       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Aquil Johnson,                         :
                           Petitioner  :
                                       :
                     v.                :    No. 497 M.D. 2018
                                       :    Submitted: February 15, 2019
John Wetzel, Secretary PA. D.O.C.,     :
Mark Garman, Super., S.C.I. Rockview :
et al., Officers, Agents, Servants,    :
Employees and Attorneys,               :
                           Respondents :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                        FILED: June 3, 2019


      Before this Court in our original jurisdiction are the preliminary objections
(POs) of John Wetzel, Secretary PA. D.O.C., Mark Garman, Super., S.C.I.
Rockview, et al., Officers, Agents, Servants, Employees and Attorneys (together,
Respondents) to the Amended Petition for Review (Amended Petition) filed by
Aquil Johnson, an inmate currently incarcerated at the State Correctional
Institution at Rockview. Also before the Court are Johnson’s POs to Respondents’
POs, challenging Respondents’ assertion of the affirmative defenses of expiration
of the statute of limitations and immunity as POs. Johnson’s claims arise out of
the Department of Corrections’ (Department) deduction of monies from his inmate
account under what is commonly known as Act 841 to satisfy financial obligations
associated with two criminal convictions.

       I.      Background
               a.     Johnson’s Averments
       Johnson filed his initial Petition for Review (Initial Petition) on or about July
19, 2018, and, after Respondents filed POs, filed the Amended Petition on or about
August 20, 2018, with the Court’s permission. Johnson avers the following. 2 The
Court of Common Pleas of Philadelphia County (Sentencing Court) sentenced
Johnson on two unrelated criminal matters on March 15, 2013. (Amended Petition
¶ 13.) “At the sentencing hearing[,] the [S]entencing [C]ourt never informed
[Johnson] of the total amount of cost[s] owed or that the [Department] was going
to deduct funds from [his] Inmate Account,” he was not afforded an ability-to-pay


       1
         Act 84 was passed by the General Assembly on June 18, 1998, and amended Section
9728 of the Sentencing Code, 42 Pa. C.S. § 9728, by adding subsection (b)(5). Section
9728(b)(5) permits the Department to collect fines, costs, and restitution from inmate prison
accounts and forward the fund to the sentencing county. That subsection provides:

       The county correctional facility to which the offender has been sentenced or the
       Department of Corrections 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 section 9721(c.1). Any amount
       deducted shall be transmitted by the Department of Corrections or the county
       correctional facility to the probation department of the county or other agent
       designated by the county commissioners of the county with the approval of the
       president judge of the county in which the offender was convicted. The
       Department of Corrections shall develop guidelines relating to its responsibilities
       under this paragraph.

42 Pa. C.S. § 9728(b)(5). This section was amended in 2010 to add the reference to Section
9721(c.1). Act of October 27, 2010, P.L. 949, effective December 27, 2010.
        2
          Johnson incorporates the allegations and claims of the Initial Petition into the Amended
Petition.
                                                2
hearing at which he could contest or object to the costs, and he was not provided a
copy of the Department’s policy regarding collecting costs and fines. (Id. ¶ 14.)
       The Department made its first deduction from Johnson’s inmate account in
June 2013 without providing him any notice of the deduction, the total amount
owed, how the deduction would occur, and without giving him an ability-to-pay
hearing or an opportunity to object or contest the deduction. (Id. ¶¶ 15, 17.)
Johnson became aware of the deduction in July 2013, inquired about the nature of
the deduction with an inmate counselor (Counselor), and was told that the
deductions were lawful and that, in order for the deductions to end, Johnson had to
pay the full amount. (Id. ¶ 16.) Johnson filed a grievance on June 17, 2018, after
learning of the Supreme Court’s decision in Bundy v. Wetzel, 184 A.3d 551 (Pa.
2018) (Bundy I).3 While the grievance was granted as to the lack of notice and an
opportunity to object, his request for a refund or for damages was denied. (Id. ¶
18.) Johnson’s appeal of this grievance was denied, as was a second grievance.
(Id.) As of the date of the Amended Petition, the Department had deducted a total
of $858.80 for the two criminal cases. (Id. ¶ 19.)
       Based on these facts, Johnson asserted4 a claim for replevin seeking to
recover the funds he avers the Department wrongfully took from his inmate
account because it did not provide him with notice prior to the first deduction in


       3
           In Bundy I, the Supreme Court held that due process requires that, prior to the first
deduction, the Department advise “the inmate of the total amount of [the inmate’s] financial
liability as reflected in [the] sentencing order, as well as the Department’s policy concerning the
rate at which funds will be deducted . . . and which funds are subject to deduction,” and the
Department must also provide “the inmate a reasonable opportunity to object to the application
of the Department’s policy to [the inmate’s] account.” 184 A.3d at 558-59. Therefore, the
Supreme Court reversed this Court’s order sustaining the Department’s demurrer and dismissing
the inmate’s complaint, and remanded for further proceedings.
         4
           Neither the Initial Petition nor the Amended Petition set forth specific counts.
                                                3
violation of his due process rights. (Initial Petition ¶¶ 17-19; Initial Petition at 6-
9.) He claims the funds were taken wrongfully because he was denied an ability-
to-pay hearing, to which he was entitled due to various changes in his
circumstances that encumber his access to the courts.                First, the Department
changed its legal mail policy “sometime in 2016” to prohibit an inmate’s account
from going into the negative, which encumbers his access to the courts as reflected
by the Department’s refusal “on August 22, 2016, . . . to mail [Johnson’s] legal
mail to the courts because he did not have enough money to cover the cost of
postage.” (Initial Petition ¶¶ 24-31; Initial Petition, Exs. AP2-AP6.) Second, due
to his “expanded caseload,” his litigation costs have increased. (Initial Petition ¶¶
33-34.) Combining the increased litigation costs with his need to purchase basic
necessities from the commissary, the Act 84 deductions have “place[d] an un-
sustainable [sic] burden on [Johnson’s] ability to access the courts which may
result in [him] loosing [sic] important rights.” (Id. ¶ 35.) Third, he has lost some
of his support system and only rarely receives monetary gifts, which along with his
lack of assets or cash reserves and the Act 84 deductions, results in a change in his
financial status that encumbers his ability to access the courts. (Id. ¶¶ 37-38.)
       Johnson also asserted the deductions were wrongly taken based on the
actions of the Sentencing Court and/or actions of the Department’s employees.
First, the Sentencing Court did not conduct an ability-to-pay hearing or give him
adequate notice and a chance to contest or object to the costs and fines5 as required
by Section 9726 of the Sentencing Code, 42 Pa. C.S. § 9726; Ingram v. Newman,
830 A.2d 1099 (Pa. Cmwlth. 2003); and Holloway v. Lehman, 671 A.2d 1179 (Pa.

       5
          Although Johnson references “fines” in his averments, he was not sentenced to pay any
fines; thus, only court costs and a payment to the Crime Victim’s Compensation Fund are being
deducted. (Initial Petition, Exs. RSO3-RSO4.)
                                              4
Cmwlth. 1996).        (Initial Petition ¶¶ 39-45.)         As the Sentencing Court never
inquired as to Johnson’s ability to pay, advised him of the total amounts, or gave
him the ability to object, he was denied due process. (Id.) Second, the Sentencing
Court did not sign the order authorizing the Act 84 deductions, and the order did
not specify whether he was required to pay the costs while he was in prison or on
parole. (Id. ¶¶ 46-54.) Third, when Johnson inquired as to the nature of the
deductions in July 2013, Counselor stated they were lawful and he relied upon that
misrepresentation.6 (Id. ¶¶ 60-61.)
       In the Amended Petition, Johnson asserted a count for the negligent handling
of his personal property resulting in his injury. He avers that “[R]espondents owed
[him] a duty to exercise reasonable care and diligence when handling [his] inmate
account which consisted of his personal private property.” (Amended Petition ¶
21.) This obligated Respondents to “maintain, regulate and operate [Johnson’s]
inmate account with ordinary care and diligence in a manner consistent with State
and Federal Law and [Department] Policy.” (Id. ¶ 22.) Respondents breached
those duties by not “exercis[ing] ordinary care and reasonable diligence in
maintaining, regulating and operating [Johnson’s] inmate account including:” (1)
not giving him notice and opportunity to object to the Act 84 deductions prior to
the first deduction; (2) not following Federal and State Law and Department Policy


       6
          The Initial Petition further averred that an inmate challenging Act 84 deductions does
not have to exhaust the administrative grievance procedure because such procedures do “not
meet the minimum standards established by the Law,” Holloway, 671 A.2d at 1182; see also
Shore v. Pennsylvania Department of Corrections, 168 A.3d 374 (Pa. Cmwlth. 2017); Montanez
v. Secretary Pennsylvania Department of Corrections, 773 F.3d 472 (3d Cir. 2014). (Initial
Petition ¶¶ 55-59.) If the exhaustion requirement has to be met, Johnson asked that this litigation
be stayed pending the outcome of that process. (Id. ¶¶ 63-66.) However, Respondents did not
file any PO asserting Johnson failed to exhaust his administrative remedies, and, therefore, we
will not address these allegations further.
                                                5
by failing to give him notice before the first deduction; and (3) not following the
Department’s Policy by failing to give him notice that he could appeal the
deductions. (Id. ¶ 23.) Despite knowing they were to provide notice prior to the
first deduction, Respondents negligently deducted and continue to deduct funds
from Johnson’s inmate account. (Id. ¶ 24.) As a direct result of Respondents’
negligence, Johnson has suffered injury and damages in the nature of a violation of
his due process rights under the Fourteenth Amendment to the United States
Constitution, and monetary loss of $858.80. (Id. ¶¶ 25-26.)
      As relief, Johnson seeks a return of his funds, special damages in the amount
of statutory interest on that amount, nominal damages in the amount of $200 or
$350, and “[a]ttorney [f]ees if or when they become applicable.” (Initial Petition ¶
72; Amended Petition ¶ 27.)         Absent from the Initial Petition and Amended
Petition is a specific request for declaratory or injunctive relief.

             b.     Respondents’ POs
      Respondents filed two POs in the nature of demurrers to Johnson’s claims:
one challenging the legal sufficiency of Johnson’s Act 84 claims, and the other
challenging the legal sufficiency of Johnson’s negligence/replevin claim. In the
first demurrer, Respondents allege the following. First, “[i]t is clear on the face of
the [Petitions] that [Johnson’s] Act 84 claim is barred by the applicable statute of
limitations.” (Respondents’ POs ¶ 19.) Citing Davis v. Commonwealth, 660 A.2d
157, 159 n.2 (Pa. Cmwlth. 1995), Respondents contend that although expiration of
the statute of limitations is an affirmative defense, it “may be raised in preliminary
objections where the defense appears on the face of the pleading to which
objections were raised.” (Respondents’ POs at 2 n.1.) Respondents assert the
statute of limitations for an Act 84 claim is two years pursuant to Morgalo v.

                                            6
Gorniak, 134 A.3d 1138 (Pa. Cmwlth. 2016), Johnson’s claim accrued at the time
of the Department’s first deduction in June 2013, and, under precedent, future
deductions do not extend the limitations period “under a continuing violation
theory.” (Id. ¶¶ 20-23.) Because this action was not filed within two years of the
June 2013 deduction, Respondents aver the action is time barred. (Id. ¶ 23.)
       Respondents also assert that: the Department has the authority to collect Act
84 costs where there is a court order imposing such costs, Spotz v. Commonwealth,
972 A.2d 125 (Pa. Cmwlth. 2009); there is no requirement that there be a prior
court order for the Department to impose those costs, George v. Beard, 824 A.2d
393, 396-97 (Pa. Cmwlth. 2003); and the Department can rely on the calculation of
costs by the clerk of courts, Richardson v. Department of Corrections, 991 A.2d
394 (Pa. Cmwlth. 2010); Richardson v. Peters (Pa. Cmwlth., No. 618 M.D. 2009,
filed July 25, 2011) (per curiam order). (Respondents’ POs ¶¶ 24-30.) In addition,
Respondents allege the sentencing orders attached to the Initial Petition reflect the
amounts owed, and further that pursuant to Section 9721(c.1) of the Sentencing
Code, 42 Pa. C.S. § 9721(c.1), no court order is required for a defendant to be
liable for costs.
       As for Johnson’s due process claims, Respondents’ demurrer cites Supreme
Court precedent rejecting the contention that an ability-to-pay hearing was required
prior to the Department beginning Act 84 deductions as the Sentencing Court
affords all the process that is due regarding a defendant’s ability to pay, Buck v.
Beard, 879 A.2d 157, 160-61 (Pa. 2005). (Respondents’ POs ¶¶ 31-32.) Further,
Respondents contend they are entitled to qualified immunity because it was not
clearly established in June 2013 that the Department had to provide Johnson with a
pre-deprivation process before taking Act 84 deductions, as Montanez v. Secretary


                                         7
Pennsylvania Department of Corrections, 773 F.3d 472 (3d Cir. 2014), was not
decided until 2014 and Bundy I, adopting Montanez’s due process requirements,
was not decided until 2018. (Respondents’ POs ¶¶ 33-34.) Thus, Respondents
assert they are immune from Johnson’s claims for monetary damages. (Id. ¶ 35.)
      On the negligence claim, Respondents assert the negligence claim replaced
the replevin claim and has a two-year statute of limitations that bars Johnson’s
negligence action because the first deduction occurred in June 2013, Johnson
admits he became aware of the deduction in July 2013, and he did not file the
action until more than two years after these events. (Id. ¶¶ 36-39.) Respondents
further allege that Johnson’s averments as to negligence are really premised on
alleged intentional conduct by Respondents, which renders the claim barred by
sovereign immunity. (Id. ¶¶ 41-44.) Respondents assert that they did not know in
July 2013 that inmates were to be given notice and an opportunity to object prior to
when Act 84 deductions could occur. (Id. ¶ 45.) Therefore, the negligence claim
is either time-barred or Respondents are entitled to sovereign immunity. (Id. ¶ 46.)

             c.    Johnson’s POs and Answer
      Johnson filed his POs asserting that Respondents improperly raised the
affirmative defenses of the statute of limitations and immunity as POs. (Johnson’s
POs ¶¶ 12, 33.) While Johnson acknowledges that such defenses can be raised
when the defense is clear on the face of the complaint, if there is an objection to
the raising of the defense as a preliminary objection, the Court should not sustain
the preliminary objections. (Id. ¶¶ 13-15, 34-35 (citing Davis, 660 A.2d at 159 n.2;
Wurth v. City of Philadelphia, 584 A.2d 403, 406-07 (Pa. Cmwlth. 1990)).) He
further asserts the statute of limitations PO should be overruled under the doctrine
of fraudulent concealment, which tolls the running of the statute of limitations, as a

                                          8
result of Counselor telling Johnson in July 2013 that the Act 84 deductions were
lawful. (Id. ¶¶ 16-22, 27.) He additionally objects to Respondents’ reliance on
Buck given the Supreme Court’s recent decision in Bundy I, in which Johnson
asserts that the Court discussed the need to provide an ability-to-pay hearing if a
change in circumstances hinders an inmate’s access to the courts. (Id. ¶¶ 30-31.)
He also challenges the contention that the Sentencing Court gave him due process
because that court did not provide him with an ability-to-pay hearing, or inquire
into his financial ability to pay the costs.    (Id. ¶ 32.)    As for Respondents’
assertions of immunity, in addition to observing that immunity is an affirmative
defense, Johnson challenges the substance of the demurrer, mainly that
Respondents would be entitled to sovereign immunity for the negligence claim or
qualified immunity for the Act 84 claims. He asserts there was case law and a
Department Policy that required such process in 2013. (Id. ¶¶ 36-37, 43-52, 55-
57.) Johnson’s Answer to the POs essentially reiterates the rationale set forth in
his POs.

      II.   Discussion
      In ruling on preliminary objections in the nature of a demurrer, our review is
limited to the pleadings. Morgalo, 134 A.3d at 1141. In reviewing the pleadings,
we are

      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.
                                         9
Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Nat. Res.,
909 A.2d 413, 415-16 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007).
       Several of Respondents’ demurrers are based on affirmative defenses that
generally should be raised in a responsive pleading as new matter, as Johnson
points out. See Pennsylvania Rules of Civil Procedure 1028 and 1030, Pa.R.C.P.
Nos. 1028, 1030. These rules generally apply in matters filed in this Court’s
original jurisdiction.        See Pennsylvania Rule of Appellate Procedure 106,
Pa.R.A.P. 106.7 If an affirmative defense is asserted as a preliminary objection, the
proper way to object is to file a preliminary objection to the preliminary objection.
McCreary v. City of Philadelphia, 505 A.2d 385, 386 (Pa. Cmwlth. 1986). Where
such an objection is raised, the improper preliminary objection may be stricken.
Id. However, our Court has recognized that where it is clear on the face of the
pleading that an affirmative defense would apply, the defense “may be raised in
preliminary objections when to delay a ruling thereon would serve no purpose,”
even where the opposing party has objected. Feldman v. Hoffman, 107 A.3d 821,
830-32, 835 n.14 (Pa. Cmwlth. 2014) (citations omitted).
       With these principles in mind, we consider the particular POs before us.

       a.      Negligence Claim8
       Respondents assert two bases for dismissing Johnson’s negligence claim,
which we agree had the effect of replacing his replevin claim. Respondents argue
that Johnson fails to state a claim because: the alleged actions by Respondents


       7
          This rule states “[u]nless otherwise prescribed by these rules the practice and procedure
in matters brought before an appellate court within its original jurisdiction shall be in accordance
with the appropriate general rules applicable to practice and procedure in the courts of common
pleas, so far as they may be applied.” Pa.R.A.P. 106.
        8
          For ease of discussion, we have reordered Johnson’s claims.
                                                10
were intentional, not negligent in nature, and a claim based on intentional conduct
is barred by sovereign immunity; and, Respondents’ actions began more than two
years before the filing of the Initial Petition, rendering Johnson’s claim time-
barred. Johnson filed POs challenging Respondents’ assertion of these affirmative
defenses as demurrers. We first consider whether Johnson has failed to state a
claim for the negligent handling of his inmate account.
       To state a negligence claim, “the plaintiff must demonstrate that the
defendant owed a duty of care to the plaintiff, the defendant breached that duty, the
breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or
damage.” Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998). “Negligence is the
absence of ordinary care that a reasonably prudent person would exercise in the
same or similar circumstances.”             Id.    “[T]he plaintiff has the burden of
establishing, by a preponderance of the evidence, that the defendant engaged in
conduct that deviated from the general standard of care expected under the
circumstances, and that this deviation proximately caused actual harm.” Id. In
actions against the government and government employees, if the acts alleged are
intentional, rather than negligent in nature, the claims based on those intentional
actions are barred by sovereign immunity under Section 8521 of what is commonly
known as the Sovereign Immunity Act, 42 Pa. C.S. § 8521. Crockett v. Edinboro
Univ., 811 A.2d 1094, 1095-96 (Pa. Cmwlth. 2002).9




       9
          Under the Sovereign Immunity Act, “[a] Commonwealth party is not liable unless[:]
1) the alleged act of the Commonwealth party is a negligent act for which damages would be
recoverable under the common law or by statute”; and “2) the act of the Commonwealth party
falls within one of the exceptions listed in [Section 8522(b) of the Sovereign Immunity Act,] 42
Pa. C.S. § 8522(b).” Crockett, 811 A.2d at 1095-96 (citing 42 Pa. C.S. § 8522(a), (b)). Those
exceptions are required to be narrowly interpreted and strictly construed. Id.
                                              11
      A review of Johnson’s averments reveals that they recite the general
elements of a negligence claim, but do not articulate how Respondents negligently
handled Johnson’s property. Rather, the facts pled refer to intentional conduct by
Respondents. (Amended Petition ¶¶ 21-25.) Johnson alleges his negligence claim
arises from the facts that Respondents took the deductions from his account, and
they failed to give him notice as required by federal and state law and the
Department’s policy before doing so. (Amended Petition ¶¶ 15-17, 23.) Thus,
Johnson’s claims are based on Respondents’ taking or seizing his property, an
intentional act, without providing him notice. Importantly, an inmate “may not
recover in negligence for the alleged taking of money from his inmate
account,” as such actions constitute intentional conduct. Dep’t of Corr. v. Tate,
133 A.3d 350, 359-60 (Pa. Cmwlth. 2016) (emphasis added). In addition, Johnson
asserts that, when he inquired about the deductions, Counselor stated the
deductions were valid and would continue until the costs were fully paid.
(Amended Petition ¶ 17.)      This, too, is an allegation based on Counselor’s
intentional act.   Because it is clear from the face of the Initial Petition and
Amended Petition that sovereign immunity would apply as “the acts alleged are
not negligent acts,” Crockett, 811 A.2d at 1096, we overrule Johnson’s PO
challenging Respondents’ assertion of that defense to this claim.           And, it
“appear[ing] with certainty that the law will not permit recovery” on Johnson’s
negligence claim, Respondents’ PO is sustained and that claim is dismissed with
prejudice. Spotz, 972 A.2d at 129. Respondents’ PO to the negligence claim based
on the expiration of the statute of limitations, and Johnson’s corresponding PO, are
dismissed as moot.



                                        12
      b.      Act 84 Claims
      We now consider Respondents’ demurrer to Johnson’s Act 84 claims.
Respondents assert that Johnson has failed to state a claim to challenge the Act 84
deductions for a variety of reasons. We address each reason in turn.

      1.      The lack of signed order imposing court costs.
      Respondents first assert that, contrary to Johnson’s claims, no signed
sentencing order imposing the costs being deducted is required because the
imposition of costs is mandatory under Section 9721(c.1) of the Sentencing Code,
42 Pa. C.S. § 9721(c.1).      Citing cases interpreting Section 9728(b)(5) of the
Sentencing Code, 42 Pa. C.S. § 9728(b)(5), Johnson argues an order imposing
costs signed by the Sentencing Court is required before Respondents are authorized
to deduct any monies from his inmate account pursuant to Act 84.
      Section 9728(b)(5) of the Sentencing Code authorizes the Department to
deduct funds from an inmate’s personal account to pay for court-ordered financial
obligations arising from the inmate’s criminal conviction.          42 Pa. C.S. §
9728(b)(5). However, that section also authorizes the Department to deduct funds
for costs imposed under Section 9721(c.1) of the Sentencing Code. 42 Pa. C.S. §
9728(b)(5).     Section 9721(c.1) of the Sentencing Code, provides that,
“[n]otwithstanding the provisions of Section 9728 . . . or any other provision of
law to the contrary,” courts of common pleas are required to order defendants to
pay the costs of their prosecution and that, “[i]n the event the court fails to issue
an order for costs . . . , costs shall be imposed upon the defendant under this
section.” 42 Pa. C.S. § 9721(c.1) (emphasis added). “No court order shall be
necessary for the defendant to incur liability under” Section 9721(c.1).          Id.

                                         13
(emphasis added).10 The relevant provisions of Sections 9728(b)(5) and 9721(c.1)
of the Sentencing Code were in effect at the time Johnson was sentenced,11 placing
him “on notice of the Department’s statutory authority to deduct funds from his
account.” Buck, 879 A.2d at 160. As such, Johnson’s claim that he has no liability
due to a lack of a signed order from the Sentencing Court fails because the costs
being deducted from Johnson’s inmate account were statutorily imposed under
Section 9721(c.1) of the Sentencing Code, regardless of whether the Sentencing
Court issued an order imposing costs. Accordingly, it “appear[ing] with certainty
that the law will not permit recovery” on this basis, Respondents’ PO to this claim
is sustained. Pa. State Lodge, Fraternal Order of Police, 909 A.2d at 415-16.

       2.      The Department was required to hold an ability-to-pay hearing.
       Respondents next demur to Johnson’s claim that the Act 84 deductions are
improper because, due to a change of circumstances, the Department was required
to hold an ability-to-pay hearing to continue those deductions. Respondents assert
they had no obligation to provide an ability-to-pay hearing as a matter of law and,
therefore, Johnson has failed to state a claim on this basis. Johnson relies on



       10
          While it is unclear from Johnson’s averments whether he is challenging the $60 fee to
the Crime Victim’s Compensation Fund, that fee is statutorily mandated and does not require
imposition by a sentencing court. See Section 1101 of the Crime Victim’s Act, Act of November
24, 1998, P.L. 882, as amended, 18 P.S. § 11.1101 (requiring a person convicted of a crime to
“pay costs of at least $60” to the Crime Victim’s Compensation Fund and stating that “[n]o court
order shall be necessary in order for the defendant to incur liability for costs under this section”);
Tate, 133 A.3d at 355 (holding that deductions from an inmate account to pay into the Crime
Victim’s Compensation Fund are statutorily authorized).
       11
           Thus, this matter is distinguishable from Rega v. Pennsylvania Department of
Corrections (Pa. Cmwlth., 244 M.D. 2017, filed January 31, 2018), slip op. at 7-8, wherein we
held the Department of Corrections could not rely on Section 9721(c.1) as authorizing the
deduction of costs without a court order because the inmate in Rega was sentenced before that
provision was enacted.
                                                 14
certain statements by the Supreme Court in Bundy I, which he asserts requires that
a new ability-to-pay hearing be held under these circumstances.
       Recently, this Court addressed allegations similar to Johnson’s, including
that the Act 84 deductions were hindering the inmate’s access to the courts, in
Bundy v. Wetzel (Pa. Cmwlth., No. 553 M.D. 2016, filed April 12, 2019), slip op.
at 14 (Bundy II), which was on remand from the Supreme Court.12 In Bundy II, we
reviewed the decision in Bundy I and the underlying case law the Supreme Court
cited therein, Ingram, George, and Montanez, for that Court’s discussion of
whether a change of circumstances would warrant a new ability-to-pay hearing.
Observing that the cases cited in Bundy I only addressed changes in circumstances
prior to the first Act 84 deduction, i.e., between the sentencing hearing and the first
Act 84 deduction, we held in Bundy II that “due process does not entitle a[n
inmate] to be given the means to object to any Act 84 deduction that he or she
alleges materially changes his or her circumstances.” Bundy II, slip op. at 14-17
(emphasis in original). We further held the actual language used by the Supreme
Court in its holding in Bundy I, which suggested that “a material change of
circumstances” included “a threat of additional confinement or increased
conditions of supervision as a result of unpaid financial obligations,” did not
support the conclusion that due process required an inmate be given the ability to
object to Act 84 deductions for any change in the inmate’s circumstances due to
those deductions. Bundy II, slip op at 14, 18 (quoting Bundy I, 184 A.3d at 559)
(emphasis added). Johnson does not allege he will be subjected to additional
confinement or increased conditions of supervision due to his failure to pay his

       12
         Bundy II, an unreported opinion, is cited for its persuasive value in accordance with
Section 414(a) of the Commonwealth Court’s Internal Operating Procedures. 210 Pa. Code
§ 69.414(a).
                                             15
costs.13 For these reasons, Johnson’s averments that he should receive a new
ability-to-pay hearing due to the changed circumstances alleged do not state a
claim upon which relief can be granted. Accordingly, Respondents’ PO to this
claim is sustained.
       Respondents also demur to Johnson’s claim that an ability-to-pay hearing
was required by due process. Respondents assert that the proceedings before the
Sentencing Court satisfy due process, and it is not required to hold a separate
ability-to-pay hearing. Buck, 879 A.2d at 160-61. Johnson avers the Sentencing
Court here did not provide him due process because it did not consider his ability
to pay, as required by Section 9726 of the Sentencing Code; thus, the Department
was required to provide him with that process.
       Johnson relies on Section 9726 of the Sentencing Code to assert that the
Sentencing Court had to consider his finances before ordering the payment of
costs; however, that provision applies only to the imposition of fines. 42 Pa. C.S.
§ 9726. Johnson was not sentenced to pay any fines. Costs are governed, as
discussed above, by Section 9721(c.1), which automatically imposes liability for
the costs, even if no court order imposing costs exists. 42 Pa. C.S. § 9721(c.1).
More importantly, allegations that a Sentencing Court did not inquire into an
inmate’s “ability to pay could be the basis for relief on direct appeal from [a]
sentence or in a post[]conviction [relief] application,” not the basis for requiring

       13
           Although the Supreme Court expressed concern in Bundy I about Act 84 deductions
interfering with an inmate’s ability to pay the costs associated with any Post Conviction Relief
Act (PCRA), 42 Pa. C.S. §§ 9541-9546, action an inmate might be litigating, Johnson does not
aver that his PCRA actions are hindered by the alleged change in circumstances. A review of the
dockets for Johnson’s various PCRA actions, the docket numbers of which are included in an
attachment to the Initial Petition, reveals that Johnson was granted in forma pauperis status and
is actively litigating those cases. (Initial Complaint Ex. CS1; Superior Court Docket Nos. 3497
EDA 2017, 450 EDA 2018, 879 EDA 2018.)
                                               16
the Department to hold an ability-to-pay hearing. Ingram, 830 A.2d at 1103; see
Tate, 133 A.3d at 354-55. The inmate in Ingram challenged the Act 84 deductions
from the inmate’s account to pay for court-ordered restitution, fines, and costs. We
held that the inmate’s challenge to the deduction of funds under Act 84 was “an
improper collateral attack on the sentence.” Id. Accordingly, because it “appear[s]
with certainty that the law will not permit recovery” on this basis, Respondents’
PO to this claim is sustained. Pa. State Lodge, Fraternal Order of Police, 909
A.2d at 415-16.

      3.      Respondents’ failure to provide Johnson with notice before beginning
           the Act 84 deductions in June 2013.
      Respondents demur to Johnson’s claim based on their failure to provide him
with administrative pre-deprivation process before deducting the funds from his
account, as required by Bundy I, asserting that this claim must be dismissed
because they are shielded by qualified immunity. Respondents argue it was not
clearly established when they began deducting the costs from Johnson’s inmate
account in 2013 that the failure to provide pre-deprivation process violated due
process principles. In addition to challenging the assertion of this affirmative
defense as a demurrer, Johnson, citing various federal and Pennsylvania cases and
the Department’s Policy, which he claims has been in effect since 2007, regarding
collecting inmate debts, asserts that “[t]he clear weight of authority existing at the
time the [Department] made the first Act 84 deduction in 2013 clearly established
[Johnson’s] right to notice and an opportunity to object before the first deduction.”
(Johnson’s Brief (Br.) at 22.)
      The doctrine of qualified immunity, as described by the United States
Supreme Court, “protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
                                         17
constitutional rights for which a reasonable person would have known.’” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). “Qualified immunity balances two important interests – the need
to hold public officials accountable when they exercise their power irresponsibly
and the need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably . . . .” Id. In determining whether a law was
“clearly established” at the time of its violation, we must consider whether there
was “controlling authority in [the] jurisdiction at the time in question which clearly
established the rule on which [the petitioner] seek[s] to rely” or “a consensus of
cases of persuasive authority such that a reasonable [government official] could not
have believed that [the official’s] actions were lawful.” Wilson v. Layne, 526 U.S.
603, 617 (1999).
      Johnson asserts it was clearly established by June 2013 that he should have
received pre-deprivation notice and an opportunity to object prior to the first
deduction being made. The first case that definitely addressed the issue, Montanez,
was not decided until 2014, after the first deduction occurred. This Court, as late
as 2016, held that Montanez was only instructive and not binding. Tate, 133 A.3d
at 358 n.11. It was not until 2018 when the Supreme Court decided Bundy I, that it
was clear that such pre-deprivation process was required for Act 84 deductions as a
matter of state law. However, the other federal and Pennsylvania cases Johnson
relies upon, which Respondents do not address in their brief, do constitute at least a
consensus of persuasive authority suggesting that “a reasonable [government
official] could not have believed that [the official’s] actions were lawful.” Wilson,
526 U.S. at 617.



                                         18
      In 2002, the United States Court of Appeals for the Third Circuit held in
Higgins v. Beyer, which involved deductions from an inmate’s federal veteran’s
disability benefits that had been deposited in his inmate account, that the inmate
had stated a claim for a violation of his due process rights because the prison
officials did not provide him with pre-deprivation notice and hearing prior to
deducting the money, in which he had a property interest. 293 F.3d 683, 691, 693-
94 (3d Cir. 2002). In 2009, the Third Circuit issued a decision, Montanez v. Beard,
vacating and remanding the dismissal of a group of inmates’ due process claims
based on the withdrawal of monies for court-ordered costs and restitution under
Act 84 without notice or an opportunity to object. 344 F. App’x 833, 834-35 (3d
Cir. 2009). The Court held that it had addressed the issue before in a non-
precedential opinion in 2006 and that, as in that prior decision, the inmates
“allege[d] sufficient facts to support a [] claim . . . that [they were] deprived of
[their] rights under the Due Process Clause of the Fourteenth Amendment.”
Id. at 837 (citing Hale v. Beard, 168 Fed. App’x. 532 (3d Cir. 2006) (emphasis
added)). In 2011, the Third Circuit held, in Burns v. Department of Corrections,
that the Department’s assessment of an inmate’s account for medical expenses
imposed as a part of the inmate’s internal discipline for a fight was an “impairment
of a cognizable property interest” and that the inmate was “entitled to due process
with respect to any deprivation of money” from his account. 544 F.3d 279, 281,
286 (3d Cir. 2008) (emphasis added).         Notably, in the Third Circuit’s 2014
Montanez decision, the Court cited its 2009 decision in that case, Hale, Burns,
Higgins, and Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir. 1997), and held that
“[t]aken together, these cases make clear that when pre-deprivation process could



                                        19
be effective in preventing errors, that process is required.” Montanez, 773 F.3d
at 484 (emphasis added).
      Johnson also asserts there are decisions from this Court, filed before the
deductions from his account began in 2013, which similarly provide that where
money is taken from an inmate’s account, due process requires the inmate be given
reasonable notice and an opportunity to be heard prior to the deduction. Holloway,
671 A.2d at 1181-82. Johnson notes that Holloway has been the law since 1996
and had been cited in numerous published cases prior to 2013.           In addition,
Johnson cites the Department’s Policy, Section 3 of DC-ADM 005, which sets
forth the procedures for the collection of inmate debts.        Johnson asserts the
Policy’s requirement that an inmate is entitled to a “Notification of Deductions
Memo,” has been in effect since 2007, and that requirement was recognized in the
response he received to his grievance, which stated that there was no “explanation
as to what happened to the original notice” in 2013. (Johnson’s Br. at 26; Initial
Petition, Ex. GR.) While the Department’s administrative policies do not create
rights for inmates, Shore v. Pennsylvania Department of Corrections, 168 A.3d
374, 386 (Pa. Cmwlth. 2017), and Respondents state in their brief that Section 3
was changed “to meet the requirements outlined in” Montanez, (Respondents’ Br.
at 12 n.2), the response to Johnson’s grievance, which upheld the lack of notice
part of the grievance, suggests some kind of pre-deduction notice was the norm,
even in 2013.
      Reviewing these cases and the allegations, we cannot agree with
Respondents that it is clear on the face of the pleadings that they would be entitled
to qualified immunity to allow this defense to be raised as a preliminary objection
or that Johnson has not stated a claim upon which relief can be granted based on


                                         20
their having immunity. Therefore, Johnson’s PO challenging the demurrer on that
basis is sustained, and Respondents’ PO is stricken.
      In sum, following our review of the POs challenging the legal sufficiency of
Johnson’s various Act 84 claims, only one claim remains – that Respondents
violated Johnson’s due process rights by not providing him with administrative
pre-deprivation process prior to the first deduction from his inmate account in
2013. However, Respondents have asserted one more demurrer, challenging the
sufficiency of Johnson’s Act 84 claims based on the expiration of the applicable
statute of limitations. We now turn to that PO.

      4.     The remaining Act 84 claim and the statute of limitations.
      Respondents assert it is clear from the pleadings that Johnson’s Act 84 claim
is barred by the statute of limitations because it was filed more than two years after
the first Act 84 deduction in June 2013. It is now settled that a claim based on the
Department’s deductions from an inmate account pursuant to Act 84 is subject to a
two-year statute of limitations, and an inmate’s cause of action accrues as of the
date of the first Act 84 deduction. Morgalo, 134 A.3d at 1149 & n.14. 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).
Here, Johnson averred that the first Act 84 deduction from his inmate account was
in June 2013 of which he was aware in July 2013. (Amended Petition ¶ 12.) This
is the date his Act 84 claim accrued. Morgalo, 134 A.3d at 1149. Because
Johnson did not file the current action until July of 2018, more than five years after
the first deduction occurred, it is clear from the face of his pleadings that his claims
would be barred by the two-year statute of limitations unless the statute of
limitations was tolled for some reason.

                                          21
         Johnson alleges that it is not clear on the face of the pleading that he is not
entitled to relief because when he questioned the Act 84 deductions in July 2013,
Respondents, via Counselor, fraudulently concealed the illegality of the Act 84
deductions by telling him that the deductions were lawful. (Initial Petition ¶¶ 13,
60-61 (citing Fine v. Checcio, 870 A.2d 850 (Pa. 2005)); Initial Petition Ex. FC;
Amended Petition ¶ 13.) Through these averments, it appears Johnson is asserting
the statute of limitations was tolled based on the doctrine of fraudulent
concealment.      Respondents respond that, to the extent Counselor said this to
Johnson, “one cannot dispute the response” because “[t]he deductions are lawful
and the only way to get them to stop is to pay the costs in full.” (Respondents’ Br.
at 8.)     In other words, Respondents contend that Counselor’s response was
accurate.
         The doctrine of fraudulent concealment tolls the running of the statute of
limitations and is based on estoppel. Fine, 870 A.2d at 860. The doctrine of
fraudulent concealment “provides that the defendant may not invoke the statute of
limitations, if through fraud or concealment, [the defendant] causes the plaintiff to
relax [the plaintiff’s] vigilance or deviate from [the plaintiff’s] right of inquiry into
the facts.”     Id.   “The doctrine does not require fraud in the strictest sense
encompassing an intent to deceive, but rather, fraud in the broadest sense, which
includes unintentional deception.” Id. In order for this doctrine “to be applicable,
‘[a] defendant must have committed some affirmative independent act of
concealment upon which [a] plaintiff[] justifiably relied.’” Krapf v. St. Luke’s
Hospital, 4 A.3d 642, 650 (Pa. Super. 2010) (emphasis added) (citation omitted)




                                           22
(alterations in original).14 “General assurances that a situation . . . is normal do
not rise to the level of fraudulent concealment where the plaintiff’s own
common sense should inform [the plaintiff] that [the plaintiff] has been injured.”
E.J.M. v. Archdiocese of Phila., 622 A.2d 1388, 1395 (Pa. Super. 1995) (emphasis
added). It is the plaintiff’s burden to prove the application of this doctrine “by
clear, precise, and convincing evidence.” Fine, 870 A.2d at 860. “While it is for
the court to determine whether an estoppel results from established facts, it is for
the jury to say whether the remarks that are alleged to constitute the fraud or
concealment were made.” Id. “[A] statute of limitations that is tolled by virtue of
fraudulent concealment begins to run when the injured party knows or reasonably
should know of his injury and its cause.” Id.
      Here, we are not required to determine whether Counselor made the alleged
statements to Johnson because that Counselor’s response to Johnson’s inquiry is
attached to the Initial Petition as Exhibit FC. The question before us, then, is
whether it is clear that, notwithstanding Counselor’s statement, Johnson’s claims
are time barred.     Id.   This necessitates an inquiry into whether Johnson was
“reasonably diligent in informing himself of the facts upon which his recovery may
be based.” Id. at 861. The “reasonable diligence” test evaluates a party’s actions
“to determine whether [the party] exhibited those qualities of attention, knowledge,
intelligence and judgment which society requires of its members for the protection
of their own interest and the interest of others.” Id. at 858. Ordinarily, this
involves a question of fact for the jury, but where “reasonable minds would not
differ in finding that a party knew or should have known on the exercise of

      14
          Although not binding on this Court, Superior Court decisions “offer persuasive
precedent where they address analogous issues.” Lerch v. Unemployment Comp. Bd. of Review,
180 A.3d 545, 550 (Pa. Cmwlth. 2018).
                                           23
reasonable diligence of [the party’s] injury and its cause,” the question can be
resolved as a matter of law by a court. Id. at 858-59.
      In the Initial Petition and Amended Petition, Johnson admits to learning of
the Act 84 deductions in July 2013. While Counselor advised Johnson that the
deductions were lawful, Counselor’s statement could be viewed as a general
assurance that the deductions were normal and would not rise to fraudulent
concealment where common sense would inform Johnson that he was injured.
E.J.M., 622 A.2d at 1395.      Johnson does not allege in the Initial Petition or
Amended Petition how or why Counselor’s statement precluded him from
exercising common sense or inquiring into the accuracy of Counselor’s statement.
Johnson states only that he could rely on Counselor’s statement and was not
required to investigate the accuracy of the statement. (Initial Petition ¶ 61.) We
conclude that “reasonable minds would not differ” that society would expect an
individual in Johnson’s situation to exhibit more diligence in determining the
accuracy of a statement that such deductions were lawful in order to protect the
individual’s interests. Fine, 870 A.2d at 858-60. And, as reflected in his Answer
to Respondents’ POs, which this Court may consider, see Pennsylvania Rule of
Civil Procedure 1017(a)(4), Pa.R.C.P. No. 1017(a)(4) (indicating that a preliminary
objection and response thereto are pleadings in an action), Johnson was capable of
finding, and did find, legal precedent and a Department Policy that he avers
indicate that the Department’s failure to provide him with a pre-deprivation
process to challenge the Act 84 deductions was not “lawful.” (Johnson’s POs ¶¶
37-52, 55-57; Answer to Respondents’ POs ¶¶ 26-41, 44-46.) Accordingly, absent
an explanation as to why Johnson’s reliance on Counselor’s statement was
justifiable or why that statement was more than a general assurance that the


                                         24
situation was normal, Johnson was not “reasonably diligent in informing himself of
the facts upon which his recovery may be based.”           Fine, 870 A.2d at 861.
Therefore, it would be clear from the face of the pleadings that the statute of
limitations was not tolled by Counselor’s statement.
      Johnson does aver in his Answer to Respondents’ POs that Counselor “was
in a position of trust.” (Answer to Respondents’ POs ¶¶ 21-22.) He alleges that,
as a result of Counselor’s statement, he “relax[ed] his vigilance and deviate[d]
from his right of inquiry into the facts.” (Id. ¶ 24.) In support, Johnson cites Acker
v. Palena, 393 A.2d 1230, 1234 (Pa. Super. 1978), a medical malpractice matter in
which the patient’s reliance upon a physician’s assurances was held to toll the
statute of limitations because of the position of trust the physician held. Johnson
does not cite any legal authority to support the proposition that his relationship
with Counselor is similar to the relationship a physician has with a patient such
that his reliance would be justifiable. Such relationships may arise as a matter of
law, but may also arise from the specific facts and circumstances of a case. Basile
v. H & R Block, Inc., 777 A.2d 95, 102 (Pa. Super. 2001). Johnson does not aver
any specific facts or circumstances that support his allegation that Counselor “was
in a position of trust.” (Answer to Respondents’ POs ¶¶ 21-22.) Because there are
insufficient facts averred to support Johnson’s bald assertion regarding Counselor’s
position of trust, or why his reliance on Counselor’s statement was justifiable, it is
clear from the face of the pleadings that the statute of limitations was not tolled by
Counselor’s statement.       Accordingly, we overrule Johnson’s PO, sustain
Respondents’ PO, and, because the only remaining claim is time barred, the
Amended Petition is dismissed with prejudice.



                                         25
      III.   Conclusion
      For the foregoing reasons, we sustain Respondents’ PO asserting that
Johnson has failed to state a negligence claim based on their having immunity,
overrule Johnson’s corresponding PO, and dismiss the negligence claim with
prejudice. We dismiss as moot Respondents’ PO to the negligence claim based on
the expiration of the statute of limitations and Johnson’s corresponding PO. We
sustain Respondents’ POs to Johnson’s Act 84 claims, exclusive of the due process
claim based on the lack of an administrative pre-deprivation process, and dismiss
those claims with prejudice. We sustain Johnson’s PO challenging Respondents’
asserting qualified immunity to his due process claim premised on the lack of
administrative pre-deprivation process as a PO and strike Respondents’ PO in that
regard. However, we sustain Respondents’ PO to that remaining Act 84 claim
based on the expiration of the statute of limitations, overrule Johnson’s
corresponding PO, and dismiss that claim with prejudice. As there are no claims
remaining, we dismiss Johnson’s Amended Petition with prejudice.


                                       ________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                       26
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Aquil Johnson,                         :
                           Petitioner  :
                                       :
                     v.                :   No. 497 M.D. 2018
                                       :
John Wetzel, Secretary PA. D.O.C.,     :
Mark Garman, Super., S.C.I. Rockview :
et al., Officers, Agents, Servants,    :
Employees and Attorneys,               :
                           Respondents :



                                   ORDER


      NOW, June 3, 2019, the preliminary objections (POs) filed by John Wetzel,
Secretary PA. D.O.C., Mark Garman, Super., S.C.I. Rockview, et al., Officers,
Agents, Servants, Employees and Attorneys (together, Respondents) to the
Amended Petition for Review (Amended Petition) filed by Aquil Johnson, and the
corresponding POs filed by Johnson are resolved as follows:
    Respondents’ PO asserting that Johnson has failed to state a negligence
      claim based on their having sovereign immunity is SUSTAINED, Johnson’s
      corresponding PO is OVERRULED, and the negligence claim is
      DISMISSED WITH PREJUDICE;


    Respondents’ PO to the negligence claim based on the expiration of the
      statute of limitations and Johnson’s corresponding PO are DISMISSED AS
      MOOT;
 Respondents’ POs to Johnson’s Act 84 claims, exclusive of the due process
   claim based on the lack of an administrative pre-deprivation process, is
   SUSTAINED, and those claims are DISMISSED WITH PREJUDICE;


 Johnson’s PO challenging Respondents’ asserting the affirmative defense of
   qualified immunity to his Act 84, 42 Pa. C.S. § 9728(b)(5), claim premised
   on the lack of administrative pre-deprivation process as a PO is
   SUSTAINED, and Respondents’ PO in that regard is STRICKEN;

 Respondents’ PO to the remaining Act 84 claim based on the expiration of
   the statute of limitations is SUSTAINED, Johnson’s corresponding PO is
   OVERRULED, and that claim is DISMISSED WITH PREJUDICE.


      As there are no claims remaining, Johnson’s Amended Petition in its
entirety is DISMISSED WITH PREJUDICE.


                                    ________________________________
                                    RENÉE COHN JUBELIRER, Judge
