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This post is an update to my July 2018 post in which I discussed Philadelphia’s Landlord-Tenant Lead Laws. Previously, a landlord was required to obtain a “lead safe” or “lead free” certificate only for a residential unit where a child aged six or under would reside. However, beginning in October 2020, the city has phased in a requirement that all residential landlords, with very limited exceptions, obtain a lead safe or lead free certificate in order to execute a new or renewed lease, or obtain a new or renewed rental license. Back in 2018, I wrote the following: “Although this certification is only required for units where kids ages six and under will reside, it’s a good idea for all landlords to obtain this certification…. It’s hard to overstate the importance of strict compliance with all these certifications.” This is even more true now that the lead law applies to virtually all residential tenancies. More information on the phase-in of the new law can be found here, and the city provides written resources on compliance here. The preliminary hearing is a crucial step in a criminal case in Pennsylvania. Before the preliminary hearing, the police and district attorney are in control of the case. They decide whether and when to file charges, and also which charges to file. The preliminary hearing is the first chance to hear more about the case in open court and begin to mount a defense. As a general rule, I don’t advise clients to waive the preliminary hearing. Even if you know the case will be held over for court, the preliminary hearing is an opportunity to learn more about the case and specifically about the witness or witnesses. For example, is a witness’s testimony consistent with the allegations in the affidavit of probable cause? Does a witness appear honest and trustworthy on the stand, or do they appear to be telling something less than the whole truth? And is the prosecution willing to concede certain aspects of the case that strengthen your defense? Consider a case where a gun is found under the seat in a car, and the driver is charged with Violation of the Uniform Firearms Act (VUFA) offenses. I might ask the arresting officer questions such as:
There are certain limited circumstances where you might consider waiving a preliminary hearing. For example, the district attorney might agree to withdraw some charges in exchange for a waiver of the preliminary hearing. Depending on the charges and the strength of your case, that’s an offer worth considering. In addition, if you plan to apply for Accelerated Rehabilitative Disposition (ARD) in one of the counties outside Philadelphia, the standard procedure is to waive the preliminary hearing in exchange for ARD consideration. Should you waive the preliminary hearing? It’s an important decision, and you shouldn’t make it without an experienced lawyer on your side. “Can I get ARD?” It’s a question that I hear often in Philadelphia. If you’re charged with a crime and you have an otherwise clean record, you may qualify for ARD. ARD stands for Accelerated Rehabilitative Disposition. As its name suggests, the primary purpose of the program is rehabilitation - it offers you a fresh start after completion of a probationary program. If you successfully complete ARD, the charges are dismissed and the case may qualify for automatic expungement.
ARD is available in summary matters, as well as many misdemeanor and some felony cases. The way it works right now in Philadelphia (April 2020), people facing misdemeanor charges (those listed for a Municipal Court trial) can apply for ARD right away. If there are felony charges, the case first must go through a preliminary hearing before an ARD application. This is a different procedure than in some of the counties around Philadelphia - in the counties, you’ll often be asked to waive the preliminary hearing in exchange for ARD consideration. If accepted into ARD, you’ll have to pay the costs of the program, which are generally under $500.00 but could be more in certain circumstances. You’ll also have to pay restitution, if any. In most cases, the court will impose a term of probation, but there will be no guilty plea and no conviction. If you’re concerned about probation, your attorney can request that you report by phone if there’s a good reason for it - for example, if you can show you’re working during the time you would otherwise have to report. If you successfully complete ARD, prosecution is withdrawn and the charges are dismissed. Charges will be expunged automatically within a few months of successful completion. (See Pa. R.Crim.P. 320). However, automatic expungement will not happen unless all court costs and other charges are paid in full. What happens if your ARD application is denied? Your attorney can request reconsideration. It’s not considered an appeal per se, but your attorney should learn as much as possible about your circumstances and put together a written submission with reasons why your case should be accepted. Is ARD worth it? Most of the time, it's definitely worth it, even with the costs and term of probation. That’s because there are great benefits to having a clean record as opposed to even one criminal conviction. But what if you can beat the case - shouldn’t you fight it? That’s a situation to discuss with your attorney, after weighing all the risks and benefits of each option. You can find more information on ARD under chapter three of the Pennsylvania Rules of Criminal Procedure, Rules 300 to 320. Call me at 215-242-9000, and we’ll set up a time to discuss whether ARD will work for you. Almost all residential landlord-tenant cases are heard initially in the Philadelphia Municipal Court, or outside Philadelphia in the local Magisterial District Court. After trial, both landlord and tenant have the right to a de novo appeal to the Court of Common Pleas. “De novo” is a Latin term meaning “of new” or “anew,” which means that the case starts from the beginning with no consideration of the outcome in the first proceeding. However, there is an important exception to the de novo rule: if the trial judge found in favor of the landlord, the landlord retains a judgment of possession and can proceed with eviction while the appeal is pending.
If the landlord has a judgment for possession, the tenant must apply for a stay of eviction, called a supersedeas, in order to stop the eviction while the appeal is underway. Supersedeas is another Latin term meaning “you shall desist.” In Philadelphia, supersedeas is governed by Local Rule 1008. In order to obtain a stay, the tenant must post the amount of rent actually in arrears at the time of appeal or the equivalent of three months’ rent, whichever is less. Most tenants are unable to meet this requirement: if they were able to pay, they most likely would have done so before the original proceeding. But once again, there is an exception: Local Rule 1008(d) allows low-income tenants to obtain a stay of eviction if they pay just one-third of the monthly rent into escrow with the court at the time they file an appeal. Read this carefully: the rule requires just one-third (⅓) of one month’s rent, not one-third of the total amount due. The tenant must then deposit two-thirds (⅔) of the monthly rent within 20 days of filing the appeal, and an additional deposit of one month’s rent each 30 days after filing the appeal. Let’s consider an example of how this works. Say a landlord obtains judgment for possession against a tenant who owes three months of rent. The rent is $1,000 per month; to keep this simple, we’ll eliminate costs and fees and say the judgment amount is an even $3,000. Under the regular rule, the tenant must post the entire $3,000.00 to obtain a stay. But under subsection (d), the tenant can obtain a stay by paying only $333 - leaving the landlord $2,667 short! The rules are similar in the counties surrounding Philadelphia, although in my experience the county courts are somewhat more strict in granting IFP (in forma pauperis, or low-income) status. Tenants often make procedural errors with supersedeas payments, so it’s important to check the docket and ensure strict compliance with all deadlines. If the tenant pays late, the landlord can ask the court to lift the stay and proceed with eviction - but it won’t happen automatically. That's one reason it's a good idea to retain an experienced attorney to resolve the situation. The Pennsylvania Supreme Court answered that question last week in Rufo v. City of Philadelphia, when it ruled that the Department of Licenses and Inspections (L&I) could require the owner of a vacant property in Philadelphia to install windows and doors rather than board up or otherwise seal the property. The case turned on the constitutionality of a provision in the Philadelphia Property Maintenance Code that applies to any vacant property deemed to be a “blighting influence." (See Phila. Code, Sections PM-202 and PM-901.2. Note that the current version of the Code uses the term "blighting problem," but the definition remains the same.) The owner stated that he had previously installed windows at the property in question, the former Gretz Brewery at 1524 Germantown Ave., but said the windows were broken by vandals within a few days of installation. The owner argued that the “blighting influence” provision was focused solely on aesthetics rather than public safety, and was therefore an unconstitutional exercise of the City’s authority. The City argued that the lack of real windows and doors on a property has a “significant adverse effect on the community,” and cited multiple studies that it used to craft its definition of blighting influence. The Pennsylvania Supreme Court sided with the City, finding that the City fairly explained the basis for enactment of the ordinance, while the owner “failed to offer any evidence or persuasive argument to overcome the presumed constitutionality” of the ordinance in question. You can read the full opinion here. The takeaway? It’s getting harder to speculate in the city. From experience, I can sympathize with the owner’s argument: he’d make some cosmetic improvements to the building, only to see it vandalized soon thereafter. But in 2018, with a vibrant and growing city, that’s more an argument for why the property should not sit vacant rather than an argument for boarding or sealing it. Rehabilitation and redevelopment are the order of the day, and anyone who buys real estate in the city should plan accordingly. Welcome to my second post on the legal requirements for residential rental properties in the City of Philadelphia. Part one is below and at this link. In this post, I’ll focus on compliance with Philadelphia’s Lead Laws.
Lead Certification - This certification is required for residential rental units in Philadelphia built prior to 1978 where children age six or under will reside. Those properties - referred to as “targeted housing” under the law - must be certified as either lead-free or lead-safe by a licensed inspector or certified technician. Some properties, including those owned or subsidized by the Philadelphia Housing Authority, are exempt from the law. The lead law requires the landlord to obtain a “lead safe” certificate, present it to the tenant, and have the tenant sign it. The landlord must then send a copy of the signed certificate to the Philadelphia Department of Public Health. The city recently expanded the law to include lead water service lines and plumbing components, but as of July 2018, no additional information or resources on the lead water amendments are available from the city. The city code states that a landlord who is not in compliance with the Lead Law cannot collect rent or evict a tenant. In addition, the lead law gives a tenant the power to sue a landlord to return any rent previously paid to the landlord during any period where the landlord did not have a valid lead certification. Some thoughts on compliance with this law: Although this certification is only required for units where kids ages six and under will reside, it’s a good idea for all landlords to obtain this certification. First of all, a tenant could become pregnant or adopt a child, and the landlord may not know. A tenant could also have children who visit periodically, or whose temporary visit turns into an indefinite stay. A well-drafted lease will list all occupants and their ages, but it’s risky to rely solely on the lease - even if the lease does not list any children, the landlord-tenant court may consider testimony from a tenant about their changing living situation. If the property has been certified, this will not be an issue. It’s hard to overstate the importance of strict compliance with all these certifications. A landlord who doesn’t have a valid Rental License or Certificate of Rental Suitability can’t evict a tenant for any reason, whether nonpayment of rent, termination of term, or breach of lease. A landlord who has not complied with the lead law can’t evict a tenant, and can also be sued by the tenant for a refund of rent already paid. Don’t take chances with the lead law. Compliance is inexpensive, but a civil judgment could cost thousands. Landlords and tenants often need help navigating Philadelphia’s complex landlord-tenant laws. This is part one of a two-part series on the legal requirements for residential rental properties in the City of Philadelphia. I’ve tried to make this confusing area of the law easy to understand without oversimplifying or leaving out important details. If it still seems tough to follow, that’s because it’s hard to navigate the system without an experienced attorney on your side.
Residential landlords in Philadelphia must obtain the following licenses or certificates in the order outlined below. 1. Commercial Activity License (formerly known as Business Privilege License). This license is required for anyone operating a business in Philadelphia, whether they’re a corporation or individual. This license is free and easy to obtain by clicking here. 2. Rental License (also known as Housing Inspection License). According to the Philadelphia City Code, a landlord cannot collect rent during any period when he or he does not have a valid Rental License. Similarly, a landlord cannot obtain a judgment for possession without a valid Rental License. In fact, Philadelphia Municipal Court won’t accept an eviction complaint unless a copy of a valid Rental License is attached. You’ll need your Commercial Activity License number when applying for the Rental License. As of 2018, a Rental License costs $55 per unit. You can obtain one here. 3. Certificate of Rental Suitability. A Certificate of Rental Suitability requires the landlord to certify three things: that there are no open code violations on the rental unit; that the rental unit has the required fire protection and smoke detection equipment; and that the landlord has provided the tenant with the City’s Partners for Good Housing handbook. A landlord cannot collect rent or obtain a judgment of possession for any period of time before a Certificate of Rental Suitability is issued. The Certificate of Rental Suitability is free and can be obtained here, and the Partners for Good Housing Handbook is available here. As you can see, Philadelphia landlord-tenant laws are much more complicated than landlord-tenant laws in Montgomery, Delaware, Bucks, and Chester Counties. Check back for part two of my Philadelphia Landlord-Tenant Compliance Guide, where I’ll discuss the complexities of Philadelphia’s landlord-tenant lead disclosure law and the recent changes enacted in 2017. Earlier this year, I published an article in the Camden County, NJ Barrister in which I argued for clarification of the standard for guilty plea withdrawals. The article focuses on New Jersey law, although the standard is similar in Pennsylvania. The article is reprinted in full below.
Textual Tension and the Retraction Trap The NJ Supreme Court should clarify State v. Slater & the standard for guilty plea retraction It’s an all too common scenario for defense counsel: after a series of discussions with your client and negotiations with the prosecutor, you reach a plea agreement. You reduce the agreement to writing using the standard five-page form, review each question on the form with your client, and place the plea on the record in open court. Then, sometime before sentencing – or maybe on the date of sentencing – your client has a change of heart. Your client now wants to go to trial, or maybe wants a better deal. What’s the standard for withdrawing a guilty plea? Must the client simply show a good faith reason for wanting to withdraw, or must he or she show something much more? Plea withdrawals in New Jersey are controlled by the state Supreme Court’s opinion in State v. Slater, 198 N.J. 145 (2009). In Slater, two police officers wanted to question a man named Hass in connection with a string of burglaries. An informant told them that Hass, along with another man, Neider, might be found in a certain room at the Millville Motor Inn. The informant provided a description of the men and said that they likely had a small amount of cocaine with them in the room. The officers went to the motel room, knocked on the door, and Slater answered. Slater did not fit the informant’s description, and he appeared to be alone in the room. The officers asked if they could come in, and Slater agreed to let them enter. Again with Slater’s permission, the officers checked the room for other people, found no one, but did see marijuana in a partially open drawer. The officers then arrested Slater, opened the drawer further, and found 15 grams of crack cocaine and a digital scale. Slater was indicted and charged with three drug offenses. He moved to suppress the evidence, and after suppression was denied, he reached a plea agreement with the state. During his plea colloquy, Slater acknowledged on the record that he understood the terms of the plea; waived his right to a trial; had not been forced or threatened to enter the plea; had not been promised anything else regarding the agreement; and was not under the influence of drugs or alcohol. He then provided a factual basis for the plea in which he admitted that at the time of his arrest, he was in possession of a certain quantity of cocaine and was “going to sell or share some or a portion of that cocaine.” Id. at 152. Twelve days later, Slater filed a pro se motion to withdraw his guilty plea. He attached a handwritten certification in which he stated that he “had no control over the drugs that was found in motel room [, and] therefore I should not be punished.” Id. Slater’s presentence report, dated two weeks after his pro se motion, said that Slater repeatedly told police that the motel room was rented by his brother-in-law, named Fowler, and that Slater was just visiting the room. The PSR further stated that Slater denied culpability for the offense, and that his sister’s boyfriend had brought him to the motel room “to chill.” Slater said that neither the cocaine nor marijuana belonged to him and that he wanted to retract his plea. At sentencing, Slater told the trial court that he was only visiting the motel room and that the drugs were not his. He said he accepted the plea only because he had served so much time in jail that he thought he would be released soon after his plea. “And that’s the only reason I did it. ‘Cause I’m not guilty,” Slater said. Id. at 153. The trial court found that Slater had simply changed his mind about the plea and lacked a sufficient basis for withdrawal. The Appellate Division affirmed, agreeing that a “change of mind” provided no basis to withdraw a guilty plea. The Supreme Court reversed, holding that Slater had asserted sufficient reasons to withdraw his plea. The Court first noted that guilty plea withdrawals are governed by the New Jersey Court Rules. Before sentencing, plea withdrawal applications are controlled by Rule 3:9-3(e), which provides that a trial court may grant a motion to withdraw “in the interests of justice.” Postsentencing motions to withdraw face a higher standard under Rule 3:21-1, which states that motions may be granted to correct a “manifest injustice.” The Court stated that trial courts should exercise their discretion liberally to allow pre-sentencing plea withdrawals. The burden rests on the defendant “to present some plausible basis for his request, and his good faith in asserting a defense on the merits.” Id. at 156, quoting State v. Smullen, 118 N.J. 408, 416 (1990). The Court noted that while defendants must show more than a change of mind, the inquiry cannot end there, since all withdrawal motions by definition entail some change of mind. At this point, we can see that Slater presented a plausible basis for his request, as well as a good faith defense on the merits: he would argue at trial that he was simply visiting the room, which was not registered to him, and he had no knowledge of what was in the room. Whether or not this is the strongest case for the defense, it certainly meets the plausible basis/good faith standard set out by the Court. However, the Court did not stop with the plausible basis/good faith standard, but rather went on to establish four factors that trial courts should use to evaluate plea withdrawal motions: (1) Has the defendant asserted a colorable claim of innocence? (2) What are the nature and strength of the defendant’s reasons for withdrawal? (3) Was the plea entered as part of a plea bargain? and (4) Would withdrawal of the plea result in unfair prejudice to the State or unfair advantage to the accused? The Court applied these factors to Slater’s case and held that he should be allowed to withdraw his plea. Despite the fact that Slater was the sole occupant of a motel room with drugs in plain view, the Court found that he had alleged facts sufficient to support an assertion of innocence. The Court further found that Slater’s attorney did not well advise him of his possible defenses – for example, that police received a tip that they would find two males who did not fit Slater’s description, and that the room apparently was not registered to Slater. The problem lies with the phrase “colorable claim of innocence.” Certainly, some defendants are innocent of the crimes charged. But by using the term “innocence,” the Court created a nearly insurmountable barrier. While Slater was successful in his motion, in most cases it is almost impossible for a defendant to withdraw his or her guilty plea, so long as the plea was knowing and voluntary and supported by a factual basis on the record. In applying the Slater factors, trial courts often focus on “innocence” – a very high standard, higher than any other in our criminal justice system – rather than the “colorable claim” in the first Slater factor. The Supreme Court should address the tension in the Slater language and clarify whether trial courts should evaluate plea retractions according to a plausible basis/good faith/colorable claim standard, which would make retractions more common, or the innocence standard, which makes retractions exceptionally rare. At present in our courts, the latter is the norm. Whichever the Court intends, it should clarify the standard for practitioners and judges alike. © 2017 William R. McLaughlin, Esq. Reprinted with permission from the Camden County Bar Association. Published by the Camden County Bar Association VOL. 65, No. 7 • March 2017 I often handle cases involving possession of real property. In a standard case, a property owner contacts me to remove a tenant who has failed to pay rent or otherwise breached a lease. In most cases, this is straightforward: I draft and file the appropriate complaint for eviction in District Court or Municipal Court (in Pennsylvania) or the Special Civil Part (in New Jersey). But once in a while, what the owner thought was a simple landlord-tenant case turns out to be something more complicated. Here’s an overview of the difference between eviction and ejectment -- the two basic types of disputes over possession of real property.
In order to proceed in landlord-tenant court, there must be a landlord-tenant relationship between the parties. In most cases, this relationship is memorialized by a written lease. But what if there’s no written lease? The parties still may be landlord and tenant. For example, in a situation with no written lease, look to see if periodic rent has been agreed upon and paid. How much is the rent? Is it payable monthly, weekly, yearly, or at some other regular interval? Has the tenant ever paid it? Are there other indicia of a landlord-tenant relationship? If rent has not been reserved and paid, or if the parties cannot agree on this basic fact, it’s possible the parties are not landlord and tenant, and therefore the case cannot be heard in landlord-tenant court. What then?
The downside for an ejectment plaintiff is that the matter is heard in the regular trial court: the Court of Common Pleas in Pennsylvania or the Superior Court, Law Division in New Jersey. This requires more time and effort and, unlike filing in the user-friendly landlord-tenant courts, it often requires the assistance of a qualified and experienced attorney. Do you have questions about the difference between eviction and ejectment in Pennsylvania or New Jersey? Call for an appointment so we can discuss the facts of your individual case. Philadelphia Municipal Court has a number of diversionary programs available to people charged with certain non-violent misdemeanors such as buying or possessing drugs. One such program is the Accelerated Misdemeanor Program, commonly known as AMP.
AMP is divided into two tiers, AMP 1 and AMP 2. AMP 1 offers participants an opportunity to have their case dismissed if they complete community service and pay a fine (slightly over $200) within a certain period of time. A big advantage of AMP 1 is that the defendant is not required to enter a guilty plea – the case is kept active for status hearings, but the defendant is not required to plead guilty. Once the program is complete, the prosecution is withdrawn and the participant can have the charge expunged. With certain exceptions, AMP 1 is only offered to people with no criminal record or a very limited record. AMP 2 may be an option for someone who has a criminal record limited to non-violent offenses. The program may also be offered to someone who has a substance abuse problem. AMP 2 requires a plea of guilty or no contest, and participants are required to pay a fine and complete community service or substance abuse treatment. The primary benefit of AMP 2 is that successful participants do not have to serve a term of reporting probation – once the AMP 2 requirements are satisfied, the matter is marked complete and no additional reporting is required. Depending on the person’s criminal history, certain AMP 2 cases are eligible for expungement. AMP cases are not heard in the Criminal Justice Center. Instead, they are handled in courtrooms in certain local police stations, such as the 8th District at Academy and Red Lion; 18th District at 55th and Pine; 24th District at 3901 Whitaker Ave.; and the 35th District at Broad and Champlost. Who is eligible for AMP? The District Attorney’s Office makes the initial decision. However, as with any diversionary program, certain eligible defendants will slip through the cracks. If you believe you should be eligible but you have not been offered admission to AMP 1 or AMP 2, ask an experienced lawyer if there is a way to gain admission. What if you violate the terms of AMP? That depends on the nature of the violation. If it’s simply a matter of more time to complete community service or drug and alcohol treatment, participants will often get an extension. But if a participant is arrested on a new charge, the D.A. will almost always try to remove him or her from AMP. If no plea has been entered, the case goes back on the regular trial list. If the person has already pleaded guilty or no contest, he or she may face sentencing on the underlying charge. Is AMP right for you? For someone with little or no criminal history, AMP 1 can be a great option – it’s a way to have the case dismissed and expunged from your record without going to trial. For a person with a drug or alcohol problem, AMP 2 can provide substance abuse treatment while possibly avoiding a guilty plea (depending on the circumstances). On the other hand, you should not accept AMP if you want to fight the charges. As in any other case, there may be strong options available to the defense, such as a suppression motion and the opportunity to cross-examine prosecution witnesses. Anyone charged with a misdemeanor offense in Philadelphia should discuss these options with an experienced defense attorney before making a decision. |
AuthorWilliam R. McLaughlin, Esq. 
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