           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Geoffrey Elkington,                          :
                          Petitioner         :
                                             :
                   v.                        :   No. 478 M.D. 2018
                                             :   Submitted: January 25, 2019
Department of Corrections,                   :
                        Respondent           :



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


      Presently before the Court are the Preliminary Objections in the nature of a
demurrer filed by the Pennsylvania Department of Corrections (Department) to
Geoffrey Elkington’s (Elkington) Petition for Review (Petition) in this Court’s
original jurisdiction. Elkington’s Petition challenges the Department’s deductions
from Elkington’s inmate account for alleged court costs. For the reasons that follow,
we overrule the Department’s Preliminary Objections and direct the Department to
file an answer to the Petition for Review.
      Initially, we note that when ruling on preliminary objections in the nature of
a demurrer, this Court must accept all well-pleaded material allegations in the
Petition, and any inferences reasonably deduced therefrom, as true. Portalatin v.
Dep’t of Corr., 979 A.2d 944, 947 (Pa. Cmwlth. 2009). In order to sustain the
Preliminary Objections, “it must appear with certainty [that] the law will not permit
recovery; any doubt must be resolved by a refusal to sustain the demurrer.” Oakman
v. Dep’t of Corr., 893 A.2d 834, 836 n.7 (Pa. Cmwlth. 2006).
       The facts as averred in Elkington’s Petition are as follows. The Court of
Common Pleas of Chester County (trial court) sentenced Elkington on December
16, 2010, to 25- to 50-years’ imprisonment. (Petition ¶¶ 1-2.) On January 23, 2018,
the Department notified Elkington that it would begin to take a 20-percent deduction
from his inmate account for court costs totaling $2,974.35, and it started those
deductions on June 7, 2018.1 (Id. ¶¶ 4, 7.) The Department justified the deductions
for court costs by referencing the DC-300B Commitment Form and Sentencing
Sheets in the Department’s possession. (Id. ¶ 5.) Elkington filed a grievance
contesting these deductions and exhausted his administrative remedies. (Id. ¶ 6.)
Elkington alleges that the trial court expressly stated at the time of his sentencing
that it would not order the payment of costs or fines, and no official sentencing order
exists to support the Department’s contention otherwise. (Id. ¶ 8.) Elkington alleges
that a request under the Right-to-Know Law2 revealed that no sentencing order
exists, and his requests to the trial court for a transcript of the sentencing hearing
revealed that no transcript exists either. (Id. ¶ 12.) Elkington asserts that the
Sentencing Sheets and DC-300B Commitment Form are not sentencing orders.
Even if they were, the Department of Corrections does not have the authority to
collect costs that are not specifically ordered by the trial court, as set forth in Section
9728(b)(5) of the Sentencing Code, 42 Pa. C.S. § 9728(b)(5), commonly referred to


       1
          Elkington also avers that as of June 2011, the Department began deducting 10 percent of
his income to satisfy his obligation to the Crime Victim Compensation Fund, but Elkington does
not dispute these deductions. (Petition ¶ 3.)
        2
          Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.


                                               2
as Act 84. (Petition ¶¶ 9-10.) Section 9728(b)(5) provides generally that the
Department “shall be authorized to make monetary deductions from inmate personal
accounts for the purpose of collecting restitution or any other court-ordered
obligation.” 42 Pa. C.S. § 9728(b)(5). Elkington requests an interlocutory order
requiring the Department to stop making deductions until a valid sentencing order
or transcript from the sentencing hearing is produced showing that he was ordered
to pay costs. (Petition ¶ 13.) Further, Elkington seeks the return of the funds that he
contends were improperly deducted from his account for these court costs, as well
as full restitution of costs incurred in filing the grievances and this action, and
punitive damages. (Id. ¶ 14.) Attached to Elkington’s Petition is his filed grievance
and related appeals.
       In response, the Department filed the instant Preliminary Objections, asserting
that Elkington failed to state a claim upon which relief can be granted because the
Department was authorized to take the deductions under Sections 9721(c.1) and
9728(b)(5) of the Sentencing Code, 42 Pa. C.S. §§ 9721(c.1), 9728(b)(5). Attached
to the Preliminary Objections are the Sentencing Sheets and the DC-300B
Commitment Form, both of which list the charges upon which Elkington was found
guilty and the sentence imposed.3 The Sentencing Sheets are pre-printed forms filled


       3
         As a general rule, this Court is limited to considering the facts as alleged within a petition
for review when ruling on preliminary objections, and the moving party’s attempts to supply
missing facts from the petition for review constitutes an impermissible “speaking demurrer.”
Armstrong Cty. Memorial Hosp. v. Dep’t of Pub. Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013).
However, a limited exception to this rule exists where the petitioner has averred “the existence of
a written agreement and relies upon it to establish his cause of action.” Id. In those circumstances,
the responding party may attach the agreement, and this Court may consider it, as “the agreement
is a factual matter arising out of the complaint itself.” Id. at 170-71 (citation omitted).
Accordingly, we can consider the Sentencing Sheets and DC-300B Commitment Form referenced
in Elkington’s Petition and attached to the Department’s Preliminary Objections.



                                                  3
in by hand and signed by both the trial court judge and the clerk of courts on
December 16, 2010. On the first page of the Sentencing Sheets, a handwritten
notation dated January 4, 2011, appears on the side of the page and states “Cost[s] -
$3034.35.” (Preliminary Objections, Ex. A.) For each count for which Elkington
was sentenced, the Sentencing Sheet has a pre-printed space reading “Fine ___,”
through which someone has handwritten a dash, and the pre-printed word “Costs,”
around which a pre-printed box appears.4 The DC-300B Commitment Form lists on
the first page Elkington’s mandatory and maximum sentence for confinement on the
first charge and lists under the heading “Cost” an amount of $2,974.35. (Preliminary
Objections, Ex. B.) The remaining pages on the DC-300B Commitment Form list
$0.00 in costs for the sentences on the remaining charges. The Department asserts
that the Sentencing Sheets and DC-300B Commitment Form show the imposition of
costs, and there is no indication in these documents that the trial court waived those
costs.
         Elkington filed a reply to the Preliminary Objections, maintaining that there
is no sentencing order in existence to support the Department’s position; thus, the
deductions were not permissible under Act 84 because they were not court-ordered.
         In its brief in support of the Preliminary Objections, the Department argues
that it is required to assess these costs against Elkington under Section 9728(b)(5)
after the trial court imposes the costs and the county clerk calculates the amount. In
the Department’s view, the Sentencing Sheets with the pre-printed box around the
word “Costs,” and the DC-300B Commitment Form reporting an amount of court
costs on page one demonstrate that the trial court did not waive court costs.

         4
         The final page of the Sentencing Sheet has unused portions of the form for additional
counts that confirm the box appearing around the word “Costs” is pre-printed on the form.
(Preliminary Objections, Ex. A.)


                                              4
Although the Department asserts in its Preliminary Objections that the costs were
imposed pursuant to Section 9721(c.1), which requires that a defendant pay costs
even where the sentencing “court fails to issue an order for costs,” the Department
does not develop this argument in its brief. 42 Pa. C.S. § 9721(c.1). The Department
asks this Court to dismiss Elkington’s Petition.
      Elkington responds that he has asserted a claim upon which relief can be
granted for the Department’s unlawful deduction of costs from his inmate account.
According to Elkington, there is no valid sentencing order or transcript of the
sentencing hearing to support the Department’s position, and the Sentencing Sheets
and DC-300B Commitment Form likewise do not establish that the trial court
imposed costs in his case. Although acknowledging that the Department has the
authority to collect court-ordered costs under Act 84, Elkington argues that the trial
court did not order these costs. Rather, Elkington asserts that the trial court explicitly
stated otherwise during the sentencing hearing. Citing to Saxberg v. Pennsylvania
Department of Corrections, 42 A.3d 1210 (Pa. Cmwlth. 2012), Elkington argues that
the Sentencing Sheets with the printed box around the word “costs” do not suffice
as evidence that the trial court imposed costs, particularly because the box is pre-
printed on the form. Further, Elkington contends that the handwritten total amount
of costs appearing on the Sentencing Sheets was added after the trial court judge and
the deputy clerk signed them. With regard to the DC-300B Commitment Form,
Elkington contends that this Court has only found that form to be sufficient evidence
of the imposition of costs where the inmate did not dispute that the trial court had
imposed the costs. (Elkington’s Brief at 4 (citing Boyd v. Pa. Dep’t of Corr., 831
A.2d 779 (Pa. Cmwlth. 2003)).) Elkington requests that this Court overrule the
Preliminary Objections.



                                            5
       Initially, we begin with the relevant statutory sections governing a sentencing
court’s imposition of costs and the Department’s authority to collect costs. Section
9728(b)(5) provides in relevant part that “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 [S]ection 9721(c.1).”5 42 Pa. C.S. § 9728(b)(5). Section 9721(c.1)
provides that

       [n]otwithstanding the provisions of Section 9728 . . . the [sentencing]
       court shall order the defendant to pay costs. In the event the
       [sentencing] court fails to issue an order for costs pursuant to section
       9728, costs shall be imposed upon the defendant under this section. No
       court order shall be necessary for the defendant to incur liability for
       costs under this section.

42 Pa. C.S. § 9721(c.1). Therefore, the Department is authorized to collect costs
under Section 9728(b)(5), and it may collect costs even in the absence of a court
order affirmatively requiring as much pursuant to Section 9721(c.1). However,
Section 9721(c.1) became effective on December 27, 2010, and Elkington was
sentenced on December 16, 2010; thus, that section may not be used to justify the
Department’s collection of costs. Rega v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 244
M.D. 2017, filed Jan. 31, 2018).6 As this Court concluded in Rega, in which we
considered preliminary objections filed by the Department similar to those filed here,
the Department “cannot rely upon Section 9721(c.1) to excuse the absence of a court
order” for a defendant sentenced prior to enactment of Section 9721(c.1) “because
such application would constitute an ex post facto law.” Rega, slip op. at 7-8. We

       5
         The portion of Section 9728(b)(5) referencing costs imposed under Section 9721(c.1.)
was added in 2010, at the time that Section 9721(c.1) was added to the Sentencing Code.
       6
         Rega, 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).


                                                6
reasoned that the provision was penal in nature because it imposed greater
punishment on those defendants sentenced prior to Section 9721(c.1) by authorizing
the collection of costs beyond those that are court-ordered. Id. at 8. Further, we
noted in Rega that the Department’s own policy recognizes this limitation, as that
policy provides that “for inmates sentenced prior to December 26, 2010, court costs
are not collectible unless they were specifically ordered by the court.” Id. at 8 n.9
(citing DC-ADM 005 § 3(A)(2)(b)(2)(a)) (emphasis added)). Because we were
required to accept the petitioner’s “averment that the cost and fees were not court-
ordered as true” and the matter arose prior to the enactment of Section 9721(c.1), we
overruled the preliminary objection. Id. at 9. Our reasoning in Rega is persuasive
here. Thus, to the extent the Department relies upon Section 9721(c.1) to justify its
collection of costs, we disagree that this provision supports the Department’s
demurrer. Because Elkington was sentenced prior to the effective date of Section
9721(c.1), the Department’s authority to deduct costs from Elkington’s inmate
account is governed by the remaining provisions of Section 9728(b)(5).
      Accordingly, we turn to Section 9728(b)(5) to determine whether that
provision, as the Department argues, grants it the authority to deduct the costs from
Elkington’s inmate account and precludes Elkington from stating a claim upon
which relief may be granted. Section 9728(b)(5) states that the Department may
deduct income for “court-ordered obligation[s] or costs.” 42 Pa. C.S. § 9728(b)(5).
The Department contends that it is authorized to deduct the costs in this case by the
Sentencing Sheets and DC-300B Commitment Form and, therefore, Elkington’s
Petition should be dismissed. Elkington responds that the Sentencing Sheets and
DC-300B Commitment Form cannot take the place of a valid sentencing order,
particularly where no such sentencing order or transcript of the sentencing hearing



                                         7
exists to support the imposition of costs. Elkington asserts that the costs being
deducted were never court-ordered.
      On the face of the Petition, we cannot definitively say at this early stage that
the costs were court-ordered and Elkington has not stated a claim. This case is
similar to our decision in Spotz v. Commonwealth, wherein we overruled the
Department’s preliminary objections to a petitioner’s challenge to the deduction of
funds from his account. 972 A.2d 125 (Pa. Cmwlth. 2009). The petitioner in Spotz
challenged the Department’s Act 84 deductions and asserted in his petition for
review that there was no court order imposing the costs that were being deducted by
the Department. The Department filed preliminary objections, relying upon its
authority under Section 9728(b) and arguing that the petitioner’s DC-300B
commitment form could be used to establish a sentencing court’s order for costs. Id.
at 130-31. This Court overruled the Department’s preliminary objections. While
acknowledging that this Court had concluded in Boyd, 831 A.2d at 783 n.6, that a
DC-300B commitment form was sufficient evidence of court-ordered costs in that
case, we distinguished Boyd because the petitioner there did not dispute that the costs
had been court-ordered. Spotz, 972 A.2d at 131. Further, we explained that any
costs that were not statutorily required could be imposed only at the discretion of the
sentencing court under Section 9728; thus a court order was required before the
Department could collect them. Spotz, 972 A.2d at 133. In so holding, we adopted
the Superior Court’s analysis of Act 84 set forth in Commonwealth v. LeBar, 860
A.2d 1105 (Pa. Super. 2004), wherein that court held that, pursuant to Section
9728(b)(5), court-ordered waivable costs can only be deducted pursuant to a court
order, but nonwaivable statutorily mandated costs can be deducted without a court
order. Spotz, 972 A.2d at 134.



                                          8
      Following Spotz, we again overruled preliminary objections filed by the
Department in Saxberg. The petitioner in Saxberg challenged the Department’s
deduction of costs from his inmate account, asserting that these costs were not court-
ordered and appeared only on a Department sentence status summary form.
Saxberg, 42 A.3d at 1212. Like Elkington, the petitioner in Saxberg argued that in
the absence of a sentencing order or a statement during a sentencing hearing
imposing costs, the Department was not authorized to make the deductions. Id. The
Department filed preliminary objections on various grounds, including a demurrer,
arguing that the deductions were authorized under Act 84. Further, the Department
argued that a court order signed by the sentencing judge with the pre-printed word
“costs” appearing on it demonstrated that costs were court-ordered. Id. at 1213.
Looking to the language of Section 9728(b)(5) and relying upon Spotz and LeBar,
we reiterated that the Department could only collect court-ordered costs and
concluded it was unclear at this procedural stage whether the costs in dispute were
court-ordered. Saxberg, 42 A.3d at 1214-15. We included in our opinion the pre-
printed sentencing order form that had been filled in by hand, which included the
word “Costs,” but lacked any further markings. Id. at 1215. Therefore, in order for
the Department to prevail on preliminary objections, it had to be clear that the costs
at issue were court-ordered. We held it was not. “On the record before us, and
without more,” we concluded, “this [C]ourt cannot determine whether the presence
of the pre-printed word ‘Costs,’ absent markings to strike the word, suffices to
impose the payment burden or whether some additional mark must be made by the
sentencing court to indicate affirmatively that costs are imposed.” Id. at 1216. Given
this, and that the petitioner averred that costs were not orally imposed during the
sentencing hearing, we overruled the Department’s preliminary objections on this



                                          9
point, as we could not “determine with certainty at this point that [petitioner] will
not prevail under the law.” Id.
      As in Spotz and Saxberg, we are constrained to overrule the Department’s
Preliminary Objections here.      Elkington asserts that the costs for which the
Department deducted income were not court-ordered, neither in a sentencing order
nor during his sentencing hearing. The Department’s evidence to the contrary are
the Sentencing Sheets with a pre-printed box around the word “costs” and the DC-
300B Commitment Form. However, in accordance with Saxberg, the pre-printed
box around costs, without any further markings, cannot suffice at this procedural
stage as conclusive evidence that costs were court-ordered.             Further, the
Department’s reliance upon the DC-300B Commitment Form is insufficient on
preliminary objections to establish the existence of court-ordered costs where
Elkington disputes that such costs were ever ordered by the trial court in the first
place. Spotz, 972 A.2d at 131. While the Department asserts that the Sentencing
Sheets and DC-300B Commitment Form do not show that the trial court waived the
costs, the question before us is not whether the trial court waived the costs but
whether the payment of costs was ever ordered by the trial court. It is unclear from
the Petition whether the costs in question were court-ordered, and the Department’s
authority to deduct the costs from Elkington’s inmate account is dependent upon
whether the payment of those costs was, in fact, court-ordered. As a result, we
cannot “determine with certainty at this point that [Elkington] will not prevail under
the law.” Saxberg, 42 A.3d at 1216.




                                         10
      Because we must resolve any doubt by refusing to sustain the demurrer,
Oakman, 893 A.2d 836 n.7, we must overrule the Department’s Preliminary
Objections and order the Department to file an answer to Elkington’s Petition.


                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Geoffrey Elkington,                        :
                          Petitioner       :
                                           :
                    v.                     :   No. 478 M.D. 2018
                                           :
Department of Corrections,                 :
                        Respondent         :


                                       ORDER
      NOW, June 3, 2019, the Preliminary Objections of the Department of
Corrections (Department) are OVERRULED. The Department is directed to file
an answer in this matter within thirty (30) days of the date of this Order.



                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
