Pittsburgh Legal Back Talk

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

1037 Posts and Counting

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.



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.




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.



Real Estate: Right of Rescission under Truth in Lending Act

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


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:


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.


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.

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?


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.


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.

How to Cure Title When a Notice of Sheriff Sale was not Given to a Junior Lienholder.

Posted by Cliff Tuttle| April 12, 2014 | © 2014

No. 1,029

Effective April 7, 2014, an amendment to Rule of Civil Procedure 3135 provides a way to fix a difficult problem.

When notice was omitted to a junior lien holder, the most common means to fix the title defect was to conduct a new sale. Most of the time, however, the junior holder had no interest in purchasing the property.

New Rule 3135 (c) provides:

“(c) If the plaintiff has failed to give notice to a lienholder, junior in lien priority to the mortgage being foreclosed upon or the judgment being executed, the plaintiff, or its assigns, or the purchaser at the sheriff’s sale may file a petition with rule to show cause requesting that:

(1) the lien held by the junior lienholder be divested, or

(2) if the plaintiff, or its assigns, is the purchaser at the sheriff’s sale, another sheriff’s sale be held in which only the junior lienholder specified in the petition may be the only bidder allowed other than the senior lienholder who acquired the property at the sheriff’s sale, or

(3) such relief as may be approved by order of court.”

Problem solved.



I Thought Claudette Colbert Must Be Dead By Now.

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

No. 1,028


From Althouse.com

From Althouse.com

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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