NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-4175

_____________

MICHAEL MARCAVAGE,

Appellant

 

v.

BOROUGH OF LANSDOWNE, PENNSYLVANIA; 

MICHAEL J. JOZWIAK, BOROUGH CODE OFFICER, 

IN HIS OFFICIAL AND INDIVIDUAL CAPACITIES

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civ. No. 2-09-cv-04569)

District Judge: Honorable Anita B. Brody

______________

Submitted Under Third Circuit LAR 34.1(a)

June 7, 2012

______________

Before: SCIRICA, GREENAWAY, JR. and COWEN, Circuit Judges.

(Opinion Filed: August 9, 2012)

______________

OPINION

______________
2

GREENAWAY, JR., Circuit Judge.

This case arises from the United States District Court for the Eastern District of 

Pennsylvania’s grant of summary judgment as to Appellant Michael Marcavage’s 

(“Marcavage”) civil rights action under 42 U.S.C. § 1983. Marcavage brought suit 

alleging that Lansdowne Ordinance 1188 (hereinafter, “Ordinance 1188”) and its 

successor, Lansdowne Ordinance 1251 (hereinafter, “Ordinance 1251”) are 

unconstitutional both on their face and as-applied to him. The District Court granted 

summary judgment in favor of Appellees Borough of Lansdowne and Michael Jozwiak 

(collectively, “Lansdowne”). For the reasons stated herein, we will affirm the District 

Court’s order. 

I. 

Because we write primarily for the benefit of the parties, we recount only the 

essential facts. 

BACKGROUND

Marcavage owns two rental properties in Lansdowne, Pennsylvania – one located 

at 62 East Stewart Avenue and another at 34 East Stratford Avenue. He rents three of 

the four units at these two properties. He resides in one unit on the first floor of the 

Stewart Avenue property. Because the property is divided into rental units, Lansdowne

required Marcavage to obtain a rental license pursuant to Ordinance 1188. Lansdowne, 

Pa., Code § 265-4 (“It shall be unlawful for the owner of any premises . . . to operate, 

rent or lease any premises or any part thereof . . . without first acquiring one of the 

below-approved licenses issued by the Code Department . . . .”). To obtain a rental 
3

license, the owner of the property must have the property inspected by a Code 

Enforcement Officer. Id. Alternatively, the owner may obtain, “written certification 

from a Pennsylvania licensed architect or licensed engineer that states that the owneroccupied portion of a rental property complies with all of the provisions of applicable 

laws.” Id. at § 265-4(D).

1

If an individual fails to comply with Ordinance 1188, Lansdowne may issue a

notice of violation absent inspection. Id. at § 265-5. Despite owning the properties since 

the adoption of Ordinance 1188, Marcavage neither requested an inspection nor had a 

licensed engineer or architect approve the property. As a result, Marcavage received 

annual notices from the Code Department urging him to comply with Ordinance 1188

and obtain an inspection. Marcavage refused on the grounds that the inspection 

constituted an unreasonable search and seizure in violation of the Fourth Amendment. 

He continued renting the units in violation of Ordinance 1188. Because Marcavage 

continued renting the units, Lansdowne could, “in addition to other remedies, institute . . . 

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. at § 

265-10(C). 

 To initiate the inspection proceedings, the applicant is 

responsible for “contact[ing] the Code Department [to] schedule all inspections.” Id. at § 

265-7(A) and (B).

 1 This provision was added in Ordinance 1251, which amended Ordinance 1188. 
4

On September 30, 2009, Code Enforcement Officer Jozwiak posted notices on 

Marcavage’s two properties which read: 

NOTICE

This Structure has been Declared an 

For failure to obtain the required rental license. 

Unlawful Rental Property 

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 

WILL BE PROSECUTED. 

(App. at 50). Marcavage inferred from these notices that he was required to cease 

occupying the building or face prosecution. He spent the nights of October 1 and 2, 2009 

in a hotel and the following two nights at acquaintances’ homes. Although he expressed 

concerns about the inspection requirement on several occasions, he did not appeal the 

decision. Id. at § 265-12 (“The owner, applicant, or agent thereof, may appeal a decision 

of the Code Enforcement Officer or request a modification of the strict letter of this 

chapter in accordance to [Lansdowne Code].”).

On October 5, 2009, Marcavage filed suit in the United States District Court for 

the Eastern District of Pennsylvania to enjoin Lansdowne from enforcing the notices. 

After Lansdowne agreed to take no further action until the resolution of the case, 

Marcavage returned to his home. On April 21, 2010, Lansdowne amended Ordinance 

1188 with Ordinace 1251. The amendment clarified rights and obligations that owners 

and others occupying the units have with regard to the rental inspection requirement. Id. 

at § 265-10(E). 
5

Ordinance 1251 provided that: 

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.

Marcavage then filed an Amended Complaint seeking: (1) to declare both 

Ordinances 1188 and 1251 unconstitutional; (2) a permanent injunction under 42 U.S.C. 

§ 1983 prohibiting Lansdowne’s enforcement of Ordinance 1251; and (3) damages 

against the Lansdowne under § 1983 for allegedly seizing Marcavage’s residence.2

 

Marcavage filed a motion for partial summary judgment arguing that the Ordinances 

were unconstitutional. Lansdowne cross-moved for summary judgment on the ground

that the Ordinances did not infringe upon Marcavage’s constitutional rights. The District 

Court granted summary judgment in favor of the Appellees.3

 2 The District Court reviewed Marcavage’s constitutional claims regarding to Ordinance 

1188. It concluded that there was no material distinction between ordinances 1188 and 

1251 that would alter the constitutional analysis. Because Ordinance 1251 serves as a 

amendment to Ordinance 1188, we refer to them collectively as “the Ordinance” for the 

remainder of this analysis. 

Marcavage timely 

appealed.

3 Because Marcavage sued Jozwiak based on his capacity as a Code Enforcement Officer, 

we refer to Appellees collectively as “Lansdowne.”
6

II. 

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have 

appellate jurisdiction under 28 U.S.C. § 1291. 

JURISDICTION AND STANDARD OF REVIEW

We review the District Court’s order granting summary judgment de novo. Azur 

v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). “To that end, we are 

required to apply the same test the District Court should have utilized initially.” 

Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 181 (3d 

Cir. 2009) (internal quotation marks and citation omitted). 

Summary judgment is appropriate “where the pleadings, depositions, answer to 

interrogatories, admissions, and affidavits show there is no genuine issue of material fact 

and that the moving party is entitled to judgment as a matter of law.” Nicini v. Morra, 

212 F.3d 798, 805-06 (3d Cir. 2000) (en banc) (citing Fed. R. Civ. P. 56(c)).4

 4 FED. R. CIV. P. 56 was revised in 2010. The standard previously set forth in subsection 

(c) is now codified as subsection (a). The language of this subsection is unchanged, 

except for “one word—genuine ‘issue’ bec[ame] genuine ‘dispute.’” Fed. R. Civ. P. 56 

advisory committee’s note, 2010 amend.

 “Once the 

moving party points to evidence demonstrating no issue of material fact exists, the nonmoving party has the duty to set forth specific facts showing that a genuine issue of 

material fact exists and that a reasonable factfinder could rule in its favor.” Azur, 601 

F.3d at 216 (quoting Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d 

Cir.1999)). In determining whether summary judgment is warranted “[t]he evidence of 

the non-movant is to be believed, and all justifiable inferences are to be drawn in his 
7

favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “Further, [w]e may 

affirm the District Court on any grounds supported by the record.” Kossler v. Crisanti, 

564 F.3d 181, 186 (3d Cir. 2009) (internal quotation marks and citation omitted).

III. 

Marcavage presents four arguments on appeal. First, he asserts that the Ordinance 

is unconstitutional on its face because it requires citizens to consent to a warrantless 

search of their residences in violation of the Fourth Amendment. Second, he posits that 

the Ordinance, on its face, violates the Fourteenth Amendment, because it allows city 

officials to interfere with a landlord’s property interests if that landlord does not consent 

to a search of the property for the purpose of attaining the required rental license. Third, 

Marcavage makes an as-applied Fourth Amendment challenge to the Ordinance, arguing 

that Lansdowne seized his property based on his refusal to consent to the search of his 

residence. Finally, Marcavage asserts that Lansdowne officials violated his procedural 

and substantive due process rights by allegedly evicting him from his residence and 

prohibiting him from renting his property. We will address each issue in turn.

ANALYSIS

5

A.) 

We characterize Marcavage’s first two arguments as facial attacks because they 

challenge the Ordinance’s constitutionality based solely on its text. See City of Lakewood 

v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 n.11 (1988). In order for Marcavage to 

Facial Constitutional Challenges

 5 Because Marcavage waived his argument regarding any property interest in his tenants’ 

residences, we consider only whether the Ordinance infringed upon his privacy interest in 

his own residence. Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005). 
8

prevail on these two claims, he “must establish that no set of circumstances exists under 

which the [Ordinance] would be valid [under the Constitution].” United States v. 

Salerno, 481 U.S. 739, 745 (1987). Thus, facial attacks are especially difficult to mount. 

Id. 

Here, Marcavage posits that the Ordinance’s requirement that a city official 

inspect a rental property before it issues a rental license constitutes an unreasonable 

search and seizure under the Fourth Amendment. According to Marcavage, the search 

requirement constitutes a warrantless administrative search similar to that prohibited in 

Camara v. Mun. Court of San Francisco, 387 U.S. 523 (1967). In Camara, the Supreme 

Court considered a Fourth Amendment challenge to two sections of San Francisco’s

housing code by a property owner that was prosecuted for refusing to allow a city 

inspector to enter his property. One ordinance allowed authorized employees of the city 

to enter any building for the purpose of conducting inspections or performing any duty 

imposed upon him by the municipal code (absent any cause or stated reason for the 

inspection). 

The other ordinance established criminal penalties for any owner who refused to 

allow a city inspector to enter his property in accordance with San Francisco’s municipal 

code. The Supreme Court held that the ordinances violated the Fourth Amendment 

because they provided the inspectors with unfettered discretion to intrude on a property 

owner’s rights, unless the owner challenged the warrantless inspection at the risk of 

criminal sanction. See Camara, 387 U.S. at 532-33. 
9

As the District Court properly noted, the Lansdowne ordinance poses no such 

threats to an owner’s property rights.6

 To begin with, the Ordinance carries no criminal 

penalties based on an owner’s refusal to allow an inspection. It also does not provide the 

city employee with unfettered discretion in deciding if and when to conduct an 

inspection. Contrary to Marcavage’s characterization, the property owner holds the 

power in the process. It is the property owner that decides if he wishes to use the 

property as rental units. If so, the property owner initiates the scheduling of the 

inspection in order to obtain a rental license. At all times, the property owner may refuse 

to consent to a search, at which point, no criminal sanctions attach and no search will take 

place.7

Additionally, if the property owner does not wish to consent to an inspection by a 

city official, the Ordinance provides him with an opportunity to select a licensed architect 

or engineer of his choice to conduct the inspection and submit a report to the City. 

Unlike the San Francisco ordinances, the Ordinance here authorizes an inspection for the 

specific purpose of obtaining a rental license and requires at least forty-eight hours 

 

 6 Because Marcavage waived his ability to assert a privacy interest in his tenants’ 

residences (by not briefing the issue before the District Court), our analysis pertains 

solely to his privacy interest in the residence that he occupies. Bagot v. Ashcroft, 398 

F.3d 252, 256 (3d Cir. 2005).

7 The only time a penalty attaches to the refusal to consent to a search is if the property 

owner continues leasing the property after failing to obtain a license. See Lansdowne, 

Pa., Code § 265-14. 
10

notice. This is a stark contrast from the language of the San Francisco ordinances, which 

authorize searches at any reasonable time for any purpose under the local municipal code. 

Marcavage has failed to provide evidence indicating that there is no set of 

circumstances under which the Ordinance does not offend the Fourth Amendment. 

Additionally, our review of Supreme Court precedent indicates that the Ordinance would 

pass constitutional muster based on the fact that it requires a limited search by a city 

official for the specific purpose of receiving a benefit under the law. See, e.g., Wyman v. 

James, 400 U.S. 309, 317 (1971). For these reasons, his facial challenge under the 

Fourth Amendment fails.

Marcavage has similarly failed to show that a genuine dispute of material fact 

exists regarding his Fourteenth Amendment facial challenge. The Fourteenth 

Amendment prohibits state actors from depriving persons of life, liberty, or property 

without due process of law. U.S. Const. amend. XIV, § 1. “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, 334 (1976) (quoting 

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

Here, Marcavage essentially reargues his Fourth Amendment claim and suggests 

that the Ordinance interferes with his property rights by conditioning the unrestricted use

and enjoyment of the property upon the waiver of his Fourth Amendment rights. He 

grounds this argument in the recognized notion that a state cannot condition a privilege 

on a person’s waiver of constitutional rights. United States v. Chicago, M., St. P. & P. R. 
11

Co., 282 U.S. 311, 328-29 (1931) (“[T]he right to continue the exercise of a privilege 

granted by the state cannot be made to depend upon the grantee’s submission to a 

condition prescribed by the state which is hostile to the provisions of the federal 

Constitution.”). 

Because we find that the Ordinance, on its face, poses no threat to Marcavage’s 

Fourth Amendment rights, we similarly find no intrusion upon his Fourteenth 

Amendment rights. Marcavage’s ability to reside on the property as the owner is 

unaffected by the Ordinance. Furthermore, his freedom to use the property as rental units 

is affected only by a reasonable inspection requirement, not an unconstitutional search 

under the Fourth Amendment.8

B.) 

 

Marcavage’s final two arguments challenge the Ordinance’s constitutionality 

based on its application to him. Thus, we consider whether the specific facts of this case 

indicate that Lansdowne infringed upon Marcavage’s Fourth and Fourteenth Amendment 

rights.

As-applied Constitutional Challenges

Marcavage argues that Lansdowne evicted him and his tenants from their homes 

based on his refusal to consent to a warrantless search when it posted the Notice on his 

 8 Marcavage’s brief also includes a facial procedural due process challenge under the 

Fourteenth Amendment. Because the text of the statute explicitly provides for an appeals 

process, this argument must fail as a facial challenge. We will, however, address his 

procedural due process argument in detail during our later discussion of his as-applied 

Fourteenth Amendment claim.
12

properties. The District Court articulated the proper standard for such alleged violations 

as follows:

Under the Fourth Amendment, a “seizure” of property “occurs when 

there is some meaningful interference with an individual’s possessory 

interests in that property.” Soldal v. Cook Cnty., 506 U.S. 61 (1992) 

(citation and internal quotation marks omitted). “[S]eizures of property are 

subject to Fourth Amendment scrutiny even though no search within the 

meaning of the Amendment has taken place.” Id. at 68. This Fourth 

Amendment right against unreasonable seizure is “transgressed if the 

seizure of [a person’s] house was undertaken to . . . verify compliance with 

a housing regulation, effect an eviction by the police, or on a whim, for no 

reason at all.” Id. at 69.

Marcavage v. Borough of Lansdowne, Pa., 826 F. Supp. 2d 732, 745 (E.D. Pa. 2011). 

On September 30, 2009, Lansdowne posted a Notice on Marcavage’s residence stating 

that the structure had been declared an unlawful rental property and indicating that it 

would be unlawful for Marcavage to collect rent or allow use or occupancy of the 

building until he obtained a rental license. According to Marcavage this notice 

constituted an unreasonable seizure under the Fourth Amendment because “it interfered 

with his possessory interests in occupying his own home and purported to forbid him 

from receiving rents from his other properties.” (Appellant Br. at 19-20). This argument 

is unpersuasive.

The notice served as an official statement of Marcavage’s failure to comply with 

the Ordinance as a landlord. At no point did the notice state that Marcavage would be 

removed from his home, nor did it order him to vacate the premises. Similarly, it made 

no mention of any judicial order of eviction and did not cite any local code sections 

referencing eviction. Marcavage states that he interpreted the notice as an eviction and 
13

did not immediately return to the property. This erroneous interpretation is insufficient as 

evidence of an alleged unconstitutional seizure of property. 

Finally, Marcavage argues that Lansdowne violated his Fourteenth Amendment 

rights to procedural and substantive due process by abruptly evicting him from his home 

and precluding him from collecting rent.9

Because we hold that Lansdowne did not seize Marcavage’s property when it 

posted the notice, Marcavage was never denied a right as a property owner seeking to 

 As we previously noted, the Fourteenth 

Amendment requires that all individuals be afforded due process – that is “the 

opportunity to be heard at a meaningful time and in a meaningful manner” – before the 

denial of life, liberty or property under the law. Mathews, 424 U.S. at 333. When an 

individual brings suit under 42 U.S.C. § 1983 for a state actor’s alleged failure to provide 

procedural due process, we consider “(1) whether the asserted individual interests are 

encompassed within the fourteenth amendment’s protection of life, liberty, or property; 

and (2) whether the procedures available provided the plaintiff with due process of law.” 

Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (internal quotation marks and citation 

omitted).

 9 In his statement of issues, Marcavage presents a substantive due process challenge 

under the Fourteenth Amendment. We do not consider this argument in our analysis for 

two reasons. First, the District Court did not substantively consider the argument because 

it found it to be waived as not properly presented before the Court. Second, Marcavage 

similarly stated the issue in his brief to this Court but failed to allege facts to support his 

claim or otherwise pursue the argument. Accordingly, this argument is waived. See Kost 

v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). 
14

inhabit his property. Therefore, we find no deprivation of his property interests as an 

owner residing on his property. The only arguable issue is whether procedures were 

available to provide Marcavage with due process regarding Lansdowne’s restriction of 

the use of the property as rental units. We hold that there were. 

The text of the Ordinance explicitly provides for an appeal of the decision or the 

ability to request a modification of the strict letter.10

In order to state a claim for failure to provide due process, a plaintiff 

must have taken advantage of the processes that are available to him or her, 

unless those processes are unavailable or patently inadequate. [A] state 

cannot be held to have violated due process requirements when it has made 

procedural protection available and the plaintiff has simply refused to avail 

himself of them. A due process violation is not complete when the 

deprivation occurs; it is not complete unless and until the State fails to 

 Lansdowne, PA., Code § 265-12 

(2003). Marcavage concedes this point but nonetheless argues that this appeals process

offends due process because it is only available after the resistant owner has been 

deprived of his property rights. This assertion is inaccurate. Lansdowne sent Marcavage 

yearly notices regarding his non-compliance, so Marcavage was well aware of the 

applicability of the Ordinance and its consequences. Additionally, Marcavage’s property 

rights were only affected because he chose not to avail himself of the formal appeals 

process, not because the process was lacking. This fact, alone, is dispositive of the 

procedural due process issue. We have previously stated that,

 10 “Strict letter” is a term of art identified in Ordinance 1251. As it applies here, 

modification of the strict letter refers to a request that the rules be modified (or less 

strictly enforced) in a particular circumstance as a means of avoiding a finding of noncompliance.
15

provide due process. If there is a process on the books that appears to 

provide due process, the plaintiff cannot skip that process and use the 

federal courts as a means to get back what he wants.

Alvin, 227 F.3d at 116 (internal quotation marks and citations omitted). 

Marcavage’s failure to avail himself of the appeals process precludes him from 

stating a claim under the Fourteenth Amendment. Consequently, his Fourteenth 

Amendment as-applied challenge also must fail. See id.

IV. 

For the reasons stated above, we will affirm the District Court’s order.

CONCLUSION