Commonwealth v. One Seven-Ton Mack Truck

5 Pa. D. & C. 233, 1924 Pa. Dist. & Cnty. Dec. LEXIS 85

Opinion

Ferguson, J.,

In this case a decree was entered on Aug. 29, 1924, forfeiting and condemning a truck because it had been used in the unlawful transportation of liquor. We have before us a rule to show cause why the decree so entered should not be opened and the alleged owner permitted to defend the action according to law.

The basis for the petition is the fact that without the knowledge or consent of the petitioner his employee had used the truck for the illegal transportation, and that petitioner had no knowledge of the proceedings to condemn until after the decree was entered.

If these facts are established, the petitioner is entitled to relief, but, in our opinion, he has mistaken his remedy. Instead of moving to have the decree opened, he should have applied under section 11 (D) (vi) for the return of the truck.

The proceedings for condemnation were entirely regular. All the requirements of the statute were complied with. Notwithstanding this, if in point of fact the owner of the truck had not actually received notice and had not consented to the illegal act, and if no other method of procedure were provided, the court would be prompt to open the decree. Before doing so, depositions would need to be taken, and the testimony, perhaps conflicting, considered. If the decree should be opened, the matter would proceed de novo. A more direct method is found in the sub-section above referred to. Since the sale has not taken place, the petitioner has his remedy clearly provided in the statute. The rule to open is discharged.