Buck v. Beard

*705DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. First, I disagree with the majority that section 9728(b)(5) of the Sentencing Code1 authorizes the Department of Corrections (Department) to determine an inmate’s ability to pay court-ordered fines, costs or restitution. Second, I disagree with the majority that section 9730(b) of the Sentencing Code 2 does not apply to inmates. Third, I must dissent because the majority has ignored the law governing preliminary objections by failing to accept as true, and by failing to address, Buck’s allegation that the Department has deducted 20% from the monetary gifts he has received from his family.

I. Section 9728(b)(5)

A. Guidelines

The majority concludes that section 9728(b)(5) of the Sentencing Code authorizes the Department to determine an inmate’s ability to pay court-ordered obligations without a hearing “presumably” because the Department is in the best position to evaluate an inmate’s ability to pay.3 (Majority op. at 3-4.) I cannot agree.

Section 9728(b)(5) of the Sentencing Code authorizes the Department to “develop guidelines relating to” the Department’s responsibility for making “monetary deductions from inmate personal accounts for the purpose of collecting restitution or any other court-ordered obligation.” 42 Pa.C.S. § 9728(b)(5) (emphasis added).

“Guidelines are ... accurately defined as policy and procedures and are promulgated to give guidance and direction ... to inmates and staff.” Chimenti v. Pennsylvania Department of Corrections, 720 A.2d 205, 210 (Pa.Cmwlth.1998), aff'd, 559 Pa. 379, 740 A.2d 1139 (1999). Guidelines leave staff “free to exercise discretion to follow or not follow the announced policy in an individual case”; if guidelines do not leave staff with such discretion, then the guidelines are, in reality, regulations which must be promulgated under the Commonwealth Documents Law.4 Id. Finally, “guidelines [relating to sentencing] cannot ... alter the legal rights and duties of the defendant ... and the sentencing court.” Commonwealth v. Sessoms, 516 Pa. 365, 376, 532 A2d 775, 780-81 (1987).

Because section 9728(b)(5) only authorizes the Department to develop guidelines, section 9728(b)(5) must be interpreted to mean that the Department’s staff is free to exercise discretion to make or not make monetary deductions from inmate personal accounts in an individual case.5 Moreover, section 9728(b)(5) must be interpreted to mean that the Department may not alter the legal rights of inmates or the duties of a sentencing court.

In this case, Buck’s complaint states a cause of action because it alleges that: (1) *706the Department improperly made deductions from his inmate account, i.e., the Department abused its discretion by making deductions; (2) the Department denied him due process in making deductions from his inmate account, i.e., the Department altered his legal rights; and (8) the Department usurped the power of the sentencing court to determine Buck’s ability to pay in making deductions from his inmate account, i.e., the Department altered the duty of a sentencing court. Accordingly, I would overrule the Department’s demurrer.

To the extent that Buck challenges the validity of the guidelines, I point out that the Department’s guidelines are not part of the record before this court. Thus, I am unable to determine whether the Department’s guidelines allow staff discretion to make or not make monetary deductions from inmate personal accounts. I also am unable to determine whether the Department’s guidelines actually alter Buck’s legal rights or the duties of a sentencing court.6

In fact, I am deeply troubled that the majority has upheld the Department’s guidelines by sustaining the demurrer without any consideration of the law governing guidelines and without any examination of the guidelines themselves. A court should sustain a demurrer only in cases that are free and clear from doubt and only where it appears with certainty that the law permits no recovery under the allegations pleaded. Sweatt v. Department of Corrections, 769 A.2d 574 (2001). Absent the Department’s guidelines, I cannot understand how the majority can conclude that this case is free and clear from doubt.

B. Due Process

Buck argues that the Department has violated his due process rights by making deductions from his inmate account.7 Despite the fact that this issue is argued in Buck’s brief and was discussed at oral argument, the majority does not address the matter. Unlike the majority, I would not dismiss Bucks’ action without considering the arguments presented by court-appointed counsel.

“It is beyond dispute that money is property, and private property cannot be *707taken by the government without due process .... Reasonable notice and a hearing are required before appropriating funds from an inmate’s account without his/her consent.”8 Anderson v. Horn, 723 A.2d 254, 256 (Pa.Cmwlth.1998) (citations omitted), appeal denied, 559 Pa. 669, 739 A.2d 167 (1999); see Higgins v. Beyer, 293 F.3d 683 (3d Cir.2002) (holding that the deduction of money from an inmate’s personal account to pay a fine violates the Fourteenth Amendment if there is not notice and a hearing). However, this court has held that the Department may deduct money from an inmate account to collect fines, costs and restitution if the inmate was afforded due process at the time of sentencing. Russell v. Donnelly, 827 A.2d 535 (Pa.Cmwlth.2003).

To the degree that Russell holds that a defendant with the ability to pay a fine at the time of sentencing will have the same ability to pay that fine at all times in the future, I disagree. In fact, in this case, we granted Buck in forma pauperis status, which means that Buck is now without financial resources even to pay the costs of this litigation. See Pa. R.C.P. No. 240(b). Moreover, the General Assembly made a special accommodation for the changing financial conditions of defendants when it enacted section 9730(b) of the Sentencing Code, which allows a court to re-examine a defendant’s ability to pay after the imposition of a fine at sentencing.

Assuming arguendo that this court’s decision in Russell is correct, one could reasonably infer from Buck’s complaint that the sentencing court did not consider Buck’s ability to pay when it imposed a $10,000 fine at sentencing.9 Because Russell requires due process at sentencing and because it is not certain in this case that Buck was afforded due process at sentencing, I would conclude that Buck has stated a violation of his due process rights.

B. Separation of Powers

Buck also argues that the Department has violated the separation of powers doctrine by usurping the sentencing court’s power to determine a defendant’s ability to pay fines, costs and restitution. Athough this argument was made to the court at oral argument, the majority does not address it. Unlike the majority, I would not dismiss Buck’s action without considering the arguments that court-appointed counsel presented to this court.

The whole judicial power of the Commonwealth is vested in the courts, and the sentencing power is a well recognized facet of that judicial power.10 Young v. Commonwealth Board of Probation and Parole, 487 Pa. 428, 409 A.2d 843 (1979). At sentencing, the court determines the amount of a fine, if any, and imposes costs based on the defendant’s ability to pay. *708Section 1726 of the Judicial Code, 42 Pa. C.S. § 1726; sections 9721(a)(5) and 9726 of the Sentencing Code, 42 Pa.C.S. §§ 9721(a)(5) and 9726. The court also determines the method of payment for the fines and costs. 42 Pa.C.S. §§ 1726 and 9726(d); Rule 706(C) of the Pennsylvania Rules of Criminal Procedure, Pa. R.Crim. P. 706(C).

Here, Buck alleges that the sentencing court ordered Buck to pay a fine of $10,000. (Petition, ¶ 6.) The court did not order Buck to pay the fine by installments. (R.R. at la); see also 42 Pa.C.S. § 9730(b)(3). Buck also alleges that the Department has been deducting 20% from his inmate account to pay the fine. Because the court did not order this method of payment, the Department has usurped the sentencing court’s judicial power to determine the method of paying a particular fine imposed at sentencing. Thus, Buck has stated a cognizable separation of powers issue.

II. Section 9730(b)

The majority concludes that section 9730(b) of the Sentencing Code does not apply to inmates. (See Majority op. at 700-01.) I cannot agree.

Section 9730(b) of the Sentencing Code states that, “if a defendant defaults in the payment of a fine, court costs or restitution after imposition of a sentence, the [court] may conduct a hearing to determine whether the defendant is financially able to pay.” 42 Pa.C.S. § 9730(b) (emphasis added). This clear and unambiguous language indicates that section 9730(b) applies to every defendant, even defendants who happen to be inmates. When the words of a statute are clear and unambiguous, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Section 1921(b) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(b).

In holding otherwise, the majority has changed the word “defendant” in section 9730(b) to “defendant who is not an inmate.” The majority justifies this re-writing of the statute by stating that the General Assembly recognized that the deducted amounts are relatively minor and that it is impractical and burdensome for courts to conduct an ability-to-pay hearing whenever an inmate’s account fluctuates.11 (Majority op. at 700.) However, this court may not consider the consequences of an interpretation or the legislative history of a statute unless the words of a statute are not explicit. Sections 1921(c)(6) & (c)(7) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(c)(6) & (7). That is not the case here.

III. Monetary Gifts

Buck alleges that the Department has been deducting 20% from the monetary gifts he receives from family members.12 (Petition, ¶ 7.) Because we are ruling on a *709demurrer, we must accept this allegation as true. Despite the existence of the allegation in the complaint, the majority states that Buck does not challenge the Department’s deductions from his family’s gifts of money. (Majority op. at 700 n. 8.) However, in making such a statement, the majority ignores the rule of law governing preliminary objections in the nature of a demurrer.

There can be no dispute that Pennsylvania is a fact-pleading state. Clark v. Southeastern Pennsylvania Transportation Authority, 691 A.2d 988 (Pa.Cmwlth.), appeal denied, 550 Pa. 686, 704 A.2d 640 (1997). Thus, our supreme court has stated that a preliminary objection in the nature of a demurrer must be rejected if the facts as pleaded state a claim for which relief may be granted under any theory of law.13 Sunbeam Corporation v. Liberty Mutual Insurance Company, 566 Pa. 494, 781 A.2d 1189 (2001). As indicated above, the facts as pleaded indicate that the Department is making deductions from monetary gifts that Buck has received from his family. If this is improper under any theory of law, then Buck’s complaint has stated a claim for which relief may be granted. Indeed, in the remedy portion of his complaint, Buck asks for the return of the monies deducted from his inmate account, including whatever was deducted from his family’s monetary gifts. (Petition, V(d).) Thus, unlike the majority, I choose to address this matter.

First, it never would be proper for the Department to make deductions from the monetary gift of a family member to collect an unpaid fine. When a sentencing court imposes a $10,000 fine, the court is required to consider the financial resources of the defendant. 42 Pa.C.S. § 9726(d). The court does not consider the financial resources of the defendant’s family. When a court imposes a $10,000 fine, the amount is entered as a judgment against the person sentenced. 42 Pa.C.S. § 9728(b)(1) and (b)(4). It is not entered as a judgment against the family of the person sentenced. When a court must rule on a default in the payment of a fine, the court considers the financial resources of the defendant. 42 Pa.C.S. § 9730(b)(3). The court does not consider the financial resources of the defendant’s family. Thus, unless an inmate has been deprived of a proper ability-to-pay hearing, the Department should be able to collect any fine without making deductions from family monetary gifts.

Second, when the legislature enacted Act 84 in 1998 to facilitate the collection of unpaid fines, the legislature amended both section 9728(b)(5) of the Sentencing Code and section 8127(a) of the Judicial Code.14 While the amendment to section 9728(b)(5) permits monetary deductions from inmate accounts to collect unpaid fines, the amendment to section 8127(a) permits the attachment of wages to collect unpaid fines. The amendments are not unrelated; indeed, the legislature made clear by enacting Act 84 that section 9728(b)(5) and section 8127(a) are in pari materia and, thus, are to be construed as one statute. *710Section 1932 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1932 (stating that statutes are in pari materia when they relate to the same things). Reading them as such, I conclude that the legislature intended section 9728(b)(5) to authorize monetary deductions only from an inmate’s wages.15

For all of the foregoing reasons, I would overrule the demurrer.

. 42 Pa.C.S. § 9728(b)(5).

. 42 Pa.C.S. § 9730(b).

. Absent a hearing, the Department would have no special knowledge about the financial obligations that an inmate might have outside of prison.

. Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602. I note that section 9728(b)(5) does not authorize the Department to promulgate regulations under the Commonwealth Documents Law; section 9728(b)(5) only authorizes the Department to develop guidelines, which do not have the force and effect of law.

.Thus, in a particular case, an inmate could challenge the Department's deductions from his personal account as an abuse of discretion. Such a challenge would be filed against the Department in this court’s original jurisdiction.

. The majority notes that, according to Boyd v. Department of Corrections, 831 A.2d 779 (Pa.Cmwlth.2003), the Department’s guidelines provide for a monthly 20% deduction from the preceding month’s income, provided that the account balance exceeds $10.00. (Majority op. at 699 n. 6.) The majority does not indicate whether the guidelines would apply to income earned by an inmate pursuant to a pre-release or work release plan.

If Buck had alleged that he earned income while on pre-release or work release and that the Department was making deductions from those earnings, the Department would be violating section 4 of the Act of July 16, 1968 (Work Release Act), P.L. 351, 61 P.S. § 1054. Section 4(a) of the Work Release Act states that the salaries or wages of inmates gainfully employed under a pre-release or work release plan shall be collected by the Department and shall not be subject to attachment for any purpose during the term of imprisonment. Id. Section 4(b) of the Work Release Act states that the Department shall disburse the salaries or wages for the following purposes and in the following order: (1) the board of the inmate, including food and clothing; (2) necessary travel expense to and from work and other incidental expenses of the inmate; (3) support of the inmate's dependents; (4) payment, either in full or ratably, of the prisoner’s obligations acknowledged by him in writing or which have been reduced to judgment; and (5) the balance to the prisoner upon his discharge. 61 P.S. § 1054(b).

. In ascertaining the intention of the General Assembly in enacting a statute, we presume that the General Assembly did not intend to violate the Pennsylvania or United States Constitutions. Section 1922(3) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(3).

. "Obviously, the inmate grievance procedures ... do not meet the minimum standards [of due process].” Holloway v. Lehman, 671 A.2d 1179, 1182 (Pa.Cmwlth. 1996).

. In Paragraph 8 of the complaint, Buck alleges that he cannot afford the deductions from his inmate account. If the sentencing court properly determined that Buck had the ability to pay a $10,000 fine, then Buck should be able to afford the deductions.

. In Boyd, this court stated that the authority to impose restitution at sentencing is statutorily created and is not a function delegated exclusively to the courts under the Pennsylvania Constitution; therefore, such authority is not subject to the separation of powers doctrine. However, there was not a separation of powers issue in Boyd; thus, this statement is mere dicta. Moreover, it is incorrect. The imposition of a sentence is a judicial function. The legislative branch may establish a court's sentencing options, and the executive branch may oversee the service of a sentence, but the judicial branch imposes the sentence in a particular case.

. Presumably, then, if a court concludes that an inmate is unable to immediately pay a fine, but the inmate later "wins the lottery,” it would be too burdensome for a court to reexamine the inmate’s ability to pay the fine.

. A person may deposit money with the superintendent, warden, or other authorized individual for the benefit and use of an inmate, and it shall be credited to the inmate’s account. Section 5123(b) of the Crimes Code, 18 Pa.C.S. § 5123(b). If a family member sends cash to an inmate through the mail, it will be deposited in the Inmate General Welfare Fund; if a family member sends an un-certified personal check through the mail, it will be returned. 37 Pa.Code § 93.2(c)(2). Approved family members may purchase items appearing on the Approved Master Commissary List for an inmate and have them sent directly to the inmate from an approved vendor. 37 Pa.Code § 93.4.

. If the facts as pleaded state a cause of action under any theory of law, we should overrule a demurrer and allow the parly to amend the pleading pursuant to Pa. R.C.P. No. 1033. See Goodrich Amram 2d, § 1033:12. Indeed, Rule 1033 states that a court may allow a party to amend a pleading at any time, even though the amendment will give rise to a new cause of action. Because of Rule 1033, I do not agree with the majority's view that Buck has waived the monetary gift issue here. In fact, because of Rule 1033, I submit that when a court considers a preliminary objection in the nature of a demurrer, there is no such thing as a waiver of issues.

. 42 Pa.C.S. § 8127(a).

. In Mays v. Fulcomer, 122 Pa.Cmwlth. 555, 552 A.2d 750 (1989), this court held that the Department did not violate section 8127 of the Judicial Code by making deductions from an inmate’s “wages” to collect restitution. At the time, section 8127 stated that personal wages are exempt from attachment. However, to reach its holding, this court concluded that an inmate’s "wages” do not constitute personal wages for the purposes of section 8127. Id.

The holding in Mays is no longer relevant; indeed, the issue presented in that case has become a non-issue. By the enactment of Act 84 in 1998, the legislature amended section 8127 to allow the attachment of wages to collect restitution. Thus, since Act 84, there is no question that the Department can attach an inmate’s “wages” to collect restitution. Although this court concluded in Mays that an inmate’s "wages” do not constitute personal wages under section 8127, the legislature now has stated otherwise.