J. S33006/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ESTATE OF LITE BELESKY, : No. 2218 EDA 2012

:

 Appellant :

Appeal from the Order Entered June 29, 2012,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0604741-2006

BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED DECEMBER 08, 2014

Appellant, the Estate of Lite Belesky (“the Estate”),1appeals the order 

enforcing a sentence of restitution by garnishing funds from a structured 

settlement of which the deceased defendant below was a beneficiary. 

Finding no error, we affirm.

The trial court’s opinion accurately related the factual and procedural 

history:

On February 8, 2007, [the deceased] was 

sentenced to 2 1/2 to 6 years incarceration, 8 years 

consecutive probation, and restitution in the amount 

of $168,319.03 after pleading guilty to theft by 

deception and criminal conspiracy arising out of a 

theft by deception scheme that [the deceased] and 

his mother, Janet Belesky, perpetrated against the 

complainant, 74 year old Jeanne Sherman, between 

 

1 The defendant in this criminal case, Lite Belesky, died during the pendency 

of this appeal, and the Estate was substituted to represent his interests.
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March 22, 2005 and February 22, 2006. In addition 

to the sentence, as a condition, the sentencing judge 

ordered that proceeds due [the deceased] from 

previous litigation were to be garnished for 

restitution, payable to the complainant or her estate 

in the event of her demise. To date, according to 

the motion, [the deceased] has paid $679.21 toward 

his restitution. The last payment was made on 

March 8, 2010 in the amount of $14.82. On 

March 30, 2012, the Commonwealth filed a motion 

for garnishment of [the deceased’s] $75,000 

structured settlement payment through Genworth 

Financial, Inc.

[The deceased] submitted a response 

conceding that this Court has jurisdiction over 

restitution, but, that because there is no statute 

specific to this situation, civil law should govern. He 

therefore argues that the garnishment of [the 

deceased’s] settlement funds is prohibited by the 

Structured Settlement Protection Act, 40 P.S. 

§4003(a). The Commonwealth responded with a 

memorandum of law opposing [the deceased’s] 

interpretation and arguing that the criminal court has 

jurisdiction over matters of restitution. On June 29, 

2012, following a hearing, and upon consideration of 

the submissions of both counsel, the record and case 

law, the Court granted the Commonwealth's motion 

and ordered that the $75,000.00 structured 

settlement payment due [the deceased] be placed 

into an escrow account pending appeal, instructing 

that no deposits, withdrawals, transfers or 

transactions other than interest accrual take place 

without a written order from the Court. This appeal 

followed.

Opinion, 12/31/12 at 1-2.

The Estate raises the following issues on appeal:

I. Is the [deceased] entitled to an arrest of 

judgment with regard to the Restitution By 

Garnishment Order where the Commonwealth 

failed to prove entitlement to such an Order 
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when the Commonwealth failed to prove that a 

structured settlement is exempt from 

garnishment; that a corpus emanating from a 

Minor’s Compromise can be garnished; and 

where there is a lack of jurisdiction to proceed 

in a criminal courtroom?

II. Is the [deceased] entitled to an arrest of 

judgment on the Order Directing Restitution 

via Garnishment, where the Order is not 

supported by any Pennsylvania statute or case 

law, and where the existing statutory laws 

would hold that such an Order is barred and 

unlawful?

III. Is the [deceased] entitled to an arrest of 

judgment and a quash of the garnishment 

ordered as the Court had no legal authority to 

order the garnishment to come from a fund 

which merely reimbursed the [appellant] for 

losses sustained?

The Estate’s brief at 3.

We begin our analysis with our standard of review:

“An appeal from an order of restitution based upon a 

claim that a restitution is unsupported by the record 

challenges the legality, rather than the discretionary 

aspects, of sentencing.” [Commonwealth v. 

Atanasio, 997 A.2d 1181 (Pa.Super.2010)], at 1183 

( citing Commonwealth v. Redman, 864 A.2d 566, 

569 (Pa.Super. 2004), appeal denied, 583 Pa. 661, 

875 A.2d 1074 (2005)). “When we address the 

legality of a sentence, our standard of review is 

plenary and is limited to determining whether the 

trial court erred as a matter of law.” 

Commonwealth v. Pombo, 26 A.3d 1155 

(Pa.Super. 2011) (citation omitted).

Commonwealth v. McKee, 38 A.3d 879, 881 (Pa.Super. 2012). Moreover, 

claims that restitution was entered without authority or without jurisdiction 
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likewise challenge the legality of the sentence. Commonwealth v. 

Dietrich, 970 A.2d 1131, 1133 (Pa. 2009).

The Estate first challenges the jurisdiction of the trial court to enter an 

order of garnishment. Essentially, it is arguing that the trial court, sitting as 

a criminal court, was without authority to enter a civil remedy of 

garnishment.

We disagree with the Estate’s underlying assumption that the court’s 

action here constituted a civil garnishment; rather, it constituted the 

enforcement of a criminal sentence of restitution. Garnishment was merely 

the terminology chosen by the Commonwealth in its motion, and 

subsequently employed by the trial court, undoubtedly because the action 

was similar to the civil proceeding of garnishment. However, in reality, the 

action of the trial court here was to order the seizure of the deceased’s 

assets in order to satisfy the sentence of restitution. Our statutes clearly 

authorize the criminal court to seize potential restitution assets:

(e) Preservation of assets subject to 

restitution.--Upon application of the 

Commonwealth, the court may enter a 

restraining order or injunction, require the 

execution of a satisfactory performance bond 

or take any other action to preserve the 

availability of property which may be necessary

to satisfy an anticipated restitution order under 

this section:
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42 Pa.C.S.A. § 9728(e), in pertinent part.2

Simply stated, the trial court’s action was not a civil garnishment 

proceeding, but simply a lawful seizure of restitution assets for which it had 

full jurisdiction to undertake. As noted by the Commonwealth, “restitution 

can only be enforced by the criminal court.” Commonwealth v. Pleger, 

934 A.2d 715, 720 (Pa.Super. 2007).

The Estate next argues that this transfer of funds violates the 

Structured Settlement Protection Act (“SSPA”), 40 P.S. §§ 4001-4009. 

Specifically, it indicates those provisions of the SSPA that require a petition 

by the payee of the structured settlement to transfer such funds and court 

approval of such transfer.

First, the court’s action here does not qualify as a “transfer” as defined 

under the SSPA:

“Transfer.” Any direct or indirect sale, assignment, 

pledge, hypothecation or other form of alienation, 

redirection or encumbrance made by a payee for 

consideration, provided, however, that this shall not 

apply to a blanket security agreement used to secure 

a loan originating from a Federal or State chartered 

lending institution. Any transfer made or agreed to 

under this act shall be considered to be a consumer 

transaction.

 

2 Although this statute is drafted in terms anticipating an award of 

restitution, we find that it also supports the same preservation actions 

following the award of restitution, as here.
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40 P.S. § 4002, in pertinent part. The transfer here was not for 

consideration but, rather, was a seizure of assets. Thus, it is not a transfer 

governed by the SSPA.

Second, the purpose of the SSPA clearly is to protect the injured 

beneficiaries of structured settlements from being preyed upon by 

unscrupulous parties who might try to obtain the beneficiary’s right to 

payment by an offer of inadequate consideration. See In re Benninger, 

357 B.R. 337, 351 (Bkrtcy.W.D.Pa. 2006). The SSPA was not intended to 

protect the assets of convicted criminals from being seized to give restitution 

to their injured victims.

Third, to the extent that the SSPA requires court approval of the 

“transfer,” the court below specifically approved the seizure of these funds.

Next, the Estate claims that pursuant to Pa.R.C.P., Rule 3123.1, 

42 Pa.C.S.A., it may claim an exemption from attachment of certain types of 

property which includes accident and disability insurance.3 The Rules of Civil 

Procedure have no authority whatsoever in a criminal proceeding. The 

Estate’s argument is again predicated on the initial confusion caused by the 

Commonwealth titling its original motion as one seeking garnishment. The 

motion actually constituted a motion to seize restitution assets under 

42 Pa.C.S.A. § 9728(e) and is a criminal rather than civil proceeding. The 

 

3 The deceased’s structured settlement apparently arose out of an insurance 

policy of which he was the beneficiary.
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Estate cannot rely upon a Rule of Civil Procedure to avoid the seizure of 

restitution assets in a criminal proceeding.

Finally, the Estate baldly asserts that the assets cannot be seized 

because they were compensatory damages intended to make the defendant 

whole. The Estate cites to no case or statute to support a finding that 

compensatory damages are not subject to seizure for restitution. “[W]aiver 

of an issue results when an appellant fails to properly develop an issue or 

cite to legal authority to support his contention in his appellate brief.” 

Commonwealth v. Cox, 72 A.3d 719, 721 n.3 (Pa.Super. 2013). 

Consequently, we regard this issue as waived.

Accordingly, having found no merit in the Estate’s arguments on 

appeal, we will affirm the order below.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/8/2014