             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Return of Personal Property               :
                                                 :
Appeal of: Commonwealth of                       :   No. 645 C.D. 2017
Pennsylvania, by and through                     :   Submitted: January 5, 2018
Township of Upper Darby                          :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION BY
JUDGE COHN JUBELIRER                                 FILED: March 22, 2018


       The Commonwealth of Pennsylvania, by and through the Township of Upper
Darby (the Township), appeals from an Order of the Court of Common Pleas
(common pleas) of Delaware County, dated March 16, 2017, which granted the
Petition of Appellee (Mr. Ryan) to return personal property that the Township Police
Department seized from him. Upon review, we conclude that common pleas erred
in granting the Petition and instead should have dismissed it as it is barred by the
six-year time limitation contained in Section 5527(b) of the Judicial Code, 42 Pa.
C.S. § 5527(b).1 Thus, we reverse the Order and dismiss the Petition.




       1
         Section 5527(b) provides that “[a]ny civil action or proceeding which is neither subject
to another limitation specified in this subchapter nor excluded from the application of a period of
limitation by section 5531 (relating to no limitation) must be commenced within six years.” 42
Pa. C.S. § 5527(b).
       On December 2, 2016, Mr. Ryan and Mrs. Ryan (collectively, the Ryans),2
who are married, filed with common pleas a Petition for Return of Personal Property
(Petition). The Ryans alleged that on August 22, 2003, when they were living at the
home of Mr. Ryan’s mother, the Township Police Department responded to the
residence in response to a report that there was an attempted suicide in progress. The
Township Police entered the bedroom Mr. Ryan was occupying and found him
passed out with a loaded .45 caliber pistol in his hand. The Township Police
disarmed Mr. Ryan and transported him to the hospital without incident. At the
hospital, a physician found that Mr. Ryan was “severely mentally disabled and in
need of treatment[, and that h]e should be admitted to a facility designated by the
County Administrator for a period of treatment not to exceed 120 hours.”3
(Application for Involuntary Emergency Examination, Reproduced Record (R.R.) at
30a.) Mr. Ryan was discharged from the hospital five hours after his arrival.
       About the same time, police seized from Mr. Ryan’s bedroom “for safety” the
following items:

       1.   A Fury combat knife with a black handle.
       2.   A combat knife with a broken handle.
       3.   A black and silver samurai sword.
       4.   A High Country compound bow.
       5.   Three black nylon holster[s] and one brown leather holster.
       6.   A green ammunition box with live ammunition and shells.
       7.   A red bag with various gun cleaning kits and shooting gear.

       2
          Although the Petition was filed on behalf of both Mr. Ryan and Mrs. Ryan, common
pleas’ docket lists only Mr. Ryan as the Petitioner and, in the order appealed from, common pleas
references only “petitioner” in the singular. (Reproduced Record (R.R.) at 73a, 76a.)
        3
          Section 302 of the Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, as
amended, 50 P.S. § 7302, provides for the involuntary emergency treatment of a “severely
mentally disabled” person who is “in need of emergency treatment.” A severely mentally disabled
person includes a person who “has attempted suicide” and “there is the reasonable probability of
suicide unless adequate treatment is afforded.” Section 301 of the Mental Health Procedures Act,
50 P.S. § 7301.


                                               2
      8. A black UMAREX .177 pellet gun with serial # J138259591.
      9. A Glock 23 .40 caliber firearm with serial number EVG284.
      10. A Colt .357 Python Revolver serial # V12277.
      11. A long barrel .44 caliber pistol with serial number DO1272.
      12. A Colt .45 caliber Model # M1991A1 with serial # CJ27065.
      13. A large brown metal ammunition box.

(Petition (Pet.) ¶ 10(1), R.R. at 6a-7a;4 Incident Report, R.R. at 14a.) Mrs. Ryan is
the alleged owner of item 9. Mr. Ryan is the alleged owner of the remaining items.
The Township Police provided Mr. Ryan with a property receipt for the above items.
The Ryans requested that the Township Police and the Sheriff of Delaware County
return the above items.5
      The Township answered and asserted that the Petition should be denied as
untimely. The Township asserted that there is no specific limitations period for a
petition to return personal property and, therefore, the residual, six-year statute of
limitations under Section 5527(b) applies. The Township claimed that since it seized
the property identified in the Petition 13 years before the Petition was filed, the
Petition was time-barred. (Id. (citing Commonwealth v. Allen, 59 A.3d 677 (Pa.
Cmwlth. 2012) (holding that on a motion for the return of property pursuant to Rule
588(A) of the Pennsylvania Rules of Criminal Procedure, Pa.R.Crim.P. 588(A), the
residual six-year statute of limitation applies), aff’d on other grounds, 107 A.3d 709
(Pa. 2014) (Allen II) (holding that the failure to move for return of property under
Rule 588(A) while the trial court retains jurisdiction over the criminal proceeding,
which is up to 30 days after disposition, results in waiver), and Barren v. Pa. State
Police, 148 A.3d 486 (Pa. Cmwlth. 2016) (explaining the holdings of this Court in
Allen and our Supreme Court in Allen II)).) In addition, the Township alleged that


      4
          The Petition contains two paragraphs numbered 10.
      5
          Hereinafter, we refer solely to Mr. Ryan.


                                               3
it had destroyed some of the items identified in the Petition and that it no longer has
any of the items identified in the Petition in its possession.
       At a hearing on February 13, 2017, the parties stipulated that Mr. Ryan is the
lawful owner of the items identified in the Petition.6 The Township entered into
evidence several documents, which the parties agreed were authentic and showed
that the items identified in the Petition had been destroyed.7 Common pleas asked
Mr. Ryan’s Counsel if she wanted to prepare a letter brief explaining why common
pleas has the authority to order the return of the items identified in the Petition even
though “the items are gone.” (Hr’g Tr. at 10, R.R. at 61a.) Counsel responded that
she needed 10 days to prepare a letter brief. There is no such letter brief in the record,
and the Township indicates in its appellate brief that Mr. Ryan’s Counsel did not file
a letter brief.
       By Order dated March 16, 2017, common pleas, finding “no legal basis upon
which to deny the . . . request for a return of the property[,]” ordered the Sheriff of
Delaware County to return the items identified in the Petition.8 (Order, Mar. 16,
2017.) The Township filed a notice of appeal and a concise statement of errors
complained of pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, Pa.R.A.P. 1925(b), claiming, inter alia, that the Petition was untimely.



       6
          Counsel for Mr. Ryan indicated that the items were seized “as a result of a 302
evaluation,” (Hr’g Tr. at 4, R.R. at 55a), in an apparent reference to Section 302 of the Mental
Health Procedures Act.
        7
          Counsel for Mr. Ryan represented that she could call him to testify if needed, but if he
was to testify “he’ll stipulate [sic] that the value was $4,000 to $5,000 of the items taken, unless
counsel has some questions for him.” (Hr’g Tr. at 9, R.R. at 60a.) Counsel for the Township
stated that he had no questions for Mr. Ryan. (Id.)
        8
          Common pleas signed a proposed order that Mr. Ryan had attached to the Petition. (R.R.
at 45a-46a.) There was no proof offered at the hearing that the Sheriff of Delaware County
possesses the items identified in the Petition.


                                                 4
       On the issue of timeliness, common pleas explained in its opinion issued
pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure,
Pa.R.A.P. 1925(a), that Allen and Barren, the cases the Township cited to support
the dismissal of the Petition as untimely, are distinguishable because the seizures of
property there related to criminal prosecutions. Since the items identified in the
Petition were not seized as the result of a criminal prosecution, common pleas
concluded that Allen and Barren are inapplicable and there is no statute of limitations
prohibiting the Petition from being filed 13 years after the items were seized.
       On appeal,9 the Township argues that the Petition was time-barred. The
Township argues that the residual six-year statute of limitations under Section
5527(b), applies. While noting that items identified in the Petition were not seized
in connection with a criminal proceeding, thereby making Allen distinguishable, the
Township argues that this Court’s analysis of Section 5527(b) in Allen is persuasive
and should be followed. In Allen, the Township continues, this Court, looking at
both criminal and civil law statutes, concluded that no specific limitations period
governed, and then applied Section 5527(b). Under common pleas’ analysis, the
Township argues, “any person aggrieved by a seizure of property by law
enforcement is free to file a petition for return of property at any time, even . . . 50
years from the date of the seizure, so long as there was no underlying criminal
proceeding.” (Township’s Br. at 14.) Such an interpretation is at odds with the
rulings of the Pennsylvania Supreme Court and this Court in Allen, the Township
contends. Moreover, the Township continues, there are good reasons for having a

       9
          On appeal from a decision of common pleas on a petition for the return of property, our
standard of review is whether common pleas’ findings of fact are supported by competent
evidence, whether common pleas abused its discretion, or whether common pleas committed an
error of law. Commonwealth v. Matsinger, 68 A.3d 390, 395 n.5 (Pa. Cmwlth. 2013).



                                               5
statute of limitations where, as here, memories have faded and documentation is
sparse.10
       In Allen, the appellant was arrested on January 10, 2002, following a traffic
stop, which resulted in him being charged, inter alia, with possession of a controlled
substance. 59 A.3d at 678. At the time of the appellant’s arrest, police seized $1,061
in cash from him. Id. The prosecution withdrew the charges against the appellant
on November 8, 2002. Nearly eight years later, the appellant filed a motion pursuant
to Rule 588(A) of the Pennsylvania Rules of Criminal Procedure, Pa.R.Crim.P.
588(A),11 seeking return of the $1,061. The Commonwealth filed a motion to
dismiss, arguing that the appellant had waived his right to seek the return of the cash
“because he filed his Rule 588 motion more than seven years after the final
disposition of his criminal case.” Id. Relying on Commonwealth v. Setzer, 392 A.2d
772 (Pa. Super. 1978) (holding that defendant’s claim for return of property pursuant
to Pa.R.Crim.P. 324 (now Rule 588) was waived because it was not raised until two
years after his conviction), the trial court dismissed the appellant’s motion, and the
appellant appealed to this Court. Unlike the trial court, this Court declined to follow
Setzer, reasoning that “forfeiture proceedings and proceedings for the return of
property are not criminal proceedings[,]” “[a] return of property motion is often

       10
          By order dated November 13, 2017, this Court precluded Mr. Ryan from filing a brief
because of his failure to comply with the deadline for filing a brief established in this Court’s order
of October 18, 2017.
       11
          Rule 588(A) provides as follows:

       A person aggrieved by a search and seizure, whether or not executed pursuant to a
       warrant, may move for the return of the property on the ground that he or she is
       entitled to lawful possession thereof. Such motion shall be filed in the court of
       common pleas for the judicial district in which the property was seized.

Pa.R.Crim.P. 588(A).



                                                  6
raised in a civil forfeiture proceeding” and “the progress of an ancillary criminal
proceeding, if any, may not be relevant.” Allen, 59 A.3d at 679 (internal quotation
marks omitted). After rejecting the application of a 30-day limitations period, we
proceeded to review potentially applicable statutes of limitations, such as Section
5524(3) of the Judicial Code, 42 Pa. C.S. § 5524(3),12 but found that none of them
applied. Allen, 59 A.3d at 680-81. Since there was “no specific limitation period
established by rule or law for the filing of a motion for return of property,” this Court
concluded that “the residual six-year statute of limitations in 42 Pa. C.S. § 5527(b)
is the one to apply.” Id. at 681. This Court then concluded that the appellant’s
motion was properly dismissed as untimely because it was filed more than six years
after his criminal case concluded. Id.
       On appeal, the Pennsylvania Supreme Court affirmed but on different
grounds. The Supreme Court concluded that Rule 588(A) did apply and that a
criminal defendant must file a motion for the return of property while the trial court
retains jurisdiction, which is up to 30 days after disposition. Allen II, 107 A.3d at
716-17. Since the appellant did not file his motion within that time period, his claim
was not time-barred, but waived. Id. at 717. The Supreme Court emphasized,
however, that its holding was “limited to the factual circumstances presented” and
that it had “not attempted to define the timing pertaining to other circumstances.”
Id. at 717 n.10.
       Here, as the Township notes, criminal charges were never filed against Mr.
Ryan, and, thus, there would have been no jurisdictional basis upon which he could


       12
          Under Section 5524(3), “[a]n action for taking, detaining or injuring personal property,
including actions for specific recovery thereof” is required to be “commenced within two years.”
42 Pa. C.S. § 5524(3).



                                                7
have moved for the return of his property pursuant to Rule 588(A).13 Therefore, our
Supreme Court’s analysis in Allen II does not control here. Nevertheless, while
Allen II does not control, this does not mean, as common pleas concluded, that no
statute of limitations applies. See Blackwood, Inc. v. Reading Blue Mountain & N.
R.R. Co., 147 A.3d 594, 600 (Pa. Super. 2016) (stating that “the fact that the
legislative provision itself does not contain a statute of limitations for a cause of
action . . . does not mean there is no applicable statute of limitations[,]” for such a
“result would be contrary to logic and fairness”). In fact, as previously discussed,
the Supreme Court in Allen II did not purport to address the timing for seeking the
return of property in other circumstances, including in civil proceedings. Allen II,
107 A.3d at 717 n.10. Thus, as we did in Allen, we look here to other potentially
applicable statutes of limitations. Allen, 59 A.3d at 680. Section 5524(3) of the
Judicial Code, which has a two-year time limitation, does not apply because such a
tort claim cannot be filed “against the Commonwealth or a local government.” Allen,
59 A.3d at 680-81. Aware of no other period of limitations that might apply, we
turn to the residual catchall statute of limitations, that is, Section 5527(b) of the
Judicial Code. Section 5527(b) provides, “[a]ny civil action or proceeding which is
neither subject to another limitation specified in this subchapter nor excluded from
the application of a period of limitation by section 5531[14] (relating to no limitation)



       13
           We note, however, that with respect to the guns, once a physician found that Mr. Ryan
was “severely mentally disabled . . . and in need of immediate treatment,” 50 P.S. § 7302(b), he
was prohibited from possessing or using a gun under Section 6105(c)(4) of the Uniform Firearms
Act, 18 Pa. C.S. § 6105(c)(4). Mr. Ryan does not claim that the police had no basis for seizing the
items identified in the Petition.
        14
           Section 5531 of the Judicial Code provides as follows:




                                                8
must be commenced within six years.” 42 Pa. C.S. § 5527(b). As we have outlined,
this proceeding is not “subject to another limitation specified in this subchapter.” Id.
Nor is it “excluded from the application of a period of limitation by section 5531,”
as none of the actions identified in Section 5531 are at issue here. Id. Therefore,
under the plain language of Section 5527(b), it applies to this proceeding.                     The
proceeding here was commenced more than 13 years after the Township seized the
items identified in the Petition, which is beyond the period of limitations identified
in Section 5527(b), making this proceeding untimely.
       “The case at bar is an apt example of the logistical difficulties that arise from
a delayed challenge” – memories fade, witnesses disappear, and evidence is lost or
destroyed. Pfeifer v. Westmoreland Cty. Tax Claim Bureau, 127 A.3d 848, 855 (Pa.
Cmwlth. 2015). At the hearing, Mr. Ryan represented through Counsel that there
was a prior order not to destroy the weapons; however, there was no such order and,
in fact, the items identified in the Petition have now been destroyed. (Hr’g Tr. at 5-
8, R.R. at 56a-59a.) These circumstances, as is often the case with “stale claims,”

       The following actions and proceedings may be commenced at any time
       notwithstanding any other provision of this subchapter except section 5521
       (relating to limitations on foreign claims):

              (1) An action against an attorney at law by or on behalf of a client to enforce
                  any implied or resulting trust as to real property.
              (2) An action by the Commonwealth, a county or an institution district
                  against the real or personal property of persons who were public
                  charges, including mental patients, to recover the cost of their
                  maintenance and support.
              (3) An action by the Commonwealth, a county or an institution district
                  against the real or personal property of persons who were legally liable
                  to pay for the maintenance and support of persons who were public
                  charges, including mental patients, to recover the cost of their
                  maintenance and support.

42 Pa. C.S. § 5531.


                                                9
would greatly hamper the Township in its defense against Mr. Ryan’s claim. Ins.
Co. of N. Am. v. Carnahan, 284 A.2d 728, 729 (Pa. 1971) (“The purpose of any
statute of limitations is to expedite litigation and thus discourage delay and the
presentation of stale claims which may greatly prejudice the defense of such
claims.”).
       Therefore, we conclude that Section 5527(b), the residual catchall statute of
limitations, applies to this proceeding because this proceeding is not excluded from
a period of limitation and there is no other applicable statute of limitations. This
proceeding was commenced beyond the six-year time limitation contained in Section
5527(b), making it time-barred. Accordingly, we reverse the Order and dismiss the
Petition.15



                                              _____________________________________
                                              RENÉE COHN JUBELIRER, Judge



Judge Fizzano Cannon did not participate in the decision in this case.




       15
            In light of our determination, we do not address the Township’s remaining contentions.


                                                10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Return of Personal Property      :
                                        :
Appeal of: Commonwealth of              :   No. 645 C.D. 2017
Pennsylvania, by and through            :
Township of Upper Darby                 :


                                     ORDER


      NOW, March 22, 2018, the Order of the Court of Common Pleas of Delaware
County, dated March 16, 2017, in the above-captioned matter, is hereby
REVERSED, and the Petition for Return of Personal Property is DISMISSED.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
