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TRAVIS BANKS v. JOSEPH M. RYAN (04/05/89)

decided: April 5, 1989.

TRAVIS BANKS, APPELLANT
v.
JOSEPH M. RYAN, JOHN KERESTES, LIEUTENANT MARTIN, LIEUTENANT JONES, JOHN FRANTZ, MR. BUBB, JOHN R. STEPANIK, DAVID LARKINS, PAUL CRISLER, J. KEVIN KANE, AND EDWARD KLEM, APPELLEES



Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Travis Banks v. Joseph M. Ryan, et al., No. 27-E/1988.

COUNSEL

Travis Banks, appellant, for himself.

Mary B. Seiverling, Deputy Attorney General, with her, John G. Knorr, III, Chief Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for appellees.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge Barry concurs in the result only. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 124 Pa. Commw. Page 604]

Appellant, Travis Banks, appeals from an order of the Luzerne County Court of Common Pleas which denied Appellant's request for a preliminary injunction, his application for leave to file in forma pauperis a complaint in equity against Appellees, and his request for appointment of counsel.*fn1 On March 13, 1988, Appellant, an

[ 124 Pa. Commw. Page 605]

    inmate at the State Correctional Institution at Dallas, mailed among other documents a pro se complaint, a petition to proceed in forma pauperis, a demand for a jury trial, a motion for preliminary injunction, and a request for the appointment of counsel to the Prothonotary of the Luzerne County Court of Common Pleas. In his complaint, Appellant sought punitive and compensatory damages, preliminary and permanent injunctive relief, and an arbitration hearing arising out of the issuance of a misconduct report against Appellant.

Appellant alleged in his complaint that on December 6, 1985, a "shank" or homemade knife was found in his cell by prison authorities and that as a result, Appellant was charged with possession of contraband and failure to report the presence of contraband and placed in solitary confinement. In a disciplinary hearing, Appellant was found guilty of misconduct and ordered to be placed in a restricted housing unit for 180 days. Appellant alleged that the knife was planted in his personal belongings by Appellees, who conspired to falsely charge Appellant with possession of contraband, subjecting him to a pretextual form of punishment, and that as a result he has been set back nine months in his eligibility for a prerelease program.

Appellant asserts in his appeal that the trial court committed an error of law and abuse of discretion in denying, without a hearing, Appellant's petition for leave to file in forma pauperis a complaint in equity. Appellant's application to proceed in forma pauperis was summarily denied by the trial judge on grounds that Appellant's request did not comport in essential respects with Pa. R.C.P. No. 240(h) in that his affidavit failed to

[ 124 Pa. Commw. Page 606]

    indicate the value of his real estate interests and other financial information required by law.

The Superior Court in Davila v. Soto, 250 Pa. Superior Ct. 42, 44, 378 A.2d 443, 444 (1977), stated that "[i]t is the recognized policy of this Commonwealth that when a plaintiff is proved to be in poverty, he still has the right to prosecute his suit free from costs. . . . Conversely, it is also a policy of this Commonwealth that those persons who can afford the costs of appeal may not enjoy the right of appealing without payment." See also Section 1725(a)(1) of the Judicial Code, 42 Pa. C.S. ยง 1725(a)(1); Thompson v. Garden Court, Inc., 277 Pa. Superior Ct. 460, 463, 419 A.2d 1238, 1240 (1980). In Thompson, the Superior Court stated that if the trial court ...


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