THE NOTICE OF APPEAL: SO MUCH TO DO AND SO LITTLE TIME TO DO IT!
When a landlord is awarded possession of the leasehold by the Magisterial District Judge, the tenant may appeal to a board of arbitrators, but there are a few things to know.
Landlords and tenants frequently represent themselves in arbitration proceedings, sometimes effectively. However, too often they don’t because the procedure is a mystery to them and there are limits to the ability and inclination of the prothonotary, the judge or the arbitrators to help out a litigant who is trying to plead or prove a case and doesn’t know how to do it. If you must depend upon the kindness of others to guide you along, you may soon be in big trouble.
First, while judgments for damages may be appealed within 30 days, judgments for possession must be appealed within 10 days. This means that, as a practical matter, the tenant is going be appealing both possession and damages in 10 days, since there is no point in filing one appeal in 10 days and another in 30. However, if the tenant discovers that it is too late to appeal an order of possession, or if he is voluntarily relinquishing possession, he could still appeal the damages if the 30 day period has not run.
For the tenant, who is almost always the defendant, starting the appeal process requires filing of a notice of appeal with the prothonotary (Department of Court Records, Civil Division, in Allegheny County), using a short form which the prothonotary provides. He also files a praecipe for a rule on the landlord-appellant to file a complaint within 20 days, also provided by the prothonotary.
If the tenant meets certain financial guidelines, he/she can qualify to file the appeal without paying the filing fees. Once again, the prothonotary supplies forms, and the tenant-appellant goes to the motions judge, obtains an order of court authorizing the filing in forma pauperis and returns the signed order and other paperwork to the prothonotary.
However, there is one more hurdle for the tenant-appellant to jump. In order to obtain a writ of supersedeas from the order below granting possession, the tenant must agree to place each month’s rent in escrow with the prothonotary as it accrues on a specified date. If the tenant-appellant fails to pay the rent into escrow, the prothonotary revokes the writ of supersedeas and sends a notice authorizing the landlord to proceed under the writ of possession issued by the Magisterial District Judge.
So the tenant gets an opportunity to convince a board of three arbitrators not to grant possession to the landlord, but he/she gets it at a price. He/she must pay rent each month until the hearing and the rent will be available to the landlord to defray the part of the judgment for rent that accrues while waiting for the arbitration hearing.
Once all of this has been accomplished, it is the landlord’s turn.
A WELL DRAFTED COMPLAINT IS MORE THAN A WORK OF LITERATURE, IT IS OFTEN A NECESSITY.
The Landlord is now faced with the task of drafting a complaint. Many self-represented landlords think that this involves merely restating the averments in the complaint before the Magisterial District Judge. The prothonotary has provided a handy form which seems to cover everything. In a simple case, it may. But even in a simple case, things may turn out not to be so simple.
At a minimum, a written lease must be attached to the complaint. Any other writings, such as notices of default, upon which the claim relies, must be attached as well.
The landlord can probably get past the prothonotary by filing a very rudimentary complaint. And he/she may even win the case with one. But if the landlord is unlucky enough to have a tenant that qualifies for Neighborhood Legal Services in Allegheny County or the equivalent in other counties, or hires a lawyer who knows more than the basics about landlord-tenant law, the landlord-plaintiff could be in for a rude surprise.
Instead of immediately filing an answer, the defendant may file preliminary objections. Suddenly, the self-represented plaintiff finds him/herself being required to appear before a judge (in Allegheny County it will be Judge Wettick) to defend the complaint from legal arguments he/she doesn’t even understand. Time to hire a lawyer — pronto!
The truth is, the form complaint provided by the prothonotary is not satisfactory to cover the facts of a reasonably complex case and if a plaintiff has one of those, he should hire a lawyer to draft a proper complaint. This lawyer may ultimate pay for him/herself by finding claims the plaintiff has overlooked. For example, does the lease authorize the landlord to collect attorney’s fees?
ANSWER, NEW MATTER, COUNTERCLAIM
Once the complaint is filed and served, the ball is back in the defendant’s court. At minimum, the numbered allegations in the complaint must be answered with specificity within 20 days. Failure to do so could result in default judgment being entered — another complete topic too broad to discuss here. However, the defendant may wish to say more than a response to the individual allegations of the complaint. There may be defenses that involve other facts. For example, the lease might contain provisions not mentioned in the complaint which provide a defense or mitigation to the tenant.
But most important, the tenant-defendant may have claims against the landlord-plaintiff. This could take many forms. The premises may have not been habitable during all or a portion of the lease term — perhaps due to a non-functioning furnace or broken pipes, toxic mold, roach infestation. Again, this could be a topic for another complete post — strike that — a dozen posts.
Once again, the mechanics of pleading and proving a counterclaim may be beyond the capabilities of many, maybe most, defendants. There are rules to follow and we’ve already discussed what might happen when a litigant doesn’t know how to follow the rules. If you want to make a counterclaim and can afford to pay a reasonable fee, hire a lawyer.
The Plaintiff must file a reply to new matter and answer the counterclaim. Failure to do so may, quite frankly, lose the case. For example, if the new matter states that the plaintiff did not give mandatory notices and the plaintiff does not reply, the plaintiff will be bound by the statements of fact in the new matter. Thus, even though the plaintiff is prepared to present proof that notices were given, the defendant’s lawyer can successfully object to proof of facts contrary to the unanswered averments and prevent the plaintiff, at least temporarily, from regaining possession.