With eviction avalanche looming, court documents fail to ensure due process for tenants | Editorial
A flaw in the Philadelphia eviction system uncovered by this board in July and has yet to be addressed is set to make an anticipated avalanche of evictions more harmful and disruptive.
Eviction has been a constant threat throughout the pandemic, not just for tenants hit by lost jobs, but for the state of public health as a whole, since it’s impossible to shelter in place or quarantine without a home. Recognizing this, in March 2020, the state Supreme Court imposed a moratorium on evictions. When that moratorium expired in May, Gov. Tom Wolf imposed a moratorium that has been extended through Aug. 31. In September, the Centers for Disease Control and Prevention imposed a nationwide moratorium that will remain in effect through the end of March.
In September, Philadelphia Municipal Court, where such cases are heard, imposed its own ban on the execution of evictions, also slated to expire at the end of next month. None of this means that eviction proceedings have fully stopped. The current order prevents lockouts, but landlords can request an exemption if the reason for eviction is not related to payment of rent but for breach of agreement such as criminal activity on the property.
It also does not entirely halt the eviction process. The court has continued to hold hearings and issue writs of possession, the final notice for tenants before they are locked out. After a pause on service of final notice, in January, the court allowed the Landlord Tenant Officer, the court-appointed firm that executes evictions, to continue serving writs of possession. When the moratorium expires, those tenants could be locked out imminently. Black households are most at risk of eviction.
A flaw in the Philadelphia eviction system uncovered by this board in July and yet to be addressed is set to make an anticipated avalanche of evictions more harmful and disruptive.
In July, this board revealed that tenants claimed they were being evicted without receiving the all-important final notice, leaving them without shelter and robbing them of their right to “pay-and-stay.” Because the court memorializes in the case docket all the steps except the service writ of possession, there was no way to prove that the final notice was served. In September the court did start to include copies of signed writs of possession to the docket.
The writs, however, are lacking critical information required by state law and court rules.
To ensure due process, state and federal law, and court rules require “return of service” or “affidavit of service” — a document signed by the server under penalty of perjury that includes the information about the location, date, time, and manner of service. Philadelphia Municipal Court even has a document that requires all of this information for the service of the initial landlord complaint that informs the tenant that an eviction proceeding started. But that doesn’t happen for the final notice.
In an extensive review of court records, we identified 60 instances in which a return of service for the final notice was included in the docket last fall. None of those writs included the time of service or the manner — whether handed to a person or posted on the property — as law and court rules require.
The Pennsylvania Landlord and Tenant Act requires the writ server to return the writ to the court with “the date, time, place and manner of service of the writ.” Municipal Court’s rules add that the information should be sufficient “to determine whether or not proper service has been made.”
According to Landlord Tenant Officer Marisa Shuter, whose employees serve these notices, the time and method of service are not included because “the court-generated form does not ask for that information.” A Municipal Court spokesperson declined to comment on how the information on the writs satisfies state law or court rules.
In September, City Council authorized hearings about proper service of the final notice. The looming expiration of the moratorium should add urgency to scheduling the hearing.
Proper service is an extremely important part of any legal proceeding. Without reliable service, defendants don’t get their day in court . Proof of service is the only way to guarantee due process in this part of the eviction. That is why Philadelphia Municipal Court must ensure that the private firm that executes evictions meets all obligations of due process. Using a GPS to have a location and time stamp of the moment of service would be ideal — but writing down the details required by law would be a start.