IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aquil Johnson, :

Petitioner :

 :

v. : No. 497 M.D. 2018

 : Submitted: July 23, 2021

John Wetzel, Secretary PA. D.O.C., :

Mark Garman, Super., S.C.I. :

Rockview et al., Officers, Agents, :

Servants, Employees and Attorneys, :

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE J. ANDREW CROMPTON, Judge 

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: December 23, 2021

Following remand, before the Court are cross-motions for judgment on the 

pleadings, 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). Aquil Johnson 

(Johnson) commenced this matter in our original jurisdiction by filing a pro se

petition for review, which Johnson subsequently amended, asserting John Wetzel, 

Secretary PA. D.O.C., Mark Garman, Super., S.C.I. Rockview, et al., Officers, 

Agents, Servants, Employees and Attorneys (collectively, Respondents) are 

wrongfully deducting monies from his inmate account to satisfy financial obligations 

associated with two criminal convictions. Johnson contends judgment should be 
2

entered in his favor because Respondents failed to respond to his “New Matter,”

wherein Johnson asserted that Section 9721(c.1) of the Sentencing Code, 42 Pa.C.S. 

§ 9721(c.1), cannot be applied to him because the offenses for which he was 

convicted occurred before the section’s effective date. As Respondents filed no 

reply, resulting in the allegations being deemed admitted, and since there is no signed 

sentencing order, Johnson claimed he is entitled to judgment in his favor. 

Respondents maintain the deductions, commonly referred to as Act 84 deductions,

are proper under Section 9728(b)(5), 42 Pa.C.S. § 9728(b)(5), and Section 9721(c.1)

of the Sentencing Code. To the extent Johnson was denied pre-deprivation process, 

Respondents submit that any due process violation was cured by providing Johnson

with post-deprivation process pursuant to the Supreme Court’s directive in Bundy v. 

Wetzel, 184 A.3d 551 (Pa. 2018). Upon review of the pleadings, we deny both crossmotions. 

I. BACKGROUND

Johnson initiated this action by filing a Petition for Review (Initial Petition) 

on or about July 19, 2018, and thereafter filed an Amended Petition for Review 

(Amended Petition), with leave of Court, on or about August 20, 2018.

1

 Therein, 

Johnson alleged as follows. On March 15, 2013, the Court of Common Pleas of 

Philadelphia County (Sentencing Court) sentenced Johnson for two unrelated 

criminal matters at dockets CP-51-CR-0004249-2007 and CP-51-CR-0001587-

2009. (Amended Petition (Am. Pet.) ¶ 13.) According to Johnson:

the [S]entencing [C]ourt never informed [Johnson] of the total amount 

of cost[s] owed or that the [Department of Corrections (Department)] 

1 The Amended Petition was filed after Respondents filed preliminary objections to the 

Initial Petition. 
3

was going to deduct funds from [his] Inmate Account[; Johnson] was 

never provided with the [Department]’s Policy regarding collection of 

cost[s] and fines nor was [Johnson] given an ability to pay hearing or 

an opportunity to contest and object. 

(Id. ¶ 14.) 

In June 2013, the Department allegedly “made the first deduction from 

[Johnson]’s inmate account with[]out any notice whatsoever or any opportunity for 

[Johnson] to contest and object.” (Id. ¶ 15.) The following month, when Johnson 

learned of the deduction, Johnson contacted an inmate counselor who allegedly 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. ¶ 16.) 

Approximately five years later, Johnson filed a grievance (First Grievance)

after receiving a copy of the Supreme Court’s decision in Bundy. In Bundy, the 

Supreme Court held that, in order to satisfy due process, the Department must advise 

an inmate, prior to the first deduction, “of the total amount of [the inmate’s] financial 

liability as reflected in [the] sentencing order, as well as the Department’s policy 

concerning the rate at which funds will be deducted . . . and which funds are 

subjection to deduction.” 184 A.3d at 558. In addition, the Supreme Court required 

the Department to provide “the inmate a reasonable opportunity to object to the 

application of the Department’s policy to [the inmate’s] account.” Id. at 559. 

Johnson avers the First Grievance was granted in part and denied in part. (Am. Pet. 

¶ 18.) Specifically, he claims “[i]t was granted in regard[] to not receiving notice of 

deductions or an opportunity to contest,” and “[i]t was denied in regard[] to receiving 

a refund or damages from the failure to provide notice and an opportunity to contest 

and object.” (Id.) Johnson appended a copy of the response to the First Grievance 

to his Initial Petition, which he incorporated into the Amended Petition as Exhibit 
4

GR. The response stated, in pertinent part: “In this grievance[,] you state that you 

were not given notice of deductions, nor were you given a hearing to determine your 

ability to pay [f]ines, [c]ourt [c]osts, restitution, and [Crime Victims Compensation 

Fund fees]. Attached is the Notice . . . .” (Initial Petition (Initial Pet.), Exhibit (Ex.)

GR.) The response further stated: “Uphold in part in regard to not receiving the 

assessment notice. The document is attached to this response.”2 (Id.) Finally, the 

response advised Johnson that deductions would be suspended for 15 working days 

to allow Johnson time to submit official court documentation showing the 

assessments were invalid. (Id.) 

Johnson averred that he appealed the denial of the First Grievance and filed 

another grievance (Second Grievance), which was also denied. (Am. Pet. ¶ 18.) The 

response to the Second Grievance was also appended as an exhibit to Johnson’s 

Initial Petition, as Exhibit GR2. The response stated: “Included in the grievance 

response to [the First Grievance] you were provided with the Assessment Notice.” 

(Initial Pet., Ex. GR2.) The Second Grievance denial was also appealed. (Initial 

Pet., Ex. GRA2.) In his appeal, Johnson stated “Post[-]deprivation notice does not 

excuse or cure a failure to give pre[-]deprivation notice.” (Id.) Johnson’s appeals 

were also denied. 

Johnson asserted his procedural due process rights were violated as he was 

not provided pre-deprivation notice or an opportunity to object prior to the first 

deduction being made. (Initial Pet. ¶ 23.) Johnson further asserted that he was 

entitled to an ability-to-pay hearing because there was a change in circumstances, 

namely a change in Department policy and his financial status, which hindered his 

ability to access the courts and challenge his convictions. (Id. ¶¶ 27-45.) Johnson 

2

Johnson did not attach the documents that were allegedly attached to the response with 

his Exhibit.
5

also contended that the Sentencing Court did not sign the sentencing orders in which 

the costs were allegedly imposed, only a court clerk did, and, therefore, Respondents 

were not authorized to make the deductions in the absence of such an order. (Id.

¶¶ 46-50.) Finally, Johnson alleged in the Amended Petition that Respondents

negligently handled his personal property. Johnson requested damages in the 

amount of $859.80, which represented the amount deducted from his inmate account 

as of the date of the Amended Petition, interest, and nominal damages.3 (Am. Pet. 

¶ 27.)

Respondents filed Preliminary Objections in the nature of a demurrer, which 

this Court granted. See Johnson v. Wetzel (Pa. Cmwlth., No. 497 M.D. 2018, filed 

June 3, 2019) (Johnson I), affirmed in part and reversed in part, 238 A.3d 1172 (Pa. 

2020) (Johnson II). There, we held Johnson’s “negligence” claim was based on 

intentional conduct and, therefore, barred by sovereign immunity. Johnson I, slip 

op. at 11-12. As for Johnson’s claim that there was a lack of a signed sentencing 

order, we held that Sections 9728(b)(5) and 9721(c.1), which authorize the 

Department to deduct certain costs even in the absence of a court order, applied 

because they were in effect at the time of sentencing in 2013 and placed Johnson “on 

notice of the Department’s statutory authority to deduct funds from his account.” 

Id., slip op. at 14 (internal quotations omitted). We further held that the Department 

was not required to hold an ability-to-pay hearing based on changed circumstances 

as Johnson did not allege the threat of additional confinement or increased conditions 

of supervision for failing to pay the costs. Id., slip op. at 15-16. In addition, we 

found Johnson was not denied due process since the Sentencing Code automatically 

imposes liability for costs, not fines. Id., slip op. at 16. In relation to whether the 

3 Although proceeding pro se, Johnson also requested “[a]attorney fees if or when they 

become applicable.” (Am. Pet. ¶ 27.) 
6

Department was required to provide Johnson with notice prior to beginning 

deductions, we determined there was a factual issue as to whether Respondents were 

entitled to qualified immunity. Id., slip op. at 20-21. Nonetheless, the Court granted 

Respondents’ preliminary objection to those claims based on the running of the 

applicable statute of limitations, which we found was not tolled by the doctrine of 

fraudulent concealment. Id., slip op. at 22-25. Accordingly, the Court dismissed the 

Amended Petition in its entirety. Johnson then appealed this decision to the Supreme 

Court. 

On appeal, the Supreme Court affirmed in part and vacated this Court’s order 

in part. See Johnson II. The Supreme Court held that the purported negligence claim 

was, in substance, a procedural due process claim. Id. at 1180-81. It further held, 

as discussed more fully below, that inmates who are denied pre-deprivation process 

before Act 84 deductions commence must be afforded certain post-deprivation 

process. Id. at 1182. Because it was unclear from the record whether all the required 

post-deprivation process was provided in response to the First Grievance, the 

Supreme Court remanded the matter for development of the factual record. Id. at 

1183. The Supreme Court otherwise affirmed this Court’s order as it related to the 

negligence and administrative ability-to-pay hearing claims. Id. at 1185.

Following remand, Respondents filed an Answer and New Matter, admitting 

to the deductions, which were made, they contend, pursuant to the Sentencing 

Court’s directive. In their New Matter, Respondents averred that “[i]t [wa]s unclear 

whether [Johnson] received notice of Act 84 deductions before his first deduction,” 

but Johnson “received post-deprivation due process.” (Respondents’ New Matter 

¶ 9.)4 Specifically, Respondents allege that, in response to the First Grievance, an 

4 Respondents’ New Matter is misnumbered and contains two paragraphs numbered 9 and 

two paragraphs numbered 10. These averments are contained in both paragraphs numbered 9. 
7

accountant for the Department (Accountant) provided Johnson with a copy of a 

notice for Act 84 deductions, one for each of Johnson’s criminal cases. (Id. ¶¶ 14-

15.) According to Respondents, “the [n]otice provided the amount owed in costs for 

each case as well as the documentation that was relied upon to make the assessment,” 

referenced Act 84 and DC-ADM 005, which is the Department’s policy related to 

“Collection of Inmate Debts,” described the Department’s policy, and provided 

approximately 10 examples of challenges to the deductions. (Id. ¶¶ 16-18.) In 

addition, Respondents averred that the response suspended deductions for 15 

working days to afford Johnson an opportunity to grieve the deductions’ legitimacy. 

(Id. ¶ 19.) To their Answer and New Matter, Respondents attached a copy of 

Johnson’s First Grievance, the response upholding and denying it in part, along with 

a copy of the purported notice for each case that was referred to therein. (Id., Ex. C.) 

In his reply to the New Matter, Johnson denied Respondents’ allegations as to 

post-deprivation notice, stating he “never received any notice from [Accountant] or 

anyone else. The only thing ever provided to [Johnson] was the grievance response. 

No notice was attached nor subsequently provided.” (Johnson’s Answer to New 

Matter ¶ 16.)5 

On the same day he filed his reply to Respondents’ New Matter, Johnson filed 

a standalone document titled “Petitioner’s New Matter.” Therein, Johnson alleged, 

for the first time, that this Court erred in applying Section 9721(c.1) of the 

Sentencing Code, which authorizes the deductions of costs even in the absence of a 

court order, to him because he committed his offenses in 2007 and 2008, which was 

before the section’s effective date in December 2010. (Johnson’s New Matter ¶¶ 11-

5

Johnson’s reply to the New Matter is numbered in sequence, without regard to the 

Respondents’ misnumbering of the averments in the New Matter. Therefore, this reply 

corresponds with paragraph 14 of Respondents’ New Matter. 
8

12.) Johnson claimed the date of the offense, not the date of sentencing, should 

control. (Id. ¶¶ 5-9.) To hold otherwise, Johnson asserted, would violate the ex post 

facto clauses.

6

 (Id. ¶ 12.) Johnson averred that this Court previously found that 

Section 9721(c.1) was penal in nature and, therefore, could not be applied 

retroactively without violating the prohibition against ex post facto laws. (Id. ¶ 13

(citing Rega v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 244 M.D. 2017, filed Jan. 31, 

2018)).)7 Because Section 9721(c.1) took effect after Johnson committed his crimes, 

Johnson averred a signed order of the Sentencing Court was required before 

Respondents could lawfully deduct funds from his inmate account. (Id. ¶ 14.) 

Johnson then reiterated his claim that the sentencing orders here were not signed by 

the Sentencing Court but were instead signed by a court clerk. (Id. ¶ 19.) As a result, 

Johnson asked this Court to “re-examine” its holding from Johnson I, wherein the 

Court stated that “Sections 9728(b)(5) and 9721(c.1) of the Sentencing Code were

in effect at the time Johnson was sentenced,” thus distinguishing this matter from 

Rega, “and reverse as a matter of law.” (Johnson’s New Matter ¶ 21 (citing Johnson 

I, slip op. at 14 & n.11).) 

Although Johnson’s “New Matter” contained a notice to plead, Respondents 

filed no reply.8 Rather, on April 9, 2021, Respondents filed their Motion for 

Judgment on the Pleadings. Therein, Respondents contend the sole issue before the 

6 Article I, section 17 of the Pennsylvania Constitution provides, “No ex post facto law . . . 

shall be passed.” Pa. Const. art. I, § 17. The United States Constitution has two provisions that 

prohibit ex post facto laws, one, contained in Article I, Section 9, Clause 3 of the United States 

Constitution, U.S. Const. art. I, § 9, cl. 3, which applies to Congress, and the other, contained in

Article I, Section 10, Clause 1 of the United States Constitution, U.S. Const. art. I, § 10, cl. 1, 

which applies to the states.

7 Unreported panel decisions of this Court may be cited for their persuasive value pursuant 

to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b), and Section 

414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).

8 As discussed more fully below, Johnson’s New Matter was procedurally improper.
9

Court following remand from the Supreme Court is “whether [Johnson] received 

post-deprivation due process in accord with Bundy,” which they contend he has. 

(Respondents’ Motion ¶ 4.) Respondents assert Johnson received adequate postdeprivation due process when Accountant responded to the First Grievance by 

enclosing a copy of the notices for each case, which satisfied all the requirements of 

Johnson II and Bundy. Respondents further assert that Johnson “admitted he was 

receiving post-deprivation notice, but he failed to acknowledge it in his response to 

Respondents’ New Matter.” (Id. ¶ 36.) In particular, Respondents cite Johnson’s 

statement in a grievance appeal involving the Second Grievance in which Johnson 

states, “[p]ost[-]deprivation notice does not excuse or cure a failure to give pre[-

]deprivation notice.” (Id. ¶ 37 (quoting Initial Pet., Ex. GRA2) (internal quotations 

omitted).) In their supporting brief, Respondents acknowledge that Johnson “now 

denies ever receiving notice and contests that he was provided with post-deprivation 

due process” but contend that “the pleadings before this Court, to include the 

exhibits, establish that he received notice [and], in fact, he admits to receiving notice, 

but asserts that because it did not occur before the first deduction that it violated 

Bundy.” (Respondents’ Brief (Br.) at 13.) Respondents also assert that Johnson 

“does not mention in his grievance documents that he did not receive the notices that 

are repeatedly mentioned by the staff member that is responding to his grievances.” 

(Id.) Because the deductions were proper and any due process violation was cured 

by the post-deprivation process provided, Respondents ask the Court to enter 

judgment in its favor. 

On April 15, 2021, Johnson filed his Cross-Motion for Judgment on the 

Pleadings. Therein, Johnson asserts Respondents failed to respond to Johnson’s 

New Matter, and, therefore, the factual averments contained therein are deemed 
10

admitted. He asks that the Court enter judgment in his favor as a matter of law or, 

in the alternative, that this matter be submitted for a jury trial to determine the 

material facts that remain in dispute. In his brief, Johnson reasserts that this Court 

erred in applying Section 9721(c.1) to him in violation of the prohibition against ex 

post facto laws because the date of the offense, not the date of sentencing, controls, 

and here the offenses for which Johnson was convicted occurred prior to the 

enactment of Section 9721(c.1). He also argues that Respondents’ motion should be 

denied because there are material facts that remain in dispute, namely, whether postdeprivation process was provided. Johnson argues Respondents make a “[b]ald 

assertion without any proof” and did not provide any evidence to support its claim 

that the notice was actually delivered. (Johnson’s Br. at 14.) 

In opposition to Johnson’s cross-motion, Respondents assert that Johnson’s 

purported New Matter was inappropriate because Respondents did not assert a 

counterclaim that would have permitted such a pleading. (Respondents’ Br. at 5 

n.2.) Respondents further contend that the “New Matter” is “entirely based on legal 

argument,” and only factual averments are deemed admitted by a failure to respond. 

(Id.)

II. DISCUSSION

A. General Legal Principles

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.” Pa.R.A.P. 1532(b). Rule 

1532(b) encompasses motions for summary judgment, as well as motions for 

judgment on the pleadings, as we have here. Id., Note. Such motions are considered 
11

under the general standards governing those motions. POM of Pa., LLC v. Dep’t of 

Revenue, 221 A.3d 717, 722 n.7 (Pa. Cmwlth. 2019). “When ruling on a motion for 

judgment on the pleadings in our original jurisdiction, we must view all of the 

opposing party’s allegations as true, and only those facts that the opposing party has 

specifically admitted may be considered against the opposing party.” Bolus v. 

Fisher, 785 A.2d 174, 176 n.4 (Pa. Cmwlth. 2001); see also 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, “[w]e may consider only the pleadings 

themselves and any documents properly attached thereto.” Bolus, 785 A.2d at 176 

n.4. Further, motions for judgment on the pleadings may be granted “only when 

there is no genuine issue of fact and the moving party is entitled to judgment as a 

matter of law.” Id. The moving party bears the burden of establishing the lack of a 

genuine issue of material fact. Hughes v. Council 13, Am. Fed. of State, Cnty. & 

Mun. Emps., AFL-CIO, 629 A.2d 194, 195 (Pa. Cmwlth. 1993). The Court “need 

not accept as true conclusions of law, unwarranted inferences from fact, 

argumentative allegations, or expressions of opinion.” Diess v. Pa. Dep’t of Transp., 

935 A.2d 895, 903 (Pa. Cmwlth. 2007) (quotation omitted). 

With these principles in mind, we turn to the parties’ motions.

B. Johnson’s Motion

Section 9728(b)(5)(i) of the Sentencing Code provides:

The Department . . . shall make monetary deductions of at least 25% of 

deposits made to inmate wages and personal accounts for the purpose 

of collecting restitution, costs imposed under section 9721(c.1), filing 

fees to be collected under section 6602(c)[, 42 Pa.C.S. § 6602(c),]

(relating to prisoner filing fees) and any other court-ordered obligation.

42 Pa.C.S. § 9728(b)(5)(i). Section 9721(c.1) further provides:
12

Mandatory payment of costs.--Notwithstanding the provisions of 

section 9728 . . . or any provision of law to the contrary, in addition to 

the alternatives set forth in subsection (a), the court shall order the 

defendant to pay costs. In the event the court fails to issue an order 

for costs pursuant to 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. The 

provisions of this subsection do not alter the court’s discretion under 

Pa.R.Crim.P. [] 706(C) (relating to fines or costs).

42 Pa.C.S. § 9721(c.1) (emphasis added). 

This provision was added to Section 9721 by Section 2 of the Act of October 

27, 2010, P.L. 949, and was to take effect in 60 days, or on December 27, 2010. 

Johnson contends that, because he committed the offenses for which he was 

convicted before Section 9721(c.1) took effect, its application to him violates the 

prohibition against ex post facto laws. He further asserts that because Respondents 

did not reply to the “New Matter” in which he raised this issue, the allegations are 

deemed admitted and he is entitled to judgment in his favor as a matter of law. 

Respondents reply that the “New Matter” was improper as they did not assert any 

counterclaims or cross-claims. We agree.

Rule 1017(a) of the Pennsylvania Rules of Civil Procedure, Pa.R.Civ.P. 

1017(a), governs which pleadings are allowed. It provides that, except for actions 

involving asbestos litigation,

the pleadings in an action are limited to

(1) a complaint and an answer thereto,

(2) a reply if the answer contains new matter, a counterclaim or a crossclaim,

(3) a counter-reply if the reply to a counterclaim or cross-claim contains 

new matter, [and]
13

(4) a preliminary objection and a response thereto.

Id. 

New matter is governed by Rule 1030 of the Pennsylvania Rules of Civil 

Procedure, which provides: 

(a) Except as provided by subdivision (b), all affirmative defenses 

including but not limited to the defenses of accord and satisfaction, 

arbitration and award, consent, discharge in bankruptcy, duress, 

estoppel, failure of consideration, fair comment, fraud, illegality, 

immunity from suit, impossibility of performance, justification, laches, 

license, payment, privilege, release, res judicata, statute of frauds, 

statute of limitations, truth and waiver shall be pleaded in a responsive 

pleading under the heading “New Matter.” A party may set forth as 

new matter any other material facts which are not merely denials of the 

averments of the preceding pleading.

(b) The affirmative defenses of assumption of the risk, comparative 

negligence and contributory negligence need not be pleaded.

Pa.R.Civ.P. 1030.

Respondents filed an Answer, along with New Matter, in which they asserted 

their affirmative defenses. Under Rule 1017(a)(2), it was appropriate for Johnson to 

file a reply to the New Matter, which he did. However, Johnson also separately filed 

his own “New Matter,” although no counterclaim or cross-claim had been asserted 

against him, to which he would have needed to raise any affirmative defenses. Thus, 

Johnson’s “New Matter” was procedurally improper.

However, the averments contained within Johnson’s “New Matter” appear to 

respond to assertions made in Respondents’ New Matter, which would have been 

proper for Johnson to include in his Reply to Respondents’ New Matter. For 

instance, Respondents cite Section 9721(c.1) for support of their averment that, at 

the time of sentencing, “court costs were implied, and the Clerk of Court was 
14

authorized to calculate those costs.” (Respondents’ New Matter ¶ 3.) In response 

to this averment, Johnson replied “DENIED. 42 Pa.C.S. § 9721(c.1[]) was 

inapplicable to [Johnson] where [Johnson’s] alleged crimes were committed before 

the effective date of that statute.” (Johnson’s Answer to Respondents’ New Matter

¶ 3.) Johnson’s averments in his “New Matter,” which was filed the same day, 

simply elaborated on why Johnson believed Section 9721(c.1) did not apply to him. 

Under these circumstances, we will consider the allegations contained within 

Johnson’s “New Matter” but will not penalize Respondents for not responding to the 

allegations therein since there was no obligation to do so under the Rules of Civil 

Procedure. Thus, we will not consider those allegations deemed admitted for failing

to file a reply but, instead, as deemed denied pursuant to Pennsylvania Rule of Civil 

Procedure 1029, Pa.R.Civ.P. 1029.9 Moreover, we note that Rule 1029(a) only 

requires that “each averment of fact” be admitted or denied, Pa.R.Civ.P. 1029(a)

(emphasis added), and Johnson’s “New Matter” largely contains legal argument or 

conclusions, to which no response is required. In short, Johnson is not entitled to 

judgment in his favor on this claim solely because Respondents did not respond to 

the “New Matter.”

9 Rule 1029(b), (d), provides, in relevant part: 

. . . .

(b) Averments in a pleading to which a responsive pleading is required are admitted 

when not denied specifically or by necessary implication. . . .

. . . .

(d) Averments in a pleading to which no responsive pleading is required shall be 

deemed to be denied. 

Pa.R.Civ.P. 1029(b), (d).
15

Turning to the merits of Johnson’s argument that application of Section 

9721(c.1) to Johnson would violate the prohibition against ex post facto laws, we 

also disagree. As we stated in Johnson I, “Sections 9728(b)(5) and 9721(c.1) of the 

Sentencing Code were in effect at the time Johnson was sentenced.” Johnson I, slip 

op. at 14. Although he did not appear to raise our alleged error in his appeal to the 

Supreme Court, upon remand, Johnson now attempts to argue that the date of the 

underlying offense is what controls. Besides being potentially waived, the 

argument is also without merit. 

It is true, as Johnson points out, that the date of the offense is used for purposes 

of determining whether a statute violates the ex post facto clause in some 

circumstances. For instance, Johnson cites Commonwealth v. Wood, 208 A.3d 131, 

138 (Pa. Super. 2019),10 in which the Superior Court held that the application of the 

Sexual Offender Registration and Notification Act (SORNA)11 to individuals who 

committed their offenses before its effective date would have the effect of increasing 

their punishment in violation of the prohibition against ex post facto laws. However, 

for purposes of imposing costs, we have looked to the date of the sentencing instead. 

In Commonwealth v. Morales-Rivera, 67 A.3d 1290, 1293 (Pa. Cmwlth. 2013), this 

Court rejected the petitioner’s argument that application of an amended version of 

Section 9728(g) of the Sentencing Code, which now allows for the recovery of 

transportation costs, violated the prohibition against ex post facto laws because the 

earlier version did not. We held that “[b]ecause the amended version of Section 

9728(g) was in effect at the time of [] sentencing, it applied to [the petitioner.]” Id.

10 Generally, Superior Court decisions are not binding on this Court but may be cited for 

their persuasive value. Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. 

Cmwlth. 2018).

11 42 Pa.C.S. §§ 9799.10-9799.42. 
16

(emphasis added). Similarly, in Buck v. Beard, we held that Act 84 deductions from 

the inmate’s account did not violate the ex post facto clause “because Act 84 was 

enacted on June 18, 1998, . . . and the trial court did not sentence [the inmate] until 

February 16, 2001.” 834 A.2d 696, 701-02 (Pa. Cmwlth. 2003) (emphasis added). 

Therefore, amendments to statutes that occur prior to sentencing do not always 

violate the prohibition against ex post facto laws. 

Johnson’s reliance on this Court’s prior decision in Rega likewise does not 

entitle him to judgment in his favor. In fact, Rega supports this Court’s conclusion 

that it is the date of sentencing that matters for purposes of determining whether a 

statute imposing costs violates the ex post facto prohibition. In Rega, in support of 

preliminary objections in the nature of a demurrer, the respondents attempted to rely 

on Section 9721(c.1) to support their claim that a court order was not needed to 

collect costs and fees. We rejected that argument, stating:

The problem with [the r]espondents’ reliance on Section 9721(c.1) is 

that it was not enacted until 2010, long after Rega was sentenced.

[]

 As 

a result, [the r]espondents cannot rely on Section 9721(c.1) to excuse 

the absence of a court order because such application would constitute 

an ex post facto law.

Rega, slip op. at 7-8 (emphasis added) (footnote omitted). 

Here, Johnson was sentenced in 2013, which was after Section 9721(c.1) took 

effect. Therefore, we cannot agree with Johnson that its application to him would 

violate the ex post facto prohibition. Because it is not clear, as a matter of law, that 

judgment should be entered in Johnson’s favor, we must deny Johnson’s Motion. 

C. Respondents’ Motion

In Bundy, an inmate challenged Act 84 deductions on the basis that he was 

denied due process, namely pre-deprivation notice and a hearing before deductions 
17

started. The Pennsylvania Supreme Court noted that it had never previously 

examined due process principles in relation to the deduction of funds from inmate 

accounts, but the United States Court of Appeals for the Third Circuit had in 

Montanez v. Secretary Pennsylvania Department of Corrections, 773 F.3d 472 (3d 

Cir. 2014). The Pennsylvania Supreme Court

agree[d] with the Third Circuit’s holding that, to comply with due 

process, the Department must, prior to the first deduction: (a) inform 

the inmate of the total amount of his financial liability as reflected in 

his sentencing order, as well as the Department’s policy concerning the 

rate at which funds will be deducted from his account and which funds 

are subject to deduction; and (b) give the inmate a reasonable 

opportunity to object to the application of the Department’s policy to 

his account. . . . These measures will help protect against errors in the 

Department’s application of its Act 84 deduction policy without 

significantly impeding its ability to carry out essential functions. 

Bundy, 184 A.3d at 558 (internal citations omitted). 

In Johnson II, the Pennsylvania Supreme Court addressed the applicability of 

its holding in Bundy to individuals whose first Act 84 deductions occurred before 

Bundy or the Third Circuit’s decision in Montanez was decided. It held that “when 

pre-deprivation process is not feasible,” such as in this situation, “‘the availability 

of a meaningful post-deprivation remedy satisfies due process.’” Johnson II, 238 

A.3d at 1182 (quoting Bundy, 184 A.3d at 557). Accordingly, the Supreme Court 

held that

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.
18

Id. at 1183. Because the record was not clear at that procedural stage (preliminary 

objections) to determine whether the post-deprivation requirements were satisfied, 

the Supreme Court remanded the matter for further factual development. Id.

Following the close of the pleadings, Respondents assert they are entitled to 

judgment in their favor as a matter of law because Johnson was provided with postdeprivation process as the law requires. Specifically, they claim that in response to 

the First Grievance, Johnson was provided two notices, one for each of his criminal 

cases. The notices: (1) informed Johnson of the amounts owed; (2) notified Johnson 

that the Department would “begin making deductions from [Johnson’s] inmate 

account to satisfy the financial obligations in accordance with . . . Act 84 and” the 

Department’s policy, DC-ADM 005, which governs “Collection of Inmate Debts”; 

(3) identified which funds would be subject to deduction and detailed how such 

deductions would be made; (4) advised Johnson that he could file a grievance to 

challenge the accuracy of the deductions; and (5) provided 10 examples of bases to 

challenge the deductions. (Answer and New Matter, Ex. C.) 

Respondents recognize that Johnson now denies receiving these notices but 

assert, nonetheless, that he previously acknowledged their receipt when he stated, in 

a grievance appeal involving the Second Grievance, that “[p]ost[-]deprivation notice 

does not excuse or cure a failure to give pre[-]deprivation notice.” (Respondents’ 

Motion ¶ 37 (quoting Initial Pet., Ex. GRA2).) Unfortunately for Respondents, the 

Court cannot infer receipt from such a statement. As explained above, “[w]hen 

ruling on a motion for judgment on the pleadings in our original jurisdiction, we 

must view all of the opposing party’s allegations as true, and only those facts that 

the opposing party has specifically admitted may be considered against the opposing 

party.” Bolus, 785 A.2d at 176 n.4. The Court need not accept unwarranted 
19

inferences from fact as true. Diess, 935 A.2d at 903. That is what Respondents are 

asking this Court to do. Johnson explicitly denied receiving the notices purportedly

provided, stating he “never received any notice from [Accountant] or anyone else. 

The only thing ever provided to [Johnson] was the grievance response. No notice 

was attached nor subsequently provided.” (Johnson’s Answer to New Matter ¶ 16.)

A statement that “[p]ost[-]deprivation notice does not excuse or cure a failure to give 

pre[-]deprivation notice,” does not equate to an admission of receiving the alleged 

post-deprivation notice. (Initial Pet., Ex. GRA2.) Accordingly, we agree with 

Johnson that a genuine issue of material fact remains, which precludes entry of 

judgment as a matter of law in Respondents’ favor. Thus, Respondents’ Motion is 

also denied.

III. CONCLUSION

Based upon the foregoing, because neither party has shown that they are 

entitled to judgment as a matter of law in their favor, the cross-motions are denied. 

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aquil Johnson, :

Petitioner :

 :

v. : No. 497 M.D. 2018

 : 

John Wetzel, Secretary PA. D.O.C., :

Mark Garman, Super., S.C.I. :

Rockview et al., Officers, Agents, :

Servants, Employees and Attorneys, :

Respondents :

O R D E R

NOW, December 23, 2021, the parties’ cross-motions for judgment on the 

pleadings are DENIED.

_____________________________________

RENÉE COHN JUBELIRER, Judge