minimized the risk of wrongfully giving the creditor interim possession. In the instant case, on the other hand, the respective interests of the parties to plaintiff's assets are significantly different, with the balancing clearly tipping in plaintiff's favor. And, unlike Mitchell, where a court must approve the ex parte sequestration order and provide notice and opportunity for a full subsequent hearing on the merits, here there is no judicial control or notice and hearing either before or even after the seizure and appropriation of plaintiff's property. Hence, we find the basic due process principles of Fuentes and its progeny, including Mitchell, still applicable to the case at bar.
Analogous to the instant case is Dale v. Hahn, 486 F.2d 76 (2d Cir. 1973), aff'g Unreported District Court Order, on remand from 440 F.2d 633 (2d Cir. 1971), wherein New York's failure to provide adequate notice prior to the appointment of a committee to receive and disburse plaintiff's assets was challenged as violative of the Due Process Clause and of 42 U.S.C. § 1983. The Dale court was faced with the circumstance that a patient was not adequately notified of the pendency of a judicial proceeding in which the state declared her incompetent and suspended her right to possession, use and control of her property. In the instant case, the state does not even provide a judicial hearing, let alone notice thereof. A fortiori the practice assailed herein must be set aside as violative of the Due Process Clause.
At oral argument the Commonwealth attempted to justify its practice of taking custody of plaintiff's property before its right to appropriate the property can be judicially established, on the theory that there is an immediate threat of destruction, loss or mismanagement of the sought-after property by this type of plaintiff. The Commonwealth argument must fail for two reasons. The first problem with the Commonwealth's argument is that even if the Commonwealth's practice was generally justifiable under the facts, the statutes in question are not sufficiently narrowly drawn to track their alleged purpose. A similar type of class presumption
was raised and rejected in Fuentes v. Shevin, supra with respect to the entire population of debtors there subject to prejudgment replevin. The statutes assailed herein, as in Fuentes, are not drawn to meet the "unusual condition" of an immediate risk of loss or destruction posed by certain individuals, but are aimed at an entire undifferentiated population. See also Lebowitz v. Forbes Leasing & Finance Corp., 326 F. Supp. 1335, 1349 (E.D. Pa. 1971), aff'd 456 F.2d 979 (3d Cir.), cert. denied, 409 U.S. 843, 34 L. Ed. 2d 82, 93 S. Ct. 42 (1972).
The second and even more fundamental problem with the Commonwealth's attempted justification of the statutes involved is that its factual underpinning, i.e., that mental patients are presumptively incapable of handling their own funds, has been stripped by the Record in this case. If there were a necessary correlation between hospitalization and incompetency, the statutes could perhaps be justified. However, in our findings of fact we have rejected the Commonwealth's hypothesis that mental patients may be presumed less competent to handle their own assets than the public at large. Hence there is no legitimate justification for the Commonwealth's interference with plaintiff's custody and control of her property without an adjudication that she was incompetent to manage it. Defendants concede, and we have found, that plaintiff was entirely competent to manage her affairs throughout her hospitalization and up to the present time. Moreover, the Commonwealth's own statutes reject the automatic correlation between hospitalization and incompetency. If the Commonwealth's hypothesis that all mental patients present an immediate risk of loss or destruction of property were in fact true, all mental patients could be adjudged legally incompetent. Pennsylvania's Incompetents' Estates Act of 1955, however, requires not just evidence of mental illness, but of three factors: (1) mismanagement, (2) mental illness, and (3) a causal nexus between the two.
In re Streda's Estate, 12 D. & C.2d 523 (Del. Cy. O.C. 1957).
In view of our conclusion that § 424, read in conjunction with § 501, of the Act offends the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution in the general context of this case, relief must be granted as requested by the plaintiff. In accordance with the foregoing opinion, we enter the following order.
AND NOW, this [*] day of June 1974, IT IS ORDERED ADJUDGED and DECREED that:
1. Section 424 of the Mental Health and Mental Retardation Act of 1966, 50 P.S. § 4424, is unconstitutional on its face and as applied in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution to the extent that it denies: (a) plaintiff and other patients who are not adjudged incompetent adequate notice and opportunity to be heard before taking control of these patients' assets under 50 P.S. § 4424 and/or appropriating such assets under 50 P.S. § 4501; and (b) plaintiff and other patients with assets of $2,500 or less the protection of their assets that a guardian or a court would provide if they were adjudged incompetent under the Incompetents' Estates Act of 1955, 50 P.S. § 3101 et seq.
2. The defendants are enjoined from applying 50 P.S. §§ 4424 and 4501 in the unconstitutional manner set forth above.
3. The Commonwealth shall restore to plaintiff all of plaintiff's monies held or taken by the Commonwealth or its agents from October 29, 1971, to April 6, 1973, when plaintiff was hospitalized at the Philadelphia State Hospital at Byberry,