Powell v. Housing Authority of Pittsburgh

• Decision Date: 20 December 2002
• Citation: 571 Pa. 552,812 A.2d 1201
• Parties: Beverly POWELL, Appellee v. HOUSING AUTHORITY OF THE CITY OF PITTSBURGH, Appellant.
• Court: Pennsylvania Supreme Court

812 A.2d 1201

571 Pa. 552

Beverly POWELL, Appellee v. HOUSING AUTHORITY OF THE CITY OF PITTSBURGH, Appellant.

Supreme Court of Pennsylvania.

Argued March 4, 2002.

Decided December 20, 2002.

Thomas Michael Hardiman, Dianna Calaboyias Wyrick, Pittsburgh, for appellant, Housing Authority of City of Pittsburgh.

Richard Stephen Matesic, Pittsburgh, for appellant, Beverly Powell.

Witold J. Walczak, Martha Schaff Helmreich, for appellee amicus curiae, American Civ. Liberties Union of PA.

Evalynn Welling, for appellee amicus curiae, Metropolitan Tenants Organization.

Before: CAPPY, CASTILLE, NIGRO, NEWMAN SAYLOR and EAKIN, JJ.

OPINION

Justice CAPPY.

In this case, the appellee, Beverly Powell, received tenant-based housing assistance of the certificate type under Section 8 ("Section 8") of the United States Housing Act of 1937 ("Housing Act"), as amended, 42 U.S.C. § 1437f. Pursuant to regulations ("Regulations") promulgated by the United States Department of Housing and Urban Development ("HUD"), the appellant, the Housing Authority of the City of Pittsburgh ("Authority"), terminated Appellee's assistance when two members of her family engaged in violent criminal activity. Concluding that the Regulations as written are excessive in scope, the Commonwealth Court held that a public housing agency ("PHA") may terminate Section 8 benefits only for that violent criminal activity which threatens the health, safety, or right to peaceful enjoyment of the premises by other residents or which threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the Section 8 dwelling. For all the following reasons, we conclude that the Commonwealth Court erred. Accordingly, we reverse and remand for further proceedings.

In the Housing Act, Congress declared that it is this Nation's policy to employ its funds to "remedy the unsafe housing conditions and the acute shortage of decent, safe and affordable dwellings for low income families", and to vest responsibility, flexibility and accountability in the PHAs, the entities that administer the programs which provide federal housing assistance. See 42 U.S.C. § 1437(a)(1)(A)-(C), § 1437a(b)(6). There are several forms of assistance, each with its own features. For example, while public housing assistance is provided to those who lease a unit in a dwelling that a PHA owns and operates, see 42 U.S.C. § 1437d(l), Section 8 assistance is provided to those who lease a dwelling in the private sector. 42 U.S.C. § 1437f(b),(o).

The PHAs admit applicants into the Section 8 tenant-based assistance programs they administer. See 24 C.F.R. § 982.4(b). In such a program, applicants select a suitable unit to lease. 24 C.F.R. § 982.1(a)(2). If the PHA approves the tenancy, the PHA and the owner enter into a housing assistance payment contract ("HAP contract") under which the PHA makes rental payments to subsidize occupancy. 24 C.F.R. § 982.4(b). In turn, the owner and the now-Section 8 participant enter into a lease for the subsidized unit. 24 C.F.R. §§ 982.4, 982.308. Unlike public housing assistance, which attaches to the rented unit, Section 8 tenant-based assistance attaches to the tenant. This means that a participant in a Section 8 tenant-based program may move to another dwelling with continued assistance when his assisted lease ends. 24 C.F.R. § 982.314.¹

Under a final rule ("Rule") issued in 1990, HUD authorized the PHAs "to deny or terminate [Section 8 tenant-based] assistance to applicants and participants in [Section 8] programs if family members engage in drug-related criminal activities or in violent criminal activities." 55 Fed. Reg. 28538 (July 11, 1990).² In doing so, HUD sought to further the purpose of the Housing Act to provide eligible persons with decent, safe, and sanitary housing by encouraging applicants for and recipients of Section 8 benefits to refrain from such activities. Id. at 28538-39.

In the late 1990's, the Authority, the PHA for the City of Pittsburgh, admitted Appellee into its Section 8 tenant-based assistance program ("Section 8 Program").³ Accordingly, Appellee made arrangements to lease an apartment in the Brighton Heights area of Pittsburgh, which the Authority approved. Appellee and the apartment's owner executed a lease agreement for an initial term of twelve and one-half months. In January 1998, Appellee and her three sons began to reside in the assisted unit.

As a Section 8 Program participant, Appellee signed a Notice of Obligations, which set forth the obligations HUD imposed by regulation upon Appellee and her family members ("Family Obligations"). 24 C.F.R. § 982.551 (1998). The Family Obligations provided that "[t]he members of the family may not engage in drug-related criminal activity, or violent criminal activity." 24 C.F.R. § 982.551(l) (1998). Under one of the Regulations, the Authority was empowered to terminate assistance for violations of any of the Family Obligations. 24 C.F.R. § 982.552(b)(1) (1998). In addition, at the time of Appellee's termination from the Section 8 Program, one of the Regulations stated that the Authority could terminate assistance if any family member engaged in violent criminal activity. 24 C.F.R. § 982.553(a)(2) (1998).

On August 25, 1998, Appellee's two teenage sons carjacked a vehicle in the parking lot of a supermarket located just under a mile from Appellee's apartment. During its commission, Appellee's sons used pepper spray on the car's elderly occupant and physically removed her from the car. After driving the car from the lot, Appellee's sons left the vehicle on the street some four blocks from Appellee's residence.

As a result, on September 15, 1998, the Authority sent Appellee a notice that her assistance was terminated for violation of the Family Obligations. Appellee filed a grievance. A Hearing Officer in the Authority's Section 8 Department held an administrative grievance hearing and issued a decision on November 30, 1998. The Hearing Officer upheld the termination of Appellee's assistance, finding that Appellee's sons were involved in a carjacking; that Appellee was given notice of the Family Obligations; and that Appellee was in violation of the Family Obligations for criminal activity.

On December 16, 1998, Appellee filed a statutory appeal in the court of common pleas, contending, inter alia, that the Regulations are invalid under Section 8 and may not be used to terminate her assistance. It was Appellee's position that while Section 8 authorizes landlords to terminate a tenancy in the event a family member commits certain crimes, it does not allow the PHAs to terminate Section 8 assistance on such a basis. In addition, Appellee asserted that the Regulations exceeded the scope of the legislation which HUD cited to support them.⁴ The common pleas court applied the test the United States Supreme Court set forth in Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), for analyzing the lawfulness of a federal agency's regulations to Appellee's claim that the Regulations were invalid.⁵ While the court rejected Appellee's contention that Congress never intended to permit HUD to interfere with the landlord-tenant relationship by terminating a tenant's Section 8 benefits based on the criminal activities of family members, the court agreed with Appellee that the scope of the Regulations was excessive.

In its Chevron analysis, the common pleas court first determined whether there was a gap in Section 8 for HUD to fill. In doing so, the court set forth the terms of three provisions which concern a landlord's ability to end an assisted tenancy: § 1437f(d)(1)(B)(iii) of Section 8; a HUD regulation relating to Section 8, 24 C.F.R. § 982.310; and 42 U.S.C. § 1437d(1)(6), a subsection in the public housing statute. Section 8 in § 1437(d)(1)(B)(iii) stated (and continues to state) that "any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants [or] any criminal activity that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the [Section 8] premises" engaged in by, inter alia, a tenant or a member of his household shall be cause for termination of the assisted tenancy. 42 U.S.C. § 1437f(d)(1)(B)(iii).⁶ HUD's regulation at 24 C.F.R. § 982.310 tracked 42 U.S.C. § 1437f(d)(1)(B)(iii)'s language.⁷ The public housing statute in § 1437d(l)(6) required (and continues to require) that a PHA use leases which state, inter alia, that "any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants" engaged in by a tenant or a member of his household shall be cause for termination of the public housing tenancy. 42 U.S.C. § 1437d(l)(6).

Next, the court noted that "[t]here is no legislation which expressly authorizes a[PHA] to terminate assistance to a Section 8 tenant based on criminal activity." Court of Common Pleas Opinion of May 25, 1999 at 8. The court reasoned that the source of this omission was Congress' belief that "the problem ... it [Congress] was addressing (protection of other Section 8 tenants and persons residing in the immediate vicinity of the Section 8 housing) had been solved through the enactment of the legislation authorizing the owner to terminate the lease [at 42 U.S.C. § 1437f(d)(1)(B)(iii)]." Id. The court concluded, however, that the "problem" of protecting other Section 8 tenants and persons residing in the immediate vicinity of the Section 8 unit had not been solved by 42 U.S.C. § 1437f(d)(1)(B)(iii)'s passage in all cases because an owner who does not live where the assisted dwelling is located may not evict a tenant for fear of not finding a replacement. Thus, the court concluded that there was a gap in Section 8 for HUD to fill with regulations which would...