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Commonwealth of Pennsylvania v. All That Certain Lot Or Parcel of Land Located At 605 University

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


November 21, 2012

COMMONWEALTH OF PENNSYLVANIA
v.
ALL THAT CERTAIN LOT OR PARCEL OF LAND LOCATED AT 605 UNIVERSITY DRIVE, STATE COLLEGE, CENTRE COUNTY, PENNSYLVANIA AND DESCRIBED WITH PARTICULARITY AT DEED BOOK 1419 PAGE 0976 IN THE OFFICE OF THE RECORDER OF DEEDS, TAX PARCEL NUMBER 36-014-123A APPEAL OF: GREGORY PALAZZARI

The opinion of the court was delivered by: Judge Pellegrini

Argued: March 13, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION ANNOUNCING THE JUDGMENT OF THE COURT BY PRESIDENT JUDGE PELLEGRINI

Gregory Palazzari (Palazzari) appeals an order of the Court of Common Pleas of Centre County (trial court) which granted the Office of Attorney General's (Commonwealth) motion for summary judgment in a proceeding under what is commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§6801-6802. Because granting a motion for summary judgment in a forfeiture action is at variance with the procedures set forth in the Forfeiture Act, we reverse the trial court.

On August 21, 2009, following a joint investigation by the Commonwealth and the Centre County Drug Task Force, Palazzari was arrested for cocaine trafficking and charged with multiple offenses under the Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance Act).*fn1 The Commonwealth then petitioned the trial court to forfeit the property located at 605 University Drive, State College, Pennsylvania (property) on which a service station known as Greg's Sunoco is located. In its forfeiture petition, the Commonwealth alleged that Palazzari used the property for the sale and storage of cocaine and as a place to meet his cocaine supplier.

Palazzari filed an answer to the Commonwealth's forfeiture petition in which he admitted that he was the owner of the property "on paper," but stated that "for all intent[s] and purposes the owner of the property would be Mr. Palazzari's mother," Santina Palazzari. (Answer to Petition for Forfeiture and Condemnation at 1). Palazzari also denied that the property was used or intended to be used for drug trafficking. Palazzari ultimately pled guilty to multiple drug charges and was sentenced to a term of incarceration.

Following discovery, the Commonwealth filed a motion for summary judgment alleging that there was no genuine issue as to any fact material to the determination of the forfeiture proceeding. In support of its motion, the Commonwealth attached numerous documents identifying Palazzari as the owner of the property.*fn2 In his answer to the Commonwealth's motion, Palazzari argued that he had produced documents demonstrating that his mother, Santina Palazzari, was the de facto owner and operator of Greg's Sunoco. He also argued that forfeiture of the property was excessive considering the gravity of the underlying offenses and, therefore, was unconstitutional. After hearing oral argument, the trial court granted the Commonwealth's motion for summary judgment and ordered the property forfeited to the Commonwealth. In its Opinion and Order, the trial court explained that Pennsylvania courts have "constantly applied the Rules of Civil Procedure to forfeiture actions," and, citing Commonwealth v. 6969 Forest Avenue, 713 A.2d 701 (Pa. Cmwlth. 1998), noted that summary judgment specifically has been "approved as a method of resolving a forfeiture matter." (Trial Court Opinion and Order at 5-6). This appeal by Palazzari followed.*fn3

On appeal, Palazzari, relying on this Court's holding in Brown v. Commonwealth, 940 A.2d 610 (Pa. Cmwlth. 2008), argues that the Pennsylvania Rules of Civil Procedure do not apply to proceedings under the Forfeiture Act. He contends that the Forfeiture Act mandates a statutory procedure that must be followed, which includes the right of a hearing. As a result, he argues that the trial court's grant of summary judgment*fn4 constituted an error of law.

Section 6802 of the Forfeiture Act, 42 Pa. C.S. §6802, sets forth a complete procedure regarding forfeiture, including what is in the forfeiture petition, the prayer for relief, notice, what has to be in the notice, who has to sign the notice, substitute notice, preservation of the property, "temporary restraining order," allowable evidence, "fixing of a hearing" and burdens of proof.*fn5 Regarding notice and hearing, we explained in Brown:

The Forfeiture Act establishes a very specific procedure that must be followed in order for seized property to be forfeited to the Commonwealth. Pertinent here are two aspects of that procedure. First, the forfeiture petition must be personally served on the owner of the property. 42 Pa. C.S. §6802(b) ("A copy of the petition...shall be served personally or by certified mail on the owner or upon the person or persons in possession at the time of the seizure.") Second, there must be a hearing on the merits of the forfeiture if the owner asserts a claim that the property cannot be forfeited. 42 Pa. C.S. §6802(i). ("Upon the filing of a claim for the property setting forth a right of possession, the case shall be deemed at issue and a time shall be fixed for a hearing.")

Brown, 940 A.2d at 613 (emphasis added) (footnote omitted). Not only is a hearing required, under Article I, Section 6 of the Pennsylvania Constitution,*fn6 a property owner is entitled to a jury trial in a forfeiture action to decide whether the property seized is contraband. Commonwealth v. One 1984 Z-28 Camaro Coupe, 530 Pa. 523, 610 A.2d 36 (1992); Commonwealth v. $3961.00 Cash, 1 A.3d 999 (Pa. Cmwlth. 2010).

Forfeiture proceedings, while nominally civil in nature, involve constitutional rights normally only involved in criminal proceedings. A forfeiture effected pursuant to the Forfeiture Act is a fine and, thus, subject to review under the Excessive Fines Clause. Commonwealth v. Real Property and Improvements Commonly Known As 5444 Spruce Street, Philadelphia, 574 Pa. 423, 832 A.2d 396 (2003).

In One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), the United States Supreme Court held Fourth Amendment protections applicable to forfeiture proceedings. In so doing, the Court rejected the argument that forfeiture proceedings are solely civil in nature. Relying on Boyd v. United States, 116 U.S. 616, 633-634 (1886), the Court stated, "We are also clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal." One 1958 Plymouth Sedan, 380 U.S. at 697.

See also United States of America v. 1988 BMW 750IL, 716 F.Supp. 171 (E.D. Pa.), aff'd, 891 F.2d 281 (3rd Cir. 1989).

In United States v. United States Coin and Currency, 401 U.S. 715 (1971), the United States Supreme Court held the Fifth Amendment applicable to forfeiture proceedings. The Court reiterated that forfeiture proceedings, although civil in form, are quasi-criminal in nature:

From the relevant constitutional standpoint there is no difference between a man who 'forfeits' $8,674 because he has used the money in illegal gambling activities and a man who pays a 'criminal fine' of $8,674 as a result of the same course of conduct. In both instances, money liability is predicated upon a finding of the owner's wrongful conduct; in both cases, the Fifth Amendment applies with equal force.

Id. at 718. See also U.S. v. One Single Family Residence Located at 6960 Miraflores Ave. 995 F.2d 1558, 1564-65 (11th Cir. 1993).

Given the quasi-criminal nature of the forfeiture proceeding, Pennsylvania courts have often stated that notice and opportunity to be heard as provided for in the Forfeiture Act guard against those proceedings from "amount[ing] to little more than state-sanctioned theft." Commonwealth v. Younge, 667 A.2d 739, 747 (Pa. Super. 1995). See also Commonwealth v. Mosley, 549 Pa. 627, 702 A.2d 857 (1997); Commonwealth v. $1,150.00 Cash, 909 A.2d 12 (Pa. Cmwlth. 2006).*fn7 Because it imposes a fine attendant to a criminal action,

forfeitures are not favored under the laws of the Commonwealth and statutes authorizing forfeiture are strictly construed against the Commonwealth. Commonwealth v. Smith, 562 Pa. 609, 757 A.2d 354 (2000); Commonwealth v. 502-504 Gordon Street in Ninth Ward of City of Allentown, County of Lehigh, 607 A.2d 839 (Pa. Cmwlth. 1992), affirmed per curiam, 535 Pa. 515, 636 A.2d 626 (1994). By requiring a hearing in 42 Pa. C.S. §6802(i), the General Assembly intended for the Commonwealth to present evidence in open court to make out its case before property could be taken from an individual and forfeited to the state.

As to the argument that the statutorily required hearing in open court is excused because property can be forfeited on a summary judgment motion made under the Pennsylvania Rules of Civil Procedure, those Rules simply do not apply to forfeitures because the General Assembly provided the complete procedure to be followed that preempts the area. Moreover, simply by their own terms, the Rules do not apply to forfeiture proceedings. Pa. R.C.P. No. 1001 provides:

(a) As used in this chapter (entitled "Civil Actions") ..., "action" means a civil action brought in or appealed to any court which is subject to these rules.

(b) There shall be a "civil action" in which shall be brought all claims for relief heretofore asserted in:

(1) the action of assumpsit,

(2) the action of trespass, and

(3) the action in equity.

A motion for summary judgment is contained in the "Civil Action" chapter and is only available in a "civil" action, i.e., one in assumpsit, trespass or equity. Because forfeiture is begun by a petition, not a civil action, the Rules of Civil Procedure do not apply. To the extent that any previous cases have applied the Rules of Civil Procedure to forfeiture actions, those cases are overruled.*fn8

Also, the "petition practice" rules contained in Pa. R.C.P. Nos. 206.1 through 206.7 do not apply. First, they are not envisioned to handle a proceeding that could result in a jury trial. Moreover, Rule 206.1(a) provides, in relevant part:

(a) As used in this chapter, "petition" means

(1) an application to open a default judgment or a judgment of non pros, and (2) any other application which is designated by local rule, numbered Local Rule 206.1(a), to be governed by Rule 206.1 et seq.

A forfeiture proceeding does not fall under subsection (1) and, even if it could, the Court of Common Pleas of Centre County has not designated any other type of proceeding to be covered by petition practice.

Because a forfeiture proceeding is a quasi-criminal punitive proceeding, the General Assembly mandated a hearing requiring the Commonwealth to present its evidence in open court, much like it has to do in a criminal proceeding where similar constitutional principles are implicated and not do it just on the papers.

Accordingly, because the Forfeiture Act mandates that a hearing be held before property is forfeited, and the Rules of Civil Procedure are inapplicable to forfeiture actions, we reverse the trial court's order and remand this matter to the trial court to conduct a hearing as required by §6802(i) of the Forfeiture Act.

DAN PELLEGRINI, President Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania v. All That Certain Lot Or Parcel Of Land Located At 605 University Drive, State College, Centre County, Pennsylvania And Described With Particularity At Deed Book 1419 Page 0976 In The Office Of The Recorder Of Deeds, Tax Parcel Number 36-014-123A Appeal of: Gregory Palazzari

No. 789 C.D. 2011 :

ORDER

PER CURIAM

AND NOW, this 21st day of November, 2012, the order of the Court of Common Pleas of Centre County dated April 15, 2011, at No. CP-14-MD-1134- 2009, is reversed. This matter is remanded to the trial court to conduct a hearing.

Jurisdiction relinquished.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania v. All That Certain Lot Or Parcel Of Land Located At 605 University Drive, State College, Centre County, Pennsylvania And Described With Particularity At Deed Book 1419 Page 0976 In The Office Of The Recorder Of Deeds, Tax Parcel Number 36-014-123A Appeal of: Gregory Palazzari

No. 789 C.D. 2011

Argued: March 13, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge DISSENTING OPINION

BY JUDGE McGINLEY FILED: November 21, 2012

I dissent to the Plurality's conclusion that the Rules of Civil Procedure, including Summary Judgment, are not available in a civil forfeiture proceeding under the Forfeiture Act, 42 Pa. C.S. §§6801-6802. I object to the Plurality's decision to overrule two decades of case law*fn1 without fully considering the implications of its ruling.*fn2

First, I do not agree that the language of the statute mandates a hearing even when there is no disputed issue of material fact. Although the Forfeiture Act mandates that a party receive an opportunity to be heard the legislature did not intend to require an evidentiary hearing where the facts are undisputed and the only issue is one of law. In such a situation, conducting a hearing is wasteful.

An opportunity to be heard does not require the equivalent of an evidentiary hearing in every case. Where there are no disputed facts, the motion proceedings, including briefs and arguments by both parties, provide ample opportunity for the parties to be heard. See K. Davis, Administrative Law Treatise, § 12.10 at 227 (1982 Supplement); Manor v. Department of Public Welfare, 796

A.2d 1020 (Pa. Cmwlth. 2002); United Healthcare Benefits Trust v. Insurance Comm'r of Pennsylvania, 620 A.2d 81 (Pa. Cmwlth. 1993); see also Estate of Miner v. Commercial Fisheries Entry Commission, 635 P.2d 827, 834 (Alaska 1981) (no administrative hearing is required when "there would be no substantial and material issue which could be resolved at a hearing").

The Plurality's reliance on Article I, Section 6 of the Pennsylvania Constitution is also problematic to the extent that it suggests that a constitutional right to a jury trial will be denied if this Court were to sanction the granting of summary judgment. As in any case where summary judgment is proper, the right to proceed further to a jury trial is foreclosed. Grant v. GAF Corp., 608 A.2d 1047 (Pa. Super. 1992), aff'd, 536 Pa. 429, 639 A.2d 1170 (1994) (per curiam). Neither the Pennsylvania nor the United States Constitutions grant an absolute right to a jury trial in a civil action. Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998) (where a plaintiff failed to establish a cause of action, the constitutional right to a jury trial is not violated when that plaintiff's suit is dismissed).

I also disagree with the Plurality's attempt to equate an in rem civil forfeiture proceeding under the Forfeiture Act to a criminal proceeding. The plain language of the Forfeiture Act states that "the proceedings for the forfeiture or condemnation of property...shall be in rem in which the Commonwealth shall be the Plaintiff and the property the defendant." A civil forfeiture proceeding is an in rem action which determines the forfeitability of property. In rem actions involve the determination of the status of a thing, and the rights of persons generally with respect to that thing. See Black's Law Dictionary, 797 (7th ed. 1999). An action in rem is a type of civil action.

Although our courts have acknowledged that persons facing forfeiture are entitled to certain constitutional protections under the Fourth and Fifth Amendments, the fact remains that a forfeiture proceeding under the Forfeiture Act, although "quasi-criminal in nature," is nevertheless in rem and is, therefore, a civil proceeding. One 1988 Toyota Corolla (Blue Two-Door Sedan) Pa. License TPV 291, 675 A.2d 1290 (Pa. Cmwlth. 1996). The cases cited by the Plurality do not hold that forfeiture proceedings are criminal proceedings to which there is an unconditional right to a hearing. The criminal burden of proof "beyond a reasonable doubt" is not applied. Commonwealth v. Landy, 362 A.2d 999 (Pa. Super. 1976). There is no constitutional right to the appointment of counsel because, in our Supreme Court's words, "the property interests at stake command a lesser level of due process protection" than a criminal proceeding. Commonwealth v. $9,847.00 U.S. Currency, 550 Pa. 192, 704 A.2d 612 (1997).

I also disagree on a more basic level with the Plurality's conclusion that a motion for summary judgment is not available in a civil forfeiture proceeding because such a proceeding is "begun by a petition." There is caselaw which holds that the Rules of Civil Procedure are not applicable to statutory appeals, tax assessment cases, or proceedings before administrative agencies and commissions. There is no caselaw which precludes, altogether, the application of the Rules of Civil Procedure to a proceeding commenced by "petition."

In Appeal of Borough of Churchill, 525 Pa. 80, 575 A.2d 550 (1990), our Supreme Court reaffirmed a trial court's inherent right to employ rules for procedure and practice so long as the rules do not conflict or violate the laws of the Commonwealth or the United States. Id. at 89, 575 A.2d at 554. The Supreme Court reversed an identical attempt by this Court to take away the common pleas court's inherent power to regulate its own practice simply because the Rules of Civil Procedure did not apply to the underlying proceeding. In that case, the trial court invited the parties to file exceptions in a statutory appeal proceeding. This Court quashed tax assessment appeals as untimely because the Civil Rules were inapplicable to statutory appeals. The Supreme Court reversed, holding that although post-trial motions under the Rules of Civil Procedure have not been incorporated by reference in statutory appeals, the trial courts, in the absence of local rules, may "invite" exceptions in matters such as statutory appeals if they choose to do so:

Since the Rules of Civil Procedure are inapplicable to statutory appeals, rules of practice and procedure did not have to be enacted in strict compliance with the provisions of Rule 239. Rather, our trial courts have had the right to enact rules and publish these to cover practice in this area of the law. Where they have not created and published such local rules, then each trial court has been vested with the full authority of the court to make rules of practice for the proper disposition of cases before them and that we have enforced those rules unless they violated the Constitution or laws of the Commonwealth or United States, or our state-wide rules. The general, inherent power of all courts to regulate their own practice, without control, on the ground of expediency, has been recognized by this court for almost one hundred and eighty years, [citations omitted], and we see no reason at this time to disturb that well-settled principle.

Permitting or refusing to accept exceptions is as much within the trial court's discretion as is the right to ask counsel to submit a brief covering a particular question of law. No rules govern this practice, but we know that where the trial court asks for such help, the bar is quick to respond to assist the bench in disposing of the case at hand...

In this case the trial court invited the parties to file exceptions and accepted them and disposed of them, and then issued its final order. This practice was not in violation of our case law or statewide rules. Our precedents have recognized the practice of inviting exceptions in tax assessment cases, and it is interesting to note that we have never imposed this step on the trial courts but have merely recognized that if they feel that such a practice is beneficial to them, who are we to interfere with the trial court's regulation of the practice before it...

Churchill, at 89-91, 575 A.2d at 554-555.

In civil forfeiture proceedings, the Supreme Court has not specifically declared that the Rules of Civil Procedure do not apply. That does not mean, as the Plurality holds, that the common pleas court is precluded from applying rules of practice for the proper disposition of cases before it. Churchill.

Whether the Rules of Civil Procedure are applicable to civil forfeiture proceedings is not a question that turns on whether it begins by petition. The petition serves merely to bring before the common pleas court a civil in rem action for relief where it is to be heard in the same manner as any non-jury proceeding. Even though the term "petition" is used to describe how civil forfeiture proceedings begin, focusing on the "substance" of the proceedings rather than the title is the far more judicious approach.

The point of a trial or an evidentiary hearing is to determine relevant facts. However, our courts have held repeatedly that an evidentiary hearing is not required before entry of summary judgment under circumstances in which no factual issues are in dispute. United Healthcare Benefits Trust v. Ins. Comm'r of Pennsylvania, 620 A.2d 81 (Pa. Cmwlth. 1993). This rule applies to lawsuits involving rights to real property, money, personal injuries, constitutional rights, rights that are just as important as the rights involved in civil forfeiture proceedings. Countless federal courts have held that summary judgment is appropriate in civil forfeiture actions when there is no genuine issue of material fact. See, e.g., United States v. Two Parcels of Real Property Located in Russell County, 92 F.3d 1123, 1129 (11th Cir. 1996); U.S. v. $133,420.00 in U.S. Currency, 672 F.3d 629 (9th Cir. 2012); United States v. $50,720, 589 F.Supp.2d 582, 584 (E.D.N.C. 2008); United States v. $10,000.00 in U.S. Currency, 348 F.Supp.2d 612, 615-16 (M.D.N.C. 2004). Is there any reason why it should not be applied in our State's civil forfeiture proceedings to eliminate those cases prior to hearing where a party is unable to make out a claim or defense?

Here, the Commonwealth produced a duly recorded Deed which conveyed all interest in and title to the Property to Palazzari and no one else. Palazzari baldly claimed his mother "ran the business" and was "for all intents and purposes" the owner of the Property. He offered no writing to show that the Property was assigned, granted or surrendered to his mother. There was no legal doubt that Palazzari was the owner of the Property on this record.

Our caselaw holds that the Rules of Civil Procedure apply to forfeiture cases as long as a rule does not conflict with a specific provision of the Forfeiture Act. With respect to whether summary judgment applies to forfeiture proceedings, summary judgment is appropriate in a forfeiture case where a hearing would serve absolutely no purpose, such as where the material facts are not in dispute. Summary judgment was appropriate because Palazzari was the legal owner of the Property on the Deed.

BERNARD L. McGINLEY, Judge

Judge Leadbetter joins in this dissent.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania v.

All That Certain Lot Or Parcel Of Land Located At 605 University Drive, State College, Centre County, Pennsylvania And Described With Particularity At Deed Book 1419 Page 0976

In The Office Of The Recorder Of Deeds, Tax Parcel Number

36-014-123A

Appeal of: Gregory Palazzari : No. 789 C.D. 2011

: Argued: March 13, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

CONCURRING AND DISSENTING

OPINION BY JUDGE COHN JUBELIRER FILED: November 21, 2012

I agree with this Court's Order remanding this case for a hearing because I believe that summary judgment is not available in a proceeding under the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§ 6801-6802. However, I believe the Plurality goes too far when it also broadly declares that the Pennsylvania Rules of Civil Procedure (Rules) do not apply to forfeiture actions and overrules any previous cases in which those Rules were applied. Although the Plurality is correct that a hearing in open court must be held for the Commonwealth to sustain its burden

of proof under the Forfeiture Act before property can be taken and forfeited to the state pursuant to Section 6802(i) of the Forfeiture Act, 42 Pa. C.S. § 6802(i), I do not believe it is necessary, or prudent, to create a procedural vacuum by eliminating the use of the Rules. The Forfeiture Act does not contain any explicit preemption of the Rules and the procedures it establishes are not so comprehensive as to eliminate the necessity for the Rules (such as those for discovery) with which the courts and the bar are familiar and currently use. While there may be theoretical justification in treating a forfeiture action differently because it is begun by petition, the practical complications resulting from this unnecessary break from our case law would be significant.

The Plurality asserts that the "General Assembly provided the complete procedure to be followed that preempts the [forfeiture] area." Commonwealth v. All That Certain Lot Or Parcel Of Land Located At 605 University Drive, __ A.3d __, __ (Pa. Cmwlth., No. 789 C.D. 2011, filed November 21, 2012), slip op. at 12

(Palazzari) (Plurality) (emphasis added). In analyzing whether the Forfeiture Act entirely preempts the Rules, we must first determine which of the three types of preemption is potentially implicated. In this case, the Forfeiture Act contains no language that expressly bars the application of the Rules to forfeiture cases; therefore, there is no express preemption. Hoffman Mining Company, Inc. v. Zoning Hearing Board of Adams Township, Cambria County, __ Pa. __, __, 32 A.3d 587, 593 (2011). There are two remaining forms of preemption which would need to be implied from the statutory scheme in order to apply: conflict and field preemption. Id. at ___, 32 A.3d at 594. Although the Plurality does not explain its preemption analysis, it appears to be applying field preemption, which is appropriate only when "analysis of the entire statute reveals the General Assembly's implicit intent to occupy the field completely and to permit no [other] enactments." Id. However, reviewing the text of the Forfeiture Act, I do not believe that the General Assembly intended to occupy all of the procedural aspects of forfeitures so completely so as to prohibit the use of the Rules where necessary.

The Forfeiture Act does not contain a "complete procedure," as the Plurality states, Palazzari, slip op. at 12; rather, there are areas in which the Forfeiture Act provides no procedure to be followed. In situations where the Forfeiture Act is silent I would, consistent with our precedent, apply the principles of conflict preemption and continue to apply the Rules where they do not conflict with the Forfeiture Act's express provisions. For example, in Commonwealth v. $8,006.00 U.S. Currency Seized from Carter, 646 A.2d 621 (Pa. Cmwlth. 1994), we held that the discovery provisions of the Rules applied in civil forfeiture proceedings because the Forfeiture Act was silent on the issue and Rule 4001 of the Rules provides that the discovery rules applied to "'any civil action or proceeding at law or in equity brought in or appealed to any court which is subject to these rules.'"*fn1 Id. at 624 (emphasis added) (quoting Pa. R.C.P. No. 4001). In Commonwealth v. One 1999 Cadillac Seville, 853 A.2d 1093, 1095 (Pa. Cmwlth. 2004), we relied upon the Rules to determine what constituted "proper service by certified mail" where there was a question whether the property owner's brother signed for the forfeiture petition sent by certified mail. We further relied on the Rules in Commonwealth v. 1992 Chevrolet Seized from Hill, 844 A.2d 583, 585-86 (Pa. Cmwlth. 2004), to hold that, even where a respondent/property owner does not appear at a forfeiture hearing, the Commonwealth is required to proceed with its case in chief and is obligated to present evidence in support of its forfeiture petition.*fn2 In contrast, the Forfeiture Act provides no procedure for the courts or parties to follow in resolving such questions.

Where the Rules do conflict with the Forfeiture Act, we have, consistent with the principles of conflict preemption, declined to apply them. For example, in Commonwealth v. $1,800 U.S. Currency, 679 A.2d 275, 277 (Pa. Cmwlth. 1996), this Court declined to apply the Rules to a forfeiture proceeding to vacate a forfeiture order based on the property owner's claim that the Commonwealth's notice, which did not contain a notice to defend, was insufficient under Rule 1018.1.*fn3 We held that the contents of the Commonwealth's notice were specifically provided for in the Forfeiture Act (which did not require a notice to defend) and, therefore, the Commonwealth's notice was not required to also comply with the Rules. Id. Similarly, in Commonwealth v. 542 Ontario Street, Bethlehem, PA 18105, 989 A.2d 411, 415-16 (Pa. Cmwlth. 2010), we held that where the Forfeiture Act's express provisions regarding the commencement of a forfeiture proceeding, which we concluded were adequate to inform a property owner of the potential forfeiture, differed from the Rules with respect to certain aspects of service and form, the Forfeiture Act's provisions would apply. In each of these instances, we either used the Rules to enhance and fill in the gaps of the Forfeiture Act's provisions or, where no gaps existed or where there was a conflict, we rejected the application of the Rules. I believe that the continued application of the Rules in this fashion is consistent with the Forfeiture Act itself and with principles of stare decisis.

The Plurality broadly states that, because forfeiture proceedings are begun by petition, the Rules can never apply. I believe that elevates form over substance. Although these matters are begun by filing a petition, the substance of that petition requires specificity as to the seized property itself, the details of the seizure, the owner (if known), the possessor(s) (if known), the allegations of material fact that support the property's seizure, a prayer for an order of forfeiture, and a notice informing the owner that they must file an answer within 30 days and that the failure to do so can result in a decree of forfeiture being entered against the property. 42 Pa.

C.S. § 6802(a), (b). Such requirements are akin to those required to be set forth in a civil complaint. I would not, as the Plurality does, reject decades of precedent merely based on the method such proceedings are commenced.*fn4

I agree with the Plurality that summary judgment is not applicable in forfeiture proceedings because Section 6802(i) requires a hearing. I would also note that, even if summary judgment were available, I would not grant summary judgment in this case because Gregory Palazzari has alleged that there is a genuine issue of material fact in dispute regarding the ownership of the Property.

The standard by which motions for summary judgment are governed is set forth in the Rules:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:

(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa. R.C.P. No. 1035.2. "[S]ummary judgment may be granted only in cases where the right is clear and free from doubt." Marks v. Tasman, 527 Pa. 132, 134-35, 589 A.2d 205, 206 (1991). It is the moving party who bears "the burden of proving the nonexistence of any genuine issue of material fact." Id. at 135, 589 A.2d at 206. Moreover, in considering a motion for summary judgment, we must view the record "in the light most favorable to the nonmoving party" and resolve "all doubts as to the existence of a genuine issue of material fact . . . against the moving party." Id.

The identity of the owner of the Property is a material fact in a forfeiture proceeding. Palazzari has repeatedly asserted that his mother, and not he, is the owner of the Property and that he possesses documents to establish this fact. (Answer to Forfeiture Petition ¶ 5 (asserting that his mother is "for all intent[s] and purposes the owner of the [P]roperty"); Amended Answer to Forfeiture Petition ¶ 5 (same); Answer to Motion for Summary Judgment ¶ 11 (mother is de facto owner of the Property, operator of the business, and he has numerous documents so proving); Trial Ct. Op. at 4 (stating that Palazzari claimed that he had documents that could establish his mother's ownership).) Normally, the courts are to resolve all doubts as to the existence of a genuine issue of material fact against the moving party, which would be the Commonwealth in this case. However, here, the Dissent and the trial court discount these factual allegations.

Because I believe that the Rules should continue to be applied where the Forfeiture Act is silent or where there is no conflict with the Forfeiture Act, which is not the case in the present matter, I agree with this Court's Order reversing the trial court's Order and remanding the matter for a hearing under the Forfeiture Act.

RENEE COHN JUBELIRER, Judge

Judge McCullough joins in this concurring & dissenting opinion.


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