Opinion
No. 20 C.D. 2012
07-18-2012
Diane Lamond, Appellant v. Commonwealth of Pennsylvania
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This matter is an appeal from orders of the Court of Common Pleas of Monroe County (the trial court) denying Diane Lamond (Lamond) a jury trial on the forfeiture of her car under the act commonly known as the Controlled Substances Forfeiture Act (the Forfeiture Act) and denying her leave to appeal nunc pro tunc to this Court. For the reasons that follow, we reverse the denial of leave to appeal and vacate and remand this matter for jury trial.
The vehicle which is the subject of this case (the car) is a 2010 Nissan Altima jointly owned by Lamond and her son, Christopher Lamond (Christopher). (Trial Court Opinion at 1.) On June 2, 2010, the Pennsylvania State Police stopped the car and seized it on the grounds that it was being used by Christopher to transport a friend to purchase an ounce of marijuana for resale. (Trial Court Opinion at 1-2; Petition for Forfeiture and Condemnation.) There is nothing in the record showing that there was any criminal prosecution for possession or distribution of drugs related to this seizure or when any criminal proceedings terminated. The only reference to any criminal proceedings in the record indicates that Christopher pleaded guilty to disorderly conduct at some unidentified date. (Lamond's Pretrial Memorandum at 3.) There is also no indication in the trial court's opinion or in the record that Lamond, as opposed to Christopher, had any knowledge of unlawful use of the car. See Brown v. Commonwealth, 940 A.2d 610, 615 (Pa. Cmwlth. 2008) (co-owner may defeat forfeiture of her interest in the property by showing that she did not know or consent to the criminal acts of the other owner and that her lack of knowledge was reasonable under the circumstances).
There is no transcript of any of the trial court proceedings or anything in the record showing the evidence before the trial court. Because the only issues in this appeal are whether Lamond was entitled to appeal nunc pro tunc and whether Lamond was entitled to a jury trial, however, the sufficiency of the evidence to support forfeiture and denial of return of property is not before us, and such items are therefore not necessary to the consideration this appeal.
On July 13, 2010, Lamond, represented by attorney Peter J. Quigley, filed a Petition for Return of Personal Property against the Commonwealth, asserting that she and Christopher were co-owners of the car and requesting that the car be returned to her. (Docket Entries at 2, Reproduced Record (R.R.) at 53a; Petition for Return of Personal Property, R.R. at 5a-9a.) The Commonwealth did not file an answer to the petition for return of property, but responded to the trial court's rule to show cause by requesting continuances of the hearing, which the trial court granted. (Docket Entries at 2, R.R. at 53a.) The Commonwealth did not file any petition for forfeiture before the hearing on the petition for return of property. (Docket Entries at 2, R.R. at 53a.)
On November 15, 2010, the trial court held a hearing on Lamond's petition for return of property. At this hearing, the Commonwealth orally moved for forfeiture and requested that the trial court consolidate its forfeiture petition with Lamond's petition for return of property. (Trial Court Opinion at 2.) The trial court granted the motion to consolidate, which Lamond did not oppose, and directed the Commonwealth to file a written forfeiture petition promptly. (Trial Court Opinion at 2-3.) On November 15, 2010, the trial court issued an order denying Lamond's petition for return of property. (Docket Entries at 2-3, R.R. at 53a-54a; Trial Court Order of November 15, 2010, R.R. at 20a.)
On November 19, 2010, four days after the Commonwealth first asserted any request for forfeiture and before the Commonwealth filed its written forfeiture petition, Lamond filed a demand for jury trial, asserting that she was entitled to demand a jury trial within five days after the hearing under Section 5 of the Act of July 3, 1941, P.L. 263, 35 P.S. § 831.5. (Docket Entries at 3, R.R. at 54a; Motion for Jury Trial, R.R. at 21a.) On November 24, 2010, the Commonwealth filed its petition for forfeiture. (Docket Entries at 3, R.R. at 54a; Petition for Forfeiture and Condemnation.) On November 24, 2010, the trial court granted Lamond's request for jury trial and placed the case on the February 2011 Civil Trial List. (Docket Entries at 3, R.R. at 54a; Trial Court Order of November 24, 2010, R.R. at 22a.)
On November 29, 2010, the trial court issued an order granting the Commonwealth's petition for forfeiture. (Docket Entries at 3, R.R. at 54a; Trial Court Order of November 29, 2010, R.R.at 29a-30a.) On December 30, 2010, however, the trial court entered an Order reconfirming that the case was listed for jury trial in February 2011. (Docket Entries at 3, R.R. at 54a; Trial Court Order of December 30, 2010, R.R. at 31a-32a.)
In or about late January 2011, the Commonwealth filed a Motion for Continuance requesting that the jury trial listing be stricken "on the ground that the issue has already been decided pursuant to the Court's Order dated November 29, 2010." (Motion for Continuance, R.R. at 35a.) On February 7, 2011, the trial court granted the request to strike the jury trial listing and scheduled argument and briefing on the issue of whether Lamond was entitled to a jury trial. (Docket Entries at 4, R.R. at 55a; Trial Court Order of February 7, 2011, R.R. at 33a.)
The record is unclear as to the date of filing of this request. The Motion for Continuance in the record bears a verification and a certificate of service dated February 8, 2011, and was docketed February 10, 2011. (Docket Entries at 4, R.R. at 55a; Motion for Continuance, R.R. 36a-37a.) This motion was clearly filed earlier, however, as Lamond's answer to that motion was filed on January 27, 2011, and the trial court's order on that motion was issued on February 7, 2011, both before the motion was ostensibly filed. (Docket Entries at 4, R.R. at 55a.)
On May 27, 2011, following briefing and argument, the trial court entered an order holding that Lamond was not entitled to a jury trial and adopting its orders of November 29, 2010 and November 15, 2010, granting forfeiture and denying return of property, as the final order of the court. (Docket Entries at 5, R.R. at 56a; Trial Court Order of May 27, 2011, R.R. at 38a.) The prothonotary's office sent the May 27, 2011 final order to counsel on May 31, 2011. (Affidavit of Mailing Order of May 27, 2011, R.R. at 44a.)
The prothonotary's office however, did not send the May 27, 2011 order to Lamond or her attorney of record, Attorney Quigley, but instead sent it to a different attorney, Jeffrey Velander. (Docket Entries at 5, R.R. at 56a; Affidavit of Mailing Order of May 27, 2011, R.R. at 44a; Trial Court Opinion at 3-4.) Attorney Velander had argued the jury trial issue before the trial court for Lamond. (Trial Court Opinion at 3-4; Appellant's Rule 1925(b) Statement at 3, R.R. at 60a.) Attorney Velander, however, does not practice in the same law office or at the same address as Attorney Quigley (Appellant's Rule 1925(b) Statement at 3, R.R. at 60a, 65a-66a; Petition for Return of Personal Property, R.R. at 8a), and never filed any entry of appearance as attorney for Lamond or any papers in this case on behalf of Lamond. (Docket Entries, R.R. at 53a-56a.)
Lamond and Attorney Quigley first learned of the May 27, 2011 order on July 18, 2011, when counsel for the Commonwealth informed Attorney Quigley of it after he contacted her about settlement. (Petition for Leave to Appeal Nunc Pro Tunc, R.R. at 40a-41a.) On July 29, 2011, Lamond filed a petition seeking leave to appeal the May 27, 2011 order nunc pro tunc on the ground that no notice of the order had ever been sent to her or her counsel of record. (Docket Entries at 5, R.R. at 56a; Petition for Leave to Appeal Nunc Pro Tunc, R.R. at 39a-42a.) The trial court, on August 1, 2011, denied the petition for leave to appeal nunc pro tunc. (Docket Entries at 5, R.R. at 56a; Trial Court Order of August 1, 2011, R.R. at 45a.) On August 31, 2011, Lamond appealed that order and the May 27, 2011 order. (Docket Entries at 5, R.R. at 56a; Notice of Appeal, R.R. at 46a.)
Lamond appealed the trial court's orders to the Superior Court, which transferred the appeal to this Court pursuant to Pa. R.A.P. 751(a).
Lamond argues two issues in this appeal: (1) that the trial court's denial of leave to appeal nunc pro tunc was reversible error; and (2) that she was entitled to a jury trial.
We review the trial court's denial of leave to appeal nunc pro tunc for error of law or other abuse of its discretion. Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 655 A.2d 666, 668 n.3 (Pa. Cmwlth. 1995); see also Union Electric Corp. v. Board of Property Assessment, Appeals & Review of Allegheny County, 560 Pa. 481, 485, 746 A.2d 581, 583 (2000) (denial of nunc pro tunc appeal is reversible for abuse of discretion, which includes overriding or misapplying the law). Whether the trial court erred in denying a jury trial is an issue of law subject to plenary review. Fastuca v. L.W. Molnar & Associates, 608 Pa. 187, 203, 10 A.3d 1230, 1239 (2011) (statutory interpretation is an issue of law subject to plenary review); Straub v. Cherne Industries, 583 Pa. 608, 615 n.7, 880 A.2d 561, 566 n.7 (2005) (whether conduct constitutes a waiver of a party's rights is a question of law subject to plenary review).
While appeal beyond the deadline for filing an appeal is allowed only in extraordinary circumstances, it is well established that a breakdown in the court's operations constitutes an extraordinary circumstance that warrants granting leave to appeal nunc pro tunc. Union Electric Corp. v. Board of Property Assessment, Appeals & Review of Allegheny County, 560 Pa. 481, 486-87, 746 A.2d 581, 584 (2000); Weiman v. City of Philadelphia, 564 A.2d 557, 559 (Pa. Cmwlth. 1989); Fischer v. UPMC Northwest, 34 A.3d 115, 120 (Pa. Super. 2011). Failure of the prothonotary to give written notice of the entry of an order to a party or her counsel of record is a breakdown in the court's operations that entitles that party to appeal nunc pro tunc. Nixon v. Nixon, 329 Pa. 256, 259-62, 198 A. 154, 156-58 (1938); Weiman, 564 A.2d at 559-60; Fischer, 34 A.3d at 120-21; Pa. R.C.P. No. 236(a)(2).
Such a breakdown in the court's operations occurred here. There is no dispute that the prothonotary failed to give any notice of the May 27, 2011 order to Lamond or her attorney of record, Attorney Quigley. (Docket Entries at 5, R.R. at 56a; Affidavit of Mailing Order of May 27, 2011, R.R. at 44a; Trial Court Opinion at 3-6.) There is also no dispute that Lamond and Attorney Quigley did not learn of the May 27, 2011 order until July 18, 2011, well beyond the thirty-day appeal deadline, and that Lamond sought leave to appeal nunc pro tunc less than two weeks later.
The only justification given by the trial court or argued by the Commonwealth for denying leave to appeal nunc pro tunc is that notice of the order was sent to a different lawyer, unaffiliated with Attorney Quigley, who had argued for Lamond on May 2, 2011, on the jury trial issue. (Trial Court Opinion at 5-7.) That does not warrant denial of leave to appeal nunc pro tunc. Rule of Civil Procedure 236 requires the prothonotary to give written notice of orders to the party's attorney of record, and failure to comply with Rule 236 is grounds for granting a nunc pro tunc appeal where the party and attorney of record do not in fact receive notice. Pa. R.C.P. No. 236(a)(2); Fischer, 34 A.3d at 120-21; Panzone v. Fayette County Zoning Hearing Board, 944 A.2d 817, 821-22 (Pa. Cmwlth. 2008). Service on an attorney other than the attorney of record does not satisfy Rule 236's requirements. Panzone, 944 A.2d at 822.
Rule 236 provides: "(a) The prothonotary shall immediately give written notice of the entry of ... (2) any other order or judgment [other than judgment by confession] to each party's attorney of record or, if unrepresented, to each party. The notice shall include a copy of the order or judgment." Pa. R.C.P. No. 236(a)(2).
Attorney Velander, the attorney to whom the prothonotary's office sent the May 27, 2011 order, had never filed an entry of appearance as attorney for Lamond and did not appear on the docket as an attorney for Lamond. (Docket Entries, R.R. at 53a-56a.) The fact that he argued before the court on the one occasion of the motion at issue was not sufficient to make him attorney of record for Lamond or permit the prothonotary to notify him rather than Attorney Quigley. Panzone, 944 A.2d at 822 ("The attorney of record is the attorney listed in the docket"); Fraternal Order of Police, Lodge No. 5 v. City of Philadelphia, 655 A.2d 666, 668 (Pa. Cmwlth. 1995) ("Notice of a change in counsel can only be given to the prothonotary by filing an entry of appearance"). The sending of the order to Attorney Velander, rather than to Attorney Quigley, therefore did not satisfy Rule 236. Because no notice of the May 27, 2011 order was given in accordance with Rule 236 and there is no evidence or claim that Lamond or her attorney of record had actual notice of the order, Lamond was entitled to appeal nunc pro tunc, and the instant appeal is properly before us.
The trial court's denial of jury trial was also error. Lamond had a constitutional right to a jury trial on the forfeiture of the car. Commonwealth v. One 1984 Z-28 Camaro Coupe, 530 Pa. 523, 610 A.2d 36 (1992); Commonwealth v. $3961.00 Cash, 1 A.3d 999, 1001 (Pa. Cmwlth. 2010); Commonwealth v. $1,400 in U.S. Currency, 667 A.2d 452, 454 (Pa. Cmwlth. 1995). The only issue is whether she waived her right to a jury by failing to file a jury demand before the trial court held the November 15, 2010 hearing. We conclude that Lamond did not waive her right to a jury trial, under the facts of this case, where the jury demand was filed before the Commonwealth filed its forfeiture petition and there was no affirmative waiver by Lamond of her right to a jury trial.
Lamond argues that her jury demand was timely because Section 5 of the Act of July 3, 1941, P.L. 263, 35 P.S. § 831.5, which addresses forfeiture of vehicles, expressly provides for assertion of a right to jury trial within five days after the court has held a hearing on forfeiture and return of property. 35 P.S. § 831.5(7) ("Unless either the Commonwealth or the claimant shall demand a jury trial within five (5) days after the conclusion of the hearing the right to such jury trial shall be deemed to have been waived"). The Commonwealth argues, and the trial court held, that Lamond's jury demand was invalid because this statute was superseded and repealed by the later Forfeiture Act, enacted in 1988. (Trial Court Opinion at 7-9; Appellee's Br. at 8-10.) We need not resolve on the limited briefing before us the issue of whether the Forfeiture Act repealed 35 P.S. § 831.5(7). It is also unnecessary to resolve whether the jury trial procedure of 35 P.S. § 831.5(7) applies to this case, which did not arise under that statute, because no waiver has been shown here even if the specific authorization of post-hearing jury demand was not available to Lamond.
The statute in question was not expressly repealed and has been treated by this Court as remaining in effect after the enactment of the Forfeiture Act. See Reeves v. Pennsylvania Game Commission, 584 A.2d 1062, 1066 (Pa. Cmwlth. 1990). The Forfeiture Act addresses the same subject as 35 P.S. § 831.5, forfeiture of vehicles used in connection with drug law violations. Compare 42 Pa. C.S. § 6801(a)(4) with 35 P.S. § 831.5(1). A subsequent statute that "sets up a general or exclusive system covering the entire subject matter of a former statute and is intended as a substitute for such former statute" is to be construed as repealing all prior laws on the same subject. Section 1971(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1971(a). However, repeals by implication are not favored, and an overlapping, later statute will not be construed as repealing an earlier statute with which it does not conflict. EMC Mortgage Corp. v. Lentz, 972 A.2d 112, 118-19 (Pa. Cmwlth. 2009). The Forfeiture Act does not address jury trial or prescribe any time limit or procedure that conflicts with 35 P.S. § 831.5(7). 42 Pa. C.S. §§ 6801-6802; One 1984 Z-28 Camaro Coupe, 530 Pa. at 527, 610 A.2d at 39.
The Commonwealth's petition for forfeiture was filed pursuant to the Forfeiture Act, not under 35 P.S. § 831.5. (Petition for Forfeiture and Condemnation at 1, 2.) Lamond's petition for return of property was under Pa. R. Crim. P. 588, not the Forfeiture Act or 35 P.S. § 831.5. Singleton v. Johnson, 929 A.2d 1224, 1227 (Pa. Cmwlth. 2007) (en banc); see also Appellant's Br. at 13.
As the Commonwealth admits (Appellee's Br. at 9), if 35 P.S. § 831.5(7) does not apply, whether Lamond's jury demand was timely is governed by Rule of Civil Procedure 1007.1. Commonwealth v. One 1991 Cadillac Seville, 853 A.2d 1093, 1095 (Pa. Cmwlth. 2004) (Rules of Civil Procedure apply to Forfeiture Act cases where Forfeiture Act does not contain a specific provision); see also $3961.00 Cash, 1 A.3d at 1002 (applying Pa. R.C.P. No. 1007.1(c)(2) in analyzing whether jury trial was waived). Rule 1007.1 provides that the right to jury trial "shall be deemed waived unless a party files and serves a written demand for a jury trial not later than twenty days after service of the last permissible pleading." Pa. R.C.P. No. 1007.1(a) (emphasis added).
Lamond's jury demand was well within this time limit. The "last permissible pleading" filed in this case, the Commonwealth's petition for forfeiture, was filed on November 24, 2011, and the claim that it set forth was first asserted, orally, on November 15, 2011. Lamond's written jury demand was filed on November 19, 2011, before the Commonwealth's forfeiture petition was filed and only four days after the Commonwealth first asserted its claim. While it is unorthodox that the jury demand was filed after the hearing, the timing of the closure of the pleadings was due to the Commonwealth's delay and its unorthodox conduct of failing to assert its forfeiture claim before the hearing.
While there may be some question whether a petition for forfeiture is a "pleading" under Pa. R.C.P. No. 1017 subject to preliminary objections, see Brown, 940 A.2d at 611-12, it is a pleading for purposes of applying Rule 1007.1, as it is the filing which sets forth the Commonwealth's claim for relief.
There is no finding of any express agreement or conduct by Lamond waiving her right to a jury trial. The trial court did not find any affirmative waiver or base its denial of jury trial on any conduct of or statement by Lamond or her counsel at the November 15, 2010 hearing; instead, the court based its denial of jury trial solely on its conclusion that the Forfeiture Act repealed 35 P.S. § 831.5(7). (Trial Court Opinion at 7-9.) Moreover, the trial court did not regard participation in the hearing as a consent to non-jury determination, as the trial court in November 2010, at the same time as it was issuing its orders following the November 15, 2010 hearing, granted Lamond's request for jury trial and ordered that the case be listed for jury trial. (Trial Court Order of November 24, 2010, R.R. at 22a.)
None of the cases argued by the Commonwealth support its claim that Lamond waived her right to jury trial. In those cases where the court found waiver, the jury demand was made long after the last original pleading was filed and long after the last pleading filed by the opposing party. Pomposini v. T.W. Phillips Gas & Oil Co., 580 A.2d 776 (Pa. Super. 1990) (jury demand was first made years after action was brought and four days into trial, following party's own amended pleading); Commonwealth v. Roy, 469 A.2d 261 (Pa. Super. 1983) (only pleading in case was filed in January 1980 and no jury demand was made before August 1980, over seven months later). Here, in contrast, Lamond filed her jury demand before the basic pleadings were closed, before the Commonwealth even filed its forfeiture petition.
The remaining case cited by the Commonwealth, Beach v. Burns International Security Services, 593 A.2d 1285 (Pa. Super. 1991), did not find any waiver of jury trial or analyze what timing or delay would constitute a waiver, but instead addressed whether agreements to waive jury trial violate public policy. --------
For the foregoing reasons, we reverse the trial court's denial of leave to appeal nunc pro tunc and vacate the trial court's order of May 27, 2011, and we remand this matter to the trial court for a jury trial.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 18th day of July, 2012, the order of August 1, 2011 of the Monroe County Court of Common Pleas is reversed, the order of May 27, 2011 of the Monroe County Court of Common Pleas is vacated, and this matter is remanded to said court to afford Diane Lamond a jury trial on her Petition for Return of Personal Property and the Commonwealth's Petition for Forfeiture and Condemnation.
Jurisdiction relinquished.
/s/_________
JAMES GARDNER COLINS, Senior Judge