           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Morgalo,                               :
                             Petitioner        :
                                               :
              v.                               :
                                               :
Sandra Gorniak,                                :
(SCI Albion Accountant)                        :
                                               :
              v.                               :
                                               :
Montgomery County Clerk of                     :
Courts,                                        :   No. 489 M.D. 2013
                      Respondents              :   Submitted: February 11, 2015


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE BONNIE BRIGANCE LEADBETTER, Judge2
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge3
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge


OPINION BY
JUDGE COVEY                                        FILED: March 8, 2016

              Michael Morgalo (Morgalo), pro se, filed a Request to Stop
Deduction(s) and Return of Monies from Inmate’s Account (Petition) in this
Court’s original jurisdiction on September 27, 2013. Therein, Morgalo requests

       1
          This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
        2
          This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
        3
          This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
this Court to direct the Pennsylvania Department of Corrections (Department)
Inmate Accounting Office/Inmate Accountant Sandra Gorniak (Gorniak) to stop
deducting monies from his inmate account and to order the Inmate Accounting
Office and the Montgomery County Clerk of Courts to return funds previously
deducted therefrom because his sentencing orders do not authorize deductions until
he is paroled. In response, the Department filed preliminary objections to dismiss
Morgalo’s Petition pursuant to Pennsylvania Rule of Civil Procedure Number
1028(a)(4) on the grounds that it (1) is time-barred, and (2) fails to state a claim
upon which relief may be granted.4 The Department’s preliminary objections are
currently before the Court.
              This Court’s review of preliminary objections is limited to the
pleadings. Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation &
Natural Res., 909 A.2d 413 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007).

             [This Court is] required to accept as true the well-pled
             averments set forth in the . . . complaint, and all
             inferences reasonably deducible therefrom. Moreover,
             the [C]ourt need not accept as true conclusions of law,
             unwarranted inferences from facts, argumentative
             allegations, or expressions of opinion. In order to sustain
             preliminary objections, it must appear with certainty that
             the law will not permit recovery, and, where any doubt
             exists as to whether the preliminary objections should be
             sustained, the doubt must be resolved in favor of
             overruling the preliminary objections.
Id. at 415-16 (citations omitted).


       4
          Originally, the Department’s preliminary objections also sought to dismiss Morgalo’s
Petition under Pennsylvania Rule of Appellate Procedure 1514(c) for lack of personal
jurisdiction/improper service. On December 4, 2013, this Court ordered Morgalo to make proper
service. By December 30, 2013 order, this Court overruled that preliminary objection based
upon Morgalo’s compliance with its December 4, 2013 order.


                                              2
             According to Morgalo’s Petition, and his Memorandum of Law and
exhibits incorporated therein, Morgalo is incarcerated in the State Correctional
Institution at Albion (SCI-Albion), Pennsylvania.        On June 23, 2003, the
Montgomery County Common Pleas Court (trial court) sentenced Morgalo to 6 to
23 months’ incarceration, followed by a consecutive two years of probation
(Docket No. 7235 of 2002). The sentencing order stated: “[Morgalo] is sentenced
to pay the costs of prosecution, and a fine of $500.00 and restitution of $_____ to
____ within the first 17 months of supervision/release from custody in monthly
installments as directed.” Morgalo Pet. Ex. A.
             On April 26, 2004, the trial court sentenced Morgalo to 6 to 23
months’ incarceration, to be served concurrently with his Docket No. 7235 of 2002
sentence, followed by a consecutive two years of probation (Docket No. 1849 of
2002). The sentencing order stated, in pertinent part: “[Morgalo] is sentenced to
pay the costs of prosecution, and a fine of $ -0- and restitution of $ 0 to 0 within
the first    parole months of supervision/release from custody in monthly
installments as directed.” Morgalo Pet. Ex. B.
             On September 13, 2004, the trial court sentenced Morgalo to 9 to 23
months’ incarceration, followed by one year of consecutive probation (Docket No.
3911 of 2004).     The sentencing order stated, in relevant part: “[Morgalo] is
sentenced to pay the costs of prosecution, and a fine of $ -0- and restitution of
$4,744.61 to SEE ATTACHED within the first ___ months of supervision/release from
custody in monthly installments as directed. RESTITUTION      JOINT/SEVERAL W/CO

DEFT.”   Morgalo Pet. Ex. C.
             On July 10, 2008, the trial court sentenced Morgalo to 16 to 32 years’
incarceration (Docket No. 139 of 2007). The sentencing order stated: “[Morgalo]


                                         3
is sentenced to pay the costs of prosecution, and a fine of $ - and restitution of $
-      to       -   within the first           months of supervision/release from custody in
monthly installments as directed.” Morgalo Pet. Ex. E.
                    Also on July 10, 2008, the trial court sentenced Morgalo to 5 to 10
years’ incarceration (Docket No. 9197 of 2006) to be served concurrently with his
Docket No. 139 of 2007 sentence. The sentencing order stated: “[Morgalo] is
sentenced to pay the costs of prosecution, and a fine of $ - and restitution of $ -
to -        within the first           months of supervision/release from custody in monthly
installments as directed.” Morgalo Pet. Ex. D.
                    On September 5, 2008, the Department began making monthly
deductions from Morgalo’s inmate account to satisfy his court costs and restitution
obligation pursuant to Section 9728(b) of the Sentencing Code, 42 Pa.C.S. §
9728(b), commonly known as Act 84.5 Act 84 provides in pertinent part:

                    (3) The county clerk of courts shall, upon sentencing, . . .
                    transmit to . . . the [Department] . . . copies of all orders
                    for restitution . . . , reparation, fees, costs, fines and
                    penalties. This paragraph also applies in the case of costs
                    imposed under [S]ection 9721(c.1) [of the Sentencing
                    Code] (relating to sentencing generally).[6]

            5
          42 Pa.C.S. §§ 9701-9799.41. The Sentencing Code was amended by Section 4 of the
Act of June 18, 1998, P.L. 640.
        6
          Section 9721(c.1) of the Sentencing Code states:

                    Mandatory payment of costs.--Notwithstanding the provisions of
                    [S]ection 9728 [of the Sentencing Code] (relating to collection of
                    restitution, reparation, fees, costs, fines and penalties) or any
                    provision of law to the contrary, in addition to the alternatives set
                    forth in subsection (a), the court shall order the defendant to pay
                    costs. In the event the court fails to issue an order for costs
                    pursuant to [S]ection 9728 [of the Sentencing Code], costs shall be
                    imposed upon the defendant under this section. No court order


                                                     4
               ....
               (5) The . . . [Department] shall be authorized to make
               monetary deductions from inmate personal accounts
               for the purpose of collecting restitution or any other
               court-ordered obligation or costs imposed under
               [S]ection 9721(c.1) [of the Sentencing Code]. Any
               amount deducted shall be transmitted by the
               [Department] . . . to the probation department of the
               county or other agent designated by the county . . . in
               which the offender was convicted. The [Department]
               shall develop guidelines relating to its responsibilities
               under this paragraph.

42 Pa.C.S. § 9728(b) (emphasis added). Section 3.A of Department DC-ADM 005
(Collection of Inmate Debts Procedures Manual) (Debt Collection Manual)
provides:

               Collection of Restitution, Reparation, Fees, Costs,
               Fines and Penalties 42 Pa. C.S. § 9728, Act 84 of 1998
               (Act 84)
            1. When the County Clerk of Courts provides a copy(s) of
               an order(s) for restitution, reparation, fees, costs, fines,
               and/or penalties associated with the criminal proceedings,
               the records office shall file the original and shall forward
               a copy of the order to the business office of the facility
               having custody of the inmate. The court order, the DC-
               300B, Court Commitment Form, or supporting
               information, must indicate the status of the debt including
               the current balance due and any special conditions, which
               would [a]ffect payments.
            2. The business office, through inmate account deductions,
               makes:

               shall be necessary for the defendant 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. No. [sic] 706(C) (relating
               to fines or costs).
42 Pa.C.S. § 9721(c.1).


                                                5
               a. payments of 20% of the inmate’s account balance and
               monthly income for restitution, reparation, fees, costs,
               fines, and/or penalties associated with the criminal
               proceedings pursuant to 42 Pa.C.S. § 9728, Act 84 of
               1998, provided that the inmate has a balance that exceeds
               $10.00; and
               b. payments of 10% of all the inmate’s account balance
               and monthly income, for the Crime Victim’s
               Compensation and Victim/Witness Services Funds,
               provided that the inmate has a balance that exceeds
               $10.00.
           3. The business office shall send the funds deducted to the
              county probation department or other designated agency.
               ....
           5. Court orders that require payment upon, or within a
              certain amount of time after parole or release, may not be
              collected as set forth in this section unless the sentencing
              court stipulates, via court order, that the Department is to
              begin collection prior to the inmate being paroled or
              released. In the event that a court order states payment is
              required on or after parole or release, the Facility
              Records Office Supervisor/designee shall contact the
              court and request clarification of the court order using the
              Court Order Clarification Memo (Attachment 3-A).
Morgalo Pet. Ex. F (bolded in original).

               Morgalo initially sought relief from the deductions and for return of
monies from his inmate account through the Department’s inmate grievance
system.7     On March 22, 2010, he filed Grievance No. 311819 regarding the
allegedly improper Act 84 deductions, but claims he was unable to complete that
process due to a transfer to an out-of-state prison. On May 28, 2013, Morgalo filed
inmate Grievance No. 461892 with the Facility Grievance Coordinator alleging the

      7
          DC-ADM 804 (Inmate Grievance System).


                                           6
unlawful deductions of monies from his prison inmate account stating, “I
submitted previous paperwork to no avail.” Morgalo Pet. Ex. H. That grievance
was denied as having been addressed in 2010. Morgalo Pet. Ex. I. Thus, Morgalo
contends that he exhausted his administrative remedies and now seeks an order
from this Court declaring that the Department was not authorized to make
deductions from his inmate account, ordering reimbursement of the funds deducted
to date, and enjoining further deductions.


            Department’s First Preliminary Objection - Timeliness
             The Department objects to Morgalo’s Petition on the ground that
Morgalo’s claims are time-barred. Initially, the Department contends that since
Morgalo’s requested relief is a mandamus action, the statute of limitations is six
months.
             We acknowledge that this Court has historically applied a six-month
limitations period to inmate account deduction claims. See Curley v. Smeal, 41
A.3d 916 (Pa. Cmwlth. 2012) (Curley I), aff’d but criticized, 82 A.3d 418 (Pa.
2013) (Curley II); see also Lepre v. Susquehanna Cnty. Clerk of Judicial Records
(Pa. Cmwlth. No. 2121 C.D. 2012, filed October 2, 2013); Richards v. Dep’t of
Corr. (Pa. Cmwlth. No. 546 M.D. 2010, filed October 11, 2013); Lusick v. Defacto
Judge Pam Pryor Cohen Dembe (Pa. Cmwlth. No. 549 M.D. 2012, filed
November 7, 2012), aff’d, 84 A.3d 1056 (Pa. 2014); Pierre-Louis v. Dep’t of Corr.
(Pa. Cmwlth. No. 48 M.D. 2010, filed August 14, 2012); Stockton v. Dougherty
(Pa. Cmwlth. No. 31 M.D. 2011, filed July 10, 2012), aff’d, 88 A.3d 968 (Pa.
2014); Zellie v. Dep’t of Corr. (Pa. Cmwlth. No. 97 M.D. 2011, filed March 1,
2012).


                                         7
            Based on stare decisis, this Court applied the six-month limitations
period in Curley I. In Curley II, the Pennsylvania Supreme Court, in a per curiam
opinion, affirmed Curley I on the basis that the inmate’s claim was time-barred,
however, added: “[T]his Court does not embrace the Commonwealth Court’s view
that this action sounds in mandamus or that a six-month statute of limitations
applies to actions in mandamus in this context.” Curley II, 82 A.3d at 418. Chief
Justice Castille filed a concurring statement (joined by Justice Eakin) in which he
articulated that the Court should have gone farther and “correct[ed] the mistakes
below.” Id. In regard to the statute of limitations, the Chief Justice found it
difficult to see how a properly-asserted mandamus action “would lend itself to a
period of limitations analysis; since a mandamus action alleges a failure to act,
there is no action to trigger a specific limitations period.”          Id. at 419.
“[N]otwithstanding [his] disapproval of the Commonwealth Court’s published
holdings on these two points of law,” since the inmate’s claim was also “time-
barred under the two-year period of limitation [the inmate] himself claim[ed] [was]
controlling[,]” the Chief Justice concurred in affirming this Court’s holding that
the inmate’s claim was time-barred. Id. For the following reasons, we overrule
our holding in Curley I and declare that inmate account deduction actions are not
mandamus actions, nor are they subject to a six-month limitations period.
            First, relative to the instant case, Morgalo’s petition does not
expressly reference mandamus, and mandamus cannot be imputed from his
allegations. The Pennsylvania Supreme Court has held:

            ‘Mandamus is an extraordinary writ that will only lie to
            compel official performance of a ministerial act or
            mandatory duty where there is a clear legal right in the
            plaintiff, a corresponding duty in the defendant, and
            want of any other appropriate or adequate remedy.’

                                        8
             Jackson v. Vaughn, . . . 777 A.2d 436, 438 ([Pa.] 2001)
             (citation omitted). It may be used to compel performance
             of a ministerial duty, or to compel action in a matter
             involving judgment or discretion. However, it may not
             be used to direct the exercise of judgment or discretion
             in a particular way, or to direct the retraction or
             reversal of an action already taken. ‘Mandamus is a
             device that is available in our system to compel a tribunal
             or administrative agency to act when that tribunal or
             agency has been ‘sitting on its hands.’ ’ [Pa. Dental
             Ass’n v. Commonwealth Ins. Dep’t, . . . 516 A.2d 647,
             652 ([Pa.] 1986).]

Chanceford Aviation Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors, 923
A.2d 1099, 1107-08 (Pa. 2007) (citations omitted; emphasis added).
             Morgalo’s Petition seeks to have this Court issue an order requiring
the Department to stop the deductions and return the money because its actions
are in contravention of the trial court’s orders directing him to pay the fines, costs
and restitution after he is released from custody. See Morgalo Pet. at 2; see also
Morgalo Memorandum of Law at 5-8; Morgalo Resp. to Prelim. Obj. at 11-15.
Because it is not clear on the face of the Petition that Morgalo’s payments are
indeed due only after his release, there is no clear legal right in him or
corresponding duty in the Department. Moreover, mandamus may not be used to
reverse actions the Department has already taken; thus, it cannot be the basis upon
which this Court may order the Department to stop the deductions and return
previously-deducted funds.      See Chanceford Aviation Props.          Accordingly,
Morgalo’s claim is not a mandamus action.
             Second, a six-month limitations period does not apply in this case.
Section 5522(b)(1) of the Judicial Code requires that any “action against any
officer of any government unit for anything done in the execution of his office,
except an action subject to another limitation specified in this subchapter”

                                          9
must be commenced within six months.                    42 Pa.C.S. § 5522(b)(1) (emphasis
added). In Section 5524 of the Judicial Code, the General Assembly established a
two-year limitations period for certain claims. Of the eight types of actions listed,
only Sections 5524(3) and 5524(6) of the Judicial Code are potentially applicable
to the instant matter.8

      8
          Section 5524 of the Judicial Code states:

                The following actions and proceedings must be commenced within
                two years:

                (1) An action for assault, battery, false imprisonment, false arrest,
                malicious prosecution or malicious abuse of process.

                (2) An action to recover damages for injuries to the person or for
                the death of an individual caused by the wrongful act or neglect or
                unlawful violence or negligence of another.

                (3) An action for taking, detaining or injuring personal property,
                including actions for specific recovery thereof.

                (4) An action for waste or trespass of real property.

                (5) An action upon a statute for a civil penalty or forfeiture.

                (6) An action against any officer of any government unit for the
                nonpayment of money or the nondelivery of property collected
                upon on execution or otherwise in his possession.

                (7) Any other action or proceeding to recover damages for injury
                to person or property which is founded on negligent, intentional, or
                otherwise tortious conduct or any other action or proceeding
                sounding in trespass, including deceit or fraud, except an action or
                proceeding subject to another limitation specified in this
                subchapter.

                (8) An action to recover damages for injury to a person or for the
                death of a person caused by exposure to asbestos shall be
                commenced within two years from the date on which the person is
                informed by a licensed physician that the person has been injured


                                                  10
              Section 5524(3) of the Judicial Code imposes a two-year statute of
limitations for “[a]n action for taking, detaining or injuring personal property,
including actions for specific recovery thereof.” 42 Pa.C.S. § 5524(3). However,
in Commonwealth v. Allen, 59 A.3d 677 (Pa. Cmwlth. 2012), aff’d but criticized,9
107 A.3d 709 (Pa. 2014), this Court declined to apply Section 5524(3) of the
Judicial Code to a motion for return of property and held:

             [A]ll of the reported cases applying Section 5524(3) are
             tort actions commenced by complaint. See, e.g.,
             Kingston Coal Co. v. Felton Mining Co., Inc., . . . 690
             A.2d 284 ([Pa. Super.] 1997) (conversion arising from
             unlawful removal of minerals); Am[.] Ins[.] Co. v. Ford
             Motor Credit Co., . . . 648 A.2d 576 ([Pa. Super.] 1994)
             (surety of tax collector brought suit to recover amounts
             paid to third party out of public funds); Torchia v.
             Keystone Foods Corp., . . . 635 A.2d 1082 ([Pa. Super.]
             1993) (tortious interference with contract rights); Bender
             v. McIlhatten, . . . 520 A.2d 37 ([Pa. Super.] 1987)
             (tortious interference with lease negotiations). None of
             these tort claims can be filed against the
             Commonwealth or a municipal police department
             because they do not fall within the category of torts
             that can be filed against the Commonwealth or a local
             government.
Id. at 680-81 (emphasis added). This Court explained:


              by such exposure or upon the date on which the person knew or in
              the exercise of reasonable diligence should have known that the
              person had an injury which was caused by such exposure,
              whichever date occurs first.
42 Pa.C.S. § 5524.
           9
             In its review of this Court’s Allen decision, the Pennsylvania Supreme Court
“reject[ed] the Commonwealth Court’s reliance on a statute of limitations analysis to resolve the
timeliness of [the a]ppellee’s return motion[.]” Allen, 107 A.3d at 718. However, this Court’s
analysis of Section 5524(3) of the Judicial Code’s applicability to government defendants was
not criticized.


                                               11
              Even if a cause of action has been made out against the
              defendants, the complaint will still fail to state a claim if
              the defendants are entitled to sovereign immunity. The
              test to determine if a Commonwealth employee is
              protected from liability is to consider ‘whether the
              Commonwealth employee was acting within the scope of
              his or her employment; whether the alleged act which
              causes injury was negligent and damages would be
              recoverable but for the availability of the immunity
              defense; and whether the act fits within one of the nine
              exceptions to sovereign immunity.’

Williams v. Syed, 782 A.2d 1090, 1095 (Pa. Cmwlth. 2001) (emphasis added)
(quoting La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992)). In
Section 8522(b) of what is commonly known as the Sovereign Immunity Act,10 the
General Assembly waived sovereign immunity for damages caused in nine specific
instances, none of which apply to this case.11 42 Pa.C.S. § 8522(b). Accordingly,
Section 5524(3) of the Judicial Code’s two-year limitations period does not
supersede Section 5522(b)(1) of the Judicial Code’s six-month time limit.



       10
           42 Pa.C.S. §§ 8521-8528.
       11
            A Commonwealth party may be liable under Section 8522(b) of the Sovereign
Immunity Act for damages due to: (1) vehicle liability; (2) medical-professional liability; (3)
care, custody or control of personal property; (4) Commonwealth real estate, highways and
sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals;
(7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa.C.S. §
8522(b).
        Although the Commonwealth may be liable to an inmate for damage to or negligent
handling of personal property under its care, custody or control, Williams v. Stickman, 917 A.2d
915 (Pa. Cmwlth. 2007), this Court has held that the taking of the property is not conduct that
falls with that exception. See Goodley v. Folino (Pa. Cmwlth. No. 2376 C.D. 2010, filed July 22,
2011). Moreover, rather than negligence, Morgalo’s claim is that Gorniak and the Montgomery
County Clerk of Courts intentionally and deliberately took his money and failed to return it.
“[S]tate employees do not lose their immunity for intentional torts, provided they are acting
within the scope of their employment.” Kull v. Guisse, 81 A.3d 148, 157 (Pa. Cmwlth. 2013).



                                               12
             Section 5524(6) of the Judicial Code, on the other hand, provides that
“[a]n action against any officer of any government unit for the nonpayment of
money or the nondelivery of property collected upon on execution or otherwise
in his possession” must be commenced within two years. 42 Pa.C.S. § 5524(6)
(emphasis added).
             We analyze the first requirement of Section 5524(6) of the Judicial
Code - “[a]n action against any officer of any government unit” - under the
Judicial Code definitions. 42 Pa.C.S. § 5524(6). Section 102 of the Judicial Code
defines “[g]overnment unit” to include “any government agency or any court or
other officer or agency of the unified judicial system.”           42 Pa.C.S. § 102.
“Government agency” is defined as “[a]ny Commonwealth agency . . . .” Id. The
Judicial Code defines “Commonwealth agency” as “[a]ny executive agency or
independent agency.” Id. Executive agencies consist of “the departments, boards,
commissions, authorities and other officers and agencies of the Commonwealth
government[.]” Id. “Commonwealth government” is defined as “[t]he government
of the Commonwealth, including the courts and other officers or agencies of the
unified judicial system, . . . and the departments, boards, commissions, authorities
and officers and agencies of the Commonwealth[.]” Id.
             Article 5, Section 1 of the Pennsylvania Constitution vests the
Commonwealth’s judicial power “in a unified judicial system consisting of the . . .
courts of common pleas . . . .” Pa. Const. art. 5, § 1. The clerk of courts is “[t]he
officer exercising the powers and performing the duties specified in Subchapter C
of Chapter 27 (relating to clerks of the court)” for any of the Commonwealth’s
judicial districts. 42 Pa.C.S. § 102; see also 42 Pa.C.S. § 901.




                                         13
             This Court has determined that an officer of the unified judicial
system and a judicial officer are two separate entities. See Dep’t of Health v.
Hanes, 78 A.3d 676, 685 (Pa. Cmwlth. 2013). Section 102 of the Judicial Code
defines “[c]ounty staff” as “[s]ystem and related personnel . . . other than judicial
officers [which are designated therein as ‘[j]udges, magisterial district judges and
appointive judicial officers’] . . . .”   42 Pa.C.S. § 102.      The Judicial Code
specifically defines “[s]ystem and related personnel” to include clerks of courts.
Id. Although the clerk of courts is considered county staff as opposed to a judicial
officer, he is nevertheless an officer of a Commonwealth government. See Hanes,
78 A.3d at 685 (holding that “[a]lthough Hanes is not a ‘judicial officer,’ he is
named in his official capacity as Clerk of the Orphans’ Court of Montgomery
County. He is, therefore, an officer of the Commonwealth government under
Section 102 of the Judicial Code. . . .”); see also Richardson v. Peters, 19 A.3d
1047 (Pa. 2011) (holding that the Commonwealth Court erred by concluding that
the common pleas clerk of courts was not a Commonwealth officer); Appeal of
Troutman, 936 A.2d 1, 7 (Pa. 2007) (holding that a common pleas clerk of courts
“is considered to be the Commonwealth government as a Commonwealth officer”).
Therefore, the Montgomery County Clerk of Courts is an officer of the
Commonwealth government.
             Because Section 102 of the Judicial Code does not specifically define
“officer,” and we found no case law on point, we must analyze whether Morgalo’s
action against Gorniak, as the Department’s SCI-Albion accountant, qualifies as an
action against a Commonwealth officer. Morgalo’s Petition names Gorniak as a
party to his action, but more specifically therein states that “the Inmate Accounting
Office at SCI-Albion began deducting . . . from [his] account and sending same to


                                          14
the Clerk of Court’s Office of Montgomery County.” Morgalo Pet. ¶ 1. He further
seeks this Court’s intervention “in correcting the Inmate Accounting Office[’]s . . .
error and misinterpretation[.]” Morgalo Pet. ¶ 4. Because Morgalo’s claims are
for Gorniak’s actions within the scope of her employment on the Department’s
behalf, and the Department is defending its deductions, it is clear that the
Department is the Commonwealth party from whom Morgalo is seeking relief.
             Section 8501 of the Judicial Code (relating to matters affecting
government units) defines “Commonwealth party” as “[a] Commonwealth agency
and any employee thereof . . . with respect to an act within the scope of his office
or employment.” 42 Pa.C.S. § 8501. There is no question that the Department is a
Commonwealth agency. See 42 Pa.C.S. § 102; see also McCray v. Pa. Dep’t of
Corr., 872 A.2d 1127 (Pa. 2005).      “Employee” is defined, in pertinent part, as:
“Any person who is acting . . . on behalf of a government unit whether on a
permanent or temporary basis, whether compensated or not and whether within or
without the territorial boundaries of the government unit, including . . . any elected
or appointed officer, member of a governing body or other person designated to act
for the government unit.” 42 Pa.C.S. § 102. Accordingly, we hold that Morgalo’s
claims against Gorniak meet the requirement that the claim be “against any officer
of any government unit[.]” 42 Pa.C.S. § 5524(6).
             The General Assembly did not specifically define the terms of the
second requirement of Section 5524(6) of the Judicial Code – “for the . . .
nondelivery of property . . . in [the government unit officer’s] possession[.]”
42 Pa.C.S. § 5524(6).

             The Statutory Construction Act [of 1972, 1 Pa.C.S. §§
             1501-1991] provides that in interpreting a statute it is
             incumbent that the reviewing court endeavor to ascertain
             the intent of the Legislature and that when the words of a
                                         15
             statute are clear and free of ambiguity we must interpret
             those words by their plain meaning.

Commonwealth v. Cox, 983 A.2d 666, 703 (Pa. 2009); see also People United to
Save Homes v. Dep’t of Envtl. Prot., 789 A.2d 319, 328 (Pa. Cmwlth. 2001) (“if a
statutory provision is not ambiguous, the legislative intent should be effectuated by
according the words their plain and ordinary meaning”). Because the General
Assembly did not define the terms of Section 5524(6) of the Judicial Code therein,
this Court may determine their “common and approved usage . . . by examining
[their] dictionary definition[s].” Commonwealth v. Hart, 28 A.3d 898, 909 (Pa.
2011).
             “Nondelivery” is the “failure to transfer or convey something.”
Black’s Law Dictionary 1152 (9th ed. 2009).         “Personal property” is “[a]ny
movable or intangible thing that is subject to ownership and not classified as real
property.” Id. at 1337. “Possession” is defined as “[t]he fact of having or holding
property in one’s power; the exercise of dominion over property.” Id. at 1281.
Here, because the Department made the monetary deductions and transferred the
money to the Montgomery County Clerk, where it remains despite Morgalo’s
demands, the “nondelivery of property . . . in [the government unit officer’s]
possession” requirement of Section 5524(6) of the Judicial Code is met.           42
Pa.C.S. § 5524(6).
             In Stoppie v. Johns, 720 A.2d 808 (Pa. Cmwlth. 1998), this Court
reasoned that if Section 5524(6) of the Judicial Code designates a statute of
limitations for the specific conduct at issue, it prevails over the six-month
limitations period in Section 5522(b)(1) of the Judicial Code which applies when
the specific stated activity does not have an otherwise designated limitations



                                         16
period.12 Because Section 5524(6) of the Judicial Code applies specifically to a
government unit officer’s non-delivery of property over which it has exercised
dominion, Section 5524(6) of the Judicial Code’s two-year limitations period
applies over Section 5522(b)(1) of the Judicial Code’s six-month time limit. Thus,
Morgalo’s action for return of his inmate account monies against Gorniak and the
Montgomery County Clerk of Courts is subject to a two-year statute of
limitations.13
               In the instant case, Morgalo specifically pled that the Department
began making the deductions from his account on September 5, 2008. Applying
the two-year statute of limitations, Morgalo’s action had to be filed with this Court
on or before September 5, 2010 in order to be timely.14 Because Morgalo did not

       12
           We acknowledge that the Stoppie Court’s holding applied to Section 5524(7) of the
Judicial Code, 42 Pa.C.S. § 5524(7), rather than Section 5524(6) of the Judicial Code. However,
in reaching its decision, the Court discussed both provisions. Thus, the Court’s reasoning is
applicable and instructive in the instant case.
        13
           As the Department argued, even if Morgalo’s claim could be deemed a civil rights
action, a two-year statute of limitations period would apply.

               With respect to claims pursuant to 42 U.S.C. § 1983, the [United
               States] Supreme Court has concluded that such claims are best
               characterized as personal injury actions for purposes of state
               statutes of limitations. Wilson v. Garcia, 471 U.S. 261 . . . (1985).
               As such, claims which are brought pursuant to 42 U.S.C. § 1983
               are also subject to a two-year statute of limitations in
               Pennsylvania. See 42 Pa.C.S. § 5524[(7)].
Burger v. Borough of Ingram, 697 A.2d 1037, 1041 (Pa. Cmwlth. 1997).
        14
           In Morgalo’s brief, he clarified that although the deductions began on September 5,
2008, he was not aware of them at that time. Notwithstanding, Pennsylvania courts have
declined to treat these types of deductions as continuing violations that would reset the statute of
limitations. The Pennsylvania Supreme Court has held:

               [A] statute of limitations period begins to run when a cause of
               action accrues; i.e., when an injury is inflicted and the


                                                17
file his Petition with this Court until September 27, 2013, his appeal exceeded the
applicable statute of limitations by three years.
               However, Morgalo claims that he was required to exhaust his
administrative remedies before seeking an order from this Court declaring that the
Department was not authorized to make deductions from his inmate account.

               The doctrine of exhaustion of administrative remedies
               requires that a person challenging an administrative
               decision must first exhaust all adequate and available
               administrative remedies before seeking relief from the
               courts. The purposes of this exhaustion requirement are
               to prevent premature judicial intervention in the
               administrative process and ensure that claims will be
               addressed by the body with expertise in the area. Thus,
               where the legislature has provided an administrative
               procedure to challenge and obtain relief from an agency’s
               action, failure to exhaust that remedy bars this Court


               corresponding right to institute a suit for damages arises. It is the
               duty of the party asserting a cause of action to use all reasonable
               diligence to properly inform him-or herself of the facts and
               circumstances upon which the right of recovery is based and to
               institute suit within the prescribed period. Generally, once the
               prescribed statutory period has expired, the complaining party is
               barred from bringing suit.
Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011) (citations omitted).
        This Court has expressly held that under circumstances in which the inmate is aware of
the ongoing deductions, his/her cause of action accrues when the Department makes the first
deduction. This Court in Zellie noted that it had previously “rejected the argument that a
continuing violation creates ongoing causes of action, stating: . . . ‘[a]dopting [such a] rationale
would effectively render the limitation period for any cause of action alleging loss of payment
meaningless when the payment is received on a regular basis.’” Slip op. at 3 n.5 (quoting
Casner v. Am. Fed’n of State, Cnty., & Mun. Emps., 658 A.2d 865, 871 (Pa. Cmwlth. 1995)).
Two weeks after the Zellie decision, the Curley I Court likewise relied upon Casner to conclude
that a cause of action commences in these types of cases when the Department makes the first
deduction. Four weeks after Curley I was decided, the Pierre-Louis Court relied upon Curley I
and Casner to reach the same conclusion.


                                                18
            from hearing claims for declaratory or injunctive relief
            with respect to that agency action.

Funk v. Dep’t of Envtl. Prot., 71 A.3d 1097, 1101 (Pa. Cmwlth. 2013) (citations
omitted). The Department has a procedure for inmates to challenge its decisions.

            Chapter 93 of Title 37 of the Pennsylvania Code contains
            regulations pertinent to state correctional institutions.
            Section 93.9 [of the Department’s regulations]
            establishes an inmate grievance system that provides a
            forum for prison inmates to complain to the Department
            about problems that arise ‘during the course of
            confinement.’ 37 Pa.[ ]Code § 93.9. That section states:
                (a) The Department will maintain an inmate
                grievance system which will permit any inmate to
                seek review of problems which the inmate
                experiences during the course of confinement.
                The system will provide for review and resolution
                of inmate grievances at the most decentralized
                level possible. It will also provide for review of
                the initial decision[-]making and for possible
                appeal to the Central Office of the Department.
                An inmate will not be disciplined for the good
                faith use of the grievance systems. . . .
           Id.
McCray v. Dep’t of Corr., 872 A.2d 1127, 1131 (Pa. 2005).
            According to the Commonwealth’s Inmate Grievance System
Procedures Manual (Grievance Manual) and the Department’s Inmate Handbook
(Handbook), the inmate grievance process begins with the filing of a grievance
with the Facility Grievance Coordinator.       Grievance Manual at 1-2; Inmate
Handbook at 8. “The [process] requires an inmate who has received an initial
determination on his grievance to appeal to the Superintendent and, thereafter, seek
final review with [the Department]. If the inmate fails to complete each of these



                                        19
steps, he fails to exhaust his administrative remedies.” Kittrell v. Watson, 88 A.3d
1091, 1095 (Pa. Cmwlth. 2014).
            Morgalo avers in his Petition that, on March 22, 2010, he filed
Grievance No. 311819 concerning the allegedly improper Act 84 deductions.
However, he declared that he “did not get the chance to complete th[at] process.”
Morgalo Pet. Ex. J. The Department’s records, which Morgalo attached to his
Petition, reflect that Grievance No. 311819 “was answered on 4/5/10” by the
Facility Manager. Morgalo Pet. Ex. K. However, the Facility Manager’s April 5,
2010 response was not attached to Morgalo’s Petition.
            Also according to Morgalo’s allegations set forth in his Petition, he
filed inmate Grievance No. 461892 with the Facility Grievance Coordinator on
May 28, 2013 regarding the deductions, stating: “I submitted previous paperwork
to no avail.” Morgalo Pet. Ex. H. On June 10, 2013, the Facility Grievance
Coordinator rejected the grievance because “the issue(s) presented . . . has been
reviewed and addressed.”     Morgalo Pet. Ex. I.     Morgalo appealed from that
decision to the Facility Manager, arguing that he was not afforded the opportunity
to complete the former grievance. Morgalo Pet. Ex. J. On July 11, 2013, the
Facility Manager rejected Morgalo’s appeal because it was addressed in 2010
relative to Grievance No. 311819.      Morgalo Pet. Ex. K.      Morgalo appealed
therefrom to the Chief Grievance Officer who, on August 30, 2013, responded:

            A review of the record was conducted by the Office of
            Chief Counsel. They found that this matter was dealt
            with appropriately in 2010 when you filed [G]rievance
            #311819. The [Department] policy DC-ADM 804 does
            not permit either duplicative grievances or untimely
            grievances. You provide no evidence to substantiate
            your objection to the collection of Act 84 funds from
            your Inmate Account. This office upholds the decisions
            of the Office of Chief Counsel, the Facility Manager and
                                        20
            the Grievance Officer in denying your grievance and
            requested relief.
Morgalo Pet. Ex. M.
            In his Petition, Morgalo claims that when he was removed to the
Michigan department of corrections “in 2010,” he understood that he was in
Michigan’s custody and “was not authorized to conform to the doctrine of
exhaustion of remedies, and therefore was unable to petition the [C]ourt in 2010.”
Morgalo Pet. at 8. Morgalo does not specify in either the Petition or his brief when
he was taken into Michigan’s custody. Notwithstanding, on or about May 28,
2013 (presumably upon his return from Michigan), Morgalo again filed a
grievance regarding the deductions.       Morgalo contends that his May 2013
grievance was a continuation of the March 2010 grievance because he was
prevented from exhausting the grievance process he started in March 2010. See
Morgalo Pet. Ex. H.
            If Morgalo’s March 2010 grievance was exhausted as of April 5,
2010, his September 27, 2013 filing exceeded the two-year statute of limitations,
making his claim untimely. If, however, Morgalo’s May 2013 grievance was a
continuation of the March 2010 grievance, and his administrative remedies were
exhausted August 30, 2013, his September 27, 2013 filing was timely. Based upon
the Petition, we cannot ascertain whether Morgalo’s May 2013 grievance was a
new grievance or an extension of his March 2010 grievance and, thus, we cannot
determine whether the Petition was timely filed.
            Because “it must appear with certainty that the law will not permit
recovery, and, where any doubt exists as to whether the preliminary objections
should be sustained, the doubt must be resolved in favor of overruling the
preliminary objections[,]” we are constrained to overrule the Department’s


                                        21
preliminary objection as to the timeliness of Morgalo’s Petition. Pa. State Lodge,
Fraternal Order of Police, 909 A.2d at 416.            Therefore, the Department’s
objection to the Petition’s timeliness is overruled.


                Department’s Second Preliminary Objection - Demurrer
                The Department also objects to Morgalo’s Petition on the ground that
Morgalo has failed to state a claim upon which relief may be granted. In the
Petition, Morgalo pleads that the Department’s Inmate Accounting Office and
Clerk of Courts deducted monies from his inmate account without proper judicial
authorization.      The Department specifically argues that since it is statutorily
authorized to collect monies from inmate accounts without the trial court’s orders,
the wording therein is irrelevant; however, to the extent the trial court’s orders
control, they are unambiguous.
                Morgalo contends that the Department’s Inmate Accounting Office
and Clerk of Courts erred and misinterpreted Sections 8127(a) of the Judicial Code
(relating to when wages may be attached)15 and Section 9728 of the Sentencing
Code (relating to restitution collection) and, as a result, “[t]o date, a total of
$690.65 has been deducted from [his] account without any authorization from the
law and in direct contravention of Petitioner’s Sentencing Judge[’s] Orders and
[Department] Policy.” Morgalo Pet. ¶ 2. Specifically, citing Commonwealth v.
Fleming, 804 A.2d 669 (Pa. Super. 2002); Boofer v. Lotz, 797 A.2d 1047 (Pa.
Cmwlth. 2002), rev’d, 842 A.2d 333 (Pa. 2004); and Holloway v. Lehman, 671
A.2d 1179 (Pa. Cmwlth. 1996), Morgalo claims that the Department cannot take
his money without notice and the opportunity to be heard.

      15
           42 Pa.C.S. § 8127(a).


                                          22
                In George v. Beard, 824 A.2d 393 (Pa. Cmwlth.), aff’d, 831 A.2d
597 (Pa. 2003), and Russell v. Donnelly, 827 A.2d 535 (Pa. Cmwlth. 2003), this
Court sustained demurrers based on nearly identical arguments. In George, this
Court stated:

                [Section 9728(b)(5) of the Sentencing Code] authorizes
                [the Department] to make monetary deductions from an
                inmate’s account to pay court[-]ordered fines and costs
                and does not impose prior court authorization as a
                threshold condition. See [Fleming]; Sweeney v. Lotz,
                787 A.2d 449 (Pa. Cmwlth. 2001). As noted, [the
                inmate] concedes that fines and costs were imposed as
                part of his criminal sentence. Petition, ¶ 5. It is the
                judgment of sentence which enables [the Department] to
                deduct the funds. Thus, [the inmate] may not challenge
                that judgment by seeking to enjoin [the Department]
                from carrying out its statutorily[-]mandated duty to
                deduct the funds. Harding v. Superintendent Stickman of
                SCI Greene, 823 A.2d 1110 . . . (Pa. Cmwlth. . . . 2003)
                (inmate may not challenge substance of sentencing
                court’s order by seeking an injunction against [the
                Department]). Compare Commonwealth v. Baker, 782
                A.2d 584 (Pa. Super. 2001) (inmate appealed trial court’s
                order directing deductions from inmate’s account for
                costs and restitution).
                ....
                Nor is [the inmate] entitled to reimbursement from [the
                Department] for funds deducted from his account.
                Pursuant to Section 9728(b)(5) of the Sentencing Code,
                the funds deducted from his inmate account were sent to
                the appropriate county agent for payment of his court
                ordered obligations. As such, he has no right to
                reimbursement from [the Department]. Harding.

George, 824 A.2d at 396-97. Thereafter, in Russell, this Court held:

                The [Harding] Court found that the holding in Boofer
                does not negate [the Department’s] authority under Act
                84 to make the deductions. In Boofer[,] the Court held
                                           23
               that a hearing was required before deductions could be
               made from an inmate’s account to determine his financial
               ability to pay. The Court relied upon Section 8127(a) of
               the Judicial Code, 42 Pa.C.S. § 8127(a), which provides
               that an individual’s wages are exempt from attachment
               while in the hands of an employer but that wages may be
               attached upon an action for restitution and costs.[FN]3 The
               Court cited Holloway . . ., which held that inmates could
               challenge the deductions from their accounts where [the
               Department], in the complete absence of any due process,
               assessed monetary damages against inmates for
               destruction of prison property and began deducting funds
               from their accounts after the appeal period had expired
               from misconduct decisions finding them liable for
               damages.
                   [FN]3. In Mays v. Fulcomer, . . . 552 A.2d 750
                   ([Pa. Cmwlth.] 1989), the Court held that inmate
                   remuneration for prison labor does not constitute
                   wages for purposes of Section 8127 [of the
                   Judicial Code16].
               Unlike the inmates in the Holloway case, [the inmate]
               was afforded due process when the restitution amount
               was established by the court of common pleas at his
               sentencing hearing.[17] Moreover, Section 9728(b)(5) [of
               the Sentencing Code] was amended after Holloway. In

       16
           See also Heffran v. Dep’t of Labor & Indus., 863 A.2d 1260, 1263 (Pa. Cmwlth. 2004)
aff’d, 886 A.2d 222 (Pa. 2005) (holding that an inmate was not an employee with standing to file
a complaint for violations of the Worker and Community Right-to-Know Act, Act of October 5,
1984, P.L. 734, 35 P.S. §§ 7301-7320).
        17
           We acknowledge that, six years after Morgalo’s deductions commenced, the U.S.
Court of Appeals for the Third Circuit determined in Montañez v. Pennsylvania Department of
Corrections, 773 F.3d 472, 481 (3d Cir. 2014) that inmates must receive pre-deduction
notification. However, the Pennsylvania Supreme Court has held: “While we certainly find
[Third Circuit Appeals Court] decisions instructive, their holdings . . . are not binding on us or
any other court of this Commonwealth.” Goldman v. Se. Pa. Transp. Auth., 57 A.3d 1154,
1170 n.12 (Pa. 2012). Moreover, the Pennsylvania Supreme Court has yet to adopt Montañez.
Rather, in Buck v. Beard, 879 A.2d 157 (Pa. 2005), the Pennsylvania Supreme Court held that a
“sentencing hearing provided [the inmate] with the required pre-deprivation due process[.]” Id.
at 161. Accordingly, Buck is controlling.


                                               24
             Sweeney the Court noted the holding in Sweatt [v.
             Department of Corrections, 769 A.2d 574 (Pa. Cmwlth.
             2001)] that Section 9728(b)(5) [of the Sentencing Code]
             merely provided a procedural mechanism for collecting
             costs, fines and restitution from incarcerated judgment
             debtors and noted further the proposition that an
             individual is obligated to pay court-ordered restitution
             irrespective of his or her incarceration.

Russell, 827 A.2d at 537-38. Based upon the foregoing, we similarly hold that
Morgalo’s reliance upon Section 8127(a) of the Judicial Code, Fleming, Boofer
and Holloway to support his position is misplaced.
             Morgalo further argues that “the Department neglected [the trial
court’s o]rders and ignored it[s] own policy when it never contacted [the
sentencing judge] to obtain a ‘Certified Order’ authorizing [it] to deduct money
from [Morgalo’s] account.” Morgalo Pet. Memorandum at 7. Indeed, Section
3.A.5 of the Department’s Debt Collection Manual prohibits the Department from
commencing Act 84 inmate account deductions if a trial court’s sentencing order
specifies that payments will be required “upon or within a certain amount of time
after parole or release” and, if the Department is unsure whether a court order
intends for payments to begin at or after parole, the Department “shall” contact the
trial court and obtain clarification. Morgalo Pet. Ex. F.
             According to the documents incorporated into Morgalo’s Petition, the
June 23, 2003 sentencing order stated: “[Morgalo] is sentenced to pay the costs
of prosecution, and a fine of $500.00 and restitution of $_____ to ____ within
the first    17    months of supervision/release from custody in monthly
installments as directed.” Morgalo Pet. Ex. A (emphasis added). The April 26,
2004 sentencing order read, in pertinent part: “[Morgalo] is sentenced to pay the
costs of prosecution, and a fine of $ -0- and restitution of $ 0 to 0 within the


                                         25
first        parole months of supervision/release from custody in monthly
installments as directed.” Morgalo Pet. Ex. B (emphasis added). The September
13, 2004 sentencing order reflected, in relevant part: “[Morgalo] is sentenced to
pay the costs of prosecution, and a fine of $ -0- and restitution of $4,744.61 to
SEE ATTACHED         within the first ___ months of supervision/release from custody
in monthly installments as directed. RESTITUTION                  JOINT/SEVERAL W/CO DEFT.”

Morgalo Pet. Ex. C (emphasis added). And the two July 10, 2008 sentencing
orders identically stated:           “[Morgalo] is sentenced to pay the costs of
prosecution, and a fine of $ - and restitution of $ -               to - within the first ____
months of supervision/release from custody in monthly installments as
directed.” Morgalo Pet. Exs. D and E (emphasis added).
                 The trial court’s sentencing orders unartfully proscribe what Morgalo
owes in restitution, costs and fines.             In each case, the forms reflect that the
payments are due “within the first ____ months of supervision/release from
custody.” Morgalo Pet. Exs. A-E. “Supervision” in the context of Pennsylvania’s
criminal justice system means supervision while on probation or parole.                   See
Section 5121(e) of the Crimes Code, 18 Pa.C.S. § 5121(e);18 see also Timothy P.
Wile, 12 West’s PA Prac., Pennsylvania Law of Probation and Parole, Chapter 10
        18
             Section 5121(e) of the Crimes Code provides:

                 As used in this section the phrase ‘official detention’ means arrest,
                 detention in any facility for custody of persons under charge or
                 conviction of crime or alleged or found to be delinquent, detention
                 for extradition or deportation, or any other detention for law
                 enforcement purposes; but the phrase does not include
                 supervision of probation or parole, or constraint incidental to
                 release on bail.
18 Pa.C.S. § 5121(e) (emphasis added).



                                                 26
(2010 ed.). However, the plain meaning of the term “supervision” is “[t]he act of
managing, directing, or overseeing persons . . . .” Black’s Law Dictionary at 1576.
Thus, “supervision” could refer to one’s time while on parole or probation, or
within the prison walls. Similarly, since “custody” is defined as “[t]he care and
control of a . . . person for inspection, preservation, or security,” the phrase
“release from custody” could mean either release to community corrections, or
release on parole and/or after the maximum sentence release date has been reached.
Id. at 441.
              Moreover, where the blank between “first” and “months” is not
completed, the payments could begin immediately upon supervision/release from
custody. Even assuming that it was clear to Morgalo and the Department that
“supervision” and “release from custody” refer to release from incarceration, and
only those orders in which the blank between “first” and “months” is filled in
require payment upon or after release from official detention, the June 23, 2003
sentencing order requires payment “within the first               17    months of
supervision/release from custody[,]” Morgalo Pet. Ex. A (emphasis added), and
the April 26, 2004 sentencing order requires payment “within the first parole
months of supervision/release from custody.” Morgalo Pet. Ex. B (emphasis
added). Therefore, it is possible that those monies are to be paid while he is
incarcerated and others are to await his supervision/release.
              Based on the above, we hold that the trial court’s sentencing orders in
this case are grossly ambiguous. Under the circumstances, not only did Section
3.A.5 of the Department’s Debt Collection Manual require the Department to seek
clarification of the sentencing orders in this precise circumstance, but this Court
has held that where a sentencing order is ambiguous, “there is support for


                                         27
transferring [the matter] to the sentencing court for resolution.” Harrison v. Pa.
Dep’t of Corr., 860 A.2d 196, 199 (Pa. Cmwlth. 2004). The Supreme Court has
likewise held that the sentencing judge is best qualified to resolve interpretations of
his or her orders. Commonwealth v. Isabell, 467 A.2d 1287 (Pa. 1983). The
Department did not do that in this case.
              Although it is clear that the Department is statutorily authorized to
collect monies from inmate accounts without a trial court order specifically
triggering the deductions, here it is unclear whether the trial court’s order requires
all or certain of Morgalo’s payments to begin only at or after parole. Further if, as
Morgalo claims, his payment obligations were triggered only upon his
parole/release, and he was not paroled/released between his June 23, 2003, April
26, 2004, September 13, 2004 and July 10, 2008 sentences, his claims that those
monies were prematurely deducted may be valid.19 Because it does not appear

       19
           The Petition reflects that Morgalo was sentenced on June 23, 2003 for a matter
docketed in 2002. According to the April 26, 2004 order issued under another 2002 docket
number, he was sentenced to serve 6 to 23 months to be served simultaneously with the June 23,
2003 order. Because it is likely that both sentences related to crimes Morgalo committed before
he was sentenced in June 2003, he could have been continuously incarcerated from June 23,
2003, or he could have been paroled between the June 23, 2003 and April 26, 2004 sentences.
The new sentence could also be related to a crime committed during his incarceration.
        Whether Morgalo was paroled from or fully served his June 23, 2003 and April 26, 2004
concurrent 6 to 23-month sentences, he could have been released before his next charge docketed
in 2004, for which he was sentenced on September 13, 2004. Or, he could have committed a
crime during his incarceration and this sentence merely extended his prison stay.
        The two July 10, 2008 orders related to third-degree murder (2007 docket number) and
theft (2006 docket number) reflect that Morgalo was credited for time he was incarcerated
between December 1, 2006 and July 10, 2008. Morgalo Petition Exs. D, E. Reference to a
firearm on the theft sentencing sheet makes it likely that Morgalo was on parole from or had
fully served his 6 to 23-month September 13, 2004 sentence (by mid-August of 2006) before he
began serving time on December 1, 2006. The impact of the third-degree murder sentence
sheet’s statement that Morgalo “shall be kept separate from Marcus R. Allen (HJ-7463 (SCI-
Somerset)[)] and David Cooper [(HL-9533 SCI-Huntington)],” is unclear. It could have been


                                              28
with certainty that the law precludes Morgalo’s claims, doubt exists as to whether
the Department’s demurrer should be sustained. Accordingly, we are constrained
to overrule it.     Pa. State Lodge, Fraternal Order of Police.               Therefore, the
Department’s demurrer is overruled.
              Based on the foregoing, the Department’s preliminary objections are
overruled.

                                            ___________________________
                                            ANNE E. COVEY, Judge




necessary because the men participated in the crime, because they posed a threat to Morgalo’s
safety, or because Morgalo committed the crime against a prisoner before he completed his
September 13, 2004 sentence. Morgalo Petition Ex. D.
        Nevertheless, since it is clear that Morgalo has been continuously incarcerated since at
least December 1, 2006, whether deductions related to any of his sentences were permitted to be
made thereafter and relative to which sentences remain at issue.



                                              29
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Morgalo,                          :
                          Petitioner      :
                                          :
             v.                           :
                                          :
Sandra Gorniak,                           :
(SCI Albion Accountant)                   :
                                          :
             v.                           :
                                          :
Montgomery County Clerk of                :
Courts,                                   :   No. 489 M.D. 2013
                      Respondents         :


                                       ORDER

             AND NOW, this 8th day of March, 2016, the Pennsylvania
Department of Corrections’ (Department) preliminary objections to Michael
Morgalo’s (Morgalo) Request to Stop Deduction(s) and Return of Monies from
Inmate’s Account (Petition) are overruled.         Accordingly, the Department is
directed to file an answer to the Petition within 30 days of this Court’s order.


                                              ___________________________
                                              ANNE E. COVEY, Judge
