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BEATRICE FINBERG v. JOSEPH A. SULLIVAN (10/27/80)

decided: October 27, 1980.

BEATRICE FINBERG, INDIV. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, BEVERLY DEMCHER, JOHN DZUBAK, PATRICIA DZUBAK, INDIV. AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v.
JOSEPH A. SULLIVAN, INDIV. AND IN HIS CAPACITY AS SHERIFF, PHILA. COUNTY, AND AMERICO V. CORTESE, INDIV. AND IN HIS CAPACITY AS PROTHONOTARY, COURT OF COMMON PLEAS, PHILA. COUNTY, AND STERLING CONSUMER DISCOUNT COMPANY, A CORPORATION BEATRICE FINBERG, ON BEHALF OF HERSELF AND OTHERS SIMILARY SITUATED, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-4166)

Before Seitz, Chief Judge, and Aldisert,*fn* Adams, Gibbons, Rosenn, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.

Author: Adams

Opinion SUR DENIAL OF DEFENDANTS' MOTION FOR VACATION OF JUDGMENT

In an opinion filed October 27, 1980, 634 F.2d 50, this Court, sitting en banc, held that Pennsylvania's post-judgment garnishment procedures violated the due process clause of the Federal Constitution in two respects. First, the state procedures failed to provide a prompt post-seizure hearing at which claims of exemption could be adjudicated, and second, the state scheme did not require that the judgment debtor be informed of the existence of or procedure for claiming exemptions under state and federal law. We also held that the Pennsylvania rules violated the Supremacy Clause because they provided a judgment creditor with a means of circumventing the Social Security Act's exemption of benefits from attachment or garnishment. In addition to these rulings on the substantive issues in the case, we vacated the district court's denial of certification for the class of all judgment debtors who are subject to having personalty garnished in Pennsylvania and who have legal or equitable defenses to the execution, 461 F. Supp. 253 (D.C.).

Because our opinion invalidated provisions of state law, the defendants the sheriff and prothonotary of Philadelphia County had a right to appeal to the United States Supreme Court. See 28 U.S.C. ยง 1254(2). Initially indicating that they would follow this course, the defendants filed a notice of appeal to the Supreme Court. The defendants also moved this Court to stay its mandate, which ordinarily issues twenty-one days after the entry of judgment, see Fed. R. App. P. 41(a), in order that they could proceed in the United States Supreme Court before the directive issued that would strike down the invalid rules. Acting on this motion, and on others filed subsequently, this Court has not yet issued its mandate. The defendants, however, have abandoned their opportunity for Supreme Court review,*fn1 thereby removing the predicate for the stays of mandate that have issued. Nevertheless, the defendants now urge that the mandate should be stayed and the opinion of the Court withdrawn in light of action recently taken by the Pennsylvania Supreme Court.

I.

Although it has never been a party to the present dispute, the Supreme Court of Pennsylvania, following issuance of this Court's opinion, promptly directed its Civil Procedural Rules Committee to prepare amendments to the state post-judgment garnishment procedure in order to bring it into compliance with the constitutional requirements of due process. On March 16, 1981, the State Supreme Court promulgated amended rules which, the defendants maintain, provide the constitutionally-required prompt hearing and notice of exemptions. Because the state has amended its rules, the defendants urge that it would be "superfluous" to allow the case to be remanded to the district court for possible issuance of declaratory relief. They contend that there is no longer a live controversy and that the proper course is for this Court to vacate the judgment entered on October 27, 1980, to withdraw its opinion, and to direct the district court to dismiss the case as moot.

In arguing for this conclusion, the defendants refer to various cases in which an appellate court vacated a lower court's judgment because the controversy became moot before the appellate tribunal could render a decision on the merits. This disposition has long been an element of Supreme Court practice,*fn2 although the Court retains discretion simply to dismiss the appeal in a moot case and to allow the lower court judgment to stand.*fn3 A similar discretion has not been accorded the federal courts of appeals, however. In Great Western Sugar Co. v. Nelson, 442 U.S. 92, 99 S. Ct. 2149, 60 L. Ed. 2d 735 (1979), the Tenth Circuit had dismissed the appeal from the district court on grounds of mootness, but had allowed the district court judgment to stand. The Supreme Court, however, disapproved this disposition,*fn4 reaffirming the teaching of Duke Power Co. v. Greenwood County, 299 U.S. 259, 267, 57 S. Ct. 202, 205, 81 L. Ed. 178 (1936), that " "(w)here it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss.' " 442 U.S. at 93, 99 S. Ct. at 2149 (emphasis in original). Underlying these principles is the theory that removal of the lower court judgment "clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance." United States v. Munsingwear, 340 U.S. 36, 40, 71 S. Ct. 104, 107, 95 L. Ed. 36 (1950).

Had the defendants here pursued their appeal of right to the Supreme Court, and had they convinced that Court that the changes in the Pennsylvania postjudgment garnishment procedures make the case moot, then the Supreme Court may well have exercised its discretion to vacate this Court's judgment of October 27, 1980, and remanded with directions to dismiss. The defendants urge that this Court, which retains control over the appeal until its mandate is issued,*fn5 should dispose of the case in the way that the Supreme Court would if the appeal were before it.

The fundamental problem with this recommendation is that it begs the central question on which the defendants' motion turns namely, whether the appeal is now moot.*fn6 In contrast to Munsingwear and Great Western Sugar, in which a government action*fn7 or the activities of the litigants*fn8 left no question concerning mootness, it is far from clear that Mrs. Finberg's controversy is no longer "live." In County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979), the Supreme Court articulated a two-pronged test for mootness. A case may become moot if (1) the alleged violation has ceased, and there is no reasonable expectation that it will recur,*fn9 and (2) interim relief or events have "completely and irrevocably eradicated the effects of the alleged violation." The defendants maintain that the Pennsylvania Supreme Court's reform of the state garnishment rules undermines Mrs. Finberg's lawsuit. In effect, they argue that these amendments satisfy both branches of the Davis test: they remove the asserted constitutional violations, and provide assurance that any violations will not recur.

Pointing to a change in the law, however, does not demonstrate that the constitutional violations of which Mrs. Finberg complains have ceased and will never recur. The relevant issue with respect to this branch of the mootness test is whether the principle contended for by Mrs. Finberg the right of all post-judgment debtors to be heard promptly and to be notified of legal and equitable defenses is satisfied by the new rules. If it is, the case is moot; if not, the challenging party's interest is not destroyed by the amendment.*fn10

Defendants have not persuaded us that the new rules satisfy all of the principles for which Mrs. Finberg contends. More specifically, our opinion of October 27, 1980, vacated the district court's denial of class certification and remanded on this point. Only after the district court determines whether or not to certify the class can it be ascertained whether the amended Pennsylvania rules adequately safeguard the due process rights of all parties to this controversy.*fn11 Moreover, even if the district court declines to certify the class, the question whether the new rules will secure a judgment creditor like Mrs. Finberg a prompt hearing on exemption claims may well turn on additional evidence as to how the new rules operate in practice. The uncertainty, on the present record, over whether the new rules adequately safeguard creditors in Mrs. Finberg's position distinguishes the case at bar from Hall v. Beals, 396 U.S. 45, 90 S. Ct. 200, 24 L. Ed. 2d 214 (1969), where the Supreme Court found moot a challenge to Colorado's six-month residency requirement for eligibility to vote. Before the Supreme Court decided the case, Colorado had shortened the residency requirement from six to two months. The Court determined the case to be moot because, inter alia, plaintiffs would have been eligible to vote had the new standard been in effect at the time of the election from which they were precluded.*fn12 By contrast, we cannot say with assurance that the new Pennsylvania procedures no longer "adversely affect" Mrs. Finberg's interests, see id. at 48, 90 S. Ct. at 201. And it is well-settled that a change in the law does not moot a case if the plaintiff's rights would have been violated under the new law. See Brockington v. Rhodes, 396 U.S. 41, 43, 90 S. Ct. 206, 207, 24 L. Ed. 2d 209 (1969) (decided same day as Hall v. Beals ). Absent an inquiry into the operation of the new rules, we are reluctant to hold that the new Pennsylvania garnishment procedures fully satisfy the standard of due process as calculated in our opinion of October 27, 1980. This factual inquiry is properly addressed to the district court.

In light of the above considerations, we cannot agree with the defendants that Pennsylvania's amendments to its ...


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