Posted by Cliff Tuttle| June 23, 2016 | © 2016
Summary: Failure of Landlord to provide a working fire detector may support either a contract claim under doctrine of warranty of habitability or a tort claim though negligence.
A fire at a two-unit residential property claim the lives of three individuals.
In reviewing the order below granting summary judge on both tort and contract claims, the Superior Court stated: “In Pennsylvania, it is well settled that landlords owe a duty to protect tenants from injury or loss arising out of a negligent failure to maintain a rental property in a safe condition. Feld v. Merriam, 485 A.2d 742, 745 (Pa. 1984). A tenant seeking to recover damages stemming from the condition of a rental party may pursue claims sounding in ordinary negligence or a breach of the implied warranty of habitability “
“Appellants argue in their first issue that the trial court erred in sustaining preliminary objections to their common law claim alleging that defendants negligently failed to install smoke detectors at the property. Specifically, Appellants contend that the trial court erroneously held that a Pennsylvania landlord’s duty to protect tenants from dangerous conditions did not extend to the installation of smoke detectors. We agree.”
“In Pennsylvania, it is well settled that landlords owe a duty to protect tenants from injury or loss arising out of a negligent failure to maintain a rental property in a safe condition. Feld v. Merriam, 485 A.2d 742, 745 (Pa. 1984). A tenant seeking to recover damages stemming from the condition of a rental party may pursue claims sounding in ordinary negligence or a breach of the implied warranty of habitability. We discuss both of these theories below.”
The implied warranty of habitability, the Court stated, is reflected in the Restatement of Property (Second) § 17.6 comment a., b., ac (1977), which represents the modern weight of authority.
“Landlord Under Legal Duty to Repair Dangerous Condition
A landlord is subject to liability for physical harm caused to the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of
(1) an implied warranty of habitability;
(2) a duty created by statute or administrative regulation”
A warranty of habitability claim is a contract claim, for which contract damages and not tort damages are available. This includes termination of the obligation to pay rent and contract termination when the premises are surrendered, plus the remedies of repair and deduct and specific performance. However, the Court went on to say that the complaint may have alleged sufficient facts to hold the defendants liable for tort damages arising from the failure to correct a dangerous condition.
Posted by Cliff Tuttle| June 22, 2016 | © 2016
I will be participating in a Pennsylvania Bar Institute seminar at the PBI education facility in Pittsburgh on Landlord Tenant Law next Wednesday, June 29. The seminar topics go beyond the basics, including such areas a utility shut off, fair housing and human relations and eviction procedures.
I will also participate in a Landlord Tenant seminar on August 11 at the Sheraton on Fort Couch Road in Bethel Park, sponsored by Sterling Educational Services.
I have been invited to make a presentation on Real Estate Consumer Protection Statutes at the PBI 2-day real estate program in Philadelphia on December 8 and 9. More about this later.
I have also agreed to develop a new program for CCAC for the real estate broker and agent education project some time next year. CCAC intends to offer seminars on location at real estate offices during the next accreditation period.
I have also been invited to make a short speech at a program at Phipps Conservatory this Sunday, June 26, commemorating the life and work of Wendy King, long-time KDKA radio host of the pioneering talk show “Party Line”.
Posted by Cliff Tuttle| June 20, 2016 | © 2016
Summary: When your client cannot travel, you may have to consider calling the other party as a witness to prove your case.
If your client lives half-way across the country and cannot come to trial, you may be forced to consider obtaining the testimony you need from the other party.
In such a situation, you must have very limited objectives. And there is always risk. Even identifying the opposing party’s own signature on a lease or contract may be risky. If he says that he doesn’t recognize the signature, the case may be over.
On the other hand, it may be possible to examine such a cagey witness “as of cross” by use of email exchanged between the parties. Your client asks for payment and the adverse party makes a promise. The more detailed the discussion, the more difficult it is for the witness to disavow with credibility.
Have reasonable objectives and don’t try to hit a home run.
Posted by Cliff Tuttle| June 8, 2016 | © 2016
If your cell phone rings in the courtroom in the Allegheny County Common Pleas Criminal Division, expect it to be confiscated and expect to pay the Clerk of Courts $175.00 (according to one tipstaff) to get it back. An older sign stated that the penalty was $50.00. Apparently that didn’t work. Nevertheless, at $175.00, the fine probably exceeds the cost of some phones.
The Rule applies to all electronics, so that means that you should turn off the sound in your iPad in your brief case and put your Apple Watch on airplane mode. This could be really, really expensive. When the ringer sound in the iPhone, iPad and watch are all turned on, a single call could set them all ringing away — resulting in a triple confiscation.
There is only one small section of the hall on the fifth floor where cell phones are allowed. I assume the same situation applies on the other floors. The remainder of the hallways are posted with signs prohibiting cell phone use, except in the specified area. But I couldn’t help noticing that at least half of the people waiting in full view of three such signs were either talking, texting or browsing on their cell phones. I wish I could have taken a few pictures, but, of course, cell phone usage is prohibited.
Even inside the courtroom I saw several defendants-in-waiting using the phone. Of course, the court was not in session yet — but still. This is not very smart.
Posted by Cliff Tuttle| June 6, 2016 | © 2016
Carbon Monoxide Alarm Standards Act
35 P.S. § 7221 – 7227 (Current through 12/18/2013) (When referring to section numbers, use the last digit of each section. For example, 25 P.S. §7222 might be referred to as Section 2 of the Act)
TABLE OF CONTENTS
Carbon monoxide alarm requirements
Carbon monoxide alarm requirements in rental properties Enforcement
This act shall be known and may be cited as the Carbon Monoxide Alarm Standards Act.
§ 7222. Definitions
The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise:
“APARTMENT.” A room or suite of two or more rooms, occupied or leased for occupation, or intended or designed to be occupied, as a domicile.
“APPROVED CARBON MONOXIDE ALARM.” The term includes:
(1) A single or multiple station carbon monoxide alarm listed as complying with the Approved American National Standard for Single and Multiple Station Carbon Monoxide Alarms (ANSI/UL2034) or a carbon monoxide detector listed as complying with the Approved American National Standard for Gas and Vapor Detectors and Sensors (AN- SI/UL2075) installed in accordance with this act.
(2) A device that may be combined with a smoke alarm or smoke detector if the combined smoke alarm or detector meets all of the following:
(i) Complies with either of the following:
(A) The Approved American National Standard for Single and Multiple Station Carbon Monoxide Alarms (AN- SI/UL2034) for carbon monoxide alarms and the Approved American National Standard for Single and Multiple Station Smoke Alarms (ANSI/UL217) for smoke alarms.
(B) The Approved American National Standard for Gas and Vapor Detectors and Sensors (ANSI/UL2075) for carbon monoxide detectors and the Approved American National Standard for Safety for Smoke Detectors for Fire Alarm Systems (ANSI/UL268) for smoke detectors.
(ii) Emits an alarm in a manner that clearly differentiates between detecting the presence of carbon monoxide and the presence of smoke.
(3) A carbon monoxide detection system that includes carbon monoxide detectors and audible notification appliances that are installed and maintained in accordance with the National Fire Alarm and Signaling Code (NFPA 72) and the Standard for the Installation of Carbon Monoxide (CO) Detection and Warning Equipment (NFPA 720) and are in compliance with the Approved American National Standard for Gas and Vapor Detectors and Sensors (ANSI/UL2075).
“FOSSIL FUEL.” Coal, kerosene, oil, wood, fuel gases and other petroleum or hydrocarbon products which emit carbon monoxide as a by-product of combustion.
“INSTALLED.” A carbon monoxide alarm that is hardwired into the electrical wiring, directly plugged into an elec- trical outlet without a switch, other than a circuit breaker, or, if the alarm is battery powered, attached to the wall or ceiling of a residential building, an apartment or a multifamily dwelling, in accordance with the standard for the instal- lation of carbon monoxide (CO) detection and warning equipment (NFPA 720).
“MULTIFAMILY DWELLING.” Any house or building, or portion thereof, that is intended or designed to be occu- pied or leased for occupation, or occupied as a home or residence for three or more households living in separate apart- ments, and doing their cooking on the premises.
“OPERATIONAL.” Working and in service.
“RESIDENTIAL BUILDING.” Detached one-family and two-family dwellings and multiple single-family dwellings which are not more than three stories in height with a separate means of egress, which includes accessory structures.
§ 7223. Administration
Nothing in this act is intended to modify the authority and responsibilities of the Department of Labor and Industry under the act of November 10, 1999 (P.L. 491, No. 45), known as the Pennsylvania Construction Code Act.
§ 7224. Carbon monoxide alarm requirements
(a) RESIDENTIAL BUILDING.– Upon the sale of a residential building, the seller shall disclose information re- garding the installation of carbon monoxide detectors on the property disclosure statement required by 68 Pa.C.S. Ch. 73 (relating to seller disclosures).
(b) MULTIFAMILY DWELLINGS.– Each apartment in a multifamily dwelling, which uses a fossil fuel-burning heater or appliance, fireplace, or an attached garage, must have an operational, centrally located and approved carbon monoxide alarm installed in the vicinity of the bedrooms and the fossil fuel-burning heater or fireplace within 18 months of the effective date of this act.
§ 7225. Carbon monoxide alarm requirements in rental properties
(a) OWNER RESPONSIBILITIES.– The owner of a multifamily dwelling having a fossil fuel-burning heater or appliance, fireplace or an attached garage used for rental purposes and required to be equipped with one or more ap- proved carbon monoxide alarms shall:
(1) Provide and install an operational, centrally located and approved carbon monoxide alarm in the vicinity of the bedrooms and the fossil fuel-burning heater or fireplace.
(2) Replace, in accordance with this act, any approved carbon monoxide alarm that has been stolen, removed, found missing or rendered inoperable during a prior occupancy of the rental property and which has not been replaced by the prior occupant before the commencement of a new occupancy of the rental property.
(3) Ensure that the batteries in each approved carbon monoxide alarm are in operating condition at the time the new occupant takes residence in the rental property.
(b) MAINTENANCE, REPAIR OR REPLACEMENT.– Except as provided in subsection (a), the owner of a multi- family dwelling used for rental purposes is not responsible for the maintenance, repair or replacement of an approved carbon monoxide alarm or the care and replacement of batteries while the building is occupied. Responsibility for maintenance and repair of carbon monoxide alarms shall revert to the owner of the building upon vacancy of the rental property.
(c) OCCUPANT RESPONSIBILITIES.– The occupant of each multifamily dwelling used for rental purposes in which an operational and approved carbon monoxide alarm has been provided must:
(1) Keep and maintain the device in good repair.
(2) Test the device.
(3) Replace batteries as needed.
(4) Replace any device that is stolen, removed, missing or rendered inoperable during the occupancy of the building.
(5) Notify the owner or the authorized agent of the owner in writing of any deficiencies pertaining to the approved carbon monoxide alarm.
§ 7226. Enforcement
Willful failure to install or maintain in operating condition any approved carbon monoxide alarm required by this act is a summary offense punishable by a fine of up to $ 50.
§ 7227. Municipal requirements
Nothing in this act shall be construed to prevent a municipality from adopting, by resolution, equal or more stringent requirements relating to carbon monoxide alarms.
Posted by Cliff Tuttle| May 5, 2016 | © 2016
Summary: The Courts will soon be required to determine whether the state can require an individual to use public bathrooms that correspond to his/her biological sex when he/she states that this violates a right to choose the restroom that corresponds to the individual’s perceived sexual preference.
When the State of North Carolina adopted House Bill 2 (HB2) recently, it set the stage for a confrontation in the courts. It is only a matter of time before challenges are filed, probably in the Federal Courts.
Administrators at the University of North Carolina are weighing how to cope with problems it faces as an academic institution. These problems include protests by students and faculty and threats of boycott by academic institutions and organizations around the country and the world.
Chancellor Carolyn Holt points out that the statute has no provision for enforcement and she bluntly predicts that there won’t be any. Perhaps not by the University, but it won’t be long before someone will test the law. There are plenty of criminal statutes that could be applied, such as disorderly conduct, public lewdness, defiant trespass, to suggest a few.
However, there is a larger practical problem. Schools, employers and other providers of public bathrooms must decide what to do when requests are made by members of the public they serve. One solution announced by UNC is the construction of many more single unit bathrooms. At other institutions, formerly sex-segregated bathrooms have been converted to multiple unit unisex bathrooms, albeit with locks on the door. This solution, which is intended to cater to needs of both sides, creates another problem — shortage.
There is an intermediate solution, too. At one institution I visited recently, there were both sex-segregated and unisex bathrooms at different locations in the building.
Posted by Cliff Tuttle| April 25, 2016 | © 2016
Posted by Cliff Tuttle| April 14, 2016 | © 2016
Click the link below to read the full opinion
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
Posted by Cliff Tuttle| April 10, 2016 | © 2016
Summary: Although the Home Improvement Consumer Protection Act (HICPA) requires a home improvement contractor to utilize a written contract that complies with the requirements of the Act, the Superior Court has held that the non-compliant contractor can still collects fees on a quantum merit cause of action.
Under HICPA, any home improvement contract for more than $500.00 must be in writing and comply with the requirements set forth in the Act.These include, inter alia, a description of the work and materials, as well as specifications that cannot be changed except by written change order. A starting date and completion date should be stated.
There must be an initial estimate of the dollar value of the services to be provided in a time and materials contract, which may not be increased more than 10% without a written change order. There are a number of other requirements.
However, the Superior Court has held in a series of cases (links above) that a contractor who doesn’t prepare a written contract can nevertheless collect the fair value of the work performed under the doctrine of quantum meruit.
This is true even if there is a written contract but it doesn’t comply with the statute.
It might seem that the effect of such a ruling would be to make the statute a nullity. Not exactly. The statute contains criminal provisions, including insurance requirements. Moreover, it is usually more difficult to prove the fair value of goods and services than to sue under a contract where the price and terms are stated. The homeowner can call an expert witness who testifies that the fair value of the work is less than the contractor believes and even the less than the cost. And, of course, the defense that the work was unsatisfactory is always available. It is far better and easier to have a compliant contract.
Posted by Cliff Tuttle| April 1, 2016 | © 2016
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