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October 24, 1972

Susan GROSS, on behalf of herself and all others similarly situated
J. Wilson FOX, Deputy Constable et al.

Van Dusen, Circuit Judge, Joseph S. Lord, III, Chief District Judge, and Fullam, District Judge.

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

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, 68 P.S. § 250.302 et seq. These provisions of state law provide a procedure known as "distraint" or "distress for rent" whereby a landlord or his duly authorized agent is allowed to take possession or control of property (with certain exceptions) found upon leased premises to recover rent past due, without the requirement of a prior judicial determination of the validity of the landlord's claim for rent. This civil action is authorized by 42 U.S.C. § 1983, and this court has jurisdiction pursuant to 28 U.S.C. § 1343(3), 2201, 2281.

 Our opinion on June 30, 1972 held that if 68 P.S. § 250.302 et seq., particularly 68 P.S. § 250.302, should be construed to authorize the acts of defendant Fox in entering plaintiff's premises without her knowing and understanding consent, then they would be unconstitutional as applied because they would be in violation of the Fourth Amendment.

 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 68 P.S. § 250.302 et seq. are facially unconstitutional in light of the Fourteenth Amendment's due process clause.

 Under 68 P.S. § 250.309, the tenant's property which is distrained on by the landlord can eventually be sold to recover rent "reserved and due." This court, in Santiago v. McElroy, 319 F. Supp. 284 (E.D.Pa.1970), held that this sale provision violated the due process clause of the United States Constitution because there was no provision for a hearing before the tenant's property was sold. We declined to rule, however, on whether the distraint and steps taken before sale authorized under the state law violated the Fourteenth Amendment rights of tenants because the plaintiffs in that case did not show they had been harmed in any manner by these procedures. In the instant case, however, there are no standing problems as it has been stipulated that there was an entry into plaintiff's apartment without her knowledge by defendant landlord's agent, defendant Fox, who removed certain of plaintiff's belongings from the apartment, and left a notice of distraint on the outside of her door.

 68 P.S. § 250.302 provides that "[personal] property located upon premises occupied by a tenant shall, unless exempted by * * * this act, be subject to distress for any rent reserved and due. * * *" Rent is "reserved and due", and thus the landlord may distrain, as soon as the tenant is one day late on a rent payment. Baker v. Spector, 90 Pa.Super. 163 (1927). Even if the landlord has customarily accepted rent payments at some time after the due date in the lease, and has never made demand for timely payment, he may make distraint if he does not receive the rent on the date due as designated in the lease. Bisk Candy Co. v. Stout, 289 Pa. 369, 137 A. 612 (1927). All goods found on the tenant's premises, including those belonging to third parties having no connection whatsoever with the lease, are subject to distraint, unless exempt by statute. *fn1" Firestone T. & R. Co. v. Dutton, 205 Pa.Super. 4, 205 A.2d 656 (1964); Derbyshire Bros. v. McManamy, 101 Pa.Super. 514 (1931); Potts Dept. Store v. Lutz & Sweigart, 98 Pa.Super. 545 (1930).

 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 distrained goods may not be removed from the premises *fn2" 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, ...

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