The appellant sought to have declared unconstitutional the application of Pennsylvania's postjudgment garnishment procedures to freeze her bank accounts pursuant to an attempt to garnish them. On cross-motions for summary judgment, the district court found the procedures valid and denied the requested declaratory relief.

The appellant, Mrs. Beatrice Finberg, is a 68-year-old widow whose sole source of income is social security retirement benefits. In May of 1977, Sterling Consumer Discount Co. (Sterling) sued her in Pennsylvania's Court of Common Pleas for Philadelphia County to enforce a debt. Mrs. Finberg's response to the suit was to write Sterling telling of her dependence on social security and offering monthly payments as a settlement. She never filed an answer to Sterling's complaint.

On October 25, 1977, Sterling obtained a default judgment and immediately moved to execute on it by initiating a garnishment of the checking and savings accounts that Mrs. Finberg maintained at Philadelphia National Bank (PNB). The two accounts held a total of $550, all of which she had received as social security benefits.

The initiation of the garnishment proceeded in accordance with Pennsylvania's rules. Sterling filed a praecipe for a writ of execution with the Prothonotary of Philadelphia County, Americo V. Cortese. Cortese issued a writ that named Mrs. Finberg as defendant and PNB as garnishee. He transmitted the writ to Joseph A. Sullivan, Sheriff of Philadelphia County, who served it on PNB. This service had the effect of enjoining the bank from paying out any money from the accounts. The next day, PNB mailed Mrs. Finberg a copy of the writ, and a letter informing her of the attachment of her accounts. See Pa.R.Civ.P. 3103, 3108(d), 3111, 3140(a).1

The money in these accounts was entirely exempt from attachment and garnishment. The Social Security Act provides an exemption for moneys paid as benefits. 42 U.S.C. § 407 (1976). See Philpott v. Essex County Welfare Board, 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973) (exemption protects benefits held in checking and savings accounts). In addition, Pennsylvania law grants a general $300 exemption to a class of debtors which includes Mrs. Finberg. Pa.Stat.Ann. tit. 12, § 2161 (Purdon 1967), revised and codified at 42 Pa.Cons.Stat.Ann. § 8123 (Purdon 1979).

However, Mrs. Finberg encountered some difficulties in obtaining a release of her bank accounts from attachment. Prior to the attachment, she received no notice of the garnishment action and had no opportunity to assert her exemption claims. After the attachment, no participant in the garnishment action informed her that her accounts might be exempt from garnishment or of the procedures available for obtaining a release of her exempt property. Pennsylvania law required none of these measures.

On November 18, 1977, Mrs. Finberg filed a petition in the Court of Common Pleas, under Pa.R.Civ.P. 3121(d), to set aside the writ of execution on grounds of the exemption. On December 8, twenty days after the petition was filed, a common pleas judge released $300 from the accounts pursuant to the Pennsylvania exemption. The judge kept the attachment in effect for the remaining $250 so that Sterling's attorney could take Mrs. Finberg's deposition to determine the basis of her claim of an exemption under the Social Security Act. See Pa.R.Civ.P. 209. This deposition was taken on April 11, 1978, and Sterling agreed to the release of the remaining money on that date. The Court of Common Pleas ordered the release of this money on April 25, over five months after the filing of the petition, and PNB released the money on May 30.

During the pendency of the state court garnishment proceeding, Mrs. Finberg initiated the present lawsuit in federal court to challenge the constitutionality of Pennsylvania's postjudgment garnishment procedures. Her complaint asserts causes of action under 42 U.S.C. § 1983 (1976) and names as defendants Sterling, Sheriff Joseph A. Sullivan, and Prothonotary Americo V. Cortese.

Following the release of most of her money, Mrs. Finberg amended her complaint to focus her constitutional challenge on the attachment and freezing of her bank accounts during the pendency of the garnishment action. Pa.R.Civ.P. 3111(b, c). The complaint asserted two grounds of constitutional invalidity. First, it alleged that the imposition of the freeze without sufficient procedural safeguards for exempt property was a violation of due process. Second, it alleged that the attachment of accounts containing social security benefits is inconsistent with the Social Security Act exemption and hence invalid under the supremacy clause of article six of the Constitution.2

For relief, the complaint prayed for declarations that Pennsylvania's postjudgment garnishment procedures are unconstitutional under the due process clause and the supremacy clause. On these claims, Mrs. Finberg sought relief for herself and for two classes of similarly situated plaintiffs. She made a timely motion for certification of these classes under Fed.R.Civ.P. 23(b)(2).

The defendants never answered the complaint but moved for summary judgment on all of the claims against them. Mrs. Finberg responded with her own motion for summary judgment. After considering these motions and the record that had been compiled, the district court entered an order disposing of all of the outstanding issues. Finberg v. Sullivan, 461 F.Supp. 253 (E.D.Pa.1978). The court found that Pennsylvania's postjudgment garnishment procedures contain sufficient protection for the judgment debtor to satisfy the due process clause and to avoid conflict with the Social Security Act exemption. Accordingly, it granted summary judgment for the defendants on the declaratory judgment claims. As for the motion for class certification, which had been pending for more than nine months, the court concluded that its denial of relief on the merits left no purpose for certification. It therefore denied the motion.

Mrs. Finberg filed the present appeal.3 She asserts errors in the denial on the merits of the declaratory judgment claims and in the denial of the class certification motion. Two of the defendants, the prothonotary and the sheriff, have appeared as appellees to support the district court's rulings. Sterling has not appeared as an appellee.

Because the district court's grants of summary judgment concluded its proceedings, we have jurisdiction to hear the appeal under 28 U.S.C. § 1291 (1976). In our deliberations, we have encountered two questions concerning the justiciability of the declaratory judgment claims against the prothonotary and the sheriff. The first is whether the prothonotary and the sheriff are properly named as defendants. The second is whether the controversy in this case has become moot.

A suggestion was made at oral argument that the prothonotary and the sheriff are not the proper state officials to name as defendants. Arguably, other state officials would have defended the constitutionality of the postjudgment garnishment procedures more vigorously. Our function, of course, is not to determine the most suitable defendants but to decide whether the complaint has named defendants who meet the prerequisites to adjudication in a federal court.

In Ex Parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 452, 52 L.Ed. 714 (1908), the seminal decision on suits to restrain the enforcement of laws alleged to be unconstitutional, the Supreme Court held that a particular official was properly named as a defendant if the official "by virtue of his office has some connection with the enforcement of the act." So long as such a connection existed, the Court held, the suit to restrain enforcement could be characterized as a suit against the official personally and not as a suit against the state. The bar of the eleventh amendment was thereby avoided. Id. at 150-56, 28 S.Ct. at 450-452.

Ex Parte Young also explained the nature of the necessary connection. The state official sued in Ex Parte Young was the attorney general, and he had a sufficient "connection" with the enforcement of the challenged law, which set maximum rates for railroads, in his responsibility for bringing civil enforcement actions against violators. Id. at 157-61, 28 S.Ct. at 452-454. The Court reasoned that these responsibilities made him personally a party to the controversy over the law's enforcement because his bringing of a civil enforcement action against a violator would, if the rate law was unconstitutional, constitute an actionable wrong or trespass to the violator's legal rights. Id. at 153-56, 28 S.Ct. at 451-452. The Court cited for contrast an earlier case, Fitts v. McGhee, 172 U.S. 516, 529-30, 19 S.Ct. 269, 274, 43 L.Ed. 535 (1899), where it did not allow a suit against state officials who had no responsibilities to take any personal actions to enforce or execute a law alleged to be unconstitutional and who consequently could commit no actionable wrong against the plaintiffs in connection with the law. See 209 U.S. at 156-58, 28 S.Ct. at 452-453.

In the present case, the duties of the prothonotary and the sheriff in connection with the postjudgment garnishment procedures consist of issuing the writ of execution and serving it on the garnishee. Pa.R.Civ.P. 3103, 3108. Their performance of these duties had the same effect on the plaintiff's rights that the Supreme Court found critical in Ex Parte Young. Their actions were the immediate causes of the attachment and freezing of Mrs. Finberg's bank accounts. If the rules that they were executing are unconstitutional, their actions caused an injury to her legal rights. On the basis of the reasoning employed in Ex Parte Young, we find that they are parties to her dispute over the constitutionality of these rules and properly named as defendants in her suit.

This conclusion is not altered by the fact that the duties of the prothonotary and the sheriff are entirely ministerial. Under Ex Parte Young the inquiry is not into the nature of an official's duties but into the effect of the official's performance of his duties on the plaintiff's rights. We note that courts often have allowed suits to enjoin the performance of ministerial duties in connection with allegedly unconstitutional laws. See, e. g., Powell v. McCormack, 395 U.S. 486, 494, 89 S.Ct. 1944, 1949, 23 L.Ed.2d 491 (1969); Ackies v. Purdy, 322 F.Supp. 38, 40 (S.D.Fla.1970); Rodriguez v. Swank, 318 F.Supp. 289, 297 (N.D.Ill.1970) (three-judge court), aff'd mem., 403 U.S. 901, 91 S.Ct. 2202, 29 L.Ed.2d 677 (1971).

Nor do we retreat from this conclusion on any notion that these defendants have an insufficient interest in the constitutionality of the rules to be adverse to Mrs. Finberg. Once the prothonotary and the sheriff have relied on the authority conferred by the Pennsylvania procedures to work an injury to the plaintiff, they may not disclaim interest in the constitutionality of these procedures. That course of action would be inconsistent with their obligations to respect the constitutional rights of citizens. See Mattis v. Schnarr, 502 F.2d 588, 595-96 (8th Cir. 1974). In fact, the prothonotary and the sheriff have displayed no lack of interest in defending the constitutionality of the rules. They presented a successful defense in the district court and have continued a vigorous defense in this court.

If then the prothonotary and the sheriff are properly named as defendants, the suggestion that other officials should have been named is significant only if these other officials are necessary parties to the dispute. Fed.R.Civ.P. 19(a). Although the issue of necessary parties is not strictly jurisdictional, an appellate court should consider, on its own motion, any plausible argument that the interest of an absent party requires that party's joinder. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 111, 88 S.Ct. 733, 738, 19 L.Ed.2d 936 (1968).

The only other Pennsylvania officials who might be said to have an interest in this constitutional challenge to Pennsylvania's postjudgment garnishment rules are the officials who promulgated them, the justices of the Pennsylvania Supreme Court. We find that their joinder is not necessary, even if it would be feasible. It is not necessary to afford complete relief among those already parties. Fed.R.Civ.P. 19(a)(1). A declaration that the prothonotary and the sheriff violated Mrs. Finberg's constitutional rights would afford all of the relief that she sought at the beginning of this lawsuit: the undoing of the process that led to the attachment and freezing of her bank accounts. She requested no relief that required the involvement of the justices. Compare Ricci v. State Board of Law Examiners, 569 F.2d 782 (3d Cir. 1978) (per curiam) (Supreme Court of Pennsylvania was a necessary and indispensable party to a suit challenging a denial of admission to the state bar because a Supreme Court ruling was necessary for admission). Failure to join the justices also will not prejudice their interest in the case. Fed.R.Civ.P. 19(a)(2). Their interest is essentially the same as that of the present defendants, which is a defense of the constitutionality of the rules. From our observation of the progress of the case, we are satisfied that the prothonotary and the sheriff have performed adequately in presenting a defense. See Welsch v. Likins, 550 F.2d 1122, 1130-31 (8th Cir. 1977).

We conclude that the district court correctly proceeded with the prothonotary and sheriff as the only state officials named as defendants.

Having concluded that a justiciable controversy existed between the parties at the time of the attachment of Mrs. Finberg's bank accounts, we must decide whether the controversy became moot when she recovered all of the money that had been attached. This event removed Mrs. Finberg's immediate personal stake in a declaration of the unconstitutionality of the application of the garnishment procedures. A finding of mootness normally would follow.

However, mootness is not the result in cases challenging "short term orders, capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). To avoid mootness on this ground, a complaining party must demonstrate a "reasonable expectation" that he will be subject to a recurrence of the activity that he challenges. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam). He also must show that the activity is "by its very nature" short in duration, "so that it could not, or probably would not, be able to be adjudicated while fully 'live.' " Dow Chemical Co. v. EPA, 605 F.2d 673, 678 n.12 (3d Cir. 1979).

In the present case, Mrs. Finberg does have some reason to fear that she will suffer another attachment of her bank accounts. She remains a judgment debtor. As the record indicates that she is an elderly widow with a modest income, this judgment could remain unsatisfied for some time. Future efforts to execute the judgment are therefore likely. Sterling might repeat its attempt to garnish the accounts. For example, when new funds accumulate in the accounts, Sterling might find that the garnishment process is the most efficient way of determining whether any of the new funds are exempt. We also cannot disregard the possibility that a successor to Sterling's interest, such as a collection agency, could make such an attempt.

Furthermore, Mrs. Finberg's modest income and the difficulties that she has demonstrated in this case in meeting the demands of a creditor indicate that she may incur another money judgment and suffer an attempted garnishment to execute it. This possibility is similar to that found adequate in SEC v. Sloan, 436 U.S. 103, 109-10, 98 S.Ct. 1702, 1707-1708, 56 L.Ed.2d 148 (1978). In Sloan, the Court found that a securities issuer's history of violations of SEC and stock exchange rules raised a "reasonable expectation" of future violations and hence of future SEC orders to suspend trading in the issuer's securities.

Considering all of the foregoing facts, the possibility of a future attachment of Mrs. Finberg's bank accounts is not overwhelming, but it is not insubstantial. We conclude that she has enough of an expectation of a recurrence to satisfy this part of the test.

Mrs. Finberg also can show that any recurrence probably would evade review in this court. Any lawsuit challenging the constitutionality of the attachment would require, at the very least, one year to proceed from the filing of a complaint in the district court to the entry of judgment in this court. The attachment probably would end within that time with the occurrence of either of two events: the release of the accounts from attachment pursuant to claims of exemption, as occurred here, or the entry of a final judgment in the state court garnishment action. Pa.R.Civ.P. 3146-3148. Neither event should take as long as one year to occur because the issues and procedures in a garnishment are relatively simple. See generally Pa.R.Civ.P. 3117-3123, 3140-3148. An exceptional instance of a long and protracted garnishment is most unlikely, given the small amounts of money that Mrs. Finberg reasonably might accumulate in her bank account. In the present case, for example, the process reached completion within six months.

We conclude that the attachment of Mrs. Finberg's bank accounts during an attempt to garnish them was short-term activity "capable of repetition, yet evading review." Her claims for declarations that the procedures employed in this activity violate the due process and supremacy clauses of the constitution, therefore, are not moot. Although the supremacy clause claim arises under the Constitution, it involves consideration of a state and a federal statute to determine if they conflict rather than interpretation of a substantive provision of the Constitution such as the due process clause. Therefore we normally would consider the supremacy clause claim first because, if dispositive, it would obviate the need to decide the substantive constitutional question. See Hagans v. Lavine, 415 U.S. 528, 549, 94 S.Ct. 1372, 1385, 39 L.Ed.2d 577 (1974). However, the supremacy clause claim cannot be dispositive here because Mrs. Finberg claims due process violations for funds exempt under Pennsylvania law in addition to those exempt under the Social Security Act. Because of the breadth of the due process claim, we have chosen to address it at the outset.

Mrs. Finberg's first declaratory judgment claim asserted that the attachment and freezing of her bank accounts deprived her of property without due process of law. No one disputes that Mrs. Finberg had a property interest in her bank accounts that required some measure of protection under the due process clause. The issue in dispute is whether the applicable rules of procedure afforded her sufficient protection.

(1) Supreme Court precedent

The Supreme Court addressed a similar issue over fifty years ago in Endicott-Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288 (1924). There the Court held that due process did not require notice and an opportunity to be heard before the issuance of a writ to garnish a judgment debtor's wages. The Court reasoned that the judgment debtor, who "has had his day in court" in the action on the merits must "take notice of what will follow." Id. at 288, 45 S.Ct. at 62. However, the Court did not consider the possibility that the garnishment might deprive the judgment debtor of exempt property, which is critical to this case.

Moreover, a series of more recent decisions by the Supreme Court adopts a different line of reasoning. These decisions concern a creditor's use of process to seize or attach a debtor's property. They differ from the present case in that the creditor had not yet reduced its claim of indebtedness to judgment when it brought about the seizure. However, an examination of these cases will reveal that they govern the issue now before us, despite this distinction.

The first two decisions of this series established that a debtor's interest in the continued possession and use of property must receive strong protection against the creditor's use of process, in particular notice and an opportunity to be heard before a prejudgment seizure. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), held unconstitutional a prejudgment garnishment procedure which allowed a creditor to freeze the wages of a debtor in the hands of an employer pending the outcome of the action on the creditor's claim of indebtedness. The Court ruled that due process required notice and an opportunity to be heard before imposition of the freeze. It announced a similar holding in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), which involved procedures allowing a creditor to replevy goods in which he held a security interest before a final adjudication of the debtor's default or of the creditor's right to repossess the goods.

The Court subsequently explained that notice and hearing prior to attachment are not absolutely necessary. Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), was, like Fuentes, a review of a prejudgment seizure of goods subject to a security interest. The procedures reviewed in Mitchell required no notice and opportunity to be heard prior to seizure but afforded a number of other procedural safeguards to the debtor. These included the requirement of a sworn affidavit showing the creditor's claim and right to repossession, issuance of a writ authorizing seizure by a judge rather than by a court clerk, the requirement that the creditor post a bond that would be used to compensate a debtor for damages caused by a wrongful seizure, and most important, notice and an opportunity for a hearing and dissolution of the writ "immediately" after the seizure. Id. at 605-06, 94 S.Ct. at 1899.

The Court held that these procedures satisfied the requirements of due process. It explained that the state has a legitimate interest in enabling the creditor to enforce his security interest in the debtor's property. The absence of notice and a hearing prior to a seizure serves the creditor's interest by preventing the debtor from concealing, transferring, or wasting the property. Id. at 608-09, 94 S.Ct. at 1900. At the same time, the harm that a wrongful seizure might cause was minimized by the provision for notice and hearing immediately after the seizure, and the risk of wrongful seizures in the first instance was minimized by the other procedures. Id. at 610, 94 S.Ct. at 1901. The Court concluded that with these procedures "the State has reached a constitutional accommodation of the respective interests" of the creditor and the debtor. Id.

In the final decision of this series, North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the Court made clear that it would not find a "constitutional accommodation" unless procedures afford substantial protection to a debtor's interest in continued use of property. This decision invalidated a prejudgment garnishment procedure that allowed the freezing of a corporation's bank account without either notice and a hearing before the freeze or alternative safeguards similar to those in Mitchell v. W. T. Grant Co. See also Jonnet v. Dollar Savings Bank, 530 F.2d 1123, 1128-30 (3d Cir. 1976).

The case before us now presents the same interests that the Supreme Court sought to accommodate in the four prejudgment seizure cases. The attachment of property held by a garnishee is, like a prejudgment seizure, a provisional measure serving the judgment creditor's interests by preventing transfer or concealment of the property before the creditor can execute a final seizure. The attachment affects the debtor's interest by depriving her of the continued use of her property.

The fact that in this case the creditor has obtained a judgment on its claim of indebtedness does not alter this basic similarity. Sterling's judgment represents only an adjudication of Mrs. Finberg's liability on a monetary debt, not a transfer to Sterling of title to any particular item of her property. Sterling could obtain a final adjudication of its right to seize her bank accounts only with the completion of the garnishment process. A debtor might still defeat that right with any of a number of defenses not adjudicated in the action on the merits, such as in the present case with a claim of exemption. Thus, the attachment remains a provisional measure, and the debtor retains a protectable interest in the use of her property during the pendency of the creditor's action.

We conclude that the four prejudgment seizure cases control the due process issue before us now. In relying on these cases, we take the same approach to a postjudgment garnishment case that the United States Court of Appeals for the Fifth Circuit took in Brown v. Liberty Loan Corp., 539 F.2d 1355, 1365 (5th Cir. 1976), cert. denied, 430 U.S. 949, 97 S.Ct. 1588, 51 L.Ed.2d 797 (1977). See also Betts v. Tom, 431 F.Supp. 1369, 1374 (D.Haw.1977).

The principles established in the controlling Supreme Court decisions, to summarize, are that notice and an opportunity to be heard before an attachment are not absolutely necessary. However, the available procedures must afford the debtor adequate protection against erroneous or arbitrary seizures. The procedural protection is adequate if it represents a fair accommodation of the respective interests of creditor and debtor. Thus, before turning to a review of the Pennsylvania procedures, we must examine these interests.

(2) Competing interests

The relevant interests, as noted, are the creditor's interest in enforcement of the judgment debt and the debtor's interest in continued use and possession of her property. The weight to be accorded these interests depends upon the facts of a particular case.

The fact that the creditor has obtained a judgment establishing the monetary liability of the debtor gives it a strong interest in a prompt and inexpensive satisfaction of the debt. The creditor has the right to seek recovery from the debtor or the debtor's property. Additional delay and expense can diminish the value of its ultimate recovery.

Another distinctive fact of this case is the type of property seized: the bank accounts of an individual. The ability to seize monetary assets advances the creditor's interests because an execution on such assets generally is faster and less expensive than a levy and judicial sale of nonmonetary assets.

However, the debtor's interests also assume greater weight in a seizure of an individual's bank accounts. A bank account may well contain the money that a person needs for food, shelter, health care, and other basic requirements of life. Many people have no other immediate sources of money. Additional income from a future paycheck, welfare benefit, or other source may not be available for two weeks or more, and that income may be insufficient to meet the person's immediate needs. When we consider the additional fact that the money in the accounts may, as here, be covered by exemptions designed to protect a debtor's means of purchasing basic necessities, the debtor's interest in access to a bank account becomes very compelling.

In determining whether the debtor's protection under the Pennsylvania rules represents a proper accommodation of these interests, we must consider "the probable value, if any, of additional or substitute procedural safeguards" and the "fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

The Pennsylvania postjudgment garnishment procedures do not provide for notice and an opportunity to be heard before attachment of bank accounts. Mrs. Finberg concedes that due process does not require these procedures, since their absence serves the creditor's interest in preventing a waste or concealment of assets. See Mitchell v. W. T. Grant Co., 416 U.S. 600, 608-09, 94 S.Ct. 1895, 1900, 40 L.Ed.2d 406 (1974). She contends, however, that the procedures are inadequate because they do not contain certain measures for the protection of property subject to her exemptions: an opportunity for a hearing and adjudication of claims of exemption promptly after the attachment, adequate postseizure notice to the judgment debtor, a creditor's affidavit stating that the writ of execution will not cause the attachment of exempt property, issuance of a writ only by a judicial officer, and a bond posted by the creditor for use in compensating the debtor for an attachment of exempt property.

(1) Prompt postseizure hearing

A fundamental requirement of due process is an opportunity to be heard "at a meaningful time." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). When the opportunity is deferred until after a provisional seizure of property, it must not be unnecessarily deferred much beyond that time. See Barry v. Barchi, 443 U.S. 55, 66, 99 S.Ct. 2642, 2650, 61 L.Ed.2d 365 (1979).

In the circumstances of the present case, the debtor's interests demand an especially prompt hearing. Her purpose in asserting exemptions is to regain money required for the basic expenditures of living. The creditor, on the other hand, has an interest in delaying a hearing and adjudication on claims of exemptions only to the extent that delay is necessary to prepare a response to the debtor's claims. At the very minimum, then, a judgment debtor in Mrs. Finberg's position must have an opportunity to assert and adjudicate claims of exemption promptly after the imposition of a freeze.

The appellees argue that a prompt hearing and adjudication is available on a petition to the Court of Common Pleas under Pa.R.Civ.P. 3121(d). This rule allows the court to "set aside the writ, service or levy ... (2) Upon a showing of exemption or immunity of property from execution." Proceedings on a rule 3121(d) petition are governed by general rules of motion practice, which are Pa.R.Civ.P. 206-209 and also Philadelphia General Civil Rule 140 for Philadelphia County. Misco International Chemicals, Inc. v. Spritz, 5 Pa. D.& C.3d 779, 782-83 (Phil.Cty.C.P.1977); Hollinger v. Penn Harris Real Estate, Inc., 39 Pa. D.&C.2d 201, 205-06, 84 Dauph. 378 (1966). We find that the rules governing motion practice fail to provide a sufficient measure of promptness.

Under the Philadelphia rule, the creditor may take fifteen days to respond to a petition before the debtor may request a ruling from the court. Philadelphia General Civil Rule 140(B)(4). Even if the court then gives an immediate ruling, fifteen days is too long a period to deprive a person of money needed for food, shelter, health care, and other basic needs. The creditor has little need for this much time in preparing a response, since complicated issues seldom arise concerning the Pennsylvania $300 exemption, the Social Security Act exemption, and other exemptions designed to protect funds for basic necessities.

An exception to the fifteen-day rule is available for a "petition of an emergency nature." Id. 140(H).4 However, nothing in the local rules, published court decisions, or the record of this case indicates the likelihood of a judgment debtor obtaining an exception for a rule 3121(d) petition. Nor does any authority indicate the probable length of the response period for any exception. With this much uncertainty, we cannot accept this provision as providing the necessary promptness.

Even after the period allowed for the creditor to respond, further delay is likely before the court rules on the debtor's petition. If the creditor demands proof on any of the allegations in the debtor's petition, which it may do by simply asserting a lack of knowledge, Pa.R.Civ.P. 1029(c), the parties must proceed to take depositions on disputed issues of fact. Id. 209(a). The motions court has no authority to dispense with the deposition process when a petition and response raise disputed issues of fact. Instapak Corp. v. S. Weisbrod Lamp & Shade Co., 248 Pa.Super. 176, 374 A.2d 1376 (1977). The rules impose no time limits on the deposition process, and it is not by nature swift. See generally Pa.R.Civ.P. 4007.1, 4007.3. Therefore, when the creditor demands proof on claims of exemption, the rules provide absolutely no assurance of a prompt ruling on a rule 3121(d) petition.

The district court held that a debtor can obtain a prompt release of exempt property from an attachment with a request to the sheriff under Pa.R.Civ.P. 3123. The rule is quoted in the margin.5 The district court read it to mean that the sheriff, upon receipt of a verified affidavit, must "promptly" order the release of exempt funds to the use of the debtor. 461 F.Supp. at 262.

We do not read rule 3123 to apply to a judgment debtor in Mrs. Finberg's position. A fair reading of the rule indicates that it applies to property held by the sheriff in preparation for a judicial sale. In a garnishment action against intangible property, the property stays in the hands of the garnishee until the court enters judgment against the garnishee. See Pa.R.Civ.P. 3109(a), 3111(c), 3148. The judgment then is in the form of a money judgment against the garnishee. Id. 3148(a)(1). The sheriff never holds the property in preparation for a judicial sale or for any other purpose.

We cannot find any evidence of the use of rule 3123 to claim exemptions for property held by garnishees or for executions against intangible property.6 The parties, one of whom is the Sheriff of Philadelphia County, state that they also are unaware of such uses. Indeed, neither appellee has offered any argument in this court in support of the district court's assumption that Mrs. Finberg could have invoked this rule. We conclude that this assumption is incorrect.

Even in situations where rule 3123 applies, it does not provide for a prompt return of exempt property to the debtor. The rule imposes no time limit on the sheriff's determination of the validity of a claim of exemption. No authority that we can find requires the sheriff to return exempt property to the debtor at any time before the judicial sale. We find no basis for the district court's conclusion that rule 3123 enables a judgment debtor promptly to recover exempt property.

The only other process that might allow a judgment debtor to assert a claim of exemption is a preliminary objection to a writ of execution. Pa.R.Civ.P. 3142(a). However, proceedings on preliminary objections are subject to the same rules that govern proceedings on petitions under rule 3121(d). Pa.R.Civ.P. 1028(c); Philadelphia General Civil Rule 140(E). Hence, this process would afford no greater promptness. We conclude that the Pennsylvania postjudgment garnishment rules fail to provide the prompt postseizure hearing and adjudication of claims of exemption under the provisions of any act of Congress or under any Pennsylvania Act of Assembly that due process requires.

(2) Notice

Along with a hearing at a meaningful time, fundamental principles of due process required that Mrs. Finberg receive timely and adequate notice of the attempt to garnish her accounts. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The Pennsylvania rules provide: "Upon being served with the writ (of execution), the garnishee shall forward a copy to the defendant." Pa.R.Civ.P. 3140(a). The rules also require the garnishee to forward to the debtor a copy of its answers to any interrogatories of the creditor. Id. 3140(b).7 Mrs. Finberg asserts two deficiencies in these procedures.

Her first contention is that notice in the foregoing manner might not reach the debtor. She argues that the rules do not contain sufficient safeguards against a garnishee's failure to forward copies of the writ and answers to interrogatories.8 However, in the present case, the garnishee fully complied with the rules and gave Mrs. Finberg notice in the prescribed manner. The issue of this alleged constitutional defect, therefore, is not presented by the facts of this case. Accordingly, we shall refrain from considering the issue. See United States v. Rains, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).

The second defect that Mrs. Finberg alleges is that the notice prescribed by the rules, and received by her, did not inform her of exemptions that might apply to her property and of the process for claiming exemptions. The district court rejected this contention "since due process simply does not require that the state inform individuals of their legal rights." 461 F.Supp. at 263.

The notice required by due process must be "reasonably calculated, under all the circumstances, to ... afford (interested parties) an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). The Supreme Court held in Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13-15, 98 S.Ct. 1554, 1562-1563, 56 L.Ed.2d 30 (1978), that a public utility's notice to customers that it was terminating gas and electric services failed to satisfy due process because the notices did not inform the customers of the process for contesting terminations. According to the Court, what due process requires for the content of the notice depends upon the circumstances of the particular case. Id. at 14 n.15, 98 S.Ct. at 1563.

In this case, Mrs. Finberg was not informed of either the exemption for social security benefits, or the $300 exemption under Pennsylvania law. As we noted earlier, both of these exemptions are designed to protect a debtor's means of purchasing basic necessities. In a case involving an attempt to garnish an individual debtor's bank accounts, notice that informs the debtor of the exemption under federal law for social security benefits, of the existence of the $300 exemption under Pennsylvania law, and of the procedure for claiming these exemptions would provide substantial protection to the debtor's interest in having funds available for basic necessities. Knowledge of these exemptions is not widespread, and a judgment debtor may not be able to consult a lawyer before the freeze on a bank account begins to cause serious hardships. These problems are probably most acute for those judgment debtors who have few immediate sources of necessary funds other than money held in a bank account. Notice of these matters can prevent serious, undue hardship for the judgment debtor whose lack of information otherwise would cause delay or neglect in filing a claim of exemption. Because Mrs. Finberg did not claim other exemptions under Pennsylvania law, we need not determine the effect of our decision on Pennsylvania exemptions not claimed by Mrs. Finberg.

The conveyance of this information would not place a great burden on the state. For example, the information might be provided on the copy of the writ of execution which the garnishee is required to promptly forward to the defendant. See Pa.R.Civ.P. 3140(a). The creditor would not have to incur any additional expense or delay. We hold that the failure to provide Mrs. Finberg with this information was a violation of due process.

(3) Preliminary affidavit, bond, and judicial issuance

The requirements of notice and an opportunity to be heard on claims of exemptions after the imposition of a freeze, as just discussed, serve to minimize the hardship caused the debtor by an attempt to garnish exempt funds. Mrs. Finberg argues that due process requires a number of additional procedures that arguably would reduce the number of such garnishments in the first instance.

The first of these procedures is a requirement that the judgment creditor file, along with the praecipe for a writ of execution, an affidavit stating that the writ would not cause the attachment of exempt funds. Mrs. Finberg next contends that two additional procedures are necessary to reduce the number of wrongful garnishments: the posting of a bond to compensate the judgment debtor for injury caused by attachment of exempt property and the requirement that a judge or magistrate issue a writ of execution.

We have considered these contentions and conclude that although the requirements might be desirable, we do not believe their absence constitutes a violation of due process. See Brown v. Liberty Loan Corp., 539 F.2d at 1369.

Mrs. Finberg's second declaratory judgment claim asserted that the Pennsylvania postjudgment garnishment rules conflict with the Social Security Act exemption. She prayed for a declaration that the procedures are invalid under the supremacy clause of article six of the Constitution.

A state law is in conflict with a federal statute, and void under the supremacy clause, if it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Accord, Jones v. Rath Packing Co., 430 U.S. 519, 526, 97 S.Ct. 1305, 1310, 51 L.Ed.2d 604 (1977). This test requires us to examine first the purposes of the federal law and second the effect of the operation of the state law on these purposes. See Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971).

The Social Security Act exemption provides that benefits "shall not be subject to execution, levy, attachment, garnishment, or other legal process." 42 U.S.C. § 407 (1976). The overall objective of the social security system is "the protection of its beneficiaries from some of the hardships of existence." United States v. Silk, 331 U.S. 704, 711, 67 S.Ct. 1463, 1467, 91 L.Ed. 1757 (1947). The exemption of benefits from legal process has the apparent purpose of furthering this objective by ensuring that a beneficiary has uninterrupted use of moneys received as benefits.

The immediate effect of Pennsylvania's current postjudgment garnishment procedures is to provide a judgment creditor with a means of violating the exemption. Social security beneficiaries commonly hold their benefits in bank accounts. Yet, the Pennsylvania procedures make available a process for attaching and freezing bank accounts without regard to whether they contain social security funds.

Even though the procedures have this effect, they might still avoid interference with congressional purposes if they operate in a manner that avoids any significant interruption of access to benefits. However, as our discussion in the previous section illustrates, they do not operate to avoid such consequences. The absence of a prompt hearing on claims of exemption means that a judgment debtor could be denied access to social security benefits for a long time. The inadequate notice procedures raise a danger of a permanent loss of benefits. For a judgment debtor who depends upon social security to meet the necessary expenditures of living, these consequences can be severe.

Thus, the net effect of Pennsylvania's postjudgment garnishment procedures is to bring about precisely the consequences that Congress sought to prevent. It follows that they stand "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, supra.

The district court sought to avoid this conclusion with a special reading of the Pennsylvania procedures. The court presumed that the draftsmen of the rules did not intend that they be used to attach and freeze Social Security benefits. It then concluded that such use of the procedures was a violation of Pennsylvania law, "so that one who proceeds with such a garnishment will be liable for the return of the unlawfully seized, federally exempt funds." 461 F.Supp. at 258.

We need not determine the correctness of the district court's reading of Pennsylvania law because we find that even under this reading the postjudgment garnishment procedures would still operate to frustrate congressional purposes. A creditor already must return social security benefits that have been attached; the mechanism is a petition to set aside the writ of execution under Pa.R.Civ.P. 3121(d). The addition of a formal prohibition of the attachment of benefits and "liability" for their return would add no greater sanction against this use of the garnishment procedures. The creditor would have no reason to take any greater care to avoid the attachment of bank accounts that contain social security benefits than he would take without these measures. The measures contemplated by the district court would be no more than formal and ineffective barriers to interference with congressional purposes.

We conclude that the Pennsylvania procedures conflict with the social security exemption and are invalid under the supremacy clause.VI. Class Certification

Mrs. Finberg filed a timely motion to certify a plaintiff class and subclass for the declaratory judgment claims. The district court took no immediate action on the motion but left it pending for nine months. Eventually the court found that the declaratory judgment claims lacked merit. Having reached this conclusion, it reasoned that "class certification would serve no purpose" and denied the motion. 461 F.Supp. at 257.9

We note that our vacating of the summary judgment orders on the declaratory judgment claims removes the premise for the district court's denial of class certification. However, we believe the merits of the plaintiffs' substantive claims to be an impermissible basis for deciding this issue.

It is not correct to say that the district court's ruling on the merits of the declaratory judgment claims deprived certification of any purpose. In general, the certification of a class does not depend upon whether the substantive claims have any merit. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S.Ct. 2140, 2152, 40 L.Ed.2d 732 (1974); Kahan v. Rosenstiel, 424 F.2d 161, 169 (3d Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970). Certification in suits for injunctive or declaratory relief under rule 23(b)(2) serves an important purpose that is not obviated by rulings against the named plaintiffs on the substantive claims. Because a risk of mootness often is present in these cases, certification ensures that the claims of unnamed plaintiffs will receive full appellate review. If the claims of the named plaintiffs become moot, the appellate court might still find that the claims of unnamed class members present live controversies. Sosna v. Iowa, 419 U.S. 393, 398-402, 95 S.Ct. 553, 556-558, 42 L.Ed.2d 532 (1975). The Supreme Court recognized the importance of this function of rule 23(b)(2) certification when it stated that the district court should "heed strictly" the requirement of a prompt ruling on a certification when mootness may develop. Swisher v. Brady, 438 U.S. 204, 213-14 n.11, 98 S.Ct. 2699, 2705-2706, 57 L.Ed.2d 705 (1978).

We hold that the district court's rulings on the plaintiffs' substantive claims did not constitute a valid basis for denial of class certification. We will vacate the denial of class certification.

The orders of the district court granting summary judgment for defendants on each of the declaratory judgment claims and denying class certification will be vacated. The case will be remanded to the district court for disposition consistent with this opinion.

ALDISERT, Circuit Judge, dissenting.

My disagreement with the majority is fundamental and all pervasive. We are divided not so much over the choice, interpretation, or application of legal precepts as by a primary difference in our understanding of federalism. My views of Pennsylvania Common Pleas Court practice are nadiral to those of the majority; our disagreement, irreconcilable. Yet because we are intimately absorbed in "our natural law inheritance in constitutional adjudication,"1 our debate must be spirited and robust. Only if it is will the common law adjudicatory tradition be truly respected and, by a percolating process, a tried and tested gloss added to the constitutional precepts of case and controversy and due process.

My dissent covers a wide range. I doubt whether true adversaries are before this court to address a constitutional issue so pregnant with debtor-creditor relationships; I defend the thesis that Mrs. Finberg's claim is now moot and that the only live issue before us is the question of class certification; I argue that certifying a class in this case may have been theoretically proper although practically inconsequential. Most important, however, my understanding of traditional Pennsylvania Common Pleas Court practice and the Pennsylvania Rules of Civil Procedure, tempered by fourteen years' experience as a Pennsylvania state court practitioner and eight years as a Pennsylvania Common Pleas Court judge, is diametrically opposed to the majority's. At every decision point presented by this complex case, this court is sharply divided.

Although not central to the disposition of the case, the absence of a creditor-litigant illustrates the lack of sufficiently adverse parties to present most persuasively each opposing viewpoint. This court has acceded to theoretical notions of debtors' rights conjured up by the debtors' institutional advocate, the Community Legal Services, Inc., without hearing one word from anyone representing creditors. The absence of vigorous adversaries in this constitutional attack on the attachment execution procedures promulgated by the highest court of a state should counsel this court to abide the teachings of the Supreme Court, which has described the requirement of actual adversaries as "a safeguard essential to the integrity of the judicial process, and one which we have held to be indispensable to adjudication of constitutional questions by this Court." United States v. Johnson, 319 U.S. 302, 305, 63 S.Ct. 1075, 1076, 87 L.Ed. 1413 (1943) (per curiam) (citations omitted).

The status of the sheriff and prothonotary of Philadelphia County as "proper parties to this action" does not, as the majority suggest, rectify the absence of actual adversaries. There is a basic difference between the presence of proper parties to confer federal subject matter jurisdiction and the presence of parties with sufficient interest at stake to guarantee the minimum quantum of conflict to constitute a case or controversy. The appellees before us wear the appropriate public costumes to furnish a modicum of state action, thereby becoming the vehicle by which an ordinary dispute between a debtor and creditor has been transmogrified into a federal case by virtue of 42 U.S.C. § 1983. But they are actually only actors in a Kabuki play, acting out artificial roles by gesture and speech, with everyone in the audience aware of the masquerade. Although they presented "a vigorous defense in this court," maj. op. at 54, I am not prepared to say that they have any interest in the outcome that qualifies as legally adverse to Mrs. Finberg. They are merely official stakeholders, giuridici castrati, juridical neuters, required to defend the existing Pennsylvania Procedural Rules, whether this means protecting the interest of the debtor or the creditor. The state attorney general, who is vested with responsibility for enforcing and defending state statutes, did not participate and apparently was not notified, an extreme irony in a case touching precisely the rights to notice and hearing.2 I therefore must doubt that the appellees before the court make this controversy between creditor and debtor "definite and concrete, touching the legal relations of parties having adverse legal interests." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 463-464, 81 L.Ed. 617 (1937). Unlike the Minnesota Attorney General in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), who had been adjudged guilty of contempt and ordered to jail until he dismissed a state mandamus proceeding, the sheriff and prothonotary in this case are mere bystanders in Mrs. Finberg's claim against Consumer Discount Company. They have presented a respectable defense before us, but that is not the constitutional test; the test is whether the parties actually have conflicting interests in the outcome.3

Nor do I agree with the majority's statement that the sheriff and the prothonotary "presented a successful defense in the district court." Maj. op. at 54. The record shows that the defendants lost in the court below. The district court determined that Social Security funds deposited in a bank account are immune from attachment and that Mrs. Finberg was entitled to reimbursement for the statutory garnishee's fees. The creditor defendant, Consumer Discount Company, paid this amount and did not appeal or participate in these proceedings. The only appellant before us was the winner in the court below. Therefore, no party with an interest genuinely antagonistic to the appellant is before us.

This case suffers not only from an absence of actual adversaries, but from the mootness of Mrs. Finberg's claim. A case or controversy ceases to exist when the matter has been resolved. See DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 1705, 40 L.Ed.2d 164 (1974) (per curiam); Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969); Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3, 84 S.Ct. 391, 394, 11 L.Ed.2d 347 (1964). An actual controversy must exist at every stage of the litigation, not merely at the time the complaint is filed. See, e. g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). In my view, the individual action brought by Mrs. Finberg has been fully resolved and is therefore moot. The class certification issue survives that individual resolution, however, and the court may address the merits only with respect to the class.

Mrs. Finberg alleged in the district court that the Pennsylvania attachment execution procedures violated her due process rights because she was not informed of her exemption rights before her bank account was attached. She also contended that federal statutes preclude garnishment of and execution of judgment against Social Security benefits. She sought declaratory and injunctive relief under 42 U.S.C. § 1983. By the time she filed her federal action, she had already obtained relief in state court. By virtue of her Common Pleas Court case, she knew that Social Security funds deposited in a bank were exempt from state attachment execution, and the federal district court reinforced this knowledge. Because Mrs. Finberg obtained actual notice of this exemption, she, as distinguished from other debtors, needed no declaratory judgment requiring a future creditor to so advise her. If we accept the majority's thesis that mandatory notice of this exemption is an accoutrement of due process, she already has received it, and the constitution does not require any court to perform an unnecessary act.

Moreover, as a result of her lawsuit, she was made financially whole. The issue presented in her federal action then became an "abstract proposition," the resolution of which is beyond an Article III court. See California v. San Pablo & T. R. R., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893). Her request for a declaratory judgment as well as compensation does not breathe life into the matter. Noting the difficulty in fashioning a precise test for determining whether a request for declaratory relief had become moot, the Supreme Court in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941), held that "the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Mrs. Finberg's recovery of compensatory damages, the district court's declaration that the federal Social Security exemption must be recognized in Pennsylvania garnishment proceedings, and the actual notice she received of this exemption, taken together, dissipated her dispute. I fail to see how the controversy remains sufficiently immediate and real; it has ceased to be "definite and concrete" and no longer "touch(es) the legal relations of parties having adverse legal interests." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 463-464, 81 L.Ed. 617 (1937).

The majority attempt an end run around orthodox mootness doctrine by invoking a fashionable exception to the preceding analysis, "capable of repetition, yet evading review." A proper use of this exception requires analysis of the decision in which it originated seventy years ago. In Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911), the Court examined a continuing order of the Interstate Commerce Commission and short term orders modifying it. Because the orders would necessarily expire before a federal court could review them, the Supreme Court first addressed the mootness issue, stating:

The questions involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar) and their consideration ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review, and at one time the Government and at another time the carriers have their rights determined by the Commission without a chance of redress.

219 U.S. at 515, 31 S.Ct. at 283. The leading contemporary construction of this precept was announced by Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam), in which the Court specified two elements that must appear together to invoke the exception: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Because the respondent in Weinstein, who was challenging the parole system in North Carolina, had been paroled and then released prior to the Court's action, the Court dismissed the action as moot. Employing the two part test, it stated that "there is no demonstrated probability" that the respondent would again encounter the parole system. Id. at 149, 96 S.Ct. at 348 (my emphasis). In addition to the two elements identified in Weinstein, I suggest a third element. The appellant whose claim has been mooted in the traditional sense may not continue to press it when, as here, the lower court has effectively resolved the dispute in her favor. Because Finberg fails to satisfy the second and third elements, this court should dismiss her individual claim as moot.

The majority argue that attachment execution actions are by their nature of such short duration that they will rarely, if ever, persist through the course of full judicial review. Maj. op. at 58. This statement is, in my view, essentially correct. Fulfillment of this criterion, however, does not absolve appellant of the other two criteria.

The second element requires us to determine whether there is a "reasonable expectation that the same complaining party (will) be subjected to the same action again." Weinstein, 423 U.S. at 149, 96 S.Ct. at 348. As noted previously, appellant was fully satisfied in both the state and federal trial courts. The district court determined that the Pennsylvania garnishment procedure, see Pa.R.Civ.P. 3101-49, "neither contemplates nor authorizes" garnishments in violation of the federal Social Security exemption, 42 U.S.C. § 407, and that garnishment of Social Security funds under color of the Pennsylvania rules is unlawful, subjecting the creditor who conducts such a garnishment to liability for the return of the federally exempted funds. Finberg v. Sullivan, 461 F.Supp. 253, 258 (E.D.Pa.1978). My examination of the record discloses that Mrs. Finberg had no substantive defense to the execution other than her successful claim that Social Security funds were wrongfully attached. Whatever may be the case of other members of the putative class, it cannot be said that Mrs. Finberg, a successful litigant in the federal district court on the issue of Social Security funds exemption, now needs notice that these federal funds are exempt from state attachment.

The majority's treatment of Mrs. Finberg's future position is notional at best, fanciful at worst. Their account of what will befall her in the future has no foundation in the record before us. The creditors who lost in the trial courts cannot reasonably be expected to attach her bank account again. If they do, or if other creditors do, the bank stands on notice that the funds may be exempt, and it will face double liability if it pays them over. See part IV B, infra. If creditors not parties to these proceedings recover judgment against her, she now has actual notice of the exemptions and can move almost instantaneously for release of her funds. See Pa.R.Civ.P. 3142(a); part IV C 2, infra. She is in as good a position as this court can put her, and cannot be expected to endure the "same action"-attachment without notice of applicable exemptions-in the future. Although "there is always the possibility" that she will be threatened again, the mootness exemption is not concerned with mere possibilities. See Presier v. Newkirk, 422 U.S. 395, 403, 95 S.Ct. 2330, 2335, 45 L.Ed.2d 272 (1975).

Finally, Mrs. Finberg has prevailed in both courts that have previously heard her claim. The federal district court concluded that the Social Security moneys are exempt from attachment and that Mrs. Finberg was entitled to damages from Sterling to compensate her for fees deducted by the bank for its services as garnishee. She was thus made 100 per cent whole financially. Moreover, the holding in the district court that Social Security funds are exempt from garnishment is tantamount to the declaratory judgment sought by Mrs. Finberg. Her claim having been satisfied, she "has obtained everything that (she) could recover by a judgment ... in (her) favor." California v. San Pablo & T. R. R., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893). The appeal in Mrs. Finberg's behalf should not be viewed as a continuation of the attempt to vindicate her interests. It is instead an attempt to expand the relief accorded her as precedent for all Pennsylvania, and indeed for the entire Third Judicial Circuit. When the appellant has received complete relief and the sole effect of our decision will be to expand that relief to other unnamed nonparties, I am convinced that good jurisprudence, as well as constitutional precedent, dictate dismissal of her appeal.4C.

Until the recent decisions in United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), and Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), I would have held that the entire case is moot. But appellant, as a putative class representative, has also appealed the denial of class certification. Like Finberg, the appellants in Roper had been made whole at or after trial, but the Court held that notwithstanding the mooting of their individual claims, their representative claims were alive. Geraghty made clear both the extent and the limitations of its holding:

(A)n action brought on behalf of a class does not become moot upon the expiration of the named plaintiff's substantive claim, even though the class certification has been denied. The proposed representative retains a "personal stake" in obtaining class certification sufficient to assure that Art. III values are not undermined. If the appeal results in reversal of the class certification denial, and a class subsequently is properly certified, the merits of the class claim then may be adjudicated pursuant to the holding in Sosna (v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)).

445 U.S. at 404, 100 S.Ct. at 1212 (footnote omitted). On the basis of these new directions, I would hold that the class action issue is not mooted and that Mrs. Finberg's representative claim is properly before us. I would go further and hold that on the basis of this record, the district court erred in not certifying a class of all Social Security recipients in Philadelphia County. I would conclude that the requirements of both Fed.R.Civ.P. 23(a) and 23(b) are met and that the failure to certify a class was an abuse of discretion. I would therefore reverse the district court's determination and remand for the purpose of certifying a class. This conclusion requires me to address the substantive due process arguments advanced by Mrs. Finberg on behalf of the class.

In addressing the majority's analysis of the Pennsylvania Rules of Civil Procedure, I have grave reservations not only about the integrity of their analysis but also about the implications of their action for the federal system. The majority have committed what I believe to be fundamental errors in construing the relevant Pennsylvania rules, and in doing so they have created the possibility that this adventure into Pennsylvania law will be purposeless when the Pennsylvania courts authoritatively construe the rules and avoid the constitutional defects found by the majority.

Three considerations dictate a greater caution and deference in construing the Pennsylvania rules than has been exercised by the majority. The most important one is that the majority's interpretation of Pennsylvania law causes the attachment execution schema to run afoul of the United States Constitution. The Supreme Court has frequently counselled that federal courts should presume "that the statute will be construed in such a way as to avoid the constitutional question presented," Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377 (1964) (citations omitted); see Siler v. Louisville & Nashville R. R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909), and that "state courts may be reluctant to attribute to their legislature an intention to pass a statute raising constitutional problems, unless such legislative intent is particularly clear," Boehning v. Indiana State Employees Assn., Inc., 423 U.S. 6, 7 n.*, 96 S.Ct. 168, 169, 46 L.Ed.2d 148 (1975) (per curiam) (citations omitted); see also Wisconsin v. Constantineau, 400 U.S. 433, 444, 91 S.Ct. 507, 513, 27 L.Ed.2d 515 (1971) (Black J., dissenting); cf. Bellotti v. Baird, 428 U.S. 132, 147-48, 96 S.Ct. 2857, 2866, 49 L.Ed.2d 844 (1976) (Supreme Judicial Court of Massachusetts, to which the district court would certify the statutory construction issue on remand, would be aided by Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), in construing the statute within the limits of the federal constitution). Moreover, the Pennsylvania courts operate under a mandate to construe state procedural rules so as not to violate the federal or state constitutions. Pa.R.Civ.P. 128(c).

The second consideration is pragmatic. By construing the rules in violation of the fourteenth amendment, and then holding unabashedly that they violate it, the court has adjudicated a constitutional issue that may be rendered meaningless when a Pennsylvania state court interprets these same rules. Regardless of the propriety of abstaining in this case,5 this court must recognize that its interpretation of the Pennsylvania rules is merely a prediction of what the state courts will do. See Hahn v. Atlantic Richfield Co., 625 F.2d 1095, at 1100 (3d Cir. 1980). The court's "tentative answer ... may be displaced tomorrow by a state adjudication.... The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court." Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 645, 85 L.Ed. 971 (1941) (citations omitted). The majority's basic approach is at odds with sound constitutional jurisprudence.

Finally, the majority's analysis of the Pennsylvania rules may do substantial harm to federal-state comity. As demonstrated in part IV, infra, the majority not only ignore settled principles of construing state statutes and particularly those of Pennsylvania; they not only concentrate on isolated provisions of a larger state schema in construing them to violate the fourteenth amendment; they also attribute the local rules of Philadelphia County to the entire state of Pennsylvania. There is no factual basis, in this record or otherwise, to support the notion that Philadelphia County practices are followed in the other sixty-six Pennsylvania counties. At each of these junctures, the majority neglect to acknowledge the Supreme Court's teaching that "(f)ew public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies ...." Pullman, 312 U.S. at 500, 61 S.Ct. at 645.6 I have grave concerns for the effect this type of decisionmaking will have on the relationship of federal and state judiciaries, and on the esteem currently enjoyed by this court.

I reject in toto the majority's interpretation of the Pennsylvania Rules of Civil Procedure and their perception of Pennsylvania common pleas practice. Their interpretation violates that state's precepts for construing civil rules, runs specifically counter to the published interpretations prepared by the committee that drafted the rules, ignores the interpretation offered by the commentators, is totally unsupported by case law, demonstrates a lack of understanding of Pennsylvania common law practice relating to emergency relief through motion practice, and violates the orthodox admonition that a federal court should not hold a state law unconstitutional if a reasonable meaning is available to preserve the legislative intention. See Siler v. Louisville & N. R. R., 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909).

For purposes of the due process analysis I shall accept the majority's assumption that "fifteen days is too long a period to deprive a person of money needed for food, shelter, health care, and other basic needs." Maj. op. at 59. I must emphasize, however, that this assumption does not square with two uncontroverted facts. First, the $300 personal exemption has been a universally recognized exemption to execution of contract judgments in Pennsylvania since 1849. See 42 Pa.C.S.A. § 8123(a), derived from Act of April 9, 1849, P.L. 533, § 1. Indeed, Mrs. Finberg had this portion immediately set aside. Second, Mrs. Finberg's monthly Social Security check amounted to $301. Thus, even a fifteen day delay in adjudicating her Social Security exemption claim would leave her almost 100 per cent of her monthly income under the $300 exemption.7 Moreover, because of her economic position, she is entitled to free medical care under Medicare and Medicaid and to free legal representation from the Community Legal Services.8

The majority's analysis of the relevant Supreme Court precedents lacks sensitivity to the different context in which this case arose. This case addresses not prejudgment attachment, but postjudgment attachment. The majority accept, as do I, the continuing viability of Endicott Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288 (1924), in which the Court upheld a New York statute allowing postjudgment garnishment of wages without notice to or opportunity for hearing of the judgment debtor. The Court noted that

the established rules of our system of jurisprudence do not require that a defendant who has been granted an opportunity to be heard and has had his day in court, should, after a judgment has been rendered against him, have a further notice and hearing before supplemental proceedings are taken to reach his property in satisfaction of the judgment.

Id. at 288, 45 S.Ct. at 62. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), addressed an identical situation arising before adjudication of the debtor's liability. In my view, the one substantial difference between Endicott Johnson and Sniadach is the time of garnishment in relation to the judgment. Although the majority is correct in noting that Endicott Johnson is not controlling in this case because it did not address a debtor's ability to claim exemptions from the judgment, I cannot accept the majority's cavalier disregard of the one fact significant to the Court in reaching different results in these otherwise identical cases. Had the majority given more consideration to the creditor's possession of a valid judgment against the debtor, the balance of interests may have been sufficiently altered to warrant upholding the Pennsylvania procedures. Cf. Brown v. Liberty Loan Corp., 539 F.2d 1355, 1366 (5th Cir. 1976) ("creditor interest in enforcement of a judgment ... is patently weightier than a prejudgment creditor's interest in freezing debtor assets to insure enforcement of a judgment that may never issue."), cert. denied, 430 U.S. 949, 97 S.Ct. 1588, 51 L.Ed.2d 797 (1977). My position is not that Mrs. Finberg should not have an opportunity to assert her exemption, but that the creditor's greater interest in enforcing its judgment diminishes the urgency of the process that is due her.

In applying the prejudgment seizure decisions of the Supreme Court, the majority fail to acknowledge the availability under Pennsylvania law of a hearing in which a judgment debtor may assert her exemptions. When a judgment debtor files a claim for exemptions, the trial court must allow submission of evidence appropriate to support and contest that claim. See Zeitchick Estate v. Zeitchick, 215 Pa.Super. 106, 109, 257 A.2d 371, 373 (1969). I see no problem with either the notice or hearing afforded debtors under the Pennsylvania rules, see part IV B infra, nor with the hearing provided. Therefore, I fail to comprehend the majority's invocation of the precedential authority of the four prejudgment seizure cases,9 in which no notice or opportunity to be heard was provided, and in which the creditor's interest was of much less weight. See maj. op. at 57.

Finally, assuming that all else stated by the majority is true, the limitations of their analysis do not justify the expansiveness of their relief. The importance of a more expeditious postjudgment garnishment hearing is to afford an opportunity to assert exemptions to judgment debtors who rely solely on money in bank accounts to meet their day to day subsistence needs. I do not challenge the importance of protecting assets of such importance to particular individuals, see Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 20, 98 S.Ct. 1554, 1565, 56 L.Ed.2d 30 (1978); Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23 L.Ed.2d 349 (1969), but the particularlized interest of the individual in this case does not justify the wholesale invalidation of otherwise legitimate procedures used throughout the Commonwealth of Pennsylvania.

In my view, therefore, the majority have committed fundamental errors in interpreting and applying the relevant Supreme Court decisions. But my disagreement does not stop there. I dissent far more strongly from the majority's construction of Pennsylvania law, a construction apparently predicated more on a desire to invalidate the relevant rules of procedure than to construe them as would a court of that state.

As the majority note, Mrs. Finberg does not contest the failure of the Pennsylvania garnishment procedure to provide notice to the debtor before her assets are attached. Her argument centers on the post-seizure procedure. My reading of the Pennsylvania Rules of Civil Procedure indicates that a debtor receives prompt notice of the seizure and has an opportunity for a prompt post-seizure procedure in which she can assert her exemption claims.

Under rule 3140, the garnishee, in this case the bank, must promptly forward a copy of the writ of attachment to the debtor. Pa.R.Civ.P. 3140(a). The garnishee must also promptly forward a copy of its answers to interrogatories to the debtor. Pa.R.Civ.P. 3140(b). Only if the garnishee complies with both of these requirements is it absolved of its common law duty to resist the attachment. See Pa.R.Civ.P. 3141(a). Similarly, if the garnishee fails to answer the writ or the interrogatories sufficiently, it subjects itself to judgment in the amount of the creditor's claim. Pa.R.Civ.P. 3141(a) (note). Under this procedure, the garnishee can raise for the debtor the defense of exemption as new matter in its answer to the interrogatories, see Eastern Lithographing Corp. v. Silk, 203 Pa.Super. 21, 23, 198 A.2d 391, 393 (1964), or the debtor can raise the exemption herself through preliminary objections as provided by Rule 3142(a), see Zeitchick Estate v. Zeitchick, 215 Pa.Super. 106, 108, 257 A.2d 371, 372 (1969); Seaboard Industries v. Monaco, 53 Pa.D. & C.2d 321, 324-25 (1971); 3 H. Goodrich & P. Amram, Standard Pennsylvania Practice: Procedural Rules Service with Forms § 3140(b)-1, at 311-12 (1st ed. 1960) (hereinafter cited as "Goodrich-Amram"); 9 H. Goodrich & P. Amram, Standard Pennsylvania Practice: Procedural Rules Service with Forms § 3140(b): 1.1, at 461-62 (2d ed. 1977) (John E. Keefe, Jr., managing editor) (hereinafter cited as "Goodrich-Amram 2d").10 If the exemption claim is not raised by preliminary objection, it can be raised at any other time. See Pa.R.Civ.P. 3142(c).11

If the garnishee fails to notify the debtor, it subjects itself to potential double liability. As the Philadelphia Court of Common Pleas stated over a hundred years ago, "(i)f from carelessness, or neglect to employ counsel, or any other cause, he pays the wrong party before the contest is judicially determined, he cannot justly complain if he is compelled to pay the right party when he has been ascertained by the judgment of the court." Paul v. Johnson, 9 Phila. 32, 34 (1871); see also Badler v. L. Gallarde Sons Co., 387 Pa. 266, 270, 127 A.2d 680, 683 (1956); Mulvihill v. Philadelphia Saving Fund Society, 117 Pa.Super. 455, 461, 177 A. 487, 489 (1935); Loose Estate, 47 Pa.D. & C.2d 407, 410-11 (Berks Cty. 1968). Rule 3141(a) strongly implies that this liability survives if the garnishee fails to notify the debtor promptly of the writ and to provide her with answers to the interrogatories. See 3 Goodrich-Amram § 3141(a)-1, at 316-17; 9 Goodrich-Amram 2d § 3141(a):1, at 467-68. If the garnishee bank acquiesces in the attachment and pays the proceeds to the creditor, and if the debtor has legitimate defenses or exemptions to assert, the bank itself will bear the loss. It therefore has a very strong incentive to notify the debtor promptly, obviating its duty to defend. The majority tacitly concede that this procedure is adequate to notify the debtor of the garnishment. I go even further and emphasize the inherent incentive placed on the garnishee to fulfill its duty of "unusual diligence and caution." Paul v. Johnson, 9 Phila. at 34.

The promptness with which the debtor is notified affords her the opportunity to be heard "at a meaningful time" if the procedure for asserting and litigating exemption claims is sufficient under due process standards. The majority argue that this "debtor's interests demand an especially prompt hearing." Maj. op. at 59. Because the Pennsylvania Rules of Civil Procedure demand prompt notice of the attachment, a debtor in Mrs. Finberg's financial situation will be able to obtain legal representation, perhaps through Community Legal Services, Inc., and then pursue the extraordinary remedies provided by Pennsylvania to meet her extraordinary situation. The majority commit a fatal error by assuming that the rules allow no flexibility to handle Mrs. Finberg's circumstances. A proper analysis of the rules indicates that sufficient flexibility does exist for a debtor, who has obtained the prompt notice outlined above, to assert and litigate her exemptions "at a meaningful time."

The majority's analysis of the procedures for claiming exemptions contradicts the basic schema of the Pennsylvania execution rules and also contradicts the respected interpretations of Philip Werner Amram and Professor A. Leo Levin, as well as the interpretation of the Pennsylvania Procedural Rules Committee, which drafted the rule for the Pennsylvania Supreme Court. The majority's interpretation of rule 3123 suggests that the Pennsylvania Supreme Court created no specific procedure for asserting a debtor's exemption in attachment execution proceedings. This view ignores the adoption by the Pennsylvania Supreme Court of a complete set of execution rules, Pa.R.Civ.P. 3101-3250, on March 30, 1960, effective November 1, 1960, under the title "Enforcement of Judgments for the Payment of Money." The new rules suspended ninety-one separate statutory provisions and formed one cohesive body of execution law. Of all the separate rules, only one, rule 3123, is specifically labelled "Debtor's Exemption."

The Pennsylvania Supreme Court did not enact state-wide procedural rules in vacuo ; it provided explicit direction for their application and construction. The rules of construction that I find particularly applicable here are Pa.R.Civ.P. 126-28. In rule 126, the court mandated liberal construction "to secure the just, speedy and inexpensive determination of every action or proceeding to which (the rules) are applicable." Rule 127(c)(6) requires courts construing a rule to consider "the consequences of a particular interpretation ...." Most important to this case, however, is rule 128(c), which states that "the Supreme Court (of Pennsylvania) does not intend to violate the Constitution of the United States or this Commonwealth ...." Because the majority ignore these binding rules of construction, they reach a result quite at odds with the result that I predict a Pennsylvania court would reach. The misconstruction in this case is far more significant than in most situations in which a federal court must predict state law. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1286-87 (3d Cir. 1979) (statement of Aldisert, J.). In this case, the misconstruction results in a federal declaration that an entire state procedural schema is unconstitutional.

To understand the operation of specific provisions of the Pennsylvania Rules of Civil Procedure, it is necessary to comprehend their basic schema. The chairman of the Pennsylvania Civil Procedural Rules Committee is Philip Werner Amram, a nationally and internationally distinguished scholar of civil procedure.12 Mr. Amram states that each of the five kinds of attachment proceedings under Pennsylvania law draws its basic structure from the foreign attachment rules. 2 Goodrich-Amram § 1251-3; 4 Goodrich-Amram 2d § 1251:3. The attachment execution rules at issue here must be understood against the background of the foreign attachment rules. 2 Goodrich-Amram § 1251-1; 4 Goodrich-Amram 2d § 1251:1.

Under the foreign attachment rules, exempt property "is by definition not caught by the attachment. To turn this property over to the plaintiff is to give him something to which he is not entitled by law." 2 Goodrich-Amram § 1268(a)-1, at 152; see 4 Goodrich-Amram 2d § 1268(a):1, at 217. The garnishee retains responsibility for exempt property. A judgment debtor's failure to claim his exemption does not permit the garnishee to release exempt property to the judgment creditor. Thus, under Pennsylvania practice a debtor's exemption rights are protected and the garnishee must not release exempted funds to the plaintiff creditor without first notifying the debtor of the garnishment. See Pa.R.Civ.P. 1268(b).13 There is significant protection provided for defendant's exemption even before he or she has notice of the attachment.

Because the garnishee remains liable for wrongful disposition of the property until a court has ordered it to relinquish the property, see 2 Goodrich-Amram § 1268(a)-1; 4 Goodrich-Amram 2d § 1268(a):1, and because the judgment debtor usually receives notice of the garnishment from the garnishee, see part IV B supra, the debtor can assert her exemptions and obtain a factual determination of their validity before the creditor acquires the property. See Zeitchick Estate, 215 Pa.Super. at 109, 257 A.2d at 373. My reading of rule 3123, in light of the rules of construction and common sense, suggests that a judgment debtor is entitled to as much latitude as necessary, limited of course by reason, to assert legitimate exemptions. A contrary reading of the rule would not only subject debtors to loss of exempted property, thereby frustrating legislative intent, but would also impose an unjust burden on garnishees, who would be liable for relinquishing exempt property without the prospect of a definitive adjudication of the exemption's merit prior to release of the property. Both results approach absurdity, and I decline to join an interpretation allowing them.

The Pennsylvania rules not only allow a hearing in which the debtor may assert exemptions. They also demand that, in the extraordinary circumstances present here, the hearing be prompt. The majority's failure to understand the procedural schema, and rule 312314 in particular, is the source of one of my most serious disagreements with them. They interpret rule 3123 as inapplicable to garnishment of bank accounts, reasoning that the sheriff never "holds" the bank account in preparation for a judicial sale. See maj. op. at 60-61.

The fatal flaw in the majority's analysis of rule 3123 is their assumption that the sheriff has no role in the garnishment of a bank account. That assumption is simply incorrect. In most cases of garnishment, the sheriff must deliver the garnishee summons to the garnishee. Indeed, in this case the creditor directed a writ of execution to the sheriff of Philadelphia County, requiring him "to attach the property of the defendant(s) not levied upon in the possession of: Philadelphia National Bank." Writ of Execution dated October 25, 1977, Sterling Consumer Discount Co. v. Finberg, No. 5678 (Phila. Cty., May Term, 1977). It is certainly not inconceivable that a debtor desiring to claim an exemption could approach the sheriff and have the garnishment order dissolved. Indeed, decisions handed down by Pennsylvania courts before the current rules were drafted explicitly sanction the debtor's assertion of his garnishment exemption claim to the sheriff who deliver