text:
    Joseph A. ALBERTI, et al., Plaintiffs, v. GENERAL MOTORS CORPORATION, Defendant.
    Civ. A. No. 84-0888.
    Misc. No. 84-0310.
    United States District Court, District of Columbia.
    Jan. 16, 1985.
    See also D.C., 600 F.Supp. 1024.

      Lowell E. Sachnoff, Sachnoff, Weaver & Rubenstein, Chicago, Ill., Timothy J. Bloomfield, Dunnells, Duvall, Bennett & Porter, Washington, D.C., for plaintiffs.
    Jeffrey S. Davidson, Kirkland & Ellis, Washington, D.C., for defendant.
   MEMORANDUM AND ORDER

JACKSON, District Judge.

This purported class action is brought by purchasers of 1980 General Motors Corporation X-cars to recover damages for breach of warranty for the allegedly defective braking system with which the vehicles were equipped when first offered for sale to the public. The matter is presently before the Court on motion of defendant General Motors Corporation (“GM”) to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). For the reasons set forth below, defendant’s motion will be denied.

GM contends that plaintiffs’ complaint falls short of the jurisdictional prerequisites of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301 et seq. (“MagnusonMoss” or “the Act”), for such actions, as class actions, in federal courts, in that there are not at least 100 plaintiffs named who can plead valid warranty claims. See 15 U.S.C. § 2310(d)(3)(C). Defendant maintains that 72 of the 127 named plaintiffs (or plaintiff-couples) do not allege that they experienced any difficulty with their automobiles during the 12 month/12,000 mile express written warranty extended by GM to purchasers of its 1980 X-cars, and that the implied warranty claims of 51 of the plaintiffs do not satisfy the privity-of-contract rules of their several states with respect to their right to maintain such an action against GM. Moreover, GM argues, an indeterminate number of plaintiffs have not properly alleged, as required by 15 U.S.C. § 2310(e), that GM has been afforded “reasonable opportunity to cure” the alleged defect before suit was brought. Finally, the argument concludes, as the federal claims fall, so also must the pendent state common law claims for lack of an independent basis of federal jurisdiction, thus requiring that the complaint be dismissed in its entirety.

The Magnuson-Moss Act creates a federal remedy for aggrieved purchasers of consumer products. However, the Act severely limits the consumers’ access to a federal forum by providing that such claims are not cognizable in federal court:

(A) If the amount in controversy of any individual claim is less than the sum or value of $25;
(B) If the amount in controversy is less than the sum or value of $50,000 (exclusive of interest and costs) computed on the basis of all claims to be determined in the suit; or
(C) If the action is brought as a class action, and the number of named plaintiffs is less than one hundred.

15 U.S.C. § 2310(d)(3). The purpose of such strict jurisdictional limitations, it appears, was to prevent flooding the federal courts with trivial consumer complaints overblown into federal class actions. Walsh v. Ford Motor Co., 588 F.Supp. 1513, 1520 (D.D.C.1984) (citing H.R.Rep. No. 93-1107, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News at 7702); Novosel v. Northway Motor Car Corp., 460 F.Supp. 541, 543 (N.D.N.Y.1978).

GM does not, at least at the moment, dispute that the complaint as drawn fully satisfies the first two requirements set out in subparagraphs (A) and (B) of section 2310(d)(3). It asserts, however, that plaintiffs’ number must be reduced by those whose braking problems first manifested themselves after the expiration of the manufacturer’s express warranty limits, and, because the implied warranty claims available under the Act are defined as those arising pursuant to “an implied warranty arising under state law,” 15 U.S.C. § 2301(7), by those whose states’ privity requirements would place GM beyond the reach of their implied warranty claims.

Defendant places chief reliance on Walsh v. Ford Motor Co., supra, in support of its argument that plaintiffs have failed to assemble the 100 or more of their kind having viable warranty claims necessary to jurisdiction under the Act. In Walsh the court held that, in order to present a claim to be validly counted toward the Magnuson-Moss Act’s minimum numerical requirement for class action status, each alleged defect must have been discovered within the express warranty period prescribed by the manufacturer. 588 F.Supp. at 1536. To hold otherwise, the court reasoned, would be to enable a “latent defect” theory to be used to circumvent altogether the manufacturer’s limits on its express warranty and “place an undue burden on the manufacturer. [It] would, in effect, be obliged to insure that a vehicle it manufactures is defect-free for its entire life.” Id.; accord, Abraham v. Volkswagen of America, Inc., 103 F.R.D. 358, 362 (W.D.N.Y.1984).

The reasoning of Walsh is not, however, applicable to the present case. Plaintiffs here contend that GM knew the X-car braking system of its X-cars concentrated excess braking force on the rear axle at the time the vehicles left the assembly line but nevertheless failed either to rectify the situation or to disclose it to their purchasers. Complaint ¶¶ 8, 12-16. Thus, plaintiffs charge, the defect did not remain “latent” until the vehicles first exhibited control problems for the drivers, but, rather, was patent — at least to GM — in the sense that, as each automobile was sold, it exposed the owner (and the public) to the potential of a loss of vehicle control. It was the time of the sales, therefore, that plaintiffs maintain the loss for which they make claim here — the diminished value of the cars they purchased — was incurred, for it was then that GM broke its warranty that the brakes would function safely, and that the automobiles were merchantable and fit for the purpose of providing the ordinary transportation plaintiffs expected of them.

It appearing, therefore, that there are at least 100 plaintiffs here who, as purchasers of new X-cars, allege viable express warranty claims, it becomes unnecessary to decide, for purposes of the instant motion, whether certain implied warranty claims which arguably fail to meet state privity-of-contract rules must be subtracted in calculating the required numerosity of the plaintiff class representatives. For, as the court stated in Walsh:

Although ... claims for breach of implied warranty are separate and distinct causes of action, [the court] fails to see why that would require a plaintiff to assemble 100 or more individuals on each claim, before jurisdiction would take hold.
******
The statute definitively requires that there be 100-named plaintiffs per “class action” and not per “Count.”

588 F.Supp. at 1538. See also, Abraham v. Volkswagen of America, Inc., supra, at 361.

For the foregoing reasons, therefore, it is, this 16th day of January, 1985,

ORDERED, that defendant’s motion to dismiss is denied.

      . Compare Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982), where, in determining the rights and obligations of insurors regarding insured manufacturers' liability for asbestos-related diseases, the Court of Appeals held that both exposure to asbestos fibers and manifestation of the disease many years later triggered coverage under the various policies, notwithstanding the finite limits of the policies themselves.

      . Similarly, plaintiffs' allegation that GM knew of the alleged defects at the time of sale disposes of defendant’s argument that plaintiffs have failed to meet the "opportunity to cure” requirement of 15 U.S.C. § 2310(e).

        The existence of any systemic deficiency of the braking mechanism and the extent of GM’s knowledge thereof are, of course, factual questions lying at the heart of this dispute. While the burden of proof on plaintiffs is substantial, the allegations of the complaint are adequate to raise disputed issues of fact, making dismissal under Fed.R.Civ.P. 12(b)(1) improper at this time. See Land v. Dollar, 330 U.S. 731, 735, 67 S.Ct. 1009, 1010, 91 L.Ed. 1209 (1946); Gordon v. National Youth Work Alliance, 675 F.2d 356, 362-63 & n. 13 (D.C.Cir.1982).


source: Caselaw Access Project

author: MORAN, District Judge.

license: Public Domain

text:
    Kareem FAHEEM-EL, on his own behalf and on behalf for all others similarly situated, Plaintiff, v. Paul KLINCAR, Chairman, Illinois Prison Review Board, Michael Lane, Director, Illinois Department of Corrections, Harold Thomas, superintendent, Adult Community Services, Phillip Hardiman, Director of the Cook County Jail, Defendants.
    No. 84 C 2561.
    United States District Court, N.D. Illinois, E.D.
    Dec. 4, 1984.

      Thomas Peters, Murphy, Peters, Davis & O’Brien, Chicago, Ill., for plaintiff.
    Thomas A. Ioppolo, Asst. Atty. Gen., Chicago, Ill., for defendants.
   MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiff Kareem Faheem-el brought this action under 42 U.S.C. § 1983 and 28 U.S.C. § 2254 on his own behalf and on behalf of all others similarly situated. He attacks the parole revocation procedures in Illinois. Specifically, he attacks the adequacy of the preliminary parole revocation hearings, the constitutionality of the state’s refusal to grant bail or service credit to accused parole violators, and the timeliness of final parole revocation hearings. Before the court are plaintiff’s motions for class certification and a preliminary injunction.

I. Background

Plaintiff was sentenced in 1973 to a term of 30-90 years imprisonment for murder. He was paroled from Stateville Correctional Center on October 5, 1983. On January 23, 1984, he was arrested for the alleged possession of cocaine and sent to Cook County Jail. He was served on February 7, 1984, with a notice charging violation of his parole and a preliminary revocation hearing was held on March 1, 1984. Plaintiff alleges that in his preliminary parole revocation hearing no prosecution witnesses were produced for cross examination. He claims that the preliminary hearing officer read silently from his file and allowed plaintiff to make a statement, but refused to allow plaintiff to offer testimony from an eyewitness to the events leading to his arrest. The hearing officer found against plaintiff. Plaintiff was incarcerated and, as a parolee accused of violating his parole, was not entitled to bail. See People ex rel. Tucker v. Kotsos, 68 Ill.2d 88, 11 Ill.Dec. 295, 368 N.E.2d 903 (1977). No final parole revocation hearing has been held and plaintiff has been notified that none will be held until disposition of the pending criminal case.

This action was brought in four counts. Count I seeks withdrawal of the parole violation charge or, in the alternative, an immediate final revocation hearing, an immediate bond hearing, and damages. Count II seeks compensatory and punitive damages. Count III seeks an immediate final parole revocation hearing, credit against plaintiffs parole term for each day spent incarcerated while waiting for the final parole revocation hearing, and both compensatory and punitive damages. Count IV, the class action count, seeks prompt final revocation hearings, procedurally proper preliminary parole revocation hearings, parole time credit for all incarcerated parolees awaiting a final parole revocation hearing, release of all parolees not offered bail hearings, and costs and attorneys’ fees.

As this description makes apparent, this action is a multifaceted class attack upon Illinois parole revocation procedures. Unfortunately, the breadth of the action has not been matched by the depth of the briefs, and this court has, accordingly, in several instances and with some trepidation, analyzed the issues in a manner not discussed or only briefly discussed by the parties.

II. Preiser v. Rodriguez

Before the court delves into the issues presented by plaintiff, it must determine how to characterize this action. Plaintiff, in his complaint, labels it as “a 1983 action and a habeas corpus action.” He claims his constitutional rights were violated by the state. He also seeks, at least in part, procedures that could hasten his release and, if those procedures are not forthcoming, a writ of habeas corpus requiring his release. The action, as defined by plaintiff, is a hybrid. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court held:

[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.

Id. at 500, 93 S.Ct. at 1841. That, of course, raises exhaustion issues, issues raised by the defendants but never addressed by plaintiff.

When plaintiff seeks his release, his action must be brought as a habeas action. Id. at 486, 93 S.Ct. at 1834. When he seeks addition of service credits, the action must be brought as a habeas action. Id. Additionally, when plaintiff seeks reconsideration of a decision that could result in his release, the claim must be brought within a habeas action. See Smallwood v. Missouri Board of Probation and Parole, 587 F.2d 369 (8th Cir.1978) (reconsideration of parole denial only properly brought as habeas). Plaintiff here attacks the procedural validity of a hearing that has already been held. He also seeks parole time credit already allegedly earned and challenges the state’s failure to give him a prompt final revocation hearing. Many of plaintiff’s claims, therefore, must be brought by a habeas petition.

Plaintiff’s claims for damages or prospective relief, however, can be brought concurrently under sec. 1983. See Wolff v. McDonnell, 418 U.S. 539, 554-55, 94 S.Ct. 2963, 2973-74, 41 L.Ed.2d 935 (1974); Preiser v. Rodriguez, 411 U.S. at 499 n. 14, 93 S.Ct. at 1841 n. 14. See also Martin v. Strasburg, 689 F.2d 365 (2d Cir.1982). As the court said in Preiser v. Rodriguez, the requirement that certain claims be brought by plaintiff under federal habeas corpus “in no way precludes him from simultaneously litigating in federal court, under sec. 1983, his claim” not cognizable in a habeas action. 411 U.S. at 499 n. 14, 93 S.Ct. at 1841 n. 14. The court must, then, in effect divide up this action, parceling all the claims falling under the rubric of Preiser v. Rodriguez into a habeas action and all outside the scope of that decision into a sec. 1983 action. This division is necessitated by the strong federal policy of requiring exhaustion of state remedies before addressing habeas claims. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Preiser v. Rodriguez, 411 U.S. at 490, 93 S.Ct. at 1836.

In Count I plaintiff seeks withdrawal of his parole violation charge. This, in effect, is an attack on his detention pursuant to the parole violation charge, as the withdrawal would lead to his immediate release. That claim, accordingly, must be brought in a habeas action. See generally, Morrissey v. Brewer, supra. The request in Count I for a bond hearing and a prompt final revocation hearing seeks prospective relief and, therefore, can remain in the sec. 1983 action. See Wolff v. McDonnell, 418 U.S. at 554-55, 94 S.Ct. at 2973-74. The claims for damages and fees are also the stuff of sec. 1983 actions, not a habeas petition. Count II, seeking only damages, also remains. Count Ill’s prayer, for an award of good time credit for time already spent, is properly a habeas claim. A future final revocation hearing; damages, costs and attorneys’ fees; and, arguably, prospective awards of good time credit, may properly be sought in the sec. 1983 action.

Count IV’s class allegations do not require that claims cognizable only in a habeas action be dismissed. Habeas claims can be maintained as representative actions, see Bijeol v. Benson, 513 F.2d 965 (7th Cir.1975); also Martin v. Strasburg, 689 F.2d 365 (2d Cir.1982); United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir.1974), cert. denied, 421 U.S. 921, 95 S.Ct. 1587, 43 L.Ed.2d 789 (1975), though restricted in scope and availability. See Bijeol v. Benson, supra. The claims for prospective relief within Count IV are not properly within the habeas claim, see Martin v. Strasburg, 689 F.2d at 374; Smallwood v. Missouri Board of Probation and Parole, 587 F.2d at 371, and thus can remain in the sec. 1983 action. The requests in Count IV for an award of good time credits already allegedly earned and for release, however, are properly brought in a habeas action.

Before determining whether the habeas claims brought in the complaint can be so maintained, however, the court must now determine whether plaintiff has wholly exhausted his state remedies before bringing the habeas claims in this action. Defendants contend that plaintiff has not exhausted his state remedies and the court agrees. The Supreme Court of Illinois has held that “mandamus will lie to enforce the accused parole violator’s right to a reasonably prompt final revocation hearing.” People ex rel. Tucker v. Kotsos, 68 Ill.2d 88, 99, 11 Ill.Dec. 295, 300, 368 N.E.2d 903, 908 (1977). See People ex rel. Johnson v. Pate, 47 Ill.2d 172, 177, 265 N.E.2d 144, 147-48 (1970). Mandamus is a proper route to compel public officials to comply with statutory or constitutional duties. Gordon v. Department of Transportation, 109 Ill.App.3d 1071, 1075, 65 Ill.Dec. 589, 592, 441 N.E.2d 904, 907 (2d Dist. 1982); Overend v. Guard, 98 Ill.App.3d 441, 443, 53 Ill.Dec. 940, 942, 424 N.E.2d 731, 733 (4th Dist.1981). It is, consequently, also the proper route to mandate a new preliminary revocation hearing with proper due process safeguards, and to seek the award of already earned parole time credits. This is especially so in light of the fact, as discussed, infra, that the Morrissey safeguards sought by plaintiff are mandated by the Parole Board’s own rules. See Illinois Prisoner Review Board, Rules Governing Parole, at 13. Should a plaintiff find a request for a hearing within a reasonable time disregarded, or mandated procedures not followed, “it would appear to be an appropriate circumstance for trial court relief under a writ of mandamus directing the parole and pardon board to comply with the provisions of its own [rules].” People ex rel. Johnson v. Pate, 47 Ill.2d at 177, 265 N.E.2d at 148.

It is not clear that all plaintiff’s habeas claims could be addressed through mandamus, and possibly seeking mandamus for some of the claims might be futile. Futile acts are not required to satisfy the exhaustion requirement. See generally Heirens v. Mizell, 729 F.2d 449, 457 (7th Cir.1984). But a mandamus action seeking a preliminary hearing consistent with due process, or a prompt final revocation hearing, or the award of improperly denied good time credits would not necessarily have been futile and exhaustion is required. Because at least some of the claims were not exhausted, the court must dismiss the habeas claims for failure to exhaust. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); United States ex rel. Clauser v. Shadid, 677 F.2d 591, 594 (7th Cir.1982). The sec. 1983 claims, however, need not suffer the same fate. “If a prisoner seeks both release from confinement and damages or injunctive relief in an action under sec. 1983, the court may properly dismiss the former claim while maintaining the latter.” Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir.1984). Accord Smallwood v. Missouri Board of Probation and Parole, 587 F.2d at 371.

III. Class Certification

Because some of the class-based claims in Count IV survive, the court must decide the motion for class certification. The class sought to be certified can be described as all persons who are presently, or will be in the future, incarcerated for parole violations without the opportunity for a proper preliminary parole revocation hearing, a prompt final parole revocation hearing, or an opportunity for release on bail pending a final parole revocation hearing. The question presently before the court is whether this case is suitable for classwide determination. Before addressing the Rule 23 considerations, the court must address the Article III requirements of mootness and standing.

A. Article III

Article III of the Constitution requires that those who seek to invoke the jurisdiction of the federal courts satisfy the threshold requirement of alleging an actual case or controversy. Parties are required to show a personal stake in the outcome to “assure that concrete adverseness which sharpens the presentation of issues” necessary for proper resolution of constitutional questions, Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Plaintiffs must show more than an abstract injury; they must show they have sustained or are immediately in danger of sustaining a direct injury which is real and immediate rather than conjectural or hypothetical. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-2, 103 S.Ct. 1660, 1664-65, 75 L.Ed.2d 675 (1983).

In the present case, plaintiff is currently incarcerated as an alleged parole violator. He cannot, however, challenge the fact of his present incarceration in this action because he has not properly exhausted his state mandamus remedies. Neither can he challenge the adequacy of his preliminary revocation hearing because that hearing has already occurred and such a claim is appropriately brought within a habeas action. Thus, the injunction he seeks regarding issues in the habeas action cannot salve his present wounds with respect to those issues. That raises a standing question. In addition, plaintiff’s criminal case will eventually be decided, resulting either in his release or a valid incarceration on the criminal charge. And that raises a mootness question. These two questions, interrelated as they are, must be considered.

The Supreme Court has created a two-pronged mootness investigation. First, a court must determine whether the parties have a legally cognizable claim; that is, whether the action is still alive. See United States Parole Commission v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980); Lewis v. Tully, 96 F.R.D. 370 (N.D.Ill.1982). In Lewis, for example, Judge Marshall certified a class of all persons held in custody within Cook County after their discharge by a judge. Though the complained-of incarcerations lasted only a few hours, the court found that because members of the class were continually being illegally detained a live controversy existed. Id. at 373. In the present case plaintiff is currently incarcerated. Other members of the class are presently incarcerated or will also be incarcerated pursuant to Illinois law. As demonstrated in the depositions, the Cook County Correctional Center has a definite policy not to allow witnesses, either for presentation or cross examination by plaintiff. Final revocation hearings are being delayed until trial. Parole violators are not allowed bail. Incarcerations will continue without allegedly required due process precautions. A live case exists.

The second prong of the mootness test — as analyzed by the courts in Geraghty and Lewis — is where the plaintiff retains “a personal stake” in the outcome of the litigation. See Geraghty, supra, 445 U.S. at 396, 100 S.Ct. at 1208. Generally, in a class action, the class representative at the time of class certification must have Article III standing. When the claim, however, is considered “capable of repetition yet evading review,” the class litigation can continue despite the representative party’s loss of a personal stake in the outcome. In Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), for example, a case dealing with pretrial detentions and, consequently, a time frame generally identical to that in the present suit, the court found a class action permissible even though the representative parties no longer had an interest in the suit. The court wrote:

Pretrial detention is by nature temporary, and it is not unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly “capable of repetition, yet evading review.”

Id. at 110, n. 11, 95 S.Ct. at 861, n. 11. The court in Gerstein also placed stock in the “constant existence of a class of persons suffering a deprivation.” Id. In Lewis, the court certified a class, the members of which were detained only for short intervals and had no expectation of being further detained. The class was allowed despite the fact that the representative parties no longer had a live dispute. As the court stated in Geraghty, “when the claim on the merits is ‘capable of repetition, yet evading review,’ the named plaintiff may litigate the class certification issue despite loss of his personal stake in the outcome of the litigation.” 445 U.S. at 398, 100 S.Ct. at 1209. See also Schall v. Martin, — U.S. -, 104 S.Ct. 2403, 2405, n. 3, 81 L.Ed.2d 207 (1984) (citing Gerstein v. Pugh, to allow class of juvenile pretrial detainees).

Though the court finds no mootness problem, the issue of standing still needs to be addressed. In City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the court seemed to put a limit on the “capable of repetition” doctrine by stating that Lyons’ claim “remains to be litigated in his suit for damages; in no sense does that claim evade review.” Id. at 109, 103 S.Ct. at 1669. The present action also seeks damages. The court in Lyons, however, apparently did not create a rigid rule requiring that a plaintiff seek only injunctive relief to fit within the “capable of repetition” doctrine. Instead, the court held that to allow standing under that doctrine plaintiff must make a reasonable showing that he will again be subject to the alleged illegality. In Lyons, such proof required evidence that (1) the plaintiff would again be in the same situation; and (2) that defendants, acting pursuant to a state policy, would again act in violation of plaintiff’s constitutional rights. Id. at 105-6, 103 S.Ct. at 1666-67.

,In the present case plaintiff can make such a showing. In the evidence presented plaintiff showed that, at least at the Cook County Correctional Center, defendants have a policy of forbidding the presentation or cross examination of witnesses at preliminary parole revocation hearings. Defendants also have a policy of not holding final revocation hearings until after disposition of the criminal trial. Finally, the state has a policy of refusing to allow bail for those accused of parole violations. There is also a strong possibility that plaintiff again will be subject to the procedures complained of in this action. If plaintiff wins his criminal trial, or his final parole revocation hearing, he will again be on parole. Any alleged violation, real or imaginary, will again subject him to potentially unconstitutional procedures. The Supreme Court accepted the estimate that 35 per cent to 45 per cent of parolees were subjected to revocation and return to prison., See Morrissey v. Brewer, 408 U.S. at 471, 92 S.Ct. at 2593. An even greater number comes in contact with the parole revocation procedures without eventually again ending up in prison. Thus, there appears to be a good chance that plaintiff will, in the future, be subject to the Illinois procedures complained of. The Court has not required certainty that plaintiff will again be subject to these procedures, only a “credible threat.” See Kolender v. Lawson, 461 U.S. 352, 355 n. 3, 103 S.Ct. 1855, 1857 n. 3, 75 L.Ed.2d 903 (1983) (a citizen stopped 15 times pursuant to statute has a “credible threat” he will be detained again); Steffel v. Thompson, 415 U.S. 452, 458-60, 94 S.Ct. 1209, 1215-16, 39 L.Ed.2d 505 (1974) (two warnings sufficient for standing to challenge statute). Plaintiff faces a credible threat that he will again be challenged. The requirements in Lyons appear to be met.

Further, Lyons did not involve a class action. As the court in Lewis v. Tully pointed out, there are significant differences between an individual action, as existed in Lyons, and a class action, as existed in Lewis. Lewis v. Tully, 99 F.R.D. 632, 638-39 (N.D.Ill.1983). In Lyons, the court held that the live controversy ended when application of the chokehold on plaintiff was ended. In Lewis and the present case, a controversy continues to exist as the class members continue to be incarcerated for alleged parole violations.

Lyons, however, has convinced a court in this district to find no standing in a case remarkably similar to the present one. In Trotter v. Klincar, 566 F.Supp. 1059 (N.D.Ill.1983), plaintiff, in a class action, attacked the procedural validity of his preliminary parole revocation hearing. The court, citing Lyons, found no standing. In Trotter, however, plaintiff had already been convicted and was therefore no longer on parole. Id. at 1062. The court found there was little likelihood of plaintiff again being subject to the allegedly unconstitutional preliminary hearing procedures. Id. Trotter is distinguishable from the present case. In the present case plaintiff is still currently incarcerated without having had a final revocation hearing; thus his case is still alive. In addition, this court, in disagreement with the court in Trotter, finds that plaintiff has a good chance of again being subjected to the complained-of procedures, as discussed previously. Finally, the court in Trotter failed to acknowledge the difference between individual actions as in Lyons, and class actions. The court finds that standing does exist. Article III is not a bar to certification of this class.

B. Rule 23

Having determined that Article III permits the certification of a class, we must consider the requirements of Rule 23. Initially, the court notes that this would be a 23(b)(2) class because plaintiff seeks injunctive and declaratory relief generally applicable to the class as a whole. The burden of proving suitability of a class is on plaintiff. Eggleston v. Chicago Journeymen Plumbers Local Union No. 130, 657 F.2d 890, 895 (7th Cir.1981). The court finds the Rule 23 requirements satisfied in this case.

Rule 23(a) lists four prerequisites for an action to proceed as a class. First it requires the class to be so numerous that joinder is impracticable. It is not clear how large this class actually is, but, including all persons now on parole or incarcerated for alleged parole violations pending a final parole revocation hearing, it is apparently too large for joinder. For example, there were 3,442 parole revocation cases in Illinois in 1983. Though the class size is indeterminate, the numerosity requirements are met. See Grossman v. Waste Management, Inc., 100 F.R.D. 781, 785 (N.D.Ill.1984).

The Rule also requires common issues of law or fact. There must be at least one common element between all members. See Borowski v. City of Burbank, 101 F.R.D. 59, 62 (N.D.Ill.1984). Common questions of fact exist concerning the procedures actually followed by the state, at least in defined geographical areas, as more fully discussed below. Common questions of law exist concerning the constitutionality of the state’s handling of those accused of violating their parole.

The third requirement, somewhat linked to the second, is that claims or defenses of the representative parties must be typical. The Seventh Circuit has held that typicality requirements are satisfied if all claims arise from the same event or practice or course of conduct. De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983). Here the alleged unconstitutional course of conduct is the basis for the claims of all the class members.

Finally, plaintiff must be found to be a fair and adequate class representative. Plaintiff, in the present case, has been subjected to all the practices he claims are unconstitutional. He is currently incarcerated, possibly as a result of these practices. The adequacy of the class representative “turns on the proposed representative’s interest in the outcome and the capability of his counsel. We think that plaintiff's past injury, as a result of the alleged practice, suffices to establish that he is a proper representative.” Lewis v. Tully, 99 F.R.D. at 644.

While class certification is warranted, the scope of the appropriate class depends on the nature of the claim. Plaintiff was arrested in Cook County and his preliminary parole revocation hearing was held at the Cook County Jail. He attacks practices at that facility which are, on the basis of the present record, violative of the Illinois Prisoner Review Board’s Rules Governing Parole. Nothing in the present record suggests that the hearing procedures followed at the Cook County Jail are those followed elsewhere in the state, or that there is, elsewhere, any departure from the promulgated Rules Governing Parole. Plaintiff is presently incarcerated in a Department of Corrections facility in this district, awaiting trial in Cook County and a subsequent final parole revocation hearing. The record in support of class certification is remarkably sparse on the length of time a diligent defendant may be expected to remain in prison pending trial, and therefore a subsequent final parole revocation hearing on a Cook County charge. There is virtually nothing to indicate the expectable length of time between charge and hearing elsewhere in the state. The requisite commonality and typicality on those two issues has not been demonstrated beyond Cook County, and the class, on those two issues, is, accordingly, confined to persons subject to Cook County charges. That does not mean, however, that the practical effect of relief to a Rule 23(b)(2) class so restricted would not in large measure inure to the benefit of others in the state. See 3B Moore’s Federal Practice, pp. 23-298 and 23-299 (2d ed.). Finally, it appears undisputed that bail denial is mandated by state law, thus making a statewide class appropriate.

IV Preliminary Injunction

We turn, then, to plaintiff’s motion for preliminary injunction. Plaintiff raises three claims for injunctive relief: (1) defendants’ inadequate preliminary parole revocation hearing procedures; (2) defendants’ untimely final parole revocation hearings; and (3) defendants’ refusal to allow bond for accused parole violators.

In granting or denying a preliminary injunction, a court must examine four factors: (1) whether the plaintiff has at least a reasonable likelihood of success on the merits; (2) whether the plaintiff will have an adequate remedy at law or will be irreparably harmed if the injunction does not issue; (3) whether the threatened injury to the plaintiff outweighs the threatened harm the injunction may inflict on defendant; and (4) whether the granting of the preliminary injunction will disserve the public interest. Martin v. Helstad, 699 F.2d 387, 389 (7th Cir.1983); Moore v. Miller, 579 F.Supp. 1188, 1191 (N.D.Ill.1983). Plaintiff bears the burden of persuasion as to the granting of the preliminary injunction. Ciechon v. City of Chicago, 634 F.2d 1055, 1057 (7th Cir.1980).

1. Likelihood of Success on the Merits

(a) Preliminary Revocation Hearing

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court laid out the due process requirements for a preliminary parole revocation hearing.

[The minimum requirements of due process] include (a) written notice of the claimed violation of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revoking parole.

Id. at 489, 92 S.Ct. at 2604. The validity of the procedural safeguards have been acknowledged by the Illinois Prisoner Review Board in their rules governing parole. Those rules echo the requirements of Morrissey. For example, the rules state:

At the preliminary hearing, the parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. On request of the parolee, persons who have given adverse information on which parole revocation is to be based shall be made available for questioning in his presence.

Illinois Prison Review Board, Rules Governing Parole at 13.

Plaintiff alleges that he was denied the opportunity to present his own witnesses or cross examine adverse witnesses at his preliminary parole revocation hearing. In the depositions he presents, Philip Hardiman, Executive Director of the Cook County Department of Corrections, and Robert Guthrie, Parole Revocation Hearing Officer at Cook County Jail, testified to the policy forbidding the testimony of witnesses at preliminary parole revocation hearings. Mr. Hardiman stated that, for security reasons, witnesses were not allowed at hearings in the Cook County Jail. That is apparently so even if the preliminary hearing on the criminal charge rested on hearsay or there was no preliminary hearing at all. Mr. Guthrie testified that he was informed in 1983 that witnesses would not be allowed in the hearings for security reasons. Mr. Guthrie also stated that if a police report stated that a parolee had committed a crime, and the parolee denied it, the police report would carry more weight (Guthrie dep. at 29-31).

These policies are directly contrary to the teachings of Morrissey, and therefore violate due process. In addition, by being violative of the Board’s own rules, as they are, the appearance of arbitrariness is enhanced. See Lawrence v. Smith, 451 F.Supp. 179 (W.D.N.Y.1978). Defendants offer two defenses. First, defendants claim that they satisfied the Morrissey due process requirement by means of plaintiff’s preliminary hearing. Defendants have not presented evidence that plaintiff did in fact receive a preliminary hearing. Even if he did, it is far from clear that the preliminary hearing satisfied the Morrissey due process requirements, although it may well be that preliminary hearings often do satisfy the Morrissey dictates for a preliminary parole revocation hearing. Due process rights are severely limited in preliminary hearings. See People v. Blackman, 91 Ill.App.3d 130, 46 Ill.Dec. 524, 414 N.E.2d 246 (2d Dist.1980). In any event, the policy complained of extends to those class members whose parole was revoked without the initiation of criminal proceedings. The presence of a preliminary hearing for certain class members, therefore, does not obviate the constitutional violation.

Defendant also claims that the security interests claimed are strong enough to override the due process concerns of Morrissey. The court in Morrissey did permit restrictions upon confrontation for good cause. See Morrissey v. Brewer, 408 U.S. at 489, 92 S.Ct. at 2604. The court there, however, was concerned with the disclosure of the identity of informants and the consequent danger to the informants that could follow. Id. at 487, 92 S.Ct. at 2603. General security measures applicable to each hearing, rectified with assignment of a single guard (Hardiman dep. at 15), would not fall into this category. The defendants do not indicate how some examination and cross examination of witnesses at a preliminary parole revocation hearing poses security risks differing from those presented at a public trial, or why the rules governing the revocation hearings should be ignored. In light of the evidence presented, the court finds it likely that plaintiff will succeed on the merits of his claim regarding procedures followed within preliminary parole revocation hearings.

(b) Refusal to Allow Bond for Accused Parole Violators

At this time the court refuses to address this claim. The Supreme Court of Illinois has held the refusal to grant bail to be constitutional. See People ex rel. Tucker v. Kotsos, 68 Ill.2d 88, 11 Ill.Dee. 295, 368 N.E.2d 903 (1977). This issue is a difficult one, made even more so by the recent Supreme Court decision, Schall v. Martin, — U.S. -, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984), allowing pretrial detention of juveniles. Parolees, like juveniles, can be considered “always in some form of custody,” id. 104 S.Ct. at 2410, and it is not clear what effect this decision has on the issue. In its June 11, 1984 memorandum in this case, the court labeled defendants’ memorandum “cursory”. No additional briefing has been filed. The two paragraphs filed by defendants regarding this issue are not sufficient. Defendants are ordered to reply to plaintiff’s memorandum with a full discussion of the issue. Plaintiff can then respond. The decision on the issue awaits further briefing.

(c) Final Revocation Hearings

Plaintiff also challenges the practice of delaying final revocation hearings until after disposition of the underlying criminal action. In Morrissey, the court held that a final revocation hearing must be held within a reasonable time during incarceration. 408 U.S. at 488, 92 S.Ct. at 2603. The court stated that two months was not an unreasonable time. Id. Plaintiff alleges that in cases where a criminal violation is involved, Illinois currently waits until disposition of the underlying criminal action before holding a final revocation hearing. Plaintiff claims that such a delay is unreasonable. The Illinois policy is not an unusual one. See Merritt, Parole Revocation: A Primer, 11 Tol.L.Rev. 893, 900-04 (1980). In many cases the policy works to the favor of the parolee. See id. at 903; People v. Golz, 53 Ill.App.3d 654, 11 Ill.Dec. 461, 368 N.E.2d 1069 (2d Dist.1977).

The Seventh Circuit has discarded a per se rule regarding the maximum delay before initiation of a final parole revocation hearing in favor of a more flexible case-by-case analysis. See United States ex rel. Sims v. Sielaff, 563 F.2d 821, 828 (7th Cir.1977). The court in Sims held that the crucial aspect in determining whether a final parole revocation hearing was unconstitutionally delayed, in conformity with Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), was prejudice. The court in Sims held that the test laid out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), applying to speedy trial violations, was applicable to the timeliness of final revocation hearings. 563 F.2d at 828. See Hanahan v. Luther, 693 F.2d 629, 634-35 (7th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1013 (1983). In Barker, the court created a balancing test with four factors: the length of delay, the reasons for the delay, the defendant’s assertions of his rights; and prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. at 2192. Prejudice can be assessed in light of three separate interests: (1) the prevention of oppressive incarceration; (2) the minimization of anxiety for the accused; and (3) the limitation of impairment to the defense. Id. at 532, 92 S.Ct. at 2193. See Hanahan v. Luther, 693 F.2d at 634-35. In Hanahan, the court carefully applied the Barker criteria to a delay in a final parole revocation hearing. Such application in the present case is hampered substantially by class allegations.

i. As to length, the Illinois policy is not specific. The delay in holding a final revocation hearing can range anywhere from a minimal period, e.g., when a guilty plea is offered to the criminal charge, to a year or more. The Seventh Circuit has held that three months can be considered the outside limit of reasonableness, see United States ex rel. Sims v. Sielaff, 563 F.2d at 825, and that four months raises a due process question, see Hanahan v. Luther, 693 F.2d at 634. Thus, it appears that any delay of over three months can constitute a due process violation if the other factors show that such a finding is warranted.

ii. The reasons for delay are twofold. The respondents delay the hearing until after the trial. Plaintiff argues that Illinois has a 120-day speedy trial law, see Ill.Rev.Stat. eh. 38, § 103-5, and that any delays of the trial are attributable to defendant. That statute, however, allows an additional two months’ delay at the state’s discretion. See Ill.Rev.Stat. ch. 38, § 103-5(c). In addition, forcing a defendant to choose, if such is the ease, between a prompt chance to be released from incarceration or a well prepared defense to a criminal charge, complete with briefed motions, may well infringe sixth and fourteenth amendment rights. The state may delay the hearing for a substantial period solely to make the trial the main evidentiary event. On the other hand, as indicated in People v. Golz, supra, a defendant may well concur in, indeed welcome, making the criminal trial the main event, where the state’s burden of proof is beyond a reasonable doubt, in the reasonable belief that the state will accept the outcome of that trial as determinative of the revocation issue.

iii. A major question is whether plaintiff asserted his right, i.e., asked for a hearing. For the purpose of this litigation, the class can be divided into those that request a prompt hearing and those that do not. If a prompt hearing is not requested, whether for strategic or other reasons, it seems that the state’s interest in having the trial be the main evidentiary event can be vindicated without prejudice to the defendant. If a parolee requests a prompt hearing, however, that is a strong factor in determining whether a prompt final revocation hearing is warranted.

iv. Prejudice exists. Members of the class are presently incarcerated. Their incarcerations are not bailable and stem from the alleged parole violations. Delaying hearings severely prejudices defendants by requiring that they remain in jail until the hearings. The Seventh Circuit has held that a period of incarceration is cognizable prejudice, as indeed it is. See Blake v. Katter, 693 F.2d 677, 682 n. 4 (7th Cir.1982) (7 months).

We are left, then, with an open issue, of whether or not the state can refuse to grant bail, which has a substantial impact upon the prejudice suffered by alleged parole violators. For the present, however, that refusal is the law in this state. We are left, also, with very little factual development of the delay in hearings which a policy of awaiting trial results may cause. We do know, however, that a defendant who is incarcerated, who is denied bail, and who has in a timely manner sought a final parole revocation hearing, is entitled to be heard within three months from, at a minimum, his seeking that hearing. To that extent at least, the court finds that plaintiff will most likely prevail on the merits of his claim regarding the promptness of final revocation hearings.

B. Other Factors

The other factors for preliminary injunction can be dealt with quickly. Plaintiffs imprisonment, if constitutionally improper, constitutes irreparable harm. It is clear that money cannot make up for the loss of freedom inherent in such incarceration. As Justice Powell has written concerning pretrial detention effects on both society and the accused:

[The imprisonment of a parolee in a local jail] contributes to the overcrowing and generally deplorable state of those institutions. Lengthy exposure to those conditions “has a destructive effect on human character and makes the rehabilitation of the individual offender much more difficult.” At times the result may even be violent rioting. Finally, lengthy pretrial detention is costly. The cost of maintaining a prisoner in jail varies from $3 to $9 per day, and this amounts to millions across the Nation. In addition, society loses wages which might have been earned, and it must often support families of incarcerated breadwinners.
....
[T]he disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious.

Barker v. Wingo, 407 U.S. at 520-21, 532-33, 92 S.Ct. at 2187, 2193 (footnotes omitted). The cost to the state is minimal. An additional guard when witnesses are requested, and prompt revocation hearings, when requested, do not appear to be excessive burdens. As stated in Barker, when a person is unfairly incarcerated, the public pays a high price.

V. Conclusion

Preliminary relief is warranted to the extent discussed above. Plaintiff shall submit an injunctive order in conformity with this memorandum.

Finally, Kelvin Burton moves to intervene. While his situation is not identical to plaintiffs, as a parolee incarcerated for an alleged parole violation his situation is similar enough to allow intervention. Mr. Burton’s claims include questions of law and fact in common with plaintiff’s claims, satisfying the requirement of Rule 24(b)(2). Mr. Burton is permitted to intervene as to the class issues remaining in the sec. 1983 action. His motion for a temporary restraining order is denied for the reasons discussed.

For the foregoing reasons, the court certifies the classes as discussed above, and grants plaintiff’s motion for preliminary injunction as to the preliminary and final parole revocation hearings in accordance with the limitations within this memorandum and order. The motion for preliminary injunction on the availability of bail for alleged parole violation awaits further briefing. Plaintiffs claims properly brought in a habeas action are dismissed for failure to exhaust. Kelvin Burton’s motion to intervene is granted and his motion for a temporary restraining order is denied.

      . Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the basis for plaintiffs constitutional claims, was brought as a habeas action. In Morrissey, plaintiff attacked the procedural sufficiency and promptness of his parole revocation hearings. In Preiser, the court specifically mentioned Morrissey as being within the contours of a habeas action as it has developed within this country. 411 U.S. at 485-86, 93 S.Ct. at 1833-34. The court, in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), indicated that a request for hearing, which may eventually lead to release, while not asking for release itself, need not be brought as a habeas action. Id. at 107 n. 6, 95 S.Ct. at 859 n. 6. In Gerstein, however, the court made it clear that plaintiff there had not sought release, even as an alternative remedy. Here plaintiff specifically sseks his release as an alternate remedy. In addition, plaintiff in Gerstein sought prospective relief only, i.e„ the commencement of a probable cause hearing. Such relief is not foreclosed by Preiser. See Wolff v. McDonnell, 418 U.S. 539, 554-55, 94 S.Ct. 2963, 2973-74, 41 L.Ed.2d 935 (1974).


author: GLEN M. WILLIAMS, District Judge.

text:
    WELLMORE COAL COMPANY, Plaintiff, v. POWELL CONSTRUCTION CO., INC., et al, Defendants.
    Civ. A. Nos. 81-0019-B, 83-0278-B.
    United States District Court, D. Virginia, Big Stone Gap Division.
    Dec. 5, 1984.

      George S. Coakley, Cleveland, Ohio, Henry Keuling-Stout, Norton, Va., for plaintiff.
    Richard T. Sowell, Knoxville, Tenn., Jim H. Guynn, Roanoke, Va., Jackson S. White, Jr., Abingdon, Va., for defendants.
   MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

Civil Action No. 81-0019-B was originally filed on behalf of Wellmore Coal Company (hereinafter, Wellmore) against Powell Construction Company, Inc. (hereinafter, Powell) in the Circuit Court of Buchanan County, Virginia, and was removed to this court on grounds of diversity of citizenship on or about January 19, 1981. The original motion for judgment alleged that Wellmore and Powell had agreed upon a construction contract by which Powell would construct for Wellmore a certain coal preparation plant which included a refuse aerial tram system and that a malfunction of the aerial tram system constituted a breach of the construction contract’s implied warranties, i.e., that the aerial tram would be constructed in a reasonably good and workmanlike manner and would be reasonably fit for the purposes for which it was intended. Powell filed a third party complaint against Interstate Equipment Corporation (hereinafter, Interstate) alleging that Interstate had constructed the aerial tram and that if Powell was liatSe to Wellmore for breach of warranty, Interstate was liable to Powell.

After considerable discovery had been taken, a motion for summary judgment was filed by Interstate on the third party complaint filed by Powell. While Interstate’s motion for summary judgment was being considered by the court, Wellmore moved to amend its complaint and the court permitted the amendment whereby Interstate was made a party defendant rather than a third party defendant.

Count One of the amended complaint alleges that Powell, through the malfunction of the tram system, has breached implied warranties of merchantability and fitness for a particular purpose and is therefore indebted to Wellmore. Count Two alleges that Interstate expressly warranted that the equipment and materials supplied by it would be free from defect in design, material and workmanship and that Interstate is therefore liable to Wellmore on grounds of breach of express warranty. Count Three alleges that Interstate supplied and constructed an aerial tram system for Well-more and that the subsequent malfunction constituted a breach of implied warranty of merchantability. Count Four alleges that Interstate breached an implied warranty of fitness for a particular purpose and is therefore liable to Wellmore. Count Five alleges that Interstate is liable to Wellmore because of negligent design and construction of the aerial tram system. Count Six alleges that Interstate negligently operated, maintained and serviced the aerial tram system resulting in the malfunction. On each of the grounds alleged, Wellmore claims as part of its damages the sums expended to provide alternate means of hauling the refuse from the preparation plant to the disposal area.

Civil Action Number 83-0278-B alleges basically the same causes of action as set forth in Civil Action Number 81-0019-B, but arises from a separate event and involves other damages. Also, this second suit alleges that both Powell and Interstate were negligent in designing, manufacturing, installing and maintaining the system. The cases were consolidated for purposes of discovery and after discovery had been completed and certain affidavits filed, each defendant filed a motion for summary judgment. Both Interstate and Powell contend in their respective motions that they are not liable for anything beyond direct damages in either of the suits and that they are not liable for consequential or contingent damages.

STATEMENT OF FACTS

A letter agreement was entered into on May 16, 1977, between United Coal Companies (hereinafter, United) and Powell to build a coal preparation plant to be known as Wellmore Number- Eight in Big Rock, Virginia. The plaintiff in this suit is Well-more; however, the defendants do not raise any question over the fact that the contract was entered into by United, yet the suit is brought in the name of Wellmore; therefore, the court considers the acts of one to be the acts of the other.

Powell agreed to build the coal preparation plant for a turn-key price of $9,683,-000. Sometime after May 16, 1977, Well-more decided that it needed to incorporate an aerial refuse tram at Wellmore Plant Number Eight to dispose of the refuse from the plant instead of trucking the refuse to the disposal site. This required an alteration of the contract and, because Powell was not able to build such an aerial refuse tram, it had to seek an additional contractor. It is not disputed that Interstate was the only company in the United States capable of performing this task. Various meetings were held between Powell and Interstate and between Wellmore, Powell and Interstate.

On February 1, 1978, Interstate prepared and sent to Powell a proposal designated P-7800, the front page of which reads as follows:

POWELL CONSTRUCTION COMPANY
For
AERIAL TRAMWAY SYSTEM
At
WELLMORE #8 PREPARATION PLANT
BIG ROCK, VIRGINIA

P-7800 also contained a provision titled “LIABILITY AND GUARANTEE”. On page thirteen (total of twenty pages) as part of this liability and guarantee statement, the following words are found: “The seller will not be responsible for or liable in any way for consequential damages or contingent liability.” It is agreed that the February 1, 1978 document was never executed by Powell or Interstate. However, the identical language is contained in subsequent documents. It is undisputed that after the February 1, 1978 proposal, representatives of Powell and Wellmore met to discuss the proposal made by Interstate. On February 20, 1978, Interstate prepared a second proposal, titled P-7800A, and submitted it to Powell. The face sheet and guarantee provisions contained the same language as P-7800, and there was an addendum regarding “concrete quantities required” and a total price indicated of $2,854,000. It is agreed that P-7800A was never executed by either party.

It is also undisputed that after a meeting on February 21, 1978, at Interstate’s offices in Pittsburgh, between representatives of Wellmore, Powell and Interstate, Interstate prepared its third proposal, titled P-7800B, dated February 22, 1978. The face sheet of this document, the liability and guarantee provisions and the summary sheet which contained the total price, remained the same as P-7800A. P-7800B was signed on February 22,1978, by James F. Vogel, President of Interstate, who sent three bound copies of the proposal to Powell. Powell accepted the proposal on February 27, 1978. On March 2, 1978, Powell returned two signed copies of the Interstate proposal P-7800B to Interstate and on that same day, revised their May 16, 1977 specifications to Wellmore (or United), said specifications including the addition of the aerial refuse tram system to be supplied by Interstate. Powell was to receive from Wellmore a supervision and expedition fee of five percent (5%) of the contract price between Powell and Interstate.

The contract between Powell and Well-more, dated May 16, 1977, contained a provision known as “Change Order Number One,” which had the effect of adding $295,-300 to the original contract of $9,683,000. On March 16, 1978, Powell sent to Well-more a second change order, “Change Order Number Two.” Change Order Number Two increased the total contract amount by $3,400,000, which included the addition of the aerial refuse tram to Wellmore Plant Number Eight. Revised specifications were attached to this document. On March 28, 1978, both Powell and Wellmore executed Change Order Number Two. Change Order Number Three, issued by Powell on June 5, 1978, was simply a credit memo of $3,000. Change Order Number Four increases the price for concrete by the sum of $126,500.

On June 6, 1978, another meeting was held in the offices of Interstate between representatives of Wellmore, Powell and Interstate, which resulted in the fourth and final proposal, P-7800C, dated that date.

This proposal contained a face sheet identical to the three previous proposals and the same liability and guarantee provisions contained in Proposals P-7800A and P-7800B. The basic change between P-7800B and P-7800C was that the latter created certain changes in the continuous tramway, including the elimination of a breakover tower. Also, there were certain changes in the technical provisions of the tramway and a new drawing, designated as P-7703-1, substituted for the previous drawing SK-7803. The price increased from $2,854,000 to $2,906,000.

The parties do not dispute that at the time Change Order Number Two was executed between Powell and Wellmore, Interstate’s Proposal P-7800B contained a heading “Materials and Services by Purchaser,” and when Change Order Number Two was executed by Powell and Wellmore, the “Materials and Services by Purchaser” provision was specifically “passed through” from Interstate to Powell to Wellmore. Powell and Interstate argue that Change Order Number Two passed on to Wellmore all of the contractual provisions of the Powell-Interstate agreement, including the guarantee clause with the qualification that there would be no liability for consequential damages or contingent liability. Well-more concedes in its brief that the “Materials and Services by Purchaser” provision in the Powell-Interstate contract was “passed through” to Wellmore through revised specification unit 88.00, dated March 2, 1978. However, Wellmore claims that the language of Change Order Number Two does not incorporate all of the other provisions of the Interstate-Powell agreement and that there is nothing in the language which would indicate that the guarantee clause was passed through from Interstate to Powell to Wellmore. Wellmore further contends that P-7800B and Change Order Number Two did not constitute the final agreement between the parties because the Powell-Interstate agreement was changed, as noted heretofore, in Proposal P-7800C and Change Orders Three and Four.

CONTENTION OF THE PARTIES

Powell and Interstate contend that the Powell-Interstate contract was accepted in its entirety by Wellmore, by incorporation in the Powell-Wellmore agreement as Change Order Number Two. Change Order Number Two is in the form of a letter dated March 16, 1978, from James J. Powell, President of Powell Construction Company, to Clarence Viers, Executive Vice-President of United Coal Company, and contains the following language: “Refuse Aerial Tram System Unit 9.05 will be furnished as stated in Interstate Equipment Corporation proposal number P-7800B (revised February 22, 1978). A copy of this contract is enclosed herewith.” This document was signed, as accepted, on March 28, 1978, by Powell Construction Company, Inc., by James J. Powell and by United Coal Companies by Clarence J. Viers.

It is further contended by Powell and Interstate that if the written agreement between the parties is ambiguous, the parol evidence is sufficient to cause summary judgment to be granted in their favor because Wellmore specifically agreed at the Pittsburgh meeting prior to the submission of P-7800B to be bound by the “liability and guarantee” provisions of P-7800B. Furthermore, Powell and Interstate note that their testimony is specific in this regard and that Wellmore’s representatives do not deny the events of the Pittsburgh meeting.

Interstate also argues that the law of Tennessee should apply in this case; that Wellmore is estopped to deny that it is bound by the agreement between Interstate and Powell; that Wellmore was a third party beneficiary of the Powell-Interstate agreement; that if they were not an actual party, they were a de facto party; and that if there was not a real contract between Wellmore and Interstate, there was an implied contract. On the other hand, Wellmore contends that Powell’s Change Order Number Two is clear on its face and cannot be interpreted to mean that Wellmore was incorporating by reference the Powell-Interstate contract P-7800B. As a second argument, Wellmore contends that if there is any ambiguity in the language of Change Order Number Two, even if parol evidence is considered, Change Order Number Two was not the final agreement between the parties because P-7800B was succeeded by P-7800C and Change Order Number Two was superseded by Change Order Numbers Three and Four.

THE OPINION OF THE COURT

The written contract between Wellmore and Powell consists of several written documents. The first of these is the original contract which is simply a letter dated May 16, 1977 setting forth Powell’s agreement to build the coal preparation plant for the sum of $9,683,000. This written contract between Wellmore and Powell was modified by four change orders, the first of which simply added an amount of $295,300 to the contract and made certain minor changes. Change Order Number Two is significant because it increased the total amount by $3,400,000 which represented the contract price between Powell and Interstate for the aerial tramway. Change Order Number Three merely subtracted $3,000 as a credit memo and is actually an insignificant document. Change Order Number Four represents a change in price for concrete. There is no written agreement between Wellmore and Interstate unless the Powell-Interstate agreement “passed through” to Wellmore in Change Order Number Two. The court is of the opinion that the parol evidence is such in dispute that summary judgment cannot be granted based upon it. The president of Wellmore and certain other officers have denied that it was their intention to adopt the Powell-Interstate agreement as part of the contract between Wellmore and Powell and if they had understood that this was the situation, they would never have agreed to the contract.

It is clear under Virginia law that when more than one document makes up a contract, those documents should be interpreted together, each one assisting and determining the meaning intended to be expressed by the others. J.M. Turner & Co. v. Delaney, 211 Va. 168, 176 S.E.2d 422 (1970). It is also well established in Virginia that if the contract is clear and unambiguous on its face, then parol evidence is not admissible to explain or contradict or to in any way vary the terms of the agreement between the parties. W.D. Nelson & Co. v. Taylor Heights Development Corp., 207 Va. 386, 150 S.E.2d 142 (1966). Furthermore, the court is of the opinion that, as will be more fully explained, the rule of sales applies in this case and in the Uniform Commercial Code only two exceptions are permitted for the application of parol evidence: (1) to show a course of dealing or usage, and (2) to show consistent additional terms. Va.Code § 8.2-202. The parol evidence offered in this case does not involve either of these exceptions.

The parties are inconsistent in their arguments as to what law is applicable to this case. Interstate argues that Tennessee law applies based upon the language in the Interstate-Powell agreement, which states that the governing law should be “the purchaser’s place of business.” (P-7800B, at p. 17). Thus, Interstate says that Powell is the purchaser and Powell’s residence is Tennessee. This is inconsistent with Interstate’s contention that the Powell-Interstate agreement is incorporated in the Powell-Wellmore contract which would make Wellmore the purchaser, and because Well-more is a Virginia corporation, the law of Virginia would apply. On the other hand, Wellmore argues in its brief and cites the court to Virginia cases without giving any cogent reason as to why Virginia law should apply. By inference, it appears that Wellmore is conceding that the purchaser is Wellmore and thus Virginia law is applicable.

Another weakness in the argument of Interstate is its interpretation of the liability and guarantee agreement set forth in the Interstate-Powell contract. The heading on page 13 of P-7800B reads: “LIABILITY AND GUARANTEE.” Interstate argues that since the words “in any way” appear in the disclaimer sentence, it applies to negligence as well as warranty. It is noted that this proposal was drawn up by Interstate and must be construed strictly against it because it is the one that insisted upon the language and it is the one that submitted it. In the sentence following the one which states “the seller will not be responsible for nor liable in any way for consequential damages or contingent liability,” the following words appear “It shall not apply to machinery, materials or parts not manufactured by the seller, or to machinery or parts which shall have been repaired or altered other than by tlje seller, ...” Therefore, the language itself shows that the disclaimer points to warranty only and not to negligence. Furthermore, contingent and consequential damages are not generally associated with the law of negligence'. They are terms applicable to and used in relation to the law of warranty and the U.C.C. In particular, they apply to the law of sales. An argument is made to the effect that this is not a sale. However, Interstate treated it as a sale as did Well-more and the language of the Powell-Interstate agreement is clearly one of sale. Interstate calls itself the “seller” and Powell, for Wellmore, is listed as the “buyer.” Therefore, the warranties defined in the U.C.C. are applicable in this case. Negligence imports a duty of reasonable care for carrying out a particular duty and one is responsible for all damages proximately caused by the negligence in performing those duties. Therefore, the standard of damages is defined in negligence in one manner and in warranty another. The court finds that the law of Virginia applies in this case; thus, in construing the liability and guarantee provision of the Interstate-Powell agreement as between all the parties, it does not in any way limit the liability or defeat liability for negligence on the part of Interstate or Powell to Wellmore.

The court notes that in the Interstate-Powell agreement, Interstate is the “seller.” On the other hand, the “real purchaser” is not so obvious. On page 1 of P-7800B, the purchaser is described as follows: “Powell Construction Company for the Wellmore Number Eight Preparation Plant, Wellmore Coal Company at Big Rock, Virginia.” A reasonable interpretation of this language is that Powell purchased the equipment for Wellmore. The relationship, whether as an independent contractor or as agent for Wellmore Coal Company, is not clear from this document and can be ascertained by the action of the parties and a study of all relevant writings. There is no question that under the arguments set forth by Wellmore in accordance with their brief that the duties to be performed by the purchaser in the Interstate-Powell agreement came to rest upon Wellmore.

Beginning on page 12 of the Interstate-Powell agreement, P-7800B, there is a list of items under a heading: “MATERIALS AND SERVICES TO BE FURNISHED BY PURCHASER:’’. Thus, even though Powell is the construction company charged with constructing the overall preparation plant, there is no dispute that the duties to be performed by the purchaser fell upon Wellmore and Wellmore did in fact perform these contractual obligations. These materials and services can be summarized as follows: clearing the right-of-way, including the removal or relocation of all obstructions, providing a practical truck road to all erection sites, the building of all concrete foundations for the tramway system, the supplying of power, furnishing a control circuit, furnishing communication equipment as needed and desired, surveying and engineering services to provide the center line and to stake out the foundations, receiving, unloading and storing any equipment including the handling of preliminary shipments, and providing construction power at the terminal sites. Thus, it would seem that every practical thing that had to be done by the purchaser was done by Wellmore and this ultimately included the payment to Interstate for the tram and the percentage paid to Powell for supervising the building. Therefore, the court is of the opinion that Wellmore was the actual purchaser.

Further, the court is of the opinion that when all of the written materials are considered as a whole, Wellmore must be considered the purchaser in fact. When the letter of March 16, 1978, written by Powell to Clarence Viers, Executive Vice-President of United Coal Companies, was accepted on behalf of United, the Interstate-Powell agreement was accepted in its entirety. If the Interstate-Powell agreement was not adopted in its entirety by Wellmore, then what portion of it was adopted? In other words, what was excluded? It is conceded by Wellmore that the materials and services to be performed by the purchaser were to be performed by Wellmore and the payment of the money was to be made by Wellmore. When the language is used that the refuse aerial tram system “will be furnished” as stated in Interstate Equipment Corporation’s proposal number P-7800B and that “a copy of this is enclosed,” the language used is not exclusive; it is inclusive. It was all submitted to Viers and was accepted by him. There are no exclusions. Therefore, the plain language of this agreement points to the fact that it was binding upon Wellmore as it was on the other parties.

Common sense dictates that Interstate could never be concerned about any claim of Powell for consequential damages, since Powell would never be the user. Therefore, no factual situation. could be envisioned which would create liability for consequential damages to Powell from Interstate. Powell was not to be the user of the aerial tramway and therefore could never suffer any kind of contingent or consequential damages. On page 18 of the Interstate-Powell agreement, it provides that title to all materials which were delivered to the site where the work was being done “shall be in the purchaser and title shall pass to the purchaser,” but that the seller would be solely responsible for the loss and damage. There is nothing in the Powell agreement with Wellmore that Powell ever obtained title to any of these materials or to any of the work and materials as it was completed and compensated for. It went directly to Wellmore. The duty of Powell was only to supervise; therefore, Powell could not obtain ownership or title to materials as they were delivered to the site. On page 16 of the contract, it is provided that the purchaser is to furnish all personnel required for operating the system under the seller’s instructions. There is nothing in the Powell agreement with Wellmore that Powell “is to furnish people who are to test and operate the system” provided by Interstate. Therefore, unless Wellmore is the purchaser, this provision would not make any sense. While it may be unclear as to what capacity Powell was acting for Wellmore, whether as an independent contractor or an agent, there is no question that the contract was made for Wellmore in the language as set forth in the agreement and since this was submitted to and approved by Wellmore, it knew it was accepting the contract made by Powell on its behalf with Interstate.

Since the court has found that Interstate may be liable for negligence, the motion for summary judgment on the issue of negligence on behalf of Interstate is denied. The court finds that Interstate has specifically made written warranties of its liability for direct damages and any motion for summary judgment on warranties insofar as direct damages is concerned is overruled; however, the court grants summary judgment to Interstate on the issue of consequential damages and contingent liability insofar as breach of warranty is concerned because they are specifically excluded by Interstate. Since Interstate is the seller in this case, it is the only one that can be liable for breach of warranties. Powell has made no warranties to Wellmore, either express or implied, therefore summary judgment is granted to Powell on all allegations against it for breach of warranty.

In Civil Action No. 81-0019-B, no claim is made against Powell for negligence; therefore, in said case, summary judgment is granted to Powell on all issues. In Civil Action No. 83-0278-B, negligence is alleged against Interstate and Powell; therefore, in said case, summary judgment is denied to both Powell and Interstate on the issue of negligence.

An Order will be entered in accordance with this opinion.

      . Consequential damages are defined as follows: “Consequential damages resulting from a seller’s breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know." Va.Code § 8.2-715.
      It is to be noted that this case does not involve a limitation of warranty, which is covered by Va.Code § 8.2-316. This case does involve a limitation of remedy, covered by Va.Code § 8.2-719, which specifically provides for a limitation of damages, which may be the “sole remedy.” This Section also provides that consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. In this case, it is not argued that the exclusion is unconscionable.

      . There are two implied warranties in a sale in Virginia, as follows: (1) merchantability (Va. Code § 8.2-314) and (2) fitness for a particular purpose (Va.Code § 8.2-315). Various technical applications and ramifications of these need not be addressed in this opinion.

      . The court is of the opinion that it does not have to determine whether in this case Powell was acting as agent or contractor. Va.Code § 8.2-210 says that "a party may perform his duty through a delegate unless otherwise agreed____”
      (2) "unless otherwise agreed all rights of either seller or buyer can be assigned except where the assignment would materially change the duty of the other party____”

      . "The obligation of the seller is to transfer and deliver and that of the buyer is to accept and pay in accordance with the contract.” Va.Code § 8.2-301. Thus in this case only Wellmore fits the U.C.C. description of the buyer; it accepted and paid. By the same reasoning, Powell does not fit the definition of the seller.