Gaping loopholes and vague state guidance leave some Pa. families out of a home despite federal ban on evictions

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Laura Gallagher waited until she was back in her car to cry.

The judge in her eviction case had just ruled against her. Her lease was up and her landlord wanted her out. In a few weeks, she and her 14-year-old son would have to move out of their Bucks County apartment and go — she didn’t know where.

Gallagher had gone to the court hearing with a vague sense that, after a series of eviction bans over the summer, tenants were protected until the end of the year. She wasn’t sure of the details. She remembers trying to ask the judge about it, but got nowhere.

“Standing in there, I felt like the dumbest person in the world,” Gallagher said.

With state moratoriums expiring and scores of people across the U.S. behind on their rent — including as many as 400,000 families in Pennsylvania — the Trump administration in September halted evictions until the end of the year.

Under an order issued by the Centers for Disease Control and Prevention, tenants who qualify cannot be evicted if they sign a declaration form and send it to their landlord.

“I want to make it unmistakably clear that I’m protecting people from evictions,” President Donald Trump said in a statement when the order was announced.

But in Pennsylvania, a Spotlight PA investigation found an inconsistent system of justice across the 67 counties, leaving many vulnerable residents without the protections they were promised. All told, despite the federal order, whether or not families get kicked out of their homes often comes down to where they live, and which judge happens to hear their case.

Rather than establish a clear and robust standard, the state court system has largely left it to district judges — who are not required to be lawyers or have gone to law school — to interpret the vague federal order, leading to starkly different outcomes from town to town and city to city.

A review of 10 eviction cases in nine counties found tenants — many of them already distraught by the prospect of losing their home, and confused by a string of ever-changing rules — face pitfalls at every turn and a bureaucratic system that doesn’t go out of its way to help.

Some tenants don’t know about the order at all, and neither judges nor landlords are required to tell them. Others think it applies automatically, like previous state and federal bans. A judge might decide the order doesn’t apply (even if it should), or a landlord might accuse a tenant of lying on the declaration form, leaving it up to a judge to decide.

These cases are unfolding on the lowest rung of Pennsylvania’s court system, in more than 500 local magisterial district courts that handle traffic violations, small claims cases, and criminal arraignments, as well as evictions. Landlords are more likely to have attorneys, to understand how the eviction process works — and to win.

The lack of clear statewide guidance “leaves magisterial district judges in a precarious position,” said Matt Rich, an attorney at MidPenn Legal Services, which covers 18 counties in central Pennsylvania.

“They’re left to read the order and figure out what it means and how they should be handling it on a daily basis,” Rich said. “That’s caused some problems, for sure.”

Even if Laura Gallagher had signed the CDC declaration form, it’s not clear whether she would have been covered. That’s because she wasn’t being evicted for not paying her rent.

Some landlords in Pennsylvania are successfully short-circuiting the CDC order. Instead of seeking an eviction because a tenant hasn’t paid rent — which is not allowed — landlords ask instead to remove the tenant because their lease has expired or been terminated.

The Administrative Office of Pennsylvania Courts says it’s up to judges to decipher the ambiguities in the federal order. But the limited guidance it has issued says the order only prohibits evictions for non-payment of rent.

“In practice, it creates a loophole that allows landlords to get around the reach of the CDC order,” said Bob Damewood, a staff attorney at Regional Housing Legal Services in Pittsburgh. “It means a lot of tenants who should be covered by the CDC order aren’t.”

In a statement, a spokesperson for Gov. Tom Wolf said the administration “has engaged” the state court system on its interpretation of the CDC order, but it is “not under the governor’s executive jurisdiction and therefore we are unable to require district judges to interpret the order in a certain way.”

Those losing their homes face an increasingly dangerous situation. With the black mark of an eviction on their record, it will be harder to find another place to live, just as winter approaches and the coronavirus is surging again in Pennsylvania. New daily confirmed cases are at all-time highs. The percentage of tests coming back positive and the number of hospitalizations are rising at their fastest rates in months.

For Gallagher, the days after the hearing were a blur. She called friends, scrambling to find a place to go. She tried to find out if she would qualify for public housing. She packed a bag of essentials: clothes, dog food, and medication for her rheumatoid arthritis.

When she found a piece of paper taped to her door, she knew exactly what it was: the start of the countdown to the final stage of the eviction process, when Bucks County constables would come to remove them. Gallagher said she tore it off quickly, afraid her son might see.

She couldn’t bring herself to tell him what had happened.

“I’m supposed to be a mom and protect my kid and I’m failing at that,” Gallagher said.

The day before they were due to be evicted, she still wasn’t sure where they would go.

Finally, on Oct. 15, the constable came to lock them out.

For almost six months, most tenants in Pennsylvania were safe from eviction under a series of orders from the state Supreme Court and, later, from Wolf. But the same day the state ban was set to expire, the CDC announced its order, sowing confusion.

The federal order extends some of the same protections, but with one major difference: It doesn’t apply automatically. Tenants must know about and send a declaration form to their landlord on their own. If they don’t, they could slip through the cracks.

The CDC said the ban was necessary to stave off a wave of evictions that would accelerate the spread of the coronavirus, offering many tenants a lifeline, however temporary. Rent is still due and late fees are piling up. Without direct cash assistance, many will never catch up.

To qualify under the CDC order, tenants must be unable to pay their full rent because of a “substantial” loss of income, reduced work hours or wages, or “extraordinary out-of-pocket medical expenses.” They must also declare they have made “best efforts” to pay as much rent as possible and to obtain government rental assistance. And they must certify that, if evicted, they would probably become homeless, be forced to go to a shelter, or live in cramped conditions with other people. The order only covers those who earn less than $99,000 per year.

By September, Vanessa Lee owed almost $6,000 in back rent and late fees. After schools closed, she said, she had to take unpaid leave from her job to care for her children, including her 9-year-old daughter, who is autistic.

Lee lives in Lakewood Hills, a residential complex outside Harrisburg owned by Morgan Properties, one of the largest landlords in the state. On Sept. 16, the company filed to evict her, as well as 21 other residents of the same complex. Lee was safe: She had heard about the CDC order on the news, spent hours frantically researching it online, and sent in her declaration two days earlier.

But there’s no requirement that landlords or courts tell renters facing eviction that they might be covered by the order, and it scares Lee to think how easily she could have missed it.

“It was very confusing,” she said. “Who can think straight when they’re facing eviction?”

The company told her to resubmit the declaration form on the first of every month “to confirm that your circumstances have not changed,” which isn’t required under the CDC order.

Caleb Cossick, a volunteer organizer with Greater Harrisburg Tenants United, said he went to Lakewood Hills several times to put up flyers about the order and copies of the declaration form. The third time, he said, he was told he had to leave.

Cossick said the same thing happened at another Morgan Properties development nearby and at several other apartment complexes in the area.

Lee said she remembers seeing people putting the flyers on her neighbors' doors. Later the same day, she saw a blonde woman she didn’t recognize taking them down.

In a statement, Morgan Properties said the company’s general policy “is not to allow postings of flyers, etc. by any outside businesses/organizations, regardless of the source.”

There has been confusion over how to interpret the CDC order from the start.

The state court system, which oversees magisterial district judges, has taken a hands-off approach, giving them broad discretion in how to apply it.

“It’s been consistently inconsistent all across the board,” said Christina Drzal, housing director at Legal Aid of Southeastern Pennsylvania.

In a Sept. 2 memo, the Pennsylvania state court administrator told judges that the CDC order prevented new eviction cases from being filed. Then, a day later, he clarified that the CDC order wasn’t, in fact, clear on this, and it was a decision for individual counties and courts.

At least 12 counties have issued local orders on how judges should handle eviction cases, with some stark differences.

In Erie County, once a tenant submits the CDC declaration, their landlord cannot even begin the eviction process. If the case has already been filed, it is postponed until January. But under Lancaster County’s order, cases can proceed as normal, with only the final stage — where tenants are actually removed — on hold. That matters because the filing itself, regardless of the outcome, can make it harder for someone to find housing elsewhere, essentially blacklisting them.

Dauphin and Blair Counties instruct magisterial district judges not to try to determine whether a tenant has been truthful in signing a declaration, which has the weight of sworn testimony. Others, such as Lehigh and Philadelphia, say they can. Legal aid attorneys contend holding hearings to determine whether a tenant has been truthful is unfair, given the CDC order’s vague language on “best efforts” to pay rent and seek government help.

Tenants' attorneys themselves have different views on what a tenant must do to meet the “best efforts” standard. Some urge clients to be cautious, advising them they should have already submitted an application for rental assistance before submitting the form. Others argue a quick phone call to ask about an aid program would be enough.

Washington, Allegheny, and Berks Counties also encourage judges to postpone cases that aren’t covered by the CDC order, to give tenants time to apply for assistance programs, or hear back about pending applications. Pennsylvania set aside $150 million in federal funding for rent relief paid directly to landlords, many of whom are also struggling financially. But the program has been plagued by problems from the start, and state Senate Republicans recently killed a last-ditch effort to fix it.

Even in the counties that have issued their own guidance, there is no guarantee judges will follow it. In Dauphin County, volunteers with Greater Harrisburg Tenants United have observed “widespread confusion and inconsistent interpretation” of the CDC order among tenants, landlords, constables, and judges, the group wrote in an open letter to President Judge John Cherry.

Many judges have been “evasive, dismissive, and even hostile when tenants inquire about the CDC form,” they wrote. As a result, they say, many tenants who should have been protected by the federal order have not signed the form, fearing landlord retaliation or accusations of perjury.

“An unprecedented housing crisis is unfolding — there is no room for ambiguity,” they wrote.

When Stacey Horrocks signed the CDC declaration form, she didn’t realize she was wading into one of the thorniest legal disputes over how the order should be interpreted.

The disagreement boils down to five words in a memo written by Geoff Moulton, the state court administrator, and shared with local judges. The federal order, he wrote, prevents evictions “only for non-payment of rent.”

Most counties that issued local orders have echoed this language.

That leaves tenants like Horrocks, who was on a month-to-month lease, vulnerable. She fell behind on rent in the spring, after money from her divorce settlement dried up. She said she has chronic illnesses and has not been able to work for years. Once the coronavirus hit, she was terrified of leaving the house.

In text messages, her landlord urged her to get a job and said Walmart was hiring. Horrocks apologized. She said she was at high-risk for COVID-19 and trying her best to figure things out.

Horrocks' landlord said she had a property tax bill coming due and was frustrated: “You haven’t paid rent for two months and now the third month is coming round the corner for god sake I can’t do this.”

About a week later, another message: “????”

Horrocks didn’t reply.

A week after that: “???? Moving.”

At the end of May, Horrocks received a letter saying that her month-to-month lease was being terminated and she had to leave by July 1.

In early September, she signed the CDC form and sent it to her landlord, saving the green certified mail slip as proof.

Tenant advocates argue that the state’s guidance — “only for non-payment of rent” — goes beyond what the CDC order actually says, giving judges more leeway to deny its protections to “holdover” tenants like Horrocks, whose leases have expired. By contrast, the state eviction bans ordered by the governor explicitly covered holdover tenants.

The federal order doesn’t specifically say tenants facing eviction for the end of their lease are covered, but it also doesn’t clearly say they are not. Staying past the end of a lease is not one of the five listed exceptions to the order, which range from property damage, to criminal activity on the premises, to health and safety or building code violations. But the order also says tenants can be evicted for violating “any other contractual obligation” aside from not paying rent.

Staying in a property after the lease has expired, however, isn’t always a contractual violation, said Kevin Quisenberry, litigation director at the Community Justice Project, a nonprofit law firm that is part of Pennsylvania’s Legal Aid Network. Some leases require tenants to leave at the end of the term. Some do not. In that case, a tenant filing the CDC form should block the landlord from taking any action to evict them — including by terminating the lease, he said.

In practice, some landlords are filing “end-of-lease” evictions to try to get around the CDC order, said Eileen Yacknin, the director of litigation at Neighborhood Legal Services in Pittsburgh. Yacknin said she was in a local court in Allegheny County with a client in early October, when the judge told the landlord that while an eviction for non-payment of rent wouldn’t be able to proceed, an eviction filed for a different reason would.

Counties also disagree on this. Lancaster County’s order, updated on Oct. 30, says a tenant’s failure to leave once their lease is up is not covered by the CDC order. But Centre County says that in cases where a lease is not being renewed, judges should ask why — and if the only reason is non-payment, the tenant should be safe.

On Oct. 1, a group of elected officials, legal aid organizations, and community groups wrote to Wolf, warning that allowing end-of-lease evictions would, in effect, mean that any tenant on a month-to-month lease could be evicted and undermine the public health intent of the CDC order. They called for a change to the state guidance. But Moulton, the Pennsylvania state court administrator, said in an interview he does not intend to do so.

The CDC order “undoubtedly contains ambiguities over which advocates can argue, including its applicability to holdover tenants,” Moulton said.

“It is up to judges to decide the merits of those arguments,” he said.

As for the public health argument, Moulton said: “We’re not making policy judgments about whether it’s better for more evictions to happen or fewer evictions to happen. That’s not our role.”

A Berks County judge ruled that Horrocks could be evicted even though she had submitted the CDC declaration, since her landlord had terminated her lease over the summer.

By the time of the hearing, Horrocks owed more than $6,000.

With the help of a legal aid attorney, Horrocks is appealing the judge’s decision, which will buy her some time. Eventually, however, she will almost certainly have to pay rent to the court in order to be able to stay in the apartment while the appeal moves forward — money she says she does not have.

“There’s no magical rescue for me in this,” she said.

Earlier this month, when she arrived home from a local copy store after scanning the paperwork for the appeal and sending it to her attorney, she found a “for rent” sign stuck into the grass in her front yard.

When Jasmine Pennington found out about the CDC order, she thought she checked all the boxes. But, in Philadelphia, some tenants are still being held to the terms of agreements they made with their landlords before the pandemic.

In January, Pennington fell one month behind on rent, and her landlord filed to evict her and end her month-to-month lease. As in roughly a third of eviction cases filed in Philadelphia each year, Pennington and her landlord resolved the case by making a deal that would be enforceable by a judge, known as a Judgement by Agreement.

Pennington agreed to pay the late rent and move out by March 1. If she didn’t, the landlord could have her removed from the apartment — and she wouldn’t be able to appeal. A court document warns tenants: “REMEMBER, YOU ARE BOUND BY EACH AND EVERY CONDITION OF THE AGREEMENT!”

Then, COVID-19 hit, courts closed, and Pennington said she lost her job at a temp agency. With evictions on hold over the summer, she stayed in the Northeast Philadelphia apartment, making payments when she could.

A rental ledger shows her efforts to stay afloat throughout June and July: $400 one day, $100 the next week, $550 the next, another $650 the week after that. By the end of July, her outstanding balance was down to $50. Then, the $600 federal unemployment supplement ran out and she fell behind again.

She asked her landlord to take part in the city’s rental assistance program, but one of the property managers told her, in a text message, that it involved “too many extremely difficult conditions.” An attorney for Pennington’s landlord declined to comment.

In September, after she sent the CDC declaration to her landlord, the case was back in court. Her landlord said she hadn’t stuck to the terms of the February agreement.

Pennington said she had “full intentions” of following the agreement, but wasn’t able to “due to issues out of her control,” court records show. But the economic effects of the pandemic were not a “legally sufficient basis” to excuse her breach of the agreement, Municipal Court Judge Bradley Moss wrote in a decision that covered several similar cases. Even though no one could have foreseen COVID-19, he wrote, tenants took on the risk of not being able to satisfy the agreements when they entered them.

The CDC order says that a landlord may not take any actions “to remove or cause the removal of” a tenant who has submitted the declaration form. But Moss ruled that this definition is not broad enough to stop a landlord from filing to evict a tenant because they have breached a Judgement by Agreement.

If the agreement had only been about paying back rent, he wrote, the CDC order would probably apply. But, since Pennington had agreed to move out, Moss determined she wasn’t covered.

Moss did set another court date for Pennington and her landlord to renegotiate the terms of the agreement. But when she went back to court in October, Pennington said, the clerk told her the landlord didn’t want to discuss it.

Now, with an eviction on her record, Pennington is moving her things to a friend’s house and scrambling to find somewhere else for her family to live before Nov. 9, when Philadelphia will resume lockouts. The City Council is considering legislation to reinstate a local eviction ban, but the bill has stalled in the housing committee over disagreements about how broad it should be. The committee is not scheduled to meet again until Nov. 6.

Pennington worries that her daughters — ages 9, 7, and four months old — hear her endless phone calls, trying to find a new apartment. She tries to reassure them that they will have a new home soon.

“You want me out, I want to be out — I don’t want to be somewhere I’m not welcome,” she said. “But where the heck am I gonna go?”

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