PRESS RELEASE: Monumental Decision Imposing Financial Judgment on Pennsylvania State Police for Violating Second Amendment Rights!

Addressing several issues of first impression, the Commonwealth Court on Wednesday issued a 20 page decision and entered a judgment of approximately $6,500.00 against the Pennsylvania State Police (PSP) for erroneously denying an individual his right to keep and bear arms.

With eight pages of the decision addressing the factual and procedural background, the case is somewhat complex; however, stated succinctly, the individual applied for a firearm and was denied by the PSP. Although he submitted a Pennsylvania Instant Check System (PICS) Challenge, where he provided the PSP with copies of the original charging documents reflecting that he had only been charged with and pled guilty to a summary offense, the PSP ignored the documentation and issued a final determination that he was prohibited. Thereafter, he retained Attorney Joshua Prince for an appeal to the Pennsylvania Attorney General. After the PSP received the appeal, which included copies of all the documents the individual originally submitted, the PSP called Attorney Prince to inform him that the PSP was overturning its decision but that they would not issue a letter confirming the reversal.

Thereafter, Attorney Prince filed a complaint against the PSP, pursuant to the Criminal History Record Information Act (CHRIA), while the case proceeded before the Attorney General. The PSP would later stipulate, before the Attorney General, that the individual was not prohibited; however, the PSP opposed the CHRIA action and argue that (1) the PSP was entitled to sovereign immunity for any damages and (2) that the individual was foreclosed in bringing a CHRIA action, since he had filed an appeal to the Attorney General.

The Commonwealth Court, in response to the PSP’s assertion of sovereign immunity, declared that the

PSP did originally maintain incorrect criminal history record information with respect to Haron in violation of section 9111 of CHRIA, which wrongfully resulted in the denial of his constitutional right to purchase a firearm for a period of several months and required him to ultimately obtain counsel.

The court then went on to find

that the maintenance of incorrect criminal records resulting in an unwarranted denial of a constitutional right to purchase a firearm constitutes “aggrievement.” Because Haron was aggrieved, he is entitled to recover actual and real damages, consistent with section 9183(b)(2) of CHRIA, in the amount of $1,500.00, which represents the retainer fee that Haron was required to pay to obtain counsel to represent him [before the AG] in this matter. Additionally, Haron is entitled to reasonable costs of litigation and attorney fees.

In relation to the PSP’s second assertion that he was precluded in instituting and maintaining an action under CHRIA because he filed an appeal to the Attorney General, the court declared:

we do not believe that Haron’s initial choice to proceed under the UFA forecloses any potential relief under CHRIA. Indeed, the only relief available under the UFA appears to be correction of an individual’s criminal history records, whereas CHRIA provides other potential relief in the nature of an injunction and/or damages.

While the judgment is minuscule in relation to the deprivation of a constitutional right, we hope that this case will give the PSP pause in what has become its standard operating procedure to ignore documentation submitted by an unrepresented individual in a PICS Challenge and to force individuals to prove that they are not prohibited, when the burden rests with the PSP to prove that the individual is prohibited.

If your rights have been denied the purchase/transfer of a firearm or your rights violated by the PSP, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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PA College towns are enforcing rental ordinances targeting student disruptive conduct.

As students return for the fall semester in many Pennsylvania universities and colleges, there are traditional welcome back parties. On campus, campus police regulates parties but off campus parties are less controlled and typically louder and wilder events. After several weekends of rowdy wild off campus parties which disturbed neighbors, led to underage drinking, fighting, arrests and saw a number of students taken to hospitals for alcohol consumption, the City of Bethlehem decided to enforce a city rental ordinance that had been on the books for almost twenty years but rarely used.

The city ordinance essential provides that a code enforcement officer may direct a landlord to evict a tenant if the tenant has been cited with three “disruptive conduct” violations within a year. The ordinance defines “disruptive conduct” as any form of conduct that is a violation of existing city ordinances and/or state law where the Police have issued a Citation and the Citation has been successfully prosecuted or a guilty plea entered before a District Justice.

The ordinance is clearly focused on controlling disruptive student behavior and is limited to regulated rental units occupied by three or more non-blood related persons, but no more than five, under the same lease agreement.

Under the ordinance, each lease agreement must include a provision notifying the tenants of the ordinance and the risk of eviction. Most lease agreements already have some provision requiring a tenant to obey all local and state ordinances but those provisions are general focused on the use of the premises in compliance with city zoning ordinances and not the conduct of the tenant.

Bethlehem’s ordinance is based on a similar ordinance from the City of Bloomsburg with was upheld by the U.S. District Courts for the Middle District Of Pennsylvania. In Bloomsburg Landlords Ass’n v. Town Of Bloomsburg, 912 F. Supp. 790 (M.D. Pa 1995), aff’d 96 F.3d 1431 (3rd Cir. 1996), the landlord association filed a complaint contending that the Bloomsburg Ordinance violated the state and federal constitutional rights of its members. The association alleged: 1) violation of their rights under Article I, Section 10(1) [Article I, Section 10(1) provides that no state shall make any law “impairing the obligation of contracts”] and the Fourth, Fifth and Fourteenth Amendments to the United States Constitution under section 1983, 42 U.S.C. § 1983 and 2) violation of their rights under Article 8, Section 1[All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws] of the Pennsylvania Constitution.

In summary, the U.S. District Court held that: 1) the ordinance was not vague or overly broad; 2) the municipality may constitutionally regulate the number of unrelated individuals who may occupy a single family dwelling so long as as the ordinance was rationally related to a legitimate governmental interest, specifically, preventing disturbing conduct; 3) the ordinance was not a violation of the landlords’ substantive due process guarantees under the 5th and 14th amendment as it was rationally related to a legitimate governmental interest; 4) the ordinance was not a taking in violation of the 5th amendment as the ordinance substantially advances a legitimate state interests and does not deny an owner economically viable use of his land; and 5) that the licensing fee requirement of the ordinance was not a tax and not in violation of Pennsylvania’s constitutional prohibition against non-uniform taxes.

The U.S. District Court also rejected the argument that students were a protected class subject to protection from discrimination under the equal protection clause.

Other Pennsylvania cities and municipalities have similar rental ordinances, including State College, Reading, Kutztown, Allentown and Easton. In Easton, where Lafayette College is located, only two violations for disruptive behavior are required before a landlord is directed to evict the tenant.

Neighbors tired of the late noise and disruptive conduct appreciate the rental ordinances. At the same time, landlords who rent to students on a seasonal basis complain that the ordinances are punitive causing loss of revenues in mid lease.

The effectiveness of the ordinances is debatable. College students are not going to stop throwing parties. However, as long as the ordinances are rationally related to protecting the public and eliminating disruptive conduct, the ordinances will continue to be enforced in Pennsylvania.

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A Pennsylvania tenant’s right to recover a security deposit.

Under Pennsylvania’s Landlord and Tenant Act of 1951, 68 P.S. ‘250.101, et. Seq., a landlord may require a security deposit to be held for tenant caused damages and possible past due rent. See 68 P.S. §250.511 and §250.512. A security deposit is not the same as rent. It is money that actually belongs to the tenant, but is held by the landlord for tenant-caused damages and sometimes past-due rent. Without the agreement of the landlord, a security deposit may not legally be used as the last month’s rent.

Pennsylvania law places a limit on the amount of a security deposit that a landlord may require. Under 68 P.S. §250.511a (a), no landlord may require 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 during the first year of any lease. During the second and subsequent years of the lease or during any renewal of the original lease the amount required to be deposited may not exceed one month’s rent. See 68 P.S. §250.511a (b). At the beginning of the second year of a lease the landlord may not keep a security deposit equal to more than one month’s rent and must return any money greater than one month’s rent still being held as a deposit. See 68 P.S. §250.511a (c) After five years the landlord cannot increase a security deposit even if the monthly rent is increased. 68 P.S. §250.511a (d).

Pennsylvania also regulates where residential security deposits must be kept and when interest payments on the security deposits must be made to the tenant. Security deposit monies in excess of $100 and held more than two years must be deposited by the landlord in an approved bank, and the tenant must be notified in writing where the bank and deposit is located. See 68 P.S. §250.511b (a). A landlord is entitled to receive as administrative expenses, a sum equivalent to one per cent per annum upon the security money so deposited, which shall be in lieu of all other administrative and custodial expenses. The balance of the interest paid shall be the money of the tenant making the deposit and will be paid to the tenant annually upon the anniversary date of the commencement of his lease. See 68 P.S. §250.511b (b).

After termination the lease or upon surrender of the lease and acceptance by the landlord of the leasehold premises, a landlord must 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. See 68 P.S. §250.512.

Reasonable wear and tear caused by a tenant’s lawful use of the lead premises is not damages. In 1979, the Pennsylvania Supreme Court officially recognized that an Warranty of Habitability that is implied in every residential lease agreement. Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979). The Supreme Court decided that landlords who rent property for people to live in must make sure such property is “safe, sanitary and fit for human habitation.” A landlord’s obligations under the Warranty of Habitability cannot be taken from a tenant even if you sign a lease that says you are renting the property “as is” or that you are responsible for all repairs.

The warranty implies that the landlord has placed the rented premises in a livable conditions prior to the occupancy by the tenant; or that he will do so within a reasonable time after the occupancy of the demised residence; that the facilities will remain usable during the entire term of the lease and that the landlord will maintain the demised premises in a condition which will render the premises livable. Any repairs made necessary by reasonable wear and tear are the responsibility of the landlord. Derr v. Cangemi, 66 Pa. D & C 2nd 162 (1974).

A landlord is responsible for all normal wear and tear and must bear that cost as part of the implied Warranty of Habitability whenever he leases a property to a tenant. A landlord can not pass on normal wear and tear expenses to a tenant. Deluca v. Matthews, 2015 Pa. Dist & Cnty. Dec. Lexis 14718.

Assuming that there are valid damages, a landlord must refund the security deposit less the cost of the repairs on the list. If the landlord fails to do this, the tenant cannot be sued for any damages the landlord claims the tenant caused. In addition, if the landlord does not give the tenant this 30-day response, the tenant may sue for double the amount of the security deposit. In order to be able to sue for double the deposit, the tenant must give the landlord written notice of his or her new address once the tenant has moved out. See 68 P.S. §250.512.

Under 68 P.S. §250.512 (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.

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Pennsylvania consumers protections under the Fair Credit Extension Uniformity Act

In previous blogs, I have discussed the protections provided consumers under the Federal Fair Debt Collection Practices Act (“FDCPA”). The FDCPA is a powerful deterrence to unscrupulous debt collectors and unlawful debt collection practices. The FDCPA is a comprehensive and reticulated statutory scheme, involving clear definitions, precise requirements, and particularized remedies. The validity of the underlying debt is not relevant or an issue under the FDCPA. There is no exception to liability for violating the FDCPA as a result of fraud on the part of the consumer. As long as the underlying obligation is a “debt” as defined b the FDCPA, the method of collections is irrelevant. The validity of the underlying debt is irrelevant as well.

The FDCPA “provides a remedy for consumers who are subjected to abusive, deceptive, or unfair trade collection practices by debt collectors.” A single violation of the Act triggers statutory liability and remedies. Under the FDCPA, a plaintiff may collect statutory damages even if he has suffered no actual damages. The FDCPA is essentially a strict liability statute, where the degree of the defendant’s culpability is relevant only in computing damages, not in determining liability.

Under the FDCPA, consumers are enforcing the FDCPA essentially acting as private attorney generals. Because consumers are acting as private attorney generals, an award of attorney fees is mandatory in an FDCPA case. That means that the FDCPA is essentially a fee shifting statute. If a consumer can demonstrates that the FDCPA has been violated, the consumer may recover actual damages, statutory, costs and attorney’s fees. The longer the lawsuit goes, the more the consumer can recover in attorney’s fees. The threat of an award of attorney’s fees is a very effective deterrent and leads to mean settlements early in litigation.

The FDCPA is not without its limitations. One of the biggest limitations of the FDCPA is that it only applies to debt collectors as defined by the FDCPA. It does not apply to creditors or assignees of the creditor when the assignment has occurred prior to the consumer’s default on the debt obligation. Attorneys acting as debt collectors are also included in the definition of debt collector under the FDCPA.

Typically when bringing a suit under the FDCPA, a consumer will name the debt collectors, and possible law firm and individual attorney hired by the creditor to collect on the debt for any violations of the FDCPA. However the creditor may not be named under the FDCPA.

From the perspective of obtaining the greatest recovery in a lawsuit, a consumer’s best option is to target the creditor as they usually have the deepest pockets. Under Pennsylvania’s Fair Credit Extension Uniformity Act (“FCEUA”), a consumer may also sue the creditor.

The FCEUA is Pennsylvania’s analogue to the FDCPA and applies to both debt collectors and creditors. A debt collector’s violation of any provision of the FDCPA constitutes a violation of the FCEUA which in turn constitutes a violation of Pennsylvania’s consumer protection law, the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). The FCEUA allows a consumer to sue the original creditor as well as the debt collector for any violations of the FCEUA. The FCEUA protections mirror the FDCPA’s protections.

The FCEUA also has a two year statute of limitations as opposed to the FDCPA’s one year statute of limitations. Finally, as the FCEUA is also a violation of the UTPCPL, a consumer may recover actual damages or statutory damages whichever is greater, costs and reasonable attorney’s fees. Under the UTPCPL, a court may also award treble damages. Again a very effective deterrent which can lead to early settlements.

Any action by a consumer for unlawful debt collection practices must include claims for violations of the FDCPA as well as the FCEUA. It allows the consumer to sue the creditor as well as include older violations.

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Montgomery District Attorney Requested to Investigate and Charge Lower Merion Township for Proposed Firearm Regulation

As our viewers are aware, we became aware on August 30, 2017, that at its upcoming September 19th meeting, Lower Merion Township is considering a new firearm discharge ordinance, even after the Commonwealth Court struck down its current discharge ordinance and held that municipalities may not regulate discharge.

As a result, in a letter sent today, Attorney Joshua Prince formally requested that Montgomery County District Attorney Kevin Steele open an investigation into this matter and file appropriate charges, including for violations of Section 6120 and official oppression.

We hope that District Attorney Steele will take a proactive approach, similar to that of Lancaster County District Attorney Crag Stedman, who recently sent out letters to all law enforcement agencies in Lancaster County advising that municipal regulation of firearms and ammunition is unlawful. Regardless, we would again urge everyone, especially residents and taxpayers in Lower Merion Township, to make the Commissioners aware of your position. The hearing on September 19th will start at 7:30 PM at Township Administration Bldg – 2nd Floor Board Room, 75 East Lancaster Ave, 2nd Floor Board Room Ardmore, Pennsylvania 19003-2323. Their telephone number is 610-649-4000 and you can contact the individual commissioners here.

If your rights have been violated by an illegal firearm or ammunition ordinance or regulation promulgated by a state agency, county, municipality or township, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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Firearms Law Seminar – October 28, 2017 at Trop Gun Shop

On Saturday, October 28, 2017,  Chief Counsel Joshua Prince, Attorney Eric Winter, and Attorney Adam Kraut of Firearms Industry Consulting Group (FICG), a division of Civil Rights Defense Firm, P.C., in conjunction with Trop Gun Shop, will offer a four (4) hour seminar on state and federal firearms law at their store located at  910 North Hanover St, Elizabethtown, PA 17022.

To register, simply register online on Trop’s website. It is highly recommended that you register early, as last time it sold out fast.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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Lower Merion Township Considering Unlawful Firearm Regulation After Losing On The Same Basis – Taxpayers To Be On The Hook!

Today, I became aware that Lower Merion Township is considering a new, unlawful firearm discharge regulation, after having their current discharge provision ruled unlawful by the Commonwealth Court and denied review by the Pennsylvania Supreme Court in Firearm Owners Against Crime, et al. v. Lower Merion Township, 151 A.3d 1172 (Pa. Cmwlth. Ct. 2016) (petition for allocatur denied July 11, 2017).

The new, unlawful proposed ordinance provides, in part:

Section 1. The Code of the Township of Lower Merion, Chapter 109 thereof, entitled Parks and Playgrounds, § 109-16, Firearms; fireworks, shall be amended to provide as follows:

§ 109-16. Discharge of a firearm or bow; dangerous athletic implements; fireworks. Township parks shall be posted to prohibit the discharge of a firearm or bow except where authorized by the Board of Commissioners. The promiscuous use in a park of javelins, discuses or similar athletic equipment dangerous in character is prohibited unless used under the direct supervision of an authorized playground supervisor. The use of firecrackers, fireworks or rockets in a park is prohibited.

The proposal is scheduled be voted on September 19, 2017. Unfortunately, it looks like the taxpayers will further be on the hook, if this ordinance is passed for substantial attorney fees and costs. Although I have not received updated amounts of fees incurred by Lower Merion Township in relation to the FOAC, et al v. Lower Merion Township litigation, as I previously wrote, the insurance company denied coverage, stating:

The POL Coverage Part of the applicable Trust Coverage Document does not provide coverage for the Township in this matter because the plaintiffs are not seeking to recover compensatory damages, but only declaratory and injunctive relief, and because the plaintiffs have alleged in their Complaint that the Township willfully violated 18 Pa. C.S. §6120 and otherwise engaged in willful misconduct in refusing to amend or repeal the allegedly illegal ordinances. The Trust therefore respectfully declines coverage and requests that the Township retain defense counsel at its own expense in this matter.

Accordingly, everyone, especially residents and taxpayers in Lower Merion Township, should make the Commissioners aware of your position. The hearing on September 19th will start at 7:30 PM at Township Administration Bldg – 2nd Floor Board Room, 75 East Lancaster Ave, 2nd Floor Board Room Ardmore, Pennsylvania 19003-2323. Their telephone number is 610-649-4000 and you can contact the individual commissioners here.

If your rights have been violated by an illegal firearm or ammunition ordinance or regulation promulgated by a state agency, county, municipality or township, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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