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Commonwealth v. All That Certain Lot Or Parcel of Land Located at 605 Univ. Drive

Supreme Court of Pennsylvania

November 19, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellant
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 GREGORY PALAZZARI, Appellee

Argued April 9, 2014

Page 412

Appeal fro the order of the Commonwealth Court dated November 21, 2012 at No. 789 CD 2011 reversing the order of the Centre County Court of Common Pleas dated April 15, 2011 at No. CP-14-MD-1134-2009 and remanding to the trial court. Grine, David E., President Judge, Trial Court Judge. Pellegrini, Dan, President Judge, McGinley, Bernard L., Judge, Leadbetter, Bonnie Brigance, Judge, Cohn Jubelirer, Renee, Judge, Leavitt, Mary Hannah, Judge, Brobson, P. Kevin, Judge, McCullough, Patricia A., Judge, Intermediate Court Judges. 61 A.3d 1048 .

For Commonwealth of Pennsylvania, Appellant: Kathleen Granahan Kane, Esq., Jennifer Anne Peterson, Esq., Richard D. Sheetz, Esq., PA Office of Attorney General.

For Gregory Palazzari, Appellee: Steven Paul Passarello, Esq., Passarello & Sisto, P.C.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE BAER. Mr. Chief Justice Castille, Messrs. Justice Saylor and Eakin, Madame Justice Todd and Mr. Justice Stevens join the opinion.

OPINION

Page 413

MR. BAER, JUSTICE

In this discretionary appeal, we consider the general applicability of the Pennsylvania Rules of Civil Procedure to forfeiture proceedings brought pursuant to the Controlled Substances Forfeiture Act (Forfeiture Act, or Act), 42 Pa.C.S. § § 6801-02, and, specifically, the availability of summary judgment pursuant to Rule 1035.2, Pa.R.C.P. 1035.2, in such proceedings. Although the trial court granted forfeiture of the subject property to the Commonwealth upon its motion for summary judgment, the Commonwealth Court reversed, broadly holding that the Rules of Civil Procedure generally and Rule 1035.2 in particular are inapplicable to forfeiture proceedings. The Commonwealth has appealed. Because we conclude that the Rules of Civil Procedure apply to forfeiture proceedings where they do not conflict with the Forfeiture Act, and that there is no conflict between the entry of summary judgment pursuant to Rule 1035.2 and the Act, we reverse and reinstate the trial court's entry of summary judgment in favor of the Commonwealth.

On August 21, 2009, following a joint investigation by the Pennsylvania Office of the Attorney General and the Centre County Drug Task Force into cocaine trafficking by Gregory Palazzari (Appellee), he was arrested and charged with multiple drug trafficking offenses under the Controlled Substances, Drug, Device and Cosmetic Act (Drug Act).[1] The Asset Forfeiture and Money Laundering Section of the Attorney General's Office petitioned the trial court for forfeiture of Appellee's property located at 605 University Drive, State College (the Property), in accord with the Forfeiture Act, 42 Pa.C.S. § 6801(a), alleging that Appellee had used the Property for the storage and sale of cocaine, as well as a place to meet his drug supplier.[2] Situated at this address was a gas station known as Greg's Sunoco.

On September 17, 2010, Appellee pleaded guilty to multiple sales of cocaine, and was sentenced on October 18, 2010. Two days later, Appellee filed an answer to the Commonwealth's forfeiture petition, admitting that he was the owner of the Property " on paper," but asserting that " for all intent[s] and purposes the owner of the [P]roperty would be [Appellee's] mother [Santina Palazzari]." Answer to Petition for Forfeiture and Condemnation, ¶ 5, Reproduced Record (R.R.) at 35a. Appellee

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further denied that he used the Property to facilitate violations of the Drug Act.

The Commonwealth engaged in discovery to discern ownership of the Property, and obtained numerous documents identifying Appellee as the sole owner.[3] Following discovery, the Commonwealth moved for summary judgment on its forfeiture petition pursuant to Rule 1035.2, arguing that the facts of record, Appellee's admissions, and documents provided during discovery established that there was no genuine issue of material fact and it was therefore entitled to judgment as a matter of law.[4]

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Appellee opposed the Commonwealth's motion, denying that there was no genuine issue of material fact. Specifically, Appellee asserted that his mother was the de facto owner of the Property and operator of Greg's Sunoco because she wrote most of the checks from the business checking account and was the sole person listed in the Articles of Incorporation originating the business. Appellee further asserted that the amount of the forfeiture was grossly disproportionate, and therefore unconstitutional.

On March 10, 2011, the trial court held a hearing on the Commonwealth's motion for summary judgment seeking forfeiture. Thereafter, Appellee argued that summary judgment was improper because the Pennsylvania Rules of Civil Procedure in general and Rule 1035.2 in particular are inapplicable to forfeiture actions.[5] As support, Appellee relied on Section 6802 of the Forfeiture Act, contending that it, not the Rules of Civil Procedure, provides the exclusive process for forfeiture proceedings; and further asserting that Section 6802(i) requires a hearing in every instance, thereby precluding the entry of summary judgment. 42 Pa.C.S. § 6802.[6]

Page 416

On April 15, 2011, the trial court granted the Commonwealth's motion for summary judgment. In its subsequent opinion in support of its order, the trial court addressed Appellee's argument that Section 6802 contains the exclusive process to be employed during forfeiture proceedings and that the Rules of Civil Procedure are therefore inapplicable. The trial court recognized that: there are gaps in the process provided in Section 6802; Pennsylvania courts have consistently characterized forfeiture proceedings as civil in rem actions; and Pennsylvania courts have, accordingly, utilized the Rules of Civil Procedure to complete such gaps. See 42 Pa.C.S. § 6802(a) (characterizing forfeiture actions as " in rem " ); Commonwealth v. One 1991 Cadillac Seville, 853 A.2d 1093, 1095 (Pa.Cmwlth. 2004) (holding that the Pennsylvania Rules of Civil Procedure apply

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to in rem forfeiture proceedings where they do not conflict with the Forfeiture Act; and, because the Forfeiture Act authorizes service by mail, consideration of the Civil Rules is appropriate for determining what constitutes proper service by mail); Commonwealth v. $8,006 U.S. Currency Seized from Carter, 166 Pa.Cmwlth. 251, 646 A.2d 621 (Pa.Cmwlth. 1994) (holding that the Act is silent with regard to the discovery process, and, therefore, " the discovery rules found in the Pennsylvania Rules of Civil Procedure are applicable to forfeiture proceedings." ); Commonwealth v. 6969 Forest Avenue, 713 A.2d 701, 703 (Pa.Cmwlth. 1998) (observing that the trial court had granted summary judgment on a petition for forfeiture); Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999, 1005 (Pa.Super. 1976) (holding that " [o]n issues of evidence, [forfeiture] proceedings should be treated as civil proceedings with the Commonwealth having the burden of proving the material allegations by a preponderance of the evidence only." ). The trial court therefore held that there was no support for Appellee's argument that summary judgment is generally unavailable in forfeiture proceedings, implicitly rejecting his reliance on Section 6802(i) in this regard.

On the merits of the question of ownership, the trial court held that there was no deed identifying Ms. Palazzari as the Property owner, and that her claim of ownership was therefore barred by the Statute of Frauds. See 33 P.S. § 1 (providing generally that no agreement for the sale of real property will be enforced unless it is in writing); Gerlock v. Gabel, 380 Pa. 471, 112 A.2d 78, 81 (Pa. 1955) (providing that the Statute of Frauds " is designed, not to encourage frauds, but to prevent them by forbidding the assertion of a right or interest in real estate by one who can show no written basis for the claim." ); Strausser v. PRAMCO, III, 2008 PA Super 28, 944 A.2d 761, 765 (Pa.Super. 2008) (providing that " [t]he purpose of the Statute of Frauds is to prevent the enforcement of unfounded fraudulent claims by requiring that contracts pertaining to interests in real estate be supported by written evidence." ). Because Appellee was the sole owner of the Property, as set forth in the documentary evidence, the trial court held that summary judgment in the Commonwealth's favor was appropriate.[7]

Appellee appealed to the Commonwealth Court, arguing first that the Pennsylvania Rules of Civil Procedure do not apply to proceedings brought under the Forfeiture Act, which provides the exclusive procedure for such proceedings, and, second, that Section 6802(i) of the Act mandates a hearing in every case, precluding summary judgment.[8] A Plurality of the Commonwealth Court agreed with Appellee with respect to both arguments, holding that the Rules of Civil Procedure are generally inapplicable to forfeiture proceedings because Section 6802 of the Forfeiture Act provides the exclusive procedure in such

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cases, and that Section 6802(i) mandates a hearing in every instance. Consequently, the Commonwealth Court reversed and remanded to the trial court for a hearing on the question of ownership.

Examining Section 6802 in its totality, the Plurality held that it sets forth a complete procedure regarding forfeiture, including the contents of a forfeiture petition; the prayer for relief; all aspects of the constitutional due process requirement of notice to property owners, including substitute notice when owners are not readily ascertainable; preservation of property; temporary restraining orders; allowable evidence; the holding of hearings; and burdens of proof. Commonwealth v. All That Certain Lot, Parcel of Land Located At 605 Univ. Drive, 61 A.3d 1048, 1051 (Pa.Cmwlth. 2012); 42 Pa.C.S. § 6802. Consequently, the Plurality held that Section 6802 supplanted the Rules of Civil Procedure, including Rule 1035.2.

As support for its holding, the Commonwealth Court considered whether forfeiture actions are essentially civil or criminal and, to the extent these actions are civil, whether the Rules of Civil Procedure should apply when Section 6802 does not prescribe a peculiar process. The Plurality concluded that although forfeiture proceedings are " nominally" civil, they are, when considered in their totality, more properly characterized as quasi criminal punitive proceedings, and should be treated as such. To reach this conclusion, the Plurality relied on United States Supreme Court decisions holding that certain Fifth and Fourth Amendment protections are applicable in forfeiture proceedings. See United States v. United States Coin and Currency, 401 U.S. 715, 718, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971) (holding that the Fifth Amendment privilege against self-incrimination applies to forfeiture proceedings); [9] One 1958 Plymouth Sedan v. ...


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