Commonwealth v. One 1927 Graham Truck

• Decision Date: 15 July 1949
• Citation: 165 Pa.Super. 1,67 A.2d 655
• Parties: Commonwealth, Appellant, v. One 1927 Graham Truck
• Court: Pennsylvania Superior Court

67 A.2d 655

165 Pa.Super. 1

Commonwealth, Appellant, v. One 1927 Graham Truck

Superior Court of Pennsylvania

July 15, 1949

Argued March 7, 1949.

Appeal, No. 31, Feb. T., 1949, from order of Court of Quarter Sessions of Luzerne County, June Sessions, 1948, No. 517, in case of Commonwealth, Pennsylvania Liquor Control Board v. One 1927 Graham Truck, in possession of George Gillis.

Proceeding upon petition by Commonwealth for forfeiture of motor vehicle used in illegal transportation of beer.

Order entered denying petition, opinion by Aponick, J. Commonwealth appealed.

Edmund P. Hannum, Special Deputy Attorney General, with him Horace A. Segelbaum, Deputy Attorney General and T. McKeen Chidsey, Attorney General, for appellant.

Leon F. Rokosz, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Arnold and Fine, JJ. (Ross, J absent).

OPINION

HIRT, J.

The 1927 Graham Truck, the subject of this proceeding, was seized by enforcement officers of the Liquor Control Board pursuant to § 201(f) of the Pennsylvania Liquor Control Act, as amended by the Act of June 16, 1937, P. L. 1762, 47 PS 744-201, which authorizes the seizure of any vehicle used in the unlawful sale of liquor, malt or brewed beverages. Alleging that the truck when seized "had been possessed or used or was intended for use" in violation of the Pennsylvania Liquor Control Act as modified by the amendment of 1937, supra, the Liquor Control Board petitioned the court for an order of condemnation and forfeiture of the vehicle. George Gillis was the registered owner of the truck and he was served with a copy of the petition. He appeared and testified at the hearing in this case. The lower court on consideration of all of the testimony found the evidence insufficient to support an order of forfeiture and dismissed the petition. The order will be reversed.

On Sunday, August 15, 1948, two enforcement officers of the Liquor Control Board went to the Hanover Athletic Association Park in Nanticoke where an amateur baseball game, sponsored by a number of citizens, was scheduled to be played. One of the officers testified, and there is no dispute as to these facts: At 2:30 p.m. Gillis drove his 1927 Graham truck, in question here, into the ball park. He immediately removed a Coca-Cola Cooler and four cases of beer from the truck. He took all of the cans of beer from the cartons and placed them in the cooler. Gillis then set up a counter from material which he removed from the truck, on which he displayed candy and cigars for sale. He had a separate iced tub container for soft drinks. The beer was legal beer in that it was tax paid and the transportation of it by Gillis to the ball park, in itself, was not unlawful. But Gillis did not have a license for the sale of beer. At 2:45 p.m. he sold a can of beer to one of the enforcement officers for 25 cents and ten minutes later made a similar sale to the other officer. He admits the sales to them but denies three prior sales of beer to other persons which were observed by the officers according to the testimony of one of them.

This is a proceeding under § 611 of the Act as amended, 47 PS 744-611. An appeal from the order of a court of quarter sessions to this Court, in such proceeding, is not prohibited by the Act. This appeal, therefore, is in the nature of a broad certiorari to determine whether the court below is chargeable with serious abuse of discretion or otherwise committed an error of law. Commonwealth v. Hildebrand, 139 Pa.Super. 304, 308, 11 A.2d 688; Martin's Grill, Inc., Liquor License Case, 149 Pa.Super. 185, 27 A.2d 293.

The proceeding is in rem and in accordance with subsection (d) (1), of § 611, the Commonwealth brought this action as plaintiff against the property itself as the defendant. It is provided in § 611(a) that no property rights shall exist in any vehicle used in the illegal transportation of liquor malt or brewed beverages and subsection (b) provides for the condemnation and forfeiture of a vehicle so used. This is not a criminal proceeding and we are not obliged to give a strict construction to the provisions of the Act relating to forfeiture. The Act itself in § 3(a), 47 PS § 744-3, provides: "This act shall be deemed an exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace and morals of the people of the Commonwealth . . .; and all of the provisions of this act shall be liberally construed for the accomplishment of this purpose". Proof by a fair preponderance of the evidence is all that is required to work a forfeiture of the vehicle unlawfully used in the transportation of liquor or malt beverages in violation of the Act. Commonwealth v. 3 Halves of Beer, 162 Pa.Super. 191, 56 A.2d 333. Compare Com. v. One 1946 Chrysler Sedan, 162 Pa.Super. 179, 56 A.2d 356, where we sustained an order of forfeiture for illegal transportation of liquor even though the automobile had not been...