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2000 PA Super 268
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
J. H. B.,
No. 1577 MDA 1999
Appeal from the Order in the Court of
Common Pleas of Berks County,
Criminal Division, No. 426-J-1999
BEFORE: CAVANAUGH, DEL SOLE and TAMILIA, JJ.
OPINION BY TAMILIA, J.:
Filed: September 12, 2000
The Commonwealth appeals from the September 3, 1999 Order of
disposition which places appellee, J.H.B., under the terms of informal
On February 23, 1999, J.H.B. and his juvenile companion were in
possession of a BB gun. J.H.B. shot a girl in the buttocks and his companion
shot another girl in the leg. Thereafter, J.H.B. was charged by juvenile
petition with simple assault and sale and use of air rifles.1 Following J.H.B.'s
admission to the charges and its acceptance by the Commonwealth and the
Court, a hearing was conducted for disposition purposes. The following
evidence was presented at the hearing and summarized by the trial court.
J.H.B. is active with Berks County Children and
Youth Services (BCCYS) for issues of parental abuse
1 These offenses, if committed by an adult, would constitute the crimes of
simple assault, 18 Pa.C.S.A. § 2701, and sale and use of air rifles, 18
Pa.C.S.A. § 6304.
and/or neglect. He continues to receive counseling
for his problems with his mother. The counseling,
however, has not been successful in reunifying the
family and remedying the parent-child conflicts. The
BCCYS caseworker believed that the child's issues
were actually dependency issues which needed to be
addressed in the context of counseling.
The juvenile probation office recommended
that J.H.B. live with his baseball coach and his wife
instead of with his mother. The child's grandmother
lives across the street from the coach so the
arrangement would maintain family contact for
J.H.B. The probation officer for J.H.B. also believed
that the child's problems were primarily those of
dependency rather than delinquency.
The Commonwealth refused to agree to a
consent decree because a firearm was used in the
offense and two victims were involved.
(Trial Court Opinion, Grim, J., 11/17/99, at 2.) Upon review of the evidence,
and over the objection of the Commonwealth, the Court ordered the
following in the form of an informal adjustment.
· J.H.B. was to reside with his baseball coach and
his wife, who were granted temporary legal
· J.H.B. was to continue counseling; pay costs and
fees; write a letter of apology to the victim;
perform community service; and associate with
neither his juvenile companion nor the victims.
On appeal, the Commonwealth seeks a determination as to whether
the trial court erred in disposing of the matter through the use of informal
adjustment "after the Commonwealth invoked its statutory right to preclude
the entrance of a consent decree". (Appellant's brief at 4.)
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Appellee responds by arguing that the September 3, 1999 Order of
disposition is not a final order subject to review by this Court. We disagree.
"In ascertaining what is a final appealable order, this Court must look
beyond the technical effect of the adjudication to its practical ramifications."
Grove North America v. Arrow Lift & Constr. Equip. Co., 617 A.2d 369,
372 (Pa. Super. 1992).
Upon careful review of the language of the Order, we find that it
disposes of J.H.B.'S case such that review by this Court is appropriate.
Unlike the facts in Interest of K.B., 639 A.2d 798 (1994), where the order
in question was "temporary" in nature thus allowing the court to make a
more proper determination of the juvenile's needs in the future, the Order
fully disposes of J.H.B.'S case, making it final for purposes of our review. It
is no less a final disposition, albeit improper, pursuant to the Juvenile Act
than probation or a consent decree. Accordingly, it is proper for this Court
to consider the challenges raised by the Commonwealth on appeal
pertaining to the authority and discretion of the hearing judge to enter such
an Order and the rights of the Commonwealth.
The purpose of the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365, is as
(2) Consistent with the protection of the public
interest, to provide for children committing
delinquent acts programs of supervision, care and
rehabilitation which provide balanced attention to
the protection of the community, the imposition of
accountability for offenses committed and the
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development of competencies to enable children to
become responsible and productive members of the
42 Pa.C.S.A. § 6301, Short title and purposes of chapter (b) Purposes
(2) (emphasis added).
"Under the [Juvenile] Act, petitions may be disposed of in three ways:
by informal adjustment, 42 Pa.C.S.A. § 6323, by consent decree, 42
Pa.C.S.A. § 6340, or by hearing, 42 Pa.C.S.A. §§ 6336, 6341." In the
Interest of B.P.Y., 712 A.2d 769, 770 (Pa. Super. 1998). This statement
of law, however, must be qualified in that informal adjustment is only
available before a petition is filed or if the petition is dismissed for failure of
the Commonwealth to establish the charges alleged in the petition.
Following the BB gun incident, J.H.B. was placed under the terms of
informal adjustment. The Commonwealth argues that J.H.B. failed to abide
by the terms and conditions of the informal adjustment plan and,
consequently, his juvenile probation officer recommended that a delinquency
petition be filed. Once the petition was filed, the Commonwealth maintains
the pre-adjudicatory disposition of informal adjustment was no longer an
option available to the Court.
¶ 10 Juvenile probation officer Thomas Brady testified that an intake review
was performed on June 4, 1999. Informal supervision was instituted
pursuant to section 6323, supra, however, within two weeks, J.H.B. had run
away from home. Pursuant to the policy objectives of both the juvenile
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court and the district attorney's office, when a child is placed under an
informal adjustment program by the probation office or court, upon violation
of the conditions of that program, the policy requires that a formal petition
be filed and a hearing on the merits be held subject to the requirements of
the Juvenile Act, § 6334 Petition, § 6336 Conduct at hearings, § 6340
Consent decree, § 6341 Adjudication and § 6352 Disposition of a
delinquent. It was Brady's recommendation that J.H.B. "be taken under the
care of the Court as a delinquent boy . . ." (T.T., 9/3/99, at 9) (emphasis
added), which required an adjudication of delinquency pursuant to section
¶ 11 Following informal hearing and receipt of testimony from J.H.B., the
victims, the probation office and the Berks County Children Service worker,
the court concluded the proper disposition of the case was to impose an
Order of court supervision and place J.H.B. in the custody of his school coach
pursuant to the provision of the Juvenile Act governing informal adjustment.
¶ 12 The court made a finding based upon the admission of the appellee,
made in open court with his mother and counsel present, that he committed
the acts of simple assault and sale and use of air rifle. The probation officer
recommended appellee be taken under the care of the court as a delinquent
boy to reside with Ernest and Lydia Hamilton (T.T., 9/3/99, at 9). The public
defender representing the child requested he be placed under informal
supervision (T.T. at 10). Discussion then evolved about the utilization of a
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consent decree, to which the Commonwealth objected (T.T. at 11). The
Commonwealth's objection to the consent decree was based upon the fact
that the underlying incident involved the use of a weapon against two
persons and application of the balanced approach doctrine, which is
consistent with protection of the public interest. 42 Pa.C.S.A. § 6301(2).
¶ 13 Despite the Commonwealth's objection to entry of a consent decree,
the court ordered supervision of J.H.B. pursuant to the informal adjustment
provision of the Juvenile Act.
¶ 14 We agree with the Commonwealth. At the outset, we must
acknowledge the Juvenile Act is a procedural act, which encompasses the
entire statutory scope of the authority and discretion of the juvenile court to
exercise jurisdiction over children as defined by the act. There are inherent
powers embodied in the role and function of every judicial officer without
which the exercise of the office would be hampered. These are not a
substitute for or an escape from the clear statutory power and/or limitations
governing judicial activity. Absent jurisdiction to act, whether constitutional
or statutory, the court is without power to act, even where to do so appears
to be in the child's best interest.
¶ 15 In this case, the hearing judge ignored the clearly delineated scope of
his authority and discretion to create the instant disposition. However suited
to the needs of the juvenile the disposition may be, the statutory scheme for
the disposition selected precludes its use under the facts of this case.
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¶ 16 Pursuant to the Juvenile Act, court supervision and treatment of
delinquent children are divided into two categories, which may be
designated pre-petition (informal) and post-petition (informal and official).2
The first is governed by section 6323, Informal adjustment, which
(a) General rule.--
(1) Before a petition is filed, the probation
officer or other officer of the court designated
by it, subject to its direction, shall, in the case
of a dependent child where the jurisdiction of
the court is premised upon the provisions of
paragraph (1), (2), (3), (4), (5) or (7) of the
definition of "dependent child" in section 6302
(relating to definitions) and if otherwise
appropriate, refer the child and his parents to
any public or private social agency available for
assisting in the matter. Upon referral, the
agency shall indicate its willingness to accept
the child and shall report back to the referring
officer within three months concerning the
status of the referral.
2One of the traditional features of the juvenile court system is the case
screening process known as "intake." "Since the function of intake is to
send cases away from the court which would be within its jurisdiction, it
might more appropriately be called "out-take"[.]" Stanford J. Fox, Juvenile
Courts, The Nut Shell Series, 3rd Ed., Chapter IV, § 30, Intake and Diversion
(West Publishing Co. 1984), 141.
The intake function, essentially, has merged with the more recently
developed practice of diversion. "The intake official is usually required to
conduct some sort of inquiry or investigation before reaching a decision.
This may include a conference with the child, his parents and the person
making the complaint in order to determine if a result satisfactory to all the
parties can be reached (the case "adjusted" in common parlance) without a
formal petition invoking the jurisdiction of the court." Intake and Diversion,
supra at 143-144.
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(2) Similarly, the probation officer may in the
case of a delinquent child, or a dependent child
where the jurisdiction of the court is permitted
under paragraph (6) of the definition of
"dependent child" in section 6302, refer the
child and his parents to an agency for assisting
in the matter.
(3) The agency may return the referral to the
probation officer or other officer for further
informal adjustment if it is in the best interests
of the child.
(b) Counsel and advice.--Such social agencies and
the probation officer or other officer of the court may
give counsel and advice to the parties with a view to
an informal adjustment if it appears:
adjudication would be in the best interest of the
public and the child;
(2) the child and his parents, guardian, or
other custodian consent thereto with knowledge
that consent is not obligatory[.]
The second is controlled by section 6340.
§ 6340. Consent decree
(a) General rule.--At any time after the filing of
a petition and before the entry of an adjudication
order, the court may, on motion of the district
attorney or of counsel for the child, suspend the
proceedings, and continue the child under
supervision in his own home, under terms and
conditions negotiated with the probation service and
agreed to by all parties affected. The order of the
court continuing the child under supervision shall be
known as a consent decree.
(b) Objection.--Where the child or the district
attorney objects to a consent decree, the court shall
proceed to findings, adjudication and disposition.
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¶ 17 The Commonwealth objected to the court's use of informal adjustment
and now argues, pursuant to section 6340(b), the court was required to
proceed to findings, adjudication and disposition in light of the
¶ 18 It is helpful to analyze the purpose of the law as it developed as a
separate and distinct procedure for resolving antisocial or criminal behavior
of juveniles and in dealing with ancillary problems of neglect, deprivation or
ungovernable behavior. The Pennsylvania Supreme Court first addressed
the constitutionality of the Juvenile Act in Commonwealth v. Fisher, 213
Pa. 48 (1905).3 The Court emphasized application of the underlying
philosophy of parens patriae to save the child from the ordeal of trial in
criminal court and incarceration in penitentiaries. By implication, and later
by statutory direction, the primary thrust of juvenile law was reformation
and rehabilitation and not punishment. Experts from the beginning of the
twentieth century, the genesis of juvenile law and procedure, focused on
prevention and early intervention and initially encompassed children under
the age of 16. Initially, the 1903 law permitted trial of the child in criminal
3 Two years earlier, in Mansfield's Case, 22 Pa. Super. 224 (1903), the
Superior Court declared Pennsylvania's first Juvenile Act (the Act of May 21,
1901) unconstitutional. Consequently, Commonwealth v. Fisher, 213 Pa.
48 (1905), presented the first opportunity for the Pennsylvania Supreme
Court to review the Juvenile Act after a revised version was enacted by the
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court (courts of quarter sessions and oyer and terminer) for serious offenses
and certification to juvenile court for minor offenses or status offenses such
as truancy, running away or being ungovernable. It was not until 1933 that
juvenile court acquired plenary jurisdiction over juveniles, Act of June 2,
1933, which gave the court both original and exclusive jurisdiction over all
crimes, except murder, committed by children under 16. In 1939, the
Juvenile Act was amended, Act of June 15, 1939, expanding the jurisdiction
to children under the age of 18.
¶ 19 Beginning with the Act of 1933, supra, the jurisdiction of juvenile
court could be exercised informally by intake office adjustments or formally
by petition and court hearings. In neither case would the child acquire a
criminal record, which could be used against him as an adult in civil or
criminal proceedings. The Juvenile Act of 1933 underwent rewriting and
recodification by the Act of December 6, 1972, which itself has been
amended frequently. The Act of 1972 spelled out the specific procedures
and functions of informal adjustment and consent decree being considered
¶ 20 The logical distinction that flows from the two provisions is that
informal adjustment is a preliminary pre-petition procedure to provide
assistance, counseling and supervision, where the behavior is either socially
disruptive (but not criminal) or where the delinquency has not created major
or serious consequences. Informal adjustment invokes the court's social
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service and supervisory resources without implicating the court's formal and
coercive powers, including the power to commit the child to custody or
confinement. Whatever procedure is undertaken flows from the consent of
the child and his parent. If the program fails, the court is powerless to act
other than by proceeding formally by petition and/or detention in accordance
with the Juvenile Act, upon probable cause, and calling into play the full
authority and jurisdiction of the court. If, on the other hand, the program is
fulfilled, the case is closed with no official record.
¶ 21 The consent decree is a post-petition preliminary procedure used to
achieve the same goal as informal adjustment when the behavior is
delinquent, but not at the level necessarily requiring formal adjudication and
the full range of dispositions available to the juvenile court. Consent decrees
are implicated only after a petition has been filed and, as with A.R.D. in the
adult system, may be considered only when the child, the court and the
district attorney agree to its implementation. If the tripartite consensus
cannot be reached, the court must proceed to an adjudicatory hearing on
the merits of the petition followed by findings and formal disposition of the
case. If all parties agree, the court can construct a program for the child's
rehabilitation, not to include commitment or detention. Upon satisfactory
completion of the program, the petition is dismissed and no further action
may be pursued on the charges contained therein. Failure to complete the
program or involvement in additional delinquent or maladjusted behavior will
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result in the revival of the petition charges to be heard on their merits
followed by adjudication and disposition as they would have at the outset.
¶ 22 It is clear from the description of these activities derived from the
statute that 1) informal adjustment is not permitted to proceed after a
petition is filed, and 2) consent decrees may be implemented only after a
petition is filed. The legislature has constructed a carefully delineated and
measured process whereby treatment of juveniles by and through juvenile
court is based on the least detrimental and restrictive alternative available in
keeping with the child's behavior and needs. This case clearly falls within
the parameters of the two statutory procedures. Both procedures permit the
court or its representatives to escalate immediately the authority and
containment applied by the court when the program deteriorates or new
delinquent behavior is manifested.
¶ 23 In this case, the bar was crossed in two respects. First, the fact that
J.H.B. ran away after informal adjustment procedures had been instituted,
without petition, mandated that a petition be filed. Second, after the
petition was filed, the district attorney objected to a proposed consent
decree. Under each set of facts, there can be no return to a previous level.
Policy required a petition be filed once J.H.B. ran away and, once the petition
was filed and the district attorney objected to the consent decree, the
statute required the matter be heard on its merits followed by findings,
adjudication and disposition.
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¶ 24 In 1986, there was a significant amendment to section 6340. Prior
thereto, the court had the power to enter a consent decree over the
objection of the district attorney.4 Section 6340(b) now requires the court
to proceed on the petition to adjudication and disposition once objection is
¶ 25 There is no escape from this provision by circumvention or retreat into
the informal adjustment procedure. The legislative intent is indisputable in
providing either the consent decree as prescribed or hearing, adjudication
and disposition. We can do no less than follow the legislative mandate.
¶ 26 We are cognizant of the well-intentioned and thoughtful concerns of
the distinguished hearing judge who acted with the best interest of the child
in mind. We are unable, however, to alter or reconstruct legislation so
clearly designed to limit judicial discretion in this regard to support his
¶ 27 The Order of the court is vacated and the case is remanded for a
hearing, findings, adjudication and disposition in conformity with this
¶ 28 Jurisdiction relinquished.
¶ 29 Dissenting Opinion by Del Sole, J.
4 The previous language read: "[When] an objection is made by the district
attorney . . . the court shall, after considering the objections and reasons
therefor, proceed to determine whether it is appropriate to enter a consent
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COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
No. 1577 MDA 1999
Appeal from the Order in the Court of
Common Pleas of Berks County,
Criminal Division, No. 426-J-1999
BEFORE: CAVANAUGH, DEL SOLE and TAMILIA, JJ.
DISSENTING OPINION BY DEL SOLE, J.:
I agree with the Majority in concluding that 42 Pa.C.S.A. § 6323,
Informal adjustment, is only applicable before a petition is filed. I also
agree that 42 Pa.C.S.A. § 6340(b) requires the district attorney's consent
and that this matter is appealable.
However, I believe that the trial court's disposition is authorized and
supported by the record. J.H.B. admitted the delinquent acts. The trial
court found, on the record, that the acts were proven beyond a reasonable
doubt. N.T., 9/3/99, at 5. I would characterize this finding as a de jure
finding of delinquency pursuant to 42 Pa.C.S.A. § 6341(b). This section
Finding of delinquency. If the court finds on proof beyond a
reasonable doubt that the child committed the acts by reason of
which he is alleged to be delinquent it shall enter such a finding
on the record and it shall then proceed immediately or at a
postponed hearing, ... to hear evidence as to whether the child is
in need of treatment.
42 Pa.C.S.A. § 6341(b).
Accordingly, no procedural steps have been missed. The trial court,
after making the finding of delinquency, fashioned a disposition in
accordance with the provisions of 42 Pa.C.S.A. § 6352(a)(1) and
6351(a)(2)(i). Therefore, while the trial court improperly termed its
disposition an "informal adjustment," it was in fact a statutorily-sanctioned
remedy following an adjudication of delinquency. Accordingly, I would
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