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MATTER JAMES PAUL KULBITSKY (01/12/88)

decided: January 12, 1988.

IN THE MATTER OF: JAMES PAUL KULBITSKY, A/K/A KUBI KULBITSKY. THERESA KULBITSKY, APPELLANT


Appeal from the Order of the Court of Common Pleas of Schuylkill County in the case of In the matter of: James Paul Kulbitsky, a/k/a Kubi Kulbitsky, No. Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 112 Pa. Commw. Page 478]

Theresa Ann Kulbitsky appeals an order of Judge Wilbur H. Rubright of the Court of Common Pleas of Schuylkill County denying Ms. Kulbitsky's motion for return of property and granting the request of the Commonwealth of Pennsylvania for forfeiture.

The issues raised by the appellant are: (1) whether, with respect to a motorist killed in a traffic accident, the common pleas court should have applied the statutory "dead man's rule" of evidence in civil cases to bar testimony in a forfeiture proceeding by state police officers and technicians regarding drugs and money found in the motorist's jacket recovered from the scene of the accident; (2) if the evidence was admissible, whether it was sufficient to justify an order of forfeiture; and (3) whether, where the Commonwealth did not file a request for forfeiture until some five months after the property was seized (and after Ms. Kulbitsky filed her motion for return of property), the Commonwealth failed to comply with the statutory requirement that proceedings for forfeiture be instituted "forthwith" after a seizure without process, and so violated Ms. Kulbitsky's right to due process of law.

The testimony at the hearing before Judge Rubright indicated that on April 29, 1986, James Paul Kulbitsky was killed when the pickup truck he was driving ran into the rear of a tractor trailer. A state trooper investigating the accident found no identification on the decedent; however, the trooper found that a jacket recovered from the pickup truck contained a large amount of money in an inside pocket. The trooper secured the

[ 112 Pa. Commw. Page 479]

    jacket in his cruiser and examined it when he returned to his barracks.

The money in the jacket totaled nearly $12,000. Another inside pocket of the jacket contained a leather pouch, which in turn contained a plastic bag, measuring approximately five inches by ten inches, with a small amount of white powder at the bottom and residue on the sides. The pouch also contained a small amount of suspected hashish wrapped in foil and a small amount of suspected marijuana. Later chemical analysis indicated that the white powder was methamphetamine, and the other substances were, in fact, hashish and marijuana. The state police also recovered approximately $260 from the decedent's pants.

A trooper qualified as an expert in the drug trade testified at the hearing that the plastic bag containing the methamphetamine probably had been full at one time, based on the presence of residue throughout the inside, and that it would hold as much as a pound of the drug, which would have sold for approximately $11,000. Counsel stipulated that the decedent had two previous convictions for possession of controlled substances with intent to deliver, including those substances involved in this case.

Theresa Kulbitsky, administratrix of the estate of the decedent, testified that she was married to him at the time of his death, although they had been separated for four years. She said that the decedent gave her $200 to $300 per month throughout the period of their separation for the support of their children. Further, she said that he owned two businesses, although she did not know the amount of income generated by them. She had seen the decedent carry thousands of dollars on come occasions, and she had seen him in possession of hashish, although usually not in large quantities.

[ 112 Pa. Commw. Page 480]

Ms. Kulbitsky filed a motion pursuant to Pa. R. Crim. P. 324 on September 3, 1986, for the return of $12,169 held by the state police. The District Attorney's office of Schuylkill County filed an answer to that motion on September 24, 1986. The answer raised as new matter a request that the money be forfeited to the Commonwealth pursuant to section 28 of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-128. After a hearing on October 14, 1986, Judge Rubright issued the order described above, and Ms. Kulbitsky appealed.

1. Dead Man's Rule

The so-called "dead man's rule" is codified at 42 Pa. C.S. § 5930. It provides in pertinent part as follows:

Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead, . . . and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased . . . party, shall be a competent witness to any matter occurring before the death of said party . . . .

Appellant contends that the "adverse interest" branch of this rule should have been applied by the trial court to bar the testimony of the police officers. Ms. Kulbitsky argues first that the dead man's rule applies in forfeiture proceedings, contrary to the ruling of the trial court on her preliminary objection raising this issue, because such proceedings remain civil in form, and the

[ 112 Pa. Commw. Page 481]

    civil rules of evidence (including the dead man's rule) apply to them, despite the fact that the courts have recognized that such proceedings are quasi-criminal in character. The Commonwealth responds that the quasi-criminal nature and effect of forfeiture proceedings renders the rule inapplicable.

The characterization of forfeiture proceedings in Pennsylvania remains as set forth in Commonwealth v. Landy, 240 Pa. Superior Ct. 458, 362 A.2d 999 (1976), a decision affirming the denial of a motion pursuant to Pa. R. Crim. P. 324 by a person arrested and charged with various drug offenses for return of money confiscated at the time of his arrest after the indictments against him were dismissed:

In light of both the history of forfeiture actions and recent Supreme Court cases involving forfeiture, we conclude that the forfeiture proceedings under § 780-128 of The Controlled Substance, Drug, Device and Cosmetic Act are civil in form, but quasi-criminal in character. The clear object of § 780-128 is to impose a penalty only upon those who are significantly involved in criminal enterprises in violation of the Act. See § 780-128(a)(1), (2), (3), (4), (5). See also United States v. United States Coin and Currency, [401 U.S. 715 (1971)]; One 1958 Plymouth Sedan v. Pennsylvania, [380 U.S. 693 (1965)]. We do not, on the other hand, classify these proceedings as 'criminal proceedings' so as to require the full panoply of rights due a criminal defendant. On ...


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