                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT


BRIAN SHORE,                                  :   No. 25 MAP 2017
                                              :
                    Appellant                 :   Appeal from the Commonwealth Court
                                              :   Order dated April 19, 2017, exited April
                                              :   20, 2017, at No. 94 MD 2017.
             v.                               :
                                              :
                                              :
PENNSYLVANIA DEPARTMENT OF                    :
CORRECTIONS,                                  :
                                              :
                    Appellee                  :


                              CONCURRING STATEMENT

JUSTICE WECHT                                                  FILED: January 18, 2018

      Dating back to the Magna Carta and its tenets of basic fairness is the maxim that

the poor must have the ability to access the courts of justice.1 The authority of the

judiciary to permit litigants to proceed in forma pauperis (“IFP”) mitigates the formidable

cost of litigation to the indigent, ensuring that our courthouse doors are always open,

even to those who are poor. This is the promise of Rule 240 of the Pennsylvania Rules

of Civil Procedure. Pa.R.C.P. 240. But this promise may prove illusory to the prisoner

who seeks to litigate a non-frivolous claim, but is blocked at the outset by an

insurmountable filing fee. For many prisoners, filing a complaint in state court can mean

choosing between pursuing a valid cause of action and acquiring day-to-day


1
       Nulli vendemus, nulli negabimus aut differemus, rectum aut justiciam. “To no
one will we sell, to no one deny or delay right or justice.” Magna Carta, 40 John (1215)
(translated into English by G.R.C. Davis, Magna Carta 23-33 (London: British Museum,
1963)).
necessities, a dilemma that necessarily undermines the promise provided by the Magna

Carta and our jurisprudential foundations.

      Presently before this Court is the Commonwealth Court’s denial of the IFP

petition filed pro se by Brian Shore. Shore is a prison inmate. He filed a petition

pursuant to Rule 240 reflecting that he is incarcerated. Despite Shore’s incarceration,

the Commonwealth Court denied his petition, because the approximately $200 balance

in his prison account exceeded the $67.50 filing fee for his complaint.      This Court

affirms this determination by per curiam order. Based upon our deferential standard of

review, I am constrained to concur in this disposition. I agree that the Commonwealth

Court probably did not abuse its discretion in denying IFP status in this case. However,

the Commonwealth Court’s rejection of Shore’s petition based upon this single factor

gives me some pause, considering that the filing fee constitutes one-third of Shore’s net

worth. I write here to express my concern over the lack of guidelines pertaining to a

court’s exercise of discretion under Rule 240.

      In Pennsylvania, 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) (emphasis added).

This rule recognizes that court costs may be impossible for some litigants to afford. The

rule permits the indigent litigant to present her claims in state court and to access the

justice system without paying costs or fees to the court.       Pa.R.C.P. 240(f).    The

petitioner files the petition to proceed IFP simultaneously with the commencement of the

action, on a form prescribed by the rule. Pa.R.C.P. 240(c), (h). This form requires the

petitioner to list wages and other income, assets, debts and obligations, and

dependents. It includes as “other income” social security benefits, support payments,

disability payments, unemployment compensation and supplemental benefits, workers’

compensation, public assistance, and “other.” Pa.R.C.P. 240(h).




                                   [25 MAP 2017] - 2
       Prior to acting upon a petition to proceed IFP, a trial court may dismiss the action

“if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or

appeal is frivolous.”   Pa.R.C.P. 240(j)(1).    A frivolous action is one that “lacks an

arguable basis either in law or in fact.” Pa.R.C.P. 240, Note (citing Neitzke v. Williams,

490 U.S. 319 (1989)). This provision permits the trial court to review the merits of the

complaint before determining whether to grant IFP status to the litigant.         See, e.g.,

Jones v. Doe, 126 A.3d 406 (Pa. Cmwlth. 2015); Ocasio v. Prison Health Services, 979

A.2d 352 (Pa. Super. 2009); Bennett v. Beard, 919 A.2d 365 (Pa. Cmwlth. 2007).

       An order denying a petition to proceed IFP is a final, appealable order, Grant v.

Blaine, 868 A.2d 400, 402 (Pa. 2005), which is reviewed for an abuse of discretion or an

error of law. Amrhein v. Amrhein, 903 A.2d 17, 19 (Pa. Super. 2006). “An abuse of

discretion is not merely an error of judgment, but if in reaching a conclusion the law is

overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record,

discretion is abused.” Paden v. Baker Concrete Constr., Inc., 658 A.2d 341, 343 (Pa.

1995) (citing Mielcuszny v. Rosol, 176 A. 236 (Pa. 1934)).

       The abuse of discretion standard is highly deferential. This does not mean that

discretion is unlimited or unfettered. In the IFP context, guidance is scarce, both for the

trial court making the initial decision and for the appellate court reviewing that decision.

Rule 240 provides the procedure for obtaining IFP status, but articulates no standards.

Through precedent, courts of this Commonwealth have held that the considerations that

drive the IFP determination cannot be reduced to a simple formula of assets and debts.

Rather, upon receipt of a petition to proceed IFP, the trial court must satisfy itself of the

truth of the averments contained therein, In re Adoption of B.G.S., 614 A.2d 1161 (Pa.

Super. 1992), and consider all of the facts and circumstances of the litigant’s situation,




                                    [25 MAP 2017] - 3
both financial and personal. Stein Enterprises, Inc. v. Golla, 426 A.2d 1129, 1132 (Pa.

1981); see also D.R.M. v. N.K.M., 153 A.3d 348, 351 (Pa. Super. 2016) (providing that

the litigant’s “expenses and the realities of life” were appropriate considerations in

resolving a request to proceed IFP); Gerlitzki v. Feldser, 307 A.2d 307, 308 (Pa. Super.

1973) (holding that the poverty required in the then-existing IFP statute “does not refer

solely to a petitioner’s ‘net worth’ but to whether he is able to obtain the necessities of

life”).

          In this case, Shore submitted the form required by Rule 240(h), averring that he

had no material assets and asserting that he lacked the financial resources to pay the

costs of litigation. Shore’s net worth was limited to the approximately $200 balance in

his prison account. The Commonwealth Court held no hearing on Shore’s petition.

Rather, based solely upon the balance of Shore’s prison account, the Commonwealth

Court held that Shore could afford the $65.50 filing fee, and denied IFP status. In

rejecting Shore’s petition, the Commonwealth Court has concluded that an inmate for

whom the filing fee constitutes one-third of his net worth has the financial resources to

file a claim.2

          Before this Court, Shore asserts that the expenses for which he is responsible

include personal hygiene products such as soap, shampoo, toothpaste, lotion,

deodorant, toothbrushes, mouthwash, dental floss, band-aids, tissues, combs, Q-tips,

nail clippers, razors, sewing kits, laundry detergent, over-the-counter medication, and a

$5 co-pay every time he visits the doctor for his chronic back and knee pain. Although

2
        This is not the first time this Court has been confronted with the Commonwealth
Court’s denial of IFP status based upon the amount in the inmate’s account exceeding
the filing fee. See, e.g., Amodeo v. Pennsylvania Dep’t of Corr., 12 M.D. 2017 (Pa.
Cmwlth. Feb. 15, 2017), aff’d per curiam, 170 A.3d 991 (Pa. 2017) (revocation of IFP
status); Amodeo v. Pennsylvania Dep’t of Corr., 536 M.D. 2016 (Pa. Cmwlth. Oct. 21,
2016), aff’d per curiam 168 A.3d 135 (Pa. 2017).



                                     [25 MAP 2017] - 4
the Department of Corrections (“DOC”) provides Shore with three uniforms per year,

Shore asserts that these items wear out within the year and that he is compelled to

purchase additional clothing with his own funds, as well as shoes with which to

exercise. In addition, Shore must spend his limited funds on pens, pencils, paper,

greeting cards, and phone cards to stay in contact with family.             For any formal

correspondence or legal filings, Shore is responsible for the costs of a typewriter,

typewriter ribbon, correction tape, envelopes, and copy cards. Shore asserts that he

must maintain a balance in his prison account so that he is ready and able to draft and

print motions and briefs related to his litigation, so that he is able continuously to

replenish his supplies, and because an inmate generally should maintain an emergency

fund to cover unforeseen expenses such as additional postage, or to pay the expenses

associated with leaving prison when permitted to attend the funeral of a family member.

Shore earns approximately $50 per month in his prison job.

       Shore did not apprise the Commonwealth Court of his financial obligations when

he submitted his petition to proceed IFP, as is required by Rule 240(h). For this reason,

and this reason alone, there is no record basis to conclude that the Commonwealth

Court abused its discretion in rejecting Shore’s petition. See Amrhein, 903 A.2d at 22

(requiring the trial court to consider not only the litigant’s income, but also the litigant’s

debts and obligations as delineated in the IFP petition).

       If the record supported Shore’s assertions regarding his monthly financial

obligations, I would reject the Commonwealth Court’s conditioning of Shore’s ability to

present potentially meritorious claims upon his willingness to part with one-third of his

assets. This 33% financial burden that the Commonwealth Court imposed upon Shore

is equivalent to imposing a filing fee of $6,600 upon a litigant whose net worth is

$20,000, or imposing a filing fee of $41,250 upon a litigant who has $125,000 in assets.




                                     [25 MAP 2017] - 5
This is, as Shore argues, preposterous. It does not become less so by virtue of Shore’s

status as an inmate.

       I cannot endorse a construction of the inability to pay required by Rule 240 that

simply identifies whether the balance in the prisoner’s account exceeds the filing fee in

order to demarcate paupers from those considered prosperous enough to pay the fee.

Such an approach disregards the realities of the financial obligations imposed upon

those who, although wards of the state, still must bear a measure of financial

responsibility for meeting their day-to-day needs. It is commonly understood that the

state provides the necessities of life to inmates. See, e.g., Buck v. Beard, 879 A.2d 157

(Pa. 2005). Even though the state is obligated to pay for an inmate’s housing, food,

medical care, and clothing, it furnishes only the minimum requirements to meet these

basic needs. The state is under no obligation to pay for those small physical and

material items that might ameliorate some part of the harsh reality of prison life. In

addition, prisoners have limited ability to increase their paychecks. The denial of IFP

status places significant burdens upon prisoners earning meager incomes.

       As the Superior Court has held, IFP status must be considered in light of the

necessities of life, and cannot be denied because the individual has some extravagant

expense, Schoepple v. Schoepple, 361 A.2d 665, 667 (Pa. Super. 1976), or net worth,

Gerlitski, 307 A.2d at 308.     And this Court has established that the calculation of

whether an individual is entitled to IFP status is not a mathematical exercise of offsetting

credits against debits. Stein Enterprises, 426 A.2d at 1132. Rather, all of the factors of

the litigant’s situation must be taken into account. “[I]f the individual can afford to pay

court costs only by sacrificing some of the items and services which are necessary for

his day-to-day existence, he may not be forced to prepay costs in order to gain access

to the courts, despite the fact that he may have some ‘excess’ income or unencumbered




                                    [25 MAP 2017] - 6
assets.” Id. Although a trial court must exercise its discretion in determining whether to

excuse the petitioner from paying the costs of litigation, the trial court should not deny

access to the courts simply because of the petitioner’s ability to pay “for small physical

or material comforts.” In re Smith, 600 F.2d 714, 716 (8th Cir. 1979).

       The United States Supreme Court unanimously has observed that obtaining IFP

status does not require one to demonstrate absolute destitution; no party must be made

to choose between abandoning meritorious litigation or foregoing the necessities of life.

Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Similarly, over

forty years ago, the Third Circuit held that “we do not think that prisoners must totally

deprive themselves of those small amenities of life which they are permitted to acquire

in a prison or a mental hospital beyond the food, clothing, and lodging already furnished

by the state. . . . [t]hese need not be surrendered in order for a prisoner or a mental

health patient to litigate in forma pauperis in the district court.” Souder v. McGuire, 516

F.2d 820, 824 (3d Cir. 1975) (emphasis added); see also Smith, 600 F.2d at 715 (“We

cannot accept a construction of [28 U.S.C. § 1915] which conditions the presentation of

possibly meritorious claims on the plaintiff’s willingness to become completely

destitute.”).

       Consistent with this precedent, consideration of the individual circumstances of a

prisoner involves more than a comparison between the balance of the inmate’s prison

account and the requisite filing fees.    It also encompasses an examination of the

prisoner’s monthly expenditures and, more broadly, a recognition that prisoners are

often, due to their status as prisoners, indigent.       These inmates are faced with

unenviable choices; choosing, for example, between making co-payments for needed

medical care and bringing a lawsuit to challenge DOC policies. By restricting the ability

of prisoners to bring a lawsuit without consideration of the expenses to which the




                                    [25 MAP 2017] - 7
prisoner is obligated, and without recognizing the practical necessity of maintaining an

emergency fund of money, our courts may be creating an arbitrary barrier to accessing

the legal system. When the filing fee represents a significant portion of the prisoner’s

assets, denying IFP status may effectively put the prisoner out of court. See Grant, 868

A.2d at 403 (improper denial of IFP status is an improper denial of access to the courts,

in that 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).

       Prior to passage of the federal Prisoner Litigation Reform Act of 1996 (the

“PLRA”),3 an indigent prisoner was able to sue in federal court without paying filing fees.

28 U.S.C. § 1915(a) (1948). Federal courts in some districts established inflexible dollar

limits on the funds a prisoner could possess and still be granted IFP status. FEDERAL

JUDICIAL CTR., RESOURCE GUIDE        FOR   MANAGING PRISONER CIVIL RIGHTS LITIGATION 18

(1996) (such districts include the District of Arizona ($400); Southern District of

California ($400); Middle District of Florida ($120); District of Kansas ($150); District of

New Jersey ($200); Western District of Oklahoma ($200); and Western District of

Missouri ($1,200)).     The Courts of Appeals viewed these inflexible standards with

disfavor, finding that they unduly restricted access to the courts. Id. (citing Souder, 516

F.2d at 823–24 (reversing the denial of IFP status premised upon an account balance of

$50.07); Smith, 600 F.2d at 716 (reversing the denial of IFP status as to the litigation




3
        With the PLRA, Congress made prisoners ineligible for waiver of the filing fee.
28 U.S.C. § 1915(b)(1) (1996). A prisoner who is granted IFP status is permitted to pay
the filing fee in an initial partial payment followed by installment payments. Id. §
1915(b). The ability to pay the filing fee over time, rather than upfront, depends upon
the inmate’s statement of assets and a certified copy of the inmate’s account statement
for the prior six months. Id. at § 1915(a). Like Rule 240, the PLRA provides procedure
but no guidelines.



                                      [25 MAP 2017] - 8
expenses to a prisoner where the filing fee represented about 30% of the prisoner’s

account balance)).

       Prisoners have a due process right of access to the courts, Lewis v. Casey, 518

U.S. 343, 350–51 (1996); Burns v. Ohio, 360 U.S. 252, 258 (1959), and the right to test

the constitutional adequacy of their treatment against legal standards intended to

delineate the limits of correctional authority.4      Rule 240 offers court access for

impecunious litigants, including prisoners, seeking to redress wrongs. However, the

lack of guidance in Rule 240 for addressing petitions to proceed IFP may present an

obstacle to judicial efficiency, and leaves me questioning whether there is a better way.

       For instance, rather than addressing petitions to proceed IFP on a case-by-case

basis without the use of objective standards, perhaps trial courts should have financial

guidelines available to consult and to guide their exercise of discretion.           These

standards could be public and available to prisoners who seek IFP status, and could be

consulted along with an evaluation of individual circumstances. Clear standards would

mitigate the appearance of arbitrariness that the abuse of discretion standard permits.

       Although Rule 240(h) requires the trial court to consider government benefits as

income in determining whether an individual has the resources to pay the costs of

litigation, the Superior Court has interpreted the Rule as not permitting the trial court to

consider the eligibility requirements for government benefit programs. D.R.M., 153 A.3d

at 352; Amrhein, 903 A.2d at 19 (holding that the trial court abused its discretion in

considering income guidelines to access benefits provided by the Neighborhood Legal


4
       The public additionally has an interest in the adjudication of meritorious claims
brought by inmates, which impact prison management. See, e.g., William Bennett
Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal
Courts, 92 HARV. L. REV. 610, 633–35 (1979) (concluding that prisoner litigation led to
increased appropriations for corrections departments).



                                    [25 MAP 2017] - 9
Services Association in resolving a petition to proceed IFP, as this was in direct conflict

with the information required by Rule 240(h)). In other words, as the law stands today,

a petitioner’s poverty level may qualify her for public assistance, but, ironically, the

income from public assistance could disqualify her from IFP status.

       Other jurisdictions take different approaches, examination of which may present

alternatives for this Court to consider. In Maine, for example, there is “a presumption

that a moving party is without sufficient funds to pay required fees or costs if the moving

party’s affidavit states that the person’s income is derived from poverty-based public

assistance programs.” Me.R.C.P. 91(3).

       Other jurisdictions expressly require consideration of the federal poverty

guidelines, which are published annually by the United States Department of Health and

Human Services and used to determine financial eligibility for certain federal programs.

See, e.g., KY.REV.STAT.ANN. § 31.120; Potnick v. E. State Hosp., 701 F.2d 243 (2d Cir.

1983) (granting IFP status where the petitioner’s monthly income of public assistance

was below the poverty level). In Colorado, by Chief Justice Directive, an applicant

qualifies for the waiver of court costs if her income is at or below established income

eligibility guidelines (which are set at 125% of the federal poverty level), and has liquid

assets of less than $1,500. Chief Justice Directive No. 98-01, Office of the Chief Justice

(March 2017).

       Louisiana combines the inquiries into public assistance and poverty, and has

established a rebuttable presumption that a litigant qualifies for IFP status if the litigant

receives public assistance or the litigant’s income is less than or equal to 125% of the

federal poverty level. La.Code Civ.P. 5183(B). Moreover, financial help from friends or

family who have no duty to support the litigant does not count towards income. Hollier

v. Broussard, 220 So.2d 175, 177 (La. App. 1969).               Minnesota follows similar




                                    [25 MAP 2017] - 10
guidelines. See MINN. STAT. § 563.01 (permitting the court to waive fees if the litigant is

receiving public assistance, is represented by a legal services program, or if the

litigant’s family income is less than 125% of the federal poverty level).

       Rebuttable presumptions of IFP status could be extended to benefit prisoners as

well. Many prisoners, whose necessities are paid for by the state, certainly can be

considered presumptively destitute. Any concern that presuming prisoners to be IFP

would increase the volume of frivolous complaints filed by prisoners is ameliorated by

Rule 240(j), which permits courts, when possible, to deny a petition to proceed IFP by

examining whether the complaint itself is frivolous. Pa.R.C.P. 240(j). Presuming IFP

status for prisoners would ensure equal access to the courts for the most destitute of

our citizens, while, at the same time, employing Rule 240(j) fairly to weed out frivolous

actions would maintain judicial efficiency and protect defendants from having to respond

to frivolous complaints. Indeed, the Superior Court has already held that “[w]here . . .

petitioners allege that they have no income except public assistance benefits, and that

their net worth is minimal, it appears [p]rima facie that they are in [poverty].” Schoepple,

361 A.2d at 668 (emphasis added). Incarceration is akin to being on public assistance,

and is no less deserving of being a prima facie basis for granting IFP status.

       Another possibility is that IFP status should not be an all-or-nothing proposition.

Partial filing fees based upon a prisoner’s current economic situation could reflect the

individual circumstances presented by the petitioner. These are merely alternatives to

the way in which Rule 240 is applied to prisoners specifically and impoverished litigants

more generally. In the absence of rule-based guidance, I would encourage trial courts

to employ a liberal interpretation of Rule 240 that favors waiving the fees that act as

barriers to the courthouse for potentially non-frivolous actions by inmates. Although

Rule 240 requires the balancing of income and other assets against debts and




                                    [25 MAP 2017] - 11
expenses, I fear that the courts’ belief that all prisoners have all of their needs met by

the state eclipses the harsh reality of prison life. I would encourage trial courts to

conduct a complete analysis of inmate IFP petitions that considers the financial

obligations the prisoner has claimed therein.

       It is not difficult to imagine the choices prisoners must make in pursuing redress

in the courts. The costs of litigation may prove daunting, and may transform access to

the courts into a luxury few prisoners can afford. It is too simple to suggest that courts

have the tools and the discretion to open the courthouse doors to those who cannot

otherwise enter due to prohibitive costs.       Trial courts are passive fora, waiting for

petitions to proceed IFP to trigger the exercise of their discretion. This Court, however,

has the rule-making authority to establish reform, if reform is, as I believe, warranted. I

recommend that our Civil Procedural Rules Committee5 take the time to examine the

concerns that I have raised herein. Although Rule 240 is intended to provide waiver of

the incidental costs of litigation to those who lack the financial resources to pay them, I

fear that, at least as applied to prisoners, Rule 240 can prove illusory. Addressing this

problem will take us one step closer to the proverbial fair trial, irrespective of poverty,

promised since the Magna Carta.




5
       It may very well be that other committees, such as the Appellate Court
Procedural Rules Committee or the Criminal Procedural Rules Committee, should also
be involved in this examination.



                                   [25 MAP 2017] - 12
