G. Elkington v. DOC

G
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Geoffrey Elkington,                             :
                              Petitioner        :
                                                :
                      v.                        :    No. 478 M.D. 2018
                                                :    Submitted: April 16, 2021
Department of Corrections,                      :
                        Respondent              :



BEFORE:        HONORABLE P. KEVIN BROBSON, President Judge1
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                                FILED: May 27, 2021


       Presently before the Court are the Motion for Summary Judgment filed by
Geoffrey Elkington (Elkington) and the Motion for Judgment on the Pleadings filed
by the Pennsylvania Department of Corrections (Department), both of which we
treat as Applications for Summary Relief under Rule 1532(b) of the Pennsylvania
Rules of Appellate Procedure, Pa.R.A.P. 1532(b).2 Elkington filed a pro se Petition
for Review (Petition) in this Court’s original jurisdiction challenging the
Department’s deductions of alleged court costs from Elkington’s inmate account on


       1
         This case was initially assigned to the opinion writer before January 4, 2021, when Judge
Brobson became President Judge, but was held in abeyance and then resubmitted after the Court
of Common Pleas of Chester County issued an order that addressed an issue related to this matter.
       2
         The Department filed its Motion for Judgment on the Pleadings “pursuant to Pennsylvania
Civil Rule of Procedure 1034,” Pa.R.C.P. No. 1034.
the basis that there is no court order or sentencing hearing transcript reflecting that
the Court of Common Pleas of Chester County (trial court) imposed court costs upon
Elkington. The Department filed an Answer and New Matter and, later, an Answer
and Amended New Matter to the Petition to which it appended a transcript from the
sentencing hearing purporting to include such costs.          Elkington’s Motion for
Summary Judgment is based on the original New Matter, which Elkington argues
asserts claims that were already rejected as insufficient by the Court, and the
Department’s Motion for Judgment on the Pleadings is based on the Amended New
Matter, particularly the sentencing hearing transcript and its claim that it is entitled
to sovereign immunity. For the reasons that follow, we deny Elkington’s Motion for
Summary Judgment, grant the Department’s Motion for Judgment on the Pleadings,
and dismiss Elkington’s Petition.

   I. BACKGROUND
          A. Factual Allegations
      In July 2018, Elkington filed the Petition, the allegations of which we
described in Elkington v. Department of Corrections (Pa. Cmwlth., No. 478 M.D.
2018, filed June 3, 2019) (Elkington I), as follows.

      The . . . trial court . . . sentenced Elkington on December 16, 2010, to
      25[] to 50[] years’ imprisonment. (Petition ¶¶ 1-2.) On January 23,
      2018, the Department notified Elkington that it would begin to take a
      [20%] percent deduction from his inmate account for court costs
      totaling $2,974.35, and it started those deductions on June 7, 2018.[]
      (Id. ¶¶ 4, 7.) The Department justified the deductions for court costs
      by referencing the DC-300B Commitment Form and Sentencing Sheets
      in the Department’s possession. (Id. ¶ 5.) Elkington filed a grievance
      contesting these deductions and exhausted his administrative remedies.
      (Id. ¶ 6.) Elkington alleges that the trial court expressly stated at the
      time of his sentencing that it would not order the payment of costs or
      fines, and no official sentencing order exists to support the


                                           2
       Department’s contention otherwise. (Id. ¶ 8.) Elkington alleges that a
       request under the Right-to-Know Law[, Act of February 14, 2008, P.L.
       6, 65 P.S. §§ 67.101-67.3104,][] revealed that no sentencing order
       exists, and his requests to the trial court for a transcript of the sentencing
       hearing revealed that no transcript exists either. (Id. ¶ 12.) Elkington
       asserts that the Sentencing Sheets and DC-300B Commitment Form are
       not sentencing orders. Even if they were, the Department . . . does not
       have the authority to collect costs that are not specifically ordered by
       the trial court, as set forth in Section 9728(b)(5) of the Sentencing Code,
       42 Pa. C.S. § 9728(b)(5), commonly referred to as Act 84. (Petition
       ¶¶ 9-10.) Section 9728(b)(5) provides generally that the Department
       “shall be authorized to make monetary deductions from inmate
       personal accounts for the purpose of collecting restitution or any other
       court-ordered obligation.” 42 Pa. C.S. § 9728(b)(5). Elkington
       requests an interlocutory order requiring the Department to stop making
       deductions until a valid sentencing order or transcript from the
       sentencing hearing is produced showing that he was ordered to pay
       costs. (Petition ¶ 13.) Further, Elkington seeks the return of the funds
       that he contends were improperly deducted from his account for these
       court costs, as well as full restitution of costs incurred in filing the
       grievances and this action, and punitive damages. (Id. ¶ 14.)

Elkington I, slip op. at 2-3. Thus, Elkington seeks injunctive relief to stop the
Department from taking any additional funds and for the Department to reimburse
that which has been taken from his inmate account. (Petition ¶¶ 13-14.)

           B. The Department’s Preliminary Objections
       The Department filed preliminary objections in the nature of a demurrer,
arguing that it was entitled to take the deductions under Sections 9721(c.1) and
9728(b)(5) of the Sentencing Code, 42 Pa.C.S. §§ 9721(c.1), 9728(b)(5).3 For

       3
         Prior to December 18, 2019, Section 9728(b)(5) provided in relevant part that “the
Department . . . shall be authorized to make monetary deductions from inmate personal accounts
for the purpose of collecting restitution or any other court-ordered obligation or costs imposed
under [S]ection 9721(c.1).” Former 42 Pa.C.S. § 9728(b)(5). Section 9728(b) was amended by
Section 4 of the Act of December 18, 2019, P.L. 776, effective immediately, and Section
9728(b)(5)(i) now states, in pertinent part, that “the Department . . . shall make monetary
(Footnote continued on next page…)


                                               3
support, the Department attached Sentencing Sheets, which had pre-printed boxes
around the word “costs” and a handwritten notation of the amount of the costs, and
the DC-300B Commitment Form. We overruled those preliminary objections in
Elkington I.
       We held that the Department could not rely on Section 9721(c.1) because it
became effective after Elkington’s sentencing. Elkington I, slip op. at 6. Thus, the
Department had to establish that the costs were “court-ordered” pursuant to Section
9728(b)(5). However, because we could not “definitively say at this early stage that
the costs were court-ordered[,]” we overruled the preliminary objections based on
that provision. Elkington I, slip op. at 8. The DC-300B Form could not be relied
upon pursuant to Spotz v. Commonwealth, 

972 A.2d 125

, 130-31 (Pa. Cmwlth.
2009), where, as here, the imposition of costs was disputed. Elkington I, slip op. at
8, 10. The Sentencing Sheets could not be relied upon for the purposes of granting
a demurrer because, although there was a pre-printed box around the word “costs,”
there were no other markings reflecting the affirmative imposition of costs by the
trial court, and, therefore, those documents could not establish “conclusive evidence

deductions . . . from inmate wages and personal accounts for the purpose of collecting restitution,
costs imposed under [S]ection 9721(c.1), . . . , or any other court-ordered obligation . . . .” 42
Pa.C.S. § 9728(b)(5)(i). Under either version of Section 9728(b), the Department is authorized to
make deductions from an inmate’s account to pay for court-ordered costs. The portion of Section
9728(b)(5) referencing costs imposed under Section 9721(c.1) was added by Section 3 of the Act
of October 27, 2010, P.L. 949, No. 96 (Act 96), at the time that Section 9721(c.1) was added to
the Sentencing Code by Section 2 of Act 96. Section 9721(c.1) provides that

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

42 Pa.C.S. § 9721(c.1).


                                                4
that costs were court-ordered” pursuant to Saxberg v. Commonwealth, 

42 A.3d 1210

,
1214-15 (Pa. Cmwlth. 2012). Elkington I, slip op. at 9-10. Having overruled the
Department’s preliminary objections, we ordered it to file an Answer to the Petition.

           C. The Department’s Answers and Elkington’s Responses
      The Department filed the Answer and New Matter (Original Answer and New
Matter), in which it admitted certain allegations regarding the deductions from
Elkington’s inmate account but denied that the trial court did not impose court costs
and other allegations as being conclusions of law or opinions to which no response
was required. As New Matter, the Department asserted it was immune from
Elkington’s claims, which the Department characterized as being intentional torts,
under the doctrine of sovereign immunity and averred facts in support of that
defense.
      Elkington filed an Answer to the Original New Matter, responding that the
Department presented no evidence, nor can it, to support its averment that the trial
court imposed court costs and that the trial court expressly did not impose those
costs. As for sovereign immunity, Elkington argued that the cases the Department
relied upon are distinguishable because there was no challenge to whether the costs
were ever imposed in those cases. Even if sovereign immunity could apply,
Elkington asserted that the exception for care and custody of property in the
possession of the Department, Section 8522(b)(3) of the act commonly known as the
Sovereign Immunity Act, 42 Pa.C.S. § 8522(b)(3), would apply in this situation.
Elkington then filed, on or about January 17, 2020, the Motion for Summary
Judgment based on the Answer and New Matter. Therein, Elkington asserts that the
Department simply “reiterated [its] initial objections and stated that [it was] entitled
to deduct monies from [Elkington’s] income without any authorization because [the


                                           5
Department] w[as] subject to ‘sovereign immunity.’”            (Motion for Summary
Judgment at 1.) However, he maintains, without authorization from the trial court –
as is missing here – the Department cannot, as a matter of law, take deductions from
his account.
      Following the filing of the Motion for Summary Judgment, the Department
requested, and was granted, permission to file an Answer and Amended New Matter.
While the Department’s Answer to the Petition was the same as before, in its
Amended New Matter, the Department avers that when Elkington was sentenced on
December 16, 2010, the trial court stated that while fines would not be imposed,
Elkington was to “pay costs of prosecution.” (Amended New Matter ¶¶ 18-19.)
Attached to the filing as Exhibit A is a copy of the transcript from Elkington’s
December 16, 2010 sentencing hearing. (Amended New Matter Ex. A.) The
Department further attached, as Exhibit B, what it characterized as the sentencing
orders that contain the words “Costs,” “Fine,” and “Restitution,” and of the three,
only “Costs” had a box placed around it. (Amended New Matter ¶¶ 21-22; Ex. B.)
Attached as Exhibit C is the DC-300B Form calculated by the County Clerk of
Courts and transmitted to the Department, which reflects costs of $2,974.35 and $60
for the Crime Victims Compensation (CVC) Fund fee, for a total of $3,034.35. (Id.
¶ 23; Ex. C.) Based on the transcript and related forms, the Department asserted that
because “the court specifically awarded the costs of prosecution, [which] the
paperwork supports . . . , those costs were properly deducted by [the Department].”
(Id. ¶ 24.) The Department further reiterates its position that Elkington is essentially
asserting an intentional tort from which it is entirely immune under the doctrine of
sovereign immunity. (Id. ¶¶ 25-28 (citing Commonwealth v. Tate, 

133 A.3d 350

,




                                           6
359-60 (Pa. Cmwlth. 2016)).) It contended none of the exceptions to immunity
under Section 8522 of the Judicial Code apply to this situation. (Id. ¶ 29.)
      Elkington filed an Answer to the Amended New Matter, challenging the
transcript from the sentencing hearing. (Answer to Amended New Matter at 3.)
According to Elkington, he had been attempting to obtain the transcript for years
with no success, and suddenly the Department is offering it in this matter. Elkington
points out that the transcript is not signed by the court reporter or sentencing judge
and lacks any seal or certification confirming its authenticity. As such, Elkington
contends that the “transcript has no value as a legally valid document” and should
not be considered. (Id. at 2-3.) Further, he asserts that if the transcript was valid, he
should have had the opportunity to contest its accuracy because it includes language
that Elkington asserts is wrong. Specifically, Elkington maintains that the transcript
is wrong where it reflects that the trial court judge ordered him to pay costs of
prosecution because that judge was “cogni[zant] of the restriction on one’s ability to
have income in the State Correctional Institut[ion],” and, therefore, Elkington
contends that the judge did not impose any costs or fines (Id. at 3.) He also avers
that other statements by the trial court judge were omitted. Elkington further
challenges the Department’s reliance on the Sentencing Sheets as constituting
sentencing orders, as the Court has already rejected those claims, and contends that
the box around the word “Costs” was added after the trial court judge and court clerk
had signed the Sentencing Sheets. Because costs may only be collected under
Section 9728(b)(5) if ordered by the court in a sentencing order, and Elkington
contends that did not happen here, neither the court clerk nor the Department has the
authority to, respectively, assess and collect those costs here.




                                           7
          D. The Department’s Motion for Judgment on the Pleadings
      After Elkington filed his Amended Answer to the Amended New Matter, the
Department filed its Motion for Judgment on the Pleadings. Therein, the Department
argues that it is entitled to judgment on the pleadings because the trial court clearly
ordered Elkington to pay the costs of prosecution during the sentencing hearing.
This order was then documented in the Sentencing Sheets by placing a box around
the word “Costs” only. Thus, the Department argues the transcript and other
documentation support that the Department’s deductions are court-ordered and, as
such, proper under the law. Although Elkington argues that the hearing transcript is
invalid, the Department asserts that he provides no support for his claim and his
allegations of fraud are unfounded. In addition, the Department argues it is entitled
to judgment on the pleadings because Elkington’s claims are barred by sovereign
immunity and there are no exceptions to that doctrine that are applicable here. The
Department contends that Elkington has conceded the applicability of this doctrine
because he did not directly address that allegation in his Amended Answer to the
Department’s Amended New Matter.
      Elkington filed a letter in response to the Motion for Judgment on the
Pleadings indicating that he is relying on his prior filings and allegations. He
maintains that the Department is “merely rehash[ing] already discredited arguments
and adds nothing new.” (Elkington’s Letter in Response to Motion for Judgment on
the Pleadings at 1.)

          E. The Stay of this Matter
      After the Department filed the Motion for Judgment on the Pleadings,
Elkington filed a Motion to Correct Errors of Sentencing Hearing (Motion to Correct
Errors) with the trial court on or about August 25, 2020. (Chester County Criminal


                                          8
Docket CP-15-CR-0001376-2009 (Crim. Docket) at 85.4) Because Elkington was
challenging the accuracy of the sentencing hearing transcript in both this matter, as
well as before the trial court, on December 30, 2020, this Court issued a rule “upon
the parties as to why this matter should not be stayed pending the trial court’s
disposition of the Motion to Correct Errors” and for the parties to file statements in
response. (Dec. 30, 2020 Order.) The Department had no objection to staying the
case. Elkington objected, arguing that his claim was not dependent on the sentencing
hearing transcript because the only operative document for sentencing purposes was
a written sentencing order. As no such order had been produced in this matter,
Elkington argued, it did not matter what was said during the sentencing hearing. By
order dated February 4, 2021, we disagreed with Elkington that the sentencing
hearing transcript was irrelevant, as the Petition itself referred to the transcript and
Pennsylvania courts have considered the contents of sentencing transcripts in similar
matters in the absence of a written sentencing order. (Feb. 4, 2021 Order (citing
Com. ex rel. Connelly v. Gilmore (Pa. Cmwlth., No. 1919 C.D. 2016, filed Aug. 25,
2017); Joseph v. Glunt, 

96 A.3d 365

 (Pa. Super. 2014); Com. v. Mazer, 

24 A.3d 481

,
482 (Pa. Cmwlth. 2011)).)             Accordingly, we stayed this matter and directed

       4
          Although not introduced by the parties, the underlying criminal proceedings are directly
related to the claims made here and are referenced throughout the pleadings, and this Court may
take judicial notice of the dockets of other courts of the Commonwealth. See, e.g., Pennsylvania
Rule of Evidence 201(b)(2) (permitting courts to take judicial notice of facts that may be
“determined from sources whose accuracy cannot reasonably be questioned”); Moss v. Pa. Bd. of
Prob. & Parole, 

194 A.3d 1130

, n.11 (Pa. Cmwlth. 2018) (taking judicial notice of docket entries
that were not contained in the original record); Miller v. Unemployment Comp. Bd. of Rev., 

131
A.3d 110

, 115 (Pa. Cmwlth. 2015) (taking judicial notice of a claimant’s criminal docket and
records contained therein); Germantown Cab. Co. v. Phila. Parking Auth., 

27 A.3d 280

, 283 n.8
(Pa. Cmwlth. 2011) (taking judicial notice of a Supreme Court docket in a case involving a similar
point of law); Styers v. Bedford Grange Mut. Ins. Co., 

900 A.2d 895

, 899 (Pa. Super. 2006) (stating
that a court may take judicial notice of a fact “which is incorporated into the complaint by reference
to a prior court action”).


                                                  9
Elkington to file a status report by April 5, 2021, and, if the matter had been resolved
by then, a copy of the trial court’s order.
        Thereafter, Elkington filed a statement in response to the February 4, 2021
order, indicating that the trial court had denied the Motion to Correct on January 26,
2021. Notwithstanding the denial, Elkington pointed to what he termed obvious
mistakes in the transcript and reiterated his arguments regarding why the transcript
could not be relied upon as accurate, including that it was not signed by the court
reporter or certified. Elkington did not attach a copy of the trial court’s order to his
response. By order dated March 4, 2021, we directed Elkington to file and serve a
copy of the trial court’s January 26, 2021 order and, if possible, the Department to
file and serve a certified copy of the sentencing hearing transcript in 30 days.
        On March 31, 2021, Elkington filed a copy of the January 26, 2021 order,
which denied the Motion to Correct. Therein, the trial court explained that “neither
the prosecutor, County Detectives, nor the Judge involved with the underlying
sentence are currently employed in Chester County and are therefore unable to
review [Elkington’s] suggested changes.” (Trial Ct. Jan. 26, 2021 Order n.1.) The
trial court further explained that, “upon review of [Elkington’s] Motion, none of the
requested changes are substantive in nature which would affect the outcome of this
matter.” (Id.) Thus, the trial “court [was] unable to grant the relief requested.” (Id.)
The Department filed a copy of the December 16, 2010 sentencing hearing transcript
that was signed by the court reporter and the trial court’s President Judge,5 and
certified from the record by the trial court’s deputy clerk as of April 1, 2021.6

        5
          The date of the President Judge’s signature on the transcript, February 20, 2020, is prior
to this Court’s March 4, 2021 order.
        6
          Although the transcript was filed on April 12, 2021, which was after the period directed
in our March 4, 2021 order, the trial court did not file the transcript until near the end of that period.
(Footnote continued on next page…)


                                                   10
      Having set forth the pleadings and other filings submitted to the Court, we
now turn to resolving Elkington’s Motion for Summary Judgment and the
Department’s Motion for Judgment on the Pleadings.

   II. Motion for Summary Judgment
      Appellate Rule 1532(b) provides that, “[a]t any time after the filing of a
petition for review in an . . . original jurisdiction matter, the court may on application
enter judgment if the right of the applicant thereto is clear,” and encompasses
motions for summary judgment. Pa.R.A.P. 1532(b), Note. “An application for
summary relief is properly evaluated according to the standards for summary
judgment.” McGarry v. Pa. Bd. of Prob. & Parole, 

819 A.2d 1211

, 1214 n.7 (Pa.
Cmwlth. 2003). Summary judgment is appropriate where there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter of law.
Royal v. Se. Pa. Transp. Auth., 

10 A.3d 927

, 929 n.2 (Pa. Cmwlth. 2010). See also
Pennsylvania Rule of Civil Procedure 1035.2, Pa.R.C.P. No. 1035.2 (setting forth
the standard for summary judgment). In considering whether to grant summary
judgment, we review the record in the light most favorable to the nonmoving party,
resolving all doubts as to the existence of a genuine issue of material fact against the
moving party. Royal, 

10 A.3d at 929 n.2

.
      Here, Elkington filed his Motion for Summary Judgment based on the
Department’s Original Answer and New Matter. Therein, Elkington argues that the
Department simply “reiterated [its] initial objections and stated that [it was] entitled
to deduct monies from [Elkington’s] income without any authorization because [the
Department] w[as] subject to ‘sovereign immunity.’” (Motion for Summary


Therefore, we will accept it pursuant to Pennsylvania Rule of Appellate Procedure 105(b),
Pa.R.A.P. 105(b), which allows a court to extend deadlines for good cause.


                                           11
Judgment at 1.) There being no authorization for the deduction of court costs,
Elkington requests the Court grant summary judgment in his favor. However, the
Original Answer and New Matter are no longer the operative pleading to the Petition;
the Answer and Amended New Matter control our review. Because the Motion for
Summary Judgment does not speak to the facts alleged in the Amended New Matter,
it cannot be said to support judgment as a matter of law in Elkington’s favor.
Accordingly, the Motion for Summary Judgment is denied.

   III.   Motion for Judgment on the Pleadings
      Appellate Rule 1532(b) also encompasses motions for judgment on the
pleadings, Pa.R.A.P. 1532(b), Note. A motion for judgment on the pleadings under
Rule 1532(b) is considered under the general standards for such motions. POM v.
Dep’t of Revenue, 

221 A.3d 717

, 722 n.7 (Pa. Cmwlth. 2019). “A motion for
judgment on the pleadings is in the nature of a demurrer”; thus, “all of the opposing
party’s allegations are viewed as true and only those facts which have been
specifically admitted by him may be considered against him.” Trib Total Media,
Inc. v. Highlands Sch. Dist., 

3 A.3d 695

, 698 n.2 (Pa. Cmwlth. 2010). In reviewing
a motion for judgment on the pleadings, we “may only consider the pleadings
themselves and any documents properly attached thereto.” 

Id.

 The motion should
only be granted “when the pleadings show there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.” 

Id.

 The burden of
establishing the lack of a genuine issue of material fact is on the moving party.
Hughes v. Council 13, Am. Fed. of State, Cnty. & Mun. Emps., AFL-CIO, 

629 A.2d
194

, 195 (Pa. Cmwlth. 2003). As these motions are in the nature of a demurrer, we
will “not accept as true conclusions of law, unwarranted inferences from fact,
argumentative allegations, or expressions of opinion.” Diess v. Pa. Dep’t of Transp.,


                                         12

935 A.2d 895

, 903 (Pa. Cmwlth. 2007) (quoting McGriff v. Pa. Bd. of Prob. &
Parole, 

809 A.2d 455

, 458 (Pa. Cmwlth. 2002)).
      The Department argues it is entitled to judgment on the pleadings because, as
the sentencing hearing transcript shows, the trial court clearly ordered Elkington to
pay the costs of prosecution. Because the costs were court-ordered, the Department
argues it had the authority to deduct them from Elkington’s inmate account pursuant
to Section 9728(b)(5). It maintains that Elkington’s challenges to the accuracy of
the sentencing hearing transcript are unfounded and without support. In addition,
the Department argues judgment on the pleadings in its favor is proper because
Elkington’s claims are barred by sovereign immunity pursuant to Tate, 

133 A.3d at
359-60,

 and there are no exceptions to that doctrine that are applicable here.
      Elkington challenges both the accuracy of the sentencing hearing transcript
and the relevance of that transcript in determining whether the Department had the
authority to withdraw funds from his inmate account to pay court-ordered costs.
While acknowledging that the trial court denied his Motion to Correct Errors,
Elkington maintains there are clear inaccuracies in the transcript that, along with the
lack of signatures and certification, render that transcript unreliable. Elkington
further asserts that the transcript is of no importance because it is the sentencing
order, or the lack of one here, that controls pursuant to Commonwealth v. Isabell,

467 A.2d 1287

, 1292 (Pa. 1983), Joseph, 

96 A.3d 365

, and Commonwealth v.
Quinlan, 

639 A.2d 1235

, 1240 (Pa. Super. 1993). In response to this Court’s
February 4, 2021 order referencing cases in which courts considered the transcripts
of sentencing hearings as sufficient, Elkington points out that there were no
challenges to the accuracy of those transcripts. (Elkington Status Report filed Mar.
31, 2021, at 9-10.) As for sovereign immunity, Elkington argues, based on his prior



                                          13
responses, that the cases the Department relies upon are distinguishable as, in those
cases, there was no challenge to whether the costs were ever imposed. Even if
sovereign immunity could apply, Elkington asserts that the exception for care and
custody of property in the possession of the Department would apply here.
      In Elkington I, the Court held that the Department’s authority to take the
deductions from Elkington’s inmate account would have to arise from Section
9728(b)(5).    Elkington I, slip op. at 7.      Pursuant to Section 9728(b)(5), the
Department is authorized to deduct money from an inmate’s account for the purpose
of collecting any court-ordered obligation or costs. Former 42 Pa.C.S. § 9728(b)(5);
see also 42 Pa.C.S. § 9728(b)(5)(i). Reviewing the pleadings and the materials
attached thereto, we agree with the Department that there is no genuine issue of
material fact as to whether the trial court ordered Elkington to pay costs during the
December 16, 2010 sentencing hearing.
      The December 16, 2010 sentencing hearing transcript, a signed and certified
copy of which is now before the Court, indicates that the trial court ordered
Elkington to pay costs. (Dec. 16, 2010 Hearing Transcript at 39-40.) After setting
forth Elkington’s periods of incarceration, the trial court stated: “The defendant will
pay the costs of prosecution. We do not impose any fine because we are cogn[izant]
of the restrictions on one’s ability to have income in the state correctional institution,
and there is simply no way we are going to see any fines in this matter.” (Id.)
Consistent with the trial court’s oral sentencing order, the Sentence Summaries,
signed by the trial court, reflect the periods of incarceration related to each count and
that no fines would be imposed but that costs would be imposed by indicating “Fine
-- & Costs,” with a box around the word “Costs.” (Answer with Amended New
Matter, Ex. B.)     The handwritten notation on the first page of the Sentence



                                           14
Summaries, dated January 4, 2011, reflects “Fine – 0” and “Costs- [$]3034.35.” (Id.)
The notation is consistent with page 23 of the DC-300B Form and page 86 of
Elkington’s Criminal Docket, which show “Costs” in the amount of $2,974.35 and
a CVC fee of $60, which combined equals $3,034.35. (Id., Ex. C at 23; Crim. Docket
at 86.)
          We acknowledge that Elkington challenges the accuracy of the sentencing
hearing transcript, referencing his recollection of what the trial court said during the
hearing, certain mistakes within the transcript, such as the wrong case number and
the misspelling of his name, and the lack of signatures and certification.7 Although
we are to view the record in the light most favorable to the non-moving party in
ruling on a motion for judgment on the pleadings, we are mindful that we are not
required to “accept as true . . . unwarranted inferences from fact, argumentative
allegations, or expressions of opinion.” Diess, 

935 A.2d at 903

. Further, there must
be a genuine issue of material fact in order to preclude judgment at this stage of the
proceedings. “Genuine” is defined as “authentic,” “real,” or “free from pretense,”8
and a material fact is one that “directly affects the disposition of the case,” Pyeritz
v. Commonwealth, 

956 A.2d 1075

, 1079 (Pa. Cmwlth. 2008).
          We now have a certified copy of the transcript signed by the court reporter
and the President Judge.9 The inaccuracies cited by Elkington, such as the wrong

          7
         We observe that such challenges are to be directed to the trial court. Pennsylvania Rule
of Appellate Procedure 1922(c), Pa.R.A.P. 1922(c); Commonwealth v. Szakal, 

50 A.3d 210

 (Pa.
Super. 2012).
       8
         See Genuine, https://www.dictionary.com/browse/genuine# (last visited May 19, 2021).
       9
          In a status report filed on April 14, 2021, Elkington questions why copies of the
sentencing hearing transcript he asserts he received from the Department on February 26, 2020,
and from the trial court in June 2020, did not contain the President Judge’s February 20, 2020
signature. We note that the copy from the Department was mailed on February 13, 2020, which
predated the President Judge’s signature. While it is unclear why the second copy did not contain
(Footnote continued on next page…)


                                               15
case number and misspellings of his name in the hearing transcript’s text, which are
better described as typographical errors, do not implicate the accuracy or validity of
the transcript as a whole. From these inaccuracies and his inability to obtain the
transcript in the past, Elkington demands that this Court infer that the transcript is
inaccurate and untrustworthy. He appears to also suggest that the hearing transcript
presented by the Department was somehow created specifically for this proceeding.
However, we are not required to accept as true unwarranted inferences from facts or
argumentative allegations. Diess, 

935 A.2d at 903

. Further, we note that in denying
the Motion to Correct, the trial court cited not only the absence of individuals
involved in the sentencing hearing, but also the fact that “none of the requested
changes are substantive in nature[,] which would affect the outcome of this
matter.” (Trial Ct. Jan. 26, 2021 Order (emphasis added).) Reviewing everything
currently before us, we are satisfied that there are no factual disputes that are
authentic, real, or free from pretense that would directly affect the outcome of this
matter, nor are there genuine issues of material fact, that preclude us from ruling on
the Motion for Judgment on the Pleadings. Instead, the documents reflect that the
trial court ordered Elkington to pay costs during the sentencing hearing such that the
Department was authorized to deduct funds from Elkington’s inmate account to pay
those costs under Section 9728(b)(5).
       With regard to Elkington’s assertions that the trial court’s oral statements are
irrelevant because it is the written sentencing order that controls and the absence of
such sentencing order here renders the Department’s actions unlawful, we disagree.
Elkington’s own Petition refers to the sentencing hearing transcript and asks for the
deductions to cease until the Departments “provid[es] either a valid Sentencing

that signature, we believe it likely resulted from an oversight, and, therefore, are satisfied with the
authenticity of the signed and certified version now before the Court.


                                                 16
Order or transcript of [Elkington’s] Sentencing Hearing explicitly” imposing costs
on Elkington. (Petition ¶¶ 5, 13.) Further, the courts have considered sentencing
hearing transcripts in similar challenges in the absence of a written sentencing order.
See Mazer, 

24 A.3d at 482

. See also Gilmore, slip op. at 4-5 (relying on sentencing
hearing transcript and criminal docket to determine the terms of an inmate’s sentence
in the absence of a written sentencing order); Joseph, 

96 A.3d at 371

 (same).
Elkington asserts that the only operative document is a written sentencing order,
pursuant to Isabell, Commonwealth v. LeBar, 

860 A.2d 1105

 (Pa. Super. 2004), and
Quinlan, and that Mazer and the other cases relying on the sentencing hearing
transcripts are distinguishable because they did not involve disputes as to the
accuracy of those transcripts. Neither are persuasive reasons to deny judgment on
the pleadings.
        Isabell, LeBar, and Quinlan do not control because there were written
sentencing orders that controlled over the subsequent inconsistent actions by the
courts of common pleas, court clerks, or the Department. Isabell, 

467 A.2d at 1289,
1292-93

; LeBar, 

860 A.2d at 1111

; Quinlan, 

639 A.2d at 1237-38

. Here, there is no
specific written sentencing order, and, therefore, there can be no conflict with the
sentencing hearing transcript and related forms (the Sentencing Sheets and DC-300B
Form). As to Elkington’s claim that Mazer and the other cases that relied on the
sentencing hearing transcript are distinguishable, we disagree based on our
conclusion that there is no genuine dispute as to the sentencing hearing transcript
here.
        Finally, to the extent Elkington points out he was ordered to pay costs of
prosecution and not court costs and that the trial court did not calculate the costs,
these are not reasons to deny the Motion for Judgment on the Pleadings. Court costs



                                          17
and costs of prosecution are treated as one and the same. Mazer, 

24 A.3d at 483-84

.
It is unnecessary for the trial court to order the specific amount of costs to be
collected, and it is not unlawful for the court clerk to calculate the amount of the
costs at a later time. 

Id.

       Because there are no genuine issues of material fact in dispute relating to the
trial court’s ordering Elkington to pay costs during the December 26, 2010
sentencing hearing, the Department was authorized by Section 9728(b)(5) to deduct
funds from Elkington’s inmate account to pay for those court-ordered costs and is
entitled to judgment as a matter of law on that basis.10


   IV.      Conclusion
       For the foregoing reasons, we deny Elkington’s Motion for Summary
   Judgment, grant the Department’s Motion for Judgment on the Pleadings, and
   dismiss Elkington’s Petition.


                                               _____________________________________
                                               RENÉE COHN JUBELIRER, Judge



       10
           Because of our disposition, we do not address the Department’s assertion that the Petition
is barred in its entirety by sovereign immunity pursuant to Tate. However, we note that while
sovereign immunity precludes inmate claims seeking the restitution of funds alleged to have been
improperly deducted, Johnson v. Wetzel, 

238 A.3d 1172

, 1181 (Pa. 2020), Tate, 

133 A.3d at 359

-
60, claims seeking a prohibitory injunction to prevent the Department for further deductions are
not so barred, Lambing v. Pennsylvania Department of Corrections (Pa. Cmwlth., No. 488 M.D.
2017, filed July 23, 2020), slip op. at 4 n.2 and 9; see also Stackhouse v. Pennsylvania State Police,

892 A.2d 54

, 61 (Pa. Cmwlth. 2006) (holding that sovereign immunity does not bar suits seeking
prohibitory injunctions to restrain state action); Bonsavage v. Borough of Warrior Run, 

676 A.2d
1330

, 1331 (Pa. Cmwlth. 1996) (same). Although not binding, the unreported opinion in Lambing
is cited for its persuasive authority pursuant to Pennsylvania Rule of Appellate Procedure 126(b),
Pa.R.A.P 126(b), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a). Lambing is consistent with Stackhouse and Bonsavage.


                                                 18
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


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


                                     ORDER
      NOW, May 27, 2021, the Motion for Summary Judgment filed by Geoffrey
Elkington is DENIED, the Motion for Judgment on the Pleadings filed by the
Department of Corrections is GRANTED, and the Petition for Review in this matter
is DISMISSED.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge

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