author: JOHNSON, Judge:

text:
    628 A.2d 880
    AMERICAN STATES INSURANCE COMPANY, a Corporation v. MARYLAND CASUALTY COMPANY, a Corporation, Appellant. AMERICAN STATES INSURANCE COMPANY, a Corporation, Appellant, v. MARYLAND CASUALTY COMPANY, a Corporation.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1993.
    Filed July 21, 1993.

      Bernard J. McAuley, Pittsburgh, for Maryland Cas.
    Louis Anstandig, Pittsburgh, for American State Ins.
    Before KELLY, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

In this action, we are asked to determine whether American States Insurance Company, an umbrella insurer, may maintain an action for bad faith grounded on equitable subrogation against Maryland Casualty Company, the primary insurer. Concluding that an umbrella insurer, in breach of its duty to defend, may not maintain an action for bad faith against the primary insurer based on equitable subrogation, we affirm.

American States Insurance Company brought this action against Maryland Casualty Company alleging bad faith in the defense, negotiation and settlement of the underlying personal injury action captioned Stiles v. The Pennsylvania Rural Electric Association, Docketed at No. 3278 of 1979 in the Court of Common Pleas of Westmoreland County, Pennsylvania.

On July 18, 1978, Benjamin Stiles, a lineman for Southwest Central Rural Electric Cooperative Corporation, was injured when a co-worker, in the mistaken belief that the lines were clear, energized the line which Stiles was installing. Stiles suffered electrical burns to the lower extremities, ultimately requiring amputation of both legs. Stiles sued the Pennsylvania Rural Electric Association (PREA), a non-profit trade association which provided safety training and instruction materials to members of the trade association including Stiles’ employer. Stiles alleged that PREA was negligent in failing to provide adequate safety training and/or instruction to the employees of the Southwest Central Rural Electric Cooperative. Stiles further alleged that PREA’s negligence was the proximate cause of his injuries, asserting that PREA’s negligence in failing to provide adequate safety training and/or instruction was the sole cause of his injuries.

At the time of Stiles’ injury, three separate PREA insurance policies potentially applied to his claim: (1) A one million dollar three-year multi-peril policy providing bodily-injury and property-damage liability coverage issued by Maryland Casualty on April 15, 1977. The Maryland Casualty policy contained a Professional Liability Exclusion Endorsement which excluded “bodily injury or property damage [sustained] due to the rendering or the failure to render any professional service.” (2) An American States umbrella liability policy issued to PREA on April 18, 1978, with bodily injury and property damage liability limits of four million dollars. Under the umbrella policy, American States agreed to indemnify PREA for losses in excess of those claims covered by the Maryland Casualty policy. For the claims involving professional negligence, not covered by the Maryland Casualty policy, American States agreed to provide primary coverage and a defense to PREA. This last provision is known as a “drop down” clause. (3) An American States three year comprehensive liability policy issued on March 18, 1978 to Allegheny Electric Co-op., Inc. (AEC), a PREA subsidiary, with bodily injury and property damage liability in the amount of one million dollars.

Maryland Casualty, upon notice of the Stiles’ suit, informed PREA that it would deny coverage based on the professional service exclusion in its policy. American States, however, refused to defend PREA and denied the applicability of the drop-down provision in its policy. American States took the position that its responsibility was limited to excess coverage on the Maryland Casualty policy. During Stiles’ lawsuit, Maryland Casualty was unaware of the AEC policy and consequently did not seek the participation of American States in the defense of PREA on the basis of the AEC policy. PREA filed a declaratory judgment action in the United States District Court for the Middle District of Pennsylvania against both American States and Maryland Casualty, which was subsequently withdrawn, alleging that either one or both insurers owed it a defense. Maryland Casualty then agreed to defend PREA in the Stiles’ lawsuit, subject to a nonwaiver agreement, and Maryland Casualty did defend PREA until Stiles’ lawsuit was settled following the jury verdict.

The Stiles’ proceedings were monitored by American States through counsel specifically employed for that purpose. However, during the Stiles’ lawsuit, American States refused to participate in PREA’s defense, even though American States and Maryland Casualty had, on occasion, discussed, but never resolved, the possibility of a joint settlement offer. On July 21,1980, Stiles’ counsel made a written settlement demand for one million dollars to Maryland Casualty. Following the rejection of this demand, American States’ representatives were present during an ensuing pre-trial conference at which Stiles’ settlement demand for three million dollars was discussed and . also rejected.

On May 3, 1982, the first day of trial in the Stiles’ action, the court permitted Stiles to orally amend his complaint to include allegations of negligent hiring and negligent supervision against PREA. On May 12, 1982, the jury returned a verdict in favor of Stiles for $7,500,000. While post-trial motions were pending, the Stiles’ lawsuit was settled for five million dollars. American States paid $3,073,300 of the settlement and Maryland Casualty Company paid the balance, $1,926,700.

Subsequent to the Stiles’ settlement, American States filed this action against Maryland Casualty alleging bad faith in the defense, negotiation and settlement of the Stiles’ claim. On May 2, 1989, on cross-motions for partial summary judgment, a partial summary judgment was entered for American States. The trial court determined that since the professional service exclusion was inapplicable, Maryland Casualty’s policy covered Stiles’ claims against PREA. Following the trial court’s refusal to certify the issue for an interlocutory appeal, this Court denied Maryland Casualty’s Petition for Review on December 5, 1989.

After the denial of the Petition for Review, both American States and Maryland Casualty filed cross-motions for summary judgment on the remaining legal issues. On May 22, 1991, the trial court issued an Opinion and Order holding that under the terms of its umbrella policy, American States had a duty to defend PREA in the Stiles’ lawsuit until it could confine the Stiles’ claim to a recovery that was outside the scope of the “drop down” provision of the umbrella policy. The trial court also concluded that the AEC policy did not apply to the Stiles’ claim and therefore, American States had no duty to defend PREA under the AEC policy.

On October 22, 1991, the trial court issued a Supplemental Opinion and Order affirming its earlier determination but concluding that American States had a duty to defend PREA in the underlying lawsuit pursuant to the terms of its umbrella policy. The trial court also granted partial summary judgment in favor of Maryland Casualty in accordance with its May 22, 1991 Opinion. Observing that American States had presumed that it was only an excess liability carrier, the trial court ordered the American States’ claim against Maryland Casualty to be dismissed unless American States could establish either (i) that it confined all the Stiles’ claims to a recovery outside the scope of the drop down provision of its umbrella policy or (ii) that it was involved in the defense of PREA in the Stiles’ lawsuit. In addition, after consideration of the Maryland Casualty exceptions, the trial court permitted Maryland Casualty to raise a defense based on the AEC policy issued by American States if Maryland Casualty could prove that PREA was an additional named insured on the AEC policy.

On April 13, 1992, the trial court granted Maryland Casualty’s Motion for Nonsuit, American States having failed to establish that it had confined all the Stiles’ claims to a recovery outside the scope of the drop down provision of its umbrella policy or that it was involved in the defense of PREA in the Stiles’ lawsuit. On July 13, 1992, the Honorable R. Stanton Wettick, Jr., of the Court of Common Pleas of Allegheny County dismissed the post-trial motions of both parties and entered final judgments, dismissing American States’ bad faith claim against Maryland Casualty as well as dismissing Maryland Casualty’s counterclaim against American States. This appeal followed.

We are initially presented with the direct appeal of American States at No. 01255 Pittsburgh 1992, and its cross-appeal at No. 01291 Pittsburgh 1992. American States argues that the trial court erred in: (1) ruling that American States had a duty under its umbrella policy to defend PREA in the Stiles’ lawsuit; (2) placing the burden of proof on American States to show that the Stiles’ claims were outside the scope of its drop down provision or proving that American States participated in the defense of PREA; and, (3) making certain evidentiary rulings during the Maryland Casualty counterclaim. Maryland Casualty in its cross-appeal at No. 01241 Pittsburgh 1992, contends that the trial court erred in finding that the AEC policy was inapplicable to the claims asserted against PREA in the underlying lawsuit and dismissing its counterclaim.

I. Appeal by American States Insurance Company at No. 01255 Pittsburgh 1992

This Court’s scope of review of a grant of summary judgment is plenary. Briggs v. Erie Insurance Group, 406 Pa.Super. 560, 594 A.2d 761 (1991). In reviewing an order granting a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. Dorohovich v. West American Insurance Co., 403 Pa.Super. 412, 589 A.2d 252 (1991). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Moreover, in summary judgment proceedings, it is not the court’s function to determine the facts, but only to determine if an issue of material fact exists. Godlewski v. Pars Manufacturing Co., 408 Pa.Super. 425, 597 A.2d 106 (1991). Summary judgment should only be granted in those cases which are free and clear from doubt. Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983).

Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). Under this standard, a reviewing court should overturn the trial court’s grant of a motion for summary judgment where there is an error of law. Peffer v. Penn 21 Associates, 406 Pa.Super. 460, 594 A.2d 711 (1991).

The construction of a writing such as a policy of insurance is a question of law over which, as an appellate court, we need not defer to the findings of the trial court. United Services Auto. Assn. v. Elitzky, 358 Pa.Super. 362, 368, 517 A.2d 982, 985 (1986). The principles governing the interpretation of an insurance contract are well-settled:

The task of interpreting a contract is generally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language is clear and unambiguous, a court is required to give effect to that language.

Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 505, 469 A.2d 563, 566 (1984) (citations omitted).

In the present case, PREA held dual insurance coverage: a general liability policy from Maryland Casualty and an umbrella policy from American States. Typically, an umbrella carrier agrees to provide not only excess or umbrella coverage ‘ on claims within the ambit of the insured’s general liability policy, but also primary coverage for those claims not included in the insured’s basic general liability coverage. Appleman, Insurance Law & Practice § 4909.85.

Initially, American States argues that the trial court erred in ruling that it had a duty under its umbrella policy to defend PREA in the Stiles’ lawsuit. We disagree. The clause in the American States umbrella policy, in pertinent part, provides:

With respect to any occurrence not covered by an underlying policy listed in Schedule A hereof or any other underlying policy collectible by the Insured, but covered by the terms and conditions of this policy except for the amount of retained limits specified in Item 3(c) of the declarations, the company shall:
(a) defend any suit against the Insured alleging such injury or destruction and seeking damages on account thereof, even if the suit is groundless, false or fraudulent, but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient.

Schedule A of the American States Policy lists Maryland Casualty's multi-peril policy, No. SM 37351935 as an underlying policy. The Maryland Casualty policy provided coverage for losses resulting from bodily injury or property damage with the exception of a Professional Liability Exclusion Endorsement which “does not apply to bodily injury or property damage [sustained] due to the rendering or the failure to render any professional service.” The American States’ umbrella policy, on the other hand, did not exclude such damages but provided primary coverage for those areas not included in the Maryland Casualty underlying policy. Based on this, the trial court determined that Maryland Casualty was the primary insurer for claims not involving professional negligence, while American States was the primary carrier for any claims involving professional negligence. Trial Court Opinion, dated 10/22/91 at 2. It was from this starting point that the trial court analyzed the duty of American States, if any, to defend PREA in the underlying lawsuit.

The trial court determined that American States owed a defense to PREA for reasons of public policy. Trial Court Opinion, dated May 22, 1991, at 17-20; Trial Court Opinion, dated October 22, 1991, at 2-7. While we do not reject the public policy rationale set forth by the trial court, the appropriate standard must, nonetheless, be applied. As Judge Aldisert noted in Pacific Indemnity Co. v. Linn, 766 F.2d 754 (C.A. 3, 1985):

Under Pennsylvania law, an insurance company is obligated to defend an insured whenever the complaint filed by the injured party may potentially come within the policy’s coverage. Gedeon v. State Farm Mutual Automobile Insurance Co., 410 Pa. 55, 58, 188 A.2d 320, 321-22 (1963); Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959); Wilson v. Maryland Casualty Co., 377 Pa. 588, 105 A.2d 304 (1954); Seaboard Industries v. Monaco, 258 Pa.Super. 170, 392 A.2d 738 (1978); see C.H. Heist Caribe Corp. v. American Home Assurance Co., 640 F.2d 479, 483 (3d Cir.1981). The obligation to defend is determined solely by the allegations of the complaint in the action. Wilson, 377 Pa. at 594, 105 A.2d at 307; see C.H. Heist Caribe Corp., 640 F.2d at 483 (“the factual allegations of [the] complaint against [the] insured are controlling.”) The duty to defend remains with the insurer until the insurer can confine the claim to a recovery that is not within the scope of the policy. Cadwallader, 396 Pa. 582, 152 A.2d at 484; Seaboard Industries, 258 Pa.Super. 170, 392 A.2d 738.

766 F.2d at 760. (Emphasis in the original). Moreover, if an insurer seeks to avoid its duty to defend under the policy on the basis of an exclusion to that policy, the insurer bears the burden to prove the applicability of that exclusion. See A.G. Allebach Inc. v. Hurley, 373 Pa.Super. 41, 540 A.2d 289 (1988).

The trial court properly determined that the duty of American States to defend PREA must initially be determined by the allegations of the complaint. Trial Court Opinion, dated 5/22/91, at 16. Proceeding to examine the allegations in the Stiles’ complaint, the trial court found the complaint to include claims which potentially involved allegations of professional negligence on the part of PREA. The trial court also found that the Stiles’ complaint stated claims to which the American States' umbrella policy potentially applied. Id. at 15-21. From this, the trial court concluded that American States as well as Maryland Casualty had the duty to provide a defense to PREA. “This duty continued at least until American States could confine the Stiles’ claims to a recovery outside the scope of the Maryland Casualty’s professional service exclusion.” Trial Court Opinion, dated 5/22/91 at 20-21.

American States argues that at the time the Stiles’ complaint wás filed, American States had the Maryland Casualty policy, as well as the complaint, reviewed by “numerous individuals within American States, as well as [by] American States outside counsel. All ... were of the opinion that the Maryland Casualty Policy provided cpverage.” Appellants’ Brief at 28. We observe that American States having used the wrong map, reached the wrong destination. The appropriate question for American States to have posed was whether the Stiles’ complaint stated claims to which the American States’ umbrella policy potentially applied. Even a casual review of the facts of this case would suggest that the umbrella policy potentially applied: not only was there a colorable professional service claim but the severity of Stiles’ injuries augured a jury award that might well exceed Maryland Casualty’s one million dollar policy limits and call upon the coverage afforded by the umbrella policy. American States is not positioned to claim surprise at the $7,500,000 jury verdict in the Stiles’ lawsuit.

Next, American States cites to Brugnoli v. United National Insurance Co., 284 Pa.Super. 511, 426 A.2d 164 (1981), as authority for its contention that American States participated in the defense of PREA. In Brugnoli, the carrier, after sending a nonwaiver agreement to the insured, agreed that the insured’s private counsel would conduct the defense. The present case bears little resemblance to Brugnoli. American States did not reserve its rights to disclaim policy coverage prior to defending its insured. Rather, American States refused to defend its insured while using an attorney to protect its own interests. This cannot be equated to defending its insured pursuant to the policy.

American States also asserts that the trial court erred in overruling the partial summary judgment granted by the Honorable Robert Horgos on May 22, 1989, on the basis that the Professional Liability Exclusion Endorsement of the Maryland Casualty policy was “not applicable and did not exclude coverage to Pennsylvania Rural Electric Association for the Stiles[’] claims and lawsuit.” American States ignores the fact that the partial summary judgment was granted after the underlying litigation had terminated and claims that the trial court relieved Maryland Casualty of its duty to defend the entire suit, arguing:

It is the law of this Commonwealth that if a Complaint contains one claim which potentially falls within the indemnity coverage of an insurance policy, the insurer must defend the entire action. D’Auria v. Zurich Ins. Co., [352 Pa.Super. 231, 507 A.2d 857 (1986)] ... An insurer is relieved of its obligation to defend the entire Complaint only when the insurer can show that the allegations of the Complaint are solely and entirely within the policy exclusion. [Id. ] Since the trial court acknowledged that Maryland Casualty had a duty to defend PREA in the Stiles[’] action, Maryland likewise had the obligation to defend the entire Stiles[’] action until it could prove the applicability of its exclusion.

Brief at 19. We reject American States’ underlying premise in this argument. American States would have this standard imposed only on Maryland Casualty. However, this standard of law applies to American States also. Here, American States, itself in breach of the obligation to defend PREA, asks this Court to ignore the reality that Maryland Casualty defended PREA until settlement terminated the Stiles’ lawsuit. We decline to do so.

We believe the next claim of error is the central issue in this appeal. American States maintains that it is permitted to maintain a bad faith cause of action against Maryland Casualty based upon the doctrine of equitable subrogation as enunciated in F.B. Washburn Candy Corp. v. Fireman’s Fund 373 Pa.Super. 479, 541 A.2d 771 (1988). In Washburn, where a primary carrier wrongfully relied upon a policy exclusion to deny coverage and a defense to its insured, this Court held that the excess carrier, defending under a nonwaiver agreement was permitted to recover the cost of defense from the primary carrier where the jury verdict was less than the primary carrier’s policy limits. The excess carrier in Washburn was never called upon to provide coverage.

The present case is the converse of Washburn: Here it is the primary carrier providing the defense. We note that equitable subrogation is an “equitable doctrine.” The trial court properly concluded that, since the present case stated claims which potentially fell within the policy coverage of both insurers, American States could not assert a claim against Maryland Casualty unless it had fulfilled its own obligation to defend PREA. We view this as nothing more than an articulation of the adage that “one who seeks equitable relief must appear before the court with clean hands.” In re Francis Edward McGillick Foundation, 406 Pa.Super. 249, 263, 594 A.2d 322, 329 (1991). We reject the notion that American States could shirk its own responsibilities yet charge Maryland Casualty with bad faith.

American States also complains that the trial court erred in improperly granting Maryland Casualty’s Motion for Nonsuit. The Rules of Civil Procedure provide:

In a case involving only one defendant, at the close of a plaintiffs case on liability and before any evidence on behalf of the defendant has been introduced, the court on oral motion- of a party, may enter a nonsuit if the plaintiff has failed to establish a right to relief.

Pa.R.C.P. 230.1. A judgment of nonsuit is properly entered only if the factfinder, viewing the evidence and all reasonable inferences from the evidence in the light most favorable to the plaintiff, could not reasonably conclude that the elements of a cause of action have been established. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983). Our standard of review as an appellate court is identical:

The standard of appellate review in cases which involve the propriety of an entry of compulsory nonsuit is to give the plaintiff the benefit of every fact and reasonable inference arising from the evidence, resolving all conflicts in the evidence in his or her favor. Additionally, a compulsory nonsuit is valid only in a clear case where the facts and circumstances lead to one conclusion — the absence of liability-

Harvilla v. Delcamp, 521 Pa. 21, 25, 555 A.2d 763, 764 (1989).

On October 22, 1991, the trial court ruled, as a preliminary matter, that before American States could assert a bad faith claim against Maryland Casualty, American States had the burden to establish either that: (1) it had confined all claims raised by Stiles to activities outside the scope of Maryland Casualty’s professional service exclusion by the time Maryland Casualty rejected Stiles’ offer to settle the lawsuit for the limits of the Maryland policy or (2) it was involved in the defense of PREA. Order of Court, dated 10/2/91. American contends that this burden has been met. However, our review of the record of the trial court hearing held on April 13-14, 1992, suggests that the entry of a nonsuit was proper.

It is well-settled that, in this Commonwealth, the determination of proper coverage under an insurance contract is a question of law for the court. Loomer v. M.R.T. Flying Service, Inc., 384 Pa.Super. 244, 558 A.2d 103 (1989). Nonetheless, in its case-in-chief, American States failed to show that it had moved for judgment or had taken any other steps to allow the court to resolve this basic issue before Maryland Casualty rejected Stiles’ offer to settle the lawsuit for policy limits. American States merely offered the testimony of its claims manager, Richard Spowls, to state in light of American States investigation and review of the facts, it was his opinion and the opinion of his superiors, that Maryland Casualty’s Professional Liability Exclusion did not apply to the claims raised in the Stiles’ lawsuit. Since the question of insurance coverage is a question of law for the court, the opinion testimony of American States’ insurance claims manager, stating that insurance coverage does, or does not, exist, cannot constitute a prima facie showing that all claims had been confined .to a recovery outside the scope of the American States’ policy. Hence, we reject the conclusion that the trial court erred in the entry of a nonsuit on this issue.

Second, whether American States actually participated in the defense of PREA is a question for the factfinder, to be reversed only if the trial court abused its discretion. Faced with the unequivocal testimony of Sprowls that American States did not defend PREA in the underlying lawsuit, we find no abuse of discretion. Sprowls testified that he knew Maryland Casualty had retained the law firm of Weis and Weis (Weis) to defend PREA. Sprowls also testified that Weis prepared all necessary pleadings and conducted all discovery in the underlying lawsuit. Sprowls testified that American States had no relationship with Weis, nor did American States pay any of the legal fees to defend PREA. Outside counsel retained by American States, Louis Anstandig, testified that as coverage counsel for American States, he could not defend PREA in the Stiles’ Lawsuit because of a conflict of interest between American States and PREA. While Anstandig testified that he had, at various times, contacted Weis with suggestions, it is patent that Anstandig made these suggestions to protect the interests of American States rather than for the purpose of defending PREA in the Stiles’ lawsuit. We find no abuse of discretion by the trial court.

Finally, American States complains that the trial court erred in allowing Maryland Casualty to introduce a stipulation of facts into evidence as its Exhibit 32. Paragraph 17 of the stipulation of facts sets forth that American States did not afford PREA a defense in the underlying lawsuit. The trial court expressly stated that it would not consider this stipulation to be evidence for purposes of the nonjury evidentiary hearing. In a nonjury proceeding, “... complaints as to rulings on evidence will not prevail on appeal unless it appears that the admission of the objectionable evidence led to and is the sole support [for], material findings made against the appellant....” Appeal of Liggett, 291 Pa. 109, 139 A. 619 (1927). Since this stipulation was not the sole support of the material findings against American States and the trial court expressly stated that it would not consider the stipulation by the parties, we find no merit to this issue.

II. Cross-Appeal by American States Insurance Company at No. 01291 Pittsburgh 1991

We now turn to the issues raised by American States in its cross-appeal. In its cross-appeal, American States contends that the trial court erred in admitting into evidence certain microfilmed records and in allowing Maryland Casualty to call an employee of American States as if under cross-examination in Maryland Casualty’s case in chief. Matters relating to the admissibility of evidence are within the trial court’s discretion and an appellate court will not reverse the trial court’s ruling absent a clear abuse of discretion. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985); Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987); Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Gonzales, 415 Pa.Super. 564, 570, 609 A.2d 1368, 1370-1371 (1992).

Here, since American States had apparently “purged” its files concerning the AEC policy, Maryland Casualty sought to introduce microfilmed records concerning the existence of the AEC policy pursuant to the Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108, and the Uniform Photographic Copies of Business and Public Records as Evidence Act, 42 Pa.C.S. § 6109. Maryland Casualty proffered the testimony of Gilbert L. Shaffner, a vice-president of the Robinson-Connor Agency, the successor to the Winters-Boland Agency which issued the PREA and the AEC insurance policies and the custodian of the microfilm records, in introducing these records. American States argues that Shaffner’s testimony lacks trustworthiness because he could offer no information with regard to the preparation of these records. Shaffner’s only task was to supervise the microfilming of these records after the sale of the Winters-Boland Agency. American States contends that pursuant to the Uniform Business Records As Evidence Act, 42 Pa.C.S. § 6108, these microfilmed records could not be authenticated since an authenticating witness “must provide sufficient testimony relating to the preparation and maintenance of the records to justify a presumption of trustworthiness for the business records of a company to be admitted into evidence.” Appellant’s Brief at 37. American States is mistaken. These records are admissible.

Shaffner testified that the records transferred to microfilm were of the type maintained by an insurance brokerage, that the records were reviewed by agency personnel and prepared for microfilming, and that the microfilm is intact and unaltered and that these records have remained in the custody of Shaffner’s insurance agency. Shaffner also testified that the agency would rely upon such records to respond to customer inquiries. The Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108, provides, in pertinent part, that:

[A] record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

The Uniform Photographic Copies of Business and Public Records as Evidence Act, 42 Pa.C.S. § 6109, provides, in pertinent part, that:

[I]f any business institution ... in the regular course of business or activity, has kept or recorded any memorandum, writing, entry, print, representation, or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed, in the regular course of business, unless its preservation was required by law. Any such reproduction, in order to comply with this section must accurately reproduce all lines and markings which appear on the original. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself----

These microfilms were made in the regular course of business by the successor insurance agency to the Winters-Boland Agency, and maintained by the successor agency in order to respond to customer inquiries. The trial court determined that these records were admissible on the basis of Shaffner’s testimony and we are unable to conclude that the trial court abused its discretion in allowing these microfilm records to be admitted into evidence.

Finally, American States asserts that the trial court erred in allowing Maryland Casualty, during its case-in-chief on its counterclaim, to call Richard Sprowls, the claims manager for American States, as if under cross-examination. American States contends that as an employee, Sprowls is not subject to being called as if under cross-examination and cites to 42 Pa.C.S. § 5935. American States suggests that only “... any director or other officer of a person which is party to the record, ...” may be called as if under cross-examination. American States is mistaken. The statute states:

.. .a party to the record, or a person for whose immediate benefit such proceeding is prosecuted or defended, or any director or other officer of a person which is a party to the record, or for the immediate benefit of which such action or proceeding is prosecuted or defended, or any other person whose interest is adverse to the party calling him as a witness, may be compelled by the adverse party to testify as if under cross-examination, ... ”.

42 Pa.C.S. § 5935 (emphasis added). Not only must a statute be construed in such a manner as to give effect to all of its provisions, Freeze v. Donegal Mutual Ins. Co., 412 Pa.Super. 305, 603 A.2d 595 (1992), but in this Commonwealth, whether an employee’s interest is adverse to the party calling him to testify, for purposes of determining whether he could be called as if under cross-examination, is a factual determination within the trial court’s discretion. Gaul v. Consolidated Rail Corp., 383 Pa.Super. 250, 556 A.2d 892 (1989), appeal denied, 524 Pa. 621, 571 A.2d 383 (1990).

The role of an appellate court in reviewing findings of fact is to determine whether the findings are supported by competent evidence and whether the trial court committed error in the application of the law; the findings of a trial court in a nonjury case must be given the same weight and effect on appeal as the verdict of a jury, and those findings will not be disturbed on appeal absent errors of law or unsupported by competent evidence in the record. Porter v. Kolas, 409 Pa.Super. 159, 597 A.2d 709 (1991). The test is not whether we would have reached the same result on the evidence presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion. Stahli v. Wittman, 412 Pa.Super. 281, 603 A.2d 583 (1992). This record fails to persuade us that the trial court abused its discretion in allowing Sprowls, as the claims manager of American States, to be treated as a hostile witness and for Sprowls to testify as if under cross-examination.

III. Cross-Appeal by Maryland, Casualty Company at No. 0121pl Pittsburgh 1992

Finally, Maryland Casualty in its cross-appeal asserts that the trial court erred in dismissing its Counterclaim against American States on the basis that the AEC policy was inapplicable. In its Supplemental Opinion and Order of Court, dated October 22, 1991, the trial court ruled that Maryland Casualty would be permitted to raise a defense in the present action based on the AEC insurance policy if Maryland Casualty could establish that PREA was endorsed as an additional named insured on the AEC policy. The trial court, in dismissing Maryland Casualty’s counterclaim against American States, found that the AEC policy did not have an endorsement attached listing PREA as an additional named insured. As a result, the trial court also found that American States did not owe a defense to PREA under the AEC policy. Maryland Casualty contends that when the microfilmed records are displayed, the general change endorsement form 9-42 appears between the declaration sheet for the AEC policy but before the cancellation notice in the AEC policy. Thus, it was error for the trial court to find that the AEC policy did not contain an endorsement listing PREA as an additional named insured.

The scope of our review on the issue of whether the trial court abused its discretion is limited. We are bound by the findings of the trial court which have adequate support in the record. Gemini Equipment Co. v. Penney Supply, Inc., 407 Pa.Super. 404, 595 A.2d 1211 (1991). We find no error by the trial court and following our review of this record, we conclude that there is adequate support in the record for the trial court’s conclusion that Maryland Casualty failed to meet its burden to prove that the AEC policy contained an endorsement listing PREA as an additional named insured.

The American States underwriter for the AEC policy, Joanne Douglas, testified that an additional named insured is given all the rights under the policy and is, in effect, a co-insured under the policy. In the microfilm records of the Robinson-Connor Agency, the pages of the AEC policy appear in the following order: (1) declaration sheet for the period 3/14/78-3/14/81; (2) endorsement form 9-CL-C; (3) endorsement form 9-206 listing PREA as an additional insured under the policy; (4) endorsement form 9-287 setting forth liability coverage; (5) a general change endorsement form 9-42 listing PREA as an additional named insured; and, (6) a cancellation request/policy release dated 4/1/80. Maryland Casualty argues that since the endorsement form 9-42 appears after the declaration sheet but before the cancellation notice, it was error for the trial court to conclude that the AEC policy as issued did not contain an endorsement listing PREA as an additional named insured. We disagree.

It is apparent from a review of this record, that the files of the Winters-Boland Agency (the agency which issued the AEC policy) were in disarray. George Buckler, former counsel for Maryland Casualty, testified on cross-examination the the Winters-Boland files were “disorganized” and “all mixed-up.” The files were passed around among various attorneys at a deposition of John Boland, and at a subsequent deposition, Boland had difficulty locating requested documents.

Maryland Casualty’s counterclaim relied upon these microfilmed records as this discussion between the court and counsel for Maryland Casualty indicates:

The Court: But how do we know that page 5 (the alleged endorsement) ties into the CL policy (the AEC policy). That is the subject of the lawsuit.
Counsel: Well, your Honor, because it was between the photocopy records ...
The Court: How do we know that some lawyer, when they were going through the files in 1980, didn’t just decide to push this piece of paper (the alleged endorsement) into this file?
Counsel: Well, you don’t, but actually in the circumstantial evidence that I’m going to argue here, your Honor, and I agree with [opposing counsel], that our evidence is cir-' cumstantial in this case because the records cannot be recreated ...

It is obvious from this exchange that the trial court was concerned about the general state of disorganization of the agency files. It is also obvious that counsel for Maryland Casualty agreed with the concern expressed by the trial court.

Here, the American States underwriter, Joanne Douglas, testified that American States underwriting file on the AEC policy had been purged. Ms. Douglas noted that once a file is purged, the only way to recreate the policy and its endorsements, would be through the insurance agent or the insured. Ms. Douglas testified that AEC had three different insurance policies during the applicable period: a liability policy — the policy at issue, a Workers’ Compensation policy and a multiperil policy. While Ms. Douglas testified that PREA was listed as a named insured on both the Workers’ Compensation policy and the multi-peril policy, she testified that there was nothing to indicate that the endorsement in question applied to the liability policy, and that her only memory was that PREA was listed as an additional insured, on the policy in question.

Under cross-examination, Ms. Douglas testified that the endorsement form at issue would not have been used by the underwriting department to add PREA as an additional named insured on the AEC policy. Ms. Douglas testified that a general change endorsement form, 9-42, was not the appropriate form to add PREA as an additional named insured on the policy. She also testified that the endorsement form in the file, 9-206, reflected that PREA had been named only as an additional insured. She noted that if PREA been added as an additional named insured at the time the AEC policy was issued, PREA would have been listed in the declarations page as a named insured, and that the AEC policy would have listed both AEC and PREA on the declarations page.

It is well-established that decisions regarding the weight and the credibility of testimony are within the province of the trier of fact and will not be disturbed upon our cold review of the record. Gemini, supra; In Re New 12th Ward Republican Club, 412 Pa.Super. 255, 603 A.2d 205 (1992). Finding competent evidentiary support for the trial court’s conclusion, based on Ms. Douglas’ testimony, that PREA was not endorsed as an additional named insured on the AEC policy, we will not disturb the decision of the trial court.

Accordingly, for the foregoing reasons, we affirm the decision of the trial court.

Order Affirmed.


source: Caselaw Access Project

author: JOHNSON, Judge.

license: Public Domain

text:
    628 A.2d 893
    In the Interest of R.C. and J.C. Appeal of ROSE C., Natural Mother, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1993.
    Filed July 21, 1993.

      Stephen W. French, Brookville, for appellant.
    R. Edward Ferraro, Brockway, for Children and Youth Services, participating party.
    Before KELLY, JOHNSON and HESTER, JJ.
   JOHNSON, Judge.

In this appeal, Mother, Rose C., contends that the trial court failed to comply with the requirements of the Juvenile Act as set forth at § 6351(f) and (g) in the dispositional review hearing held on August 26, 1992. The trial court order allowed Jefferson County Children and Youth Services (CYS) to keep Mother’s two oldest children in foster care for an additional ninety days pending a psychological evaluation of the family. Her children, R.C., age 12, and J.C., age 10, had been declared dependent pursuant to the Juvenile Act, 42 Pa.C.S. § 6301 et seq., as truants when the children were excluded from school because of a re-occurring lice problem. Finding that the trial court failed to comply with the requirements of the Juvenile Act, we vacate and remand.

Preliminarily, we observe that in this case, throughout the trial court proceedings, the children’s full names and those of the other siblings and family members are used rather than initials. To preserve the privacy of this family, we have changed the names of the children and those family members to initials in the caption and throughout this opinion.

At the time the children were declared dependent, the children were living with Mother; William L., mother’s companion; and two younger children fathered by William L.: S.L., age 3, and W.L., age 2. While S.L. was originally named in the dependency petition, the trial court removed her name from the September 24,1991, order declaring R.C. and J.C. to be dependent children as defined by the Juvenile Act. Thus, we have removed S.L.’s name from the caption of this appeal.

From September 24, 1991, when the children were declared dependent but lived at home, Mother was in partial compliance with the family service plan, and the children attended school regularly until January 22, 1992. From January 22, 1992, to February 3, 1992, the children were excluded from school because the lice infestation had recurred. On February 3, 1992, the children were enrolled in a school in McKean County but were excluded from school the same day because of nits. From February 4, 1992, to February 18, 1992, R.C. was able to attend school for only one-half day because of nits. On February 18, 1992, the children were taken into custody and placéd in foster care by CYS.

Mother alleges that the children were ordered, at the dispositional review hearing held on March 25,1992, to remain in foster care because CYS had failed to schedule the necessary assistance to teach her how to manage the lice problem. By August 10, 1992, CYS filed a Petition for Placement and Dispositional Review, indicating that while the lice problem had been addressed, the children exhibited psychological problems including issues concerning their home life and mother-daughter role reversal.

Also, in August of 1992, CYS had a psychiatrist, Dr. Elmer Cupino, evaluate the children. Mother alleges that Dr. Cupino’s psychiatric evaluations of the children, which were circulated to the court, ex parte, prior to the hearing, were hearsay and that copies of the reports were not made available to her counsel until the day before the scheduled dispositional hearing. N.T., 8/26/92, at 8.

At the dispositional hearing, Pier McKinney, the CYS caseworker, testified that no member of Mother’s household had lice, that Mother had received a good rating on the most recent family service plan, and that the home conditions had improved. N.T., 8/26/92, at 13-15. McKinney indicated that the two other children in Mother’s household had not been put into placement. She also stated that while Mother’s mental health evaluation indicated that there was no reason for Mother to undergo further counseling, McKinney would like to see both parents have a psychological evaluation. Id. at 20, 22, 24. McKinney testified that her reasons for wanting to keep the two children in foster care were based on the conclusions in Dr. Cupino’s evaluations. Over Mother’s hearsay objections, McKinney was allowed to testify based on the information in these reports N.T., 8/26/92, at 7-10. Notwithstanding that when queried, McKinney indicated that should the court deem counseling for the children necessary, counseling could be provided while they lived at home, McKinney, recommended that the children remain in foster care because they “have some significant concerns, they are fearful, they cry when they get back from visits [with Mother], they make themselves sick.” Id. at 15-17, 23. The trial court determined that the two children were to remain in foster care for an additional ninety days and ordered an evaluation of both parents and the two children by Dr. Allen Ryen, a psychologist. N.T., 8/26/92 at 33. This appeal followed.

Mother raises three issues for our review, contending that the trial court erred in:

I. Failing to set forth all the necessary findings in its order which would permit the trial court to keep the children in foster care.
II. Failing to require Children and Youth Services of Jefferson County to meet the burden of proof necessary to keep appellant’s children in foster care,” at the August 16, 1992, dispositional hearing.
III. Improperly receiving testimony regarding ex parte reports from a medical practitioner which had not been offered into evidence.

Initially, we note that this appeal does not concern the original finding of dependency. Mother did not appeal from the order declaring the children dependent which was entered on September 24, 1991. Mother appeals only from the dispositional review hearing of August 26, 1992, which determined that the children would continue in foster care for a ninety day period pending a psychological evaluation of the family to allow the trial court “to feel safe” in allowing the children to “[g]o home.” N.T., 8/26/92, at 33.

Pursuant to 42 Pa.C.S. § 6351(f), the trial court is required to review the goals and placement of the child at each dispositional review hearing. That section of the Juvenile Act states:

(f) Matters to be determined. — At each dispositional review hearing, the court shall:
(1) determine the continuing necessity for and appropriateness of the placement;
(2) determine the extent of compliance with the service plan developed for the child;
(3) determine the extent of progress made toward alleviating the circumstances which necessitated the original placement.
(4) determine the appropriateness and feasibility of the current placement goal for the child; and
(5) project a likely date by which the goal for the child might be achieved.

42 Pa.C.S. § 6351(f).

In this case, the order entered by the trial court was a preformatted order. Mother asserts these orders are routinely drawn up by CYS. The text of the pre-formatted order, as completed by the trial court, is as follows:

And now, this 26th day of August 1992 after a dispositional review hearing having been held on this matter, and a review of the Service Plan for the said minor child, it is found that:
1. The Court has determined the extent of compliance with the Service Plan, the extent of progress made to alleviate the circumstances which necessitated placement, that reasonable efforts were made to prevent placement, that reasonable efforts were made to reunite the family, [and] a projected likely date by which the goal for the child might be achieved.
2. That continued placement is/is not needed to protect the physical, mental and moral welfare of the dependant child, and is better suited than any other alternative.
IT IS THEREFORE HEREBY ORDERED that said minor child:
(_) Be released from placement.
(XX) Continue in placement until for max, of 90 dags. (_) Be placed for adoption.
(_) Continue in placement on a permanent long-term basis.
Dr. Allen Ryen to do eval. of parents & children
BY THE COURT
s/Wm. L. Henry
PRESIDENT JUDGE

Mother alleges that the trial court routinely signs these orders without setting forth the findings required by § 6351(f). Mother directs us to the August 26,1992, order for evidence of this fact, noting that the trial court failed to set forth any of its findings as required by § 6351(f). Also, Mother points to paragraph 2 of the Order, where the trial court neglected to select whether continued placement was or was not needed to protect the physical, mental and moral welfare of the child, a requirement of § 6351(g)(2).

Pursuant to § 6351(f), the trial court is required to make determinations regarding the continuing necessity and the appropriateness of placement, compliance with the service plan for the child, the extent of progress made toward alleviating the circumstances leading to the original placement and the appropriateness of the current placement as well as to project a date by which the goal for the child might be met. In addition, 42 Pa.C.S. § 6351(g) provides:

(g) Court order. — On the basis of the determinations made under subsection (f) and other relevant evidence, the court, in addition, shall:
(1) determine whether the child:
(i) should be returned to the parents, guardian or other custodian;
(ii) should be continued in placement for a specified period; or
(iii) because of the child’s special needs or circumstances should remain in placement on a permanent or long-term basis; and
(2) order continuation, modification or termination of placement or other disposition best suited to the protection and physical, mental and moral welfare of the child.

In cases such as the present one, involving dependency and placement, our scope of review is broad, but limited in a fundamental manner by our inability to nullify the fact-finding of the trial court. In re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708 (1983). Mother argues that if the trial court is required by statute to determine the various criteria as set forth in 42 Pa.C.S. § 6351(f), it is appropriate for the trial court to set forth these criteria in an order or an opinion. She contends that in declaring a child dependant, the trial court is required to issue its order “... accompanied by a full and complete analysis of the evidence, supported by appropriate findings of fact and conclusions of law.” Frank W.D., supra. Mother asserts that the trial court should be held to the same standard of care at a dispositional review hearing. We agree.

In dependency matters we have a scope of review that is similar to our scope of review in custody matters. See, Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). In custody matters, we have consistently emphasized that the hearing court must provide us not only with a complete record, but also with a complete and comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision. Schwarcz v. Schwarcz, 378 Pa.Super. 170, 548 A.2d 556 (1988), appeal denied, 522 Pa. 578, 559 A.2d 39 (1989); In re Arnold, 286 Pa.Super. 171, 428 A.2d 627 (1981); Pa.R.C.P. 1915.10(a), Explanatory Note-1981. The trial court’s opinion must address the testimony and the law; it must indicate the grounds for selecting the particular findings, and the reasoning process by which it reached its final conclusion. Cady v. Weber, 317 Pa.Super. 481, 464 A.2d 423 (1983). It is only then that we can determine whether the findings of the trial court are supported by competent evidence. Cady at 486, 464 A.2d at 426.

Just as in custody matters where we are loathe to pass judgment on something as precious and intrinsically valuable as a child’s welfare without every possible piece of information that bears on this subject, we have a similar responsibility in a dispositional review hearing in dependency matters. See 42 Pa.C.S. § 6351(f) and (g); see also In re Arnold, 286 Pa.Super. at 175, 428 A.2d at 628. It is for this reason that, in custody matters, we require a probing analysis of the record be performed by the trial court; it is the trial court which is in a superior position to determine the credibility, sincerity and attitude of the parties and their witnesses. Id. at 174-175, 428 A.2d at 629. We find such an analysis lacking in this case.

Here, the one-page trial court order offers only the names and the birthdates of the two children; the one and one-half page trial court opinion offers only the most skeletal recitation of the facts and circumstances of the case before us. We find the trial court opinion to be inadequate not due to its brevity, as an opinion may be concise and still comply with the mandate of this Court. See Commonwealth ex rel. Debeary v. Debeary, 310 Pa.Super. 137, 456 A.2d 221 (1983). Here, the trial court opinion lacks any analysis of the testimony, the law as applied to the testimony, or the determinations required by 42 Pa.C.S. § 6351(f) and (g). We are not unmindful of the burden the statutory requirements of the Juvenile Act place on the trial courts of this Commonwealth in dependency matters. We note that while the trial court must address the testimony and the law, and indicate the grounds for selecting the particular findings as well as the reasoning process by which the final conclusion was reached, it is possible to accomplish these tasks in an order. See, e.g., Court of Common Pleas of Philadelphia County, Family Division, Dependency Dispositional and Review Order, 20 Pa.Bull., No. 14, April 7,1990, reprinted in Pennsylvania Judicial Deskbook: A Guide to Judicial Decisions Affecting Dependent Children (2d ed. S. Magdovitz, ed.) at 124-125 (1990). However, in this case, as neither the trial opinion nor the trial court order provides an adequate basis for appellate review, we remand for the entry of a full opinion or an expanded order of court.

Second, Mother claims that CYS has failed to meet its appropriate burden of proof to continue to keep her children in placement. She argues that the appropriate burden of proof is clear necessity. We decline to address this issue. Our Court has determined that once a child has been adjudicated dependent, the issues of custody and the continuation of foster care are determined according to the child’s best interests. In the Interest of Sweeney, 393 Pa.Super. 437, 574 A.2d 690 (1990), appeal denied, 526 Pa. 649, 585 A.2d 469 (1991). Until such decision of our Court has been overruled by the Supreme Court of this Commonwealth, our holding in In the Interest of Sweeney, remains the law in this Commonwealth. Id.; see Baker v. Aetna Casualty and Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982).

Finally, Mother contends that the trial court improperly received testimony regarding ex parte psychiatric reports which had not been offered into evidence. Mother alleges that a considerable portion of the testimony of the CYS caseworker was based on the psychiatric reports of Dr. Cupino. Dr. Cupino was asked to evaluate both R.C. and J.C. by CYS to determine whether the children should return home. Psychiatric Evaluation of R.C. by Elmer Cupino, M.D., dated 8/6/92; Psychiatric Evaluation of J.C., by Elmer Cupino, M.D., dated 8/19/92. Mother alleges Dr. Cupino’s evaluations were the only basis for the CYS position that there were psychological reasons to continue to keep her children in foster care.

Previously, this court has ruled that:

A party or litigant has the right to an in court presentation of evidence, such is essential to due process. Such report or letter cannot be received into evidence over objection in a custody matter unless its author is sworn, examined and subjected to cross-examination. Palmer v. Tokarek, 279 Pa.Super. 458, 421 A.2d 289 (1980).

In re Long, 313 Pa.Super. 47, 53, 459 A.2d 403, 405 (1983).

Here, the timely objection Mother raised to the reports was overruled and the trial court ordered the entire family to be evaluated. N.T., 8/26/92, at 8-10. CYS contends, however, that there is no indication that these reports formed the basis for the decision of the trial court to keep the children in foster care. Appellee’s Brief at 16.

In this case, the trial court decision was set forth in a preformatted standard order. The order of the trial court does not provide us with any analysis of the evidence nor does it set forth the actual findings of fact upon which the trial court based its decision. Hence, we are unable to determine whether or not the trial court impermissibly relied upon the psychiatric evaluations to continue to keep the children in foster care.

From the trial court’s form order, in this case, it is impossible for our Court to determine whether continued foster care placement was or was not needed to protect these children. Based on the record before us, we are constrained to conclude that the trial court has failed to set forth the necessary findings which would permit these children to remain in foster care.

Accordingly, the Dispositional Review Order dated August 26,1992, continuing foster care placement for R.C. and J.C. is hereby set aside. This case is REMANDED to the trial court which shall prepare and file a comprehensive opinion and order within thirty days of the remand of the record; no part of the comprehensive opinion or order shall rely on psychiatric evaluations where the author who prepared those evaluations has not been sworn, examined and subjected to cross-examination; following the entry of any new order and opinion, the parties shall have the right, if aggrieved, to file a new appeal. Jurisdiction is RELINQUISHED.

Order vacated and case remanded for proceedings not inconsistent with this opinion. Jurisdiction relinquished.


text:
    628 A.2d 899
    CIGNA INSURANCE COMPANY v. A. Mary SQUIRES, Administratrix of the Estate of Nicholas J. Squires, and A. Mary Squires, Individually, on her own Behalf, Appellant.
    Superior Court of Pennsylvania.
    Argued April 15, 1993.
    Filed July 21, 1993.

      John G. Swatkoski, Kingston, for appellant.
    Jordon H. Pecile, Wilkes-Barre, for appellee.
    Before CAVANAUGH, BECK and JOHNSON, JJ.
   JOHNSON, Judge.

A. Mary Squires, individually and as administratrix of the estate of Nicholas Squires, appeals from the judgment entered by the trial court. The trial court’s judgment vacates the arbitration award of damages to be paid by Cigna Insurance Company (Cigna) to Squires. We reverse.

On December 21, 1989, Nicholas Squires was killed in an automobile accident. The decedent, who was employed by Claws Refuse Inc., was killed while working within the scope of his employment. The decedent was struck by a motor vehicle, operated by Kevin Edsell, while collecting refuse to empty into the company truck.

A. Mary Squires, individually and as administratrix for the decedent’s estate, filed a Wrongful Death and Survival Action against Edsell. Edsell’s insurer, Agway Insurance Company, paid Squires its $100,000 policy limit with the consent of Cigna, the insurer for the decedent’s employer.

Following settlement with Agway Insurance Company, Squires demanded recovery of underinsured motorist benefits under Claws Refuse’s business automobile policy with Cigna. Squires also demanded stacking of underinsured motorist benefits for the company’s eleven vehicles, which would have provided a total of $385,000 in benefits. Cigna admitted liability but contended that Squires could only recover single underinsured motorist coverage of $35,000, which would apply to the vehicle which the decedent was occupying at the time of his death. Since the parties were unable to agree as to the amount of underinsured motorist benefits that Squires should recover, the matter was submitted to a panel of arbitrators, pursuant to the arbitration provision within the Cigna policy. That provision states:

Arbitration shall be conducted in accordance with the Pennsylvania Uniform Arbitration Act. Unless both parties agree otherwise, arbitration will take place in the county in which the “insured” lives. Local rules of law as to arbitration procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding.

The panel of arbitrators convened on August 2, 1991 to determine the issue of stacking. The panel convened again on October 31, 1991, to hear evidence on the subject of damages. The arbitration panel issued its award of damages on November 20, 1991, holding that Squires was entitled to stack underinsured motorist coverage. Damages were awarded to Squires in the amount of $355,013.50, to be reduced by the previously recovered $100,000.

Cigna thereafter filed a petition with the trial court, our esteemed colleague the Honorable Gifford Cappellini, to vacate, correct or modify the arbitration award as it was based on an error of law. Following argument, the trial court vacated the arbitrators’ award and ordered Squires to receive $35,000 in underinsured motorists benefits. Squires then appealed.the order of the trial court to this Court. The trial court, in its Opinion, indicates that in light of this Court’s decision in Dearry v. Aetna Life and Casualty Insurance Company, 415 Pa.Super. 634, 610 A.2d 469 (1992), and Judge Sylvia Rambo’s well-written decision in Aetna Casualty and Surety Company v. Deitrich, 803 F.Supp. 1032 (M.D.Pa.1992), it now recommends that we reverse its order vacating the arbitrators’ award.

Squires presents two issues for our review:

1. Whether the trial court erred in applying the statutory arbitration standard of review under 42 Pa.C.S. § 7302(d)(2) to modify the arbitrators’ award.
2. Whether the trial court erred in holding that the stacking of underinsured motorist coverage is contrary to existing law.

First, Squires asserts that the trial court erred in applying the standard of review articulated in 42 Pa.C.S. § 7302(d)(2) to modify the arbitrators’ award. We agree. We also conclude that application of the correct standard of review precludes us from addressing Squires’ second issue.

The 1980 Uniform Arbitration Act (Act), 42 Pa.C.S. § 7301 et seq., delineates its scope in § 7302(a) which states:

(a) General rule. — An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter.

The Cigna insurance policy, in the present case, is in writing and expressly provides for arbitration to occur under the provisions of the Uniform Arbitration Act. Thus, without more, the present policy will be construed to expressly provide for statutory arbitration under the 1980 Act. See Popskyj v. Keystone Insurance Company, 388 Pa.Super. 429, 565 A.2d 1184 (1989) (en banc), appeal denied, 525 Pa. 602, 575 A.2d 567 (1990).

The Act provides for two standards under which a court may review the award of an arbitration panel, found in § 7302(d)(2) and in § 7314. The trial court applied 42 Pa.C.S. § 7302(d)(2) as the standard under which it reviewed the award of the arbitration panel for errors of law. We conclude that this was error.

The 1980 Uniform Arbitration Act at 42 Pa.C.S. § 7302(d) states:

(d) Special application.—
(1) Paragraph (2) shall be applicable where:
(i) The Commonwealth government submits a controversy to arbitration.
(ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.
(iii) Any person has been required by law to submit or to agree to submit a controversy to arbitration pursuant to this subchapter.
(2) Where this paragraph is applicable a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this sub-chapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.

Our legislature, when enacting the 1980 Uniform Arbitration Act, was cognizant of the changes in the standard of review contained in the 1980 Act from the broad “error of law” standard of review contained in the 1927 Uniform Arbitration Act (now repealed). The 1927 Act provided:

§ 171 Modifying or correcting award, grounds In either of the following cases the court shall make an order modifying or correcting the award upon the application of any party to the arbitration:
(d) Where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict.

Our legislature anticipated that difficulties might be caused for parties who intended arbitration to occur under the provisions of the 1927 Act, rather than those of the Act in its present form, when articulating the special applications provision of § 7302(d)(2). See Popskyj, supra. Therefore, a historical note as to applicability was added to § 7302 indicating under what circumstances § 7302(d)(2) should be applied. That note states:

Application
“The provisions of 42 Pa.C.S. § 7302(d)(2) (relating to special application) shall be applicable to any nonjudicial arbitration pursuant to:
“(1) An agreement made prior to the effective date of this act which expressly provides that it shall be interpreted pursuant to the law of this Commonwealth and which expressly provides for statutory arbitration.
“(2) An agreement heretofore or hereafter made which expressly provides for arbitration pursuant to the former provisions of the Act of April 25, 1927 ..., relating to statutory arbitration.”

After a thorough review of the Cigna policy, we conclude that neither of the above two conditions exist in the policy under consideration here. The insurance policy was issued after the effective date of the 1980 Act, December 4,1980, and, while it expressly provides for arbitration under the Uniform Arbitration Act, it does not require arbitration to occur under the provisions of the 1927 Act. We, therefore, conclude that § 7302(d)(2) does not apply to the Cigna policy at issue in this case.

Prior to a review of the case law in this area, we will review the standards under which a court may properly vacate or modify an arbitration award in the majority of cases presented for statutory arbitration. Those sections state in pertinent part:

§ 7314. Vacating award by court
(a) General rule.—
(1) On application of a party, the court shall vacate an award where:
(i) the court would vacate the award under section 7341 (relating to common law arbitration) if this subchapter were not applicable;
(ii) there was evident partiality by an arbitrator appointed as a neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party;
(iii) the arbitrators exceeded their powers;
(iv) the arbitrators refused to postpone the hearing upon good cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 7307 (relating to hearing before arbitrators), as to prejudice substantially the rights of a party; or
(v) there was no agreement to arbitrate and the issue of the existence of an agreement to arbitrate was not adversely determined in proceedings under section 7304 (relating to court proceedings to compel or stay arbitration) and the applicant-party raised the issue of the existence of an agreement to arbitrate at the hearing.
(2) The fact that the relief awarded by the arbitrators was such that it could not or would not be granted by a court of law or equity is not a ground for vacating or refusing to confirm the award.

§ 7315. Modification or correction of award by court

(a) General rule. — On application to the court made within 30 days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:

(1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(2) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(3) the award is deficient in a matter of form, not affecting the merits of the controversy.

None of the circumstances articulated in § 7314(a)(1)(ii), (iii), (iv), or (v) or § 7315 are alleged to apply to the facts of this case. The conditions under § 7314(a)(1)(i), referring to common law arbitration, which would permit a court to vacate an award are: fraud, misconduct, corruption, or other irregularity which caused the rendition of an unjust, inequitable or unconscionable award. Section 7314(a)(2) also specifically prohibits a court from vacating an arbitrator’s award on the grounds that a court could not, in law or equity, grant that award. See also Boyce v. St. Paul Property and Liability Insurance Co., 421 Pa.Super. 582, 618 A.2d 962 (1992).

Cigna did not allege fraud, misconduct, or corruption but did contend that the arbitrators’ award constituted an error of law, which constituted an irregularity under § 7314(a)(1)®. Cigna thereby maintains that the arbitrator’s award was properly reviewed by the trial court and could have been vacated, due to an error of law, under either § 7302 or § 7314.

Squires on the other hand maintains that the trial court erred in reviewing the arbitrator’s award based on a claim of an error of law. We agree.

In Popskyj, supra, a plurality of this Court, sitting en banc, addressed the issue of whether this Court could apply § 7302(d) to review an award of an arbitration panel for an error of law. There, we articulated the narrow circumstances under which a court could review a case under the standard of review in § 7302(d). This Court held that § 7302(d) only applied where: (1) the cause of action arose prior to the effective date of the 1980 Act, December 4, 1980; (2) the insurance agreement was entered into by the parties prior to December 4,1980; or, (3) the insurance agreement specifically provides for arbitration to take place under the 1927 Act. Popskyj, 388 Pa.Super. at 442-443, 565 A.2d at 1191. As none of the above circumstances were applicable, we held that we were unable to review that case for an error of law under § 7302(d). We also held that § 7314 is the standard of review which applies to all other cases under the 1980 Act, and that section expressly forbids review by this Court for an error of law. Popskyj at 434-435, 565 A.2d at 1187-1188.

Cigna contends that this Court has rejected the principles articulated in Popskyj, in the more recent cases of Bowdren v. Aetna Life and Casualty, 404 Pa.Super. 595, 591 A.2d 751 (1991), appeal denied, 529 Pa. 644, 602 A.2d 855 (1992) and Carroll v. State Farm Mutual Automobile Insurance Company, 420 Pa.Super. 215, 616 A.2d 660 (1992), appeal denied, 533 Pa. 641, 622 A.2d 1374 (1993). We disagree.

In Bowdren, supra, this Court was again faced with the question of whether we can review an arbitration award for an error of law. The Bowdren court held that if the insurance contract expressly provides for statutory arbitration, then the standard of review is dictated by § 7302. Bowdren, 404 Pa.Super. at 601, 591 A.2d at 754. In coming to this conclusion the Court neither relies upon nor rejects the reasoning in Popskyj. While Bowdren states that, in any statutory arbitration case, § 7302(d) provides the standard of review, it does not discuss the historical note describing the limited application of that section. Moreover, if we apply the Bowdren analysis of § 7302(d) to the facts of the case sub judice, § 7314 ceases to have any purpose under the Act. Accord Aetna Casualty and Surety Company v. Deitrich, 803 F.Supp. 1032 (M.D.Pa.1992). In our interpretation of the statute, however, we must, presume that the legislature intended the entire statute to be effective. 1 Pa.C.S. § 1922(2). We are unpersuaded that Bowdren represents an express rejection of the Popskyj analysis or that Bowdren applies in the present case.

Cigna also cites to Carroll, supra, to support the proposition that this Court has rejected the reasoning presented in Popskyj. In Carroll, the court held that if the insurance contract provided for statutory arbitration, the “error of law” standard contained in § 7302(d) applied. The Carroll court neither cited nor distinguished the reasoning of Popskyj. Rather, the court relied upon Geisler v. Motorists Mutual Insurance Company, 382 Pa.Super. 622, 556 A.2d 391 (1989), to support its conclusion.

In Geisler, the court concluded that § 7302(d) provided the proper standard under which it should review the award of the arbitration panel. Geisler at 625-626, 556 A.2d at 393. This was an entirely proper result as the insurance contract, in that case, expressly provided for arbitration to take place under the 1927 Act. The Geisler court looked to the historical note to § 7302(d) in order to establish that the standard articulated in § 7302(d)(2) applied in that particular case. Geisler at 625-626, 556 A.2d at 393.

In Carroll, where the insurance contract expressly provided for arbitration under the 1980 Act, the Court did not factually distinguish that case from Geisler. Further, the Carroll court did not discuss the historical note to § 7302, as limiting the application of that section. Again, we are unable to view this Court’s decision in Carroll as expressly rejecting the reasoning presented in Popskyj.

This Court has followed Popskyj in several recent decisions. In Dearry v. Aetna Life & Casualty Insurance Company, 415 Pa.Super. 634, 610 A.2d 469 (1992), an insurance contract provided for arbitration under the Pennsylvania Uniform Arbitration Act. There, citing Popskyj, we refused to review a claim under the error of law standard of § 7302(d), finding none of the circumstances described in the historical note applied to the facts of that particular case. Id. at 642, 610 A.2d at 472-73.

In Martin v. PMA Group, 420 Pa.Super. 624, 617 A.2d 361 (1992), we were again presented with the question of whether an arbitrators’ award could be reviewed for an error of law. In that case, we followed the holding of Popskyj to conclude that the standard of review under § 7302(d) was inapplicable, as the circumstances described in the historical note were not present. Id. at 629, 617 A.2d at 362. We determined that we were thereby precluded from reviewing the arbitrators’ award, and held that, “[s]ection 7314 of the Pennsylvania Uniform Arbitration Act delineates the circumstances under which a statutory arbitration award can be vacated by a court and an award contrary to law is not one such circumstance.” Id.

In Boyce v. St. Paul Property and Liability Insurance Co., 421 Pa.Super. 582, 618 A.2d 962 (1992), we again declined to review an arbitrators’ award on an error of law claim. There, we cited §§ 7314 and 7315 as describing the only circumstances under which a court may vacate or modify an award of an arbitrator, stating: “[s]uch a claim, that the award is contrary to the law, is not a sufficient basis for vacating the award pursuant to § 7314 and 7315.” Id. at 592, 618 A.2d at 968. In Boyce, not citing to Popskyj, we clearly followed the same reasoning as Popskyj by stating that a claim of an error of law is not sufficient to permit us to vacate an award made pursuant to the Pennsylvania Uniform Arbitration Act. Id.

We also find the reasoning presented in Aetna Casualty v. Deitrich, supra, to be persuasive. There, Judge Rambo, writing for the Federal District Court for the Middle District of Pennsylvania, discussed what standard of review a court should apply when reviewing an arbitrators’ award under the 1980 Pennsylvania Uniform Arbitration Act. In that case, the court, relying on the reasoning of Popskyj, held that since none of the circumstances described in the historical note to § 7302 applied, § 7314 provided the correct standard of review. Id. at 1037. The court concluded that it could not review the arbitration award based on an alleged error of law. Id. at 1040.

Returning to the present case, after a full review of the record, we have concluded that § 7302(d) does not provide the correct standard of review for this case since (1) the insurance contract was entered into by the parties after December 4, 1980, and (2) the agreement does not expressly provide for arbitration under the 1927 Act. Therefore, this Court could only vacate the award of the arbitrators under the circumstances described in § 7314.

Cigna attempts to support the trial court’s decision by asserting that since the arbitrators’ award constitutes an error of law, it is an irregularity for which the award should be vacated under § 7314(a)(l)(i), relating to common law arbitration. However, § 7314(a)(2) expressly forbids this court to vacate an award by an arbitrator merely because it could or would not be granted by a court of law or equity. See also Boyce, supra; Martin, supra.

The distinguished trial court, after considering Squires’ claims and the decisions in Dearry and Deitrich, supra, concluded that its order modifying the award of the arbitrator, based solely on an alleged error of law, was improper under the 1980 Act and should be reversed. We agree. Accordingly, we are constrained to reverse the order of the trial court.

As we conclude that this Court may not review the arbitration award for an error of law, under the provisions of the 1980 Act, we are therefore precluded from addressing the second issue presented in this appeal.

Order Reversed and Case Remanded with Instructions to Reinstate the Arbitration Award.


author: TAMILIA, Judge.

text:
    628 A.2d 904
    COMMONWEALTH of Pennsylvania v. Carl RUNION, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 24, 1993.
    Filed July 22, 1993.

      Lori J. Ulrich, Harrisburg, for appellant.
    Richard E. Guida, Asst. Dist. Atty., Harrisburg, for Com., appellee.'

      Before ROWLEY, President Judge, and TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge.

Appellant, Carl Runion, takes this appeal from the judgment of sentence imposed on November 19, 1992. Appellant was found guilty in a jury trial of simple assault, graded as a misdemeanor of the third degree as resulting from a scuffle entered into by mutual consent. Subsequently, appellant was sentenced to a term of three (3) to twelve (12) months in the Dauphin County Prison, flned $300 and ordered to pay restitution in the amount of $7,261.07 to the Dauphin County Public Assistance Program, which had paid the medical bills of the victim (N.T., 11/19/92, p. 8).

On appeal, appellant first argues the Order of restitution was improper in that the Dauphin County Public Assistance Program was not the victim of the assault.

The Crimes Code provides for restitution for injuries to person or property, and states, in pertinent part:

(a) General rule. — Upon conviction for any crime ... wherein the victim suffered personal injury directly resulting from the crime, the offender may be sentenced to make restitution in addition to the punishment prescribed therefor.
(e) Restitution payments and records. — Restitution, when ordered by a judge, shall be made by the offender to the probation section of the county in which he was convicted according to the order of the court or, when ordered by a district justice, shall be made to the district justice. The probation section and the district justice shall maintain records of the restitution order and its satisfaction and shall forward to the victim the property or payments made pursuant to the restitution order.

18 Pa.C.S. § 1106. The statute further defines victim as: “Any person, except an offender, who suffered injuries to his person or property as a direct result of the crime.” Id., § 1106(h).

This Court must determine, then, whether the Dauphin County Public Assistance Program is a victim of appellant’s crime, as that term is used in section 1106 of the Crimes Code. We conclude it is.

It is the law of this Commonwealth that an Act of Assembly which imposes penal sanctions for violations of its provisions must be strictly construed. 1 Pa.C.S. § 1928(b)(1); Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). “However, strict construction does not require that the words of a criminal statute be given their narrowest meaning or that the legislature’s evident intent be disregarded.” Commonwealth v.- Gordon, 511 Pa. 481, 487, 515 A.2d 558, 561 (1986). In attempting to ascertain the meaning of a statute, we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988). We are to presume the legislature did not intend a result that is absurd or unreasonable. Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989).

In Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982), this Court vacated an Order of restitution directing the defendant to make restitution to the insurance company whose policy covered the dwelling defendánt had burned, finding that the insurance company was not the victim within the meaning of 18 Pa.C.S. § 1106(h). “[Pjayment under an insurance contract is not a ‘loss,’ but merely a contractual obligation. Only the innocent legal owners of the home destroyed by the arson are entitled to restitution on the arson conviction as the victims.” Id. at 162, 448 A.2d at 577 (footnote omitted). See also Commonwealth v. Mathis, 317 Pa.Super. 362,. 464 A.2d 362 (1983).

However, in Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986), vacated on other grounds, 517 Pa. 83, 534 A.2d 1050 (1987), an en bane panel of this Court analyzed for the first time the issue of whether government agencies and offices can be included within the definition of “victim.” In Mourar, the defendant was ordered to make restitution to the Pennsylvania Bureau of Drug Control and the Chester County Detectives Office for the amount of drug purchases made by undercover agents.

Interpreting the prior decisions of other jurisdictions which had considered the issue, and applying the “injury to property” provision of 18 Pa.C.S. § 1106(a), the Mourar Court held “that a governmental agency can be a ‘victim’ as that term is used in 18 Pa.C.S. § 1106....” Id. at 599, 504 A.2d at 206.

In Commonwealth v. Anderson, 394 Pa.Super. 299, 575 A.2d 639 (1990), this Court reversed an Order directing the defendant to pay restitution to the volunteer program, “Crime Stoppers,” for the costs it incurred using an informant to target defendant for the drug activity of which he was convicted. “While this court has stretched the definition of ‘victim’ in § 1106 to include the Commonwealth, we have no desire to further elongate the term to include organizations such as ‘Crime Stoppers.’” Id. at 301, 575 A.2d at 640 (footnote omitted).

The Anderson Court went on to state:

Unlike the police, who have a statutory duty to protect the citizens of Pennsylvania and use the citizens’ money to do so, “Crime Stoppers” is a volunteer organization of people and businesses who willingly give their money to pay people who have information about the criminal activity of others. While the efforts of “Crime Stoppers” have been helpful to the police, these efforts are not mandated by the citizens of Pennsylvania.
“Crime Stoppers” is a private organization acting as it believes good citizens should by helping gather information about criminal activity and by giving such information to the police. Money given to “Crime Stoppers” is not tax money. It is money given freely by people who want to see those who have committed crimes put in jail. Since the funds used by “Crime Stoppers” is voluntarily donated and not public funds, the organization cannot be considered a victim for purposes of restitution.

Id. Thus, we find Anderson is distinguishable from Mourar, the fundamental holding of which remains intact.

Therefore, we find the trial court acted properly within its discretion in ordering appellant to make restitution to the Dauphin County Public Assistance Program, as the program may be considered a victim of appellant’s actions under Mourar. Unlike “Crime Stoppers,” the Public Assistance Program is not a volunteer program but, to the contrary, is mandated by law to provide, at public expense, medical services to indigent victims of criminal activity. To deny the right of restitution for the services it provided benefits only the criminal and twice penalizes society and the taxpayers.

Turning to appellant’s second claim, however, we find the sentencing court failed to determine adequately appellant’s ability to pay the restitution ordered.

As part of sentence, restitution is within the discretion of the sentencing court but must be supported by the record, and the court must determine the loss or damages resulting from the defendant’s conduct, the amount of compensation the defendant can afford to pay and how such amount shall be paid. An award for restitution should not be speculative or excessive. There is no requirement the reasons for ordering restitution be set forth at sentencing.

Commonwealth v. McLaughlin, 393 Pa.Super. 277, 574 A.2d 610 (1990), app. den. 527 Pa. 616, 590 A.2d 756 (1991), cert. denied — U.S.-, 112 S.Ct. 320, 116 L.Ed.2d 261 (1991).

In the case before us, the record at the sentencing hearing of appellant’s ability to pay restitution consists entirely of the following:

THE COURT: Tell me something about your background.
THE DEFENDANT: I am laid off temporarily from. Anger Fencing, Columbia, but my mother had a major back operation and she has no use of her left leg. She has a cleaning contract for Northwest Airlines in Middletown. She has a cleaning contract, it is a big one over at Sigma Food Service and me and my sister has been working every night so she doesn’t lose her contract so she could keep that contract until she gets back on her feet which will probably be six to eight months. She has no use of her left leg right now.

(N.T., 11/19/92, p. 2.) The record also is devoid of any presentence investigation, which may have disclosed appellant’s financial and/or employment status. Moreover, the sentencing court has failed to include an Opinion in the record before us, as required by Pa.R.A.P. 1925(a). The Commonwealth did introduce, however, evidence of the specific amount of restitution for which appellant was responsible.

After thoroughly reviewing the record, we conclude that the record amply supports an order of restitution. However, because the record does not disclose appellant’s ability, either now or in the future, to make restitution, and the court did not determine in what manner the restitution should.be made, we must vacate the order and remand for a new hearing.

Mourar, supra at 599, 504 A.2d at 206.

For the foregoing reasons, we vacate the portion of the judgment of sentence ordering restitution and remand for resentencing in accordance with this Opinion.

Judgment of sentence vacated as to restitution only. The case is remanded for further hearing on appellant’s ability to pay.

Jurisdiction relinquished.

      . 18 Pa.C.S, § 2701(a)(1).

      . Id., § 2701(b).

      . Based on our decision, we need not address appellant’s remaining claims, which are without merit.