Summary
In Johnson, we held an inmate subject to his first Act 84 deduction before Bundy and Montañez were decided was entitled to post-deprivation process conforming to the requirements outlined in those cases.
Summary of this case from Washington v. The Pa Dep't of Corr.Opinion
No. 18 EAP 2019
10-01-2020
Aquil JOHNSON, Appellant v. John WETZEL, Secretary PA, D.O.C., Mark Garman, Super., S.C.I. Rockview et. al., Officers, Agents, Servants, Employees and Attorneys, Appellees
OPINION
This is a direct appeal from a Commonwealth Court order dismissing Appellant's amended petition for review. In the petition, Appellant claimed he was entitled to a refund of monies deducted from his inmate account pursuant to Act 84 because no procedural safeguards were in place when the deductions began. Recent decisions by this Court and the Third Circuit Court of Appeals confirm that, under the Due Process Clause of the Fourteenth Amendment, certain safeguards must be applied before the first Act 84 deduction is made in connection with a given criminal sentence. See Bundy v. Wetzel , 646 Pa. 248, 261, 184 A.3d 551, 558-59 (2018) ; Montanez v. Secretary Pa. DOC , 773 F.3d 472, 486 (3d Cir. 2014). The issue here is whether relief is available where the first deduction was made before those decisions were announced.
I.
In March 2013, Appellant was sentenced in two criminal matters to an aggregate term of approximately 20-to-40 years’ incarceration. As part of the sentences, Appellant was required to pay a total of $1,166 in costs and contributions to the Crime Victims’ Compensation Fund (the "Victims’ Fund"). In light of these financial obligations, the Department of Corrections began deducting monies from Appellant's inmate account pursuant to Section 9728(b)(5) of the Sentencing Code. See 42 Pa.C.S. § 9728(b)(5) (authorizing such deductions), quoted in Bundy , 646 Pa. at 248-53, 184 A.3d at 553-54. These withdrawals are known as Act 84 deductions because the provision authorizing them was added to Section 9728 by Act 84 of 1998. See Act of June 18, 1998, P.L. 640, No. 84, § 4; Bundy , 646 Pa. at 253, 184 A.3d at 554. The Department made the first withdrawal in June 2013, without notifying Appellant in advance.
See Commonwealth v. Johnson , No. CP-51-CR-4929-2007, Sentencing Order (C.P. Phila. Mar. 15, 2013) (showing a balance due of $448.50, all of it in court costs); Commonwealth v. Johnson , No. CP-51-CR-1587-2009, Sentencing Order (C.P. Phila. Mar. 15, 2013) (showing a balance due of $717.50, all in court costs except $60, which is owed to the Victims’ Fund).
In July 2013, upon learning of the deduction, Appellant filed an internal grievance questioning whether it was lawful. A prison counselor responded by stating that the deduction was, indeed, lawful in light of Act 84 and the financial responsibilities imposed on Appellant as part of his criminal sentences. The prison counselor added that the deductions would cease once Appellant's monetary obligations were paid in full.
In 2014, the federal court in Montanez held that, under the Due Process Clause, administrative pre-deprivation process was required. In particular, prior to the first Act 84 deduction the Department must notify the affected inmate of: the Department's policy concerning Act 84 deductions; the amount of his total obligation to the Commonwealth; the rate at which funds are to be deducted; and which funds will be subject to such withdrawals. Under Montanez , the Department must also give the inmate (again, prior to the first deduction) a reasonable opportunity to object as a means of avoiding any potential errors in the application of the Department's policy. See Montanez , 773 F.3d at 486.
Four years later, in 2018, this Court addressed the same due process issue in Bundy , and it reached a holding consistent with Montanez . See Bundy , 646 Pa. at 261, 184 A.3d at 558. Bundy observed that administrative pre-deprivation procedures are useful because, as Montanez had observed, they can help prevent errors before they occur. See id . at 258, 184 A.3d at 557 (recognizing a "general preference that procedural safeguards apply in the pre-deprivation timeframe"). The Bundy Court also noted that, in circumstances where procedural safeguards are not feasible in the pre-deprivation timeframe, the availability of a meaningful post-deprivation remedy satisfies the Due Process Clause. See id . at 258-59, 184 A.3d at 557 (citing cases).
In terms of Act 84 deductions, Bundy enumerated certain types of errors that could potentially be avoided, including: deductions from funds outside Act 84's reach (such as veterans’ benefits and social security benefits); withdrawals predicated on an erroneous financial obligation; deductions from the wrong inmate's account; and deductions inconsistent with an installment plan approved by the sentencing court. See id . at 260, 184 A.3d at 558 (citing cases and statutes).
Shortly after Bundy was issued, Appellant filed a grievance complaining that he never received pre-deprivation process as required by Bundy , and asking for a refund of all funds the Department had deducted since 2013, which totaled approximately $860. The Department denied the request for monetary relief, noting that Appellant had failed to provide documentation demonstrating that an assessment notice the Department previously issued relative to his financial obligations was in error. Still, the Department stated it would suspend further deductions for three weeks in order to give Appellant a chance to provide such documentation. Appellant did not forward any such documentation. Instead, he lodged an administrative appeal, expressing that the suggested post-deprivation remedy was insufficient in light of Bundy . The Department denied the appeal.
Appellant then filed a petition for review in the Commonwealth Court, directed to its original jurisdiction, and naming as respondents various employees of the Department. In his petition, Appellant stated a claim for replevin based on the Department's failure to comply with the procedures mandated in Bundy . He thus sought to recover the $860 the Department had deducted from his inmate account, together with interest and fees. He also requested nominal damages.
For convenience, the respondents (Appellees herein) will be referred to collectively as the Department.
The Commonwealth Court granted Appellant's request to proceed in forma pauperis .
Separately, Appellant alleged his due process rights were violated in that he should have received an administrative ability-to-pay hearing predicated on an alleged change in his circumstances. In this respect, Appellant referenced a passage in Bundy which clarified that, under prevailing Pennsylvania law as established by the Commonwealth Court, prisoners are entitled to an ability-to-pay hearing with regard to Act 84 deductions when there has been a material change of circumstances such as a threat of additional confinement, or increased supervision, as a result of unpaid financial obligations. Bundy noted that, under the Commonwealth Court's rationale, a valid issue arises as to whether that rule should be extended to encompass a situation where the Act 84 deductions interfere with the prisoner's ability to obtain meaningful merits review of the financial aspects of his sentence, his ability to litigate a PCRA petition, or the like. See Bundy , 646 Pa. at 261-62, 184 A.3d at 559.
After the Department preliminarily objected, Appellant was granted leave to file an amended petition. In it, he incorporated by reference the allegations in his first petition, and added a new cause of action purportedly sounding in negligence. Specifically, Appellant alleged that the prison counselor had negligently misinformed him in 2013 that the Act 84 deductions were lawful. He averred, more generally, that the Department was negligent in its administration of his inmate account because it withdrew funds without giving him the process which was due. In terms of relief, Appellant again asked for a refund of the monies the Department had withdrawn from his account, together with interest, fees, and nominal damages.
The Department filed preliminarily objections in the nature of a demurrer. It maintained that Act 84 gave it the authority to effectuate the deductions based on the sentencing orders, and that, in light of Buck v. Beard , 583 Pa. 431, 879 A.2d 157 (2005), the Department was not required to provide an ability-to-pay hearing before the first deduction.
Insofar as Appellant's claim pertained to alleged negligence, the Department made several arguments. First, it stated that the two-year limitations period pertaining to negligence claims had begun to run when the first deduction was made in 2013, and that it expired well before Appellant filed his petition for review in 2018. In any event, the Department continued, it was not clearly established under Pennsylvania law in 2013 – before Montanez or Bundy were decided – that the Department had a constitutional obligation to implement procedural safeguards before the first Act 84 deduction was effectuated. Thus, according to the Department, there was no standard of care pursuant to which the Department was required to afford pre-deprivation process, and, moreover, the Department was immunized from liability under the doctrine of qualified immunity, which shields government officials from lawsuits based on allegedly unconstitutional actions so long as those officials did not violate individual rights which were clearly established at the time, and about which a reasonable government official would have known. See Pearson v. Callahan , 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L.Ed.2d 565 (2009) ; Montanez , 773 F.3d at 487-88. Finally, the Department contended that, in essence, Appellant's allegations referred to intentional, not negligent, conduct – specifically, the Department's intentional withdrawal of money from his account, and the prison counselor's intentional statement to Appellant in 2013 that the deductions were lawful – and that recovery for intentional conduct by the state is precluded under the doctrine of sovereign immunity.
Referencing Davis v. Commonwealth , 660 A.2d 157 (Pa. Cmwlth. 1995), the Department asserted that an affirmative defense based on the statute of limitations may be raised in preliminary objections where it appears on the face of the pleading to which objections are being raised. See id . at 159 n.2.
Appellant filed preliminary objections to the Department's preliminary objections, asserting that: the two-year time bar for negligence claims did not apply because the Department was guilty of fraudulent concealment; qualified immunity was inapplicable because Bundy ’s due process requirements were clearly established in 2013 by various judicial decisions; and the Department's own internal policy statement, entitled DC-ADM-005 (relating to the collection of inmate debts), recognized as early as 2007 that the Department was supposed to give him, prior to the first deduction, a memo informing him of the imminent deductions together with a copy of the official court documents relied on for such deductions.
Notably, Appellant did not aver that the policy document at that time required the Department to give the inmate an opportunity to object to the deductions.
In a non-precedential decision, the Commonwealth Court sustained the Department's preliminary objections and dismissed the petition for review. See Johnson v. Dep't of Corr. , No. 497 M.D. 2018, 2019 WL 2400295, at *12 (Pa. Cmwlth. June 3, 2019). The court initially deemed the amended petition's negligence assertion to have replaced the replevin claim in the initial petition. See id . at *5. The Commonwealth Court ultimately dismissed the purported negligence claim on the grounds asserted by the Department, i.e. , that Appellant's alleged harm stemmed entirely from intentional conduct. See id . The court then turned to what it termed the "Act 84 claims." Although Appellant had not raised any "Act 84 claims" as such, the phrase seems to be shorthand for a contention that the Act 84 deductions were invalid. In this regard, the court's reference to additional claims evidently stemmed from the amended petition's inclusion of various allegations under the headings, "Questions Involved," and "Allegations Common to All Claims." These assertions can be read as alleging that: the Department did not provide Appellant with a signed court order imposing financial responsibilities as part of his sentence; the Department did not hold an ability-to-pay hearing as required when there has been a change in circumstances – such as a threat of additional confinement or increased conditions of supervision as a result of unpaid financial obligations – or when the Act 84 deductions will materially hinder the prisoner's ability to obtain meaningful merits review of his sentence; and the Department violated due process when it made Act 84 deductions without pre-deprivation notice and an opportunity to be heard.
As to these contentions, the court first concluded that the costs included as part of Appellant's sentences did not depend on a signed court order because they were imposed by statutes stating that no such order is needed, see id . at *6 & n.10 (quoting 42 Pa.C.S. § 9721(c.1), 18 P.S. § 11.1101 ). The court additionally expressed that Appellant did not allege that he had experienced a relevant change of circumstances, and his PCRA docket sheets showed he was granted in forma pauperis status and was actively litigating his post-conviction matters. See id . at *7 & n.13.
To the extent Appellant argued that Section 9726 of the Sentencing Code required the common pleas court to consider his ability to pay, see 42 Pa.C.S. § 9726(c)(1), the intermediate court pointed out that that provision does not impose any obligation on the Department, and moreover, it only applies to fines, whereas Appellant's debt arose from court costs and a Victims’ Fund assessment. See Johnson , 2019 WL 2400295, at *8.
As for the due process claim, the court initially rejected the Department's qualified immunity argument, suggesting that several pre- Montanez Third Circuit decisions had clarified that, when pre-deprivation process can effectively prevent errors, that process is constitutionally required. See id . at *9. With that said, however, the court added that the due process claim accrued when the Department made its first Act 84 deduction from Appellant's account in 2013, with the result that the two-year statute of limitations had expired by the time Appellant filed his petition for review in 2018, see id . at *8-*10. See generally Morgalo v. Gorniak , 134 A.3d 1139, 1147-48 (Pa. Cmwlth. 2016) (holding that the two-year limitation period of Section 5524(6) of the Judicial Code applies to Act 84 deductions). In this latter regard, the court rejected Appellant's fraudulent-concealment argument on the basis that it implicates an inquiry into whether the plaintiff was reasonably diligent in informing himself of the facts on which he based his right to recover. The court determined that Appellant did not exercise adequate diligence as he could have inquired into the state of the law himself. To bolster its point, the court noted that Appellant had found all the relevant case precedent and departmental policy documents for purposes of the present litigation, and these existed and could just as easily have been found by him in 2013 when he received the counselor's response. See id . at *11.
Appellant lodged a direct appeal in this Court, raising a number of issues relating to the purported negligence cause of action and the due process claim, as well as his alleged entitlement to an administrative ability-to-pay hearing. He does not presently challenge the Commonwealth Court's determination that the negligence claim replaced the replevin cause of action appearing in the initial petition. At any rate, this Court observed in Bundy that replevin has been abolished in the context of an original-jurisdiction petition for review relative to a determination of a government unit. See Pa.R.A.P. 1502 ; Bundy , 646 Pa. at 255, 184 A.3d at 555. As explained below, the negligence and due process claims are one and the same. We will address those first, and then consider Appellant's argument relating to an ability-to-pay hearing.
II.
We will initially consider the purported negligence cause of action, which was set forth in the amended petition as follows:
20. Petitioner is an adult person being held by [the Department]. As such, petitioner has personal private property containing money which is in the care, custody and control of the respondents.
21. Accordingly, respondents owed the petitioner a duty to exercise reasonable care and diligence when handling the petitioner's inmate account which consisted of his personal private property.
22. At all relevant times to this action the respondents owed a duty to maintain, regulate and operate the petitioner's inmate account with ordinary care and diligence in a manner consistent with Federal Law and D.O.C. Policy.
23. Respondents breached their duties by failing to exercise ordinary care and reasonable diligence in maintaining, regulating and operating the petition's inmate account including: (a) Failing to give the petitioner notice and an opportunity to object to the Act 84 deductions before the first deduction; (b) failing to follow Federal and State Law and D.O.C. Policy when operating the petitioner's account by failing to give notice prior to the first deduction; (c) Failing to follow D.O.C. Policy DC-ADM 005 Sect. 3.A.2.d. when operating the petitioner's inmate account by failing to inform the petitioner of the deductions and his right to appeal the deductions.
24. Despite the fact that respondents knew that notice and an opportunity to object was required before making the first deduction (which is admitted by the respondents in their Grievance response, see, PFR-Exhibit-GR) the respondents proceeded to and continued to negligently deduct funds from petitioner's inmate account and continues [sic] to deduct funds till this day.
25. As a direct and proximate consequence of respondents negligent handling and operating of the petitioner's inmate account, the petitioner suffered injury and damages in the form of a complete 14th Amendment procedural due process violation which further resulted in actual monetary loss in excess of $859.80.
Johnson v. Wetzel , No. 497 MD 2018, Amended Petition for Review at ¶¶20-25 (Pa. Cmwlth.) (emphasis added).
Certain features of these allegations are worth highlighting. First, the sum and substance of the complaint as a whole, including the above allegations, is that the Department violated Appellant's procedural due process rights based on intentional conduct. Accord Brief for Appellees at 9 (observing that the transfer of funds from Appellant's account to satisfy court costs "was intentional, not negligent, conduct," and "[t]he failure to provide notice before commencing Act 84 deductions, does not render it a negligent taking"). Simply labeling the claim as one sounding in negligence does not make it so where the harm is alleged to have been caused by the Department's actions in deducting monies from Appellant's account pursuant to Act 84 and then telling him after the fact that the deductions were authorized by that statute.
This is not a situation such as that which arose in Parratt v. Taylor , 451 U.S. 527, 101 S. Ct. 1908, 68 L.Ed.2d 420 (1981), in which a prison employee's negligent handling of an inmate's personal property led to that property being lost or destroyed. See id . at 530, 101 S. Ct. at 1910. Indeed, such negligent conduct does not implicate the Due Process Clause. See Daniels v. Williams , 474 U.S. 327, 328, 106 S. Ct. 662, 663, 88 L.Ed.2d 662 (1986). Rather, and as can be seen from the complaint as a whole, this case involves an intentional monetary deduction from Appellant's account pursuant to statutory authority which is only contested on the basis of the alleged due process violation. Put differently, the conduct which is alleged to have fallen below a particular standard of care only relates to the lack of pre-deprivation process, and not to the deprivation itself.
Appellant did not allege that the monies in question were outside Act 84's reach based on factors such as those identified in Bundy . See supra note 2.
Even addressing the above negligence claim in isolation, it is internally inconsistent because Appellant avers that corrections employees "negligently deducted funds" from his account at a time when "they knew that notice and an opportunity to object was required before making the first deduction." We conclude, then, that the claim is properly read as alleging a deprivation of property through intentional conduct. That being the case, sovereign immunity shields the Department from liability. See PA. CONST. art. I, § 11 ; 1 Pa.C.S. § 2310 ; Sutton v. Bickell , ––– Pa. ––––, ––––, 220 A.3d 1027, 1035 (2019) (explaining that sovereign immunity protects the Department from liability in tort for intentional conduct undertaken within the scope of the party's employment (citing Justice v. Lombardo , –––, Pa. ––––, ––––, 208 A.3d 1057, 1067 (2019) )).
It may also be recognized that the harm alleged by Appellant – a loss of money from his account – constitutes an injury of which he admits he was aware as early as July 2013. See Johnson v. Wetzel , No. 497 MD 2018, First Petition for Review at ¶13 (Pa. Cmwlth.). As such, the two-year statute of limitations applicable to Act 84 deductions, see generally Morgalo , 134 A.3d at 1147 (analyzing 42 Pa.C.S. § 5524(6) ), had expired well before Appellant commenced this litigation in 2018, as the Department pointed out in its demurrer. See Johnson v. Wetzel , No. 497 MD 2018, Respondents’ Preliminary Objections to Petitioner's Amended Petition for Review at ¶¶19-23 (Pa. Cmwlth.).
Although Appellant argued that the limitations period was tolled in light of the Department's alleged fraudulent concealment, see Johnson v. Wetzel , No. 497 MD 2018, Petitioner's Answer to Respondents’ Preliminary Objections at ¶¶12-24 (Pa. Cmwlth.), that doctrine ordinarily pertains to conduct on the part of the defendant which "causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts." Fine v. Checcio , 582 Pa. 253, 271, 870 A.2d 850, 860 (2005) ; accord Appeal of Sepko , 84 Pa.Cmwlth. 359, 479 A.2d 665, 667 (1984) ; 1A Stuart M. Speiser et al ., AMERICAN LAW OF TORTS § 5:31 n.67 (1983 & Supp. 2020) ("Generally, the misrepresentations relied on must be misrepresentations of fact and not misrepresentations of law since all are presumed to know the law." (citation omitted)). This Court has never applied it to an assertion that the defendant misrepresented the current state of the law .
Some states, proceeding under an "estoppel" or "good cause" rubric, have allowed an untimely filing where the plaintiff was misled as to the statute of limitations. See, e.g. , Ginns v. Savage , 61 Cal.2d 520, 39 Cal.Rptr. 377, 393 P.2d 689, 691-92 (1964) ; Tex. Emp'rs’ Ins. Ass'n v. Dickson , 489 S.W.2d 655, 657 (Tex. Civ. App. 1972). Here, however, Appellant does not allege that the Department misrepresented the statute of limitations, and it is uncontested that he became aware of his underlying injury, i.e. , the deduction of money from his account, almost immediately after it occurred. Moreover, inmates are not assumed to be ignorant of the law particularly as it relates to the satisfaction of monetary obligations imposed at sentencing. See Buck , 583 Pa. at 436, 879 A.2d at 160 (explaining that, because the prisoner plaintiff was convicted after Act 84 went into effect, he was on notice of the Department's statutory authority to deduct funds from his account).
In all events, Appellant included within the purported negligence contention an averment that the Department "knew that notice and an opportunity to object was required before making the first deduction." This again clarifies that Appellant's cause of action does not sound in negligence, or even in an intentional tort such as conversion that he has failed to assert – but in procedural due process. The question, then, is whether Appellant is entitled to relief on his due process claim.
III.
To review, prisoners are entitled, under the Due Process Clause of the Fourteenth Amendment, to notice of certain items and a reasonable opportunity to object before the first Act 84 deduction is made. These items include the Department's Act 84 deduction policy, the prisoner's total monetary obligation to the Commonwealth, the rate at which funds will be deducted from his account, and the funds which will be subject to withdrawals. See Bundy , 646 Pa. at 261, 184 A.3d at 558. This case differs from Bundy in that the first Act 84 deduction occurred before either Montanez or Bundy was decided. Until those decisions were announced, no reported judicial decision had held that every inmate in the Department's custody from whose account Act 84 deductions would be made was entitled to such process.
Still, individuals in Appellant's position are placed in a difficult position as their first Act 84 deduction occurred before the holdings in Bundy and Montanez were announced. Plainly, such individuals could not have relied on those decisions as a basis to demand pre-deprivation procedural safeguards. These individuals, moreover, may have had grounds such as those outlined in Bundy to challenge the validity of the Department's deduction plan.
With the above in mind we note that, when pre-deprivation process is not feasible – meaning that the state is not in a position to provide it – "the availability of a meaningful post-deprivation remedy satisfies due process." Bundy , 646 Pa. at 258-59, 184 A.3d at 557 (citing Zinermon v. Burch , 494 U.S. 113, 128, 110 S. Ct. 975, 984-85, 108 L.Ed.2d 100 (1990) ). We now hold that that aspect of Bundy applies to inmates whose accounts were subject to Act 84 deductions without the benefit of pre-deprivation safeguards. Thus, due process requires that the Department, in response to an administrative grievance which accurately recites that no Bundy process was afforded prior to the first Act 84 deduction, must give the grievant notice of the items required by Bundy and a reasonable opportunity to explain why the past and/or intended deductions should not take place notwithstanding the dictates of Act 84. Any meritorious challenge along these lines would then implicate the substantive remedy of restoring the prisoner's wrongly-deducted funds to his or her account.
To clarify, for a challenge to be meritorious, it is not enough that pre-deprivation procedures were not afforded to the grievant. He must also identify some substantive basis to conclude the Act 84 deductions were, or would be, contrary to law.
IV.
We now apply the above holding to this case. The record reflects that, in response to Appellant's grievance in June 2018 concerning the lack of pre-deprivation process, SCI-Rockview suspended deductions for three weeks to give Appellant an opportunity to challenge their the legitimacy. See Johnson v. Wetzel , No. 497 MD 2018, First Petition for Review at Exh. GR (Pa. Cmwlth.) (Grievance Response No. 742476). Although this type of temporary suspension is consistent with the "fundamental [due process] requirement" that the individual have an "opportunity to be heard at a meaningful time and in a meaningful manner," Commonwealth v. Maldonado , 576 Pa. 101, 108, 838 A.2d 710, 714 (2003) (quoting Mathews v. Eldridge , 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L.Ed.2d 18 (1976) ), the record does not clarify whether all of the information contemplated by Bundy and Montanez was given to Appellant when the deductions were temporarily suspended. As recited above, these items include the Department's Act 84 deduction policy; the amount of Appellant's total financial obligation to the government; the rate at which funds will be deducted; and the identity of the funds subject to withdrawal. Thus, we will remand the matter for further factual development on this topic and an appropriate procedural remedy if one is required.
V.
Finally, Appellant renews his argument that he was entitled to an administrative ability-to-pay hearing before the Department. He faults the Commonwealth Court for focusing solely on whether he might be subject to additional confinement or increased supervision as a result of not meeting his financial obligations. Appellant posits that this type of issue is distinct from the other concern expressed in Bundy that could support entitlement to an ability-to-pay hearing: namely, that a prisoner's capability of obtaining meaningful merits review of the financial aspects of his sentence should not be substantially encumbered by the Department's Act 84 deductions. See Brief for Appellant at 20-21.
By way of background, on remand from this Court's decision in Bundy , the Commonwealth Court reviewed its own jurisprudence on which this Court had relied, and concluded that Bundy should be read as requiring an administrative ability-to-pay hearing only where a material change in circumstances occurs between sentencing and the first Act 84 deduction. See Bundy v. Wetzel , No. 553 M.D. 2016, 2019 WL 1613026, at *8 (Pa. Cmwlth. Apr. 12, 2019) (" Bundy II "); see also Stewart v. Office of Clerk for Cumberland Cty. Common Pleas Court , No. 361 M.D. 2018, 2019 WL 3986268, at *7 (Pa. Cmwlth. Aug. 23, 2019) (following Bundy II and requiring proof of "a sufficient change in circumstances between the time of sentencing and the time of collection to trigger a pre-deduction hearing on [the inmate's] ability to pay court-imposed fines"). Appellant does not challenge the Commonwealth Court's prevailing interpretation of this Court's holding in Bundy , and thus, we have no occasion to address it in the present appeal. Insofar as this dispute is concerned, the relevant facet of Bundy – the one on which Appellant presently relies – suggests that the circumstances in view can relate, not only to increased conditions of supervision and the like, but to an inability to "obtain meaningful merits review of the financial aspects of his sentence through direct appeal or post-conviction proceedings." Bundy , 646 Pa. at 262, 184 A.3d at 559.
Appellant's claim ultimately fails on two grounds. First, he has not stated that the alleged change in circumstances occurred between sentencing and the first Act 84 deduction as required under prevailing law per the explanation above. Even putting that omission aside in light of the customary leniency with which we construe pro se , prison-drawn allegations, see Sutton v. Bickell , ––– Pa. ––––, ––––, 220 A.3d 1027, 1035 (2019) (citing Bundy , 646 Pa. at 261, 184 A.3d at 559 ), Appellant proceeds from a faulty premise. Although the Commonwealth Court did observe that Appellant had failed to allege he would be subject to additional confinement or increased conditions of supervision due to his failure to pay his costs, see Johnson , 2019 WL 2400295, at *8, it separately rejected the alternative proposed basis for an ability-to-pay hearing, reasoning that Appellant
does not aver that his PCRA actions are hindered by the alleged change in circumstances. A review of the dockets for Johnson's various PCRA actions, the docket numbers of which are included in an attachment to the [first p]etition, reveals that Johnson was granted in forma pauperis status and is actively litigating those cases.
Id. at *7 n.13 (citing First Complaint Exh. CS1; Superior Court Docket Nos. 3497 EDA 2017, 450 EDA 2018, 879 EDA 2018). Our own review of those docket sheets, as well as another matter included in Exhibit CS2, Commonwealth v. Johnson , 51 EM 2018 (Pa.), confirms that the matters have all been litigated to completion, thus rendering the present issue moot. That being the case, we will affirm the Commonwealth Court's ruling that Appellant is not entitled a departmental ability-to-pay hearing.
VI.
In sum, we reach the following holdings: in substance, Appellant raises a single due process claim and no distinct negligence claim; where an inmate, whose Act 84 deductions began before Bundy and Montanez were decided, grieves those deductions by accurately reciting that no Bundy process was afforded prior to the first one, due process mandates that the Department afford post-deprivation process analogous to the pre-deprivation procedures required by Bundy ; further development is required to determine whether the Department has already supplied Appellant with adequate post-deprivation process; and Appellant has failed set forth a valid basis to implicate an administrative ability-to-pay hearing. The order of the Commonwealth Court is affirmed in part and vacated in part. It is affirmed insofar as it dismissed Appellant's claims relating to negligence and an administrative ability-to-pay hearing. It is vacated to the extent it dismissed Appellant's claim relating to due process. The matter is remanded for further proceedings consistent with this opinion.
Justices Baer, Todd, Dougherty and Mundy join the opinion.
Justice Wecht files a concurring and dissenting opinion in which Justice Donohue joins.
JUSTICE WECHT, concurring and dissenting
I join the Majority's important holding that the due process protections outlined in Bundy v. Wetzel , 646 Pa. 248, 184 A.3d 551 (2018), "appl[y] to inmates whose accounts were subject to Act 84 deductions without the benefit of pre-deprivation safeguards." Maj. Op. at 1182–83. Accordingly, I agree that further factual development upon remand is required to determine whether Aquil Johnson was afforded these due process protections. See id. at 1183–84. Additionally, I agree with the Majority that Johnson was not entitled to an ability-to-pay hearing. See id. at 1183–84. Unlike the Majority, however, see id. at 1179–83, it is apparent to me that Johnson has pleaded a viable negligence claim at this stage of the litigation. And I would hold that the question of whether the statute of limitations should be tolled because of alleged fraudulent concealment by the Department of Corrections ("DOC") is a question for the factfinder. Thus, I respectfully dissent from the Majority's decision to affirm the Commonwealth Court's dismissal of Johnson's negligence claim.
See Act of June 18, 1998, P.L. 640, No. 84, § 4 (codified at 42 Pa.C.S. § 9728 ).
I. Negligence
DOC has lodged preliminary objections to Johnson's negligence claim in the form of a demurrer. "[W]hen this Court reviews rulings on preliminary objections, we deem all material facts averred in the complaint, and all reasonable inferences that can be drawn therefrom, to be true." Commonwealth by Shapiro v. Golden Gate Nat'l Senior Care LLC , 648 Pa. 604, 194 A.3d 1010, 1022 (2018). Thus, we must accept all of Johnson's factual averments as true at this stage of the litigation.
The standard for determining whether a claim can survive preliminary objections is a liberal one. "The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it." MacElree v. Phila. Newspapers, Inc. , 544 Pa. 117, 674 A.2d 1050, 1054 (1996) (citation and internal quotation marks omitted); see also Golden Gate , 194 A.3d at 1022 ("When sustaining the trial court's ruling will result in the denial of claim or a dismissal of suit, preliminary objections will be sustained only where the case is free and clear of doubt.") (citation and internal quotation marks omitted).
Johnson's Amended Petition for Review divides his factual allegations into two sections. First, Johnson makes "allegations common to all claims." Amended Petition for Review ("Amended Petition"), 497 MD 2018, at 4 (capitalization modified). In this section of the Amended Petition, Johnson writes that he "consulted with the inmate counselor Scott Gaines through request slip inquiring about the nature of the deduction" at issue in this case. Id. ¶ 16. According to Johnson, "Counselor Scott Gaines told [Johnson] that the deductions were lawful and that the only way to stop them is to pay the full amount of money owed." Id. To support this narrative, Johnson cites Exhibit-FC of his original Petition for Review. That exhibit is an "Inmate's Request to Staff Member" submitted by Johnson to Gaines. See Petition for Review, 497 MD 2018, Exhibit-FC. After Johnson asked Gaines why money was deducted from his account, Gaines wrote back: "The inmate accounts office informed me the Act 84 withdraw[al]s are lawful taking of money from your inmate account to pay the amount of restitution and fines you owe which will only be stopped if you pay the full amount." Id.
The next section of Johnson's Amended Petition makes factual allegations related to "negligence in handling [Johnson's] private personal property." Amended Petition at 6 (capitalization modified). Despite this section of the complaint being devoted to the negligence claim, Johnson seemingly alleges intentional conduct by DOC. For example, Johnson avers that DOC "knew that notice and an opportunity to object was required" and that, despite this knowledge, DOC "proceeded to and continued to negligently deduct funds from [Johnson's] inmate account and continues to deduct funds till this day." Id. ¶ 24 (emphasis added).
The Majority correctly concludes that Johnson's allegations in paragraphs sixteen and twenty-four appear to be "internally inconsistent." Maj. Op. at 1181. However, whereas the Majority would resolve that inconsistency by concluding that Johnson has not stated a viable claim for negligence, I instead would apply our previous instruction that the Commonwealth Court could not dismiss Johnson's claim unless "the law says with certainty that no recovery is possible." MacElree , 674 A.2d at 1054 (citation and internal quotation marks omitted). Reading the allegations in the light most favorable to Johnson, as the plaintiff, I cannot join the Majority or the Commonwealth Court in concluding with certainty that Johnson has not pleaded a claim for negligence.
I note that neither the Majority nor the Commonwealth Court hold that Johnson's negligence claim falters for any reason aside from the belief that Johnson has alleged intentional conduct only.
In paragraph sixteen, Johnson alleges that Gaines, as a representative of DOC, negligently informed him that the deduction of funds from his account without notice was a "lawful taking of money." Exhibit-FC. At this stage of the litigation, we must accept the conclusion that Gaines’ reliance upon the accounts office's information was a negligent action because our precedent requires that "all reasonable inferences that can be drawn" from the facts averred in a complaint "be [deemed] true." Golden Gate , 194 A.3d at 1022 (emphasis added). It is a reasonable inference that Gaines did not knowingly tell Johnson that the deductions were legally sound. It is reasonable to believe that Gaines did not research the issue of deductions himself and gain such knowledge. Paragraph sixteen of the Amended Petition does not allege that Gaines had such knowledge, and, without proof that such an inference is unreasonable, this Court cannot affirm the dismissal of Johnson's negligence claim upon such a basis. But to further illustrate why paragraph sixteen alleges negligent conduct, we need not rely solely upon inferences from Johnson's complaint. After Johnson filed a grievance with DOC, DOC itself told Johnson that it "cannot provide an explanation as to what happened to the original notice." Petition for Review, 497 MD 2018, Exhibit-GR. DOC did not assert that Gaines purposefully misled Johnson as to the legality of the deductions. DOC did not tell Johnson that Gaines knowingly conveyed false information. Nor did DOC say that Gaines even recklessly allowed the deductions to continue. Without any affirmative proof in the record to show that the actions of Gaines and DOC were anything other than negligent, we have no choice but to accept as true Johnson's allegation of negligence for the purposes of adjudicating DOC's demurrer.
To be sure, Johnson's complaint is not the most artfully drafted petition for review. That Johnson mentions intentional conduct in the section of the Amended Petition pertaining to the negligence claim perhaps sows some confusion, and ultimately leads the Majority astray. This allegation of intentional conduct does raise doubts as to the true nature of Johnson's claim. But "[w]here a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it." MacElree , 674 A.2d at 1054 (citation and internal quotation marks omitted). Johnson never disavows his allegation of the negligent conduct from paragraph sixteen. Faced with a possible inconsistency, our precedent demands that we construe the two provisions to serve the advancement of Johnson's claims if possible. In this case, such a construction is possible. Thus, I would hold that Johnson has stated a claim for negligence that is sufficient to survive DOC's preliminary objections. Having concluded that Johnson has pleaded a viable negligence claim, I proceed to examine DOC's assertions that the claim nonetheless should be dismissed because of qualified immunity and the statute of limitations.
The Majority notes that "negligent conduct does not implicate the Due Process Clause." Maj. Op. at 1181 (citing Daniels v. Williams , 474 U.S. 327, 328 (1986) ). There is nothing to stop Johnson from making claims sounding in both intentional and negligent conduct at this stage of the litigation. See Brezenski v. World Truck Transfer, Inc. , 755 A.2d 36 (Pa. Super. 2000) (adjudicating claims relating to intentional infliction of emotional distress and negligent infliction of emotional distress related to the same underlying facts at the summary judgment stage of the litigation).
Although I conclude that Johnson's negligence claim survives DOC's preliminary objections under this Court's precedent, I also note that the Commonwealth Court has adopted an even more liberal standard for reading complaints submitted by pro se litigants. Relying upon case law from the Supreme Court of the United States, the Commonwealth Court logically has found that "the allegations of a pro se complaint ... are held to a less stringent standard than that applied to the formal pleadings drafted by attorneys." Reider v. Bureau of Corr. , 502 A.2d 272, 273 (Pa. Cmwlth. 1985) (en banc ) (citing Haines v. Kerner , 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (noting that the High Court "holds" a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers")). See also Danysh v. Dep't of Corr. , 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004) (en banc ) ("The allegations of a pro se complainant are held to a less stringent standard than that applied to pleadings filed by attorneys."), aff'd , 584 Pa. 122, 881 A.2d 1263 (2005) ; Dep't of Corr. v. Tate , 133 A.3d 350, 354 n.8 (Pa. Cmwlth. 2016) (same).
This Court has held that pro se litigants cannot be excused for failing to abide by procedural rules. See Peters Creek Sanitary Auth. v. Welch , 545 Pa. 309, 681 A.2d 167, 170 n.5 (1996). And this Court has noted that the High Court's decision in Haines "does not say that a pro se defendant is entitled to special treatment at trial." Commonwealth v. Blakeney , 946 A.2d 645, 656 n.5 (Pa. 2008). But this Court has not overruled Reider , Danysh , Tate , or any other Commonwealth Court decision regarding the standard for interpreting a pro se litigant's complaint.
Thus, although the Commonwealth Court's relaxed standard for pro se litigants is not binding upon this Court, those published decisions bind the Commonwealth Court itself, especially in an unpublished memorandum such as the decision below. See Pries v. Workers’ Comp. Appeal Bd. (Verizon Pa.) , 903 A.2d 136, 144 (Pa. Cmwlth. 2006) ("Under stare decisis , we are bound to follow the decisions of our Court unless overruled by the Supreme Court or where other compelling reasons can be demonstrated."). It does not appear that the Commonwealth Court took into account its own published decisions when reviewing Johnson's Amended Petition. Application of the Commonwealth Court's own pro se litigant standard adds further support to the contention that the lower court erred by dismissing the negligence claim.
II. Qualified Immunity
DOC argues that Johnson's claims "are barred by qualified immunity." DOC's Brief at 16. "The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal quotation marks and citation omitted). Qualified immunity applies to actions in which an individual alleges a violation of his or her federal constitutional rights under 42 U.S.C. § 1983. See Plumhoff v. Rickard , 572 U.S. 765, 778, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) ("An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.") (internal quotation marks omitted). DOC does not specifically argue that qualified immunity should bar Johnson's negligence claim, which is a state common law cause of action. See DOC's Brief at 16-17. Even assuming that qualified immunity, or some similar doctrine, should apply to Johnson's negligence claim, the Commonwealth Court, in a thorough analysis, rejected the argument that DOC employees enjoyed qualified immunity:
Johnson asserts it was clearly established by June 2013 that he should have received pre-deprivation notice and an opportunity to object prior to the first deduction being made. The first case that definitely addressed the issue, Montanez v. Secretary of Pa. Dep't of Corr. , 773 F.3d 472 (3d Cir. 2014), was not decided until 2014, after the first deduction occurred. This Court, as late as 2016, held that Montanez was only instructive and not binding. Dep't of Corr. v. Tate , 133 A.3d 350, 358 n.11 (Pa. Cmwlth. 2016). It was not until 2018 when the Supreme Court decided Bundy I , that it was clear that such pre-deprivation process was required for Act 84 deductions as a matter of state law. However, the other federal and Pennsylvania cases Johnson relies upon, which [DOC] do[es] not address in their brief, do constitute at least a consensus of persuasive authority suggesting that "a reasonable [government official] could not have believed that [the official's] actions were lawful." Wilson v. Layne , 526 U.S. 603, 617 (1999).
In 2002, the United States Court of Appeals for the Third Circuit held in Higgins v. Beyer , which involved deductions from an inmate's federal veteran's disability benefits that had been deposited in his inmate account, that the inmate
had stated a claim for a violation of his due process rights because the prison officials did not provide him with pre-deprivation notice and hearing prior to deducting the money, in which he had a property interest. 293 F.3d 683, 691, 693-94 (3d Cir. 2002). In 2009, the Third Circuit issued a decision, Montanez v. Beard , vacating and remanding the dismissal of a group of inmates' due process claims based on the withdrawal of monies for court-ordered costs and restitution under Act 84 without notice or an opportunity to object. 344 F. App'x 833, 834-35 (3d Cir. 2009). The Court held that it had addressed the issue before in a non-precedential opinion in 2006 and that, as in that prior decision, the inmates "allege[d] sufficient facts to support a [ ] claim ... that [they were] deprived of [their] rights under the Due Process Clause of the Fourteenth Amendment." Id. at 837 (citing Hale v. Beard , 168 Fed. App'x. 532 (3d Cir. 2006) (emphasis added)). In 2011, the Third Circuit held, in Burns v. Department of Corrections , that the Department's assessment of an inmate's account for medical expenses imposed as a part of the inmate's internal discipline for a fight was an "impairment of a cognizable property interest" and that the inmate was "entitled to due process with respect to any deprivation of money" from his account. 544 F.3d 279, 281, 286 (3d Cir. 2008) (emphasis added). Notably, in the Third Circuit's 2014 Montanez decision, the Court cited its 2009 decision in that case, Hale , Burns , Higgins , and Reynolds v. Wagner , 128 F.3d 166, 179 (3d Cir. 1997), and held that "[t]aken together, these cases make clear that when pre-deprivation process could be effective in preventing errors, that process is required." Montanez , 773 F.3d at 484 (emphasis added).
Johnson also asserts there are decisions from this Court, filed before the deductions from his account began in 2013, which similarly provide that where money is taken from an inmate's account, due process requires the inmate be given reasonable notice and an opportunity to be heard prior to the deduction. Holloway v. Lehman , 671 A.2d 1179, 1181-82 (Pa. Cmwlth. 1996). Johnson notes that Holloway has been the law since 1996 and had been cited in numerous published cases prior to 2013. In addition, Johnson cites the Department's Policy, Section 3 of DC-ADM 005, which sets forth the procedures for the collection of inmate debts. Johnson asserts the Policy's requirement that an inmate is entitled to a "Notification of Deductions Memo," has been in effect since 2007, and that requirement was recognized in the response he received to his grievance, which stated that there was no "explanation as to what happened to the original notice" in 2013. (Johnson's Br. at 26; Initial Petition, Ex. GR.) While the Department's administrative policies do not create rights for inmates, Shore v. Pennsylvania Department of Corrections , 168 A.3d 374, 386 (Pa. Cmwlth. 2017), and [DOC] state[s] in their brief that Section 3 was changed "to meet the requirements outlined in" Montanez , ( [DOC's] Br. at 12 n.2), the response to Johnson's grievance, which upheld the lack of notice part of the grievance, suggests some kind of pre-deduction notice was the norm, even in 2013.
Reviewing these cases and the allegations, we cannot agree with [DOC] that it is clear on the face of the pleadings that they would be entitled to qualified immunity to allow this defense to be raised as a preliminary objection or that
Johnson has not stated a claim upon which relief can be granted based on their having immunity. Therefore, Johnson's [preliminary objection] challenging the demurrer on that basis is sustained, and [DOC's preliminary objection] is stricken.
Johnson v. Wetzel , 497 MD 2018, 2019 WL 2400295, at *8-9 (Pa. Cmwlth. June 3, 2019) (citations modified). I would adopt this reasoning and hold that, assuming arguendo that qualified immunity or a similar doctrine applied to Johnson's negligence claim, the due process rights highlighted by this Court in Bundy were "clearly established at the time of the challenged conduct," Plumhoff , 572 U.S. at 778, 134 S.Ct. 2012 (internal quotation marks omitted), i.e. , when Johnson first was deprived of pre-deprivation notice and an opportunity to object in June 2013.
III. Fraudulent Concealment
Finally, the Commonwealth Court held that Johnson's claim was barred by the statute of limitations and that Johnson could not show that the statute was tolled under the doctrine of fraudulent concealment. See Johnson , 2019 WL 2400295, at *10-11. The statute of limitations for a negligence claim is two years. 42 Pa.C.S. § 5524. Johnson avers that the first Act 84 deduction occurred in June 2013. He did not file suit until July 2018. Thus, Johnson's negligence claim facially is time-barred, unless the statute of limitations was tolled for some reason.
Johnson alleges that the doctrine of fraudulent concealment tolls the statute here. As this Court previously has explained:
[T]he doctrine of fraudulent concealment serves to toll the running of the statute of limitations. The doctrine is based on a theory of estoppel, and provides that the defendant may not invoke the statute of limitations, if through fraud or concealment, he causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts. Deemer v. Weaver , 324 Pa. 85, 187 A. 215, 215 (1936). The doctrine does not require fraud in the strictest sense encompassing an intent to deceive, but rather, fraud in the broadest sense, which includes an unintentional deception. Id. The plaintiff has the burden of proving fraudulent concealment by clear, precise, and convincing evidence. Molineux v. Reed , 516 Pa. 398, 532 A.2d 792, 794 (1987). While it is for the court to determine whether an estoppel results from established facts, it is for the jury to say whether the remarks that are alleged to constitute the fraud or concealment were made. Nesbitt v. Erie Coach Co. , 416 Pa. 89, 204 A.2d 473, 476 (1964).
Fine v. Checcio , 582 Pa. 253, 870 A.2d 850, 860 (2005) (citations modified).
Although this Court captioned the case "Fine v. Checcio," it appears that we may have misspelled the latter party's surname. The Superior Court captioned the case as "Fine v. Checchio." See Fine v. Checchio , 2757 EDA 2002, 829 A.2d 369 (Pa. Super. 2003) (table); Fine v. Checchio , 2757 EDA 2002, 890 A.2d 1110 (Pa. Super. 2005) (table). And when a party attempted to appeal the case to this Court a second time, we used "Checchio." See Fine v. Checchio , 587 Pa. 706, 897 A.2d 1184 (2006) (per curiam ) (denying allocatur ).
A. Misrepresentations of Law
As an initial matter, the Majority asserts that "[t]his Court has never applied" the doctrine of fraudulent concealment "to an assertion that the defendant misrepresented the current state of the law ," as opposed to the defendant misrepresenting a fact. Maj. Op. at 1181–82 (emphasis in original). In Fine , this Court did state that the doctrine applies if a defendant "causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts ." Fine , 870 A.2d at 860 (emphasis added). However, the alleged concealments in Fine were based upon misrepresentations of fact. See id. at 862 ("Fine based his assertion for the application of the doctrine on post-surgery statements he attributed to Dr. Checc[h]io."); id. at 863 ("This is because the record shows that the statements that Dr. Rice made to Ward about the numbness during post-operative visits are disputed."). Although this Court used the phrase "inquiry into the facts" in Fine , it does not appear that we considered whether the doctrine of fraudulent concealment would apply to a misrepresentation of law. Thus, this issue is one of first impression.
Some courts in other jurisdictions have allowed misrepresentations of law to serve as the basis for fraudulent concealment. See, e.g. , Ritchie v. Clappier , 109 Wis.2d 399, 326 N.W.2d 131, 133 (1982) ("Where one who has had superior means of information professes a knowledge of the law, and thereby obtains an unconscionable advantage of another who is ignorant and has not been in a situation to become informed, the injured party is entitled to relief as well as if the misrepresentation [of law] had been concerning matter of fact.") (internal quotation marks and citation omitted); Tompkins v. Hollister , 60 Mich. 470, 27 N.W. 651, 654-55 (1886) ("The statute, however, by its terms, refers to the fraudulent concealment of the cause of action, which would be applicable to a concealment of law as well as of fact."). Other courts have limited the doctrine to misrepresentations of fact. See, e.g. , Rice v. Ragsdale , 104 Ark. App. 364, 292 S.W.3d 856, 864 (2009) ("As a general rule, fraud cannot be predicated upon misrepresentations as to matters of law, nor upon opinions on questions of law based on facts known to both parties."); Feit v. Donahue , 826 P.2d 407, 412 (Colo. App. 1992) ("However, if the representation concerns law, not fact, it is an expression of opinion and is not actionable.").
"As described by the Supreme Court [of the United States] more than a century ago, the purpose of the fraudulent-concealment doctrine is to prevent a defendant from ‘concealing a fraud, or ... committing a fraud in a manner that it concealed itself until such time as the party committing the fraud could plead the statute of limitations to protect it.’ " New York v. Hendrickson Bros., Inc. , 840 F.2d 1065, 1083 (2d Cir. 1988) (quoting Bailey v. Glover , 88 U.S. (21 Wall.) 342, 349, 22 L.Ed. 636 (1874) ). The fraudulent concealment doctrine, which is based upon estoppel, has its basis in equity. Courts employing this doctrine have applied it broadly. See Holmberg v. Armbrecht , 327 U.S. 392, 397, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ("This equitable doctrine [of fraudulent concealment] is read into every federal statute of limitation."); see also Richard F. Schwed, Fraudulent Concealment, Self-Concealing Conspiracies, and the Clayton Act , 91 MICH. L. REV. 2259, 2262 (1993) ("Even without any basis in statutory language, courts have long been willing to toll statutes of limitation."). In Pennsylvania, in particular, we have interpreted fraud "in the broadest sense ." Fine , 870 A.2d at 860 (emphasis added). The breadth of the doctrine and its remedial nature might justify including particular misrepresentations of law under the doctrine of fraudulent concealment. However, because I find that Johnson's allegation of fraudulent concealment, for the purposes of surviving preliminary objections, is an implied misrepresentation of fact, I do not believe there is any need to reach the issue of whether a misrepresentation of law alone falls under the doctrine of fraudulent concealment.
In particular, other courts have opined that misrepresentations of law should toll statutes of limitations under the doctrine of fraudulent concealment where the plaintiff is especially vulnerable to relying upon the defendant's legal statements. See, e.g. , Miller v. Yokohama Tire Corp. , 358 F.3d 616, 621 (9th Cir. 2004) ("Where the party making the misrepresentation 1) purports to have special knowledge; 2) stands in a fiduciary or similar relation of trust and confidence to the recipient; 3) has successfully endeavored to secure the confidence of the recipient; 4) or has some other special reason to expect that the recipient will rely on his opinion, misrepresentations of law may result in actionable fraud."); Garsee v. Indem. Ins. Co. of N. Am. , 47 S.W.2d 654, 657 (Tex. Civ. App. 1932) ("[R]edress may be had if one party possessed superior knowledge and took advantage of the other party's ignorance of the law to mislead him by studied concealment or by misrepresentation, and this is especially true where confidential relations obtained."); see also 173 A.L.R. 576, § 7 ("Fraudulent misrepresentation of the state of the law, or the withholding of information as regards thereto, may constitute a fraudulent concealment, where a fiduciary or other confidential relationship exists between the parties.").
It is difficult to imagine a circumstance where a plaintiff is more vulnerable than that of an incarcerated individual relying upon the statements of his jailers. Cf. Commonwealth v. Burton , 638 Pa. 687, 158 A.3d 618, 636-37 (2017) (noting the arguments of amicus curiae Pennsylvania Exonerees as to the multitude of problems associated with incarcerated individuals performing legal research).
The Majority's musings on this topic also are dicta . The Majority concludes that Johnson did not state a legally cognizable claim for negligence. See Maj. Op. at 1179–81. Thus, the Majority did not need to reach the fraudulent concealment issue to dismiss Johnson's negligence claim.
B. Implied Misrepresentations of Fact
"There is oftentimes a delicate line between questions of law and of fact." Jolley v. Jolly , 265 S.C. 594, 220 S.E.2d 882, 884 (1975). The Restatement (Second) of Torts suggests that, while opinions of a legal nature cannot form the basis of fraudulent misrepresentation, a misrepresentation of law that implies a misrepresentation of fact should be treated as any other misrepresentation of fact:
(1) If a misrepresentation as to a matter of law includes, expressly or by implication, a misrepresentation of fact, the recipient is justified in relying upon the misrepresentation of fact to the same extent as though it were any other misrepresentation of fact.
(2) If a misrepresentation as to a matter of law is only one of opinion as to the legal consequences of facts, the recipient is justified in relying upon it to the same extent as though it were a representation of any other opinion.
Restatement (Second) of Torts § 545 (Misrepresentation of Law); see also id. cmt. c. ("Even though the language of a representation concerns only legal consequences and is in form an expression of opinion, it may, as in the case of any other statement of opinion, carry with it by implication the assertion that the facts known to the maker are not incompatible with his opinion or that he does know facts that justify him in forming it.").
Other courts have relied upon a similar distinction in allowing fraud claims to proceed on statements of law that imply a misrepresentation of fact. See, e.g. , Johnson v. Wal-Mart Stores, Inc. , 544 F. App'x 696, 698 (9th Cir. 2013) (quoting the Restatement and holding that "Wal-Mart's sign and receipt may well have implied a factual assertion that California, not Wal-Mart, would receive the recycling fee"); Martinez v. Martinez ,135 N.M. 11, 83 P.3d 298, 301 (2003) ("While Husband attested that Wife knew about his ownership interest in the contested property before the divorce, Wife attested that she had no reason to disbelieve Husband's representation that the property was his sole and separate property until she consulted an attorney many years after the divorce. This is a classic fact dispute best resolved by the fact finder."); Garsee v. Indem. Ins. Co. of N. Am. , 47 S.W.2d 654, 656-57 (Tex. Civ. App. 1932) ("But it is equally well settled that misrepresentations involving a point of law will be held actionable misrepresentations of fact if it appears that they were so intended and understood."); see also Rhodeman v. Ocwen Loan Servicing, LLC , 2019 WL 5955368, at *13 (C.D. Cal. Nov. 12, 2019) (quoting from and applying Johnson ).
The Restatement provides a few examples of such implied statements of fact:
[T]he statement that the maker has good title to land, although in form one of a legal conclusion, ordinarily will be understood to assert the existence of those conveyances or other events necessary to vest good title in him. So likewise a statement that one mortgage has priority over another may imply an assertion that one was made before the other; and a statement that a corporation has the legal right to do business in a state may carry with it an assurance that it has as a matter of fact taken all of the steps necessary to be duly qualified.
* * *
A, seeking to sell frozen fish to B, fraudulently informs B that there is no legal maximum price on frozen fish. B reasonably understands A to assert that government authorities regulating prices have not established any maximum price for the commodity, although they have in fact done so. In reliance on the implied assertion, B buys the fish from A and suffers pecuniary loss. A is subject to liability to B.
Restatement (Second) of Torts § 545, cmt. c., Illustration 2.
Meanwhile, with regard to pure misrepresentations of law, the Restatement notes that "[a] representation of law that might otherwise imply assertions of fact may be so clearly a statement solely of opinion that it does not carry an implication of fact." Id. cmt. d. An example of this pure opinion type of statement is the following: "Thus one who says, ‘I think that my title to this land is good, but do not take my word for it; consult your own lawyer,’ is not reasonably to be understood as asserting any fact at all with respect to the title." Id. And a statement is more likely to be a pure opinion if "all of the facts are known to both parties or are assumed by both of them to exist." Id. In particular, if the parties are on equal footing, the statement is more likely to be a pure opinion. See id. ("[I]f both parties to the transaction are real estate dealers, neither may justifiably assume that the other has so superior a knowledge of the law as to make his opinion a reliable guide.").
With this in mind, I interpret Johnson's allegations of fraudulent concealment as an inference of misrepresentations of fact on the part of Gaines. In his Amended Petition, Johnson wrote that Gaines told him "that the deductions were lawful and that the only way to stop them is to pay the full amount of money owed." Amended Petition ¶ 16. Gaines himself informed Johnson that, based upon information relayed to Gaines from the accounts office, "the Act 84 withdraw[al]s are lawful taking of money ... which will only be stopped if you pay the full amount." Petition for Review, Exhibit-FC.
Johnson's allegation and Gaines’ own written statement are similar to the Restatement's examples. A statement that one "has good title to land, although in form one of a legal conclusion, ordinarily will be understood to assert the existence of those conveyances or other events necessary to vest good title in him." Restatement (Second) of Torts § 545, cmt. c. Similarly, Gaines told Johnson that the deductions from Johnson's account, without pre-deprivation notice, were "lawful." That Gaines told Johnson that the deductions were legal implied a factual basis for DOC to make the deductions. But Gaines made this statement despite the fact that, by June 2013, it had been established that DOC was required to provide pre-deprivation notice to incarcerated individuals. See Johnson , 2019 WL 2400295, at *8-9 ; supra Part II. Additionally, Gaines’ statement that the deductions were "lawful," despite contemporary legal rulings with the opposite conclusion, is like the seller of a product "fraudulently inform[ing]" a buyer "that there is no legal maximum price on" the product, despite the fact that "government authorities ... have in fact" set such a maximum price. Restatement (Second) of Torts § 545, Illustration 2. Thus, although Gaines appeared to be providing Johnson with a legal opinion, the statement was made in such a way as to convey a factual conclusion, namely that the takings "will only be stopped if [Johnson] pay[s] the full amount." Petition for Review, Exhibit-FC; see also Petitioner's Answer to Respondent's Preliminary Objections, 497 MD 2018, ¶ 15 ("When [Johnson] inquired about the money missing from his account, D.O.C. Counselor Gaines told [Johnson] that the Act 84 deductions were lawful and that the only way to stop them was to pay the full amount owed.").
Gaines did not reply to Johnson in the form of a pure opinion. He did not write, "I think these takings are legal, but do not take my word for it; consult your lawyer" or perform your own legal research. Cf. Restatement (Second) of Torts § 545, cmt. d. Instead, Gaines’ conclusory statement, while based upon the accounts office's (incorrect) reading of the law at the time, implied a fact: Johnson could do nothing to stop the takings. Adding further support to reading Gaines’ statement as an implied statement of fact is the circumstance that Johnson and Gaines were not on an equal footing. Gaines and Johnson were not "bargaining adversaries," id. ; rather Gaines was a prison counselor who was in a position of authority over Johnson. Finally, as noted above, that we have extended the doctrine to "fraud in the broadest sense," Fine , 870 A.2d at 860, militates in favor of reading Gaines’ response to Johnson as an implied misrepresentation of fact.
"[M]isrepresentations involving a point of law will be held actionable misrepresentations of fact if it appears that they were so intended and understood." Garsee , 47 S.W.2d at 656-57. Gaines’ statement to Johnson reasonably could be understood to convey a fact that the deductions had legal backing and could not be stopped for any reason until Johnson's fees were paid completely. That implied fact was in opposition to binding case law at the time. Therefore, I would not dismiss Johnson's negligence claim upon this basis.
One might be inclined to dismiss Johnson's fraudulent concealment tolling claim upon the basis that, even if Gaines did convey false information to Johnson, that information was provided to Gaines by the accounts office, and Gaines did not knowingly conceal any fact. However, our precedent is clear: "The doctrine does not require fraud in the strictest sense encompassing an intent to deceive, but rather, fraud in the broadest sense, which includes an unintentional deception." Fine , 870 A.2d at 860 (emphasis added). Even if Gaines’ deception were unintentional, that lack of intent does not preclude Johnson from tolling the statute of limitations by alleging fraudulent concealment.
C. Diligence
The Commonwealth Court refused to toll the statute of limitations because that court concluded that, as a matter of law, Johnson "was not ‘reasonably diligent in informing himself of the facts upon which his recovery may be based.’ " Johnson , 2019 WL 2400295, at *11 (quoting Fine , 870 A.2d at 861 ). The Commonwealth Court arrived at this conclusion despite noting that the issue of diligence "[o]rdinarily ... involves a question of fact for the jury." Id. at *10 (citing Fine , 870 A.2d at 858-59 ); see also Gleason v. Borough of Moosic , 609 Pa. 353, 15 A.3d 479, 487 (2011) ("Our jurisprudence has recognized that the point at which the complaining party should be reasonably aware that he or she has suffered an injury and should have identified its cause is ordinarily an issue of fact to be determined by the jury due to the fact intensive nature of the inquiry."). Because I agree that the question of diligence should be for the factfinder, I cannot affirm the Commonwealth Court's ruling in this regard.
"[R]easonable diligence is not an absolute standard, but is what is expected from a party who has been given reason to inform himself of the facts upon which his right to recovery is premised." Fine , 870 A.2d at 858. In deciding whether a plaintiff has exercised diligence in discovering a defendant's negligence, we must keep in mind that "there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful." Id. (internal quotation marks and citation omitted). Unlike the base negligence claim, which is decided upon a unitary objective reasonable person standard, see Martin v. Evans , 551 Pa. 496, 711 A.2d 458, 461 (1998), the diligence standard "take[s] into account the difference[s] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question," Fine , 870 A.2d at 858 (internal quotation marks and citation omitted). Thus, the reasonable diligence standard, though still objective, differs from the singular reasonable person standard because "the reasonable diligence standard ... examin[es] not what the plaintiff actually knew, but what a reasonable person facing the same circumstances confronting the plaintiff at the time in question would have known upon the exercise of reasonable diligence." Nicolaou v. Martin , 649 Pa. 227, 195 A.3d 880, 894 (2018) (citing Fine , 870 A.2d at 858 ) (emphasis added); see also Johnson's Brief at 25 ("Therefore the question is not what a reasonable person would have done but, what a reasonable prisoner would have done in [Johnson's] circumstances.").
Johnson makes a number of factual allegations related to how an individual "facing the same circumstances confronting" him could not have exercised due diligence to discover Gaines’ fraudulent concealment of Johnson's right to pre-deprivation due process protections. For example, Johnson writes that he "did not finish high school[,] is poorly educated[, and] has learning disabilities." Id. Furthermore, Johnson asked the Commonwealth Court to assess the presence of fraudulent concealment based upon his status as an incarcerated individual. Johnson notes that "the prison literally controls the information that prisoners have access to." Id. ; see also Burton , 158 A.3d at 636-37. With regard to his relationship with Gaines, Johnson contends that Gaines "was in a position of trust" and that Gaines’ allegedly fraudulent information "caus[ed Johnson] to relax his vigilance and deviate from his right of inquiry into the facts." Petitioner's Answer to Respondent's Preliminary Objections, 497 MD 2018, ¶¶ 22, 24; see also Johnson's Brief at 29 (noting that the "[t]he title counselor is only given to people who are historically in a position of trust" and that the title "clearly indicate[s] some type of duty to [Johnson] in regards to sensitive matters").
The Commonwealth Court responded to these arguments first by declaring that "Johnson does not cite any legal authority to support the proposition that his relationship with [Gaines] is similar to the relationship a physician has with a patient such that his reliance would be justifiable." Johnson , 2019 WL 2400295, at *11. Second, the Commonwealth Court asserted that "Johnson does not aver any specific facts or circumstances that support his allegation that [Gaines] ‘was in a position of trust.’ " Id. (quoting Petitioner's Answer to Respondent's Preliminary Objections, 497 MD 2018, ¶¶ 21-22). Based upon this apparent lack of legal and factual authority, the Commonwealth Court concluded that "reasonable minds would not differ that society would expect an individual in Johnson's situation to exhibit more diligence in determining the accuracy of a statement that such deductions were lawful in order to protect the individual's interests." Id. (internal quotation marks omitted).
The Commonwealth Court fundamentally misunderstood our previous instructions at the preliminary objections phase of litigation. Johnson's allegations regarding the effect of his background, his status as an incarcerated individual, and his relationship with Gaines are all questions of fact. Based upon the record before it, the Commonwealth Court had no means to assess, at the preliminary objections stage, whether Johnson justifiably relied upon Gaines’ statement that the deductions were lawful. DOC raised nothing in its preliminary objections that would have proven that Johnson should have been "awakened" to probe the veracity of Gaines’ written response. See Fine , 870 A.2d at 858. In its brief to this Court, DOC makes a general argument that Johnson "does not explain why [Gaines’] response stopped him from exercising common sense or looking into the accuracy of [Gaines’] statement." DOC's Brief at 14. Not only does this statement ignore Johnson's arguments to this Court and to the court below, but additionally DOC does not argue with any specificity as to why the factual record does not allow Johnson's claim to proceed past preliminary objections. It is unclear how the Commonwealth Court was able to arrive at the conclusion that, as a matter of law, a person in Johnson's position could not rely upon Gaines’ statement when there was no evidence before that court to support that conclusion. Indeed, the only facts before the Commonwealth Court when that court made its ruling were those alleged by Johnson himself, which, at the preliminary objections stage, the Commonwealth Court had to accept as true, per this Court's instructions. See Golden Gate , 194 A.3d at 1022. Only by proceeding past preliminary objections and allowing the factual record to be developed, possibly through discovery, could the Commonwealth Court make a fully-informed decision about whether Johnson should have exercised diligence with regard to Gaines’ legally incorrect statement. Thus, I would remand for further factual development Johnson's attempt to toll the statute of limitations based upon alleged fraudulent concealment.
* * *
I express no opinion as to whether Johnson ultimately would be meritorious in his negligence claim. But the question in this case is not whether the Department of Corrections and its employees were negligent in deducting funds from Johnson's account without pre-deprivation notice. Rather, the question is whether Johnson has pleaded a claim sufficient to survive preliminary objections. Based upon the record before the Commonwealth Court, the answer is yes. It is true that Johnson's Amended Petition is not the most sophisticated legal document submitted to a Pennsylvania court. Nor was his attempt to toll the statute of limitations a clear-cut case of fraudulent concealment. But at the preliminary objections stage, we require neither a high degree of sophistication nor a definitive showing of fraudulent concealment. We inquire only "whether, on the facts averred, the law says with certainty that no recovery is possible." MacElree , 674 A.2d at 1054 (citation and internal quotation marks omitted). The Majority and the Commonwealth Court apparently believe that such recovery is impossible with regard to Johnson's negligence claim. I disagree. "[D]ismissal of this matter on preliminary objections was premature. Such disposition may prove entirely appropriate at a later stage, such as summary judgment." Sutton v. Bickell , ––– Pa. ––––, 220 A.3d 1027, 1038 (2019) (Wecht, J., dissenting). But in this case, and at this stage of the litigation, Johnson has met his burden.
There are many instances in which incarcerated individuals litigate claims that ultimately prove to be meritless. Indeed, the General Assembly implicitly has made such a recognition. See generally Prison Litigation Reform Act, Act of June 18, 1998, P.L. 640, No. 84 (codified at 42 Pa.C.S. §§ 6601 -08) (erecting barriers for incarcerated individuals to litigate certain claims). But "[n]o matter what the underlying merits of a claim may be, our courts must be open to all those who come before them, seeking to invoke their jurisdiction." Stockton v. Wetzel , 228 A.3d 1289, 1290 (Pa. 2020) (Wecht, J., concurring). "We do injustice when we do not give full consideration to each and every individual that seeks relief from our Commonwealth's courts, no matter that individual's incarceration status." Id. (Wecht, J., concurring); cf. Danysh v. Dep't of Corr. , 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004) (en banc ) ("The allegations of a pro se complainant are held to a less stringent standard than that applied to pleadings filed by attorneys."). Johnson has invoked the Commonwealth Court's jurisdiction. That court erred in dismissing too quickly Johnson's negligence claim. The Majority errs in affirming that dismissal. Accordingly, I respectfully dissent from that portion of the Court's opinion.
In Payne v. Department of Corrections , 582 Pa. 375, 871 A.2d 795 (2005), this Court struck down certain provisions of the Prison Litigation Reform Act as unconstitutional, in that the General Assembly intruded upon this Court's rulemaking authority under Article V, Section 10(c) of the Pennsylvania Constitution. However, much of the statute remains on the books and still creates certain barriers for incarcerated individuals to bring claims.
Justice Donohue joins the concurring and dissenting opinion.