FEBRUARY 2016
PENNSYLVANIA BAR
EXAMINATION
Essay Questions and Examiners’ Analyses
and
Performance Test
Pennsylvania Board of Law Examiners
601 Commonwealth Avenue, Suite 3600
P.O. Box 62535
Harrisburg, PA 17106-2535
(717) 231-3350
www.pabarexam.org
©2016 Pennsylvania Board of Law Examiners
Table of Contents
Index ..................................................................................................................................................ii
Question No. 1: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines .............. 1
Question No. 2: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............10
Question No. 3: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............20
Question No. 4: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............27
Question No. 5: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............39
Question No. 6: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............48
Performance Test and Grading Guidelines ........................................................................................56
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Index
Question No. 1
1. Decedents’ Estates: advancement
2. Decedents’ Estates: intestacy
3. Professional Responsibility: conflict of interest
4. Federal Income Tax: involuntary conversion
Question No. 2
1. Torts: negligence
2. Civil Procedure: joinder
3. Evidence: offer to pay medical expenses, compromise and settlement
4. Civil Procedure: discovery- medical information
Question No. 3
1. Criminal Law: robbery
2. Criminal Law: miranda warnings
3. Evidence: hearsay – prior testimony
4. Family Law: special relief – court equitable power
Question No. 4
1. Constitutional Law: commercial speech
2. Employment Law: discrimination: *after discovered evidence
3. Civil Procedure: venue
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Question No. 5
1(a) & (b). Property: fee simple determinable with possibility of reverter
2. Contracts: frustration of purpose
3(a). Property: constructive eviction
3(b). Property: implied warranty of habitability landlord/tenant
4. Property: tenancy by Entireties, tenancy in common
Question No. 6
1(a). Corporations: fiduciary duty, corporate opportunity
1(b). Corporations: remedy breach of fiduciary duty
2. U.C.C. Art. III: implied warranty merchantability, implied warranty fitness for particular
purpose
3. Conflict of Law: situs rule
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Question No. 1
Angela was a retired widow living in E County, Pennsylvania. In November 2014, she
wanted to make a will. Angela’s only child, David, referred her to Larry, an E County estate
lawyer, to draft her will. David is married to Jane, and they have three adult children.
Angela was quite impressed by Larry, who agreed to meet her in her home. Angela
asked Larry if he could do other legal work for her. Larry replied, “It would have to be worth
my while. In your will you could give something to anyone.” Angela’s housekeeper overheard
the entire conversation. Angela paid Larry a reasonable fee to draft the will and then told Larry
he could add a bequest to himself in the will. She instructed Larry to name David as executor.
The distribution clause of the will stated:
I give my attorney Larry $10,000. All the remainder of my estate, real and
personal, I give to my son David.
The will was validly executed in December of 2014. Soon thereafter Angela became
very ill and died in March of 2015. She had not requested any other legal services from Larry
after the will was executed. Her will was admitted to probate with Larry acting as attorney.
Larry charged reasonable fees for handling the estate. Larry distributed the $10,000 to himself
and the remainder to David after all taxes and costs were paid in August 2015.
In October 2015, Michael, a son of David and Jane, turned 21. For Michael’s birthday,
David gave him the keys and signed title to a sports car valued at $25,000 at that time, which
David had inherited from Angela’s estate, saying, “I was going give this to you in my will when
I die, but you might as well enjoy it now.” Michael later wrote an email from his college
dormitory thanking David for the car and writing that he was glad David “was giving him part of
his inheritance now.” David printed the email and showed it to Jane. Jane kept the email.
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In November 2015, a home David and Jane had purchased together in 2005 with cash,
$75,000 of which was the value of the structure, was totally destroyed by fire. They had used it
as a primary residence for the first three years after purchasing the home, but it later became their
vacation home. They added no significant improvements to it, nor did they ever rent it out; they
kept it only for their personal use. The insurance on the home was based on the current structure
value of $200,000, and in December 2015 a check for that amount was issued jointly to David
and Jane. They deposited the check in a joint savings account.
In late December 2015, David died intestate. His net individual estate was in the high six
figures, including his inheritance from Angela. Jane was appointed Administrator of David’s
estate. Jane’s attorney, Mary, explained the law regarding intestate estates to Jane, and they
agreed that David’s estate would be distributed in accordance with Pennsylvania’s rules of
intestate distribution. Jane told Mary that David had given Michael the sports car. Jane then
showed Michael’s email to Mary. Jane asked if an adjustment could be made as a result of the
gift when calculating the value and intestate distribution of David’s estate.
1. As a result of the gift of the car by David to Michael could any adjustment be
made to the value or distribution of David’s estate?
2. Assume for this issue the car had not been gifted to Michael and was still a part of
David’s estate. How will David’s estate be distributed proportionately to his
intestate heir(s)?
3. Shortly after David’s death, Angela’s housekeeper called Jane to tell her about the
conversation she had overheard between Larry and Angela. Jane then asked Mary
about Larry’s $10,000 inheritance. Assuming all the facts stated above as true,
did Larry violate any of the Pennsylvania Rules of Professional Conduct in
connection with the bequest to himself in Angela’s will?
4. David and Jane regularly filed joint federal tax returns on a cash basis. Assuming
that Jane again files jointly, as is permitted by law for the year of a spouse’s
death, and that Jane chooses not to rebuild or replace the vacation home, what are
the 2015 federal income tax effects to David and Jane regarding the $200,000
insurance payment for the destruction of their vacation home?
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Question No. 1: Examiner’s Analysis
1. If Jane seeks an adjustment, the value of the car will likely be determined to be an
advancement on Michael’s share of David’s estate, and its value will be added to the
value of David’s intestate estate and deducted from Michael’s share.
The car will likely be considered an advancement against Michael’s share in David’s
estate. “An advancement . . . is an irrevocable gift by a parent to a child in anticipation of such
child’s future share of the parent’s estate.” Laughlin Estate, 354 Pa. 43, 47, 46 A.2d 477, 479
(1946) (further citation omitted). The Pennsylvania Probate Estates and Fiduciaries (PEF) Code
states, in relevant part, the following:
If a person dies intestate as to all or any part of his estate, property
which he gave in his lifetime to an heir is treated as an
advancement against the latter’s share of the estate only if declared
in a writing by the decedent or acknowledged in writing by the heir
to be an advancement.
20 Pa. C.S. § 2109.1. This statute was enacted in 1976 as a change in previous law which
presumed such a substantial gift from a decedent to one of his children was an advancement.
The statute now requires a writing to designate the gift as an advancement. 20 Pa.C.S. § 2109.1,
Jt. St. Govt. Comm. Cmt. 1976; DANNY R. VEILLEUX, J.D., 32 Standard Pa. Practice 2nd § 154:11
(Thompson Reuters 2015) (citation omitted). The burden of proof is on the person asserting that
a gift was an advancement. In re Clark’s Estate, 303 Pa. 538, 544, 154 A. 919, 921 (1931); see
also VEILLEUX, supra 154.11. The statute does not state that a signature or other formality is
required to define “a writing” for its purposes. See 20 Pa.C.S. § 2109.1.
David died intestate. He was the sole owner of the car after it was distributed to him with
all the remainder of Angela’s estate in accordance with Angela’s will. He gave the car to his son
Michael on Michael’s 21st birthday stating that Michael “may as well enjoy [the car] now”
instead of receiving it as a bequest from David’s estate later. David’s statement would not alone
have had the effect of making the car an advancement on Michael’s inheritance. Jane has the
burden of proof to show that the car was an advancement. Mary should advise Jane that she
could assert that the car was an advancement on Michael’s share of David’s estate as Jane has
Michael’s email thanking David and repeating David’s statement to him that he might as well
enjoy the car now instead of by bequest in his will when David died. This email would be a
writing showing that the gift of the car to Michael was an advancement. Thus Michael
“acknowledged in writing” the intent of David to treat the gift of the car as something he would
have bequeathed to Michael had David died still owning it. Accordingly, Michael’s email to
David satisfied the requirements of the statute to make the gift of the car an advancement on
Michael’s share of David’s intestate estate.
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The PEF Code also provides that “the property advanced is valued as of the time the heir
came into possession or enjoyment of the property or as of the time of the death of the decedent,
whichever first occurs.” 20 Pa.C.S. § 2109.1. The facts provide that $25,000 was the value of
the car when David gave it to Michael. The $25,000 value is then added to the value of David’s
solely owned assets in his estate; increasing the amount of his estate by that amount. See
Laughlin Estate, 354 Pa. at 48 46 A.2d at 479, citing inter alia, McConomy’s Estate 170 Pa. 140,
32 A. 608 (1895). The concept of adding the value of an advancement to an estate for
distribution is known as “hotchpot,” which is defined at length in Laughlin Estate as follows:
Advancements are to be treated as if repayment had been made to
the estate, the total divided among the heirs or beneficiaries, and
the advancements deducted from the shares of those advanced.
The whole is placed in hotchpot, the advancements added and the
total divided . . . . The doctrine of hotchpot is of ancient origin. . . .
It constitutes a blending or throwing into a common lot or stock of
property for equality of division. . . . The doctrine rests on the
presumed desire of an ancestor to equalize the estate among his
heirs, not only as to the property left at the time of his death, but as
to all property that came from him, so that one child shall not be
preferred to another child in the final settlement of his estate.
Laughlin Estate, 354 Pa. at 48-49, 46 A.2d at 479-80 (citations omitted).
Accordingly, the value of David’s estate would be increased by $25,000, and Michael’s
share of the increased estate value would be reduced by the $25,000 value of the car.
2. David’s estate will be distributed to his spouse, Jane, and their three children. Jane
will receive the first $30,000 of the estate and 50% of the remaining estate, and the
three children will split the other half in equal 1/3 shares.
Where the decedent dies intestate and has surviving issue “all of whom are issue of the
surviving spouse also, the [surviving spouse receives] the first $30,000 plus one-half of the
balance of the intestate estate.” 20 Pa. C.S. § 2102. The facts provide that David died without
having made a will and that Jane and Mary determined that David’s estate would be distributed
in accordance with Pennsylvania rules of intestate succession. David’s estate was, as provided in
the question, in the high six figures. Accordingly, Jane would take an initial $30,000 and one-
half of the remaining estate value.
The remaining half of David’s estate would then go to David’s issue, his three children,
under the PEF Code. The PEF Code provides, in relevant part, that the remaining part of the
estate after the spouse takes her share shall pass “[t]o the issue of the decedent.” 23 Pa. C.S. §
2103. In turn “[t]he part of the estate passing to [those other than the decedent’s spouse] shall be
divided into as many equal shares as there shall be persons in the nearest degree of consanguinity
to the decedent living and taking shares therein.” 23 Pa.C.S. § 2104. As the facts state that
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David had three children, the estate would be divided evenly between them. Thus, each child
would be entitled to one-third of the remaining estate after Jane took her share.
3. Larry’s action in drafting Angela’s will with a $10,000 testamentary bequest to
himself is likely to be determined a violation of the Pennsylvania Rules of
Professional Conduct as it is a substantial gift and Larry is not related to Angela.
The bequest of $10,000 to Larry in Angela’s will that Larry drafted after an initial
consultation with Angela, presents an issue of professional responsibility regarding the scope
and magnitude of a lawyer obtaining benefits other than reasonable fees and costs from a client.
The Pennsylvania Rules of Professional Conduct (RPC) define a number of prohibitions or
cautions for lawyers engaging in various situations with the potential for conflict. See Pa.R.P.C.
Nos. 1.0 et seq. The RPC define conflicts of interest regarding gifts to attorneys from clients, in
relevant part, as follows:
A lawyer shall not solicit any substantial gift from a client,
including a testamentary gift, or prepare on behalf of a client an
instrument giving the lawyer or a person related to the lawyer any
substantial gift unless the lawyer or other recipient of the gift is
related to the client. For purposes of this paragraph, related
persons include a spouse, child, grandchild, parent, grandparent or
other relative or individual with whom the lawyer or the client
maintains a close familial relationship.
Pa.R.P.C. No. 1.8(c).
This Rule prohibits the preparation of “an instrument giving the lawyer . . . any
substantial gift” unless the lawyer or other recipient is related to the client, regardless of the
absence of solicitation. Here the facts show that Larry drafted Angela’s will, which contained a
bequest to him of $10,000. Thus he prepared the instrument giving himself a substantial gift in
violation of Rule 1.8(c).
Comment 6 to RPC 1.8 discusses the concept of gifts from clients to lawyers and the threshold of
a “substantial” unsolicited gift from a client which could be a violation for a non-related lawyer:
A lawyer may accept a gift from a client, if the transaction meets
general standards of fairness. For example, a simple gift such as a
present given at a holiday or as a token of appreciation is
permitted. If a client offers the lawyer a more substantial gift,
paragraph (c) does not prohibit the lawyer from accepting it,
although such a gift may be voidable by the client under the
doctrine of undue influence, which treats client gifts as
presumptively fraudulent. In any event, due to concerns about
overreaching and imposition on clients, a lawyer may not suggest
that a substantial gift be made to the lawyer or for the lawyer’s
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benefit, except where the lawyer is related to the client as set forth
in paragraph (c).
Pa.R.P.C. No. 1.8, cmt. 6.
The $10,000 written into Angela’s will as a bequest to Larry is certainly “substantial” and
is not a “simple gift.” It was not a gift given at a holiday or as a token of appreciation as it
appears that Larry suggested the bequest. Additionally, Larry cannot claim that the bequest was
intended to be part of or in lieu of compensation for his services as attorney for Angela’s estate
as the facts state he took fees for all of his services, and Angela had not required any services
from Larry after he had drafted her will. Thus the $10,000 is both substantial and a gift and it
was a violation of Rule 1.8 for Larry to draft a will for Angela that included this bequest.
Another comment to Rule 1.8 provides the following:
If effectuation of a substantial gift requires preparing a legal
instrument such as a will or conveyance, the client should have the
detached advice that another lawyer can provide. The sole
exception to this Rule is where the lawyer is a relative of the
donee.
Id. at cmt. 7.
In the facts provided, Larry is not a “related person” as Rule 1.8 (c) defines the term. He
had only recently been referred to Angela by her son David to draft her will. Comment 7
provides that in the event that a “substantial gift requires . . . a will . . . the client should have the
detached advice that another lawyer can provide.” Id. In this case, Larry did not ask or
recommend that another lawyer be consulted to provide detached advice to Angela. He simply
drafted the will giving himself $10,000. Thus Larry violated rule 1.8 of the RPC.
Moreover, the facts suggest that Larry “solicited” the gift. Angela’s housekeeper could
testify to the conversation in which, in response to Angela’s request that Larry do additional
work for her, Larry stated, “It would have to be worth my while. In your will you could give
something to anyone.” It was at that point that Angela told Larry to put a “gift” for himself in
her will. Thus, it appears under the facts that Larry solicited the substantial gift from Angela.
However, even if this testimony and evidence is not conclusive to show that Larry “solicited” the
$10,000 gift, Larry would still have a problem under the rules as provided above.
By way of example, the Pennsylvania Supreme Court has upheld the Disciplinary Board
in imposing severe disciplinary sanctions on a lawyer who violated RPC 1.8 (c) by soliciting a
substantial gift in the will of a client in Office of Disciplinary Counsel v. Jeffrey J. Howell, No.
1635 Disciplinary Docket No. 3 (2008). In that case, the court upheld the suspension of an
attorney for five years when he convinced an elderly client to name him as beneficiary of the
client’s estate and induced his attorney friend to draft the will. Thus, Larry would most likely be
subject to some level of discipline based on the facts of the narrative for violation of RPC 1.8.
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4. The final joint1 return of David and Jane for 2015 must report $125,000 of the
insurance payment as income due to an involuntary conversion.
Section 61(a), 26 U.S.C.A. § 61(a) of the Internal Revenue Code (IRC), broadly defines
“gross income” as “all income from whatever source derived,” listing 15 specific, but not all
inclusive, examples. Under section 1033(a) of the IRC, 26 U.S.C.A § 1033(a), a payment from
an insurer for the total loss of a property caused by destruction, theft, seizure, or condemnation,
known as an “involuntary conversion,” must, unless excluded or not recognized by law, be
reported as a gain in the same manner as a voluntary sale to the extent the payment exceeds the
adjusted basis of the property. See id.; 26 CFR 1.1033(a)-2. In the facts above, Jane has decided
not to replace or rebuild the vacation home, accordingly, she must report the gain on the joint tax
return.
In order to determine how much of the $200,000 must be reported as income one would
turn to the other provisions of the IRC. The IRC provides that a gain from the conversion of
property is determined by the following:
(a) Computation of gain or loss. The gain from the sale or other disposition
of property shall be the excess of the amount realized therefrom over the
adjusted basis provided in section 1011 . . . for determining gain . . . .
(b) Amount realized. The amount realized from the sale or other disposition
of property shall be the sum of any money received plus the fair market
value of the property (other than money) received . . . .
(c) Recognition of gain or loss. . . . [T]he entire amount of the gain or loss,
determined under this section, on the sale or exchange of property shall be
recognized.
26 U.S.C. § 1001. In the facts above, David and Jane received only cash in the form of the
insurance check for $200,000. Accordingly, there is no other item to consider in determining the
gain, other than the cash and the adjusted basis.
The basis of a property is defined, in relevant part here, as “the cost of such property.”
26 U.S.C. § 1012. “The adjusted basis for determining a gain or loss . . . shall be the basis
(determined under section 1012) . . . or other applicable sections . . ., adjusted as provided in
section 1016.” 26 U.S.C. § 1011. Section 1016 provides, in relevant part, that “[p]roper
adjustments [to the basis] in respect of the property shall in all cases be made . . . for
expenditures, receipts, losses or other items, properly chargeable to capital account.” 26 U.S.C.
§ 1016.
Under the facts, the cost basis for David and Jane’s destroyed house is its $75,000
structure value. The narrative establishes the purchase price David and Jane paid for the
structure on the property was $75,000. The facts also provide that David and Jane purchased the
1 Jane is permitted to file a joint federal income tax return as a “surviving spouse” because her spouse died during
the taxable year. See 26 CFR 31.3402(l)-1, INTERNAL REVENUE SERV., Publ’n no. 17 (2015).
7
house for cash, made no additional capital improvement to add to the basis, nor is there any
indication of a mortgage, line of credit or other lien on the property. Thus the adjusted cost basis
for the home would be $75,000. Accordingly, taking the $200,000 check received by the couple
from the insurance company and subtracting the adjusted basis of $75,000, David and Jane
realized a $125,000 gain on the involuntary conversion of their vacation home.
The Internal Revenue Code does provide for an exclusion of up to $500,000 for joint
spousal taxpayers who have used the property as the principal residence for at least two of the
five years preceding the sale or other disposition of the property. See 26 U.S.C. § 121. While
David and Jane had purchased the home ten years prior to its destruction, they had not used the
vacation home as their principal residence for the last seven years. This also means that they had
not used it as their principal residence within at least two of the five years before its destruction.
Accordingly, they are not permitted to exclude the gain on the sale or other conversion of a
primary residence under the IRC. See 26 U.S.C. § 121. The IRC also provides that if within two
years after the end of the tax year in which the gain on the property converted is realized, the
property is rebuilt or replaced in a way that is similar or related in use to the former property, the
income is deferred at the election of the taxpayer to the extent the amount realized by its
conversion exceeds the cost of the new property. 26 U.S.C. § 1033. However, Jane has chosen
to keep the proceeds, as stated in the facts, and chosen not rebuild or replace the destroyed
structure, thus the final joint income tax return filed by Jane and David for 2015 will require that
the $125,000 be reported as income.
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Question No. 1: Grading Guidelines
1. Advancement affecting inheritance
Comments: Candidates should recognize that a gift acknowledged in writing as part of an
anticipated inheritance affects the recipient’s share of the donor’s estate.
6 points
2. Distribution of intestate estate
Comments: Candidates should understand the proportionate shares of a surviving spouse and
children of the decedent as provided by Pennsylvania law.
4 points
3. Professional Conduct – lawyer as beneficiary of will
Comments: Candidates should recognize the presumptive prohibition of a non-related lawyer
soliciting or drafting a substantial gift to the lawyer
5 points
4. Federal tax consequences of involuntary conversion
Comments: Candidates should recognize the inclusion in the federal income tax return of the
gain represented by an insurance recovery of a lost structure which was not the primary
residence
5 points
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Question No. 2
Amy owns and has operated Fun Fitness since May 2014 from a leased space in a retail plaza
in Z County, Pennsylvania. The space was formerly a hair salon and was not designed to have heavy
items affixed to the interior drywall. The main room is an open space with a floor mat and a wood
bar affixed to a wall. Patrons often use the bar to support their weight as they stretch and exercise
without supervision. Amy designed the facility layout. Ray, an established local contractor,
constructed the improvements, including affixing the wood bar to the wall.
By May 2015, the anchor fixtures supporting the bar had loosened causing the bar to become
unstable and unsafe to use. On May 4, 2015, a patron told Amy of the problem, which was not
obvious on visual inspection. Amy examined the bar and its condition. She immediately contacted
Ray and told him that the bar was unstable and unsafe. Ray immediately went to the business and
inspected the wood bar. He told Amy he would return the following morning, May 5, to repair the
condition and provide additional support for the bar. Amy took no further action. Under Amy’s
lease she is responsible for all construction, maintenance, and repairs to the space.
Carol has been a Fun Fitness member since it opened and uses the facility twice per week.
On May 5, 2015, at 6:15 a.m. Carol arrived for an early workout before Amy or Ray came to the
facility. She proceeded to the exercise room and gripped the wood bar to stretch her hamstring
muscles. This caused the bar to pull away from the wall. Carol lost her balance, fell, and injured her
right shoulder. Carol was treated at a nearby express-care facility and was advised to take non-
prescription pain medication for her shoulder injury.
Amy arrived later that morning and learned about Carol’s accident. Amy called Carol and
told her, “I can’t believe Ray didn’t fix that bar.” Amy told Carol she would pay Carol’s medical
insurance deductible at the express-care facility. Amy then stated to Carol, “Let’s keep this out of
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court.” Carol responded that she wanted at least $10,000, which Amy rejected as being ridiculous.
Amy then offered to extend Carol’s membership for two years at no fee, which Carol rejected.
A week after her fall at Fun Fitness, Carol spoke to Linda, who was also a Fun Fitness
member. Carol told Linda she was continuing to experience shoulder pain and stated, “It’s the same
shoulder I hurt when I fell on the ice in my driveway last December and ended up in the emergency
room. I like the doctor treating me now for the Fun Fitness injury more than Dr. Smith who treated
me in December.” In July, Carol had arthroscopic surgery on her right shoulder to repair joint
damage. Carol hired Attorney Able who timely filed a complaint in Z County for her personal
injuries alleging negligence against Amy. Amy later learned from a reputable contractor that the
method Ray used to affix the wood bar to the wall was improper and was completed in an
unworkmanlike manner.
1. What must Carol establish to sustain her cause of action for negligence based on
premises liability against Amy, and with what likelihood of success?
2. Amy feels strongly that she is not responsible for Carol’s injury, or at least not solely
responsible, and that Ray’s incompetence caused the incident. Amy’s Answer is not
yet due. What procedural steps could Amy’s attorney take in the action filed by Carol
against Amy to try to hold Ray legally responsible for the claim asserted by Carol?
3. Assume that this matter proceeds to trial and Carol’s attorney seeks to introduce some
of Amy’s statements to prove that Amy is liable for her injuries. Other than a
possible hearsay objection, on what basis should Amy object, and how should the
court rule on the following statements:
(a) Amy’s statements offering to pay Carol’s medical insurance deductible for her
treatment at the express care facility.
(b) Amy’s offer to extend Carol’s membership at no charge to avoid litigation.
4. Amy’s counsel has properly served Carol with interrogatories asking her to identify
the date and location of any emergency room visits and the names and addresses of
her treating physicians relating to the previous injury from her fall on the ice in
December. If Carol objects on the basis that the interrogatories are overly broad and
not proper and Amy’s counsel moves the court to dismiss the objection, how should
the court rule?
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Question No. 2: Examiner’s Analysis
1. Carol is an invitee and will have to prove that Amy knew or reasonably should have
known of the dangerous condition that caused Carol’s injuries, and that Amy failed to
exercise reasonable care to protect or warn patrons against the dangerous condition.
Carol should be successful based on these facts.
The Pennsylvania Superior Court summarized the current law in Pennsylvania regarding
negligence as follows:
Pennsylvania law places the burden on the plaintiff to establish the
existence of negligence on the part of the defendant by proving four
elements: (1) a duty or obligation recognized by law; (2) a breach of
that duty; (3) a causal connection between the conduct and the
resulting injury; and (4) actual damages.
Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 335, 690 A.2d 719, 722 (1997)
appeal denied, 701 A.2d 577 (Pa. 1997), citing Pittsburgh Nat’l Bank v. Perr, 431 Pa.Super. 580,
584, 637 A.2d 334, 336 (1994). The Swift court went on to discuss the duty owed as follows:
The nature of the duty which is owed in any given situation hinges
primarily upon the relationship between the parties at the time of the
plaintiff’s injury. Pittsburgh Nat’l Bank v. Perr, supra. The standard
of care that a possessor of land owes to one who enters upon the land
depends upon whether the entrant is a trespasser, a licensee or an
invitee.
Id. citing Carrender v. Fitterer, 503 Pa. 178, 184, 469, A.2d 120, 123 (1983).
Amy’s duty to Carol on her cause of action in negligence based on premises liability will be
determined by Carol’s status. An "invitee" is defined in the following manner:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a
member of the public for a purpose for which the land is held open to the
public.
(3) A business visitor is a person who is invited to enter or remain on land for a
purpose directly or indirectly connected with business dealings with the
possessor of the land.
RESTATEMENT (SECOND) OF TORTS § 332 (1965), cited with approval in Atkins v. Urban
Redevelopment Auth. of Pittsburgh, 489 Pa. 344, 351 n. 2, 414 A.2d 100, 103 n. 2 (1980); see also
Kimble v. Mackintosh Hemphill Co., 359 Pa. 461, 470, 59 A.2d 68, 72 (1948) (citing RESTATEMENT
OF TORTS § 332). As a paying member of the exercise facility, Carol is an invitee.
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Applying Section 343 of the Restatement (Second) of Torts, the Pennsylvania Superior Court
has explained that,
A party is subject to liability for physical harm caused to an invitee if:
he knows of or reasonably should have known of the condition and the
condition involves an unreasonable risk of harm, he should expect that
the invitees will not realize it or will fail to protect themselves against
it, and the party fails to exercise reasonable care to protect the invitees
against the danger.
Blackman v. Fed. Realty Inv. Tr., 444 Pa.Super. 411, 415, 664 A.2d 139, 142 (1995) citing
RESTATEMENT (SECOND) OF TORTS § 343 (1965). The Superior Court further stated that “[a]n invitee
must prove either the proprietor of the land had a hand in creating the harmful condition, or he had
actual or constructive notice of such condition.” Swift, 456 Pa. Super. at 336; 690 A.2d at 722, citing
Moultrey v. Great Atl. & Pac. Tea Co., 281 Pa.Super. 525, 535, 422 A.2d 593, 598 (1980).
Amy was the business owner and as such she owed a duty of care to her business invitees to
ensure that the premises were free from known dangers and those dangers which might be
“‘discovered with reasonable care.’” See Truax v. Roulhac, 2015 Pa. Super. 217, 126 A.3d 991, 997
(2015) (quoting Charlie v. Erie Ins., Exch., 100 A.3d 244, 253 (Pa. Super. 2014)). Amy knew of the
dangerous condition of the bar as she had been informed by a patron that it was loose, and she
subsequently inspected it. She then contacted Ray, who had originally installed the wooden bar in
an unworkmanlike manner, and who promised to correct the dangerous condition but did not.
Additionally, Amy told Carol, “I can’t believe Ray didn’t fix that bar,” further acknowledging that
she was aware of the dangerous condition. Thus, Amy knew that the bar involved a dangerous
condition and an unreasonable risk of harm. Subsequent to her inspection of the bar, Amy failed to
take any further action such as placing a sign on the bar warning members of its defective condition
and warning them not to use the bar. Amy’s failure to warn of the dangerous condition, or to correct
it prior to Carol’s visit to the facility, is a breach of her duty of care to her invitee, Carol.
The risk that caused Carol’s injury, the unstable condition of the wooden bar, was one that an
invitee could not have been expected to anticipate. There was no warning or notice provided to
those using the room that the bar was unsafe, and the bar’s instability was not obvious on visual
inspection. Carol should be able to show that Amy failed to exercise reasonable care to protect her
invitees against the known danger by failing to repair or to warn of the condition created by the
faulty state of the wooden bar. This failure will likely be deemed to be the proximate and actual
cause of Carol’s injuries, i.e. if Carol had not leaned on the bar, as patrons often did, she would not
have fallen and injured her shoulder. The facts also indicate that Carol suffered actual physical
injury to her shoulder or that her fall aggravated the pre-existing condition for which Amy may be
held liable. The Pennsylvania Supreme Court has held that, a tortfeasor is liable for all injuries
caused by his negligence. “The term ‘injuries’ necessarily refers as much to the aggravating of an
already existing disability as it does to the infliction of an original wound.” Pavorsky v. Engels, 410
Pa. 100, 102-03, 188 A.2d 731, 733 (1963) (further citation omitted). Carol should be successful on
her claim as all of the elements of negligence have been satisfied.
13
2. Amy’s attorney should file a praecipe for a writ or a complaint against Ray to join him
as an additional defendant.
Carol has filed her personal injury action naming Amy as the defendant on a negligence
theory based on premises liability. Amy as owner of the premises is liable for her negligence to her
invitees. Amy engaged the services of Ray to install the wooden bar and affix it to the wall. Amy
believes that Ray failed to install the bar in a workmanlike manner and that he is liable for Carol’s
injury.
Carol has not named Ray as a defendant. Ray may be liable to Carol for the defective
method of installing the wooden bar. In order to preserve her claim against Ray, Amy should join
him in the action as an additional defendant under Pa.R.C.P. No. 2252.
Rule No. 2252 (a) provides in pertinent part the following:
(a) [A]ny party may join as an additional defendant any person not
a party to the action who may be
(1) solely liable on the underlying cause of action against the
joining party, or
* * * *
(4) liable to or with the joining party on any cause of action
arising out of the transaction or occurrence or series of
transactions or occurrences upon which the underlying
cause of action against the joining party is based.
* * *
(b) The joining party may file as of course a praecipe for a writ or
a complaint.
Pa.R.C.P. No. 2252.
Amy should file either a praecipe for a writ or a complaint to join Ray as an additional
defendant on the basis that Ray should be solely liable on Carol’s cause of action, or liable to, or
with Amy on the cause of action. Amy’s cause of action against Ray for negligent work is based
upon the same occurrence or transaction upon which the plaintiff, Carol, bases her claim; i.e. Carol’s
injuries were caused by Ray defectively installing the bar that pulled away from the wall when Carol
put her weight on it. See Stokes v. Loyal Order of Moose Lodge No. 696, 502 Pa. 460, 466 A.2d
1341 (1983) (holding it was error to permit joinder where complaints did not arise out of the same
transaction or occurrence); 202 Island Car Wash, L.P. v Monridge Construction, Inc., 2006 Pa.Super
362, 913 A.2d 922 (2006) (stating “‘[t]he key inquiry is whether the additional defendant’s liability
is related to the plaintiff’s claim against the original defendant’” (quoting Somers v. Gross, 393 Pa.
Super. 509, 574 A.2d 1056, 1058 (1990)).
As Ray is not a party to the suit, Amy would need to file the above-mentioned praecipe for a
writ or a complaint to join Ray as an additional defendant, no later than “sixty days after the service
14
upon the original defendant of the initial pleading of the plaintiff or any amendment thereof, or . . .
the time for filing the joining party’s answer . . . whichever is later.” Pa.R.C.P. No. 2253. If the
praecipe for writ or complaint for joinder is not filed within that time period as required by the Rule,
Amy will be required to either get consent of the parties or ask leave of the court. Id.
3. Amy’s attorney should object on the following bases: (a) that an offer to pay medical
expenses is not admissible to show liability, and the court will likely rule it is
inadmissible on that basis; and (b) that an offer of an extended free membership would
be excluded as a compromise offer, and the court will likely also rule it is inadmissible.
Pennsylvania Rules of Evidence provide the test for relevant evidence as follows:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and
(b) the fact is of consequence in determining the action.
Pa.R.E. 401. “All relevant evidence is admissible, except as otherwise provided by law.” Pa.R.E.
402.
(a) Carol’s attorney seeks to introduce the offer Amy made to pay Carol’s medical insurance
deductible as relevant evidence to show Amy is liable for Carol’s injuries. Amy’s offer does have a
tendency to make the fact that she was responsible for Carol’s injury more probable, which would be
of consequence in Carol’s negligence cause of action. Thus, Amy’s offer could be admissible if the
court determines that it is relevant to prove liability. However, Amy’s offer, while perhaps relevant,
would not be admissible for the purpose for which it was offered, i.e. to prove Amy’s liability.
Pennsylvania Rule of Evidence 409 provides as follows:
Evidence of furnishing, promising to pay, or offering to pay medical,
hospital, or similar expenses resulting from an injury is not admissible
to prove liability for the injury.
Pa.R.E. No. 409.
Amy’s offer to pay Carol’s express care medical insurance deductible would be an expense
covered by Rule 409 when offered for the purposes of proving Amy’s liability for Carol’s injury. As
such, Amy should not be penalized for extending the offer; the court should sustain the objection,
and rule Amy’s statement offering to pay Carol’s out of pocket medical expenses inadmissible for
the purpose of proving Amy’s liability for Carol’s injury. Pennsylvania’s Rule 409 is identical to the
corresponding federal rule. See Fed. R. Evid. 409; Pa.R.E. 409 cmt. The rationale for the rule is that
“‘such payment or offer is usually made from humane impulses and not from an admission of
liability, and to hold otherwise would tend to discourage assistance to the injured person.’” Fed. R.
15
Evid. 409 advisory committee note (quoting 20 ALR. 2d 291, superseded by 65 ALR 3d 932); see
also Burns v. Flaherty Co., 278 Pa. 579, 581, 123 A. 486, 496-97 (1924).
(b) Amy’s offer of extended membership at no charge was made to dissuade Carol from
initiating legal action and in response to Carol’s demand of $10,000.
Pennsylvania Rules of Evidence Rule 408 titled Compromise Offers and Negotiations
provides in relevant part as follows:
(a) Prohibited Uses. Evidence of the following is not admissible --on behalf of
any party --either to prove or disprove the validity or amount of a disputed
claim . . . .
(1) furnishing, promising or offering -- or accepting, promising to
accept, or offering to accept -- a valuable consideration in
compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations
about the claim.
Pa.R.E. 408 (a).
In Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545, 549, 449 A.2d 1366, 1368
(1982) the Pennsylvania Supreme Court stated that the threshold inquiry is whether the evidence
between the parties “can be fairly characterized as relating to an offer of compromise.” The court
defined the term “an offer to compromise” as “the settlement of differences by mutual concessions;
an adjustment of conflicting claims.” Rochester, 498 Pa. at 549, 449 A.2d at 1368. In Rochester the
court held that an exchange of letters between the parties, the first demanding repair for damage to a
building and the second letter responding to that demand with the admission that the defendant was
responsible for some of the damage was not part of an offer to compromise and therefore was
admissible. Id. at 555, 449 A.2d at 1371; see also, Hooker v. State Farm Fire and Casualty Co., 880
A.2d 70, 85 (Pa. Cmwlth. 2005) (stating that “[t]aking responsibility for some items of damage
while contesting responsibility for others does not suggest that it is an offer to compromise a
disputed claim”).
In the facts, Amy stated to Carol, “Let’s keep this out of court.” By doing so, Amy was
attempting to begin compromise negotiations. Carol’s response, requesting $10,000 to keep the
matter out of court was part of the negotiations as was Amy’s resulting offer to extend Carol’s
membership for two years at no charge. The membership extension on Amy’s part constitutes
valuable consideration. Thus the two year free membership offer was an offer of compromise under
the Rochester definition of an offer of settlement by mutual concessions. The court, therefore,
should rule that it is inadmissible and excluded under Pa.R.E. 408 (a).
4. Carol’s objections will be unsuccessful and the court will order Carol to answer the
interrogatories.
16
Discovery under the Pennsylvania Rules of Civil Procedure “is liberally allowed with respect
to any matter, not privileged, which is relevant to the cause being tried.” George v. Schirra, 814
A.2d 202, 204 (Pa. Super. 2002). Rule 4003.1 provides, in pertinent part, the following:
(a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a
party may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it relates
to the claim or defense of the party seeking discovery or to the claim or
defense of any other party, including the existence, description, nature,
content, custody, condition and location of any books, documents, or other
tangible things and the identity and location of persons having knowledge of
any discoverable matter.
(b) It is not ground for objection that the information sought will be inadmissible
at the trial if the information sought appears reasonably calculated to lead to
the discovery of admissible evidence.
Pa.R.C.P. 4003.1. Under Rule 4005, subject to the limitations set forth in Rule 4011, “a party may
serve upon any other party written interrogatories . . . [which] may relate to any matter” otherwise
discoverable. See Pa.R.C.P. 4003.1.
Although broad in scope, discovery is not permitted which:
(a) is sought in bad faith;
(b) would cause unreasonable annoyance, embarrassment,
oppression, burden or expense to the deponent or any person or
party;
(c) is beyond the scope of discovery as set forth in Rules 4003.1
through 4003.6;
(d) is prohibited by any law barring disclosure of mediation
communications and mediation documents; or
****
(e) would require the making of an unreasonable investigation by
the deponent or any party or witness.
Pa.R.C.P. 4011.
The written interrogatories sent by Amy’s counsel are a proper discovery method under Rule
4005 and were properly served on Carol who is a party to the action. Amy is requesting
identification of Carol’s treating physicians and information relating to the emergency room visit
concerning the prior injury to Carol’s shoulder from her fall on the ice. Answers to these
interrogatories relate to injuries to the same shoulder which Carol reinjured in her fall at Fun Fitness.
Carol’s fall at Fun Fitness is the basis of Carol’s personal injury claim in the current action.
“Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it
would be without the evidence; and . . . the fact is of consequence in determining the action.”
17
Pa.R.Evid. 401. Thus, the interrogatories are relevant to the subject matter of the pending action and
are reasonably calculated to lead to the discovery of admissible evidence. Identifying the treating
physicians and emergency room information may lead to obtaining relevant information as to the
nature and extent of any prior injury and damage to Carol’s shoulder, which is part of Carol’s current
claim for personal injuries. There is no basis under Pa.R.C.P. 4011 for Carol to object as the
requests are not sought in bad faith. It does not appear that the disclosure of the information would
cause unreasonable annoyance, embarrassment, oppression, burden or expense nor would it require
an unreasonable investigation as the facts show that Carol has the information on who treated her.
Further, the date and location of her emergency room treatment and names of her treating physicians
for the previous injury may lead to relevant evidence regarding the condition of Carol’s shoulder
prior to the current injury which is the basis for her claim in the action against Amy. Under Rule
4006, therefore, the court should dismiss Carol’s objections and order her to answer Amy’s
interrogatories.
18
Question No. 2: Grading Guidelines
1. Negligence (Premises Liability)
Comments: The candidate should identify the elements of negligence, the duty owed by Amy to
Carol as an invitee of Fun Fitness, and that based on the facts and the breach of that duty Carol will
be successful.
7 Points
2. Joinder of Additional Defendant
Comments: The candidate should recognize that Fun Fitness should protect any claim of joint
liability or sole liability it has against Ray by joining him as an Additional Defendant in the lawsuit
and the options to proceed with joinder under the Pa.R.C.P.
3 Points
3. Evidence - Offer to Pay Medical and Similar Expenses - Compromise Offers and
Negotiations
Comments: The candidate should identify that the offer by Amy to pay Carol’s out-of-pocket
medical expenses and Amy’s offer of an extended membership is a comproise offer and neither will
be admissible to prove liability under the Pa.R.E.
6 Points
4. Discovery- Written Interrogatories to a Party
Comments: The candidate should recognize that the interrogatories are permitted under the
Pa.R.C.P. in that they seek information which is relevant to the subject matter of her action, not
privileged and that the court should overrule Carol’s objections and order her to answer the
interrogatories.
4 Points
19
Question No. 3
Clyde and Bonnie were married in June of 2010 in C County, Pennsylvania, and continue
to reside in C County. Clyde is currently earning about $100,000 a year as a salesman, and
Bonnie recently lost her job. The couple is very materialistic and often tries to live beyond their
financial means.
Desperate to buy herself a new Mercedes, Bonnie went to a local bank in C County in
early September 2015 and saw a customer, later identified as Jackie, walking towards the front
door of the bank. Bonnie approached Jackie with an unloaded .40 caliber handgun, which
Bonnie was licensed to carry, and pointed the gun at Jackie’s head. Bonnie said, “Give me all
your money.” Jackie, who was terrified at the sight of the gun being pointed at her head,
immediately handed over to Bonnie all of her cash, totaling $500, which Jackie had intended to
deposit in the bank. Bonnie then fled the scene. Jackie was the only witness to the events as no
other persons were in the area at the time of the incident.
Within hours, the police apprehended Bonnie at her home and arrested her for the
incident outside the bank. Before being transported to the police station for booking, Bonnie was
handcuffed and properly informed of her Miranda rights. Bonnie immediately told the police
that she did not wish to speak with them and that she wanted an attorney. While being
transported to the police station, Bonnie, without being asked any questions by the transporting
officer or any other officer, said, “I didn’t mean to scare the woman. I just needed the money to
get a new car.”
A preliminary hearing was held two months after Bonnie’s arrest at which Jackie testified
in detail, under oath, to the facts surrounding the incident cited above. During her testimony,
Jackie unequivocally identified Bonnie as the offender. Jackie was then subjected to a rigorous
20
cross-examination by Bonnie’s attorney. A stenographer was present for the hearing and later
produced a transcript that he provided to the district attorney and defense counsel. A week after
the preliminary hearing Jackie was tragically killed in a motor vehicle accident.
Shortly after Clyde and Bonnie’s marriage, Clyde bought a home located at 215 Simmons
Street in C County for $100,000, which was well below the fair market value of the property.
While Bonnie was in jail awaiting trial she was served with a Complaint, which was filed in C
County, raising claims for divorce and equitable distribution of property. Shortly thereafter,
Bonnie received reliable information that Clyde was planning to immediately sell the home at
215 Simmons Street to his friend, Mike, and that Clyde would be netting approximately $50,000
from the sale of the home. She further learned that Clyde intended to take the $50,000 and
immediately move to Mexico. This was the only asset of substantial value that Bonnie and
Clyde accumulated during the marriage, and there is no dispute that the $50,000 is considered to
be marital property.
1. Would a robbery charge against Bonnie be supported by the facts presented?
2. If Bonnie’s attorney properly files a pre-trial motion to suppress the statement
Bonnie made to the police officer while being transported to the station on the
basis that it was in violation of her Miranda rights, how should the district
attorney respond, and how would the court likely rule?
3. A police officer was called at Bonnie’s criminal trial to read Jackie’s testimony
from the preliminary hearing, and the defense counsel objects based upon
hearsay. What should be the district attorney’s response, and how should the
court rule?
4. What remedy could be pursued on behalf of Bonnie under the Pennsylvania
Divorce Code to ensure that any proceeds of the sale of the home are not taken by
Clyde and are properly preserved for equitable distribution purposes?
21
Question No. 3: Examiner’s Analysis
1. A robbery charge against Bonnie is likely supported by the facts presented.
“A person is guilty of robbery if, in the course of committing a theft, [the person] . . .
threatens another with or intentionally puts him in fear of immediate serious bodily injury.” 18
Pa. C.S.A. § 3701(a)(1)(ii). “An act shall be deemed in the course of committing a theft if it
occurs in an attempt to commit theft or in flight after the attempt or commission.” 18 Pa. C.S.A.
§ 3701(a)(2). “Serious bodily injury” is defined as “[b]odily injury which creates a substantial
risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment
of the function of any bodily member or organ.” 18 Pa. C.S.A. § 2301. “A person is guilty of
theft if he unlawfully takes, or exercises unlawful control over, moveable property of another
with the intent to deprive him thereof.” 18 Pa. C.S.A. § 3921(a). In Commonwealth v. Valentine,
101 A.3d 801 (Pa. Super. 2014), the court concluded that a robbery charge was supported under
section 3701 where the defendant appeared from outside the victim’s view while she was alone
at a public transit bus stop, pointed a gun a few inches from her face, threatened to shoot her, and
demanded she hand over her purse and cellular telephone. The victim testified that she was
afraid, shocked, and nervous and did not know whether the defendant would shoot her if she said
the wrong thing. Id. at 807. A robbery charge may also be sustained where, in the course of
committing a theft, a person takes or removes property from another person by force, however
slight. 18 Pa. C.S.A. § 3701(a)(1)(v). “Constructive force consists of the use of threatening
words or gestures sufficient to separate the victim from his property.” McElrath v.
Commonwealth, 592 A.2d 740, 745 (Pa. Super. 1991).
As applied here, the facts indicate that Bonnie went to the local bank in C County and
approached Jackie as she was walking towards the front door of the bank. As Bonnie
approached Jackie, Bonnie pointed her .40 caliber handgun at Jackie’s head and stated, “Give me
all of your money.” “The Commonwealth need not prove a verbal utterance or threat to sustain a
conviction under subsection 3701(a)(1)(ii). It is sufficient if the evidence demonstrates
aggressive actions that threatened the victim’s safety.” Commonwealth v. Alford, 880 A.2d 666,
676 (Pa. Super. 2005) (quoting Commonwealth v. Hopkins, 747 A.2d 910, 914-15 (Pa. Super.
2000)). Bonnie’s actions terrified Jackie and caused her to hand over the $500 in cash which she
had in her possession. These facts clearly demonstrate that Bonnie threatened Jackie with
immediate serious bodily injury, namely shooting her in the head. The facts also support
Bonnie’s intent to place Jackie in fear of such injury. The fact that the gun was unloaded will
have no bearing on the ultimate result because Jackie did not know that the gun was unloaded. It
is also clear that Bonnie’s threats towards Jackie were made in the course of committing the theft
of $500 from Jackie as the threats were made as she was in the process of taking the money from
Jackie, and it can be inferred that it was Bonnie’s intent to permanently deprive Jackie of the
money.
Alternatively, it can be argued that a robbery charge is supported under Section 3701
(a)(1)(v) as constructive force was used in order to separate Jackie from her property. By
threatening Jackie with her gun Bonnie forced Jackie to turn over her money and this was
accomplished through the use of force.
22
The facts likely support a robbery charge against Bonnie relative to the incident with
Jackie.
2. The district attorney should respond that although Bonnie was in custody and had
invoked her Miranda rights, the statement she made was unsolicited and not in
response to any interrogation. The court would likely rule that Bonnie’s statement
is admissible.
In order to secure the constitutional right against self-incrimination, the United States
Supreme Court has held that confessions and other statements obtained through custodial
interrogation are inadmissible as evidence unless the declarant is warned before questioning, in
clear and unequivocal terms, that: (1) he or she has the right to remain silent; (2) that any
statement he or she makes may be used as evidence against the declarant; (3) that he or she has
the right to consult with an attorney and to have an attorney present during interrogation; and (4)
that if the declarant is indigent, an attorney will be appointed to represent him or her. Miranda v.
Arizona, 384 U.S. 436, 479 (1966). Pa. Const., Art. 1, Section 9, has language very similar to
the Fifth Amendment and provides that no person can be compelled to give evidence against
himself. Commonwealth v. Molina, 104 A.3d 430, 442 (Pa. 2014).; Commonwealth v. Arroyo,
723 A.2d 162, 166 (Pa. 1999). The test for determining whether or not a person is in custody
for Miranda purposes is whether the person is physically deprived of her “freedom of action in
any significant way or is placed in a situation in which [s]he reasonably believes that [her]
freedom of action o[r] movement is restricted by such interrogation.” Commonwealth v. O’Shea,
318 A.2d 713, 715 (Pa. 1974); see also Miranda, 384 U.S. at 444. An interrogation occurs, and
Miranda warnings are required, when the person is in custody and “where the police should
know that their words or actions are reasonably likely to elicit an incriminating response from
the suspect.” Commonwealth v. Gwynn, 723 A.2d 143, 149 (Pa. 1998); Rhode Island v. Innis,
446 U.S. 291 (1980). Once a person invokes his or her right to counsel all questioning must stop
until counsel is obtained or provided unless the accused initiates further communication,
exchanges or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981);
Commonwealth v. Zook, 553 A.2d 920 (Pa. 1989). Where a defendant who has invoked his or
her right to counsel offers an “unsolicited” or “gratuitous” statement, the statement will not be
subject to suppression. Commonwealth v. Hughes, 639 A.2d 763, 771 (Pa. 1994).
As applied here, the facts indicate that Bonnie was placed under arrest at her home and
was subsequently handcuffed and placed in the police cruiser to be transported to the police
station for booking. When she was placed under arrest, the facts provide that she was properly
administered her Miranda warnings. Upon receiving her warnings, she immediately informed
the police that she did not wish to speak with them and wanted an attorney. Since Bonnie was
clearly in custody at this point the police would be prohibited from interrogating her with regard
to the incident in question. The facts also specify that as Bonnie was being transported to the
police station, and without being asked any questions by the transporting or any other officer,
Bonnie said, “I didn’t mean to scare the woman. I just needed the money to get a new car.”
Since this statement was made voluntarily by Bonnie and not in response to any police
questioning, it will likely be deemed to be an “unsolicited” or “gratuitous” statement, and the
statement will not be subject to suppression.
23
In sum, despite the fact that Bonnie was in custody and had invoked her Miranda rights
at the time she gave the statement in question, it is likely that it will be admitted into evidence as
it was voluntarily given and it was not in response to any interrogation or questioning by the
police.
3. The district attorney should respond that although this evidence would be deemed
to be hearsay, it should be admitted under the former testimony exception to the
hearsay rule as Jackie will now be deemed to be unavailable for trial. The court will
likely admit the testimony.
Hearsay is defined as “a statement that . . . the declarant does not make while testifying at
the current trial or hearing; and [that] a party offers in evidence to prove the truth of the matter
asserted in the statement.” Pa.R.E. 801. A statement includes “a person’s oral assertion . . . if
the person intended it as an assertion.” Id. A declarant “means the person who made the
statement.” Id. “Hearsay is not admissible except as provided by the [Pennsylvania Rules of
Evidence], by other rules prescribed by the Pennsylvania Supreme Court, or by statute.” Pa.R.E.
802. It is clear that Jackie made oral assertions at the preliminary hearing which would be
deemed to be statements under the hearsay rule. Since Jackie, who would be deemed to be the
declarant of these statements, would not be making the statements while testifying at trial and
this evidence is being offered at trial to prove the truth of the matter asserted in the statements,
the statements would be deemed to be hearsay. Thus, the district attorney would have to identify
an exception to the hearsay rule in order to have Jackie’s statements admitted at trial.
Pennsylvania Rule of Evidence 804 provides for exceptions to the Hearsay Rule when the
declarant is deemed to be unavailable as a witness. A declarant is considered to be unavailable
as a witness if the declarant cannot testify at trial because of death. Pa.R.E. 804(a)(4).
Pennsylvania Rule of Evidence 804(b)(1) provides for an exception to the hearsay rule where the
declarant is unavailable as a witness and has provided former testimony. In order for this
exception to apply, the former testimony must have been given by the declarant as a witness at a
proceeding enumerated in the rule, including hearings, and be offered against a party who had an
opportunity and similar motive to develop the testimony by cross examination. Pa.R.E.
804(b)(1). The use of prior recorded testimony where a witness is unavailable and where the
defendant had counsel and an opportunity to fully cross-examine the witness at that prior
proceeding, is not a violation of the Sixth Amendment right of confrontation. Commonwealth v.
Bazemore, 614 A.2d 684, 685 (Pa. 1992)
The facts provide that Jackie was the victim of the offense committed outside the bank
and that she was the only witness (other than Bonnie) to the event. The facts also indicate that
Jackie testified in detail to the facts surrounding the incident, which are outlined above, and that
she identified Bonnie as the offender. The facts show that this testimony was given at a
preliminary hearing, under oath, and that Jackie was subjected to a rigorous cross examination by
Bonnie’s attorney. A stenographic transcript of the preliminary hearing was later provided to
counsel for both the defense and the prosecution. Unfortunately, Jackie is now deceased and will
not be available to testify at trial. Since Jackie is now deceased, and she was the only witness to
24
the events, the district attorney will have to introduce Jackie’s preliminary hearing testimony at
trial in order to prove the charges against Bonnie.
Although the testimony from the preliminary hearing would be deemed to be hearsay, it
is likely that the district attorney would be able to introduce this evidence at trial due to the fact
that Jackie would be deemed to be unavailable, and her testimony would likely be admissible
under the former testimony exception to the hearsay rule.
4. Special relief should be sought on behalf of Bonnie pursuant to the Pennsylvania
Divorce Code in order to prevent the dissipation of proceeds received from the sale
of the marital home.
Special relief under the Pennsylvania Divorce Code is governed by 23 Pa. C.S.A. §
3323(f) as follows:
In all matrimonial causes, the court shall have full equity power and jurisdiction
and may issue injunctions or other orders which are necessary to protect the
interests of the parties or to effectuate the purposes of this part and may grant
such other relief or remedy as equity and justice require against either party or
against any third person over whom the court has jurisdiction and who is involved
in or concerned with the disposition of the cause.
Further, where it appears to the court that a party is about to remove property of that party
from the jurisdiction of the court or dispose of property in order to defeat equitable distribution,
an injunction may be issued to prevent the removal or disposition, and the property may be
attached as prescribed by general rules. 23 Pa. C.S.A. § 3505(a). In Lazovitz v. Lazovitz, 453
A.2d 615, 619-620 (Pa. Super. 1982) the court found that the entry of a preliminary injunction
was appropriate where the trial court restrained the husband from, inter alia, removing marital
assets from Pennsylvania to another state.
As applied here, Bonnie has learned that Clyde is taking steps to sell the home at 215
Simmons Street which is expected to net $50,000 in cash. She has further learned that it is
Clyde’s intention to take the $50,000, which is deemed to be marital property, and immediately
move to Mexico. In order to prevent the removal and possible dissipation of this marital asset,
Bonnie’s counsel should immediately petition the court for special relief to protect against her
husband’s attempts to defeat her rights to a monetary share of the marital home. The court
should be asked to have the funds placed in escrow, or some similar arrangement, until such time
as an agreement can be reached on the distribution of the asset. In short, the equitable powers of
the Court should be immediately invoked to prevent the dissipation of this marital asset.
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Question No. 3: Grading Guidelines
1. Criminal Law
Comments: The Candidate should discuss the elements of robbery, apply the applicable facts,
and conclude that a robbery charge is likely supported on these facts.
5 Points
2. Criminal Procedure
Comments: The candidate should discuss the applicable rules regarding Miranda, apply the
applicable facts, and conclude that the Court will likely admit Bonnie’s statement.
5 Points
3. Evidence
Comments: The candidate should discuss the hearsay rule and former testimony exception,
apply the applicable facts and conclude that the Court will likely permit Jackie’s testimony from
the Preliminary Hearing to be presented at trial.
7 Points
4. Family Law
Comments: The candidate should recognize that special relief should be sought on behalf of
Bonnie pursuant to the Pennsylvania Divorce Code to ensure that the net proceeds of the sale of
the home are properly preserved for equitable distribution purposes.
3 Points
26
Question No. 4
Gloria resides in Village in State Y. Gloria wants to sell her car. She has placed an 8 by
11 inch For Sale sign in the window of her car that she parks on the street in front of her home.
A Village police officer saw the sign and has cited Gloria under Section 17 of the Village Code
(the “Code”), which provides: “It shall be unlawful to park any vehicle displaying a sign
advertising the vehicle for sale on any street in Village. This section shall not apply to the
advertising of a vehicle for sale while driving the vehicle.” The violation carries a $100 fine.
Currently, Gloria’s neighbor has a 2 by 3 foot sign in her front yard stating her child is an
“A” student. Another neighbor has a “Mary Kate Cosmetics For Sale” sign in her car window
that she parks in the street. These signs are permissible under the Code.
Gloria has filed suit to preclude enforcement of Section 17 of the Code alleging it
violates her First Amendment commercial speech rights under the U. S. Constitution. Village
had enacted Section 17 based on its mayor’s opinion that For Sale signs in parked cars are
dangerous distractions and that the Village would look like a used car lot if they were not
banned. Meeting minutes at the time of the vote on the ordinance evidence that a well-known,
credible, national traffic safety study, which determined that For Sale signs in parked vehicles
did not increase accidents among pedestrians or motorists, was presented and disregarded.
Gloria owns GP, Inc. (“GP”), a State Y corporation. GP is a printing business with 150
employees. Its sole facilities, operations, and customers are in State Y. Last year, GP advertised
to hire a graphic designer for a position that required a bachelor’s degree in graphic design.
Amber was interviewed, stated she had the required bachelor’s degree, and was hired.
Amber recently had a child and has just returned to work. Ted, Amber’s supervisor, told
her that she would have difficulty balancing work and childcare responsibilities, and discharged
her. Ted replaced her with a male graphic designer who has an infant child. Amber has filed a
27
discrimination suit against GP under Title VII of the Civil Rights Act in State Y federal district
court alleging disparate treatment due to her sex. She is seeking reinstatement, back pay, and
front pay. During discovery, GP learned that Amber does not have a bachelor’s degree in
graphic design. If known at the time, GP would have terminated Amber.
Heather, a State X resident, worked for GP. When she was hired she signed a valid non-
compete/non-disclosure agreement (the “Agreement”) that prohibited disclosure of confidential
GP information and barred her from working for GP competitors in State Y or any adjoining
state for one year after termination of her employment. The Agreement was signed at GP’s
offices.
Heather recently quit and took a job with New Co., a GP competitor located in adjoining
State X. Using GP customer information (confidential under the Agreement) that she had taken
from GP employee Sally’s confidential files, Heather began soliciting GP customers for New Co.
GP has sued Heather in State Y’s eastern federal district court for breach of the Agreement,
seeking over $100,000 in damages. The State Y court is known for its expertise in handling non-
compete/non-disclosure lawsuits and for rendering prompt decisions.
1. At the non-jury trial on Gloria’s First Amendment claim, Village took the position
that Section 17 is a valid regulation of commercial speech. Based on the facts set
forth above, how should the court analyze the merits of Gloria’s commercial
speech claim and with what outcome?
2. Assume Amber has established a prima facie case of discrimination against GP
and GP offers evidence of her lack of the required degree as the reason to support
her termination. (a) What effect, if any, would this evidence have on GP’s ability
to defend against or defeat the discrimination claim? And (b) What effect, if any,
would it have on the remedies that Amber claims?
3. Heather has filed a Motion in State Y to transfer venue to the congested western
federal district court in State X, 80 miles from the State Y federal eastern district,
on the grounds that she works and lives in State X. How would the court analyze
the Motion to Transfer, and with what result?
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Question No. 4: Examiner’s Analysis
1. The court should analyze Gloria’s First Amendment claim using the Supreme Court’s
four-part test announced in Central Hudson to determine if Village’s restriction on
commercial speech is constitutional. The court will likely find that Village’s restriction
of commercial speech prohibiting For Sale signs in vehicles parked on public streets is
unconstitutional.
The First Amendment provides, in relevant part, that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. This prohibition is made applicable to the
States by the Fourteenth Amendment. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n,
447 U.S. 557, 561 (1980) (citation omitted). Gloria’s First Amendment claim challenging Section
17 of the Village Code stems from her right to free speech, in particular, commercial speech. The
Supreme Court has defined commercial speech as “expression related solely to the economic
interests of the speaker and its audience.” Id. (citation omitted). Concerning commercial speech, the
Supreme Court stated:
The commercial marketplace, like other spheres of our social and cultural life,
provides a forum where ideas and information flourish. Some of the ideas and
information are vital, some of slight worth. But the general rule is that the speaker
and the audience, not the government, assess the value of the information presented.
Thus, even a communication that does no more than propose a commercial
transaction is entitled to the coverage of the First Amendment.
Edenfield v. Fane, 507 U.S. 761, 767 (1993).
Historically, the protection afforded commercial speech was not as great as that given other
constitutionally guaranteed forms of expression. Central Hudson, 447 U.S. at 563 (citing Ohralik v.
Ohio State Bar Ass'n, 436 U.S. 447, 455–56 (1978)). In Central Hudson, the Court instructed that
the “protection available for particular commercial expression turns on the nature both of the
expression and of the governmental interests served by its regulation.” Id. at 563. To that end, the
Court held that “there can be no constitutional objection to the suppression of commercial messages
that do not accurately inform the public about lawful activity[,] [and] [t]he government may ban
forms of communication more likely to deceive the public than to inform it.” Id. (citation omitted).
Where a targeted “communication is neither misleading nor related to unlawful activity,” the Court
directed that the government “must assert a substantial interest to be achieved by restrictions on
commercial speech. Moreover, the regulatory technique must be in proportion to that interest.” Id. at
564.
To effectuate its review, the Supreme Court adopted a four-part test to determine whether the
regulation before it violated rights in commercial speech:
(1) whether the speech at issue concerns lawful activity and is not misleading;
(2) whether the asserted government interest is substantial; and, if so,
(3) whether the regulation directly advances the governmental interest
asserted; and
29
(4) whether it is not more extensive than is necessary to serve that interest.
Central Hudson, 447 U.S. at 566. The Court labeled this an “intermediate standard of review.”
Edenfield, 507 U.S. at 767. The Supreme Court has also noted that “[t]he four parts of the Central
Hudson test are not entirely discrete. All are important and, to a certain extent, interrelated: Each
raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer
to which may inform a judgment concerning the other three.” Greater New Orleans Broad. Ass'n,
Inc. v. United States, 527 U.S. 173, 183-84 (1999).
Applying the Central Hudson factors to the issue here, it appears that on its face, the Village
Code restricts commercial speech by prohibiting advertising a vehicle for sale using a For Sale sign
in any vehicle parked on the street. The Village would have the burden of justifying its prohibition
under Section 17 of the Code to Gloria’s sign. See Edenfield, 507 U.S. at 770 (citation omitted)
(stating that “‘[t]he party seeking to uphold a restriction on commercial speech carries the burden of
justifying it’” (quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71, n. 20 (1983)).
Applying the Central Hudson test to the facts here, Gloria’s For Sale sign advertising the sale of her
car neither pertains to unlawful activity nor is there any suggestion that it is misleading.
Accordingly, the first prong of the Central Hudson test is satisfied.
Second, the asserted government interests suggested by the Code are to improve aesthetics
and traffic safety. The Supreme Court has held that a government’s interest in preserving aesthetics
can be substantial. See, e.g., Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 805
(1984) (providing “the state may legitimately exercise its police powers to advance aesthetic
values”). A majority of Justices have likewise recognized that traffic safety is a “substantial
governmental goal[].” Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08, 528 (1981)
(plurality), (Justices Brennan, with whom Justice Blackmun joined, concurring in the judgment and
stating they had “no quarrel with the substantiality of the city's interest in traffic safety.” 453 U.S. at
528.) Strictly speaking then, the interests in traffic safety and aesthetics asserted by the mayor in
support of the ordinance are likely substantial government interests for purposes of the Central
Hudson test.
It is unlikely, however, that a court applying the third prong of Central Hudson’s test would
find an immediate connection between the ban of For Sale signs in parked cars and the
government’s aim of improving aesthetics and traffic safety. Section 17 does not prohibit other
types of signs that would be equally distracting to drivers and pedestrians. For example, Gloria’s
neighbors both had signs, one of which was larger than hers and another that also advertised
products for sale that did not violate the Code. The facts also provide that the Code was passed
based on the mayor’s personal belief that For Sale signs in parked cars are dangerous distractions
and that permitting them would make the Village resemble a used car lot. However, when the Code
was enacted Village disregarded a well-known and credible study that found that For Sale signs in
parked vehicles did not increase accidents among pedestrians or motorists. Additionally, the
Village’s concern for aesthetics rings hollow given that the Code allows larger signs along Village
streets and other signs in cars other than For Sale signs advertising that vehicle.
There is not an obvious “immediate connection” between the government’s goal of improved
aesthetics and traffic safety and the regulation banning For Sale signs in cars, but instead only a
weak connection. Moreover, that connection appears to be solely based upon the mayor’s
30
speculation. Therefore, it is unlikely that the Village could sustain its burden as to this prong. See
Edenfield, 507 U.S. at 770-71 (explaining that the government’s “burden is not satisfied by mere
speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial
speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate
them to a material degree”). Consequently, the court would likely conclude that Section 17 of the
Code does not directly advance the claimed substantial interests of the municipality in safety and
aesthetics. See Pagan v. Fruchey, 492 F.3d 766 (6th Cir. 2007) (holding affidavit of town’s police
chief containing conclusory statement that interest in road safety and aesthetics was the reason for
the ban was insufficient to show how the ban on parking of vehicles with potentially distracting
signs inside them would advance those goals in a direct and material way).
Finally, even if the court found the third prong was met, it would still have to address the
fourth prong; i.e., whether the challenged restriction is more extensive than is necessary to serve the
stated interest. The fourth prong of the test does not require government to use the least restrictive
means to achieve its goals, but it does demand “a reasonable fit between the legislature's ends and
the means chosen to accomplish those ends, a means narrowly tailored to achieve the desired
objective.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556 (2001). The Supreme Court has
stated, that “if there are numerous and obvious less-burdensome alternatives to the restriction on
commercial speech, that is certainly a relevant consideration in determining whether the ‘fit’
between ends and means is reasonable.” City of Cincinnati v. Discovery Network, Inc., 507 U.S.
410, 418, n. 12 (1993).
The Village Code is likely not sufficiently narrow to justify the regulation because, while the
Village proffered important goals, the law in question was not tailored to achieve its stated goals. To
achieve its goal, it is easy to imagine a less-burdensome alternative to banning For Sale signs in
parked cars. Village could impose parking regulations prohibiting parking cars on busy streets,
limiting the time when the vehicle can be parked, or the number of such cars that display a For Sale
sign; any of which would be more narrowly tailored to advance the goal of traffic safety. Moreover,
other signs are permitted that are more distracting and perhaps less aesthetically pleasing than a
small For Sale sign in a car; for example, signs advertising jewelry or cosmetics for sale that are not
prohibited. Thus, it does not appear that there is a reasonable fit between the Village’s goals of
aesthetics and traffic safety and the prohibition of For Sale signs in parked cars. Accordingly, the
Village has likely not satisfied the fourth prong of the Central Hudson test. See Burkow v. City of
Los Angeles, 119 F. Supp. 2d 1076 (C.D. Cal. 2000) (holding that Los Angeles’ ban on For Sale
signs in the windows of parked cars on public streets was unconstitutional).
The ordinance described in the question would likely be found to be an unconstitutional
violation of Gloria’s commercial speech rights. Gloria would, therefore, likely prevail in precluding
enforcement of Section 17 of the Code.
2. (a) Amber’s misrepresentation that she had a bachelor’s degree when GP hired her
will not have any effect on GPs ability to defend against Amber’s discrimination claim
when GP discharged her due to her sex.
Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., as amended, prohibits
discrimination in employment on the basis of sex. Specifically, an employer may not “fail or refuse
to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with
31
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual's . . . sex.” 42 U.S.C.A. § 2000e-2(a)(1). Amber was terminated based on a sex
stereotype concerning her ability to juggle motherhood and her job, which constitutes discrimination
under Title VII. See e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (holding that Title
VII's prohibition against sex discrimination precludes employers, absent a bona fide occupational
qualification, from having policies that discriminate on the basis of sex plus other factors such as
having pre-school age children.) Here Amber’s prima facia case of sex discrimination is assumed
for purposes of this question.
Under the facts above, GP did not learn of Amber’s misrepresentation until after she was
terminated for discriminatory reasons, i.e. that she had a child. GP will not be able to use evidence
of Amber’s misrepresentation of her qualifications as a legitimate non-discriminatory reason for
termination because GP did not learn of the misrepresentation prior to discharging her for
discriminatory reasons. In McKennon v. Nashville Banner Publishing Company, 513 U.S. 352
(1995), the Supreme Court held that an employee was not automatically barred from all recovery
under the Age Discrimination in Employment Act (ADEA) when the employer discharged her for
discriminatory reasons and later discovered misconduct by that employee that would have resulted in
her discharge for nondiscriminatory reasons. Thus the Court recognized that an employer could not
replace the discriminatory motive in discharging an employee with a nondiscriminatory one when
the evidence shows the employer did not know of the misconduct prior to the discharge. Id. at 360.
Although McKennon arose in the context of the ADEA, its holding that after-acquired evidence does
not provide a basis to defeat liability for a claim of discrimination is applicable to Title VII claims.
See McKennon, 513 U.S. at 358 (stating that “[t]he ADEA and Title VII share common substantive
features and also a common purpose: ‘the elimination of discrimination in the workplace’”) (citation
omitted).
The McKennon holding has also been applied in Title VII cases where after-acquired
evidence was discovered pertaining to the employee's misrepresentations in a job application rather
than misconduct during employment. See Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072 (3d
Cir. 1995) cert. granted, vacated and remanded 514 U.S. 1034 (instructing Third Circuit to apply
McKennon’s holding, i.e., after discovered evidence of misconduct is relevant to damages but does
not preclude liability, in unlawful discrimination context); Wehr v. Ryan's Family Steak Houses,
Inc., 49 F.3d 1150, 1153 (6th Cir.1995) (examining resume fraud; “we are persuaded by
[McKennon's] language that it applies equally to a Title VII claim.”) aff’d after remand, 99 F.3d
1140 (1996); Wallace v. Dunn Construction Company, 62 F.3d 374 (lst Cir. 1995) (en banc)
(holding McKennon applied to Title VII case where after-discharge acquired evidence showed that
an employee made a misrepresentation on job application). Accordingly, Amber’s misrepresentation
that she had a bachelor’s degree in graphic design will not have any effect on GP’s ability to defend
against her discrimination claim.
2. (b) Amber’s misrepresentation that she had a bachelor’s degree when GP hired her
will likely affect her ability to receive front pay and reinstatement for her
discriminatory discharge.
After-acquired evidence of misconduct does influence the remedy available to an employee
terminated for discriminatory reasons. As a general rule, neither reinstatement nor front pay is an
appropriate remedy in such circumstances. McKennon, 513 U.S. at 361-62; Wallace, 62 F.3d at 380
32
(citing McKennon). “Where an employer seeks to rely upon after-acquired evidence of wrongdoing,
it must first establish that the wrongdoing was of such severity that the employee in fact would have
been terminated on those grounds alone if the employer had known of it at the time of the
discharge.” McKennon, 513 U.S. at 362-63. Where, as here, the after-acquired evidence was of
such severity that it would have led to termination of the employee had the employer known about it,
back pay generally will be limited to the period from the date of the unlawful discharge to the date
the evidence of misconduct was discovered. McKennon, 513 U.S. at 362; Wallace, 62 F.3d at 380
(citing McKennon). The rationale for the rule is that the employer’s exercise of legitimate
prerogatives should not be obstructed and the employee should not be placed in a better position than
she would have occupied absent the discrimination. “Cutting off relief at the time that a legitimate
discharge would have occurred accomplishes these ends.” Shattuck v. Kinetic Concepts, Inc., 49
F.3d 110, 1108-09 (6th Cir. 1995) (interpreting McKennon).
The facts establish that a bachelor’s degree in graphic design was a requirement for Amber’s
position, and that she would have been terminated if the misrepresentation of her qualifications had
been discovered. Although Amber will prevail in her claim of discriminatory termination despite
her misrepresentation, she will likely not be entitled to reinstatement or front pay if GP credibly
testifies that it would have discharged her had it discovered that she did not have a bachelor’s degree
in graphic design. Accordingly, Amber will only be eligible for an award of back pay from the date
of the unlawful discharge to the date the new information was discovered. See McKennon, 513 U.S.
at 362.
3. In ruling on the Motion to Transfer Venue, it is likely that a court would conclude
venue in State X is not more convenient, nor would transfer promote the interests of
justice such as to warrant transfer from the State Y court to State X because State Y is
the location where the material and significant events that underlie the breach action
occurred. Accordingly, Heather’s Motion to Transfer Venue to State X would likely
not succeed.
Generally, in the absence of a specific statutory provision, proper venue is determined by
applying the following:
A civil action may be brought in—
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the court's
personal jurisdiction with respect to such action.
33
28 U.S.C.A. § 1391 (b). Even where original venue is proper, the federal rules allow for a party to
seek transfer of venue to a more convenient forum. The statute entitled Change of Venue, 28
U.S.C.A. § 1404(a), provides the following:
(a) For the convenience of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or division where it might
have been brought or to any district or division to which all parties have consented.
“A motion to transfer venue should be granted upon a showing that the transferee venue is
‘clearly more convenient’ than the venue chosen by the plaintiff.” In re Genentech, Inc., 566 F.3d
1338, 1342 (Fed. Cir. 2009) (citation omitted).
In this case, the parties have not consented to any particular district, and the facts support the
conclusion that the case could have been brought in either State X or State Y. Substantial events
giving rise to GP’s lawsuit for breach of the non-disclosure/non-compete Agreement (Agreement)
have occurred in both states. Heather’s employment agreement was executed in State Y, but her
employment with New Co., that perpetuates her breach of the Agreement, is located in State X.
Therefore, the federal district court would weigh whether transfer will be granted for the convenience
of the parties and witnesses and in the interest of justice. 28 U.S.C.A. § 1404(a).
“In the typical case not involving a forum-selection clause, a district court considering a §
1404(a) motion (or a forum non conveniens motion) must evaluate both the convenience of the
parties and various public-interest considerations. Ordinarily, the district court would weigh the
relevant factors and decide whether, on balance, a transfer would serve ‘the convenience of parties
and witnesses’ and otherwise promote ‘the interest of justice.’” Atlantic Marine, 134 S. Ct. at 581
(citing 28 U.S.C. § 1404(a) (footnote omitted)). The Atlantic Marine Court noted:
Factors relating to the parties' private interests include “relative ease of access to
sources of proof; availability of compulsory process for attendance of unwilling, and
the cost of obtaining attendance of willing, witnesses; possibility of view of premises,
if view would be appropriate to the action; and all other practical problems that make
trial of a case easy, expeditious and inexpensive.” Piper Aircraft Co. v. Reyno, 454
U.S. 235, 241, n. 6 . . . (1981) Public-interest factors may include “the administrative
difficulties flowing from court congestion; the local interest in having localized
controversies decided at home; [and] the interest in having the trial of a diversity case
in a forum that is at home with the law.” Ibid. . . . The Court must also give some
weight to the plaintiffs' choice of forum.
Id. at 581 n. 6 (citing Norwood v. Kirkpatrick, 349 U.S. 29 (1955) (stating that the relevant factors
considered under section 1404(a) are the same as those considered under the doctrine of forum non
conveniens)). The district court should “evaluate both the convenience of the parties and various
public-interest considerations” guided by the factors set forth in Atlantic Marine for a venue transfer
analysis. See Norwood, 349 U.S. at 32. "Section 1404(a) is intended to place discretion in the
district court to adjudicate motions for transfer according to an `individualized, case-by-case
consideration of convenience and fairness.’" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964).
34
Although the Supreme Court did not mandate consideration of any specific factors in
evaluating a motion to transfer venue, federal courts interpreting Rule 1404(a) have recognized the
following:
(1) the convenience of the witnesses; (2) the location of relevant documents and
the relative ease of access to sources of proof; (3) the convenience of the parties;
(4) the locus of operative facts; (5) the availability of process to compel the
attendance of unwilling witnesses; (6) the relative means of the parties; (7) a
forum's familiarity with the governing law; (8) the weight accorded a plaintiff's
choice of forum; and (9) trial efficiency and the interests of justice, based on the
totality of the circumstances.
Kelling v. Hartford Life & Acc. Ins. Co., 961 F. Supp. 2d 1216, 1218 (M.D. Fla. 2013) (quoting
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005)); Jumara v. State Farm Ins.
Co., 55 F.3d 873, 879-80 (3d Cir. 1995) (referring to 15 CHARLES ALAN WRIGHT ET AL. FEDERAL
PRACTICE & PROCEDURE § 3848 AT 385 (2D ED. 1986), and 1A Pt. 2 MOOORE’S FEDERAL PRACTICE ¶
0.345[5]. The Jumara court outlined similar factors stating that there is “no definitive formula or list
of factors[,]” but that courts have considered the following:
(1) the plaintiff’s choice of forum; (2) the defendant’s preference; (3) where the claim
arose; (4) the convenience of the parties; (5) the convenience of the witnesses, but
only to the extent that the witnesses may actually be unavailable for trial in one of the
fora; (6) the location of books and records, similarly limited to the extent that the files
could not be produced in the alternative forum; (7) the enforceability of the judgment;
(8) practical considerations that could make the trial easy, expeditious, or
inexpensive; (9) the relative court congestion in the competing courts; (10) the local
interest in deciding local controversies at home; (11) the public policies of the fora;
(12) and the familiarity of the trial judge with the applicable state law in diversity
cases.
Id.
Examining several of the above and the Atlantic Marine factors, it is likely the Motion to
Transfer Venue to State X would be denied because State X is not a more convenient forum than
State Y based on the considerations underlying Rule 1404.
Concerning the parties’ private interests:
Convenience of Witnesses/Parties
According to the facts, Gloria and Heather will likely be witnesses that will testify at a trial.
Heather lives and works in State X and Gloria lives and works in State Y. GP customers
solicited by Heather are located in State Y and will likely be called to testify about Heather’s
solicitation. Sally, a GP employee located in State Y, had the confidential list of GP
customers and will likely be called to testify to same. Thus, this factor weighs in favor of
venue in State Y.
35
Location of relevant documents and the relative ease of access to sources of proof
The sources of proof mentioned in the question are the non-disclosure/non-compete contract
executed in State Y and the list of GP customers located in State Y. Additional
documentation would include the information about any customers Heather did or did not
solicit on behalf of New Co. and would likely be in State X. Accordingly, this factor appears
to slightly favor venue in State Y.
Location of operative facts
The operative facts are that Heather executed a valid non-compete/non-disclosure Agreement
in State Y. She was performing her duties under the Agreement in State Y. She breached the
Agreement, first, by taking the job with New Co. in adjoining State X and, second, by taking
the names of GP customers. She then began soliciting GP customers on behalf of New Co.,
also in breach of her agreement, while working for New Co. in State X. The operative facts
are situated predominantly in State Y, with some arguably in State X. This factor is
relatively neutral, but still favors venue in State Y.
The plaintiff’s choice of forum
GP’s suit was filed in the eastern district of State Y. This factor favors State Y.
Practical considerations that could make the trial easy, quick, or inexpensive
The question specifies that the distance between the plaintiff’s and defendants’ chosen forum
is 80 miles. This distance would not likely be seen as prohibitive. However, most witnesses
are located in State Y. Thus, this factor favors state Y.
As to the public interests involved:
Administrative difficulties flowing from court congestion
The facts specify that Heather moved for transfer to the congested State X federal district
court. Because State X is congested, this factor would weigh against State X as the preferred
venue.
The forum's familiarity with the governing law
In the question, it is specified that the federal district court in State Y has expertise in non-
compete lawsuits and, therefore, generally renders decisions promptly, which would weigh in
favor of venue in State Y.
Overall, it appears the defendant would not sustain her burden to show that State X was a
more convenient forum considering the relevant factors under Rule 1404(a). The events that
occurred in State Y are not only numerous, they are material and directly give rise to GP’s breach
claim. Pursuant to section 1391(b)(2) of the federal venue statute, a civil action may be brought in
“a judicial district in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is situated[.]” 28 U.S.C. §
1391(b)(2). “[I]n determining whether events or omissions are sufficiently ‘substantial’ to support
venue, a court should ’not focus only on those matters that are in dispute or that directly led to the
filing of the action,’ but rather ‘should review ’the entire sequence of events underlying the claim.’”
Prod. Grp. Int'l, Inc. v. Goldman, 337 F. Supp. 2d 788, 798 (E.D. Va. 2004) (citations omitted).
Here, focusing on the entire sequence of events underlying the breach of the non-compete agreement
claim, the events would likely be seen as supporting venue in State Y. Moreover, GP, as the
36
plaintiff, is entitled to some deference in its choice of forum. There is “a strong presumption in
favor of the plaintiff's choice of forum, which may be overcome only when the private and public
factors clearly point toward trial in the alternative forum.” Prod. Grp. Int'l, 337 F. Supp. 2d at 799
citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981). Consistent with relevant authority, it
is likely that the Motion for Transfer to State X Heather filed will be denied.
37
Question No. 4: Grading Guidelines
1. Constitutional Law – Commercial Speech
Comments: Applicants should demonstrate an understanding of the 4 part Central Hudson test and
how it balances the government’s interests in regulation with the restriction on speech, and apply the
facts to those principles to reach a well reasoned conclusion.
8 points
2. Employment Law - After Discovered Evidence of Misrepresentation of Qualifications
Comments: Applicants should recognize that although a misrepresentation related to a job
requirement could serve as grounds for termination, this fact cannot serve as a legitimate reason for
termination where an employer was not aware of it at that time. Applicants should also recognize
that the misrepresentation of qualifications for the position may have an impact on the remedies
available for discrimination, notably that Amber will not be eligible for reinstatement or front pay.
5 points
3. Civil Procedure – Venue
Comments: Applicants should recognize the parameters for determining venue in a civil case.
Applicants should apply these standards to the facts in the question to determine where venue is
most convenient to reach a well-reasoned conclusion.
7 points
38
Question No. 5
In June 2010, John, a wealthy philanthropist, validly conveyed Blackacre, an old
industrial building in Big City, Pennsylvania, in fee “to the Big City School District (School
District) and its successors and assigns so long as Blackacre is used as a trade school.” John died
in 2011. By valid will, John left any interest in real estate that he owned at his death to Alice.
In January 2013, Fred and Wilma, a married couple, purchased “Homestead,” a tall
building located directly across from Maulers’ Stadium, the home of Big City’s professional
football team. On the top floor of the building were two luxury residences – Suite A, which had
an unobstructed and close-up view of the entire interior of the stadium, and Suite B. The deed
conveying Homestead granted title to Fred and Wilma as “husband and wife.” Fred and Wilma
lived in Suite A. On March 15, 2015, they leased Suite B to Alice for a term of two years.
On January 2, 2015, Peach, Inc., a computer, telephone, and media conglomerate,
announced that it was sponsoring a continuous two day rock concert at Maulers’ Stadium on
June 26 - 27, 2015, to launch its new subscription music streaming service. Peach promoted the
concert as a “once-in-a-lifetime” event featuring performances by the greatest assemblage of
rock stars since Woodstock. The concert sold out within minutes of tickets being put on sale.
Since they planned to be out of town at the time of the concert, Fred and Wilma
advertised the availability of Suite A to view the concert on an online classified list. Ralph saw
the ad and called Fred to express his interest in renting Suite A to view the concert. During the
inspection, Fred told Ralph, “The view from here is so good that you almost feel as if you are
inside the Stadium. I gave up my Mauler season tickets because of this view. This will be a
great place for you to watch that concert.” Ralph agreed and signed an agreement to rent Suite A
from Fred and Wilma during the concert dates for $10,000 with payment due on June 25, 2015.
39
On April 15, 2015, one month after Alice moved into Homestead, the only elevator
servicing Suite B began breaking down so often that it was practically inoperable. When Alice
complained to Fred, he responded, “You can stand to lose a few pounds. Walking up the 15
flights of stairs will be good for you.” On June 9, 2015, a pump used to fill a tank to supply
water to Suite B failed. As a result, Alice had no water for drinking, bathing, and flushing her
toilets. Alice complained numerous times in person, by telephone, and by e-mails to Fred and
Wilma about the lack of water and the elevator. Despite Wilma’s insistence that Fred act on
Alice’s complaints, no repairs were made. Finally, after several weeks, Alice notified Fred and
Wilma in writing, “If you think that ignoring my complaints is going to force me out of my
home, forget it. I’m staying! But I’m not paying a penny in rent until you fix the elevator and
the water.”
1. (a) What property interests were created by John’s conveyance of Blackacre to
the School District?
(b) On July 1, 2015, the School District closed the trade school that it had
operated at Blackacre since the transfer in 2010 due to declining enrollment.
What effect, if any, does the School District’s action have on who owns
Blackacre?
2. On June 23, 2015, all of the rock stars scheduled to perform at the concert
unexpectedly announced that they would not appear because Peach refused to pay
union-scale royalties on their music that Peach made available on its subscription
music streaming service. As a result of this completely unforeseen event, Peach
immediately and permanently cancelled the concert. When Ralph refused to pay
the $10,000 for the rental of Suite A citing the concert’s cancellation, Fred and
Wilma sued Ralph for breach of contract. What contract law theory should Ralph
use in defending this suit, and will it be successful?
3. Fred and Wilma sued Alice for unpaid rent and possession of Suite B. Would
Alice be successful in defending this suit if she asserted the following defenses:
(a) constructive eviction; and (b) breach of an implied warranty of habitability?
4. Due to Fred’s failure to act on Alice’s complaints about Suite B, Fred and Wilma
separated and subsequently divorced. What was the nature of the ownership of
Homestead prior to and after the divorce?
40
Question No. 5: Examiner’s Analysis
1. (a) John’s conveyance of Blackacre to the School District granted a present fee
simple determinable interest in Blackacre to the School District. John retained a
possibility of reverter.
A fee simple determinable is an interest in land which has the potential to last forever like
a fee simple but is subject to a limitation that causes the grantee’s estate to end and revert to the
grantor upon the occurrence of an event specified in the limitation. BOYER, RALPH E.,
HOVENKAMP, HERBERT, & KURTZ, SHELDON F., THE LAW OF PROPERTY: AN INTRODUCTORY
SURVEY, § 5.2, at p. 83 (West Publishing Co. 4th ed. 1991). The use of words of limitation in a
deed such as “so long as,” “during,” “while,” and “until” is commonly viewed as manifesting an
intent to create a fee simple determinable in the grantee. Brown v. Haight, 435 Pa. 12, 17, 255
A.2d 508, 511 (1969); Higbee Corp. v. Kennedy, 286 Pa. Super. 101, 107, 428 A.2d 592, 595
(1981). John used the words “so long as” in his deed conveying Blackacre. By his use of these
particular words of limitation, John granted a fee simple determinable interest in Blackacre to
School District.
Because the grantee’s interest can end upon the happening of a specified event whenever
a fee simple determinable is created, the grantor is always deemed to have retained a future
contingent interest in the property. BOYER, supra, § 7.3, at p. 162. The future interest retained by
the grantor whenever there is the grant of a fee simple determinable is called a possibility of
reverter. Emrick v. Bethlehem Township, 506 Pa. 372, 378, 485 A.2d 736, 739 (1984). By
granting a fee simple determinable to the School District, John also retained a possibility of
reverter.
1. (b) Upon the occurrence of the events stated in the limitation, the School District’s
fee simple determinable interest in Blackacre automatically ended. Because John
had transferred his possibility of reverter in his will, Alice now owns Blackacre in
fee simple absolute.
Unlike a fee simple subject to a condition subsequent, which requires an action on the
part of the grantor to retake or perfect title upon the happening of the event stated in the
condition, a fee simple determinable interest in land automatically ends upon the occurrence of
the event specified in the limitation, and title is transferred to the holder of the possibility of
reverter. Emrick, 506 Pa. at 379, 485 A.2d at 739. When Blackacre was no longer used as a
trade school as specified in John’s deed, School District’s fee simple determinable interest
ended. At that point, John would have become the owner of the property in fee simple absolute
but for his death.
Pennsylvania law has long recognized that a possibility of reverter is “capable of
transmission by inheritance, conveyance or release.” Herr v. Herr, 957 A.2d 1280, 1285 (Pa.
Super. 2008), (quoting, London v. Kingsley, 368 Pa. 109, 116, 81 A.2d 870, 873 (1951)). The
facts state that John transferred any interest in real estate that he owned at his death by will to
Alice. This would have included the possibility of reverter that John retained in Blackacre.
41
Alice need take no action. The title to Blackacre automatically vested in Alice, the
holder of the possibility of reverter, when Blackacre was no longer used as a trade school.
2. Ralph should be able to successfully defend the suit brought by Fred and Wilma
based upon the doctrine of frustration of purpose.
In defense to the suit brought by Fred and Wilma for the non-payment of the $10,000
under the agreement to rent Suite A, Ralph should raise the doctrine of frustration of purpose.
The doctrine of supervening frustration or frustration of purpose is described in the Restatement
(Second) of Contracts as follows:
Where, after a contract is made, a party’s principal purpose is substantially
frustrated without his fault by the occurrence of an event the non-occurrence of
which was a basic assumption on which the contract was made, his remaining
duties to render performance are discharged, unless the language or the
circumstances indicate the contrary.
RESTATEMENT (SECOND) OF CONTRACTS, § 265 (Am. Law Inst. 1981). Pennsylvania law has
long recognized the doctrine of frustration of purpose as a valid defense to the performance of a
contract. Alvino v. Carraccio, 400 Pa. 477, 482, 162 A.2d 358, 361 (1960); Greek Catholic
Congregation of Olyphant Borough v. Plummer, 338 Pa. 373, 382, 12 A.2d 435, 439 (1940).
The doctrine of frustration of purpose specifically applies to a situation where some
change in circumstance has so destroyed the value of a party’s performance as to frustrate the
other party’s purpose in making the contract. To establish a defense under this doctrine, four
conditions must be met: (1) “the purpose that is frustrated must have been a principal purpose of
that party in making the contract” and the other party was aware of that purpose; (2) “the
frustration must be substantial[;]” (3) “the non-occurrence of the frustrating event must have
been a basic assumption on which the contract was made[;]” and (4) the frustration must occur
without the fault of the party claiming frustration. RESTATEMENT (SECOND) OF CONTRACTS, §
265, cmts. a & b; see also, JOHN E. MURRAY, JR., MURRAY ON CONTRACTS, § 115 (B), at 734-35
(5th ed. 2011). In considering the doctrine of frustration, courts are directed to examine the
circumstances in which the contract was made in order to determine if the bargain was made on
the basis that a “particular thing or state of things” would continue to exist. Alvino, 400 Pa. at
482, 162 A.2d at 361.
The facts in this case, which are substantially similar to Krell v. Henry, 2 KB 740 (1903),
the famous “Coronation Case,” support the conclusion that Ralph’s duty to pay Fred and Wilma
for the rental of Suite A should be excused based upon frustration of the contract’s purpose.
Ralph’s principal purpose in renting Suite A clearly was to view the concert. The facts
specifically state that after seeing the ad, Ralph called Fred to express his interest in renting Suite
A to view the concert. Further, when Ralph inspected Suite A, Fred told him, “This will be a
great place for you to watch that concert.” Thus, both parties not only were aware that the
concert was a basic assumption on which the contract was made, but that it also was Ralph’s
principal purpose in agreeing to rent Suite A.
42
The Restatement provides that a party’s frustration of purpose is considered “substantial”
when it is “so severe that it is not fairly to be regarded as within the risks . . . assumed under the
contract.” RESTATEMENT (SECOND) OF CONTRACTS, § 265, cmt. a. Here, there is no indication
that the parties gave any thought to a possibility that the concert would not go off as scheduled or
that they intended Ralph to bear the risk of loss for that possibility. Moreover, the facts
described the supervening event that caused the frustration of purpose as being “completely
unforeseen.” The foreseeability of the supervening event is a factor that must be considered in
determining whether the risk of loss should be assumed by the party seeking to be excused from
the contract. MURRAY ON CONTRACTS, supra, at 735. Based upon the severity of the frustration,
the absence of any allocation of risk, and the unforeseen nature of the supervening event, Ralph’s
frustration of purpose would be considered “substantial” as Ralph’s purpose in renting the suite
was to watch the now-cancelled concert.
Finally, the supervening event that caused the frustration of purpose did not happen
through any fault on the part of Ralph. The facts state that the supervening event that caused the
frustration of purpose was Peach’s refusal to pay the concert’s performers union scale royalties
on the performers’ music made available on Peach’s subscription streaming service.
Once a party has demonstrated a frustration of purpose, that party’s obligation to render
performance is discharged unless the language or the circumstances indicate the contrary.
RESTATEMENT (SECOND) OF CONTRACTS, § 265. “Once … frustration of purpose occurs, ‘it is up
to the parties to waive the difficulties or seek to terminate the agreement.’” Hart v. Arnold, 884
A.2d 316, 335 (Pa. Super. 2005) (quoting, Ellwood City Forge Corp. v. Fort Worth Heat
Treating Co., Inc., 431 Pa. Super. 240, 249, 636 A.2d 219, 223 (1994)). Because Ralph can
demonstrate the elements necessary for asserting the defense of frustration of purpose, his duty
to pay Fred and Wilma for the rental of Suite A was discharged. Accordingly, Ralph’s use of the
doctrine of frustration of purpose in defense of the suit brought by Fred and Wilma for non-
payment of the rent for Suite A will be successful.
3. (a) Alice’s defense to the suit of Fred and Wilma seeking unpaid rent and
possession of Suite B based upon constructive eviction would not be successful.
Under Pennsylvania law, there is an implied covenant of quiet enjoyment of the premises
in every lease. Under this implied covenant, a landlord promises that neither the landlord nor
anyone with a paramount title will wrongfully interfere with the tenant’s enjoyment and
possession of the leased premises. BOYER, supra, § 9.7, at 273-74.
The wrongful actions of the landlord which interfere with the tenant’s enjoyment and
possession of the leased premises, in whole or in part, are considered an eviction. Kelly v.
Miller, 249 Pa. 314, 316-17, 94 A. 1055, 1056 (1915). Forcible or physical expulsion of the
tenant from the leased premises is not necessary to constitute an eviction. Adler v. Sklaroff, 154
Pa. Super. 444, 447, 36 A.2d 231, 233 (1944). The modern view is that an eviction can
constructively occur when a landlord “deprives a tenant of the beneficial enjoyment of the
demised premises and manifests an intent to hold adversely to the tenant.” Walnut-Juniper Co.
v. McKee, Berger & Mansueto, Inc., 236 Pa. Super. 1, 5, 344 A.2d 549, 551 (1975).
43
A tenant’s allegations of an eviction, if proven, suspend the obligation to pay rent and
constitute a valid defense to liability under a lease. Id. To properly assert the defense of
constructive eviction, the tenant must prove two things. First, the tenant must show that the
interference by the landlord with the tenant’s enjoyment of the leased premises is of a substantial
nature and so injurious to the tenant that it deprives him of the beneficial enjoyment of all or part
of the leased premises. Second, the tenant must in fact give up or abandon possession of the
premises. Kuriger v. Cramer, 345 Pa. Super. 595, 609, 498 A.2d 1331, 1338 (1985).
In this case, the failure to repair the elevator and the pump providing water to Suite B for
an extended period most likely would be regarded as substantially interfering with Alice’s
beneficial enjoyment of all or part of Suite B. The facts, however, state that Alice continued to
reside in Suite B. Because she did not abandon the leased premises, Alice would not be
successful in asserting a defense of constructive eviction to the suit of Fred and Wilma seeking
unpaid rent and possession of Suite B.
3. (b) Alice’s defense to the suit based upon breach of the implied warranty of
habitability would be successful.
Pennsylvania law also implies a warranty of habitability in all residential leases. Under
this warranty, the landlord represents that the leased premises will be free of defects “of a nature
and kind which will prevent the use of the dwelling for its intended purpose to provide premises
fit for habitation by its dwellers.” Pugh v. Holmes, 486 Pa. 272, 289, 405 A.2d 897, 905 (1979).
A breach of the implied warranty of habitability may serve not only as the basis of a complaint,
but also as a defense or a counterclaim to a landlord’s suit for rent or possession. Kuriger, 345
Pa. Super. at 606, 498 A.2d at 1336.
To assert a claim of breach of the implied warranty of habitability, a tenant first must
show that the defect in the leased premises is material. Materiality of the breach is a question to
be decided by the trier of fact on a case-by-case basis and is to be determined by examination of
factors such as regulatory code standards and the nature, seriousness, and duration of the defect.
Pugh, 486 Pa. at 289, 405 A.2d at 905-06. “‘Additionally, . . . a tenant must prove [that] he or
she gave notice to the landlord of the defect or condition, that [the landlord] had a reasonable
opportunity to make the necessary repairs, and the that [the landlord] failed to do so.’” Staley v.
Bouril, 553 Pa. 112, 117, 718 A.2d 283, 285 (1998) (quoting, Pugh, 486 Pa. at 290, 405 A.2d at
906).
A number of remedies are available to a tenant who can demonstrate a breach of the
implied warranty of habitability. These remedies include: (1) the termination of the obligation
to pay rent where the tenant surrenders the possession of the premises; (2) full or partial rent
abatement where the tenant remains in possession of the premises; (3) the right for the tenant to
repair the defect or condition and to deduct the cost of the repair from the rent; and (4) other
traditional contract remedies such as specific performance. Pugh, 486 Pa. at 291-95, 405 A.2d at
907-08.
The facts here support Alice’s successful assertion of a breach of the implied warranty of
habitability as a defense to Fred and Wilma’s suit. Alice can argue to the trier of fact that the
44
lack of an operating elevator in a tall building and the lack of water for drinking, bathing, and
toileting are material violations of health and safety standards in modern housing and health
codes. Additionally, Alice gave Fred and Wilma notice of the defects on the leased premises and
an opportunity to make repairs by making numerous telephone calls and sending e-mails for
several weeks complaining about the conditions at Suite B. Finally, Alice exercised a remedy
expressly recognized for breach of the implied warranty of habitability: withholding rent. Based
on the total material breach of the implied warranty of habitability, Alice’s obligation to pay rent
was abated in full, and the action for possession would fail because there would not be any
unpaid rent.
Based upon the stated facts, Alice would be successful in asserting the breach of the
implied warranty of habitability as a defense to Fred and Wilma’s suit seeking unpaid rent and
possession of Suite B.
4. Fred and Wilma received title to Homestead as tenants by the entireties. Upon their
divorce, the tenancy by the entireties was severed and each would own an undivided
one-half interest in Homestead as tenants in common.
Tenancy by the entireties is a form of joint ownership of property that exists only
between a husband and a wife. Maxwell v. Saylor, 359 Pa. 94, 96, 58 A.2d 355, 356 (1948).
Under Pennsylvania law, the conveyance of real estate to two grantees who are husband and wife
is presumed to create a tenancy by the entireties unless the deed shows a different intent. Holmes
Estate, 414 Pa. 403, 406, 200 A.2d 745, 747 (1964). The deed to Homestead stated that title to
the property was conveyed to Fred and Wilma as “husband and wife.” Based upon this
language, Fred and Wilma initially owned Homestead as tenants by the entireties.
A tenancy by the entireties is predicated upon legal unity of husband and wife as one
person or unit. Beihl v. Martin, 236 Pa. 519, 522, 84 A. 953, 954 (1912). From the inception of
the estate, “each spouse is seized of the whole or the entirety and not of a share, moiety, or
divisible part.” Gasner v. Pierce, 286 Pa. 529, 531, 134 A. 494, 495 (1926) (citation omitted).
Because a tenancy by the entireties is grounded in the conception of the estate as a single
indivisible unit, neither spouse can terminate or sever the tenancy by his own conveyance or take
any action to adversely affect the other’s right of survivorship and rights to enjoy and possess the
property. 1 RONALD M. FRIEDMAN, LADNER PENNSYLVANIA REAL ESTATE LAW, § 8.04(c)
(George T. Bisel Co., Inc. 6th ed. 2013) (citations omitted).
The legal unity of person existing in a tenancy by the entireties, however, is destroyed by
the divorce of the parties. The general rule set forth in Section 3507 of the Pennsylvania Divorce
Code is that a divorce severs the tenancy by the entireties and the resulting joint interest of the
parties in the property becomes a tenancy in common. 23 Pa. C.S. § 3507(a).
A tenancy in common is an estate in which there is unity of possession but separate and
distinct titles. In Re Estate of Quick, 588 Pa. 485, 490, 905 A.2d 471, 474 (2006). A right of
survivorship does not exist in a tenancy in common. FRIEDMAN, supra, § 8.03.
45
Under the facts, title to Homestead was conveyed to Fred and Wilma as tenants by the
entireties. Their subsequent divorce severed the tenancy by the entireties and created a tenancy
in common. As tenants in common, Fred and Wilma each own an undivided one-half interest in
the property.
46
Question No. 5: Grading Guidelines
1. Fee Simple Determinable and Possibility of Reverter
Comments: Candidates should correctly identify the applicable interests as a fee simple
determinable and a possibility of reverter. Candidates should discuss what language is needed to
create a fee simple determinable and the rights associated with a possibility of reverter.
5 Points
2. Frustration of Purpose
Comments: Candidates should recognize the applicability of the defense of supervening
frustration or frustration of purpose. Candidates should discuss the elements necessary to assert
a defense of frustration of purpose and apply these elements to the stated facts in the course of
reaching a well-reasoned conclusion.
6 Points
3. Constructive Eviction and Implied Warranty of Habitability in a Residential Lease
Comments: Candidates should discuss the elements necessary to assert constructive eviction and
breach of the implied warranty of habitability as a defense to an action and the remedies
available to a party asserting these defenses. Candidates should analyze the stated facts in
reaching a well-reasoned conclusion regarding whether these two theories can be successfully
asserted as defenses.
6 Points
4. Severance of a Tenancy by the Entireties by Divorce
Comments: Candidates should recognize that a tenancy by the entireties is a form of joint
ownership of property that exists only between a husband and a wife and discuss Pennsylvania
law’s presumption that a conveyance to a husband and wife creates a tenancy by the entireties.
Candidates should recognize that a divorce severs the tenancy by the entireties and results in the
joint interest of the parties in the property becoming a tenancy in common with each co-tenant
owning an undivided one-half interest in the property.
3 Points
47
Question No. 6
Farm, Inc. (“Farm”) is a Pennsylvania corporation that operates several fruit farms in
Pennsylvania. Farm has its fruit processed into various jams and jellies. Farm does not own a
commercial kitchen for processing its fruit. Instead, Farm pays Kitchen, Inc. (“Kitchen”) to
process and package its fruit for sale by Farm in jars labeled “Farm Jams and Jellies.”
Farm has two shareholders, Bob and Karen, who serve as Farm’s board of directors and
officers. When Farm was formed, Bob provided the cash needed for it to begin operations and
received 90% of Farm’s stock. Karen, an experienced fruit grower, agreed to operate Farm with
the understanding that Bob would transfer stock to her over time until they became 50/50
owners. Bob has refused numerous requests from Karen to transfer stock to her.
Karen has learned that Kitchen is for sale. If Farm acquired Kitchen, which it has the
financial capability to do, Farm could increase its profit margins and streamline fruit processing.
Frustrated by Bob’s unwillingness to transfer stock, Karen has decided not to tell Bob about
Kitchen being for sale and, instead, has decided to secretly buy Kitchen on her own and keep the
processing profits for herself.
Three weeks ago Farm purchased a used tractor from Equipment, a Pennsylvania
equipment retailer. Karen was told the tractor was used. Equipment made no representations
regarding the quality or suitability of the tractor for Farm’s needs. The sales agreement, signed
by Karen, stated in bold print on page one: “THIS TRACTOR IS SOLD AS IS AND WITH
ALL FAULTS.” Since its purchase, Farm has only been able to use the tractor two days. It
otherwise has repeatedly been in the shop for various repairs.
Blackacre is a 100 acre tract in Pennsylvania that adjoins one of Farm’s parcels. Farm
would like to acquire Blackacre and has had the title checked to see who owns Blackacre so it
48
can approach the owner. The title report indicates that Tony, a lifelong resident of State Y, is the
record owner of Blackacre. Tony died two months ago. His will has been probated in State Y,
and an ancillary estate has been opened in Pennsylvania. Tony’s will specifically devises
Blackacre to Nancy, his niece, a Pennsylvania resident. Tony has one child, Sonny, who is the
residuary beneficiary under Tony’s will.
The title report shows that prior to his death, Tony had sold Blackacre to a third party.
Tony financed the sale to the third party and took back a mortgage to secure the financing.
When the third party defaulted on the loan, Tony foreclosed, and the third party delivered a deed
for Blackacre back to Tony in lieu of foreclosure prior to Tony’s death.
Under State Y law, Tony’s lifetime sale of Blackacre results in an ademption.
Consequently, under State Y law, Blackacre would now be part of Tony’s residuary estate.
Under Pennsylvania law, however, a devisee of specifically devised property has a right to any
of that property owned by the testator at his death even if obtained in lieu of foreclosure on the
security for the specifically devised property. Thus, under Pennsylvania law, there would be no
ademption and Blackacre would pass to Nancy. Nancy and Sonny intend to litigate the right to
ownership of Blackacre in the appropriate Pennsylvania court.
1. (a) If Karen purchases Kitchen and Bob later learns of Karen’s purchase of
Kitchen, under Pennsylvania corporate law, what substantive argument should
Farm assert to challenge Karen’s purchase?
(b) In such a challenge, what remedy(s) might Farm seek?
2. Other than the warranty of good title, what implied warranties are potentially
applicable under the Uniform Commercial Code with respect to the tractor, and
could Farm successfully sue Equipment for breach of these warranties?
3. Assuming the Pennsylvania court where Blackacre is located is the proper forum
to resolve the Blackacre ownership issue, in deciding who should receive
Blackacre, which state’s law should the Pennsylvania court apply, and with what
result?
49
Question No. 6: Examiner’s Analysis
1. (a) Farm should assert that Karen has breached her duty of loyalty to Farm and
has taken advantage of a corporate opportunity to the detriment of Farm.
The Pennsylvania Business Corporation Law of 1988, as amended, (the “BCL”) states,
“[a] director of a business corporation shall stand in a fiduciary relation to the corporation and
shall perform his duties as a director . . . in good faith, in a manner he reasonably believes to be
in the best interests of the corporation.” 15 Pa. C.S.A. § 1712(a). This is often referred to as the
duty of loyalty. Section 1712(c) of the BCL similarly imposes a duty of loyalty upon corporate
officers. Directors of a corporation have been analogized to trustees of a trust with the
shareholders of the corporation being the beneficiaries of the trust. See, 3 W. EDWARD SELL &
WILLIAM H. CLARK, JR., Pennsylvania Business Corporations, § 1712.3 (Rev. 2d ed. 1997). As
such, “a director acting in good faith will not put herself in a position where her personal
interests conflict with her duty to the corporation.” Id. § 1712.4.
Karen’s acquisition of Kitchen presents a classic “corporate opportunity” situation. “The
law has long recognized the doctrine of corporate opportunity which prohibits one who occupies
a fiduciary relationship to a corporation from acquiring, in opposition to the corporation,
property in which the corporation has an interest or tangible expectancy or which is essential to
its existence.” Fletcher Cyc. Corp., § 861.10 (Perm. ed. 1994). A corporate opportunity is said
to exist “when a proposed activity is reasonably incident to the corporation’s present or
prospective business and is one in which the corporation has the capacity to engage.” Id.
Directors “must devote themselves to the corporate affairs with a view to promote the common
interests and not their own, and they cannot, either directly or indirectly, utilize their position to
obtain any personal profit or advantage other than that enjoyed also by their fellow
shareholders.” Seaboard Industries, Inc. v. Monaco, 442 Pa. 256, 261-62, 276 A.2d 305, 309
(1971) (citations omitted). The Seaboard court further stated:
In short, there is demanded of the officer or director of a corporation that he
furnish to it his undivided loyalty; if there is presented to him a business
opportunity which is within the scope of its own activities and of present or
potential advantage to it, the law will not permit him to seize the opportunity for
himself; if he does so, the corporation may elect to claim all of the benefits of the
transaction.
Id. at 262, 276 A.2d at 309.
Karen had a duty to disclose to Farm (and for all practical matters to Bob) her knowledge
of the fact that Kitchen was for sale. If, after full and fair disclosure of the opportunity to the
corporation, it chose not to avail itself of the opportunity then the director could, assuming no
other conflict exists, pursue the opportunity. SELL & CLARK, supra. § 1712.6. “Thus, the
appropriate method to determine whether or not a corporate opportunity exists is to let the
corporation decide at the time the opportunity is presented.” Fletcher, supra § 861.10. It should
be noted that even if Farm had passed on the opportunity, thereby allowing Karen to purchase
50
Kitchen, that any contract between Kitchen and Farm would have to pass muster under any
applicable conflict of interest rules due to the fact that Karen would then own a business that is
doing business with another business in which she was a board member. See, SELL & CLARK,
supra § 1712.
The facts indicate that obtaining Kitchen would enhance Farm’s operations and increase
its profits. Farm has the financial capability to purchase Kitchen. Farm has been paying Kitchen
to process its fruit and having its own processing kitchen would likely increase its margins and
profitability. Karen appears to be acting out of spite to Bob and her usurpation of the Kitchen
opportunity flies directly in the face of her duty of loyalty to Farm and its other shareholder,
Bob. Karen should not have taken advantage of the opportunity until she first fully disclosed it
to the board (basically Bob) and if the board had rejected the opportunity, she could then have
proceeded with her purchase of Kitchen. Karen purchased Kitchen without first giving Farm the
opportunity to act, and as a result she breached her duty of loyalty to Farm.
1. (b) Farm most likely will seek the impression of a constructive trust and an
accounting from Karen.
“The corporate opportunity doctrine rests upon the broad foundation of public policy that,
for the purpose of removing all temptation, extinguishes all possibility of profit flowing from a
breach of the confidence imposed by the fiduciary relation.” Fletcher, supra, § 861.50.
Accordingly, a director who breaches her duty of loyalty to a corporation by usurping an
opportunity that properly belongs to the corporation will not be allowed to benefit from her
breach. Id.
The remedies for usurpation of a corporate opportunity will generally lie in equity. See
SELL, supra, § 1712.3. The remedy most often applicable to a misappropriation of corporate
opportunity is the imposition of a constructive trust for the benefit of the corporation upon the
property or opportunity. See, Fletcher, supra, §861.50. A constructive trust is a relationship
with respect to property usually subjecting the title holder to an equitable duty to convey the
property to another who has been wrongfully deprived of the property resulting in unjust
enrichment to the one upon whom the constructive trust is imposed. RESTATEMENT (THIRD) OF
TRUSTS, § 1.e. (AM LAW INST. 2003). “A constructive trust is imposed not necessarily to
effectuate an expressed or implied intention, but [instead seeks] to redress a wrong or to prevent
unjust enrichment.” Id. On occasion, courts have also required the party who has usurped the
corporate opportunity to account for all profits derived because of the usurpation of opportunity
and to pay over those profits for the benefit of the corporation. See Seaboard Industries, Inc. v.
Monaco, 442 Pa. 256, 276 A.2d 305 (1971).
Accordingly, Farm could seek the imposition of a constructive trust upon the Kitchen
opportunity taken by Karen. Farm could also ask the court to compel Karen to account for any
profits derived as a result of her usurpation of the opportunity.
51
2. The implied warranties of merchantability and fitness for particular purpose could
potentially arise from the sale of the tractor. While only the warranty of
merchantability is breached under the facts, Farm would not be successful in a suit
claiming breach of either warranty because the warranties were disclaimed when
Equipment sold the tractor “as is and with all faults.”
Article II of the Pennsylvania Uniform Commercial Code (the “Code”) generally applies
to transactions involving the sale of goods. 13 Pa. C.S.A. § 2102. Under the Code, “goods”
consist of “all things (including specially manufactured goods) which are movable at the time of
identification to the contract for sale other than money in which the price is to be paid,
investment securities (Division 8) and things in action.” 13 Pa. C.S.A. § 2105(a). Thus, the
tractor sold by Equipment is a “good” under the Code.
Other than the warranty of good title and the warranty against infringement, the Code
generally provides for two implied warranties that might be asserted in connection with the sale
of a good. Section 2314 implies a warranty of merchantability and Section 2315 a warranty of
fitness for particular purpose. The implied warranty of fitness for a particular purpose requires
that “the seller at the time of contracting has reason to know: (1) any particular purpose for
which the goods are required; and (2) that the buyer is relying on the skill or judgment of the
seller to select or furnish suitable goods.” 13 Pa. C.S.A. § 2315. It is unlikely that the implied
warranty of fitness for particular purpose would be implicated under the facts. For this warranty
to apply Equipment would have to have had reason to know the particular purpose for which the
tractor was required by Farm, and that Farm was relying on the skill and judgment of Equipment
to select or furnish a suitable tractor. The facts do not suggest that this was the case and instead
indicate that Equipment did not make any representations regarding the quality or suitability of
the tractor upon which Farm could have relied. Therefore, this warranty would not likely be
applicable.
The implied warranty of merchantability provides in relevant part the following:
(a) Sale by merchant. - Unless excluded or modified (section 2316), a warranty
that the goods shall be merchantable is implied in a contract for their sale if the
seller is a merchant with respect to goods of that kind. . . .
(b) Merchantability standards for goods. - Goods to be merchantable must be at
least such as:
* * *
(3) are fit for the ordinary purposes for which such goods are used.
13 Pa. C.S.A. § 2314.
Equipment clearly is a merchant as the facts state that it sells new and used farm
equipment. A merchant is “[a] person who: (1) deals in goods of the kind; or (2) otherwise by
his occupation holds himself out as having knowledge or skill peculiar to the practices or goods
involved in the transaction or to whom such knowledge or skill may be attributed by his
52
employment of an agent or broker or other intermediary who by his occupation holds himself out
as having such knowledge or skill.” 13 Pa. C.S.A. § 2104.
The facts state that Farm was only able to use the tractor for two days and the rest of the
three weeks that Farm owned it, the tractor was repeatedly in the shop for various repairs.
Consequently, the tractor when sold does not appear to have been fit for its ordinary purpose,
i.e., use as a tractor. Thus, it appears that this warranty could apply.
Assuming that either of the foregoing warranties applies, the warranty claims should be
barred by the disclaimer that appears in the agreement of sale. The Code addresses the manner
in which a merchant may disclaim implied warranties. See 13 Pa. C.S.A. §2316. Section 2316
provides, inter alia:
(b) Implied warranties of merchantability and fitness.—Subject to subsection (c),
to exclude or modify the implied warranty of merchantability or any part of it the
language must mention merchantability and in case of a writing must be
conspicuous, and to exclude or modify any implied warranty of fitness the
exclusion must be by a writing and conspicuous. Language to exclude all implied
warranties of fitness is sufficient if it states, for example, that “There are no
warranties which extend beyond the description on the face hereof.”
(c) Implied warranties in general. - Notwithstanding subsection (b):
(1) Unless the circumstances indicate otherwise, all implied warranties
are excluded by expressions like “as is,” “with all faults” or other
language which in common understanding calls the attention of the buyer
to the exclusion of warranties and makes plain that there is no implied
warranty.
13 Pa. C.S.A. §2316.
The sales agreement clearly states that the tractor is being sold “as is and with all faults.”
The “as is and with all faults” language is in bold print and appears on the first page of the
agreement. Absent circumstances that would indicate otherwise, none of which appear to be
present, the “as is and with all faults” language should protect the seller from implied warranty
claims. Terms such as those appearing in this contract “are understood to mean that the buyer
takes the entire risk as to the quality of the goods involved.” Thomas M. Quinn, Uniform
Commercial Code Commentary and Law Digest, § 2-316[A][3][c] (1991). Accordingly, any
claims asserted by Farm under these implied warranties are likely to fail because of the
disclaimer language included in the sales agreement.
3. The Pennsylvania court should apply the law of Pennsylvania in determining
whether or not an ademption has occurred, which will result in a conclusion that no
ademption has occurred, and title to Blackacre will pass to Nancy under the will.
53
The facts present a conflict of laws issue regarding the disposition of real property
located in Pennsylvania under a will of a State Y testator. The will was probated in State Y.
Under State Y law, Tony’s conveyance of Blackacre during his lifetime would affect an
ademption thus depriving Nancy, the specific devisee of Blackacre, of her devise upon Tony’s
death. Under Pennsylvania law, a specific devisee can essentially follow the devised property
conveyed during the lifetime of the testator or can follow a mortgage or re-conveyance by deed
in lieu of foreclosure. See, 20 Pa. C.S.A. § 2514 (18). Under Pennsylvania law Nancy would be
entitled to receive Blackacre.
Generally, questions regarding the disposition of land, as affected by interpretation of
wills, are governed by the law of the state where the land is located. The Restatement of Conflict
of Laws provides with respect to construction of a will devising land, “In the absence of [a
designation to the contrary in the will], the will is construed in accordance with the rules of
construction that would be applied by the courts of the situs.” RESTATEMENT (SECOND) OF
CONFLICT OF LAWS § 240(2) (1971). The Pennsylvania Supreme Court has stated:
[I]t is a principle of private, international law, fortified by a great mass of
authority, that all questions relating to the transfer of title to land wherever arising
will be governed by the laws of the place where the land is situated. . . . This
principle is applicable to questions relating to the effect of language in wills of
testators not domiciled in the dominant situs. . . . Specifically, whether the sale of
devised land operates as an ademption is governed by the law of the situs.
In re Dublin’s Estate, 375 Pa. 599, 603-04, 101 A.2d 731, 733 (1954) (citations omitted). “The
situs state of realty is generally entitled to the severest deference. . . . That the laws of the situs
state should govern the devise of real property is a sound principle, articulated in both
Restatements of Conflict of Laws, and in the consistent statements of this Court.” In re Estate of
Janney, 498 Pa. 398, 401-02, 446 A.2d 1265, 1266 (1982). The situs of the land rule is widely
recognized when title to land is involved. Id.
The court should apply the situs rule set forth above. Pennsylvania has the greatest
interest in regulating the transfer of title to land within its boundaries. Predictability and
certainty in matters of title transference are paramount in all states. Id.
Given the situs rule, the Pennsylvania court should apply Pennsylvania law, which will
have the effect of finding that an ademption has not occurred. Accordingly, Nancy should
receive Blackacre.1
1 If one were to be unaware of the “situs” rule and would analyze this issue using the general Restatement principal
that a state should apply the local law of the state which has the most significant relationship to the thing or the
parties the result should be the same. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 222 (1971). The land in
question is located in Pennsylvania and the courts of that state clearly have an interest in predictability relative to
transfers of property within the state. The Restatement of Conflict of Laws observes “both the convenience of title
searchers and the security of titles would be served if the rules of construction of the situs were always applicable.
Otherwise, there would be situations, perhaps uncertain both in their nature and number, where the rules of
construction of one or more other states would have to be consulted.” RESTATEMENT (SECOND) OF CONFLICTS OF
LAWS, 240(2), cmt. f.
54
Question No. 6: Grading Guidelines
1. (a) Corporate opportunity doctrine
Comments: Candidates should recognize that usurpation of a corporate opportunity violates a
director’s duty of loyalty to the corporation and that to comply with the duty the director should
have recognized that the opportunity would benefit the corporation and should have disclosed it
to the corporation.
5 points
1. (b) Remedies for usurpation of corporate opportunity
Comments: Candidates should discuss the equitable remedies of impression of a constructive
trust and an accounting to allow the corporation to receive the benefit of the opportunity and any
profits.
4 points
2. Implied warranties under the Uniform Commercial Code—Sales and disclaimer
Comments: Candidates should identify the two implied warranties that might arise under the
Uniform Commercial Code and briefly explain each. The candidates should then discuss the
existence of the conspicuous disclaimer and the effect of the disclaimer upon any claims for
breach of implied warranty.
7 points
3. Choice of law
Comments: The candidates should recognize that this is a conflict of law issue. They should
recognize that it involves a devise of real property and discuss how the conflict rules might be
applied.
4 points
55
PT
Supreme Court of Pennsylvania
Pennsylvania Board of Law Examiners
Pennsylvania Bar Examination
February 24 and 25, 2015
PERFORMANCE TEST
February 24, 2015
Use GRAY covered book for your answer to the Performance Test.
© 2015 Pennsylvania Board of Law Examiners
PLACE BAR CODED APPLICANT LABEL HERE
Question Number 3
on CBT Software
56
TABLE OF CONTENTS
FILE
Memorandum to applicant outlining task ........................................................................................1
Complaint .........................................................................................................................................2
Affidavit of Emily Jaeger .................................................................................................................3
LIBRARY
Statute
42 Pa. C.S. §5322 .............................................................................................................................4
Case law
Mendel v. Williams...........................................................................................................................5
57
FILE
58
MEMORANDUM
TO: Applicant
FROM: Jean Kerwick, Managing Partner
CLIENT: Esther Energy Industries, Client # 062470
DATE: February 23, 2016
SUBJECT: Assignment to Draft Legal Memorandum
We represent Esther Energy Industries (EEI), which has just been sued in Pennsylvania court by a
disgruntled, recently terminated manager, Margaret Anderson. In her complaint, Ms. Anderson is
seeking damages from EEI for wrongful discharge. See Complaint. I intend to file preliminary
objections to have the Complaint dismissed based on a lack of personal jurisdiction, among other
grounds.
I have already drafted an argument concluding that there is no basis for finding that general
jurisdiction exists against EEI and have identified the relevant research to support an argument that
specific jurisdiction against EEI is also not available. Your assignment is to draft a persuasive
memorandum of law setting forth all arguments that can be advanced to support the conclusion that
the court lacks specific personal jurisdiction over EEI. You should raise arguments that can be
advanced to support our position in the alternative even if inconsistent with a prior argument. Your
argument should reference the applicable standards for ruling on preliminary objections based on a
lack of personal jurisdiction and apply the relevant legal principles to the facts to demonstrate the
reasoning that supports your conclusion.
Your legal memorandum will assist me in drafting a brief in support of preliminary objections to
Anderson’s Complaint. While other issues exist that could serve as a basis for preliminary
objections, you are to limit your memorandum to the issues identified above.
Attached is an affidavit from the Corporate Secretary of EEI. Our client will execute this affidavit
and we will attach it to our preliminary objections. The facts set forth in the affidavit are
uncontroverted and may be used in drafting your memorandum.
Authority
My research includes Pennsylvania’s Long Arm Statute and the attached relevant excerpts of an
applicable case, which you should rely upon when drafting your memorandum. Do not rely upon
your personal knowledge of these issues, or on cases and statutes that are not included in the
attached File and Library. Instead, you should base your analysis and conclusions only upon the
documents provided in the File and the Library.
Format
Please make sure your document is in the form of a legal memorandum, with a header similar to the
header on this page. Insert in the subject line “Legal Memorandum,” address your memorandum to
me, and list yourself as “Applicant” in the “From” line. Formal Bluebook citations are not required;
however, you must sufficiently identify each document, whether it be the case, statute, complaint, or
affidavit such that I will know to what document you are referring in your memorandum.
59
Margaret Anderson, Plaintiff : IN THE COURT OF COMMON PLEAS
:
v. : OF FENDICK COUNTY
:
Esther Energy Industries, Defendant : CIVIL ACTION – LAW
: NO. 631995 of 2016
COMPLAINT
AND NOW, comes Margaret Anderson, by and through her attorney, and respectfully
states to this Honorable Court:
1. The Plaintiff is Margaret Anderson, who resides at 1 Naysayer Street, Smith City,
Fendick County, Pennsylvania (Ms. Anderson is hereinafter referred to as “Plaintiff”).
2. The Defendant is Esther Energy Industries, a Delaware corporation that owns
property in the Commonwealth of Pennsylvania (hereinafter referred to as “Defendant”).
3. Defendant’s property interests in Pennsylvania constitute continuous and
substantial activities that have been and are carried out in Pennsylvania.
4. At all times material hereto, the Plaintiff was an employee of Defendant.
5. Plaintiff’s primary duties included overseeing the rental operations of Defendant’s
building in Pennsylvania, including reviewing leases, billing tenants, and depositing rent checks
received from tenants of the building in Pennsylvania. Plaintiff also visited the facility in
Pennsylvania on two occasions: once to sign a lease, and on another occasion to inspect storm
damage to the building.
6. Plaintiff was called to serve on jury duty in County Y in Oklahoma beginning on
Monday, December 28, 2015, and was forced to miss the entire week of work to perform her
service as a juror.
7. On Monday, January 4, 2016, Plaintiff drove to her office in Oklahoma, at which
time she was informed by her manager that she had been fired.
8. Plaintiff was terminated without legitimate cause; and was fired for serving on a
jury, which was required under Oklahoma law.
9. Due to her wrongful termination, Plaintiff is entitled to be compensated.
WHEREFORE, the Plaintiff prays this Honorable Court enter judgment in Plaintiff’s
favor in an amount exceeding the arbitration limits applicable to her claim.
Respectfully Submitted:
By: Maria Myers Maria Myers, Counsel to Plaintiff
60
Margaret Anderson, Plaintiff : IN THE COURT OF COMMON PLEAS
v. : OF FENDICK COUNTY
:
Esther Energy Industries, Defendant : CIVIL ACTION – LAW
: NO. 631995 of 2016
AFFIDAVIT OF EMILY JAEGER
I, Emily Jaeger, as Corporate Secretary for Defendant, Esther Energy Industries (EEI), do
hereby swear and affirm, subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn
falsification to authorities, that:
1. EEI is a company incorporated in Delaware, and which is engaged primarily in the storage
and distribution of natural gas.
2. EEI makes in excess of $1 billion per year from its gas operations.
3. In 2012, EEI purchased a building in Fendick County, Pennsylvania, with the intent to use it
as its corporate headquarters and principal place of business. Before it could ever occupy the
building, or move anything or anyone into the building, EEI was purchased by another
company in Oklahoma, and moved its headquarters there.
4. Since mid-2012, EEI has and continues to advertise on its website for sale the building in
which its headquarters was to be located in Pennsylvania, but no buyers have emerged.
5. Although the property remains for sale, in January 2015, EEI rented the entire building to a
frozen yogurt manufacturer for $14,000 per year to offset some of its costs.
6. Ownership of the building is the only connection EEI has with Pennsylvania.
7. EEI does not regularly conduct business in Pennsylvania.
8. EEI was never registered to do business in Pennsylvania; and EEI was never qualified as a
foreign corporation under the laws of the Commonwealth of Pennsylvania.
9. EEI does not, and has never, stored documents in Pennsylvania.
10. EEI does not, and has never, employed anyone in Pennsylvania.
11. EEI does not, and has never, purchased products in or from Pennsylvania.
12. EEI does not utilize the services of a financial institution in Pennsylvania; instead, all rent
checks derived from its owned property are mailed to Oklahoma for deposit.
13. After she was terminated, Margaret Anderson moved to Pennsylvania.
Emily Jaeger Emily Jaeger
Corporate Secretary
Esther Energy Industries
61
LIBRARY
62
42 Pa.C.S. § 5322 Bases of personal jurisdiction over persons outside this Commonwealth
(a) General rule.--A tribunal of this Commonwealth may exercise personal jurisdiction over a
person . . . who acts directly or by an agent, as to a cause of action or other matter arising from
such person:
(1) Transacting any business in this Commonwealth. Without excluding other acts
which may constitute transacting business in this Commonwealth, any of the following shall
constitute transacting business for the purpose of this paragraph:
(i) The doing by any person in this Commonwealth of a series of similar acts for the
purpose of thereby realizing pecuniary benefit or otherwise accomplishing an object.
(ii) The doing of a single act in this Commonwealth for the purpose of thereby
realizing pecuniary benefit or otherwise accomplishing an object with the intention of
initiating a series of such acts.
(iii) The shipping of merchandise directly or indirectly into or through this
Commonwealth.
(iv) The engaging in any business or profession within this Commonwealth, whether
or not such business requires license or approval by any government unit of this
Commonwealth.
(v) The ownership, use or possession of any real property situate within this
Commonwealth.
(2) Contracting to supply services or things in this Commonwealth.
(3) Causing harm or tortious injury by an act or omission in this Commonwealth.
(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside
this Commonwealth.
(5) Having an interest in, using, or possessing real property in this Commonwealth.
* * *
(b) Exercise of full constitutional power over nonresidents. In addition to the provisions of
subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons
. . . to the fullest extent allowed under the Constitution of the United States and may be based on
the most minimum contact with this Commonwealth allowed under the Constitution of the
United States.
(c) Scope of jurisdiction.--When jurisdiction over a person is based solely upon this section,
only a cause of action or other matter arising from acts enumerated in subsection (a) or from acts
forming the basis of jurisdiction under subsection (b), may be asserted against him.
* * *
63
April Mendel, Appellant
v.
Eric Williams, M.D., et al.
* * *
I. Factual History
April Mendel appeals from the March
17, 2011 and March 21, 2011 orders of the
Court of Common Pleas of Philadelphia County,
sustaining the preliminary objections filed by
Underwood Memorial Hospital (“Underwood”)
and Doctor Robert Ocasio, M.D. asserting lack
of personal jurisdiction in Pennsylvania. . . . On
July 31, 2008, Eric Williams, M.D. and Andrew
Beaver, M.D. performed L3-S1 laminectomy
surgery on Mendel's spine at the Albert Einstein
Medical Center ("Einstein") in Philadelphia,
Pennsylvania. Doctor Williams and Doctor
Beaver are licensed to practice medicine in
Pennsylvania; both maintain a medical office
and regular place of business at Einstein.
Mendel left Einstein on August 4, 2008,
and returned to her home in Turnersville, New
Jersey. The following week, on August 11,
2008, Mendel experienced drainage from her
surgical wound and contracted a fever. Mendel
contacted a member of Doctor William's staff
who suggested that she go to an emergency
room. Mendel went to Underwood in
Woodbury, New Jersey later that day.
Underwood emergency room physicians
confirmed that Mendel had a wound infection in
the laminectomy incision with purulent
drainage. The emergency room physicians
contacted Doctor Williams, who agreed to
accept Mendel at Einstein, but stated that there
would not be an available bed until the
following day. In the interim, Mendel was
admitted to the internal medicine service of
Doctor Ocasio at Underwood.
During the course of the night, Mendel
complained of worsening pain in her legs.
Doctor Ocasio and other Underwood physicians
approved increasingly strong pain medication,
but failed to diagnose and treat the epidural
abscess that was compressing Mendel's spine.
Mendel further alleges that Doctor Ocasio did
not make any mention of Mendel's pain in her
discharge summary, describing her condition as
"stable," and that he certified her transfer to
Einstein without warning Doctor Williams of
her worsening condition.
Mendel was transported by ambulance to
Einstein the following morning, on August 12,
2008. Doctor Williams performed additional
surgery later that day at Einstein to correct the
infected wound. The surgery revealed that the
abscess extended to the spinal cord and that
Mendel suffered paralysis below the waist.
Doctors subsequently discharged Mendel to a
rehabilitation center on August 29, 2008.
Despite rehabilitation efforts, Mendel has not
regained movement or feeling below the waist.
64
II. Procedural History
Mendel initiated the instant action by
writ of summons in the Court of Common Pleas
of Philadelphia County . . . against Underwood,
Doctor Ocasio, Einstein and the treating
physicians at Einstein.
* * *
Mendel filed a complaint on August 6,
2010. Doctor Ocasio filed preliminary
objections to the complaint on August 13, 2010,
alleging lack of personal jurisdiction.
. . . On March 17, 2011, the trial court entered
an order dismissing Mendel's action against
Doctor Ocasio for lack of personal jurisdiction
in Pennsylvania.
Underwood filed preliminary objections
to Mendel's complaint on September 14, 2011,
also alleging Pennsylvania lacked personal
jurisdiction.
. . . On March 21, 2011, the trial court entered
its order dismissing the action against
Underwood for lack of personal jurisdiction.
Mendel filed a timely appeal.
* * *
III. Analysis
A. Personal Jurisdiction
Mendel avers that the trial court erred in
granting Doctor Ocasio and Underwood's
preliminary objections as to personal
jurisdiction in Pennsylvania.
[The] standard of review [for]
granting preliminary objections
challenging personal jurisdiction
is as follows: [W]hen deciding a
motion to dismiss for lack of
personal jurisdiction the court
must consider the evidence in the
light most favorable to the non-
moving party. . . . Once the
moving party supports its
objections to personal
jurisdiction, the burden of
proving personal jurisdiction is
upon the party asserting it.
Courts must resolve the question
of personal jurisdiction based on
the circumstances of each
particular case.
Schiavone v. Aveta, 41 A.3d 861, 865 (Pa.Super.
2012) (citation omitted).
* * *
The Due Process Clause of the
Fourteenth Amendment to the United States
Constitution limits the authority of a state to
exercise in personam jurisdiction over non-
resident defendants. Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct.
2174, 85 L.Ed.2d 528 (1985). The extent to
which jurisdiction is proscribed by the Due
Process Clause is dependent upon the nature and
quality of the defendant's contacts with the
forum state. See id. at 474-76 . . . ; Kubik v.
Letteri, 532 Pa. 10 . . . (1992). Where a
defendant "has established no meaningful
contacts, ties or relations" with the forum, the
Due Process Clause prohibits the exercise of
personal jurisdiction. Burger King, supra at
472. However, where a defendant has
65
"purposefully directed" his activities at the
residents of the forum, he is presumed to have
"fair warning" that he may be called to suit
there. Id.
A defendant's activities in the forum
State may give rise to either specific jurisdiction
or general jurisdiction. See Kubik, supra at
1113. "Specific jurisdiction
. . . depends on an 'affiliatio[n] between the
forum and the underlying controversy,'
principally, activity or an occurrence that takes
place in the forum State and is therefore subject
to the State's regulation." Goodyear Dunlop
Tires Operations, S.A. v. Brown, ___U.S. ___,
131 S.Ct. 2846 . . . (2011). Because due
process may permit specific jurisdiction based
solely on "single or occasional" acts
purposefully directed at the forum, it is narrow
in scope, limiting a cause of action to the extent
that it "arises out of or relates to" the very
activity that establishes jurisdiction. See id. at
2851.
* * *
2. Specific Jurisdiction over Underwood and
Doctor Ocasio
A foreign defendant who does not have
sufficient contacts with Pennsylvania to
establish general jurisdiction may nevertheless
be subject to specific jurisdiction in
Pennsylvania pursuant to the Pennsylvania
Long-Arm Statute, 42 Pa.C.S.A. § 5322 (Bases
of personal jurisdiction over persons outside this
Commonwealth). Section 5322(a) contains ten
paragraphs that specify particular types of
contact with Pennsylvania deemed sufficient to
warrant the exercise of specific jurisdiction.
Scoggins v. Scoggins, 382 Pa.Super. 507 . . .
(1989); 42 Pa.C.S.A. § 5322(a). . . . [I]f a
defendant's activities in Pennsylvania only give
rise to jurisdiction under section 5322(a) or (b),
the plaintiff's cause of action is limited to those
activities which formed the basis of jurisdiction.
See 42 Pa.C.S.A. § 5322(c).
Once it is determined that jurisdiction is
authorized by the Long-Arm Statute, the party
seeking relief must demonstrate that the exercise
of jurisdiction conforms with the Due Process
Clause. . . . (two requirements necessary for
specific jurisdiction in Pennsylvania: (1)
jurisdiction must be authorized by state Long-
Arm Statute; and (2) jurisdiction must comport
with constitutional principles of due process).
Whether specific jurisdiction is proper under the
Due Process Clause requires a two-part analysis:
first, the plaintiff must demonstrate that the
defendant purposefully established minimum
contacts with the forum state; and second, the
maintenance of the suit must not offend
"traditional notions of fair play and substantial
justice." See Schiavone, supra at 869. . . .
A defendant purposefully establishes
minimum contacts with the forum state when its
66
contacts are: such that the defendant could
reasonably anticipate being called to defend
itself in the forum. . . .Random, fortuitous, and
attenuated contacts cannot reasonably notify a
party that it may be called to defend itself in a
foreign forum and, thus, cannot support the
exercise of personal jurisdiction. That is, the
defendant must have purposefully directed its
activities to the forum and conducted itself in a
manner indicating that it has availed itself of the
forum's privileges and benefits such that it
should be subjected to the forum state's laws
and regulations. Aventis Pasteur, Inc. v. Alden
Surgical Co., Inc., 848 A.2d 996, 1000 (Pa.
Super. 2004).
If the defendant has purposefully
established minimum contacts in the forum
State, these contacts must be considered on a
case-by-case basis to determine whether they
"are such as to make it reasonable and fair to
require him to conduct his defense in the state."
Kubik, supra at 1114 . . . .
Factors to be considered include
(1) the burden on the defendant,
(2) the forum state's interest in
adjudicating the dispute, (3) the
plaintiff's interest in obtaining
convenient and effective relief,
(4) the interstate judicial system's
interest in obtaining the most
efficient resolution of
controversies and (5) the shared
interest of the several states in
furthering fundamental
substantive social policies.
Kubik, supra at 1114.
a. Pennsylvania Long-Arm Statute
Mendel asserts that specific jurisdiction
over Underwood and Doctor Ocasio is proper in
Pennsylvania under section 5322(a)(4) of the
Long-Arm Statute. That section provides:
(a) General rule. A tribunal of
this Commonwealth may
exercise personal jurisdiction
over a person . . . who acts
directly or by an agent, as to a
cause of action or other matter
arising from such person:
* * *
(4) Causing harm or tortious
injury in this Commonwealth by
an act or omission outside this
Commonwealth.
42 Pa.C.S.A. § 5322(a)(4).
Mendel claims that Underwood and
Doctor Ocasio meet the statutory requirements
of section 5322(a)(4) because their failure to
diagnose and treat her spinal cord injury in New
Jersey, or to send Einstein a report of her
medical condition after she had been transferred
to Pennsylvania caused her paralysis in
Pennsylvania. Mendel's attempt to frame her
paralysis as a harm or injury caused in
Pennsylvania is facially appealing, but
ultimately unpersuasive.
In . . . Kurtz v. Draur [434 F. Supp. 958
(E.D. Pa. 1977)], the Courts for Pennsylvania
did consider a similar question in applying the
predecessor to the current Long-Arm Statute[,
67
42 Pa.C.S. § 8305]. Thus, we will look to [this
case] for guidance.
* * *
In Kurtz, a patient sought treatment at a
Nebraska hospital for a heart condition. The
complaint alleged that the treating physician
failed to properly diagnose the condition or to
provide adequate follow-up care. The patient
later moved to Pennsylvania where he suffered
"residual harm" from the alleged negligent
treatment. [T]he Eastern District Court
reasoned that section 8305 "was not designed to
take cognizance of the residual effects of out-of-
state injuries" resulting from medical treatment,
and that "[t]he ‘harm' which [the treating
physician was] alleged to have caused, occurred
in Nebraska." Id. at 961-62.
We agree with the reasoning of the
Court[] in . . . Kurtz, and conclude that in the
instant action, the alleged negligence of
Underwood and Doctor Ocasio did not "[cause]
harm or tortious injury in this Commonwealth"
as contemplated by section 5322(a)(4). See . . .
Kurtz, supra. The mere fact that Mendel's
paralysis was discovered in Pennsylvania, or
that it manifested in Pennsylvania, does not
necessarily mean that it was caused in
Pennsylvania.
Accepting Mendel's factual averments as
true, Underwood and Doctor Ocasio contributed
to Mendel's paralysis by delaying treatment of
her spinal abscess - either through their failure
to treat her injury themselves, or by failing to
notify doctors at Einstein of her status. This
delay began when Mendel was a patient at
Underwood's New Jersey facility. Thus, it
follows that any harm resulting from the delay
was also caused in New Jersey. That the harm
may have continued in Pennsylvania and was
ultimately discovered in Pennsylvania does not
alter the fact that it originated in New Jersey.
* * *
Therefore, we conclude that section
5322(a)(4) of the Long-Arm Statute does not
provide a basis for specific personal jurisdiction
over Underwood or Doctor Ocasio.
b. Due Process
Even if section 5322(a) did encompass
the activities of Underwood and Doctor Ocasio,
specific jurisdiction in Pennsylvania would
nevertheless be prohibited because Underwood
and Doctor Ocasio do not have sufficient
minimum contacts with Pennsylvania to satisfy
the requirements of Due Process. See Derman
v. Wilair Servs., Inc., [404 Pa. Super 136
(1991)] . . . .
Courts have generally been reluctant to
extend specific personal jurisdiction to out-of-
state medical providers for causing injury to
Pennsylvania patients, even though the effects
of the doctors' negligence may be felt in
68
Pennsylvania. See, e.g., Lebkuecher v.
Loquasto, 255 Pa. Super. 608 . . . (1978).
* * *
In Prince [v. Urban, 49 Cal. App. 4th
1056, 47 Cal. Rptr. 2d 181 (1996)], the
California Fourth District Court of Appeal
considered the limits of personal jurisdiction
over an out-of-state doctor who causes injury to
an in-state patient. There, a California patient
was referred to an Illinois headache specialist
who treated the patient in Illinois for migraines
and prescribed her various medications. After
returning to California, the patient maintained
telephone contact with the specialist and the
specialist continued to prescribe and mail
additional medication to the patient. The patient
subsequently had an adverse reaction to the
medications in California and filed a
malpractice suit against the specialist there.
The Court of Appeal acknowledged that
"the case [was] a close one" for personal
jurisdiction, but concluded that "the balance
[was] tipped in the direction of no jurisdiction"
because of the personal nature of the services
rendered. Id. at 1059. . . . The court held,
"where . . . the out-of-state doctor's contact with
the forum state consists of nothing more than
telephonic follow-up [care] on services rendered
in the doctor's own state, it is unreasonable for
the patient's home state to exercise personal
jurisdiction over the physician." Id. at 1059. . . .
In support, the court noted three factors
in particular which tended to negate jurisdiction.
First, the specialist did not engage in any
"systematic or continuing effort" to provide
services in California. Although the specialist
did offer "follow-up care" to the patient in
California, and the patient suffered injury in
California, the court concluded that the injury
could not be said to have been caused in
California as the treatment was merely a
continuation of one set of services which
originated in Illinois. See id. at 1066. . . .
Second, "the services rendered by [the
specialist] were not 'grounded' in any
relationship with California" because the patient
sought the specialist on her own through a
referral. Id. at 1064 . . . . Finally, recognizing
the policy considerations the court concluded
that limiting jurisdiction would further the
interests of California by encouraging out-of-
state doctors to provide appropriate medical
treatment to California residents, especially
"where specialized medical treatment is needed
and California citizens must travel out of state to
find it." See id. at 1064.
* * *
The facts of the instant case do not
present any of the special characteristics of a
doctor-patient relationship that would justify
extending jurisdiction in Pennsylvania to
Underwood or Doctor Ocasio. . . . Underwood
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and Doctor Ocasio did not promote their
practice through national marketing, did not
solicit Mendel as a patient and did not
purposefully treat patients in Pennsylvania. . . .
Additionally, . . . Underwood and Doctor
Ocasio did not maintain any contact with
Mendel after she had returned to Pennsylvania
such that they could be said to have committed a
negligent act here or purposefully directed their
activities here. To the contrary, Mendel's
complaint centers on Underwood and Doctor
Ocasio's failure to act after she returned to
Pennsylvania.
* * *
In fact, it is hard to identify any
purposeful contact that Underwood or Doctor
Ocasio had with Pennsylvania regarding the
treatment of patients. While Mendel lists
numerous activities by Underwood and Doctor
Ocasio in Pennsylvania, including affiliations
with medical organizations in Pennsylvania,
associations with Jefferson and personal travel
to Philadelphia, none of these activities relate to
the injury that Mendel suffered. Accordingly,
they cannot be used as a basis for specific
jurisdiction in the instant action. See 42
Pa.C.S.A. § 5322(c).
* * *
Because Underwood and Doctor Ocasio
could not have reasonably anticipated being
called to court in Pennsylvania based on their
treatment of Mendel in New Jersey, they cannot
be said to have purposefully established
minimum contacts with Pennsylvania. See
Burger King, supra, Aventis Pasteur, supra.
Accordingly, the trial court did not err in
determining that it lacked specific jurisdiction
over Underwood and Doctor Ocasio.
* * *
Mendel has failed to establish that the
exercise of personal jurisdiction over the out-of-
state medical providers in the instant action
would comport with constitutional principles of
due process. . . . [N]either Underwood nor
Doctor Ocasio has purposefully established
minimum contacts in this Commonwealth such
that Pennsylvania may exercise specific
jurisdiction regarding their alleged negligent
treatment of Mendel. See Aventis Pasteur,
supra. Accordingly, the trial court did not err in
sustaining Underwood and Doctor Ocasio's
preliminary objections.
* * *
70
Instructions
The performance test is designed to test an applicant’s ability to perform the
legal task that has been assigned using the factual information contained in the
File and legal principles that are provided in the Library.
The File contains the only factual information that you should consider in
performing the assigned task. The task to be completed is set forth in the first
document in the File in the form of a memorandum to the applicant. The
Library contains the only legal principles that you should consider to complete
the assigned task. Although your general knowledge of the law may provide
some background for analyzing the problem, the factual information contained
in the File and the legal principles contained in the Library are the only
materials that you should use in formulating your answer to the assigned task.
Your response should be written in the gray answer book or typed in answer
screen number 3 of SofTest. Be sure to allow sufficient time for reading the
materials, organizing your answer and completing the task assigned. Your
answer should demonstrate an understanding of the relevant facts, recognition
of the issues and the applicable principles of law and the reasoning that
supports your answer. Your grade will be based on the content of your
response and your ability to follow instructions in performing the assigned
task.
The events depicted and the persons portrayed by the information in the File
are fictitious and such information does not depict, nor is it intended to depict,
or portray any actual person, company, or occurrence. Any similarity to any
person, living or dead, or any occurrence is purely coincidental.
71
Question No. PT: Examiner’s Analysis and Grading Guidelines
The applicant is assigned to draft a persuasive legal memorandum to the managing partner to be
used as a basis for a brief in support of preliminary objection due to lack of specific personal
jurisdiction.
The applicant must identify the relevant facts from the Complaint and an Affidavit from the
client’s corporate secretary. The applicant must apply a statute and excerpts from one case to the facts
in order to properly analyze whether specific jurisdiction exists, including any due process arguments.
Format 1 point
Following directions, including formatting directions, is an important skill of every lawyer. The
applicant is expected to follow the directions provided concerning the format of the memorandum (i.e. –
craft their document in the form of a memorandum directed to the managing partner).
The applicant is also expected to provide some form of citation to the complaint, affidavit,
statute, and/or case to sufficiently identify the authority upon which the applicant is relying for each
legal and factual point. Formal Bluebook citations are not required.
The cause of action did not arise from EEI transacting business in Pennsylvania. 8 points
“When deciding a motion to dismiss for lack of personal jurisdiction the court must consider the
evidence in the light most favorable to the non-moving party.” Mendel v. Williams
“Once the moving party supports its objections to personal jurisdiction, the burden of proving
personal jurisdiction is upon the party asserting it.” Mendel v. Williams
A defendant’s activities in the forum state may give rise to either specific jurisdiction or general
jurisdiction. Mendel v. Williams
“A foreign defendant … may … be subject to specific jurisdiction in Pennsylvania pursuant to
the Pennsylvania Long-Arm Statute, 42 Pa.C.S. §5322.” Mendel v. Williams
Specific Jurisdiction depends on an affiliation between the forum and the underlying
controversy, principally, activity or an occurrence that takes place in the forum state and is therefore
subject to the state’s regulation. Mendel v. Williams.
The Pennsylvania Long Arm Statute sets forth ten particular types of contact with Pennsylvania
that are deemed sufficient to warrant the exercise of specific jurisdiction. The only such conduct
applicable to EEI is the ownership, use or possession of any real property situate within this
Commonwealth (42 Pa.C.S. §5322(a)(1)(v)), or if the foreign defendant has an interest in, uses, or
possesses real property in this Commonwealth (42 Pa.C.S. §5322(a)(5)). None of the other transactions
apply.
Pennsylvania’s Long-Arm Statute deems personal jurisdiction to exist if, inter alia, a foreign
defendant has transacted business within the Commonwealth, including the ownership, use or possession
of any real property situate within this Commonwealth (42 Pa.C.S. §5322(a)(1)(v)), or if the foreign
72
defendant has an interest in, uses, or possesses real property in this Commonwealth (42 Pa.C.S.
§5322(a)(5)).
EEI owns real estate, and possesses real property in the Commonwealth. Complaint; Jaeger
Affidavit.
EEI’s ownership of real estate in the Commonwealth may lead to specific jurisdiction over EEI
in Pennsylvania. 42 Pa.C.S. §5322(a)(1)(v) and (a)(5).
When jurisdiction over a person is based upon section 5322, only a cause of action or other
matter arising from acts enumerated in subsection (a) or from acts forming the basis of jurisdiction under
subsection (b) may be asserted against him. 42 Pa.C.S. §5322(c); Mendel
The cause of action against EEI is the result of alleged wrongful discharge of an employee of
EEI for conduct that occurred in Oklahoma and did not arise out of EEI’s ownership of property in
Pennsylvania. Complaint. While the discharged employee’s primary duties included overseeing the
real estate in Pennsylvania, and collecting rent checks derived from the property located in
Pennsylvania, these activities occurred in Oklahoma and the cause of action did not relate to these
activities. Complaint.
While the discharged employee did travel to Pennsylvania on two occasions to deal with matters
relating to the property, i.e., signing the lease and inspecting the property for storm damage, she was
employed and discharged in Oklahoma. Thus, by her own admission, the cause of action did not arise
from EEI’s activities in Pennsylvania.
Because the cause of action is not sufficiently related to the activity that establishes jurisdiction,
specific jurisdiction does not exists in Pennsylvania under 42 Pa.C.S §5322(a).
Due Process 11 Points
There were not sufficient minimum contacts in Pennsylvania sufficient to satisfy due process.
Even if “it is determined that jurisdiction is authorized by the Long-Arm Statute, the party
seeking relief must demonstrate that the exercise of jurisdiction conforms with the Due Process Clause.
Mendel v. Williams
“Because due process may permit specific jurisdiction based solely on ‘single or occasional’ acts
purposefully directed at the forum, it is narrow in scope, limiting a cause of action to the extent that it
‘arises out of or relates to’ the very activity that establishes jurisdiction.” Mendel v. Williams
“Whether specific jurisdiction is proper under the Due Process Clause requires a two-part
analysis: first, the plaintiff must demonstrate that the defendant purposefully established minimum
contacts with the forum state; and second, the maintenance of the suit must not offend ‘traditional
notions of fair play and substantial justice.’” Mendel v. Williams
73
“A defendant purposefully establishes minimum contacts with the forum state when its contacts
are: such that the defendant could reasonably anticipate being called to defend itself in the forum. . . .
Random, fortuitous, and attenuated contacts cannot reasonably notify a party that it may be called to
defend itself in a foreign forum, and, thus, cannot support the exercise of personal jurisdiction.” Mendel
v. Williams
A defendant must have purposefully directed its activities to the forum and conducted itself in a
manner indicating that it has availed itself of the forum’s privileges and benefits such that it should be
subjected to the states laws and regulations. Mendel v. Williams
Although EEI purposefully purchased the property in Pennsylvania to house its corporate
headquarters, it never occupied the building, or moved anything into the building; it tried to sell the
building, but was unable to find a buyer; the building presently has no relation to EEI’s general gas
business; and the income from the frozen yogurt company’s rental of the property totaling $14,000.00
annually is incidental to the $1 billion gas business carried on by EEI. Affidavit. Additionally, while
the discharged employee visited the property on two occasions, by her own admission in the Complaint,
there is no connection between those visits and her discharge. All these activities, even if they are found
to constitute minimum contacts, are not related to the cause of action and cannot be used as a basis for
specific jurisdiction. 42 Pa.C.S. § 5322(c).
EEI’s contacts do not make it reasonable and fair to require EEI to conduct a defense in
Pennsylvania.
Even if the defendant has purposefully established minimum contacts in the forum state, the
contacts must be considered on a case-by-case basis to determine whether they are such as to make it
reasonable and fair to require the defendant to conduct its defense in that state. Mendel v. Williams
Factors to consider when determining if it is reasonable and fair to require a defendant to conduct
its defense in a state include:
(1) the burden on the defendant;
(2) the forum state’s interest in adjudicating the dispute;
(3) the plaintiff’s interest in obtaining convenient and effective relief;
(4) the interstate judicial system’s interest in obtaining the most efficient resolution of
controversies; and
(5) the shared interest of the several states in furthering fundamental substantive social policies.
Mendel v. Williams
The burden on EEI to defend itself in Pennsylvania would be high, as the purported actions of
EEI occurred in Oklahoma; the plaintiff was employed by EEI in Oklahoma; the manager who fired the
plaintiff is in Oklahoma; and the corporate records of EEI would be maintained in Oklahoma.
Pennsylvania likely has little interest in adjudicating a claim of wrongful discharge wherein the
employee resided in Oklahoma at the time of the alleged incident; the employer at the time of the
alleged incident was, and remains, in Oklahoma; and the alleged conduct occurred in Oklahoma.
74
Plaintiff will not be able to obtain convenient and effective relief in Pennsylvania because the
people she will want to depose and call at trial are out of state; and any relief (judgment) she may obtain
against EEI will require extra steps to enforce in Oklahoma.
The interstate judicial system’s interest in obtaining the most efficient resolution of this
controversy would be to adjudicate the matter in Oklahoma. Oklahoma is where the purported conduct
occurred; it is where the employee resided at the time of the purported conduct; it is where the defendant
and the majority of witnesses are located; it is where the policy relating to jury duty was allegedly
violated; and it is where the defendant’s corporate records are maintained.
While every state has an interest in protecting its citizens from wrongful discharge, an action
based thereon should be maintained in the state in which the parties resided at the time of the alleged
bad acts; where the defendant employer and its employees are located; and where the alleged incident
took place.
Based on a Due Process analysis of the facts presented, a finding of specific jurisdiction in this
matter would violate the Due Process Clause and, therefore, no specific personal jurisdiction exists over
EEI.
75