Com. v. One (1) 1974 Chevrolet Box-Type Truck, White in Color, v. I.N. CGY354U118303, BOX-TYPE

• Decision Date: 18 May 1989
• Docket Number: BOX-TYPE
• Citation: 126 Pa.Cmwlth. 173,559 A.2d 76
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. ONE (1) 1974 CHEVROLETTRUCK, WHITE IN COLOR, V.I.N. CGY354U118303, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. $380.00 CASH, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. $1,820.00 CASH, Appellee. 13 C.D. 1989, 14 C.D. 1989, 94 C.D. 1989
• Court: Pennsylvania Commonwealth Court

Page 76

559 A.2d 76

126 Pa.Cmwlth. 173

COMMONWEALTH of Pennsylvania, Appellant, v. ONE (1) 1974 CHEVROLET BOX-TYPE TRUCK, WHITE IN COLOR, V.I.N. CGY354U118303, Appellee.

COMMONWEALTH of Pennsylvania, Appellant, v. $380.00 CASH, Appellee.

COMMONWEALTH of Pennsylvania, Appellant, v. $1,820.00 CASH, Appellee.

13 C.D. 1989, 14 C.D. 1989, 94 C.D. 1989

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 4, 1989.

Decided May 18, 1989.

Letty A. Kress, Deputy Atty. Gen., Ernest D. Preate, Jr., Atty. Gen., Harrisburg, for appellant.

Joseph R. D'Andrea, Scranton, for appellees.

Before BARRY and COLINS (P.), JJ., and KALISH, Senior Judge.

COLINS, Judge.

This case involves three consolidated appeals taken by the Commonwealth from orders entered by the Monroe County Court of Common Pleas (trial court). Each appeal concerns a petition for forfeiture which was denied before the Commonwealth had the opportunity to present evidence. We reverse.

Appeal No. 13 C.D.1989 involves the seizure by the Pennsylvania State Police of one (1) white 1974 Chevrolet Box-type Truck, vehicle Identification No. CGY354U118303, which was seized pursuant to Section 28(a)(4) of The Controlled Substance, Drug, Device, and Cosmetic Act (Act). ¹ On June 25, 1984, the State Police executed a search warrant on the defendant/property pursuant to a criminal investigation. As a result of that search, police located and seized from within the vehicle drug paraphernalia and various chemicals known to be used for manufacturing, compounding, processing, or producing methamphetamine, a Schedule II controlled substance. Based upon the property seized from the vehicle, it was determined that the vehicle was being used as, or used to transport, a clandestine portable methamphetamine laboratory. Accordingly, the Commonwealth instituted forfeiture proceedings against the vehicle.

The forfeiture petition was presented to the trial court on October 3, 1988, for a rule to show cause why the petition should not be granted. The trial court requested and received an amended petition on October 13, 1988, which indicated that no owner had been charged with a drug violation in connection with the search conducted on the vehicle. ² However, instead of issuing the rule, the trial court entered an order denying the Commonwealth's petition for forfeiture without providing the Commonwealth the opportunity to present evidence. The trial court's order stated that the Commonwealth failed to show by a preponderance of the evidence a reasonable nexus between the defendant and any crime.

In appeal No. 14 C.D.1989, the State Police seized $380.00 in currency pursuant to Section 28(a)(6)(i) of the Act ³ following an undercover drug purchase on November 3, 1987, and another foiled attempt on February 16, 1988, by an agent of the Pennsylvania Office of the Attorney General, Bureau of Narcotics Investigations and Drug Control. At the time the owner of the defendant/property was arrested, the State Police found three ounces of cocaine on his person in addition to the $380.00 now in dispute.

The Commonwealth subsequently filed a petition to forfeit the currency on July 5, 1988, which contained the standard notice to plead within 30 days or suffer default judgment. The petition was served on the owner of the defendant/property at the Monroe County Jail on July 27, 1988. When the owner failed to answer the Commonwealth's complaint, the Commonwealth moved for an order of forfeiture in default on September 16, 1988. The trial court not only denied the Commonwealth a default judgment, but also entered an order denying the Commonwealth's petition for forfeiture before the Commonwealth had the opportunity to place evidence on the record. The court held that the Commonwealth failed to show by a preponderance of the evidence the existence of a reasonable nexus between the money and the crime.

Appeal No. 94 C.D.1989, involves $1,820.00 in currency which was seized from the owner's purse following the execution of a search warrant of the owner's house. As a result of the search, the State Police recovered one-quarter pound of marijuana in addition to the currency which, incidentally, contained two $20.00 dollar notes which the State Police had previously marked in an undercover purchase of drugs from the owner.

The Commonwealth filed a petition for the forfeiture of the currency pursuant to Section 29 of the Act on September 25, 1988. At the close of the criminal case involved with this seizure, the Commonwealth asked, by motion, for a hearing to determine the issue of forfeiture of the currency. However, not only was this motion denied, the trial court entered an order denying the Commonwealth's petition for forfeiture without a hearing, stating that the Commonwealth failed to show by a preponderance of the evidence a reasonable nexus between the money and any crime.

Accordingly, the Commonwealth now argues that the trial court erred when it denied the petitions for forfeiture since, in each instance, the Commonwealth was not afforded an opportunity to prove its case before the trial court ruled on the petitions. We agree.

The procedure which must be followed in a forfeiture action is contained in Section 29 of the Act. Section 29(a) of the Act ⁴ lists the elements which a forfeiture petition must contain:

(1) A description of the property seized;

(2) A statement of the time and place where seized;

(3) The owner, if known;

(4) The person or persons in possession, if known;

(5) An allegation that the property is subject to forfeiture pursuant to Subsection (a) of Section 28 and averment of material facts upon which the forfeiture is based;

(6) A prayer for an order of forfeiture that the property be adjudged forfeited to the Commonwealth and condemned and be ordered sold according to law, unless cause be shown to the contrary.

Once the Commonwealth establishes the above elements, a hearing is held where the burden is upon the Commonwealth to establish by a preponderance of the evidence that the property in question was unlawfully used or possessed. Commonwealth v. One 1985 Cadillac Seville, 371 Pa.Superior Ct. 390, 538 A.2d 71 (1988). If the Commonwealth...