Argued: February 10, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,
HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE
ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge,
HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E.
COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge.
PATRICIA A. McCULLOUGH, Judge.
dispositive question presented on appeal is whether the
doctrine of common law forfeiture exists in Pennsylvania and
can serve as a legal basis to allow the Commonwealth to
forfeit any property with a "nexus" to a crime
absent any statutory authority to do so. We conclude that
common law forfeiture, as that concept originated and
developed in England, was never incorporated into or became
part of our Commonwealth's common law tradition. Based
upon our research, the Commonwealth's organic law, namely
Article 9, Sections 18 and 19 of the Pennsylvania
Constitution of 1790,  denounces and effectively abolishes any
notion of common law forfeiture and that the predominate, if
not unanimous, weight of the authority has determined that
common law forfeiture never made it across the seas to
America. Therefore, absent a statute that specifically
authorizes the forfeiture of property, the Commonwealth and
the courts have no authority to seek and order forfeiture of
so-called derivative contraband.
Irland appeals from the March 9, 2015 order of the Court of
Common Pleas of Adams County (trial court) granting the
Commonwealth's motion for forfeiture and destruction of
property and denying Irland's motion for return of
property. Because the Commonwealth sought forfeiture based on
a common law theory, and there was no statute that explicitly
authorized the forfeiture, we reverse.
facts here are not in dispute. On August 25, 2014, Irland
entered a guilty plea to the summary offense of disorderly
conduct, see section 5503(a)(4) of the Crimes Code,
18 Pa.C.S. §5503(a)(4), for an incident on November 7,
2013, when Irland was driving on a road in Adams County and a
driver behind him was tailgating his car. In response, Irland
displayed his handgun to the driver through the rear
windshield of his vehicle, in an apparent attempt to induce
the driver behind him to increase the distance between the
two vehicles. Someone contacted the authorities, and the
local police detained Irland and confiscated the handgun. The
Commonwealth charged Irland with simple assault, harassment,
disorderly conduct as a third degree misdemeanor, and
disorderly conduct as a summary offense. Following his guilty
plea to disorderly conduct as a summary offense, the trial
court ordered Irland to pay a $200.00 fine.
December 10, 2014, Irland filed a motion for return of the
handgun. On February 4, 2015, the Commonwealth filed a motion
for forfeiture and destruction of the handgun based on a
theory of common law forfeiture. On March 9, 2015, the trial
court denied Irland's motion for return of property and
ordered that the handgun be destroyed. Irland then filed a
timely notice of appeal.
April 2, 2015, the trial court directed Irland to file a
concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b), which Irland did on April 15, 2015. In
his statement, Irland contended that there was no such thing
as common law forfeiture in Pennsylvania and that his
property could only be forfeited pursuant to a statute.
Irland also asserted, in the alternative, that the
legislature enacted a comprehensive scheme of statutory
forfeiture which displaced and superseded common law
7, 2015, the trial court filed an opinion in support of its
March 9, 2015 order pursuant to Pa.R.A.P. 1925(a). Citing
this Court's decision in Commonwealth v. One 2001
Toyota Camry, 894 A.2d 207 (Pa. Cmwlth. 2006) (en banc),
as well as the Superior Court's decisions in
Commonwealth v. Salamone, 897 A.2d 1209 (Pa. Super.
2006), and Commonwealth v. Crosby, 568 A.2d 233 (Pa.
Super. 1990), the trial court determined that "there is
no doubt that Pennsylvania appellate courts currently
recognize the existence of common law forfeiture."
(Trial court op. at 3.) The trial court noted that it was not
within that court's province "to forge new legal
ground, but simply to apply the law as it has been
interpreted by the higher courts." Id. The
trial court also concluded that for purposes of common law
forfeiture, there was no qualitative difference between a
felony conviction and a summary offense conviction, and found
that the Commonwealth established a substantial nexus between
the crime committed and the object to be forfeited.
Id. at 3-4.
addition, the trial court determined that the Controlled
Substances Forfeiture Act (Drug Forfeiture Act), 42 Pa.C.S.
§§6801-6802, was not a comprehensive legislative
scheme and does not prohibit common law forfeiture. The trial
court noted that there were other Pennsylvania statutes that
permitted forfeiture and determined that the Forfeiture Act
is not the exclusive authority for forfeiture actions. For
these reasons, the trial court concluded that common law
forfeiture has not been superseded by a pervasive statutory
then filed a timely appeal to this Court.
statement of questions portion of his appellate brief, Irland
asks: "Did the [trial] court commit an error of law in
recognizing the existence of a so-called 'common law
forfeiture' power that permits the Commonwealth to seize
any property with a 'nexus' to a crime, where no such
statutory authority otherwise exists?" (Brief for Irland
at 4.) In the argument portion of his brief, Irland's
contentions, distilled to their essence, advance a relatively
straightforward proposal: the proposition that common law
forfeiture exists in Pennsylvania is based on a
misinterpretation of statutory forfeiture authority. Irland
contends that even if government authority once existed to
seize property linked to a crime, it has been superseded by
comprehensive statutory authority defining the limits of
forfeiture. He argues that these statutes would be
superfluous if the General Assembly intended to retain common
law notions of forfeiture.
this Court does not in any way condone Irland's behavior,
upon our review, we find Irland's contentions meritorious
as a matter of law.
outset, this Court notes that decisional law recognizes two
types of contraband: contraband per se and
Contraband per se is property the mere possession of
which is unlawful . . . . Heroin and 'moonshine'
whiskey are examples of contraband per se.
Derivative contraband is property innocent by itself, but
used in the perpetration of an unlawful act. An example of
derivative contraband is a truck used to transport illicit
Commonwealth v. Howard, 713 A.2d 89, 92 (Pa. 1998).
Further, "[p]roperty is not derivative contraband merely
because it is owned or used by someone who has been engaged
in criminal conduct. Rather, the Commonwealth must establish
a specific nexus between the property and the alleged
criminal activity." Howard, 713 A.2d at 92.
case, there is nothing illegal about Irland's possession
of a handgun. In re Firearms, Eleven, 922 A.2d 906,
910 (Pa. Super. 2007). The handgun, or property, was used in
perpetration of the summary offense of disorderly conduct.
Therefore, this case concerns the issue of whether the
property is derivative contraband. See id. at
910-11. Our following discussion regarding common law
forfeiture is strictly limited to those instances where, in
the absence of a statute, the derivative contraband is the
item that is sought to be forfeited.
Common Law Forfeiture
1776, forfeiture existed in England both at common law and by
statute. Austin v. United States, 509 U.S. 602, 611
(1993). Specifically, there were three kinds of forfeiture:
(1) deodand, (2) forfeiture upon conviction for a felony or
treason, and (3) statutory forfeiture. Id.
common law the value of an inanimate object directly or
indirectly causing the accidental death of a King's
subject was forfeited to the Crown as a deodand. The origins
of the deodand are traceable to Biblical and
pre-Judeo-Christian practices, which reflected the view that
the instrument of death was accused and that religious
expiation was required." Austin, 509 U.S. at
611 (citations and internal quotation marks omitted).
"This forfeiture proceeding was In rem in nature with
the property itself considered [to be] the offender: It is
the property to a legal fiction, held guilty and condemned to
a legal fiction, held guilty and condemned as though it was
conscious instead of inanimate and insentient."
Commonwealth v. 2010 Buick Enclave, 99 A.3d 163,
166-67 (Pa. Cmwlth. 2014) (quoting Various Items of
Personal Property v. United States, 282 U.S. 577, 581
as this Court has recognized, "[d]eodand was never
embraced in American common law." 2010 Buick
Enclave, 99 A.3d at 167 (citing Calero- Toledo v.
Pearson Yacht Leasing Co., 416 U.S. 663, 682 (1974)). In
Calero-Toledo, the United States Supreme Court
determined whether a forfeiture statute passed constitutional
muster. In doing so, the United States Supreme Court traced
the history of common law forfeiture and cited
Parker-Harris Co. v. Tate, 188 S.W. 54 (Tenn. 1916),
wherein the Supreme Court of Tennessee observed:
The doctrine [of deodand], after being subtly refined and
pared down, was discarded in England by Stat. 9 and 10,
Victoria, c. 62. To the credit of American jurisprudence,
from the outset the doctrine was deemed to be so repugnant to
our ideas of justice as not to be included as a part of the
common law of this country.
Parker-Harris Co., 188 S.W. at 55. Based on this
authority, the United States Supreme Court declared that
"[d]eodands did not become part of the common-law
tradition of this country." Calero-Toledo, 416
U.S. at 682.
scholars have noted that, in theory, deodand has similarities
to modern-day statutory forfeiture because they both focus on
forfeiting an object or thing that is used in connection with
a crime. George M. Dery III, Adding Injury to Insult: The
Supreme Court's Extension of Civil Forfeiture to Its
Illogical Extreme in Bennis v. Michigan, 48 S.C. L. Rev.
359, 364 (1997) ("Deodand's 'guilty
property' theme, however, survives in today's
forfeiture statutes."); Scott A. Nelson, Comment,
The Supreme Court Takes a Weapon from the Drug War
Arsenal: New Defenses to Civil Drug Forfeiture, 26 St.
Mary's L.J. 157, 164-65 (1994). The United States Supreme
Court itself has made the connection between this ancient
form of forfeiture and current legislation: "The modern
forfeiture statutes are the direct descendants of this
(English deodand) heritage." United States v. United
States Coin & Currency, 401 U.S. 715, 720 (1971).
Regardless, as previously explained, the concept of deodand
never took hold in colonial America or elsewhere in this
of Felony or Treason
second kind of common-law forfeiture fell only upon those
convicted of a felony or of treason. The convicted felon
forfeited his chattels to the Crown and his lands escheated
to his lord; the convicted traitor forfeited all of his
property, real and personal, to the Crown."
Austin, 509 U.S. at 611-12 (citations and internal
quotation marks omitted). "Such forfeitures were known
as forfeitures of estate. These forfeitures obviously served
to punish felons and traitors and were justified on the
ground that property was a right derived from society which
one lost by violating society's laws." Id.
(citations omitted). Upon conviction of a felony or treason,
the offender was considered to have suffered a "legal
death, " also known as "attainder, " which has
been defined as "the act of extinguishing a person's
civil rights[.]" Black's Law Dictionary, 146 (9th
Ed. 2009). The commission of the felony also resulted in
"corruption of the blood, " which has been
described as "[a] defunct doctrine, now considered
unconstitutional, under which a person loses the ability to
inherit or pass property as a result of an attainder or being
declared civilly dead." Id. at 397.
See Robert Lieske, Civil Forfeiture Law:
Replacing the Common Law with a Common Sense Application of
the Excessive Fines Clause of the Eighth Amendment, 21
William Mitchell L. Rev. 265, 272 (1995).
English common law, the crimes of felony and treason - or
what we would simply call today "felony offenses" -
were defined as such solely because the punishment imposed
upon conviction was forfeiture of the individual's
property and estate. 4 William Blackstone, Commentaries on
the Laws of England 94 (1766) ("Felony, in the general
acceptation of our English law, comprises every species of
crime, which occasioned at common law the forfeiture of lands
or goods."); see Lynch v. Commonwealth, 88 Pa.
189 (1879). Our Supreme Court has recognized this principle
in confirming that the distinction between a felony and a
misdemeanor is illusory because, unlike the English common
law, an individual does not automatically forfeit his
property and estate following a felony conviction. 88 Pa. at
192-93. As our Supreme Court stated:
The fact that larceny is called a felony is of no importance.
Felony, as a term, is incapable of any definition, and is
descriptive of no offence. . . . [I]t now imports an offence
which occasions a total forfeiture of either lands or goods,
or both, at common law, and to which capital or other
punishment may be superadded, according to the degree of
guilt. And even this forfeiture was abolished by the
Constitution of this state, of 1790, except during the life
of the offender: art. 9, §19. It is, therefore, well
said . . . that the term felony has become useless and
unintelligible, for it seems to mean something, when in truth
it conveys no distinct ideas.
"[f]orfeiture of a felon's property was also
rejected in this country" and most states have
explicitly done so "through their constitutions or
general statutes." Scott A. Hauert, An Examination
of the Nature, Scope, and Extent of Statutory Civil
Forfeiture, 20 U. Dayton L. Rev. 159, 167-68 & nn.
64, 72-74 (1994). See Pa. Const. art. 1, §18;
Terrance G. Reed & Joseph P. Gill, RICO Forfeitures,
Forfeitable "Interests, " and Procedural Due
Process, 62 N.C. L. Rev. 57, 61 (1983). For example, in
Farley v. $168, 400.97, 259 A.2d 201 (N.J. 1969),
the Supreme Court of New Jersey proclaimed: "The
doctrine of forfeiture upon conviction of treason or felony
of course never obtained in our State, N.J.S.A. 2A:152-2, or
elsewhere in this country." Farley, 259 A.2d at
and finally, "English Law provided for statutory
forfeitures of offending objects used in violation of the
customs and revenue laws. The most notable of these were the
Navigation Acts of 1660 that required the shipping of most
commodities in English vessels. Violations of the Acts
resulted in the forfeiture of the illegally carried goods as
well as the ship that transported them."
Austin, 509 U.S. at 612. "Statutory civil
forfeiture, as the name suggests, arises by acts of
legislatures, state or federal, which ascribe certain
criminal character to property, not persons, and provide for
their forfeiture to the government." 2010 Buick
Enclave, 99 A.3d at 165-66.
colonial Pennsylvania, while still a subject of England, and
as a result of pressure from the Crown, our General Assembly
codified the law of England in the Act of 1718.
It is well known that William Penn was opposed to the
infliction of capital punishment except in the single
instance of wilful murder, and beginning with temporary laws,
he endeavored to reduce the punishment of all other offences,
capital by the laws of England, to lower grades. His efforts
were fruitless, however, for when these laws were enacted
permanently, they were repealed by the queen in council. This
led, as the preamble to the [Act of 1718] clearly indicates,
to its passage. It not only enacted capital punishment for a
number of offences, but declared in the 6th section that
"when any persons shall be so as aforesaid convicted or
attainted of any of the aforesaid crimes, they shall suffer
as the laws of Great Britain now do, or hereafter shall,
direct and require in such cases respectively."
Lynch v. Commonwealth, 88 Pa. 189, 191 (Pa. 1879)
the Act of 1718 may have been the earliest form of a
forfeiture statute in Pennsylvania, by 1791 statutory
forfeiture took a more remedial - rather than punitive -
appearance. More specifically, in cases concerning
convictions for robbery and burglary, statutory law only
permitted forfeiture of personal property as a secondary
measure and only to the extent that the offender could ...