Dawes v. Philadelphia Gas Commission, Civ. A. No. 73-2592.

• Decision Date: 05 October 1976
• Docket Number: Civ. A. No. 73-2592.
• Citation: 421 F. Supp. 806
• Parties: Hilda DAWES et al., Plaintiffs, v. The PHILADELPHIA GAS COMMISSION et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

421 F. Supp. 806

Hilda DAWES et al., Plaintiffs, v. The PHILADELPHIA GAS COMMISSION et al., Defendants.

Civ. A. No. 73-2592.

United States District Court, E. D. Pennsylvania.

October 5, 1976.

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Jonathan Stein, David Kraut, James Gavin, and Robert Michael Kemler, Philadelphia, Pa., for plaintiffs.

Blank, Rome, Klaus & Comisky by Gilbert Stein, Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

FULLAM, District Judge.

Plaintiffs in this action challenge certain policies and practices of the Philadelphia Gas Works (PGW) which, it is claimed, deprived plaintiffs and others similarly situated of their constitutional rights. Specifically, it is alleged that the defendants, individually and collectively, acting under color of state law, have violated, and continue to violate, the following constitutional rights of the plaintiffs: (1) their right to procedural due process, by terminating gas service without adequate notice and an opportunity for a prior evidentiary hearing; (2) their right to be secure in their persons and property, by unlawfully entering plaintiffs' homes for the purpose of shutting off gas service; and (3) their right to equal protection and due process, by enforcing security deposit policies which are arbitrary and capricious, and which discriminate against low-income gas consumers in the City of Philadelphia. In addition, plaintiffs assert various common law tort claims for invasion of privacy, and for intentional or reckless infliction of emotional and physical distress in connection with defendants' use of allegedly unfair and wrongful collection practices.

The Complaint asserts jurisdiction under the Civil Rights Act of 1871, 42 U.S.C. § 1983, pursuant to 28 U.S.C. § 1343(3), and general federal question jurisdiction under 28 U.S.C. § 1331; and plaintiffs have asked the Court to exercise pendent jurisdiction over their claims arising under the common law of Pennsylvania. The defendants, besides PGW,¹ are: The City of Philadelphia and the Philadelphia Gas Commission; the Philadelphia Facilities Management Corporation (a "private" non-profit corporation which manages PGW on behalf of the City); and the following individuals: the Mayor of Philadelphia, the members of the Philadelphia Gas Commission, and the Vice-President and members of the Board of Directors of the Philadelphia Facilities Management Corporation.²

A hearing on plaintiffs' application for a temporary restraining order was held on November 16, 1973. Following that hearing, I entered an Order denying immediate injunctive relief. Thereafter, with the approval and encouragement of the Court, counsel for the parties worked out interim procedures for processing individual billing disputes between consumers and the utility, and agreed that this procedure would remain in effect pending final disposition of the lawsuit. Under this arrangement, in the case of a dispute as to the amount of, or liability for, a particular gas bill, PGW continues to supply gas service (or resumes service which was previously terminated for non-payment), pending adjustment or other disposition of the disputed claim through local legal procedures, provided the customer tenders a security deposit in an amount estimated to reflect current usage, and agrees to pay all future bills when due except in the case of obvious computer error.³

To date, this interim procedure has been invoked satisfactorily in more than 140 instances. I have no hesitation in stating that it has been my hope that experience gained from implementation of this interim procedure might lead to an amicable adjustment of all of the outstanding disputes between the parties. Unfortunately, however, neither side appears willing to accept this temporary arrangement as a basis for a permanent solution to the problem, and both sides insist upon a judicial resolution of all of the legal issues presented by various pending motions.

Plaintiffs have filed a motion for certification as a class action under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. Defendants oppose class treatment and have, in addition, filed motions to dismiss the action pursuant to Rule 12, on the following grounds: (1) failure to state a claim upon which relief can be granted; (2) lack of subject matter jurisdiction; (3) abstention; and (4) the bar allegedly represented by the Johnson Act, 28 U.S.C. § 1342. With respect to plaintiffs' "Second Claim," concerning alleged unlawful entries into customers' homes, the defendants have moved in the alternative for summary judgment. In addition, both sides have briefed the merits of plaintiffs' "First Claim," concerning the requirements of procedural due process in termination of gas service, and have submitted affidavits, exhibits, and other materials outside the pleadings in support of their respective positions on this issue. Accordingly, despite the failure of either side to move formally for summary judgment on the First Claim, I intend not only to rule upon defendants' Rule 12 motions to dismiss that claim, but also to dispose of the claim on the merits. See 6 Moore's Federal Practice, ¶ 56.12, at 56-334, 338-39; Jennings v. Davis, 476 F.2d 1271 (8th Cir. 1973). Before ruling on the merits, however, I will give the parties an opportunity to file formal motions for summary judgment, supported by such additional briefs, affidavits, or other materials as they deem appropriate, and to request a hearing thereon, if desired. My strong impression is that there are no genuine issues of material fact to be tried concerning the First Claim; if either side persuades me otherwise, the First Claim will be scheduled promptly for trial.

I. Plaintiffs' Class Action Motion

Plaintiffs seek to maintain this action on behalf of three subclasses: The first includes all recipients of gas furnished by the defendants whose service has been terminated, or who are threatened with termination of service, for alleged non-payment of bills, without adequate notice and an opportunity for a pre-termination hearing. The second includes those persons who are unable to obtain gas service (or the restoration of previously terminated service) because of their financial inability to pay security deposits demanded by the defendants. The third, represented by the intervenor plaintiffs, includes those members of the first subclass who are not themselves direct customers of PGW but are tenants whose landlords are legally responsible for supplying gas, and whose service has been, or is in danger of being, terminated, without notice or a prior hearing, because of the landlord's alleged failure to pay PGW gas bills for those housing units.

The defendants have made several arguments in opposition to class certification as a whole, and have also raised a specific objection to the inclusion, as a subclass, of tenants who are not PGW customers. I will discuss these points in turn.

Relying upon Ihrke v. Northern States Power Co., 459 F.2d 566 (8th Cir.) vacated and dismissed as moot, 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72 (1972), defendants argue that plaintiffs' claims are not typical of the claims of the class, and that plaintiffs will not fairly and adequately protect the interests of the class, because of the distinct possibility that many, perhaps most, of the members of the putative class are satisfied with the status quo. It is defendant's contention that most PGW customers would prefer not to run the risk of increases in gas rates which might become necessary to defray the additional expense of providing a pre-termination hearing procedure, as well as possible losses which might be incurred if the remedies sought by plaintiffs impaired the overall efficiency of PGW's collection efforts.

I find myself unable to agree with the reasoning of the Eight Circuit in Ihrke. As stated by Professor Moore, the issue of typicalness "is not a subjective test, authorizing a judge to dismiss a class action based on a substantial legal claim where he thinks some members of the class may prefer to leave the violation of their rights unremedied." 3B Moore's Federal Practice ¶ 23.06-2, at p. 23-327. See Cottrell v. Virginia Elec. & Power Co., 62 F.R.D. 516 (E.D.Va.1974); Koger v. Guarino, 412 F.Supp. 1375 (E.D.Pa.1976) (Broderick, J.).

If there is a constitutional right to a pre-termination hearing, individual plaintiffs surely cannot be precluded from asserting such a right merely because a majority of their fellow customers might prefer not to have the right asserted. In determining whether the litigation asserting the existence of such a right may properly be maintained as a class action, the issue is merely whether the representative plaintiffs have demonstrated the probability of the existence of a sufficient number of persons similarly inclined and similarly situated to render the class action device the appropriate mechanism for obtaining a judicial determination of the rights alleged.

By defendants' own reckoning,⁴ approximately 38,000 PGW customers each month are sent "shut-off" notices which threaten termination of gas service if their allegedly delinquent bills are not paid within six days of the date of the notice. Of these, most pay without further ado, but in the remaining cases — about 20,000 per year — gas service actually is terminated. Obviously, these cases are not uniform, but rather are shaded by individual circumstances; some customers claim to have paid the bill in question, while others contest the amount stated, or merely question a portion of the bill. Undoubtedly, too, there are those who simply deign not to pay an admittedly or obviously correct bill. Such distinctions among individual cases do not obviate the fact that the defendants' collection policies and practices operate uniformly against the entire class of persons whom plaintiffs seek to represent. Likewise, de...