The opinion of the court was delivered by: VANARTSDALEN
MEMORANDUM OPINION AND ORDER
According to the present record,
the plaintiff, Beatrice Finberg (Finberg), is a judgment debtor and the defendant, Sterling Consumer Discount Company (Sterling), a judgment creditor as a result of a judgment by default entered against Finberg and in favor of Sterling in the Court of Common Pleas, Philadelphia County, on October 25, 1977.
Sterling proceeded to execute against Finberg's personal property in order to satisfy its judgment by means of the garnishment procedures in question. Pursuant to Rule 3103(a), Sterling filed a praecipe for a writ of execution with Americo V. Cortese,
the prothonotary of the Court of Common Pleas, Philadelphia County (the prothonotary), naming Finberg and the Philadelphia National Bank (the garnishee). The writ was transmitted to the defendant Joseph A. Sullivan, Sheriff of Philadelphia County (the sheriff), in accordance with Rule 3103(e), and the sheriff, on November 3, 1977, made service of the writ upon the garnishee pursuant to Rules 3108 and 3111. On November 4, the garnishee forwarded a copy of the writ to Finberg, as required by Rule 3140(a), accompanied by a letter informing her that $ 550 of her funds on deposit with the garnishee were being placed in a suspense account "pending disposition of this matter." These communications were received by her on November 7. On November 18, 1977, plaintiff received a copy of the garnishee's response to Sterling's interrogatories, as required by Rule 3140(b).
Shortly thereafter, Finberg filed an action in state court seeking to release the garnished funds to her use. On December 8, 1977, by order of a state court judge, $ 300 of the garnished $ 550 was released to Finberg by the garnishee. The basis for this release was a joint recognition by the parties that under state law there existed a $ 300.00 exemption from garnishment for debtors such as Finberg.
Following certain pretrial discovery, Finberg and Sterling, the loan creditor, reached an agreement whereby the remainder of the funds still held by the garnishee would be released. On May 30, 1978, Finberg was notified by the garnishee that $ 226.50 was being restored to her use but that $ 23.50 was being retained as a service charge to cover the garnishee's expenses resulting from the garnishment. Thus, with the exception of the $ 23.50 service charge, all of the garnished funds have been returned to Finberg.
Plaintiffs, John and Patricia Dzubak (the Dzubaks), are also judgment debtors who allege that their bank account with the Philadelphia National Bank was garnished on April 19, 1978, pursuant to the garnishment provisions in question. However, as a result of a petition filed in state court, all of the Dzubaks' garnished funds were released to their use on April 27, 1978. It should also be noted that the Dzubaks have not alleged that any of the funds garnished are social security funds.
Plaintiff's amended complaint contains two counts. Count I alleges that the action of the state defendants in causing the summary and ex parte garnishment of plaintiffs' bank accounts violates the due process clause of the fourteenth amendment, in that no prior notice of the garnishment was given to the judgment debtors, nor was a prior hearing afforded on the issue of the debtors' possible defenses or exemptions to the garnishment. Alternatively, Count I asserts that even if due process does not require prior notice and a hearing, the garnishment procedures are nevertheless constitutionally frail because they do not provide for notice to the judgment debtor of the exemptions and legal or equitable defenses that may be raised, and because there is no absolute right to a prompt post-garnishment hearing.
Count II asserts that under federal law, 42 U.S.C. § 407, monies paid pursuant to the Social Security Act are exempt from levy or execution,
and therefore the garnishment procedures deprive judgment debtors like Finberg of their federal rights in violation of the supremacy clause of article VI of the Constitution.
In both the original and the amended complaint, the plaintiffs seek certification of a class composed of individuals situated similarly to the plaintiffs. See Part IV Infra.
The plaintiffs, on their own behalf and on behalf of the class they purport to represent, seek:
1. a declaratory judgment to the effect that the summary garnishment procedures in question are violative of the fourteenth amendment and unlawfully conflict with federal statutory law;
2. a money judgment against Sterling and in favor of plaintiff Finberg in the amount of $ 23.50; and
3. a reasonable attorney's fee.