                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-6-1996

Cinea v. Certo
Precedential or Non-Precedential:

Docket 95-3168




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                           ----------

                          No. 95-3168

                           ----------

          Barbara Cinea; Sandra Bernardi; Ken Bernardi;
         Judith Wimbs, on their own behalf and on behalf
         of all others similarly situated; Betty Bendel

                               v.

            Pennsylvania State Constable Daniel Certo;
            Pennsylvania State Constable Fred Taiber;
           Bernard Regan, Manager of Constable Services
         for Allegheny County, individually and in their
                official capacities; Robert A. Cox;
               Nancy Sobolovitch; Patrick Siegworth

                                    Barbara Cinea, Sandra and Ken
                                    Bernardi and Judith Wimbs, on
                                    their own behalf and on behalf
                                    of all others similarly
                                    situated,
                                                   Appellants

                           ----------

         On Appeal from the United States District Court
            for the Western District of Pennsylvania
                     (D.C. Civil No. 92-966)

                           ----------

                    Argued: December 7, 1995

                   BEFORE: STAPLETON, SAROKIN
                   and ROSENN, Circuit Judges

                           ----------

                  (Opinion filed    May 6, l996)

Janice Haagensen (ARGUED)
Evalynn Welling, Esq.
Neighborhood Legal Services Ass'n
928 Penn Avenue
Pittsburgh, PA 15222-3799


                               1
                          Attorneys for Appellants

Howard M. Holmes, Esq. (ARGUED)
Supreme Court of Pennsylvania
Administrative Office of
     Pennsylvania Courts
1515 Market Street
Suite 1414
Philadelphia, PA 19102

                          Attorney for Appellee,
                          Nancy Sobolevitch

                            ----------

                       OPINION OF THE COURT

                            ----------

SAROKIN, Circuit Judge:


     Plaintiffs, a class of Allegheny County judgment debtors,

filed suit against Pennsylvania constables and the Court

Administrator of Pennsylvania, alleging that plaintiffs were

deprived of their property without due process of law by

operation of Pennsylvania's rules governing the post-judgment

levy and execution against property in proceedings before

district justices.   Following a bench trial, the district court

entered judgment for the defendants, and plaintiffs appealed. For

the reasons that follow, we will affirm.

                                  I.

     Prior to the commencement of this action, each of the named

plaintiffs was embroiled in a separate landlord-tenant proceeding

before a district justice in Allegheny County.     As a result of

these proceedings, they were evicted from their homes, had money

judgments entered against them, and had their personal property


                                  2
levied upon in satisfaction of that judgment.      Their individual

stories are as follows.

                          A. Barbara Cinea

     Barbara Cinea, a welfare recipient who lived with her eight-

year-old son in Pittsburgh, fell behind on her rent payments when

her welfare benefits were temporarily suspended.      In a proceeding

before a district justice, Cinea's landlord, Robert Cox, obtained

a judgment against her for rent due and for possession of the

property she occupied.

     On March 3, 1992, in accordance with that judgment, Cinea

was served with an eviction notice.   Although the eviction was

not to take effect until March 5, Cinea and her son fled

hurriedly on March 4 in response to threats by the landlord,

leaving behind all of their belongings.      The following day, a

constable posted a notice on the door stating that the locks had

been changed and instructing Cinea to make arrangements with her

landlord within thirty days of the date of the notice in order to

retrieve her possessions.

     On March 16, 1992, before the thirty-day period had expired,

Constable Daniel Certo, a defendant in this action, entered the

house and levied on Cinea's property pursuant to a writ of

execution issued by a district justice.      The levy, which was

intended to satisfy the money judgment in the landlord-tenant

action, covered "ANY AND ALL PROPERTY BELONGING TO DEFENDANT AT

ADDRESS."   Although Constable Certo could have taken the levied

property into his physical possession, he left it, as is

customary, in Cinea's former residence subject to the terms of


                                 3
the levy.   He then served Cinea at her mother's house with notice

of the levy and execution.   The Notice of Levy stated: "YOU WILL

THEREFORE NOT REMOVE THIS PROPERTY FROM THE PREMISES WITHOUT AN

ORDER FROM ME."

     Because certain pieces of the furniture that was levied upon

belonged to Cinea's mother, her mother filed a property claim to

recover them.   Following a hearing, a district justice ordered

the release of Cinea's mother's property on March 19.    Pursuant

to Pennsylvania rules for levy and execution proceedings, the

landlord filed a timely objection in the state court of common

pleas.   Meanwhile, for reasons that are unclear from the record,

Cinea's mother did not receive her property.    The court scheduled

the hearing on the landlord's appeal for September 15, 1992--

nearly six months after the district justice's order in Cinea's

mother's favor.

     Cinea herself also filed an objection to the levy, arguing

that the value of the property seized far exceeded the amount of

the underlying money judgment ($795) and that the levy was

improper in that it included personal, unsalable items.    What

happened next is not clear from the record.    It appears, however,

that Cinea prevailed at least in part, and that the district

justice ordered the release of much of the property that had been

subject to the levy.   Letter Order of District Justice Connery

(March 30, 1992).0   Ultimately, after filing the instant action,

0
Cinea testified before the district court that the district
justice "didn't do anything" with respect to Cinea's objection,
and that Cinea appealed. Tr. 126. Cinea argues on appeal,
however, that the district justice ruled in her favor.


                                 4
Cinea settled with her landlord and recovered all of her

property.    The landlord released Cinea's mother's property upon

settlement as well.

                      B. Sandra and Ken Bernardi

     Sandra and Ken Bernardi were evicted from their apartment in

January of 1992.   Before they had actually moved out, Constable

Fred Taiber, a defendant in this action, levied upon certain of

their property in satisfaction of a $606 money judgment entered

against them in the eviction action.    The Notice of Levy, like

the one given to Cinea, ordered the Bernardis not to remove any

levied property from the premises without permission of the

constable.   Constable Taiber told the Bernardis that they would

be imprisoned if they violated this order.

     Although the Bernardis' daughter succeeded in recovering

property belonging to her that had been levied upon in

satisfaction of her parents' debt, the Bernardis themselves filed

no objection to the levy.    They moved out pursuant to their

eviction, leaving the levied property behind.      The property was

subsequently sold by the constable.

                            C. Judith Wimbs




Appellants' Brief, p.8. The district court's Findings of Fact
does not clarify this point, because it states merely that the
district justice held a hearing on Cinea's claim and one on her
mother's claim, and subsequently ordered the release of "some of
the property." App. 36. Our review of the district justice's
property release order was similarly unavailing; that document
simply releases "all" property except certain enumerated items,
without indicating whether the property released belonged to
Cinea or to her mother.


                                  5
     On November 21, 1991, a district justice entered an order of

eviction and a $1,107 money judgment against Judith Wimbs.     She

subsequently moved to a new address, where Constable Certo levied

upon enumerated items of her personal property in satisfaction of

the money judgment, and "any and all personal property of the

defendant at the address."   Like the other plaintiffs in this

action, Wimbs was served with a Notice of Levy that forbade her

from removing any levied property without an order from the

constable; however, unlike the Bernardis and Cinea, she retained

possession of the property up until the time of sale.

     Wimbs neither objected to the levy nor attempted to contact

her landlord regarding satisfaction of the judgment.

Consequently, the levied property was sold to the landlord.0

                                II.

     Plaintiffs filed suit on behalf of themselves and all

persons living in Allegheny County whose property has been or

will be subject to levy and execution before the district

justices of Allegheny County, alleging that the levy and

execution procedures set forth in the Pennsylvania Rules of Civil

Procedure Governing Actions and Proceedings Before District

Justices (hereinafter "District Justice Rules") are

unconstitutional.0   The bases of their claims are that the levy

procedures deprive judgment debtors of the use of their property

0
 The final plaintiff in this matter, Betty Bendel, did not join
in the appeal and thus is not discussed in this opinion.
0
 Plaintiffs also asserted state-law claims for wrongful
conversion and abuse of process against the constables, but they
do not challenge the district court's disposition of these claims
on appeal.

                                 6
prior to sale in violation of the due process clauses of the

Fifth and Fourteenth Amendments and work an unlawful seizure in

violation of the Fourth Amendment.   Plaintiffs prayed for

declaratory judgment, injunctive relief, and compensatory and

punitive damages.

     Plaintiffs initially named six individual defendants:

Pennsylvania State Constables Daniel Certo, Fred Taiber, and

Patrick Siegworth; Bernard Regan, Manager of Constable Services

of Allegheny County; Robert Cox, plaintiff Cinea's former

landlord; and Nancy Sobolovitch, Court Administrator of

Pennsylvania.   Upon plaintiffs' motion, however, defendants Cox

and Siegworth were dismissed from the case prior to trial.

     The case was tried without a jury on February 21 and 22,

1995.   The district court entered a directed verdict in favor of

defendant Regan, from which order plaintiffs do not appeal.     On

February 24, the district court entered judgment in favor of all

remaining defendants.

     On appeal, plaintiffs challenge only the district court's

rulings on the constitutional claims.0   They raise the following

three issues for our review: (1) whether judgment debtors whose

property is held outside their possession pending appeal of a

district justice's ruling are afforded a constitutionally

adequate post-deprivation remedy; (2) whether the deprivations of

0
Defendants Certo and Taiber did not enter appearances with
respect to this appeal, apparently having settled. Thus, the
State Court Administrator, who is generally responsible for "the
prompt and proper disposition of the business of all courts and
justices of the peace," Penn. Const. art. IV, § 10(a), remains
the sole appellee.

                                7
property that the plaintiffs suffered during the levy appeals

process resulted from the levies or from their evictions; and (3)

whether the levies at issue violated the Fourth Amendment

protection against unlawful seizures insofar as the official levy

form lent apparent authority to the landlords' unlawful retention

of the property of their evicted tenants.   Because we believe the

second issue is a subpart of the first, we will address issues

(1) and (2) together.

                               III.

     The district court had jurisdiction pursuant to 28 U.S.C.

§1343.   As this is an appeal from a final order of a district

court, we have appellate jurisdiction pursuant to 28 U.S.C.

§1291.

                               IV.

     We review the district court's findings of fact under a

clearly erroneous standard and its findings of law de novo.

Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 765-66

(3d Cir. 1994).

                                V.

     We turn first to the question of whether plaintiffs were

afforded a post-deprivation remedy adequate to satisfy the due

process requirements of the Fifth and Fourteenth Amendments.

     "The fundamental requirement of due process is the

opportunity to be heard 'at a meaningful time and in a meaningful

manner.'" Mathews v. Eldridge, 424 U.S. 319, 333 (1976)(citation

omitted). However, "'"[d]ue process," unlike some legal rules, is

not a technical conception with a fixed content unrelated to


                                8
time, place and circumstances.'"     Id. (citation omitted).    On the

contrary, it is "'flexible and calls for such procedural

protections as the particular situation demands.'"    Id. (citation

omitted).    Under the circumstances presented here, we must

determine whether the procedures set forth in the District

Justice Rules "represent[] a fair accommodation of the respective

interests of creditor and debtor."    Finberg v. Sullivan, 634 F.2d

50, 58 (3d Cir. 1980).

     It is axiomatic that the degree of procedural protection

required by the Due Process Clause is proportional to the extent

of the deprivation.    In this case, the extent of the deprivation

is in dispute.    Plaintiffs argue that they were deprived of their

property during the period between levy and execution by the

Notice of Levy and the actions of the constables who served those

notices, because the Notice and actions indicated to plaintiffs

that removal of their property from the site of levying would

expose them to the risk of criminal sanctions.     Defendants

counter that the levies deprived plaintiffs only of the right to

alienate their property, and that it was the evictions rather

than the levies that deprived plaintiffs of the possession and

use of their property.

     It may well be the case that plaintiffs, through some

combination of the Notice of Levy forms and the statements of the

constables, were under the impression that they could not remove

their property from the quarters from which they had been

evicted.    However, neither the text of the forms nor the

underlying law supports that assumption.


                                 9
     The Notice of Levy forms served on plaintiffs warned them

that they would face criminal penalties if they moved their

levied property without the permission of the levying constable.

The forms did not absolutely forbid plaintiffs to remove the

property from their landlords' premises, and no plaintiff makes

such an allegation.   Nor is there any evidence that any plaintiff

sought the constable's permission to move her levied possessions

and was refused.0   Judith Wimbs, the Bernardis, and Betty Bendel

apparently did not make any attempt to move their property. Cinea

testified that she asked Constable Certo to release her property

to her at one point, but that he told her that her former

landlord was the one with control over her possessions and that

she would have to take it up with him.   Cinea does not dispute

the truth of this assertion, nor could she do so; her former

landlord had changed the locks on the building, and the constable

had neither the authority to enter without the landlord's

permission nor a means of entering without the landlord's key.

     Moreover, under Pennsylvania law, a judgment debtor is

subject to criminal sanctions only if she
     destroys, removes, conceals, encumbers, transfers or
     otherwise deals with property subject to a security
     interest or after levy has been made thereon with
     intent to hinder enforcement of such interest.


18 Pa.C.S.A. § 4110 (emphasis added).    A judgment debtor who

retains possession of levied property may move her property post-


0
We question the relevance of evidence of the constables'
behavior to the issue of whether the forms and procedures violate
the due process clause, and our discussion of such evidence by no
means reflects a determination that it is relevant.


                                 10
levy as long as she does not do so with intent to conceal her

movements or defeat execution and informs the constable of her

new location.   Commonwealth v. Fisher, 14 Pa. D. & C. 603 (1930).

     Plaintiffs argue that the fact that it may take three to

four months for the court of common pleas to hear an appeal from

a district justice's decision regarding the propriety of a levy

constitutes a violation of due process.   We disagree.   First,

while a constable theoretically has the legal right to take

control and possession of levied property, the constable in each

of these cases left the levied property on the premises.     Thus,

if not for the eviction, each plaintiff would have retained the

use and possession of her property pending appeal from the levy.

Although a levy still works a deprivation of property even if the

judgment debtor retains possession, Montgomery v. Green, 1989 WL

121868, *4 (E.D. Pa. 1989)(not reported in F.Supp.), the fact

that the judgment debtors retain possession and use of their

property renders the deprivation slight and reduces the amount of

process due.

     Of course, a constable has the right to remove the levied

property from the possession of the judgment debtor at the time

of the imposition of the levy.   As none of the named plaintiffs

suffered this type of deprivation, however, they do not have

standing to challenge the rules on this ground.   Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)(holding that

to meet the "irreducible constitutional minimum" of standing, a

plaintiff must establish, inter alia, that she has personally




                                 11
suffered an "'injury in fact'" that will be redressed by a

favorable decision).

     Under the circumstances of this case, there is no question

that the procedures provided satisfy the requirement of the due

process clause.   The existing rules provide fairly extensive

post-levy procedural protections for judgment debtors.     The

levying constable must serve on the judgment debtor a notice

which explains the nature of the levy and informs the debtor of

her rights and liabilities.    R.409.   This notice informs the

debtor that certain types of property are exempt from levy0 and

that she is entitled to a $300 exemption, and explains the

procedures for claiming the exemption, appealing from the levy,

and obtaining free legal assistance if necessary.    Id.   If the

debtor fails to claim the monetary exemption, the executing

officer must set aside sufficient property to constitute a $300

exemption in kind or, if in-kind division is not possible, $300

in proceeds from the sale.    R.408.

     The executing officer must give notice of the sale by

mailing handbills to the judgment debtor and to the plaintiff at

0
The notice states as follows:
     Your real estate cannot be taken on this execution, nor
     can perishable personal property or personal property
     which is intangible such as your bank accounts. There
     are some other types of property which are exempt from
     execution under State and Federal law, such as wearing
     apparel, bibles, school books, sewing machines,
     military uniforms and equipment, most wages and
     unemployment compensation, social security benefits,
     certain retirement funds and accounts, certain veteran
     and armed forces benefits, certain insurance proceeds
     and such other exemptions as may be provided by law.
     R.409(2).

                                 12
their last known addresses.    In addition, the executing officer

must post handbills in the office of the district justice who

issued the order of execution, at the place of levy, and at the

place of sale, at least six days prior to the sale.    R.412.

     The District Justice Rules provide for two ways of

challenging the levy prior to sale of the goods.    First, the

judgment debtor can file an objection in the office of the

district justice on the ground that the levy is "illegal or

excessive compared to the amount of the judgment, interest, and

probable costs."   R.413(1).   Second, a third party with an

interest in all or part of the property levied can file a claim.

R.413(2).   The filing of such an objection stays the sale of the

property pending a hearing pursuant to Rule 420.    R.413.

     A district justice must hold a hearing on such an objection

not later than five days after it is filed, after notifying all

parties "by telephone or other timely means of communication."

R.421.   The justice must then rule on the objection not later

than three days after the hearing.    Id.   In making such ruling,

the district justice may, among other things,
     (1) Reappraise or redesignate property appraised or
     designated by the executing officer, or order inclusion
     in the levy of property set aside by that officer;

     (2) Stay or order the abandonment of the levy in whole
     or in part, or release property from the levy;

     (3) Stay or prohibit a sale of all or part of the
     property levied upon;


R.420(B).   Any stay of the execution proceedings ordered by the

district justice is effective immediately.    R.421(D).   Other



                                 13
orders do not take effect for ten days, so as to allow an

aggrieved party in interest to appeal.      Id.

     To appeal from a Rule 420 ruling of a district justice, the

aggrieved party must file a statement of objection with the

district justice within ten days of the order or determination.

R.1016.   Unless and until the court of common pleas orders

otherwise, the filing of an objection operates as a stay on any

execution proceedings.    R.1020.    The court of common pleas

reviews the district justice's determination de novo.        R.1019B.

     In reviewing these procedural protections, the question we

must ask is whether they "represent[] a fair accommodation of the

respective interests of creditor and debtor."        Finberg v.

Sullivan, 634 F.2d 50, 58 (3d Cir. 1980).         We easily conclude

that they do, especially in light of the fact that the plaintiffs

already had an opportunity to be heard at the original landlord-

tenant proceeding and thus clearly had notice of the money

judgment against them.    The rules outlined above provide ample

notice of the levy and execution proceedings, explain the

judgment debtor's rights and liabilities, set forth the

procedures for filing objections and provide for prompt hearings

on those objections.     They protect the interest of the judgment

creditor by keeping the levy in place during the appeals process,

thus preventing the judgment debtor from selling or secreting the

property; and they protect the interests of the judgment debtor

by providing a forum for a hearing and staying execution of the

levy until its validity has been determined.        That the appeals

process may be delayed at the court of common pleas level is


                                    14
attributable to the operations of that court, not the procedural

rules at the district justice level, and in any event, does not

rise to the level of a constitutional violation.    Plaintiffs'

challenge is to the District Justice Rules governing levy and

execution proceedings.   What happens at the court of common pleas

is beyond the province of those rules.

     Plaintiffs argue that the automatic stay provision of Rule

1020, which prevents all district justice orders affecting

"execution proceedings" from taking effect once an appeal has

been filed, infringes the due process rights of judgment debtors

insofar as it prevents enforcement of orders releasing their

property from levy during the weeks or months appeal is pending

before the court of common pleas.    Had the levying constables in

this case taken actual physical possession of the judgment

debtors' property, rather than leaving it in the place of levy,

this argument might have some merit.   Under those circumstances,

the automatic stay provision of Rule 1020 might infringe upon the

due process rights of judgment debtors because it would

completely deprive them of all use and possession of their

property pending appeal, despite a district justice order in

their favor.   However, that issue is not before us, and we do not

decide it here.   We conclude simply that where, as here, (1) the

levying constable does not take physical possession of the

property of a judgment debtor but rather leaves it (theoretically

at least) in the possession of the judgment debtor, (2) a

district justice issues an order releasing the judgment debtor's

property from levy, and (3) that order is stayed pursuant to Rule


                                15
1020 pending appeal, the fact that several weeks or months may

elapse before the court of common pleas finally determines the

validity of the order on appeal does not render the automatic

stay provision of the District Justice Rules violative of due

process.

                                VI.

     Plaintiff's second argument on appeal is that the levies at

issue violated the Fourth Amendment protection against unlawful

seizures insofar as the official levy form lent apparent

authority to the landlords' unlawful retention of the property of

their evicted tenants.   Here again, we disagree.   While the

Fourth Amendment protects property rights outside the criminal

search and seizure context, Soldal v. Cook County, Illinois, 113

S. Ct. 538, 543 (1992), a seizure of property only violates the

Fourth Amendment if it is unreasonable.   Id. at 549

("'reasonableness is still the ultimate standard' under the

Fourth Amendment")(citation omitted).

     In this case, the constables had authority to levy on

plaintiffs' property in the form of an order of execution from a

district justice.   As the Supreme Court noted in Soldal, making a

showing of unreasonableness when the officer in question was

acting pursuant to a court order "would be a laborious task

indeed."   Id.   Moreover, that the levies coincided with

plaintiffs' evictions does not transform the levies into

unreasonable seizures in violation of the Fourth Amendment. While

we recognize the hardship that plaintiffs suffered as a result of

the combination of levy and eviction, we cannot conclude that


                                 16
either the constables or the rules under which they acted violate

the Constitution.

                              VII.

     For the foregoing reasons, we will affirm the judgment of

the district court.




                               17
CINEA v. CERTO, No. 95-3168



STAPLETON, Circuit Judge, Concurring:



           As the court observes, this case does not present a

substantial constitutional issue.    My reasons for so concluding

are somewhat different, however, than those assigned in the

court's opinion.

           A levy is a seizure under color of state law.   See,
e.g., 15 Pennsylvania Law Encyclopedia, Execution §§ 61, 62

(1959).   Such a seizure constitutes deprivation of a property

interest for due process purposes whether or not the judgment

debtor may ask the permission of the seizing officer to move the

property and whether or not the seizing officer may choose to

allow the judgment debtor to continue to exercise some of the

attributes of ownership.   See Finberg v. Sullivan, 634 F.2d 50,

59-60 (3d Cir. 1980).   As the court's opinion demonstrates,

however, appropriate process in the factual context of this case

was afforded under the District Justice Rules.   The levy was a

court authorized seizure based on a duly entered final judgment

and an opportunity was afforded to secure relief from an

erroneous or excessive seizure within a maximum of eight days.

This process exceeds the minimum process due under the

Constitution as interpreted in Finberg.



                                18
           None of the appellants here is in a position to advance

the only arguable constitutional issue presented by the District

Justice Rules.   If Rule 10200 were interpreted as automatically

precluding a judgment debtor with a meritorious claim for relief

from an erroneous or excessive seizure from securing that relief

prior to a final merits decision in the Court of Common Pleas, a

judgment debtor adversely affected by the application of the Rule

as so interpreted would be able to raise a substantial

constitutional issue.0    The stay provided by Rule 1020, however,

is triggered only by the filing of "a statement of objection" -

i.e., an appeal -- with the Court of Common Pleas.    Thus, this

substantial issue would be presented for decision only if an

appellant had been successful on her objection before the

district justice but the release of her property had been stayed


0
    Rule 1020 provides:

                Until further order of the court of
           common pleas, receipt by the district justice
           of the statement of objection shall operate
           as a stay of any execution proceedings that
           may be affected by the proceedings on the
           statement.
0
  It is not necessary to construe Rule 1020 in this manner. Rule
1020 provides for "a stay of any execution proceedings that may
be affected by the" appeal. At the time the Rule comes into
play, the levy has been completed and, of what remains to be
done, the execution sale proceedings would seem to be the most
likely intended object of the stay. As so construed, Rule 1020
would serve only to protect a judgment debtor's property from
sale when he or she has appealed from a decision of the district
justice in favor of the creditor. Given that this is the most
natural reading and that a contrary one would raise substantial
issues under the United States Constitution, I believe the
Supreme Court of Pennsylvania would be more likely to adopt this
interpretation.

                                  2
under Rule 1020 when the landlord appealed to that court.      No one

other than Barbara Cinea in this case filed an objection with a

District Justice.    Cinea filed an objection and secured an order

releasing some of her property.       The district court's findings of

fact, however, indicate that the landlord appealed only her

mother's judgment and the record evidences no appeal from the

order releasing a portion of her own personal property. Because

no one involved in this case was adversely affected by Rule 1020,

the court properly expresses no opinion on its interpretation or

constitutionality.




                                  3
