Kovalev, S. v. Stepansky, I.

• Court: Superior Court of Pennsylvania
• Decided: September 23, 2020
• Docket: 3484 EDA 2019
• Status: Unpublished

Opinion

J-S33018-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SERGEI KOVALEV : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : IRINA STEPANSKY, DMD, AND JOHN : No. 3484 EDA 2019 I DOE :

Appeal from the Order Entered November 25, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 191102324

BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 23, 2020

Sergei Kovalev (Appellant) appeals, pro se, from the order denying his

petition to proceed in forma pauperis (IFP Petition) in his action against Irina

Stepansky, DMD and John I. Doe. Upon review, we reverse and remand for

further proceedings.

On November 18, 2019, Appellant commenced this action by filing a pro

se complaint against Irina Stepansky, a dentist, and her unnamed dental

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* Former Justice specially assigned to the Superior Court. J-S33018-20

assistant. Stepansky and her assistant had treated Appellant in 2015 for a

chipped molar.1 The complaint asserted numerous causes of action, including

assault and battery, negligence, reckless endangerment, and false

imprisonment.2

Also on November 18, 2019, Appellant filed a petition to proceed in

forma pauperis (IFP Petition), asserting he lacked resources to pay the costs

of litigation. According to Appellant, he earned no income and his only

employment consisted of performing religious services for no compensation

(aside from “basic life supporting expenses” like food and shelter).

Before filing the instant action, Appellant initiated three separate cases

against the City of Philadelphia Board of Revision of Taxes. Appellant

contested the tax rates and proposed market value concerning three separate

real properties in Philadelphia purportedly owned by Appellant. Appellant

1Prior to this suit, Appellant filed a separate action against Stepansky, as well as certain corporate entities allegedly associated with Stepansky’s business. This Court affirmed the trial court’s order dismissing Appellant’s action and denying his request to file an amended complaint. See Kovalev v. Stepansky, 224 A.3d 754 at **5, 8 (Pa. Super. 2019) (unpublished memorandum) (noting Appellant never filed a required certificate of merit in support of his claim of professional negligence), appeal denied, 2020 Pa. LEXIS 3584 (Pa. 2020).

2Appellant’s claims against Stepansky are not relevant to this appeal. Briefly, however, he alleges “[Irina] Stepansky tricked [Appellant] to come to her dental office under expectation of receiving a simple dental procedure limited only to one tooth. During what should be a simple dental office visit, [Appellant] was severely assaulted and battered by [Irina] Stepansky and by her assistant, when Stepansky falsely imprisoned [Appellant] by using chemical restraints.” Complaint, 11/18/19, at ¶ 3.

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asserted that these properties are owned and controlled by the religious

institution he serves, not by him. See generally Appellant’s Brief at 16-19.

In each of the three cases mentioned above (collectively, the “prior tax

appeals”), Appellant filed petitions to proceed IFP (collectively, the “other IFP

petitions”), each of which the trial court denied. This Court thereafter quashed

Appellant’s appeals, ruling that the orders were not final and appealable. See

Kovalev v. Bd. of Revision, 2898 EDA 2019 (Pa. Super. 2019) (unpublished

order); Kovalev v. Bd. of Revision, 2899 EDA 2019 (Pa. Super. 2019)

(unpublished order); Kovalev v. Bd. of Revision, 2900 EDA 2019 (Pa.

Super. 2019) (unpublished order) (collectively, “Kovalev Superior”). The

Pennsylvania Supreme Court subsequently granted allowance of appeal and

vacated this Court’s decisions. See Kovalev v. Bd. of Revision, 2020 Pa.

LEXIS 3667 (July 8, 2020) (per curiam); Kovalev v. Bd. of Revision, 2020

Pa. LEXIS 3668 (July 8, 2020) (per curiam); Kovalev v. Bd. of Revision,

2020 Pa. LEXIS 3669 (July 8, 2020) (per curiam) (collectively, “Kovalev

Supreme”).

By order entered in this case on November 25, 2019 (IFP Order), the

trial court denied Appellant’s IFP Petition, rejecting his claim of inadequate

resources. The court based its ruling on evidence presented at a hearing on

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September 23, 2019 (the “September IFP hearing”), which was conducted in

the prior tax appeals. Appellant timely filed a pro se notice of appeal.3

In its Pa.R.A.P. 1925(a) opinion,4 the trial court recommended that we

quash the appeal as being taken from an unappealable, interlocutory order.

See Trial Court Opinion, 12/23/19, at 2 (unnumbered) (citing the decisions in

Kovalev Superior, and emphasizing that “the [IFP Petition] filed in the

matter sub judice was nearly identical to the [other] petitions filed by

[Appellant] in the prior tax appeal[s].”).

We must first determine whether we have jurisdiction.5 In one of the

three issues Appellant raises on appeal, he contends, “the trial court abused

its discretion when the court erroneously argued in its Pa.R.A.P. 1925(a)

opinion that the order denying [the IFP] Petition is not final or appealable.”

Appellant’s Brief at 5 (some capitalization omitted). We agree.

It is well-established that orders denying in forma pauperis status are

final and appealable. See Roberts v. United States Dist. Court, 339 U.S.

844 (1950) (per curiam); Grant v. Blaine, 868 A.2d 400, 402-03 (Pa. 2005)

3In December 2019, Appellant filed an Application to proceed IFP, which was deferred to this panel.

4 The trial court did not order Appellant to file a Rule 1925(b) concise statement.

5 This Court previously issued a rule upon Appellant to show cause whether the IFP Order was appealable or interlocutory; Appellant filed a timely response.

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(citing Roberts and stating that such orders are appealable, as a “litigant who

is denied the ability to bring a cause of action due to his true inability to pay

the costs is effectively put out of court.”); Amrhein v. Amrhein, 903 A.2d

17, 19 (Pa. Super. 2006). Indeed, our High Court recently reversed this

Court’s jurisdictional determination to the contrary in connection with the prior

tax appeals. See Kovalev Supreme, supra. Accordingly, the trial court in

this case erred in finding jurisdiction lacking.

We next address the merits of Appellant’s remaining two issues on

appeal:

1. Whether the trial court abused its discretion when on November 22, 2019 (order docketed on November 25, 2019), it issued an order denying [the IFP] Petition of [Appellant], who was an indigent person and had the statutory and constitutional rights to access the court and to address his grievances[?]

2. Whether the trial court abused its discretion when[,] without evidentiary hearing[,] it denied on November 22, 2019 (order docketed on November 25, 2019) [the IFP Petition?]

Appellant’s Brief at 5 (issues renumbered, some capitalization omitted).6

We address Appellant’s issues simultaneously, mindful of our standard

of review: “In reviewing a trial court’s resolution of an application to proceed

6 Appellant’s brief fails to comply with Pa.R.A.P. 2119(a), as the argument section issue headings do not correspond with the issues Appellant sets forth in his statement of questions presented. However, we will overlook this defect. See Branch Banking & Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super. 2006) (stating this Court is willing to liberally construe materials filed by a pro se litigant).

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in forma pauperis, we reverse only if the court abused its discretion or

committed an error of law.” D.R.M. v. N.K.M., 153 A.3d 348, 350-51 (Pa.

Super. 2016) (citation omitted).

The Pennsylvania Rules of Civil Procedure provide that a “party who is

without financial resources to pay the costs of litigation is entitled to

proceed in forma pauperis.” Pa.R.C.P. 240(b). That party is required to file a

petition and an affidavit describing in detail the inability to pay the costs of

litigation. See Pa.R.C.P. 240(c), (h); see also Pa.R.A.P. 561 (governing IFP

verified statement). In the instant case, Appellant complied with these rules.

Appellant argues that the trial court erred in denying the IFP Petition

without conducting a separate hearing, and relying on the September IFP

hearing conducted in the prior tax appeals. See Appellant’s Brief at 13-17,

23-24. We agree.

This Court explained:

[t]he mere filing of a praecipe for IFP status will not automatically establish the petitioner’s right to proceed in that status. The court must satisfy itself of the truth of the averment of inability to pay. If it believes the petitioner’s averments, there is no requirement that the court conduct an evidentiary hearing. The trial court has considerable discretion in determining whether a person is indigent for purposes of an application to proceed in forma pauperis. However, in making that determination, it must focus on whether the person can afford to pay and cannot reject allegations contained in an application without conducting a hearing.

Amrhein, 903 A.2d at 19-20 (citations omitted); see also Crosby Square

Apts. v. Henson, 666 A.2d 737, 739 (Pa. Super. 1995) (stating when a

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petitioner avers a prima facie case of poverty and an inability to pay fees and

costs, the trial court must hold a hearing before it may deny IFP status).

Here, the trial court based its denial of the IFP Petition solely on the

evidence adduced at the September IFP hearing. See IFP Order, 11/25/19,

at 1. Indeed, the court acknowledged that this hearing was conducted “in

other matters involving [Appellant,]” i.e., the prior tax appeals. Id.

(emphasis added)). Importantly, the certified record does not contain the

transcript from the September IFP hearing.7 Nor did the trial court attach

the transcript as an exhibit to the IFP Order, despite having explicitly

referenced the September IFP hearing. See, e.g., Hassel v. Franzi, 207

A.3d 939, 950 n.1 (Pa. Super. 2019) (“for purposes of appellate review, what

is not of record does not exist.”).

Generally, it “is the obligation of the appellant to make sure that the

record forwarded to an appellate court contains those documents necessary

to allow a complete and judicious assessment of the issues raised on appeal.”

Twp. of N. Fayette v. Guyaux, 992 A.2d 904, 905 n.2 (Pa. Super. 2010),

(citation omitted)). However, an appellant is not required to ensure that the

record contains a transcript from an entirely unrelated docket; this is

particularly the case where, as here, the trial court expressly referenced a

transcript at a different docket in support of its ruling, but failed to ensure it

7 Indeed, there is no hearing listed on the trial court’s docket in this case.

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was included in the record. Without the IFP transcript, we are unable to

conduct a meaningful analysis of whether the trial court properly denied

Appellant’s IFP Petition. We have often emphasized the importance of having

a complete record. See, e.g., Commonwealth v. O’Black, 897 A.2d 1234,

1238 (Pa. Super. 2006); see also id. (stating that “it is not the responsibility

of this [C]ourt to obtain a copy of [a needed] transcript”).

Accordingly, we are constrained to remand this matter for a hearing

consistent with Pa.R.C.P. 240. From the hearing, the trial court should

consider evidence of, inter alia, Appellant’s income, assets, debts,

dependents, and monthly expenditures as they pertain to the IFP Petition.8

Finally, we deny Appellant’s application for this Court to grant him IFP status.

Order reversed. Case remanded. Application to proceed IFP denied.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/23/2020 ____________________________________________

8 Although Appellant’s IFP Petition made a prima facie showing of his inability to pay the costs of litigation, we remind Appellant of his obligation to present evidence supporting this claim at the hearing. See Crosby Square Apts., supra.

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