HomeMy WebLinkAbout96-0442 MiscellaneousCOMMONWEALTH
OF PENNSYLVANIA,
Plaintiff
vs
SAVINGS ACCOUNT NO.
015-004286
FINANCIAL TRUST
CORPORATION
6520 CARLISLE PIKE
MECHANICSBURG, PA,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-0442 MISCELLANEOUS
IN RE: PETITION TO OPEN JUDGMENT OF FORFEITURE
BEFORE OLER, J.
ORDER
AND NOW, this ,~ ~ day of March, 1998, after careful consideration of
Petitioner's petition to open the judgment of forfeiture, the deposition of record in this matter,
and the briefs submitted by both parties, and for the reasons stated in the accompanying opinion,
Petitioner's petition is DENIED.
BY THE COURT,
esley Oler, Jr.~, .~
Timothy M. Doherty, Esq.
Deputy Attorney General
Office of Attorney General
16th Floor, Strawberry Square
Harrisburg, PA 17120
Attorney for the Commonwealth
William T. Tully, Esq.
MANCKE, WAGNER, HERSHEY & TULLY
2233 North Front Street
Harrisburg, PA 17110
Attorney for the Petitioner
:rim
COMMONWEALTH
OF PENNSYLVANIA,
Plaintiff
vs
SAVINGS ACCOUNT NO.
015-004286
FINANCIAL TRUST
CORPORATION
6520 CARLISLE PIKE
MECHANICSBURG, PA,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-0442 MISCELLANEOUS
IN RE: PETITION TO OPEN JUDGMENT OF FORFEITURE
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., March 5, 1998.
Presently before the court is Petitioner Dennison Harold Small's petition to open a
judgment of forfeiture. The judgment or order of forfeiture followed Petitioner's failure to
respond to the Commonwealth's petition for forfeiture.
The primary issue in this case is whether Petitioner's failure to respond was excusable.
Petitioner maintains that it was because of a lack of adequate notice of the forfeiture proceeding.
For the reasons stated in this opinion, the court will conclude that the notice was adequate and
that the petition to open the judgment of forfeiture must be denied.
STATEMENT OF FACTS
On December 23, 1996, Dennison Harold Small (hereinafter, "Small" or "Petitioner")
was arrested and charged in Dauphin County with violations of the Controlled Substance, Drug,
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Device and Cosmetics Act.~ On this same date, the Commonwealth secured an order from this
court authorizing seizure of Savings Account No. 015-004286 at the Financial Trust Corporation
in Cumberland County, which was an account owned by Petitioner, and the account was seized
by the Commonwealth on that date.2
During his processing at the Pennsylvania State Police Barracks (Troop H) in Harrisburg,
Dauphin County, Small listed his address as 1929 Rudy Road, Harrisburg, Pennsylvania? As a
condition of his bail, which was set at a preliminary arraignment, Small was required to give
written notice of any change of address to the bail authority, clerk of courts, district attomey, and
court bail agency or other designated court bail officer within 48 hours of the change? Small
acknowledged and accepted this condition by his signature on the bail document? Initially, there
was a further condition of bail that Small have no contact with an individual named Sheri Clapp;6
~ See Act of April 14, 1972, P.L. 233, § 13(a)(30), (31), 35 P.S. § 780-113(a)(30), (31);
Stipulations, filed December 16, 1997, para. 1 (hereinafter, "Stipulations, para. "); N.T. 21,
Deposition of Dennison Harold Small, October 3, 1997 (hereinafter, "Dep.. ").
Petitioner was eventually found guilty of the charges. Stipulations, para. 37. He was still
awaiting sentence as of December 16, 1997./d.
2 See Command To Seize and Take Custody, December 23, 1996; Stipulations, para. 1.
3 Stipulations, para. 3.
Stipulations, para. 6.
See Stipulations, para. 7.
Stipulations, para. 9.
2
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however, this condition was deleted on February 25, 1997.?
Small learned of the seizure of his savings account in Cumberland County shortly after its
occurrence.8 In this regard, it is noted that on January 8, 1997, Small attempted to make an
automated teller machine withdrawal from the account, but the transaction was not completed;9 a
monthly statement from the aforesaid financial institution mailed to him in January of 1997 to
the 1929 Rudy Road, Harrisburg, Pennsylvania, address, showed that the account was closed
out;no and Small testified that upon inquiry to the bank around the time of the seizure he was told
that the Commonwealth had seized the account pursuant to a court order. ~
On March 12, 1997, the Commonwealth filed a Petition for Forfeiture and Condemnation
with respect to the savings account. An accompanying rule was issued by this court upon Small,
as owner of the property, to show cause by the filing of an answer to the petition within thirty
days of service why the forfeiture should not be ordered. The filing by the Commonwealth also
included a notice to plead in the following statutory form:
NOTICE TO ANSWER PETITION FOR
FORFEITURE AND CONDEMNATION
TO THE CLAIMANT OF WITHIN DESCRIBED
Stipulations, para. 10.
Dep. 66.
Stipulations, para. 14.
Stipulations, para. 12.
Dep. 69-70.
96-0442 MISCELLANEOUS
PROPERTY: YOU ARE REQUIRED TO FILE AN
ANSWER TO THIS PETITION, SETTING
FORTH YOUR TITLE IN, AND RIGHT TO
POSSESSION OF, SAID PROPERTY WITHIN
THIRTY (30) DAYS FROM THE SERVICE
HEREOF, AND YOU ARE ALSO NOTIFIED
THAT, IF YOU FAIL TO FILE SAID ANSWER,
A DECREE OF FORFEITURE AND
CONDEMNATION WILL BE ENTERED
AGAINST SAID PROPERTY.
The rule issued by the court provided that "[n]otice shall be given in accordance with law."
With respect to the provision of notice of the forfeiture proceeding by the Commonwealth
to Small, the Commonwealth sent the petition, notice to plead and rule to Small by certified mail,
restricted delivery, return receipt requested, at his 1929 Rudy Road, Harrisburg, Dauphin
County, address? It is not disputed by the parties that this address was in fact Small's "last
known address" for purposes of this case.~3 Attempts by the Postal Service to deliver these
documents were made on March 18, 1997, March 20, 1997, and March 30, 1997.~4 The
documents were returned by the Postal Service to the Commonwealth on April 2, 1997, with the
notation "Return to Sender -- Unclaimed.''~5 Small had not changed his mailing address with the
Post Office at this time, and no forwarding address was provided by the Post Office to the
~2 Stipulations, para. 17.
~3 Stipulations, para. 17, 23.
~4 Stipulations, para. 18-20.
~5 Stipulations, para. 21.
96-0442 MISCELLANEOUS
Commonwealth. 16
On April 8, 1997, Pennsylvania State Trooper Craig Snyder went in person to the address
at 1929 Rudy Road, Harrisburg, Pennsylvania, for the purpose of effecting personal service upon
Small at his residence? However, he was unable to locate Small by this method.18 Trooper
Snyder did not attempt to track Small down in Cumberland County by going to his known place
of employment,19 nor did he contact Small's attorney in the Dauphin County criminal proceeding
with respect to the Cumberland County forfeiture proceeding?
On April 8, 1997, Trooper Snyder left copies of the aforesaid forfeiture documents at the
1929 Rudy Road, Harrisburg, Pennsylvania, residence.2~ A strong inference that Small was in
fact aware of the commencement of forfeiture proceedings through these means arises from the
fact that shortly after the above-recited events relating to notice of the petition for forfeiture he
contacted bank officials and threatened to sue the institution for mining over the money in this
account to the Commonwealth.22
~6 See Stipulations, para. 22.
17 Stipulations, para. 23.
18 Stipulations, para. 22-24.
~9 See Stipulations, para. 26.
20 See Stipulations, para. 27.
2t Stipulations, para. 23.
22 See Stipulations, para. 28.
96-0442 MISCELLANEOUS
On April 28, 1997, and May 5, 1997, the Commonwealth served notice by publication of
the forfeiture proceeding in the Sentinel,23 a newspaper of general circulation in Cumberland
County. Small was aware of the existence of this newspaper?
Small continued to use 1929 Rudy Road, Harrisburg, Pennsylvania, as his designated
residence in May of 1997. On May 9, 1997, for instance, Small was involved in an incident
unrelated to the earlier charges, where he was interviewed and processed by the Harrisburg
police? While being processed for this incident, he gave his address as 1929 Rudy Road,
Harrisburg, Pennsylvania.26 A summons for that incident was mailed to the Rudy Road address
and was received by Small??
Throughout the initial part of the summer of 1997, Small received credit card statements
from Visa, MasterCard, Boscov's Department Stores, and Sears mailed to 1929 Rudy Road,
Harrisburg, Pennsylvania? He received monthly statements from his mortgage company
23 Stipulations, para. 29.
24 Dep. 79.
25 Dep. 39-40.
26 Id__~.
27 Dep. 22-23.
28 Dep. 23.
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through the mail at that address? He received utility bills through the mail at that address.3°
Income tax materials were received by him through the mail at that address.3~ Indeed, as of
October 3, 1997, Small's Pennsylvania driver's license and registrations for his two motor
vehicles still represented his residence to be 1929 Rudy Road, Harrisburg, Pennsylvania?
No timely answer was filed by Small to the Commonwealth's petition for forfeiture in the
instant case. On June 17, 1997, based upon Small's failure to respond, the Commonwealth filed
a motion for order of forfeiture. An order of forfeiture was issued by this court and was entered
on the docket on June 18, 1997.
The order of forfeiture was sent by ordinary mail to Small at 1929 Rudy Road,
Harrisburg, Pennsylvania.33 Small's receipt of this mail was evidenced by his filing on July 9,
1997, of the petition to open the judgment of forfeiture subjudice.
The petition to open judgment was based upon allegedly defective Service of the
Commonwealth's petition for forfeiture. In this regard, it may be noted that the petition to open
did not contain an express allegation that Small had in fact been unaware of the petition for
29 Dep. 29-30.
30 Dep. 34.
3~ Dep. 38-39.
32 Dep. 37-38.
33 Certificate of Service, filed July 2, 1997.
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96-0442 MISCELLANEOUS
forfeiture? Based upon all the evidence of record, the court does not find itself persuaded that
Small was unaware of the filing of the petition for forfeiture at a time when a timely answer
could have been filed?
34 In a subsequent deposition on October 3, 1997, Small testified that he had not received
a copy of the petition for forfeiture. (Dep. 61-2.)
35 At a deposition conducted on October 3, 1997, Small testified as to the events
surrounding the seizure and forfeiture proceedings pertaining to the savings account. Some of
his testimony in this regard has been related in the text of this opinion.
Small also testified at the deposition, inter alia, that his current residence was 305 Salt
Road, Enola, Cumberland County, Pennsylvania, and that he had lived at that address since
December 24, 1996. Dep. 6. He stated that his move to the Enola address had been precipitated
by the initial condition of his bail that he have no contact with Ms. Clapp, who lived at the Rudy
Road address. Dep. 8, 18. According to Small, he did not "habitate [at the Rudy Road address]
as [he] did prior to December 23[, 1996]."
On the other hand, Small conceded that he had provided no notification of any change of
address in connection with his bail; he explained that he felt that 1929 Rudy Road, Harrisburg,
Pennsylvania, was still his residence. Dep. 19, 21. He stated that he periodically returned to the
Rudy Road premises to maintain the property, "feed the animals," retrieve his mail and perform
general housekeeping duties. Dep. 19, 20. He or a member of his family tried to stop by the
residence every day to check on the house, feed the animals and pick up the mail, according to
his testimony. Dep. 20.
Small acknowledged that he was receiving mail at the Rudy Road residence after his
departure. Dep. 21. He stated that he did not file a change of address with the Post Office until
sometime during the summer of 1997. Dep. 25-26. At one point, according to his testimony,
delivery of his mail to the Rudy Road residence was interrupted; he contacted the Post Office
when this occurred, and recovered some mail that had accumulated, he stated. Dep. 43-48.
Small testified that he was unable to recall the period of interruption. Dep. 47.
When asked if he "remember[ed] seeing a notice from the U.S. Postal Service that there
was certified mail to be picked up at the postal station from the Office of Attorney General,"
Small responded that he had "received several notices to pick up certified mail at the postal
office in the past year." DeP. 55. Beyond estimating that these notices were received "several
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In response to Small's petition to open the judgment of forfeiture, the court issued a rule
upon the Commonwealth to show cause why the judgment should not be opened.36 The rule to
show cause, in the form supplied by Pennsylvania Rule of Civil Procedure 206.5(d), provided for
an answer to the petition to open the judgment, depositions and argument.
Following the filing of an answer by the Commonwealth on August 5, 1997, and a
deposition of Small conducted on October 3, 1997, oral argument was held on December 9,
1997. The record was supplemented pursuant to an agreement of counsel reached at the oral
months" prior to October 3, 1997, Small advised that he could not indicate their dates. Dep. 55-
56.
Small conceded that his mail may have been picked up three or four times a week during
April of 1997. Dep. 64. When asked specifically whether the Commonwealth's petition for
forfeiture was picked up on April 8, 1997 (the date on which Trooper Craig left a copy at the
residence), or shortly thereafter, he responded that he did not remember doing so. Id.
Small testified that he had worked at Honda BMW Motorsports in Mechanicsburg,
Cumberland County, Pennsylvania, continuously during 1997. Dep. 78-79. He did not make a
practice of reading the Sentinel newspaper, according to his testimony. Dep. 80.
As noted in the text of this opinion, the court was not persuaded that Petitioner lacked
awareness of the forfeiture proceedings at a time when an answer to the petition could have been
timely filed. He and his counsel in the criminal case had made a conscious decision not to take
action with respect to the seizure of the savings account in Cumberland County, prior to
resolution of the criminal case in Dauphin County, unless compelled to do so by a forfeiture
filing by the Commonwealth. Stipulations, para. 36. At the time that the petition for forfeiture
was filed in Cumberland County, the Dauphin County case had not been finally concluded.
Stipulations, para. 37. It seems possible to the court that Petitioner failed to recall that continued
deferral of the forfeiture issue would not be possible when the Commonwealth took the action it
did.
36 Order of Court, July 17, 1997.
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96-0442 MISCELLANEOUS
argument by certain stipulations of fact filed on December 16, 1997.
DISCUSSION
Pennsylvania's Supreme Court has stated that "a petition to open judgment is addressed
to the equitable powers of the Court and is a matter of judicial discretion." $chultz v. Erie
Insurance Exchange, 505 Pa. 90, 93,477 A.2d 471,472 (1984). The Court has established h
three-prong test to determine whether a judgment entered by default is properly to be ordered
opened. Id. at 93,477 A.2d at 472. Under this test, a judgment may be opened when (1) the
petition to open has been promptly filed, (2) the failure to answer can be excused, and (3) a
meritorious defense can be shown. See id. The burden of proof with respect to these
prerequisites is upon the moving party. Cf. Deloalch v. Becker, __ Pa. Super. __, 698 A.2d 94
(1997).
The notice requirements with respect to forfeiture of seized property are spelled out in
Section 6802(b) and 6802(c) of the Judicial Code? Section 6802Co) provides that a copy of the
petition for forfeiture "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." Section 6802(c) provides for service
by publication where the owner or person in possession "cannot be personally served or located
within the jurisdiction of the court .... "For purposes of this latter provision, a person is deemed
to have been unfindable in the jurisdiction when these criteria have been met:
(1) a copy of the petition is mailed to the last known
37 Act of June 30, 1988, P.L. 464, § 4, 42 Pa. C.S. § 6802(b), (c) (1997) Supp.).
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96-0442 MISCELLANEOUS
address by certified mail and is returned without
delivery;
(2) personal service is attempted once, but cannot be
made at the last known address; and
(3) a copy of the petition is left at the last known
address.
Act of June 30, 1988, P.L. 464, {} 4, 42 Pa. C.S. {} 6802(d) (1997 Supp.).
In the present case, the court is unable to agree with Petitioner that he has met his burden
of showing an adequate excuse for his failure to file a timely answer to the Commonwealth's
petition for forfeiture, based upon inadequate notice of the forfeiture proceeding. First, it appears
to the court that the Commonwealth complied fully with the statute's notice provisions. It
satisfied the prerequisites for service by publication by (a) mailing a copy of the petition by
certified mail to Petitioner's last known address, without successful delivery, (b) attempting
personal service once at Petitioner's last known address, without finding him, and (c) leaving a
copy of the petition at Petitioner's last known address. The subsequent service by publication
also strictly conformed to the statute.
Second, to the extent that Petitioner may be arguing that the statute is unconstitutional on
procedural due process grounds, it may be noted that the Pennsylvania Superior Court has
observed that "It]he Forfeiture Law insures notice to all owners and possessors of property,
provides for an opportunity to respond to the Commonwealth's forfeiture petition, both in
writing and at a heating, and sets forth the respective burdens of proof for each party."
Commonwealth v. One 1988 Ford Coupe, 393 Pa. Super. 320, 332, 574 A.2d 631,637 (1990);
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96-0442 MISCELLANEOUS
see also One 1965 Buick 4 Door Sedan v. Commonwealth, 46 Pa. Commw. 189, 408 A.2d 157
(1979). This expression of confidence in the basic adequacy of the act's notice provisions is
supported by the general rule that "[al government body is not required to make extraordinary
efforts to discover the identity and address of a person whose property interests are likely to be
significantly affected" by a taking of property. Pivirotto v. City of Pittsburgh, 5125 Pa. 246, 253,
528 A.2d 125, 129 (1987). "[R]easonable efforts" are generally sufficient. Id.; see Tracy v.
County of Chester, 507 Pa. 288, 295,489 A.2d 1334, 1338 (1985).
Furthermore, "[l]egislation enacted by the General Assembly carries a strong
presumption of constitutionality, and the party challenging the constitutionality of any statute
bears the heavy burden of demonstrating that the statute is clearly, palpably and plainly
unconstitutional." Commonwealth v. Jenner, 545 Pa. 455, 458, 681 A.2d.. 1266, 1272 (1996).
Although the legislature might have selected other methods to provide notice of forfeiture
proceedings to affected persons, the court cannot say that the scheme adopted has been shown to
be so unreasonable as to be unconstitutional.
Finally, a party who has received actual notice of a proceeding lacks standing to
challenge the constitutionality of a statute on the ground that it is procedurally deficient as to
notice. See Commonwealth v. One 1976 Ford Truck Van, 492 Pa. 541,424 A.2d. 1323 (1981).
For the foregoing reasons, the court concludes that Petitioner has not met his burden of
demonstrating an acceptable excuse, based on inadequate notice, for his failure to timely answer
12
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the Commonwealth's petition for forfeiture.38 Accordingly, the following order will be entered:
ORDER
AND NOW, this 5th day of March, 1998, after careful consideration of Petitioner's
petition to open the judgment of forfeiture, the deposition of record in this matter, and the briefs
submitted by both parties, and for the reasons stated in the accompanying opinion, Petitioner's
petition is DENIED.
BY THE COURT,
Timothy M. Doherty, Esq.
Deputy Attorney General
Office of Attorney General
16th Floor, Strawberry Square
Harrisburg, PA 17120
Attorney for the Commonwealth
William T. Tully, Esq.
MANCKE, WAGNER, HERSHEY & TULLY
2233 North Front Street
Harrisburg, PA 17110
Attorney for the Petitioner
:rlm
/s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
38 Because of the court's disposition of the case on this ground, it is not necessary to
determine whether Petitioner has met the other criteria for opening a default judgment. But see
Casting Condominium Association, Inc. v. Klein, 444 Pa. Super. 68, 76, 663 A.2d. 220, 224
(1995) (mere summary denials of wrongdoing held insufficient to show meritorious defense on
petition to open).
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