        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                             :
                                            :
            Appellant                       :
                                            :
            v.                              : No. 1752 C.D. 2014
                                            : Submitted: July 17, 2015
Conner Blaine, Jr., Lt. R. Oddo,            :
T.D. Jackson, Lieutenant McCombic,          :
Charles Rossi, Sergeant Lipscomb,           :
Officer Marshall, Officer Romano,           :
Kerri Cross, Frank J. Zaborowski and        :
B.E. Ansell                                 :



BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                 FILED: November 17, 2015


            Alton D. Brown (Appellant or Brown) appeals pro se from an Order
of the Court of Common Pleas of Greene County (Trial Court) ordering him to pay
a total of $214.50 for court fees associated with a civil rights action he filed in
2002.   (Certified Record (R.) Item No. 12, Trial Court’s Order, 9/15/14.)
Appellant is incarcerated in the Pennsylvania prison system, and in 2002, he filed
an action against various guards, officers and employees (collectively, Appellees
or Defendants) of the Pennsylvania Department of Corrections (DOC).             In
conjunction with his complaint, Brown filed a petition to proceed in forma
pauperis (IFP), which was granted on April 12, 2002.
                This case has a long procedural history, but relevant to this appeal,
on September 20, 2011, Defendants filed a Motion to Remove IFP and Dismiss the
Case (R. Item 41) and on November 3, 2011, the Trial Court granted the motion,
found Brown to be an abusive litigator,1 and dismissed his case under
Pennsylvania’s Prisoner Litigation Reform Act (PLRA), 42 Pa. C.S. §§ 6601-6608.
(R. Item No. 35, Trial Court’s Memorandum and Order.) Brown appealed to this


1
  Section 6602(f) of the PLRA, 42 Pa. C.S. § 6602(f), commonly referred to as the “three strikes
rule,” allows the trial court to dismiss a prisoner’s in forma pauperis complaint where the
prisoner has a history of filing frivolous litigation. Jae v. Good, 946 A.2d 802, 807 (Pa.
Cmwlth.), appeal denied, 959 A.2d 930 (Pa. 2008). In his lawsuit, Brown made no allegation
of imminent danger, thus Brown cannot prevent the dismissal of his prison conditions litigation
by using the exception provided in Section 6602(f)(2) of the Pennsylvania Prisoner Litigation
Reform Act, 42 Pa. C.S. § 6602(f)(2).
In Brown v. Pennsylvania Department of Corrections, 58 A.3d 118 (Pa. Cmwlth 2012), this
Court aptly summarized Brown’s prolific history of filing frivolous and abusive pro se lawsuits
concerning the conditions of his confinement, quoting this Court’s decision in Brown v.
Pennsylvania Department of Corrections (Brown I), (Pa. Cmwlth., No. 93 M.D. 2011, filed
March 29, 2012), slip op. at 12 n.7:
                Our research has shown that Brown has filed well over twenty pro
               se matters in which he challenges the conditions in which he is
               housed and/or the medical treatment he has received for various
               alleged ailments. The matters have been filed in various Courts of
               Common Pleas, this Court, and in the Federal Courts throughout
               the country. With few exceptions, these matters have been
               dismissed as being frivolous, without merit, or for not
               demonstrating that Brown was in imminent danger of serious
               bodily injury.

58 A.3d at 121 (citations omitted).




                                               2
Court, and in an unpublished memorandum opinion, Brown v. Blaine, (Pa.
Cmwlth., No. 863 C.D. 2012, filed April 18, 2013), 2013 WL 3973380, we upheld
the Trial Court’s determination to revoke Brown’s IFP status, but vacated that
portion of the Trial Court’s order that dismissed Brown’s complaint and remanded,
pursuant to Lopez v. Haywood, 41 A.3d 184, 188-89 (Pa. Cmwlth. 2012), for a
determination of the amount of court fees Brown was required to pay in order to be
able to proceed with the action.
               By its September 15, 2014 Order, the Trial Court noted that the fee
schedule provided by the prothonotary had changed in the past year, and found that
under the current fee schedule, Brown was required to pay “$96.00 for a
complaint, $83.50 for the Superior Court Fee, and $35.00 for the Lower Court
Appeal Fee, for a total of $214.50 in order to proceed with the remand of this
case.” (R. Item 12, Trial Court’s Order.)2 Brown thereafter appealed the Trial
Court’s September 15, 2014 Order to this Court.3
               In his brief, Appellant initially argued that under Sections 6602(a)-(c)
of the PLRA, he was granted permission to prosecute his case without paying the
initial filing fee, and that these sections cannot be construed to require him to pay
any other litigation fees or costs in addition to the initial fee for filing the
complaint. Thus, Appellant argued, the additional court fees that the Trial Court
on remand determined to be retroactively due following the revocation of his IFP
status were unlawful.         However, after Appellees filed a brief identifying our

2
  We note that in its order, the Trial Court erroneously referred to the ‘Opinion of the
Pennsylvania Superior Court’ and ‘remand from the Superior Court’, instead of to the
Commonwealth Court’s opinion and the Commonwealth Court’s remand.
3
  Our review of the trial court’s decision is limited to a determination of whether constitutional
rights were violated, or whether the trial court abused its discretion or committed an error of law.
Brown v. Beard, 11 A.3d 578, 580 n.5 (Pa. Cmwlth. 2010).

                                                 3
Supreme Court’s decision in Payne v. Commonwealth Department of Corrections,
871 A.2d 795, 805-07 (Pa. 2005), in which the Court declared Sections 6602(a)-(c)
of the PLRA to be unconstitutional, as violative of its exclusive rulemaking
authority, Appellant requested and received permission to file a reply brief.4
                In his reply brief, Appellant abandons his argument that he is
responsible solely for payment of the initial filing fee. However, he contends that
he cannot pay what he does not have, and invokes Pa. R.C.P No. 240(f)(1)5 as
authority for his position that he is only required to pay costs or fees that may have
accrued while he was proceeding IFP at such time as he is able to do so and that
only the payment of fees due post-revocation of his IFP status and moving forward
should be required in order to proceed.6
               We can find little sense in Appellant’s argument. Rule 240 of the
Pennsylvania Rules of Civil Procedure quite clearly addresses the entitlement of a
party who is without financial resources to proceed IFP and the manner in which a
party must request such status.           Rule 240(f)(1) exempts a party permitted to
proceed IFP from payment of any cost or fee imposed. Here, however, Appellant’s
IFP status was revoked under Section 6602(f)(1) of the PLRA, and as this Court


4
  On August 26, 2015, this Court granted Appellant’s Application for Special Relief to give him
the opportunity to file a reply brief, and Appellant’s Reply Brief was filed on September 24,
2015.
5
  Pa. R.C.P. No. 240 establishes that a party who is without financial resources to pay the costs
of litigation is entitled to proceed IFP. Rule 240(f)(1) states: “A party permitted to proceed in
forma pauperis shall not be required to (1) pay any cost or fee imposed or authorized by Act of
Assembly or general rule which is payable to any court of prothonotary or any public officer or
employee…”
6
  Appellant also attempts to renew his argument that this Court was in error when we affirmed
the Trial Court’s revocation of his IFP status; however, we address only those issues before us on
the instant appeal.

                                                4
determined in Lopez v. Haywood, 41 A.3d 184, 188-89 (Pa. Cmwlth. 2012), where
a prisoner’s IFP status has been revoked under Section 6602(f) of the PLRA, he or
she must be provided the opportunity to pay the required filing fees and litigation
costs prior to the dismissal of the complaint. In Lopez, we remanded to the trial
court “to order the [p]rothonotary… to compile a list of the filing fees and costs
associated with this matter that Lopez would have had to pay had he not been
granted IFP status…” 41 A.3d at 188-190. In another of Brown’s cases, Brown v.
Pennsylvania Department of Corrections, 58 A.3d 118 (Pa. Cmwlth. 2012), we
acknowledged that in light of our decision in Lopez, it was necessary to address the
trial court’s order dismissing his pro se complaint without first affording him the
opportunity to pay his filings fees and litigation costs. In that case, we therefore
vacated the order dismissing the complaint and remanded with instructions to the
trial court for a compilation of “a list of the filing fees and costs associated with
this matter that Brown would have been required to pay had he not be granted
[IFP] status…” 58 A.3d at 125. In Lopez we recognized that to preclude an action
from being dismissed, an abusive litigator should be required to pay certain other
filings fees and costs “that would be associated with commencement of the legal
action had the prisoner not been granted IFP status,” such as the costs of sheriff’s
service. 41 A.3d at 189.
              Appellees contend that Appellant must be required to pay all fees set
forth in the Trial Court’s order, and stand in the shoes of an ordinary civil litigant
who had not been granted IFP status, and we agree; however, we must note that
Appellees have mischaracterized the nature of a portion of these filing fees.
Before this Court, Appellees state that by its order, the Trial Court has required
Brown to pay, inter alia, a filing fee pertaining to his appeal to this Court from the


                                          5
revocation of his IFP status. However, a reading of the voluminous certified
record makes it apparent that the Trial Judge was imposing filing fees, in addition
to the filing fee for the original complaint, for Brown’s lower court appeal and for
Brown’s subsequent appeal to the Superior Court (transferred sua sponte to this
Court on February 20, 2003). (R. Item No. 140, Opinion and Order; R. Item No.
137, Notice of Appeal to the Superior Court; R. Item 133.) Accordingly, we reject
Appellees’ contention that the implication of our decisions in Lopez and Brown v.
Department of Corrections is that all court costs incurred, including fees and costs
associated with Brown’s appeal of his IFP status revocation, are required to be
paid. In order to proceed, Appellant is responsible for payment of court fees and
costs up to the time his IFP status was revoked, as well as any fees and costs going
forward in his prison conditions litigation.
               Appellant also argues that any fees due in order to proceed should
not be calculated in accordance with current fee schedules, but rather in accordance
with the prevailing rate in effect at the time he was granted IFP status, in 2002.
Appellees contend that Appellant should be required to pay all fees assessed
according to current fee schedules, and that Appellant otherwise would enjoy a
benefit in the form of reduced costs by evading the consequences of being an
“abusive litigator” for so long. We do not agree that a litigant should be required
to pay today’s rates, particularly here, where Defendants waited until the eve of
trial, nine years after the complaint was filed, to file its Motion to Remove IFP.
We find therefore that the appropriate filing fees and any court costs are those fees
and costs in effect at the time the relevant complaint and subsequent appeals were
filed. Accordingly, we remand with an instruction to issue a new order reflecting
the Trial Court’s determination of the appropriate fees and costs. If Brown


                                          6
thereafter fails to pay the fees and costs, the Trial Court shall enter an order
dismissing Brown’s complaint with prejudice.




                                    ____________________________________
                                    JAMES GARDNER COLINS, Senior Judge




                                       7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                                :
                                               :
             Appellant                         :
                                               :
             v.                                : No. 1752 C.D. 2014
                                               :
Conner Blaine, Jr., Lt. R. Oddo,               :
T.D. Jackson, Lieutenant McCombic,             :
Charles Rossi, Sergeant Lipscomb,              :
Officer Marshall, Officer Romano,              :
Kerri Cross, Frank J. Zaborowski and           :
B.E. Ansell                                    :



                                     ORDER


             AND NOW, this 17th day of November, 2015, the September 15, 2014
order of the Court of Common Pleas of Greene County setting forth the required
court fees to be paid by Plaintiff Alton D. Brown in order to proceed with his case
is vacated. We remand this matter to the trial court, with instructions to issue a
new order setting forth the appropriate court fees and costs that Brown will be
required to pay, consistent with the accompanying memorandum opinion.               If
Brown thereafter fails to pay the fees and costs, the trial court shall enter an order
dismissing Brown’s complaint with prejudice.
             Jurisdiction relinquished.


                                          ____________________________________
                                          JAMES GARDNER COLINS, Senior Judge
