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COMMONWEALTH PENNSYLVANIA v. ONE 1979 LINCOLN (06/07/85)

filed: June 7, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
ONE 1979 LINCOLN, FOUR DOOR SEDAN. APPEAL OF DUANE K. KERSTETTER



No. 372 Harrisburg 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Mifflin County at No. 1181 of 1982.

COUNSEL

Lester H. Zimmerman, Jr., Mifflintown, for appellant.

William A. Helm, District Attorney, Lewistown, for Com., appellee.

Wickersham, Wieand and Hester, JJ. Wieand, J., files a dissenting opinion.

Author: Wickersham

[ 344 Pa. Super. Page 173]

The instant appeal is a result of a civil action brought by the Commonwealth for forfeiture of One 1979 Lincoln, four door sedan, owned by Duane K. Kerstetter, appellant herein.

On June 15, 1982, appellant's vehicle was seized by agents of the Bureau of Narcotics Investigations and Drug Control and a petition for forfeiture of same was filed by the Commonwealth seventy-two (72) days thereafter. Seizure of appellant's vehicle was made incident to his arrest. In its petition, the Commonwealth alleged as its basis for forfeiture that the seized vehicle was used to transport appellant to the residence of Thomas C. Pollock, Union Township, Mifflin County, where, in conspiracy with others, a clandestine laboratory had been established with intent to manufacture methamphetamine. Appellant used his 1979 Lincoln to deliver aspirins, vaseline, sandwiches, and coffee to his co-conspirators who manufactured the controlled substance throughout the night.

On September 2, 1982, the lower court issued an order directing appellant to show cause why said vehicle should not be forfeited. A hearing was held on October 25, 1982 and forfeiture was directed. Exceptions were dismissed on August 25, 1983 and appellant filed this timely appeal. We affirm.

Initially, appellant claims that the petition for forfeiture filed by the Commonwealth was not filed "forthwith" as required by 35 P.S. § 780-128(b)(1) and (c).*fn1 Section 780-128 provides, in pertinent part, as follows:

[ 344 Pa. Super. Page 174]

(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 administrative inspection warrant;

(c) In the event seizure without process occurs, as provided herein, proceedings for the issuance thereof shall be instituted forthwith. (Emphasis added)

Act of April 14, 1972, P.L. 233, No. 64, § 28, eff. June 14, 1972.

Appellant finds it "difficult" to accept a delay of seventy-two (72) days as complying with the statute's mandate that proceedings be instituted "forthwith." The Commonwealth looks to the interpretation of "forthwith" in Commonwealth v. One 1976 Oldsmobile Cutlass Supreme, 85 Pa. Commw. 433, 482 A.2d 686 (1984):

[ 344 Pa. Super. Page 175]

This Court has previously defined the term 'forthwith' as it was used in the Vehicle Code. 'We never have construed the "forthwith" requirement to fix an arbitrary time limit; rather, we have held that . . . compliance within a reasonable time is sufficient.' Department of Transportation, Bureau of Traffic Safety v. Passerella, 42 Pa. [Commw.] 352, 354, 401 A.2d 1, 2 (1979). '[A]bsent a showing of prejudice, the mere passage of time . . . is not sufficient justification to set aside the action . . . .' Department of Transportation, ...


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