August 1, 2012
CAINE PELZER, APPELLANT
SECRETARY JOHN WRESTLE, PA DOC, SECRETARY, SUPERINTENDENT STEVEN GLUNT, DEPUTIES D. KESSLING, D. CLOSE, MAJOR HOLLIBAUGH, SUPERINTENDENT GERALD ROZUM-SCI SOMERSET
The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge
Submitted: May 11, 2012
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION BY JUDGE COHN JUBELIRER
Caine Pelzer appeals, pro se, from the Order of the Court of Common Pleas of Clearfield County (trial court) that dismissed with prejudice Mr. Pelzer's Form of Writ of Summons (Writ), Application for Leave to Proceed In Forma Pauperis (IFP) (Application), Pre-Complaint Discovery and Request for Production of Documents and Interrogatories (together, Discovery Requests) pursuant to Pennsylvania Rule of Civil Procedure No. 240(j)*fn1 on the basis that the matter before the trial court was frivolous because none of the documents set forth a cause of action. Mr. Pelzer argues on appeal that the trial court erred because, pursuant to McNeil v. Jordan, 586 Pa. 413, 894 A.2d 1260 (2006), dismissal of the Discovery Requests for failure to state a cause of action is improper where the plaintiff is seeking pre-complaint discovery in order to obtain information necessary to support the filing of a complaint and that he should be given the opportunity to proceed IFP in this matter.
Mr. Pelzer filed the Writ, Application, and Discovery Requests with the trial court on or about July 5, 2011. The Writ named Superintendent Steven Glunt of State Correctional Institution (SCI)-Houtzdale as defendant, and indicated that Mr. Pelzer was suing him in the civil division of the trial court. The Application and Discovery Requests named John Wetzel, Secretary of Corrections (Secretary),*fn2
Superintendent Glunt, Deputies D. Kessling and D. Close, Major Hollibaugh, and Superintendent Gerald Rozum of SCI-Somerset, (collectively, Defendants), as defendants. The Application included an affidavit setting forth Mr. Pelzer's lack of financial resources and his statement that he would be unable to pay the costs associated with the present action. The Discovery Requests, filed pursuant to Pennsylvania Rules of Civil Procedure Nos. 4003.8 through 4014 (relating to pre-complaint discovery), named all of the Defendants, and requested the production of documents and that Defendants answer numerous questions about, inter alia, Defendants' personal information (home addresses and Social Security numbers), Mr. Pelzer's disciplinary record, information related to Mr. Pelzer being classified a gang member, and the rationale for transferring him between SCIs. After reviewing these documents, the trial court issued its Order on July 7, 2011, pursuant to Rule 240(j), dismissing the matter with prejudice based on the trial court's conclusion that it was frivolous because the documents did not set forth a cause of action. Mr. Pelzer now appeals to this Court.*fn3
On appeal, Mr. Pelzer argues that the trial court abused its discretion in dismissing his Discovery Requests as frivolous under Rule 240(j) for failing to set forth a cause of action pursuant to McNeil and Rules 4001(c) and 4003.8 and that he should be granted leave to proceed IFP. Mr. Pelzer contends that, before dismissing the matter, the trial court should have allowed him to establish probable cause that his requested pre-complaint discovery would permit him to obtain information with which he could file a complaint capable of surviving a demurrer. According to Mr. Pelzer, his good faith request for pre-complaint discovery is legitimate and, if granted, he expects that the information requested would enable him to prepare a complaint that stated a cause of action. Defendants disagree that the trial court erred in dismissing the matter because Mr. Pelzer's Discovery Requests do not meet the McNeil and Rule 4003.8 standards and his action is frivolous under Rule 240(j).
In this case, we must determine whether the trial court erred or abused its discretion in denying Mr. Pelzer's Discovery Requests, Application, and in dismissing Mr. Pelzer's matter as frivolous under Rule 240(j). In doing so, we review the intersection between Rule 240(j) and pre-complaint discovery under Rules 4001(c) and 4003.8, which can be used to obtain information necessary for pleading a prima facie case prior to filing a complaint.
We first address the issue of Mr. Pelzer's Discovery Requests and
whether the trial court erred in denying those Requests where the
requests were filed by an IFP applicant under Rule 240(j).*fn4
Rule 4001(c) provides, in pertinent part, that "any party may
take the testimony of any person, including a party, by deposition
upon oral examination or written interrogatories for the purpose of
discovery, or for preparation of pleadings." Pa. R.C.P. No. 4001(c).
Thus, Rule 4001(c) specifically contemplates allowing a party to
obtain testimony via "oral examination or written interrogatories" for
the preparation of pleadings, which include complaints. Id.
In McNeil, our Supreme Court discussed the standards necessary for reviewing a request for pre-complaint discovery. The Supreme Court held that the Superior Court erred in affirming a trial court order denying pre-complaint discovery because the plaintiff had not alleged a prima facie case of intentional interference with testamentary expectancy. The Supreme Court explained that requiring, as the Superior Court did, a plaintiff to have sufficient facts to allege a prima facie case before pre-complaint discovery is permissible was tantamount to writing such discovery out of the civil rules. McNeil, 586 Pa. at 435, 894 A.2d at 1273. In other words, the Supreme Court explained, if a plaintiff could assert a prima facie case, the complaint would survive a demurrer and pre-complaint discovery would be unnecessary. Thus, three of the five justices sitting in McNeil concluded that a lesser standard was appropriate, but that pre-complaint discovery could not be used as a fishing expedition. Justice Baer, writing for himself and Justice Castille, proposed the following test:
Accordingly, to obtain pre-complaint discovery a litigant should be required to demonstrate his good faith as well as probable cause that the information sought is both material and necessary to the filing of a complaint in a pending action. A plaintiff should describe with reasonable detail the materials sought, and state with particularity probable cause for believing the information will materially advance his pleading, as well as averring that, but for the discovery request, he will be unable to formulate a legally sufficient pleading. Under no circumstance should a plaintiff be allowed to embark upon a "fishing expedition,". . . .
Id. at 443-44, 894 A.2d at 1278 (footnote omitted). In a footnote, Justice Baer indicated that the matter would be referred to the Civil Rules Committee to consider the adequacy of the existing rules on pre-complaint discovery and "to recommend any amendments that might clarify this vexing area of procedure." Id. at 445 n.27, 894 A.2d at 1279 n.27. In a concurring opinion, Justice Saylor found Justice Baer's attempt to establish a standard for pre-complaint discovery salutary, but Justice Saylor believed that the facts in McNeil were not amenable to establishing a general rule of application. Id. at 446, 894 A.2d at 1280 (Saylor, J., concurring). Although not joining that part of Justice Baer's opinion setting forth the above-cited standard, Justice Saylor "support[ed] the application by the common pleas court of the probable cause standard on remand in this particular case, as [he] also agree[d] with the majority that this approach embodies the narrower of the grounds offered to support the remand." Id. at 450-51, 894 A.2d at 1282.
Thereafter, the Civil Rules Committee adopted Rule 4003.8. Rule 4003.8, entitled Pre-Complaint Discovery, provides:
(a) A plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.
(b) Upon motion for protective order or other objection to a plaintiff's pre-complaint discovery, the court may require the plaintiff to state with particularity how the discovery will materially advance the preparation of the complaint. In deciding the motion or other objection, the court shall weigh the importance of the discovery request against the burdens imposed on any person or party from whom the discovery is sought.
Pa. R.C.P. No. 4003.8. The explanatory comment to Rule 4003.8 states that subsection (a) establishes a two-prong test for pre-complaint discovery, the first of which, that "the information sought must be material and necessary to the filing of the complaint," is based on the test set forth in McNeil. Pa. R.C.P. No. 4003.8, comment. The comment further explains that Rule 4003.8 does not include McNeil's requirement that the plaintiff establish "'probable cause' that the information is material and necessary." Id. Subsection (b), "require[ing] the plaintiff to state with particularity how the discovery will materially advance the preparation of the complaint," also incorporates language from the standard set forth in McNeil. Pa. R.C.P. No. 4003.8(b) and comment.
Mr. Pelzer contends in his brief to this Court that the trial court should not have dismissed his Discovery Requests because the information he requested is material and necessary for the filing of his complaint and would not cause unreasonable annoyance or embarrassment to the Defendants. However, as Defendants point out, Mr. Pelzer did not provide any explanation for his pre-complaint Discovery Requests to the trial court. Mr. Pelzer did not explain in any of the documents he filed with the trial court why the requested information, which included, inter alia, the home addresses and Social Security numbers of the Defendants, was material and necessary to the filing of a complaint or that his request would "not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party" as required by Rule 4003.8. Indeed, we can think of no situation where an inmate's discovery request for such personal and sensitive information of superintendents, corrections officers, and other SCI staff would be appropriate and necessary for the formulation of a civil complaint, and we understand why the trial court dismissed such inappropriate requests. These Discovery Requests are in the nature of the "fishing expedition" prohibited by McNeil. Mr. Pelzer's failure to comply with the requirements of Section 4003.8 is fatal to his Discovery Requests and, therefore, the trial court did not err or abuse its discretion in dismissing the Discovery Requests.
However, this does not end our inquiry. The dismissal of the pre-complaint Discovery Requests does not, by itself, require the denial of the Application and the dismissal of the Writ. Mr. Pelzer commenced this action by filing the Writ, in which he merely states that Superintendent Glunt is being sued in the civil division of the trial court. The trial court's Order generally held that Mr. Pelzer's failure to set forth a cause of action in the documents renders Mr. Pelzer's matter frivolous. We note that a writ of summons, unlike a complaint, is not a pleading and, therefore, is not required to set forth a cause of action.*fn5 "A bare writ of summons does not contain information about the nature of the claims asserted; the applicable dates; or a description of any alleged wrongful acts." Cope v. Insurance Commissioner, 955 A.2d 1043, 1050 (Pa. Cmwlth. 2008) (citing Rosmondo v. Life Insurance Company of North America, 530 Pa. 37, 42, 606 A.2d 1172, 1174 (1992) (Larson, J. dissenting) (stating that a bare writ of summons "fails to notify the defendant of the nature and extent of the claims being asserted.")).
At the time the trial court dismissed Mr. Pelzer's action, Rule 240(j) provided:
If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party has filed a petition for leave to proceed [IFP], the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if [the court] is satisfied that the action, proceeding or appeal is frivolous.
Pa. R.C.P. No. 240(j). A frivolous action or proceeding has been defined as one that lacks any "'arguable basis either in law or in fact.'" Bailey v. Wakefield, 933 A.2d 1081, 1083 (Pa. Cmwlth. 2007) (quoting Pa. R.C.P. No. 240(j), comment).
Rule 240(j) permits the trial court to dismiss an IFP action if the action lacks an "arguable basis either in law or in fact." Bailey, 933 A.2d at 1083. Because Mr. Pelzer has not filed, and has not been required to file,*fn6 a complaint yet, there are no allegations on which the trial court can make a determination as to whether Mr. Pelzer's action is frivolous, which is required before an action can be dismissed.*fn7 Therefore, the trial court should have waited until a complaint was filed before acting on the Writ and Application.
For the foregoing reasons, we affirm the trial court's dismissal of the Discovery Requests. Additionally, we vacate the trial court's denial of the Application and dismissal of this matter, direct Mr. Pelzer to file a complaint with the trial court within ninety days of the date of this Court's Order, and remand the matter for the trial court to review the filed complaint, if any, pursuant to Rule 240(j). If Mr. Pelzer does not file his complaint within this ninety-day time period, the trial court may dismiss the action.*fn8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Caine Pelzer, : Appellant : v. Secretary John Wrestle, PA DOC, : Secretary, Superintendent Steven : Glunt, Deputies D. Kessling, D. Close, : Major Hollibaugh, Superintendent : Gerald Rozum-SCI Somerset :
No. 51 C.D. 2012 :
NOW, August 1, 2012, the Order of the Court of Common Pleas of Clearfield County (trial court) in the above-captioned matter is AFFIRMED to the extent that it dismissed Caine Pelzer's Pre-Complaint Discovery and Request for Production of Documents and Interrogatories and is VACATED insofar that it dismissed Mr. Pelzer's Form of Writ of Summons and denied Mr. Pelzer's Application for Leave to Proceed In Forma Pauperis. Mr. Pelzer is directed to file a complaint with the trial court within ninety days of the date of this Court's Order, and this matter is REMANDED to the trial court to review the filed complaint, if any, pursuant to Pennsylvania Rule of Civil Procedure No. 240(j). If Mr. Pelzer does not file his complaint within this ninety-day time period, the trial court may dismiss the action.
RENEE COHN JUBELIRER, Judge