Commonwealth v. Neighbor's First Federal Credit Union Check in the Amount of $76,389.27 $1,659.00 U.S. Currency

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. :
:
Neighbor’s First Federal Credit Union :
Check in the Amount of $76,389.27; :
$1,659.00 US Currency; Ruger :
Superhawk .44 Magnum, S/N 82-85672; :
Remington 788, S/N 6004206; Intratec :
Tec 9 W/Magazine, S/N B6404558; :
Winchester 9422, S/N F380992; Mak-90 :
Sporter W/High Capacity Drum :
Magazine, S/N 9345534 and Flite :
King 20 Gauge, S/N K-200 :
: No. 97 C.D. 2015
Appeal of: Stephen Shifler : Submitted: January 29, 2016
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION BY
SENIOR JUDGE PELLEGRINI FILED:
Stephen Shifler (Shifler) appeals an order of the Court of Common
Pleas of the 39th Judicial District of Pennsylvania—Franklin County Branch (trial
court) denying his emergency motion to vacate the default judgment entered
against him which ordered condemnation and forfeiture of certain property seized
from Shifler’s residence during the execution of a search warrant pertaining to his
alleged unlawful distribution of marijuana. For the reasons that follow, we reverse
the trial court’s order and remand this matter for further proceedings.
I.
On January 11, 2013, the Commonwealth executed a search warrant
on Shifler’s residence during which it seized $1,659.00 in United States currency,
seven firearms,1 and a statement from Neighbor’s First Federal Credit Union
indicating that Shifler’s account had in excess of $70,000.00. Five days later, the
Commonwealth seized $76,389.27 from his bank account pursuant to a search
warrant.
On March 18, 2013, pursuant to Section 6801(a) of the Controlled
Substances Forfeiture Act (Act),2 the Commonwealth filed a petition for forfeiture
and condemnation, containing the following notice:
1
The firearms include the following: a Ruger Superhawk .44 Magnum, S/N 82-85672;
Remington 788, S/N 6004206; Intratec Tec 9 W/Magazine, S/N B6404558; Winchester 9422,
S/N F380992; Mak-90 Sporter with high capacity drum magazine, S/N 9345534; and Flite King
20 Gauge, S/N K-200.
2
Section 6801(a) of the Forfeiture Act provides, in pertinent part:
(a) Forfeitures generally.--The following shall be subject to
forfeiture to the Commonwealth and no property right shall exist in
them:
***
(6) (i) All of the following:
(A) Money, negotiable instruments, securities or
other things of value furnished or intended to be furnished by any
person in exchange for a controlled substance in violation of The
Controlled Substance, Drug, Device and Cosmetic Act, [Act of
April 14, 1972, P.L. 233, as amended, 35 P.S. 780-101–780-144,]
and all proceeds traceable to such an exchange.
(Footnote continued on next page…)
2
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.
(Reproduced Record [R.R.] at 22a.)
(continued…)
(B) Money, negotiable instruments, securities or
other things of value used or intended to be used to facilitate any
violation of The Controlled Substance, Drug, Device and Cosmetic
Act.
***
(7) Any firearms, including, but not limited to, rifles,
shotguns, pistols, revolvers, machine guns, zip guns or any type of
prohibited offensive weapon, as that term is defined in 18 Pa.C.S.
(relating to crimes and offenses), which are used or intended for
use to facilitate a violation of The Controlled Substance, Drug,
Device and Cosmetic Act. Such operable firearms as are found in
close proximity to illegally possessed controlled substances shall
be rebuttably presumed to be used or intended for use to facilitate a
violation of The Controlled Substance, Drug, Device and Cosmetic
Act. All weapons forfeited under this section shall be immediately
destroyed by the receiving law enforcement agency.
42 Pa. C.S. §6801(a).
3
The petition stated that on December 19, 2012, a confidential
informant purchased a quarter pound of marijuana from Laura Hade (Hade) for
$800.00 in official funds. Specifically, it averred that Hade drove the confidential
informant to Shifler’s residence, went into the residence with the informant’s
money while the informant waited in the vehicle, quickly returned to the vehicle,
and handed the informant the marijuana. Additionally, it averred that on January
9, 2013, a confidential informant again purchased a quarter pound of marijuana
from Hade in exchange for $800.00 in official funds. The same process ensued
and resulted in the delivery of marijuana from Shifler’s residence to the
confidential informant.
With regard to the bank account proceeds seized, the petition provided
the following description:
2. The defendant/property, Neighbor’s First Federal
Credit Union Check in the amount of $76,389.27…was
seized by the Commonwealth, pursuant to the “Act.”
3a. The defendant/property, Neighbor’s First Federal
Credit Union Check in the amount of $76,389.27, was
seized at or about 11:45 AM on or about Wednesday,
January 16, 2013.
***
4a. The defendant/property, Neighbor’s First Federal
Credit Union Check in the amount of $76,389.27, was
seized at Neighbor’s First Federal Credit Union, 127 CV
Avenue, Waynesboro, Franklin County, Pennsylvania.
***
4
5. The owner of the defendant property, Neighbor’s First
Federal Credit Union Check in the amount of
$76,389.27…based upon all information currently
available, is Stephen Shifler, 7946 Monn Road,
Waynesboro, Franklin County, Pennsylvania.
6. At the time of seizure, on the date and at the place of
seizure, hereinbefore mentioned, the defendant/property,
Neighbor’s First Federal Credit Union Check in the
amount of $76,389.27…was in the possession of Stephen
Shifler, 7946 Monn Road, Waynesboro, Franklin County,
Pennsylvania.
***
7d. On January 11, 2013, a search warrant was executed
at 7946 Monn Road. Shifler was in the residence at the
time the warrant was served, Shifler attempted to exit the
residence through a rear bedroom window with a bag of
marijuana. Shifler was stopped by officers and taken into
custody. Seized from his residence were the following
items: two (2) to three (3) pounds of marijuana, a scale,
packaging material…. Also seized was a bank statement
from Neighbor’s First Federal Credit Union indicating
Shifler's account had an excess of $70,000.00.
e. On January 16, 2013, a search warrant was served on
Neighbor’s First Federal Credit Union for Shifler’s
accounts with that banking institution.
8. The defendant/property, $76,389.27…was furnished
or intended to be furnished by any person in exchange for
a controlled substance, in violation of the Controlled
Substance, Drug, Device and Cosmetic Act, or, are
proceeds traceable to such an exchange, or were used or
intended to be used to facilitate any violation of said Act,
or are otherwise subject to forfeiture under the “Act.”
(R.R. at 23a–27a.)
5
On March 20, 2013, the trial court issued a rule to show cause upon
Shifler, specifically stating “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.” (Id. at 29a.)
The forfeiture petition and the rule to show cause were not served upon Shifler
until over a year later—on June 10, 2014—when the Commonwealth personally
served him with the rule, with the forfeiture petition attached.
After Shifler failed to respond to the petition, on July 22, 2014, the
Commonwealth filed a motion for order of forfeiture attaching an affidavit in
which a Senior Deputy Attorney General stated that Shifler was personally served
on June 10, 2014.3 By order filed on July 30, 2014, the trial court ordered that the
subject property be forfeited to the Office of the Attorney General.
The next day, on August 1, 2014, Shifler filed an answer to the
petition and a counterclaim, denying that the subject property was subject to the
Forfeiture Act, asserting that “[t]he alleged illegal activities giving rise to the
Commonwealth’s forfeiture action at the above-captioned docket are the exact
same allegations which gave rise” to another forfeiture action involving Shifler’s
real property which was previously filed at Docket No. CP-28-MD-152-2013,4 and
claiming that the Commonwealth’s delay in bringing the instant action pertaining
3
The motion was served upon Shifler and his counsel.
4
After Shifler filed an answer and new matter at that docket number, the Commonwealth
withdrew its petition.
6
to his personal property violated Section 6802(b) of the Forfeiture Act.5 (R.R. at
65a66a.) On August 8, 2014, he filed an emergency motion to set aside order of
forfeiture (emergency motion) on the bases that: (1) the order violated Shifler’s
due process rights because he was denied a hearing and an opportunity to be heard
before his property was forfeited; (2) the Commonwealth did not effectuate proper
service under the Pennsylvania Rules of Civil Procedure because Shifler was
served with process, if at all, more than 30 days after the Commonwealth filed its
forfeiture petition; (3) the petition did not properly describe the property it
intended to forfeit; and (4) the Commonwealth sought forfeiture in bad faith.
5
Section 6802(b) of the Forfeiture Act pertains to the procedure to follow with respect to
seized property and provides:
(b) Notice to property owners.--A copy of the petition required
under subsection (a) shall be served personally or by certified mail
on the owner or upon the person or persons in possession at the
time of the seizure. The copy shall have endorsed 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 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.
The notice shall be signed by the Attorney General, Deputy
Attorney General, district attorney, deputy district attorney or
assistant district attorney.
42 Pa. C.S. §6802(b).
7
In response, the Commonwealth submitted a letter dated December
11, 2013, which Senior Deputy Attorney General Stewart sent to Joseph D.
Caraciolo, Shifler’s counsel, directing counsel’s attention to Docket No. CP-28-
MD-152-2013 and requesting that he review the proposed stipulation and
agreement (stipulation) which was attached. The proposed stipulation identified
the seized property which is the subject of this action and the date on which it was
seized, acknowledged that the property was subject to the Forfeiture Act, waived
Shifler’s right to a hearing, and agreed to discontinue the Lis Pendens action filed
against the real property situated at 7946 Monn Drive, Waynesboro, Pennsylvania,
which was the subject of the previously filed action. The proposed stipulation was
not returned or further discussed amongst counsel.
Ultimately, the trial court denied Shifler’s emergency motion.
Treating it as a petition to open a default judgment, the trial court reasoned that
although the petition was promptly filed, Shifler offered no reasonable explanation
for his failure to respond to the forfeiture petition because the stipulation regarding
the case was sent to Shifler and his counsel in December 2013 alerting them to its
existence, and Shifler was personally served with the petition on June 10, 2014.
Regarding a meritorious defense, the trial court noted:
[i]n neither his Answer to [the Commonwealth]’s Motion
for Order of Forfeiture and Counter-Claim, nor in his
Emergency Motion, does Shifler contend that the seizure
was unlawful or that the property is not subject to
forfeiture under the Act. That is, Shifler does not argue
that he is entitled to relief on the merits. Rather, he
identifies purported procedural defects in the filings.
8
(11/19/14 Trial Court Opinion, at 3.) Nonetheless, with respect to the alleged
procedural defects, the trial court determined that the Pennsylvania Rules of Civil
Procedure did not apply to forfeiture actions, the forfeiture petition sufficiently
described the seized property, and the Commonwealth did not act in bad faith or
otherwise violate Shifler’s due process rights.
On the same date that the trial court issued its order, our Supreme
Court rendered its decision in Commonwealth v. All that Certain Lot or Parcel of
Land Located at 605 University Drive, 104 A.3d 411 (Pa. 2014), a case upon
which Shifler relied on in his statement of errors complained of on appeal and in
the instant appeal. In that case, our Supreme Court held that although the
Forfeiture Act provides for a hearing if a property owner asserts a claim that the
property cannot be forfeited, 42 Pa. C.S. §6802(i), a hearing was not necessary
because the procedure set forth in the Forfeiture Act was supplemented by the
Rules of Civil Procedure. In so holding, it stated:
[T]he Rules [of Civil Procedure] apply to compensate for
the procedural gaps in the Forfeiture Act and to facilitate
the orderly, fair, and efficient course of proceedings and
disposition of the matter. In such circumstances,
applying the Rules of Civil Procedure to forfeiture
proceedings will provide guidance and regulate practice,
supplying a fair and efficient methodology for resolution
of any procedural issue that arises and is not addressed
by the Forfeiture Act itself.
605 University Drive, 104 A.3d at 427.
9
In response, the trial court issued an opinion pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a), explaining that even if the Rules of Civil
Procedure were applied to Shifler’s forfeiture action as per 605 University Drive,
the same outcome resulted. Although the trial court agreed with Shifler that in
light of 605 University Drive, the Commonwealth failed to serve original process
of its forfeiture petition within the requisite 30 days under the Pennsylvania Rules
of Civil Procedure, it emphasized that it has discretion to overlook late service
where no prejudice results and that, in this instance, Shifler failed to allege
prejudice. Further, it rejected Shifler’s contention that under Pennsylvania Rule of
Civil Procedure No. 237.1, the Commonwealth was required to provide Shifler ten
days’ notice before seeking a default judgment. It so found that 42 Pa. C.S.
§6802(b) creates a procedure for default specific to forfeiture actions and does not
require the Commonwealth to file any procedural prerequisites before the court is
authorized to enter default judgment. In all other respects, the trial court relied on
its previously filed opinion.
II.
On appeal,6 Shifler contends that the trial court erred in denying his
emergency motion based upon numerous procedural deficiencies. At the outset,
6
This appeal was transferred to the Commonwealth Court from the Superior Court by per
curiam order dated January 28, 2015. We review a decision granting a forfeiture petition to
determine “whether the findings of fact made by the trial court are supported by competent
evidence and whether the trial court abused its discretion or committed an error of law.”
Commonwealth v. Marshall, 698 A.2d 576, 578 n.2 (Pa. 1997). However, “the decision whether
to open a default judgment is left to the sound discretion of the trial court, and absent an error of
law or a clear manifest abuse of discretion, the trial court’s decision will not be disturbed on
appeal.” Comyn v. Southeastern Pennsylvania Transportation Authority, 594 A.2d 857, 858 (Pa.
Cmwlth. 1991).
10
while the trial court construed Shifler’s emergency motion as a motion to open
judgment,7 because it is based on his contention that the petition for forfeiture was
improperly filed, his emergency motion should be construed as a motion to strike
judgment. That is so because, while the former seeks to reopen the case to allow a
defendant to assert a meritorious defense, the latter “is the remedy sought by one
who complains of fatal irregularities appearing on the face of the record.”
Cameron v. Great Atlantic & Pacific Tea Co., 266 A.2d 715, 717 (Pa. 1970).
Because Shifler’s complaints attack the Commonwealth’s failure to adhere to
various procedural rules and do not challenge the merits of the judgment, the
motion is properly construed as a motion to strike judgment.
“The law in the Commonwealth is quite clear that a rule to strike a
judgment can be made absolute only for a defect appearing on the face of the
record.” Linett v. Linett, 254 A.2d 7, 10 (Pa. 1969) (internal quotation marks and
citation omitted). As such, this Court’s review is constrained to the contents of the
record at the time judgment was entered. Id.
A.
First, Shifler contends that the trial court erred in denying its
emergency motion because the Commonwealth violated Pennsylvania Rule of
Civil Procedure 401(a) in failing to serve its petition upon Shifler within 30 days of
7
“It is a well-established rule that in order to grant a petition to open a default judgment,
the following three criteria must be met: (1) the petition to open must be promptly filed; (2)
there must be a reasonable excuse for failure to respond; and (3) a meritorious defense must be
shown.” Comyn, 594 A.2d at 858.
11
its filing and Rule 401(b) in failing to reinstate its petition after the 30 days
expired. Shifler asserts that under 605 University Drive, these Rules of Civil
Procedure (Rules) apply because the Forfeiture Act is not specific regarding the
timeline for service of original process.
In this respect, Section 6802(b) of the Forfeiture Act provides as
follows:
(b) Notice to property owners.--A copy of the petition
required under subsection (a) shall be served personally
or by certified mail on the owner or upon the person or
persons in possession at the time of the seizure. The copy
shall have endorsed 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 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.
The notice shall be signed by the Attorney General,
Deputy Attorney General, district attorney, deputy
district attorney or assistant district attorney.
42 Pa. C.S. §6802(b).
With regard to original service of process, Pennsylvania Rule of Civil
Procedure 401(a) requires that process “be served within the Commonwealth
within thirty days after the issuance of the writ or the filing of the complaint.” Pa.
R.C.P. No. 401(a). In the event that process is not served within 30 days, “the
12
prothonotary upon praecipe and upon presentation of the original process, shall
continue its validity by reissuing the writ or reinstating the complaint.” Pa. R.C.P.
No. 401(b).
Because the Forfeiture Act makes clear that personal service or
service by certified mail is required but leaves open the timeframe in which service
must occur, we find that a “procedural gap” exists in the Forfeiture Act with
respect to which we must rely on the Rules to “regulate practice” and “supply[ ] a
fair and efficient methodology for resolution.” 605 University Drive, 104 A.3d at
42627. Indeed, Rule 401(a) does not conflict with Section 6802(b) of the
Forfeiture Act, but merely provides the necessary detail absent in the latter
provision.
Although judgment will not be stricken for de minimis errors or what
amounts to merely technical violations of the Rules, see Malakoff v. Zambar, Inc.,
288 A.2d 819, 822 (Pa. 1972) (affirming the denial of a motion to strike default
judgment where the procedural deficiency was only opposing counsel’s failure to
endorse a notice to plead), the errors alleged in this case are significant. After
filing its forfeiture petition in March 2013 and obtaining a rule to show cause in the
same month, the Commonwealth took no further action with respect to its case
until June 2014, nearly 15 months later. Although a suit is not dead merely
because original process has not been served upon a defendant within 30 days,
reinstatement is required and did not occur here.
13
B.
Next, Shifler argues that the trial court erred in denying his emergency
motion because the Commonwealth did not provide him ten days’ notice of its
intent to seek default judgment as required by Pennsylvania Rule of Civil
Procedure 237.1(a)(2), providing:
(2) No judgment of non pros for failure to file a
complaint or by default for failure to plead shall be
entered by the prothonotary unless the praecipe for entry
includes a certification that a written notice of intention
to file the praecipe was mailed or delivered
***
(ii) in the case of a judgment by default, after the
failure to plead to a complaint and at least ten days prior
to the date of the filing of the praecipe to the party
against whom judgment is to be entered and to the
party’s attorney of record, if any.
Pa. R.C.P. No. 237.1(a)(2).
The Forfeiture Act, however, does not specifically provide that a
defendant property owner be provided further notice in advance of seeking default
judgment. Rather, at the outset, property owners must be notified:
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 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.
14
Section 6802(b) of the Forfeiture Act, 42 Pa. C.S. §6802(b) (emphasis added).
The Forfeiture Act further states that after a defendant property owner
receives a petition from the Commonwealth, the forfeiture proceeding will be
deemed “contested” only upon the owner’s “filing of a claim for the property
setting forth a right of possession.” Section 6802(i) of the Forfeiture Act, 42 Pa.
C.S. §6802(i). An owner’s answer also triggers the court’s need to schedule a
hearing, except when there are no disputed questions of fact involved, making a
hearing unnecessary if either party files a motion for summary judgment pursuant
to the Rules. Id. (“[T]he case shall be deemed at issue and a time shall be fixed for
the hearing.”).
Shifler contends that Rule 237.1(a)(2) does not contradict Section
6802(b) of the Forfeiture Act but acts to supplement the Forfeiture Act by giving
the same notice that all other civil litigants receive before a default judgment is
taken against a defendant. Again, he argues that “applying the Rules of Civil
Procedure to forfeiture proceedings will provide guidance and regulate practice,
supplying a fair and efficient methodology for resolution of any procedural issue
that arises and is not addressed by the Forfeiture Act itself.” 605 University Drive,
104 A.3d at 427.
In this case, Shifler was not granted a hearing because he did not
respond to the Commonwealth’s petition, thereby rendering his case “uncontested”
for purposes of the Forfeiture Act. Moreover, he was not provided ten days’ notice
15
that the Commonwealth sought default against him.8 In this regard, we find that
the Pennsylvania Rules of Civil Procedure do apply to default judgments sought
under the Forfeiture Act, as the Forfeiture Act provides for the entry of a decree of
forfeiture but does not specify the procedure for entering the decree.
The Commonwealth disagrees, directing our attention to Section
6802(b)’s “mandatory” directive that if a property owner fails to respond to a
petition within 30 days and thereby renders that petition “contested,” default
judgment “will be entered against said property.” Section 6802(b) of the
Forfeiture Act, 42 Pa. C.S. §6802(b) (emphasis added). It points out that the Rules
of Civil Procedure differ in this respect, providing for a notice to defend, stating as
follows:
You have been sued in court. If you wish to defend
against the claims set forth in the following pages, you
must take action within twenty (20) days after this
complaint and notice are served, by entering a written
appearance personally or by attorney and filing in writing
with the court your defenses or objections to the claims
set forth against you. You are warned that if you fail to
do so the case may proceed without you and a judgment
may be entered against you by the court without further
notice for any money claimed in the complaint or for any
other claim or relief requested by the plaintiff. You may
lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR
8
This is not to suggest that Shifler was unaware that the Commonwealth sought default
judgment. The certificate of service on the Commonwealth’s motion for default judgment
indicates that the same was served upon Shifler and his counsel, and they have not claimed
otherwise.
16
LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW. THIS OFFICE CAN PROVIDE
YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER,
THIS OFFICE MAY BE ABLE TO PROVIDE YOU
WITH INFORMATION ABOUT AGENCIES THAT
MAY OFFER LEGAL SERVICES TO ELIGIBLE
PERSONS AT A REDUCED FEE OR NO FEE.
Pa. R.C.P. No. 1018.1(b) (emphasis added).
The Commonwealth reasons then that because the Forfeiture Act
contains a mandatory provision regarding default and the Rules of Civil Procedure
provide a permissive rule, and that conflict exists with regard to the specific
procedure to apply, thereby taking defaults in forfeiture proceedings outside the
ambit of the Rules. See 605 University Drive, 104 A.3d at 428. (“[T]he civil nature
of the proceeding brings forfeiture squarely within the ambit of the Rules when
there is no conflict with the specific procedure of the Forfeiture Act,
notwithstanding the technical differences between a complaint and petition.”). We
disagree.
First, our Supreme Court, in 605 University Drive, found that a
hearing was not required by Section 6802(i) of the Forfeiture Act where a property
owner fails to file a claim setting forth his right to possession because the Rules of
Civil Procedure apply to forfeiture proceedings unless the application frustrates the
Forfeiture Act’s statutory scheme. See 42 Pa. C.S. §6802(i). (“Upon the filing of a
claim for the property setting forth a right of possession, the case shall be deemed
17
at issue and a time shall be fixed for a hearing.”). Providing the due process
protections set forth regarding all other civil litigation does not interfere with that
scheme.
Second, Section 6802(b) of the Forfeiture Act does not contain a
mandatory provision that renders it contrary to Rule 1018.1(b) as the
Commonwealth contends. In In re Supervisor of Nether Providence Township, the
provision at issue read, “any officer or officers failing to give the security required
by the first section of this act within one month after his election, then his or their
offices shall be declared vacant, and the court of quarter sessions shall appoint one
or more who shall hold his or their office till the next election.” 64 A. 443, 444
(Pa. 1906). That statute was previously interpreted by our Supreme Court to
require judicial action to declare the office vacant after 30 days as opposed to the
failure to file a bond ipso facto ousting one from office. In In re Supervisor of
Nether Providence Township, a supervisor failed to provide the required security
within 30 days, and citizens filed a petition claiming that the court was required to
remove him as per the mandatory language of the provision.
Our Supreme Court disagreed, explaining that it is a settled point that:
notwithstanding the use of [an] imperative…[t]he word
“shall,” when used by the Legislature to a court, is
usually a grant of authority, and means “may,” and even
if it is intended to be mandatory it must be subject to the
necessary limitation that a proper case has been made out
for the exercise of the power….. Where the words are
affirmative and relate to the manner in which power or
jurisdiction vested in a public officer or body is to be
exercised, and not to the limits of the power or
18
jurisdiction itself they will, in general, be so construed
(as directory).
Id. (internal citations omitted); see also In re Nomination Papers of American
Labor Party, 44 A.2d 48, 50 (Pa. 1945) (“Clearly the legislature intended all
provisions of Section 977 [of the Pennsylvania Election Code, Act of June 3, 1937,
P.L. 1333, as amended, 25 P.S. §2937,] to be mandatory. It could not, however,
constitutionally impose upon the courts mandatory duties pertaining to the exercise
of the judicial function…. As applied to all others, the provisions are
mandatory.”); Tyler v. King, 496 A.2d 16, 20 (Pa. Super. 1985) (“[W]here a
statute’s mandatory language pertains to the action of a court, it is usually a grant
of authority…. The statute at issue here clearly concerns the power of the court, by
presuming to oblige the court to call specified witnesses. It therefore can be
construed on this basis alone as merely granting the court the authority to do so.”).
Here, Section 6802(b) of the Forfeiture Act does not implicate the trial
court’s jurisdiction; rather, it only authorizes it to carry out discretionary acts—in
this instance, to grant default judgment where appropriate. Because Rule
1018.1(b) fills the gap of Section 6802(b) regarding the procedure to be followed
in seeking default judgments in forfeiture proceedings, and because the two
provisions may be construed together without contradiction, we find that Rule
1018.1(b) applies in this context as per the Supreme Court’s ruling in 605
University Drive.
Further, where notice of a party’s intent to seek default is not made
clear in a separate writing, it is appropriate to strike the default judgment. See A.B.
19
& F. Contracting Corporation v. Matthews Coal Co., 166 A.2d 317, 321 (Pa.
Super. 1960) (affirming an order striking a default judgment where the affidavit of
default accompanying the confession of judgment did not allege that the defendant
has been provided ten days’ notice as agreed by the parties).9 Therefore, we find
the Commonwealth’s violation of Rule 237.1(a)(2)(ii) an independent ground
necessitating that the trial court’s order denying the emergency motion to strike off
judgment be reversed.10
Accordingly, because the record reveals fatal procedural deficiencies
in the form of the Commonwealth’s failure to comply with Rule 401(a) and (b) and
Rule 237.1(a)(2)(ii), the trial court’s order entering default judgment against
Shifler is stricken, and this matter is remanded for further proceedings consistent
with this opinion.
DAN PELLEGRINI, Senior Judge
Judge Brobson dissents to Part II. B only.
9
In A.B. & F. Contracting Corporation, the ten-day notice requirement derived from an
agreement of the parties rather than from a Rule, as Rule 237.1(a)(2)(ii) was not adopted until
1979. Regardless, the effect is the same: a party was deprived of the procedural notice to which
it was entitled.
10
Because we reverse the trial court’s denial of Shifler’s emergency motion to strike
judgment and remand the matter to the trial court, we need not address Shifler’s argument that
the proceeds of his bank account should not have been forfeited because they were not properly
identified in the Commonwealth’s petition insofar as it failed to reference a check number,
intended recipient, date of check, or account number from which the check was drawn or into
which it was deposited.
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. :
:
Neighbor’s First Federal Credit Union :
Check in the Amount of $76,389.27; :
$1,659.00 US Currency; Ruger :
Superhawk .44 Magnum, S/N 82-85672; :
Remington 788, S/N 6004206; Intratec :
Tec 9 W/Magazine, S/N B6404558; :
Winchester 9422, S/N F380992; Mak-90 :
Sporter W/High Capacity Drum :
Magazine, S/N 9345534 and Flite :
King 20 Gauge, S/N K-200 :
:
Appeal of: Stephen Shifler : No. 97 C.D. 2015
ORDER
AND NOW, this 26th day of February, 2016, the order of the Court of
Common Pleas of the 39th Judicial District of Pennsylvania—Franklin County
Branch denying Stephen Shifler’s emergency motion to strike judgment in the
above-referenced matter is hereby reversed, and this matter is remanded for further
proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
DAN PELLEGRINI, Senior Judge