Received 11/08/2021 Supreme Court Eastern District

Filed 11/08/2021 Supreme Court Eastern District

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Donald Smith, Esq. Chair of Legal Services to the Public Comimttee

Patrick Cicero, Executive Director of PLAN, Member of Legal Services to the Public Committee

Barry M. Simpson, Esq, PBA Executive Director

Enclosures:

WiUdnson Letter to Chief Justice Baer dated 10/27/21

Legal Services to the Public Approved Recommendation and Report

Authorization Draft for the use ofADR Procedures in Residential Eviction Proceedings

Pennsylvania Supreme Court's Order, docket no. 21 EM 2020

PRESIDENT'S OFFICE: WILSON ELSER MOSKOWTTZ EDELMAN & DICKER LIP • 2001 MARKET STREET, SUffE 3100 • PHILADELPHIA, PA 19103

PHONE (215) 606-3905 • FAX (215) 627-2665 • EMAIL: Kathteen.Wilkinson@wilsonelser.com

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Kathleen D. WiUcinson

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Donald Smith, Esq. Chair of Legal Services to the Public Committee

Patrick Cicero, Executive Director of PLAN, Member of Legal Services to the Public Committee

Bany M. Simpson, Esq.

PENNSYLVANIA BAR ASSOCIATION

LEGAL SERVICES TO THE PUBLIC COMMITTEE

Recommendation and Report

RECOMMENDATION

The Legal Services to the Public Committee recommends that the Pennsylvania Bar

Association (PBA) request the Pennsylvania Supreme Court to encourage the president

judge of each of Pennsylvania's sixty judicial districts to develop and enforce residential

eviction alternative dispute resolution programs. The Supreme Court would delegate

the authority to mandate such local programs to the president judges.

REPORT

The National Center of State Courts estimates that, in housing court, more than 90

percent of tenants facing eviction have no lawyer, while more than 90 percent of the

landlords do.1 In his bestselling, 2016 Pulitzer Prize-winning-book, Evicted: Poverty

and Profit in the American City, Matthew Desmond writes that not having the assistance

of counsel in housing court means "due process has been replaced by mere process:

pushing cases through."

While strong arguments have been made for establishing a right to counsel for tenants

in eviction proceedings,2 this Recommendation does not address that issue. Instead,

the Committee is recommending another endeavor in an attempt to "level the playing

field"—pre-trial settlement conferences with a trained mediator in eviction cases.

Allowing for an alternative dispute resolution program provides a forum for the landlord

and tenant to actually meet and discuss the dispute in advance of an adversarial

experience in the courtroom. Experience has shown that many such disputes arise

from a lack of communication between the parties.

For example, even at this late date, tenants, as well as many landlords, are not aware of

the rental assistance funds that are available. Furthermore, in cases where the tenant

has the ability to pay rent but refuses to do so in an attempt to enforce the implied

warranty of habitability, the tenant has frequently failed to properly communicate the

problem or has failed to provide the landlord with access to the premises. Some

landlords have the mistaken impression that they first need to be paid the rent owed in

order to then make the necessary repairs.

1 Robert Grey Jr., "There is No Justice as Long as Millions Lack Meaningful Access to It," ABA Journal, August 30,

http://www.abajournal.com/news/article/there_is_nojustice_as_long_millions_lack_meaningful_access_to_it.

2 See, Robin M. White, Comment, "Increasing Substantive Fairness and Mitigating Social Costs in Eviction

Proceedings: Instituting a Civil Right to Counsel for Indigent Tenants in Pennsylvania," 125 Dickinson L.R. 795

2018,

(Spring 2021).

Allowing for mediation between the parties in a structured program, in an attempt to

resolve the dispute prior to filing of an eviction complaint, has its benefits. It saves the

court's resources, prevents negative consequences of eviction, especially during a

pandemic and benefits landlords and tenants by coming to agreements in lieu of

lawsuits and their attendant costs.

The City of Philadelphia has adopted a very successful Eviction Diversion Program,

which mandates that landlords, prior to filing a complaint seeking possession based on

non-payment of rent owed, must first complete an application for rental assistance. The

parties are then automatically enrolled in the Program. According to the Administrative

Order, "It will be a dispositive affirmative defense for any tenant to show that the

landlord did not pursue either rental assistance or eviction diversion through the City of

Philadelphia Program timely or in good faith." Counselors are provided at a mediation

session to negotiate an agreement between the parties.

The program has been praised. In an editorial this past summer, the New York Times

lauded the effort, concluding, "Philadelphia has the right idea." Vanita Gupta, Associate

Attorney General of the United States, in a letter dated June 24, 2021 to the states'

chief justices and court administrators, urged them to consider employing eviction

diversion strategies in their jurisdictions. She singled out the Philadelphia program:

"Early indications from Philadelphia showed that its program had helped reduce

caseloads as significant numbers of litigants have chosen to resolve their disputes

through mediation."

Such continues to be the case. Accompanying an October 15, 2021 Wall Street Journal

article headlined "Evictions Rise Modestly After Ban Ends" was a graph documenting

Philadelphia's success through October 9. Pre-pandemic, Philadelphia's monthly

eviction rate was approximately 10% greater than the monthly average. Now, it is more

than 60% /ess than the monthly average. The article cites the program's requirement

that landlords go through out-of-court mediation prior to filing a complaint.

Requiring mediation pre-filing is essential. Once a complaint is filed, the timeline is tight

inasmuch as the law requires a hearing no sooner than seven days after filing and not

later than fourteen days. While magisterial district judges have authority to continue

hearings, most are reluctant to do so, wanting to clear their dockets. Furthermore, if the

matter can be resolved pre-filing, it saves the tenant from having a "blackmark" on the

tenant's record.

It is recognized by the Committee that mandating a pre-filing diversion program,

imposing a procedural rule, requires action by the PennsylvaniaSupreme Court.

Matthew Desmond detailed the effects of an eviction in an op-ed piece for the New York

77mes on October 3, 2021: "It separates families from homes, children from parents,

workers from jobs, students from schools, neighbors from communities. It provokes

sickness and suicide."

Concluding her letter with similar concerns, Associate Attorney General Gupta wrote:

"Losing one's home can have catastrophic and psychological effects. The entire legal

community, including the Department of Justice, the bar, and the judiciary, has an

obligation to do what it can to ensure that each and every individual has meaningful and

equal access to justice before facing such consequences."

Providing authority to the Commonwealth's president judges to mandate pre-filing

eviction alternative dispute resolution programs in their respective jurisdictions is a

major step towards meeting that obligation.

Respectfully submitted on behalf of the Legal Services to the Public Committee.

Amy G. Carpenter

Arlene A. Marshall-Hockensmith

Donald F. Smith, Jr.

Tri-Chairs

October 22, 2021

Approved, as amended, by the Board of Governors on October 27, 2021, acting in lieu of the House of

Delegates.

Authorization for the use ofADR Procedures in Residential Eviction Proceedings

The Goal:

For the Supreme Court to issue a mle that allows a local county's President Judge to issue their

own local rule creating or coordinating with Alternative Dispute Resolution (ADR) procedures in

eviction proceedings, if they so choose. This could be done through a one-sentence addition to:

246 Pa. Code Rule 216. Local Rules.

The requirements for the promulgation and amendment of local

procedural mles for proceedings in magisterial district courts subject

to these mles are set forth in Pennsylvania Rule of Judicial

Administa-ation 103 (d).

Notwithstandine this or any other provision of these Rules, the

President Judges may, by local rule, establish and implement

Alternative Dispute Resolution processes applicable to

residential eviction proceedings.

Talking Points:

Alternative Dispute Resolution (ADR) has proven to be extremely beneficial to litigants

and to the Courts, and it is particularly well-suited for eviction proceedings.

o Experience demonstrates that mediation and other types ofADR can

resolve disputes more rapidly and less expensively than litigation.

o ADR is much more cooperative than adversarial litigation and gives

the parties the tools to develop mutually beneficial solutions.

o Participating in ADR has been shown to improve, rather than

worsen, relationships between disputing parties, which is a key

advantage in situations where the parties will continue to interact

after a settlement, such as in landlord-tenant relationships.

o ADR procedures also consistently have resulted in considerable

savings for the Courts by preventing ongoing litigation both at the

fa-ial and appellate levels.

Now is the time for the Supreme Court to issue a rule expressly authorizing the use of

ADR procedures in eviction proceedings.

0

The COVED-19 pandemic has resulted in income loss for millions of

Pennsylvanians, and many thousands of households are presently at risk of

eviction.

0

In Allegheny County, for instance, nearly 20,000 households have applied for the

federally-funded, county-administered Emergency Rental Assistance Program.

Nearly 14,000 applications remain pending, and the number is steadily growing.

0

In Philadelphia, more than 50,000 rental assistance applications remain pending,

which represents a potential eviction volume that would inundate the landlord-

tenant docket for years to come.

0

With the recent or nearing expiration of federal, state and local eviction related

emergency measures, potential eviction proceedings threaten to overwhelm

dockets in counties throughout the Commonwealth.

0

Moreover, the utility ofADR procedures is not limited to the immediate crisis

brought on by the pandemic. Eviction dockets have long been difficult to manage

and equitable resolutions of these cases difficult to attain.

The President Judges need clarity from the Supreme Court regarding their authority to

implement ADR procedures by local rule.

o In recent weeks, multiple county courts have sought permission to utilize ADR

procedures in eviction proceedings, including procedures for collaborating with

their county ERAP provider. These include Philadelphia, Allegheny,

Montgomery, Bucks, Dauphin, Delaware and Washington Counties.

o Under the Supreme Court's general rules of procedure governing eviction

proceedings, any proposed local rule must be individually evaluated by the Minor

Court Rules Committee for consistency with state rules prior to implementation.

o The complexity of this process may deter President Judges from attempting to

enact local ADR procedures, and it makes the enactment of such local ADR

procedures difficult to accomplish in a timeframe necessary to respond to the

present need.

o A simple mle from the Supreme Court that expressly authorizes local mlemaking

to implement ADR procedures in eviction proceedings, as proposed here, would

provide the clarity needed by President Judges to develop and implement ADR

procedures that are responsive to local needs and the present eviction landscape.

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

IN RE: FIRST JUDICIAL DISTRICT OF

No. 21 EM 2020

PENNSYLVANIA

ORDER

PER CURIAM

AND NOW, this 28th day of October, 2021, the Request "to Authorize the

Continuation of the Philadelphia Municipal Court Landlord-Tenant Diversion Program" is

GRANTED, IN PART. The President Judge of the Municipal Court is granted the

requested authority through November 30, 2021, subject to continued, adequate funding

in the Emergency Rental Assistance Program.

Any individual or entity who desires to file a response in support or opposition to

the continuation of the Philadelphia Municipal Court Landlord-Tenant Diversion Program

may do so by filing such response with this Court's prothonotary at the above docket

number. The deadline for responses is November 8, 2021.

Justices Donohue and Mundy dissent.

IN THE SUPREME COURT OF PENNSYLVANIA

Docket No. 21 EM 2020

In Re: First Judicial District of Pennsylvania - Philadelphia Municipal

Court's Request Pursuant to Pa.R.J.A. 1952(B)(2)(s) to

Authorize the Continuation of the Philadelphia Municipal Court

Landlord-Tenant Diversion Program

Patrick F. Dugan, President Judge of the Philadelphia Municipal Court, hereby requests

the Supreme Court to authorize the continued extension of the Philadelphia Municipal

Court Landlord-Tenant Diversion Program, pursuant to Pa.R.J.A. 1952(B)(2)(s), for 120

days, and represents as follows:

1. By order dated August 16,2021, Your Honorable Court authorized the continuation,

through October 31, 2021 , of the Philadelphia Municipal Court Landlord-Tenant

Diversion Program ("Diversion Program").

2. The Diversion Program was implemented with the input and cooperation of various

stakeholders which culminated in the adoption of the Emergency Housing Protection

Act1 by the Council of the City of Philadelphia and enables landlords and tenants to

arrive at an agreement that works for both parties, thereby eliminating the necessity

of filing an appeal with the Court of Common Pleas when either the tenant or the

landlord is dissatisfied with the decision issued by the Philadelphia Municipal Court.

3. The central feature of the Diversion Program, and the only aspect that implicates

rule 1952(6), is the requirement that a landlord first file an application for rental

assistance, and participate in good faith, with the Emergency Rental Assistance

Program through https://phlrentassist.org and then wait 45 days before filing a

Landlord-Tenant Complaint seeking possession based on non-payment of rent.

4. The Diversion Program as authorized by Your Honorable Court has been the most

important factor in managing the docket of the Philadelphia Municipal Court, Civil

Division, Landlord-Tenant Court (LLT Court) through the Pandemic. In essence, the

anticipated "tidal wave" of evictions has been successfully redirected to alternative

dispute resolution utilizing federal funds and most of the cases have been resolved

there. More specifically,

a. Prior to the Pandemic, the LLT Court handled roughly 1,500 cases per month.

b. Since April 1, 2021, over 60,000 people filed for rental assistance. If those

applicants had otherwise turned into defendants, the court would not have had

the resources to handle such a volume, particularly where social distancing has

reduced the number of cases the court is able to handle in a day.

c. Around 90 percent of assistance applications result in a resolution between

landlord and tenant. This provides remarkable relief to the court.

1 See Philadelphia Code, Section 9-809.

d. The pre-filing requirement of the Division Program not only frees up the LLT

Court resources but also helps reduce the stress on the affordable housing crisis

in Philadelphia. The mere filing of an eviction lawsuit against a tenant is a factor

that prospective landlords consider before agreeing to let a unit. Many residents

of the City of Philadelphia stopped paying rent solely due to losing work as a

result of the Pandemic. By facilitating this pre-filing resolution of these disputes,

the program allows such tenants to avoid being stigmatized also allowing their

landlords to receive federal funds. Stigmatized tenants are more likely to seek

substandard housing which leads to more litigation in the court.

e. The Diversion Program's pre-trial mediation component has been highly

successful, helping tenants avoid an eviction while also helping landlords avoid

vacancies and unit turnover costs.

5. Th Diversion Program has been successful and has facilitated judicial management

of landlord tenant cases due to the tremendous success of Philadelphia's

Emergency Rental Assistance Program. Detailed Program information is available,

and is regularly updated, on its dashboard at https.V/phlrentassist.org/dashboard/.

a. Rental assistance applications have been filed with the City of Philadelphia,

through the Emergency Rental Assistance Program, in Phases, beginning in May

2020. Since then, and through the week ending on October 15, 2021, a total of

$199,761,853.89 has been disbursed.

b. Phase 4 opened on April 1, 2021. Between April 1, 2021 and the week ending on

October 15, 2021, the Emergency Rental Assistance Program received a total of

66,957 applications and disbursed $134,133,087.89.

c. The City of Philadelphia has received additional funding for the Emergency

Rental Assistance Program: $35 million of ERAP 2 Federal Funds; and $14.9

million state funds.

d. The most recent filing data clearly demonstrate the continued need for the

Diversion Program. During the last week (October 8 through October 15), the

Emergency Rental Assistance Program received 1, 717 new applications,

assisted 407 new households, and disbursed $3,636,037.43. More than $39

million in funding remains to assist eligible tenants and landlords especially if this

Court's Diversion Program can be extended through February 28, 2022, or until

funding is exhausted. Funding may go unused if the program is not extended.

6. The existing diversion has allowed the court to manage the substantial backlog of

writs and Alias writs. As of this writing, there are only 383 outstanding Alias Writs of

Possession. The pretrial resolution of cases through diversion has allowed the

backlog to be addressed without adding a substantial number of new Writs.

7. At the height of the pandemic, due to the scheduling impact of social distancing

reducing the volume of cases that could be heard in any single day, the Philadelphia

Municipal Court was not able to schedule landlord tenant cases in accordance with

the law requiring them to be scheduled within 30 days of filing. At points they were

scheduled more than 90 days out. At the time of the last request for extension of the

pretrial diversion program, the Court was close to achieving compliance with the 30-

day filing to trial requirement. Due to volume and space limitations that is increasing

somewhat at this time.

8. The number of cases the LLT Court hears is expected to increase after January 1,

2022, with larger numbers of people coming to court. h4andling that volume of cases

with the Diversion Program in place, while meeting the 30-day requirement will be a

challenge but one we can meet. Without the pre-filing component of the Diversion

Program, the promised "tsunami" of eviction filings will simply overwhelm us. That is

why we are requesting authorization to continue this Program until February 28,

2022.

9. In light of the extension authorized by Your Honorable Court on August 16, 2021, the

Philadelphia Municipal Court has been able to appropriately manage not only the

existing inventory but also the newly filed cases. The continuation of the Philadelphia

Municipal Court Diversion Program will enable the Court to manage the backlog of

evictions and the anticipated filing of claims for possession based on non-payment

of rent while both landlords and tenants seek to utilize the available conciliation,

mediation services and funding as noted above.

10. Finally, this Court is requesting this authorization but is mindful that funding may not

be available in the future. If at any point during this authorization period, if funding

for the program should cease or be suspended, it is the intention of the Court to

suspend or cease the profiling diversion requirement.

Therefore, the undersigned respectfully request that this Court authorize the

Philadelphia Municipal Court to require that a landlord first file an application for rental

assistance, and participate in good faith, with the Emergency Rental Assistance

Program through www.phlrentassist.org and then wait 45 days before filing a Landlord-

Tenant Complaint seeking possession based on non-payment of rent. Moreover, the

undersigned respectfully requests that such authorization and extension of the

Philadelphia Municipal Court Landlord-Tenant Diversion Program continue through

February 28, 2022, subject to the foregoing funding concerns, unless otherwise limited

or extended by Your Honorable Court.

Date: October 20, 2021

/s/ Patrick Dugan

Honorable Patrick F. Dugan

President Judge, Philadelphia Municipal Court

First Judicial District of Pennsylvania