Pittsburgh Legal Back Talk

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

1398 Posts and Counting

Darkness at the Corner of Walk and Don’t Walk: Goodbye KQV!

Posted by Cliff Tuttle| December 31, 2017 | © 2018

No. 1,388

Image: Google

Goodbye to Pioneering Radio Station KQV. It was one of a handful stations like KDKA and WWSW that people listened to on crystal sets in the early 1920’s. After a 97 year run, it goes off the air tonight at midnight.

Although it has been an all-news station since 1975, the Baby Boomer generation remembers it as the place to hear Top Forty songs by the likes of the Everly Brothers and features like the Wax to Watch.

KQV constantly had its finger on the pulse of the teenage market. They broadcast “Live News at 55” so they could capture dial-searchers at the top of the hour. (Later competitors would dispense with news altogether.) And if you didn’t get the Walk and Don’t Walk reference, don”t worry, you just aren’t old enough. In those days, the DJ broadcast all day in the window, looking out on the pedestrian crosswalk on Seventh Avenue.

CLT

Sign of the Times.

Posted by Cliff Tuttle| December 30, 2017 | © 2018

No. 1,387

Image: busblog

POLITICAL JUNKIE ALERT: CONGRESSIONAL REDISTRICTING COMES TO THE PA SUPREME COURT.

Posted by Cliff Tuttle| December 30, 2017 | © 2018

No. 1,387

LEAGUE OF WOMEN VOTERS OF PA, ET AL. v. COMMONWEALTH OF PENNSYLVANIA ET EL., NO. 261 M.D. 2017

Image: dailykos.com

The Pennsylvania Supreme Court directed Judge Kenneth Brobson of the Commonwealth Court to conduct a non-jury trial and to find facts and recommend conclusions of law regarding the claim of the Petitioners, who included various registered voters in the Democratic Party, that the legislative reapportionment of Pennsylvania’s 18 congressional districts was unconstitutional.

Judge Brobson concluded that the Petitioners have established by a preponderance of the evidence that the redistricting plan was motivated by partisan considerations, which enabled the Republicans to consistently win 13 out of 18 congressional seats. However, while characterizing the method of redistricting as unfair, “Petitioners have not articulated a judicially manageable standard by which this Court can discern whether the 2011 Plan crosses the line between permissible partisan considerations and unconstitutional partisan gerrymandering under the Pennsylvania Constitution.”

In addition, the Petitioners did not present evidence that the redistricting plan constituted an act of retaliation against political opponents, one of the criteria for unconstitutional gerrymandering established in prior caselaw.

“A lot can be said about the 2011 Plan,” the opinion states, “much of which is unflattering yet justified. Petitioners, however, have failed to meet their burden of proving that the 2011 Plan, as a piece of legislation, clearly, plainly, and palpably violates the Pennsylvania Constitution. For the judiciary, this should be the end of the inquiry.”

While this conclusion is based upon Judge Brabson’s assessment of the current state of the law, two cases are pending before the United States Supreme Court that could change everything.  In the case of Gill v. Whitford, the Supreme Court has stayed the implementation of the decision of the United States District Court for the Western District of Wisconsin that a plan in that State violates the pending disposition of the appeal to that Court. See 137 S. Ct. 2289 (2017).In Benisek v. Lamone, the Supreme Court will consider a claim from Maryland brought under the FirstAmendment, including a retaliation allegation.

Under these circumstances, the Pennsylvania Supreme Court might well postpone consideration of this case until after the U.S. Supreme Court takes action in 2018.

CLT

Lawyers Spoof Lawyers’ Writing Style. But Do They Stop Doing It?

Posted by Cliff Tuttle| December 29, 2017 | © 2018

No. 1,385

Here’s a Christmas Card that appears on the December 25th post of a blog run by a couple of law professors.

 

Courtesy of Appellate Advocacy Blog

Yes, everybody recognizes this ludicrous lawyerly writing style. Everybody knows how stilted and pretentious it sounds. Everybody knows that it is an attempt to relieve the writer from liability that would never happen or provide certitude that nobody needs. Everybody laughs at it. But is anybody even trying to stop writing that way?

Or maybe we should say, “Is anybody reasonably trying to stop?”

CLT

What One Highly Organized Person Does to Become Like That.

Posted by Cliff Tuttle| December 29, 2017 | © 2018

No. 1,384

Image: Early to Rise

In case you are curious, here’s a few really good ideas from Early to Rise. . . a productivity blog.  Don’t try to to do all of this at once.

CLT

Summary Judgment and the Nanty Glo Rule; the Banker’s Affidavit is still not enough.

Posted by Cliff Tuttle| December 28, 2017 | © 2018

No. 1,383

WELLS FARGO BANK, NA  v. PREMIER HOTELS GROUP, LLC. 2017 PA Super. 405 (2017)

In response to a mortgage foreclosure action, Premier sold its property in Dunmore, Lackawanna County, PA and paid over the proceeds to Wells Fargo, assignee of the mortgage.

However, in a Complaint filed in 2015, Wells Fargo claimed that the proceeds of the sale were insufficient to pay the debt in an Action entitled “Breach of Note.”  Premier stated in its answer that the sum paid was sufficient and the Note should have been cancelled.  It also plead several affirmative defenses under New Matter.  However, Premier’s New Matter was not endorsed with a notice to plead and Wells did not file a response.

Several weeks later, Wells Fargo filed a Motion for Summary Judgment, supported by an affidavit of a Vice President Farr of the bank, (Farr Affidavit) averring that he had examined the numbers in the bank’s records and Premier owed $1,772,957.37 plus per diem interest from the filing of the Complaint of $275.50.

Relying upon the affidavit, the trial court had entered summary judgment in favor of Wells Fargo.  The Superior Court reversed:

“Based on our review of the record, and recognizing that doubts as to the existence of genuine issues of material fact must be resolved against Wells Fargo as the moving party, we find the trial court erred in concluding there were no genuine issues of material fact. We do not take issue with the trial court’s determination that the loan documents are valid and enforceable. However, when we look at the record in a light most favorable to Premier as the non-moving party, it is clear the only support in the record for finding events of default is contained in the Farr Affidavit. While the trial court does not mention the affidavit in its Rule 1925(a) opinion, it appears the trial court accepted the assertions in the affidavit while ignoring Premier’s counter-assertions that its attempted payments were rejected by Wells Fargo and similarly ignoring the terms of the Mortgage that authorized Premier to contest tax liability in good faith. Moreover, the only support for the sums claimed by Wells Fargo appear in the Farr Affidavit. Therefore, we conclude that the trial court’s apparent reliance on the affidavit as the basis for concluding that no genuine issues of material fact exist is, as Premier argues, a violation of the Nanty-Glo rule and requires that we reverse the order granting summary judgment and remand for further proceedings.”

The Nanty-Glo Rule was created by the Supreme Court in the landmark case: Borough of Nanty-Glo v. American Surety Co. of New York, 163 A. 523 (Pa. 1932). It holds:

“Testimonial affidavits of the moving party or his witnesses, not documentary, even if uncontradicted, will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury.”

Goodrich-Amram, 2d, supra, § 1035(b): 4 at pp. 434-35.

CLT

No Living Thing Lives Forever, Not Even the Jackson Magnolia.

Posted by Cliff Tuttle| December 26, 2017 | © 2018

No. 1,382

Image: Washington Examiner

There’s been quite a flutter on Twitter over an article by Newsweek stating that Melania Trump condemned a nearly two hundred year old tree to be removed at the White House. The initial article was rather negative. But as updates began to appear, the story came to assume a different color and texture.

The tree had been planted by Andrew Jackson to commemorate his wife, who died shortly after he was elected in 1828. He blamed his predecessor, John Quincy Adams, for her death over campaign rhetoric which portrayed her as a woman unworthy to be the First Lady.

As the story unfolded, bloggers like Ann Althouse rose to Mrs. Trump’s defense.  The National Arboretum had done an extensive study and concluded that the longevity of the tree could not be safely extended. The heartwood of the trunk had been killed by the introduction of cement into the trunk and was being held up by wire. Among other things, the helicopter landing on the White House lawn was likely to blow it apart. possibly causing injury to visitors. While the tree will be removed, the wood will be saved and offshoots growing nearby will be transplanted to replace their great predecessor. . In the end, Mrs. Trump seems to have been vindicated.

Although some live long, no living thing lives forever. This truth is known by all, but this humans we are always striving for a little more time. From reports, the Jackson Magnolia had seen its best days and is bow on life support.  It is hard to accept such a reality, but in the end there is really no choice.

CLT

Yes, Virginia, there is a Christmas Pickle, no matter what your little friends may say.

Posted by Cliff Tuttle| December 24, 2017 | © 2018

No. 1,381

Image: Heinz History Center

Its supposed to be an old German tradition, although it has been said that no one from Germany admits knowing about it.

A pickle hung on the Christmas tree is supposed to bring good luck and an extra present to the child who finds it.  There are various stories about it.  In one, St. Nicholas rescued two boys from captivity in a pickle barrel.  In another, a Civil War prisoner in Andersonville was brought back from death’s door by eating a pickle and thereafter hung one on the tree.

But we in Pittsburgh have our own pickle tradition.  You may still be able to buy a pickle ornament for your tree at the Heinz History Center (or from its on-line store) for a modest $17.00.

CLT

ZONING: Can a zoned single family residence be rented for short-term occupancy?

Posted by Cliff Tuttle| December 23, 2017 | © 2018

No. 1,380

Image: blogairdna.co

SLICE OF LIFE, LLC v. HAMILTON TOWNSHIP ZHB, 164 A.3d 633 (2017)

The Township Zoning Officer issued an enforcement notice charging Slice of Life, LLC with violation of an ordinance creating a single family residential district where the property [Property] was located by “[u]se of [the Property] as Hotel and/or other types of transient lodging, Rental of Single Family Residential Dwelling for transient tenancies.”

The Zoning Hearing Board upheld the citation and the trial court affirmed, stating that the Board had not abused its description in holding that the use of the Property.

Upon review, the Commonwealth Court reversed.

Appellants point out that the ordinance does not define the terms “transient lodging” or “transient tenancies.” The single family house in question did not meet the definition of a hotel, which involved multiple units, not a single-family dwelling, as here. However the Court stated that it is not permissible to pursue the perceived spirit of a law while ignoring the letter.  A review of case law supports the conclusion that a short-term lease of a single family residence is permissible under this ordinance, since it did not contain any specific provision addressing the length of the tenancy.

CLT

Qualified Tenant Cannot Be Rejected under Seattle City Ordinance.

Posted by Cliff Tuttle| December 23, 2017 | © 2018

No. 1,379

Image: epicodus.com

The City of Seattle has adopted an ordinance requiring a landlord to accept the first qualified applicant.  The idea is to screen out all housing discrimination, including unconscious bias.  Of course, we can all think of reasons for rejecting a prospective tenant that are hard to quantify, like a bad attitude. No matter about all that in Seattle.  Here’s what the lawyers attacking the ordinance posted on Twitter.

CLT

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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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