Articles by Our Attorneys

By: Peter E. Kratsa

Pennsylvania’s Protection from Abuse Act provides a mechanism for people alleging abuse¹ to initially obtain a temporary emergency court order on an ex parte basis, i.e. without providing notice to the alleged perpetrator of abuse. This puts the defendant behind the eight ball from the outset, as the plaintiff is given free rein to vilify them before the Court without any opportunity for the defendant to be heard.  While a subsequent hearing in which a “permanent order” is sought is to be scheduled within ten (10) days at which hearing the petitioner need prove their allegations of abuse by a preponderance of evidence (basically, “more likely than not”) and the defendant is given their opportunity to defend against the allegations, the defendant is swimming upstream from the outset of this litigation.  

Sometimes this procedural hardship is necessary and justified (for instance in the circumstance of concurrent police-charged allegations of criminal physical or sexual violence). However sometimes the process is not fair at all (for instance when one spouse seizes the opportunity to jettison the other from the marital residence during the pendency of a divorce action absent any formal police involvement).  This ex parte procedure tasks our judges to make impactful credibility determinations while hearing only one side of the story.  Understandably, the judges tend to err on the side of caution, credit the allegations and issue the temporary order.  

Court intervention, or “Relief”, on the basis of a temporary or permanent order (lasting up to three years) typically involves directing the defendant to refrain from abusing (and in most cases, contacting at all) the plaintiff or minor children, granting exclusive possession of the residence or household to the plaintiff and excluding the defendant from it, mandating that the defendant continue to provide financial support to plaintiff or minor children, awarding temporary (often times exclusive) custody of the children to the plaintiff², prohibiting the defendant from acquiring or possessing firearms, providing restitution to the plaintiff for any reasonable losses suffered as a result of the abuse, and “granting any other appropriate relief sought by the plaintiff”. See 23 Pa.C.S.A. §6108. 

Now, “Relief” will also include the family pet(s). Act 164 of 2024 amends the PFA Act to provide for additional relief: “Granting temporary ownership rights over a companion animal³ directing the defendant to refrain from possessing, contacting, attempting to contact, transferring or relocating the companion animal or contacting or entering the property of any person sheltering the companion animal.” The Act, in fact, includes a provision allowing for the inclusion of the “companion animal” as a protected party and directing the defendant from “abusing, harassing, stalking, threatening or attempting or threatening to use physical force against … the companion animal.” 

One can only wonder why our legislature, in its infinite wisdom, decided it was so important to amend this Act to include pets?  One thing is certain, this will add another layer of litigation to a process that is already rife with issues involving fairness and common sense.   

As an attorney with over 30 years of experience, I have seen the Protection from Abuse Act frequently weaponized to obtain leverage in matters of divorce and custody. The Act is obviously well-intentioned and necessary; however, it is itself frequently abused by opportunistic petitioners and their counsel.  It is incumbent on the lawyers trying these cases to defend them by developing evidence which will alert judges to ulterior motives and differentiate these cases from those truly involving abusive behavior.   

While this attorney has often called for the PFA process to be reformed, this amendment is not what I had in mind. I can envision the case captions now: Jane Doe, on behalf of herself, Minor Children and Cuddles the Cat, v. John Doe.  A frequently circus-like atmosphere now will include animals.  

Act 146 goes into effect on January 17, 2025. 

Attorney Peter Kratsa is the Chair of MacElree Harvey’s Criminal Defense Group and a member of the firm’s Family Law Group. Pete and Caroline Donato provide further insight into Pennsylvania’s PFA process in Episode 39 of their Podcast Subject to Cross. Listen wherever you listen to podcasts.

1. “Abuse” is defined as the occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood: (1) attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, or other sexual offenses without or without a deadly weapon. (2) Placing another in reasonable fear of imminent serious bodily injury. (3) The infliction of false imprisonment. (4) Physically or sexually abusing minor children. (5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury[.] 23 Pa.C.S. §6102.  ↩︎
2. Any award of custody can later be superseded by a subsequent Custody Order in Family Court. ↩︎
3. A companion animal is defined as a domesticated animal not used in commercial agriculture or production.  ↩︎

By: Robert A. Burke

The use of boilerplate in commercial transactions can be a simple way for contracting parties to close business deals. However, the risks of using boilerplate provisions are exposed when disputes arise. This article addresses some of the more troubling provisions that find their way into standard commercial contracts.

We will touch on the following provisions:

• Recitals
• Governing Law
• Dispute Resolution (Mediation/Arbitration)
• Indemnification
• Liquidated Damages
• Merger Clauses

Recitals

Recitals are often used by parties to help identify the purpose of the agreement, the identity of the parties, and the reasons the parties have decided to enter into the agreement. Recitals can also be useful for explaining a complicated factual scenario that led to the contract.

A cautionary note on recitals: the parties need to determine if the recital will be part of the contract. There are two issues to identify here.

First, if the recital isn’t important enough to be specifically incorporated into the agreement, then why have it in the agreement?

Second, it’s typically wise to have the recital be part of the contract (and expressly state that it is part of the contract). This will make sure that the recital is admissible in interpreting the contract’s substantive provisions. This could also assure that the parties remove superfluous language.

Finally, a typical recital is the “statement of consideration”. The statement of consideration is not necessarily direct evidence that the agreement is supported by adequate consideration. However, if this language is in the agreement, most courts will recognize that there is a presumption that the agreement is supported by adequate consideration. Keep in mind, this presumption can be rebutted, and the contract could be deemed unenforceable for lack of consideration.

Governing Law

A choice of law provision is usually appropriate to include in most business transactions.  Without a valid choice of law provision, the courts will be left to determine the law of the state with the most significant relationship that will govern the enforcement of the agreement.

There is also a cautionary note on the use of choice of law provisions.  Namely, the chosen law is usually the state where the drafter’s office is located.  This is done without any regard for what impact the state’s law will have on the agreement.  Best practices dictate that you research the chosen jurisdiction’s laws before you include the provision.  If you have no idea why you are applying your state’s choice of law, don’t put it in the contract.

Dispute Resolution: Mediation and Arbitration

Dispute resolution provisions are an important part of any business transaction.  It’s prudent for the parties to decide at the start of a transaction what will happen if the transaction goes sour. The parties are free to provide for the adjudication of future disputes by inserting mandatory mediation and/or arbitration provisions in their agreements.

The American Arbitration Association, one of the larger dispute resolution organizations, has a number of draft provisions that can be used.  For example:

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators (s) may be entered in any court having jurisdiction thereof.

This provision covers many of the necessary elements of an arbitration clause:

• Any claim is covered by mandatory arbitration;
• It identifies the entity that is going to administer the arbitration;
• It describes the rules under which the arbitration will be decided; and
• It recognizes that any judgment arising out of the arbitration proceeding will be enforceable in a court.

The parties need to ascertain whether arbitration is the appropriate remedy for any dispute. This depends on the identity of the parties and the nature of the agreement.  Additionally, while it is presumed that arbitration is less expensive, this is not always the case. The parties typically will share in the cost of the arbitrator. In this regard, it’s not unusual for an arbitration clause to contain a provision that there will be a panel of three arbitrators. Having three arbitrators adjudicate a dispute is extraordinarily expensive and often cumbersome.

Additionally, there is no meaningful opportunity to appeal an arbitration award. An arbitration award will only be overturned if there is some sort of egregious unfairness in the arbitration process. The standard typically applied involves “fraud or corruption” (depending on the jurisdiction). It’s not enough if the arbitrator made evidentiary errors, incorrectly determined the facts or improperly applied the law. While there is finality in this result (and the avoidance of suffering through the costs and time delays of litigation in court) there is effectively little accountability for the arbitrator.

Before selecting an arbitration organization to administer any disputes, it’s important to understand the rules that the arbitrator will apply. The AAA is just one of many organizations in this country that will administer arbitration disputes. There are other organizations, as well, that administer arbitration disputes.

To the extent you’re going to have an arbitration provision in your agreement, it is useful to set forth the place that the arbitration will occur. This is especially important if the parties are from different jurisdictions.

Indemnification

A standard indemnification provision can provide for recognition of the parties’ obligations to compensate the other party for certain costs and expenses.

A standard indemnification provision can read as follows:

[Buyer/Seller/Mutual] Indemnification. Subject to the terms and conditions set forth herein, [Buyer/Seller/each party] (“Indemnified Party”) shall indemnify, [hold harmless,] and defend [Seller/Buyer/the other party] and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including [reasonable] attorneys’ fees, that are [incurred by Indemnified Party/awarded against Indemnified Party [in a final [non-appealable] judgment]] (collectively, “Losses”), [arising out of] any third-party claim alleging:[1]

The parties to the agreement have the option of making the indemnification provision mutual or unilateral. It’s not unusual, depending on the type of commercial transaction, for the parties to have different indemnification responsibilities. Specifically, the transaction can be set up where only one party indemnifies the other.

The indemnification provisions can apply to direct claims or third-party claims. Direct claims are claims that one of the parties to the contract will have as against the other party. The indemnification provision should clearly set forth that the indemnification is to cover only “direct claims” if that is the intent.

Third-Party claims are claims that an unknown or identified third-party may have against the indemnified party. Standard indemnification clauses are typically interpreted to cover the indemnification of third-party claims.

Another drafting error that parties make is failing to recognize the full extent of the indemnification provision. For example, the indemnification provision (in order to be complete) must provide that the provision requires the indemnifying party to “indemnify, defend and hold harmless”.

Finally, the indemnifying party’s obligation can be limited by the agreement. Specifically, the indemnifying party can limit its indemnity obligation by:

• Negotiating to qualify certain provisions, for example, by using

-reasonableness to qualify attorneys’ fees;

-gross negligence to qualify the indemnifying party’s acts and omissions; or

• Limiting the indemnity obligation to cover only claims arising in certain jurisdictions.
• Limiting the definition of the Indemnified Party. For example, sellers often refuse to include the buyer’s customers as indemnified parties, since the losses and liabilities suffered by customers are often only partly attributable to the seller’s actions.
• Limiting the indemnity obligation to losses and liabilities that are not covered by:

-insurance proceeds received by the indemnified party; and

-tax benefits received by the indemnified party.

• Replacing the nexus phrase “arising out of” with the narrower:

-caused by;

-resulting from;

-solely resulting from; or

-to the extent they arise out of.[2]

Liquidated Damages

Liquidated damage clauses anticipate the amount of loss or attempt to set caps on the types of damages that may be recovered. Liquidated damages clauses are generally enforceable unless they are determined to be a penalty. (This is not to be confused with a limitation of remedies). Liquidated damages provisions are a means by which the parties may apportion the risk. It’s not necessary that these liquidated damages provisions be reciprocal.

Liquidated damages provisions receive different treatment depending on the jurisdiction. In this regard, it’s critical to understand the governing law of the jurisdiction at issue before drafting the liquid damages provision. (See II, above). The parties need to have a clear understanding as to the definition of the types of damages that could be at issue:

• Compensatory damages;
• Actual damages;
• General damages;
• Special damages;
• Consequential damages;
• Damages recoverable under the UCC;
• Lost profits; and
• Punitive damages

It’s important for the parties to not overreach with respect to drafting a limitation of damages provision and risk a determination that the agreement is unconscionable or fails of its essential purpose.

Merger Clause

The merger clause, similar to the recital provisions, is an important way for the parties to define the agreement. For example, an agreement may provide that:

This agreement, together with all exhibits referenced herein, constitutes the entire agreement between the parties in relation to the subject matter of this agreement and supersedes all prior agreements, understandings and commitments, whether oral or in writing, between the parties.

This is the most basic type of merger clause. Merger clauses can also provide express representations that no other promises or inducements have been made by the parties in agreeing to execute the agreement “and that the parties are not relying upon any statement or representation of any other party.”

The merger clause should also address the manner in which future amendments and/or modifications will be accepted. Specifically, the agreement could provide that:

This agreement may not be amended or modified in any manner except by a written document signed by both parties that expressly amends this agreement.

Accordingly, the basics of any merger clause will include:

• a definition of the agreement;
• an express exclusion of reliance;
• a representation that the parties have conducted their own due diligence and relied solely upon their own due diligence; and
• address the manner in which future amendments and modifications will be accepted.

Robert A. Burke is a Partner in the Litigation Department at MacElree Harvey, focusing on complex commercial and estate litigation. With extensive trial and appellate experience across federal, state, and international courts, Bob has a strong track record in resolving partnership disputes, trust and estate conflicts, and intellectual property matters.

We are back after summer recess to give you the latest updates in the world of employment law for September, 2024.  In this month’s iteration, Penn State has to reckon with the Department of Labor on equal pay, free speech is implicated in a federal “preferred pronoun” case, and UPS suffers a major verdict for racial harassment.  Read all the latest below.

Penn State Agrees to $703K Settlement in DOL Wage Discrimination Case

Penn State University has agreed to pay over $703,700 to settle allegations from the U.S. Department of Labor (DOL) that it paid 65 women less than their male counterparts in similar roles. These women, employed in maintenance, research, teaching, and administrative positions, were found to have been underpaid since at least July 2020, according to a review by the DOL’s Office of Federal Contract Compliance Programs (OFCCP).

The settlement includes $682,419 in back pay and $21,323 in interest. Penn State has also committed to reviewing and adjusting its pay policies to prevent future disparities. The university stressed that the pay inequities were unintentional, but emphasized its commitment to addressing the issue fairly.

This case arose as part of a routine compliance review, which uncovered wage gaps at Penn State’s main University Park campus, impacting various departments including the College of Engineering and the College of Agricultural Sciences. The university receives significant federal funding, exceeding $178 million in 2024, and is required to ensure equitable employment practices under Executive Order 11246.

In its announcement relating to the settlement, Penn State has pledged to ensure pay equity for all employees.

Eleventh Circuit Transgender Pronoun Case Could Have Implications for Free Speech 

The Eleventh Circuit Court recently heard oral arguments in a case brought by transgender and nonbinary Florida public school teachers challenging the state’s law, H.B. 1069, which restricts the use of preferred pronouns that do not match biological sex. The case focuses on Katie Wood, a transgender teacher, who was granted a preliminary injunction allowing her to continue using her preferred pronouns at work while pursuing a First Amendment claim.

During the hearing, the panel of judges asked numerous hypothetical questions to explore the limits of free speech protections for teachers, addressing scenarios such as teachers using titles like “Mr. MAGA” or “Captain Woke” and whether the state could enforce specific honorifics. Wood’s attorney argued that her pronoun usage is protected speech under the First Amendment, referencing the U.S. Supreme Court’s decision in Kennedy v. Bremerton, which upheld private expression rights for public school employees.

The state’s defense maintained that regulating how teachers refer to themselves falls within the state’s authority to manage its workforce. The court’s decision in this case could have significant implications for free speech rights of public employees across various sectors.

The case is Wood et al. v. Florida Department of Education et al., case number 24-11239, in the U.S. Court of Appeals for the Eleventh Circuit.

UPS Hit with $238 Million Verdict for Hostile Work Environment

A federal jury in Washington awarded $237.6 million to Tahvio Gratton, a former UPS driver, in a racial discrimination lawsuit. Gratton, who is Black, alleged that he faced racial harassment from his supervisors and was wrongfully terminated after complaining about the mistreatment. The jury awarded him $39.6 million for emotional distress and $198 million in punitive damages.

Gratton claimed he experienced discrimination after transferring to Yakima in 2018, where he was treated differently than his white coworkers. A white manager repeatedly referred to him as “boy,” a term with deep racist connotations, even in front of customers. When Gratton complained, his supervisors dismissed his concerns, exacerbating his distress. After raising further complaints, Gratton said he was overloaded with work and targeted for minor issues.

UPS, however, argued that Gratton was fired for allegedly assaulting a female coworker, a claim he denied. The company has expressed disappointment with the verdict and plans to appeal, citing legal errors during the trial.

Gratton’s attorney praised the jury’s decision, viewing it as a victory for workers facing similar discrimination across the country. UPS plans to challenge the ruling.

The case is Gratton v. United Parcel Service Inc., case number 22-03149, in the U.S. District Court for the Eastern District of Washington.

Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.  Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.

By: Michael G. Louis

I had another successful year having tax sales overturned or settling the cases after filing petitions to overturn tax sale after the owners had lost them at upset tax sales in 2023.

In one of them the Tax Claim Bureau did not advertise the sale in two newspapers of general circulation in that county.  Unless there is only one newspaper of general circulation in that county that is a clear violation of the Real Estate Tax Sale Act.  If the Tax Claim Bureau does not comply with all of the requirements, and there are many, then the tax sale will be overturned.

I had another one where the owner of the property had died before the tax sale and there was an estate opened and my client was the executrix but she was never notified of the tax sale.  That case settled because we filed a very persuasive petition to overturn the tax sale which was probably going to be a winner if it didn’t settle.

In another one, even though my client did not sign the certified mail, return receipt card the Tax Claim Bureau did not exercise reasonable efforts to discover the whereabouts of the owner of the property and notify her.  Again, that is a violation of the clear mandate of the statute and since I raised it in the petition to overturn tax sale and supported it by depositions the case settled for a reasonable amount.  

In another case, my client had lost his property at a sheriff’s sale for real estate taxes.  In that situation you have nine months to redeem the property which my client did and the court found he did it timely.

I had another case where my client decided that there was not enough equity in the property to fight the tax sale because the amount bid at the tax sale was close to the value of the property.  He decided after consulting with me that he would not fight the tax sale but would just accept the excess proceeds over and above what was necessary to pay the taxes which are paid to the purchaser by the Tax Claim Bureau after any liens on the property are paid in full.

If at all possible, one should always try to avoid the tax sale even if you need to file bankruptcy before the tax sale to do so.  However, if you lose your property at tax sale the important thing is to retain an attorney who knows tax sale law as soon as possible after the tax sale and retain him or her to file a petition to overturn the tax sale.  If the Tax Claim Bureau clearly did not follow the mandate of the statute then sometimes the buyer will simply agree to overturn the sale without any payment being required.  The more normal result is if I am able to find a defect in the Tax Claim Bureau’s process for conducting the tax sale then the case will settle for a lower amount.

However, I had another sale in 2023 where my client was served and knew about the tax sale and had absolutely no defense.  However, we were still able to settle the matter but just had to pay a lot more money.  My client still was able to save several hundred thousand dollars in equity in her property that she would have lost if the tax sale had just been allowed to proceed.  

The sooner you contact me after the tax sale, the better chance I will have to overturn the tax sale.  

Michael G. Louis is Chair of MacElree Harvey’s Banking and Finance Litigation Practice. He has extensive experience defending clients in tax sale cases, mortgage foreclosures, collections and loan workouts, general counsel work and real estate litigation, including landlord-tenant litigation. In addition to practicing civil litigation as referenced above, Michael does bankruptcy for creditors. To learn more about Michael, visit macelree.com/attorney/michael-g-louis, call 610-840-0228, or email MLouis@macelree.com.