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Michael Marcavage v. Borough of Lansdowne

October 19, 2011


The opinion of the court was delivered by: Anita B. Brody, J.


Plaintiff Michael Marcavage owns several rental properties in the Borough of Lansdowne ("Lansdowne" or the "Borough"). Defendant Lansdowne Code Enforcement Officer Michael J. Jozwiak posted notices on Marcavage's properties informing Marcavage that he was not in compliance with a Lansdowne ordinance that required Marcavage to obtain rental licenses for his properties. Marcavage has brought suit against Defendants Borough of Lansdowne and Jozwiak claiming that Lansdowne's original rental ordinance and amended rental ordinance are unconstitutional, and seeking relief under 42 U.S.C. § 1983. The parties have filed cross-motions for summary judgment. Defendants move for summary judgment against Marcavage's Amended Complaint on the basis that the rental ordinances are not unconstitutional, and that Jozwiak is entitled to qualified immunity. Marcavage moves for partial summary judgment in favor of his Amended Complaint on the basis that the rental ordinance is facially unconstitutional. For the reasons that follow, I will grant Defendants' motion for summary judgment, and will deny Marcavage's cross-motion for partial summary judgment.


The facts of this case are essentially undisputed. On May 7, 2003, Lansdowne adopted Ordinance 1188, which required anyone owning rental properties in Lansdowne to obtain an annual rental license. Specifically, Section 265-4 provided that:

It shall be unlawful for the owner of any premises or any agent acting for such an owner to operate, rent or lease any premises or any part thereof, whether granted or rented for profit or nonprofit, or to represent to the general public that a premises or any part thereof is for rent, lease or occupancy without first acquiring [a rental license] issued by the Code Department in the name of the owner, local agent or operator and for the specific rental unit.

Lansdowne Code § 265-4 (2003). In order to obtain a license, a property owner had to, inter alia, arrange for a rental license inspection by Lansdowne's Code Enforcement Division. Id. The scope of the inspection included the exterior and interior areas of the rental unit. Id. § 265-7(D). Furthermore, in making such an inspection, a Lansdowne Code Enforcement Officer was to inspect any owner-occupied portion of a rental property (i.e., landlord-occupied unit within a larger apartment building of tenant-occupied units), including its interior. Id. §§ 265-4(D), 265-7(E).

An applicant for a rental license was responsible for "contact[ing] the Code Department [to] schedule all inspections" and making such inspection requests "no less than 48 hours prior to the time of inspection." Id. § 265-7(A)-(B). If, during an inspection, a Code Enforcement Officer found a code violation, Lansdowne would issue a notice of violation. Id. § 265-5. Any rental unit found to have code violations was to "be brought into compliance . . . within a time frame to be determined at the discretion of the Code Officer." Id. Additionally, "[i]f any building . . . [was] proposed to be . . . maintained or used in violation [of the Ordinance], the Code Enforcement Officer [could], in addition to other remedies, institute in the name of the Borough any appropriate action or proceedings to prevent, restrain, correct or abate such building . . . or to prevent . . . any act, conduct, business or use constituting such violation." Id. § 265-10(C). Upon receiving a notice of violation or decision of the Code Enforcement Officer, a property owner could appeal the decision or petition Lansdowne for a variance from the "strict letter" of the Lansdowne Code. Id. § 265-12. Anyone who violated or failed to comply with Ordinance 1188 would be subject to a fine or imprisonment, or both. Id. § 265-14.

Marcavage owns a two-unit apartment house at 62 East Stewart Avenue ("Stewart Avenue Property") in Lansdowne. Marcavage maintains his principal residence in one unit of the Stewart Avenue Property, and the other unit is leased to a tenant. The Stewart Avenue Property is a two-story building with the leased unit on the second floor above Marcavage's residence. Each unit has a separate entrance, and there are no interior common areas. Marcavage owns another two-unit apartment house at 34 East Stratford Avenue ("Stratford Avenue Property") in Lansdowne. Each unit at the Stratford Avenue Property is leased to a tenant. The units of the Stratford Avenue Property have separate entrances, but share a common exterior door.

Marcavage has owned these properties since the enactment of Ordinance 1188. Marcavage received yearly notices from the Borough that his properties needed a rental license inspection. Defs.' Mot. Summ. J. Ex. D, Marcavage Dep. 50:23-52:24. Over this time period, however, Marcavage never requested an inspection. Instead, he contacted the Borough on multiple occasions, by phone and by email, to express his objections with the rental inspection process-particularly the lack of a warrant requirement for the inspection. Id. at 50:3-52:18, 60:11-61:4. In one particular email, on August 15, 2008, Marcavage "urge[d]" Jozwiak "to cease and desist from pursuing legal action against landlords at this point for non-compliance to [Ordinance 1188] that is clearly unconstitutional." Am. Compl. Ex. D.

On September 30, 2009, identical notices (the "Notices") were posted at both the Stewart and Stratford Avenue Properties. One was posted on the common exterior door for the Stratford Avenue Property, and one was posted on the door of Marcavage's residence at the Stewart Avenue Property. Each notice stated the following:


This Structure has been Declared an

Unlawful Rental Property for failure to obtain the required rental license.

It is Unlawful for Landlord to collect any Rent, Use, or Occupy This Building After 9/30/09 or until a rental license has been obtained from the Borough of Lansdowne.

Any Unauthorized Person Removing This Sign


Pl.'s Counter-Statement of Undisputed Facts ¶ 16. The Notices included Jozwiak's name and title. Id. The Notices did not inform Marcavage of how he might appeal or contest the Borough's decision.

Marcavage alleges that as a result of the Notice on the Stewart Avenue Property, he was forced from his home and spent the nights of October 1, 2009 and October 2, 2009 in a hotel, and the nights of October 3, 2009 and October 4, 2009 in the homes of acquaintances. Pl.'s Mot. TRO & Prelim. Inj., Marcavage Decl. ¶¶ 22, 23.

On October 5, 2009, Marcavage filed the instant suit, along with a motion for a temporary restraining order seeking to enjoin the Defendants from enforcing the Notices or commencing any process against him for residing at his home. ECF Nos. 1, 3. In a hearing on October 5, 2009, the Defendants agreed to refrain from taking any further action against Marcavage until the resolution of this case. ECF No. 5. As a result, Marcavage returned to his house on October 5, 2009. Defs.' Mot. Summ. J. Ex. D, Marcavage Dep. 87:10-13.

On April 21, 2010, Lansdowne passed Ordinance 1251 that amended Ordinance 1188.*fn2

Ordinance 1251 added a subsection clarifying certain rights and remedies of owners and occupants of property subject to the rental inspection requirement. Id. § 265-10(E). Specifically, subsection 10(E) provided for the following:

The owner, occupant, tenant or person in charge of any property or rental unit possesses the right to deny entry to any unit or property by a Code Enforcement Officer for purposes of compliance with this chapter. However, nothing in this chapter shall prohibit a Code Enforcement Officer from asking permission from a owner, occupant, tenant or person in charge of property for permission to inspect such property or rental unit for compliance with this chapter and all other applicable laws, regulations and codes, to seek a search warrant based on probable cause or to enter such property or rental unit in the case of emergency circumstances requiring expeditious action.

Id. After Ordinance 1251 was passed, Marcavage filed an Amended Complaint, seeking the following relief: (1) declaratory relief, declaring Ordinance 1251 unconstitutional, both facially and as applied; (2)injunctive relief under 42 U.S.C. § 1983 in the form of a permanent injunction against the Defendants from enforcing Ordinance 1251; and (3)damages under § 1983 against the Defendants resulting from their allegedly dispossessing Marcavage from his residence.*fn3


Summary judgment will be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). There is a "genuine" issue of material fact if the evidence would permit a reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The "mere existence of a scintilla of evidence" is insufficient. Id. at 252.

The moving party must make an initial showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must then "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; see also Fed. R. Civ. P. 56(c)(1). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In determining ...

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