Commonwealth v. 542 Ontario Street, Bethlehem

merely com- not employer, of the venience Pennsylvania COMMONWEALTH of work: place from her

muting to or course, always it is general in a sense Of employ- interest employer’s STREET, work, if particularly some 542 ONTARIO come to ees PA, BETHLEHEM, as its job, such circumstances location, it make unattractive. duties or 18015. interest, being special far from

This circumstance, Appeal one. Freddie is a universal of: Blas. no of record There are facts Id. at 1146. Pennsylvania. Court of conclude that at the which we can upon accident, vehicle motor time of Claimant’s Argued Nov. 2009. anything other than a acting she Decided Feb. work. In the way on her commuter special circum- proof such absence

stances, to the “com- exception the fourth apply. rule does not going” respon- generally note that while

We indi-

sibility caring for sick disabled employ- in their homes is laudable

viduals

ment, from which we view perspective exception must special circumstances vantage employer’s of an busi-

be from engage in the

ness interest. We cannot required to arrive judgment of value

sort ie., that on

at the result Claimant seeks — basis, works any person who

a wholesale care aide furthers the

as a home health more than other employer of her

business travel to and from

types employees who under similar circumstances.

work discussion, foregoing we

Based the Board’s order.4

affirm

ORDER NOW, day February, 17th

AND this Compensa- the order of the Workers’ Appeal Board is affirmed.

tion however, necessary to the WCJ's le- was not 4. We note that Claimant also asserted gal the basis of basing part upon conclusions nor does it form his decision in WCJ erred appeal. any in this relating Employer of the Court’s conclusions findings to the fact that did Consequently, we need not address this as- compensate Claimant for not or reimburse signment Opinion. finding, of error any aspect of her travel costs. That Connell, Bethlehem,

James Martin for appellant. Blake, Easton,

Kristine M.L. appel- which involved surveillance and four to five lee. purchases by controlled confidential infor- mants. LEADBETTER, BEFORE: President During warrant, execution of the 2004 McGINLEY, Judge, Judge, and officers recovered 16 baggies sandwich PELLEGRINI, Judge, COHN containing cocaine from an individual in- JUBELIRER, SIMPSON, Judge, Judge, side the property, marijuana as well as and LEAVITT, BUTLER, Judge, and Judge. a digital scale with cocaine residue other parts of the property. Bias was not at the Judge OPINION BY SIMPSON. residence when the search was initiated. In this appeal from an order for forfei- Bias was not charged any with criminal estate, ture of real we face an unusual wrongdoing at that time because he al- question: where an owner of leged no knowledge of drugs para- the and acquitted drug-related charges, phernalia, and because he indicated a will- standard, what if any, should be used in ingness cooperate with law enforcement assessing subsequent whether a civil for- efforts to eliminate the drug problem in feiture impermissible constitutes an exces- neighborhood. the sive fíne? Unlike sequelae the the earlier In particular, appeals Freddie Bias from search, however, after execution of the an order of the Court Common Pleas of 2005 warrant, search police the arrested (trial court) Northampton County that Bias. Significant for current purposes, he granted petition filed the Common- charged possession of a con- wealth seeking forfeiture of certain real (cocaine), trolled substance possession with property he owned. We affirm. intent substance, to deliver a controlled conspiracy possess cocaine with intent Background

I. to deliver possession drug para- Bias was the owner of property located phernalia. Bethlehem, 542 Ontario Street in North- II. Forfeiture Petition

ampton County, Pennsylvania. Sep- On 23, 2005, On December the Common- 23, 2005, tember the Bethlehem Police exe- wealth present filed the forfeiture action. cuted a search warrant during they which The trial court issued a rule to show cause Stephen found Rodriguez, pur- whom Bias why petition for forfeiture should not portedly did not know. During the search granted. The Commonwealth served of the property, they also found controlled Bias with its petition forfeiture on October substances with a value of $180. 17, 2006, just before the start of his crimi- search warrant premised on at least nal trial. drug-related 10 complaint calls to the

Bethlehem Police regarding subject 18, 2006, On October jury property, a past history of drugs at the Bias of drag-related criminal charges. property and an investigation which in- 9, 2006, On November prelimi- Bias filed purchases cluded controlled by a confiden- nary objections action, to the forfeiture tial informant. based his assertion that the Com-

The application for the search warrant monwealth did not serve him with the noted that a similar warrant appropriate was executed notice of the forfeiture within 2, 2004, on December following citizen the required time period. On February complaints 22, subsequent 2007, and a investigation the trial court overruled the ob-

414 (1986), and that A.2d 404 503 an answer then filed jeetions. applicable Amendment Eighth action. forfeiture 14th Amendment. of the by virtue states subject petition The forfeiture Im Property v. Real Commonwealth First, trial was jury procedures. two As Known Commonly provements 2008. At 24 and on March held Phila., while time, agreed parties (2003). Also, not- trial court A.2d questions factual decide would jury recognizes ed the Commonwealth relating to whether ato as a defense Fines clause Excessive prop- real was entitled v. Common- action. Brown forfeiture forfei- of whether erty, legal question the (Pa.Cmwlth.2008). wealth, 940 A.2d 610 the Excessive violated house ture of the the States Constitu- of United Fines clause applicability the coextensive of Because court by the trial decided would be tion Pennsylvania the States United a verdict. rendered jury after the Constitutions, Pennsylvania Supreme the forfeiture, in favor of found jury The that concluded Street Spruce in (1) a nexus existed finding that specifically State’s holding of the United the drug activi- the unlawful Bias and between Bajakajian, 524 v. States Court United (2) house, house was that Bias’ ty at his 2028, 321, 141 L.Ed.2d 118 S.Ct. U.S. other than by person a possessed used or such that (1998), analysis the controlled partic- purpose for an unlawful him applied proportionality” “principle the (3) Bias analysis, that for our import ular must of a forfeiture amount and “[t]he of his to the use or consented knew of relationship bear some unlawful use. for an by house another designed forfeiture] [the the offense Second, hearing a on 334, trial court held the 118 S.Ct. 524 U.S. punish.” concerning Bias’ defense April dispro a represents If forfeiture an excessive crime, constituted that the forfeiture amount relative portional Amendment Eighth the proscribed fine unconstitutional. forfeiture is then the During States Constitution. to the United fine issue hearing on the excessive judg- orally moved for hearing, Bias that value of that the stipulation included verdict, which notwithstanding the ment $65,000. noting After house Bias’ denied.1 the trial court following the this, trial court recited the Decision III. Trial Court analy fine excessive relevant to the factors (2) conduct; (1) the the defendant’s sis: issued an hearing, the trial court After maxi compared to the imposed as penalty ap- concluding that forfeiture opinion available; the character mum noted that trial court first propriate. conduct as isolated the defendant’s Pennsylvania Section 18 Article harm from resulting the repeated; Eighth the is coextensive Constitution See charged. crime the States Constitu- Amendment of United Hendrick, 509 Pa. Street. tion, Jackson ob- preliminary in the addressed service issue that Bias filed court indicated

1. The trial ex- trial court judgment jections. opinion, the the motion for In its brief he notwithstanding any in which raised in the verdict additional issues pressly denied already challenge only that the court had issue raised and indicated the brief Also, hearing. April 11 at the addressed fines issue. the excessive the court was before again raised noted that Bias trial court violates the of his trial the forfeiture considering question, Fines clause.2 Excessive the house to the value of compared court substance of the controlled the value Preliminary Objections A. i.e., $65,000 The trial court found, to $180. argument Bias’ We first address finding that jury’s then noted overruling his the trial court erred that use to the unlawful or consented knew of ac to the forfeiture objections preliminary finding opining property, of his that the so-called Con argues tion. Bias jury did a conclusion supported (Forfei Forfeiture Act trolled Substances knowledge of had no that Bias not believe 6801-6802, Act), §§ directs 42 Pa.C.S. ture occurring conduct illegal on-going apply in the Rules of Civil Procedure within his therefore, proceedings; forfeiture reliance rejected Bias’ The trial court required comply It drug charges. acquittal his on for service in these provisions with the holdings that the Commonwealth’s noted Bias asserts that Common Rules. prem- not need to be actions do him be properly serve wealth failed See, e.g., Common on a conviction. ised filed its forfei cause the Commonwealth Street, 147 Pa. Gordon wealth 502-504 23, 2005, but on December petition ture (1992), A.2d Cmwlth. not serve him until October 2006. did (1994). 636 A.2d 626 aff'd, 535 stale, Bias asserts that such service that the nev and he notes Commonwealth of the of the value comparison As to the sought er to have Clerk Courts penalty, the trial to the maximum property as a means original process reinstate the penalty for noted that the maximum court untimely service. allegedly to correct the a con- with intent to deliver possession Further, the forfeiture argues substance, charge for which Bias trolled caption with the petition failed to contain years’ ultimately acquitted, was 10 court, the number of name of fine, $100,000 an imprisonment and/or pleading, the name of the in action and $65,000 value of higher amount than of Pa. No. 1018. violation R.C.P. rejected The trial court his acquittal that his meant argument Bias’ con- response, that could be the maximum correctly trial court over- tends that the reiter- zero. The trial court imposed regard- preliminary objections Bias’ ruled authority proposi- for the ated the above errors, pointing to caption service and conviction is not underlying tion that an the Forfeiture Act which ad- provisions of necessary proceedings. in forfeiture of forfeiture the form and service dress Forfeiture Section 6802 of the actions. Appeal

IV. Current follows: provides Act (a) procedure. proceed- Bias raises the fol General appeal, In this —The (1) for the forfeiture or condemnation ings the trial court lowing issues: whether provided of which is objec property, sale overruling preliminary in his erred (2) rem, in in service; chapter, shall be whether the for in this relating to tions shall be the not which the Commonwealth denying judgment trial court erred (3) verdict; the defendant. property and the plaintiff whether withstanding the v. 1997 Mit- scope law. Commonwealth an error of In a forfeiture this Court’s Diamante, (Pa.Cmwlth. determining whether the subishi review is limited to 2008). or committed trial court abused its discretion A be filed in the petition ply shall court of rather than those in the Rules of Civil Procedure); ... where the pleas property common Commonwealth v. One 1991 located, (Pa. oath or affirmation Seville, verified Cadillac 853 A.2d 1093 citizen, containing Cmwlth.2004) (notice of an officer or provisions of the following: apply). Forfeiture Act (1) A description property quoted provisions of the Forfeiture seized. Act and the cited case law (2) A of the time place statement position. Commonwealth’s While the For- where seized. feiture Act sets forth the manner of ser- (3) owner, if known. vice, provisions there are no relating to the

(4) The person persons posses- or timing of service. provi- Because these sion, if known. provide sions a framework that ensures allegation An owner, sufficient notice to an we discern no subject pursuant to forfeiture to section error on the of the trial court 6801(a) 6801.1(a) or and an averment of overruling Bias’ preliminary objections. material facts which the forfeiture especially This is true in the absence of action is based. allegations proof prejudice to Bias’ prayer ability A order of forfeiture to defend pe- be adjudged forfeited tition. to the Commonwealth and condemned Judgment B. Notwithstanding law, and be according ordered sold Fine Verdict/Excessive unless cause be shown contrary, (b) property Notice owners. —A next Bias contends that grounds various copy petition required of the under sub- exist to reversal of the trial court’s (a) section be shall served personally or decision. Bias asks this court to reconsid- by certified mail on the owner upon or er the factual basis for the trial court’s the person persons possession in by taking “judicial decision notice of the the time of copy seizure. The shall have rise prices of real estate in Lehigh notice, endorsed a as follows: Valley between 2003 and 2008” in order to

To the Claimant within Described reevaluate the trial court’s conclusion that Property: required You are to file an grossly forfeiture is not disproportional answer petition, to this setting forth gravity activity of the giving rise to in, your right title possession the forfeiture. Bias offers no discussion in of, said within days 30 from support of argument, consequent- hereof, you service are also ly, reject we this argument as waived. that, you notified if fail to file said Dep’t Ward v. Cmty. Affairs, 685 A.2d answer, a decree of forfeiture and con- (Pa.Cmwlth.1996). 1061 demnation will be entered said 1. Contentions §

42 Pa.C.S. 6802. The regard Commonwealth With to the merits of the trial points out that provisions these are ade- court’s conclusion that the forfeiture is not quate to inform the owner of property grossly of a disproportional, upon Bias relies potential forfeiture. See Commonwealth United States Court decision $1,800 (Pa. Currency, U.S. 679 A.2d 275 in Bajakajian. In that the Court Cmwlth.1996) (Forfeiture provisions Act’s held that a fine is excessive if it for the initiation of a forfeiture ap- disproportional action gravity of a de'fen-

417 points dant’s offense. Bias out that trons not to use drugs on the property. Pennsylvania Supreme adopted the While the case supports the Common- Bqjakajian in Spruce standard position wealth’s 5444 owner of the argues prop Street Bias that in order for property need not personally charged forfeited, erty to be it must be both an with a crime in proceed order to with a instrumentality of crime and the value of action, it does not address the the property proportional must bear some issue in the context of the Excessive Fines relationship to the culpability of the owner. clause.3

Bias also relies Brown in asserting 2. Discussion that there is no evidence him connecting underlying Citing offense this case. a. Street, Spruce he stresses the differ 5444 Civil forfeitures are the in rem (where ence between his situation he was consequence for wrongdoing prescribed by charges) of all criminal and the Perez, statute. Commonwealth v. Street, owner Spruce of 5444 pled who (Pa.Cmwlth.), denied, A.2d 778 appeal guilty to a crime and where the court J.). 954 A.2d 578 (McGinley, upmost looked to the possible sentence in Property is forfeited not as a result of the analyzing the forfeiture. conviction, through but a separate the Supreme Court remanded to proceeding, civil form quasi-criminal but the trial court to determine the value of nature, in which the agency seeking the property. Ultimately, this Court af show, property must by a preponderance firmed the trial approve court’s decision to evidence, of the a nexus possible prop forfeiture because the between the fine was $100,000. erty Hence, sought and the possessor’s illegal we concluded the forfei ac Id.; tivity. $3,222.00 ture of was not Commonwealth v. disproportion (Pa.Cmwlth. crime, al to the Currency, because U.S. 2004) (Cohn, J.); upper-most fine that impose a court could Commonwealth v. $73,671.80 $100,000. that, Cash, argues Currency because U.S. and As acquitted, he was potentially (Artello/Smith), there is no sorted Firearms 654 A.2d (Pa.Cmwlth.1995) proportional penalty J.). with which to com 93 (Pellegrini, pare the property. value of his primary importance here, Of is not “[i]t therefore, necessary, that a

Relying forfeiture be Gordon 502-504 Street, supported by an underlying criminal con Commonwealth asserts that a Perez, viction.” 941 A.2d at quoting conviction is not a necessity in seeking forfeiture. Gordon Street in Cash U.S. $259.00 Cur 502-504 (Pa.Cmwlth. rency, volved the forfeiture of a bar in which 232 n. 7 a 2004) banc) {en J.). (Leavitt, produced Indeed, raid a patrons number of in pos session of recent drugs drug case of Perez paraphernalia. presents a useful ex case, In ample. eventually drug Court re a conviction was forfeiture, versed the but did reversed on appeal prossed so on the and nolle on defense,” basis of the “innocent owner Despite be remand. underly the lack of an conviction, cause the bar owner police informed the trial court declined to problem on the pa- and warned return forfeited petitioner, to the involving There are a number of cases not raise that issue. owner,” defense of "innocent but Bias does in be used maximum should these what Given affirmed.

and this Court here, where, is as an owner analysis that an the contention cases, reject any we of not convicted acquitted and therefore a favorable an to owner entitles acquittal subject any criminal any offense and not proceed- forfeiture subsequent in a result penalty. ing. the con- test focuses on approved The supported by further is

Our conclusion explicit- It does not of the defendant. duct proof involved. burdens of different this, Considering ly require a conviction. beyond a proof is criminal burden re- earlier discussion and mindful of our however, doubt; in a for- proof reasonable between garding differences satisfy only pre- a must proceeding feiture proceed- forfeiture and civil prosecutions the evidence standard. ponderance burdens of especially the different ings, Perez; $3,222.00 Currency; U.S. as that Bias’ conduct we conclude proof, in a $73,671.30 Clearly, proof forfei- Cash. of the evi- by preponderance established to meet may be sufficient proceeding ture may be proceedings forfeiture dence may though it standard even that lesser Further, the value of Bias’ evaluated. criminal conviction. to obtain a insufficient maxi- compared against the may be house b. which was estab- penalty for conduct mum analysis an of the evidence Turning by preponderance next to lished our Su argument, proceedings. fine Bias’ excessive in the forfeiture Street Spruce preme Court felony charged with various Bias was Supreme Court States adopted United offenses, pos including conspiracy drug evaluating the issue and directed test cocaine, aas with intent to deliver sess A court proceedings. its use at his drug sales result of his facilitation the forfeiture the amount of compare must posses The maximum fine for offense. of the defendant’s gravity cocaine is with intent to deliver sion If amount of the forfeiture 13(f)(1.1) $100,000. Section Con the de gravity disproportionate Substance, Drug, Device and Cos trolled offense, it is unconstitutional. fendant’s 780-113(f)(1.1).4 Act, § A 35 P.S. metic 574 Pa. at intent to deliver conspiracy possess Further, A.2d at 402. grade degree is of the same enu- Supreme] States The [United 905(a). § Ac object crime. 18 Pa.C.S. may a court factors which merated conspiring to commit cordingly, person offense, each measure subject to a maximum that crime is limited to the conduct of which $100,000fine. imposed as com- penalty the defendant: conspiracy in a to is involved person A penalty avail- to the maximum pared if, pro- intent of a crime with the commit able; was isolated whether the violation commission, he: its moting facilitating or misbehavior; and, part pattern or of a of that one person other agrees with such crime resulting from the the harm engage in conduct more of them will or charged. attempt or an constitutes such crime which added). (emphasis crime; or

Id. to commit such or solicitation person in the to aid such other agrees challenge is to determine Our current of such crime or of or commission specifically planning what offense and generally 14, 1972, 233, as amended. April P.L. 4. Act of con- These included numerous property. such to commit attempt or solicitation

an 903(a). the As Bias purchases § trolled 18 Pa.C.S. crime. are findings that these dispute not does conspiracy a which against evil evidence, per- we supported by substantial two or more agreement is the aimed conclu- in the trial court’s ceive no error for a criminal in concert act to persons of a Bias’ violation was sion Timer, 415 v. Commonwealth purpose. of misbehavior. pattern (1992). Since A.2d 572 Pa.Super. to commit agreement formal explicit resulting or an we evaluate the harm Finally, and need proved, court, can seldom quot- a crime The trial from Bias’ conduct. partnership or be, a criminal proof of Court, not acknowledged that from the cir- extracted can be conspiracy drug trafficking society by caused to harm its activities. attend cumstances Also, found the trial court is self-evident. Davalos, heavy toll property that Bias’ exacted (Pa.Super.2001). resources, including the government from employed by the Bethle- countermeasures jury found that the civil

In this Fur- year period. a one hem Police over by a by possessed or was used Bias’ house ther, findings, relying jury’s on the civil unlawful him for an other than person resulting trial court found the harm Bias knew of significantly, purpose, widespread. from Bias’ by anoth- use of his house consented findings, These use. for an unlawful er supported by This determination forth circumstances set with the together addition, harmony it is in with record. cause and probable in the affidavits law, our as stated settled setting forth the results police reports Court: search, to are sufficient the 2005 agreement part- [Collective — determina- preponderance-of-the-evidence greater presents nership crime— occupant conspired with tion Bias than public threat to the indi- potential intent to de- possess his action both delicts. Concerted vidual result, appropriate it is As a liver. the criminal the likelihood that increases of that conduct and consider successfully attained and will be object available for penalty the maximum indi- probability that the decreases conspiracy. from their depart involved will viduals First, penalty imposed compare we association criminality. Group path the maximum by the forfeiture often, nor- if not purposes for criminal possess conspiracy penalty available attainment of possible makes mally, discern to deliver. We cocaine with intent than those which complex more ends court’s determination in the trial no error Nor is accomplish. one criminal could $65,000, house, is not value of the lim- conspiratorial group of a danger maximum disproportionate which particular end toward ited to $100,000. conspiracy, for the in crime it has embarked. Combination likely the commission makes more Bias’ violation next consider whether We original purpose crimes unrelated to misbe- pattern of a part was isolated In formed. group was for which as credi- accepted court The trial havior. sum, conspiracy danger which criminal trial at the evidence adduced ble to the substan- is not confined generates employed Police the Bethlehem indicating aim is the immediate offense which tive counter- and various resources multiple enterprise. at Bias’ activity illegal combat measures to 420 Miller, 24, 26, 469 Bias was on all four criminal 886, (1976), n. quoting Thereafter, 887 5 charges. the Court of Com- States, 770, 420 (trial

Iannelli v. United U.S. mon Pleas of Northampton County 1284, (1975). 43 court) 95 S.Ct. L.Ed.2d 616 jury conducted a trial on the forfei- analysis, light argument In of this Bias’ (1) petition. jury ture The found that: that no connects him object evidence nexus existed Property between the and crime is unpersuasive. drug activity; unlawful Property unlawfully was used or possessed by a sum,

In we discern no error in the de- Bias; person other than and Bias knew termination that forfeiture did not vio- of or person’s consented prohibition against late the unlawful excessive fines. possession use or Considering foregoing, all of the of the Property. we see no jury reason to disturb the trial determined that thought- court’s forfeiture of the patient disposition ful and Property the forfeiture was warranted.

petition. argued Bias before the trial eourt that forfeiture of Property grossly dis- ORDER proportionate to the gravity of his offense NOW, AND day this 17th of February, and, thus, was an excessive fíne. In find- 2010, the orders of the Court of Common ing that the forfeiture of property Bias’ Pleas of Northampton County which over- fine, was not an excessive the trial court preliminary objections, ruled denied a mo- compared ($65,- the value of the Property tion judgment for notwithstanding the ver- 000) to the maximum fíne for the charges dict granted the forfeiture petition are ($100,000), filed Bias despite the AFFIRMED. acquittals, and concluded that the amount of the forfeiture grossly was not dispropor- DISSENTING OPINION BY Judge tionate to the gravity of the offense. The PELLEGRINI. trial court also concluded that the viola- disagree Because I with the majority tions of law occurring on Property that a property owner may punished were pattern of a of behavior and with the forfeiture of his despite caused widespread harm. being acquitted of the underlying criminal offense without violating the Excessive On appeal, argues that the forfei- Clause, Fines I respectfully dissent. ture of his Property was an excessive fine under the United States Supreme

Freddie Court Bias is the owner of property at decision in United States v. Bethlehem, Bajakajian, 542 Ontario Street in Pennsyl- U.S. vania S.Ct. (Property). In L.Ed.2d po- Bethlehem (1998). lice the Supreme executed a search warrant on the $357,144 Court held that a forfeiture Stephen and found Rodriguez with violation of a statute that controlled substances criminalizes the valued $180. The police knowing transportation charged arrested Bias and him of more than $10,000 possession substance, of a cash out country controlled without possession reporting with intent it an deliver a con- excessive fine because substance, trolled conspiracy possession disproportionate with intent committed, to deliver a controlled sub- offense reporting mere stance, possession drug parapherna- offense. held that “[t]he touch- lia. The petition Commonwealth filed a stone of the inquiry constitutional under for forfeiture of the Property. the Excessive Fines Clause the principle

421 The amount of the for- both the proportionality. United States and Pennsylvania relationship feiture must bear some to the Supreme presupposed Courts their gravity designed of the offense that it only standards apply would when there punish.” Bajakajian, 524 U.S. at conviction, was an underlying criminal 2028. The found two consider- S.Ct. Court present which the case lacks. particularly important ations in determin- fact, In I have been able to discover First, judgments if a fine is excessive. only one case Bajakaji- nationwide since appropriate punishment belong about the us, an similar to the facts before quite Second, legislature. “any judicial possibly because of the incongru- inherent regarding determination of a ity acquittal between an in a criminal particular criminal will be inher- offense case followed a civil forfeiture of the ently imprecise.” Id. at 118 S.Ct. instrumentality of the “crime” that had added). (emphasis It is thus clear not In occurred. Galloway City of Supreme the United States Court (Miss.1999), Albany, New 735 So.2d 407 contemplated analysis apply that its would Supreme Court of Mississippi square- underlying the context of an ly held that the Excessive Fines Clause offense. Constitution, of the Mississippi which is Supreme Baja Our adopted Court identical to the Excessive Fines Clause of kajian standard Commonwealth v. Real (and the United States Constitution hence Property Improvements Commonly and Pennsylvania identical to the Constitution Street, Spruce Known as Philadel well), prohibits as the forfeiture of a vehi- (2003). PA, phia, 832 A.2d 396 cle whose owner of drug Street, Spruce Bajakajian, like involved charges. property following the seizure of a guilty plea to an underlying criminal offense. In Galloway, Galloway drove his wife in Supreme Our Court listed various factors his truck to a rendezvous with his wife’s determining to consider when whether a ex-husband, who was not paying his child fine is “the penalty imposed excessive: as support fact, Galloway’s wife. In Gallo- compared to the maximum penalty avail- way’s wife and her agreed ex-husband had able; whether the violation was isolated or pay part delinquent he would of his misbehavior; of a pattern of exchange child prescription resulting harm charged.” from the crime Galloway’s narcotics that possessed wife as 574 Pa. at 832 A.2d at However, surgery. result of a recent added). (emphasis police ex-husband was a informant and was accompanied by an undercover officer. These factors show that our they When reached their point, rendezvous only contemplated performing an vehicle, Galloway’s wife exited his entered analysis fines excessive when there was an containing vehicle her ex-husband underlying criminal conviction. When the officer, the undercover the pre- owner of the and sold forfeited was not or, here, scription medication for charged support. with a crime the child acquit- ted, All the evidence at trial there is no “maximum avail- showed that Gallo- able;” way legally, knowledge drug had no dealing there has been no “misbe-' havior”; thought merely and there is “crime.” he was driving no These his wife cases, simply are to meet factors irrelevant to such her ex-husband to receive the one, present result, as the support payment. where there is no child As a short, underlying criminal conviction. trial court Galloway’s directed verdict in a whether co-defendant, factor to determine The first wife, a who was His favor. is whether disproportionate grossly fine is jury. the acquitted was compared excessive penalty imposed the is Meanwhile, case a civil penalty available. to the maximum the crimi- stayed until had been Galloway A.2d at 402. Pa. at Galloway After ended. proceedings nal maxi- erroneously used the majority The verdict, he filed by directed was of the violation available for penalty mum in the forfeiture judgment summary statute, which is underlying the criminal Following a non- case, which was denied. $100,000, pen- maximum the determine Galloway’s trial, forfeiture of jury measure is available. The correct alty Galloway appealed to granted. truck was partic- that available to penalty maximum Mississippi, alleging of Supreme Court Here, the defendant was person. ular violations, including constitutional various avail- penalty maximum acquitted, so the Fines Clause. the Excessive a violation of him, penalty maximum like the able to Mississippi used Court criminal acquitted of available to all those whether a test to determine four-part a offenses, forfeiture of is a fine of $0. substantially iden- that is fine is excessive $65,000, house, a value of is which had his Pennsylvania test.1 It summa- tical to a maximum disproportionate grossly that “the for- by explaining rized its test available of penalty $0.2 sufficiently a must have feited the viola- illegal activity factor whether relationship to The second close the owner a impose upon pattern must not tion isolated or [and] was to his of- grossly disproportionate penalty Because the defendant misbehavior. Id. So.2d at 413. The Galloway, 735 fense.” legally it conclusive acquitted, the forfeiture of Gallo- held Court violation or misbehavior. there was no disproportionate way’s truck was occurred cannot Something that has not — thus, Fines in violation of the Excessive Finally, this pattern. have occurred in acquitted of the he was Clause—because resulting harm must consider the was not a charges and that there drug Again, Id. be- charged. from the crime truck relationship between the close acquitted, there cause defendant activity. any illegal harm “crime” from which could was no resulted, the forfeiture of the making have Galloway, it is clear In this disproportion- grossly house defendant’s dispropor- grossly that the forfeiture was ate. allegedly committed. tionate to the offense majority that the maxi- 2. Even if the is correct Specifically, are: the four factors $100,000, fac- penalty mum available was (1) and the the nexus between the offense can be met. The worst that tor still is not property's property and the extent of failed to behavior is that he said about Bias’ offense; in tire role reasonably expected in all do that could owner; (2) culpability of the the role and being preventing from used for his house possibility separating the offend- imposed activity. penalty No on remainder; ing property from the Thus, alleged criminal conduct. Bias for his whether, relevant after a review of all necessarily at “offense” is of Bias' facts, the forfeiture divests the owner level, especially possible consider- the lowest grossly property which has a value that is enormity that could Moreover, disproportionate to the crime or dis- highly imposed. it is have been culpability proportionate impose of the own- unlikely a trial court would $100,000 illegal when the value of er. fine only $180. Galloway, substances was 735 So.2d at 412. reasons, respectfully I foregoing

For

dissent. and

Judges COHN JUBELIRER join.

BUTLER ROONEY, Petitioner M.

Melissa OF PUBLIC

DEPARTMENT

WELFARE, Respondent. Pennsylvania. Rooney, pro se. petitioner, Melissa M. 13, 2009. on Briefs Nov. Submitted Whare, and Jennifer G. Asst. Counsel Feb. Decided Counsel, Warshaw, Harris- Allen C. Chief

burg, respondent. for McGINLEY, Judge, BEFORE: FLAHERTY, BUTLER, Judge, and Judge. Senior Judge BY Senior OPINION FLAHERTY. Rooney (Rooney) petitions,

Melissa M. se, final order of pro for review from the (DPW) of Public Welfare Department re- Rooney’s applications for which denied the Bu- of the decisions of consideration (Bureau) Hearings Appeals reau of Bureau dated the orders of the upheld which August July 2008 and interception of Inter- determined (IRS) tax refunds nal Revenue Service by the retained Common- properly were the amount of child applied wealth and We owed to the DPW. support arrears affirm. re- cash assistance

Rooney is a former cash assistance cipient who received during various her children herself and

Case Details

Case Name: Commonwealth v. 542 Ontario Street, Bethlehem

Court Name: Commonwealth Court of Pennsylvania

Date Published: Feb 17, 2010

Citation: 989 A.2d 411

Docket Number: 1657 C.D. 2008

Court Abbreviation: Pa. Commw. Ct.