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June 29, 1976

Connie D. KILFOYLE et al.
Seymore G. HEYISON, Director of the Bureau of Traffic Safety and Jacob G. Kassab, Secretary of the Pennsylvania Department of Transportation

The opinion of the court was delivered by: KNOX

This case is presently before a statutory three-judge court convened pursuant to 28 U.S.C. §§ 2281 and 2284. Once more we are required to consider the due process nuances of Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971). References to the flexible concepts of due process of law contained therein as applied to varying situations appear in Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975) (suspension of a student in the public schools) and Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (termination of social security disability benefit payment).

 The facts are relatively simple and are not in dispute the same having been agreed to in a stipulation accompanying the parties' joint motion for summary and declaratory judgment, filed January 15, 1976. From this it appears that the plaintiffs (both original and intervening plaintiffs) together with the class they purport to represent were all uninsured motor vehicle operators who were involved in motor vehicle accidents. Since it appeared that these operators were uninsured, the Pennsylvania Department of Transportation, Bureau of Traffic Safety instituted proceedings for suspension of their operators' licenses pursuant to the provisions of Section 1404 of the Pennsylvania Vehicle Code (Act April 29, 1959 P.L. 58 as last amended by Act of October 12, 1973 No. 82) 75 Purdon's PS 1404. *fn1"

 After various internal procedures, the department (defendant Heyison is Director of the Bureau of Traffic Safety in the Pennsylvania Department of Transportation (Penndot)) forwarded to the operators a letter known as Form TS 229 which is attached to the stipulation and marked Exhibit E notifying the operator in question of the proposed suspension of his license unless a deposit was made.

 Pursuant to the instructions on the form the plaintiffs then requested departmental hearings on the matter.

 It appears at this hearing before an examiner in some cases the plaintiff is not permitted to examine the file in the possession of the hearing examiner. In other cases plaintiffs were permitted to examine the file. The examiner after examining the plaintiff then may or may not hear adverse parties who need not be present. The examiner then reviews the accident reports and police reports and licensee's driving records in the file and prepares a report by use of a rubber stamp which states: "I believe there is a reasonable possibility of a judgment arising as a result of this accident." There is no rubber stamp for a contrary finding. At some of the hearings, plaintiffs are not permitted to be in the room if adverse parties or witnesses are present nor are they or their attorneys permitted to ask questions of other parties or witnesses and of course have no chance to cross examine other parties or witnesses or the police who do not appear but whose reports are considered by the examiner.

 After filing of the report by the examiner, the plaintiffs were then notified that their licenses were to be suspended. Claiming a denial of due process of law and equal protection of the laws the original plaintiff Kilfoyle then filed suit in this court claiming that Section 1404, the basis for the suspension was unconstitutional. The suit asked for injunctive and declaratory relief under 42 U.S.C. §§ 1983 and 1985(3) and 28 U.S.C. §§ 2201 and 2202. Jurisdiction was averred to exist under 28 U.S.C. § 1343(3) and (4). A three-judge court was duly constituted on June 10, 1975, and thereafter following the usual pretrial procedures and filing of complete briefs by the parties the matter was argued on March 19, 1976.

 At the argument before the three-judge court it became apparent that one of the problems concerning the procedures before the Bureau of Traffic Safety was that there were no rules and regulations governing the conduct of hearings by the examiners and if such regulations were adopted they might easily take care of the due process arguments made in this case. For this reason, the court entered a preliminary opinion dated April 12, 1976, in which no final decision was made but jurisdiction was retained to permit the Department Bureau of Traffic Safety "to promulgate specific regulations governing the administrative hearing procedure utilized by the Bureau in Section 1404 suspension cases." It was indicated in the partial opinion that 1404 on its face and as applied according to the stipulation appeared to be constitutionally defective. The court stated "we are confident that such regulations carefully and conscientiously drawn with due regard for constitutional requirements will solve the problems which form the basis of the complaint". It was stated that: "We will require in addition that the defendants promulgate regulations providing clear objective criteria to guide the Bureau's evaluation unit in deciding whether to initiate the motorist". The specific details required for such regulations were also set forth.

 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."

 The provisions of 75 PS 1404 heretofore set forth in full make no provision whatsoever for a hearing prior to suspension of an operator's license or operator's privileges. They merely provide for a determination by the secretary that a person is subject to the act and the secretary then determines the amount of security to be deposited and upon failure to do so, notice of suspension is sent out under 1404(b).

 The statute in question is substantially the same as the Georgia statute considered by the United States Supreme Court in Bell v. Burson, supra. It is noted that this is a "fault" statute. It does not apply in case the operator has been released from liability or has been finally adjudicated not to be liable and under 75 PS 1407 the license is to be restored if during the period of a year no action for damages has been instituted or there has been a final adjudication of non-liability. In Bell v. Burson, supra, it was held that under such a statute there must be an inquiry into whether there is a reasonable possibility of an adverse judgment and the amount required for security. Such inquiry it was held need not take the form of full adjudication but suspension was proper only where there was a reasonable possibility that fault could be shown and a judgment entered. Therefore a state statute which does not provide for inquiry into fault under such circumstances is unconstitutional.

 The facts disclosed in Bell v. Burson where a five-year old minor rode her bicycle into the side of a minister's automobile are typical of cases where if the statute is applied literally the license would be suspended notwithstanding that it would seem reasonably clear that the driver was not at fault, although of course as in other situations in the operation of motor vehicles other factors may indicate fault. In the Georgia case, we learned from the Supreme Court opinion that the only matters considered by the director in determining whether there should be a pre-judgment suspension was whether the petitioner was involved in the accident, whether he has complied with the provisions of the liability law or does he come with any of the exceptions provided by law.

 The court recognized that, "If the statute barred the issuance to licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment", but the court then went on to say (402 U.S. p. 539, 91 S. Ct. at p. 1589):

"Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment."

 In other words whether the license to operate a motor vehicle is considered a right or a privilege once it is issued some form of due process hearing is necessary before the same can be suspended or revoked. The court pointed out that the Georgia statute, as in the case of the Pennsylvania statute, was not a no-fault scheme. The court held that in such a situation the state must provide a forum for the determination of the question "whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident. We deem it inappropriate in this case to do more than lay down this requirement." (402 U.S. p. 542, 91 S. Ct. at p. 1591.) As noted, the court specifically stated that it was not dealing with a no-fault scheme of state regulation. (As to Pennsylvania's present no-fault statute the same will be discussed hereafter.) The court also stated that equal protection had not been raised in the case, (see Footnote No. 4, page 541, 402 U.S. 535, 91 S. Ct. 1586, 1590, 29 L. Ed. 2d 90) and that procedures adequate to determine a welfare claim may not suffice to try a felony charge. The court then went on to say:

 In the preliminary opinion of April 12, 1976, we stated:

"On its face, Section 1404, however, provides no hearing prior to suspension of privileges. Section 1401, however, provides that any person aggrieved by action under Sections 1403 and 1411 may petition in the court of common pleas for a trial de novo. Section 1401 does not provide for a stay of the suspension proceedings pending determination of the petition but the Bureau of Traffic Safety has stipulated to the availability of such a stay. On November 20, 1974, in the case of Ortiz v. Kassab, Civ. No. 70-478 (E.D. Pa.) (unreported), the Bureau stipulated to the following: (1) the effective date of all suspensions issued under Section 1404 would be no less than 35 days after the date of mailing of notice to the licensee; (2) each suspension notice would be conspicuously marked to the effect that the licensee has the right to appeal the suspension pursuant to Section 1401 within 30 days of receipt of the notice; and (3) if the licensee files a timely appeal, and notifies the Bureau of the appeal, the appeal shall act as a supersedeas and the Bureau will not suspend the license until final disposition of the appeal. (Parties' Stipulation para. 17).
"Defendants argue that Bell v. Burson is satisfied by the combination of the availability of a de novo judicial proceeding and the Bureau's stipulation concerning the supersedeas effect of a timely appeal. This argument proves too much. The brute fact is that suspensions under Section 1404 are determined administratively: of approximately 56,000 Section 1404 proceedings in an eight month period, 179 persons petitioned for trial de novo in court. (Parties' stipulation paras. 4, 19). We have no indication that defendants intend to dismantle the administrative machinery for handling Section 1404 suspensions. Nor do we have any empirical data on the effect that such a dismantling would have on the caseloads in the state courts. Under these circumstances, we see no reason why the administrative procedure, utilized in the vast majority of cases, ought to be immunized from constitutional inquiry."

 With respect to plaintiff's claims of unconstitutional interference with travel and denial of equal protection of the laws in these procedures, we determine that the same are foreclosed by the action of the Supreme Court in affirming Young v. Cobb on January 13, 1975, 419 U.S. 1098, 95 S. Ct. 768, 42 L. Ed. 2d 795. In this case the decision of a three-judge court in the Southern District of Florida was upheld. Young v. Cobb, Case No. 72-2064 Civ. JE (S.D.Fla. 1974). Such determination is binding upon us. McCarthy v. Phila Civil Service Commission, 424 U.S. 645, 96 S. Ct. 1154, 47 L. Ed. 2d 366 (March 22, 1976).

 III. Deficiencies In The Present Pennsylvania Procedures.

 There is no doubt that Bell v. Burson, supra, does not demand the full panoply of a due process adversary hearing such as is required for entry of a formal judgment in court or a conviction in a criminal case and it is clearly held that procedural due process will be satisfied by an inquiry limited to the determination "whether there is a reasonable possibility of judgments in the amounts claimed being rendered against the licensee". We thus have the ...

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