holding that statute defining “victim” as person suffering injuries “directly resulting from the crime” excluded insurer because its claim payment was not a loss but “merely a contractual obligation”
How later courts described this case
- holding that statute defining “victim” as person suffering injuries “directly resulting from the crime” excluded insurer because its claim payment was not a loss but “merely a contractual obligation”
- finding court’s re-reading of selected portions of testimony upon jury’s request in absence of appellant harmless error; although proper procedure calls for review in open court, appellant alleged no prejudice
- quoting, Commonwealth v. Fuqua, 267 Pa.Super. 504, 508, 407 A.2d 24, 26 (1979)
- “No findings were made concerning the amount of damages nor the ability to Appellant to pay restitution[,]” and as a result, a remand was necessary.
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Commonwealth v. Layhue
302 Pa.Super. 145, 448 A.2d 568, 577 (1982) (holding that statute defining “victim” as person suffering injuries “directly resulting from the crime” excluded insurer because its claim payment was not a loss but “merely a contractual obligation”), superseded by statute as stated in Commonwealth v. Layhue, 455 Pa.Super. 89, 687 A.2d 382, 384 (1996);
The opinion
*163 WIEAND, Judge,
concurring:
I agree with the majority’s determination that there was no trial error requiring the grant of a new trial. I concur also that the record does not support that part of the sentence which orders the appellant, James Patrick Galloway, to make restitution for the arson which he committed. However, I am unable to agree that an order of restitution must be based on a present, as opposed to a potential, financial ability to satisfy a sentence of restitution or that an order directing restitution to a subrogated insurance carrier is invalid. Therefore, I do not join in the majority opinion but concur in the result.
Authority for sentencing a convicted offender to make restitution is contained in Section 1106 of the Crimes Code, 18 Pa.C.S. § 1106, as follows:
§ 1106. Restitution for injuries to person or property
(a) General rule.—Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
(b) Condition of probation or parole.—Whenever restitution has been ordered pursuant to subsection (a) and the offender has been placed on probation or parole, his compliance with such order may be made a condition of such probation or parole.
(c) Authority of sentencing court.—In determining whether to order restitution as a part of the sentence or as a condition of probation or parole, the court:
(1) Shall consider the extent of injury suffered by the victim and such other matters as it deems appropriate.
(2) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just, provided that the period of time during which the offender is ordered to make restitution shall not *164 exceed the maximum term of imprisonment to which the offender could have been sentenced for the crime of which he was convicted.
(3) May at any time alter or amend any order of restitution made pursuant to this section providing, however, that the court state its reasons and conclusions as a matter of record for any change or amendment to any previous order. 1
We have previously held that an order of restitution is not an award of damages but a rehabilitative tool to impress “upon the offender the loss he has caused and his responsibility to repair that loss as far as it is possible to do so.” Commonwealth v. Erb, 286 Pa.Super. 65, 79 , 428 A.2d 574, 581 (1981); Commonwealth v. Fuqua, 267 Pa.Super. 504, 508 , 407 A.2d 24, 26 (1979). We have also held that a court’s authority to order restitution, whether as a direct sentence or as a condition of probation, is not affected by the happenstance of whether the victim carries insurance. Commonwealth v. Kerr, 298 Pa.Super. 257, 262 , 444 A.2d 758, 760 (1982). Indeed, we have said unequivocally that an offender “has no standing to question contractual or subrogation rights which govern disposition of moneys paid via restitution to the victim.” Commonwealth v. Kerr, supra, 298 Pa.Superior at 262, 444 A.2d at 761 . Why, then, should a sentenced offender have standing to object if the court recognizes the subrogation rights of the victim’s insurer and, with the consent of the victim, substitutes the insurer as the person to be reimbursed by the offender’s payment of restitution? Neither appellant nor the majority suggests any valid policy or practical reason for insisting that such payments be made only to the victim who thereafter must, by contract, deliver them to his insurer. Cf. People v. Bond, 99 Mich.App. 86 , 297 N.W.2d 620 (1980); Contra People v. Grago, 24 Misc.2d 739 , 204 N.Y.S.2d 774 (1960).
“Subrogation” has been defined as the “substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted suc *165 ceeds to the rights of the other in relation to the debt or claim . . . . ” Black’s Law Dictionary (5th ed. 1979). The Crimes Code clearly authorizes the court to order restitution, either as a condition of probation or as a direct sentence. Commonwealth v. Kerr, supra, 298 Pa.Superior at 259, 444 A.2d at 760 ; Commonwealth v. Erb, supra 286 Pa.Super. at 73 , 428 A.2d at 578 ; Commonwealth v. Fuqua, supra 267 Pa.Super. at 509 , 407 A.2d at 26 . It does not direct specifically to whom restitution payments are to be made. It does not require that restitution payments be made to the “victim.” It does not preclude payments of restitution, either expressly or by necessary implication, to an insurer who has compensated the victim of a criminal act and has been subrogated to his rights. In such cases, the court is no more a “collection agency” to recover a civil loss than when restitution is to be paid to an insured “victim” and he or she then delivers the same to the subrogated insurer.
An order directing payment to a subrogated insurer will not impair the rehabilitative effect of a sentence of restitution. Whether the restitution is paid to the insurer directly or whether it is paid indirectly via the insured victim, the sentence of restitution will serve its rehabilitative purpose of impressing upon the offender the loss he has caused and his responsibility to repair that loss.
For these reasons, I am unable to agree with the majority’s holding that a sentence is illegal if it directs that restitution be paid directly to a subrogated insurance carrier which has reimbursed the “victim” for his loss. See United States v. Follette, 32 F.Supp. 953 (E.D.Pa.1940).
An order of restitution is a sentence; and, therefore, it must be supported by the record. Commonwealth v. Seminko, 297 Pa.Super. 418, 420 , 443 A.2d 1192 -1193 (1982); Commonwealth v. Erb, supra 286 Pa.Super. at 81 , 428 A.2d at 582 ; Commonwealth v. Fuqua, supra 267 Pa.Super. at 508 , 407 A.2d at 27 . However, there is no rule of law which holds that appellant can be ordered to make restitution only if he has a present financial ability to make immediate restitution. In the instant case, appellant has been sentenced to serve a term of imprisonment; and, therefore, it is *166 unlikely that he will be able to make restitution payments before he is granted parole. He will in all probability be granted parole without again appearing before the sentencing court, for this decision must be made by the Pennsylvania Board of Probation and Parole. See Act of August 6, 1941, P.L. 861, § 1 et seq., as amended by Act of December 27, 1965, P.L. 1230, § 1 et seq., 61 P.S. § 331.1 et seq. Consequently, it is entirely proper for the sentencing court to include a restitution requirement at the time it imposes sentence. This is so even though the information regarding a defendant’s future earnings at that time may well be limited to such items as education, training, experience, prior employment record and anticipated future living expenses. Neither a sentence of imprisonment nor an inability to ascertain with accuracy the future earning capacity of the defendant should deter a trial court from ordering restitution as part of a sentence. 2 The rehabilitative goal to be achieved by a sentence of restitution will be well served if a defendant, during parole, is required to make reasonable sacrifices in order to make good the loss which he or she has caused. Commonwealth v. Wood, 300 Pa.Super. 463 , 446 A.2d 948 (1982).
. See also 42 Pa.C.S. § 9721(c).
.- Section 1106(a) of the Crimes Code, 18 Pa.C.S. § 1106(a) expressly permits both a sentence of imprisonment and a sentence of restitution. See also 42 Pa.C.S. § 9721(c).