Civil Forfeiture; Common Law Forfeiture

Commonwealth v Irland, 153 A.3d 469 (Pa. Cmwlth. 2017), 32 MAP 2017


Does the doctrine of common law forfeiture exist in Pennsylvania or is any legal basis to allow the Commonwealth to forfeit property with a “nexus” to a crime  or is it purely statutory?


Following an incident where Irland displayed his handgun to a tailgating driver, the police confiscated Irland’s handgun and charged Irland with simple assault, harassment, and disorderly conduct as a third degree misdemeanor and as a summary offense. Irland entered a guilty plea to disorderly conduct as a summary offense and moved for return of the handgun used in the conduct. The Commonwealth moved for forfeiture and destruction of the handgun based on a theory of common law forfeiture.

Irland argued that there was no such thing as common law forfeiture in Pennsylvania and that property could only be forfeited pursuant to a statute.

In support of its finding that “there is no doubt” that Pennsylvania courts recognize a common law theory of forfeiture, the trial court cited the Commonwealth Court’s decision in Commonwealth v. One 2001 Toyota Camry, 894 A.2d 207 (Pa. Cmwlth. 2006) (en banc), and Superior Court decisions in Commonwealth v. Salamone, 897 A.2d 1209 (Pa. Super. 2006), and Commonwealth v. Crosby, 390 Pa.Super. 140, 568 A.2d 233 (1990). Slip Op., at 3. The trial court concluded that there is no qualitative difference between a felony conviction and a summary offense conviction for purposes of civil forfeiture – the Commonwealth only needed to show a substantial nexus between the crime committed and the object to be forfeited in line with its theory of common law forfeiture. The trial court also rejected Irland’s argument that the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa.C.S. § 6801, is a comprehensive legislative scheme that provides the exclusive authority for forfeiture actions, therefore prohibiting common law forfeiture.  The trial court granted the Commonwealth’s motion for forfeiture and ordered destruction of the handgun. Irland appealed.

On appeal, the Commonwealth Court considered “whether the doctrine of common law forfeiture exists in Pennsylvania and can serve as a legal basis to allow the Commonwealth to forfeit any property with a ‘nexus’ to a crime absent any statutory authority to do so.” Slip Op., at 1.

Finding the handgun was derivative contraband (“property innocent by itself, but used in the perpetration of an unlawful act”), the Commonwealth Court limited its discussion to those cases where the derivative contraband was the item sought to be forfeited in absence of statutory authority. Id., at 5.

The court noted two possibilities for common law forfeiture: deodand and for those convicted of a felony or treason.

“At common law the value of an inanimate object directly or indirectly causing the accidental death of a King’s subject was forfeited to the Crown as a deodand.” Id., at 6. However, noting that deodand never became a part of American or this Commonwealth’s common law, the court considered the other potential basis for common law forfeiture resulting from the conviction of a felony.

Under English Common Law, “a convicted felon forfeited his chattels to the Crown and his lands escheated to his lord; the convicted traitor forfeited all of his property, real and personal, to the Crown.” Id., at 8. However, similar to deodand, the concept of forfeiture upon conviction of a felony has also been rejected under American law.

Having found neither possibility for common law forfeiture adopted under American law, the court addressed the “commonly accepted and wide-spread view that ‘[s]tatutory civil forfeiture is the only type of forfeiture adopted in this country’” through an examination of state and federal cases that “show very clearly that the power to condemn or declare a forfeiture must be found in the statute.” Id., at 12-13 (citations omitted). At the same time, the Commonwealth Court acknowledged Pennsylvania Superior Court and Commonwealth Court precedent acknowledging common law forfeiture. For instance, the Superior Court cases of Petition of Maglisco, 491 A.2d 1381 (Pa. Super. 1985), Estate of Peetros by Peetros v. Cty. Detectives & Dist. Attorney’s Office, 492 A.2d 6 (Pa. Super. 1985) and Com. v. Coghe, 439 A.2d 823 (Pa. Super. 1982) have been used to endorse the premise that common law forfeiture is a viable means of forfeiture in Pennsylvania, a premise arguably supported by the Commonwealth Court in One 2001 Toyota Camry, 894 A.2d 207.

However, the court found that the Superior court “noted conflicts in its own precedent regarding whether derivative contraband can be forfeited as a matter of common law upon the criminal conviction of its owner” in Com. v. Crosby, 568 A.2d 233, 234 (Pa. Super. 1990) where the Superior Court observed:

Until the early 1980s, forfeiture cases in Pennsylvania involved statutes which authorized the forfeiture….

Despite [the] indicia that the law in Pennsylvania required statutory authority before derivative contraband could be forfeited, since 1982 there has been a series of opinions by the Superior Court which have held that there was common law authority for ordering forfeiture of derivative contraband. Significantly, however, the authorities cited in these opinions to support this proposition were cases in which there had been statutory authority for the forfeiture.

For example, in [Coghe], wherein the court upheld an order directing the forfeiture of the defendant’s $1,000 down payment on a contract to have his wife killed, the only authority cited by the Court for its proposition that “property which is contraband may be forfeited to the Commonwealth,” was the criminal statute expressly providing for forfeiture of certain items involved in drug offenses, 35 P.S. § 780–128[6] ….

Thereafter, in two decisions filed the same day, the Superior Court again found that forfeiture was authorized in the absence of any statutory authority…. Yet in Petition of Maglisco, the only Pennsylvania authorities cited to support the finding of common law forfeiture of derivative contraband were [Landy], and Coghe, both of which themselves rely on authority requiring statutory authorization for derivative contraband to be forfeitable.

In Estate of Peetros, the only authority cited to support the conclusion that derivative contraband is subject to forfeiture is Pa.R.Crim.P. 324 [now Pa.R.Crim.P. 588] which provides that when considering a petition for the return of seized property, the court may order forfeiture if it determines that the property is contraband. However, because the statute authorizing the Supreme Court to promulgate the Rules of Criminal Procedure expressly provides that the Court is not empowered to “abridge, enlarge nor modify the substantive rights of any litigant,” 42 Pa.C.S. § 1722(a)(1), unless there is some independent authority for a court to order forfeiture, Rule 324 should not be interpreted as authorizing the forfeiture because such a forfeiture would affect the substantive rights of the parties to the property being forfeited.

Slip Op., at 20. (citing Crosby, 568 A.2d at 237–38 (bold emphasis supplied)). Finding this criticism justified, the court next looked to the language in the current and former Pennsylvania constitutions:

Article 9, Section 18 of the Pennsylvania Constitution provides: “No person shall be attainted of treason or felony by the Legislature.” Pa. Const. art. IX, § 18. In 1790, Article 9, Section 19 stated: “No attainder shall work corruption of blood, nor, except during the life of the offender, forfeiture of estate to the Commonwealth. The estate of such persons as shall destroy their own lives shall descend or vest as in cases of natural death, and if any person shall be killed by casualty there shall be no forfeiture by reason thereof.” Former Pa. Const. art. IX, § 19, as amended.

Slip. Op., at 27. The court concluded its analysis by addressing the Supreme Court’s interpretation of these constitutional provisions in In Carpenter’s Estate, 32 A. 637 (Pa. 1895). In that case, the court disagreed that defendants convicted of murder and accessory to murder forfeited their right to inherit the murder victim’s estate. In so holding, that court declared:

The legislature has never imposed any penalty of corruption of blood or forfeiture of estate for the crime of murder, and therefore no such penalty has any legal existence.

Slip Op., at 28 (emphasis in original).

Therefore, based on its own independent analysis, the court concluded:

Following the natural direction of Carpenter’s Estate and the unquestioned view espoused by various courts and commentators, we conclude that there is no such thing as common law forfeiture in Pennsylvania and that an individual’s property can be forfeited only when the General Assembly enacts legislation that explicitly provides for forfeiture as a penalty for proscribed conduct. See also Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354, 357 & 361 (1985); Commonwealth ex rel. Lycett v. Ashe, 145 Pa.Super. 26, 20 A.2d 881, 883 (1941) (recognizing that the legislature has the exclusive power to pronounce which acts are crimes, to define crimes, and to fix the punishment for all crimes). In this case, it is undisputed that there was no statute authorizing the forfeiture of Irland’s handgun.  Therefore, despite the fact that Irland pled guilty to the misdemeanor crime of disorderly conduct, the trial court lacked the legal authority to order the forfeiture and destruction of Irland’s handgun.

The Supreme Court granted allocatur on the issue, as phrased by petitioner:

In this matter in which the Commonwealth Court held that the Commonwealth may not seek forfeiture absent specific statutory authority — a ruling that conflicts with both the Commonwealth Court’s prior holdings and with those of the Superior Court — and where there is now a split in coequal appellate authority — should the Court grant the Commonwealth’s petition in order to provide prompt and definitive guidance regarding the status of Common Law Forfeiture within the Commonwealth?

For more information, contact Kevin McKeon or Dennis Whitaker.