Commonwealth v. B.D.G.

DISSENTING OPINION BY

ALLEN, J.:

¶ 1 I respectfully dissent. In this case, the Department of Public Welfare (“DPW”) originally paid the victim’s medical expenses in the amount of $26,635. The victim then settled her civil claim against B.D.G., executing a settlement agreement and general release of her cause of action. Following settlement of the victim’s civil claim against B.D.G., DPW was fully reimbursed, subrogating its expenditure from the victim’s settlement amount pursuant to a statutory lien.3 In a later juvenile proceeding, the trial court adjudicated B.D.G. delinquent and ordered him to pay $26,635 in restitution to the victim for medical expenses, based upon the sole fact that DPW subrogated this amount from the victim’s settlement award. Hence, the trial court essentially found that the victim was entitled to an additional $26,635, free and clear, in an attempt to recompense the victim for monies that DPW rightfully subrogated. As a practical matter, the trial court’s restitution order compensated the victim twice for identical medical expenses.

¶ 2 The dispositive issue in this case is whether 42 Pa.C.S. § 6352(a)(5) permits a trial court to enter an order of “restitution” that results in the unjust enrichment of the victim. Upon my review, I conclude that the plain language of 42 Pa.C.S. § 6352(a)(5) does not vest the trial court with the authority to enter a restitution order that provides the victim with double recovery for the same expenses. Therefore, from my perspective, the trial court imposed an illegal sentence when it ordered B.D.G. to pay $26,635 in medical expenses resulting in the unjust enrichment of the victim. Accordingly, I would vacate this portion of the trial court’s order. Because the Majority declines to reach this result, I must dissent.

¶ 3 Following a car accident, B.D.G., a seventeen-year-old, entered into a plea agreement with the Commonwealth and was adjudicated delinquent for committing three counts of reckless endangerment. On August 1, 2005, the trial court suspended B.D.G.’s driver’s license for eighteen months and ordered B.D.G. to be placed in a Youth Services Agency for twenty-nine days. The trial court further ordered B.D.G. to complete 100 hours of community service, write a letter of apology to the victims, and make restitution to the victims in an amount to be determined at a later date.

¶ 4 After conducting a hearing on February 22, 2006, the trial court ordered B.D.G. to pay a total of $29,439 in restitution to Emily Socha (“Socha”), one of the victims of the car accident. At the restitution hearing, Socha testified that a Commonwealth agency, DPW, paid $26,635 of *375her medical expenses. Socha later settled her civil claim against B.D.G., in exchange for $100,000, executing a general release of her entire cause of action. DPW then subrogated the $26,635 that it paid for Socha’s medical expenses from Socha’s settlement amount pursuant to a statutory lien. Although DPW originally paid So-cha’s medical bills and received reimbursement for its expenditure, the trial court ordered B.D.G. to pay restitution to Socha for subrogated medical expenses again in the amount of $26,685.

¶ 5 The trial court’s restitution order thus represents the third time that Socha, directly or indirectly, will receive compensation for the same medical expenses. This time, however, Socha, upon receiving the $26,635, will be at liberty to spend it as she deems fit. Consequently, the trial court’s restitution order took $26,635 in medical expenses — which Socha is no longer accountable for — and converted it into a benefit — an amount B.D.G. owes Socha for her unconditional use. To the extent the trial court ordered B.D.G. to pay $26,635 in medical expenses, I conclude that this amount constituted an illegal sentence because it resulted in the unjust enrichment of Socha. Consequently, I would vacate this portion of the trial court’s order.4

¶ 6 On appeal to this Court, B.D.G. contends, inter alia, that the trial court erred in imposing restitution because its order effectively reimbursed Socha for monies that DPW rightfully subrogated from the settlement amount. Brief for Appellant at 12-13. After review, I conclude that the trial court’s restitution order constituted an illegal sentence. A plain reading and interpretation of 42 Pa.C.S. § 6352(a)(5)’s term, “a reasonable amount of restitution,” compels my conclusion.

¶ 7 “[A]n order of restitution must be based upon statutory authority.” In re M.W., 555 Pa. 505, 725 A.2d 729, 731-32 (1999). Where an appellant’s challenge is directed to the trial court’s authority to impose restitution, it implicates the legality of the sentence as opposed to the discretionary aspects of the sentence. Id. at 731 n. 4. “If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated.” Commonwealth v. Stevenson, 850 A.2d 1268, 1271 (Pa.Super.2004) (en banc) (citation omitted). “Moreover, challenges to an illegal sentence can never be waived and may be reviewed sua sponte by this Court.” Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa.Super.2003) (en banc) (citation and internal quotation marks omitted).

¶ 8 In the juvenile context, restitution awards are governed by 42 Pa.C.S. § 6352(a)(5), which provides in pertinent part:

(a) GENERAL RULE. — If the child is found to be a delinquent child the court may make any of the following orders of disposition determined to be consistent with the protection of the public interest *376and best suited to the child’s treatment, supervision, rehabilitation, and welfare, which disposition shall, as appropriate to the individual circumstances of the child’s case, provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable the child to become a responsible and productive member of the community:
(5) Ordering payment by the child of reasonable amounts of money as fines, costs, fees or restitution as deemed appropriate as part of the plan of rehabilitation considering the nature of the acts committed and the earning capacity of the child, including a contribution to a restitution fund....

42 Pa.C.S. § 6352(a)(5) (emphasis added).

¶ 9 “Issues involving statutory interpretation present questions of law for which our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Leonberger, 932 A.2d 218, 222 (Pa.Super.2007) (citation omitted). “In construing a statute to determine its meaning, courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words.” Id. (citation omitted). Since there is a presumption that the General Assembly intended a statute to be effective, we must not read a section of a statute in isolation, but rather, should view it with reference to, and in light of, other sections of the statute. Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421, 439 (1994).

¶ 10 In Commonwealth v. Genovese, 450 Pa.Super. 105, 675 A.2d 331 (1996), this Court analyzed the concept of criminal restitution and defined the term “restitution” according to its ordinary legal and grammatical meaning:

Restitution ... is not a fine, but is an “equitable remedy under which a person is restored to his or her original position prior to loss or injury; [it is the] restoration of anything to its rightful owner [or] the act of making good or giving equivalent for any loss, damage or injury.”

Id. at 333 (citing BLACK’S LAW DICTIONARY 1313 (6th ed.1990)). On a routine basis, this Court has expressly approved the common-sense definition of restitution, stating that “[t]he payment of restitution ordered by the court cannot be in excess of the damage caused by the defendant.” Commonwealth v. Pappas, 845 A.2d 829, 842 (Pa.Super.2004). See, e.g., Commonwealth v. Dohner, 725 A.2d 822, 824 (Pa.Super.1999) (“The amount of a restitution order is limited by the loss or damages sustained as a direct result of defendant’s criminal conduct and by the amount supported by the record.”); Commonwealth v. Gerulis, 420 Pa.Super. 266, 616 A.2d 686, 698 (1992) (same); Commonwealth v. Balisteri, 329 Pa.Super. 148, 478 A.2d 5, 9 (1984) (same).

¶ 11 The above-mentioned interpretations of restitution are in accord with the definition found in a parallel provision of the Juvenile Act, 42 Pa.C.S. § 6352(a)(6), which permits the imposition of restitution “not in excess of actual damages caused by the child[J” 42 Pa.C.S. § 6352(a)(6). Utilizing these definitions and/or conceptual descriptions of restitution, I conclude that “reasonable restitution,” as that term exists in 42 Pa.C.S. § 6352(a)(5), cannot be construed as granting the trial court with the authority to enter an order that results in the double recovery of expenses.

¶ 12 It is the Commonwealth’s burden to prove its entitlement to restitution. See Commonwealth v. Boone, 862 A.2d 639, *377643 (Pa.Super.2004) (stating that the amount of restitution must be supported by the record and cannot be speculative or excessive). In light of Socha’s testimony at the restitution hearing, the trial court’s subsequent order did not direct B.D.G. to pay “restitution” in any sense of that word’s plain and ordinary meaning. So-cha’s testimony failed to establish that the $26,635 in medical expenses exceeded the amount of the settlement award or that the settlement award was otherwise insufficient to cover these expenses. Socha’s testimony instead established that she sought $26,635 in medical expenses because DPW subrogated this amount from her settlement award. Upon my review of the record, I conclude that there is no evidence to support a finding that at the time of the restitution hearing, Socha sustained a loss or damage for medical expenses in the amount of $26,635.

¶ 13 Here, the record indicates that out of the $26,635 in medical expenses, Socha did not suffer an out-of-pocket loss in the form of expenses paid, nor was she indebted with an outstanding legal obligation. DPW paid Socha’s medical expenses, and after Socha received her settlement amount, DPW was fully reimbursed and its subrogation rights satisfied. Therefore, any payment made by B.D.G. pursuant to the trial court’s restitution order would run to the sole benefit of Socha. This benefit, in turn, goes beyond restoring So-cha to her original position prior to injury and confers upon her monies to which she was not legally entitled. Stated another way, when Socha received her settlement award and DPW was reimbursed in full for paying Socha’s medical expenses, Socha was restored to her original position, because in the absence of the accident, she would not have incurred such expenses. Socha, however, was not thereafter entitled to an additional $26,635 in “medical expenses” for her own, unconditional use.5 Quite simply, Socha’s testimony at the restitution hearing established that she was already “made whole” in regards to these expenses.

¶ 14 Based upon this record, the trial court’s restitution order had the effect of unjustly enriching Socha, by allowing her, for all intents and purposes, to receive double recovery for the same medical expenses. Consequently, under the facts of this case, Socha will receive money in excess of the actual damages caused by B.D.G.; ie., as a result of B.D.G.’s conduct, Socha incurred medical expenses which are now converted into a measure of income. Given the express language of 42 Pa.C.S. § 6352(a)(5), which only permits the imposition of “a reasonable amount of restitution,” I conclude that the trial court lacked the statutory authority necessary to enter an order resulting in the double recovery of expenses and the unjust enrichment of Socha. On this basis, the trial court imposed an illegal sentence and its order granting $26,635 in restitution must be vacated.

¶ 15 My reading of 42 Pa.C.S. § 6352(a)(5) is buttressed by another statutory provision related to restitution. Although not at issue in this case, the mandatory restitution statute for criminal *378convictions, 18 Pa.C.S. § 1106(g), sheds light on this matter. In relevant part, 18 Pa.C.S. § 1106(g) states that a restitution order shall not debar a victim from later filing a civil suit “provided that any civil award shall be reduced by the amount paid under the criminal judgment.” 18 Pa.C.S. § 1106(g) (emphasis added). Ultimately, I believe that 18 Pa.C.S. § 1106(g) evidences our legislature’s clear intent that a victim of a crime should not obtain a monetary windfall and receive double recovery/duplicative damages through the operation of our civil and criminal justice systems. In interpreting a restitution provision similar to 18 Pa. C.S. § 1106(g), the Supreme Court of Florida observed:

[W]e note that section 775.089(8) contemplates the coexistence of criminal restitution and a civil recovery. The statute provides that the amount of restitution shall be set off against any civil recovery, reflecting the Legislature’s recognition that although the restitution obligation is primary, the victim should not receive a double recovery. Although section 775.089(8) assumes that restitution will precede a civil recovery ... the sequence is not determinative.... [T]he purpose of the statute is clear []: to prevent the victim from forcing the defendant to pay twice....

Kirby v. State, 863 So.2d 238, 243 (Fla.2003); see Fla. Stat. § 775.089(l)(a)(8) (“... An order of restitution hereunder will not bar any subsequent civil remedy or recovery, but the amount of such restitution shall be set off against any subsequent independent civil recovery.”). Therefore, in order to avoid an award of duplicative damages, I conclude that a civil settlement must be taken into consideration when determining the items, expenses, and amount of restitution to be paid under 42 Pa.C.S. § 6352(a)(5). See Kirby 863 So.2d at 244-45 (stating that in order to prevent double recovery, a civil settlement is a relevant factor in determining the amount of restitution). Since DPW paid Socha’s medical expenses and was reimbursed by subrogating its expenditure from Socha’s settlement award, any legal obligations in connection to these medical expenses were satisfied and/or extinguished. Taking into account Socha’s settlement award, the record demonstrated that B.D.G. paid Socha’s medical expenses in the amount of $26,635, and the trial court, by ordering B.D.G. to pay an additional $26,635, essentially compelled B.D.G. to pay Socha twice for the same medical expenses.

¶ 16 In light of the foregoing, I conclude that our legislature never intended the phrase, “a reasonable amount of restitution,” be interpreted as granting the trial court with the power, or means by which, to award a victim $53,270 in medical expense damages when that victim only incurred $26,635 in medical expenses. Because the trial court’s order awarded Socha double recovery for the same medical expenses, I conclude that the trial court transcended its statutory authority to order “a reasonable amount of restitution” under 42 Pa.C.S. § 6352(a)(5). See, e.g., U.S. v. Parsons, 141 F.3d 386, 393 (1st Cir.1998) (stating that a prior civil settlement will bar criminal restitution where there is indication that the settlement compensated the victim for a loss and the restitution order would result in double recovery); People v. Hoisington, 902 P.2d 887, 888 (Colo.App.1995) (stating that “while restitution is not intended as a substitute for a civil damages action, funds recovered by the victim in a civil proceeding prior to ... the award of restitution must be offset as required by [statute.]”). Cf., e.g., State v. Applegate, 266 Kan. 1072, 976 P.2d 936, 941 (1999) (concluding that trial court did not abuse *379its discretion in finding that a civil settlement fully compensated the victim’s losses and thus precluded the imposition of criminal restitution); State v. Howard, 163 Ariz. 47, 785 P.2d 1235, 1239 (App.1989) (affirming the trial court’s decision to reduce the amount of criminal restitution in view of a civil settlement because the purpose of restitution is to “make the victim whole, not to punish.”). The trial court, consequently, imposed an illegal sentence and I would vacate its dispositional order to the extent that it directed B.D.G. to pay $26,635 for medical expenses that DPW subrogated from Socha’s settlement award. In reaching my conclusion, I emphasize that besides restitution, there are a variety of alternatives that the trial court could employ in its dispositional order to aid in B.D.G.’s rehabilitation. See 42 Pa.C.S. § 6352(a)(l)-(6).

¶ 17 The Majority cites In re B.T.C., 868 A.2d 1203 (Pa.Super.2005), to support its conclusion that the trial court lawfully ordered B.D.G. to make restitution to Socha for medical expenses in the amount of $26,635. Majority Opinion and 371-72. In that case, a panel of this Court, relying exclusively on Commonwealth v. Kerr, 298 Pa.Super. 257, 444 A.2d 758 (1982), concluded that a trial court can order a juvenile to make restitution to a family for funeral expenses, despite the fact that the juvenile’s insurance company previously paid these expenses. In re B.T.C., 868 A.2d at 1205-06. I find that In re B.T.C. was erroneously decided and would overrule that case for two fundamental reasons.

¶ 18 First, In re B.T.C. misapprehended Kerr since that case merely stands for the proposition that payments made to a victim from the victim’s own insurance company cannot be credited in determining the amount of restitution. Kerr, 444 A.2d at 760. Thus, at its broadest interpretation, Kerr allows an order of restitution to encompass the subrogation rights of the victim’s insurer where the insurer pays the victim for a loss under an insurance contract.6 See id.; Commonwealth v. Mathis, 317 Pa.Super. 362, 464 A.2d 362, 367-68 (1983) (“Kerr raised the propriety of a restitution order where an insurance carrier stood to benefit through subrogation.”). Kerr does not mention, let alone suggest, that a victim is entitled to “double dip” his/her damages and receive duplicative payments on the same item or expense after the victim’s insurance carrier fulfills its subrogation rights. Consequently, In re B.T.C. is without a legal foundation and its holding expands Kerr’s doctrine to an unprecedented area of this Court’s jurisprudence. Second, In re B.T.C. expressly endorsed an order of restitution that was “duplicative of monies already paid to the victim’s family through a civil settlement” and implicitly approved of a theory of unjust enrichment as part of a juvenile’s restitution order. Id. at 1206. For the reasons stated supra, I conclude that In re B.T.C.’s holding is in direct contravention to the plain language of 42 Pa.C.S. § 6352(a)(5), which only provides for “a *380reasonable amount of restitution.” Therefore, since In re B.T.C. is incompatible with 42 Pa.C.S. § 6352(a)(5), I would overrule that case insofar as it holds that a trial court is vested with the statutory authority to award duplicative recovery.

¶ 19 For the above-stated reasons, I conclude that 42 Pa.C.S. § 6352(a)(5) does not authorize a trial court to order restitution to a victim for medical expenses, where DPW originally paid the expenses and later subrogated the amount owed from the victim’s settlement award. As such, I would vacate the trial court’s order to the extent that it directed B.D.G. to pay $26,635 in medical expenses, concluding that this portion of the order constituted an illegal sentence. I am unable to subscribe to the Majority’s reasoning on this issue. Hence, I respectfully dissent.

¶ 20 BENDER, BOWES, PANELLA, JJ., Join.

. Under statute, DPW has a right to subrogate the medical expenses it paid from the victim’s settlement amount through the imposition of a lien against the award. 62 P.S. § 1409(a)(7)©.

. After executing the settlement agreement, Socha incurred additional medical expenses in the amount of $2,804. In sharp contrast to the $26,635, Socha never received any form of compensation for these medical expenses and they were not paid by any source, including the settlement amount, an insurance company, and/or the DPW. Because the $2,804 in medical expenses represented Socha’s out-of-pocket loss, and were not covered under the settlement agreement, I conclude that B.D.G. is obligated to pay Socha this amount in order to restore Socha to her original position had the accident not occurred; that is, B.D.G. must pay Socha for the outstanding expense that she has incurred. As such, I would affirm the trial court’s order insofar as it directed B.D.G. to pay Socha $2,804 in medical expenses. My dissent is strictly limited to analyzing the $26,635 in medical expenses that were paid by DPW and later subrogated from Socha’s settlement award.

. Indeed, B.D.G. was obligated to compensate Socha for her medical expenses even though DPW originally paid these expenses. See Boudwin v. Yellow Cab Company, 410 Pa. 31, 188 A.2d 259 (1963); Beechwoods Flying Service, Inc. v. Al Hamilton Contracting Corp., 504 Pa. 618, 476 A.2d 350, 352 (1984) (stating that "the ‘collateral source’ rule was intended to avoid precluding a claimant from obtaining redress for his or her injury merely because coverage for the injury was provided by some collateral source, e.g. insurance.”). However, after DPW’s subrogation rights were satisfied, any further payment to Socha for the same medical expenses constitutes "double dipping.”

. On this note, Kerr simply enforces the rule "that damages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance!.]” Boudwin, 188 A.2d at 260 (citation omitted). See supra n. 3. The Majority’s reliance on 18 Pa.C.S. § 1106(c)(l)(i) is similarly misplaced, because this statutory section, in essence, codifies Kerr’s holding but adds the requirement that the defendant pay the victim's insurance company instead of the victim directly. Majority Opinion at 371-72. See 18 Pa.C.S. § 1106(c)(l)(i) (“The court shall not reduce a restitution award by any amount that the victim has received from an insurance company but shall order the defendant to pay any restitution ordered for loss previously compensated by an insurance company to the insurance company.’’) (emphasis added).