Gross v. Fox

• Decision Date: 24 October 1972
• Docket Number: Civ. A. No. 70-3303.
• Citation: 349 F. Supp. 1164
• Parties: Susan GROSS, on behalf of herself and all others similarly situated v. J. Wilson FOX, Deputy Constable et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

349 F. Supp. 1164

Susan GROSS, on behalf of herself and all others similarly situated v. J. Wilson FOX, Deputy Constable et al.

Civ. A. No. 70-3303.

United States District Court, E. D. Pennsylvania.

October 24, 1972.

Sharon K. Wallis, Stephen A. Sheller, Astor & Weiss, Philadelphia, Pa., for plaintiff.

Turrey A. Kepler, John F. Naulty, Philadelphia, Pa., for defendant Fox.

Milton S. Lazaroff, Philadelphia, Pa., for defendants Clarke, Freedman & Devon-Strafford Co.

Before VAN DUSEN, Circuit Judge, LORD, Chief District Judge, and FULLAM, District Judge.

MEMORANDUM SUR MOTION TO VACATE OPINION AND GRANT REHEARING

JOSEPH S. LORD, III, Chief District Judge.

This case involves a challenge to the constitutionality of Sections 302 et seq. of the Pennsylvania Landlord and Tenant Act, 68 P.S. § 250.302 et seq. These provisions of state law provide a procedure known as "distraint" or "distress for rent" whereby a landlord or his duly authorized agent is allowed to take possession or control of property (with certain exceptions) found upon leased premises to recover rent past due, without the requirement of a prior judicial determination of the validity of the landlord's claim for rent. This civil action is authorized by 42 U.S.C. § 1983, and this court has jurisdiction pursuant to 28 U.S.C. § 1343(3), 2201, 2281.

Count I of plaintiff's complaint seeks a declaratory judgment of the unconstitutionality of 68 P.S. § 250.302 et seq. and a permanent injunction restraining the defendants from executing distraints under color of these statutes. Pennsylvania law requires that an entry into the leasehold be made to effectuate a valid distraint on the goods. Mountcastle v. Schumann, 205 Pa.Super. 21, 205 A.2d 642 (1964). The entry into a tenant's premises and seizure of goods are alleged to violate the Fourth Amendment's prohibition against unreasonable searches and seizures. The procedures authorized under the statute are also alleged to violate the due process clause of the Fourteenth Amendment because of the lack of any notice, hearing or opportunity to present a defense before a seizure of the tenant's goods.

Our opinion on June 30, 1972 held that if 68 P.S. § 250.302 et seq., particularly 68 P.S. § 250.302, should be construed to authorize the acts of defendant Fox in entering plaintiff's premises without her knowing and understanding consent, then they would be unconstitutional as applied because they would be in violation of the Fourth Amendment.

The defendants have moved to vacate the opinion and grant rehearing, their argument being that Count I of the complaint addressed itself only to the question of whether the state distraint laws were unconstitutional on their face or not.

Plaintiff has also requested reconsideration. Plaintiff points out that the court only ruled on her Fourth Amendment claim and that it made no determination of the merits of her claim that the distraint provisions are unconstitutional on their face because they violate the fundamental requirements of due process by permitting a taking of property without notice and an opportunity to be heard before the taking.

Upon consideration of defendants' argument that Count I is directed solely to the question of the facial validity of the pertinent statutes, and plaintiff's contention that we did not fully consider her claims of facial unconstitutionality, we now vacate our opinion of June 30, 1972.

Further reflection has led us to the conclusion that the distraint procedures embodied in 68 P.S. § 250.302 et seq. are facially unconstitutional in light of the Fourteenth Amendment's due process clause.

Under 68 P.S. § 250.309, the tenant's property which is distrained on by the landlord can eventually be sold to recover rent "reserved and due." This court, in Santiago v. McElroy, 319 F. Supp. 284 (E.D.Pa.1970), held that this sale provision violated the due process clause of the United States Constitution because there was no provision for a hearing before the tenant's property was sold. We declined to rule, however, on whether the distraint and steps taken before sale authorized under the state law violated the Fourteenth Amendment rights of tenants because the plaintiffs in that case did not show they had been harmed in any manner by these procedures. In the instant case, however, there are no standing problems as it has been stipulated that there was an entry into plaintiff's apartment without her knowledge by defendant landlord's agent, defendant Fox, who removed certain of plaintiff's belongings from the apartment, and left a notice of distraint on the outside of her door.

68 P.S. § 250.302 provides that "personal property located upon premises occupied by a tenant shall, unless exempted by * * * this act, be subject to distress for any rent reserved and due. * * *" Rent is "reserved and due", and thus the landlord may distrain, as soon as the tenant is one day late on a rent payment. Baker v. Spector, 90 Pa.Super. 163 (1927). Even if the landlord has customarily accepted rent payments at some time after the due date in the lease, and has never made demand for timely payment, he may make distraint if he does not receive the rent on the date due as designated in the lease. Bisk Candy Co. v. Stout, 289 Pa. 369, 137 A. 612 (1927). All goods found on the tenant's premises, including those belonging to third parties having no connection whatsoever with the lease, are subject to distraint, unless exempt by statute.¹ Firestone T. & R. Co. v. Dutton, 205 Pa.Super. 4, 205 A.2d 656 (1964); Derbyshire Bros. v. McManamy, 101 Pa.Super. 514 (1931); Potts Dept. Store v. Lutz & Sweigart, 98 Pa.Super. 545 (1930).

In order to effectuate a valid distraint the landlord or his agent must actually enter the leased premises and "seize" the tenant's goods. Mountcastle v. Schumann, supra. The landlord need not actually remove the goods, but may impound them or perform some other act sufficient to indicate a seizure of or control over the tenant's goods. Mountcastle, supra; Murphy v. Marshell, 179 Pa. 516, 36 A. 294 (1897); Furbush v. Chappell, 105 Pa. 187 (1884); Seyfert v. Bean, 83 Pa. 450 (1877) (dictum).

Thus, while the goods are under distraint, the tenant may or may not have them available for use on the leased premises, depending on the manner of "seizure" the landlord chose to employ in effectuating his distraint. The distrained goods may not be removed from the premises² so that the tenant is deprived of any opportunity to dispose of his goods as he sees fit.

"Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. * * * Citations omitted Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land." Buchanan v. Warley, 245 U.S. 60, 74, 38 S.Ct. 16, 18, 62 L.Ed. 149 (1917).³

In Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), the Court had to evaluate the constitutionality of a Wisconsin pre-judgment garnishment statute which permitted a plaintiff to freeze a portion of a wage earner's salary pending the outcome on the merits of the underlying action on the debt. If the underlying claim against the alleged debtor proved to be invalid, the wage earner would of course then be given all the wages which had been frozen. The Court held that this temporary restriction on the use of the money earned by the alleged debtor was in violation of the fundamental principles of due process since there was no provision for notice and prior hearing before the wage freeze took effect. "The `property' of which petitioner has been deprived is the use of the garnished portion of her wages during the interim period between the garnishment and the culmination of the main suit." 395 U.S. at 342, 89 S.Ct. at 1823 (Harlan, J. concurring).

"* * * It is now well settled that a temporary, nonfinal deprivation of property is nonetheless a `deprivation' in the terms of the Fourteenth Amendment." Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 1996, 32 L.Ed.2d 556, 572 (1972). "The Fourteenth Amendment draws no bright lines around three-day, 10-day or 50-day deprivations of property." Fuentes, 407 U.S. at 86, 92 S.Ct. at 1997, 32 L.Ed.2d at 573.

In Fuentes, provisions of the Florida and Pennsylvania replevin statutes were declared unconstitutional by the Court. These provisions permitted a person who asserted that another was wrongfully detaining his goods to gain immediate possession of the goods through a writ of replevin if he posted a bond in double the value of the property. The sheriff would execute the writ when the bond was posted, with no opportunity for prior hearing or notice to the other party from whom the goods are taken. The taking could be fleeting since the defendant in the replevin action could reclaim possession of the property by posting his own counterbond in double the property's value within three days after the...