Appeal from the Order of the Court of Common Pleas of Adams County in case of Commonwealth of Pennsylvania v. Liquor (as per attached Exhibit A) Seized in: Route 15, Adams County; In Poss: Dorothy Straley, Miscellaneous Action No. MC-20-78, Sec. 13.
J. Leonard Langan, Assistant Attorney General, and Kenneth W. Makowski, Acting Chief Counsel, for appellant.
D. Larrimore Allewalt, Jr., for appellee.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
[ 46 Pa. Commw. Page 491]
The Pennsylvania Liquor Control Board (Board) filed a petition to forfeit two cases of liquor pursuant to Sections 601-603 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 6-601 to 603. The liquor was purchased in Maryland and transported into Pennsylvania in violation of Section 491(2) of the Liquor Code, 47 P.S. § 4-491(2).*fn1 It was seized in Pennsylvania by a Board enforcement officer who had observed these acts. Following a hearing on the Board's petition, the Court of Common Pleas of Adams County ordered the liquor to be returned to the owner upon payment of Pennsylvania taxes or, upon failure to pay the taxes, to be forfeited. The Board's appeal to this Court followed.
[ 46 Pa. Commw. Page 492]
The Board argues that the court below had no discretion to order the return of the liquor to the owner in light of (1) its uncontradicted competent evidence which established that the liquor was unlawfully possessed under Section 491(2) of the Liquor Code and (2) the Pennsylvania Superior Court's decision in Commonwealth v. Bianco DiVerona Wine, 250 Pa. Superior Ct. 544, 378 A.2d 1282 (1977), wherein it was held that the lower court had no discretion to order liquor returned to an owner in a forfeiture proceeding where it was found that said liquor had been unlawfully possessed under Section 491(2) of the Liquor Code.
It appears the court below allowed the return of the liquor, at least in part, because Section 491(2) of the Liquor Code had been declared unconstitutional by the Court of Common Pleas of Adams County*fn2 and therefore Section 491(2) was unenforceable and liquor possessed in violation of Section 491(2) could no longer be deemed unlawfully possessed.*fn3
It is generally true that a statute declared unconstitutional is as inoperative as if it had never existed. See G.H. McShane Co. v. Travelers Indemnity Co., Pa. Superior Ct. , , 396 A.2d 654, 657 (1978). It is also true, however, that the constitutionally offensive provision will be severed from valid provisions if there is a legislative intent to sever and if the statute is capable of being severed in fact. Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 196 A.2d 664 (1964); School District of Philadelphia v. W.T. Grant Corp., 19 Pa. Commonwealth Ct. 402, 339 A.2d 628 (1975).
[ 46 Pa. Commw. Page 493]
To determine whether the statute is capable of being severed, the valid provisions must not be so inseparably connected with and dependent upon the invalid provisions that it seems the legislature would not have enacted the valid provisions without the invalid, and the valid provisions must be capable of meaningful application without the excised provision. 1 Pa. C.S. § 1925; Saulsbury v. Bethlehem Steel Co., supra.*fn4
The legislative intent, as found specifically in Section 104(b) of the Liquor Code, 47 P.S. § 1-104(b), and generally in 1 Pa. C.S. § 1925, clearly is to sever ...