*1 \Y¡ We have parties’ considered all con- in support
tentions respective ap-
peals and have found them to be without
merit. The amended of the dis-
trict court is affirmed.
No costs. CINEA;
Barbara Bernardi; Sandra Ken
Bernardi; Wimbs, Judith on their own
behalf and on behalf of all others simi
larly situated; Betty Bendel State Constable Daniel
CERTO; Pennsylvania State Constable Taiber;
Fred Regan, Bernard Manager Allegheny Constable Services
County, individually and in their official
capacities; Cox; Nancy Robert A. Sobo
levitch; Siegworth. Patrick Cinea,
Barbara Sandra and Ken Bernardi Wimbs,
and Judith on their own behalf and on similarly behalf of all other situ
ated, Appellants.
No. 95-3168.
United States Appeals, Court of
Third Circuit.
Argued Dec. 1995. 6,May
Decided *2 Evalynn Well- (Argued), Haagensen Janice Ass’n, Legal Services
ing, Neighborhood PA, Appellants. Pittsburgh, Supreme (Argued), M. Holmes Howard Office Administrative Pennsylvania, Court PA, Courts, Philadelphia, Nancy Sobolevitch. Appellee STAPLETON, SAROKIN Before: ROSENN, Judges. Circuit H9 OF OPINION THE COURT thirty within days of the date of the notice order to possessions. retrieve her SAROKIN, Judge: Circuit 16, 1992, On March before the thirty-day Plaintiffs, a class of Allegheny County *3 period expired, had Certo, Constable Daniel judgment debtors, filed against suit Pennsyl- action, defendant in this entered the house vania constables and the Court Administra- levied property pursuant Cinea’s to a Pennsylvania, tor of alleging plaintiffs writ of execution issued justice. a district deprived were of their property without due levy, which was intended satisfy operation law of Pennsylvania’s money judgment in the landlord-tenant ac- governing rules the post-judgment levy and tion, covered “ANY AND ALL PROPERTY against property in proceedings BELONGING TO DEFENDANT AT AD- justices. before district Following a bench DRESS.” Although Constable Certo could trial, the district court entered for have taken the levied physi- into his defendants, plaintiffs appealed. For possession, cal it, he left as is customary, in follow, reasons that we will affirm. Cinea’s former subject residence to the levy. terms of the He then served at Cinea
I. her mother’s house with notice and execution. The Levy Notice of stated: Prior to the action, commencement of this “YOU WILL THEREFORE NOT RE- each of the named was embroiled MOVE THIS PROPERTY FROM THE separate landlord-tenant proceeding before PREMISES WITHOUT AN ORDER justice a district in Allegheny County. As a FROM ME.” result of these proceedings, they were evict- Because certain pieces of the furniture homes, ed from their money judgments that was levied upon belonged to Cinea’s against them, entered and had their personal mother, her mother filed a property claim to upon in satisfaction of that recover them. Following a hearing, a dis- judgment. Their individual stories are as justice trict ordered the release of Cinea’s follows. mother’s on March 19. Pursuant Pennsylvania rules for levy and execution A. Barbara Cinea proceedings, the landlord timely filed a ob- Cinea, Barbara recipient welfare who jection in the state court of common pleas. lived eight-year-old with her son in Pitts- Meanwhile, for reasons that are unclear from burgh, fell behind on payments her rent record, Cinea’s mother did not receive when her welfare benefits were temporarily her property. The court scheduled the hear- suspended. In a proceeding before a district ing on September landlord’s justice, landlord, Cinea’s Cox, Robert ob- 15,1992 nearly six months after the district — tained a judgment against her for rent due justice’s order in Cinea’s mother’s favor. she occu- Cinea herself also filed an to the pied. levy, arguing that the value of the property 3, 1992, On March in accordance with that far seized exceeded the amount of the under- judgment, Cinea was served with an eviction lying money ($795) and that Although notice. the eviction was not to take improper was in that it person- included effect until March Cinea and her son fled al, unsalable happened items. What next is hurriedly on March 4 in response to threats not clear from the record. appears, how- landlord, leaving behind all ever, prevailed Cinea part, least in belongings. The following day, a constable justice that the district ordered the re- posted a notice on stating door that the lease of much of that had been locks had changed been instructing subject Ci- levy. Letter Order District nea to arrangements make with her (March 1992).1 landlord Connery Ulti- 1. Cinea testified before district court that the Tr. argues appeal, Cinea anything" "didn’t do respect with the district Appel- ruled in her favor. objection, to Cinea's Brief, and that appealed. Cinea p. lants’ 8. The Findings district court’s Cinea, retained she action, Cinea the instant filing
irately, after of sale. the time up until all recovered landlord her settled Cinea’s released landlord property. levy nor objected to the neither Wimbs well. upon settlement mother’s regarding landlord to contact attempted Consequently, judgment. satisfaction landlord.2 Bernard! sold to the Ken B. Sandra the levied evicted were Bernardi and Ken Sandra II. January of 1992. apartment out, Consta- actually moved they had Before *4 of themselves on behalf filed suit Plaintiffs action, in this Taiber, defendant a Fred ble County Allegheny living in persons and all in satis- property their of upon certain levied subject to or will been be has property whose entered money judgment of a $606 faction justices the district before and action. in the eviction against them that County, alleging Allegheny of Cinea, given Levy, the one like of Notice in forth set procedures and execution any to remove not Bemardis ordered Gov- Procedure of Pennsylvania Rules Civil premises without from property levied Dis- Proceedings Before and Actions erning Tai- Constable the constable. of permission (hereinafter “District trict Justices they that would Bemardis told ber bases Rules”) are unconstitutional.3 order. they violated this if imprisoned levy procedures claims are of their the use judgment debtors deprive daughter succeed- the Bemardis’ Although of the due violation to sale in prior property her belonging to recovering property in ed Fourteenth and of the Fifth process clauses in satisfaction upon levied been seizure an unlawful work and Amendments debt, themselves the Bemardis parents’ her Amendment. the Fourth in violation They levy. moved objection to the no filed judgment, declaratory for prayed Plaintiffs eviction, leaving the to their out puni- relief, and compensatory injunctive was behind. The levied damages. tive by the constable. sold subsequently de- individual initially named six Constables State Wimbs C. Judith fendants: Sieg- Taiber, Patrick Certo, Fred Daniel 21, 1991, a district November On Manager of Consta- worth; Regan, Bernard $1,107 a of eviction an order entered County; Robert Allegheny ble Services She against Wimbs. Judith money landlord; and Cox, former plaintiff Cinea’s address, where to a subsequently moved new Sobolevitch, Administrator Court Nancy upon enumerated levied Certo Constable motion, how- Upon plaintiffs’ Pennsylvania. satisfaction personal items were Siegworth ever, Cox defendants “any and all money judgment, prior to case trial. from the dismissed the defendant personal jury Feb- a on tried without The ease was plaintiffs other Like the address.” court The district ruary 21 and awith Notice action, served Wimbs of defen- in favor verdict a directed removing entered forbade Levy that do plaintiffs order which Regan, from dant from the order property without district February appeal. not On the Bemardis constable; unlike Bendel, matter, Betty plaintiff in this 2. The final states clarify point, it because not Fact does not dis- hearing is and thus join held not merely the district did claim, mother’s one on her opinion. claim and Cinea’s in this cussed of "some of the release subsequently ordered the dis- App. 36. Our review property.” the trict ly claims state-law asserted also 3. Plaintiffs was similar- justice’s release abuse wrongful conversion simply releases unavailing; document constables, challenge they do not but against the items, except certain enumerated "all” claims disposition of these court's the district property released indicating whether the without belonged appeal. to her mother. to Cinea or er, process,” in favor of all re- legal “‘“[d]ue court entered unlike some rules, maining conception defendants. is not a technical awith time, fixed content place unrelated to appeal, challenge only plaintiffs On ” (citation omitted). circumstances.’ Id. On rulings court’s on the constitutional “ contrary, it is ‘flexible and calls for such They following is- claims.4 raise the three procedural protections as particular situ- (1) sues our review: whether ” (citation omitted). ation demands.’ Id. whose is held outside their debtors here, Under presented the circumstances pending jus- a district must determine procedures whether the set ruling constitutionally tice’s are afforded forth in the District “repre- Justice Rules (2) post-deprivation adequate remedy; respective sent[ ] fair accommodation of the deprivations whether the that the Finberg interests of creditor and debtor.” during levy appeals Sullivan, (3d Cir.1980). 634 F.2d process resulted from the levies or (3) evictions; and whether the levies at issue degree axiomatic that protection the Fourth violated Amendment procedural protection required by the Due against unlawful seizures insofar as offi- *5 proportional Process Clause is to the extent levy apparent authority cial form lent to the case, of the deprivation. In this the extent of property of landlords’ unlawful retention the deprivation the dispute. is in ar of evicted tenants. Because their we believe gue they deprived that were proper of their first, subpart is a of the second issue the ty during period the between and execu (1) (2) together. will address issues and Levy tion the Notice of the of and actions notices, the constables who served those be
III. cause the Notice and actions indicated to jurisdiction pursuant plaintiffs The district court had of that removal § to 1343. the levying expose 28 U.S.C. As is an site of would them to the court, final of a from a we have risk of criminal sanctions. Defendants coun jurisdiction appellate deprived to ter plaintiffs only 28 U.S.C. that the levies of § right the property, to alienate their and that
it was the evictions rather than the levies deprived plaintiffs that possession the and IV. property. use of their We review the district court’s find ings clearly fact a plaintiffs, under erroneous stan well be the case that findings through dard and its de law novo. Louis some combination the Notice of Family Levy Epstein Partnership W. v. Kmart and forms the statements the consta- (3d 762, Cir.1994). bles, Corp., 13 impression they F.3d 765-66 under were the that
could
not remove their
from the
quarters
they
from which
had been evicted.
V.
However, neither the text of
nor
the forms
question
We turn first
to the
supports
underlying
assumption.
law
plaintiffs
post-depri
whether
were afforded a
remedy adequate
satisfy
Levy
vation
to
plain-
due
Notice
forms served on
process requirements
they
Fifth
Four
tiffs
warned them that
would face crimi-
penalties
they
prop-
teenth Amendments. “The fundamental re
nal
if
moved their levied
quirement
erty
opportunity
is the
permission
levying
due
without the
meaningful
heard ‘at
absolutely
time and
a
constable. The forms did not
for-
”
meaningful
Eldridge,
plaintiffs
maimer.’
v.
Mathews
bid
to remove the
319, 333,
902,
424
96
premises,
plaintiff
U.S.
S.Ct.
47
landlords’
and no
(citation
(1976)
omitted).
allegation.
L.Ed.2d 18
Howev- makes
such
Nor
there
ap-
proper disposition
prompt
4. Defendants
did
Certo
Taiber
not enter
of the business of
pearances
respect
appeal, apparently
justices
with
to this
peace,”
all courts and
Penn. Const.
Thus,
having
trator,
IV,
settled.
the State Court
10(a),
Adminis-
appellee.
§
art.
remains the sole
generally responsible
who is
for "the
Thus, if
premises.
property on the
sought
consta-
levied
any plaintiff
evidence
eviction,
plaintiff
each
would have
posses-
not for the
to move her levied
permission
ble’s
Wimbs,
prop
use
of her
retained the
Judith
was refused.5
sions and
levy. Although
apparently
erty pending
from the
Bernardis,
Betty
did
Bendel
deprivation
proper-
works a
any attempt move their
still
not make
posses
retains
even if the
asked Constable
ty.
she
Cinea testified
Green,
sion,
1989WL
Montgomery
v.
one
Certo to release
(E.D.Pa.1989)(not reported
F.Supp.),
former
*4
told her that her
point,
that he
but
judgment debtors retain
over her
the fact that
one with control
landlord was the
of their
renders
to take
use
possessions
that she would have
dispute
deprivation slight
not
upit
him. Cinea does
reduces
so;
assertion,
could
do
due.
nor
she
amount
truth of this
changed the locks
her former landlord
course,
right
has the
Of
constable
had nei-
building, and the constable
on the
pos
from the
to remove
authority to
without the land-
ther the
enter
debtor at the time
session of
entering
nor a means of
permission
lord’s
levy.
imposition
As none of
key.
the landlord’s
without
type
depri
named
law,
Moreover,
a vation,
under
they
standing to
do not have
subject to
sanc
judgment debtor is
criminal
Lujan
challenge
ground.
on this
rules
only
555, 560-61,
if
tions
she
Wildlife, 504 U.S.
Defenders of
2136-37,
those unreasonable into the levies transform upon the infringe not might 1020 of Rule vision Fourth Amend- violation be- debtors seizures judgment rights of due hardship that recognize the we While of all ment. them deprive completely it would cause of the combina- a result as pending use eviction, cannot conclude levy and justice order tion despite a district appeal, under the rules or the constables either be- However, is not that issue favor. Constitution. violate the they acted it We which here. decide us, we do not fore (1) here, where, simply that conclude pos- physical not take does levying constable VII. a debtor of the session reasons, affirm we will foregoing For the least) in (theoretically at it leaves rather but district court. judgment of the (2) debtor, of the releasing the an order justice issues concurring: STAPLETON, Judge, Circuit levy, and property from judgment debtor’s to Rule stayed pursuant (3) is not observes, order case does the court As that several the fact appeal, pending issue. 1020 constitutional substantial present court elapse may before concluding or months are somewhat weeks for so My reasons valid- finally determines in the pleas assigned different, common than those not render does ity opinion. court’s District stay provision automatic law. of state under color a seizure A process. due violative Rules Encyclope- Law See, e.g., 15 (1959). dia, §§ Such Execution VI. of a deprivation constitutes seizure ap or argument purposes whether second due interest violated permis- the levies issue ask the may peal is that not the un against proper- protection seizing to move Amendment officer Fourth sion official seizing as the insofar officer seizures lawful not ty and whether land authority to con- apparent judgment debtor form lent to allow the choose retention attributes lords’ unlawful some exercise tinue Sullivan, we dis again, Here Finberg tenants. ownership. their evicted See pro Cir.1980). (3d Amendment court’s the Fourth As the agree. While *8 F.2d 59-60 criminal however, rights demonstrates, appropriate outside tects opinion context, v. Cook was Soldal this case seizure context search in the factual process 60, 56, Illinois, 113 S.Ct. Rules. U.S. Justice County, 506 District under the afforded (1992), a seizure 543, 121 seizure 450 L.Ed.2d a court authorized levy was Amend the Fourth only violates duly final entered on based 71, 113 Id. at relief unreasonable. to secure if it is afforded ment was opportunity an (“‘reasonableness is still seizure with- at 549 or excessive S.Ct. an erroneous Amend the Fourth days. This eight under ultimate standard’ maximum ain omitted). ment”) (citation due under minimum exceeds Finberg. interpreted in as Constitution case, au had the constables In position in a appellants here None in the plaintiffs’ thority arguable constitutional only advance from a district order of of an form Rules. District presented issue noted Supreme Court justice. As inteipreted automati- 10201 were If Rule Soldal, showing of unreasonable- making a of common the court further order Until provides: 1. Rule justice of the state- receipt by pleas, eally precluding a judgment debtor with a meritorious claim relief an errone- STATE OF PENNSYLVANIA, Petitioner, ous or excessive seizure from securing that prior
relief to a final merits decision RILEY, Richard W. Secretary of the Pleas, Court of Common United Department States adversely application affected Education, Respondent. Rule as so interpreted would be able raise a substantial constitutional issue.2 stay No. 95-3308. provided by 1020,however, Rule is triggered United States Court of Appeals, only by filing of “a objec- statement of Third Circuit. i.e., an the Court of tion” — —with Thus, Common Pleas. this substantial issue Argued Jan. 1996. presented would be only decision if an May 15, Decided appellant objec- been successful on tion before the district but the release
of her property stayed had been under Rule
1020 when the appealed landlord to that
court. No one other than Barbara Cinea in ease filed an with a District
Justice. Cinea filed an objection and secured releasing some of her property.
The district fact, court’s findings of
indicate that the appealed landlord only her
mother’s and the record evidences
no from the order releasing portion
of her personal own property. Because no
one involved this case adversely af-
fected Rule the court properly ex-
presses opinion no interpretation its
constitutionality. *9 operate ment shall stay any as a object construed, stay. As so Rule 1020 proceedings may be affected only would protect serve debtor's proceedings on the statement. property from appealed sale when he she has from a decision in favor of necessary is not to construe Rule 1020 in this the creditor. Given that the most natural provides Rule manner. execution stay “a reading and contrary one would raise proceedings be affected substantial issues trader the United appeal. the” States At the Consti- time the Rule comes into tution, play, Supreme I believe and, Pennsylva- Court completed has been of what done, nia likely remains to would be adopt more proceed- interpreta- execution sale ings would seem to be tion. the most likely intended