Pennsylvania
Restitution Benchbook
2020

The Honorable Alice Beck Dubow
The Honorable Judith Ference Olson 
The Honorable Jack A. Panella
The Honorable Victor P. Stabile
Superior Court of Pennsylvania

_____________________________________________________________________________

This Pennsylvania Restitution Benchbook is published by the Administrative Office of Pennsylvania 
Courts (AOPC). 

Points  of  view  or  opinions  contained  within  this  document  are  those  of  the  author  and  do  not 
necessarily represent any official position, policy or view of AOPC or the Pennsylvania judiciary. 
Part or all of this publication may be reproduced with permission and if credited to AOPC.  Copies 
of this Benchbook are available at no charge to Pennsylvania judges.

Principal Authors

Project Managers

Alice Beck Dubow, J. 
Judith Ference Olson, J. 
Jack A. Panella, J. 
Victor P. Stabile, J.

Preface

Jack A. Panella, P.J.
Stephen M. Feiler, Ph.D.

Pennsylvania Restitution Benchbook

This, the first edition of the 

 has been prepared 
with the encouragement and sponsorship of Chief Justice Thomas G. Saylor and under 
the  supervision  of  Stephen  M.  Feiler,  Ph.D.,  the  head  of  the  Education  Department  of 
the Administrative Office of Pennsylvania Courts. The Benchbook is designed to assist 
judges in providing an overview of the law and procedure relating to restitution in adult 
and juvenile cases. When possible, procedural checklists have been included.  

• Chapter  I  covers  basic  principles  and  concepts  when  restitution  must  be

addressed in an adult or juvenile criminal prosecution.

• Chapter II examines the imposition of restitution at the sentencing phase of

an adult criminal matter as part of a direct sentence.

• Chapter III addresses the imposition of restitution as a condition of probation

• Chapter IV examines the imposition of restitution in the dispositional phase

in an adult criminal prosecution.

of a juvenile prosecution.

• Chapter  V  includes  the  pertinent  statutory  provisions  and  Rules  of  Court

pertaining to restitution.

Acknowledgements

The dedicated talents of many individuals contributed to the production of this 
book. We particularly thank Thomas B. Darr and Geoff Moulton, respectively the former 
and current Court Administrators of Pennsylvania.

Special recognition must go to a number of individuals who contributed hours of 
research and review: Darren Breslin, Esq., Education Department, AOPC; William Blake, 
Esq.,  Assistant  District  Attorney,  Northampton  County;  Nicolo  Baratta,  Esq.,  District 
Attorney’s  Office  of  Lehigh  County;  Jerry  Rassias,  Esq.;  Richard  Steele,  Esq.,  and  the 
members of the Juvenile Court Judges Commission; Stuart Suss, Esq.; Brian Panella, Esq.; 
and Dillion Zernich, Esq., William Clements, Esq., Kyle Fitzpatrick, Esq., Caitrin Lally, Esq., 
Ashley  Stephans,  Esq.,  Owen  Ecker,  Esq.,  Kimberly  Hayman,  Esq.,  Sean  M.  Dougherty, 
Esq., and Saad Syed, Esq., of the Superior Court of Pennsylvania. We extend appreciation 
to Doreen Lipare and Nancy Casciole for their administrative help.   Lastly, we thank the 
following students and wish them well in their study of the law: Mark Stevens, Duquesne 
University School of Law; Nicholas Battisti, Cornell University; Regan Murphy, Vermont 
Law School; and Ryan McKarski, Temple Law School. 

i

Principal Authors
Alice Beck Dubow, J.
Judith Ference Olson, J.
Jack A. Panella, P.J.
Victor P. Stabile, J. 

Project Managers

Jack A. Panella, P.J.

Stephen M. Feiler, Ph.D.

Preface

This,  the  first edition  of  the Pennsylvania  Restitution  Benchbook has  been 

prepared with the encouragement and sponsorship of Chief Justice Thomas G. Saylor and 
under the supervision of Stephen M. Feiler, Ph.D., the head of the Education Department
of the Administrative Office of Pennsylvania Courts. The Benchbook is designed to assist 
judges in providing an overview of the law and procedure relating to restitution in adult
and juvenile cases. When possible, procedural checklists have been included.  

 Chapter I  covers  basic  principles  and  concepts  when  restitution  must  be

addressed in an adult or juvenile criminal prosecution. 

 Chapter II examines the imposition of restitution at the sentencing phase of an

adult criminal matter as part of a direct sentence.

 Chapter III addresses the imposition of restitution as a condition of probation 

in an adult criminal prosecution. 

 Chapter IV examines the imposition of restitution in the dispositional phase of 

 Chapter  V  includes  the  pertinent  statutory  provisions  and  Rules  of  Court 

a juvenile prosecution.

pertaining to restitution. 

Acknowledgments

The  dedicated  talents  of  many  individuals  contributed  to  the  production  of  this 

book. We particularly thank Thomas B. Darr and Geoff Moulton, respectively the former 
and current Court Administrators of Pennsylvania.

Special recognition must go to a number of individuals who contributed hours of 

research  and  review:  Darren  Breslin,  Esq.,  Education  Department,  AOPC;  William
Blake,  Esq., Assistant  District  Attorney,  Northampton  County; Nicolo  Baratta,  Esq., 
District  Attorney’s  Office  of Lehigh  County; Jerry  Rassias,  Esq.;  Richard  Steele,  Esq.,
and  the  members  of  the  Juvenile  Court  Judges  Commission;  Stuart  Suss,  Esq.;  Brian 
Panella, Esq.; and Dillion Zernich, Esq., William Clements, Esq., Kyle Fitzpatrick, Esq.,
Caitrin Lally, Esq., Ashley Stephans, Esq., Owen Ecker, Esq., Kimberly Hayman, Esq.,
and  Sean  M.  Dougherty,  Esq.,  of  the  Superior Court  of  Pennsylvania. We extend
appreciation to Doreen Lipare and Nancy Casciole for their administrative help.  Lastly, 
we  thank  the  following students  and  wish  them  well  in  their  study  of  the  law:  Mark
Stevens,  Duquesne  University  School  of  Law;  Nicholas  Battisti,  Cornell  University; 
Regan Murphy, Vermont Law School; and Ryan McKarski, Temple Law School. 

Pennsylvania Restitution Benchbook

ii

 

 

 

 

 

 

 

 

 

Judge, Bucks County
Honorable Michael J. Barrasse

 
 
President Judge, Lackawanna County
Honorable David J. Barton

 
Magisterial District Judge, Allegheny County
Stephen A. Zappala, Jr., Esq.

 

Benchbook Advisory Committee

Honorable Kevin M. Dougherty

Honorable Sallie Updyke Mundy

Supreme Court of Pennsylvania
Honorable Daniel McCaffery 

 
 
onorable Maria C. McLaughlin

Supreme Court of Pennsylvania 

 H

Superior Court of Pennsylvania
Honorable Michael J. Koury, Jr. 

 

 

 
Superior Court of Pennsylvania
Honorable Edward D. Reibman 

President Judge, Northampton County
Honorable Timothy F McCune 

President Judge, Lehigh County
Honorable Richard M. Hughes, III

Judge, Butler County 
Honorable Jeffrey A. Manning

Judge, Luzerne County
Honorable Brian T. McGuffin

 
Judge, Allegheny County
Honorable Paula A. Roscioli 

Judge, Northampton County 
Honorable Terrence R. Nealon

Judge, Lackawanna County
Terrance Houck, Esq. 
 

 

 

 A

District Attorney, Northampton County
Stephanie J. Salavantis, Esq.

District Attorney, Allegheny County

aron J. Marcus, Esq.

District Attorney, Luzerne County 

ancy Winkelman, Esq. 

Defender Association of Philadelphia
Andrew Christy, Esq.

Office of District Attorney, Philadelphia

ACLU of Pennsylvania

 

 

 
 

 

 

 
 

 

 

 N

 ii

Foreword
by
Chief Justice Thomas G. Saylor
Supreme Court of Pennsylvania 

 
Restitution  as  a  manner  of  compensating  victims  can  be  found  in  the  earliest 
examples of written law, including the Code of Hammurabi and the Torah.  Compensation 
was often scaled according to the perceived harm caused, and was intended to supplant 
interpersonal violence borne of vengeance.  In many early societies, no distinction was 
made between private and public harm, or between criminal and civil acts. Courts were 
focused  on  restoration,  and  often  had  great  latitude  in  assigning  the  compensation 
deemed appropriate to satisfy the victim and restore community equilibrium. 

Over time, the role of courts evolved as the compensatory purpose of restitution 
  
came  to  be  recognized  as  secondary  to  the  purpose  of  rehabilitating  the  offender. 
Restitution  became  encouraged  as  a  way  to  impress  upon  the  offender  the  egregious 
nature of the conduct and the offender’s responsibility for it, to deter repeat malfeasance, 
and to encourage individuals to live in a responsible way. 

Benchbook

 
The  considerations  in  determining  appropriate  restitution  continue  to  evolve 
  illustrates.    In  2016,  upon  recommendation  of  the  Criminal 
today,  as  this 
Procedural Rules Committee, the Pennsylvania Supreme Court modified several rules of 
criminal procedure toward the end of standardizing how restitution is awarded in those 
cases. The Committee’s work was informed by recommendations from the Restitution in 
Pennsylvania Task Force.  The Task Force, convened in 2011 by the Pennsylvania Office 
of the Victim Advocate, was charged with identifying, “solutions to increase the quality 
of restitution services at the state and county levels.”   Criminal justice partners from 
the judicial, legislative and executive branches collaborated in the effort.  In their 2013 
Final Report, the Task Force identified important considerations and best practices in 
managing restitution. 

 
Now, in 2020, the Supreme Court and the Administrative Office of Pennsylvania 
Courts provide this concise, practical guide for trial judges issuing orders of restitution.  
And although the Benchbook is written primarily for trial court judges, appellate court 
judges also may find the information useful. Similarly, both new and experienced judges 
should find value.

Benchbook

The 

  details  the  applicable  statutes,  rules,  and  case  law,  and  offers 
 
perspectives  from  experienced  judges  on  issues  that  can  arise  in  restitution  cases.  It 
provides guidance on common questions surrounding the mandatory nature of restitution.  
Importantly, it also addresses matters that are not routine, such as how bankruptcy affects 
an order of restitution, and the applicability of restitution in cases where the recipient is 
an entity other than a person, or a person other than the actual victim. 

iii  

  T

  I

                               

he  materials  presented  in  the  Benchbook  were  prepared  and  reviewed  by 

Pennsylvania  judges  from  all  levels  of  the  judiciary.    I  would  like  to  thank  President 

Judge  Jack  A.  Panella  of  the  Superior  Court,  who  managed  the  project  and  worked  for 

over  three  years  to  see  it  to  fruition.    Judge  Panella,  along  with  Superior  Court  Judges 

Judith Olson, Victor Stabile and Alice Dubow, gave their time to research and write the 

chapters.    I  also  thank  the  members  of  the  Benchbook  Advisory  Committee  for  their 

important  roles,  as  well  as  Stephen  Feiler,  Ph.D.  and  Darren  Breslin,  Esq.,  of  AOPC’s 

Judicial Education Department for their assistance in bringing this book to the judiciary.   

  am  certain  the  Benchbook  will  prove  a  valuable  tool  for  Pennsylvania  judges, 

and I am grateful to those responsible for its development.  

hief Justice Thomas G. Saylor 

July 2020 

  C

Benchbook

The  materials  presented  in  the 

 
  were  prepared  and  reviewed  by 
Pennsylvania judges from all levels of the judiciary.  I would like to thank President Judge 
Jack A. Panella of the Superior Court, who managed the project and worked for over three 
years to see it to fruition.  Judge Panella, along with Superior Court Judges Judith Olson, 
Victor Stabile and Alice Dubow, gave their time to research and write the chapters.  I also 
thank  the  members  of  the  Benchbook  Advisory  Committee  for  their  important  roles, 
as well as Stephen Feiler, Ph.D. and Darren Breslin, Esq., of AOPC’s Judicial Education 
Department for their assistance in bringing this book to the judiciary.  

Benchbook

I am certain the 

 
and I am grateful to those responsible for its development. 

 will  prove a valuable  tool for Pennsylvania judges, 

Chief Justice Thomas G. Saylor
July 2020

iv

Pennsylvania Restitution Benchbook 

 v 

Table of Contents
Condensed

A detailed Table of Contents precedes every chapter.

Chapter One: INTRODUCTION

 
 
 
 

I.    Scope of Benchbook .............................................................................................. 1:2
II. 
Legal Principles of Restitution .......................................................................... 1:2
III.  Restitution Resources ........................................................................................ 1:20
IV.  Task Force Recommendations  ........................................................................ 1:21

Chapter Two: MANDATORY RESTITUTION AT SENTENCING

 
 
 
 
 
 
  VII. 

I.  Trial Court Considerations ................................................................................. 2:3
II.  Mandatory Restitution Order at Sentencing ................................................. 2:8
III.   Classification of “Victim” ..................................................................................  2:22
IV.  Procedure ..............................................................................................................  2:34
V.  Burden of Proof ...................................................................................................  2:42
VI.   Restitution Payments ........................................................................................  2:49
Standard of Review Upon Appeal ..................................................................  2:65

Chapter Three: RESTITUTION AS CONDITION OF PROBATION

I.   Generally: Restitution as Condition of Probation ....................................... 3:3
 
II.   Procedure ..............................................................................................................  3:21
 
III.   Burden of Proof ...................................................................................................  3:26
 
IV.  Trial Court Considerations ..............................................................................  3:27
 
Standard of Review Upon Appeal ..................................................................  3:38
V. 
 
 
VI.  Modification .........................................................................................................  3:39
  VII.  Revocation Proceedings for Failure to Pay Restitution ..........................  3:40

Chapter Four: RESTITUTION IN JUVENILE COURT

I.  Restitution in Juvenile Court .............................................................................. 4:3
 
Factors in Determining Restitution Amount ................................................ 4:4
II. 
 
III.  Dispositional Court’s Responsibilities ........................................................... 4:7
 
IV.  Parental Participation and Liability .............................................................  4:11
 
V.  Restitution Fund ................................................................................................. 4:12
 
 
Collection of Restitution ................................................................................... 4:13
VI. 
  VII.  Proposed Amendment of Pa.R.J.C.P. 515 and 610 .................................... 4:14
  VIII.  Appellate Review ................................................................................................ 4:14
 
 

  Ordering Restitution in Juvenile Cases ........................................................ 4:15

IX.  Best Practices and Considerations When 

v 

Chapter Five: STATUTORY PROVISIONS AND RULES OF COURT

 
 

I. 
II. 

Enabling Statutes and Rules ..................................................................................  2
Special Statutory Restitution Provisions ........................................................ 14

TABLE OF CASES
TABLE OF CITATIONS
SUBJECT INDEX

 vi

Table of Contents
Detailed

Chapter One- INTRODUCTION

I. 

II. 

             

             

 

 

SCOPE OF BENCHBOOK  .............................................................................................. 1:2

LEGAL PRINCIPLES OF RESTITUTION  .................................................................... 1:2

  A.  Basic Concepts of Restitution  ....................................................................... 1:2

1. Direct Sentence  .......................................................................................... 1:4

2. Probationary Sentence  ............................................................................ 1:7

             3. Modification  ................................................................................................ 1:8

  B.  The Restitution Hearing  .............................................................................  1:10

C.  Restitution as a Direct Sentence vs. Restitution

 
            as a Condition of Probation  .......................................................................  1:11

  D.  Collection of Restitution  .............................................................................  1:12

E.  Appellate Review  ...........................................................................................  1:16

F.  The “Causal Connection”  ..............................................................................  1:19

III.  RESTITUTION RESOURCES  .....................................................................................  1:20

IV.  TASK FORCE RECOMMENDATIONS  .......................................................................  1:21

Chapter Two - MANDATORY RESTITUTION AT SENTENCING

I. 

TRIAL COURT CONSIDERATIONS  ............................................................................. 2:3

A.  Mandatory Restitution and Designation of “Victim”  .......................... 2:3 

 

 

1.  The Relevant Statutes  ............................................................................ 2:3

2.  The Definition of a “Victim” .................................................................. 2:4

B.  No Retroactive Effect to Amendments  ..................................................... 2:8

II.  MANDATORY RESTITUTION ORDER AT SENTENCING ....................................... 2:8

A.  Statutory Creation  .......................................................................................... 2:8

B.  Sentencing Court’s Responsibility ..........................................................  2:11

C.  Priorities of Restitution Payments  ........................................................  2:17

D. Modification  ...................................................................................................  2:19

E.  Limitations When Restitution Can Be Imposed  .................................  2:20

F.  Direct Sentence vs. Probationary Sentence ..........................................  2:21

III.  CLASSIFICATION OF “VICTIM”  ...............................................................................  2:22

A.  Historical Review of a “Victim” ................................................................  2:22

 

 

 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 vii

 

 

 

 

 

 

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

B.  Current Definitions of “Victim”  ...............................................................  2:24

C.  Examples .........................................................................................................  2:25

1.  Compensation for Victim Injury .......................................................  2:25

2.  The Crime Victim’s Compensation Fund  .......................................  2:26

3.   Payments by Other Government Agency  .....................................  2:27

4.   Payments by Insurance Companies  ...............................................  2:32

IV.  PROCEDURE 

..............................................................................................................  2:34
 

A.  Advisement at Time of Guilty Plea..........................................................  2:35

B.  Necessity of a Hearing  ................................................................................  2:36

C.  The Sentencing Hearing .............................................................................  2:37

D.  Restitution Not Affected by Bankruptcy  ..............................................  2:39

. 
V

BURDEN OF PROOF ....................................................................................................  2:42  

A.  Burden of Proving Entitlement ................................................................  2:42

B.  Standards  .......................................................................................................  2:44

1.  Burden of Proving Entitlement – Summary  .................................  2:44   

2.  Burden of Proof  ......................................................................................  2:45

C.  Amount of Restitution  ................................................................................  2:47

VI.  Restitution Payments  ..............................................................................................  2:49

 

 

 

 

 

 

A.  Amount and Method of Payment  ...........................................................  2:49

B.  Causal Connection  ......................................................................................  2:50

C.  Method of Payment .....................................................................................  2:52

D.  Enforceability of Restitution Payments  ..............................................  2:54

E.  Payments During Incarceration  .............................................................  2:60

F.  Relevance of Jury’s Verdict  ......................................................................  2:61

G.  Civil Remedies and Discharge of Restitution  ....................................  2:62

H.  Payments from Victims Compensation Assistance Program  .......  2:64

VII.  STANDARD OF REVIEW UPON APPEAL ...............................................................  2:65

Chapter Three - RESTITUTION AS CONDITION OF PROBATION

I. GENERALLY .............. .............................................................................................................. 3:3

A. Introductory Note  ................................................................................................... 3:3

B. Introductory Warning  ............................................................................................ 3:3

C. Restitution-Creature of Statute  ........................................................................... 3:4

  

a. Restitution as Condition of Probation:  42 Pa.C.S.A. § 9763  .............. 3:4

D. Definitions   ................................................................................................................. 3:5

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 viii

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

   

  

E. Purposes Served  ...................................................................................................... 3:6

F. Criminal Sanction...................................................................................................... 3:7

G. Construction and Interpretation ........................................................................ 3:8

H. Restitution Encouraged ......................................................................................... 3:8

I. Restitution Not Affected by Bankruptcy ............................................................ 3:8

 
    

J. Differences between Restitution Imposed as Direct Sentence 
   and Condition of Probation  ................................................................................... 3:9

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

 

 

 

 

1. Mandatory vs. Discretionary ........................................................................ 3:9

2. Persons Who May be Subjects of Restitution .......................................  3:10

3. Types of Crimes to which the Statute is Applicable ...........................  3:11

4. Nexus between the Damage and the Crime...........................................  3:11

a. Examples  ...................................................................................................  3:13

b. Where there is No Proof of Loss or Damage ...................................  3:18

5. Amount of Restitution in Relation to the Loss .....................................  3:19

6. Determination of the Defendant’s Ability to Pay  ...............................  3:20

7. Expiration of Payment Obligation ............................................................  3:20

8. As a Condition of a Term of Probation ....................................................  3:21

II. PROCEDURE 

..............................................................................................................  3:21
 

A. Pennsylvania Rule of Criminal Procedure 705.1 ........................................  3:21

B. Prior Notification ..................................................................................................  3:23

C. Right to Counsel .....................................................................................................  3:24

D. Restitution Must be Determined by the Trial Court at Sentencing ......  3:24

1. Generally ..........................................................................................................  3:24

2. Non-Delegation ..............................................................................................  3:25

3. Non-Waivable ..................................................................................................  3:25

III. BURDEN OF PROOF ........................................................................................................  3:26

IV.  TRIAL COURT CONSIDERATIONS ...............................................................................  3:27

A. Direct and Indirect Damages .............................................................................  3:28

B. Defendant’s Ability to Pay  .................................................................................  3:28

1. May not exceed the total amount of direct and indirect damages ...  3:28

2.  May not exceed the ability to pay ............................................................  3:29

a. Sacrifices may be required ...................................................................  3:30

  

(1) Defendant may be required to sell property  ................  3:31

C. Determining the Total Amount of Restitution  ............................................  3:31

ix

 
      

 

 
     

 
    

 
      

D. Determining “the details of a payment plan, if any, including 
     when payment is to begin” .................................................................................  3:32

E. Identifying the Payee(s) ......................................................................................  3:32

F. Declaring “to which officer or agency the restitution payment 
    shall be made” .........................................................................................................  3:33

G. Declaring “whether any restitution has been paid and in what 
     amount” 

..............................................................................................................  3:38
 

H. Declaring “whether the restitution has been imposed as a part 
     of the sentence and/or as a condition of probation”  ................................  3:38

V.   STANDARD OF REVIEW UPON APPEAL ....................................................................  3:38

VI.  MODIFICATION   ..............................................................................................................  3:39

VII. REVOCATION PROCEEDINGS-FAILURE TO PAY  ...................................................  3:40

Chapter Four - RESTITUTION IN JUVENILE COURT

I.    RESTITUTION IN JUVENILE COURT .............................................................................. 4:3

A.  Foundational Principles of the Juvenile Act ................................................. 4:3

B.  Basic Principles of Restitution in the Juvenile Act  .................................... 4:3

C.  Statutory Basis for Imposing Restitution  ..................................................... 4:4

D.  Policy Considerations in Ordering Restitution  .......................................... 4:4  

II.    FACTORS IN DETERMINING RESTITUTION AMOUNT  .......................................... 4:4

A.  Juvenile Court’s Broad Discretion in Determining Restitution  ............ 4:4

B.  Factors Juvenile Court Should Consider in Ordering Restitution 
      (Dublinski Factors) ............................................................................................... 4:5

 
  
 

 

 
 

 

 
 
 

1.  Generally  .................................................................................................... 4:5

2.  Dublinski Factor No. 1: Amount of Loss 
      Suffered by the Victim  ........................................................................... 4:5

3.  Dublinski Factor No. 2: The Restitution Order Should Reflect
      the Damage that the Victim Would Not Have Suffered “But For” 
      the Juvenile’s Delinquent Act.  ............................................................. 4:5

4.  Dublinski Factor No. 3: Juvenile’s Earning Capacity  .................... 4:6

5.  Dublinski Factor No. 4: Juvenile Court shall Impose the Type 
      of Payment that will Best Serve the Needs of the Victim and  ..........  
      Capabilities of the Juvenile  .................................................................. 4:6

C.  An Award of Restitution is Not an Award of Damages  .............................. 4:6

D.  Facts in the Record to Support an Order of Restitution ........................... 4:7

E.  Impact of Criminal Statutes and Court Cases  .............................................. 4:7

 

 

 

 

 

 
 

 

 
 

 
 
 

 

 

 

 

 
 
      

 x

III.  DISPOSITIONAL COURT’S RESPONSIBILITIES  ........................................................ 4:7

 

 

 

 

 

 

 
 

 

 

 

 

 

 

 

 
 

 

 

 

 

 

 

 

 

 

 

A.  Restitution Hearing  ............................................................................................. 4:7

B.  Restitution Order  ................................................................................................. 4:8

C.  Parties to Whom Juvenile May Pay Restitution  .......................................... 4:8

D.  Timeliness and Deferment of Restitution Order  ....................................... 4:9

E.  Restitution As Part of Probation Order  ......................................................... 4:9

F.  Determination of Restitution for Intercounty Transfers  ......................  4:10

G.  Retention of Jurisdiction Until Age 21 and then 
      Judgment Against Juvenile  .............................................................................  4:10

H.  Restitution Determined by Agreement  .....................................................  4:10

 

 

 

 

 

1.  Consent Decree ......................................................................................  4:10

2.  Informal Adjustment  ...........................................................................  4:10

3.  Plea Agreement  .....................................................................................  4:11

4.  Juvenile Court’s Discretion to Hold a Hearing  ............................  4:11

5.  Victim Offender Conferencing  ..........................................................  4:11

IV.  Parental Participation and Liability  .......................................................................  4:11

A.  Parental Participation in Juvenile’s Restitution Obligation  ................  4:11

B.  Liability of Parents for Juvenile’s Delinquent Acts 
      that are Tortious  ................................................................................................  4:12

V.  Restitution Fund  .............................................................................................................  4:12

A.  Contribution  .......................................................................................................  4:12

B.  Guidelines  ............................................................................................................  4:13

C.  Judgment for Unpaid Restitution  .................................................................  4:13

VI.  Collection of Restitution  .............................................................................................  4:13

A.  Probation Department  ....................................................................................  4:13

B.  Procedure for Collection of Restitution Order  ........................................  4:13

C.  Default in Payment  ............................................................................................  4:14

D.  Judgment May be Entered  ..............................................................................  4:14

VII.  Proposed Amendment of Pa.R.J.C.P. 515 and 610  .............................................  4:14

VIII.  Appellate Review  .......................................................................................................  4:14

A.  Standard of Review  ...........................................................................................  4:14

B.  Abuse of Discretion  ..........................................................................................  4:15

C.  Claims Waived on Appeal  ................................................................................  4:15

IX.  Best Practices and Considerations When Ordering 
        Restitution in Juvenile Cases  ....................................................................................  4:15

 xi

Chapter Five - STATUTORY PROVISIONS AND RULES OF COURT

I. 

ENABLING STATUTES and RULES  ............................................................................ 5:2

1.  Mandatory Restitution 18 Pa.C.S.A. § 1106  ................................................... 5:2

2.  Sentencing in General 42 PA.C.S.A. § 9721  ..................................................... 5:4

3.  Collection of Restitution 42 Pa.C.S.A. § 9728  ................................................ 5:6   

4.  Distribution of Funds Collected by Criminal Division

      

 

204 Pa. Code § 29.405   .......................................................................................... 5:9

5.  Statutory Definition of a Victim 42 P.S. § 11.103  ......................................  5:12

6.  Summary Conviction – Sentence of Restitution Pa.R.Crim.P. 454  .......  5:12

II. 

 SPECIAL STATUTORY RESTITUTION PROVISIONS ..........................................  5:14

1.  Identity Theft 18 Pa.C.S.A. § 1107.1  ..............................................................  5:14

2.  Cleanup of Clandestine Laboratories 18 Pa.C.S.A. § 1110  .....................  5:14

3.  Terroristic Threats 18 Pa.C.S.A. § 2706  .......................................................  5:15

4.  Threat to Use Weapons of Mass Destruction 18 Pa.C.S.A. § 2715  .......  5:16

5.  Weapons of Mass Destruction 18 Pa.C.S.A. § 2716  ...................................  5:17   

6.  Cruelty to Animals 18 Pa.C.S.A. § 5511  ........................................................  5:19

7.  Facsimile Weapons of Mass Destruction 18 Pa.C.S.A. § 5516  ...............  5:22

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CASES
TABLE OF CITATIONS
SUBJECT INDEX

 xii

Introduction

Chapter One                                                 Table of Contents
Introduction

I. 

II. 

 

 

 

 
 

 

 

 

SCOPE OF BENCHBOOK  ...................................................................................................2

LEGAL PRINCIPLES OF RESTITUTION  .........................................................................2

  A.  Basic Concepts of Restitution  ............................................................................2

             

             

 

 

1. Direct Sentence  ...............................................................................................4

2. Probationary Sentence  .................................................................................7

             3. Modification  .....................................................................................................8

  B.  The Restitution Hearing  ..................................................................................10

C.  Restitution as a Direct Sentence vs. Restitution

 
           as a Condition of Probation   ............................................................................11

  D.  Collection of Restitution  ..................................................................................12

 

 

E.  Appellate Review  ................................................................................................16

F.  The “Causal Connection”  ...................................................................................19

III.  RESTITUTION RESOURCES  ..........................................................................................20

IV.  TASK FORCE RECOMMENDATIONS  ............................................................................21

1      Chapter 1      

Chapter One

Introduction

Introduction

 

I.    SCOPE OF BENCHBOOK

 
This benchbook is designed to assist judges in providing an overview of the law and 
procedure relating to restitution in adult and juvenile cases. When possible, procedural 
checklists  have  been  included.    Chapter  I  covers  basic  principles  and  concepts  when 
restitution must be addressed in an adult or juvenile criminal prosecution. 

Chapter Two examines the imposition of restitution at the sentencing phase of an 

 
adult criminal matter.

Chapter Three addresses the imposition of restitution as a condition of probation in 

 
an adult criminal prosecution. 

Chapter Four examines the imposition of restitution in the dispositional phase of a 

 
juvenile prosecution.

 
Also included are crimes which have specific restitution provisions. 

Chapter Five is a collection of enabling statutes and rules which address restitution.  
II.     LEGAL PRINCIPLES OF RESTITUTION

 

 

A. Basic Concepts of Restitution

Commonwealth v. Petrick,

 
In  the  context  of  criminal  proceedings,  the  primary  purpose  of  restitution  is 
Commonwealth v. 
rehabilitation of the offender by impressing on him the fact that his actions damaged the 
Ramos
victim.  

 217 A.3d 1217, 1224 (Pa. 2019); 

, 197 A.3d 766, 769 (Pa. Super. 2018).  

It  is  well  established  that  the  primary  purpose  of  restitution  is 
rehabilitation of the offender by impressing upon him or her that his 
criminal conduct caused the victim’s loss or personal injury and that it 
is his responsibility to repair the loss or injury as far as possible. Thus, 
recompense  to  the  victim  is  only  a  secondary  benefit,  as  restitution 
is not an award of damages. Although restitution is penal  in nature, 
it  is  highly  favored  in  the  law  and  encouraged  so  that  the  criminal 
will understand the egregiousness of his or her conduct, be deterred 
from repeating the conduct, and be encouraged to live in a responsible 
 533 Pa. 14, 22, 617 A.2d 702, 706–07 
way. 

Commonwealth v. Harner,

2      Chapter 1      

Introduction

(1992). Thus, restitution, at its core, involves concepts of rehabilitation 
and deterrence.

Commonwealth v. Brown

, 981 A.2d 893, 895-896 (Pa. 2009)(citations omitted).

 
Restitution  is  a  creature  of  statute  and,  without  express  legislative  direction,  a 
Commonwealth v. Kinnan
court  is  powerless  to  direct  a  defendant  to  make  restitution  as  part  of  his  sentence. 
, 71 A.3d 983, 986 (Pa. Super. 2013). Where that statutory 
authority  exists,  however,  the  imposition  of  restitution  is  vested  within  the  sound 
discretion of the sentencing judge. 

Id.

The trial court is authorized to order restitution pursuant to 42 Pa.C.S.A. § 9721 as 

 
follows:

§ 9721. Sentencing generally

(a)  General  rule.--In  determining  the  sentence  to  be  imposed,  the 
court shall, except as provided in subsection (a.1), consider and select 
one  or  more  of  the  following  alternatives,  and  may  impose  them 
consecutively or concurrently:

(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
. . .

(c)  Mandatory  restitution.--In  addition  to  the  alternatives  set  forth 
in  subsection  (a)  of  this  section  the  court  shall  order  the  defendant 
to  compensate  the  victim  of  his  criminal  conduct  for  the  damage  or 
injury  that  he  sustained.  For  purposes  of  this  subsection,  the  term 
“victim” shall be as defined in section 479.1 of the act of April 9, 1929 
(P.L. 177, No. 175), known as The Administrative Code of 1929.

42 Pa.C.S.A. § 9721.

 
Two scenarios implicate the statutory authority for restitution: (1) as part of a direct 
sentence, or (2) as a condition of probation. See 18 Pa.C.S.A. § 1106 and 42 Pa.C.S.A. § 
9763(b)(10), respectively.

Previously,  Pennsylvania  legislation  also  provided  for  a  restitution  order  in 
 
intermediate punishment sentences.  However, effective December 18, 2019, Title 42 was 
amended and repealed the provisions for state and county intermediate punishment, 

3      Chapter 1      

Introduction

replacing each with similar programs, but neither mentions a separate grant of authority 
to order restitution distinct from the two provisions stated above. 

Additionally, the provisions regarding restitution in probationary sentences were 
 
renumbered and moved from 42 Pa.C.S.A. § 9754 to 42 Pa.C.S.A. § 9763.  All of the cases 
cited in this benchbook refer to the prior version of Section 9754; however, in light of 
the  similarities  in  the  two  sections,  the  cases  construing  the  prior  version  should  be 
1
considered applicable to 42 Pa.C.S.A. § 9763. 

 

The regulations governing the Sentencing Guidelines also address restitution:

§ 303.14. Guideline sentence recommendations--economic sanctions.

estitution

(c) R

(1) Restitution shall be added to any guideline sentence, as authorized 
by law. Relevant statutes include but are not limited to:
(i) 18 Pa.C.S. § 1106 (relating to injuries to person or property)
(ii) 18 Pa.C.S. § 1107 (relating to theft of timber)
(iii) 18 Pa.C.S. § 1107.1 (relating to restitution for identity theft)
(iv) 18 Pa.C.S. § 1110 (relating to restitution for cleanup of clandestine 
laboratories)
(v)  18  P.S.  §  11.1302  (relating  to  restitution  to  the  Office  of  Victim 
Services)
(vi) 42 Pa.C.S. § 9721(c) (relating to mandatory restitution)

(2) Restitution may be imposed as a direct sentence or as a condition 
of  probation  or  intermediate  punishment,  and  is  considered  a  non-
confinement  sentencing  alternative  (see  restorative  sanction  § 
303.9(f)).

2
204 Pa.Code § 303.14. 
Direct Sentence

 
Restitution is authorized by Section 1106 of the Crimes Code, 18 Pa.C.S.A. § 1106.  
That section mandates restitution in a direct sentence and provides, in pertinent part, 
that various entities are entitled to receive restitution:

1 

2 

 “It is axiomatic that in determining legislative intent, all sections of a statute must be read together and in conjunction with each other, 
and construed with reference to the entire statute. . . .  When the meaning of a word or phrase is clear when used in one section, it will 
be construed to mean the same thing in another section of the same statute. Commonwealth v. Maloney, 365 Pa. 1, 11, 73 A.2d 707, 712 
(1950).”  Hous. Auth. of Cty. of Chester v. Pennsylvania State Civil Serv. Comm’n, 730 A.2d 935, 945–46 (Pa. 1999)(citations omitted.
 References to intermediate punishment were deleted in 2019.  See, e.g.,  2019, Dec. 18, P.L. 776, No. 115, § 4,

4      Chapter 1      

Introduction

§ 1106. Restitution for injuries to person or property

(a) General rule. — Upon conviction for any crime wherein:

(1)  property  of  a  victim  has  been  stolen,  converted  or  otherwise 
unlawfully  obtained,  or  its  value  substantially  decreased  as  a  direct 
result of the crime; or

(2)  the  victim,  if  an  individual,  suffered  personal  injury  directly 
resulting from the crime, 

the offender shall be sentenced to make restitution in addition to the 
punishment prescribed therefor.
. . .

(1) The court shall order full restitution:

c) Mandatory restitution.—

  (

(i) Regardless of the current financial resources of the defendant, so 
as to provide the victim with the fullest compensation for the loss. 
The court shall not reduce a restitution award by any amount that the 
victim has received from the Crime Victim’s Compensation Board or 
other government agency but shall order the defendant to pay any 
restitution ordered for loss previously compensated by the board to 
the Crime Victim’s Compensation Fund or other designated account 
when  the  claim  involves  a  government  agency  in  addition  to  or  in 
place of the board. The court shall not reduce a restitution award by 
any amount that the victim has received from an insurance company 
but shall order the defendant to pay any restitution ordered for loss 
previously compensated by an insurance company to the insurance 
company.

(ii)  If  restitution  to  more  than  one  victim  is  set  at  the  same  time, 
the court shall set priorities of payment. However, when establishing 
priorities, the court shall order payment in the following order:

(A) Any individual.
(A.1) Any affected government agency.
(B) The Crime Victim’s Compensation Board.
(C) Any other government agency which has provided reimbursement 
to the victim as a result of the defendant’s criminal conduct.
(D) Any insurance company which has provided reimbursement to 
the victim as a result of the defendant’s criminal conduct.
(E) Any estate or testamentary trust.

5      Chapter 1      

Introduction

(F)  Any  business  entity  organized  as  a  nonprofit  or  not  for-profit 
entity.
(G) Any other business entity.

18 Pa.C.S.A. § 1106.

Such restitution is mandatory to direct victims of the crime and requires a direct 
, 221 

 
Commonwealth v. Harner
nexus between the loss and the amount of restitution.  
A.3d 651 (Pa. Super. 2019); 

, 617 A.2d 702, 706 (Pa. 1992).  

Commonwealth v. Whatley

 

A “Victim” is defined in Section 1106 as follows:

“Victim.” As defined in section 103 of the act of November 24, 1998 (P.L. 
882, No. 111), known as the Crime Victims Act. The term includes an 
affected government agency, the Crime Victim’s Compensation Fund, 
if  compensation  has  been  paid  by  the  Crime  Victim’s  Compensation 
Fund to the victim, any insurance company that has compensated the 
victim for loss under an insurance contract and any business entity.

18 Pa.C.S.A. § 1106(h). The Crime Victim’s Act defines “Victim” as:

“Victim.” The term means the following:
(1) A direct victim.
(2) A parent or legal guardian of a child who is a direct victim, except 
when the parent or legal guardian of the child is the alleged offender.
(3)  A  minor  child  who  is  a  material  witness  to  any  of  the  following 
crimes and offenses under 18 Pa.C.S. (relating to crimes and offenses) 
committed or attempted against a member of the child’s family:
Chapter 25 (relating to criminal homicide).
Section 2702 (relating to aggravated assault).
Section 3121 (relating to rape).
(4) A family member of a homicide victim, including stepbrothers or 
stepsisters, stepchildren, stepparents or a fiance, one of whom is to be 
identified to receive communication as provided for in this act, except 
where the family member is the alleged offender.

18 Pa.C.S.A. § 11.103.

The amount of restitution must be determined under the adversarial system with 
 180 A.3d 761, 771 (Pa. Super. 

 
Commonwealth v. Ortiz
considerations of due process. 
2018); 

, 854 A.2d 1280, 1282 (Pa. Super. 2004).

Commonwealth v. Crosley,

 
The Pennsylvania Crimes Code explains that in determining the amount of restitution 
the court must consider evidence of the extent of the injury suffered by the victim as 
presented by the district attorney.  Section 1106(c)(2) provides:  
6      Chapter 1      

Introduction

(2) At the time of sentencing the court shall specify the amount and 
method  of  restitution.  In  determining  the  amount  and  method  of 
restitution, the court:

(i)  Shall  consider  the  extent  of  injury  suffered  by  the  victim,  the 
victim’s request for restitution as presented to the district attorney 
in  accordance  with  paragraph  (4)  and  such  other  matters  as  it 
deems appropriate.

18 Pa.C.S.A. § 1106(c)(2). 

  When restitution is issued under Section 1106(a), a sentencing court is obligated 
to order full restitution regardless of the current financial resources of a defendant. 18 
, 155 A.3d 69, 86 (Pa. Super. 2017).
Pa.C.S.A. § 1106(c)(1)(i); 
Probationary Sentence

Commonwealth v. Holmes

In  imposing  an  order  of  probation,  the  trial  court  is  empowered  to  require  the 

 
defendant to make restitution pursuant to 42 PA.C.S.A. § 9763, which states: 

(a) General rule.

— In imposing probation, the court shall consider 
guidelines  adopted  by  the  Pennsylvania  Commission  on  Sentencing 
under section 2154 (relating to adoption of guidelines for sentencing) 
or  2154.1  (relating  to  adoption  of  guidelines  for  restrictive 
conditions)  and  specify  at  the  time  of  sentencing  the  conditions  of 
probation,  including  the  length  of  the  term  of  restrictive  conditions 
under subsection (c) or (d). The term of restrictive conditions under 
subsection  (c)  shall  be  equal  to  or  greater  than  the  mandatory 
minimum term of imprisonment required by statute.
(b) Conditions generally.

conditions upon the defendant as it deems necessary:

--The court may attach any of the following 

. . . 

crime.

in an affordable amount and on a schedule that the 
  (10)  To  make  restitution  of  the  fruits  of  the  crime  or  to  make 
defendant can afford to pay
reparations, 

, for the loss or damage caused by the 

3
42 Pa.C.S.A. § 9763(a)&(b)(10) (emphasis added).
  
3 

In 2019, the Legislature, in reference to probation, moved the condition of restitution from 42 Pa.C.S.A. § 9754(c)(8) to Section 9763(b)
(10). The language used in Section 9763(b)(10) is similar to the prior section.

7      Chapter 1      

Introduction

  When restitution is imposed as a condition of probation pursuant to 42 Pa.C.S.A. 
§ 9763(b)(10), its purpose is to rehabilitate the defendant and provide some redress 
to the victim. This gives the sentencing court the flexibility to fashion the condition to 
  617 A.2d 702, 706 (Pa. 1992). 
rehabilitate the defendant. 
Therefore,  the  requirement  of  a  nexus  between  the  loss  and  amount  of  restitution  is 
relaxed. See 

, 80 A.3d 1204, 1215 (Pa. 2013). 

Commonwealth v.  Harner,

Commonwealth v. Hall

Notably, restitution imposed under section 9763 differs from restitution imposed 
 
4
under section 1106
  (as part of a direct sentence) in that it requires a court to explicitly 
Commonwealth  v. 
consider  a  defendant’s  ability  to  pay  when  it  initially  imposes  the  total  amount  of 
Whatley
restitution,  which  cannot  exceed  the  loss  suffered  by  the  victim. 

, 221 A.3d 651 (Pa. Super. 2019)(decided under 42 Pa.C.S.A.  § 9754).

Furthermore, 18 Pa.C.S.A. § 1106 provides that a defendant’s compliance with an 

 
order of restitution may be a condition of probation or parole:

(b) Condition of probation or parole.--Whenever restitution has been 
ordered pursuant to subsection (a) and the offender has been placed 
on  probation  or  parole,  the  offender’s  compliance  with  such  order 
may be made a condition of such probation or parole.

18 Pa.C.S.A. § 1106(b).
Modification

5
 
  of a restitution order is possible as long as the sentencing court sets 
Modification
Commonwealth v. Ramos
some amount and method of restitution at the initial sentencing, and the requirements 
of Section 1106(c)(3) are met.  
, 197 A.3d 766, 779 (Pa. Super. 
2018).    However,  a  generalized,  open-ended  restitution  order  at  sentencing  with  the 
intent  to  “work  out  the  details  and  amount  later”  constitutes  an  illegal  sentence,  as 
would a sentencing court’s delegation to the probation department or another agency 
to determine the amount of restitution. 

If  the  initial  sentencing  order  satisfies  two,  inextricable  components  which  are 

 
derived from Section 1106(c), it can be modified at a later date: 

the time at which a restitution sentence must be imposed, that is, at 
the sentencing hearing; and the specific nature of such a sentence, that 
is, definite as to amount and method of payment.

Commonwealth v. Mariani

4  18 Pa.C.S.A. § 1106.
5  Modification of a restitution order is also discussed in Chapter 2, Section II(D).

, 869 A.2d 484, 486 (Pa. Super. 2005).  

8      Chapter 1      

Introduction

The  authority  to  modify  restitution  at  a  later  date  thereby  gives  the  trial  court  a 
 
practical  option  when  the  full  amount  of  restitution  cannot  be  determined  before 
sentencing under Pa.R.Crim.P. 704.  
, 197 A.3d 766, 770 n. 2 
(Pa. Super. 2018).  As stated by the Pennsylvania Supreme Court:

Commonwealth v. Ramos

id

We  recognize  the  tension  between  having  finality  in  the  restitution 
order at sentencing and the desire to have a sentence imposed speedily. 
Rule  704  of  the  Rules  of  Criminal  Procedure  requires  imposition  of 
a  sentence  within  90  days  of  conviction  or  the  entry  of  a  plea.  See 
Pa.R.Crim.P.  704(A)(1).  However,  full  restitution  amounts  are  often 
undeterminable  within  the  90–day  period.  The  Comment  to  Rule 
704 recognizes this and provides that if the full amount of restitution 
cannot be determined at the time of sentencing, the judge should state 
on the record the basis for determining the amount set at sentencing. 
.,  cmt.  ¶  20  (“In  all  cases  in  which  restitution  is  imposed,  the 
See 
sentencing judge must state on the record the amount of restitution, if 
determined at the time of sentencing, or the basis for determining an 
amount of restitution.”). Further, the legislature provides sentencing 
courts broad authority to amend restitution orders at any time, if the 
court provides its reasons for doing so as a matter of record. See 18 
Pa.C.S. § 1106(c)(3).

6
, 970 A.2d 1131, 1134 (Pa. 2009)(footnote omitted).

Commonwealth v. Dietrich

 

18 Pa.C.S.A. § 1106(c)(3) provides:

(3)  The  court  may,  at  any  time  or  upon  the  recommendation  of  the 
district attorney that is based on information received from the victim 
and  the  probation  section  of  the  county  or  other  agent  designated 
by the county commissioners of the county with the approval of the 
president  judge  to  collect  restitution,  alter  or  amend  any  order  of 
restitution made pursuant to paragraph (2), provided, however, that 
the court states its reasons and conclusions as a matter of record for 
any change or amendment to any previous order.

18 Pa.C.S.A. § 1106(c).

Therefore, modification is especially apt following a plea and immediate sentencing.  
 
However,  the  Commonwealth  must  still  be  prepared  to  present  the  sentencing  court 
with  the  necessary  evidence  to  support  the  imposition  of  restitution  at  the  time  of 
initial sentencing.  Stated another way, allowing for modification of an existing specific 
 The sentencing court cannot, of course, modify the amount of restitution without providing due process requirements of notice and an 
6 
restitution order cannot be used to circumvent or sidestep the principal requirements 
opportunity to be heard. Commonwealth v. Blair, --- A.3d ---, 2020 WL 1527225 (Pa. Super. 2020); Commonwealth v. Hobson, 45 A.2d 
22 (Pa. Super. 1982).

9      Chapter 1      

Introduction

of 18 Pa.C.S.A. § 1106(c).
 

B.  The Restitution Hearing

 
The  Commonwealth  has  the  burden  to  prove  the  amount  of  “full  restitution.”  18 
Pa.C.S.A. § 1106(c)(1).  Pennsylvania Rule of Criminal Procedure 705.1, which addresses 
restitution, became effective on July 1, 2016. The rule provides:

 

Rule 705.1. Restitution

(A)   At the time of sentencing, the judge shall determine what restitution, if any,   
         shall be imposed.

(B)   In any case in which restitution is imposed, the judge shall state in the sentencing   
        order:

1)    the amount of restitution ordered;
2)    the details of a payment plan, if any, including when   
         payment is to begin;
3)    the identity of the payee(s);
4)    to which officer or agency the restitution payment shall      
         be made;
5)    whether any restitution has been paid and in what 
         amount; and
6)    whether the restitution has been imposed as a part of the 
         sentence and/or as a condition of probation.

Pa.R.Crim.P. 705.1

 
In all cases in which restitution is imposed, the sentencing judge must state on the 
record the amount of restitution at the time of sentencing, whether it is a result of direct 
sentence or a probationary sentence.

The  plain  text  of  the  statute  requires  the  trial  court  to  specify  the 
amount of restitution at the time of the original sentencing as well as a 
method of payment. [18 Pa.C.S.A. § 1106(c)(2).] In addition, our cases 
unequivocally  hold  that  “[t]he  [trial]  court  [is]  not  free  to  delegate 
these duties to an agency.” 
, 850 A.2d 712, 
716 (Pa.Super.2004). This includes the county probation department. 
Id.;  see  also 
,  869  A.2d  484,  486  (Pa.
ipso facto
Super.2005) (stating, “an order of restitution to be determined later is 

Commonwealth  v.  Mariani

Commonwealth v. Deshong

 illegal”).
Commonwealth  v.  Gentry

,  101  A.3d  813,  818  (Pa.  Super.  2014).    “This  provides  the 
defendant with certainty as to his sentence, and at the same time allows for subsequent 
10      Chapter 1      

Introduction

Commonwealth v. Dinoia

modification, if necessary.” 
2002).

, 801 A.2d 1254, 1257 (Pa. Super. 

  When determining the amount of restitution, Section 1106(c)(2) requires a hearing 
at the trial court level by directing the trial court to  “consider the extent of injury suffered 
by the victim, the victim’s request for restitution as presented to the district attorney. . . 
and such other matters as it deems appropriate.” 18 Pa.C.S.A. § 1106(c)(2)(i). 

The Superior Court explained how a trial court should compute a restitution award 

 
as follows:

Although  restitution  does  not  seek,  by  its  essential  nature,  the 
compensation  of  the  victim,  the  dollar  value  of  the  injury  suffered 
by the victim as a result of the crime assists the court in calculating 
the appropriate amount of restitution. A restitution award must not 
exceed  the  victim’s  losses.  A  sentencing  court  must  consider  the 
victim’s  injuries,  the  victim’s  request  as  presented  by  the  district 
attorney and such other matters as the court deems appropriate. The 
court must also ensure that the record contains the factual basis for 
the  appropriate  amount  of  restitution.  In  that  way,  the  record  will 
support the sentence. 

Commonwealth 

Commonwealth v. Burwell
v. Pleger

, 934 A.2d 715, 720 (Pa. Super. 2007)(citations omitted). 

, 58 A.3d 790, 794 (Pa. Super. 2012), quoting 

C.  Restitution as a Direct Sentence vs. Restitution as a Condition of Probation

 

 

Restitution pursuant to 18 Pa.C.S.A. § 1106(a) is limited to:

(1)  Property of a victim if it has been stolen, converted or otherwise unlawfully 

(2)  The value of the aforesaid property if it has been substantially decreased as 

obtained; or

a direct result of the crime; or

(3)  For the personal injury of the victim if directly resulting from the crime.

 
Restitution  as  a  condition  of  probation  under  42  Pa.C.S.A.  §  9763  is  for  “loss  or 
damage caused by the crime.”  Although this statute includes the word “caused,” it does 
not contain the language directly resulting from the crime as does 18 Pa.C.S.A. § 1106(a). 
Case law has made clear that there is a significance to this difference in language. 

Specifically,  when  restitution  is  imposed  as  a  condition  of  probation  under  42 
 
Pa.C.S.A.  §  9763(b)(10),  rather  than  a  direct  sentence  under  the  Crimes  Code,  cases 
decided under the prior law stated that there need not be a direct nexus between offense 
and loss.  While restitution cannot be indiscriminate, an “indirect connection between 
11      Chapter 1      

Introduction

Commonwealth  v.  Harriott

,  919  A.2d 
the  criminal  activity  and  the  loss  is  sufficient.” 
234  (Pa.  Super.  2007)(Defendant  who  spit  on  a  police  officer after  her  arrest  for  DUI 
could be ordered to pay restitution as a condition of county intermediate punishment 
, 836 
for the cost of precautionary blood testing for the officer); 
A.931, 934 (Pa. Super. 2003) (Defendant who was convicted only of receiving some of 
the property stolen from a truck could be ordered to pay restitution as a condition of 
probation for the damage caused to the truck by the original thief.). 
Direct Sentence:

Commonwealth v. Kelly

may be imposed without regard to the defendant’s ability to pay.
 When incorporated as part of a defendant’s direct sentence, restitution 
is penal in nature and 
 
See 18 Pa.C.S.A. § 1106(c)(1)(i) (court shall order restitution “[r]egardless of the current 
financial resources of the defendant”). 
Probation:

 The addition of conditions to an order of probation, including restitution, 
is primarily directed at  rehabilitative goals and is intended to assist the defendant in 
leading a law-abiding life. In this context, restitution is imposed for losses or damages 
caused by the crime, and is to be set “in an affordable amount and on a schedule that the 
defendant can afford to pay.” 42 Pa.C.S.A. § 9763(b)(10). 

 
An  order  for  restitution  as  a  direct  sentence  continues  past  any  period  of 
Commonwealth v. Griffiths
supervision, while restitution ordered as a condition of probation terminates at the end 
of the probationary period. In 
, 15 A.3d 73 (Pa. Super. 2010), 
the  Superior  Court  stated,  in  dicta,  that  “an  order  of  restitution  [as  a  direct  sentence 
under 18 Pa.C.S.A. § 1106] is enforceable until paid.” 
, 15 A.3d at 78; see also 42 
Pa.C.S.A. § 9728(c) (“[n]otwithstanding [42 Pa.C.S.A. §] 6353 (relating to limitation on 
and change in place of commitment) or 18 Pa.C.S. § 1106(c)(2) (relating to restitution 
for injuries to person or property), the period of time during which such judgments shall 
have full effect may exceed the maximum term of imprisonment to which the offender 
could have been sentenced for the crimes of which he was convicted or the maximum 
term of confinement to which the offender was committed”).  

 Griffiths

Commonwealth v. Karth

Conversely,  when  restitution  is  ordered  as  a  condition  of  probation  under  42 
 
Pa.C.S.A. § 9763(b)(10), the restitution must be viewed as “a ‘condition’ that is required 
to be met in order to successfully complete . . . probation.”  
, 994 
A.2d 606, 610 (Pa. Super. 2010).  Therefore, “[o]nce the term of probation expires, so, 
too, must any conditions attached thereto,” including any condition requiring that the 
probationer pay restitution – regardless of whether the amount of restitution ordered 
en banc
has been paid in full.  
, 155 A.3d 69, 87 (Pa. Super. 
) (plurality) (explaining that, when restitution is ordered as a condition 
2017) (
of probation, the obligation to pay restitution “is discharged upon the expiration of the 
term of probation regardless of whether the obligation has been paid in full”).
 

D. Collection of Restitution

Commonwealth v. Holmes

; see also 

Id.

In  most  cases,  the  court  will  need  to  create  a  payment  plan  for  the  collection  of 

 
12      Chapter 1      

Introduction

restitution. 

 
If  restitution  is  imposed  as  a  condition  of  probation,  the  court  must  order  the 
defendant to pay the total amount of restitution “on a schedule that the defendant can 
afford to pay.” 42 Pa.C.S.A. § 9763(b)(10). The same is also true for restitution imposed 
as a direct sentence:

and method

 of restitution, the court ... May 
In determining the amount 
order restitution in a lump sum, by monthly installments or according 
to such other schedule as it deems just.

18 Pa.C.S.A. § 1106(c)(2). Whenever a defendant is unable to pay restitution “in a single 
remittance,” the payment plan must be based on:

the  defendant’s  financial  resources,  the  defendant’s  ability  to  make 
restitution and reparations and the nature of the burden the payment 
will impose on the defendant.

42 Pa.C.S.A. § 9730(b)(3). This statute also requires that payment plans be imposed after 
a hearing, so courts cannot, for example, simply apply a one-size fits-all approach to all 
, 191 A.3d 867, 873 
defendants who owe restitution. 
(Pa. Super. 2018) (vacating both sentence of imprisonment and payment plan where the 
court failed to make findings on the record regarding the defendant’s ability to pay). 

Commonwealth v. Smetana

 See 

Id.

•  Setting  realistic  payment  plans  can  help  avoid  the  need  for  further  court 
proceedings in the future by limiting the risk that the defendant will default.

  
 
results from the offender’s inability to pay:

A defendant cannot be incarcerated for the failure to pay restitution if the failure 

(iii)  Shall  not  order  incarceration  of  a  defendant  for  failure  to  pay 
restitution if the failure results from the offender’s inability to pay.

Commonwealth ex. 
18 Pa.C.S.A. § 1106(c)(2)(iii).  As with fines and costs, an affordable payment plan is a 
rel. Parrish v. Cliff
prerequisite to any punishment for nonpayment of restitution. See 

, 304 A.2d 158, 162 (Pa. 1973) (prohibiting incarceration of defendants 
who have not been given an opportunity to comply with “reasonable” payment plans in 
light  of  their  financial  resources).  Under  42  Pa.C.S.A.  §  9730(b),  the  sentencing  court 
must make a determination of whether the defendant is “financially able to pay” before 
it can take action upon a default in payments.

7
 

If the defendant is in default of a payment or advises the court that default is imminent, 
 
i.e., that the defendant cannot meet the original payment plan on a consistent basis, the 
 Issues involving contempt hearings are covered in Chapter 2, and probation violation proceedings are covered in Chapter 3.
7 
court may schedule a rehearing to determine a new payment plan. 42 Pa.C.S.A. § 9730.

13      Chapter 1      

Introduction

Generally, the collection of restitution is by the County’s Probation Department. 42 
 
Pa.C.S.A. § 9728(a); 18 Pa.C.S.A. § 1106(e). Although a sentence for restitution is to be 
considered a judgment in favor of the probation department, it is not a debt. However, the 
collection of restitution may be referred to a private collection agency. The sentencing 
court must make a determination that the offender is financially able to pay restitution 
before it may turn a delinquent account over to a private collection agency.  42 Pa.C.S.A. 
§ 9730(b)(2).

 
42 Pa.C.S.A. § 9728 provides that a “sentence . . . for restitution” shall be a “judgment 
in  favor  of  the  probation  department  upon  the  person  or  the  property  of  the  person 
sentenced or subject to the order.”  Subsection (c) further provides that “the period of 
time during which such judgments shall have full effect may exceed the maximum term 
of  imprisonment  to  which  the  offender  could  have  been  sentenced  for  the  crimes  of 
which he was convicted or the maximum term of confinement to which the offender was 
committed.” 

 
Restitution orders are automatically entered as civil judgments if the total amount—
combined with fines and costs—exceeds $1,000, and the clerk of courts has the option 
of doing so if the amount is less than $1,000. 

(1)    The  county  clerk  of  courts  shall,  upon  sentencing,  pretrial 
disposition  or  other  order,  transmit  to  the  prothonotary  certified 
copies  of  all  judgments  for  restitution,  reparation,  fees,  costs,  fines 
and penalties which, in the aggregate, exceed $1,000, and it shall be 
the duty of each prothonotary to enter and docket the same of record 
in his office and to index the same as judgments are indexed, without 
requiring the payment of costs as a condition precedent to the entry 
thereof.

(2)    The  clerk  of  courts,  in  consultation  with  other  appropriate 
governmental  agencies,  may  transmit  to  the  prothonotary  of  the 
respective  county  certified  copies  of  all  judgments  for  restitution, 
reparation, fees, costs, fines and penalties which, in the aggregate, do 
not exceed $1,000, and, if so transmitted, it shall be the duty of each 
prothonotary to enter and docket the same of record in his office and 
to  index  the  same  as  judgments  are  indexed,  without  requiring  the 
payment of costs as a condition precedent to the entry thereof.

42  Pa.C.S.A.  §  9728(b).  This  process  is  automatic,  as  the  law  mandates  that  the  clerk 
of  courts  transmit  the  financial  information  to  the  civil  Prothonotary  for  entry  as  a 
judgment 

 
A court also, upon application by the Commonwealth, may enter a restraining order 
or  injunction,  require  the  execution  of  a  satisfactory  performance  bond,  or  take  any 
other action to preserve the availability of property which may be necessary to satisfy 
14      Chapter 1      

Introduction

an anticipated restitution order. 42 Pa.C.S.A. § 9728(e).  

 
The payment of restitution is addressed at 42 Pa.C.S.A. § 9730 as follows, and now 
includes the use of credit and bank cards, as well as explicit authorization for a wage 
attachment: § 9730. Payment of court costs, restitution and fines

(a)  Method  of  payment

.--The  treasurer  of  each  county  may  allow 
the  use  of  credit  cards  and  bank  cards  in  the  payment  of  court 
costs,  restitution  and  fines  and  may  provide  for  automatic  periodic 
deductions  from  a  bank  account,  subject  to  the  agreement  of  the 
(a.1) Wage attachment
owner of the account.

.--A court may, at sentencing, assign an amount 
not greater than 25% of the defendant’s gross salary, wages or other 
earnings to be used for the payment of court costs, restitution or fines.

42 Pa.C.S.A. § 9730. Courts may impose the wage attachment at the time of sentencing 
pursuant  to  §  9730  (a.1).  However,  post-sentencing,  courts  may  impose  a  wage 
attachment only following a hearing at which the court determines that the defendant 
 at § 9730(b)(2). If the defendant is unable to pay, the court 
is “financially able to pay.” 
cannot impose a wage attachment.

Id.

 
The  legislature  has  also  made  community  service  available  as  an  alternative  to 
paying  restitution,  but  only  if  the  court  finds  that  the  defendant  is  unable  to  pay.  42 
Pa.C.S.A. § 9730(b)(3). The statute specifies that such community service must be “just 
and practicable under the circumstances.” 

 
No less than 50% of the money that a defendant pays goes towards restitution, with 
the remaining moneys to be used to pay fees, costs, and other court-ordered obligations: 

(g.1)    Payment.--No  less  than  50%  of  all  moneys  collected  by  the 
county probation department or other agent designated by the county 
commissioners of the county with the approval of the president judge 
of  the  county  pursuant  to  subsection  (b)(1)  and  deducted  pursuant 
to  subsection  (b)(5)  shall,  until  the  satisfaction  of  the  defendant’s 
restitution  obligation,  be  used  to  pay  restitution  to  victims.  Any 
remaining moneys shall be used to pay fees, costs, fines, penalties and 
other court-ordered obligations.

42 Pa.C.S.A. § 9728(g.1). 

 
However,  if the  sentencing  court does not  specify the percentage,  then  only  50% 
of  the  money  that  a  defendant  pays  goes  towards  restitution,  with  the  other  50% 
going towards fines and costs. See also 204 Pa. Code 29.353(I)(A)(3). The trial court, 
15      Chapter 1      

Introduction

however, can specify in its sentencing order that as much as 100% of payments first go 
to restitution until it is paid in full.

  Whenever  a  defendant  defaults  on  a  payment  plan,  the  court  has  the  authority 
to  enforce  its  restitution  order,  either  through  its  contempt  powers,  or—if  payment 
has been made a condition of probation—probation violation proceedings. The court 
must hold a hearing to determine whether the defendant is “financially able to pay.” 42 
Pa.C.S.A. § 9730(b). This hearing must occur before a defendant is punished, even if the 
court has previously held such a hearing:

Judges  must  hold  separate  hearings  for  each  alleged  contemnor  to 
ascertain  whether  any  noncompliance  flowed  from  (a)  deliberate 
disregard  of  the  court’s  order  or  (b)  circumstances  beyond  the 
defendant’s control. This must be done every time someone appears 
or  reappears  for  a  costs-and-fines  proceeding,  because  the  person’s 
financial situations may have changed since the last time she or he was 
before the court.
Commonwealth v. Mauk

, 185 A.3d 406, 411 (Pa. Super. 2018).

Bearden  v.  Georgia

Depending  on  the  outcome  of  that  hearing,  the  court  may  punish  the  defendant, 
modify the payment plan, or permit the defendant to perform community service. The 
critical  question,  which  Pennsylvania  courts  have  imported  from  the  U.S.  Supreme 
Court  question  in 
,  461  U.S.  660,  672-673  (1983),  is  whether  a 
defendant has “willfully” refused to pay. These issues are discussed at length later in 
this benchbook.

8
 

Procedures regarding default

In summary, if a defendant defaults in the payment of restitution after imposition of 
 
sentence, a hearing should be scheduled to determine whether the defendant is financially 
capable of making payments.  Section 9730(b), 
, allows 
for modification of a payment plan when the defendant’s circumstances have changed, 
and grants options to the sentencing court to alter the schedule of payments as is just and 
practicable under the circumstances.  The sentencing court may even consider replacing 
an order of restitution with community service if it is established that the defendant is 
unable to pay.
E.  Appellate Review

9
   

Regarding  challenges  to  the  trial  court’s  imposition  of  restitution,  the  appellate 
 
courts have drawn a distinction between those cases where the challenge is directed to 
the trial court’s authority to impose restitution and those cases where the challenge is 
 Procedures and options when a default occurs are discussed in Chapter 2, Section VI(D), Enforceability of Restitution Payments, and  
8 
   A challenge may 
against the amount of the restitution order, under the circumstances.
Chapter 3, Section VII Revocation Proceedings – Failure to Pay.
9 
 Procedures and options when a default occurs are discussed in Chapter 2, Section VI(D), Enforceability of Restitution Payments.
10   See also, 20A West’s Pa. Prac., Appellate Practice § 2119:22.

10

16      Chapter 1      

Introduction

be raised by either the defendant or the Commonwealth.

11
  

 
In a recent decision, the Pennsylvania Supreme Court fully explained the differences 
in an appeal involving restitution and the challenge to a sentence which sounds in legality 
or the discretionary aspects of the sentence and the issue preservation implications of 
those determinations. In 
 --- A.3d ---, 2020 WL 5822534 (Pa. 
Oct. 1, 2020), the Supreme Court stated, in reference to a legality challenge:

Commonwealth v. Weir,

In the context of issue preservation principles, Section 1106 requires 
an  integrated  analysis  of  its  relevant  provisions.  Section  1106(a) 
is  mandatory  in  its  directive  and  removes  any  discretion  from  the 
sentencing court to impose restitution as punishment upon conviction 
of a crime under two circumstances: where the property of a victim 
has  been  stolen,  converted  or  otherwise  unlawfully  obtained  or  its 
value has been substantially decreased as a direct consequence of the 
crime, 18 Pa.C.S.A. § 1106(a)(1), or where the victim, if an individual, 
suffered  personal  injury  resulting  from  the  crime,    18  Pa.C.S.A.  § 
1106(a)(2).  Thus,  the  failure  of  a  trial  court  to  impose  restitution 
where the circumstances described in Section 1106(a)(1) or (2) are 
established results in an illegal sentence. Conversely, and as relevant 
to  a  defendant’s  challenge,  if  the  statutory  circumstances  are  not 
established and the sentencing court orders restitution, the challenge 
to  the  sentence  implicates  its  legality.  In  either  of  these  sentencing 
scenarios,  a  challenge  to  the  sentence  of  restitution  need  not  be 
preserved.

, --- A.3d at ---, 2020 WL 5822534, *10.

Commonwealth v. Weir

As  to  a  challenge  to  the  discretionary  aspects  of  a  sentence  which  includes  a 

 
restitution order, the Supreme Court stated:

Moreover,  the  discretionary  nature  of  the  amount  of  restitution 
is  established  in  Section  1106(c)(2),  which  sets  forth  the  factors 
to  be  considered  by  the  sentencing  court  in  fashioning  an  award  of 
11   For example, in Commonwealth v. Pleger, 934 A.2d 715 (Pa. Super. 2007), the Commonwealth appealed the sentencing court’s decision 
restitution:  “...  the  court  shall  consider  the  extent  of  injury  suffered 
to limit the order of restitution because the victim had signed a general release in favor of the defendant as a result of civil settlement 
which was paid by the defendant’s insurer.  The Superior Court found:

In the present case, the sentencing judge refused to consider restitution (beyond the aforesaid $900.00) because 
the victim had signed a general civil release, having obtained a settlement from Appellee which was paid by his 
insurer. The court reasoned that the release precluded its consideration of restitution. We find this determination 
to be legal error. The victim could no more release Appellee from a potential sentence of restitution than from a 
potential sentence of incarceration or probation. All such matters are within the sentencing court’s authority and 
duty. It was not for the victim to circumscribe the criminal court’s powers or obligations.

Id. at 720.

17      Chapter 1      

Introduction

by the victim, the victim’s request for restitution as presented to the 
district attorney ... and such other matters as it deems appropriate.” 
18 Pa.C.S. § 1106(c)(2)(i). This language, placing the determination of 
the amount of restitution under the sentencing court’s consideration 
based on the stated factors and “other matters it deems appropriate,” is 
the clearest possible indication of the General Assembly’s recognition 
that fashioning the restitution order remained in the exercise of the 
sentencing  court’s  discretion.  [An  appellant’s]  discontent  with  the 
amount  of  restitution  and  the  evidence  supporting  it  is  a  challenge 
to the sentencing court’s exercise of discretion, not to the legality of 
the sentence. To access review of his challenge by the Superior Court, 
[an appellant is] required to file a Pa.R.A.P 2119(f) statement in his 
appellate brief.

Id.

 at *11.

Authority  Appeal  from  Restitution  Order

  –  challenge  directed  to  the  trial  court’s 
statutory authority to impose restitution, - considered a challenge to the legality of the 
sentence.
Discretionary Appeal from Restitution Order

 – challenge directed at the amount of 
the restitution order under the circumstances presented to the trial court - considered a 
challenge to the discretionary aspects of the sentence.

  Where the court’s authority to impose restitution is challenged, such as on the basis 
that the trial court’s order of restitution is to a person who is not considered a “victim” 
of the crime as defined in the Crimes Code under Section 1106(h), it is a challenge which 
Commonwealth v. Langston
implicates  the  legality  of  the  restitution  sentence  and  is  consequently  non-waivable.  
, 904 A.2d 917, 921 (Pa. Super. 2006).  “Restitution” and 

“Victim” are defined in 18 Pa.C.S.A. § 1106 as:

(h)  Definitions.--As  used  in  this  section,  the  following  words  and 
phrases shall have the meanings given to them in this subsection:

“Restitution.” The return of the property of the victim or payments in 
cash or the equivalent thereof pursuant to an order of the court.

“Victim.” As defined in section 103 of the act of November 24, 1998 (P.L. 
882, No. 111), known as the Crime Victims Act.1 The term includes an 
affected government agency, the Crime Victim’s Compensation Fund, 
if  compensation  has  been  paid  by  the  Crime  Victim’s  Compensation 
Fund to the victim, any insurance company that has compensated the 
victim for loss under an insurance contract and any business entity.

18      Chapter 1      

Introduction

18 Pa.C.S.A. § 1106(h).

Commonwealth v. 
Issues related to the legality of sentence are questions of law; as a result, the appellate 

 
Weir,
standard of review is de novo and the scope of review is plenary.  

 --- A.3d at ---, 2020 WL 5822534, *4.

Commonwealth 
A challenge to the amount of restitution under the circumstances presented to the 

 
v. Walker
trial court is a challenge to the discretionary aspects of sentence. See 

, 666 A.2d 301, 307 (Pa. Super. 1995) (stating that challenges alleging that a 
sentence of restitution is excessive under the circumstances of the case are challenges to 
the discretionary aspects of sentencing). 

In  the  Interest  of  M.W.

In  an  earlier  decision, 

 
,  725  A.2d  729  (Pa.  1999),  the 
Pennsylvania Supreme Court addressed the confusion surrounding whether an appeal 
challenges the discretionary aspects of sentencing rather than the legality, and clarified 
that a claim that the trial court lacked statutory authority to impose restitution implicates 
the legality of sentence, whereas a claim that the amount of restitution is excessive under 
the circumstances presented to the trial court implicates the discretionary aspects of 
sentencing. 

 at 731 n. 4. 

Id.

An  appellant  challenging  the  discretionary  aspects  of  his  sentence,  in  regard  to 
 
a  restitution  order,  must  comply  with  the  requirements  for  raising  a  challenge  to  the 
discretionary aspects of a sentence. 
 708 A.2d 1279, 1281 (Pa. 
Super. 1998). There is a four-part test:

Commonwealth v. Colon,

[W]e conduct a four-part analysis to determine: (1) whether appellant 
has  filed  a  timely  notice  of  appeal,  see  Pa.R.A.P.  902  and  903;  (2) 
whether the issue was properly preserved at sentencing or in a motion 
to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether 
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether 
there is a substantial question that the sentence appealed from is not 
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury,

F.  The “Causal Connection” 

 992 A.2d 162, 170 (Pa. Super. 2010).

As a general rule, when restitution is imposed under 18 Pa.C.S.A. § 1106(a) as a direct 
sentence, there must be a specific nexus between the amount of restitution ordered by a 
trial court and the crime committed. 

Case  law  speaks  of  restitution  imposed  under  §  1106(a)  as  being 
Interest  of  M.W.
a  direct  sentence,  rather  than  just  a  condition  of  probation  or 
,  725  A.2d  729,  731,  732 
intermediate  punishment. 

19      Chapter 1      

Introduction

Commonwealth v. Deshong

, 850 A.2d 712, 715, 716 (Pa.
(Pa. 1999); 
restitution  is  proper  only  if  there  is  a 
Super. 2004). Additionally, because of the statutory language “directly 
direct  causal  connection  between  the  crime  and  the  loss.  In  re 
resulting  from  the  crime,” 
M.W.

Commonwealth v. Popow

,  725  A.2d  at  732  (holding  that  restitution  imposed  as  a  direct 
sentence  under  18  Pa.C.S.A.  §  1106(a)  must  result  directly  from  the 
, 844 A.2d 13, 19 (Pa. Super.2004) 
crime); 
(holding restitution for medical bills was improper under § 1106(a) 
Commonwealth  v. 
due to lack of direct causation where appellant was acquitted of cutting 
Walker
victim  and  only  convicted  of  threatening  him); 

,  666  A.2d  301,  310  (Pa.  Super.1995)  (holding  restitution 
for  medical  bills  was  proper  under  §  1106(a)  because  appellant’s 
drunk  driving  caused  a  two-car  accident  which  directly  injured  the 
occupants of the other vehicle); 
, 407 A.2d 
24, 25, 28 (Pa. Super.1979) (holding restitution for injury to property 
was proper under § 1106(a) because appellant’s drunk driving caused 
him to collide with victim’s house, thereby damaging it).

Commonwealth v. Fuqua

Commonwealth v. Harriott

Commonwealth v. Harner,

, 919 A.2d 234, 237-238 (Pa. Super. 2007)(emphasis added).  
Similarly, in 
 617 A.2d 702 (Pa. 1992),  the Supreme Court 
noted  that  Section  1106  “applies  only  for  those  crimes  to  property  or  person  where 
there has been a loss that flows from the conduct which forms the basis of the crime for 
which a defendant is held criminally responsible.” 617 A.2d at 706.

Commonwealth v. Kinnan

However, when restitution is imposed as a condition of probation under 42 Pa.C.S.A. 
 
§ 9763, the required nexus between the defendant’s criminal conduct and the victim’s 
loss is relaxed.  
, 71 A.3d 983, 986 (Pa. Super. 2013) (decided 
under Section 9754).  

However,  when  restitution  is  ordered  as  a  condition  of  probation, 
the sentencing court is accorded the latitude to fashion probationary 
conditions designed to rehabilitate the defendant and provide some 
measure of redress to the victim.... Thus, the requirement of a nexus 
between  the  damage  and  the  offense  is  relaxed  where  restitution  is 
ordered as a condition of probation.

Commonwealth v. Hall

Commonwealth v. Kinnan

, 80 A.3d 1204, 1215 (Pa. 2013).  Even with this relaxed nexus, 
“there  must  be  at  least  an  indirect  connection  between  the  criminal  activity  and  the 
loss.” 
 

, 71 A.3d 983, 986 (Pa. Super. 2013).  

III. RESTITUTION RESOURCES

The  Pennsylvania  Office  of  Victim  Advocate  supports  a  website  dedicated  to  the 

 
recovery of restitution: 
20      Chapter 1      

Introduction

https://www.ova.pa.gov/Programs/RestitutionTaskForce/Pages/default.aspx

The website includes a downloadable document Understanding Restitution When 

 
You Are a Victim of a Crime.

 
The  Pennsylvania  Office  of  Victim  Services  also  maintains  a  website  including  a 
claim form to be used with the Pennsylvania Victims Compensation Assistance Program. 

https://pcv.pccd.pa.gov/available-services/Pages/Victims-Compensation.aspx

State  and  city  programs  for  victims  of  crime  are  listed  in  an  inter-active  map  of 

 
Pennsylvania:

https://pcv.pccd.pa.gov/available-services/Pages/Interactive-Map.aspx

The possibility of restitution in a juvenile case is discussed on the website of the 

 
Juvenile Law Center:

https://jlc.org/resources/restitution-pennsylvania

IV.  TASK FORCE RECOMMENDATIONS

 

 
In  October  2011,  the  Pennsylvania  Office  of  the  Victim  Advocate  convened  the 
Restitution in Pennsylvania Task Force.  The final report of the Task Force contained 47 
recommendations for the judicial, legislative and executive branches of government. A 
summary of the recommendations are grouped into four overarching categories.  Those 
recommendations which relate to trial courts are printed in bold lettering:

2.  Develop  restitution  bench  books  for  the  juvenile  justice  and 

Uniformity of Policy and Practice Recommendations: 
 
1.  Convene  a  group  of  stakeholders  to  further  review  existing 
restitution law and compile recommendations for judicial, legislative or 
department/agency clarifications or revisions. 
 
criminal justice systems.
 
3. Upon completion of the restitution bench books, develop quick 
reference sheets for restitution in the criminal and juvenile justice systems.
 
4. In conjunction with the development of restitution bench books, 
develop  educational  strategies,  training  and  technical  assistance  for 
bench, bar, victim services, police and probation. 
5. Develop a toolkit which would clarify policy and practice around 
 
restitution  issues,  identify  evidence  based  and/or  promising  practices, 
clarify available enforcement tools and provide helpful articles, brochures, 
etc. 
 

6.  Encourage  Administrative  Office  of  Pennsylvania  Courts  and/or 

21      Chapter 1      

Introduction

the Court Rules Committee to standardize a restitution order for use at 
sentencing/disposition. 
 
7.  Encourage  counties  to  establish  collections  enforcement  units 
and  hire  dedicated  staff  to  solely  focus  on  collections  enforcement 
efforts within the jurisdiction. 
8.  Encourage  President  Judges  to  establish  restitution,  fines  and 
 
costs contempt courts allocating the judicial resources to preside over 
such hearings. 
9. The General Assembly should consider amending Title 42 Section 
 
9728 (b)(5) to establish a mandated minimum percentage threshold for 
deductions from inmate personal accounts for both county correctional 
facilities and the Pennsylvania Department of Corrections. 
10.  Encourage  counties  to  provide  Pennsylvania  Department 
 
of  Transportation  with  non-payment  information  so  that  the  newly 
enacted mandate (Act 146 of 2012) for drivers’ license suspension can 
be utilized, as appropriate. 
 
11. Make wider use of dunning letters or overdue notices to notify 
or  remind  defendants  that  their  payments  are  past  due  and  of  the 
sanctions that may be imposed by the court if they do not come into 
payment plan compliance. 
 
both the criminal and juvenile justice systems. 
13.  Expand  the  availability  of  programs  and  processes  such  as  Victim 
Offender  Conferencing/Dialogue  throughout  both  the  criminal  and 
juvenile justice systems.

12. Develop restitution funds and restitution programs throughout 

Strengthening Accountability Recommendations: 
 
 
14.  Reinforce  the  mandate  that  all  Clerks  of  Court  comply  with 
Act  84  of  1998  and  transmit  “copies  of  all  orders  for  restitution  and 
amendments  or  alterations  thereto,  reparation,  fees,  costs,  fines  and 
penalties”  to  the  Pennsylvania  Department  of  Corrections  for  state 
sentenced  inmates  and  to  the  county  correctional  facility  for  county 
sentenced inmates. 
15. Reinforce the mandate that all Clerks of Court comply with the 
 
Act 84 of 1998 requirement to file civil judgments when a case balance 
reaches or exceeds $1,000 and to exercise the option to file below $1,000 
if effective in a particular case to enforce payment compliance. 
 
Pennsylvania. 
 
17.  Establish  performance  measures  for  agencies  supervising 
probationers  and  parolees  relative  to  the  payment/collection  of 
restitution. 
 
18.  Counties  should  conduct  annual  reviews  to  ensure  that 
restitution collections are not superseded by the collection of county-
assessed  prison  room  and  board  rates  and  other  county-established 

16.  Provide  support  for  on-going  research  regarding  restitution  in 

22      Chapter 1      

Introduction

fees and payment allocation priorities. 
19.  Strengthen  existing  tools  to  enhance  restitution  collection 
 
with  particular  attention  to  the  issue  of  collecting  restitution  from 
adjudicated delinquents between the ages of 18 and 21. 
 
20. Encourage the Juvenile Court Judges Commission to work with 
the Pennsylvania Council of Chief Juvenile Probation Officers to create or 
modify  existing  juvenile  justice  data  collection  and  reporting  processes 
to accurately and in detail track and publish county-specific information 
regarding the ordering and collection of restitution. 

24.  Establish  a  web-based  system  for  victims/survivors  to  update 

Coordination of Information Recommendations: 
 
 
21. Identify an overarching agency or organization to continue the 
efforts of the Restitution in Pennsylvania Task Force, such as Pennsylvania 
Commission  on  Crime  and  Delinquency,  Administrative  Office  of 
Pennsylvania Courts or the Office of the Victim Advocate.
22.  Establish  or  agree  to  a  unique  individual  identifier  to  be  used 
 
across executive agencies and the judicial branch to better match records 
pertaining  to  individuals  owing  restitution,  court  costs  and  fines  in  the 
commonwealth  of  Pennsylvania  within  databases  i.e.,  Pennsylvania 
Department  of  Transportation,  Pennsylvania  Department  of  Public 
Welfare and Administrative Office of Pennsylvania Courts’ records. 
 
23. Develop the capacity for Administrative Office of Pennsylvania 
Courts, the courts, Pennsylvania Department of Corrections, Office of the 
Victim Advocate, Pennsylvania Board of Probation and Parole and similar 
county-level  agencies  to  share  information  to  ascertain  a  defendant’s 
total fines, costs, and restitution payments owed across all cases. 
 
personal contact information related to their restitution order. 
 
25.  Encourage  all  counties  to  establish  communication  protocols 
to determine whether individuals are in payment plan compliance with 
respect to public assistance eligibility. 
26. Place defendants on a single electronic payment plan (including 
 
restitution owed on juvenile delinquency cases) in the Common Pleas 
Case Management System and/or the Magisterial District Judge System 
applications  maintained  by  the  Administrative  Office  of  Pennsylvania 
Courts for Courts of Common Pleas and Magisterial District Courts end 
users. 
 
27.  Enable  the  identification  and  collection  of  restitution  owed 
in delinquency cases from offenders under the jurisdiction of criminal 
courts,  adult  probation  departments,  Pennsylvania  Department  of 
Corrections and Pennsylvania Board of Probation and Parole. 
 
28.  Encourage  counties  to  enter  warrants  surrounding  the  issue 
of  failing  to  pay  restitution,  fines,  and  costs,  and/or  failure  to  appear 
for said proceedings into Commonwealth Law Enforcement Assistance 
Network/National  Crime  Information  Center,  as  appropriate.  Such 

23      Chapter 1      

Introduction

action will assist in the location of offenders outside of the originating 
jurisdiction and once located could result in the immediate collection of 
monies without the necessity to extradite/transport offenders.
 
29.  Clarify  accepted  documentation  and  practice  for  Pennsylvania 
Department of Corrections in order to maximize the collection of restitution 
from  inmates;  and  modify  required  forms  to  include  all  outstanding 
restitution, fines and costs owed by an individual upon commitment to 
the Pennsylvania Department of Corrections. 
30. Attach priority to the collection of restitution, fines and costs 
 
in  the  development  of  the  Common  Pleas  Case  Management  System 
delinquency module. 
 
31. The Supreme Court of Pennsylvania should consider providing 
a  capacity  to  address  collections  performance  measures  and  promote 
evidence-based and/or promising practices to improve the collection of 
restitution. 
32.  Pennsylvania  Commission  on  Crime  and  Delinquency,  through 
 
Criminal  Justice  Advisory  Boards,  should  conduct  training  and  share 
information  with  counties  and  prison  boards  on  the  evidence-based 
and  promising  practices  of  other  counties  that  improve  the  restitution 
processes, including collection methods, prison policies, costs, etc. 
 
33. Create or modify existing criminal justice data collection and 
reporting processes to accurately and in detail track and publish county-
specific information regarding the ordering and collection of restitution. 
34. Provide practical information about restitution to victims. 
 
35. Provide practical information about restitution to defendants. 
 

Expansion of Authority Recommendations: 
 
 
36. Maintain the current mandatory threshold of filing civil judgments 
as  per  Title  42  Section  9728  (b)(1)  when  “judgments  for  restitution, 
reparation, fees, costs, fines and penalties which, in the aggregate, exceed 
$1,000.” 
 
37.  The  General  Assembly  should  consider  amending  Title  42 
Section 9728 (b)(5) to mandate both county correctional facilities and the 
Pennsylvania Department of Corrections to make deductions from inmate 
personal accounts. 
 
38. Expand Pennsylvania Department of Transportation’s authority 
to suspend and/or prohibit renewal of driver licenses for payment non-
compliance.  [It  is  noted  that  this  recommendation  was  accomplished 
through the passage of Act 146 of 2012.]
 
39.  The  General  Assembly  should  consider  amending  relevant 
statutes  to  authorize  counties  or  courts  to  suspend  or  prohibit  the 
issuance of state-issued licenses when the applicant is delinquent in the 
payment  of  restitution,  fines  or  costs.  Types  of  licenses,  registrations 
or  other  authorizations  include,  but  are  not  limited  to:  driver’s  license; 
hunting; fishing; professional licenses; vehicle registrations; etc. License 

24      Chapter 1      

Introduction

limitations  or  suspensions  shall  be  based  on  an  individual  case  by  case 
determination. 
 
40.  The  General  Assembly  should  consider  amending  Title  42 
Section 9728 (g) Costs, etc., to clearly state that costs incurred by counties 
in  support  of  collections  enforcement  efforts  (staff,  overhead)  shall  be 
borne by defendants. 
 
41. The General Assembly should consider amending Title 42 Section 
9730 adding section (a. 1) to clarify the authority of the court to assign the 
wages of a defendant who agrees to an assignment of income of not more 
than 25% of the defendant’s gross salary, wages or other earnings to the 
court for payment of any restitution, fines or court cost. This amendment 
should also impose obligations on employers in this regard. 
42.  The  Criminal  Procedural  Rules  Committee  should  consider  re-
 
visiting  Pa.R.Crim.P.  535  and  recommend  the  Pennsylvania  Supreme 
Court adopt a revision authorizing the sentencing court to order any cash 
bail  money  posted  by  the  defendant  to  be  applied  to  any  restitution, 
court costs or fines imposed. Alternatively the General Assembly should 
consider  amending  Title  42  adding  a  Section  5703  to  provide  for  bail 
money posted by a defendant to be applied to restitution, fines and costs.
43.  The  General  Assembly  should  consider  authorizing  courts  to 
 
order wage attachment for defendants who have been found in contempt 
for nonpayment of restitution, costs or fines. 
44.  The  General  Assembly  should  consider  authorizing  courts 
 
to  order  wage  attachment  for  defendants  who  have  the  ability  to  pay 
restitution, costs or fines. 
 
45.  The  United  States  Congress  should  consider  amending  the 
Internal Revenue Code of 1986 Section 6402 to require the IRS to pay any 
state judicial debt to include overdue costs, fines and/or restitution from 
any federal income tax refund due to a delinquent defendant. 
46.  The  General  Assembly  should  consider  enacting  or  amending 
 
statute  to  require  the  Pennsylvania  Department  of  Revenue  and 
Pennsylvania  Lottery  to  pay  any  state  judicial  debt  to  include  overdue 
restitution, costs and/or fines from any state income tax refunds and/or 
lottery winnings. 
 
47.  The  Criminal  Procedures  Rules  Committee  should  consider 
examining  current  court  rules  and  the  rules  of  other  jurisdictions  to 
consider whether any rules should be amended or new rules adopted to 
improve the collection of restitution.

Restitution  in  Pennsylvania

2013), available at:

25      Chapter 1      

,  Task  Force  Final  Report,  (Office  of  the  Victim  Advocate, 

http://victimsofcrime.org/docs/default-source/restitution-toolkit/
restitution-taskforce_final-report-2013.pdf?sfvrsn=2.

Introduction

26      Chapter 1      

Mandatory Restitution at Sentencing

Chapter Two                                                 Table of Contents
Mandatory Restitution at Sentencing

I. 

TRIAL COURT CONSIDERATIONS  ..................................................................................3

A.  Mandatory Restitution and Designation of “Victim”  ...............................3 

1.  The Relevant Statutes  .................................................................................3

2.  The Definition of a “Victim” .......................................................................4

B.  No Retroactive Effect to Amendments  ..........................................................8

II.  MANDATORY RESTITUTION ORDER AT SENTENCING ............................................8

A.  Statutory Creation  ...............................................................................................8

B.  Sentencing Court’s Responsibility ...............................................................11

C.  Priorities of Restitution Payments  .............................................................17

D. Modification  ........................................................................................................19

E.  Limitations When Restitution Can Be Imposed  ......................................20

F.  Direct Sentence vs. Probationary Sentence ...............................................21

III.  CLASSIFICATION OF “VICTIM”  ....................................................................................22

A.  Historical Review of a “Victim” .....................................................................22

B.  Current Definitions of “Victim”  ....................................................................24

C.  Examples ..............................................................................................................25

1.  Compensation for Victim Injury ............................................................25

2.  The Crime Victim’s Compensation Fund  ............................................26

3.   Payments by Other Government Agency  ..........................................27

4.   Payments by Insurance Companies  ....................................................32

IV.  PROCEDURE 

...................................................................................................................34
 

A.  Advisement at Time of Guilty Plea...............................................................35
B.  Necessity of a Hearing  .....................................................................................36

C.  The Sentencing Hearing ..................................................................................37

D.  Restitution Not Affected by Bankruptcy  ...................................................39

. 
V

BURDEN OF PROOF .........................................................................................................42  

A.  Burden of Proving Entitlement .....................................................................42

B.  Standards  ............................................................................................................44

1.  Burden of Proving Entitlement – Summary  ......................................44   

2.  Burden of Proof  ...........................................................................................45

C.  Amount of Restitution  .....................................................................................47

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  
  

  

  

  

  

  

  

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1      Chapter 2      

Mandatory Restitution at Sentencing

VI.  Restitution Payments  ...................................................................................................49

 

 

 

 

 

 

 

 

  

  

  

  

  

  

  

  

A.  Amount and Method of Payment  ................................................................49

B.  Causal Connection  ...........................................................................................50

C.  Method of Payment ..........................................................................................52

D.  Enforceability of Restitution Payments  ...................................................54

E.  Payments During Incarceration  ..................................................................60

F.  Relevance of Jury’s Verdict  ...........................................................................61

G.  Civil Remedies and Discharge of Restitution  .........................................62

H.  Payments from Victims Compensation Assistance Program  ............64

VII.  STANDARD OF REVIEW UPON APPEAL ....................................................................65

2      Chapter 2      

Mandatory Restitution at Sentencing

Chapter Two

Mandatory Restitution at Sentencing

I.  TRIAL COURT CONSIDERATIONS

A.  Mandatory Restitution and Designation of a “Victim”

Provision of 

 
Section 9721 of the Sentencing Code and 
 statutes predicate restitution on who qualifies as a “victim”. 

restitution is mandatory to a “victim” of a defendant’s crime under both 
tion 1106 of the Crimes Code.  Both of these

1. The Relevant Statutes

sec

 

 

  Section 9721 of the Sentencing Code, regarding sentencing generally, provides

§ 9721. Sentencing generally

(a) General rule.--In determining the sentence to be imposed the court 
shall, except as provided in subsection (a.1), consider and select one or 
more of the following alternatives, and may impose them consecutively 
or concurrently:

(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.
. . .(c) Mandatory restitution.--

to  compensate  the  victim
in subsection (a) of this section 

the court shall order the defendant 
In addition to the alternatives set forth 

  of  his  criminal  conduct  for  the  damage 
or injury that he sustained. For purposes of this subsection, the term 
“victim” shall be as defined in section 479.1 of the act of April 9, 1929 
(P.L. 177, No. 175), known as The Administrative Code of 1929.

42 Pa.C.S.A. § 9721. (Emphasis added). 

Section  1106(a)  of  the  Crimes  Code  more  specifically  provides  for  mandatory 
 
restitution  to  victims  suffering  harm  as  a  direct  result  of  a  defendant’s  crimes.    This 
Section provides:

3      Chapter 2      

Mandatory Restitution at Sentencing

  § 1106.  Restitution for injuries to person or property

 

(a) General rule.--Upon conviction for any crime wherein:

victim

(1) property of a 
 has been stolen, converted or otherwise 
direct
unlawfully  obtained,  or  its  value  substantially  decreased  as  a 
directly

 result of the crime; or

victim

(2) the 
resulting from the crime, 

, if an individual, suffered personal injury 

 

the offender shall be sentenced to make restitution in addition to the 
punishment prescribed therefor.

18 Pa.C.S.A. §1106(a). (Emphasis added).

The  Pennsylvania  Supr

Commonwealth  v.  Harner
,

 
eme  Court  has  held  that  Section  1106(a)  “applies  only  for 
those  crimes  to  property  or  person  where  there  has  been  a  loss  that  flows  from  the 
see  also
conduct  which  forms  the  basis  of  the  crime  for  which  a  defendant  is  held  criminally 
Commonwealth v. Pappas
 
accountable.” 
 
, 845 A.2d 829, 842 (Pa. Super. 2004) (holding that restitution 
under  Section  1106(a)  may  be  imposed  only  where  the  victim  suffered  a  loss  that 
flows from the criminal conduct that forms the basis of the crime).

617  A.2d  702,  706  (Pa.  1992); 

To determine the correct amount of restitution, a “but-for” test is used—damages 
 
Commonwealth v. Oree
which occur as a result of the crime are those which should not have occurred but for 
the defendant’s criminal conduct. 
, 911 A.2d 169, 174 (Pa. Super. 
Commonwealth  v. 
2006).  Therefore,  there  must  be  a  direct  link  between  the  crime  and  the  requested 
Barger,
damages  for  restitution  to  be  ordered  under  Section  1106(a). 

Commonwealth v. Harriott
 

en banc

See

 956 A.2d 458, 465 (Pa. Super. 2008) (

, 919 
A.2d 234, 238 (Pa. Super. 2007) (explaining that restitution ordered under Section 1106 
is “proper only if there is a direct causal connection between the crime and the loss”).
2.  The Definition of a “Victim”

); 

 
Both  Section  9721(c)  and  Section  1106(a)  refer  to  a  “victim”,  but  defining  who
  qualifies as a “victim” for purposes of ordering mandatory restitution can be confusing
 due to incorporation by reference and legislative amendments.

Prior Version of 18 Pa.C.S.A. §1106

 
Section 9721(c) requires a court to order restitution to a victim for damage resulting 
from a defendant’s criminal conduct. The statute provides that “the term ‘victim’ shall be 
as defined in section 479.1 of the act of April 9, 1929 (P.L. 177, No. 175), known as The 
4      Chapter 2      

Mandatory Restitution at Sentencing

Administrative Code of 1929.” Section 479.1 however, was repealed by the act of May 15, 
1998 (P.L. 882, No. 111, § 5103), also known as the Crime Victims Act.

Prior  to  October  24,  2018,  section  1106(h)  also  defined  the  term  “victim”  as 
 
“defined in section 479.1 of the act of April 9, 1929 (P.L. 177, No. 175), known as The 
Administrative Code of 1929.” 



en banc

Commonwealth v. Holmes
  The use of section 479.1 in the prior version of section 1106(h)  was discussed 
, 155 A.3d 69 (Pa. Super. 
by the Superior Court in 
2017) (
).  The Superior Court examined whether the parents of a child 
who was killed in a DUI fatality may be considered victims under 1106(a) for 
purposes  of  ordering  restitution  to  recover  the  costs  of  the  child’s  funeral 
expenses. Initially, to answer that question, the Court had to determine what 
definition of the term “victim” was applicable in light of the legislative repeal of 
section 479.1. After examining the subsequent history to section 479.1 and its 
repealer provisions, the opinion in support of affirmance (OISA) determined 
Id.
that the CVA was a codification of the repealed statute and that unless clearly 
 
different from current law, the CVA was a continuation of the prior law. 
at  80-81.    Under  these  legislative  directives,  the  OISA  concluded  that  the 
definition of “victim” under the repealed section 479.1 and the current CVA 
revealed that they were consistent with each other and therefore, the current 
definition of “victim” under the CVA is, as intended, a part of the definition of 
“victim” under section 1106(h).  

The opinion in support of reversal (OISR) disagreed, reasoning, that in light 
of  the  legislature’s  various  amendments  to  the  Crimes  Code  subsequent  to 
1998  when  section  479.1  was  repealed,  and  the  continued  inaction  by  the 
legislature  to  replace  section  479.1  with  the  CVA,  that  a  court  could  only 
order  restitution  to  a  “direct    victim”  under  section  1106(a).    According  to 
the OISR, this did not include the parents of a child victim.  It was the position 
of the OISA that prior cases failed to consider section 5103 of the CVA that 
deemed the CVA to be a continuation of the repealed provisions of the Crimes 
Code, and that in fact, the Supreme Court reserved resolution of the interplay 
between section 1106 and the CVA for purposes of defining “victims” under 
, 80 A.3d 1204 (Pa. 
those statutes.  
2013).  The OISA was the Superior Court’s attempt to resolve that interplay. 
 
The 2018 amendment to incorporate the definition of “victim” as contained 
under the CVA into section 1106(h) may be considered a legislative ratification 
of the OISA position in 

Commonwealth v. Hall

. at 85-86, citing

Holmes

Id

. 

 

 

Current Version of 18 Pa.C.S.A. §1106

“Victim” is now defined in section 1106(h) as:

As defined in section 103 of the act of November 24, 1998 (P.L. 882, 

5      Chapter 2      

Mandatory Restitution at Sentencing

Crime  Victims  Act

.  The  term  includes  an 
No.111),  known  as  the 
affected government agency, the Crime Victim’s Compensation Fund, 
if  compensation  has  been  paid  by  the  Crime  Victim’s  Compensation 
Fund to the victim, any insurance company that has compensated the 
victim for loss under an insurance contract and any business entity.

18 Pa.C.S.A. §1106(h). (Emphasis added). 

et. seq

The  Crime  Victim’s  Act  (“CVA”),  18  P.S.  §  11.101, 

 
.,  provides  definitions  for 
both a “direct victim” and a “victim”.  Section 11.103 of the CVA defines a “Direct” victim 
as 

“Direct victim.” An individual against whom a crime has been committed 
or attempted and who as a direct result of the criminal act or attempt 
suffers physical or mental injury, death or the loss of earnings under 
this  act.  The  term  shall  not  include  the  alleged  offender.  The  term 
includes  a  resident  of  this  Commonwealth  against  whom  an  act  has 
been  committed  or  attempted  which  otherwise  would  constitute  a 
crime as defined in this act but for its occurrence in a location other 
than this Commonwealth and for which the individual would otherwise 
be  compensated  by  the  crime  victim  compensation  program  of  the 
location  where  the  act  occurred  but  for  the  ineligibility  of  such 
program  under  the  provisions  of  the  Victims  of  Crime  Act  of  1984 
(Public Law 98-473, 42 U.S.C. § 10601 

et seq.

).

 

The designation of a “Victim” includes the following terms:

“Victim.”

 The term means the following:

(1) A direct victim.

(2) A parent or legal guardian of a child who is a direct victim, except 
when the parent or legal guardian of the child is the alleged offender.

(3)  A  minor  child  who  is  a  material  witness  to  any  of  the  following 
crimes and offenses under 18 Pa.C.S. (relating to crimes and offenses) 
committed or attempted against a member of the child’s family:
Chapter 25 (relating to criminal homicide).
Section 2702 (relating to aggravated assault).
Section 3121 (relating to rape).

(4) A family member of a homicide victim, including stepbrothers or 
stepsisters, stepchildren, stepparents or a fiance, one of whom is to be 
identified to receive communication as provided for in this act, except 

6      Chapter 2      

Mandatory Restitution at Sentencing

where the family member is the alleged offender.

1
  While  Section  9721

18  P.S.  §  11.103. 
  and  Section  1106  complement  each 
other   addressing   restitution   to   victims   of   crime,   two   distinctions   between   these 
statutes  are  notable.

 
First, while Section 9721 speaks in terms of a defendant compensating a “victim” for 
loss or injury resulting from a defendant’s criminal conduct, Section 1106 speaks in terms 
of  compensating  a  “victim”  who  suffers  loss  to  property  or  personal  injury  “directly” 
resulting from an offender’s crime.  To date, no appellate case has addressed whether 
the reference to victim under 9721 and the reference to a victim who directly suffers 
harm  under  Section  1106  are  in  conflict  where  both  statutes  provide  that  restitution
  is  mandatory.  Under  rules  of  statutory  construction,  these  two  provisions  should  be
  construed together in 
 as one statute, as they relate to the same thing, and
See
 in a manner where the more specific provision controls the general if the two provisions
 are irreconcilable.  
 1 Pa.C.S.A. §§ 1932, 1933. When viewed in this light, section 9721
 is the general rule and Section 1106 the more specific.  Therefore, it may be considered
 that under both statutes courts are obligated to order restitution to a victim who suffers
 property loss or personal harm as a direct result from an offender’s criminal action.

pari materia

Second, as currently written, Sections 9721 and 1106 do not share the same definition
 of a “victim”. 





  Section  9721  incorporates  the  definition  of  a  “victim”  by  reference  to 
Section  479.1  of  the  act  of  April  9,  1929  (P.L.  177,  No.  175),  known  as  The 
Administrative Code of 1929.  In contrast, section 1106(h) incorporates by 
reference the definition of a “victim” as contained in the Crime Victims Act.  
As explained above, this was not always the case.   It would seem however, 
that since Section 9721 presents the same repealer and amendment problem 
as that considered in 
, that the same result should be reached, that 
being, that the definition of “victim” under Section 9721 is as defined under
the CVA.   This should be especially so where the legislature acted to amend
the definition of “victim” to be as defined under the CVA.

Holmes

  At  sentencing,  when  a trial  court  must  consider ordering restitution  under 
Section 1106(a), it first must be careful to identify who qualifies as a “victim”, 
since  restitution  under  Section  1106(a)  only  may  be  paid  to  those  victims 
identified  as  such  under  that  statute.    The  incorporation  of  the  CVA  into 
the definition of “victim” under Section 1106(h) expands who qualifies as a 
Section 1106(a) victim who suffers a loss as a direct result of a defendant’s 
criminal conduct.  

1    42 Pa.C.S.A. § 9721. 
 

The interplay between the definitions of “victim” and “direct victim” is illustrated 

7      Chapter 2      

Mandatory Restitution at Sentencing

Commonwealth  v.  Holmes

en  banc

,  155  A.3d  69  (Pa.  Super.  2017),  (

)  (opinion  in 
in 
support of affirmance), wherein the question presented was whether the parents of a 
child killed in a car accident as a result of the car owner being convicted of REAP for 
allowing the child to drive the owner’s car while drunk, could be awarded restitution for 
funeral expenses as a victim under Section 1106(a).   Following the definition of “victim” 
as defined under the CVA, the OISA found that the parents were entitled to be awarded 
restitution.  Incorporating the CVA’s definition of “victim” into Section 1106(a) qualified
 the  parents  as  Section  1106(a)  victims,  since  the  CVA’s  definition  of  “victim”  includes
  the parents of a child who was a direct victim of a crime.   Without this connection, 
 could  not  qualify  for  restitution  under  Section  1106(a).   The 
the  parents  in  
opinion in  support  of  reversal  (OISR)  reached  a  contrary  result  reasoning  that  only 
2
the  CVA’s  reference to a “direct victim” was applicable to Section 1106(h)
B. No Retroactive Effect to Amendments

Holmes

not

The Supreme Court and Superior Court have held that amendments to 18 Pa.C.S.A.
§ 1106 which broaden the definition of “victim” should 
 be effective in criminal cases
that   began   before   the   effective   date   of   the   legislation,   holding   that,   for   example,
Commonwealth  v.  Tanner,
“[b] ecause the events that led to [a]ppellant’s conviction occurred before October 24,
2018,  [the  since-repealed]  version  of  the  statute  applies.”  
205 A.3d 388, 396 n.7 (Pa. Super. 2019).



Tanner

In 
,  the  appellant  challenged  the  portion  of  his  direct  sentence
requiring him to pay substantial restitution to Shenango Township, Lawrence
County, Pennsylvania, under § 1106. Id. at 395-396. “Ultimately, [the Superior
Court]  concluded  this  restitution  was  illegal  because  Shenango  Township
was not considered a ‘victim’ under the relevant statutory provisions, relying
, 637
directly upon our Supreme Court’s guidance in 
Pa. 442, 150 A.3d 435 (2016).”  
, 220 A.3d 582, 586-
87 (Pa. Super. 2019).

Commonwealth v. Hunt

Commonwealth v. Veon

II. MANDATORY RESTITUTION ORDER AT SENTENCING

A. Statutory Creation

Restitution  is  a  statutory  creation  and  must  be  imposed  by  a  court  as  a  direct
sentence, pursuant to 18 Pa.C.S.A. § 1106, or as a condition of probation, pursuant to 42 
3
   In juvenile court proceedings, restitution may be ordered as deemed 
Pa.C.S.A. § 9763.
4
2    A review of Section 1106(a) indicates that the statute speaks in terms of ordering restitution to a “victim” who suffers a loss as a “direct”
 Section 1106 “mandates that courts 
appropriate by the court, 42 Pa.C.S.A. § 6352(a)(5).
 result of an offender’s criminal conduct.  This is different from an interpretation that reads Section 1106(a) as ordering restitution to a
 “direct victim”.  

3    Restitution as a Condition of Probation is discussed in Chapter 3, infra. 
4    See Chapter 4 infra.

8      Chapter 2      

Mandatory Restitution at Sentencing

See

Commonwealth v. Whatley

 18 Pa.C.S.A. § 1106(a).” 

shall  sentence  offenders  to  make  restitution  in  certain  cases  of  injury  to  persons  or 
property. 
, 221 A.3d 651, 653 
See
(Pa. Super. 2019).  Such restitution is limited to victims who suffer a direct loss from a 
Commonwealth v. Harner
 
crime and requires a direct nexus between the loss and the amount of restitution. 
, 617 A.2d 702, 706 (Pa. 1992).

Restitution is a statutory creation and may be imposed by a court as 
a  direct  sentence, pursuant  to 18  Pa.C.S.A.  §  1106, or  as  a  condition 
of probation, pursuant to 42 Pa.C.S.A. § 9754. When incorporated as 
part of a defendant’s direct sentence, restitution is penal in nature and 
may be imposed without regard to the defendant’s ability to pay. See 
18 Pa.C.S.A. § 1106(c)(1)(i)(court shall consider restitution regardless 
of  the  current  financial  situation  of  the  defendant).  However,  when 
imposed  as  a  condition  of  probation  .  .  .  its  function  is  primarily 
rehabilitative and is intended to assist the defendant in leading a law-
abiding  life.  42  Pa.C.S.A.  §  9754(b).  In  this  context,  restitution  is  to 
be imposed only “in an amount [the defendant] can afford to pay.” 42 
Pa.C.S.A. § 9754(c)(8).

5
 994 A.2d 606, 607 (Pa. Super. 2010).
 

Commonwealth v. Karth,

  When  imposed  as  a  direct  sentence,  the  injury  to  property  or  person  for  which 
restitution is ordered must directly result from the crime. 

As  a  direct  sentence,  restitution  is  authorized  by  18  Pa.C.S.A.  § 
1106,  which  mandates  that  courts  shall  sentence  offenders  to  make 
restitution  in  certain  cases  of  injury  to  persons  or  property.  See  18 
Pa.C.S.A. § 1106(a). Such restitution is limited to direct victims of the 
crime and requires a direct nexus between the loss and the amount of 
restitution. 
, 533 Pa. 14, 617 A.2d 702, 
706 (1992).
Commonwealth v. Whatley

Commonwealth v. Harner

See

 

, 221 A.3d 651, 653 (Pa. Super. 2019).  The sentencing court 
must  apply  a  “but  for”  test  imposing  restitution.  “[D]amages  which  occur  as  a  direct 
result of the crime[s] are those which [would] not have occurred but for the defendant’s 
criminal conduct.” 

, 616 A.2d 686, 697 (Pa. Super. 1992).

Commonwealth v. Gerulis

 

Restitution is made mandatory under 42 Pa.C.S.A. § 9721:

(c) Mandatory restitution.--

In addition to the alternatives set forth 
in  subsection  (a)  of  this  section  the  court  shall  order  the  defendant 
to  compensate  the  victim  of  his  criminal  conduct  for  the  damage  or 
injury  that  he  sustained.  For  purposes  of  this  subsection,  the  term 
“victim” shall be as defined in section 479.1 of the act of April 9, 1929 

5    In 2019, restitution in probationary sentences was moved from 42 Pa.C.S.A. § 9754 to § 9763. 

9      Chapter 2      

Mandatory Restitution at Sentencing

(P.L. 177, No. 175), known as The Administrative Code of 1929.

42 Pa.C.S.A. § 9721. 

6

et seq.

The Crime Victims Act, 18 Pa.C.S.A. §§ 11.101 

, defines “victim” as follows:

(1) A direct victim.
(2) A parent or legal guardian of a child who is a direct victim, except
when the parent or legal guardian of the child is the alleged offender.
(3) A  minor  child  who  is  a  material  witness  to  any  of  the  following
crimes and offenses under 18 Pa.C.S. (relating to crimes and offenses)
committed or attempted against a member of the child’s family:

Chapter 25 (relating to criminal homicide).
Section 2702 (relating to aggravated assault).
Section 3121 (relating to rape).

(4) A family member of a homicide victim, including stepbrothers or
stepsisters, stepchildren, stepparents or a fiance, one of whom is to be
identified to receive communication as provided for in this act, except
where the family member is the alleged offender.

Commonwealth v. Atanasio

7

 
is part of a Sentence

 
award of damages, but, rather, a sentence.” 
JUDICIAL POLICY; Restitution 
1182–83 (Pa. Super. 2010)(quoting 

In  the  context  of  criminal  proceedings,  an  order  of  “restitution  is  not  simply  an 
Commonwealth v. C.L.
, 997 A.2d 1181, 
, 962 A.2d 489, 494 (Pa. Super. 
2008)).  However, restitution is a creature of statute 
and, without express legislative direction, a court is 
powerless to direct a defendant to make restitution 

Commonwealth v. Harner

 

as part of a sentence. 

, 617 A.2d 702, 704 (Pa. 1992). 

18 Pa.C.S.A. § 11.103.

18  Pa.C.S.A.  §  1106  mandates  the  imposition  of  restitution  as  part  of  a  criminal 
 
8
sentence.
  Restitution, when it is imposed as a direct sentence, can be entered only as to 
losses for which the defendant has been held criminally accountable. The very words of 
the statute provide that it is applicable only: “Upon conviction for any crime wherein:

(1) property  of  a  victim  has  been  stolen,  converted  or  otherwise
unlawfully  obtained,  or  its  value  substantially  decreased  as  a  direct
6    For purposes of Section 9721, the term “victim” is referenced to the Administrative Code of 1929, which was subsequently repealed 
result of the crime; or
and recodified in the Crimes Victims Act, 18 Pa.C.S.A. §§ 11.101 et seq. See Commonwealth v. Veon, 150 A.3d 435, 449 (Pa. 2016). The 
definition of “victim” is now found at 18 Pa.C.S.A. § 11.103. 

7     The General Assembly also has granted authority to the Department of Corrections to develop guidelines and a procedure to collect 
monies  for  restitution  as  well  as  fines  and  costs  from  inmates  who  are  in  the  state  system  of  corrections.   See  42  Pa.C.S.A.  § 
9728(b)(5); Boyd v. Department of Corrections, 831 A.2d 779 (Pa. Cmwlth. 2003).

8    In addition to other mandatory requirements for restitution, 18 Pa.C.S.A. § 1107.1 specifies additional terms for restitution for identity 

theft. 

10      Chapter 2      

Mandatory Restitution at Sentencing

(2) the  victim,  if  an  individual,  suffered  personal  injury  directly
resulting from the crime . . . .”

Commonwealth v. Harner,
18  Pa.C.S.A.  §  1106.    Interference  with  custody  of  children  is  not  such  a  crime. 
 617 A.2d 702, 705 (Pa. 1992).  

 
of his sentence, the victim or society, in money or services.” 

Commonwealth v. Brown
“[R]estitution  is  the  requirement  that  the  criminal  offender  repay,  as  a  condition 
JUDICIAL POLICY; Restitution 
, 
 
as rehabilitative and deterrance
981  A.2d  893,  895  (Pa.  2009)  (footnote  omitted).
It  acts  to  rehabilitate  the  offender  “by  impressing 
upon him or her that his criminal conduct caused 
the  victim’s  loss  or  personal  injury  and  that  it  is  his  responsibility  to  repair  the  loss 
or injury as far as possible.” 
 (citation omitted). “[I]t is highly favored in the law and 
encouraged so that the criminal will understand the egregiousness of his or her conduct, 
Id.
be deterred from repeating the conduct, and be encouraged to live in a responsible way.” 

 

Id.

 (citation omitted).

B. Sentencing Court’s Responsibility

Since restitution is part of a criminal sentence, it must be supported by the record

and the trial court must determine:

the loss or damages resulting from the defendant’s conduct;
(1)
the amount of compensation; and
(2)
(3) how such amount should be paid.

Commonwealth

Commonwealth v. Walker,
v. Balisteri

9
, 478 A.2d 5, 9 (Pa. Super. 1984).

 666 A.2d 301, 311 (Pa. Super. 1995) citing to 

Restitution  applies  only  for  those  crimes  to  property  or  person  where  there  has
been a loss that flows from the conduct which forms the basis of the crime for which 
a defendant is held criminally accountable. 
, 772 A.2d 157, 
159 (Pa. Super. 1998).  The statute requires that a victim’s loss be caused directly by 
Commonwealth v. Langston
a  defendant’s  criminal  conduct  rather  than  a  loss  consequential  to  such  conduct. 

Commonwealth v. Wright

, 904 A.2d 917, 923 (Pa. Super. 2006). 

 

JUDICIAL POLICY: Trial Court
 
Must Initially Determine 
Restitution Amount

Act  121  of  1998  imposes  upon  the  court  the  requirement  that  if  restitution  is 
ordered,  the  amount  must  be  determined  at  the 
time  of  sentencing,  18  Pa.C.S.A.  §  1106(c)(2).  It  also 
places  upon  the  Commonwealth  the  requirement 
9   At  the  time  Walker  and  Balisteri  were  decided,  a  factor  that  the  trial  court  had  to  consider  was  an  amount  of  compensation  that 
that it provide the court with its recommendation of 
the defendant could afford to pay.  That is no longer a factor when restitution is mandatory at the time of sentencing because of the 
amendments to Section 1106(c) which establish that a defendant’s ability to pay is irrelevant except when the court imposes a payment 
plan or if the defendant defaults on the restitution order.  18 Pa.C.S.A.§ 1106(c)(1)(i). 

11      Chapter 2      

Mandatory Restitution at Sentencing

Id.

a  restitution  amount  at  or  prior  to  the  time  of  sentencing.  18  Pa.C.S.A.  §  1106(c)(4). 
Although  the  statute  provides  for  amendment  or  modification  of  restitution  “at  any 
time,” 18 Pa.C.S.A. § 1106(c)(3), the modification refers to an order “made pursuant to 
  Therefore,  the  statute  mandates  an  initial  determination  of  the 
paragraph  (2)  ....”   
amount of restitution at sentencing. This provides the defendant with certainty as to his 
cf
sentence, and at the same time allows for subsequent modification, if necessary. 
 18 
Pa.C.S.A. § 1106(c)(3); 

. 42 Pa.C.S.A. § 5505.

See

 
As a result, Section 1106 requires the sentencing court to determine the specifics 
of restitution at the initial sentencing hearing.  If the sentencing court does not address 
the  specific  amount  of  restitution  and  a  payment  method,  or  if  the  sentencing  court 
refers these items to another agency of the court (such as the probation department), 
the sentencing order will be vacated:

Consistent with the plain language of § 1106(c)(2), our Courts have 
held that the trial court may not impose a general order of restitution at 
Commonwealth  v.  Mariani
sentencing and then “work out the details” and amounts at a later date. 
,  869  A.2d  484,  486  (Pa.  Super.  2005).] 
[
Id.
“[A]n order of restitution to be determined later is ipso facto illegal.” 
 Similarly, “the sentencing court bears the duty of determining the 
specifics of restitution. The court is not free to delegate these duties 
to  an  agency.” 
,  850  A.2d  712,  716  (Pa.
Super.2004) (brackets and citations omitted).

Commonwealth  v.  Deshong

The record reflects that at the sentencing hearing, the court ordered 
Appellant  “to  pay  costs,  [and]  make  restitution,  which  is  capped 
at  $1,481,562.54.”  N.T.,  1/4/2006,  at  32.  While  the  court  did  set  a 
maximum  cap,  the  court  did  not  specify  any  particular  amount  of 
restitution, particularly as to future medical expenses. Moreover, the 
court did not specify any method of payment.

Id

We  recognize  that  the  court  held  a  post-sentence  motion  hearing  at 
which the court attempted to clarify both the amount and the method 
of payment. N.T., 5/19/2006, at 4–5. Specifically, the court indicated its 
belief that Appellant would pay the amounts that the DPW incurs on an 
ongoing, “pay-as-you-go” basis. 
. at 5–6; see also Trial Court Opinion, 
8/14/2006, at 4 n. 2 (“It is important to note that the Commonwealth 
is  not  seeking  these  costs  from  Defendant  unless  they  are  actually 
incurred by [the victim]. The purpose of including them in restitution 
is only so that if such costs are accrued, Defendant will be responsible 
for  their  payment.”)  Unfortunately,  the  court  never  modified  the 
sentencing order to make these facts clear. Rather, the certified record 
continues  to  reflect  only  a  generalized  order  of  restitution  with  no 
amount or method of payment. We are constrained to hold that such 
an order is illegal and must be corrected.

12      Chapter 2      

Mandatory Restitution at Sentencing

Commonwealth  v.  Smith

en  banc

(footnotes omitted).

,  956  A.2d  1029,  1033-1034  (Pa.  Super.  2008)(

)

JUDICIAL POLICY: “Full Restitution”
Must be Determined at an 
Adversarial Hearing

Pursuant to 18 Pa.C.S.A. § 1106, it is mandatory to award full restitution.  However, it 
still is necessary for the trial court to ensure that the record contains the factual basis for 
the appropriate amount of restitution, utilizing 
Commonwealth  v.  Atanasio
the adversarial system with considerations of 
, 
due  process.   
997 A.2d 1181, 1183 (Pa. Super. 2010).  At the 
Commonwealth  v. 
hearing,  the  parties  are  the  defendant  and  the  Commonwealth.    The  trial  court  must 
Walker
make  sure  that  any  award  made  is  not  speculative  or  excessive. 

, 666 A.2d 301, 311 (Pa. Super. 1995).

Commonwealth v. Ortiz
The  victim  may  seek  civil  damages  if  unsatisfied  with  the  restitution  award. 

en banc

, 854 A.2d 1280 (Pa. Super. 2004)(

). 

JUDICIAL POLICY: No Delegation to 
Probation Department

The trial court must determine the loss or damage the defendant has caused and how 
he  should  pay  it.  The  trial  court  may  not 
delegate  these  obligations  to  any  agency,
such  as  the  Office  of  Probation  and  Parole. 

Commonwealth v. Gentry

Commonwealtlh v. Deshong

, 101 A.3d 813, 818 (Pa. Super. 2014).

•

, 850 A.2d 712 (Pa. Super. 2004): The trial court
was  required  to  set  the  manner  and  amount  of  restitution  at  the  time  of
sentencing  without  delegating  that  decision  to  a  probation  office.    Because
the trial court improperly permitted the probation department to determine
the amount and recipients of restitution, the restitution order “amounted to
an illegal sentence . . . .”

 at 716.

 Id.

Whenever restitution has been ordered as a direct sentence pursuant to Section 1106, 
the court is required under the statute to order full restitution regardless of the current 
, 717 A.2d 1039, 1045 
financial resources of the offender. 
defendant’s ability to pay 
JUDICIAL POLICY:  Restitution
(Pa. Super. 1998).  18 Pa.C.S.A. § 1106(c) establishes that restitution in a criminal case 
Determined and Ordered Without 
Regard to Defendant’s Ability to Pay

is  irrelevant
is mandatory and the 

Commonwealth v. Shotwell

  except  when  the  court  imposes
Commonwealth  v. 
a  payment  plan  or  if  the  defendant  defaults 
on  the  restitution  order. 

Colon

, 708 A.2d 1279, 1284 (Pa.Super. 1998). As a result, the question of a defendant’s
 ability to pay a restitution order within a certain time period or at all is irrelevant at the
 time of sentencing because the trial court is not obligated to inquire into ability to pay
10
 
 
 802 A.2d 648, 652 (Pa. Super. 2002).
 when it enters the order. 
Section 1106(c)(1)(i)  provides that the court must order full restitution regardless of 
10  However, if the court makes the payment of restitution a condition of probation, it must be “in an affordable amount and on a schedule 

Commonwealth v. Leber,

that the defendant can afford to pay, for the loss or damage caused by the crime.” 42 Pa.C.S.A. § 9763(b)(10). 

13      Chapter 2      

Mandatory Restitution at Sentencing

the  current  financial  resources  of  the  defendant,  so  as  to  provide  the  victim  with  the 
fullest compensation for the loss. 

Commonwealth  v.  Oree

• 

• 

,  911  A.2d  169  (Pa.  Super.  2006):  Because  the 
defendant  was  found  guilty  of  simple  assault  and  recklessly  endangering 
another person, the restitution order was appropriate although it exceeded 
one million dollars. The defendant suffered organic brain syndrome and must 
reside at a nursing home because of the beating by the defendant. 
Commonwealth v. Shotwell

, 717 A.2d 1039, 1045 (Pa. Super.  1998):“Whenever
restitution has been ordered pursuant to Section 1106, the court is required 
 
under  statute  to  order  full  restitution  regardless  of  the  current  financial 
resources of the offender.”

Restitution may be awarded to entities other than the victim:

•  Pursuant to the mandatory nature of restitution at the time of sentencing, the 
trial court must also order restitution to be paid to an insurance company, 
under  18  Pa.C.S.A.  §  1106(c)(1)(i),  for  loss  suffered  by  the  victim,  even  if 
the  victim  has  already  been  compensated  by  the  insurance  company.  The 
insurance  company  is  a  “victim”  as  defined  by  the  statute.  18  Pa.C.S.A.  § 
1106(h).   
,  50  A.3d  769,  773  (Pa.  Super.  2012).
The mandatory nature of this provision does not violate public policy.  

Commonwealth  v.  Stradley

Id.

•  Furthermore, the trial court may order restitution to be paid by the defendant 
for loss previously compensated by the Crime Victim’s Compensation Board 
to the Crime Victim’s Compensation Fund or other designated account when 
the claim involves a government agency in addition to or in place of the board. 
18 Pa.C.S.A. § 1106(c)(1)(i). 

 
Orders  of  restitution  have  been  upheld  even  where  the  victim  has  received 
Commonwealth v. 
Commonwealth v. B.D.G
compensation  from  an  insurance  company  or  from  a  civil  court  settlement.  
Guerra

., 959 A.2d 362 (Pa. Super. 2008)(en banc); 

, 955 A.2d 416 (Pa. Super. 2008).

Commonwealth v. B.D.G.

•  A  victim  is  entitled  to  the  full  amount  of  restitution  notwithstanding  any 
, 959 A.2d 362 (Pa. Super. 2008)
,  955  A.2d  416  (Pa.  Super.  2008); 

civil court release. 
Commonwealth v. Pleger,
(en  banc); 

Commonwealth  v.  Guerra

 934 A.2d 715 (Pa. Super. 2007).

Section 1106(c) provides:

The court shall not reduce a restitution award by any amount that the 
victim has received from the Crime Victim’s Compensation Board or 
other  government  agency  but  shall  order  the  defendant  to  pay  any 

14      Chapter 2      

Mandatory Restitution at Sentencing

restitution ordered for loss previously compensated by the board to 
the  Crime  Victim’s  Compensation  Fund  or  other  designated  account 
when  the  claim  involves  a  government  agency  in  addition  to  or  in 
place of the board. The court shall not reduce a restitution award by 
any amount that the victim has received from an insurance company 
but shall order the defendant to pay any restitution ordered for loss 
previously  compensated  by  an  insurance  company  to  the  insurance 
company.

18 Pa.C.S.A. § 1106(c)(1)(i).

JUDICIAL POLICY:  The amount and 
 
method of payment must be imposed 
at the time of sentencing.

The sentencing court must also address how the restitution must be paid.  Restitution 
must  be  imposed  at  the  time  of  sentencing, 
and  the  amount  and  method  of  payment 
must  be  specified  by  the  sentencing  court.  A 
sentence  which  includes  the  provision  that 
“restitution  is  to  be  determined”  at  some  later  time  or  hearing  renders  the  sentence 
illegal. 18 Pa.C.S.A. § 1106(c)(2).

11

JUDICIAL POLICY:  Priorities of 
 
Restitution

 The  Crimes  Code  specifies  the  priorities  of  Payees  for  restitution  purposes.  Section 
1106  (c)(1)(ii)  specifies  the  priorities  of 
payment  of  restitution  in  the  event  the  trial 
court  orders  payment  to  more  than  one 
different person or entity:

(c) Mandatory restitution.--

(1) The court shall order full restitution:

 
              . . .

(ii)  If  restitution  to  more  than  one  victim  is  set  at  the  same 
time, the court shall set priorities of payment. However, when 
establishing  priorities,  the  court  shall  order  payment  in  the 
following order:

(A) Any individual.
(A.1) Any affected government agency.
(B) The Crime Victim’s Compensation Board.
(C)  Any  other  government  agency  which  has  provided 
reimbursement  to  the  victim  as  a  result  of  the  defendant’s 
criminal conduct.
(D) Any insurance company which has provided reimbursement 
to the victim as a result of the defendant’s criminal conduct.
(E) Any estate or testamentary trust.

11  For further discussion on how restitution must be paid, see Section VI(A). 

15      Chapter 2      

Mandatory Restitution at Sentencing

(F)  Any  business  entity  organized  as  a  nonprofit  or  not-for-
profit entity.
(G) Any other business entity.

18 Pa.C.S.A. § 1106(c)(1)(ii). 

It is important to note that although the listing of priorities in Section 1106(c)(1)
 
(i) includes a government agency which has provided reimbursement to the victim and 
see
Priorities of Restitution 
an estate or testamentary trust, none of these are included in the definition of “victim” 
Payments, infra.
in Section 1106(h). For further discussion, 

 Section II (C), 

Kerr,

Commonwealth 

v. Kerr
 

The Superior Court first recognized the impact of subrogation in 

JUDICIAL POLICY:  Subrograted 
 
Restitution May Be Ordered

, 444 A.2d 758, 760-61 (Pa. Super. 1982). In 

 the Superior Court held that 
even  though  a  victim  was  insured  and  received 
compensation from his insurer, full restitution was 
proper.  The Court held that the rehabilitative goal 
of restitution was served “by impressing upon the offender the loss he has caused and his 
responsibility to repair that loss as far as it is possible to do so.” 
. at 760. Additionally, 
the court noted that the victim was entitled to restitution in the full amount of his loss, 
regardless  of  the  existence  of  insurance.    Finally,  the  court  ruled  that  the  insurance 
company’s right of subrogation did not affect the validity of the trial court’s restitution 
order. 

Id

See

Commonwealth v. Solomon

The trial court should ordinarily not order restitution payments directly to medical 
 
providers,  unless  the  medical  provider  is  a  direct  loss  “victim”  under  the  restitution 
statute. 

, 25 A.3d 380, 391 (Pa. Super. 2011). 

 

The  court  was  required  to  assess  the  loss  to  the  victim  and  order 
full  restitution  as  of  the  date  of  the  sentencing  hearing.  The  record 
establishes that as of that date, [the victim] owed the full amount of 
the medical bills to the hospital, and that none of the bills had been 
paid by any party. Accordingly, the restitution order properly provided 
for  full  payment  to  the  victim  who  at  the  time  of  sentencing  had  an 
outstanding  obligation  to  pay  the  full  amount  of  the  bills.  An  order 
requiring  [Appellant]  to  pay  “restitution”  to  the  hospital,  which  was 
very unlikely to ever be paid, would not extinguish [Appellant’s] legal 
obligation  to  pay  [the  victim’s]  hospital  bills.  Moreover,  there  is  no 
provision  in  the  restitution  statute  that  empowers  a  court  to  order 
that  restitution  be  paid  to  a  creditor  of  a  victim:  only  parties  who 
directly  sustained  a  loss,  or  who  paid  compensation  for  such  losses 
are entitled to be the beneficiaries of a restitution order. 

Id

. at 391 (quoting trial court).

16      Chapter 2      

Mandatory Restitution at Sentencing

C.  Priorities of Restitution Payments

 
Although Section 1106 of the Crimes Code provides for mandatory restitution, the 
sentencing court must set priorities of payment, in the event more than one victim is 
to  receive  restitution.  In  accordance  with  Section  1106(c)(1)(ii),  when  establishing 
priorities, the sentencing court must order payment in the following order:

•  Any individual victim.
•  Any  affected  government  agency,  defined  as  the  Commonwealth, 
a  political  subdivision  or  local  authority  that  has  sustained  injury  to 
property.

•  The Crime Victim’s Compensation Board.
•  Any other governmental agency which has provided reimbursement to 

the victim as a result of the defendant’s criminal conduct.

•  For  example,  the  extent  that  restitution  is  ordered  either  prior  to  or 
subsequent to the making of an award by the Office of Victims’ Services, 
the restitution shall be paid to the Commonwealth to the extent of the 
award by the Office of Victims’ Services. 18 P.S. § 11.1302

•  Any  insurance  company  which  has  provided  reimbursement  to  the 
victim  as  a  result  of  the  defendant’s  criminal  conduct  –  insurance 
company defined as an entity that compensates a victim for loss under 
an insurance contract;

•  Any estate or testamentary trust; 
•  Any business entity organized as a nonprofit or not-for-profit entity;
•  Any other business entity. 

18 Pa.C.S.A. § 1106(c)(1)(ii). A “business entity” is defined as a domestic or foreign:

(1) business corporation;
(2) nonprofit corporation;
(3) general partnership;
(4) limited partnership;
(5) limited liability company;
(6) unincorporated nonprofit association;
(7) professional association; or
(8) business trust, common law business trust or statutory trust.

18 Pa.C.S.A. § 1106(h).

 

Restitution to Parties Other Than “Direct” Victims

“For over a decade the courts of this Commonwealth have struggled with the issue 
 
of whether parties other than the ‘direct’ victim of the crime are entitled to restitution 
, 662 A.2d 617, 619 (Pa. 1995). 
under 18 Pa.C.S.A. § 1106.” 

Commonwealth v. Runion

17      Chapter 2      

Mandatory Restitution at Sentencing

Underlying  this  issue  is  the  apparent  policy  that  restitution  is  not  meant  to  be  a 
reimbursement system to third parties but rather a compensation system to “victims” 
as that term is defined by the statute. 
, 853 A.2d 381, 384 (Pa. 
Super. 2004).

Commonwealth v. Keenan

 
It is important to note that although the listing of priorities in Section 1106(c)(1)
(ii) includes a government agency which has provided reimbursement to the victim and 
an estate or testamentary trust, none of these is included in the definition of “victim” in 
Section 1106(h). 

Commonwealth v. Brown

In 

, 981 A.2d 893 (Pa. 2009), the Pennsylvania Supreme 
 
Court  was  faced  with  a  similar  problem  when  they  reviewed  the  decision  of  the  trial 
court  which  had  granted  restitution  to  Medicare.    At  the  time,  Section  1106  did  not 
mention Medicare or any specific governmental entities, so that it was unclear whether 
Medicare, as a governmental agency, could receive restitution. The Supreme Court noted 
that the Legislature, by adopting Section 1106, made clear that it intended a variety of 
possible persons to be eligible to receive restitution by including a priority scheme when 
.  at  898. 
restitution  to  more  than  one  person  was  ordered  at  the  same  sentencing. 
“Thus,  while  the  General  Assembly  seemingly  envisions  certain  government  agencies 
to be entitled to restitution, which government agencies are to receive restitution is not 
plain.” 

Id.

Id

 
1995 and 1996

The Supreme Court recognized that the Legislature had rewritten Section 1106 in 

12

  in order to expand the class of entities eligible for restitution.  

While  not  the  model  of  clarity,  the  legislature  certainly  evinced  an 
extension of those entities who could receive restitution through the 
priorities scheme. As noted above, this included not only the “victim,” 
but  also  the  Crime  Victim’s  Compensation  Board,  other  government 
agencies,  and 
insurance  companies.  Furthermore,  the  General 
Assembly explicitly enlarged the definition of “victim” to include the 
Crime  Victim’s  Compensation  Fund  and  insurance  companies.  Thus, 
while  the  General  Assembly  expanded  the  definition  of  “victim,”  .  .  . 
and  in  doing  so  widened  the  definition  of  that  term,  the  revamping 
of  Section  1106  was  even  more  sweeping  and  implicitly  broadened 
the  class  of  entities  eligible  for  restitution  to  include  government 
agencies, in addition to manifesting a heightened focus on the need for 
and importance of restitution.

Brown

,  981  A.2d  at  899–900.    The  Supreme  Court  then  looked  to  the  legislative 
history of Section 1106, the object to be obtained, and the consequences of particular 
interpretations. After a review of these standards, the Supreme Court concluded:

12  Of course, this would occur again in 2004 and 2018. 

[T]he legislature intended that a criminal offender not only be required 

18      Chapter 2      

Mandatory Restitution at Sentencing

to provide restitution to the victim directly, but to government agencies 
which  indirectly  provide  reimbursement  to  the  victim,  including 
payment to a medical provider on the victim’s behalf. As Medicare, a 
government agency, made payments to a medical provider on behalf of 
the victim as a direct result of Brown’s crime, we find that it is entitled 
to reimbursement under Section 1106.

Id.

 at 902.

D. Modification 

at  any  time

Although the trial court is required to specify the amount of restitution at sentencing, 
  if  the  court  explains  its  reasons  for 
, 970 A.2d 1131, 1135 (Pa. 2009);

 
it  may  modify  the  restitution  order 
Commonwealth v. Biauce
modification on the record. 
 

, 162 A.3d 1133, 1139 (Pa. Super. 2017). 

Commonwealth v. Dietrich

 

18  Pa.C.S.A. § 1106(c)(3) provides:

The court may, at any time or upon the recommendation of the district 
attorney . . . alter or amend any order of restitution made pursuant to 
paragraph (2), provided, however, that the court states its reasons and 
conclusions as a matter of record for any change or amendment to any 
previous order.

 

18 Pa.C.S.A. § 1106(c)(3).

Dietrich

JUDICIAL POLICY:  Altering or 
 
Amending an Order of Restitution

 
If the sentencing court sets an amount of restitution at sentencing, the court can 
later  modify  the  restitution  as  long  as  the  court  meets  the  requirements  of  Section 
,  970  A.2d  at  1135.  “The  broad  language  of  Section  1106(c)(3) 
1106(c)(3). 
indicates  the  court  has  jurisdiction  to  modify  a 
restitution  order  at  any  time  without  regard  to 
when information should have been available for 

Biauce

13

consideration.” 



, 162 A.2d at 1139.

  The “broad language” of Section 1106(c)(3) creates an exception to the typical 
inability of a trial court, beyond 30 days, to make changes or modifications to 
a “Final Order” pursuant to Pa.R.A.P. 341 and 42 Pa.C.S.A. § 5505 (Modification 
of orders). 

The sentencing court cannot, of course, modify the amount of restitution without 
 
Commonwealth v. Hobson
Commonwealth v. Blair,
providing  due  process  requirements  of  notice  and  an  opportunity  to  be  heard. 
, 
45  A.2d  22  (Pa.  Super.  1982).  Since  a  hearing  on  restitution  is  a  sentencing  hearing, 
13  See Section VII, MODIFICATION, infra. 
,  131 
counsel  must  be  appointed  for  a  qualified  defendant. 

 230 A.3d 1274 (Pa. Super. 2020); 

Commonwealth  v.  Zrncic

19      Chapter 2      

Mandatory Restitution at Sentencing

A.3d 1008 (Pa. Super. 2016).

independent cause of action

In terms of modification, Pennsylvania case law has held that 18 Pa.C.S.A. § 1106(c)
Commonwealth 
 for a defendant to seek a modification of an 

 
(3) creates an 
v.   Gentry
existing  restitution  order  at  any  time  directly  from  the  trial  court. 

also  

See

,   101   A.3d   813,   816   (Pa.   Super.   2014).  

 

18   Pa.C.S.A.   §   1106(g) 

forpreservation of private remedies.

Commonwealth 
This power to alter or amend does not exist after a notice of appeal has been filed; 
See

 
v. Weathers
however, the trial court’s power is restored when it regains jurisdiction.  

, 95 A.3d 908 (Pa. Super. 2014). 

JUDICIAL POLICY:  Trial Court 
 
Cannot Alter or Amend an Order of 
Restitution After Appeal is Filed

 Pa.R.A.P. 1701(a) (“Except as otherwise 
prescribed by these rules, after an appeal is taken or review of a quasi-judicial order is 
sought, the trial court or other government unit 
Commonwealth v. Ledoux
may  no longer proceed further  in  the  matter.”); 
, 768 A.2d 1124, 1125 
(Pa.  Super.  2001)  (“Jurisdiction  is  vested  in  the 

Superior Court upon the filing of a timely notice of appeal.”).

Since a hearing on restitution is a sentencing hearing, counsel must be appointed 

 
for a qualified defendant.  

Commonwealth v. McKee

, 131 A.3d 1008 (Pa. Super. 2016). 

Commonwealth v. Zrncic

In 

JUDICIAL POLICY:  If Restitution 
 
Order reversed on appeal, the trial 
court must order the return of any 
restitution erroneously paid.

 
, 38 A.3d 879 (Pa. Super. 2012), the trial court imposed a 
sentence of imprisonment followed by a period of probation, ordered immediate parole, 
and  imposed  a  $500.00  order  of  restitution.  The  defendant  filed  an  appeal  from  the 
judgment of sentence based on insufficient evidence, and the defendant’s judgment of 
sentence was reversed. When the defendant sought return of the restitution previously 
paid, by filing a Petition for Return of Restitution and Court Costs, the trial court declined 
on  the  basis  it  lacked  jurisdiction.  On  appeal, 
based upon the broad language of Section 1106, 
the  Superior  Court  first  ruled  that  “courts  have 
jurisdiction  to  modify  restitution  orders  at 
any  time  without  regard  to  when  information 
should have been present for consideration.” 
. at 882.  Therefore, the Petition was not 
untimely, was not waived, and the trial court had jurisdiction to address it. Second, the 
Superior Court held that upon a reversal of a defendant’s judgement of sentence based 
on insufficient evidence, the trial court is authorized, in appropriate cases, to return any 
restitution erroneously paid.
E.  Limitations on When Restitution Can Be Imposed

Id

There  are  several  parameters  which  guide  a  restitution  order  at  the  time  of 

(1)  Restitution  can  only  be  imposed  for  crimes  of  which  the  defendant  was 

 
sentencing:

convicted.  

20      Chapter 2      

Mandatory Restitution at Sentencing

Commonwealth  v.  Muhammed

• 

,  219  A.3d  1207,  1214  (Pa.  Super.  2019)
(“However,  because  neither  Appellant  nor  his  co-defendant  were  held 
criminally  accountable  for  the  theft  of  items  from  the  victim’s  home,  the 
trial court imposed an illegal sentence when it ordered restitution for those 
losses.”).

(2)  The evidence must show a “direct nexus between the crime” and the loss of 

value to the victim’s property.   
Commonwealth  v.  Barger,

• 

  956  A.2d  458,  465  (Pa.  Super.  2008)  (“Even 
assuming that there was a loss of property within the meaning of Section 
1106, there was no direct nexus between the crime for which Appellant was 
convicted and the loss of the couch, as Section 1106 requires.”).

property

(3)  Restitution  for 

  is  limited  to  the  classes  specified  in  18  Pa.C.S.A.  § 

1106(a).

•  Property  which  has  been  either:  (1)  stolen,  (2)  converted,  (3)  unlawfully 

obtained, or (4) had its value substantially decreased. 

personal injury

(4)  Restitution for 

 is limited to the definition as specified in the 
Crimes Code, 18 Pa.C.S.A. § 1106(h): “Actual bodily harm, including pregnancy, 
directly resulting from the crime.” 

•  Due to the “directly resulting from the crime” language, the Superior Court 
Commonwealth 
has  held  that  restitution  is  proper  for  personal  injury  “only  if  there  is  a 
v. Harriott
direct causal connection between the crime and the loss.” 

Commonwealth v. Oree

, 919 A.2d 234, 238 (Pa. Super. 2007) A “but for” test must be 
used in calculating these damages which occurred as a direct result of the 
crime.  

, 911 A.2d 169, 174 (Pa. Super. 2006). 

(5)  Restitution is limited to the version of the restitution statute applicable at the 

time of the events which establish the crime. 

Commonwealth v. Hunt

• 

, 220 A.3d 582, 587-589 (Pa. Super. 2019): 
Amendments to the Crimes Code definitions governing restitution 
for injuries to person or property, which expanded the definition 
of “victim,” do not apply retroactively.
F.  Restitution Ordered as Direct Sentence vs as a Condition of Probation  

As  a  direct  sentence,  restitution  is  authorized  by  18  Pa.C.S.A.  §  1106,  which 
 
mandates  that  courts  shall  sentence  offenders  to  make  restitution  in  certain  cases  of 
 18 Pa.C.S.A. § 1106(a). Such restitution is limited to 
injury to persons or property. 
direct victims of the crime and requires a direct nexus between the loss and the amount 
21      Chapter 2      

See

Mandatory Restitution at Sentencing

See

Commonwealth v. Harner

of restitution.  

 

, 617 A.2d 702, 706 (Pa. 1992).

However, when restitution is imposed as a condition of probation pursuant to 42 
 
Pa.C.S.A. § 9754, its purpose is to rehabilitate the defendant and provide some redress 
See
to the victim. Under section 9754, the sentencing court is given the flexibility to fashion 
See
,  617  A.2d  at  706.  Therefore, 
the  condition  to  rehabilitate  the  defendant. 
Commonwealth  v.  Hall
 
the requirement of a nexus between the loss and amount of restitution is relaxed. 
,  80  A.3d  1204,  1215  (Pa.  2013).  Notably,  restitution  imposed 
under  section  9754  also  is  unique  in  that  it  requires  a  court  to  explicitly  consider  a 
defendant’s ability to pay.

Commonwealth v. Whatley

Harner

 

 
In 
stated:

, 221 A.3d 651 (Pa. Super. 2019), the Superior Court 

Harner,

Commonwealth  v.  Kinnan

Pennsylvania  courts  have  consistently  held  that  a  determination  of 
a  defendant’s  ability  to  pay  is  an  integral  requirement  of  imposing 
restitution  as  a  condition  of  probation.  In 
  our  Supreme 
Court  held  that  a  trial  court  must  determine  what  damage  a  victim 
suffered, what amount of restitution appellant can afford to pay, and 
how  the  appellant  should  pay  restitution. 
.  at  707.  Similarly 
,  71  A.3d  983  (Pa.  Super.  2013),  this 
in 
Court  stated:  “[w]here  a  sentencing  court  imposes  restitution  as  a 
probationary condition, sub-section 9754(c)(8) obligates the court to 
determine  what  loss  or  damage  has  been  caused  and  what  amount 
.  at  987  (citations 
of  restitution  the  defendant  can  afford  to  pay.” 
omitted).

See

Id

id

 

Accordingly, where a sentencing court fails to consider a defendant’s 
ability to pay prior to imposing restitution as a probationary condition, 
the order of restitution constitutes an illegal sentence. 
, 71 
A.3d at 988.

Kinnan

See

 

Whatley

, 221 A.3d at 653-54. 
III.  CLASSIFICATION OF “VICTIM”

A.  Historical Review of a “Victim”

See

 
Prior to 1995, restitution was discretionary: “the offender may be sentenced to make 
restitution.” Act No. 1998-121 changed the wording from “may” to “shall” and rendered 
restitution  mandatory.   
      However,  only  the  “victim”  was 
permitted restitution and the victim was defined as a “person.” 
14  1998 Pa. Legis. Serv. Act 1998-121 (H.B. 413) (PURDON’S). 

  18  Pa.C.S.A.  §  1106(a).

14

22      Chapter 2      

Mandatory Restitution at Sentencing

Commonweatlh v. Runion

  Writing for the Pennsylvania Supreme Court, then Justice Ronald Castille spoke to 
Runion
the breadth of the pre-amendment restitution statute in 
, 662 
A.2d 617 (Pa. 1995). In 
, a victim, who was a welfare recipient, was assaulted 
and  hospitalized  for  her  injuries.  The  Department  of  Public  Welfare  paid  the  victim’s 
medical costs and filed for restitution.  The Supreme Court opined that the prior version 
of Section 1106 failed to indicate whether government agencies were considered to be 
within the definition of “victim,” which was defined, at the time, as any “person” who 
suffered injuries as a direct result of the crime. 18 Pa.C.S.A. § 1106(h).  Therefore, the 
Court  turned  to  the  Statutory  Construction  Act’s  definition  of  “person.”  1  Pa.C.S.A.  § 
1991. The Court reasoned that, based upon the statutory definition of that term, which 
excluded from the definition of “person” governmental agencies of the Commonwealth, 
government agencies did not fall within the definition of “victim,” and, therefore, were 
, 662 A.2d at 621.
not eligible for restitution. 

Runion

The legislature has rewritten Section 1106 to significantly strengthen and amplify 
 
the  notion  of  restitution,  and  to  expand  the  class  of  entities  eligible  for  restitution. 
Specifically, after the amendments, restitution became mandatory. 18 Pa.C.S.A. § 1106(a) 
(“the  offender  shall  be  sentenced  to  make  restitution  in  addition  to  the  punishment 
Commonwealth  v.  Brown
  § 
prescribed  therefor”).  Moreover,  restitution  to  the  greatest  extent  is  required. 
1106(c)(1)  (“[t]he  court  shall  order  full  restitution”); 
,  981 
A.2d 893, 899 (Pa. 2009).

Id.

Brown

In 

 
purposes of restitution:

, Justice Debra Todd explained the now expansive definition of “victim” for 

Furthermore,  the  General  Assembly  broadened  the  class  of  those 
entities eligible to receive restitution. While not the model of clarity, 
the legislature evinced an extension of those entities who could receive 
restitution through the priorities scheme. As noted above, this included 
not only the “victim,” but also the Crime Victim’s Compensation Board, 
other government agencies, and insurance companies. Furthermore, 
the  General  Assembly  explicitly  enlarged  the  definition  of  “victim” 
to  include  the  Crime  Victim’s  Compensation  Fund  and  insurance 
Runion
companies.  Therefore,  while  the  General  Assembly  expanded  the 
, 
definition of “victim,” which was the focus of our opinion in 
and  in  doing  so  widened  the  definition  of  that  term,  the  revamping 
of  Section  1106  was  even  more  sweeping  and  implicitly  broadened 
the  class  of  entities  eligible  for  restitution  to  include  government 
agencies, in addition to manifesting a heightened focus on the need for 
and importance of restitution.

981 A.2d at 899-900.

Based  upon  the  legislative  history  of  Section  1106  and  the  General  Assembly’s 
 found that the legislature 

 
extensive revision to that section, the Supreme Court in 
23      Chapter 2      

Brown

Mandatory Restitution at Sentencing

intended  that  a  criminal  offender  not  only  be  required  to  provide  restitution  to  the 
victim directly, but to government agencies which indirectly provide reimbursement to 
the victim, including payment to a medical provider on the victim’s behalf. As Medicare, 
a  government  agency,  made  payments  to  a  medical  provider  on  behalf  of  the  victim 
as  a  direct  result  of  Brown’s  crime,  the  Supreme  Court  found  that  it  was  entitled  to 
reimbursement under Section 1106. 
B.  Current Definitions of “Victim”

, 981 A.2d at 902.

Brown

15

 

 

 

 

A number of statutory provisions define the term “victim”:
1. The Crimes Code

The  propriety  of  ordering  restitution  to  a  victim  is  delineated  in  the  Crimes 
victim
Code, in Chapter 11, Authorized Disposition of Offenders, which provides that upon 
conviction for any crime wherein the 
 suffered personal injury, “the offender 
shall  be  sentenced  to  make  restitution  in  addition  to  the  punishment  proscribed 
therefore.” 18 Pa.C.S.A. § 1106(a).  The term “victim” is defined under this section 
as follows:

“Victim.”

 As defined in section 103 of the act of November 24, 1998 (P.L. 
882, No. 111), known as the Crime Victims Act. The term includes an 
affected government agency, the Crime Victim’s Compensation Fund, 
if  compensation  has  been  paid  by  the  Crime  Victim’s  Compensation 
Fund to the victim, any insurance company that has compensated the 
victim for loss under an insurance contract and any business entity.

 
 2. The Crime Victims Act

18 Pa.C.S.A. § 1106(h).  The Crime Victims Act is codified at 18 P.S. § 11.103. 

The Crime Victims Act, 18 P.S. §§ 11.101 – 11.5102, defines a victim as:

“Victim.” The term means the following:

(1)  A direct victim.

(2)  A parent or legal guardian of a child who is a direct victim, except 
when  the  parent  or  legal  guardian  of  the  child  is  the  alleged 
offender.

(3)  A minor child who is a material witness to any of the following 
crimes  and  offenses  under  18  Pa.C.S.  (relating  to  crimes  and 
offenses) committed or attempted against a member of the child’s 
family:

15  In Commonwealth v. Smith, 956 A.2d 1029 (Pa. Super. 2008)(en banc), the Department of Public Welfare (DPW) was determined to be 

entitled to restitution for expenses incurred in caring for a victim who was the child of the defendant. 

24      Chapter 2      

Mandatory Restitution at Sentencing

 
 
 

Chapter 25 (relating to criminal homicide).
Section 2702 (relating to aggravated assault).
Section 3121 (relating to rape).

(4)  A family member of a homicide victim, including stepbrothers or 
stepsisters, stepchildren, stepparents or a fiancé, one of whom is 
to be identified to receive communication as provided for in this 
act, except where the family member is the alleged offender.

18 P.S. § 11.103.
3.  The Sentencing Code

et  seq
 

., which provides as follows: 

Another reference to a “victim” is made in the Sentencing Code, 42 Pa.C.S.A. § 9701 

(c)  Mandatory  restitution.--In  addition  to  the  alternatives  set  forth 
in  subsection  (a)  of  this  section  the  court  shall  order  the  defendant 
to  compensate  the  victim  of  his criminal  conduct  for  the  damage  or 
injury  that  he  sustained.  For  purposes  of  this  subsection,  the  term 
“victim” shall be as defined in section 479.1 of the act of April 9, 1929 
(P.L. 177, No. 175), known as The Administrative Code of 1929.

42 Pa.C.S.A. § 9721(c). 

 
For purposes of Section 9721, the term “victim” is referenced to the Administrative 
Code of 1929, which was subsequently repealed and recodified in the Crimes Victims 
, 150 A.3d 435, 449 (Pa. 
. 
Act, 18 Pa.C.S.A. § 11.101 
2016). The definition of “victim” is now found at 18 P.S. § 11.103.
C.  Examples

Commonwealth v. Veon

et seq

See

 

1. Compensation for Injury to a Victim

Emotional or Mental Health Injury

Commonwealth v. Balisteri

Injury to the emotional health of a child can be as damaging, if not more so, than 
 
any physical injury. In 
, 478 A.2d 5 (Pa. Super. 1984), the 
Court found that the defendant’s conduct in perpetrating sexual assaults caused severe 
emotional harm to his young victims.  Therefore, he was ordered to “bear the financial 
expense, as far as is feasible, for the alleviation of the mental anguish” and was therefore 
 at 9. The Court 
ordered to pay restitution for psychological treatment and counseling.  
concluded that “
 bodily harm” includes “actual emotional or mental disturbances 
for the purpose of imposing restitution.” 

actual

Id.

Id.

 

25      Chapter 2      

 

 

Mandatory Restitution at Sentencing

 

Lost Wages

Commonwealth v. Burwell

 
Because  the  language  of  Section  1106  clearly  evidences  the  intent  to  provide 
the  victim  with  fullest  compensation  for  his  losses  suffered  as  a  direct  result  of  the 
defendant’s  criminal  conduct,  the  Superior  Court  found  justification  for  a  restitution 
order for lost wages in 
, 58 A.3d 790 (Pa. Super. 2012).  The 
Court looked to the statute’s explicit permission for an insurance company or employer 
(who  provides  an  employee’s  insurance  benefits)  to  be  reimbursed  by  the  defendant 
when  the  victim’s  lost  wages  were  covered  by  an  insurance  or  employment  contract. 
 
The Court held that it would be inconsistent to deny the victim’s direct claim for those 
16
same lost wages, especially where the victim is first in the statutory order of payment.
 

 

Estate of Victim

 
restitution statute.  

Because  an  estate  stands  in  the  shoes  of  the  victim,  it  is  a  “victim”  under  the 

Commonwealth v. Biauce

, 162 A.3d 1133 (Pa. Super. 2017).

“A  personal  representative  in  the  person  of  the  executor  or 
Commonwealth 
administrator of [the victim’s] estate stands in the shoes of the deceased 
Freeze  v. 
v.  Lebarre
victim as far as entitlement to benefits is concerned.” 
Donegal Mut. Ins. Co.

,  961  A.2d  176,  180  (Pa.Super.  2008)  (quoting 

Id.

, 504 Pa. 218, 224, 470 A.2d 958, 961 (1983)). If 
the legislature wanted to extinguish a victim’s right to benefits upon 
death, the legislature would have specifically provided this language 
 “[B]ecause an estate stands in the shoes of the victim 
in the statute. 
under the restitution statute, it is the ‘victim’ within the meaning of 
that statute.” 

 at 181. 

Id.

Commonwealth v. Biauce,

Commonwealth  v.  Lebarre

 162 A.3d at 1139.

In 

 
,  961  A.2d  176  (Pa.  Super.  2008),  the  defendant 
entered a guilty plea to charges of homicide by vehicle while driving under the influence 
of alcohol, homicide by vehicle, and related charges. The trial court found that the estate 
of victim stood in the shoes of victim under 18 Pa.C.S.A. § 1106(c), and therefore it was 
proper to award restitution for the amounts owed by the estate as reimbursement to 
the Department of Public Welfare.  The Department was a “victim” within meaning of 
statute  for  restitution  amounts  directly  to  government  agency  that  has  compensated 
the victim. This case was decided before Section 1106(c) was amended to include any 
“estate or testamentary trust.”  
2.  The Crime Victim’s Compensation Fund

 

    The
16  18 Pa.C.S.A. § 1106(c)(1)(ii)(A). 
mentioned  as a “Victim” in 18 Pa.C.S.A. § 1106(c)(1)(ii)(B).  That section

  Compensation   Board   is

  Victim’s

  Crime

  specifically 

26      Chapter 2      

Mandatory Restitution at Sentencing

provides, in subsection (h):
“Victim.”

 As defined in section 103 of the act of November 24, 1998 (P.L. 
1
882, No. 111), known as the Crime Victims Act.
 The term includes an 
affected government agency, the Crime Victim’s Compensation Fund, 
if  compensation  has  been  paid  by  the  Crime  Victim’s  Compensation 
Fund to the victim, any insurance company that has compensated the 
victim for loss under an insurance contract and any business entity.

18 Pa.C.S.A. § 1106(h). 

 
It is clear that the Crime Victim’s Compensation Board is an appropriate recipient 
Commonwealth  v.  Langston
of mandatory restitution for amounts it has advanced to crime victims in Pennsylvania.  
,  904  A.2d  917  (Pa.  Super.  2006).    However,  the  statute 
Id. 
requires that “a victim’s loss be caused directly by a defendant’s criminal conduct rather 

JUDICIAL POLICY:  Must Be A Direct 
 
Victim Of The Criminal Conduct

than a loss consequential to such conduct.” 
at 923. The mandatory payment of restitution 
pursuant to Section 1106 of the Crimes Code 
is limited to victims who suffer a direct loss and not to third parties, including family 
members, who shoulder the burden of the victim’s losses.

 

Payments to Family Members

Commonwealth  v.  Langston

In 

 
,  904  A.2d  917  (Pa.  Super.  2006),  restitution  was 
ordered to be paid to the Crime Victims Compensation Fund for monies it paid on behalf 
of  Michael  Clark,  who  was  in  utero  at  the  time  of  the  underlying  car  accident  which 
formed  the  basis  for  the  criminal  charges.  There  was  no  evidence  presented  that  he 
suffered any physical injuries as a result of defendant’s conduct. Michael Clark’s loss of 
support resulting from the death of his father, Glenn Clark, and the injuries to his mother, 
Annette Clark, caused during the car accident, while tragic, was an indirect consequence 
of defendant’s criminal conduct.

Langston

The  Court  in 

 
  held  that  it  was  not  disputed  that  Michael  was  a  victim/
claimant for purposes of the Crime Victims Act (CVA).  However, a “claimant” for purposes 
of  the  CVA  is  not  necessarily  a  “victim”  entitled  to  mandatory  restitution  under  18 
Pa.C.S.A. § 1106.  The defendant could only have been required to reimburse the Fund 
under  Section  1106(c)(1)(i)  for  compensation  paid  to  the  direct  victims,  Glenn  Clark 
and Annette Clark, Michael’s parents. Here, the Fund did not make any payments to  the
  direct   victims   of   defendant’s   crimes.   Restitution   is   not   a   replacement   for   child 
support unless the recipient is a direct victim of the crime. 
3.  Payments by Other Governmental Agency

 

A governmental agency is entitled to restitution if 

27      Chapter 2      

Mandatory Restitution at Sentencing

1)  it is a victim as defined by Section 11.103 (a “direct victim”)
2)  it  has  compensated  a  victim  for  loss  under  Section  1106  (a   
government agency, other than the Crime Victim’s Compensation 
Board,  “which  has  provided  reimbursement  to  the  victim  as  a 
result of the defendant’s criminal conduct”)

 , or  

 , or 

18

3)  it is an “affected governmental agency” under Section 1106.

17

19
  

Governmental Agency Not a “Direct Victim” under Section 11.103

Commonwealth v. Veon

Commonwealth  agency
The Pennsylvania Supreme Court’s decision in 

, 150 A.3d 
 
  could  not  be  considered  a  victim 
435  (Pa.  2016)  held  that  a 
entitled  to  restitution  as  defined  by  Section  11.103.  In 
,  our  Supreme  Court’s 
review  of  the  relevant  statutes,  legislative  histories,  and  prior  case  law  led  to  its 
holding  that  a  government  agency,  the  Pennsylvania  Department  of  Community  and 
Economic Development, was “neither a ‘direct victim’ nor a reimbursable compensating 
government  agency  under  Section  1106.” 
, 150 A.3d at  455  (footnote  omitted). 
Importantly,   the  Supreme  Court  scrutinized  the  language  in  Section  11.103  and 
determined that it applied to human beings only:

Veon

Veon

i.e

Notwithstanding any legislative expansion of the definition of “victim,” 
it is clear that the plain text of Section 11.103 still envisages “victims” 
as “persons” commonly understood. A “victim” under Section 11.103 
must be “a direct victim,” 
., an “individual” who has suffered injury, 
death, or loss of earnings; or a “child,” “parent,” “guardian,” or “family 
member.”  Every  relevant  noun  unequivocally  describes  a  human 
being, not a government agency, and nowhere else is there a relevant 
definition that persuades us to broaden the common understanding 
of these words.

Id

. at 454.

Commonwealth  v.  LeClair,

In 

  236  A.3d.  71  (Pa.  Super.  2020),  the  Appellant  was 
 
convicted of first-degree murder and related offenses. Briefly, the facts of the case were 
that the Appellant murdered his wife while out on his boat in Lake Erie.  He disposed of 
her body by weighing it down with an anchor.  He then contacted the United States Coast 
Guard to falsely report that his wife had fallen overboard. At sentencing, he was ordered 
to pay restitution to the USCG for their time and expenses in responding to the call. 
Commonwealth v. Hunt
In  reversing  the  trial  court’s  restitution  order,  the  Superior  Court  first  referenced 

, 220 A.3d 582 (Pa. Super. 2019), and then explained:

17  18 P.S. § 11.103. 
18  18 Pa.C.S.A. § 1106(c)(1)(ii)(D). 
19  18 Pa.C.S.A. § 1106(h): the term “Victim” is defined as, inter alia, “an affected government agency” which is defined as “The Commonwealth, 

 

a political subdivision or local authority that has sustained injury to property.”

28      Chapter 2      

Mandatory Restitution at Sentencing

Commonwealth  v.  Veon
Commonwealth v. Tanner

Based  on  our  review,  we  disagree  with  the  trial  court’s  conclusion 
that the USCG was entitled to restitution as a direct victim under [18 
Pa.C.S.A. § 1106]. As noted previously, our Supreme Court has explicitly 
stated  that  the  term  “direct  victim”  refers  exclusively  to  individuals, 
,  150  A.3d  435, 
not  government  agencies.  [
454 (Pa. 2016)]; see also [
, 205 A.3d 388, 
398 (Pa. Super. 2019)] (stating that Section 11.103 “defines a ‘victim’ 
as an individual who has been harmed by the offender” and noting that 
“a government agency is not entitled to restitution because it is [not] 
an individual victim ....”). Further, we are bound by the 
 Court’s 
holding that the CVA precludes using the now-repealed definition of 
“victim” set forth in the Administrative Code of 1929 or the definition 
of  “person”  in  1  Pa.C.S.  §  1991  to  interpret  the  meaning  of  “victim” 
under the restitution statute. See 
, 220 A.3d at 589-90 (stating 
that the CVA’s definition of ‘victim’ “is the sole definition” for purposes 
of  Section  1106); 
  18  Pa.C.S.  §  1106(h);  18  P.S.  §  11.103. 
Therefore, based on our governing case law, because the USCG cannot 
be classified as a ‘direct victim’ under the CVA, the restitution portion 
of Appellant’s sentence is illegal and must be vacated. See 
 150 
A.3d at 454.

see  also

Hunt

Hunt

Veon

Commonwealth v. LeClair,

 236 A.3d. 71, 86 (Pa. Super. 2020).

Restitution for Compensation Paid to Victim under Section 1106

 
The  1998  amendments  to  the  definition  of  a  “victim”  under  the  Crimes  Code 
broadened  the  class  of  those  entities  eligible  to  receive  restitution.    “Mandatory 
restitution” under Section 1106(c) requires the trial court to order full restitution:

(i) Regardless of the current financial resources of the defendant, so 
as  to  provide  the  victim  with  the  fullest  compensation  for  the  loss. 
The court shall not reduce a restitution award by any amount that the 
other government agency but shall order the defendant to pay any 
victim has received from the Crime Victim’s Compensation Board or 
restitution ordered for loss previously compensated by the board 
to  the  Crime  Victim’s  Compensation  Fund  or  other  designated 
account when the claim involves a government agency in addition 
to or in place of the board.

18 Pa.C.S.A. § 1106(c)(1)(i). The order of priorities of payments include:

(C) Any other government agency which has provided reimbursement 
to the victim as a result of the defendant’s criminal conduct.

18 Pa.C.S.A. § 1106(c)(1)(ii)(C).  
29      Chapter 2      

Mandatory Restitution at Sentencing



  Medicare

Commonwealth v. Brown
In light of the statutory amendments enacted in 1998, the Supreme Court in 
, 981 A.2d 893 (Pa. 2009), upheld a sentencing court’s 
order of restitution to Medicare for expenses it paid to medical providers on 
behalf of an assault victim who suffered injuries at the hands of the defendant. 
981 A.2d at 902. The defendant had argued that Medicare did not pay the victim 
directly, but paid the victim’s medical providers, and therefore Medicare had 
not provided “reimbursement” to the victim. 

Commonwealth  v.  Brown

,  the  Pennsylvania  Supreme  Court  decided  that 
In 
Medicare  was  entitled  to  restitution  for  payments  made  in  reference  to  the 
victim  of  the  defendant’s  criminal  conduct  and  for  the  treatment  of  injuries 
from defendant’s assault.  The Court stated:

[I]nterpreting Section 1106 to embrace those government entities 
that indirectly provide reimbursement to a victim would serve the 
salutary  purposes  of  making  manifest  to  criminal  offenders  the 
egregious nature of their actions, impressing upon defendants that 
they are responsible for their conduct, deterring repeat malfeasance, 
and  encouraging  these  individuals  to  live  in  a  responsible  way. 
Furthermore, we do not believe that such an interpretation would 
Commonwealth v. Figueroa
result in the adverse consequences suggested by [the defendant] 
and posited by the Superior Court in [
, 
such  an  interpretation 
691 A.2d 487 (Pa. Super. 1997)], where restitution is transformed 
is  limited  to  those  government  agencies  which  make  payments  on 
into  a  reimbursement  to  society.  Rather, 
behalf of a victim of a crime.

Brown

 



, 981 A.2d at 901–02 (emphasis added).

  Public Assistance Fraud

In  Pennsylvania,  it  is  a  crime  for  any  person  to  willfully  obtain 
public  assistance  or  federal  food  stamps  using  false  statements, 
misrepresentation, impersonation, or other fraudulent means. 

Restitution to the government is mandatory:

Any  person  committing  a  crime  enumerated  in  subsection  (a) 
shall  be  ordered  to  pay  restitution  of  any  moneys  received  by 
reason of any false statement, misrepresentation, impersonation, 
failure  to  disclose  required  information  or  fraudulent  means. 
Restitution ordered under this subsection may be paid in a lump 
sum, by monthly installments or according to such other schedule 

30      Chapter 2      

Mandatory Restitution at Sentencing

as  is  deemed  just  by  the  sentencing  court.  Notwithstanding  the 
provisions  of  18  Pa.C.S.  §  1106(c)(2)  (relating  to  restitution  for 
injuries to person or property) to the contrary, the period of time 
during  which  the  offender  is  ordered  to  make  restitution  may 
exceed the maximum term of imprisonment to which the offender 
could have been sentenced for the crime of which that person was 
convicted,  if  the  sentencing  court  determines  such  period  to  be 
reasonable and in the interests of justice.

62 P.S. § 481(c).


  Benefits for Injured Police Officer
Commonwealth  v.  Smith

,  699  A.2d  1303  (Pa.  Super.  1997),  the  Superior 
In 
Court was faced with deciding whether the City of Allentown was entitled to 
restitution for having paid the police officer victim’s medical bills, indemnified 
 court 
his wages, and absorbed the cost of his portable police radio.  The 
discussed the 1995 amendments to the restitution statute which were intended 
to reimburse governmental agencies and insurance companies that had paid 
victims  for  losses  that  were  a  direct  result  of  a  defendant’s  criminal  actions.  
Specifically,  the 
  Court  relied  upon  the  dual  purpose  of  mandatory 
restitution: 

Smith

Smith

(1)  to  provide  the  victim  with  the  fullest  compensation 

for the loss, and 

(2)  to  rehabilitate  the  offender  by  impressing  upon  him 
that  his  criminal  conduct  caused  the  victim’s  loss 
or  personal  injury  and  that  it  is  his  responsibility  to 
repair the loss or injury as far as possible.  

In keeping with the purposes behind restitution, the Court held that the City 
was,  for  all  intents  and  purposes,  the  victim’s  insurer,  although  it  was  self-
insured, and that it was entitled to be reimbursed for the amounts it paid to the 
victim to compensate him for his wage loss.


  Drug Offense and Buy Money
Commonwealth  v.  Boyd

,  835  A.2d  812  (Pa.  Super.  2003),  the 
In 
defendant  had  pled  guilty  to  four  counts  of  Delivery  of  a  Controlled 
Substance.  The  Commonwealth  spent  $3,240  for  the  purchase  of 
controlled  substances  from  defendant.  Defendant  argued  that  his 
trial  counsel  should  have  objected  to  the  restitution  because  the 
Commonwealth  failed  to  prove  that  it  was  a  “victim”  within  the 
meaning  of  the  restitution  statute.  Because  the  Commonwealth  had 

31      Chapter 2      

Mandatory Restitution at Sentencing

not reimbursed the victim, directly or indirectly, for property damage 
or  personal  injury,  the  Commonwealth  did  not  fall  under  section 
1106(c)(1)(ii)(C).

See

However, a defendant may be ordered to pay a pro rata share of “buy 
costs
money”  used  by  the  Pennsylvania  State  Police  to  make  undercover 
Commonwealth  v.  Smith
purchases of controlled substances as recoverable as part of the 
 
,  901  A.2d  1030  (Pa. 
of  prosecution.   
Super. 2006). In concluding the trial court had the authority to impose 
the costs, the Superior Court held the

 

buy money expended by officers in furtherance of their investigation 
and  apprehension  of  persons  suspected  of  crime  are  reasonable 
costs of prosecution within the purview of [16 P.S.] § 1403, if such 
funds are not recovered by drug enforcement officers prior to the 
time of sentencing. 

4.  Payments by Insurance Companies

901 A.2d at 1033.

Reimbursement Of Insurance Proceeds Paid To Victim For Defendant’s Conduct

See 
An insurance company is only entitled to restitution if it is a victim as defined 

by Section 11.103, or it has compensated a victim for loss under Section 1106. 
18 P.S. § 11.103; 18 Pa.C.S.A. § 1106(c)(1)(ii)(D). The Crime Victims Act, 18 P.S. § 
11.103, defines “victim” as:

(1) A direct victim
(2) A parent of legal guardian of a child who is a direct victim, except 
when the parent or legal guardian of the child is the alleged offender.
(3)  A  minor  child  who  is  a  material  witness  to  any  of  the  following 
crimes and offenses under 18 Pa.C.S. (relating to crimes and offenses) 
committed or attempted against a member of the child’s family...
(4) A family member of a homicide victim, including stepbrothers or 
stepsisters, stepchildren, stepparents or a fiance, one of whom is to be 
identified to receive communication as provided for in this act, except 
where the family member is the alleged offender.

18 P.S. § 11.103 (1)-(4). “Direct victim” is defined in Section 11.103, in pertinent 
part, as:

individual

An 
 against whom a crime has been committed or attempted 
and who as a direct result of the criminal act or attempt suffers physical 
or mental injury, death or the loss of earnings under this act. The term 

32      Chapter 2      

Mandatory Restitution at Sentencing

shall not include the alleged offender.

Id. 

(emphasis added). Therefore, it would not appear that an insurance company 

could be considered a victim under the Crime Victims Act. 

  However,  under  18  Pa.C.S.A.  §  1106,  the  definition  of  “victim”  includes  an 
insurance  company  which  has  provided  reimbursement  to  a  victim  due  the 
defendant’s  criminal  conduct.  18  Pa.C.S.A.  §§  1106(c)(1)(i)  &(c)(1)(ii)(D).  
Insurance companies are listed in the priorities of payments in § 1106(h). 

[R]estitution for amounts paid by an insurer must be awarded to that 
insurer. The argument that an insurer cannot be considered a victim 
is  clearly  refuted  by  the  definition  of  “victim”  contained  within  the 
statute.  The  term  “Victim”  “includes  ...  any  insurance  company  that 
has compensated the victim for loss under an insurance contract.” 18 
Pa.C.S. § 1106(h). 

Commonwealth v. Stradley

, 50 A.3d 769, 773 (Pa. Super. 2012). 

Therefore, an insurance company that provides payment to a victim of a crime 

is considered a victim itself and entitled to mandatory restitution. 

The term “victim” includes any insurance company that has compensated the 
, 780 

victim for loss under an insurance contract. 
A.2d 714, 720 (Pa. Super. 2001).

Commonwealth v.  Opperman

Furthermore,  the  defendant  does  not  avoid  a  restitution  order  because  the 
victim has already received insurance proceeds which cover the damage caused 
by the defendant’s criminal conduct. Rather, under 18 Pa.C.S.A. § 1106(c)(1)(i), the 
sentencing court should not subtract from its restitution order any sums already 
received by the victim from insurance proceeds, but instead order the defendant 
to pay restitution to an insurance company for loss previously compensated.

Thus,  in  no  uncertain  terms,  the  statutory  language  requires  the 
sentencing court to order restitution so as to provide the victim with 
full compensation for his or her actual loss and that such an award is 
not to be reduced by any amount the victim received from an insurer.

Stradley,

 50 A.3d at 773. 

Victim’s Settlement with Insurance Company Irrelevant

Any release signed due to settlements in civil cases against the defendant, with 
reference to the defendant’s criminal conduct, do not serve to offset mandatory 
restitution.  The release is irrelevant to the sentencing court’s obligation to order 

33      Chapter 2      

Mandatory Restitution at Sentencing

Commonwealth v. Pleger

full mandatory restitution. 
 2007).

Commonwealth v. Guerra

, 934 A.2d 715 (Pa. Super.

In 

, 955 A.2d 416 (Pa. Super. 2008), Guerra, the driver 
of an automobile, pled guilty to third degree murder and related charges following 
an accident which resulted in the death of the driver of the other car. Prior to the 
accident, Guerra had ingested large amounts of cocaine and alcohol. The victim’s 
parents  instituted  a  civil  suit  against  Guerra,  which  was  settled  by  Guerra  for 
amounts paid by AAA–Mid–Atlantic Insurance Group, Guerra’s insurer.  Guerra 
argued that he was entitled to a credit for the amounts paid by his insurer. The 
Court held that there is no entitlement to credit against a restitution obligation 
based upon civil settlement payment made by (or paid on behalf of) a defendant 
to victim’s family.  “The fact that a civil settlement agreement was reached by the 
,  955  A.2d  at 
parties  has  no  bearing  on  the  court-ordered  restitution.”  
419. 
IV.  PROCEDURE

Guerra

nolo contendere

Following a guilty plea, 

 
 plea, or a trial, the trial court must order 
payment of restitution when the crime for which the defendant was convicted involved:

•  Property which was stolen, converted or otherwise obtained, or 
•  Property which sustained a substantial decrease in value as a direct 

result of the crime, or

•  A victim suffered personal injury directly resulting from the crime.

Commonwealth v. Deshong

18  Pa.C.S.A.  §  1106(a).  The  trial  court  is  required  to  set  the  manner  and  amount  of 
, 850 A.2d 712 (Pa. Super. 2004). 
restitution at sentencing. 
 
Section  1106  mandates  this  initial  determination  of  the  amount  of  restitution  at 
sentencing thereby providing the defendant with certainty as to his sentence; subsequent 
modification, if necessary, is permissible. 
, 854 A.2d 1280 (Pa. 
Super. 2004).
C

Commonwealth v. Ortiz

ommonwealth v

. Dietrich

 Id

In 

any time

 
a. 2009), the Pennsylvania Supreme 
, 970 A.2d 1131 (P
Court noted that Section 1106(c)(3) of the Crimes Code authorizes a sentencing court 
to modify restitution orders at 
 provided the court states its reasons as a matter 
at
of record.
 1135 (emphasis in original) (citing 18 Pa.C.S.A. § 1106(c)(3)). The Court
 further  determined  that  “Section  1106(c)(3)’s  broad  language  indicates  a  legislative
 intent  that  courts  have  jurisdiction  to  modify  restitution  orders  at  any  time  without
regard  to  when  information  should  have  been  present  for  consideration.” 
  Section 
1106(c)(3) of the Crimes Code provides that:

Id.

.

The court may, at any time or upon the recommendation of the district 
attorney  that  is  based  on  information  received  from  the  victim  and 
the probation section of the county or other agent designated by the 

34      Chapter 2      

Mandatory Restitution at Sentencing

county commissioners of the county with the approval of the president 
judge  to  collect  restitution,  alter  or  amend  any  order  of  restitution 
made  pursuant  to  paragraph  (2),  provided,  however,  that  the  court 
states its reasons and conclusions as a matter of record for any change 
or amendment to any previous order.  

18 Pa.C.S.A. § 1106(c)(3). Section 1106(c)(3) does not require a court alter or amend a 
restitution order, but merely empowers the trial court to do so.

Although Section 1106(c)(3) allows the judge to alter restitution, this 
does  not  mean  that  in  every  case  the  judge  can  alter  the  restitution 
award at any time for any reason. There must be justifiable reasons 
for the modification, and other principles of law must be followed. At 
some point, finality is needed.
.

Ortiz, 

A.  Best Practices: Advise Defendant at Time of Guilty Plea or Nolo Contendere Plea

854 A.2d at 1282

JUDICIAL POLICY:  Limited Rights to 
 
Appeal After Guilty Plea

 
Although  not  required  by  statute  or  under  the  Rules  of  Criminal  Procedure,  in 
appropriate cases it is best to advise the defendant at the time of a plea of the trial court’s 
mandatory obligation to order restitution at sentencing and of the defendant’s right to 
a hearing on the appropriateness and amount 
of restitution.  By advising the defendant of the 
mandatory nature of restitution at sentencing, 
the trial court can ensure that the defendant is knowingly and voluntarily agreeing to 
the plea.  

JUDICIAL POLICY:  Notice to 
 
Defendant of Plea Premised Upon 
Specific Amount of Restitution

 
If the plea is premised upon the trial court imposing a specific amount of restitution 
upon acceptance of the plea, it is best for the trial court to provide the defendant with 
notice,  both  oral  and  written,  of  the  restitution  provision  prior  to  accepting  the  plea. 
 
  909  A.2d  805  (Pa. 
Super.  2006)(In  negotiated  plea  arrangement, 
the defendant was made aware, prior to entering 
the  plea,  of  the  specific  amount  the  trial  court 

Commonwealth  v.  Rush,

See

 

intended to impose as restitution upon acceptance of the plea).

Rush

supra.

, 

In 

JUDICIAL POLICY:  Appeal Rights 
 
Limited by terms of Negotiated Plea

 
,  the  trial  court,  in  the  codefendant’s  case,  credited  the  victim’s 
testimony to support the restitution determination. Prior to entry of the guilty plea in 
Rush’s case, the trial court judge clearly explained that the restitution order was based 
on  the  victim’s  testimony,  which  the  trial 
court  found  credible,  as  to  the  value  of  the 
  at  810.    Therefore,  there 
stolen  property. 
was no violation of Rush’s due process rights by the trial court’s failure to conduct an 
evidentiary hearing prior to imposing restitution upon Rush’s guilty plea.  Rush entered 
35      Chapter 2      

Id.

Mandatory Restitution at Sentencing

the negotiated plea whereby he was made aware, prior to entering the plea, that the trial 
court would impose a specific amount of restitution upon acceptance of the plea, and 
whereby Rush agreed to accept restitution set in the codefendant’s case for the same 
crimes.
B.  Necessity of a Hearing

i.e.

The  defendant  has  a  right,  grounded  in  statute  and  due  process,  to  a  hearing 
 
during  which  the  Commonwealth,  absent  an  agreement,  must  substantiate  the  need 
See
, the extent of injury suffered by the victim. The trial court must then 
for restitution, 
 18 Pa.C.S.A. § 1106(c)(2)(i) & (c)
determine the amount and method of restitution. 
(4)(i)-(ii). Because a restitution order is within the sound discretion of the trial court and 
must be supported by the record, 
, 780 A.2d 714, 718 (Pa. 
Super.  2001),  it  is  recommended  that  the  trial  court  make  a  record  of  its  factual  and 
credibility  findings  and  legal  conclusions.  “[T]he  [trial]  court  must  ensure  that  the 
Commonwealth v. Atanasio
record  contains  the  factual
 basis  for  the  appropriate  amount  of  restitution.” 

Commonwealth v. Opperman

, 997 A.2d 1181, 1183 (Pa. Super. 2010)(citation omitted). 

Commonwealth  v.  Ortiz

 
JUDICIAL POLICY:  Restitution Must 
 
at  a  sentencing  hearing  or  hearings. 
Be Imposed at the Initial Sentencing 
Hearing with Full Constitutional 
Safeguards.

The  trial  court  must  determine  the  amount  that  constitutes  the  “full  restitution” 
,  854  A.2d  1280,  1282 
(Pa.  Super.  2004).    Best  practices  include 
keeping  the  sentencing  hearing  open,  with 
a  rescheduled  date,  if  the  trial  court  cannot 
make  a  final  determination  of  restitution  at 

the initial sentencing hearing. 

 
Although  it  is  mandatory  under  Section  1106(c)  to  award  full  restitution,  it  is
  necessary that the amount of the ‘full restitution’ be determined under the adversarial
 system with considerations of due process.”

Commonwealth v. Boone

Commonwealth v. Pleger,

It  is  the  Commonwealth’s  burden  of  proving  its  entitlement  to 
, 862 A.2d 639, 643 (Pa. Super. 
restitution. 
2004) (stating that the amount of restitution must be supported by the 
record). When fashioning an order of restitution, the lower court must 
ensure that the record contains the factual basis for the appropriate 
amount of restitution. 
 934 A.2d 715, 720 
(Pa. Super. 2007). The dollar value of the injury suffered by the victim 
as a result of the crime assists the court in calculating the appropriate 
 The amount of the restitution award may not 
amount of restitution. 
be  excessive  or  speculative. 
,  909  A.2d  805, 
810 (Pa. Super. 2006). It is well-settled that “[a]lthough it is mandatory 
under section 1106(c) to award full restitution, it is still necessary that 
Commonwealth v. Ortiz
the amount of the ‘full restitution’ be determined under the adversarial 
system with considerations of due process.” 
, 
854 A.2d 1280, 1282 (Pa. Super. 2004).

Commonwealth  v.  Rush

Id.

36      Chapter 2      

Mandatory Restitution at Sentencing

Commonwealth v. Atanasio

award may not be excessive or speculative. 
829, 843 (Pa. Super. 2004).

C.   The Sentencing Hearing

Id.

Commonwealth v. Pappas

, 997 A.2d 1181, 1183 (Pa. Super. 2010). The restitution 
, 845 A.2d 

; 

  The procedure and requirements for a restitution hearing are spelled out in 
Pa.R.Crim.P. 705.1: 

Rule 705.1  Restitution

(A)  At  the  time  of  sentencing,  the  judge  shall  determine 

what restitution, if any, shall be imposed.

(B)  In  any  case  in  which  restitution  is  imposed,  the  judge 

shall state in the sentencing order:
(1)  the amount of restitution ordered;
(2)  the details of a payment plan, if any, including when 

payment is to begin;

(3)  the identity of the payee(s);
(4)  to which officer or agency the restitution payment 

shall be made;

amount; and

(5)  whether any restitution has been paid and in what 

(6)  whether the restitution has been imposed as a part 
of the sentence and/or as a condition of probation.

nolo 
"Except  as  provided  by  Rule  702(B),  sentence  in  a  court  case  must  typically  be

 
contendere
  imposed  within  90  days  of  conviction  or  the  entry  of  a  plea  of  guilty  or  

."  Pa.R.Crim.P. 704(A)(1).

 

Use of a Pre-Sentence Investigation Report

 

JUDICIAL POLICY:  Pre-sentence 
 
Reports May Be Utilized To 
Address Restitution

Pa.R.Crim.P.  702  provides  that  a  pre-sentence  investigation  report  “shall  include 
a  victim  impact  statement  as  provided  by  law.” 
Pa.R.Crim.P.  702(A)(4).  Although  a  defendant 
has a right to a hearing on restitution, that right 
can be waived when the defendant stipulates to 
the amount of restitution and raises no objection to the restitution order at the time of 
sentencing.

Commonwealth  v. Darling

•  The Carbon County Court of Common Pleas, in 

, 58 Pa. 
D. & C.4th 378, 388 (Pa. Com. Pl. 2002), accepted the presentence investigation 

37      Chapter 2      

Mandatory Restitution at Sentencing

report prepared pursuant to Rule 702 and made it part of the record at sentencing. 
The presentence report contained copies of the billing invoices for the medical, 
hospital and emergency services provided to the victim for the injuries directly 
attributable  to  the  defendant’s  conduct.    The  trial  court  ruled  that  because 
the victim impact statement was made part of the record, was provided to the 
defendant, and the information contained therein was subject to reasonableness 
and necessity arguments by the defendant at the hearing on restitution, the trial 
court  justifiably  relied  upon  the  report  in  calculating  the  need  and  amount  of 
restitution. 

Commonwealth  v.  Pappas

• 

,  845  A.2d  829  (Pa.  Super.  2004),  a  presentence 
In 
report was used by the trial court to justify the award of restitution. The appellant 
challenged the trial court’s determination of the amount of restitution, arguing 
that the presentence report had not been made part of the record.  The Superior 
Court rejected this argument:

Appellant argues that the sentence of restitution is not supported by 
the record because the specific values for the vehicles were not brought 
A 
out during trial, and that the pre-sentence investigation report is not 
pre-sentence report is part of the record and may be considered 
part  of  the  record  on  which  the  sentence  may  rely.  We  disagree. 
by the sentencing court

Commonwealth v. Yanoff,

See

. 

 [

Commonwealth  v.  Masip

 690 A.2d 
260, 266 (Pa. Super. 1997)] (use of pre-sentence report information 
,  567
by  sentencing  court  is  permissible); 
A.2d   331,   336   (Pa.  Super.  1989) (“A   presentence   report 
constitutes part of the record and speaks for itself.... It is presumed to 
be valid and need not be supported by evidence unless and until it is 
challenged by the defendant.”).

Pappas

 

, 845 A.2d at 842 (emphasis added). 

 

 

initial 
Ramos

Amount and Method of Payment Must Be Ordered at Sentencing

Commonwealth v. Ramos

 
sentencing.” 

The trial court must impose “some amount and method of restitution at the 
, 197 A.3d 766, 769 (Pa. Super. 2018). In 

JUDICIAL POLICY:  An Amount 
 
and Method of Payment for 
Restitution Must Be Imposed at 
the Initial Sentencing Hearing.

, 
at  the  defendant’s  initial  sentencing,  instead  of 
ordering a specific amount of restitution, the trial 
Id.
court scheduled a restitution hearing at a later date. 
 at 768. The Superior Court held that there is no 
discretion in the trial court to postpone a restitution 
hearing until a later date: “it is the court’s order at the initial sentencing, postponing 
the imposition of restitution until a later date that fails . . . to meet the criteria of the 
restitution statute and taints the entire sentence.” 
. at 770. Therefore, the trial court 
  had  no  authority  to  impose  restitution  while  simultaneously  deferring  the 
in 
amount and method of such until a later date; the initial sentencing order constituted 
38      Chapter 2      

Ramos

Id

Mandatory Restitution at Sentencing

Id

an illegal sentence. 
entirety and remanded the case to the trial court for resentencing. 

. 771. Consequently, the Superior Court vacated the sentence in its 

Commonwealth v. Muhammed

Id.

In 

JUDICIAL POLICY:  Impermissible to 
 
Defer Restitution to a Later Hearing.

, 219 A.3d 1207 (Pa. Super. 2019), the trial court 
 
Id
ordered Appellant to pay court costs plus a restitution amount that would be determined 
at  a  future  hearing. 
.  at  1212.  However,  the 
trial court did not specify a restitution amount 
or  payment  method.  Instead,  several  days 
later, the trial court held a restitution hearing where the defendant was subsequently 
ordered  to  pay  a  specified  amount  in  specified  installments.  The  Superior  Court  held 
that “the trial court had no authority to impose restitution while deferring the amount…
for decision at a later date.” 
 at 1213. The Superior Court vacated the entire sentence 
and remanded for resentencing.

Id.

If restitution is ordered as part of a sentence under 18 Pa.C.S.A. § 1106(a), 

 
v. Holmes
the same time also be ordered as a condition under Section 9754(c)(8). 

en banc

, 155 A.3d 69, 87-88 (Pa. Super. 2017)(the 

 court was evenly divided on 

Commonwealth 
it cannot at 

every issue except this one).

In summary, when a trial court is handling a claim for restitution, Section 1106(c) has 
two components:

i.e.

•  The time at which restitution must be imposed, 
•  The specific nature of such sentence, 

, the sentencing hearing; and
., definite as to amount and method of 
Commonwealth 

i.e

Commonwealth v. McCabe

payment. 

See
v. Mariani

 

, 869 A.2d 484 (Pa. Super. 2005).
 infra

, 230 A.3d 1199, (Pa. Super. 2020) citing 

or  further  discussion  on  the  amount  of  restitution,  see  Section  V(C),  Amount  of 
F
 
Restitution,
D. Restitution Not Affected by Bankruptcy

.. 

 
A  restitution  order  imposed  in  a  criminal  proceeding  is  not  dischargeable  in  a 
liquidation  or  “straight  bankruptcy”  proceeding  under  Chapter  7  of  the  Bankruptcy 
Code:

[W]e hold that [11 U.S.C.A.] § 523(a)(7) preserves from discharge any 
condition a state criminal court imposes as part of a criminal sentence.

Kelly v. Robinson

ommonwealth  v.  Petrick, 

, 479 U.S. 36, 50, 107 S.Ct. 353, 361, 93 L.Ed.2d 216 (1986).  

C

In 

 
39      Chapter 2      

217  A.3d  1217  (Pa.  2019),  in  an  opinion  written 

Mandatory Restitution at Sentencing

JUDICIAL POLICY:  Restitution Not 
 
Dischargeable in Bankruptcy Chapter 7

by Justice Sallie Updyke Mundy, the Pennsylvania Supreme Court held that mandatory 
restitution  in  the  amount  of  $6,700  as  part 
of a sentence for theft by deception, arising 
out of the victims’ advance payments to the 
defendant for remodeling work that he never performed, together with the defendant’s 
failure  to  refund  money,  was  exempt  from  discharge  in  Chapter  7.    The  Court  ruled 
that  the  restitution  order  was  not  dischargeable  regardless  of  whether  the  criminal 
prosecution occurred after the defendant had been granted discharge or if the victims 
had failed to object to the discharge order in the bankruptcy proceedings. 

C

ommonw

ealth v. Shotwell,

In 

 
 717 A.2d 1039 (Pa. Super.  1998), the defendant was 
ordered to pay restitution after his discharge in bankruptcy was received. The defendant 
claimed  to  have  listed  the  victim  in  his  bankruptcy  petition,  thereby  discharging  the 
debt prior to the order of restitution. The court made no determination as to whether 
the victim had in fact been listed, notified or discharged in the defendant’s bankruptcy 
proceedings. he  Trial  Court  went  on  to  reason  that  the  discharge  in  bankruptcy  did
  not apply even if the debt to the victim had been discharged in bankruptcy 
 the
Id.
 criminal  charges  were  filed  or  the  restitution  ordered,  as  an  “obligation  of  criminal
  restitution does not arise out of the same duty as the allegedly discharged civil debt”. 
 at 1045.

before

  T

, 

supra

Kelly  v.  Robinson

Upon examination of the facts of this case, in light of the relevant law, we 
hold that an order of restitution, payable pursuant to the Pennsylvania 
Crimes Code, is not subject to discharge under the Bankruptcy Code. 
.  We  further 
See  11  U.S.C.A.  §  523(a)(7); 
hold that an order of restitution entered subsequent to a bankruptcy 
discharge  is  separate  and  distinct  from  any  discharge  involving  a 
civil debt. Here, the trial court’s order of restitution arose out of the 
traditional responsibility of the Commonwealth to protect its citizens 
by  enforcing  its  criminal  statutes  and  to  rehabilitate  offenders  by 
imposing a criminal sanction intended for that purpose. See 
. Neither 
the Bankruptcy Code nor Pennsylvania law will allow appellant to avoid 
the  consequences  of  his  criminal  scheme,  as  the  decision  to  impose 
restitution turns on the penal goals of the State and the situation of the 
offender. A condition of restitution in a criminal sentence simply does 
not recreate the civil debtor-creditor relationship that existed in the 
bankruptcy proceedings. 
 Accordingly, we will not disturb the trial 
court’s restitution order.

Id.

id

Shotwell

, 717 A.2d at 1046.

In re Fidler,

40      Chapter 2      

In 

 442 B.R. 763 (Bankr. D. Nev. 2010), the defendant was charged with 
 
issuing bad checks after he had obtained a discharge in bankruptcy.  The Bankruptcy 
Court refused to stay the criminal proceedings:

Mandatory Restitution at Sentencing

Gruntz

 Nev. Rev. Stat.
 

The penalty in Nevada for issuing checks without sufficient funds is 
one to four years in prison, and a fine of up to $5,000.
§ 193.130  (2009).  Additionally,  “the  court  shall  order  restitution.”
,  we  hold  that  there  is
Nev.Rev.Stat.  §  205.130  (20009).  Like 
“no   rationale   or   justification   for   severing   economic   and
Gruntz v. County of Los  Angeles
noneconomic   ramifications  of  the  debtor’s  criminal  conduct.”
[
,  202  F.3d  1074,  1085-1086  (9th
  While   the   restitution   obligation   is   subject   to
Cir.
limitations,  the  state  courts  are  not  precluded  by  bankruptcy  law
from   imposing   it.   See   3   Collier   on   Bankruptcy  ¶  362.04  (Alan  N.
Resnick  &  Henry  J.  Sommer  eds.,  16th  ed.)   (“A   criminal   court   may
jail  or  fine  the  debtor  for  actions  before  or  after  commencement  of
a  case,”  including  failure  to  pay  criminal  restitution.).

  2000)].

Fidler,

 442 B.R. at 767-768. 

JUDICIAL POLICY:  Automatic
Stay Provision Not Applicable 
to Restitution.

Furthermore, the automatic stay provision of the Bankruptcy Code does not apply 
to restitution.  Because the collection of restitution 
is  a  continuation  of  a  criminal  action,  a  state 
court  may  proceed  with  a  criminal  prosecution 
without  violating  the  automatic  stay  provisions  of 

bankruptcy law:   

The  plain  language  of  §  362(b)(1)  exempts  the  “commencement  or 
continuation  of  a  criminal  action  or  proceeding  against  the  debtor” 
from the automatic stay afforded by § 362(a). 

United States v. Colasuonno

, 697 F.3d 164, 173 (2d Cir. 2012).

20

Nor is a restitution obligation dischargeable under Chapter 13

  of the Bankruptcy 

Code. 11 USC §1328(a)(3) provides in pertinent part:

(a) Subject to subsection (d), as soon as practicable after completion
by the debtor of all payments under the plan, and in the case of a debtor 
who is required by a judicial or administrative order, or by statute, to
pay a domestic support obligation, after such debtor certifies that all
amounts payable under such order or such statute that are due on or
before the date of the certification (including amounts due before the
petition was filed, but only to the extent provided for by the plan) have
been  paid,  unless  the  court  approves  a  written  waiver  of  discharge
executed by the debtor after the order for relief under this chapter, the
court shall grant the debtor a discharge of all debts provided for by
the plan or disallowed under section 502 of this title, except any debt--

20  11 USC §§1301 et seq. 

41      Chapter 2      

Mandatory Restitution at Sentencing

(3) for  restitution,  or  a  criminal  fine,  included  in  a  sentence  on  the
debtor’s conviction of a crime . . . .

. . .

11 U.S.C.A. § 1328.
V

. BURDEN OF PROOF

A. Burden of Proving Entitlement on the Commonwealth

JUDICIAL POLICY:  The
Commonwealth has the burden
of proving entitlement to
restitution.

Although an order of restitution is mandatory, “[i]t is the Commonwealth’s burden
of proving its entitlement to restitution.” The burden 
Commonwealth 
may not be placed upon the defendant to rebut the 
v. Atanasio
assertions  of  the  Commonwealth. 

, 997 A.2d 1181, 1183 (Pa. Super. 2010).

The  responsibilities  of  the  District  Attorney  are  detailed  in  18  Pa.C.S.A.  §  1106, 

 
which provides, in subsection (c):

(4) (i)  It  shall  be  the  responsibility  of  the  district  attorneys  of  the
respective  counties  to  make  a  recommendation  to  the  court  at  or
prior  to  the  time  of  sentencing  as  to  the  amount  of  restitution  to
be ordered. This recommendation shall be based upon information
solicited by the district attorney and received from the victim.

(ii) Where  the  district  attorney  has  solicited  information  from  the
victims as provided in subparagraph (i) and has received no response, 
the  district  attorney  shall,  based  on  other  available  information,
make a recommendation to the court for restitution.

(iii) The  district  attorney  may,  as  appropriate,  recommend  to  the
court that the restitution order be altered or amended as provided
in paragraph (3).

18 Pa.C.S.A. § 1106(c)(4).  

When fashioning an order of restitution:





the lower court must ensure that the record contains the factual basis for the
appropriate amount of restitution.” 
Id.
It is well settled that an award of restitution cannot be excessive or speculative. 

, 997 A.2d at 1183.

Atanasio

42      Chapter 2      

Mandatory Restitution at Sentencing



  Although  it  is  mandatory  under  Section  1106(c)  to  award  full  restitution, 
“it  is  still  necessary  that  the  amount  of  the  ‘full  restitution’  be  determined 
Commonwealth v. Ortiz
., quoting 
under the adversarial system with considerations of due process.” 

Id

Commonwealth  v.  Atanasio
nolo contendere

, 854 A.2d 1280, 1282 (Pa.Super.2004).

In 

 
pleaded 

JUDICIAL POLICY:  The Burden 
 
Cannot be Shifted to the Defendant.

,  997  A.2d  1181  (Pa.  Super.  2010),  the  defendant 
to simple assault for punching the victim in the face. At sentencing, 
 
the  trial  court  awarded  restitution  for  the 
victim’s  broken  ankle,  which  was  diagnosed 
three days after the assault. The defendant filed 
a  motion  to  modify  sentence  in  which  he  challenged  the  award  of  restitution.  At  the 
hearing, the defendant argued that the Commonwealth offered no evidence connecting 
the broken ankle to the assault in question. The trial court, however, replied that it was 
the defendant who had failed to prove the ankle injury was not related to the assault, 
and it denied the defendant’s motion to modify sentence. On appeal, the Superior Court 
reversed  and  remanded  for  a  new  restitution  hearing.  It  was  the  Commonwealth’s 
burden,  the  Court  explained,  to  prove  the  causal  relationship  between  the  victim’s 
broken ankle and the punch the defendant delivered to the victim’s face that resulted in 
Commonwealth v. Crosley,
 plea to simple assault. In denying the defendant’s motion, the trial 
his 
court had impermissibly shifted the burden of proof. 
 
180 A.3d 761, 772 (Pa. Super. 2018).

nolo contendere

See



 

  Section 1106 requires that a victim’s loss be caused directly by a defendant’s 
Commonwealth v. Langston
criminal  conduct  rather  than  a  loss  consequential  to  such  conduct. 

, 904 A.2d 917, 923 (Pa. Super. 2006).  

JUDICIAL POLICY:  Forfeiture 
 
of Opportunity to Order or 
Seek Restitution.

 
Both the Commonwealth and the trial court must take action regarding restitution 
at the initial sentencing hearing; in default thereof, the right to enter a restitution order 
is lost.  The Commonwealth must present evidence 
and a recommendation for restitution, and the trial 
court  must  enter  an  order  specifying  an  amount 
of  restitution  and  a  method  of  payment,  at  the 

Commonwealth v. Lekka

sentencing hearing.  

, 210 A.3d 343, 358 (Pa. Super. 2019).

Because, as all parties agree, the Commonwealth did not recommend 
restitution, there was no discussion of the propriety of a restitution 
award at the sentencing hearing, and there is no support in the record 
for  the  amount  of  restitution  ordered,  the  portion  of  Appellant’s 
sentence requiring that he pay restitution in the amount of $ 1,000 to 
the victim’s heirs was in error.

 Lekka

, 210 A.3d at 358.

The  Commonwealth  forfeits  its  right  to  seek  restitution  if  it  does  not  make  a 
 
recommendation to the sentencing court as to the amount of restitution to be ordered, 
and presents evidence thereof, based on information provided by the victim or other 
available source.
43      Chapter 2      

Mandatory Restitution at Sentencing



  Furthermore, the trial court must enter a definite amount of restitution, and a 
method of payment, at the initial sentencing hearing, or else the right to seek 
restitution is forfeited.  

Pa.R.Crim.P. 704, Procedure at Time of Sentencing, provides:

(A)  Time for Sentencing.

(1)  Except as provided by Rule 702(B), sentence in a court case shall 
ordinarily be imposed within 90 days of conviction or the entry of 
.
a plea of guilty or 

nolo contendere

(2)  When the date for sentencing in a court case must be delayed, for 
good cause shown, beyond the time limits set forth in this rule, the 
judge  shall  include  in  the  record  the  specific  time  period  for  the 
extension.

 
The Superior Court has stated that as long as the sentencing court sets “some” type 
of restitution at the initial sentencing, meaning an amount and method of payment, in 
accordance with Rule 704, then the court retains the authority to modify restitution at a 
later date if necessary under the circumstances. 

some

As  long  as  the  sentencing  court  sets 
  amount  and  method  of 
restitution  at  the  initial  sentencing,  the  court  can  later  modify  that 
Commonwealth v. Dietrich
order,  but  only  if  the  requirements  of  Section  1106(c)(3)  are  met. 
, 601 Pa. 58, 970 A.2d 1131 (2009). This 
authority to modify restitution takes into account that the full amount 
of  restitution  might  be  indeterminable  before  sentencing  under 
Pa.R.Crim.P. 704.

Commonwealth v. Ramos,

B.  Standards

 197 A.3d 766, 770 (Pa. Super. 2018).

 

1.  Burden of Proving Entitlement to Restitution - Summary

  Although  an  award  of  restitution  lies  within  the  discretion  of  the  trial  court, 
Commonwealth v. Rotola,
it  should  not  be  speculative  or  excessive  and  the  appellate  courts  must  vacate  a 
restitution order which is not supported by the record. 
 
173 A.3d 831, 834 (Pa. Super. 2017). 
Commonwealth  v.  Atanasio
It  is  the  Commonwealth’s  burden  of  proving  its  entitlement  to  restitution. 
 
JUDICIAL POLICY:  The 
 
,  997  A.2d  1181,  1183  (Pa.  Super.  2010).    When 
Commonwealth has the burden of 
fashioning  an  order  of  restitution,  the  trial 
proving entitlement to restitution.
court  must  ensure  that  the  record  contains 
the factual basis for the appropriate amount 

44      Chapter 2      

Mandatory Restitution at Sentencing

Commonwealth v. Pleger,

 934 A.2d 715, 720 (Pa. Super. 2007). The 
of restitution. 
dollar value of the injury suffered by the victim as a result of the crime assists the 
court in calculating the appropriate amount of restitution. 

Id

. 

  The Commonwealth must present evidence that the victim suffered a loss that 
Commonwealth v. Poplawski
flows  from  the  conduct  of  the  defendant  in  relation  to  the  crime  for  which  the 
defendant was convicted. 
, 158 A.3d 671 (Pa. Super. 
2017). 

 
It  is  well-settled  that  “[a]lthough  it  is  mandatory  under  section  1106(c)  to 
award  full  restitution,  it  is  still  necessary  that  the  amount  of  the  ‘full  restitution’ 
Commonwealth v. Ortiz
be determined under the adversarial system with considerations of due process.” 

, 854 A.2d 1280, 1282 (Pa. Super. 2004).

2.  Burden of Proof

JUDICIAL POLICY:  Pennsylvania 
 
has not adopted a specific Burden 
of Proof.

  Although  the  Commonwealth  has  the  burden  of  proving  the  entitlement  to 
is  silent 
restitution,  Pennsylvania 
on  the  specific  standard  of  proof  the 
Commonwealth  bears 
support  a 
restitution  order.    This  differs  from  the 
federal system and most other state courts which require proof by a preponderance 
of the evidence.  

law 

to 

Federal Law

  There  are  three  primary  acts  that  govern  restitution  in  criminal  cases  in  the 
federal courts: 

(1)  the Victim and Witness Protection Act of 1982 (“VWPA”), largely codified at 18 

(2)  the Mandatory Victims Restitution Act of 1996 (“MVRA”), largely codified at 18 

U.S.C. §§ 3663, 3664; 

U.S.C. § 3663A; and 

(3)  the Crime Victims’ Rights Act (“CVRA”), largely codified at 18 U.S.C. § 3771.

  Under the MVRA, the burden of demonstrating the amount of the loss sustained 
by  a  victim  as  a  result  of  the  offense  is  on  the  attorney  for  the  Government  by  a 
preponderance of the evidence:

§  3664.  Procedure  for  issuance  and  enforcement  of  order  of 
restitution

(e)

45      Chapter 2      

 Any dispute as to the proper amount or type of restitution shall 

Mandatory Restitution at Sentencing

be resolved by the court by the preponderance of the evidence. The 
burden of demonstrating the amount of the loss sustained by a victim 
as a result of the offense shall be on the attorney for the Government. 
The burden of demonstrating the financial resources of the defendant 
and the financial needs of the defendant’s dependents, shall be on the 
defendant.  The  burden  of  demonstrating  such  other  matters  as  the 
court  deems  appropriate  shall  be  upon  the  party  designated  by  the 
court as justice requires.

United States v. Kay

18  U.S.C.A.  §  3664  (e).  “The  government  bears  the  burden  of  proving  by  a 
preponderance of the evidence the amount of the loss sustained by a victim as a 
result of the offense.” 
, 717 F.3d 659, 667 (8th Cir. 2013).  “And
 once  the  Government  has  satisfied  its  burden  to  offer  evidence  supporting  its
  restitution calculation, the burden shifts to the defendant to dispute the amount with
 her own evidence. Any dispute as to the proper amount or type of restitution shall 
United States v. Steele
 
be resolved by the court by the preponderance of the evidence. 18 U.S.C. § 3664(e).” 

, 897 F.3d 606, 613 (4th Cir. 2018) (citations omitted). 

  Typical State Law

  Massachusetts law requires all of the procedural safeguards that are applicable 
in Pennsylvania but further utilizes the preponderance of the evidence standard to 
prove the amount of restitution:

At  a  restitution  hearing,  the  Commonwealth  bears  the  burden  of 
proving the amount of the loss by a preponderance of the evidence. 
Moreover,  the  defendant  must  have  an  opportunity  to  be  heard  and 
to  cross-examine  witnesses.  The  defendant  is  entitled  to  rebut  the 
victim’s  estimate  of  the  injury  with  the  defendant’s  own  experts  or 
witnesses. 

Commonwealth  v.  Chase,

and citations omitted).  

 877  N.E.2d  945,  955  (Mass. App. Ct.  2007)(quotations 

  Numerous other states have adopted the preponderance of the evidence standard:

H.L.C.  v.  State

,  950  So.2d  1268  (Fla.  Dist.  Ct.  App.  2007)(“In  a  restitution 
proceeding, it is the State’s burden to prove the amount of loss for restitution 
State  v.  Simmons, 
purposes. The burden of proof is by a preponderance of the evidence.”); 

88  N.E.3d  651  (Ohio  2017)(amount  of  restitution  must 
be based on the criminal conduct of which the defendant was convicted, the 
economic loss must be direct and proximate result of that conduct, and the 
People v. Horne, 
standard to prove restitution is by a preponderance of the evidence); 

767 N.E.2d 132 (N.Y. 2002)(the prosecution bears the burden 
of proving, by a fair preponderance of the evidence, the facts in support of 
restitution).



 


 

 



46      Chapter 2      

Mandatory Restitution at Sentencing

  Restitution is Decided by the Trial Judge

Apprendi v. New Jersey

  Furthermore, the federal courts, and most state courts, have uniformly rejected 
the  argument  that  the  decision  to  award  restitution  requires  submission  to  a 
jury pursuant to 
, 530 U.S. 466 (2000). These cases have 
acknowledged the lower standard of a preponderance of the evidence as contrasted 
with beyond a reasonable doubt, but held that the restitution order is determined 
, 470 F.3d 390 
by the trial judge rather than a jury. See 
(3d Cir. 2006); 
 2020 WL 205302 (Cal. 2020).  In support of this
 holding, the Third Circuit Court of Appeals has stated:

United States v. Milkiewicz

People v. Mercer,

Restitution is, at its essence, a restorative remedy that compensates 
victims  for  economic  losses  suffered  as  a  result  of  a  defendant’s 
criminal conduct. In this sense, even though restitution is a criminal 
punishment,  it  does  not  transform  a  defendant’s  punishment  into 
something more severe than that authorized by pleading to, or being 
convicted of, the crime charged.

Rather,  restitution  constitutes  a  return  to  the  status  quo,  a  fiscal 
realignment whereby a criminal’s ill-gotten gains are returned to their 
rightful owner. In these circumstances, we do not believe that ordering 
a convicted defendant to return ill-gotten gains should be construed 
United States v. Booker
as  increasing  the  sentence  authorized  by  a  conviction  pursuant  to 
, 543 U.S. 220 (2005)]
[

United States v. Leahy

, 438 F.3d 328, 338 (3d Cir. 2006)

21

  Act 84
 , codified in 42 Pa.C.S.A. § 9728, specifies procedures for the collection of 
restitution, reparation, etc., and allows the Pennsylvania Department of Corrections 
to make monetary deductions from an inmate’s account for the purposes of collecting 
restitution and court costs. 42 Pa.C.S.A. § 9728(b)(5). Adding further support for the 
Richardson  v.  Pennsylvania  Department  of 
 is the 
finding that the procedure to establish restitution does not violate 
Corrections
Commonwealth  Court’s  decision  in 

Richardson

Apprendi

Buck  v.  Beard

, 991 A.2d 394 (Pa. Cmwlth. 2010). In 

, the Commonwealth 
Court held that Act 84, i.e., deductions from an inmate’s account to pay and order for 
restitution and costs, did not violate due process rights even though the deductions 
are made without an opportunity for a hearing.  The Commonwealth Court found 
guidance  in 
,  879  A.2d  157  (Pa.  2005),  in  which  the  Pennsylvania 
Supreme  Court  held  that  a  sentencing  hearing  provides  all  the  process  required 
before deductions are made from an inmate account.

C.  Amount of Restitution

21  Act 84, Act of June 18, 1998, P.L. 640. 
 

The  amount  of  restitution  and  the  method  of  payment  must  be  specified  by  the 

47      Chapter 2      

Mandatory Restitution at Sentencing

sentencing court.  18 Pa.C.S.A. § 1106(c)(2) provides:

(2) At the time of sentencing the court shall specify the amount and 
method  of  restitution.  In  determining  the  amount  and  method  of 
restitution, the court:

(i)  Shall  consider  the  extent  of  injury  suffered  by  the  victim,  the 
victim’s request for restitution as presented to the district attorney 
in  accordance  with  paragraph  (4)  and  such  other  matters  as  it 
deems appropriate.

(ii) May order restitution in a lump sum, by monthly installments or 
according to such other schedule as it deems just.

(iii) Shall not order incarceration of a defendant for failure to pay 
restitution if the failure results from the offender’s inability to pay.

(iv)  Shall  consider  any  other  preexisting  orders  imposed  on  the 
defendant, including, but not limited to, orders imposed under this 
title or any other title.

18 Pa.C.S.A. § 1106(c)(2).

 
In  determining  the  amount  of  restitution  to  be  ordered,  a  sentencing  court  must 
consider the amount of loss suffered by the victim, the fact that the defendant’s actions 
caused the injury, and the type of payment that will best serve the needs of the victim 
and the capabilities of the defendant.  
, 722 A.2d 157, 159 (Pa. 
Super. 1998).

Commonwealth v. Wright

 

JUDICIAL POLICY:  The 
 
Amount of Restitution Must Be 
Supported in the Record.

Since an order of restitution is a sentence, whether it is imposed as a direct sentence 
or as a condition of probation, it must be supported 
by  the  record  and  may  not  be  speculative  or 
excessive. 
 13 A.3d 831, 
834 (Pa. Super. 2017). 

Commonwealth v. Rotola,

Commonwealth 
Due to the language “directly resulting from the crime,” restitution is “proper only 

 
if there is a direct causal connection between the crime and the loss.”  

v. Harriott

JUDICIAL POLICY:  The Amount 
 
of Restitution Must Be Supported 
in the Record.

, 919 A.2d 234, 238 (Pa. Super. 2007). 
“The  sentencing  court  applies  a  ‘but  for’  test 
in  imposing  restitution;  damages  which  occur 
Commonwealth v. 
as  a  direct  result  of  the  crimes  are  those  which 

Poplawski
would not have occurred but for the defendant’s criminal conduct.” 

Commonwealth v. Burwell

, 158 A.3d 671, 674 (Pa. Super. 2017). A restitution order must not exceed the 

, 58 A.3d 790, 794 (Pa. Super. 2012).

victim’s losses. 

48      Chapter 2      

Mandatory Restitution at Sentencing

VI.  RESTITUTION PAYMENTS

A.  Amount of Restitution

Restitution must be imposed at the time of sentencing, and the amount and method 
 
determined at 
of payment must be specified by the sentencing court.  A sentence which includes the 

JUDICIAL POLICY:  The amount 
 
and method of payment must be 
imposed at the time of sentencing.

some later date or hearing
provision that restitution is to be 

illegal. 18 Pa.C.S.A. § 1106(c)(2) provides:

 renders the sentence 

(2) At the time of sentencing the court shall specify the amount and 
method  of  restitution.  In  determining  the  amount  and  method  of 
restitution, the court:

(i)  Shall  consider  the  extent  of  injury  suffered  by  the  victim,  the 
victim’s request for restitution as presented to the district attorney 
in accordance with paragraph (4) and such other matters as it deems 
appropriate.

(ii) May order restitution in a lump sum, by monthly installments or 
according to such other schedule as it deems just.

(iii)  Shall  not  order  incarceration  of  a  defendant  for  failure  to  pay 
restitution if the failure results from the offender’s inability to pay.

(iv)  Shall  consider  any  other  preexisting  orders  imposed  on  the 
defendant, including, but not limited to, orders imposed under this 
title or any other title.

See also

Commonwealth v. Mariani

i.e

18 Pa.C.S.A. § 1106(c)(2).  
Super  2005)(restitution  must  be  imposed  at  sentencing  hearing, 
method of payment). 

 

, 869 A.2d 484, 486 (Pa. 
.,  the  amount  and 

JUDICIAL POLICY:  The 
 
Commonwealth must make 
a recommendation for 
restitution at sentencing

This must be read in conjunction with § 1106(c)(4) which 
requires  the  prosecution  to  make  a  recommendation 
Commonwealth  v.  Ortiz
to  the  Court  “at  or  prior  to  the  time  of  sentencing.”  
,  854  A.2d  1280,  1283  (Pa. 

en banc

Super. 2004)(

). 

 

18 Pa.C.S.A. § 1106(c) specifies the role of the Commonwealth:

(4)  (i)  It  shall  be  the  responsibility  of  the  district  attorneys  of  the 
respective counties to make a recommendation to the court at or prior 
to the time of sentencing as to the amount of restitution to be ordered. 

49      Chapter 2      

Mandatory Restitution at Sentencing

This  recommendation  shall  be  based  upon  information  solicited  by 
the district attorney and received from the victim.

(ii)  Where  the  district  attorney  has  solicited  information  from  the 
victims as provided in subparagraph (i) and has received no response, 
the district attorney shall, based on other available information, make 
a recommendation to the court for restitution.

(iii)  The  district  attorney  may,  as  appropriate,  recommend  to  the 
court that the restitution order be altered or amended as provided in 
paragraph (3).

18 Pa.C.S.A. § 1106(c)(4). 

Unless  the  statute  under  which  a  defendant  is  convicted  contains  a  specific 
 
restitution  provision,  18  Pa.C.S.A.  §  1106(c)(4)  mandates  that  the  Commonwealth  is 
required  to  make  a  recommendation  to  the  court  prior  to  sentencing  concerning  the 
,  970  A.2d  1131, 
amount  of  restitution  to  be  ordered.  
1134 (Pa. 2009).

Commonwealth  v.  Dietrich

  When  the  statute  under  which  a  defendant  is  convicted  does  contain  a  specific 
restitution provision, for example, as in 18 Pa.C.S.A. § 4105(e)
, then there is no need 
for the Commonwealth to make a recommendation to the trial court as is required under 
Section 1106(c)(4).  
B. Causal Connection

, 864 A.2d 566 (Pa. Super. 2004). 

Commonwealth v. Redman

See

22

 

Restitution may be imposed only for those crimes to property or person where the 
 
victim suffered a loss that flows from the conduct that forms the basis of the crime for 
which the defendant is held criminally accountable. 
, 158 
A.3d 671 (Pa. Super. 2017). 

Commonwealth v. Poplawski

Because  restitution  is  a  sentence,  the  amount  ordered  must  be 
supported  by  the  record;  it  may  not  be  speculative  or  excessive. 
The  amount  of a  restitution  order is  limited by  the loss or damages 
sustained as a direct result of defendant’s criminal conduct and by the 
amount supported by the record.

Commonwealth  v.  Dohner,

 725  A.2d  822,  824  (Pa.  Super.  1999) (internal  citations 
Commonwealth   v.   Pappas
and  quotations  omitted).    The  payment  of  restitution  ordered  by  the  court  cannot 
be   in   excess   of   the   damage   caused   by   the   defendant.  
, 
845  A.2d  829, 842 (Pa. Super. 2004).

22  18 Pa.C.S.A.§ 4105(e), Bad Checks, requires that the sentence include an order for the issuer or passer to reimburse the payee the face 
 

To be a valid order of restitution, there must be a causal link between the criminal 

amount of the check. 

50      Chapter 2      

Mandatory Restitution at Sentencing

conviction and the victim’s injuries. There are several statutes that need to be considered.  
In the Crimes Code, Section 1106(a) provides the following:

(a) General rule.--Upon conviction for any crime wherein:

(1) property  of  a  victim  has  been  stolen,  converted  or  otherwise
unlawfully obtained, or its value substantially decreased as a direct
result of the crime; or
(2) the  victim,  if  an  individual,  suffered  personal  injury  directly
resulting from the crime,

the offender shall be sentenced to make restitution in addition to the 
punishment prescribed therefor.

18 Pa.C.S.A. § 1106(a).

the victim:

Section 1106 specifies that restitution should be in relation to the injury suffered by 

(2) At the time of sentencing the court shall specify the amount and
method  of  restitution.  In  determining  the  amount  and  method  of
restitution, the court:

(i) Shall  consider  the  extent  of  injury  suffered  by  the  victim,  the
victim’s request for restitution as presented to the district attorney
in accordance with paragraph (4) and such other matters as it deems
appropriate.

18 Pa.C.S.A. § 1106(c)(2)(i).

Due  to  the  language  “directly  resulting  from  the  crime”  from  Section  1106(a), 
 
Commonwealth v. Harriott,
restitution is proper only if there is a direct causal connection between the crime and the 
loss. 
 919 A.2d 234, 238 (Pa. Super. 2007). The sentencing 
 
 

JUDICIAL POLICY:  Sentencing
court must apply a “but for” test in imposing restitution; damages which occur as a direct 
Court Must Use a “But For” Test 
result of the crimes are those which would not have 
Commonwealth  v.  Muhammed,
in Setting Restitution Amount.
occurred but for the defendant’s criminal conduct. 
Commonwealth  v. 
  219  A.3d  1207, 

Gerulis

1213  (Pa.  Super.  2019)  citing 



, 616 A.2d 686, 697 (Pa. 1992).

Commonwealth  v.  Pappas,

Although  the  sentence  of  restitution  must  be  supported  by  the  record,  a  pre-
sentence  investigation  report,  made  part  of  the  record  at  sentencing,  may
see
be  considered  by  the  sentencing  court  and  used  as  a  basis  for  the  restitution
also
order.   
 

  845  A.2d  829,  842  (Pa.  Super.  2004); 
 690 A.2d 260, 266 (Pa. Super. 1997)(use of pre-

Commonwealth v. Yanoff,

sentence report information by sentencing court was permissible).

51      Chapter 2      

Mandatory Restitution at Sentencing

JUDICIAL POLICY:  Personal Injury = 
 
actual bodily harm.

In reference to personal injuries suffered by the victim, Pennsylvania law indicates 
 
that in determining the amount of restitution the court “[s]hall consider the extent of 
injury  suffered  by  the  victim”  18  Pa.C.S.A.  § 
1106(c)(2)(i),  and  defines  “personal  injury” 
as “[a]ctual bodily harm, including pregnancy, 

directly resulting from the crime,” 18 Pa.C.S.A. § 1106(h).

Commonwealth  v.  Oree

In 

JUDICIAL POLICY:  Restitution for 
 
Personal Injuries Must Reflect Actual 
Bodily Harm Resulting From the Crime.

,  911  A.2d  169  (Pa.  Super.  2006),  the  defendant  was 
 
convicted of simple assault and recklessly endangering another person after he battered 
the  victim,  leaving  the  victim  unconscious.  Immediately  after  the  assault,  the  victim 
required  surgery  because  he  had  fluid  in 
his  brain.    As  a  result,  the  victim  suffered 
an  organic  brain  syndrome  due  to  head 
trauma; he needs to reside at a nursing home 
indefinitely  because  he  is  unable  to  bathe,  dress,  or  care  to  this  personal  needs.  The 
sentencing court ordered restitution in the amount of $1,229,229.09, based upon the 
evidence of the victim’s continued medical and care needs presented at the sentencing 
hearing.  Although it will take the defendant a lifetime to pay the restitution, the Superior 
Court affirmed:   

While we do not doubt defendant’s assertion that he may be making 
restitution payments for the balance of his lifetime since he currently 
earns  only  $2,500.00  per  month  as  a  machine  operator,  we  will  not 
make  the  sweeping  pronouncement  he  seeks.  We  hold  that  the  trial 
court’s imposition of restitution does not constitute per se cruel and 
unusual punishment simply because it may take defendant a lifetime 
to pay. We conclude the trial court properly exercised its authority and 
did not impose restitution which was disproportionate to the injuries 
caused by defendant.

Oree

C. 

, 911 A.2d at 171.
 Method and Payment of Restitution

Both the Crimes Code and the Sentencing Code address the amount and method of 
 
payment of restitution. Section 1106 of the Crimes Code refers only to restitution. The 
Sentencing Code addresses not only restitution, but also reparation, fees, costs, fines and 
penalties.  Review herein is limited to the topic of restitution. With respect to restitution, 
 1 
these statutes should be read in 
Pa.C.S.A. § 1932. 

, as they relate to the same thing.  

pari materia

See

 

Section 1106(c)(2)of the Crimes Code, provides

(2)  At the time of sentencing the court shall specify the amount and 
method  of  restitution.  In  determining  the  amount  and  method  of 

52      Chapter 2      

Mandatory Restitution at Sentencing

restitution, the court:

(i)    Shall  consider  the  extent  of  injury  suffered  by  the  victim,  the 
victim’s request for restitution as presented to the district attorney 
in accordance with paragraph (4) and such other matters as it deems 
appropriate.

(ii)  May order restitution in a lump sum, by monthly installments or 
according to such other schedule as it deems just.

(iii)  Shall not order incarceration of a defendant for failure to pay 
restitution if the failure results from the offender’s inability to pay.

(iv)    Shall  consider  any  other  preexisting  orders  imposed  on  the 
defendant, including, but not limited to, orders imposed under this 
title or any other title. 

18 Pa.C.S.A. § 1106(c)(2).

 

Method and Payment Plans

In  most  cases,  the  court  will  need  to  create  a  payment  plan  for  the  collection  of 

 
restitution. 

  When restitution is imposed as a direct sentence, the court must adopt a method of 
payment on a schedule that the defendant can afford to pay because a defendant cannot 
be incarcerated for the failure to pay restitution if the failure results from the offender’s 
inability to pay:

(iii)  Shall  not  order  incarceration  of  a  defendant  for  failure  to  pay 
restitution if the failure results from the offender’s inability to pay.

and  method

18  Pa.C.S.A.  §  1106(c)(2)(iii).  In  determining  the  amount 
  of  restitution, 
the court may order restitution “in a lump sum, by monthly installments or according to 
such other schedule as it deems just.”  18 Pa.C.S.A. § 1106(c)(2)(ii).

•  Setting  realistic  payment  plans  can  help  avoid  the  need  for  further  court 
proceedings in the future by limiting the risk that the defendant will default.

23

Respecting types of payment, the December 2019 amendments to Section 9730 of the 
Sentencing Code,
 now provide that, in addition to court costs and fines, the treasurer 
restitution
of  each  county  may  allow  the  use  of  credit  cards  and  bank  cards  for  the  payment  of 
  and  may  provide  for  automatic  periodic  deductions  from  a  bank  account, 

23   Act of December 18, 2019, P.L. 776, No. 115. 
subject to the agreement of the owner of the account.  42 Pa.C.S.A. § 9730. 

53      Chapter 2      

Mandatory Restitution at Sentencing

24

JUDICIAL POLICY:  Restitution to be 
 
paid to Probation Department or other 
designated agent.

  it  is  to  be  made  by  the  offender  to  the 
  When  restitution  is  ordered  by  a  judge,
probation section of the county in which he was convicted or to another agent designated 
by that county’s commissioners with the approval of the president judge of the county 
to  collect  restitution  according  to  the  court  order.  18  Pa.C.S.A.  §  1106(e).    Consistent 
with  this,  section  9728(a)(1)
of  the 
Sentencing Code provides that all restitution 
shall  be  collected  by  the  county  probation 
department or other agent designated by the 
county  commissioners  of  the  county  with  the  approval  of  the  president  judge  of  that 
county for that purpose and in any manner provided by law. The payment handoff to 
the county probation department or other agent is an essential step to the docketing 
of a defendant’s restitution order as a judgment and how restitution is to be made and 
collected. 

 

25

JUDICIAL POLICY:  Restitution 
 
order to be docketed as a judgment 
in Prothonotary office.

Once a court orders that restitution be made, the county clerk of courts shall, upon 
 
sentencing, transmit to the prothonotary certified copies of all judgments for restitution, 
reparation,  fees,  costs,  fines  and  penalties  which,  in  the  aggregate,  exceed  $1000.  42 
Pa.C.S.A. § 9728(b)(1). Each prothonotary then 
is  to  enter  and  docket  the  same  of  record  in 
his office and to index the same as judgments 
.  When  the  aggregate  of 
are  indexed. 
these amounts does not exceed $1000, the clerk of courts, in consultation with other 
appropriate government agencies, 
 transmit to the prothonotary certified copies of 
all judgments to have the same indexed in the prothonotary’s office as judgments.  42 
Pa.C.S.A. § 9728(b)(2).
D.  Enforceability of Restitution Payments

may

Id

 

 

Restitution Entered as a Judgment

JUDICIAL POLICY:  Sentencing Court 
 
may take action to preserve property 
available to satisfy restitution amount.

 
The total amount for which a person is liable under Section 9728 may be entered as a 
judgment upon the person or property of the person sentenced or ordered, regardless of 
whether the amount has been ordered to be paid in installments.  42 Pa.C.S.A. § 9728(b)
(4).    A  court  also,  upon  application  by  the 
Commonwealth,  may  enter  a  restraining 
order or injunction, require the execution of 
a satisfactory performance bond, or take any 
other action to preserve the availability of property which may be necessary to satisfy 
an anticipated restitution order. 42 Pa.C.S.A. § 9728(e).  

24   Restitution ordered by a magistrate judge is subject to jurisdictional limitations.  See 18 Pa.C.S.A. § 1106(d).
25  Section 9728 of the Sentencing Code, 42 Pa.C.S.A. § 9728, most recently was amended by the act of December 18, 2019, P.L. 776, No. 115. 
In particular, Sections (a)(2) and (b)(5) were amended to require a private or county collection agency, to require statistical information 
be provided to the Pennsylvania Commission on Sentencing, and to more particularly detail how deductions may be made from an 
inmate’s wages and personal accounts.

54      Chapter 2      

Mandatory Restitution at Sentencing

may  exceed
 

JUDICIAL POLICY:  An order for 
 
Restitution enforceable beyond 
maximum term of imprisonment.

Importantly,  the  period  of  time  during  which  judgments  shall  have  full  effect 
  the  maximum  term  of  imprisonment  to  which  the  offender  could  have 
been  sentenced  for  crimes  of  which  he 
was  convicted  or  the  maximum  term  of 
confinement  to  which  the  offender  was 
committed.  42 Pa.C.S.A. § 9728(c).

Period  of  time.

(a) 
--Notwithstanding  section  6353  (relating  to 
limitation  on  and  change  in  place  of  commitment)  or  18  Pa.C.S.  § 
1106(c)(2) (relating to restitution for injuries to person or property), 
the period of time during which such judgments shall have full effect 
may exceed the maximum term of imprisonment to which the offender 
could have been sentenced for the crimes of which he was convicted 
or  the  maximum  term  of  confinement  to  which  the  offender  was 
committed.

42 Pa.C.S.A. § 9728(c).

 

Term of Enforceability of Restitution Order

It also is the case since the 1998 amendments to Section 1106(c)(2)(ii)

 that an
 
 order of restitution is enforceable until paid, regardless of whether the maximum term
 of imprisonment for which a defendant could have been sentenced has expired. 

Commonwealth  v.  Griffiths,



26

 

 

Commonwealth  v.  Luper,

  15  A.3d  73  (Pa.  Super.  2010)(construing  18 
Cf.
Pa.C.S.A.  §  1106(c)(2)(ii)  -  an  order  of  restitution  is  enforceable  until  paid).  
  745  A.2d  1248  (Pa.  Super.  2000)(construing 
precursor  to  section  1106(c)(2)(ii)  -  a  court’s  ability  to  enforce  payment  of 
restitution  cannot  exceed  the  maximum  term  of  imprisonment  to  which  a 
defendant could have been sentenced).   

Commonwealth  v.  Karth

It  is  important  to  recognize  that  enforcement  of  a  restitution  order  beyond  the 
 
maximum term for which a defendant could have been sentenced only applies where 
restitution is ordered as a part of a sentence under section 1106, and not as a condition 
Id.
,  994  A.2d  606  (Pa.  Super. 
of  probation  under  Section  9754. 
2010). Section 9728 specifically addresses “a sentence... for restitution.” 
 It does not 
address restitution imposed as a condition of probation. Thus, Section 9728 only applies 
to the collection of restitution imposed as part of a direct sentence, not as a condition of 
probation.  

Id

.

 

Failure or Default in Restitution Payments

Both  Section  1106(f)  of  the  Crimes  Code  and  Section  9730(b)  of  the  Sentencing
 
26   Act of December 3, 1998, P.L. 933, No. 121. 
  Code  address  a  defendant’s  failure  or  default  to  make  restitution  payments.    Section
 
55      Chapter 2      

Mandatory Restitution at Sentencing

1106(f) provides

(f) 

 

  Noncompliance  with  restitution  order.

--Whenever  the 
offender  shall  fail  to  make  restitution  as  provided  in  the  order  of  a 
judge, the probation section or other agent designated by the county 
commissioners of the county with the approval of the president judge 
to collect restitution shall notify the court within 20 days of such failure. 
Whenever the offender shall fail to make restitution within 20 days to 
a magisterial district judge, as ordered, the magisterial district judge 
shall  declare  the  offender  in  contempt  and  forward  the  case  to  the 
court of common pleas. Upon such notice of failure to make restitution, 
or upon receipt of the contempt decision from a magisterial district 
judge, the court shall order a hearing to determine if the offender is in 
contempt of court or has violated his probation or parole.

18 Pa.C.S.A. § 1106(f).  This provision addresses noncompliance with restitution orders 
before both a magisterial district court and a common pleas court.   

 

Default from MDJ Order of Restitution

  While cases involving restitution before magisterial district judges (“MDJ”) are rare, 
MDJs have jurisdiction to enter orders in cases involving summary offenses or certain 
misdemeanors of the third-degree where the amount of restitution is less than $500.  
42 Pa.C.S.A. § 1515(a)(1) and 6(i). However, Section 1106 applies only to “crimes,” not 
  Thus, courts of 
summary offenses, which are treated differently in the Crimes Code.
common pleas only pursue the nonpayment of restitution arising from cases where the 
MDJ sentenced a defendant in a third-degree misdemeanor. 

27

Restitution in summary offenses is governed by a combination of Pa.R.Crim.P. 456 
 
and 42 Pa.C.S.A. § 9730. In short, Rule 456 sets forth the basic procedural requirements 
that  govern  contempt  proceedings  for  nonpayment  of  fines,  costs,  and  restitution. 
Because  the  relevant  statutory  and  constitutional  provisions  are  the  same  as  for 
contempt proceedings involving court of common pleas proceedings, they are discussed 
at length below. 

 

Default from Trial Court Order of Restitution

  When a common pleas court receives notice from a probation office that an offender 
has failed to make restitution, Section 1106(f) requires that the court order a hearing 
to determine if the defendant “is in contempt of court or has violated his probation or 
parole.” Such a proceeding is governed by both statutory and constitutional requirements. 
Section 9730(b) of the Sentencing Code, as amended in December 2019, provides the 
27  18 Pa.C.S.A. § 1106(a) specifies that it applies only “upon conviction for any crime.” The definitions in 18 Pa.C.S.A. § 106(c), in turn, 
basic procedural framework for this contempt hearing, as well as the court’s options:
 

explain that “summary offenses” are not “crimes.”  

56      Chapter 2      

Mandatory Restitution at Sentencing

(b)  Procedures regarding default.--

restitution

(1)  If a defendant defaults in the payment of court costs, 
 
or fines after imposition of sentence, the issuing authority or a senior 
judge or senior magisterial district judge appointed by the president 
judge  for  the  purposes  of  this  section  may  conduct  a  hearing  to 
determine whether the defendant is financially able to pay. 

restitution

(2)  If the issuing authority, senior judge or senior magisterial district 
judge  determines  that  the  defendant  is  financially  able  to  pay  the 
 or fine, the issuing authority, senior judge or senior 
costs, 
magisterial  district  judge  may  enter  an  order  for  wage  attachment, 
turn  the  delinquent  account  over  to  a  private  collection  agency  or 
impose imprisonment for nonpayment, as provided by law. 

restitution

restitution

(3)    If  the  issuing  authority,  senior  judge  or  senior  magisterial 
district judge determines that the defendant is without the financial 
 or fine immediately or in a single 
means to pay the costs, 
remittance,  the  issuing  authority,  senior  judge  or  senior  magisterial 
district judge may provide for payment in installments. In determining 
the  appropriate  installments,  the  issuing  authority,  senior  judge 
or  senior  magisterial  district  judge  shall  consider  the  defendant’s 
financial  resources,  the  defendant’s  ability  to  make 
  and 
reparations and the nature of the burden the payment will impose on 
the defendant. If the defendant is in default of a payment or advises 
the issuing authority, senior judge or senior magisterial district judge 
that default is imminent, the issuing authority, senior judge or senior 
magisterial  district  judge  may  schedule  a  rehearing  on  the  payment 
schedule.  At  the  rehearing  the  defendant  has  the  burden  of  proving 
changes of financial condition such that the defendant is without the 
means  to  meet  the  payment  schedule.  The  issuing  authority,  senior 
judge  or  senior  magisterial  district  judge  may  extend  or  accelerate 
the schedule, leave it unaltered or sentence the defendant to a period 
of community service as the issuing authority, senior judge or senior 
magisterial  district  judge  finds  to  be  just  and  practicable  under  the 
circumstances. 

(4)    A  decision  of  the  issuing  authority,  senior  judge  or  senior 
magisterial  district  judge  under  paragraph  (2)  or  (3)  is  subject  to 
section 5105 (relating to right to appellate review). 

42 Pa.C.S.A. § 9730(b) (emphasis added).   

In short, the court must hold a hearing, and it must do so each time the defendant 

 
appears before it for nonpayment:
57      Chapter 2      

Mandatory Restitution at Sentencing

Judges  must  hold  separate  hearings  for  each  alleged  contemnor  to 
ascertain  whether  any  noncompliance  flowed  from  (a)  deliberate 
disregard  of  the  court’s  order  or  (b)  circumstances  beyond  the 
defendant’s control. This must be done every time someone appears 
or  reappears  for  a  costs-and-fines  proceeding,  because  the  person’s 
financial situations may have changed since the last time she or he was 
before the court.
Commonwealth v. Mauk,

 

 185 A.3d 406, 411 (Pa. Super. 2018).

As stated above, if the court determines that the defendant is able to pay, then the 
 
court may enter an order for wage attachment, turn the delinquent account over to a 
private  collection  agency,  or  impose  imprisonment  for  nonpayment  “as  provided  by 
law.” 42 Pa.C.S.A. § 9730(b)(2). 

The hearing contemplated under Section 9730(b) may be conducted by the court, or by 
a senior judge or senior magisterial district judge appointed by the president judge of 
the court.  In many respects the sanctions or remedies available to a court are similar to 
those that may be considered by an issuing authority under Rule 456.  


 

 





If the court determines that the defendant is financially able to pay the restitution, 
the court may enter an order for wage attachment, turn the delinquent account over 
to a private collection agency or impose imprisonment for nonpayment, as provided 
by law.  

If the court determines a defendant is without the financial means to pay restitution 
immediately  or  in  a  single  remittance,  the  court  may  provide  for  payment  in 
installments with due consideration for a defendant’s ability to make payments and 
the burden payments may impose on the defendant.  

  Where a defendant is in default of a payment or advises that default is imminent, 
the  court  may  schedule  a  rehearing  on  the  payment  schedule,  at  which  time  the 
defendant  has  the  burden  of  proving  changes  of  financial  condition  such  that  he 
is without the means to meet the payment schedule.  If the defendant satisfies the 
burden  of  proof,  then  the  court  may  extend  or  accelerate  the  schedule,  leave  it 
unaltered, or sentence the defendant to a period of community service as is just and 
practical under the circumstances.

  While a court is not mandated to order imprisonment for failure to pay restitution 
when it is determined that a defendant is financially able to pay, it also is the case that a 
Commonwealth 
court may not imprison a person for nonpayment without a public hearing as required 
v. Smetana
under Section 9730(b)(1). 

 42 Pa.C.S.A. 9730(b)(1) and § 9730.1(d); 

 See

, 191 A.3d 867 (Pa. Super. 2018). 

58      Chapter 2      

Mandatory Restitution at Sentencing

 

Contempt Proceedings

Contempt proceedings may be either civil or criminal in nature, and the court should 

 
determine at the start which method it is using. 

•  Civil  Contempt:  If  the  court  will  issue  an  order  designed  to  compel  payment, 
  Bruzzi  v. 
and  the  court  sets  certain  conditions  by  which  the  defendant  can  “purge”  the 
Bruzzi
contempt  and  escape  punishment,  it  is  a  civil  contempt  proceeding.

,  481  A.2d  648,  652  (Pa.  Super.  1984).  “If  the  dominant  purpose  of  the 
Commonwealth  v.  Pruitt
court is to prospectively coerce the contemnor into compliance with the court’s 
, 
directive,  the  adjudication  is  one  of  civil  contempt.” 
764 A.2d 569, 574 (Pa. Super. 2000).  The purge amount set by the court must be 
within the present ability of the defendant to comply, and the court must make 
that finding beyond a reasonable doubt. 
, 368 A.2d 616, 621 
(Pa. 1977); 

, 868 A.2d 601, 606 (Pa. Super. 2005).

Barrett v. Barrett

Hyle v. Hyle

•  Criminal  Contempt:  If  the  court  issues  an  order  punishing  the  defendant  for 
Commonwealth 
failing to comply with the court’s past order, and the defendant is not given any 
v. Pruitt
way to escape punishment, it is a criminal contempt proceeding. 

, 764 A.2d 569, 574 (Pa. Super. 2000).  When the court’s purpose is to 
vindicate the dignity and authority of the trial court, to protect the interest of the 
Commonwealth  v.  Charlett
general public, and the sanction imposed is designed to punish the contemnor, 
then  the  citation  is  one  for  criminal  contempt. 
, 
Commonwealth v. 
391 A.2d 1296, 1298–99 (Pa. 1978).  Indirect criminal contempt is a violation 
McMullen
of a court order that occurred outside the court’s presence. 

, 961 A.2d 842, 849 (Pa. 2008).  To prove indirect criminal contempt, 
evidence  must  be  sufficient  to  establish:  the  court’s  order  was  definite,  clear, 
specific,  and  leaving  no  doubt  in  the  person  to  whom  it  was  addressed  of  the 
conduct prohibited; the contemnor had notice of the order; the act constituting 
Commonwealth v. Baker
the  violation  was  volitional;  and  the  contemnor  acted  with  wrongful  intent. 
, 766 A.2d 328, 331 (Pa. 2001).

 In re Cullen
with

The  procedural  requirements,  and  the  burden  of  proof,  differ  based  on  the  type  of 
Commonwealth v. Baker
, 849 A.2d 1207, 1211 (Pa. Super. 2004) (explaining the 
contempt. Compare
, 722 A.2d 718, 721 (Pa. Super. 
 
elements of civil contempt) 
1998) (

) (criminal contempt). 

en banc

Commonwealth 
There is a right to counsel in all cases of criminal contempt, and a right to counsel in 
Commonwealth v. Ashton

 
v. Diaz
all cases of civil contempt where there is “a likelihood of imprisonment.” 

, 191 A.3d 850, 862 (Pa. Super. 2018) (civil contempt); 

, 
Commonwealth v. 
824 A.2d 1198, 1203 (Pa. Super. 2003) (criminal contempt). The defendant must have 
Mauk
a “timely opportunity to consult with counsel” prior to the hearing. 

, 185 A.3d 406, 412 (Pa. Super. 2018). 

59      Chapter 2      

Mandatory Restitution at Sentencing

The  Order  for  Restitution  must  be  clear  and  definite.  The  court  order  that  the
 
In  re
  defendant  is  alleged  to  have  violated  must  be  “definite,  clear,  and  specific-leaving  no
  Cullen
  doubt  or  uncertainty  in  the  mind  of  the  contemnor  of  the  prohibited  conduct.” 

, 849 A.2d 1207, 1210 (Pa. Super. 2004).  

 

Incarceration for Failure to Pay Restitution

The United States Supreme Court has made it clear that, “if the State determines 
 
a fine or restitution to be the appropriate and adequate penalty for the crime, it may 
Bearden v. Georgia
not thereafter imprison a person solely because [s]he lacked the resources to pay it.” 
, 461 U.S. 660, 667-68 (1983). “Process is due in all costs-and-fines 
proceedings . . . [A] court may not constitutionally imprison someone for nonpayment 
Commonwealth 
of court costs and fines alone. Instead, it must be proved that the person has willfully 
v. Mauk
refused to pay the fine or restitution when he has the means to pay ....” 

, 185 A.3d 406, 411 (Pa. Super. 2018).

E.  Payments During Incarceration

 
Both  the  Department  of  Corrections  and  county  prisons  automatically  deduct 
restitution  from  an  inmate’s  account.  Section  9728(b)(5) of  the  Sentencing  Code  was 
amended as of December 2019 to expand the scope of these inmate deductions.

(b)  Procedure.--

* * *

(5)  Deductions shall be as follows:

   

Department  of  Corrections

at  least  25%

  shall  make  monetary 
(i)    The 
deductions  of 
  of  deposits  made  to  inmate  wages 
and  personal  accounts  for  the  purpose  of  collecting  restitution, 
costs  imposed  under  section  9721(c.1)  [mandatory  payment  of 
costs], filing fees to be collected under section 6602(c) (relating 
to prisoner filing fees) and any other court-ordered obligation. 

county correctional facility

(ii)  The 
been sentenced shall:

 to which the offender has 

(A)  Be authorized to make monetary deductions from   inmate 
wages and personal accounts for the purpose of  c o l l e c t i n g 
restitution, costs imposed under section 9721(c.1), filing fees to 
be collected under section 6602(c) and any other court-ordered 
obligation or fees owed to the county jail or prison related to the 
inmate’s incarceration. 

60      Chapter 2      

Mandatory Restitution at Sentencing

(B)  Deduct an amount sufficient to satisfy any   o u t s t a n d i n g 
restitution, costs imposed under section   9721(c.1)[mandatory 
payment  of  costs],  filing  fees  to  be  collected  under  section 
6602(c)  or  other  court-ordered  obligations  before  releasing 
funds on deposit. 

(iii)    Any  amount  deducted  under  this  paragraph  shall  be  in 
addition to the full amount authorized to be collected pursuant to 
any order for support. Any amount deducted shall be transmitted 
to  the  probation  department  of  the  county  or  other  agent 
designated by the county commissioners with the approval of the 
president judge of the county in which the offender was convicted. 

(iv)  The Department of Corrections and each county correctional 
facility  shall  develop  guidelines  relating  to  its  responsibilities 
under this paragraph. The guidelines shall  be incorporated into 
any contract entered into with a correctional facility.

JUDICIAL POLICY:  Deductions from an 
 
inmate’s wages and personal accounts 
must be at least 25% for restitution.

42  Pa.C.S.A.  §  9728  (emphasis  added).    Prior  to  the  December  2019  amendments  to 
Section  9728,  the  Department  of  Corrections  and  county  correctional  facilities  were 
treated the same for purposes of making deductions and transmitting amounts under this 
subsection. As amended, the legislature now has seen fit to require that the Department 
of  Corrections  deduct  at  least  25%  of  an 
inmate’s  wages  and  personal  accounts  for 
purposes  of  the  amounts  owed,  and  with 
respect  to  county  correctional  facilities,  to 
authorize monetary deductions to fully satisfy any amounts owed in addition to any to 
 than 50% 
be collected for support. In addition, section 9728(g.1) provides that 
of all monies collected by a county probation department or other agency shall be used 
to pay restitution to victims until satisfaction of the defendant’s restitution obligation, 
although  a  sentencing  court  can  specify  a  higher  amount  if  it  wishes  to  prioritize 
payments of restitution. 42 Pa.C.S.A. § 9728(g.1). 

no less

 

JUDICIAL POLICY:  Deductions from an 
 
inmate’s wages and personal accounts 
do not require a separate hearing.

Deductions  by  the  Department  of  Corrections  from  a  prison  inmate’s  account  to 
pay  fines,  costs  or  restitution  are  lawful 
pursuant to statute and do not require prior 
proof  of  an  inmate’s  ability  to  pay,  and  do 
Buck v. Beard
not  require  any  additional  hearing  beyond 
, 879 A.2d 157 
,  831 

that which occurred at the original sentencing proceeding.  
(Pa.  2005), 
A.2d 597 (Pa. 2003).
F.  Relevance of a Jury’s Verdict

,  824  A.2d  393  (Pa.  Cmwlth.  2003), 

George  v.  Beard

aff’d  per  curiam

 
61      Chapter 2      

A jury’s decisions in setting the amount of restitution sometimes plays a role in the 

Mandatory Restitution at Sentencing

sentencing court’s determination of full restitution. When a victim suffers a loss directly 
resulting from a defendant’s crime, the Sentencing Code provides that a court shall order 
full restitution to a victim, regardless of the current financial resources of a defendant so 
as to provide a victim with the fullest compensation for a loss. 18 Pa.C.S.A. § 1106(c).  

	
“A	 sentence	 imposing	 restitution	 is	 not	 an	 award	 of	 damages…. 	 Restitution	 for	
injuries to a person or property is authorized by statute ‘in addition to the punishment 
, 722 A.2d 157 (Pa. Super. 
prescribed’ for the crime at issue.”  
1998).  

Commonwealth v. Wright

Wright

  Therefore, it was held in 

 that an order of restitution, supported by the 
record,  for  property  damage  resulting  directly  from  a  defendant’s  criminal 
conduct in the amount of $20,745.82, was not an abuse of the court’s discretion, 
even though the misdemeanor crimes for which the defendant was convicted 
only  required  that  the  jury  determine  the  loss  to  be  more  than  $1,000.00, 
but	 less	 than	 $5,000.00.	  	 Once	 a	 defendant	 has	 been	 convicted	 of	 a	 crime	
resulting in a direct loss to a victim, a restitution award is to be made without 
consideration of the underlying conviction, since the purpose of restitution is 
to make the victim whole.

Wright

 



 

, the victim suffered damages to crops and two pieces of farm 
In 
equipment as a direct result of the criminal conduct.  However, at the time 
of trial, only one of the pieces of farm equipment had estimates and repair 
bills available for evidence.  Accordingly, the jury only had before it the loss 
of  the  single  piece  of  farm  equipment.  After  the  defendant’s  conviction, 
and at the time of sentencing, the prosecution presented evidence of the 
repair costs of the other piece of equipment.  Therefore, because the victim 
had now provided, and the Commonwealth moved into evidence, the total 
damages for both pieces of equipment, the trial court ordered restitution 
in this total amount. The Superior Court affirmed, holding that although 
the jury had made a determination for grading purposes, the sentencing 
court could award restitution beyond that amount because the record, at 
the time of sentencing, supported the order.
Wright

Commonwealth v. Poplawski,

Poplawski

Wright

 was distinguished in 

 158 A.3d 671 
(Pa. Super. 2017).  In 
, the jury had all of the necessary evidence 
before it at the time of trial.  Therefore, the sentencing court was bound 
to honor the jury’s determination.  “Absent circumstances such as those 
, the court may not go beyond the jury’s verdict in fashioning its 
in 
restitution award.”  

, 158 A.3d at 675. 

Poplawski

G.  Civil Remedies and Discharge

 

Discharge of Restitution Order

62      Chapter 2      

Mandatory Restitution at Sentencing

C

ommonwealth v. Holmes

In 

 
, 155 A.3d 69 (Pa. Super. 2018), the Superior Court had 
occasion to discuss the difference in discharge between an order of restitution under 
Section 1106(a) and an order providing for restitution as a condition of probation under 
Section 9754.  As explained, an order of restitution for losses resulting directly from a 
defendant’s criminal conduct under Section 1106(a) is not discharged until paid in full, 
whereas any unpaid restitution ordered as a condition of probation is discharged upon 
completion of probation.  The Court stated  

  Harner,

When a victim suffers injury to person or property, a sentencing court 
is  mandated  under  Section  1106(a)  to  enter  an  order  of  restitution. 
Restitution  under  Section  1106(a),  as  part  of  a  sentence,  is  penal 
in  character  and  is  imposed  for  losses  for  which  a  defendant  has 
been  held  criminally  accountable.
  617  A.2d  at  706.  When 
restitution  is  issued  under  Section  1106(a),  a  sentencing  court  is 
obligated  to  order  full  restitution  regardless  of  the  current  financial 
resources of a defendant. 18 Pa.C.S.A. § 1106(c)(1)(i). Once an order 
of restitution has been made as part of a defendant’s sentence under 
Section 1106(a), it is enforceable until paid. 18 Pa.C.S.A. § 1106(c)(2)
(ii); 

,15 A.3d 73, 75 (Pa. Super. 2010).

Commonwealth v. Griffiths

In contrast, restitution may be ordered under Section 9754(c)(8) as 
a condition of probation. 42 Pa.C.S.A. § 9754(c)(8). When ordered as 
a  condition  of  probation  a  court  may  order  a  defendant  “[t]o  make 
restitution  of  the  fruits  of  his  crime  or  to  make  reparations,  in  an 
Id.
amount he can afford to pay, for the loss or damage caused thereby.” 
  Unlike  restitution  under  Section  1106(a)  that  serves  a  punitive 
purpose, restitution ordered as a condition of probation under Section 
9754(c)(8)  is  primarily  aimed  at  rehabilitating  and  integrating  a 
defendant  into  society  as  a  law-abiding  citizen  and  is  deemed  a 
Hall, supra
  617  A.2d  at  706; 
constructive  alternative  to  imprisonment. 
. Additionally, a sentencing court, when ordering restitution 
under  Section  9754(c)(8),  also  must  determine  what  amount  of 
Harner,
restitution  a  defendant  can  afford  to  pay,  and  how  the  restitution  is 
to be paid. 
 617 A.2d at 707. Unlike restitution under Section 
1106(a),  the  obligation  to  pay  restitution  under  Section  9754(c)
(8), as a condition of probation, expires upon the end of the term of 
probation, even if the amount of restitution ordered has not been paid 
, 994 A.2d 606, 610 (Pa. Super. 2010).
in full. 

 Commonwealth v. Karth

Harner,

Holmes

, 155 A.3d at 86. 

 

Civil Remedy Available to Victim

It must be remembered that orders of restitution are part of the criminal sentencing 
 
process.  This  is  distinct  from  remedies  which  a  victim  may  pursue  civilly  at  law.    A 
63      Chapter 2      

Mandatory Restitution at Sentencing

judgment  or  order  of  restitution  does  not  bar  the  victim,  by  way  of  appropriate  civil 
action, to recover from the offender for property or personal injury damages, provided, 
however,  that any civil award will be reduced by the amount paid under the criminal 
judgment.(g)  Preservation  of  private  remedies

.--No  judgment  or  order  of 
restitution  shall  debar  the  victim,  by  appropriate  action,  to  recover 
from  the  offender  as  otherwise  provided  by  law,  provided  that  any 
civil award shall be reduced by the amount paid under the criminal 
judgment.

18 Pa.C.S.A. § 1106(g).

 

Victim’s Insurance 

A victim is entitled to restitution regardless of whether the victim has submitted an 

 
insurance claim or has been partially or fully reimbursed by the victim’s insurer. 

[A] defendant, as part of a sentencing scheme, can be directed to make 
restitution to a victim injured by the defendant’s conduct, even though 
the victim has already been paid through a civil settlement or when 
the victim receives compensation from the victim’s insurer for the loss 
sustained.

Brethren Mut. Ins. Co. v. McKernan

, 961 A.2d 205, 209 n. 12 (Pa. Super. 2008).

 

Defendant’s Insurance

Pennsylvania courts have held that Pennsylvania public policy prohibits insurance 
 
Darwin Nat’l Assurance Co. v. Luzerne Cty. Transp. Auth., 
McKernan
coverage  for  an  order  of  restitution  imposed  pursuant  to  a  criminal  conviction.  

, 961 A.2d at 206; 

CV 3:14-2417, 2016 WL 1242283, at *8 (M.D. Pa. Mar. 30, 2016). This does not bar the 
victim from commencing a civil action against the defendant due to property or personal 
injury damage.   
H.  Payments from Victims Compensation Assistance Program

 

The following information is from the Pennsylvania Office of Victim’s Services:

A victim of a crime may be entitled to receive compensation from the Pennsylvania 
Victims Compensation Assistance Program.  A victim is eligible if:

•  The crime occurred in Pennsylvania,
•  The crime was reported to the proper authorities within 3 days or a Protection 

From Abuse order was filed within 3 days of the crime,

64      Chapter 2      

Mandatory Restitution at Sentencing

•  The  victim  cooperated  with  law  enforcement  authorities  investigating  the 
crime,  the  courts,  and  the  Victims  Compensation  Assistance  Program  in 
processing the claim,

•  The claim is filed within 2 years after the discovery of the crime (there are 

exceptions when the victim is a child,

•  The victim has paid or owes at least $100 of any combination of the expenses 
listed  below.    If  the  victim  is  age  60  or  over,  there  is  no  minimum  loss 
requirement. 

●
●
●
●
●
●

●
●
●
●
●

 
 Medical Expenses 
 
 Counseling Expenses 
 
 Loss of Earnings   
 
 Loss of Support 
 
 Funeral Expenses 
 
 Stolen Cash (restricted to certain types of income)

 Transportation Expenses
 Childcare
 Home Healthcare Expenses
 Relocation Expenses
Crime-Scene Cleanup

  The program does not cover (1) pain and suffering, and (2) stolen or damaged 
property (except replacement of stolen or damaged medical equipment).  

  The website to file a form is www.dave.state.pa.us/daveprod.

VII. STANDARD OF REVIEW UPON APPEAL

authority to impose restitution

A  challenge  to  the  trial  court’s  imposition  of  restitution  falls  into  one  of  two 
 
categories: a legality challenge or a discretionary challenge. The appellate courts have 
drawn  a  distinction  between  those  cases  where  the  challenge  is  directed  to  the  trial 
 (legal challenge) and those cases where the 
court’s 
challenge is premised upon a claim that 
  (challenge 
to discretionary aspects of sentence).

the restitution order is excessive

Legality Challenge of Restitution Order 

– challenge directed to the 
trial court’s statutory authority to impose restitution, - considered a 
challenge to the legality of the sentence.

Commonwealth v. Gentry,

A challenge to a court’s authority to impose restitution is generally considered to 
 
be a challenge to the legality of the sentence. 
 101 A.3d 813 
(Pa. Super. 2014). These challengers include when there is an appeal on the basis that 
the restitution order is unsupported by the record, or inapplicable to a certain crime.  It 
is well-settled that “[i]f no statutory authorization exists for a particular sentence, that 
sentence is illegal  and subject  to correction.” 
, 95 A.3d 913, 
915 (Pa. Super. 2014) (citation omitted). 

Commonwealth v. Rivera

In a recent decision, the Pennsylvania Supreme Court fully explained the differences 
 
in an appeal involving restitution and the challenge to a sentence which sounds in legality 
65      Chapter 2      

Mandatory Restitution at Sentencing

or the discretionary aspects of the sentence of the sentence and the issue preservation 
implications of those determinations. In 
, --- A.3d ---, 2020 WL 
5822534 (Pa. Oct. 1, 2020), the Supreme Court stated, in reference to a legality challenge:

Commonwealth v. Weir

In the context of issue preservation principles, Section 1106 requires 
an  integrated  analysis  of  its  relevant  provisions.  Section  1106(a) 
is  mandatory  in  its  directive  and  removes  any  discretion  from  the 
sentencing court to impose restitution as punishment upon conviction 
of a crime under two circumstances: where the property of a victim 
has  been  stolen,  converted  or  otherwise  unlawfully  obtained  or  its 
value has been substantially decreased as a direct consequence of the 
crime, 18 Pa.C.S.A. § 1106(a)(1), or where the victim, if an individual, 
suffered  personal  injury  resulting  from  the  crime,    18  Pa.C.S.A.  § 
1106(a)(2).  Thus,  the  failure  of  a  trial  court  to  impose  restitution 
where the circumstances described in Section 1106(a)(1) or (2) are 
established results in an illegal sentence. Conversely, and as relevant 
to  a  defendant’s  challenge,  if  the  statutory  circumstances  are  not 
established and the sentencing court orders restitution, the challenge 
to  the  sentence  implicates  its  legality.  In  either  of  these  sentencing 
scenarios,  a  challenge  to  the  sentence  of  restitution  need  not  be 
preserved.

 2020 WL 5822534 at *10.

Commonwealth  v.  Gentry

Commonwealth v. Weir,

“An  illegal  sentence  must  be  vacated.” 

,  101  A.3d  813,
 
de novo
 817   (Pa.  Super.  2014).  Issues  relating  to  the  legality  of  a  sentence  are  questions  of 
law; as a  result, the appellate standard of review over such questions is 
 and the 
, 189 A.3d 994, 1000 
appellate  scope of review is plenary. 
(Pa. Super. 2018).
Commonwealth v. Wolfe

Commonwealth v. Golson

See

 

Challenges to the legality of a sentence are non-waivable. 

 
, 
140 A.3d 651, 660 (Pa. 2016). Generally, an appellant cannot raise new legal theories 
for the first time on appeal. Pa.R.A.P. 302(a); 
, 36 A.3d 592, 
598  (Pa.  Super.  2012)  (
).  If  an  appellant’s  claim  presents  a  challenge  to  the 
legality of his sentence, it is not waived, even though raised it for the first time on appeal 
Commonwealth v. Golson
,  151  A.3d  121,  122  (Pa.  2016); 
or  in  the  appellate  brief. 

Commonwealth  v.  Barnes

Commonwealth v. Truong

en  banc

, 189 A.3d 994, 1000 (Pa. Super. 2018).

As  to  a  challenge  to  the  discretionary  aspects  of  a  sentence  which  includes  a 

 
restitution order, the Supreme Court stated:

Moreover,  the  discretionary  nature  of  the  amount  of  restitution 
is  established  in  Section  1106(c)(2),  which  sets  forth  the  factors 
to  be  considered  by  the  sentencing  court  in  fashioning  an  award  of 
restitution:  “...  the  court  shall  consider  the  extent  of  injury  suffered 

66      Chapter 2      

Mandatory Restitution at Sentencing

by the victim, the victim’s request for restitution as presented to the 
district attorney ... and such other matters as it deems appropriate.” 
18 Pa.C.S. § 1106(c)(2)(i). This language, placing the determination of 
the amount of restitution under the sentencing court’s consideration 
based on the stated factors and “other matters it deems appropriate,” is 
the clearest possible indication of the General Assembly’s recognition 
that fashioning the restitution order remained in the exercise of the 
sentencing  court’s  discretion.  [An  appellant’s]  discontent  with  the 
amount  of  restitution  and  the  evidence  supporting  it  is  a  challenge 
to the sentencing court’s exercise of discretion, not to the legality of 
the sentence. To access review of his challenge by the Superior Court, 
[an appellant is] required to file a Pa.R.A.P 2119(f) statement in his 
appellate brief.
Commonwealth v. Weir

Discretionary Appeal from Restitution Order 

, 2020 WL 5822534 at *11.

– challenge directed at 
the amount of the restitution order under the circumstances presented 
to the trial court - considered a challenge to the discretionary aspects 
of the sentence

Commonwealth v. Oree

If the challenge is based on excessiveness, it concerns the discretionary aspects of 

, 911 A.2d 169 (Pa. Super. 2006). 

 
the sentence. 

[T]he appellate courts have drawn a distinction between those cases 
where the challenge is directed to the trial court’s authority to impose 
restitution  and  those  cases  where  the  challenge  is  premised  upon  a 
claim that the restitution order is excessive. When the court’s authority 
to  impose  restitution  is  challenged,  it  concerns  the  legality  of  the 
sentence;  however,  when  the  challenge  is  based  on  excessiveness,  it 
concerns the discretionary aspects of the sentence.

Id.

  at  173.  “[C]hallenges  alleging  that  a  sentence  of  restitution  is  excessive  under  the 
circumstances  have  been  held  by  this  [C]ourt  to  be  challenges  to  the  discretionary 
 666 A.2d 301, 307 (Pa. Super. 1995).
aspects of sentencing.” 

Commonwealth v. Walker,

An  appellant  challenging  the  discretionary  aspects  of  his  sentence  must  invoke 

 
appellate jurisdiction by satisfying a four-part test:

[W]e conduct a four-part analysis to determine: 

(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 
902 and 903; 

(2)  whether  the  issue  was  properly  preserved  at  sentencing  or  in  a 

67      Chapter 2      

Mandatory Restitution at Sentencing

motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; 

(3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that the sentence appealed 
from  is  not  appropriate  under  the  Sentencing  Code,  42  Pa.C.S.A.  § 
9781(b).
Commonwealth v. Moury

, 992 A.2d 62, 170 (Pa. Super. 2010).

The standard of review in an appeal from the discretionary aspects of a sentence is 

 
well settled:

Sentencing is a matter vested in the sound discretion of the sentencing 
judge,  and  a  sentence  will  not  be  disturbed  on  appeal  absent  a 
manifest abuse of discretion. In this context, an abuse of discretion is 
not shown merely by an error in judgment. Rather, the appellant must 
establish, by reference to the record, that the sentencing court ignored 
or misapplied the law, exercised its judgment for reasons of partiality, 
prejudice,  bias  or  ill  will,  or  arrived  at  a  manifestly  unreasonable 
decision.
Commonwealth Antidormi

, 84 A.3d 736, 760 (Pa. Super. 2014)(citation omitted).

68      Chapter 2      

Restitution as a Condition of Probation

Chapter Three

Table of Contents

Restitution as a Condition of Probation

I. GENERALLY .............. ...................................................................................................................3

A. Introductory Note  ........................................................................................................3

B. Introductory Warning  .................................................................................................3

C. Restitution-Creature of Statute  ................................................................................4

a. Restitution as Condition of Probation:  42 Pa.C.S.A. § 9763  ...................4

D. Definitions   ......................................................................................................................5

E. Purposes Served  ...........................................................................................................6

F. Criminal Sanction...........................................................................................................7

G. Construction and Interpretation .............................................................................8

H. Restitution Encouraged ..............................................................................................8

I. Restitution Not Affected by Bankruptcy .................................................................8

J. Differences between Restitution Imposed as Direct Sentence

   and Condition of Probation  ........................................................................................9

1. Mandatory vs. Discretionary .............................................................................9

2. Persons Who May be Subjects of Restitution ............................................10

3. Types of Crimes to which the Statute is Applicable ................................11

4. Nexus between the Damage and the Crime................................................11

a. Examples  ........................................................................................................13

b. Where there is No Proof of Loss or Damage ........................................18

5. Amount of Restitution in Relation to the Loss ..........................................19

6. Determination of the Defendant’s Ability to Pay  ....................................20

7. Expiration of Payment Obligation .................................................................20
8. As a Condition of a Term of Probation .........................................................21

II. PROCEDURE

...................................................................................................................21
 

A. Pennsylvania Rule of Criminal Procedure 705.1 .............................................21

B. Prior Notification .......................................................................................................23

C. Right to Counsel ..........................................................................................................24

D. Restitution Must be Determined by the Trial Court at Sentencing ...........24

1. Generally ...............................................................................................................24

2. Non-Delegation ...................................................................................................25

3. Non-Waivable .......................................................................................................25

1      Chapter 3      

Restitution as a Condition of Probation

III. BURDEN OF PROOF .............................................................................................................26

IV.  TRIAL COURT CONSIDERATIONS ....................................................................................27

   

   

  

 

 

 

 

 

 

 

 

 

A. Direct and Indirect Damages ..................................................................................28

B. Defendant’s Ability to Pay  ......................................................................................28

  

  

  

  

 

 

1. May Not Exceed the Total Amount of Direct and Indirect Damages ..28

2.  May Not Exceed the Defendant’s Ability to Pay ........................................29

a. Sacrifices may be Required .......................................................................30

  

(1) Defendant may be Required to Sell Property  ....................31

C. Determining the Total Amount of Restitution  .................................................31

D. Determining “the details of a payment plan, if any, including 

      

     when payment is to begin” ......................................................................................32

E. Identifying the Payee(s) ...........................................................................................32

F. Declaring “to which officer or agency the restitution payment 

     

    shall be made” ..............................................................................................................33

G. Declaring “whether any restitution has been paid and in what 

    

     amount” 

...................................................................................................................38
 

H. Declaring “whether the restitution has been imposed as a part 

      

     of the sentence and/or as a condition of probation”  .....................................38

V.   STANDARD OF REVIEW UPON APPEAL .........................................................................38

VI.  MODIFICATION   ...................................................................................................................39

VII. REVOCATION PROCEEDINGS-FAILURE TO PAY  ........................................................40

2      Chapter 3      

Restitution as a Condition of Probation

Restitution as a Condition of Probation

Chapter Three

I. GENERALLY

A. Introductory Note

Effective December 18, 2019, the Pennsylvania legislature amended Title 42.  Among 
 
other things, the amendments eliminated state and county intermediate punishments 
as sentencing alternatives and renumbered the section titled “conditions of probation” 
from 42 Pa.C.S.A. § 9754 to 42 Pa.C.S.A. § 9763.  For ease of understanding and for faster 
reference,  within  this  chapter,  we  have  changed  all  instances  of  the  prior  statutory 
numbering to the current numbering. 
B. Introductory Warning

In  cases  where  there  exists  a  statutorily  defined  “victim”  who,  as  a  result  of  the 
 
crime,  suffers  damage  or  injury  to  their  person  or  property,  the  sentencing  court  is 
See
mandated to order restitution under 18 Pa.C.S.A. § 1106 and/or 42 Pa.C.S.A. § 9721(c) – 
any 
regardless of whether the court also sentences the defendant to a term of probation.  
 
crime
18 Pa.C.S.A. § 1106(a) (providing for mandatory restitution “[u]pon conviction for 

[i]n addition to the [sentencing] alternative

 wherein” the stated conditions are met) (emphasis added); 42 Pa.C.S.A. § 9721(c) 
(providing for mandatory restitution “
s 
set forth in subsection (a),” which include a sentence of probation) (emphasis added).  
Full discussion regarding the mandatory restitution provisions of the Crimes Code and 
the Sentencing Code is beyond the scope of this chapter.  We direct the sentencing court 
to review those sections, as well as Chapter Two of this book, case law interpreting those 
sections, and 18 P.S. § 11.103 (defining the term “victim” for purposes of 42 Pa.C.S.A. § 
9721(c) and defining, in part, the term “victim” for purposes of 18 Pa.C.S.A. § 1106), for 
consideration as to whether those statutes are applicable to the facts of the case.  

Commonwealth  v.  Holmes

en banc

en banc

Relatedly,  we  note  that,  in 
), an 

,  155  A.3d  69  (Pa.  Super. 
 
2017) (
 panel of the Superior Court held that a trial court may not 
Holmes
characterize  a  single  restitution  order  as  both  a  direct  sentence  under  18  Pa.C.S.A.  § 
 held that, 
1106 and a condition of probation under 42 Pa.C.S.A. § 9763(b)(10).  
if  restitution  is  mandatory  under  18  Pa.C.S.A.  §  1106,  it  must  be  imposed  under  that 
en banc
section  –  and  not  under  42  Pa.C.S.A.  §  9763(b)(10).   
,  155 
) (opinion in support of affirmance) (“It would 
A.3d 69, 87 (Pa. Super. 2017) (
be  impermissible  for  this  Court  to  interpret  Sections  1106(a)  and  [9763(b)(10)]  in  a 
manner that would create conflicts between these two statutory provisions. . . .  Simply 

Commonwealth  v.  Holmes

3      Chapter 3      

Restitution as a Condition of Probation

put, if restitution must be ordered as part of a sentence under Section 1106(a), it cannot 
Commonwealth  v.  Holmes
at the same time also be ordered merely as a condition under Section [9763(b)(10)]”);  
)  (opinion 
in  support  of  reversal)  (agreeing  that  “the  trial  court  erred  to  the  extent  it  ordered 
restitution as a condition of [the defendant’s] probation under Section [9763(b)(10)] . . . 
[because] restitution cannot be imposed as both a condition of probation and as part of 
a defendant’s sentence under Section 1106(a) of the Crimes Code”).
C. Restitution-Creature of Statute

,  155  A.3d  69,  87  (Pa.  Super.  2017)  (

en  banc

 
“[A]n order of restitution must be based upon statutory authority.  In the context 
of a criminal case, restitution may be imposed either as a direct sentence, 18 Pa.C.S.A. 
, 725 A.2d 
§ 1106(a), or as a condition of probation, 42 Pa.C.S.A. § [9763].” 
729, 731-732 (Pa. 1999) (some citations omitted). Also, in a juvenile proceeding, there 
See
is statutory authority for a court to order restitution as part of an order of disposition.  
   a. Restitution as Condition of Probation:  42 Pa.C.S.A. § 9763

 42 Pa.C.S.A. § 6352.

 In re M.W.

 

In relevant part, 42 Pa.C.S.A. § 9763 provides:

§ 9763. Conditions of probation

(a)  General  rule.

--In  imposing  probation,  the  court  shall  consider 
guidelines  adopted  by  the  Pennsylvania  Commission  on  Sentencing 
under section 2154 (relating to adoption of guidelines for sentencing) 
or  2154.1  (relating  to  adoption  of  guidelines  for  restrictive 
conditions)  and  specify  at  the  time  of  sentencing  the  conditions  of 
probation,  including  the  length  of  the  term  of  restrictive  conditions 
under subsection (c) or (d). The term of restrictive conditions under 
subsection  (c)  shall  be  equal  to  or  greater  than  the  mandatory 
minimum term of imprisonment required by statute.
(b) Conditions generally.

conditions upon the defendant as it deems necessary:

--The court may attach any of the following 

(10)  To  make  restitution  of  the  fruits  of  the  crime  or  to  make 
reparations,  in  an  affordable  amount  and  on  a  schedule  that  the 
defendant  can  afford  to  pay,  for  the  loss  or  damage  caused  by  the 
crime.

. . .

. . .

4      Chapter 3      

Restitution as a Condition of Probation

(15) To do other things reasonably related to rehabilitation.

. . .

1
42 Pa.C.S.A. § 9763. 
D. Definitions 

Commonwealth  v.  Hall

In 

 
Court declared:

,  80  A.3d  1204  (Pa.  2013),  the  Pennsylvania  Supreme 

As  described  in  [42  Pa.C.S.A.  §  9763(b)(10)],  monetary  conditions 
of  probation  may  be  for  the  purpose  of  “restitution”  or  “to  make 
reparations”  for  the  loss  or  damage  caused  by  the  crime,  but  they 
must be limited to an amount the defendant “can afford to pay.” . . .
[T]he common dictionary definitions of the terms used in [42 Pa.C.S.A. 
§ 9763(b)(10)] are somewhat general.  “Restitution” has been defined 
as:  “a giving back to the rightful owner of something that has been lost 
or taken away; restoration” and “a making good for loss or damage; 
reimbursement.”  Webster’s New World Dictionary 1212 (2nd College 
ed.  1986).    The  legal  definition  of  “restitution”  is:    “[c]ompensation 
of  a  loss;  esp.,  full  or  partial  compensation  paid  by  a  criminal  to  a 
victim,  .  .  .  ordered  as  part  of  a  criminal  sentence  or  as  a  condition 
of  probation.”    Black’s  Law  Dictionary  1339  (8th  ed.  2004).  [The 
Pennsylvania  Supreme  Court]  has  explained  that  restitution  “refers 
to  compensation  required  for  the  wrongful  appropriation  of  money 
, 397 A.2d 1179, 1183 n.10 
or property].” 
(Pa. 1979)].

Commonwealth v. Walton

  42 Pa.C.S.A. § 9754, entitled “Order of probation,” declares:

Likewise, 
the  ordinary  dictionary  definition  of  “reparations” 
describes “a making of amends; making up for a wrong or injury” and 
“compensation . . .  for crimes committed against individuals; payable 
in  money,  labor,  goods,  etc.”    Webster’s  at  1204.    The  legal  definition 
(a) General rule.--In imposing an order of probation the court shall specify at the time of sentencing the 
length of any term during which the defendant is to be supervised, which term may not exceed the maximum 
term for which the defendant could be confined, and the authority that shall conduct the supervision. The 
court shall consider probation guidelines adopted by the Pennsylvania Commission on Sentencing under 
sections 2154 (relating to adoption of guidelines for sentencing) and 2154.1 (relating to adoption of guidelines 
for restrictive conditions).

(b) Conditions generally.--The court shall attach reasonable conditions authorized by section 9763 (relating to 
conditions of probation) as it deems necessary to ensure or assist the defendant in leading a law-abiding life.

. . .

42 Pa.C.S.A. § 9754.
 

5      Chapter 3      

Restitution as a Condition of Probation

See Walton

of  “reparations”  describes  “[t]he  act  of  making  amends  for  a  wrong” 
and “[c]ompensation for an injury or wrong.”  Black’s at 1325.  These 
definitions  convey  a  certain  retrospection:    the  payment  involved  in 
restitution and reparations is to remedy a harm already inflicted upon 
a victim. 
, 397 A.2d at 1183 n.10, 1185 (“reparation” refers 
to compensation paid to victim who suffered physical injury as result 
of  crime;  sentencing  court  properly  ordered  defendant  convicted  of 
aggravated assault in shooting incident to pay blinded victim twenty-
five dollars per week as condition of probation).

, 80 A.3d 1204, 1212-1213 (Pa. 2013).

Commonwealth v. Hall

E. Purposes Served 

See  Commonwealth  v.  Veon

 
Criminal sentencing essentially serves one or more of the following four purposes:  
“(1) deterrence, (2) incapacitation, (3) rehabilitation, [and] (4) retribution.”  Arthur W. 
Campbell, Law Of Sentencing § 2.1.  The primary purpose of any order of restitution 
(whether  imposed  as  a  direct  sentence  under  18  Pa.C.S.A.  §  1106,  as  a  condition  of 
probation under 42 Pa.C.S.A. § 9763, or as an order of disposition of a delinquent child 
,  150  A.3d 
under  42  Pa.C.S.A.  §  6352)  is  rehabilitation.   
435, 451 (Pa. 2016) (in considering the mandatory restitution statute of 18 Pa.C.S.A. § 
1106(c), the Supreme Court held:  “the primary purpose of restitution is rehabilitation 
of  the  offender.    Consequently,  recompense  to  the  victim  is  only  a  secondary  benefit, 
as  restitution  is  not  an  award  of  damages,  a  proposition  reinforced  by  the  General 
Assembly’s 1998 amendment of Section 1106 making restitution mandatory rather than 
discretionary”) (quotations and some citations omitted); 
, 217 
2
A.3d 1217, 1225 1226 (Pa. 2019) (same)
;  42 Pa.C.S.A. § 6352(a)(5) (authorizing the 
juvenile court to order “payment by the child of reasonable amounts of money as fines, 
costs, fees or restitution as deemed appropriate as part of the plan of rehabilitation”).  
The Pennsylvania Supreme Court explained:

Commonwealth v. Petrick

generally  speaking,  restitution  is  the  requirement  that  the  criminal 
offender repay, as a condition of his sentence, the victim or society, in 
money or services.  It is well established that the primary purpose of 
restitution is rehabilitation of the offender by impressing upon him or 
her that his [or her] criminal conduct caused the victim’s loss or personal 
injury and that it is his [or her] responsibility to repair the loss or injury 
as far as possible.  Thus, recompense to the victim is only a secondary 
2   In earlier cases, the Pennsylvania Supreme Court stated that, when imposed as a direct sentence under 18 Pa.C.S.A. § 1106, restitution 
benefit, as restitution is not an award of damages.  Although restitution 
serves a “primarily punitive” purpose.  See Commonwealth v. Harner, 617 A.2d 702, 704 (Pa. 1992) (“where restitution is imposed in 
addition to a statutory punishment, such as imprisonment, the order must be strictly scrutinized since its purpose is primarily punitive”); 
Commonwealth v. Walton, 397 A.2d 1179, 1184 (Pa. 1979) (same).  The Pennsylvania Supreme Court has, sub silentio, retreated from 
this statement in recent years and now holds that the “primary purpose of restitution is rehabilitation of the offender.”  Commonwealth 
v. Brown, 981 A.2d 893, 895-896 (Pa. 2009); Veon, 150 A.3d at 451; Petrick, 217 A.3d at 1225 1226.

6      Chapter 3      

Restitution as a Condition of Probation

is penal in nature, it is highly favored in the law and encouraged so that 
the  criminal  will  understand  the  egregiousness  of  his  or  her  conduct, 
be  deterred  from  repeating  the  conduct,  and  be  encouraged  to  live  in 
a  responsible  way.    Thus,  restitution,  at  its  core,  involves  concepts  of 
rehabilitation and deterrence.

Commonwealth v. Brown

omitted).
Harner
 

, 981 A.2d 893, 895-896 (Pa. 2009) (citations and footnotes 
Commonwealth  v. 

As  tailored  specifically  toward  the  subject  of  this  chapter,  in 

,  617  A.2d  702  (Pa.  1992),  the  Pennsylvania  Supreme  Court  held  that,  when 
Commonwealth 
imposed  as  a  condition  of  probation,  restitution  is  “primarily  aimed  at  rehabilitating 
v. Harner
and reintegrating a law breaker into society as a law-abiding citizen.”  

, 617 A.2d 702, 706 (Pa. 1992).  As secondary purposes, restitution ordered 
as a condition of probation serves to “deter [the defendant] from repeating [his or her] 
conduct” and “provide some measure of redress to the victim.”  
., 
725 A.2d 729, 732 (Pa. 1999).  
F. Criminal Sanction

In re M.W

. at 707; 

Id

 

The Pennsylvania Superior Court explained:

Whether imposed as a direct sentence or as a condition thereof (e.g., 
condition  of  probation),  the  primary  purpose  of  restitution  is  the 
rehabilitation  of  the  offender.    It  is  true  that  restitution  helps  the 
victim,  but  this  fact  is  secondary  to  the  reality  that  restitution  is  an 
aspect  of  sentencing  imposed  by  a  court  on  an  offender  in  order  to 
facilitate the administration of criminal justice. 

Various  characteristics  of  restitution  further  illustrate  that  its  true 
nature is that of a criminal sanction. For example, while a crime victim 
certainly  may  ask  the  district  attorney  to  seek  restitution,  it  is  the 
district attorney who has the authority to present that request to the 
court.    Moreover,  an  order  of  restitution  does  not  create  a  creditor-
debtor relationship between the victim and the offender.  Unlike a civil 
judgment,  the  victim  has  no  standing  to  enforce  a  restitution  order.   
Instead, restitution can only be enforced by the criminal court, just as 
penalties of incarceration or probation are within the court’s exclusive 
purview.  . . . In the end, restitution is simply not an award of damages 
but, rather, a sentence.

 934 A.2d 715, 720 (Pa. Super. 2007) (citations omitted).

Commonwealth v. Pleger,

7      Chapter 3      

Restitution as a Condition of Probation

G. Construction and Interpretation

Commonwealth v. Hall

 
Commonwealth v. Melvin
are penal in nature.”  

“[P]rovisions for payment of monetary sums as the result of criminal convictions 
, 80 A.3d 1204, 1212 (Pa. 2013); see also 
, 103 A.3d 1, 54 (Pa. Super. 2014) (holding that the catchall 
provision  of  the  (now-repealed)  county  intermediate  punishment  statute  was  penal).  
Thus,  the  restitution  provision  of  42  Pa.C.S.A.  §  9763  (restitution  as  a  condition  of 
probation) is penal.  

Commonwealth v. Melvin
see also Commonwealth v. Hall

 
“The Statutory Construction Act requires penal provisions of statutes to be strictly 
construed,  1  Pa.C.S.A.  §  1928(b)(1),  and  thus  such  language  should  be  interpreted  in 
, 103 A.3d 1, 54 (Pa. 
the light most favorable to the accused.”  
Super. 2014) (quotations omitted); 
, 80 A.3d 1204, 1212 
Commonwealth v. Rivera
(Pa.  2013)  (“as  a  penal  statute,  Section  97[63]  must  be  interpreted  in  the  light  most 
, 95 A.3d 913, 915 (Pa. Super. 
favorable to [the defendant]”); 
2014) (“[s]ince section 97[63] is a penal statute, we must strictly construe this provision 
and interpret any ambiguity in the light most favorable to the criminal defendant”).
H. Restitution Encouraged

 

The Pennsylvania Supreme Court has stated:

the practice of ordering restitution or reparation as [] a condition [of 
probation] is widely established and highly favored in the law, as an 
aid both to the criminal in achieving rehabilitation and to his victim in 
obtaining some measure of redress. 

Such sentences are encouraged and give the trial court the flexibility to 
determine all the direct and indirect damages caused by a defendant 
and then permit the court to order restitution so that the defendant 
will  understand  the  egregiousness  of  his  conduct,  be  deterred  from 
repeating this conduct, and be encouraged to live in a responsible way. 

Commonwealth v. Harner,

I. Restitution Not Affected by Bankruptcy

 617 A.2d 702, 706-707 (Pa. 1992) (citations omitted).

 
A  restitution  order  imposed  in  a  criminal  proceeding  is  not  dischargeable  in  a 
liquidation  or  “straight  bankruptcy”  proceeding  under  Chapter  7  of  the  Bankruptcy 
:    “[11  U.S.C.]  § 
Code.    As  the  United  States  Supreme  Court  held  in 
523(a)(7) preserves from discharge any condition a state criminal court imposes as part 
of a criminal sentence.”  

, 479 U.S. 36, 50 (1986).

Kelly  v.  Robinson

Kelly v. Robinson

8      Chapter 3      

Restitution as a Condition of Probation

Commonwealth  v.  Petrick

In 

,  the  Pennsylvania  Supreme  Court  specifically  held:   
 
“[h]aving  determined  that  the  basis  for  restitution  orders  in  Pennsylvania  remains 
focused on the rehabilitative needs of defendants, we conclude the holding of the United 
,  217  A.3d  1217, 
States  Supreme  Court  in 
1226 (Pa. 2019).  Thus, even in the context of mandatory restitution ordered under 18 
Pa.C.S.A. § 1106, the Pennsylvania Supreme Court held:

Commonwealth  v.  Petrick

  applies.”   

Kelly

Because  the  mandatory  restitution  order  serves  criminal  justice 
goals, restitution orders remain distinct from civil debt liability with 
respect to discharge in bankruptcy. This distinction is unaffected by 
the temporal relationship between the proceedings in the bankruptcy 
court and the criminal prosecution.  Additionally, it is unaffected by a 
creditor’s participation in the bankruptcy proceedings.

Id.

 
Further,  the  automatic  stay  provision  of  the  Bankruptcy  Code  does  not  apply  to 
restitution.  Because the collection of restitution is a continuation of a criminal action, 
a state court may proceed with a criminal prosecution without violating the automatic 
stay provisions of bankruptcy law:

The  plain  language  of  §  362(b)(1)  exempts  the  “commencement  or 
continuation  of  a  criminal  action  or  proceeding  against  the  debtor” 
from the automatic stay afforded by § 362(a).

United States v. Colasuonno

J. Differences between Restitution Imposed as a Direct Sentence and Condition of 
Probation 

, 697 F.3d 164, 173 (2d Cir. 2012).

see  also  Commonwealth  v.  Hall

Commonwealth v. Griffiths
“An  order  of  restitution  is  a  sentence,  whether  it  is  imposed  as  a  direct  sentence 
 
, 15 A.3d 73, 77 (Pa. Super. 
or as a condition of probation.”  
2010); 
,  80  A.3d  1204,  1211  (Pa.  2013)  (“questions 
implicating  the  trial  court’s  power  to  impose  restitution  concern  the  legality  of  the 
sentence”).  Nevertheless, there are important differences between restitution imposed 
as a direct sentence (under 18 Pa.C.S.A. § 1106) and as a condition of probation (under 
42 Pa.C.S.A. § 9763).  These differences include:
1. Mandatory vs. Discretionary

 
In terms of restitution imposed as a direct sentence, 18 Pa.C.S.A. § 1106 provides 
that the sentencing court must order the defendant to make full restitution when the 
defendant has been convicted of any crime where, as a direct result of the crime, the 
9      Chapter 3      

Restitution as a Condition of Probation

See 

Commonwealth v. Harner,

18  Pa.C.S.A.  §  1106(a).    On  the 
victim  suffers  injury  to  their  property  or  person.   
other hand, “the courts are traditionally and properly vested with a broader measure 
of discretion in fashioning conditions of probation appropriate to the circumstances of 
the  individual  case,”  including  ordering  restitution  as  a  condition  of  probation  under 
 617 A.2d 702, 706 (Pa. 1992).  Simply 
42 Pa.C.S.A. § 9763.  
See,  e.g
stated, 42 Pa.C.S.A. § 9763 provides the trial court with discretion as to whether to order 
the  defendant  to  pay  restitution  as  a  condition  of  probation.   
.,  42  Pa.C.S.A.  § 
as  it  deems  necessary
9754(b)  (“[t]he  court  shall  attach  reasonable  conditions  authorized  by  section  9763 
(relating  to  conditions  of  probation) 
  to  ensure  or  assist  the 
defendant in leading a law-abiding life”) (emphasis added); 42 Pa.C.S.A. § 9763(b)(10) 
 attach any of the following conditions upon the defendant as it deems 
(“[t]he court 
necessary: . . . [t]o make restitution of the fruits of the crime or to make reparations, 
see also A. Scott Enters., 
in  an  affordable  amount  and  on  a  schedule  that  the  defendant  can  afford  to  pay,  for 
Inc.  v.  City  of  Allentown,
the loss or damage caused by the crime”) (emphasis added); 

may

  142  A.3d  779,  787  (Pa.  2016)  (“[a]lthough  ‘may’  can  mean 
Commonwealth v. A.M. Byers Co.
the same as ‘shall’ where a statute directs the doing of a thing for the sake of justice, 
it ordinarily is employed in the permissive sense”); 
, 
31  A.2d  530,  532  (Pa.  1943)  (“[t]he  word  ‘may’  clearly  implies  discretionary  power. 
The language is permissive, rather than mandatory”).  Nevertheless, “[t]he practice of 
ordering restitution or reparation as [] a condition [of probation] is widely established 
and highly favored in the law, as an aid both to the criminal in achieving rehabilitation 
and to his victim in obtaining some measure of redress.”  
, 397 
A.2d 1179, 1183 (Pa. 1979).
2. Persons Who May Be Subjects of Restitution

Commonwealth v. Walton

See

see also

Restitution under the Crimes Code, 18 Pa.C.S.A. § 1106, generally limits restitution 
 
to a statutorily defined “victim.”  
 18 P.S. § 11.103.  As 
our Supreme Court observed, “[n]othing in the plain language of Section 97[63] either 
specifies or limits the persons who may be proper subjects of restitution or reparation 
as a condition of probation.” 

, 80 A.3d 1204, 1213 (Pa. 2013).

 Commonwealth v. Hall

 18 Pa.C.S.A. § 1106; 

Commonwealth v. Wydo-Streit,

As an example, in 

 
 2019 WL 3719529 (Pa. Super. 
3
2019)  (non-precedential  decision),
    the  defendant  stole  approximately  $75,000.00 
while  she  was  the  borough  manager  of  Carmichaels  Borough.    She  pleaded  guilty  to 
many counts of theft by unlawful taking or disposition.  The trial court sentenced her to 
serve a term of imprisonment, followed by five years of probation and, as a condition of 
her probation, to pay Carmichaels Borough restitution in an amount of $24,965.11, plus 
an  additional  $15,430.00  for  the  costs  the  borough  incurred  in  having  an  accounting 
firm conduct an audit.  
 2019 WL 3719529 (Pa. Super. 
2019) (non precedential decision), at *1.
3  Wydo-Streit was filed on August 7, 2019.  As a non-precedential decision filed after May 1, 2019, Wydo-Streit may be cited for its persua-
sive value.  Pa.R.A.P. 126(b). 

Commonwealth v. Wydo Streit,

10      Chapter 3      

Restitution as a Condition of Probation

Commonwealth  v.  Veon

On  appeal,  the  defendant  claimed  the  trial  court  did  not  have  authority  to  order 
 
her  to  pay  restitution  to  Carmichaels  Borough.    Among  other  things,  the  defendant 
claimed  that,  in 
,  150  A.3d  435  (Pa.  2016),  the  Pennsylvania 
Wydo Streit
Supreme Court “concluded that, with some limited exceptions, only a human being may 
be considered a victim entitled to recover restitution under Section 1106.”  
, 
2019 WL 3719529 at *6.  According to the defendant, since Carmichaels Borough was 
Id.
not a human being, the trial court could not order her to pay restitution to the borough.  

  The Superior Court concluded that the defendant’s claim was meritless.  

Veon

Id.

As the Court initially noted, “pursuant to 

 
 and its progeny, a sentence directing 
[the defendant] to pay restitution to Carmichaels Borough under Section 1106 would 
[indeed] be illegal.”  
  However, in this case, the trial court imposed restitution as a 
condition of the defendant’s probation, under 42 Pa.C.S.A. § 9763(b)(10).  The Superior 
Court held that, in contrast to 18 Pa.C.S.A. § 1106, 42 Pa.C.S.A. § 9763(b)(10) does not 
expressly limit the individuals or entities that may receive restitution as a condition of 
a defendant’s probation – and nothing prohibited the trial court from ordering that the 
defendant pay restitution to a municipality as a condition of her probation.  Thus, the 
Superior Court held that the restitution order was proper.  
3. Types of Crimes to Which the Statute is Applicable

 at **6-7.

See id.

see also 

Commonwealth v. Harner,

 
The  Pennsylvania  Supreme  Court  held:    “the  very  words  of  [18  Pa.C.S.A.  §  1106 
(mandatory  restitution  imposed  as  a  direct  sentence)]  provide  that  [the  statute] 
is  applicable  only  upon  conviction  for  a  crime  wherein  property  has  been  stolen, 
converted, unlawfully obtained or its value substantially decreased, or where the victim 
suffers personal injury directly resulting from a crime.”  
 617 
18 Pa.C.S.A. § 1106(a).  For restitution imposed as 
A.2d 702, 705 (Pa. 1992); 
a condition of probation under 42 Pa.C.S.A. § 9763(b)(10), the statute has no explicit 
limitation on the types of crimes to which it is applicable.  
 42 Pa.C.S.A. § 9763(b)(10) 
of the fruits of the crime or to make reparations
(“[t]he court may attach any of the following conditions upon the defendant as it deems 
, 
necessary: . . . [t]o make restitution 
in an affordable amount and on a schedule that the defendant can afford to pay, for the 
loss or damage caused by the crime”) (emphasis added).
4. Nexus Between the Damage and the Crime

See

In re M.W.

 

In 

, 725 A.2d 729 (Pa. 1999), the Pennsylvania Supreme Court explained:

In the context of a criminal case, restitution may be imposed either as 
a direct sentence, 18 Pa.C.S. § 1106(a), or as a condition of probation, 
42 Pa.C.S. § 9763.  When imposed as a sentence, the injury to property 
or  person  for  which  restitution  is ordered must  directly  result  from 

11      Chapter 3      

Restitution as a Condition of Probation

4
the crime.
 18 Pa.C.S.A. § 1106(a).  However, when restitution is 
  
ordered as a condition of probation, the sentencing court is accorded 
the latitude to fashion probationary conditions designed to rehabilitate 
Commonwealth  v. 
the  defendant  and  provide  some  measure  of  redress  to  the  victim.   
Harner
As  th[e  Pennsylvania  Supreme]  Court  stated  in  [

See

]:

Such sentences [(of ordering restitution as a condition of probation)] 
are encouraged and give the trial court the flexibility to determine 
all the direct and indirect damages caused by a defendant and then 
permit  the  court  to  order  restitution  so  that  the  defendant  will 
understand  the  egregiousness  of  his  conduct,  be  deterred  from 
repeating this conduct, and be encouraged to live in a responsible 
way.
Commonwealth v. Harner

[

, 617 A.2d 702, 707 (Pa. 1992)].

Thus, the requirement of a nexus between the damage and the offense 
is relaxed where restitution is ordered as a condition of probation.

In re M.W.

see 

also Commonwealth v. Nuse
 

, 725 A.2d 729, 732 (Pa. 1999) (footnotes and some citations omitted); 

, 976 A.2d 1191, 1193 (Pa. Super. 2009) (“where restitution 
is imposed as a condition of probation, the required nexus is relaxed.  While restitution 
cannot be indiscriminate, an indirect connection between the criminal activity and the 
loss  is  sufficient.    Thus,  even  without  direct  causation,  a  court  may  properly  impose 
restitution  as  a  probationary  condition  if  the  court  is  satisfied  that  the  restitution  is 
designed to rehabilitate the defendant and to make some measure of reimbursement to 
the victim”) (quotations, citations, and corrections omitted).

 
Even  under  this  relatively  lax  standard,  the  Pennsylvania  Superior  Court  has 
stressed  that,  for  restitution  imposed  as  a  condition  of  probation,  “there  must  be  at 
least  an  indirect  connection  between  the  criminal  activity  and  the  loss.  Additionally, 
4    The Pennsylvania Superior Court has explained direct causation under 18 Pa.C.S.A. § 1106:
to the extent a sentence of probation is imposed to make restitution for losses caused 
when a victim suffers injury to person or property, a sentencing court is mandated under § 1106(a) to enter an 
order of restitution for the loss or damage directly resulting from the crime. 18 Pa.C.S. § 1106(a). . . .

Because of the statutory language “directly resulting from the crime,” restitution under § 1106(a) is proper only 
if there is a direct causal connection between the crime and the loss.  [Commonwealth v. Harner, 617 A.2d 702, 
706 (Pa. 1992)] (stating that § 1106(a) “is clear on its face and applies only for those crimes to property or person 
where there has been a loss that flows from the conduct which forms the basis of the crime for which a defendant 
is held criminally accountable”). Thus, the sentencing court is statutorily required to impose restitution under 
§ 1106(a) when the Commonwealth has established that the defendant committed a crime, the victim suffered 
injury to person or property, and there exists a direct causal nexus between the crime of which defendant was 
convicted and the loss or damage suffered by the victim.  See 18 Pa.C.S. § 1106(a); see also Commonwealth v. 
Pappas, 845 A.2d 829, 842 (Pa. Super. 2004) (holding that restitution under § 1106(a) may be imposed only for 
those crimes to property or person where the victim suffered a loss that flows from the conduct that forms the 
basis of the crime for which the defendant is held criminally accountable).

 

Commonwealth v. Weir, 201 A.3d 163, 170-171 (Pa. Super. 2018), appeal granted, 215 A.3d 966 (Pa. 2019).

12      Chapter 3      

Restitution as a Condition of Probation

Commonwealth v. Kinnan
by  the  defendant’s  criminal  conduct,  there  should  be  proof  of  the  damages  suffered.”  
, 71 A.3d 983, 987 (Pa. Super. 2013) (quotations and citations 
omitted).  Where there is no proof of loss or damage, there can be no restitution.  
. at 
Commonwealth  v. 
987-988.  Moreover, “[b]ecause restitution is a sentence, the amount ordered must be 
Wright
supported  by  the  record;  it  may  not  be  speculative  or  excessive.”   

Id

, 722 A.2d 157, 159 (Pa. Super. 1998).

a. Examples 

Commonwealth v. Harner, 617 A.2d 702 (Pa. 1992)

 
The defendant pleaded guilty to “two counts of interference with custody of children 
Commonwealth  v. 
. . . after she took her son and daughter, without consultation, from their father’s legal 
Harner
custody  in  Harrisburg,  Pennsylvania,  to  the  State  of  Louisiana.”   

, 617 A.2d 702, 703 (Pa. 1992).  The trial court sentenced the defendant to serve 
12 months of probation and to pay the father restitution for the amounts he expended 
for “private investigators, trying to locate his children, for legal fees, within Louisiana 
and Pennsylvania, and for expenses for trips to Louisiana.”  
  The trial court did not 
specify whether the restitution was imposed as a direct sentence under 18 Pa.C.S.A. § 
1106 or as a condition of probation under 42 Pa.C.S.A. § 9763(b)(10).

Id.

Id.

The Supreme Court held that the restitution order was not permissible as a direct 
 
  at  706.    However,  the  Supreme  Court  held  that  the 
sentence  under  Section  1106.   
 at 707.  The Supreme 
order of restitution was permissible as a condition of probation.  
Court then vacated the judgment of sentence and remanded the case to the trial court, 
Id. 
so that the trial court could determine “what loss or damage has been caused, [] what 
amount of restitution [the defendant] can afford to pay, and how it should be paid.”   
(footnote omitted).
Commonwealth v. Kelly, 836 A.2d 931 (Pa. Super. 2003)

Id.

nolo contendere

The defendant pleaded 

 
 to three counts of receiving stolen property.  
The property consisted of two cell phones and a CD player that had been removed from 
Commonwealth v. Kelly,
inside of a truck; the person who originally stole the items had broken into and damaged 
the truck to steal the property.  
 836 A.2d 931, 932 (Pa. Super. 
2003).    The  trial  court  ordered  the  defendant  to  pay  “restitution  in  the  amount  of 
$2,269.80 as a condition of probation. Of that amount, $1,938.41 represented the cost 
. at 933.
for repair to [the] truck and $330.67 represented the value of the CD player.”  

Id

On  appeal,  the  defendant  claimed  the  trial  court  erred  in  ordering  him  to  pay 
 
restitution  for  the  damage  to  the  truck,  as  his  convictions  were  for  receiving  stolen 
Kelly
  The 
property and “he was not criminally responsible for the damage to the truck.” 
 Court rejected this argument and held that the trial court properly ordered the 

 Id.

13      Chapter 3      

Restitution as a Condition of Probation

defendant to pay this restitution, as a condition of his probation, for the indirect damage 
his criminal activity caused.  The Superior Court reasoned:  

We  recognize  that  a  restitution  order  as  a  condition  of  probation 
cannot be indiscriminate.  It is true that the court in this case heard 
no testimony as to how [the defendant] obtained the CD player, and 
“assumed he paid 20 bucks on the street from some unknown guys.”  
However, the verdict means [the defendant] was convicted of buying 
the goods, and he either knew they were stolen or reasonably should 
have known they were stolen. We note that [the trial court] reasoned 
that “if those people aren’t out there buying stolen property, people 
aren’t  breaking  in.”    In  other  words,  [the  defendant]  provided  a 
market  for  that  person  who  is  criminally  responsible  for  the  break-
in  and  damage  to  the  truck.    While  this  would  not  be  enough  to  be 
considered a “direct” result of the criminal activity, we do agree with 
[the trial court] that this can be considered “indirectly” connected to 
the criminal activity.

Id.

 at 934 (citations and corrections omitted).

Commonwealth v. Popow, 844 A.2d 13 (Pa. Super. 2004)

  While holding a box-cutter knife, the defendant was involved in an altercation with 
numerous people, including the victim.  During the altercation, the victim “suffered an 
injury to his right bicep, which required surgery.”  
, 844 A.2d 
13, 15 (Pa. Super. 2004).

Commonwealth v. Popow

 
The jury found the defendant guilty of simple assault (making a threat with a deadly 
weapon); however, the jury found the defendant not guilty on the charges of aggravated 
assault and simple assault, which were related to the stabbing of the victim.  
  The 
trial court sentenced the defendant to serve a term of probation and to pay the victim 
mandatory restitution, under 18 Pa.C.S.A. § 1106, in the amount of $12,212.17, for the 
injuries the victim sustained to his arm.  

Id.

Id.

 
The defendant appealed his judgment of sentence to the Superior Court and, among 
other things, argued that “the trial court illegally imposed restitution for [the victim’s] 
injuries, since [the defendant] was acquitted of aggravated assault and simple assault 
for stabbing [the victim].”  

 at 16.  The Superior Court agreed with the defendant.

Id.

 
The Superior Court initially held that, under the plain language of the trial court’s 
sentencing order, the trial court imposed the restitution as a direct sentence, under 18 
Pa.C.S.A. § 1106, and not as a condition of probation.  
 Court held 
that,  because  the  restitution  was  imposed  as  a  direct  sentence,  there  needed  to  be  a 
direct causal connection between the crime for which the defendant was convicted and 
14      Chapter 3      

 at 19.  The 

Popow

Id.

Restitution as a Condition of Probation

See id.

Popow

, however, the defendant 
the loss or damage sustained by the victim.  
was acquitted on the charges related to the stabbing of the victim – and he was only 
Popow
convicted of simple assault for making a threat with a deadly weapon.  Therefore, the 
 Court held that the restitution order was illegal because the victim’s “injuries 
were not directly caused by the simple assault, since that conviction was for threatening 
conduct and placing others in fear.”  

  In 

Id.

Popow

Nevertheless,  the 

  Court  held  that  the  trial  court  had  authority  to  impose 
 
restitution as a condition of the defendant’s probation, pursuant to 42 Pa.C.S.A. § 9763.  
The Court reasoned:

following  the  acquittal  on  the  assault  charges  with  respect  [to  the 
stabbing of the victim], the jury finding indicates that [the defendant] 
was not directly responsible for the injuries to [the victim].  However, 
[the  defendant]  could  be  held  to  be  indirectly  responsible  for  them.   
It is not certain from the jury’s verdict whether [the victim] was cut 
accidentally  during  the  scuffle,  or  whether  he  was  stabbed  in  self-
defense  because  he  was  choking  [the  defendant].  In  either  event, 
the  illegal  actions  of  [the  defendant]  triggered  the  entire  event  and 
therefore he is indirectly responsible for the injuries.

Id.

 at 18-19.

The Superior Court vacated the defendant’s illegal sentence and remanded the case 

 
“for resentencing in accordance with this decision.”  Id. at 20.
Commonwealth v. Harriott,

919 A.2d 234 (Pa. Super. 2007)

 

 
The defendant was convicted of crimes including resisting arrest and DUI.  She also 
spit on the arresting officers and, as a result, the officers underwent precautionary blood 
tests.  The trial court sentenced the defendant to a probationary term for the resisting 
arrest conviction and to county intermediate punishment for the DUI conviction.  Further, 
“[a]s part of [the defendant’s] DUI penalty, she was ordered to make restitution to . . . the 
Commonwealth v. Harriott,
insurance company that paid for the blood tests performed on the arresting officers.”  

 919 A.2d 234, 236-237 (Pa. Super. 2007).

 
On  appeal,  the  defendant  claimed  the  trial  court  erred  in  ordering  that  she  pay 
restitution because she was acquitted of simple assault and, according to the defendant, 
“even  if  the  police  did  suffer  some  injury  from  the  spitting,  it  did  not  result  from  the 
 at 237.  The Superior Court rejected this claim.
crimes for which she was convicted.”  

Id.

 
At the outset, the Superior Court ruled that, under the plain terms of the sentencing 
order, the trial court imposed the restitution for the DUI conviction – not the resisting 
arrest conviction.  As a result, the Superior Court held that the restitution order could not 
15      Chapter 3      

Restitution as a Condition of Probation

be justified as a direct sentence under 18 Pa.C.S.A. § 1106 or as a condition of probation 
under 42 Pa.C.S.A. § 9763.  The Superior Court explained:

While  driving,  [the  defendant]  did  not  wreck  into  another  vehicle, 
collide  with  property,  strike  a  pedestrian  or  injure  anyone.    In 
fact,  the  restitution  had  nothing  to  do  with  any  such  matters.    [The 
defendant’s] drunk driving did not directly cause the officers to require 
precautionary blood testing.  Therefore, the direct nexus required by 
§ 1106(a) is lacking, and the statute does not authorize, as part of the 
DUI sentence, restitution for the blood tests in this case.

Second,  [the  defendant]  was  not  placed  on  probation  for  DUI.   
Therefore, we cannot affirm the restitution as a condition of probation 
under 42 Pa.C.S.A. § [9763(b)(10)].

Id.

 at 240.

Harriott

However, the 

 Court held that the restitution order was permissible as a 
 
condition of (the now-repealed) county intermediate punishment restitution provision.  
The Superior Court held:

[The  defendant]  was  .  .  .  ordered  to  serve  intermediate  punishment 
as part of the DUI sentence.  While the act of spitting was plainly not 
the same as drunk driving, it certainly was a part of [the defendant’s] 
overall conduct which stemmed from her DUI.  We believe that there 
is  an  undeniable,  albeit  indirect,  link  connecting  [the  defendant’s] 
drunk  driving,  her  presence  at  the  hospital  for  DUI  blood  alcohol 
testing, her act of spitting on officers who arrested her for DUI, and 
their need for precautionary blood testing.  Restitution will serve the 
purposes of helping to teach [the defendant] the egregiousness of her 
conduct, to deter her from re-offending, and to encourage her to live 
responsibly.  The restitution also will provide reimbursement to the 
Commonwealth  v.  Colon,
insurance  company.  The  insurance  company  is  properly  considered 
to  be  a  victim  for  restitution  purposes.  [
 
708  A.2d  1279,  1281  (Pa.  Super.  1998)]  (finding  that  restitution  to 
insurer was a proper condition of intermediate punishment imposed 
for  DUI  conviction).    Based  on  the  foregoing  analysis,  we  find  that 
the restitution is supportable as a condition of [county intermediate 
punishment].
Harriott

Id.

 The 

 Court affirmed the defendant’s judgment of sentence.  

 at 241.

Commonwealth v. Nuse, 976 A.2d 1191 (Pa. Super. 2009)

Id. 

16      Chapter 3      

Restitution as a Condition of Probation

The Superior Court summarized the underlying facts:  

[The defendant] was driving a car belonging to her purported common 
law husband when it collided with the vehicle in front of her, which 
was owned and operated by [the victim].  [The victim’s] vehicle struck 
the vehicle in front of him.  [The victim] was injured and his vehicle 
“totaled.”  [The defendant], who was driving with a suspended license, 
told [the victim] to pull over to exchange information, but when he did, 
[the defendant] fled.  [The victim] had no collision coverage.  Because 
[the  defendant]  was  driving  while  her  license  was  suspended,  her 
insurance company refused to indemnify [the victim’s] loss.

Commonwealth v. Nuse,

 976 A.2d 1191, 1192 (Pa. Super. 2009).

The defendant pleaded guilty to “accidents involving damage to an attended vehicle 
 
or  property”  and  “driving  while  operating  privilege  is  suspended  or  revoked.”    At 
sentencing, the trial court ordered the defendant “to pay restitution to [the victim] in 
the amount of $5,224.69, his property loss, as a condition of probation.”  

Id. 

 
The  defendant  appealed  and  claimed  that  the  restitution  order  was  erroneous 
because “the loss resulted from the accident, not from her criminal act of leaving the 
scene of an accident involving damage to the attended vehicle.”  
 Court found 
the claim meritless and held that the restitution order was permissible as a condition of 
the defendant’s probation:

Nuse

 The 

Id. 

Commonwealth 
The connection between [the defendant’s] criminal conduct and the loss 
Commonwealth v. Harriott,
v. Kelly
suffered by the victim is even stronger than in either [

See

Kelly

[]  and 

Harriott

, 836 A.2d 931 (Pa. Super. 2003) or 

 
919  A.2d  234  (Pa.  Super.  2007)].    Burglary  is  not  an  element  of  the 
crime of receiving stolen property. 
 18 Pa.C.S.A. § 3925.  Spitting on 
an officer is not an element of a DUI offense.  Yet, this Court concluded 
that there was still a sufficient indirect connection between the damage 
and  the  criminal  conduct  in  both 
[].  Here,  it  is 
uncontested that defendant struck the victim’s vehicle causing damage, 
and then left the scene of the accident.  Causing damage to an attended 
vehicle  is  a  pre-requisite  element  of  the  crime  to  which  defendant 
pleaded guilty, creating a more direct connection between the damage 
and the criminal conduct than in either of the aforementioned cases.  
Furthermore, [the victim’s] vehicle would not have been damaged if 
[the  defendant]  had  not  been  driving,  as  she  should  not  have  been 
given the suspension of her license, the companion offense to which 
she pleaded guilty.  The facts of record support a finding of at least an 
indirect connection between the damage and the commission of either 
crime.

17      Chapter 3      

Restitution as a Condition of Probation

Nuse

, 976 A.2d at 1194. 

b. Where There Is No Proof of Loss or Damage

Commonwealth v. Kinnan,

71 A.3d 983 (Pa. Super. 2013)

 

The defendant was seen stealing a large quantity of metal from his employer.  The 
 
police  investigated  and  recovered  all  of  the  metal  the  defendant  stole;  further,  “there 
[wa]s  nothing  in  the  record  indicating  that  the  metal,  or  the  premises  from  which  it 
 71 A.3d 983, 985 (Pa. 
was taken, was damaged in any way.”  
Super. 2013).  

Commonwealth v. Kinnan,

The defendant pleaded guilty to theft by unlawful taking.  At sentencing, the trial 
 
Id.
court ordered the defendant to pay the employer $3,010.41 in restitution as a condition 
of his probation; the amount constituted the value of the metal the defendant stole.  
 
at 985-986. 

Id.

 
The defendant appealed and claimed the trial court erred in ordering him to pay 
any restitution because “the police had recovered all of the stolen metal and returned it, 
 at 986.  The Superior Court agreed with the defendant.  
undamaged, to” the employer.  
The Court reasoned that, since there was no permanent loss and no property damage, 
the trial court could not impose restitution as a condition of probation under either 42 
5
Pa.C.S.A. § 9763(b)(10) or the ”catchall” provision in 42 Pa.C.S.A. § 9763(b):
 

 [Commonwealth 
Although [the employer] was temporarily deprived of its property, it 
v. Hall
suffered no permanent loss as a result of the theft. See

, 994 A.2d 1141, 1145 n. 3 (Pa. Super. 2010) (en banc), affirmed 
on  other  grounds,  80  A.3d  1204  (Pa.  2013)]  (stating  that  “to  the 
extent  a  sentence  of  probation  is  imposed  to  make  restitution  for 
losses  caused  by  the  defendant’s  criminal  conduct,  there  should  be 
proof of the damages suffered”).  Further, [the Pennsylvania Superior] 
Court  has  stated  that  “a  court  may  properly  impose  restitution  as  a 
probationary condition if the court is satisfied that the restitution is 
designed  to  rehabilitate  the  defendant  and  to  make  some  measure 
of  reimbursement  to  the  victim.”    [
,  919 
A.2d 234, 238 (Pa. Super. 2007)].  Here, the sentencing court ordered 
[the  defendant]  to  pay  $3,010.41  in  restitution  to  [the  employer]  as 
a condition of [the defendant’s] probation.  However, [the employer] 
suffered no loss, and, therefore, the sentencing court’s imposition of 
See  Harriott
restitution could not have been designed to reimburse [the employer].  
5    The “catchall” probationary condition is now found at 42 Pa.C.S.A. § 9763(b)(15).  It currently reads:  “[t]he court may attach any of 
,  919  A.2d  at  238  (stating  that  “a  court  may  properly 
the following conditions upon the defendant as it deems necessary: . . . (15) To do other things reasonably related to rehabilitation.”  42 
Pa.C.S.A. § 9763(b)(15).  We note that this provision is worded slightly differently than the catchall provision that existed at the time 
Kinnan was decided.  See Kinnan, 71 A.3d at 987-988 (quoting the catchall provision that existed at the time). 

Commonwealth  v.  Harriott

18      Chapter 3      

Restitution as a Condition of Probation

impose restitution as a probationary condition if the court is satisfied 
that  the  restitution  is  designed  [(1)]  to  rehabilitate  the  defendant[;] 
and [(2)] to make some measure of reimbursement to the victim.”

. . .

In  its  Pa.R.A.P.  1925(a)  Opinion,  the  sentencing  court  explained 
that  its  imposition  of  restitution  as  a  probationary  condition  was 
[rehabilitative] in nature and opined that this condition was authorized 
by  [the  “catchall”  probation  condition,  which,  at  the  time,  provided 
that,  as  a  condition  of  probation,  a  sentencing  court  may  order  a 
defendant “[t]o satisfy any other conditions reasonably related to the 
rehabilitation of the defendant and not unduly restrictive of his liberty 
or  incompatible  with  his  freedom  of  conscience”].    However,  after  a 
thorough review of the case law interpreting section 97[63], we cannot 
agree  that  [the  “catchall”  provision]  authorized  the  imposition  of 
restitution under the circumstances of this case.  There is no appellate 
case  in  Pennsylvania  upholding  a  sentencing  court’s  imposition  of 
restitution as a condition of probation under [the “catchall” provision] 
where, as here, the victim of the crime suffered no permanent loss.

Id.

 at 987-988 (footnotes, emphasis, and some citations omitted).

Kinnan

The 

 
 Court concluded that the trial court improperly ordered restitution as 
a condition of probation under 42 Pa.C.S.A. § 9763.  Therefore, the Court vacated the 
illegal sentence and remanded for resentencing.  
5. Amount of Restitution in Relation to the Loss

 at 988.

Id.

  When mandatory restitution is imposed as a direct sentence, 18 Pa.C.S.A. § 1106 
demands that the sentencing court “order full restitution . . . so as to provide the victim 
with the fullest compensation for the loss.”  18 Pa.C.S.A. § 1106(c)(1)(i).  On the other 
hand,  when  restitution  is  imposed  as  a  condition  of  probation  under  42  Pa.C.S.A.  § 
9763(b)(10), the statute declares that the trial court “may” require the defendant “[t]
o  make  restitution  of  the  fruits  of  the  crime  or  to  make  reparations,  in  an  affordable 
amount and on a schedule that the defendant can afford to pay, for the loss or damage 
caused by the crime.”  42 Pa.C.S.A. § 9763(b)(10).  

 
As the Pennsylvania Supreme Court has held, Section 9763 provides the sentencing 
court with a broad measure of discretion to fashion an award of restitution as a condition 
Commonwealth v. Hall
of  probation  that  is  “appropriate  to  the  circumstances  of  the  individual  case.”    See 
, 397 
A.2d 1179, 1184 (Pa. 1979) (“courts . . . are traditionally and properly invested with a 
broader measure of discretion in fashioning conditions of probation appropriate to the 
19      Chapter 3      

, 80 A.3d 1204, 1215 (Pa. 2013);

 Commonwealth v. Walton

Restitution as a Condition of Probation

circumstances of the individual case”).  However, this discretion is not unbridled and, 
when restitution is imposed as a condition of probation, the restitution order cannot be 
indiscriminate,  speculative,  or  excessive.    Rather,  “[b]ecause  restitution  is  a  sentence, 
, 201 
the amount ordered must be supported by the record.”  
,  215  A.3d  966  (Pa.  2019).    The  trial 
A.3d  163,  171  (Pa.  Super.  2018), 
court has the obligation to determine, at sentencing, “the loss or damage the defendant 
see also 
Commonwealth v. Seminko
has caused, what amount of restitution he can afford to pay[,] and how he should pay 
Hall,
it.”  

, 443 A.2d 1192, 1192-1193 (Pa. Super. 1982); 

Commonwealth v. Weir

appeal  granted

  80  A.3d  at  1216  (holding  that  the  trial  court’s  probationary  condition  that  the 
defendant pay $200.00 per month in child support, to support the children of the victim 
he killed, failed, in part, because “the award here seems so speculative, as a matter of 
child support, as to approach being arbitrary.  . . . There is, in fact, nothing in the record to 
reflect how the court fixed the support amount at $200 monthly. Nor did the court make 
findings regarding the actual financial needs of the victim’s children (including needs 
unmet by the resources available to their mother), or to what extent the victim actually 
provided financial support for his children — in any dollar amount — prior to his death.  
Rather,  the  amount  fixed  by  the  court  seems  to  be  unmoored  —  and  perhaps  purely 
symbolic.  . . . The probationary condition imposed by the trial court is not sustainable 
on the record here”).
6. Determination of the Defendant’s Ability to Pay 

 
Under the mandatory restitution provision of 18 Pa.C.S.A. § 1106, the sentencing 
court “shall order full restitution . . . [r]egardless of the current financial resources of 
the defendant, so as to provide the victim with the fullest compensation for the loss.”  
6
18 Pa.C.S.A. § 1106(c).
   Thus, under Section 1106(c), the sentencing court is required 
to order full restitution, regardless of the defendant’s ability to pay.  Contrariwise, when 
restitution is ordered as a condition of probation under 42 Pa.C.S.A. § 9763(b)(10), the 
statute requires the trial court to determine “what loss or damage has been caused, and 
Commonwealth v. Harner
what amount of restitution [the defendant] can afford to pay, and how it should be paid.” 
, 617 A.2d 702, 707 (Pa. 1992) (footnote omitted).  The trial 
court may then only order the defendant to make restitution as a condition of probation 
“in an affordable amount and on a schedule that the defendant can afford to pay.”  42 
Pa.C.S.A. § 9763(b)(10).
7. Expiration of Payment Obligation

6  18 Pa.C.S.A. § 1106(c)(2)(iii) goes on to say:  “the court . . . [s]hall not order incarceration of a defendant for failure to pay restitution if 
the failure results from the offender’s inability to pay.”  18 Pa.C.S.A. § 1106(c)(2)(iii); see also 18 Pa.C.S.A. § 1106(f) (procedure when the 
“offender shall fail to make [mandatory] restitution”); Commonwealth v. Rush, 909 A.2d 805, 811 (Pa. Super. 2006) (under 18 Pa.C.S.A. § 
1106, “the court need not consider the defendant’s ability to pay at the time of imposing restitution[;] the defendant’s ability to pay need 
only be considered upon default”); Commonwealth v. Petrick, 217 A.3d 1217, 1225 (Pa. 2019) (declaring that, while Section 1106 requires 
that the original sentencing court order mandatory, full restitution regardless of the defendant’s ability to pay, “[t]he Legislature did not 
foreclose a sentencing court’s consideration of a defendant’s ability to pay restitution; it merely eliminated ability to pay as a prerequisite 
consideration. . . .  The Legislature simply placed the consideration of a defendant’s ability to pay at the more pertinent stage, when a 
sentencing court must assess a defendant’s compliance with the order”). 

20      Chapter 3      

Restitution as a Condition of Probation

Commonwealth v. Griffiths

In 

see also

, 15 A.3d 73 (Pa. Super. 2010), a panel of the Superior 
 
Commonwealth v. Griffiths
Court stated, in dicta, that “an order of restitution [as a direct sentence under 18 Pa.C.S.A. 
§ 1106] is enforceable until paid.”  
, 15 A.3d 73, 78 (Pa. Super. 
 42 Pa.C.S.A. § 9728(c) (“[n]otwithstanding [42 Pa.C.S.A. §] 6353 (relating 
2010); 
to limitation on and change in place of commitment) or 18 Pa.C.S. § 1106(c)(2) (relating 
to restitution for injuries to person or property), the period of time during which such 
judgments shall have full effect may exceed the maximum term of imprisonment to which 
the  offender  could  have  been  sentenced  for  the  crimes  of  which  he  was  convicted  or 
the maximum term of confinement to which the offender was committed”).  Conversely, 
when  restitution  is  ordered  as  a  condition  of  probation  under  42  Pa.C.S.A.  §  9763(b)
(10), the restitution must be viewed as “a ‘condition’ that is required to be met in order 
to  successfully  complete  []  probation.”   
,  994  A.2d  606,  610 
(Pa. Super. 2010).  Therefore, “[o]nce the term of probation expires, so, too, must any 
conditions attached thereto,” including any condition requiring that the probationer pay 
restitution – regardless of whether the amount of restitution ordered has been paid in 
full.  
, 155 A.3d 69, 87 (Pa. Super. 2017) (en banc) 
(plurality) (explaining that, when restitution is ordered as a condition of probation, the 
obligation to pay restitution “is discharged upon the expiration of the term of probation 
regardless of whether the obligation has been paid in full”).
8. As a Condition of a Term of Probation

Id.; see also Commonwealth v. Holmes

Commonwealth  v.  Karth

 
It  bears  mentioning  that,  since  restitution  imposed  under  42  Pa.C.S.A.  §  9763  is 
see also 
imposed as “a condition of probation,” the restitution condition must be attached to a 
Commonwealth v. Harriott
term of probation.  

 42 Pa.C.S.A. § 9754(a) and (b); 42 Pa.C.S.A. § 9763(b); 

See

, 919 A.2d 234, 240 (Pa. Super. 2007) (holding that, since 
the defendant “was not placed on probation for DUI . . . , [the Superior Court could not] 
Commonwealth  v.  Thier,
affirm  the  restitution  as  a  condition  of  probation  under  42  Pa.C.S.A.  §  9763(b)(10)”); 
  663  A.2d  225,  229  (Pa.  Super.  1995)  (holding  that  the  trial 
court erred when it purported to impose a probationary condition upon the defendant 
when  the  trial  court  did  not  sentence  the  defendant  to  probation,  reasoning:    “[the 
‘catchall’ probationary condition provision] applies only when the trial court wishes to 
impose a condition on a sentence of probation. No probationary sentence was imposed 
in the present case, and therefore, [the catchall provision] cannot be used to justify the 
, 994 A.2d 606, 610 
sentencing court’s additional sentence”); 
(Pa. Super. 2010) (“[o]nce the term of probation expires, so, too, must any conditions 
attached thereto,” including any condition requiring that the probationer pay restitution 
– regardless of whether the amount of restitution ordered has been paid in full).  
II. PROCEDURE

Commonwealth v. Karth

A. Pennsylvania Rule of Criminal Procedure 705.1.

Pennsylvania Rule of Criminal Procedure 705.1 provides the backbone procedure 

 
21      Chapter 3      

Restitution as a Condition of Probation

for any restitution order.  The rule declares:
Rule 705.1. Restitution

(A)  At  the  time  of  sentencing,  the  judge  shall  determine  what 
restitution, if any, shall be imposed.

(B) In any case in which restitution is imposed, the judge shall state in 
the sentencing order:

(1) the amount of restitution ordered;

(2) the details of a payment plan, if any, including when payment is 
to begin;

(3) the identity of the payee(s);

(4) to which officer or agency the restitution payment shall be made;

(5) whether any restitution has been paid and in what amount; and

(6)  whether  the  restitution  has  been  imposed  as  a  part  of  the 
sentence and/or as a condition of probation.

Pa.R.Crim.P. 705.1.

 

The Comment to Rule 705.1 states:

Comment:

  This  rule  provides  the  procedures  for  the  statutory 
requirement for the judge to impose restitution. In all cases in which 
restitution is imposed, the sentencing judge must state on the record 
  18  Pa.C.S.  § 
the  amount  of  restitution  at  the  time  of  sentencing. 
1106 and 42 Pa.C.S. §§ 9721, 9728.
See,  e.g

See

., 
The  extent  of  restitution  also  may  be  provided  by  statute. 
18 Pa.C.S. § 1107 (restitution for timber theft); § 1107.1 (restitution 
for identity theft); and § 1110 (restitution for cleanup of clandestine 
labs).

When  imposing  restitution,  the  sentencing  judge  should  consider 
whether  the  defendant  has  received  notice  of  the  intention  to  seek 
restitution  prior  to  the  hearing  and  whether  the  defendant  intends 
to object to the imposition of restitution. The sentencing hearing may 
need to be continued as a result.
Paragraph  (B)(6)  requires  that  the  sentencing  order  make  clear 

22      Chapter 3      

Restitution as a Condition of Probation

whether  any  restitution  is  being  imposed  as  a  part  of  the  sentence 
pursuant to 18 Pa.C.S. § 1106 or as a condition of probation pursuant 
to 42 Pa.C.S. § 97[63]. 

Unlike  restitution  imposed  under  §  1106  that  is  penal  in  nature, 
restitution imposed as a condition of probation is primarily aimed at 
7
rehabilitation.
 Sentences of probation give a trial court the flexibility 
Commonwealth 
Commonwealth v. Harner,
to determine all the direct and indirect damages caused by a defendant. 
v. Hall

 617 A.2d 702 (Pa. 1992); 

, 80 A.3d 1204 (Pa. 2013). Because a term of probation may not 
exceed the maximum term for which the defendant could be confined, 
and a court cannot enforce a restitution sentence past the statutory 
maximum date, a court may not require that restitution imposed as a 
Commonwealth v. Karth,
condition of probation be paid beyond the statutory maximum date. 

 994 A.2d 606 (Pa. Super. 2010).

See, e.g.

Certain costs are mandatory and must be imposed. 
1101 of the Crime Victims Act, 18 P.S. § 11.1101.

, Section 

Pa.R.Crim.P. 705.1 cmt.
B. Prior Notification

As stated in the comment to Rule 705.1, “[w]hen imposing restitution, the sentencing 
 
judge  should  consider  whether  the  defendant  has  received  notice  of  the  intention  to 
7     This  sentence  paraphrases  similar  language  found  in  a  Pennsylvania  Superior  Court  opinion  and  unpublished  Superior  Court 
memoranda.    See  Commonwealth  v.  Karth,  994  A.2d  606,  607  (Pa.  Super.  2010).    However,  the  sentence  can  cause  confusion.    The 
Pennsylvania Supreme Court has, many times, declared that restitution ordered under 18 Pa.C.S.A. § 1106 is “penal in nature” (and, thus, 
that the statute must be strictly construed) and, in the same breath, declared that this type of restitution (like all restitution) serves the 
“primary purpose” of rehabilitation.  See, e.g., Commonwealth v. Runion, 662 A.2d 617, 618-619 (Pa. 1995) (holding that Section 1106 is 
a “penal provision” that demands a strict interpretation and also declaring:  “[i]t is a well-established principle that the primary purpose 
of restitution is rehabilitation of the offender by impressing upon him that his criminal conduct caused the victim’s loss or personal injury 
and that it is his responsibility to repair the loss or injury as far as possible”), superseded by statute as recognized in Commonwealth v. 
Veon, 150 A.3d 435, 450 (Pa. 2016); Commonwealth v. Brown, 981 A.2d 893, 895-896 (Pa. 2009) (speaking of restitution ordered under 18 
Pa.C.S.A. § 1106, the Supreme Court held:  “restitution is penal in nature.  . . . It is well established that the primary purpose of restitution 
is rehabilitation of the offender by impressing upon him or her that his criminal conduct caused the victim’s loss or personal injury and 
that it is his responsibility to repair the loss or injury as far as possible”).  Further, the Pennsylvania Supreme Court recently reaffirmed 
that mandatory restitution under 18 Pa.C.S.A. § 1106 has, as its primary purpose, the rehabilitation of the offender.  Commonwealth v. 
Petrick, 217 A.3d 1217, 1225-1226 (Pa. 2019).

In addition, when restitution is imposed as a condition of probation, the restitution obligation is still a part of the judgment of sentence 
and it is still imposed by a sentencing court, at a criminal sentencing proceeding, and as the result of a criminal conviction.  Thus, like 
restitution imposed as a direct sentence under 18 Pa.C.S.A. § 1106, restitution imposed as a condition of probation is undoubtedly “penal 
in nature.”  See, e.g., Commonwealth v. Hall, 80 A.3d 1204, 1212 (Pa. 2013) (“provisions for payment of monetary sums as the result of 
criminal convictions are penal in nature”).  

  Nevertheless, simply because a statute is penal does not mean that its primary purpose must be punitive, or that it cannot be rehabilitative.  
To be sure, criminal sentencing essentially serves one or more of the following four purposes:  “(1) deterrence, (2) incapacitation, (3) 
rehabilitation, [and] (4) retribution.”  Arthur W. Campbell, LAW OF SENTENCING § 2.1.  Thus, the criminal justice system is “concerned 
not only with punishing the offender, but also with rehabilitating him.”  Kelly v. Robinson, 479 U.S. 36, 52 (1986).  As such, it is not 
contradictory to view restitution as penal in character, but having the primary purpose of rehabilitating the defendant.

 

 

23      Chapter 3      

Restitution as a Condition of Probation

seek restitution prior to the hearing and whether the defendant intends to object to the 
imposition of restitution. The sentencing hearing may need to be continued as a result.”  
Pa.R.Crim.P. 705.1 cmt.
C. Right to Counsel

Commonwealth v. Smith

Commonwealth v. Griffiths

Commonwealth ex rel. Wright v. Cavell

“[T]here  is  no  disputing  that  there  exists  a  constitutional  right  to  counsel  at 
 
, 69 A.3d 259, 265 (Pa. Super. 2013) (quotations 
sentencing.”  
and citations omitted); 
, 220 A.2d 611, 614 (Pa. 
1966) (“[a] hearing on a guilty plea or at the time of sentencing is a ‘critical stage’ in the 
proceedings against the accused, at which the accused is entitled to be represented by 
[c]ounsel”) (quotations and citations omitted).  Further, as the Superior Court has stated, 
“[a]n order of restitution is a sentence, whether it is imposed as a direct sentence or as 
see also Commonwealth v. Hall
, 15 A.3d 73, 77 (Pa. Super. 2010); 
a condition of probation.”  
, 80 A.3d 1204, 1211 (Pa. 2013) (“questions implicating 
the trial court’s power to impose restitution concern the legality of the sentence”).  Thus, 
it  is  logical  to  conclude  that  a  defendant  has  a  constitutional  right  to  counsel  at  any 
C.f.  Commonwealth  v.  Zrncic
restitution  hearing,  including  those  imposing  restitution  as  a  condition  of  probation.  
,  131  A.3d  1008,  1011  (Pa.  Super.  2016)  (holding  that 
the defendant had a constitutional right to counsel at a sentencing hearing, where the 
sentencing hearing was limited to the issue of restitution under 18 Pa.C.S.A. § 1106).
D. Restitution Must be Determined by the Trial Court at Sentencing

1. Generally

 
Pennsylvania Rule of Criminal Procedure 705.1 clearly states that, for any restitution 
order,  the  judge  must  determine,  “[a]t  the  time  of  sentencing,  .  .  .  what  restitution,  if 
any, shall be imposed.”  Pa.R.Crim.P. 705.1(A).  Thus, regardless of whether restitution is 
imposed as a direct sentence (under 18 Pa.C.S.A. § 1106) or as a condition of probation 
(under  42  Pa.C.S.A.  §  9763),  the  trial  court  must  determine,  at  sentencing,  and  then 
state, in the sentencing order: (1) the amount of restitution ordered; (2) the details of a 
payment plan, if any, including when payment is to begin; (3) the identity of the payee(s); 
(4) to which officer or agency the restitution payment shall be made; (5) whether any 
restitution has been paid and in what amount; and (6) whether the restitution has been 
imposed as a part of the sentence and/or as a condition of probation.  
 Pa.R.Crim.P. 
,  850  A.2d  712,  715  (Pa.  Super.  2004) 
705.1(B); 
(“whether [the restitution is imposed as] a condition of probation or a direct sentence, 
the amount and manner of restitution must be determined by the sentencing court”).  

see  also  Commonwealth  v.  Deshong

See

 
As is implicit in Rule 705.1 (and required by Pennsylvania statutory and case law), 
when restitution is imposed as a condition of probation, the trial court must determine, 
at sentencing, “the loss or damage the defendant has caused, what amount of restitution 
24      Chapter 3      

Restitution as a Condition of Probation

Commonwealth v. Seminko

see also

, 443 A.2d 
he can afford to pay[,] and how he should pay it.”  
1192, 1192-1193 (Pa. Super. 1982); 
 42 Pa.C.S.A. § 9763(b)(10) (“[t]he court 
may attach any of the following conditions upon the defendant as it deems necessary: . . 
. [t]o make restitution of the fruits of the crime or to make reparations, in an affordable 
amount and on a schedule that the defendant can afford to pay, for the loss or damage 
caused by the crime”).
2. Non-Delegation

 

Also implicit in Rule 705.1 (and required by Pennsylvania case law), when restitution 
 
is imposed as a condition of probation, the trial court must itself determine the specifics 
of the restitution order, such as the amount and manner of restitution.  The trial court 
may not delegate this duty to an agency, such as a probation or parole department.  The 
Pennsylvania Superior Court held:

Even  if  [the  restitution  order]  were  a  condition  of  probation,  the 
sentencing  court  bears  the  duty  of  determining  the  specifics  of 
restitution.  The court is not free to delegate these duties to an agency.  
Here, the trial court improperly permitted the Fulton County Probation 
Department to determine the amount and recipients of restitution. . . . 
[T]his restitution order amount[s] to an illegal sentence. . . .

Commonwealth  v.  Deshong

see also Commonwealth v. Erb

,  850  A.2d  712,  716  (Pa.  Super.  2004)  (quotations  and 
, 428 A.2d 574, 582 (Pa. Super. 1981) 
citations omitted); 
(“it was the lower court’s obligation to determine what loss or damage appellant had 
caused, and what amount of restitution he could afford to pay, and how he should pay it.  
The court was not free to delegate these duties to an agency”).  

Lawson v. Commonwealth, Bd. of Probation & Parole

 
Relatedly,  the  Pennsylvania  Board  of  Probation  and  Parole  “has  no  authority  to 
impose . . . restitution nor does it have the authority to excuse or eliminate the imposition 
of . . . restitution since the Board is without the authority to alter a judicially imposed 
sentence.”  
, 524 A.2d 1053, 1056 
(Pa. Cmwlth. 1987).
3. Non-Waivable

Commonwealth v. Deshong

The  trial  court’s  failure  to  specify  restitution  at  the  time  of  sentencing,  and/or 
 
the  court’s  failure  to  determine  the  defendant’s  ability  to  pay  restitution,  and/or  the 
court’s  delegation  of  the  restitution  amount  to  an  agency  will  all  result  in  an  illegal 
Commonwealth  v.  Gentry
, 850 A.2d 712, 716 (Pa. Super. 2004).  “[A] 
sentence.  See 
criminal  defendant  cannot  agree  to  an  illegal  sentence.”   
, 
101  A.3d  813,  819  (Pa.  Super.  2014).    Therefore,  even  if  the  defendant  agrees,  as 
part  of  a  plea  agreement,  to  deferral  of  the  restitution  amount  “as  determined  by”  a 
25      Chapter 3      

Restitution as a Condition of Probation

Deshong

probation department or agrees to pay a restitution amount absent any indication of 
c.f.  Commonwealth  v.  Ford,
ability to pay, the defendant’s sentence is still illegal.  
, 850 A.2d at 713-716; 
  217  A.3d  824,  825  and  829  (Pa.  2019)  (holding  that  “a 
defendant’s mere agreement to pay a specific fine does not constitute evidence that he is 
or will be able to satisfy the financial obligation” to pay the fine; “[42 Pa.C.S.A. §] 9726(c) 
does not put the burden on defendants to inform the court that they might have trouble 
paying a fine.  Instead, it instructs sentencing courts not to impose a fine absent record 
evidence of the defendant’s ability to pay”).  Further, since the sentence is illegal, any 
claim challenging the illegal sentence “cannot be waived.”  
III. BURDEN OF PROOF

 850 A.2d at 716.

Deshong,

see  also  Commonwealth  v.  Hall

Commonwealth v. Griffiths
“An  order  of  restitution  is  a  sentence,  whether  it  is  imposed  as  a  direct  sentence 
 
, 15 A.3d 73, 77 (Pa. Super. 
or as a condition of probation.”  
2010); 
,  80  A.3d  1204,  1211  (Pa.  2013)  (“questions 
implicating  the  trial  court’s  power  to  impose  restitution  concern  the  legality  of  the 
sentence”).  Therefore, regardless of whether restitution is imposed as a direct sentence 
(under 18 Pa.C.S.A. § 1106) or as a condition of probation (under 42 Pa.C.S.A. § 9763), 
the following holds true:

Commonwealth v. Boone,

Commonwealth  v.  Pleger,

It  is  the  Commonwealth’s  burden  of  proving  its  entitlement  to 
restitution. 
 862 A.2d 639, 643 (Pa. Super. 
2004)  (stating  that  the  amount  of  restitution  must  be  supported 
by  the  record).    When  fashioning  an  order  of  restitution,  the  lower 
court  must  ensure  that  the  record  contains  the  factual  basis  for  the 
appropriate  amount  of  restitution. 
  934 
A.2d 715, 720 (Pa. Super. 2007).  The dollar value of the injury suffered 
by the victim as a result of the crime assists the court in calculating the 
Commonwealth v. Rush,
 The amount of the restitution 
appropriate amount of restitution.  
award may not be excessive or speculative. 
 
909  A.2d  805,  810  (Pa.  Super.  2006).  .  .  .    [It  is  necessary  that  the 
amount  of  restitution]  be  determined  under  the  adversarial  system 
with  considerations  of  due  process.”   
,  854 
A.2d 1280, 1282 (Pa. Super. 2004).

Commonwealth  v.  Ortiz

Id. 

8
 997 A.2d 1181, 1183 (Pa. Super. 2010).

Commonwealth v. Atanasio,

Pennsylvania  statutory  and  case  law  is  silent  on  the  specific  burden  of  proof  the 
 
Commonwealth  bears  to  support  a  restitution  award.    However,  a  review  of  the  case 
law indicates that the accepted procedure in Pennsylvania for imposing restitution as 
a  condition  of  probation  is  to  allow  judges  to  determine,  by  a  preponderance  of  the 
evidence, all of the direct and indirect losses and damages caused by the defendant and 
8    The above quotation was specifically concerned with restitution imposed as a direct sentence under 18 Pa.C.S.A. § 1106.  We have tailored 
to then use this as the basis for any restitution order.  

the quotation to the matter at hand:  restitution imposed as a condition of probation. 

26      Chapter 3      

Restitution as a Condition of Probation

see  also  id.

In the Reporters’ Note to the proposed final draft of Model Penal Code:  Sentencing 
 
§ 6.04A (“Victim Restitution”), the reporters declare:  “[m]ost judicial authorities have 
applied  the  preponderance-of-the-evidence  standard  [to  proving  a  restitution  award] 
even in the absence of statutory command.”  MPC: Sentencing § 6.04A PFD, Reporters’ 
  at  Reporters’  Note  (d)  (“the  lower  courts  are  in  near-universal 
Note  (k); 
accord  that  criminal  restitution  falls  outside  [
  530  U.S.  466 
(2000)] requirements”).  Moreover, the proposed final draft of § 6.04A provides:  “[t]he 
sentencing court shall determine the amount of economic losses [for victim restitution] 
by a preponderance of the evidence.”  MPC: Sentencing § 6.04A(9) PFD.  Nevertheless, 
the reporters acknowledge:

Apprendi  v.  New  Jersey,

Apprendi v. New Jersey

Blakely  v.  Washington

Recent Supreme Court cases, including 
United States v. Booker
U.S.  466  (2000), 

, 530 
,  542  U.S.  296  (2004),  and 
, 543 U.S. 220 (2005), raise the possibility that 
the Sixth Amendment and Due Process Clause require questions of fact 
necessary to support restitution awards to be decided by juries under 
the  standard  of  proof  beyond  a  reasonable  doubt.  Nearly  all  lower 
courts  have  concluded  that  jury  factfinding  is  not  constitutionally 
required in this setting, but the Supreme Court has not spoken to the 
question.

MPC: Sentencing § 6.04A PFD, Reporters’ Note (d).

Of  further  note,  Pennsylvania  case  law  holds  that  “[a]n  order  of  restitution  is  a 
see also Commonwealth 
Commonwealth v. Griffiths
sentence,  whether  it  is  imposed  as  a  direct  sentence  or  as  a  condition  of  probation.”  
v. Hall
, 15 A.3d 73, 77 (Pa. Super. 2010); 

Hall

, 80 A.3d 1204, 1211 (Pa. 2013) (“questions implicating the trial court’s power to 
impose restitution concern the legality of the sentence”).  Pennsylvania law also provides 
that “provisions for payment of monetary sums as the result of criminal convictions are 
penal  in  nature.”   
,  80  A.3d  at  1212.    Notwithstanding  these  holdings,  it  appears 
that the accepted procedure in Pennsylvania for imposing restitution as a condition of 
probation  is  to  allow  judges  to  determine,  by  a  preponderance  of  the  evidence,  all  of 
the direct and indirect losses and damages caused by the defendant and to use this as 
the basis for any restitution order.  Given that indirect damages are – by definition – not 
“submitted  to  a  jury[]  and  proved  beyond  a  reasonable  doubt,”  an  argument  may  be 
made that Pennsylvania’s procedure for imposing restitution as a condition of probation 
(if not its entire structure of permitting restitution on the basis of indirect damages) is 
unconstitutional.  
IV. TRIAL COURT CONSIDERATIONS

, 530 U.S. at 490.

See Apprendi

 
The Commonwealth bears the burden of establishing its entitlement to restitution 
and  the  trial  court  has  the  obligation  of  determining  the  amount  of  restitution  the 
defendant must pay and the specifics of any restitution order.  When imposing restitution 
27      Chapter 3      

Restitution as a Condition of Probation

as a condition of probation, the trial court must determine and/or state in the sentencing 
order:

1) All of the direct and indirect damages caused by the defendant;

2) What amount of restitution the defendant can afford to pay; 

3)  What  amount  of  restitution  the  defendant  must  pay,  “so  that  the  defendant  will 
understand the egregiousness of his conduct, be deterred from repeating this conduct, 
and be encouraged to live in a responsible way” (this amount is not necessarily equal to 
the amount of restitution the defendant can afford to pay – it may be less (but it may not 
be more));

4) The details of a payment plan, if any, including when payment is to begin;

5) The identity of the payee(s);

6) To which officer or agency the restitution payment shall be made; 

7) Whether any restitution has been paid and in what amount; and,

8)  Whether  the  restitution  has  been  imposed  as  a  part  of  the  sentence  and/or  as  a 
condition of probation.
A. Direct and Indirect Damages 

As noted above, when a trial court imposes restitution as a condition of probation, 
 
the trial court has the “flexibility to determine all the direct and indirect damages caused 
by a defendant and then [is] permit[ted] to order restitution so that the defendant will 
understand the egregiousness of his conduct, be deterred from repeating this conduct, 
, 617 A.2d 
and be encouraged to live in a responsible way.”  
Commonwealth v. Harriott
702,  707  (Pa.  1992)  (regarding  restitution  imposed  as  a  condition  of  probation); 
, 919 A.2d 234, 238 (Pa. Super. 2007) (regarding restitution 

Commonwealth v. Harner

imposed as a condition of (the now-repealed) county intermediate punishment).

 
Examples regarding restitution imposed for direct damages are found in Chapter 2 
of this book; examples regarding restitution imposed for indirect damages are found in 
Section I.J.4 of this Chapter.
B. Defendant’s Ability to Pay 

1. May not exceed the total amount of direct and indirect damages

28      Chapter 3      

Restitution as a Condition of Probation

 Commonwealth v. Griffiths
“An  order  of  restitution  is  a  sentence,  whether  it  is  imposed  as  a  direct  sentence 
 
or as a condition of probation.” 
, 15 A.3d 73, 77 (Pa. Super. 
2010).  “Because restitution is a sentence, the amount ordered must be supported by 
, 722 A.2d 
the record; it may not be speculative or excessive.”  
157, 159 (Pa. Super. 1998). Thus, in imposing restitution as a condition of probation, 
the trial court must ensure that the amount awarded does not exceed the total amount 
of direct and indirect damages proved by the Commonwealth – even if the defendant’s 
“ability to pay” exceeds the total amount of direct and indirect damages.
2. May not exceed the defendant’s ability to pay

Commonwealth v. Wright

Moreover, when restitution is imposed as a condition of probation, the restitution 
,  722  A.2d  at  159 

 
amount  must  not  “exceed  the  [defendant’s]  ability  to  pay.”   
(quotations and citations omitted).  

Wright

 
Although an order of restitution imposed as a condition of probation may not exceed 
the defendant’s ability to pay, “an order of restitution need not be in an amount which 
can be paid from a defendant’s current earnings.” 
, 595 A.2d 
1180, 1189 (Pa. Super. 1991).  The Superior Court explained:

Commonwealth v. Boyles

We  recognize  that,  in  most  cases,  when  a  court  sentences  the 
defendant  to  a  period  of  incarceration  and  the  defendant  is  serving 
the period of incarceration, his income will frequently be drastically 
diminished  and  consequently  he  may  not  be  able  immediately  to 
satisfy the sentence of restitution.  In fact, some defendants, at the time 
of  sentencing,  will  have  already  been  incarcerated  for  a  substantial 
period of time, and will have no income from which to pay restitution.  
However,  a  defendant’s  inability  to  presently  pay  restitution  at  the 
time  of  sentencing  or  immediately  thereafter  does  not  impede  the 
court’s authority to sentence the defendant to pay restitution if at the 
time of sentencing the record establishes the future possibility of the 
defendant satisfying the sentence of restitution.  “There is no rule of 
law which holds that a defendant can be ordered to make restitution 
Commonwealth  v.  Gallowa
only if he has a present financial ability to make immediate restitution.”  
y,  448  A.2d  568,  579  (Pa.  Super.  1982) 
(Wieand, J., concurring).  Thus, in determining the defendant’s ability 
to pay an  order of restitution, the court can consider the education, 
vocational training, and employment history of the defendant as they 
may affect the defendant’s future ability to make restitution in addition 
to considering any assets which defendant may have at present or is 
likely to acquire in the future and any present income.

Commonwealth  v.  Mourar,
grounds

vacated  on  other 
see  also  Commonwealth  v. 

,  534  A.2d  1050  (Pa.  1987)  (emphasis  omitted); 

  504  A.2d  197,  207  (Pa.  Super.  1986), 

29      Chapter 3      

Restitution as a Condition of Probation

Stetler,

Commonwealth v. Celane

 95 A.3d 864, 888-889 (Pa. Super. 2014) (holding that, “[e]ven were the court 
required to consider Defendant’s ability to pay, evidence well supports the conclusion 
that Defendant’s education and business experience, reflected in Defendant’s testimony 
and  that  of  character  witnesses,  render  him  able  to  comply  with  the  restitution 
order”); 
, 457 A.2d 509, 514 (Pa. Super. 1982) (holding that, 
notwithstanding the defendant’s bankruptcy, the trial court properly determined that the 
defendant had the ability to pay restitution in the amount of $209,830.63, “based upon 
his  education  and  experience,  his  representation  of  his  on-going  success  and  various 
business operations, all of which reflect on his potential capacity, giving consideration 
to the fact that he could be eligible for parole at the expiration of his minimum sentence 
and furlough or work release in one-half of the minimum;” the Superior Court, however, 
remanded because the trial court failed to specify “the appropriate method and timing 
for payment of restitution by [the defendant]”).

“[T]he  true  rehabilitative  goal  of  restitution  is  defeated  only  when  the  payments 
 
ordered  by  the  court  are  so  unreasonable  in  view  of  the  defendant’s  financial 
circumstances and ability to work that despite good faith efforts, the defendant cannot 
hope to comply.”  

, 595 A.2d at 1189 (quotations and citations omitted).  

Boyles

a. Sacrifices may be required

 

The Pennsylvania Superior Court has stated:

In  many  instances  .  .  .  it  will  be  necessary  for  a  defendant  to  make 
substantial sacrifices in order to make restitution to the victims of his 
crimes.  This is not an obstacle to an order requiring such restitution.  
Rather, where sacrifice is necessary, the probationer or parolee may 
learn to consider more carefully the consequences of his or her acts 
and thereby strengthen the offender’s sense of responsibility.  Thus, 
an order of restitution may properly require additional or alternative 
employment, a reduction of expenses, and even a temporary change 
in  lifestyle  in  order  to  achieve  that  sense  of  responsibility  which 
signals  effective  rehabilitation.    The  true  rehabilitative  purpose  of 
restitution is well served when a probationer or parolee is called upon 
to make reasonable sacrifices in order to compensate those who have 
sustained losses as a result of his criminal conduct.  The rehabilitative 
goal is defeated only when the payments ordered by the court are so 
unreasonable in view of the defendant’s financial circumstances and 
ability to work that, despite good faith efforts, the defendant cannot 
hope to comply.
Commonwealth v. Wood

, 446 A.2d 948, 950 (Pa. Super. 1982).

30      Chapter 3      

Restitution as a Condition of Probation

(1). Defendant may be required to sell property 

Commonwealth  v.  Madron

In 

 
,  the  trial  court  ordered  the  defendant  to  “make 
restitution jointly and severally with two co-defendants” to the victims, in the amount of 
$45,000.00.  On appeal, the defendant claimed that the restitution amount was excessive 
Commonwealth 
because “it cannot be paid from current income and will compel [the defendant] to sell a 
v. Madron, 
residence which she owns in order to make restitution to her victims.”  

488 A.2d 331, 332 (Pa. Super. 1985).  The Superior Court found this claim 

meritless.  It explained:

Where  the  defendant  owns  assets  in  an  amount  sufficient  to  make 
restitution,  he  or  she  may  be  called  upon  to  sell  or  borrow  on  the 
security of those assets and use the proceeds to make restitution. The 
rights of a victim to be made whole will not be made subservient to 
the criminal’s desire to retain an unencumbered title to capital assets.

In  the  instant  case,  the  record  discloses  that  [the  defendant]  is 
the  owner  of  a  residential  property  whose  value  is  approximately 
$60,000,  with  a  mortgage  of  less  than  $7,500.00.  This  suggests  that 
[the defendant’s] financial circumstances are adequate to allow her to 
make restitution for the losses of $45,000 which her criminal conduct 
caused  to  others.    Finding  no  abuse  of  discretion  on  the  part  of  the 
sentencing court, the judgment of sentence will be affirmed.

Id

. at 332-333.  

C. Determining the Total Amount of Restitution

 

As the Pennsylvania Supreme Court explained:

Restitution may [] be imposed as a condition of probation and, under 
such circumstances, the courts are traditionally and properly vested 
with  a  broader  measure  of  discretion  in  fashioning  conditions  of 
probation  appropriate  to  the  circumstances  of  the  individual  case. 
The  reason  for  this  attitude  stems  from  the  purpose  of  imposing 
conditions  of  probation  which  are  primarily  aimed  at  rehabilitating 
and reintegrating a law breaker into society as a law-abiding citizen. 
This is deemed a constructive alternative to imprisonment.

. . .

Commonwealth  v. 

Walton
As  [the  Pennsylvania  Supreme  Court]  noted  in  [

,  397  A.2d  1179,  1185  (Pa.  1979),]  the  practice  of  ordering 
restitution or reparation as such a condition is widely established and 

31      Chapter 3      

Restitution as a Condition of Probation

highly favored in the law, as an aid both to the criminal in achieving 
rehabilitation and to his victim in obtaining some measure of redress. 

Such sentences are encouraged and give the trial court the flexibility to 
determine all the direct and indirect damages caused by a defendant 
and then permit the court to order restitution so that the defendant 
will  understand  the  egregiousness  of  his  conduct,  be  deterred  from 
repeating this conduct, and be encouraged to live in a responsible way.

Commonwealth v. Harner,

 617 A.2d 702, 706-707 (Pa. 1992) (some citations omitted).

 
From  the  above  excerpt,  it  is  apparent  that  trial  courts  retain  broad  discretion 
to  impose  restitution  as  a  condition  of  probation  and,  correspondingly,  retain  broad 
discretion  to  fashion  an  appropriate  restitution  amount,  “so  that  the  defendant  will 
understand the egregiousness of his conduct, be deterred from repeating this conduct, 
and be encouraged to live in a responsible way.”  

 at 707.  

Id.

Therefore,  while  the  total  restitution  amount  may  not  exceed  the  total  amount 
 
of  direct  and  indirect  damages  or  the  defendant’s  ability  to  pay,  the  trial  court  is  not 
obligated  to  order  restitution  for  the  full  amount  of  the  defendant’s  ability  to  pay.  
Instead, if the trial court, in its discretion, determines that a lesser amount of restitution 
will make it “so that the defendant will understand the egregiousness of his conduct, be 
deterred from repeating this conduct, and be encouraged to live in a responsible way,” 
the trial court has the discretion to impose restitution at this lesser amount.

The  trial  court  must  then  expressly  state,  in  the  sentencing  order,  “the  amount  of 
restitution ordered.”  Pa.R.Crim.P. 705.1.
D. Determining “the details of a payment plan, if any, including when payment is 
to begin”

See 

 
The trial court must determine the method and manner of restitution payment.  
Pa.R.Crim.P. 705.1. As is true with everything else surrounding restitution orders, “the 
sentencing court bears the duty of determining the specifics of restitution,” including 
the method and manner of payment.  
, 850 A.2d 712, 716 
(Pa. Super. 2004).  “The court [is] not free to delegate these duties to an agency.”  

Commonwealth v. Deshong

Id.

The trial court must then expressly state, in the sentencing order, “the details of a 

 
payment plan, if any, including when payment is to begin.”  Pa.R.Crim.P. 705.1.
E. Identifying the Payee(s)

The  trial  court  must  expressly  state,  in  the  sentencing  order,  “the  identity  of  the 

 
32      Chapter 3      

Restitution as a Condition of Probation

payee(s).”  Pa.R.Crim.P. 705.1.
F. Declaring “to which officer or agency the restitution payment shall    
    be made”

The trial court must specify, in the sentencing order, “to which officer or agency the 

 
restitution payment shall be made.”  Pa.R.Crim.P. 705.1.

42 Pa.C.S.A. § 9728 provides, in full:

§ 9728.  Collection of restitution, reparation, fees, costs, fines and 
penalties

(a) General rule.--

(1)  Except  as  provided  in  subsection  (b)(5),  all  restitution, 
reparation,  fees,  costs,  fines  and  penalties  shall  be  collected  by 
the  county  probation  department  or  other  agent  designated  by 
the  county  commissioners  of  the  county  with  the  approval  of  the 
president  judge  of  the  county  for  that  purpose  in  any  manner 
provided by law. However, such restitution, reparation, fees, costs, 
fines and penalties are part of a criminal action or proceeding and 
shall  not  be  deemed  debts.  A  sentence,  pretrial  disposition  order 
or  order  entered  under  section  6352  (relating  to  disposition  of 
delinquent  child)  for  restitution,  reparation,  fees,  costs,  fines  or 
penalties shall, together with interest and any additional costs that 
may  accrue,  be  a  judgment  in  favor  of  the  probation  department 
upon the person or the property of the person sentenced or subject 
to the order.

(2)  In  accordance  with  section  9730.1  (relating  to  collection  of 
court costs, restitution and fines by private collection agency), the 
collection of restitution, reparation, fees, costs, fines and penalties 
under  this  section  may  be  referred  to  a  private  collection  agency. 
Any county that does not engage the services of a private collection 
agency  shall  operate  a  collections  enforcement  unit  consistent 
with  the  provisions  of  paragraph  (1)  and  dedicated  to  carrying 
out  the  duties  therein  provided.  Statistical  information  relating 
to  the  amount  of  restitution  collected  by  the  county  probation 
department or any agent designated by the county commissioners 
of the county with the approval of the president judge of the county 
shall  be  provided  to  the  Pennsylvania  Commission  on  Crime  and 
Delinquency  and  Pennsylvania  Commission  on  Sentencing  on 
an  annual  basis.  The  statistical  information  shall  be  sufficiently 

33      Chapter 3      

Restitution as a Condition of Probation

detailed  so  as  to  show  compliance  with  the  requirements  of  this 
section, including subsection (g.1).

 

 

(b) Procedure.--

(1)  The  county  clerk  of  courts  shall,  upon  sentencing,  pretrial 
disposition  or  other  order,  transmit  to  the  prothonotary  certified 
copies of all judgments for restitution, reparation, fees, costs, fines 
and  penalties  which,  in  the  aggregate,  exceed  $1,000,  and  it  shall 
be the duty of each prothonotary to enter and docket the same of 
record in his office and to index the same as judgments are indexed, 
without requiring the payment of costs as a condition precedent to 
the entry thereof.

(2)  The  clerk  of  courts,  in  consultation  with  other  appropriate 
governmental  agencies,  may  transmit  to  the  prothonotary  of  the 
respective county certified copies of all judgments for restitution, 
reparation, fees, costs, fines and penalties which, in the aggregate, 
do not exceed $1,000, and, if so transmitted, it shall be the duty of 
each  prothonotary  to  enter  and  docket  the  same  of  record  in  his 
office  and  to  index  the  same  as  judgments  are  indexed,  without 
requiring the payment of costs as a condition precedent to the entry 
thereof.

(3)  The  county  clerk  of  courts  shall,  upon  sentencing,  pretrial 
disposition or other order, transmit to the Department of Probation 
of  the  respective  county  or  other  agent  designated  by  the  county 
commissioners  of  the  county  with  the  approval  of  the  president 
judge of the county and to the county correctional facility to which 
the offender has been sentenced or to the Department of Corrections, 
whichever  is  appropriate,  copies  of  all  orders  for  restitution  and 
amendments or alterations thereto, reparation, fees, costs, fines and 
penalties. This paragraph also applies in the case of costs imposed 
under section 9721(c.1)(relating to sentencing generally).

(4)  The  total  amount  for  which  the  person  is  liable  pursuant  to 
this section may be entered as a judgment upon the person or the 
property of the person sentenced or ordered, regardless of whether 
the amount has been ordered to be paid in installments.

(5) Deductions shall be as follows:

(i)  The  Department  of  Corrections  shall  make  monetary 
deductions of at least 25% of deposits made to inmate wages and 
personal accounts for the purpose of collecting restitution, costs 

34      Chapter 3      

Restitution as a Condition of Probation

imposed under section 9721(c.1), filing fees to be collected under 
section  6602(c)  (relating  to  prisoner  filing  fees)  and  any  other 
court-ordered obligation.

(ii) The county correctional facility to which the offender has been 
sentenced shall:

(A)  Be  authorized  to  make  monetary  deductions  from  inmate 
wages  and  personal  accounts  for  the  purpose  of  collecting 
restitution, costs imposed under section 9721(c.1), filing fees to 
be collected under section 6602(c) and any other court-ordered 
obligation or fees owed to the county jail or prison related to the 
inmate’s incarceration.

(B)  Deduct  an  amount  sufficient  to  satisfy  any  outstanding 
restitution,  costs  imposed  under  section  9721(c.1),  filing  fees 
to  be  collected  under  section  6602(c)  or  other  court-ordered 
obligations before releasing funds on deposit.

(iii) Any amount deducted under this paragraph shall be in addition 
to  the  full  amount  authorized  to  be  collected  pursuant  to  any 
order for support. Any amount deducted shall be transmitted to 
the probation department of the county or other agent designated 
by the county commissioners with the approval of the president 
judge of the county in which the offender was convicted.

(iv) The Department of Corrections and each county correctional 
facility  shall  develop  guidelines  relating  to  its  responsibilities 
under this paragraph. The guidelines shall  be incorporated into 
any contract entered into with a correctional facility.

(b.1) Restitution file.--

Upon receipt of each order from the clerk of 
courts as provided in subsection (b)(3), the department of probation 
of  the  respective  county  or  other  agent  designated  by  the  county 
commissioners of the county with the approval of the president judge 
of the county shall open a restitution file for the purposes of recording 
the amounts of restitution deducted by the Department of Corrections 
or  county  correctional  facility  or  collected  by  the  department  of 
probation or the agent designated by the county commissioners of the 
county with the approval of the president judge of the county.
(b.2) Mandatory payment of costs.--

Notwithstanding any provision 
of  law  to  the  contrary,  in  the  event  the  court  fails  to  issue  an  order 
under subsection (a) imposing costs upon the defendant, the defendant 
shall nevertheless be liable for costs, as provided in section 9721(c.1), 

35      Chapter 3      

Restitution as a Condition of Probation

unless  the  court  determines  otherwise  pursuant  to  Pa.R.Crim.P.  No. 
706(C) (relating to fines or costs). The absence of a court order shall 
not affect the applicability of the provisions of this section.
(c)  Period  of  time.--

Notwithstanding  section  6353  (relating  to 
limitation  on  and  change  in  place  of  commitment)  or  18  Pa.C.S.  § 
1106(c)(2) (relating to restitution for injuries to person or property), 
the period of time during which such judgments shall have full effect 
may exceed the maximum term of imprisonment to which the offender 
could have been sentenced for the crimes of which he was convicted 
or  the  maximum  term  of  confinement  to  which  the  offender  was 
committed.
(d) Priority.--

Notwithstanding any other statutory provisions in this 
or any other title, any lien obtained under this section shall maintain 
its priority indefinitely and no writ of revival need be filed.
(e) Preservation of assets subject to restitution.--

Upon application 
of  the  Commonwealth,  the  court  may  enter  a  restraining  order  or 
injunction, require the execution of a satisfactory performance bond 
or take any other action to preserve the availability of property which 
may be necessary to satisfy an anticipated restitution order under this 
section:

(1) upon the filing of a criminal complaint, information or indictment 
charging a criminal violation or a petition alleging delinquency for 
which  restitution  may  be  ordered  and  alleging  that  the  property 
with respect to which the order is sought appears to be necessary 
to satisfy such restitution order and judgment; and

(2) if, after notice to persons appearing to have an interest in the 
property  and  an  opportunity  for  a  hearing,  the  court  determines 
that:

(i) there is a substantial probability that:

(A) the Commonwealth will prevail on the underlying criminal 
charges or allegation of delinquency;

(B) restitution will be ordered exceeding $10,000 in value;

(C)  the  property  appears  to  be  necessary  to  satisfy  such 
restitution order; and
(D) failure to enter the order will result in the property being 
destroyed,  removed  from  the  jurisdiction  of  the  court  or 
otherwise  made  unavailable  for  payment  of  the  anticipated 

36      Chapter 3      

Restitution as a Condition of Probation

restitution order; and

(ii) the need to preserve the availability of the property through 
the entry of the requested order outweighs the hardship on any 
party against whom the order is to be entered.

(f)  Temporary  restraining  order.--

A 

temporary  restraining 
order  under  subsection  (e)  may  be  entered  upon  application  of 
the  Commonwealth  without  notice  or  opportunity  for  a  hearing, 
whether  or  not  a  complaint,  information,  indictment  or  petition 
alleging delinquency has been filed with respect to the property, if the 
Commonwealth demonstrates that there is probable cause to believe 
that the property with respect to which the order is sought appears 
to be necessary to satisfy an anticipated restitution order under this 
section and that provision of notice will jeopardize the availability of 
the  property  to  satisfy  such  restitution  order  and  judgment.  Such  a 
temporary order shall expire not more than ten days after the date on 
which it is entered, unless extended for good cause shown or unless 
the  party  against  whom  it  is  entered  consents  to  an  extension  for  a 
longer period. A hearing requested concerning an order entered under 
this subsection shall be held at the earliest possible time and prior to 
the expiration of the temporary order.
(g)  Costs,  etc.--

Any  sheriff’s  costs,  filing  fees  and  costs  of  the 
county  probation  department,  clerk  of  courts  or  other  appropriate 
governmental  agency,  including,  but  not  limited  to,  any  reasonable 
administrative  costs  associated  with  the  collection  of  restitution, 
transportation costs and other costs associated with the prosecution, 
shall be borne by the defendant and shall be collected by the county 
probation  department  or  other  appropriate  governmental  agency 
along  with  the  total  amount  of  the  judgment  and  remitted  to  the 
appropriate agencies at the time of or prior to satisfaction of judgment.
(g.1)  Payment.--

No  less  than  50%  of  all  moneys  collected  by  the 
county probation department or other agent designated by the county 
commissioners of the county with the approval of the president judge 
of  the  county  pursuant  to  subsection  (b)(1)  and  deducted  pursuant 
to  subsection  (b)(5)  shall,  until  the  satisfaction  of  the  defendant’s 
restitution  obligation,  be  used  to  pay  restitution  to  victims.  Any 
remaining moneys shall be used to pay fees, costs, fines, penalties and 
other court-ordered obligations.
(h)  Effect  on  contempt  proceedings.--

contempt proceedings mandated by 18 Pa.C.S. § 1106(f).

This  section  shall  not  affect 

37      Chapter 3      

Restitution as a Condition of Probation

42 Pa.C.S.A. § 9728.
G. Declaring “whether any restitution has been paid and in what amount”

The trial  court  must  determine and  then expressly  state, in  the  sentencing order 

 
“whether any restitution has been paid and in what amount.”  Pa.R.Crim.P. 705.1.
H. Declaring “whether the restitution has been imposed as a part of  the sentence 
and/or as a condition of probation” 

 
The trial court must expressly state, in the sentencing order, “whether the restitution 
has  been  imposed  as  a  part  of  the  sentence  and/or  as  a  condition  of  probation.”  
Pa.R.Crim.P. 705.1.
V. STANDARD OF REVIEW UPON APPEAL

In re M.W.

, 725 A.2d 729 (Pa. 1999), the Pennsylvania Supreme Court held:  “[w]here 
In 
[] a challenge is directed to the trial court’s authority to impose restitution, it concerns 
In re 
the legality of the sentence; however, where the challenge is premised upon a claim that 
M.W.
the restitution order is excessive, it involves a discretionary aspect of sentencing.”  

, 725 A.2d 729, 731 n.4 (Pa. 1999).  

Commonwealth v. 
Thus, where the  claim  “challenge[s]  the  sentencing court’s statutory authority to 

 
Weir
impose restitution,” the claim attacks the legality of the sentence.  

appeal  granted

sua  sponte

Commonwealth v. Watley,

,  201  A.3d  163,  172  (Pa.  Super.  2018), 

,  215  A.3d  966  (Pa.  2019).  
  by 
“Legality  of  sentence  questions  are  not  waivable  and  may  be  raised 
en banc
 81 A.3d 108, 118 (Pa. 
[the Pennsylvania Superior] Court.”  
Super. 2013) (
).  “Issues relating to the legality of a sentence are questions of 
law.  [The Superior Court’s] standard of review over such questions is de novo and [the 
, 112 A.3d 1210, 1225 (Pa. 
Court’s] scope of review is plenary.”  
Super. 2015), 
, 149 A.3d 29 (Pa. 2016) 
(corrections omitted).

vacated on other grounds

Commonwealth v. Ali

Commonwealth v. Ali

, 

  Where  the  claim  “concede[s  statutory]  authority,  but  challenge[s]  the  court’s 
exercise of discretion in determining the appropriate amount of restitution,” the claim 
,  201  A.3d  at  172.    “Issues 
implicates  the  discretionary  aspects  of  a  sentence.   
challenging the discretionary aspects of sentencing must be raised in a post-sentence 
Commonwealth  v. 
motion or by raising the claim during the sentencing proceedings. Absent such efforts, 
Watson
an  objection  to  a  discretionary  aspect  of  a  sentence  is  waived.”   

Weir

,  835  A.2d  786,  791  (Pa.  Super.  2003)  (quotations,  citations,  and  corrections 
omitted).  Further, pursuant to statute, an appellant does not have an automatic right to 
 42 Pa.C.S.A. § 9781(b).  Instead, the 
appeal the discretionary aspects of a sentence. 
38      Chapter 3      

 See

Restitution as a Condition of Probation

appellant must petition the Pennsylvania Superior Court for permission to appeal the 
discretionary aspects of their sentence.  

Id.

 

As the Superior Court explained:

[t]o reach the merits of a discretionary sentencing issue, we conduct 
a four-part analysis to determine:  (1) whether appellant has filed a 
timely notice of appeal, Pa.R.A.P. 902, 903; (2) whether the issue was 
properly  preserved  at  sentencing  or  in  a  motion  to  reconsider  and 
modify sentence, Pa.R.Crim.P. 720 [and 708]; (3) whether appellant’s 
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a 
substantial question that the sentence appealed from is not appropriate 
under the Sentencing Code, [42 Pa.C.S.A.] § 9781(b).

Commonwealth v. Cook

, 941 A.2d 7, 11 (Pa. Super. 2007).

Commonwealth v. Marts

Commonwealth v. Zeigler,

 
“The  determination  of  whether  a  particular  case  raises  a  substantial  question  is 
to be evaluated on a case-by-case basis.  Generally, however, in order to establish that 
there is a substantial question, the appellant must show actions by the sentencing court 
inconsistent with the Sentencing Code or contrary to the fundamental norms underlying 
, 889 A.2d 608, 612 (Pa. Super. 2005) 
the sentencing process.” 
(citations omitted).  “When considering the merits of a discretionary aspects of sentencing 
claim, [the Superior Court] analyze[s] the sentencing court’s decision under an abuse of 
discretion standard.”  
 112 A.3d 656, 661 (Pa. Super. 2015).  
“An abuse of discretion is more than just an error of judgment and, on appeal, a trial 
court  will  not  be  found  to  have  abused  its  discretion  unless  the record  discloses that 
the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, 
, 424 A.2d 1325, 1328 (Pa. 1981) (quotations 
bias, or ill-will.”  
omitted).
VI. MODIFICATION

Commonwealth v. Lane

  When restitution is imposed as a condition of probation, the trial court possesses 
the statutory authority to modify the restitution condition “at any time.”  42 Pa.C.S.A. § 
9771(a) (“[t]he court has inherent power to at any time terminate continued supervision, 
lessen the conditions upon which an order of probation has been imposed or increase 
c.f. Commonwealth v. Dietrich,
the conditions under which an order of probation has been imposed upon a finding that a 
 
person presents an identifiable threat to public safety”); 
970  A.2d  1131,  1135  (Pa.  2009)  (“[t]he  plain  language  of  [18  Pa.C.S.A.]  §  1106(c)(3) 
provides courts with broad authority to modify restitution amounts at any time if the 
court  states  reasons  for  doing  so  as  a  matter  of  record.    18  Pa.C.S.  §  1106(c)(3).  .  .  .  
There is no statutory requirement the reasons for modification be undiscoverable at the 
time of sentencing.  Section 1106(c)(3)’s broad language indicates a legislative intent 
that courts have jurisdiction to modify restitution orders at any time without regard to 
39      Chapter 3      

Restitution as a Condition of Probation

Id.; cf.

when information should have been present for consideration. 
(emphasis omitted).

 42 Pa.C.S. § 5505”) 

In  terms  of  the  procedure  regarding  modification  or  revocation  of  an  order  of 

 
probation, Section 9771(d) declares:

(d)  Hearing  required.--

There  shall  be  no  revocation  or  increase  of 
conditions  of  sentence  under  this  section  except  after  a  hearing  at 
which the court shall consider the record of the sentencing proceeding 
together  with  evidence  of  the  conduct  of  the  defendant  while  on 
probation. Probation may be eliminated or the term decreased without 
a hearing.

42 Pa.C.S.A. § 9771(d).
VII. REVOCATION PROCEEDINGS - FAILURE TO PAY

 

  With  respect  to  the  revocation  of  probation,  the  Pennsylvania  Supreme  Court 
summarized:

[42  Pa.C.S.A.  §]  9771  allows  for  termination  of  supervision  or 
modification of the conditions of probation at any time. [42 Pa.C.S.A.] 
§  9771(a).  Revocation  of  probation,  however,  is  sanctioned  only 
Id.
“upon proof of the violation of specified conditions of the probation.” 
  §  9771(b)[].    If,  after  finding  a  violation,  the  court  revokes  a 
defendant’s probation, it may only resentence the defendant to a term 
of  incarceration  if  (1)  the  defendant  was  convicted  of  a  new  crime; 
(2) the defendant’s conduct makes it likely that he or she will commit 
a  new  crime  if  not  incarcerated;  or  (3)  incarceration  “is  essential 
to  vindicate  the  authority  of  the  court.”   
  §  9771(c).  A  hearing  is 
required before a court may revoke probation or increase the terms of 
a defendant’s probation, “at which the court shall consider the record 
of the sentencing proceeding together with evidence of the conduct of 
the defendant while on probation.” 

 § 9771(d).

Id.

Id.

Id.

 i.e.

We find the language of the pertinent statutory provisions to be clear 
and unambiguous. The law provides a general condition of probation 
, that the defendant 
– that the defendant lead “a law-abiding life,”
refrain  from  committing  another  crime. 
  §  97[63](b).  To  [ensure] 
that  general  condition  is  met,  or  to  assist  the  defendant  in  meeting 
that  general  condition,  the  order  must  also  include  certain  “specific 
conditions” from the list enumerated in section 97[63(b)]. Only upon 
Id. 
the violation of any of the “specified conditions” in the probation order 
(general or specific) may a court revoke the defendant’s probation. 

40      Chapter 3      

Restitution as a Condition of Probation

§ 9771(b). In other words, a court may find a defendant in violation 
of  probation  only  if  the  defendant  has  violated  one  of  the  “specific 
conditions”  of  probation  included  in  the  probation  order  or  has 
committed  a  new  crime.  The  plain  language  of  the  statute  does  not 
allow for any other result.

Commonwealth  v.  Foster,

9
footnotes omitted).
 

  214  A.3d  1240,  1249-1250  (Pa.  2019)  (emphasis  and 

  When restitution is ordered as a condition of probation, it is ordered as a specific 
  Therefore, the trial court may 
condition of probation under 42 Pa.C.S.A. § 9763(b)(10). 
revoke a defendant’s probation upon a finding that the defendant violated the “specific 
condition” of 42 Pa.C.S.A. § 9763(b)(10).  Nevertheless, as the United States Supreme 
Court has held:

10

in  revocation  proceedings  for  failure  to  pay  a  fine  or  restitution,  a 
sentencing court must inquire into the reasons for the failure to pay. If 
the probationer willfully refused to pay or failed to make sufficient bona 
fide efforts legally to acquire the resources to pay, the court may revoke 
probation  and  sentence  the  defendant  to  imprisonment  within  the 
authorized range of its sentencing authority.  If the probationer could 
not pay despite sufficient bona fide efforts to acquire the resources to 
do so, the court must consider alternate measures of punishment other 
than  imprisonment.  Only if alternate measures are not adequate to 
meet the State’s interests in punishment and deterrence may the court 
imprison a probationer who has made sufficient bona fide efforts to 
pay. To do otherwise would deprive the probationer of his conditional 
freedom simply because, through no fault of his own, he cannot pay 
the  fine.  Such  a  deprivation  would  be  contrary  to  the  fundamental 
fairness required by the Fourteenth Amendment.

Bearden v. Georgia

, 461 U.S. 660, 672-673 (1983).

Bearden

 

In following 

, the Pennsylvania Superior Court has declared:
Bearden

The holding [in 

9    As the Pennsylvania Superior Court has explained, following a probation revocation hearing, a trial court must engage in a two-pronged 
analysis.  First, the court must determine whether the facts warrant revocation. This step “involves a wholly retrospective factual question: 
whether the [ ] probationer has in fact acted in violation of one or more conditions of his parole or probation.”  Commonwealth v. Sims, 
770 A.2d 346, 349 (Pa. Super. 2001) (corrections omitted), quoting Gagnon v. Scarpelli, 411 U.S. 778, 784 (1973); see also 42 Pa.C.S.A. § 
9771(b) (“[t]he court may revoke an order of probation upon proof of the violation of specified conditions of the probation”).  “Only if it 
is determined that the [] probationer did violate the conditions does the second question arise: should the [] probationer be recommitted 
to prison or should other steps be taken to protect society and improve chances of rehabilitation?” Sims, 770 A.2d at 349 (corrections 
omitted), quoting Gagnon, 411 U.S. at 784; see also 42 Pa.C.S.A. § 9771(c). 

] has been interpreted by [the Pennsylvania 

10  We note that, in Commonwealth v. Hall, 80 A.3d 1204 (Pa. 2013), the Supreme Court declared that the “catchall” provision of 42 Pa.C.S.A. 
§ 9763(b) “is written in broader terms” than Section 9763(b)(10).  The Hall Court stated that the catchall “provision authorizes imposi-
tion of ‘any’ other conditions of probation reasonably related to the defendant’s rehabilitation, so long as they are not ‘unduly restrictive’ 
of the defendant’s constitutional liberty or conscience.  This subsection neither approves nor excludes monetary obligations and is not 
oriented towards the past in the same manner as the terms in subsection [(b)(10)].”  Hall, 80 A.3d at 1213.

41      Chapter 3      

Restitution as a Condition of Probation

Superior Court] as requiring the revocation court to inquire into the 
reasons for a defendant’s failure to pay and to make findings pertaining 
to the willfulness of the party’s omission.

.  .  .  A  proper  analysis  should  include  an  inquiry  into  the  reasons 
surrounding  the  probationer’s  failure  to  pay,  followed  by  a 
determination  of  whether  the  probationer  made  a  willful  choice 
not to pay. . . .  After making those determinations, if the court finds 
the  probationer  “could  not  pay  despite  sufficient  bona  fide  efforts 
to  acquire  the  resources  to  do  so,”  the  court  should  then  consider 
alternatives to incarceration in accordance with

 Bearden

.

see  also 

Commonwealth  v.  Eggers
Commonwealth  v.  Ballard

,  742  A.2d  174,  175-176  (Pa.  Super.  1999); 
,  814  A.2d  1242,  1247  (Pa.  Super.  2003)  (holding  that  the 
trial  court  erred  when  it  revoked  the  defendant’s  probation  for  “failure  to  pay  fines, 
costs,  and  restitution,”  where  the  trial  court  “made  no  inquiry  into  [the  defendant’s] 
ability to pay, the reasons for his failure to pay, whether his failure to pay was willful, and 
if willful, whether any alternatives to incarceration were proper”).

42      Chapter 3      

Restitution in Juvenile Court

Chapter Four

Table of Contents

Restitution in Juvenile Court

I.    RESTITUTION IN JUVENILE COURT ...................................................................................3

A.  Foundational Principles of the Juvenile Act ......................................................3

B.  Basic Principles of Restitution in the Juvenile Act  .........................................3

C.  Statutory Basis for Imposing Restitution  ..........................................................4

D.  Policy Considerations in Ordering Restitution  ...............................................4  

II.    FACTORS IN DETERMINING RESTITUTION AMOUNT  ...............................................4

A.  Juvenile Court’s Broad Discretion in Determining Restitution  .................4

B. Factors Juvenile Court Should Consider in Ordering Restitution

      (Dublinski Factors) ....................................................................................................5

1.  Generally  .........................................................................................................5

2. Dublinski Factor No. 1: Amount of Loss

      Suffered by the Victim  ................................................................................5

3. Dublinski Factor No. 2: The Restitution Order Should Reflect

the Damage that the Victim Would Not Have Suffered “But For”

      the Juvenile’s Delinquent Act.  ..................................................................5

4.  Dublinski Factor No. 3: Juvenile’s Earning Capacity  .........................6

5. Dublinski Factor No. 4: Juvenile Court shall Impose the Type

      of Payment that will Best Serve the Needs of the Victim and  ..........  
      Capabilities of the Juvenile  .......................................................................6

C.  An Award of Restitution is Not an Award of Damages  ...................................6

D.  Facts in the Record to Support an Order of Restitution ................................7

E.  Impact of Criminal Statutes and Court Cases  ...................................................7

III.  DISPOSITIONAL COURT’S RESPONSIBILITIES  .............................................................7

A.  Restitution Hearing  ..................................................................................................7

B.  Restitution Order  ......................................................................................................8

C.  Parties to Whom Juvenile May Pay Restitution  ...............................................8

D.  Timeliness and Deferment of Restitution Order  ............................................9

E.  Restitution As Part of Probation Order  ..............................................................9

F.  Determination of Restitution for Intercounty Transfers  ...........................10

G. Retention of Jurisdiction Until Age 21 and then

      Judgment Against Juvenile  ..................................................................................10

1      Chapter 4      

Restitution in Juvenile Court

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

H.  Restitution Determined by Agreement  ..........................................................10

 

 

 

 

 

1.  Consent Decree ...........................................................................................10

2.  Informal Adjustment  ................................................................................10

3.  Plea Agreement  ..........................................................................................11

4.  Juvenile Court’s Discretion to Hold a Hearing  .................................11

5.  Victim Offender Conferencing  ...............................................................11

IV.  Parental Participation and Liability  ............................................................................11

A.  Parental Participation in Juvenile’s Restitution Obligation  .....................11

B.  Liability of Parents for Juvenile’s Delinquent Acts 

      that are Tortious  .....................................................................................................12

V.  Restitution Fund  ..................................................................................................................12

A.  Contribution  ............................................................................................................12

B.  Guidelines  .................................................................................................................13

C.  Judgment for Unpaid Restitution  ......................................................................13

VI.  Collection pf Restitution  ..................................................................................................13

A.  Probation Department  .........................................................................................13

B.  Procedure for Collection of Restitution Order  .............................................13

C.  Default in Payment  .................................................................................................14

D.  Judgment May be Entered  ...................................................................................14

VII.  Proposed Amendment of Pa.R.J.C.P. 515 and 610  ..................................................14

VIII.  Appellate Review  ............................................................................................................14

A.  Standard of Review  ................................................................................................14

B.  Abuse of Discretion  ...............................................................................................15

C.  Claims Waived on Appeal  .....................................................................................15

IX.  Best Practices and Considerations When Ordering 

        Restitution in Juvenile Cases  .........................................................................................15

2      Chapter 4      

1.  This foundation of the Juvenile Act is rooted in the philosophy of “restorative 
justice,”  which  gives  priority  to  repairing  the  harm  done  to  crime  victims  and 
communities,  and  which  defines  offender  accountability  in  terms  of  assuming 
responsibility and taking action to repair harm. The “balanced attention” mandates 
in the Juvenile Act provide the framework for implementing restorative justice in 
Pennsylvania’s juvenile justice system.

2.  Also at the foundation of this mandate is the concept that crime victims and 
the community, as well as juvenile offenders, should receive balanced attention and 
gain  tangible  benefits  from  their  interactions  with  Pennsylvania’s  juvenile  justice 
system.
B.  Basic Principles of Restitution in the Juvenile Act

1.  The Juvenile Act authorizes a judge who adjudicates a child delinquent to 
, probation, commitment to 

enter an order of disposition, which includes, 
an institution for delinquent juveniles, and restitution. 42 Pa.C.S. § 6352(a).

inter alia

Id.

.  The disposition of the child shall be consistent with “the protection of the 
public interest and best suited to the child’s treatment, supervision, rehabilitation 
and welfare.” 

 

3.  The disposition shall also be “appropriate to the individual circumstances of 
the child’s case” and “provide balanced attention to the protection of the community, 
the imposition of accountability for the offenses committed, and the development of 
competencies to enable the child to become a responsible and productive member 
of the community.” 

Id.

4.  When considering whether to order that the child pay “reasonable amounts 
of  money  as  fines,  costs,  fees  or  restitution,”  the  court  should  also  consider  “the 
nature of the acts that the child committed and the earning capacity of the child.” 42 
Pa.C.S. § 6352(a)(5).  

current

i.e.,

.  When considering the “earning capacity of the child,” the best practice is to 
 the child’s earning capacity while 

 earning capacity; 

consider the child’s 

  2

  5

3      Chapter 4      

 

 

Restitution in Juvenile Court

Chapter Four

Restitution in Juvenile Court

I.  RESTITUTION IN JUVENILE COURT

A.  Foundational Principles of the Juvenile Act

Restitution in Juvenile Court

juvenile court has jurisdiction over the juvenile. The juvenile court, however, may 
consider  the  child’s  earning  capacity  over  a  longer  period  of  time  if  the  juvenile 
court believes that considering a longer period of time will better meet the goals of 
the Juvenile Act.
C.   Statutory Basis for Imposing Restitution

  

1.      The  legislature  amended  the  Juvenile  Act  to  include  Section  6352(a)(5) 
that authorizes the juvenile court to impose “fines, costs or restitution as deemed 
In the 
appropriate as part of the plan of rehabilitation considering the nature of the acts 
Interest of Steven J.
committed and the earning capacity of the child.” 42 Pa.C.S.  § 6352(a)(5); 
, 491 A.2d 125, 128 (Pa. Super. 1985).

.    Pennsylvania  Juvenile  Court  Procedural  Rules  provide  that  if  the  juvenile 

court orders restitution in its dispositional order, the order shall include:

●
●
●

  2

  A specific amount of restitution to be paid by the juvenile;
  To whom the restitution shall be paid; and
  A payment schedule, if so determined by the court.

Pa.R.J.C.P. 515(B).
 

D.  Policy Considerations in Ordering Restitution

The  juvenile  court  should  consider  the  restorative  justice  aspect  of  ordering 
 
restitution  so  that  the  order  is  consistent  with  the  protection  of  the  public  interest 
and the community. The rehabilitative purpose of the Juvenile Act is attained through 
In  the 
accountability and the development of personal qualities that will enable the juvenile 
Interest of M.W
offender  to  become  a  responsible  and  productive  member  of  the  community. 
II.  FACTORS IN DETERMINING RESTITUTION AMOUNT

., 725 A.2d 729, 733 (Pa. 1999).

A.  Juvenile Court’s Broad Discretion in Determining Restitution

 

1.  The policies underlying the Juvenile Act and its restitution provision, as well 
as the plain language of Section 6352, grant the juvenile court a broad measure of 
discretion  to  apportion  responsibility  for  damages  based  upon  the  nature  of  the 
, 555 
delinquent act and the earning capacity of the juvenile. 
Pa. 505, 725 A.2d 729 (1999).

In the Interest of M.W.

current

2.  When considering the “earning capacity of the child,” the best practice is to 
consider the child’s 
 earning capacity; i.e., the child’s earning capacity while 
juvenile court has jurisdiction over the juvenile. The juvenile court, however, may 
consider  the  child’s  earning  capacity  over  a  longer  period  of  time  if  the  juvenile 

4      Chapter 4      

Restitution in Juvenile Court

court believes that considering a longer period of time will better meet the goals of 
the Juvenile Act.

B.D.G.

3.  Even if a victim settles with another party in a civil suit that arose out of 
, 959 
 

juvenile’s delinquent act, the juvenile court may still impose restitution. 
A.2d at 371.
B.  Factors Juvenile Court Should Consider in Ordering Restitution  
     (“Dublinski Factors”)

 

Generally

  1.  

The juvenile court must consider four factors before imposing restitution:

 The amount of loss the victim suffered;

 The fact that the juvenile’s action caused the injury;

 The amount awarded does not exceed the juvenile’s ability to pay; and

 The type of payment that will best serve the needs of the victim and the          

    capabilities of the juvenile.

In the Interest of Dublinski

 

Dublinski Factor No. 1: Amount of Loss Suffered by the Victim

, 695 A.2d 827 (Pa.Super. 1997).

  An  order  of  restitution  is  not  an  order  of  damages.  While  the  juvenile’s 
payment of restitution may aid the victim, its true purpose and the reason 
for its imposition is the rehabilitative goal it serves by impressing upon the 
juvenile the loss he has caused and his responsibility to repair the loss to 
the extent that he is able to do so. 
, 959 A.2d 362, 
371 (Pa.Super. 2008)(

Commonwealth v. B.D.G.

)(citation omitted).

en banc

 

B.D.G.

In determining the amount of restitution, the juvenile court, in its discretion, 
may ignore insurance proceeds that a victim’s insurance company paid the 
victim  as  a  result  of  the  loss  the  juvenile  caused  the  victim.  The  juvenile 
court, however, may only do so if the juvenile court believes that ignoring 
the  amount  of  insurance  proceeds  furthers  the  goal  of  rehabilitating  the 
juvenile. 
,  444  A.2d  758, 
760 (Pa. Super. 1982).
Dublinski  Factor  No.  2:  The  Restitution  Order    Should      Reflect  the 
Damage that the Victim Would Not Have Suffered, “But For” the Juvenile’s 
Delinquent Acts

Commonwealth  v.  Kerr

,  959  A.2d  at  371; 

  2.   
●

●

●

●

●

●

3.  

●

 
 

 

 

 

   

  The juvenile court should engage in a “but for” analysis, i.e. the juvenile will 

5      Chapter 4      

Restitution in Juvenile Court

 

●
  4.   

be liable for restitution for all damages that would not have occurred but for 
the juvenile’s criminal conduct. 

Dublinski Factor No. 3: Juvenile’s Earning Capacity

, 959 A.2d at 367.

B.D.G.

In re: Ryan,

  Before ordering restitution, the juvenile court must make some inquiry into 

●

“earning capacity.” 

 419 A.2d 1224,1227 (Pa. Super. 1980).

  The  juvenile  court  should  evaluate  relevant  factors,  such  as,  juvenile’s 
mental ability, maturity and education, work history, if any, the likelihood 
of  future  employment  and  the  extent  to  which  a  juvenile  can  reasonably 
meet  a  restitution  obligation,  the  impact  that  the  restitution  award  will 
have on the juvenile’s ability to acquire higher education and thus increase 
the  juvenile’s  earning  capacity,  and  the  juvenile’s  present  ability  to  make 
restitution. 

, 959 A.2d at 368; 

 695 A.2d at 830.

Dublinski,

B.D.G.

●

current

  When  considering  the  “earning  capacity  of  the  child,”  the  best  practice  is 
to  consider  the  child’s 
  earning  capacity;  i.e.,  the  child’s  earning 
capacity while juvenile court has jurisdiction over the juvenile. The juvenile 
court,  however,  may  consider  the  child’s  earning  capacity  over  a  longer 
period of time if the juvenile court believes that considering a longer period 
of time will better meet the goals of the Juvenile Act.
Dublinski Factor No. 4: Juvenile Court shall impose the type of payment 
that will best serve the needs of the victim and capabilities of the juvenile 

5. 
●

 

●

●

 

C.   

If the juvenile does not have the current ability to pay the restitution amount 
in  a  lump  sum,  the  juvenile  court  may  order  that  the  juvenile  pay  over  a 
period of years. 

, 959 A.2d at 369-70; 

, 695 A.2d at 829.

Dublinski

B.D.G.

B.D.G.

  Similarly, if the juvenile has no present ability to pay restitution, the court 
may  defer  imposition  of  a  payment  plan  until  an  appropriate  time  in  the 
future. 

, 959 A.2d at 369-70; 

 695 A.2d at 829.

Dublinski,

current

  When  considering  the  “earning  capacity  of  the  child,”  the  best  practice  is 
  earning  capacity;  i.e.,  the  child’s  earning 
to  consider  the  child’s 
capacity while juvenile court has jurisdiction over the juvenile. The juvenile 
court,  however,  may  consider  the  child’s  earning  capacity  over  a  longer 
period of time if the juvenile court believes that considering a longer period 
of time will better meet the goals of the Juvenile Act.
An Award of Restitution is Not an Award of Damages

1.   An order of restitution is not an award of damages. While a juvenile’s payment 
of  restitution  may  aid  the  victim,  its  true  purpose  and  the  reason  for  its 
imposition is the rehabilitative goal it serves by impressing upon the juvenile 

6      Chapter 4      

Restitution in Juvenile Court

the loss he has caused and his responsibility to repair the loss to the extent 
that he is able to do so.  

, 959 A.2d at 371 (citation omitted).

B.D.G.

2.    For  example,  juvenile  recklessly  drove  a  car  that  resulted  in  the  death  of 
one  victim  and  severe  injuries  to  two  other  victims.  Superior  Court  found 
that it was in the discretion of the juvenile court to impose restitution as a 
rehabilitative goal. It is irrelevant that the insurance company of the juvenile’s 
parents made a monetary payment to the injured victim seeking restitution 
or that the injured victim signed a release upon settlement with the insurance 
company. 

 868 A.2d 1203, 1205-06 (Pa. Super. 1997).

Facts in the Record to Support an Order of Restitution

Appeal of B.T.C.,

Dublinski

The order of restitution must be supported by the record and not be excessive 
or speculative. 
Impact  of  Criminal  Statutes  and  Cases  Regarding  Restitution  on  the 
Interpretation of Juvenile Cases and Statutes

, 695 A.2d at 829.

D. 
 

E. 

1.  Criminal statutes are not controlling on an interpretation of Juvenile Act, 42 
Pa.C.S. § 6352. Similarly, cases interpreting such statutes are not binding on 
the  juvenile  court.    The  juvenile  court,  however,  may  rely  on  criminal  law 
jurisprudence when those principles are consistent with the purposes of the 
Juvenile Act. 

B.D.G.

, 959 A.2d at 367.
Dublinski,

●

  For example, in 

 695 A.2d at 830, the Superior Court found that 
the principles about the scope of restitution enunciated in an adult criminal 
case aligned with purposes of Juvenile Act and adopted the “but for” test to 
determine the scope of a juvenile’s restitution.

Dublinski

●

 

In contrast, in 
, the Superior Court refused to adopt the requirement 
set  forth  in  18  Pa.C.S.  §  1106  because  this  provision  is  contrary  to  the 
Juvenile Act. Section 1106, which applies to an adult offender, provides that 
the trial court, when determining restitution, should not consider the adult 
offender’s ability to pay. In contrast, 42 Pa.C.S. § 6352 requires the juvenile 
court to consider the juvenile’s ability to pay. 

 695 A.2d at 830. 

Dublinski,

III.  DISPOSITIONAL COURT’S RESPONSIBILITIES

A.    Restitution Hearing

 

1.   Before entering an order imposing restitution, a juvenile court should hold 
a hearing to ensure that the amount of restitution is not speculative, reflects 
the amount of loss the victim suffered, the juvenile’s actions in causing the 
injury, the juvenile’s earning capacity, and that the payment will best serve 
the needs of the victim and the capabilities of the juvenile.

7      Chapter 4      

Restitution in Juvenile Court

current

2.  When considering the “earning capacity of the child,” the best practice is to 
consider the child’s 
 earning capacity; i.e., the child’s earning capacity 
while  juvenile  court  has  jurisdiction  over  the  juvenile.  The  juvenile  court, 
however, may consider the child’s earning capacity over a longer period of 
time if the juvenile court believes that considering a longer period of time will 
better meet the goals of the Juvenile Act.  

3.   After the hearing, the court shall state on the record the amount of restitution 

and the basis for its decision. 42 Pa.C.S. § 6352(c).

4.   If  a  victim  submits  a  written  or  oral  impact  statement  that  addresses  the 
economic, physical or psychological effect that the crime had on the victim, the 
juvenile court shall consider the statement when determining the disposition 
of the juvenile, including the imposition of restitution. 28 P.S. 11.201(5).

B.  Restitution Order

Pennsylvania  Rule  of  Juvenile  Court  Procedure  515  requires  that  the  court 
include the following information in an order for restitution:

  1.  A specific amount of restitution that the juvenile is to pay;
  2.  To whom the restitution shall be paid; and
  3.  A payment schedule, if so determined by the court.

Pa.R.J.C.P. 515(B).
C.    Parties To Whom Juvenile May Pay Restitution

 

 
 
 

 

   

 
 

 

 

1.  Juvenile Court may order that the juvenile pay restitution to the victim or a 

third-party, such as an insurance company, or the State.

2.   It  is  within  the  discretion  of  the  juvenile  court,  when  it  determines  that  a 
victim  or  other  party  is  entitled  to  restitution  funds,  whether  it  should  be 
paid  sooner  than  the  time  period  in  which  the  juvenile  will  be  able  to  pay 
restitution, and may order that the juvenile pay restitution to the restitution 
fund.  42  Pa.C.S.  §  6352(a)(5).  In  such  case,  the  President  Judge  of  a  Court 
of  Common  Pleas,  in  his  or  her  discretion,  may  make  payments  from  the 
restitution fund to a victim or other party for financial losses resulting from 
delinquent acts.  

Id.

3.   It is within the discretion of the juvenile court to order that the juvenile pay 
restitution to an insurance company that reimburses an insurance company 
for amounts that the insurance company paid the victim. 
, 45 A.3d 
1118 (Pa. Super. 2012).  It is also within the discretion of the juvenile court 

In re: J.G.

8      Chapter 4      

Restitution in Juvenile Court

In re: B.T.C.

to  order  the  juvenile  to  pay  restitution  to  a  victim  even  if  the  payment  is 
duplicative. 

, 868 A.2d 1203 (Pa. Super. 2005).

4.   It  is  also  within  the  discretion  of  the  juvenile  court  to  order  as  restitution 
that  the  juvenile  reimburse  the  state  for  the  investigation  that  led  to  the 
adjudication of delinquency of the juvenile. In re 
, 847 A.2d 685 (Pa. Super. 
2004).
D.  Timeliness and Deferment of Restitution Order

R.S.

In  the 
1.   The Juvenile Act, unlike the Crimes Code, does not require the juvenile court 

Interest of J.G.
to  impose  restitution  within  thirty  days  of  the  dispositional  order. 

, 45 A.3d 1118, 1121 (Pa. Super. 2012). Rather, the Juvenile Act 
provides the juvenile court with broad discretion in ordering that the juvenile 
pay restitution to the victim. This discretion includes determining the time 
period during the proceedings in which the juvenile court orders restitution. 
It  was  proper  for  the  juvenile  court  to  wait  to  order  restitution  until  the 
information regarding the damages became available, even if it took 114 days 
 at 1122. However, a court may not impose an 
to obtain the information. 
See also Commonwealth v. Ramos,
open-ended order of restitution with the amount to be determined at a later 
 197 
date. 42 Pa.C.S. § 6352(a)(5) and (6). 
A.3d 766, 770 (Pa.Super. 2018). 

Id.

2.   Juvenile court did not violate a juvenile’s due process rights when the juvenile 
court imposed restitution more than ninety days after final disposition and 
In the Interest of J.G.
placement because the restitution order was a separate and appealable order. 
, Jr. 879 A.2d 288 (Pa. 
Super. 2005) (providing that an order modifying restitution is an appealable 
order)).

, 45 A.2d at 1122 (citing 

In re: J.E.D.

3.    If  the  juvenile court enters an  order for  restitution  and the  juvenile cannot 
pay the restitution at the time of the order, the juvenile court may defer the 
juvenile’s restitution obligation or order that juvenile pay the restitution over 
a period of time. 

, 959 A.2d at 371.

E.   Restitution as Part of Probation Order

B.D.G.

 

 

1.   Section 6352(a)(2) authorizes a juvenile court to, inter alia, place a juvenile 
under the supervision of the probation officer of the court “under conditions 
and limitations the court prescribes.” Although this section does not specifically 
list  restitution  as  one  of  the  conditions  of  probation,  it  is  reasonable  to 
interpret this provision as permitting the juvenile court to impose restitution 
as a condition of probation so long as the juvenile’s payment of restitution is 
consistent with the policy of the Juvenile Act.  
, 725 A.2d 729, 
732 (Pa. 1999).

See In re M.W.

9      Chapter 4      

Restitution in Juvenile Court

2.   When  a  trial  court,  in  an  adult  proceeding,  imposes  restitution  as  part  of 
the sentence, rather than as a condition of probation, the courts have found 
different legal implications. See generally 
 844 A.2d 
13, 19 (Pa. Super. 2004). The juvenile courts have not made such a distinction.

Commonwealth v. Popow,

3.   The  goals  and  purposes  of  restitution  in  the  juvenile  context  are  the  same 
for disposition orders and probation orders. A juvenile court should always 
impose restitution that is “appropriate to the individual circumstances of the 
child’s case” in light of “the nature of the acts that the child committed and the 
earning capacity of the child.”  42 Pa.C.S. § 6352(a). 
F.   Determination of Restitution For Intercounty Transfers

 

 
When  a  juvenile  commits  an  offense  in  a  county  that  is  not  his  home 
county and the juvenile judge in the county in which he committed the offense 
makes findings of facts about the offense, the juvenile judge should also make a 
finding about the amount of restitution.
G.  Retention of Jurisdiction Until Age 21 and Then Judgment Against Juvenile

 

The  Juvenile  Act  provides  that  a  court  that  orders  restitution  retains 
 
jurisdiction until there is full compliance with the order or until the juvenile 
is 21 years old. If a restitution order remains unpaid when the child turns 21, 
any remainder continues to be collectible as a judgment in favor of the county 
probation department under Section 9728. 42 Pa.C.S. § 6352(a)(5).

H.  Restitution Determined by Agreement

Consent Decree 

1.      

 
A court may impose restitution as a term of a consent decree voluntarily 
entered by the juvenile. The juvenile court, in either approving or setting the 
amount of restitution, must consider the juvenile’s ability to pay. 
, 848 
A.2d 1014, 1015 (Pa. Super. 2004).
Informal Adjustment 

In re J.J.

 
When making an informal adjustment to allegations under Juvenile Court 
Procedural  Rule  312,  a  probation  officer  may  include  as  a  condition  of  the 
adjustment a payment of restitution to which the parties agreed. Pa.R.J.C.P. 312.

Plea Agreement 

 

 

 

2. 

3. 

 
The  payment  of  restitution  may  be  part  of  a  plea  agreement  so  long  as 
the amount reflects amount of loss the victim suffered, the juvenile’s actions in 

10      Chapter 4      

  
 

 

 

 

4. 
●

 

●

5.   
●

●

Restitution in Juvenile Court

causing the injury, the juvenile’s ability to pay the restitution award and that 
the payment will best serve the needs of the victim and the capabilities of the 
juvenile.  

Juvenile Court’s Discretion to Hold a Hearing

Juvenile court has the discretion to hold a hearing before accepting the terms 
of a consent decree, informal adjustment or plea agreement that includes 
the  payment  of  restitution.  Juvenile  court  should  ensure  that  the  amount 
of restitution is not speculative,  reflects amount of loss the victim suffered, 
the juvenile’s actions in causing the injury, the juvenile’s earning and that 
the payment will best serve the needs of the victim and the capabilities of 
the juvenile.

current 

  When  considering  the  “earning  capacity  of  the  child,”  the  best  practice  is 
to  consider  the  child’s 
earning  capacity;  i.e.  the  child’s  earning 
capacity while juvenile court has jurisdiction over the juvenile. The juvenile 
court,  however,  may  consider  the  child’s  earning  capacity  over  a  longer 
period of time if the juvenile court believes that considering a longer period 
of time will better meet the goals of the Juvenile Act.  
Victim Offender Conferencing

  Another method to determine restitution is to have the victim and juvenile 
engage in Victim/Offender Conferencing. This involves a facilitated dialogue 
between the victim and the juvenile offender. Victim/offender conferencing 
encourages  offenders  to  take  responsibility  for  their  actions,  understand 
the harm he caused and take action to make things right.

  Victim Offenders Conferencing is primarily about the restoration of crime 
victims. The research has shown that the use of VOC enhances the ability to 
collect restitution and empowers the victim to express their needs and wants 
regarding the repair of harm to them. While this practice has meaningful 
restorative justice value, it must be implemented carefully, primarily as a 
service to victims. It should only be an element of an appropriate disposition 
of a case, not the entire disposition of a case.

IV.  Parental Participation and Liability

A.   Parental Participation in Juvenile’s Restitution Obligation

 

      

may
Section 6310 of the Juvenile Act, “Parental Participation,” provides that a 
 
 order a parent to participate in restitution. Parental “participation” 
court 
in a juvenile’s restitution order should be limited to attending the restitution 
hearing,  helping  the  juvenile  find  employment,  arranging  transportation  to 
employment,  overseeing  the  juvenile’s  income,  or  ensuring  that  the  juvenile 

11      Chapter 4      

Restitution in Juvenile Court

In  re  C.W.,

remits  the  required  payments. 
2010).

B.   Liability of Parents for Juvenile’s Delinquent Acts that are Tortious.

  7  A.3d  891,  896-97  (Pa.  Cmwlth. 

 

 

 
Liability for Tortious Acts of Children, 23 Pa.C.S. §§ 5501-5509 imposes 
liability on a parent if a court adjudicates a juvenile delinquent for committing 
a tortious act that caused an injury. 23 Pa.C.S. § 5502; 23 Pa.C.S. § 5505. The 
parent  is  only  liable  for  damages  up  to  $1000  for  one  victim  or  $2500  for 
multiple victims
●

 

In  a  juvenile  proceeding,  the  juvenile  court  shall  ascertain  the  amount  to 
reimburse any person who has suffered injury because of the delinquent 
and tortious act of the child and direct the parents to make a payment not 
to  exceed  $1000  for  one  victim  or  $2500  for  multiple  victims.  23  Pa.C.S. 
§§ 5503(a), 5505. If the parent fails to make the payment, the victim may 
recover the amount in a civil suit against the parent or parents. 23 Pa.C.S. § 
5503(b).

  The limitations of $1000 for one victim and $2500 for multiple victims also 
apply when two or more children of the parent engaged jointly in one or 
more delinquent and tortious acts. 23 Pa.C.S. § 5505(c).

  A parent shall not be liable for the delinquent and tortious act of his child 
if at the time the child committed the act, the parent “has neither custody 
nor  is  entitled  to  custody  of  the  child”  or  if  the  child  is  institutionalized 
or  emancipated.  23  Pa.C.S.  §  5508(a).  A  parent  is  still  liable  if  the  parent 
deserted the child. 23 Pa.C.S. § 5508(b).

  This Act only applies to “natural or adoptive” parents and does not apply to 
a Child and Youth Agency who had custody over the child at the time that 
,  7  A.3d 
the  child  committed  the  delinquent  and  tortious  acts. 
891, 895 (Pa. Cmwlth. 2010).

In  re:  C.W.

●

●

●

V

.  Restitution Fund

A. Contribution.

 

 

 
In  addition  to  authorizing  the  payment  of  restitution  to  a  victim,  the 
Juvenile Court may order that the juvenile contribute to a “restitution fund” the 
President Judge of the Court of Common Pleas of each county may create.  23 
Pa.C.S.  §6352(a)(5).  Under  the  JCJC  Standards  Governing  the  Administration 
of Restitution Funds, any court that collects such contributions from juveniles 
must  establish  a  fund  for  the  deposit  of  the  contributions.  An  established 
restitution fund will pay the victim before the time that the juvenile pays the 
fund.  

12      Chapter 4      

Restitution in Juvenile Court

B.  Guidelines

 

 

 

 

 

 
When  establishing  such  a  fund,  the  President  Judge  of  the  Court  of 
Common  Pleas  should  promulgate  written  guidelines  for  its  administration. 
The guidelines should specify that no disbursements from the fund may occur 
without  the  signature  of  two  persons  designated  by  the  President  Judge. 
Disbursements from the fund shall be at the discretion of the President Judge, 
adhere to the written guidelines, and remain within the limitations of Chapter 
63 of Title 42.  42 Pa.C.S. § 6352(a). Restitution funds should be audited annually, 
and an annual report must disclose individual and aggregate data on payments 
to and disbursement from the fund.

C.   Judgment for Unpaid Restitution

Under the JCJC Standards Governing the Collection and Disbursement of 
 
Restitution, each county must adopt a written policy requiring that the juvenile 
court  enter  a  judgment  for  any  unpaid  restitution  when  the  juvenile  court’s 
jurisdiction  over  the  juvenile  terminates.  At  least  one-half  of  any  amount 
collected under such a judgment must be applied to the payment of restitution 
to the victim, as opposed to fees, costs, fines, and other obligations. 42 Pa.C.S. § 
9728(g.1). As a matter of best practices, however, all funds collected should be 
applied to the restitution obligation until it is fully satisfied. 

VI.  COLLECTION OF RESTITUTION AND ENFORCEMENT OF ORDER

A.  Probation Department

The  county  probation  department  (or  other  agent  designated  by  the 
 
county commissioners with the approval of the president judge) shall collect 
restitution, reparation, fees, costs, fines and penalties. 42 Pa.C.S. § 9728(a). 

B.  Procedure for Collection of Restitution Order

1.  Upon sentencing, pretrial disposition or other order, the county clerk of courts 
shall transmit copies of all orders for restitution. 42 Pa.C.S. §9728(b)(3).

2.  The county probation department or designated agent, upon receipt of each 
order  from  the  clerk  of  courts,  will  open  a  restitution  file  for  the  purposes 
of recording the amounts of restitution received, collected, or deducted. 42 
Pa.C.S. § 9728(b.1).

C.   Default in Payment

1.  If a juvenile fails to make restitution payments, it is the best practice of juvenile 
court to conduct a hearing to determine the reasons for the juvenile’s failure 

13      Chapter 4      

Restitution in Juvenile Court

to pay and take action consistent with the Juvenile Act.

2.  If  the  juvenile  court  finds  that  it  is  necessary  and  appropriate  to  refer  the 
juvenile’s delinquent account to a private collection agency, the juvenile court 
may do so. 42 Pa.C.S. § 9730.

not

3.  If the juvenile court determines that the juvenile is 

 able to pay, it should 
assess the extent of that inability, the burden that payment imposes on the 
juvenile, and adjust the payment schedule or sentence the juvenile to a period 
of  community  service—whatever  the  court  finds  to  be  just  and  practicable 
under the circumstances. 42 Pa.C.S. § 6352.

D.   Judgment May Be Entered

 

 

If  it  is  appropriate  to  enter  a  judgment  for  the  juvenile’s  failure  to  pay 
 
restitution,  the  judgment  shall  be  against  the  juvenile  and  in  favor  of  the 
probation department. 42 Pa.C.S. § 9728(a).

 
JUVENILE COURT TO REDUCE THE AMOUNT OF RESTITUTION, FEES AND  

VII.   PROPOSED AMENDMENT OF Pa.R.J.C.P. 515 AND 610 TO PERMIT THE  
 
 

 
  COSTS. 

 
The Juvenile Court Procedural Rules Committee has proposed a comment 
to Pennsylvania Rules of Juvenile Court Procedure Section 515 (Dispositional 
Order) and 610 (Dispositional and Commitment review) making explicit that 
a  juvenile  may  petition  the  juvenile  court  to  reduce  his  obligations  to  pay 
restitution, fees and costs.

 
If  the  juvenile  court  modified  a  juvenile’s  obligation  to  pay  restitution, 
fees,  and  costs  and  the  juvenile  was  otherwise  compliant,  the  juvenile  court 
would have the discretion to decide that supervision is no longer necessary and 
to terminate supervision.

VIII.  APPELLATE REVIEW

A.   Standard of Review

1.  “The Juvenile Act grants broad discretion to the juvenile court to determine 
an appropriate disposition. The appellate court will not disturb a disposition 
absent  a  manifest  abuse  of  discretion.”   
,  45  A.3d  1118,  1120  (Pa. 
Super. 2012) (citation omitted). 

In  re  J.G.

2.    The  appellate  courts  review  whether  the  disposition  is  consistent  with  the 
protection  of  the  public  interest  and  the  community,  and  the  rehabilitative 
purpose of the Juvenile Act. The purpose of the disposition order is to ensure 

14      Chapter 4      

Restitution in Juvenile Court

accountability  and  the  development  of  personal  qualities  that  will  enable 
the juvenile offender to become a responsible and productive member of the 
community.  Thus  the  policies  underlying  the  Juvenile  Act  and  its  restitution 
provision,  as  well  as  the  plain  language  of  Section  6352,  serve  to  invest  the 
juvenile court with a broad measure of discretion to apportion responsibility 
for  damages  based  upon  the  nature  of  the  delinquent  act  and  the  earning 
capacity of the juvenile. 

 725 A.2d at 732-733.

In re M.W.,

B.   Abuse of Discretion 

1.  The Superior Court of Pennsylvania will not reverse the findings of the juvenile 
court, which is the finder of fact in a juvenile proceeding, unless it appears the 
court has abused its discretion or committed an error of law. 
, 563, 
646 A.2d 1233, 1237 (Pa. Super. 1994). 

In re Love

2.    When  reviewing  an  order  of  restitution,  the  appellate  court  will  find  that  the 
juvenile court abused its discretion when the restitution order is speculative, 
B.D.G.
excessive,  lacks  support  in  the  record,  or  fails  to  adhere  to  but-for  analysis. 

C.   Claims Waived on Appeal

, 959 A.2d at 367. 

 

 

 
When a juvenile failed to object before the juvenile court to a restitution 
order  that  required  him  to  pay  for  funeral  expenses,  the  juvenile  waived  his 
challenge on appeal that the juvenile court erred in not considering the nature 
of the delinquent act or his earning capacity. 
, 868 A.2d 1203 (Pa. 
Super. 2005).
  BEST PRACTICES AND CONSIDERATIONS WHEN ORDERING RESTITUTION  
 

IN JUVENILE CASES

In re B.T.C.

IX. 
 

1.  The juvenile court, when determining an amount of restitution, should set an 

amount that reflects:
●

 

 
 
 
 
 

●
●
●
●
●

●

the  current  earning  capacity  of  the  juvenile,  including  employment 
opportunities;
the harm the juvenile caused the victim, 
the culpability of the juvenile in causing the harm, 
the impact that restitution will have on rehabilitating the juvenile,
the juvenile’s age, 
the length of time that the juvenile might be under supervision in order to 
complete all other conditions of the disposition order, and

  any other relevant factors.

2.  The  juvenile  court  must  place  on  the  record  the  basis  for  the  amount  of 

15      Chapter 4      

Restitution in Juvenile Court

restitution  ordered.  If  the  amount  of  claimed  restitution  is  in  question,  the 
court should conduct a hearing to determine the actual amount. 

3.  The juvenile court should ensure that the victim is notified and provided with 
an opportunity to be heard at dispositional and dispositional review hearings, 
especially when the juvenile court determines the amount of restitution or 
the juvenile files a motion to modify restitution. 

4.  Before setting an amount of restitution, the juvenile court must review proof 
of the victim’s damages to establish the amount requested (i.e., victim claims 
forms,  receipts,  appraisals,  estimates,  etc.).  The  amount  of  restitution  may 
not be speculative.

5.  The juvenile court is not required to set restitution at the full amount of the 
victim’s  damages.  Rather,  the  juvenile  court  should  consider  this  factor  as 
well as the factors listed above.

6.  If the juvenile court determines that it is not in the best interest of the juvenile 
to  order  that  the  juvenile  pay  restitution  in  the  full  amount  of  the  victim’s 
damages, it is appropriate for the juvenile court to ask the victim about the 
victim’s position on an alternative disposition as a means to repair harm in 
lieu  of  restitution,  such  as  community  service,  that  is  consistent  with  the 
mission of balanced and restorative justice.

7.  When more than one juvenile has committed the delinquent act(s) and the 
juvenile court determines that it is appropriate to impose restitution on each of 
the juveniles, the juvenile court should separately determine the appropriate 
amount of restitution for each juvenile. The juvenile court should not require 
one juvenile to be responsible for paying the amount of restitution that the 
juvenile court orders for the other juvenile.

8.  When considering the juvenile’s current ability to pay restitution, the juvenile 
court should not consider the financial resources of the juvenile’s parents or 
guardians.

9.  It is the responsibility of the juvenile court and the probation department to 
create  and  provide  work  and  community  service  programs  and  restitution 
funds to assist juveniles with paying restitution.

10. The juvenile court should order that the juvenile make restitution payments 
in installments if the juvenile is unable to pay the full amount at one time. 

11. If the juvenile fails to make one or more restitution payments, the juvenile 
court,  when  deciding  whether  to  impose  additional  sanctions  against  the 
juvenile, should consider the juvenile’s current earning capacity, the juvenile’s 

16      Chapter 4      

Restitution in Juvenile Court

current behavior and rehabilitative needs.

12. When appropriate, the court should encourage victims to apply to the Crime 
Victims’  Compensation  Fund  for  recovery  of  financial  loss,  as  permitted  by 
the Fund, especially in cases where the amount of restitution sought is high 
or when the court has found that a juvenile is unable to pay any or all of the 
restitution.

13. Juveniles should not make payments directly to the victim. Rather, the juvenile 
should  make  the  payments  to  the  probation  department  or  juvenile  court 
who will in turn properly disburse the funds. 

14. The juvenile court should require the juvenile to pay restitution for the period 
of  time  that  is  appropriate  for  juvenile  and  meets  the  goals  of  the  Juvenile 
Act.  In other words, the juvenile court should not automatically require the 
juvenile  to  pay  restitution  until  the  juvenile  turns  21  years  old;  rather,  the 
juvenile court should require the juvenile to pay restitution for the period of 
time that the juvenile court determines is appropriate under the Juvenile Act 
and is in line with other conditions of supervision.

15. The court should review the juvenile’s progress towards making restitution 
payments  at  each  dispositional  review  hearing.  The  juvenile  court  should 
also consider whether it is in a juvenile’s best interest for the case to remain 
open until the age of 21 when the juvenile has otherwise satisfied all other 
obligations of the dispositional order.  The juvenile court should consider the 
negative impact on a juvenile’s transition to adulthood when a juvenile has a 
judgment entered against him for failing to pay restitution while under the 
jurisdiction of the juvenile court.

17      Chapter 4      

Statutory Provisions and Rules of Court

Chapter Five                                                 Table of Contents

Statutory Provisions And Rules Of Court

I.   ENABLING STATUTES and RULES 

1.  Mandatory Restitution 18 Pa.C.S.A. § 1106  .......................................................2

2.  Sentencing in General 42 PA.C.S.A. § 9721  ........................................................4

3.  Collection of Restitution 42 Pa.C.S.A. § 9728  ....................................................6 

4.  Distribution of Funds Collected by Criminal Division

     

     204 Pa. Code § 29.405    .............................................................................................9

5.  Statutory Definition of a Victim 42 P.S. § 11.103  ..........................................12 

6.  Summary Conviction – Sentence of Restitution Pa.R.Crim.P. 454  ..........12

II.   SPECIAL STATUTORY RESTITUTION PROVISIONS

1.  Identity Theft 18 Pa.C.S.A. § 1107.1  ..................................................................14

2.  Cleanup of Clandestine Laboratories 18 Pa.C.S.A. § 1110 ..........................14

3.  Terroristic Threats 18 Pa.C.S.A. § 2706 ............................................................15

4.  Threat to Use Weapons of Mass Destruction 18 Pa.C.S.A. § 2715  ...........16

5.  Weapons of Mass Destruction 18 Pa.C.S.A. § 2716  ......................................17  

6.  Cruelty to Animals 18 Pa.C.S.A. § 5511  ............................................................19

7.  Facsimile Weapons of Mass Destruction 18 Pa.C.S.A. § 5516  ...................22

 

 

 

 

 

 

 

 

 

 

 

 

 

1      Chapter 5     

Statutory Provisions and Rules of Court

Chapter Five

Statutory Provisions And Rules Of Court

I.   ENABLING STATUTES and RULES

RESTITUTION IN GENERAL (Crimes Code)

18 Pa.C.S.A. § 1106
Restitution for injuries to person or property

(a) General rule.

(b) Condition of probation or parole.

--Upon conviction for any crime wherein property has been stolen, 
 
converted  or  otherwise  unlawfully  obtained,  or  its  value  substantially  decreased  as 
a  direct  result  of  the  crime,  or  wherein  the  victim  suffered  personal  injury  directly 
resulting from the crime, the offender shall be sentenced to make restitution in addition 
to the punishment prescribed therefor.
 
--Whenever restitution has been ordered 
pursuant to subsection (a) and the offender has been placed on probation or parole, 
 
his compliance with such order may be made a condition of such probation or parole.

(c) Mandatory restitution.--

 

(1) The court shall order full restitution:

(i)  Regardless  of  the  current  financial  resources  of  the  defendant,  so  as  to 
provide the victim with the fullest compensation for the loss. The court shall 
not  reduce  a  restitution  award  by  any  amount  that  the  victim  has  received 
from the Crime Victim’s Compensation Board or other governmental agency 
but shall order the defendant to pay any restitution ordered for loss previously 
compensated by the board to the Crime Victim’s Compensation Fund or other 
designated account when the claim involves a government agency in addition 
to  or  in  place  of  the  board.  The  court  shall  not  reduce  a  restitution  award 
by any amount that the victim has received from an insurance company but 
shall  order  the  defendant  to  pay  any  restitution  ordered  for  loss  previously 
compensated by an insurance company to the insurance company.
(ii) If restitution to more than one person is set at the same time, the court 
shall  set  priorities  of  payment.  However,  when  establishing  priorities,  the 
court shall order payment in the following order:

 
 
 
 
 
 

(A) The victim.
 
(B) The Crime Victim’s Compensation Board.
 
(C) Any other government agency which has provided reimbursement   
 
       to the victim as a result of the defendant’s criminal conduct.
 
(D) Any insurance company which has provided reimbursement to the  
 
 
       victim as a result of the defendant’s criminal conduct.
(2) At the time of sentencing the court shall specify the amount and method of 
restitution. In determining the amount and method of restitution, the court:

2      Chapter 5     

Statutory Provisions and Rules of Court

(i)  Shall  consider  the  extent  of  injury  suffered  by  the  victim,  the  victim’s 
request for restitution as presented to the district attorney in accordance with 
paragraph (4) and such other matters as it deems appropriate.
(ii) May order restitution in a lump sum, by monthly installments or according 
to such other schedule as it deems just.
(iii) Shall not order incarceration of a defendant for failure to pay restitution if 
the failure results from the offender’s inability to pay.
(iv)  Shall  consider  any  other  preexisting  orders  imposed  on  the  defendant, 
including, but not limited to, orders imposed under this title or any other title.
(3) The court may, at any time or upon the recommendation of the district attorney 
that is based on information received from the victim and the probation section of 
the county or other agent designated by the county commissioners of the county 
with the approval of the president judge to collect restitution, alter or amend any 
order of restitution made pursuant to paragraph (2), provided, however, that the 
court states its reasons and conclusions as a matter of record for any change or 
amendment to any previous order.
(4)  (i)  It  shall  be  the  responsibility  of  the  district  attorneys  of  the  respective 
counties  to  make  a  recommendation  to  the  court  at  or  prior  to  the  time  of 
sentencing as to the amount of restitution to be ordered. This recommendation 
shall be based upon information solicited by the district attorney and received 
from the victim.
(ii)  Where  the  district  attorney  has  solicited  information  from  the  victims 
as  provided  in  subparagraph  (i)  and  has  received  no  response,  the  district 
attorney shall, based on other available information, make a recommendation 
to the court for restitution.
(iii) The district attorney may, as appropriate, recommend to the court that the 
restitution order be altered or amended as provided in paragraph (3).

(d) Limitations on district justices.--

(e)  Restitution  payments  and  records.--

Restitution ordered by a magisterial district 
 
judge  shall  be  limited  to  the  return  of  the  actual  property  or  its  undisputed  dollar 
amount or, where the claim for restitution does not exceed the civil jurisdictional limit 
specified  in  42  Pa.C.S.  §  1515(a)(3)  (relating  to  jurisdiction)  and  is  disputed  as  to 
amount, the magisterial district judge shall determine and order the dollar amount of 
restitution to be made.
 
Restitution,  when  ordered  by  a  judge, 
shall  be  made  by  the  offender  to  the  probation  section  of  the  county  in  which  he 
was convicted or to another agent designated by the county commissioners with the 
approval  of the  president judge  of the county to collect  restitution according to  the 
order of the court or, when ordered by a magisterial district judge, shall be made to 
the magisterial district judge. The probation section or other agent designated by the 
county commissioners of the county with the approval of the president judge to collect 
restitution and the magisterial district judge shall maintain records of the restitution 
order and its satisfaction and shall forward to the victim the property or payments 
made pursuant to the restitution order.
 

(f) Noncompliance with restitution order.--

Whenever the offender shall fail to 

3      Chapter 5     

Statutory Provisions and Rules of Court

(h)  Definitions.--

(g)  Preservation  of  private  remedies.--

“Crime.”
“Injury  to  property.”

make restitution as provided in the order of a judge, the probation section or other 
agent  designated  by  the  county  commissioners  of  the  county  with  the  approval 
of  the  president  judge  to  collect  restitution  shall  notify  the  court  within  20  days  of 
such failure. Whenever the offender shall fail to make restitution within 20 days to a 
magisterial district judge, as ordered, the magisterial district judge shall declare the 
offender in contempt and forward the case to the court of common pleas. Upon such 
notice of failure to make restitution, or upon receipt of the contempt decision from a 
magisterial district judge, the court shall order a hearing to determine if the offender 
is in contempt of court or has violated his probation or parole.
 
No  judgment  or  order  of  restitution 
shall  debar  the  owner  of  the  property  or  the  victim  who  sustained  personal  injury, 
by  appropriate  action,  to  recover  from  the  offender  as  otherwise  provided  by  law, 
provided that any civil award shall be reduced by the amount paid under the criminal 
judgment.
 
have the meanings given to them in this subsection:
 
 
instruments, or decrease in its value, directly resulting from the crime.
 
 
“Property.”
from the crime.
 
instruments, of the victim.
 
equivalent thereof pursuant to an order of the court.
 
 As defined in section 479.1 of the act of April 9, 1929 (P.L. 177, No. 175), 
known  as  The  Administrative  Code  of  1929.1  The  term  includes  the  Crime  Victim’s 
Compensation Fund if compensation has been paid by the Crime Victim’s Compensation 
Fund to the victim and any insurance company that has compensated the victim for 
loss under an insurance contract.

 Any offense punishable under this title or by a magisterial district judge.
  Loss  of  real  or  personal  property,  including  negotiable 

  Any  real  or  personal  property,  including  currency  and  negotiable 

 The return of the property of the victim or payments in cash or the 

As  used  in  this  section,  the  following  words  and  phrases  shall 

  Actual  bodily  harm,  including  pregnancy,  directly  resulting 

 Any person who has been found guilty of any crime.

“Offender.”
“Personal  injury.”

“Restitution.”

“Victim.”

MANDATORY RESTITUTION (Sentencing Code)

 Mandatory Restitution in subsection 9721(c)

42 PA.C.S.A. § 9721
Sentencing Generally

(a)  General  rule.--

  
In  determining  the  sentence  to  be  imposed  the  court  shall, 
except as provided in subsection (a.1), consider and select one or more of the following 
alternatives, and may impose them consecutively or concurrently:

(1) An order of probation.
(2) A determination of guilt without further penalty.

4      Chapter 5     

Statutory Provisions and Rules of Court

(3) Partial confinement.
(4) Total confinement.
(5) A fine.
(6) County intermediate punishment.
(a.1) Exception.—
(7) State intermediate punishment.

 

(1) Unless specifically authorized under section 9763 (relating to a sentence 
of  county  intermediate  punishment)  or  61  Pa.C.S.  Ch.  41  (relating  to  State 
intermediate punishment), subsection (a) shall not apply where a mandatory 
minimum sentence is otherwise provided by law.
(2) An eligible offender may be sentenced to State intermediate punishment 
pursuant  to  subsection  (a)(7)  and  as  described  in  61  Pa.C.S.  Ch.  41  or  to 
State  motivational  boot  camp  as  described  in  61  Pa.  C.S.  Ch.  39  (relating  to 
motivational  boot  camp),  even  if  a  mandatory  minimum  sentence  would 
otherwise be provided by law.
(3)  An  eligible  offender  may  be  sentenced  to  total  confinement  pursuant  to 
subsection (a)(4) and a recidivism risk reduction incentive minimum sentence 
pursuant to section 9756(b.1) (relating to sentence of total confinement), even 
if a mandatory minimum sentence would otherwise be provided by law.

(b) General standards.--

 
In selecting from the alternatives set forth in subsection 
(a), the court shall follow the general principle that the sentence imposed should call 
for confinement that is consistent with the protection of the public, the gravity of the 
offense as it relates to the impact on the life of the victim and on the community, and the 
rehabilitative needs of the defendant. The court shall also consider any guidelines for 
sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing 
and  taking  effect  under  section  2155  (relating  to  publication  of  guidelines  for 
1
sentencing, resentencing and parole and recommitment ranges following revocation).
 
In  every  case  in  which  the  court  imposes  a  sentence  for  a  felony  or  misdemeanor, 
modifies a sentence, resentences an offender following revocation of probation, county 
intermediate punishment or State intermediate punishment or resentences following 
remand, the court shall make as a part of the record, and disclose in open court at the 
time of sentencing, a statement of the reason or reasons for the sentence imposed. In 
every case where the court imposes a sentence or resentence outside the guidelines 
adopted by the Pennsylvania Commission on Sentencing under sections 2154 (relating 
to adoption of guidelines for sentencing), 2154.1 (relating to adoption of guidelines 
for county intermediate punishment), 2154.2 (relating to adoption of guidelines for 
State intermediate punishment), 2154.3 (relating to adoption of guidelines for fines), 
2154.4 (relating to adoption of guidelines for resentencing) and 2154.5 (relating to 
adoption of guidelines for parole) and made effective under section 2155, the court 
shall provide a contemporaneous written statement of the reason or reasons for the 
deviation from the guidelines to the commission, as established under section 2153(a)
(14) (relating to powers and duties). Failure to comply shall be grounds for vacating 
the sentence or resentence and resentencing the defendant.
In addition to the alternatives set forth in subsection 
 
(a)  of  this  section  the  court  shall  order  the  defendant  to  compensate  the  victim  of 
5      Chapter 5     

(c) Mandatory restitution.--

Statutory Provisions and Rules of Court

(c.1)  Mandatory  payment  of  costs.--

his criminal conduct for the damage or injury that he sustained. For purposes of this 
subsection, the term “victim” shall be as defined in section 479.1 of the act of April 9, 
2
1929 (P.L. 177, No. 175), known as The Administrative Code of 1929.
Notwithstanding  the  provisions  of  section 
 
9728 (relating to collection of restitution, reparation, fees, costs, fines and penalties) 
or  any  provision  of  law  to  the  contrary,  in  addition  to  the  alternatives  set  forth  in 
subsection (a), the court shall order the defendant to pay costs. In the event the court 
fails to issue an order for costs pursuant to section 9728, costs shall be imposed upon 
the defendant under this section. No court order shall be necessary for the defendant 
to incur liability for costs under this section. The provisions of this subsection do not 
alter the court’s discretion under Pa.R.Crim.P. No. 706(C) (relating to fines or costs).
 
by the court are set forth in this subchapter.
 
chapter shall be for a definite term.

With respect to each alternative the criteria to be considered 

All sentences of imprisonment imposed under this 

(e) Term of imprisonment.--

(d) Detailed criteria.--

COLLECTION OF RESTITUTION

 Judgment in favor of Probation Department in subsection 
    (a)(1)
 Restraining order to preserve assets in excess of $10,000 
    in subsection (e)

42 Pa.C.S.A. § 9728
Collection of restitution, reparation, fees, costs, fines and penalties

(a) General rule.—

(1) Except as provided in subsection (b)(5), all restitution, reparation, fees, costs, 
fines and penalties shall be collected by the county probation department or other 
agent designated by the county commissioners of the county with the approval of 
the president judge of the county for that purpose in any manner provided by law. 
However, such restitution, reparation, fees, costs, fines and penalties are part of a 
criminal action or proceeding and shall not be deemed debts. A sentence, pretrial 
disposition order or order entered under section 6352 (relating to disposition of 
delinquent  child)  for  restitution,  reparation,  fees,  costs,  fines  or  penalties  shall, 
together with interest and any additional costs that may accrue, be a judgment in 
favor of the probation department upon the person or the property of the person 
sentenced or subject to the order.(2) In accordance with section 9730.1 (relating 
to collection of court costs, restitution and fines by private collection agency), the 
collection of restitution, reparation, fees, costs, fines and penalties under this section 
may be referred to a private collection agency. Statistical information relating to 
the  amount  of  restitution  collected  by  the  county  probation  department  or  any 
agent  designated  by  the  county  commissioners  of  the  county  with  the  approval 

6      Chapter 5     

Statutory Provisions and Rules of Court

(b) Procedure.--

of the president judge of the county shall be made available to the Pennsylvania 
Commission on Crime and Delinquency on an annual basis.

(1) The county clerk of courts shall, upon sentencing, pretrial disposition or other 
order, transmit to the prothonotary certified copies of all judgments for restitution, 
reparation, fees, costs, fines and penalties which, in the aggregate, exceed $1,000, 
and it shall be the duty of each prothonotary to enter and docket the same of record 
in his office and to index the same as judgments are indexed, without requiring the 
payment of costs as a condition precedent to the entry thereof.
(2)  The  clerk  of  courts,  in  consultation  with  other  appropriate  governmental 
agencies,  may  transmit  to  the  prothonotary  of  the  respective  county  certified 
copies of all judgments for restitution, reparation, fees, costs, fines and penalties 
which,  in  the  aggregate,  do  not  exceed  $1,000,  and,  if  so  transmitted,  it  shall  be 
the duty of each prothonotary to enter and docket the same of record in his office 
and to index the same as judgments are indexed, without requiring the payment of 
costs as a condition precedent to the entry thereof.
(3) The county clerk of courts shall, upon sentencing, pretrial disposition or other 
order, transmit to the Department of Probation of the respective county or other 
agent designated by the county commissioners of the county with the approval of 
the president judge of the county and to the county correctional facility to which 
the offender has been sentenced or to the Department of Corrections, whichever 
is appropriate, copies of all orders for restitution and amendments or alterations 
thereto, reparation, fees, costs, fines and penalties. This paragraph also applies in 
the case of costs imposed under section 9721(c.1)(relating to sentencing generally).
(4) The total amount for which the person is liable pursuant to this section may be 
entered as a judgment upon the person or the property of the person sentenced 
or  ordered,  regardless  of  whether  the  amount  has  been  ordered  to  be  paid  in 
installments.
(5) The county correctional facility to which the offender has been sentenced or 
the Department of Corrections shall be authorized to make monetary deductions 
from  inmate  personal  accounts  for  the  purpose  of  collecting  restitution  or  any 
other  court-ordered  obligation  or  costs  imposed  under  section  9721(c.1).  Any 
amount  deducted  shall  be  transmitted  by  the  Department  of  Corrections  or  the 
county  correctional  facility  to  the  probation  department  of  the  county  or  other 
agent  designated  by  the  county  commissioners  of  the  county  with  the  approval 
of  the  president  judge  of  the  county  in  which  the  offender  was  convicted.  The 
Department of Corrections shall develop guidelines relating to its responsibilities 
under this paragraph.

(b.1) Restitution file.--

Upon receipt of each order from the clerk of courts as provided 
in subsection (b)(3), the department of probation of the respective county or other 
agent designated by the county commissioners of the county with the approval of the 
president judge of the county shall open a restitution file for the purposes of recording 
the  amounts  of  restitution  deducted  by  the  Department  of  Corrections  or  county 
correctional facility or collected by the department of probation or the agent designated 
by the county commissioners of the county with the approval of the president judge 
7      Chapter 5     

Statutory Provisions and Rules of Court

(b.2)  Mandatory  payment  of  costs.--
of the county.

Notwithstanding  any  provision  of  law  to  the 
contrary, in the event the court fails to issue an order under subsection (a) imposing 
costs  upon  the  defendant,  the  defendant  shall  nevertheless  be  liable  for  costs,  as 
provided  in  section  9721(c.1),  unless  the  court  determines  otherwise  pursuant  to 
Pa.R.Crim.P. No. 706(C) (relating to fines or costs). The absence of a court order shall 
(c)  Period  of  time.--
not affect the applicability of the provisions of this section.

Notwithstanding  section  6353  (relating  to  limitation  on  and 
change in place of commitment) or 18 Pa.C.S. § 1106(c)(2) (relating to restitution for 
injuries to person or property), the period of time during which such judgments shall 
have full effect may exceed the maximum term of imprisonment to which the offender 
could have been sentenced for the crimes of which he was convicted or the maximum 
(d)  Priority.--
term of confinement to which the offender was committed.

Notwithstanding  any  other  statutory  provisions  in  this  or  any  other 
title, any lien obtained under this section shall maintain its priority indefinitely and no 
(e)  Preservation  of  assets  subject  to  restitution.--
writ of revival need be filed.

Upon  application  of  the 
Commonwealth,  the  court  may  enter  a  restraining  order  or  injunction,  require  the 
execution of a satisfactory performance bond or take any other action to preserve the 
availability of property which may be necessary to satisfy an anticipated restitution 
order under this section:

(1) upon the filing of a criminal complaint, information or indictment charging a 
criminal violation or a petition alleging delinquency for which restitution may be 
ordered and alleging that the property with respect to which the order is sought 
appears to be necessary to satisfy such restitution order and judgment; and
(2) if, after notice to persons appearing to have an interest in the property and an 
opportunity for a hearing, the court determines that:
 

(i) there is a substantial probability that:

 

(A) the Commonwealth will prevail on the underlying criminal charges or 
allegation of delinquency;
(B) restitution will be ordered exceeding $10,000 in value;
(C) the property appears to be necessary to satisfy such restitution order; 
And
(D)  failure  to  enter  the  order  will  result  in  the  property  being  destroyed, 
removed from the jurisdiction of the court or otherwise made unavailable 
for payment of the anticipated restitution order; and

(f) Temporary restraining order.--

(ii) the need to preserve the availability of the property through the entry of the 
requested order outweighs the hardship on any party against whom the order 
is to be entered.

A temporary restraining order under subsection 
(e)  may  be  entered  upon  application  of  the  Commonwealth  without  notice  or 
opportunity  for  a  hearing,  whether  or  not  a  complaint,  information,  indictment 
or  petition  alleging  delinquency  has  been  filed  with  respect  to  the  property,  if 
the  Commonwealth  demonstrates  that  there  is  probable  cause  to  believe  that  the 
property with respect to which the order is sought appears to be necessary to satisfy 
8      Chapter 5     

Statutory Provisions and Rules of Court

an  anticipated  restitution  order  under  this  section  and  that  provision  of  notice 
will  jeopardize  the  availability  of  the  property  to  satisfy  such  restitution  order  and 
judgment. Such a temporary order shall expire not more than ten days after the date on 
which it is entered, unless extended for good cause shown or unless the party against 
whom it is entered consents to an extension for a longer period. A hearing requested 
concerning an order entered under this subsection shall be held at the earliest possible 
(g)  Costs,  etc.--
time and prior to the expiration of the temporary order.

Any  sheriff’s  costs,  filing  fees  and  costs  of  the  county  probation 
department, clerk of courts or other appropriate governmental agency, including, but 
not limited to, any reasonable administrative costs associated with the collection of 
restitution, transportation costs and other costs associated with the prosecution, shall 
be borne by the defendant and shall be collected by the county probation department 
or other appropriate governmental agency along with the total amount of the judgment 
and  remitted  to  the  appropriate  agencies  at  the  time  of  or  prior  to  satisfaction  of 
(g.1)  Payment.--
judgment.

No  less  than  50% of  all  moneys collected  by  the county  probation 
department or other agent designated by the county commissioners of the county with 
the approval of the president judge of the county pursuant to subsection (b)(1) and 
deducted pursuant to subsection (b)(5) shall, until the satisfaction of the defendant’s 
restitution  obligation,  be  used  to  pay  restitution  to  victims.  Any  remaining  moneys 
(h)  Effect  on  contempt  proceedings.--
shall be used to pay fees, costs, fines, penalties and other court-ordered obligations.

This  section  shall  not  affect  contempt 

proceedings mandated by 18 Pa.C.S. § 1106(f).

DISTRIBUTION OF FUNDS COLLECTED BY CRIMINAL DIVISION

 Restitution addressed in subsection (1)(i)

204 Pa. Code § 29.405

The  Supreme  Court  of  Pennsylvania,  pursuant  to  general  authority  set  forth  by  Art. 
V
,  §  10  of  the  Pennsylvania  Constitution,  and  42  Pa.C.S.  §  1721,  has  authorized  the 
Court  Administrator  of  Pennsylvania  to  promulgate  regulations  in  accordance  with 
all applicable statutory provisions pertaining to the distribution and disbursement of 
all fines, fees, costs, reparations, restitution, penalties and other remittances imposed 
and collected by the Criminal Division of the Courts of Common Pleas, Philadelphia 
Municipal Court, and any other entity on behalf of the Court using the Common Pleas 
Criminal Court Case Management System (CPCMS).

(1) Schedule for Standard Distribution of Funds Collected by the Criminal Division of 
the Courts of Common Pleas, Philadelphia Municipal Court, and any other entity on 
behalf of the Court Using the Common Pleas Criminal Court Case Management System 
(CPCMS).

9      Chapter 5     

Statutory Provisions and Rules of Court

(i)  All  fines,  fees,  costs,  reparations,  restitution,  penalties  and  other  remittances 
imposed  and  collected  by  the  Criminal  Division  of  the  Courts  of  Common  Pleas, 
Philadelphia Municipal Court and any other entity on behalf of the Court using the 
CPCMS shall be distributed in the following prioritized order:

(A) The collection agency fee provided for in 42 Pa.C.S. Section 9730.1 shall 
be  paid  first,  but  only  in  cases  wherein  the  private  collection  agency  has 
secured the funds from the defendant or a third party and the payment is 
made  to  the  court.  No  more  than  25%  of  each  payment  secured  from  the 
defendant by the private collection agency may be applied towards this fee.
(B) The Crime Victim Compensation Fund and Victim Witness Services Fund 
shall be paid, but only in cases in which the defendant has been sentenced to 
incarceration,  probation  or  is  admitted  into  an  accelerated  rehabilitative 
disposition program (see 18 P. S. § 11.1101). Otherwise, these costs shall be 
distributed in accordance with subsection (A)(6) of these regulations.
(C)  At  least  50%  of  any  additional  payment  shall  go  to  restitution  until  it 
is  paid  in  full  (see  42  Pa.C.S.  §  9728(g.1)).  When  restitution  is  ordered  to 
more than one recipient at the same time, the court shall set the priority of 
payment as follows, in accordance with 18 Pa.C.S. § 1106(c)(1)(ii)(A)--(D):

(I) the victim;
(II) the Crime Victim’s Compensation Board;
(III) any other governmental agency which has provided reimbursement 
to the victim as a result of the defendant’s criminal conduct;
(IV) any insurance company which has provided reimbursement to the 
victim as a result of the defendant’s criminal conduct.

(D) Judicial Computer Project/Access To Justice (JCS/ATJ) Fee (see 42 Pa.C.S. 
§ 3733(a.1)).
(E) Electronic monitoring fees, offender supervision fees (as set forth in 18 P. 
S. § 11.1102(c)), alcohol highway safety school fees (see 75 Pa.C.S. § 1548(b)), 
service fees (such as sheriff’s fees set forth in 42 P. S. § 21101 et. seq., and 
constable’s fees set forth in 42 Pa.C.S. § 2950), transcript fees (see Pa.R.J.A. 
No.  000.7),  witness  fees  (as  provided  for  in  42  Pa.C.S.  §  5903),  and  other 
similar fees shall be paid based upon a pro-rated formula, unless the fees are 
prioritized by court order or the judicial district. The Administrative Office 
of Pennsylvania Courts may preclude a fee from being classified as an “other 
similar fee.” The amount of the payment allocated to each outstanding item 
shall be determined by dividing the outstanding balance for the individual 
item  by  the  combined  total  of  the  outstanding  balances  for  all  items.  The 
resulting  number  is  then  multiplied  by  the  amount  of  the  payment  to 
determine how much of the payment shall be allocated to the outstanding 
balance of the individual item involved.

For example, a defendant owes $80.00 in electronic monitoring fees, $10.00 
in offender supervision fees, and $10.00 in service fees, for a total of $100.00 
in outstanding fees. Defendant makes a payment of $10.00 in his/her case. 
To  determine  the  amount  to  be  allocated  to  electronic  monitoring  fees, 

10      Chapter 5     

Statutory Provisions and Rules of Court

 

divide the outstanding balance of the electronic monitoring fee ($80.00) by 
the combined total outstanding balances of all items ($80.00 + 10.00 + 10.00 
= $100.00). The result in this example is .8 (80/100). Multiply the resulting 
figure by the amount of the payment to determine the allocation to electronic 
monitoring fees, which in this example is $8.00 (.8 x $10.00= $8.00).
 
(F) All other fines, fees, costs, reparations, penalties and other remittances 
except  for  judgment  or  satisfaction  fees  shall  be  distributed  based  upon  a 
pro-rated formula. Specifically, the amount of the payment allocated to each 
outstanding item shall be determined by dividing the outstanding balance 
for  the  individual  item  by  the  combined  total  of  the  outstanding  balances 
for all items. The resulting number is then multiplied by the amount of the 
payment to determine how much of the payment shall be allocated to the 
outstanding balance of the individual item involved.

For example, a defendant owes $80.00 in costs, $10.00 in fines, and $10.00 in 
fees,  for  a  total  of  $100.00  in  outstanding  costs,  fines  and  fees.  Defendant 
makes a payment of $20.00 in his/her case. To determine the amount to be 
allocated to the fines, divide the outstanding balance of the fines ($10.00) by 
the combined total outstanding balances of all items ($80.00 + 10.00 + 10.00 
= $100.00). The result in this example is .1 (10/100). Multiply the resulting 
figure by the amount of the payment to determine the allocation to the fines, 
which in this example is $2.00 (.1 x $20.00= $2.00).

(G)  Fees  charged  by  the  clerk  of  courts,  prothonotary,  other  entity  in  the 
county  responsible for the distribution and disbursement of all fines, fees, 
costs, reparations, restitution, penalties, or other remittances, or the Clerk of 
Philadelphia Municipal Court for the entry or satisfaction of a civil judgment 
related to a criminal proceeding, as set forth in 42 Pa.C.S. § 1725, 42 P. S. §§ 
21010,  21042,  and  21071  shall  be  paid  last.  The  amount  of  the  payment 
allocated to each fee shall be determined by dividing the outstanding balance 
for the individual fee by the combined total of the outstanding balances for 
both  fees.  The  resulting  number  is  then  multiplied  by  the  amount  of  the 
payment to determine how much of the payment shall be allocated to the 
outstanding balance of the individual fee involved.

For  example,  a  defendant  owes  $60.00  in  judgment  fees  and  $40.00  in 
satisfaction fees for a total of $100.00 in outstanding fees. Defendant makes 
a payment of $10.00 in his/her case. To determine the amount to be allocated 
to judgment fee, divide the outstanding balance of the judgment fee ($60.00) 
by the combined total outstanding balances of all items ($60.00 + 40.00 = 
$100.00). The  result  in  this  example  is  .6  (60/100). Multiply  the  resulting 
figure by the amount of the payment to determine the allocation to judgment 
fee, which in this example is $6.00 (.6 x $10.00 = $6.00).

11      Chapter 5     

Statutory Provisions and Rules of Court

(ii) Each payment shall be applied to a single case, unless otherwise ordered by the 
court.

(2)  The  county  probation  department  or  other  agent  designated  to  collect  all  fines, 
fees,  costs,  reparations,  restitution,  penalties  and  other  remittances  pursuant  to  42 
Pa.C.S. § 9728, shall use the Common Pleas Criminal Court Case Management System 
when performing collection related activities.
(3) Nothing in these regulations shall be applicable to the collection and/or distribution 
of any filing fee which is authorized by law. Filing fees shall include but not be limited 
to the clerk of courts automation fee set forth in 42 Pa.C.S. Section 1725.4(b).

THE STATUTORY DEFINITION OF A “VICTIM” (Crime Victims Act)

42 PA. STAT. § 11.103
Definitions

“Victim.”

 The term means the following: 

(1) A direct victim.
(2) A parent or legal guardian of a child who is a direct victim, except when the 

parent or legal guardian of the child is the alleged offender.

(3) A  minor  child  who  is  a  material  witness  to  any  of  the  following  crimes  and 
offenses  under  18  Pa.C.S.  (relating  to  crimes  and  offenses)  committed  or 
attempted against a member of the child’s family:

Chapter 25 (relating to criminal homicide).
Section 2702 (relating to aggravated assault).
Section 3121 (relating to rape).
(4) A family member of a homicide victim, including stepbrothers or stepsisters, 
stepchildren, stepparents or a fiance, one of whom is to be identified to receive 
communication as provided for in this act, except where the family member is 
the alleged offender.

SUMMARY CONVICTION – SENTENCE INCLUDES RESTITUTION

 Requirements for Sentence of Restitution in section (F)(1)

Pa.R.Crim.P. 454
Trial in Summary Cases

(A) Immediately prior to trial in a summary case:

  (1) the defendant shall be advised of the charges in the citation or complaint;
  (2) if, in the event of a conviction, there is a reasonable likelihood of a sentence of  
imprisonment or probation, the defendant shall be advised of the right to counsel 
and

(a) upon request, the defendant shall be given a reasonable opportunity to secure 

12      Chapter 5     

Statutory Provisions and Rules of Court

counsel, or 
(b)  if  the  defendant  is  without  financial  resources  or  is  otherwise  unable  to 
employ counsel, counsel shall be assigned as provided in Rule 122; and

(3) the defendant shall enter a plea.

(B) If the defendant pleads guilty, the issuing authority shall impose sentence. If the 
defendant pleads not guilty, the issuing authority shall try the case in the same manner 
as trials in criminal cases are conducted in the courts of common pleas when jury trial 
has  been  waived;  however,  in  all  summary  cases  arising  under  the  Vehicle  Code  or 
local traffic ordinances, the law enforcement officer observing the defendant’s alleged 
offense may, but shall not be required to, appear and testify against the defendant. In 
no event shall the failure of the law enforcement officer to appear, by itself, be a basis 
for dismissal of the charges against the defendant.
(C)  The  attorney  for  the  Commonwealth  may  appear  and  assume  charge  of  the 
prosecution.  When  the  violation  of  an  ordinance  of  a  municipality  is  charged,  an 
attorney  representing  that  municipality,  with  the  consent  of  the  attorney  for  the 
Commonwealth, may appear and assume charge of the prosecution. When no attorney 
appears on behalf of the Commonwealth, the affiant may be permitted to ask questions 
of any witness who testifies.
(D) The verdict and sentence, if any, shall be announced in open court immediately 
upon the conclusion of the trial, except as provided in paragraph (E).
(E)  If  the  defendant  may  be  sentenced  to  intermediate  punishment,  the  issuing 
authority  may  delay  imposing  sentence  pending  confirmation  of  the  defendant’s 
eligibility for intermediate punishment.
(F) At the time of sentencing, the issuing authority shall:  

(1) if the defendant’s sentence includes restitution, a fine, or costs, state the date on 
which payment is due. If the defendant is without the financial means to pay the 
amount in a single remittance, the issuing authority may provide for installment 
payments and shall state the date on which each installment is due;
(2) advise the defendant of the right to appeal within 30 days for a trial 

de novo

 in 

   

   

the court of common pleas, and that if an appeal is filed:
(a) the execution of sentence will be stayed and the issuing authority may set 
bail or collateral; and
(b)  the  defendant  must  appear  for  the  de  novo  trial  or  the  appeal  may  be  
dismissed;

(3) if a sentence of imprisonment has been imposed, direct the defendant to appear 
for the execution of sentence on a date certain unless the defendant files a notice 
of  appeal  within  the  30-day  period,  and  advise  that,  if  the  defendant  fails  to 
appear on that date, a warrant for the defendant’s arrest will be issued; and
(4) issue a written order imposing sentence, signed by the issuing authority. The 
order shall include the information specified in paragraphs (F)(1) through (F)
(3), and a copy of the order shall be given to the defendant.

13      Chapter 5     

Statutory Provisions and Rules of Court

II. Special Statutory Restitution Provisions   

IDENTITY THEFT

18 Pa.C.S.A. § 1107.1
Restitution for Identity Theft

(a) General rule.--

 
The court shall, in addition to any other restitution sentence 
or order authorized by law, sentence a person convicted of a violation of section 4106 
(relating to access device fraud) or 4120 (relating to identity theft) to make restitution 
for all reasonable expenses incurred by the victim or on the victim’s behalf:

(1) to investigate theft of the victim’s identity;
(2) to bring or defend civil or criminal actions related to theft of the victim’s                  
identity; or
(3) to take other efforts to correct the victim’s credit record or negative credit 
reports related to theft of the victim’s identity.

(b)  Types  of  expenses.--

The  types  of  expenses  recoverable  under  this  section 

 
include, but are not limited to:

(1) fees for professional services by attorneys or accountants;
(2) fees and costs imposed by credit bureaus, associated with efforts to correct 
the victim’s credit record, incurred in private investigations or associated with 
contesting unwarranted debt collections; and
(3) court costs and filing fees.

CLEANUP OF CLANDESTINE LABORATORIES

18 Pa.C.S.A. § 1110
Restitution for Cleanup of Clandestine Laboratories

 

(a)  General  rule.--

When  any  person  is  convicted  of  an  offense  under  The 
Controlled Substance, Drug, Device and Cosmetic Act1 involving the manufacture of 
a  controlled  substance,  the  court  shall  order  the  person  to  make  restitution  for  the 
costs incurred in the cleanup, including labor costs, equipment and supplies, of any 
 
clandestine laboratory used by the person to manufacture the controlled substance.

(b)  Definitions.--

As  used  in  this  section,  the  following  words  and  phrases  shall 

have the meanings given to them in this subsection:

“Clandestine laboratory.” A location or site, including buildings or vehicles, in which 
glassware,  heating  devices,  precursors  or  related  reagents  or  solvents  which  are 
intended to be used or are used to unlawfully manufacture a controlled substance are 
located.

“Cleanup.” Actions necessary to contain, collect, control, identify, analyze, disassemble, 
treat,  remove  or  otherwise  disperse  all  substances  and  materials  in  a  clandestine 
14      Chapter 5     

Statutory Provisions and Rules of Court

laboratory, including those found to be hazardous waste and any contamination caused 
by those substances or materials.

“The Controlled Substance, Drug, Device and Cosmetic Act.” The act of April 14, 1972 
1
(P.L. 233, No. 64),
 known as The Controlled Substance, Drug, Device and Cosmetic Act.

TERRORISTIC THREATS

 Restitution addressed in subsection (b)

18 Pa.C.S.A. § 2706
Terroristic Threats

 

(a)  Offense  defined.--

A  person  commits  the  crime  of  terroristic  threats  if  the 

person communicates, either directly or indirectly, a threat to:

(1) commit any crime of violence with intent to terrorize another;
(2)  cause  evacuation  of  a  building,  place  of  assembly  or  facility  of  public 
transportation; or
(3) otherwise cause serious public inconvenience, or cause terror or serious 
public  inconvenience with reckless disregard of the risk of causing such terror 
or inconvenience.

 

(b)  Restitution.--

A  person  convicted  of  violating  this  section  shall,  in  addition 
to  any  other  sentence  imposed  or  restitution  ordered  under  42  Pa.C.S.  §  9721(c) 
(relating to sentencing generally), be sentenced to pay restitution in an amount equal 
to the cost of the evacuation, including, but not limited to, fire and police response; 
emergency medical service or emergency preparedness response; and transportation 
 
of an individual from the building, place of assembly or facility.

(c) Preservation of private remedies.--

No judgment or order of restitution shall 
debar  a  person,  by  appropriate  action,  to  recover  from  the  offender  as  otherwise 
provided by law, provided that any civil award shall be reduced by the amount paid 
 
under the criminal judgment.

(d) Grading.--

An offense under subsection (a) constitutes a misdemeanor of the 
first degree unless the threat causes the occupants of the building, place of assembly 
or  facility  of  public  transportation  to  be  diverted  from  their  normal  or  customary 
 
operations, in which case the offense constitutes a felony of the third degree.

(e) Definition.--

As used in this section, the term “communicates” means conveys 
in  person  or  by  written  or  electronic  means,  including  telephone,  electronic  mail, 
Internet, facsimile, telex and similar transmissions.

15      Chapter 5     

Statutory Provisions and Rules of Court

THREAT TO USE WEAPONS OF MASS DESTRUCTION

 Restitution addressed in subsection (c)

18 Pa.C.S.A. § 2715
Threat to Use Weapons of Mass Destruction

(a) Offense defined.--
 

 

A person who intentionally:

(1), (2) Deleted.
(3)  reports  without  factual  basis  of  knowledge  the  existence  or  potential 
existence of a weapon of mass destruction; or
(4)  threatens  by  any  means  the  placement  or  setting  of  a  weapon  of  mass 
destruction;  commits  an  offense  under  this  section.  A  separate  offense  shall 
occur for each report or threat to place or set a weapon of mass destruction.

(b) Penalty.--

An offense under this section shall be graded as follows:

(1) Except as set forth in paragraph (2), a misdemeanor of the first degree.
(2) If the report or threat causes the occupants of a building, place of assembly or 
facility of public transportation to be diverted from their normal or customary 
operations, a felony of the third degree.
(3) A felony of the second degree if the offense occurs during a declared state of 
emergency and the report or threat causes disruption to the operations of any 
person,  business  entity  or  governmental  agency  where  the  weapon  of  mass 
destruction is reported to exist or threatened to be placed or set.

(c)  Emergency  response  costs.--

A  person  convicted  of  violating  this  section  shall, 
in  addition  to  any  other  sentence  imposed  or  restitution  ordered  under  42  Pa.C.S. 
§  9721(c)  (relating  to  sentencing  generally),  be  sentenced  to  pay  restitution  in  an 
amount equal to the cost of the evacuation, including, but not limited to, fire and police 
response;  emergency  medical  service  or  emergency  preparedness  response;  and 
(c.1) Preservation of private remedies.--
transportation of an individual from the building, place of assembly or facility.

No judgment or order of restitution shall 
debar  a  person,  by  appropriate  action,  to  recover  from  the  offender  as  otherwise 
provided by law, provided that any civil award shall be reduced by the amount paid 
(c.2) Application of section.--
under the criminal judgment.

This section shall not apply to lawful conduct by a party 
1
to a labor dispute as defined in the act of June 2, 1937 (P.L. 1198, No. 308),
 known as 
(d) Definitions.--
the Labor Anti-Injunction Act, or to any constitutionally protected activity.

As used in this section, the following words and phrases shall have 

the meanings given to them in this subsection:
“Biological agent.” A natural or genetically engineered pathogen, toxin, virus, bacteria, 
prion, fungus or microorganism which causes infections, disease or bodily harm.
“Bomb.” An explosive device used for unlawful purposes.
“Chemical agent.” Any of the following:

(1) A nerve agent, including tabun (GA), sarin (GB), soman (GD), GF and VX.
(2) A choking agent, including phosgene (CG) and diphosgene (DP).
(3) A blood agent, including hydrogen cyanide (AC), cyanogen chloride (CK) and 

16      Chapter 5     

Statutory Provisions and Rules of Court

arsine (SA).
(4) A blister agent. This paragraph includes:

(i) Mustard (H).
(ii) Sulfur mustard (HD).
(iii) HN-1.
(iv) HN-2.
(v) Sulfur mustard (HN-3).
(vi) An arsenical, such as lewisite (L).
(vii) An urticant, such as CX.
(viii) An incapacitating agent, such as B2.

(5) Any other chemical element or compound which causes death or bodily harm.

 
“Nuclear agent.” A radioactive material.
“Weapon  of  mass  destruction.”  A  bomb,  biological  agent,  chemical  agent  or  nuclear 
agent.

WEAPONS OF MASS DESTRUCTION

 Restitution addressed in subsection (d)

18 Pa.C.S.A. § 2716
Weapons of Mass Destruction

(a) Unlawful possession or manufacture.--

A person commits an offense if the person, 
without lawful authority to do so, intentionally, knowingly or recklessly possesses or 
(b) Use.--
manufactures a weapon of mass destruction.

A person commits an offense if the person, without lawful authority to do so, 
intentionally, knowingly or recklessly sells, purchases, transports or causes another to 
transport, delivers or causes to be delivered or uses a weapon of mass destruction and 
if such action causes any of the following:

(1) Illness or injury to another individual.
(2) Damage to or disruption of a water or food supply or public natural resources, 
including waterways, State forests and parks, surface water, groundwater and 
wildlife.
(c) Grading.—
(3) Evacuation of a building, place of assembly or facility of public transportation.

(d) Restitution.--

(1) A first offense under subsection (a) constitutes a felony of the second degree. 
A subsequent offense under subsection (a) constitutes a felony of the first degree.
(2) An offense under subsection (b)(1) constitutes a felony of the first degree. If 
the offense results in the death of an individual, the defendant shall be sentenced 
to life imprisonment.
(3) An offense under subsection (b)(2) or (3) constitutes a felony of the first degree.
A person convicted of violating this section shall, in addition to any 
other sentence imposed or restitution ordered under 42 Pa.C.S. § 9721(c) (relating to 
sentencing generally), be sentenced to pay restitution in an amount equal to the cost 
17      Chapter 5     

Statutory Provisions and Rules of Court

of the evacuation, including, but not limited to, fire and police response; emergency 
medical  service  or  emergency  preparedness  response;  and  transportation  of  an 
(e)  Preservation  of  private  remedies.--
individual from the building, place of assembly or facility.

No  judgment  or  order  of  restitution  shall 
debar  a  person,  by  appropriate  action,  to  recover  from  the  offender  as  otherwise 
provided by law, provided that any civil award shall be reduced by the amount paid 
(f) Possession.--
under the criminal judgment.

For purposes of this section, an individual shall not be deemed to be 
in possession of an agent if the individual is naturally exposed to or innocently infected 
(g) Enforcement.—
or contaminated with the agent.

(1)  In  addition  to  the  authority  conferred  upon  the  Attorney  General  under 
1
sections 205 and 206 of the act of October 15, 1980 (P.L. 950, No. 164),
 known 
as  the  Commonwealth  Attorneys  Act,  the  Attorney  General  has  the  authority  to 
investigate  and  to  institute  criminal  proceedings  for  a  violation  of  this  section 
committed:
 
 
 
(2) Each district attorney has the authority to investigate and to institute criminal 
proceedings for a violation of this section.

(i) anywhere in this Commonwealth;
(ii) in different counties; or
(iii) in this Commonwealth and another jurisdiction.

 
 
 

(h)  Jurisdiction.--

No  person  charged  with  a  violation  of  this  section  shall  have 
standing to challenge the authority of the Attorney General under subsection (g)(1). If 
a challenge is made in violation of this subsection, the challenge shall be dismissed, and 
no relief shall be available in the courts of this Commonwealth to the person making 
(i) Definitions.--
the challenge.

As used in this section, the following words and phrases shall have 

the meanings given to them in this subsection:
“Biological agent.” A natural or genetically engineered pathogen, toxin, virus, bacteria, 
prion, fungus or microorganism which causes infections, disease or bodily harm.
“Bomb.” An explosive device used for unlawful purposes.
“Chemical agent.” Any of the following:

(1) A nerve agent, including tabun (GA), sarin (GB), soman (GD), GF and VX.
(2) A choking agent, including phosgene (CG) and diphosgene (DP).
(3) A blood agent, including hydrogen cyanide (AC), cyanogen chloride (CK) and 
arsine (SA).
 (4) A blister agent. This paragraph includes:

(i) Mustard (H).
(ii) Sulfur mustard (HD).
(iii) HN-1.
(iv) HN-2.
(v) Nitrogen mustard (HN-3).
(vi) An arsenical, such as lewisite (L).
(vii) An urticant, such as CX.
(viii) An incapacitating agent, such as B2.

18      Chapter 5     

Statutory Provisions and Rules of Court

(5) Any other chemical element or compound which causes death or bodily harm.

“Nuclear agent.” A radioactive material.

“Weapon  of  mass  destruction.”  A  biological  agent,  bomb,  chemical  agent  or  nuclear 
agent.

CRUELTY TO ANIMALS

 Reparations for guide, hearing or service dog addressed in subsection (a)(2.1)
(i)(A)
 Reparations for guide, hearing or service dog addressed in subsection (a.1)(3)
 Restitution and Reparations for guide, hearing or service dog addressed in 
subsection (a.2)(2)
 Necessary expenses incurred when any animal is transported in a cruel or 
inhumane manner addressed in subsection (e)

18 Pa.C.S.A. § 5511
Cruelty to Animals

(a) Killing, maiming or poisoning domestic animals or zoo animals, etc.—

(1)  A  person  commits  a  misdemeanor  of  the  second  degree  if  he  willfully  and 
maliciously:

(i) Kills, maims or disfigures any domestic animal of another person or any 
domestic fowl of another person.
(ii)  Administers  poison  to  or  exposes  any  poisonous  substance  with  the 
intent to administer such poison to any domestic animal of another person 
or domestic fowl of another person.
(iii) Harasses, annoys, injures, attempts to injure, molests or interferes with 
a dog guide for an individual who is blind, a hearing dog for an individual 
who  is  deaf  or  audibly  impaired  or  a  service  dog  for  an  individual  who  is 
physically limited.

 
 

 

Any person convicted of violating the provisions of this paragraph shall be 
sentenced to pay a fine of not less than $500.
(2) A person commits a felony of the third degree if he willfully and maliciously:

(i) Kills, maims or disfigures any zoo animal in captivity.
(ii)  Administers  poison  to  or  exposes  any  poisonous  substance  with  the 
intent to administer such poison to any zoo animal in captivity.

(2.1)  (i) A person commits a misdemeanor of the first degree if he willfully and 
 

      maliciously:

(A) Kills, maims, mutilates, tortures or disfigures any dog or cat, whether 
belonging  to  himself  or  otherwise.  If  a  person  kills,  maims,  mutilates, 
tortures or disfigures a dog guide for an individual who is blind, a hearing 

19      Chapter 5     

Statutory Provisions and Rules of Court

dog for an individual who is deaf or audibly impaired or a service dog 
for  an  individual  who  is  physically  limited,  whether  belonging  to  the 
individual or otherwise, that person, in addition to any other applicable 
penalty,  shall  be  required  to  make  reparations  for  veterinary  costs  in 
treating  the  dog  and,  if  necessary,  the  cost  of  obtaining  and  training  a 
replacement dog.
(B) Administers poison to or exposes any poisonous substance with the 
intent to administer such poison to any dog or cat, whether belonging to 
himself or otherwise.

(ii) Any person convicted of violating the provisions of this paragraph shall 
be sentenced to pay a fine of not less than $1,000 or to imprisonment for 
not more than two years, or both. The court may also order a presentence 
mental evaluation. A subsequent conviction under this paragraph shall be a 
felony of the third degree. This paragraph shall apply to dogs and cats only.
(iii) The killing of a dog or cat by the owner of that animal is not malicious if 
it is accomplished in accordance with the act of December 22, 1983 (P.L. 303, 
1
No. 83),
 referred to as the Animal Destruction Method Authorization Law.

(3) This subsection shall not apply to:

(i) the killing of any animal taken or found in the act of actually destroying 
any domestic animal or domestic fowl;
(ii) the killing of any animal or fowl pursuant to the act of June 3, 1937 (P.L. 
2
1225, No. 316),
 known as The Game Law, or 34 Pa.C.S. §§ 2384 (relating to 
declaring dogs public nuisances) and 2385 (relating to destruction of dogs 
declared public nuisances), or the regulations promulgated thereunder; or
(iii)  such  reasonable  activity  as  may  be  undertaken  in  connection  with 
vermin control or pest control.

(a.1) Guide dogs.—

(1) A person commits a misdemeanor of the third degree if he is the owner or co-
owner of a dog that kills, maims or disfigures a guide dog of an individual who is 
blind, a hearing dog of an individual who is deaf or audibly impaired or a service 
dog of an individual who is physically limited without provocation by the guide, 
hearing or service dog or the individual.
(2) A person commits an offense under this subsection only if the person knew or 
should have known that the dog he owns or co-owns had a propensity to attack 
human beings or domestic animals without provocation and the owner or co-owner 
knowingly or recklessly failed to restrain the dog or keep the dog in a contained, 
secure manner.
(3)  Any  person  convicted  of  violating  the  provisions  of  this  subsection  shall  be 
sentenced  to  pay  a  fine  of  not  more  than  $5,000  and  shall  be  ordered  to  make 
reparations for veterinary costs in treating the guide, hearing or service dog and, if 
necessary,  the  cost  of  obtaining  and  training  a  replacement  guide,  hearing  or 
service dog.

(a.2) Civil penalty and restitution.—

(1) A person who is the owner or co-owner of a dog that kills, maims or disfigures 
a guide dog of an individual who is blind, a hearing dog of an individual who is deaf 

20      Chapter 5     

Statutory Provisions and Rules of Court

or audibly impaired or a service dog of an individual who is physically limited shall 
be subject to paragraph (2) if all of the following apply:

(i)  The  owner  or  co-owner  knew  the  dog  had  a  propensity  to  attack  human 
beings or domestic animals.
(ii)  The  owner  or  co-owner  failed  to  restrain  the  dog  or  keep  the  dog  in  a 
contained, secure manner.

(2) A court of common pleas may impose any of the following upon any person 
who is the owner or co-owner of a dog under paragraph (1):

(i) A civil penalty of up to $15,000.
(ii) Reparations for veterinary costs in treating the guide, hearing or service dog 
and, if necessary, the cost of retraining the dog or of obtaining and training a 
replacement guide, hearing or service dog.
(iii) Loss of income for the time the individual is unable to work due to the 
unavailability of the guide, hearing or service dog.

(b)  Regulating  certain  actions  concerning  fowl  or  rabbits.--

A  person  commits 
a  summary  offense  if  he  sells,  offers  for  sale,  barters,  or  gives  away  baby  chickens, 
ducklings, or other fowl, under one month of age, or rabbits under two months of age, 
as pets, toys, premiums or novelties or if he colors, dyes, stains or otherwise changes 
the natural color of baby chickens, ducklings or other fowl, or rabbits or if he brings 
or transports the same into this Commonwealth. This section shall not be construed 
to prohibit the sale or display of such baby chickens, ducklings, or other fowl, or such 
rabbits,  in  proper  facilities  by  persons  engaged  in  the  business  of  selling  them  for 
(c) Cruelty to animals.—
purposes of commercial breeding and raising.

(1) A person commits an offense if he wantonly or cruelly illtreats, overloads, beats, 
otherwise  abuses  any  animal,  or  neglects  any  animal  as  to  which  he  has  a  duty 
of  care,  whether  belonging  to  himself  or  otherwise,  or  abandons  any  animal,  or 
deprives any animal of necessary sustenance, drink, shelter or veterinary care, or 
access to clean and sanitary shelter which will protect the animal against inclement 
weather and preserve the animal’s body heat and keep it dry.
(2)  
 
 
 
 
 
 
 
 
(A) The action or omission for which the person was convicted for 
 
 
a subsequent time was performed on a dog or cat.
 
 
(B) The dog or cat was seriously injured, suffered severe physical 
 
 
distress or was placed at imminent risk of serious physical harm  
 
 
 
as the result of the person’s action or omission.
 
(3) This subsection shall not apply to activity undertaken in normal agricultural 
operation.

(i) Except as provided in subparagraph (ii), a person convicted of violating 
paragraph (1) commits a summary offense.
(ii) A person convicted for a second or subsequent time of violating 
paragraph (1) commits a misdemeanor of the third degree if all of the 
following occurred:
 
 
 
 
 

(d)  Selling  or  using  disabled  horse.--

A  person  commits  a  summary  offense  if  he 
offers for sale or sells any horse, which by reason of debility, disease or lameness, or 
for other cause, could not be worked or used without violating the laws against cruelty 
21      Chapter 5     

Statutory Provisions and Rules of Court

to animals, or leads, rides, drives or transports any such horse for any purpose, except 
that of conveying the horse to the nearest available appropriate facility for its humane 
(e) Transporting animals in cruel manner.--
keeping or destruction or for medical or surgical treatment.

A person commits a summary offense 
if he carries, or causes, or allows to be carried in or upon any cart, or other vehicle 
whatsoever, any animal in a cruel or inhumane manner. The person taking him into 
custody may take charge of the animal and of any such vehicle and its contents, and 
deposit the same in some safe place of custody, and any necessary expenses which may 
be incurred for taking charge of and keeping the same, and sustaining any such animal, 
shall be a lien thereon, to be paid before the same can lawfully be recovered, or the 
said expenses or any part thereof remaining unpaid may be recovered by the person 
incurring the same from the owner of said creature in any action therefor.
For the purposes of this section, it shall not be deemed cruel or inhumane to transport 
live poultry in crates so long as not more than 15 pounds of live poultry are allocated 
to each cubic foot of space in the crate.

. . . .

●	 Commonwealtlh v. Lee, 947 A.2d 199 (Pa. Super. 2008), appeal denied, 
981  A.2d  218  (Pa.  2009)(table):  Trial  court  had  statutory  authority  to 
require  defendant  convicted  of  cruelty  to  animals  to  pay  restitution  in 
the  amount  of  $3,156.00  to  shelter  that  had  provided  medical  care  to 
defendant’s  dog;  section  of  crimes  code  governing  cruelty  to  animals 
permitted  authority  imposing  sentence  upon  conviction  to  require  that 
owner pay cost of keeping, care and destruction of animal.

FACSIMILE WEAPONS OF MASS DESTRUCTION
 

 

► Restitution addressed in subsection (b.1)

18 Pa.C.S.A. § 5516
Facsimile weapons of Mass Destruction

(a) Offense  defined.--

A  person  commits  an  offense  if  the  person  intentionally, 
knowingly or recklessly manufactures, sells, purchases, transports or causes another 
to transport, delivers or causes another to deliver, possesses or uses a facsimile weapon 
of mass destruction and by such action causes any of the following:

(1) Terrifying, intimidating, threatening or harassing an individual.  
(2) Alarm or reaction on the part of any of the following: 

(i)  A  public  or  volunteer  organization  that  deals  with  emergencies  involving 
danger to life or property.
(ii) A law enforcement organization.

(3) Serious public inconvenience not limited to the evacuation of a building, place 
of assembly or facility of public transportation.

22      Chapter 5     

Statutory Provisions and Rules of Court

(b) Grading.--
(b.1) Restitution.--

An offense under this section is a felony of the third degree.

A person convicted of violating this section shall, in addition to any 
other sentence imposed or restitution ordered under 42 Pa.C.S. § 9721(c) (relating to 
sentencing generally), be sentenced to pay restitution in an amount equal to the cost 
of the evacuation, including, but not limited to, fire and police response; emergency 
medical  service  or  emergency  preparedness  response;  and  transportation  of  an 
(b.2) Preservation of private remedies.--
individual from the building, place of assembly or facility.

No judgment or order of restitution shall 
debar  a  person,  by  appropriate  action,  to  recover  from  the  offender  as  otherwise 
provided by law, provided that any civil award shall be reduced by the amount paid 
(b.3) Enforcement.--  
under the criminal judgment.

(1)  In  addition  to  the  authority  conferred  upon  the  Attorney  General  under 
1
sections 205 and 206 of the act of October 15, 1980 (P.L. 950, No. 164),
 known 
as  the  Commonwealth  Attorneys  Act,  the  Attorney  General  has  the  authority  to 
investigate  and  to  institute  criminal  proceedings  for  a  violation  of  this  section 
committed:

(i) anywhere in this Commonwealth;
(ii) in different counties; or
(iii) in this Commonwealth and another jurisdiction.

(b.4)  Jurisdiction.--

(2) Each district attorney has the authority to investigate and to institute criminal 
proceedings for a violation of this section.

No  person  charged  with  a  violation  of  this  section  shall  have 
standing to challenge the authority of the Attorney General under subsection (g)(1). If 
a challenge is made in violation of this subsection, the challenge shall be dismissed, and 
no relief shall be available in the courts of this Commonwealth to the person making 
(c) Definitions.--
the challenge.

As used in this section, the following words and phrases shall have 

the meanings given to them in this subsection:
“Facsimile biological agent.” A material or substance which:  

(1)  resembles  in  appearance  and  external  qualities  a  natural  or  genetically 
engineered pathogen, toxin, virus, bacteria, prion, fungus or microorganism which 
causes infections, disease or bodily harm; but
(2) does not have the capacity to cause infectious disease or bodily harm.

(1) resembles in appearance and external qualities an explosive or incendiary 
device; but
(2) does not have the capability to cause an explosion or fire.

“Facsimile bomb.” A device which: 
 
 
 
“Facsimile chemical agent.” A material or substance which does not have the capacity to 
cause death or bodily harm but which resembles in appearance and external qualities 
any of the following:  
(1) A nerve agent, including tabun (GA), sarin (GB), soman (GD), GF and VX.
 
(2) A choking agent, including phosgene (CG) and diphosgene (DP).  
 
(3) A blood agent, including hydrogen cyanide (AC), cyanogen chloride (CK) and 
 
arsine (SA). 
 
23      Chapter 5     

Statutory Provisions and Rules of Court

(i) Mustard (H).
(ii) Sulfur mustard (HD).
(iii) HN-1.
(iv) HN-2.
(v) Nitrogen mustard (HN-3).
(vi) An arsenical, such as lewisite (L).
(vii) An urticant, such as CX.
(viii) An incapacitating agent, such as B2. 

(4) A blister agent. This paragraph includes:
 
 
 
 
 
 
 
 
(5) Any other chemical element or compound which causes death or bodily harm.

 
 
 
 
 
 
 
 
 
 
“Facsimile nuclear agent.” A device, material or substance which:  
 
 
“Facsimile weapon of mass destruction.” A facsimile biological agent, facsimile bomb, 
facsimile chemical agent or facsimile nuclear agent.

(1) resembles in appearance and external qualities a radioactive material; but 
(2) is not radioactive.

24      Chapter 5     

Table of Cases

Table of Cases

*References are to Chapter and Page Number.

A. Scott Enters., Inc. v. City of Allentown, 

A

Appeal of B.T.C.,

142 A.3d 779 (Pa. 2016) ....... 3:10

Apprendi v. New Jersey, 

 868 A.2d 1203 (Pa. Super. 1997)  ...................... 4:7; 4:8; 4:15

530 U.S. 466 (2000)  .................................................. 2:47

B

Barrett v. Barrett

Bearden v. Georgia,

, 368 A.2d 616 (Pa. 1977)  .................................................... 2:59

Blakely v. Washington,

 461 U.S. 660 (1983)  ....................... 1:16; 2:60; 3:41; 3:42

Boyd v. Department of Corrections

 542 U.S. 296 (2004)  ................................................... 3:27

Brethren Mut. Ins. Co. v. McKernan,

, 831 A.2d 779 (Pa. Cmwlth. 2003)  .... 2:10

Bruzzi v. Bruzzi,

 961 A.2d 205 (Pa. Super. 2008) ....2:64

Buck v. Beard

 481 A.2d 648 (Pa. Super. 1984)  .......................................... 2:59

, 879 A.2d 157 (Pa. 2005)  .................................................2:47; 2:61

C

Commonwealth v. A.M. Byers Co.

Commonwealth v. Ali

, 31 A.2d 530 (Pa. 1943)  ....................... 3:10

Commonwealth Antidormi

, 112 A.3d 1210 (Pa. Super. 2015) ............................. 3:38

Commonwealth v. Atanasio

, 84 A.3d 736 (Pa. Super. 2014)  ..................... 2:68

, 997 A.2d 1181 
(Pa. Super. 2010)........................... ...........2:10; 2:13; 2:36; 2:37; 2:42; 2:43; 2:44
R1      Reference   

Table of Cases

Commonwealth v. B.D.G.

(Pa. Super. 2008)....................... ......................................2:14; 4:5; 4:6; 4:7; 4:9; 4:15
Commonwealth v. Baker

, 959 A.2d 362 

Commonwealth v. Balisteri,

, 722 A.2d 718 (Pa. Super. 1998)  ....................... 2:59

(Pa. Super. 1984) ................................. ...................................................2:11; 2:25; 2:59
Commonwealth v. Ballard,

 478 A.2d 5 

Commonwealth v. Barger,

 814 A.2d 1242 (Pa. Super. 2003)  ................. 3:42

Commonwealth v. Barnes

 956 A.2d 458 (Pa. Super. 2008) ............. 2:4; 2:21

Commonwealth v. Biauce

, 151 A.3d 121 (Pa. 2016)  ................................... 2:66

Commonwealth v. Blair

, 162 A.3d 1133 (Pa. Super. 2017)  ........2:19; 2:26

Commonwealth v. Boone

, 230 A.3d 1274 (Pa. Super. 2020)  .............. 1:9; 2:19

Commonwealth v. Boyd

, 862 A.2d 639 (Pa. Super.2004)  ........................ 2:36

Commonwealth v. Boyles

, 835 A.2d 812 (Pa. Super. 2003)  .......................... 2:31

Commonwealth v. Brown

, 595 A.2d 1180 (Pa. Super. 1991)  .........3:29; 3:30

(Pa. 2009) ............................... .....1:3; 2:11; 2:18; 2:23; 2:24; 2:30; 3:6; 3:7; 3:23
Commonwealth v. Burwell, 

, 981 A.2d 893 

58 A.3d 790 

(Pa. Super. 2012) ........................ ............................................................1:11; 2:26; 2:48
Commonwealth v. C.L.,

Commonwealth v. Chase, 

 962 A.2d 489 (Pa. Super. 2008)  ............................. 2:10

Commonwealth v. Celane,

877 N.E.2d 945 (Mass. App. Ct. 2007)  ........... 2:46

Commonwealth v. Charlett,

 457 A.2d 509 (Pa. Super. 1982)  ...................... 3:30

Commonwealth v. Colon, 

 391 A.2d 1296 (Pa. 1978)  ............................. 2:59

R2      Reference   

708 A.2d 1279 (Pa. Super. 1998)  ..........1:19; 2:13
Reference  R2

Table of Cases

Commonwealth v. Cook,

Commonwealth v. Crosley, 

 941 A.2d 7 (Pa. Super. 2007)  ............................... 3:39

Commonwealth v. Darling

180 A.3d 761 (Pa. Super. 2018)  ............ 1:6; 2:43

, 58 Pa. D. & C.4th 378 
(Carbon County 2002) ..................................... ........................................................... 2:37
Commonwealth v. Deshong,

(Pa. Super. 2004) ........................... ................................. 1:10; 1:20; 2:12; 2:13; 2:34
Commonwealth v. Dietrich, 

 850 A.2d 712 

970 A.2d 1131 
(Pa. 2009)........................... ....................................... 1:9; 2:19; 2:34; 2:44; 2:50; 3:39
Commonwealth v. Diez, 

Commonwealth v. Dinoia

191 A.3d 85 (Pa. Super. 2018) ............................... 2:59

Commonwealth v. Dohner, 

, 801 A.2d 1254 (Pa. Super. 2002)  ................... 1:11

Commonwealth v. Eggers, 

725 A.2d 822 (Pa. Super. 1999)  .................... 2:50

Commonwealth v. Erb, 

742 A.2d 174 (Pa. Super. 1999)  ..................... 3:42

Commonwealth v. Ford, 

428 A.2d 574 (Pa. Super. 1981)  ............................. 3:25

Commonwealth v. Foster, 

217 A.3d 824 (Pa. 2019)  ........................................ 3:26

Commonwealth v. Fuqua, 

214 A.3d 1240 (Pa. 2019) ................................... 3:41

Commonwealth v. Galloway,

407 A.2d 24 (Pa. Super. 1979)  ......................... 1:20

Commonwealth v. Gentry, 

 448 A.2d 568 (Pa. Super. 1982) ................. 3:29

(Pa. Super. 2014) .................................. .......................... 1:10; 2:13; 2:20; 2:65; 2:66
Commonwealth v. Gerulis, 

101 A.3d 813 

Commonwealth v. Golson, 

616 A.2d 686 (Pa. Super. 1992)  ............ 2:9; 2:51

189 A.3d 994 (Pa. Super. 2018)  ...................... 2:66

R3      Reference   

Commonwealth v. Griffiths,

Table of Cases

 15 A.3d 73 

(Pa. Super. 2010) ........................... .................................... 1:12; 2:55; 2:63; 3:9; 3:21
Commonwealth v. Guerra, 

Commonwealth v. Hall, 

955 A.2d 416 (Pa. Super. 2008)  ..........2:14; 2:34

80 A.3d 1204 (Pa. 2013)
.............................2:5; 2:22; 3:5; 3:6; 3:8; 3:9; 3:10; 3:18; 3:19; 3:20; 3:23; 3:41
Commonwealth v. Harner, 

617 A.2d 702, 706 (Pa. 1992)  ..... 1:6; 1:8; 1:20; 
2:4; 2:9; 2:10; 2:11; 2:22; 2:63; 3:6; 3:7; 3:8; 3:9; 3:11; 3:12; 3:13; 3:20; 3:23
Commonwealth v. Harriott,

......................................... 1:12; 1:20; 2:4; 2:21; 2:48; 2:51; 3:15; 3:17; 3:18; 3:21
Commonwealth v. Hobson, 

 919 A.2d 234 (Pa. Super. 2007)

Commonwealth v. Holmes, 

452 A.2d 22 (Pa. Super. 1982)  .............. 1:9; 2:20

.................................................... 1:7; 1:12; 2:5; 2:7; 2:38; 2:62; 2:63; 3:3; 3:4; 3:21 
Commonwealth v. Hunt, 

155 A.3d 69 (Pa. Super. 2017) 

Commonwealth v. Karth,

220 A.3d 582 (Pa. Super. 2019)  .....2:8; 2:21; 2:29

(Pa. Super. 2010)............................. ................................ 1:12; 2:55; 2:63; 3:21; 3:23
Commonwealth v. Keenan,

 994 A.2d 606 

Commonwealth v. Kelly, 

 853 A.2d 381 (Pa. Super. 2004)  .................... 2:18

Commonwealth v. Kerr, 

836 A.931 (Pa. Super. 2003) ..........1:12; 3:13; 3:17

Commonwealth v. Kinnan, 

444 A.2d 758 (Pa. Super. 1982)  .................. 2:16; 4:5

(Pa. Super. 2013)................................. ................... 1:3; 1:20; 2:22; 3:13; 3:18; 3:19
Commonwealth v. Lane, 

71 A.3d 983 

Commonwealth v. Langston, 

424 A.2d 1325 (Pa. 1981)  ..................................... 3:39

904 A.2d 917 
(Pa. Super. 2006).................................. ....................................... 1:18; 2:11; 2:27; 2:43
Commonwealth v. Lebarre, 

R4      Reference   

961 A.2d 176 (Pa. Super. 2008)  ................... 2:26
Reference  R4

Table of Cases

Commonwealth v. Leber, 

Commonwealth v. LeClair, 

802 A.2d 648 (Pa. Super. 2002) ......................... 2:13

Commonwealth v. Ledoux, 

236 A.3d. 71 (Pa. Super. 2020) .............2:28; 2:29

Commonwealth v. Lekka, 

768 A.2d 1124 (Pa. Super.2001) .................... 2:20

Commonwealth v. Luper, 

210 A.3d 343 (Pa. Super. 2019)  ....................... 2:43

Commonwealth v. Madron, 

745 A.2d 1248 (Pa. Super. 2000)  ..................... 2:55

Commonwealth v. Maloney, 

488 A.2d 331 (Pa. Super. 1985)  ................... 3:31

Commonwealth v. Mariani, 

73 A.2d 707 (Pa. 1950)  ..................................... 1:4

(Pa. Super. 2005) ................................ ............................... 1:8; 1:10; 2:12; 2:39; 2:49
Commonwealth v. Marts, 

869 A.2d 484 

Commonwealth v. Masip, 

889 A.2d 608 (Pa. Super. 2005)  ....................... 3:39

Commonwealth v. Mauk, 

567 A.2d 331 (Pa. Super. 1989)  ....................... 2:38

(Pa. Super. 2018) ............................... ......................................... 1:16; 2:58; 2:59; 2:60
Commonwealth v. McKee, 

185 A.3d 406 

Commonwealth v. McCabe, 

38 A.3d 879 (Pa. Super. 2012)  ......................... 2:20

Commonwealth v. McMullen, 

230 A.3d 1199 (Pa. Super. 2020)  ................. 2:39

Commonwealth v. Melvin, 

961 A.2d 842, 849 (Pa. 2008)  ................... 2:59

Commonwealth v. Mourar, 

103 A.3d 1 (Pa. Super. 2014)  .............................. 3:8 

Commonwealth v. Moury, 

504 A.2d 197 (Pa. Super. 1986)  .................... 3:29

Commonwealth v. Muhammed, 

992 A.2d 62 (Pa. Super. 2010)  ..............1:19; 2:68

(Pa. Super. 2019) ....................................... .............................................2:21; 2:39; 2:51
R5      Reference   

219 A.3d 1207 

Table of Cases

Commonwealth v. Nuse

(Pa. Super. 2009)..................................... ................................................3:12; 3:17; 3:18
Commonwealth v.  Opperman

, 976 A.2d 1191 

, 780 A.2d 714 
(Pa. Super. 2001).................................. .....................................................................2:33; 2:36
Commonwealth v. Oree

(Pa. Super. 2006) ................................ ............................... 2:4; 2:14; 2:21; 2:52; 2:67
Commonwealth v. Ortiz

(Pa. Super. 2004)............................... 1:6; 2:13; 2:34; 2:35; 2:36; 2:43; 2:45; 2:49
Commonwealth v. Pappas

(Pa. Super. 2004).......................... .......................... 2:4; 2:37; 2:38; 2:50; 2:51; 3:12
Commonwealth v. Petrick

(Pa. 2019)............................ ............................................1:2; 2:39; 3:6; 3:9; 3:20; 3:23
Commonwealth v. Pleger

, 911 A.2d 169 

, 854 A.2d 1280 

, 845 A.2d 829 

, 217 A.3d 1217 

, 934 A.2d 715 

(Pa. Super. 2007).......................... .......................... 1:11; 1:17; 2:14; 2:36; 2:45; 3:7 
Commonwealth v. Poplawski

, 158 A.3d 671 
(Pa. Super. 2017)................................. ........................................ 2:45; 2:48; 2:50; 2:62
Commonwealth v. Popow

(Pa. Super. 2004)................................... ...................................... 1:20; 3:14; 3:15; 4:10
Commonwealth v. Pruitt

, 844 A.2d 13 

Commonwealth v. Ramos

, 764 A.2d 569 (Pa. Super. 2000)  ....................... 2:59

(Pa. Super. 2018)........................... ..................................1:2; 1:5; 1:9; 2:38; 2:44; 4:9
Commonwealth v. Redman

, 197 A.3d 766 

Commonwealth v. Rivera

, 864 A.2d 566 (Pa. Super. 2004)  .................. 2:50

Commonwealth v. Rotola

, 95 A.3d 913 (Pa. Super. 2014) ................. 2:65; 3:8

, 173 A.3d 831 (Pa. Super. 2017) ............2:44; 2:48

R6      Reference   

Reference  R6

Table of Cases

Commonwealth v. Runion

Commonwealth v. Rush

, 662 A.2d 617, 619 (Pa. 1995) ..2:18; 2:23; 3:23

Commonwealth v. Seminko

, 909 A.2d 805 (Pa. Super. 2006)  ...2:35; 2:36; 3:20

Commonwealth v. Shotwell

, 443 A.2d 1192 (Pa. Super. 1982)  ............... 3:20

, 717 A.2d 1039 
(Pa. Super. 1998)....................................... ..............................................2:13; 2:14; 2:39
Commonwealth v. Sims

Commonwealth v. Smetana

, 770 A.2d 346 (Pa. Super. 2001) ........................... 3:41

Commonwealth v. Smith

, 191 A.3d 867 (Pa. Super. 2018) .......1:13; 2:58

Commonwealth v. Smith

, 699 A.2d 1303 (Pa. Super. 1997)  ..................... 2:31

Commonwealth v. Smith

, 901 A.2d 1030 (Pa. Super. 2006)  ..................... 2:32

Commonwealth v. Smith

, 956 A.2d 1029 (Pa. Super. 2008)  ..........2:13; 2:24

Commonwealth v. Solomon

, 69 A.3d 259 (Pa. Super. 2013)  .......................... 3:24

Commonwealth v. Stetler

, 25 A.3d 380 (Pa. Super. 2011) ..................... 2:16

Commonwealth v. Stradley

, 95 A.3d 864 (Pa. Super. 2014) .......................... 3:29

Commonwealth v. Tanner

, 50 A.3d 769 (Pa. Super. 2012) ...........2:14; 2:33

Commonwealth v. Their

, 205 A.3d 388 (Pa. Super. 2019)  ............ 2:8; 2:29

Commonwealth v. Truong

, 663 A.2d 225 (Pa. Super. 1995)  ......................... 3:21

Commonwealth v. Veon

, 36 A.3d 592 (Pa. Super. 2012)  ....................... 2:66

(Pa. 2016)........................... ...................2:8; 2:10; 2:25; 2:28; 2:29; 3:6; 3:11; 3:23
Commonwealth v. Walker

, 150 A.3d 435 

, 666 A.2d 301 

(Pa. Super. 1995) ............................. ............................... 1:19; 1:20; 2:11; 2:13; 2:67
R7      Reference   

Table of Cases

Commonwealth v. Walton

Commonwealth v. Watley

, 397 A.2d 1179 (Pa. 1979) ....3:5; 3:6; 3:10; 3:19

Commonwealth v. Watson

, 81 A.3d 108 (Pa. Super. 2013)  ........................ 3:38

Commonwealth v. Weathers

, 835 A.2d 786 (Pa. Super. 2003)  .................... 3:38

Commonwealth v. Weir

, 95 A.3d 908 (Pa. Super. 2014)  .................. 2:20

Commonwealth v. Weir

, 201 A.3d 163 (Pa. Super. 2018)  .......................... 3:38

(Pa. Oct. 1, 2020)  .............................. ..................1:17; 1:19; 2:65; 2:66; 3:12; 3:20
Commonwealth v. Whatley

, --- A.3d ---, 2020 WL 5822534 

(Pa. Super. 2019)............................ ............................................ 1:6; 1:8; 2:8; 2:9; 2:22
Commonwealth v. Wolfe

, 221 A.3d 651 

Commonwealth v. Wood

, 140 A.3d 651 (Pa. 2016)  ...................................... 2:66

Commonwealth v. Wright

, 446 A.2d 946 (Pa. Super. 1982)  ........................ 3:30

(Pa. Super. 1998)  ............................... ........................................ 2:11; 2:48; 2:62; 3:13
Commonwealth v. Wydo-Streit

, 772 A.2d 157 

(Pa. Super. 2019).................................. ...............................................................3:10; 3:11
Commonwealth v. Yanoff

, 2019 WL 3719529 

Commonwealth v. Zeigler

, 690 A.2d 260, 266 (Pa. Super. 1997)  ....2:38; 2:51

Commonwealth v. Zrncic

, 112 A.3d 656 (Pa. Super. 2015) ...................... 3:39

Commonwealth ex rel. Parrish v. Cliff

, 131 A.3d 1008 (Pa. Super. 2016)  .................... 2:20

Commonwealth ex rel. Wright v. Cavell

, 304 A.2d 158 (Pa. 1973) ........... 1:13

, 220 A.2d 611 (Pa. 1966) ........ 3:24

R8      Reference   

Reference  R8

Table of Cases

D

F

G

H

Darwin Co. v. Transp. Auth.

Freeze v. Donegal Mut. Ins. Co.

Gagnon v. Scarpelli

, 2016 WL 1242283 (M.D. Pa. 2016) ........... 2:64

, 470 A2d 958 (Pa. 1983)  .......................... 2:26

George v. Beard

, 411 U.S. 778 (1973)  ......................................................... 3:41

, 824 A.2d 393 (Pa. Cmwlth. 2003)  ...................................... 2:59

Housing Auth. v. Pa. State Civil Srv. Comm’n

950 So.2d 1268 (Fla. Dist. Ct. App. 2007)  ............................ 2:46

, 730 A.2d 955 (Pa. 1999) .... 1:4

, 868 A.2d 601 (Pa. Super. 2005) .................................................... 2:59

I

H.L.C. v. State, 

Hyle v. Hyle

In re C.W.

In re Cullen

, 7 A.3d 891 (Pa. Cmwlth. 2010) .......................................................... 4:12

In re Dublinski,

, 849 A.2d 1207 (Pa. Super. 2004) ......................................2:59; 2:60

In re Fidler,

In re M.W.

 695 A.2d 827 (Pa. Super. 1997) .............................. 4:5; 4:6; 4:7

 442 B.R. 763 (Bankr. D. Nev. 2010) ...................................2:40; 2:41

In re J.E.D., Jr.

, 725 A.2d 729 (Pa. 1999) ........................................3:4; 3:7; 3:11; 3:12

In re J.G., 

 879 A.2d 288 (Pa. Super. 2005)  ................................................... 4:9

45 A.3d 1118 (Pa. Super. 2012) .................................................. 4:9; 4:15

R9      Reference   

Table of Cases

In re J.J., 

In re M.W.

In re R.S.,

In re Love,

848 A.2d 1014 (Pa. Super. 2004) .......................................................... 4:10

 646 A.2d 1233 (Pa. Super. 1994) ..................................................... 4:15

, 725 A.2d 729 (Pa. 1999) ................ 1:19; 3:4; 3:38; 4:4; 4:10; 4:15

In re Ryan,

 847 A.2d 685 (Pa. Super. 2004) ............................................................. 4:9

In re Steven J.,

 419 A.2d 1224, (Pa. Super. 1980) ...................................................... 4:6

 491 A.2d 125 (Pa. Super. 1985) ................................................... 4:4

Kelly v. Robinson

Lawson v. Bd. of Prob. & Parole

People v. Horne

, 479 U.S. 36 (1986) ..................................2:39; 2:40; 3:8; 3:23

, 524 A.2d 1053 (Pa. Cmwlth. 1987)  ..... 3:25

People v. Mercer

, 767 N.E.2d 132 (N.Y. 2002)  ................................................... 2:46

, 2020 WL 205302 (Cal. 2020) ............................................. 2:47

Richardson v. Pa. Dept. of Corr.

, 991 A.2d 394 (Pa. Cmwlth. 2010)  ..... 2:47

State v. Simmons,

United States v. Booker

 88 N.E.3d 651 (Ohio 2017)  ................................................ 2:46

, 543 U.S. 220 (2005) .......................................2:47; 3:27

R10      Reference   

Reference  R10

K

L

P

R

S

U

United States v. Colasuonno, 

United States v. Kay,

697 F.3d 164 (2d Cir. 2012)  ............... 2:41; 3:9

United States v. Leahy, 

 717 F.3d 659 (8th Cir. 2013)  ........................................ 2:46

United States v. Milkiewicz

438 F.3d 328, 338 (3d Cir. 2006)  .......................... 2:47

United States v. Steele, 

, 470 F.3d 390 (3d Cir. 2006)  .......................... 2:47
 

897 F.3d 606 (4th Cir. 2018)

................................... 2:46
 

R11      Reference   

Table of Authorities

Table of Authorities

*References are to Chapter and Page Number.

United States Statutes

11 U.S.C.A. § 362 ................................................................................................................ 3:9
11 U.S.C.A. § 523(a)(7) ............................................................................. 2:39; 2:40; 3:8
11 U.S.C.A. § 1328(a)(3) ................................................................................... 2:41; 2:42

18 U.S.C.A. § 3663 ...........................................................................................................2:45
18 U.S.C.A. § 3663A ........................................................................................................2:45
18 U.S.C.A. § 3664 ...........................................................................................................2:45
18 U.S.C.A. § 3664(e) ......................................................................................... 2:45; 2:46
18 U.S.C.A. § 3771 ...........................................................................................................2:45
Pennsylvania Statutes

1 Pa.C.S.A. § 1928(b)(1) ................................................................................................. 3:8
1 Pa.C.S.A. § 1932 ...................................................................................................2:7; 2:52
1 Pa.C.S.A. § 1933 .............................................................................................................. 2:7
1 Pa.C.S.A. § 1991 ................................................................................................ 2:23; 2:29

16 P.S. § 1403 ....................................................................................................................2:32

18 P.S. § 11.101   ............................................................................. 2:6; 2:10; 2:24; 2:25
18 P.S. § 11.103   .............................................1:6; 2:7; 2:10; 2:24; 2:28; 2:32; 3:10
18 P.S. § 11.1101 .....................................................................................................2:6; 3:23
18 Pa.C.S.A. § 1106 ................................................................................................... passim
18 Pa.C.S.A. § 1106(a) ............................................................................................. passim
18 Pa.C.S.A. § 1106(a)(1) .............................................................................................1:17
18 Pa.C.S.A. § 1106(a)(2) .............................................................................................1:17
18 Pa.C.S.A. § 1106(b) ..................................................................................................... 1:8
18 Pa.C.S.A. § 1106(c) .............................................................................................. passim
18 Pa.C.S.A. § 1106(c)(1) ..................................................................... 1:10; 2:13; 2:14
18 Pa.C.S.A.§ 1106(c)(1)(i) ..................... 1:7; 1:12; 2:14; 2:18; 2:27; 2:33; 3:19
18 Pa.C.S.A.§ 1106(c)(1)(ii) ................................................................ 2:15; 2:16; 2:17
18 Pa.C.S.A.§ 1106(c)(1)(ii)(B) .................................................................................2:27
R12      Reference   

Table of Authorities

18 Pa.C.S.A.§ 1106(c)(1)(ii)(C) ..................................................................... 2:30; 2:32
18 Pa.C.S.A. § 1106(c)(1)(ii)(D) ........................................................ 2:29; 2:32; 2:33
18 Pa.C.S.A. § 1106(c)(2) ....................................................................................... passim
18 Pa.C.S.A. § 1106(c)(2)(i) .....................................................1:11; 1:18; 2:36; 2:52
18 Pa.C.S.A. § 1106(c)(2)(ii) ........................................................................... 2:53; 2:55
18 Pa.C.S.A. § 1106(c)(2)(iii) ............................................................. 1:13; 2:53; 3:20
18 Pa.C.S.A. § 1106(c)(3) ............................1:8; 1:9; 2:12; 2:19; 2:34; 3:39; 3:40
18 Pa.C.S.A. § 1106(c)(4) ..........................................................2:12; 2:42; 2:49; 2:50
18 Pa.C.S.A. § 1106(c)(4)(i) ........................................................................................2:36
18 Pa.C.S.A. § 1106(e) ....................................................................................... 1:14; 2:54
18 Pa.C.S.A. § 1106(f) .................................................................2:55; 2:56; 3:20; 3:38
18 Pa.C.S.A. § 1106(g) ....................................................................................... 2:20; 2:64
18 Pa.C.S.A. § 1106(h) ............................................................................................. passim
18 Pa.C.S.A. § 1107 ............................................................................................. 2:10; 3:22
18 Pa.C.S.A. § 1107.1 ......................................................................................................3:22
18 Pa.C.S.A. § 1110 .........................................................................................................3:22
18 Pa.C.S.A. § 3925 .........................................................................................................3:17
18 Pa.C.S.A. § 4105(e) ...................................................................................................2:50
23 Pa.C.S.A. § 5501 .........................................................................................................4:12
23 Pa.C.S.A. § 5502 .........................................................................................................4:12
23 Pa.C.S.A. § 5503(a) ...................................................................................................4:12
23 Pa.C.S.A. § 5503(b) ...................................................................................................4:12
23 Pa.C.S.A. § 5505 .........................................................................................................4:12
23 Pa.C.S.A. § 5505(c) ....................................................................................................4:12
23 Pa.C.S.A. § 5508(a) ...................................................................................................4:12
23 Pa.C.S.A. § 5508(b) ...................................................................................................4:12
23 Pa.C.S.A. § 6352(a) ...................................................................................................4:13
23 Pa.C.S.A. § 6352(a)(5) ....................................................................................2:8; 4:12

28 P.S. §11.201(5) ............................................................................................................. 4:8

42 Pa.C.S.A. § 1515(a)(1) .............................................................................................2:56
42 Pa.C.S.A. § 1515(a)(6)(i) ........................................................................................2:56
42 Pa.C.S.A. § 5505 ......................................................................2:12; 2:19; 3:40; 4:12
42 Pa.C.S.A. § 6310 .........................................................................................................4:11
42 Pa.C.S.A. § 6352 .........................................................3:4; 3:6; 3:33; 4:4; 4:7; 4:14
42 Pa.C.S.A. § 6352(a) .............................................................................. 4:3; 4:10; 4:13
42 Pa.C.S.A. § 6352(a)(2) ............................................................................................... 4:9
Reference  R13
R13      Reference   

Table of Authorities

42 Pa.C.S.A. § 6352(a)(5) ................................................3:6; 4:3; 4:4; 4:8; 4:9; 4:10
42 Pa.C.S.A. § 6352(a)(6) ............................................................................................... 4:9
42 Pa.C.S.A. § 6352(c) ...................................................................................................... 4:8
42 Pa.C.S.A. § 6353 ................................................................................. 1:12; 3:21; 3:36
42 Pa.C.S.A. § 6602(c) ....................................................................................................3:35
42 Pa.C.S.A. § 9701 .........................................................................................................2:25
42 Pa.C.S.A. § 9721 ......................................................... 1:3; 2:3, 2:7; 2:9; 2:10; 3:22
42 Pa.C.S.A. § 9721(c) .........................................................................1:4; 2:4; 2:25; 3:3
42 Pa.C.S.A. § 9721(c.1) ........................................................................ 3:34; 3:35; 3:36
42 Pa.C.S.A. § 9726(c) ....................................................................................................3:26
42 Pa.C.S.A. § 9728 ................................................................................................... passim 
42 Pa.C.S.A. § 9728(a) ........................................................................... 1:14; 4:13; 4:14
42 Pa.C.S.A. § 9728(a)(1) .............................................................................................2:54
42 Pa.C.S.A. § 9728(b) ....................................................................................... 1:14; 2:54
42 Pa.C.S.A. § 9728(b)(1) ................................................................................. 2:54; 4:13
42 Pa.C.S.A. § 9728(b)(2) .............................................................................................2:54
42 Pa.C.S.A.§ 9728(b)(3) ..............................................................................................4:13
42 Pa.C.S.A.§ 9728(b)(5) .................................................................................. 2:47; 2:60
42 Pa.C.S.A. § 9728(b.1) ...............................................................................................4:13
42 Pa.C.S.A. § 9728(c) ............................................................................ 1:12; 2:55; 3:21
42 Pa.C.S.A. § 9728(e) ....................................................................................... 1:15; 2:54
42 Pa.C.S.A. § 9728(g.1)........................................................................ 1:15; 2:60; 4:13
42 Pa.C.S.A. § 9730 ..........................................................1:13; 1:15; 2:53; 2:56; 4:14
42 Pa.C.S.A. § 9730(a.1) ................................................................................................1:15
42 Pa.C.S.A. § 9730(b) ........................................................................... 1:13; 1:16; 2:57
42 Pa.C.S.A. § 9730(b)(1) .............................................................................................2:58
42 Pa.C.S.A. § 9730(b)(2) ..................................................................... 1:14; 1:15; 2:58
42 Pa.C.S.A. § 9730(b)(3) ................................................................................. 1:13; 1:15
42 Pa.C.S.A. § 9730.1 ......................................................................................................3:33
42 Pa.C.S.A. § 9730.1(d) ...............................................................................................2:58
42 Pa.C.S.A. § 9754 ................................................1:4; 1:8; 2:9; 2:22; 2:63; 3:3; 3:5 
42 Pa.C.S.A. § 9754(a) ...................................................................................................3:21
42 Pa.C.S.A. § 9754(b) .............................................................................. 2:9; 3:10; 3:21
42 Pa.C.S.A. § 9754(c)(8) ...............................................................1:7; 2:9; 2:39; 2:63
42 Pa.C.S.A. § 9763 ................................................................................................... passim
42 Pa.C.S.A. § 9763(a) ..................................................................................................... 1:7
42 Pa.C.S.A. § 9763(b) ........................................................................... 3:21; 3:40; 3:41
42 Pa.C.S.A. § 9763(b)(10) .................................................................................... passim
R14      Reference   

Table of Authorities

42 Pa.C.S.A. § 9763(b)(15) ..........................................................................................3:18
42 Pa.C.S.A. § 9771 .........................................................................................................3:40
42 Pa.C.S.A. § 9771(a) ....................................................................................... 3:39; 3:40
42 Pa.C.S.A. § 9771(b) ................................................................1:19; 3:40; 3:41; 3:42
42 Pa.C.S.A. § 9771(c) ........................................................................................ 3:40; 3:41
42 Pa.C.S.A. § 9771(d) ...................................................................................................3:40
42 Pa.C.S.A. § 9781(b) ....................................................................................... 2:68; 3:39

62 P.S. § 481(c) .................................................................................................................2:31
Pennsylvania Code

204 Pa.Code § 29.353 ....................................................................................................1:15
204 Pa.Code § 303.14 ...................................................................................................... 1:4
Pennsylvania Rules of Court

Pa.R.Crim.P. 456 ................................................................................................... 2:56; 2:58
Pa.R.Crim.P. 702 ................................................................................................... 2:37; 2:33
Pa.R.Crim.P. 702(A)(4) ..................................................................................................2:37
Pa.R.Crim.P. 704 ......................................................................................................1:9; 2:44
Pa.R.Crim.P. 704(A)(1) .........................................................................................1:9; 2:37
Pa.R.Crim.P. 705.1 ..................................................................................................... passim
Pa.R.Crim.P. 708 ...............................................................................................................3:39
Pa.R.Crim.P. 720 ....................................................................................... 1:19; 2:67; 3:39

Pa.R.A.P. 341 ......................................................................................................................2:19
Pa.R.A.P. 902  ............................................................................................. 1:19; 2:67; 3:39
Pa.R.A.P. 903 .............................................................................................. 1:19; 2:67; 3:39
Pa.R.A.P. 1701(a)  ............................................................................................................2:20
Pa.R.A.P. 2119(f) ...........................................................................1:18; 1:19; 2:67; 3:39

Pa.R.J.C.P. 312 ....................................................................................................................4:10
Pa.R.J.C.P. 515 ...........................................................................................................4:8; 4:14
Pa.R.J.C.P. 515(B) ............................................................................................................... 4:8
Pa.R.J.C.P. 610 ....................................................................................................................4:14

R15      Reference   

Reference  R15

Table of Authorities

Other Authorities

Arthur W. Campbell, LAW OF SENTENCING §2.1 .....................................3:6; 3:23
Model Penal Code; Sentencing §6.04A ...................................................................3:27
2019 West’s Pa.Prac. Appellate Practice §2119.22 ..........................................1:16

R16      Reference   

Subject Index

Subject Index

*References are to Chapter and Page Number.

RESTITUTION GENERALLY 

Direct Sentence:  ......................................................................................... 1:4; 1:12
Generally:  ............................................................................................. 1:2; 2:10; 3:7
Full Restitution:  ........................................................................................1:11; 2:15
Juvenile Act Principles:  ........................................................................... 4:2; 4:16
Mandatory Restitution:  .................................................................. 2:3; 2:8; 3:12
Probationary Sentence:  ...............................................................1:7; 1:12; 3:20
Statutory Basis:  ........................................................................... 1:3; 2:8; 3:4; 4:4

 
 
 
 
 
 
 
ABILITY TO PAY 

 
Defendant’s Ability to Pay:  ..........1:12; 2:13; 2:26; 3:20; 3:29; 3:35; 4:6
Defendant’s Ability to Pay in Probation Case:  ..... 1:12; 2:22; 3:20; 3:28
 
     Offender’s Earning Capacity:  ..............................................................2:16; 3:29
AMENDMENT OF RESTITUTION ORDER

 
AMOUNT

See - Modification 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
R17      Reference   

Amount Generally:  .............................................................2:13; 2:54; 3:31; 4:4
Discretion of Court:  ...........................................................2:53; 3:24; 3:39; 4:4
Burden of Establishing Entitlement:  ...................................2:42; 2:44; 3:26                                                               
Causal Connection:  ...................................................1:6; 1:19; 2:50; 3:11; 4:5
Considerations by Sentencing Court:  ............. 2:11; 2:38; 2:48; 3:31; 4:5
District Attorney Responsibilities:  ..............................1:9; 2:42; 2:49; 3:27 
Jury Verdict, Relevancy to Amount of Restitution:  ............................... 2:61 
Juvenile Court Factors:  ........................................................................................ 4:5
Method and Payment of Restitution:  ..................................2:52; 3:32; 4:13
Modification of Amount:  .............................................................1:8; 2:19; 3:39
Nexus Requirement:  ............................................................... 1:6; 1:8; 2:9; 2:21
Nexus Requirement in Probationary Case:  .........................1:8; 3:11; 3:12
Not an Award of Damages:  ........................................................... 2:10; 3:6; 4:5
Sentencing Order:  ............................................................ 2:10; 2:38; 3:27; 3:29 
Reference  R17

Subject Index

 
 
APPELLATE REVIEW 

Support in the Record:  ..................2:11; 2:13; 2:36; 2:44; 2:48; 3:20; 4:7
Support in the Record – Presentence Report:  .............................2:38; 2:51

 
 
 
 
 
BANKRUPTCY

Abuse of Discretion in Juvenile Court:  ....................................................... 4:15
Challenge to Discretionary Aspects of Order:  .................1:16; 2:67; 3:38
Excessiveness Challenge:  ................................................................................ 2:67
Legality Challenge:  ......................................................................1:18; 2:65; 3:38
Standard of Review Upon Appeal:  .......................................2:65; 3:38; 4:15

 
CAUSATION

Restitution Not Affected by Bankruptcy:  ........................................ 2:39; 3:8

 
CIVIL REMEDIES

Causation of Loss by Criminal Offense:  .....................1:19; 2:50; 3:11; 4:5

 
COLLECTION OF RESTITUTION 

Civil Remedies Available to Victim:  .................................................1:14; 2:63

 
 
 
 
 
 
 
COMPENSABLE LOSSES

Collection by County Probation Department:  ..... 1:14; 2:53; 3:33; 4:13
Collection by Private Collection Agency:  .................................................. 1:14
Contempt Proceedings:  .................................................................................... 2:58
Default in Payments:  ...................................................... 1:15; 2:56; 3:41; 4:14
Payment Plan:  ...................................................................................................... 1:12
Restitution Entered as a Judgment: ............................................................  2:54
Collection in Juvenile Cases:  .......................................................................... 4:13

“But For” Test:  ................................................................................................ 2:4; 2:9 
Emotional or Mental Health:  ......................................................................... 2:25 
Injury Defined or Mentioned:  .............................................................. 1:11; 2:9
Loss or Damage:  .................................................................................................. 2:11 
Lost Wages:  ........................................................................................................... 2:26
Medical Expenses  ....................................................................................2:16; 2:31
Nexus Requirement:  ........................................................................ 1:6; 2:9; 2:21
Nexus Requirement in Probationary Case:  .........................1:8; 3:11; 3:12
Personal Injury:  ...............................................................................1:5; 2:21; 2:52    

 
 
 
 
 
 
 
 
 
R18      Reference   

Subject Index

 
 
DEFAULT IN PAYMENT

Property Loss:  .................................................................................... 1:5; 2:4; 2:21
Speculative Losses Impermissible: ...................................... 2:44; 3-20; 3:26 

  
 
DISCHARGE IN PAYMENT OF RESTITUTION

Default in Payments:  ..............................................................................1:15; 2:56
Default in Juvenile Court Case: .....................................................................  4:14

 
DISTRICT ATTORNEY’S RESPONSIBILITIES

Discharge of Restitution Order:  ................................................................... 2:62

 
 
ENFORCEMENT OF ORDER
 

Burden of Proving Entitlement:  ....................... 1:9; 2:42; 2:49; 3:26; 3:27
Recommendation by District Attorney:  .............................2-13, 2-49, 2:51 
                                                                              

 
 
 
 
 
 
EVIDENCE SUPPORTING AWARD OF RESTITUTION

Attachment of Inmate Account:  ................................................................... 2:60
Collection When Default in Payments:  ...................................................... 2:55
Contempt Proceedings:  .................................................................................... 2:58
Enforcement in Juvenile Cases:  .................................................................... 4:13
Failure to Pay in Probation Case:  ................................................................. 3:41
Restitution Entered as a Judgment:  .................................................1:14; 2:52

 
 
GUILTY PLEA COLLOQUY

Factual Basis in the Record:  ........2:11; 2:13; 2:36; 2:44; 2:48; 3:20; 4:7
Presentence Report:  ...............................................................................2:38; 2:51

 
 
INJURY

Notice at Time of Plea of Mandatory Nature of Restitution:  ............ 2:35
Notice of Plea Premised Upon Specific Amount of Restitution:  ..... 2:35

 
 
  
 
 

Injury Defined or Mentioned:  .............................................................. 1:11; 2:9
Loss or Damage:  .................................................................................................. 2:11 
Personal Injury:  ...............................................................................1:5; 2:21; 2:52    
Lost Wages:  ........................................................................................................... 2:26
Property:  .......................................................................................................... 1:5; 2:4 

R19      Reference   

Reference  R19

Subject Index

JUVENILE COURT PROCEEDINGS 

 
 
MANDATORY RESTITUTION

Best Practices and Considerations:  ............................................................ 4:15
Dispositional Court Responsibilities:  ........................................................... 4:7

 
 
MODIFICATION

Direct Sentence:  .............................................................. 1:4; 2:3; 2:8; 2:25; 3:9                
Probationary Sentence – Discretion:  .....................................1:8; 3:19; 3:20

 

 
 
 
 
PARENTS’ LIABILITY FOR JUVENILE’S DELINQUENT ACTS

Due Process Requirements:  ........................................................................... 2:19
Defendant’s Right to Seek Modification:  .................................................. 2:20
Modification of Restitution Order:  .................. 1:8; 2:14; 2:19; 2:22; 2:39
Modification of Restitution in Probationary Order:  ............................ 3:39

 
PAYMENT

Liability for Juvenile’s Delinquent Acts that are Tortious:  ................ 4:12

 
 
PRIVATE REMEDIES

Method and Payment of Restitution:  ..................................1:15; 2:52; 3:32 
Parties To Whom Juvenile May Pay Restitution:  ...................................... 4:8

 
 
 
PRIOR NOTIFICATION TO DEFENDANT

Preservation of Private Remedies:  .............................................................. 2:64
Civil Remedies:  .........................................................................................1:14; 2:63
Collection by Private Collection Agency:  .................................................. 1:14

 
PRIORITIES OF PAYMENTS 

Notice of Intention to Seek Restitution: .........................................2:35; 3:23

 
PROBATION

Priorities of Payments When Multiple Victims:  .............2:15; 2:17; 3:32

Defendant’s Ability to Pay:  .......................................... 1:12; 2:22; 3:20; 3:28
Definitions – Reparations:  ................................................................................. 3:5
Rehabilitation:  ........................................................................................................ 3:6
Restitution as a Sentence:  .................................................................................. 3:7
Expiration of Payment Obligation:  .............................................................. 3:20

 
 
 
 
 
R20      Reference   

Subject Index

 
 
 
 
PROCEEDINGS AT SENTENCING

Juvenile Court Probationary Order:  .............................................................. 4:9
Restitution Order as Condition of Probation:  ............................... 1:7; 3:21
Revocation Proceedings – Failure to Pay:  ................................................ 3:40
Standards for Restitution Order in Probationary Case:  ..........1:11; 3:27

 
Burden of Entitlement:   ....................................... 1:9; 2:42; 2:49; 3:26; 3:27
          Deferring Amount or Method of Payment:  ..............2:39; 2:55; 3:24; 4:9
Recommendation by District Attorney:  .............................2-13, 2-49, 2:51 
 
 
Effect of Sentencing Agreement or Stipulation:  .........................2:35; 2:37
Hearing, Necessity:  .................................................................................2:36; 3:24
 
RESTITUTION IN PENNSYLVANIA TASK FORCE

 
RETROACTIVE EFFECT OF AMENDMENTS

Task Force Recommendations:  ..................................................................... 1:21

 
REVOCATION PROCEEDINGS

No Retroactive Effect of Amendments to Restitution Statutes:  ......... 2:8

 
RIGHT TO COUNSEL AT RESTITUTION HEARING

Probationary Case: ............................................................................................. 3:40

 
SENTENCING COURT

Right to Counsel:  ......................................................................................2:13; 3:24

 
 
 
 
 
 
 
 
 
 
 
 

Adversarial Hearing:  ......................................................................................... 2:13
Factual Basis in the Record:  ........2:11; 2:13; 2:36; 2:44; 2:48; 3:20; 4:7
Initial Determination of Restitution Amount:  .............................2:11; 3:24 
No Delegation to Probation Department:  .....................................2:13; 3:25
Limitations on Sentencing Court:  ................................................................ 2:20
No Delegation to Probation Department:  ................................................ 2:13
Prior Notice to Defendant:  ...................................................................2:35; 3:23 
Hearing in Criminal Court:  .............................. 1:10; 2:13; 2:36; 2:37; 3:22 
Hearing in Juvenile Court: ...................................................................... 4:7; 4:11
Restitution is Part of a Sentence:  ................................................................. 2:10
Right to Counsel:  .............................................................................1:6; 2:13; 3:24
Sentencing Court’s Responsibilities:  ...................................2:11; 3:27; 3:31

R21      Reference   

Reference  R21

Subject Index

STANDARD OF REVIEW 

 
 
 
 
 
 
STATUTE

Abuse of Discretion in Juvenile Court:  ....................................................... 4:15
Burden of Proof – Inconclusive:  ................................................................... 2:45
Challenge to Discretionary Aspects of Order:  .................1:16; 2:67; 3:38
Excessiveness Challenge:  ................................................................................ 2:67
Legality Challenge:  ......................................................................1:16; 2:65; 3:38
Standard of Review Upon Appeal:  .......................................2:65; 3:38; 4:15

  
 
 
 
 
VICTIM

No Retroactive Effect of Amendments to Restitution Statutes:  ......... 2:8
Mandatory Restitution in Direct Sentence:  ......... 1:4; 2:3; 2:8; 2:25; 3:9                
Discretionary Restitution in Probation Sentence:  ............1:8; 3:19; 3:20
Discretionary in Juvenile Court Case:  ........................................................... 4:4
Statutory Basis for Restitution:  ............................................ 1:3; 2:8; 3:4; 4:4

 
 
 
 
VICTIM’S COMPENSATION ASSISTANCE PROGRAM

Victim Generally:  ..............................................2:3; 2:17; 2:22; 3:3; 3:32; 4:8
Entities Entitled to Restitution:  ................................................2:14; 3:10; 4:8
Family or Estate of Victim:  ..................................................................2:26; 2:27
Priorities of Payments When Multiple Victims:  .............2:15; 2:17; 3:32

 

Payments by Victim’s Compensation Assistance Program:  ............. 2:64

R22      Reference