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KOGER v. GUARINO

May 3, 1976

JOHNNIE MAE KOGER et al., Plaintiffs
v.
CARMEN F. GUARINO et al., Defendants



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Presently before the Court is the motion of the plaintiffs for partial summary judgment and their motion for class certification under Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs Johnnie Mae Koger, Louis Steinbrecker, Anita Jackson, Arnelle Douglas and Wanda Harrison filed this class action on behalf of a class consisting of all customers of the Department of Water of the City of Philadelphia who have had their water service terminated or are threatened with termination of their water service without adequate due process procedures. Plaintiffs contend that the termination procedures of the Department of Water of the City of Philadelphia violate the Due Process Clause of the Fourteenth Amendment and seek declaratory and injunctive relief. Plaintiffs Johnnie Mae Koger, Anita Jackson, Arnelle Douglas and Wanda Harrison seek to represent a subclass of plaintiffs who are residents of the City of Philadelphia, whose water service has been terminated to their residence because of outstanding water and sewage bills owed by the owner of the premises. Plaintiff Louis Steinbrecker seeks to represent a subclass of all customers of the Department of Water who have contracted for water service and have or are threatened with the termination of water service without adequate due process.

 Defendant Carmen F. Guarino is the Commissioner of the Water Department of the City of Philadelphia and is charged with the administration and enforcement of the ordinances and policies of the City of Philadelphia in connection with the city's water supply system; Defendant Thomas W. Rogers is the Commissioner of the Department of Collections of the City of Philadelphia, which Department is charged with the collection of all water and sewer bills; Defendant Hillel S. Levinson is the Managing Director of the City of Philadelphia and is charged with the supervision of the Water Commissioner; Defendant Frank L. Rizzo is the Mayor of the City of Philadelphia and is responsible for the administration of the City of Philadelphia. The City of Philadelphia is also a defendant.

 Plaintiffs' complaint alleges in three counts that the defendants have (1) deprived them of their constitutional right to due process of law under the Fourteenth Amendment by terminating or threatening to terminate their water service without advance notice and an opportunity to contest the proposed termination in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983; (2) tortiously caused the plaintiffs to suffer severe emotional and mental distress by threatening to withhold water service from the plaintiffs is an abusive and harassing manner and with reckless disregard for the truth or merits of the defenses of the plaintiffs; and (3) denied the plaintiffs due process of law and equal protection of the laws in violation of the Fourteenth Amendment by threatening to terminate water service to tenants unless the tenant pays the landlord's past due water bill and by refusing future water service to tenants willing and able to pay for such service because the tenant declines to assume the landlord's liability for all unpaid water bills. In their motion for partial summary judgment, plaintiffs seek declaratory and injunctive relief under Counts I and III of their complaint. Plaintiffs seek to have this Court declare unconstitutional and enjoin the operation of Section 19-1606(2)(c) of the Philadelphia Code of General Ordinances, as applied by the defendants, which ordinance authorizes the city to terminate water service to a premises if the water bill is one year delinquent and the delinquent owner has been given ten days' notice of the impending termination. Plaintiffs also seek a declaratory judgment that the defendants' policy of terminating water service to tenants because of a delinquency in the payment of a bill by a third party violates the due process and equal protection of the laws under the Fourteenth Amendment. Jurisdiction is properly invoked pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(3) and (4). The declaratory relief sought by the plaintiffs is authorized by 28 U.S.C. § 2201 and § 2202.

 This action was filed on October 23, 1973. The plaintiffs sought a Temporary Restraining Order in connection with the termination of water service to the plaintiffs Johnnie Mae Koger and Louis Steinbrecker. Pursuant to an agreement of counsel, the water service to these two named plaintiffs was maintained and the motion for a Temporary Restraining Order became moot. Settlement discussions began almost immediately, with all parties expecting that a satisfactory settlement could be reached. On December 4, 1973, the defendants filed a motion to dismiss. However, extensive settlement negotiations were conducted and on September 23, 1974, the Court entered an Order pursuant to Local Rule 23(b) dismissing the case pursuant to the reported agreement of the parties. The reported settlement was never finalized and on March 17, 1975, the Court held a hearing on the defendant's motion to dismiss, which motion was denied on March 20, 1975. On April 18, 1975, the Court held a hearing on the plaintiff's motion for partial summary judgment. The parties again entered into settlement discussions and the matter appeared close to settlement. However, no settlement was reached and the resolution of plaintiffs' motion is now necessary.

 Motion for Class Certification.

 The plaintiffs have made a timely motion pursuant to Rule 23(c)(1) of the Federal Rules of Civil Procedure to certify this case as a class action pursuant to Rules 23(a) and 23(b)(2). The plaintiffs seek to represent all those individuals in the City of Philadelphia who have had their water service terminated, or are threatened with termination, without being afforded adequate due process. Additionally, the plaintiffs seek to represent two subclasses consisting of (1) all customers of the City of Philadelphia, Department of Water, who have contracted for water service and have had their water service terminated or are threatened with termination without adequate due process, and (2) those whose water service has been terminated or denied to their residence because of delinquent water bills owed by the owner of the premises.

 Rule 23(a) sets forth certain prerequisites to the maintenance of a class action as follows:

 
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (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.

 We find, and the defendants do not contest, that the numerosity requirement of 23(a)(1) is met in this case. Further we find that there are questions of law or fact common to all members of the class within the meaning of 23(a)(2). The defendants contend, however, that the claims of the named plaintiffs are not typical of the claims of the class and for this reason, the representative parties will not fairly and adequately protect the interests of the class and therefore the plaintiffs have failed to meet the requirements of Rule 23(a)(3) and (4). In support of their position that the claims of the proposed class representatives are "antagonistic" rather than typical of those of the class members, the defendants cite Ihrke v. Northern States Power Company, 459 F.2d 566 (8th Cir.) rev'd on grounds of mootness, 409 U.S. 815, 93 S. Ct. 66, 34 L. Ed. 2d 72 (1972). In Ihrke, the plaintiffs sought an order declaring that the rules and regulations of the utility were unconstitutional in that they permitted termination of utility service without adequate prior notice and hearing. The Court held that the trial court had not erred in refusing to allow the lawsuit to be maintained as a class action by stating:

 
It is possible that all such persons who are actual subscribers would share the desire of the Ihrkes for a change in the rules and regulations which would require adequate notice prior to termination of their utility service. But it is highly unlikely that the claim of the Ihrkes that a hearing should be required after notice and prior to termination, is typical of the claims of the class. It is likely that some customer of Northern would feel that the additional expense of such procedure, if it is indeed required, could conceivably result in a rate increase to all customers, and this certainly would not be considered desirable by all the subscribers of Northern. 459 F.2d at 572-73. *fn1"

 This reasoning has not, however, been followed by the majority of courts which have allowed utility termination cases to be maintained as class actions. Davis v. Weir, 497 F.2d 139, 146-47 (5th Cir. 1974); Palmer v. Columbia Gas Company, 342 F. Supp. 241 (N.D. Ohio 1972) aff'd 479 F.2d 153 (4th Cir. 1973); Limuel v. Southern Union Gas Co., 378 F. Supp. 964 (W.D. Texas 1974); Lamb v. Hamblin, 57 F.R.D. 58 (D. Minn. 1972); Stanford v. Gas Service Company, 346 F. Supp. 717 (D. Kansas 1972). In Cottrell v. Virginia Electric & Power Co., 62 F.R.D. 516, 520 (E.D. Va. 1974), a suit alleging that the termination of electrical service without adequate notice and a prior evidentiary hearing violated the plaintiff's due process rights under the Fourteenth Amendment, it was stated that:

 
There are diverse issues of fact in all class actions. The individual members of a class will invariably reach an adversary posture with the defendant in different ways. But Rule 23(a)(3) does not require that the factual background of the named plaintiff's case be identical with that of other members of the class, but that the disputed issue occupy essentially the same degree of centrality to the named plaintiffs' claim as to that of other members of their purported class. The Cottrells allege they were denied an opportunity for a hearing prior to termination and that such denial is unconstitutional. The sole relevant factual assertion is not only typical of the members of the purported class, it defines them. And for each the simple legal claim deriving from that fact is the same. The Cottrells' claim, for purposes of this suit, is not only typical of, but identical to the claims of the purported class.
 
Finally, in this regard, "'Typicalness' is not a subjective test, authorizing a judge to dismiss a class action based on a substantial legal claim where he thinks some members of the class may prefer to leave the violation of their rights unremedied." But it was exactly this erroneous interpretation of the term that was applied in Ihrke v. Northern States Power Co. (Citations omitted).

 We therefore find that the fact that the class may contain individuals who are indifferent or even opposed to the class relief sought by the named plaintiffs does not mean that the claims of the named plaintiffs are not typical of those of the class or that they will not fairly and adequately protect the interests of the class. Wright, Federal Courts, 309 (2d ed. 1970). *fn2"

 The plaintiffs must, in addition to meeting the requirements of Rule 23(a), meet the test of Rule 23(b)(2) which reads:

 
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

 The named plaintiffs were aggrieved by and seek to invalidate the Department's refusal to provide adequate notice and a hearing before their water service is terminated. The defendants have displayed a similar unwillingness to act with respect to all users of their water service. Therefore, common to all class members is the defendant's refusal to implement adequate due process procedures before their water service is terminated. Although the individual circumstances of each situation may vary, the defendants' refusal to provide sufficient due process procedures is the same in every instance. We, therefore, find that the requirement of Rule 23(b)(2) has been satisfied.

 Finally, defendants argue that the proposed class is overly broad. We find this contention to be without merit. The plaintiffs' class is defined by the issue raised, i.e., that the defendants' refusal to provide water users adequate due process procedures prior to termination of water service and the denial of water service to tenants because of delinquent water bills owed by the owner of the premises is a denial of due process under the Fourteenth Amendment. We will therefore certify this action as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. We have determined that we will certify the class as consisting of all users of water in the City of Philadelphia who have had their water service terminated or are threatened with such termination without adequate due process procedures. Finally, because of the issue raised by the plaintiffs in Count III of the complaint and because of the somewhat different circumstances presented in the case of tenants who are denied water service to their residence because of delinquent water bills owed by the owner of the premises, we will certify them as a subclass.

 Procedural Due Process.

 In support of their motion for partial summary judgment, the plaintiffs have submitted the affidavits of the plaintiffs Louis Steinbrecker and Johnnie Mae Koger together with the depositions of Kenneth Carlin, the assistant revenue commissioner for the City of Philadelphia, Joseph F. McCrossen, Linda Ruffin and Ann Elizabeth Miller, employees of the Department of Collections of the City of Philadelphia. The plaintiffs have also submitted as facts allegations of plaintiffs Anita Jackson, Arnelle Douglas and Wanda Harrison, which factual allegations have been admitted by the defendants. In support of their opposition to the plaintiffs' motion, the defendants have submitted the affidavit of Kenneth Carlin.

 In a motion for summary judgment, all doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. First Pa. B. & T. Co. v. United States Life Ins. Co., 421 F.2d 959, 962 (3d Cir. 1969). As stated in 6 ...


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