Pittsburgh Legal Back Talk

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

1039 Posts and Counting

Can a Landlord Email the List of Damages after Move-out To the Tenant?

Posted by Cliff Tuttle| April 23, 2014 | © 2014

No. 1,039

Image: mcyfc.org

Image: mcyfc.org

Under Section 512 (a) of the Landlord Tenant Act, “Every landlord shall within thirty days of termination of a lease or upon surrender and acceptance of the leasehold premises, whichever first occurs, provide a tenant with a written list of any damages to the leasehold premises for which the landlord claims the tenant is liable.  Deliver of the list shall be accompanied by payment of the difference between any sum deposited in escrow, including any unpaid interest thereon, for the payment of damages to the leasehold premises and the actual amount of damages to the leasehold premises caused by the tenant.”

The statutory language says nothing about the method of delivery.

Since the tenant is gone from the leased premises, it is not very likely that the notice will be delivered in person.  As a practical matter, this notice is almost always delivered by mail.

The need for a mailing address was recognized in subsection (e), stating: “Failure of the tenant to provide the landlord with his new address in writing upon termination of the lease or upon surrender and acceptance of the leasehold premises shall relieve the landlord from any liability under this section.”

However, the statutory language does not specify that that delivery must be by mail.  Today, landlords and tenants frequently communicate throughout the lease term by email and text message.  Why not, then, deliver the list of damages by email?  Or for that matter, why not deliver the new address by text message?

As long as there is no money to be delivered, there seems to be no reason why the the list of damages damages could not be delivered by email.  But in a world where people pay each other electronically, say be Paypal, it might be possible to both deliver the notice and the escrow balance at the same time.  There are no cases on this.  Not yet.

This leads to the question whether the statutory requirement that the tenant provide his/her new address is obsolete when the email address or cell phone address remains the same.  Could the tenant say that the landlord knew where he/she lived and therefore didn’t have to give a new address?

Probably not.  The landlord may prefer to send snail mail for a variety of reasons.  Moreover, if the damages exceed the escrow, as they often do, the landlord will need to know where to serve the suit papers.

Best practice is to both mail the notice and to send the email. If the letter comes back for any reason, you still have sent the email.

CLT

 

Applying the Unfair Trade Practice and and Consumer Protection Law to a Landlord Tenant Case.

Posted by Cliff Tuttle| April 20, 2014 | © 2014

No. 1,038

Andrew W. Hansen, Alec Spergel, Colin Schwartz and Cory Nord-Podberesky v. Michael Bupp, Allegheny County Common Pleas Court, AR 12-01711, 162 P.L.J. 38.

The opinion, as it appeared in the February 7, 2014 edition of the PLJ is presented in full below.  After a jury trial, the jury awarded $3,990.00 to the Plaintiffs.  Judge O’Reilly found that the Unfair Trade Practices and Consumer Protection Law applied and awarded $10,000 for attorneys fees, $457.25 for costs and $6,010 in exemplary damages.  The case was not appealed.

****************************************************

I. FACTS
This case presents the question of whether and how the Unfair Trade Practice and Consumer Protection Law (UTPL) 73 P.S. 201-1 et seq. applies to landlord tenant matters. This case consisted of a breach of contract action that went before a jury and the ancillary claim under the UTPL which is before me now. The jury verdict was $3,990.00 for Plaintiff.

Here the Plaintiffs, all students of the University of Pittsburgh, entered a lease with the Defendant, Michael Bupp, for premises at 3602 Dawson Street in the Oakland section of the City of Pittsburgh. They signed the lease in March which was to begin on August 1, 2012. The rent was $1,995 per month and the first and last month was posted. They posted a security deposit of $1,995.00 during the month of March or April 2012. The total posted with Bupp was $5,990.00. This was the agreed upon number although the testimony would suggest that $5,985.00 was posted.

The Plaintiffs were all out of town residents and only occupied the leased premises in late August. The first to occupy the property was Alec Spergel who on or about August 25, 2012 found some problems to exist such as a bath drain, rear door lock and first floor windows that did not lock securely. When Spergel telephoned Bupp and set forth these problems, Bupp erupted into a tirade against “you people” and told them to leave. This eruption was laced with expletives to underscore the vehemence of Bupp’s directive.

Faced with such an explosive response to relatively mild requests in regard to the premises, the Plaintiffs took Bupp at his word and moved out and found other accommodations.

A day or two later Bupp’s handyman made some repairs to the windows but did not know that Plaintiffs had already left.

In due course Plaintiffs asked for a refund of the money they had paid Bupp which was the $5,990.00 noted above. Bupp replied that he would refund nothing because they were in breach of the lease and he had not been able to lease the premises until October and at a lower rent. Thus he would refund nothing.

Bupp testified that his reason for not refunding anything to the Plaintiffs was his contention that they broke the lease. He acknowledged his profanity but he denied he told them to leave and further asserted that the conversation had closed on a friendly note and he assured the Plaintiffs he would fix all of their issues.

The case went to the jury which returned a verdict in favor of Plaintiffs and against Bupp in the amount of $3,990.00.

II. ANALYSIS
After the jury was discharged, counsel for Plaintiff set forth his claim under the UTPL for counsel fees plus costs and he him-

self testified to the time he spent on the case, billed at $200 an hour. The total was $21,265.45 of which $20,660,00 is claimed as fee and $605.45 as costs as set forth in an exhibit attached to his Motion, Counsel also cited Wallace v. Pastore, 742 A.2d 1090 (Pa. Super). For the proposition that: (1) $200 an hour was a reasonable rate and (2) the UTPL could apply when a landlord gave false information to tenants as to why he was not refunding their security deposit. Wallace involved a landlord who refused to return a security deposit and his defense was that there was significant damage caused to the rented premises by the tenants. At trial the Court found that the defense of damage to leased premises was a “knowing misrepresentation” because there were no such dam- ages. This finding was based on the UTPL’s prohibiting misrepresentation that services, replacements or repairs are needed if they are not needed.”

As to the application of UTPL, Wallace, supra does give support to the contentions here that Bupp’s throwing the Plaintiffs out and then not refunding their deposit is the kind of unfair practice that is within the scope of UTPL and I find that it does apply.

While no claim for repairs or replacements or services was made by Bupp, his defense is that they breached the lease and he had to take a loss to re-rent it. However, his throwing the Plaintiffs out when they had barely moved in and then keeping all of the money deposited with him strikes me as unfair, an abuse of his superior bargaining position and unfair conduct The UTPL also prohibits, at Section 201-2(4) (xxi) “Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding.” The law gives me discretion to award less than 3 times the verdict. See 201 – 9.2. Thus I am satisfied that the UTPL does apply. Accordingly, I will increase the verdict of $3,990.00 to $10,000.00.

Obviously, the jury resolved credibility issues against Bupp and I do the same. The verdict suggests that the jury gave credit to Bupp for the month of August since that is when it began irrespective of when they occupied the house. Equally obviously, they awarded the last month’s rent and the security deposit to come up with $3,990.00.

With respect to the exemplary damages claimed, the comment of defense counsel is not lost on me when he exclaimed “$20,000 for an Arbitration case!!!” Nevertheless, adequate representation for litigation does take time no matter what the amount in con- troversy. Further, we need to keep in mind the remedial purposes of both the UTPL and the Landlord Tenant Law.

As to the attorney’s fee I am unwilling to accord the full claim asserted by Plaintiff’s counsel. While $200 an hour may be a rea- sonable rate, there was much unnecessary work done including the attempt to bring local government pressure to bear on Bupp. Similarly, the extensive discovery requests and the request for admissions are excessive, particularly when they were all struck by a discovery judge.

Analyses of that bill also shows what I consider an inordinate amount of research, preparation, and correspondence and con- sultation with the parents of the plaintiffs. A more reasonable fee, considering the facts of this case and, that it involved both an arbitration and a jury trial make a fee of $10,000 more reasonable. As to costs, I find items therein that really are part of counsel’s overhead – like postage and printing – are not properly taxable as costs. The costs I do award are for filing fees, service fees and the deposition transcript for a total of $457.25.

In conclusion, I will mold the verdict entered September 10, 2013 in the amount of $3,990.00 to add $10,000 in counsel fees, $457.25 in costs, and an additional $6,010.00 as exemplary damages for a total of $20,457.25.

So Ordered,
Dated: November 1, 2013

BY THE COURT: /s/O’Reilly, J.

Implied Warranty of Habitability and Punitive Damages

Posted by Cliff Tuttle| April 19, 2014 | © 2014

No. 1,037

 John Cramer and Ellen Cramer v. Stanford D. Custer, Sr. and Mary Custer d/b/a Mountaindale Apartments, No. 1585 MDA 2012 (Superior Court, 2013), vacated and remanded at 82 A.3d 462 (2013).

image: moldinspectionnow.com

image: moldinspectionnow.com

The Cramers alleged in their suit that their landlords, the Custers, knew that the HVAC system in the apartment they rented did not operate correctly.  While the Cramers were away on a trip, the air conditioning malfunctioned, “ causing toxic mold to grow in the apartment which in turn damaged Appellees’ property.”

In addition to actual damages of $146,301.47, the jury awarded punitive damages of $100,000.00.

In their appellate brief, the Custers asserted that the trial judge erred in submitting the issue of punitive damages to the jury. And after the jury awarded punitive damages, the trial judge should have granted  Judgment Not Withstanding the Verdict. “Punitive damages were not warranted”, they stated, ” where there was no evidence presented at trial showing outrageous, malicious, wanton, willful, oppressive, reckless, or indifferent conduct on the part of the Appellants”, the landlords.

It is the responsibility of the trial judge, noted the Superior Court opinion, to determine whether there is sufficient evidence presented at trial to support an award of punitive damages.  ”We review the court’s decision for an error of law.”

“[I]n Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.”

The trial court had stated the following conclusion in its opinion:

“The Appellants held the apartment out to be safe and habitable, when in fact, they knew or should have known that it was not. The Appellants were well aware of problems with Apartment No. 13′s HVAC system and failed to warn and/or remedy the issues prior to the [Appellees'] tenancy. Furthermore, [Appellees] were encouraged to rent the apartment despite Appellants’ knowledge of their travel plans. Appellants displayed a conscious disregard of the risk posed to Appellees. Thus, there was enough evidence presented to support outrageous, malicious, wanton, oppressive, reckless, or indifferent conduct on the part of Appellants that lead to the failure of the HVAC system and substantial loss to Appellees. In turn, [the] issue of punitive damages was properly submitted to the jury for their assessment of Appellants’ conduct.”

After reviewing the testimony of the HVAC repairman, Mr. Grove, in the trial record, the Superior Court opinion noted that in this testimony “evinces Appellants’ efforts to fix the problems by having Mr. Grove repair and maintain the system. Appellees offered no evidence that Mr. Grove informed Appellants that the air conditioning unit was at risk of complete failure and that such a failure may result in mold infesting the apartment.”

In other words, although the landlords knew generally about the problem, they were attempting to fix it and never knew that there was a risk of total failure which might create conditions suitable for the growth of toxic mold. The Superior Court concluded that, as a matter of law, the evidence could not support an award of punitive damages.  The Superior Court held:

“Thus, even when viewed in a light most favorable to Appellees, Appellees’ evidence failed to establish that Appellants had a subjective appreciation of the risk of harm to which Appellees were exposed. Nor, for that matter, does the evidence establish that Appellants failed to act in conscious disregard of that risk. Consequently, the trial court erred by allowing the jury to consider the issue of punitive damages, and Appellants are entitled to judgment on that issue as a matter of law.”

LOL with “Lowering the Bar”

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

No. 1,036

Credit: loweringthe bar.net.  This may be the most litigious banana in the US.  To learn why, consult Lowering the Bar.  Scroll down -- you can't miss it.

Credit: loweringthe bar.net. This may be the most litigious banana in the US. To learn why, consult Lowering the Bar. Scroll down — you can’t miss it.

I’ve added Lowering the Bar to the blogroll here because it is consistently funny and poignant at the same time.

Here’s the beginning of a recent post:

TSA Turns Away Mute Stroke Victim

“KABC in Los Angeles reported on April 5 that our heroes in the TSA had successfully prevented another innocent disabled person from flying. This time it was a wheelchair-bound stroke victim who couldn’t answer questions about her expired driver’s license because—also due to the stroke—she is mute.”

After telling the story, Kevin Underhill, the author comments:

“Maybe it’s not impossible that a terrorist would disguise herself as a 58-year-old mute stroke victim in a wheelchair (yes it is), but if she did, she would most likely not show up with an expired driver’s license. Don’t you think? Genius?”

Kevin writes books, too, such as “The Emergency Sasquatch Ordinance“. He assures us that this is a work of non-fiction and that all of the laws, ordinances, etc.  in this book a real — or at least were before they were laughed out of existence.

CLT

 

Zoning: Lack of Standing Must Be Raised at Zoning Hearing Board Level or it is Waived.

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

No. 1,035

John Scott v. City of Philadelphia, Zoning Board of Adjustment and FT Holdings L.P.,No. 154 C. D. 2013 (Commonwealth Court).

Image: thisoldhouse.com

Image: thisoldhouse.com

FT Holdings, L. P. appealed the denial of a permit to build a proposed condominium structure to a greater height than permitted by the zoning ordinance.

John Scott appeared through an attorney at a zoning hearing, arguing that there had been inadequate notice of the zoning hearing and that the proponent, F T Holdings, L.P., had not demonstrated undue hardship that would entitle it to a variance of height restrictions.  The ZHB granted the variance and Scott appealed to the Court of Common Pleas.

FT moved to quash the appeal because Scott lacked standing, having failed to establish before the ZHB that he was aggrieved by the ZHB’s decision.   Instead, his  counsel made legal arguments to the Board.

Following argument, the common pleas court granted the motion to quash, stating that Scott had not demonstrated that he had an interest that could be affected by the project, or that he was aggrieved by the action of the ZBA.

After analyzing the holdings of cases with nearly similar facts, the Commonwealth Court stated that the case relied upon by Scott, South of South Street Neighborhood Assn. et al. v. Philadelphia Zoning Board of Adjustment, 54 A.3d 115 (2012) was most applicable to the facts in this case.  Since the issue of Scott’s standing was not raised at the ZHB, the challenge was waived.

CLT

 

 

Municipal Claims and Tax Lien Law Amended to Permit Filing of General Judgments.

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

No. 1,034

Act 93 of 2013, which became effective on January 26, 2014, amends the Municipal Claim and Tax Lien Law, which applies in Allegheny County. This statute states that when a tax claim is converted to a judgment, the judgement is not only an in rem lien on the delinquent property itself, but also becomes a general judgment. A general judgment automatically constitutes a lien upon every  parcel of land owned by the judgment debtor in the county. The term “in rem” means “in the thing”. It refers to a lien that applies only to a particular property.

When taxes are delinquent in Allegheny County, the taxing body files an in rem claim in the Delinquent Tax Docket (DTD).  This creates a lien against the delinquent property, but no other.  Later, if the tax lien is not paid, the taxing body may file a judgment, which is necessary to conduct a tax sale.

Under prior law, tax liens remained in rem liens when converted to judgments.  That means that they did not affect other real estate owned by the same owner.   Since January 26, however, when a property is sold, not only must the tax liens on that property be discharged, but also any others that have become judgments after January 26, 2014.  When an owner has multiple tax-delinquent properties, the owner may not be able to sell any one of them in an arms-length transaction without clearing tax lien judgments on all. In practice, this may make many properties impossible to sell.

At this point in time, it is dangerous to speculate on what might happen under specific fact situations.  It will take time for fact-specific cases to work their way through the courts.  Along the way, there will probably be a few surprises.

CLT

 

Real Estate: Right of Rescission under Truth in Lending Act

Posted by Cliff Tuttle| April 16, 2014 | © 2014

No.1,033

Jesinoski v. Countrywide Home Loans, Inc. (Supreme Ct. No. 13-684), from USCA 8th Circuit ,729 F.3d 1092 (2013)

Kieran v. Home Capital, Inc. (Supreme Ct. No. 13-705), from USCA 8th Circuit, 720 F.3d721 (2013).

CountrywideTwo Petitions for Certiorari are pending before the United States Supreme Court regarding what action is necessary for a mortgage borrower to rescind a loan transaction under the Truth in Lending Act (TILA). SCOTUS Blog has summarized the similar but distinct issues in the case as follows:

Jesinoski:

Whether a borrower exercises his right to rescind a transaction in satisfaction of the requirements of the Truth in Lending Act, 15 U.S.C. § 1635, by “notifying the creditor” in writing within three years of the consummation of the transaction, as the Third, Fourth, and Eleventh Circuits have held, or must instead file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held.

Kieran:

Whether, to exercise the right to rescind a mortgage loan under the Truth in Lending Act, it is sufficient for a consumer to notify the creditor in writing within three years of obtaining the loan (as the Third and Fourth Circuits have held, and as the Consumer Financial Protection Bureau has concluded), or whether the consumer must also file suit within that three-year period (as the Eighth, Ninth, and Tenth Circuits have held).

 The petitions and briefs for both cases, which have been linked, were distributed for Confernce on April 18, 2014.
CLT

Texas Court Holds that Heinz Has Trademark Right to Its Ketchup Bottle Design

Posted by Cliff Tuttle| April 16, 2014 | © 2014

No. 1,032

H. J. Heinz Co.

H. J. Heinz Co.

At least in Texas, the Heinz ketchup bottle cannot be duplicated.

Now, what about the upside-down bottle?

CLT

Thank you, AVVO

Posted by Cliff Tuttle| April 16, 2014 | © 2014

No. 1,031

AVVO, the organization that inter alia, provides the public with ratings for lawyers, has increased my rating to 10.0.  That’s the ceiling for AVVO ratings.  Thank you, AVVO.

Key factors behind the increase were the continuing ed seminars I have been presenting to lawyers and real estate agents through the Community College of Allegheny County. In addition, the posts on this blog have been more frequent, with more meaty content, such as frequent reports on important appellate court decisions. After almost 6 years and more than 1,000 posts, I am proud of what Pittsburgh Legal Back Talk has become.  Thank you readers, for your many supportive comments.

I also have continued to answer questions on AVVO Answers, primarily about landlord tenant law and real estate, which are posted on Twitter. They also gave me a Top Contributor Badge for AVVO Answers for 2013, also posted on my website.

Its gratifying to be recognized, but its also a challenge.  I have to live up to the standard. I’m posting the Avvo rating badge in the margin of Pittsburgh Legal Back Talk as a self-reminder. Mediocrity is not an option.

CLT

Adams on Contract Drafting

Posted by Cliff Tuttle| April 13, 2014 | © 2014

No. 1,030

Ken AdamsI have added Adams on Contract Drafting to the blogroll.  The link in the last sentence will take you straight to the Blog, but from there you can explore the rest of the website.

PLBT picked up the predecessor blog “Adams Drafting” soon after we started in 2008.  Then we followed his next venture “Koncise Drafter” when it replaced Adams Drafting in late 2010.

Ken Adams is the author of “A Manual of Style for Contract Drafting” .  He has given his standard seminar “Drafting Clearer Contracts” at many locations in the US and Canada and has given public seminars at many locations around the world.

In Adams on Contract Drafting Ken Adams recently announced that he will be teaching a class at Notre Dame Law School this summer. It will be an intensive three week course starting on August 18, a week before classes start.  It will contain a semester’s worth of material.  If he decides to give the class at one of our law schools in Pittsburgh some time, I’ll make the time to take it.

keep looking »

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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