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GERLITZKI v. FELDSER ET UX. (06/14/73)

decided: June 14, 1973.

GERLITZKI
v.
FELDSER ET UX., APPELLANTS



Appeal from order of Court of Common Pleas of Lancaster County, Dec. T., 1971, No. 78, in case of Joseph Gerlitzki, Jr. and Gloria Gerlitzki, husband and wife v. Sidney B. Feldser and Betty Feldser, husband and wife.

COUNSEL

H. Joseph Flynn, for appellants.

No oral argument was made nor brief submitted for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J. Dissenting Opinion by Jacobs, J. Wright, P. J., and Watkins, J., join in this dissenting opinion.

Author: Spaeth

[ 226 Pa. Super. Page 143]

Appellants seek a reversal of the lower court's decision denying their petition to appeal in forma pauperis.

Appellees brought suit for back rent against appellants, who then counterclaimed for their expenses for repairs to the rented property. The case went to arbitration, and the arbitrators awarded $455 to appellees

[ 226 Pa. Super. Page 144]

    and $174.80 to appellants on the counterclaim. Appellants then petitioned to be allowed to appeal in forma pauperis, alleging their total income was $430 a month in public assistance. They showed assets of $3,040 including a station wagon, a truck, and a television set and debts amounting to $2,643, leaving a net worth of $397. The lower court denied their petition without a hearing.

The Act of June 16, 1836, P. L. 715, § 28, 5 P.S. § 72, provides that "it shall be lawful" to grant a petition for leave to appeal in forma pauperis if upon affidavit it appears that petitioners "by reason of poverty [are] unable to pay the costs of the suit." The only issue is whether petitioners are not "unable to pay the costs" because they "regularly" make installment payments on "a station wagon, a truck, and a television set".

As a matter of fact: If petitioners refuse to make the installment payments, the station wagon, truck, and television set will be repossessed. That will not make petitioners any more able to pay the costs. Presumably the installment payments are required by legally enforceable sales agreements. Petitioners cannot escape the agreements simply by submitting to repossession. Even if they could, it does not follow that they would then be able to pay the costs, since their only income, so far as appears from the petition, is public assistance benefits of $430 a month.

As a matter of law: The question put by the Act of June 16, 1836, supra, is not whether petitioners are unable to pay the costs but whether they are in poverty. If they are in poverty, it follows that they are unable to pay the costs, and their petition should be granted. The Act, moreover, is to be read not with an accountant's but a housewife's eyes. "Poverty" does not refer solely to a ...


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