Consol Energy Center — a Hat Trick!

No. 490

With the opening of the Consol Energy Center, Pittsburgh now has three state of the art major league sports venues. And then there’s the Petersen Event Center at Pitt and Palumbo Center at Duquesne. Not bad for a town where none of them existed not too many years ago.

CLT

Category: Uncategorized

Case of the Week: Pikunse v. Kopchinski, 631 A.2d 1049 (1993)

No. 489

Earlier this week, I had a terrific group of lawyers attend my Landlord Tenant Litigation seminar at the Community College of Allegheny County North Hills campus. I told them I would post information about some of the cases mentioned in the seminar. And so, I decided to start a new feature called “Case of the Week” to highlight interesting and useful cases. Here’s the inaugural case:

Barbara was a waitress who was laid off at Christmas time. She told her landlords about it and promised to catch up 0n the rent as soon as she found a new job.

In March, she came home late at night and the lock had been changed. She spent the night locked out.

The next day, she called one of landlords and was told, rather rudely, that it was his building and he could do anything he pleased. So Barbara climbed through the window and changed the lock again. (Way to go, Barb!)

The Kopchinskis decided to make peace and change back the lock. But it was only a temporary truce. In April Barb unlocked the door to an empty apartment. She later learned that the Kopchinskis had put her belongings in storage for a short time and then put them at the curb for the trash pick up.

Barb sued the Kopchinskis for conversion. They defended on the grounds that they thought the property was abandoned. After all, they testified at trial, the Christmas Tree was still up (pretty normal in Pittsburgh, we interject) and there were dirty dishes and rotting food in the sink. They also claimed that they had visited at different times but could not contact her.

But the trial court was not impressed. It found the Kopchinski boys’ story to lack credibility. So much so, that it awarded $7,139.00 in actual damages and $7,500.00 in punitive damages.

On appeal to the Superior Court, Chief Judge Rawley wrote that, while the measure of damages for conversion is the market value of the goods, it was not required that the valuation be precise. ” . . . appellee’s household goods were thrown out by appellant tortfeasors, such that the fair market value of those goods could not be determined.”

“Appellants irrevocably disposed of appellee’s clothes, furniture, and appliances, as well as treasured photographs, books, and religious items. We will not preclude recovery merely because the damages awarded to appellee for her loss were estimated by the trial court. Indeed, it is the traditional function of the fact finder in conversion actions to estimate damages.”

The Kopchinskis also challenged the punitive damages. However, the Superior Court was of the opinion that the facts in this case were in line with the test for punitive damages set forth in Section 908(2) of the Restatement (Second) of Torts: “malicious, wanton, reckless, willful or oppressive.”

“While appellants contend that ‘at the very least, they thought that they were entitled to [appellee’s] personal property under some color of right,’ we observe that appellants did not keep the property, or even attempt to sell it to ‘satisfy the obligations’ of appellee. Rather, it is clear that, in retaliation for appellee’s failure to pay rent, appellants deliberately threw away items, such as furniture and appliances, which were clearly needed by appellee for everyday living. We are of the mind that in this regard, appellants acted, at best, with recklessindifference to appellee’s legal rights.

Perhaps even more significantly, however, appellants threw away items that, although devoid of any fair market value, were of tremendous sentimental value to their owner â€” photos, rosary beads, communion books, and cards which had been given to appellee by her mother or grandmother, now deceased. Appellants’ actions in this respect were, in our opinion, wanton and malicious. We therefore conclude that the trial court properly exercised its discretion in awarding appellee punitive damages.”

Judgment affirmed.”

CLT

Category: Uncategorized

Comment No. 300

No. 488

Well, I noticed the other day that this blog had hit comment number 300. Amazing.

So, I decided to investigate where the comment came from.

It was I.

CLT

Category: Uncategorized

AVVO ANSWER: House Sold for Taxes but Owner Thought Taxes Were Being Paid by Lender.

No. 487

In this era of national lenders, you cannot take for granted that the taxes are being paid through escrow. Here is an AVVO Answer I gave recently on the subject. Tax sales can be overturned for lack of proper notice — but you must act promptly.

CLT

Category: Uncategorized

WikiLeaks Strikes. NYT Reports.

No. 486

The internet has come to be the place where news breaks without warning, causing big problems for the main line media. There are those who have no compunction about releasing doctored or highly edited audio and video, misleading but with the look and feel of truth. We had an example of this earlier this week — fooling the likes of Fox News and the White House — with the fact checking only catching up about 24 hours after the story had appeared everywhere.

So now comes an organization called WikiLeaks, founded in December 2006, to release hundreds of classified documents about the War in Afghanistan today over the internet. It seems that WikiLeaks is opposed to government and corporate secrecy and wants to out all classified material everywhere while keeping the source of the leak anonymous. Of course, WikiLeaks keeps information about itself pretty quiet.

WikiLeaks gave three news organizations, The New York Times, The London Times and Der Spiegel, an opportunity to view these documents for a couple of weeks and fact check them, provided they were not published before today.

The Times ran a sidebar beside their reports explaining how they decided what to report and what not to report. For example, the Times says it won’t report material that could endanger the lives of troops in the field. Very noble — but does it really matter? Its all out there on WikiLeaks.

CLT

Category: Uncategorized

Tip to Landlords: Don’t Mail or Email a Notice to Quit.

No. 485

The Landlord and Tenant Act contains specific instructions on how to serve a notice to quit when evicting a tenant. The landlord must hand it to the tenant, post it on the door or slip it under the door. No other method will do.

In the AVVO Answer, linked here, the landlord sent an email to the tenant’s lawyer. My colleague, who knows the law well, correctly pointed out that an email does not comply with the statute. However, he said that the magistrate would probably accept it.

Maybe he is right. So the landlord wins and the tenant appeals. Then what happens when the case is finally ends up before an arbitration panel? If the tenant’s lawyer is sharp (or reads PLBT) he or she will put a torpedo right in the bow of the landlord’s case. I’ve seen it happen, its devastating to the landlord.

Suddenly, the case must start over, but now it is two or three months later. The money in escrow goes back to the tenant. The tenant continues to occupy the premises. And the landlord may never be able to recover all of the rent. Ever.

CLT

Category: Uncategorized

Security Deposit Games.

No. 484

I have been having an interesting conversation with a former resident in an apartment complex who moved out several months ago, leaving a forwarding address. Her landlord sent here a “list of damages” which in fact contained no damages at all, and no refund check.

This landlord typically holds the entire security deposit pending water and sewer bills and a cable bill that have not yet been compiled. It also makes a deduction for carpet cleaning in all cases, which is written into the lease. Two months later, the deposit is still being held.

Under the Landlord and Tenant Act, the Landlord may withhold a security deposit to cover damages in excess of ordinary wear and tear, delinquent rent and violations of the lease. But the landlord doesn’t have the right to withhold a security deposit while waiting for utility bills. By definition, bills that have not yet been presented cannot be delinquent.

If any damages, delinquent rent or violations of the lease do not exceed the deposit, the landlord is required to send the balance, along with the list of damages, to the tenant’s new address, within 30 days after the tenant vacates. The statute states:

“If a landlord fails to pay the tenant the difference between the sum deposited, including any unpaid interest thereon, and the actual damages to the leasehold premises caused by the tenant within thirty days after termination of the lease or surrender and acceptance of the leasehold premises, the landlord shall be liable in assumpsit to double the amount by which the sum deposited in escrow, including any unpaid interest thereon, exceeds the actual damages to the leasehold premises caused by the tenant as determined by any court of record or court not of record having jurisdiction in civil actions at law. The burden of proof of actual damages caused by the tenant to the leasehold premises shall be on the landlord.”

In this case, the landlord is holding the whole deposit well past the thirty days without justification under the law. This tenant has no delinquent rent. There are no violations of the lease. Even if you define utilities as additional rent, (many leases do) there are no delinquencies — only future bills. Ditto the unbilled cable charge.

Moreover, the mandatory carpet cleaning charge, even though it is written in the lease, should not be enforceable. The Landlord and Tenant Act states that “any attempted waiver of this section by a tenant by contract or otherwise shall be void and unenforceable.”

For any of you are skeptical that I may have quoted the Landlord and Tenant Act out of context, here is the Section on security deposits in its entirety:

Section 250.512. Recovery of improperly held escrow funds

(a) Every landlord shall within thirty days of termination of a lease or upon surrender and acceptance of the leasehold premises, whichever first occurs, provide a tenant with a written list of any damages to the leasehold premises for which the landlord claims the tenant is liable. Delivery of the list shall be accompanied by payment of the difference between any sum deposited in escrow, including any unpaid interest thereon, for the payment of damages to the leasehold premises and the actual amount of damages to the leasehold premises caused by the tenant. Nothing in this section shall preclude the landlord from refusing to return the escrow fund, including any unpaid interest thereon, for nonpayment of rent or for the breach of any other condition in the lease by the tenant.

(b) Any landlord who fails to provide a written list within thirty days as required in subsection (a), above, shall forfeit all rights to withhold any portion of sums held in escrow, including any unpaid interest thereon, or to bring suit against the tenant for damages to the leasehold premises.

(c) If the landlord fails to pay the tenant the difference between the sum deposited, including any unpaid interest thereon, and the actual damages to the leasehold premises caused by the tenant within thirty days after termination of the lease or surrender and acceptance of the leasehold premises, the landlord shall be liable in assumpsit to double the amount by which the sum deposited in escrow, including any unpaid interest thereon, exceeds the actual damages to the leasehold premises caused by the tenant as determined by any court of record or court not of record having jurisdiction in civil actions at law. The burden of proof of actual damages caused by the tenant to the leasehold premises shall be on the landlord.

(d) Any attempted waiver of this section by a tenant by contract or otherwise shall be void and unenforceable.

(e) Failure of the tenant to provide the landlord with his new address in writing upon termination of the lease or upon surrender and acceptance of the leasehold premises shall relieve the landlord from any liability under this section. (f) This section shall apply only to residential leaseholds and not to commercial leaseholds.

CLT

Category: Uncategorized

American Authors to be Protected from Foreign Libel Judgments Inconsistent with First Amendment.

No. 483

The New York Times reports that the U S Senate unanimously passed a statute protecting American authors from libel judgments obtained overseas in jurisdictions where it is easier to get a verdict. The House has passed a similar bill and is expected to adopt the Senate version. The provision would become effective after the President signs the enacted bill.

The Times reports that in some places, such as Britain, the burden is placed upon the Defendant in a libel action to prove truth. Of course, as all law students past the second year know, the Supreme Court set the standard for libel involving public figures in the iconic case of NY Times v. Sullivan, 367 US 254 1964). There, the Times had reported an untrue fact that would have been libelous under prior law. However, the Court held that the First Amendment guarantee of freedom of the press would be chilled if the press had to be concerned about a fact innocently reported about a public figure turned out to be false. In order to obtain a libel verdict, a public figure must prove malice by the publisher of the false statement. While this standard of proof presents substantial difficulties for a plaintiff, cases do occur where this burden can be met.

According to the report in the Times, a U.S. author could prevent enforcement of a foreign libel judgment if it was adjudicated under standards that were not as strict as those mandated by the First Amendment.

CLT

Category: Uncategorized

Payday Loans on the Internet? Yikes!

No. 482

Do not ever obtain a loan on the Internet. Here’s what happened to a person from Harrisburg who took out a payday loan. He ended up with three more loans that he didn’t remember making and actually paid them! Then he posted this question on AVVO Answers.

CLT

Category: Uncategorized

Name Something Illegal In Every Nation On Earth,That Every Nation Does.

No. 481

Espionage.

Talk about hypocrisy! Its a capital offense, yet the sentence is commuted regularly when we exchange our spies for their spies.

If it threatens the survival of our society, and if we wanted to actually deter spying, why would we ever let one go free?

CLT

Category: Uncategorized

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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

Consol Energy Center — a Hat Trick!

Case of the Week: Pikunse v. Kopchinski, 631 A.2d 1049 (1993)

Comment No. 300

AVVO ANSWER: House Sold for Taxes but Owner Thought Taxes Were Being Paid by Lender.

WikiLeaks Strikes. NYT Reports.

Tip to Landlords: Don’t Mail or Email a Notice to Quit.

Security Deposit Games.

American Authors to be Protected from Foreign Libel Judgments Inconsistent with First Amendment.

Payday Loans on the Internet? Yikes!

Name Something Illegal In Every Nation On Earth,That Every Nation Does.

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