Commonwealth v. All that Certain Lot or Parcel of Land Located at 605 University Drive

DISSENTING OPINION BY

Judge McGINLEY.

I dissent to the Plurality’s conclusion that the Rules of Civil Procedure, including Summary Judgment, are not available in a civil forfeiture proceeding under the Forfeiture Act, 42 Pa.C.S. §§ 6801-6802. I object to the Plurality’s decision to overrule two decades of case law1 without fully considering the implications of its ruling.2

*1056First, I do not agree that the language of the statute mandates a hearing even when there is no disputed issue of material fact. Although the Forfeiture Act mandates that a party receive an opportunity to be heard the legislature did not intend to require an evidentiary hearing where the facts are undisputed and the only issue is one of law. In such a situation, conducting a hearing is wasteful.

An opportunity to be heard does not require the equivalent of an evidentiary hearing in every case. Where there are no disputed facts, the motion proceedings, including briefs and arguments by both parties, provide ample opportunity for the parties to be heard. See K. Davis, Administrative Law Treatise, § 12.10 at 227 (1982 Supplement); Manor v. Department of Public Welfare, 796 A.2d 1020 (Pa.Cmwlth.2002); United Healthcare Benefits Trust v. Insurance Comm’r of Pennsylvania, 152 Pa.Cmwlth. 549, 620 A.2d 81 (1993); see also Estate of Miner v. Commercial Fisheries Entry Commission, 635 P.2d 827, 834 (Alaska 1981) (no administrative hearing is required when “there would be no substantial and material issue which could be resolved at a hearing”).

The Plurality’s reliance on Article I, Section 6 of the Pennsylvania Constitution is also problematic to the extent that it suggests that a constitutional right to a jury trial will be denied if this Court were to sanction the granting of summary judgment. As in any case where summary judgment is proper, the right to proceed further to a jury trial is foreclosed. Grant v. GAF Corp., 415 Pa.Super. 137, 608 A.2d 1047 (1992), aff'd, 536 Pa. 429, 639 A.2d 1170 (1994) (per curiam). Neither the Pennsylvania nor the United States Constitutions grant an absolute right to a jury trial in a civil action. Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998) (where a plaintiff failed to establish a cause of action, the constitutional right to a jury trial is not violated when that plaintiffs suit is dismissed).

I also disagree with the Plurality’s attempt to equate an in rem civil forfeiture proceeding under the Forfeiture Act to a criminal proceeding. The plain language of the Forfeiture Act states that “the proceedings for the forfeiture or condemnation of property ... shall be in rem in which the Commonwealth shall be the Plaintiff and the property the defendant.” A civil forfeiture proceeding is an in rem action which determines the forfeitability of property. In rem actions involve the determination of the status of a thing, and the rights of persons generally with respect to that thing. See Black’s Law Dictionary, 797 (7th ed.1999). An action in rem is a type of civil action.

Although our courts have acknowledged that persons facing forfeiture are entitled to certain constitutional protections under the Fourth and Fifth Amendments, the fact remains that a forfeiture proceeding under the Forfeiture Act, although “quasi-criminal in nature,” is nevertheless in rem and is, therefore, a civil proceeding. One 1988 Toyota Corolla (Blue Two-Door Sedan) Pa. License TPV 291, 675 A.2d 1290 (Pa.Cmwlth.1996). The cases cited by the Plurality do not hold that forfeiture proceedings are criminal proceedings to which there is an unconditional right to a hearing. The criminal burden of proof *1057“beyond a reasonable doubt” is not applied. Commonwealth v. Landy, 240 Pa.Super. 458, 362 A.2d 999 (1976). There is no constitutional right to the appointment of counsel because, in our Supreme Court’s words, “the property interests at stake command a lesser level of due process protection” than a criminal proceeding. Commonwealth v. $9,847.00 U.S. Currency, 550 Pa. 192, 704 A.2d 612 (1997).

I also disagree on a more basic level with the Plurality’s conclusion that a motion for summary judgment is not available in a civil forfeiture proceeding because such a proceeding is “begun by a petition.” There is caselaw which holds that the Rules of Civil Procedure are not applicable to statutory appeals, tax assessment cases, or proceedings before administrative agencies and commissions. There is no caselaw which precludes, altogether, the application of the Rules of Civil Procedure to a proceeding commenced by “petition.”

In Appeal of Borough of Churchill, 525 Pa. 80, 575 A.2d 550 (1990), our Supreme Court reaffirmed a trial court’s inherent right to employ rules for procedure and practice so long as the rules do not conflict or violate the laws of the Commonwealth or the United States. Id. at 89, 575 A.2d at 554. The Supreme Court reversed an identical attempt by this Court to take away the common pleas court’s inherent power to regulate its own practice simply because the Rules of Civil Procedure did not apply to the underlying proceeding. In that case, the trial court invited the parties to file exceptions in a statutory appeal proceeding. This Court quashed tax assessment appeals as untimely because the Civil Rules were inapplicable to statutory appeals. The Supreme Court reversed, holding that although post-trial motions under the Rules of Civil Procedure have not been incorporated by reference in statutory appeals, the trial courts, in the absence of local rules, may “invite” exceptions in matters such as statutory appeals if they choose to do so:

Since the Rules of Civil Procedure are inapplicable to statutory appeals, rules of practice and procedure did not have to be enacted in strict compliance with the provisions of Rule 239. Rather, our trial courts have had the right to enact rules and publish these to cover practice in this area of the law. Where they have not created and published such local rules, then each trial court has been vested with the full authority of the court to make rules of practice for the proper disposition of cases before them and that we have enforced those rules unless they violated the Constitution or laws of the Commonwealth or United States, or our state-wide rules. The general, inherent power of all courts to regulate their own practice, without control, on the ground of expediency, has been recognized by this court for almost one hundred and eighty years, [citations omitted], and we see no reason at this time to disturb that well-settled principle.
Permitting or refusing to accept exceptions is as much within the trial court’s discretion as is the right to ask counsel to submit a brief covering a particular question of law. No rules govern this practice, but we know that where the trial court asks for such help, the bar is quick to respond to assist the bench in disposing of the case at hand....
In this case the trial court invited the parties to file exceptions and accepted them and disposed of them, and then issued its final order. This practice was not in violation of our case law or statewide rules. Our precedents have recognized the practice of inviting exceptions in tax assessment cases, and it is interesting to note that we have never im*1058posed this step on the trial courts but have merely recognized that if they feel that such a practice is beneficial to them, who are we to interfere with the trial court’s regulation of the practice before it....

Churchill, at 89-91, 575 A.2d at 554-555.

In civil forfeiture proceedings, the Supreme Court has not specifically declared that the Rules of Civil Procedure do not apply. That does not mean, as the Plurality holds, that the common pleas court is precluded ñ’om applying rules of practice for the proper disposition of cases before it. Churchill.

Whether the Rules of Civil Procedure are applicable to civil forfeiture proceedings is not a question that turns on whether it begins by petition. The petition serves merely to bring before the common pleas court a civil in rem action for relief where it is to be heard in the same manner as any non-jury proceeding. Even though the term “petition” is used to describe how civil forfeiture proceedings begin, focusing on the “substance” of the proceedings rather than the title is the far more judicious approach.

The point of a trial or an evidentiary hearing is to determine relevant facts. However, our courts have held repeatedly that an evidentiary hearing is not required before entry of summary judgment under circumstances in which no factual issues are in dispute. United Healthcare Benefits Trust v. Ins. Comm’r of Pennsylvania, 152 Pa.Cmwlth. 549, 620 A.2d 81 (1993). This rule applies to lawsuits involving rights to real property, money, personal injuries, constitutional rights, rights that are just as important as the rights involved in civil forfeiture proceedings. Countless federal courts have held that summary judgment is appropriate in civil forfeiture actions when there is no genuine issue of material fact. See, e.g., United States v. Two Parcels of Real Property Located in Russell County, 92 F.3d 1123, 1129 (11th Cir.1996); U.S. v. $133,420.00 in U.S. Currency, 672 F.3d 629 (9th Cir.2012); United States v. $50,720, 589 F.Supp.2d 582, 584 (E.D.N.C.2008); United States v. $10,000.00 in U.S. Currency, 348 F.Supp.2d 612, 615-16 (M.D.N.C.2004). Is there any reason why it should not be applied in our State’s civil forfeiture proceedings to eliminate those cases prior to hearing where a party is unable to make out a claim or defense?

Here, the Commonwealth produced a duly recorded Deed which conveyed all interest in and title to the Property to Palazzari and no one else. Palazzari baldly claimed his mother “ran the business” and was “for all intents and purposes” the owner of the Property. He offered no writing to show that the Property was assigned, granted or surrendered to his mother. There was no legal doubt that Palazzari was the owner of the Property on this record.

Our caselaw holds that the Rules of Civil Procedure apply to forfeiture cases as long as a rule does not conflict with a specific provision of the Forfeiture Act. With respect to whether summary judgment applies to forfeiture proceedings, summary judgment is appropriate in a forfeiture case where a hearing would serve absolutely no purpose, such as where the material facts are not in dispute. Summary judgment was appropriate because Palaz-zari was the legal owner of the Property on the Deed.

Judge LEADBETTER joins in this dissent.

. These cases applied the Pennsylvania Rules of Civil Procedure to civil in rem forfeiture matters whenever doing so did: (1) not conflict with any provision of the Forfeiture Act; and (2) facilitated the orderly, fair and efficient course of proceedings and disposition of the matter. In my view, those cases provided a practical approach to disposition, keeping in mind that a civil forfeiture proceeding is much like a trial, the objective of which is to provide the parties with a full and fair opportunity to present evidence in support of their respective positions and, on that evidence, render a just disposition.

. For example, trial courts will be left without fair and efficient guidelines and procedures for the exchange of information. See Com*1056monwealth v. $8,006.00 U.S. Currency Seized from Carter, 166 Pa.Cmwlth. 251, 646 A.2d 621 (1994) (holding discovery rules apply to civil forfeiture proceedings). Trial Courts will be left without guidance as to what constitutes proper service by certified mail. See Commonwealth v. One 1991 Cadillac Seville Vin 1G6CD53B9M4342561, 853 A.2d 1093 (Pa.Cmwlth.2004) (holding Rules of Civil Procedure are appropriate in determining what constitutes proper service by certified mail).