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KEVIN CASSIDY v. MONTGOMERY COUNTY (11/05/82)

filed: November 5, 1982.

KEVIN CASSIDY, IN HIS OWN BEHALF AND IN BEHALF OF OTHERS SIMILARLY SITUATED, APPELLANT,
v.
MONTGOMERY COUNTY, WILLIAM T. NICHOLAS, DISTRICT ATTORNEY OF MONTGOMERY COUNTY, JOHN J. NEWETT, CLERK OF COURTS OF MONTGOMERY COUNTY



No. 2526 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Civil Division, of Montgomery County, December Term, 1979, No. 79-7424.

COUNSEL

Martin J. Cunningham, Jr., Norristown, for appellant.

Logan M. Bullitt, IV, Norristown, for appellees.

Price, Wickersham and Lipez, JJ.

Author: Price

[ 306 Pa. Super. Page 224]

On April 5, 1977, appellant, Kevin Cassidy, was placed in the Accelerated Rehabilitative Disposition ("A.R.D.") program in Montgomery County. After a hearing, and pursuant to Pa.R.Crim.P. 175 et seq., the court ordered that further proceedings be deferred, conditioned upon a two year period of probation, payment of the costs of prosecution,

[ 306 Pa. Super. Page 225]

    and payment of $300.00 "in restitution to the County for the cost of superintending the conditions." (R. 16a). Appellant and his attorney agreed to these conditions at the hearing. On April 2, 1979, Mr. Cassidy petitioned the court to dismiss all criminal charges against him, contending that he had successfully performed all of the conditions of the A.R.D. order, and on April 4, 1979, the court ordered that the charges be dismissed.

Three weeks later, appellant filed this class action in equity, contending that the imposition and collection of the $300.00 amount by Montgomery County and the other appellees was in violation of Pa.R.Crim.P. 182(a), which prohibits the conditioning of an A.R.D. order upon payment of a fine. He seeks recovery for himself and all others who have paid such sums to Montgomery County as conditions of A.R.D., together with interest from the date of payment. He also seeks injunctive relief against the district attorney, as well as attorney's fees and costs.

Appellees filed preliminary objections in the nature of a motion to strike and a demurrer, contending, inter alia, that the $300.00 collected was not a fine in violation of Rule 182(a), but rather a payment to the use of the county, and as such a permissible condition of A.R.D. Appellees' preliminary objections were sustained by a court en banc, and the complaint dismissed for failure to state a cause of action.*fn1

Appellant maintains that a cost to the use of the county is not a permissible condition of A.R.D. under Rule 182(a), and also argues that in characterizing the $300.00 payment as a cost to the use of the county, rather than a fine, the court below improperly resolved a question of fact against him to

[ 306 Pa. Super. Page 226]

    grant a demurrer. We disagree with both ...


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