Chief Justice CASTILLE.
The issue in these consolidated appeals involves the construction of 16 P.S. § 7708, applicable to Pennsylvania counties of the first class, which provides that "in cases where a defendant is convicted and sentenced to pay the costs of prosecution and trial, the expenses of the district attorney, in connection with such prosecution, shall be considered a part of the costs of the cases and be paid by the defendant."
Appellees are brothers who were licensed funeral home directors in Philadelphia. They operated several funeral homes and co-owned a crematorium with James McCafferty. In early 2004, appellees and McCafferty were approached by Michael Mastromarino, owner of Biomedical Tissue Services, a business that sold human tissue harvested from cadavers to tissue banks for resale and medical use. Appellees and McCafferty agreed to provide cadavers from appellees' business to Mastromarino for $1,000 each. The arrangement was undertaken without the knowledge or consent of the families of the deceased and continued through September 2005, at which point Mastromarino learned that the Food and Drug Administration ("FDA") was investigating him. Mastromarino advised appellees to destroy their records, which they did by incinerating them in a crematory, just days before FDA investigators arrived. By that time, at least 244 cadavers had been provided to Mastromarino by appellees, for which appellees received over $245,000.
A grand jury charged appellees with 244 counts of theft by unlawful taking (of body parts), abuse of corpses, and various other charges, including fraud associated with appellees' filing false claims with the Pennsylvania Department of Public Welfare seeking reimbursement for providing funeral services to the indigent. Appellees evidently rejected a plea offer in July 2008 and trial was scheduled for September 2, 2008. Appellees informed the Commonwealth that they intended to continue to trial, even knowing that all other co-defendants intended to plead guilty and cooperate with the Commonwealth. The Commonwealth prepared for trial, but on the scheduled trial date, appellees pleaded guilty to all charges. At a sentencing hearing in October 2008, the court imposed prison terms of eight to twenty years upon each appellee
At that same sentencing proceeding, the Commonwealth also asked if the court would "consider requiring the defendants to pay cost[s] of prosecution or a portion," arguing that its personnel had to devote extensive resources and hours to prepare for a trial that could have lasted three months and required dozens of witnesses and hundreds of exhibits. The Commonwealth argued that imposing prosecution costs was within a trial court's discretion. The trial court denied the request, but the Commonwealth filed a motion to reconsider, seeking nearly $18,000 in costs. The Commonwealth cited and quoted 16 P.S. § 1403, the "all counties" version of Section 7708. The motion argued that "[t]he inordinate amount of resources devoted to preparing for the complex trial of these two guilty defendants should not be borne by the city if they can afford to pay the costs." In terms of statutory authority, the Commonwealth asserted that "[t]here is no basis for which costs of prosecution should be denied. . . ." Commonwealth's Motion to Reconsider Expenses Incurred by District Attorney, 10/31/08 (citing Commonwealth v. Hernandez, 917 A.2d 332 (Pa.Super.2007) (holding 16 P.S. § 1403 constitutional in context of imposition upon defendant of cost of Commonwealth's mental health expert)).
In December 2008, the court granted reconsideration and ordered the Commonwealth to prepare itemized costs. The Commonwealth filed a motion to amend its previous motion, stating that in calculating the total costs, it became clear that the previous estimate of nearly $18,000 had understated the actual expenditures. In the amended motion, the Commonwealth claimed over $370,000, which included, inter alia, the salaries of the ADAs and county detectives who worked on the case (roughly $85,000 per appellee), and costs associated with the grand jury (roughly $5,000 per appellee). Commonwealth's Motion to Amend Motion to Amend Its Motion to Reconsider Expenses Incurred by District Attorney, 12/18/08.
At a hearing in January 2009, the trial court stated that its understanding of imposable costs, based on case law, was that courts have discretion to impose costs that are "reasonably necessary for the prosecution and not within the ambit of usual services provided absent extraordinary circumstances." The court declined to "parse out" salary time of those district attorney personnel who worked on this as well as other matters, but did view as imposable the salary hours of district attorney personnel who worked exclusively on this case, which was complex and demanding, creating the sort of "extraordinary circumstance" that warranted imposition of amounts representing prosecutorial personnel salary hours. Appellees' attorney protested that imposing these costs after restitution to the victims' families had already been negotiated and agreed upon as part of appellees' plea bargain amounted to improper "double dipping." The trial court held that, in light of the complex and time-consuming nature of the matter, prosecution costs representing ADA and detective salary hours could be assessed against appellees (roughly $90,000 per appellee). N.T., 1/29/09, at 35-46, 51-52, 70-71. Appellees appealed.
In its Pa.R.A.P. 1925(a) opinion, the trial court cited Section 7708 to support its order, as well as Commonwealth v. Cutillo, 294 Pa.Super. 560, 440 A.2d 607, 609 (1982), which held that prosecution costs may be assessed upon a showing by the Commonwealth that the costs sought were
In separate but largely identical published opinions in appellees' appeals, the Superior Court affirmed assessment of the costs associated with the grand jury, but vacated the trial court's imposition of the costs representing ADA and detective salary hours. Commonwealth v. (Louis) Garzone, 993 A.2d 1245 (Pa.Super.2010); Commonwealth v. (Gerald) Garzone, 993 A.2d 306 (Pa.Super.2010).
The panel disagreed with the Commonwealth's contention that ADAs' salaries were necessary expenses incurred in prosecution because of the complexity of the case and the effort expended by Philadelphia prosecution personnel in preparation for trial. The panel stated that "to accept the Commonwealth's position would, in effect, make the District Attorney's Office operate as a private law firm using billable hours. Clearly, this was not the intent of the Legislature. . . ." The panel also referenced the "American Rule," which provides that the parties to litigation generally pay their own legal costs, and assessment of attorneys' fees from another party is viewed as exceptional and limited to instances of contractual agreement, which was not present here, or explicit statutory authorization.
This Court granted the Commonwealth's petitions for allowance of appeal and consolidated the cases. The question presented, as phrased by the Commonwealth, is: "Did the Superior Court err in removing the cost of employing county detectives and assistant district attorneys from the trial court's discretion to impose prosecution expenses on a convicted offender?" Commonwealth v. Garzone, 607 Pa. 324, 6 A.3d 499 (2010).
The Commonwealth argues that the Superior Court's ruling improperly invaded the sphere of the trial court's discretion to order a criminal defendant to pay costs and expenses associated with prosecution. The Commonwealth critiques the Superior Court's distinction between expenditures that are extraordinary or unbudgeted (deemed recoverable costs) and salaries paid regularly out of county treasuries (deemed non-recoverable) as flawed, illogical, and contrary to the plain language of Section 7708. The Commonwealth asserts that the statute's plain language reflects a legislative purpose and intent to enable trial courts, within their discretion, to order recovery of county district attorneys' investigation and prosecution personnel expenses. According to the Commonwealth, a contrary conclusion, "turns on its head the legislative intent of making the criminal, instead of the taxpayer, bear all the costs of his crime." Commonwealth's Brief at 12-15.
The Commonwealth points to Commonwealth v. Davy, 456 Pa. 88, 317 A.2d 48 (1974) (per curiam), in which this Court upheld imposition of costs associated with extraditing the defendant from Texas to Pennsylvania, as support for the premise that the legislative intent is to shift the costs of crime to offenders capable of bearing them, regardless of who bears the initial burden of payment. The Commonwealth adds that the Superior Court's decision contravenes basic economic realities, particularly in light of the need for public austerity: "[E]ven where a district attorney succeeds (whether by choice or necessity) in operating within an existing budget, costs—which economists call `opportunity costs'—are nevertheless born[e] by the county in the form of a reduced overall ability to combat crime." Commonwealth's Brief at 15-16.
Returning to Section 7708, the Commonwealth states that the statute's plain terms do not restrict "costs" to extraordinary or unexpected prosecution costs, but allow recovery of "all necessary expenses" incurred in investigating and prosecuting crimes. To the Commonwealth, the Superior Court's distinction between unbudgeted costs and costs paid regularly out of the county treasury, taken to its logical conclusion, could negate any application of the statute because "[t]he reality is that all prosecution expenses are born[e] by the county" and might therefore never be recoverable. The Commonwealth posits that because a statute may not be read or applied so as to negate itself, the Superior Court erred and should be reversed. Commonwealth's Brief at 16-17.
Alternatively, the Commonwealth asserts that even if the American Rule is applicable in the criminal context, Section 7708 expresses a legislative intent that overcomes the Rule. Moreover, the Commonwealth claims, assessment of costs from a criminal defendant is a matter of trial court discretion. From this premise, the Commonwealth argues that any attempt by appellees to circumvent the trial court's sentence, including its assessment of costs for ADA and detective salary hours, should be seen as a waived claim that the trial court abused its discretion in composing appellees' sentences. This is so, the Commonwealth argues, because appellees argued to the Superior Court only that the trial court simply lacked authority to assess costs representing ADA and detective salary hours. Commonwealth's Brief at 21-24.
Appellees respond that if the General Assembly intended for Section 7708 and like statutes to encompass ADA and/or county detective salary hours, multiple on-point cases would already exist and the scope, extent, and reasonableness of the Commonwealth's claimed entitlement would be amply litigated. Primarily, however, appellees argue that to construe ADA and detective salary hours as recoverable costs would upset the American Rule, which appellees view as bedrock. Appellees note that exceptions to the American Rule are explicit, specific, and precise in granting one party the ability to recover attorneys' fees from the opposing party. Appellees' Brief at 5-8 (citing, inter alia, 42 Pa.C.S. § 2503) (listing nine instances when "a reasonable counsel fee" may be awarded, including when other party acts in bad faith or engages in "dilatory, obdurate or vexatious conduct" in course of litigation).
Appellees add that Pennsylvania courts have consistently rejected claims seeking new or non-express exceptions to the American Rule, even if the legislative scheme under which the litigant seeks attorneys' fees is liberally construed. Among other cases, appellees invoke Mosaica Academy Charter School v. Commonwealth, Department of Education, 572 Pa. 191, 813 A.2d 813 (2002). In Mosaica, this Court held that although the Declaratory Judgments Act "has been declared to be remedial . . . and is to be liberally construed and administered[,]" it does not expressly authorize an award of counsel fees. Id. at 824 (internal quotation marks omitted). Appellees emphasize that in the criminal context, "costs" such as filing fees
In terms of Section 7708, appellees dispute the Commonwealth's view that ADA and detective salary hours are recoverable as "expenses." Appellees note that there is no explicit authorization of fee-shifting in the statute. Appellees cite (and quote) Merlino v. Delaware County, 556 Pa. 422, 728 A.2d 949 (1999), as a useful example where this Court distinguished between attorneys' fees and an "expense" in the context of the civil remedy provision of the Storm Water Management Act at 32 P.S. § 680.15(b).
According to appellees, both common sense and cases decided consistently under the Commonwealth's criminal costs statutes suggest that "expenses" are best understood as expenditures, charges, and disbursements by a district attorney's office that occur outside of the office's regular and consistent operations. Appellees' examples include the extradition of the defendant from Texas to Pennsylvania in Davy, supra, and the retention of a surveyor and a physicist to testify as automobile accident reconstruction experts in the prosecution of a defendant charged with driving while intoxicated and involuntary manslaughter in Commonwealth v. Hower, 267 Pa.Super. 182, 406 A.2d 754 (1979). Appellees posit that recoverable expenses share two characteristics: they are outside the ambit of usual services (like office supplies and regularly paid salaries) and involve an actual unbudgeted outlay of funds. Appellees' Brief at 14-16.
Appellees remark that this case already involves appropriate and non-disputed "expenses" recovered by the Commonwealth, such as amounts expended for death certificates and for searches and reproduction of medical, real estate, and bank records. These "discrete" expenses, appellees argue, differ in substance from the sort of "billable hours" that private law offices can and do charge their clients and that may be recoverable in civil actions as attorneys' fees. Appellees add that Section 7708 appears in Article XII of the County Code, "District Attorney, Assistants and Detectives," which establishes a county obligation to fund various aspects of its district attorney's office, including office space, access to law books, travel costs, and the salaries of assistant district attorneys and detectives. Appellees note that several of the provisions in this Article have been repealed, particularly Section 7705, which provided for district attorney salaries to be paid out of the county treasury but did not express an alternative means by which salary amounts could be recovered by the Commonwealth in conjunction with criminal convictions. Despite the repeal, appellees argue that the
Appellees also dispute the Commonwealth's argument that prosecution salaries are recoverable as restitution. Restitution has its own provision in the Crimes Code
In reply, the Commonwealth emphasizes that prosecutorial personnel salary hours expended exclusively on a particular prosecution should be recoverable from financially capable defendants as a form of restitution, not damages, and that the American Rule is inapplicable in the criminal context. According to the Commonwealth, theoretical precedent for imposition of attorneys' fees as costs in the criminal context may be found in Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702 (1992). The Harner Court concluded that the defendant, who had abducted her children from their father's legal custody and taken them from Pennsylvania to Louisiana, could be held responsible for costs expended by her estranged husband in recovering the children. The costs included "amounts expended [by the father] for private investigators, trying to locate his children, for legal fees, within Louisiana and Pennsylvania, and for expenses for trips to Louisiana." The sums due, the Commonwealth notes, were deemed acceptable as a form of restitution, a condition of probation, and "a constructive alternative to imprisonment." Id. at 703-07 (internal quotation marks omitted). Hence, the Commonwealth suggests, there is no reason that the sums sought from appellees cannot be viewed as both a recovery of costs and restitution. The Commonwealth also counters appellees' assertion that if prosecutorial personnel salary hours were deemed recoverable statutory costs, ample case law on the subject would already exist, by noting that the dearth of caselaw may be explainable by the reality that nearly all criminals are "either indigent or nearly so" and therefore are unable to pay. Commonwealth's Reply Brief at 4-14.
The question on appeal involves statutory construction, which is a question of law; thus, our review is plenary. Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007). The issue has been well-briefed by both parties, indeed
"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." 1 Pa.C.S. § 1921(a). The plain language of the statute is generally the best indicator of legislative intent, Commonwealth v. McCoy, 599 Pa. 599, 962 A.2d 1160, 1166 (2009), and the words of a statute "shall be construed according to rules of grammar and according to their common and approved usage. . . ." 1 Pa. C.S. § 1903(a). We generally look beyond the plain language of the statute only where the words are unclear or ambiguous, or the plain meaning would lead to "a result that is absurd, impossible of execution or unreasonable." 1 Pa.C.S. § 1922; see also Commonwealth v. Diodoro, 601 Pa. 6, 970 A.2d 1100, 1106 (2009). When, however, "the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters": the occasion and necessity for the statute; the circumstances under which it was enacted; the mischief to be remedied; the object to be attained; the former law, if any, including other statutes upon the same or similar subjects; the consequences of a particular interpretation; the contemporaneous legislative history; and the legislative and administrative interpretations of such statute. 1 Pa.C.S. § 1921(c). Also, we may look to statutory titles and headings, 1 Pa.C.S. § 1924, and if considering statutes in pari materia, we may consider how particular statutes addressing the same persons, things, or subject matter are grouped together within respective chapters, titles, and sections. 1 Pa.C.S. § 1932.
Furthermore, we note, the Statutory Construction Act requires penal provisions of statutes to be strictly construed, 1 Pa.C.S. § 1928(b)(1); thus, where an ambiguity is found in the language of a penal statute, "such language should be interpreted in the light most favorable to the accused. . . . ." Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d 862, 868 n. 5 (2003) (quoting Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843, 846 (2001)). Notably, both of our intermediate appellate courts have held that provisions for monetary fines associated with criminal convictions are penal in nature. See Commonwealth v. Campbell, 758 A.2d 1231, 1236 (Pa.Super.2000) (quoting BLACK'S LAW DICTIONARY 1020 (5th ed.1981): "[A] penal statute is a statute that defines criminal offenses and specifies corresponding fines and punishment.") (internal brackets and quotation marks omitted); see also Commonwealth v. Teeter, 961 A.2d 890, 897 (Pa.Super.2008) (same); Commonwealth v. Stone & Co., 788 A.2d 1079, 1082 (Pa.Cmwlth. 2001) (same with regard to concrete batch plant's violation of municipal noise ordinance). This Court has not had occasion to address whether statutes authorizing an assessment of expenses in criminal cases are penal, and neither party presses the specific point. Nevertheless, the gravamen of the Commonwealth's position sounds in the notion that assessing prosecutorial and detective salaries as expenses is a proper component of a punishment scheme. Moreover, the statute at issue speaks of defendants "convicted and sentenced" to pay costs. Thus, we will accept the premise that Section 7708 is penal in nature and therefore subject to strict construction in favor of appellees.
Section 7708 is titled, "Expenses incurred in investigation of crime, etc.; payment by county or defendant" and consists of two sentences, the first establishing the
16 P.S. § 7708.
Notably, neither party here asserts that there is ambiguity in the statutory language, and thus, neither proceeds with a developed argument according to statutory construction precepts implicated upon a finding of ambiguity. The Commonwealth argues that the plain language of the statute encompasses salary hours expended on a given case by regular staff prosecution and investigative personnel; appellees rejoin that the statute does not mention salaries and cannot be read to include prosecution personnel salaries as "expenses," particularly given the way in which awards of attorneys' fees have traditionally been approached. Under the plain language of the statute, there is some facial appeal in both positions. The statute says that the "expenses" of the prosecutor, in connection with the case, shall be considered part of the "costs" and paid by the defendant, in cases where the defendant is convicted and sentenced to pay the costs of prosecution. On the one hand, the statute does not specifically identify salaries of prosecutors and detectives as "expenses" and, in the legal realm at least, there is considerable force in appellees' position, which was accepted by the panel below, that salaries involving party opponents are viewed distinctly from other expenses, and require specific statutory authorization. On the other hand, the term "expenses" is neither defined nor limited, and it could be read broadly enough to embrace prosecutorial personnel salaries. See, e.g. WEBSTER'S NEW WORLD DICTIONARY 493 (2nd College ed.1986); (defining "expense" as, alternatively, "financial cost; fee; charge"; "any cost or sacrifice"; "a cause of spending; drain on one's finances"; see also BLACK'S LAW DICTIONARY 617) (8th ed.2004) (defining "expense" as "[a]n expenditure of money, time, labor, or resources to accomplish a result"); accord Merlino, 728 A.2d at 951 ("Certainly, as a matter of common parlance, attorneys' fees may be considered a form of `cost' or `expense' to a litigant.").
Recognizing that the term "expenses" could be read either narrowly or broadly within the context of a plain meaning consideration, we do not view a broad reading to be the best, or most reasonable, construction of the term. Several of the precepts of construction, noted above, counsel in favor of this conclusion.
First, considering Section 7708 in pari materia with other provisions found in Article XII of the "Counties of the First Class" portion of the County Code, we note that Article XII includes provisions addressing the qualifications of the elected Philadelphia District Attorney and ADAs, budgeting for law books, elections for the office of District Attorney, minimal "fees" receivable for certain types of cases (Section
Second, a review of other statutory provisions dealing with "expenses" and attorneys' fees reveals that the General Assembly has often been specific in conveying its intention that attorneys' fees are recoverable. For example, the statutory provision governing "fines and penalties" that may be assessed against an individual found to have committed workers' compensation fraud states clearly that the "prosecuting authority" successfully undertaking workers' compensation fraud litigation may recover statutory fines beginning at $5,000: "The penalty shall be paid to the prosecuting authority to be used to defray the operating expenses of investigating and prosecuting violations of this article. The court may also award court costs and reasonable attorney fees to the prosecuting authority." 77 P.S. § 1039.11(a). This provision addresses salaries directly, distinguishes between salaries and expenses, and authorizes recovery of both. A fair number of other statutory provisions reflect the same treatment of expenses and amounts representing attorneys' fees as different from each other, even though both may be recoverable.
Third, the directive to read penal provisions narrowly and in favor of criminal defendants, particularly when considered in conjunction with the above two concerns, weighs in favor of a finding that Section 7708 does not authorize recovery, as "expenses," of the salaries paid to prosecution and investigative personnel who work on a particular case. Again, the statute does not expressly identify prosecution-related salaries as recoverable expenses,
Fourth, like the panel below, we may find further, albeit indirect, support for appellees' position in the decisional law concerning prosecution expenses. We are aware of no case, and the Commonwealth has cited none, where Section 7708 (or its analogues respecting other counties) has been construed to allow, as expenses, the regularly budgeted salaries of prosecutors and investigative staff. In Commonwealth v. Davy, this Court certainly employed broad language, stating that "it is clear that the Legislature intended to include in the costs for which a convicted person is liable the costs of all proceedings requisite for the final disposition of the case." 317 A.2d at 48 (construing previous version of non-first class county version of Section 7708). However, that language must be read against the issue in Davy, which was not "expenses" representing prosecutorial staff salaries, but the distinct expense of approximately $1,000 incurred in extraditing the defendant from Texas to Pennsylvania. Id.; see also Commonwealth v. Coder, 490 Pa. 194, 415 A.2d 406, 408-10 (1980) (upholding imposition upon defendant of approximately $8,000 in costs of changing venue at defendant's request from one county to another). Other cases addressing recovery of prosecutorial expenses likewise addressed discrete expenses rather than regular prosecutorial personnel salary hours. See, e.g., Commonwealth v. Larsen, 452 Pa.Super. 508, 682 A.2d 783, 796-97 (1996) (upholding nearly $40,000 in costs associated with convening grand jury investigation); Commonwealth v. Cutillo, 294 Pa.Super. 560, 440 A.2d 607, 609 (1982) (upholding imposition of costs to pay for local constable service to guard defendant at hospital until he recovered and could be arrested and incarcerated because costs expended were necessary to prevent escape and ensure prosecution); Commonwealth v. Hower, 267 Pa.Super. 182, 406 A.2d 754, 758 (1979) (upholding imposition of prosecution expenditure to retain surveyor and physicist to testify as automobile accident reconstruction experts in prosecution of defendant charged with driving while intoxicated and involuntary manslaughter); accord Fordyce v. Clerk of Courts, 869 A.2d 1049, 1053 (Pa.Cmwlth.2005) ("[S]heriff's transportation costs are not part of the costs of prosecution imposed by the sentencing court. . . .").
Arguably, the closest analogue is the Superior Court's decision in duPont, supra, since that case, like this one, involved expenses representing prosecution salary costs. In duPont, the panel held that recovery of expenditures representing specially retained prosecutorial personnel may be permissible if the Commonwealth can demonstrate extraordinary circumstances.
In duPont, the defendant shot and killed a wrestling coach who worked at the training facility that duPont sponsored and maintained on his estate in Delaware County; he was convicted of third-degree murder and simple assault but was also found to be mentally ill. The trial court imposed total prosecution costs exceeding $700,000 and the Superior Court affirmed, explaining that recovery of the cost of a specially-hired ADA to try the case, as well as several legal interns who assisted in research, was appropriate because the district attorney's office had had two vacancies during the initial stages of prosecution, and to meet its prosecutorial obligations in this and all other cases, the
In short, duPont approved the recovery of prosecution salaries in what was deemed to be an extraordinary situation. We may assume that this approach was a proper one, and may further assume that the factual circumstances in duPont satisfied the rule the panel applied, but it would not advance the statutory interpretation necessary for the Commonwealth to prevail here.
A final statutory construction precept of relevance here invites an examination of the consequences of a particular interpretation. This precept has been addressed by the parties to the extent their arguments involve policy concerns. The Commonwealth asserts that if Section 7708 is read broadly to include prosecutorial personnel salaries, this would ensure that the "costs of crime" remain upon convicted defendants and are not drained from the public fisc. Moreover, the Commonwealth adds, such a recovery paradigm would serve the public interest: the "paying" cases could help to offset the costs of the "non-paying" ones involving
We have no doubt that, as a matter of pure policy, the notion that the costs of crime should be shifted from the public fisc onto financially able wrongdoers is a legitimate one. But, neither do we doubt that there may be countervailing policy considerations, including the effect upon plea calculations, and the related question of the timing of an expense assessment (under this statute, and the Commonwealth's interpretation, the expense would not be known until sentencing). Ultimately, we view the effects/policy consideration as equivocal and, for the reasons we have expressed above, we find that Section 7708 does not authorize recovery by the Commonwealth, as expenses, of its costs relating to the salaries of its regularly staffed personnel.
Affirmed.
Justices SAYLOR, EAKIN, BAER, TODD, McCAFFERY and ORIE MELVIN join the opinion.