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SELLERS v. CONTINO

April 22, 1971

Betty SELLERS, Adella May Edmonds, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
v.
Fred J. CONTINO, Constable, Edward J. Lynch, Constable, Edward Prygon, Constable, On Behalf of Themselves and All Others Similarly Situated, Defendants, Delaware County Board of Realtors, Intervenor



The opinion of the court was delivered by: VAN DUSEN

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 *fn1" on behalf of themselves and all persons similarly situated. The complaint alleges that the defendants, *fn2" 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 *fn3" 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, *fn4" 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. *fn5"

 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. *fn7" 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 *fn8" 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).

 II. Jurisdiction

 We have subject matter jurisdiction of this suit for the reasons stated in ...


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