APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 76-41)
Before SEITZ, Chief Judge, GIBBONS and WEIS, Circuit Judges
In this appeal from an order granting summary judgment to the defendants, we consider, hopefully for the last time, the powers of a single district judge to pass upon a constitutional challenge to a state statute without convening a three-judge district court. Appellant contends that Sec. 1413 of the Pennsylvania Vehicle Code, Pa. Stat. Ann. title 75, Sec. 1413 (Purdon),*fn1 violates procedural due process by authorizing the suspension of her driver's license without affording her a hearing. In the District Court below, a single judge held that appellant's constitutional argument was clearly foreclosed by prior decisions of the United States Supreme Court and thus was so insubstantial as not to require the convening of a three-judge district court pursuant to 28 U.S.C. Sec. 2281. That section of the Judicial Code has now been repealed by the Act of August 12, 1976, Pub. L. 94-381, Sec. 1, 90 Stat. 1119. But since the instant suit was commenced in April of 1976, prior to the effective date of Pub. L. 94-381, the old Sec. 2281 still controls.*fn2 We conclude that the District Court erred in holding that appellant's constitutional challenge to the Pennsylvania statute is foreclosed by previous Supreme Court decisions and, consequently, we reverse the single judge order granting summary judgment to the defendants.
The appellant is Kathleen L. Piercy. In November, 1973, her husband, while driving their jointly owned automobile, was involved in an automobile accident. Mrs. Piercy alleges that she was not present in the car at the time of the accident and that she was not exercising any authority or control over her husband's operation of the vehicle. The Piercys apparently were not insured. Subsequent to the accident, Mrs. Piercy and her husband signed a $228.54 note payable in weekly installments of $25 to the Aetna Casualty and Surety Company (Aetna) in satisfaction of a subrogation claim. The note contained a cognovit clause providing for confession of judgment if Mrs. Piercy and her husband defaulted on any of the installments. The note contained no admission of liability on Mrs. Piercy's part, but merely recited:
This note is given for the auto accident on 11/6/74 at Route 197 near Meadville, Pa.
Mrs. Piercy alleges that she signed the note because Aetna threatened her with a license suspension pursuant to Sec. 1404 of the Pennsylvania Vehicle Code, Pa. Stat. Ann. tit. 75, Sec. 1404 (Purdon).*fn3 When she and her husband defaulted on their installment payments, Aetna confessed judgment against both of them in the Court of Common Pleas of Allegheny County. The Piercys reside in Crawford County, and they did not receive notice either of the proceedings in Allegheny County or of the fact that a judgment had been confessed against them. After the judgment had remained unsatisfied for 60 days, the Prothonotary of Allegheny County forwarded a certified copy of it to the defendants, who are officials within the Pennsylvania Department of Transportation. Acting pursuant to Sec. 1413(a) of the Pennsylvania Vehicle Code, the defendants notified Mrs. Piercy of the summary suspension of her motor vehicle operators license and vehicle registration until she should satisfy the judgment. Mrs. Piercy promptly filed a class action suit on her own behalf and as a representative of all persons being subjected to Sec. 1413(a) driver's license suspensions predicated upon judgments obtained by confession.
The District Court declined to convene a three-judge court to consider the constitutionality of the application of Sec. 1413(a) to Mrs. Piercy. The district judge recognized that under the standard articulated in Goosby v. Osser, 409 U.S. 512, 518, 35 L. Ed. 2d 36, 93 S. Ct. 854 (1973), he should convene a three-judge court unless the unsoundness of the plaintiff's claim "so clearly results from the previous decisions of the [the Supreme Court] as to foreclose the subject and leave no room for inference that the question sought to be raised can be the subject of controversy." In order to understand the District Court's holding, we must first explore the nature of Mrs. Piercy's challenge to the Pennsylvania statute.
In Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971), the plaintiff challenged Georgia's Motor Vehicle Safety Responsibility Act, which provided that the driver's license of an uninsured motorist involved in an accident would be suspended unless that motorist could post security for the amount of damages claimed by a party to the accident. The pre-suspension procedures under the Georgia statute excluded any consideration of fault or responsibility for the accident. The Court observed that once driver's licenses are issued, their continued possession might be essential in the pursuit of a livelihood. 402 U.S. at 539. Consequently, the Court held that licenses could not be taken away without some procedural safeguards required by the due process clause of the fourteenth amendment. The Court stated:
We hold, then, that under Georgia's present statutory scheme, before the State may deprive petitioner of his driver's license and vehicle registration it 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.
Relying on Bell v. Burson, a three-judge district court in Kilfoyle v. Heyison, 417 F. Supp. 239 (W.D. Pa. 1976), struck down Sec. 1404 of the Pennsylvania Vehicle Code. Section 1404 authorized the suspension of driver's licenses of persons involved in automobile accidents unless those persons made deposits to secure the payment of any judgments which might be rendered against them due to the accidents. The three-judge district court held this section unconstitutional as a denial of procedural due process since it did not provide for an effective pre-termination inquiry into the question of fault or liability. The court rejected the state's argument that due process was satisfied by the availability of de novo judicial review of the termination.The court noted that of the approximately 56,000 suspension proceedings under the statute in an eight-month period, only 179 were followed by petitions for de novo review. The court assumed that many of the remaining individuals were deterred from exercising their right of de novo review by the need for paying a filing fee and for obtaining counsel. 417 F. Supp. at 247.
The District Court in this case distinguished the Kilfoyle v. Heyison holding that Sec. 1404 was unconstitutional on the ground that Sec. 1404 dealt with prejudgment suspensions, while Sec. 1413, the statute challenged here, dealt with post-judgment suspensions. The District Court reasoned that the due process defect in Bell v. Burson was the absence of a pre-termination determination of the likelihood of liability. Here post-judgment terminations were supported by reliable determinations of such liability in the judgments themselves.*fn4
That reasoning, however, misses the thrust of Mrs. Piercy's claim. She contends that a judgment by confession on a cognovit note obtained under the coercion of the unconstitutional Sec. 1404 does not afford the indicia of reliability required by Bell v. Burson. That contention compels us to examine the Supreme Court case law on the reliability of judgments resulting from cognovit notes. The governing cases are D. H. Overmyer Co. v. Frick Co., 405 U.S. ...