Judges Opinions Public Notices, — December 30, 2020 10:38 — 0 Comments

Public Notices, December 30, 2020

Volume 58, No. 22

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

ORPHANS’ COURT DIVISION NOTICES

ARTICLES OF INCORPORATION

 

TABLE OF CONTENTS

Kevin J. Bomgardner v. Jessica A. Bomgardner

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF JOSUE D. ENTRIALGO, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

Esther Wolfe, Administratrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF SHIRLEY J. BOLTZ, late of South Londonderry Township, Lebanon County, Pennsylvania, died 12/09/2020. Letters Testamentary have been granted to the undersigned Executrix.

Debra K. Boltz, Executrix

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF JOHN R. BALITCHIK, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Lara J. Balitchik, Executrix

625 N. Railroad Street

Palmyra, PA 17078

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF RICHARD D. HUMMEL, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Kathy Zohner, Executrix

150 Border Lane

Hershey, PA 17033

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF LINDA L. FARST, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Douglas A. Farst, Executor

102 Shady Lane

Palmyra, PA 17078

 

David R. Warner, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF KEVIN E. THOMSEN, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

Alice G. Thomsen, Administrator

55 Scenic Drive

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe

36 West Main Avenue,

Myerstown, PA, 17067

 

ESTATE OF TAKEHIKO DOHI, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

Noriko Dohi, Administratrix

 

  1. Ralph Godfrey, Esquire

Kelly, Parker, & Cohen, LLP

1250 North Mountain Road

Suite 9

Harrisburg, PA 17112

 

ESTATE OF BARBARA A. BRUNGART, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

Pauline M. Sweitzer, Administrator

 

Jon F. Arnold, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF BROCK L. HOWER, late of the City of Lebanon, Lebanon County, Pennsylvania, died October 1, 2020. Letters Testamentary have been granted to the undersigned Executor.

Scott W. Harman, Executor

3 Hilltop Drive

Grantville, PA 17028

 

Jean D. Seibert, Esquire

Caldwell & Kearns, PC

3631 North Front Street

Harrisburg, PA 17110

 

SECOND PUBLICATION

 

ESTATE OF JOAN GOVAN, late of North Londonderry Township, Lebanon County, Pennsylvania, died 12/09/2020. Letters Testamentary have been granted to the undersigned Executrix.

Jane G. Robertson, Executrix

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF ALEXANDER N. GINNETTO, JR., late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Gary L. Hoke, Executor

735 Glenwood Street

Lebanon, PA 17046

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

 

ESTATE OF ROSENE M. DUFFY, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Renee E. Duffy, Executrix

910 Lantern Drive

Lebanon, PA 17067

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

 

ESTATE OF BETTIE A. GIBBLE, late of West Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Jean Bomberger, Executor

 

Young & Young

44 South Main Street

P.O. Box 126

Manheim, PA 17545

 

ESTATE OF JOAN Z. MAULFAIR, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Joel Maulfair, Executor

 

Keith D. Wagner

P.O. Box 323

Palmyra, PA 17078

 

THIRD PUBLICATION

 

ESTATE OF STEPHEN GERARD KUJOVSKY, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

Stephanie A. Kujovsky, Administrator

2012 Kline St.

Lebanon, PA 17042

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF CROSBY TOBIAS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

Joya Morrissey, Administratrix

199 Millardsville Rd

Richland, PA 17087

 

Scott L. Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF LILLIAN G. SLESSER, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

William Slesser, Executor

P.O. Box 6257

Oroville, CA 95966

 

Scott L. Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF R. HAROLD E. SCHAEFFER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Gary Schaeffer, Executor

2400 Mifflin St

Lebanon, PA 17046

 

Scott L. Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF DORIS HELEN PERRY, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

David Perry, Executor

7418 Michael Ave

Easton, MD 21601

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF RUTH E. NEPI, late of Union Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Denise A. Loser, Executrix

2554 State Route 72

Jonestown, PA 17038

 

Scott L. Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF JOHN S. KLINGLER, JR., late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Kathy Ann Houser, Executrix

602 E Walnut St.

Lebanon, PA 17042

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF JUAN R. COTTO, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration, d.b.c.t.n.a. have been granted to the undersigned Administratrix.

Michelle Cotto, Administratrix

711 E Mifflin St

Lebanon, PA 17046

 

Bret M. Wiest, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF WINFIELD ROSS BOYD, JR., late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Winfield Ross Young, Executor

54 Wheatland Circle

Lebanon, PA 17042

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF CLINTON E. VAN BRUNT A/K/A CLINTON E. VANBRUNT, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Karen L. Sensenig, Executrix

10 Walnut Mill Lane

Cleona, PA 17042

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF LARRY KENNETH LEEDY, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

Valerie Long, Administratrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF CRAIG P. SHUEY, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

Katy Beth Shuey, Administratrix, c.t.a.

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF JOHN A. MYERS, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix..

Lee Ann Hanner, Executrix

701 South 2nd Avenue

Lebanon, PA 17042

 

Patrick M. Reb, Esquire

547 South 10th Street

Lebanon, PA 17042

 

ORPHANS’ COURT DIVISION NOTICES

 

Court of Common Pleas of Lebanon County

Orphans’ Court Division Notices

 

Notice is hereby given that the following accounts in decedents estates, Guardianships and trusts have been filed in the Office of the Register of Wills and Clerk of Orphans’ Court of Lebanon County, and that the same will be presented to the Court of Common Pleas-Orphans’ Court Division of said County for Confirmation NISI on

 

Monday, January 4, 2021

At 10:00 A.M.

in Courtroom No. 1, Municipal Building, City of Lebanon

 

FIRST AND FINAL ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION FILED BY EXECUTORS OR ADMINISTRATORS

 

  1. Rogers, Nancy A., aka Rogers, Nancy Anne, dec’d., David C. Rogers, Martha A. Gingrich and Frederick D. Rogers, Exrs., Jonathan B. Batdorf, Atty.

 

LIST OF ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION BY GUARDIANSHIPS AND TRUSTS

 

  1. #113 YEAR 1970, Ninth & Partial Account of Manufacturers & Traders Company, Successor Grdn of the Estate of Irvin L. Root, An Incompetent Person, John D. Enck, Atty.

 

All of the aforesaid accounts and statements of Proposed Distribution will be confirmed ABSOLUTELY as of course by the said Orphans’ Court except those to which exemptions are filed within twenty (20) days after the same are confirmed NISI.

 

Brian Craig

REGISTER OF WILLS AND CLERK OF ORPHANS’ COURT

LEBANON COUNTY, PENNSYLVANIA

 

 

ARTICLES OF INCORPORATION

 

Notice is hereby given that Mick’s Lebanon, Inc. has been incorporated under the provisions of the Pennsylvania Business Corporation Law of 1988.

 

Russell, Krafft & Gruber, LLP

Attn: Aaron K. Zeamer

930 Red Rose Court, Suite 300

Lancaster, PA 17601

 

 

 

 

 

 

 

 

 

JUDGES OPINION

 

Kevin J. Bomgardner v. Jessica A. Bomgardner

 

Civil Action-Family Law-Establishment of Indigency-In Forma Pauperis Status-Payment of Fees-Guardian Ad Litem-Financial Resources-Burden of Proof-Obligation of Parties to Inform-Totality of the Circumstances-Best Interests of the Child

 

Defendant Jessica A. Bomgardner (“Mother”), who had been afforded in forma pauperis status by Court Order on July 9, 2019, submitted a filing seeking to be excused from payment of one-half (1/2) of the fee of the Guardian Ad Litem who had been appointed by the Court in custody proceedings.  Following a hearing on Mother’s request for relief from paying the fee of the Guardian Ad Litem, the Court found that Mother was not entitled to in forma pauperis status.  Mother filed an appeal to the Pennsylvania Superior Court asserting that the Court erred or abused its discretion in finding that she was not entitled to in forma pauperis status.

 

  1. Pa.R.C.P. Rule 240(b) provides that a party who is without financial resources to pay the cost of litigation is entitled to proceed in forma pauperis.

 

  1. Pa.R.C.P. Rule 240(e) requires that where in forma pauperis status is granted, the indigent party has a continuing obligation to inform the court of improvement in the party’s financial circumstances.

 

  1. The mere filing of a request for in forma pauperis status does not automatically establish the right of the applicant to proceed without payment of costs, as the court has the responsibility to determine whether the applicant is indigent.

 

  1. Once a hearing is conducted on whether the applicant is indigent, the court possesses considerable discretion in determining whether to grant the request for in forma pauperis status.

 

  1. It is the burden of the party claiming indigency to establish indigency.

 

  1. In determining whether an applicant is indigent, the applicant’s situation must be reviewed to determine whether payment of costs would create an undue hardship on the applicant’s ability to provide the basic necessities of life for the applicant and his or her family.

 

  1. By failing to report improvement in her financial situation Mother realized in the form of income and benefits she received in violation of Rule 240(e), Mother forfeited her right to rely upon the Court Order of July 9, 2019 to confer in forma pauperis status.

 

  1. In light of the evidence adduced at the hearing that Mother received thousands of dollars in government benefits and more than $1,200.00 per month in spousal and child support, worked on a part-time basis and lived with a boyfriend who paid at least one-half (1/2) of her living expenses, the record did not establish that Mother was without financial resources to pay Court costs.

 

  1. It would not have been in the best interests of the children to direct Plaintiff Kevin J. Bomgardner (“Father”) to bear the entire cost of the Guardian Ad Litem where Mother agreed to the appointment of the Guardian Ad Litem as an alternative to a custody hearing and the need for the Guardian Ad Litem to help the parties’ children is the result of decisions on part of both parents and will benefit both parents and children.

 

L.C.C.C.P. No. 2017-20556, Opinion by Bradford H. Charles, Judge, November 19, 2020.

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

 

CIVIL ACTION-FAMILY

 

KEVIN J. BOMGARDNER,                        :  NO. 2017-20556

                             Plaintiff                                                               :  

  1.                                                                           :                                              

JESSICA A. BOMGARDNER,                   :

                             Defendant/Appellant             :

 

ORDER OF COURT

 

AND NOW, this 19th day of November, 2020, the Court directs that the attached Opinion and the entire file be forwarded to the Pennsylvania Superior Court Prothonotary’s Office as promptly as possible.

BY THE COURT:

 

BRADFORD H. CHARLES

BHC/pmd

 

Cc:    Donna Long Brightbill, Esquire// 315 South Eighth Street, Lebanon PA  17042

Wiley P. Parker, Esquire// 937 Willow St., PO Box 1140, Lebanon PA 17042

Court Administration

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

 

CIVIL ACTION-FAMILY

 

KEVIN J. BOMGARDNER,                        :         NO. 2017-20556

                             Plaintiff                                                               :   

  1.                              :                 

JESSICA A. BOMGARDNER,                   :

                             Defendant/Appellant             :

 

APPEARANCES:

 

Donna Long-Brightbill, Esquire                    For Kevin Bomgardner

LONG BRIGHTBILL

 

Wiley P. Parker, Esquire                                   For Jessica Bomgardner

HENRY & BEAVER

 

Opinion, Charles, J., November 19, 2020

Before us is a dispute that implicates the meaning of the phrase “in forma pauperis”.  Effectively, we are asked to identify the point at which an individual is deemed to be so indigent that taxpayers or other parties should pay his/her litigation expenses.  Because we do not equate “indigency” with “inconvenience”, we will deny the request of Jessica Bomgardner (hereafter MOTHER) to be granted in forma pauperis status.

  1. FACTS

MOTHER and Kevin J. Bomgardner (hereafter FATHER) have been embroiled in contentious custody litigation for approximately three (3) years.  On April 6, 2018, this Court issued a 49-page Opinion to adjudicate the parties’ dispute.  We stated in that Opinion:

“We have absolutely no doubt that both MOTHER and FATHER dearly love their children.  We also conclude without hesitation that both MOTHER and FATHER are good and capable parents.  However, neither MOTHER nor FATHER is a perfect human being.  Over the course of time, both MOTHER and FATHER have metaphorically wounded each other in ways that may make healing difficult.  Sadly, both MOTHER and FATHER have myopically focused upon the grievances each has toward the other to the point where both have, at least temporarily, elevated those grievances over their children’s long-term interests.

 

We are confident that as time progresses, both MOTHER and FATHER will come to realize that they will remain a family unit until their youngest son becomes an adult in fifteen (15) years.  We are confident that both MOTHER and FATHER will at some point come to realize that their children will need active involvement by both their mother and their father if they are to survive the turbulence of adolescence and become healthy and productive adults.  Our hope is that MOTHER and FATHER will realize these truisms sooner rather than later.  For today, the primary goal in this Opinion will be to point both parents forward toward the type of communication, cooperation and compromise that all of their children will need them to internalize.” (Slip Opinion at page 2)

 

Unfortunately, the parties found themselves back in Custody Court roughly one year later when FATHER filed a Petition for Contempt and Modification of Custody.  On October 8, 2019, this Court granted MOTHER’s Request to Dismiss FATHER’s Contempt Motion.  We did so without prejudice to the ability of FATHER to pursue all of his issues via a Custody Modification Petition.

Due in part to the COVID-19 pandemic, a hearing regarding FATHER’s Motion for Modification was not scheduled until June 15, 2020.  Four (4) days before the scheduled hearing, both counsel met with this jurist to communicate a partial agreement that had been reached by their clients.  We issued an Order dated June 11, 2020 to confirm FATHER’s withdrawal of his Motion for Modification of Custody.  At counsel’s request, we appointed professional therapist McKenzie Walker, PhD, as Guardian Ad Litem (hereafter GAL) for the parties’ children.  Our hope, and the hope communicated by counsel, was that Dr. Walker would be able to facilitate healing of the fractured relationship between MOTHER and FATHER.

Shortly after we appointed Dr. Walker, MOTHER submitted a letter seeking to be extricated from any responsibility to pay Dr. Walker’s fee.  She relied upon a praecipe dated July 8, 2019 that she filed seeking in forma pauperis status.  Pursuant to that praecipe – which was not accompanied by any affidavit setting forth income and/or expenses – a Court Order was signed on July 9, 2019 affording MOTHER with in forma pauperis status.  When we received MOTHER’s letter seeking to be relieved of paying Dr. Walker’s fee, we checked the file to ascertain whether any supplemental information was provided by MOTHER to the Court regarding her in forma pauperis status.  The file was devoid of any updated financial information.  We therefore scheduled a hearing for August 20, 2020.  That hearing was later postponed at the request of MOTHER’s counsel until October 1, 2020.

While the custody dispute was progressing, MOTHER and FATHER were also embroiled in contentious child support litigation.  In part because FATHER maintained grossly substandard business financial records, this Court was forced to appoint an accountant to perform an independent evaluation of FATHER’s business income.  On November 19, 2018, this Court authored an Opinion to adjudicate the parties’ child and spousal support dispute.  Following eight pages of detailed analysis, this Court concluded that FATHER possessed monthly net income available for support of $3,649.08.  Based upon that income, we entered an Order requiring FATHER to pay $1,327.20 in child support plus an additional $201.32 in spousal support.  We concluded our Support Opinion by stating the following:

“Without question, FATHER is the primary breadwinner for the Bomgardner family.  Without question, FATHER must sacrifice to financially support his family.  We have little doubt that FATHER’s financial sacrifice will be painful for him.  So be it.

 

As for MOTHER, she will have to grow to recognize the reality that two people cannot live as well apart from one another as they could when they were living together.  MOTHER will need to accept the fact that FATHER is not an unlimited piggybank from which money can always be withdrawn.  Sooner or later – and we hope it is sooner – MOTHER will have to use her considerable talents and intellect in order to develop a lucrative career that will enable her to share in the responsibility of financially supporting her family.” (Slip Opinion at pages 18-19).

 

Since our written Opinion in late 2018, the parties’ child support fights have continued.  Simultaneous with this Opinion, we have authored another Child Support Opinion that affirmed the recommendation of a Domestic Relations Master (DRM).  That recommendation required FATHER to pay a total of $1,229.00 in child and spousal support between March and May of 2020, $754.00 in child and spousal support between May and July of 2020 and $1, 229.00 in child and spousal support following August 1, 2020.

At the October 1, 2020 hearing, MOTHER provided testimony that she was employed as a CNA on an as needed basis. (N.T. 3-4).  She testified that she did not work full-time because of COVID (N.T. 4) and because she was taking on-line courses. (N.T. 5)[1].  For a period of time during 2020, MOTHER received governmental benefits that yielded her $783.00 per week.  (N.T. 5).  In addition, she received a lump-sum Federal stimulus payment of approximately $2,500.00.  (N.T. 13).  On top of that, MOTHER received child support of varying amounts paid by FATHER (See, Exhibit 1) and she lived at all times with a boyfriend who paid at least half of her living expenses. (N.T. 21).  Based upon everything presented, this Court stated at the conclusion of the hearing:

In forma pauperis status is designed to help people who are destitute, not people who have expenses that are Court-related that would create some degree of convenience or sacrifice.  Everyone who accesses the court system has expenses that they do not want to pay.  Everyone who accesses the court system has expenses that are at times inconvenient to pay.  Ms. Bomgardner has had ample financial resources this year.  I am including all of the governmental benefits that she received through COVID…” (N.T. 21-22).

 

MOTHER filed an appeal of the decision entered by this Court on October 1, 2020.  We enter this Opinion is support of our decision to deny MOTHER’s Request for in forma pauperis status.

  1. LEGAL PRINCIPLES

Pa.R.C.P. 240 provides: “A party who is without financial resources to pay the cost of litigation is entitled to proceed in forma pauperis.”  Pa.R.C.P. 240(b).  The Rule further provides that in forma pauperis status shall be conveyed when a litigant’s lawyer files a certification “that he or she is providing free legal service to the party and believes the party is unable to pay the cost.”  Where in forma pauperis status is granted, the indigent party “has a continuing obligation to inform the Court of improvement in the party’s financial circumstances…” Pa. R.C.P. 240(e).

There are relatively few Pennsylvania Appellate decisions that have interpreted Pa.R.C.P. 240.  Our Appellate Courts have declared that the mere filing of a request for in forma pauperis status will not automatically establish the petitioner’s right to proceed without paying costs.  See, In RE: Adoption of B.G.S., 614 A.2d 1161 (Pa. Super. 1992).  Rather, the trial court has the responsibility of determining whether the applicant is indigent.  Crosby Square Apartments v. Henson, 666 A.2d 737 (Pa. Super. 1995).  Generally speaking, a court cannot reject a request for in forma pauperis status without conducting a factual hearing.  Commonwealth v. Cannon, 954 A.2d 1222 (Pa. Super. 2008); Crosby Square Apartments, supra.  Once a hearing is conducted, the trial court possesses “considerable discretion” in determining whether or not to grant a request for in forma pauperis status.  Crosby Square Apartments, supra.

Unfortunately, neither Pa.R.C.P. 240 nor our Appellate Courts have articulated a clear test for determining indigency.  In searching for such a test, we expanded our research to evaluate tests employed in other states.

It is generally agreed that the burden of establishing indigency is on the party claiming indigent status.  See, Hoagland v. Ada County, 303 P.3d 587 (Idaho 2013), Cert. denied 134 S.Ct. 1024; Myles v State, 31 S.W. 3d 868 (Ark. 2000).  The most specific test for indigency that we found was one articulated by the Nevada Supreme Court in Rodriguez v. 8th Judicial District Court Ex Rel County of Clark, 102 P.3d 41 (Nev. 2004).  There, the court stated:

“Determining whether a particular party meets the standard for indigency is a fact-intensive inquiry.  The initial burden of establishing indigency rests with the petitioner, who must demonstrate not that he is entirely destitute and without funds, but that payments for counsel would place an undue hardship on his ability to provide the basic necessities of life for himself and his family.”

Id at page 46.

In Rodriguez, the Court cited several factors should be considered in determining indigency, including:

  • The applicant’s employment status and income;
  • Any income received by the applicant from governmental sources such as Social Security and unemployment compensation;
  • Ownership by the applicant of any assets such as real estate;
  • The applicant’s total indebtedness;
  • Any financial assistance received by the applicant from family or friends.[2]

The test articulated in Rodriguez seems to be fair.  Moreover, the factors articulated by the Nevada Supreme Court are consistent with the information solicited by the Indigency Affidavit Form contained in Pa.R.C.P. 240.  Effectively, the “fact intensive inquiry” required under Rodriguez requires consideration of all aspects of an applicant’s financial situation.  Ultimately, the applicant’s situation must be reviewed with an eye toward determining whether payment of costs would create an “undue hardship on his ability to provide the basic necessities of life for himself and his family.”

III.     Discussion

In her Statement of Errors Complained of on Appeal, MOTHER argues that this Court had no authority to reverse its decision in July of 2019 to provide MOTHER with in forma pauperis status.  Somehow, MOTHER argues that we violated her right to Due Process of law by conducting a hearing at which we afforded both her and FATHER with the opportunity to be heard on the issue.  We find MOTHER’s arguments to be legally and factually unsupportable.

Pa.R.C.P. 240(e) imposes an affirmative duty that requires an in forma pauperis litigant to provide updated financial information.  At no time between July of 2019 and the October 1, 2020 hearing did MOTHER provide such updated information.  Specifically, she did not contact the Court when her child and spousal support award was modified, she did not contact the Court when she received a pandemic stimulus check in the amount of approximately $2,500.00, she did not notify the Court when she went back to work part-time, and she did not notify the Court when she received unemployment compensation benefits in excess of $780.00 per week.  All of that information was relevant to her in forma pauperis status.  But for the fact that this Court conducted a Factual Hearing at which MOTHER was subject to cross-examination, none of that information would have been considered in assessing MOTHER’s ability to pay Court costs.  By violating her duty under Pa.R.C.P. 240(e), MOTHER forfeited her right to rely upon the Court’s decision in 2019 to afford her with in forma pauperis status.

In addition to the above, we found the timing of MOTHER’s claim of poverty to be illuminating of her motive.  A Court hearing was scheduled on June 15, 2020 to hear FATHER’s Request for Modification of Custody.  MOTHER agreed to the appointment of a Guardian Ad Litem so that FATHER would withdraw his Request for Modification.  MOTHER had to have realized that there would be costs associated with the involvement of a GAL.  If in fact those costs were of grave or immediate concern to MOTHER, she should have raised the issue when appointment of a GAL was proposed as an alternative to a Court hearing.  Yet MOTHER remained silent about her unwillingness to pay GAL fees until June 17,2020[3].  Effectively, MOTHER wanted the Modification Hearing cancelled and she wanted FATHER to pay the entire cost of the GAL whose appointment facilitated the hearing’s cancellation.  We find the timing and manner of MOTHER’s assertion of in forma pauperis status to be curious at best and disingenuous at worst[4].

When we conducted the Factual Hearing on October 1, 2020, we considered everything that was presented to us.  We considered the fact that MOTHER received thousands of dollars in governmental benefits.  We considered the fact the MOTHER received in excess of $1,200.00 per month in spousal and child support.  We considered the fact that MOTHER worked part-time.  We considered the fact that MOTHER was able to pay a private lawyer to represent her regarding her divorce. (N.T. 16)  We also considered the fact that MOTHER lives with a boyfriend who pays at least one-half of all of her living expenses.  While payment of Court costs, including the GAL fee, would no doubt require some sacrifice on the part of MOTHER, we did not believe that MOTHER should be declared indigent and without the financial resources that would enable her to pay those Court costs.  When we took yet another look today at the totality of what was presented, we remain convinced that denying MOTHER’s request for in forma pauperis status was the correct decision.

As it relates to what is in the best interests of the parties’ children, we do not believe it would be fair to require that FATHER pay the entire cost of the GAL.  Appointment of the GAL was accomplished because both parties viewed that appointment as a suitable alternative to spending a day in Court.  The need for a GAL to help the parties’ children navigate their parents’ separation is the result of decisions and behavior on the part of both MOTHER and FATHER.  Any healing that the GAL can hopefully broker will benefit both parents and their children.  Under such circumstances, we believe it is appropriate that both parents contribute toward the cost of the GAL.

We remind MOTHER of what we wrote in our November 19, 2018 Child Support Opinion: “FATHER is not an unlimited piggybank from which money can always be withdrawn.”  As we examine the totality of the litigation that has surrounded MOTHER and FATHER for the past three years, we have become convinced that MOTHER will have no motive to compromise so long as she believes that someone else – primarily FATHER – will be responsible for paying for everything.  To quote a colloquial expression, MOTHER needs to have “some skin in the game.”  As it relates to the GAL, MOTHER can and should pay her fair share of the cost.  The interests of the children themselves demand nothing less.

Based upon everything, we stand by the decision we rendered on October 1, 2020 to deny MOTHER’s request for in forma pauperis status.  We now send this case to the Pennsylvania Superior Court with our recommendation that MOTHER’s request for in forma pauperis status be denied.

[1] MOTHER stated that as of the time of the October 1, 2020 Court hearing, she was taking two sociology courses (N.T. 7) totaling five (5) hours per week. (N.T. 11).

[2] Another test was applied by the Texas Appeals Court:  “Whether the party would be able to pay the cost if he or she made a good faith effort to do so.” Donaldson v. Department of Criminal Justice, 355 S.W. 3d 722 (Tex. App. 2011).

[3] MOTHER’s request to be relieved of paying anything to the GAL was forwarded to this Court via a letter sent by her attorney dated June 17, 2020.

[4] So that this Court is crystal clear, we need to emphasize that we have not always found MOTHER to be consistently credible.  We note that MOTHER requested and received a letter from MidPenn Legal Services outlining her eligibility for free legal counsel.  When MOTHER solicited that letter, she represented that her sole source of income was $180.00 per week in unemployment compensation.  MOTHER neglected to advise MidPenn Legal Services that she was employed on a part-time basis, that she received in excess of $1,200.00 per month in child and spousal support, that she had received thousands of dollars in governmental benefits during the summer of 2020 and that she lived with a man who paid at least one-half of her living expenses.  MOTHER’s unwillingness to paint a complete picture in order to achieve her goal of being afforded indigency status was consistent with her past tactics that were designed to manipulate information and events in order to achieve a goal.

 

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