M. Morgalo v. S. Gorniak (SCI Albion Accountant) v. Montgomery County Clerk of Courts

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Morgalo, :

Petitioner :

:

v. :

:

Sandra Gorniak, :

(SCI Albion Accountant) :

:

v. :

:

Montgomery County Clerk of :

Courts, : No. 489 M.D. 2013

Respondents : Submitted: February 11, 2015

BEFORE: HONORABLE DAN PELLEGRINI, President Judge1

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge2

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE MARY HANNAH LEAVITT, Judge3

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION BY

JUDGE COVEY FILED: March 8, 2016

Michael Morgalo (Morgalo), pro se, filed a Request to Stop

Deduction(s) and Return of Monies from Inmate’s Account (Petition) in this

Court’s original jurisdiction on September 27, 2013. Therein, Morgalo requests

1

This case was assigned to the opinion writer on or before December 31, 2015, when

President Judge Pellegrini assumed the status of senior judge.

2

This case was assigned to the opinion writer on or before January 31, 2016, when Judge

Leadbetter assumed the status of senior judge.

3

This case was assigned to the opinion writer before January 4, 2016, when Judge

Leavitt became President Judge.

this Court to direct the Pennsylvania Department of Corrections (Department)

Inmate Accounting Office/Inmate Accountant Sandra Gorniak (Gorniak) to stop

deducting monies from his inmate account and to order the Inmate Accounting

Office and the Montgomery County Clerk of Courts to return funds previously

deducted therefrom because his sentencing orders do not authorize deductions until

he is paroled. In response, the Department filed preliminary objections to dismiss

Morgalo’s Petition pursuant to Pennsylvania Rule of Civil Procedure Number

1028(a)(4) on the grounds that it (1) is time-barred, and (2) fails to state a claim

upon which relief may be granted.4 The Department’s preliminary objections are

currently before the Court.

This Court’s review of preliminary objections is limited to the

pleadings. Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation &

Natural Res., 909 A.2d 413 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007).

[This Court is] required to accept as true the well-pled

averments set forth in the . . . complaint, and all

inferences reasonably deducible therefrom. Moreover,

the [C]ourt need not accept as true conclusions of law,

unwarranted inferences from facts, argumentative

allegations, or expressions of opinion. In order to sustain

preliminary objections, it must appear with certainty that

the law will not permit recovery, and, where any doubt

exists as to whether the preliminary objections should be

sustained, the doubt must be resolved in favor of

overruling the preliminary objections.

Id. at 415-16 (citations omitted).

4

Originally, the Department’s preliminary objections also sought to dismiss Morgalo’s

Petition under Pennsylvania Rule of Appellate Procedure 1514(c) for lack of personal

jurisdiction/improper service. On December 4, 2013, this Court ordered Morgalo to make proper

service. By December 30, 2013 order, this Court overruled that preliminary objection based

upon Morgalo’s compliance with its December 4, 2013 order.

2

According to Morgalo’s Petition, and his Memorandum of Law and

exhibits incorporated therein, Morgalo is incarcerated in the State Correctional

Institution at Albion (SCI-Albion), Pennsylvania. On June 23, 2003, the

Montgomery County Common Pleas Court (trial court) sentenced Morgalo to 6 to

23 months’ incarceration, followed by a consecutive two years of probation

(Docket No. 7235 of 2002). The sentencing order stated: “[Morgalo] is sentenced

to pay the costs of prosecution, and a fine of $500.00 and restitution of $_____ to

____ within the first 17 months of supervision/release from custody in monthly

installments as directed.” Morgalo Pet. Ex. A.

On April 26, 2004, the trial court sentenced Morgalo to 6 to 23

months’ incarceration, to be served concurrently with his Docket No. 7235 of 2002

sentence, followed by a consecutive two years of probation (Docket No. 1849 of

2002). The sentencing order stated, in pertinent part: “[Morgalo] is sentenced to

pay the costs of prosecution, and a fine of $ -0- and restitution of $ 0 to 0 within

the first parole months of supervision/release from custody in monthly

installments as directed.” Morgalo Pet. Ex. B.

On September 13, 2004, the trial court sentenced Morgalo to 9 to 23

months’ incarceration, followed by one year of consecutive probation (Docket No.

3911 of 2004). The sentencing order stated, in relevant part: “[Morgalo] is

sentenced to pay the costs of prosecution, and a fine of $ -0- and restitution of

$4,744.61 to SEE ATTACHED within the first ___ months of supervision/release from

custody in monthly installments as directed. RESTITUTION JOINT/SEVERAL W/CO

DEFT.” Morgalo Pet. Ex. C.

On July 10, 2008, the trial court sentenced Morgalo to 16 to 32 years’

incarceration (Docket No. 139 of 2007). The sentencing order stated: “[Morgalo]

3

is sentenced to pay the costs of prosecution, and a fine of $ - and restitution of $

- to - within the first months of supervision/release from custody in

monthly installments as directed.” Morgalo Pet. Ex. E.

Also on July 10, 2008, the trial court sentenced Morgalo to 5 to 10

years’ incarceration (Docket No. 9197 of 2006) to be served concurrently with his

Docket No. 139 of 2007 sentence. The sentencing order stated: “[Morgalo] is

sentenced to pay the costs of prosecution, and a fine of $ - and restitution of $ -

to - within the first months of supervision/release from custody in monthly

installments as directed.” Morgalo Pet. Ex. D.

On September 5, 2008, the Department began making monthly

deductions from Morgalo’s inmate account to satisfy his court costs and restitution

obligation pursuant to Section 9728(b) of the Sentencing Code, 42 Pa.C.S. §

9728(b), commonly known as Act 84.5 Act 84 provides in pertinent part:

(3) The county clerk of courts shall, upon sentencing, . . .

transmit to . . . the [Department] . . . copies of all orders

for restitution . . . , reparation, fees, costs, fines and

penalties. This paragraph also applies in the case of costs

imposed under [S]ection 9721(c.1) [of the Sentencing

Code] (relating to sentencing generally).[6]

5

42 Pa.C.S. §§ 9701-9799.41. The Sentencing Code was amended by Section 4 of the

Act of June 18, 1998, P.L. 640.

6

Section 9721(c.1) of the Sentencing Code states:

Mandatory payment of costs.--Notwithstanding the provisions of

[S]ection 9728 [of the Sentencing Code] (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 (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 [of the Sentencing Code], costs shall be

imposed upon the defendant under this section. No court order

4

....

(5) 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 or costs imposed under

[S]ection 9721(c.1) [of the Sentencing Code]. Any

amount deducted shall be transmitted by the

[Department] . . . to the probation department of the

county or other agent designated by the county . . . in

which the offender was convicted. The [Department]

shall develop guidelines relating to its responsibilities

under this paragraph.

42 Pa.C.S. § 9728(b) (emphasis added). Section 3.A of Department DC-ADM 005

(Collection of Inmate Debts Procedures Manual) (Debt Collection Manual)

provides:

Collection of Restitution, Reparation, Fees, Costs,

Fines and Penalties 42 Pa. C.S. § 9728, Act 84 of 1998

(Act 84)

1. When the County Clerk of Courts provides a copy(s) of

an order(s) for restitution, reparation, fees, costs, fines,

and/or penalties associated with the criminal proceedings,

the records office shall file the original and shall forward

a copy of the order to the business office of the facility

having custody of the inmate. The court order, the DC-

300B, Court Commitment Form, or supporting

information, must indicate the status of the debt including

the current balance due and any special conditions, which

would [a]ffect payments.

2. The business office, through inmate account deductions,

makes:

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. [sic] 706(C) (relating

to fines or costs).

42 Pa.C.S. § 9721(c.1).

5

a. payments of 20% of the inmate’s account balance and

monthly income for restitution, reparation, fees, costs,

fines, and/or penalties associated with the criminal

proceedings pursuant to 42 Pa.C.S. § 9728, Act 84 of

1998, provided that the inmate has a balance that exceeds

$10.00; and

b. payments of 10% of all the inmate’s account balance

and monthly income, for the Crime Victim’s

Compensation and Victim/Witness Services Funds,

provided that the inmate has a balance that exceeds

$10.00.

3. The business office shall send the funds deducted to the

county probation department or other designated agency.

....

5. Court orders that require payment upon, or within a

certain amount of time after parole or release, may not be

collected as set forth in this section unless the sentencing

court stipulates, via court order, that the Department is to

begin collection prior to the inmate being paroled or

released. In the event that a court order states payment is

required on or after parole or release, the Facility

Records Office Supervisor/designee shall contact the

court and request clarification of the court order using the

Court Order Clarification Memo (Attachment 3-A).

Morgalo Pet. Ex. F (bolded in original).

Morgalo initially sought relief from the deductions and for return of

monies from his inmate account through the Department’s inmate grievance

system.7 On March 22, 2010, he filed Grievance No. 311819 regarding the

allegedly improper Act 84 deductions, but claims he was unable to complete that

process due to a transfer to an out-of-state prison. On May 28, 2013, Morgalo filed

inmate Grievance No. 461892 with the Facility Grievance Coordinator alleging the

7

DC-ADM 804 (Inmate Grievance System).

6

unlawful deductions of monies from his prison inmate account stating, “I

submitted previous paperwork to no avail.” Morgalo Pet. Ex. H. That grievance

was denied as having been addressed in 2010. Morgalo Pet. Ex. I. Thus, Morgalo

contends that he exhausted his administrative remedies and now seeks an order

from this Court declaring that the Department was not authorized to make

deductions from his inmate account, ordering reimbursement of the funds deducted

to date, and enjoining further deductions.

Department’s First Preliminary Objection - Timeliness

The Department objects to Morgalo’s Petition on the ground that

Morgalo’s claims are time-barred. Initially, the Department contends that since

Morgalo’s requested relief is a mandamus action, the statute of limitations is six

months.

We acknowledge that this Court has historically applied a six-month

limitations period to inmate account deduction claims. See Curley v. Smeal, 41

A.3d 916 (Pa. Cmwlth. 2012) (Curley I), aff’d but criticized, 82 A.3d 418 (Pa.

2013) (Curley II); see also Lepre v. Susquehanna Cnty. Clerk of Judicial Records

(Pa. Cmwlth. No. 2121 C.D. 2012, filed October 2, 2013); Richards v. Dep’t of

Corr. (Pa. Cmwlth. No. 546 M.D. 2010, filed October 11, 2013); Lusick v. Defacto

Judge Pam Pryor Cohen Dembe (Pa. Cmwlth. No. 549 M.D. 2012, filed

November 7, 2012), aff’d, 84 A.3d 1056 (Pa. 2014); Pierre-Louis v. Dep’t of Corr.

(Pa. Cmwlth. No. 48 M.D. 2010, filed August 14, 2012); Stockton v. Dougherty

(Pa. Cmwlth. No. 31 M.D. 2011, filed July 10, 2012), aff’d, 88 A.3d 968 (Pa.

2014); Zellie v. Dep’t of Corr. (Pa. Cmwlth. No. 97 M.D. 2011, filed March 1,

2012).

7

Based on stare decisis, this Court applied the six-month limitations

period in Curley I. In Curley II, the Pennsylvania Supreme Court, in a per curiam

opinion, affirmed Curley I on the basis that the inmate’s claim was time-barred,

however, added: “[T]his Court does not embrace the Commonwealth Court’s view

that this action sounds in mandamus or that a six-month statute of limitations

applies to actions in mandamus in this context.” Curley II, 82 A.3d at 418. Chief

Justice Castille filed a concurring statement (joined by Justice Eakin) in which he

articulated that the Court should have gone farther and “correct[ed] the mistakes

below.” Id. In regard to the statute of limitations, the Chief Justice found it

difficult to see how a properly-asserted mandamus action “would lend itself to a

period of limitations analysis; since a mandamus action alleges a failure to act,

there is no action to trigger a specific limitations period.” Id. at 419.

“[N]otwithstanding [his] disapproval of the Commonwealth Court’s published

holdings on these two points of law,” since the inmate’s claim was also “time-

barred under the two-year period of limitation [the inmate] himself claim[ed] [was]

controlling[,]” the Chief Justice concurred in affirming this Court’s holding that

the inmate’s claim was time-barred. Id. For the following reasons, we overrule

our holding in Curley I and declare that inmate account deduction actions are not

mandamus actions, nor are they subject to a six-month limitations period.

First, relative to the instant case, Morgalo’s petition does not

expressly reference mandamus, and mandamus cannot be imputed from his

allegations. The Pennsylvania Supreme Court has held:

‘Mandamus is an extraordinary writ that will only lie to

compel official performance of a ministerial act or

mandatory duty where there is a clear legal right in the

plaintiff, a corresponding duty in the defendant, and

want of any other appropriate or adequate remedy.’

8

Jackson v. Vaughn, . . . 777 A.2d 436, 438 ([Pa.] 2001)

(citation omitted). It may be used to compel performance

of a ministerial duty, or to compel action in a matter

involving judgment or discretion. However, it may not

be used to direct the exercise of judgment or discretion

in a particular way, or to direct the retraction or

reversal of an action already taken. ‘Mandamus is a

device that is available in our system to compel a tribunal

or administrative agency to act when that tribunal or

agency has been ‘sitting on its hands.’ ’ [Pa. Dental

Ass’n v. Commonwealth Ins. Dep’t, . . . 516 A.2d 647,

652 ([Pa.] 1986).]

Chanceford Aviation Props., L.L.P. v. Chanceford Twp. Bd. of Supervisors, 923

A.2d 1099, 1107-08 (Pa. 2007) (citations omitted; emphasis added).

Morgalo’s Petition seeks to have this Court issue an order requiring

the Department to stop the deductions and return the money because its actions

are in contravention of the trial court’s orders directing him to pay the fines, costs

and restitution after he is released from custody. See Morgalo Pet. at 2; see also

Morgalo Memorandum of Law at 5-8; Morgalo Resp. to Prelim. Obj. at 11-15.

Because it is not clear on the face of the Petition that Morgalo’s payments are

indeed due only after his release, there is no clear legal right in him or

corresponding duty in the Department. Moreover, mandamus may not be used to

reverse actions the Department has already taken; thus, it cannot be the basis upon

which this Court may order the Department to stop the deductions and return

previously-deducted funds. See Chanceford Aviation Props. Accordingly,

Morgalo’s claim is not a mandamus action.

Second, a six-month limitations period does not apply in this case.

Section 5522(b)(1) of the Judicial Code requires that any “action against any

officer of any government unit for anything done in the execution of his office,

except an action subject to another limitation specified in this subchapter”

9

must be commenced within six months. 42 Pa.C.S. § 5522(b)(1) (emphasis

added). In Section 5524 of the Judicial Code, the General Assembly established a

two-year limitations period for certain claims. Of the eight types of actions listed,

only Sections 5524(3) and 5524(6) of the Judicial Code are potentially applicable

to the instant matter.8

8

Section 5524 of the Judicial Code states:

The following actions and proceedings must be commenced within

two years:

(1) An action for assault, battery, false imprisonment, false arrest,

malicious prosecution or malicious abuse of process.

(2) An action to recover damages for injuries to the person or for

the death of an individual caused by the wrongful act or neglect or

unlawful violence or negligence of another.

(3) An action for taking, detaining or injuring personal property,

including actions for specific recovery thereof.

(4) An action for waste or trespass of real property.

(5) An action upon a statute for a civil penalty or forfeiture.

(6) An action against any officer of any government unit for the

nonpayment of money or the nondelivery of property collected

upon on execution or otherwise in his possession.

(7) Any other action or proceeding to recover damages for injury

to person or property which is founded on negligent, intentional, or

otherwise tortious conduct or any other action or proceeding

sounding in trespass, including deceit or fraud, except an action or

proceeding subject to another limitation specified in this

subchapter.

(8) An action to recover damages for injury to a person or for the

death of a person caused by exposure to asbestos shall be

commenced within two years from the date on which the person is

informed by a licensed physician that the person has been injured

10

Section 5524(3) of the Judicial Code imposes a two-year statute of

limitations for “[a]n action for taking, detaining or injuring personal property,

including actions for specific recovery thereof.” 42 Pa.C.S. § 5524(3). However,

in Commonwealth v. Allen, 59 A.3d 677 (Pa. Cmwlth. 2012), aff’d but criticized,9

107 A.3d 709 (Pa. 2014), this Court declined to apply Section 5524(3) of the

Judicial Code to a motion for return of property and held:

[A]ll of the reported cases applying Section 5524(3) are

tort actions commenced by complaint. See, e.g.,

Kingston Coal Co. v. Felton Mining Co., Inc., . . . 690

A.2d 284 ([Pa. Super.] 1997) (conversion arising from

unlawful removal of minerals); Am[.] Ins[.] Co. v. Ford

Motor Credit Co., . . . 648 A.2d 576 ([Pa. Super.] 1994)

(surety of tax collector brought suit to recover amounts

paid to third party out of public funds); Torchia v.

Keystone Foods Corp., . . . 635 A.2d 1082 ([Pa. Super.]

1993) (tortious interference with contract rights); Bender

v. McIlhatten, . . . 520 A.2d 37 ([Pa. Super.] 1987)

(tortious interference with lease negotiations). None of

these tort claims can be filed against the

Commonwealth or a municipal police department

because they do not fall within the category of torts

that can be filed against the Commonwealth or a local

government.

Id. at 680-81 (emphasis added). This Court explained:

by such exposure or upon the date on which the person knew or in

the exercise of reasonable diligence should have known that the

person had an injury which was caused by such exposure,

whichever date occurs first.

42 Pa.C.S. § 5524.

9

In its review of this Court’s Allen decision, the Pennsylvania Supreme Court

“reject[ed] the Commonwealth Court’s reliance on a statute of limitations analysis to resolve the

timeliness of [the a]ppellee’s return motion[.]” Allen, 107 A.3d at 718. However, this Court’s

analysis of Section 5524(3) of the Judicial Code’s applicability to government defendants was

not criticized.

11

Even if a cause of action has been made out against the

defendants, the complaint will still fail to state a claim if

the defendants are entitled to sovereign immunity. The

test to determine if a Commonwealth employee is

protected from liability is to consider ‘whether the

Commonwealth employee was acting within the scope of

his or her employment; whether the alleged act which

causes injury was negligent and damages would be

recoverable but for the availability of the immunity

defense; and whether the act fits within one of the nine

exceptions to sovereign immunity.’

Williams v. Syed, 782 A.2d 1090, 1095 (Pa. Cmwlth. 2001) (emphasis added)

(quoting La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992)). In

Section 8522(b) of what is commonly known as the Sovereign Immunity Act,10 the

General Assembly waived sovereign immunity for damages caused in nine specific

instances, none of which apply to this case.11 42 Pa.C.S. § 8522(b). Accordingly,

Section 5524(3) of the Judicial Code’s two-year limitations period does not

supersede Section 5522(b)(1) of the Judicial Code’s six-month time limit.

10

42 Pa.C.S. §§ 8521-8528.

11

A Commonwealth party may be liable under Section 8522(b) of the Sovereign

Immunity Act for damages due to: (1) vehicle liability; (2) medical-professional liability; (3)

care, custody or control of personal property; (4) Commonwealth real estate, highways and

sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals;

(7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa.C.S. §

8522(b).

Although the Commonwealth may be liable to an inmate for damage to or negligent

handling of personal property under its care, custody or control, Williams v. Stickman, 917 A.2d

915 (Pa. Cmwlth. 2007), this Court has held that the taking of the property is not conduct that

falls with that exception. See Goodley v. Folino (Pa. Cmwlth. No. 2376 C.D. 2010, filed July 22,

2011). Moreover, rather than negligence, Morgalo’s claim is that Gorniak and the Montgomery

County Clerk of Courts intentionally and deliberately took his money and failed to return it.

“[S]tate employees do not lose their immunity for intentional torts, provided they are acting

within the scope of their employment.” Kull v. Guisse, 81 A.3d 148, 157 (Pa. Cmwlth. 2013).

12

Section 5524(6) of the Judicial Code, on the other hand, provides that

“[a]n action against any officer of any government unit for the nonpayment of

money or the nondelivery of property collected upon on execution or otherwise

in his possession” must be commenced within two years. 42 Pa.C.S. § 5524(6)

(emphasis added).

We analyze the first requirement of Section 5524(6) of the Judicial

Code - “[a]n action against any officer of any government unit” - under the

Judicial Code definitions. 42 Pa.C.S. § 5524(6). Section 102 of the Judicial Code

defines “[g]overnment unit” to include “any government agency or any court or

other officer or agency of the unified judicial system.” 42 Pa.C.S. § 102.

“Government agency” is defined as “[a]ny Commonwealth agency . . . .” Id. The

Judicial Code defines “Commonwealth agency” as “[a]ny executive agency or

independent agency.” Id. Executive agencies consist of “the departments, boards,

commissions, authorities and other officers and agencies of the Commonwealth

government[.]” Id. “Commonwealth government” is defined as “[t]he government

of the Commonwealth, including the courts and other officers or agencies of the

unified judicial system, . . . and the departments, boards, commissions, authorities

and officers and agencies of the Commonwealth[.]” Id.

Article 5, Section 1 of the Pennsylvania Constitution vests the

Commonwealth’s judicial power “in a unified judicial system consisting of the . . .

courts of common pleas . . . .” Pa. Const. art. 5, § 1. The clerk of courts is “[t]he

officer exercising the powers and performing the duties specified in Subchapter C

of Chapter 27 (relating to clerks of the court)” for any of the Commonwealth’s

judicial districts. 42 Pa.C.S. § 102; see also 42 Pa.C.S. § 901.

13

This Court has determined that an officer of the unified judicial

system and a judicial officer are two separate entities. See Dep’t of Health v.

Hanes, 78 A.3d 676, 685 (Pa. Cmwlth. 2013). Section 102 of the Judicial Code

defines “[c]ounty staff” as “[s]ystem and related personnel . . . other than judicial

officers [which are designated therein as ‘[j]udges, magisterial district judges and

appointive judicial officers’] . . . .” 42 Pa.C.S. § 102. The Judicial Code

specifically defines “[s]ystem and related personnel” to include clerks of courts.

Id. Although the clerk of courts is considered county staff as opposed to a judicial

officer, he is nevertheless an officer of a Commonwealth government. See Hanes,

78 A.3d at 685 (holding that “[a]lthough Hanes is not a ‘judicial officer,’ he is

named in his official capacity as Clerk of the Orphans’ Court of Montgomery

County. He is, therefore, an officer of the Commonwealth government under

Section 102 of the Judicial Code. . . .”); see also Richardson v. Peters, 19 A.3d

1047 (Pa. 2011) (holding that the Commonwealth Court erred by concluding that

the common pleas clerk of courts was not a Commonwealth officer); Appeal of

Troutman, 936 A.2d 1, 7 (Pa. 2007) (holding that a common pleas clerk of courts

“is considered to be the Commonwealth government as a Commonwealth officer”).

Therefore, the Montgomery County Clerk of Courts is an officer of the

Commonwealth government.

Because Section 102 of the Judicial Code does not specifically define

“officer,” and we found no case law on point, we must analyze whether Morgalo’s

action against Gorniak, as the Department’s SCI-Albion accountant, qualifies as an

action against a Commonwealth officer. Morgalo’s Petition names Gorniak as a

party to his action, but more specifically therein states that “the Inmate Accounting

Office at SCI-Albion began deducting . . . from [his] account and sending same to

14

the Clerk of Court’s Office of Montgomery County.” Morgalo Pet. ¶ 1. He further

seeks this Court’s intervention “in correcting the Inmate Accounting Office[’]s . . .

error and misinterpretation[.]” Morgalo Pet. ¶ 4. Because Morgalo’s claims are

for Gorniak’s actions within the scope of her employment on the Department’s

behalf, and the Department is defending its deductions, it is clear that the

Department is the Commonwealth party from whom Morgalo is seeking relief.

Section 8501 of the Judicial Code (relating to matters affecting

government units) defines “Commonwealth party” as “[a] Commonwealth agency

and any employee thereof . . . with respect to an act within the scope of his office

or employment.” 42 Pa.C.S. § 8501. There is no question that the Department is a

Commonwealth agency. See 42 Pa.C.S. § 102; see also McCray v. Pa. Dep’t of

Corr., 872 A.2d 1127 (Pa. 2005). “Employee” is defined, in pertinent part, as:

“Any person who is acting . . . on behalf of a government unit whether on a

permanent or temporary basis, whether compensated or not and whether within or

without the territorial boundaries of the government unit, including . . . any elected

or appointed officer, member of a governing body or other person designated to act

for the government unit.” 42 Pa.C.S. § 102. Accordingly, we hold that Morgalo’s

claims against Gorniak meet the requirement that the claim be “against any officer

of any government unit[.]” 42 Pa.C.S. § 5524(6).

The General Assembly did not specifically define the terms of the

second requirement of Section 5524(6) of the Judicial Code – “for the . . .

nondelivery of property . . . in [the government unit officer’s] possession[.]”

42 Pa.C.S. § 5524(6).

The Statutory Construction Act [of 1972, 1 Pa.C.S. §§

1501-1991] provides that in interpreting a statute it is

incumbent that the reviewing court endeavor to ascertain

the intent of the Legislature and that when the words of a

15

statute are clear and free of ambiguity we must interpret

those words by their plain meaning.

Commonwealth v. Cox, 983 A.2d 666, 703 (Pa. 2009); see also People United to

Save Homes v. Dep’t of Envtl. Prot., 789 A.2d 319, 328 (Pa. Cmwlth. 2001) (“if a

statutory provision is not ambiguous, the legislative intent should be effectuated by

according the words their plain and ordinary meaning”). Because the General

Assembly did not define the terms of Section 5524(6) of the Judicial Code therein,

this Court may determine their “common and approved usage . . . by examining

[their] dictionary definition[s].” Commonwealth v. Hart, 28 A.3d 898, 909 (Pa.

2011).

“Nondelivery” is the “failure to transfer or convey something.”

Black’s Law Dictionary 1152 (9th ed. 2009). “Personal property” is “[a]ny

movable or intangible thing that is subject to ownership and not classified as real

property.” Id. at 1337. “Possession” is defined as “[t]he fact of having or holding

property in one’s power; the exercise of dominion over property.” Id. at 1281.

Here, because the Department made the monetary deductions and transferred the

money to the Montgomery County Clerk, where it remains despite Morgalo’s

demands, the “nondelivery of property . . . in [the government unit officer’s]

possession” requirement of Section 5524(6) of the Judicial Code is met. 42

Pa.C.S. § 5524(6).

In Stoppie v. Johns, 720 A.2d 808 (Pa. Cmwlth. 1998), this Court

reasoned that if Section 5524(6) of the Judicial Code designates a statute of

limitations for the specific conduct at issue, it prevails over the six-month

limitations period in Section 5522(b)(1) of the Judicial Code which applies when

the specific stated activity does not have an otherwise designated limitations

16

period.12 Because Section 5524(6) of the Judicial Code applies specifically to a

government unit officer’s non-delivery of property over which it has exercised

dominion, Section 5524(6) of the Judicial Code’s two-year limitations period

applies over Section 5522(b)(1) of the Judicial Code’s six-month time limit. Thus,

Morgalo’s action for return of his inmate account monies against Gorniak and the

Montgomery County Clerk of Courts is subject to a two-year statute of

limitations.13

In the instant case, Morgalo specifically pled that the Department

began making the deductions from his account on September 5, 2008. Applying

the two-year statute of limitations, Morgalo’s action had to be filed with this Court

on or before September 5, 2010 in order to be timely.14 Because Morgalo did not

12

We acknowledge that the Stoppie Court’s holding applied to Section 5524(7) of the

Judicial Code, 42 Pa.C.S. § 5524(7), rather than Section 5524(6) of the Judicial Code. However,

in reaching its decision, the Court discussed both provisions. Thus, the Court’s reasoning is

applicable and instructive in the instant case.

13

As the Department argued, even if Morgalo’s claim could be deemed a civil rights

action, a two-year statute of limitations period would apply.

With respect to claims pursuant to 42 U.S.C. § 1983, the [United

States] Supreme Court has concluded that such claims are best

characterized as personal injury actions for purposes of state

statutes of limitations. Wilson v. Garcia, 471 U.S. 261 . . . (1985).

As such, claims which are brought pursuant to 42 U.S.C. § 1983

are also subject to a two-year statute of limitations in

Pennsylvania. See 42 Pa.C.S. § 5524[(7)].

Burger v. Borough of Ingram, 697 A.2d 1037, 1041 (Pa. Cmwlth. 1997).

14

In Morgalo’s brief, he clarified that although the deductions began on September 5,

2008, he was not aware of them at that time. Notwithstanding, Pennsylvania courts have

declined to treat these types of deductions as continuing violations that would reset the statute of

limitations. The Pennsylvania Supreme Court has held:

[A] statute of limitations period begins to run when a cause of

action accrues; i.e., when an injury is inflicted and the

17

file his Petition with this Court until September 27, 2013, his appeal exceeded the

applicable statute of limitations by three years.

However, Morgalo claims that he was required to exhaust his

administrative remedies before seeking an order from this Court declaring that the

Department was not authorized to make deductions from his inmate account.

The doctrine of exhaustion of administrative remedies

requires that a person challenging an administrative

decision must first exhaust all adequate and available

administrative remedies before seeking relief from the

courts. The purposes of this exhaustion requirement are

to prevent premature judicial intervention in the

administrative process and ensure that claims will be

addressed by the body with expertise in the area. Thus,

where the legislature has provided an administrative

procedure to challenge and obtain relief from an agency’s

action, failure to exhaust that remedy bars this Court

corresponding right to institute a suit for damages arises. It is the

duty of the party asserting a cause of action to use all reasonable

diligence to properly inform him-or herself of the facts and

circumstances upon which the right of recovery is based and to

institute suit within the prescribed period. Generally, once the

prescribed statutory period has expired, the complaining party is

barred from bringing suit.

Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011) (citations omitted).

This Court has expressly held that under circumstances in which the inmate is aware of

the ongoing deductions, his/her cause of action accrues when the Department makes the first

deduction. This Court in Zellie noted that it had previously “rejected the argument that a

continuing violation creates ongoing causes of action, stating: . . . ‘[a]dopting [such a] rationale

would effectively render the limitation period for any cause of action alleging loss of payment

meaningless when the payment is received on a regular basis.’” Slip op. at 3 n.5 (quoting

Casner v. Am. Fed’n of State, Cnty., & Mun. Emps., 658 A.2d 865, 871 (Pa. Cmwlth. 1995)).

Two weeks after the Zellie decision, the Curley I Court likewise relied upon Casner to conclude

that a cause of action commences in these types of cases when the Department makes the first

deduction. Four weeks after Curley I was decided, the Pierre-Louis Court relied upon Curley I

and Casner to reach the same conclusion.

18

from hearing claims for declaratory or injunctive relief

with respect to that agency action.

Funk v. Dep’t of Envtl. Prot., 71 A.3d 1097, 1101 (Pa. Cmwlth. 2013) (citations

omitted). The Department has a procedure for inmates to challenge its decisions.

Chapter 93 of Title 37 of the Pennsylvania Code contains

regulations pertinent to state correctional institutions.

Section 93.9 [of the Department’s regulations]

establishes an inmate grievance system that provides a

forum for prison inmates to complain to the Department

about problems that arise ‘during the course of

confinement.’ 37 Pa.[ ]Code § 93.9. That section states:

(a) The Department will maintain an inmate

grievance system which will permit any inmate to

seek review of problems which the inmate

experiences during the course of confinement.

The system will provide for review and resolution

of inmate grievances at the most decentralized

level possible. It will also provide for review of

the initial decision[-]making and for possible

appeal to the Central Office of the Department.

An inmate will not be disciplined for the good

faith use of the grievance systems. . . .

Id.

McCray v. Dep’t of Corr., 872 A.2d 1127, 1131 (Pa. 2005).

According to the Commonwealth’s Inmate Grievance System

Procedures Manual (Grievance Manual) and the Department’s Inmate Handbook

(Handbook), the inmate grievance process begins with the filing of a grievance

with the Facility Grievance Coordinator. Grievance Manual at 1-2; Inmate

Handbook at 8. “The [process] requires an inmate who has received an initial

determination on his grievance to appeal to the Superintendent and, thereafter, seek

final review with [the Department]. If the inmate fails to complete each of these

19

steps, he fails to exhaust his administrative remedies.” Kittrell v. Watson, 88 A.3d

1091, 1095 (Pa. Cmwlth. 2014).

Morgalo avers in his Petition that, on March 22, 2010, he filed

Grievance No. 311819 concerning the allegedly improper Act 84 deductions.

However, he declared that he “did not get the chance to complete th[at] process.”

Morgalo Pet. Ex. J. The Department’s records, which Morgalo attached to his

Petition, reflect that Grievance No. 311819 “was answered on 4/5/10” by the

Facility Manager. Morgalo Pet. Ex. K. However, the Facility Manager’s April 5,

2010 response was not attached to Morgalo’s Petition.

Also according to Morgalo’s allegations set forth in his Petition, he

filed inmate Grievance No. 461892 with the Facility Grievance Coordinator on

May 28, 2013 regarding the deductions, stating: “I submitted previous paperwork

to no avail.” Morgalo Pet. Ex. H. On June 10, 2013, the Facility Grievance

Coordinator rejected the grievance because “the issue(s) presented . . . has been

reviewed and addressed.” Morgalo Pet. Ex. I. Morgalo appealed from that

decision to the Facility Manager, arguing that he was not afforded the opportunity

to complete the former grievance. Morgalo Pet. Ex. J. On July 11, 2013, the

Facility Manager rejected Morgalo’s appeal because it was addressed in 2010

relative to Grievance No. 311819. Morgalo Pet. Ex. K. Morgalo appealed

therefrom to the Chief Grievance Officer who, on August 30, 2013, responded:

A review of the record was conducted by the Office of

Chief Counsel. They found that this matter was dealt

with appropriately in 2010 when you filed [G]rievance

#311819. The [Department] policy DC-ADM 804 does

not permit either duplicative grievances or untimely

grievances. You provide no evidence to substantiate

your objection to the collection of Act 84 funds from

your Inmate Account. This office upholds the decisions

of the Office of Chief Counsel, the Facility Manager and

20

the Grievance Officer in denying your grievance and

requested relief.

Morgalo Pet. Ex. M.

In his Petition, Morgalo claims that when he was removed to the

Michigan department of corrections “in 2010,” he understood that he was in

Michigan’s custody and “was not authorized to conform to the doctrine of

exhaustion of remedies, and therefore was unable to petition the [C]ourt in 2010.”

Morgalo Pet. at 8. Morgalo does not specify in either the Petition or his brief when

he was taken into Michigan’s custody. Notwithstanding, on or about May 28,

2013 (presumably upon his return from Michigan), Morgalo again filed a

grievance regarding the deductions. Morgalo contends that his May 2013

grievance was a continuation of the March 2010 grievance because he was

prevented from exhausting the grievance process he started in March 2010. See

Morgalo Pet. Ex. H.

If Morgalo’s March 2010 grievance was exhausted as of April 5,

2010, his September 27, 2013 filing exceeded the two-year statute of limitations,

making his claim untimely. If, however, Morgalo’s May 2013 grievance was a

continuation of the March 2010 grievance, and his administrative remedies were

exhausted August 30, 2013, his September 27, 2013 filing was timely. Based upon

the Petition, we cannot ascertain whether Morgalo’s May 2013 grievance was a

new grievance or an extension of his March 2010 grievance and, thus, we cannot

determine whether the Petition was timely filed.

Because “it must appear with certainty that the law will not permit

recovery, and, where any doubt exists as to whether the preliminary objections

should be sustained, the doubt must be resolved in favor of overruling the

preliminary objections[,]” we are constrained to overrule the Department’s

21

preliminary objection as to the timeliness of Morgalo’s Petition. Pa. State Lodge,

Fraternal Order of Police, 909 A.2d at 416. Therefore, the Department’s

objection to the Petition’s timeliness is overruled.

Department’s Second Preliminary Objection - Demurrer

The Department also objects to Morgalo’s Petition on the ground that

Morgalo has failed to state a claim upon which relief may be granted. In the

Petition, Morgalo pleads that the Department’s Inmate Accounting Office and

Clerk of Courts deducted monies from his inmate account without proper judicial

authorization. The Department specifically argues that since it is statutorily

authorized to collect monies from inmate accounts without the trial court’s orders,

the wording therein is irrelevant; however, to the extent the trial court’s orders

control, they are unambiguous.

Morgalo contends that the Department’s Inmate Accounting Office

and Clerk of Courts erred and misinterpreted Sections 8127(a) of the Judicial Code

(relating to when wages may be attached)15 and Section 9728 of the Sentencing

Code (relating to restitution collection) and, as a result, “[t]o date, a total of

$690.65 has been deducted from [his] account without any authorization from the

law and in direct contravention of Petitioner’s Sentencing Judge[’s] Orders and

[Department] Policy.” Morgalo Pet. ¶ 2. Specifically, citing Commonwealth v.

Fleming, 804 A.2d 669 (Pa. Super. 2002); Boofer v. Lotz, 797 A.2d 1047 (Pa.

Cmwlth. 2002), rev’d, 842 A.2d 333 (Pa. 2004); and Holloway v. Lehman, 671

A.2d 1179 (Pa. Cmwlth. 1996), Morgalo claims that the Department cannot take

his money without notice and the opportunity to be heard.

15

42 Pa.C.S. § 8127(a).

22

In George v. Beard, 824 A.2d 393 (Pa. Cmwlth.), aff’d, 831 A.2d

597 (Pa. 2003), and Russell v. Donnelly, 827 A.2d 535 (Pa. Cmwlth. 2003), this

Court sustained demurrers based on nearly identical arguments. In George, this

Court stated:

[Section 9728(b)(5) of the Sentencing Code] authorizes

[the Department] to make monetary deductions from an

inmate’s account to pay court[-]ordered fines and costs

and does not impose prior court authorization as a

threshold condition. See [Fleming]; Sweeney v. Lotz,

787 A.2d 449 (Pa. Cmwlth. 2001). As noted, [the

inmate] concedes that fines and costs were imposed as

part of his criminal sentence. Petition, ¶ 5. It is the

judgment of sentence which enables [the Department] to

deduct the funds. Thus, [the inmate] may not challenge

that judgment by seeking to enjoin [the Department]

from carrying out its statutorily[-]mandated duty to

deduct the funds. Harding v. Superintendent Stickman of

SCI Greene, 823 A.2d 1110 . . . (Pa. Cmwlth. . . . 2003)

(inmate may not challenge substance of sentencing

court’s order by seeking an injunction against [the

Department]). Compare Commonwealth v. Baker, 782

A.2d 584 (Pa. Super. 2001) (inmate appealed trial court’s

order directing deductions from inmate’s account for

costs and restitution).

....

Nor is [the inmate] entitled to reimbursement from [the

Department] for funds deducted from his account.

Pursuant to Section 9728(b)(5) of the Sentencing Code,

the funds deducted from his inmate account were sent to

the appropriate county agent for payment of his court

ordered obligations. As such, he has no right to

reimbursement from [the Department]. Harding.

George, 824 A.2d at 396-97. Thereafter, in Russell, this Court held:

The [Harding] Court found that the holding in Boofer

does not negate [the Department’s] authority under Act

84 to make the deductions. In Boofer[,] the Court held

23

that a hearing was required before deductions could be

made from an inmate’s account to determine his financial

ability to pay. The Court relied upon Section 8127(a) of

the Judicial Code, 42 Pa.C.S. § 8127(a), which provides

that an individual’s wages are exempt from attachment

while in the hands of an employer but that wages may be

attached upon an action for restitution and costs.[FN]3 The

Court cited Holloway . . ., which held that inmates could

challenge the deductions from their accounts where [the

Department], in the complete absence of any due process,

assessed monetary damages against inmates for

destruction of prison property and began deducting funds

from their accounts after the appeal period had expired

from misconduct decisions finding them liable for

damages.

[FN]3. In Mays v. Fulcomer, . . . 552 A.2d 750

([Pa. Cmwlth.] 1989), the Court held that inmate

remuneration for prison labor does not constitute

wages for purposes of Section 8127 [of the

Judicial Code16].

Unlike the inmates in the Holloway case, [the inmate]

was afforded due process when the restitution amount

was established by the court of common pleas at his

sentencing hearing.[17] Moreover, Section 9728(b)(5) [of

the Sentencing Code] was amended after Holloway. In

16

See also Heffran v. Dep’t of Labor & Indus., 863 A.2d 1260, 1263 (Pa. Cmwlth. 2004)

aff’d, 886 A.2d 222 (Pa. 2005) (holding that an inmate was not an employee with standing to file

a complaint for violations of the Worker and Community Right-to-Know Act, Act of October 5,

1984, P.L. 734, 35 P.S. §§ 7301-7320).

17

We acknowledge that, six years after Morgalo’s deductions commenced, the U.S.

Court of Appeals for the Third Circuit determined in Montañez v. Pennsylvania Department of

Corrections, 773 F.3d 472, 481 (3d Cir. 2014) that inmates must receive pre-deduction

notification. However, the Pennsylvania Supreme Court has held: “While we certainly find

[Third Circuit Appeals Court] decisions instructive, their holdings . . . are not binding on us or

any other court of this Commonwealth.” Goldman v. Se. Pa. Transp. Auth., 57 A.3d 1154,

1170 n.12 (Pa. 2012). Moreover, the Pennsylvania Supreme Court has yet to adopt Montañez.

Rather, in Buck v. Beard, 879 A.2d 157 (Pa. 2005), the Pennsylvania Supreme Court held that a

“sentencing hearing provided [the inmate] with the required pre-deprivation due process[.]” Id.

at 161. Accordingly, Buck is controlling.

24

Sweeney the Court noted the holding in Sweatt [v.

Department of Corrections, 769 A.2d 574 (Pa. Cmwlth.

2001)] that Section 9728(b)(5) [of the Sentencing Code]

merely provided a procedural mechanism for collecting

costs, fines and restitution from incarcerated judgment

debtors and noted further the proposition that an

individual is obligated to pay court-ordered restitution

irrespective of his or her incarceration.

Russell, 827 A.2d at 537-38. Based upon the foregoing, we similarly hold that

Morgalo’s reliance upon Section 8127(a) of the Judicial Code, Fleming, Boofer

and Holloway to support his position is misplaced.

Morgalo further argues that “the Department neglected [the trial

court’s o]rders and ignored it[s] own policy when it never contacted [the

sentencing judge] to obtain a ‘Certified Order’ authorizing [it] to deduct money

from [Morgalo’s] account.” Morgalo Pet. Memorandum at 7. Indeed, Section

3.A.5 of the Department’s Debt Collection Manual prohibits the Department from

commencing Act 84 inmate account deductions if a trial court’s sentencing order

specifies that payments will be required “upon or within a certain amount of time

after parole or release” and, if the Department is unsure whether a court order

intends for payments to begin at or after parole, the Department “shall” contact the

trial court and obtain clarification. Morgalo Pet. Ex. F.

According to the documents incorporated into Morgalo’s Petition, the

June 23, 2003 sentencing order stated: “[Morgalo] is sentenced to pay the costs

of prosecution, and a fine of $500.00 and restitution of $_____ to ____ within

the first 17 months of supervision/release from custody in monthly

installments as directed.” Morgalo Pet. Ex. A (emphasis added). The April 26,

2004 sentencing order read, in pertinent part: “[Morgalo] is sentenced to pay the

costs of prosecution, and a fine of $ -0- and restitution of $ 0 to 0 within the

25

first parole months of supervision/release from custody in monthly

installments as directed.” Morgalo Pet. Ex. B (emphasis added). The September

13, 2004 sentencing order reflected, in relevant part: “[Morgalo] is sentenced to

pay the costs of prosecution, and a fine of $ -0- and restitution of $4,744.61 to

SEE ATTACHED within the first ___ months of supervision/release from custody

in monthly installments as directed. RESTITUTION JOINT/SEVERAL W/CO DEFT.”

Morgalo Pet. Ex. C (emphasis added). And the two July 10, 2008 sentencing

orders identically stated: “[Morgalo] is sentenced to pay the costs of

prosecution, and a fine of $ - and restitution of $ - to - within the first ____

months of supervision/release from custody in monthly installments as

directed.” Morgalo Pet. Exs. D and E (emphasis added).

The trial court’s sentencing orders unartfully proscribe what Morgalo

owes in restitution, costs and fines. In each case, the forms reflect that the

payments are due “within the first ____ months of supervision/release from

custody.” Morgalo Pet. Exs. A-E. “Supervision” in the context of Pennsylvania’s

criminal justice system means supervision while on probation or parole. See

Section 5121(e) of the Crimes Code, 18 Pa.C.S. § 5121(e);18 see also Timothy P.

Wile, 12 West’s PA Prac., Pennsylvania Law of Probation and Parole, Chapter 10

18

Section 5121(e) of the Crimes Code provides:

As used in this section the phrase ‘official detention’ means arrest,

detention in any facility for custody of persons under charge or

conviction of crime or alleged or found to be delinquent, detention

for extradition or deportation, or any other detention for law

enforcement purposes; but the phrase does not include

supervision of probation or parole, or constraint incidental to

release on bail.

18 Pa.C.S. § 5121(e) (emphasis added).

26

(2010 ed.). However, the plain meaning of the term “supervision” is “[t]he act of

managing, directing, or overseeing persons . . . .” Black’s Law Dictionary at 1576.

Thus, “supervision” could refer to one’s time while on parole or probation, or

within the prison walls. Similarly, since “custody” is defined as “[t]he care and

control of a . . . person for inspection, preservation, or security,” the phrase

“release from custody” could mean either release to community corrections, or

release on parole and/or after the maximum sentence release date has been reached.

Id. at 441.

Moreover, where the blank between “first” and “months” is not

completed, the payments could begin immediately upon supervision/release from

custody. Even assuming that it was clear to Morgalo and the Department that

“supervision” and “release from custody” refer to release from incarceration, and

only those orders in which the blank between “first” and “months” is filled in

require payment upon or after release from official detention, the June 23, 2003

sentencing order requires payment “within the first 17 months of

supervision/release from custody[,]” Morgalo Pet. Ex. A (emphasis added), and

the April 26, 2004 sentencing order requires payment “within the first parole

months of supervision/release from custody.” Morgalo Pet. Ex. B (emphasis

added). Therefore, it is possible that those monies are to be paid while he is

incarcerated and others are to await his supervision/release.

Based on the above, we hold that the trial court’s sentencing orders in

this case are grossly ambiguous. Under the circumstances, not only did Section

3.A.5 of the Department’s Debt Collection Manual require the Department to seek

clarification of the sentencing orders in this precise circumstance, but this Court

has held that where a sentencing order is ambiguous, “there is support for

27

transferring [the matter] to the sentencing court for resolution.” Harrison v. Pa.

Dep’t of Corr., 860 A.2d 196, 199 (Pa. Cmwlth. 2004). The Supreme Court has

likewise held that the sentencing judge is best qualified to resolve interpretations of

his or her orders. Commonwealth v. Isabell, 467 A.2d 1287 (Pa. 1983). The

Department did not do that in this case.

Although it is clear that the Department is statutorily authorized to

collect monies from inmate accounts without a trial court order specifically

triggering the deductions, here it is unclear whether the trial court’s order requires

all or certain of Morgalo’s payments to begin only at or after parole. Further if, as

Morgalo claims, his payment obligations were triggered only upon his

parole/release, and he was not paroled/released between his June 23, 2003, April

26, 2004, September 13, 2004 and July 10, 2008 sentences, his claims that those

monies were prematurely deducted may be valid.19 Because it does not appear

19

The Petition reflects that Morgalo was sentenced on June 23, 2003 for a matter

docketed in 2002. According to the April 26, 2004 order issued under another 2002 docket

number, he was sentenced to serve 6 to 23 months to be served simultaneously with the June 23,

2003 order. Because it is likely that both sentences related to crimes Morgalo committed before

he was sentenced in June 2003, he could have been continuously incarcerated from June 23,

2003, or he could have been paroled between the June 23, 2003 and April 26, 2004 sentences.

The new sentence could also be related to a crime committed during his incarceration.

Whether Morgalo was paroled from or fully served his June 23, 2003 and April 26, 2004

concurrent 6 to 23-month sentences, he could have been released before his next charge docketed

in 2004, for which he was sentenced on September 13, 2004. Or, he could have committed a

crime during his incarceration and this sentence merely extended his prison stay.

The two July 10, 2008 orders related to third-degree murder (2007 docket number) and

theft (2006 docket number) reflect that Morgalo was credited for time he was incarcerated

between December 1, 2006 and July 10, 2008. Morgalo Petition Exs. D, E. Reference to a

firearm on the theft sentencing sheet makes it likely that Morgalo was on parole from or had

fully served his 6 to 23-month September 13, 2004 sentence (by mid-August of 2006) before he

began serving time on December 1, 2006. The impact of the third-degree murder sentence

sheet’s statement that Morgalo “shall be kept separate from Marcus R. Allen (HJ-7463 (SCI-

Somerset)[)] and David Cooper [(HL-9533 SCI-Huntington)],” is unclear. It could have been

28

with certainty that the law precludes Morgalo’s claims, doubt exists as to whether

the Department’s demurrer should be sustained. Accordingly, we are constrained

to overrule it. Pa. State Lodge, Fraternal Order of Police. Therefore, the

Department’s demurrer is overruled.

Based on the foregoing, the Department’s preliminary objections are

overruled.

___________________________

ANNE E. COVEY, Judge

necessary because the men participated in the crime, because they posed a threat to Morgalo’s

safety, or because Morgalo committed the crime against a prisoner before he completed his

September 13, 2004 sentence. Morgalo Petition Ex. D.

Nevertheless, since it is clear that Morgalo has been continuously incarcerated since at

least December 1, 2006, whether deductions related to any of his sentences were permitted to be

made thereafter and relative to which sentences remain at issue.

29

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Morgalo, :

Petitioner :

:

v. :

:

Sandra Gorniak, :

(SCI Albion Accountant) :

:

v. :

:

Montgomery County Clerk of :

Courts, : No. 489 M.D. 2013

Respondents :

ORDER

AND NOW, this 8th day of March, 2016, the Pennsylvania

Department of Corrections’ (Department) preliminary objections to Michael

Morgalo’s (Morgalo) Request to Stop Deduction(s) and Return of Monies from

Inmate’s Account (Petition) are overruled. Accordingly, the Department is

directed to file an answer to the Petition within 30 days of this Court’s order.

___________________________

ANNE E. COVEY, Judge