2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

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D ocke t N o . 02-4434

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UNIT ED STA TES C OURT OF

APPEALS FO R T HE TH IRD CIR CU IT

No. 02-4434

GUILERM INA RUIZ; RODOL FO VILLAGOMEZ; ANTONIO LOPEZ; ANTONI O ORTI Z; RAFAEL LUNA; ANGELICA SANCHEZ; JOSE J. PADR ON ; and J. GUADALU PE LOPEZ

v.
NEW GARDEN TOWNSHIP; ROBERT N. TAYLOR, II I; WILL ARD H.

SMEDLEY ; PATRICK J. KENNEY ; NORMA N S. NUNN; FRANK J. ZAGORSKIE; THE ZONI NG HEARI NG BOARD OF NEW G ARDEN TOWN SHIP; DAVID C ARLI N; A NGELO ZUN INO;

JAMES DIL UZI O, Ap pellan ts

DAN TE DI UBL ADO ; LU CY M

. DI UB LA DO , (Inte rve nor s in D .C.)

On Appeal from the United St ates

District Cou rt for the Easte rn D istrict of P enns ylvania (CivilAction No. 01-CV-5081) Distri ct Judge: Hon. Anita B. Brody

Argued: December 15, 2003

Bef or e: ROTH, McKEE, an d ROS ENN, Circuit Judges.
(Opinion Fi led: J uly 26, 2004)

ARTH UR W . LEFCO, ESQ . (Argued) JAMES W. GI CKI NG, ESQ. Marshall, Dennehey, Warner, Coleman & G ogg in 1845 Walnut Stre et, 17th Floor Philadelphia, PA 19103-4717 Atto rneys fo r Ap pellan ts

ROB ERT F. SAL VIN, ESQ. (Argued) Community I mpact Legal Services, Inc. 419 Avenue of the States Crozer Buil ding, Sui te 201 Chester, PA 19013 Attorneyfor Appelle es

OPINI ON OF THE COURT

M cK EE , Circuit

Judge

. We are asked to review an order of the di st ri ct co ur t e nj oi ni ng N ew G a rden Tow nship a nd i ts employ ees (“t he2

Township”) from enforci ng a zoning enforcementnotice that would ha ve
resu lte d in the e victi on of plai ntiff tenants. 1 T he plai ntiff s requested the injunct ion pursu ant to 42 U.S.C. § 1983 arguing that t

he Township had viol ated their F ourtee nth A men dm ent righ t to proceduraldue process in fai ling to notify them of a zoning hearing int o whether their landlord was violatin g certa in zoning ordinance s by all owing m obile homes o n prop erty not zoned for res identi al us e. We agree that pl ainti ffs have not est ablis hed a proceduraldue pr oc es s v io lati on, an d we will t herefore reverse.
I. FACTS AN D PROCEDURAL

HIS TORY
Since the 19 90s, pl ainti ff s Guillermina Ru iz, Ro dolfo Villa g omez, An tonio Lopez, Ant oni o Ortiz, Rafael Luna, Angeli ca Sanc hez, Jose J. Pa dro n and J. Guadalupe Lopez have been tenan ts in mo bile ho mes locate d at 32 0 Ellico tt Road in New Gard en Tow nship , Pe nn syl vania. Sinc e 198 9, that p rope rty has been d esignated as a C-I

- 2 Limited Co mm ercial In dustria l District. 2

The plaint

iffs pai d rent i n the amount of $ 500 to $6 00 p er mo nth pursuant to oralleases with Dante and Lu cy DiUbaldo. 3 It i s uncontes ted that Di Uba ldo agreed that at least one of the tenan ts co uld remain on the property for up to three years and that D iUb aldo w ould decide how long t

he tenant would have to

vaca te the pro perty if he deci ded to lea ve.
On Jun e 2 2, 200 0, the T ow nship issuedan enforcement no ti ce citing DiUbaldo for viol ations of the town ship’s zoning ordinance . The vio lati on resul ted from the pres ence of the plaintiff s’ mo bile homes on t he p roperty l ocated at 320 El licott Roa d. The zo ni ng n ot ic e wa s issuedb e cause the light indust rialzoning desig natio n of that

property di d not all ow the property t o be us e d as a tr aile r park. 4 1 The defe ndan ts also a sk us to

revers e the d istrict cou rt’s dec ision to deny its m otion to dism iss purs uant to Fed. R. Civ. P. 12(b) (6) and or der that the a ction be d ism issed wit h pr ejud ice. The record before us regarding the dispo sition o f the m otion to dism iss is uncle ar. Th e district c ourt m ention s it in its opinion i n support of issui ng the permanent i njuncti on but does not explic itl y st ate that it

denied the motion or explai n why it

denied the motion. Nor does the moti on appear on the dist rict court docke t included in the record on appeal. As a result , we feel t hat the district co urt w ould be be tter equ ipped to revisit its de cision a nd th e state o f this clai m on remand. 2 The property cont ains “mushr oom hou ses.”

3 We will refer

only to Mr. DiUbaldo in the rest of t

he opinion be cause he

m an ag ed th e p ro pe rty.

4 The p roperty becam e part of the C -I2 Limited Commercia l Indust rialDistri ct when it was re- zoned in 1989, but had bee n zo ned as re side ntial bef ore han d.3

The not ice requ ired D iUb aldo to begin removing th e m ob ile ho m es w ith in 10 da ys and t o complete t

he process within 45 days. T he notic e also i nformed him that he could appe al the e nfo rcem ent ac tion to the New G arden Townshi p Zoning Hearing Board (“ZH B”).
DiUbaldo did appe al, and heari ngs
were held on November 15 and December 13, 200 0, b efore the ZHB. None of the tenant s p arti cipat ed in that appealalthough notice of the hearin gs w as ap paren tl y posted on t he E llico tt Ro ad p rop erty. The ZH B denied DiUbaldo’ s appea l on January 22, 2001, but i t altered the terms of t he af orementi oned enfo rcement or der

. DiUbaldo wa s orde red to g ive the tenan ts notice to qu it th e p ro pe rty b y M arch 1 , 2001 an d he was ordered t o remove the mobile homes byJuly2001. 5 As inst ructed, DiUbaldo served the notice s to quit

on the te nants ar ound March 1, 200 1. Plai ntiff Lopez testifie d that this was when he firs t learned that the Tow nship was enforci ng the zoni ng ordinance and the effec t it would have on hi m. Plaintiff Lun a testified that he did not learn of

the si tuati on untilafter the hea ring. De spite the n otice to q uit, t h e tenan ts fail ed to vacate the prope rty b y July 2001, and DiUbaldo the reaft er initiate d eviction proceedings against th em. As a result o f th os e pr oce edin gs, a local magistr ate event ually ordered t

he plaint iffs’ eviction.
The tenan ts then f iled this acti on in the U.S. D istri ctCo urt for the Ea stern Distri ct of P enns ylvania seek ing to enjoin the ZH B’s o rder re quiring DiU baldo to

serve th em w ith notices t o quit. They argued that, giv en the ir prop erty interest, theywere enti tled to notice of the proceedi ngs be fore the ZHB. They clai med that t

he Township’ s f ailure to notify them of those hearings violate d their right to procedur al due proc ess under t he Fou rteenth Am endm ent. 6 As we no ted at the outset , the dist

rict court agreed and granteda perm anen t i njun ction. T his app eal f ollo we d.

II . J URIS DICTI ON AND STANDARD OF REVIEW 5 Although DiUbaldo served the notice s to qui t on the pl ainti ffs pursuant to the e nforcement notice that is sued afterhe l ost

hi s a ppe al bef

or e the ZHB, he also fi led a condi tionaluse appli cati on with the New Garden Board of Supervisor s. At the heari ngs before t he Board of Supervis ors, he argued that the

mo bile ho mes we re a pe rmissib le expansion of apre-exi sti ng nonconforming use be cause one of the

mo bile ho mes wa s place d on the pro perty before 1989 when the pr opertywas rezone d. It is un dispu ted tha t the ten ants were properly given notice of these hearings , and that some of them attended the hearings. T he Bo ard of S upervisors denied hi s appli cati on. 6 They al so argued that some of the procedural safeguards that due process requir ed were codifi ed in the hearing notific ation g uidelin es at 53 Pa. S tat. An n. § 1 061 6.1 ( 200 3).4

The distri ct court’s f i nal order gr ant ing a perm anen t injunc tion is appe alable und er 2 8 U .S.C . § 1291. Ame ris teel

Corp. v. I

nt’l Bhd. of Teamsters , 267 F .3d 264, 26 7 (3d C ir. 2001). We have ju risd icti on over the secti on 198 3 claim und er 2 8 U .S.C . § 1331, an d we h ave s upp leme nta l juri sdiction ove r c onc omi t ant st ate l aw issu es u nd er

28 U. S. C. § 1 36 7. “We review a dist

rict court’ s decis ion to gr ant

or deny a pe rmanentinj unction unde r an abuse of d iscre tion stan dar d. How ever, becaus e an ab use o f discr etion e xists whe re the distric t c ourt’s d ecision rests upon a clear ly erroneous finding of fact, an errant conclusion of law , or a n i mproper applic ation of law to fact , we a pply plenary review to t

he Distri ct Court’ s legal

con clus ion s.” Ameristeel , 267 F.3d at 267 ( i nternalquotati on marks and citations omitted).

II I. DIS CUSS ION

In orde r to sati sfy the requ ireme nts for a permanent injunction, plai ntiffs must establish that the y will ulti matelysucceed

on t heir claim

. Shieldsv. Zuccarini , 254 F.3d 476, 48 2 ( 3d C ir. 2001 ). In ord er to prev ail o n t hei r s ect io n 19 83 c la im, plaint iffs must establish th at pers ons acti ng under color of

la w deprived the m of a protected prop ert y i nteres t without due process of

law

. Midnight Sess ions et al. v

. C ity of Ph iladelp hia , 945 F.2 d 66 7, 68 0 (3d Cir . 199 1).
State law d efine s prop erty interests for purposes of pr oc e dural due process claims. See B d. of R egen ts v. Ro th , 408 U.S. 564, 577 (1972) . The parties agr ee that, und er Pe nnsylva nia la w, leaseholders have the sa me right to possessi on of real estate as an o wn er duri ng the te rm of the lease. The distric t cou rt found t hat the plaint iffs had a protected propertyinterest in the fo rm o f oral m onth -to-m onth leases because the conduct between the parties establ ished that

the plaint

iffs eac h had a

mo nth-to- mo nth lease. H ow ever, w e hold that, even if pl ainti ffs did es tabli sh a protected interest b ased upo n their leaseh old estates, t hey were nevertheless not denied procedural due process because the procedu re util ized bythe ZHB was not

con stit ut io nal lyin fi rm.
“In Pe nnsylvania, if the landlord and tenant

have fail ed to speci fy a def inite periodof time for

the le ase to cont

inue, the court may im ply th e ty pe of tenancy indi cated by the conduct of the parti es. ” R ONALDM. F RIEDMAN , P A. L ANDLORDT ENANT L AW AND P RACTICE § 1.10 (3d ed. 2004). The tenan ts we re requ ired to pay about $500 to $600 monthly , and such

mo nthly rentalpayme nts generally support the existence of a mon th-to-m o nth ten an cy. See R ESTA

TEMEN T ( S ECOND) OF P ROP ERTY § 1.5 (2003) ( “Where the parti es enter i nto a le ase of no st ated durati on and periodi c rent i s reserved or paid, a perio dic tenancyis pre sumed. The pe r iod thus pre sumed is equalto the interval for which rent

is re served o r paid to a maximum peri odic te nancy of y ear to year.” ).
How ever, “[t]he presumpti on that a period ic tenancyis i ntended may be rebutted by language or circumst an ces5

showing a contrary intent .” Id . The reco rd here contai ns unchall enged evidence that the plaint iffs coul d terminate the ir l ea s es at any time, and t hat DiUbaldo would then decide how long tenan ts had to vac ate the ir premises follow ing su ch term inatio n

. Thus, the landlord or

tenant could end the ten ancy abruptl y at

any time even thou g h the rent was cal culat ed and pa i d m on th ly. Since the tenan cies w ere “f or an unce rtain

or indetermina te term wh ich is termin able at the volition of ei ther l andlord or tena nt,” plaint iffs arguably

had interests analogous to tenanci es at wil l rat

he r than month-tomo nth tenan cie s. P.L.E. 2d L ANDLORD AND T ENANT § 74. 7 Although the tenan ts paid r ent on a monthly basis, there is n o evid enc e that t

he plai ntiff

s and DiUbaldo explic itly agreed to mo nth-to- mo nth lea ses , and the di stri ct court does not expla in how it concluded that these w ere
mo nth-to- mo nth le as es as o ppo sed to tenan cies at w ill.
How ever, since the Township now agrees t hat ten ants h ad m onth -to-m onth leases, we wil l pro cee d as if the y did. See Brief at 23 (“a s month-t o- mon th tenants, plaint iffs had n o legitim ate expectation to cont inued possession of prop erty . . .”). 8 Mo reover, und er Pe nnsylv a nia la w, any tenancycreat es a pro perty inter est. Berrios

v. City of

Lancaster , 798 F. Supp. 1153, 1157 ( E. D. Pa. 1992) ( stating that Pen nsylvan ia law regards any lease as a prop erty i n terest); see als o Ward v. Downtown De v. Au th

. , 786 F.2d 1526, 7 See Heck v. Borda , 6 A. 392, 393 (Pa. 1 886 ). The re, the P enns ylvania Suprem e Cou rt reversed a trial court’s holding t hat a l ease est ablis hed a tenancy at will, finding instead that the lease establ ished a y ear-t o-y ear te nancy. The Heck Court found that the parti es intended to c reate a tenanc y from yearto-y ear becaus e the writ ten le ase st ated that the tenancywould last as long as a yearly ro yalty wa s pa id. Id . Because t he lessor h ad ex press a utho rity to termin ate the lease in certain ev ents, the court belie ved this authori ty tended “t o exclude the inf erence” t hat both parti es had the power to terminate it at will, which is a

nece ssary elem ent of a tena ncy at w ill. Id . The court

also hel d that a

provisi on requ iring the landlo rd to sp end a certain amount to put

the proper

ty in working order further es tabli shed that the part ies did n ot inten d to cre ate a ten ancy at w ill. Id . Although t he lease s here al so incl ude a periodi c payment

of rent, they expressl y pr ovide that eit her party can terminate the m at any time. Unlike the lease i n Heck , the y do not limi t the right to ab ru pt ly te rm in ate to on ly o ne pa rty,

nor do thes e or al le as es hav e an y te rms sugg esting th at a fu ture rela tionsh ip is expected. The lease i n Heck requir ed the landlord’s inve stment i n the le ased pr op er ty.

8 The plaintiff s also a rgue that the ir leases we re year-to-yea r, but this argument i s waived because the plainti ffs raise d it fo r the first ti me on a ppe al. See Gass v. V.I

. Tele phone Corp. , 311 F.3d 237, 246 (3d Cir. 200 2).6

1529 (11th Cir.) (di sc u ssing how Florida law makes any tenancy a compen sa ble prop erty interest f or pu rpose s of F if t h Am end me nt p ubl ic tak ing s).
How ever, the plainti ffs’ prope r ty interest here is tenuous at best because any such interest appears to ha ve been created in violat ion of a zoni ng ord inan ce. Cf. Puleo v. Zon ing H earin g B oard of Sc huyk ill Tow nship , 722 A.2d 789 (Pa. Comm w. 199 9) (ho lding th at prop erty

own ers could not

retain a struc ture on their prop erty beca use th ey built the s tructure in violat ion of a z onin g ordinance and another m unicipal ordina nce). 9 How e ver, gi ve n the fa ct s h er e, we need not d ecid e whether pl ainti ffs had a cogn izable prop erty interest because even if they d id, i t is cl ear that they had no

reaso nable expectat ion of futur e occupancy b eyond t

he period whic h the landlord might agre e to in t he event of termination. 10 As noted, t hat per i od was und efined and left

completel y t o t h e dis c reti on of the land lord. How ever, Pen nsylv ani a law requires that tenant s be given at least 30 days’ n ot ice of termination. 68 Pa. C.S. A. § 250.501(c) (2001). Ac cor din gly, i t a ppears that the tenan ts co uld reason ably expect no m ore th a n present

enjoy ment of thei r leas ed premises and 30 days additi onal occupa nc y upon notice that the ir landlo rd de cided to termin ate any of t

heir l ea ses. See Ward , 786 F.2d at 152 9 (stati ng in dicta that legally suff icient n otice to vaca te wo uld termin ate a tenant’s intere st as of the end of the no tice period). 11 9 Judg e Ro senn ’s ana lysis begin s with the concl usion that “[i ]t i s undisputed that ne ither

the landowner nor the plaint iff-renters have complied wit h any of [ the a ppl icab le zo nin g] c ode s.” Concurring Op. at

3. It then proce eds governed by the pri nciple that “ the unlawful occupat

ion of the rental property bythe pla inti ff-renters has vested no pr opertyright in them. ” Id . at 5 (citing Puleo ). However, t he plai ntiff

renter s are compla ining t hat the y had no opportuni ty to appear

at the zoning hearin g that f oun d their p rope rty to be in violat ion and the refore coul d not defend again st that alleg ation. In asm uch a s it appears tha t the trailers in question are the on ly home s the p laintiffs have , their interest i n defending agai nst the violat ions was at

least as str ong as that

of DiU bald o, th e ab sen tee o wn er. Accordingly , an anal ysi s that begins and ends with charging the pl ainti ffs with t he outcome of the z oning heari ng does not

adequatel y r espond to t

he legalchall enge implic it in plaintif fs’ ap peal.

10 Cf. U.S. v. Petty Motor Co. , 327 U.S . 372 (19 46)

. Petty held that a te nant can not have an e xpectation to remain on property fol lowing condemnati on for public us e given an expr ess te rm in the lease to reli nquish al l ri ghts upon such

con dem natio n. Id . at

376.

11 The tenants in Ward had a prote cted property i nteres t bey ond that pe riod of notice and, b ased on th at, a righ t to proc edur al due proc ess be caus e the sta te7

The ZH B o rdered DiU baldo to notify the te nants of

its ruli ng by March 1, 2001, and to remove t he mobile homes from the pr operty byJuly 1, 2001. Thus, from the time the tena nts first heard of the

nece ssity of

leaving the premises, theyhad fou r mo nths to depa rt. The ir claim e d prop erty i nt er es t, howe ver , e nt itle d t hem t o only 30 additi onal days of tenancyafter the notifi cati on by the landlord of termination of the lease. Thus, the acti ons of the ZHB could not have depri ved the tenant s of any prop erty interes t to remai n on the premises. In fact , the ZHB ruling gave the tenan ts more notic e of terminati on than theywould otherwis e have been entitl ed to. Ac cord ingly, there c ould not have been

an unconsti tuti onal taking of a pr o tect ed prop erty interest. 12 C. Notice
Because the plainti ffs were not deprivedof a p rotecte d pro perty interest in their leases , the Constit ution di d not

ma ndate that t

hey r eceive notice of th e hearing bef ore the Z HB , an d the dis tri ct court’s conclusion to the contra ry can not stand.
The plaint

iffs al so argue that t he Pen nsylvan ia Municipali ties Planning Code (“M PC” ) g i ves th em a right to notice

. However, we a re not pers uaded. The MPC requir es local iti es to se nd an enforcementnotice to “the o wne r of record

o f the parc el on which the violation has occurred, to anyperson who has f iled a writt en request

to rece ive e nf orcement notice s regardi ng that parcel, and to any otherperso n req uested in w ritin g b y the

own er of

reco rd.” 53 P a. St at. A nn. § 106 16.1 (2001). A lessee i s tre ated as a n
owner und er sectio n 10 616 .1 only “if he is authori zed under the l ease to e xercis e the rights of th e l an dow ne r” orothe rwi se ha s
a prop rieta ry interest i n the land. 53 Pa. Stat. Ann. § 10 107 (20 01)

. The plaintiffs meet non e of th ese co ndition s prec eden t to agency that a cquired t

he property and displ aced the tenants di d not meet t he “conditions set

forth i n the le gisl ative grant of i ts aut

hority, ” incl uding holdi ng hearin gs on the ha rdship that the tenan ts

wo uld end ure if the y we re d ispla ced

. Id

. at 1532.

12 At oral argument, the plai ntiff s cite d Schuykil l Township v. Overstree t , 454 A . 2d 695 (P a. Com mw . Ct. 1983), as support

for it s contention that plaint iffs’ leases entitled the m to be present at the ZHB hearing. But Overstree theld o nly that tena nts ha d to be joine d in an action to enf orce an alread y-issued o rder term inating their righ ts to p oss ess th e ren tal pr ope rty. Id

. at 695-96. It says not

hing about whether the te nants had a right t o be present for the de termin ation o f their rig ht to

contin ued p osses sion o f a ren tal prop erty that w as v iolat ing zon ing ord inan ces

. Cf. City o f New Orle ans v . Buffa , 69 S.2d 140, 140-41 ( La. App. 1953) ( bringi ng
an ac tion ag ainst lan dlord and te nant to enjoin the ten ant’s u se of the pre mises in violatio n of city zonin g ord inanc es; this case was als o cite d by the plai ntiff s at oral argum ent).8

getti ng n otice under section 10616.1. There is nothing in t he record e ven
su ggesti ng that t

hey were aut

horized t o exercise the DiU baldo s’ rights a s prop erty owners, that the y had an ything rem otely resembli ng a pro prieta ry interest i n the pr op er ty, or that th e Di Ubaldos reques ted that they rece ive no ti ce o f zoning violations. The refo re, the district court proper ly held that the MPC did not

man date that pla inti ffs be given notice of zoning violation enfo rcemen t. How ever, the court went further

and concluded t

hat th e M PC was unconstitutionalas appli ed because it did not mandate noti ce to the plaintiffs. We have alreadyexplai ned why plaint i ffs are not c onsti tuti onally entit led to notice . Accordingl y, we must rever s e t he dist rict court’ s ruli ng that t

he MPC i s
unc ons ti tu ti ona l a s a ppl ie d t o t hem. 13

IV. CONCLU SI ON
For all of

the above r ea so ns , w e will revers e the di stri ct court ’s order granti ng a permanent i njuncti on. ROSENN , Circ uit J udge, Concurri ng.

I concur in t

he judgment r eversi ng the Distric t C ourt’s d ecision . I write

se pa ra tel y, how e v er, bec ause I cannot agree with the maj ority’ s analy sis bas ed on
an assumpt ion t hat the plaint iffs have a protected property i nteres t. Ialso bel ieve due process analy sis i s unnecessary to the disposi tion of t

his cas e.
I. Where, as here, there i s a clai m of

an alle ged deprivation of pr opertywithout due process, a tw o-part inquiry i s requi red. Ko vats v. Rutgers , 749 F.2d 1041, 1047 (3d Cir. 198 4), cert. denied sub nom. Var ma v. Blo ustein , 489 U.S. 1014 (1989) (citing Logan v. Zimm erman Brush C o. , 455 U .S. 422, 428 (1981)).
The firs t question is whether the pl aintif f[s] [w ere ] de pr ived of a prote cted prop erty interest. P rope rty interest s, while protected by t h e [U nit ed State s ] Constit ution, are not c reate d by the Consti tuti on. “Rather the y are cre ated a nd th eir dimensions are defi ned by exis ting r ules o r underst andings that s tem from an independent

source such as state la w.” Board of Reg ents v. Ro th , 408 U. S. 564, 577, 92 S. Ct. 2701, 2709, 33 L .Ed. 2d 54 8 13 In doing so, we do not suggest that we are insens iti ve to the situation of the plaint iffs. It appears from everything on this record t

hat the se tenant s are migr ant farm ers w ith few if any altern atives to the pli ght in which t

hey found them selv es.9

(1972); see also L eis v. Fly nt , 439 U.S. 438, 441, 99 S. Ct. 698, 700, 58 L.Ed. 2d 717 (19 79) . Th e defini tion of prope rt y, theref

ore, may turn in som e cases on a questi on of state l aw. If a prop erty interest is fou nd to exist, t h e secon d questi on—w hat proc ess is due— is a matter

of fed e ral la w. M emp his L ight, Gas & Water Div ision v . Craf t, 436 U.S. 1, 98 S. Ct. 1554, 56 L.Ed.2d 30 (1 978 ); see Logan , 455 U.S. at 432, 102 S. Ct. at 1155.

Ko vats , 749 F.2d at1047. H owe ver, “[i]f there is no prope rtyinterest, ther e ca n be no valid due process c laim. ” Id. Where, as here, it i s undisputed that

a resi dent ial rentaluse of the pr opertyat issue was set u p by the la ndo wn er in violat ion of state, county, and municipal laws, such use w as nu ll and v oid ab initio

u nder Pennsyl vania l aw. The lando wne r had acquire d no vested prop erty interest in his unlaw ful rental use of the propert y

. Th e pl ai nt if

f- te na nt s, who se in te re st wa s derivat ive and at most c oexten siv e w ith the lando wne r’s i nteres t, ha d acquire d no vested prop erty interest e ither in th e s ame rentalus e o f th e p ro pe rty. Wh ere there is

no property right, there can b e no v iable due pr oc es s c la im as a ma tterof la w.
Wh ere the plainti ffs’ due pr o cess claim fail s as a matter of la w under the first part of the two -part inq uiry set for th in Logan , 455 U.S. at 428, which is a matter of state law, the second part of what process is due , or no t d ue , which is a matter of fede ral law , is irreleva nt. Wh ere the plainti ffs’ cl aim can be adjudic ated as
a matter of stat e law, we should not engage in any u nnecessary cons tit utionaldue pro cess ana lysis. Neese v. Southe r n Railway Co. , 350 U .S. 77, 78 (195 5).
The record i n this ca se establ ishes that the lan dow ner u nlaw fully inst alle d the eleven mo bile homes/ trai lers , without having obtaine d the required permit s from the stat e, county , and municipalauthori ties and in viol ation of

stat e and local(zoning) l aws

. These laws an d ordinan ces we re enacted to promote t

he health, welfar e, and safety of not only the te nants, but als o the general public in the community . For i nstance, the sewage permits are inte nde d to protect

the pu blic against

diseas es. The issue, overlooked by

the Dist rict Court and the pa rties in dis pute, is w hethe r a priv ate rentalarrangement

between the landowner and the plainti ffs exec uted a nd o perate d in violat ion of state and locallaw s c an ever give rise to co nsti tut ionall y pr otect ed prop erty interest s. 14 We consider the issue

sua spon te beca use o f the “ traditi on al practi ce of . . . ref using t o decide consti tuti onal questi ons when the re cord di sc loses other gr ounds of decis ion, whether or no t they hav e bee n pro perly rais ed

. . . by the part

ies. ” Neese , 350 U.S.

14 The Tow nship ’s brief s, particu larly its replybrief, have touched on t he issue , but faile d to dev elop its arg um ent.10

at 78.

It is not

disput ed that

the Zoning Hearing Board found, fol lowing a hearing atte nded by the landowner, that he had violated local z onin g law s and the state stat utes regardi ng health, safet y, and real estate regu lation in installing th e mo bile hom es/trailers and th at the lan dow ner d id not appe al the d ecisio n. The B oard’s findings of violations are co nc lu si ve now

. The Township assert s that it had pl aced valid zoning res tri ctions at le ast a dec ade before any of the e leven mo bil e hom e/trailers were placed on t h e land at Elli ot Road, New Garden Tow nship, Pennsyl vania, which precl uded the pres ent resi dentia l use b y the pla intiffs. E ven if assuming that t

he owner had obtai ned a varianc e for res ident i al use of hi s land, which is not t he ca se here, resi dential use of his land w ould still have re qui red the landowner to prepare a land devel opment pl a n, obtain a con ditiona l use p ermit, sewage and other pe rmits requi red by the Tow nship ordinance s for anyres id entia l developmentbefore the owner could lease his property and the pl aintiffs c ould

oc cu py t he pr op er ty.
The Towns h ip solicito r testified in the Distri ct Court, and it is undi sputed, that before th e mo bi le hom es we r e placed on the property, the owner had not obtaine d the re quire d “ se wa ge p ermit f rom the Co unty He alth D epartm ent fo r that m obile home pa rk. ” He also te sti fied that inst allation of a sewage sy st em w ould interconnectwit

h the to wn sh ip sewer plant, as requi red. He furt her st ated that t he Township requir ed a use and occupancy perm it befo re the o wn er cou ld install the mobil e h om e/trailers o n his prop erty and r ent them to the plainti ffs. The To w nship sol icitor tes tifi ed also t hat the owner wa s requ ired to c om ply with the st ate a nd countyhealth and safety codes governing uses of elect rical an d construction anchoring. It i s undisputed that n eith er the l andowner nor the plaintiff-t enan ts have complied wit h an y o f th ose c odes. Nor have t hey appl ied for and obtain ed an y health a nd sa fety perm its necessary for the r esidential us e of the pr op er ty.
Rental operati on in Pen nsylvan ia is governed an d r eg ul ate d b y st ate , co un ty, and municipal laws. See Ke lly v. Borough of Sa yr e ville, N.J. , 107 F.3d 1073, 1077 (3d Cir. 1997) (“ State l aw creates the prop erty rights protected by the Fou rteenth Am endm ent.”). Becau se the m obile hom es/trailers were inst alle d and operat ed in viola tion of t

hose laws, their

use as rentalproperty byeithe r the l andowner or the plaint iff-tenants is als o unlawful. Thus, their rentalagreement i s li kewise unlawful and inv alid. See gene rally Puleo v. Zoni ng Hearing Bd. of Schu y lkill To wn ship , 722 A.2d 789, 791 n.4 (Pa. Commw. Ct. 1999) (quoti ng Black ’ s Law Dictionary 1536 ( 6th ed. 19 90) (a n “un lawf ul” ac t i s “act ing contrary t o, or i n defiance of t he law”; “unlawful” agreements a r e “ine ffe ctive in law , for the y involve acts which, thou gh n ot po sitively forb id den, ar e disappr oved by law and are t herefore not recogniz ed as grou nd o f lega l rights because they are against pub lic policy”)); 6 Willi ston on Contract s 24 (4th e d. 1995)11

([O]ne who has participated in a violat ion of th e l aw will not b e allow ed to a ssert in court any right b ased upo n or d irectly

conne cte d with the i llega l tr ansacti on.”) ( citi ng federal and state case law )); HighpointTow nhouses, Inc. v. Rapp , 423 A.2d 932, 935 (D.C. 1980) ( “[A] contrac t made in viol ation of

a lic ensing st atute that is desig ned to protec t the pu blic w ill

usua lly be con sidere d vo id an d unenforceabl e.”) (in ternal quo tati on marks omitt ed) (quoti ng T rui tt v. Miller , 407 A.2d 1 073, 107 9 (D.C . 1979)).

In Puleo , a new owner of a piece of real estate propert y , loc ated i n a “li mited indust rialzone,” had a disput e with a company as to the own er sh ip of two billboards that it had inst alle d. It was undisput ed that th e billboards const ituted lawful nonconforming use. The company ende d t he disput e by cut ting down the billboards with a chai nsaw; ther e was no questi on that i ts act

was knowing and intent ional. Several months lat er, “wit ho u t first securi ng a buildi ng pe rmi t,” the new

owner “rec ons truc ted th e bill boa rds.” Puleo , 722 A.2d at 790. The town denied the owner’s appl ication aft er the fact for a buildi ng per mit. The tow n’s zoning board also denied th e ow ner’s re ques t to continue the nonconforming us e of the bill boards because t he y were no t “in vo lu nt ar ily” damaged and no buildi ng per mit was secured within one y ear of their destruction wit

hin the meani ng of the local ordin ance . A P enns ylvania t rial

cou rt af firm ed th e bo ard ’s de cisio n.
O n fur ther ap peal, th e Co mm onw ealth Court, aspecial state ap pellate court, noted that the owner di d not challe ng e the val idit y of t he zoning ordinance , but ins tead a rgue d that its physi cal recon st ructi on of the bi llboards with in a year

of thei r destructi on should be deemed to be in c om plianc e with the ordinance and in continuati on o f the previous lawful nonconforming use. Id. at 791. The appellat e c ourt r eject ed the argu men t, concludi ng that t he ca se was analogous to “an i nstance whe re a landowner app lie[ d] for and secure[d ] a buildi ng perm it through mis repres entation

or fraud.” Id. (citing D’ Emi lio v. Bd. of Superv isors , 628 A.2d 1230 (Pa. Comm w. Ct. 199 3)). “It follo ws, th erefo re, that ifa person who app lies for and secures a buildi ng permit t

hrough fraudule nt means acquire s no right s in the structure, then a person who completely ignores the requir ement of securing a buildi ng perm it altoge theralso cannot

acq uire any

vested right in the structure .” Puleo , 722 A.2d at 791 (emph asis added ). The cou rt concluded that

the ow ner’s “ failure to

o bta in a buildi ng permit, theref ore, made th e effect of i ts re construction a nullity

. ” Id. at 79 2 (e mp has is ad ded ).
The violatio n in thi s case i s much

more flagra nt than in Puleo . The ow ner in Puleo was at least trying to re pl ac e the two destr oyed billboards th at had been prev iously lawfull y i nstal led. In thi s case, the eleven trailer/mob ile homes w ere inst alle d not to replace any previous lawful
use; th ey we re install ed withou t permissi on, and without the knowledge of the Township, in knowing vi olati on of12

stat e, count y, and local laws. 15 Under the holding of P uleo , a l andowner who

com pletely ignores the requirements of state and locallaws cannot ha ve acquir ed any vested right in th e renta l use o f his prop ert y. Simila rly , the unlawfu l occupati on of the re ntal prope rty b y the plaintiff -tenan ts has vest ed no proper t y right in t hem. To rule ot

herwise, as did t

he Distri ct Cou rt , would be t o fashion a prop erty right that is not re co gnized und er— and con trary to

— state law

. The tenan ts here do n ot, and cann ot, hav e greate r ri ght than t hat of the o wne r
w ith reg ard to th e ren tal pr ope rty. See , e.g. , Adam s O utdo or A dver tising v . City of East Lansi ng , 614 N.W.2d 634, 639 (Mich . 2000) (“It is fun dam ental p rope rty law that a

lessor can trans fer no greater rights than he possesses”; lessees’ interest rights are limited t o those possesse d by the lessor.); State v. Vaughan , 319 S.W.2d 349, 354 ( Te x . Civ. App. 1959 ) (“ [T]e nants who occupy the property have no greate r ri ght than the own ers .”); Sm ith

v. Wo olery , 1 37 N .E .2 d 63 2 ( Oh i o C t. App. 195 5); Wilmington Housi ng Auth. v. Nos. 500, 502, and 504 Kin g S t., and Nos. 503, 505, and 507 FrenchSt., Commercial Trust Co. , 273 A .2d 280, 28 1 (Del. Su per. Ct. 1970 ). 16

15 The landowner has not clai med mistake or

ignorance

.

16 The cases cited b y the tena nts w ith respect to their standing to apply for a zoning vari ance, t o bring a conde mnation acti on, or t o chall enge thei r evict ion because of heal th and li ving condit ions are inapposit e. Because t he all eged leasehold interes t in thi s case is legally

non -existing , this case is mate rially differe nt from thos e cases where l essees with lawf ully constitu ted lea seho ld interests c halle nge condemnation or zonin g ord inanc es that a ffec t their pro per ty intere sts. See , e.g. , Richman v. Philadelphia Zoning Bd. of Adjus tment , 137 A.2d 280, 283 (Pa. 1958) (a l ongterm c om merc ial lessee had s tandin g to apply fo r a use varian ce); Nicholson v. Zoning Bd. of Adjustment , 140 A.2d 604 , 606 ( Pa. 19 58) (sa me); M obil O il Corp. v. Zoni ng Hearing Bd. of Tred yffrin T ow nship , 515 A.2d 78, 79 (Pa. Com mw . Ct. 1986). For the same reasons, all the case law regardi ng whether te nants have standi ng to bri ng a condemnation acti on, alleging unlaw ful taking ef fected un der a zoning ordinance or rezoning, is also inap pos ite. See , e.g. , Millcre ek Township v. N.E.A. Cros s Co. , 620 A.2d 558, 561 (Pa. Commw . Ct. 1993) (com merc ial lessee s with rights to explo re natu ral gas and d evelo p w ells had stand ing to petition for de fa cto taking). Fina lly, this case is m aterially differe nt from such ca ses as i nvolving condemnation of property occupi ed by tenant s because of s erious and dangerous livin g co ndi tion s. See , e.g. , Grayden v. Rhodes , 345 F.3d 1225 ( 11th Cir. 2003) (invol ving condemnati on and eviction of tenan ts in an a partm ent co mp lex fo r their13

Where, as here, the ow n er has no vestedpro per ty right , i t w ould be

an omal ous to con clude that the tenan ts ha ve any ves ted proper ty right . Becau s e prop erty rights , inc luding leasehol d interest s, ar e c re ate d b y s tate law and the rentalarrangement

between the owner and the tenan ts is unlawful, the plainti ffs obtaine d no vested right i n the rent al pr op er ty. The ir rental a greem ent w ith the

owner gave them no v alid leaseh old inte re st recog nized and p rotecte d by state la w. Und er such circum stances, there can b e no valid due process c laim as a matter of law be cause there can be no depri vation of a non existen t right. 17 Ko vats , 749 F.2d at 104 7. Th e D istrict Co urt’s co nclus io n of d ue pr ocess vi olati ons predi cated on a

non exi stent

right is, the refor e, reve rsible

error.
II.
In fo otno te 9 of the m ajority opi ni on, th e maj or ity chara ct er iz es my analy sis above as one that “begins and ends with charging the pl ainti ffs with t he outcome of the z oning heari ng. . . .” The majorit y opi nes that

unless t he plai ntiff

s had an “opportunity

to appear

at the zonin g hea ring tha t foun d their p rope rty to b e in v iolat ion and ther efo re co uld

. . . def end aga in st

th atal le gatio n, ” my analysis “d oes n ot ade quate ly respon d to the legal chall enge implicit i n plaintiffs’ appeal. ” Although the majority’ s criti cism has some surfa ce appeal, it mi sses t he real i ssue here . Conceivabl y the plaint iffs maynot have become aware of their lan dlord ’s zon ing v iolation s until after the Township’s zoning enfor cement hearin g, but when and how the plainti ffs beca me a wa re of th e viola tions d oes n ot, and cannot, affect t

he reality of the land lord ’s zo nin g vi olati ons . M y analy sis i s grounded on the view that where the landown er’s rental use of h is protect ion because of seri ous and dangerous l iving condi tions ). I t was not disput ed that

the te nants i n Grayden had legal right

to li ve in the apartment complex. The t enants i n all t he cases cited a bov e had lawf ul tena ncy rights establish ed an d reco gnize d un der sta te laws.

17 Following t

he Township Zoning Hearing Board’s finding of violat ion again st the lan dow ner an d den ial of h is varianc e request , the owner file d an applic ation f

or conditional us e of the pro per ty as a tr ailer /mo bile h om e pa rk. Som e of the ren ters, as well as the ow ner, have ap pealed the z oning b oard’s subsequent denial of the conditional use applic ation to the st ate t rialcourt. That appeal has been stay ed pending the resolu tion of this app eal. B ecau se bo th the owner and the plai ntiff s have no property right ves ted and re cognized under the state law for their unlawful use of the prope rty , the ir j oint condi tional use appli cati on is now an opportunity for them to est ablis h their

lawful use for the fi rs t time

.14

property was i nvalid a nd void ab initio for viol ations of state and municipal laws, as establ ished bythe zoni ng enforcement he aring at

tended bythe landow ner, his tenants did n ot acquire any right in the same rental use as a matter of law. To suggest otherwise

wo uld b e to ac cord tenan ts grea ter rights than th ose p osses sed b y the land ow ner in contrave ntion of wel l est ablis hed landlord-tenant l aws.
To the e xtent that the majority’s criti cism embraces the plaintiffs’ argument that the Township’s zoni ng enforcement de cisi on cannot be val id and binding on t

he tenant s unless they parti cipat ed in the enforcement he aring, the majority , as wellas the tenants, has shown no legal aut

hority t o support t

hat argument. The majorit

y’ s own positi on has im plicitly rejected that arg um ent in light of it s holding that the plai ntiffs, with their de m inimis interest, are not entitled to a ctual notice of the zoni ng enfo rcem ent he aring b ecau se their tenancyinterest can be terminated at thirty -day s’ noti ce and the Township has given the m several months to vacate the pro per ty.
Admittedl y, my anal ysi s does not answer the ques tion of how or when the tenant s knew or should have known that their occupancy of the prope rtywas invali d because of the land own er’s zoning viol ations prior to the Tow nship’s negati ve determinati on. That i ssue, however, is not present in the t enants’ acti on here. The tenants’ argument, that they sho uld h ave b een g iven a dequ ate notice of a land use violat ion would be valid i f the Township brought an acti on again st them for the l and use viol ations , inst ead of the l andowner. Where, a s here, i t is not dis puted that the l andowner had convert ed his pr opertyto a resi dentia l rent al use i n violat ion of st ate, county , and munici pal la ws, when and how the tena nt s s hou ld hav e be come aware of their landowner’s unlawful use of his l and is i rrel evant t o the is sue of wh ether th ey have any valid prop erty right. 18 Their i nteres t in t he resi dentia l rentaluse of the pr opertyis atmost coexte nsiv e w ith th e lan dow ner ’s int eres t. Pennsyl vania l aw holds onlythe lando wn er, not h is tenan ts, respo nsible for any zoning viol ations that oc cur on hi s p ro pe rty. 19 Even if the tenants may

18 People who rent pr opertyusuall y run the risk that the osten sible ow ner o f it

m ay n ot ha ve go od titl e to th e p ro pe rty, that it may be subject to fo reclosure because of a mort gage default or other lien de linquenc y, or that a lease may be void because it vi olate s localzoning or state law s. Interes ted pa rties can avoid legal complications byobtaini ng information pert aining to the ti tle and lien s tatus of the prope rtyfrom the dockets of t

he countycourt hous e; inform ation c once rning the ap plicab le zoning la ws is genera lly avail able at

the cle rk ’s o ff ice fo r th e lo ca l m un ici pa lity.

19 Un der the Pen nsylvan ia Mu nicipalities Planning C ode (M PC) § 106 16.1, th e plain tiffs are not en titled to notice of a zoning enforcement heari ng15

not h ave b ecom e aw are of their landowner’s zoning viol ations untilafter the zoni ng enforcement he aring, the established l andown er’s violations, resulti ng in nullification of his rental use of his property , precludes the t enants’ due pro ces s cla im a s a m atter of la w. There cannot be a due process violat ion claim wh en the claim ant ha s no v alid prop erty interest.
For these reasons, I do not bel ieve that a ssuming that the tenant s have a valid pr opertyinterest does not res olve their co nstitution al claim . Un der w ellestabl ished cas e law, where, as here, the court is confronted with a due process clai m, the court must determine first whether there is a valid property interest pos sess ed b y the p laint iffs

. Ko vats , 749 F.2d at 1047 ( citi ng Logan , 455 U.S. at 428 ). I see n o reas on f or the c ourt to shirk its re spon sibility of m aking this initial de termination by making an

as su mptio n c ont

raryto st at e l aw.
Furtherm ore, the majority’s resolution of the t enants’ due process clai m, by reasoning t

hat the re is no deprivation of their pr operty i nterest because, at most, theyhave a month-t omonth lease hold interest , which requires only a thir

ty -day advance noti ce for termination under

stat e law, and t

hey have been given mo re than thirty days to

vaca te the p rope rty does n ot ade quate ly

res pond to th ei r du e pr oces s cl ai m. To the ext ent that such anal ysi s is cont ingent on the te nants havi ng a mere month-t omo nth lea seho ld intere st and an ad equa te post-de privation remedy, would the analy sis be s ustai nable i f the pl ainti ffs were year -to- year

tenant s, as some have claim ed? The state statu te, quo ted in footnote 6 of this concurri ng opinion, mandates no separate not ice of zoni ng violat ion heari ng to any type of ten ants (unless theyhave filed a written request with the muni cipal ity , or t he landowner has reques ted in wri ting to the municipal ity

that hi s tenant s recei ve such notice ), r egardle ss of the length or ty pe of te nan ts’ lea seh old inter ests.

III.
Min dful of the Suprem e Cou rt’s instruc tion tha t tradition ally the cou rts should re fuse to “de cide const itutional questi ons when the record discl oses othe r grounds of deci sion, whether or not they have been properly rais ed . . . by the parti es,” Neese , 3 50 U .S . at 7 8, we should not

engage in a cons tit

utionaldue again st the lan dow ner. T he statu te prov ides in r eleva nt part: (b) The enforcementnotice shall be se nt to [1] the owner of rec ord o f the par cel on which the viol ation ha s occu rr ed, t o [2] any person who has filed awritten request to recei ve enforcement notice s regardi ng that parce l, a nd to [3] any ot her pers on request ed in w riti ng by th e owner of record

.

53 Pa. Stat . Ann. § 10616

. 1 (emphases added ). The plaintiffs have not atta cked the fa cial co nstitution ality of the s tatute

.16

process an alysis when the rec ord discl oses bey ond disput e another ground for dis posal of t

he plai ntiff

s’ cl aim. That ground is t

hat the tenant s have no vest ed prop erty interest u nder state law . This approac h is especially appropriate w here the plainti ffs have not attac ked the faci al constituti onal ity of

the s tat e st atute, MPC § 10 616 .1. I would, t

herefore, revers e the Distri ct Court’ s judgment on t he ground that t he plai ntiff

s have shown no cogn izable prop erty interest u nder state law and eschew unnecessary federal due process analysi s.