of the property and may order that the property be delivered to the Sheriff. Pa. R. Civ. P. 1081. Where no counter-bond is filed, the Sheriff delivers the property to the plaintiff on the writ. A party who asserts a right to the property by his action and who fails to maintain his right to possession is required to pay the party entitled thereto the value of the property in addition to all legal costs, and fees and all damages sustained by reason of the issuance of the writ. Pa. R. Civ. P. 1073(a)(2).
Plaintiffs, in their primary constitutional attack, contend that the above cited scheme of statutes and rules, on its face, operates to deprive them of their property without due process of law. In so arguing plaintiffs place great reliance upon the Supreme Court's two recent decisions in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969) and Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).
Admittedly, there are broad and general procedural similarities between those cases and the instant case; however, both have centrally distinguishing and compelling facts which make them inapposite to the case before this Court. In Sniadach the Supreme Court held that the Wisconsin prejudgment wage garnishment procedure violated fundamental principles of due process. The Court was understandably concerned with the compelling circumstances that an individual's wages were, without notice, indefinitely "frozen" pending the outcome of extended litigation. The Court emphasized the unique characteristic of wages as a " specialized type of property presenting distinct problems in our economic system ". (Emphasis added) 395 U.S. at 340, 89 S. Ct. at 1822. To refer to wages as a "specialized type of property" is to understate the differences between wages and all other types of property. To refer to wages as "presenting distinct problems in our economic system" is to again understate the wholly unique problems incident to the seizure of wages as opposed to all other types of property. That was, for the purposes of Sniadach, a sufficient reference. It is obvious that wages are more than mere property. They are the means or medium by and through which the necessities of life are purchased. To deny the prejudgment attachment of the medium or means of exchange is fundamental to the orderly workings of the economics of a complex society. Wages belong to the wage earner until they are pledged or committed to another. Because they are used in so many different ways and because they have no practical substitute, they should not and must not become the subject of prejudgment attachment without notice by a collateral creditor.
Because wages have no substitute and because they are each day used to obtain and meet the needs of that day they are quite unlike the property here involved -- stereo sets, rings, diamond watches, tables, stools and beds. The debtor can temporarily live without such property while its owner seeks its return in kind. In Sniadach, the creditor sought property to which he had no title and which, because of its unique character, was an irreplaceable necessity to the debtor. In contrast, the creditor here seeks specifically identifiable property to which he has reserved title and which he now seeks in order to prevent its loss, concealment or destruction. To eliminate a summary remedy which permits immediate repossession of secured property may well limit an aggrieved creditor to a worthless judgment with the attendant legal expense of obtaining it. Sniadach involved a seizure grounded in a collateral claim on a promissory note where the creditor utilizing the garnishment procedure had no colorable interest whatsoever in the debtor's wages nor any interest in protecting or preserving his own property. The situation in Sniadach, therefore, is readily distinguishable both factually and in principle from a replevin with bond action where a purchase money creditor is seeking, by way of legal process, to protect a validly created security interest in specific and identifiable property.
Goldberg v. Kelly, supra, is also inapposite. Like Sniadach, compelling circumstances were paramount in the Court's analysis. "Welfare benefits" there were the equivalent of the "wages" earned in the Sniadach case. The "benefits" were "money" in the hands of the recipient, the medium of exchange through which to obtain the day's needs. That it was "welfare" rather than "wages" is legally insignificant. The prehearing termination of welfare benefits deprived ostensibly eligible recipients of the very means by which to live for an indeterminate period of time. The governmental interest in preserving the uninterrupted receipt of welfare, considering the "brutal need" and destitute circumstances of the ostensibly eligible welfare recipients clearly outweighed countervailing fiscal and administrative considerations. Both Sniadach and Goldberg, supra, must be understood in light of the particular facts before the Court and should not be read so as to automatically declare all provisional remedies regarding seizure of property unconstitutional regardless of the circumstances of the particular case.
See e.g. Brunswick Corp. v. J. & P. Inc., 424 F.2d 100 (10th Cir. 1970).
The term "due process of law" has been subject to varied interpretations and applications, but at the very least, it implies a process of weighing and balancing the various interests of the State and individuals in judging whether a particular procedural scheme or process satisfies rudimentary principles of fairness. Its application is not mechanical or a matter of formula, but rather is a process of "adjustment". Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162, 71 S. Ct. 624, 95 L. Ed. 817 (1951) (Frankfurter, J., concurring); Cafeteria and Restaurant Workers, etc. v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1960); Ng Fung Ho v. White, 259 U.S. 276, 42 S. Ct. 492, 66 L. Ed. 938 (1922); Federal Communications Comm. v. W.J.R., etc., 337 U.S. 265, 275, 69 S. Ct. 1097, 93 L. Ed. 1353 (1949); Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 15 L. Ed. 372 (1856).
In the instant case, based upon the facts as stipulated, we find no irreparable harm or unconscionable hardships akin to those suffered in Sniadach, Goldberg and the related cases cited by plaintiffs. Replevin with bond as prescribed by the Pennsylvania procedures and pursuant to a conditional sales contract authorizing repossession to protect a title or a valid security interest in our opinion is a situation in which prejudgment seizure of goods without a prior hearing is justified when followed by certain remedies and safeguards here involved. The plaintiffs have not shown that they suffered "grievous loss" of any kind by reason of the temporary dispossession suffered here.
There is no finality accorded to the initial taking by the Sheriff here, nor is there the type of permanent stigma and disgrace which compelled the Supreme Court's decision most recently in Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971).
Plaintiffs, in arguing that the Pennsylvania procedure, on its face, violates due process, suggest that in every provisional remedy, there must be an evidentiary hearing prior to any seizure of property. However, one of the "fundamental requisites of due process of law is the opportunity to be heard" (Emphasis added). Goldberg v. Kelly, 397 U.S. at 267, 90 S. Ct. at 1020; Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 58 L. Ed. 1363 (1914). Due process does not necessarily require a pre-seizure hearing in all cases, but rather demands that there be a reasonable opportunity to be heard and present defenses at some meaningful time and in some meaningful manner. See Coffin Bros. & Co. v. Bennett, 277 U.S. 29, 31, 48 S. Ct. 422, 72 L. Ed. 768 (1927); Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 596-597, 51 S. Ct. 608, 75 L. Ed. 1289 (1930); Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 15 L. Ed. 372 (1856); Armstrong v. Manzo, 380 U.S. 545, 552; 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). "Due process requires that there be an opportunity to present every available defense; but it need not be before the entry of judgment". American Surety Co. v. Baldwin, 287 U.S. 156, 168, 53 S. Ct. 98, 102, 77 L. Ed. 231 (1932).
Under the Pennsylvania replevin with bond procedure the Sheriff, by service of the writ itself, gives the defendant named on the writ actual notice of the pendency of another's claim to a possessory interest in the specific property involved. After the property is taken, each defendant named on the writ is not automatically and forever dispossessed, nor is his adversary's right to possession or title then determined. The property is not forthwith delivered to the plaintiff on the writ. The Pennsylvania procedure is specifically designed so that the defendant, served with the writ, may within a seventy-two hour period
regain possession by filing a counter-bond equivalent to the bond obtained by the party initiating the action. Pa. R. Civ. P. 1076. Upon the filing of a counter-bond, the Sheriff is required to return the property to its original possessor pending a hearing to determine the plaintiff's right to title or possession. Adequate safeguards are built into the Pennsylvania procedure to avoid misuse or abuse of process. Rule 1073(a)(2) specifically provides that "if the plaintiff fails to maintain his right to possession * * * he shall pay to the party entitled thereto the value of the property and all legal costs, fees and damages sustained by reason of the issuance of the writ." Thus, the debtor is made whole including damages for deprivation of the possession of the unspecialized property here involved.
It is apparent from the foregoing that Pennsylvania's procedure for replevin with bond provides the immediate opportunity to repossess the property taken. Thereafter, it is incumbent upon the original moving party to establish his superior right at a hearing at a subsequent time, failing which, the liabilities, including damages, attach as provided in the Pennsylvania rules. We cannot say that this procedure on its face is fundamentally unfair.
The State and creditor interests adverted to in Sniadach, supra, are present in this case. Clearly, the State has a countervailing interest in summary seizure by replevin which is to be weighed against plaintiffs' right not to be temporarily deprived of their property prior to a hearing on the merits. Initially, summary seizure conserves State financial resources and administrative time in reducing the number of evidentiary hearings in a given lawsuit. Additionally, the State and creditor interests coincide in providing a protective remedy for those who have retained title to or security interest in specific and unspeciallized property by authorizing procedures designed to prevent destruction, misuse or concealment of property by the debtor pending final disposition. Adequate remedies made available to creditor interests are necessary to the preservation and continuation of retail credit upon which vast numbers of people must necessarily rely in a constantly inflated economy. To deny the creditor an adequate and practical remedy may deny the debtor of his only means of obtaining many widely accepted, but costly, items, the enjoyment of which should not be reserved to the wealthy. The preservation of adequate remedies is also necessary to the maintenance of many large and small retail businesses without which our economy might well substantially decline to the detriment of the very individuals whom plaintiffs here seek to protect.
We have based our determination solely on the face of the statutes and rules in question and in light of the present record. Plaintiffs have failed to demonstrate on this record the fundamental unfairness of the Pennsylvania statutes and rules per se on due process grounds. We have not been asked to and do not consider the constitutionality of this procedure as it may be applied, used or misused in hypothetical circumstances of undue hardship not presently before the Court. We recognize the importance of not imposing procedural requirements upon the State other than those demanded by the rudimentary concepts of due process. Goldberg v. Kelly, 397 U.S. at 267, 90 S. Ct. 1011, 25 L. Ed. 2d 287. We hesitate to make such an imposition considering the presumption of constitutionality which clothes the Pennsylvania procedures involved on the present record.
Plaintiffs rely heavily upon LaPrease v. Raymours Furniture Co., 315 F. Supp. 716 (N.D.N.Y. July 29, 1970). The provisions of the statute there being considered and the record before the Court may well distinguish it from the instant case. The statutory scheme in LaPrease did not provide, as does the one before us, remedies to make the debtor completely whole by the award of all costs, damages and fees. Additionally, the New York statute provided that the Sheriff shall forcibly enter. Pennsylvania's rules do not so provide; moreover, forcible entry was threatened in LaPrease whereas on our record there clearly was no forcible entry or threat thereof. Furthermore, in LaPrease the debtor alleged a meritorious defense and default was specifically denied. Interestingly, the LaPrease court distinguished the Brunswick case on the theory that a default had been admitted in Brunswick, but denied in LaPrease. Thus, the instant case, where default is not denied, is closer to Brunswick and on the theory advanced by the LaPrease court, we might well follow Brunswick. However, we need not and do not follow the theories of the LaPrease court. There may well be sufficient differences in the statutory procedures from those here involved. If not, we do not hesitate to state that we are in disagreement with LaPrease mainly due to what we consider to be misplaced reliance on the Sniadach and Goldberg cases. We find ourselves in agreement with the analysis in Fuentes v. Faircloth, 317 F. Supp. 954 (S.D. Fla. 1970)
and Brunswick Corp. v. J. & P. Inc., 424 F.2d 100 (10th Cir. 1970).
Aside from their principal contention regarding due process, plaintiffs additionally argue that the Pennsylvania replevin with bond procedures deprive low income individuals of equal protection of the laws and that the statutes and rules violate plaintiffs' right to be free from unreasonable searches and seizures. We are not convinced or persuaded by plaintiffs' arguments on these points.
With respect to the equal protection argument, there is no need for a lengthy analysis based upon the record before the Court. Plaintiffs have alleged generally that they are in poverty straits. Such allegations, if proved, might merit a more detailed consideration of the equal protection arguments. However, such allegations have not been proved -- indeed the only specific evidence in the present record of the financial background of any of plaintiffs is that plaintiff Epps earns in excess of $10,000 per year. Other than this, the record is silent. We are not presented with particularized evidence upon which we can make an intelligent judgment on this issue. See e.g. the evidence presented in Swarb v. Lennox, 314 F. Supp. 1091, 1097 (E.D. Pa. 1970) and Santiago v. McElroy, 319 F. Supp. 284, 291 (E.D. Pa. 1970). Based upon the present record and absent such proof, we shall not engage in deciding hypothetical constitutional questions not placed before the Court in a concrete factual manner.
Plaintiffs' remaining contention generally stated is that based upon a broad reading of Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967) and See v. City of Seattle, 387 U.S. 541, 547, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967), Pennsylvania's replevin with bond procedures have authorized searches and seizures in violation of the Fourth Amendment. Assuming arguendo that the search and seizure provisions of the Fourth Amendment have not been waived by reason of the conditional sales contracts signed by plaintiffs in this case,
and further assuming that the proscriptions of the Fourth Amendment apply to summary civil process to satisfy debt,
we cannot find a violation upon the facts presented. In all the stipulated facts plaintiffs concede that each seizure, pursuant to a writ of replevin, was conducted in a peaceable manner. There were no threats or intimidation nor is there any evidence of a forcible entry. Pennsylvania's statutes and rules do not specifically authorize the use of force. The conduct herein complained of clearly "does not descend to the level of unreasonableness" which is the standard of the Fourth Amendment. See Wyman v. James, 400 U.S. 309, 315, 91 S. Ct. 381, 384, 27 L. Ed. 2d 408 (1971). See also Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Elkins v. United States, 364 U.S. 206, 222, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960). There is nothing in the instant record to indicate that the seizures were other than purely civil in nature, seeking property covered by lawfully created security interests. There is no suggestion that the seizures were made at unreasonable hours or in a forceful or reprehensible manner. These proceedings clearly are not quasi criminal in nature nor are they in aid of any criminal proceeding. On the basis of the facts before us, we are not convinced of the applicability of the Fourth Amendment to the proceedings here in issue nor, assuming it does apply, are we satisfied that the seizures were unreasonable. Therefore, we shall deny plaintiffs' motions for summary judgment and shall grant defendants' motions for summary judgment.