Opinion
No. 22 M.D. 2012
10-11-2012
Michael Siluk, Jr., Petitioner v. The Pennsylvania Department of Public Welfare, and Catherine Merwin, Director of Perry County, Domestic Relation Section, Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
The Pennsylvania Department of Public Welfare (DPW) preliminarily objects to the "Petition for Returne [sic] of Monies Illegally Taken and Transferred to the Pennsylvania Department of Public Welfare" (Petition) filed in this Court's original jurisdiction by Michael Siluk, Jr. (Siluk).
I. Background.
Siluk is currently confined at the State Correctional Institution at Rockview (SCI-Rockview). On March 6, 2000, the Court of Common Pleas of the 41st Judicial District (Perry County Branch) (common pleas court) ordered Siluk to pay monthly child support in the amount of $314.69. On September 16, 2001, Siluk was arrested and incarcerated in the Dauphin County Prison. Siluk notified the Perry County Domestic Relation Section (DRS) of his incarceration the next day. In April 2002, DRS through a federal income tax intercept obtained $2,384.00 from funds directed to Siluk. On August 19, 2002, Catherine Merwin (Merwin), director of DRS, issued an administrative order that enforcement of Siluk's support obligation be suspended until a court determined the matter of his incarceration. On August 20, 2002, the common pleas court issued a similar order.
The amount Siluk asserts is due him is $1,317.87. It is unclear what accounts for the difference from $2,384.00
On February 21, 2003, DRS authorized the transfer of the $2,384.00 received through the tax intercept in April of 2002, to DPW. The refund money was forwarded to DPW to help defray over $60,000 in welfare benefits paid for the care of Siluk's children. On February 25, 2003, Merwin ordered that Siluk's case be closed. On February 27, 2003, the common pleas court entered a similar order.
On October 5, 2004, Siluk petitioned for review and enforcement with the common pleas court. Siluk requested a refund of funds received through the tax intercept because he alleged that enforcement of his child support obligation was suspended at the time the funds were intercepted.
On March 16, 2005, the common pleas court entered the following order:
[T]he Court is hereby ORDERING that the Defendant [Siluk] shall be entitled to a reimbursement of monies paid to DPW, subsequent to the Defendant's [Siluk] incarceration date, September 16, 2001. The Defendant [Siluk] is due a refund of $1,317.87. The Court believes that the Defendant [Siluk] was incarcerated on charges serious enough that they resulted in a sentence of 50 years. The Court is satisfied that from . . . the date of his initial incarceration, the Defendant [Siluk] was not able
to pay support. The Defendant [Siluk] had, and has, no means of earning an income sufficient to justify an order of support.Common Pleas Court Order, March 16, 2005, at 1.
The Domestic Relations Section is therefore DIRECTED to contact the Department of Public Welfare, provide them with a copy of this Order, and take whatever steps are necessary to obtain the Defendant's [Siluk] refund.
On November 21, 2005, after he did not receive the funds, Siluk petitioned for enforcement of the court order against DRS and an immediate refund. DRS preliminarily objected and claimed that it did not have, nor did it ever have possession of the intercepted money and that DPW had possession of state and federal income tax intercepts and that DRS had no authority or control over DPW. DRS further claimed that it had complied with the court order.
On December 29, 2005, the common pleas court dismissed Siluk's petition. Siluk appealed to our Pennsylvania Superior Court which affirmed:
Following our review of the record before us, the parties' briefs, and applicable caselaw, we find no abuse of discretion in the dismissal of Siluk's petition. Notably, contrary to what Siluk claimed in his petition, in her March 15, 2005, order, Judge Morrow did not order DRS to refund Siluk's money, but rather directed the agency to contact DPW and essentially do whatever it could to obtain his refund. Siluk never claimed in his petition that DRS failed to make any effort to recover his refund from DPW . . . just that he had not yet received the refund. As Siluk thus failed to set forth a claim for contempt against DRS, we find that Judge Morrow properly dismissed his petition, and so affirm her order. (Footnotes omitted).Siluk v. Perry County Domestic Relations Section, 913 A.2d 954 (Pa. Super. No. 385 MDA 2006, Filed October 20, 2006) at 3-4.
On November 8, 2006, Siluk petitioned to enforce the court-ordered refund against both DRS and DPW in the common pleas court. On November 28, 2006, the common pleas court dismissed the petition on the basis of the Superior Court order.
On January 1, 2007, Siluk filed a petition for enforcement of the court ordered refund with this Court. On October 12, 2007, this Court transferred jurisdiction to the common pleas court because Siluk essentially sought enforcement of a domestic relations order. On March 18, 2008, the common pleas court sustained DPW's preliminary objection and dismissed the petition because it lacked jurisdiction over DPW.
On July 29, 2008, the common pleas court dismissed with prejudice six separate actions relating to Siluk's attempt to secure the portion of the income tax refund to which he believed he was entitled. The common pleas court ordered Siluk to refrain from filing any additional documents in any of the cases and ordered Siluk to be held in contempt if he did so.
Siluk appealed to our Superior Court which affirmed:
Here, on appeal from the December 29, 2005 order, this Court affirmed the decision of the trial court to dismiss Appellant's [Siluk] petition for enforcement of the order directing a refund. . . . Additionally, it was determined that DRS had complied with the court's order to contact
DPW and to take steps to obtain a refund on behalf of Appellant [Siluk]. . . . This Court dispositively determined that although Appellant [Siluk] had not obtained his refund, it was through no fault of DRS or any employees of Perry County. Thus, the prior determination is final and conclusive as to Appellant's [Siluk] assertions that he was deprived of property without due process of law and that DRS is in 'clear violation of court orders.'Appeal of Michael Siluk, Jr., 15 A.3d 524 (Pa. Super. No. 1903 MDA 2009, Filed October 13, 2010) at 6-7.
In conclusion, this Court's ruling to affirm the trial court on Appellant's [Siluk] issue regarding the refund is the law of the case, and we will not revisit this claim. . . . While we understand Appellant's [Siluk] frustration, no relief can be afforded. (Citations omitted).
II. Petition before this Court.
In his petition for review presently before this Court, Siluk alleges:
27. The Petitioner [Siluk] has now been illegally deprived of his Constitutionally Protected Property for almost ten years total, and almost seven years since the court entitled him to a refund by DRS's inability to correct there [sic] illegal actions, and the DPW's refusal to refund the monies over paided [sic] them through DRS's illegal actions. Further Petitioner [Siluk] has lost almost ten years of interest on his money, and has spent $350.00, in filing fees, 33.16 on carbon paper, $102.78 on mail, 58.63, on paper, and 104.70 on copies, attempting to retrieve his property illegally taken from him.
28. The Petitioner [Siluk] has been through every state court at least once, and even attempted to retrieve his money in federal court. Basically the Common Pleas Court refuses to order DRS to refund the money and hold them responsible for there [sic] own illegal actions,
because DRS says they don't have the money DPW dose [sic]. The Common Pleas Court can't order DPW to refund the money because DPW is under the exclusive jurisdiction of this Court. The Superior Court has held that DRS is not in contempt of court because DRS has contacted DPW in a half hearted [sic] attempt to retrieve the money. The Supreme Court of Pennsylvania just dismissed Petitioner's [Siluk] action in that Court with no reason given. The Federal Court held that they are barred from litigating the matter, and this Court has previously held the matter should be handled in the Common Pleas Court, and that Court refuses to deal with the issue, and as noted forbid [sic] any further actions in that court dealing with this matter.Petition for Returne [sic] of Monies Illegally Taken and Transferred to the Pennsylvania Department of Public Welfare, January 5, 2012, Paragraph Nos. 27-29 at 5-6.
29. Under the present circumstances with the Common Pleas Court's refusal to hold DRS responsible for it's [sic] illegal actions, and holding no jurisdiction over the DPW, the only way Petitioner [Siluk] would eveer [sic] be able to retrieve his money is by this court ordering DPW to refund the illegal over payment to Petitioner [Siluk].
Siluk seeks a refund of $1,317.87 plus interest since 2002 plus costs of $649.27.
III. DPW Preliminary Objections
DPW preliminarily objects pursuant to Pa.R.C.P. No. 1028(a)(1) and (4). DPW asserts that this Court lacks subject matter jurisdiction because the March 16, 2005, order by the common pleas court may not be enforced against DPW because DPW was not a party to that proceeding, this litigation is barred by res judicata, and that income tax refund intercepts and distribution to DPW for past welfare benefits paid for the care of Siluk's children are required by law to be paid to DPW, a child support order may not be retroactively modified absent a petition for modification, and incarceration, standing alone, is not a sufficient ground for a child support order to be modified or terminated.
Neither party specifies what these benefits included.
In considering preliminary objections, this Court must consider as true all well-pleaded material facts set forth in the petitioner's petition and all reasonable inferences that may be drawn from those facts. Mulholland v. Pittsburgh National Bank, 405 Pa. 268, 271-272, 174 A.2d 861, 863 (1961). Preliminary objections should be sustained only in cases clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996).
A. Res Judicata.
Initially, DPW asserts that Siluk's petition is barred by res judicata because of the previous litigation and final resolution regarding the interception of Siluk's 2002 income tax refund and enforcement of the March 2005 court order.
In Weney v. Workers' Compensation Appeal Board (Mac Sprinkler Systems, Inc.), 960 A.2d 949 (Pa. Cmwlth. 2008), appeal denied, 601 Pa. 691, 971 A.2d 494 (2009), this Court recounted the criteria necessary to establish res judicata and collateral estoppel:
Initially, we note that technical res judicata and collateral estoppel are both encompassed within the parent doctrine of res judicata, which 'prevents the relitigation of claims and issues in subsequent proceedings.' Henion [v. Workers' Compensation Appeal Board (Firpo & Sons, Inc.)], 776 A.2d at 365 [(Pa. Cmwlth. 2001)].Weney, 960 A.2d at 954 (emphasis in original and added).
Under the doctrine of technical res judicata, often referred to as claim preclusion, 'when a final judgment on the merits exists, a future suit between the parties on the same cause of action is precluded.' Id. In order for technical res judicata to apply, there must be: '(1) identity of the thing sued upon or for; (2) identity of the cause of action; (3) identity of the persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or sued.' Id. at 366. Technical res judicata may be applied to bar 'claims that were actually litigated as well as those matters that should have been litigated.' Id. . . . . 'Generally, causes of action are identical when the subject matter and the ultimate issues are the same in both the old and the new proceedings.' Id.
The doctrine of collateral estoppel often referred to as issue preclusion, 'is designed to prevent relitigation of an issue in a later action, despite the fact that the later action is based on a cause of action different from the one previously litigated.' Pucci v. Workers' Compensation Appeal Board (Woodville State Hosp.), 707 A.2d 646, 647-48 (Pa. Cmwlth. 1998). Collateral estoppel applies where:
(1) the issue decided in the prior case is identical to the one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the doctrine is asserted was a party or in privity with the party in the prior case and had a full and fair opportunity to litigate the issue; and (4) the determination in the prior proceeding was essential to the judgment.
Id. at 648.
Here, Siluk first sought enforcement of the March 16, 2005, common pleas court order when he petitioned the common pleas court on November 21, 2005. The common pleas court dismissed the petition. The Superior Court affirmed. After that, Siluk continued to file numerous appeals and petitions. The common pleas court dismissed with prejudice six separate actions related to Siluk's attempt to obtain a refund of the $1,317.87 seized as a result of the income tax return intercept. The Superior Court affirmed.
In the petition before this Court, Siluk requests that this Court order DPW to release the funds that were intercepted. Most of the proceedings have involved Siluk and DRS. On March 18, 2008, the common pleas court sustained DPW's preliminary objections to Siluk's petition for enforcement and dismissed the petition because the common pleas court lacked jurisdiction over DPW.
There does not appear to be a prior proceeding among the many instituted by Siluk, where there was a final judgment on the merits involving DPW. Consequently, technical res judicata or claim preclusion does not apply. Similarly, with respect to collateral estoppel, there was never a final judgment on the merits with respect to Siluk's attempt to force DPW to relinquish the funds. As a result collateral estoppel does not apply. This Court must overrule this preliminary objection.
B. Subject Matter Jurisdiction.
Next, DPW preliminarily objects on the basis that this Court lacks subject matter jurisdiction because Siluk is attempting to enforce a common pleas court order against a state administrative agency. DPW argues that the court of common pleas lacks jurisdiction over executive agencies and since, in this case, the common pleas court did not have jurisdiction over it, DPW was not, and could not have been, a party to that order.
In response, Siluk argues that even though the common pleas court could not order DPW to refund the money, it was within its authority to determine that the money belonged to Siluk and that he was entitled to a reimbursement. Siluk asserts that this Court has jurisdiction to order DPW to return the money. Because the common pleas court lacked jurisdiction over DPW, Siluk argues that he had no choice but to petition this Court for the return of his property.
Neither party cites to any statute, case law, or regulation to support their respective positions. Given the strict requirements for granting preliminary objections, this Court overrules this preliminary objection.
DPW does cite to Section 933 of the Judicial Code, 42 Pa.C.S. §933. Section 933 does not really apply as it sets forth where the common pleas court has jurisdiction to hear appeals from government agencies. At issue here is not an appeal from an order of DPW. --------
C. Interception of Income Tax Refunds.
DPW next preliminarily objects on the basis that Siluk fails to state a claim upon which relief may be granted because income tax refunds are required to be intercepted when a child support obligor owes past due child support.
Section 464(a)(1) of the Social Security Act, 42 U.S.C. §664(a)(1), provides:
Upon receiving notice from a State agency administering a plan approved under this part that a named individual owes past-due support which has been assigned to such State pursuant to section 608(a)(3) of this title or section 671(a)(17) of this title, the Secretary of the Treasury shall determine whether any amounts, as refunds of Federal Taxes paid, are payable to such individual (regardless of whether such individual filed a tax return as a married or unmarried individual). If the Secretary of the Treasury finds that any such amount is payable, he shall withhold from such refunds an amount equal to the past-due support, shall concurrently send notice to such individual that the withholding has been made (including in or with such notice a notification to any other person who may have filed a joint return with such individual of the steps which such other person may take in order to secure his or her proper share of the refund), and shall pay such amount to the State agency (together with notice of the individual's home address) for distribution in accordance with section 657 of this title. This subsection may be executed by the disbursing official of the Department of the Treasury.
Section 4374(d)(1) of the Domestic Relations Code (Code), 23 Pa.C.S. §4374(d)(1), provides:
Arrearages collected through use of the Internal Revenue Service Tax Refund Offset Program for a family receiving cash assistance shall be retained by the Commonwealth to the extent past due support has been assigned to the department as a condition of receiving assistance. Arrearages collected through use of the Internal Revenue Service Tax Refund Offset Program for a family that formerly received cash assistance shall first be applied to the monthly support obligation, and the balance shall be applied to arrears owed the family, including assignments of arrearages that accrued before
the family received assistance from the Commonwealth and that were executed between October 1, 1997, and September 30, 2009. Any remaining arrearages shall be paid to the department. The department shall pay to the Federal Government the Federal share of the amounts so retained. In no event shall the total of amounts paid to the Federal Government and retained by the department exceed the total of the amount of cash assistance paid to the family by the Commonwealth. To the extent that the amounts collected exceed the amount retained, the department shall pay the excess to the family.
Siluk asserts in his petition for review that he is entitled to a refund of the federal income intercept because his child support was suspended retroactive to his September 16, 2001, incarceration date.
Section 4352(e) of the Code, 23 Pa.C.S. §4352(e), provides:
No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification. If a petition for modification was filed, modification may be applied to the period beginning on the date that notice of such petition was given, either directly or through the appropriate agent, to the obligee or, where the obligee was the petitioner, to the obligor. However, modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition. . . . (Emphasis added).
DPW asserts that Siluk does not allege in his petition for review that he petitioned to modify his support obligation at the time of his incarceration. Consequently, DPW argues that Siluk cannot now receive any of the intercepted funds because under Section 4352(e) of the Code, 23 Pa.C.S. §4352(e), no court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there was a pending modification petition. Because there was no modification petition pending at the time of the intercept, Siluk is not entitled to it.
Siluk states in his petition for review, "On September 16, 2001, Petitioner [Siluk] was incarcerated in Dauphin County Prison on Criminal Charges, Petitioner [Siluk] notified Domestic Relations of this within day [sic] through his wife Lena Siluk, and Domestic Relations chose not to do anything until August 19, 2002." Petition, Paragraph No. 5 at 2. In his brief Siluk states that DRS and the common pleas court informed him that if anything changed with his work or income or any other problem to notify DRS and DRS "would take care of it." Petitioner's Brief at 13. Siluk asserts that when he was incarcerated, he and his wife notified DRS and that this notification served as a petition for modification.
It is unclear whether Siluk petitioned to modify his support obligation. At some point his support order was modified by the common pleas court which determined that he was no longer obligated to pay child support because of his incarceration. Since DPW's preliminary objection hinges on the failure of Siluk to petition to modify his support obligation, this Court must overrule this preliminary objection on the basis that it is not clear that Siluk failed to file a modification petition.
D. Modification.
Finally, DPW preliminarily objects on the basis that Siluk fails to state a claim upon which relief may be granted because Siluk's incarceration was not a material and substantial change in circumstances that provided a sufficient ground for modification or termination of a child support order.
For support DPW cites to Yerkes v. Yerkes, 573 Pa. 294, 824 A.2d 1189 (2003). In Yerkes, our Pennsylvania Supreme Court affirmed the Superior Court's order and held that incarceration standing alone did not provide sufficient grounds for modification or termination of a child support order.
Although this case has a complicated and confusing history, the support order was apparently modified in 2002. The time to challenge that order is long past. Further, DPW was not a party to that proceeding. DPW may not attempt to appeal the modification order through preliminary objections to Siluk's petition. This Court overrules this preliminary objection.
Accordingly, this Court is constrained to overrule the preliminary objections of DPW. DPW is directed to file an answer within thirty days of the date of this order.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 11th day of October, 2012, the preliminary objections of the Pennsylvania Department of Welfare are overruled. The Pennsylvania Department of Public Welfare is directed to file an answer within thirty days of the date of this order.
/s/_________
BERNARD L. McGINLEY, Judge