Wheeler v. Adams Company

Decision Date25 January 1971
Docket NumberCiv. No. 70-1087-K.
Citation322 F. Supp. 645
PartiesRuth WHEELER a/k/a Ruth Fish v. ADAMS COMPANY, Inc., a Maryland Corporation, Honorable Carl W. Bacharach, Associate Judge, People's Court of Baltimore City, J. Jerome Butler, Chief Constable, People's Court of Baltimore City, Honorable William T. Tippett, Jr., Chief Judge, People's Court of Baltimore City, State of Maryland.
CourtU.S. District Court — District of Maryland

Ronald E. Elberger, Lawrence B. Coshnear and Melvin G. Wachs, Baltimore, Md., for plaintiff.

N. Frank Lanocha, Baltimore, Md., for defendant Adams Co., Inc.

Francis B. Burch, Atty. Gen. of Md., and Francis X. Pugh, Asst. Atty. Gen., for defendants Honorable Carl W. Bacharach and Honorable Wiliam T. Tippett, Jr.

George L. Russell, Jr., City Sol., and J. Warren Eberhardt, Asst. City Sol., Baltimore, Md., for defendant J. Jerome Butler.

FRANK A. KAUFMAN, District Judge.

In issue in this case are (1) the validity under the Federal Constitution of the replevin procedures of the People's Court of Baltimore City,1 both facially and as applied to plaintiff herein as an indigent defendant in a replevin proceeding in that Court; and (2) the right of such a defendant to have initially determined in a federal court suit, instituted after the commencement and during the pendency of such state court replevin action, alleged violations of the Federal Truth-in-Lending Act, 15 U.S.C. § 1601 et seq. Preliminarily, questions concerning 42 U.S.C. § 1983 and 28 U.S.C. § 2283, and the interrelationship of those statutory provisions, are posed. The essential facts, material to determination of the pending motions to dismiss and for summary judgment filed by the several defendants, are either not in dispute or are considered in this opinion in the light most favorable to the plaintiff.

On or about November 1, 1969, one of the defendants, Adams Company, Inc. (Adams), a Maryland corporation, sold to plaintiff, a Baltimore resident, a dinette set, pursuant to a retail installment sales contract. Thereafter, during the following four or five months, plaintiff purchased from Adams under several additional retail installment sales agreements, certain items including a vacuum cleaner, two bicycles, and a living room set. Plaintiff alleges that Adams failed to comply in many particulars with the Federal Truth-in-Lending Act in connection with one or more of those contracts, and that Adams also subsequently violated certain of the provisions of its contractual arrangements with plaintiff.2

On July 16, 1970, Adams filed a Statement of Claim in Replevin in the People's Court of Baltimore City.3 Judge Carl W. Bacharach of that Court, one of the defendants herein, has affied that on July 16, 1970 an employee of Adams "exhibited to me conditional sales contracts covering the goods sought to be replevied and signed by the defendant, Ruth Wheeler, and satisfied me that the Adams Company, Inc. was entitled to possession of the goods and that the bond tendered was in a proper amount. Thereupon, I signed the writ and bond and a hearing date was set for September 11, 1970. Thereafter, pursuant to request for a continuance filed by defendant, Ruth Wheeler, the hearing was rescheduled for October 13, 1970."4

Following Judge Bacharach's Order of July 16, 1970, an employee of Adams, accompanied by an Assistant Constable of the People's Court, acting under the supervision of, and pursuant to the authority of, the defendant Butler, Chief Constable of that Court, entered the plaintiff's home while she was absent and seized certain of the articles sought by Adams in the replevin action. There is a factual dispute concerning whether that entry was made with or without the consent of one or more of plaintiff's teen-age daughters and whether the search for certain of the items sought was conducted in a rummaging fashion.

Plaintiff appears to concede that she was advised that, by filing a retorno habendo bond in the amount of $1000 (the same amount as Adams' replevin bond, i. e., double the value of the goods seized), at a cost of $10.00, she could obtain a return of the replevied items. However, plaintiff has affied that she is indigent and cannot afford to purchase such a bond.

Plaintiff seeks injunctive relief under 42 U.S.C. § 19835 against Judges Tippett and Bacharach and Constable Butler, restraining the enforcement of the replevin procedures of the People's Court and also asks for a declaratory judgment pursuant to 28 U.S.C. § 2201, on the grounds that those procedures violate the due process and equal protection principles of the Fourteenth Amendment, and the search and seizure tenets of the Fourth Amendment as made applicable to state action by the Fourteenth Amendment. Plaintiff also alleges facts which raise the question of whether there were Fourth Amendment search and seizure violations in this case in connection with the entry and search of the Wheeler home and the seizure of certain of the replevied items, regardless of the facial validity of the People's Court practices. Additionally, plaintiff seeks a judgment for damages from Adams, including the amount of the finance charges, under 15 U.S.C. § 1640 (e) and 28 U.S.C. § 1337, for the alleged failure by Adams to furnish credit information required by 15 U.S.C. § 1601 et seq., and treble damages for alleged antitrust violations. Injunctive and declaratory relief are also sought against Adams under 15 U.S.C. § 26 and 28 U.S.C. § 2201. Jurisdiction in this case is claimed by plaintiff under 28 U.S.C. § 1343(3)6 and also under 15 U.S.C. § 1640(e).6a

I

Article IV, § 41A of Maryland's Constitution confers upon the judges of the People's Court of Baltimore City the power to "regulate by rules the administration, procedure and practice of said Court * * *." By statute, Md.Ann. Code art. 52, § 58(k) (1968 Repl.Vol.), the Maryland Rules of Procedure, as promulgated by the Court of Appeals of Maryland, are made applicable to the People's Court of Baltimore City only to the extent the Court of Appeals or the People's Court itself makes them so applicable. Articles 15-11 & 15-19, Code of Public Local Laws of Baltimore City (Everstine 1969), provide for the rules of practice and procedure of the People's Court to be the same as the rules followed in civil actions before justices of the peace. Maryland statutory provisions governing replevin procedure before justices of the peace are set forth in Md. Ann.Code art. 52, §§ 69-72 (1958 Repl. Vol.) and require, inter alia, that "before issuing a writ of replevin the justice shall require and take from the party demanding such writ a bond to the party holding such property, with one or more securities who shall make oath before the said justice that he is or they are worth each double the value of the specific article or articles of property intended to be replevied * * *." (art. 52, § 70).

Chief Judge Tippett has filed an affidavit herein stating, in part:

Because Rule B.Q., Sections 43 and 44 of the Maryland Rules of Procedure, permit the immediate issuance of a writ of replevin upon the filing of an approved replevin bond, without the necessity of filing the declaration in the case until 15 days after the writ has been executed and the property returned to the plaintiff, the judges of this court have never formally adopted the aforesaid B.Q. rule, but have at all times conformed to the procedure set forth in Sections 69-72 of Article 52, Maryland Code 1957 (1968 Replacement Volume) governing replevin procedure before justices of the peace.
Before a statement of claim in replevin is accepted for filing by the court clerk, it is necessary that the writ of replevin and the replevin bond both be signed by one of the People's Court judges. No writ will be signed or bond approved unless the party seeking the writ personally appears before the judge and makes a prima facie showing, satisfactory to the judge, that he is entitled to the writ. Any unpaid conditional vendor seeking return of goods must, among other things, exhibit to the judge an executed conditional installment sales contract providing for retention of title in the conditional vendor until the deferred payment price is fully paid. In addition the judge will make such inquiry as he deems necessary to ascertain the value of the goods sought to be replevied, including determination of age and original purchase price, and if the replevin bond tendered appears inadequate, will require the posting of a bond in a proper amount pursuant to provisions of Section 70 of Article 52, Maryland Code 1957 (1968 Replacement Volume), namely, double the value of the goods sought to be replevied.
The constables executing the writs are instructed that they have no authority to, and shall not, force entry into the premises occupied by the defendant and are instructed not to execute the writ in a case where the defendant claims that he is not delinquent in his installment payments, and exhibits receipts to support said contention.7

Judge Bacharach, in one of several affidavits filed herein, has stated that—

had a request been made by or on behalf of Ruth Wheeler to advance her case for a hearing together with a representation that she had a meritorious claim or defense but could not secure a retorno habendo bond, I would have set the case down for a hearing on the merits as promptly as possible and as promptly as the case would have been set for hearing on a writ of retorno habendo.

Judge Tippett has similarly affied as to the availability of an expedited hearing on the merits, to a replevin defendant who is financially unable to obtain a retorno habendo bond and who asks for a prompt hearing.8 Plaintiff addressed no such request to the People's Court, in connection with the matter here in controversy, but claimed in argument before this Court that the availability of an accelerated trial on the merits was unknown by her prior to the filing herein by Judges Tippett and Bacharach of their...

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