The opinion of the court was delivered by: WEBER
In this criminal forfeiture proceeding, third parties have asserted an interest in the subject property. The matter was tried to the court and we have received briefs.
On July 17, 1985, Ernest Rockwell pled guilty to one count of tax evasion and a charge of engaging in a continuing criminal enterprise involving illegal trafficking in narcotics, in violation of 21 U.S.C. § 848(a). Rockwell has subsequently testified as a government witness in several criminal prosecutions of his former narcotics associates.
As part of the plea agreement, Rockwell forfeited any interest in property procured with drug proceeds, specifically including all right, title and interest in Indian Lake Park.
Indian Lake Park is a mountain site consisting of approximately 16 acres, a mountain lake and various improvements. In 1974, Harry Jessup, a petitioner here, executed a sales agreement with the then-owners whereby Jessup would pay a total of $ 47,000 in several annual installments in order to acquire title to the property.
When the sales agreement was executed in 1974 there was only one structure on the site, a 1-story concrete block shell. After the execution of the sales agreement, but before transfer of the title, Jessup began making further improvements to the property.
According to Jessup, his purpose has always been to convert the site into a recreational park providing boating, fishing, picnicking and family amusements. To this end he began making improvements to the site, including the erection of various structures.
Jessup quickly ran into a snag. A local ordinance prohibited the erection of more than one structure on the site. However, the ordinance apparently did not apply to non-profit organizations, and so in 1976 Jessup created the Westmoreland Recreation Society, Inc., a non-profit corporation registered with the Commonwealth and having as its stated purpose the preservation and development of the natural resources of Indian Lake Park. Harry Jessup was and is president and principal shareholder in the Society.
The sales agreement was assigned to the Society, and ultimately, when the last installment payment was made by Jessup, the deed was transferred to the Society. Under the auspices of this non-profit corporation, Jessup continued to make improvements in the site, mostly in the erection of various structures, including offices, picnic pavilions, garages, a concession stand, and a modular chalet. All these structures were erected prior to Rockwell's initial involvement in August, 1983.
By Jessup's own admission, these various improvements were made with a minimal cash outlay. The structures were constructed almost entirely of used material, obtained by a demolition and salvage business which Jessup ran. The labor was mostly Jessup's, with assistance provided by unpaid volunteers. Improvements to the lounge were made by a third party at no cost to Jessup, and Jessup acquired full title to all those improvements when that party defaulted on the lease. Other expenses were paid out of money which Jessup claims was a gift from a third party for use on the park.
In August 1983, despite the various structures erected, the Society was no closer to opening as the envisioned amusement and recreational park. Neither the lounge nor the concessions were open, and many of the structures remained unfinished. There was no means of transporting persons from the park entrance to the various facilities, and no fence to restrict access to the site.
At that time Jessup was seeking investors who would bring money to the project. In August 1983 he was introduced to Ernest Rockwell who expressed interest in being the bankroll for the project.
Although the park as a whole required considerable work, it was agreed that the focal attraction was to be a large waterslide of the type now popular at many amusement parks. With Rockwell's money, work began in earnest. A slide was purchased and much of it delivered to the site. A topographical survey of the waterslide site was performed, and a bathhouse, deck, splashdown pool, walks, fencing and the support pillars for the slide were ...