PHILADELPHIA BAR ASSOCIATION RESOLUTION ADDRESSING URGENT HOUSING ISSUES DURING AND AFTER THE COVID-19 PANDEMIC

WHEREAS, the Philadelphia Bar Association has a long history of supporting legislation and policies that help low-income and vulnerable tenants maintain their housing and provide them with legal representation; and

WHEREAS, the importance of effective legal counsel in assisting tenants has been documented in the 2018 Stout Report commissioned by the Philadelphia Bar Association, and confirmed by the recent Reinvestment Fund Report, which found that:

  1. nearly 90% of tenants cannot afford to hire counsel;
  2. representation by an attorney improves outcomes, by substantially reducing evictions and other disruptive displacements;
  3. for every dollar invested in legal representation for low-income renters facing evictions, Philadelphia avoids more than $12 in medical and social services costs.

WHEREAS, an eviction or disruptive displacement is especially dangerous during the pandemic, since the shelter system is already over-burdened; and

WHEREAS, even before the pandemic, Philadelphia had a landlord-tenant crisis and lacked enough suitable affordable housing; and

WHEREAS, the spread of the COVID-19 disease (COVID or pandemic) is severely impacting the housing market in Philadelphia, which is the largest city in the United States with the highest level of residents in deep poverty; and

WHEREAS, Pennsylvania is receiving billions in federal stimulus funding to alleviate the economic impact of the Governor's Stay-At-Home order, which currently remains in effect in Philadelphia until June 5, 2020, including $12 billion in resources for housing and homelessness, some of which can be allocated for rental and mortgage relief funds to stabilize the housing market; and

WHEREAS, the First Judicial District of Pennsylvania's President Judge Administrative Order (No. 33 of 202), issued on May 15, 2020, and amended on May 21, 2020, provides, in part:

  1. Pursuant to Governor Wolf's May 7, 2020 Executive Order, effective July 10, 2020, the Court of Common Pleas and the Philadelphia Municipal Court shall accept for filing new nonresidential landlord-tenant cases in which the leased property is not a "covered property" under Section 4024 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act").
  2. Effective July 26, 2020, the Court of Common Pleas and the Philadelphia Municipal Court shall accept for filing residential landlord-tenant cases in which the leased property is a "covered property" under the CARES Act. In compliance with the CARES Act, no trial will be scheduled before August 26, 2020.
  3. No final disposition may be entered in ejectment actions filed after March 16, 2020 until July 10, 2020. No hearings will take place before July 10, 2020.
  4. The issuance of residential writs of possession and the execution or enforcement of residential writs of possession which were stayed by orders issued on March 16, 2020 (Nos. 7 and 8 of 2020) and April 22, 2020 (No. 31 of 2020) will resume upon the expiration of Governor Wolf's Stay-At-Home Order to Philadelphia, or July 10, 2020, whichever date is later.
  5. In actions raising landlord-tenant, ejectment and mortgage foreclosure claims filed in the Court of Common Pleas before May 11, 2020, no final disposition may be ordered until July 10, 2020.
  6. Small claims cases other than consumer purchase ("SC/CP") cases may be filed in the Philadelphia Municipal Court's Civil Division beginning May 19, 2020 as follows:

    1. Landlord-tenant cases may also be filed in the same manner as small claims cases subject to the timing set forth in Paragraph 8 above.

WHEREAS, when the Courts re-open to the public, there will be a significant backlog of existing landlord-tenant cases and an onrush of filings of new cases, as follows:

  1. First Wave: There are over 500 eviction cases where the alias writ was already filed, an eviction lockout can occur shortly after the Governor's Stay-At-Home Order expires in Philadelphia, or July 10, 2020, whichever date is 1
  2. Second Wave: There are many more cases which are similar, where the hearing already occurred and a judgment for the landlord has been entered, but no alias writ has yet been issued. These cases would be able to have lockouts scheduled a few weeks after the expiration of the Governor's Stay-At-Home Order, or July 10, 2020, whichever is later.
  3. Third Wave: There are 1,700 pending eviction cases in Municipal Court that were filed prior to the Governor's Stay-At-Home Order and the requested hearing dates have not yet been scheduled.

WHEREAS, it is critically important for the health and safety of those using the Courts that the Pennsylvania Department of Health issue guidelines that should be in place prior to re-opening the Courts to the public and that the Courts establish procedures and implement practices that follow applicable federal and state guidelines determined by medical and public health best practices from time to time, which for the Municipal Court that hears landlord-tenant cases, are likely to include initial precautions such as:

  1. Taking temperatures prior to entry;
  2. Providing masks to those without masks to avoid imposition of a default judgment;
  3. Providing hand sanitation stations in public areas;
  4. Ensuring that proper social distancing can occur, including sufficient space for minor children if school is not in session and daycare is not available;
  5. Installing remote kiosks in the lobby so litigants can check-in to avoid default judgments, given the limitation on numbers of people in elevators and anticipated delays caused by social distancing when people are screened and checked-in;
  6. Making physical changes such as installing plexiglass partitions in areas where social distancing is not possible, such as courtrooms, negotiating areas, and waiting areas; and
  7. Cleaning and disinfecting highly touched surfaces frequently throughout the day and all surfaces daily.

WHEREAS, due to economic and/or medical hardships for tenants and unrepresented landlords, the Municipal Court should adopt procedures to ensure health and safety for litigants and court personnel, and which will also promote housing stability and decrease disruptive displacement, including:

  1. Issuing clear instructions to litigants who cannot appear in Court due to health-related reasons on how to request automatic continuances in advance by telephone or electronically, and issue such continuance decisions promptly, so litigants can plan accordingly;
  2. Using the initial hearing date to status cases, including by telephone or advanced communications technology, so parties do not have to appear, which can allow time to obtain rent relief funding, resolve the case, or schedule a protracted hearing;
  3. Establish a process to submit judgments by agreement electronically before or between court listings to reduce the number of cases heard each day;

WHEREAS, fair administration of justice, even in the time of a pandemic, cannot be infringed upon, changes to court procedures must include notice and due process that ensures fair hearings, including:

  1. The Court should issue public notices and widely disseminate information regarding any new court procedures, so the public is aware of the changes;
  2. The Court should require an affidavit and supporting documentary proof that a landlord does not have a federally backed mortgage with any eviction case filed prior to July 25, 2020, to insure compliance with the CARES Act (see attached sample affidavit and documentary proof attached as exhibit A);
  3. Due to the time lag since some eviction orders were entered, the Court should send supplemental notices, including the date of the lockout, to tenants prior to an alias writ being served so that tenants can be prepared;
  4. The Court should delay execution of all alias writs until July 10, 2020;
  5. The Court should delay all eviction hearings until the Philadelphia Department of Licenses and Inspections and the Fire Department resume making home inspections, and other institutions re-open, so that tenants raising habitability and other defenses can do so;
  6. The Court should allow the City-funded Philadelphia Eviction Prevention Program's Courtroom Navigator and Lawyer of the Day program to continue in operation to support pro se litigants and tenants during court hearings; and,
  7. Any changes in Courtroom procedures designed to accelerate case dispositions and eliminate backlogs should not impose artificial time limits on hearings; and
  8. The Court should not impose use of advanced communications technology on litigants who do not have access to the technology or familiarity with the technology, or allow one party to participate by telephone and the other party by advanced communications technology, which could disadvantage the litigant on the phone.

WHEREAS, the First Judicial District, working with City officials, lenders, legal services and public interest legal organizations, and other stakeholders have a national reputation of being at the forefront of solutions to meet the challenges of extraordinary crises, including the launch in 2007 of the Mortgage Foreclosure Diversion Project that to date has prevented more than 14,000 foreclosures for struggling homeowners; and

WHEREAS, the creation of a similarly inspired remote landlord-tenant diversion project by the Municipal Court, with state and local rental assistance funding for those impacted by the COVID pandemic as well as support and access to resources for both tenants and landlords, could be structured as a collaborative project modeled on the mandatory mortgage foreclosure diversion program; and

WHEREAS, it is imperative that the City continue funding for the Philadelphia Eviction Prevention Project and also provide robust funding to implement legal assistance for the City's right-to-counsel ordinance.

NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association authorizes the Chancellor and/or the Chancellor's designee(s) to communicate the Philadelphia Bar Association's commitment to justice and fairness in the Philadelphia Court system, advocate for the rights of all litigants to notice and due process in light of changes in court hearing due to the COVID-19 pandemic, and urge the Courts to implement the following in response to the impact of the COVID-19 pandemic:

  1. Take measures guided by medical and health and safety requirements to protect the health and safety of litigants, judges and court personnel as set forth above in this resolution; and
  2. Make procedural and policy changes to accommodate litigants impacted by the COVID-19 pandemic as set forth above in this resolution; and
  3. Work with stakeholders to establish a landlord/tenant diversion program similar to the mandatory First Judicial District's Mortgage Foreclosure Diversion Program.

AND BE IT FURTHER RESOLVED, that the Philadelphia Bar Association authorizes the Chancellor and/or the Chancellor's designee(s) to advocate for continued funding for the Philadelphia Eviction Protection Program and to implement the City's Right to Counsel Ordinance, and to ensure that the Courts permit the City-funded Philadelphia Eviction Prevention Program's Courtroom Navigator and Lawyer of the Day program to continue in operation to support pro se litigants and tenants during court hearings.

AND BE IT FURTHER RESOLVED, that the Chancellor and/or the Chancellor's designee(s) shall communicate the Philadelphia Bar Association's position to the Courts, the General Assembly, the Governor, the Attorney General, the City of Philadelphia, the legal profession, the media, and the public and take whatever additional action is necessary to effectuate this resolution.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
Adopted: May 28, 2020


1Most of these cases are for nonpayment of rent only and the tenants could exercise their right to "Pay and Stay" and stop the eviction. Even the cases where it is for nonpayment and termination of term/breach, landlords may be willing to agree to let the tenants remain if they became current in their rent and could afford ongoing rent.