Musselman v. Spies

• Decision Date: 25 May 1972
• Docket Number: Civ. A. No. 70-326.
• Citation: 343 F. Supp. 528
• Parties: George and Dorothy MUSSELMAN et al., Plaintiffs, v. Alvine K. SPIES et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

343 F. Supp. 528

George and Dorothy MUSSELMAN et al., Plaintiffs, v. Alvine K. SPIES et al., Defendants.

Civ. A. No. 70-326.

United States District Court, M. D. Pennsylvania.

May 25, 1972.

Donald B. Swope, H. Joseph Flynn, Tri-County Legal Services, York, Pa., for plaintiffs.

Markowitz, Kagen & Griffith, Liverant, Senft & Cohen, Allen H. Smith, York, Pa., for defendants.

Before VAN DUSEN, Circuit Judge, and HERMAN and MUIR, District Judges.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MUIR, District Judge.

I. INTRODUCTION

This is a proceeding for injunctive relief which raises the issue whether Article III, Sections 302 et seq. of the Pennsylvania Landlord and Tenant Act of 1951 is facially unconstitutional or unconstitutional as applied to plaintiffs and the class they seek to represent in these proceedings.

Jurisdiction is predicated upon 28 U. S.C. § 1331, § 1343(3), § 1343(4), § 2201 and § 2281. A three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284.

Upon the petition and affidavits of plaintiffs George and Dorothy Musselman, Eugene and Judith Newcomer, leave to commence and proceed in forma pauperis was granted, and the complaint was filed. The Judge to whom the petition was presented issued the following temporary restraining order:

"Now, therefore, on motion of plaintiffs, it is ORDERED that the defendants Alvine K. Spies and Malden H. Lucabaugh, their agents, servants and employees, and all persons acting by, through or under them or by their order be, and they hereby are, restrained from selling any property belonging to the plaintiffs, George and Dorothy Musselman and Eugene and Judith Newcomer or found in their homes at Grantview Road, R.D. #3, Hanover, Pennsylvania and 906 West College Avenue, York, Pennsylvania, respectively and from entering or attempting to enter these premises or otherwise interfering with the plaintiffs' possession and control of the aforementioned personal property on the aforementioned leased premises, pursuant to or under color of Article III, Section 302 et seq., of the Pennsylvania Landlord and Tenant Act of 1951 (1951), April 6, P.L. 69 Section 302 et seq.; 68 P.S. Section 250.302 et seq. (1965)."

Subsequently, the temporary restraining order was extended pending a hearing on the application for a preliminary injunction. Defendants John Keesey, George Hansford, Ira W. Keech and Ralph D. Leber filed motions to dismiss and upon motion of the plaintiffs, these defendants were dropped from the suit. Defendants Bobby R. Johnson, James B. Singley, and Stanley L. Keller were also dropped as defendants on motion of plaintiffs on January 14, 1971. Thereafter, Defendant Malden H. Lucabaugh filed a motion to stay the proceedings pending a construction of the Pennsylvania statutes involved by the Pennsylvania courts and requesting for that reason that the court abstain. The three-judge court heard testimony on the plaintiffs' application and heard oral argument on defendant Alvine K. Spies' motion to stay. Decision on the motion to stay was reserved. At the close of the plaintiffs' case, defendant Alvine Spies moved to dismiss, and after oral argument the motion was denied without prejudice to his right to renew it at the close of the defendants' case. At the close of the defendants' case, Spies renewed his motion to dismiss and the matter was reserved for decision. On the same day, the Court enlarged the scope of the temporary restraining order previously entered by entering the following order amending the same:

"It is ordered that the defendants, Alvine K. Spies and Malden H. Lucabaugh and other constables of York County who are members of such class of constables of York County represented by Alvine K. Spies and Malden H. Lucabaugh, their agents, servants, and employees and all persons acting by, through or under them, or by their order, be and they hereby are restrained from advertising for sale, threatening to sell or selling any property belonging to low income tenants residing in York County, Pennsylvania, whose income qualifies them as poor under the guidelines published periodically by the Office of Economic Opportunity, such guidelines being most recently stated in OEO Instruction 6004-1(b), effective December 1, 1970; and from entering or attempting to enter premises of such persons or otherwise interfering with the plaintiffs' possession or control of the personal property on such leased premises pursuant to or under color of 68 P.S. § 250.309."

II. FINDINGS OF FACT

1. Plaintiffs George and Dorothy Musselman are husband and wife, who at the time of the hearing in this matter resided at Gettysburg, R.D. #5, White Run Road, Pennsylvania.

2. The remaining eight defendants herein are constables of York County, Pennsylvania.

3. On May 6, 1970, the Musselmans and their six children occupied a farmhouse in Spring Grove, Pennsylvania, which they rented for $40.00 per month.

4. The family's income at that time consisted solely of the earnings of Mr. Musselman, which amounted to $80.00 or $90.00 per week, and the Musselmans' assets consisted of various household items and furniture valued at less than $100.00. Finance companies held title to a 1961 Chevrolet truck and a 1961 Ford Falcon which the Musselmans used.

5. On May 6, 1970, the Musselmans were personally served at their Spring Grove residence with a Landlord and Tenant complaint stating that their landlord had brought suit for possession of the farmhouse the Musselmans were then renting and for judgment in the amount of $2.00 per day from May 1, 1970, until the farm was vacated by the Musselmans.

6. A hearing on the Landlord and Tenant complaint was held at the offices of Justice of the Peace Margaret Bealing, Glenville, Pennsylvania. Mrs. Musselman was present and was represented by Joseph Flynn of Tri-County Legal Services, York, Pennsylvania.

7. On May 1, 1970, the landlord obtained an order for possession of the premises, a copy of which was personally served upon the plaintiffs the same day. The order, signed by the Justice of the Peace, required the Musselmans to vacate the premises within ten days.

8. The Musselmans moved from the Spring Grove farmhouse to Grandview Road, R.D. #3, Hanover, York County, Pennsylvania.

9. On June 30, 1970, defendant Alvine K. Spies, Constable of York County, appeared at the Musselmans' new residence, made an inventory of certain of the personal property of the Musselmans contained in the house, and served the Musselmans with a Notice of Distraint claiming as due $81.20 in rent on the Spring Grove farmhouse, which the Musselmans had vacated and $5.90 in costs.

10. Plaintiffs Eugene and Judith Newcomer are husband and wife and at the time of the institution of this proceeding they with their child resided at 906 West College Avenue, York, Pennsylvania, in a first floor apartment which they rented from Mrs. Mary Flinchbaugh for $25.00 per week.

11. On June 16, 1970, when the Newcomers were served with a Notice of Distraint for rent due on their apartment, the Newcomers were both unemployed and were receiving welfare payments of approximately $110.00 per month.

12. On June 16, 1970, the Newcomers had no income other than welfare payments and had no assets other than their furniture which they had purchased for $16.00, a television set, and one automobile. On the date the Notice of Distraint was served upon them, their liabilities included outstanding loans of $1,400 from Seaboard Loan Company, $800.00 from Household Finance Company and $600.00 from Drovers & Mechanics Bank.

13. On June 16, 1970, defendant Malden H. Lucabaugh personally served upon the Newcomers, at their residence at 906 West College Avenue, York, Pennsylvania, a Notice of Distraint stating that the Newcomers owed $96.00 in rent and $18.50 in costs.

14. After serving the tenants with the Notice of Distraint, Constable Lucabaugh made a list of all the personal property on the premises, including some items which belonged to the landlord, and posted a Notice of Sale.

15. On the date of service of the Notice of Distraint, the Newcomers owed back rent of $96.00.

16. On or about June 29, 1970, the Newcomers received an advertisement of a sale in distraint of their personal property to satisfy the landlord's claim for the rent due and constable's costs. The sale was set for July 6, 1970, at 9:30 A.M.

17. The sale was not held because of the entry of the temporary restraining order, and the Newcomers remained at the 906 West College Address until the end of July, 1970.

18. In the case of the Newcomers, there was no judicial hearing on the landlord's right to distrain their personal property at which the Newcomers could have presented any defenses they might have had to the landlord's claim.

19. On January 27, 1971, Mrs. Sonia L. Shaffer with her husband and four children resided in an eight-room house they rented from one Adonolfi at 614 South Pershing Street, York, Pennsylvania.

20. At approximately 4:00 P.M. on January 27, 1971, defendant Lucabaugh and Adonolfi, the landlord, broke down the door of the Shaffer residence.

21. Constable Lucabaugh stated to Mrs. Shaffer that he was an officer of the law and that his purpose was to levy on the personal property of the Shaffers to satisfy the landlord's claim for the unpaid rent.

22. On the date of the Constable's levy, the Shaffers owed $450.00, or five months' rent on the South Pershing Street residence.

23. On January 27, 1971, the Shaffers had neither heat, with the exception of what was afforded by a space heater and a gas stove, nor electricity. The roof leaked, the bathroom ceiling and dining room ceiling had fallen and the bedroom walls were wet.

24. The Shaffer family's income consisted solely of the earnings of Mr. Shaffer, who was, at the time, a part-time truck driver for Aetna Freight Lines, receiving take-home wages of approximately $30.00 to $40.00 per week.

25. The Shaffers' assets consisted of a television...