Morrison v. Miller

• Decision Date: 12 September 1990
• Citation: 397 Pa.Super. 153,579 A.2d 976
• Parties: Deborah MORRISON v. Raymond MILLER, Appellant.
• Court: Pennsylvania Superior Court

Page 976

579 A.2d 976

397 Pa.Super. 153

Deborah MORRISON v. Raymond MILLER, Appellant.

Superior Court of Pennsylvania.

Submitted May 29, 1990.

Filed Sept. 12, 1990.

Samuel A. Litzenberger, Quakertown, for appellant.

John B. Kalinkos, Asst. Dist. Atty., Quakertown, for appellee.

Before OLSZEWSKI, CERCONE and BROSKY, JJ.

CERCONE, Judge:

This is an appeal from an order of the Court of Common Pleas of Bucks County, Domestic Relations section, denying appellant Raymond Miller's motion to proceed in forma pauperis. We reverse and remand for proceedings consistent with this opinion.

Our review of the record reveals the following facts. On September 14, 1989, a jury rendered a verdict against appellant with regard to the issue of paternity. Subsequently, appellant filed a motion for post-trial relief on September 20, 1989. On November 1, 1989, appellant filed a motion to be excused from paying the costs of the trial transcript. This motion, however, was denied by the lower court on the same date.

In its opinion, the lower court found that appellant was financially capable of paying the trial transcript costs. The court specifically rejected appellant's argument based upon its interpretation of his IFP Verified Statement. ¹ According to the lower court, appellant's IFP Verified Statement documented his gross monthly income of $1,630.00. ² Moreover, the lower court declared that appellant's appeal was interlocutory.

Prior to addressing the merits of appellant's contention, we must determine whether the relevant order is interlocutory and non-appealable. As our Pennsylvania Supreme Court declared:

It is, of course, well settled that an appeal will lie only from a final order unless otherwise permitted by statute. A final order is one which usually ends the litigation, or alternatively, disposes of the entire case. In determining what constitutes a final order we have followed the approach of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to "practical rather than technical construction" of an order. In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separate from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.

Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citations and footnote omitted). For the reasons outlined below, we find the pertinent order final.

The instant case does not present the first time this Court has been called upon to determine the status of an appeal from an order denying an appellant's request to forego the expense of procuring trial transcripts. In Malenfant v. Ruland, 274 Pa.Super. 506, 418 A.2d 521 (1980), we analyzed a factual and procedural puzzle similar to the one presented in this case by utilizing the three-prong Cohen test as outlined by our supreme court in Pugar. Employing Pugar and Malenfant as guideposts, we apply the Cohen analysis to the case sub judice.

In Malenfant, appellant appealed a lower court order denying his request to impose transcription preparation costs on the county. Id. at 508-89, 418 A.2d at 522. This request was rejected by appellant's trial judge and by the court of common pleas en banc. Id. at 507-08, 418 A.2d at 521-22. In rejecting appellant's motion, the court en banc noted that appellant "had not presented any evidence, either through affidavit, deposition, or otherwise, concerning his ability to bear the costs of transcript preparation. Moreover, ... appellant at no time alleged indigency." Id. at 508, 418 A.2d at 522.

Applying the three-prong Cohen test in Malenfant, we found that the order of the lower court was collateral to the main cause of action and that the right involved was too important to be denied review. Id. at 510, 418 A.2d at 523. We concluded, however, that appellant's finality claim failed under the Cohen analysis since postponement of appellate review would not result in the irreparable loss of the costs claim. Id. Such is not the case here.

In the instant case, appellant, unlike his counterpart in Malenfant, alleged indigency. Appellan...