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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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