461 F.Supp. 253 (E.D.Pa. 1978), Civ. A. 77-4166, Finberg v. Sullivan

Docket Nº:Civ. A. 77-4166
Citation:461 F.Supp. 253
Party Name:Finberg v. Sullivan
Case Date:November 21, 1978
Court:United States District Courts, 3th Circuit, Eastern District of Pennsylvania

Page 253

461 F.Supp. 253 (E.D.Pa. 1978)

Beatrice FINBERG et al.


Joseph A. SULLIVAN, Sheriff of Philadelphia County, and John Pettit, Prothonotary of The Court of Common Pleas of Philadelphia County, and Sterling Consumer Discount Company.

Civ. A. No. 77-4166.

United States District Court, E.D. Pennsylvania.

Nov. 21, 1978

Page 254

Bruce Fox, Community Legal Services, Inc., Philadelphia, Pa., for plaintiffs.

Jonathan Vipond, III, Ralph J. Teti, Philadelphia, Pa., for defendants.


VanARTSDALEN, District Judge.


This suit raises certain issues as to the constitutional validity of Pennsylvania's

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post-judgment garnishment procedures, Pa.Stat.Ann. tit. 42, Rule 3101, Et seq. Motions for summary judgment have been filed by all parties except the judgment creditor. Upon careful consideration of all the issues, I have concluded that the mootness doctrine does not bar this action, that this case is not properly certifiable as a class action, and that the post-judgment garnishment provisions in question are offensive to neither the due process clause of the fourteenth amendment nor the supremacy clause contained in article VI of the Constitution.


According to the present record, 1 the plaintiff, Beatrice Finberg (Finberg), is a judgment debtor and the defendant, Sterling Consumer Discount Company (Sterling), a judgment creditor as a result of a judgment by default entered against Finberg and in favor of Sterling in the Court of Common Pleas, Philadelphia County, on October 25, 1977. 2 Sterling proceeded to execute against Finberg's personal property in order to satisfy its judgment by means of the garnishment procedures in question. Pursuant to Rule 3103(a), Sterling filed a praecipe for a writ of execution with Americo V. Cortese, 3 the prothonotary of the Court of Common Pleas, Philadelphia County (the prothonotary), naming Finberg and the Philadelphia National Bank (the garnishee). The writ was transmitted to the defendant Joseph A. Sullivan, Sheriff of Philadelphia County (the sheriff), in accordance with Rule 3103(e), and the sheriff, on November 3, 1977, made service of the writ upon the garnishee pursuant to Rules 3108 and 3111. On November 4, the garnishee forwarded a copy of the writ to Finberg, as required by Rule 3140(a), accompanied by a letter informing her that $550 of her funds on deposit with the garnishee were being placed in a suspense account "pending disposition of this matter." These communications were received by her on November 7. On November 18, 1977, plaintiff received a copy of the garnishee's response to Sterling's interrogatories, as required by Rule 3140(b).

Shortly thereafter, Finberg filed an action in state court seeking to release the garnished funds to her use. On December 8, 1977, by order of a state court judge, $300 of the garnished $550 was released to Finberg by the garnishee. The basis for this release was a joint recognition by the parties that under state law there existed a $300.00 exemption from garnishment for debtors such as Finberg. 4 Following certain pretrial discovery, Finberg and Sterling, the loan creditor, reached an agreement whereby the remainder of the funds still held by the garnishee would be released. On May 30, 1978, Finberg was notified by the garnishee that $226.50 was being restored to her use but that $23.50 was being retained as a service charge to cover the garnishee's expenses resulting from the garnishment. Thus, with the exception of the $23.50 service charge, all of the garnished funds have been returned to Finberg.

The allegations of the amended complaint with respect to the plaintiff Beverly Demcher are rather scanty. It appears simply that Demcher's bank account with the First Pennsylvania Bank in Philadelphia containing $319.41 was garnished on or about May 31, 1978, in much the same way that Finberg's account was garnished. The garnishment of Demcher's bank account

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was related to a civil judgment entered against her in the courts of Delaware County, Pennsylvania. She alleges that to this date she has been deprived of the use of those garnished funds. However, nowhere does Demcher allege that the funds garnished include any benefits paid to her through federal social security programs funds that Congress has determined should be exempt from garnishment. See note 5 Infra.

Plaintiffs, John and Patricia Dzubak (the Dzubaks), are also judgment debtors who allege that their bank account with the Philadelphia National Bank was garnished on April 19, 1978, pursuant to the garnishment provisions in question. However, as a result of a petition filed in state court, all of the Dzubaks' garnished funds were released to their use on April 27, 1978. It should also be noted that the Dzubaks have not alleged that any of the funds garnished are social security funds.


Plaintiff's amended complaint contains two counts. Count I alleges that the action of the state defendants in causing the summary and ex parte garnishment of plaintiffs' bank accounts violates the due process clause of the fourteenth amendment, in that no prior notice of the garnishment was given to the judgment debtors, nor was a prior hearing afforded on the issue of the debtors' possible defenses or exemptions to the garnishment. Alternatively, Count I asserts that even if due process does not require prior notice and a hearing, the garnishment procedures are nevertheless constitutionally frail because they do not provide for notice to the judgment debtor of the exemptions and legal or equitable defenses that may be raised, and because there is no absolute right to a prompt post-garnishment hearing.

Count II asserts that under federal law, 42 U.S.C. s 407, monies paid pursuant to the Social Security Act are exempt from levy or execution, 5 and therefore the garnishment procedures deprive judgment debtors like Finberg of their federal rights in violation of the supremacy clause of article VI of the Constitution.

In both the original and the amended complaint, the plaintiffs seek certification of a class composed of individuals situated similarly to the plaintiffs. See Part IV Infra.

The plaintiffs, on their own behalf and on behalf of the class they purport to represent, seek:

1. a declaratory judgment to the effect that the summary garnishment procedures in question are violative of the fourteenth amendment and unlawfully conflict with federal statutory law;

2. a money judgment against Sterling and in favor of plaintiff Finberg in the amount of $23.50; and

3. a reasonable attorney's fee.

The sheriff and the prothonotary filed, in February 1978, their individual motions to dismiss the complaint, setting forth various grounds in support thereof. 6 These motions were denied by order of May 22, 1978, and the parties were directed to file any motions for summary judgment which they deemed appropriate. Naturally, one focus of the cross-motions for summary judgment was the possible mootness of Finberg's claims in light of the fact that she had recovered the use of virtually all of her bank funds. Following the filing of these cross-motions, but only one business day prior to the due date for responses thereto, plaintiff filed her amended complaint. The new complaint differed from the original

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complaint only in the addition of plaintiff Demcher and the plaintiffs Dzubaks, and the relatively insignificant substitution of defendant Pettit for defendant Cortese. Although it appears that the only purpose of the amended pleading was to avoid the thorny issue of whether the denial or non-certification of a putative class action in conjunction with the apparent mooting of the putative class representative's claims renders the entire case moot and therefore non-adjudicable, there is little question that under the federal rules the plaintiff was entitled "(to) amend (her complaint) once as a matter of course at any time before a responsive pleading (was) served." Fed.R.Civ.P. 15(a).


Plaintiffs seek certification of a class composed of all judgment debtors with personalty in Philadelphia who are or may be subject to having their personalty garnished under the Pennsylvania Rules of Civil Procedure and who have either legal or equitable defenses to all or part of the execution. Plaintiffs also desire certification of a subclass of all judgment debtors who have personalty in Philadelphia which is exempt from execution by virtue of federal law.

Because the merits of the constitutional claims asserted here on behalf of the class have for the reasons set forth below been decided adversely to the plaintiffs, class action certification would serve no purpose and is therefore denied. 7


Courts may not, consistent with the "case or controversy" requirement of article III, hear cases which are moot, I. e., where "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1968). Defendant contends that the return to the plaintiff of the bulk of the exempt funds renders the claim dead and the case moot. On the contrary, plaintiff Finberg has in fact not recovered all of the funds originally garnished from her bank account; $23.50 of the $550.00 originally garnished was retained by the bank to cover its expenses resulting from the garnishment, and it is this sum that the plaintiff in her amended complaint now seeks as damages. Clearly, this is a "live" claim, albeit a modest one; it differs from its predecessor in amount, but not in kind. And certainly, any claim for monetary damages resulting from operation of a challenged statute is a legally cognizable one. See Flagg Bros, Inc. v. Brooks, 436 U.S. 149, 154 n.2, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). This case is,...

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