A party facing the forfeiture of his or her home for underlying drug activity, like a criminal defendant, must first be advised of the right to a trial by jury, the Commonwealth Court has ruled.

An en banc Commonwealth Court panel unanimously agreed to grant a Philadelphia woman a new hearing on the state’s forfeiture petition to claim her North Philadelphia home under the Controlled Substances Forfeiture Act, with the lead opinion of the court acknowledging a "greater level of due process" required when a person, especially someone who is not criminally charged, is facing the loss of his or her home.

In so holding, the court ruled Pennsylvania Rule of Civil Procedure 1007.1 (requiring a party to demand a jury if he or she wants one) does not apply to forfeiture cases, even though they are technically civil proceedings. The criminal standard of making a "knowing, intelligent and on-the-record" waiver of one’s right to a jury was more fitting, the panel held.

And, while appellant Takeela Burney’s home was the site of an alleged controlled drug buy and a search warrant execution yielding drugs and cash, she was never criminally charged with drug activity.

"It is difficult to imagine a more punitive result than the forfeiture of one’s home and personal residence when not only are there no convictions of the homeowner for any of the underlying offenses that could result in forfeiture, but no charges have ever been alleged or filed against the owner of the home," Judge Renee Cohn Jubelirer wrote in a 21-page majority opinion.

In reversing a Philadelphia Court of Common Pleas judge, Jubelirer also offered the following policy pronouncement underlying the panel’s decision: "We have a deeply held appreciation for law enforcement and the officers who work on the front lines to protect our families and communities," Jubelirer said. "We understand the importance of depriving criminals the proceeds of their crimes, and the need to make our communities safer by reducing violence and drug activities by eliminating the safe houses which provide sanctuary to those activities and perpetrators; however, it is also our obligation to assure that these laudable goals are achieved within constitutional boundaries."

"These boundaries are more apparent where there is no alleged criminal conduct of the homeowner, the taking of whose home may result in eviction and homelessness to the homeowner and perhaps even several generations of family, by the use of civil forfeiture proceedings."

When the case of Commonwealth v. Real Property and Improvements at 2238 N. Beechwood Street first got underway, according to Jubelirer, Burney was lawyerless and indigent. The state had moved to forfeit her house after executing a controlled buy and search warrant of the residence, in addition to arresting several individuals, including Burney’s son, involved in drug sales at the property.
At the hearing over the forfeiture petition, according to the opinion, Burney did not present witnesses, cross-examine the police officer who testified or attempt to assert the "innocent owner" defense, or other defenses she may have had available to her, Jubelirer said.

The innocent-owner defense, found at 42 Pa.C.S Section 6802(j), sets forth that, if the state presents evidence the property in question was used unlawfully, the burden falls on the claimant to show that he or she is the owner, that the claimant lawfully acquired the property and that the claimant did not use the property unlawfully and reasonably did not know the property was being used in that way.

At the conclusion of the hearing, according to Jubelirer, the trial court ordered the property to be forfeited and transferred to the Philadelphia District Attorney’s Office.

On appeal, Burney, now represented pro bono by Matthew D. Lee of Blank Rome in Philadelphia, raised a host of issues for the panel’s consideration. Burney claimed the trial court erred by ruling the state had established a causal nexus, failing to recognize Burney is an innocent, lawful owner of the property that did not consent to unlawful activity and that concluding forfeiture was appropriate based on an agreement to which Burney was not a party, among other things.

However, it was the court’s failure to ensure Burney understood she had a right to a jury trial during which she could assert affirmative defenses that ultimately disposed of the case. In reversing the trial judge and remanding for a new hearing, the court never reached the other issues.

In a three-page concurring opinion, President Judge Dan Pellegrini tried to point out other constitutional rights afforded a party opposing a forfeiture petition, in addition to the right to have a jury trial. Those rights were the right against self incrimination, the right against excessive fines and the right to assert the innocent owner defense.

A party may only "knowingly and intelligently" waive all the above, he said. Judges Patricia A. McCullough and Mary Hannah Leavitt joined Pellegrini. Judge Robert Simpson concurred with the majority, but only in the result. Judges P. Kevin Brobson and Anne E. Covey fully joined Jubelirer.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the 26-page opinion in Commonwealth v. Real Property and Improvements at 2238 N. Beechwood Street, PICS No. 13-0813, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •