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Archive for the tag “complaint”

A Collection of Landlord/Tenant Law Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of landlord/tenant law issues and legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

My Articles:


Statute of Limitations When a Defendant Dies

One the most basic legal principles is that statutes of limitations establish the time frames in which a civil suit can be brought in a given case and any attempt to bring suit outside of that time frame will inevitably result in the case being dismissed. For example, the statute of limitations for a personal injury matter is two years from the date the injury is, or should be, discovered (see: 42 Pa.C.S.A. §5524(1), (2), and (3)) and, for the most part, bringing a personal injury matter beyond that two year deadline will be cause to dismiss the claim.

One of the possible exceptions to the application of statutes of limitations is if the defendant dies during the pendency of the limitations period. As with any complaint, it is the duty of a plaintiff “to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and then institute suit within the prescribed period,” and that includes determining whether the defendant is living or dead at the time of suit. Lange v. Burd, 800 A2d 336 (Pa.Super. 2002).

Generally speaking, a dead person cannot be sued or be a party to an action Montanya v. McGonegal, 757 A.2d 947 (Pa.Super.2000); Lange v. Burd, 800 A2d 336 (Pa.Super. 2002). However, 20 Pa.C.S.A. §3383 carves out an exception to this general rule permitting a dead person to be sued within one year after his death. §3383 goes on to say that its terms ought not be construed to shorten a two year statute of limitations period. Therefore, hypothetically speaking based on the above, if someone died on the day a plaintiff discovered his injury, then the plaintiff would have two years to bring suit against the deceased. At the other end of the spectrum, if someone died on the last day of the two year statute of limitations, then the plaintiff would have an additional year to bring suit against that defendant (for a total of three years). Finally, if someone died during the statutory two year period, the last date a plaintiff could bring suit against the deceased could be either the last day of the two year statutory period or the last day of the one year period stated in §3383 above, whichever came later. Longo v. Longo v. Estep, 289 Pa.Super. 19 (1981); Rylee et ux. v. Nicoll’s Administrator, 74 Pa.D.&C. 269 (1950); Telford Coal Company v. Prothero et al., 24 Pa.D.&.C. 183 (1935).

After considering the above, the obvious question arises as to whether one can substitute another party (e.g.: an estate) for the deceased defendant in order to pursue a plaintiff’s claims. According to applicable case law, one may bring suit against a decedent’s estate in order to pursue claims that would have otherwise been against the decedent himself if he were alive. If a complaint is filed against a deceased person, it must be withdrawn and refiled against his estate instead. Montanya v. McGonegal, 757 A.2d 947 (Pa.Super.2000). The refiled complaint against the estate is subject to the same applicable statutes of limitations stated above for the decedent. See Montanya. The filing of a complaint against the deceased, instead of his estate, does not serve to toll the running of statutes of limitations described above in order to permit an action against the decedent’s estate after the expiration of statutes of limitations described above. See Lange.

The only way around the above statutes of limitations is to argue that there was some sort of fraud or intentional concealment of the death of the defendant which served to unfairly prejudice plaintiff in his attempt to bring suit. See Lange. The plaintiff does not have to prove that fraud or concealment was intentional, just simply that the opposing party’s conduct served to conceal the death of the defendant. See Montanya. When arguing that the opposing party committed fraud and/or concealed the death of the defendant, it should be noted that silence on the part of the opposing party is insufficient to constitute fraud or concealment. As a result, an insurance company or party failing to volunteer the information that the defendant is dead at any time – or even accepting service for the deceased at his residence – during the life of the claim and/or suit will not constitute fraud or concealment. See Montanya. The fraud or concealment must be the result of an affirmative action; consequently a passive action (e.g.: taking no action at all) is not an affirmative action. See Montanya. Moreover, the plaintiff has the burden of proving the fraud and/or concealment with clear and convincing evidence.

Although Pennsylvania law may provide a case with a little more life after the death of a defendant, ultimately statutes of limitations will apply to kill a case even if the death of a defendant did not do it already.

Originally published on June 24, 2014 in The Legal Intelligencer Blog and can be seen here.

Aggrieved Parties and Their Right to Appeal

The Rules of Civil Procedure are designed to facilitate litigation so it can be performed smoothly and predictably. Unfortunately, one simply cannot predict and write a rule for every possible contingency that could happen in the life of a case. There will always be circumstances that seem to fall into the cracks between the rules.

Pa.R.C.P. 1028(a)(1) requires a complaint be dismissed when the court lacks jurisdiction over the subject matter and/or the parties to a claim. Pa.R.C.P. 1028(5) requires a complaint be dismissed when a plaintiff lacks standing to file one on the issues contained therein. What if a plaintiff sues two defendants in municipal court, wins a judgment for jurisdictional limits against only one defendant but files an appeal to the court of common pleas against both parties despite having won as much as legally permitted against one of the defendants?

Although, pursuant to 42 Pa.C.S.A. §5105, a party may file an appeal from a final order, it could be argued that only an aggrieved party may file an appeal, as in Pierro v. Pierro, 434 Pa. 131 (1969). Pennsylvania case law has something to say on this subject: “Standing [to file an appeal] requires an aggrieved party, and one ‘who is not adversely affected in any way by the matter which he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge,’” as the court held in Lisa H v. State Board of Education 67 Pa.Cmwlth. 350 (1982), quoting William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168 (1975).

If our hypothetical plaintiff above won a judgment against one of the defendants for full jurisdictional limits in municipal court, it could be argued, per the above case law, that the plaintiff is not an aggrieved party, as he won his case against the defendant as completely as possible according to his own complaint and the municipal court rules. As he is not aggrieved, it could be argued, he has no standing to file an appeal of that judgment to the court of common pleas against that defendant. If the plaintiff had no standing and, therefore, could not file an appeal of the judgment, the court of common pleas, theoretically, has no jurisdiction over the person or subject matter at issue as it pertains to that one defendant.

The statute and cases seem to point in the direction that only a truly aggrieved party can file an appeal. Unfortunately, there seems to be a conspicuous absence among the relevant cases and statutes as to precisely whether a party that completely wins its case against a party, particularly in municipal court, is actually an aggrieved party with the right to appeal. It would seem that this issue is ripe for testing in the courts as soon as the opportunity arises.

Originally published in The Legal Intelligener Blog on May 21, 2013 which you can see here.

Reminder to Landlords Filing for Eviction

If a landlord is filing for eviction in Philadelphia, he must ensure he follows the rules for eviction specifically else the only thing that will be evicted will be the landlord from the courtroom with an unsuccessful lawsuit.

At the time a leasehold is rented to a tenant, all Philadelphia landlords must secure a landlord license, a business license, and a Certificate of Rental Suitability. In addition, if a landlord is renting to tenants which include children 6 years old or younger, he must:

  • certify the property is lead safe or lead free;
  • provide the tenant with a copy of a lead safe or lead free certificate, along with other required information;
  • provide the Department of Public Health with a copy of the lead safe or lead free certificate, signed by the tenant

Regarding the licenses and certificates, please see the following:

In order to evict a tenant, a landlord must file a complaint for eviction in landlord/tenant court located on the 6th and 10th floors of the Widener Building at 1339 Chestnut Street, Philadelphia, PA. A complaint for eviction must comply with the terms of the lease as to what can be requested as damages (e.g.: forsaken rent, late fees, attorney’s fees, and so on) and when the complaint can be filed (e.g.: notice requirements before a court action is started).  A complaint for eviction must specifically request “termination of term” as a remedy, otherwise the lease cannot be terminated by the court if the landlord wins the case for money damages for unpaid rent. Furthermore, a landlord must include with his complaint for eviction a copy of his landlord license, business license, Certificate of Rental Suitability, and Lead Paint Certification. If the licenses and certifications are not secured, then the landlord will not be entitled to receive rent for the months without them and if the landlord does not have them at the time of the hearing, he will not have a right to evict. Please note that even if a tenant has paid rent while a landlord is unlicensed and therefore not entitled to receive rent payments from the tenant, the tenant still cannot successfully sue the landlord to have that rent returned or repaid.

So, if you are a landlord and are planning to file for eviction, be certain to ensure you are compliant with all applicable laws and ordinances.  Better yet, consult with an attorney before taking any legal action.


Clash of the Canons and Civil Law at GTS

This post is from Anglican Curmudgeon which you can find here.

An excerpt of the Anglican Curmudgeon post is as follows: “The recent meltdown at the country’s oldest theological seminary (and the only Episcopal seminary under the direct supervision of ECUSA) puts to the test some of the canonical abuses and litigation strategy implemented in the last few years by the Church’s leadership at 815 Second Avenue. Eight of the ten full-time faculty employed by General Theological Seminary declared in a September 17 letter to the Board of Trustees that due to the “hostile work environment” created by the Seminary’s Dean and President, the Very Rev. Kurt H. Dunkle, they were unable to continue to work under him.

The phrase “hostile work environment” is drawn from the well-developed body of labor law enforced in the United States by the National Labor Relations Board. However, ever since a decision by the United States Supreme Court in 1979, the NLRB’s jurisdiction has been held not to extend to religious schools and their faculties (including lay faculty), due to concerns over entanglement with religious rights under the First Amendment. Just as with all the recent Church property disputes, ECUSA has been at the forefront of insisting that the civil courts must defer to it in all civil litigation involving its religious affairs, governance and operations.”

You can learn more about this issue here.

At the Service of the Clerk and Local Custom

Some lawyers like to joke that the Clerk of Court “is god” because the Clerk is, more or less, the gateway into Court.  If the Clerk rejects documents being filed he can frustrate the efforts made by the person doing the filing to seek redress in Court.  In the same way, the Clerk accepting documents allows one access to the Court.  Now, in theory at least, the Clerk is to abide by the Rules of Civil Procedure when accepting or rejecting documents for filing; unfortunately, however, sometimes local habit or custom becomes confused with actual rules and they (custom and habit) can be enforced just as stringently as the actual Rules.

It is practically axiomatic that a case filed in Court needs to be served, which more-or-less means delivered, to the opposing party through hand delivery to ensure the person received it and had an adequate amount of time to respond to it.  The requirement for service is no different in the context of a divorce complaint.

Along with most divorces is an Affidavit and Counteraffiavit under Section 3301(d) of Title 23 of the Pennsylvania Code that is sent to the parties.  Section 3301(d) governs divorces litigated (and often granted) on the basis that the parties are separated for at least two years.  Now, the Affidavit referred to above is prepared by the person seeking the divorce on the basis of a two-year separation and it must be sent to the other party to give him/her the opportunity to accept or deny the assertions in the Affidavit through the filing of the aforesaid Counteraffidavit.  The only thing the Rules require is for the Affidavit and Counteraffidavit to be sent to the opposing party by mail.

Despite the simple requirement described above, fairly early in my career I learned of the power of the Clerk and his interpretation of the Rules and the application of local custom.  I sent an opposing party the Affidavit and Counteraffidavit by mail and then tried to file it with the Court accordingly.  When I tried filing it with the Clerk he rejected it on the basis that the Affidavit and Counteraffidavit were not personally served (i.e.: personally handed to the opposing party as opposed to simply mailed); mind you, the Rules do not require personal service yet this is a great example of what I mention above: local habit and custom  became confused with actual rules as, apparently, personal service of the Affidavit was the typical custom in Philadelphia.

I suggested to the Clerk that he should accept my filing as it is compliant with the Rules and his requirement for personal service is not found in the Rules.  Needless to say, our interaction became somewhat heated when I tried to press him to accept my filing.  It got to the point where I told him to show me where in the Rules personal service is required.  In response, the Clerk brought out a practice manual (not the Rules!) to show me what the suggested “best practice” is for service.  He failed to understand that neither a practice manual nor suggested best practice are the same as the Rules, yet, due to local custom and habit having been hardened into de facto rules, he refused to budge on the point.  Ultimately, I compelled him to take my filing and he, after I left, wrote, in handwriting, on my filing that it was to be rejected as non-compliant and got the judge to sign it.

As a result of the above, I now include the Affidavit and Counteraffidavit as an exhibit to the divorce complaints I file and serve so there is absolutely no doubt that they are served personally upon the opposing party.  Even if the parties have been separated for less than two years, I modify the Affidavit to say something like “the parties will be separated for two years on [date]” just to ensure maximum compliance and clarity.  I highly recommend other family practitioners to do the above as it helps streamline the process, ensure compliance with both the Rules and local custom, and eliminates any question as to the service of the Affidavit and Counteraffidavit.

Part of an attorney’s practice is not just to know the laws and rules applicable to a certain case but to also have familiarity with the idiosyncrasies of a given Court Clerk as he can cause a case to bottleneck in his office and stymie its progress.  Unfortunately, as with me above, these lessons are sometimes learned through trial and error, but through the trial a new and more efficient practice has emerged and I hope it helps other family law practitioners as much as it has helped me.

A Judge’s Dishonorable Friends

Two New Jersey judges, Raymond Reddin and Gerald Keegan, are the subject of ethics complaints due to the company they allegedly keep.


Anthony Ardis, a former official Passaic Valley Sewerage Commission, was indicted by a state grand jury in 2011 for alleged misconduct and various crimes such as directing staff workers to do personal work for him.  Mr. Ardis is also friends with the two aforesaid judges.


Judge Reddin is a childhood friend of Mr. Ardis and Judge Keegan has been his friend for some twenty-five (25) years.  The three (3) men are members of the Cathedral of Saint John the Baptist Roman Catholic Church in PatersonNew Jersey.  In addition, they founded what appears to be a healing ministry of the Cathedral called Bartimaeus Family which was inspired by the battle of cancer suffered by Monsignor Mark Giordani.  The three (3) men would have dinner and attend Mass at the Cathedral each Thursday along with as many as thirty (30) other people.


Despite the indictment of Ardis, the two (2) judges continued participating with Bartimaeus Family while simultaneously sitting as judges in the same Court district as indicted Mr. Ardis, and therein lays the rub when it comes to members of the judiciary.  The New Jersey Advisory Committee on Judicial Conduct alleged that the judges’ continued attendance at meetings of Bartimaeus Family with Mr. Ardis created an appearance of impropriety and had concerns that the integrity of the judiciary would, therefore, be compromised.  Canon 1 of the Code of Judicial Conflict, which requires judges to maintain high standards of conduct, as well as Canon 2A, which requires judges not to take an action which compromises the confidence and integrity in the judiciary, and Canon 5A(2), which requires a judge’s extrajudicial activities not demean the judicial office, were all citied to justify the ethics complaints about the judges.


This matter is still developing as the criminal case against Mr. Ardis is still ongoing and the judges will presumably respond to the allegations made against them.  Of course, there is denial of impropriety all around and, in fact, Judge Reddin has been a highly rated jurist in the past.


This situation illustrates the predicament in which judges often find themselves.  In order to remain compliant with the expectations to avoid even the appearance of impropriety, it would seem that judges must choose between their position and things that are potentially innocent and innocuous like maintaining contact with a lifelong friend or attending a church or community group which may happen to also have someone of questionable repute among its membership.  Does a judge have to give up friendships?  Does the judge endorse his friend’s or the other member’s conduct?  Indeed, does he even know the member or about his conduct?  Perhaps not, but situations such as the one described above make it clear that a judge must remain ever vigilant, perhaps even to the point of avoiding public contact with certain people, in order to ensure full compliance with the expectations upon them and their office, including the codes of conduct applicable to their jurisdictions.

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