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Topic Options
#872973 - 05/08/02 10:55 PM A Request
Dwain Lee Offline
2000 Post Club Member

Registered: 05/25/01
Posts: 2419
Loc: Columbus, Ohio
Some of you know a bit about some things going on in my personal/professional life that have been causing me great concern. Many others may have read little snippets of information & known something was up, but not exactly what. For those of you who don't know, I will explain, as briefly as I can.

My firm designed a project for a client a few years ago. During construction of the project, there were many delays that cost the owner a substantial amount of lost income. Before the project was completed, the contractor was fired for breach of contract, and the work was completed by others. The owner and contractor have been locked in a legal dispute, both with substantial claims against each other, each claiming the other was the reason for the delays and financial losses. Due to their contractual obligations, this dispute must utilize arbitration for resolution (versus litigation). The arbitration process has dragged on, until finally the case will be heard next week, three years after the project was completed.

As the architect, I was in contract to the owner, and under the standard contractual obligations, provided services as his representative. Only in the event of a formal dispute am I to take off that hat titled "owner's representative," and put on the hat of impartiality and render a written decision that (hopefully) keeps a dispute from going to arbitration. Once any such impartial judgment is rendered, I am then to return to my duties as the owner's representative. Indeed, I was called upon to act under these contractual requirements on this project.

Under Ohio law (and that of many, if not most, states), because an architect signs a contract with the owner, and there is no direct contractual relationship between the contractor and the architect, the contractor has no legal basis to sue the architect for perceived wrongs suffered by actions or inactions of the architect. In short, if the contractor has a grievance, it is actually with the owner, since the architect is merely acting as the owner's representative. Put another way, if I were the worst architect in the world, and my incompetence cost the contractor losses in executing his work, he has to sue the owner. Of course, if I were actually that bad, the owner, with whom the architect is in contract with, could turn around and sue the architect. With only one exception, under Ohio law such a contractor-versus-architect lawsuit is not possible.

The contractor on this project has, in addition to the arbitration against the owner, filed just such a lawsuit against my firm, claiming that our firm did the one exception that would make this case go forward. The assertion is false, as shown by even the contractor's own internal documents, but because of the claim that our firm did this, the judge has refused to dismiss the case. The lawsuit will probably proceed, again, after numerous delays, sometime in the next two or three months after the arbitration is done. The lawsuit is actually nothing more than a "backup lawsuit" to have a second shot at getting some money out of our firm, should the contractor not get satisfaction during the arbitration. There's not much to get from us, as completing the project vaporized the firm's assets, the recession took what little was left, and our liability insurance coverage is far short of their claim - and the pot of available insurance money shrinks every day my attorneys work on the case.

I have tried to lay this scenario out as factually and impartially as possible, without reference to any alleged actions, deeds or misdeeds, of the owner and contractor during the actual construction process. And there are many side roads and twists to the story that I'm leaving out to keep this post somewhat manageable.

On this project, as with all of our projects, we worked very hard to conduct our professional services with integrity, and to hold to our contractual obligations and duties to others with great care, even when doing so came at significant personal expense. I believe that the documentation of the project bears this out, and that if the trial proceeds, this will be crystal clear, assuming there is even the slightest shred of justice remaining in our legal system - a concept that I have come to strongly doubt.

So, anyway...after three years of living through this hell, it appears that it may be finally coming to a close. And no matter how right I know our actions were, and our position is, frankly, I'm scared to death. I hate what this process has done to me & my family, and the financial and mental toll it has taken. Through numerous actions taken by the court regarding our lawsuit(some of these actions will be cause for immediate appeal, should we not win), I have become so jaded and cynical that I cannot rest my hopes for success by just being right.

And the "pregame" - the arbitration case - is next week. And regardless of the fact that the contractor has filed a claim against the owner, the person they're going to go after unmercifully in an attempt to make their case, is me.

Now, after that long explanation, comes my request. I have come to view virtually everyone here, even those with whom I've disagreed on issues over time, to be a friend. Participating in The Piano Forum has often been one of the things that I've done to keep my sanity, and momentarily divert my worries over this situation - the elephant sitting in the corner of the living room of my life. I sincerely ask for your prayers, if you are so inclined, and if not, your thoughts of support, that I would keep the physical and mental strength to get through this test.

I'm a good architect, and a good man, even if a lousy piano player. And I performed my duties professionally and correctly. These things I know. But I know that these days, that alone isn't enough. So I ask for your moral support during this next week, and beyond, until everything is finally resolved. Thank you all.

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Piano & Music Accessories
#872974 - 05/08/02 11:09 PM Re: A Request
jodi Offline
6000 Post Club Member

Registered: 05/26/01
Posts: 6959
Loc: The Evergreen State (WA)
Absolutely. I am 100% behind you. My thoughts \:\) are with you and your family during this time. You ARE a good man, Dwain - you are one of my most favorite people on the piano forum. You are kind and funny and smart and passionate about your beliefs. I have a tremendous amount of respect for you, and I ALWAYS read your posts. I am so sorry that you are having to go through such troubled times, but I have great faith that you will come through it. Hang in there for just a little longer. (there needs to be an icon for a big hug) Jodi

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#872975 - 05/08/02 11:22 PM Re: A Request
Steve Miller Offline
3000 Post Club Member

Registered: 05/26/01
Posts: 3290
Loc: Yorba Linda, CA
You're gonna come out fine, Dwain. It's just a business thing.

No matter the outcome, you still have your family, your talent and your faith.

And that's all you need.

Give it your best shot, I'll be rooting for ya.

Steve
_________________________
Defender of the Landfill Piano

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#872976 - 05/08/02 11:36 PM Re: A Request
Anonymous
Unregistered


Dwain

Yes, my prayers will be with you and with your family -- not so much that you win, but so that all of you come out of this stronger and better as individuals and closer as a family than when you went in.

If you have maintained your professionalism and integrity throughout all of this, you are already better for it and have already won.

It is going to be a difficult few weeks. Know you are not alone.

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#872977 - 05/09/02 12:12 AM Re: A Request
Rodion Offline
Full Member

Registered: 06/06/01
Posts: 296
Loc: Salt Lake City
i'll be using my mind bullets to help against these mean people ;0
_________________________
Time is a great teacher, but unfortunately it kills all its pupils. - Hector Berlioz

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#872978 - 05/09/02 12:36 AM Re: A Request
JohnC Offline
1000 Post Club Member

Registered: 03/10/02
Posts: 1672
Loc: Lower Left Coast
Dwain,

You have my prayers and support. You're a good man.
_________________________
There are few joys in life greater than the absence of pain.

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#872979 - 05/09/02 12:52 AM Re: A Request
Derick Offline
3000 Post Club Member

Registered: 01/03/02
Posts: 3290
Loc: New York
I will keep you and your family in my prayers as well.

Derick
_________________________
Don't worry about people stealing your ideas. If your ideas are any good, you'll have to ram them down people's throats.

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#872980 - 05/09/02 02:00 AM Re: A Request
lucy in the sky_dup1 Offline
500 Post Club Member

Registered: 01/21/03
Posts: 508
Loc: NYC
Dear Dwain,

I was sorry to read about your legal problems. I've never been sued, and I thank my lucky stars. I know that it can knock the wind out of one's sails, big time.

One of my friends who practices a high-risk medical speciality has been sued five times. She was exonerated four times, and had to settle once. She's a sensitive woman, and she appeared to cope by "partitioning" the rest of her life away from these suits and continuing to invest in her family and her work to her fullest ability. Several years after the suits, and despite them, Harvard Med courted her HARD. She's held a high-ranking position there for some time now. I write this just to show that one can be dragged through the mud, and recover one's professional and personal bearing.

My husband is a former defense attorney. From what I understand, a lot happens on voir dire and, subsequently, with the jury's feelings about the people involved. Sometimes these subjective interpersonal readings appear to matter more than cold facts. Juries often feel badly for people who are being sued, particularly if they can identify with those people, and find them likeable and not unnecessarily combatitive. As simplistic as this will sound, being a nice person counts for a lot.

Legal problems can be really hard not only for the people directly involved but for their families. If I were you, I'd let your family know how much their support has meant/would mean to you. And take care of your physical and emotional health. That is not to be neglected!

Finally, my best wishes for a quick and happy resolution. Then get on with your life--full tilt!

All of the best, Lucy
_________________________
Lucy

Member, Red Piano Club
Member, 100 post club

Email: femmedada@aol.com

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#872981 - 05/09/02 07:09 AM Re: A Request
David Burton Offline
1000 Post Club Member

Registered: 05/28/01
Posts: 1757
Loc: Coxsackie, New York
Dwain,

First of all, of course you have my prayers for you and your family. I am no stranger to courts of law, law or lawsuits, though they usually involve quite different matters.

(All of you will find out more about me now, LOL) I am not an attorney, but largely due to my peculiar set of intellectual and personal traits, I have been approached by lawyers on three distinct occasions, one offering to help me finance my legal education, to join the legal fraternity. I have done A LOT of legal research over the years, and indeed AM STILL DOING IT occasionally, for lawyers! They all commend me for my work and wish I'd become one of them. I'm not even a paralegal, and this is what I should have perhaps chosen to do, but.....

On all three of the occasions mentioned above I graciously declined for the following reasons;

1) the present legal system is deeply flawed and needs systemic structural reform to make it clean and honest. If there are any attorneys here, who are honest enough to admit it, they will recognize that the presence of "Mr. Green," a key witness in all too many cases, is crying out for removal.

The present legal system revolves on its own rules, which have little or nothing to do with public law as even minimally understood by the man or woman on the street. This would need to change before I would ever want to personally associate myself with it. As one of my lawyer friends says, "if I'd known that the system was inherently dirty, I wouldn't have spent all this time studying to become a lawyer and starting my own firm." She does as good a job as she can for her clients, which in most cases involves getting them in and out of the system as quickly as possible without promising them anything like "justice."

Becoming part of this system rapidly changes your attitude about ideals and platitudes. Of the three branches of our constitutional government, the judicial is BY FAR the most flawed and the most in need of Draconian reform. Much follows from what I've said including why most lawyers do not support the death penalty, because they KNOW that there are plenty of people rotting in prisons accused of heinous crimes who are in fact not guilty of them.

1a) All lawyers are "deputies" of the court, which makes all of them informers. Remember that whenever you're in the presence of a lawyer. While our system makes innocence before proof of guilt an "article of faith," in reality it makes the lawyer who "knows" someone is guilty, "by information or BELIEF" (emphasis mine as this is the wording associated with establishing guilt "beyond a shadow of doubt"), a partner in a terrible scam of getting the guilty off scot free, while punishing the innocent who have no ready access to the services of "Mr. Green."

The legal profession and by association the judicial magistrates have way too much power and influence over society. But "Mr. Green" has the ultimate say, and I presume that his influence extends all the way to the Supreme Court. Sorry folks, but someone has to tell the truth no matter how cynical.

2) My second reason follows somewhat from the first; there are simply too many lawyers who got into it to make money rather than to serve their clients or any higher law; "justice." And...

3) Why would I want to associate myself with a profession that in the public's eyes is about the most vilified there is? I have trouble enough with people who may not like me for one reason or another to deliberately go into a profession which guarantees that every other informed person out there will hate my guts just for being a lawyer.

So, despite having the natural talent for it, I didn't become an attorney. BUT, I have a few things to say that hopefully may help you.

Your case turns on a few simple facts and keeping them in mind can help you keep your sanity. As I said elsewhere about another matter, the only way to beat a monster and win is to keep that monster squarely in your vision. And Dwain, if you believe, as I tend to, that God presents life problems for our personal growth, no matter how thorny and terrible, then this too is for your ultimate mastery, a learning exercise. Some of these are indeed events and occasions that try our souls.

Here are the facts of this case as I see it:

The owner and the contractor had a primary contract. The contractor could not complete his contract on terms of the contract; time and money. Therefore the owner in exasperation, since time is money, voided his contract and hired someone else to complete the job. The first contractor took the owner to court for breach of contract and damages. You and your firm are not liable, unless it can be proved, that you advised the owner to drop the first contractor, in which case you become an accessory and under basic tort law a co-defendant in the case. Being the "owner's representative" may NOT have been your best course of action.

I strongly suggest that your lawyer should have advised you that a quick arbitration was your best way out of this. I sense there were too many egos involved and that always wastes time and spends money as each side strives for what they think is "justice."

THERE IS NO JUSTICE THIS SIDE OF THE GRAVE!

Make the best deal you can to extricate yourself immediately even if it means you will have to sell out, move and start over somewhere else! If your family supports you in all this then you will know if you didn't already that they really love you. Sorry, but I know of all too many case where when the chips were down, wives and husbands abandoned their mates in the midst of legal troubles.

In the meantime, you have my prayers as I said at the top.

All the Best,

David
_________________________
David Burton's Blog
http://dpbmss041010.blogspot.com/

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#872982 - 05/09/02 09:11 AM Re: A Request
Dwain Lee Offline
2000 Post Club Member

Registered: 05/25/01
Posts: 2419
Loc: Columbus, Ohio
Thanks folks for the kind words.

Lucy, there's a saying in our profession that you're not really an architect until you've been sued, and there is a lot of truth to that. After you've been put through the wringer, it forces you to really closely examine how you do your job. We have improved how we do things since this all started - not really in terms of the actual service, but in the terms under which we provide them. We have incorporated several liability-limiting and clarifying issues in our standard contracts. So in that regard, it's been helpful.

David, you are correct, Mr. Green is very active in this case. I am not going to get into praticulars here about my experience and opinions of the deeds or misdeeds of either contractor or owner, so I can't really address your impression of the facts of this case. Construction law is a very specific beast, with a few more byzantine twists than even a "normal" lawsuit.

Regarding "recommending that the owner terminate the contractor's contract": during the continuation of the work, I was asked several times by the owner if he should terminate the contractor. I explained to him several times that while it's entirely his decision, despite the obvious owner-contractor problems and friction, it was probably more to the his benefit to just grit his teeth and let the contractor finish - that ultimately, this would result in project completion quicker and at less expense than if the contractor were terminated. The owner's attorney originally agreed with this opinion, but as time wore on and the project was not complete, the question had to be revisited.

When it was, it was not the owner directly, but his attorney, and the question was a more appropriate one to ask of me. At that time,I was being asked not "should they be fired?" but rather, a much simpler and objective question: "have they performed in accordance with the terms of the contract documents?" This was an easy question to answer, the evidence required for me to answer this question was abundant and overwhelming. When I finally informed the attorney that they were not performing to those requirements, he consulted with the owner, and the owner made the decision to terminate the contract. I was notified by the owner's attorney to officially notify the contractor, using specific legal language in accordance with the terms of the contract, of the owner's decision (it is a requirement of the owner-architect and owner-contractor agreements that all official communications between owner and contractor are conduited through the architect.) Hopefully, that answers your query about my "accessory" status.

Anyway, thanks again for everyone's thoughts. I'm not generally a weak-kneed individual (not by a long shot!), and I know it will ultimately turn out well. I do have my sights focused on what's really important. I guess I blinked, and was just a little down in the dumps last night. ;\)

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#872983 - 05/09/02 11:27 AM Re: A Request
Sam_dup1 Offline
Full Member

Registered: 01/12/02
Posts: 239
Loc: NYC
Dwain,

I don't pray much, but my thoughts will be with you. HANG ON.

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#872984 - 05/09/02 11:30 AM Re: A Request
Brad Offline
Full Member

Registered: 05/27/01
Posts: 254
Loc: Lexington, KY
Dwain,

I'm probably not the kind of person you really want to hear from: I've been a construction lawyer for many years and have seen your exact situation play out many, many times. However, I have followed your posts on this board for some time and know you to be a man of the highest standards and I wish you the best.

David Burton,

I've also followed your posts for some time and hold your thoughts and opinions in the highest regard. However, I'm confused about your dismay at what I will call the human realities of the legal system. The reason I say this is that I recall some fine posts you made some time ago agruing that much of the fallacy of liberalism is due to "idealism," that is, the slavish adoration of an unacheivable perfection. The legal system -- or justice system if you like -- is a human system full of every human flaw and foible. With that acknowleged, it is the system our society has devised to resolve disputes between the state and private individuals and between private individuals. In my experience, more often than not the system works. By the way, and with no disrespect, I would leave the legal analysis to lawyers.

Brad

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#872985 - 05/09/02 11:57 AM Re: A Request
Jolly Offline
Yikes! 10000 Post Club Member

Registered: 06/20/01
Posts: 14051
Loc: Louisiana
What's brown and black, and looks good on a lawyer? A Doberman!

Seriously, our prayers are with you Dwain. It is dismaying to see someone trying to do the right thing, being dragged down into a legal morass.

Best wishes and may right triumph!
_________________________
www.coffee-room.com

Over 1,000,000 posts where pianists discuss everything. And nothing.

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#872986 - 05/09/02 12:10 PM Re: A Request
DT Offline
1000 Post Club Member

Registered: 06/01/01
Posts: 1478
Loc: Illinois
A woman/man has just found out from her/his doctor that s/he can have additional brains added. "It would cost $10,000 for a pound of junior executive brains; $25,000 for surgeon brains."
"That's great. I've always wanted to be a lawyer. How much for a pound of lawyer brains?"
"$250,000."
"That's 10 times as much as a surgeon. Why are lawyer brains so expensive?"
"Do you have any idea how many are needed to produce a pound of brains?"

I will[/b] pray especially for you and your family but also for the lawyers.
_________________________
Through clever and constant application of propaganda, people can be made to see paradise as hell...

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#872987 - 05/09/02 12:29 PM Re: A Request
nancyww Offline
500 Post Club Member

Registered: 01/21/02
Posts: 585
Loc: central oregon
Dwain,
Praying for you and your family. Keep us posted.
Nancyww

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#872988 - 05/09/02 03:50 PM Re: A Request
Joy Offline
500 Post Club Member

Registered: 05/26/01
Posts: 550
Loc: Encinitas, CA
I'm rooting for you too, Dwain. I know from reading your posts you are a fine person with a well-balanced head on your shoulders. You are also resilient and sharp, a man who can maintain a healthy sense of humor and irony despite horrendously troubled times, rich with family (thank goodness!) and loyal supportive friends.

You'll rise like a phoenix.

Warmest regards,
Joy

\:\)

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#872989 - 05/09/02 08:56 PM Re: A Request
Bernard Offline
3000 Post Club Member

Registered: 07/06/01
Posts: 3857
Loc: North Groton, NH
Dwain, sorry to hear of these tribulations facing you. I image the act of putting your thoughts together and writing this thread must have helped allay some of your agnst if even in a small way. I've often found that sitting down and taking stock is a good first thing to do. Second on my list, usually, is to ponder the worst case scenario and visualize myself in those circumstances. What will I have left? Where will I be? Where will I go from here? What avenues will be open to me? Who can I talk to? Then I look for the positive aspects of that possible situation and try to see that all won't be lost. Answering these questions builds some sort of emotional security blanket that can help weather the worst. I hate to get axiomatic but it's really true what they say, "If it doesn't break you, it'll make you."

But from your post it sure does sound like you've got the facts on your side. My suspicion, as one who knows nothing about the law, is that the judge has no choice but to allow the suit to proceed.

As a religious person, perhaps you may appreciate this:

"Never be afraid of the moments - thus sings the voice of the ever-lasting." -- R. Tagore

Hope all goes well for you.
_________________________
"Hunger for growth will come to you in the form of a problem." -- unknown

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#872990 - 05/10/02 01:01 AM Re: A Request
JBryan Offline
9000 Post Club Member

Registered: 01/19/02
Posts: 9798
Loc: Oklahoma City
As a licensed Professional Engineer I can relate to much of what you have stated here. Although I have never been sued it seems as though a lot of my time is consumed by "what if" scenarios and actions to forestall possible liability issues. It's an unfortunate fact that people in engineering and, in your case, architecture have to be constantly on the lookout for those attempting to mitigate their losses by any means possible. It would be a wonderful life, would it not, dedicated to the pursuit of creating new and useful things/structures but it seems that there is, in this world, a plethora of bottom feeders whose only interest is shaking down those who make themselves a likely target by actually sticking their neck out and CREATING SOMETHING USEFUL. My thoughts and prayers will be with you and the best of luck to you.

James Bryan, P.E.

P.S. Not sure if I can let the "lousy piano player" part slide. \:D
_________________________
Better to light one small candle than to curse the %&#$@#! darkness.

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#872991 - 05/10/02 09:22 PM Re: A Request
ChemicalGrl Offline
500 Post Club Member

Registered: 08/03/01
Posts: 643
Loc: Durham, North Carolina
Dwain -

I'm sorry to hear of the legal problems. My thoughts will be with you. But I'm sure that since everything is documented, those documents should be able to tell the whole story, don't you think? (Or is this just a naive statement on my part?)

Best of luck to you. I'm sure things will turn out fine in the end.
_________________________
Regards,
Lyn F.

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#872992 - 05/20/02 07:45 AM Re: A Request
Rich Galassini Offline
9000 Post Club Member

Registered: 05/28/01
Posts: 9191
Loc: Philadelphia/South Jersey
Dear Dwain,

I haven't checked through the forums in awhile and I missed this post until now. You are and have been sincerely in my thoughts and prayers.

Please keep us posted.
_________________________
Rich Galassini
Cunningham Piano Co.
Phila, Pa.
Dir. Line (215) 991-0834
rich@cunninghampiano.com
Get Cunningham Piano Email Updates

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#872993 - 05/20/02 10:18 PM Re: A Request
Anonymous
Unregistered


How are things going, Dwain?

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#872994 - 05/20/02 11:45 PM Re: A Request
jodi Offline
6000 Post Club Member

Registered: 05/26/01
Posts: 6959
Loc: The Evergreen State (WA)
I've been wondering the same thing - Dwain, how is everything going? Are you done with your testimony? Are you still having to keep your house spotless for showings, or have you sold it? You should SEE our house - it's a major disaster now - cabinets and drawers open, boxes everywhere, full and half full... We can barely squeeze through the doors - the more we do, the worse it looks... \:\) Jodi

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#872995 - 05/21/02 12:34 AM Re: A Request
Steve Miller Offline
3000 Post Club Member

Registered: 05/26/01
Posts: 3290
Loc: Yorba Linda, CA
 Quote:
Originally posted by jodi:
You should SEE our house - it's a major disaster now - cabinets and drawers open, boxes everywhere, full and half full... We can barely squeeze through the doors - the more we do, the worse it looks... \:\) Jodi[/b]
Pictures! We all want pictures!

\:D
_________________________
Defender of the Landfill Piano

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#872996 - 05/21/02 11:54 AM Re: A Request
jodi Offline
6000 Post Club Member

Registered: 05/26/01
Posts: 6959
Loc: The Evergreen State (WA)
You know what I REALLY want to do? I want to sit right down in the middle of all this mess with a big jug of wine, and a 2 lb. box of chocolates. Right now. 8:53 am. Now THAT would make for some good photos. \:D Jodi

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#872997 - 05/25/02 01:03 AM Re: A Request
Palindrome Offline
3000 Post Club Member

Registered: 12/22/01
Posts: 3914
Loc: Chicago, IL USA
 Quote:
Originally posted by Sam:
Dwain,

I don't pray much, but my thoughts will be with you. HANG ON.[/b]
Amen.
_________________________
There is no end of learning. -Robert Schumann Rules for Young Musicians

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