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.