634 F.2d 50 (3rd Cir. 1980), 79-1129, Finberg v. Sullivan

Docket Nº:79-1129.
Citation:634 F.2d 50
Party Name:FINBERG, Beatrice, Individually, and on behalf of all others similarly situated, Demcher, Beverly, Dzubak, John and Dzubak, Patricia, Individually and on behalf of all others similarly situated, v. SULLIVAN, Joseph A., Individually and in his capacity as Sheriff, Philadelphia County, and Cortese, Americo V., Individually, and in his capacity as Pro
Case Date:October 27, 1980
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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634 F.2d 50 (3rd Cir. 1980)

FINBERG, Beatrice, Individually, and on behalf of all others

similarly situated, Demcher, Beverly, Dzubak, John

and Dzubak, Patricia, Individually and

on behalf of all others

similarly situated,


SULLIVAN, Joseph A., Individually and in his capacity as

Sheriff, Philadelphia County, and Cortese, Americo V.,

Individually, and in his capacity as Prothonotary, Court of

Common Pleas, Philadelphia County, and Sterling Consumer

Discount Company, a corporation.

Appeal of Beatrice FINBERG, on behalf of herself and others

similarly situated, Appellant.

No. 79-1129.

United States Court of Appeals, Third Circuit

October 27, 1980

Argued Nov. 15, 1979.

Reargued En Banc April 28, 1980.

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Bruce Fox (argued), Henry J. Sommer (argued), Community Legal Services, Inc. Philadelphia, Pa., for appellant.

Sheldon L. Albert, City Sol., James M. Penny, Jr., Ralph J. Teti, Asst. City Sols. (argued), City of Philadelphia Law Dept., Philadelphia, Pa., for appellee Joseph A. Sullivan.

Jonathan Vipond, III, Kathleen M. Quinn, Howland W. Abramson, Philadelphia, Pa. (argued), for appellee Americo V. Cortese.

Argued Nov. 15, 1979.

Before SEITZ, Chief Judge, ALDISERT, Circuit Judge, and TEITELBAUM, District Judge. [*]

Argued En Banc April 28, 1980.



SEITZ, Chief Judge.

The appellant sought to have declared unconstitutional the application of Pennsylvania's postjudgment garnishment procedures to freeze her bank accounts pursuant to an attempt to garnish them. On cross-motions for summary judgment, the district court found the procedures valid and denied the requested declaratory relief.

I. Facts

The appellant, Mrs. Beatrice Finberg, is a 68-year-old widow whose sole source of income is social security retirement benefits. In May of 1977, Sterling Consumer Discount Co. (Sterling) sued her in Pennsylvania's Court of Common Pleas for Philadelphia County to enforce a debt. Mrs. Finberg's response to the suit was to write

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Sterling telling of her dependence on social security and offering monthly payments as a settlement. She never filed an answer to Sterling's complaint.

On October 25, 1977, Sterling obtained a default judgment and immediately moved to execute on it by initiating a garnishment of the checking and savings accounts that Mrs. Finberg maintained at Philadelphia National Bank (PNB). The two accounts held a total of $550, all of which she had received as social security benefits.

The initiation of the garnishment proceeded in accordance with Pennsylvania's rules. Sterling filed a praecipe for a writ of execution with the Prothonotary of Philadelphia County, Americo V. Cortese. Cortese issued a writ that named Mrs. Finberg as defendant and PNB as garnishee. He transmitted the writ to Joseph A. Sullivan, Sheriff of Philadelphia County, who served it on PNB. This service had the effect of enjoining the bank from paying out any money from the accounts. The next day, PNB mailed Mrs. Finberg a copy of the writ, and a letter informing her of the attachment of her accounts. See Pa.R.Civ.P. 3103, 3108(d), 3111, 3140(a). 1

The money in these accounts was entirely exempt from attachment and garnishment. The Social Security Act provides an exemption for moneys paid as benefits. 42 U.S.C. § 407 (1976). See Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973) (exemption protects benefits held in checking and savings accounts). In addition, Pennsylvania law grants a general $300 exemption to a class of debtors which includes Mrs. Finberg. Pa.Stat.Ann. tit. 12, § 2161 (Purdon 1967), revised and codified at 42 Pa.Cons.Stat.Ann. § 8123 (Purdon 1979).

However, Mrs. Finberg encountered some difficulties in obtaining a release of her bank accounts from attachment. Prior to the attachment, she received no notice of the garnishment action and had no opportunity to assert her exemption claims. After the attachment, no participant in the garnishment action informed her that her accounts might be exempt from garnishment or of the procedures available for obtaining a release of her exempt property. Pennsylvania law required none of these measures.

On November 18, 1977, Mrs. Finberg filed a petition in the Court of Common Pleas, under Pa.R.Civ.P. 3121(d), to set aside the writ of execution on grounds of the exemption. On December 8, twenty days after the petition was filed, a common pleas judge released $300 from the accounts pursuant to the Pennsylvania exemption. The judge kept the attachment in effect for the remaining $250 so that Sterling's attorney could take Mrs. Finberg's deposition to determine the basis of her claim of an exemption under the Social Security Act. See Pa.R.Civ.P. 209. This deposition was taken on April 11, 1978, and Sterling agreed to the release of the remaining money on that date. The Court of Common Pleas ordered the release of this money on April 25, over five months after the filing of the petition, and PNB released the money on May 30.

II. District Court Proceedings

During the pendency of the state court garnishment proceeding, Mrs. Finberg initiated the present lawsuit in federal court to challenge the constitutionality of Pennsylvania's postjudgment garnishment procedures. Her complaint asserts causes of action under 42 U.S.C. § 1983 (1976) and names as defendants Sterling, Sheriff Joseph A. Sullivan, and Prothonotary Americo V. Cortese.

Following the release of most of her money, Mrs. Finberg amended her complaint to focus her constitutional challenge on the attachment and freezing of her bank accounts during the pendency of the garnishment action. Pa.R.Civ.P. 3111(b, c). The complaint asserted two grounds of constitutional invalidity. First, it alleged that the imposition of the freeze without sufficient procedural safeguards for exempt

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property was a violation of due process. Second, it alleged that the attachment of accounts containing social security benefits is inconsistent with the Social Security Act exemption and hence invalid under the supremacy clause of article six of the Constitution. 2

For relief, the complaint prayed for declarations that Pennsylvania's postjudgment garnishment procedures are unconstitutional under the due process clause and the supremacy clause. On these claims, Mrs. Finberg sought relief for herself and for two classes of similarly situated plaintiffs. She made a timely motion for certification of these classes under Fed.R.Civ.P. 23(b)(2).

The defendants never answered the complaint but moved for summary judgment on all of the claims against them. Mrs. Finberg responded with her own motion for summary judgment. After considering these motions and the record that had been compiled, the district court entered an order disposing of all of the outstanding issues. Finberg v. Sullivan, 461 F.Supp. 253 (E.D.Pa.1978). The court found that Pennsylvania's postjudgment garnishment procedures contain sufficient protection for the judgment debtor to satisfy the due process clause and to avoid conflict with the Social Security Act exemption. Accordingly, it granted summary judgment for the defendants on the declaratory judgment claims. As for the motion for class certification, which had been pending for more than nine months, the court concluded that its denial of relief on the merits left no purpose for certification. It therefore denied the motion.

Mrs. Finberg filed the present appeal. 3 She asserts errors in the denial on the merits of the declaratory judgment claims and in the denial of the class certification motion. Two of the defendants, the prothonotary and the sheriff, have appeared as appellees to support the district court's rulings. Sterling has not appeared as an appellee.

III. Jurisdictional Issues

Because the district court's grants of summary judgment concluded its proceedings, we have jurisdiction to hear the appeal under 28 U.S.C. § 1291 (1976). In our deliberations, we have encountered two questions concerning the justiciability of the declaratory judgment claims against the prothonotary and the sheriff. The first is whether the prothonotary and the sheriff are properly named as defendants. The second is whether the controversy in this case has become moot.

A. Proper Defendants

A suggestion was made at oral argument that the prothonotary and the sheriff are not the proper state officials to name as defendants. Arguably, other state officials would have defended the constitutionality of the postjudgment garnishment procedures more vigorously. Our function, of course, is not to determine the most suitable defendants but to decide whether the complaint has named defendants who meet the prerequisites to adjudication in a federal court.

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In Ex Parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908), the seminal decision on suits to restrain the enforcement of laws alleged to be unconstitutional, the Supreme Court held that a particular official was properly named as a defendant if the official "by virtue of his office has some connection with the enforcement of the act." So long as such a connection existed, the Court held, the suit to restrain enforcement could be characterized as a suit against the official personally and not as a suit against the state. The bar of the eleventh amendment was thereby avoided. Id. at 150-56, 28 S.Ct. at 450-452.

Ex Parte Young also explained the nature of the necessary connection. The state official sued in Ex Parte Young was the attorney general, and he had a sufficient "connection" with the...

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