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$41,637 RESTITUTION AWARD VACATED BECAUSE IT WAS NOT DIRECTLY RELATED TO THE CRIME OF HOME IMPROVEMENT FRAUD

The PA Superior Court has decided the case of Commonwealth v. Poplawski, No. 820 MDA 2016 (March 24, 2017) holding that the trial court erred in imposing an order of restitution in the amount of $41,637.00 for damages that were not a direct result of the crime for which Poplawski was convicted.

Poplawski was arrested and charged with theft by deception, deceptive or fraudulent business practices, and home improvement fraud for receiving advance payment for services that he failed to perform. Following a jury trial in November 2014, Poplawski was acquitted of the first two charges, but convicted of home improvement fraud. Specifically, the jury found him guilty of receiving advance payments of $2,000.00 or less for work he did not perform.

During a subsequent restitution hearing, the Commonwealth referred to the complainant’s trial testimony regarding the amount expended to correct work Poplawski had allegedly done. Additionally, the Commonwealth indicated that a contractor hired by the complainant had testified that he expended $41,637.00 to correct the work Poplawski had allegedly performed. During the restitution hearing, the trial court determined that the complainant had paid a second contractor $41,637.00 to complete Poplawski’s project after advancing payments to Poplawski. In doing so, the trial court noted that but for Poplawski’s actions, these payments would not have been made.

Poplawski appealed the restitution order, arguing that (1) there was no causal connection between the crime for which he was convicted and the amount of said restitution and (2) the amount of $41,6370.00 awarded by the trial court was speculative and not supported by the record.

The Superior Court first analyzed the crime for which Poplawski was convicted. It noted that he was acquitted of the first two counts charged. And, the crime for which he was convicted required, essentially, that he receive advance payment for services never performed. Specifically, the jury concluded that Poplawski had retained a deposit of $2,000.00 or less, and did not perform the work. However, Poplawski was acquitted of deceptive or fraudulent business practices by “delivering less than the represented quantity of any commodity or service.”

Although the trial court concluded that Poplawski owed the $41,637.00, the Superior Court concluded that it was unable to determine, based upon the record provided, whether the $41,637.00 was damages the jury either did not recognize or criminalize, or whether it was money the complainant would have had to expend to complete the project regardless of Poplawski’s involvement. What was clear to the Superior Court, however, was that Poplawski was acquitted of criminal liability with regard to the quantity or quality of his services.

Accordingly, the Superior Court concluded that the $41,637.00 awarded by the trial court was not a direct result of Poplawski’s criminal conduct, nor was it supported by the record.

Lastly, the Superior Court noted that the victim in this case was not without recourse. The Crimes Code specifically provides that an order of restitution does not prevent the recovery of additional funds through a civil lawsuit. However, the criminal case is not the appropriate avenue to recover restitution that is not a direct result of the defendant’s criminal conduct.

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/J-S91022-16o%20-%2010303923616592373.pdf?cb=1

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