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SPERO T. LAPPAS v. SWANSON BROWN (06/22/84)

submitted: June 22, 1984.

SPERO T. LAPPAS, APPELLANT,
v.
SWANSON BROWN



No. 00185 Harrisburg 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Dauphin County at No. 2916 N. 1982.

COUNSEL

Spero T. Lappas, Harrisburg, appellant, in propria persona.

Swanson Brown, appellee, in propria persona.

Del Sole, Popovich and Roberts, JJ. Del Sole, J., files a concurring opinion.

Author: Popovich

[ 335 Pa. Super. Page 111]

This is an appeal by Spero T. Lappas, appellant, from an order of the Court of Common Pleas of Dauphin County which granted a stay in execution and ordered forfeiture of a fund in the amount of $1,450.00. This appeal arises out of the following factual context.

[ 335 Pa. Super. Page 112]

Swanson Brown, appellee, was arrested on February 13, 1982, and charged with possession of marijuana and possession with intent to deliver. A search of his residence pursuant to a search warrant resulted in seizure of quantities of marijuana and cash in the amount of $1,450.00. The money was held by the Dauphin County District Attorney and the Dauphin County Detective's Office pending resolution of the criminal charges against Brown. On May 11, 1982, Brown entered a plea of guilty to possession with intent to deliver and was sentenced on January 26, 1983, to pay a fine of $1,000 and to imprisonment for a period of one to two years. On September 8, 1982, appellant confessed judgment on a note against Brown in the amount of $1,138.50, seeking satisfaction of fees for legal services rendered.*fn1 On January 25, 1983, he filed a praecipe for writs of execution upon Brown; Richard Lewis, the District Attorney; Kenneth Barbush, the County Detective; John Goshert,*fn2 the seizing officer; and the Harrisburg Police Department.

[ 335 Pa. Super. Page 113]

On February 7, 1983, one year after Brown's arrest and 12 days after sentencing, the Commonwealth filed a Petition in Forfeiture captioned Commonwealth v. 1450 Dollars U.S. Currency, alleging that the funds were "derivative contraband" and thus subject to forfeiture, and the garnishees immediately filed an application for Stay of Execution. A Rule was issued upon appellant to show cause why the execution should not be stayed "pending the outcome of the appeal period in Commonwealth v. Swanson Brown . . . and/or Commonwealth's Petition in Forfeiture in that case, which ever shall last occur." Appellant answered the Rule, and a hearing was conducted on April 6, 1983, on the forfeiture petition. The lower court held that the fund was not subject to garnishment by appellant and granted the stay. The court ordered the fund forfeited. This appeal followed, and we affirm.

Appellant raises two issues for our review.*fn3 First, he claims that the Petition in Forfeiture filed by the Commonwealth was not filed "forthwith" as is required under 35 Pa.C.S.A. 780-128(b), (c).*fn4 35 Pa.C.S.A. 780-128 reads, in pertinent part, as follows:

(b) Property subject to forfeiture under this act may be seized by the law enforcement authority upon process issued by any court of common pleas having jurisdiction over the property. Seizure without process may be made if:

(1) The seizure is incident to an arrest or a search under a search warrant or inspection under an ...


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