          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Morris Barren,                   :
                                       : No. 2287 C.D. 2015
                          Appellant    : Submitted: June 10, 2016
                                       :
                    v.                 :
Pennsylvania State Police, Trooper     :
Wesley Berkebile, Trooper Sergeant     :
Anthoney DeLuca, Trooper Mike          :
Schmidt, Trooper John A. Litchko,      :
Trooper Michael J. Volk, Trooper       :
Stuart Frome, Office of the Attorney   :
General Asset Forfeiture and Money     :
Laundering Section, A.G. Gerald J.     :
Pappert, Deputy A.G. Jesse D.          :
Pettit, D.A. Lisa Lazzari-Strasler,    :
Allegheny County,                      :
Pa., Wilkins Township Police Dept.,    :
Wilkinsburg Police Dept., Office of    :
the D.A. of Allegheny County,          :
Pennsylvania Office of the Attorney    :
General, Sergeant Randy Lamb,          :
Officer Albert Stanonik, Officer David :
Brokaw, Agent Fran Speranza, Agent :
Rick Bosco, Detective Charles Knox, :
A.D.A. Thomas T. Swan, Judge Robert :
Colville, Judge Philip A. Ignelzi,     :
Judge Kate Ford Elliot, Judge Susan    :
Peikes Gantman,                        :
Judge Jacqueline O. Shogan,            :
Individually and in their              :
official capacities                    :

BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY
SENIOR JUDGE FRIEDMAN                            FILED: September 27, 2016
               David Morris Barren appeals, pro se, from the October 20, 2015, order
of the Court of Common Pleas of Allegheny County (trial court) dismissing Barren’s
complaint (Complaint) as frivolous under Pa. R.C.P. No. 240(j)(1)1 and dismissing
his request to proceed in forma pauperis as moot. We affirm in part, vacate in part,
and remand for further proceedings.


               On March 4, 2003, police searched a hotel room occupied by Barren in
Wilkins Township, resulting in the seizure of United States currency, a money
counter, and a heat sealer. (Compl. ¶¶ 91, 106.) Barren was released from custody
the same day without being charged with any offense. (Id. ¶ 102.) On March 12,
2003, the trial court ordered forfeiture of the seized property. (Id. ¶¶ 106-07.) On
March 13, 2003, the trial court entered an amended order, changing the amount of the
forfeited United States currency from $62,055 to $62,105. (Id. ¶¶ 106, 108.)


               On February 11, 2004, Barren was arrested following a vehicle stop on
the Pennsylvania Turnpike in Somerset County, which resulted in the seizure of
$67,709 in United States currency and various jewelry. (Id. ¶¶ 17, 26, 139.) The
criminal charges against Barren were dismissed on February 20, 2004. (Id. ¶ 30.)


               On June 17, 2004, the Commonwealth filed a petition for forfeiture of
the property seized on February 11, 2004, in the Court of Common Pleas of Somerset
      1
          Pa. R.C.P. No. 240(j)(1) provides:

              If, simultaneous with the commencement of an action or proceeding or the
      taking of an appeal, a party has filed a petition for leave to proceed in forma
      pauperis, the court prior to acting upon the petition may dismiss the action,
      proceeding or appeal if . . . [the court] is satisfied that the action, proceeding or
      appeal is frivolous.

                                               2
County (Somerset County), which was granted on December 14, 2004. (Id. ¶¶ 31,
41.) On December 28, 2011, Barren filed a motion in Somerset County seeking
return of the property seized on February 11, 2004, which was denied on April 22,
2015, as untimely. (Id. ¶¶ 42, 56.)


               Also on December 28, 2011, Barren filed a motion in the trial court
seeking the return of the property seized on March 4, 2003. (Id. ¶ 114.) The trial
court denied the motion on October 26, 2012, as untimely. (Id. ¶ 117.)


               Barren appealed the trial court’s October 26, 2012, order to the
Pennsylvania Superior Court, which affirmed. In its opinion, the Superior Court
concluded that under Commonwealth v. Allen, 59 A.3d 677, 681 (Pa. Cmwlth. 2012)
(en banc), affirmed on other grounds, 107 A.3d 709 (Pa. 2014),2 Barren’s motion for
return of property was barred by the residual six-year statute of limitations in section
5527(b) of the Judicial Code, 42 Pa. C.S. §5527(b). Commonwealth v. Sixty Eight
Thousand Nine Hundred Fifty Dollars in U.S. Currency (No. 1857 WDA 2012, Pa.
Super. filed Nov. 15, 2013), slip op. at 4, aff’d without op., 91 A.3d 1287 (Pa. 2013).
The Superior Court found that Barren had six years from the date of the March 12,
2003, forfeiture order, or until March 12, 2009, to file a motion for return of property.



       2
          After the Superior Court’s decision in this case, the Pennsylvania Supreme Court expressly
rejected this court’s reasoning in Allen. See Commonwealth v. Allen, 107 A.3d 709 (Pa. 2014). In
Allen, the Supreme Court held that this court erred in relying “on a statute of limitations analysis to
resolve the timeliness” of Allen’s motion for return of property. Id. at 718. Instead, the Supreme
Court concluded “that [Allen’s] failure to file a return motion during the pendency of the criminal
charges against him or within thirty days following dismissal of the charges result[ed] in waiver,
precluding review of his stand-alone return petition.” Id. Thus, although the Supreme Court
rejected this court’s reasoning, it nonetheless affirmed our disposition. Id.

                                                  3
Id., slip op. at 4-5. Therefore, the Superior Court concluded that Barren’s motion
filed on June 26, 2012, was “patently untimely.” Id., slip op. at 5.


              On July 23, 2015, Barren filed his Complaint in the trial court against 32
defendants, including, inter alia, the Pennsylvania State Police, the Pennsylvania
Office of Attorney General, and various Pennsylvania state troopers (together,
Commonwealth Appellees); the Office of District Attorney of Allegheny County, the
Wilkins Township Police Department, the Wilkinsburg Police Department, and
various local police officers (together, Local Appellees); and various court of
common pleas and Pennsylvania Superior Court judges (together, Judicial
Appellees). In his Complaint, Barren asserts violations of his due process rights
under the United States and Pennsylvania Constitutions on the basis that he did not
receive notice of the 2003 and 2004 forfeiture proceedings. Barren also asserts
claims for abuse of process, breach of fiduciary duty, fraud, invasion of privacy, false
imprisonment, and emotional distress. On July 27, 2015, Barren filed a petition for
leave to proceed in forma pauperis.


              On October 20, 2015, the trial court sua sponte dismissed Barren’s
Complaint as frivolous and dismissed his petition to proceed in forma pauperis as
moot,3 concluding that “[a]ll of [Barren’s] claims are time-barred under 42 Pa. C.S.A.
[sic] § 5524 and/or 5527, or otherwise fail to state a claim.” (Trial Ct. Op. at 2-3.)
The trial court also found that Barren’s claims relating to the March 12, 2003,
forfeiture were barred by the doctrine of res judicata because they had already been
litigated in the Superior Court. (Id. at 3 (citing Superior Court’s memorandum
       3
        The trial court dismissed this matter before Barren had effectuated service on any of the
defendants. (See Amicus Br. at 6 n.1.)

                                               4
opinion).) Finally, the trial court concluded that Barren’s claims against the Judicial
Appellees were barred by the doctrine of judicial immunity. (Id.) Barren now
appeals to this court.4


               Barren asserts that the trial court erred in dismissing his Complaint as
frivolous for failure to state a claim. We agree, but only with regard to Barren’s due
process claims against the Commonwealth and Local Appellees.


               Under Pa. R.C.P. No. 240(j)(1), the trial court may dismiss an action
filed in connection with a petition to proceed in forma pauperis “if it is satisfied that
the action, proceeding or appeal is frivolous.” An action is frivolous if it “‘lacks an
arguable basis either in law or in fact.’” Note to Pa. R.C.P. No. 240(j)(1) (citation
omitted). Thus, an action may be dismissed as frivolous under Pa. R.C.P. No.
240(j)(1) if, on its face, it fails to “set forth a valid cause of action.” Jones v. Doe,
126 A.3d 406, 408 (Pa. Cmwlth. 2015).


               With regard to the 2004 forfeiture, Barren avers:

               31. Unbeknownst to the Plaintiff, on June 17, 2004, the
               Commonwealth filed a “Petition for Forfeiture and
               Condemnation” of his property.

                                                ***

               35. The “Petition for Forfeiture and Condemnation” and
               “Rule to Show Cause” filed [on] June 17, 2004, were never
               served on the Plaintiff.

       4
         Our scope of review of an order dismissing an action under Pa. R.C.P. No. 240(j)(1) is
whether “constitutional rights have been violated and whether the trial court abused its discretion or
committed an error of law.” Jones v. Doe, 126 A.3d 406, 408 n.3 (Pa. Cmwlth. 2015).

                                                  5
             36. The Plaintiff was never served “notice” of the
             Commonwealth’s forfeiture.

                                         ***
             41. On December 14, 2004, an Order of Court was signed
             granting the Commonwealth “Forfeiture by Default,” of the
             Plaintiff’s property.

             42. Having no knowledge [that] my property had been
             forfeited, Plaintiff filed a “Motion for Return of Property”
             on December 28, 2011[] . . . .

                                         ***

             50. Attached as an exhibit to the Commonwealth’s
             Response filed on November 7, 2013, was [a] copy of [its]
             “Petition For Forfeiture And Condemnation,” its supporting
             “Affidavit,” the “Rule To Show Cause,” and the “Order of
             Court” dated December 14, 2004, granting forfeiture.

             51. Upon receipt of the Commonwealth’s “Response,” that
             is when Plaintiff [discovered] his property had been
             forfeited.

(Compl. ¶¶ 31, 35-36, 41-42, 50-51.) Barren further alleges that the forfeiture of his
property without notice and an opportunity to be heard violated his procedural due
process rights. (Compl. ¶¶ 63, 127.)


             Section 6802(b) of the act commonly known as the Controlled
Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §6802(b), provides that a
party seeking forfeiture “shall” serve a copy of the petition “personally or by certified
mail on the owner or upon the person or persons in possession at the time of the
seizure.” Section 6802(j) of the Forfeiture Act also provides for a hearing in which
the property owner can respond to the Commonwealth’s evidence. 42 Pa. C.S.
§6802(j). Our Supreme Court has recognized that “notice and [an] opportunity to be

                                           6
heard are integral to forfeiture proceedings.” Commonwealth v. Mosley, 702 A.2d
857, 860 (Pa. 1997). Absent these procedural safeguards, we “cannot assume that the
defendant would have acquiesced to the forfeiture proceedings.” Commonwealth v.
Smith, 757 A.2d 354, 359 (Pa. 2000); see also Commonwealth v. One (1) 1993
Pontiac Trans AM, 809 A.2d 444, 446 (Pa. Cmwlth. 2002) (stating that because civil
forfeitures are not favored, the Forfeiture Act’s provisions “must be strictly
construed”).


               With regard to the 2003 forfeiture, Barren avers:

               109. The Order of Court from March 12, 2003, fails to
               express that the Plaintiff is the Claimant, i.e.--the only party
               who could legally consent to such a forfeiture.
               110. That Order of Court is absent a signature of any
               Claimant[] or consenting party.
               111. The amending Order of Court from March 13, 2003[]
               . . . expresses that a “John Doe,” an unknown party, was the
               aggrieved or consenting party. That is not true.
               112. The Plaintiff was unaware of the forfeiture proceeding
               on March 12, 2003, and the amending of such on March 13,
               2003.

               113. The Plaintiff was not represented by Ralph Karsh,
               Esquire, in either proceeding concerning the forfeiture of
               his property.

               114. Plaintiff initiated court action for “Return of Property”
               in the Court of Common Pleas on or about December 28,
               2011.

               115. . . . [O]n or about May 28, 2013, [the Plaintiff]
               belatedly discovered the amending Order of Court . . . .
                                            ***

                                              7
              118. [The trial court] affirmed the forfeiture of [Plaintiff’s]
              property pursuant to a consent agreement, despite the fact
              that[] [Plaintiff] was not present; had no knowledge of the
              proceedings; did not sign the agreement; and the agreement
              expressed that [Plaintiff] was “John Doe.”

(Compl. ¶¶ 109-115, 118.)


              Here, the trial court found that Barren’s claims relating to the March
2003 forfeiture were previously litigated and, thus, barred by res judicata. However,
the only issue addressed in the Superior Court’s November 15, 2013, opinion was the
timeliness of Barren’s motion for return of property. The Superior Court did not
address Barren’s due process claims relating to his alleged lack of notice of the
March 2003 forfeiture proceedings. It is well settled that “a proceeding for return of
property [under Pa. R. Crim. P. 588] is distinct from a forfeiture proceeding [under
the Forfeiture Act].” Mosley, 702 A.2d at 859; see Commonwealth v. Johnson, 931
A.2d 781, 783 (Pa. Cmwlth. 2007). As discussed supra, forfeiture proceedings
require notice and an opportunity to be heard before a person can be deprived of his
or her property. Barren alleges that he had no notice of the March 2003 forfeiture
and neither consented to the forfeiture nor authorized Ralph Karsh, Esquire, to
consent to the forfeiture on his behalf.


              We cannot conclude, based on the allegations in the Complaint, that
Barren’s due process claims relating to the 2003 and 2004 forfeiture proceedings lack
an arguable basis in law or in fact.5 Therefore, the trial court erred in dismissing
these claims as frivolous under Pa. R.C.P. No. 240(j)(1).

       5
          The trial court did not specifically address Barren’s due process claims relating to the
forfeiture proceedings. Instead, the trial court found that all of his claims were time-barred by
(Footnote continued on next page…)
                                                8
               With regard to Barren’s claims against the Judicial Appellees, however,
we agree with the trial court that they are barred by the doctrine of judicial immunity.
It is well settled that judges have absolute immunity for their “judicial acts, even if
their actions are in error or performed with malice, provided there is not a clear
absence of all jurisdiction over subject matter and person.” Beam v. Daihl, 767 A.2d
585, 586 (Pa. Super. 2001); see Guarrasi v. Scott, 25 A.3d 394, 405 n.11 (Pa.
Cmwlth. 2011). The allegations in Barren’s Complaint do not demonstrate that the
Judicial Appellees acted without subject matter or personal jurisdiction. Because
Barren’s claims against the Judicial Appellees are barred by judicial immunity, they
are frivolous.6


               Accordingly, we affirm that portion of the trial court’s order dismissing
Barren’s claims against the Judicial Appellees as frivolous. We vacate the remainder
of the trial court’s order and remand for the reinstatement of Barren’s due process
claims against the Commonwealth and Local Appellees based on Barren’s alleged



(continued…)

sections “5524 and/or 5527” of the Judicial Code. (Trial Ct. Op. at 2-3.) Section 5524(5) of the
Judicial Code provides that “[a]n action upon a statute for a civil penalty or forfeiture” shall be filed
within two years. 42 Pa. C.S. §5524(5). However, the two-year statute of limitations applies to
forfeiture actions commenced by the Commonwealth. Section 5527 of the Judicial Code contains
the residual six-year limitations period, which this court held applied to motions for return of
property in Allen, 59 A.3d at 681. As explained in footnote 3, however, the Supreme Court rejected
the application of a statute-of-limitations analysis to motions for return of property. Allen, 107 A.3d
at 718. In any event, Barren’s Complaint does not challenge the denial of his motions for return of
property as untimely.

       6
         We also conclude that Barren’s tort claims against the Commonwealth and Local
Appellees, all of which relate to events that occurred in 2003 and 2004, are time-barred. See 42 Pa.
C.S. §§5523, 5524.

                                                   9
lack of notice of the 2003 and 2004 forfeiture proceedings. The trial court shall also
reinstate Barren’s petition for leave to proceed in forma pauperis.




                                       __________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge


Judge McCullough did not participate in the decision of this case.




                                          10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Morris Barren,                   :
                                       : No. 2287 C.D. 2015
                          Appellant    :
                                       :
                    v.                 :
Pennsylvania State Police, Trooper     :
Wesley Berkebile, Trooper Sergeant     :
Anthoney DeLuca, Trooper Mike          :
Schmidt, Trooper John A. Litchko,      :
Trooper Michael J. Volk, Trooper       :
Stuart Frome, Office of the Attorney   :
General Asset Forfeiture and Money     :
Laundering Section, A.G. Gerald J.     :
Pappert, Deputy A.G. Jesse D.          :
Pettit, D.A. Lisa Lazzari-Strasler,    :
Allegheny County,                      :
Pa., Wilkins Township Police Dept.,    :
Wilkinsburg Police Dept., Office of    :
the D.A. of Allegheny County,          :
Pennsylvania Office of the Attorney    :
General, Sergeant Randy Lamb,          :
Officer Albert Stanonik, Officer David :
Brokaw, Agent Fran Speranza, Agent :
Rick Bosco, Detective Charles Knox, :
A.D.A. Thomas T. Swan, Judge Robert :
Colville, Judge Philip A. Ignelzi,     :
Judge Kate Ford Elliot, Judge Susan    :
Peikes Gantman,                        :
Judge Jacqueline O. Shogan,            :
Individually and in their              :
official capacities                    :

                                    ORDER


            AND NOW, this 27th day of September, 2016, we hereby affirm that
portion of the October 20, 2015, order of the Court of Common Pleas of Allegheny
County (trial court) dismissing David Morris Barren’s claims against Judges Robert
Colville, Philip A. Ignelzi, Kate Ford Elliot, Susan Peikes Gantman, and Jacqueline
O. Shogan as frivolous; vacate the remainder of the trial court’s order; and remand
this matter to the trial court for further proceedings consistent with the foregoing
opinion.


            Jurisdiction relinquished.



                                         __________________________________
                                         ROCHELLE S. FRIEDMAN, Senior Judge




                                          2
