The filings required by this rule are subject to the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania. See Pa.R.Civ.P. 205.6.
Subdivision (b) addresses additional requirements when a party commences a civil action via the issuance of a writ of summons and seeks waiver of fees and costs. Within 90 days of filing the application, the party must file the complaint. Once the complaint is filed, the court may act on the application. If a party fails to file timely the complaint, the action may be dismissed.
Subdivision (c) enables the courts of common pleas to eliminate frivolous lawsuits involving a party who is requesting a waiver of fees and costs. The effect of such lawsuits on the judicial system was stated by the Supreme Court of the United States in Neitzke v. Williams, 490 U.S. 319 (1989):
We recognize the problems in judicial administration caused by the surfeit of meritless in forma pauperis complaints in the federal courts, not the least of which is the possibility that meritorious complaints will receive inadequate attention or be difficult to identify amidst the overwhelming number of meritless complaints.
Id. at 326. This definition is virtually identical in its statement with the definition of the Supreme Court of Pennsylvania in Robinson v. Com., Pa. Board of Probation and Parole, 582 A.2d 857, 860 (Pa. 1990) defining the term ‘‘frivolous’’ as used in Pa.R.A.P. 2744 as ‘‘an appeal which lacks any basis in law or fact.’’
See Pa.R.Civ.P.M.D.J. 1016—1020 for the procedures governing reconsideration in the court of common pleas of the denial of an application to waive fees and costs by a magisterial district judge.
Historical Commentary
The following commentary is historical in nature and represents statements of the Committee at the time of rulemaking:
Explanatory Comment—1991
The Judiciary Act Repealer Act (JARA) became law in 1978, repealing literally thousands of statutory provisions governing civil practice and procedure and amending many others. The Rules of Civil Procedure contained many references to these repealed and amended statutes.
The recent Order of the Supreme Court deletes several notes which are obsolete either because they refer to statutes which have been repealed or amended or because they are no longer of benefit to the bench and bar. Other notes have been amended to refer to current statutory provisions or other rules.
The following rules have been amended:
* * * * *
There are two housekeeping amendments. Rule 240 governing proceedings in forma pauperis has been amended by deleting the opening phrase of subdivision (c)(3). The language was surplusage and had no relevance to the subdivision.
Second, Rule 1041.1(b) governing asbestos litigation was amended by deleting the second paragraph. The second paragraph repeated the text of Rule of Judicial Administration 1902 verbatim and was unnecessary here. No change in practice results from the deletion of the second paragraph.
The amendments are of a technical nature only and do not result in any change in practice or procedure.
New subdivision (i) of Pennsylvania Rule of Civil Procedure 240 governing proceedings in forma pauperis enables the courts of common pleas to eliminate frivolous in forma pauperis lawsuits. The effect of such lawsuits on the judicial system was stated by the Supreme Court of the United States in Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338, 347 (1990):
We recognize the problems in judicial administration caused by the surfeit of meritless in forma pauperis complaints in the federal courts, not the least of which is the possibility that meritorious complaints will receive inadequate attention or be difficult to identify amidst the overwhelming number of meritless complaints.
New Rule 240(i) would allow the court to dismiss an action in which a petition for leave to proceed in forma pauperis has been filed and either ‘‘the allegation of poverty is untrue’’ or ‘‘the court is satisfied that the action, proceeding or appeal is frivolous.’’ The court may dismiss a suit under this rule only where the petition for in forma pauperis status is filed simultaneously with the commencement of the suit and the court has taken no action on the petition. Once the petition has been granted and the petitioner has taken steps to prosecute the suit, the traditional remedies of preliminary objections, judgment on the pleadings and summary judgment are available to the defending party.
The subject of the rule is the ‘‘frivolous’’ lawsuit. A note has been added to the rule calling attention to a definition of that term by the Supreme Court of the United States. That definition is virtually identical in its statement with the definition of the Supreme Court of Pennsylvania in Robinson v. Com., Pa. Board of Probation and Parole, 525 Pa. 505, 512, 582 A.2d 857, 860 (1990) defining the term ‘‘frivolous’’ as used in Pennsylvania Rule of Appellate Procedure 2744 as ‘‘an appeal which lacks any basis in law or fact.’’
Explanatory Comment—1994
It had been suggested that there was a problem in clearing the docket when, upon commencing an action or taking an appeal from the judgment of a district justice, the party commencing the action or taking the appeal petitioned the court for leave to proceed in forma pauperis but the petition was denied and the required fee was never paid. Rule 240(c)(1) has been amended to correct the problem.
Subdivision (c)(1) governs the filing of a petition ‘‘simultaneously with the commencement of the action or with the taking of the appeal’’. Initially, the prothonotary must docket the petition and the action or appeal without the payment of a filing fee. The previous rule simply provided that if the petition is denied, the petitioner must pay the required filing fee and cannot without leave of court take any further step in the action as long as the fee is not paid. The rule did not specify a time within which the fee must be paid or provide a remedy to the prothonotary for an action or appeal stalled by the nonpayment of the filing fee.
Revised Rule 240(c)(1) has been divided into two subparagraphs. Subparagraph (i) consists of the first sentence of previous Rule 240(c)(1) without change and requires the prothonotary to docket the petition and the action or appeal without the payment of a filing fee. Subparagraph (ii) consists of the remaining two sentences of previous Rule 240(c)(1) without change and two new sentences:
(ii) If the court shall thereafter deny the petition, the petitioner shall pay the filing fee for commencing the action or taking the appeal. A party required to pay such fee may not without leave of court take any further steps in the action or appeal so long as such fee remains unpaid. Not sooner than ten days after notice of the denial of the petition pursuant to Rule 236, the prothonotary shall enter a judgment of non pros in the action or strike the appeal if the fee remains unpaid. The action or appeal shall be reinstated only by the court for good cause shown.
The new language permits the prothonotary to clear the docket for the non payment of the filing fee no sooner than ten days after denial of the petition to proceed in forma pauperis. By allowing the prothonotary to proceed, the rule encourages the petitioner to pay the required fee promptly, i.e., within ten days. Two points are to be noted. First, the amended rule does not require the prothonotary to act immediately upon the expiration of the ten day period. The prothonotary is merely directed to act no sooner than ten days after denial of the petition. Second, the prothonotary is directed to enter a judgment of non pros or to strike the appeal only ‘‘if the fee remains unpaid.’’ Consequently, once the fee has been paid the prothonotary may not take any action even though the ten day period has expired.
Explanatory Comment—2001
Prior to the present amendment, Rule 240(d) provided for a party represented by an attorney to proceed in forma pauperis upon the filing of a praecipe. The rule prescribed two requirements for the praecipe. First, the praecipe must have contained ‘‘a certification by the attorney that he or she is providing free legal service to the party and believes the party is unable to pay the costs’’. Second, the praecipe must have been ‘‘accompanied by the affidavit required by subdivision (c)’’ which is filed in support of a petition for leave to proceed in forma pauperis and which demonstrates the party’s inability to pay the costs of litigation.
Subdivision (d) has been amended by deleting the requirement that the affidavit accompany the praecipe. As amended, the rule provides for the prothonotary to allow a party to proceed in forma pauperis solely upon a praecipe containing the certification of the party’s attorney. A conforming amendment to the form of the praecipe in subdivision (i) deletes the reference to the accompanying affidavit. These amendments bring the rule into conformity with Rule 552(d) of the Pennsylvania Rules of Appellate Procedure and Rule 206 E. (iii) of the Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings before District Justices.
Explanatory Comment—2009
There has been an increase in the concern about the use of social security numbers in court paper records. Consequently, the Supreme Court of Pennsylvania has amended Rule 240(h) governing the form for the petition to proceed in forma pauperis by deleting the requirement for a petitioner to supply his or her social security number.
Explanatory Comment—2012
Present subdivision (j) provides for a court, prior to acting on a petition to proceed in forma pauperis, to dismiss an action, proceeding, or appeal if the allegation of poverty in the petition is untrue, or if the court is satisfied that the action, proceeding, or appeal is frivolous. However, subdivision (j) did not consider the situation where an action is commenced by the issuance of a writ of summons. The amendment to subdivision (j) requires the party commencing an action by writ of summons and seeking to proceed in forma pauperis to file the complaint within ninety days of filing the petition. The court would not make a determination on the petition until the complaint is filed. If the complaint is not filed within the ninety-day time period, the court may dismiss the action pursuant to procedures set forth in subdivision (j)(1).
Explanatory Comment—2018
On January 6, 2017, the Supreme Court of Pennsylvania adopted the Public Access Policy: Case Records of the Appellate and Trial Courts (Policy), which will become effective January 6, 2018. To provide guidance to practitioners regarding the Policy, new Rule 205.6 has been adopted and provides that absent any applicable authority that constrains public access, all civil filings must comply with the Policy. Of particular importance are the requirements of Sections 7.0 and 8.0 of the Policy governing confidential information and confidential documents. In addition, the rule provides that all practitioners and unrepresented parties must certify that a filing is compliant with the Policy.
Conforming amendments have been made to Rule 229.2 governing the petition to transfer structured settlement payment rights, Rule 240 governing the petition to proceed in forma pauperis, Rule 1018 governing captions, and Rule 2028 governing the naming and caption of minor children’s names in actions by and against a minor. Section 7.0(A)(5) of the Policy prohibits the disclosure of the names of minor children in a filing unless the minor is charged as a defendant in a criminal matter. Both Rule 229.2 and Rule 240 require the filing of an affidavit in support of the petition. The form affidavit currently requires the disclosure of the full names of any minor children of the petitioner. See Rule 229.2(f) and 240(h). The amendment requires a petitioner to provide the initials only of any minor children. For Rule 2028, the amended rule requires that minor’s initials only be provided in the caption. A cross-reference to Rule 2028 has been added to the note to Rule 1018. In addition, a note cross-referencing new Rule 205.6 has been added to Rules 229.2, 240, and 2028. Stylistic amendments to Rule 240 have also been made.
