IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gerald S. Lepre, Jr., : Appellant : : v. : No. 2121 C.D. 2012 : Submitted: July 26, 2013 Susquehanna County Clerk of : Judicial Records and Susquehanna : County Court Collections : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: October 2, 2013 This is an appeal from an order of the Susquehanna County Court of Common Pleas (trial court) dismissing a mandamus action filed by appellant, Gerald S. Lepre, Jr. (Lepre), pro se, against the Susquehanna County Clerk of Judicial Records and Susquehanna County Court Collections (Defendants). Lepre sought an order directing Defendants to remove $601.35 in costs imposed on him as a result of his criminal conviction in 1998. The trial court dismissed Lepre s action on the ground that Lepre failed to appear for trial and failed to sustain his burden of proving that he had a clear right to the relief requested. We affirm. In January 9, 1998, Lepre was found guilty on a charge of theft by unlawful taking in Susquehanna County Criminal Case No. CP-58-CR-0000142-1997. On February 19, 1998, Lepre was sentenced by the Court of Common Pleas
of Susquehanna County on that conviction to six to twenty-three and one-half months imprisonment, and was ordered as part of that sentence to pay the cost of prosecution, administrative costs allowable or mandated by law and a fine of $750.00. (Sentence Order, Exhibit A to Defendants Brief against Motion for Summary Judgment.) A total of $673.75 in costs of prosecution and court and other administrative costs and a fine of $750.00 were assessed against Lepre pursuant to this sentence. (CP-58-CR-0000142-1997 Criminal Docket Sheet at 46-47, Complaint Exhibit 3.) On December 27, 2010, Lepre filed the instant mandamus action 1 against Defendants asserting that $601.35 of the costs assessed against him were improper because he had been found indigent and was granted in forma pauperis status in Criminal Case No. CP-58-CR-0000142-1997 and therefore allegedly could not be assessed court costs and costs of prosecution. (Complaint 5-8.) Defendants admitted that Lepre had been granted in forma pauperis status, but denied that his in forma pauperis status applied to costs imposed as a result of his conviction and sentence, and also asserted that Lepre s attack on the assessments was barred by the previous denial of motions filed by Lepre in 2006 challenging the costs assessed against him. (Answer and New Matter 5, 17-22.) On February 14, 2011, Lepre filed a motion for summary judgment, contending that the challenged $601.35 was improperly assessed against him because in forma pauperis status allegedly bars assessment of court costs and costs of prosecution as a matter of law. (Lepre s Brief in Support of Motion for Summary Judgment.) On 1 Lepre filed this action in this Court at 938 M.D. 2010. This Court ruled that it lacked original jurisdiction over this matter because it was brought against county officials, not against the Commonwealth or Commonwealth officials, and accordingly ordered the case transferred to the trial court. 2
February 17, 2012, the trial court denied this motion for summary judgment on the grounds that genuine material facts in dispute exist in this matter, and specifically rejected Lepre s legal contention that in forma pauperis status bars assessments of costs in a criminal case. (February 17, 2012 Trial Court Order.) Lepre filed a motion for reconsideration or certification for appeal of the denial of summary judgment, which the trial court denied on March 14, 2012. On March 30, 2012, Lepre filed a motion for judgment on the pleadings reiterating the same legal argument as in his summary judgment motion that his in forma pauperis status barred the assessments. (Motion for Judgment on the Pleadings at 2-3.) In April 2012, the judge who had ruled on the motion for summary judgment and motion for reconsideration of that ruling recused himself because Lepre had filed suit against him in federal court, and the President Judge of the 60 th Judicial District, Judge Kameen, was assigned to this case and two other cases to which Lepre was a party. (April 3, 2012 Trial Court Order; Administrative Unit V Judicial Assignment Form.) On July 12, 2012, following oral argument, the trial court denied Lepre s motion for judgment on the pleadings on the ground that Lepre had failed to show that he had a legal right to the remedy requested. (July 12, 2012 Trial Court Order.) On July 25, 2012, Lepre filed a praecipe to place the case on the next civil trial list. (Praecipe to Place Case at Issue.) On September 11, 2012, the trial court issued and mailed to both Lepre and counsel for Defendants an Order scheduling a non-jury trial for October 18, 2012. (Docket Entries at 3; September 11, 2012 Trial Court Order.) Lepre sought no continuance of that trial date. On October 18, 2012, Lepre failed to appear at trial, and the trial court dismissed the action on the grounds that Lepre, as a result of his failure to appear and introduce 3
evidence supporting his claims, had failed to sustain his burden to show that the challenged costs and fees were not validly imposed. (October 18, 2012 Trial Court Order.) On October 31, 2012, Lepre filed a motion for reconsideration and for recusal of Judge Kameen, contending that he had not received the Order scheduling trial and accusing Judge Kameen of bias against him. (Motion for Reconsideration, Recusal and Change of Venue.) In response to the trial court s orders scheduling a hearing on that motion to address Lepre s claim that he did not receive notice of the trial date, Lepre advised the trial court that he did not wish to present evidence on the motion and requested that the motion for reconsideration and recusal be submitted on briefs. (November 6, 2012 Trial Court Order; December 10, 2012 Trial Court Opinion; December 19, 2012 Trial Court Order; Motion for Briefing Date 5.) On November 8, 2012, while the motion for reconsideration and recusal was pending, Lepre filed the instant appeal. The trial court subsequently denied the motion for reconsideration and recusal. (January 29, 2013 Trial Court Order.) Lepre asserts three alleged errors in this appeal: 1) that his in forma pauperis status and Pa. R.C.P. No. 240 barred assessment of court costs and fees as a matter of law and he therefore was entitled to summary judgment and judgment on the pleadings in his favor; 2) that the trial court erred in dismissing the case because he allegedly did not receive notice of the trial date; and 3) that the judge assigned to the case should have recused himself. None of these arguments has merit. Mandamus is an extraordinary remedy used to compel the performance of a ministerial act or mandatory duty. Commonwealth v. Morales- 4
Rivera, 67 A.3d 1290, 1294 (Pa. Cmwlth. 2013); Orange Stones Co. v. City of Reading, Zoning Hearing Board, 32 A.3d 287, 290 (Pa. Cmwlth. 2011); DGD Realty Associates, L.P. v. Della Vecchia, 654 A.2d 626, 628 (Pa. Cmwlth. 1995). Our review in a mandamus action is limited to determining whether the trial court abused its discretion or committed an error of law. Morales-Rivera, 67 A.3d at 1292 n.2. A court may issue a writ of mandamus only where the plaintiff shows that he has a clear legal right to the relief requested, that the defendant has a corresponding duty to perform the requested act, and that there is no other appropriate and adequate remedy. Morales-Rivera, 67 A.3d at 1294; Orange Stones, 32 A.3d at 290; DGD Realty Associates, 654 A.2d at 628. The trial court here correctly concluded that Lepre did not have a clear legal right to relief and therefore could not satisfy the requirements for mandamus. Contrary to Lepre s assertions, in forma pauperis status does not bar assessment of court costs and costs of prosecution on a convicted defendant. The Sentencing Code expressly imposes court costs, including filing fees and sheriff s costs, on convicted defendants. 42 Pa. C.S. 9721(c.1); 42 Pa. C.S. 9728 (a), (b.2), (g) (providing that unless a court modifies the imposition of costs by order entered after a hearing under Pa. R. Crim. P. 706(C), [a]ny sheriff s costs, filing fees and costs of the county probation department, clerk of courts or other appropriate governmental agency shall be borne by the defendant ). Where, as here, the defendant s sentence includes costs of prosecution, those costs also include expenses incurred by the district attorney s office in the prosecution. Act of August 9, 1955, P.L. 323, 1403, as amended, 16 P.S. 1403 ( In any case where a defendant is convicted and sentenced to pay the costs of prosecution and 5
trial, the expenses of the district attorney in connection with such prosecution shall be considered a part of the costs of the case and be paid by the defendant ). Issues of the defendant s inability to pay are governed by Rule 706 of the Rules of Criminal Procedure, not the in forma pauperis provisions of Rule 240 of the Rules of Civil Procedure. Rule 706 of the Rules of Criminal Procedure does not bar assessment of costs based on indigency at the time of trial and conviction, but only provides for a hearing on ability to pay and for possible reduction or payment by installments before a defendant may be imprisoned for failure to pay or where the defendant requests a hearing on inability to pay the installments set by the court. Pa. R. Crim. P. 706; Commonwealth v. Childs, 63 A.3d 323, 326 (Pa. Super. 2013); Commonwealth v. Hernandez, 917 A.2d 332, 336-37 (Pa. Super. 2007). Lepre does not contend that any court reduced any of the costs assessed against him or removed any of the challenged items pursuant to a Rule 706 hearing. Rather, Lepre admits that the only relief granted to him following such a hearing was the establishment in 2006 of an installment payment plan, not a ruling that the amount of his costs obligation should be reduced for indigency. (Answer and New Matter 18-21; Reply to New Matter 3-6.) Neither of the cases argued by Lepre supports his claim that any of the costs assessed against him are improper. In Fordyce v. Clerk of Courts, 869 A.2d 1049 (Pa. Cmwlth. 2005), superseded by statute as stated in Morales-Rivera, 67 A.3d at 1292-93, this Court did not hold or suggest that in forma pauperis status or indigency constitute grounds to strike court costs or costs of prosecution imposed as a result of a conviction or as part of a criminal sentence. Rather, this Court in Fordyce held only that the particular type of cost challenged there, sheriff s transportation expense, was not included in the types of costs assessable against 6
convicted defendants under 16 P.S. 1403 and the language of 42 Pa. C.S. 9728(g) in effect at the time. 869 A.2d at 1051-54. Here, Lepre s only claim is that the costs cannot be assessed because of indigency, not that any of the costs are for items not assessable under 16 P.S. 1403 or 42 Pa. C.S. 9728(g). (Complaint 5-8, 12-13 & Exhibit 8.) Contrary to Lepre s contention, Commonwealth v. Lepre, 18 A.3d 1225 (Pa. Super. 2011), does not hold that Pa. R.C.P. No. 240 applies to court costs and costs of prosecution imposed as a result of a criminal conviction. Rather, the issue there was whether an appeal should be allowed to proceed in forma pauperis. The court looked to the case law in civil cases only for the standard for when a hearing is required before denying in forma pauperis status in a criminal appeal, and did not rely on or even cite to Pa. R.C.P. No. 240. 18 A.3d at 1226-27. The trial court s dismissal of Lepre s action following his failure to appear for trial did not deny him due process. The docket entries state that a copy of the Order setting the October 18, 2012 trial date was sent to Lepre on September 11, 2012 and there is no entry on the docket that the notice was returned by the postal authorities. (Docket Entries at 3.) That is sufficient to establish a presumption that Lepre received notice of the trial date and to place the burden of proof on Lepre to show that he in fact did not receive notice of the October 18, 2012 trial. Murphy v. Murphy, 988 A.2d 703, 710 (Pa. Super. 2010); Breza v. Don Farr Moving & Storage Co., 828 A.2d 1131, 1136 (Pa. Super. 2003); see also Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 41, 43 n.7 (Pa. Cmwlth. 2012) (en banc). Lepre asserted in his Motion for Reconsideration that he allegedly was unaware of any trial date scheduled in this matter, was never served with 7
any order setting this matter on a date certain for trial, and that he never received any notice of trial. (Motion for Reconsideration, Recusal and Change of Venue 3-4, 18.) Lepre, however, set forth no facts concerning his receipt of mail to support his unsworn contentions that he was not served with and did not receive the September 11, 2012 Order, and the record is clear that Lepre timely received the trial court orders mailed before and after the September 11, 2012 Order, as he took actions in response to those other orders. While Lepre was entitled to an opportunity to testify and introduce evidence to overcome the presumption that he received the September 11, 2012 Order and sustain his burden to show that he did not receive notice of the trial date, Volk, 49 A.3d at 41-47, he declined to do so. The trial court issued an Order scheduling a hearing on Lepre s motion for reconsideration at which evidence would be heard on the issue of whether Lepre received notice of the October 18, 2012 trial date. (November 6, 2012 Trial Court Order; December 10, 2012 Trial Court Opinion; December 19, 2012 Trial Court Order.) Lepre, however, advised the trial court that he did not wish to incur the cost and effort of appearing at an evidentiary hearing on his motion for reconsideration and requested that the motion be submitted on the papers. 2 (Motion for Briefing Date 5.) 2 It appears that the trial court would not have had jurisdiction to modify its final October 18, 2012 Order after this hearing under 42 Pa. C.S. 5505, as the trial court s November 6, 2012 Order ordered a hearing on the motion for reconsideration but did not expressly state that it vacated the October 18, 2012 Order or granted reconsideration, although its later Opinion of December 10, 2012 characterized the November 6, 2012 grant of a hearing as a grant of reconsideration on the issue whether Lepre had received notice of the trial date. See, e.g., Cheathem v. Temple University Hospital, 743 A.2d 518, 520-21 (Pa. Super. 1999) (order that schedules a hearing on motion for reconsideration but does not include language expressly granting reconsideration does not extend the 30-day period within which trial court has jurisdiction to act on motion for reconsideration). Lepre, however, did not refuse the opportunity to introduce evidence that he was not served with notice of the trial date on the ground that the (Footnote continued on next page ) 8
Moreover, any failure of notice would be harmless error, as the record establishes that Lepre was not entitled to relief as a matter of law. As is discussed above, the only claim asserted in Lepre s mandamus complaint was that his indigency and in forma pauperis status barred the costs and fees (Complaint 5-8, 12-13 & Exhibit 8), and that contention is legally invalid. No trial could change this. Lepre s complaint shows that the items that he challenged are clerk of court fees, court costs, sheriff s costs and district attorney costs (Complaint 7-8 & Exhibits 3 and 4), all of which are within the types of costs imposed on convicted criminal defendants by 16 P.S. 1403 and 42 Pa. C.S. 9728(g). 3 Lepre argues in his brief that some of the challenged items allegedly cannot be costs imposed by his conviction and sentence because [t]hese costs were added well after Appellant s sentence or prosecution. (Appellant s Brief at 14-15.) The court costs and costs of prosecution imposed by 16 P.S. 1403 and 42 Pa. C.S. 9728(g), however, include costs on post-conviction proceedings. Morales-Rivera, 67 A.3d at 1291-94. The documents attached to Lepre s complaint show that his appeals concerning his conviction were still pending until June 2007 and show no assessment of any costs or fees after the dismissal of the last appeal. (Complaint Exhibit 2.) Therefore, the fact that some of the costs and (continued ) trial court lacked jurisdiction or that participation in the hearing could not give him relief from the dismissal. Rather, he requested that the issue be decided on the briefs because he did not wish to expend the cost and effort of attending any hearing other than a trial of the merits of his mandamus claim. (Motion for Briefing Date 5.) 3 It also appears that Lepre s claims would be barred by the statute of limitations, as the costs were all assessed before 2007, years before he filed suit in 2010, and the statute of limitations for mandamus actions is six months. See Curley v. Smeal, 41 A.3d 916, 919 (Pa. Cmwlth. 2012). Because Defendants did not plead the statute of limitations as a defense, however, we cannot rest our decision on this ground. 9
fees may have been assessed years after Lepre was sentenced does not raise any doubt as to their validity. Lepre also contends that Defendants admitted in settlement negotiations that that some of the costs are improper. (Appellant s Brief at 7 n.2, 9, 16.) This, too, fails to show that Lepre had any valid claim for mandamus. Conduct and statements made in settlement negotiations in an action are inadmissible to prove the validity or invalidity of any claim in that action. Pa. R.E. 408(a). Defendants alleged admissions therefore could not be considered by the trial court and cannot be considered by this Court in this appeal. Lepre s remaining argument, that Judge Kameen should have recused himself, is waived. It is well established that any request for recusal or disqualification of the judge hearing a case must be made at the earliest possible time. Goodheart v. Casey, 523 Pa. 188, 199, 565 A.2d 757, 763 (1989); Residents of Buckingham Springs v. Bucks County Assessment Office, 60 A.3d 883, 888 (Pa. Cmwlth. 2013). Unless the appellant shows that he did not know of the grounds for disqualification and could not have learned of those grounds from publicly available information, failure to seek recusal of the trial judge prior to an adverse decision constitutes a waiver and bars attack on the judge s decision on the ground that he should have recused himself. Residents of Buckingham Springs, 60 A.3d at 888. Here, Lepre had been aware that Judge Kameen was assigned to this case since May 2012, when Judge Kameen issued the scheduling order on Lepre s Motion for Judgment on the Pleadings, and Lepre appeared before Judge Kameen on oral argument of that motion in July 2012. (May 8, 2012 Trial Court Order; July 9, 2012 Transcript of Oral Argument.) The documents attached to Lepre s 10
post-decision motion to recuse show both that Lepre was aware of what he contends constitute grounds for recusal, the judge s alleged ties to Forest City and its Chief of Police, by July 21, 2012, and that the only additional information on which Lepre bases his claim of bias was publicly available on the internet long before October 2012. (Motion for Reconsideration, Recusal and Change of Venue Exhibits 10-13.) Lepre, however, did not seek recusal until October 31, 2012, after the judge s ruling against him. Lepre s claims of alleged bias and argument that Judge Kameen erred in failing to recuse himself are therefore barred by waiver. Residents of Buckingham Springs, 60 A.3d at 888. For the above reasons, we affirm the trial court s order. JAMES GARDNER COLINS, Senior Judge 11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gerald S. Lepre, Jr., : Appellant : : v. : No. 2121 C.D. 2012 : Susquehanna County Clerk of : Judicial Records and Susquehanna : County Court Collections : O R D E R AND NOW, this 2 nd day of October, 2013, the order of October 18, 2012 of the Court of Common Pleas of Susquehanna County in the abovecaptioned case is AFFIRMED. JAMES GARDNER COLINS, Senior Judge