IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Beavers Jr., :
Petitioner :
:
v. : No. 486 M.D. 2020
: Submitted: February 26, 2021
The Pennsylvania Department of :
Corrections, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: December 9, 2021
Before the Court is the Department of Corrections’ preliminary
objection in the nature of a demurrer to Robert Beavers Jr.’s pro se petition for
review filed in the Court’s original jurisdiction. Beavers, an inmate at the State
Correctional Institution at Houtzdale, argues that the Department’s increase in the
rate of the deduction from his inmate account to pay court-ordered fines and costs
violated his right to due process. The Department has moved to dismiss Beavers’
petition because Act 841 required the deduction rate increase.
In his petition for review, Beavers alleges that on July 24, 2020, he
received a monetary gift from a friend. Petition for Review, ¶1. In the past, when
he received a monetary gift, the Department would deduct 20% and apply it towards
1
Act of June 18, 1998, P.L. 640, No. 84 (Act 84). Act 84 amended Section 9728 of the Sentencing
Code, 42 Pa. C.S. §9728, to add subsection (b)(5), which authorizes the Department to make
deductions from inmate accounts to pay court-ordered obligations imposed by the sentencing
court.
his court-ordered sentencing fine. Id. However, this time, he noticed that 25% was
deducted. Id. He then reviewed his inmate account and learned that for “several
months” the Department had been deducting 25% of the monies deposited into his
inmate account. Id. Beavers alleges that he “never received notice or a hearing”
prior to the Department’s increase in the rate of the deduction. Id., ¶3.
In the petition, Beavers avers that he filed a grievance challenging the
5% increase in the deduction. Id., ¶2. The grievance was denied as untimely. Id.,
Exhibit B. The Department explained that “[t]he increase from 20% to 25%
occurred well over 15 working days ago and, in fact, in checking [Beavers’]
transaction [sheet, his] money, inclusive of gifts, has been subject to the 25%
deduction for months.” Id.
Based on these allegations, Beavers asserts a violation of due process.
The petition states that “inmates retain a property interest in money received from
outside sources and money [earned;] thus, inmates are entitled to due process before
they can be deprived of these monies.” Petition for Review, ¶6. Beavers contends
that the sentencing court considered his ability to pay when it set the amount of his
fines and costs that, at the time, were subject to a 20% Act 84 deduction. Id., ¶5.
The petition alleges that had the sentencing court known the deduction could be
increased to 25%, the outcome could have been different. Id.
Beavers requests this Court to terminate the 5% increase in deductions
until the Department affords him “a proper hearing.” Id., ¶8. Beavers also requests
the Department to return the amounts deducted from his account in excess of 20%.
Id., ¶9.
The Department filed a preliminary objection in the nature of a
demurrer to the petition. The Department explains that Beavers had a hearing on his
2
ability to pay the court-ordered fines and costs at the time of his sentencing.
Additionally, the Department has already provided Beavers an Act 84 hearing on the
deductions from his inmate account to pay his court-imposed fines and costs. This
hearing established the accuracy of the court-ordered fines and costs and that
deductions are made from appropriate funds in his inmate account. Social Security
benefits, for example, are exempt from Act 84 deductions. The Department argues
that the 25% rate of deduction is mandated by statute and that a change in the
applicable statute does not entitle Beavers to another Act 84 hearing.
Beavers responds that when the sentencing court imposed fines and
costs, the Department’s standard deduction rate was 20%, and he did not challenge
the court-imposed fines and costs. However, the 25% deduction has created a
significant hardship because hygiene products have nearly doubled in price since he
was first incarcerated. Additionally, he must purchase food from the commissary
because the Department has decreased the size of food portions available to inmates.
In ruling on preliminary objections in the nature of a demurrer, the
Court “must consider as true all well-pleaded material facts set forth in the petition
and all reasonable inferences that may be drawn from those facts.” Richardson v.
Beard, 942 A.2d 911, 913 (Pa. Cmwlth. 2008). The Court “need not accept as true
conclusions of law, unwarranted inferences from facts, argumentative allegations,
or expressions of opinion.” Freemore v. Department of Corrections, 231 A.3d 33,
37 (Pa. Cmwlth. 2020) (quoting Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth.
2010)). “The question presented by a demurrer is whether, on the facts alleged, the
law says with certainty that no recovery is possible.” Bullock v. Horn, 720 A.2d
1079, 1081 n.5 (Pa. Cmwlth. 1998). This Court has explained:
A preliminary objection in the nature of a demurrer admits every
well-pleaded fact in the [petition for review in the nature of a]
3
complaint and all inferences reasonably deducible therefrom. It
tests the legal sufficiency of the challenged pleadings and will be
sustained only in cases where the pleader has clearly failed to
state a claim for which relief can be granted. When ruling on a
demurrer, a court must confine its analysis to the [petition for
review in the nature of a] complaint.
Freemore, 231 A.3d at 37 (quoting Torres, 997 A.2d at 1245). “[C]ourts reviewing
preliminary objections may not only consider the facts pled in the [petition for
review], but also any documents or exhibits attached to it.” Allen v. Department of
Corrections, 103 A.3d 365, 369 (Pa. Cmwlth. 2014). Against these principles, we
consider the Department’s demurrer to Beavers’ petition for review.
The Sentencing Code authorizes the court to make the defendant pay a
fine in “addition to another sentence.”2 42 Pa. C.S. §9726. However, the defendant
must “be able to pay the fine.” 42 Pa. C.S. §9726(c)(1). Act 84 has tasked the
Department with making “monetary deductions from inmate personal accounts for
2
Section 9726 of the Sentencing Code provides, in pertinent part:
***
(b) Fine as additional sentence.--The court may sentence the defendant to pay a fine
in addition to another sentence, either involving total or partial confinement or
probation, when:
(1) the defendant has derived a pecuniary gain from the crime; or
(2) the court is of the opinion that a fine is specially adapted to deterrence
of the crime involved or to the correction of the defendant.
(c) Exception.--The court shall not sentence a defendant to pay a fine unless it
appears of record that:
(1) the defendant is or will be able to pay the fine; and
(2) the fine will not prevent the defendant from making restitution or
reparation to the victim of the crime.
(d) Financial resources.--In determining the amount and method of payment of a
fine, the court shall take into account the financial resources of the defendant and
the nature of the burden that its payment will impose.
42 Pa. C.S. §9726(b)-(d).
4
the purpose of collecting restitution and other court-ordered obligations or costs ….”
42 Pa. C.S. §9728(b)(5). As this Court has explained, “Section 9728(b)(5) permits
the Department to collect fines, costs, and restitution from inmate prison accounts
and forward the fund[s] to the sentencing county.” Johnson v. Wetzel (Pa. Cmwlth.,
No. 497 M.D. 2018, filed June 3, 2019) (unreported), slip op. at 2 n.1.3
When enacted, Act 84 committed the rate of the deduction to the
discretion of the Department. Pursuant to Section 9728(b)(5), the Department
promulgated Policy Statement DC-ADM 005, which set a deduction “from an
inmate’s account [of] monthly payments of 20% of the preceding month’s income
provided the account balance exceeds $10.00[.]” Spotz v. Commonwealth, 972 A.2d
125, 130 (Pa. Cmwlth. 2009) (citing COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF CORRECTIONS, POLICY No. DC-ADM 005: COLLECTION OF INMATE
DEBTS at 2-1 (2007)). The Department’s standard deduction of 20% was applied to
all inmate accounts.
In 2019, the legislature amended Act 84 to set a minimum deduction
rate of 25%. Section 9728(b)(5) states as follows:
(5) Deductions shall be as follows:
(i) The Department of Corrections shall make
monetary deductions of at least 25% of deposits
made to inmate wages and personal accounts for
the purpose of collecting restitution, costs imposed
under section 9721(c.1), filing fees to be collected
under section 6602(c) (relating to prisoner filing
fees) and any other court-ordered obligation.
3
Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a), provides that an unreported panel decision of this Court issued after January 15, 2008,
may be cited “for its persuasive value, but not as binding precedent.”
5
42 Pa. C.S. §9728(b)(5)(i) (emphasis added). Thus, the statute now requires the
Department to make deductions at the minimum rate of 25% from deposits made to
an inmate’s account to pay the inmate’s court-ordered fines and costs.
It is well established that inmates retain a “property interest” in the
money in their accounts and “any dispossession of that interest may only occur in
conjunction with ‘due process of law.’” Bundy v. Wetzel, 184 A.3d 551, 556 (Pa.
2018) (Bundy I) (citing U.S. CONST. amend. XIV, §1). To comply with due process,
the Department must:
(a) inform the inmate of the total amount of his financial liability
as reflected in his sentencing order, as well as the Department’s
policy concerning the rate at which funds will be deducted from
his account and which funds are subject to deduction; and (b)
give the inmate a reasonable opportunity to object to the
application of the Department’s policy to his account.
Bundy I, 184 A.3d at 558-59. The Supreme Court has explained that this
pre-deduction notice and hearing “will help protect against errors in the
Department’s application of its Act 84 deduction policy without significantly
impeding its ability to carry out essential functions.” Bundy I, 184 A.3d at 559.
Under its policy, the Department provides the inmate with a Notification of
Deductions Memo4 and copies of the official court documents upon which it relied.
4
The Memo informs the inmate of the amounts of fines, costs, restitution, and crime victim
compensation/victim’s services fees owed. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT
OF CORRECTIONS, POLICY No. DC-ADM 005: COLLECTION OF INMATE DEBTS, Attachment 3A
(2020), available at: https://www.cor.pa.gov/About%20Us/Documents/
DOC%20Policies/005%20Collection%20of%20Inmate%20Debts.pdf (last visited December 8,
2021). It explains that the Department will begin making deductions from the inmate’s account to
satisfy the financial obligations in accordance with Act 84. Id. Finally, the Memo explains to the
inmate how the deductions will be made and advises the inmate how to challenge the accuracy of
the documentation establishing the amounts owed. Id.
6
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, POLICY No.
DC-ADM 005: COLLECTION OF INMATE DEBTS, at 3-2 to 3-3 (2020), available at:
https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/005%20Colle
ction%20of%20Inmate%20Debts.pdf (last visited December 8, 2021). The inmate
has 15 days to challenge the deduction by filing a grievance and attaching relevant
court documents, such as a court order, sentencing transcript, or other official court
record to challenge any provision in the Notification of Deductions Memo. Id.
Beavers argues that the Department should have provided him with a
new Notification of Deductions Memo and hearing prior to raising the deduction
rate from 20% to 25%. We disagree.
First, inmates, like all citizens, are presumed to know the laws of this
Commonwealth, including, in this case, the current language of Section 9728(b)(5).
In re Kearney, 7 A.2d 159, 161 (Pa. Super. 1939) (“[I]gnorance of the law excuses
no one, according to the ancient maxim, everyone being presumed to know the
law[.]”); 31A CORPUS JURIS SECUNDUM EVIDENCE §221 (2021) (all persons must
take notice of the public laws by which they are governed and are presumed to have
such knowledge). Due process did not require the Department to notify Beavers of
the amendment to Act 84.
Second, Beavers has had an Act 84 hearing. In Bundy I, the
Pennsylvania Supreme Court directed that an inmate is entitled to a hearing before
the first deduction from his inmate account. This includes a notice that sets forth
the total amount of his financial liability; the Department’s policy on the rate at
which funds will be deducted from his account; and the accounts subject to
deduction. See Bundy I, 184 A.3d at 557 (citing Montanez v. Secretary,
Pennsylvania Department of Corrections, 773 F.3d 472, 486 (3d Cir. 2014)). The
7
purpose of this notice is “to protect against the possibility of error in the application
of the [Department’s] Policy, such as mistakes in reporting of an inmate’s total
liability or to ensure that deductions [were] not made from funds that are exempt.”
Montanez, 773 F.3d at 486.5
Beavers’ petition is based solely on the increase in the rate of the
deduction. Because the rate of the deduction was set by the legislature, the concerns
recognized by the Third Circuit in Montanez and our Supreme Court in Bundy I and
its progeny are not present. Further, the notice prescribed in Bundy I does not include
notice of a change in Act 84.
There are additional reasons why the change to the rate of deduction
from Beavers’ account did not trigger another due process hearing. First, an increase
in the rate of the deduction from 20% to 25% did not change the total amount of
Beavers’ court-ordered fines and costs or change the account from which the
deductions are made. Second, because the statute requires the Department to deduct
a minimum of 25%, it could not order a lesser deduction percentage even if it gave
Beavers the hearing he seeks.6 Third, the purpose of the pre-deduction hearing is to
prevent erroneous deductions, Bundy I, 184 A.3d at 558, and Beavers has not alleged
that there were any errors that a hearing might correct.
In sum, providing an inmate, including Beavers, with a hearing on the
25% statutory deduction rate would be redundant of the pre-deduction hearing that
5
The dissent observes that the rate of deduction from an inmate account is an item to be considered
in a Bundy hearing. Prior to 2019, the deduction rate was committed to the Department’s
discretion. With the 2019 amendment, the Department has no discretion to impose less than 25%.
Accordingly, the deduction rate will be an item in a Bundy hearing only where the Department
exercises discretion to impose a deduction rate higher than 25%.
6
The deductions will reduce Beavers’ debt and that advances “a legitimate Commonwealth
interest, i.e., rehabilitation of the criminal and compensation to the victim of wrongful conduct.”
Sweeney v. Lotz, 787 A.2d 449, 452 (Pa. Cmwlth. 2001).
8
he already had. It would serve no purpose because the Department lacks the
statutory authority to deduct less than 25% of deposits made to an inmate’s account.
Small v. Horn, 722 A.2d 664, 669 (Pa. 1998) (“Administrative agencies are creatures
of the legislature, however, and they have only those powers that are conferred by
statute.”); Department of Corrections v. Tate, 133 A.3d 350, 356 (Pa. Cmwlth. 2016)
(Department has a statutorily mandated duty to deduct funds pursuant to Act 84).
Beavers seems also to challenge the amount of the fines and costs
imposed by the sentencing court. However, “the time to challenge the amount of a
fine for inability to pay is at sentencing.” Stewart v. (Office of the Clerk) for
Cumberland County Common Pleas Court (Pa. Cmwlth., No. 361 M.D. 2018, filed
August 23, 2019) (unreported), slip op. at 12; see also Danysh v. Department of
Corrections, 845 A.2d 260, 264 (Pa. Cmwlth. 2004) (holding that inmate’s ability
to pay court-imposed obligation is reviewed by sentencing court). Beavers argues
that had the sentencing court known that the amount of the deduction would increase
by 5%, the “outcome could have been different.” Petition for Review, ¶5. This
speculation does not state a due process claim.
Lastly, in his brief, Beavers argues that he was entitled to an ability-to-
pay hearing before the Department because the 25% deduction has imposed a
financial burden on him. “An inmate is not entitled to a hearing on the issue of his
ability to pay.” Leisure v. Department of Corrections (Pa. Cmwlth., No. 417 M.D.
2018, filed December 6, 2018), aff’d, 214 A.3d 638 (Pa. 2019). See also Buck v.
Beard, 879 A.2d 157, 161 (Pa. 2005) (due process does not require a judicial hearing
regarding an inmate’s ability to pay after his sentencing hearing); Bundy v. Wetzel
(Pa. Cmwlth., No. 553 M.D. 2016, filed April 12, 2019) (unreported), slip op. at 18
(offender not entitled to an ability-to-pay hearing, or means to object to Act 84
9
deductions, whenever there is a material change in circumstances).7 “[W]hile in
custody under sentence, an offender’s sole avenues to challenge payment of financial
aspects of sentence are direct appeal or postconviction proceedings.” George, 824
A.2d at 396. These avenues “are adequate remedies at law for an offender in custody
to challenge any aspect of the sentence.” Id.
For the above stated reasons, the petition for review does not state a
claim. Accordingly, the preliminary objection of the Department is sustained, and
Beavers’ petition for review is dismissed.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
7
Although not required by statute, the Pennsylvania Supreme Court explained that “an ability-to-
pay hearing” is conducted “where 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.” Bundy I, 184 A.3d at 559 (citing Ingram v. Newman, 830 A.2d 1099, 1103 (Pa.
Cmwlth. 2003)). The “change-in-circumstances” prerequisite, as developed by this Court in
George v. Beard, 824 A.2d 393 (Pa. Cmwlth. 2003), and Ingram, “is grounded on the premise that
a prisoner can obtain meaningful review of the financial aspects of his sentence through direct
appeal or post-conviction proceedings.” Bundy I, 184 A.3d at 559. If, however, an offender’s
failure to pay his court-ordered financial obligations causes him to be charged with contempt or a
probation or parole violation and be exposed to confinement or increased conditions of
supervision, a hearing is warranted. George, 824 A.2d at 396.
Beavers does not allege that he is unable to pay his court-ordered financial obligations or
that he is unable to seek review of the financial aspects of his sentence.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Beavers Jr., :
Petitioner :
:
v. : No. 486 M.D. 2020
:
The Pennsylvania Department of :
Corrections, :
Respondent :
ORDER
AND NOW, this 9th day of December, 2021, the Pennsylvania
Department of Corrections’ preliminary objection is SUSTAINED, and Robert
Beavers Jr.’s petition for review is DISMISSED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Beavers Jr., :
Petitioner :
: No. 486 M.D. 2020
v. :
: Submitted: February 26, 2021
The Pennsylvania Department of :
Corrections, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: December 9, 2021
Because the Majority strays from the requirements of due process and
our Supreme Court’s clear and repeated application of that constitutional principle
to Act 84,1 I must respectfully dissent.
The crux of Robert Beavers Jr.’s claim is that, by increasing the rate at
which the Department of Corrections (Department) deducts funds from his inmate
account without affording him notice and an opportunity to be heard, the Department
violated his right to due process. A review of our Supreme Court’s recent
pronouncements on this matter demonstrates that Beavers is correct.
1
Act of June 18, 1998, P.L. 640, No. 84 (Act 84). Act 84 amended section 9728 of the
Sentencing Code, 42 Pa.C.S. §9728, to add subsection (b)(5), authorizing the Department of
Corrections (Department) to deduct funds from inmate accounts to pay court-ordered obligations.
In Bundy v. Wetzel, 184 A.3d 551 (Pa. 2018), the Supreme Court,
following a decision of the Third Circuit Court of Appeals in Montanez v. Secretary
Pennsylvania Department of Corrections, 773 F.3d 472 (3d Cir. 2014), held that Act
84 deductions implicate the protections of due process. Notwithstanding their
incarceration, because inmates retain a property interest in the money in their
accounts, “any dispossession of that interest may only occur in conjunction with ‘due
process of law.’” Bundy, 184 A.3d at 556 (quoting U.S. CONST. amend. XIV, §1).
Invoking the factors bearing upon the nature of the process due under Mathews v.
Eldridge, 424 U.S. 319 (1976),2 and in harmony with the Third Circuit’s decision in
Montanez, our Supreme Court concluded that Act 84 deductions warrant the
provision of a pre-deprivation process prior to the first deduction. Specifically, to
comply with due process,
the Department must, prior to the first deduction: (a)
inform the inmate of the total amount of his financial
liability as reflected in his sentencing order, as well as the
Department’s policy concerning the rate at which funds
will be deducted from his account and which funds are
subject to deduction; and (b) give the inmate a reasonable
opportunity to object to the application of the
Department’s policy to his account.
Bundy, 184 A.3d at 558-59 (emphasis added).
Our Supreme Court addressed this matter again in Johnson v. Wetzel,
238 A.3d 1172 (Pa. 2020), and considered the availability of a remedy for inmates
2
The Mathews factors are: “(1) the private interest affected by the governmental action;
(2) the risk of an erroneous deprivation together with the value of additional or substitute
safeguards; and (3) the state interest involved, including the administrative burden the additional
or substitute procedural requirements would impose on the state.” Bundy, 184 A.3d at 557 (citing
Mathews, 424 U.S. at 335).
PAM-2
who were subject to a first Act 84 deduction prior to the issuance of the decisions in
Bundy and Montanez. With regard to the due process requirements attending such
deductions, the Johnson Court reiterated the rule of Bundy:
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.
Johnson, 238 A.3d at 1182 (citing Bundy, 184 A.3d at 558) (emphasis added). The
Johnson Court ultimately held that, for inmates who did not receive pre-deprivation
process, the Department could satisfy the requirements of due process by providing
post-deprivation process. In such a circumstance, 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,” afford the
inmate “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.” Id. at 1183. “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.” Id.
The issue here derives from the General Assembly’s decision in 2019
to amend section 9728(b)(5)(i) of the Judicial Code, 42 Pa.C.S. §9728(b)(5)(i), to
set the rate of Act 84 deductions at 25%—an increase from the 20% that the
Department previously deducted pursuant to its policies. See Act of December 18,
2019, P.L. 776. After this statutory amendment, the Department began deducting
PAM-3
25% of all monetary gifts deposited into Beavers’ account. Yet, the Department did
not provide notice to Beavers of the increased rate of deduction, and it did not give
him an opportunity to be heard on the matter.
It is plain that the Department’s action runs afoul of Bundy. Our
Supreme Court has made it unmistakably clear that due process requires the
provision of notice to the inmate, prior to the first deduction, of “the rate at which
funds will be deducted from his account.” Johnson, 238 A.3d at 1182; Bundy, 184
A.3d at 558. Even if one does not consider an increase in the rate to constitute a new
“first” deduction for purposes of Bundy—which would be a reasonable conclusion—
the ability to increase the rate of deduction without providing notice to the inmate
would render this repeatedly stressed requirement absolutely meaningless. Perhaps
an increase of 5% does not seem especially significant. But there is no limiting
principle suggested here which would differentiate an increase to, e.g., 50% or 75%.
Would the Court deem it acceptable for the Department to provide notice to an
inmate of a 20% rate of deduction, then increase the rate to 90% without warning?
Given our Supreme Court’s express and repeated command that the Department
provide pre-deprivation notice to the inmate of “the rate at which funds will be
deducted from his account,” Johnson, 238 A.3d at 1182; Bundy, 184 A.3d at 558, I
should think not.
The Majority offers several arguments in support of its conclusion to
the contrary, none of which are convincing. See Beavers v. The Pennsylvania
Department of Corrections (Pa. Cmwlth., No. 486 M.D. 2020, filed December 9,
2021) (Beavers), slip op. at 7-8.
First, the Majority invokes the ancient maxim that “ignorance of the
law is no excuse,” suggesting that Beavers must be presumed to be aware of any
PAM-4
change to any statute (notwithstanding his incarcerated status). Id. at 7. Thus, the
Majority suggests, there was no need to inform Beavers of the increased rate of
deductions from his account because he was already aware of the change. Of course,
this rationale flips the due process burden on its head. It is the Department’s
obligation to provide notice of a property deprivation; it is not an inmate’s burden to
invite the Department to meet its Bundy obligations. See Mathews, 424 U.S. at 348-
49 (“The essence of due process is the requirement that ‘a person in jeopardy of
serious loss (be given) notice of the case against him and opportunity to meet it.’”)
(quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-72
(1951) (Frankfurter, J., concurring)); see also Commonwealth v. Hamlett, 234 A.3d
486, 515 (Pa. 2020) (Wecht, J., dissenting) (“[D]ue process jurisprudence has never
placed the onus upon the individual subject to the deprivation to anticipate such
deprivation and launch a prophylactic challenge thereto. To the contrary, it is
inherent in the concept of ‘notice’ that the individual is to be provided with notice
of adverse action; he is not expected to divine and preempt it.”) (emphasis in
original) (citing Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 314
(1950) (“An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections.”)).
Second, the Majority states that Beavers has already had an Act 84
hearing. Beavers, slip op. at 7. But this is more a statement of the factual
background of this case than a legal conclusion concerning the argument presented.
The problem is that the rate of deduction—an express Bundy item—has changed
PAM-5
since Beavers’ hearing. As discussed above, to allow the rate of deduction to change
without notice defeats the purpose of providing notice of that rate in the first place.
Next, the Majority states that, because the new rate of deduction has
been set by statute rather than Department policy, “the concerns recognized by the
Third Circuit in Montanez and our Supreme Court in [Bundy] and its progeny are
not present.” Id. at 8. But the Majority does not explain why that would be the case.
The Supreme Court’s concern was that inmates be provided due process with respect
to their property. The focus was upon the property interest, not the source of the
authority for the deductions. I see no difference in this regard between authority
derived from a statute, a regulation, a policy, or an ad hoc decision-making process;
quite simply, if the Department’s action deprives an inmate of a property interest,
then the inmate is entitled to due process protections.
The Majority then lists an assortment of “additional reasons” that the
changed rate of deduction did not trigger a due process hearing. Id. The Majority
states that the increase in the rate of deduction did not change the total amount of
Beavers’ court-ordered financial obligations or the account from which the funds
would be deducted. Id. But the total amount of the financial obligation is a wholly
separate Bundy item from the rate of deduction, and it does not explain why the rate
of deduction from new deposits into the account may be changed without warning.
Next, the Majority states that, because the 25% figure is mandated by
statute, the Department could not order another amount even if it did provide
Beavers with due process. Id. But this was true as of our Supreme Court’s 2020
decision in Johnson, where the Court nonetheless mandated that inmates be provided
with notice and an opportunity to object to the deductions—either pre-deprivation
or post-deprivation—so that they could “explain why the past and/or intended
PAM-6
deductions should not take place notwithstanding the dictates of Act 84.” Johnson,
238 A.3d at 1183 (emphasis added). Although the Department may not alter the
statutory amount of 25%, its constitutional obligation to provide inmates with notice
has not been eliminated or otherwise modified, and it still may make errors subject
to correction. The due process mandated by Bundy and Johnson may allow for the
development of a “meritorious challenge along these lines,” which “would then
implicate the substantive remedy of restoring the prisoner’s wrongly-deducted funds
to his or her account.” Id.
With regard to that error-detecting function of the due process hearing,
the Majority states that Beavers is not entitled to such a hearing because he has not
alleged any errors that a hearing might correct. Beavers, slip op. at 8. But this
sidesteps the injury asserted. The issue before this Court is the deprivation of due
process, the provision of which would allow for the potential development of an
argument regarding such errors. Whether there were any statutory errors in the
amount of the deductions or the source of the funds are questions for a different body
at a different time. I do not understand why the presence or absence of such errors
should determine whether Beavers is entitled to due process before the deprivation
of his property.
In a footnote, the Majority suggests two other factors that may bear
upon its conclusion, noting that the “deductions will reduce Beavers’ debt,” and that
they advance “a legitimate Commonwealth interest” in rehabilitation of offenders
and providing compensation to victims. Id. at 8 n.6. Neither observation justifies
the outcome here. Reducing Beavers’ debt is accomplished by means of removing
funds from his account—funds in which he retains a property interest and, therefore,
“any dispossession of that interest may only occur in conjunction with due process
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of law.” Bundy, 184 A.3d at 556. As for the legitimate governmental interests
served by Act 84 deductions, the Majority’s observation is a non sequitur. The
interests served by Act 84 deductions have nothing to do with the Department’s
ability and obligation to conform those deductions to the requirements of due
process. Many governmental actions serve important interests, but when they
deprive an individual of a constitutionally protected property interest, neither their
legitimacy nor their prudence excuses the failure to provide due process.
Beavers was entitled to notice and an opportunity to be heard before the
increase in the rate at which funds would be deducted from his account. He was not
provided such. Fortunately, as discussed above, our Supreme Court in Johnson had
the foresight to articulate a remedy for such a circumstance: a post-deprivation
process. At the very least, Beavers should be provided “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.” Johnson,
238 A.3d at 1183. “Any meritorious challenge along these lines would then
implicate the substantive remedy of restoring [Beavers’] wrongly-deducted funds to
[his] account.” Id.
Certainly, providing the necessary process to Beavers (and to other
inmates in similar circumstances) would entail some additional administrative
burden. However, whatever its reasons, in 2019 our General Assembly decided to
increase the rate of Act 84 deductions, fully aware of the due process implications
that the Supreme Court made clear the previous year in Bundy. See 1 Pa.C.S.
§1922(4) (presuming that “when a court of last resort has construed the language
used in a statute, the General Assembly in subsequent statutes on the same subject
matter intends the same construction to be placed upon such language”);
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Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Jet-Set
Restaurant, LLC, 191 A.3d 817, 823-24 (Pa. 2018) (discussing principle that the
legislature is presumed to be aware of decisions of the Supreme Court). The only
consequence of that statutory amendment which should fall upon inmates is the
mandated increase in deductions from their accounts after they receive all of the
process due under Bundy—the consequence should not be that inmates’ due process
rights are swept away entirely.
For all of these reasons, I respectfully dissent.
________________________________
PATRICIA A. McCULLOUGH, Judge
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