Pennsylvania Commercial Litigation Eighth Edition (2022)

by Harry F. Kunselman

Overview

Pennsylvania Commercial Litigation is an important resource for the general practitioner that addresses procedural and substantive issues encountered in commercial litigation. In addition, it serves as a primer for both attorneys and business owners on minimizing risks inherent in business relationships. Pennsylvania Commercial Litigation is a concise overview of commercial litigation, providing detailed research and analysis, and is intended to guide the reader through every stage of a commercial dispute.

•  Pre-Suit Considerations
•  Significant Differences Between State and Federal Practice
•  Discovery Practice and Strategies
•  Breach of Contract and Unjust Enrichment
•  Declaratory Judgments
•  Preliminary Injunctions, Special Injunctions and Temporary Restraining Orders
•  Covenants Not to Compete
•  Business Torts
•  Claims By and Against Shareholders of Corporations
•  Director and Officer Liability
•  Partnership and Limited Liability Company Disputes
•  Confessions of Judgment and Opening or Striking Confessed Judgments
•  Lender Liability Claims
•  Mechanics’ Liens
•  Collection of Judgments
•  Fraudulent Transfers
•  Indemnification and Contribution
•  Construction Related Claims
•  Actions in Replevin
•  Actions to Quiet Title
•  Oil and Gas Litigation
•  Disputes Relating to Trademarks, Trade Names, and Unfair Competition
•  Compelling and Resisting Arbitration

Also included are forms covering pleadings, discovery, privilege, notices and more.

Product Details

ISBN-13:	9781588525888
Publisher:	ALM Media Properties, LLC
Publication date:	11/28/2021
Sold by:	Barnes & Noble
Format:	eBook
Pages:	1114
File size:	2 MB

About the Author

Harry F. Kunselman
Harry F. Kunselman is a shareholder with the Pittsburgh and Beaver offices of the law firm of Strassburger McKenna Gutnick & Gefsky, is a former member of its Executive Committee, and former co-chair of the firm’s Litigation Practice Group. He is a member of the Academy of Trial Lawyers of Allegheny County, the 2015 recipient of the Allegheny County Bar Association’s Professionalism Award, was selected as a Pennsylvania Super Lawyer® for 2014 through 2019 and is recognized among The Best Lawyers in America®. Practicing in both state and federal courts, he is experienced in a wide range of litigation matters and commercial disputes of all kinds.  He focuses on civil and commercial litigation, including disputes involving minority shareholders, trade secrets, covenants not to compete, breach of contract, business torts, products liability, professional malpractice, and general liability tort cases. Mr. Kunselman provides up-to-date overviews, analysis and strategy through the lens of his significant experience as a practicing attorney in the field.

Table of Contents

PA COMMERCIAL LITIGATION

TABLE OF CONTENTS

Chapter 1: Pre-Suit Considerations
1-1 INTRODUCTION
1-2 CASE INVESTIGATION CONSIDERATIONS
1-2:1 Gathering and Reviewing Client Documents and Electronic Information
1-2:2 Considerations for Interviewing Witnesses
1-2:2.1 Ethical Considerations for Interviewing Witnesses
1-2:2.2 Discovery Considerations When Interviewing Witnesses
1-2:2.3 Discovery Considerations for Pre-Suit Communications with Experts
1-2:2.4 Discovery Considerations for Pre-Suit Communications with Third Party, Non-Lawyer Consultants
1-3 LITIGATION HOLD NOTICES
1-3:1 Federal Requirements for Litigation Holds
1-3:2 State Requirements for Litigation Holds
1-4 JURISDICTIONAL CONSIDERATIONS
1-4:1  Contractual Selection of Forum for Jurisdiction
1-4:2 Personal Jurisdiction
1-4:3 Federal Subject Matter Jurisdiction
1-4:4 Federal Diversity Jurisdiction
1-4:4.1 Determining Diversity for Corporations
1-4:4.2 Determining Diversity for Partnerships and Limited Liability Companies
1-4:5 Supplemental Jurisdiction (Claims Which Alone Would Not Otherwise Qualify for Federal Jurisdiction)
1-4:6 Removal to Federal Court by Defendant(s)
1-4:6.1 Procedure and Timing for Removal
1-4:6.2 Determining the Amount in Controversy for Purposes of Removal Based on Diversity Jurisdiction
1-5 ARBITRATION
1-5:1 Typical Differences Between Arbitration and Court
1-5:2 Contests Over Arbitrability
1-6 VENUE
1-6:1 Determining Venue in State Court
1-6:1.1 Venue As to Individuals
1-6:1.2  Venue As to Partnerships
1-6:1.3 Venue As to Corporations and Similar Entities
1-6:1.4 Venue As to Unincorporated Associations
1-6:1.5 Actions Against Two or More Defendants to Enforce Joint or Several Liability
1-6:1.6 Requesting a Change in Venue
1-6:1.6a Transfers of Venue for Convenience of Parties and Witnesses in State Court
1.6:1.6b Dismissal or Transfer Where Venue is Improper in State Court
1-6:2 Determining Venue in Federal Court
1-6:2.1 Venue Generally
1-6:2.2 Venue in Specific Kinds of Actions
1-6:2.3 Changing Venue in Federal Court
1-6:2.3a Transferring Venue for Convenience of Parties and Witnesses in Federal Court
1-6:2.3b Dismissal or Transfer Where Venue is Improper in Federal Court
1-6:3 Multi-County and Multi-District Litigation
1-6:3.1 Multi-County Litigation in State Court
1-6:3.2 Multi-District Litigation in Federal Court
1-6:4 Forum Selection Clauses
1-7 ANALYSIS 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
1-9 IS THE CLAIM AGAINST A LICENSED PROFESSIONAL?
1-9:1  Background on Certificates of Merit
1-9:2  Pleading Requirements
1-9:3  Certificate of Merit Requirement
1-9:4 Effect of Failure to File Certificate of Merit or Comply with Requirements

Chapter 2: Significant Differences Between State and Federal Practice
2-1 INTRODUCTION
2-2 PLEADING DIFFERENCES
2-2:1 Fact Pleading vs. Notice Pleading
2-2:1.1 State Court—Fact Pleading
2-2:1.2 Federal Court—Notice Pleading
2-2:2 Commencement of Action
2-2:2.1 Real Party in Interest—Naming Unknown Defendants with a “Doe” Designation in State Court
2-2:2.2 Real Party in Interest—Naming Unknown Defendants with a “Doe” Designation in Federal Court
2-2:3 Time for Pleadings
2-2:4 Preliminary Objections and Motions to Dismiss
2-2:5 Signing of Pleadings; Sanctions under State Rule 1023.1 and Federal Rule 11
2-3 SERVICE OF PROCESS
2-3:1 Manner and Time of Service of Process in State Court
2-3:2 Manner and Time of Service of Process in Federal Court
2-4 COUNTERCLAIMS AND THIRD-PARTY CLAIMS
2-4:1 Counterclaims
2-4:2 Third-Party Claims
2-5 AMENDED PLEADINGS
2-5:1 State Court
2-5:2 Federal Court
2-6 DISCOVERY DIFFERENCES
2-6:1 Initial Disclosures
2-6:2 Electronic Discovery
2-6:3 Expert Witness Discovery
2-6:4 Discovery Limitations
2-7 ALTERNATIVE DISPUTE RESOLUTION
2-8 SUMMARY JUDGMENT DIFFERENCES
2-9 INDIVIDUAL VS. GENERAL CALENDARS

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

Chapter 4: Breach of Contract and Unjust Enrichment
4-1 INTRODUCTION
4-2 SALES OF GOODS
4-3 SALES OF REAL ESTATE AND OTHER CONTRACTS
4-4 ELEMENTS OF THE CLAIM
4-4:1 Choice of Law and Forum
4-4:2 Express vs. Implied Contracts and Oral Contracts
4-4:3 Certainty and Subject Matter
4-4:4 Offer and Acceptance
4-4:5 Necessity for Writing (Statute of Frauds)
4-4:6 Consideration and the Pennsylvania Uniform Written Obligations Act
4-4:7 Breach of Warranty
4-4:7.1 Breach of Express Warranty
4-4:7.2 Breach of Implied Warranty
4-4:7.2a Implied Warranty of Merchantability
4-4:7.2b Implied Warranty of Fitness for Particular Purpose
4-4:7.2c Implied Warranty of Habitability
4-4:7.3 Disclaimer and Limitations on Warranties
4-4:8 Promissory Estoppel
4-4:9 Third Party Beneficiary Claims
4-4:10 Formation of Contracts Electronically
4-4:10.1 Formation of Contracts on the Internet
4-4:10.1a “Clickwrap” Agreements
4-4:10.1b “Browsewrap” Agreements
4-4:10.2 Validity of Electronic Signatures
4-4:10.2a The Pennsylvania Uniform Electronic Transactions Act
4-4:10.2b The Electronic Signatures in Global and National Commerce Act
4-5 LIABILITY DEFENSES
4-5:1 Absence of Any of the Necessary Elements
4-5:2 Non-Occurrence or Failure of Condition
4-5:3 Failure to Perform; Anticipatory Breach; Adequate Assurances
4-5:3.1 Failure to Perform
4-5:3.2 Anticipatory Breach
4-5:3.3 Request for Adequate Assurances
4-5:4 Force Majeure
4-5:5 Waiver and Estoppel
4-5:6 Impossibility of Performance, Illegality and In Pari Delicto
4-5:6.1 Impossibility of Performance
4-5:6.2 Illegality
4-5:6.3 In Pari Delicto
4-5:7 Integration Clauses and the Parol Evidence Rule
4-5:8 Statute of Limitations and Tolling Principles
4-5:8.1 Statutes of Limitations in General
4-5:8.2 Tolling Principles
4-5:9 Equitable Defenses—Laches, Unclean Hands and Adequacy of Remedy at Law
4-5:9.1 Laches
4-5:9.2 Unclean Hands
4-5:9.3 Adequate Remedy at Law
4-6 REMEDIES
4-6:1 Damages
4-6:1.1 Direct Damages
4-6:1.2 Indirect or Consequential Damages
4-6:1.3 Loss of Profits
4-6:1.4 Liquidated Damages
4-6:1.5 Pre- and Post-Judgment Interest
4-6:1.6 Attorney’s Fees
4-6:1.7 Punitive or Exemplary Damages in Contract Cases
4-6:1.8 Disgorgement
4-6:2 Injunctive Relief
4-6:2.1 Specific Performance
4-6:2.2 Rescission
4-7 LIMITATIONS ON REMEDIES
4-7:1 Disclaimers and Contractual Limitations on Damages
4-7:1.1 Limitation Clauses vs. Exculpatory Clauses
4-7:1.2 Negligent vs. Grossly Negligent vs. Reckless Conduct and Impact on Limitation Clauses
4-7:2 Liquidated Damages
4-8 UNJUST ENRICHMENT
4-8:1  Introduction
4-8:2  Elements of the Claim
4-8:3  Pleading Breach of Contract and Unjust Enrichment in the Alternative
4-8:4 Remedy When Unjust Enrichment is Shown
4-8:5 Statute of Limitations on Unjust Enrichment

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

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

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

Chapter 8: Business Torts
8-1 TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS
8-1:1 Elements of Tortious Interference
8-1:2 Defenses and Privileges
8-2 FRAUD, CONCEALMENT, AND MISREPRESENTATION
8-2:1 Elements of Common Law Claims
8-2:2 Civil Claims under the Racketeer Influenced and Corrupt Organizations Act
8-2:3 Heightened Pleading Requirements for Fraud Based Claims
8-3 TRADE LIBEL/COMMERCIAL DISPARAGEMENT
8-3:1 Elements of Trade Libel/Commercial Disparagement
8-3:2 Defenses
8-4 UNFAIR COMPETITION
8-5 MISAPPROPRIATION OF TRADE SECRETS
8-5:1 Overview
8-5:2 Statutory Law
8-5:2.1 The Pennsylvania Uniform Trade Secrets Act
8-5:2.2 The Defend Trade Secrets Act of 2016
8-5:3 Considerations Presented by Computer Technology
8-5:4 Preemption by the Pennsylvania Uniform Trade Secrets Act
8-6 BREACH OF FIDUCIARY DUTY
8-7 AIDING AND ABETTING AND CONCERTED TORTIOUS CONDUCT
8-8 CIVIL CONSPIRACY
8-8:1 Elements of Civil Conspiracy
8-8:2 Defenses and Privileges
8-9 WRONGFUL USE OF CIVIL PROCEEDINGS AND ABUSE OF PROCESS
8-9:1 Wrongful Use of Civil Proceedings
8-9:2 Abuse of Process
8-10 OTHER TORT DEFENSES
8-10:1 Economic Loss Doctrine
8-10:2 Gist of the Action Doctrine
8-10:3 Statutes of Limitations
8-11 PUNITIVE DAMAGES

Chapter 9: Claims By and Against Shareholders of Corporations
9-1 MINORITY SHAREHOLDER RIGHTS
9-1:1 Duties of Majority Shareholders to Minority
9-1:2 Right to Inspect Corporate Books and Records
9-2 OPPRESSION
9-2:1 Grounds for Action
9-2:2 Remedies
9-2:2.1 Dissolution
9-2:2.2 Appointment of Custodian
9-2:2.3 Payment of Fair Value of Shares
9-2:2.4 Punitive Damages
9-3 DISSENTER’S RIGHTS
9-3:1 Introduction
9-3:2 Procedure to Invoke Dissenter’s Rights
9-3:3 Valuation Proceeding
9-3:4 Exclusivity of Dissenter’s Rights Remedy
9-4 DERIVATIVE ACTIONS
9-4:1 Grounds for Action
9-4:2 The Roles of the Board of Directors and Special Litigation Committee
9-4:3 Procedural Prerequisites
9-4:3.1  Introduction
9-4:3.2 Shareholder Status and Demand
9-4:3.3 Ownership of Interest or Serious Injustice
9-4:3.4 Adequacy of Representation
9-4:3.5 Corporation as Party
9-4:3.6 Posting of Security
9-4:4 Defenses
9-4:4.1 General
9-4:4.2 Business Judgment Rule
9-4:5 Remedies
9-5 PIERCING THE CORPORATE VEIL—SHAREHOLDER LIABILITY
9-5:1 Introduction
9-5:2 Bases and Theories of Veil-Piercing
9-5:2.1 Alter Ego Theory
9-5:2.2 Enterprise Liability or Single Entity Theory

Chapter 10: Director and Officer Liability
10-1 INTRODUCTION
10-2 FIDUCIARY RELATION
10-3 INDEMNIFICATION RIGHTS
10-4 BUSINESS JUDGMENT RULE
10-5 GROUNDS FOR LIABILITY
10-5:1 Breach of Fiduciary Duty in General
10-5:2 Self-Dealing
10-5:3 Usurpation of Corporate Opportunity
10-5:4 Fiduciary Duty to Creditors
10-5:5 Participation Theory
10-5:6 Deepening Insolvency

Chapter 11: Partnership and Limited Liability Company Disputes
11-1 INTRODUCTION
11-2 PARTNERSHIP DISPUTES
11-2:1 Creation and Nature of a Partnership
11-2:2 Liabilities of a Partnership and of Partners
11-2:2.1 Relationship of Partners to Each Other and to the Partnership
11-2:2.2 Relationship of Partners to Third Persons
11-2:2.3  Partnership Liability for Partner Actions
11-2:2.4 Partner Liability for Partnership Obligations
11-2:2.4a General Partner Liability
11-2:2.4b Limited Partner Liability
11-2:2.5 “Purported Partnership” Formerly Known as Partnership By Estoppel
11-2:3 Rights of Partners
11-2:3.1 Rights to Manage or Govern
11-2:3.2 Use of Property; Distributions; Transferable Interests
11-2:3.3 Indemnification
11-2:3.4 Access to Records and Information
11-2:4 Rights of a Creditor Vis-à-Vis Transferable Interest
11-2:5 Dissociation of a Partner
11-2:6 Legal Actions Involving Partnerships and Partners
11-2:6.1 Claims Between the Partnership and Third Parties
11-2:6.2 Claims Between and Among Partners
11-2:6.2a Breach of Contract
11-2:6.2b Breach of Fiduciary Duty and Other Torts
11-2:6.2c Action for Accounting
11-2:6.3 Claims Between the Partnership and Partners
11-2:7 Derivate Actions by Limited Partners
11-3 LIMITED LIABILITY COMPANY (LLC) DISPUTES
11-3:1 Creation and Nature of a Limited Liability Company
11-3:2 Relation of Members to Each Other and to the LLC
11-3:3 The Role of Manager and a Managing Member
11-3:3.1 Member-Managed LLCs
11-3:3.2 Manager-Managed LLCs
11-3:3.3 Duties of Managers
11-3:4 Relationship of Members to Third Persons
11-3:5 Company Liability for Member Actions
11-3:6 Member or Manager Liability for Company Obligations
11-3:7 Rights of Members and Managers Vis-à-Vis the LLC
11-3:7.1 Rights to Distributions and Reimbursement
11-3:7.2  Rights to Indemnification
11-3:7.3  Rights to Records and Information
11-3:8 Rights of Creditors Vis-à-Vis the Transferable Interest
11-3:9 Dissociation of Members from Limited Liability Companies
11-3:10 Legal Actions Involving Limited Liability Companies, Members and Managers

Chapter 12: Confessions of Judgment and Opening or Striking Confessed Judgments
12-1 INTRODUCTION
12-2 WARRANT OR POWER OF ATTORNEY
12-3 PROCEDURE TO CONFESS JUDGMENT
12-4 OPENING OR STRIKING CONFESSED JUDGMENT
12-4:1 Procedure—Petition to Open or Strike
12-4:2 Grounds for Opening or Striking Judgment
12-4:2.1 Lack of Jurisdiction
12-4:2.2 Absence of Authority
12-4:2.3 Defense to Merits of Judgment Holder’s Claim
12-4:2.4 Improper Amount
12-4:2.5 Procedural Irregularities in Confessing Judgment
12-5 ENFORCING CONFESSED JUDGMENTS

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

Chapter 14: Mechanics’ Liens
14-1 THE PENNSYLVANIA MECHANICS’ LIEN LAW OF 1963
14-2 CIRCUMSTANCES GIVING RISE TO LIEN
14-2:1 The Parties
14-2:1.1 The Owner
14-2:1.2 The Contractor
14-2:1.3 The Subcontractor
14-2:2 Who Can Lien?
14-2:3 What Can be Liened?
14-2:4 What Cannot be Liened?
14-2:5 Basis for Lien
14-2:5.1 Labor
14-2:5.2 Materials
14-2:5.3 Erection and Construction
14-2:5.4 Alteration and Repair
14-3 PROCEDURE TO OBTAIN LIEN
14-3:1 Formal Notice of Intention to File Lien by Subcontractor
14-3:1.1 State Construction Notices Directory
14-3:1.2 Notice of Commencement
14-3:1.3 Notice of Furnishing
14-3:1.4 Notice of Completion
14-3:1.5 Subcontractor Protections
14-3:1.6 Duties and Remedies of Owner and Contractor on Notice of Intention to File or on Filing of Claim by Subcontractor
14-3:2 Filing Claim and Perfection of Lien
14-3:2.1 Time for Filing
14-3:2.2 Contents of Claim
14-3:2.3 Service of Claim
14-3:2.4 Contesting Claim
14-3:2.5 Priority of Claim
14-4 DEFENSES TO CLAIM
14-4:1 Waiver of Liens
14-4:2 Delay; Failure to Prosecute
14-4:3 Payment
14-4:4 Failure to Comply with Notice, Filing, or Service Requirements
14-4:5 Right of Owner to Limit Claims to Unpaid Balance of Contract Price
14-5 ENFORCEMENT OF LIEN
14-5:1 Obtaining Judgment on Claim
14-5:2 The Complaint
14-5:3 Responsive Pleadings
14-5:3.1 Preliminary Objections
14-5:3.2 Answer
14-5:3.3 Prohibition Against Joinder and Counterclaims
14-5:4 Judgment
14-5:5 Execution

Chapter 15: Collection of Judgments
15-1 INTRODUCTION
15-2 STAYING EXECUTION
15-2:1 Posting Security to Stay Execution
15-2:2 Requesting Stay or Supersedeas by Court Order
15-3 EFFECT OF JUDGMENT AS LIEN
15-3:1 Lien on Real Estate
15-3:2 Lien on Non-Real Estate Assets
15-4 WRIT OF EXECUTION
15-4:1 State Court
15-4:2 Federal Court
15-5 GARNISHMENT
15-5:1 Procedure for Garnishment
15-5:2 Interrogatories in Aid of Execution and “Pleading Practice”
15-5:3 Contested Garnishments
15-5:4 Releasing Property from Levy or Attachment
15-5:5 Third Party Claims to Property Levied Upon— Sheriff’s Interpleader
15-6 DISCOVERY IN AID OF EXECUTION
15-7 SHERIFF’S SALES
15-7:1 Real Estate
15-7:2 Other Types of Property
15-8 ENJOINING DEBTOR FROM TRANSFERRING PROPERTY AND OTHER SUPPLEMENTARY RELIEF IN AID OF EXECUTION

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

Chapter 17: Indemnification and Contribution
17-1 INDEMNIFICATION
17-2 CONTRACTUAL INDEMNIFICATION
17-2:1 Contractual Indemnification for Indemnitee’s Negligence
17-2:2 Stricter Construction for Gross Negligence
17-2:3 Contractual Indemnification for Active and Passive Negligence
17-3 PASS-THROUGH INDEMNIFICATION
17-4 DUTY TO DEFEND; FAULTLESS INDEMNITEES
17-5 SETTLEMENT AND INDEMNIFICATION
17-6 ANTI-INDEMNITY STATUTES
17-7 COMMON LAW INDEMNIFICATION
17-8 COMPARATIVE NEGLIGENCE AND CONTRIBUTION
17-9 RAISING CLAIMS FOR INDEMNIFICATION

Chapter 18: Construction Related Claims
18-1 INTRODUCTION
18-2 CONTRACT FORMATION
18-3 BREACH OF CONTRACT
18-3:1 Arbitration and Alternative Dispute Resolution
18-3:2 Payment Disputes
18-3:3 Defective Material and Workmanship
18-3:4 Delay Claims
18-3:4.1 Introduction
18-3:4.2 Excusable Delay
18-3:4.3 Inexcusable Delays
18-3:4.4 Delays Caused by Owner—Compensable Delays
18-3:4.5 Concurrent Delay
18-3:4.6 Liquidated Damages for Delay and “No Damages for Delay”
18-3:5 Professional Negligence Claims
18-3:6 Negligent Representation—Bilt-Rite Contractors, Inc. v. Architectural Studio
18-4 UNJUST ENRICHMENT
18-5 DEFENSES AND STATUTE OF REPOSE
18-6 COMMON LAW DAMAGES AND REMEDIES
18-6:1 Contractually Defined Remedies
18-6:2 Measuring Owner Damages
18-6:3 Measuring Contractor Damages
18-7 THE PENNSYLVANIA CONTRACTOR AND SUBCONTRACTOR PAYMENT ACT
18-7:1 Application
18-7:2 Owner’s Payment Obligations
18-7:3 Contractor’s Payment Obligations
18-7:4 CASPA Remedies
18-7:5 CASPA Defenses
18-8 FEDERAL CONSTRUCTION PROJECTS
18-8:1 The Miller Act
18-8:1.1 Bonding Requirements
18-8:1.2 Claims on Payment Bonds
18-8:2 Contractor Payment Claims Against the Federal Government
18-9 STATE AND LOCAL CONSTRUCTION PROJECTS
18-9:1 Commonwealth Procurement Code
18-9:1.1 Bonding Requirements
18-9:1.2 Claims on Payment Bonds
18-9:1.3 Disputes Over Awarding of Bids
18-9:1.4 Payment Claims Against the Commonwealth
18-9:2 The General Procurement Code
18-9:3 The Prompt Payment Act
18-9:3.1 Entitlement to Timely Payment
18-9:3.2 Good Faith Withholding of Payment
18-9:3.3 Penalty and Attorney’s Fees
18-9:3.4 Retainage and Final Payment
18-9:3.5 Statute of Limitations for Claims under Prompt Payment Act
18-10 MECHANICS LIENS
18-11 SURETYSHIP CLAIMS
18-11:1 Performance Bonds
18-11:2 Payment Bonds
18-11:3 The Penal Sum and Multiple Claims
18-11:4 Indemnification Rights of Surety
18-11:5 Defenses Available to a Surety
18-11:5.1 Scope of Undertaking
18-11:5.2 Defenses of Principal
18-11:5.3 Statute of Limitations
18-11:5.4 Failure to Comply with Notice Requirement
18-11:5.5 Changes in Payment
18-11:5.6 Material Alteration of Surety’s Risk
18-11:5.7 Failure to Satisfy a Condition Precedent
18-12 INSURANCE AND CONSTRUCTION CLAIMS

Chapter 19: Actions in Replevin
19-1 INTRODUCTION
19-2 ELEMENTS; DEFENSES AND COUNTERCLAIM
19-3 PRESUMPTIONS AND BURDEN OF PROOF
19-4 PROCEDURE
19-4:1 Commencement of Action
19-4:2 Obtaining Possession Before Judgment - Writ of Seizure
19-4:2.1 Writ of Seizure with Notice
19-4:2.2 Ex Parte Writ of Seizure (Without Notice)
19-4:3 Service/Execution of Writ of Seizure
19-4:4 Posting of Bond and Counterbond
19-4:5 Disposition of Property Depending on Status ofBond and Counterbond
19-5 TRIAL AND JUDGMENT
19-6 ENFORCEMENT OF JUDGMENT

Chapter 20: Actions to Quiet Title
20-1  INTRODUCTION
20-2 PROCEDURE IN GENERAL
20-3 COMPLAINT; VENUE; NO JURY TRIAL
20-4 SERVICE OF PROCESS AND UNIDENTIFIABLE DEFENDANTS
20-5 SCOPE OF ACTIONS TO QUIET TITLE
20-6 THE ROLE OF POSSESSION IN DETERMINING THE FORM OF ACTION, THE CLAIMS ASSERTED, AND THE PROCEDURE TO BE FOLLOWED
20-6:1 Claims Under Rule 1061(b)(1)—Ejectment or Not?
20-6:2 Actions Under Rule 1061(b)(2)—Quieting Title
20-6:3 What Constitutes Possession?
20-7 BURDEN OF PROOF
20-8 FORM OF JUDGMENT
20-9 DEFENSES

Chapter 21: Oil and Gas Litigation
21-1 INTRODUCTION
21-1:1 Oil and Gas Rights
21-1:2 Leases and Other Agreements Affecting Oil and Gas Rights
21-1:2.1 Oil and Gas Production Leases
21-1:2.2 Oil and Gas Storage Agreements
21-1:2.3 Ancillary Agreements, Damage Waivers, Roadway Agreements, Construction Licenses, Right of Ways, and Easements
21-2 OIL AND GAS LEASE LITIGATION
21-2:1 General Rules of Oil and Gas Lease Interpretation
21-2:2 Lease Invalidation and Lease Termination
21-2:2.1 Framework for Analyzing Lease Severability
21-2:2.2 Failure to Produce Gas
21-2:2.3 Underground Storage
21-2:3 Termination Due to Other Material Breaches of the Lease
21-2:4 Payment Disputes
21-2:4.1 Up-Front Bonus Disputes
21-2:4.2 Disputes Regarding Royalty Amounts
21-3 OIL AND GAS QUIET TITLE ACTIONS
21-4 TORTS
21-5 EMINENT DOMAIN OF PIPELINES AND STORAGE EASEMENTS
21-5:1 Intrastate Natural Gas Transmission and Storage
21-5:2 Interstate Gas Transmission and Storage

Chapter 22: Disputes Relating to Trademarks, Trade Names, and Unfair Competition
22-1 INTRODUCTION
22-2 NATURE OF TRADEMARKS, SERVICE MARKS AND TRADE NAMES
22-3 FEDERAL TRADEMARK INFRINGEMENT—THE LANHAM ACT
22-3:1 Elements of Infringement in General
22-3:1.1 Infringement of Registered Marks
22-3:1.2 Infringement of Unregistered Marks
22-3:2 The Requirement of Validity and Legal Protectability
22-3:3 The Requirement of Ownership
22-3:4 The Requirement of Likelihood of Confusion
22-3:5 Contributory Infringement
22-3:6 Remedies
22-3:6.1 Damages
22-3:6.2 Injunctive Relief
22-3:6.2a Injunctive Relief With Notice
22-3:6.2b Ex Parte Seizure
22-3:7 Defenses
22-3:7.1 Fraud in the Application for Registration of the Mark
22-3:7.2 Abandonment
22-3:7.3 Fair Use
22-3:7.3a Nominative Fair Use
22-3:7.3b Classic Fair Use
22-3:7.3c Effect on Burden of Proof of Nominative or Classic Fair Use
22-3:7.4 Functionality
22-3:7.5 Unclean Hands
22-3:7.6 Laches
22-3:7.7 Cancellation on Grounds of Genericness or Descriptiveness
22-3:7.8 Statute of Limitations
22-4 TRADE DRESS PROTECTION
22-5 DILUTION
22-5:1 What is Dilution?
22-5:2 Injunctive Relief for Dilution
22-5:3 Damages
22-5:4 Defenses to Dilution Claims
22-6 UNFAIR COMPETITION
22-6:1 Statutory Unfair Competition
22-6:2 The Anti-Cybersquatting Consumer Protection Act
22-6:3 Common Law Unfair Competition
22-6:4 Examples of Unfair Competition
22-7 FALSE ADVERTISING
22-7:1 Elements of False Advertising
22-7:2 Remedies for False Advertising
22-8 PENNSYLVANIA TRADEMARK AND UNFAIR COMPETITION CLAIMS
22-8:1 State Trademark Infringement
22-8:2 Dilution
22-8:3 Remedies
22-8:4 Trade Names
22-8:5 State Law Defenses

Chapter 23: Compelling and Resisting Arbitration
23-1 ARBITRATION AS A FORM OF ALTERNATIVE DISPUTE RESOLUTION
23-2 PENNSYLVANIA LAW GOVERNING ARBITRATION
23-2:1 Arbitration Agreements Made On or After July 1, 2019 – The Pennsylvania Revised Statutory Arbitration Act
23-2:1.1 Ability to Waive Provisions of the RSAA
23-2:1.2 Procedure for Initiating Arbitration Under the RSAA
23-2:1.3 Procedure for Compelling or Resisting Arbitration Under the RSAA
23-2:1.4 Who Decides Certain Issues—the Court or the Arbitrator(s)?
23-2:1.5 Grounds for Validity or Invalidity of Agreements to Arbitrate
23-2:1.6 Stay or Partial Stay of Court Action Pending Arbitration
23-2:1.7 Provisional Remedies to Facilitate Arbitration Process
23-2:1.8 Consolidation of Multiple Arbitration Proceedings
23-2:1.9 Qualification and Disqualification of Arbitrators; Arbitrator Disclosures
23-2:1.10 Appointment of Arbitrator(s)
23-2:1.11 Powers of Arbitrators
23-2:1.11a Substantive Powers of Arbitrators
23-2:1.11b Procedural Powers of Arbitrators
23-2:1.11c Powers of Arbitrators to Issue Subpoenas and Govern Discovery
23-2:1.12 Arbitration Awards
23-2:1.13 Post-Award Relief By the Arbitrator or the Court
23-2:1.14 Confirmation of an Award by the Court
23-2:1.15 Vacating an Award by the Court
23-2:1.16 Modifying or Correcting Awards by the Court
23-2:1.17 Judgment on the Award
23-2:1.18 Appeals from Court Determinations of Arbitrability
23-2:1.19 Protections for Arbitrators
23-2:2 Arbitration Agreements Entered Into Before July 1, 2019—The Pennsylvania Uniform Arbitration Act and Common Law Arbitration
23-2:2.1 “Common Law” vs. “Statutory” Arbitration
23-2:2.2 Procedure for Initiating Arbitration
23-2:2.3 Waiver of the Right to Arbitrate
23-2:2.4 Procedure for Compelling Arbitration
23-2:2.5 Venue for Compelling or Staying Arbitration
23-2:2.5a Venue Where Court Action is Already Pending As of Time of Petition
23-2:2.5b Venue Where Court Action is Not Already Pending As of Time of Petition
23-2:2.6 Who Decides Certain Issues—the Court or the Arbitrator?
23-2:2.7 Grounds for Compelling or Resisting Arbitration
23-2:2.8 Appointment of Arbitrator(s)
23-2:2.9 Powers of Arbitrators under Pre-July 1, 2019 Agreements
23-2:2.9a Procedural Powers of Arbitrators
23-2:2.9b Powers of Arbitrators to Issue Subpoenas
23-2:2.10 Right to Be Represented by Counsel
23-2:2.11 Arbitration Award
23-2:2.12 Fees and Expenses of Arbitration
23-2:2.13 Post-Award Relief by the Arbitrator(s)
23-2:2.14 Confirmation of Award by the Court
23-2:2.15 Vacating an Award by the Court
23-2:2.16 Modification or Correction of Award by the Court
23-2:2.17 Entering Judgment on the Award
23-2:2.18 Appeals
23-3 THE FEDERAL ARBITRATION ACT
23-3:1 Applicability and Policy of the Federal Arbitration Act
23-3:2 FAA Preemption
23-3:3 Procedure for Compelling Arbitration under the FAA
23-3:4 Federal Jurisdiction over Motions to Compel Arbitration
23-3:5 Jurisdiction over Pendent State Law Claims
23-3:6 Venue for Motions to Compel and/or Stay or Prevent Arbitration
23-3:7 Who Decides Certain Issues—the Court or the Arbitrator?
23-3:7.1 Matters for the Court to Decide
23-3:7.2 Matters for the Arbitrator to Decide
23-3:8 Standard for Reviewing Motion to Compel Arbitration
23-3:9 Existence vs. Scope of Agreement to Arbitrate
23-3:10 Stay of Court Proceedings Pending Arbitration
23-3:11 Enforceability of a Contractual Provision for Non-Binding Arbitration
23-3:12 Appointment of Arbitrator.
23-3:13 Timeliness of Motion to Compel Arbitration
23-3:14 Waiver of Right to Compel Arbitration
23-3:15 Power of Arbitrator(s) to Compel Attendance of Witnesses
23-3:16 Enforcing an Arbitration Award under the FAA
23-3:17 Vacating an Award
23-3:17.1 Evident Partiality
23-3:17.2 Arbitrator Misconduct
23-3:17.3 Exceeding Powers
23-3:18 Modification or Correction of an Award under the FAA
23-3:19 Practice on Motions to Confirm, Vacate, Modify or Correct under the FAA
23-3:20 Appeals under the FAA