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COMMONWEALTH PENNSYLVANIA v. ONE 1973 CHEVROLET PICKUP/CAMPER TRUCK -- PENNSYLVANIA REGISTRATION NO. CH90431 (07/16/75)

decided: July 16, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
ONE 1973 CHEVROLET PICKUP/CAMPER TRUCK -- PENNSYLVANIA REGISTRATION NO. CH90431, MFG. SERIAL NO. CCX143B102367 IN POSSESSION OF DANIEL MCCLAIREN, REGISTERED OWNER. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLANT



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Commonwealth of Pennsylvania v. One 1973 Chevrolet Pickup/Camper Truck -- Pennsylvania Registered No. CH90431 Mfg. Serial No. CCX143B102367. In Possession of Daniel McClairen, Registered Owner, No. A-33 Docket Page 64, September Sessions, 1974.

COUNSEL

J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Israel Packel, Attorney General, for appellant.

James A. Cochrane, for appellee.

Judges Kramer, Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 20 Pa. Commw. Page 302]

This is an appeal taken by the Liquor Control Board (Board) from a decision of the Court of Common Pleas of Delaware County ordering that a 1973 Chevrolet Pickup/Camper Truck be returned to its registered owner, Daniel McClairen.

Reese J. Brown, Jr., a Board enforcement officer, testified at a hearing before the lower court that on March 10, 1974 he purchased a bottle of liquor from McClairen who was at the time seated behind the wheel of his vehicle parked in a gas station in Chester. Brown subsequently made a similar purchase from McClairen on June 9 who was then in the same vehicle at the same location. On June 16 Brown again observed McClairen at the same gas station and, after obtaining warrants, he placed McClairen under arrest and undertook a search of the vehicle. In it were found one gallon of liquor, 2.2 gallons of wine and 3.7 gallons of beer, all of which had been admittedly purchased by McClairen in Delaware and unlawfully transported by him into Pennsylvania. The vehicle and the alcoholic beverages contained therein were consequently seized by the Board agent.

On July 15, 1974 the Board filed a petition with the lower court asking forfeiture of the seized vehicle pursuant to Section 602 of the Liquor Code, Act of April 12, 1951, P.L. 90, 47 P.S. § 6-602. The petition alleged that McClairen had used the vehicle in violation of the Liquor Code and it requested, therefore, that the vehicle be forfeited to the Commonwealth "unless cause be shown to the contrary." At a hearing on September 13 the lower court heard Brown's testimony and took other evidence, including a report that McClairen had previously pleaded guilty to a similar Liquor Code violation in 1971. It then ordered the vehicle returned to McClairen, and the Board now appeals to this Court.

Section 602 of the Liquor Code, 47 P.S. § 6-602, describes the procedural requirements to be observed in

[ 20 Pa. Commw. Page 303]

    forfeiture proceedings and also provides as to the lower court's authority to order forfeiture of a vehicle that: ". . . if it appears that said vehicle, boat, vessel, container, animal or aircraft was unlawfully possessed or used, the court may, in its discretion, adjudge same forfeited and condemned as hereinafter provided." It is apparent, therefore, that the legislature intended to vest some discretionary power in the lower court to dispose of vehicles other than by mandatory forfeiture, even though the evidence might establish unlawful use. Commonwealth v. One 1959 Chevrolet Impala Coupe, 201 Pa. Superior Ct. 145, 191 A.2d 717 (1963). Judicial discretion, however, requires action in conformity with the law upon the facts and circumstances before the court after hearing and due consideration. Commonwealth v. One 1961 Buick Special Sedan, 204 Pa. Superior Ct. 293, 204 A.2d 288 (1964).

The lower court essentially gave two reasons for its decision not to order forfeiture. First, it found that forfeiture would preclude McClairen from earning a living by depriving him of his only transportation to and from his place of employment in Claymont, Delaware. The record, however, does not support such a conclusion. Although McClairen's counsel asserted that the vehicle in question was "his only means of making a livelihood," there is nevertheless simply no evidence in the record to negate the possibility that McClairen may have had access to another vehicle or that some other form of transportation might be available to him.

The second reason given by the lower court was that McClairen was in poor physical health because of having sustained a heart attack. We fail to see how that can be a relevant factor, at least not without some showing that ...


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