IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN ... · Philadelphia from the unconstitutional...

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HAPCO : 2101 Chestnut Street : Suite 1615 : Philadelphia, PA 19103 : CASE NO. 2:20-cv-3300

: Plaintiff, :

: v. :

: CITY OF PHILADELPHIA : c/o Law Department : 1515 Arch Street : Philadelphia, PA 19102 :

: and :

: THE HONORABLE JAMES KENNEY : City Hall : Office 215 : Philadelphia, PA 19107, :

: Defendants. :

:

VERIFIED COMPLAINT

Plaintiff, HAPCO (“HAPCO”), on behalf of its members (hereinafter HAPCO and its

members referred to as “Plaintiffs”), by and through their undersigned counsel, allege the

following causes of action challenging the Emergency Housing Protection Act, which is

comprised of five (5) Bills (attached hereto as Exhibits A-E) passed by Philadelphia City Council

on June 18, 2020 and signed into law by The Honorable James Kenney, Mayor of Philadelphia,

on July 1, 2020 (the “Act”):

Case 2:20-cv-03300 Document 1 Filed 07/06/20 Page 1 of 30

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INTRODUCTION

1. This Verified Complaint is being filed by Plaintiffs to protect their rights and the

rights of all property owners who rent their properties to tenants (“landlords”) in the City of

Philadelphia from the unconstitutional legislation promulgated by Defendants.

2. Defendants passed the Act in a purported effort to address concerns from small

business and residential tenants in Philadelphia arising from the COVID-19 epidemic.

3. The Act, however, places all of the financial burden for a perceived rental crisis in

Philadelphia on the City’s landlords.

4. Significantly, the Act unilaterally rewrites every residential and small business

lease in Philadelphia to add terms and make void existing terms that were previously negotiated

between landlord and tenant. Landlords are forced to accept these terms, which include:

x requiring that landlords participate in an Eviction Diversion Program before seeking to reclaim possession of their properties from tenants who fail to pay rent. Exhibit A, Bill 200294 at 2(a)(i).

x voiding lease terms for any late fees or interest due on back rent until May 31, 2021, thus allowing tenants to remain in properties without paying rent that is due and owing. Exhibit C, Bill 200302 at *(a).

x prohibiting landlords from seeking to evict tenants for failing to pay rent for a period lasting up to May 31, 2021, unless certain limited conditions are satisfied. Exhibit B, Bill 200295 at (2); Exhibit E, Bill 200305 at *(e).

x compelling landlords to enter into “hardship repayment agreements” to allow tenants to pay – interest and penalty free – by May 31, 2021 any past due rent accumulated from March 2020 to August 31, 2020. Exhibit E, Bill 200305 at *(a)(i)-(iii).

5. While the Act claims to address hardships arising from the COVID-19 epidemic,

its findings make clear that Philadelphia renters were experiencing financial difficulties well

before then: “More than 300,000 of Philadelphia’s renters struggled to afford rent before the

COVID-19 pandemic. In 2017, 53.4% of Philadelphia renters were cost-burdened, meaning they


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paid more than 30% of their income on rent, and 31% of Philadelphia renters were severely cost-

burdened, meaning they spent more than 50% of their income on rent.” Exhibit A, Bill No.

200294 at ¶ 12; Exhibit B, Bill No. 200295 at ¶ 12; Exhibit C, Bill No. 200302 ¶ 12; Exhibit D,

Bill No. 200304 ¶ 12; and Exhibit E, Bill No. 200305 ¶ 12.

6. The Act violates the United States and Pennsylvania Constitutions in significant

and profound ways, including violating the Contracts Clauses of the United States and

Pennsylvania Constitutions, the Takings Clauses of the United States and Pennsylvania

Constitutions, and the Due Process provisions of the United States and Pennsylvania

Constitutions. In addition, the Act is preempted by the Pennsylvania Landlord and Tenant Act of

1951 (the “Landlord-Tenant Act”).

7. Accordingly, Plaintiffs bring this action pursuant to (a) 42 U.S.C. § 1983 for

violations of rights guaranteed by the Fifth Amendment, Fourteenth Amendment and Article I,

Section 10 of the United States Constitution, and (b) the Pennsylvania Declaratory Judgments

Act for violations of rights guaranteed under Article I, Sections 1, 10 and 17 of the Pennsylvania

Constitution.

8. The Act purports to address hardships faced by Philadelphia renters as a result of

the COVID-19 epidemic, of which Plaintiffs are sympathetic. Indeed, Plaintiffs rely upon small

business and residential renters for their lifeblood – when they struggle, so do landlords.

9. But, while some Philadelphia renters undoubtedly face struggles as a result of the

COVID-19 epidemic, Defendants cannot violate the constitutional rights of landlords to address

those issues. Defendants are not permitted to use the COVID-19 epidemic to address the

historical struggles faced by renters that predate the epidemic, or to force Philadelphia’s


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landlords to shoulder all of the financial burden to cure Defendants’ past failures to address those

issues, or for current issues related to the COVID-19 epidemic.

10. Plaintiffs seek through this action, among other relief, a declaration that the Act

is: (1) unconstitutional on its face for violating the United States and Pennsylvania Constitutions;

(2) unconstitutional on its face for depriving Plaintiffs of their due process rights under the

United States and Pennsylvania Constitutions; and (3) pre-empted by the Landlord-Tenant Act.

Plaintiffs seek injunctive relief to enjoin Defendants from enforcing the Act, attorney’s fees and

costs pursuant to 42 U.S.C. § 1988 for the work performed by counsel in this litigation, and for

such other and further relief as the Court deems just and appropriate.

JURISDICTION AND VENUE

11. This Court has jurisdiction over Plaintiffs’ claims asserted under federal law

pursuant to 28 U.S.C. §§ 1331 and 1343.

12. This Court has jurisdiction over Plaintiffs’ claims asserted under the Constitution

and laws of the Commonwealth of Pennsylvania pursuant to 28 U.S.C. § 1367.

13. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(1) and (2) because

Defendants are located within this district and a substantial part of the events giving rise to

Plaintiffs’ claims occurred in this district.

THE PARTIES

14. HAPCO at all relevant times, is and was a Pennsylvania non-profit company

organized and authorized to do business in the Commonwealth of Pennsylvania, with an address

of 2101 Chestnut Street, Suite 1615, Philadelphia, PA 19103. HAPCO is comprised of nearly

1,900 members that own or manage more than 10,000 residential and commercial properties in

Philadelphia, Pennsylvania. Among other things, HAPCO serves as an advocate for its members


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at the local, county, state and federal levels of government. In addition, HAPCO provides

education and training to its members concerning, among other subjects, laws that impact

Philadelphia landlords and the eviction process in Philadelphia.

15. HAPCO members own and/or manage residential and commercial properties

throughout Philadelphia. Consequently, they are directly impacted by the Act and would have

standing to challenge the Act in their own right. The interests at stake in this litigation are

germane to HAPCO’s purpose, and neither the claims asserted herein nor the relief requested

requires the participation of individual HAPCO members in this lawsuit. Thus, HAPCO has

standing to assert the claims set forth herein.

16. Defendant City of Philadelphia (the “City”) is a First Class City of the

Commonwealth of Pennsylvania with an address in care of Law Department, 1515 Arch Street,

Philadelphia, PA 19107.

17. Defendant The Honorable James Kenney is the Mayor of Philadelphia with an

address of City Hall, Room 215, Philadelphia, PA 19107. He is made a party to this action in his

official capacity to enjoin the enforcement of the Act.

FACTUAL ALLEGATIONS

18. The COVID-19 epidemic has wrought serious and unprecedented economic

damage throughout the United States. It has resulted in the loss of more than 100,000 American

lives and changed, almost overnight, the way in which we live. Much work will need be done by

the public and private sectors in the coming days, weeks, months and years to recover from this

disaster.

19. In response to the outbreak, Pennsylvania Governor Tom Wolf issued a

declaration of emergency on March 6, 2020.


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20. In addition, Governor Wolf issued an Executive Order on March 7, 2020 that

suspended all evictions and foreclosures in the Commonwealth until July 10, 2020.

21. The Pennsylvania Supreme Court, which has authority over the courts of the

Commonwealth, previously closed court eviction proceedings until May 11, 2020.

22. On March 22, 2020, Governor Wolf amended his Executive Order by specifying

that it only applied to evictions and foreclosures due to a failure to pay rent or because a tenant

has overstayed their lease.

23. On March 22, 2020, Mayor Kenney issued a Stay-at-Home Order, effective

March 23, 2020.

24. Against this backdrop, and with the Executive Order allowing evictions to

proceed after July 10, 2020, Defendants passed the Act in a purported effort to assist

Philadelphia renters who are facing eviction for failing to pay rent as a result of the COVID-19

epidemic.

25. The Act’s five Bills amend Chapter 9-800 of the Philadelphia Code, which

governs landlords and tenants in the City.

26. Each of the Bills contain the same legislative findings, including the following

that relate not to the COVID-19 epidemic, but to Philadelphia’s historical problems facing

renters:

Philadelphia is also one of the poorest cities in America, where 24.5% or 377,116 Philadelphia residents, live in poverty.

Philadelphia has a high population of renters. The number of renters in Philadelphia has rapidly increased in recent years, growing from 40.7% in 2000 to almost half of the population today.

Before the pandemic, Philadelphia had the 4th highest eviction rate among large cities, with 1 out of every 14 renters facing eviction each year.


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More than 300,000 of Philadelphia’s renters struggled to afford rent before the COVID-19 pandemic. In 2017, 53.4% of Philadelphia renters were cost-burdened, meaning they paid more than 30% of their income on rent, and 31% of Philadelphia renters were severely cost-burdened, meaning they spent more than 50% of their income on rent.

To address the city’s affordable housing crisis, Philadelphia City Council established a Tenant Legal Defense Fund in 2017, an anti-eviction task force in 2017, and right to counsel in 2019 to address evictions.

Exhibits A-E at ¶¶ 9-13.

27. The Bills go on to speculate that the “number of Philadelphians struggling to pay

rent has undoubtedly increased since the onset of the COVID-19 pandemic … and over 120,000

Philadelphians have filed for unemployment since March 2020, exacerbating already-existing

financial burdens.” Id. at ¶ 14. Thus, Philadelphia City Council, in passing the Act, surmised

that Philadelphia renters will struggle to pay rent in the future due to the COVID-19 epidemic.

Id. at ¶ 14.

28. But the Act’s findings regarding the financial impact renters will face as a result

of COVID-19 is purely speculative. For example, if any of the “over 120,000 Philadelphians”

who filed for unemployment earned less than $66,000 a year (highly likely where, as the

legislative findings note, nearly 25% of the City lives in poverty), they could be making more

money now through unemployment compensation and the CARES Act supplement for

unemployment. Moreover, the Act’s findings do not account for medical professionals,

emergency workers and other similarly situated individuals who are making more money in

overtime now due to the urgent need for their services.

29. While the Act is silent on how City Council came up with its legislative findings

on the supposed impact of COVID-19 on renters, the Act provides absolutely no way for

landlords to challenge a tenant’s claim of financial hardship. To the contrary, a tenant can claim


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anything they want and the landlord is forced to accept the representation. Thus, the Act requires

landlords to take City Council’s findings and renters’ hardship claims on good faith.

30. The Bills further note that once the Executive Order is lifted, “there is an

estimated backlog of 5,000 eviction cases in Philadelphia Municipal Court.” Id. at ¶ 15.

Significantly, those evictions may not proceed during the COVID-19 emergency period (see fn.

3 infra.) even though they were instituted before the COVID-19 emergency period began. That

is, the reasons for those evictions have absolutely nothing to do with anything related to COVID-

19.1

31. The legislative findings conclude by noting that, the “COVID-19 pandemic’s

negative impact on the lives and incomes of Philadelphians, and City revenues, has exacerbated

the pre-existing housing crisis and created a housing emergency in the City of Philadelphia. The

measures identified [in the Act] are necessary to ensure residents are able to remain in their

homes, and small businesses are able to stay in business.” Id. at ¶ 20 (emphasis added).

32. Plaintiffs do not dispute the significant impact the COVID-19 epidemic has had,

and will continue to have, on the economy, including the ability of some residential and small

business tenants to pay rent. However, the manner in which Defendants have sought to address

these real issues violates Plaintiffs’ rights and foists upon Philadelphia’s landlords all of the

financial burden related to Philadelphia renters.

33. Specifically, the Act amends Chapter 9-800 of the Philadelphia Code to provide

the following “COVID-19 Emergency Housing Protections”:

1 Given the improper cessation of evictions under the Act, an additional backlog of eviction cases will result that will have a disastrous impact on a landlord’s ability to seek repossession of their properties. Indeed, it is not a stretch to believe landlords will have to wait more than a year just to have an eviction proceeding come before a judge.


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a. the creation of an Eviction Diversion Program for residential tenants that requires

a “conciliation conference between landlord and tenant that has experienced a COVID-19

financial hardship to mediate an agreement for asserted residential lease violations.”2 Exhibit A,

Bill 200294 at 2(a)(i). A landlord is prohibited from taking “steps in furtherance of recovering

possession of a residential property occupied by a tenant who suffered a COVID-19 financial

hardship other than providing a notice required under this [section] without first participating in a

conciliation conference ….”3 Id. at 2(b). The requirement to participate in the Eviction

Diversion Program, notwithstanding that it is not contained in any lease agreement between

landlord and tenant, is an obligation that is being compelled by Defendants. The Act provides no

way for landlords to challenge whether a tenant has, in fact, suffered a COVID-19 financial

hardship, thus depriving landlords of any way to confirm whether a tenant has a true hardship or

not.

b. making it unlawful during the COVID-19 emergency period (i.e., until August 31,

2020)4 to evict a residential tenant in Philadelphia except to “prevent an imminent threat of harm

by the person being evicted, including physical harm or harassment ….” Exhibit B, Bill 200295

at (2)(*Residential Eviction Relief). Under this provision, “it shall be unlawful for a landlord to

2 The Act defines “COVID-19 financial hardship” as a “tenant’s or tenant’s household member’s loss of income due to any one or more” of several criteria. Exhibit A, Bill 200294 at (1)(c)(i)-(x). Significantly, the “loss of income” for residential tenants is provided through a “Certification of Hardship” without the need for any supporting documentation to demonstrate an actual “loss of income.” Id. at (1)(a).

3 Two exceptions apply to this requirement: (1) the eviction is “necessary to cease or prevent an imminent threat of harm by the person being evicted”; or (2) a date for the conciliation conference cannot be provided within thirty days of the landlord’s initial request – but the landlord must still participate in a conciliation conference when it becomes available (if prior to an eviction judgment being issued). Exhibit A, Bill 200294 at 2(b)(i)-(ii).

4 The Act defines the “COVID-19 emergency period” as beginning on the date the Act becomes law and ending on August 31, 2020. See, e.g., Exhibit B, Bill 200295 at (1)(b).


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take any steps in furtherance of recovering possession of a residential premises rented by a tenant

on any other basis” even based upon a preexisting lease between landlord and tenant. Id.

c. making it unlawful during the COVID-19 emergency period (i.e., until August 31,

2020) to evict a small business tenant5 that provides a “certification of hardship”6 except to

“prevent an imminent threat of harm by the person being evicted, including physical harm or

harassment ….” Id. at (*Commercial Eviction Relief). Under this provision, “it shall be

unlawful for a landlord to take any steps in furtherance of recovering possession of a commercial

premises rented by such small business on any other basis” even based on a preexisting lease

between landlord and tenant. Id. The Act provides no way for landlords to challenge whether a

small business tenant has, in fact, suffered a financial hardship, thus depriving landlords of any

way to confirm whether a tenant has a true hardship or not.

d. making it unlawful from the “retroactive emergency period” (i.e., March 1, 2020)7

until nine months after the COVID-19 emergency period (i.e., until May 31, 2021) for “any

landlord to charge or accept the payment of late fees, interest on back rent, or similar charges as

the result of delinquent payment of rent with respect to a residential premises” where a

residential tenant claims a COVID-19 financial hardship. Exhibit C, Bill 200302 at

*(a)(Temporary Waiver of Certain Fees). This prohibition applies notwithstanding lease terms

5 The Act defines “small business” as one that employs fewer than 100 total employees whether within the City of Philadelphia or elsewhere. Exhibit B, Bill 200295 at (1)(f).

6 The Act defines “small business financial hardship” as a small business’s “documented loss of income” due to one or more of several consequences of the COVID-19 epidemic. Exhibit B, Bill 200295 at (1)(g). However, the Act does not define or explain how to document a loss of income.

7 The Act defines the “retroactive emergency period” as the “period beginning on March 1, 2020” even though Governor Wolf did not issue an emergency declaration until March 6, 2020.


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to the contrary – indeed, any such lease terms “shall be void and non-enforceable” pursuant to

the Act. Id.

e. forcing landlords to enter into “hardship repayment agreements” with any

residential tenant that has suffered a COVID-19 financial hardship (fn. 1, supra.) during the

“retroactive emergency period” (i.e., March 1, 2020) and has failed to pay rent at any point

during the COVID-19 emergency period (i.e., until August 31, 2020) upon the provision by the

tenant of a certification of hardship and, at a minimum, a certification of a loss of income or

increased expenses. Exhibit E, Bill 200305 at *(a)(i)-(ii). Notwithstanding any lease entered

into prior to the Act, the “hardship repayment agreement” requires landlords to allow residential

tenants until May 31, 2021 to pay – interest free and without any penalty – any past due rent. Id.

at (b)(i)-(iii).

f. making it unlawful until nine months after the COVID-19 emergency period (i.e.,

until May 31, 2021) for a “landlord to take any steps in furtherance of recovering possession of a

residential premises occupied by a tenant or a guest of a tenant, on any basis other than a legal

basis for eviction.”8 Id. at (e). That is, a landlord may not seek to take possession of property

until May 31, 2021 other than to prevent an imminent threat of harm by the person being evicted,

including physical harm or harassment, or in certain limited circumstances where a tenant,

8 The conditional “legal bas[es]” for eviction places the onus on landlords to first notify tenants of their ability to enter a “hardship repayment agreement” if tenants have not already exercised that unconditional right. See Exhibit E, Bill 200305(d)(i). If a landlord notifies a tenant of their right to enter a “hardship repayment agreement,” and the tenant neglects to enter one within 30-days of receiving notice, a landlord may only evict a tenant if the tenant fails to “pay the ongoing monthly rate of rent as it is normally due after the end of the COVID-19 emergency period.” Id. at (d)(i)-(ii). If a tenant has previously entered a hardship repayment agreement, a landlord may only evict a tenant if the tenant continues in their failure to pay their monthly rent, or if they are “in arrears in amount equal to four or more monthly payments required under clause (b)(ii)(2) of paragraph (b).” Id. (d)(iii) (emphasis added). In either case, the landlord cannot charge interest or late fees during the nine-month period following the end of the COVID-19 emergency period. Id. at (b)(i)-(iii).


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despite additional notice from a landlord, continues to be unable to meet their rent obligations,

even after the COVID-19 emergency period has ended.9

34. Plaintiffs, as well as other landlords throughout the City, are still required to pay

their mortgages, property taxes and other expenses related to their leased properties. There is no

similar COVID-19 financial hardship provision in the Act for landlords to obviate the

requirement to pay their lenders or their City tax bills. Nor is there any Diversion Program or

hardship repayment agreements available to landlords who find themselves in financial difficulty

because the Act allows their tenants not to pay rent when it is due.

35. Landlords depend upon rental payments to meet their obligations – including

those to lenders, for property taxes and for maintenance of the property. Without rental

payments – even for a short period of time – owning a property is commercially impracticable.

36. A landlord’s recourse when a tenant fails to pay rent during a lease term or holds

over after the expiration of that lease is to seek possession of their property from the courts.

Defendants now prohibit that – for up to a year.

37. Most residential leases are for a period of one year. The Act essentially allows

those leases to be extended by prohibiting the eviction of tenants who holdover, notwithstanding

that the owners of the property never agreed to such an extension. See Exhibit A, Bill 200294 at

2; Exhibit B, Bill 200295 at (2); Exhibit E, Bill 200305 at *(e).

38. Notwithstanding the expressed good intention of Defendants under the current

circumstances, “individual rights secured by the Constitution do not disappear during a public

health crisis.” In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020). The fundamental and unalienable

9 This provision appears to conflict with Bill 200295 (Exhibit A), which allows for evictions following the COVID-19 emergency period (i.e., after August 31, 2020). Bill 200305 is unclear as to whether the nine-month extension for evictions is based on a tenant entering into a hardship repayment agreement, which represents another failing of the Act.


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rights impacted by the Act are, by their very nature, essential. Defendants’ actions in passing

and enforcing the Act will violate those essential rights.

39. Plaintiffs desire to protect their properties and their rights therein, while at the

same time providing reasonable opportunity for their tenants to maintain their tenancies. To do

so, landlords should not be compelled to enter into contractual agreements mandated by

Defendants, give up rights they negotiated in preexisting leases, or surrender their rights to seek

redress in a court of law.

40. Without immediate and permanent relief from the Act by this Court, Plaintiffs

will suffer immediate and irreparable injuries.

COUNT I (against all Defendants)

42 U.S.C. § 1983 – Violation of the Contracts Clause of United States Constitution (U.S. Const. Art. I, § 10)

41. Plaintiffs incorporate herein by reference each and every allegation contained in

the preceding paragraphs of this Complaint as though fully set forth herein.

42. Article I, Section 10 of the United States Constitution provides: “No State shall

… pass any … Law impairing the Obligation of Contracts” (the “Federal Contracts Clause”).

43. The Federal Contracts Clause applies to cities and it prohibits them from enacting

legislation that substantially impairs existing, lawful contracts.

44. Violations of the Federal Contracts Clause are actionable under 42 U.S.C. § 1983.

Southern Calif. Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (“The right of a

party not to have a State, or a political subdivision thereof, impair its obligations to contract is a

right secured by the first article of the United States Constitution. A deprivation of that right

therefore give rise to a cause of action under section 1983.”); Watters v. Bd. of School Directors

of City of Scranton, 400 F.Supp.3d 117, 126 (M.D.Pa. 2019) (adopting decision in Southern


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Calif. Gas Co. that a violation of the Federal Contracts Clause gives rise to a cause of action

under 42 U.S.C. § 1983).

45. In determining whether legislation violates the Federal Contracts Clause, courts

consider whether: (a) there has been a substantial impairment of contractual rights; (b) the

legislation impairing the contract serves a significant and legitimate public purpose; and (c) the

adjustment of a contract was reasonable and necessary to serve the legislation’s public purpose.

See, e.g., United Steel Paper and Forestry Rubber Manufacturing Allied Industrial and Service

Workers Int’l. Union AFL-CIO-CLC v. Gov’t. of the Virgin Islands, 842 F.3d 201, 210 (3d Cir.

2016).

46. The Act substantially impairs Plaintiffs’ contractual rights by, among other

things: (a) eliminating the ability to seek eviction of tenants who fail to pay rent, breach

conditions of the lease, or holdover until August 31, 2020 (at the earliest) or May 31, 2021 (at

the latest); (b) preventing the imposition of late fees and interest on past due rent; (c) requiring

participation in an Eviction Diversion Program that is not contained in any preexisting lease; and

(d) compelling the acceptance of hardship repayment agreements on terms that are mandated by

the Act. See Exhibits A-E.

47. The Act further requires landlords to provide notice to tenants of their right to

enter into a hardship repayment agreement as well as notice of the Eviction Diversion Program,

both of which delay a landlord’s ability to begin eviction proceedings.

48. Indeed, the Act impacts the very purpose of the bargain landlords and tenants

strike: landlords agree to rent property to tenants and no one else in exchange for tenants

agreeing to pay rent, including consequences such as late fees and interest if tenants fail to do so.


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The Act prevents landlords from exercising their contractual rights when that bargain is breached

by a tenant.

49. The purported purpose of the Act is to address the suspected temporary and

emergency financial conditions brought about by the COVID-19 epidemic. That purpose is not

sufficient to support the substantial impairment of Plaintiffs’ contractual rights.10

50. Further, the Act is not reasonable and necessary to serve its purported purpose.

Whether the purpose of the Act was to address COVID-19 specific or historical rental issues in

Philadelphia, requiring landlords to bear all of the financial burden is not reasonable or

necessary. Indeed, there are myriad ways in which to address the issues sought to be remedied

by the Act, including through the CARES Act, stipends or property tax relief from the City, or

grants from the Commonwealth.

51. The Act unilaterally rewrites all leases existing in the City before its

implementation to make void and unenforceable certain terms landlords and tenants negotiated,

prevents landlords from exercising rights negotiated (such as the imposition of late fees and

interest), and forces landlords to accept new terms (i.e., Eviction Diversion Program and

hardship repayment agreements). See Exhibit A, Bill 200294 at 2(a)(i); Exhibit C, Bill 200302 at

*(a); Exhibit E, Bill 200305 at *(a)(i)-(ii).

52. Indeed, landlords are expressly prohibited from taking any steps to recover

possession of their properties for nearly a year even if the tenant fails to pay rent, unless certain

limited conditions are met, including threat of imminent harm. See Exhibit A, Bill 200294 at 2;

Exhibit B, Bill 200295 at (2); Exhibit E, Bill 200305 at *(e).

10 As set forth above, the legislative findings concerning the financial impact of the COVID-19 epidemic on renters are purely speculative and, at least on the face of the Act, are not supported by any data. In fact, the purpose of the Act appears to be to remedy historical financial issues facing renters that City Council speculates will be exacerbated by COVID-19.


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53. Even if there was a legitimate purpose for the Act, it significantly impairs the

rights of landlords by obliterating the benefit of the bargain for the leases they entered into prior

to the Act.

54. For these reasons, the Act violates the Federal Contracts Clause.

55. In promulgating the Act and applying it to Plaintiffs, as well as all landlords in

Philadelphia, Defendants have acted under color of statute, ordinance, regulation and/or policy of

the municipality. Defendants’ conduct has deprived Plaintiffs of the rights, privileges and

immunities secured by the United States Constitution and/or the laws of the United States to

which they are and were legitimately entitled.

56. Plaintiffs have no adequate remedy at law to prevent or redress the irreparable

injuries alleged herein.

57. Unless Defendants are enjoined and restrained from enforcing or threatening to

enforce the Act, Plaintiffs will be irreparably injured, as they will be deprived of their rights

under the United States Constitution, and will continue to suffer substantial loss of rents, profits,

possession of their property, and good will, the nature and extent of which will be extremely

difficult or impossible to ascertain.

58. As Defendants’ constitutional violations are ongoing, Plaintiffs are entitled to

immediate injunctive relief.

59. Because Defendants’ actions required Plaintiffs to retain counsel and incur

attorney’s fees and costs to bring this action, Plaintiffs are entitled to the recovery of those fees

and costs pursuant to, inter alia, 42 U.S.C. § 1983 et seq. and 42 U.S.C. § 1988(b).


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COUNT II (against all Defendants)

Declaratory Judgment – Violation of Contracts Clause of Pennsylvania Constitution (Pa. Const. Art. I, § 17)



61. Article I, Section 17 of the Pennsylvania Constitution provides that, “No ex post

facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of

special privileges or immunities, shall be passed” (the “PA Contracts Clause”).

62. Like the Federal Contracts Clause, the PA Contracts Clause “protects contracts

freely arrived at by the parties to them from subsequent legislative impairment or abridgement.”

First Nat.’l Bank of Pa. v. Flanagan, 528 A.2d 134, 137 (Pa. 1987).

63. “Any law which enlarges, abridges, or in any manner changes the intention of the

parties as evidenced by their contract, imposing conditions not expressed therein or dispensing

with the performance of those which are a part of it, impairs its obligation, whether the law

affects the validity, construction, duration or enforcement of the contract … the amount of

impairment of the substantive obligation of a contract is immaterial. Any deviation from its

terms, however slight, falls within the meaning of the Constitution.” Id. (citations omitted).

64. Similar to the test applied under the Federal Contracts Clause, the test applied for

violations of the PA Contracts Clause requires a court to examine three elements: (1) whether

there is a contractual relationship; (2) whether a change in law impairs that contractual

relationship; and (3) whether the impairment is substantial. See, e.g., Assoc. of Settlement

Companies v. Dept. of Banking, 977 A.2d 1257, 1277 (Pa. Cmwlth. 2009) (citing General

Motors Corp. v. Romein, 53 U.S. 181, 186 (1992)).


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65. As set forth above, and incorporated herein, the Act substantially impairs

Plaintiffs’ contractual rights without the requisite significant and public purpose that is closely

tied to the legislation.

66. Plaintiffs seek a declaration from this Court that the Act violates the PA Contracts

Clause, injunctive relief to prevent enforcement of the Act, and other and further relief as the

Court deems just and appropriate.

COUNT III (against all Defendants)

42 U.S.C. § 1983 – Violation of the Fifth Amendment to the United States Constitution



68. The Fifth Amendment to the United States Constitution provides that private

property shall not “be taken for public use, without just compensation.” U.S. Const., Amend. V

(the “Federal Takings Clause”).

69. The purpose of the Federal Takings Clause is to “bar[ ] Government from forcing

some people alone to bear the public burdens which, in all fairness and justice, should be borne

by the public as a whole.” Lingle v. Chevron Corp., 544 U.S. 528, 537 (2005) (quoting

Armstrong v. United States, 364 U.S. 40, 49 (1960)).

70. To establish a claim under the Federal Takings Clause, a plaintiff must prove two

things: (1) that they had a property interest for purposes of the Fifth Amendment; and (2) that the

government’s actions amounted to a compensable taking of that property interest.

71. The Act violates the Federal Takings Clause by forcing landlords, like Plaintiffs,

to accept the occupation of their properties by tenants who have not paid rent during the

occupancy. See Exhibit A, Bill 200294 at 2; Exhibit B, Bill 200295 at (2); Exhibit E, Bill


19

200305 at *(e). Landlords are expressly prohibited from seeking to obtain possession of their

properties for the failure to pay rent through August 31, 2020 (at the earliest) and May 30, 2021

(at the latest), thus allowing tenants to remain without the contractually agreed upon requirement

that they pay rent.

72. While the Act purports to allow owners to recover rent at some later date, the Act

does nothing to protect landlords from their obligations to pay mortgages, property taxes and

other expenses.

73. The Act has thus eliminated Plaintiffs’ fundamental property rights to exclude

nonpaying tenants from their properties.

74. The economic impact of the Act is severe and ruinous to Plaintiffs, as well as

other landlords in the City, who are entitled by valid and binding lease agreements to receive rent

from their tenants in exchange for allowing them to reside at the properties. Plaintiffs, as well as

other landlords in the City, cannot sustain their properties by providing them to tenants rent-free.

75. The Act further undermines the “reasonable investment-backed expectations” of

landlords who purchased and/or financed properties with the reasonable expectation that they

would collect rent or else have recourse to recover the property. See Lingle, 544 U.S. at 537

(citations omitted).

76. And while the Act allows landlords to theoretically recover unpaid rent, it does so

without any interest or late fees notwithstanding leases that provided for the same. It further

forces landlords to enter into “hardship repayment agreements” that amount to interest free loans

to unpaying tenants. Exhibit E, Bill 200305 at *(a)(i)-(ii). While the tenant lives rent-free, the

landlord still is obligated to pay mortgages, property taxes and other expenses related to the

property.


20

77. The practical effect of the Act amounts to a taking of property by effectively

allowing tenants to occupy properties free of charge and requires landlords – like Plaintiffs – to

allow this for upwards to almost a year. Exhibit E, Bill 200305 at (e); Exhibit A, Bill 200294 at

2(b); Exhibit B, Bill 200295 at (2).

78. Consequently, the Act has resulted in a complete and total regulatory taking of

property from Plaintiffs and other landlords in Philadelphia without just compensation in

violation of the Federal Takings Clause.

79. Plaintiffs have no adequate remedy at law for the harm caused by the Act. Unless

Defendants are enjoined and restrained from enforcing or threatening to enforce the Act,

Plaintiffs will be irreparably injured, as they will be deprived of their rights under the United

States Constitution, and will continue to suffer substantial loss of rents, profits, and good will,

the nature and extent of which will be extremely difficult or impossible to ascertain.






COUNT IV (against all Defendants)

Declaratory Judgment – Violation of Article I, Section 10 of Pennsylvania Constitution



83. The Pennsylvania Constitution provides, in relevant part, that “[n]o person shall,

for the same offense, be twice put in jeopardy of life or limb; nor shall private property be taken


21

or applied to public use, without authority of law and without just compensation being first made

or secured.” Pa. Const. Art. I, Section 10 (emphasis added) (the “PA Takings Clause”).

84. The PA Takings Clause provides the same protections offered by the Federal

Takings Clause and, consequently, Pennsylvania courts have analyzed claims asserted under the

PA Takings Clause under Federal Takings Clause case law. See Machipongo Land & Coal Co. v.

Dept. of Envt’l. Prot., 799 A.2d 751, 763 n. 7 (Pa. 2002).

85. Therefore, for the reasons set forth above concerning Count III, the Act

constitutes a taking under the PA Takings Clause in violation of the Pennsylvania Constitution.

86. Accordingly, Plaintiffs seek a declaration from this Court that the Act violates the

PA Takings Clause, injunctive relief to prevent enforcement of the Act, and other and further

relief as the Court deems just and appropriate.

COUNT V (against all Defendants)

Declaratory Judgment – The Act is Preempted by the Landlord-Tenant Act



88. Under Pennsylvania law, a local ordinance, like the Act, that “contradicts,

contravenes, or is inconsistent with a state statute is invalid.” Holt’s Cigar Co., Inc. v. City of

Phila., 10 A.3d 902, 907 (Pa. 2011) (citations omitted).

89. Here, the Act irreconcilably “contradicts, contravenes, or is inconsistent” with the

Landlord-Tenant Act.

90. The Landlord-Tenant Act expressly provides that the Pennsylvania legislature

shall be the sole source of rights, remedies, and procedures governing the landlord/tenant

relationship: “All other acts and parts of acts, general, local and special, inconsistent with or


22

supplied by this act, are hereby repealed. It is intended that this act shall furnish a complete

and exclusive system in itself.” 68 P.S. § 250.602 (emphasis added); see also Com. v. Tobin,

828 A.2d 414, 422 n.7 (Pa. Cmwlth. 2003) (“[T]he focus of [the Landlord-Tenant Act] is on the

right of landlords to recover possession and rental fees owed.”).

91. To that end, the Landlord-Tenant Act provides landlords with an absolute right to

seek repossession of their property when a tenant defaults under a lease agreement. 68 P.S.

§ 250.501. So long as a landlord complies with its notice requirements, a landlord can recover

property from a defaulting tenant and restore their ability to re-let the property and collect rent.

See id.

92. But rather than supplementing a landlord’s right to evict a defaulting tenant, the

Act strips landlords of this right entirely. The Act makes it unlawful, during the COVID-19

emergency period (i.e., until at least August 31, 2020 at the earliest), to evict a residential or

small business tenant in Philadelphia, except to “prevent an imminent threat of harm by the

person being evicted, including physical harm or harassment.” Exhibit B, Bill 200295

(*Residential Eviction Relief, *Commercial Eviction Relief). In essence, the Act forecloses

landlords from filing complaints for repossession of their property for the failure to pay rent,

breach of a lease, or at the end of the lease term.

93. The Landlord-Tenant Act, however, expressly provides that a landlord may file a

complaint and the “the justice of the peace shall issue a summons” to a defaulting tenant, who

must answer the complaint within ten days. 68 P.S. § 250.502(b) (emphasis added). The Act is

irreconcilably contrary to that by shutting the court doors to landlords until – at the earliest –

August 31, 2020.


23

94. In addition, the Act requires landlords to submit to an Eviction Diversion

Program, including a “conciliation conference … to mediate an agreement for asserted

residential lease violations.” Exhibit A, Bill 200294 at 2(a)(i). Under the Act, a landlord is

prohibited from taking “steps in furtherance of recovering possession of residential property …

without first participating in a conciliation conference ….” Id. at 2(b).

95. The Landlord-Tenant Act, however, allows a landlord “desirous of repossessing

real property from a tenant [to] notify, in writing, the tenant to remove from the same” when the

lease has expired, tenant has breached the terms of the lease, or tenant failed to pay rent due and

owing. 68 P.S. § 250.501(a). There is no requirement to participate in an Eviction Diversion

Program.

96. The Landlord-Tenant Act further provides that, “[n]othing contained in this article

shall be construed as abolishing the right of any landlord to recover possession of any real

property from a tenant by action of ejectment, or from instituting any amicable action of

ejectment to recover possession of any real property by confession of judgment in accordance

with the terms of any written contract or agreement.” 68 P.S. §250.511.

97. The Act, however, effectively voids any confession of judgment provisions

entered into by landlords and commercial (small business) tenants.

98. Landlords are further prohibited under the Act from collecting rent and late fees

during the COVID-19 emergency period, and must also enter a “hardship repayment agreement”

with any defaulting tenant under which a tenant “shall be considered in full compliance with any

payment obligations under such tenant’s lease.” Exhibit C, Bill 200302 (*Temporary Waiver of

Certain Fees); Exhibit E, Bill 200305 (*Mandatory Hardship Repayment Agreement for

Residential Tenants).


24

99. For any tenant who enters into a hardship repayment agreement, “until nine (9)

months after the last day of the COVID-19 emergency period the nonpayment of rent shall not be

a legal basis to evict a tenant,” except in the face of imminent harm, or, despite additional,

repeated notice from the landlord of a tenant’s rights under the Act, continued failure to pay rent.

Id. Further still, apart from any lease entered into before the Act, the “hardship repayment

agreement” requires landlords to allow residential tenants until May 31, 2021 to pay, both

interest and penalty free, any past due rent. Id.

100. The Landlord-Tenant Act, however, expressly provides that a “landlord may

recover from a tenant rent in arrears in an action of assumpsit …. In any such action, interest at

the legal rate on the amount of rent may be allowed if deemed equitable under the circumstances

of the particular case.” 68 P.S. § 250.301. The Act prohibits the imposition of interest for rent in

arrears and is thus irreconcilably inconsistent with the Landlord-Tenant Act.

101. The Act wholly frustrates the purpose of the Landlord-Tenant Act. It stifles the

remedies available to landlords under the Landlord-Tenant Act to recover possession of their

property, and allows tenants to shirk their contractual obligations without consequence. The

eviction moratoria, late fee waiver, and hardship repayment agreements are in direct conflict

with the Landlord-Tenant Act, and thus are invalid and unenforceable.

102. The only way to remedy the conflict between the Landlord-Tenant Act and the

Act is to strike down the Act. Hoffman Min. Co., Inc. v. v. ZHB of Adams Twp., 32 A.3d 587,

594-95 (Pa. 2011) (citations omitted).


25

COUNT VI (against all Defendants)

42 U.S.C. § 1983 – Violation of the Fourteenth Amendment to the United States Constitution (Due Process)



104. The Due Process Clause of the Fourteenth Amendment to the United States

Constitution “provides heightened protection against government interference with certain

fundamental rights and liberty interests,” including those “specific freedoms protected by the Bill

of Rights” and “those fundamental rights and liberties which are, objectively, deeply rooted in

this Nation’s history and tradition ….” Washington v. Glucksberg, 521 US 702, 720-21 (1997).

Such rights include most of those enumerated in the Bill of Rights, including property rights.

Duncan v. Louisiana, 391 U.S. 145, 147-49 (1968).

105. While Defendants have certain police powers, those powers do not afford

“unrestricted authority to accomplish whatever the public may presently desire.” Panhandle E.

Pipe Line Co. v. St. Highway Comm’n of Kansas, 294 U.S. 613, 622 (1935).

106. The Act and enforcement thereof violates the substantive due process rights of

Plaintiffs guaranteed by the Fourteenth Amendment to the United States Constitution, which

expressly states that the government shall not “deprive any person of life, liberty, or property,

without due process of law.”

107. Under the Due Process Clause, a law must not be unreasonable, unduly

oppressive or patently beyond the necessities of the case, and the means which it employs must

have a real and substantial relation to the objects sought to be attained. “The rational

relationship standard of substantive due process by which legislation is judicially measured is

that the statute or regulation at issue must have had a real and substantial relationship to the


26

object sought to be obtained.” Khan v. State Bd. of Auctioneer Examiners, 842 A.2d 936, 946

(Pa. 2004) (citing Nixon v. Com., 839 A.2d 277, 287-88 (Pa. 2003)); see also Heffner v. Murphy,

745 F.3d 56, 79 (3d Cir. 2014).

108. As recounted previously, the Act is “patently beyond the necessities of the case”

and therefore violates Plaintiffs’ due process rights.11

109. The Act expressly deprives Plaintiffs of their rights and interest in their property,

as they are prevented from using their properties in the manner they please or to mitigate harm

when a tenant fails to pay rent or other obligations.

110. Defendants failed to provide Plaintiffs with the procedural and substantive due

process required by the United States Constitution as they relate to the significant property rights

at stake.

111. Even if there was a legitimate reason for these restrictions, the Act is by no means

“rationally related” to the City’s objective. While the Act purports to address the economic

strain resulting from COVID-19, it remedies only the struggle faced by tenants without

considering what financial impact the pandemic has and will continue to have on landlords. It is

true that abating rent obligations and staying evictions may allow tenants to fend off the financial

impact of COVID-19; but the City fails to account for the ongoing financial obligations landlords

face, like enduring mortgage payments, property taxes, and utilities.

11 In fact, the legislative findings in the Act address historical financial issues that renters face and the shut-down of the Commonwealth and City as a result of COVID-19. The findings about the financial impact of the COVID-19 epidemic on renters are purely speculative and, at least on the face of the Act, are not supported by any data. In fact, the purpose of the Act appears to be to remedy historical financial issues facing renters that City Council speculateswill be exacerbated by COVID-19.


27

112. In fact, the Act “robs Peter to pay Paul – it plunders [Plaintiffs’] due process

rights in its efforts to enhance public safety.” See Com v. Ritz, 153 A.2d 336, 348 (Pa. Super.

2016).

113. Plaintiffs have no adequate remedy at law for the harm caused by the Act. Unless

Defendants are enjoined and restrained from enforcing or threatening to enforce the Act,

Plaintiffs will be irreparably injured, as they will be deprived of their rights under the United

States Constitution, and will continue to suffer substantial loss of rents, profits, and good will,

the nature and extent of which will be extremely difficult or impossible to ascertain.






COUNT VII (against all Defendants)

42 U.S.C. § 1983 – Violation of Article I, Section 1 of the Pennsylvania Constitution (Due Process)



117. Article I, Section 1 of the Pennsylvania Constitution – the Commonwealth’s Due

Process guarantee – provides: “All men are born equally free and independent, and have certain

inherent and indefeasible rights, among which are those of enjoying and defending life and

liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their

own happiness.”


28

118. The Due Process clauses in the United States and Pennsylvania Constitutions are

“‘substantially equivalent’ in their protective scope.” Hospital & Healthsystem Ass’n of Pa. v.

Com., 77 A.3d 587, 600 n.15 (Pa. 2013).

119. Accordingly, for the reasons set forth above concerning the Due Process clause in

the United States Constitution, the Act violates Plaintiffs’ due process as guaranteed by the

Pennsylvania Constitution.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their

favor and against Defendants, individually, jointly and/or severally as follows:

(a) declare that the Act is null and void because it is unconstitutional under Article I,

Section 10 of the United States Constitution;

(b) declare that the Act is null and void because it is unconstitutional under Article I,

Section 17 of the Pennsylvania Constitution;

(c) declare that the Act is null and void because it is unconstitutional under the Fifth

and Fourteenth Amendments to the United States Constitution;

(d) declare that the Act is null and void because it is unconstitutional under Article I,

Section 10 of the Pennsylvania Constitution;

(e) declare that the Act is null and void because it is preempted by the Pennsylvania

Landlord-Tenant Act;

(f) declare that the Act is null and void because it violates Plaintiffs’ rights under the

Due Process clause of the Fourteenth Amendment to the United States Constitution;

(g) declare that the Act is null and void because it violates Plaintiffs’ rights under

Article I, Section 1 of the Pennsylvania Constitution;


29

(h) permanently enjoin Defendants, or anyone acting in concert with Defendants,

from implementing and/or enforcing the Act;

(i) issue a preliminary injunction prohibiting Defendants, or anyone acting in concert

with Defendants, from implementing and/or enforcing the Act;

(j) award Plaintiffs damages arising out of the claims asserted under 42 U.S.C.

§ 1983, including at least nominal damages;

(k) award Plaintiffs their costs and reasonable attorneys’ fees incurred in this action

pursuant to 42 U.S.C. § 1988 and other applicable laws; and

(l) all such other further relief as the Court deems proper and just.

Respectfully submitted,

Dated: July 6, 2020 /s/ Colin D. Dougherty Colin D. Dougherty, Esq. (Pa. I.D. No. 88363) Michael K. Twersky, Esq. (Pa. I.D. No. 80568) FOX ROTHSCHILD LLP 10 Sentry Parkway, Suite 200 P.O. Box 3001 Blue Bell, PA 19422-3001 (215) 299-2000 (tel)/(215) 299-2150 (fax) Email: [email protected] Email: [email protected]

Paul Jay Cohen, Esq. (Pa. I.D. No. 38441) COHEN MARRACCINI, LLC 660 Second Street Pike Southampton, PA 18966 (215) 887-8100 (tel)/(215) 887-8732 (fax) Email: [email protected]

Todd L. Baritz, Esq. (Pa. I.D. No. 89157) Kenneth L. Baritz & Associates, P.C. 100 S. Broad Street Suite 1205 Philadelphia, PA 19102 215-557-8608 (tel) Email: [email protected] Attorneys for Plaintiffs



EXHIBIT “A”

Case 2:20-cv-03300 Document 1-1 Filed 07/06/20 Page 1 of 7

City of Philadelphia

Legislation Text

City CouncilChief Clerk's Office

402 City HallPhiladelphia, PA 19107

Amending various sections of The Philadelphia Code to address matters related to the landlord and tenantrelationship during the novel coronavirus of 2019 pandemic and otherwise, including providing for an evictiondiversion program, and making certain technical changes, all under certain terms and conditions.

THE COUNCIL OF THE CITY OF PHILADELPHIA HEREBY ORDAINS:

SECTION 1.

The Council of the City of Philadelphia hereby makes the following legislative findings:

1. On March 6, 2020, in response to the 2019 novel coronavirus disease, COVID-19, the Governor ofPennsylvania issued a Proclamation of Disaster Emergency.

2. On March 11, 2020, the World Health Organization (“WHO”) declared the COVID-19 outbreak a globalpandemic, defined as the worldwide spread of a new virus for which most people do not have immunity.

3. On March 19, 2020, the Governor of Pennsylvania and Pennsylvania Secretary of Health ordered allnon-life-sustaining businesses in Philadelphia and the surrounding counties to close their physicallocations to slow the spread of COVID-19.

4. On March 22, 2020, the Mayor and the Commissioner of Public Health jointly issued their secondEmergency Order Temporarily Prohibiting Operation of Non-Essential Businesses and Congregation ofPersons to Prevent the Spread COVID-19, which remains in effect.

5. On March 23, 2020, the Governor of Pennsylvania issued a Stay at Home Order that applies toPhiladelphia and numerous surrounding counties.

6. The local and state orders shut down or reduced the operations of many businesses in Philadelphia.99.7% of Greater Philadelphia’s economy consists of small businesses.

7. On March 16, 2020, the Supreme Court of Pennsylvania issued Orders to prevent the Judiciary fromeffectuating an eviction, ejectment or other displacement from a residence. The Supreme Courtextended these Orders on April 28, 2020. On May 7, 2020, Governor Wolf signed an executive orderstaying foreclosure and eviction notice requirements for 60 days, thereby tolling the ability tocommence the timelines necessary for the initiation of foreclosure and eviction proceedings until July10, 2020. On May 21, 2020, Governor Wolf amended the May 7, 2020 executive order to apply therevised notice provisions only to matters involving the nonpayment of monies and proceedings relatedto removal of any tenant solely because the tenant has held over or exceeded the term of a lease.

8. The City of Philadelphia is one of the most densely populated cities in the United States of America

File #: 200294, Version: 1

City of Philadelphia Printed on 7/5/2020Page 1 of 6powered by Legistar™


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with an estimated population size of 1.5 million.

9. Philadelphia is also one of the poorest cities in America, where 24.5% or 377,116 Philadelphiaresidents, live in poverty.

10. Philadelphia has a high population of renters. The number of renters in Philadelphia has rapidlyincreased in recent years, growing from 40.7% in 2000 to almost half of the population today.

11. Before the pandemic, Philadelphia had the 4th highest eviction rate among large cities, with 1 out ofevery 14 renters facing eviction each year.

12. More than 300,000 of Philadelphia’s renters struggled to afford rent before the COVID-19 pandemic. In2017, 53.4% of Philadelphia renters were cost-burdened, meaning they pay more than 30% of theirincome on rent, and 31% of Philadelphia renters were severely cost-burdened, meaning they spent morethan 50% of their income on rent.

13. To address the city’s affordable housing crisis, Philadelphia City Council established a Tenant LegalDefense Fund in 2017, an anti-eviction task force in 2017, and right to counsel in 2019 to addressevictions.

14. The number of Philadelphians struggling to pay rent has undoubtedly increased since the onset of theCOVID-19 pandemic, as at least 1.9 million Pennsylvanians and over 120,000 Philadelphians have filedfor unemployment since March 2020, exacerbating already-existing financial burdens.

15. When the judicial emergency is lifted, there is an estimated backlog of 5,000 eviction cases inPhiladelphia Municipal Court.

16. The average annual cost for the City of Philadelphia to provide shelter to a family of four is $58,000.

17. According to current projections from the Mayor’s Office, as a result of the COVID-19 pandemic, theestimated revenue losses, federal reimbursements, and expense increases indicate that the City’s FiscalYear 2021 budget must include $649 million of reductions to planned spending, reduced reserves andnew revenue sources compared to the original Fiscal Year 2021 budget, proposed on March 5th, 2020,to close the budget gap.

18. The Mayor’s revised Fiscal Year 2021 budget, submitted to Council on May 1, 2020, included steep cutsto many affordable housing programs and initiatives that serve the City’s most vulnerable populations,including reductions in funding for the preservation and construction of affordable housing units, rentalassistance programs, low-income home repair programs, the Philly First Home program and thePhiladelphia Eviction Prevention Project.

19. In May 2020, the City of Philadelphia used approximately $10 million in federal funds to create PHLRent Assist, a rental assistance program that aimed to provide rental assistance to 3,000-4,000 families.Approximately 13,000 Philadelphians--four to five times the number of families that could be funded--applied for this program.

20. The COVID-19 pandemic’s negative impact on the lives and incomes of Philadelphians, and Cityrevenues, has exacerbated the pre-existing housing crisis and created a housing emergency in the City of





Philadelphia. The measures identified below are necessary to ensure residents are able to remain in theirhomes, and small businesses are able to stay in business.

SECTION 2. Title 9 of The Philadelphia Code is hereby amended to read as follows:

TITLE 9. REGULATION OF BUSINESSES, TRADES AND PROFESSIONS

* * *

CHAPTER 9-800. LANDLORD AND TENANT

§ 9-802. Definitions.* * *

(5) Unfair Rental Practice. Any act in violation of [§ 9-804.] §§ 9-804 or 9-809.

* * *

§ 9-809. COVID-19 Emergency Housing Protections.

(1) Definitions. The following definitions apply to this Section 9-809 only:

(a) Certification of Hardship. A signed written statement, which may besigned by use of a typed electronic signature and provided electronically or may be provided in hard copy, thatis subject to the provisions of Section 1-108 of the Code (Certification), and is submitted by an individual withpersonal knowledge of the facts set forth therein stating, at minimum, as follows, provided that any initialstatements may be further supplemented with additional explanation, facts, or support at any time:

(i) In the case of a residential tenant, that a residential tenant has lost income due to thepandemic and setting forth facts that provide an explanation of the COVID-19 financial hardship suffered.

(ii) In the case of a commercial tenant, that a small business has suffered a small businessfinancial hardship and setting forth facts supporting such financial hardship.

(b) COVID-19 emergency period. The period beginning on thedate the ordinance adding Section 9-809 to the Code becomes law and ending August 31, 2020.

(c) COVID-19 financial hardship. A tenant’s or tenant’s householdmember’s loss of income due to any one or more of the following during the COVID-19 emergency period orthe retroactive emergency period:

(i) A diagnosis of the disease caused by the 2019 novel Coronavirus, known asCOVID-19.





(ii) The need to quarantine or self-quarantine due to the advice of a health careprovider; due to symptoms of COVID-19, such as fever, dry cough, or shortness of breath; after the return of anindividual to the United States after travel to a Tier 2 or Tier 3 country as defined by the United States Centerfor Disease Control (“CDC”) with respect to COVID-19; or as the result of having come into contact with anindividual who has been diagnosed with COVID-19.

(iii) The need to care for a family member or a member of thetenant’s household as the result of such family or household member’s diagnosis of COVID-19 or self-quarantine for purposes described in subparagraph 9-809(1)(c)(ii).

(iv) The need to care for a family member of a member of the tenant’s householdas the result of the closure of a school, daycare, adult care facility, or other care facility where care wouldotherwise be provided for such family or household member.

(v) The inability to work as the result of a requirement by theGovernor, the Secretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the HealthCommissioner that businesses, or a particular type of business, must remain closed.

(vi) The inability to work as the result of such tenant or such tenant’s householdmember being at a greater risk of harm than the general population if such person or such person’s householdmember contracts COVID-19, such as those with compromised immune systems, the elderly, or those who haveself-quarantined as the result of the recommendation of a health care professional, the CDC, the Governor, theSecretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the Health Commissioner.

(vii) The inability to work as a result of a requirement by theGovernor, the Secretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the HealthCommissioner that residents of certain areas of the Commonwealth must not travel, and such travel would benecessary to report to work.

(viii) The loss of a job, the reduction of work hoursoffered to such tenant or such tenant’s household member, or a reduction in the salary or hourly wage paid tosuch tenant or such tenant’s household member, whether permanent or temporary.

(ix) The inability to commence or obtain employment.

(x) The need to financially support a family member due to thefamily member or a household member of such family member’s loss of income for any one or more of thereasons set forth in this paragraph 9-809(1)(c)..

(d) Landlord. An owner of a rental premises and any agent, or otherperson, operating or managing a rental premise on behalf of an owner.

(e) Retroactive emergency period. The period beginning March 1, 2020and continuing through the effective date of the ordinance adding this Section 9-809 to the Code.

(f) Small business. A person that employs fewer than 100 totalemployees, wherever located, whether within the City of Philadelphia or elsewhere.





(g) Small business financial hardship. A small business’s documented loss of incomedue to one or more of the following during the COVID-19 emergency period or the retroactive emergencyperiod:

(i) A requirement or recommendation by the Governor,the Secretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the Health Commissioner thatbusinesses in a particular area, or a particular type of business, remain fully or partially closed.

(ii) The owner or operator, a key employee, or a significantnumber of employees of the small business being unable to work as a result of the circumstances set forth insubparagraphs 9-809(1)(c)(i), (ii), (iii), (iv), (vi), or (vii).

(iii) The loss of customers or reduction of business fromcustomers as a result of the COVID-19 pandemic, or related recommendations or requirements of theGovernor, the Secretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the HealthCommissioner.

(2) Purpose. This Section 9-809 shall apply in addition to any other provisions inthis Chapter 9-800, or any provisions of a lease entered into between a tenant and landlord. If the provisions ofthis Section 9-809 conflict with any other provisions of Chapter 9-800 or the provisions of any lease thatotherwise governs a landlord tenant relationship, the provisions of this Section 9-809 shall control.

(*) Eviction Diversion Program.

(a) The Commission, or such other City department or office as the Mayormay designate, is authorized to establish a residential eviction diversion program consisting of the following:

(i) A conciliation conference between a landlord and tenant that hasexperienced a COVID-19 financial hardship to mediate an agreement for asserted residential lease violations.

(ii) A designated mediator and housing counselor that participates inthe conciliation conference.

(iii)A designated housing counselor that engages with the tenant priorto the conciliation conference to educate and discuss available resources.

(b) Provided that this paragraph (b) expires on December 31, 2020, ifthe residential eviction diversion program authorized by this subsection, “Eviction Diversion Program,” isimplemented, from the date of such implementation no landlord shall take steps in furtherance of recoveringpossession of a residential property occupied by a tenant who has suffered a COVID-19 financial hardshipother than providing a notice required under this Section 9-809 without first participating in a conciliationconference, including any requirements set forth in an applicable regulation, unless one of the followingrequirements are met:

(i) Eviction is necessary to cease or prevent an imminent threat ofharm by the person being evicted, including physical harm or harassment; or

(ii) The landlord has provided the affected tenants notice





of such tenants’ rights under this Section 9-809, and how to exercise such rights; and has contacted the evictiondiversion program to schedule a conciliation conference but the program is unable to offer a date for aconciliation conference within thirty (30) days of the landlord’s initial request to schedule; provided that suchlandlord shall thereafter participate in a conciliation conference when it becomes available, if prior to aneviction judgment being issued.

(*) Defenses. The failure of the landlord to comply with any obligation under this Section 9-809 may beasserted as a defense by a tenant in an action before any adjudicatory body and may not be waived.

(*) Severability. If any provision of this Section 9-809 or application thereof to any persons or circumstancesis judged invalid by a court of competent jurisdiction, the invalidity shall not affect other provisions orapplications of the Ordinance that can be given effect without the invalidated provision or application and tothis end the provisions of the ordinance are declared severable.

* * *

SECTION 3. This ordinance shall be effective immediately.




EXHIBIT “B”



Legislation Text



Amending various sections of The Philadelphia Code to address matters related to the landlord and tenantrelationship during the novel coronavirus of 2019 pandemic and otherwise, including providing for temporaryeviction relief, and making certain technical changes, all under certain terms and conditions.


SECTION 1.



















12. More than 300,000 of Philadelphia’s renters struggled to afford rent before the COVID-19 pandemic. In2017, 53.4% of Philadelphia renters were cost-burdened, meaning they pay more than 30% of theirincome on rent, and 31% of Philadelphia renters were severely cost-burdened, meaning they spent morethan 50% of their income on rent.
















* * *




* * *






(b) COVID-19 emergency period. The period beginning on thedate the ordinance adding Section 9-809 to the Code becomes law and ending August 31, 2020.

(c) COVID-19 financial hardship. A tenant’s or tenant’s householdmember’s loss of income due to any one or more of the following during the COVID-19 emergency period orthe retroactive emergency period:

(i) A diagnosis of the disease caused by the 2019 novel Coronavirus,known as COVID-19.

(ii) The need to quarantine or self-quarantine due to the advice of





a health care provider; due to symptoms of COVID-19, such as fever, dry cough, or shortness of breath; afterthe return of an individual to the United States after travel to a Tier 2 or Tier 3 country as defined by the UnitedStates Center for Disease Control (“CDC”) with respect to COVID-19; or as the result of having come intocontact with an individual who has been diagnosed with COVID-19.

(iii)The need to care for a family member or a member of thetenant’s household as the result of such family or household member’s diagnosis of COVID-19 or self-quarantine for purposes described subparagraph 9-809(1)(c)(ii).

(iv)The need to care for a family member of a member of thetenant’s household as the result of the closure of a school, daycare, adult care facility, or other care facilitywhere care would otherwise be provided for such family or household member.



(vii) The inability to work as a result of a requirement by theGovernor, the Secretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the HealthCommissioner that residents of certain areas of the Commonwealth must not travel, and such travel would benecessary to report to work.

(viii) The loss of a job, the reduction of work hoursoffered to such tenant or such tenant’s household member, or a reduction in the salary or hourly wage paid tosuch tenant or such tenant’s household member, whether permanent or temporary.


(x) The need to financially support a family member due to thefamily member or a household member of such family member’s loss of income for any one or more of thereasons set forth in this paragraph 9-809(1)(c)..

(d) Landlord. An owner of a rental premises and any agent, or otherperson, operating or managing a rental premise on behalf of an owner.

(e) Retroactive emergency period. The period beginning March 1, 2020and continuing through the effective date of the ordinance adding this Section 9-809 to the Code.






(g) Small business financial hardship. A small business’s documented loss of incomedue to one or more of the following during the COVID-19 emergency period or the retroactive emergencyperiod:

(i) A requirement or recommendation by the Governor,the Secretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the Health Commissioner thatbusinesses in a particular area, or a particular type of business, remain fully or partially closed.

(ii) The owner or operator, a key employee, or a significantnumber of employees of the small business being unable to work as a result of the circumstances set forth insubparagraphs 9-809(1)(c)(i), (ii), (iii), (iv), (vi), or (vii).

(iii) The loss of customers or reduction of business fromcustomers as a result of the COVID-19 pandemic, or related recommendations or requirements of theGovernor, the Secretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the HealthCommissioner.

(2) Purpose. This Section 9-809 shall apply in addition to any other provisions inthis Chapter 9-800, or any provisions of a lease entered into between a tenant and landlord. Ifthe provisions of this Section 9-809 conflict with any other provisions of Chapter 9-800 or theprovisions of any lease that otherwise governs a landlord tenant relationship, the provisions ofthis Section 9-809 shall control.

(*) Residential Eviction Relief. During the COVID-19 emergency period the only legal basis for evicting aresidential tenant in Philadelphia shall be to cease or prevent an imminent threat of harm by the person beingevicted, including physical harm or harassment, and it shall be unlawful for a landlord to take any steps infurtherance of recovering possession of a residential premises rented by a tenant on any other basis.

(*) Commercial Eviction Relief. If any person has provided the landlord with a certification of hardship,during the COVID-19 emergency period the only legal basis for evicting a small business that is a commercialtenant in Philadelphia shall be to cease or prevent an imminent threat of harm by the person being evicted,including physical harm or harassment, and it shall be unlawful for a landlord to take any steps in furtheranceof recovering possession of a commercial premises rented by such small business on any other basis.



* * *

SECTION 3. This ordinance shall be effective immediately.




EXHIBIT “C”



Legislation Text



Amending various sections of The Philadelphia Code to address matters related to the landlord and tenantrelationship during the novel coronavirus of 2019 pandemic and otherwise, including providing for thetemporary waiver of certain fees, and making certain technical changes, all under certain terms and conditions.


SECTION 1.



















12. More than 300,000 of Philadelphia’s renters struggled to afford rent before the COVID-19 pandemic. In2017, 53.4% of Philadelphia renters were cost-burdened, meaning they paid more than 30% of theirincome on rent, and 31% of Philadelphia renters were severely cost-burdened, meaning they spent morethan 50% of their income on rent.
















* * *




* * *






(b) COVID-19 emergency period. The period beginning on the datethe ordinance adding Section 9-809 to the Code becomes law and ending August 31, 2020.

(c) COVID-19 financial hardship. A tenant’s or tenant’s household member’sloss of income due to any one or more of the following during the COVID-19 emergency period or theretroactive emergency period:






(ii) The need to quarantine or self-quarantine due to the advice of ahealth care provider; due to symptoms of COVID-19, such as fever, dry cough, or shortness of breath; after thereturn of an individual to the United States after travel to a Tier 2 or Tier 3 country as defined by the UnitedStates Center for Disease Control (“CDC”) with respect to COVID-19; or as the result of having come intocontact with an individual who has been diagnosed with COVID-19.


(iv) The need to care for a family member of a member of thetenant’s household as the result of the closure of a school, daycare, adult care facility, or other care facilitywhere care would otherwise be provided for such family or household member.



(vii) The inability to work as a result of a requirement by the Governor,the Secretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the Health Commissioner thatresidents of certain areas of the Commonwealth must not travel, and such travel would be necessary to reportto work.

(viii) The loss of a job, the reduction of work hours offered to such tenant or suchtenant’s household member, or a reduction in the salary or hourly wage paid to such tenant or such tenant’shousehold member, whether permanent or temporary.


(x) The need to financially support a family member due to the familymember or a household member of such family member’s loss of income for any one or more of the reasons setforth in this paragraph 9-809(1)(c)..

(d) Landlord. An owner of a rental premises and any agent, or other





person, operating or managing a rental premise on behalf of an owner.

(e) Retroactive emergency period. The period beginning March 1, 2020 andcontinuing through the effective date of the ordinance adding this Section 9-809 to the Code.


(g) Small business financial hardship. A small business’s documented loss of income due toone or more of the following during the COVID-19 emergency period or the retroactive emergency period:

(i) A requirement or recommendation by the Governor, the Secretary ofHealth of the Commonwealth of Pennsylvania, the Mayor, or the Health Commissioner that businesses in aparticular area, or a particular type of business, remain fully or partially closed.

(ii) The owner or operator, a key employee, or a significant number ofemployees of the small business being unable to work as a result of the circumstances set forth insubparagraphs 9-809(1)(c)(i), (ii), (iii), (iv), (vi), or (vii).

(iii) The loss of customers or reduction of business from customers asa result of the COVID-19 pandemic, or related recommendations or requirements of the Governor, theSecretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the Health Commissioner.

(2) Purpose. This Section 9-809 shall apply in addition to any other provisions in thisChapter 9-800, or any provisions of a lease entered into between a tenant and landlord. If the provisions of thisSection 9-809 conflict with any other provisions of Chapter 9-800 or the provisions of any lease that otherwisegoverns a landlord tenant relationship, the provisions of this Section 9-809 shall control.

(*) Temporary Waiver of Certain Fees.

(a) It shall be unlawful for any landlord to charge or accept the payment of latefees, interest on back rent, or similar charges as the result of delinquent payment of rent with respect to aresidential premises during the retroactive emergency period through nine months after the last day of theCOVID-19 emergency period, if a residential tenant occupying such premises has experienced a COVID-19financial hardship. Any residential lease purporting to impose such fees, interest, or charges for delinquentpayment of rent shall be void and non-enforceable.

(b) A residential tenant may establish a presumption that such tenant has suffered a COVID-19financial hardship by submitting a certification of hardship to such tenant’s landlord.

(c) Any fees, interest, or similar charges, submitted by a tenant during the Retroactive emergencyperiod or the COVID-19 emergency period that are prohibited under paragraph (a) of this subsection,“Temporary Waiver of Certain Fees,” shall be credited first against any future rent, and if there is no suchother rent, against any other financial obligations owed by such residential tenant to such tenant’s landlord.





* * *

SECTION 3. This ordinance shall be effective immediately, with the exception of any provisions applicableduring the retroactive emergency period, as defined in Section 2, which shall be effective as of March 1, 2020.




EXHIBIT “D”



Legislation Text



Amending various sections of The Philadelphia Code to address matters related to the landlord and tenantrelationship during the Coronavirus of 2019 pandemic and otherwise, including providing for relief to tenantswho have been illegally locked out of their residences and making certain technical changes, all under certainterms and conditions.


SECTION 1.


























19. In May 2020, the City of Philadelphia used approximately $10 million in federal funds to create PHLRent Assist, a rental assistance program that aimed to provide rental assistance to 3,000-4,000 families.Approximately 13,000 Philadelphians--three to four times the number of families that could be funded--applied for this program.









* * *


* * *

§ 9-804. Unfair Rental Practices.

* * *

(13) Self-Help Eviction. For the purposes of enforcement of Philadelphia Code Chapter 9-1600Prohibition Against Unlawful Eviction Practices, any action by a landlord, or an agent or any other person onbehalf of a landlord, in violation of Section 9-1603 is considered an unfair rental practice under this section 9-804.

[(13)] (14) Any person aggrieved under the provisions of this Section may file a complaint with the FairHousing Commission or may allege any violations in an initial pleading or, where appropriate, in a responsivepleading in a court of competent jurisdiction.

[(14)] (15) No provision of this Section can be waived or made subject to a contract between the partiesdepriving a tenant of the benefits of this Section.

* * *

§ 9-807. Penalty.

(1) Any person violating an order of the Commission or any provision of this Chapter [is subject to a fine ofnot less than fifty (50) dollars and of not more than three hundred (300) dollars together with costs ofprosecution.] shall be guilty of a Class III offense, and shall be subject to a fine as set forth in Section 1-109(3).

* * *

CHAPTER 9-1600. PROHIBITION AGAINST UNLAWFUL EVICTION PRACTICES

* * *

§ 9-1603. Unlawful Self-Help Eviction Actions Prohibited.





(1) No landlord or landlord's agent may engage in self-help evictionpractices, as defined in Section 9-1602 of this Chapter, under any circumstances, in the City of Philadelphia.The requisite, legal process for lawful eviction must consist of execution of a judgment of possession enteredby a court of competent jurisdiction in accordance with State law. Lawful execution of judgment may beperformed only by a Sheriff or court-appointed landlord and tenant officer.

(2) Any agreement between a landlord and tenant which purports to exemptthe Landlord from the prohibitions of this Chapter 9-1600 or any penalty imposed hereunder shall be void andunenforceable.

§ 9-1604. Restoration of Possession.

(1) Where the tenant alleges a violation of this Chapter, the tenant may contact the local police to obtainpolice assistance in regaining entry into the premises. It shall be the duty of the landlord or the landlord's agentto establish that the eviction action undertaken was lawful by making available to the Police Department a copyof the relevant writ of possession or by verifying the existence of the writ to the Police Department, the Sheriffor the court-appointed landlord-tenant officer for verification thereof. The Sheriff and/or the court-appointedlandlord/tenant officers shall maintain records of all current executions of writs issued by the Court so thatverification of legal process may be readily obtained. Where the landlord is unable to produce a copy of therelevant proof of lawful execution of a judgement of possession or other verification thereof, the tenant shall beentitled to regain possession of the premises immediately and the landlord shall be prohibited from blocking orinhibiting re-entry in any way.

(2) Any tenant who is restored possession of a premises as described under this Section, shall have theright to terminate the lease agreement without any penalty, including any early termination fees that mayotherwise be applicable to such termination, within 30 days of being restored possession.

§ 9-1605 Penalties.

(1) Any person who engages in the self-help eviction activities described inthis Chapter or who assists in such activities shall be [subject to a fine or penalty of not less than one hundred(100) dollars nor more than three hundred (300) dollars, or to imprisonment not exceeding ninety (90) days foreach offense.] guilty of a Class III offense, and shall be subject to a fine as set forth in Section 1-109(3). Eachday a violation continues or is permitted to continue shall constitute a separate offense for which a separatepenalty shall be imposed. A violation shall cease when the unlawful conduct as set forth in paragraph [(1)(a)]9-1601(1)(a) ends or when the tenant no longer seeks to exercise his or her rights by regaining possession ofsaid premises.

(2) Private Right of Action. An individual who has been the victim of a self-help eviction practiceprohibited under this Chapter 9-1600 shall have a private right of action against any landlord who violatesSection 9-1603, directly or through an agent, and may recover, for each such violation, actual damages,reasonable attorneys' fees and court costs to the extent allowed by law, punitive damages not to exceed $2,000per violation, and such other relief, including injunctive relief, as the court may deem appropriate. Providedthat, for any self-help eviction practice that occurs after a tenant regains possession of the premises after aprior self-help eviction practice, or that occurs or continues after the Fair Housing Commission issues afinding or order determining that a self-help eviction practice had occurred, each day such subsequent self-helpeviction practice continues shall be considered a separate violation for the purpose of determining the limit ofpunitive damages that may be recovered. This subsection in no way limits the rights of private parties to





pursue any legal rights and claims they may possess under a written agreement or any other applicable law.

(3) Subsequent or repeated violations, which are not committed contemporaneously with the initialviolation, shall be treated as separate causes of action and shall be subject to separate award of damagesunder Section 9-1605 (2).

* * *

SECTION 3. This Ordinance shall be effective immediately.




EXHIBIT “E”



Legislation Text



Amending various sections of The Philadelphia Code to address matters related to the landlord and tenantrelationship during the novel coronavirus of 2019 pandemic and otherwise, including providing for paymentagreements for tenants with a certified financial hardship related to COVID-19, and making certain technicalchanges, all under certain terms and conditions.


SECTION 1.














8. The City of Philadelphia is one of the most densely populated cities in the United States of Americawith an estimated population size of 1.5 million.











19. In May 2020, the City of Philadelphia used approximately $10 million in federal funds to create PHLRent Assist, a rental assistance program that aimed to provide rental assistance to 3,000-4,000 families.Approximately 13,000 Philadelphians--three to four times the number of families that could be funded--applied for this program.

20. The COVID-19 pandemic’s negative impact on the lives and incomes of Philadelphians, and City





revenues, has exacerbated the pre-existing housing crisis and created a housing emergency in the City ofPhiladelphia. The measures identified below are necessary to ensure residents are able to remain in theirhomes, and small businesses are able to stay in business.



* * *




* * *






(b) COVID-19 emergency period. The period beginning on the datethe ordinance adding Section 9-809 to the Code becomes law and ending August 31, 2020.

(c) COVID-19 financial hardship. A tenant’s or tenant’s household member’sloss of income due to any one or more of the following during the COVID-19 emergency period or theretroactive emergency period:






(ii) The need to quarantine or self-quarantine due to the advice of ahealth care provider; due to symptoms of COVID-19, such as fever, dry cough, or shortness of breath; after thereturn of an individual to the United States after travel to a Tier 2 or Tier 3 country as defined by the UnitedStates Center for Disease Control (“CDC”) with respect to COVID-19; or as the result of having come intocontact with an individual who has been diagnosed with COVID-19.


(iv) The need to care for a family member of a member of the tenant’s household asthe result of the closure of a school, daycare, adult care facility, or other care facility where care wouldotherwise be provided for such family or household member.



(vii) The inability to work as a result of a requirement by the Governor,the Secretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the Health Commissioner thatresidents of certain areas of the Commonwealth must not travel, and such travel would be necessary to reportto work.

(viii) The loss of a job, the reduction of work hours offered to such tenant or suchtenant’s household member, or a reduction in the salary or hourly wage paid to such tenant or such tenant’shousehold member, whether permanent or temporary.


(x) The need to financially support a family member due to the familymember or a household member of such family member’s loss of income for any one or more of the reasons setforth in this paragraph 9-809(1)(c)..

(d) Landlord. An owner of a rental premises and any agent, or other





person, operating or managing a rental premise on behalf of an owner.

(e) Retroactive emergency period. The period beginning March 1, 2020 andcontinuing through the effective date of the ordinance adding this Section 9-809 to the Code.


(g) Small business financial hardship. A small business’s documented loss of income due toone or more of the following during the COVID-19 emergency period or the retroactive emergency period:

(i) A requirement or recommendation by the Governor, the Secretary ofHealth of the Commonwealth of Pennsylvania, the Mayor, or the Health Commissioner that businesses in aparticular area, or a particular type of business, remain fully or partially closed.

(ii) The owner or operator, a key employee, or a significant number ofemployees of the small business being unable to work as a result of the circumstances set forth insubparagraphs 9-809(1)(c)(i), (ii), (iii), (iv), (vi), or (vii).

(iii) The loss of customers or reduction of business from customers asa result of the COVID-19 pandemic, or related recommendations or requirements of the Governor, theSecretary of Health of the Commonwealth of Pennsylvania, the Mayor, or the Health Commissioner.

(2) Purpose. This Section 9-809 shall apply in addition to any other provisions in thisChapter 9-800, or any provisions of a lease entered into between a tenant and landlord. If the provisions of thisSection 9-809 conflict with any other provisions of Chapter 9-800 or the provisions of any lease that otherwisegoverns a landlord tenant relationship, the provisions of this Section 9-809 shall control.

(*) Mandatory Hardship Repayment Agreement for Residential Tenants with a Certified Financial Hardship asthe Result of the COVID-19 Pandemic.

(a) Financial Hardship. Except as provided in paragraph (g) below, any residential tenant that hassuffered a COVID-19 financial hardship during the retroactive emergency period or the COVID-19 emergencyperiod, and has failed to pay rent as normally due at any point prior to the end of the COVID-19 emergencyperiod shall have the right to enter into a hardship repayment agreement as set forth in subparagraphs (b)(i)through (iii), below, without incurring any penalty. Such tenant shall be considered in full compliance with anypayment obligations under such tenant’s lease, and any associated payment agreements, provided such tenantprovides such tenant’s landlord the following and thereafter enters into a hardship repayment agreement:

(i) A certification of hardship; and

(ii) Documentary evidence of the loss of income or increases in expenses the tenant hasincurred during the retroactive emergency period or the COVID-19 emergency period as a result of suchtenant’s COVID-19 financial hardship, or if such documentation cannot be reasonably provided, a furthercertification explaining why such documentation is not available which may be signed by use of a typedelectronic signature and provided electronically or may be provided in hard copy, that is subject to the





provisions of Section 1-108 of the Code (Certification).

(b) Hardship Repayment Agreement. Any landlord whose residential tenant qualifies for a hardshiprepayment agreement pursuant to paragraph (a), “Financial Hardship,” shall enter into a repaymentagreement with such tenant to pay past due rent pursuant to the following terms:

(i) The tenant shall pay the full amount of past due rent to thelandlord within nine (9) months after the last day of the COVID-19 emergency period.

(ii) Beginning the first day of the month following the COVID-19 emergencyperiod, and every month thereafter, the tenant shall pay:

(.1) The full monthly rate of rent as normally due; plus

(.2) At a minimum, the lesser of the following: thirty percent (30%) of the full monthlyrate of rent due during the COVID-19 emergency period, or the total amount of past due rent divided by nine(9).

(iii) No late fees or other charges related to past due rent may be charged duringthe retroactive emergency period, the COVID-19 emergency period, and the nine (9) months thereafter.

(iv) If the tenant does not renew or extend the term of the lease, at the end of the term of thelease, the landlord may apply any security deposit towards any past rent due.

(c) Prohibition on Hardship Repayment Agreements Reduced to Judgment. It shall be unlawful for alandlord to require or request a residential tenant who has suffered a COVID-19 financial hardship tomemorialize a hardship repayment agreement entered into pursuant to subparagraph (b), “HardshipRepayment Agreement,” in a judgment by agreement, consent order, a consent judgment, or similar court order.

(d) Notice Required and Limitation on Eviction for Nonpayment of Past Due Rent. In addition to anyother limitations set forth under this Section 9-809, until nine (9) months after the last day of the COVID-19emergency period the nonpayment of rent shall not be a legal basis to evict a tenant unless the followingconditions are met:

(i) With respect to a tenant that has not entered into a hardship repayment agreement orrequested to enter into a hardship repayment agreement, the landlord has provided the tenant written noticeregarding the tenant’s rights under this subsection, “Mandatory Hardship Repayment Agreement for Tenantswith a Certified Financial Hardship as the Result of the COVID-19 Pandemic,”as provided under subsection,“Notice, Forms, and Regulations” of this section 9-809 at least thirty (30) days prior to the date a landlordtakes any such action and, if applicable,

(ii) With respect to a tenant who has the right to enter into a hardshiprepayment agreement and has requested to enter into such an agreement at any point prior to the end of thethirty (30) day notice period in subparagraph (d)(i), above, but has not yet entered such an agreement, theeviction action is based on a failure to pay the ongoing monthly rate of rent as it is normally due after the endof the COVID-19 emergency period.

(iii) With respect to a tenant who has entered into a hardship repayment agreement, the eviction





action is either (.1) based on a failure to pay the ongoing monthly rate of rent as it is normally due after the endof the COVID-19 emergency period; or (.2) the tenant is in arrears in an amount equal to four or more monthlypayments required under clause (b)(ii)(.2) of paragraph (b), “Hardship Repayment Agreement.”

(e) In addition to any other limitations set forth under this Section 9-809, the Code, or any otherapplicable law, until nine (9) months after the last day of the COVID-19 emergency period it shall be unlawfulfor a landlord to take any steps in furtherance of recovering possession of a residential premises occupied by atenant or a guest of a tenant, on any basis other than a legal basis for eviction. For the purposes of thisparagraph, sending a notice required under this Section 9-809 or participating in an eviction diversion ormediation program established by the City shall not be considered taking steps in furtherance of recoveringpossession of a residential premises.

(f) Forms. The Commission, or such other City department or office as the Mayor may designate,is authorized to create a form to be used by landlords and tenants entering into a hardship repaymentagreement as provided for under paragraph (a) of this subsection and a form for notice under paragraph (c) ofthis subsection.

(g) This subsection “Mandatory Hardship Repayment Agreement for Residential Tenants with aCertified Financial Hardship as the Result of the COVID-19 Pandemic,” shall not apply if one or more of thefollowing conditions are applicable to the residential tenant, or the residential premises occupied:

(i) The tenant receives a federal housing subsidy pursuant to 42 U.S.C. §1437f that is not a tenant-based subsidy; or

(ii) The tenant receives a federal housing subsidy administered by the U.S.Department of Housing and Urban Development; or

(iii) A loan financing the residential premises is insured or assisted under12 U.S.C. § 1701q, § 1715l(d)(3), or § 1715z-1; or 42 U.S.C. § 1485.

(*) Notice, Forms, and Regulations.

(a) Required Notice. Any notice that a landlord is required to provide a tenantunder this Section 9-809 shall be provided in writing, by hand delivery or certified United States mail withproof of mailing, and must provide notice of the tenant’s rights under this Section 9-809 as well as clearinformation on how the tenant may exercise such rights, including the following specific text or such otherlanguage that may be included in a form created by the City pursuant to paragraph (b), “Forms andRegulations,” (below):

YOU MAY BE ELIGIBLE FOR CERTAIN HOUSING PROTECTIONS. IF YOUHAVE EXPERIENCED A FINANCIAL HARDSHIP DUE TO COVID-19 THISMAY INCLUDE, BUT IS NOT LIMITED TO, A NINE (9) MONTH REPAYMENTPLAN TO PAY PAST DUE RENT. YOU MUST PROVIDE YOUR LANDLORD ACERTIFICATION OF HARDSHIP TO QUALIFY FOR SOME OF THESEPROTECTIONS.

(b) Forms and Regulations. The Commission, or such other City department or officeas the Mayor may designate, is authorized to issue regulations implementing this Section 9-809, and to create





forms to be used by landlords and tenants under this Section 9-809 including but not limited to, a certificationof hardship form, a hardship repayment agreement form, and a form of required notice.



* * *

SECTION 3. This ordinance shall be effective immediately, with the exception of any provisions applicableduring the retroactive emergency period, as defined in Section 2 which shall be effective as of March 1, 2020.




JS 44 (Rev. 02/19) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC ’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust

& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation

Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and (Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 485 Telephone Consumer

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) Protection Act’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 490 Cable/Sat TV’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 850 Securities/Commodities/’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) Exchange

’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 890 Other Statutory Actions Medical Malpractice Leave Act ’ 891 Agricultural Acts

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS ’ 893 Environmental Matters’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 895 Freedom of Information’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) Act’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party ’ 896 Arbitration’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 ’ 899 Administrative Procedure’ 245 Tort Product Liability Accommodations ’ 530 General Act/Review or Appeal of’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION Agency Decision

Employment Other: ’ 462 Naturalization Application ’ 950 Constitutionality of’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration State Statutes

Other ’ 550 Civil Rights Actions’ 448 Education ’ 555 Prison Condition

’ 560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)’ 1 Original

Proceeding’ 2 Removed from

State Court’ 3 Remanded from

Appellate Court’ 4 Reinstated or

Reopened’ 5 Transferred from

Another District(specify)

’ 6 MultidistrictLitigation -Transfer

’ 8 Multidistrict Litigation - Direct File

VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED INCOMPLAINT:

’ CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’No

VIII. RELATED CASE(S)IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

HAPCO City of Philadelphia and The Honorable James Kenney

Philadelphia Philadelphia

Fox Rothschild LLP / Colin D. Dougherty, Esquire10 Sentry Parkway, Suite 200 | PO Box 3001Blue Bell, PA 19422-3001 | (610) 397-6500

42 U.S.C. § 1983

Violation of Fifth Amendment, Fourteenth Amendment and Article I, Section 10 of the United States Constitution

07/06/2020

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DESIGNATION FORM (to be used by counsel or pro se plaintiff to indicate the category of the case for the purpose of assignment to the appropriate calendar)

Address of Plaintiff: ______________________________________________________________________________________________

Address of Defendant: ____________________________________________________________________________________________

Place of Accident, Incident or Transaction: ___________________________________________________________________________

RELATED CASE, IF ANY:

Case Number: ______________________________ Judge: _________________________________ Date Terminated: ______________________

Civil cases are deemed related when Yes is answered to any of the following questions:

1. Is this case related to property included in an earlier numbered suit pending or within one year Yes No previously terminated action in this court?

2. Does this case involve the same issue of fact or grow out of the same transaction as a prior suit Yes No pending or within one year previously terminated action in this court?

3. Does this case involve the validity or infringement of a patent already in suit or any earlier Yes No numbered case pending or within one year previously terminated action of this court?

4. Is this case a second or successive habeas corpus, social security appeal, or pro se civil rights Yes No case filed by the same individual?

Attorney-at-Law / Pro Se Plaintiff Attorney I.D. # (if applicable)

CIVIL: (Place a √ in one category only)

A. Federal Question Cases:

� 1. Indemnity Contract, Marine Contract, and All Other Contracts� 2. FELA� 3. Jones Act-Personal Injury� 4. Antitrust� 5. Patent� 6. Labor-Management Relations� 7. Civil Rights� 8. Habeas Corpus� 9. Securities Act(s) Cases� 10. Social Security Review Cases� 11. All other Federal Question Cases

(Please specify): ____________________________________________

B. Diversity Jurisdiction Cases:

� 1. Insurance Contract and Other Contracts� 2. Airplane Personal Injury� 3. Assault, Defamation� 4. Marine Personal Injury� 5. Motor Vehicle Personal Injury� 6. Other Personal Injury (Please specify): _____________________� 7. Products Liability� 8. Products Liability – Asbestos� 9. All other Diversity Cases

(Please specify): ____________________________________________

ARBITRATION CERTIFICATION (The effect of this certification is to remove the case from eligibility for arbitration

I, ____________________________________________, counsel of record or pro se plaintiff, do hereby certify:

� Pursuant to Local Civil Rule 53.2, § 3(c) (2), that to the best of my knowledge and belief, the damages recoverable in this civil action caseexceed the sum of $150,000.00 exclusive of interest and costs:

� Relief other than monetary damages is sought.

Attorney-at-Law / Pro Se Plaintiff Attorney I.D. # (if applicable)

NOTE: A trial de novo will be a trial by jury only if there has been compliance with F.R.C.P. 38.

Civ. 609 (5/2018)

I certify that, to my knowledge, the within case is / is not related to any case now pending or within one year previously terminated action in this court except as noted above.

DATE: __________________________________ __________________________________________ _________________________________

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DATE: __________________________________ _______________ __________________________ ___________________________________

2101 Chestnut Street, Suite 1615 Philadelphia, PA 191031515 Arch Street, Philadelphia, PA 19102

Philadelphia County, Pennsylvania

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07/06/2020 88363

Colin D. Dougherty, Esquire

07/06/2020 88363

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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

CASE MANAGEMENT TRACK DESIGNATION FORM

: CIVIL ACTION:

v. ::: NO.

In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel forplaintiff shall complete a Case Management Track Designation Form in all civil cases at the time offiling the complaint and serve a copy on all defendants. (See § 1:03 of the plan set forth on the reverseside of this form.) In the event that a defendant does not agree with the plaintiff regarding saiddesignation, that defendant shall, with its first appearance, submit to the clerk of court and serve onthe plaintiff and all other parties, a Case Management Track Designation Form specifying the trackto which that defendant believes the case should be assigned.

SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS:

(a) Habeas Corpus – Cases brought under 28 U.S.C. § 2241 through § 2255. ( )

(b) Social Security – Cases requesting review of a decision of the Secretary of Healthand Human Services denying plaintiff Social Security Benefits. ( )

(c) Arbitration – Cases required to be designated for arbitration under Local Civil Rule 53.2. ( )

(d) Asbestos – Cases involving claims for personal injury or property damage fromexposure to asbestos. ( )

(e) Special Management – Cases that do not fall into tracks (a) through (d) that arecommonly referred to as complex and that need special or intense management bythe court. (See reverse side of this form for a detailed explanation of specialmanagement cases.) ( )

(f) Standard Management – Cases that do not fall into any one of the other tracks. ( )

Date Attorney-at-law Attorney for

FAX Number E-Mail Address

(Civ. 660) 10/02

Telephone

HAPCO

City of Philadelphia and The Honorable James Kenney 2:20-cv-3300

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07/06/2020 Plaintiff

610-397-6500 610-397-0450 [email protected]


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