Category Archives: Consumer Advocacy

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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When the Lights Go Out – Black Sky Power Outage Mass Event – Preparedness

What would you do if you didn’t have power for an extended period of time? For one week? For one month? For six months? “EARTH EX” is designed to help you think through this scenario and increase your preparedness.

Leadership and staff from the Pennsylvania Public Utility Commission (PUC), Pennsylvania Emergency Management Agency (PEMA) and Pennsylvania Governor’s Office of Homeland Security today, August 23, 2017, joined with government agencies, utilities, emergency responders and other stakeholders around the world in a first-ever transnational exercise to test responses to a large-scale power outage event.

Today’s Pennsylvania involvement in EARTH EX 2017 is part of a continuing collaboration of public and private sector leaders to strengthen the state’s effort to prepare for “Black Sky” events – defined as extraordinary, wide-reaching events capable of producing power outages that last significantly longer than typical weather or operational outages.

Because of the large-scale nature of Black Sky events, they have the potential to impact not only electricity, but also other critical systems, such as natural gas, water, wastewater treatment, telecommunications and transportation services. These events could be caused by a cyber-attack on the electric grid, severe weather or physical attacks.

“Black Sky events have the potential to disrupt essential services across large areas, impacting the lives of millions of people,” said PUC Chairman Gladys M. Brown. “It is essential that we work collectively to address these threats, because it will require the work of government, private sector and not-for-profit organizations to better safeguard our critical systems, strengthen our response and enhance our ability to recover from Black Sky events.”

“This exercise gives us the opportunity to work with our partners in preparedness, response and recovery to identify ways we can work together more efficiently and effectively in the event of a Black Sky incident,” said PEMA Director Richard D. Flinn, Jr.

“Planning exercises like EARTH EX are a critical part of developing an effective, coordinated response to a Black Sky event,” said Marcus L. Brown, director of Pennsylvania’s Office of Homeland Security. “The lessons learned will help all of the participants prepare for, and recover from, a catastrophic disruption of electricity and other essential services.”

Pennsylvania’s first Black Sky exercise – one of the first in the country – was held in June 2016, hosted by the PUC and Gov. Tom Wolf. Since that time, the PUC, PEMA and the Governor’s Office of Homeland Security have continued to integrate Black Sky planning and practice into broader discussions about emergency response planning.

Today’s EARTH EX exercise, developed by the Electric Infrastructure Security Council (EIS Council), is the first phase of a nearly year-long series of international exercises intended to develop, test and enhance planning and preparation for Black Sky events. EIS Council hosts national and international collaborations on resilience and whole community restoration and response planning, addressing severe, national and global scale hazards to lifeline infrastructures.

If you or your business have legal questions or concerns regarding disaster preparedness, computer law, privacy, or cybersecurity law matters, contact attorney Jeffrey A. Franklin at Prince Law Offices. Learn more about preparedness at EARTH EX 2017.  Tell us how you are preparing in the comments.

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Stick with Security – Part 1

stick_with_security_1When it comes to data security, what’s reasonable will depend on the size and nature of your business and the kind of data you deal with. But certain principles apply across the board: Don’t collect sensitive information you don’t need. Protect the information you maintain. And train your staff to carry out your policies.

The FTC’s Start with Security initiative was built on those fundamentals. Some helpful tips follow.

DON’T COLLECT PERSONAL INFORMATION YOU DON’T NEED.

It’s a simple proposition: If you don’t ask for sensitive data in the first place, you won’t have to take steps to protect it. Of course, there will be data you must maintain, but the old habit of collecting confidential information “just because” doesn’t hold water in the cyber era. Continue reading

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Stick with Security: FTC Providing Insights on Data Security Practices

ftc_logo_430As part of its ongoing efforts to help businesses ensure they are taking reasonable steps to protect and secure consumer data, the Federal Trade Commission (FTC) is publishing a series of blog posts using hypothetical examples based on lessons from closed investigations, FTC law enforcement actions, and questions from businesses. These new posts will build on the FTC’s Start with Security guide for businesses.

FTC Acting Chairman Maureen K. Ohlhausen pledged earlier this year to be more transparent about the lessons learned from the FTC’s closed data security investigations and to provide additional information for businesses about practices that contribute to reasonable data security, culminating in this “Stick with Security” Initiative.

In the first blog post published July 21, 2017, the FTC highlights some of the themes that have emerged from an examination of closed FTC data security investigations. For example, while news reports might call attention to a data breach, they might not focus on the fact that the company that suffered the breach had encrypted the data, which substantially reduces the risk of consumer injury (and legal liability). Another lesson gleaned is that security researchers’ valuable work can alert us to new vulnerabilities, but sometimes the risk of a vulnerability being exploited to cause consumer injury is more theoretical than likely. Another key lesson is that in almost every closed case, the entities involved used the same common-sense security fundamentals outlined in the FTC’s Start with Security guide for businesses.

If you or your business have questions or concerns regarding fraud, computer law, privacy, or cybersecurity law matters, contact attorney Jeffrey A. Franklin at Prince Law Offices.

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FTC Cybersecurity Roundtables with Small Businesses

The Federal Trade Commission (FTC) is hosting small business owners in a series of public roundtables across the United States to discuss the most pressing challenges small businesses face in protecting the security of their computers and networks.

Engage, connect, protect - small business & data security roundtablesThe Engage, Connect, and Protect Initiative: Small Business and Data Security Roundtables are part of an ongoing initiative by Acting FTC Chairman Maureen K. Ohlhausen aimed at helping small businesses, which included the launch of a new website in May focused on helping small business owners avoid scams and protect their computers and networks from cyberattacks. There are more than 28 million small businesses nationwide, employing nearly 57 million people, according to the Small Business Administration (SBA).

“The FTC has been a leader in guiding businesses of all sizes on how to protect the data in their care,” Acting Chairman Ohlhausen said. “Companies with only a few employees face unique challenges when it comes to cybersecurity. We’ll use what we learn in the roundtables to tailor our practical resource materials for small businesses.”

The first roundtable event will take place July 25 in Portland, Oregon, in partnership with the National Cyber Security Alliance (NCSA), the SBA, and other organizations. This event will be followed by a roundtable discussion in Cleveland, Ohio, on September 6, hosted by the FTC and the Council of Smaller Enterprises and in collaboration with the SBA. Another roundtable event will take place later in September in Des Moines, Iowa, sponsored by the NCSA.

The roundtables will bring together FTC staff along with the SBA and other federal partners, industry associations, and the small business community. The comments and feedback generated by the roundtables will be used to help the FTC and its partners provide additional education and guidance for small business owners on cybersecurity issues.

If you or your business have questions or concerns regarding fraud, computer law, privacy, or cybersecurity law matters, contact attorney Jeffrey A. Franklin at Prince Law Offices.

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Central PA Residents & Businesses Switching to 10-Digit Dialing in ‘717’ Area Code in August

puc_sealThe Pennsylvania Public Utility Commission (PUC) today reminded residents and businesses across Central Pennsylvania served by the 717 area code of the upcoming switch to 10-digit dialing for all local calls – in preparation for the activation of a new “overlay” area code, which will serve the entire region.

According to the implementation schedule for the “223” overlay area code, mandatory 10-digit dialing for all local calls will begin on Aug. 26, 2017. Starting on that date, if callers only dial a seven-digit number, they will reach a recorded announcement instructing them to hang up and redial the number using the area code plus the seven-digit number.

For the past several months, telephone callers in the 16-county 717 service area have been encouraged to voluntarily use 10-digit dialing (717 + the full local telephone number). The new 223 overlay area was approved based on forecasts that the remaining supply of available telephone numbers in the 717 area code was close to exhaustion.

According to Neustar, Inc., the neutral third party area code relief planner for Pennsylvania, the dialing plan for the 717/223 area code is as follows:

  • Local & Toll calls from the 717/223 area to other numbers inside the 717/223 area:
    Dial 10-digits (717 or 223 + XXX-XXXX)
  • Local & Toll Calls from the 717/223 area to numbers in another area code:
    Dial 1 + 10-Digits (1 + XXX-XXX-XXXX)
  • Operator Services (Credit card, collect, third party):
    Dial 0 + 10-digit (0 + XXX-XXX-XXXX)

The PUC’s Order approving the overlay plan specifies that any new numbers for the 223 overlay area code shall not be released until Sept. 26, 2017, and that requests for numbers in the 717 area code will continue to be honored as long as resources are available.

To learn how Prince Law Offices, P.C. can assist you or your business with telecommunications law and PUC matters, contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C.

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