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JOYCE M. SMITH v. MICHAEL E. SMITH (02/18/77)

decided: February 18, 1977.

JOYCE M. SMITH, APPELLANT,
v.
MICHAEL E. SMITH



Appeal from the Order of the Court of Common Pleas, Civil Division of Clearfield County, No. 75-1766-C.D. No. 833 April Term, 1976.

COUNSEL

Michael J. Bresnahan, State College, for appellant.

No appearance entered nor brief submitted for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Price, JJ., dissent.

Author: Hoffman

[ 245 Pa. Super. Page 480]

Appellant, whose sole source of income is a monthly Department of Public Assistance grant, contends that the lower court erred in denying appellant leave to proceed in a divorce action without payment of fees and costs. We agree, and, therefore, reverse the order of the lower court.

In 1975, appellant petitioned the Court of Common Pleas of Clearfield County to grant her leave to file for a divorce in forma pauperis. That petition recited the following facts: appellant, a resident of Olanta, Clearfield County, was married to Michael E. Smith on August 23, 1969, in Joplin, Missouri; when the petition was filed, Michael Smith was incarcerated in the Federal Correctional Institute in Tallahassee, Florida; and her only income amounted to $204, her monthly grant from Public Assistance. She has custody of the couple's only child. After a June 19, 1975 hearing on the petition, the lower court denied her petition and entered the following order: "NOW, this 2nd day of October, 1975, following hearing into the above captioned petition to Proceed in forma pauperis in Divorce and the Plaintiff having left her employment without proper proof of the necessity therefor, it is the ORDER of this Court that said Petition be and is hereby denied." Thereafter, the appellant petitioned this Court to allow her to file an appeal in forma pauperis. That petition was denied in a per curiam order entered on December 5, 1975. On April 26, 1976, the Supreme Court reversed that order and remanded to this Court "with instructions to allow petitioner to proceed in forma pauperis in connection with her appeal from the Order of the Court of Common Pleas of Clearfield County . . . ." That appeal is now before this Court.

[ 245 Pa. Super. Page 481]

Rule 1137, Pa.R.C.P., 42 P.S.Appendix, provides as follows:

"(a) Prior to the commencement of the action, or at any time during its pendency, upon petition of a party averring his inability to pay all or part of the costs of the action, the court, upon being satisfied of the truth of the averments of the petition, shall enter an order permitting him to proceed upon payment of only those costs which the court finds he is able to pay. Costs include masters' fees and stenographic charges. The petition must disclose his full financial condition including his income and property. No filing fee shall be required for the filing of the petition.

"(b) A petition by a plaintiff shall also include a statement of the financial condition of the defendant including income and property, to the extent known to the plaintiff. The petition shall not be denied or delayed because of defendant's financial ability to pay the costs. The entry of an order relieving the plaintiff from costs of the action, in whole or in part, shall not relieve the defendant from any liability for payment of the costs of the action.

"(c) If the plaintiff has been relieved of the payment of all or part of the costs the court by general Rule or special order may provide the procedure by which the defendant may be required to pay such costs. Such proceedings shall in no manner delay or interfere with the disposition of the plaintiff's action." The rule, added on October 5, 1971, implements the United States Supreme Court's holding in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), that a state may not deny a person seeking a divorce access to its courts because of the petitioner's inability to pay the costs of the proceedings. See also, Tomashefski v. Tomashefski, Pa. Super. , 369 A.2d 839 ...


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