Vega v. Beard

OPINION BY Judge COHN.

Peter Vega (Vega), an inmate at a state correctional facility, filed, pro se, an action in this Court’s original jurisdiction based on the claim that Jeffrey A. Beard, in his capacity as Secretary of the Pennsylvania Department of Corrections (DOC), and Ben Varner, in his capacity as Superintendent at the State Correctional Institution at Smithfield, (collectively Respondents), improperly deducted funds from his inmate account to pay child support pursuant to a civil action consent support order issued by the Juvenile and Domestic Relations Court of the Superior Court of New Jersey. In his amended petition, Vega avers that he is subject to a New Jersey *155child support order that directs him to pay $15.00, plus $5.00 in arrears, on a weekly basis. He also pleads that the Camden County, New Jersey Probation Department sent a notice to DOC directing that 50% of his inmate account be deducted each month to satisfy the obligations of the order.

Vega seeks to enjoin Respondents from making any deductions from his inmate account pursuant to Section 9728(b)(5) of the Sentencing Code, 42 Pa. C.S. § 9728(b)(5), commonly referred to as Act 84, until he has been provided a hearing on his ability to pay. Additionally, Vega also argues that his rights are being violated because DOC is deducting 50% of his inmate account each month rather than the “sum certain” of $15.00 plus $5.00 per week. Finally, Vega argues that Respondents violated the Uniform Interstate Family Support Act (UIFSA), 28 Pa.C.S. § 7101-7901. Respondents filed a preliminary objection in the nature of a demurrer, to which Vega filed a reply1 and, in the alternative, a motion for leave to amend, which we will dismiss as moot in light of our disposition of this matter.

When reviewing preliminary objections in the nature of a demurrer to a petition for injunctive relief, we sustain the objection only where the underlying petition is insufficient to establish a right to relief. P.J.S. v. Pennsylvania State Ethics Commission, 669 A.2d 1105 (Pa. Cmwlth.1996). Any doubt must be resolved in favor of the party seeking the injunction. Id. Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. Simmons v. Township of Moon, 144 Pa.Cmwlth. 198, 601 A.2d 425 (1991).

Vega pled that the deductions currently taken from his inmate account are not authorized by the child support order and that he has not been afforded a hearing to determine his ability to pay. Respondents state in their demurrer that there is no statutory requirement for a hearing on an inmate’s ability to pay pursuant to Section 9728(b)(5).

Section 9728(b)(5) authorizes DOC to make monetary deductions for “the purpose of collecting restitution or any other court-ordered obligation.” (Emphasis added.) Act 84 provides a procedure for DOC to collect fines and court costs for which a defendant is liable pursuant to a previous court order. Sweatt v. Department of Corrections, 769 A.2d 574 (Pa.Cmwlth.2001). Therefore, DOC is correct that, with regard to a “court-ordered obligation” under the Act, an inmate has no right to injunctive relief against DOC to end deductions from his inmate account pending a hearing into his financial ability to pay; rather, the remedy to challenge the deduction of funds from an inmate account is via a challenge to the sentencing court’s order brought before that court. Buck v. Beard, 834 A.2d 696 (Pa.Cmwlth.2003); Harding v. Stickman, 823 A.2d 1110 (Pa.Cmwlth. 2003). However, this does not address the real issue in this case, which is whether a *156child support order issued by a civil court is a “court-ordered obligation” for purposes of Section 9728(b)(5).

The provision at issue, Section 9728(b)(5), is contained in the Sentencing Code, and within the Sentencing Code, “court” is repeatedly used throughout the Sentencing Code to refer to the sentencing court. For example, “the court shall conduct a separate sentencing hearing” (42 Pa.C.S. § 9711(a)(1)), “the court may impose a sentence of guilty without further penalty” (42 Pa.C.S. § 9723), “the court may impose a sentence involving partial confinement” (42 Pa.C.S. § 9724), “the court shall impose a sentence of total confinement” (42 Pa.C.S. § 9725), “the court may, as authorized by law, sentence the defendant only to pay a fine” (42 Pa.C.S. § 9726(a)), “[bjefore imposing sentence, the court shall hear testimony and make a finding on the issue of whether the defendant at the time of sentencing is severely mentally disabled” (42 Pa.C.S. § 9727(a)). Section 9730.1 of the Sentencing Code, 42 Pa.C.S § 9730.1, which concerns collection of court costs, restitution and fines by a private collection agency, defines “amount owing” as [tjhe total amount owed by the defendant on fines, costs or restitution in accordance with the order of the court sentencing the defendant .... (emphasis added). In addition, subchapters in the Sentencing Code include: Sentencing Authority, Sentencing Alternatives and Imposition of Sentence and Section 9728 is contained with the Sentencing Alternatives subchapter.

Furthermore, the general rule in Section 9728(a)(1) specifies that the “restitution, reparation, fees, costs, fines and penalties are part of a criminal action or proceeding ... ”. See generally, Buck, 834 A.2d at 699 (cases cited therein all concern financial obligations arising from a sentencing court’s order). Vega alleges that the order in question is a child support order issued pursuant to a civil domestic relations proceeding, not as part of a criminal proceeding.

Deductions cannot be made from an inmate’s account, under Section 9728(b)(5), pursuant to a court order that is not part of a criminal proceeding. It is, therefore, not at all clear that DOC has any authority under Section 9728(b)(5) to deduct funds from Vega’s account pursuant to the order involved here. Accordingly, because there is doubt that the petition for review is insufficient to establish a right to relief, under P.J.S., the demurrer must be overruled.

For the foregoing reasons, we overrule Respondents’ preliminary objection and direct that an answer be filed.

ORDER

NOW, March 24, 2004, the preliminary objection in the nature of a demurrer is overruled and Respondents are directed to file an answer within 30 days of entry of this order. Petitioner’s motion for leave to amend is dismissed as moot.

FRIEDMAN, J., dissents and files opinion.

. In his reply, Vega contends that Respondents were afforded two chances to file preliminary objections and that under the pleading rules, specifically Pa. R.C.P. No. 1028(b), all preliminary objections must be raised at one time. In general this is true. However, in this instance, Vega did not initially serve his petition for review on Respondents, and they learned of the lawsuit only by receiving this Court's notice of filing of a petition for review. Consequently, the only preliminary objection they could raise was lack of service. Once Vega cured this defect, we, by order, allowed Respondents to file additional preliminary objections. Given that Vega had not initially served his petition on Respondents at all, we find no error in allowing Respondents to file additional preliminary objections once he did so.