The opinion of the court was delivered by: Joyner, C. J.
Before this Court are Plaintiffs' Motion for Class Certification (Doc. No. 33), Defendant Philadelphia Parking Authority's Response and objections thereto (Doc. No. 36), Plaintiffs' Reply in further support thereof (Doc. No. 37), and Defendant's Sur-Reply (Doc. No. 38). For the reasons set forth in this Memorandum, the Court will deny the Plaintiffs' Motion without prejudice.
This is a case about the role of the Philadelphia Parking Authority ("PPA" or "Defendant") in the execution of the City of Philadelphia's Live Stop policy. The Plaintiffs' factual allegations and the background of Live Stop and the PPA's actions have been fully set forth in the Court's prior Memorandum and Order on the PPA's Motion to Dismiss. (Opin. of Oct. 2, 2012, Doc. No. 29). The Plaintiffs put forth four individuals as class representatives and set forth factual allegations to highlight their claims. Briefly, each of the Plaintiffs were stopped by members of the Philadelphia Police Department ("PPD") due to alleged violations of Live Stop, including expired vehicle registrations and driving without a proper licence. Plaintiff Danielle Sheller was stopped for driving with an expired vehicle registration, which was renewed during the incident and prior to the towing of her vehicle. Plaintiff Earl Johnson was stopped when he was driving to work with a limited licence that allowed him to drive to and from work only, while at all other times his license was suspended. His car was towed even though he was permitted to drive for the limited purpose of travel to and from work. His citation was dismissed in Traffic Court, but he nevertheless had to pay for towing and storage of his vehicle. Plaintiffs Brian Walsh and Nicolette Wilson were both stopped for expired registrations, and their vehicles were towed and impounded.
Plaintiffs Danielle and Stephen Sheller initially filed a Complaint on March 30, 2011 in the Philadelphia County Court of Common Pleas against the City of Philadelphia, the Philadelphia Police Department ("PPD"), officers of the PPD, Police Commissioner Charles H. Ramsey, and the PPA. The City and PPD Defendants filed a Notice of Removal on April 5, 2011. Subsequently, Plaintiffs were granted permission by this Court to file an Amended Complaint. The Amended Complaint removed Mr. Sheller and added three plaintiffs as class representatives. Due to an agreement between the City, the PPD Defendants, and the Plaintiffs, the City and PPD Defendants are no longer parties to this action, leaving only the PPA.
Plaintiffs bring this action pursuant to 42 U.S.C. § 1983. Their Complaint alleges that Defendant violated state and federal due process protections with the Live Stop policy, which describes the manner in which the PPD implements Pennsylvania Vehicle Code, 75 Pa.C.S. § 6309.2. The PPA filed a Motion to Dismiss on May 23, 2011, which the Court granted in part and denied in part on October 2, 2012, after the case was removed from a long period of civil suspense while the parties engaged in settlement negotiations. The Court dismissed a number of the Plaintiffs' claims. The only claim against the PPA that the Court did not dismiss was the Plaintiffs' claim that the PPA's towing of vehicles and imposition of towing and storage fees without adequate judicial recourse violates due process under the Pennsylvania and federal constitutions. (Opin. of Oct. 2, 2012, at 14-17, Doc. No. 29).
Plaintiffs have moved for class certification under Federal Rule of Civil Procedure 23 on November 9, 2012. (Pls.' Mot. for Class Cert., Doc. No. 33). The Plaintiffs propose three separate classes. The Plaintiffs propose certification under Rule 23(b)(2) for the following class:
All persons whose vehicles are seized under the Philadelphia "Live Stop" Program, who have secured proper registration or licensing before towing or storage by PPA, or who have paid towing and/or storage fees or costs to the Philadelphia Parking Authority, and who are later found not guilty of the "Live Stop" charges in proceedings in Philadelphia Traffic Court or the Court of Common Pleas, and who are not reimbursed for the towing and storage fees or costs as a result of the not guilty determination. (Pls.' Mot. for Class Cert., Doc. No. 33). The Plaintiffs also propose certification under Rule 23(b)(3) for two separate classes. The first is:
All persons whose vehicles were seized under the Philadelphia "Live Stop" Program on or after April 30, 2009, who have paid towing and/or storage fees or costs to the Philadelphia Parking Authority, who have been found not guilty of the "Live Stop" charges in Philadelphia Traffic Court or the Court of Common Pleas, and who have not received reimbursement of the towing and storage fees or costs following the not guilty determinations.
(Pls.' Mot. for Class Cert., Doc. No. 33). The second of the Rule 23(b)(3) classes is:
All persons whose vehicles were seized under the Philadelphia "Live Stop" Program on or after April 30, 2009, who had complied with registration and/or licensing requirements under Pennsylvania law prior to payment of towing and/or storage fees or costs to the Philadelphia Parking Authority, but who had no opportunity for an advance hearing to determine whether costs are due and owing and/or an opportunity to post of a bond pending a hearing in lieu of payment of towing and/or storage fees and costs. (Pls.' Mot. for Class Cert., Doc. No. 33). The Defendant responded in opposition on November 30, 2012 (Doc. No. 36), the Plaintiffs filed a reply on December 11, 2012 (Doc. No. 37), and the Defendant filed a sur-reply on January 15, 2013 (Doc. No. 38).
As this is a motion for class certification, this Court will accept as true the substantive allegations in the Complaint and will not inquire into the merits of the Plaintiffs' claims. Cullen v. Whitman Med. Corp., 188 F.R.D. 226, 228 (E.D. Pa. 1999); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178 (1974). Hence, the Court will focus exclusively on whether the Plaintiffs have met the burden of proving the requirements as set out in Fed. R. Civ. P. 23 to constitute a class. Eisen, 417 U.S. at 163.
Fed. R. Civ. P. 23(a) sets forth preliminary requirements that the plaintiff must prove; these requirements "are meant to assure both that class action treatment is necessary and efficient and that it is fair to the absentees under the particular circumstances." Baby Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1995). Rule 23(a) requires four initial elements to be sufficiently proven by the plaintiff in class action certification: numerosity, commonality, typicality and adequacy. Id. at 55-56. "If the Rule 23(a) requirements are met, the court must then find that the class fits within one of three categories of class actions set forth in Fed. R. Civ. P. 23(b). In re Cmty. Bank of N. Virginia, 418 F.3d 277, 302 (3d Cir. 2005). In this instance, the Plaintiffs seek certification under both Rule 23(b)(2) and Rule 23(b)(3).
The party seeking certification "bears the burden of establishing each element of Rule 23 by a preponderance of the evidence. Marcus v. BMW of N. Am., LLC, 687 F.3d 583, 591 (3d Cir. 2012). The Third Circuit has repeatedly emphasized that "'[a]ctual, not presumed[,] conformance' with Rule 23 is essential." Id. In deciding whether to certify a class, the court must "make whatever factual and legal inquires are necessary and must consider all relevant evidence and arguments presented by the parties." In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 307 (3d Cir. 2008).
Initially, the Court will take this opportunity to clear up some confusion the parties have shown over the Court's Memorandum and Order on the Defendant's Motion to Dismiss. In their briefings to the Court on this Motion for Class Certification, both parties have made assumptions about the Court's opinion that pervade their respective arguments.
The Plaintiffs seem to have assumed that the Court found conclusively that the PPA's procedures were deficient and decided which procedures were required to comply with due process. Instead, no evidence on the PPA's procedures were before the Court, and the Court merely ruled that the Plaintiffs had stated a claim. Without knowledge or proof of the precise procedures in place, the Court cannot say whether these procedures violate due process, or what process would cure such a violation. Any suggestions otherwise in the Court's opinion were merely digestions of case law or illustrations.
On the other hand, the Defendant appears to argue that the denial of their motion to dismiss on the due process claim was unwarranted and presents arguments, although no evidence, to try to convince the Court that the Plaintiffs' claims are meritless. Such arguments are not appropriate at this time, particularly because neither side has produced evidence with respect to the procedures involved. The Court cannot decide that the procedures that the PPA refers to, namely, recourse before the Bureau of Administrative Adjudication ("BAA"), is proper without evidence of these procedures ...