Pittsburgh Legal Back Talk

Legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus.

1114 Posts and Counting

Attorneys: The Law is Changing Regarding Powers of Attorney

Posted by Cliff Tuttle| October 18, 2014 | © 2014

POANo. 1,114

Just a heads up.  Act 95 of 2014, effective in part on July 2, 2014 with more to come, must be consulted when preparing powers of attorney.

It all started with the case of Vine v. Commonwealth of Pennsylvania State Employee Retirement Board, 607 Pa. 648, 9 A.3d 1150 (2010). Plaintiff had executed a power of attorney naming her husband as agent at a time she was in very poor physical and mental condition. There was apparently some question whether she had the ability to enter into a power of attorney.  Her husband, employing the POA, made various elections in behalf of his wife under the retirement plan.Wife recovered and the parties were divorced.  She then attempted to reverse one of the choices her husband had elected for her under the power of attorney.

The Retirement Board refused to make the change.  Under the applicable statute as it literally stated and had always been interpreted, the Retirement Board was entitled to rely upon the Power of Attorney until revoked.

However, a divided Supreme Court held that, under the facts of this case, the Power of Attorney was not effective because Theresa Vine was not competent to execute a power of attorney and that the Board was liable to her for relying upon it..

This resulted in a reaction by banking and estates lawyers that ultimately resulted in legislation that went far beyond addressing the Vine case. The Advisory Committee on Decedents’ Estates Laws had issued a report recommending changes in Chapter 56 of the Probate Estates & Fiduciaries Code, which dealt with powers of attorney and Chapter 54, “Health Care Powers of Attorney.”  However, Act 95 went beyond the recommendations of the Committee.  According to one source in the general assembly, moreover, the legislature is not finished revising the law on powers of attorney.

After January 1, 2014, all powers of attorney are required to be executed before a notary (who cannot be the agent) and two separate witnesses.

A power of attorney may be signed by a third party on behalf of the principal if the principal is unable to sign and specifically directs the other person to sign.

In addition, the notices to be signed by the principal and agent have changed.

The powers of the agent have been, in some cases, expanded.  Significant among these is the power to make gifts.

Of course, the moving purpose of Act 95 is to address the holding of the Vine case, which it does. The increased formalities, including the presence of witnesses,  are intended to ameliorate concerns regarding the competency of the principal to execute the power of attorney.  Civil liability is imposed for a third party refusal to honor the power, a somewhat revised format.

The changes under Act 95 are too numerous and have too many new implications to be summarized here.  Any attorney undertaking to prepare a power of attorney after January 1 should become familiar with the provisions of Act 95 before drafting.

CLT

 

CLT an AVVO Answers Top Contributor for 2014

Posted by Cliff Tuttle| October 17, 2014 | © 2014

No. 1,113

AVVOI just received notice that I am once again a top contributor  to AVVO, as was the case last year. Those contributions were in the form of questions answered through AVVO about real estate and landlord tenant law.  I have been doing this almost since the beginning of AVVO.  I am currently no. 58 in the all-time rankings for landlord tenant submissions.

If you follow PittsburghLegal in Twitter, you will receive a tweet of all of my AVVO Answers, as well as all new posts in this blog.

CLT

Is Fantasy Football Illegal Gambling in Pennsylvania?

Posted by Cliff Tuttle| October 17, 2014 | © 2014

No. 1,112

Image: trendinbuffalo.com

Image: trendinbuffalo.com

Fantasy football has been around for a while.  Rules vary.  In the classic format, the team owners meet at the beginning of the pro football season to draft teams of offensive players expected to do a lot of scoring. These teams usually continue to play for the entire season, with the winner taking the pool at the end. However, commercial variations have developed that enable individuals to play by the day or the week, without the need to assemble an entire  league. And even the cable sports networks, such as ESPN, have joined in.

The question is, does this constitute illegal gambling?  In Pennsylvania, probably not.

In Pennsylvania, as in most (but not all) States, the test whether such a game is illegal gambling is whether it is predominantly one of chance or skill. The last time a Pennsylvania appellate court addressed the issue of chance v. skill was in a 2010 Superior Court decision, Commonwealth v. Dent, 992 A.2d 190. Although Poker, in its various forms, involves substantial skill, the Superior Court held that chance predominates because the cards dealt to each player have the primary role in determining the outcome of the hand.

Whether Fantasy Football is predominately a skill game has never been directly addressed by Pennsylvania appellate courts. However, the prevailing view is that picking a Fantasy Football team is a game of skill. Organizations that permit you to play fantasy football over the internet, have determined that the game is legal in our Commonwealth. Mark Edelman, who is something of an expert, explains the reasoning in an article in Forbes. On its website, FanDuel, a popular internet fantasy site explains how it determines which states are safe to offer the game.

However, if the games are changed to incorporate more chance elements, such as payouts that are based on total scores of actual games in the NFL prosecutors may decide to take another look.

CLT

Contracts of Adhesion and Unconscionability

Posted by Cliff Tuttle| October 15, 2014 | © 2014

No. 1,111

William Towne v. Sensible Home Warranty, LLC, Pittsburgh Legal Journal, Vol. 162 No. 20 page 314. AR 12-6409. June 3, 2014.

Image: douglaswhaley.blogspot.com

Image: douglaswhaley.blogspot.com

This case involves a claim made under a home warranty which provided that a warranty dispute must be submitted to the American Arbitration Association in Washoe County, Nevada, the location of the defendant’s office. After a bench trial, the court awarded damages to the plaintiff, together with exemplary damages and attorneys fees under the Unfair Trade Practices and Consumer Protection Law (UTPCPL)  The Defendant filed post trial motions, then withdrew them and appealed to the Superior Court on grounds that the trial court should have ordered AAA arbitration at some location other than Nevada.

Under the Rules, Judge Alan Hertzberg, the trial judge, prepared an opinion explaining his reasoning to the Superior Court.

In his opinion, Judge Herzberg stated:

“A term of a contract “is unconscionable, and therefore avoidable, when there was a lack of meaningful choice in the acceptance of the challenged provision and the provision unreasonably favors the party asserting it.” Salley v. Option One Mortgage Corp., 592 Pa. 323, 925 A.2d 115 (2007). The warranty Sensible provided Mr. Towne is a standardized contract form offered to consumers of goods and services on a ‘take it or leave it’ basis. See Black’s Law Dictionary (5h ed. 1979). Accordingly, it cannot be disputed that Mr. Towne lacked a meaningful choice. See Denlinger, Inc. v. Dendler, 415 Pa. Super 164 at 174-175, 608 A.2d 1061 at 1066-1067 (1992).

The arbitration clause in Sensible’s warranty also unreasonably favors Sensible. Sensible offered no justification for a clause that discourages customers from initiating meritorious disputes with it (unless they are Nevada residents). The clause deters a customer in Pittsburgh, Pennsylvania by the expenses of travel and lodging and the time commitment for AAA arbitration in Nevada. It appears Sensible’s goal in having this clause in the warranty is to avoid disputes with customers without regard to whether or not they have merit. This is an improper goal. Therefore Sensible must not be permitted to have its choice of a forum, AAA, forced upon a customer with a meritorious dispute who chooses resolution via the court system. Additionally, the Nevada venue and the AAA forum are too closely connected for severance of one from the other. Together they comprise an arbitration clause that unreasonably favors Sensible and therefore is unconscionable.”

CLT

Landlord & Tenant: Shorting the Escrow

Posted by Cliff Tuttle| October 11, 2014 | © 2014

No. 1,110

EscrowWhen a low income tenant appeals from the magistrate, the Department of Court Records gives him/her a pack of papers.  One of them is intended for Section 8 tenants who only pay a portion of the rent.  But other tenants fill in the blanks and sometimes get away with paying only part of the required escrow.

For example, suppose that the Magistrate found that the rent was $600.00.  But the tenant reads the form, which asks what percentage of the rent is  her share.  She thinks: “Well, my boyfriend pays half, so my share is $300.00.”

And then, “per affidavit” Court Records lets her pay escrow based on a $300 share.  This seems to be happening with increasing frequency.

So, what does a landlord do to set the record straight?  Don’t bother arguing with the people at the Department of Court Records.  Instead, it is necessary to file a motion to correct the escrow.  In Allegheny County, such a motion goes to Judge Wettick.  And if you haven’t done so already, its probably a good time to lawyer up.

CLT

 

This “Time Management Ninja” Post is Too Good Not To Reprint in Full.

Posted by Cliff Tuttle| October 9, 2014 | © 2014

No. 1,109

10 Quick Tips to Improve Your Time Management

Quick Tips

Last week at a conference, I was approached by a TMN reader who asked me, “Can you give me a quick tip to improve my time management?”

I felt like a comedian put on the spot with the cliché, “Say something funny…”

So, for those who want some “quick tips,” today I have a list of 10 Quick Time Management Tips…

10 Quick Time Management Tips

As much as I talk about time management, productivity, technology, and goals, it can be difficult to give a “quick tip” to improve your productivity.

There are no silver bullets. After all, everyone’s life, job, and circumstances are different.

However, just in case I get that question again…

Here are 10 Quick Tips to Improve Your Time Management:

  1. Plan Your Day – The single best thing you can do to boost your productivity is to plan your day before leaving the house. Less than 10% of individuals do this, so start your day ahead of the pack.
  2. Block Your Time – Block time on your calendar for your work. Otherwise your calendar will be nothing more than a schedule for other people’s priorities. Make appointments with your tough tasks to ensure you have time to get them done.
  3. Get Out of Your Inbox – Email is not your job! (Unless you work in customer service…)Get out of your email inbox and get your real work done. Close your email client when you are not working in it. Your email will still be there when you return.
  4. Say NO When Appropriate – Saying NO is a learned skill. Whether it is to meetings, taking on others’ responsibilities, and more… you need to be able to say NO when necessary.
  5. Always Do Your Most Important Work First – Life has a way of surprising you. Don’t let the unexpected derail your important tasks. Always do your most important items first thing in the day. That way, no matter how hectic your day gets, you have already completed your top priorities.
  6. Don’t Answer the Phone – Don’t answer your phone if you are busy. It’s that simple. Your phone is there for your convenience, not the other person’s. Own your phone, not the other way around.
  7. Turn Off the Notifications - We rely on our technology more than ever, but we also let it interrupt our lives too often. If I went to your house and rang your doorbell constantly you would be upset. Yet, you are fine with your phone constantly ringing, chiming, and vibrating all day long. Turn off those notifications so that you can focus.
  8. Start and End Meetings on Time – This one takes discipline. Start the meeting on time and end it on time. Once you start doing this, you will set expectations with others. Be respectful of everyone’s time in the meeting.
  9. Make Decisions and Live with Them – This one may sound philosophical, but we have conditioned ourselves not to make decisions. The irony is that life is all about choice.Make your decisions and enjoy the journey. A good decision now, always beats a perfect one later.
  10. Have Goals and Pursue Them Daily – There has been much buzz in recent years from the “No Goals” camp. Yet, almost anything worth accomplishing requires long and dedicated effort. Set your goals and pursue them with discipline every single day.

The Unwanted Referral

Posted by Cliff Tuttle| October 6, 2014 | © 2014

No. 1,018

Image: jmacommercialservices.com

Image: jmacommercialservices.com

One of the nicest, kindest things a lawyer or any professional can do is to use his/her knowledge to refer a friend in need to the right specialist.  You hear the story, it clicks and although you cannot help, you know someone who can.

Yet, every time I see a certain TV commercial, which also has a radio version, my blood runs cold.  In it, a newcomer gets a call from her local health insurance “concierge” welcoming her to town.  She appreciates the call.  But then, the conierge offers to refer a new doctor. That, she declares in her thoughts, is really something.

Well, yes it is something.  It is the old “nail down the business for our guys before it gets away” something.  This person is not doing a fellow human being a favor.  She is doing something she’s getting paid for — helping to fill up one of the the family medicine or pediatric practices owned by the hospital that owns the insurance company that hires the concierge.  That’s real service.  Self-service.

Maybe the practice has nice, conscientious and very competent doctors, the kind that anyone really in the know would recommend with gusto.  Everything would be alright then, wouldn’t it?

Now, lets change the commercial just a little.  The nice new neighbor thanks the concierge and says: “Why are you recommending this doctor?  What do you know about her?  What have you personally experienced that makes you want to recommend her?

Pass that test and maybe you should take the recommendation.

CLT

The Last Bastion of Smoking is Collapsing — the Home.

Posted by Cliff Tuttle| October 4, 2014 | © 2014

No. 1,107

Image: smchealth.org There appear to be places around the country that already ban smoking in apartment dwellings.

Image: smchealth.org
There appear to be places around the country that already ban smoking in apartment dwellings.

The Allegheny County Housing Authority recently announced that it is banning smoking inside the building at 5 public housing locations. As the New York Times and many other publications have observed, this is a national trend.

Of course, some residents have expressed outrage and disbelief that the Constitution does not protect them from the prying eyes (or nose in this case) of the government in the sanctuary of their home.  But the truth is, it is all a matter of contract.  If the lease says you cannot keep a pet in the apartment, why not extend the same principle to smoking?

Smoking bans are not confined to public housing, of course.  There are residential buildings that ban smoking in Pittsburgh and elsewhere — predominantly higher-end ones.  Non-smoking apartment buildings are often sought out by renters who have severe allergies to smoke or lung conditions.  One I know of not only evicts smokers, but gives offended non-smokers the right to terminate the lease if bothered by tobacco smoke.  You wouldn’t think that occasional smoking in the next apartment would be readily detectable or provable.  Seems logical, but just try it in a non-smoking apartment building.

A recent question posted on AVVO, poses this issue from the tenant’s perspective where the lease is silent. The questioner writes:

“Cigarette smoke triggers migraines for me, and it’s been miserable since the new tenants moved in. This is my 5th year living here, and I haven’t had any major issues until now. The apartment building has “No Smoking” signs on the doors from outside, but my landlord says it’s not in the lease so there’s nothing they can do. They tried to plug the space in the baseboard heating between the apartments (with packing blankets? seems like a fire hazard, but not my business), but it’s an old building and it seems that there’s only so much that they can do. 

Am I stuck? I’m so tired of not being able to stay in my own home without getting sick.

I do have the emails in which I asked my landlord to address the issue & the responses where they said that they couldn’t do anything more, if that’s at all helpful. They suggested that I get an air purifier or light a candle; I had a humidifier with a filter, but one that was supposed to last 3 months lasted about 4 days before it was black. It also didn’t help terrifically, nor does the candle (it covers it up, which doesn’t help the migraine). I’m young (23) and have an auto-immune disease, so my health is something I try to protect as much as possible.”
I gave the following answer on AVVO:
” As a practical matter, you do not yet have a legal remedy. I say not yet, because the law is trending in this direction. Public housing projects around the country are banning smoking and I think that many private landlords will pick up on the idea.Nevertheless, if you are willing to do so, you could just refuse to pay the rent, forcing the landlord to commence eviction proceedings. Of course, you would have to have someplace lined up to move right away. Finding a smoke-free building may be difficult at the present time. Your landlord, like most, probably uses an older form lease that doesn’t have a smoking ban.Although there may be other legal avenues available, they will take too long and cost too much. By the time a non-landlord-tenant suit would come up for trial, the lease would have expired.”

Yes, you the tenant can  always stop paying and be ready to move.  But, not surprisingly, that is not the outcome that most tenants in similar situations expect.  They want the landlord to evict the other tenant or make him stop smoking. The American Nonsmokers Rights Association is encouraging residential tenants to file lawsuits intended to do just that.

Pittsburgh and most other major cities passed ordinances decades ago banning smoking in restaurants, offices and other public places.  Some states, including Pennsylvania, have followed. There are a growing number of statewide smoking bans outside Pennsylvania and some appear to apply to private apartment buildings.  It is only a matter of time until the Pittsburgh City Council passes an ordinance banning smoking in private apartment buildings.

CLT

UTPCPL Seminar Scheduled For December 17

Posted by Cliff Tuttle| October 2, 2014 | © 2014

No. 1,106

consumerI have committed to present a new legal seminar on the Unfair Trade Practices Consumer Protection Law (UTPCPL).  As in the past, this seminar is  sponsored by CCAC and will probably be presented at the North Campus.  The session, which will be from 6:30 to 9:30 PM on December 17, will be eligible for 3 hours of Pennsylvania Continuing Legal Education (CLE) credit.

I hope to present this seminar again in 2015 at a different CCAC location.

The UTPCPL was first adopted in 1968.  However, its scope has been greatly expanded over the years by  being linked to subsequent consumer protection statutes.

Typically, the last section of the new enactment will say that the violation of the new statute constitutes a violation of the UTPCPL.  In addition, the UTPCPL is frequently plead in tandem  with a wide variety consumer-related causes of action in order to justify exemplary damages, up to three times actual damages, and attorneys fees. For example, there were two federal cases decided in 2014 involving consumers who cited UTPCPL  claiming title insurance companies overcharged for title insurance on refinances.  We’ll explore this phenomenon in future blog posts and in the seminar.

Possibly the most important change in case law regarding the UTPCPL initially developed in the federal courts. Under the changes made in the 1989 amendments, it was no longer necessary to prove the elements of common law fraud to state a cause of action under the “catch-all” provision of UTPCPL.We’ll talk about that too.

If you are a civil litigator with cases that involve consumer issues, this is an area of the law that demands your attention.  Although UTPCPL is almost 50 years old, it is emerging today as  the most important consumer protection law in Pennsylvania.

CLT

While We weren’t Looking, Pittsburgh Legal Back Talk Rose to No. 152 in Law Blog Rankings.

Posted by Cliff Tuttle| September 29, 2014 | © 2014

No. 1,105 I haven’t read the AVVO law blog rankings for a while, so it was a pleasant surprise to see that PLBT had risen to number 152 among law blogs in number of visits. Not that my goal has ever been to have a high number, but it was depressing to see PLBT down in the 300′s — especially when it was being outranked by certain blogs that had shut down years ago.  My goal has always been to provide an interesting discussion of interesting legal topics, with a Western PA emphasis.  Rankings are not the goal, but its nice to be appreciated. Staying fresh is a problem for blogs of every kind.  You can’t say the same thing over and over without becoming a crashing bore.  In addition, you often can’t talk at all about exciting issues that you are in the process of litigating.  Ethics, you know.

Mike Nifong Image: thesmokinggun.com

Mike Nifong
Image: thesmokinggun.com

I  noticed that a venerable blog I often read stopped posting this July, Durham in Wonderland. Although it last posted in July, it still outranks PLBT on the AVVO charts by a few slots.  This blog followed a single case, the criminal prosecution of the Duke University lacrosse team, starting in 2006, by now-infamous Durham NC DA Mike Nifong.  When the evidence starting turning the other way, Nifong started manufacturing his own. And it eventually developed that he hid the key DNA evidence that exonerated the defendants.  When the dust had finally settled, Nifong was disbarred. But the blog, Durham in Wonderland, went on and on. I had considered starting a similar one-case blog on Sandusky and its spin-offs. That might have worked out fairly well, since the legislation generated by the Sandusky case is voluminous and the the Penn State  trials are still in the future. But I’m glad I never followed up on that.  There would have been a lot work to put out such a publication.  But I knew that that my heart wouldn’t have been in it.  And that’s the secret to keeping it fresh. CLT

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Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 40 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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