Appendix — Petitt v. Brilla

e swerre Court, ue,

02 1607 sR 50 299

OFFICE OE THE eumey

No.

Supreme Court of the United States

JOHN PETTITT, DISTRICT ATTORNEY OF

WASHINGTON COUNTY, PEN) +SYLVANIA,

2ition«. A

v.

FREDERICK A. BRILL,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL FOR THE THIRD CIRCUIT

APPENDixX TO

PETITION FOR WRIT OF CERTIORARI

Anthony Cillo, Esquire

Counsel of Record

Cohen & Grigsby, P.C.

11 Stanwix Street

15th Floor

Pittsburgh, PA 15222

~ 412-297-4900

la

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2076

FREDERICK A. BRILLA

V.

JOHN PETTIT;

MICHAEL FAGELLA;

JOHN DOE, and;

JANE DOE, employees of the

District Attorneys Office of

Washington County,

Pennsylvania, and/or members

of the Washington County Drug

Task Force

John Pettit,

Appellant.

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 98-1021)

District Judge: The Honorable Robert J. Cindrich

Submitted under Third Circuit LAR 34. 1 (a)

January 16, 2003

Before: ROTH, FUENTES and ALDISERT, Circuit

Judges.

(Filed January 30, 2003)

OPINION OF THE COURT

ALDISERT, Circuit Judge.

John Pettit, District Attorney of Washington

County, Pennsylvania, appeals a judgment entered

on a jury verdict after a remittitur of punitive

damages. He argues that the court erred in denying

his motion for judgment as a matter of law on

Frederick A. Brilla’s claim brought under 42 U.S.C.

§ 1983.

Appellant contends that the court erred:

(1) in determining that there was sufficient evidence

for the jury to conclude that the district attorney

deprived the plaintiff of his constitutional rights by

failing to return property to him within a reasonable

_ time; (2) in denying his motion for judgment as a

matter of law with respect to punitive damage

claims; (3) in abusing its discretion by failing to

award a new trial on the issues of liability and

punitive damages because the verdict was against

the weight of the evidence; and (4) by failing to remit

further the punitive damages award. The jury

returned a verdict of $1 in compensatory damages

and $100,000 in punitive damages. In granting a

remittitur, the court reduced the punitive damages

to $50,000.

Because the parties are familiar with the

facts and the proceedings in the district court, we

will discuss only the questions of law and will

affirm.

We are satisfied that there was sufficient

evidence upon which to sustain a judgment. Upon

3a

Brilla’s arrest, his property was seized and stored by

the Pennsylvania State Police. While the property

was stored, the Appellant personally paid storage

fees for almost seven years, totaling $8,000. At the

same time, Brilla had brought an action to retrieve

his property, and the Washington County Court of

Common Pleas granted the relief sought. The

evidence is that the District Attorney’s office

received copies of all orders issued by the Clerk of

Court. Nevertheless, Appellant, as the district

attorney, refused to return the property including

lawn furniture, tractors, a motorcycle and other

items. Pettit concedes that the forfeiture action was

resolved in Brilla’s favor.

In addition to paying storage costs, Pettit

personally directed the property's transfer from the

State police storage facility to the county Jail and

his own Drug Task Force office. The jury could

certainly infer from Pettit’s involvement - as an

attorney, no less - that he should have known that

a forfeiture proceeding could never take 11 years to

come to fruition, and that at some point he should

have questioned whether he was properly

continuing to be the "stakeholder" of Brilla’s

property. His indifference to the issue of whether he

was justified in keeping such property gave rise to

the award of punitive damages. |

We are satisfied that there was sufficient

evidence to sustain the verdict in favor of Brilla and

was not against the weight of the evidence as to

require a new trial.

Pettit argues that although the district court

reduced the punitive damages from $100,000 to

$50,000, it erred by not reducing it to a lower

amount. In BMW of North America, Inc. v. Gore,

517 U.S. 559 (1996), the Supreme Court

established three guideposts to assist courts in

4a

determining the reasonableness of a_ punitive

damages award: (1) the degree of reprehensibility of

the tortuous conduct; (2) the ratio of punitive

damages to compensatory damages; and (3) the

difference between this remedy and the civil

penalties authorized or imposed in comparable

cases. 517 U.S. at 574-575. In Lee v. Edwards, 101

F.3d 805 (2nd Cir. 1996), our sister court

concluded that these factors should assist the court

in the application of the "shock the judicial

conduct" standard. 101 F.3d at 809.

The District Court stated:

Pettit's conduct, although found

reprehensible by the jury, was not as

blameworthy as wrongs we have seen

in other civil rights cases. Moreover,

the punitive damages awarded in other

civil rights cases involving much more

egregious conduct indicates that

Brilla’s award is excessive. That being

said, the calculation of a_ suitable

reduction is not an easy task. As the

courts have recognized, the

determination of a remittitur is not

amenable to precise calculation. Based

on our review of other civil rights

cases, however, we believe that a

remittitur of $50,000, for a_ total

punitive damage award of $50,000, is

appropriate. A substantial punitive

damages award is warranted in this

case in light of the important

constitutional property night that was

violated. We find, however, that

$50,000 is the maximum punitive

damage recovery that does not shock

the judicial conscience.

App. at 16A. The court’s decision on remittitur will

not be disturbed absent a manifest abuse of

discretion. Spence v. Bd. of Educ., 806 F.2d 1198,

1201 (3d Cir. 1986). We conclude that the district

court did not exceed the bounds of a proper exercise

of discretion.

- We have considered all contentions of the

parties and conclude that no further discussion is

necessary. |

The judgment of the district court will be

affirmed.

/s/ Ruggero J. Aldisert

Circuit Judge

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2076

FREDERICK A. BRILLA

v.

JOHN PETTITT;

MICHAEL FAGELLA;

JOHN DOE, and;

JANE DOE, employees of the

District Attorneys Office of

Washington County,

Pennsyivania, and/or members

_of the Washington County Drug

Task Force

John Pettit,

Appellant.

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 98-1021)

District Judge: The Honorable Robert J. Cindrich

Submitted under Third Circuit LAR 34. 1 (a)

January 16, 2003

Before: ROTH, FUENTES and ALDISERT, Circuit

Judges.

(Filed January 30, 2003)

JUDGMENT

This cause came on to be considered on the

record from the United States District Court for the

Wesiern District of Pennsylvania and was submitted

on January 16, 2003.

On consideration whereof, it is now hereby

ADJUDGED and ORDERED that the judgment of

the district court entered March 22, 2002, be and

the same is hereby affirmed.

Costs taxed against the Appellant.

Attest:

LS/

' Acting Clerk

DATED: January 30, 2003

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

FREDERICK A. BRILLA,

)

)

)

Plaintiff, )

) Civil Action

Vv. ) No. 98-1021

)

JOHN PETTIT, employee )

of Washington County )

District Attorneys’ Office )

and/or member of )

Washington County Drug )

Task Force, )

Defendant. )

MEMORANDUM ORDER

This civil rights action arose from the seizure

of certain of plaintiff Frederick A. Brilla's property

pursuant to his being arrested. Brilla alleged that

defendant John Pettit, the Washington County

District Attorney, unlawfully deprived him of the

use of his property in violation of the Fourteenth

Amendment to the United States Constitution

because certain items of the property were never

returned and other items were retained for an

unreasonable period of time. After a four-day jury

trial, the Jury found in favor of plaintiff and against

defendant. and awarded plaintiff $1 in nominal

damages and $100,000 in punitive damages.

Pending before the court is defendant's

Motion for Judgment as a Matter of Law and/or a

New Trial and Motion for Remittitur of Jury Verdict.

(Doc. No. 44) and plaintiff's Motion for Attorney's

9a

Fees and Costs (Doc. No. 46), which we address in

turn.

I. Standard of Decision

A court may grant a renewed motion for

judgment as a matter of law if "there is no legally

sufficient evidentiary basis for a reasonable jury to

find for," the prevailing party. Fed. R. Civ. P.

SO(a)(1); 50(b). In analyzing a motion for judgment

as a matter of law pursuant to Rule 50(b), the court

must determine if the record is “critically deficient of

that minimum quantum of evidence from which a

jury might reasonably afford relief." Andrews v. City

of Philadelphia, 895 F.2d 1469 (3d Cir. 1990)

(citations omitted).

Such a motion should be granted only

if, viewing the evidence in the light

most favorable to the nonmovant and

giving it the advantage of every fair -

and reasonable inference, there is

insufficient evidence from which a jury

reasonably could find liability. In

determining whether the evidence is

sufficient to sustain liability, the court

may not weigh the evidence, determine

the credibility of witnesses, or

substitute its version of the facts for

the jury's version. Although judgment

as a matter of law should be granted

sparingly, a scintilla of evidence is not

enough to sustain a verdict of liability.

"The question is not whether there is

literally no evidence supporting the

party against whom the motion is

directed but whether there is evidence

upon which the jury could properly

find a verdict for that party."

10a

Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153,

1166 (3d Cir. 1993) (citations and quotation

omitted).

A Rule 50 motion "should be granted only if,

viewing the evidence in the light most favorable to

the nonmovant and giving it the advantage of every

fair and reasonable inference, there is insufficient

evidence from which a jury reasonably could find

liability." Lightning Lube, Inc. v. Witco Corp., 4 F.3d

1153, 1166 (3d Cir. 1993).

Such a motion may be joined with a motion

under Rule 59 for a new trial, as plaintiff has done.

Federal Rule of Civil Procedure 59 provides in

pertinent part that "[a] new trial may be granted to

all or any of the parties and on all or part of the

issues (1) in an action in which there has been a

trial by jury, for any reasons for which new trials

have heretofore been granted in actions at law in

the courts in the United States...."[T]he district

court's power to grant a new trial motion is limited

to those circumstances ‘where "a miscarriage of

justice would result if the verdict were to stand.'"

Olefins Trading, Inc. v. Han Yang Chem Corp., 9

F.3d 282, 289 (3d Cir. 1993) (citations omitted); see

Greenleaf v. Garlock, Inc., 174 F.3d 352, 366 (3d

Cir. 1999) ("[NJew trials because the verdict is

against the weight of the evidence are proper only

when the record shows that the jury's verdict

resulted in a miscarriage of justice or where the

verdict, on the record, cries out to be overturned or

shocks our conscience.” (quoting Williamson v.

Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d

Cir. 1991)).

Il. Defendant's Motion for Judgment as a Matter

of Law And/or a New Trial and Motion for

Remittitur of Jury _

lla

Pettit raises several arguments in support of

his motion for judgment notwithstanding the verdict

and/or a new trial and motion for remittitur of jury

verdict which we address in turn-

A. Defendant's Motion for Judgment as a

Matter of Law

Pettit argues that judgment as a matter of

law should be granted with respect to the punitive

damages award because there was no evidence that

he personally acted with evil motive or callous or

reckless disregard to Brilla's constitutional rights,

or that one of his subordinates so a ;

As we properly instructed the jury, punitive

damages may be awarded when a defendant

deprives a plaintiff of a constitutionally protected

right maliciously or in reckless or callous disregard

of, or adifference to such protected right. It is not

necessary, however, for the plaintiff to present

direct evidence of malicious intent on the part of a

defendant to justify an award of punitive d ’

Intent may be inferred from the nature of the acts

committed by the defendant and from the facts and

circumstances surrounding such acts.

Pettit bases his motion on the same version

of events that he argued to the jury. Pettit contends,

for example, that the evidence does not support a

finding that he acted maliciously or in reckless or

callous disregard of, or indifference to Brilla's

Constitutionally protected rights because the

seizure of the property was initiated not by him but

by the Pennsylvania State Police: that the

subsequent forfeiture action was initiated not by

him but by the Pennsylvania Attorney General's

Office; that he never had possession, custody, or

control over the property; that his involvement with

the property was limited to preservation and

12a

protection only; that he believed that he did not

have the authority to release the property; that his

office was not a party to the state court proceeding

which resulted in the issuance of an April 1996

court order directing the return of Brilla's property:

that he was unaware of the situation involving

Brilla's property until the filing of the instant suit

and that soon thereafter the suit was filed the

property was returned; and that he had no personal

or official motive for retaining the property.

Although we recognize that this is Pettit's

version of events, there was evidence from which a

jury reasonably could find that he acted in reckless

or callous disregard of, or indifference to Brilla's

property rights. As Brilla points out, there was

compelling evidence that Pettit, although not

__responsible for the initial seizure of Brilla's

property, was shortly thereafter in possession,

custody and control of the property. For example,

Pettit paid the $8,000 in storage fees to store the

property for more than ten years; Pettit is the

person everyone would go to regarding the transfer

of the property; and Pettit is the one who decided

where and when the property should be moved from

storage.

There was also evidence which contradicted

Pettit's claim that he was unaware of the situation

involving Brilla's property. First, Pettit wrote the

checks for the $8,000 in storage fees. Pettit also

relinquished some of Brilla's property to a

lienholder with whom he was personal friends soon

after the seizure. There was also evidence

discrediting Pettit's claimed lack of knowledge of the

April 1996 order. One of Pettit's assistant district

attorneys was-ordered to appear at a hearing in

connection with that order. Furthermore, Pettit's

office customarily receives a copy of all court orders

13a

filed with the Washington County Clerk of Courts

that pertain to the return of property.

In addition, Pettit acknowledged that the only

justification any one ever had for possessing Brilla's

property was the original forfeiture action by the

State Attorney General which was promptly

dismissed. Thus, Brilla, as the rightful owner of the

property, was entitled to its retum within a

reasonable period of time. The property was not

returned until several years later, despite Brilla's

several requests for its return and a court order

directing the same. Moreover, even though Pettit

claimed that the filing of the instant action brought

the matter to his attention, the property was not

returned until a substantial period after the suit

was filed.

In sum, when viewing the evidence in a light

most favorable to Brilla and giving him the

advantage of every fair and reasonable inference, we

cannot find that there was insufficient evidence

from which a jury reasonably could find that Pettit

acted with reckless or callous disregard of, or

indifference to Brilla's constitutionally protected

property rights." Accordingly, Pettit's motion for

judgment as a matter of law will be denied.

B. Defendant's Motion for a New Trial and

1 Pettit provides neither argument nor analysis with regard to

the nominal damages award. He states instead that even

though his brief focuses on the punitive damages award, he

is also entitled to judgment as a matter of law on the

nominal damages award. We note that for the reasons set

SL

14a

1) Punitive Damages Award

Pettit argues that a new trial should be

ordered because the punitive damages verdict is

against the weight of the evidence.

As set forth in our analysis of the evidence in

connection with the motion for judgment as a

matter of law, we find that there is sufficient

evidence from which a jury reasonably could find

that Pettit acted with reckless or callous disregard

of, or indifference to Brilla’'s constitutionally

protected property rights. Thus, a miscarriage of

justice would not result if the verdict is allowed to

_ stand. Accordingly, we reject Pettit's argument that

he is entitled to a new trial because the weight of

the evidence does not support the punitive damages

award.

2) Arguments by Opposing Counsel

Pettit argues that a new trial should be

ordered because Brilla's counsel made certain

prejudicial comments during the trial.

First, Pettit contends that counsel incorrectly

argued that $52,565 in seized cash had been

improperly retained by the District Attorney's Task

Force when in fact that money had been properly

applied to a fine imposed on Brilla. The court

already ruled at trial that testimony and evidence

regarding the disposition of this cash, which was

seized along with all of the other property, was

admissible. The disposition of the cash was so

intertwined in the facts relating to the actual

property at issue that evidence regarding the cash

was, if nothing else, appropriate background

information. Pettit's counsel was free to argue, and

did, that the cash was not at issue in the case and

15a

was properly administered. We find no prejudice to

Pettit based on counsel's questions regarding the

cash.

Next, Pettit contends that counsel improperly

argued that the Washington County District

Attorney's Office was a Commonwealth Agency.

Pettit contends that the jury may have been

confused that the District Attorney's Office, which

he maintains is not a Commonwealth Agency,

participated in the forfeiture proceeding which only

involved the State Attorney General's Office. Pettit

put this matter at issue as he argued during the

trial that the April 1996 order did not apply to his

office because the order was. directed to

Commonwealth agencies. Regardless of the wording

of the April 1996 order, there was compelling

evidence that the District Attorney's Office was in

possession and control of Brilla's property and held

it without lawful authority for an unreasonable

length of time.

Finally, Pettit contends that counsel made

repeated improper personal attacks on his

character. Pettit does not specify what those

comments were. Instead, he cites several pages of

the transcript of counsel's closing argument. See

Draper v. Airco, 580 F.2d 91, 97 (3d Cir. 1993)

(Appropriate inquiry into whether counsel's

comments during closing argument requires new

trial is whether the closing contains "such

numerous and serious violations of the rules of

proper argument" that there is a reasonable

probability that the verdict was influenced by the

prejudicial statements.) A review of these pages

reveals that with one exception Pettit made no

objections to counsel's comments. Pettit cannot

raise an objection now to a comment that he did not

object to during trial. In any event, the comments

appearing on these pages were proper argument as

to Pettit's credibility. See Def's App. (Doc. No. 62)

pp. 627-29, 631-32, 658-59). Accordingly, we reject

Pettit's argument that he is entitled to a new trial

because of plaintiff's counsel's closing remarks.

3) Defendant's Motion for Remittitur

Pettit argues that the court should order a

new trial because the $100,000 punitive damages

award was excessive. Citing BMW of North America,

Inc. v. Gore, 517 U.S. 559 (1996), Pettit argues in

the alternative that the punitive damages award

should be reduced because it was excessive.

A new trial may be ordered if a punitive

damages award is "so grossly excessive as to shock

the judicial conscience," Keenanv. City of

983 F.2d 459, 472 (Sd Cir. 1992), or

indicates that the verdict resulted from passion or

prejudice, Evans v. Port Authority of New York and

New Jersey, 273 F.3d 346, 352 (3d Cir. 2001);

Dunn v. Hovic, 1, F.3d 1371, 1382 (3d Cir. 1993).

"[Wihere the verdict is so large as to shock the

conscience of the court . . . [the court may] order|]

plaintiff to remit the portion of the verdict in excess

of the maximum amount supportable by the

evidence or, if the remittitur [is] refused, to submit

to a new trial.” Kazan v.. Wolinski, 721 F.2d 911,

914 (3d Cir. 1983) (citing Perzoeproski v. American

t , 319 F.Supp. 1329, 1330 (E.D.

Pa. 1970)). Before ordering a remittitur, however,

the court must conclude that the verdict was "so

grossly excessive as to shock the judicial

conscience." Gumbs v. Pueblo International, Inc.,

823 F.2d 768, 771 (3d Cir. 1987). If the court

determines that a remittitur is necessary, the

amount "should be set at the maximum recovery,

that does not shock the judicial conscience." Id. at

774 (citation omitted). However, "[t]he determination

of that amount may not be precisely calculated.” Id.

17a

In Gore, the Supreme Court established three

guideposts to assist the court in determining the

reasonableness of a punitive damages award (1) the

degree of reprehensibility of the tortious conduct:

(2) the ratio of punitive damages to compensatory

damages; and (3) the difference between this

remedy and the civil penalties authorized or

imposed in comparable cases. 517 U.S. at 574-75.

Although the Court of Appeals for the Third Circuit

has not yet applied these guideposts in a Section

1983 case, the Court of Appeals for the Second

Circuit has concluded that such factors should

assist the court in the application of the "shock the

judicial conscience" standard. See Lee v. Edwards,

101 F.3d 805, 809 n.2 (2d Cir. 1996) ("Although

Gore examined the excessiveness of punitive

damages awarded in a state court, the universal

premise of the Supreme Court's due process

reasoning suggests that the same considerations

apply equally to the review of punitive damages in

federal court." (citation omitted)); see also Garner v.

Meoli, 19 F.Supp. 2d 378, 392 (1998) (civil rights

case where court considered Gore when

determining that remittitur of punitive damages

award was not justified)..We, like the Court of

Appeals for the Second Circuit, believe that the

Gore factors should guide our review of Brilla's

punitive damages award.’

2 Although the Court of Appeals for the Third Circuit has not

spoken on the applicability of the Gore guideposts in civil

rights cases, the court recently applied a “shocks the

Judicial conscience” analysis in a Section 1983/Title VII

employment discrimination case which took similar factors

into account. See Evans v. Port A . N

New Jersey, 273 F.3d 346,

has endeavored to follow [our] instructions, consider similar

cases, evaluate the evidence and determine a damages

figure that [was] rationally related to [that] evidence,

10

18a

The Supreme Court’ considered’ the

reprehensibility of a defendant's conduct to be

"[Plerhaps the most important indicium of the

reasonableness of a punitive damages award ...

[noting that] some wrongs are more blameworthy

than others." Gore, 517 U.S. at 575. The Court

identified certain - aggravating factors that

differentiate some wrongs as_ being more

reprehensible than others. Those factors include "(1)

whether a defendant's conduct was violent or

presented a threat of violence, (2) whether a

defendant acted with deceit or malice as opposed to

acting with mere negligence, and (3) whether a

defendant has engaged in repeated instances of

misconduct." Lee, 101 F.3d at 809 (citing Gore, 517

U.S. at 575-577). Pettit correctly points out that

the instant case involved no acts of violence or

threats of violence. Rather, the claims deal primarily

with claimed lapses in the administration of seized

property. Also, there was no evidence that Pettit had

been charged with misconduct at any other time.

Pettit's actions, however, as found by the jury, went

beyond mere negligence. The evidence in this case,

as described above, supports a finding that Pettit

acted with reckless or callous disregard of, or

indifference to Brilla's constitutionally protected

property rights, conduct on equal footing with

malice.

With regard to the ratio of punitive damages

to compensatory damages, the Supreme Court

explained that "the proper inquiry is whether there

is a reasonable relationship between the punitive

damages award and the harm likely to result from

the defendant's conduct as well as the harm that

mindful that (t]he determination of that amount may not be

precisely calculated.” (quotations omitted)).

1]

19a

actually has occurred." Gore, 517 U.S. at 581

(citation omitted). The Court cautioned, however,

that:

low awards of compensatory damages

may properly support a higher ratio

than high compensatory awards, if, for

example, a particularly egregious act

has resulted in only a small amount of

economic damages. A higher ratio may

also be justified in cases in which the

injury is hard to detect or the monetary

value of noneconomic harm might have

been difficult to determine.

Id. at 582.

In\ Lee, the Court of Appeals for the Second

Circuit concluded that this guidepost was not

helpful in a civil rights case. Lee, 101 F.3d at 811.

The Court explained that the Supreme Court's

observations in Gore reinforce the rule that punitive

damages may be awarded in a Section 1983 case

even if compensatory damages are nominal,

because "violations of civil rights may very well be

‘particularly egregious' acts that result in only 'a

small amount of economic damages' or injuries

whose monetary value is ‘difficult to determine.'"

Lee, 101 F.3d at 811 (citing Gore, 517 U.S. at 582).

Thus, the 500 to 1 ratio calculated in Gore, a

state tort action, should not create a benchmark for

what is considered to be a fair ratio in a Section

1983 case. Lee, 101 F.3d at 811. Otherwise,

"[blecause the compensatory award fin the civil

rights case at issue] was nominal, any appreciable

exemplary award would produce a ratio that would

appear excessive. . . ." Id. (emphasis in original).

We, like the Court of Appeals in Lee, find that a

12

20a

comparative ratio would not be helpful in this civil

rights case.’

As to a comparison of the punitive damages

awarded here versus punitive damages awarded in

comparable cases, Pettit accurately notes that there

appears to be no reported federal cases involving

facts similar to the instant case. However, Pettit

cites several cases involving other civil rights

violations. See Def's Br. (Doc. No. 61) pp. 12, 13 n.9

(citing cases). Pettit argues that a comparison to the

punitive damages awarded in these cases indicates

that Brilla's award is excessive. We agree. Even

though the cases cited by Pettit involved conduct

much more egregious than the civil rights violations

at issue here, the amount of punitive damages

awarded in those cases is on par with Brilla's

award. See e.g., King v. Macri, 993 F.2d 294 (2d Cir.

1993) ($150,000 total punitive damages award

against court security officers who repeatedly

punched plaintiff after he was on the ground and

maliciously prosecuted him causing him to be sirip

searched and placed in pretrial detention on Rikers

Island for two months); Ismail v. Cohen, 899 F.2d

183, 186 (2d Cir. 1990) ($150,000 punitive damages

award against police officer who beat plaintiff

causing broken rib, two displaced vertebrae, and

head injuries); O'Neill v. Krzeminski, 839 F.2d 9 (2d

3 We also note that because Pettit returned most of Brilla's

property during the litigation, the economic harm in this

case would have consisted almost entirely of the loss of use

of the property for a closed period of time. The monctary

value of such harm would be particularly difficult to

calculate in this case given that the bulk of the property

wrongfully withheld was two motorcycles that were

apparently used for recreational purposes. Moreover, the

few items that were never returned consisted of family

photographs that would have been very difficult to put a

price on, but undoubtedly were of great sentimental value

to Brilla.

13

Pe Ae OT Oe een at

ee ————————O

Cir. 1988) ($185,000 punitive damages award

against police officers who struck plaintiff on the

head while he was handcuffed and dragged him to a

holding cell by the throat); Giroux v: Sherman, 807

F. Supp. 1182 (E.D. Pa. 1992) ($10,000 punitive

damages award against prison guard who forced

prisoner-plaintiff to walk to call from

while he repeatedly struck plaintiff in the kidneys

with a baton causing kidney and urinary tract

injury).

In sum, we find based on the guideposts

identified in Gore, that the punitive damages award

in this case is excessive and should be reduced.

Pettit's conduct, although found reprehensible by

the jury, was not as blameworthy as wrongs we

have seen in other civil rights cases. Moreover, the

punitive damages awarded in other civil rights cases

involving much more egregious conduct indicates

that Brilla's award is excessive. That being said, the

calculation of a suitable reduction is not an easy

task. As the courts have recognized, the

determination of a remittitur is not amenable to

precise calculation. Based on our review of other

civil rights cases, however, we believe that a

remittitur of $50,000, for a total punitive damages

award of $50,000, is appropriate. A substantial

punitive damages award is warranted in this case in

light of the important constitutional property right

that was violated. We find, however, that $50,000 is

the maximum punitive damages recovery that does

not shock the judicial conscience.

Based on the foregoing reasons, Pettit's

mtion for a new trial will be denied and the motion

ior remittitur will be granted in the amount of ~—

$50,000.

Il. tiff's Motion for Attorney's Fees and

Costs

14

A. Attorney's Fees

Brilla, as a prevailing party on his Section

1983 claim, moves for an award of attorney's fees

pursuant to 42 U.S.C. Section 1988. He requests a

total award of $18,750 in fees, consisting of 125

hours of attorney Joel Johnston's time at $150 per

hour.

A prevailing party may, at the court's

discretion, be entitled to the award of a reasonable

attorney fee as part of the costs of the suit. 42

U.S.C. Section 1988. The Supreme Court has held,

however, that "in the absence of _ special

circumstances a district court not merely 'may' but

must awerd fees to the prevailing plaintiff."

Independent _Fed'n of Flight Attendants v. Zipes,

491 U.S. 754, 761 (1989)(citing Newman v. Piggie

Park Enter., Inc., 390 U.S. 400, 402 (1968)).

"The party seeking attorney's fees has the

burden to prove that its request for attorney's fees

is reasonable. To meet its burden, the fee petitioner

must ‘submit evidence supporting the hours

worked and rates claimed.'" ev. ‘

892 F.2d 1177, 1183 (3d Cir. 1990)(quoting

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

’ The burden then shifts to the opposing party to

“challenge, by affidavit or brief with sufficient

specificity to give fee applicants notice, the

reasonableness of the requested fee." Id. at 1183

(citing Beli v. United Princeton Properties, Inc., 884

F.2d 713 (8d Cir. 1989)). The court may not

“decrease a fee award based on factors not raised at

all by the adverse party." Id. (citing Bell, 884 F.2d at

720). "Once the adverse party raises objections to

the fee request, the district court has a great deal of

discretion. to adjust the fee award in light of those

objections." Id. (citing Bell, 884 F.2d at 721).

15

23a

"The most useful starting point for

determining the amount of a reasonable fee is the

number of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate."

Hensley, 461 U.S. at 433. The result of this

computation is called the lodestar and is “strongly

presumed to yield a reasonable fee." Washington v.

Co. Ct. of Common Pleas, 89 F.3d

1031, 1035 (3d Cir. 1996) (citing City of

Burlington v. Dague, 505 U.S. 557 (1992)).

As to the number of hours, the court should

exclude excessive, .redundant or otherwise

unnecessary hours as not "reasonably expended."

Rode, 892 F.2d at 1183 (citing Hensley, 461 U.S. at

433). The court may also exclude hours spent

litigating claims on which the party did not succeed

and that were distinct in all respects from the

claims on which it did succeed. Id. The court may

also deduct hours that the party seeking fees has

failed to adequately document. Id.

The hourly rate is calculated according to the

prevailing market rate in the community. Id. (citing

Blum v. Stenson, 465 U.S. 886, 895 (1984.). To do

this, the court must assess the “experience and skill

of the prevailing party's attorneys and compare

their rates to the rates prevailing in the community

for similar services by lawyers of reasonably

comparable skill, experience, and reputation." Id.

Once the "lodestar" has been determined by

multiplying rate times hours, the court may make

certain adjustments. Id. The burden of persuasion

is on the party seeking such an adjustment. The

lodestar can be adjusted downward, for example, if

it is not reasonable in light of the results obtained.

Id. This general reduction accounts for time spent

on unsuccessful claims related to the claim that

16

24a

triggered the right to obtain fees and should be

taken independently of any other adjustments. Id.

Pettit argues that Brilla is not entitled to any award

of attorney's fees because he did not recovery any

compensatory damages. He argues in_ the

alternative that even if the court determines that

Brilla is entitled to an attorney's fee award, the

hourly rate is improper and certain of the hours

claimed are not recoverable.

1) Entitlement to an Attorney's Fee

Award

Citing Farrar v. Hobby, 506 U.S. 103 (1992),

Pettit argues that Brilla is not entitled to an

attorney's fee award because he failed to recover

any compensatory damages. The Supreme Court

held as follows in Farrar:

Although the "technical" nature of a

degree of the plaintiff's overall success

goes to the reasonableness,” of a fee

award under Hensley v. Eckerhart,

461 U.S. 424, 103 S.Ct. 1933, 76

L.Ed.2d 40 (1983). [Texas State

Teachers _ Assn. __v. ___ Garland

Independent School Dist., 489 U.S.

782, 793, 109 S.Ct. 1486, 1494

(1989)]. Indeed, “the most critical

factor” in determining the

reasonableness of a fee award “is the

degree of success obtained."

supra, 461 U.S., at 436, 103 S.Ct., at

17

25a

1941. Accord, Marek v. Chesny, 473

U.S. 1, 11, 105 S.Ct. 3012, 3017, 87

L.Ed.2d 1 (1985). In this case,

petitioners received nominal damages

instead of the $17 million in

compensatory damages that they

sought. This litigation accomplished

little beyond giving petitioners "the

moral satisfaction of knowing that a

federal court concluded that [their]

rights had been violated" in some

way. [Hewitt v. Helms, 482

U.S. 755, 762, 107 S.Ct. 2672, 2676

(1987)]. . . . "Where recovery of private

damages is the purpose of... . civil

rights litigation, a district court, in

fixing fees, is obligated to give primary

consideration to the amount of

damages awarded as compared to the

amount sought." Riverside v. Rivera,

477 U.S. 561, 585, 106 S.Ct. 2686,

2700, 91 L.Ed.2d 466 (1986) (Powell,

J., concurring in judgment). Such a

comparison promotes the _ court's

“central” responsibility to "make the

assessment of what is a reasonable fee

under the circumstances of the case."

v. 489 U.S. 87,

96, 109 S.Ct. 939, 946, 103 L.Ed.2d

67 (1989).

In some circumstances, even a

plaintiff who formally “prevails” under

Section 1988 should receive no

attorney's fees at all. A plaintiff who

seeks compensatory damages but

receives no more than nominal

damages is often such a prevailing

party. As we have held, a nominal

damages award does render a plaintiff

18

a prevailing party by allowing him to

vindicate his "absolute" right to

procedural due process. through

enforcement of a judgment against the

defendant. [Carey v. Piphus, 435 U.S.

247, 266, 98 S.Ct. 1042, 1053 (1978)].

In a civil rights suit for damages,

however, the awarding of nominal

damages also highlights the plaintiff's

failure to prove actual, compensable

injury. Id., at 254-264, 98 S.Ct., at

1047-1052. Whatever the

constitutional basis for substantive

liability, damages awarded in a

Section 1983 action "must always be

designed ‘to compensate injuries

by the [constitutional]

299, 309, 106 S.Ct. 2537, 2544 (1986)

(quoting Carey, supra, 435 U.S., at

265, 98 S.Ct., at 1053) (emphasis and

brackets in original). When a plaintiff

monetary relief, see Carey, supra, at

256-257, 264, 98 S.Ct., at 1048-1049,

1052, the only reasonable fee is

usually no fee at all. In an apparent

failure to heed our admonition that fee

awards under Section 1988 were never

intended to “produce windfalls to

attorneys,"’ Riverside v. Rivera, supra,

477 U.S., at 580, 106 S.Ct., at 2697

(plurality opinion) (quoting S.Rep. No.

94-1011, p. 6 (1976) U.S. Code Cong.

& Admin. News 1976 pp. 5908, 5913).

the District Court awarded $280,000

in attorney's fees without

19

27a

“consider{ing] the relationship between

the extent of success and the amount

of the fee award.” Hensley, supra, 461

U.S., at 438, 103 S.Ct., at 1941.

506 U.S. at 114-116.

The plaintiff in Farrar sought $17 million in

compensatory damages but only received a nominal

damages award. Here, however, Brilla filed suit

seeking injunctive relief for the return of his

property and compensatory and punitive damages.

Although the defendant returned Brilla's property

prior to trial, which effectively mooted the issue of

injunctive relief,‘ Brilla pursued compensatory and

punitive damages through trial and obtained a

punitive.

Court's recent

me Inc. v. Wes

$41 (Sd Cir. 1994). In light of the

28a

the punitive damages award arising from this civil

rights litigation has materially altered the legal

relationship between the parties. Also, when

comparing the amount of total damages being

sought in this case to the amount of total damages

obtained, an attorney fee request in the range of

that being sought here is not unreasonable and

most certainly would not result in a windfall to

Brilla's attorney.

Accordingly, we reject Pettit's argument that

Brilla is not entitled to an attorney's fee award.

plaintiff in Abrams was awarded $473,000 in compensatory

and attorney's fees of $546,000. The defendant

argued that the attorney fee award was improper under

Farrar because it exceeded the damages award. The Court's

discussion of Farrar was in response to this argument,

which the Court ultimately held did not support the

defendant's proportionality argument. Indeed, our research

has uncovered no cases in the Court of Appeals for the

Third Circuit or any other Circuit where Farrar has been

interpreted as a bar to an attorney's fee award under facts

similar to this case. To the contrary, the Court of Appeals

for the Seventh and Ejighth Circuits have taken into

account the amount of compensatory and punitive damages

sought versus the amount recovered. See Cartwright v.

Stamper, 7 F.3d 106, 109 (7th Cir. 1993) ("[Plaintiffs here

sought substantial compensatory and punitive damages

and recovered only nominal damages ... ."); Jonesv.

AL. Lockhart, 29 F.3d 422, 424 (6th Cir. 1994) ("Most

importantly, Jones was awarded punitive damages.")

6 Pettit contends that a punitive damages award is not the

type of recovery that justifies an attorney's fee award

because such awards do little to advance the basic purpose

of Section 1983 which is to compensate persons for injuries

1983 is to punish defendants that deprive a plaintiff of his

or her Constitutional rights maliciously or in reckless or

callous disregard of such rights and to warn others against

doing the same.

21

2) Lodestar Calculation

Brilla submitted invoices in support of the

fees requested which details the 125 hours attorney

Johnston spent working on the case. We note at the

outset that based on our experience in reviewing

dozens of fee requests, the total hours expended

was imminently reasonable. In fact, it is far lower

than that we typically see, especially in cases that

have been tried to verdict before a jury. We will first

address Pettit's objections to the requested hourly

rate.

a) Hourly Rate

Pettit contends the hourly rate should be

limited to $125 which is the actual rate he was

charged by Johnston. Brilla maintains that even

though $125 was the actual hourly rate charged, a

$150 hourly rate represents the prevailing market

rate in the Pittsburgh area for attorneys with

Johnston's level of skill and years of experience.

Brilla further maintains that the hourly rate should

be adjusted upward to $150 because Johnston will

be treated unfairly by the Washington County

District Attorney's Office henceforth, and therefore

he will be unable to accept future criminal cases in

that county.

ranges between $125 to $150 and is $125 in federal

criminal cases. Pl's Supp. Mot. Ex. F. Although this

evidence supports Johnston's range of rates, the

actual $125 hourly rate charged is a better measure

of the prevailing market rate for Johnston's services

22

30a

in this case. Indeed, Johnston does not give any

specifics on what types and how many cases he

commands his top hourly rate of $150. In

comparison, he avers that $125 is his rate in

criminal cases before this court.

Also, we disagree with Brilla's argument that

the hourly rate should be adjusted upward to $150

because of the potential negative affect the case will

have on Johnston's ability to take criminal cases in

Washington County. Johnston's subjective belief

that he will be treated unfairly by the Washington

County District Attorney's Office, without more,

does not justify an upward adjustment. As Pettit

points out, the favorable publicity generated by the

results obtained in this case may have the opposite

affect on Johnston's practice. Moreover, Brilla

supposedly came to Johnston because he could not

find an attorney in Washington County willing to

take the case. Thus, it is a fair assumption that the

$125 rate set by Johnston already takes into

account the undesirability of the case.

Accordingly, we find that an hourly rate of

$125 is the prevailing market rate for Johnston's

services in this case.

b) Hours

Pettit argues that attorney's fees should not

be awarded for time spent performing clerical type

duties. Pettit does not cite any specific entry on

Brilla's supporting invoices that fall into this

category, but instead quotes the description of such

charges as follows: i) “travel Washington to file

motion to reconsider; serve same on Judge and DA";

ii) “travel to federal court to file complaint’:

iii) “travel to Canonsburg to pick-up client and

deliver subpoena to Ronald Levi."

3la

Time for activities that are more effectively

and economically performed by non-lawyers should

not be awarded at an attorney rate. Moreover, the

costs for clerical work, such as filing and copying,

are ordinarily included in an attorney's rate as

office overhead. The charges Pettit refers to fall

within this category. Thus, the following charges

will be excluded from the lodestar calculation:

1.75 hours: (For travel to Washington to

file motion and serve on

Judge and DA on 4/13/98)

.25 hours: (Estimate of .25 hours of

total .75 hours on 6/11/98

for serving complaint by

mail. Remaining .50 hours

allowed for preparation of

civil cover sheet, notice of

suit and waiver of

summons.)

1.75 hours: (Estimate of 1.75 hours of

total 3.50 hours on 6/10/01

for travel to Canonsburg to

pick-up client and deliver

subpoena to Ronald Levi.

Remaining 1.75 hours

allowed for computer

research to locate Levi and

prepare subpoenas.)

Pl's Mot. (Doc. No. 46) Ex. A.’

, we calculate the lodestar as

121.25 total hours (125 total requested hours - 3.75

7 Although Pettit did not provide a cite for these charges, we

were able to identify them based on his descriptions.

24

32a

excluded hours) times $125, for a total lodestar

amount of $15,156.25.

c) Downward en

Pettit argues that any fee award should be

reduced by the number of hours Brilla spent

prosecuting unsuccessful claims. In Hensley, the

Supreme Court "established certain principles to

guide the discretion of the lower courts in setting

fee awards in cases where plaintifis have not

achieved compnne success." Texas State Teachers

782, 789 (1989). The ee later cantons these

principles in Texas State explaining that

[wjhere the plaintiff's claims are based

on different facts and legal theories,

and the plaintiff has prevailed on only

some of those claims, we indicated

that "[t]he congressional intent to limit

[fee] awards to prevailing parties

requires that these unrelated claims

be treated as if they had been raised in

separate lawsuits, and therefore no fee

may be awarded for services on the

unsuccessful claim." Hensley, 461

U.S. at 435. In the more typical

situation, where the plaintiff's claims

arise out of a common core of facts,

and involve related legal theories, the

inquiry is more complex. In such a

case, we indicated that "the most

critical factor is the degree of success

obtained.” 461 U.S. at 436. We noted

that in complex civil rights litigation,

"the plaintiff often may succeed in

identifying some unlawful practices or

conditions," but that "the range of

possible success is vast," and the

25

33a

achievement of prevailing party status

alone "may say little about whether

the expenditure of counsel's time was

reasonable in relation to the success

achieved.” Id. We indicated that the

district courts should exercise their

equitable discretion in such cases to

arrive at a reasonable fee award, either

by attempting to identify specific

hours that should be eliminated or by

simply reducing the award to account

for the limited success of the plaintiff.

Id. at 437.

489 U.S. at 789-790.

The instant case is the more typical

situation, as Brilla's claims arose out of a common

core of facts and involved related legal theories.

Thus, the critical factor to examine is Brilla's degree

of success.’ As previously noted, Brilla filed this

action seeking the return of his property and

compensatory and punitive damages for its

8 In Hensley, the Court identified the following twelve factors

to guide the lower court's determination: the time and labor

required; the novelty and difficulty of the questions; the

skill requisite to perform the legal service properly; the

preclusion of employment by the attorney due to

acceptance of the case; the customary fee; whether the fee

is fixed or contingent; time limitations imposed by the client

or the circumstances; the amount involved and results

obtained; the experience, reputation, and ability of the

attorneys; the undesirability of the case; the nature and

length of the professional relationship with the client and

awards in similar cases. Hensley, 461 U.S. at 430 n.3

(citations omitted). The Court further noted, however, that

"many of these factors usually are subsumed within the

initial calculation of hours reasonably expended at a

reasonable hourly rate.” Id. at 434 n.9 (citations omitted).

Again, the results obtained is the “particularly crucial"

factor and is what our consideration focuses on. Id, at 434.

26

wrongful withholding. The filing of the this suit

prompted the return of the property and resulted in

a substantial punitive damages award. Thus, Brilla

achieved considerable success in this case.

We also note that Brilla's somewhat broadly

stated complaint was not improper given the dearth

of case law dealing with the peculiar facts at issue.

The legal theories were quickly refined, however,

and focused on the constitutional claim ultimately

submitted to the jury. Indeed, based on our

experience with the case, having presided over it

since its filing, and review of the supporting invoices

we find that the total hours spent on the case by

attorney Johnston are within a reasonable range

and were not significantly increased, if at all, by

pursuing any legal claim that did not make it the

jury. Thus, we reject Pettit's argument that the fee

award should be adjusted downward.

Accordingly, Brilla's motion for attorney's

fees will be granted in the amount of $15,156.25,

which we find to be a reasonable fee that is

supported by the evidence.

B. Costs

Brilla also moves pursuant to Fed. R. Civ. P.

54(d)(1) for an award of Costs of $509.23.

Federal Rule of Civil Procedure 54(d)(1)

provides that "costs other than attorneys' fees shall

be allowed as of course to the prevailing party

unless the court otherwise directs .. ." The

definition of allowable costs is set forth at 28 U.S.C.

Section 1920 which defines such costs as:

(1) Fees of the clerk and marshal;

27

35a

(2) Fees of the court reporter for all or any

part of the stenographic transcript

necessarily obtained for use in the

case;

(3) Fees and disbursements for printing

and witnesses;

(4) Fees for exemplification and copies of

papers necessarily obtained for use in

the case;

(5) Docket fees under section 1923 of this

title;

(6) Compensation of court appointed

experts, compensation of interpreters,

and salaries, fees, expenses, and costs

of special interpretation services under

section 1828 of this title.

28 U.S.C. Section 1920; Crawford Fitting

Company v. J.T. Gibbons, Inc., 482 U.S. 437, 443

(1987) ("Section 1920 defines the term ‘costs' as

used in Rule 54{d)").

Our review of the supporting invoices

indicates that the requested costs fall in these

categories of recoverable costs.” Accordingly, Brilla’

motion for an award of $509.23 in costs will be

granted. 7

For the foregoing reasons, IT IS HEREBY

ORDERED that:

9 The only objection by Pettit to the requested costs is a

conclusory allegation that there “are expenses for the

attendance of witnesses that apparently did not testify at

trial.” Def's Resp. (Doc. No. 53) p. 11. Pettit does not,

however, cite any specific entry on Brilla's supporting

invoices for these costs or identify who these witnesses are.

28

The defendant's motion for judgment

as a matter of law and/or a new trial

(Doc. No. 44) is DENIED.

The defendant's motion for remittitur

of the $100,000 punitive damages

award (Doc. No. 44) is GRANTED in

the amount of $50,000. Thus, unless

plaintiff files a remittitur of punitive

damages in excess of $50,000 within

twenty days of the date of this

memorandum order, a new trial on the

issue of punitive damages will be

ordered.

The plaintiff's motion for attorney's

fees and costs (Doc. No. 46) is

GRANTED in the amount of

$15,156.25 for attorney's fees and

$509.23 in costs for a total award of

$15,665.48 in attorney's fees and

costs.

SO ORDERED this 20th day of March, 2002.

LS/

Robert J. Cindrich

United States District Judge

cc:

Joel B. Johnston :

432 Boulevard of the Allies

The Professional Building

Pittsburgh, PA 15219

Anthony Cillo

Cohen & Grigsby

11 Stanwix Street

15th Floor

Pittsburgh, PA 15222

Rhonda J. Sudina

Summers, McDonnell, Walsh & Skeel

707 Grant Street

Gulf Tower, Suite 2400

Pittsburgh, PA 15219

30

PURDON’S PENNSYLVANIA STATUTES AND

CONSOLIDATED STATUTES |

ANNOTATED

PURDON’S PENNSYLVANIA CONSOLIDATED

STATUTES ANNOTATED

TITLE 42. JUDICIARY AND JUDICIAL

PROCEDURE

PART VI. ACTIONS, PROCEEDINGS AND OTHER

MATTERS GENERALLY

CHAPTER 68. CONTROLLED SUBSTANCES

FORFEITURES

Current through Act 2002-55

§ 6801. Loss of property rights to

Commonwealth

(a) Forfeitures generally. The following

shall be subject to forfeiture to the Commonwealth

and no property right shall exist in them:

(1) All drug paraphernalia,

controlled substances or other drugs which have

been manufactured, distributed, dispensed or

acquired in violation of the act of April 14, 1972

(P.L. 233, No. 64), known as The Controlled

Substance, Drug, Device and Cosmetic Act.

(2) All raw materials, products and

equipment of any kind which are used, or intended

for use, in manufacturing, compounding,

processing, delivering, importing or exporting any

controlled substance or other drug in violation of

The Controlled Substance, Drag, Device and

Cosmetic Act.

(3) All property which is used, or

intended for use, as a container for property

described in paragraph (1) or (2).

(4) All conveyances, including

aircraft, vehicles or vessels, which are used or are

intended for use to transport, or in any manner to

facilitate the transportation, sale, receipt,

possession or concealment of, property described in

paragraph (1) or (2), except that:

(i) no conveyance used by

any person as a common carrier in the

transaction of business as a common carrier

shall be forfeited under the provisions of this

section unless it shall appear that the owner

or other person in charge of such conveyance

was a consenting party or privy to a violation

of The Controlled Substance, Drug, Device

and Cosmetic Act;

(ii) | mo conveyance shall be

forfeited under the provisions of this section

by reason of any act or omission established

by the owner thereof to have been committed

or omitted without his knowledge or consent,

which absence of knowledge or consent must

be reasonable under the circumstances

Pa.C.S. (relating to commercial code) by any

merchant dealing in new or used aircraft,

vehicles or vessels, or retained or acquired by

40a

(iv) mo conveyance shall be

forfeited under this section for violation of

section 13(a)(31) of The Controlled Substance,

Drug, Device and Cosmetic Act.

(5) All books, records and_ research,

including formulas, microfilm, tapes and data,

which are used or intended for use in violation of

The Controlled Substance, Drug, Device and

Cosmetic Act.

(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, and all

proceeds traceable to such an

exchange.

(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.

(C) Real property used

or intended to be used to facilitate any

violation of The Controlled Substance,

whole or any lot or tract of land and

any appurtenances or improvements,

which is used, or intended to be used,

4la

in any manner or part, to commit, or

to facilitate the commission of, a

violation of The Controlled Substance,

Drug, Device and Cosmetic Act, and

things growing on, affixed to and

found in the land.

(ii) No property shall be

forfeited under this paragraph, to the extent

of the interest of an owner, by reason of any

act or omission established by the owner to

have been committed or omitted without the

knowledge or consent of that owner. Such

money and negotiable instruments found in

close proximity to controlled substances

in violation of The Controlled

Substance, Drug, Device and Cosmetic Act

shall be rebuttably presumed to be proceeds

derived from the selling of a controlled

substance in violation of The Controlled

Substance, Drug, Device and Cosmetic Act.

(i) No _ valid lien or

encumbrance on real property shall be

subject to forfeiture or impairment under this

paragraph. A lien which is fraudulent or

intended to avoid forfeiture under this

section shall be invalid.

(7) Any firearms, including, but not

42a

Controlled Substance, Drug, Device and Cosmetic

Act. All weapons forfeited under this section shall

be immediately destroyed by the receiving law

enforcement agency.

(b) Process and seizure. Property subject

to forfeiture under this chapter may be seized by

the law enforcement authority upon process issued

by any court of common pleas having jurisdiction

over the property. Seizure without process may be

made if:

(1) the seizure is incident to an

arrest or a search under a search warrant or

inspection under an administrative inspection

warrant;

(2) the property subject to seizure

has been the subject of a prior judgment in favor of

the Commonwealth in a criminal injunction or

forfeiture proceeding under this chapter;

(3) there is probable cause to

believe that the property is dangerous to health or

safety; or

(4) there is probable cause to

believe that the property has been used or is

intended to be used in violation of The Controlled

Substance, Drug, Device and Cosmetic Act.

(c) Seizure without process. In the event

(d) Custody of property. Property taken

or detained under this section shall not be subject

to replevin, but is deemed to be in the custody of

the law enforcement authority subject only to the

43a

orders and decrees of the court of common pleas

having jurisdiction over the forfeiture proceedings

and of the district attorney or the Attorney General.

When property is seized under this chapter, the law

enforcement authority shall place the property

under seal and either:

(1) remove the property to a place

designated by it; or

(2) require that the district attorney

or Attorney General take custody of the

property and remove it to an appropriate

location for disposition in accordance with

law.

(e) Use of property held in custody.

Whenever property is forfeited under this chapter,

the property shall be transferred to the custody of

the district attorney, if the law enforcement

authority seizing the property has local or county

jurisdiction, or the Attorney General, if the law

enforcement authority seizing the property has

Statewide jurisdiction. The district attorney or the

Attorney General, where appropriate, may:

(1) Retain the property for official

use.

(2) Sell any forfeited property

which is not required to be destroyed by law and

which is not harmful to the public, but the proceeds

from any such sale shall be used to pay all proper

expenses of the proceedings for forfeiture and sale,

including expenses of seizure, maintenance of

custody, advertising and court costs. The balance

of the proceeds shall be dealt with in accordance

with subsections (f) and (g).

(f) Use of cash or proceeds of property.

Cash or proceeds of forfeited property transferred to

the custody of the district attorney pursuant to

subsection {e) shall be placed in the operating fund

of the county in which the district attorney is

elected. The appropriate county authority shall

immediately release from the operating fund,

without restriction, a like amount for the use of the

district attorney enforcing the provisions of The

Controlled Substance, Drug, Device and Cosmetic

Act. The entity having budgetary control shall not

anticipate future forfeitures or proceeds therefrom

in adoption and approval of the budget for the

district attorney.

(g) Distribution of property among law

enforcement authorities. If both municipal and

State law enforcement authorities were

substantially involved in effecting the seizure, the

court having jurisdiction over the forfeiture

proceedings shall equitably distribute the property

between the district attorney and the Attorney:

General.

(h) Authorization to utilize property. The

district attorney and the Attorney General shall

utilize forfeited property, or proceeds thereof for the

purpose of enforcing the provisions of The

Controlled Substance, Drug, Device and Cosmetic

Act. In appropriate cases, the district attorney and

the Attorney General may designate proceeds from

forfeited property to be utilized by community-based

drug and crime-fighting pregrams and for relocation

and protection of witnesses in criminal cases.

i) Annual audit of forfeited property. It

shall be the responsibility of every county in this

Commonwealth to provide, through the controller,

board of auditors or other appropriate auditor and

the district attorney, an annual audit of all forfeited

property and proceeds obtained under this section.

The audit shall not be made public but shall be

submitted to the Office of Attorney General. The

county shall report all forfeited property and

proceeds obtained under this section and the.

disposition thereof to the Attorney General by

September 30 of each year.

(j) Annual report; confidential

information regarding property. The Attorney

General shall annually submit a report, to the

Appropriations and Judiciary Committees of the

Senate and to the Appropriations and Judiciary

Committees of the House of Representatives,

specifying the forfeited property or proceeds thereof

obtained under this section. The report shall give

an accounting of all proceeds derived from the sale

of forfeited property and the use made of unsold

forfeited property. The Attorney General shall adopt

procedures and guidelines governing the release of

information by the district attorney to protect the

confidentiality of forfeited property or proceeds used

in ongoing drug enforcement activities.

(k) Proceeds and appropriations. The

proceeds or future proceeds from forfeited property

under this chapter shall be in addition to any

appropriation made to the Office of Attorney

General.