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VARNER v. KATHRYN T. BARD

December 3, 1985

ROBERT E. VARNER, Plaintiff
v.
KATHRYN T. BARD, JANE O. STOVER, and KATHERINE K. KOPP, Defendants



The opinion of the court was delivered by: HERMAN

 Plaintiff Varner, proceeding pro se in this § 1983 action, challenges the constitutionality of the procedures by which his wages were attached to satisfy an outstanding child support order. After this court twice directed plaintiff to file amended complaints, we then addressed and denied in part defendant's motion to dismiss and subsequent motion for judgment on the pleadings. The case is now before us on defendants' motion for summary judgment.

 Although plaintiff's complaint is not a model of clarity, we held in our April 24, 1985 opinion in this matter that Varner may have alleged a valid claim under 42 U.S.C. § 1983 concerning his procedural due process rights. The gravamen of his complaint appears to be that the attachment order was not properly issued by a court, and that he received neither notice of the order nor an opportunity to have a hearing prior to the entry of the order. The material facts of this case concerning which there is no dispute are drawn from the depositions submitted by the parties in support of their motion and are set forth below.

 I. FACTS

 The history of this case begins in January, 1975, when the York County Court of Common Pleas entered its first support order against Robert Varner. Varner failed to make regular payments to the Domestic Relations Office, as required by the order, accumulating arrears of $19,072.36 by June, 1981. On June 25, 1981, the ongoing support order was modified at a support hearing before a Domestic Relations Office hearing officer by consent of the parties. From that date on, Varner was directed to pay $25 per week in child support, and $5 per week on account of the arrearages. Varner signed the June 25, 1981 support order, along with his former wife. The order was then stamped with the signature of James E. Buckingham, the York County judge in charge of support matters. Neither Varner nor his former wife appealed this support order.

 Varner made payments pursuant to the June 25, 1981 order until September 5, 1981. After that date, the Domestic Relations Office received no further payments from Varner on his outstanding support obligation.

 In January, 1982, the Domestic Relations Office sent Varner a year-end statement of his account along with a flier indicating that wage attachments would be issued after an arrearage of thirty days had accumulated. The year-end statement was returned to the Domestic Relations Office because the post office box to which it was addressed had been closed. The Office re-sent the statement and flier to Varner's last known residence. This time it was not returned. Mr. Varner acknowledges the receipt of year-end statements, but does not remember if he received one for 1981 in particular.

 On December 20, 1982, the Domestic Relations Office sent an order to Mr. Varner's employer ordering the attachment of Varner's wages in the amount of $30.20 per week; $25 on the support order, $5 on the arrears, and $.20 service charge. On the same day, the Office sent a copy of the attachment order to Mr. Varner himself. The order was signed by Judge Buckingham by means of a signature stamp affixed to the order by the Domestic Relations Office staff. This procedure of stamping Judge Buckingham's signature to support and attachment orders was fully authorized by the Judge and pursuant to a long standing oral direction of the Judge.

 On receipt of the notice of attachment, Varner took no action to challenge the court's order, nor to obtain relief from the attachment, until the filing of this federal action in December, 1984.

 II. DISCUSSION

 A. The Attachment Order.

 The first issue we must address in determining the constitutionality of the attachment of Varner's wages is the validity of the attachment order itself. If the attachment order was not in fact issued by a court, as Varner alleges, then the attachment violates not only due process, but also the procedures outlined for attachments in the Pennsylvania Rules of Civil Procedure, Rule 1910.22(a).

 All parties agree that Judge Buckingham's signature was affixed to the order by the Domestic Relations Office using a rubber stamp. Judge Buckingham testified in his deposition that "I supplied the Domestic Relations Office with a stamp with my actual signature on it, which they use to sign orders for any wage attachments or any other ministerial order . . . the office has the authority to use my stamp to commence wage attachment proceedings." Buckingham Deposition at 8. These proceedings are initiated, according to Buckingham's direction to the Domestic Relations Office, when support payments became over 30 days in arrears. Buckingham has directed that proceedings be initiated in all cases, with no exceptions or exemptions; the Office has absolutely no discretion over whose wages will be attached and whose will not be.

 Although we have been pointed to no case or statutory authority that ratifies the arrangement worked out between Judge Buckingham and Domestic Relations, we believe that the procedures are legitimate and that the orders "signed" by Judge Buckingham are constitutionally and procedurally valid. It is within Judge Buckingham's power as a judge to direct the Office to perform certain ministerial tasks, as long as those tasks are truly ministerial, and as long as there is explicit direction to the Office concerning their duties and the parameters of their ...


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