H.M. v. R.M.-R.

• Court: Superior Court of Pennsylvania
• Decided: January 23, 2018
• Docket: 1401 MDA 2017
• Status: Unpublished

Opinion

J-S84009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

H.M. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : R.M.-R. : : Appellant : No. 1401 MDA 2017

Appeal from the Order Entered August 22, 2017 In the Court of Common Pleas of Schuylkill County Civil Division at No(s): S-475-16

BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 23, 2018

Appellant, R.M.-R. (“Father”) appeals from the August 22, 2017 order

denying his motion to proceed in forma pauperis (“IFP”) in the underlying

child custody action. After review, we quash the appeal.

Father and H.M. (“Mother”) are the parents of a daughter, R.M.

(“Child”), who was born in February of 2009. On May 5, 2016, following a

hearing, the trial court granted Mother sole legal and physical custody of

Child. Father currently is incarcerated due to multiple criminal convictions

stemming from his attempted murder of Mother; Father shot Mother in the

head while Child was in an adjacent room. Trial Court Opinion, 5/5/16, at 2.

On May 4, 2017, Father filed a pro se petition for modification of

custody. That same day, the Schuylkill County Prothonotary notified Father

that his petition was deficient due to his failure to file a praecipe for J-S84009-17

certification. The Prothonotary provided notice of this deficiency and

enclosed a praecipe for certification form for Father to complete and return.

Father did not comply with the Prothonotary’s directive.

On July 13, 2017, Father filed a second petition for custody. On July

13, 2017, the Schuylkill County Prothonotary notified Father that his petition

for custody was again deficient due to his failure to file a praecipe for

certification; additionally, the Prothonotary informed Father that he failed to

remit the required filing fee.

On August 17, 2017, Father filed an application for leave to proceed

IFP. In an order filed on August 22, 2017, the trial court denied Father’s

application for IFP status due to Father’s failure to complete the IFP

application form and provide precise answers to the inquiries on the form;

Father merely wrote “N/A” in response to each question. On September 5,

2017, Father filed a notice of appeal.

In an opinion filed on September 20, 2017, the trial court explained

that Father failed to serve the trial court with his notice of appeal and

statement of errors complained of on appeal pursuant to Pa.R.A.P. 905(a)(2)

and Pa.R.A.P. 1925(a)(2)(i). On September 21, 2017, this Court directed

Father to file a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925. Order, 9/21/17. Father filed a Pa.R.A.P. 1925(b)

statement on October 2, 2017, and on October 6, 2017, the trial court filed a

supplemental opinion in support of its August 22, 2017 order that denied

-2- J-S84009-17

Father IFP status. Supplemental Opinion, 10/6/17, at 1-3. The trial court

concluded by succinctly stating that nothing in the August 22, 2017 order

precluded Father “from amending the pertinent paperwork in an effort to

submit a proper application for in forma pauperis relief and petition to

modify the relevant order.” Id. at 3.

As noted above, Father’s IFP status was denied due to Father’s failure

to provide answers on a form because Father merely responded “N/A” to

every question on the IFP form. The questions on the form requested

information concerning, among other things, Father’s employment, income,

expenses, property, and dependents. Application for Leave to Proceed In

Forma Pauperis, 8/17/17, at 3-6. However, the trial court clarified that the

August 22, 2017 order was entered without prejudice to Father’s ability to

prepare and file the proper paperwork. Supplemental Opinion, 10/6/17, at

3. Therefore, the August 22, 2017 order did not end the litigation or put

Father out of court. Where an order denying IFP status does not put a

litigant out of court, the order is interlocutory and not immediately

appealable as of right. Goldstein v. Haband Co., Inc., 814 A.2d 1214,

1219 (Pa. Super. 2002) (citing Pugar v. Greco, 394 A.2d 542 (Pa. 1978));

compare Grant v. Blaine, 868 A.2d 400 (Pa. 2005) (holding that where an

order denying IFP status in connection with an inmate’s prison-condition

litigation had the practical consequence of putting the inmate out of court,

the order was a final, appealable order).

-3- J-S84009-17

We conclude that Appellant is not “out of court” and was provided an

opportunity to properly file an IFP application in pursuit of modification of

custody. Thus, the trial court’s order is interlocutory and not appealable.

We therefore quash the appeal.1

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/23/2018

____________________________________________

1 On November 16, 2017, Father filed a motion for leave to file a reduced number of copies of his brief, which we granted on November 21, 2017. However, we pointed out that because Father did not have IFP status on appeal, he was required to file four copies of the reproduced record. Order, 11/21/17. On November 29, 2017, Father filed an application to proceed IFP in this Court. In light of our disposition, Father’s application to proceed IFP on appeal is DENIED as moot.

-4-