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submitted: January 12, 1988.


Appeal from the Judgment of Sentence of March 26, 1987 in the Court of Common Pleas of Clearfield County, Criminal Division, No. 87-9-CRA.


Joseph A. Curcillo, III, Assistant District Attorney, Harrisburg, for Com.

Christopher Shaw, Assistant Public Defender, Clearfield, for appellees.

Olszewski, Tamilia and Kelly, JJ. Tamilia, J., files a concurring statement.

Author: Kelly

[ 381 Pa. Super. Page 26]

The Commonwealth appeals from judgments of sentence imposed upon appellees, Gordon and Blanche Ferguson, following the acceptance of their guilty pleas to welfare fraud violations. The Commonwealth contends that the sentences imposed were illegal in that the trial court failed to impose a restitution order as mandated by 62 Pa.S.A. § 481(c). We agree that restitution is mandatory rather than discretionary in such cases; and therefore, vacate judgment of sentence and remand for resentencing.


Between May 1984 and October of 1986, appellees, Gordon and Blanche Ferguson, willfully and fraudulently misrepresented and failed to disclose family income to the Clearfield County Board of Assistance in violation of 62 Pa.S.A. § 481(a). During this period, appellees illegally obtained approximately $3,412.00 in public assistance funds and food coupons.

On October 24, 1986, complaints were filed against appellees charging them with two counts each of welfare fraud under 62 Pa.S.A. § 481(a). Appellees were arraigned on those charges on January 9, 1987; pleas of not guilty were entered. On January 16, 1987, both appellees entered open guilty pleas to the charges and specifically acknowledged in writing that the sentence, including restitution, fines, and costs would be left to the trial court.

[ 381 Pa. Super. Page 27]

On March 27, 1987, the trial court formally accepted the appellees' guilty pleas and proceeded to sentence appellees. Appellees were each sentenced to two years probation, aggregate fines of $600.00 each, and to pay the costs of prosecution. As a condition of probation each were to pay a minimum of $75.00 per month on the fines imposed. The trial court specifically declined to impose restitution orders as part of the sentence because the complaining claims agent of the Department of Public Welfare failed to appear at sentencing. Formal judgments of sentence were not entered, however, until April 13, 1987.

On April 24, 1987, the Commonwealth filed timely notices of appeal to this Court.*fn1 On April 27, 1987, the trial court directed the Commonwealth to file statements of matters complained of on appeal. On April 29, 1987, the Commonwealth filed timely motions to modify the judgments of sentence based upon the trial court's alleged error in failing to order restitution in compliance with 62 Pa.S.A. § 481(c). On May 27, 1987, the Commonwealth repeated that allegation in its statements of reasons for appeal.

On May 29, 1987, following a hearing, the trial court denied the Commonwealth's motions to modify the sentences. In accordance with Pa.R.A.P. 1925(a), the trial court filed a memorandum opinion on July 2, 1987, which explained its decision not to impose orders for restitution as follows:

On March 26, 1987, the above-captioned Defendant entered pleas of guilty to charges of Public Assistance Funds and Bonus Food Coupons, said offenses being defined in § 481(a) of the Public Welfare Code, Act 75 of 1982, both misdemeanors of the third degree, and was sentenced the same date to probation, a fine and Court costs. The Court specifically did not enter an Order for restitution. The Commonwealth now appeals claiming

[ 381 Pa. Super. Page 28]

    that the Defendant should have been required to make restitution.

In prosecutions of this nature this Court has consistantly [sic] and continually requested the prosecuting agent of the Department of Public Assistance to be present at sentencing just as it requires every prosecutor in every criminal case to be present when sentence is imposed. Just as consistantly [sic] the complainant has failed or refused to appear. This Court has gone so far as to require the District Attorney's Office to insist upon the complainants presence to no avail. As noted in the sentencing proceedings to 87-8-CRA, this Court inquired as to whether the complainant was present and was told he was not, although notice had been sent.

In cases of this nature, the Court has specific questions of the complainant before it will enter an Order for restitution, among them being whether the Defendant is still receiving an assistance grant, how much restitution is claimed and other circumstances concerning the grant that the Defendant had been receiving. Further, this Court had advised that without the complaining individual present at sentencing, an Order for restitution would not be made. It is this Court's opinion that in failing or refusing to appear, the complainant forfeited any claim for restitution.

(Trial Ct.Op. at 1-2).

On appeal, the Commonwealth renews its contention that 62 Pa.C.S.A. § 481(c) mandates restitution and that the sentences imposed which failed to order restitution were illegal. The appeals have been briefed and argued and are now before us for disposition.


Initially, we note that the Commonwealth's appeals are properly before this Court. The gist of the Commonwealth's sole contention in these appeals is that the trial court was without authority to impose sentences on appellees which did not require them to pay restitution of any

[ 381 Pa. Super. Page 29]

    moneys fraudulently obtained. (Commonwealth's Brief at 1-3). An allegation that the trial court was without constitutional or legislative authority to enter the sentence imposed constitutes a challenge to the legality of sentence. See generally Commonwealth v. Hartz, 367 Pa. Super. 267, 273-77, 532 A.2d 1139, 1143-44 (1987) (Cirillo, P.J., concurring) (exhaustively collecting cases involving challenges to the legality of sentence and observing that all of the cases involved allegations that the trial court was without constitutional or legislative authority to enter the sentence imposed); see e.g. Commonwealth v. Lee, 363 Pa. Super. 400, 526 A.2d 405 (1987) (Commonwealth contention that the trial court erred in failing to impose a mandatory minimum sentence on a recidivist drunk driver was a challenge to the legality of the sentence imposed). Challenges to the legality of sentence are appealable as of right, rather than by allowance of appeal. See Commonwealth v. Carr, 375 Pa. Super. 168, 171, 543 A.2d 1232, 1234 (1988); 42 Pa.C.S.A. §§ 9781(a), 9781(b).


The first question before this Court is one of statutory construction. Specifically, we must determine whether the restitution provision of 62 Pa.S.A. § 481(c) is discretionary or mandatory. If it is discretionary, then the sentence imposed could not be deemed illegal and the Commonwealth's appeals must fail. On the other hand, if it is mandatory, then we must determine whether the Commonwealth's right to restitution was forfeited by the non-appearance of the complaining claims agent at sentencing.

I. CONSTRUCTION OF 62 Pa.S.A. § 481(c)

In construing the enactments of the legislature, appellate courts must refer to the provisions of the Statutory Construction Act, 1 Pa.C.S.A. §§ 1901 et seq. The legislature has directed that, "[i]n the construction of the statutes of the Commonwealth, the rules set forth in this chapter shall be observed, unless the application of such rules would

[ 381 Pa. Super. Page 30]

    result in construction inconsistent with the manifest intent of the General Assembly." 1 Pa.C.S.A. § 1901. In 1 Pa.C.S.A. § 1921(a & b) the legislature further explained that:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.

(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

(Emphasis added).


Thus, we must first determine whether the issue may be resolved by reference to the express language of the statute. The statute at issue provides in pertinent part:

62 Pa.S.A. § 481

(c) Any person committing a crime enumerated in subsection (a) shall be ordered to pay restitution of any moneys he has 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 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 he was convicted, if the sentencing court determines such period to be reasonable and in the interests of justice.

(Emphasis added). The statute unequivocally provides that restitution "shall be ordered." The question, therefore, is whether "shall" means shall, or whether "shall" may mean "may."

[ 381 Pa. Super. Page 31]

It is a cardinal rule of statutory construction that, "words and phrases shall be construed according to rules of grammar, and according to their common and approved usage; . . . ." 1 Pa.C.S.A. § 1903. The term "shall" in common legal usage has been defined as follows:

Shall. As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term 'shall' is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears. People v. O'Rourke, 124 Cal.App. 752, 13 P.2d 989, 992. [1932].

But it may be construed as merely permissive or directory (as equivalent to 'may'), to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense. Wisdom v. Board of Sup'rs of Polk County, 236 Iowa 669, 19 N.W.2d 602, 607, 608 [1945].

Black's Law Dictionary, at 1233 (5th Ed.1979). It has been defined similarly with regard to its general rather than its legal usage. See e.g. Webster's Ninth New Collegiate Dictionary, at 1081 (1983) ("will have to: must; will be able to: can; used to express a command or exhortation; used in laws, regulations or directives to express what is mandatory"). The above definitions suggest that the principle and common usage of the term would require a mandatory

[ 381 Pa. Super. Page 32]

    rather than discretionary construction of "shall" as used in 62 Pa.S.A. § 481(c).

Despite the distinction in meaning between "shall" and "may"; however, appellate courts of this Commonwealth have declined to construe "shall" as mandatory and "may" as discretionary. Instead, the question of whether a statute will be deemed mandatory or discretionary has been decided with reference to the perceived intent of the legislature with respect to the use of the terms "shall" and "may" in the particular statute at issue. See Tyler v. King, 344 Pa. Super. 78, 84-86, 496 A.2d 16, 19-20 (1985) (collecting cases). Thus, the appellate courts of this Commonwealth have, in effect, declared that the term "shall" is sufficiently ambiguous to avoid application of the plain meaning rule of 1 Pa.C.S.A. § 1921(c), and the common and approved usage rule of 1 Pa.C.S.A. § 1903.

The willingness of the courts of this Commonwealth to find ambiguity in such cases is not necessarily a salutory trait. In his essay on statutory construction, Justice Felix Frankfurter, warned:

[w]hat courts do with legislation may in turn deeply affect what [a legislature] will do in the future. Emerson says somewhere that mankind is as lazy as it dares to be. Loose judicial reading makes for loose legislative writing. It encourages the practise illustrated in a recent cartoon in which a senator tells his colleagues 'I admit this new bill is too complicated to understand. We'll just have to pass it to find out what it means.'

But there are more fundamental objections to loose judicial reading. In a democracy the legislative impulse and its expression should come from those popularly chosen to legislate and equipped to devise policy, as courts are not. The pressure on legislatures to discharge their responsibility with care, understanding and imagination should be stiffened, not relaxed. Above all, they must not be encouraged in irresponsible or undisciplined use of language. In the keeping of legislature perhaps more

[ 381 Pa. Super. Page 33]

    than in that of any other group is the well-being of their fellow-men. Their responsibility is discharged ultimately by words. They are under a special duty therefore to observe that 'Exactness in the use of words is the basis of all serious thinking. You will get nowhere without it. Words are clumsy tools, and it is very easy to cut one's fingers with them, 3 and they need the closest attention in handling; but they are the only tools we have, and imagination itself cannot work without them. You must master the use of them, or you will wander forever guessing at the mercy of mere impulse and unrecognized assumptions and arbitrary associations, carried away with every wind of doctrine.

Frankfurter, Reflections on Reading Statutes, 47 Colum.L.Rev. 327, 376-77 (1947).

It would be a simple matter for the courts of this Commonwealth to inform the legislature that, with regard to the terms "shall" and "may," unless a contrary intent is expressly stated, we will presume that the legislature intended "shall" to be mandatory and "may" to be discretionary. Cf. JIRB Rule 23(e) ("'[s]hall' is mandatory and 'may' is permissive"). Requiring such discipline in expression from legislative draftsmen would not seem an unreasonable requirement or an unattainable goal. Nonetheless, as we have fostered imprecision regarding the use of the terms "shall" and "may" by our prior decisions, we cannot impose strict construction of the term here without risking violence to the legislative intent. Moreover, as several of the cases 4 which deem "shall" to be sufficiently ambiguous to require further inquiry into the legislative intent were decided in our Supreme Court, we do not consider the adoption of the above presumption to be within our province.

[ 381 Pa. Super. Page 34]

We note, however, that even under the current loose construction approach, the term "shall" is generally construed as creating a mandatory duty, and that it has only been in rare cases involving matters of time or form that the word "shall" has been construed as creating only a discretionary or directory duty. See Commonwealth v. Page 34} Filius, 346 Pa. Super. 434, 499 A.2d 1078 (1985); Wilkes-Barre Area Vocational School v. Greater Nanticoke Area School District, 115 Pa. Commw. 73, 539 A.2d 902 (1988); see also Zimmerman v. O'Bannon, 497 Pa. 551, 442 A.2d 674 (1982); James F. Oakley, Inc. v. School District of Philadelphia, 464 Pa. 330, 346 A.2d 765 (1975); Francis v. Corleto, 418 Pa. 417, 211 A.2d 503 (1965); Division 85, Amalgamated Transit Union v. Port Authority, 417 Pa. 299, 208 A.2d 271 (1965); 5 Commonwealth v. Pryor, 347 Pa. Super. 239, 500 A.2d 811 (1985); Commonwealth v. Kowell, 209 Pa. Super. 386, 228 A.2d 50 (1967); Board of Pensions & Retirement v. Hodge, 72 Pa. Commw. 59, 455 A.2d 1270 (1983); Matter of Columbia Borough, 24 Pa. Commw. 190, 354 A.2d 277 (1976).


We must look to the legislative intent. Section 1921(c) of the Statutory Construction Act provides:

When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by ...

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