              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph P. Guarrasi,                       :
                   Petitioner             :
                                          :    No. 176 M.D. 2018
             v.                           :
                                          :    Submitted: July 20, 2018
County of Bucks; Bucks County             :
Sheriff’s Department; Clerk of            :
Courts of Bucks County,                   :
                  Respondents             :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                   FILED: September 14, 2018


             Before the Court in our original jurisdiction are the preliminary objections
filed by the County of Bucks, Bucks County Sheriff’s Department, and the Clerk of
Courts of Bucks County (collectively, Respondents) to the petition for review (Petition)
filed by Joseph P. Guarrasi (Petitioner). Petitioner has filed preliminary objections to
Respondents’ preliminary objections.          We overrule Respondents’ preliminary
objections and dismiss Petitioner’s objections as moot.
             On March 15, 2018, Petitioner, a former attorney, filed the Petition and
averred as follows. On March 28, 2005, upon entering guilty pleas to various crimes
for orchestrating an insurance scam and arranging a contract killing (the murder did
not occur) so that he could open a “Kama Sutra” sex club, a trial court sentenced
Petitioner to 6 and ½ to 15 years’ imprisonment.1 Petitioner filed a petition under the
Post Conviction Relief Act (PCRA)2 on June 29, 2007, and the trial court granted him
in forma pauperis (IFP) status per Pa.R.C.P. No. 240 for purposes of the PCRA
proceedings. The PCRA proceedings experienced delays and lasted from 2007 to
2015, and, during this time, Petitioner was transported from the prison to the
courthouse on multiple occasions. Subsequently, Respondent Sheriff’s Department
issued Petitioner bills reflecting transportation costs totaling $3,533.60 for 12 trips.
Petitioner inquired into the matter, and Respondent Clerk of Courts informed him that
the fees were not imposed pursuant to a sentencing order, or any court order. Instead,
the costs were assessed under the “transportation costs” provision in section 9728(g)
of the Sentencing Code,3 which was enacted and became effective on November 9,
2006, after Petitioner’s judgment of sentence. Petitioner then contacted personnel from
the trial court, who informed Petitioner that he could not challenge the transportation
costs under the PCRA because any such petition could not meet an exception to the
one-year limitations period. (Pet. ¶¶5-25.)



       1
         Petitioner does not include facts in the Petition related to his criminal conduct and sentence.
These facts are taken from the decision of the Superior Court denying Petitioner post-conviction
relief. See Commonwealth v. Guarrasi (Pa. Super., No. 3514 EDA 2015, filed November 15, 2016)
(unreported), slip op. at 1-2.

       2
           42 Pa.C.S. §§9541-9546.

       3
          Amended by section 1 of the Act of November 9, 2006, P.L. 1352, 42 Pa.C.S. §9728(g)
(“Any sheriff’s costs, filing fees and costs of the county probation department, clerk of courts or other
appropriate governmental agency, including, but not limited to, any reasonable administrative costs
associated with the collection of restitution, transportation costs and other costs associated with the
prosecution, shall be borne by the defendant and shall be collected by the county probation department
or other appropriate governmental agency along with the total amount of the judgment and remitted
to the appropriate agencies at the time of or prior to satisfaction of judgment.”) (emphasis added).



                                                   2
              Based on these averments, Petitioner asserts that the applicable portion of
section 9728(g) of the Sentencing Code was enacted after he was sentenced and that
there were no court orders authorizing the imposition of transportation costs in the
interim; therefore, section 9728(g), as applied, constitutes an impermissible retroactive
law under the Ex Post Facto Clause of the Pennsylvania Constitution.4 Petitioner
further contends, in the alternative, that the bills for transportation costs should be
stricken because they run contrary to the IFP status he obtained during the PCRA
proceeding and also equitable principles. For relief, Petitioner requests an order
enjoining Respondents from collecting transportation costs incurred in connection with
the PCRA proceedings, a declaration stating that section 9728(g) of the Sentencing
Code violates the Ex Post Facto Clause, and an order that strikes and/or vacates the
transportation costs as being imposed in contravention of the law. (Pet. ¶26, Wherefore
Clause.)
              On April 20, 2018, Respondent Clerk of Courts filed preliminary
objections. Respondent Clerk of Courts argues that the Petition should be dismissed
(1) for lack of subject matter jurisdiction because the matter falls under the PCRA and
original jurisdiction under the PCRA resides in the court of common pleas, and (2) as
barred by the statute of limitations because the costs were imposed for transportation
services that occurred more than one year prior to the date on which the Petition was
filed.
              On June 1, 2018, Respondent Sheriff’s Department filed preliminary
objections.    Respondent Sheriff’s Department asserts that the Petition should be
dismissed (1) under the governmental immunity provisions of sections 8541 and 8542

         4
          Pa. Const. art. I, §17 (“No ex post facto law, nor any law impairing the obligation of
contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.”).



                                                3
of the Judicial Code,5 (2) as barred by the statute of limitations, and (3) for failing to
state a claim on the ground that Petitioner had received $35,000.00 from a settlement
agreement with his malpractice insurance carrier, and Pa.R.C.P. No. 240(g)6 authorized
collection of the costs from this sum. With respect to the first preliminary objection,
Respondent Sheriff’s Department referenced and attached a copy of the transportation
bills which itemize the expenses for 12 trips from January 2008 to October 2013. With
respect to the third preliminary objection, Respondent Sheriff’s Department referenced
and attached a copy of Petitioner’s civil complaint against an attorney and the
settlement agreement.
                With their preliminary objections, Respondents filed memoranda of law
in support of their positions.
                Petitioner, in turn, filed replies to Respondents’ preliminary objections.
On June 14, 2018, Petitioner filed preliminary objections to Respondents’ preliminary
objections. He filed a brief in support on June 20, 2018.


                                            Discussion
                In ruling on preliminary objections, the Court must accept as true all well-
pleaded material facts and all inferences reasonably deducible therefrom. Barndt v.
Pennsylvania Department of Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006).
However, the Court is not required to accept as true legal conclusions, unwarranted
factual inferences, argumentative allegations, or expressions of opinion. Armstrong


       5
           42 Pa.C.S. §§8541-8542.

       6
          Pa.R.C.P. No. 240(g) (“If there is a monetary recovery by judgment or settlement in favor
of the party permitted to proceed [IFP], the exonerated fees and costs shall be taxed as costs and paid
to the prothonotary by the party paying the monetary recovery. In no event shall the exonerated fees
and costs be paid to the indigent party.”).


                                                  4
County Memorial Hospital v. Department of Public Welfare, 67 A.3d 160, 170 (Pa.
Cmwlth. 2013) (en banc).
               By way of background, the General Assembly amended section 9728 of
the Sentencing Code in late 2006, apparently in response to Fordyce v. Clerk of Courts,
869 A.2d 1049 (Pa. Cmwlth. 2005), to expressly include “transportation costs” as a
recoverable expense for the “costs of prosecution.”                   See 42 Pa.C.S. §9728(g);
Commonwealth v. Morales-Rivera, 67 A.3d 1290, 1292-94 (Pa. Cmwlth. 2013). In
2010, the General Assembly added sections to the Sentencing Code providing that a
defendant is liable for all enumerated statutory costs, including transportation costs,
and permitting the government to collect the costs, even in the absence of a court order
imposing them upon a defendant. See 42 Pa.C.S. §9721(c.1),7 see also 42 Pa.C.S.
§9728(b.2).8
               Here, Petitioner avers that Respondents have billed him for transportation
costs, without an authorizing court order, pursuant to section 9728(g) of the Sentencing
Code, and he correctly observes that this subsection of the statute was enacted
subsequent to his judgment of sentence entered on March 25, 2005. On these facts,
Petitioner has set forth a plausible claim that Respondents are attempting to utilize
section 9728(g)—as well as section 9721(c.1)—retroactively and in a manner that runs


       7
         Added by section 2 of the Act of October 27, 2010, P.L. 949 (“In the event the court fails to
issue an order for costs pursuant to section 9728, costs shall be imposed upon the petitioner under this
section. No court order shall be necessary for the petitioner to incur liability for costs under this
section. The provisions of this subsection do not alter the court’s discretion under Pa.R.Crim.P. []
706(C) (relating to fines or costs).”).

       8
          Added by section 2 of the Act of October 27, 2010, P.L. 949 (“Notwithstanding any
provision of law to the contrary, in the event the court fails to issue an order under subsection (a)
imposing costs upon the defendant, the defendant shall nevertheless be liable for costs, as provided
in section 9721(c.1) . . . . The absence of a court order shall not affect the applicability of the
provisions of this section.”).


                                                   5
afoul of the Ex Post Facto Clause. See Commonwealth v. Allshouse, 924 A.2d 1215,
1230 (Pa. Super. 2007), aff’d, 985 A.2d 847 (Pa. 2009) (addressing the issue of
“whether the amended version of [section] 9728(g) can be applied retroactively to
uphold the trial court’s award of transportation costs” and concluding that the “penal
statute” cannot be applied retroactively “as such application would constitute an ex post
facto law.”); Rega v. Pennsylvania Department of Corrections (Pa. Cmwlth., No. 244
M.D. 2017, filed January 31, 2018) (unreported), slip op. at 7-8 (“Respondents cannot
rely on Section 9721(c.1) to excuse the absence of a court order because such
application would constitute an ex post facto law.”).9 That said, the Court addresses
Respondents’ preliminary objections in this order: lack of subject matter jurisdiction,
governmental immunity, the statute of limitations, and, finally, Pa.R.C.P. No. 240(g).


                              Subject Matter Jurisdiction
              While the PCRA is designed to provide the exclusive remedy for those
individuals who are “serving unlawful sentences,” 42 Pa.C.S. §9542, the statutory
scheme “contemplates only challenges to the propriety of a conviction or a sentence.”
Commonwealth v. Masker, 34 A.3d 841, 843 (Pa. Super. 2011) (en banc). In Saxberg
v. Pennsylvania Department of Corrections, 42 A.3d 1210 (Pa. Cmwlth. 2012), an
inmate filed a petition for review in this Court asserting that the trial court did not
impose costs at the sentencing hearing or in its written sentencing order and contended
that, without such an express directive, the defendant could not make deductions from
his account under section 9728(b)(5) of the Sentencing Code. We concluded that the
petition for review was “properly before us in our original jurisdiction” and rejected
the defendant’s argument that the action should have been commenced under the

       9
         We cite Rega for its persuasive value. See Section 414(a) of the Commonwealth Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).


                                              6
PCRA, reasoning that the petition did not constitute “an illegal or improper attack on
the underlying sentencing order.” Saxberg, 42 A.3d at 1212. Our holding in Saxberg
is controlling, and we overrule Respondents’ preliminary objection based on subject
matter jurisdiction.


                              Governmental Immunity
             In the Petition, Petitioner does not request money damages or an order
requiring governmental officials to perform an affirmative act, such as returning
property or money. Rather, Petitioner seeks declaratory and injunctive relief for an
alleged constitutional violation.    Our courts have long held that governmental
immunity cannot shield these types of claims. See E-Z Parks Inc. v. Larson, 498 A.2d
1364, 1370 (Pa. Cmwlth. 1985), aff’d, 503 A.2d 931 (Pa. 1986) (noting that
“governmental immunity under Section 8541 of the Judicial Code extends only to
liability for damages” and determining that immunity does not apply to other forms of
equitable relief that do not request damages (emphasis in original)); see also
Wilkinsburg Police Officers Association v. Commonwealth of Pennsylvania, 636 A.2d
134, 137 (Pa. 1993) (concluding that “sovereign immunity poses no bar to the
[plaintiff’s] prayer for injunctive relief” and the counts that “only seek a declaration
that certain provisions of [a statute] are unconstitutional”); R.H.S. v. Allegheny County
Department of Human Services, Office of Mental Health, 936 A.2d 1218, 1228 (Pa.
Cmwlth. 2007) (holding that, notwithstanding governmental immunity, “[c]laims
arising from violations of the Pennsylvania Constitution may still be raised against
local governments”). We overrule Respondents’ preliminary objection asserting the
defense of governmental immunity.




                                           7
                                Statute of Limitations
            It is well-settled that “claims for equitable relief are not subject to statutes
of limitations.” Lake v. Hankin Group, 79 A.3d 748, 756 (Pa. Cmwlth. 2013); see In
re Estate of Moskowitz, 115 A.3d 372, 379-80 (Pa. Super. 2015). Although declaratory
judgment actions are generally subject to a four-year statute of limitations, in cases
where payment is sought, the cause of action or “actual controversy” does not typically
accrue or arise until the payment is either due or made. See American Motorists
Insurance Co. v. Farmers Bank and Trust Company of Hanover, 644 A.2d 1232, 1235
(Pa. Super. 1994) (stating that a cause of action accrues “for each payment as it
becomes due” and holding that the four-year statute of limitations for declaratory
judgment actions “does not bar [the insured] from contesting its current and future
obligations under the policy, as well as those payments which were made within the
four years preceding” the petition for declaratory judgment); see also Pennsylvania
Turnpike Commission v. Atlantic Richfield Co., 375 A.2d 890, 892 (Pa. Cmwlth. 1977).
            Pursuant to section 9728(b)(4) of the Sentencing Code, payments for costs
are seemingly due when the amount has been “entered as a judgment upon the person
or the property of the person.” 42 Pa.C.S. §9728(b)(4). Under section 9728(b)(5), the
costs can be deemed to be paid when the county correctional facility or Department of
Corrections “make monetary deductions from inmate personal accounts.” 42 Pa.C.S.
§9728(b)(5). However, there is nothing in the parties’ filings to suggest that the
transportation costs were reduced to and indexed as a judgment or that deductions were
made from Petitioner’s inmate account. Moreover, the bills for transportation costs do
not list a payment due date, and there are no factual averments to indicate whether
Respondents have issued warnings and/or notices to Petitioner that they would pursue
the entry of judgment or make deductions in the event the bills were not paid by a



                                            8
certain date. Consequently, there exists issues of fact that must be resolved through
further development of the record, and we overrule Respondents’ preliminary objection
claiming that the action is barred by the statute of limitations.


                                      Pa.R.C.P. No. 240
               By its terms, Rule 240 governs IFP status in “all civil actions and
proceedings except actions pursuant to the Protection from Abuse Act,[10]” Pa.R.C.P.
No. 240(a), and permits a party to proceed IFP without having “to pay the costs of
litigation.” Pa.R.C.P. No. 240(b). If a party proceeding IFP settles the civil action,
subsection (g) of the Rule allows reimbursement from the settlement funds only to
cover “the exonerated fees and costs,” Pa.R.C.P. No. 240(g), incurred in connection
with the civil action. The Rule, however, does not provide an independent basis upon
which to impose or collect transportation costs against a criminal defendant in PCRA
proceedings, much less where no monetary settlement had occurred in those
proceedings. Moreover, as mentioned above, Petitioner has pled a viable claim that
section 9728(g) of the Sentencing Code—the sole statute authorizing the imposition of
transportation costs—is unconstitutional as applied to his set of circumstances.
Therefore, assuming that Petitioner had received money as a result of the settlement
agreement, Respondents cannot employ Pa.R.C.P. No. 240(g) as the means by which
to recoup transportation costs from the settlement fund when there may be no valid
legal basis to charge Petitioner with those costs in the first instance. We overrule
Respondents’ preliminary objection based on Pa.R.C.P. No. 240(g).




      10
           Act of October 7, 1976, PL 1090, No. 218, 35 P.S. §§10181-10190.


                                                9
                                     Conclusion
            Accordingly, we overrule Respondents’ preliminary objections. Due to
this resolution, we need not address Petitioner’s preliminary objections to the
preliminary objections and dismiss those objections as moot. Respondents shall file an
answer(s) to the Petition within 30 days of this opinion and its accompanying order.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                         10
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph P. Guarrasi,                     :
                   Petitioner           :
                                        :    No. 176 M.D. 2018
            v.                          :
                                        :
County of Bucks; Bucks County           :
Sheriff’s Department; Clerk of          :
Courts of Bucks County,                 :
                  Respondents           :



                                     ORDER


            AND NOW, this 14th day of September, 2018, the preliminary
objections filed by the County of Bucks, Bucks County Sheriff’s Department, and
the Clerk of Courts of Bucks County (collectively, Respondents) to the petition for
review filed by Joseph P. Guarrasi (Petitioner) are OVERRULED. The preliminary
objections filed by Petitioner to Respondents’ preliminary objections are
DISMISSED as moot. Respondents shall file an answer(s) within 30 days of this
order.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
