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decided: March 31, 1983.


No. 81-3-442, On Appeal from the Order of the Commonwealth Court No. 1516 CD 1981, dated June 25, 1981


Joseph F. Boyle, I.P.P., Nanticoke, for appellant.

Walter F. Froh, Sp. Deputy Atty. Gen., Harrisburg, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., filed a concurring opinion in which Roberts, C.j., joins. Nix, J., filed a dissenting opinion in which McDermott, J., joins. McDermott, J., filed a dissenting opinion. Hutchinson, J., filed a dissenting opinion.

Author: Larsen

[ 500 Pa. Page 496]


In this appeal we are confronted with the question of whether a court has the power and authority to dismiss a complaint, sua sponte, before the complaint is served on the named defendant and without affording the plaintiff an opportunity to be heard.

On June 24, 1981, the appellant, Joseph F. Boyle, filed, pro se, an action in equity against Helen B. O'Bannon, Secretary, Department of Public Welfare, Commonwealth of Pennsylvania. In his complaint appellant alleges that the defendant wilfully infringed upon his legally protected rights by malicious conduct which invades his privacy, subjects him to continual harrassment, physical molestation, and psychological abuse, and tends to heap public ridicule upon him.*fn1

[ 500 Pa. Page 497]

On June 25, 1981, one day after the appellant filed his complaint, and before the complaint was served on the defendant, the Commonwealth court, without further comment, entered the following per curiam order:*fn2

"Now, June 25, 1981, the above proceeding is hereby dismissed as frivolous. The chief clerk is directed to return to plaintiff the filing fee in this matter and the check tendered by plaintiff for service of the complaint."

We find it is highly irregular and improper for a court to intercept a lawsuit between the prothonotary's office and the sheriff's desk and summarily dismiss the action; that the Commonwealth court erred in dismissing appellant's complaint and denying him an opportunity to be heard; and therefore we reverse.

Article I, Sec. 11 of the Pennsylvania Constitution provides as follows:

"All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by one course of law, and right and justice administered without sale, denial or delay . . ."

When the appellant properly commenced his action and paid the required filing fee he activated the judicial machinery of the Commonwealth. The initiation of a lawsuit

[ 500 Pa. Page 498]

    contemplates an orderly process leading to a just consideration and ultimate resolution of a claim. To that end effacaious rules of procedure*fn3 govern the legal journey from filing to final order or judgment. There are no special rules that apply to lawsuits which, upon private examination, a judge or panel of judges may regard as frivolous. Our system of justice does not include a judicial minister of undesirable lawsuits whose function it is to review all suits as they are filed, and whose powers include arbitrary and summary dismissal of those filings deemed to be frivolous, or otherwise without merit.

Whether the appellant's averments are sufficient to allege a cause of action is not the question; and, if a cause of action is stated, the appellant's ability to prove his allegations by competent evidence likewise is not the point. The fundamental issue is the appellant's right to due process of law.*fn4 "For more than a century the central meaning of procedural due process has been clear: 'parties whose rights are to be affected are entitled to be heard . . . .' Baldwin v. Hale, 1 Wall 223, 233, 17 L.Ed. 531." Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556(1972). The precipitate abortion of appellant's embryonic lawsuit before service of process, without appearance by the defendant, and without proper motion and hearing is repugnant to traditional notions of justice and fair play, and conflicts with the due process requirements of the United States Constitution and The Pennsylvania Constitution.*fn5

There is no rule of civil procedure which authorizes a court to arbitrarily deny a litigant service of process of a complaint lawfully filed. If a court could decide summarily

[ 500 Pa. Page 499]

    which lawsuits are worthy of service and which are not, we would be on the threshold of judicial tyranny. The law cannot sanction a court ignoring procedural rules and arbitrarily dismissing a plaintiff's complaint absent service of process and an opportunity for the plaintiff to be heard. To do so is to take a step toward sanctioning the entry of judgment in favor of a plaintiff without giving the defendant an opportunity for hearing. Despotic governmental action of this sort cannot be countenanced in a democracy.

The appellant's lawsuit may be entirely frivolous and lacking in merit; and his complaint may fail dismally to aver a cause of action upon which relief can be granted. In addition, it may be that he cannot amend his complaint to state an actionable claim. These, however, are questions that must be decided after and not before the litigants have had an opportunity to be heard.

Essentially, the appellee's argument, distilled to its essence, is that any reasonable person can readily see that the plaintiff's complaint contains nothing but outrageous, fanciful averments, incapable of proof and beyond belief. Therefore, it is more convenient for the court to step in at the outset and do then what everyone knows it would do after service and after hearing from the parties. Further, appellee argues that the court is already overburdened with "legitimate" litigation and the summary action taken here serves both the interests of justice and judicial economy.

We are well aware of the busy caseloads faced by the courts and we can appreciate an interest in minimizing frivolous lawsuits. Nonetheless, we cannot allow any action which permits denial of access to the courts in the name of judicial economy. Due process cannot be abolished to achieve judicial efficiency and convenience. See Davis v. Porch, 268 Pa. 376, 112 A. 32(1920); Allegheny County v. Milk Control Board, 417 Pa. 22, 207 ...

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