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CHICARELLI v. PLYMOUTH GARDEN APTS.

November 24, 1982

MARGARET A. CHICARELLI, GREGORY CHICARELLI, a minor, by Margaret A. Chicarelli, his guardian and ISABEL TALLON
v.
PLYMOUTH GARDEN APARTMENTS, ET AL.



The opinion of the court was delivered by: BRODERICK

 BRODERICK J.

 This case is before the Court on plaintiffs' motion for summary judgment on the issue of liability only and on defendants' motion to dismiss or, in the alternative, for summary judgment. Defendants are the 34 investors in Plymouth Gardens, an unincorporated association, all of whom reside in states other than Pennsylvania. Plaintiffs Margaret Chicarelli, her son Gregory Chicarelli, and her mother Isabel Tallon, are residents of Pennsylvania and former tenants of Plymouth Garden Apartments, an apartment complex owned by defendants. Plaintiffs claim they were deprived of liberty and property interests secured by the Constitution in violation of 42 U.S.C. §§ 1983 and 1985 as a result of eviction proceedings initiated by the defendants in March, 1980. Plaintiffs also advance state law claims of malicious use of civil process, abuse of process, false arrest and imprisonment, and defamation. Since, in considering defendant's motion to dismiss, or in the alternative for summary judgment, we have considered matters outside the pleadings, this motion has been treated as a motion for summary judgment under Rule 56. Fed.R.Civ.P. 12(c). Plaintiffs' motion has, of course, also been so considered. For the reasons stated below, plaintiffs' motion for summary judgment is denied and summary judgment is granted to defendants on all of plaintiffs' claims. Consequently, the order of this court listing this case for trial and for a pretrial conference is vacated.

 On the basis of facts admitted in the pleadings and uncontradicted by affidavits and depositions, the uncontested facts in this action can be summarized as follows:

 The lease between plaintiff Margaret Chicarelli and Plymouth Gardens signed by Ms. Chicarelli contained provisions allowing Plymouth Gardens as lessor to confess judgment against Ms. Chicarelli as lessee for possession of the leased premises in the event a condition of the lease was broken during its term. One such express condition was that the lessee and/or the occupants of the leased premises not conduct themselves in an improper or objectionable manner. Ms. Chicarelli also waived any notice requirements other than the five-day period provided for in the lease.

 On February 25, 1980, plaintiffs received a notice to vacate their apartment within five days because, according to the notice, numerous vandalism complaints against Gregory Chicarelli had been received by the management of Plymouth Garden Apartments. Plaintiff contacted an attorney the next day, who wrote to the property manager of Plymouth Garden Apartments, Stan Cowan, requesting specific information concerning these complaints.

 On March 11, 1980, Plymouth Gardens, through its attorney Douglas Kissel, filed a complaint for confession of judgment for possession of the premises. The complaint purported to be filed pursuant to Pa.R.C.P. § 2970, which sets out the procedure for actions to enter a judgment in ejectment for possession of real property by confession pursuant to an instrument authorizing such confession. The complaint alleged default in the terms of the lease agreement in that "defendant's children (2 boys) were constantly damaging doors and hinge torn off Clark Bldg. door, and many other vandalism complaints." Judgment purported to be confessed for Ms. Chicarelli by Mr. Kissel.

 Judgment was entered in favor of Plymouth Gardens the same day in the Court of Common Pleas of Montgomery County, Pennsylvania, and a writ of possession issued. Notice thereof was mailed by the Prothonotary in an envelope postmarked March 5, 1979, which envelope had been provided the Prothonotary by Mr. Kissel. The complaint, the affidavit of mailing, the praecipe for the writ of possession, and other affidavits filed with the complaint were signed by Mr. Kissel's employees, and the affidavit of mailing carried a notarization dated March 5, 1980, although mailing was actually made on March 11, 1980.

 On March 12th a sheriff's deputy served and returned the writ of possession by leaving it on the kitchen table in plaintiffs' apartment. The deputy also changed a lock on the front door of the apartment, but did not lock it. Another lock, within the knob of the front door, was not changed. Plaintiffs had access to the apartment and a means to lock it. On March 13, a Plymouth Township police officer, along with several employees of Plymouth Gardens, visited the apartment while plaintiff Isabel Tallon was at home and the police officer inquired as to why plaintiffs had not vacated the premises.

 On March 14, a rule to show cause why the confessed judgment should not be stricken was entered, based on plaintiff's allegations that the judgment was defective on its face. Plaintiffs' petitioned in the alternative for a reopening of the judgment based on a denial of the allegations as to default made in the complaint. On March 26, a letter was sent by Mr. Kissel to plaintiffs' attorney stating that defendants wished to initiate contempt of court proceedings against the plaintiffs for reentering the apartment in violation of the judgment. On March 27, the confessed judgment was stricken. On April 4, this action was filed.

 Plaintiffs' lease term expired on June 30, 1980, plaintiffs having been given notice on April 10, 1980 that the lease would not be renewed. On July 7, 1980 defendants filed a landlord and tenant complaint for possession of the premises, which was withdrawn. Plaintiffs vacated the premises on or about August 31, 1980.

 In deciding these cross-motions for summary judgment, we must determine whether any disputed issues of material fact exist which would preclude the entry of summary judgment. As to issues of fact, all reasonable inferences must be drawn in favor of the party against whom summary judgment is sought. Whenever the moving party relies upon an affidavit or depositions, the opposing party must come forward with affidavits, depositions, or answers to interrogatories sufficient to contradict the movant's showing. Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-61, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Fed.R.Civ.P. 56(e).

 Plaintiffs' Federal Claims

 Plaintiffs' assertion that defendants' actions constitute a violation of 42 U.S.C. § 1985, which forbids conspiracies entered into "for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws . . .", need not detain us long. Even had plaintiffs made a sufficient allegation of a conspiracy to deprive them of their civil rights, which, as discussed below, we believe they have not, plaintiffs have not alleged, nor are there any facts in this case which would show, the "racial, or perhaps otherwise class-based, invidiously discriminatory animus" necessary to sustain a § 1985 cause of action under the Supreme Court's holding in Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). Moreover, a class of residential tenants, or of those who have had writs of possession issued against them, is not a class protected by § 1985. Banghart v. Sun Oil of Pennsylvania, 542 F. Supp. 451 (E.D. Pa. 1982); See Carchman v. Korman Corporation, 594 F.2d 354 (3d Cir. 1979). Summary judgment must therefore be granted for the defendants on plaintiffs' § 1985 claim.

 Plaintiffs allege three bases for their claim that defendants deprived them of liberty or property without due process of law in violation of 42 U.S.C. § 1983. The first, that defendants' agents together with a police officer unlawfully detained plaintiff Isabel Tallon, we reject based on our determination, discussed below, that no such unlawful detention has been shown. Plaintiffs also allege that the confession of judgment procedure used by the defendants violated the Constitutional requirements for such procedures set forth in Swarb v. Lennox, 405 U.S. 191, 92 S. Ct. 767, 31 L. Ed. 2d 138 (1972) and that, acting under color of law, defendants caused a procedurally and substantively defective confession of judgment to be entered. For the reasons below, summary judgment must be granted defendants on these claims as well.

 To show a violation of 42 U.S.C. § 1983, plaintiffs must show that they were deprived by conduct "fairly attributable to the state" of a right secured by the Constitution and laws of the United States. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 102 S. Ct. 2744, 2754, 73 L. Ed. 2d 482 (1982). In the present case, although defendants' actions did not cause substantial physical interference with plaintiffs' use of their property, for the purpose of deciding these summary judgment motions the Court will assume that the plaintiffs were deprived of a property interest.

 Entry of judgment in ejectment and issuance of a writ of possession entitles the party obtaining judgment to possession of the premises described by the writ. The occupants of the premises might, therefore, become trespassers, not tenants. Defendants therefore might be held to have deprived, and may actually have deprived, plaintiffs of their right to lawful possession of the premises. Moreover, through the actions of their agents in visiting the premises with a police officer and through their expression of intent to file contempt proceedings against the plaintiffs, defendants indicated to plaintiffs that they considered plaintiffs' occupation of the premises following the issuance of the writ to be unlawful. Under these circumstances, defendants' actions will be assumed to have interfered with plaintiffs' use and enjoyment of the premises sufficiently to constitute deprivation of a property right. See Simkins Industries v. Fuld & Co., 392 F. Supp. 126, 129 (E.D. Pa. 1975) (service of writ of attachment on garnishee held sufficient deprivation of property to ground malicious prosecution action); Chrysler Corp. v. Fedders Corp., 670 F.2d 1316, 1328 (3d Cir. 1982) (filing of a lis pendens constitutes some deprivation of property even though property owner does not suffer at all in possession or use of property).

 Deprivation of a property right does not constitute a § 1983 violation, however, unless the deprivation violates a federal right and is fairly attributable to the state. Lugar v. Edmonson Oil, 102 S. Ct. at 2754, set out a two-part approach to the question of "fair attribution":

 
First, the deprivation must be caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible. . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state.

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