The opinion of the court was delivered by: Bonnie Brigance Leadbetter, President Judge
SUBMITTED: December 2, 2011
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
PRESIDENT JUDGE LEADBETTER*fn1
Before this Court are the preliminary objections of the Pennsylvania Department of Corrections (Department), to the petition for review in our original jurisdiction*fn2 filed by Jeffrey Neal Saxberg (Saxberg), pro se, seeking the return of funds deducted from his inmate account pursuant Section 9728(b)(5) of the Sentencing Code, 42 Pa. C.S. § 9728(b)(5) (hereinafter, Act 84).*fn3 Saxberg contends that inasmuch as the sentencing order did not impose costs on him, the deductions were unauthorized.*fn4 The Department challenges jurisdiction, demurs and objects to the format of Saxberg's pleading. We overrule in part and sustain in part the Department's preliminary objections.
Initially we note that, in ruling on preliminary objections, we accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. Marrero by Tabales v. Commonwealth, 709 A.2d 956 (Pa. Cmwlth. 1998). 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.
In his petition, Saxberg avers that on March 19, 1999, he was given a mandatory sentence of life without parole after a jury convicted him of first degree murder. Following his conviction and while an inmate at S.C.I. Retreat, the Department began deducting 20% per month from his prison account under Act 84. Saxberg alleges that the deductions continued until a total amount of $910.50 was collected, and that it is now paid in full. According to Saxberg, sometime in October 2010, while incarcerated at S.C.I. Camp Hill, he noticed that the sentencing order did not impose fines or costs. Petition for Review, Ex. A, Sentencing Order. Saxberg alleges that the only mention of costs is on Form DC-16D, Sentence Status Summary, a Department-created form, which lists costs at $910.50. Petition for Review, Ex. B. Saxberg avers that he wrote to the Inmate Accounts department and to the Inmate Records department to ask why these deductions were made when the sentencing court did not impose any fines or costs either orally at the sentencing hearing or in the written sentencing order, but contends that he did not receive any response or that the response merely recited policy without further explanation.*fn5
Saxberg avers that he filed an Official Inmate Grievance on November 5, 2010, which was denied on November 24, 2010. On December 7, 2010, it was the decision of the Facility Manager of SCI-Camp Hill to uphold the initial response denying Saxberg's grievance. Thereafter, Saxberg requested further review of this decision and his appeal was referred to the Office of Chief Counsel on January 27, 2011. The Final Appeal Decision upholding the denial of Saxberg's grievance was dated February 9, 2011. Saxberg then filed the within petition, titled, "Petition For Review/Action In Mandamus," with this court.
In his petition, Saxberg argues that because there is nothing in the transcript from his sentencing hearing that the judge ordered fines and costs to be paid along with his mandatory sentence of life without possibility of parole and further that there is nothing written on his sentencing order indicating that fines or costs were imposed, the Department's actions were not authorized. Saxberg asserts that the Department has refused to provide him with any order or other documentation authorizing the Act 84 deductions and that he was not "made a party to such fines and costs at or after sentencing as the color of the law was to reflect at the time," thus raising a vague due process claim. Petition for Review, at 5. Saxberg further avers, rather vaguely, that a double jeopardy issue was created by the Department's unauthorized Act 84 deductions, since the Department could only have made such deductions pursuant to an order received after he was sentenced, and that such actions implicate the double jeopardy prohibition against multiple punishment for the same offense. Saxberg seeks "relief in the form of judgment against the . . . defendants, for deductions made from [his] prison account through Act 84 when his Sentencing Order shows no fines or costs were ordered at the time of his sentencing." Id. at 1. Saxberg requests that this court grant the relief requested, specifically, that $910.50 be deposited into his inmate account within 30 days after the decision of this court, along with costs of the appeal.
In preliminary objections, the Department first objects on the ground that this court lacks subject matter jurisdiction over appeals from inmate grievances, citing Portalatin v. Department of Corrections, 979 A.2d 944 (Pa. Cmwlth. 2009). The Department also avers that this court lacks jurisdiction to hear Saxberg's claims because a challenge under the double jeopardy clause implicates the legality of his sentence, which must be brought under the Post Conviction Relief Act, 42 Pa. C.S. § 9542, and further, that because it had no role in determining his sentence, the Department is not a proper party to such a challenge.
While we agree with the Department that we lack jurisdiction over appeals from inmate grievances, see, e.g., Portalatin v. Department of Corrections, we do not agree that the substance of his petition is an appeal from the denial of his inmate grievance. We also do not agree that Saxberg's petition is an illegal or improper attack on the underlying sentencing order, which he should have brought under a PCRA petition. The nature of Saxberg's challenge is that the sentencing court did not impose costs at the sentencing hearing nor did it expressly order any payment of costs in its written sentencing order, and that without such an express directive, the Department's deductions from his inmate account were unauthorized. Accordingly, we conclude that this matter is properly before us in our original jurisdiction. Spotz v. Commonwealth, 972 A.2d 125 (Pa. Cmwlth. 2009). For these reasons, we overrule the Department's preliminary objection as to jurisdiction.
The Department demurs on the ground that Saxberg cannot prevail in his claim that costs were improperly deducted because Act 84 authorizes the deduction of money from the inmate's account where there is a court order imposing costs and here the sentencing order directed payment of costs insofar as it included the preprinted word "Costs," and the order was signed by the judge.*fn6
According to the Department, all of Saxberg's claims then fall away, because once it has in hand a sentencing order from the court imposing costs, it does not matter that the amount of costs was not specified, because this court has held that ministerial calculation is for the Clerk of Courts to perform. Richardson v. Dep't. of Corr., 991 A.2d 394 (Pa. Cmwlth. 2010). Furthermore, the Department contends that Saxberg's due process claim fails because his sentencing hearing afforded him all of the process he was due prior to the initiation of Act 84 deductions. Buck v. Beard, 583 Pa. 431, 879 A.2d 157 (2005). Finally, the Department argues that there is no double jeopardy violation, because we have held that Act 84 is not penal in nature as it neither defines a crime nor imposes additional punishment against a defendant, but instead provides a procedure for the Department to collect court ordered obligations. Russell v. Donnelly, 827 A.2d 535 (Pa. Cmwlth. 2003).*fn7
Section 9728 directs the Department to develop guidelines for deductions from inmate personal accounts. In ...