Guilermina Ruiz v. New Garden Township

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 02-4434
GUILERMINA RUIZ; RODOLFO
VILLAGOMEZ; ANTONIO LOPEZ;
ANTONIO ORTIZ; RAFAEL LUNA;
ANGELICA SANCHEZ;
JOSE J. PADRON; and J.
GUADALUPE LOPEZ
v.
NEW GARDEN TOWNSHIP; ROBERT
N. TAYLOR, III; WILLARD H.
SMEDLEY;
PATRICK J. KENNEY; NORMAN S.
NUNN; FRANK J. ZAGORSKIE;
THE ZONING HEARING BOARD OF
NEW GARDEN TOWNSHIP;
DAVID CARLIN; ANGELO ZUNINO;
JAMES DILUZIO,
Appellants
DANTE DIUBLADO; LUCY M.
DIUBLADO, (Intervenors in D.C.)
On Appeal from the United States
District Court
for the Eastern District of Pennsylvania
(Civil Action No. 01-CV-5081)
District Judge: Hon. Anita B. Brody
Argued: December 15, 2003
Before: ROTH, McKEE, and ROSENN,
Circuit Judges.
(Opinion Filed: July 26, 2004)
ARTHUR W. LEFCO, ESQ. (Argued)
JAMES W. GICKING, ESQ.
Marshall, Dennehey, Warner, Coleman
& Goggin
1845 Walnut Street, 17th Floor
Philadelphia, PA 19103-4717
Attorneys for Appellants
ROBERT F. SALVIN, ESQ. (Argued)
Community Impact Legal Services, Inc.
419 Avenue of the States
Crozer Building, Suite 201
Chester, PA 19013
Attorney for Appellees
OPINION OF THE COURT
McKEE, Circuit Judge.
We are asked to review an order of
the district court enjoining New Garden
Township and its employees (“the

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2
Township”) from enforcing a zoning
enforcement notice that would have
resulted in the eviction of plaintiff
tenants.1 The plaintiffs requested the
injunction pursuant to 42 U.S.C. § 1983
arguing that the Township had violated
their Fourteenth Amendment right to
procedural due process in failing to notify
them of a zoning hearing into whether
their landlord was violating certain zoning
ordinances by allowing mobile homes on
property not zoned for residential use. We
agree that plaintiffs have not established a
procedural due process violation, and we
will therefore reverse.
I. FACTS AND PROCEDURAL
HISTORY
Since the 1990s, plaintiffs
Guillermina Ruiz, Rodolfo Villagomez,
Antonio Lopez, Antonio Ortiz, Rafael
Luna, Angelica Sanchez, Jose J. Padron
and J. Guadalupe Lopez have been tenants
in mobile homes located at 320 Ellicott
Road in New Garden Township ,
Pennsylvania. Since 1989, that property
has been designated as a C-I-2 Limited
Commercial Industrial District.2
The plaintiffs paid rent in the
amount of $500 to $600 per month
pursuant to oral leases with Dante and
Lucy DiUbaldo.3 It is uncontested that
DiUbaldo agreed that at least one of the
tenants could remain on the property for
up to three years and that DiUbaldo would
decide how long the tenant would have to
vacate the property if he decided to leave.
On June 22, 2000, the Township
issued an enforcement notice citing
DiUbaldo for violations of the township’s
zoning ordinance. The violation resulted
from the presence of the plaintiffs’ mobile
homes on the property located at 320
Ellicott Road. The zoning notice was
issued because the light industrial zoning
designation of that property did not allow
the property to be used as a trailer park.4
1 The defendants also ask us to
reverse the district court’s decision to
deny its motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6) and order that
the action be dismissed with prejudice.
The record before us regarding the
disposition of the motion to dismiss is
unclear. The district court mentions it in
its opinion in support of issuing the
permanent injunction but does not
explicitly state that it denied the motion
or explain why it denied the motion. Nor
does the motion appear on the district
court docket included in the record on
appeal. As a result, we feel that the
district court would be better equipped to
revisit its decision and the state of this
claim on remand.
2 The property contains “mushroom
houses.”
3 We will refer only to Mr. DiUbaldo
in the rest of the opinion because he
managed the property.
4 The property became part of the C-I-
2 Limited Commercial Industrial District
when it was re-zoned in 1989, but had
been zoned as residential beforehand.

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3
The notice required DiUbaldo to begin
removing the mobile homes within 10 days
and to complete the process within 45
days. The notice also informed him that
he could appeal the enforcement action to
the New Garden Township Zoning
Hearing Board (“ZHB”).
DiUbaldo did appeal, and hearings
were held on November 15 and December
13, 2000, before the ZHB. None of the
tenants participated in that appeal although
notice of the hearings was apparently
posted on the Ellicott Road property. The
ZHB denied DiUbaldo’s appeal on January
22, 2001, but it altered the terms of the
aforementioned enforcement order.
DiUbaldo was ordered to give the tenants
notice to quit the property by March 1,
2001 and he was ordered to remove the
mobile homes by July 2001.5
As instructed, DiUbaldo served the
notices to quit on the tenants around
March 1, 2001. Plaintiff Lopez testified
that this was when he first learned that the
Township was enforcing the zoning
ordinance and the effect it would have on
him. Plaintiff Luna testified that he did
not learn of the situation until after the
hearing. Despite the notice to quit, the
tenants failed to vacate the property by
July 2001, and DiUbaldo thereafter
initiated eviction proceedings against
them. As a result of those proceedings, a
local magistrate eventually ordered the
plaintiffs’ eviction.
The tenants then filed this action in
the U.S. District Court for the Eastern
District of Pennsylvania seeking to enjoin
the ZHB’s order requiring DiUbaldo to
serve them with notices to quit. They
argued that, given their property interest,
they were entitled to notice of the
proceedings before the ZHB. They
claimed that the Township’s failure to
notify them of those hearings violated their
right to procedural due process under the
Fourteenth Amendment.6 As we noted at
the outset, the district court agreed and
granted a permanent injunction. This
appeal followed.
II. JURISDICTION AND
STANDARD OF REVIEW
5 Although DiUbaldo served the
notices to quit on the plaintiffs pursuant
to the enforcement notice that issued
after he lost his appeal before the ZHB,
he also filed a conditional use application
with the New Garden Board of
Supervisors. At the hearings before the
Board of Supervisors, he argued that the
mobile homes were a permissible
expansion of a pre-existing
nonconforming use because one of the
mobile homes was placed on the property
before 1989 when the property was re-
zoned. It is undisputed that the tenants
were properly given notice of these
hearings, and that some of them attended
the hearings. The Board of Supervisors
denied his application.
6 They also argued that some of the
procedural safeguards that due process
required were codified in the hearing
notification guidelines at 53 Pa. Stat.
Ann. § 10616.1 (2003).

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The district court’s final order
granting a permanent injunction is
appealable under 28 U.S.C. § 1291.
Ameristeel Corp. v. Int’l Bhd. of
Teamsters, 267 F.3d 264, 267 (3d Cir.
2001). We have jurisdiction over the
section 1983 claim under 28 U.S.C. §
1331, and we have supplemental
jurisdiction over concomitant state law
issues under 28 U.S.C. § 1367. “We
review a district court’s decision to grant
or deny a permanent injunction under an
abuse of discretion standard. However,
because an abuse of discretion exists
where the district court’s decision rests
upon a clearly erroneous finding of fact, an
errant conclusion of law, or an improper
application of law to fact, we apply
plenary review to the District Court’s legal
conclusions.” Ameristeel, 267 F.3d at 267
(internal quotation marks and citations
omitted).
III. DISCUSSION
In order to satisfy the requirements
for a permanent injunction, plaintiffs must
establish that they will ultimately succeed
on their claim. Shields v. Zuccarini, 254
F.3d 476, 482 (3d Cir. 2001). In order to
prevail on their section 1983 claim,
plaintiffs must establish that persons acting
under color of law deprived them of a
protected property interest without due
process of law. Midnight Sessions et al. v.
City of Philadelphia, 945 F.2d 667, 680
(3d Cir. 1991).
State law defines property interests
for purposes of procedural due process
claims. See Bd. of Regents v. Roth, 408
U.S. 564, 577 (1972). The parties agree
that, under Pennsylvania law, leaseholders
have the same right to possession of real
estate as an owner during the term of the
lease. The district court found that the
plaintiffs had a protected property interest
in the form of oral month-to-month leases
because the conduct between the parties
established that the plaintiffs each had a
month-to-month lease. However, we hold
that, even if plaintiffs did establish a
protected interest based upon their
leasehold estates, they were nevertheless
not denied procedural due process because
the procedure utilized by the ZHB was not
constitutionally infirm.
“In Pennsylvania, if the landlord
and tenant have failed to specify a definite
period of time for the lease to continue, the
court may imply the type of tenancy
indicated by the conduct of the parties.”
RONALD M. FRIEDMAN, PA. LANDLORD-
TENANT LAW AND PRACTICE § 1.10 (3d
ed. 2004). The tenants were required to
pay about $500 to $600 monthly, and such
monthly rental payments generally support
the existence of a month-to-month
tenancy. See RESTATEMENT (SECOND) OF
PROPERTY § 1.5 (2003) (“Where the
parties enter into a lease of no stated
duration and periodic rent is reserved or
paid, a periodic tenancy is presumed. The
period thus presumed is equal to the
interval for which rent is reserved or paid
to a maximum periodic tenancy of year to
year.”).
However, “[t]he presumption that a
periodic tenancy is intended may be
rebutted by language or circumstances

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showing a contrary intent.” Id. The record
here contains unchallenged evidence that
the plaintiffs could terminate their leases at
any time, and that DiUbaldo would then
decide how long tenants had to vacate their
premises following such termination.
Thus, the landlord or tenant could end the
tenancy abruptly at any time even though
the rent was calculated and paid monthly.
Since the tenancies were “for an uncertain
or indeterminate term which is terminable
at the volition of either landlord or tenant,”
plaintiffs arguably had interests analogous
to tenancies at will rather than month-to-
month tenancies. P.L.E. 2d LANDLORD
AND TENANT § 74.7 Although the tenants
paid rent on a monthly basis, there is no
evidence that the plaintiffs and DiUbaldo
explicitly agreed to month-to-month
leases, and the district court does not
explain how it concluded that these were
month-to-month leases as opposed to
tenancies at will.
However, since the Township now
agrees that tenants had month-to-month
leases, we will proceed as if they did. See
Brief at 23 (“as month-to-month tenants,
plaintiffs had no legitimate expectation to
continued possession of property . . .”).8
Moreover, under Pennsylvania law, any
tenancy creates a property interest. Berrios
v. City of Lancaster, 798 F. Supp. 1153,
1157 (E.D. Pa. 1992) (stating that
Pennsylvania law regards any lease as a
property interest); see also Ward v.
Downtown Dev. Auth., 786 F.2d 1526,
7 See Heck v. Borda, 6 A. 392, 393
(Pa. 1886). There, the Pennsylvania
Supreme Court reversed a trial court’s
holding that a lease established a tenancy
at will, finding instead that the lease
established a year-to-year tenancy. The
Heck Court found that the parties
intended to create a tenancy from year-
to-year because the written lease stated
that the tenancy would last as long as a
yearly royalty was paid. Id. Because the
lessor had express authority to terminate
the lease in certain events, the court
believed this authority tended “to exclude
the inference” that both parties had the
power to terminate it at will, which is a
necessary element of a tenancy at will.
Id. The court also held that a provision
requiring the landlord to spend a certain
amount to put the property in working
order further established that the parties
did not intend to create a tenancy at will.
Id. Although the leases here also include
a periodic payment of rent, they
expressly provide that either party can
terminate them at any time. Unlike the
lease in Heck, they do not limit the right
to abruptly terminate to only one party,
nor do these oral leases have any terms
suggesting that a future relationship is
expected. The lease in Heck required the
landlord’s investment in the leased
property.
8 The plaintiffs also argue that their
leases were year-to-year, but this
argument is waived because the plaintiffs
raised it for the first time on appeal. See
Gass v. V.I. Telephone Corp., 311 F.3d
237, 246 (3d Cir. 2002).

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1529 (11th Cir.) (discussing how Florida
law makes any tenancy a compensable
property interest for purposes of Fifth
Amendment public takings).
However, the plaintiffs’ property
interest here is tenuous at best because any
such interest appears to have been created
in violation of a zoning ordinance. Cf.
Puleo v. Zoning Hearing Board of
Schuykill Township, 722 A.2d 789 (Pa.
Commw. 1999) (holding that property
owners could not retain a structure on their
property because they built the structure in
violation of a zoning ordinance and
another municipal ordinance).9
However, given the facts here, we
need not decide whether plaintiffs had a
cognizable property interest because even
if they did, it is clear that they had no
reaso nable expectation of future
occupancy beyond the period which the
landlord might agree to in the event of
termination.10 As noted, that period was
undefined and left completely to the
discretion of the landlord. However,
Pennsylvania law requires that tenants be
given at least 30 days’ notice of
termination. 68 Pa. C.S.A. § 250.501(c)
(2001). Accordingly, it appears that the
tenants could reasonably expect no more
than present enjoyment of their leased
premises and 30 days additional occupancy
upon notice that their landlord decided to
terminate any of their leases. See Ward,
786 F.2d at 1529 (stating in dicta that
legally sufficient notice to vacate would
terminate a tenant’s interest as of the end
of the notice period).11
9 Judge Rosenn’s analysis begins with
the conclusion that “[i]t is undisputed
that neither the landowner nor the
plaintiff-renters have complied with any
of [the applicable zoning] codes.”
Concurring Op. at 3. It then proceeds
governed by the principle that “the
unlawful occupation of the rental
property by the plaintiff-renters has
vested no property right in them.” Id. at 5
(citing Puleo). However, the plaintiff-
renters are complaining that they had no
opportunity to appear at the zoning
hearing that found their property to be in
violation and therefore could not defend
against that allegation. Inasmuch as it
appears that the trailers in question are
the only homes the plaintiffs have, their
interest in defending against the
violations was at least as strong as that of
DiUbaldo, the absentee owner.
Accordingly, an analysis that begins and
ends with charging the plaintiffs with the
outcome of the zoning hearing does not
adequately respond to the legal challenge
implicit in plaintiffs’ appeal.
10 Cf. U.S. v. Petty Motor Co., 327
U.S. 372 (1946). Petty held that a tenant
can not have an expectation to remain on
property following condemnation for
public use given an express term in the
lease to relinquish all rights upon such
condemnation. Id. at 376.
11 The tenants in Ward had a protected
property interest beyond that period of
notice and, based on that, a right to
procedural due process because the state

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The ZHB ordered DiUbaldo to
notify the tenants of its ruling by March 1,
2001, and to remove the mobile homes
from the property by July 1, 2001. Thus,
from the time the tenants first heard of the
necessity of leaving the premises, they had
four months to depart. Their claimed
property interest, however, entitled them to
only 30 additional days of tenancy after the
notification by the landlord of termination
of the lease. Thus, the actions of the ZHB
could not have deprived the tenants of any
property interest to remain on the
premises. In fact, the ZHB ruling gave the
tenants more notice of termination than
they would otherwise have been entitled
to. Accordingly, there could not have been
an unconstitutional taking of a protected
property interest.12
C. Notice
Because the plaintiffs were not
deprived of a protected property interest in
their leases, the Constitution did not
mandate that they receive notice of the
hearing before the ZHB, and the district
court’s conclusion to the contrary can not
stand.
The plaintiffs also argue that the
Pennsylvania Municipalities Planning
Code (“MPC”) gives them a right to
notice. However, we are not persuaded.
The MPC requires localities to send an
enforcement notice to “the owner of record
of the parcel on which the violation has
occurred, to any person who has filed a
written request to receive enforcement
notices regarding that parcel, and to any
other person requested in writing by the
owner of record.” 53 Pa. Stat. Ann. §
10616.1 (2001). A lessee is treated as an
owner under section 10616.1 only “if he is
authorized under the lease to exercise the
rights of the landowner” or otherwise has
a proprietary interest in the land. 53 Pa.
Stat. Ann. § 10107 (2001). The plaintiffs
meet none of these conditions precedent to
agency that acquired the property and
displaced the tenants did not meet the
“conditions set forth in the legislative
grant of its authority,” including holding
hearings on the hardship that the tenants
would endure if they were displaced. Id.
at 1532.
12 At oral argument, the plaintiffs
cited Schuykill Township v. Overstreet,
454 A. 2d 695 (Pa. Commw. Ct. 1983),
as support for its contention that
plaintiffs’ leases entitled them to be
present at the ZHB hearing. But
Overstreet held only that tenants had to
be joined in an action to enforce an
already-issued order terminating their
rights to possess the rental property. Id.
at 695-96. It says nothing about whether
the tenants had a right to be present for
the determination of their right to
continued possession of a rental property
that was violating zoning ordinances. Cf.
City of New Orleans v. Buffa, 69 S.2d
140, 140-41 (La. App. 1953) (bringing
an action against landlord and tenant to
enjoin the tenant’s use of the premises in
violation of city zoning ordinances; this
case was also cited by the plaintiffs at
oral argument).

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getting notice under section 10616.1.
There is nothing in the record even
suggesting that they were authorized to
exercise the DiUbaldos’ rights as property
owners, that they had anything remotely
resembling a proprietary interest in the
property, or that the DiUbaldos requested
that they receive notice of zoning
violations. Therefore, the district court
properly held that the MPC did not
mandate that plaintiffs be given notice of
zoning violation enforcement. However,
the court went further and concluded that
the MPC was unconstitutional as applied
because it did not mandate notice to the
plaintiffs. We have already explained why
plaintiffs are not constitutionally entitled
to notice. Accordingly, we must reverse
the district court’s ruling that the MPC is
unconstitutional as applied to them.13
IV. CONCLUSION
For all of the above reasons, we
will reverse the district court’s order
granting a permanent injunction.
ROSENN, Circuit Judge, Concurring.
I concur in the judgment reversing
the District Court’s decision. I write
separately, however, because I cannot
agree with the majority’s analysis based on
an assumption that the plaintiffs have a
protected property interest. I also believe
due process analysis is unnecessary to the
disposition of this case.
I.
Where, as here, there is a claim of
an alleged deprivation of property without
due process, a two-part inquiry is required.
Kovats v. Rutgers, 749 F.2d 1041,
1047 (3d Cir. 1984), cert. denied sub nom.
Varma v. Bloustein, 489 U.S. 1014 (1989)
(citing Logan v. Zimmerman Brush Co.,
455 U.S. 422, 428 (1981)).
The first question is whether
the plaintiff[s] [w ere]
deprived of a protected
property interest. Property
interests, while protected by
t h e [ U n i t e d S t a t e s ]
Constitution, are not created
by the Constitution. “Rather
they are created and their
dimensions are defined by
e x i s t i n g r u l e s o r
understandings that stem
from an independent source
such as state law.” Board of
Regents v. Roth, 408 U.S.
564, 577, 92 S. Ct. 2701,
2709, 33 L.Ed.2d 548
13 In doing so, we do not suggest that
we are insensitive to the situation of the
plaintiffs. It appears from everything on
this record that these tenants are migrant
farmers with few if any alternatives to
the plight in which they found
themselves.

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(1972); see also Leis v.
Flynt, 439 U.S. 438, 441, 99
S. Ct. 698, 700, 58 L.Ed.2d
717 (1979). The definition
of property, therefore, may
turn in some cases on a
question of state law. If a
property interest is found to
e x i s t , t h e s e c o n d
question—what process is
due— is a matter of federal
law. Memphis Light, Gas &
Water Division v. Craft, 436
U.S. 1, 98 S. Ct. 1554, 56
L.Ed.2d 30 (1978); see
Logan, 455 U.S. at 432, 102
S. Ct. at 1155.
Kovats, 749 F.2d at 1047. However, “[i]f
there is no property interest, there can be
no valid due process claim.” Id.
Where, as here, it is undisputed that
a residential rental use of the property at
issue was set up by the landowner in
violation of state, county, and municipal
laws, such use was null and void ab initio
under Pennsylvania law. The landowner
had acquired no vested property interest in
his unlawful rental use of the property.
The plaintiff-tenants, whose interest was
derivative and at most coextensive with
the landowner’s interest, had acquired no
vested property interest either in the same
rental use of the property. Where there is
no property right, there can be no viable
due process claim as a matter of law.
Where the plaintiffs’ due process
claim fails as a matter of law under the
first part of the two-part inquiry set forth
in Logan, 455 U.S. at 428, which is a
matter of state law, the second part of what
process is due, or not due, which is a
matter of federal law, is irrelevant. Where
the plaintiffs’ claim can be adjudicated as
a matter of state law, we should not engage
in any unnecessary constitutional due
process analysis. Neese v. Southern
Railway Co., 350 U.S. 77, 78 (1955).
The record in this case establishes
that the landowner unlawfully installed the
eleven mobile homes/trailers, without
having obtained the required permits from
the state, county, and municipal authorities
and in violation of state and local (zoning)
laws. These laws and ordinances were
enacted to promote the health, welfare, and
safety of not only the tenants, but also the
general public in the community. For
instance, the sewage permits are intended
to protect the public against diseases. The
issue, overlooked by the District Court and
the parties in dispute, is whether a private
rental arrangement between the landowner
and the plaintiffs executed and operated in
violation of state and local laws can ever
give rise to constitutionally protected
property interests.14 We consider the issue
sua sponte because of the “traditional
practice of . . . refusing to decide
constitutional questions when the record
discloses other grounds of decision,
whether or not they have been properly
raised . . . by the parties.” Neese, 350 U.S.
14 The Township’s briefs, particularly
its reply brief, have touched on the issue,
but failed to develop its argument.

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10
at 78.
It is not disputed that the Zoning
Hearing Board found, following a hearing
attended by the landowner, that he had
violated local zoning laws and the state
statutes regarding health, safety, and real
estate regulation in installing the mobile
homes/trailers and that the landowner did
not appeal the decision. The Board’s
findings of violations are conclusive now.
The Township asserts that it had placed
valid zoning restrictions at least a decade
before any of the eleven mobile
home/trailers were placed on the land at
Elliot Road, New Garden Township,
Pennsylvania, which precluded the present
residential use by the plaintiffs. Even if
assuming that the owner had obtained a
variance for residential use of his land,
which is not the case here, residential use
of his land would still have required the
landowner to prepare a land development
plan, obtain a conditional use permit,
sewage and other permits required by the
Township ordinances for any residential
development before the owner could lease
his property and the plaintiffs could
occupy the property.
The Township solicitor testified in
the District Court, and it is undisputed, that
before the mobile homes were placed on
the property, the owner had not obtained
the required “sewage permit from the
County Health Department for that mobile
home park.” He also testified that
installation of a sewage system would
interconnect with the township sewer
plant, as required. He further stated that
the Township required a use and
occupancy permit before the owner could
install the mobile home/trailers on his
property and rent them to the plaintiffs.
The Township solicitor testified also that
the owner was required to comply with the
state and county health and safety codes
governing uses of electrical and
construction anchoring. It is undisputed
that neither the landowner nor the
plaintiff-tenants have complied with any of
those codes. Nor have they applied for
and obtained any health and safety permits
necessary for the residential use of the
property.
Rental operation in Pennsylvania is
governed and regulated by state, county,
and municipal laws. See Kelly v. Borough
of Sayreville, N.J., 107 F.3d 1073,
1077 (3d Cir. 1997) (“State law creates the
property rights protected by the Fourteenth
Amendment.”). Because the mobile
homes/trailers were installed and operated
in violation of those laws, their use as
rental property by either the landowner or
the plaintiff-tenants is also unlawful. Thus,
their rental agreement is likewise unlawful
and invalid. See generally Puleo v. Zoning
Hearing Bd. of Schuylkill Township, 722
A.2d 789, 791 n.4 (Pa. Commw. Ct. 1999)
(quoting Black’s Law Dictionary 1536
(6th ed. 1990) (an “unlawful” act is
“acting contrary to, or in defiance of the
law”; “unlawful” agreements are
“ineffective in law, for they involve acts
which, though not positively forbidden, are
disapproved by law and are therefore not
recognized as ground of legal rights
because they are against public policy”));
6 Williston on Contracts 24 (4th ed. 1995)

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([O]ne who has participated in a violation
of the law will not be allowed to assert in
court any right based upon or directly
connected with the illegal transaction.”)
(citing federal and state case law));
Highpoint Townhouses, Inc. v. Rapp, 423
A.2d 932, 935 (D.C. 1980) (“[A] contract
made in violation of a licensing statute that
is designed to protect the public will
usua lly be con sidered void and
unenforceable.”) (internal quotation marks
omitted) (quoting Truitt v. Miller, 407
A.2d 1073, 1079 (D.C. 1979)).
In Puleo, a new owner of a piece of
real estate property, located in a “limited
industrial zone,” had a dispute with a
company as to the ownership of two
billboards that it had installed. It was
undisputed that the billboards constituted
lawful nonconforming use. The company
ended the dispute by cutting down the
billboards with a chainsaw; there was no
question that its act was knowing and
intentional. Several months later, “without
first securing a building permit,” the new
owner “reconstructed the billboards.”
Puleo, 722 A.2d at 790. The town denied
the owner’s application after the fact for a
building permit. The town’s zoning board
also denied the owner’s request to
continue the nonconforming use of the
billboards because they were not
“involuntarily” damaged and no building
permit was secured within one year of
their destruction within the meaning of the
local ordinance. A Pennsylvania trial
court affirmed the board’s decision.
O n f u r t h e r a p p e a l , t h e
Commonwealth Court, a special state
appellate court, noted that the owner did
not challenge the validity of the zoning
ordinance, but instead argued that its
physical reconstruction of the billboards
within a year of their destruction should be
deemed to be in compliance with the
ordinance and in continuation of the
previous lawful nonconforming use. Id. at
791. The appellate court rejected the
argument, concluding that the case was
analogous to “an instance where a
landowner applie[d] for and secure[d] a
building permit through misrepresentation
or fraud.” Id. (citing D’Emilio v. Bd. of
Supervisors, 628 A.2d 1230 (Pa. Commw.
Ct. 1993)). “It follows, therefore, that if a
person who applies for and secures a
building permit through fraudulent means
acquires no rights in the structure, then a
person who completely ignores the
requirement of securing a building permit
altogether also cannot acquire any vested
right in the structure.” Puleo, 722 A.2d at
791 (emphasis added). The court
concluded that the owner’s “failure to
obtain a building permit, therefore, made
the effect of its reconstruction a nullity.”
Id. at 792 (emphasis added).
The violation in this case is much
more flagrant than in Puleo. The owner in
Puleo was at least trying to replace the two
destroyed billboards that had been
previously lawfully installed. In this case,
the eleven trailer/mobile homes were
installed not to replace any previous lawful
use; they we re installed without
permission, and without the knowledge of
the Township, in knowing violation of

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state, county, and local laws.15 Under the
holding of Puleo, a landowner who
completely ignores the requirements of
state and local laws cannot have acquired
any vested right in the rental use of his
property. Similarly, the unlawful
occupation of the rental property by the
plaintiff-tenants has vested no property
right in them. To rule otherwise, as did the
District Court, would be to fashion a
property right that is not recognized
under— and contrary to—state law.
The tenants here do not, and cannot,
have greater right than that of the owner
with regard to the rental property. See,
e.g., Adams Outdoor Advertising v. City
of East Lansing, 614 N.W.2d 634, 639
(Mich. 2000) (“It is fundamental property
law that a lessor can transfer no greater
rights than he possesses”; lessees’ interest
rights are limited to those possessed by the
lessor.); State v. Vaughan, 319 S.W.2d
349, 354 (Tex. Civ. App. 1959)
(“[T]enants who occupy the property have
no greater right than the owners.”); Smith
v. Woolery, 137 N.E.2d 632 (Ohio Ct.
App. 1955); Wilmington Housing Auth. v.
Nos. 500, 502, and 504 King St., and Nos.
503, 505, and 507 French St., Commercial
Trust Co., 273 A.2d 280, 281 (Del. Super.
Ct. 1970).16
15 The landowner has not claimed
mistake or ignorance.
16The cases cited by the tenants with
respect to their standing to apply for a
zoning variance, to bring a condemnation
action, or to challenge their eviction
because of health and living conditions
are inapposite. Because the alleged
leasehold interest in this case is legally
non-existing, this case is materially
different from those cases where lessees
with lawfully constituted leasehold
interests challenge condemnation or
zoning ordinances that affect their
property interests. See, e.g., Richman v.
Philadelphia Zoning Bd. of Adjustment,
137 A.2d 280, 283 (Pa. 1958) (a long-
term commercial lessee had standing to
apply for a use variance); Nicholson v.
Zoning Bd. of Adjustment, 140 A.2d
604, 606 (Pa. 1958) (same); Mobil Oil
Corp. v. Zoning Hearing Bd. of
Tredyffrin Township, 515 A.2d 78, 79
(Pa. Commw. Ct. 1986).
For the same reasons, all the case
law regarding whether tenants have
standing to bring a condemnation action,
alleging unlawful taking effected under a
zoning ordinance or rezoning, is also
inapposite. See, e.g., Millcreek
Township v. N.E.A. Cross Co., 620 A.2d
558, 561 (Pa. Commw. Ct. 1993)
(commercial lessees with rights to
explore natural gas and develop wells
had standing to petition for de facto
taking).
Finally, this case is materially
different from such cases as involving
condemnation of property occupied by
tenants because of serious and dangerous
living conditions. See, e.g., Grayden v.
Rhodes, 345 F.3d 1225 (11th Cir. 2003)
(involving condemnation and eviction of
tenants in an apartment complex for their

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Where, as here, the owner has no
vested property right, it would be
anomalous to conclude that the tenants
have any vested property right. Because
property rights, including leasehold
interests, are created by state law and the
rental arrangement between the owner and
the tenants is unlawful, the plaintiffs
obtained no vested right in the rental
property. Their rental agreement with the
owner gave them no valid leasehold
interest recognized and protected by state
law. Under such circumstances, there can
be no valid due process claim as a matter
of law because there can be no deprivation
of a nonexistent right.17 Kovats, 749 F.2d
at 1047. The District Court’s conclusion
of due process violations predicated on a
nonexistent right is, therefore, reversible
error.
II.
In footnote 9 of the majority
opinion, the majority characterizes my
analysis above as one that “begins and
ends with charging the plaintiffs with the
outcome of the zoning hearing. . . .” The
majority opines that unless the plaintiffs
had an “opportunity to appear at the
zoning hearing that found their property
to be in violation and therefore could . . .
defend against that allegation,” my
analysis “does not adequately respond to
the legal challenge implicit in plaintiffs’
appeal.”
Although the majority’s criticism
has some surface appeal, it misses the
real issue here. Conceivably the
plaintiffs may not have become aware of
their landlord’s zoning violations until
after the Township’s zoning enforcement
hearing, but when and how the plaintiffs
became aware of the violations does not,
and cannot, affect the reality of the
landlord’s zoning violations. My
analysis is grounded on the view that
where the landowner’s rental use of his
protection because of serious and
dangerous living conditions). It was not
disputed that the tenants in Grayden had
legal right to live in the apartment
complex. The tenants in all the cases
cited above had lawful tenancy rights
established and recognized under state
laws.
17 Following the Township Zoning
Hearing Board’s finding of violation
against the landowner and denial of his
variance request, the owner filed an
application for conditional use of the
property as a trailer/mobile home park.
Some of the renters, as well as the owner,
have appealed the zoning board’s
subsequent denial of the conditional use
application to the state trial court. That
appeal has been stayed pending the
resolution of this appeal. Because both
the owner and the plaintiffs have no
property right vested and recognized
under the state law for their unlawful use
of the property, their joint conditional
use application is now an opportunity for
them to establish their lawful use for the
first time.

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property was invalid and void ab initio
for violations of state and municipal
laws, as established by the zoning
enforcement hearing attended by the
landowner, his tenants did not acquire
any right in the same rental use as a
matter of law. To suggest otherwise
would be to accord tenants greater rights
than those possessed by the landowner in
contravention of well established
landlord-tenant laws.
To the extent that the majority’s
criticism embraces the plaintiffs’
argument that the Township’s zoning
enforcement decision cannot be valid and
binding on the tenants unless they
participated in the enforcement hearing,
the majority, as well as the tenants, has
shown no legal authority to support that
argument. The majority’s own position
has implicitly rejected that argument in
light of its holding that the plaintiffs,
with their de minimis interest, are not
entitled to actual notice of the zoning
enforcement hearing because their
tenancy interest can be terminated at
thirty-days’ notice and the Township has
given them several months to vacate the
property.
Admittedly, my analysis does not
answer the question of how or when the
tenants knew or should have known that
their occupancy of the property was
invalid because of the landowner’s
zoning violations prior to the Township’s
negative determination. That issue,
however, is not present in the tenants’
action here. The tenants’ argument, that
they should have been given adequate
notice of a land use violation would be
valid if the Township brought an action
against them for the land use violations,
instead of the landowner. Where, as
here, it is not disputed that the landowner
had converted his property to a
residential rental use in violation of state,
county, and municipal laws, when and
how the tenants should have become
aware of their landowner’s unlawful use
of his land is irrelevant to the issue of
whether they have any valid property
right.18 Their interest in the residential
rental use of the property is at most co-
extensive with the landowner’s interest.
Pennsylvania law holds only the
landowner, not his tenants, responsible
for any zoning violations that occur on
his property.19 Even if the tenants may
18People who rent property usually run
the risk that the ostensible owner of it
may not have good title to the property,
that it may be subject to foreclosure
because of a mortgage default or other
lien delinquency, or that a lease may be
void because it violates local zoning or
state laws. Interested parties can avoid
legal complications by obtaining
information pertaining to the title and
lien status of the property from the
dockets of the county court house;
information concerning the applicable
zoning laws is generally available at the
clerk’s office for the local municipality.
19Under the Pennsylvania
Municipalities Planning Code (MPC) §
10616.1, the plaintiffs are not entitled to
notice of a zoning enforcement hearing

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15
not have become aware of their
landowner’s zoning violations until after
the zoning enforcement hearing, the
established landowner’s violations,
resulting in nullification of his rental use
of his property, precludes the tenants’
due process claim as a matter of law.
There cannot be a due process violation
claim when the claimant has no valid
property interest.
For these reasons, I do not believe
that assuming that the tenants have a
valid property interest does not resolve
their constitutional claim. Under well-
established case law, where, as here, the
court is confronted with a due process
claim, the court must determine first
whether there is a valid property interest
possessed by the plaintiffs. Kovats, 749
F.2d at 1047 (citing Logan, 455 U.S. at
428). I see no reason for the court to
shirk its responsibility of making this
initial determination by making an
assumption contrary to state law.
Furthermore, the majority’s
resolution of the tenants’ due process
claim, by reasoning that there is no
deprivation of their property interest
because, at most, they have a month-to-
month leasehold interest, which requires
only a thirty-day advance notice for
termination under state law, and they
have been given more than thirty days to
vacate the property does not adequately
respond to their due process claim. To
the extent that such analysis is contingent
on the tenants having a mere month-to-
month leasehold interest and an adequate
post-deprivation remedy, would the
analysis be sustainable if the plaintiffs
were year-to-year tenants, as some have
claimed? The state statute, quoted in
footnote 6 of this concurring opinion,
mandates no separate notice of zoning
violation hearing to any type of tenants
(unless they have filed a written request
with the municipality, or the landowner
has requested in writing to the
municipality that his tenants receive such
notice), regardless of the length or type
of tenants’ leasehold interests.
III.
Mindful of the Supreme Court’s
instruction that traditionally the courts
should refuse to “decide constitutional
questions when the record discloses other
grounds of decision, whether or not they
have been properly raised . . . by the
parties,” Neese, 350 U.S. at 78, we
should not engage in a constitutional due
against the landowner. The statute
provides in relevant part:
(b) The enforcement notice shall be sent to
[1] the owner of record of the parcel on
which the violation has occurred, to [2]
any person who has filed a written request
to receive enforcement notices regarding
that parcel, and to [3] any other person
requested in writing by the owner of
record.
53 Pa. Stat. Ann. § 10616.1 (emphases
added). The plaintiffs have not attacked
the facial constitutionality of the statute.

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16
process analysis when the record
discloses beyond dispute another ground
for disposal of the plaintiffs’ claim. That
ground is that the tenants have no vested
property interest under state law. This
approach is especially appropriate where
the plaintiffs have not attacked the facial
constitutionality of the state statute, MPC
§ 10616.1.
I would, therefore, reverse the
District Court’s judgment on the ground
that the plaintiffs have shown no
cognizable property interest under state
law and eschew unnecessary federal due
process analysis.

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