Com. v. J. Irland Smith and Wesson 9MM Semi-Automatic Pistol, Serial PDW0493 , 153 A.3d 469 ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
: No. 448 C.D. 2015
v. :
: Argued: February 10, 2016
Justen Irland; Smith and Wesson :
9MM Semi-Automatic Pistol, :
Serial #PDW0493 :
:
Appeal of: Justen Irland :
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
OPINION BY
JUDGE McCULLOUGH FILED: January 13, 2017
The 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 1790,1 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.
Justen 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.
I. Background
The 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
1
Article 9, Section 18 provides: “That no person shall be attainted of treason or felony by
the Legislature.” Pa. Const. art. IX, §18. This same language has remained and continues to remain
in the Pennsylvania Constitution.
In 1790, Article 9, Section 19 stated: “That no attainder shall work corruption of blood, nor,
except during the life of the offender, forfeiture of estate to the Commonwealth. The estate of such
persons as shall destroy their own lives shall descend or vest as in cases of natural death, and if any
person shall be killed by casualty there shall be no forfeiture by reason thereof.” Former Pa. Const.
art. IX, §19, as amended. In 1967, Article 9, Section 19 was amended to delete the second
sentence.
2
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.
On 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.
On 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 forfeiture.
On May 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
3
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.
In 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 regime.
Irland then filed a timely appeal to this Court.2
II. Discussion
In the 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
2
“The grant or denial of a forfeiture petition rests within the sound discretion of the trial
court. In an appeal from a forfeiture proceeding, this Court’s review is limited to determining
whether the findings of fact are supported by substantial evidence, and whether the trial court
committed an error of law or abused its discretion.” Commonwealth v. 2010 Buick Enclave, 99
A.3d 163, 165 (Pa. Cmwlth. 2014).
4
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.
Although 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.
At the outset, this Court notes that decisional law recognizes two types
of contraband: contraband per se and derivative contraband.
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 goods.
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.
In this 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
5
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.
A. Common Law Forfeiture
In 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.
Deodand
“At 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 (1931)).
However, as this Court has recognized, “[d]eodand was never embraced
in American common law.” 2010 Buick Enclave, 99 A.3d at 167 (citing Calero-
6
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.
Nonetheless, 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 country.
7
Conviction of Felony or Treason
“The 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).
At 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
8
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.
Id.
Generally, “[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 204.
9
Statutory Forfeiture
Third, 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.
In 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) (citation omitted).
10
While 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 not return the stolen
goods to the victim. Act of September 23, 1791, §9.3 As one commentator
elucidated:
Although the colonies generally appear to have adopted
most of the English criminal law either implicitly or
through legislation, certain colonies instituted statutory
reforms designed to soften the punitive effect of the
traditional English rules relating to criminal forfeiture.
These reforms, however, were ordinarily directed at
mitigating the extent of criminal forfeiture and the offenses
for which it was a penalty . . . .
The New England colonies were the most active in their
attempts to modify the English common law by statute . . . .
It was against the background of this colonial experience
that our Constitution was drafted. The Framers were
3
This statute provided:
Wherever any person or persons shall be convicted of robbery or
burglary such person or persons shall be ordered to restore to the
lawful owner or owners the goods and chattels so stolen or to pay to
him her or them the full value thereof or of so much thereof as shall
not be restored and the forfeiture of his her or their lands and chattels
shall only extend to the residue thereof after such restitution made as
aforesaid and the owner or owners of goods and chattels stolen as
aforesaid shall have like remedy for restitution by executions issued
by the court in which the attainders shall be had as is provided by an
act of Assembly in the case of conviction of larceny[.]
Act of September 23, 1791, §9.
11
understandably bothered by the harshness of the English
system of criminal penalties, especially the impact on
innocent heirs of the corruption of the blood. They
provided in the Constitution that conviction for treason may
not result in forfeiture of property or corruption of the blood
except during the lifetime of the offender. The First
Congress followed suit shortly thereafter by banning
forfeiture and corruption of the blood altogether as penalties
for federal crimes . . . .
[U]nlike common law attainder, modern statutory criminal
forfeiture generally does not reach all of the defendant’s
property. Instead, the court’s forfeiture authority is
ordinarily limited to certain specified categories of property
that bear some connection to the offense.
Richard E. Finneran & Steven K. Luther, Criminal Forfeiture and the Sixth
Amendment: The Role of the Jury at Common Law, 35 CARDOZO L. REV. 1, 33-47
(2013).
Current “[e]xamples of statutory forfeiture laws in the Commonwealth
include the [Drug Forfeiture Act]; Section 7.1 of what is commonly referred to as the
Fireworks Law,[4] 35 P.S. §1278; and Section 601 of the Liquor Code, 47 P.S. §6-
601.” 2010 Buick Enclave, 99 A.3d at 165-66. In general, this legislation authorizes
the forfeiture of items or property that have a substantial nexus with conduct
constituting a violation of the relevant statutes.
Against this background, it should not be surprising that it is a
commonly accepted and wide-spread view that “[s]tatutory civil forfeiture is the only
type of forfeiture adopted in this country.” Hauert, supra at 167-68; accord, e.g.,
Susanne H. Bales, Note, Constitutional Law—Fifth Amendment Right to Due
Process—Civil Forfeiture Defendants and Constitutional Protection, 62 TENN. L.
4
Act of May 15, 1939, P.L. 134, added by the Act of November 30, 2004, P.L. 1598, as
amended, 35 P.S. §1278.
12
REV. 331, 336 (1995). At both the federal and state level, the case law throughout the
American jurisdictions has so held. See, e.g., United States v. Farrell, 606 F.2d 1341,
1350 (D.C. Cir. 1979); United States v. Lane Motor Co., 199 F.2d 495, 496 (10th Cir.
1952), aff’d, 344 U.S. 630 (1953); United States v. Charles D. Kaier Co., 61 F.2d
160, 162 (3d Cir. 1932); Ghisolfo v. United States, 14 F.2d 389, 390 (9th Cir. 1926)
(“These decisions show very clearly that the power to condemn or declare a forfeiture
must be found in the statute”); United States v. Brant, 684 F. Supp. 421, 424 (M.D.
N.C. 1988); Davis v. Fowler, 504 F. Supp. 502, 505 (D. Md. 1980); United States v.
Two Hundred and Sixty-Seven Twenty-Dollar Gold Pieces, 255 F. 217, 220 (W.D.
Wash. 1919); Prudential Ins. Co. v. Rice, 52 N.E.2d 624, 624 (Ind. 1944); Utah
Liquor Control Commission v. Wooras, 93 P.2d 455, 461 (Utah 1939); State v.
Alaway, 828 P.2d 591, 593 (Wash. Ct. App. 1992); State v. Anonymous, 406 A.2d 6,
8 (Conn. Super. Ct. 1979); State v. One 1960 Mercury Station Wagon, 240 A.2d 99,
104 (Conn. Cir. Ct. 1968); People ex rel. Mosk v. Barenfeld, 203 Cal. App. 2d 166,
177 (Cal. Ct. App., 2nd Dist., 1962) (“[T]he courts have no power to create and
enforce a forfeiture where there is no underlying legislative authorization.”).
For instance, in Lane Motor Co., the United States sought forfeiture of
automobiles allegedly used to transport illegal liquors. The United States Court of
Appeals for the Tenth Circuit observed that “[p]roceedings of this kind instituted by
the United States for the forfeiture of property are essentially statutory proceedings,
and they cannot be maintained unless authorized by an applicable statute.” 199 F.2d
at 496. Because the plain language of the statute at issue did not authorize the
forfeiture of the automobiles under the circumstances of the case, the court
determined that “forfeiture is not warranted.” Id. at 497.
13
In One 1960 Mercury Station Wagon, the State of Connecticut, pursuant
to statutory authority, sought forfeiture of an automobile that was used as an
instrumentality in the commission of the crime of policy playing. In assessing the
applicability of the forfeiture statute, the Circuit Court of Connecticut pronounced:
“Courts have always declared that the power to declare any forfeiture is solely
statutory.” 240 A.2d at 104. Ultimately, the court determined that forfeiture was
permissible under the statute because the State complied with the pertinent statutory
procedures; the statute authorized the forfeiture of seized property that is considered
to be a nuisance; and the State proved that the automobile was used in violation of the
criminal laws of Connecticut.
In Austin, the United States Supreme Court determined whether the
forfeiture of property pursuant to a statute could be challenged under the Excessive
Fines Clause of the Eighth Amendment.5 In engaging in background commentary on
the history of common law forfeiture, the United States Supreme Court said: “Of
England’s three kinds of forfeiture, only the third [i.e., statutory forfeiture] took hold
in the United States.” 509 U.S. at 613.
The above collage of case law establishes that there is a significant
amount of authority to support the notion that forfeiture exists in America only to the
extent that it is expressly authorized by statute.
B. Pennsylvania Case Law
Here, it is undisputed that there was no statute authorizing the forfeiture
of Irland’s handgun. Because deodand never became a part of American or this
Commonwealth’s common law, Calero-Toledo, 416 U.S. at 682; 2010 Buick
5
U.S. Const. amend. VIII.
14
Enclave, 99 A.3d at 167, the only potential basis for common law forfeiture would be
conviction of a felony, treason, or, quite possibly, some other crime. In this regard,
the Pennsylvania case law experience is somewhat unique and marked with conflict.
In the 1960s and 1970s, the Superior Court and a trial court held that
there is no common law forfeiture based upon a criminal conviction and that
forfeiture must be warranted expressly by statute. In Commonwealth v. Schilbe, 175
A.2d 539 (Pa. Super. 1961), the police confiscated a camera and accessories which
the defendant used to take obscene pictures of women. The Commonwealth filed a
petition seeking forfeiture of the photographic equipment and the pictures. The trial
court concluded that “in the absence of any statute providing for the forfeiture of a
camera and its accessories used for the purpose of taking obscene pictures, there is no
authority to do so.” Commonwealth v. Schilbe, 25 Pa. D. & C.2d 326, 330 (Berks
1961). On appeal, a unanimous panel consisting of six judges of the Superior Court
agreed, adopting the trial court’s opinion and rationale as its own. Schilbe, 175 A.2d
at 539-42 (adopting and reproducing the trial court’s opinion).
In Commonwealth v. Spisak, 69 D. & C.2d 659 (Somerset 1974), the
police arrested a defendant for carrying a pistol without a license and seized the
pistol. After the defendant pled guilty to carrying a firearm without a permit, the
Commonwealth filed a petition to forfeit the pistol. Before the trial court, the
Commonwealth conceded that there was no specific statutory or case law authority in
Pennsylvania that would permit forfeiture of the pistol and requested the trial court to
exercise the common law power to order forfeiture.
After citing the holding in Schilbe, the trial court expounded upon that
decision, discussing federal case law and secondary sources such as Corpus Juris
15
Secundum and American Jurisprudence, all of which supported the view that
forfeiture was purely a statutory matter:
Nor can we resort to the common law for a judicial
forfeiture power . . . .
In 36 Am. Jur. 2d, Forfeitures and Penalties, §15, it is
concluded that:
“The forfeiture and disabilities imposed by the early
common law on persons attainted by felony are unknown to
the laws of this country, and no consequences follow
conviction and sentence except such as are declared by law.
The ancient common-law doctrine of deodand has likewise
been rejected in the United States.” . . . .
In 37 C.J.S., Forfeitures, §5a it is asserted:
“Since forfeitures are not favored, . . . they will not be given
effect to, except by the express terms of a statute, and where
the facts which purport to require such action come clearly
and plainly within the provisions of the law.”
In King v. United States, 364 F.2d 235 (5th Cir. 1966), the
Federal government sought forfeiture of the weapons used
in the assassination of President Kennedy and the killing of
police officer Tippit while engaged in search for the
assassin. The court said, p. 235:
“It would certainly be convenient and it would tend to
hasten the termination of what must appear to many to be a
very distressful bit of litigation were we able to accept the
government’s present theory and affirm the trial court’s
judgment forfeiting the weapons to the United States as a
species of Deodands.”
The court [in King] then went on to deny the forfeiture for
failure to show a violation of the forfeiture statute.
Following that decision, the government appropriated the
same Kennedy-Tippit guns pursuant to a statute authorizing
16
acquisition for preservation of historical items, and the
owners sought compensation from the United States: King
v. United States, 292 F. Supp. 767 (D. Colo. 1968). In the
course of that opinion the court said, p. 771:
“Under the peculiar facts of this case, one would suppose
that under some principle of common law or at least natural
law or natural justice, weapons used in the commission of a
crime of this magnitude would be subject to forfeiture by
the proper authorities and, certainly, that property of this
character would not be subject to commercial traffic. It is,
therefore, somewhat astonishing to discover that there is not
any such principle and that forfeiture is a matter of statutory
regulation.”
Spisak, 69 D. & C.2d at 665-66.
Accordingly, the trial court in Spisak held that “[t]he power of
government to deprive the citizen of his property by forfeiture must rest on statute,
and cannot be found in any supposed inherent or common law judicial power.” Id. at
666.
In the 1980s, however, three-judge panels of the Superior Court issued
three major decisions, Petition of Maglisco, 491 A.2d 1381 (Pa. Super. 1985), Estate
of Peetros v. County Detectives, 492 A.2d 6 (Pa. Super. 1985), and Commonwealth v.
Coghe, 439 A.2d 823 (Pa. Super. 1982).
In Estate of Peetros, the Commonwealth sought the forfeiture of books
seized in connection with the investigation of a homicide. The Commonwealth
contended that the books were records of illegal loan-sharking operations and were
therefore contraband subject to forfeiture. On appeal, the Superior Court cited former
Pa.R.Crim.P. 324, and, in a brief statement, concluded that the books were
forfeitable: “By definition, derivative contraband is property which may be used in a
lawful manner. Yet it is still subject to forfeiture under the law because of its prior
connection with criminal activity.” 492 A.2d at 10.
17
In Coghe, the Superior Court cited a forfeiture statute and
Commonwealth v. Landy, 362 A.2d 999 (Pa. Super. 1976), and concluded:
In the instant case the $1,000 in United States currency that
the appellant paid to the person who he had hired to murder
his wife is an example of derivative contraband in that the
money itself is obviously not inherently illegal but, just as
obviously, it was used in the perpetration of an unlawful
act, namely; criminal solicitation to commit murder. Thus,
we find that the lower court correctly granted the
Commonwealth’s petition and we deny the appellant’s
outrageous attempts to have the ‘blood money’ returned to
him.
439 A.2d at 824.
In Petition of Maglisco, a wife shot her husband in the leg with a .38
caliber pistol. Upon responding to the residence, the police seized the pistol and the
Commonwealth sought forfeiture of the pistol. The Superior Court recognized its
prior holding in Schilbe, noted that “[t]here is no specific statutory provision which
would support the instant forfeiture,” but nevertheless held that there is a “common
law forfeiture of derivative contraband.” 491 A.2d at 1382-83. The Superior Court
ultimately upheld the forfeiture of the pistol, concluding that a crime was committed
with the pistol and that the pistol, therefore, was derivative contraband. Id. at 1384.
In so holding, the Superior Court stated that “[b]oth Landy [and] Coghe affirmed the
forfeiture of items involved in the perpetration of a crime without any statutory
authority for that forfeiture, thus implying, contrary to Schilbe, that ‘contraband,’
whether per se or derivative, is forfeitable without statutory authority.” Id. at 1383.
These three decisions from the Superior Court have routinely been cited
by the courts of this Commonwealth as endorsing the premise that common law
forfeiture is a viable means of forfeiture in Pennsylvania. See, e.g., One 2001 Toyota
Camry, 894 A.2d at 210; Crosby, 568 A.2d at 237-38. However, Maglisco, Estate of
18
Peetros, and Coghe have been severely criticized by a subsequent three-judge panel
of the Superior Court.
In Crosby, the Superior Court noted conflicts in its own precedent
regarding whether derivative contraband can be forfeited as a matter of common law
upon the criminal conviction of its owner. Id. at 239-40. Writing for the majority,
Judge Rowley astutely observed:
Until the early 1980s, forfeiture cases in Pennsylvania
involved statutes which authorized the forfeiture. . . .
Despite [the] indicia that the law in Pennsylvania required
statutory authority before derivative contraband could be
forfeited, since 1982 there has been a series of opinions by
the Superior Court which have held that there was common
law authority for ordering forfeiture of derivative
contraband. Significantly, however, the authorities cited
in these opinions to support this proposition were cases
in which there had been statutory authority for the
forfeiture.
For example, in [Coghe], wherein the court upheld an order
directing the forfeiture of the defendant’s $1,000 down
payment on a contract to have his wife killed, the only
authority cited by the Court for its proposition that
“property which is contraband may be forfeited to the
Commonwealth,” was the criminal statute expressly
providing for forfeiture of certain items involved in drug
offenses, 35 P.S. §780-128[6] . . . .
Thereafter, in two decisions filed the same day, the Superior
Court again found that forfeiture was authorized in the
absence of any statutory authority. . . . Yet in Petition of
Maglisco, the only Pennsylvania authorities cited to support
the finding of common law forfeiture of derivative
6
Section 28 of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14,
1972, P.L. 233, as amended, 35 P.S. §780-128, repealed by the Act of June 30, 1988, P.L. 464. The
forfeiture provision is now located at section 6801 of the Drug Forfeiture Act, 42 Pa.C.S. §6801.
19
contraband were [Landy], and Coghe, both of which
themselves rely on authority requiring statutory
authorization for derivative contraband to be
forfeitable.
In Estate of Peetros, the only authority cited to support the
conclusion that derivative contraband is subject to forfeiture
is Pa.R.Crim.P. 324 [now Pa.R.Crim.P. 588] which
provides that when considering a petition for the return of
seized property, the court may order forfeiture if it
determines that the property is contraband. However,
because the statute authorizing the Supreme Court to
promulgate the Rules of Criminal Procedure expressly
provides that the Court is not empowered to “abridge,
enlarge nor modify the substantive rights of any litigant,”
42 Pa.C.S. §1722(a)(1), unless there is some independent
authority for a court to order forfeiture, Rule 324
should not be interpreted as authorizing the forfeiture
because such a forfeiture would affect the substantive
rights of the parties to the property being forfeited.
Crosby, 568 A.2d at 237-38 (bold emphasis supplied).
Despite its apparent reluctance, the Crosby panel majority felt bound to
follow Maglisco, Estate of Peetros, and Coghe:
While this brief review of the highlights of the law of
forfeiture of derivative contraband suggests that there may
be no convincing authority to support the conclusions in
Coghe, Maglisco, and Peetros that there can be ‘common
law’ forfeiture of derivative contraband in the absence of
express statutory authority, we, as a three-judge panel of
this Court, are bound to follow these three precedents
regardless of the soundness of their logical
underpinnings . . . .
Crosby, 568 A.2d at 238.
In a dissenting opinion in Crosby, Judge Brosky expressed his concern
that the court was choosing amongst irreconcilable precedent and argued that the case
20
should be decided by the court sitting en banc. Reiterating the previous panel
decision in Schilbe, Judge Brosky opined:
[U]nder the present circumstances, the majority’s loyalty to
prior precedent takes on an appearance of selective, and
perhaps even expedient, application of stare decisis rather
than some sort of faithful and principled adherence to
it. . . . [I]n light of the conflict of authority and the
majority’s own expressed reservations on the logical and
legal underpinnings of the cases authorizing forfeiture
under the present circumstances, it is indeed rather dubious
to suggest that stare decisis requires homage be paid to the
suspect authority. It seems that the present circumstances
present one of the rare situations when departure from the
principle is not only allowable but, perhaps, advisable or
necessary; particularly when the weight of the authority, as
the majority seems to concede, contrasts with the authority
the court feels compelled to follow.
Crosby, 568 A.2d at 242 (Brosky, J., dissenting).
In rebuttal, the Crosby majority stated that Coghe, Maglisco, and Estate
of Peetros “are as much a part of the developing common law in Pennsylvania as is
Schilbe” and “it appears to us that these more recent cases evidence a changing
pattern in the law affecting common law forfeiture which must be acknowledged.”
Crosby, 568 A.2d at 238 n.1.
In Salamone, another three-judge panel of the Superior Court tried to
resurrect the doctrine of common law forfeiture as recognized by the majority in
Crosby. In doing so, the Salamone court relied on our Supreme Court’s decision in
Commonwealth v. One (1) 1984 Z-28 Camaro Coupe, 610 A.2d 36 (Pa. 1992), which
held that Article 1, Section 6 of the Pennsylvania Constitution7 vests an individual
with the right to a jury trial in a statutory forfeiture proceeding under the Forfeiture
7
Pa. Const. art. 1, §6.
21
Act. In developing the test for determining whether a jury trial was warranted, the
Supreme Court ascertained whether there was a “common law basis” for forfeiture
when our Constitution was adopted in 1790. Significantly, the Supreme Court in One
(1) 1984 Z-28 Camaro Coupe explained:
The term ‘common law basis’ does not, in the context of
this case, mean that the action originated at common law,
for even prior to 1790, forfeiture actions were of
statutory origin. See, e.g., The Judiciary Act of 1789, 1
Stat 73. Rather, ‘common law basis’ refers to the nature of
the proceeding in common law courts such as the Court of
Exchequer, but not courts of Admiralty or Chancery. Long
before the American Revolution, English Admiralty courts,
for example, heard forfeiture cases without a jury, but
where common law courts (Courts of Exchequer) had
jurisdiction to hear forfeiture cases, as in cases involving
forfeitures on land, where there is an issue as to whether the
seized goods are contraband, the cases were, according to
common law tradition heard by the court sitting with a
jury . . . .
Separate courts exercising the jurisdiction of the Court of
Exchequer were never established in the American
Colonies. Instead, that jurisdiction was absorbed by the
common law courts which entertained suits for the
forfeiture of property under English or local statutes
authorizing its condemnation. Long before the adoption
of the Constitution the common law courts in the
Colonies – and later in the states during the period of
Confederation –were exercising jurisdiction in rem in
the enforcement of forfeiture statutes.
One (1) 1984 Z-28 Camaro Coupe, 610 A.2d at 40 (citation omitted) (bold emphasis
supplied).
Based upon this passage, it is obvious that the Salamone court’s reliance
on One (1) 1984 Z-28 Camaro Coupe was misplaced, misinterpreting what the
Supreme Court meant by “common law basis” and overlooking the fact that the
22
Supreme Court was discussing the right to a jury trial in statutory forfeiture
proceedings. Therefore, Salamone cannot be construed as supporting the postulate
that common law forfeiture (absent a statute) exists in Pennsylvania and does not
revive or bolster prior Superior Court cases holding that there is common law
forfeiture.
Turning to the precedent of this Court, it should first be noted that we, as
a co-equal intermediate appellate court, are not bound by the Superior Court’s
precedents, but we may adopt the Superior Court’s reasoning where persuasive.
Wertz v. Chapman Township, 709 A.2d 428, 433 n. 8 (Pa. Cmwlth. 1998).
In Commonwealth v. Cox, 637 A.2d 757 (Pa. Cmwlth. 1994), a three-
judge panel of this Court questioned the Superior Court’s conclusion in Crosby that
common law forfeitures exists, calling that decision and its holding “dubious.” 637
A.2d at 758. Notably, we declined to decide whether to follow Crosby, resting our
decision on other grounds. Particularly, this Court held that the Commonwealth
could not attempt to obtain forfeiture after the defendant filed a motion for return of
property because the Commonwealth did not file a forfeiture petition or make an oral
motion for forfeiture. We explained that “[t]he trial court in essence granted a
forfeiture motion which did not exist.” Id. at 759.
In Commonwealth v. One 1990 Dodge Ram Van, 751 A.2d 1235 (Pa.
Cmwlth. 2000), the Commonwealth sought the forfeiture of a van owned by the
defendant, who was convicted of kidnapping and murder after stabbing the victim in
the van and using the van to discard the victim’s body. Recognizing the doubts
expressed in Cox about common law forfeiture in Pennsylvania, this Court
nonetheless relied on Crosby to hold that the van was derivative contraband subject to
23
common law forfeiture because the Commonwealth established a specific nexus
between the van and the criminal activity.
In One 2001 Toyota Camry, rendered in 2006, an en banc panel of this
Court arguably accepted the holding in Crosby that common law forfeiture exists in
the Commonwealth of Pennsylvania. See One Toyota Camry, 894 A.2d at 210-11;
see also Salamone, 897 A.2d at 1217 n.11 (interpreting One 2001 Toyota Camry as
accepting and applying the holding in Crosby).
In our most recent pronouncement on the issue, 2010 Buick Enclave, the
Commonwealth sought forfeiture of a vehicle, currency, and a pistol that were seized
in connection with a criminal investigation into a fraudulent income tax scheme. On
appeal, the defendant contended that this property was not forfeitable because he was
never convicted of a crime. This Court agreed, concluding that proof of a conviction
was a necessary prerequisite for the Commonwealth to utilize common law forfeiture.
In our discussion, we noted the distinction between statutory and common law
forfeiture but did not address whether common law forfeiture even exists because the
defendant did not raise the issue. We did, however, note the Crosby court’s criticism
of the notion of common law forfeiture. We also opened the door for a challenge to
the existence of common law forfeiture in the future:
[The appellant] does not challenge the existence of common
law forfeiture in the Commonwealth. Accordingly, that
issue is not before us. [The appellant] does, however,
contend that the common law forfeiture of his property was
improper because he was never charged with, let alone
convicted of, a crime. This is where an important
distinction between statutory forfeiture and common law
forfeiture (assuming, arguendo, it exists) arises.
24
99 A.3d at 168. Because the defendant in 2010 Buick Enclave was never convicted
of a crime, this Court ultimately concluded that the confiscated items could not be
forfeited under the theory of common law forfeiture.
III. Analysis
Upon our independent examination, we conclude that the Crosby court’s
criticism of Coghe, Maglisco, and Estate of Peetros is justified because those cases
lack authoritative support, relying solely on case law where there was a statute
specifically authorizing forfeiture and an inapplicable rule of criminal procedure.
Likewise, the Superior Court’s decision in Salamone is unpersuasive because our
Supreme Court in One (1) 1984 Z-28 Camaro Coupe did not discuss, much less
mention, common law forfeiture. Although Coghe, Maglisco, Estate of Peetros, and
Salamone may by themselves be considered to be part of the common law, the
validity and legal soundness of these decisions have been called into question, not
only by the Superior Court, but also by this Court. Accordingly, we now determine
whether there is actual authoritative support for common law forfeiture in
Pennsylvania.
In 1992, the Washington Court of Appeals surveyed the national case
law arena and concluded: “Every jurisdiction that has considered the question has
held that the power to order forfeiture is purely statutory.” Alaway, 828 P.2d at 593
(citing Farrell, 606 F.2d at 1350; Lane Motor Co., 199 F.2d at 496 (10th Cir. 1952),
aff’d, 344 U.S. 630 (1953); Ghisolfo, 14 F.2d at 390; Davis, 504 F. Supp. at 505;
Brant, 684 F. Supp. at 424; Two Hundred and Sixty-Seven Twenty-Dollar Gold
Pieces, 255 F. at 220; State v. Anonymous, 406 A.2d at 8; One 1960 Mercury Station
25
Wagon, 240 A.2d at 104; Barenfeld, 203 Cal. App. 2d at 177; Rice, 52 N.E.2d at 624;
Wooras, 93 P.2d at 461)).
The Washington Court of Appeals further observed: “Scholarly
authorities also establish that the United States has never had a common law of
forfeiture, and that since colonial times, forfeiture in this country has existed only by
virtue of statute.” Alaway, 828 P.2d at 595 (citing C. Smith, Modern Forfeiture Law
and Policy: A Proposal for Reform, 19 Wm. & Mary L. Rev. 661 (1977-1978); Jacob
Finkelstein, The Goring Ox: Some Historical Perspectives on Deodands, Forfeitures,
Wrongful Death and the Western Notion of Sovereignty, 46 Temp. L.Q. 169 (1972-
1973); O.W. Holmes, The Common Law 34-35 (1881)).
In addition, based upon our research, the secondary authorities and law
review articles appear to be in unanimous accord that common law forfeiture has
never existed in America and can only be warranted by express statutory
authorization. See, e.g., 36 Am. Jur. 2d FORFEITURES AND PENALTIES §19 (2016)
(“The right to bring a forfeiture cause exists by statute, not by virtue of the . . .
common law.”); 38 American Law Reports 4th, 515 (1991) (“In this country,
however, forfeiture exists only by virtue of statute.”); 8 Ruling Case Law, 257 (1929)
(“[T]he forfeiture and disabilities imposed by the common law on persons attainted of
felony are unknown to the laws of this country, and no consequences follow
conviction and sentence, except such as are declared by law.”); Michael Van Den
Berg, Comment, Proposing a Transactional Approach to Civil Forfeiture Reform,
163 U. PA. L. REV. 867, 874 (2015) (“Although common law forfeiture was not part
of the U.S. tradition, statutory forfeiture achieved recognition as legitimate and
played a role through the first two centuries of the republic.”); Development in State
Constitutional Law: 2000, 32 RUTGERS L.J. 1079, 1098 n. 64 (2000) (“[I]n the United
26
States there is no common law forfeiture, and therefore, all forfeiture must be
specifically authorized by statute.”); Lieske, supra at 276 (“Of the three kinds of
forfeiture recognized in the English common law, only statutory forfeiture is
recognized in the United States.”); Leslie C. Smith, Modern Forfeiture Law and
Policy: A Proposal for Reform, 19 WM. & MARY L. REV. 661, 661 (1978) (“Although
never a part of our common law, forfeiture, however, has existed by statute in the
United States since colonial days.”). In terms of forfeiture based upon conviction of a
felony or treason, this English common law tradition has largely been abolished or
greatly modified by most states’ constitutions. Hauert, supra at 167-68 & nn. 64, 72-
74.
“Like the constitutions of Virginia, New Jersey, Maryland, and most of
the original 13 Colonies, Pennsylvania’s Constitution was drafted in the midst of the
American Revolution, as the first overt expression of independence from the British
Crown.” Commonwealth v. Edmunds, 586 A.2d 887, 896 (Pa. 1991).
Article 9, Section 18 of the Pennsylvania Constitution provides: “No
person shall be attainted of treason or felony by the Legislature.” Pa. Const. art. IX,
§18. In 1790, Article 9, Section 19 stated: “No attainder shall work corruption of
blood, nor, except during the life of the offender, forfeiture of estate to the
Commonwealth. The estate of such persons as shall destroy their own lives shall
descend or vest as in cases of natural death, and if any person shall be killed by
casualty there shall be no forfeiture by reason thereof.” Former Pa. Const. art. IX,
§19, as amended.
In Carpenter’s Estate, 32 A. 637 (Pa. 1895), the defendant son was
convicted for murdering his father and the defendant mother was convicted of being
an accessory after the fact. Both defendants committed their crimes with the intent to
27
inherit the father’s estate and assigned their respective interests in the estate to
another person. The collateral kin sued, claiming that the defendants forfeited their
right to receive a share of the father’s estate. On appeal, our Supreme Court
disagreed, engaging in constitutional commentary.
We quote our High Court’s words verbatim:
The penalty for murder in the first degree in Pennsylvania is
death by hanging. No confiscation of lands or goods, and
no deprivation of the inheritable quality of blood,
constitutes any part of the penalty of this offense. The
Declaration of Rights, article 1, sec. 18, of the constitution
of the state declares that “no person shall be attainted of
treason or felony by the legislature,” and by section 19 it is
provided that, “No attainder shall work corruption of blood
nor, except during the life of the offender, forfeiture of
estate to the commonwealth. The estate of such persons as
shall destroy their own lives, shall descend or vest in cases
of natural death; and if any person shall be killed by
casualty, there shall be no forfeiture by reason thereof.”
These are provisions of the organic law which may not be
transcended by any legislation. Inasmuch as the prescribed
penalty for murder is death by hanging, Crimes Act of
1860, sec. 75, Bright. Purd. 511, pl. 232, without any
forfeiture of estate or corruption of blood, it cannot be said
that any such consequence can be lawfully attributed to any
such offense. In other words our constitution positively
prohibits any attaint of treason or felony by the legislature
and any corruption of blood by reason of attainder or any
forfeiture of estate, except during the life of the offender.
The legislature has never imposed any penalty of
corruption of blood or forfeiture of estate for the crime
of murder, and therefore no such penalty has any legal
existence.
32 A. at 637 (emphasis supplied).
Our Supreme Court in Carpenter’s Estate then cited a decision from the
North Carolina Supreme Court favorably, proclaiming that “[f]orfeitures of property
28
for crime are unknown to our law,” id. at 638 (citation omitted), and concluded that
legislative action was necessary to authorize forfeiture. Although our Supreme
Court’s decision in Carpenter’s Estate did not specifically deal with derivative
contraband, that case made clear that Article 9, Sections 18 and 19 of the
Pennsylvania Constitution of 1790 embody concepts that run counter to and conflict
with the idea of common law forfeiture. In interpreting similar language in their state
constitutions, the courts of other states have likewise concluded that their
constitutions abolished forfeiture of property rights upon conviction of a crime. See,
e.g., Weeks v. New York Life Ins. Co., 122 S.E. 586, 589-90 (S.C. 1924), accord Last
v. MSI Const. Co., 409 S.E.2d 334, 336 (S.C. 1991) (“The South Carolina
Constitution forbids the automatic forfeiture of property rights upon conviction.”);
Progressive Life Ins. Co. v. Dean, 97 S.W.2d 62, 63-64 (Ark. 1936); Fields v.
Metropolitan Life Insurance Co., 249 S.W. 798, 798 (Tenn. 1923), accord State v.
Sprunger, 458 S.W.3d 482, 493 (Tenn. 2015) (“The public policy of this state as
expressed in the state constitution opposes forfeitures for convictions of crimes unless
specifically provided for.”).
Following the natural direction of Carpenter’s Estate and the
unquestioned view espoused by various courts and commentators, we conclude that
there is no such thing as common law forfeiture in Pennsylvania and that an
individual’s property can be forfeited only when the General Assembly enacts
legislation that explicitly provides for forfeiture as a penalty for proscribed conduct.
See also Commonwealth v. Wright, 494 A.2d 354, 357 & 361 (Pa. 1985);
Commonwealth ex rel. Lycett v. Ash, 20 A.2d 881, 883 (Pa. Super. 1941) (recognizing
that the legislature has the exclusive power to pronounce which acts are crimes, to
define crimes, and to fix the punishment for all crimes). In this case, it is undisputed
29
that there was no statute authorizing the forfeiture of Irland’s handgun. Therefore,
despite the fact that Irland pled guilty to the misdemeanor crime of disorderly
conduct, the trial court lacked the legal authority to order the forfeiture and
destruction of Irland’s handgun.
Before concluding, we would be remiss if we did not note the fact that
Irland pled guilty to a misdemeanor summary offense rather than a felony. As
previously explained, at English common law, the crimes of felony and treason were
defined as such solely because the punishment imposed upon conviction was
forfeiture of the individual’s property and estate. However, unlike the crimes of
felony and treason, a misdemeanor conviction did not carry such a consequence. See
Lynch, 88 Pa. at 192-93; Blackstone, supra, at 94. Therefore, because forfeiture
based upon a misdemeanor was never recognized at English common law, we
conclude in the alternative that the Commonwealth could not seek forfeiture of
Irland’s handgun given the fact that Irland was only convicted of the summary
offense of disorderly conduct.
IV. Conclusion
This Court certainly does not condone or minimize Irland’s actions.
However, the issue before us is whether, under the common law of Pennsylvania, an
individual forfeits property to the government where the conduct has a nexus to – and
results in a guilty plea to – the summary offense of disorderly conduct, particularly
when there is no statute that explicitly authorizes forfeiture in such a situation.
Although English common law recognized forfeiture upon conviction for a felony or
treason, this concept and the broader notion of common law forfeiture was never
imported to our Commonwealth. In light of the overwhelming weight of the
30
authority and our Supreme Court’s decision in Carpenter’s Estate, we conclude that
common law forfeiture does not exist in Pennsylvania; consequently, we are
constrained to overrule our case law to the extent that it holds to the contrary on the
ground that such case law was erroneously decided. Absent a statute that specifically
authorizes the forfeiture of property, the Commonwealth had no authority to seek,
and the trial court had no authority to order, forfeiture of Irland’s property.
Accordingly, we reverse the trial court’s order and remand to the trial court with
instruction to enter an appropriate order that the property be returned to Irland.8
________________________________
PATRICIA A. McCULLOUGH, Judge
8
Due to our disposition, which effectuates full relief to Irland (return of the handgun), we
need not address Irland’s alternative argument regarding statutory displacement of common law
forfeiture.
31
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
: No. 448 C.D. 2015
v. :
:
Justen Irland; Smith and Wesson :
9MM Semi-Automatic Pistol, :
Serial #PDW0493 :
:
Appeal of: Justen Irland :
ORDER
AND NOW, this 13th day of January, 2017, the March 9, 2015 order
of the Court of Common Pleas of Adams County (trial court) is reversed. The case
is remanded to the trial court with directions to enter an appropriate order that the
handgun be returned to Justen Irland.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge