              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania             :
                                         :   No. 274 C.D. 2017
            v.                           :
                                         :   Submitted: April 20, 2018
Amanda Confer                            :
                                         :
Appeal of: Lycoming County               :
Controller’s Office                      :


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                          FILED: July 17, 2018


            The Lycoming County Controller’s Office (Controller) appeals from the
January 17, 2017 order of the Court of Common Pleas of Lycoming County (trial court)
directing the Controller to reimburse Luke Ellison all costs, fees, and taxes expended
in the replacement of his work pants.
            The following facts are garnered from the trial court’s May 1, 2017
opinion, as well as the original record submitted by the trial court. Ellison worked as
an Adult Probation Officer for Lycoming County. Ellison, in the course of performing
his duties and chasing a criminal defendant, Amanda Confer, tore his work pants.
Ellison subsequently sought reimbursement in the amount of $60.00 for new work
pants from Lycoming County’s Human Resources Department (HR) and submitted a
receipt from Rogers Uniforms for that amount. Although not entirely clear in the
record, it appears that HR forwarded the receipt to the Controller for payment. By
email dated January 6, 2017, Krista Rogers, Lycoming County’s Controller, responded
that such payment could not be approved, noting that compensation for personal
clothing is generally not payable unless required by union contract. That same day, Ed
McCoy, the chief of Lycoming County’s Adult Probation Office, responded to Rogers
that the expense would be reimbursed by Defendant Confer as restitution and that
Ellison should not have to pay for pants that he tore while chasing a defendant in the
scope of his employment. On January 10, 2017, McCoy emailed the President Judge
of the trial court suggesting that the cost of the pants be paid out of a restitution fund
or that she order such payment from “Act #35.”1 (Trial court’s Supplemental Opinion,
6/7/17, Exhibit 2c.)



       1
         The term “Act #35” appears to reference the County Offender Supervision Fund, which was
established by section 4(a) of the Crime Victims Act, and provides, in pertinent part, as follows:

              The county treasurer of each county shall establish and administer a
              county offender supervision fund consisting of the fees collected under
              this section. The county treasurer shall disperse money from this fund
              only at the discretion of the president judge of the court of common
              pleas. The money in this fund shall be used to pay the salaries and
              employee benefits of all probation and parole personnel employed by
              the county probation and parole department and the operational
              expenses of that department. Money from this fund shall be used to
              supplement Federal, State or county appropriations for the county adult
              probation and parole department. The president judge shall by August
              31 provide the board with an annual statement which fully reflects all
              collections deposited into and expenditures from the offender
              supervision fund for the preceding fiscal year. The board shall
              promulgate regulations to provide for the permanent administration of
              this program.

Act of August 14, 1991, P.L. 331, No. 35, as amended, 18 P.S. §11.1102(a).



                                                2
              One week later, on January 17, 2017, the trial court appears to have sua
sponte entered an order directing the Controller to reimburse Ellison for all costs, fees,
and taxes expended in the replacement of his work pants from the County Offender
Supervision Fund as an operational expense of the Adult Probation Office. This order
was entered on the docket of the criminal matter involving Defendant Confer at
Commonwealth of Pennsylvania v. Confer, trial court number CR-736-2016, on
January 26, 2017. The Controller filed a motion for reconsideration on February 8,
2017. By order entered February 16, 2017, the trial court denied this motion. The
Controller thereafter filed appeals with both this Court and the Superior Court.2
              The trial court then directed the Controller to file a concise statement of
errors complained of on appeal. The record contains no such statement or any
indication that one was filed. On May 2, 2017, the trial court issued an opinion in
support of its order pursuant to Pa.R.A.P. 1925(a)(1). In this opinion, the trial court
first stated that it was treating the Controller’s motion for reconsideration as a post-trial
motion which, in a criminal matter, must be filed within 10 days after imposition of
sentence. See Pa.R.Crim.P. 720(A)(1). Given that its order was entered on January
26, 2017, the trial court noted that any post-trial motion had to have been filed by
February 6, 2017.          Because the Controller did not file its motion for
reconsideration/post-trial motion until February 8, 2017, the trial court concluded that
the motion was untimely.
              Alternatively, the trial court addressed the merits of the Controller’s
appeal. The trial court first noted its discretion to disperse monies from the County
Offender Supervision Fund for operational expenses under section 4(a) of the Crime

       2
          By order dated May 11, 2017, the Superior Court transferred the matter to this Court.
However, in light of the concurrent appeal already filed with this Court, we discontinued the
transferred appeal by order dated May 18, 2017.


                                              3
Victims Act.       The trial court cited regulations addressing the County Offender
Supervision Fund, which provide that the “county treasurer/chief financial officer shall
disperse moneys from this fund only at the discretion of the president judge of the court
of common pleas” and that such funds shall be used to cover, inter alia, “operational
expenses” of the adult probation and parole departments. 37 Pa. Code §68.52(a). The
trial court explained that the term “operational expenses” is not defined in the
regulations, but noted that “an operating expense is a cost of doing business.” (Trial
court op., 5/2/17, at 3.) While Lycoming County does not pay for uniforms for adult
probation officers in the normal course of business, the trial court stated that “the
payment for employment related clothing in this circumstance was lawful” and
authorized under Lycoming County Human Resources Policy Number 511.3 Id.
               The trial court further explained that adult probation officers “must wear
heavy duty trousers while working,” “are required to carry various pieces of equipment
on their persons, including a gun,” and “typically wear . . . tactical-type pants that are
durable and have several pockets for supplies.” Id. Because Ellison’s work pants
“were specifically damaged by Defendant [Confer] while . . . detaining Defendant
pursuant to his job,” the trial court concluded that the work pants represented an
operational expense and were appropriately deemed a subject of reimbursement from
the County Offender Supervision Fund. Id.
               Upon review of the trial court’s May 2 opinion and the original record
transmitted in this matter, it became apparent that the same was insufficient for
purposes of effective appellate review. Hence, by order dated May 18, 2017, this Court
directed the trial court to file a supplemental record detailing the manner in which the
Adult Probation Office made the request for reimbursement, the lack of a transcript of


      3
          The Lycoming County Human Resources Policy is not included in the record herein.


                                                4
the proceedings below, how the Controller became a party to a criminal proceeding,
and the basis upon which the trial court treated the Controller’s motion for
reconsideration, with the Controller being a non-party, as a motion for post-trial relief
in a criminal matter.
               In a supplemental opinion dated June 7, 2017, the trial court explained
that it incorporated an ancillary matter, reimbursement for Ellison’s work pants, into
the criminal proceedings because counsel for the Controller filed the appeal to the
underlying criminal docket. The trial court noted its belief that Defendant Confer
would reimburse Lycoming County for the cost of the work pants as restitution. 4 As
to the manner in which the Adult Probation Office made the request for reimbursement,
the trial court attached exhibits to its order, including Ellison’s receipt for the purchase
of new work pants and the emails addressed above, i.e., the Controller’s January 6,
2017 email denying reimbursement, McCoy’s January 6, 2017 email stating his belief
that Ellison should not have to pay for the new work pants, and McCoy’s January 10,
2017 email to the President Judge suggesting that she issue an order directing
reimbursement from the County Offender Supervision Fund. The trial court noted that
there was no transcript as the request was made orally on the record in a courtroom.
The trial court further cited to an email from the Controller on January 10, 2017,
indicating that no payment shall be made without an order of court and McCoy’s email
of the same date suggesting that the President Judge issue such an order.
               Upon review of the trial court’s supplemental opinion, by order dated July
6, 2017, this Court directed the parties to address in their principal briefs on the merits
the appealability of the trial court’s February 16, 2017 order and the issue of whether
the Controller has preserved any issues for appellate review. Following an extension,

       4
          The trial court did not cite to, nor could this Court find in the record, any order directing
such restitution by Defendant Confer.


                                                  5
the Controller filed a brief on September 18, 2017. Given the procedural irregularities
in this matter, there was no appellee herein and, hence, no responsive brief was filed.
              On appeal, the Controller argues that its motion to reconsider and notice
of appeal were timely filed and that the trial court’s January 17, 2017 order was a final,
appealable order. Additionally, the Controller argues that the trial court erred by sua
sponte issuing an order under a criminal docket number directing that reimbursement
be made to Ellison from the County Offender Supervision Fund.
              We begin with this last argument by Controller, with which this Court
agrees. The Controller was not a party to the underlying criminal matter; rather, the
criminal matter merely involved the Commonwealth of Pennsylvania and Defendant
Confer. The current matter was of a civil nature initiated by Ellison’s request for
reimbursement from Lycoming County’s HR department. Also, other than emails, the
trial court fails to reference, nor does the record reveal, the specific manner in which
the matter of reimbursement was brought before the trial court.5 In addition, while the
trial court concluded in its May 2, 2017 opinion that such reimbursement was allowable
under Lycoming County Human Resources Policy Number 511, the policy is not
included in the record and, hence, we cannot determine whether this policy sets forth a
specific procedure to obtain the type of reimbursement sought herein, let alone whether
any such policy was followed. In this regard, the trial court did note that Lycoming
County does not pay for uniforms for adult probation officers in the normal course of
business. For these reasons, we must conclude that the trial court erred by sua sponte




       5
         The trial court, in its June 7, 2017 supplemental opinion, alludes to an oral request being
made on the record in a courtroom. However, the trial court does not provide, nor does the original
record reveal, any further details as to whom made the request or the context of the proceeding in
which such request was made.


                                                 6
issuing an order under a criminal docket number directing the Controller to reimburse
Ellison for new work pants from the County Offender Supervision Fund.
            Accordingly, the order of the trial court is reversed.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                           7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania          :
                                      :    No. 274 C.D. 2017
            v.                        :
                                      :
Amanda Confer                         :
                                      :
Appeal of: Lycoming County            :
Controller’s Office                   :


                                   ORDER


            AND NOW, this 17th day of July, 2018, the order of the Court of
Common Pleas of Lycoming County, dated January 17, 2017, is hereby reversed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
