                                      FINAL REPORT1


                       Amendments to Pa.Rs.Crim.P. 531 and 536

                                   BAIL FORFEITURES



       On May 2, 2017, effective July 1, 2017, upon the recommendation of the Criminal
Procedural Rules Committee, the Court amended Rules 531 (Qualifications of Surety)
and 536 (Procedures upon Violation of Conditions: Revocation of Release and
Forfeiture; Bail Pieces; Exoneration of Surety) to address changes made to the bail
forfeiture practices as a result of Act 16 of 2015.
       Since 2014, the Committee had been discussing bail forfeitures. Initially, this
was as a result of the Pennsylvania Supreme Court’s opinion in Commonwealth v.
Hann, 81 A.3d 57 (Pa. 2013). This case was used by the Court to clarify that a “totality
of the circumstances” analysis be used when a bail authority is faced with a request for
the forfeiture of the bail bond. Specifically, the Court held that forfeiture could be
awarded for the violation of non-monetary conditions of bail and that there need be no
showing of financial loss to the Commonwealth. Initially, the Committee was considering
adding a cross-reference to Hann to the bail rules, but also was examining whether the
rules should provide some type of hearing procedure in which the analysis required
under Hann could be conducted.
       While the Committee was considering this issue, the Legislature enacted Act 16
of 2015 that is intended to provide uniformity to the regulation of professional bail
bondsmen in Pennsylvania. The Governor signed the Act into law on July 2, 2015.
Much of the Act deals with licensing and regulation of professional bail bondsmen.
However, there are provisions in the Act that affect the forfeiture provisions of Rule 536
and some of these provisions were explicitly enacted to modify the provision in Hann.

1
  The Committee's Final Reports should not be confused with the official Committee
Comments to the rules. Also note that the Supreme Court does not adopt the
Committee's Comments or the contents of the Committee's explanatory Final Reports.



Bail Forfeitures Final Report: 05/02/2017
In particular, the Act creates new 42 Pa.C.S. §5747.1 that provides procedures for bail
forfeiture. Several of the provisions of new Section 5747.1 differ from the existing bail
forfeiture procedures contained in Rule 536.
       The Committee discussed whether aspects of the Act unconstitutionally impinged
on the Court’s exclusive procedural rule-making authority. Prior to this Act, the
Legislature had deferred most aspects relating to bail to the Court’s rulemaking
authority in 42 Pa.C.S. §5702 that states:


       § 5702. Bail to be governed by general rules
       Except as otherwise provided by this title and the laws relating to the
       regulation of surety companies, all matters relating to the fixing, posting,
       forfeiting, exoneration and distribution of bail and recognizances shall be
       governed by general rules.

As a result, the bail rules contain some elements that might be more substantive than
purely procedural. Additionally, Section 5702 contains the prefatory phrase, “Except as
otherwise provided in this title…” that reserves the right of the Legislature to act in these
areas so long as it does not interfere with the Court’s constitutional rulemaking
authority. Ultimately, the Committee concluded that some of the provisions in Act 16
related to forfeiture, particularly the grounds for which forfeiture may be ordered, did not
impinge on the Court’s rulemaking authority and represented the Legislature exercising
the right reserved in this area to act on the substantive aspects of bail that it had left to
the Court under Section 5702. The Committee discussed which specific aspects of the
Act might constitute procedural conflicts and those that were of a substantive nature
and represented a “taking back” by the Legislature of authority over certain aspects of
bail. The Committee concluded that, while some aspects of new Section 5747.1 are
procedural in nature, many of the provisions of Section 5747.1 address substantive
aspects of bail forfeiture and, therefore, fall within the Legislature’s authority.
       With regard to those portions of the Act that raise potential procedural conflicts,
the Committee recognized that the Court has not always exercised the right to suspend
statutes that impinged on the Court’s constitutional rulemaking authority. The
Committee therefore examined the areas of potential conflict to determine if rule
changes could be made that would reconcile the bail rules with the Act. The Committee

Bail Forfeitures Final Report: 05/01/2017                                                   -2-
initially identified five areas where there are differences between Section 5747.1 and the
forfeiture procedures contained in Rule 536.
       First, Rule 536 treats revocation of bail and forfeiture of surety as separate
decisions and provides for two separate actions to notify the defendant of these
decisions. Rule 536(A)(1) provides that, upon violation of a bail condition, the bail
authority may issue a bench warrant for the defendant and may issue an order to the
surety to provide an explanation as to why the defendant’s release should not be
revoked. Paragraph (A)(2) contemplates that a separate notice of forfeiture be provided
to the defendant and the surety with 20 days to respond. Section 5747.1(a) provides
that, upon a defendant’s failure to appear for a proceeding, the bail authority may issue
a notice of bail revocation that shall also serve as a notice of the intent to forfeit the bail.
Ninety days after the service of this notice of revocation, the revocation shall become a
judgment of forfeiture.
       In examining whether Rule 536 should be changed to reflect the statutory
procedure, the Committee concluded that the procedure in Section 5747.1(a), i.e.
having the notice of bail revocation act as the notice of intent to forfeit, is problematic
since not every bail revocation will involve forfeiture. The Committee concluded that
some additional notice must be provided to the defendant and the surety that forfeiture
as well as revocation was being sought.
       Therefore, the notice provisions of Rule 536 are retained but the Comment has
been revised to state that the two notices may be served simultaneously. These two
notices could be combined in a single document and therefore would be an effectuation
of the Act from a procedural stand-point, providing appropriate, complete notice to the
defendant and the surety.
       The second potential conflict, related to the foregoing, was that Rule 536(A)(2)(c)
provides 20 days from the service of the notice of forfeiture before the forfeiture order is
finalized. Section 5747.1(b)(1) provides that the notice of revocation will become a
judgment of forfeiture 90 days after the revocation order, allowing the surety time in
which to respond to the forfeiture action. After reviewing the practice in other
jurisdictions, the Committee concluded that an increase to the time limit to respond to a



Bail Forfeitures Final Report: 05/01/2017                                                     -3-
notice of forfeiture would not be unreasonable. Therefore the time for a response to the
notice of forfeiture has been increased to 90 days in paragraph (A)(2)(c) of Rule 536.
       The third potential conflict concerned the provisions in Rule 536 (A)(1)(a) that
permit forfeiture for violation of any bail condition. Paragraph (b)(6) of Section 5747.1
specifically limits the forfeiture exposure of third party sureties to the situation where the
defendant has failed to appear and provides that any violation of “performance
conditions by a defendant other than appearance” shall be treated as an indirect
criminal contempt.
       The Committee first examined whether this limitation on the grounds for which
the bail bond may be forfeited is procedural or substantive. The Committee ultimately
concluded that the definition of the grounds for forfeiture represent a regulation of the
right of a surety to the recovery of the pledged property and therefore is substantive in
nature, falling within the authority of the Legislature to define. Therefore, a second
sentence has been added to Rule 536(A)(2)(a) stating the limitation when the surety is a
third party. Language has also been added to the Comment that further details this
limitation.
       Fourth, Section 5747.1(a) states that service of the notice to the surety must be
by certified mail, return receipt requested while Rule 536 requires that the notice of
forfeiture be served either personally or by both first class and certified mail at the
defendant's and the surety's last known addresses. The Committee concluded that
there is not a conflict here between the service provisions of the rule and the statute
since the rule simply adds another procedural step for further assurance that service
has been made.
        Fifth, Rule 536(C) provides broad discretion to the courts to provide exoneration
and remittance to a surety. Section 5747.1(b)(5) provides very specific relief for third
party sureties that the bail authority is required to grant in certain circumstances. For
example, if the defendant is returned between the 91st day and 6 months after the
issuance of the forfeiture order, the surety is entitled to recover the full amount of the
forfeited bail. If the defendant is returned between 6 months and 1 year, the surety is
entitled to 80% of the forfeited bail and 50% if the defendant is returned between 1 and
2 years.

Bail Forfeitures Final Report: 05/01/2017                                                    -4-
       The Committee considered whether these provisions are procedural or
substantive and concluded that these provisions are substantive. Rather than
incorporate these specific provisions into the rule, the terminology of the rule would be
changed, removing the general statement regarding the bail authorities’ discretion and
replacing it with the term “as provided by law” in paragraphs (A)(2)(d) and (C)(1) as well
as adding a cross-reference to the statute in the Comment. However, to clarify that the
bail authority’s discretion remains unchanged in cases not affected by Section 5747.1,
the phrase “or as justice requires” has been added to paragraph (C)(1) to read “A bail
authority, as provided by law or as justice requires, shall exonerate a surety….”
Paragraph (A)(2)(d) does not require similar language since it already contains the
phrase “if justice does not require the full enforcement of the forfeiture order.” The
phrase “in a timely manner” currently contained in paragraph (C)(1) now refers back to
the time provisions within Section 5747.1(b)(5).
       Finally, a revision has been made to the Comment to Rule 531(Qualifications of
Surety). Since the Act now includes a definition of surety, the Committee concluded
that it would be helpful to include a cross-reference to the statutory definition in the Rule
531 Comment.




Bail Forfeitures Final Report: 05/01/2017                                                 -5-
