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COMMONWEALTH v. ONE 1961 BUICK SPECIAL SEDAN (PALANGIO) (11/12/64)

decided: November 12, 1964.

COMMONWEALTH, APPELLANT,
v.
ONE 1961 BUICK SPECIAL SEDAN (PALANGIO)



Appeal from order of Court of Quarter Sessions of Westmoreland County, April T., 1964, No. 47, in case of Commonwealth of Pennsylvania v. One 1961 Buick Special Sedan (Tony Joseph Palangio).

COUNSEL

Thomas J. Shannon, Assistant Attorney General, with him Floyd R. Warren, Special Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellant.

Myron W. Lamproplos, and Cassidy & Lamproplos, for appellee, submitted a brief.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Ervin, J. Watkins and Flood, JJ., would affirm on the opinion of the court below.

Author: Ervin

[ 204 Pa. Super. Page 294]

This is an appeal by the Pennsylvania Liquor Control Board from an order of the court below denying the board's petition for the forfeiture of a 1961 Buick Special 4-door sedan.

The owner of the automobile testified as follows: "A fellow approached me in front of the Penn Albert Hotel and asked me if I wanted to make $25.00. I said yes. He said, 'Lend me your car. I'll put 25 gallons of moonshine in and you deliver it to Eat and Park and you'll get $25.00.' He took the car and he come back with it, and he said the car was ready to go. I took it to Eat and Park and about two minutes later this Trooper pulled up."

[ 204 Pa. Super. Page 295]

It was stipulated that the owner had been gainfully employed for the past nine years and had no previous criminal record.

The only question involved in this appeal is whether the court below abused its discretion in refusing to forfeit the automobile. We have recently reviewed this question in the case of Com. v. One 1959 Chevrolet Impala Coupe (Thomas), 201 Pa. Superior Ct. 145, 191 A.2d 717.

Judicial discretion is governed by legal principles applicable to the situation. If in reaching a conclusion the law is departed from or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error: Commonwealth ex rel. Truscott v. Yiddisher Kultur Farband, 382 Pa. 553, 565, 116 A.2d 555.

Judicial discretion requires action in conformity with law upon the facts and circumstances before the court after hearing and due consideration: Grand Jury Investigation of Western State Penitentiary, 173 Pa. Superior Ct. 197, 201, 96 A.2d 189. See also: Dauphin County Grand Jury Investigation Proceedings (No. 3), 332 Pa. 358, 364, 365, 2 A.2d 809; Philadelphia County Grand Jury Investigation Case, 347 Pa. 316, 326, 32 A.2d 199, 204.

The court below in the present case refused to forfeit the car because the defendant had paid a fine of $250.00 on his plea of guilty to the criminal charge and for the further reason that ...


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