WQED FM and The Music of Christmas

No. 1,364

I heard Christmas music on WQED FM (89.3) this morning and it was wonderful! Of course, there are a few stations that have been playing Christmas oldies from pop charts ranging back to the Depression. If that does it for you, keep listening.

To my ear, pop groups rarely capture the aroma of the season. Give me choirs. Give me brass choirs. Give me all the symphony orchestras in the world. Give me lots of Johann Sebastian Bach.

Please don’t try to sanitize Christmas. After all, Christmas Christmas carols are by definition religious. I cannot take seriously the protest that great music inspired by the Nativity story is somehow offensive due to its message. I am respectful and tolerant of other people’s beliefs and other people’s culture. I even listen to music of every kind — although not in equal measures.

You don’t have to believe in angels to enjoy Mendelsohn’s joyous composition on the subject. When Christmas bells ring, just listen!

CLT

Category: Christmas!
Tags: WQED FM 89.3

A dialogue: Does a Broken Toilet Seat Not Replaced by Landlord in a Month Create an Uninhabitable Condition?

No. 1,362

Here’s a question that appeared the other day in the AVVO forum where landlords and tenants pose questions to lawyers. Attorney Leslie Margolis and I answered the question at about the same time and we then traded comments. Unfortunately, I don’t have my comments available to reprint, but hers are better anyway. Consider this an endorsement of her answer. First the question:

Broken toilet seat?

It’s been 2 months. I have written letters and made phone calls to Allegheny county housing but nothing has been done. I have a copy of the letter. I’m going to buy a new seat and deduct it from the rent. They are going to be nasty and take me to the magistrate over this screaming for “late fees” etc. My question is this: do they have a pot to piss in?

Here is Leslie’s initial reply:

Leslie A. Margolies

24 reviews

Landlord / Tenant Lawyer | Wyncote, PA

“You cannot simply pay for things you need and deduct them from rent without following certain steps..and those steps are only applicable when the condition renders the premises uninhabitable….i suggest you consult with a local landlord tenant attorney and bring a copy of your lease.”

Leslie A. Margolies, Esq. is an attorney and Director of The Real Estate Law Group which provides affordable legal representation (sliding scale) for people with property problems in all counties of Pennsylvania. Her services include real estate and landlord tenant litigation, real estate transactions and document preparation. Please note that responses to questions on this website are for general purposes only. Such responses may not be considered legal advice and do not establish an attorney-client relationship.

Now, mine:

Clifford L. Tuttle Jr.

9 reviews

Landlord / Tenant Lawyer | Pittsburgh, PA

“Yes, you have the right to replace the toilet seat and deduct it. The case that says so is Pugh v Holmes.

Clean up your language in front of the Magistrate, though.”

Whereupon, she said:

“I disagree that is as simple as you suggest. I believe it is a mistake to oversimplify the issue particularly when the tenant is likely to advocate for themselves and not bring adequate evidence. You don’t know if he has even retained proof of the letters and you do not know if the judge will find the absence of a toilet seat to be a condition which renders the premises uninhabitable. That case only states that the tenant may deduct for repairs from rent when the condition constitutes a breach of the implied warranty of habitability. In order to constitute a breach of the implied warranty of habitability the defect must be of a nature and kind which will render the premises unsafe, or unsanitary and thus unfit for living therein. And the repairs which were necessary in that case clearly involved safety. “

LM: “Moreover, if he does deduct the toilet seat but it turns out he has only a week to week or month to month lease, then the landlord can terminate the lease just because he is annoyed about the toilet seat and the tenant will be blindsided by this unanticipated consequence.“

LM: “I think it could easily be argued by a good defense attorney that a toilet seat offers nothing more than comfort and that a toilet rim can be cleaned so that is no more unhealthy than a toilet seat. If he were my client I would threaten the landlord with legal action which would cost him more than a toilet seat and hope that he (or she) wises up. But I don’t think a letter from the tenant will have the same effect as a letter from a lawyer. And hiring a lawyer to write such a letter would cost more than a toilet seat. But if he documents his complaints properly he could try deducting it from rent and hope for the best. But I would not suggest doing so if he had a month to month or week to week lease (or even worse a verbal lease)“

Category: Landlord and Tenant law and litigation

When Should a Court Award Treble Damages Under UTPCPL?

No. 1,362

E.S. MANAGEMENT v. GAO et al., 2017 PA Super 362 (November 15, 2017

Image: kasmirscan.com

A group of students, all citizens of China, were searching for housing for the 2014-2015 school year at Carnegie Mellon University. While still overseas, they asked a friend to look at an apartment being advertised by E. S. Management. E. S. Management emailed the students and told them that they would have to put down a security deposit of $5,785.00 plus a $100.00 application fee to hold the property. A lease was produced, the students were told to sign and return it in two days and one students did sign and return it to E. S. Management. The other three never filled out can application and didn’t sign the lease. A few days after wiring the money, the students decided they did not want the apartment. Although E.S. Management had never stated what would happen if the students did not rent the apartment, it refused to refund the money.

The students and the aunt of one for them, who had actually provided the security deposit money, sued E.S.for the security deposit and other damages. E.S., in turn, sued the students for the rent for an entire year, alleging breach of contract. The two cases started in the Magistrate, were appealed to Common Pleas where they were consolidated and heard by arbitrators, then appealed to a judge, with a jury trial.

The case was tried before a jury who adjudicated claims by both sides under the Landlord and Tenant Act (LTA) and by the students and Aunt under the Unfair Trade Practices Consumer Protection Law (UTPCPL) and various legal theories. The Superior Court summarized the results of the trial as follows:

“The cases proceeded to a consolidated jury trial on the breach of contract claims. At the conclusion of trial, the jury found that no contract existed between the parties and that E.S. Management failed to establish one of the elements of promissory estoppel. The jury, however, did not award damages to either party. Aunt and the Students then requested that they be permitted to poll the jury. The trial court granted their request. Upon being polled, the jurors unanimously indicated that they intended to award and refund Aunt and the Students the security deposit of $5,785.00. The trial court noted that, because Aunt and the Students failed to plead a count for unjust enrichment, the jury was without power to issue an award of quantum meruit.

Immediately after the trial court dismissed the jury, it conducted a bench trial on Aunt and the Students’ remaining claims implicating the UTPCPL and the LTA. Following the bench trial, the trial court concluded that E.S. Management violated the UTPCPL and that Aunt and the Students were entitled to treble damages. Specifically, the trial court found:

[1.] E.S. Management violated the [LTA] provision at 68 P.S. § 250.511a by requiring “a sum in excess of two months’ rent to be deposited in escrow for the payment of damages to the leasehold premises and/or default in rent thereof . . .,” which also is a violation of the provision of the UTPCPL at 73 P.S. § 201-2(4)(xxi);

[2.] E.S. Management’s failure to inform the Students and [Aunt], either verbally or by writing, when it requested the $5,775.00 deposit, that this sum could be forfeited if the Students chose not to rent the [A]partment is a violation of the provision of the UTPCPL at 73 P.S. § 201-2(4)(xxi);

[3.] E.S. Management’s requirement that the Students sign its lengthy lease within only 2 days from the time they received the lease is a violation of the provision of the UTPCPL at 73 P.S. § 201-2(4)(xxi);

[4.] E.S. Management’s false claim that the Students and [Aunt] were responsible for rent for the entire term of the lease and utilities, even though two days after depositing the $5,755.00 they informed E.S. Management they would not be renting the [A]partment, is a violation of the provision of the UTPCPL at 73 P.S. § 201-2(4)(xxi); [and]

[5.] Pursuant to UTPCPL provision at 73 P.S. § 201-9.2, [the trial court] award[s Aunt] and the Students their court costs, including those incurred with the Magisterial District Judge[.]”

In Post trial motions, E. S. Management argued that the LTA and UTPCPL does not govern because the jury had found that there was no lease between the company and the students and their aunt. “In other words, E.S. Management did not have a landlord-tenant relationship with Appellees. E.S. Management also argued that the trial court erred in concluding that the UTPCPL requires more than a two-day review period for residential leases. E.S. Management next argued that the trial court abused its discretion in concluding that E.S. Management violated the UTPCPL when it claimed that Aunt was responsible for rent for the entire term of the lease and utilities. E.S. Management finally argued that the award of treble damages was excessive.”

“In response, Aunt and the Students argued that E.S. Management had waived its claim that the UTPCPL is inapplicable to the dispute at hand because it raised the claim for first time in its post-trial motion. They further argued that the LTA applied through the UTPCPL. Aunt and the Students also argued that E.S. Management’s decision to grant them only two days to review the lease was deceptive conduct under the UTPCPL. In addition, they argued that E.S. Management’s claim that Aunt was liable for rent and utilities was a false and deceptive claim under the UTPCPL. Lastly, Aunt and the Students argued that the award of treble damages was appropriate under the circumstances.”

The trial court denied E.S Management’s post trial motions and the case was appealed to the Superior Court. The Superior Court stated:

“On appeal, E.S. Management raises five issues for our review:

I. Whether the trial court erred in awarding damages under the [UTPCPL], where the jury determined that there was no contract between the parties, as the UTPCPL requires that there must be a ‘purchase or lease’ of goods or services in order to allow a private party claim?

II. Whether the trial court erred in finding that E.S. Management violated the [LTA] and that that violated the UTPCPL?

III. Whether the [trial] court erred in finding the UTPCPL requires more than a two-day review period for a tenant’s review of a residential lease?

IV. Whether the [trial] court erred in finding that E.S. Management made a “false claim” in litigation and that that violated the UTPCPL?

V. Whether the [trial] court erred in its use of discretion in trebling the damages under the UTPCPL?”

The Superior Court agreed with the Appellees that the first issue raised by Appellants need not be addressed because it was raised for the first time in post trial motions. They had never objected to the application of the UTPCPL during the trial, but only for the first time in post trial motions.

The next issue was whether the trial court erred in holding that collection of $5,585 constituted a violation of Section 250.511a(a) of the LTA, which prohibited collecting more than two months rent as a security deposit.

E. S. Management argued that the amount paid included both security deposit and prepaid rent for the last month. The trial court did not accept that explanation and neither did the Superior Court. “It is disingenuous for E.S. Management to assert that rent paid twelve months before it is due is not for “default in rent.” In other words, collecting the last month’s rent, addition to a security deposit for damages, also constitutes security deposit.

This leads to the issue whether collecting an amount in excess of two month’s rent as a security deposit violates Section 201-2(4) (xxi) of the UTPCPL, often referred to as the “catch-all.” It defines “unfair or deceptive acts or practices” under the statute to include “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi).

The Superior Court agreed with the trial court that the act of requiring payment of a security deposit in excess of two months rent violated the catchall provision of the UTPCPL. However, the trial court did not hold that a violation of the LTA was automatically a UTPCPL violation. “Instead, [the trial court] found E.S. Management’s conduct in collecting the security deposit was deceptive, which created a likelihood of confusion or misunderstanding in violation of the UTPCPL.”

It quoted the trial court opinion:

“There are two examples of this conduct. First, the lease that E.S. Management emailed to the Students set forth a much smaller security deposit of $1,995.00. Second, an E.S. Management representative disclosed at trial that it required the $3,990.00 “double security deposit” portion from the Students because they were international students without social security numbers and other information available from students who are U.S. citizens. This E.S. Management conduct was deceptive and would confuse someone with good understanding of the English language (the Students struggled to understand and speak English). Therefore, [the trial court] was correct in finding that the $5,785 security deposit required by E.S. Management violated the UTPCPL.”

It also upheld the trial court determination that permitting only two days to sign and return the lease was a deceptive practice. The trial court noted that the provisions regarding proration of utilities within the building were confusing and that the students struggled with the English language. The lease itself stated:

“TENANT(S) AGREES LANDLORD GAVE TENANT(S) TIME TO REVIEW THIS LEASE. IF THE LEASE TERMS ARE NOT UNDERSTOOD, TENANTS ARE ENCOURAGED TO SEEK THE ADVICE OF ANY ATTORNEY BEFORE SIGNING. BY SIGNING THIS LEASE, EACH TENANT AGREES HE OR SHE HAS READ AND UNDERSTANDS ALL OF THE TERMS AND CONDITIONS OF THIS LEASE WITH ANY ADDED CLAUSES, OR HOUSE RULES. . . .”

“Thus,” the Superior Court stated,”because E.S. Management provided the Students who were residing in China only two days to review a lengthy and complicated lease with the advice of legal counsel, we are constrained to agree with the trial court’s conclusion that such conduct violated Section 201-2(4)(xxi) of the UTPCPL.”

The Superior Court did, however, reverse the UTPCPL award to the Aunt, holding that she was an agent of the students, not a contracting party. “Because Aunt was not a person who purchased or leased any goods or services from E.S. Management, E.S. Management’s claim against her for rent and utility payment, no matter how deceptive and misleading, does not fall within the ambit of the UTPCPL. Accordingly, we reverse the trial court’s conclusion to the contrary.”

As to whether the trial court abused its discretion by awarding treble damages under UTPCPL, the Superior Court upheld the award. As the Supreme Court stated in Schwartz v. Rockey, 932 A.2d 885 (2008), “courts of original jurisdiction should focus on the presence of intentional or reckless, wrongful conduct, as to which an award of treble damages would be consistent with, and in furtherance of, the remedial purposes of the UTPCPL.”

The trial court opinion justified the award by stating:

“While egregious conduct is not required for an award under the UTPCPL of “three times the actual damages sustained”, [the trial court] did find that E.S. Management’s conduct was egregious. E.S. Management knew that other renters were unlikely as the student rental season “window” had closed. Yet, E.S. Management rushed the Students into submitting the security deposit by telling them it would prevent other prospective tenants from renting the Apartment. But, it never told the Students until after it got the funds that the funds could be forfeited if the Students did not lease the Apartment. Only two days passed between E.S. Management’s receipt of the funds and the Students notifying E.S. Management they would not be renting the Apartment. Thus, E.S. Management attempted to extract $5,785 from the Students because the Apartment was removed from the rental market for two days. There was absolutely no credible evidence that E.S. Management lost the opportunity to rent to others during those two days. E.S. Management provided almost no services in return for the $5,785 and the Students of course, received absolutely nothing in return for it. To [the trial court], this was egregious conduct. In any event, the behavior of E.S. Management in violating the two months’ rent security deposit law, not providing advance disclosure the security deposit would be forfeited, [and] providing only two days for review of the lease . . . constitutes “intentional or reckless, wrongful conduct” that makes [the trial court’s] treble damages award appropriate. Therefore, [the trial court’s] award of treble damages was correct.”

The foregoing decision suggests that the collection of more than two months’ security deposit, in itself, constitutes a UTPCPL violation. Moreover, the common practice of collecting the last month’s rent is, according to this decision, a disguised security deposit. But the totality of the facts must be taken into account in order to determine whether there has been sufficient deception to invoke UTPCPL and its exemplary damages and attorneys fees.

CLT

NOTE: The author represented the aunt and students during the initial proceeding in this case.

Category: Landlord and Tenant law and litigation, UTPCPL
Tags: E. S. Management > excess security deposit > fraudulent or deceptive conduct > post trial motions > prepaid rent > two months' security deposit > Unfair Trade Practices Consumer Protection Law

Here’s a Tune that is sticky as Velcro (er, I mean . . . I don’t know what to call it!)

No. 1,361

CLICK HERE

Provided courtesy of Pa Supreme Court Disciplinary Newsletter
This is a great song sung by the Velcro Legal Department.

Category: Pittsburgh Legal Back Talk

On the Witness Stand: Tell Me Your Story.

No. 1,360

Image: Chicago’s Real Law Blog

As the day comes closer, many people become apprehensive about giving testimony in court. One way to relieve the tension is for the witness to rehearse the testimony with counsel. This enables the witness to obtain a good idea of what he/she is expected to say. Extraneous information can be culled away.

Don’t worry about forgetting. Most of the time you are telling a story. A story has a beginning, middle and end. You start at the beginning and then move along to each next thing. One link leads to the next. Don’t get ahead of the questioner. Don’t overthink the answer. With a moderate amount of practice you and your lawyer get into synch. Soon, everything should fall into place. You both get into the flow and hopefully you can ride the wave to the end.

Are you concerned about being cross-examined? You can rehearse that too. Of course, your lawyer will not anticipate every question. But practice will give you self-confidence and help you answer directly and credibly.

CLT

Category: Civil Litigation

Its Christmas Season

No. 1,359

Category: Pittsburgh Legal Back Talk

Signs of the Times: Bathroom Iconography

No. 1,358

Perhaps you remember when the North Carolina legislature passed a bill restricting bathroom use to biological members of that sex. Well, that’s history. Here’s a bathroom sign at Campus Y at the University of North Carolina at Chapel Hill.

Image: Daily Tar Heel

Category: Pittsburgh Legal Back Talk

Be Sure to Bequeath All Your Passwords to Your Heirs, Executors, Administrators, Successors and Assigns

No. 1,357

AJEMIAN v. YAHOO!, INC., SJC – 122337, Supreme Judicial Court of Massachusetts, October 16, 2017

John Ajemian died in a bicycle accident. He had an email account with Yahoo! when he died, containing four years of stored emails. The administrators of his estate, his brother and sister, would really like to read those emails. They might contain information helpful in estate administration, like bills and electronic receipts and who knows what? And besides — this account was the property of their deceased brother and so, under the law of intestate succession, now it belongs to them!

But Yahoo won’t give access to them. Something about needing to use the password. And of course, brother John took that information with him to the grave.

And so, Robert and Marianne Ajemian did what any two red blooded Americans would do. They sued. The trial court granted summary judgment to Yahoo! on the grounds that a federal statute, the Stored Communications Act, 18 USC § 2701 et seq, prohibits it. The Supreme Judicial Court of Massachusetts accepted jurisdiction on its own motion.

The Supreme Judicial Court made short work of that defense. “We conclude that the SCA does not prohibit such disclosure. Rather, it permits Yahoo to divulge the contents of the e-mail account where, as here, the personal representatives lawfully consent to disclosure on the decedent’s behalf. Accordingly, summary judgment for Yahoo on this basis should not have been allowed.”

Yahoo refused to divulge the contents because, it argued, it had no right to release the information under the service agreement, at least, not without the password. Concluding that there were unresolved material facts involved in that determination, the case was remanded.

One interesting determination of the decision is that the SJD concluded that the administrator could not claim the right of access as the decedent’s agent. An agent, it noted, is under the control of the principal. Being dead, the decedent can not exercise control.

This decision doesn’t yield much, if any, precedent in Massachusetts and none in Pennsylvania. However, it signals issues that will become increasingly important in an electronic era. Encourage clients to keep passwords in a safe place and to communicate the information to named executors or likely administrators. This should include not only the password for email accounts, but other passwords as well. And then, once an account is accessed, change the passwords.

CLT

Category: Pittsburgh Legal Back Talk

Focusing Forward

No. 1,356

Image: Laundrybooks.com

A lot of people have trouble being on time for meetings and other events. One of my favorite blogs, Time Management Ninja, had an excellent guest post on the causes of lateness.

Everybody is late at times and some of those are unavoidable. But a habit of lateness is one that must be broken.

One way to break a bad habit is to replace it with a good habit. Here’s a thought.

Develop the habit of focusing your attention on the future. Not the distant future or even next week. Focus on the immediate future. Keep asking yourself “What’s next?” Then do something about it. Make that next thing happen.

If you don’t know the answer immediately, you may need to make a list. After a lifetime of estimating how long a task will take, I must admit that the actual elapsed time is almost always greater — often multiples of the original plan. Travel time is one of those things that we constantly underestimate. So, just double it.

And what do you do when you get to your destination early? Prepare for the meeting or event. Check your schedule to plan to leave on time for the next event. Go over your plans for the rest of the day or even the week. Being ready increases your confidence and therefore your effectiveness.

If an event starts late or you suspect it will not conclude on time, if you can, announce at the beginning the time when you must leave.

If you cannot control your departure time — text ahead.

CLT

Category: Personal Productivity

Yes, Even a Lawyer Can Give Back Ten Talents For Five.

No. 1,355

Category: Pittsburgh Legal Back Talk

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Welcome

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.

Pittsburgh Legal Back Talk

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

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Categories

WQED FM and The Music of Christmas

A dialogue: Does a Broken Toilet Seat Not Replaced by Landlord in a Month Create an Uninhabitable Condition?

Broken toilet seat?

Leslie A. Margolies

Clifford L. Tuttle Jr.

When Should a Court Award Treble Damages Under UTPCPL?

Here’s a Tune that is sticky as Velcro (er, I mean . . . I don’t know what to call it!)

On the Witness Stand: Tell Me Your Story.

Its Christmas Season

Signs of the Times: Bathroom Iconography

Be Sure to Bequeath All Your Passwords to Your Heirs, Executors, Administrators, Successors and Assigns

Focusing Forward

Yes, Even a Lawyer Can Give Back Ten Talents For Five.

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