v. Toll, 320 F. Supp. 185 (E.D. Pa. 1970) (bail bondsman case).
Finally, within the past few years, a host of state statutes which permitted summary seizure prior to notice and hearing have been held constitutionally invalid. Most of these statutes had certain characteristics in common; typically, the statute had roots in the common law and it served a creditor interest rather than a state interest. Most of these statutes struck down provided for a state officer to act at some point in the process, usually in the capacity of a collection agent without the power to make any judicial determination of the rights of the parties involved. Some of the statutes permitted self-help. We find the case at hand substantively indistinguishable from this line of cases, in all of which "color of state law" was found to exist. A sampling of these cases include: Sniadach v. Family Finance Corporation of Bay View, supra ; Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972); Fuentes v. Shevin, supra ; Hall v. Garson, supra ; Santiago v. McElroy, supra ; Klim v. Jones, supra ; Laprease v. Raymours Furniture Company, 315 F. Supp. 716 (N.D.N.Y. 1970); Ford v. Dean's O.K. Tire Store, Inc. (D. Nev. 1973).
IV. Class Action
In their complaint, plaintiffs set forth allegations in support of their contention that this suit should proceed as a class action on the part of both plaintiffs and defendants.
On December 1, 1972, the plaintiffs filed a motion for determination of the classes.
On January 9, 1973, the Court decided that the case should be maintained as a class action on behalf of certain plaintiffs and certain defendants. The respective classes were defined as follows:
The class of plaintiffs shall include all "persons"
within the Eastern District of Pennsylvania who are "installment buyers" or "buyers"
within the meaning of those terms set forth in the "Motor Vehicle Sales Finance Act" (hereinafter "Act"), 1947, June 28, P.L. 1110, § 3, 69 P.S. § 603, and who have had their motor vehicles repossessed extrajudicially and without their voluntary consent
under color of statutes challenged herein, 69 P.S. §§ 623-627 and 12A P.S. §§ 9-503, 9-504.
The class of defendants shall include all persons to whom a license has been issued under the Act as an "installment seller,"
or "sales finance company,"
or as a "collector-repossessor,"
in the Eastern District of Pennsylvania, within the meaning of those terms defined in the Act, who either have carried out extrajudicial, nonconsensual repossessions or may do so in the future under color of the state laws challenged herein.
On January 26, 1973, defendant GMAC filed a motion for reconsideration of the Court's determination. Subsequently, several of the new class defendants joined in this motion. The plaintiffs opposed this motion and moved to have the class definitions expanded.
On March 16, 1973, the Court held a hearing in which all counsel argued their respective positions. Following the hearing, the Court issued a Memorandum Order denying the defendants' motion and amending the classes as requested by the plaintiffs to include the following:
The plaintiffs' class shall also include all persons within the Eastern District of Pennsylvania who, for the purpose of purchasing a motor vehicle, have obtained a loan from a banking institution (within the meaning of that term defined in the Pennsylvania "Motor Vehicle Sales Finance Act"), which banking institution has taken in the loan agreement a concomitant security interest in the motor vehicle being purchased; and who, further, have had, or may in the future have, their motor vehicles repossessed by such banking institution, extrajudicially and without their voluntary consent under color of the statutes challenged herein. The defendants' class shall also include all banking institutions within the Eastern District of Pennsylvania who extend loans to be used for the purchase of motor vehicles and who provide in the loan agreement for a concomitant security interest in the motor vehicle being purchased; and who, further, have carried out extrajudicial, nonconsensual repossession of motor vehicles or may do so in the future, under color of statutes challenged herein.
To maintain an action as a class action, the requesting party has the burden of showing that the prerequisites of Fed. R. Civ. P. 23(a) are met; i.e., (1) the class is so numerous that joinder of all members is impractical; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. In addition, the moving party must prove the existence of one of the enumerated requirements of Rule 23(b).
That the respective classes are so numerous that joinder of all members is impractical is clear. Pursuant to the Court's request, counsel for the Commonwealth of Pennsylvania informed the Court that, as of November 30, 1972, there were 5,220 installment sellers, 1,014 sales finance companies, and 44 collector-repossessors licensed under the Act. The installment sales contract is the most common method of purchasing a motor vehicle.
That there is a common question of law is also clear. The validity of the statutory scheme relating to the repossession of motor vehicles, as it pertains to both classes, comprises the substance of this action.
Since the statutes in question do not compel extrajudicial repossession, the defendants argue that their constitutionality can only be determined "as applied." This, they reason, precludes a finding that there are questions of law in common.
In upholding the ruling of facial unconstitutionality of the landlord's distraint provisions of the Pennsylvania "Landlord and Tenant Act," 68 P.S. § 250.302 et seq., Chief Judge Joseph S. Lord, III, stated:
"We held the legislatively sanctioned procedures unconstitutional because they permitted invasions of protected rights. Evidence of what defendants did cannot amend what the legislature said they may do. The vice is in permissive activity, not individual activity. Since it was permissive procedures that led to a holding of facial unconstitutionality, I see no relevance to any evidence that these particular defendants may have been constitutional white-hats." Stots et al. v. Media Real Estate Co., et al., 355 F. Supp. 240 (E.D. Pa. 1973).
Likewise, whether some of the defendants here are constitutional white-hats is irrelevant. The challenge to these statutes is geared at the permissive procedures; therefore, it is facial. It is the same procedures that form the bond of legal commonality between the plaintiffs and defendants.
The legal and factual issues raised by the representative plaintiffs and defendants to this action include: Whether there was a taking under color of state law; whether it was extrajudicial; whether there was consent; and, whether there was economic justification for the taking. These issues form the crux of the attack on, and the support of, the statutory scheme and are necessarily typical of the claims and defenses of each class.
The representative parties, through their respective counsel, abundantly demonstrated to the Court in the several conferences, hearings, and contacts they have had in this case that they fairly and adequately protected the interests of the rest of the members of their classes.
The plaintiffs claim further that the elements of Rule 23(b) (2) are met in this case. Rule 23(b) (2) states:
"The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."