J. A17039/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
UNITED WHOLESALE MORTGAGE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KELLY DUTTON, : No. 3282 EDA 2018
:
Appellant :
Appeal from the Order Entered October 18, 2018,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. 180503355
BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 25, 2019
Kelly Dutton appeals pro se from the October 18, 2018 order entered
by the Court of Common Pleas of Philadelphia County denying his motion to
proceed in forma pauperis. After careful review, we affirm.
The trial court set forth the following factual and procedural history:
[United Wholesale Mortgage] commenced this action
against [appellant] by complaint. [Appellant] filed
preliminary objections in conjunction with a petition to
proceed in forma pauperis (“IFP petition”), which
was assigned to [the trial] court. As is permitted
under Pa.R.C[iv].P. 240(c), the [trial] court reviewed
the IFP petition to determine whether [appellant] was
without financial resources to pay the costs of
litigation.
In the “average monthly expenses” section of the IFP
petition, the only expense listed was $1,100.00 for
housing. [Appellant’s] current employment was listed
as “health aid[e]” with a monthly income of
$1,300.00. [Appellant] also acknowledged having
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equity in four properties located in Philadelphia. By
order dated September 27, 2018[,] the [trial] court
denied [appellant’s] IFP petition for failure to
demonstrate a lack of financial resources to pay the
costs of litigation and required [appellant] to pay the
requisite filing fees within twenty days of the
docketing of the order.[Footnote 2]
[Footnote 2] The [trial] court found the
statements contained in the IFP petition
credible, but did not find that such
averments warranted a finding of poverty.
To that end, the [trial] court did not
conduct an evidentiary hearing.
[Appellant] failed to pay the requisite filing fees and
instead filed a second IFP petition on October 16,
2018. This second IFP petition identified [appellant’s]
monthly expenses as $100.00 for housing, $100.00
for food, and $2,000.00 for “bankruptcy monthly
payment.”[Footnote 3] The second IFP petition again
listed [appellant’s] current employment as “health
aid[e]” with a monthly income of $1,300.00, but it
also listed “$1,000 in rental income.” Lastly, in the
“property owned” section, [appellant] listed
$130,000.00 cash and the same four properties in
Philadelphia. The [trial] court denied this IFP petition
as well, by order dated October 18, 2018, pursuant to
the [trial] court’s previous order denying [appellant’s]
IFP petition.
[Footnote 3] There is no suggestion of
bankruptcy on the docket and no
indication, other than his statement, that
[appellant] has declared bankruptcy.
[Appellant] subsequently filed a motion for
reconsideration of the [trial] court’s October 18, 2018
order. . . .
....
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By order dated October 25, 2018[,] the [trial] court
denied the motion for reconsideration. This appeal
followed.
Trial court opinion, 12/11/18 at 1-2 (extraneous capitalization, Footnote 1,
and citation omitted).
The trial court did not order appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On
December 11, 2018, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant raises the following issue for our review: “When the [trial]
court denied appellant [sic] [IFP petition], were appellant [sic] rights
violated?” (Appellant’s brief at 2.)
We will reverse a trial court’s disposition of an IFP petition only upon a
finding that the trial court abused its discretion. Crosby Square Apartments
v. Henson, 666 A.2d 737, 738 (Pa.Super. 1995), citing In re Adoption of
B.G.S., 614 A.2d 1161 (Pa.Super. 1992). Further, “if a trial court disbelieves
the averments in [a petition] to proceed in forma pauperis, it is required to
hold a hearing on the [petition] to determine the veracity of the allegations
contained therein.” Crosby Square Apartments, 666 A.2d at 738, citing
Griffin v. Tedesco, 486 A.2d 419 (Pa.Super. 1984).
Appellant argues that the trial court erred because it did not consider
that appellant had bankruptcy proceedings pending when he filed his
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IFP petitions. (Id. at 3-4.) Appellant also contends that the trial court erred
when it refused to hold an evidentiary hearing.
Our review of the record supports the trial court’s conclusion that there
is no indication that appellant has declared bankruptcy, nor is there any
reference to any bankruptcy proceedings pending within the certified record.
(See trial court opinion, 12/11/18 at 2 n.3.) The trial court also found the
statements in appellant’s petition to be credible, thus precluding the need for
an evidentiary hearing. (Id. at 2 n.2.)
Based on the record before us, we can discern no abuse of discretion on
the part of the trial court. We, therefore, affirm the trial court’s order denying
appellant’s IFP petition. We do so, however, without prejudice to appellant to
present further information to the trial court pertaining to any bankruptcy
proceedings with which he may be involved, particularly as it would relate to
any interest he may have in the properties listed in his IFP petition. Clearly,
on its face, the IFP petition presented to the trial court would warrant denial.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/19
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