The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge
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, ...