Epps v. Cortese

• Decision Date: 24 May 1971
• Docket Number: Civ. A. No. 70-2592.
• Citation: 326 F. Supp. 127
• Parties: Mitchell EPPS, Paul and Ellen Parham, and Rosa Bell Andrews Washington, on behalf of themselves and all others similarly situated v. Americo V. CORTESE, Esquire, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

326 F. Supp. 127

Mitchell EPPS, Paul and Ellen Parham, and Rosa Bell Andrews Washington, on behalf of themselves and all others similarly situated v. Americo V. CORTESE, Esquire, et al.

Civ. A. No. 70-2592.

United States District Court, E. D. Pennsylvania.

March 31, 1971.

Probable Jurisdiction Noted May 24, 1971.

Joel Weisberg, Community Legal Serv., Philadelphia, Pa., for plaintiffs.

Levy Anderson, City Sol., Philadelphia, Pa., for Americo V. Cortese and William M. Lennox.

William Bayer, Philadelphia, Pa., for Government Employees Exchange Corp.

Robert F. Maxwell, Philadelphia, Pa., for Sears, Roebuck and Co.

Before GANEY, Circuit Judge, and TROUTMAN and HANNUM, District Judges.

Probable Jurisdiction Noted May 24, 1971. See 91 S.Ct. 2185.

TROUTMAN, District Judge.

Plaintiffs challenge the constitutionality of those Pennsylvania statutes and rules of civil procedure which provide for the civil action of replevin with bond. Act of 1705, 1 Sm. L. 44, § 12, 12 P.S. § 1821, and April 19, 1901, P.L. 88, as amended, 12 P.S. §§ 1824-1845; Pennsylvania Rules of Civil Procedure 1071-1087.¹

Plaintiffs seek a permanent injunction restraining the defendant Cortese, Prothonotary of the Courts of Philadelphia County, and the defendant Lennox, Sheriff of Philadelphia County, from issuing and executing upon any and all writs of replevin with bond. Since the complaint places in issue the constitutionality of statutes and rules of state-wide application, this statutory three-judge court has been convened pursuant to the provisions of 28 U.S.C. §§ 2281-2284.

The individual plaintiffs are citizens and residents of Philadelphia, Pennsylvania, from whom goods or chattels have been seized pursuant to writs of replevin with bond duly issued and executed respectively by the Prothonotary and Sheriff of Philadelphia County. The corporate defendants, Government Employees Exchange Corporation, and Sears, Roebuck & Company, are creditors who caused two of the writs in question to be issued. The remaining defendant, Lewis Washington, is an individual Pennsylvania resident.

The matter is presently before the Court upon a stipulated record as if on final hearing by agreement of counsel. Presently before the Court for disposition are cross-motions for summary judgment. The facts as stipulated to and agreed upon by and among the parties² are as follows:

1. Writs of replevin with bond have been issued by defendant Cortese or his agents and executed upon by defendant Lennox or his agents against the following named plaintiffs in the Court of Common Pleas of Philadelphia County:

(a) Mitchell Epps, August Term 1970, No. 4082;

(b) Paul Parham, September Term 1970, No. 737;

(c) Rosa Bell Andrews Washington, September Term 1970, No. 1154.

2. Writs of replevin with bond have been issued by the Prothonotary of Philadelphia County or his agents and executed upon by the Sheriff of Philadelphia County or his agents, against numerous other individual residents of the Commonwealth of Pennsylvania since 1705.

3. Under the statutes and rules regulating the issuance of writs of replevin with bond, the Prothonotary and Sheriff are required to issue and execute the writs upon the presentation by any claimant of the requisite documents in accordance with the Acts of Assembly and the Pennsylvania Rules of Civil Procedure applicable to such cases.

4. To obtain a writ of replevin with bond, the party seeking such a writ need file with the Prothonotary or his agents the following documents:

(a) An entry of appearance;

(b) A praecipe for a writ of replevin with bond;

(c) An affidavit of the value of the property to be replevied; and

(d) A bond in double the value of the property.

5. The Prothonotary or his agents do not and are not authorized to request from the party seeking replevin with bond any information concerning their alleged justification for demand in the execution of a writ.

6. Neither the Prothonotary nor the Sheriff are required, under the Replevin With Bond Acts and rules, to give notice of any kind to the defendant named in the writ other than service of the writ itself.

7. The Sheriff, or his agents, upon the issuance of a writ of replevin with bond by the Prothonotary, or his agents, is required to execute upon the writ forthwith.

8. The Sheriff, or his agents, when executing upon a writ of replevin with bond, is required to enter the home of the defendant on the writ and to seize with or without consent of the defendant any and all of the property named in the writ.

9. Neither the Replevin With Bond Act nor the rules expressly set forth that the Sheriff, pursuant to the writ with bond, may forcibly break and enter or that he may not break or enter.

10. In none of the individual cases did the Sheriff forcibly break and enter into the premises of plaintiffs.

11. Neither the Sheriff nor his agents have any discretion in determining the underlying transaction giving rise to the replevin with bond action. They are not required or permitted to hear or determine any issues of the rights of either of the parties to the property in question.

12. The Sheriff, or his agents, after seizing and taking possession of the property named in the writ, must hold it in his custody for a period of seventy-two hours, during which time the defendant named on the writ may regain possession of the property by filing a counter-bond in the same amount as the original bond.

13. The form of the writ required by Pennsylvania Rules of Civil Procedure, Rule 1354, contains no notice to the defendant that he may recover the property by posting a counter-bond, nor does it expressly prohibit this notice.

14. If the defendant on the writ fails to file the counter-bond within the seventy-two hour period, the Sheriff, or his agents, is required to deliver the property seized to the plaintiff on the writ, subject to Rule 1079 dealing with impounding.

15. The plaintiff, Epps, and the defendant, Government Employees Exchange Corporation, are the parties to a contract entitled "Retail Installment Contract—Security Agreement" which provides, inter alia, the following:

"You or assigns shall retain title to said merchandise; I will be responsible for its loss or damage; I will not remove or encumber same; if I default in any payment or breach any covenant herein, the entire balance shall be immediately due and payable and you or assigns may retake the merchandise, sell the same and hold me for any deficiency, or affirm the sale and hold me liable for the unpaid balance * * * Notice to buyer:

1. Do not sign this contract before you read it or if it contains any blank spaces."

16. The property named in the writ to be replevied from plaintiff Epps consisted of one G. E. stereo, two wedding rings, a diamond watch and band and a T.V. roof antenna.

17. Plaintiff Epps, at the time of the institution of the replevin action, earned in excess of $10,000 per year.

18. On February 1, 1969, the plaintiff, Paul Parham, and the defendant, Sears, Roebuck and Co., entered into a similar retail credit contract also providing that the seller retain title in the goods sold and that upon default the seller may at his option repossess the goods. The plaintiff, Ellen Parham, was not a party to the contract.

19. A Harmony House table and four stools and a divan bed were delivered to the plaintiff, Paul Parham, and possession was retained by him in his home until the goods were replevied by the Sheriff of Philadelphia County.

20. The agreements entered into by plaintiffs Epps and Parham comply with the provisions of the Uniform Commercial Code of Pennsylvania and the Goods and Services Installment Sales Act.

21. The payment record of the plaintiff, Paul Parham, shows that there were defaults on his part as to the agreement of February 1, 1969.

22. There were nine (9) telephone calls made by the defendant, Sears, or its representatives, to Mr. Parham and five (5) written communications were also sent. The dates on which such written communications were sent are respectively: May 16, 1970, May 22, 1970, June 22, 1970, July 22, 1970, and August 19, 1970. There were also two (2) personal visits to the home of the plaintiff. All of these telephone calls, letters and visits concerned the problem of the account and its status.

23. On September 11, 1970, a Writ of Replevin With Bond was issued by the Prothonotary of Philadelphia County on behalf of the defendant, Sears, Roebuck and Co., upon the filing by it with the Prothonotary of a bond as required by the Replevin Statutes and Rules, an entry of appearance by the attorney acting for Sears, Roebuck and Co., and a praecipe for the issuance of the writ. There was also filed with the Prothonotary an affidavit stating that the value of the property was $250.00. A bond in the amount of twice the value of the property was also filed.

24. On September 15, 1970, the goods were removed from the home by the office of the Sheriff of Philadelphia County in accordance with the command of the writ. At that time, the original writ was exhibited to the plaintiff's wife, Ellen Parham, and a copy of the said writ was left with her. There was no violence, no breaking and entering, and Ellen Parham admitted the Sheriff to the house for the purpose of executing the replevin in accordance with the mandate of the writ.

25. The defendant, Sears, Roebuck and Co., has not filed a complaint in the replevin action and the plaintiff, Paul Parham, has not requested it to do so, which he would have a right to do under the Replevin Rules and Statutes.

I. JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C. § 1343, 42 U.S. C. § 1983, 28 U.S.C. §§ 2281-2284, and 28 U.S.C. §§ 2201-2202 seeking to redress alleged deprivations, under color of state law, of rights, privileges and immunities secured by the Federal Constitution. More particularly, plaintiffs complain that the Pennsylvania statutes and rules relating to replevin with bond are...