J-S92025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN S. PLACEK

Appellant No. 729 WDA 2016

Appeal from the Judgment of Sentence April 21, 2016

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-SA-0000502-2015

BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.: FILED MAY 01, 2017

John S. Placek appeals from the April 21, 2016 judgment of sentence 

imposed by the Westmoreland County Court of Common Pleas following his 

conviction for harassment.1 We affirm in part and vacate in part.

This appeal arose from an altercation on September 4, 2015 between 

Placek and the victim, Kim Schacher, in which Placek shoved Schacher, 

slapped Schacher’s phone from his hand, and slammed Schacher’s arm in a 

metal door. On April 21, 2016, after a summary appeal trial, the trial court 

convicted Placek of one count of harassment and sentenced him to pay a 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2709(a)(1). 
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$200.00 fine and $233.91 in restitution. On May 16, 2016, Placek timely 

appealed to this Court.

Placek presents one question for our review: 

WHETHER THE TRIAL COURT ERRED IN ALLOWING AN 

INSURANCE DOCUMENT TO BE INTRODUCED TO 

ESTABLISH THE OUT OF POCKET EXPENSES OR MEDICAL 

BILLS INCURRED BY THE ALLEGED VICTIM AND IN 

ORDERING RESTITUTION IN THE AMOUNT OF $233.91 

BASED ON SUCH DOCUMENT[.]

Placek’s Br. at 4. 

An allegation that a restitution order is unsupported by the record is a 

challenge to the legality, rather than the discretionary aspects, of a 

sentence. Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa.Super. 

2010). The determination of whether the trial court imposed an illegal 

sentence is a question of law, and our standard of review is plenary. Id.

Section 1106 of the Crimes Code authorizes mandatory restitution as 

part of a defendant’s sentence. The statute provides that “[u]pon conviction 

for any crime . . . wherein the victim suffered personal injury directly 

resulting from the crime, the [defendant] shall be sentenced to make 

restitution in addition to the punishment described therefor.” 18 Pa.C.S. 

§ 1106(a). The statute further mandates that the trial “court shall order full 

restitution . . . [r]egardless of the current financial resources of the 

defendant, so as to provide the victim with the fullest compensation for the 

loss.” Id. § 1106(c)(1)(i).
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The Commonwealth bears the burden of proving its entitlement to 

restitution. Atanasio, 997 A.2d at 1183. The amount of restitution is 

limited by the loss or damages directly resulting “from the defendant’s 

criminal conduct and by the amount supported by the record.” 

Commonwealth v. Dohner, 725 A.2d 822, 824 (Pa. Super. 1999). 

Although restitution does not seek, by its essential nature, 

the compensation of the victim, the dollar value of the 

injury suffered by the victim as a result of the crime 

assists the court in calculating the appropriate amount of 

restitution. A restitution award must not exceed the 

victim’s losses. A sentencing court must consider the 

victim’s injuries, the victim’s request as presented by the 

district attorney and such other matters as the court 

deems appropriate. The court must also ensure that the 

record contains the factual basis for the appropriate 

amount of restitution. In that way, the record will support 

the sentence.

Commonwealth v. Pleger, 934 A.2d 715, 720 (Pa.Super. 2007) (internal 

citations omitted).

Here, the trial court’s restitution order was based solely on a 

September 11, 2015 explanation of benefits (“EOB”) issued to Schacher by 

his insurer, Anthem Blue Cross. See Cmwlth.’s Ex. 7 at 1. The EOB 

identifies the medical provider as MedExpress Urgent Care, PC 

(“MedExpress”) and the date of service as September 4, 2015. Id. The EOB 

provides, “It is your responsibility to pay: $233.91[.] It is not your 

responsibility to pay: $139.09.” Id. It also provides, “Member’s Medical 

Deductible Applied to Date: $233.91.” Id. A line at the bottom of the EOB 

states, “THIS IS NOT A BILL.” Id. (capitalization in original).
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At trial, Schacher testified that shortly after the altercation with 

Placek, he went to MedExpress to have his arm examined. According to 

Schacher, “[t]hey took X-rays and so forth, and said there was no fracture. 

And they gave me a prescription for medication and said wrap it and put ice 

on it.” N.T., 4/21/16, at 16. The Commonwealth then sought to introduce 

two documents: a treatment record from MedExpress and the September 

11, 2015 EOB. The following exchange occurred on the record:

[COMMONWEALTH]: Okay. If I could, Your Honor, have 

this marked as Commonwealth’s 6 and 7?

THE COURT: Which are?

[COMMONWEALTH]: This would be the medical [record] 

that stated that [Schacher] received treatment on 

[September] 4th at MedExpress, and this is a bill. 

Number 7 would be the bill.

THE COURT: All right. They may be marked. Do you 

have any objection to their admission?

[DEFENSE COUNSEL]: I have no objection to the actual 

medical record as corroborative that he went and 

somebody noted a contusion, but with respect to 

Number 7, it’s actually not a bill. It’s an insurance 

claim form. Again, that my problem here. I don’t even 

know what that – I mean, I could speculate that [it] 

represents possibly a co-pay or deductible, but it’s not a 

“bill” bill. It’s an insurance . . . summary kind of form.

. . .

THE COURT: I’m going to admit both of those, but admit 

7 subject to review as to its relevance.
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Id. at 16-17 (emphases added). The Commonwealth offered no further 

evidence regarding Schacher’s medical expenses, nor did it offer any 

testimony to explain the information on the EOB.

At the conclusion of the trial, after finding Placek guilty of harassment, 

the trial court stated, “I’m ordering that you pay a fine of $200.00, and that 

you pay medical restitution in the amount of $233.91.” Id. at 50. Defense 

counsel again objected:

[DEFENSE COUNSEL]: I object to that restitution 

order, Your Honor, just so you note it. That’s not a 

bill.

THE COURT: Your objection is noted, but the Exhibit 

Number 7 states, “It is your responsibility to pay $233.91.”

[DEFENSE COUNSEL]: Correct.

THE COURT: Based on that, I’m suggesting that – I’m 

finding that the victim has a legal responsibility to pay that 

amount.

. . .

[DEFENSE COUNSEL]: Okay, Your Honor.

And just to be clear, my objection is more than that 

that’s not a bill. My objection is there’s really no, like, 

testimony as to, you know, the relation of that document –

I think that’s Number 7 – to the document, Number 6, 

[it’s] a bunch of billing codes. My objection is not only 

that that document is not a bill, but the 

Commonwealth did not establish a $233.00 loss, 

Your Honor.

Id. at 50-51 (emphases added).

Based on our review of the record, we agree with Placek that the trial 

court erred in relying on the EOB in ordering restitution. First, the EOB 
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plainly states, “THIS IS NOT A BILL.” Cmwlth.’s Ex. 7 at 1. Because the 

EOB is not a bill, Schacher had no obligation to pay MedExpress based on 

the information in the EOB. Second, the EOB indicates only the insurer’s 

anticipated payment of benefits to MedExpress, not its actual payment. See 

id. (“[Your] local Blue Cross and/or Blue Shield plan is responsible for the 

payment of the claim. Because of this, actual payment to your provider 

might occur after you receive this [EOB].”) As is often the case with 

insurance claims, the amount indicated on an EOB as the patient’s potential 

responsibility may differ from the amount for which the provider ultimately 

bills the patient due to, among other reasons, the patient’s filing of an 

appeal or secondary insurance coverage. After the insurer (or insurers) 

processes the claim, the medical provider will bill the patient for the 

remaining balance, if any. For these reasons, we agree with Placek that the 

EOB is speculative regarding the medical expenses Schacher incurred as a 

result of his injury.

It is well settled that “[a]n award for restitution should not be 

speculative or excessive. The general rule is that if the record does not 

support the order of restitution[,] then such sentence should be vacated.” 

Commonwealth v. Balisteri, 478 A.2d 5, 9 (Pa.Super. 1984). 

Furthermore, the restitution statute “require[s] the Commonwealth to 

exercise due diligence to ascertain the amount of restitution prior to the time 
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of sentencing.” Commonwealth v. Ortiz, 854 A.2d 1280, 1283 (Pa.Super. 

2004) (en banc) (citing 18 Pa.C.S. §1106(c)(4)).

Here, the Commonwealth produced no evidence other than the EOB to 

support its request for restitution. The Commonwealth did not offer into 

evidence an invoice from MedExpress or a receipt or canceled check 

indicating that Schacher had paid $233.91 to MedExpress. Schacher 

presented no testimony about the amount he was billed by, or paid to, 

MedExpress. Absent competent evidence of Schacher’s out-of-pocket 

medical expenses, the Commonwealth failed to satisfy its burden of proving 

its entitlement to restitution. See Atanasio, 997 A.2d at 1183.2

Accordingly, because the restitution order is unsupported by the 

record, we vacate that portion of Placek’s judgment of sentence imposing 

restitution in the amount of $233.91. We affirm the remainder of Placek’s 

judgment of sentence.

Judgment of sentence affirmed in part and vacated in part. 

Jurisdiction relinquished.

____________________________________________

2

Placek does not dispute that MedExpress treated Schacher on 

September 4, 2015, nor does he challenge the validity of the EOB. Rather, 

Placek contends, and we agree, that the EOB alone does not prove 

Schacher’s out-of-pocket medical expenses.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/1/2017