
    Commonwealth v. Proctor
    
      Samuel F. Bonavita, District Attorney, for plaintiff.
    
      Emily S. Stair, of Legal Services for Northwestern Pennsylvania, for defendant.
    January 29, 1976
   WOLFE, P. J.,

The Public Defender of Warren County has filed an application for an order directing defendant to reimburse Warren County for the value of services performed by him to the point where she retained private counsel.

Defendant has, through Legal Services for Northwestern Pennsylvania, filed preliminary objections to the petition raising the question of jurisdiction, a motion to strike, a motion for more specific pleading, a demurrer and lack of capacity to sue.

The Public Defender Act of December 2, 1968, P.L. 1144, 16P.S. §9960.8, providing for penalties and restitution, provides:

“(a) False affidavits and false statements made by any person for the purpose of securing counsel or services under the provisions of this act shall subject the persons making such false affidavits or statements to the penalties prescribed by law for perjury.
“(b) Any person who has been convicted of making a false affidavit or false statement for the purpose of securing counsel or services under this act shall make restitution as the court shall determine to the county and the Commonwealth of Pennsylvania of all moneys paid on the basis of the false affidavit or false statement.”

A fair reading of this section leaves no doubt an affiant who applies for the Public Defender on the grounds of indigency must be convicted of perjury as the act speaks in terms of conviction of making false affidavits or false statements.

In our opinion the proper procedure for the Commonwealth to follow if it desires to seek restitution from one who allegedly has sufficient assets but, nonetheless, falsely applies for the Public Defender on the grounds of indigency, is prosecution under section 4902 of the Crimes Code of December 2, 1972, P.L. 1068 (no. 334), 18 C.P.S.A. §4902, for perjury.

For this reason we enter the following:

ORDER

And now, January 29, 1976, the preliminary objections of the defendant are granted.  