Pittsburgh Legal Back Talk

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

1345 Posts and Counting

Thank You, Fire Fighters for Your Timely Assistance.

Posted by Cliff Tuttle| July 11, 2017 | © 2017

No. 1,345

We take for granted first responders, including firemen, most of whom are volunteers.  When called upon, they are required to do important tasks that are frequently dangerous and physically demanding.

Last night, large tree branches in our front yard fell onto the electrical wires.  The fire department came quickly and assisted the electric company in removing the branches from the wires and in clearing a large amount of debris from my neighbor’s driveway.

Kudos to Bill, Bob, two men named Chris, Mike and Carl.

CLT

TENANT: Make Sure You Know What You Are Getting Before Signing Lease.

Posted by Cliff Tuttle| July 11, 2017 | © 2017

No. 1,344

I get variations on this question, which I answered below in AVVO, all of the time.  Although under the law of contracts, the landlord did not provide what was bargained for, as a practical matter, the tenant has no remedy.

 

Here’s a Ninth Birthday Poem

Posted by Cliff Tuttle| July 9, 2017 | © 2017

No. 1,343

In honor of this blog’s ninth birthday, I republish a poem I picked up in Wikisource.  Its written by Algernon Charles Swinburne, Victorian poet.

A NINTH BIRTHDAY.

February 4, 1883.

I.

Three times thrice hath winter’s rough white wing
Crossed and curdled wells and streams with ice
Since his birth whose praises love would sing
Three times thrice.
Earth nor sea bears flower nor pearl of price
Fit to crown the forehead of my king,
Honey meet to please him, balm, nor spice.
Love can think of nought but love to bring
Fit to serve or do him sacrifice
Ere his eyes have looked upon the spring
Three times thrice.

II.

Three times thrice the world has fallen on slumber,
Shone and waned and withered in a trice,
Frost has fettered Thames and Tyne and Humber
Three times thrice,
Fogs have swoln too thick for steel to slice,
Cloud and mud have soiled with grime and umber
Earth and heaven, defaced as souls with vice,
Winds have risen to wreck, snows fallen to cumber,
Ships and chariots, trapped like rats or mice,
Since my king first smiled, whose years now number
Three times thrice.

III.

Three times thrice, in wine of song full-flowing,
Pledge, my heart, the child whose eyes suffice,
Once beheld, to set thy joy-bells going
Three times thrice.
Not the lands of palm and date and rice
Glow more bright when summer leaves them glowing,
Laugh more light when suns and winds entice.
Noon and eve and midnight and cock-crowing,
Child whose love makes life as paradise,
Love should sound your praise with clarions blowing
Three times thrice.

Pittsburgh Legal Back Talk Turns 9.

Posted by Cliff Tuttle| July 9, 2017 | © 2017

No. 1,342

That’s right, 9.

That’s pretty old for a legal blog. Without insulting anyone, I have observed that most lawyer bloggers (Blawgers, so they say) drop off after about a year.  They apparently run out of ideas.  I have had dry spells from time to time, too. Everybody does.  But I never completely stopped writing. And I try not to write the same piece over and over in different format.

Some blawgers write about their cases.  I don’t — except an occasional reference in passing to a case long ago. Some do, like one public defender I recollect, who got into trouble for violating client confidence.

They greatest source of inspiration is reading other blogs.  I read one or more almost every day.  I am always looking for something fresh.  If I have picked up an idea or two from your blog and didn’t give you credit, I apologize for my thoughtless oversight.

It would be great to get close to 1,500 posts by this time next year, when we hit 10.  If you have an idea for something special to do on the 10th anniversary, I’d like to hear it.

CLT

Common Level Ratio Down (slightly) in Allegheny County

Posted by Cliff Tuttle| July 9, 2017 | © 2017

No. 1,341

Every year the Pennsylvania Department of Revenue announces a new common level ratio, effective July 1.  It is a factor multiplied by the assessment which gives a calculation of the fair market value for purposes of paying realty transfer tax when a deed is recorded for no or nominal consideration. It is created by taking a random sample of transactions and computing the ratio of the sales price to the assessment in each case and then computing the average.

The current ratio is 1.4.  That means, if the assessment of a vacant lot is $10,000, you multiply it by 1.4 to get a fair market value of $10,400.00.  Of course, if the property is sold in an arms length transaction, you use the sales price, not the CLR, to compute transfer tax.

Last year, the CLR was 1.5.  It has been creeping up since 2001.  It was 1.00 in 2001, right after the reassessment in that year.  In 2000, just before the reassessment, the CLR was 5.24.

Not all Counties have rising CLR.  In Armstrong County, which hasn’t had a reassessment since 1997-8, the ratio is 2.11.  In the assessment year, the ratio was set at 2.00.

Westmoreland County, which hasn’t reassessed in many years, the CLR is 6.17. And in Washington County, which just completed a reassessment, the CLR is 1.00.

CLT

 

Two Entertaining Blawgs from Sunny Florida.

Posted by Cliff Tuttle| July 3, 2017 | © 2017

No. 1,340

1.  Gerstein Justice Building Blog, aka Rumpole Blog.

2. Southern District of Florida Blog, which just celebrated it 12th birthday with over 3,000 posts.

Mamas, Don’t Let Your Babies Grow Up to be Lawyers.

Posted by Cliff Tuttle| July 3, 2017 | © 2017

No. 1,339

Image: Pinterest
W & W: Definitely not lawyer material, but they’re richer than you are, aren’t they?

 

For a very long time, we have been aware that law schools have been producing more lawyers than the market required.  Yet, they kept on enrolling.  So, when USA Today runs a story about the first accredited law school to plan to close, is it even news?

This story has been beaten to death. Everybody who has made the choice to join the profession in the last 40 years was warned over and over.  But we did it anyway.  Why?

 

Because there is nothing you can do in this world that is like practicing law. Nothing.

Of course, if you are a recent grad thinking about being a lawyer primarily for the money, think harder.  That’s not to say it cannot happen.  If it does, chances are you do it mostly because you love it.  Which is the right reason to choose any calling in life.

CLT

 

 

 

“Trust Me.” (Not)

Posted by Cliff Tuttle| June 29, 2017 | © 2017

No. 1,338

Here’s another one.  But they are getting more sophisticated.  Notice the ribbon on the upper left that says: “This message is from a trusted sender.”  Sounds like a Jedi mind trick.

The object, of course, is to get you to click the link that says “verify”.  But you won’t, right? Don’t let this stranger in the door. Ever.

I recently received a solicitation through AVVO, purportedly from a person who was the chief executive of a company on the West Coast.  He said he needed to have an agreement of sale prepared in my location.  Checking Google, this was the name of a real chief executive of a real company.  But the link that he wanted me to click was an email address that misspelled his name.

I responded on the safe AVVO link.  A couple of days later, I received a response through the AVVO system requesting me to contact him on the link he provided.

What is the origin of that expression, “Come into my parlor said the spider to the fly? Here’s the answer.

Zoning: Interesting Opinion on Failure of Municipality to Enforce its Setback Requirements.

Posted by Cliff Tuttle| June 28, 2017 | © 2017

No. 1,337

Image: Explore Pa. History

Mr. Justice Musmanno wrote an entertaining opinion in 1963 on a zoning case in which the homeowner replaced a stoop and small overhang with a larger concrete slab and awning.  The concrete slab and overhang, as it turned out, had been in violation of the setback ordinance which existed at the time of the original installation, so it couldn’t be a nonconforming use.  The truth is, lots of stoops are built in violation of the setback lines and nobody complains because they are just stoops.  From the municipal viewpoint, such a violation is de minimis.  The larger patio and awning, not so much.  The Musmanno opinion holds that the municipality cannot fail to enforce its zoning ordinance for ten years and then pounce when the homeowner expands and improves the encroaching feature. To the best of my knowledge, this case has not been overruled by the Supreme Court and is therefore good law.

412 Pa. 570 (1963)

Heidorn Appeal.

Supreme Court of Pennsylvania.
Argued October 7, 1963.
November 27, 1963.
Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O’BRIEN and ROBERTS, JJ.

Roger W. Hager, for appellant.

No argument was made nor brief submitted for appellee.

OPINION BY MR. JUSTICE MUSMANNO, November 27, 1963:

On November 6, 1953, Herman Heidorn and Edna Mae Heidorn, his wife, purchased in Stonycreek Township, Cambria County, a one story frame house which sat back 25 feet from Coldren Street on which it fronted. The dwelling was ornamented with an ugly, gabled wooden projection above the outer doorway, intended presumably to protect visitors from the rain as they knocked at the door for admittance. Beneath their feet the visitors stood on another ungainly projection (this one of stone) called a stoop. The lower contrivance measured 6 to 7 feet in width and extended forward toward Coldren Street 4 or 5 feet. The dimensions of the miniature roof extended a little beyond the measurements of the stoop below, for a good reason. Otherwise, the visitor would receive not only the rain from the skies but the water collecting and falling from the overhanging wooden gargoyle.

For reasons which are unexplained, this porch roof has been referred to in this case by witnesses and lawyers as a “stoop”, so that, if this terminology were to be accepted as correct, the house was equipped in 1953 with two stoops. Webster’s Dictionary defines a stoop as “a raised platform at the entrance of a house with steps and, usually, seats; hence, any small porch at the entrance of a house.”

The overhead eyesore has, therefore, incorrectly been called a “stoop”. For purposes of clarity, it will be called hence forth an overhang.

On March 11, 1958, Stonycreek Township enacted an ordinance (which was re-enacted on April 28, 1959), providing that the building line of all dwellings would be 25 feet from the street. In July, 1959, the Heidorns had their house covered with aluminum siding. In this operation the overhang and the underfoot stoop were removed and replaced by an 18-foot-wide aluminum awning, extending 10 1/2 feet forwardly away from the house. The stoop was replaced by a concrete slab of a size slightly smaller than the overhead aluminum awning so that drippings from the awning would fall on the ground and not on the concrete and people standing thereon. The awning was supported by four slender ornamental wrought iron posts.

Shortly after these improvements were made, the township informed the Heidorns that their awning and slab encroached on setback territory. The Heidorns at once applied to the zoning board of adjustment for a variance, which was refused. They then petitioned the Court of Common Pleas of Cambria County for a variance, submitting that the original overhang and stoop were a nonconformance of the zoning ordinance which had been enacted prior to the purchase of the house by the Heidorns, and that the installation of the awning and platform did not produce such a substantial change in status that the householders lost the privilege of a nonconforming use.

The court took additional testimony and granted the variance. The board filed exceptions and the court, in considering the exceptions, concluded that the applicants were not entitled to a variance but that they could legally retain the improvements described, because they amounted to a reasonable extension of a nonconformance. Did the court of common pleas abuse its discretion or ignore law, in reaching the conclusion stated?[1] We cannot say that it did.

It developed in the proceedings below that there had been in existence, even when the house was originally constructed (in 1950) an ordinance which imposed a setback requirement of 25 feet. The Township, therefore, argues that the Heidorns were not entitled to the privilege of a nonconforming use, but the court held, and properly so, that since the township had allowed approximately 10 years to pass without objecting to the ordinance violation, it was guilty of laches and could not now sustain a violation on the basis of the original ordinance of 1942.[2]While courts are reluctant, and should be, to impose the sanction of laches on governmental divisions, equity cannot close its eyes to the sloth, indifference or official neglect of a municipal body any more than it can to the neglect of an individual where such neglect harms an innocent person.

There is nothing in the record to excuse the township’s indifference to the presence of the overhang and stoop in front of the Heidorn house. It cannot be said that these objects were concealed from public view. The overhang stuck out like the proverbial sore thumb, and the stoop stuck out like the stoop it was for the world to see and stumble over.

The township argues that there is a difference between the original wooden overhang and the present aluminum awning. The overhang was attached to the house by diagonal braces and thus was suspended in midair, as it were, and therefore, the township argues, it was not part of the building line and accordingly did not violate the setback restriction. The awning to 574*574 the contrary, the township points out, is supported by posts anchored in the platform beneath, and therefore the ensemble constitutes a moving forward of the building line into the prohibited setback No-Man’s Land. This argument crumbles at the slightest touch of the pointer of reason. The township could not possibly argue that if the Heidorns had built an additional room or two, latitudinously extending from the roof and supported by diagonal braces that this would not constitute an encroachment on the setback limitation.

The original homely overhang was there for the world to see and frown upon and if it did not offend the esthetic senses of the township for some ten years, the present attractive awning and platform should not. The aluminum porch which now graces the front of the Heidorn home improves its appearance considerably and in no way impedes enjoyment by others of their property. There is not the slightest suggestion that the patio effect of the front of the Heidorn home is detrimental to the welfare, safety and health of the community. The lower court, with acute perceptiveness, legal appreciation, and practical wisdom, said: “While there is an enlargement of the stoop into what might be called a patio, this enlargement only encroaches an additional 5 1/2 feet into the setback line, and from the testimony and exhibits (pictures before and after the construction) it cannot be said that this is such a change in the nonconformance that it is not a reasonable extension. The appellants have merely done what any logical person would do, and that is they have attempted to beautify the front of their property and house by the planting of a nice lawn and shrubbery, and thereafter by covering the entire house with aluminum siding and removing at the same time this stoop which would then be an eyesore, and replacing it with a canopy and cement slab more in keeping with the architectural style of the building, thus resulting 575*575 in a change in the esthetic nature of the neighborhood and the use of the property.”

No citizen of the township has objected to what the Heidorns have done. Some 75 houseowners in the immediate vicinage signed a petition urging retention of the patio.

The township stands not on a logical platform but on a dialectical stoop to argue its case. It says that if the Heidorns are permitted to retain their patios then every “property owner in the Commonwealth of Pennsylvania” is entitled to have a front porch and that therefore building setback lines will become a “nullity.” This is like worrying that the oceans will some day go dry. The law, while concerned about the future, focuses its attention on the immediate problem at hand and cannot allow an injustice to occur on the theory that a certain decision will become a ghost to haunt posterity.[3] It cannot be influenced by the argument that if a certain privilege is allowed a hunchback, the whole world will become humpbacked.

The short answer to the appellant’s thesis in this field is that if our decisionbecomes a precedent to allow other exceptions to setback requirements, so let it be. When another case comes along to duplicate the history and circumstances of this case, the decision should be, and must be, the same, namely, that the householders will be entitled to a reasonable extension of a nonconforming use.

Affirmed.

Mr. Justice BENJAMIN R. JONES, Mr. Justice COHEN and Mr. Justice EAGEN dissent.

[1] Archbishop O’Hara’s Appeal, 389 Pa. 35, 50.

[2] “Laches however may be imputed to a municipality that has stood by and permitted large expenditures to be made upon the faith of an irregular order of court, or of municipal consent informally or tacitly given, where formal consent would have been effective.” (Pgh. v. P. & L.E., 263 Pa. 294). Stahl v. First Pennsylvania Banking and Trust Company, 411 Pa. 121.

[3] The Township cites Fagan v. Zoning Board of Adjustment, 389 Pa. 99, and Yocum Zoning Case,393 Pa. 148, in support of its position. We have examined these cases and find them inapplicable as to facts and appertaining law.

 

Landlord & Tenant: When the Occupant is not the Tenant.

Posted by Cliff Tuttle| June 26, 2017 | © 2017

No. 1,336

The Continuing Education of the Bar (CEB) Blog raises some important questions for landlords to consider.  When the apartment is not be occupied by the party who is paying the tab conflicts can arise.  For example, when an employer rents an apartment for one or more employees, you the landlord may be placed in a double bind unless you have a contract with the occupant as well.

In the California case noted in the CEB, an employer who had entered the contract and was paying the tab directed the landlord to lock out the tenant and remove the furniture, which it did.  In so doing, the occupant was deprive of statutory rights.  It should be good policy to have every occupant who is over 18 sign the lease or a guaranty.  Thus, if the contracting party terminates the lease but the occupant stays on, the occupant will continue to have an obligation to pay.

In addition, the occupant should sign an agreement to comply with rules relating to occupancy.

Strangely enough, landlords often find themselves evicting strangers — people who took over occupancy from the tenant without permission.  Landlords often think they can just change the locks.  Problem is, you have to prove that this successor tenant doesn’t belong there. This is especially true when the individuals were sharing the apartment with the tenant, such as family members.

CLT

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.

  •  

    Click Here to Contact Cliff
  • Subscribe to our feed

    Search

    Admin