Pittsburgh Legal Back Talk

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

1100 Posts and Counting

September 8: A Day of Distinction

Posted by Cliff Tuttle| September 8, 2014 | © 2014

No. 1,100

It should not pass without notice that on September 8, 1974 President Gerald Ford pardoned Richard Nixon. That was 40 years ago. Thus ended the Watergate era.

On September 8, 1994, 20 years ago, USAir Flight 427 crashed on approach to the Pittsburgh International Airport. It literally plunged from the sky, killing all aboard.


2,000 years ago, on August 19, one of the most influential leaders of all time died.

Posted by Cliff Tuttle| August 31, 2014 | © 2014

No. 1099




Caesar Augustus, nephew and heir of Julius Caesar, established the foundation for many western institutions that endure today.


Federal Hate Crime Statute Requires “But For” Analysis of Motive — The Amish Beard Cutting Case.

Posted by Cliff Tuttle| August 27, 2014 | © 2014

No. 1,098

United States v. Lovina Miller et al, Sixth Circuit Court of Appeals, decided August 27, 2014.

Image: Guardian.com

Image: Guardian.com

“A string of assaults in several Amish communities in Ohio gave rise to this prosecution under Section 2 of The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The assaults were not everyday occurrences, whether one looks at the setting (several normally peaceful Amish communities), the method of attack (cutting the hair and shaving the beards of the victims), the mode of transportation to them (hired drivers), the relationship between the assailants and their victims (two of them involved children attacking their parents), or the alleged motive (religious-based hatred between members of the same faith).”

“A jury found that four of the five attacks amounted to hate crimes under the Act and convicted sixteen members of the Bergholz Amish community for their roles in them.” 

“At stake in this appeal is whether their hate-crime convictions may stand. No one questions that the assaults occurred, and only a few defendants question their participation in them. The central issue at trial was whether the defendants committed the assaults “because of” the religion of the victims. 18 U.S.C. § 249(a)(2)(A). In instructing the jury on this point, the district court rejected the defendants’ proposed instruction (that the faith of the victims must be a “but for” cause of the assaults) and adopted the government’s proposed instruction (that the faith of the victims must be a “significant factor” in motivating the assaults). Regrettably for all concerned, a case decided after this trial confirms that the court should have given a but-for instruction on causation in the context of this criminal trial. Burrage v. United States, 134 S. Ct. 881, 887–89 (2014). Because this error was not harmless, and indeed went to the central factual debate at trial, we must reverse these convictions. “

The concept behind the Hate-Crime statute is that additional punishment should be given to those who commit a crime motivated by animus against a member of a protected class.  Here we have, so to speak, a series of Amish upon Amish crimes.

Was the statute intended by Congress to apply to such a circumstance — one member of a religious sect assaulting another over differences in doctrinal belief?

The forceable beard cutting was motivated by something different from religious animus.  The perpetrators did not act out of hatred for the victims.  Instead, they acted through a belief that the victims should atone for what they believed to be serious sins by cutting their beards.

However, the Sixth Circuit was able to dispose of this case on jury instructions which were erroneous under the later-decided Supreme Court Case of  Burrage v. United States.  In that case, a different penalty-enhancement statute was applied with a jury instruction similar to that in the Amish Beard Cutting case.  The Supreme Court stated in Burrage:

“We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.”


Former Justice Orie Melvin Not Required To Endure Humiliation, Handcuffed Pictures Stricken from Sentence By Superior Court.

Posted by Cliff Tuttle| August 22, 2014 | © 2014

No. 1,097

Image: Pittsburgh Post-Gazette

Image: Pittsburgh Post-Gazette

The Superior Court affirmed the sentence of Joan Orie Melvin with one important change.  She is not being required to endure the humiliation of being exhibited in a photograph of her in handcuffs after the trial.  The Court held that this was an unnecessary humiliation. We argued for this outcome after the sentence was announced.

On October 15, 2013, at Post No. 993, PLBT stated:

Former Justice Orie Melvin appeared in Court today.  Judge Lester Nauhouse wanted to know why she hadn’t complied with the part of her sentence that required her to send letters of apology to all of the members of the judiciary in Pennsylvania accompanied by a photograph of her wearing handcuffs.  The short answer, delivered by her attorney, was that the sentence was under appeal.

Indeed.  I would be willing to bet a month of lunches that no modern appellate court anywhere in America has ever endorsed such an unusual sentence. And what is the purpose of requiring the former Justice to distribute copies of a photo of herself in handcuffs?  It could only have one effect — humiliation.

And I will bet you a year of lunches that if such a photograph is ever distributed that it will turn up on the internet within 48 hours. And then, on the front page of newspapers around the world.

Am I missing something here? Assuming that former Justice Orie Melvin does not have any such photos lying about, is she supposed to hire a photographer to take a picture of her in handcuffs?  Am I the only person who thinks that this sounds slightly kinky? If I remember correctly, a raft of legislative leaders in this Commonwealth were convicted of more-or-less similar offenses.  None of them were required to distribute photographs of themselves in humiliating circumstances.

If the sentence here is not unusual, why hasn’t it been employed in sentences for similar crimes? Then again, maybe stocks would be better.  I think there may be some available in Williamsburg. And what about a dunking stool?  

But wasn’t that the kind of punishment that the Eighth Amendment was supposed to abolish? The Eighth Amendment is about human dignity. Thats why we don’t have any stocks in the Courtyard of the County Courthouse.

 The Supreme Court, the United States Supreme Court that is, said that handcuffing a prisoner to a post was a violation of the Eighth Amendment in the case of Hope v Pelzer, 536 U.S. 730 (2002).    Part of what made this sort of punishment cruel and unusual was that it humiliated the prisoner so grievously that it was an affront to human dignity.

In Trop v Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren wrote: “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.  While the state has the power to punish, the Amendment stands to assure that this power is exercised within the limits of civilized standards.  Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect.”

Even convicted ex-jurists are entitled to the proper  modicum of human dignity.  Its in the Constitution. CLT –

See more at: http://www.pittsburghlegalbacktalk.com/archives/5953#sthash.wXa2D8Pq.dpuf

Governor Perry’s Veto: What About the Texas Constitution?

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

No. 1,096

Governor Rick Perry

Governor Rick Perry

Without doing any research, I’d be willing to bet a month of lunches that Governor Rick Perry’s budget veto is an unconstitutional Act. Variations on this theme have been tried before, including in Pennsylvania.

And I would double down that bet by predicting that the grand jury indictments against the Governor are unconstitutional as well, and perhaps there is immunity from such prosecution of a sitting governor.

But, then again, we’re talking Texas.  Not someplace civilized, like Pennsylvania.


Remembering Sophie Maslov

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

No. 1,095


This memorial to former Mayor Sophie Maslov was erected in the lobby of the City County Building today.

This memorial to former Mayor Sophie Maslov was erected in the lobby of the City County Building today.

PA Child Protective Services Law Has Undergone Comprehensive Changes Since Sandusky.

Posted by Cliff Tuttle| August 8, 2014 | © 2014

No. 1,094

Image: rhrealitycheck.org

Image: rhrealitycheck.org

More than 70 laws have been enacted in Pennsylvania as a result of the Sandusky case at Penn State, says Joyce A. Hatfield-Wise, Solicitor of the Washington County Children and Youth Services.

At a Continuing Legal Education seminar recently given at the Community College of Allegheny County, Ms. Hatfield-Wise discussed many of the legislative changes to the  Child Protective Services Law and other statutes.  They include:

• Broadening the definition of “perpetrator.”

• Amending the definition of “child abuse.”

• Providing for reporting in situations where the perpetrator cannot be identified.

• Restating immunity from civil liability for those reporting child abuse and those investigating child abuse.

•  Tracking and making punishable the  false reporting of child abuse.

•  Introducing the requirement for a new statewide database intended to promote greater communication and efficiency within the child welfare system.

• Enacting new crimes against children and mandates stricter sentences.



Zoning Variance: Hardship Proven When Sound Barrier on Interstate Highway Blocked View of Advertising Sign.

Posted by Cliff Tuttle| August 5, 2014 | © 2014

No. 1,093

Crosby v. the Zoning Board of Adjustment, No. 1319 CD 2013, Commonwealth Court, filed July 16, 2014.

Image: chacha.com

Image: chacha.com

Clear Channel Outdoor, Inc. owned a double-sided illuminated billboard in the City of Philadelphia in an industrial zone which had been erected as a matter of right a some years before and was now a nonconforming use. The sign was intended to be seen by both northbound and southbound traffic on Interstate 95.

In 2010, the Pennsylvania Department of Transportation erected a sound barrier, which blocked the view of the sign to northbound traffic on I-95.

Clear Channel filed a zoning application for a permit to raise the sign an additional 35 feet.

Clear Channel’s expert witness, a Professional Engineer,  testified that the additional height will not change the lighting characteristics of the sign.It is externally illuminated by four light boxes that are shielded to prevent spill over to the sides.  He testified that the additional 35 feet would be the minimum height necessary to make the sign visible on the highway.

Various parties opposed the sign, including a neighbor who testified that the light from the sign was shining into her kitchen and her daughter’s bedroom.

The Board made findings that the proposes elevation of the sign met the criteria for a variance:

“a. that because of the particular physical surroundings of the Subject Property, a literal enforcement of the Zoning Code would result in unnecessary hardship, in particular,

(i) the sign at issue was originally permitted as of right and is currently a legal nonconforming sign.

(ii) but for the construction of the sound barrier on I-95, the sign would not need to be raised; and

(iii) the sign has been rendered economically valueless as a result of the construction of the sound barrier on I-95;

b. that the conditions which the appeal for a variance is based are unique to the property for which the variance is sought, in particular the construction of the sound barrier on I-95 completely erased the view of the sign from I-95 thus rendering the sign valueless;

c. that the variance will not substantially or permanently injure the appropriate use of the adjacent conforming property especially where, as here, the condominium building was built after the sign was constructed;

d. that the special conditions or circumstances forming the basis for the variance did not result from the actions of the Applicant [Clear Channel] but rather from the construction of the sound barrier on I-95;

e. that the grant of the variance will not substantially increase congestion in the public streets;

. . . .

l. that the grant of the variance will not adversely affect in a substantial manner the Comprehensive Plan for the City.”

The decision of the Common Pleas Court, upholding the ZBA was thus affirmed.


Ownership of Appliances Required by Lease to be Replaced by Tenant.

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

No. 1,092

Image: Turbosquid.com

Image: Turbosquid.com

Here is a very interesting question I answered on AVVO today.

“My lease states that I must maintain or replace the appliances. The stove top and oven were not working properly, so I replaced them and a new refrigerator since the appliances were from 1962. I have just recently gave a 30 day notice to quit and now the landlord will not let me take my appliances but in the lease it doesn’t state they have to stay, just I must maintain or replace what was there at my own expense.”

Here is my answer:

“If you remove the appliances, do not be surprised if your landlord keeps the security deposit and perhaps sues you for an amount over the security deposit to recoup the value of the appliances.

Assuming that the lease does not contain additional relevant provisions, I think that, from your perspective, this issue is worth litigating. However, be aware that the outcome is uncertain. The magistrate does not have the power to order you to return the appliances, but he may be inclined to award damages to the landlord.

Your argument under the lease language is that, if you replaced the malfunctioning appliances, the landlord may not not required to pay anything to repair or replace them during the term of the lease. But once the lease is over you can take them because they are yours.

During the lease term, he doesn’t have to do anything or spend any money. But after the lease term, you argue to the magistrate, the landlord has to provide new appliances for the next tenant.

You argue that it is unfair to force you to enrich your landlord, especially when the appliances he provided were at the end of their lifetime when you moved in. I hope that you have proof of purchase, such as checks , credit card receipts, or bills of sale. If not, get them.

The landlord, on the other hand, may argue that the stove top and oven are “fixtures” — physically attached to the real estate. Thus, under the law, they became part of the real estate and you cannot remove them. He may win on that argument. However, a refrigerator is not usually built in and therefore cannot be considered a fixture.

Another thought: if the stovetop and/or oven are sitting in the basement, you could re-install them. Thus, you would leave these items in the exact condition you found them.

One other risk. Whoever loses a case like this may be inclined to appeal. Thus, you could find yourself arguing the case over again to a panel of arbitrators. In addition, either party could appeal to a judge after that. This will cost court fees, time and perhaps attorneys fees. In a case like this expect the landlord to appeal if you win because of the interesting legal question involved.”

A few minutes later, another lawyer weighed in, stating that the appliances had to be left behind if the old ones could not be re-installed. He said:

“If you kept the old appliances, you can have them put back in and argue that you simply used your own appliances during the lease period and that they were not “fixtures” that you added to the property. 

If, however, you disposed of the old appliances, then you will need to leave the new appliances. 

Speak with a reputable attorney in your area for more specific information. 

Good luck!”

Good luck indeed.


Vocabulary Test

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

No. 1,091

homophoneWhat is a homophone?

You’ll remember it when we tell you.

Hint:  Here and hear.

Yes, that’s right.

But don’t use the word, especially on the internet, or this may happen to you. By the way, the principal of this language school, when informed of the word’s meaning, thought the concept, which is normally taught in the fifth grade, was too advanced for their students.

Reminds me of  the word “niggerdly“. Don’t use that one either.  This word has caused the user big trouble more than once.

As a matter of fact, don’t use any word that people with limited vocabularies could misconstrue.  That includes many homophones.Here is a partial list of homophones to avoid.


keep looking »


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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