What To Do When A Tenant Appeals and Lies About Paying Rent

This article is intended for Pennsylvania landlord-tenant appeals from the Magistrate Court to the Court of Common Pleas. Particularly, when a tenant submits a false affidavit to the court alleging that rent was paid in the month their appeal was filed. This article reviews the applicability of Rule 1008 and potential remedies.

I see it happen all the time — a landlord successfully obtains a judgment to evict a tenant based on the tenant’s failure to pay rent, the tenant files an appeal, and lies to the court saying they paid rent for the month the appeal was filed. What is the landlord suppose to do?

Pennsylvania Landlord-Tenant Appeal Overview

When a tenant appeals an eviction judgment within ten (10) days of the Magistrate Hearing to the Court of Common Pleas, the Pennsylvania Rules of Procedure require the tenant to pay the lesser of the rent actually in arrears or 3 months’ rent. Pa. M.D.J.R.C.P. 1008.  However, there is a loophole thanks to Rule 1008(C). Tenants who don’t have the ability to pay this amount can file a Petition asking the court to proceed in forma pauperis (IFP) by claiming that their income is under a certain level.

By filing in forma pauperis (IFP), the tenant is required to submit an affidavit to the court verifying whether or not rent was paid in the month in which the appeal was filed. If the tenant states that rent was not paid in the month the appeal was filed, the tenant has to pay 1/3 of the monthly rent to the court when the appeal is filed and the remaining 2/3 balance within twenty (20) days. The tenant then must pay monthly rent to the court each successive thirty (30) days following the appeal.

However, sometimes a tenant claims in the tenant supersedeas affidavit that rent was paid in the month the appeal was filed, even though it was not, and the court doesn’t even require the tenant to present proof of payment. What is a landlord supposed to do when the tenant commits this blatant perjury?

File a Motion to Terminate the Tenant’s Supersedeas

When a tenant lies on the Tenant Supersedeas Affidavit by claiming that rent was paid when it was not, the landlord would be required to file a Motion with the Court asking the court to terminate the tenant’s supersedeas. The supersedeas is a legal term which means that the proceedings in the lower court are suspended and prohibits the landlord from seeking possession while the appeal is pending.  If a Motion isn’t filed, you’ll have to wait until thirty (30) days after the appeal is filed to see of the tenant fails to make ongoing rent payments to the court’s escrow and hope that you can terminate the supersedeas at that time.

Sanctions and Penalties

Most landlords are interested in whether there are any additional penalties and whether they can collect attorney’s fees based on the tenant’s false statement to the court. As far as obtaining attorney’s fees, hopefully, your Lease Agreement permits the recovery of attorney’s fees in the event of a breach of the Lease Agreement. Under that scenario, your attorney can request an award of counsel fees during the arbitration hearing. Alternatively, proper procedure must be followed to in order to file a Motion for Sanctions against the tenant by demanding that the tenant amend the false filing with the court prior to seeking sanctions. To pursue criminal penalties for perjury, I would recommend contacting the District Attorney or consider filing a Private Criminal Complaint.

Obtaining Representation

If you are a landlord with a tenant that is giving you the business by playing games with the legal system, give me a call. I represent landlords in the Lehigh Valley area including Bethlehem, Allentown, Easton, Stroudsburg, Doylestown, Reading, Lehigh County, Northampton County, Berks County, Bucks County Monroe County, and Montgomery County. I can assist you in all landlord-tenant matters by helping you obtain possession, getting a judgment against the tenant, and hopefully collecting the judgment.

Call me at (610) 417-6345 for a free consultation.

What is “unreasonable noise” as defined by 18 Pa. C.S.A. § 5503(a)(2)?

Disorderly Conduct, 18 Pa. C.S.A § 5503, is an offense that is cited frequently in Pennsylvania because it’s definition is so broad. Pennsylvania statutes define disorderly conduct as conduct that has “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.”  Disorderly conduct includes fighting, threatening, making unreasonable noise, and using obscene language and gestures. I wanted to provide more specific information for individuals that have been charged with § 5503(a)(2) for causing “unreasonable noise.”

What is unreasonable noise?

Unreasonable noise is to be given its “plain, ordinary meaning” and is defined as “noise which is not fitting or proper in respect to the conventional standards of organized society or a legally constituted community.” In order for the Commonwealth to convict someone of violating 18 Pa. C.S.A. 5503(a)(2), the Commonwealth must prove that the Defendant’s actions intentionally or recklessly caused or created a risk of causing a public inconvenience, annoyance, or alarm.

“The offense of disorderly conduct is not intended as a catchall for every act which annoys or disturbs people and it is not to be used as a dragnet for all the irritations which breed in the ferment of a community. It has a specific purpose; it has a definite object, it is intended to preserve the public peace.” Commonwealth v. Hock, 728 A.2d 943 (Pa. 1999).

Disorderly conduct for unreasonable noise is a specific intent offense.  The Commonwealth must prove that the Defendant intended to cause or created the risk of causing a public inconvenience.  The court will look into factors such as the volume of the noise, whether the the public peace was upset, and the time of day the noise took place.

In Commonwealth v. Maerz, 2005 Pa. Super. 267 (Pa. Super. 2005), the Court decided the issue of whether shouting profanities at a neighbor is considered disorderly conduct. The Superior Court of Pennsylvania vacated the sentence entered by the Court of Common Pleas convicting Defendant of disorderly conduct. In entering the ruling, the Court stated that the Defendant’s language was irrelevant since the prohibition against unreasonable noise is directed at the volume of the speech and not its content.

Furthermore, the Court found that there was no evidence that the Defendant was unreasonably noisy. The Court reasoned that just because the neighbor was annoyed and irritated by the Defendant’s loud outburst alone does not create an inference that the Defendant intended to cause a public inconvenience. Moreover, the court reasoned that the level of noise was not inconsistent with the neighborhood’s tolerance levels and that the public peace was not upset. Based on this reasoning, the Superior Court vacated the Defendant’s conviction.

Charged With Disorderly Conduct?

If you have been charged with disorderly conduct, feel free to call me to discuss your case. I represent clients located in Northampton and Lehigh County and would be happy to discuss your case with you if you are located in the Allentown, Bethlehem, and Easton area. Call me at (610) 417-6345.

What To Do When A Tenant Withholds Rent

Is a tenant permitted to withhold rent in Pennsylvania if there are problems with the rental property?  In some cases, a tenant can withhold rent, but proper procedure must be followed. In most cases, tenants do not follow the proper procedure in withholding rent and are in breach of the Lease Agreement by withholding rent.

A typical scenario occurs when a tenant has a complaint about a certain problem existing on the property such as mold, lack of heat, water leaks, insect or rodent infestation, or code violations. The tenant has a duty to inform the landlord of the problem and give the landlord a reasonable period of time to fix the problem. In the event the landlord is not diligent in fixing the problem within a reasonable period of time, the tenant is able to exercise their remedies under law.

The tenant generally has three remedies when a landlord fails to make necessary repairs: (1) in the event of a serious breach rendering the property unfit for habitability, the tenant can declare the landlord in breach of the Lease Agreement, end the Lease Agreement, and vacate the premises; (2) the tenant can repair the issue themselves, notify the landlord of the same, provide the landlord with the cost of repairs, and deduct the costs from their rent; or (3) place ongoing rent into an escrow account, notify the landlord of the same, and release the rent from escrow once the landlord makes repairs.

The tenant is prohibited from withholding rent unless ongoing rent is placed into an escrow account. In the event rent is withheld without placing rent into an escrow account, the landlord can file eviction proceedings against the tenant. Please also be advised to consult an attorney before exercising remedies as each case must be evaluated based on their own facts and circumstances. A landlord is not required to provide a tenant with an absolutely perfect property. A landlord is only required to provide the tenant with a property that is safe and habitable. Remedies should only be exercised in the event of a serious breach rendering the property uninhabitable. In the event a remedy is exercised improperly, a tenant can be held responsible for unpaid rent, late fees, court costs, and attorney’s fees.

If you have a tenant that is withholding rent from you, please contact me to discuss your case. I am a landlord-tenant attorney located in Bethlehem, Pennsylvania, assisting clients in the Allentown, Bethlehem, and Easton area. Feel free to call me at (610) 417-6345.

What To Do When A Tenant Sues You For Their Security Deposit

In Pennsylvania, a tenant is required to provide the landlord with their forwarding address in writing in order to receive the return of their security deposit.  Once the landlord receives the tenant’s forwarding address, the landlord must then return the unused portion of the tenant’s security deposit with an itemized list of damages within thirty (30) days. A landlord is permitted to use the tenant’s security deposit to cover items related to physical damages, unpaid rent, and unpaid utilities that the tenant is responsible for under the terms of the lease. If an itemized list of damages is not sent to the tenant within thirty (30) days of receipt of the tenant’s forwarding address, the landlord will forfeit the right to withhold any portion of the tenant’s security deposit and the tenant is able to seek double the amount of the security deposit.

What if I sent the tenant a list of damages and the tenant still tries to sue me?

I’ve encountered this problem before where a client contacts me to inform me that they’re being sued by a former tenant after notifying the tenant that their security deposit is not being returned since the landlord’s damages exceed the amount of the security deposit. The tenant then tries to claim that they never received the itemized damages letter and now wants to file a lawsuit seeking double the amount of the security deposit (treble damages) for not complying with Pennsylvania’s Landlord-Tenant Act.

To avoid this problem, the letter containing the itemized list of damages should always be sent via certified mail. Sending the letter via regular mail creates the possibility of the tenant claiming that they never received the itemized list of damages.

Additionally, landlords should be more proactive in initiating legal action against the tenant before the tenant initiates legal action against them. Most landlords feel that it’s either too costly or may be a waste of time to chase around a tenant for additional money after the tenant has already vacated the property. However, not taking steps to recover the full amount of damages sets up a tenant to claim that they never received an itemized list of damages.

What to do if you’re being sued by a tenant for the security deposit.

In the event you’re being sued by a tenant for the security deposit, contact an attorney immediately. A counterclaim should be filed against the tenant for the full amount of the damages. A counterclaim must be filed at least five (5) days prior to the scheduled court hearing. Pa. R.C.P.M.D.J. 315.  The hearing would then be rescheduled between 12-30 days from the filing of the counterclaim.

Begin gathering important documentation about the case. Obtain the Lease Agreement, any correspondence (letters, emails, and text messages) between you and the tenant, the itemized list of damages, before and after photos, estimates, invoices, and receipts.

If you are looking for representation in any landlord-tenant matters, feel free to contact me by calling (610) 417-6345.  I am a landlord-tenant law attorney located in Bethlehem, PA, and primarily represent clients located in Northampton and Lehigh County.

Pennsylvania’s Elective Share For Disinherited Spouses

If your spouse has disinherited you from their Will, you may be wondering whether you have any rights or recourse. In this article, we explore Pennsylvania’s elective share. This law essentially establishes that a disinherited spouse can force the Estate to provide him or her with one-third of the decedent’s assets even when they have been deliberately excluded or disinherited from their spouse’s Will. If you have been disinherited in a spouse’s Will and need more information, feel free to contact me at (610) 417-6345.

SPOUSAL ELECTION IN PENNSYLVANIA

Can a spouse be excluded from receiving any assets from a deceased spouse?

At death, it is common for a deceased person to convey his or her assets to his surviving family members through a formal legal document, also known as a Last Will and Testament. Typically, this document illustrates the decedent’s decision on who gets property and who does not and it is common practice that spouses ordinarily leave money and property to their surviving husband or wife.  There may be incidences where the surviving spouse is excluded from inheriting any of the assets of a deceased spouse.  However, according to Pennsylvania law, it is against public policy for a surviving spouse to be completely disinherited and he or she spouse is permitted to either accept the provisions of the will or “elect against” the decedent’s estate known as the right of election. In other words, a will is not the final word on what happens to the decedent’s estate.

The right of election ensures that the surviving spouse receives a fair portion of the estate. Accordingly, under Pennsylvania law, the surviving spouse has a right to an “elective share” of one-third (1/3) of decedent spouse’s property or assets.  Therefore, when the will is administered, the surviving spouse can choose to either accept the terms of the will or receive a minimum “elective share” as defined in the statutes.

Note: It is important to note that the right of a surviving spouse to take an elective share may be waived before, during, or after marriage or before or after spousal death. For example, if divorce proceedings were underway during the time of death, willful neglect of the deceased spouse,  or a prenuptial agreement agreed upon by both parties prior to marriage stating that the surviving spouse has waived his or her rights to an elective share. This, in turn, disqualifies a spouse from making an election.

What property is subject to election?

According to Pennsylvania Law, the following property is subject to election:

  • Property transferred from the decedent by will or intestacy (when there is no valid will executed by the deceased person)
  • Income from property of the deceased spouse, which the decedent was entitled to receive during marriage provided that the deceased had the right to the income at the time of death
  • Property that was transferred during decedent’s life that the deceased person still had the right to revoke the transfer and assume the property or invade the principal for his or her own benefit
  • Property conveyed by the deceased person during marriage to the decedent and another with a right of survivorship (e.g. joint property)
  • Annuity payments to the extent that it was purchased during the marriage by the deceased spouse and the decedent was receiving annuity payments at the time of death
  • Property or gifts given by the decedent during the marriage within one year of death to the extent that the amount exceeds $3,000 per recipient.

What property is not subject to election?

The following property is not subject to election:

  • Any conveyance or transfer of property made with the express consent of the surviving spouse
  • The proceeds of life insurance policies of the decedent
  • Interests from any employer established pension, deferred compensation, retirement plans, profit sharing, etc. for the deceased
  • Property passing by the decedent’s exercise or non-exercise of any power of appointment given by a person other than the deceased

What is the process for taking an elective share and is there a specified time frame that an election must be made?

There are specific procedural requirements that need to be followed in order to claim an elective share. A surviving spouse that would like to claim an elective share must do so in writing and file the notice with the clerk of the Orphan’s Court in the county where the decedent lived and the will was probated.  The statement must be filed by the surviving spouse within 6 months of either the date of death or within 6 months of the date of that the will was probated – whichever date comes later.

Unemployment Benefits for Teachers – Explanation of Section 402.1(1)

Pennsylvania unemployment law states that teachers and professors will not be paid unemployment benefits between two successive academic years provided that there’s “reasonable assurance” given that they will perform services in a second academic year. Although this law is very clear for teachers and professors who are full-time employees and simply on a summer break, this can created problems for substitute teachers who perform services for a school on an “as-needed ” basis or in situations where a teachers’ employment status has been downgraded from full-time to part-time.

Section 402.1(1) is the section of the Pennsylvania Unemployment Compensation Law that applies to teachers not being able to collect unemployment benefits between academic years as long as they are given “reasonable assurance” of returning for the next academic year. A contract of employment will certainly considered “reasonable assurance” of returning work the following academic year. A bona fide offer of employment will also be considered “reasonable assurance.” A bona fide offer is one in which the terms for the second academic year are not substantially less than that of the first academic year.

If you are a teacher whose employment status has changed and have been denied UC benefits under Section 402.1(1), please contact me. You may have received a Notice of Determination denying your unemployment benefits, but you have 15 days to file an appeal to request a UC referee hearing on the denial. If you can establish that the school did not give you “reasonable assurance” of continuing employment or that the school’s offer was not bona fide because, for example, your work schedule or compensation has been dramatically reduced, you could be entitled to unemployment benefits.

I am an unemployment compensation attorney located in Bethlehem, Pennsylvania, and would be happy to discuss your case with you. Please feel free to call me at (484) 362-9286.