Com. v. B.D.G.

• Decision Date: 07 October 2008
• Docket Number: No. 444 MDA 2006.,444 MDA 2006.
• Citation: 959 A.2d 362,2008 PA Super 238
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. B.D.G., Appellant.
• Court: Pennsylvania Superior Court

959 A.2d 362

2008 PA Super 238

COMMONWEALTH of Pennsylvania, Appellee v. B.D.G., Appellant.

No. 444 MDA 2006.

Superior Court of Pennsylvania.

Argued February 21, 2008.

Filed October 7, 2008.

Scott A. Herlands, Scranton, for appellant.

Jason J. Legg, Asst. Dist. Atty., for Com., appellee.

BEFORE: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, BENDER, BOWES, GANTMAN, PANELLA, DONOHUE, and ALLEN, JJ.

OPINION BY ORIE MELVIN, J.:

¶ 1 In this appeal we consider whether the trial court abused its discretion in ordering Appellant, B.D.G., to make restitution in the amount of $29,439.00 pursuant to the Juvenile Act. 42 Pa.C.S.A. §§ 6301-6365. After review, we affirm.

¶ 2 The factual and procedural background of this juvenile proceeding may be summarized as follows. On December 12, 2004, Appellant, then 17 years old, was driving a Jaguar owned by his father and his father's company. While proceeding westbound on State Route 106 in Susquehanna County he approached another vehicle ahead of him also in the westbound lane. Appellant attempted to pass this vehicle by crossing over the double yellow line and into the eastbound lane at a curve in the roadway marked as a no passing zone. There he collided head on with an oncoming vehicle driven by Lornah Schulte. Ms. Schulte died as a result of her injuries, and the two passengers in her vehicle, her mother, Constance Schulte, and a family friend, Emily Socha, were seriously injured.

¶ 3 As a result of the investigation into the accident, the Commonwealth filed a delinquency petition against Appellant alleging the commission of the following delinquent acts: one count of homicide by motor vehicle, a felony of the third degree, under 75 Pa.C.S.A. § 3732(a); three counts of recklessly endangering another person (REAP), a misdemeanor of the second degree, under 18 Pa.C.S.A. § 2705; and six summary Vehicle Code violations. On August 1, 2005, Appellant entered into a plea agreement whereupon Appellant was adjudicated delinquent based upon his admission that he committed three counts of REAP (one for each of the victims), and he was ordered to be placed in Youth Services Agency for twenty-nine days, 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. A license suspension for a minimum of 18 months was also ordered. No appeal was taken from the August 1st dispositional order.

¶ 4 Ultimately, after discussing the matter with the District Attorney's Office, only Ms. Socha decided to seek restitution. On February 22, 2006, a restitution hearing was held wherein Lisa Vail, Appellant's Juvenile Probation Officer, Emily Socha, one of the victims, Kimberly Long, Ms. Socha's mother, Appellant, and his father, G.G., all testified. Ms. Vail testified that she had been supervising the juvenile for approximately 6 months. N.T. Restitution Hearing, 2/22/06, at 3. During the supervision, the juvenile was doing "very well" while attending his senior year of high school, was an excellent student and was accepted to attend the University of Scranton and was looking into other colleges. Id. at 3-4. She further testified that the juvenile had worked as a lifeguard and, after leaving that job, he was looking for other employment. Id. at 4. Ms. Vail also indicated that she was not aware of the juvenile having any impediments to obtaining and maintaining employment or any mental or physical limitations. Id. at 4-5.

¶ 5 Emily Socha testified that she suffered serious injuries that required hospitalization for four weeks after the accident, which resulted in substantial medical bills. Ms. Socha further testified that at the time of the hearing she was still experiencing physical difficulties as a result of her injuries in that her vision was poor as she could not see out of her left eye and she had a steel rod placed in her arm and that she continued to have difficulty with her strength in that arm. Id. at 11-12. Ms. Socha also indicated that the injury to her head resulted in medical restrictions that advised her to avoid any activities that risk contact to her skull for at least two more years. Despite her injuries, Ms. Socha was able to obtain employment at a local restaurant as a waitress earning $2.50 per hour plus tips. Ms. Socha also indicated that she was not presently attending college but had completed one semester before dropping out. Id. at 20-21.

¶ 6 She further indicated that the Department of Public Welfare (DPW) paid for most of her medical bills and placed a lien upon any civil recovery she might obtain. Also evidence was presented that the amount of the juvenile's insurance coverage was divided among the three victims, and Ms. Socha only received $100,000 in the civil settlement. Id. at 13. As part of that settlement, she had to pay $26,635.00 to satisfy DPW's lien and after paying her attorney fees, Ms. Socha testified that she received around $50,000 from the civil settlement. In addition, Ms. Socha also testified that there were other medical bills that were inadvertently not paid and that she was still being billed for them in the total amount of $2,804.00. Id. at 14-15.

¶ 7 Appellant testified that he was accepted to the University of Scranton and desired to attend college but would require student loans to do so and believed that he would not be able to obtain the necessary loans if ordered to pay restitution. However, he admitted that he had not even applied for any financial aid or completed his financial aid packet. Id. at 34. He further admitted that he had a cumulative average of 89 during his first marking period of his senior year but then contended that his grades were lower in the second marking period. Id. at 27-28. Appellant testified that he received a score of 1620 on his SAT and also applied to colleges in Florida and North Carolina but did not apply to any state-owned colleges in Pennsylvania, and he "didn't know" that a state-owned school would be substantially less expensive than a private school. Id. at 35-36. Appellant testified that he earned $6 per hour while he was working as a lifeguard. Id. at 33. His life guarding job ended because he had "differences with the boss." Id. at 37.

¶ 8 When questioned about his health, Appellant indicated that he was feeling "okay." Id. at 31. Appellant further explained that he suffered some torn cartilage in his one knee as a result of the accident. Despite his knee injury, Appellant was a member of his high school track and field team and participated in the hurdle event until he realized that his knee was too bad to continue. Id. at 32-33. Further the injury to his knee did not require him to wear any special braces, and there was no need for any physical therapy. Id. at 37. When given the option to have surgery to repair the damage to his knee, Appellant indicated that he opted out of any surgery because he was afraid. Id. at 38. It was also learned that Appellant was remorseful and had received counseling.

¶ 9 Appellant's father testified that at the time of the hearing he was working part-time at JCPenney earning $6.00 per hour, the financial position of his family was poor, and due to his own medical bills of about $10,000 to $12,000 he was contemplating filing for bankruptcy. Id. at 39, 45. Appellant's father indicated that he was previously employed as the national sales manager for a pharmaceutical marketing company but was fired shortly after the accident. Further, that despite his background in sales he has not been able to obtain a similar job. Id. at 42-43. He further testified that Appellant had changed after the accident. Id. at 40. As to helping with paying for college, he indicated that he could not afford to help and that he had paid for his own college education by borrowing money and expected his son to do the same. Id. at 41. Appellant's father was also of the belief that his son would be unable to obtain student loans in the event that he was ordered to pay restitution. Id.

¶ 10 At the conclusion of the hearing, the trial court entered an order directing Appellant to pay restitution to Ms. Socha in the amount of $29,439.00 (the amount of the reimbursement to DPW plus the amount of post-settlement medical expenses). Appellant filed a timely notice of appeal from the order on March 9, 2006.¹

¶ 11 Appellant frames the questions for our review as follows:

1. Whether the [trial] [c]ourt erred when it awarded [r]estitution by not taking into account the then juvenile's earning capacity and rehabilitative needs, nature of the offense, and the victim's current circumstances?

2. Whether the [trial] [c]ourt erred in determining civil liability and/or securing satisfaction of civil damages in awarding in excess of $29,000.00 against the then juvenile in a juvenile proceeding?

Appellant's Substitution Brief, at 3.

¶ 12 Our standard of review of dispositional orders in juvenile proceedings is well settled. "The Juvenile Act grants broad discretion to the court when determining an appropriate disposition. We will not disturb a disposition absent a manifest abuse of discretion." In re R.D.R., 876 A.2d 1009, 1013 (Pa.Super.2005) (internal citation omitted). Moreover, "[a] petition alleging that a child is delinquent must be disposed of in accordance with the Juvenile Act. Dispositions which are not set forth in the Act are beyond the power of the juvenile court." In re J.J., 848 A.2d 1014, 1016-1017 (Pa.Super.2004) (citation omitted).

Further, one of the purposes of the Juvenile Act is to hold children accountable for their behavior. Accordingly, the Juvenile Act authorizes the court to "order[] payment by the child of reasonable amounts of money as fines, costs or restitution as deemed appropriate as part of the plan of rehabilitation concerning the nature of the acts committed and the earning capacity of the child." 42 Pa.C.S.A. § 6352, Disposition of delinquent child, (a) General...