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Pennsylvania Commercial Litigation

Harry F. Kunselman

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Pennsylvania Commercial Litigation by Harry F. Kunselman is an important resource that addresses major issues business attorneys can expect to face.  In addition, it serves as a primer for transactional attorneys and business owners on minimizing risks inherent in their business relationships. Published annually, the author will follow this area of law, providing up-to-date analysis and strategy through the lens of his significant experience as a practicing attorney in the field. Includes the following chapters:


Pre-Suit Considerations

Significant Differences Between State and Federal Practice

Discovery Practice and Procedure

Breach of Contract

Declaratory Judgments

Preliminary Injunctions, Special Injunctions and Temporary Restraining Orders

Covenants Not to Compete

Business Torts

Claims By and Against Shareholders

Director and Officer Liability

Partnership Disputes and Partner Liability

Confessions of Judgment and Opening or Striking Confessed Judgments

Lender Liability

Mechanics Liens 

Collection of Judgments

Fraudulent Transfers

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  • Availability: Available
  • Brand: The Legal Intelligencer
  • Product Type: Books
  • Edition: 1st
  • ISBN: 978-1-57625-598-8
  • Pub#/SKU#: PACL14
  • Pub Date: 03/31/2014

Includes the following forms:



Sample Litigation Hold Notices

Sample Common Interest/Joint Defense Agreement

Example Of A Request For Waiver and Waiver Form

Sample Interrogatories Including an “Instructions and Definitions” Section

Sample Objections In Response To “Instructions and Definitions”

Sample Responses to Interrogatories Including a  “General Objections” Section

Sample Letter From The Requesting Party To The Responding Party Attempting To Flush Out Whether Documents Have Been Withheld

Sample Requests for Production of Documents and Responses Thereto

Examples of Requests for Admission and Accompanying Interrogatories

Examples of Notices of Videotape Deposition

Sample Notice of Deposition of Corporate Designee and Responsive Designation

Sample Privilege Log

Sample Petition for Commission to Issue Subpoena for Foreign Deposition

Example of a Completed Federal Subpoena

Sample Privilege Log

Sample Clawback Agreement

Sample Complaint And Motion For Preliminary Injunction

Sample Injunction Bond

Sample Federal Complaint And Motion For Temporary Restraining Order

Sample Complaint Alleging Tortious Interference With Contractual Relations

Sample Complaint Alleging Trade Libel

Sample Complaint Alleging Misappropriation Of Trade Secrets

Sample Complaint Seeking An Accounting

Examples of Warrants of Attorney

Sample Complaint in Confession of Judgment

Sample Confession of Judgment

Sample Rule To Show Cause

Example of a Praecipe for Writ of Execution Naming a Garnishee

Sample Interrogatories in Aid of Execution





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  • Harry F. Kunselman

Harry F. Kunselman is a shareholder with the Pittsburgh and Beaver offices of the law firm of Strassburger McKenna Gutnick & Gefsky. A member of the prestigious Academy of Trial Lawyers of Allegheny County, and selected as a 2014 Pennsylvania Super Lawyer, he is experienced in a wide range of litigation matters and commercial disputes of all kinds. Mr. Kunselman has served as counsel in many unique and high-stakes cases.


PA COMMERCIAL LITIGATION
TABLE OF CONTENTS

CHAPTER 1
Pre-Suit Considerations
1-1INTRODUCTION
1-2CASE INVESTIGATION CONSIDERATIONS
1-2:1Gathering and Reviewing Client Documents and Electronic Information
1-2:2Considerations for Interviewing Witnesses
1-2:2.1Ethical Considerations for Interviewing Witnesses
1-2:2.2Discovery Considerations When Interviewing Witnesses
1-2:2.3Discovery Considerations for Pre-Suit Communications with Experts
1-3LITIGATION HOLD NOTICES
1-3:1Federal Requirements for Litigation Holds
1-3:2State Requirements for Litigation Holds
1-4JURISDICTIONAL CONSIDERATIONS
1-4:1 Contractual Selection of Forum for Jurisdiction
1-4:2Personal jurisdiction
1-4:3Federal Subject Matter Jurisdiction
1-4:4Federal Diversity Jurisdiction
1-4:4.1Determining Diversity for Corporations
1-4:4.2Determining Diversity for Partnerships and Limited Liability Companies
1-4:5Supplemental Jurisdiction (Claims Which Alone Would Not Otherwise Qualify for Federal Jurisdiction)
1-4:6Removal to Federal Court by Defendant(s)
1-4:6.1Procedure and Timing for Removal
1-4:6.2Determining the Amount in Controversy for Purposes of Removal Based on Diversity Jurisdiction
1-5ARBITRATION
1-5:1Typical Differences Between Arbitration and Court
1-5:2Contests Over Arbitrability
1-5:3Staying Court Proceeding in Favor of Arbitration
1-5:4Staying Arbitration Proceeding in Favor of Court
1-6VENUE
1-6:1Determining Venue in State Court
1-6:1.1Venue As to Individuals
1-6:1.2Venue As to Partnerships
1-6:1.3Venue As to Corporations and Similar Entities
1-6:1.4Venue As to Unincorporated Associations
1-6:1.5Actions Against Two or More Defendants to Enforce Joint or Several Liability
1-6:1.6Requesting a Change in Venue
1-6:2Determining Venue in Federal Court
1-6:2.1Venue Generally
1-6:2.2Venue in Specific Kinds of Actions
1-6:2.3Changing Venue in Federal Court
1-6:3Forum Selection Clauses
1-7ANALYSIS OF POTENTIAL COUNTERCLAIMS
1-8 COMMON INTEREST/JOINT DEFENSE AGREEMENTS

1-8:1 - Background on Common Interest/Joint Defense Privilege
1-8:2 Common Interest/Joint Defense Agreement

CHAPTER 2
Significant Differences Between State and Federal Practice
2-1INTRODUCTION
2-2PLEADING DIFFERENCES
2-2:1Fact Pleading vs. Notice Pleading
2-2:1.1State Court - Fact Pleading
2-2:1.2Federal Court – Notice Pleading
2-2:2Commencement of Action
2-2:3Time for Pleadings
2-2:4Preliminary Objections and Motions to Dismiss
2-2:5Signing of Pleadings; Sanctions under State Rule 1023 and Federal Rule 11
2-3SERVICE OF PROCESS
2-3:1Manner and Time of Service of Process in State Court
2-3:2Manner and Time of Service of Process in Federal Court
2-4COUNTERCLAIMS AND THIRD PARTY CLAIMS
2-4:1Counterclaims
2-4:2Third Party Claims
2-5AMENDED PLEADINGS
2-5:1State Court
2-5:2Federal Court
2-6DISCOVERY DIFFERENCES
2-6:1Initial Disclosures
2-6:2Electronic Discovery
2-6:3Expert Witness Discovery
2-6:4Discovery Limitations
2-7ALTERNATIVE DISPUTE RESOLUTION
2-8SUMMARY JUDGMENT DIFFERENCES
2-9INDIVIDUAL vs. GENERAL CALENDARS

CHAPTER 3
Discovery Practice and Strategies
3-1INTRODUCTION
3-2INTERROGATORIES AND DOCUMENT REQUESTS
3-2:1Interrogatories
3-2:2Requests for Production of Documents and Things
3-3REQUESTS FOR ADMISSION
3-4DEPOSITIONS
3-4:1Timing of Depositions
3-4:2Video Depositions
3-4:3Deposing a Corporate Designee
3-5THIRD PARTY SUBPOENA PRACTICE
3-5:1State Court Subpoena Practice
3-5:1.1General
3-5:1.2Third Party Documents Only Subpoenas
3-5:2Federal Court Subpoena Practice
3-6DISCOVERY OUTSIDE JURISDICTION
3-6:1Obtaining Discovery Out of State in Pennsylvania Actions
3-6:1.1Obtaining Discovery Within the United States
3-6:1.2Obtaining Discovery in a Foreign Country
3-6:2Obtaining Discovery Outside District of Venue in Federal Actions
3-6:2.1Obtaining Discovery Within the United States
3-6:2.2Obtaining Discovery in a Foreign Country
3-7PRIVILEGE CONSIDERATIONS
3-7:1Attorney-Client Privilege
3-7:2Work Product Privilege in State Court
3-7:3Work Product Privilege in Federal Court
3-7:4Inadvertent Waivers and Clawback Agreements
3-8DISCOVERY OF ELECTRONICALLY STORED INFORMATION (ESI)
3-8:1State Court Discovery of ESI
3-8:2Federal Court Discovery of ESI
3-9SPOLIATION

CHAPTER 4
Breach of Contract
4-1INTRODUCTION
4-2SALES OF GOODS
4-3SALES OF REAL ESTATE AND OTHER CONTRACTS
4-4ELEMENTS OF THE CLAIM
4-4:1Choice of Law and Forum
4-4:2Express vs. Implied Contracts and Oral Contracts
4-4:3Certainty and Subject Matter
4-4:4Offer and Acceptance
4-4:5Necessity for Writing (Statute of Frauds)
4-4:6Consideration and the Pennsylvania Uniform Written Obligations Act
4-4:7Breach of Warranty
4-4:7.1Breach of Express Warranty
4-4:7.2Breach of Implied Warranty
4-4:7.2aImplied Warranty of Merchantability
4-4:7.2bImplied Warranty of Fitness for Particular Purpose
4-4:7.2cImplied Warranty of Habitability
4-4:7.3Disclaimer and Limitations on Warranties
4-4:8Promissory Estoppel
4-4:9Third Party Beneficiary Claims
4-5LIABILITY DEFENSES
4-5:1 Absence of Any of the Necessary Elements
4-5:2Non-Occurrence or Failure of Condition
4-5:3Failure to Perform; Anticipatory Breach; Adequate Assurances
4-5:3.1Failure to Perform
4-5:3.2Anticipatory Breach
4-5:3.3Request for Adequate Assurances
4-5:4Force Majeure
4-5:5Waiver and Estoppel
4-5:6Impossibility of Performance, Illegality and In Pari Delicto

4-5:6.1Impossibility of Performance
4-5:6.2Illegality
4-5:6.3In Pari Delicto
4-5:7Integration Clauses and the Parol Evidence Rule
4-5:8Statute of Limitation
4-5:9Equitable Defenses – Laches, Unclean Hands and Adequacy of Remedy at Law
4-5:9.1Laches
4-5:9.2Unclean Hands
4-5:9.3Adequate Remedy at Law
4-6REMEDIES
4-6:1Damages
4-6:1.1Direct Damages
4-6:1.2Indirect or Consequential Damages
4-6:1.3Loss of Profits
4-6:1.4Liquidated Damages
4-6:1.5Pre- and Post-Judgment Interest
4-6:1.6Attorney’s Fees
4-6:1.7Punitive or Exemplary Damages in Contract Cases
4-6:2Injunctive Relief
4-6:2.1Specific Performance
4-6:2.2Rescission
4-7LIMITATIONS ON REMEDIES
4-7:1Disclaimers and Contractual Limitations on Damages
4-7:1-1Limitation Clauses vs. Exculpatory Clauses
4-7:1.2Negligent vs. Reckless Conduct and Impact on Limitation Clauses
4-7:2Liquidated Damages

CHAPTER 5
Declaratory Judgments
5-1NATURE AND GROUNDS FOR DECLARATORY RELIEF
5-2SUBJECTS OF DECLARATORY RELIEF IN COMMERCIAL CASES
5-2:1Rights and Status Under Statutes or Regulations
5-2:2 Rights and Status Under Contract
5-2:3Insurance Coverage or Lack of Coverage
5-2:4Property Rights
5-2:5Lien Status and Priority of Liens
5-2:6Intellectual Property Rights
5-3ACTION FOR DECLARATORY RELIEF AS A PRE-EMPTIVE STRIKE
5-4PROCEDURE FOR DECLARATORY RELIEF

CHAPTER 6
Preliminary Injunctions, Special Injunctions and Temporary Restraining Orders
6-1INTRODUCTION
6-2PRELIMINARY OR SPECIAL INJUNCTIONS IN STATE COURT
6-2:1Elements
6-2:2Procedure for Obtaining an Injunction
6-2:2.1Petition, Complaint or Application
6-2:2.2Requirement of a Bond
6-2:2.3Trial or Hearing
6-2:2.4Continuing, Modifying or Terminating an Injunction
6-3PRELIMINARY INJUNCTIONS AND TEMPORARY RESTRAINING ORDERS IN FEDERAL COURT
6-3:1Elements
6-3:2Procedure for Obtaining an Injunction
6-3:2.1Petition, Complaint or Application
6-3:2.2Requirement of a Bond
6-3:2.3Trial or Hearing
6-3:2.4Continuing, Modifying or Terminating an Injunction
6-4DEFENSES
6-4:1No Immediate or Irreparable Harm
6-4:2Balancing of Harms From Granting vs. Denying Injunction
6-4:3Adequate Remedy at Law
6-4:4Laches
6-4:5Mootness
6-4:6Public Policy Defense

CHAPTER 7
Covenants Not To Compete
7-1INTRODUCTION
7-2ELEMENTS FOR ENFORCEABLE COVENANT NOT TO COMPETE
7-2:1Incident to Sale of Goodwill of a Business or Employment Relationship
7-2:1.1Incident to Sale of Goodwill of a Business
7-2:1.2Incident to Employment Relationship
7-2:2Supported by Adequate Consideration
7-2:2.1Consideration Generally
7-2:2.2Pennsylvania Uniform Written Obligations Act
7-2:3Reasonably Necessary to Protect Employer’s Interests and Not Outweighed by Public Interest
7-2:3.1Legitimate Employer’s Interest
7-2:3.2Public Interest Considerations
7-2:4Reasonably Limited in Duration and Geographic Scope
7-2:5Protecting Employer Customer Relationships and Trade Secrets
7-3DEFENSES
7-3:1Introduction
7-3:2Standing/Assignability of Agreement Containing Restrictive Covenant
7-3:3Nature of Contract Not Protectable
7-3:4Absence or Inadequacy of Consideration
7-3:5Nature of Contract Not Protectable
7-3:6Public Interest Outweighs Employer’s Interest
7-3:7Unreasonable Geography or Temporal Scope
7-3:8Challenge of Secrecy/Confidentiality of Information
7-4PROCEDURE FOR ENFORCEMENT OF COVENANTS NOT TO COMPETE

CHAPTER 8
Business Torts
Trent A. Echard, Esquire
8-1TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS
8-1:1Elements of Tortious Interference
8-1:2Defenses and Privileges
8-2FRAUD, CONCEALMENT, AND MISREPRESENTATION
8-2:1Elements of Common Law Claims
8-2:2Civil Claims under the Racketeer Influenced and Corrupt Organizations Act
8-2:3Heightened Pleading Requirements for Fraud Based Claims
8-3TRADE LIBEL/SLANDER OF TITLE
8-3:1Elements of Trade Libel
8-3:2Defenses
8-4UNFAIR COMPETITION
8-5MISAPPROPRIATION OF TRADE SECRETS
8-5:1Overview
8-5:2Statutory Law
8-5:3Considerations Presented by Computer Technology
8-5:4Preemption by the Pennsylvania Uniform Trade Secrets Act
8-6OTHER TORT DEFENSES
8-6:1Economic Loss Doctrine
8-6:2Gist of the Action Doctrine
8-6:3Statutes of Limitation

CHAPTER 9
Claims By and Against Shareholders of Corporations
9-1MINORITY SHAREHOLDER RIGHTS
9-1:1Duties of Majority Shareholders to Minority
9-1:2Right to Inspect Corporate Books and Records
9-2OPPRESSION
9-2:1Grounds for Action
9-2:2Remedies
9-2:2.1Dissolution
9-2:2.2Appointment of Custodian
9-2:2.3Payment of Fair Value of Shares
9-2:2.4Punitive Damages
9-3DISSENTER’S RIGHTS
9-3:1Introduction
9-3:2Procedure to Invoke Dissenter’s Rights
9-3:3Valuation Proceeding
9-3:4Exclusivity of Dissenter’s Rights Remedy
9-4DERIVATIVE ACTIONS
9-4:1Grounds for Action
9-4:2Procedural Prerequisites
9-4:2.1Shareholder Status and Demand
9-4:2.2Ownership of Interest or Serious Injustice
9-4:2.3Adequacy of Representation
9-4:2.4Corporation as Party
9-4:2.5Posting of Security
9-4:3Defenses
9-4:3.1General
9-4:3.2Business Judgment Rule
9-4:4Remedies
9-5PIERCING THE CORPORATE VEIL – SHAREHOLDER LIABILITY
9-5:1Introduction
9-5:2Bases and Theories of Veil-Piercing
9-5:2.1Alter Ego Theory
9-5:2.2Enterprise or Single Entity Theory

CHAPTER 10
Director and Officer Liability
10-1INTRODUCTION
10-2FIDUCIARY RELATION
10-3INDEMNIFICATION RIGHTS
10-4BUSINESS JUDGMENT RULE
10-5GROUNDS FOR LIABILITY
10-5:1 Breach of Fiduciary Duty in General
10-5:2Self-Dealing
10-5:3Usurpation of Corporate Opportunity
10-5:4Fiduciary Duty to Creditors

CHAPTER 11
Partnership Disputes and Partnership Liability
11-1CREATION AND NATURE OF PARTNERSHIP
11-2RIGHTS AND DUTIES OF PARTNERS
11-2:1Rights and Duties Vis-à-Vis the Partnership
11-2:2Rights and Duties Vis-à-Vis Each Other
11-2:3Rights and Duties Vis-à-Vis Third Persons
11-3CLAIMS BETWEEN AND AMONG PARTNERS
11-3:1Breach of Contract
11-3:2 Breach of Fiduciary Duty and Other Torts
11-3:3Action for Accounting
11-4DERIVATIVE ACTIONS
11-5INDEMNIFICATION

CHAPTER 12
Confessions of Judgment and Opening or Striking Confessed Judgments
12-1INTRODUCTION
12-2WARRANT OR POWER OF ATTORNEY
12-3PROCEDURE TO CONFESS JUDGMENT
12-4OPENING OR STRIKING CONFESSED JUDGMENT
12-4:1Procedure – Petition to Open or Strike
12-4:2Grounds for Opening or Striking Judgment
12-4:2.1Absence of Authority
12-4:2.2Defense to Merits of Judgment Holder’s Claim
12-4:2.3Improper Amount
12-4:2.4Procedural Irregularities in Confessing Judgment
12-5ENFORCING CONFESSED JUDGMENT

CHAPTER 13
Lender Liability Claims
13-1CIRCUMSTANCES GIVING RISE TO LENDER LIABILITY
13-1:1Breach of Contract
13-1:2Tort Theories of Recovery
13-2LENDER DEFENSES
13-2:1General
13-2:2Gist of the Action Doctrine
13-2:3Creeger Brick and Corestates Bank – Can a Lender Be Liable for Breach of the Duty of Good Faith?
13-2:3.1Creeger Brick
13-2:3.2Corestates Bank

Chapter 14 
Mechanics’ Liens
Christopher J. Azzara, Esquire
14-1THE PENNSYLVANIA MECHANICS' LIEN LAW OF 1963
14-2CIRCUMSTANCES GIVING RISE TO LIEN
14-2:1The Parties
14-2:1.1The Owner
14-2:1.2The Contractor
14-2:1.3The Subcontractor
14-2:2Who Can Lien?
14-2:3What Can be Liened?
14-2:4What Cannot be Liened?
14-2:5Basis for Lien
14-2:5.1Labor
14-2:5.2Materials
14-2:5.3Erection and Construction
14-2:5.4Alteration and Repair
14-3PROCEDURE TO OBTAIN LIEN
14-3:1Formal Notice of Intention to File Lien by Subcontractor
14-3:1.1Duties and Remedies of Owner and Contractor on Notice of Intention to File or on Filing of Claim by Subcontractor
14-3:2Filing Claim and Perfection of Lien
14-3:2.1Time for Filing
14-3:2.2Contents of Claim
14-3:2.3Service of Claim
14-3:2.4Contesting Claim
14-4DEFENSES TO CLAIM
14-4:1Waiver of liens
14-4:2Delay; Failure to Prosecute
14-4:3Payment
14-4:4Failure to comply with notice, filing, or service requirements
14-4:5Right of Owner to Limit Claims to Unpaid Balance of Contract Price
14-5ENFORCEMENT OF LIEN
14-5:1Obtaining Judgment on Claim
14-5:2The Complaint
14-5:3Responsive Pleadings
14-5:3.1Preliminary Objections
14-5:3.2Answer
14-5:3.3Prohibition against Joinder and Counterclaims
14-5:4Judgment
14-5:5Execution

CHAPTER 15 
Collection of Judgments
15-1INTRODUCTION
15-2POSTING SECURITY TO STAY EXECUTION.
15-3EFFECT OF JUDGMENT AS LIEN
15-3:1Lien on Real Estate
15-3:2Lien on Non-Real Estate Assets
15-4WRIT OF EXECUTION
15-4:1State Court
15-4:2Federal Court
15-5GARNISHMENT
15-5:1Procedure for Garnishment
15-5:2Interrogatories in Aid of Execution and “Pleading Practice”
15-5:3 Contested Garnishments
15-5:4Releasing Property from Levy or Attachment
15-5:5Third Party Claims to Property Levied Upon - Sheriff’s Interpleader
15-6DISCOVERY IN AID OF EXECUTION
15-7SHERIFF’S SALES
15-7:1Real Estate
15-7:2Other Types of Property

CHAPTER 16
Christopher J. Azzara, Esquire
Fraudulent Transfers
16-1LAWS GOVERNING FRAUDULENT CONVEYANCES
16-2GROUNDS FOR FRAUDULENT TRANSFER
16-3NATURE OF TRANSFER CHALLENGED
16-4ACTUAL FRAUD
16-5CONSTRUCTIVE INTENT
16-5:1Transfers for Reasonably Equivalent Value
16-5:2Transfers for Less Than Reasonably Equivalent Value
16-5:2.1Insolvency - Balance Sheet Test
16-5:2.2Insolvency - Unreasonably Small Capital Test
16-5:2.3Insolvency - Equitable Insolvency Test
16-6RELATIONSHIP BETWEEN TRANSFEROR AND TRANSFEREE
16-7RIGHTS OF CREDITORS vs. BONA FIDE PURCHASERS
16-8PROCEDURE FOR CHALLENGING FRAUDULENT TRANSFER
16-9DEFENSES TO A CLAIM OF FRAUDULENT TRANSFER
16-10REMEDIES
16-10:1Avoidance of Transfers
16-10:2Judgment for Voidable Transfers
16-10:3Attachment
16-10:4Execution
16-10:5Injunctive Relief
16-10:6Appointment of Receiver