Harding v. Stickman

DISSENTING OPINION BY

JUDGE FRIEDMAN.

I respectfully dissent. The majority sustains the demurrer filed by Superintendent Stickman of SCI Greene, Inmate Accounts Supervisor of SCI Greene, and Jeffrey A. Beard, Secretary of Corrections of Camp Hill, PA (Respondents) and dismisses the petition for review (Petition) filed by James Harding (Harding). I submit that, in doing so, the majority fails to follow the rule of law governing preliminary objections.

In ruling on preliminary objections, we must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. Harris v. Horn, 747 A.2d 1251 (Pa.Cmwlth.2000). Moreover, in order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them. Id.

Harding’s petition sets forth the following material allegations. By letter dated April 14, 2000, the Department of Corrections (Department) notified Harding, in pertinent part, as follows:

The Business Office received court order(s) as listed on the attached report(s) directing the collection of applicable res-titutions, fees, costs, and fines, from your institution account in accordance with Department of Corrections’ policy DC-ADM 005. Accordingly, your institution account has been assessed for the *1114collection and transmittal of monies to them.
The Business Office through deductions from your institution account will collect monies owed in accordance with the Department’s policy by:
-> Deducting initial payment of 20-percent from your institution’s account balance regardless of source.
-> Deducting subsequent payments of SO^percent from all of your monthly income provided that you have a balance which exceeds $10.

(Petition at ¶ 5(c), 1st Document) (emphasis added). Harding admits that there is a court order directing Harding to pay $753.00 in fines, costs and restitution. (Petition at ¶ 1, 2nd and 4th Documents.) However, Harding alleges that the court order does not direct collection of the fines, costs and restitution while he is incarcerated. (Petition at ¶ 5(b), ¶ 5(d).) Thus, Harding is not contesting the amount that he owes; rather, Harding is contesting the collection of this court-ordered obligation pursuant to the Department’s policy rather than pursuant to statutory authority.

In addition to his $753.00 debt, Harding alleges that he owes $11,943.00 in child support payments and approximately $2,000 for other court-ordered obligations. (Petition at ¶ 5(i), 7th to 13th Documents.) Moreover, while the Department was deducting money from Harding’s inmate account to pay the $753.00, Harding requested that the Department send money from his inmate account to the mother of his children for child support. However, the Department would not do so until Harding filed an official request questioning the Department’s refusal. (Petition, 14th Document.) Thereafter, Harding was permitted to send monthly payments of $5.00 or $10.00 to the mother of his children for child support. (Petition, 15th and 16th Documents.)

In May 2002, Harding sought a pay raise of two cents an hour because of the heavy financial burden he bore due to increasing inmate living expenses and his extensive debt. (Petition at ¶ 5(L).) Harding was earning forty-two cents an hour cleaning the showers and the tier for his housing unit, but he could not obtain the pay raise. (Petition, 20th and 21st Documents.)

On September 25, 2002, Harding filed a grievance challenging the Department’s twenty-percent deductions from his inmate account under Boofer v. Lotz, 797 A.2d 1047 (Pa.Cmwlth.2002), appeal granted in part, 572 Pa. 567, 817 A.2d 1079 (2003). Harding sought an ability-to-pay hearing with the courts and a hearing with the superintendent. (Petition, 22nd Document.) The Department’s response, dated October 4, 2002, stated that: (1) the Department was in possession of a court order indicating that Harding owes $753.00; and (2) the Department is obligated to assess Harding’s inmate account each month under Act 84 1 to collect that court-ordered obligation. (Petition, 23rd Document.)

On October 11, 2002, after the grievance failed, Harding filed his Petition with this court. Harding seeks an order directing the Department to cease the twenty-percent deductions from his inmate wages pending an ability-to-pay hearing under Boofer. Respondents subsequently filed their demurrer. Thus, the inquiry here is whether, based on the well-pleaded facts, Harding is entitled to an ability-to-pay hearing under Boofer.

In Boofer, this court pointed out that section 9730(b) of the Sentencing Code *1115provides for an ability-to-pay hearing when a defendant defaults in the payment of fines, costs or restitution. 42 Pa.C.S. § 9730(b). If the court determines that the defendant is unable to pay the fines, costs or restitution in a single payment, the court will determine the appropriate installments, considering the defendant’s financial resources. Id. Section 9730(b) of the Sentencing Code does not exclude defendants who are incarcerated; the procedure applies to all defendants who default in the payment of fines, costs or restitution.

Act 84 established a means for collecting a prisoner’s unpaid fines, costs and restitution by authorizing the attachment of a prisoner’s wages and the deduction of the appropriate installment from the prisoner’s inmate account after an ability-to-pay hearing. See Boofer; section 8127(a) of the Judicial Code, 42 Pa.C.S. § 8127(a); and section 9728(b) of the Sentencing Code, 42 Pa.C.S. § 9728(b).

Here, pursuant to section 9728(b), the clerk of courts sent a court order to the Department showing a debt of $753.00. The Department proceeded to deduct twenty percent from Harding’s earnings pursuant to the Department’s policy. However, as stated in Boofer, there is no legal authority for a policy that deducts twenty percent of earnings without an ability-to-pay hearing. Indeed, section 9730(b) of the Sentencing Code gives the courts legal authority to determine the appropriate deduction. Therefore, the Department’s twenty-percent deductions are illegal until a court determines that Harding is able to pay that amount.

In addition, I point out that Harding has court-ordered child support obligations. As stated in Boofer, when a court issues an order for the attachment of wages, the court must give priority to child support payments. Section 8127(b) of the Sentencing Code, 42 Pa.C.S. § 8127(b). It is apparent that the Department’s policy does not give priority to child support payments. In fact, it seems that the Department’s policy does not even consider a prisoner’s child support obligations. In this case, the Department refused to release child support money from Harding’s inmate account until Harding challenged the Department. To the extent that the Department’s policy ignores a prisoner’s child support obligations, the policy is contrary to law.

In reaching a contrary result, the majority states that Harding has an adequate remedy at law through the Department’s grievance system. (Majority op. at 1112.) I disagree that this is an adequate remedy. Harding’s grievance challenged the legality of the Department’s policy, and the Department simply ruled that its policy was legal. The Department was not going to rule otherwise. Therefore, the grievance procedure did not provide Harding with an adequate remedy.

The majority also states that Harding has an adequate remedy at law through post-conviction relief, i.e., Harding could challenge the court order directing the Department to deduct money from his inmate account. (Majority op. at 1112, 1113 n. 3.) However, as indicated above, Harding alleges that there is no court order directing the Department to deduct money from his inmate account. We must accept that as true. Therefore, post-conviction relief does not provide an adequate remedy at law.

The majority also states that Harding’s right to relief is not clear because section 9728(b) authorizes the Department to make deductions from Harding’s inmate account. (Majority op. at 1112.) However, the question here is whether section 9728(b) authorizes the Department to deduct twenty percent of Harding’s earnings *1116from his inmate account. As we stated in Boofer, there is no legal authority allowing the Department to determine the amount to deduct from an inmate account. That is a matter for the courts. 42 Pa.C.S. § 9730(b). Therefore, I submit that Harding’s right to relief is clear.

Finally, the majority states that Harding is not entitled to an ability-to-pay hearing because the deductions in this case are based on a court order rather than a clerk of court’s request.2 (Majority op. at 1112.) I am puzzled by this analysis. I agree that the twenty-percent deduction in Boofer was based on the clerk of court’s request. However, the twenty-percent deduction in this case is based on the Department’s policy, not a court order. Again, Harding alleges that there is no court order requiring him to pay any amount of his court-ordered obligations while he is incarcerated. We must accept this as true.

Accordingly, I would overrule the demurrer.

. Act of June 18, 1998, P.L. 640.

. The majority notes that, in Commonwealth v. Fleming, 804 A.2d 669 (Pa.Super.2002), our superior court determined that an inmate is entitled to an ability-to-pay hearing "only” where the Commonwealth initiates an enforcement action for unpaid fines. (Majority op. at 1113 n. 2.) I do not agree that this is the holding in Fleming. Moreover, Fleming does not apply here because it deals with an enforcement action in a criminal proceeding under section 9772 of the Sentencing Code, 42 Pa.C.S. § 9772, which is why our superior court exercised jurisdiction over the matter. The correct section to apply in this case, which is a civil proceeding to determine the amount to be deducted from an inmate account before initiating the procedure set forth in section 9728(b), is section 9730(b) of the Sentencing Code.