Gross v. FoxGross v. Fox
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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,
Count I of plaintiff’s complaint seeks a declaratory judgment of the unconstitutionality of
Our opinion on June 30, 1972 held that if
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
Under
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 dis-trained goods may not be removed from the premises 2 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).
“* * * [I] t 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 *1167 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 seizure. He would also regain possession of the property, without posting bond, if, of course, he ultimately prevailed at a hearing on the merits of the conflicting claims to possession of the replevied property.
The Court once again held that procedural due process requires that there must be a hearing before there is a taking of any significant property interest from a person on the application of another, declaring the replevin provisions unconstitutional. See Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Coe v. Armour Fertilizer, 237 U.S. 413, 35 S.Ct. 625, 59 L.Ed. 1027 (1915).
“If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented. At a later hearing, an individual’s possessions can be returned to him if it [sic] was unfairly or mistakenly taken in the first place. Damages may even be awarded to him for the wrongful deprivation. But no later hearing and no damage award can undo the fact that the arbitrary taking that was subject to the right of procedural due process has already occurred.” Fuentes, 407 U.S. at 81, 92 S.Ct. at 1994, 32 L.Ed.2d at 570-571.
Pennsylvania law permits a landlord acting on his unilateral claim that rent is owing to levy on property found on a tenant’s premises. This distraint may deny the tenant the use of the property (see p. 1165,
supra)
and will inevitably deny him the right to dispose freely of his property. Not only is there no provision for prior notice and hearing before this taking of the tenant’s “property”, but the landlord is only required to give notice to the tenant within five days following the distraint.
“* *- * [T]he landlord is permitted to retain this remnant of feudal authority, and thus he is made the judge in his own cause upon the terms of conducting himself with perfect uprightness, and with a careful regard to the rights of the tenant.”
McElroy v. Dice, 17 Pa. 163, 168 (1852).
Modern notions of due process leave no room for landlords to be judges in their own causes. Damage actions for trespass by the tenant after the fact do not provide a consitutional substitute for prior notice and hearing.
This is not one of those truly unusual situations where outright seizure without opportunity for a prior hearing is constitutionally justifiable. E. g., North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908). “ * * * [S]tate intervention in a private dispute hardly compares to state action furthering a war effort or protecting the public health.” Fuentes, 407 U.S. at 93, 92 S.Ct. at 2000, 32 L.Ed.2d at 577. There is noth *1168 ing “which indicates that the distress procedure is a response to an extraordinary situation requiring special protection to a state or creditor interest.” Santiago, supra, 319 F.Supp. at 294-295.
We now hold that Sections 302 et seq. Of the Pennsylvania Landlord and Tenant Act,
The stipulation of facts agreed to by the parties on January 19, 1972 specifically provides that it is limited to issues arising under Count I (see document 27). Under these circumstances, since the defendants agreed to the stipulation without any notice that counsel fees might be awarded based on such stipulation, we are now convinced that counsel fees should not be awarded.
Notes
.
. If the goods are unlawfully removed, the landlord may initiate a trespass action and recover treble damages plus the costs of suit against the offender or the owner if the goods have come into his use or possession.
. The Fourteenth Amendment “has been read broadly to extend protection to ‘any significant property interest’.” Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, 573 (1972).
. Since Fuentes, the tenant cannot even regain possession oí his property by posting a replevin bond.