In re McLaughlin

DEL SOLE, Judge:

We consider an appeal from an Order denying Appellant’s petitions for return of property. The property in question is a 1978 Ford Bronco which was seized by the Commonwealth incident to the arrest of one Paul Massad for possession of marijuana.

Appellant grounds this appeal on two counts of error allegedly committed by the hearing court. First, Appellant posits that the evidence presented during a hearing on the petitions was insufficient to substantiate the forfeiture. Second, it is argued that the hearing judge erred in failing to uphold Emil Massad’s bailor’s claim to the forfeited vehicle.

In the instant case, the Bronco was seized by the Commonwealth pursuant to the Forfeiture and Condemnation of Vehicles Act, 35 P.S. §§ 831.1.—831.5. Section 831.1 of the Act provides:

Any wagon, buggy, motor vehicle, water or air craft or other vehicle or conveyance in which is stored, contained *62or transported, any narcotics or drugs, the possession or transportation of which is in violation of any law of this Commonwealth, shall be forfeited to the Commonwealth____

(Emphasis supplied).

Forfeiture proceedings are civil in form, yet quasi-criminal in character. During such proceedings, it is the Commonwealth’s burden to prove by a preponderance of the evidence that the vehicle was used in the proscribed manner. The vehicle’s connection with the crime need not be proven beyond a reasonable doubt. Petition of Maglisco, 341 Pa.Super. 525, 531, 491 A.2d 1381, 1384 (1985).

The forfeiture of the Ford Bronco stems from an investigation of Paul Massad by the Montgomery County Narcotics Enforcement Team. Detective Raymond Kuter of that unit negotiated with Mr. Massad for the purchase of an unknown quantity of marijuana, (N.T., 15). On the evening of the arrest, Detective Kuter had made arrangements with Mr. Massad to meet at the Casa Maria restaurant, located in King of Prussia, to effectuate the transaction. (N.T., 16). The restaurant’s parking lot was under surveillance by members of the narcotics unit who observed Mr. Massad’s arrival in the Ford Bronco. At the time, Mr. Massad approached a black Volks wagon Rabbit, which was already parked in the lot, and conversed with one of two unidentified males of that vehicle who later joined Mr. Massad in the Bronco. Eventually, the unidentified male left the Bronco, climbed back into the Volkswagon, and exited the parking lot. (N.T., 17).

Detective Kuter later entered the Bronco and was shown a brown paper bag containing one half pound of marijuana. When asked where he viewed the marijuana, the witness related:

[w]e were sitting in the front seat. He was in the driver’s seat of his Bronco. I was in the passenger seat. And the bag was sitting between the two seats.

(N.T., 22). After viewing the marijuana, Detective Kuter went to his car and radioed for other detectives to move in and arrest Mr. Massad. The Bronco was then driven to the *63Upper Merion Police Department where it was impounded. (N.T., 23).

Throughout its opinion filed in accordance with Pa.R. App.P. 1925, the hearing court stated that the Commonwealth clearly established that the Ford Bronco was “used by Massad to store, contain or transport illegal drugs and was properly seized by the Commonwealth.” (Opinion, 10/29/86, 3). However, the hearing judge did not explicitly state which of the three actions were taken by Mr. Massad. For this reason, we deem it necessary to remand this case to the hearing judge for a hearing on the exact use of the Ford Bronco in conjunction with the attempted sale of marijuana. The hearing court is directed then to make specific findings with respect to the connection between the vehicle and Mr. Massad’s failed caper.

We take this opportunity to note that the hearing court opined that the Ford Bronco was forfeited since Mr. Massad used it as a means of storing, containing, or transporting the controlled substance. The statutory source of this conclusion is § 831.1 of the Act. After reviewing the Act in its entirety, we caution the hearing court that it improperly relied upon § 831.1 as grounds for upholding the forfeiture. Rather, § 831.1 merely sets out the reasonable bases for the confiscation of the vehicle by the Commonwealth, not whether a subsequent adjudgment of forfeiture is warranted. Section 831.3 of the Act provides the circumstances under which a vehicle may be found to have been properly forfeited to the Commonwealth:

If upon hearing it appears that any such vehicle has been used to store, possess or transport any narcotic or drug, the transportation or possession of which is unlawful, such vehicle shall be adjudged forfeited and condemned and shall be disposed of as hereinafter provided.

35 P.S. § 831.3 (Emphasis supplied).

Arguably, the difference between the “stored, contained or transported” language in § 831.1 and the “store, possess or transport” verbiage of § 831.3 is neglible. Nonetheless, our legislature in devising the Act explicitly stated that its purpose was to provide “for the forfeiture and condemna*64tion of vehicle used to store, possess or transport narcotics or drugs, the possession or transportation of which is in violation of law.” See Title of Act.

Thus, the hearing judge must decide whether or not the Ford Bronco was utilized to: store the marijuana for some future use, possess the controlled substance, or transport the marijuana. Contrary to Appellant’s interpretation of the Act, a vehicle may be adjudged forfeited by a finding that only one of these circumstances occurred.

Next, Appellant complains that a Petition by Bailor for Return of Property filed by Emil Massad should not have been dismissed by the hearing judge. Emil Massad was a party before the hearing court; however, he neither filed an appeal nor joined in Appellant’s appeal. In Goodrich v. Luzerne Apparel Manufacturing Corp., 356 Pa.Super. 148, 514 A.2d 188 (1986), we opined that the issues raised in the brief of defendants offered in support of an appeal filed by other defendants would not be considered insofar as they did not appeal separately or join in the other defendants’ appeal. Id., 356 Pa.Superior Ct. at 514 A.2d at 188, n. 1. See Pa.R.App.P. 501, 512, 902, 903. Accordingly, we shall not consider this issue.

Order affirmed in part. Case remanded for proceedings consisent with this Opinion. Jurisdiction of this court retained. Jurisdiction of this panel relinquished.

OLSZEWSKI, J., files a concurring and dissenting opinion.