Com. v. Solomon, P.

2021 Pa. Super. 43

• Court: Superior Court of Pennsylvania
• Decided: March 16, 2021
• Docket: 1407 MDA 2018
• Status: Published

Opinion

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2021 PA Super 43

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PATRICK SEISIRO SOLOMON : : Appellant : No. 1407 MDA 2018

Appeal from the Order Entered July 23, 2018 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0001122-2018

BEFORE: BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.

DISSENTING OPINION BY DUBOW, J.: FILED MARCH 16, 2021

It is well established that the purpose of restitution is to fully

compensate a victim for the loss a defendant caused a victim.

Commonwealth v. Genovese, 675 A.2d 331, 335 (Pa. Super. 1996). In this

case, Appellant stole coins from the Victim and the restitution award should

reflect the value of those coins when Appellant stole them.

At the restitution hearing, the Commonwealth did not present any

expert testimony about the amount at which a willing buyer and a willing seller

would value the coins. Rather, the Commonwealth only presented the

testimony of the Victim, who testified about the sale prices from eBay of coins

that are similar to the ones that Appellant stole. Tr. Ct. Op. at 2. The Victim

also testified about the purchase prices that he paid for the coins acquired

over many years. Id. The trial court based the restitution amount on the J-E02005-20

Victim’s purchase prices even though the purchase prices did not reflect the

value of the coins on the day Appellant stole them. The Majority agrees with

the trial court’s methodology of using the purchase price to determine

restitution. Maj. Op. At 21.

The trial court used the purchase price because it found that the use of

eBay sales did not reflect the fact that if Appellant had not stolen the coins,

Appellant could have sold the coins at a more financially advantageous time

and received more for the coins. Tr. Ct. Op. At 3-4. In other words, the trial

court acknowledged that the use of the eBay sales for an involuntary transfer

did not fully compensate the Victim because the involuntariness of the transfer

deprived the Victim of selling the coins at the most financially advantageous

time. The Majority Opinion echoes this concern. Majority Opinion at 20-21.

I agree with this concern.1 I disagree, however, with using the purchase

price of the coins as the appropriate methodology to determine the Victim’s

loss. I would instead use the methodology that courts have been using to

value property in eminent domain proceedings. A theft of property and an

eminent domain proceeding both involve the involuntary transfer of property

on a particular day.

In an eminent domain proceeding, the court awards the property owner

compensation for the involuntary loss of the property by determining the fair

market value of the property on the date of the taking. The fair market value ____________________________________________

1This is the reason I reject Appellant’s position that the trial court should have determined the restitution amount to be $55,600.

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includes in its calculation a price that is high enough so that it is reasonable

to assume that the seller would sell on that particular day. In other words, the

price that a “willing seller” would pay for the property on a particular day. The

Superior Court outlined this concept as follows:

The guiding principle of just compensation under the takings clause of the Fifth Amendment is that the owner of the condemned property “must be made whole but is not entitled to more.” U.S. v. 564.54 Acres of Land, 441 U.S. 506, 516, (1979) (citation omitted). In order to satisfy the need for a relatively objective rule concerning just compensation for a taking, the United States Supreme Court has employed the concept of fair market value. 564.54 Acres of Land, 441 U.S. at 511, 99 S.Ct. 1854. “Under this standard, the owner is entitled to receive what a willing buyer would pay in cash to a willing seller at the time of the taking.” Id.

Adelphia Cablevision Associates of Radnor, L.P. v. University City

Housing Co., 755 A.2d 703, 713 (Pa. Super. 2000) (emphasis added).

The determination of the value of the coins and, thus, the amount of

restitution that Appellant should pay, should be based on the fair market value

on the date of the theft. Included in this determination is the price for which

a reasonable seller would have been willing to sell the coins on the day of the

theft. The Victim’s testimony about sales on eBay does not reflect the concept

of a “willing buyer” and a “willing seller.” Rather, it represented an average of

sales, which is merely one factor that an appraiser uses and extrapolates from

to determine the fair market value of property.

Without expert testimony from an appraiser who can calculate the price

at which a willing seller would sell and a willing buyer would purchase the

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coins, the trial court cannot determine the amount that will fully compensate

the Victim.

Additionally, I am concerned with the Majority’s acceptance of using the

purchase price of the coins to determine the amount necessary to compensate

the Victim fully for his loss. The Victim had purchased the coins years earlier

and the trial court, in fact, found that the value of the coins fluctuated over

time. As a result, the purchase price is not a reliable measure of the Victim’s

actual loss on the date of the theft. At a minimum, the Victim will not be

compensated for those coins that appreciated in value.

The practical implications of the Majority’s holding is that a victim will

never be fully compensated if the defendant has stolen an item that

appreciates in value. If a victim may only recover the purchase price of the

item stolen and the item appreciates in value, the victim will only be partially

compensated for his loss.

Since the trial court must value a victim’s loss at the time of the crime

and the trial court in this case valued the loss based on the purchase price

that reflects a value at a much earlier time, I would find that the trial court

abused its discretion by valuing the coins according to their purchase price. I

would reverse the decision of the trial court and remand for a new hearing. At

a new hearing, the parties should present expert testimony that reflects the

involuntary nature of the theft of the coins and the value of the coins based

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upon the Victim being a “willing seller” transacting with a “willing buyer” on

the date of the theft.

Judge Lazarus joins the dissenting opinion.

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