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October 26, 1970

Andres and Nancy SANTIAGO and Alvin and Florence Devalos, on behalf of themselves and all others similarly situated, Plaintiffs,
Lawrence P. McELROY, Edward Cohen, Larry Snyder, Morris Winitz, Warren G. Brown, Al Sacks, Morton L. Pinsker, Leonard D. Rosenfeldt, Jerold J. Cohen, Joseph Stone, George Landsberg, David H. Brown, Howard Garbeil, Harry Chernoff, Defendants, and Joseph H. Kass Co., Intervening Defendant

The opinion of the court was delivered by: LORD, III

This action was instituted on November 25, 1969, by Andres and Nancy Santiago and Alvin and Florence Devalos, on behalf of themselves and all persons similarly situated. The complaint alleged that the defendants *fn1" perform levies and sales pursuant to the distress for rent procedures set forth in the Landlord and Tenant Act of 1951, 68 Pa. Stat. §§ 250.302-313, and argued that such acts by defendants violate the due process and equal protection clauses of the Fourteenth Amendment *fn2" and the provisions of 42 U.S.C. § 1983. Plaintiffs prayed that the court (1) enjoin the defendants from levying on or selling goods pursuant to the distraint procedures of the Act of 1951, and (2) declare that levies would be equally unconstitutional if performed pursuant to the common law of distress. The court issued a temporary restraining order on November 25, 1969, which ordered defendants Cohen and Snyder not to sell or otherwise interfere with the named plaintiffs' possession of their property.

After the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281-2284, the temporary restraining order was continued until a formal hearing could be held. Such a hearing was held on December 12, and thereafter (1) the plaintiffs' motion for determination of the class, defined in the motion as "* * * the class of low and moderate income tenants residing in the City of Philadelphia, Pennsylvania," was granted, (2) the Philadelphia Board of Realtors' motion to intervene as a defendant was conditionally granted, and (3) a preliminary injunction was entered ordering

"* * * that all defendants who have been served or who are represented by counsel of record, 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 members of the plaintiffs' class or their families, and from interfering with the plaintiffs' possession and control of the aforementioned personal property of the members of the plaintiffs' class, pursuant to or under color of Article 3, Section 302 of the Pennsylvania Landlord and Tenant Act of 1951 * * *."

 On December 12, 1969, the defendants also filed a series of motions under Rule 12, Fed. R. Civ. P.; argument on these motions was postponed until the final hearing set for January 16, 1970. On December 17, 1969, Joseph H. Kass Co., a landlord, moved to intervene as a defendant. On January 16, 1970, the final hearing was held, the preliminary injunction was extended to enjoin, in addition to sales, the "* * * advertising for sale, or threatening to sell * * *", and the case was taken under advisement.

 Plaintiffs herein are challenging a procedure of undoubtedly ancient origin. 2 Pollack and Maitland, The History of English Law *573. Blackstone defined distress as the practice of "* * * taking a personal chattel out of the possession of the wrong-doer into the custody of the party injured, to procure a satisfaction for the wrong committed." Blackstone, Commentaries *6. Though this originally seems to have been a thoroughly extra-judicial procedure, 2 Pollack and Maitland, The History of English Law *573, by the thirteenth century most distresses were closely regulated and could be made only if leave from a court had been first obtained. Id.

 Certain forms of distress retained the character of self-help, however, the prime one being the right of landlords to distrain tenants for rent in arrears. Id. at*573, 574; 3 Holdsworth, History of English Law 285 (3 ed. 1923). The common law permitted the landlord, independent of the legal process, to take his tenant's chattels and hold them, but it sternly prohibited him from selling the distrained property. 10 Halsbury, Laws of England 440 (2 ed. 1933). *fn3" It was only with the passage of the Sale of Distress Act of 1689, 2 Will. and Mar., ch. 5, § 2, that the landlord was empowered, if certain circumstances obtained, *fn4" to sell the distrained goods in satisfaction of the claim for rent.

 If a landlord did not distrain in accordance with legal requirements, he exposed himself to liability in a suit by the tenant. The tenant's sole remedy at early common law was to post security and sue in replevin. 3 Holdsworth, History of English Law 283 (3 ed. 1923). *fn5" By the end of the medieval period, however, the action of trespass was allowed to be used as an alternative to replevin, id. at 285, and, beginning in the late sixteenth century, the spheres of replevin and trover began to overlap. Id. at 285, 286. Even though replevin ceased to be the only available remedy, however, it continued to occupy a unique and essential place in the remedial scheme: it seems to be the only form of action which assured a tenant that, until a court ruled adversely to him on the merits of the underlying claim, (1) he would have a right to possess the chattels that had been levied upon, and (2) those chattels would not be sold pursuant to the Sale of Distress Act of 1689.

 In Pennsylvania before 1772, the landlord's remedy of distraint was governed, generally, by the English common law. The Landlord and Tenant Act of March 21, 1772, 1 Sm. L. 370 (repealed 1951), marked the first attempt in Pennsylvania to codify this law. Comment, The Pennsylvania Landlord and Tenant Act of 1951, 13 U. Pitt. L. Rev. 396, 397 (1952). But this Act went beyond mere codification: it expanded the landlord's rights by including a provision which empowered landlords to sell distrained goods. *fn6"

 The Landlord and Tenant Act of April 6, 1951, 68 Pa. Stat. Ann. § 250.101 et seq., the next legislation in the area and the statute which governs today, made no fundamental changes in the rights of landlords to distrain or in the rights of tenants to protect themselves in instances of distraint.

 Under the Act of 1951, the landlord or his duly authorized agent is empowered, whenever the landlord concludes that rent is due and owing, to distrain all personal property on the tenant's premises which is not statutorily exempt *fn7" from levy. 68 Pa. Stat. Ann. § 250.302. To render the levy complete there must be, generally, some seizure of the goods distrained on. Derbyshire Bros. v. McManamy, 101 Pa. Super. 514 (1931). Thereafter, the landlord has the right to impound the distrained property. McElroy v. Dice, 17 Pa. 163, 168 (1852).

 The tenant may, if he acts within five days after the notice of the levy, *fn8" regain possession of his property by posting a bond for double the value of the goods distrained and suing in replevin. 68 Pa. Stat. Ann. § 250.306 and 12 Pa. Stat. Ann. § 1824. If there is no replevin action instituted within this five-day period, then the landlord may proceed to have the goods appraised, § 250.308, and to notify the public of the date of sale. § 250.309. *fn9" On the date fixed for sale the "* * * sheriff, deputy sheriff, constable or deputy constable * * *" publicly sells the distrained goods. Id.

 In evaluating the contention that this scheme deprives plaintiffs of their constitutional rights, we consider the following evidence which we find as facts.

 1. Plaintiffs Andres and Nancy Santiago, together with their eight children, currently occupy and rent premises in Philadelphia. Prior to August 1969, Mr. Santiago's take-home income, supplemented by a public assistance grant, was approximately $160 per week. After a disabling illness, the family's income dropped in August, 1969, to approximately $120 per week, coming entirely from a public assistance grant. The family has no savings, and the bimonthly assistance check is used almost entirely to pay for outstanding bills and to buy food stamps.

 2. The family moved to its present residence in 1966, contracting to pay a monthly rent of $65. The family was rejected for Public Housing in 1968 as "overincome," but an application following Mr. Santiago's illness was accepted, although he was told there would be a substantial waiting period.

 3. The family's present residence was declared "unfit for human habitation" on July 22, 1968. All rents between that time and October 10, 1969, were paid into escrow, pursuant to the Pennsylvania Rent Withholding Act, 35 P.S. § 1700-1. The first six months rent was returned to the Santiagos on February 26, 1969, because of the landlord's failure to make repairs.

 4. The "unfit" certification was removed in June, 1969, and at about the same time or shortly before a "For sale" sign was placed on the premises. In October, 1969, the rent paid into escrow through October 10, 1969, was paid to the owner of the premises.

 5. Shortly thereafter, the Santiagos received a letter postmarked October 17, 1969, from a real estate management firm, informing them that the firm represented the new owners and that the rent was being increased to $80 per month. The rent for November was due on or before November 1, 1969.

 6. The following day Mrs. Santiago took this letter and a copy of her lease to the Philadelphia Fair Housing Commission. Someone at that office called the management company and told them that under the terms of the lease thirty days' notice was required to alter its terms. The company was further informed that the rent could not be paid until the ...

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