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Heredia, Hortantsa and Schultze v. Green

decided as amended january 5 1982.: December 22, 1981.

HEREDIA, HORTANTSA AND SCHULTZE, GLORIA INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, APPELLANTS
v.
GREEN, EDWARD A., APPELLEE



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 80-1342)

Before Gibbons and Hunter, Circuit Judges, and Stern, District judge.*fn*

Author: Hunter

Opinion OF THE COURT

Plaintiffs Hortantsa Heredia and Gloria Schultze brought suit on behalf of themselves and all others similarly situated, alleging that defendant Edward A. Green, a Landlord and Tenant Officer ("L&T Officer"), violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. (1979), and the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("PUTPCPL"), 73 P.S. § 201-1, et seq. (Purdon 1971) by engaging in allegedly illegal collection activities. Specifically, plaintiffs object to the defendant serving copies of a document headed "Municipal Court Notice of Termination of Lease" (the "Notice"), on behalf of various landlords, to tenants who are allegedly delinquent in rental payments, and for charging tenants "unauthorized" fees for this service.

We must decide whether the defendant Green was acting in the performance of his official duties when he sent the Notices to the plaintiffs. Such a determination would, by virtue of 15 U.S.C. § 1692a(6)(C), exempt his actions from the proscriptions of the debt collecting provisions of the FDCPA. The district court 504 F. Supp. 896 concluded that Green's activities were in the performance of his official duties and were thus outside the scope of the FDCPA and declined to reach plaintiffs state law claims. We affirm.

FACTS

Defendant Green is a Landlord and Tenant Officer of the Pladelphia Municipal Court. He was appointed to the position by President Judge Glancey of that court on March 20, 1970. Over the past three years, Green has served the Notices in question upon many tenants in the City of Philadelphia.

The Notice sent to tenants is basically of the same form in all cases, but differs in the name of the landlord, the name of the tenant(s), and the amount of rent and late charges claimed due. Appendix at 1-18a. The landlord provides Green with all the information necessary to complete the form. It is completed by Green soon after the landlord contacts him, whether by telephone or in person. The Notice, which contains a Municipal Court seal bearing the words "Landlord & Tenant Officers of Municipal Court," demands full payment of all fees, late charges, and unpaid rent within five days. Payment is to be made by the tenants at Green's office. The Notice states that eviction proceedings will then be instituted in Municipal Court, if payment is not received within five days.

President Judge Glancey expressly authorized Green to use the form of the Notice in question. The Notice was served upon both plaintiffs pursuant to separate written lease agreements. Although the Municipal Court does not provide the forms nor pay for them, they are approved for form and content by the Philadelphia Municipal Court. The Notice provides for certain fees for "services," "travel" and "receiving payment." Defendant Green has no authority to charge any fees other than those specifically authorized by the President Judge of the Municipal Court.

In the case of the named plaintiffs, defendant Green received a telephone call from each of their respective landlords. Plaintiff Heredia's landlord called on January 4 and 18, 1980. For a fee of $9.50, Green agreed to send Heredia Notices which were mailed the same day. On January 18, 1980, Green received a telephone call from Brunner Real Estate, landlord of plaintiff Schultze. For a fee of $8.00, he agreed to send her a Notice which was mailed the same day.

Both named plaintiffs received the Notices in question as a result of their failure to pay rentals in accordance with their written lease agreements. That both named plaintiffs owe back-rent to their landlords is undisputed.

PROCEDURAL HISTORY

This action was brought by plaintiffs on April 4, 1980. Plaintiffs sought declaratory and injunctive relief for themselves and the unnamed members of the plaintiff class. In addition, they sought actual and statutory damages for themselves. Defendant Green filed an answer to the complaint on June 16, 1980. It became apparent to the parties that the requirements of Fed.R.Civ.P. 23(a) and (b)(2) were met; on June 30, 1980 plaintiffs filed an uncontested motion for class certification which was approved by the district court. The class certified was "all individuals who have received or may receive forms entitled "Municipal Court Notice of Termination of Lease' as part of an attempt by defendant Green to collect unpaid rent." Appendix at 1-40a.

On August 7, 1980, Green filed a motion for summary judgment asserting that his collection activities were outside the purview of both the FDCPA and PUTPCPL. Plaintiffs then filed a cross-motion for partial summary judgment seeking judgment on the issues of liability, injunctive relief and statutory damages, and reserving the issue of actual damages for trial.

After considering the motion and cross-motion, the district court entered a Memorandum Opinion and Order on December 1, 1980. Appendix at 1-56a. The court concluded that Green's activities were outside the scope of the FDCPA; therefore, it granted defendant's motion and denied plaintiffs' cross-motion. The district court refused to exercise pendent jurisdiction over plaintiffs' state law claim and so never reached the merits of that issue.*fn1 On December 22, 1980, plaintiffs filed this appeal.

Discussion

The FDCPA proscribes various activities of debt collectors, but excludes from the definition of "debt collector"

any officer or employee of the United States or any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties.

15 U.S.C. § 1692a(6)(C). Green contends that the activities objected to by plaintiffs in this action are excluded from the FDCPA by this section. Plaintiffs argue that Green is not acting in his official capacity as an L&T Officer, but rather that his activities are in essence those of a private debt collector and are therefore subject to scrutiny under the FDCPA. The district court concluded that Green's activities did constitute official activities, and were thus excluded from the proscription of the FDCPA. We agree. We also agree that because of this conclusion, we need not decide whether the activities in question would be proscribed by the FDCPA were they ...


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