IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. :

:

Neighbor’s First Federal Credit Union :

Check in the Amount of $76,389.27; :

$1,659.00 US Currency; Ruger :

Superhawk .44 Magnum, S/N 82-85672; :

Remington 788, S/N 6004206; Intratec :

Tec 9 W/Magazine, S/N B6404558; :

Winchester 9422, S/N F380992; Mak-90:

Sporter W/High Capacity Drum :

Magazine, S/N 9345534 and Flite :

King 20 Gauge, S/N K-200 :

: No. 97 C.D. 2015

Appeal of: Stephen Shifler : Submitted: January 29, 2016

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY

SENIOR JUDGE PELLEGRINI FILED:

Stephen Shifler (Shifler) appeals an order of the Court of Common 

Pleas of the 39th Judicial District of Pennsylvania—Franklin County Branch (trial 

court) denying his emergency motion to vacate the default judgment entered 

against him which ordered condemnation and forfeiture of certain property seized 

from Shifler’s residence during the execution of a search warrant pertaining to his 

alleged unlawful distribution of marijuana. For the reasons that follow, we reverse 

the trial court’s order and remand this matter for further proceedings.
2

I.

On January 11, 2013, the Commonwealth executed a search warrant 

on Shifler’s residence during which it seized $1,659.00 in United States currency, 

seven firearms,

1

and a statement from Neighbor’s First Federal Credit Union 

indicating that Shifler’s account had in excess of $70,000.00. Five days later, the 

Commonwealth seized $76,389.27 from his bank account pursuant to a search 

warrant.

On March 18, 2013, pursuant to Section 6801(a) of the Controlled 

Substances Forfeiture Act (Act),2the Commonwealth filed a petition for forfeiture

and condemnation, containing the following notice:

 

1

The firearms include the following: a Ruger Superhawk .44 Magnum, S/N 82-85672; 

Remington 788, S/N 6004206; Intratec Tec 9 W/Magazine, S/N B6404558; Winchester 9422, 

S/N F380992; Mak-90 Sporter with high capacity drum magazine, S/N 9345534; and Flite King 

20 Gauge, S/N K-200.

2

Section 6801(a) of the Forfeiture Act provides, in pertinent part:

(a) Forfeitures generally.--The following shall be subject to 

forfeiture to the Commonwealth and no property right shall exist in 

them:

* * *

(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, [Act of 

April 14, 1972, P.L. 233, as amended, 35 P.S. 780-101–780-144,]

and all proceeds traceable to such an exchange.

(Footnote continued on next page...)
3

NOTICE TO ANSWER PETITION FOR 

FORFEITURE AND CONDEMNATION

TO THE CLAIMANT OF WITHIN DESCRIBED 

PROPERTY: YOU ARE REQUIRED TO FILE AN 

ANSWER TO THIS PETITION, SETTING FORTH 

YOUR TITLE IN, AND RIGHT TO POSSESSION OF, 

SAID PROPERTY WITHIN THIRTY (30) DAYS 

FROM THE SERVICE HEREOF, AND YOU ARE 

ALSO NOTIFIED THAT, IF YOU FAIL TO FILE 

SAID ANSWER, A DECREE OF FORFEITURE AND 

CONDEMNATION WILL BE ENTERED AGAINST 

SAID PROPERTY.

(Reproduced Record [R.R.] at 22a.)

 

(continued...)

(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.

* * *

(7) Any firearms, including, but not limited to, rifles, 

shotguns, pistols, revolvers, machine guns, zip guns or any type of 

prohibited offensive weapon, as that term is defined in 18 Pa.C.S. 

(relating to crimes and offenses), which are used or intended for 

use to facilitate a violation of The Controlled Substance, Drug, 

Device and Cosmetic Act. Such operable firearms as are found in 

close proximity to illegally possessed controlled substances shall 

be rebuttably presumed to be used or intended for use to facilitate a 

violation of The Controlled Substance, Drug, Device and Cosmetic 

Act. All weapons forfeited under this section shall be immediately 

destroyed by the receiving law enforcement agency.

42 Pa. C.S. §6801(a).
4

The petition stated that on December 19, 2012, a confidential 

informant purchased a quarter pound of marijuana from Laura Hade (Hade) for 

$800.00 in official funds. Specifically, it averred that Hade drove the confidential 

informant to Shifler’s residence, went into the residence with the informant’s 

money while the informant waited in the vehicle, quickly returned to the vehicle, 

and handed the informant the marijuana. Additionally, it averred that on January 

9, 2013, a confidential informant again purchased a quarter pound of marijuana 

from Hade in exchange for $800.00 in official funds. The same process ensued 

and resulted in the delivery of marijuana from Shifler’s residence to the 

confidential informant.

With regard to the bank account proceeds seized, the petition provided 

the following description:

2. The defendant/property, Neighbor’s First Federal 

Credit Union Check in the amount of $76,389.27...was 

seized by the Commonwealth, pursuant to the “Act.”

3a. The defendant/property, Neighbor’s First Federal 

Credit Union Check in the amount of $76,389.27, was 

seized at or about 11:45 AM on or about Wednesday, 

January 16, 2013.

* * *

4a. The defendant/property, Neighbor’s First Federal 

Credit Union Check in the amount of $76,389.27, was 

seized at Neighbor’s First Federal Credit Union, 127 CV 

Avenue, Waynesboro, Franklin County, Pennsylvania.

* * *
5

5. The owner of the defendant property, Neighbor’s First 

Federal Credit Union Check in the amount of 

$76,389.27...based upon all information currently 

available, is Stephen Shifler, 7946 Monn Road, 

Waynesboro, Franklin County, Pennsylvania.

6. At the time of seizure, on the date and at the place of 

seizure, hereinbefore mentioned, the defendant/property, 

Neighbor’s First Federal Credit Union Check in the 

amount of $76,389.27...was in the possession of Stephen 

Shifler, 7946 Monn Road, Waynesboro, Franklin County, 

Pennsylvania.

* * *

7d. On January 11, 2013, a search warrant was executed 

at 7946 Monn Road. Shifler was in the residence at the 

time the warrant was served, Shifler attempted to exit the 

residence through a rear bedroom window with a bag of 

marijuana. Shifler was stopped by officers and taken into 

custody. Seized from his residence were the following 

items: two (2) to three (3) pounds of marijuana, a scale, 

packaging material.... Also seized was a bank statement 

from Neighbor’s First Federal Credit Union indicating 

Shifler's account had an excess of $70,000.00.

e. On January 16, 2013, a search warrant was served on 

Neighbor’s First Federal Credit Union for Shifler’s 

accounts with that banking institution.

8. The defendant/property, $76,389.27...was 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, or, are 

proceeds traceable to such an exchange, or were used or 

intended to be used to facilitate any violation of said Act, 

or are otherwise subject to forfeiture under the “Act.”

(R.R. at 23a–27a.)
6

On March 20, 2013, the trial court issued a rule to show cause upon 

Shifler, specifically stating “Failure to Answer this Petition within 30 days of 

service hereof will result in an Order of Forfeiture being entered against said 

property, any law or rule of Court to the contrary notwithstanding.” (Id. at 29a.) 

The forfeiture petition and the rule to show cause were not served upon Shifler 

until over a year later—on June 10, 2014—when the Commonwealth personally 

served him with the rule, with the forfeiture petition attached.

After Shifler failed to respond to the petition, on July 22, 2014, the 

Commonwealth filed a motion for order of forfeiture attaching an affidavit in 

which a Senior Deputy Attorney General stated that Shifler was personally served 

on June 10, 2014.3 By order filed on July 30, 2014, the trial court ordered that the 

subject property be forfeited to the Office of the Attorney General.

The next day, on August 1, 2014, Shifler filed an answer to the 

petition and a counterclaim, denying that the subject property was subject to the 

Forfeiture Act, asserting that “[t]he alleged illegal activities giving rise to the 

Commonwealth’s forfeiture action at the above-captioned docket are the exact 

same allegations which gave rise” to another forfeiture action involving Shifler’s 

real property which was previously filed at Docket No. CP-28-MD-152-2013,4and 

claiming that the Commonwealth’s delay in bringing the instant action pertaining 

 

3

The motion was served upon Shifler and his counsel.

4 After Shifler filed an answer and new matter at that docket number, the Commonwealth 

withdrew its petition.
7

to his personal property violated Section 6802(b) of the Forfeiture Act.5 (R.R. at 

65a66a.) On August 8, 2014, he filed an emergency motion to set aside order of 

forfeiture (emergency motion) on the bases that: (1) the order violated Shifler’s 

due process rights because he was denied a hearing and an opportunity to be heard 

before his property was forfeited; (2) the Commonwealth did not effectuate proper 

service under the Pennsylvania Rules of Civil Procedure because Shifler was 

served with process, if at all, more than 30 days after the Commonwealth filed its 

forfeiture petition; (3) the petition did not properly describe the property it 

intended to forfeit; and (4) the Commonwealth sought forfeiture in bad faith.

 

5

Section 6802(b) of the Forfeiture Act pertains to the procedure to follow with respect to 

seized property and provides:

(b) Notice to property owners.--A copy of the petition required 

under subsection (a) shall be served personally or by certified mail 

on the owner or upon the person or persons in possession at the 

time of the seizure. The copy shall have endorsed a notice, as 

follows:

To the Claimant of within Described Property: You are 

required to file an answer to this petition, setting forth your title in, 

and right to possession of, said property within 30 days from the 

service hereof, and you are also notified that, if you fail to file said 

answer, a decree of forfeiture and condemnation will be entered 

against said property.

The notice shall be signed by the Attorney General, Deputy 

Attorney General, district attorney, deputy district attorney or 

assistant district attorney.

42 Pa. C.S. §6802(b).
8

In response, the Commonwealth submitted a letter dated December 

11, 2013, which Senior Deputy Attorney General Stewart sent to Joseph D. 

Caraciolo, Shifler’s counsel, directing counsel’s attention to Docket No. CP-28-

MD-152-2013 and requesting that he review the proposed stipulation and 

agreement (stipulation) which was attached. The proposed stipulation identified 

the seized property which is the subject of this action and the date on which it was 

seized, acknowledged that the property was subject to the Forfeiture Act, waived

Shifler’s right to a hearing, and agreed to discontinue the Lis Pendens action filed 

against the real property situated at 7946 Monn Drive, Waynesboro, Pennsylvania, 

which was the subject of the previously filed action. The proposed stipulation was 

not returned or further discussed amongst counsel.

Ultimately, the trial court denied Shifler’s emergency motion.

Treating it as a petition to open a default judgment, the trial court reasoned that 

although the petition was promptly filed, Shifler offered no reasonable explanation 

for his failure to respond to the forfeiture petition because the stipulation regarding 

the case was sent to Shifler and his counsel in December 2013 alerting them to its 

existence, and Shifler was personally served with the petition on June 10, 2014. 

Regarding a meritorious defense, the trial court noted:

[i]n neither his Answer to [the Commonwealth]’s Motion 

for Order of Forfeiture and Counter-Claim, nor in his 

Emergency Motion, does Shifler contend that the seizure 

was unlawful or that the property is not subject to 

forfeiture under the Act. That is, Shifler does not argue 

that he is entitled to relief on the merits. Rather, he 

identifies purported procedural defects in the filings.
9

(11/19/14 Trial Court Opinion, at 3.) Nonetheless, with respect to the alleged 

procedural defects, the trial court determined that the Pennsylvania Rules of Civil 

Procedure did not apply to forfeiture actions, the forfeiture petition sufficiently 

described the seized property, and the Commonwealth did not act in bad faith or 

otherwise violate Shifler’s due process rights.

On the same date that the trial court issued its order, our Supreme 

Court rendered its decision in Commonwealth v. All that Certain Lot or Parcel of 

Land Located at 605 University Drive, 104 A.3d 411 (Pa. 2014), a case upon 

which Shifler relied on in his statement of errors complained of on appeal and in 

the instant appeal. In that case, our Supreme Court held that although the 

Forfeiture Act provides for a hearing if a property owner asserts a claim that the 

property cannot be forfeited, 42 Pa. C.S. §6802(i), a hearing was not necessary 

because the procedure set forth in the Forfeiture Act was supplemented by the 

Rules of Civil Procedure. In so holding, it stated:

[T]he Rules [of Civil Procedure] apply to compensate for 

the procedural gaps in the Forfeiture Act and to facilitate 

the orderly, fair, and efficient course of proceedings and 

disposition of the matter. In such circumstances, 

applying the Rules of Civil Procedure to forfeiture 

proceedings will provide guidance and regulate practice, 

supplying a fair and efficient methodology for resolution 

of any procedural issue that arises and is not addressed 

by the Forfeiture Act itself.

605 University Drive, 104 A.3d at 427.
10

In response, the trial court issued an opinion pursuant to Pennsylvania 

Rule of Appellate Procedure 1925(a), explaining that even if the Rules of Civil 

Procedure were applied to Shifler’s forfeiture action as per 605 University Drive, 

the same outcome resulted. Although the trial court agreed with Shifler that in 

light of 605 University Drive, the Commonwealth failed to serve original process 

of its forfeiture petition within the requisite 30 days under the Pennsylvania Rules 

of Civil Procedure, it emphasized that it has discretion to overlook late service 

where no prejudice results and that, in this instance, Shifler failed to allege 

prejudice. Further, it rejected Shifler’s contention that under Pennsylvania Rule of 

Civil Procedure No. 237.1, the Commonwealth was required to provide Shifler ten

days’ notice before seeking a default judgment. It so found that 42 Pa. C.S. 

§6802(b) creates a procedure for default specific to forfeiture actions and does not 

require the Commonwealth to file any procedural prerequisites before the court is 

authorized to enter default judgment. In all other respects, the trial court relied on 

its previously filed opinion.

II.

On appeal,6Shifler contends that the trial court erred in denying his

emergency motion based upon numerous procedural deficiencies. At the outset, 

 

6

This appeal was transferred to the Commonwealth Court from the Superior Court by per 

curiam order dated January 28, 2015. We review a decision granting a forfeiture petition to 

determine “whether the findings of fact made by the trial court are supported by competent 

evidence and whether the trial court abused its discretion or committed an error of law.” 

Commonwealth v. Marshall, 698 A.2d 576, 578 n.2 (Pa. 1997). However, “the decision whether 

to open a default judgment is left to the sound discretion of the trial court, and absent an error of 

law or a clear manifest abuse of discretion, the trial court’s decision will not be disturbed on 

appeal.” Comyn v. Southeastern Pennsylvania Transportation Authority, 594 A.2d 857, 858 (Pa. 

Cmwlth. 1991).
11

while the trial court construed Shifler’s emergency motion as a motion to open 

judgment,

7

because it is based on his contention that the petition for forfeiture was 

improperly filed, his emergency motion should be construed as a motion to strike 

judgment. That is so because, while the former seeks to reopen the case to allow a 

defendant to assert a meritorious defense, the latter “is the remedy sought by one 

who complains of fatal irregularities appearing on the face of the record.” 

Cameron v. Great Atlantic & Pacific Tea Co., 266 A.2d 715, 717 (Pa. 1970). 

Because Shifler’s complaints attack the Commonwealth’s failure to adhere to 

various procedural rules and do not challenge the merits of the judgment, the 

motion is properly construed as a motion to strike judgment.

“The law in the Commonwealth is quite clear that a rule to strike a 

judgment can be made absolute only for a defect appearing on the face of the 

record.” Linett v. Linett, 254 A.2d 7, 10 (Pa. 1969) (internal quotation marks and 

citation omitted). As such, this Court’s review is constrained to the contents of the 

record at the time judgment was entered. Id.

A.

First, Shifler contends that the trial court erred in denying its 

emergency motion because the Commonwealth violated Pennsylvania Rule of 

Civil Procedure 401(a) in failing to serve its petition upon Shifler within 30 days of 

 

7

“It is a well-established rule that in order to grant a petition to open a default judgment, 

the following three criteria must be met: (1) the petition to open must be promptly filed; (2) 

there must be a reasonable excuse for failure to respond; and (3) a meritorious defense must be 

shown.” Comyn, 594 A.2d at 858.
12

its filing and Rule 401(b) in failing to reinstate its petition after the 30 days 

expired. Shifler asserts that under 605 University Drive, these Rules of Civil 

Procedure (Rules) apply because the Forfeiture Act is not specific regarding the 

timeline for service of original process.

In this respect, Section 6802(b) of the Forfeiture Act provides as 

follows:

(b) Notice to property owners.--A copy of the petition 

required under subsection (a) shall be served personally 

or by certified mail on the owner or upon the person or 

persons in possession at the time of the seizure. The copy 

shall have endorsed a notice, as follows:

To the Claimant of within Described Property: 

You are required to file an answer to this petition, setting 

forth your title in, and right to possession of, said 

property within 30 days from the service hereof, and you 

are also notified that, if you fail to file said answer, a 

decree of forfeiture and condemnation will be entered 

against said property.

The notice shall be signed by the Attorney General, 

Deputy Attorney General, district attorney, deputy 

district attorney or assistant district attorney.

42 Pa. C.S. §6802(b).

With regard to original service of process, Pennsylvania Rule of Civil 

Procedure 401(a) requires that process “be served within the Commonwealth 

within thirty days after the issuance of the writ or the filing of the complaint.” Pa. 

R.C.P. No. 401(a). In the event that process is not served within 30 days, “the 
13

prothonotary upon praecipe and upon presentation of the original process, shall 

continue its validity by reissuing the writ or reinstating the complaint.” Pa. R.C.P. 

No. 401(b).

Because the Forfeiture Act makes clear that personal service or 

service by certified mail is required but leaves open the timeframe in which service 

must occur, we find that a “procedural gap” exists in the Forfeiture Act with 

respect to which we must rely on the Rules to “regulate practice” and “supply[ ] a 

fair and efficient methodology for resolution.” 605 University Drive, 104 A.3d at 

42627. Indeed, Rule 401(a) does not conflict with Section 6802(b) of the 

Forfeiture Act, but merely provides the necessary detail absent in the latter 

provision.

Although judgment will not be stricken for de minimis errors or what 

amounts to merely technical violations of the Rules, see Malakoff v. Zambar, Inc., 

288 A.2d 819, 822 (Pa. 1972) (affirming the denial of a motion to strike default 

judgment where the procedural deficiency was only opposing counsel’s failure to 

endorse a notice to plead), the errors alleged in this case are significant. After 

filing its forfeiture petition in March 2013 and obtaining a rule to show cause in the 

same month, the Commonwealth took no further action with respect to its case 

until June 2014, nearly 15 months later. Although a suit is not dead merely 

because original process has not been served upon a defendant within 30 days, 

reinstatement is required and did not occur here.
14

B.

Next, Shifler argues that the trial court erred in denying his emergency 

motion because the Commonwealth did not provide him ten days’ notice of its 

intent to seek default judgment as required by Pennsylvania Rule of Civil 

Procedure 237.1(a)(2), providing:

(2) No judgment of non pros for failure to file a 

complaint or by default for failure to plead shall be 

entered by the prothonotary unless the praecipe for entry 

includes a certification that a written notice of intention 

to file the praecipe was mailed or delivered

* * *

(ii) in the case of a judgment by default, after the 

failure to plead to a complaint and at least ten days prior 

to the date of the filing of the praecipe to the party 

against whom judgment is to be entered and to the 

party’s attorney of record, if any.

Pa. R.C.P. No. 237.1(a)(2).

The Forfeiture Act, however, does not specifically provide that a 

defendant property owner be provided further notice in advance of seeking default 

judgment. Rather, at the outset, property owners must be notified:

To the Claimant of within Described Property: 

You are required to file an answer to this petition, setting 

forth your title in, and right to possession of, said 

property within 30 days from the service hereof, and you 

are also notified that, if you fail to file said answer, a 

decree of forfeiture and condemnation will be entered 

against said property.
15

Section 6802(b) of the Forfeiture Act, 42 Pa. C.S. §6802(b) (emphasis added).

The Forfeiture Act further states that after a defendant property owner 

receives a petition from the Commonwealth, the forfeiture proceeding will be 

deemed “contested” only upon the owner’s “filing of a claim for the property 

setting forth a right of possession.” Section 6802(i) of the Forfeiture Act, 42 Pa. 

C.S. §6802(i). An owner’s answer also triggers the court’s need to schedule a 

hearing, except when there are no disputed questions of fact involved, making a 

hearing unnecessary if either party files a motion for summary judgment pursuant 

to the Rules. Id. (“[T]he case shall be deemed at issue and a time shall be fixed for 

the hearing.”).

Shifler contends that Rule 237.1(a)(2) does not contradict Section 

6802(b) of the Forfeiture Act but acts to supplement the Forfeiture Act by giving 

the same notice that all other civil litigants receive before a default judgment is 

taken against a defendant. Again, he argues that “applying the Rules of Civil 

Procedure to forfeiture proceedings will provide guidance and regulate practice, 

supplying a fair and efficient methodology for resolution of any procedural issue 

that arises and is not addressed by the Forfeiture Act itself.” 605 University Drive, 

104 A.3d at 427.

In this case, Shifler was not granted a hearing because he did not 

respond to the Commonwealth’s petition, thereby rendering his case “uncontested” 

for purposes of the Forfeiture Act. Moreover, he was not provided ten days’ notice 
16

that the Commonwealth sought default against him.8 In this regard, we find that 

the Pennsylvania Rules of Civil Procedure do apply to default judgments sought 

under the Forfeiture Act, as the Forfeiture Act provides for the entry of a decree of 

forfeiture but does not specify the procedure for entering the decree.

The Commonwealth disagrees, directing our attention to Section 

6802(b)’s “mandatory” directive that if a property owner fails to respond to a 

petition within 30 days and thereby renders that petition “contested,” default 

judgment “will be entered against said property.” Section 6802(b) of the 

Forfeiture Act, 42 Pa. C.S. §6802(b) (emphasis added). It points out that the Rules 

of Civil Procedure differ in this respect, providing for a notice to defend, stating as 

follows:

You have been sued in court. If you wish to defend 

against the claims set forth in the following pages, you 

must take action within twenty (20) days after this 

complaint and notice are served, by entering a written 

appearance personally or by attorney and filing in writing 

with the court your defenses or objections to the claims 

set forth against you. You are warned that if you fail to 

do so the case may proceed without you and a judgment 

may be entered against you by the court without further 

notice for any money claimed in the complaint or for any 

other claim or relief requested by the plaintiff. You may 

lose money or property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR 

 

8

This is not to suggest that Shifler was unaware that the Commonwealth sought default 

judgment. The certificate of service on the Commonwealth’s motion for default judgment 

indicates that the same was served upon Shifler and his counsel, and they have not claimed 

otherwise.
17

LAWYER AT ONCE. IF YOU DO NOT HAVE A 

LAWYER, GO TO OR TELEPHONE THE OFFICE 

SET FORTH BELOW. THIS OFFICE CAN PROVIDE 

YOU WITH INFORMATION ABOUT HIRING A 

LAWYER.

IF YOU CANNOT AFFORD TO HIRE A LAWYER, 

THIS OFFICE MAY BE ABLE TO PROVIDE YOU 

WITH INFORMATION ABOUT AGENCIES THAT 

MAY OFFER LEGAL SERVICES TO ELIGIBLE 

PERSONS AT A REDUCED FEE OR NO FEE.

Pa. R.C.P. No. 1018.1(b) (emphasis added).

The Commonwealth reasons then that because the Forfeiture Act 

contains a mandatory provision regarding default and the Rules of Civil Procedure 

provide a permissive rule, and that conflict exists with regard to the specific 

procedure to apply, thereby taking defaults in forfeiture proceedings outside the 

ambit of the Rules. See 605 University Drive, 104 A.3d at 428. (“[T]he civil nature 

of the proceeding brings forfeiture squarely within the ambit of the Rules when 

there is no conflict with the specific procedure of the Forfeiture Act, 

notwithstanding the technical differences between a complaint and petition.”). We 

disagree.

First, our Supreme Court, in 605 University Drive, found that a 

hearing was not required by Section 6802(i) of the Forfeiture Act where a property 

owner fails to file a claim setting forth his right to possession because the Rules of 

Civil Procedure apply to forfeiture proceedings unless the application frustrates the 

Forfeiture Act’s statutory scheme. See 42 Pa. C.S. §6802(i). (“Upon the filing of a 

claim for the property setting forth a right of possession, the case shall be deemed 
18

at issue and a time shall be fixed for a hearing.”). Providing the due process 

protections set forth regarding all other civil litigation does not interfere with that 

scheme.

Second, Section 6802(b) of the Forfeiture Act does not contain a 

mandatory provision that renders it contrary to Rule 1018.1(b) as the 

Commonwealth contends. In In re Supervisor of Nether Providence Township, the 

provision at issue read, “any officer or officers failing to give the security required 

by the first section of this act within one month after his election, then his or their 

offices shall be declared vacant, and the court of quarter sessions shall appoint one 

or more who shall hold his or their office till the next election.” 64 A. 443, 444 

(Pa. 1906). That statute was previously interpreted by our Supreme Court to 

require judicial action to declare the office vacant after 30 days as opposed to the 

failure to file a bond ipso facto ousting one from office. In In re Supervisor of 

Nether Providence Township, a supervisor failed to provide the required security 

within 30 days, and citizens filed a petition claiming that the court was required to 

remove him as per the mandatory language of the provision.

Our Supreme Court disagreed, explaining that it is a settled point that:

notwithstanding the use of [an] imperative...[t]he word 

“shall,” when used by the Legislature to a court, is 

usually a grant of authority, and means “may,” and even 

if it is intended to be mandatory it must be subject to the 

necessary limitation that a proper case has been made out 

for the exercise of the power..... Where the words are 

affirmative and relate to the manner in which power or 

jurisdiction vested in a public officer or body is to be 

exercised, and not to the limits of the power or 
19

jurisdiction itself they will, in general, be so construed 

(as directory).

Id. (internal citations omitted); see also In re Nomination Papers of American 

Labor Party, 44 A.2d 48, 50 (Pa. 1945) (“Clearly the legislature intended all 

provisions of Section 977 [of the Pennsylvania Election Code, Act of June 3, 1937, 

P.L. 1333, as amended, 25 P.S. §2937,] to be mandatory. It could not, however, 

constitutionally impose upon the courts mandatory duties pertaining to the exercise 

of the judicial function.... As applied to all others, the provisions are 

mandatory.”); Tyler v. King, 496 A.2d 16, 20 (Pa. Super. 1985) (“[W]here a 

statute’s mandatory language pertains to the action of a court, it is usually a grant 

of authority.... The statute at issue here clearly concerns the power of the court, by 

presuming to oblige the court to call specified witnesses. It therefore can be 

construed on this basis alone as merely granting the court the authority to do so.”).

Here, Section 6802(b) of the Forfeiture Act does not implicate the trial 

court’s jurisdiction; rather, it only authorizes it to carry out discretionary acts—in 

this instance, to grant default judgment where appropriate. Because Rule 

1018.1(b) fills the gap of Section 6802(b) regarding the procedure to be followed 

in seeking default judgments in forfeiture proceedings, and because the two 

provisions may be construed together without contradiction, we find that Rule 

1018.1(b) applies in this context as per the Supreme Court’s ruling in 605 

University Drive.

Further, where notice of a party’s intent to seek default is not made 

clear in a separate writing, it is appropriate to strike the default judgment. See A.B. 
20

& F. Contracting Corporation v. Matthews Coal Co., 166 A.2d 317, 321 (Pa. 

Super. 1960) (affirming an order striking a default judgment where the affidavit of 

default accompanying the confession of judgment did not allege that the defendant 

has been provided ten days’ notice as agreed by the parties).9 Therefore, we find 

the Commonwealth’s violation of Rule 237.1(a)(2)(ii) an independent ground 

necessitating that the trial court’s order denying the emergency motion to strike off 

judgment be reversed.

10

Accordingly, because the record reveals fatal procedural deficiencies 

in the form of the Commonwealth’s failure to comply with Rule 401(a) and (b) and 

Rule 237.1(a)(2)(ii), the trial court’s order entering default judgment against 

Shifler is stricken, and this matter is remanded for further proceedings consistent 

with this opinion.

 

DAN PELLEGRINI, Senior Judge

Judge Brobson dissents to Part II. B only.

 

9

In A.B. & F. Contracting Corporation, the ten-day notice requirement derived from an 

agreement of the parties rather than from a Rule, as Rule 237.1(a)(2)(ii) was not adopted until 

1979. Regardless, the effect is the same: a party was deprived of the procedural notice to which 

it was entitled.

10 Because we reverse the trial court’s denial of Shifler’s emergency motion to strike 

judgment and remand the matter to the trial court, we need not address Shifler’s argument that 

the proceeds of his bank account should not have been forfeited because they were not properly 

identified in the Commonwealth’s petition insofar as it failed to reference a check number, 

intended recipient, date of check, or account number from which the check was drawn or into 

which it was deposited.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. :

:

Neighbor’s First Federal Credit Union :

Check in the Amount of $76,389.27; :

$1,659.00 US Currency; Ruger :

Superhawk .44 Magnum, S/N 82-85672; :

Remington 788, S/N 6004206; Intratec :

Tec 9 W/Magazine, S/N B6404558; :

Winchester 9422, S/N F380992; Mak-90:

Sporter W/High Capacity Drum :

Magazine, S/N 9345534 and Flite :

King 20 Gauge, S/N K-200 :

:

Appeal of: Stephen Shifler : No. 97 C.D. 2015

O R D E R

AND NOW, this 26th day of February, 2016, the order of the Court of 

Common Pleas of the 39th Judicial District of Pennsylvania—Franklin County 

Branch denying Stephen Shifler’s emergency motion to strike judgment in the 

above-referenced matter is hereby reversed, and this matter is remanded for further 

proceedings consistent with the foregoing opinion.

Jurisdiction relinquished.

 

DAN PELLEGRINI, Senior Judge