from future forfeiture proceedings.

On January 11, 2007, Mrs. Brown filed the present appeal. Before this Court, Mrs. Brown contends that the evidence does not support the trial court's legal conclusion, i.e., that Mrs. Brown knew of and at least tacitly consented to her husband's unlawful use of their home. On August 16, 2007, the Commonwealth filed a motion to quash Mrs. Brown's appeal.

The Commonwealth offers two theories in opposition to Mrs. Brown's appeal. First, it contends that the trial court erred in entertaining Mrs. Brown's "petition for release of property from future forfeiture proceedings" because there is no such remedy in the Forfeiture Act and, therefore, the trial court lacked subject matter jurisdiction. Alternatively, it contends that the trial court's denial of Mrs. Brown's petition was merely an interlocutory order entered in the course of an ongoing forfeiture proceeding and until a final order terminates that proceeding there is nothing for this Court to review. In response, Mrs. Brown contends that the trial court's order was a final order because her petition for a pre-forfeiture release is a proceeding separate from the forfeiture proceeding itself. In the alternative, Mrs. Brown argues that even if the trial court's order should be found interlocutory, it is appealable as of right or as a collateral order.

We turn, first, to a review of the Forfeiture Act. Where property is used to facilitate any violation of The Controlled Substance Act, that property can be forfeited to the Commonwealth. 42 Pa.C.S. § 6801(a)(6)(i)(C).⁹ However, there are limits to this general rule. Property used to facilitate an illegal act cannot be forfeited where the illegal act was done without the knowledge or consent of the owner. 42 Pa.C.S. § 6801(a)(6)(ii).¹⁰ Further, a valid lien on real property cannot "be subject to forfeiture." 42 Pa.C.S. § 6801(a)(6)(iii).¹¹

The Forfeiture Act establishes a very specific procedure that must be followed in order for seized property to be forfeited to the Commonwealth. Pertinent here are two aspects of that procedure. First, the forfeiture petition must be personally served on the owner of the property. 42 Pa.C.S. § 6802(b) ("A copy of the petition . . . shall be served personally or by certified mail on the owner or upon the person or persons in possession at the time of the seizure."). Second, there must be a hearing on the merits of the forfeiture if the owner asserts a claim that the property cannot be forfeited. 42 Pa.C.S. §§ 6802(i) ("Upon the filing of a claim for the property setting forth a right of possession, the case shall be deemed at issue and a time shall be fixed for the hearing.").¹² By contrast, there is no requirement that a lienholder receive advance written notice of the forfeiture and the opportunity to participate in the forfeiture proceeding.¹³

At the forfeiture hearing, the Commonwealth bears the initial burden of proving that forfeiture is appropriate because the property was "used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act." 42 Pa.C.S. § 6801(a)(6)(i)(c). To meet its burden, the Commonwealth must establish, by a preponderance of the evidence, that a substantial nexus exists between the property sought to be forfeited and the prohibited activity.¹⁴ Id. If the Commonwealth meets this initial burden, the owner may then present a defense.¹⁵

Section 6802(j) of the Forfeiture Act sets forth the elements of the defense to be presented by the owner challenging the forfeiture. It states:

(j) Owner's burden of proof.—At the time of the hearing, if the Commonwealth produces evidence that the property in question was unlawfully used, possessed or otherwise subject to forfeiture under section 6801(a) or 6801.1(a), the burden shall be upon the claimant to show:

(1) That the claimant is the owner of the property or the holder of a chattel mortgage or contract of conditional sale thereon.

(2) That the claimant lawfully acquired the property.

(3) That it was not unlawfully used or possessed by him. In the event that it shall appear that the property was unlawfully used or possessed by a person other than the claimant, then the claimant shall show that the unlawful use or possession was without his knowledge or consent. Such absence of knowledge or consent must be reasonable under the circumstances presented.

42 Pa.C.S. § 6802(j) (emphasis added).¹⁶ Here, the Commonwealth asserts that Dr. Brown, not Mrs. Brown, used the house unlawfully. Assuming the Commonwealth "does not challenge her lawful ownership interest, then Mrs. Brown must prove in the forfeiture proceeding that she did not know or consent to Dr. Brown's unlawful acts and such lack of...