                                     [J-48-2018]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                  WESTERN DISTRICT

     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


KEVIN A. BUNDY,                               :    No. 2 WAP 2017
                                              :
               Appellant                      :    Appeal from the Order of the
                                              :    Commonwealth Court dated 10/19/16 at
                                              :    No. 553 MD 2016
                  v.                          :
                                              :
JOHN E. WETZEL, SECRETARY, PA                 :
DEPARTMENT OF CORRECTIONS,                    :
TAMMY FERGUSON,                               :    SUBMITTED:    May 2, 2018
SUPERINTENDENT, SCI BENNER                    :
TOWNSHIP AND FRANK DOUGHERTY,                 :
BUSINESS MANAGER, SCI BENNER                  :
TOWNSHIP,                                     :
                                              :
               Appellees                      :


                                        OPINION


CHIEF JUSTICE SAYLOR                               DECIDED: MAY 4, 2018

         This pro se direct appeal arises from Appellant’s challenge to the deduction of

funds from his prisoner account to satisfy financial obligations imposed as part of his

criminal sentences. He contends, primarily, that he was constitutionally entitled to pre-

deprivation notice and a hearing before such deductions began.

         Appellant is an inmate confined at SCI-Benner Township.        After exhausting

administrative remedies, he initiated the present litigation by filing a complaint in the

Centre County Court of Common Pleas,1 naming as defendants various officials of the



1   Benner Township is located in Centre County.
Pennsylvania Department of Corrections in their official capacity. The primary focus of

the complaint concerned the Department’s withdrawals from his inmate account to

satisfy obligations imposed on him at sentencing.2           The Department made the

deductions pursuant to Section 9728(b)(5) of the Sentencing Code, which states:

       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 . . .. Any amount
       deducted shall be transmitted . . . 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). Withdrawals made per this statutory authorization are known

as “Act 84 deductions” because the provision was added to Section 9728 by Act 84 of

1998. See Act of June 18, 1998, P.L. 640, No. 84, §4.

       According to the allegations in Appellant’s complaint,3 Appellant was subject to

financial obligations based on criminal convictions in Jefferson and Clearfield Counties.

As a result of the Jefferson County prosecution, he was responsible to pay a total of

$1,135; in Clearfield County, the sum was $8,033. Consistent with Act 84 and the

Department’s policy statement entitled DC-ADM-005 (relating to the collection of inmate

debts), to recover these costs the Department began deducting twenty percent of all

deposits into Appellant’s account, which have solely consisted of monetary gifts from

2 Criminal sentences can include restitution, reparation, fees, costs, fines, and penalties.
See 42 Pa.C.S. §9728. Such liabilities as imposed on Appellant at sentencing will be
referred to here, collectively, as “costs” or “financial obligations.”

3 As Appellant is appealing from an order sustaining preliminary objections in the nature
of a demurrer, his well-pleaded factual averments are accepted as true throughout this
opinion. See McNeil v. Jordan, 586 Pa. 413, 435, 894 A.2d 1260, 1273 (2006). The
factual background summarized here is based on those allegations.


                                      [J-48-2018] - 2
friends and relatives.     Deductions made as of the complaint’s filing have totaled

$681.19, and they have only pertained to the Jefferson County matter.

       Appellant has no tangible assets and no source of income other than the

occasional gifts mentioned above. He needs to use these gifted funds, inter alia, to

litigate a PCRA petition he previously filed.

       At his sentencing hearing in Jefferson County, the common pleas court did not

consider his ability to pay the financial obligations imposed, and it did not inform him the

Department would be making deductions from his inmate account to satisfy those

obligations. That tribunal subsequently rejected Appellant’s “Petition to Vacate Fine or

Extend Time to Pay Fines, Costs and Restitution” on jurisdictional grounds.

       In light of these circumstances, Appellant claimed he was not afforded any pre-

deprivation process – as required by Montanez v. Secretary Pennsylvania Department

of Corrections, 773 F.3d 472 (3d Cir. 2014) – by either the sentencing court or the

Department before the first deduction occurred. He thus asserted a violation of his due

process rights under the Fourteenth Amendment.           Appellant additionally questioned

whether the Department could make deductions from monies gifted to him by others, as

his criminal sentences were imposed on him personally and not on the individuals

making the gifts.

       In terms of relief, Appellant sought an injunction preventing further deductions

from his account, a declaratory judgment, compensatory damages in the form of a

return of all funds already deducted, and the costs of litigation. He additionally couched

his request for a return of the deducted funds in terms of an action of replevin. See

generally Pa.R.C.P. No. 1071 (prescribing that the procedure in actions of replevin is to

conform with the rules for civil actions).




                                       [J-48-2018] - 3
       Appellees filed a preliminary objection challenging the county court’s jurisdiction

over the dispute, and another in the nature of a demurrer. The common pleas court

agreed it lacked jurisdiction and transferred the matter to the Commonwealth Court

because the complaint was filed against Commonwealth officers acting in their official

capacity. See 42 Pa.C.S. §761(a)(1), (b) (giving the Commonwealth Court exclusive

original jurisdiction over actions against Commonwealth officers acting in their official

capacity).

       In a two-page unsigned filing, the Commonwealth Court sustained Appellees’

preliminary objection in the nature of a demurrer and dismissed the complaint. See

Bundy v. Wetzel, No. 553 M.D. 2016, Memorandum and Order, slip op. at 1 (Pa.

Cmwlth. Oct. 19, 2016).      The court explained that:       the Department is statutorily

authorized to collect court-ordered costs, see id. at 2 (citing 42 Pa.C.S. §9728(b)); an

inmate is not entitled to a hearing on his ability to pay, see id. (citing Buck v. Beard, 583

Pa. 431, 879 A.2d 157 (2005)); and the fact that the funds originated from gifts is of no

moment because the General Assembly has not created an exception for gifts made to

an inmate’s account, see id. (citing Danysh v. Dep’t of Corr., 845 A.2d 260 (Pa. Cmwlth.

2004)). Also, the court rejected Appellant’s due process argument under Montanez,

reasoning that Appellant was aware of the amounts he owed and had unsuccessfully

sought relief from those obligations in the common pleas court. See id.

       On appeal to this Court, Appellant first challenges the Commonwealth Court’s

jurisdiction to entertain this matter, stating that replevin actions are governed by the

Rules of Civil Procedure.     He references the venue rule, which vests venue in the

county in which the property to be replevied is located.        See Pa.R.C.P. No. 1072.

Appellant also indicates that the Commonwealth Court referred to his filing as a Petition




                                      [J-48-2018] - 4
for Review, which he construes as implicating appellate principles.          See Brief of

Appellant at 13 (citing Pa.R.A.P. 1513).

       As to the latter contention, Appellant initially fails to recognize that Rule 1513

discusses both appellate and original jurisdiction petitions for review before the

Commonwealth Court. See Pa.R.A.P. 1513(e) (relating to the content of an original-

jurisdiction petition for review).   More particularly, appellate rule 1502 directs that,

insofar as governmental determinations are concerned, certain traditional original-

jurisdiction actions, including replevin, are abolished and a petition for review under

Chapter 15 of the Rules of Appellate Procedure “shall be the exclusive procedure for

judicial review of a determination of a government unit.” Pa.R.A.P. 1502. Notably, as

well, Appellant filed his action against state-government officers, thereby invoking the

Commonwealth Court’s original, exclusive jurisdiction. See 42 Pa.C.S. §761(a)(1), (b).

       Having resolved the jurisdictional question, we turn to the due process issue at

the center of this appeal.

       Appellant argues he was never made aware of the amount of his financial

obligations imposed in the Jefferson County sentence, claiming that neither the

sentencing court nor the Department conveyed that information to him or informed him

that the latter would deduct funds from his inmate account.        These circumstances,

Appellant maintains, are inconsistent with the Third Circuit’s analysis in Montanez,

under which the Fourteenth Amendment’s Due Process Clause requires notice and an

opportunity for the prisoner to object prior to the first deduction. See Montanez, 773

F.3d at 486. Appellant also asserts that the deductions from personal gifts violates the

legislative intent underlying Act 84. In this regard, he maintains that fines, restitution,

and the like, are ordered against the defendant and not his relatives and friends.




                                      [J-48-2018] - 5
       Finally, Appellant proceeds to discuss a statutory provision that exempts wages,

salaries, and commissions still in the hands of an employer from attachment. See 42

Pa.C.S. §8127.     He indicates that this provision should extend to Act 84 to make

personal gifts immune from deduction. Appellant acknowledges that Act 84 authorizes

the Department to develop guidelines for the deductions, see id. §9728(b)(5), but he

contends that the Department, while retaining discretion, “may not alter the legal rights

of this Appellant or the duties of a Sentencing Court.” Brief of Appellant at 31.

       Our review of an order sustaining preliminary objections in the nature of a

demurrer is de novo and plenary. See Sernovitz v. Dershaw, 633 Pa. 641, 649, 127

A.3d 783, 788 (2015). The overall issue is whether the averments are legally sufficient

to state a claim for relief. See Mazur v. Trinity Area Sch. Dist., 599 Pa. 232, 240, 961

A.2d 96, 101 (2008). A demurrer should only be sustained if, on the facts averred, the

law says with certainty that no recovery is possible. See Emp’rs Ins. of Wausau v.

PennDOT, 581 Pa. 381, 388 n.5, 865 A.2d 825, 829 n.5 (2005) (internal quotation

marks and citation omitted)).     All doubts on that question are resolved in favor of

overruling it. See id.

       Appellant’s legislative intent and statutory construction arguments are unavailing.

There is no indication in the complaint that the funds Appellant receives from his family

and friends are anything other than gifts – that is, “voluntary gratuitous transfer[s] of

property . . . where the donor manifests an intent to make such a gift and . . . irrevocably

delivers the property to the donee.” 38A C.J.S. Gifts §1; see also id. §3 (explaining that

an inter vivos gift “is a voluntary transfer of property by the owner to another, without

any consideration or compensation as an incentive or motive for the transaction” (citing

Washington Univ. v. Catalona, 490 F.3d 667, 674 (8th Cir. 2007))). Thus, upon receipt

by Appellant, the donated monies belonged to him alone and not to the donor.


                                      [J-48-2018] - 6
Appellant does not point to any aspect of the Sentencing Code suggesting funds

belonging to an inmate are exempt from Act 84 deductions by virtue of their having

been given to the prisoner as a gift. See generally Danysh, 845 A.2d at 263 (“The

Legislature has not provided an exception [to Act 84] for gifts placed in an inmate’s

personal account[.]”).

       As for Section 8127, that provision by its terms does not apply to gifts, but only to

“wages, salaries and commissions . . . while still in the hands of an employer.” 42

Pa.C.S. §8127(a). See generally 18 Pa.C.S. §5123(b) (providing that when a person

gives money to an inmate, the funds are credited to the prisoner’s account and

expended in accordance with the prison’s rules and regulations).

       Appellant’s argument that the Due Process Clause requires some form of pre-

deprivation notice is more compelling, however. Because Appellant retains a property

interest in the money in his account, see Buck, 583 Pa. at 435, 879 A.2d at 160 (citing

Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 421 (3d Cir. 2000)); cf. Montanez,

773 F.3d at 483 (suggesting that such property interest is limited because inmates are

not entitled to complete control over their accounts and the state has an important

interest in collecting costs imposed at sentencing), any dispossession of that interest

may only occur in conjunction with “due process of law.” U.S. CONST. amend. XIV, §1;

see Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 708, 4 S. Ct. 663, 667 (1884);

Gardner v. McGroarty, 68 Fed. Appx. 307, 310 (3d Cir. 2003) (“The Fourteenth

Amendment forbids state actors from depriving persons of life, liberty or property

without due process of law.”); accord Buck, 583 Pa. at 436, 879 A.2d at 160.

       Due process is a flexible concept which “varies with the particular situation.”

Zinermon v. Burch, 494 U.S. 113, 127, 110 S. Ct. 975, 984 (1990). Ascertaining what

process is due entails a balancing of three considerations:        (1) the private interest


                                      [J-48-2018] - 7
affected by the governmental action; (2) the risk of an erroneous deprivation together

with the value of additional or substitute safeguards; and (3) the state interest involved,

including the administrative burden the additional or substitute procedural requirements

would impose on the state. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893,

903 (1976). The central demands of due process are notice and an “opportunity to be

heard at a meaningful time and in a meaningful manner.”                Commonwealth v.

Maldonado, 576 Pa. 101, 108, 838 A.2d 710, 714 (2003) (quoting Mathews, 424 U.S. at

333, 96 S. Ct. at 902); see also Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246, 64

S. Ct. 599, 606 (1944) (“The fundamental requirement of due process is an opportunity

to be heard upon such notice and proceedings as are adequate to safeguard the right

for which the constitutional protection is invoked.”).

       In terms of the right to be heard at a meaningful time, the second Mathews

element reflects that avoiding erroneous deprivations before they occur is an important

concern under the Due Process Clause.           There is thus a general preference that

procedural safeguards apply in the pre-deprivation timeframe. See Pa. Coal Mining

Ass’n v. Ins. Dep’t, 471 Pa. 437, 451, 370 A.2d 685, 692 (1977); see also Zinermon,

494 U.S. at 127-28, 110 S. Ct. at 984 (citing cases and explaining that “the [Supreme]

Court usually has held that the Constitution requires some kind of a hearing before the

State deprives a person of liberty or property” (emphasis in original)). If that is not

feasible, such as when the deprivation occurs as a result of a prison-cell search, see

Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194 (1984), or when prison employees

accidentally lose an inmate’s property, see Parratt v. Taylor, 451 U.S. 527, 101 S. Ct.

1908 (1981),4 the availability of a meaningful post-deprivation remedy satisfies due

4The loss in Parratt was due to alleged negligence by prison officials. The Supreme
Court later ruled that due process is not implicated by a state employee’s negligence.
See Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662 (1986).


                                       [J-48-2018] - 8
process. See Zinermon, 494 U.S. at 128, 110 S. Ct. at 984-85 (citing cases). The

“controlling inquiry” in this regard is “whether the state is in a position to provide for pre-

deprivation process.” Hudson, 468 U.S. at 534, 104 S. Ct. at 3204.

         This Court has not previously addressed the way in which these principles apply

to monetary deductions from inmate accounts. In Montanez, the Third Circuit pointed

out that other jurisdictions require at least some process before the first deduction is

made, and that such process need not impose a heavy administrative burden on the

prison. See Montanez, 773 A.3d at 484 (citing IOWA CODE §904.702 (requiring that

inmates be given pre-deprivation notice of the deduction scheme and five days to

submit written objections)). In this respect, Montanez also referenced State v. Peacock,

2003 WL 22952755, at *7 (Ohio Ct. App. 2003), in which the Ohio appellate court ruled

that a governing administrative regulation satisfied due process because, under its

terms:

         [t]he warden’s designee [must provide] notice to the inmate of the debt
         and its intent to seize money from the inmate’s account. The notice must
         inform the inmate of a right to claim exemptions and the type of
         exemptions available under [a relevant statutory provision]. Only after the
         inmate has had an opportunity to assert any exemption or defense, may
         money be withdrawn from the inmate's account.
Id. at *7 (citations omitted). As for Act 84 deductions, the Montanez court held that due

process requires the Department to afford pre-deprivation notice of the prisoner’s total

monetary liability to the Commonwealth, the terms of the Department’s policy regarding

deductions from prisoner accounts, and some means – even if informal – “for inmates to

object to potential errors in the deduction process” before the first deduction occurs

(although not before subsequent deductions). Montanez, 773 F.3d at 486.

         As a general precept, the interests of inmates must always be balanced against

the “unique institutional concerns that arise in the prison setting,” Burns v. Pa. Dep’t of


                                       [J-48-2018] - 9
Corr., 642 F.3d 163, 173 (3d Cir. 2011) – such as securing the prison’s physical plant,

maintaining order, safety, and discipline, and providing for prisoners’ rehabilitative

needs. See Soto v. Dickey, 744 F.2d 1260, 1268-69 (7th Cir. 1984); Small v. Horn, 554

Pa. 600, 616, 722 A.2d 664, 672 (1998). Nevertheless, the provision of notice and a

meaningful (if informal) means to challenge the amount of the debt, assert an

exemption, or otherwise raise an objection to the deduction scheme, seems unlikely to

impact upon these institutional goals. Just as important, doing so can potentially avoid

erroneous deprivations before they occur, such as: deduction from monies which are

exempt (such as veteran’s benefits, see Higgins v. Beyer, 293 F.3d 683 (3d Cir. 2002),

or social security benefits, see Bennett v. Arkansas, 485 U.S. 395, 108 S. Ct. 1204

(1988) (per curiam)); withdrawals predicated on an erroneous total financial obligation,

see Montanez, 773 F.3d at 484 (indicating that the restitution amount reflected in the

Department’s accounting system was $800 higher than the amount of court-ordered

restitution); deductions from the wrong account, cf. Guy v. Carter, 2014 WL 644321

(E.D. La. Feb. 19, 2014) (involving an allegation that withdrawals were made from an

inmate’s account to pay another prisoner’s medical costs); or deductions which are

inconsistent with an installment plan approved by the sentencing court. See 42 Pa.C.S.

§§9730(b)(3); 9758(b).5

5 Appellees object that we should follow Buck instead of Montanez, since the former
represents binding precedent from this Court, whereas the latter is merely instructive.
In fact, Buck is controlling as to some aspects of the question before us. Buck stated
that, because Section 9728(b)(5) went into effect before sentencing occurred, the
defendant had adequate notice of the Department’s authority under Act 84 to deduct
funds from his account. The same reasoning applies to Appellant as he too was
sentenced after Section 9725(b)(5) became effective. Buck additionally established that
due process does not require the Department to arrange for a judicial ability-to-pay
hearing before making deductions. As the Third Circuit recognized, however, Buck did
not deal with whether any sort of administrative pre-deprivation process is
constitutionally required before the first deduction is made.


                                    [J-48-2018] - 10
       Therefore, we agree with the Third Circuit’s holding that, to comply with due

process, the Department must, prior to the first deduction: (a) inform the inmate of the

total amount of his financial liability as reflected in his sentencing order, as well as the

Department’s policy concerning the rate at which funds will be deducted from his

account and which funds are subject to deduction; and (b) give the inmate a reasonable

opportunity to object to the application of the Department’s policy to his account. See

Montanez, 773 F.3d at 486; see also Higgins, 293 F.3d at 694. These measures will

help protect against errors in the Department’s application of its Act 84 deduction policy

without significantly impeding its ability to carry out essential functions. As such, they

are indicated pursuant to the balancing assessment prescribed by the Supreme Court in

Mathews.

       As applied here, Appellant has alleged he was not given pre-deprivation notice

concerning the amount he owed or an opportunity to object.6 Several of Appellant’s

averments focus on the alleged impropriety of making deductions from gifts. Others

claim an entitlement to an ability-to-pay hearing, which, under prevailing Pennsylvania

law as established by the Commonwealth Court, would only be implicated in relation to

Act 84 deductions if there has been a “material change of circumstances” – such as a

threat of additional confinement or increased conditions of supervision as a result of

unpaid financial obligations. Ingram v. Newman, 830 A.2d 1099, 1103 (Pa. Cmwlth.

2003); see also George v. Beard, 824 A.2d 393, 396 (Pa. Cmwlth. 2003); Dep’t of Corr.

v. Tate, 133 A.3d 350, 356 (Pa. Cmwlth. 2016).




6 Appellees seek to counter this contention by observing that Appellant had become
aware of his total financial obligations by the time he filed his complaint. See Brief for
Appellees at 10. This observation is not directly responsive to Appellant’s claim that he
did not receive such information in the pre-deprivation timeframe.


                                     [J-48-2018] - 11
       We have already rejected the first theory relating to gifted funds. Still, construing

Appellant’s prison-drawn, pro se averments with some leniency, as is our custom, see

Commonwealth v. Eller, 569 Pa. 622, 634-35, 807 A.2d 838, 845 (2002);

Commonwealth v. Murray, 481 Pa. 201, 205, 392 A.2d 317, 319 (1978), he has alleged

that, due to his indigence, the deductions have adversely affected his ability to litigate

his PCRA petition.       We find this allegation resonant because the change-in-

circumstances prerequisite, as developed by the Commonwealth Court in George and

Ingram, is grounded on the premise that the prisoner can obtain meaningful merits

review of the financial aspects of his sentence through direct appeal or post-conviction

proceedings.     See George, 824 A.2d at 396; Ingram, 830 A.2d at 1102-03.            If (as

asserted) that opportunity is substantially encumbered by the Department’s Act 84

deductions, an issue arises whether the George/Ingram rule should be extended to

encompass such a circumstance. It would be premature for us to address that question

at the present, demurrer stage of these proceedings because no impediment has yet

been found to exist. If factual development bears out Appellant’s position in this regard,

however, the question will become salient.

       Even apart from any concrete harm, if a procedural due process violation is

demonstrated, nominal damages may be warranted. See Carey v. Piphus, 435 U.S.

247, 266, 98 S. Ct. 1042, 1053-54 (1978) (stating that because the right to procedural

due process is “absolute” and independent of the merits of a claimant’s substantive

assertions, its denial is “actionable for nominal damages without proof of actual injury”);

Higgins, 293 F.3d at 694 n.3.       As well, Appellant has asked for declaratory and

injunctive relief.




                                     [J-48-2018] - 12
       In view of the foregoing, when Appellant’s well-pleaded allegations are accepted

as true, the law does not say with certainty that no relief is available. Accordingly, the

Commonwealth Court should not have sustained Appellees’ demurrer.7

       The order of the Commonwealth Court is reversed and the matter is remanded to

that court for further proceedings.



       Justices Baer, Todd, Donohue, Dougherty, Wecht and Mundy join this opinion.




7If Appellant ultimately demonstrates that his constitutional rights were violated, it will
be for the Commonwealth Court to decide, in the first instance, what the remedy should
be.


                                      [J-48-2018] - 13
