Fisher v. Commonwealth, Department of Corrections

DISSENTING OPINION BY

Judge SIMPSON.

I respectfully dissent from the decision to allow a prison inmate to challenge enforcement of a support order outside the framework of the Supreme Court’s rules governing actions for support, Pa. R.C.P. Nos.1910.1 — 1910.50. Because these rules provide an adequate remedy at law for the inmate here and provide a forum for the inmate’s two obligees, I would deny summary relief to the inmate and grant judgment on the pleadings to the Department of Corrections (DOC).

It is uncontested that this case involves enforcement of a valid support order issued by the Court of Common Pleas of Beaver County (trial court) to DOC to withhold $288 per month from the income of a state prison inmate, Keith Fisher. In addition, it is clear that the relief sought by the inmate is to reduce the amount of money taken from his prison account and sent to the trial court, for ultimate distribution to the inmate’s obligees. Further, it is uncontested that the inmate’s obligees are not parties before this Court, and they have not been afforded any opportunity to be heard before judgment ordered by the majority.

Among DOC’s arguments is that the inmate failed to avail himself of adequate remedies at law, thereby precluding relief in equity or for mandamus. In particular, DOC contends the inmate failed to seek modification of his support orders while in prison, as now allowed by Pa. R.C.P. No.l910.19(f).

I agree with this argument. The new provision allows a trial court to modify or terminate a charging support order and remit any arrears if “the obligor is unable to pay, has no known income or assets and there is no reasonable prospect that the obligor will be able to pay in the foreseeable future.” Pa. R.C.P. No.l910.19(f)(2). Importantly, the procedure requires notice to any obligee and an opportunity to be heard. The Explanatory Comment — 2006 addresses the new provision and provides in pertinent part, “Likewise, an obligor with no verifiable assets whose ... incarceration ... precludes the payment of support renders the support order unenforceable. and uncollectible, diminishing the perception of the court as a source of redress or relief.”

In a footnote, the majority dismisses this contention by suggesting that the inmate is not attempting to challenge the terms of the support order. I disagree. The inmate seeks to have the amount DOC withdraws from his inmate account reduced to zero. Thus, the practical effect of the majority’s opinion is to render the support order ineffective. I strongly believe that any procedure which renders a trial court’s support order ineffective should begin in the trial court and should include the obli-gees, consistent with the Supreme Court’s rules.

There is another reason why I cannot endorse the result reached by the majority. Under the majority’s decision, no payments will be made to the underlying support orders. Thus, arrearages increase for the inmate. As a result, the underlying obligations are never dealt with, problems multiply, and the perception of the courts as a source of redress is diminished. This makes no sense.

There are other arguments made by DOC that have merit, but all the other issues can be resolved by a proceeding in the trial court which involves the obligees. The trial court can then determine wheth*997er the inmate has any assets, from what source amounts came into the inmate’s account, and whether, as DOC contends here, the inmate manipulated his inmate account with discretionary purchases to frustrate payment of support.

In sum, I would not permit an end run around a comprehensive set of procedures for establishing and enforcing support. I would require the inmate to seek all relief from the trial court and not from this Court. Accordingly, I would deny summary relief to the inmate and grant DOC’s motion for judgment on the pleadings, without prejudice to the subsequent petitions in the trial court.

Judge LEAVITT joins in this dissent.