Noble v. Bethlehem Housing Authority

• Citation: 617 F. Supp. 248
• Decision Date: 20 May 1985
• Docket Number: Civ. A. No. 84-4743.
• Parties: Vanessa NOBLE v. BETHLEHEM HOUSING AUTHORITY and Laura Easen.
• Court: U.S. District Court — Eastern District of Pennsylvania

617 F. Supp. 248

Vanessa NOBLE v. BETHLEHEM HOUSING AUTHORITY and Laura Easen.

Civ. A. No. 84-4743.

United States District Court, E.D. Pennsylvania.

May 20, 1985.

David Scholl, Lehigh Valley Legal Services, Allentown, Pa., for plaintiff.

Bruce F. Briody, Bethlehem, Pa., for defendants.

MEMORANDUM OPINION

CAHN, District Judge.

Plaintiff, a tenant of a public housing authority, seeks injunctive relief, in the form of an order requiring the authority to provide her with a dwelling unit.¹ I permitted plaintiff to proceed in forma pauperis. A complete record has been made of the factual background of plaintiff's equitable claim, and the attorneys for the parties have filed comprehensive briefs and presented oral argument. For the reasons stated below, I will grant injunctive relief prohibiting defendants from evicting plaintiff until the Authority complies with the notice and hearing requirements mandated by federal and state law.

I make the following:

FINDINGS OF FACT

1. The plaintiff is Vanessa Noble, who was born on October 6, 1963.

2. Defendant, Bethlehem Housing Authority ("BHA"), is a municipal corporation organized and existing under the laws of the Commonwealth of Pennsylvania with a principal office in Bethlehem, Northampton County, Pennsylvania.

3. Defendant, Laura Easen, is a property manager for BHA. She manages Pembroke Project and three other projects containing 772 family units.

4. The plaintiff and BHA were parties to a written residential dwelling lease, dated September 18, 1980 and subsequently renewed, for a unit in the Pembroke Project at 1154 Fritz Drive, Bethlehem, Pennsylvania. This lease, in paragraph 6N, obligates the tenant:

To give the Authority notice in writing when the premises are to be vacant for two weeks or more; such notice shall not render the Authority responsible for any personal property of any nature or description left in or on the leased premises during Tenant's absence.

5. Plaintiff, still residing in the Fritz Drive apartment, married on January 14, 1984.

6. On January 15, 1984, plaintiff went to Trenton, New Jersey, to the home of her husband's grandmother.

7. Plaintiff returned to 1154 Fritz Drive, Bethlehem, Pennsylvania, at the end of February, 1984. Plaintiff had not given BHA notice that she would be away from the premises for more than two weeks.

8. On plaintiff's return, Myrna Morales, a management aide for BHA, orally reminded plaintiff of the requirement for giving notice if plaintiff would be absent from the premises for a period in excess of two weeks.

9. On April 18, 1984, plaintiff left the premises and returned to Trenton, New Jersey, in an attempt to resolve marital problems.

10. Plaintiff did not advise BHA that she would be away from the premises for a period in excess of two weeks.

11. On May 10, 1984, concerned that the premises at 1154 Fritz Drive were vacant, BHA mailed a notice to plaintiff addressed to 1154 Fritz Drive, Bethlehem, Pa., 18107, stating that an inspection would be held on Monday, May 14, 1984, between 10 A.M. and 3 P.M. The notice further stated: Also, if we do not hear from you by Monday, May 14, 1984, we will consider your home abandoned and cancel your lease — since it has been reported to us that you have vacated." The notice did not inform plaintiff of her right to request a hearing under BHA's grievance procedure.

12. On or about May 11, 1984, a rape of a young woman occurred in the apartment at 1154 Fritz Drive.

13. On or about May 14 or May 15, 1984, Myrna Morales and the defendant, Laura Easen, inspected the apartment at 1154 Fritz Drive, Bethlehem, Pennsylvania, and found another young woman, identified as Helen Williams, therein. Ms. Williams was ordered to leave the premises. No clothing was found in the apartment, and the refrigerator belonging to plaintiff was not there. The premises contained broken furniture, fast food remnants, and their containers. The premises had become roach infested.

14. After this inspection, BHA boarded up the premises at 1154 Fritz Drive, Bethlehem, Pennsylvania.

15. BHA then cleaned the premises and on May 30, 1984, rented the premises to new tenants.

16. Plaintiff's rent for 1154 Fritz Drive, Bethlehem, Pennsylvania, was paid on her behalf by the Pennsylvania Department of Welfare through the end of May, 1984.

17. Plaintiff retained the key for the premises in question.

18. In August 1984, plaintiff moved into the unit of her sister, Veronica Lee. At that time, Veronica Lee was terminally ill with cancer, and she is now deceased. Veronica Lee leased her unit from BHA.

19. Plaintiff remains a tenant in the unit formerly leased to Veronica Lee.

DISCUSSION

Because the record is closed, plaintiff's application for preliminary injunctive relief will be treated as an application for a permanent injunction.² This approach is in conformity with Fed.R. of Civ.P. 65(a)(2). Plaintiff makes two primary arguments in support of her claim. First, she contends that BHA violated the notice requirements of 24 C.F.R. § 966.4 when it terminated her lease. Plaintiff argues that under these federal regulations BHA was required to give her thirty days notice of the proposed termination and to inform her of her right to a hearing on the dispute. Second, plaintiff points to federal regulations which provide that BHA may terminate her lease only if all applicable state regulations and requirements are met. According to plaintiff, because BHA failed to comply with Pa.R.C.P.D.J. Nos. 501 to 520, it acted illegally in declaring the tenancy abandoned.

BHA responds that plaintiff abandoned her apartment and that this fact obviated the need for lengthy, formal notice and hearing procedures. According to BHA, plaintiff's own violations of the lease terms excuse any subsequent shortcoming on the part of the authority. BHA attempts to justify its action by complaining that the federal and state lease termination procedures would have caused a substantial delay in repossessing the apartment, and by pointing to the public policy favoring full occupancy of available public housing units.

The federal regulations most relevant to plaintiff's claim are the lease termination requirements and grievance procedures contained in 24 C.F.R. §§ 966.4 to .59.³ Section 966.4(1) provides as follows:

(1) Termination of the lease. The lease shall set forth the procedures to be followed by the PHA and by the tenant in terminating the lease which shall provide:

(1) That the PHA shall not terminate or refuse to renew the lease other than for serious or repeated violation of material terms of the lease such as failure to make payments due under the lease or to fulfill the tenant obligations set forth in § 966.4(f) or for other good cause.

(2) That the PHA shall give written notice of termination of the lease of:

(i) 14 days in the case of failure to pay rent;

(ii) A reasonable time commensurate with the exigencies of the situation in the case of creation or maintenance of a threat to the health or safety of other tenants or PHA employees; and

(iii) 30 days in all other cases.

(3) That the notice of termination to the tenant shall state reasons for the termination, shall inform the tenant of his right to make such reply as he may wish and of his right to request a hearing in accordance with the PHA's grievance procedure.

The notice sent to plaintiff by BHA was deficient under these rules on two counts. First, the summary notice sent to plaintiff failed to inform her of her right to a hearing on the proposed termination. 24 C.F.R. § 866.4(1)(3) states without qualification that a notice of termination must inform a tenant of her right to reply and to request a hearing under the housing authority's grievance procedure. No exceptions to this duty to inform are authorized by the regulations, even where the authority may accelerate the initial notice period because of emergency circumstances. See 24 C.F.R. § 966.4(1)(2)(ii).

The importance of giving notice of hearing rights stems from the fact that a public housing authority must conform its lease termination procedures to certain constitutional mandates. Escalera v. New York City Housing Authority, 425 F.2d 853, 86 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970); Staten v. Housing Authority of Pittsburgh, 469 F.Supp. 1013, 1015 (W.D.Pa.1979); McMichael v. Chester Housing Authority, 325 F.Supp. 147, 148-49 (E.D.Pa.1971). The due process requirements outlined in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1969), make it clear that BHA must afford plaintiff an opportunity for a hearing before making a final decision to terminate her lease. McMichael, 325 F.Supp. at 149. While it is true that a tenant must request a grievance hearing within a reasonable time, see 24 C.F.R. §§ 966.54 and 966.55, waiver of a right to request a hearing cannot occur where plaintiff was never notified of her right in the first place.

Second, the notice sent by BHA afforded plaintiff only five days between the date of the letter and the threatened termination. Unless a health or safety threat existed, BHA was required to give plaintiff 30 days notice of a proposed termination. 24 C.F.R. § 866.4(1)(2)(ii) and (iii). BHA admits that the sole reason for its action was that plaintiff reportedly had "abandoned" the apartment.⁴ Without deciding whether or not abandonment occurred under principles of state law,⁵ I find that even if plaintiff had abandoned, BHA could not rely on reports to that effect to abbreviate the 30-day notice requirement to five days. In so finding, I do not denigrate the seriousness of the situation or the need for some action on the part of the housing authority. BHA properly entered the apartment and took steps to secure the premises. Nevertheless, BHA could not simply dispense with federally mandated notice (or grievance) procedures. The circumstances did not necessitate or justify immediate re-rental of the premises to a...