          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Cory Stephen Lambing,                      :
                Petitioner                 :
                                           :
          v.                               :
                                           :
Pennsylvania Department                    :
of Corrections,                            :   No. 488 M.D. 2017
                 Respondent                :   Submitted: January 17, 2020


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                        FILED: July 23, 2020

               Before this Court in our original jurisdiction are the cross-motions for
summary relief in the nature of motions for judgment on the pleadings filed by
Petitioner, Cory Stephen Lambing (Lambing), and Respondent, the Department of
Corrections (Department). For the reasons that follow, we grant Lambing’s motion
for summary relief, in part, deny the Department’s cross-motion for summary relief,
and enjoin the Department from deducting funds from Lambing’s inmate account
until his release from incarceration in accordance with the following opinion.
               In January and March of 2008, Lambing was convicted of attempted
theft, theft by deception, theft by unlawful taking, and forgery and was sentenced to
20 to 48 months’ imprisonment. Petition for Review at 3, ¶ 2 & Exhibit C,
Sentencing Orders. Lambing avers that he was ordered to pay fines, costs and
restitution totaling $6,314.85. Petition for Review at 3, ¶ 2 & Exhibit C, Sentencing
Orders. Lambing attached seven sentencing orders to his petition for review, three
of which are dated January 25, 2008, and four of which are dated March 17, 2008.
One of the January 25, 2008 orders and three of the March 17, 2008 orders impose
fines, costs and restitution, but only the March 17, 2008 orders contain the following
disputed language:


               The defendant shall pay the total due in monthly
               installments during the period of parole in accordance
               with a payment schedule set by the Fayette County Clerk
               of Courts. In addition, the defendant will abide by all of
               the usual terms and conditions of parole.

Petition for Review, Exhibit C, Sentencing Orders (emphasis added).1
               The Department began deducting money from Lambing’s inmate
account at least as early as November 12, 2008. See Petition for Review, Exhibit G,
Payment Summary. Lambing further avers he was granted parole after 20 months’
imprisonment, but was subsequently reincarcerated due to a technical parole
violation and served the remainder of his prison sentence. See Lambing’s Brief in
Opposition to Department’s Preliminary Objection at 4. Lambing is currently
incarcerated at the State Correctional Institution at Forest due to a separate
conviction. Petition for Review at 2, ¶ 1 & Certificate of Service. On May 30, 2017,
the Department notified Lambing that it would again “begin deducting money” from
his inmate account. Petition for Review at 4, ¶ 14; Department Answer and New
Matter at 3, ¶ 20. After receiving this notice, Lambing filed a grievance through the
Inmate Grievance System challenging the Department’s deduction of monies from

       1
          Lambing only provided the first page of the January 25, 2008 order, which does not
include the language above, although it is evident that subsequent pages are missing. See Petition
for Review, Exhibit C, Sentencing Orders.

                                                2
his inmate account. Petition for Review at 5, ¶ 15; see also Exhibit E, Final Appeal
Decision. Lambing appealed the grievance officer’s response to the facility manager
and then submitted an appeal for final review. Id. On September 18, 2017, the
Office of Inmate Grievances & Appeals of the Secretary of Corrections issued a
“Final Appeal Decision” rejecting Lambing’s challenge. See Petition for Review,
Exhibit E, Final Appeal Decision.
             On October 20, 2017, Lambing filed a petition for review in this Court’s
original jurisdiction, requesting that we direct the Department to cease deducting
funds from his inmate account to pay court-ordered fines, costs and restitution. The
Department filed a preliminary objection in the nature of a demurrer, and Lambing
filed an answer thereto. On December 19, 2018, this Court issued a memorandum
opinion and order sustaining in part and overruling in part the Department’s
preliminary objection in the nature of a demurrer. See Lambing v. Dep’t of Corr.
(Pa. Cmwlth., No. 488 M.D. 2017, filed Dec. 19, 2018). Specifically, we sustained
the Department’s demurrer to Lambing’s claims that he was entitled to a hearing to
assess his ability to pay and that the Department should have obtained a separate
order authorizing the deduction of funds from his inmate account, but overruled the
Department’s demurrer to Lambing’s claim that the sentencing orders delayed
payment fines, costs and restitution until the period of parole. Lambing, slip op. at
4-7.
             On January 10, 2019, the Department filed an application to amend this
Court’s December 19, 2018 order pursuant to Section 702(b) of the Judicial Code,
42 Pa.C.S. § 702(b), in order to permit an interlocutory appeal therefrom, which we
denied. Also on January 10, 2019, the Department filed an answer and new matter
in response to Lambing’s petition for review. The Department raised the affirmative

                                         3
defense of sovereign immunity, contending that the deductions to Lambing’s
account constituted the intentional taking of property in the scope of the
Department’s duties and, therefore, did not fall under any exception to sovereign
immunity in Section 8522(b) of the Judicial Code, 42 Pa.C.S. § 8522(b).
Department’s Answer and New Matter at 4, ¶ 27 (citing Dep’t of Corr. v. Tate, 133
A.3d 350, 359-60 (Pa. Cmwlth. 2016)). The Department also asserted that “[t]o the
extent [Lambing’s] claims are construed as invoking federal rights, [the Department]
is insulated by qualified immunity.”2 Id. at 4, ¶ 35. Further, the Department
maintained that Lambing would be unjustly enriched if the Court were to order
reimbursement for the deducted funds, as Lambing already received credit for the
deducted funds towards his outstanding court costs. Id. at 4, ¶ 31. The Department
demanded a jury trial on all triable issues. Id. at 4, ¶ 36.
               On February 5, 2019, Lambing filed a reply to the Department’s answer
and new matter. Lambing stated that “[p]aragraph 27 in [the Department’s] New
Matter,” in which the Department asserted that Lambing’s claim does not fall under
any exception to sovereign immunity under Section 8522(b) of the Judicial Code,
“is [a]dmitted,” and further conceded that “[he] is not bringing his claim under that
statute for it is not cognizable to this matter at law.” Lambing’s Reply at 4, ¶ 8
(emphasis in original). Lambing also asserted that he is not presenting this claim
under a tort statute. Id. at 7, ¶ 17. Lambing stated that he “does not deny” that “the
conduct that occurred is not any that falls within the exception[s] to sovereign
immunity in [42 Pa.C.S. § 8522(b).]” Id. at 7, ¶ 17; see also id. at 9, ¶ 22. Lambing

       2
         We note that Lambing asks this Court to enjoin the Department from deducting funds
from his inmate account, and sovereign immunity does not bar suits seeking prohibitory
injunctions to restrain state action. Stackhouse v. Pa. State Police, 892 A.2d 54, 61 (Pa. Cmwlth.
2006).

                                                4
further contended that his claim is not barred by any applicable statute of limitations.
Id. at 7, ¶ 17. Despite acknowledging that he initially only sought to halt further
deductions from his inmate account, Lambing proposed a settlement of $200 to
compensate for litigation costs. Id. at 17, ¶ 51. On February 13, 2019, Lambing
filed a praecipe for entry of judgment upon admission, which this Court struck as
unauthorized. See Praecipe for Entry of Judgment, 2/13/19; Cmwlth. Ct. Order,
3/11/19.
             On August 6, 2019, Lambing filed a motion for summary relief,
asserting that “[t]here is no genuine issue of fact as to whether [the] [s]entencing
[o]rder was [a]mbiguous and [that] as a result the deductions should not have
occurred [sic].” Lambing’s Motion for Summary Relief at 5, ¶ 26. The Department
filed an answer thereto on August 20, 2019. On the same date, the Department filed
a cross-motion for summary relief, contending that “[t]his Court should rule that in
cases where there is no question that an inmate owes restitution, fines or costs, the
[Department’s] statutory authority to collect the money under [Section 9728(b) of
the Sentencing Code, 42 Pa.C.S. § 9728(b), commonly known as] Act 84[,] exists
unless it is expressly and clearly overridden by the sentencing [c]ourt.”
Department’s Cross-Motion for Summary Relief at 2, ¶ 5 (emphasis in original).
The Department asserts that, “[e]ven if [it] improperly collected the money, the
deductions to [Lambing’s] account were an intentional taking of property in the
scope of [the Department’s] duties that is not conduct that falls within any exception
to sovereign immunity in 42 Pa.C.S. § 8522(b).” Id. at 3, ¶ 6 (citing Tate, 133 A.3d
at 359-60; Morgalo v. Gorniak, 134 A.3d 1139, 1147 n.10 (Pa. Cmwlth. 2016)).
             On August 30, 2019, Lambing filed an answer to the Department’s
cross-motion for summary relief, reiterating his contention that the sentencing orders

                                           5
delay payment of monies due until his period of parole. Answer at 2, ¶ 3. Despite
his previous concession, Lambing contends in this answer that his claim falls under
the exception to sovereign immunity contained in Section 8522(b)(3) of the Judicial
Code, which waives sovereign immunity from claims for damages caused by “[t]he
care, custody or control of personal property in the possession or control of
Commonwealth parties, including Commonwealth-owned personal property and
property of persons held by a Commonwealth agency[.]” Id. at 2-3, ¶ 5 (citing 42
Pa.C.S. § 8522(b)(3)). Lambing requests reimbursement for the monies deducted
by the Department and for costs incurred pursuing this litigation. Id. at 3-4, ¶¶ 4 &
6.
             Lambing also filed a brief in support of his motion for summary relief
in which he reiterates his request that this Court enjoin the Department from making
any further deductions from his inmate account and also his request for
reimbursement both for monies already deducted and for litigation costs, contending
that the “sentencing orders control and it [is] clear that [the] sentencing orders [do]
not provided [sic] unlimited authority to collect such costs in this matter while [he]
[is] incarcerated and under the authority of the Department[.]” Lambing’s Brief at
6-7 & 10-11.
             The Department filed a brief in opposition to Lambing’s motion for
summary relief and in support of its cross-motion for summary relief, arguing that
its statutory authority to collect money under Act 84 exists unless expressly and
clearly overridden by the sentencing court.        Department’s Brief at 8.       The
Department contends that “[i]t is well-established that [it] possesses statutory
authority to make the deductions to satisfy [c]ourt-[o]rdered fines, costs, and
restitution under [Act 84],” and that “[n]o express judicial order directing deductions

                                          6
is necessary.” Id. (citing Boyd v. Pa. Dep’t of Corr., 831 A.2d 779, 783 (Pa. Cmwlth.
2003)). The Department asserts that when the language of a sentencing order is
ambiguous, “the presumption should be that the sentencing court did not intend to
delay the payments, and the burden should be on the inmate to seek clarification of
the sentencing order.” Id. at 8-9. The Department maintains that “[n]either party
will be able to offer additional extrinsic evidence at trial to clear up the interpretation
of a sentencing order which this Court has already held is ambiguous as to when
payments are due.” Id. at 9. Thus, the Department contends that no potential issues
of fact remain, such that “a trial would be a fruitless exercise.” Id.
              The Department acknowledges that its current policy regarding the
collection of inmate debts provides that “the Business Manager/designee shall
determine if the order that imposes financial obligations on the inmate defers the
payment of those obligations to a later date or event,” and that, “[i]f so, collection of
costs as a result of that court order must not begin until the date or event indicated
in the court order.” Id. at 10 n.1 (quoting DC-ADM 005, Collection of Inmate Debts
Procedures Manual (DC-ADM 005), Section 3.A.2.a.).3                  The Department also
indicates that notice provided to inmates regarding grievance procedures instructs
that they may file a grievance on the basis that “[t]he financial obligations are not
currently due under the terms of the court order” or “[a] more recent court order
removed or postponed the financial obligations[.]” Id. (quoting DC-ADM 005,
Attachment 3-A). The Department further acknowledges that the burden of seeking
clarification rests with the Department, but contends that this “is neither legally


       3
        The Department’s policy manual regarding the collection of inmate debts is available on
the Department’s website at the following address, https://www.cor.pa.gov/About%20Us/Docume
nts/DOC%20Policies/005%20Collection%20of%20Inmate%20Debts.pdf (last visited July 22,
2020).
                                              7
possible nor justified,” as inmates, rather than the Department, have standing to
petition the sentencing court for clarification. Id. at 11 (citing Morgalo, 134 A.3d at
1147 n.10). The Department also notes that Lambing already appeared before the
sentencing court, which concluded that Lambing “present[ed] no meritorious
argument suggesting that the restitution and fines were improperly assessed or
collected.” Id. at 13 (citing Petition for Review, Exhibit D, Trial Court Order). The
Department further asserts that even if its deductions were improper, it enjoys
sovereign immunity with respect to Lambing’s claim for reimbursement. Id. (citing
Tate, 133 A.3d at 359-60; Morgalo 134 A.3d at 1147 n.11).
             Any party may move for summary relief at any time after the filing of
a petition for review. Pa.R.A.P. 1532(b). “A motion for judgment on the pleadings
is in the nature of a demurrer in which all of the nonmovant’s well-pleaded
allegations are viewed as true, but only those facts specifically admitted by the
nonmovant may be considered against him.” Simon v. Cmwlth., 659 A.2d 631, 634
(Pa. Cmwlth. 1995). “Such a motion will summarily dispose of the case only where
there exists no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” Pa. State Ass’n of Twp. Supervisors v. Dep’t of Gen.
Servs., 666 A.2d 1153, 1156 (Pa. Cmwlth. 1995), aff’d, 689 A.2d 224 (Pa. 1997).
“It is fundamental that a judgment on the pleadings should not be entered where
there are unknown or disputed issues of fact.” Del Quadro v. City of Phila., 437
A.2d 1262, 1263 (Pa. Super. 1981) (citing N. Star Coal Co. v. Waverly Oil Works
Co., 288 A.2d 768 (Pa. 1972)). Thus, a motion for judgment on the pleadings will
only be granted where, on the facts averred, the law says with certainty that no
recovery is possible. Ins. Fed’n of Pa., Inc. v. Ins. Dep’t, 970 A.2d 1108, 1113-14
(Pa. 2009); see also Simon, 659 A.2d at 634 (stating that a motion for judgment on

                                          8
the pleadings should only be granted where “the law is so clear that a trial would be
a fruitless exercise”). In ruling on a motion for judgment on the pleadings, the court
may consider only the pleadings themselves and any documents properly attached
thereto. Simon, 659 A.2d at 634; see also Del Quadro, 437 A.2d at 1263 (stating,
“[i]t is clear that the briefs of the parties are not pleadings”).
               Here, the Department asserts that it is entitled to summary relief, in part,
because the doctrine of sovereign immunity bars Lambing’s claim for
reimbursement. See Department’s Brief at 13. However, in his petition for review,
Lambing only requested that this Court enjoin further deductions from his inmate
account by the Department. Indeed, Lambing conceded as much in his reply to the
Department’s answer and new matter.4 Thus, Lambing’s request for reimbursement
of funds deducted by the Department is not properly before this Court. See Pa.R.A.P.
1513(e)(5) (providing that “[a] petition for review addressed to an appellate court’s
original jurisdiction shall contain . . . a short statement of the relief sought”).5
               The Department further contends that “[n]o express judicial order
directing deductions is necessary.” Department’s Brief at 8 (citing Boyd, 831 A.2d
at 783). In Boyd, the inmate “[did] not dispute that the sentencing court imposed
fines, costs and restitution upon him, but instead, only argue[d] that the Department


       4
          In the context of requesting reimbursement for litigation costs, Lambing stated that
“[w]hen [h]e first started this action all he wished for was for this Honorable Court to order [the
Department] to stop collecting his Act 84 [obligations] as he expressed himself and the Department
refused to do,” and that “this litigation has cost time a lot of time and income.” Lambing’s Reply
at 17, ¶ 51.
       5
           Lambing stated in his initial brief that “[t]he [petition] was filed seeking [i]njunctive
[r]elief along with a [r]eturn of all collected [f]unds from [his] [i]nmate [a]ccount that have been
previously garnished due to the statutory collection [under] [Act] 84[.]” Lambing’s Brief at 2.
Nevertheless, this request for a return of funds does not appear in Lambing’s petition for review.

                                                 9
may not deduct funds for such purposes without a court order authorizing the ‘act’
of deducting those funds[.]” Boyd, 831 A.2d at 783. In sustaining the Department’s
preliminary objections and dismissing the inmate’s mandamus petition, we held that
the Department need not obtain an additional court order separately authorizing the
deduction of funds towards payment of financial obligations imposed in a sentencing
order. See id. Although Lambing initially contended that the Department lacked an
order authorizing the deduction of funds, see Petition for Review at 5, ¶ 15, we
sustained the Department’s preliminary objection with regard to that argument. See
Lambing, slip op. at 3 (citing Boyd, 831 A.2d at 782-83). Unlike Boyd, Lambing
does not presently challenge the Department’s authority to collect obligations
imposed by a sentencing order, but rather the timing of the deductions. We,
therefore, note that Boyd does not advance the Department’s position.
               The Department also maintains that its “statutory authority to collect
the money under Act 84 exists unless it is expressly and clearly overridden by the
sentencing [c]ourt,” and that where, as here, any ambiguity exists, “the presumption
should be that the sentencing court did not intend to delay the payments.”
Department’s Brief at 8-9. Act 84 provides, in relevant part:


               The Department of Corrections shall make monetary
               deductions of at least 25% of deposits made to inmate
               wages and personal accounts for the purpose of collecting
               restitution, costs imposed under section 9721(c.1),[6] filing

      6
          Section 9721(c.1) of the Sentencing Code provides as follows:

               (c.1) Mandatory payment of costs.--Notwithstanding the
               provisions of section 9728 (relating to collection of restitution,
               reparation, fees, costs, fines and penalties) or any provision of law
               to the contrary, in addition to the alternatives set forth in subsection

                                                 10
              fees to be collected under section 6602(c) (relating to
              prisoner filing fees) and any other court-ordered
              obligation.

42 Pa.C.S. § 9728(b)(5)(i). We acknowledge that “[o]ur Courts have repeatedly held
that Section 9728(b)(5) of the Sentencing Code authorizes the Department to make
deductions from income deposited to an inmate’s account.” Danysh v. Dep’t of
Corr., 845 A.2d 260, 263 (Pa. Cmwlth. 2004), aff’d, 881 A.2d 1263 (Pa. 2005).
However, the question sub judice is not whether the Department may collect court-
ordered obligations under the terms of Lambing’s sentencing orders, but when. This
Court’s memorandum opinion issued on December 19, 2018, noted that the disputed
sentencing orders were ambiguous with respect to “whether payments are due only
‘during the period of parole’ following the term of incarceration for which the
sentencing orders provide, or following any period of incarceration.” Lambing, slip
op. at 6-7.
              Nevertheless, the three March 17, 2008 sentencing orders in question
expressly provide that “[t]he defendant shall pay the total due in monthly
installments during the period of parole in accordance with a payment schedule set
by the Fayette County Clerk of Courts.” See Petition for Review, Exhibit C,
Sentencing Orders. Black’s Law Dictionary defines “parole” as “[t]he conditional
release of a prisoner from imprisonment before the full sentence has been served,”

              (a), the court shall order the defendant to pay costs. In the event the
              court fails to issue an order for costs pursuant to [S]ection 9728,
              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. The provisions of this subsection do not
              alter the court’s discretion under Pa.R.Crim.P. No. 706(C) (relating
              to fines or costs).

42 Pa.C.S. § 9721(c.1).
                                               11
noting that “[t]he essence of parole is release from prison, before completion of the
sentence, on condition that the prisoner abide by certain rules during the balance of
the sentence.” Black’s Law Dictionary (11th ed. 2019) (citing 59 Am. Jur. 2d
Pardon and Parole § 6 (1987)). As “[t]he essence of parole is release from prison,”
we conclude, with respect to the three March 17, 2008 sentencing orders containing
the language noted above, that the Department’s assertion that it may deduct funds
from Lambing’s inmate account during his incarceration lacks merit in light of the
sentencing order’s express directive that Lambing “shall pay the total due in monthly
installments during the period of parole[.]” See id.; Petition for Review, Exhibit C,
Sentencing Orders.7 In light of the absence of such language in the January 25, 2008
sentencing order, we cannot reach the same conclusion with respect to that order.
               Moreover, as acknowledged by the Department, both its notice
provided to inmates regarding grievance procedures and its policy manual regarding
the collection of inmate debts recognize that a sentencing order may delay payment
of financial obligations imposed therein. See Department’s Brief at 10 n.1 (citing
DC-ADM 005, Section 3.A.2.a.; DC-ADM 005, Attachment 3-A). The relevant



       7
          The sentencing orders at issue broke down the costs payable by Lambing into court
ordered costs, such as the costs of prosecution, restitution, and costs for use of the law library, as
well as statutorily mandated costs, such as costs payable to the Crime Victims Compensation Fund,
and the Victim Witness Service Fund. Regarding the latter statutorily mandated costs, we note
that, notwithstanding our holding herein, the Department may deduct funds towards payment of
the sentencing order’s imposition of said costs during Lambing’s incarceration. See, e.g., Section
1101(e) of the Crime Victims Act (Act of Nov. 24, 1998, P.L. 882, No. 111), 18 P.S. § 11.1101(e)
(addressing Crime Victims Compensation Fund and Victim Witness Service Fund and providing
that “[n]o court order shall be necessary in order for the defendant to incur liability for costs under
this section. Costs under this [S]ection must be paid in order for the defendant to be eligible for
probation, parole or accelerated rehabilitative disposition.”); see also Spotz v. Commonwealth, 972
A.2d 125, 134 (Pa. Cmwlth. 2009) (noting that “non-waivable, statutorily mandated costs are
deductible absent any express court order”).

                                                 12
section of the Department’s policy manual regarding the collection of inmate debts
provides in full:

              If the Department is in possession of a court order or
              sentencing transcript, then the Business Manager/designee
              shall determine if the order that imposes financial
              obligations on the inmate defers the payment of those
              obligations to a later date or event (“delay language”). If
              so, collection of costs as a result of that court order must
              not begin until the date or event indicated in the court
              order. In all such cases, the specific terms of the court
              order will control the collection. Questions concerning
              the terms of a court order shall be referred to the Act 84
              Coordinator.


DC-ADM 005, Section 3.A.2.a. (emphasis added).8 The Department’s policy is in
accord with established precedent, which indicates that the express terms of a
sentencing order govern payment of financial obligations imposed therein. For
instance, in Spotz v. Commonwealth, 972 A.2d 125 (Pa. Cmwlth. 2009), we held that
a common pleas clerk of courts and the Department only have authority to collect
such costs that have been “explicitly provided for in [a] party’s sentencing order.”
Spotz, 972 A.2d at 132 (citing Commonwealth v. LeBar, 860 A.2d 1105, 1110 (Pa.
Super. 2004)).
              Here, the March 17, 2008 sentencing court’s orders state that Lambing
“shall pay the total due in monthly installments during the period of parole[.]” See
Petition for Review, Exhibit C, Sentencing Orders. Thus, it is clear that the
sentencing court did not authorize the Department to make deductions for court-
ordered costs while Lambing is incarcerated.

       8
        As noted above, this regulation of the Department would not apply to the statutorily
mandated costs imposed by the sentencing court. See supra n.7.
                                            13
            Accordingly, we grant Lambing’s motion for summary relief only with
respect to the March 17, 2008 sentencing orders, deny Lambing’s motion for
summary relief with respect to the January 25, 2008 sentencing order, deny the
Department’s cross-motion for summary relief, and enjoin the Department from
deducting court-imposed fines, costs and restitution from Lambing’s inmate account
imposed by the March 17, 2008 sentencing orders until his release from
incarceration in accordance with the foregoing opinion.




                                        __________________________________
                                        CHRISTINE FIZZANO CANNON, Judge




                                        14
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Cory Stephen Lambing,                     :
                Petitioner                :
                                          :
           v.                             :
                                          :
Pennsylvania Department                   :
of Corrections,                           :   No. 488 M.D. 2017
                 Respondent               :


                                      ORDER


                AND NOW, this 23rd day of July, 2020, the motion for summary relief
filed by Cory Stephen Lambing (Lambing) is GRANTED, in part, the cross-motion
for summary relief filed by the Department of Corrections (Department) is DENIED,
and the Department is hereby enjoined from deducting funds from Lambing’s inmate
account until his release from incarceration in accordance with the foregoing
opinion.




                                          __________________________________
                                          CHRISTINE FIZZANO CANNON, Judge
