J-S80035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT J. KEARNS, 

Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3132 EDA 2017

Appeal from the PCRA Order August 31, 2017

in the Court of Common Pleas of Northampton County,

Criminal Division at No(s): CP-48-CR-0000829-2012

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2018

Robert J. Kearns (“Kearns”) appeals from the Order (hereinafter “PCRA 

Order”) denying his first Petition for relief filed pursuant to the Post 

Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We 

reverse the PCRA Order, vacate Kearns’s underlying judgment of sentence,

and remand for resentencing.

The PCRA court set forth the history underlying this appeal in its PCRA 

Order, which we incorporate herein by reference. See PCRA Order, 8/31/17, 

at 1-5.

On August 31, 2017, the PCRA court entered the PCRA Order, 

concomitantly with a Statement of Reasons thoroughly explaining its reasons 

for denying PCRA relief. Kearns timely filed a Notice of Appeal, followed by a 

court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of 
J-S80035-17

- 2 -

on appeal. The PCRA court thereafter issued a Rule 1925(a) Opinion, relying 

upon the reasoning it had advanced in its Statement of Reasons.

Kearns now presents the following issues for our review:

1. Whether the restitution component of [Kearns’s] sentence on 

December 11, 2015, ordering restitution in the amount of 

$832,460.00[,] payable to Bethlehem Township[,] is illegal 

because the Township of Bethlehem cannot be a victim under 

the subject criminal statutes, and therefore, [Kearns’s] 

sentence must be vacated?

2. Whether the [PCRA] court’s denial of [Kearns’s PCRA] 

Petition ... was unlawful and an abuse of discretion where the 

restitution Order in this case is illegal because the Township 

of Bethlehem cannot be a victim under the subject criminal 

statutes?

Brief for Appellant at 4 (capitalization omitted). We will address Kearns’s 

issues together, as they are related.

We begin by noting our standard of review: “In reviewing the denial 

of PCRA relief, we examine whether the PCRA court’s determination is 

supported by the record and free of legal error.” Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The scope of 

review is limited to the findings of the PCRA court and the evidence of 

record, viewed in the light most favorable to the prevailing party at the trial 

level.” Id. (citation omitted).

Relying upon the Pennsylvania Supreme Court’s decision in 

Commonwealth v. Veon, 150 A.3d 435, 450 (Pa. 2016),1 Kearns argues 

____________________________________________

1 Kearns direct appeal was pending when Veon was decided.
J-S80035-17

- 3 -

that “the restitution portion of his sentence[,] requiring payment of 

$832,460.00[,] is illegal and must be vacated because Bethlehem 

Township[2] cannot be considered a direct victim nor a reimbursable 

compensating government agency, under 18 Pa.C.S.A. § 1106[,3] for 

purposes of restitution.” Brief for Appellant at 15 (footnotes added); see 

also Veon, 150 A.3d at 454-55 (holding that a restitution order directing

payment to a Commonwealth agency,

4 as the “victim” of a crime under

Section 1106, constitutes an illegal sentence).5

The PCRA court, in its PCRA Order and Statement of Reasons, 

summarized (1) the Veon decision; (2) the arguments of both parties in the 

instant case as to whether Veon applies here and invalidates Kearns’s

restitution Order; and (3) the court’s reasons for determining that Veon is

____________________________________________

2 Bethlehem Township is incorporated as a Pennsylvania municipality under 

the First Class Township Code. See 53 Pa.C.S.A. § 55101, et seq.

3 Section 1106 provides, in relevant part, that a “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.” 18 

Pa.C.S.A. § 1106(c)(1)(i) (emphasis supplied). The definition of “victim,”

set forth in 18 Pa.C.S.A. § 1106(h), references the definition of “victim” 

contained in the Crime Victims Act (“the CVA”), see 18 Pa.C.S.A. § 11.103 

(discussed infra). 

4 The trial court ordered Veon to pay restitution to the Pennsylvania 

Department of Community and Economic Development (“DCED”) following

his conviction for unlawfully diverting public resources.

5 We note that legality of sentence claims are always subject to review if the 

PCRA petition is timely filed. See Commonwealth v. Fahy, 737 A.2d 214, 

223 (Pa. 1999).
J-S80035-17

- 4 -

inapplicable. See PCRA Order, 8/31/17, at 5-13.

6 We incorporate the PCRA 

court’s recitation herein by reference. See id. at 5-13.

In distinguishing Veon, the PCRA court emphasized that Veon

“involved an imprecise amount of restitution calculated to punish the nonpecuniary gains realized by the defendant as a result of his criminal conduct, 

[whereas] the restitution ordered in this case represents a specific amount 

of money taken from a specific victim.” PCRA Order, 8/31/17, at 11. 

Contrary to the PCRA court’s finding, however, these different facts do not 

affect the applicability of Veon’s holding to the instant case. The 

applicability of Veon to any given case does not turn on whether (1) the 

victim’s loss was “precisely ascertainable”; (2) the victim is “specific” and/or

direct; or (3) the defendant’s criminal conduct served his or her pecuniary 

versus non-pecuniary interest. Rather, the critical determination is whether 

the person/entity designated to receive the restitution ordered is a “victim” 

for purposes of Section 1106 and Section 11.103 of the CVA. See Veon, 

150 A.3d at 454. The Veon Court explained as follows:

____________________________________________

6 To the extent that the PCRA court, on page 11 of its PCRA Order, states 

that a political subdivision is defined as a “person” under the Statutory 

Construction Act, the court is referring to the following passage from Veon: 

“[T]he Statutory Construction Act ... defined ‘person’ to include ‘a 

corporation, partnership, limited liability company, business trust, other 

association, government entity (other than the Commonwealth), estate, 

trust, foundation or natural person.’ 1 Pa.C.S. § 1991.” Veon, 150 A.3d at 

450.
J-S80035-17

- 5 -

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,” i.e., 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. There can be no serious doubt 

that DCED, the agency designated to receive the restitution 

ordered in this case, does not qualify as a direct victim. And 

neither, of course, is DCED a parent, guardian, child, or family 

member of a homicide victim. Although Subsection 

1106(c)(1)(i)’s provisions regarding “victims” and “other 

government agenc[ies]” reveals that the General Assembly 

intended that restitution reach certain Commonwealth agencies 

in a manner that did not depend upon identifying such agencies 

as “victims,” it nonetheless required first that the agency in 

question have provided compensation to a victim so defined.

That is what necessitates our determination that DCED is not 

entitled to restitution in this case.

In short, to qualify for restitution under Subsection 

1106(c)(1)(i), a Commonwealth agency either must be a victim 

as that term is used in that subsection or must have reimbursed

a victim[,] as defined by Section 11.103, directly or by paying a 

third party on behalf of the victim. DCED, itself, cannot be a 

victim under Section 11.103.

Veon, 150 A.3d at 454 (emphasis added). 

In the instant case, pursuant to the reasoning of Veon, Bethlehem

Township, a municipality, is not a “victim” under Subsection 1106(c)(1)(i), 

nor an entity that has reimbursed a victim as defined by Section 11.103. 

See id. at 454-55; see also W. Indies Mission Appeal, 128 A.2d 773, 

778 (Pa. 1957) (observing that a “municipality is a governmental agency of 

the State, vested by the State with a part of its sovereignty, and employed 
J-S80035-17

- 6 -

in aiding the State in matters of government and the execution of its 

laws[.]”). Moreover, though Bethlehem Township, unlike the DCED in Veon, 

was the direct victim of Kearns’s criminal conduct, the Veon Court

emphasized that the definition of “direct victim” contained in 18 Pa.C.S.A. 

§ 11.103 is “an ‘individual’ who has suffered injury, death, or loss of 

earnings ....” Veon, 150 A.3d at 454 (emphasis added); see also id.

(stating that the definition of “direct victim” “unequivocally describes a 

human being, not a government agency ....”).

Accordingly, we are constrained to rule that Kearns’s sentence of 

restitution to Bethlehem Township is illegal, and must be vacated.7, 8 See

____________________________________________

7

In so holding, we recognize the PCRA court’s frustration that “to absolve 

[Kearns] of his criminal responsibility for the theft perpetrated on Bethlehem 

Township[,] simply because the victim, a recognized ‘person’ under the law, 

is not in human form,” PCRA Order, 8/31/17, at 12, seems unjust. 

Nevertheless, we are bound by Veon. Accord Veon, 150 A.3d at 454-55

(stating that although “those who unabashedly divert public monies to serve 

their own [] interests may not be subject to the same restitutionary 

obligations imposed upon those who victimize individuals[,] ... to rule

otherwise would require us to discard the language of the statute in pursuit

of its spirit. Should the General Assembly wish to rectify this apparent gap

in its restitution scheme, it may do so.”).

8 We additionally note that the Commonwealth is seeking to recoup the 

stolen funds from Kearns and his co-defendant via civil actions. See

Commonwealth v. Kearns, 150 A.3d 79, 86 (Pa. Super. 2016); but see 

also id. (wherein this Court explained that, at Kearns’s resentencing 

hearing, the prosecutor represented as follows concerning the ordered 

restitution: “Future restitution [] seemed doubtful, the prosecutor 

concluded, given the defendants’ bankruptcy filings and the defensive 

postures they assumed in various civil actions filed against them, where they 

have made no offers of settlement.”).
J-S80035-17

- 7 -

Veon, 150 A.3d at 455-56; see also Commonwealth v. Berry, 167 A.3d 

100, 110 (Pa. Super. 2017) (applying Veon and ruling that the defendant’s

sentence was illegal insofar as it ordered him to pay restitution to the

Commonwealth, where he, a former court of common pleas judge, had

unlawfully used his judicial staff and court resources to further his own

pecuniary interests). Moreover, because Kearns’s restitution was a critical

component of the trial court’s overall sentencing scheme, we vacate his

judgment of sentence and remand for resentencing. See Veon, 150 A.3d at

456; see also Berry, 167 A.3d at 110.

Based on the foregoing, we vacate Kearns’s judgment of sentence and 

remand for resentencing consistent with this Memorandum. 

PCRA Order reversed. Judgment of sentence vacated. Case remanded 

for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/18
Circulated 01/25/2018 10:41 AM

I • 

r1ug. JI, LV If I: l'trlVI IV U , I O O '.) r , J 

IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, 

PENNSYLVANIA 

CRIMINAL DIVISION 

COMMONWEALTH OF PENNSYLVANIA : 

l 

v. 

ROBERT :J. KEARf'iS, 

Defendant. 

c .. 004s .. cR .. os29-2012 

AND NOW, this 

ORDER OF COURT 

,:, JJ"' 

�/,,,. day of August 2017, Defendant Robert J. 

Kearns' "Post-Convtctlon Relief Act Petition Pursuant to Title 42 Pa.C.S. §9501 

. . • . ', 

' t-:7� ! I 

et seq." is DENIEDw 

STATEMENT OF REASONS 

;'",.!• 

, .. , .. ... 

I '1; �· /"'!, 

• ' o Io ... t. ,., 

. • ·:·.·! 

I•':, I• 

:: i 

., '1 

.·:· .. 

. ·:·:�... , 

I • •' 

. . . 

. . 

. .. 

, ., . 

t-: • ;.-:":I 

Procedural Background :".!�

:,.��··::'::' -- 

:-::""··,:} 

On February 6, 2012, Defendant Robert J. Keams was arrestietf alid 

charqed with Theft by Failure to Make Required Disposition of Funds Received 

at 18 Pa. C.S.A. § 3927(a), conspiracy to commit the same at 18 Pa. C.S.A. § 

903(c), and Misapplication of Entrusted Property and Property of Government 

or Financial Institutions at 18 Pa. C.S.A. § 4113(a). The charges arose out of 

allegations stemming from an agreement executed on or about July 2, 2007 

between Bethlehem Township (''Township") and Municipal Energy Managers, 

Inc. ("MEM") fn whlch Defendant and his co-defendant were sole shareholders. 

Pursuant to that agreement, MEM was to provide the Township with a 

municipal street lighting system. Attendant with the agreement, the Township 

. . ·n 

:: ,; : 

:.-··· ··:�

': ,,,:t 

;;· 

.,. 
/'\ u g. J r. L v I I r ; I 'tr IVI nu. IUU:J I, 't 

issued a check to MEM in the amount of Eight Hundred Thlrty-Two Thousand 

Four Hundred Sixty Dollars ($832,460.00) on July 3, 2007. The check was 

deposited into MEM's corporate account two days later. 

On October 1, 2007, the Defendants wrote personal checks to 

themselves from the MEM account, totaling Nine Hundred Seventy-Five 

Thousand Six Hundred Four Dollars ($975,604.00). Over the next two years, 

little work was done In furtherance of MEM's contractual responsibilities, and 

on February 23, 2010, the Solicitor for the Township filed a civil suit against 

MEM, which revealed the personal checks written to Defendant and his codefendant in October 2007. 

In January 2010, with performance on the contract still undelivered, the 

Honorable Kimberly McFadden entered an order submitting· the matter to a 

grand jury. An investigation ensued, and on January 26, 2012, the grand jury 

returned a presentment recommending that Defendant and his co-defendant 

be arrested and charged. 

The presentment was accepted on January 30, 20'12, and on February 

6, 2012, the Commonwealth filed a criminal complaint, and an arrest warrant 

was Issued and executed. Pretrlal motions were filed and disposed of, and on 

January 11, 2013, following a trial by a jury of hrs peers, the Defendant was 

found guilty of the charge of Theft by Failure to Make Required Disposition of 

Funds Received at 18 Pa. C.S.A. § 3927(a) and acquitted on the remaining 

charges. Following serial requests for continuation of his sentencing 

2 

;! . 

.i.. 
f\Ug.Jl,LVlf 1:l'HJVI no. I 00'.} r. '.} 

proceeding, the Defendant was sentenced on April 19, 2013, at which time he 

was ordered to serve a term of sixteen (16) to sixty (60) months' incarceration 

in a state correctional institution, followed by a period of sixty (60) months 

state probation, and he was ordered to pay restitution to Bethlehem Township 

in the amount of Eight Hundred Thlrty-Two Thousand Four Hundred Sixty 

Dollars ($832,460.00). 

The Defendant fled a timely post-sentence motion, the motion was 

granted, and on June 4, 2013, the undersigned resentenced the Defendant to 

a period of six (6) to twelve (12) months incarceration followed by sixty (GO) 

months' probation, a Two Thousand Five Hundred Dollar ($2500) fine, and 

restitution payable to Bethlehem Township in the amount of Eight Hundred 

Thirty-Two Thousand Four Hundred Sixty Dollars ($832,460.00). Defendant 

flied an appeal to the Superior Court on June 7, 2013, and a motion for 

reconsideration of sentence on June 13, 2013. On July 31, 2013, the motion 

for reconsideration was granted, and the undersigned amended 'the 

probationary portion of Defendant's sentence to a period of twelve (12) 

months. On August 1, 2013, Defendant filed an appeal from the July 31, 2013 

sentence. 

On review, the Superior Court held in. separate opinions from the 

respective appeals that the undersigned had properly vacated the original 

sentence and properly resentenced the Defendant on July 31, 2013, but rt 

vacated probationary portion of the sentence and remanded for resentencing. 

3 

:,; 

. .. 
MU ll· J I• L V I I I , I :H IVI no. I 00'.l r. 0 

That resentencing occurred on December 11, 2015, at which time the 

undersigned amended the sentence to six (6) to twelve (12) months' 

Incarceration, and payment of restitution as previously ordered. The 

Defendant filed a motion for reconsideration of sentence on December 21, 

2015, and the same was denied by an order entered on December 23, 2015. 

Thereafter, Defendant once again appealed to the Superior Court, which 

affirmed this Court's sentence on November 7, 2016. On November 28, 2016, 

the Defendant filed petition for allowance of appeal to the Supreme Court of 

Pennsylvania, which was denied on April 20, 2017. 

With the exception of periods from April 19, 2012 through May 8, 2013 

and June 12, 2013, the Defendant was on ball pending the disposition of his 

appeals. However, followlng the Supreme Court's April 20, 2017 denial of 

Defendant's petition for allowance of appeal,1 on or about May 1, 2017, the 

Commonwealth filed a motion to revoke Defendant's ball. The Defendant 

responded to the motion on May 11, 2017, with an answer and new matter, 

alleging the illegality of the restitution portion of his sentencing order. 

Concurrently, the Defendant filed a "Motion to Vacate Sentence and Vacate 

$832,460.00 Restitution Payable to Bethlehem Township" and a brief in 

support of the same. 

1 Two separate Supreme Court orders bearing the same appellate docket number and a 

date of Aprll 20, 2017 Order were filed in this Court on May 15, 2017 and May 19, 2017 

respectlvely. 

4 
. • l'I U g, J I, LU I f I ; I '.Jr IVI J�O. I 00'.l r. I 

The Court heard the motions on May 12, 2017, granting the 

Commonwealth's motion to revoke bail, and denying Defendant's motion to 

vacate sentence. Accordingly, the Defendant was remanded to Northampton 

County Prison to serve his sentence. 

On June 1, 2017, the Defendant filed the "Post-Conviction Relief Act 

Petition Pursuant to Title 42 Pa. C.S.A. § 9501 et seq," C'PCRA'') now before 

the Court. The sole issue raised fn the PCRA is the legality of the restitution 

portion of the Defendant's sentence pursuant to prevailing case law. A 

conference was held on June 23, 2017, and the matter was praeclped to the 

Argument Court list of August 29, 2017. Argument having been heard and 

briefs having been filed, the PCRA is now ready for disposition. 

Discussion 

By the Instant petition, the Defendant urges that the restitution portion 

of his sentence, pursuant to which he Is ordered to pay fn the amount of Eight 

Hundred Thirty-Two Thousand four Hundred Sixty Dollars ($832,460.00) to 

Bethlehem Township, is illegal because the Township is not a victim eligible to . 

receive restitution under the law. In furtherance of this assertion, Defendant 

relies on a series of statutes and the Pennsylvania Supreme Court's decision 

in Commw. v. Veon, 150 A.3d 435 (Pa. 2016). 

In Veon, the defendant, a member of the Pennsylvania House of 

Representatives representing Beaver County, was charged and convicted on 

one count of restricted activities under 65 Pa. C.?,A, § 1103(a);· two counts 

5 
l'\Ug,Jl,LVII 1:1:JflVI IYO. I oo, t'. 0 

of theft by unlawful taking at 18 Pa. C.S.A. § 3921(a); two counts of theft by 

deception at 18 Pa. C.S.A. § 3922(a)(1); two counts of theft by failure to make 

required disposition of funds received at 18 Pa. C.S.A. § 3927(a); two counts 

of misapplication of entrusted property and property of government or 

financial institutions at 18 Pa. C.S.A. § 4113(a), and one count of conspiracy 

incident to the theft by unlawful taking at 18 Pa. C.S.A. § 903 arising out of a 

scheme involving his legislative offices and a shell non-profit organlzatfon he 

ran. Commw. v. Veen, 150 A.3d 435, 440-1 (Pa. 2016). 

At the time of his sentencing, Mr. Veen was ordered In pertinent part to 

pay One Hundred Nineteen Thousand Dollars ($119,000.00) in restitution. At 

a subsequent proceeding, the amount of restitution as adjusted upward, and 

it was made payable to the Pennsylvanla Department of Community and 

Economic Development ("DCED"), which had provided the shell non-profit 

with the bulk of its funding. Veen appealed his sentence, which the Superior 

Court affirmed in part and remanded in part with respect to the amount of the 

restitution. 

Veen then filed a timely appeal to the Supreme Court of Pennsylvania, 

which granted review, in part to determine whether the DCED was legally 

entitled to receive the ordered restitution. In resolving that question, the Court 

began by closely examining§ 1106 of the Crimes Code, relating to restitution. 

In particular, the Court examined subsections (a), (c), and (h) of § 1106, 

providing as follows: 

6 
. twg. JI, LV 11 I: 1:.ir1v1 NO. IOO, r. �

{a) General Rule. - 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, 

... 

{c) Mandatory restltutlon.c- 

( 1) Toe 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

1

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 crtrnlnal conduct. 

(D) Any Insurance company which has provided 

reimbursement to the vlctfm as a result of the 

defendant's criminal conduct. 

7 
• � U g, J I, L V I I I ; IO r1v1 NO. IO o, r. I U 

(h) Definitlons.--As used In this section, the following words and 

phrases shall have the meanings given to them in this subsection: 

"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.

1 

The term includes the Crime Vlctlrn'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. 

18 Pa. C.S.A. § 1106(a), (c), (h). 

The Court then examined former§ 479.1, set forth ln the Crime Victims 

Act at 18 P.S. § 11.103, which defines "victim" as: 

(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 

offens.es) 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, tncludlng 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. 

The same ·section defines "direct victim'' as \\[aJn 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." Id. 

8 
MU !! , J I, L V I I I ; I U f IVI IVO. 100, r. 1 

Pursuant to these definitions, the Court took the position that restitution 

was only available to individual victims, which they interpreted as human 

beings, and government agencies and insurance companies that have 

provided reimbursement to a human victim for their losses. Accordingly, 

because the DCED did not fall into one of these categories, the Court 

determined that it was not entitled to restitution. In support of ·his PCRA, the 

Defendant In the instant case argues that the holding of Veon requires that 

the restitution portion of hrs sentence be vacated. 

By way of opposition, the Commonwealth arg.ues that Veon is a narrow 

ruling based on a set of facts that are readily distinguishable from the instant 

case, and therefore inapplicable. Initially, the Commonwealth first notes that 

In framing the question before it, the Court in Veon stated that they were 

charged with determining "whether the Commonwealth was eligible to receive 

restitution under the circumstances of [the] case." Commw. v. Veon, 150 A.3d 

435, 448 (Pa. 2016) (emphasis added). 

In an effort to draw a clear dlstlnctlon between Veon and the instant 

case, the Commonwealth notes that the restitution ordered in Veen was based 

on an estimated calculation of intangible pofltlcal gain inuring to Veon as a 

result of his criminal activity. By contrast, in the instant case, the amount of 

restitution was the exact amount of money lost by Bethlehem Township as a 

result of their contract with MEM. Essentially, the Commonwealth is arguing 

that Bethlehem Township's loss was the root of, and not incident to, 

the 

9 
f\U!l,,Jl,LVII 1;1ur1V1 IVO. loo, r. IL 

charge upon which Defendant was convicted, and they were the specific 

victim. Whereas in Veon, as the Commonwealth notes in their brief, "the 

restitution amount did not represent an ascertainable figure of monetary gain 

to the defendant . . [n]either was it an ascertainable loss to a specific 

''victim.''u Commonwealth's Memorandum of Law Contra Petitioner's Petition 

for Post Conviction Relief Pursuant to Pa. C.S. §9501 et seq. at 4. 

The Commonwealth further asserts that Veon is distinguishable because 

It involved restitution to a Commonwealth Agency; whereas, in the instant 

case, the victim in this case is a political subdivision. The Commonwealth 

suggests that this distinction is dispositive of the restitution issue because the 

former Is specifically excluded, and the latter is specifically included in the 

definition of "person" under the Statutory Construction Act, The Act defines 

a "person" as including "a corporation, partnership, limlted liabilrty company, 

business trust, other association, government entity (other than the 

Commonwealth), estate, trust, foundanon or natural person." 1 Pa. C.S.A. § 

1991. 

Alternatively, the ·Commonwealth urges. while Veon was decided under 

the mandatory restitution provisions of 18 Pa. C.S.A. §1106(c) which appear 

to turn on the definition of a "victim," the Court may order restitution under 

§1106(b) relating to restitution as a condition of probation or parole, which, 

like the general rule set forth at §1106(a), makes no reference to a "victim." 

See �ommw. v. Holmes, 155 A.3d 69, 78 (Pa. Super. 2017) (Stating that 

10 
• MU�- J I, L V I I I , I IJ r IVI IVO. Joo, r. lj 

"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 

. . 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 restrtution 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 .•. Thus, the requirement of a nexus 

between the damage and the offense is relaxed where restitution Is ordered 

as a condltion of probation.") 

Whfle the Court agrees with the Commonwealth that it could set aside 

the parties' arguments under Veon and order restitution under 18 Pa. C.S.A, 

§ 1106(b), upon consideration of the foregoing arguments, the relevant case 

law, and the relevant statutory provisions, the Court finds that Bethlehem 

Township is eligible to receive'1restitution under 18 Pa. C.S.A. § 1106(c). 

In contrast to Veen, which involved an Imprecise amount of restitution 

calculated to punish the non-pecuniary gains realized by the defendant as a 

result of hrs criminal conduct, the restitution ordered in this case represents a 

specific amount of money taken from a specific victim, As per the Statutory 

Construction Act, a political subdivision is a 'person,' with the legal rights and 

duties that attach. It ls pursuant to those rlghts and duties that Bethlehem 

Township entered into a contract with MEM, that it paid funds to MEM which 

11 
flUg.Jl,LVII 1;1onv1 NO. Joo, r. 14 

were subsequently criminally misappropriated by Defendant and his codefendant, and which resulted Bethlehem Township sustaining a defined loss 

in the amount of Eight Hundred Thirty-Two Thousand Four Hundred Sixty 

Dollars ($832,460.00). The Court believes that to absolve the Defendant of 

his criminal responsibility for the theft he perpetrated on Bethlehem Township 

simply because the victim, a recognized 'person' under the law, is not in 

human form, would be a gross misconstruction of the Iegislatfve intent of the 

statutory provisions impllcated rn this matter, and it would be a broad 

overreading of Veon, which involved an imprecise restitution amount to a third 

party not contemplated as entitled to restitution under 18 Pa. C.S.A. § 1106. 

Veon is certainly applicable to restitution cases generally insofar as it 

made clear that the current statutory scheme provides for mandatory 

restitution to victims, The Crime Victim's Compensation Board, and 

government agencies or insurance companies which have provided 

reimbursement to a· victim as the result of a defendant's 'criminal conduct. 

Moreover, it correctly applied the statutory scheme to the facts of that case In 

determining that the DCED was not entitled to restitution because it was 

neither a direct victim nor had it provided reimbursement to a direct victim. 

Veon clearly illustrates that the statutory scheme draws a clear line between 

providing restitution personal injury and property loss occasioned on victlms 

12 
l�O. 100, t'. 1, 

of crime and the third parties that compensate them directly for those losses, 

and losses which are incidental or tangential to criminal conduct.2 

However, this being a case where a direct victim has suffered a precisely 

ascertainable loss, the denial of restitution In this matter would require a 

strained reading of Veon, and would yield an absurd result. Commw. v. Allied 

Bldg. Credits, Inct., 123 A.2d 686, 692 (Pa. 1956) ("In construing a statute 

the courts must keep in mind that the Legislature is not presumed to have 

intended an absurd or unreasonable result . . good sense and practical util1ty 

must be considered .•. [and] statutes should receive a sensible construction 

and should be construed, if possible, so that absurdity and mischief may be 

avoided.") Consequently, Defendant's "Post-Conviction Relief Act Petition 

Pursuant to Title 42 Pa.C.S. §9501 et seq." is DENIED. 

S.J. 

2 In recognition of th ls distinction, the Court In�took special care to cite to the 1997 

decision of the Superior Court in Commw. v. Figu�roa, 691 A.2d 487 {Pa, Super. 1997), 

wherein the Court denied restitution to the Department of Corrections for medical care 

provided to an inmate who ultimately died at the hands of another inmate, and noted that: 

[t]o Implicate the myriad of govemmental agencies which provide services to people . . as 

being entitled to reimbursement would create chaos in an already difficult restitution system 

. • • Children and Youth Services, mental health agencies, every hospital and clinic in 

Pennsylvania, the Departments of Welfare, Education and Corrections, the Department of 

Health and others of the more than 230 departments under state control in Pennsylvania[,] 

[a]II of these agencies, in one form or another, receive state and/or federal aid and art, at one 

tlrna or another, may be impacted by additional costs to service a victim. 

Commw. v. Figueroa, 691 A.2d 487, 490 (Pa. Super. 1997). 

13