Johnson, A., Aplt. v. Wetzel, J.

[J-99-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

AQUIL JOHNSON, : No. 18 EAP 2019
:
Appellant : Appeal from the Order of the Order
: entered on 6/3/19 in the Commonwealth
: Court at No. 497 MD 2018
v. :
:
:
JOHN WETZEL, SECRETARY PA, :
D.O.C., MARK GARMAN, SUPER., S.C.I. :
ROCKVIEW ET. AL., OFFICERS, :
AGENTS, SERVANTS, EMPLOYEES :
AND ATTORNEYS, :
:
Appellees : SUBMITTED: September 30, 2020

OPINION

CHIEF JUSTICE SAYLOR DECIDED: October 1, 2020

This is a direct appeal from a Commonwealth Court order dismissing Appellant’s

amended petition for review. In the petition, Appellant claimed he was entitled to a

refund of monies deducted from his inmate account pursuant to Act 84 because no

procedural safeguards were in place when the deductions began. Recent decisions by

this Court and the Third Circuit Court of Appeals confirm that, under the Due Process

Clause of the Fourteenth Amendment, certain safeguards must be applied before the

first Act 84 deduction is made in connection with a given criminal sentence. See Bundy

v. Wetzel, 646 Pa. 248, 261, 184 A.3d 551, 558-59 (2018); Montanez v. Secretary Pa.

DOC, 773 F.3d 472, 486 (3d Cir. 2014). The issue here is whether relief is available

where the first deduction was made before those decisions were announced.
 I.

In March 2013, Appellant was sentenced in two criminal matters to an aggregate

term of approximately 20-to-40 years’ incarceration. As part of the sentences, Appellant

was required to pay a total of $1,166 in costs and contributions to the Crime Victims’

Compensation Fund (the “Victims’ Fund”).1 In light of these financial obligations, the

Department of Corrections began deducting monies from Appellant’s inmate account

pursuant to Section 9728(b)(5) of the Sentencing Code. See 42 Pa.C.S. §9728(b)(5)

(authorizing such deductions), quoted in Bundy, 646 Pa. 252-53, 184 A.3d at 553-54.

These withdrawals are known as Act 84 deductions because the provision authorizing

them was added to Section 9728 by Act 84 of 1998. See Act of June 18, 1998, P.L.

640, No. 84, §4; Bundy, 646 Pa. at 253, 184 A.3d at 554. The Department made the

first withdrawal in June 2013, without notifying Appellant in advance.

In July 2013, upon learning of the deduction, Appellant filed an internal grievance

questioning whether it was lawful. A prison counselor responded by stating that the

deduction was, indeed, lawful in light of Act 84 and the financial responsibilities imposed

on Appellant as part of his criminal sentences. The prison counselor added that the

deductions would cease once Appellant’s monetary obligations were paid in full.

In 2014, the federal court in Montanez held that, under the Due Process Clause,

administrative pre-deprivation process was required. In particular, prior to the first Act

84 deduction the Department must notify the affected inmate of: the Department’s

policy concerning Act 84 deductions; the amount of his total obligation to the

1 See Commonwealth v. Johnson, No. CP-51-CR-4929-2007, Sentencing Order (C.P.
Phila. Mar. 15, 2013) (showing a balance due of $448.50, all of it in court costs);
Commonwealth v. Johnson, No. CP-51-CR-1587-2009, Sentencing Order (C.P. Phila.
Mar. 15, 2013) (showing a balance due of $717.50, all in court costs except $60, which
is owed to the Victims’ Fund).

[J-99-2020] - 2
Commonwealth; the rate at which funds are to be deducted; and which funds will be

subject to such withdrawals. Under Montanez, the Department must also give the

inmate (again, prior to the first deduction) a reasonable opportunity to object as a

means of avoiding any potential errors in the application of the Department’s policy.

See Montanez, 773 F.3d 486.

Four years later, in 2018, this Court addressed the same due process issue in

Bundy, and it reached a holding consistent with Montanez. See Bundy, 646 Pa. at 261,

184 A.3d at 558. Bundy observed that administrative pre-deprivation procedures are

useful because, as Montanez had observed, they can help prevent errors before they

occur. See id. at 258, 184 A.3d at 557 (recognizing a “general preference that

procedural safeguards apply in the pre-deprivation timeframe”).2 The Bundy Court also

noted that, in circumstances where procedural safeguards are not feasible in the pre-

deprivation timeframe, the availability of a meaningful post-deprivation remedy satisfies

the Due Process Clause. See id. at 258-59, 184 A.3d at 557 (citing cases).

Shortly after Bundy was issued, Appellant filed a grievance complaining that he

never received pre-deprivation process as required by Bundy, and asking for a refund of

all funds the Department had deducted since 2013, which totaled approximately $860.

The Department denied the request for monetary relief, noting that Appellant had failed

to provide documentation demonstrating that an assessment notice the Department

previously issued relative to his financial obligations was in error. Still, the Department

stated it would suspend further deductions for three weeks in order to give Appellant a

2 In terms of Act 84 deductions, Bundy enumerated certain types of errors that could
potentially be avoided, including: deductions from funds outside Act 84’s reach (such
as veterans’ benefits and social security benefits); withdrawals predicated on an
erroneous financial obligation; deductions from the wrong inmate’s account; and
deductions inconsistent with an installment plan approved by the sentencing court. See
id. at 260, 184 A.3d at 558 (citing cases and statutes).

[J-99-2020] - 3
chance to provide such documentation. Appellant did not forward any such

documentation. Instead, he lodged an administrative appeal, expressing that the

suggested post-deprivation remedy was insufficient in light of Bundy. The Department

denied the appeal.

Appellant then filed a petition for review in the Commonwealth Court, directed to

its original jurisdiction, and naming as respondents various employees of the

Department.3 In his petition, Appellant stated a claim for replevin based on the

Department’s failure to comply with the procedures mandated in Bundy. He thus sought

to recover the $860 the Department had deducted from his inmate account, together

with interest and fees. He also requested nominal damages.4

Separately, Appellant alleged his due process rights were violated in that he

should have received an administrative ability-to-pay hearing predicated on an alleged

change in his circumstances. In this respect, Appellant referenced a passage in Bundy

which clarified that, under prevailing Pennsylvania law as established by the

Commonwealth Court, prisoners are entitled to an ability-to-pay hearing with regard to

Act 84 deductions when there has been a material change of circumstances such as a

threat of additional confinement, or increased supervision, as a result of unpaid financial

obligations. Bundy noted that, under the Commonwealth Court’s rationale, a valid issue

arises as to whether that rule should be extended to encompass a situation where the

Act 84 deductions interfere with the prisoner’s ability to obtain meaningful merits review

of the financial aspects of his sentence, his ability to litigate a PCRA petition, or the like.

See Bundy, 646 Pa. at 261-62, 184 A.3d at 559.

3 For convenience, the respondents (Appellees herein) will be referred to collectively as
the Department.

4 The Commonwealth Court granted Appellant’s request to proceed in forma pauperis.

[J-99-2020] - 4
 After the Department preliminarily objected, Appellant was granted leave to file

an amended petition. In it, he incorporated by reference the allegations in his first

petition, and added a new cause of action purportedly sounding in negligence.

Specifically, Appellant alleged that the prison counselor had negligently misinformed

him in 2013 that the Act 84 deductions were lawful. He averred, more generally, that

the Department was negligent in its administration of his inmate account because it

withdrew funds without giving him the process which was due. In terms of relief,

Appellant again asked for a refund of the monies the Department had withdrawn from

his account, together with interest, fees, and nominal damages.

The Department filed preliminarily objections in the nature of a demurrer. It

maintained that Act 84 gave it the authority to effectuate the deductions based on the

sentencing orders, and that, in light of Buck v. Beard, 583 Pa. 431, 879 A.2d 157

(2005), the Department was not required to provide an ability-to-pay hearing before the

first deduction.

Insofar as Appellant’s claim pertained to alleged negligence, the Department

made several arguments. First, it stated that the two-year limitations period pertaining

to negligence claims had begun to run when the first deduction was made in 2013, and

that it expired well before Appellant filed his petition for review in 2018. 5 In any event,

the Department continued, it was not clearly established under Pennsylvania law in

2013 – before Montanez or Bundy were decided – that the Department had a

constitutional obligation to implement procedural safeguards before the first Act 84

deduction was effectuated. Thus, according to the Department, there was no standard

5 Referencing Davis v. Commonwealth, 660 A.2d 157 (Pa. Cmwlth. 1995), the
Department asserted that an affirmative defense based on the statute of limitations may
be raised in preliminary objections where it appears on the face of the pleading to which
objections are being raised. See id. at 159 n.2.

[J-99-2020] - 5
of care pursuant to which the Department was required to afford pre-deprivation

process, and, moreover, the Department was immunized from liability under the

doctrine of qualified immunity, which shields government officials from lawsuits based

on allegedly unconstitutional actions so long as those officials did not violate individual

rights which were clearly established at the time, and about which a reasonable

government official would have known. See Pearson v. Callahan, 555 U.S. 223, 231,

129 S. Ct. 808, 815 (2009); Montanez, 773 F.3d at 487-88. Finally, the Department

contended that, in essence, Appellant’s allegations referred to intentional, not negligent,

conduct – specifically, the Department’s intentional withdrawal of money from his

account, and the prison counselor’s intentional statement to Appellant in 2013 that the

deductions were lawful – and that recovery for intentional conduct by the state is

precluded under the doctrine of sovereign immunity.

Appellant filed preliminary objections to the Department’s preliminary objections,

asserting that: the two-year time bar for negligence claims did not apply because the

Department was guilty of fraudulent concealment; qualified immunity was inapplicable

because Bundy’s due process requirements were clearly established in 2013 by various

judicial decisions; and the Department’s own internal policy statement, entitled DC-

ADM-005 (relating to the collection of inmate debts), recognized as early as 2007 that

the Department was supposed to give him, prior to the first deduction, a memo

informing him of the imminent deductions together with a copy of the official court

documents relied on for such deductions.6

In a non-precedential decision, the Commonwealth Court sustained the

Department’s preliminary objections and dismissed the petition for review. See

6Notably, Appellant did not aver that the policy document at that time required the
Department to give the inmate an opportunity to object to the deductions.

[J-99-2020] - 6
Johnson v. Dep’t of Corr., No. 497 M.D. 2018, 2019 WL 2400295, at *12 (Pa. Cmwlth.

June 3, 2019). The court initially deemed the amended petition’s negligence assertion

to have replaced the replevin claim in the initial petition. See id. at *5. The

Commonwealth Court ultimately dismissed the purported negligence claim on the

grounds asserted by the Department, i.e., that Appellant’s alleged harm stemmed

entirely from intentional conduct. See id.

The court then turned to what it termed the “Act 84 claims.” Although Appellant

had not raised any “Act 84 claims” as such, the phrase seems to be shorthand for a

contention that the Act 84 deductions were invalid. In this regard, the court’s reference

to additional claims evidently stemmed from the amended petition’s inclusion of various

allegations under the headings, “Questions Involved,” and “Allegations Common to All

Claims.” These assertions can be read as alleging that: the Department did not provide

Appellant with a signed court order imposing financial responsibilities as part of his

sentence; the Department did not hold an ability-to-pay hearing as required when there

has been a change in circumstances – such as a threat of additional confinement or

increased conditions of supervision as a result of unpaid financial obligations – or when

the Act 84 deductions will materially hinder the prisoner’s ability to obtain meaningful

merits review of his sentence; and the Department violated due process when it made

Act 84 deductions without pre-deprivation notice and an opportunity to be heard.

As to these contentions, the court first concluded that the costs included as part

of Appellant’s sentences did not depend on a signed court order because they were

imposed by statutes stating that no such order is needed, see id. at *6 & n.10 (quoting

42 Pa.C.S. §9721(c.1), 18 P.S. §11.1101). The court additionally expressed that

Appellant did not allege that he had experienced a relevant change of circumstances,

[J-99-2020] - 7
and his PCRA docket sheets showed he was granted in forma pauperis status and was

actively litigating his post-conviction matters. See id. at *7 & n.13.7

As for the due process claim, the court initially rejected the Department’s

qualified immunity argument, suggesting that several pre-Montanez Third Circuit

decisions had clarified that, when pre-deprivation process can effectively prevent errors,

that process is constitutionally required. See id. at *9. With that said, however, the

court added that the due process claim accrued when the Department made its first Act

84 deduction from Appellant’s account in 2013, with the result that the two-year statute

of limitations had expired by the time Appellant filed his petition for review in 2018, see

id. at *8-*10. See generally Morgalo v. Gorniak, 134 A.3d 1139, 1147-48 (Pa. Cmwlth.

2016) (holding that the two-year limitation period of Section 5524(6) of the Judicial Code

applies to Act 84 deductions). In this latter regard, the court rejected Appellant’s

fraudulent-concealment argument on the basis that it implicates an inquiry into whether

the plaintiff was reasonably diligent in informing himself of the facts on which he based

his right to recover. The court determined that Appellant did not exercise adequate

diligence as he could have inquired into the state of the law himself. To bolster its point,

the court noted that Appellant had found all the relevant case precedent and

departmental policy documents for purposes of the present litigation, and these existed

and could just as easily have been found by him in 2013 when he received the

counselor’s response. See id. at *11.

7 To the extent Appellant argued that Section 9726 of the Sentencing Code required the
common pleas court to consider his ability to pay, see 42 Pa.C.S. §9726(c)(1), the
intermediate court pointed out that that provision does not impose any obligation on the
Department, and moreover, it only applies to fines, whereas Appellant’s debt arose from
court costs and a Victims’ Fund assessment. See Johnson, 2019 WL 2400295, at *8.

[J-99-2020] - 8
 Appellant lodged a direct appeal in this Court, raising a number of issues relating

to the purported negligence cause of action and the due process claim, as well as his

alleged entitlement to an administrative ability-to-pay hearing. He does not presently

challenge the Commonwealth Court’s determination that the negligence claim replaced

the replevin cause of action appearing in the initial petition. At any rate, this Court

observed in Bundy that replevin has been abolished in the context of an original-

jurisdiction petition for review relative to a determination of a government unit. See

Pa.R.A.P. 1502; Bundy, 646 Pa. at 255, 184 A.3d at 555. As explained below, the

negligence and due process claims are one and the same. We will address those first,

and then consider Appellant’s argument relating to an ability-to-pay hearing.

II.

We will initially consider the purported negligence cause of action, which was set

forth in the amended petition as follows:

20. Petitioner is an adult person being held by [the Department]. As such,
petitioner has personal private property containing money which is in the
care, custody and control of the respondents.

21. Accordingly, respondents owed the petitioner a duty to exercise
reasonable care and diligence when handling the petitioner’s inmate
account which consisted of his personal private property.

22. At all relevant times to this action the respondents owed a duty to
maintain, regulate and operate the petitioner’s inmate account with
ordinary care and diligence in a manner consistent with Federal Law and
D.O.C. Policy.

23. Respondents breached their duties by failing to exercise ordinary care
and reasonable diligence in maintaining, regulating and operating the
petition’s inmate account including: (a) Failing to give the petitioner notice
and an opportunity to object to the Act 84 deductions before the first
deduction; (b) failing to follow Federal and State Law and D.O.C. Policy
when operating the petitioner’s account by failing to give notice prior to the

[J-99-2020] - 9
 first deduction; (c) Failing to follow D.O.C. Policy DC-ADM 005 Sect.
3.A.2.d. when operating the petitioner’s inmate account by failing to inform
the petitioner of the deductions and his right to appeal the deductions.

24. Despite the fact that respondents knew that notice and an opportunity
to object was required before making the first deduction (which is admitted
by the respondents in their Grievance response, see, PFR-Exhibit-GR) the
respondents proceeded to and continued to negligently deduct funds from
petitioner’s inmate account and continues [sic] to deduct funds till this day.

25. As a direct and proximate consequence of respondents negligent
handling and operating of the petitioner’s inmate account, the petitioner
suffered injury and damages in the form of a complete 14th Amendment
procedural due process violation which further resulted in actual monetary
loss in excess of $859.80.
Johnson v. Wetzel, No. 497 MD 2018, Amended Petition for Review at ¶¶20-25 (Pa.

Cmwlth.) (emphasis added).

Certain features of these allegations are worth highlighting. First, the sum and

substance of the complaint as a whole, including the above allegations, is that the

Department violated Appellant’s procedural due process rights based on intentional

conduct. Accord Brief for Appellees at 9 (observing that the transfer of funds from

Appellant’s account to satisfy court costs “was intentional, not negligent, conduct,” and

“[t]he failure to provide notice before commencing Act 84 deductions, does not render it

a negligent taking”). Simply labeling the claim as one sounding in negligence does not

make it so where the harm is alleged to have been caused by the Department’s actions

in deducting monies from Appellant’s account pursuant to Act 84 and then telling him

after the fact that the deductions were authorized by that statute.

This is not a situation such as that which arose in Parratt v. Taylor, 451 U.S. 527,

101 S. Ct. 1908 (1981), in which a prison employee’s negligent handling of an inmate’s

personal property led to that property being lost or destroyed. See id. at 530, 101 S. Ct.

at 1910. Indeed, such negligent conduct does not implicate the Due Process Clause.

[J-99-2020] - 10
See Daniels v. Williams, 474 U.S. 327, 328, 106 S. Ct. 662, 663 (1986). Rather, and as

can be seen from the complaint as a whole, this case involves an intentional monetary

deduction from Appellant’s account pursuant to statutory authority which is only

contested on the basis of the alleged due process violation.8 Put differently, the

conduct which is alleged to have fallen below a particular standard of care only relates

to the lack of pre-deprivation process, and not to the deprivation itself.

Even addressing the above negligence claim in isolation, it is internally

inconsistent because Appellant avers that corrections employees “negligently deducted

funds” from his account at a time when “they knew that notice and an opportunity to

object was required before making the first deduction.” We conclude, then, that the

claim is properly read as alleging a deprivation of property through intentional conduct.

That being the case, sovereign immunity shields the Department from liability. See PA.

CONST. art. I, §11; 1 Pa.C.S. §2310; Sutton v. Bickell, ___ Pa. ___, ___, 220 A.3d 1027,

1035 (2019) (explaining that sovereign immunity protects the Department from liability in

tort for intentional conduct undertaken within the scope of the party’s employment (citing

Justice v. Lombardo, ___, Pa. ___, ___, 208 A.3d 1057, 1067 (2019))).

It may also be recognized that the harm alleged by Appellant – a loss of money

from his account – constitutes an injury of which he admits he was aware as early as

July 2013. See Johnson v. Wetzel, No. 497 MD 2018, First Petition for Review at ¶13

(Pa. Cmwlth.). As such, the two-year statute of limitations applicable to Act 84

deductions, see generally Morgalo, 134 A.3d at 1147 (analyzing 42 Pa.C.S. §5524(6)),

had expired well before Appellant commenced this litigation in 2018, as the Department

pointed out in its demurrer. See Johnson v. Wetzel, No. 497 MD 2018, Respondents’

8Appellant did not allege that the monies in question were outside Act 84’s reach based
on factors such as those identified in Bundy. See supra note 2.

[J-99-2020] - 11
Preliminary Objections to Petitioner’s Amended Petition for Review at ¶¶19-23 (Pa.

Cmwlth.).

Although Appellant argued that the limitations period was tolled in light of the

Department’s alleged fraudulent concealment, see Johnson v. Wetzel, No. 497 MD

2018, Petitioner’s Answer to Respondents’ Preliminary Objections at ¶¶12-24 (Pa.

Cmwlth.), that doctrine ordinarily pertains to conduct on the part of the defendant which

“causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the

facts.” Fine v. Checcio, 582 Pa. 253, 271, 870 A.2d 850, 860 (2005); accord Appeal of

Sepko, 479 A.2d 665, 667 (Pa. Cmwlth. 1984); 1A Stuart M. Speiser et al., AMERICAN

LAW OF TORTS §5:31 n.67 (1983 & Supp. 2020) (“Generally, the misrepresentations

relied on must be misrepresentations of fact and not misrepresentations of law since all

are presumed to know the law.” (citation omitted)). This Court has never applied it to an

assertion that the defendant misrepresented the current state of the law.9

In all events, Appellant included within the purported negligence contention an

averment that the Department “knew that notice and an opportunity to object was

required before making the first deduction.” This again clarifies that Appellant’s cause

of action does not sound in negligence, or even in an intentional tort such as conversion

9 Some states, proceeding under an “estoppel” or “good cause” rubric, have allowed an
untimely filing where the plaintiff was misled as to the statute of limitations. See, e.g.,
Ginns v. Savage, 393 P.2d 689, 691-92 (Cal. 1964); Tex. Emp’rs’ Ins. Ass’n v. Dickson,
489 S.W.2d 655, 657 (Tex. Civ. App. 1972). Here, however, Appellant does not allege
that the Department misrepresented the statute of limitations, and it is uncontested that
he became aware of his underlying injury, i.e., the deduction of money from his account,
almost immediately after it occurred. Moreover, inmates are not assumed to be
ignorant of the law particularly as it relates to the satisfaction of monetary obligations
imposed at sentencing. See Buck, 583 Pa. at 436, 879 A.2d at 160 (explaining that,
because the prisoner plaintiff was convicted after Act 84 went into effect, he was on
notice of the Department’s statutory authority to deduct funds from his account).

[J-99-2020] - 12
that he has failed to assert – but in procedural due process. The question, then, is

whether Appellant is entitled to relief on his due process claim.

III.

To review, prisoners are entitled, under the Due Process Clause of the

Fourteenth Amendment, to notice of certain items and a reasonable opportunity to

object before the first Act 84 deduction is made. These items include the Department’s

Act 84 deduction policy, the prisoner’s total monetary obligation to the Commonwealth,

the rate at which funds will be deducted from his account, and the funds which will be

subject to withdrawals. See Bundy, 646 Pa. at 261, 184 A.3d at 558. This case differs

from Bundy in that the first Act 84 deduction occurred before either Montanez or Bundy

was decided. Until those decisions were announced, no reported judicial decision had

held that every inmate in the Department’s custody from whose account Act 84

deductions would be made was entitled to such process.

Still, individuals in Appellant’s position are placed in a difficult position as their

first Act 84 deduction occurred before the holdings in Bundy and Montanez were

announced. Plainly, such individuals could not have relied on those decisions as a

basis to demand pre-deprivation procedural safeguards. These individuals, moreover,

may have had grounds such as those outlined in Bundy to challenge the validity of the

Department’s deduction plan.

With the above in mind we note that, when pre-deprivation process is not feasible

– meaning that the state is not in a position to provide it – “the availability of a

meaningful post-deprivation remedy satisfies due process.” Bundy, 646 Pa. at 258-59,

184 A.3d at 557 (citing Zinermon v. Burch, 494 U.S. 113, 128, 110 S. Ct. 975, 984-85

(1990)). We now hold that that aspect of Bundy applies to inmates whose accounts

were subject to Act 84 deductions without the benefit of pre-deprivation safeguards.

[J-99-2020] - 13
Thus, due process requires that the Department, in response to an administrative

grievance which accurately recites that no Bundy process was afforded prior to the first

Act 84 deduction, must give the grievant notice of the items required by Bundy and a

reasonable opportunity to explain why the past and/or intended deductions should not

take place notwithstanding the dictates of Act 84. Any meritorious challenge along

these lines would then implicate the substantive remedy of restoring the prisoner’s

wrongly-deducted funds to his or her account.10

IV.

We now apply the above holding to this case. The record reflects that, in

response to Appellant’s grievance in June 2018 concerning the lack of pre-deprivation

process, SCI-Rockview suspended deductions for three weeks to give Appellant an

opportunity to challenge their the legitimacy. See Johnson v. Wetzel, No. 497 MD 2018,

First Petition for Review at Exh. GR (Pa. Cmwlth.) (Grievance Response No. 742476).

Although this type of temporary suspension is consistent with the “fundamental [due

process] requirement” that the individual have an “opportunity to be heard at a

meaningful time and in a meaningful manner,” Commonwealth v. Maldonado, 576 Pa.

101, 108, 838 A.2d 710, 714 (2003) (quoting Mathews v. Eldridge, 424 U.S. 319, 333,

96 S. Ct. 893, 902 (1976)), the record does not clarify whether all of the information

contemplated by Bundy and Montanez was given to Appellant when the deductions

were temporarily suspended. As recited above, these items include the Department’s

Act 84 deduction policy; the amount of Appellant’s total financial obligation to the

government; the rate at which funds will be deducted; and the identity of the funds

10 To clarify, for a challenge to be meritorious, it is not enough that pre-deprivation
procedures were not afforded to the grievant. He must also identify some substantive
basis to conclude the Act 84 deductions were, or would be, contrary to law.

[J-99-2020] - 14
subject to withdrawal. Thus, we will remand the matter for further factual development

on this topic and an appropriate procedural remedy if one is required.

V.

Finally, Appellant renews his argument that he was entitled to an administrative

ability-to-pay hearing before the Department. He faults the Commonwealth Court for

focusing solely on whether he might be subject to additional confinement or increased

supervision as a result of not meeting his financial obligations. Appellant posits that this

type of issue is distinct from the other concern expressed in Bundy that could support

entitlement to an ability-to-pay hearing: namely, that a prisoner’s capability of obtaining

meaningful merits review of the financial aspects of his sentence should not be

substantially encumbered by the Department’s Act 84 deductions. See Brief for

Appellant at 20-21.

By way of background, on remand from this Court’s decision in Bundy, the

Commonwealth Court reviewed its own jurisprudence on which this Court had relied,

and concluded that Bundy should be read as requiring an administrative ability-to-pay

hearing only where a material change in circumstances occurs between sentencing and

the first Act 84 deduction. See Bundy v. Wetzel, No. 553 M.D. 2016, 2019 WL

1613026, at *8 (Pa. Cmwlth. Apr. 12, 2019) (“Bundy II”); see also Stewart v. Office of

Clerk for Cumberland Cty. Common Pleas Court, No. 361 M.D. 2018, 2019 WL

3986268, at *7 (Pa. Cmwlth. Aug. 23, 2019) (following Bundy II and requiring proof of “a

sufficient change in circumstances between the time of sentencing and the time of

collection to trigger a pre-deduction hearing on [the inmate’s] ability to pay court-

imposed fines”). Appellant does not challenge the Commonwealth Court’s prevailing

interpretation of this Court’s holding in Bundy, and thus, we have no occasion to

address it in the present appeal. Insofar as this dispute is concerned, the relevant facet

[J-99-2020] - 15
of Bundy – the one on which Appellant presently relies – suggests that the

circumstances in view can relate, not only to increased conditions of supervision and

the like, but to an inability to “obtain meaningful merits review of the financial aspects of

his sentence through direct appeal or post-conviction proceedings.” Bundy, 646 Pa. at

262, 184 A.3d at 559.

Appellant’s claim ultimately fails on two grounds. First, he has not stated that the

alleged change in circumstances occurred between sentencing and the first Act 84

deduction as required under prevailing law per the explanation above. Even putting that

omission aside in light of the customary leniency with which we construe pro se, prison-

drawn allegations, see Sutton v. Bickell, ___ Pa. ___, ___, 220 A.3d 1027, 1035 (2019)

(citing Bundy, 646 Pa. at 261, 184 A.3d at 559), Appellant proceeds from a faulty

premise. Although the Commonwealth Court did observe that Appellant had failed to

allege he would be subject to additional confinement or increased conditions of

supervision due to his failure to pay his costs, see Johnson, 2019 WL 2400295, at *8, it

separately rejected the alternative proposed basis for an ability-to-pay hearing,

reasoning that Appellant

does not aver that his PCRA actions are hindered by the alleged change
in circumstances. A review of the dockets for Johnson’s various PCRA
actions, the docket numbers of which are included in an attachment to the
[first p]etition, reveals that Johnson was granted in forma pauperis status
and is actively litigating those cases.
Id. at *7 n.13 (citing First Complaint Exh. CS1; Superior Court Docket Nos. 3497 EDA

2017, 450 EDA 2018, 879 EDA 2018). Our own review of those docket sheets, as well

as another matter included in Exhibit CS2, Commonwealth v. Johnson, 51 EM 2018

(Pa.), confirms that the matters have all been litigated to completion, thus rendering the

present issue moot. That being the case, we will affirm the Commonwealth Court’s

ruling that Appellant is not entitled a departmental ability-to-pay hearing.

[J-99-2020] - 16
 VI.

In sum, we reach the following holdings: in substance, Appellant raises a single

due process claim and no distinct negligence claim; where an inmate, whose Act 84

deductions began before Bundy and Montanez were decided, grieves those deductions

by accurately reciting that no Bundy process was afforded prior to the first one, due

process mandates that the Department afford post-deprivation process analogous to the

pre-deprivation procedures required by Bundy; further development is required to

determine whether the Department has already supplied Appellant with adequate post-

deprivation process; and Appellant has failed set forth a valid basis to implicate an

administrative ability-to-pay hearing.

The order of the Commonwealth Court is affirmed in part and vacated in part. It

is affirmed insofar as it dismissed Appellant’s claims relating to negligence and an

administrative ability-to-pay hearing. It is vacated to the extent it dismissed Appellant’s

claim relating to due process. The matter is remanded for further proceedings

consistent with this opinion.

Justices Baer, Todd, Dougherty and Mundy join the opinion.

Justice Wecht files a concurring and dissenting opinion in which Justice Donohue
joins.

[J-99-2020] - 17