Landlord and Tenant Act of 1951 as well as those established by the President Judge of the Municipal Court of Philadelphia.
At the deposition of The Honorable Joseph R. Glancey, President Judge of the Municipal Court of Philadelphia, conducted on August 25, 1980 (Glancey dep.), Judge Glancey explained why the procedures attacked in this action were implemented. Following the ruling of a Three Judge Court of the Eastern District of Pennsylvania in Santiago v. McElroy, 319 F. Supp. 284 (E.D.Pa.1970), L&T Officers were no longer permitted to levy or sell personal property of tenants alleged to be delinquent in rental payments without a hearing pursuant to distress provisions. As a result, a landlord's only means of collecting delinquent rent was to send the tenant a notice to quit and then initiate eviction proceedings. Thus, the Municipal Court was deluged with an unmanageable number of such proceedings, and, in those cases which were processed, tenants were often wrongfully evicted because they were afraid to appear in court or engage an attorney and thus generally suffered default judgments. Glancey dep. pp. 24-29. Thus Judge Glancey convened a task force to devise a procedure to protect the rights of all concerned. This group, consisting of Judge Glancey, Sharon Kaplan Wallis, plaintiffs' attorney in Santiago, John Kelly, head of the landlord-tenant panel of the Community Legal Services of Philadelphia, and Jerry Fineberg, representing the interest of landlords, devised the current system.
Id. at 26, 35. Under this system, L&T Officers rather than the landlords send the notice at issue in this action to tenants at the landlord's behest. The notice is designed to impress upon tenants that the municipal court is involved in the alleged delinquency, so as to obtain the tenant's attention and prompt response, and clearly explains that unless the delinquency is paid, an eviction action will be commenced in the future. L&T Officers then fill out affidavits stating where and when they served the notices. This constitutes the requisite first step for an eviction proceeding, service of a notice to quit, thus facilitating initiation of such a proceeding should it later become necessary. Id. at 26-29. If the tenant contests the delinquency, he can either resolve the problem by contacting the L&T Officer or await filing and then contest the eviction proceeding. However, if the rent is indeed delinquent, he can make payment to an L&T Officer before institution of an eviction proceeding. Id. at 40-41. The task force considered this procedure equitable and manageable,
and, following Judge Simmons' approval,
L&T Officers were directed to send the notices by Judge Glancey. Id. at 36-48, 55. This directive was given because there was no statutory prohibition against such a procedure, and because it was the opinion of all concerned that use of the L&T Officers in this manner would serve the best interests of the tenants, the landlords and the Municipal Court. Id. at 39-40. Clearly, sending the notice and collecting delinquent rent is an official duty of defendant in his capacity as an L&T Officer.
Plaintiffs also complain that defendant charged them collection fees by listing fees as part of the amount due on the notices when collection of such fees is unauthorized. Judge Glancey stated that he specifically authorized collection of these fees in a letter to L&T Officers, and a copy of that letter is attached to the deposition transcript. The amounts of the fees involved in the case at bar are specifically authorized by the Constable Fee Bill, Pa.Stat.Ann. tit. 13 §§ 61 et seq. (Purdon 1967 and 1980 Supp.), and Judge Glancey authorized L&T Officers to collect those fees pursuant to the Constable Fee Bill. Glancey dep., p. 45. He authorized L&T Officers to collect fees from tenants where their leases provided for such payments, and otherwise from the landlords. Id. at 47. The lease of plaintiff Heredia attached to the complaint states in clause 6, entitled "additional rent", that the lessee is liable for "all sums which may become due by reason of the failure of Lessee to comply with any of the covenants of this lease ..." Clearly that clause makes plaintiff Heredia liable for the collection fees listed on the notice she received.
While the copy of plaintiff Schultze's lease attached to the complaint is incomplete, I take judicial notice of the fact that clauses of the kind quoted above are commonly included in form residential leases of the kind involved in this action. Thus defendant was clearly authorized to collect from plaintiffs the fees listed on the notices sent to plaintiffs, and was performing an official duty when he did so.
Finally, plaintiffs assert that defendant was acting improperly and outside the scope of his official duties when he sent a letter other than the notice to plaintiff Heredia, and presumably other members of the plaintiff class, after the notice failed to generate payment of delinquent rent.
Despite plaintiffs' characterization of this letter as a "dunning" letter, my examination thereof shows that it simply restates the amount of the rent due, notes the date upon which defendant has been instructed to initiate eviction proceedings, and provides a telephone number through which any questions concerning the matter can be resolved. Clearly, sending the letter conforms with the plan formulated by Judge Glancey and his task force. While Judge Glancey did not specifically authorize mailing of that particular form of letter, id. p. 51, it is clear that the procedure of which that mailing is a part is authorized. The letter merely provides the tenant a last chance before eviction proceedings are commenced, and, as discussed above, the L&T Officers' involvement in sending notices and collecting rent was specifically designed by Judge Glancey to prevent initiation of eviction proceedings. Thus I find that defendant's sending the letter to plaintiff, Heredia, and presumably to other members of the plaintiff class, constitutes performance of his official duty as an L&T Officer.
For all of these reasons, the activities which are the subject of this action were engaged in by defendant in performance of his official duties, and thus do not fall within the purview of the FDCPA. Thus plaintiffs' motion for summary judgment must be denied, and defendant's motion for summary judgment must be granted.