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

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. ...


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