Flashcards in PA Specific Rules 2017 Deck (134)
What is the definition of burglary?
If person enters a building or occupied structure, or separately secured portion thereof, with intent to commit a crime therein. Except where premises are open to the public
What is definition of robbery?
In the course of committing theft, person physically takes or removes property from the person of other by force, however slight.
What is the definition of larceny (THEFT in PA).
Unlawful taking or exercising control over movable property of another with intent to deprive him thereof.
Murder in second degree
Homicide constitutes murder in second degree when it is committed while the D was engaged as a principle or accomplice in perpetration of felony (aka felony murder).
What is a principal?
Person who is the actor or perpetrator of a felony.
What is a felony in relation to felony murder?
Act of D engaging in or begin an accomplice in the commission of, or attempt to commit felony.
What is hearsay?
Statement (other than one made by declarant) offered as evidence to prove the truth of the matter asserted.
When is hearsay admissible?
It is not, unless it falls within an exception.
True or False: Absence of Declarant is a valid exception to rule that hearsay is inadmissible?
True. Where it declarant is unavailable as a witness and the statement was made by the declarant while believing that the declarant's death was imminent, or declarant believed impending death.`
What is the PA rule regarding division of marital assets?
What is defined as "marital property" for the purposes of equitable distribution?
All property obtained during the marriage, together with the increase in value of any non-marital property acquired prior to marriage. This is measured from date of marriage to either date of final separate OR date as close to hearing on equitable distribution as possible. (Whichever results in a lesser increase).
What protections offered by Americans with Disabilities Act (ADA)?
(A) Prohibits employers from discriminating against qualified individuals based on disability.
(B) Employer also required to provide reasonable accommodation with regard to known mental or physical limitation of otherwise qualified person UNLESS the employer can show that such an accommodation would cause undue hardship.
What protections offered by Civil Rights Act of 1964?
Prohibits discrimination against employees on the basis of race, color, national origin, religion or sex
What qualifies as disability under the ADA?
(1) actual disability, (2) record of disability, or (3) regarded as having a disability.
When does a Plaintiff have an actual disability under the ADA?
Physical or mental impairment that substantially limits or more major life activities.
--Substantially limited - compared to most in general population
Are "mitigating measures" considered when determining whether P is substantially impaired by actual disability?
No. Mitigating measures that eliminate or reduce the symptoms or impact of impairment cannot be used in determining whether P has disability.
Do "episodic impairments, or remissions" qualified as disability under ADA?
What is required to prove existence of disability via "record of disability?"
If individual has record of physical impairment that substantially limits one or more major life activities.
What is required to prove existence of disability via P is "regarded as having disability?"
Employer "regards" an individual as having a disability if it takes an action prohibited by teh ADA based on individuals impairment or on an impairment employer believes the individual has.
(Ex. sever facial disfigurement)
What are the elements of "failure to accommodate" claim under the ADA?
(1) P has a disability, (2) P is qualified to perform, with or without reasonable accommodation, and (3) P suffered an adverse employment action as a result of discrimination.
What is required to demonstrate P is "qualified individual" under ADA claims?
Burden on P to show she (i) Possesses requisite skill, and (ii) she is able to perform essential functions functions of position with or without reasonable accommodation
What is the definition of the defense of "undue hardship" under disability discrimination ADA claims?
Employer defense. Action would require significant difficulty or expense when considered in relation to factors such as size of business, financial resources and nature/structure of operation.
What is the purpose of the ADEA -- Age Discrimination Act?
Makes it unlawful for an employer to discharge any individual or otherwise discriminate against an individual based on age.
What is the definition of a potential plaintiff under the ADEA?
Plaintiff must be 40 years or older. Reverse age discrimination has been rejected.
What are the exemptions of the ADEA?
(i) Bona fide executives (employer may require mandatory retirement of bona fide executive at 65); (ii) safety officers; and (iii) elected and appointed officials
What is the bona fide occupational qualification defense to the ADEA?
Employer shows that an age restriction or differential treatment of older employees is reasonable necessary to its primary mission.
Standard -- STRINGENT - usually requires empirical evidence that increase in age is linked to decline in jbo competency (Ex. air pilot)
What is the "reasonable factor other than age" defense to ADEA?
Employer may engage in practice that has disparate impact on older applicants or employees when such difference is based on reasonable factor other than age.
(if policy reasonably based on age, defense does not apply).
What are the common discrimination claims?
(i) Disparate treatment (including individually and systematically); (ii) failure to accommodate; (iii) harassment; (iv) retaliation
What are the elements of a prima facie case for disparate treatment for employment discrimination?
Employee must show: (i) she is member of protected class, (ii) she was qualified for the position, and (iii) suffered an adverse employment action.
THEN, burden shifts to employer to offer legitimate, non-discriminatory reason for alleged treatment.
Can the bona fide occupational qualification defense be used against race?
What are the two main categories of harassment claims?
(1) Quid Pro Quo, or (2) Hostile Work Environment
What is quid pro quo?
Category of harassment, applies only to sexual harassment. In such a case, alleged harasser must be superviosr, made sexual advance, carried out threat of consequence and P must prove adverse employment action.
What is hostile work environment claim?
Claim arises when employee expereiences unwelcome and offensive sexual conduct or unwelcome offense conduct that is so severe or pervasive is alters the terms and conditions of employment.
Explain the extent of employer liability for quid pro quo claims vs. harassment claims.
Quid pro quo -- employer is automatically liable for QPQ sexual harassment that results in adverse employment action.
Hostile work environment -- Employer liable unless it can show by preponderance of the evidence that it (i) took reasonable measures, (ii) employee unreasonably failed to take advantage of corrective opportunities.
(Ex. anti-harassment policy distributed to every employee).
What are the elements of a claim of retaliation?
P must show (i) P engaged in activity protected by one of the discrimination statuses, (ii) employer took adverse action against employee, and (iii) causal connection exists between activity and action.
What remedies are available for employment discrimination claims?
(A) legal remedies, including compensatory, punitive and liquidated damages including legal fees.
(B) equitable remedy, including reinstatement, backpay
Are compensatory damages/punitive damages available under ADEA claim of employment discrimination?
Are common law marriages valid in PA.
Only those contracted BEFORE january 1 2005.
What are the ways to end a marriage?
(i) annulment, (ii) divorce and (iii) death
What is an annulment?
Action that voids a marriage and declares it as never being valid.
Under what circumstances will a marriage be declared VOID?
(i) prior existing marriage, (ii) incest, (iii) mental incapacity, and (iv) either party under 18.
When is a marriage VOIDABLE (where one spouse seeks annulment)?
(i) age (under 16 without parental consent) or (ii) impotency unknown at time of marraige, (iii) intoxication (within 60 days), (iv) or fraud.
When a marriage is terminated by annulment - how are assets divided?
Have access to equitable distribution!
What are the grounds for divorce in PA?
Includes both fault and no-fault grounds: (1) bilateral no-fault; (2) unilateral no-fault grounds, or (3) recognized fault grounds.
What is bilateral no-fault grounds for divorce?
Mutual consent by both parties, confirmed by affidavit that marriage is irretrievably broken and wait 90 days.
What is unilateral no fault grounds for divorce?
Both parties live apart for at least 2 years and marriage is irretrievably broken. Period of separation begins when one spouse has communicated to the other intent to dissolve the marriage relationship.
What are the grounds for fault based divorce in PA?
(1) Adultery, (2) cruelty, (3) desertion, (4) bigamy, (5) Imprisonment, (6) indignity, and (7) institutionalism
What is the recimination defense?
Defense to fault based divorce claims, that both spouses committed marital wrongdoing. (Complete defense to adultery).
What is the rule regarding division of property in PA?
What is the rule of equitable distribution?
Court divides marital property in a fair and equitable manner. Each party does not necessarily get 50%
What is the definition of "marital property?"
All property acquired during marrage. And increase in value of all non-marital property during the marriage up to date of separation or equitable distribution hearing, which results in less increase.
(Increase in value can be offset by decrease in value of non-marital property).
True or False: Separate property that is co-mingled with marital property becomes marital property?
What are the PA exceptions to marital property?
(i) acquired before marriage, (ii) excluded by parties valid agreement, (iii) acquired by gift, (iv) acquired after final separation, etc
What are some key factors in distribution of marital property?
(i) length of marriage, (ii) prior marriages, (iii) age/health/earnings/liabilities of both spouses, (iv) contributions to education... income ... value of separate property ... standard of living ... who will be in custody of minor child.
What is the rule regarding valuation of marital assets in PA?
Valuation of marital assets should reflect value as of the date of distribution (vs. date of separation or date complaint was filed).
What is the rule in PA regarding marital property and professional licenses?
Not considered a distributable property interested.
However, retirement/pension benefits earned during marraige are to be distributed equally
In PA, what is the definition of spousal maintenance?
AKA alimony. award of funds to spouse from other spouses income. Awarded if one spouse cannot provide for her own needs with employment. Alimony payments can be made for definite or indefinite amount of time.
What is alimony pendente lite?
Alimony payments made during divorce proceeding to put spouse in position of equality during proceedings.
What are some factors of spousal maintenance determination?
Financial resources; standard of living; time; length of marriage; age and health; marital misconduct.
What are common types of spousal support?
(i) lump sum, (ii) periodic, (iii) rehabilitative (for limited time until some event is achieved).
**All payments taxable as income
Under what circumstances can spousal support be modified in PA?
(i) death, (ii) remarriage, (iii) cohabitation.
**However, cohabitation does not terminate alimony pendente lite.
What are the statutory residency requirements for SMJ regarding family law claims?
PA law requires at least one spouse to be a bona fide resident of the state for 6 months before commencing matrimonial action.
What is the PA rule regarding blood tests and child support?
Court may order blood test to determine paternity. However, PA does not allow blood test to rebut presumption of paternity. SO presumption is that child born to mother is also child to her husband.
Does PA mandate parent's responsibility to pay for secondary education expenses?
When may child support be modified?
Only if there is a material and substantial change in circumstances regarding the child's needs or parents' financial situation.
**This does not include when spouse voluntarily quits her job.
When does child support usually terminate?
When child reaches age of majority (typically 18).
Exception - if child is unable to support self due to mental/physical disability.
What is the Uniform Child Custody Jurisdiction and Enforcement Act
Purpose is to prevent jurisdictional disputes with course in other states on matters of child custody and visitation.
What is the initial custody determination rule of the UCCJEA?
Courts have jurisdiction to preside over custody hearings and modify custody/visitation orders if: (1) sits in child's homes state, or (2) was child's home state in the past six months and child is absent, but one of parents continues to live there.
What is the rule of exclusive continuing jurisdiction regarding courts in child custody cases?
Rule: Courts have exclusive jurisdiction over the matter until the court determines (i) the parties no longer resided in the state OR (ii) the child no longer has significant connection to the state AND any substantially evidence connected to the child's condition is no longer available in the state.
What is the "best interests and welfare of child" standard?
Standard for determining child custody, considering all relevant factors and weighting such factors which affect the safety of child.
Enforcement of child custody and visitation orders is generally granted by civil court order - what is the rule regarding "home state" jurisdiction?
The home state has jurisdiction if it has been the home state of child within the 6 months prior to beginning of custody hearing. Home state is also where chid or parent is currently residing. or where there is significant physical presence.
What are the key types of marital agreements?
(i) Premarital agreements, (ii) separation agreements, (iii) property settlement agreements
What are the rules regarding the validity of marital agreements?
Courts will enforce if agreement has been fully disclosed, it is fair and reasonable and it is voluntary.
**discuss procedural fairness
**PA rejects notion that prenup agreement has to be reasonable for other spouse; if full and fair disclosure -- spouse has right to make unreasonable deal.
What is the definition of adjusted gross income?
GROSS INCOME (all income from whatever source) MINUS CERTAIN DEDUCTIONS.
What is the rule regarding gross income and SERVICES paid for property.
Fair market value of property is the amount of compensation reported as income.
(Ex. I will mow your lawn for 6 months in exchange for the lawn mower). FMV of lawn mower = income.
Do contributions to retirement plans count as gross income?
Generally not. Contribution by employer direct to retirement plan is excludible from income.
What is an "above the line deduction."
Federal Income Tax; deductions subtrated from gross income when computing AGI.
Common examples = alimony, job related moving expenses, contributions to IRA.
Do stock and stock option plans count as gross income?
No; not included as gross income at time stock is purchased.
Unemployment compensation count as gross income?
Yes, unless under $2400.
Are retirement DISTRIBUTIONS included in gross income?
Generally yes; distributions from retirement plans and pensions are includible in gross income by recipient.
Does interest income count as gross income?
YES. Including interest earned in an annuity is includible in gross income.
Interest paid on state and local obligation however is excluded from income
Are dividends included as gross income?
Is rent included as gross income?
Is royalty payment includes as gross income?
Yes, royalty payment received from copyright, patent or lease is taxable income.
Are alimony payments taxable gross income?
Yes. Provided they are paid in cash; received on behalf of spouse... etc.
Are prizes and awards taxable income?
Generally yes. Exception for employment achieve award up to $400 OR employment recognition award.
What is the rule regarding federal income tax and gambling winnings?
Gambling winnings are included as taxable income for winner. Gambler may deduct the cost of the wager.
What are the rules regarding taxation and partnerships?
Partnerships are not taxable entity. tax is pass-through. Each partner in partnership must report her share of partnership ordinary business income or loss.
What are some general items excluded from gross income?
Employer provided benefits; property settlement payments made as consequence of divorce; life insurance proceeds.
What are common examples of employer provided benefits that are excluded from gross income?
(1) employer provided meals/lodging; (2) employer provided fringe benefits; (3) employer provided health plan; (4) educational assistance program UP TO $5,000 per year.
What is the rule regarding taxable income and property transfers due to divorce?
NOT included in gross income.
What is rule regarding taxable income and gifts.
Gifts are excluded from gross income.
Are person injury damages included as gross income?
Yes. Damages, including settlement payments, from physical injuries or sickness are excluded from gross income.
**compensation for non-physical injury must be included in gross income.
Are life insurance proceeds taxable income?
Excluded as gross income for beneficiary.
What is the rule regarding qualified scholarships as taxable income?
Income received from qualified scholarship is excludible from gross income.
**To the extent scholarship received is for room and board or travel, it is included in gross income.
When are business expenses deductible?
When ordinary and necessary business expense. Necessary is "appropriate and helpful" to business.
What are two common business expenses that may be deducted?
(1) Employee compensation/benefits, and (2) rent.
When do home office expenses count as deductible business expense?
Area of residence must be regularly and exclusively used for business.
What is the rule regarding "business-linked entertainment" and deductible from taxable income?
Cost of entertainment is deductible provided entertainment is DIRECTLY related to or associated with businessperson's take or business.
What is the analysis for educational expenses and whether the are deductible form taxable income?
(1)Is the expense incurred to satisfy minimum educational requirements OR to qualify for new trade or business? IF Yes, no deduction. If no, go to #2
(2) Is educational expense for skill improvement or current job preservation? If yes = DEDUCTIBLE.
Ex. Teacher who obtains additional education to teach more than one subject.
What is the general rule regarding long arm statute in PA?
PA allows jurisdiction to be granted over out-of-state defendants as long as it does not violate PA or US constitution. Therefore, as long as D engages in activity that is connected with PA, likely basis for jurisdiction.
What is the general rule in PA regarding venue?
Court where individual can be served, where cause of action arose, where transaction took place or where SM property is located.
What is exception to venue rule regarding Medical Malpractice claims?
Venue lies ONLY in the county where the cause of action arose unless COA arose outside PA.
What is the rule regarding transfer of venue?
Venue may be transferred where: (i) fair and impartial trial cannot be had in original county, (ii) convenience of witness/parties requires change.
Who must complete service of process in PA?
Sheriff; however in actions in EQUITY, any competent person over 18 and not party or relative of party to action may also make service.
What is the immunity rule regarding service of process and defendants temporarily present in PA?
Such D has immunity -- while in PA for temporary basis for court proceeding, out-of-state D cannot be served with process in another action.
What is the time limit for service in PA?
30 days from filing of complaint.
What is PA's good faith effort rule regarding service in civil trial?
If D not served within 30 days, court may reissue or reinstate complaint provided P made good faith effort to serve. NO limitation to times complaint may be reissued.
What is the rule regarding issuance of preliminary injunctions?
Preliminary injunction may be issued only after written notice and hearing UNLESS it appears to court there is risk of IMMEDIATE and IRREPARABLE HARM before notice/hearing can be held.
What are some factors P must demonstrate to get preliminary injunction?
(i) immediate and irreparable harm, (ii) greater injury would result without PI, (iii) injunction would restore parties to status that existed before alleged harm, (iv) party seeking injunction likely to succeed on the merits.
What is the general rule regarding preliminary objections in civil procedure?
Within 20 days of service of complaint, D must respond by answer or pre-answer motion or seek additional time = Preliminary objections.
What are common grounds for filing preliminary objection in PA?
(i) court lacks SMJ, (ii) improper venue, (iii) process of service insufficient, (iv) lack of legal capacity, (v) pleadings fail to state sufficiently specific facts.
What are the three grounds for preliminary objections are NOT WAIVED if not made?
(1) Lack of SMJ, (2) Pleadings fail to state sufficient facts to constitute cause of action, (3) Defect in joinder of parties.
What is the separate action "New Matter."
Unlike federal rules, PA requires all affirmative defenses to be brought under a separate section labeled "New Matter."
When is a reply required under PA civil procedure law?
Reply is only required when preceding pleading contains a notice to defend of notice to plead. Reply must be filed within 20 days.
What is result if defendant fails to respond to complaint?
After 20 days, plaintiff can proceed to obtain default judgment.
What is joinder?
Situation where party wants to add another party to existing action.
What is rule regarding compulsory joinder?
In PA, person who has only a joint interest in subject matter of litigation MUST BE JOINED with appropriate party.
PA also requires joinder of related plaintiffs in personal injury action.
What is permissive joinder?
Generally, where party has any right to relief jointly.
What is Joinder of Additional Defendants
AKA Impleader. When COA alleged in complaint adds new D, that COA must arise out of same transaction or occurrence as original P's cause of action.
To add new D, COA must arise out of original COA.
What is an intervention under PA civil procedure?
Non-party joins lawsuit.
What is timing rule for Joinder in PA?
Under PA law, party may join additional D within 60 days of date that P's initial pleading was served on original D OR within time permitted to file an answer.
What is the definition of class action?
Any action brought by or against parties as representatives of class . Class action may only be brought by filing complaint.
What are the basic requirements of class action claims?
PA requires the class action must bring about FAIR AND EFFICIENT adjudication of controversey (need not be superior method of adjudication).
Are there mandatory disclosures under PA civil procedure?
No automatic disclosures.
What is the general rule regarding scope of discovery?
Party may obtain discovery regarding any matter, not provileged, that is relevant to subject matter in pending action.
When is discovery not permitted in civil trial?
Privileged; sought in bad faith; embarassing, oppressive, burdensome; attorney work product or opinion
Does PA allow discovery of insurance information?
P may use discovery to obtain information on D's insurance policy for purpose of determining SOLVENCY.
What is the general rule regarding interrogatores.
No limit on number of interrogatories (though may achieve protection for unreasonable annoyance); must in writing and verified; must be served within 30 days.
Is there a limit on number of depositions?
NO. Party desiring deposition must only give reasonable notice. Deposition may be used for any purpose.
What is Motion of Judgment on Pleadings
Motion by party for judgement on facts as established in pleadings only.
ONLY WHEN NO DISPUTED FACTS is moving party entitled to judgment
When may party move for Motion For Summary Judgment
(i) where no genuine issue of fact as to necessary element OR (ii) if an adverse party who will beat burden of proof at trial has failed to produce evidence of facts essential to cause of action
What is PA Nanty-glo rule
Under PA law, oral testimony alone IS GENERALLY INSUFFICIENT TO ESTABLISH ABSENCE OF GENUINE ISSUE OF MATERIAL FACT. (varies from federal rule)
**Oral testimony = affidavits or depositions