H.M. v. R.M.-R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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