Class-action lawsuit: Delco illegally retains bail money
PHILADELPHIA » A Port Allegany man has filed a class-action lawsuit alleging Delaware County wrongfully withheld bail money he was due after he was found not guilty or charges were otherwise dismissed or withdrawn from a
2016 arrest.
Tony Burford is alleging violations of the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution, as well as conversion and a Monell claim alleging an unconstitutional policy, according to an amended class action lawsuit filed in the U.S. District Court for the Eastern District of Pennsylvania last year.
The suit, filed by attorneys Alan Denenberg and Stephen Thomas O’Hanlon, names Delaware County, former Prothonotary Angela Martinez, Director of Court Financial Services Patricia Oreskovich and Director of PreTrial/Bail Services Philip Pisani as defendants.
Suzanne McDonough, the attorney representing all four defendants, did return a call seeking comment last week.
Burford was charged in Darby Borough in January 2016 with indecent assault, indecent assault against a person less than
16 years old, unlawful contact with a minor and corruption of a minor. Bail was initially set at
$100,000, but was reduced to 10% of $60,000, according to court records. Burford posted the required $6,000 Jan. 15, 2016.
The indecent assault charge was withdrawn, but the commonwealth proceeded to trial on the charges of corruption of minors, indecent assault on a person less than 16 years old and unlawful contact with a minor. The corruption charge was dismissed and Burford was found not guilty on the other two charges following a jury trial in March 2017.
Burford went to collect his bail money April 4, 2017, but received only $2,467, according to the complaint. When he questioned this amount, a clerk allegedly told Burford that certain “customary deductions” had been removed and that there was no way for him to contest them or seek a refund.
The deductions included
$2,400 to the county under a
40% bail handling fee, as well as $811.80 in constable fees, $5 for constable education training,
$16.25 for constable certification and $300 to the arresting agency, according to the complaint, for a total $3,533 retained.
Burford is not seeking a return of the $2,400, which is permissible under state law, but is seeking the return of $833 in constable fees and a $300 “Live Scan” or digital fingerprinting fee.
The complaint explains that under state law, the costs of constable fees are to be paid by the court. When criminal defendants are found guilty, the court can pass these fees on to the defendant as part of the costs of prosecution, according to the complaint.
By rule, bail money is returned to defendants even in criminal cases where they are found guilty unless the prosecutor files a motion to attach those funds within 20 days of final disposition, according to the complaint.
“By contrast, and as the plaintiff was informed when he tried to get the court costs returned to him, there is no rule or procedure that permits an arrestee who has had his or her charges dismissed to challenge the retention of bail to cover court costs or by which he or she can seek a return of impermissibly retained bail money,” the complaint says.
One section of Pennsylvania statutes does allow for those who are aggrieved by search and seizure or property seized and placed into evidence to have that property returned, according to the complaint, but that does not apply to bail money voluntarily deposited with the court.
What the law does provide, Burford claims, is that where the defendant is “discharged or indigent or the case is otherwise dismissed,” the court shall assess fees to the county that brought the charges – not the defendant.
The complaint argues that using part of Burford’s bail money for court costs in the form of constable fees therefor constituted an impermissible fine or penalty barred by the federal Constitution and Pennsylvania common law.
Burford additionally alleges that this was not confined to his case, but is part of a continuing and well-entrenched policy in the county that has injured numerous other criminal defendants who
were ultimately found not guilty or otherwise had their cases dismissed.
He is seeking injunctive relief and monetary damages, including compensatory damages, attorneys’ fees and costs, and all other relief the court deems just and equitable.
District Judge John Milton Younge previously ruled that Martinez could not be sued in her official capacity and that all defendants were entitled to qual
ified immunity in their individual and personal capacities.
The judge also dismissed Burford’s substantive due process claim under the Fourteenth Amendment, but not his procedural due process claim or any of the other counts.
The case has been referred to Magistrate Judge Sandra Carole Moore Wells for settlement discussions. Discovery is due by Jan. 21 and a final pretrial conference is set for Aug. 3.