to be evicted from the Darby Town Houses development.
25. On December 5, 1974, Dean Nance, Esquire, an attorney in the office of Delaware County Legal Assistance Association, Inc., sent a letter to Mr. Rosner informing the latter that the termination of the Walton's lease would violate Pennsylvania law and the Fifth Amendment to the United States Constitution. Following receipt of this letter, Rosner contacted Nance by telephone on December 10, 1974. During the telephone conversation of December 10, Rosner informed Mr. Nance that Walton could continue to live in Darby Town Houses if he stopped being a "rabble-rouser."
26. Edward Rosner caused a Landlord-Tenant Complaint to be filed against James Lee Walton in retaliation for Walton's continued efforts to organize a tenants' organization for his continued complaints about the conditions in the development to the Township Commissioners, for his complaints about the conditions in the development to HUD officials, and for distribution and collection of tenant complaint forms.
Conclusions of Law
1. The Court has jurisdiction over this matter under 28 U.S.C. § 1343(3) and (4).
2. The prerequisite of an action under color of state law set forth in 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, and the requirement of state action under the Fourteenth Amendment have been met in this case.
3. As of October 3, 1974, plaintiffs were tenants of Darby Town Houses Associates pursuant to a written lease.
4. The defendants are legally bound by the terms of said lease.
5. Plaintiffs James Lee and Carolyn Walton are entitled to all protections afforded to any other tenant under the law.
6. There are no HUD regulations or guidelines which require the eviction of a resident manager following the termination of his employment.
7. The actions of James Lee Walton in associating with other tenants and petitioning for redress of grievances are actions protected by the First Amendment to the United States Constitution.
8. The defendant's eviction of James Lee Walton and Carolyn Walton was motivated by the landlord's intention to retaliate against Walton for his exercise of First Amendment protected activities.
9. The defendants, by engaging in a retaliatory eviction, have violated the plaintiffs' rights secured by the First and Fourteenth Amendments.
As outlined above, plaintiffs brought this § 1983 action to enjoin their eviction from the Darby Town Houses development. The basis of the motion for injunctive relief is the plaintiffs' claim that eviction proceedings were instituted by the defendants in retaliation for Walton's leadership role in the formation of a tenants' organization and for his complaints to the Darby Township Commissioners, the Housing Management Division of HUD, and the local media concerning the alleged substandard housing conditions existing in the development. Defendants contend that the Landlord-Tenant Complaint was filed and summary eviction proceedings instituted not in retaliation for Walton's organization activities but because the plaintiffs refused to vacate the premises to which they were no longer entitled in that Walton's employment as resident manager had been terminated as of November 23, 1974. The essence of defendants' argument is that the Waltons were permitted to occupy the premises at 1549 Noblet Avenue as an incident of Walton's employment and that once the employment relationship was terminated the plaintiffs no longer had any right to possession of the premises.
The plaintiffs do not contest the termination of Walton's employment as resident manager of the Darby Town Houses development.
Rather, plaintiffs claim that by virtue of the written lease executed by Walton and Rosner on October 30, 1974, they had an independent right of possession as a tenant separate and distinct from their right to occupancy pursuant to the oral contract of employment.
The crucial factual question presented for this Court's determination is whether Walton and his family were tenants of Darby Town Houses pursuant to the lease or whether their occupancy of the premises was a mere incident to Walton's employment as resident manager. Resolution of the above-stated factual issue is essential to the proper disposition of this case, for if plaintiffs had no right to possession of the dwelling other than that which emanated from Walton's contract of employment, the termination of the employment relationship would effectively extinguish plaintiffs' right to occupancy of the dwelling. However, if the plaintiffs had an independent right to possession as a tenant, they could not be constitutionally evicted in retaliation for the exercise of freedoms guaranteed by the First Amendment. Mattingly v. Elias, 482 F.2d 526 (3d Cir. 1973); Edwards v. Habib, 130 U.S. App. D.C. 126, 397 F.2d 687 (1968). The Court concludes that by virtue of the leasehold agreement entered into by the parties to this action the plaintiffs became tenants of Darby Town Houses with the distinct right to possession of the premises independent of the oral contract of employment.
It must be noted at the outset that the question of whether the Waltons were in fact "tenants" of the housing development is a very close one. If it were not for the execution of the lease, the Court would have no difficulty in finding that the plaintiffs occupied the premises in question as a mere incident of Walton's employment as resident manager. However, as of October 30, 1974, the date the lease was signed by Walton and an authorized representative of the owners, the plaintiffs became bound by the covenants and entitled to the rights contained therein, except for the obligation to pay rent and utilities, which obligation was assumed by Darby Town Houses Associates in return for Walton's services as resident manager of the development.
The written lease did not alter in any way Walton's oral contract of employment as resident manager. The effect of the execution of such lease was to create a right of tenancy co-extensive with but not dependent upon the oral employment contract. This conclusion is buttressed by the fact that the lease in question expressly provided for a rental term of month-to-month with the requirement of 30-day notice of termination imposed upon landlord and tenant. There is no evidence in the record that Walton was informed either at the commencement of his employment or when the lease was signed that upon termination of his employment the premises would have to be immediately vacated.
The fact that the plaintiffs were not required to pay rent and utilities does not preclude a finding that a tenancy was created under the lease. In Pennsylvania, "a tenancy may be created, and exist, when the agreement of lease is that no rent shall be demanded or paid." Mitchell v. Commonwealth of Pa., 37 Pa. 187, 193 (1860). The only substantive difference between the tenancy of the plaintiffs and that of the other tenants in the development was that plaintiffs were not required to pay rent and utilities.
Note must also be taken of the fact that the defendants did not initiate eviction proceedings upon the termination of Walton's employment. Instead, plaintiffs were notified that they had 30 days to vacate the premises in the same letter that informed them that Walton's services as resident manager would no longer be required. The Court believes that, if the owners of the development considered plaintiffs' occupancy to be an incident of Walton's employment, eviction proceedings would have been begun immediately upon termination of the employment contract.
As the plaintiffs aptly point out, further evidence of defendant's acknowledgment of the existence of a lease and the status of the plaintiffs as tenants is found in the method by which the defendants chose to obtain possession of the premises. On December 23, 1974, Rosner caused to be filed in the office of the District Justice of the Peace a Landlord-Tenant Complaint against James Lee Walton. The complaint clearly refers to Rosner as the Landlord and Walton as the Tenant.
The record also contained evidence that the resident manager of the Darby Town Houses prior to Walton was not evicted from the development when he was relieved of his duties as resident manager. Rosner testified that although he fired one Matt Hall from his job as resident manager the above individual was permitted to continue his residence in the subject housing development.
In summary, the Court concludes that the Waltons were tenants of Darby Town Houses pursuant to the written lease executed as of October 30, 1974. As such, the plaintiffs may not be evicted in retaliation for the exercise of First Amendment rights.
The law is now clear that a retaliatory eviction of a tenant under color of state law is actionable under 42 U.S.C. § 1983. Mattingly v. Elias, supra; Lavoie v. Bigwood, 457 F.2d 7 (1st Cir. 1972). The Court is satisfied that the requisite "state action" is present in that defendants are utilizing the state courts to effectuate the eviction of a tenant from a federally subsidized housing development built and operated pursuant to federal housing laws. Joy v. Daniels, 479 F.2d 1236 (4th Cir. 1973).
As far as the question of retaliatory eviction is concerned, the evidence amply demonstrated that defendants initiated the summary eviction procedures in retaliation for Walton's tenant organizing activities and complaints to local and federal authorities regarding the substandard conditions existing in the development. While plaintiffs first received notice to vacate the premises on November 12, 1974, formal summary eviction procedures were not initiated until December 23, 1974, when Rosner caused to be filed the Landlord-Tenant Complaint in the office of the District Justice of the Peace. The Court's finding that eviction proceedings were instituted in retaliation for Walton's activism is, therefore, based primarily on conduct and statements made by Rosner between the time the initial notice to vacate was sent and the filing of the Landlord-Tenant Complaint.
Dean Nance, Esquire, an attorney in the Delaware County Legal Assistance Association, testified concerning a telephone conversation he had with Rosner on December 10, 1974. On direct examination, Nance, whose testimony we credited, testified that Rosner stated during the course of the telephone conversation that Walton could continue to live in the development if he stopped being a "rabble-rouser." According to Nance, Rosner also stated in the conversation that Walton should discontinue the practice of encouraging other tenants to complain and distributing and collecting the tenant complaint forms.
As outlined in the Findings of Fact, Rosner's statements to Carolyn Walton on the dates of November 29, December 3 and 6, 1974, affirmatively show that the attempted eviction was motivated by the landlord's desire to retaliate against Walton for the exercise of rights protected by the First Amendment. The clear import of the statements and warnings made by Rosner was that the plaintiffs would be permitted to remain as tenants if Walton ceased his organizational activities and, conversely, that they would be evicted if Walton continued to complain to local and federal officials regarding conditions in the housing development. After analyzing the testimony and the exhibits introduced, the Court has no hesitancy in concluding that eviction procedures were initiated in retaliation for Walton's refusal to terminate his tenant organizing activities.
AND NOW, TO WIT, this 30th day of May, 1975, IT IS ORDERED as follows:
1. Plaintiffs' motion for a permanent injunction restraining their eviction from the premises located at 1549 Noblet Avenue in the Darby Town Houses development is granted.
2. The plaintiffs are hereafter directed to fully comply with each and every provision set forth in the leasehold agreement signed by the parties to this action, including the payment of all rentals due and owing and the posting of a security deposit in the sum normally and ordinarily required by the owners of the Darby Town Houses.
LOUIS C. BECHTLE, J.