SUR PLEADINGS AND PROOF
VAN DUSEN, Circuit Judge.
This case is now before the court on plaintiffs' application for an expansion of the preliminary injunction entered September 22, 1970 (N.T. 212 of Document 20), and for a permanent injunction (N.T. 118).
The complaint was filed on July 17, 1970, by Betty Sellers and Adella May
on behalf of themselves and all persons similarly situated. The complaint alleges that the defendants,
under the provisions of the Landlord and Tenant Act of 1951, 68 Pa. Stat. §§ 250.302-313, and the customs and usages associated therewith, conduct levies and sales in distress for rent and charge tenants for these services the fees set by law. Plaintiffs seek relief under 42 U.S.C. § 1983 and claim that these acts violate the due process and equal protection clauses of the Fourteenth Amendment, and also contravene the Fourth and Ninth Amendments in that the distraint procedures involve unreasonable searches and seizures by public officials and unjustified infringements upon the constitutionally protected rights of privacy and the sanctity of the home. Finally, plaintiffs claim a chilling effect upon tenants in the exercise of their constitutionally protected rights to organize, to report Housing Code violations, and to take advantage of their statutory and common law rights and remedies to improve their housing conditions.
On October 26, 1970, the opinion by a three-judge court in Santiago v. McElroy, 319 F. Supp. 284 (E.D. Pa. 1970), was filed, invalidating the sale provision of the Act
on behalf of a class of plaintiffs made up of the tenants in the City of Philadelphia with an income within the range established by the OEO from time to time as the income of a poor urban family. Id. at 290-291.
Plaintiffs in this case seek to expand the class to include persons with a moderate income as well as poor persons. Moreover, plaintiffs request that we declare all the sections of the Landlord and Tenant Act of 1951 unconstitutional and not merely the sales provision. Thus, plaintiffs seek an order declaring invalid those sections of the Act providing that a tenant's personal property is subject to distress for rent due, the drawing up of the tenant's list of furniture and other goods, the notice in writing of the distress,
and the restraints on removal of the distrained property.
Plaintiffs pray that this court (1) enjoin the defendants from executing levies and sales in distress for rent with respect to the named plaintiffs and members of the class of low and moderate income tenants residing in Delaware County, Pennsylvania, and (2) declare Article III, Section 302 et seq., of the Pennsylvania Landlord and Tenant Act of 1951 unconstitutional on its face or as applied to the plaintiffs and the class they represent. The court issued a temporary restraining order on July 17, 1970.
On August 13, 1970, a three-judge court was convened pursuant to the provisions of Section 2284, Title 28, United States Code. Hearings were held on September 11 and 22 and December 18, 1970.
Appendix A contains a statement of the facts as found by the court.
I. Determination of the Class
The plaintiffs Edmonds and Sellers, as well as the witness Turoski, fall within the class defined in our order of September 22, 1970, as including tenants who have an income which qualifies them as poor under the guidelines published periodically by the Office of Economic Opportunity.
No evidence has been presented as to the exact income of the witness Hawkins, although she testified that she received public assistance. See page 236, infra, and N.T. 89-90. The remaining witness, William McGehean, clearly has an income in excess of the guidelines and therefore does not fall within the class as defined in such order. However, McGehean has not shown a violation of his constitutional rights in the use of the distraint procedure
and testified solely as a witness. For these reasons, the record does not justify expansion of the class.
We will permit the named plaintiffs to maintain the suit, except as to Fourth Amendment claims, on behalf of the class as defined in the order of September 22. As stated under IV below, the claims of plaintiffs do not include claims of violations of the Fourth and Ninth Amendments and hence they are not in a position to adequately represent the class as to such claims (see paragraph 14 of the Complaint).
We have subject matter jurisdiction of this suit for the reasons stated in Santiago, supra, at 291-292.
III. Unconstitutionality of Distraint Procedure Insofar As The Tenant Is Deprived of Property Before Notice and Hearing
The sale of property which has been subjected to distraint pursuant to 68 Pa. Stat. § 250.309 without a prior due process hearing is unconstitutional. See Santiago v. McElroy, supra.9 There can be no presumption from the signing of leases that poor tenants understandingly and knowingly waive their constitutional right to such notice and hearing through the inclusion in the lease of clauses such as paragraph 8th of the McGehean lease.
Part III of the final order in Santiago enjoined the defendants in that case from threatening to sell the tenants' property. This record supports the finding that defendants in this case often serve notices of distraint in Delaware County which contain threats of sale. See pages 235-236, infra. To the extent that the notices contain such threats, they are violative of plaintiffs' constitutional rights of due process.
IV. Alleged Violations of Fourth Amendment Rights
The named plaintiffs have not demonstrated any evidence of unreasonable searches and seizures in violation of their Fourth Amendment rights or violation of their rights under the Ninth Amendment. For this reason, they are not in a position to act as representatives of the class in making such claims. See F.R. Civ. P. 23(a)(3) and (4).
Also we have concluded that the evidence is not sufficient to sustain a finding of an unreasonable search of the witness McGehean's apartment in violation of his Fourth Amendment rights. We have considered paragraph 6th of the McGehean lease, permitting inspection of the tenant's apartment at any time.
The McGehean lease was the only Delaware County lease offered as an exhibit, and there was no showing that all Delaware County leases contain such clauses. In light of these facts, we cannot hold that this is an adhesion contract and that paragraph 6th is not a valid waiver of any Fourth Amendment claim with regard to an inspection for the purposes of making a distraint on the property of a tenant who is behind in rent. After consideration of all the facts surrounding the entry into Mr. McGehean's apartment, we cannot say the search was unreasonable.
See Wyman v. James, 400 U.S. 309, 91 S. Ct. 381, 27 L. Ed. 2d 408 (January 12, 1971).
In Conover v. Montemuro, 304 F. Supp. 259 (E.D. Pa. 1970), the court said at page 263:
"In matters of constitutional law, it is especially appropriate to proceed guardedly in order to insure that there is a full and adequate record, rather than attempt to determine significant issues in the abstract."