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HomeMy WebLinkAbout93-0141 MiscellaneouscoMMONWEALTH OF PENNSYLVANIA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V. : $1,800.00 U.S. CURRENCY, Defendant : NS~. 141 MISCELLANEOUS 1993 IN RE: PETITION TO STRIKE OFF AND/OR OPEN DEFAULT JUDGMENT BEFORE OLER, J. ORDER OF COURT AND NOW, this ~ day of December, 1995, after careful consideration of Claimant's Petition To Strike Off and/or Open Default Judgment, and of the Commonwealth's Answer to Petition To Strike Off and/or Open Default Judgment, and for the reasons stated in the accompanying opinion, the petition is DENIED. BY THE COURT, Letty A. Kress, Esq. Office of the Attorney General Drug Prosecution and Forfeiture Section 16th Floor, Strawberry Square Harrisburg, PA 17013 Attorney for Plaintiff Carl Owens, CB-3668 P. O. Box 200 Camp Hill, PA 17001-0200 Claimant, Pro Se COMMONWEALTH OF PENNSYLVANIA, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : : $1,800.00 U.S. CURRENCY, : Defendant : NO. 141 MISCELLANEOUS 1993 IN RE: PETITION TO STRIKE OFF AND/OR OPEN DEFAULT JUDGMENT BEFORE OLER, J. OPINION and ORDER OF COURT In this drug forfeiture case, Carl Owens (Claimant) has filed a Petition To Strike Off and/or Open Default Judgment, seeking to vacate a forfeiture order issued by this court in 1993. Claimant's petition was filed on August 15, 1995. The premise of Claimant's petition is that a defective notice accompanied the Commonwealth's original petition for forfeiture. For the reasons stated in this opinion, Claimant's petition will be denied. ~ STATEMENT OF FACTS On May 4, 1993, the Commonwealth filed a Petition for Forfeiture and Condemnation, seeking the forfeiture of $1,800.00 seized in a search at Claimant's Carlisle, Cumberland County, Pennsylvania, residence, pursuant to a search warrant. The Commonwealth's petition alleged that Claimant had on at least two prior occasions sold cocaine to agents of the Bureau of Narcotics Investigation, and that among the $1,800.00 were found bills matching previous undercover purchases of controlled substances from Claimant. A rule to show cause was issued upon Claimant in the following form: NO. 141 MISC. 1993 AND NOW, this 4th day of May, 1993, a rule is issued · upon Carl L. Owens, owner and/or possessor of the within defendant/property, to show cause why the prayer and order of the attached Petition of Forfeiture should not be granted. Rule returnable, for the purpose of filing an Answer only, within thirty (30) days from the date of service of the attached Petition upon Carl L. Owens, owner and/or possessor. Failure to Answer this Petition within 30 days of service hereof will result in an Order of Forfeiture being entered against said property, any law or rule of Court to the contrary notwithstanding. Notice shall be given in accordance with law. Accompanying the Commonwealth's petition and the rule to show cause was the following notice: NOTICE TO ANSWER PETITION FOR FORFEITURE AND CONDEMNATION TO THE CLAIMANT OF WITHIN DESCRIBED 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. No answer was filed by Claimant and upon motion of the Commonwealth filed July 15, 1993, a forfeiture order was entered on that date. Claimant now seeks to vacate that order, primarily~ on the ground that the notice did not contain information to which he was entitled as an incarcerated individual under In Re: Commonwealth, $803 Cash, 403 Pa. Super. 526, 589 A.2d 735 (1991).~ ~ Claimant's delay in filing the instant Petition to Strike Off and/or Open Default Judgment is attributed in the petition to an alleged violation of Pa. R.C.P. 236, relating to the 2 NO. 141 MISC. 1993 DISCUSSION The notice accompanying the Commonwealth's petition for forfeiture and the rule issued in response thereto was in conformity with the requirements of Section 6802(b) of the Judicial Code,2 respecting notice to property owners in drug forfeiture cases. This notice is in the nature of a notice to plead, and is unrelated to the hearing stage of a drug forfeiture action. Where the pleadings warrant the holding of a hearing, certain additional information must be provided to a claimant who is incarcerated - to facilitate his or her attendance at the hearing. In Re: Commonwealth, $803 Cash, 403 Pa. Super. 526, 589 A.2d~ 735 (1991). The rationale for, and the type of information to be provided in connection with, this extra notice requirement was given by the Superior Court as follows: Where the owner of property subject to forfeiture proceedings is incarcerated, the notice must inform him or her that proper steps will be taken to aid such person in appearing and defending if that is his or her wish.· The notice should also advise the owner as to the steps. to be taken to obtain temporary release to attend the hearing. Such additional notice has been required to be given incarcerated defendants in divorce actions, see: 5A Goodrich-Amram, Procedural Rule Service, ~1920.51:8, and an equivalent notice must be given in actions by the ~ Commonwealth to forfeit the property of an interested ~ party who is incarcerated. To require nothing more than prothonotary's duty to provide notices and copies of judgments which are entered, inter alia. In view of the court's disposition of Claimant's petition, it is unnecessary to consider the issue of the reasonableness of a two-year delay in filing it. 2 Act of June 30, 1988, P.L. 464, ~4, 42 Pa. C.S. ~6802(b) (notice to property owners). 3 NO. 141 MISC. 1993 a bare notice of the time and place of hearing is to settle for what in many cases may be a meaningless formality. Unless the incarcerated owner is made aware that arrangements can and will be made for him to be present at the hearing, a bare notice of the time and place of hearing will be of little value. Id. at 528-29, 589 A.2d 735, 736. In this case, the forfeiture action did not reach the stage at which a hearing was scheduled (or should have been scheduled3) -- a stage at which Claimant might have needed additional information to facilitate his presence in court - because Claimant did not respond to the Commonwealth's petition and the rule to show cause, even though proper notice of the consequences of such inaction was given to him. For this reason, the court is in agreement with the Commonwealth4 that the absence of the notice provided for in In Re: Commonwealth, $803 Cash, supra, does not warrant a vacation of the instant order of forfeiture,s ORDER OF COURT AND NOW, this ~n~ day of December, 1995, after careful consideration of Claimant's Petition To Strike Off and/or Open See id, 42 Pa. C.S. S6802(i) (~~o be scheduled uPon 3 filing of claim asserting right of possession). 4 See Answer to Petition To Strike Off and/or Open Default Judgment, paragraph 4(b), (c). s Claimant also notes the absence of the type of notice provided for in Pa. R.C.P. 1018.1 (notice to defend on civil complaints). This rule, however, does not by its terms apply to petitions for forfeiture, and the legislature has specifically prescribed a form of notice for forfeiture petitions. See text accompanying note 2 supra. 4 NO. 141 MISC. 1993 Default Judgment, and of the Commonwealth's Answer to Petition To Strike Off and/or Open Default Judgment, and for the reasons stated in the accompanying opinion, the petition is DENIED. BY THE COURT, J. Wesley Oler, ~r., J. Letty A. Kress, Esq. Office of the Attorney General Drug Prosecution and Forfeiture Section 16th Floor, Strawberry Square Harrisburg, PA 17013 Attorney for Plaintiff Carl Owens, CB-3668 P. O. Box 200 Camp Hill, PA 17001-0200 Claimant, Pro Se 5