J.P. Guarrasi v. County of Bucks ( 2018 )


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  •               IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Joseph P. Guarrasi,                       :
    Petitioner             :
    :    No. 176 M.D. 2018
    v.                           :
    :    Submitted: July 20, 2018
    County of Bucks; Bucks County             :
    Sheriff’s Department; Clerk of            :
    Courts of Bucks County,                   :
    Respondents             :
    BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE JAMES GARDNER COLINS, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE McCULLOUGH                                   FILED: September 14, 2018
    Before the Court in our original jurisdiction are the preliminary objections
    filed by the County of Bucks, Bucks County Sheriff’s Department, and the Clerk of
    Courts of Bucks County (collectively, Respondents) to the petition for review (Petition)
    filed by Joseph P. Guarrasi (Petitioner). Petitioner has filed preliminary objections to
    Respondents’ preliminary objections.          We overrule Respondents’ preliminary
    objections and dismiss Petitioner’s objections as moot.
    On March 15, 2018, Petitioner, a former attorney, filed the Petition and
    averred as follows. On March 28, 2005, upon entering guilty pleas to various crimes
    for orchestrating an insurance scam and arranging a contract killing (the murder did
    not occur) so that he could open a “Kama Sutra” sex club, a trial court sentenced
    Petitioner to 6 and ½ to 15 years’ imprisonment.1 Petitioner filed a petition under the
    Post Conviction Relief Act (PCRA)2 on June 29, 2007, and the trial court granted him
    in forma pauperis (IFP) status per Pa.R.C.P. No. 240 for purposes of the PCRA
    proceedings. The PCRA proceedings experienced delays and lasted from 2007 to
    2015, and, during this time, Petitioner was transported from the prison to the
    courthouse on multiple occasions. Subsequently, Respondent Sheriff’s Department
    issued Petitioner bills reflecting transportation costs totaling $3,533.60 for 12 trips.
    Petitioner inquired into the matter, and Respondent Clerk of Courts informed him that
    the fees were not imposed pursuant to a sentencing order, or any court order. Instead,
    the costs were assessed under the “transportation costs” provision in section 9728(g)
    of the Sentencing Code,3 which was enacted and became effective on November 9,
    2006, after Petitioner’s judgment of sentence. Petitioner then contacted personnel from
    the trial court, who informed Petitioner that he could not challenge the transportation
    costs under the PCRA because any such petition could not meet an exception to the
    one-year limitations period. (Pet. ¶¶5-25.)
    1
    Petitioner does not include facts in the Petition related to his criminal conduct and sentence.
    These facts are taken from the decision of the Superior Court denying Petitioner post-conviction
    relief. See Commonwealth v. Guarrasi (Pa. Super., No. 3514 EDA 2015, filed November 15, 2016)
    (unreported), slip op. at 1-2.
    2
    42 Pa.C.S. §§9541-9546.
    3
    Amended by section 1 of the Act of November 9, 2006, P.L. 1352, 42 Pa.C.S. §9728(g)
    (“Any sheriff’s costs, filing fees and costs of the county probation department, clerk of courts or other
    appropriate governmental agency, including, but not limited to, any reasonable administrative costs
    associated with the collection of restitution, transportation costs and other costs associated with the
    prosecution, shall be borne by the defendant and shall be collected by the county probation department
    or other appropriate governmental agency along with the total amount of the judgment and remitted
    to the appropriate agencies at the time of or prior to satisfaction of judgment.”) (emphasis added).
    2
    Based on these averments, Petitioner asserts that the applicable portion of
    section 9728(g) of the Sentencing Code was enacted after he was sentenced and that
    there were no court orders authorizing the imposition of transportation costs in the
    interim; therefore, section 9728(g), as applied, constitutes an impermissible retroactive
    law under the Ex Post Facto Clause of the Pennsylvania Constitution.4 Petitioner
    further contends, in the alternative, that the bills for transportation costs should be
    stricken because they run contrary to the IFP status he obtained during the PCRA
    proceeding and also equitable principles. For relief, Petitioner requests an order
    enjoining Respondents from collecting transportation costs incurred in connection with
    the PCRA proceedings, a declaration stating that section 9728(g) of the Sentencing
    Code violates the Ex Post Facto Clause, and an order that strikes and/or vacates the
    transportation costs as being imposed in contravention of the law. (Pet. ¶26, Wherefore
    Clause.)
    On April 20, 2018, Respondent Clerk of Courts filed preliminary
    objections. Respondent Clerk of Courts argues that the Petition should be dismissed
    (1) for lack of subject matter jurisdiction because the matter falls under the PCRA and
    original jurisdiction under the PCRA resides in the court of common pleas, and (2) as
    barred by the statute of limitations because the costs were imposed for transportation
    services that occurred more than one year prior to the date on which the Petition was
    filed.
    On June 1, 2018, Respondent Sheriff’s Department filed preliminary
    objections.    Respondent Sheriff’s Department asserts that the Petition should be
    dismissed (1) under the governmental immunity provisions of sections 8541 and 8542
    4
    Pa. Const. art. I, §17 (“No ex post facto law, nor any law impairing the obligation of
    contracts, or making irrevocable any grant of special privileges or immunities, shall be passed.”).
    3
    of the Judicial Code,5 (2) as barred by the statute of limitations, and (3) for failing to
    state a claim on the ground that Petitioner had received $35,000.00 from a settlement
    agreement with his malpractice insurance carrier, and Pa.R.C.P. No. 240(g)6 authorized
    collection of the costs from this sum. With respect to the first preliminary objection,
    Respondent Sheriff’s Department referenced and attached a copy of the transportation
    bills which itemize the expenses for 12 trips from January 2008 to October 2013. With
    respect to the third preliminary objection, Respondent Sheriff’s Department referenced
    and attached a copy of Petitioner’s civil complaint against an attorney and the
    settlement agreement.
    With their preliminary objections, Respondents filed memoranda of law
    in support of their positions.
    Petitioner, in turn, filed replies to Respondents’ preliminary objections.
    On June 14, 2018, Petitioner filed preliminary objections to Respondents’ preliminary
    objections. He filed a brief in support on June 20, 2018.
    Discussion
    In ruling on preliminary objections, the Court must accept as true all well-
    pleaded material facts and all inferences reasonably deducible therefrom. Barndt v.
    Pennsylvania Department of Corrections, 
    902 A.2d 589
    , 592 (Pa. Cmwlth. 2006).
    However, the Court is not required to accept as true legal conclusions, unwarranted
    factual inferences, argumentative allegations, or expressions of opinion. Armstrong
    5
    42 Pa.C.S. §§8541-8542.
    6
    Pa.R.C.P. No. 240(g) (“If there is a monetary recovery by judgment or settlement in favor
    of the party permitted to proceed [IFP], the exonerated fees and costs shall be taxed as costs and paid
    to the prothonotary by the party paying the monetary recovery. In no event shall the exonerated fees
    and costs be paid to the indigent party.”).
    4
    County Memorial Hospital v. Department of Public Welfare, 
    67 A.3d 160
    , 170 (Pa.
    Cmwlth. 2013) (en banc).
    By way of background, the General Assembly amended section 9728 of
    the Sentencing Code in late 2006, apparently in response to Fordyce v. Clerk of Courts,
    
    869 A.2d 1049
    (Pa. Cmwlth. 2005), to expressly include “transportation costs” as a
    recoverable expense for the “costs of prosecution.”                   See 42 Pa.C.S. §9728(g);
    Commonwealth v. Morales-Rivera, 
    67 A.3d 1290
    , 1292-94 (Pa. Cmwlth. 2013). In
    2010, the General Assembly added sections to the Sentencing Code providing that a
    defendant is liable for all enumerated statutory costs, including transportation costs,
    and permitting the government to collect the costs, even in the absence of a court order
    imposing them upon a defendant. See 42 Pa.C.S. §9721(c.1),7 see also 42 Pa.C.S.
    §9728(b.2).8
    Here, Petitioner avers that Respondents have billed him for transportation
    costs, without an authorizing court order, pursuant to section 9728(g) of the Sentencing
    Code, and he correctly observes that this subsection of the statute was enacted
    subsequent to his judgment of sentence entered on March 25, 2005. On these facts,
    Petitioner has set forth a plausible claim that Respondents are attempting to utilize
    section 9728(g)—as well as section 9721(c.1)—retroactively and in a manner that runs
    7
    Added by section 2 of the Act of October 27, 2010, P.L. 949 (“In the event the court fails to
    issue an order for costs pursuant to section 9728, costs shall be imposed upon the petitioner under this
    section. No court order shall be necessary for the petitioner 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. []
    706(C) (relating to fines or costs).”).
    8
    Added by section 2 of the Act of October 27, 2010, P.L. 949 (“Notwithstanding any
    provision of law to the contrary, in the event the court fails to issue an order under subsection (a)
    imposing costs upon the defendant, the defendant shall nevertheless be liable for costs, as provided
    in section 9721(c.1) . . . . The absence of a court order shall not affect the applicability of the
    provisions of this section.”).
    5
    afoul of the Ex Post Facto Clause. See Commonwealth v. Allshouse, 
    924 A.2d 1215
    ,
    1230 (Pa. Super. 2007), aff’d, 
    985 A.2d 847
    (Pa. 2009) (addressing the issue of
    “whether the amended version of [section] 9728(g) can be applied retroactively to
    uphold the trial court’s award of transportation costs” and concluding that the “penal
    statute” cannot be applied retroactively “as such application would constitute an ex post
    facto law.”); Rega v. Pennsylvania Department of Corrections (Pa. Cmwlth., No. 244
    M.D. 2017, filed January 31, 2018) (unreported), slip op. at 7-8 (“Respondents cannot
    rely on Section 9721(c.1) to excuse the absence of a court order because such
    application would constitute an ex post facto law.”).9 That said, the Court addresses
    Respondents’ preliminary objections in this order: lack of subject matter jurisdiction,
    governmental immunity, the statute of limitations, and, finally, Pa.R.C.P. No. 240(g).
    Subject Matter Jurisdiction
    While the PCRA is designed to provide the exclusive remedy for those
    individuals who are “serving unlawful sentences,” 42 Pa.C.S. §9542, the statutory
    scheme “contemplates only challenges to the propriety of a conviction or a sentence.”
    Commonwealth v. Masker, 
    34 A.3d 841
    , 843 (Pa. Super. 2011) (en banc). In Saxberg
    v. Pennsylvania Department of Corrections, 
    42 A.3d 1210
    (Pa. Cmwlth. 2012), an
    inmate filed a petition for review in this Court asserting that the trial court did not
    impose costs at the sentencing hearing or in its written sentencing order and contended
    that, without such an express directive, the defendant could not make deductions from
    his account under section 9728(b)(5) of the Sentencing Code. We concluded that the
    petition for review was “properly before us in our original jurisdiction” and rejected
    the defendant’s argument that the action should have been commenced under the
    9
    We cite Rega for its persuasive value. See Section 414(a) of the Commonwealth Court’s
    Internal Operating Procedures, 210 Pa. Code §69.414(a).
    6
    PCRA, reasoning that the petition did not constitute “an illegal or improper attack on
    the underlying sentencing order.” 
    Saxberg, 42 A.3d at 1212
    . Our holding in Saxberg
    is controlling, and we overrule Respondents’ preliminary objection based on subject
    matter jurisdiction.
    Governmental Immunity
    In the Petition, Petitioner does not request money damages or an order
    requiring governmental officials to perform an affirmative act, such as returning
    property or money. Rather, Petitioner seeks declaratory and injunctive relief for an
    alleged constitutional violation.    Our courts have long held that governmental
    immunity cannot shield these types of claims. See E-Z Parks Inc. v. Larson, 
    498 A.2d 1364
    , 1370 (Pa. Cmwlth. 1985), aff’d, 
    503 A.2d 931
    (Pa. 1986) (noting that
    “governmental immunity under Section 8541 of the Judicial Code extends only to
    liability for damages” and determining that immunity does not apply to other forms of
    equitable relief that do not request damages (emphasis in original)); see also
    Wilkinsburg Police Officers Association v. Commonwealth of Pennsylvania, 
    636 A.2d 134
    , 137 (Pa. 1993) (concluding that “sovereign immunity poses no bar to the
    [plaintiff’s] prayer for injunctive relief” and the counts that “only seek a declaration
    that certain provisions of [a statute] are unconstitutional”); R.H.S. v. Allegheny County
    Department of Human Services, Office of Mental Health, 
    936 A.2d 1218
    , 1228 (Pa.
    Cmwlth. 2007) (holding that, notwithstanding governmental immunity, “[c]laims
    arising from violations of the Pennsylvania Constitution may still be raised against
    local governments”). We overrule Respondents’ preliminary objection asserting the
    defense of governmental immunity.
    7
    Statute of Limitations
    It is well-settled that “claims for equitable relief are not subject to statutes
    of limitations.” Lake v. Hankin Group, 
    79 A.3d 748
    , 756 (Pa. Cmwlth. 2013); see In
    re Estate of Moskowitz, 
    115 A.3d 372
    , 379-80 (Pa. Super. 2015). Although declaratory
    judgment actions are generally subject to a four-year statute of limitations, in cases
    where payment is sought, the cause of action or “actual controversy” does not typically
    accrue or arise until the payment is either due or made. See American Motorists
    Insurance Co. v. Farmers Bank and Trust Company of Hanover, 
    644 A.2d 1232
    , 1235
    (Pa. Super. 1994) (stating that a cause of action accrues “for each payment as it
    becomes due” and holding that the four-year statute of limitations for declaratory
    judgment actions “does not bar [the insured] from contesting its current and future
    obligations under the policy, as well as those payments which were made within the
    four years preceding” the petition for declaratory judgment); see also Pennsylvania
    Turnpike Commission v. Atlantic Richfield Co., 
    375 A.2d 890
    , 892 (Pa. Cmwlth. 1977).
    Pursuant to section 9728(b)(4) of the Sentencing Code, payments for costs
    are seemingly due when the amount has been “entered as a judgment upon the person
    or the property of the person.” 42 Pa.C.S. §9728(b)(4). Under section 9728(b)(5), the
    costs can be deemed to be paid when the county correctional facility or Department of
    Corrections “make monetary deductions from inmate personal accounts.” 42 Pa.C.S.
    §9728(b)(5). However, there is nothing in the parties’ filings to suggest that the
    transportation costs were reduced to and indexed as a judgment or that deductions were
    made from Petitioner’s inmate account. Moreover, the bills for transportation costs do
    not list a payment due date, and there are no factual averments to indicate whether
    Respondents have issued warnings and/or notices to Petitioner that they would pursue
    the entry of judgment or make deductions in the event the bills were not paid by a
    8
    certain date. Consequently, there exists issues of fact that must be resolved through
    further development of the record, and we overrule Respondents’ preliminary objection
    claiming that the action is barred by the statute of limitations.
    Pa.R.C.P. No. 240
    By its terms, Rule 240 governs IFP status in “all civil actions and
    proceedings except actions pursuant to the Protection from Abuse Act,[10]” Pa.R.C.P.
    No. 240(a), and permits a party to proceed IFP without having “to pay the costs of
    litigation.” Pa.R.C.P. No. 240(b). If a party proceeding IFP settles the civil action,
    subsection (g) of the Rule allows reimbursement from the settlement funds only to
    cover “the exonerated fees and costs,” Pa.R.C.P. No. 240(g), incurred in connection
    with the civil action. The Rule, however, does not provide an independent basis upon
    which to impose or collect transportation costs against a criminal defendant in PCRA
    proceedings, much less where no monetary settlement had occurred in those
    proceedings. Moreover, as mentioned above, Petitioner has pled a viable claim that
    section 9728(g) of the Sentencing Code—the sole statute authorizing the imposition of
    transportation costs—is unconstitutional as applied to his set of circumstances.
    Therefore, assuming that Petitioner had received money as a result of the settlement
    agreement, Respondents cannot employ Pa.R.C.P. No. 240(g) as the means by which
    to recoup transportation costs from the settlement fund when there may be no valid
    legal basis to charge Petitioner with those costs in the first instance. We overrule
    Respondents’ preliminary objection based on Pa.R.C.P. No. 240(g).
    10
    Act of October 7, 1976, PL 1090, No. 218, 35 P.S. §§10181-10190.
    9
    Conclusion
    Accordingly, we overrule Respondents’ preliminary objections. Due to
    this resolution, we need not address Petitioner’s preliminary objections to the
    preliminary objections and dismiss those objections as moot. Respondents shall file an
    answer(s) to the Petition within 30 days of this opinion and its accompanying order.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    10
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Joseph P. Guarrasi,                     :
    Petitioner           :
    :    No. 176 M.D. 2018
    v.                          :
    :
    County of Bucks; Bucks County           :
    Sheriff’s Department; Clerk of          :
    Courts of Bucks County,                 :
    Respondents           :
    ORDER
    AND NOW, this 14th day of September, 2018, the preliminary
    objections filed by the County of Bucks, Bucks County Sheriff’s Department, and
    the Clerk of Courts of Bucks County (collectively, Respondents) to the petition for
    review filed by Joseph P. Guarrasi (Petitioner) are OVERRULED. The preliminary
    objections filed by Petitioner to Respondents’ preliminary objections are
    DISMISSED as moot. Respondents shall file an answer(s) within 30 days of this
    order.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge