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Landlord & Tenant: Appealing from the Magisterial District Judge’s Decision; Welcome to Arbitration, a New Game with New Rules!

Posted By Cliff Tuttle | July 29, 2009

Posted by Cliff Tuttle (c) 2009

THE NOTICE OF APPEAL: SO MUCH TO DO AND SO LITTLE TIME TO DO IT!

When a landlord is awarded possession of the leasehold by the Magisterial District Judge, the tenant may appeal to a board of arbitrators, but there are a few things to know.

Landlords and tenants frequently represent themselves in arbitration proceedings, sometimes effectively. However, too often they don’t because the procedure is a mystery to them and there are limits to the ability and inclination of the prothonotary, the judge or the arbitrators to help out a litigant who is trying to plead or prove a case and doesn’t know how to do it. If you must depend upon the kindness of others to guide you along, you may soon be in big trouble.

First, while judgments for damages may be appealed within 30 days, judgments for possession must be appealed within 10 days. This means that, as a practical matter, the tenant is going be appealing both possession and damages in 10 days, since there is no point in filing one appeal in 10 days and another in 30. However, if the tenant discovers that it is too late to appeal an order of possession, or if he is voluntarily relinquishing possession, he could still appeal the damages if the 30 day period has not run.

For the tenant, who is almost always the defendant, starting the appeal process requires filing of a notice of appeal with the prothonotary (Department of Court Records, Civil Division, in Allegheny County), using a short form which the prothonotary provides. He also files a praecipe for a rule on the landlord-appellant to file a complaint within 20 days, also provided by the prothonotary.

If the tenant meets certain financial guidelines, he/she can qualify to file the appeal without paying the filing fees. Once again, the prothonotary supplies forms, and the tenant-appellant goes to the motions judge, obtains an order of court authorizing the filing in forma pauperis and returns the signed order and other paperwork to the prothonotary.

However, there is one more hurdle for the tenant-appellant to jump. In order to obtain a writ of supersedeas from the order below granting possession, the tenant must agree to place each month’s rent in escrow with the prothonotary as it accrues on a specified date. If the tenant-appellant fails to pay the rent into escrow, the prothonotary revokes the writ of supersedeas and sends a notice authorizing the landlord to proceed under the writ of possession issued by the Magisterial District Judge.

So the tenant gets an opportunity to convince a board of three arbitrators not to grant possession to the landlord, but he/she gets it at a price. He/she must pay rent each month until the hearing and the rent will be available to the landlord to defray the part of the judgment for rent that accrues while waiting for the arbitration hearing.

Once all of this has been accomplished, it is the landlord’s turn.

A WELL DRAFTED COMPLAINT IS MORE THAN A WORK OF LITERATURE, IT IS OFTEN A NECESSITY.

The Landlord is now faced with the task of drafting a complaint. Many self-represented landlords think that this involves merely restating the averments in the complaint before the Magisterial District Judge. The prothonotary has provided a handy form which seems to cover everything. In a simple case, it may. But even in a simple case, things may turn out not to be so simple.

At a minimum, a written lease must be attached to the complaint. Any other writings, such as notices of default, upon which the claim relies, must be attached as well.

The landlord can probably get past the prothonotary by filing a very rudimentary complaint. And he/she may even win the case with one. But if the landlord is unlucky enough to have a tenant that qualifies for Neighborhood Legal Services in Allegheny County or the equivalent in other counties, or hires a lawyer who knows more than the basics about landlord-tenant law, the landlord-plaintiff could be in for a rude surprise.

Instead of immediately filing an answer, the defendant may file preliminary objections. Suddenly, the self-represented plaintiff finds him/herself being required to appear before a judge (in Allegheny County it will be Judge Wettick) to defend the complaint from legal arguments he/she doesn’t even understand. Time to hire a lawyer — pronto!

The truth is, the form complaint provided by the prothonotary is not satisfactory to cover the facts of a reasonably complex case and if a plaintiff has one of those, he should hire a lawyer to draft a proper complaint. This lawyer may ultimate pay for him/herself by finding claims the plaintiff has overlooked. For example, does the lease authorize the landlord to collect attorney’s fees?

ANSWER, NEW MATTER, COUNTERCLAIM

Once the complaint is filed and served, the ball is back in the defendant’s court. At minimum, the numbered allegations in the complaint must be answered with specificity within 20 days. Failure to do so could result in default judgment being entered — another complete topic too broad to discuss here. However, the defendant may wish to say more than a response to the individual allegations of the complaint. There may be defenses that involve other facts. For example, the lease might contain provisions not mentioned in the complaint which provide a defense or mitigation to the tenant.

But most important, the tenant-defendant may have claims against the landlord-plaintiff. This could take many forms. The premises may have not been habitable during all or a portion of the lease term — perhaps due to a non-functioning furnace or broken pipes, toxic mold, roach infestation. Again, this could be a topic for another complete post — strike that — a dozen posts.

Once again, the mechanics of pleading and proving a counterclaim may be beyond the capabilities of many, maybe most, defendants. There are rules to follow and we’ve already discussed what might happen when a litigant doesn’t know how to follow the rules. If you want to make a counterclaim and can afford to pay a reasonable fee, hire a lawyer.

The Plaintiff must file a reply to new matter and answer the counterclaim. Failure to do so may, quite frankly, lose the case. For example, if the new matter states that the plaintiff did not give mandatory notices and the plaintiff does not reply, the plaintiff will be bound by the statements of fact in the new matter. Thus, even though the plaintiff is prepared to present proof that notices were given, the defendant’s lawyer can successfully object to proof of facts contrary to the unanswered averments and prevent the plaintiff, at least temporarily, from regaining possession.

WHAT A NUISANCE! EVICTING A TENANT TO AVOID PAYING FOR POLICE VISITS

The City of Pittsburgh and at least one other municipality (Etna) have enacted ordinances that enable the municipality to declare properties a nuisance after three police calls. The matters can be relatively trivial, such as loud domestic arguments. If the unruly tenant has a neighbor who likes to call the police to solve noise problems, three strikes or more can accrue before the landlord is even aware that a problem exists.

At that point, the landlord is required to solve the problem or pay a fine every time the police are summoned. The most obvious solution is to terminate the lease.

However, if the landlord wishes to terminate the lease for non-economic reasons, the lease must have a provision that permits such a termination and it must be plead in the complaint. For example, if the rent is being paid by Section 8, there will probably be no arrearage and thus no grounds for early termination unless another lease provision has been violated. Section 8 tenants are often eligible for free representation by Legal Services. These lawyers know their stuff and will make short work of a poorly plead, poorly proven case involving termination on non-economic grounds. Moreover, the landlord is required by statute to give proper notice to Section 8 of the lease violation and failure to do so could put the landlord back at square one, forced to start over.

THE ARBITRATION HEARING

An arbitration hearing is less formal that a trial before a judge, but more formal than a hearing before a Magisterial District Judge. Too many self-represented parties learn this fact for the first time while trying to present their case.

Although the arbitrators may be understanding and even assist bewildered litigants (up to a point), rules of procedure and evidence do apply and a self-represented party may discover that he/she is unable to present the essential elements of the case, even after repeated attempts, and never really comprehend why. For example, under Rule of Civil Procedure 1305, many kinds of documents can be introduced into evidence without the kind of foundation that may be required in a trial before a judge. These can include repair estimates when the party who prepared the estimate is not present to testify and be cross examined. But such documents must be furnished to the opponent at least 20 days prior to the hearing. If the opponent is represented by counsel, a meritorious case can be derailed under Rule 1305 before it even starts.

Be advised that, in Allegheny County, at least one or probably two of the three arbitrators will be lawyers with significant experience in landlord tenant matters and will have heard numerous other cases. They will understand the issues and evidence properly presented, but they are not mind readers. Your case must still be organized, concise and properly presented. If you put them to sleep, obscure the message with irrelevancies or squabbles over small points or make any of the blunders set forth above (or others too numerous to mention), you could turn a winning case into a loser. It happens every day.

SLAMMING THE DOOR ON NO SHOWS.

If the other party doesn’t show up, you may still be required to present the basic elements of your case. When you do, an award will almost certainly be entered in your favor. Then, assuming that the complaint contains certain magic language at the beginning (this language is in the form the prothonotary provides), you will be entitled to close off the possibility of an appeal to common pleas court.

The arbitration staff will provide you with another form which you will take to the motions judge. After hearing some bare bones testimony, the judge will enter a verdict in your favor — closing off further appeal.

Now, if the other party shows up later with an excuse, you may be required to appear again before the judge to argue against the other party’s motion to reconsider. Heart attacks or car accidents on the way to court will probably be good enough to get them a new hearing. Poor communication or record keeping will not.

THE COST OF DOING BUSINESS

Representing yourself before a Magisterial District Judge is probably safe enough. Either party can appeal. However, as pointed out above with concrete examples, there are significant risks in being your own lawyer at the arbitration level.

The landlord should expect that, over the course of time, some tenants must be evicted and the cost of performing this function should be factored into the equation, just as some furnaces or pipes will break, requiring the immediate expenditure of funds.

In the tenant’s case, the decision whether to hire a lawyer may boil down to costs versus potential benefits. If the result is inevitable and you need two months (with rent paid in escrow) to find a new place, hiring an attorney will not change the outcome. But if there are real and substantial damages claimed by either party, or if there is a dispute over the distribution of the security deposit, hiring an attorney may make sense.

In addition, after the case is over, a landlord may be entitled to garnish the ex-tenant’s wages. This option is relatively new and is not yet used very often. There are limiting factors to be considered and when the judgment is relatively small or the ex-tenant is receiving modest wages, the economic factors may or may not make garnishment possible or worth doing. Nevertheless, this potential changes the game. A tenant may wish to make a payment arrangement to avoid a potential wage garnishment and a landlord may wish to settle to reduce cost of recovering the judgment amount. Lawyers can help the parties reach a settlement and write an agreement that will accomplish the task.

CLT

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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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