Well, I think its time I update my private little war with Wilkinsburg code enforcer Jim Frank. Four things have happened since July 21st, or the publication of my last story:
1. I had a less than sedate encounter with Mr. Frank the morning of July 21st where I confronted him and told him that threatening to evict me over a messy lawn (that I don't own as a tenant) was a criminal act. He denied that he ever did it which I could sort of believe if he hadn't told me to my face and on my porch that he was going to "going to getcha out of here." He was even nice enough to explain his tactics: trumped up code violations. He was supposed to walk me through the local ordinance but instead pouted, said "I don't want to talk to you, sniff" and ran away, or walked away as fast as a broken down old white man can move. He's plus 50 at least...
2. After informing Mr. Frank that I was an online writer (with many outlets for publication) on July 21st, and yes his jaw did drop, I received what could only be called a "warning of a possible citation" in the mail Friday, July 23rd. This is not unlike receiving "warning of a possible traffic ticket". The only time they give you warnings is when law enforcement officials are in a charitable mood (rare) or when they're not sure you're actually guilty. Well, being that Jim had already threatened me with eviction (for someone else's messy lawn) let's rule out one. I might also note that this citation had no compliance date and he lied to me again (Or was it incompetence? Probably both...) about how many days I had to appeal this decision to the Board of Appeals.
3. I sent Jim Frank, Wilkinsburg solicitor Pat McGrail and Wilkinsburg Mayor John Thompson a "Formal request for a board hearing on the matter of violation number 627 and the accusation that a renter can be in violation of section 302.4" by way of email and fax. I haven't ruled out mail and personal delivery, either. I'm going to publish the entirety of this request for a formal hearing here.
4. This morning I had a very civil chat with representatives from the Allegheny County District Attorney's office, Mike Ball and Courtney Butterfield. Short verdict: Not enough for a criminal claim, yet. I will try to provide them with more.
I'm going to comment more on 1, 2 and three here. I'm going to save 4 for yet another story.
By the way, if you're going to research your own case law at the state level and you're fighting against the Wilkinsburg code enforcer you want to concentrate your initial efforts in two places.
I looked at the record of WIlkinsburg city ordinance they had at the Wilkinsburg library but those records aren't complete. I was, however, able to find a complete record over at the Wilkinsburg borough website, or here. And yes the Wilkinsburg ordinance does say that a landlord or tenant is responsible for the lawn. But does that reflect the state's landlord tenanct act? No it doesn't. I might also note that its not a very attractive slogan for the city: "Come to Wilkinsburg where we'll sue you for the crimes and misdeeds of your landlord. Because, you know, you're working class and poor and you'll buy anything code enforcer Jim Frank says."
It has to do with the responsibilities of landlords vs. tenants and which group controls "common areas".
You can find a copy of the landlord tenant act here. But what about the case law? Is there a state case where the tenant has been found by either a judge or a jury to be responsible for the landlord's property, absent an express agreement within the original lease? I couldn't find one and I challenged and still challenge Wilkinsburg Solicitor Pat McGrail to find one. You can research Pennsylvania commonwealth court decisions here. Its not as good as Westlaw or Lexis Nexis but its a start.
Here's the formal request I wrote:
Mayor John Thompson
FORMAL REQUEST FOR A BOARD HEARING ON THE MATTER OF VIOLATION NUMBER 627 AND THE ACCUSATION THAT A RENTER CAN BE IN VIOLATION OF SECTION 302.4
First, I believe that this is the appropriate law where I'm allowed a board hearing:
"F-106.9 Application for appeal: Any person shall have the right to appeal a decision of the Code Official to the Board of Appeals. A written application for appeal must be filed within 10 days after the day of the decision, notice, or order was served. An application for appeal shall be based on a claim that the true intent of this code, or the rules legally adopted thereunder, have been incorrectly interpreted, the provisions of this Code do not fully apply, or an equivalent form of construction is to be used."
My anticipated defenses will include but are not limited to:
Defense one: Citation order improperly filled out.
There is no compliance date listed in the two orders that I've received in my mail therefore there is no proper way for me to be in compliance.
Defense two: Bad faith and/or incompetence by Code Enforcer Jim Frank, part one.
Jim Frank gives the wrong time frame for when I can appeal. According to the law that I've found on Wilkinsburg's very own website I have but 10 days to request my board hearing. Yet in both letters sent to me by Mr. Frank he gives me the date as "20 days". Let me guess: if I didn't know that Mr. Frank is a liar and a blackmailer and I had actually taken his word for it (ha) and filed a request for appeal on the 19th or 20th day then I would have been notified, probably sarcastically by Mr.Frank, that my time had run out. (Just for the record: the date on both of the letters I've received is July 21st. This means that I have at least until July 31st to request a board hearing. This is being written on July 26th, well within the deadline.)
Defense three: Extreme Bad faith by Wilkinsburg Code Enforcer Jim Frank, part two.
What Jim leaves out, somewhat inexplicably, is that he threatened to try to evict me if I didn't play ball. He made it very very clear that other code violations would miraculously appear (He even was nice enough to show me how this would work by pointing out that he was pretty sure that a cable going to the upstairs was a violation...) His exact quote in a face to face meeting with me on my porch was "I'm going to getcha out of here." I take that as a threat. In fact, I take that as a criminal threat and severe misuse of Mr. Frank's office that would certainly rise to the level of justly depriving him of both his job and pension.
While I'm not certain of what civil complaints I shall make, I can guarantee you that criminal complaints will be made, probably no later than the end of the business day this Friday. The preliminary claims would seem to include blackmail, extortion, threats, improper influence in public matters and malfeasance.
Defense four: Wilkinsburg code is in open and blatant conflict with the state's .
The landlord tenant act clearly defines the responsibilities of both tenants and landlords. Tenants are not responsible for "common areas" under the state's landlord tenant act. Here is a definition (a common definition actually) of "common areas".
"common area in landlord-tenant law, a common area is shared by all owners of a condominium or cooperative housing unit or owned by the management organization, rather than being owned by an individual owner. Common areas may include recreation facilities, outdoor space, parking, landscaping, fences, elevators, laundry rooms and all other jointly used space."
I believe the key word there is "landscaping". Please don't try to pin this on me. By the way, just as a common sense defense, I'm not responsible for other people's crimes, period.
Defense five: Landscaping not consistent with original lease or with any oral agreement I've made with the owner of this property.
Landscaping and lawn maintenance is nowhere to be found in the original lease that I signed with my landlord. Furthermore, if you can take Mr. Frank's word for it (and you can't) he has expressed the opinion, on the morning of July 21st at the Wilkinsburg public library when I told him that his attempted blackmail of me was a among other things, that I'm now living under an oral contract. Under an oral contract, according to the case analysis I've read, all responsibility falls to the owner, not the tenant. Not a good counterargument. This means that Jim doesn't read the case law for himself or that his comprehension of reading materials is severely limited. Either way Wilkinsburg borough loses.
Defense Six: I have offered smarter and friendlier solutions that don't involve blackmailing me.
In a story published online July 21st I offered these counter proposals. These aren't as much fun as threatening me but they'll solve the problem.
First, there's the perfectly legal one: Wilkinsburg can cut the grass and cite my landlord for the expenses and send her the bill, which is perfectly legal under state law. Yeah I know Jim said he couldn't find her even though I have her email address and phone number but tough luck. This is her property. I'm not liable for that BP spill, either.
Two, Wilkinsburg has a Weed and Seed program. I would have no problem if someone came over and cut stuff and planted pretty flowers, not only in the front, but also the backyard. I'm sure my landlord wouldn't mind, especially if it got her out of yet another fine and citation/arrest warrant. I'll email the coordinator right after having a chat with the DA about the wonderful tactics of Wilkinsburg Code Enforcer Jim Frank...
Three, or the city could just pay me a hundred bucks to cut the lawn twice a summer. (By the way, it would probably cost no more than 100 bucks, each time, to do that. Or I could find somebody through Craigslist. I might note that there have been almost a record number of demolitions in Wilkinsburg over the last three months. Each one costs, I believe, around 13 thousand dollars each at least--I'm guessing this is stimulus money. You would think they would have the money to cut the landlord's lawn...)
By the way, for three, this would be conditional upon the borough, in writing because we just can't believe anything that Jim says, noting that I'm not responsible for landscaping on the property or major repairs that involve the city. I would be doing this out of the goodness of my vast and generous heart.
I look forward to my day in front of the board or in front of an appropriate court of law.
PS: I challenge the Wilkinsburg solicitor to name a single case where a tenant, absent specific direction from a written lease, has been found liable for the upkeep of the landlord's land. I make this challenge not out of hubris but humility because I can't find a single case with a judge or jury where that decision has been reached in a Pennsylvania courtroom. And no people who don't fight back or can't read case law or miss filing deadlines don't count. I hit back.