Opinion
No. 28 M.D. 2011
01-13-2012
Joseph E. Burkhard, Petitioner v. Commonwealth of Pennsylvania Debra C. Immel (Clerk of Court), Shirley Moore-Smeal (Secretary of Corrections), Jon D. Fisher (Superintendent), Richard Moyer, (Business Office Manager), Cindy Hetrick (Inmate Accounting), Lisa Moffa, (Records Office Supervisor), Respondents
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
The decision in this case was reached prior to January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Before the Court are the preliminary objections in the nature of a demurrer filed by Shirley Moore-Smeal, Jon D. Fisher, Richard Moyer, Cindy Hetrick, and Lisa Moffa (collectively, Department of Corrections (DOC) Respondents). DOC Respondents filed preliminary objections in response to a petition for review filed in this Court's original jurisdiction by Joseph Burkhard (Burkhard), an inmate at SCI-Smithfield. The petition for review in the nature of a complaint in mandamus seeks reimbursement from DOC of funds deducted from Burkhard's inmate account and an order prohibiting DOC from deducting funds from his inmate account in the future. For the reasons that follow, we overrule DOC Respondents' preliminary objections.
At the time that the petition for review was filed, Shirley Moore-Smeal was functioning as DOC's Acting Secretary. At the time of the filing of DOC's preliminary objections, she was functioning as an Executive Deputy Secretary. The other DOC Respondents are current or former officials at State Correctional Institution-Smithfield (SCI-Smithfield), as follows: Jon D. Fisher is Superintendent; Richard Moyer is the Business Manager; Cindy Hetrick was a former Budget Analyst, and Lisa Moffa is the Inmate Records Supervisor.
In his petition for review, Burkhard alleges that he was sentenced on July 29, 1997, in the Court of Common Pleas of Centre County, and that his sentencing order did not include any provisions as to the payment of court costs, fines, or restitution. He further avers that on September 5, 2008, Respondent Debra C. Immel, Clerk of Courts for the Centre County Court of Common Pleas, completed and served on DOC a DC-300B Court Commitment Form, authorizing DOC to deduct from Burkhard's inmate account twenty percent (20%) of all incoming money. DOC, thereafter, deducted funds from Burkhard's inmate account, purportedly pursuant Section 9728(b)(5) of the Sentencing Code, 42 Pa. C.S. § 9728(b)(5), commonly referred to as Act 84. Burkhard maintains that DOC's deductions were not authorized by Act 84 because his sentencing order did not specifically order the assessment of court costs, fines, or restitution against Burkhard. For those reasons, Burkhard requests reimbursement in the amount of $518 and an order prohibiting all Respondents from removing funds from his inmate account in the future.
In response, DOC Respondents filed preliminary objections in the nature of a demurrer pursuant to Pa. R.C.P. No. 1028(a)(4), asserting that Burkhard has no right of reimbursement from DOC Respondents because all deductions made pursuant to Act 84 are forwarded to the sentencing county and any reimbursement, if appropriate, must come from the sentencing county.,
DOC Respondents also preliminarily object on the basis that to the extent that Burkhard seeks to assert civil rights claims pursuant to 42 U.S.C. § 1983, those claims must fail because Burkhard has not alleged personal involvement on the part of any of the DOC Respondents. In Burkhard's response to DOC Respondents' preliminary objections, Burkhard clarifies that he does not raise any Section 1983 civil rights claims, and DOC Respondents do not brief this issue. Therefore, the issue does not appear to be before the Court.
Although mentioned in their brief in support of preliminary objections, DOC Respondents do not aver in their preliminary objections that they are immune for liability in this instance pursuant to Section 9764(c.1)(3) of the Sentencing Code, 42 Pa. C.S. § 9764(c.1)(3), which provides:
[DOC] . . . shall not be liable for compensatory, punitive or other damages for relying in good faith on any sentencing order or court commitment form DC-300B generated from the Common Pleas Criminal Court Case Management System of the unified judicial system or otherwise transmitted to them.For that reason, we make no determination if that section is applicable to this matter, although we note that, at this early stage of the proceedings, it appears that the factual record may not be developed sufficiently to allow the Court determine whether DOC relied in good faith on a sentencing order or court commitment form.
Preliminary objections in the nature of a demurrer test the legal sufficiency of a complaint. Harding v. Stickman, 823 A.2d 1110, 1112 (Pa. Cmwlth. 2003). In ruling on preliminary objections, a court must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. Richardson v. Dep't of Corr., 991 A.2d 394, 395 (Pa. Cmwlth. 2010). To sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them. Spotz v. Commonwealth, 972 A.2d 125, 129 (Pa. Cmwlth. 2009).
Act 84 authorizes DOC to collect court-ordered obligations or costs from an inmate's account and transmit them to the sentencing court, as follows:
The county correctional facility to which the offender has been sentenced or [DOC] shall be authorized to make monetary deductions from inmate personal accounts for the purpose of collecting restitution or any other court-ordered obligation or costs imposed under section 9721(c.1). Any amount deducted shall be transmitted by [DOC] or the county correctional facility to the probation department of the county or other agent designated by the county commissioners of the county with the approval of the president judge of the county in which the offender was convicted. [DOC] shall develop guidelines relating to its responsibilities under this paragraph.42 Pa. C.S. § 9728(b)(5) (emphasis added).
Section 9721(c.1) of the Sentencing Code, 42 Pa. C.S. § 9721(c.1), relating to mandatory payment of costs, provides, in part, that "[i]n addition to the alternatives set forth in subsection (a) of this section the court shall order the defendant to compensate the victim of his criminal conduct for the damage or injury that he sustained."
In support of its preliminary objection, DOC Respondents rely upon our Court's opinion in George v. Beard, 824 A.2d 393 (Pa. Cmwlth.), affirmed, 574 Pa. 407, 831 A.2d 597 (2003). In George, the inmate conceded that the fines and costs at issue were imposed upon him as part of his sentencing order, and the Court, therefore, concluded that the inmate could not seek to enjoin DOC from carrying out its statutorily mandated duty. George, 824 A.2d at 397. The Court then held that because funds deducted from an inmate account are sent to the appropriate county agent for payment of court costs under Section 9728(b)(5) of the Sentencing Code, the inmate was not entitled to reimbursement from DOC.
The case at hand is distinguishable from George, because here Burkhard specifically avers that the sentencing order "did not include any express language assessing any court cost, fines, or restitution." (Petition for Review, ¶10; emphasis in original.) The holding in George that the inmate could not seek reimbursement from DOC was firmly premised on the Court's determination that the funds were deducted by DOC and sent to the county pursuant to Section 9728(b)(5) of the Sentencing Code. At this early stage in the proceedings, it is unclear whether DOC deducted the funds in accordance with Section 9728(b)(5) of the Sentencing Code and actually sent the funds to the county agent in accordance with that section. Given these uncertainties, this Court's opinion in George does not compel the sustaining of preliminary objections in this case. Recognizing that all doubt must be resolved in favor of Burkhard, we cannot conclude with certainty that the law will permit no recovery.
We also note that, in his response to DOC Respondents' preliminary objections, Burkhard states that Act 84's enactment took place subsequent to his sentence. (Burkhard's Response to DOC Respondents' Preliminary Objections at 3). To the extent that Burkhard may be attempting to argue that Act 84 is an ex post facto law, his argument fails. Our Court has consistently held that Act 84 "neither defines a criminal offense committed by a[n] [inmate] nor imposes additional fines and/or punishment against him." George, 824 A.2d at 397 (quoting Cmwlth. v. Ralston, 800 A.2d 1007, 1009 (Pa. Cmwlth. 2002)). The mandate of Act 84 is merely a change in the method of the collection of costs and fines, and thus is procedural in nature. Id. As a procedural provision, it may be applied retroactively. Id. --------
Accordingly, we overrule DOC Respondents' preliminary objections.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 13th day of January, 2012, the Preliminary Objections of Respondents Shirley Moore-Smeal, Jon D. Fisher, Richard Moyer, Cindy Hetrick, and Lisa Moffa are hereby OVERRULED. Respondents shall file an answer to Petitioner's petition for review in the nature of a complaint in mandamus within thirty (30) days of the date of this order.
/s/_________
P. KEVIN BROBSON, Judge