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ERNEST EVANS (03/31/77)

decided: March 31, 1977.

IN THE INTEREST OF ERNEST EVANS, JR. (INFANT), APPELLANT


Appeal from Disposition of Delinquent Child by the Court of Common Pleas of Berks County, Pennsylvania, Juvenile Division, to No. 340-S-1976. No. 1791 October Term, 1976.

COUNSEL

William F. Ochs, Jr., Public Defender, Reading, for appellant.

Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a concurring and dissenting opinion.

Author: Jacobs

[ 246 Pa. Super. Page 431]

This appeal was taken from an order of the trial court directing appellant, who had been adjudicated delinquent,*fn1 to be placed on temporary probation to reside with his parents, to pay to the use of Berks County $100.00 and court costs, and to make restitution in an

[ 246 Pa. Super. Page 432]

    amount determined by consultation between his counsel and the probation office. Appellant challenges this order on the basis that the Juvenile Court has no authority to order a delinquent child to pay a fine, court costs, and to make restitution. The Commonwealth contends, and the court below, WESNER, J., agreed, that the juvenile division can properly promulgate such an order in effectuating rehabilitation of a minor under the Juvenile Act.*fn2

Initially, we have no difficulty in disposing of that part of the lower court's order directing appellant to pay $100.00 to the use of Berks County. In In Re: John Joseph Gardini, 243 Pa. Super. 338, 365 A.2d 1252 (1976), we held that an order of the Juvenile Division of the Court of Common Pleas of Blair County directing a delinquent child to pay a $200.00 fine to the Commonwealth was beyond the scope of the court's discretion in formulating an order of disposition, and contrary to the protective procedures of the Juvenile Act. By the authority of Gardini, we therefore reverse the order of disposition below insofar as it directs appellant to pay a fine.*fn3

We now turn to that part of the lower court's order directing appellant to make restitution in an amount determined by consultation between appellant's counsel and the probation office. This court faced the question of the propriety of a juvenile court order placing a delinquent child on probation and ordering restitution in Trignani's Case, 148 Pa. Super. 142, 24 A.2d 743 (1942). In Trignani, the juvenile appellant was adjudged delinquent for striking a pedestrian with an automobile

[ 246 Pa. Super. Page 433]

    and fleeing the scene of the accident, and ordered to pay $1,040.00 restitution. This court held the order improper, finding that while a juvenile may be placed on probation with reasonable terms, "the terms imposed must be wholly in the interest of the child, looking toward his reformation and not to make good the damages flowing from his illegal act." 148 Pa. Super. at 145, 24 A.2d at 744. Restitution was therefore improper because the order invited further delinquency and in effect bound the appellant to servitude.

While it is unclear whether the terms of the restitution order in the present case were directed to the best interest of Ernest Evans, Jr.,*fn4 the order directing restitution by appellant must be ...


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