*1 Here, jurisdiction the fund was within the confirming the court entered an order the because judgment award and entered conformity arbitration with order, 7342(b). Therefore, required by Pa.C.S. § argument that the fund is not within the Appellant’s juris court, diction of the because it was created as a result of procedures required by partner common law arbitration no merit. It ship agreement, persuasive has is even less partnership, recipient because the the fund created court, by and confirmed litigation party was proceedings. arbitration underlying therefore affirm the entered on We the order directing the of counsel fees from the common payment proceedings. fund created the arbitration
Superior Pennsylvania. Court of
Argued Dec. 1990. Decided Feb. *2 Harrisburg, appellant. K. Lydon, Colin Atty., Harrisburg, Dist. Wingert, Deputy Kathy G. Com., appellee. CIRILLQ, Judge, and JOHNSON and
Before President BROSKY, J.
BROSKY, Judge. from the of sentence appeals
Heather Harner1 to two counts of following guilty pleas the trial court Appellant children.2 was sen custody of interference with and ordered to period probation tenced to twelve-month husband, $14,351.48 in to her former John Motion for Modification of Restitution was Harner. Her denied, she to this court. appealed *3 trial erred claims on that the when
Appellant appeal (1) since “the pay subject it ordered her to sup- for inappropriate matter of the restitution claim was restitution”; and, (2) an order óf the trial court porting appellant possessed capabil- determine failed to whether Appellant’s restitution. Brief at 9. We vacate ity pay to to restitution and remand relating of sentence hearing resentencing for a and consistent to the trial court opinion. with this In and Harner a divorce.3
Appellant John obtained of their two children. custody Mr. Harner was awarded nine, children, and contin aged Mr. Harner and the eleven Appellant Dauphin County, Pennsylvania. to reside in ued order she custody to Louisiana. Pursuant to the relocated , in Dauphin to and remained periodically briefly travelled During in time with the children. County spend order June, 1989, and in she the children one such visit abducted filing Appellant since the of the instant criminal has remarried present charges against and name is Heather Williamson. her 2904(a). 2. 18 Pa.C.S. the date of the divorce.
3. The record does not indicate took them to Louisiana.4 transcript provided
The sole in the record on appeal is of appellant’s April guilty plea-sentencing hearing (hereinafter hearing”). referred to “the The hearing includes a guilty plea colloquy, comments prosecutor and defense counsel and the pronouncement of sentence.5 that, stated at
Appellant hearing “The state of Louisi ana took the kids in their protection because of the abuse N.T., 4/16/90, issue.” at 8. The record does not indicate legal the nature of the that ensued in proceedings Louisiana that, the prosecutor hearing but stated at the “There awas rather that Mr. in lengthy waged battle Harner the Louisi in ana Courts attempt recover children. Id. at The prosecutor 2-3. stated that Mr. Harner accumulated $6,800.00 in legal performed fees for work a firm.6 by law at 9. The prosecutor Id. also stated that Mr. Harner $1,000.00 in expended approximately legal fees Pennsyl $2,000.00 vania and that he spent approximately “trip (We expenses[.]” trips assume that these were to Louisi ana.) The prosecutor paid Id. also stated that Mr. Harner $1,000.00, approximately private investigator “to a who was looking the children Louisiana and to another $800 private investigator also The employed.” who was Id. forgoing testimony regarding was the entire Mr. Harner’s expenses precipitated that were crimes. by appellant’s $11,600.00
Although the enumerated prosecutor only Harner, expenses incurred Mr. he allegedly requested $14,- ordering appellant received sentence. 351.48 in Appellant legiti- restitution. did not contest the *4 macy request of the dollar amount of the Commonwealth’s Appellant guilty plea 4. averred at her that she believed that the being by why children were abused Mr. Harner and that is she them. abducted Although appellant during sentencing made brief two comments phase hearing testimony by any party. no of the there was other performed 6. The State in which these services were is not revealed to us. any type legal provided by 7. We are unaware of what of services were attorneys. court, trial I not Appellant for restitution. asked the “Can accumulated Mr. pay legal for the just Harner?]” [fees Id. at 9. first claims that the trial court erred
Appellant restitution since Mr. Harner’s ordering appellant not of the are expenses type pursu were that recoverable Although to an order of restitution. not framed as such ant her claim is that the of restitution by appellant, imposition illegal constituted an sentence.8 Our review of the relevant statutes and is an issue of first impression. caselaw indicates this Furthermore, regarding our extensive research criminal major jurisdictions at least three other failed cases any significantly reveal and statutes related to instant claim. appellant’s is a matter discretion of the
Sentencing within sound trial court and absent an abuse of discretion we will not Semuta, a sentence on appeal. disturb (1989). A.2d Pa.Super. states, in pertinent part, 18 Pa.C.S.
(a)
crime
rule.—Upon
any
General
conviction for
wherein
stolen,
has
been
converted
otherwise unlaw-
obtained,
fully
or its
decreased as a
substantially
value
crime,
direct result of the
or wherein
victim suffered
crime,
personal
resulting from the
injury directly
offender
sentenced to make restitution in addition
may be
punishment
to the
therefor.
prescribed
(c)
court.—In
Authority
determining
part
whether to order restitution as
of the sentence or as
...,
a condition of
the court:
probation
(1)
injury
Shall consider the extent
suffered
other
deems appropriate.
victim and such
matters as it
essentially
imposed
illegal
8. A claim that
the sentence
is
claim
possess jurisdiction
impose
the trial court did not
such a
Cannon,
sentence. Commonwealth v.
477 Definitions.—____ (h) personal property, of real or property.” Loss
“Injury instruments, value, or decrease its including negotiable from the crime. directly resulting harm[9] directly Actual ... injury.” bodily “Personal from the crime. resulting property, including real or
“Property.” Any
personal
instruments, of the victim.
negotiable
and
currency
9721(c) states,
order the
may
42 Pa.C.S.
“[T]he
§
his
criminal
compensate
the victim of
defendant
[or her]
damage
injury
conduct for the
or
that he sustained.”
impress upon
The
of restitution is to
purpose
loss
defendant
that her criminal conduct caused
victim’s
it
personal
responsibility
repair
and that
injury
v.
Commonwealth
possible.
the loss or
as far as
injury
Anderson,
Com
(1990);
299,
Although a determining whether analysis method of specific stolen, or otherwise “has converted been victim’s obtained, substantially decreased or its value unlawfully 1106(a), this crime[,]” 18 Pa.C.S. a direct result of the § dicta, Common- court, guidance has offered some meaning bodily of 18 Pa.C.S. harm” within the 9. "Actual disturbances, it does not but emotional or mental includes actual include Cannon, supra. suffering. pain Penrod, wealth v. A.2d 486 defendant in that The case caused a serious automobile *6 accident in which the victim’s automobile was demolished. accident, to the Subsequent party unknown third stole audiotapes from the victim’s disabled automobile. Our that, court stated “Given this ‘but for’ causation and the in time from proximateness theft, the accident to the we find of in would no abuse discretion the trial court’s restitu- Id., 1, 229, tion order.” at n. Pa.Superior Ct. 578 A.2d 490, Although at n. 1. the restitution issue was found to be Penrod, court, dicta, our in waived would have affirmed the restitution order directing the defendant to compensate the victim for the loss of audiotapes.
“The settled law of this Commonwealth is that attorneys’ fees are from an a party only recoverable adverse to cause statute, or provided clearly agreed when when to by parties.” Mines, Inc., Dept. Transp. v. Manor of 112, 122, (1989); Pa. 565 A.2d Chatham Commu nications, Inc. v. General Press Corporation, 463 Pa. In Angelo, Commonwealth v. (1981), Pa.D. & C.3d 795 the Monroe County Court of Pleas, Common to pursuant Communications, Chatham to supra, attorneys’ part declined award fees as portion of a sentence. Pursuant to Dept. Mines, Inc., v. Manor Transp. supra, find that the in ordering appel we trial court erred lant to make restitution for the fees attorneys’ incurred Mr. Harner. There is no statute provided for the payment attorneys’ situation, fees in the instant and Mr. appellant agree Harner and did not to reimbursement for said fees.10
We also find that the trial court had to authority appellant order to make restitution for Mr. Harner’s “trip Although appellant sentencing offered at Mr. Harner’s attor- fees, neys’ only already this was restitution had been ordered. after Therefore, prior agreement parties regard- there was no between the ing attorneys’ fees. expenses” private investigator fees.11 The value of Mr. Harner’s assets were substantially decreased as a direct result of appellant’s abduction of his children. He was compelled expend sums of money order to regain possession of his children. We believe that the “but for” causation analysis mentioned in dicta Commonwealth v. Penrod, supra, is the proper analysis employed when a court is determining whether victim suffered property loss as a direct result of a defendant’s crime. In the instant case, Mr. (cash, Harner’s assets had to be cash) sold in order to obtain would not have been substan tially decreased “but for” appellant’s actions in abducting the children and secreting Hence, them in Louisiana. instant factual situation is one in which a can properly impose restitution.
We appellant’s now turn to second issue. She avers that the trial court failed to determine pos whether she sessed the capability pay restitution.12 sentence,
Since
order of restitution is a
whether it is
imposed as a direct sentence or as a condition of proba
tion or parole,
it must
supported by
be
the record.
Among
things
the sentencing court must consider on
suffered,
the record are: the extent of the injury
see 18
1106(c)(1);
Pa.C.S.
the fact that the defendant’s action
caused the injury
it,
and that he will
pay
be able to
and the
type
payment—lump sum or installment—that
will best serve the needs of the
capabilities
victim and the
1106(c)(1).
defendant.
See
Pa.C.S. §
explain
why
generally
11. We will
in issue number two
the trial court
authority
expenses
had
improperly
to order restitution for these
but
issued such an order in the instant case.
Although appellant
sentencing
did not raise this claim at
inor
Motion for Modification of Restitution the claim is not waived. We
Balisteri, supra,
held in Commonwealth v.
that an order of restitution
supported by
illegal
which was not
the record constituted an
sentence.
issue____
illegality
"The
of a sentence of restitution is not a waivable
illegal
any
by
An
failure to file a
Reed,
sentence can be corrected at
time. It is not waived
petition modify
the sentence.”
510, 514-15,
(1988).
543 A.2d
Since
appellant
challenging
legality
of her sentence the issue is not
waived and we will address it.
Torres, supra,
Commonwealth v.
396 Pa.Superior Ct. at
580,
[Restitution must supported record, but be and the court must determine the damages loss or resulting from the conduct, defendant’s the amount of compensation the defendant can afford to and how such amount shall paid. be An award for restitution should specula- not be tive or excessive. There is no requirement reasons for ordering restitution set forth at sentenc- ing. [Citations omitted].
Commonwealth v. McLaughlin, Pa.Super. 277, 292,
The trial court in the instant case failed to with comply the aforementioned First, relevant statutory case law. there is no indication in the record that the trial court appellant’s considered ability to pay restitution. We must therefore remand to the trial court for a hearing to deter- appellant’s mine ability to pay.
Secondly, the trial court did not adequately determine the amount of expenses incurred Mr. Harner.13 It relied upon the prosecutor’s statement that Mr. spent Harner approximately $2,000.00 for “trip expenses.” N.T., 4/16/90, at 9. We are privy not to the location of these or the trips justification $2,000.00 for the figure. The trial court also relied upon the prosecutor’s statement that Mr. paid Harner $1,000.00, approximately “to a private investi gator who looking was for the children in Louisiana and *8 to private another investigator $800 who was also em ployed.” Id. The record does not indicate the location of or type of work performed by private latter investigator.
Third, the trial court ordered restitution in an amount that was several thousand higher dollars than the list of expenditures enumerated prosecutor. The record does not indicate the trial court’s rationale for the higher only focusing 13. We are “trip expenses” private on the investiga- already tor fees since we have determined that the trial court erred in awarding attorneys' to fees Mr. Harner. amount. We therefore also remand for a determination of the nature and amount of expenditures incurred Mr. Harner.
Once the trial court determines appellant’s ability to pay restitution and the nature and amount of expenditures incurred by Mr. Harner it may resentence appellant regard ing restitution.14
Judgment of relating sentence to restitution is vacated. Case remanded for hearing and resentencing consistent opinion. with this Jurisdiction relinquished.
JOHNSON, J., files a concurring and dissenting opinion.
JOHNSON, Judge, concurring and dissenting. I agree with my colleagues that the trial court erred ordering Harner, Heather (Mother), to make restitution for attorneys’ Harner, fees incurred by (Father). John I Henry also agree that the trial court failed to make an on-the- record determination of Mother’s ability to comply with the proposed failure, alone, order. This require would that we portion vacate that relating sentence to restitution.
Since I am unable to find any for the statutory authority imposition an order of restitution permit parent alleged expenses recover by private investigators billed incurred while I traveling, must dissent.
Since the judgment of sentence brought together an imposition of twelve months’ probation and an order of $14,351.48, restitution totalling and since I find that would none allowable, of the restitution is I would reverse order of restitution and remand for resentencing.
I firmly believe the facts of this case particular general cannot satisfy authorizing rule restitution. I therefore, am not surprised, by my colleagues’ inability this, find cases any or statutes in or “in at least three other disturbing appellant’s proba- 14. We are not twelve-month sentence of tion. *9 major jurisdictions” significantly related to Father’s claim in case. general this Where the rule is clearly inapplicable, I find it inappropriate upon to seize a causation analysis in bottomed “but for”-ness and only casually mentioned by way of footnote dicta in an earlier case.
When the words a statute are clear and free from all the letter of ambiguity, it is not to disregarded under the pretext of its pursuing spirit. 1921(b). 1 Pa.C.S. More- § over, all provisions penal of a statute are to be strictly 1928(b)(1). construed. 1 Pa.C.S. § The relevant statutory provision, 18 Pa.C.S. pro- § vides as follows: injuries 1106. Restitution person property
§ (a) General rule.—Upon conviction for crime any stolen, wherein has been converted or otherwise obtained, unlawfully or its value substantially decreased crime, a direct result of the or wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition punishment to the prescribed therefor.
Oi) Definitions.—As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Injury property.” Loss of real or personal proper- ty, including negotiable instruments, or in decrease its value, directly from resulting the crime.
“Restitution.” The return of the property of the vic- tim or payments cash or the equivalent pursu- thereof ant to an order of the court.
“Victim.” Any person, except offender, who suf- fered injuries person to his or property as a direct result of the crime.
Mother pleaded guilty two counts of interference with children, custody 18 Pa.C.S. 2904. The charges children, having stemmed from her taken her two in June having returned to home Louisiana *10 order. The existing Dauphin County custody violation of an restitution order here under review included amounts “ex- pended private investigators, trying for to lo- by [Father] children, fees, Penn- legal cate his for within Louisiana and and for to Louisiana.” sylvania, expenses trips Opinion, 7,1990. Warren dated and filed Morgan, Honorable G. June 1106(a), the rule set forth in su- general Under Section in restitution is authorized convictions “wherein pra, only stolen, has been converted or otherwise unlaw- obtained, substantially or its value decreased as fully majority crime.” The does not seek to direct result the loss, describing if in terms of analyze any, Father’s “stolen, claimed to be converted or otherwise “property” Rather, the asserts that the unlawfully majority obtained.” as substantially “value” of Father’s assets “were decreased a direct result of of his children.” The abduction [Mother’s] conclude, that these majority goes analysis, on to without substantially “assets not have been de- vague ... would in the children abducting creased ‘but for’ action [Mother’s] secreting them Louisiana.” the dicta in The reliance on majority’s 1, n. Penrod, 221, 229 n. (1990) reaching the soundness of misplaced. Without dicta, a demol- that it is clear that Penrod involved quite that, rule in general under the ished car and audiotapes and were 1106(a), tangible, specific “property” were both This, in value” or “stolen”. “substantially either decreased the decrease then, as to whether permit analysis would crime”, where in value was “as a direct result party unknown third criminal conduct of an post-accident N. stolen, being and whether Gerald tapes resulted law, respect was, in the “offender” with Penrod fact and utilized a panel The Penrod audiotapes. to the loss of the the waived slip regarding footnote to in its dicta It is issue, point by panel. on the any analysis without therefore, concluded panel to tell how impossible, Penrod could made restitution for the acts of an unknown, third party offender.
In the us, case now before we do not even have any identifiable “property” which restitution may be or- dered. The crime here is interference with custody of children. There is not the slightest suggestion that any- thing other than parties were, two children time, at any “stolen, converted or otherwise unlawfully obtained.” The majority is reduced to describing the imagined “property” “cash, or property that had to be sold in order to obtain cash.” We know not which. Since there is no “property” involved, I reject the majority’s analysis that finds that a party’s general, nonspecific “assets” may have their value “substantially decreased as a direct result of the crime.”
Any time that money paid is out services, for the assets from which the payment was decreased, derived are regard less of the reason or the cause for the payment. Here, Father elected to use his own resources to secure personal investigative services and to travel to another state in the course of seeking to locate his children. All of these payments were discretionary as well as voluntary. None of them arose as a “direct result” of Mother’s criminal acts. Commonwealth v. Galloway, 145, 302 Pa.Super. 448 Cf. (1982); A.2d 568 Mourar, Commonwealth v. 349 Pa.Super. 583, 504 (1986) A.2d 197 (Dissenting Opinion, Johnson, J.) vacated 517 Pa. 83, order reentering (1987), 1050 order affirming grant restitution and remanding of for resentencing, No. 1983, 3076 Philadelphia Pa.Super. Octo 18, ber
In Commonwealth v. Cooper, 351, 319 Pa.Super. 466 A.2d (1983), 195 we analyzed the case jurisdic law other tions and determined that “restitution is permissible only as to losses flowing from the conduct which the for defen dant has been held criminally accountable.” 319 Pa.Su per. 356, at (citations A.2d at 197 omitted, emphasis added). This is based upon the very sound rationale that process due of law is denied when the losses for which restitution has been imposed did not arise from the very This is the defendant was convicted. which offense 1106(a) loss of that the requirement reflected the § the directly result from crime. a us, court did not reach
In the the trial case before directly to Father had conclusion the losses awarded having from fled with resulted Mother’s “all of Rather, the court found that merely two children. the incurred costs stemmed from charges.” Opinion, the J., 1990, added). In a page (emphasis Morgan, June enough. 1 Pa.C.S. this is not proceeding, simply criminal here, 1928(b)(1). Where, endangered as no property § “losses” sought represent the to be deemed and amounts voluntary pay- more of cash nothing aggregate than personal made assets a parent ments from unrelated order, custody restitu- existing enforcement of an pursuing Anderson, v. Commonwealth not imposed. tion can be A.2d 639 Pa.Super. purports which portion
That of sentence beyond should reversed impose remaining portion of 1106(a). only of Since scope may it probation, year period sentence involves a two balancing it was well be believed ordering needs a restitution sum significant several from record. We cannot tell this foregoing incarceration. sentence, may we requires a case correction Where di- the sentence resentencing or amend either remand 354, 422 Eberts, rectly. *12 no (1980). I Since believe A.2d sentence, I would vacate the prosecution, on this authorized good on rely trial to the court remand case to amend the sentence of Parrish, v. upon remand.
528,
VANIA, agent Livolsi; Betler, for Peter J. and Albert W. litem, Trustees ad Laborers District Counsel of Western Penn sylvania Funds, Welfare and Pension The Construction In dustry Program Pennsylvania Fund, Advancement of Western and the Laborers District Counsel Western and its affiliated local unions MATTEI, Joseph Amidio Mattei and Domenic J. Mattei. Appeal of Amidio J. MATTEI and Domenic J. Mattei.
Superior Court of Pennsylvania.
Argued Oct. 1990. Decided Feb.