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JANET P. NICHOLSON v. CLARENCE T. NICHOLSON (03/31/77)

decided: March 31, 1977.

JANET P. NICHOLSON, APPELLANT,
v.
CLARENCE T. NICHOLSON, SR.



Appeal from the Order of October 2, 1975, of the Court of Common Pleas of Clearfield County, Civil Division, at No. 75-1762 - C.D. No. 831 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. Hoffman and Spaeth, JJ., file dissenting opinions.

Author: Price

[ 247 Pa. Super. Page 174]

This is an appeal from an order of the court below finding that appellant was able to pay the costs of her divorce and therefore was not entitled to proceed in forma pauperis. We affirm.

Appellant's petition to proceed in forma pauperis was filed with the Court of Common Pleas of Clearfield County in 1975. Her petition set forth the following facts: she was wed to Clarence T. Nicholson on October 16, 1954, in Chestnut Grove, Clearfield County. Appellant has custody of her eight minor children, all living at home. Her only assets are items of personal property with an estimated worth of $250. Appellant's total monthly income was $550 (now $587), consisting of a $384 (now $410) Public Assistance grant and a supplemental grant of $166 (now $177) from the Social Security Administration for one of her children who is blind.

On June 19, 1975, the lower court held a hearing on appellant's petition and on October 2, 1975, it entered an order finding that appellant was not indigent and denying the requested relief. Appellant petitioned for leave to appeal to this court in forma pauperis, which petition was denied in a per curiam order on December 5, 1975. That order was vacated by the Supreme Court of Pennsylvania on April 26, 1976, with instructions to allow the petitioner to proceed in forma pauperis with her appeal to this court. That appeal is now before us.

Appellant's claim is based on Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), where the United States Supreme Court held that due process requires the states to make a procedure available whereby persons without the ability to pay are provided with access to the courts for the purpose of obtaining a divorce. This procedure

[ 247 Pa. Super. Page 175]

    was codified in Pennsylvania under Pa.R.C.P. No. 1137, 42 Pa.C.S., which provides:

"(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 ...


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