PA Essay

Question 1

BJR + Minority SH suit

Answer 1

Pennsylvania law allows a board of directors to move to dismiss a derivative action filed by a minority group of shareholders if the directors are independent, not interested in the subject of the business judgment, and act on an informed basis, in good faith and with the honest belief that their action is in the best interests of the corporation, i.e., in accordance with the business judgment rule.

Question 2

BJR

Answer 2

The business judgment rule insulates an officer or director of a corporation from liability for a business decision made in good faith if he is not interested in the subject of the business judgment, is informed with respect to the subject of the business judgment to the extent he reasonably believes to be appropriate under the circumstances, and rationally believes that the business judgment is in the best interests of the corporation

Question 3

Pennsylvania’s basis for business law?

Answer 3

the Pennsylvania Business Corporation Law of 1988

Question 4

Record keeping

When may a SH request record?

Answer 4

Section 1508 of the Pennsylvania Business Corporation Law of 1988 (the “BCL”) requires Pe
nnsylvania business corporations to keep complete and accurate books and records of account, minutes of the proceedings of the incorporators, shareholders and directors and a share register giving the names and addresses of all shareholders and the shares owned by each.

When related to her interest as a SH

Question 5

the name of PA UCC?

Answer 5

Article II of the Pennsylvania Uniform Commercial Code on Sales

Question 6

Implied warranty

Answer 6

The implied warranty of merchantability arises when a merchant sells a good that was not “merchantable”, thus causing damages to the buyer.

Question 7

Implied warranty of fintessfor particular purpose

Answer 7

The implied warranty of fitness for particular purpose arises if the seller knew of the buyer’s particular purpose for buying the good, knew that the buyer was relying upon the seller’s expertise in selecting an appropriate good to meet the buyer’s needs,

Question 8

Requirements for excluding warranty

Answer 8

The language must be in writing & conspicuous

Question 9

Relevant estate statute of PA

Answer 9

the Pennsylvania Probate Estates and Fiduciaries Code

Question 10

Existence of a contract concerning succession under the Probate, Estates, and Fiduciaries Code.

Answer 10

(a) Establishment of contract. –
A contract to die intestate or to make or not to revoke a will or testamentary provision or an obligation dischargeable only at or after death can be established in support of a claim against the estate of a decedent only by:
(1) provisions of a will of the decedent stating material provisions of the contract;
(2) an express reference in a will of the decedent to a contract and extrinsic evidence proving the terms of the contract; or
(3) a writing signed by the decedent evidencing the contract.

Question 11

Power of appointment

Answer 11

A power of appointment is defined as follows:
[A] power created or reserved by a person (the donor) having property subject to his disposition enabling the donee of the power to designate, within such limits as the donor may prescribe, the transferees of the property or the shares in which it shall be received.

Question 12

Power of appointment - what kind?

Answer 12

A power of appointment may be general or special; with a general power authorizing the donee to distribute to anyone.

A special power restricts distributions in some way and may limit distribution to a class of individuals designated by the donor.

Question 13

Special power of appointment

Answer 13

A special power restricts distributions in some way and may limit distribution to a class of individuals designated by the donor.

special power of appointment may be either “exclusive,” which allows the donee to choose among the class members, or “non-exclusive,” under which the power must be exercised in favor of all the class members.

Question 14

Taxability of life insurance proceeds

Answer 14

The general rule for the inclusion of life insurance proceeds in gross income is that such proceeds are not gross income if such amounts are paid by reason of the death of the insured.
In the case of a transfer for a valuable consideration, by assignment or otherwise, of a life insurance contract or any interest therein, the amount excluded from gross income by paragraph (1) shall not exceed an amount equal to the sum of the actual value of such consideration and the premiums and other amounts subsequently paid by the transferee.
the amount of the proceeds attributable to such policy or interest which is excludable from the transferee’s gross income is generally limited to the sum of (i) the actual value of the consideration for such transfer, and (ii) the premiums and other amounts subsequently paid by the transferee

Question 15

When lawyer’s disclosure of the client info permitted

Answer 15

Rule 1.6 of the Pennsylvania Rules of Professional Conduct provides, in relevant part, the following:
(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

Question 16

Trust law PA

Answer 16

Uniform Trust Act

Question 17

Elements of a valid trust

Answer 17

Beneficiary
Trustee
Trust proeprty
purpose
intent

Question 18

Trust + intent requirement in PA

Answer 18

Writing

Question 19

Trust + Precatory language in PA

Answer 19

No creation of trust (wish/hope)

Question 20

Pour over trust

Answer 20

Pour over provision in a will directs the distribution of the testator’s property to a trust

Question 21

Cy Pres Doctrine

Answer 21

The cy-près doctrine is a legal doctrine which allows a court to amend a legal document to enforce it “as near as possible” to the original intent of the instrument, in situations where it becomes impossible, impracticable, or illegal to enforce it under its original terms.

Question 22

4 types of asset protection trusts

Answer 22

Pour over trusts
Support trusts
Discretionary Trusts
Spendthrift trusts

Question 23

The purpose of spendthrift trust in PA

Answer 23

PA presumes a spendthrift clause is an unfulfilled material purpose of the trust, as it reflect’s settlor’s intent

Question 24

PA revocation of trust by will

Answer 24

PA prohibits a trust from being prematurely revoked by will

Question 25

PA trustee power

Answer 25

All powers reasonably necessary to administer the trust

Question 26

PA trustee duty of loyalty exception

Answer 26

Can advance his own personal funds to the trust

Question 27

PA trustee duty rule regarding investment decision

Answer 27

Prudent Investor Rule

Question 28

Child support PA

Answer 28

Generally, the duty to support a child ceases when the child reaches 18 or when the child graduates from high school, whichever comes later. Pennsylvania courts have recognized a duty on parents to support a child who has a physical or mental condition, which exists at the time a child reaches majority, that prevents the child from being self-supporting.

Question 29

Search of the property. co-owner right

Answer 29

Search warrant generally required. · Consent exception to warrant requirement. · Consent by one in authority over property. · Physically present co-owner may object.

Question 30

Factors re: child support

Answer 30

In determining whether a child is emancipated, the Court will look at a number of factors including the child’s age, marital status, ability to support himself and live independently of a parent.

Question 31

Lay witness testimony

Answer 31

Lay testimony permitted if based on witness’s perception, helps the finder of fact and is not based upon scientific or specialized knowledge.

Question 32

Partial/Complete integration inquiry standard

Answer 32

This is answered by comparing the earlier terms and determining whether parties, situated as the parties to this contract, would naturally and normally include the term in the final contract

Question 33

Duty of a life tenant

Answer 33

It is the duty of a life tenant to keep the property subject to the life estate in repair so as to preserve the property and prevent decay or waste. The general rule is that while a life tenant is responsible for repairs and maintenance, she is not responsible for improvements. The rationale behind the rule is that a life tenant should not be allowed to improve a remainderman out of his estate.

Question 34

Tenant right re: fixture

Answer 34

The right to possession of chattels that are attached to leased real estate is determined by the application of the law of fixtures. Clayton v. Lienhard, 312 Pa. 433, 167 A. 321, 322 (1933). A fixture is an article in the nature of personal property “which has been so annexed to the realty that it is regarded as part and parcel of the land.” Lehmann v. Keller, 454 Pa. Super. 42, 684 A.2d 618, 621 (1996). As a general rule, items classified as fixtures may not be removed by a tenant during or at the termination of the lease. There is an exception to the general rule regarding the removability of fixtures for those items that are classified as trade fixtures. The well-settled rule is that where a tenant attaches to real estate fixtures and equipment necessary for the operation of its business, such items become trade fixtures and a presumption arises that the tenant is entitled to remove them during or at the termination of the lease.

Question 35

PA intestacy calculation. Which method?

Answer 35

Per capita with representation

Question 36

PA will requirement

Answer 36

1. Sign ( no real name required) 2. No witness required (See interested witness rule) 3. testator must understand he is executing a will + must intend to dipose the proper

Question 37

If the will is executed by a 3P on behalf of a testator, or if the signature is merely the testator's ----, then ---- witnesses are required.

Answer 37

Mark, two

Question 38

Interested witness

Answer 38

Unless witnesses are required, all witnesses are deemed disinterested

Question 39

Writing after the will.

Answer 39

Words added after the signature of a testator are ineffective as any sort of codicil or amendment. The fact that there is writing after the signature does not invalidate the preceding language of the will.

Question 40

PA stepchild

Answer 40

Pennsylvania law has long provided that a stepchild does not take under a will which provides for “children” when there are actually other natural or adopted children of the testator.

Question 41

Simultaneous Death Act

Answer 41

Under the Simultaneous Death Act, since the facts do not indicate that Roger’s will made any contrary provision for the simultaneous death of himself and one of his children, the property of Roger will be disposed of as if he had survived Theodore.

Question 42

The Pennsylvania anti-lapse provision

Answer 42

A devise or bequest to a child or other issue of the testator . . . shall not lapse if the beneficiary shall fail to survive the testator and shall leave issue surviving the testator but shall pass to such surviving issue who shall take per stirpes the share which their deceased ancestor would have taken had he survived the testator.

Question 43

per stirpes

Answer 43

by the roots - issue take in equal portions the share of their ancestors would hav etaken

Question 44

Lawyer Duty of competent representation

Answer 44

ennsylvania Rule of Professional Conduct “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Question 45

Taxability of casualty loss

Answer 45

Under section 1033 (a) of the Internal Revenue Code, 26 U.S.C.A. §1033, a casualty insurance payment for the total loss of property caused by destruction, theft, seizure or condemnation, referred to as an “involuntary conversion,” must, unless excluded 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. Deductibility permitted to the degree exceeding 100 and 10% of the AGI

Question 46

Gain from sale of principal residence

Answer 46

1. up to 250K gain | 2. which has been so used for at least two of the five years preceding the sale or other disposition

Question 47

non recognition regarding rebuilding/replacement

Answer 47

The non-recognition of such a gain is provided for in IRC section 1033. Don has the option to minimize or avoid the recognition of this gain to the extent he uses the proceeds to rebuild or replace the home with property “similar or related in service or use” to the former property. See IRC §1033 (a)(2)(A). This requires that an “election” be made by the taxpayer or the personal representative of the taxpayer to rebuild or replace the lost property within two years after the end of the tax year in which the gain from the involuntary conversion is realized.

Question 48

Kidnap

Answer 48

Unlawful moving unlawful confinement to terrorize ransom facilitate commission

Question 49

PA withdrawal

Answer 49

May withdraw where thwarts complete and voluntary

Question 50

PA abandoment

Answer 50

(abandoning the attempt) voluntary affirmative step

Question 51

PA attempt

Answer 51

substantial step

Question 52

PA crimes involving dishonesty

Answer 52

Bribery, Burgary, Criminal Trespass, Income Tax evasion, Larceny, Perjury, Robbery, Theft

Question 53

recklessly endangering another person through reckless conduct

Answer 53

The crime of recklessly endangering another person is a crime of assault which requires the creation of danger. As such, there must be an actual present ability to inflict harm.” A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.

Question 54

disorderly conduct

Answer 54

with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he engages in fighting or threatening, or in violent or tumultuous behavior.

Question 55

PA intervention

Answer 55

the disposition would affect the movant the movant could have joined the action jdgmt may affect a legally enforceable interest

Question 56

Dissenter's right Exception Procedural Req

Answer 56

Shortform merger SHs entitled to vote on merger/asset ssale or amendment of AOI The right to have shares purchased by the corporation EXC 1. nationally listed or 2. held by more than 2000 Requirement 1. Written notice + intent 2. Either abstain or vote 3. After the action approval--> make a written demand

Question 57

PA SOL

Answer 57

e statute of limitations should be raised as an affirmative defense in a responsive pleading under the heading “New Matter” pursuant to Pennsylvania Rule of Civil Procedure 1030(a)

Question 58

Legal malpractice element. (cf) Tort

Answer 58

To establish a claim of legal malpractice, a client must establish: (1) employment of the attorney or other basis for a duty, (2) the failure of the attorney to exercise ordinary skill and knowledge, and (3) that such negligence was the proximate cause of damage to the Plaintiff

Question 59

1.1 Competent representation

Answer 59

representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Question 60

Preemptive right

Answer 60

Right to buy enough stock to maintain ownership

Question 61

Corporate opportunity

Answer 61

1. Relation to the corporation's business | 2. Came to the director through corporation

Question 62

Ultra vires defense?

Answer 62

Abolished in PA

Question 63

PA conflict of law approach

Answer 63

Hybrid approach = Most significant relationship approach + Government Interest approach

Question 64

PA recording statute

Answer 64

Race-Notice

Question 65

PA mortgage

Answer 65

Title theory

Question 66

Mutual Mistake

Answer 66

1. The mistake to basic assumption of K 2. Mistake has a material effect on the agreed upon performance 3.

Question 67

Chattel PA

Answer 67

1. Fixture (damage) | 2. Trade fixture ( attached + for biz)

Question 68

Intentional Interference with a K

Answer 68

1. A valid K between P and 3P 2. D knew of he K relationship 3. D intentional interfernce --> causing breach 4. Breach caused damages.

Question 69

IIED

Answer 69

1. Intentional reckless engagement in 2. extreme and outrageous conduct 3. cuasing plaintiff 4. sever emotional Distress.

Question 70

Titl VII discrimination. prima facie

Answer 70

The elements of a prima facie case of gender disparate treatment based on pretext are: (a) she was a member of a protected group; (b) she was qualified to perform her job; (c) she suffered an adverse employment action; and (d) she was treated differently than similarly-situated males, or she was replaced with a less qualified male.

Question 71

SJ

Answer 71

no genuine dispute of fact

Question 72

Burden shifting

Answer 72

PL prima facie D LNDR PL pretext

Question 73

Motion for new trial standard

Answer 73

In considering a Motion for New Trial asserting the verdict is contrary to the weight of the evidence, a trial court must evaluate all significant evidence to determine whether the jury has disregarded the clear weight of credible evidence such that a new trial is necessary to prevent injustice

Question 74

PA anticipatory repudiation

Answer 74

An anticipatory repudiation occurs before performance is due when there has been an absolute and unequivocal refusal to perform or a distinct and positive statement of an inability to do so.

Question 75

PA anticipatory repudiation --> retraction

Answer 75

Obligor may retract repudiation unless obligee has changed position in reliance on repudiation. Beth’s repudiation discharged Art’s obligations under the contract

Question 76

Essential element of the deed

Answer 76

to be delivered Actual or manual delivery of the deed, however, is not necessary for delivery to occur. Whether there has been delivery of a deed is a question of fact and depends upon the intention of the grantor as shown by his words and actions and by the circumstances surrounding the transaction.

Question 77

Divorce and effect on the will

Answer 77

Divorce revokes all will provisions in favor of the former spouse, unless it can be shown that the testator intended for the will to survive.

Question 78

PA in-terrorem clause

Answer 78

A no-contest clause, also known as an “in terrorem clause,” is an express clause within a will designed to deter a beneficiary from suing over his share by causing him to lose his share entirely if he does so. Pennsylvania has held no-contest clauses to be unenforceable against claimants as long as the claimant had probable cause.

Question 79

PA will requirement

Answer 79

“Every will shall be in writing and shall be signed by the testator at the end thereof . . .” the writing must be dispositive in character and the disposition must be intended to take effect after the testator’s death.

Question 80

Oral will?

Answer 80

No

Question 81

Dependent Relative Revocation

Answer 81

In circumstances where a testator has revoked a valid will in reliance upon the validity of a subsequent will or codicil which is determined to be invalid, the doctrine of Dependent Relative Revocation may be applied to reinstate the revoked will. I

Question 82

PRC communication with a represented party

Answer 82

“In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”

Question 83

Emp discrimination - hostile work environment

Answer 83

To establish a hostile work environment, a plaintiff must show that there was unwelcome, gender-based, harassing behavior “sufficiently severe or pervasive to alter the conditions of [their] employment and create an abusive working environment.” Meritor Savings Bank, FSB, 477 U.S. at 67, 68. The environment must be objectively hostile or abusive – one that a reasonable person would find hostile or abusive – as well as subjectively perceived by the plaintiff to be abusive.

Question 84

Establishment of K in will

Answer 84

(a) Establishment of Contract - - A contract to die intestate or to make or not to revoke a will or testamentary provision or an obligation dischargeable only at or after death can be established in support of a claim against the estate of a decedent only by: (1) provisions of a will of the decedent stating material provisions of the contract; (2) an express reference in a will of the decedent to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract.

Question 85

Preliminary injunction

Answer 85

In addition to a likelihood of success on the merits, Penny must establish that irreparable injury will result if the injunctive relief is not granted; that harm to Penny will outweigh harm to State S; and that the public interest will not be harmed if the preliminary injunction is granted.

Question 86

Religious freedom in CTT

Answer 86

Establishment clause, 1st AMD

Question 87

Lemon test. Est clause

Answer 87

Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105 (1971) and include: (1) the governmental action must have a secular purpose; (2) it must have a primary effect that neither advances nor inhibits religion; and (3) it may not foster an excessive entanglement with religion.

Question 88

Right of first refusal

Answer 88

-