             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Herman Staple,                          :
                   Appellant            :
                                        :
            v.                          :       No. 804 C.D. 2019
                                        :       Submitted: December 20, 2019
Supt. Garmon, Keri Moore, Nicki Paul, :
Paul Blaylock, Lt. James, C.O. Barlett, :
and John Doe                            :

BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                      FILED: May 1, 2020

                Herman Staple, an inmate representing himself, appeals an order of the
Court of Common Pleas of Centre County (trial court) that dismissed his civil
complaint against prison employees after Staple failed to pay the required filing fee.
On appeal, Staple contends that the trial court erred in revoking his in forma pauperis
status under the Prison Litigation Reform Act (Act)1 by reason of his history of
frivolous litigation.      Staple argues that the trial court erred in dismissing his
complaint. For the following reasons, we affirm.
                On October 16, 2018, Staple initiated a civil action against several
employees of the Department of Corrections (Department Employees) who work at
the State Correctional Institution at Rockview, where he is an inmate. His complaint
alleged that Department Employees took personal property and money from him in
violation of the Fifth Amendment of the United States Constitution and Article I,


1
    42 Pa. C.S. §§6601-6608.
Sections 8 and 9 of the Pennsylvania Constitution.2 The complaint also alleged
conversion, fraudulent representation and negligence, and requested a writ of
replevin. On October 29, 2018, the trial court granted Staple in forma pauperis
status.
               On January 10, 2019, Department Employees filed a motion to revoke
Staple’s in forma pauperis status pursuant to Section 6602(f) of the Act, 42 Pa. C.S.
§6602(f).3 Section 6602(f) is commonly referred to as the “three strikes rule” and


2
  The Fifth Amendment provides, in relevant part:
        No person shall … be deprived of life, liberty, or property, without due process of
        law; nor shall private property be taken for public use, without just compensation.
U.S. CONST. amend V. Article I, Section 8 of the Pennsylvania Constitution reads:
        The people shall be secure in their persons, houses, papers and possessions from
        unreasonable searches and seizures, and no warrant to search any place or to seize
        any person or things shall issue without describing them as nearly as may be, nor
        without probable cause, supported by oath or affirmation subscribed to by the
        affiant.
PA. CONST. art. I, §8. Article I, Section 9 provides, in part:
        In all criminal prosecutions the accused … cannot be … deprived of his life, liberty
        or property, unless by the judgment of his peers or the law of the land.
PA. CONST. art. I, §9.
3
  Section 6602(f) provides:
        (f) Abusive litigation.--If the prisoner has previously filed prison conditions
        litigation and:
                 (1) three or more of these prior civil actions have been dismissed
                 pursuant to subsection (e)(2); or
                 (2) the prisoner has previously filed prison conditions litigation
                 against a person named as a defendant in the instant action or a
                 person serving in the same official capacity as a named defendant
                 and a court made a finding that the prior action was filed in bad faith
                 or that the prisoner knowingly presented false evidence or testimony
                 at a hearing or trial;

               the court may dismiss the action. The court shall not, however,
               dismiss a request for preliminary injunctive relief or a temporary
                                                 2
allows a court to revoke a prisoner’s in forma pauperis status if he has filed three or
more civil actions involving prison conditions which were dismissed as frivolous or
malicious or for failure to state a claim. Brown v. Pennsylvania Department of
Corrections, 58 A.3d 118, 121 (Pa. Cmwlth. 2012).                     The trial court granted
Department Employees’ motion on February 27, 2019, explaining that:

               [Staple] has filed three or more prior civil actions that have been
               dismissed as frivolous or malicious or for failure to state a claim.
               42 Pa. C.S. [§]6602(e)-(f). [Staple’s in forma pauperis] status is
               therefore revoked due to his past abusive litigation. [Staple’s]
               Civil Complaint shall be dismissed unless [Staple] pays the entire
               applicable filing fee within thirty (30) days of today’s date.

Original Record (O.R.) Item No. 17.
               On April 8, 2019, Staple requested that the trial court modify its
February 27, 2019, order. Staple asserted that it was impossible for him to pay the
entire filing fee in 30 days given the average monthly balance of his inmate account.
Staple asked the trial court to accept a check for partial payment and allow him to
make monthly payments towards the balance. On May 16, 2019, the trial court
denied this request and dismissed Staple’s complaint because he had failed to pay
the entire filing fee. Staple then appealed to this Court.
               In its Rule 1925(a) opinion, the trial court addressed Staple’s arguments
that it erred by: (1) revoking Staple’s in forma pauperis status because it was aware
of his inability to pay the filing fee; (2) refusing to accept his partial payment; and
(3) dismissing his complaint for financial reasons, which denied him access to the
courts. The trial court rejected these arguments, explaining that Staple’s in forma


               restraining order which makes a credible allegation that the prisoner
               is in imminent danger of serious bodily injury.
42 Pa. C.S. §6602(f).
                                                3
pauperis status was revoked because three of his prior prison conditions litigation
actions were dismissed as frivolous or malicious or for failure to state a claim. The
trial court noted that it had given Staple reasonable time to pay the filing fee and
proceed with his complaint, but he failed to do so. Given the “three strikes rule” and
Staple’s failure to pay, the trial court explained that it did not abuse its discretion by
revoking Staple’s in forma pauperis status under Section 6602(f) of the Act, 42 Pa.
C.S. §6602(f), and dismissing his complaint for failure to pay the filing fee.
               On appeal,4 Staple argues that the trial court erred by imposing a 30-
day deadline for him to pay the entire filing fee. More specifically, he contends that
the 30-day deadline was unreasonable because the trial court revoked his in forma
pauperis status with knowledge of his inability to pay the filing fee. Further, Staple
argues that he should have been permitted to make partial payments pursuant to
Section 6602(b) and (c) of the Act, 42 Pa. C.S. §6602(b), (c).
               Before we address the merits of these arguments, we first consider
whether his appeal was timely filed.5 Our appellate rules provide that “[a]n appeal
permitted by law as of right from a lower court to an appellate court shall be taken
by filing a notice of appeal with the clerk of the lower court” within “30 days after
the entry of the order from which the appeal is taken.”                   PA. R.A.P. 902, 903.
Pennsylvania Rule of Appellate Procedure 905(a)(3) assists the court in determining
the date an appeal is filed. It provides that “[u]pon receipt of the notice of appeal,
the clerk shall immediately stamp it with the date of receipt, and that date shall



4
 In reviewing the trial court’s decision, we must determine whether constitutional rights have been
violated, the trial court abused its discretion, or the trial court committed an error of law. Bailey
v. Wakefield, 933 A.2d 1081, 1083 n.4 (Pa. Cmwlth. 2007).
5
  On September 16, 2019, this Court directed the parties to address the timeliness of Staple’s appeal
in their briefs.
                                                 4
constitute the date when the appeal was taken, which date shall be shown on the
docket.” PA. R.A.P. 905(a)(3).
               However, recognizing the special circumstances of a pro se appellant
who is incarcerated at the time of his appeal, our state Supreme Court has adopted
the “prisoner mailbox rule” to determine when a prisoner’s appeal is filed.
Commonwealth v. Jones, 700 A.2d 423, 425 (Pa. 1997).6 “At the heart of the
‘prisoner mailbox rule’ are the constitutional notions of due process and fundamental
fairness.” Pettibone v. Pennsylvania Board of Probation and Parole, 782 A.2d 605,
608 (Pa. Cmwlth. 2001). Thus, under the prisoner mailbox rule, a prisoner’s pro se
appeal is deemed filed at the time it is given to prison officials or put in the prison
mailbox. Jones, 700 A.2d at 425. The pro se prisoner has the burden of showing
that he or she, in fact, delivered the appeal within the appropriate time period. Id. at
426. In support, the pro se prisoner may present evidence like a certificate of


6
 The United State Supreme Court has explained the concepts behind the rule:
      The situation of prisoners seeking to appeal without the aid of counsel is unique.
      Such prisoners cannot take the steps other litigants can take to monitor the
      processing of their notices of appeal and to ensure that the court clerk receives and
      stamps their notices of appeal before the 30-day deadline. Unlike other litigants,
      pro se prisoners cannot personally travel to the courthouse to see that the notice is
      stamped “filed” or to establish the date on which the court received the notice.
      Other litigants may choose to entrust their appeals to the vagaries of the mail and
      the clerk’s process for stamping incoming papers, but only the pro se prisoner is
      forced to do so by his situation. And if other litigants do choose to use the mail,
      they can at least place the notice directly into the hands of the United States Postal
      Service (or a private carrier); and they can follow its progress by calling the court
      to determine whether the notice has been received and stamped, knowing that if the
      mail goes awry they can personally deliver notice at the last moment or that their
      monitoring will provide them with evidence to demonstrate either excusable
      neglect or that the notice was not stamped on the date the court received it. Pro se
      prisoners cannot take any of these precautions; nor, by definition, do they have
      lawyers who can take these precautions for them.
Houston v. Lack, 487 U.S. 266, 270-71 (1988).
                                                 5
mailing, an affidavit or a cash slip evincing the deduction from an inmate’s account
for the mailing. Id. However, “[p]roof is not limited to the above examples and [the
Court is] inclined to accept any reasonably verifiable evidence of the date that the
prisoner deposits the appeal with the prison authorities.” Id.
               Here, the trial court filed its order dismissing Staple’s complaint on
May 16, 2019. To be considered timely, Staple had to file his notice of appeal on or
before June 17, 2019. It was docketed on June 21, 2019. Staple asserts that he
placed the notice of appeal with the certificate of service, both dated June 16, 2019,
in the prison mailbox on June 17, 2019. Although the record contains the envelope
in which Staple’s notice of appeal was mailed, the envelope is not postmarked.
When there are factual disputes regarding timeliness, this Court may remand for an
evidentiary hearing. Jones, 700 A.2d at 426 n.3. “Where, however, the opposing
party does not challenge the timeliness of the appeal and the prisoner’s assertion of
timeliness is plausible, [the Court] may find the appeal timely without remand.”
Commonwealth v. Cooper, 710 A.2d 76, 79 (Pa. Super. 1998) (citing Jones, 700
A.2d at 426 n.3).7 Department Employees “concede that the appeal is likely timely



7
  This Court applied this reasoning in Polite v. Philadelphia District Attorney’s Office (Pa.
Cmwlth., No. 548 C.D. 2019, filed September 23, 2019) (unreported), where an inmate requested
documents under the Right-to-Know Law, Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-
67.3104. The trial court there disposed of his appeal on November 28, 2018, but the inmate’s
appeal of the trial court order was not filed until January 11, 2019. Although the inmate’s appeal
was filed well beyond the 30-day period, we applied the prisoner mailbox rule.
        The inmate’s notice of appeal and certificate of service were dated December 16, 2018.
We stated that “assuming some delay occurred … with respect to the mail, whether it be within
the prison system or postal delivery in general, it is factually plausible that [the inmate] delivered
the notice of appeal to prison officials or placed it in the prison mailbox on or shortly after this
date and, therefore, filed a timely notice of appeal.” Polite, slip op. at 2 n.2. Because the District
Attorney had not challenged the timeliness of the inmate’s appeal, we considered the merits of his
appeal.
                                                  6
due to the prison mailbox rule.” Department Employees Brief at 5. Under these
circumstances, we will assume that Staple’s appeal was timely filed.
                 Turning to the merits, we first address whether the trial court’s
imposition of a 30-day deadline to pay the filing fee was unreasonable given that the
court revoked Staple’s in forma pauperis status. When a prisoner’s in forma
pauperis status is revoked, a court may dismiss the prisoner’s complaint if the
prisoner thereafter fails to pay the filing fees and costs associated with the litigation.
Richardson v. Department of Corrections, 97 A.3d 430, 432 (Pa. Cmwlth. 2014);
see also Lopez v. Haywood, 41 A.3d 184, 188 (Pa. Cmwlth. 2012) (trial court should
give prisoners a reasonable opportunity to proceed with already-begun prison
conditions litigation by paying filing fees and costs before dismissing the matter in
its entirety).
                 When the trial court revoked Staple’s in forma pauperis status on
February 27, 2019, it gave him 30 days to pay the filing fee. Staple contends that
the 30-day deadline was unreasonable. Significantly, however, the trial court did
not dismiss Staple’s complaint until 79 days later on May 16, 2019. Staple does not
acknowledge the extra time he was allowed or explain why he could not pay the fee
in 79 days. We reject Staple’s argument that the trial court abused its discretion in
getting a 30-day deadline for paying the filing fee.
                 Next, we address Staple’s argument that the trial court erred by not
allowing him to make partial payments. In making this argument, Staple relies on
Section 6602(b) and (c) of the Act, which reads, in part:

                 (b) Partial filing fees.--

                       (1) The court may grant in forma pauperis status to
                       excuse the prisoner from paying the full filing fee
                       prior to the initiation of the action or appeal. Where

                                              7
                          in forma pauperis status is granted, the court shall
                          order the prisoner to pay the full amount of the filing
                          fee and shall assess and, when funds exist, collect a
                          full or partial payment of the filing fee which shall
                          be the greater of the following:

                                 (i) The average monthly deposits to
                                 the prisoner’s account.

                                 (ii) The average highest monthly
                                 balance in the prisoner’s account for
                                 the six-month period immediately
                                 preceding the filing of the complaint or
                                 notice of appeal requiring the payment
                                 of a fee.

                                              ***

                  (c) Payment of filing fees.--Following payment of an initial
                  partial filing fee, the prisoner shall make monthly payments of
                  20% of the preceding month’s income credited to the prisoner’s
                  account. The prison having custody of the prisoner shall deduct
                  payments from the prisoner’s account when the prisoner’s
                  account balance exceeds $10 until the filing fees are paid in full.

42 Pa. C.S. §6602(b) and (c).
                  In Payne v. Department of Corrections, 871 A.2d 795 (Pa. 2005), our
Supreme Court held that the above-quoted subsections are unconstitutional. In
Payne, prisoners challenged Section 6602(a) through (c) of the Judicial Code as
violative of the Supreme Court’s exclusive rulemaking authority under Article V,
Section 10(c) of the Pennsylvania Constitution.8 More specifically, the prisoners

8
    Article V, Section 10(c) provides, in relevant part:
          (c) The Supreme Court shall have the power to prescribe general rules governing
          practice, procedure and the conduct of all courts, … if such rules are consistent with
          this Constitution and neither abridge, enlarge nor modify the substantive rights of
          any litigant, nor affect the right of the General Assembly to determine the
          jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of
                                                    8
argued that the subsections contradicted Rule 240(f) of the Pennsylvania Rules of
Civil Procedure, which 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 or prothonotary or any public officer or
                    employee, or

                    (2) post bond or other security for costs as a
                    condition for commencing an action or taking an
                    appeal.

PA. R.C.P. No. 240(f). The Pennsylvania Supreme Court explained that Section
6602 created a procedure whereby a prisoner with in forma pauperis status could be
required to pay partial court costs. The Court concluded that

             [s]uch edict directly conflicts with Rule 240[(f)], which provides
             that a party who has been granted in forma pauperis status shall
             not be required to pay any costs imposed by statute or local rule.
             PA. R.C.P. [No.] 240[(f)] (emphasis added). The practical effect
             of Section 6602 is to invalidate a judicial determination that an
             individual may proceed with the litigation without paying the
             costs incident thereto.       The conflict between procedural
             pronouncements of this Court and the Legislature in this regard
             is unmistakable.

Payne, 871 A.2d at 807.

             In light of the Supreme Court’s holding in Payne, the trial court could
not have fashioned a partial payment scheme as contemplated by Staple. In any


      limitation or repose. All laws shall be suspended to the extent that they are
      inconsistent with rules prescribed under these provisions.
PA. CONST. art. V, §10(c).
                                            9
event, subsections (b) and (c) would have required that Staple have in forma
pauperis status to avail himself of their provisions.       Staple would have been
ineligible because his in forma pauperis status was revoked under the three strikes
rule of Section 6602(f) of the Act.
             For all of the foregoing reasons, we affirm the trial court’s dismissal of
Staple’s complaint.
                                      _____________________________________
                                      MARY HANNAH LEAVITT, President Judge




                                          10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Herman Staple,                          :
                   Appellant            :
                                        :
            v.                          :   No. 804 C.D. 2019
                                        :
Supt. Garmon, Keri Moore, Nicki Paul, :
Paul Blaylock, Lt. James, C.O. Barlett, :
and John Doe                            :


                                   ORDER

            AND NOW, this 1st day of May, 2020, the order of the Court of
Common Pleas of Centre County dated May 16, 2019, in the above-captioned matter
is AFFIRMED.
                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
