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EPPS v. CORTESE

March 31, 1971

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.



The opinion of the court was delivered by: TROUTMAN

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. *fn1"

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 parties *fn2" 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 ...


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