         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John J. Lynch,                        :
                   Appellant          :
                                      :
            v.                        :   No. 2467 C.D. 2015
                                      :   Submitted: April 1, 2016
Andrew L. Gittelmacher                :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                   FILED: June 8, 2016

            John J. Lynch, pro se, appeals a November 3, 2015, order of the Court
of Common Pleas of Montgomery County (trial court) denying his petition seeking
leave to proceed in forma pauperis in his civil action against Andrew Gittelmacher.
After careful review, we determine that the trial court did not set forth sufficient
reasons for denying Lynch’s petition as required by the Pennsylvania Rules of
Civil Procedure. Accordingly, we vacate the trial court’s order and remand for
further proceedings.
            By way of background, on or about July 2, 2015, Lynch filed a
complaint against Gittelmacher in the Philadelphia County Court of Common
Pleas raising allegations of harassment, assault, and threatening conduct by
Gittelmacher. Lynch sought damages of $150,000 and an injunction directing that
Gittelmacher have no contact with Lynch and remain a distance of 250 feet from
Lynch. On October 13, 2015, Lynch filed a praecipe for entry of default judgment
against Gittelmacher and a praecipe for writ of execution.
               On October 19, 2015, Lynch filed a praecipe for writ of execution,
together with a Petition to Proceed In Forma Pauperis (In Forma Pauperis
Petition) in the trial court. In the writ of execution, Lynch sought to have the
Montgomery County Sheriff levy Gittelmacher’s property; sell Gittelmacher’s
interest in a house located at 3769 Ridgeway Road, Huntingdon Valley,
Pennsylvania 19006, including its contents, furniture, appliances and all motor
vehicles on site; and levy all of Gittelmacher’s vehicles stored in a garage
belonging to Peter and Stewart Smith, located at 9351 Old Buselton Pike,
Philadelphia, PA 19115.
               On November 3, 2015, the trial court held a hearing and denied
Lynch’s request to proceed in forma pauperis. The trial court did not set forth any
reasons, either in the order or during the hearing, for its denial. On November 18,
2015, Lynch appealed to this Court.1
               On appeal,2 Lynch contends that the trial court abused its discretion
by denying his In Forma Pauperis Petition with “‘no basis’ in law or in fact.”
Appellant’s Brief at 13. In response, Gittelmacher argues, first, that Lynch’s
appeal is moot because the judgment which Lynch sought to enforce through the
praecipe for writ of execution has been vacated.                 Second, in the alternative,

1
  Generally, this Court does not hear appeals in a civil action between two private individuals.
Nevertheless, because Gittelmacher has not objected to our jurisdiction it is perfected. See Pa.
R.A.P. 742(a) (“The failure of an appellee to file an objection to the jurisdiction of an appellate
court on or prior to the last day under these rules for the filing of the record shall, unless the
appellate court shall otherwise order, operate to perfect the appellate jurisdiction of such
appellate court[.]”).
2
  This Court’s “scope of review of a trial court’s denial of an in forma pauperis application is
limited to determining whether constitutional rights were violated, or whether the trial court
abused its discretion or committed an error of law.” Bennett v. Beard, 919 A.2d 365, 366 n. 1
(Pa. Cmwlth. 2007).


                                                2
Gittelmacher argues that this Court should adopt the analysis of the trial court in its
Pennsylvania Rule of Appellate Procedure 1925(a) opinion.3
               First, we consider whether the trial court erred in dismissing Lynch’s
In Forma Pauperis Petition without explanation.                  Pennsylvania Rule of Civil
Procedure No. 240, which governs petitions to proceed in forma pauperis in civil
actions, provides in relevant part:

               (b) A party who is without financial resources to pay the costs
               of litigation is entitled to proceed in forma pauperis.
               (c) …

                       (3) Except as provided by subdivision (j)(2), the
                       court shall act promptly upon the petition and shall
                       enter its order within twenty days from the date of
                       the filing of the petition. If the petition is denied,
                       in whole or in part, the court shall briefly state its
                       reasons.
                                               ***

               (j)(1) If, simultaneous with the commencement of an action or
               proceeding or the taking of an appeal, a party has filed a
               petition for leave to proceed in forma pauperis, the court prior
               to acting upon the petition may dismiss the action, proceeding
               or appeal if the allegation of poverty is untrue or if it is satisfied
               that the action, proceeding or appeal is frivolous.



3
  In its 1925(a) opinion, the trial court explained that Pennsylvania Rule of Civil Procedure
240(j)(1) grants the trial court discretion to deny a request to proceed in forma pauperis when the
underlying petition is frivolous. See Trial Court opinion, 12/28/2015, at 4. The trial court
concluded that Lynch’s writ of execution was defective and frivolous because it sought to
execute on a default judgment entered in error, demanded that the Montgomery County Sheriff
sell real property in violation of the Rules of Civil Procedure, and requested that property located
in another county be attached. Id.


                                                 3
Pa. R.C.P. No. 240 (emphasis added). An order denying in forma pauperis status
in a civil case is a final and appealable order because “[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.” Grant v. Blaine, 868 A.2d 400, 402-03 (Pa. 2005).
             Here, the trial court did not provide a brief statement of its reasons for
denying Lynch’s Petition as required by Pa. R.C.P. No. 240(c)(3). “A trial court’s
belated 1925(a) opinion does not cure this problem, since the brief statement of
reasons enables the party to correct any defects in the petition and the 1925(a)
opinion does not.” Goldstein v. Haband Company, Inc., 814 A.2d 1214, 1215 (Pa.
Super. 2002). Because the trial court did not provide a brief statement of its
reasons at the time it denied Lynch’s Petition, we vacate the trial court’s order and
remand the matter for further proceedings.
             In its 1925(a) opinion, the trial court stated that it denied Lynch’s In
Forma Pauperis Petition on the basis of Pennsylvania Rule of Civil Procedure No.
240(j)(1). When a petition to proceed in forma pauperis is filed contemporaneous
with the commencement of an action, Pennsylvania Rule of Civil Procedure No.
240(j)(1) permits a court “prior to acting upon the [in forma pauperis] petition” to
“dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if
it is satisfied that the action, proceeding or appeal is frivolous.” Pa. R.C.P. No.
240(j)(1) (emphasis added). In its 1925(a) opinion, the trial court concluded that
Lynch’s writ of execution was defective and frivolous, but it did not dismiss the
writ, as authorized by Pa. R.C.P. No. 240(j)(1). Rather, it dismissed Lynch’s In
Forma Pauperis Petition. Pa. R.C.P. No. 240(j)(1) is irrelevant to a dismissal of an
in forma pauperis petition.




                                          4
             Finally, we consider Gittelmacher’s contention that this appeal is
moot as a result of a January 27, 2016, order of the Court of Common Pleas of
Philadelphia County vacating the judgment which Lynch sought to execute upon
through the filing of the praecipe for writ of execution in the trial court. The
present appeal concerns only the In Forma Pauperis Petition. The underlying
matter – the praecipe for writ of execution – is still pending before the trial court.
It is well established that an actual case or controversy must exist at all stages of
appellate review, and that the courts of this Commonwealth will not decide moot
questions.   In re Gross, 382 A.2d 116 (Pa. 1978); Strax v. Department of
Transportation, Bureau of Driver Licensing, 588 A.2d 87 (Pa. Cmwlth. 1991).
Because we are vacating the trial court’s order and remanding this matter back to
the trial court, we decline to address the mootness issue.
             For the above-stated reasons, we vacate the trial court’s order denying
Lynch’s Petition for Leave to Proceed In Forma Pauperis and remand this matter
to the trial court for further proceedings.


                                      _____________________________________
                                      MARY HANNAH LEAVITT, President Judge




                                              5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John J. Lynch,                           :
                  Appellant              :
                                         :
            v.                           :   No. 2467 C.D. 2015
                                         :
Andrew L. Gittelmacher                   :


                                   ORDER

            AND NOW, this 8th day of June, 2016, the order of the Court of
Common Pleas of Montgomery County dated November 3, 2015, in the above-
captioned matter is hereby VACATED and the case is REMANDED for
proceedings in accordance with the attached opinion.
            Jurisdiction relinquished.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge
