Commonwealth v. One 1958 Plymouth Sedan ( 1964 )

Concurring Opinion by

Mr. Justice Roberts:

I concur fully with the opinion of the Court. However, I wish to add the following comment concerning the Liquor Code and its application to this case.

Section 602 of the Liquor Code, April 12, 1951, P. L. 90, 47 P.S. §6-602, provides: “(b) A copy of said petition [for forfeiture] shall be served personally on said owner if he can be found within the jurisdiction of .the court, or upon the person or persons in possession at the time of the seizure thereof. Said copy shall have endorsed thereon a notice as follows:

“ ‘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 fifteen (15) days from the service hereof; and you are also notified that if you fail tó file said, answer, a decree of forfeiture and condemnation will he entered against said . property.’ ” (Emphasis supplied.)

“(d) Upon the filing of any claim for said property, setting forth a right of possession thereof, the case shall be deemed at issue and a time fixed for the hearing thereof.”

Here, the uncontradicted fact is that the petition for forfeiture contained the notice to claimant in the precise statutory language and that no answer or claim was filed as required by the Code. Upon the .failure to file an answer, all that the Code mandates is that a forfeiture decree in rem be entered.¹ Moreover, absent the filing of a claim under subsection (d), there was no issue to be considered by the court below.²

The facts are undisputed, particularly the fact that the car was used in the illegal transportation of untaxed liquor, which may be deemed admitted on this record. In the absence of an answer to the petition or the filing of a claim of ownership pursuant to the Code, there remains only the entry of a final order of forfeiture as mandated by the Code.

1 It should be noted that, as the trial court observed, “in a companion petition, the Commonwealth sought forfeiture of the liquor and wine, which was confiscated. The petition was not opposed, and forfeiture was ordered.” No appeal was taken from that order.

2 Thus, it is suggested that the hearing below was unnecessary and contrary to the provisions of the Code.