Landlord-Tenant: The difference between eviction by the constable and the sheriff.

Posted By Cliff Tuttle | August 19, 2011

No. 687

If a landlord obtains an award of possession from the Magisterial District Judge (MJD), the tenant has 10 days to appeal to the Arbitration Division of the Common Pleas Court.  If there is no appeal after 10 days, the Constable can serve a writ of possession on the tenant.  The Constable schedules the eviction eleven days later.  However it is not a true eviction. The  landlord is permitted to change the locks.  So the tenant is, strictly speaking, locked out.  The landlord and tenant are then required to work out a moving arrangement.  Of course, if the tenant pays the delinquent rent before the eviction, the eviction is cancelled.

When the tenant appeals and pays rent into escrow with the Department of Court Records, a writ of supersedeas is issued.  This prevents the landlord from obtaining a writ of possession from the MDJ and obtaining a constable eviction.  So long as the tenant continues to pay rent into escrow, the writ of supersedeas continues.  But if a rental payment deadline is missed, the supersedeas may be cancelled.  However, before the Dept. of Court Records will permit this, the landlord must send a ten day notice with specific language, warning the tenant if the rent is not paid into the Dept. of Court Records, the writ of supersedeas will be terminated.  In order to do this, the landlord must file a praecipe to terminate the writ of supersedeas, with the ten day notice and a Post Office certificate of mailing attached.  Then, the landlord can go back to the MDJ and obtain a writ of possession.

Fortunately, most tenants move out before the day of eviction arrives.  But not all.

If the landlord obtains an award of possession from the arbitrators, and the writ of supersedeas has not been terminated, a writ of possession must be delivered to the sheriff.  The Sheriff will serve the tenant and schedule an eviction.  But the sheriff’s eviction is a true eviction.  The landlord must be prepared to move the tenant’s personal property to a storage facility and pay one month’s storage.  This, of course, involves more time, trouble and cost.  The good news is that the premises are empty and can be re-let.

If the landlord does not desire to follow the sheriff’s procedure, it is still possible to send the ten day notice, revoke the supersedeas and go back to the MDJ and the constable.  However, bear in mind that the procedures must be strictly observed.

When the tenant moves, he frequently leaves behind property which has value, sometimes virtually everything in the unit.  Landlords are understandably wary about discarding property that may not have been abandoned.  It is a good idea to provide for this in the lease.  However, if the lease says nothing and there is an award for rent and other damages, the landlord may wish to execute against the personal property, buy it at a constable’s sale or sheriff’s sale, and resell it.

If the foregoing explanation seems a bit daunting, find a lawyer who has some experience in the with tenant evictions.

CLT

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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