refusing to promulgate the regulations requested by the court. In this letter in response to the court's partial opinion of April 12, 1976, the Department indicated it proposed to stand on its position without promulgating any regulations and defied the court to enter a decree so that the Commonwealth could take an appeal. A copy of the letter received from the attorney for the Commonwealth is attached to this opinion and shows on its face the cavalier attitude of the Commonwealth with respect to this case.
In the light of the foregoing the court will therefore proceed to adjudicate the matter on the merits. Several questions are presented:
I. Should a class action be allowed?
II. Is the statute facially defective?
III. Are the procedures by which the statute is administered violative of due process?
IV. Does a stipulation entered into in a similar case in the Eastern District Ortiz v. Kassab, 70-478 (W.D.Pa. November 20, 1974) (not a class action) satisfy the requirements of due process?
V. What relief should be granted?
I. Class Action.
In the partial opinion of April 12, 1976, the court stated that it had concluded that plaintiffs have satisfied the requirements for certification of a class. We have again reviewed the matter and find that the pre-requisites to a class action as set forth in Rule 23(a) are present. It appears the class is so numerous that joinder of all members as hereinafter described is impracticable. Ten persons have joined in intervening in this case seeking temporary restraining orders to protect their driving rights against claimed wrongful suspensions. From the statistics submitted in the stipulation it appears that there are thousands of others who have been subject to these proceedings throughout the state. It further appears that questions of law and fact common to the class exist in that they are all concerned with the constitutionality of the legislation in question and of the procedures pursued by the Bureau of Traffic Safety in carrying out the law. Typicality is present since it appears from the stipulation that all such persons have been treated similarly by the Bureau. It further appears that the representative parties will fully and adequately protect the interests of the class as has been demonstrated to the court by the zeal and ability shown by counsel by the plaintiffs in presenting the case.
The court further finds in addition to meeting the pre-requisites of subdivision (a) that a class action under 23(b)(2) is proper inasmuch as the defendants who oppose the class have acted or refused to act on grounds generally applicable to the class in that they have in general attempted to enforce this statute which will be demonstrated to be facially defective with procedures which do not accord with due process and from the forms submitted intend to pursue such course in the future. Therefore final injunctive relief or corresponding declaratory relief with respect to the class as a whole is proper.
We find that the test court route will not fit the circumstances of this case. Such test action has already been brought in Ortiz v. Kassab, infra. The procedures now being followed by the Bureau notwithstanding the warnings given in that case and the fact that the instant litigation has been pending since April 24, 1975, show that the same course of action which we hereby determine to be inadequate has been and is being pursued. The test action in Ortiz v. Kassab has not proved fruitful and therefore in order to protect the members of the class a full-fledged class action under Rule 23(b)(2) is determined to be necessary.
The description of the class to be certified is as follows:
"All Pennsylvania motor vehicle operators who received a letter from the Pennsylvania Bureau of Traffic Safety, known as Form TS 229, which initiated suspension proceedings under Section 1404 of the Pennsylvania Vehicle Code."