In Re: Order Amending Rules 528 and 533 of the Pennsylvania Rules of Criminal Procedure

RULE 528. MONETARY CONDITION OF RELEASE ON BAIL.
(A) If the bail authority determines that it is necessary to impose a monetary condition
of bail, to determine the amount of the monetary condition, the bail authority shall
consider:
(1) the release criteria set forth in Rule 523; and
(2) the financial ability of the defendant.
(B) The amount of the monetary condition shall be reasonable.
(C) After determining the amount of the monetary condition, the bail authority may
permit the deposit of a sum of money not to exceed 10% of the full amount of the
monetary condition if he or she determines that such a deposit is sufficient to ensure the
defendant's appearance and compliance.
(D) One or a combination of the following forms of security shall be accepted to satisfy
the full amount of the monetary condition:
(1) Cash or when permitted by the local court a cash equivalent.
(2) Bearer bonds of the United States Government, of the Commonwealth of
Pennsylvania, or of any political subdivision of the Commonwealth, in the full
amount of the monetary condition, provided that the defendant or the surety files
with the bearer bond a sworn schedule which shall verify the value and
marketability of such bonds, and which shall be approved by the bail authority.
(3) Realty located anywhere within the Commonwealth, including realty of the
defendant, as long as the actual net value is at least equal to the full amount of
the monetary condition. The actual net value of the property may be established
by considering, for example, the cost, encumbrances, and assessed value, or
another valuation formula provided by statute, ordinance, or local rule of court.
Realty held in joint tenancy or tenancy by the entirety may be accepted provided
all joint tenants or tenants by the entirety execute the bond.
(4) Realty located anywhere outside of the Commonwealth but within the United
States, provided that the person(s) posting such realty shall comply with all
reasonable conditions designed to perfect the lien of the county in which the
prosecution is pending.
(5) The surety bond of a professional bondsman licensed under the Judicial
Code, 42 Pa.C.S. §§ 5741-5749, or of a surety company authorized to do
business in the Commonwealth of Pennsylvania.
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(E) The bail authority shall record on the bail bond the amount of the monetary
condition imposed and the form of security that is posted by the defendant or by an
individual acting on behalf of the defendant or acting as a surety for the defendant.
(F) Except as limited in Rule 531, the defendant or another person may deposit
the cash percentage of the bail. If the defendant posts the money, the defendant
shall sign the bond, thereby becoming his or her own surety, and is liable for the
full amount of bail if he or she fails to appear or to comply. When a person other
than the defendant deposits the cash percentage of the bail, the clerk of courts or
issuing authority shall explain and provide written notice to that person that:
1) if the person agrees to act as a surety and signs the bail bond with the
defendant, the person shall be liable for the full amount of bail if the
defendant fails to appear or comply; or
2) if the person does not wish to be liable for the full amount of bail, the
person shall be permitted to deposit the money for the defendant to post,
and will relinquish the right to make a subsequent claim for the return of
the money pursuant to these rules. In this case, the defendant would be
deemed the depositor, and only the defendant would sign the bond and be
liable for the full amount of bail.
3) Pursuant to Rule 535(E), if the bail was deposited by or on behalf of the
defendant and the defendant is the named depositor, the amount otherwise
returnable to the defendant may be used to pay and satisfy any
outstanding restitution, fees, fines, and costs owed by the defendant as a
result of a sentence imposed in the court case for which the deposit is
being made.
COMMENT: Nothing in this rule precludes the bail
authority from releasing the defendant on an unsecured
bail bond whereby the defendant, upon executing the bail
bond, binds himself or herself to be liable for an amount of
money in the event the defendant fails to appear or to
comply with the conditions of the bail bond. Although this
is a monetary condition, no actual security or money is
deposited as a condition of the release. See Rule
524(C)(3) for the definition of unsecured bail bond.
The bail authority may impose a monetary condition in
addition to nonmonetary conditions if a combination of
such conditions is necessary to reasonably ensure the
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defendant's appearance and compliance. For example, a
defendant could be released conditioned upon posting a
certain amount of money and subject to the supervision of
a designated probation department or bail agency, or a
designated person or private organization. The supervisor
would maintain close contact with the defendant, assist
the defendant in making arrangements to appear in court,
and, if appropriate, accompany the defendant to court. In
addition, the bail authority could require that the supervisor
also be a surety for the full amount of the monetary
condition so that the supervisor would be financially
responsible if the defendant failed to appear.
Paragraph (C) requires that in all cases, the bail authority
must consider whether a defendant should be permitted to
deposit a percentage of the cash bail.
Nothing in this rule changes the practice of permitting the
judicial districts to require by local rule the use of
percentage cash bail.
When the bail authority determines that it is appropriate to
accept a percentage of the cash bail, the defendant, or an
individual acting on behalf of the defendant or acting as a
surety for the defendant, may make the deposit with the
clerk of courts or the issuing authority. See Rule 535.
When the bail authority authorizes the deposit of a
percentage of the cash bail, the defendant may satisfy the
monetary condition by depositing, or having an individual
acting as a surety on behalf of the defendant deposit, the
full amount of the monetary condition. For example, there
may be cases in which the defendant does not have the
cash to satisfy the percentage cash bail, but has some
other form of security, such as realty. In such a case, the
defendant must be permitted to execute a bail bond for the
full amount of the monetary condition and deposit one of
the forms or a combination of the forms set forth in
paragraph (D).
If a percentage of the cash bail is accepted pursuant to
these rules, when the funds are returned at the conclusion
of the defendant's bail period, the court or bail agency may
retain as a fee an amount reasonably related to the cost of
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administering the cash bail program. See Schilb v.
Kuebel, 404 U.S. 357 (1971).
[Except as limited in Rule 531 (Qualifications of
Surety), the defendant or another person, such as a
relative or neighbor, may deposit the cash percentage
of the bail. If the defendant posts the money, the
defendant must sign the bond, thereby becoming his
or her own surety, and is liable for the full amount of
bail if he or she fails to appear or to comply. When
someone other than the defendant deposits the cash
percentage of the bail, the clerk of courts or issuing
authority must explain to that person that:
1) if the person agrees to act as a surety and
signs the bail bond with the defendant, the
person will be liable for the full amount of bail if
the defendant fails to appear or comply; or
2) if the person does not wish to be liable for
the full amount of bail, the person will be
permitted to deposit the money for the
defendant to post, and will relinquish the right
to make a subsequent claim for the return of the
money pursuant to these rules. In this case, the
defendant would be deemed the depositor, and
only the defendant would sign the bond and be
liable for the full amount of bail. See Rule 535.]
Paragraph (F), which formerly was included in the
Comment, was added to the rule in 2014 to clarify the
manner in which the defendant or a third party may
act as a surety for the defendant’s bond. The rule now
requires that written notice be given to the person
posting the bail, especially a third party, of the
possible consequences if the defendant receives a
sentence that includes restitution, a fine, fees, and
costs. See also Rule 535 for the procedures for
retaining bail money for satisfaction of outstanding
restitution, fines, fees, and costs.
The defendant must be permitted to substitute the form(s)
of security deposited as provided in Rule 532.
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The method of valuation when realty is offered to satisfy
the monetary condition pursuant to paragraphs (D)(3) and
(D)(4) is determined at the local level. If no satisfactory
basis exists for valuing particular tracts of offered realty,
especially tracts located in remote areas, acceptance of
that realty is not required by this rule.
NOTE: Former Rule 4007 adopted July 23, 1973, effective
60 days hence, replacing prior Rule 4013; amended January
28, 1983, effective July 1, 1983; rescinded September 13,
1995, effective January 1, 1996, and replaced by Rule 4011.
Present Rule 4007 adopted September 13, 1995, effective
January 1, 1996. The January 1, 1996 effective dates
extended to April 1, 1996; the April 1, 1996 effective dates
extended to July 1, 1996 ; renumbered Rule 528 and
amended March 1, 2000, effective April 1, 2001; amended
September 21, 2012, effective November 1, 2012[.] ;
amended December 8, 2014, effective February 9, 2015.
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COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the provisions of the new rule published
with Court's Order at 25 Pa.B. 4116 (September 30, 1995).
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court’s Order at 30 Pa.B.
1478 (March 18, 2000).
Final Report explaining the September 21, 2012 amendment
correcting a typographical error in paragraph (A)(1) published with
the Court’s Order at 42 Pa.B. 6247 (October 6, 2012).
Final Report explaining the December 8, 2014 amendment providing
for the advice required to be given concerning possible forfeiture of
the deposit published with the Court’s Order 44 Pa.B. ( ,
2014).
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RULE 535. RECEIPT FOR DEPOSIT; RETURN OR RETENTION OF DEPOSIT.
(A) Any deposit of cash in satisfaction of a monetary condition of bail shall be given to
the issuing authority, the clerk of courts, or another official designated by the president
judge by local rule pursuant to Rule 117(C). The issuing authority, clerk, or other official
who accepts the deposit shall give the depositor an itemized receipt, and shall note on
the bail bond the amount deposited and the name of the person who made the deposit.
The defendant shall sign the bail bond, and be given a copy of the signed bail bond.
(1) When the issuing authority accepts a deposit of bail, the issuing authority
shall note on the docket transcript the amount deposited and the name of the
person who made the deposit. The issuing authority shall have the deposit, the
docket transcript, and a copy of the bail bond delivered to the clerk of courts.
(2) When another official is designated by the president judge to accept a bail
deposit, that official shall deliver the deposit and the bail bond to either the
issuing authority, who shall proceed as provided in paragraph (A)(1), or the clerk
of courts, who shall proceed as provided in paragraph (A)(3).
(3) When the clerk of courts accepts the deposit, the clerk shall note in the list of
docket entries the amount deposited and the name of the person who made the
deposit, and shall place the bail bond in the criminal case file.
[(4) At the time bail is being deposited, no inquiry shall be made of the
depositor whether he or she consents to have the deposit retained to be
applied toward the defendant's fines, costs, or restitution, if any. ]
(B) When the deposit is the percentage cash bail authorized by Rule 528, the depositor
shall be notified that by signing the bail bond, the depositor becomes a surety for the
defendant and is liable for the full amount of the monetary condition in the event the
defendant fails to appear or comply as required by these rules and that, if the
defendant is the named depositor, the amount otherwise returnable may be used
to pay and satisfy any outstanding restitution, fees, fines, and costs owed by the
defendant as a result of a sentence imposed in the court case for which the
deposit is being made.
(C) The clerk of courts shall place all cash bail deposits in a bank or other depository
approved by the court and shall keep records of all deposits.
(D) Unless a motion is filed pursuant to paragraph (E), [W]within 20 days of the full
and final disposition of the case, the deposit shall be returned to the depositor, less any
bail-related fees or commissions authorized by law, and the reasonable costs, if any, of
administering the percentage cash bail program.
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(E) In any case in which the defendant is the named depositor, upon the full and
final disposition of the case, the court may order, upon motion of the attorney for
the Commonwealth, that any money deposited pursuant to this rule by or on
behalf of the defendant that is otherwise returnable to the defendant be held and
applied to the payment of any restitution, fees, fines, and costs imposed upon the
defendant in the case for which the deposit had been made, unless the defendant
shows that he or she would suffer an undue hardship.
[(E)] (F) When a case is transferred pursuant to Rule 130(B) or Rule 555, the full
deposit shall be promptly forwarded to the transfer judicial district, together with any
bail-related fees, commissions, or costs paid by the depositor.
COMMENT: When the president judge has designated
another official to accept the bail deposit as provided in Rule
117, the other official's authority under Rule 117 and this rule
is limited to accepting the deposit, having the defendant sign
the bail bond, releasing the defendant, and delivering the
bail deposit and bail bond to the issuing authority or the clerk
of courts.
[Paragraph (A) was amended in 2006 to make it clear
that the clerk of courts or other official accepting a
deposit of cash bail is not permitted to request that the
depositor agree to have the cash bail deposit retained
after the full and final disposition of the case to be
applied toward the payment of the defendant's fines,
costs, or restitution, if any. See, e.g., Commonwealth v.
McDonald, 476 Pa. 217, 382 A.2d 124 (Pa. 1978), which
held that a deposit of cash to satisfy a defendant's
monetary bail condition that is made by a person acting
as a surety for the defendant may not be retained to pay
for the defendant's court costs and/or fines.]
Paragraph (E) was added in 2014 to permit the attorney
for the Commonwealth to seek, at the full and final
disposition of any case in which the defendant is the
named depositor of bail money, to have the deposited
bail money applied to any restitution, fees, fines, and
costs imposed on the defendant in the case for which
the deposit had been made. This new provision,
adopted pursuant to the authority granted in 42 Pa.C.S.
§ 5702, is a procedural mechanism by which the court
may retain money previously deposited with the court to
satisfy the defendant’s obligations but only in the
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current criminal case. This procedure also secures the
right of the defendant to proffer reasons why retention
of the bail money would be an undue hardship. See
Commonwealth v. McDonald, 382 A.2d 124 (Pa. 1978).
The procedure stated in this rule is the only procedure
by which bail may be retained to pay for assessments
imposed on the defendant. Any local practice that
permits the retention of bail other than as provided in
this rule is inconsistent with the statewide rules and
subject to the provisions in Rule 105(B).
For the manner of distribution of any funds applied to
the outstanding restitution, fees, fines, and costs owed
by the defendant, see the Pennsylvania Supreme
Court’s Uniform Disbursement Schedule, In Re:
Promulgation of Financial Regulations Pursuant to Act
49 of 2009 (42 Pa.C.S. §§ 3733(A.1) and 3733.1), No. 335
Judicial Administration Docket (October 29, 2009), 204
Pa. Code § 29.353.
The procedures in paragraph (E) contemplate the
decision to retain the bail to be made at the court of
common pleas. There may be court cases in which bail
had been set that are resolved at the magisterial district
court, for example, in cases in which a plea agreement
is entered to withdraw misdemeanor or felony charges
in exchange for a plea to summary charges or
misdemeanor charges within the jurisdiction of the
magisterial district judge. In such cases, the
magisterial district judge may not order the retention of
bail money where the defendant is the named depositor
for the payment of assessments unless the
Commonwealth and the defendant agree.
Any order issued pursuant to paragraph (E) shall be in
conformance with Rule 114.
Given the complexities of posting real estate to satisfy a
monetary condition of release, posting of real estate may not
be feasible outside the normal business hours.
Paragraph (B) requires the issuing authority or the clerk of
courts who accepts a percentage cash bail deposit to explain
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to the person who deposits the money the consequences of
acting as a surety. There will be cases in which a person
merely deposits the money for the defendant to post, and is
not acting as the defendant's surety. In this situation, the
defendant is the depositor and should receive the receipt
pursuant to paragraph (A). See Rule 528. See also Rule
528 for the notice the clerk of courts or issuing authority
must provide when a person other than the defendant
deposits the cash percentage of the bail.
When cash bail that is deposited in a bank pursuant to
paragraph (C) is retained by a county in an interest-bearing
account, case law provides that the county retains the
earned interest. See Crum v. Burd, [131 Pa.Cmwlth. 550,]
571 A.2d 1 (Pa.Cmwlth. 1989), allocatur denied [525 Pa.
649,] 581 A.2d 574 (Pa. 1990).
The full and final disposition of a case includes all avenues
of direct appeal in the state courts. Therefore, the return of
any deposits would not be required until after either the
expiration of the appeal period or, if an appeal is taken, after
disposition of the appeal. See Rule 534.
Any fees, commissions, or costs assessed pursuant to
paragraph (D) must be reasonably related to the county's
actual bail administration costs. Each county should
establish local procedures to ensure adequate notice and
uniform application of such fees, commissions, or costs.
See, e.g., Buckland v. County of Montgomery, 812 F.2d 146
(3rd Cir. 1987).
When a case is transferred pursuant to Rules 130(B) and
555, paragraph [(E)] (F) and Rules 130(B) and 555 require
that any bail-related fees, commissions, or costs collected
pursuant to paragraph (D) be forwarded to the transfer
judicial district. Fees, commissions, or costs that have been
assessed but not paid at the time of transfer may not be
collected in the transferring judicial district.
When bail is terminated upon acceptance of the defendant
into an ARD program, such action constitutes a "full and final
disposition" for purposes of this rule and Rule 534 (Duration
of Obligation). See Rule 313.
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NOTE: Former Rule 4015, previously Rule 4009, adopted
November 22, 1965, effective June 1, 1966; renumbered
Rule 4015, former paragraph (b) integrated into paragraph
(a) and new paragraph (b) adopted July 23, 1973, effective
60 days hence; rescinded September 13, 1995, effective
January 1, 1996, and replaced by present Rule 4015.
Present Rule 4015 adopted September 13, 1995, effective
January 1, 1996. The January 1, 1996 effective dates
extended to April 1, 1996; the April 1, 1996 effective dates
extended to July 1, 1996; renumbered Rule 535 and
amended March 1, 2000, effective April 1, 2001; amended
April 20, 2000, effective July 1, 2000; amended March 3,
2004, effective July 1, 2004; amended June 30, 2005,
effective August 1, 2006; amended March 9, 2006, effective
August 1, 2006 [.] ; amended December 8, 2014, effective
February 9, 2015.
* * * * * *
COMMITTEE EXPLANATORY REPORTS:
Final Report explaining the provisions of the new rule published
with Court's Order at 25 Pa.B. 4116 (September 30, 1995).
Final Report explaining the March 1, 2000 reorganization and
renumbering of the rules published with the Court’s Order at 30 Pa.B.
1478 (March 18, 2000).
Final Report explaining new paragraph (E) concerning the interplay
with Rules 130(B) (former Rule 21(B)) and 555 (former Rule 300)
published with Court's Order at 30 Pa.B. 2219 (May 6, 2000).
Final Report explaining the March 3, 2004 changes to paragraph (A)
published with Court's Order at 34 Pa.B. 1561 (March 20, 2004).
Final Report explaining the June 30, 2005 changes to the rule
correlative to new Rule 117 published with the Court’s Order at 35
Pa.B. 3911 (July 16, 2005).
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Final Report explaining the March 9, 2006 changes to paragraph (A)
concerning deposits of bail published with the Court’s Order at 36
Pa.B. 1397 (March 25, 2006).
Final Report explaining the December 8, 2014 changes concerning
defendant’s deposits of bail to be applied to restitution, fees, fines,
and costs in the current case published with the Court’s Order 44
Pa.B. ( , 2014).
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