• Plaintiff's Claims Against The Borough And Its Code Enforcer Under 42 U.S.C.S. For The Alleged Unlawful Search And Seizure Under The 4th Amendment And Procedural Due Process Under The 14th Amendment Was Dismissed.
  • October 4, 2012
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - King Of Prussia Office
  • Marcavage v. Borough of Lansdowne, et al., 20102 U.S. App. Lexis 16621 (3d Circuit)

    Under a borough ordinance, an owner of a property must obtain a rental license prior to renting any part of such property. To obtain a rental license, the borough requires either a safety inspection by its code enforcer or that the owner obtain a written certification form a licensed architect or engineer that the part of the property to be rented is in accordance with applicable laws. The owners' failure to comply with the license requirement resulted in a notice to comply, which they ignored. The borough initiated state proceedings to prevent the renting of this property. The plaintiff presented four arguments on appeal. First, he asserted that the ordinance is unconstitutional on its face because it requires citizens to consent to a warrantless search of their residences. Second, he alleged that the ordinance, on its face, violates the Fourteenth Amendment by allowing borough officials to interfere with a landlord's property interests if a landlord does not consent to a search pf their property in the process of obtaining rental license. Third, the plaintiff made a Fourth Amendment challenge to the ordinance, arguing that the borough seized his property because of his refusal to allow the inspection or search of his property. Finally, the plaintiff asserted that borough officials violated his procedural and substantive due process rights by allegedly evicting him from his residence and prohibiting the rental of his property.

    The court ruled that the borough ordinance is not invalid on its face as it does not pose a threat to an owner's property rights. The court reasons that the ordinance does not carry any criminal penalties based upon an owner's refusal to allow an inspection and it does not provide the city employee discretion to choose if and when to conduct an inspection. Moreover, the ordinance provides a property owner with an opportunity to select a licensed architect or engineer of his choosing to conduct the inspection and submit a report.

    In addition, the court ruled that the borough ordinance, on its face, did not violate the plaintiff's Fourteenth Amendment rights. The plaintiff's ability to reside on the property as the owner is unaffected by the ordinance, and 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.

    The plaintiff argued that the borough was in violation of the Fourth Amendment when it evicted him and his tenants from their homes based on his refusal to consent to a warrantless search when the borough posted a notice on the plaintiff's properties stating that the structure had been declared an unlawful rental property and that it would be unlawful for the plaintiff to collect rent or allow use or occupancy of the building until he obtained a rental license. The court held that, as the notice served on the plaintiff providing notice that he was not in compliance with the ordinance as a landlord made no mention that he would be removed from his home, nor did it order him to vacate the premises, his claim under the Fourth Amendment failed as a matter of law.

    Lastly, the plaintiff argued that the borough violated his Fourteenth Amendment rights to procedural and substantive due process by abruptly evicting him from his home and precluding him from collecting rent. When an individual brings suit under 42 U.S.C. ยง 1983 for a state actor's alleged failure to provide procedural due process, the court considers "(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." The court held that the borough did not seize the plaintiff's property when it posted the notice and, as such, the plaintiff was never denied a right to inhabit his property. Therefore, the court found no deprivation of his property interests and, thus, no deprivation of his procedural due process.