What One Highly Organized Person Does to Become Like That.

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.

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

Category: Business, Civil Litigation
Tags: Nanty-Glo Rule > Summary Judgment

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

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

Category: History
Tags: Andrew Jackson > Jackson Magnolia

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

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

Category: Christmas!, Pittsburgh
Tags: Christmas pickle > Heinz pickle

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

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

Category: Landlord and Tenant law and litigation
Tags: hotels > short-term lease > single family residence

Qualified Tenant Cannot Be Rejected under Seattle City Ordinance.

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

Category: Civil Rights, Landlord and Tenant law and litigation
Tags: Fair Housing > housing discrimination > qualified tenant > Seattle

Lawyers Should Make Nice To Sheriff’s Deputies Even When They Don’t Deserve It.

No. 1,378

Image: stltoday.com

Going through those magnetic security portals at the Court House can be a gigantic pain, especially when you are late for court. But experience has proven that we should hold our temper at all costs.

Clifford Haines, 72 year-old former President of the Pennsylvania Bar Association and the Philadelphia Bar Association was roughed up by some deputies at the security checkpoint at the Philadelphia Justice Center. Now he’s suing. So much better to never have it happen in the first place. Here’s an article that appeared recently in the ABA Journal.

CLT

Category: Civility and Courtesy in the Practice of Law.

In case you missed this on ABC News

No. 1,377

Image: ABC News

Category: Christmas!

If You Think You Can’t Trademark a Vulgar Word . . .

No. 1,376

Image: cbldf.org

You’re wrong. Here’s a Bloomberg post on the subject.

CLT

Category: Constitutional Law
Tags: Trademark

Doug Jones Wins in Alabama; Republicans May Be the Big Winners.

No. 1,375

Image: dailymail.co.uk

The party leaders will never admit it. With the #MeToo Revolution in full swing and time running out on the Trump legislative agenda, the Republicans do not need a floor fight over seating Roy Moore. Most of them fear (with good reason) going on the record.

The expression “dodging a bullet” is a gross understatement. Try dodging an asteroid.

Meanwhile, in the unintended consequences department, look for a sharp decline in female staff hires and historic number of female candidates, including Presidential contenders.

CLT

POSTSCRIPT: Mr. Moore didn’t get the memo, though. He wants a recount.

Category: 2017
Tags: Alabama Senate Race

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 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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