Appeal from the Order of the Court of Common Pleas of Erie County in case of Michael Manna and Florence Manna v. City of Erie, Mayor's Office of Community Affairs, Department of Public Safety, Division of Housing and Rent Withholding; and Gertrude Henry, No. 1928 A 1974.
J. Steven Xanthopoulos, for appellant.
Robert D. Hain, Assistant City Solicitor, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.
[ 27 Pa. Commw. Page 397]
This appeal arises under the "Local Agency Law," Act of December 2, 1968, P.L. 1133, as amended, 53 P.S. § 11301, and challenges the constitutionality of the City of Erie Rent Withholding Ordinance, Erie, Pa., Code § 1926.01 (1968). At issue is whether due process requires that a hearing be held prior to the director of the Erie Bureau of Housing certifying a dwelling unfit for human habitation and suspending the right of the appellee-landlord to collect his rent. The lower court held that a hearing is necessary. We agree.
[ 27 Pa. Commw. Page 398]
The City of Erie Rent Withholding Ordinance is based on and virtually identical to its enabling statute, the Act of January 24, 1966, P.L. (1965) 1534, as amended, 35 P.S. § 1700-1.*fn1 The ordinance reads in pertinent part:
§ 1926.03 Termination of Rent Payment for Unfit Dwelling.
When the director of the Bureau of Housing certifies a dwelling unfit for human habitation, the duty of any tenant of such dwelling to pay, and the right of the landlord to collect rent, shall be suspended without affecting any other terms or conditions of the landlord-tenant relationship, until the tenancy is terminated for any reason other than nonpayment of rent.
Upon discovering violations, housing inspectors, pursuant to the ordinance, report to the director of the Bureau of Housing. The director, applying defined standards, determines whether a building is unfit for human habitation. Violations that are the responsibility of the tenant are not to enter into the determination.*fn2 There is no opportunity for a landlord to raise the issue of tenant responsibility prior to the classification of his property as uninhabitable although the
[ 27 Pa. Commw. Page 399]
unfitness determination may be appealed to the Erie Board of Code Appeals. Upon such a determination the duty of the tenant to pay and the right of the landlord to collect rent is suspended. If the tenant continues to occupy the dwelling the withheld rent must be paid into an escrow account, payable to the landlord if the dwelling is certified as fit for human habitation within six months of the determination of unfitness. At the end of the six months, if the dwelling has not been certified as fit for human habitation, monies held in escrow are ...