PA

Wills - Lost/Destroyed Wills

PA permits probate of a lost/destroyed will by meeting the lost wills requirements. Proponents have burden of proving contents of the lost will by clear and convincing proof: re-establishing what will said by C&C evidence: 1. T duly and properly executed OG will 2. W's contents were substantially same as content of copy presented for probate and 3. when T died, will remained undestroyed/ or unprovoked by T

Wills - Revocation of Duplicates and Codicils

an act on one of the executed duplicates, revokes ALL (the will). General rule: physical rev of a codicil does not revoke the will, BUT rev of a will revokes all codicils B4 the revocation unless a contrary intent is established -

Wills - Revocation: Via written instrument

will or any part may be revoked or altered by express terms of a subsequently written will, codicil or other writing if executed w/ the formalities required for wills - may also be revoked by implication from inconsistent terms of a subsq. instrument. in PA, a will that dispose of ALL T's prop completely revokes all prior wills

Murder in the Third Degree Under Section 2502 ❗

"All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree." Third degree murder is punishable by a prison sentence of 10-20 years. Killing someone without premeditation or without intention is third degree murder, so long as it was not done while committing a felony (second degree murder).

Evidence: Expert Opinion

1. Four basic requirements for expert testimony: 1) Appropriate subject matter. Pennsylvania rule is different than in federal court. 2) Qualified witness. Pennsylvania is slightly different than federal court rule. 3) Reasonable certainty. Just like Federal Court. Expert must testify with reasonable certainty. 4) Proper basis. Pennsylvania is slightly different than federal court rule. 2. Appropriate subject matter F.R.E. 702 codifies Daubert rule for all expert testimony (allows expert testimony only "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case"). Pennsylvania variation: • Pennsylvania has not adopted the Daubert reliability test, but continues to apply the Frye test; • Test applies only to novel scientific, technical or otherwise specialized knowledge; • Frye test: The question is general acceptance of the methodology (not reliability of methodology). • Applying this rule, PA does not allow expert testimony on false confessions, revived memories, or lie detectors; • PA does allow expert testimony on battered child/spouse syndrome; eyewitness identification; professional negligence/malpractice; and product/design defect. • PA allows testimony about information obtained from a vehicle's "black box" or "event data recorder" • Under a 2012 statute, qualified experts are permitted to provide expert opinions concerning the dynamics of sexual violence, victim responses to sexual violence, and the impact of sexual violence on victims during and after being assaulted. Actual Case: Fingerprint evidence in a federal court trial: Daubert hearings to determine if it was reliable based on current scientific facts & data. What if in a Pennsylvania trial? Is it novel? Is it generally accepted? ________________________________________________ 3. Qualifications - need not be formal or academic Pennsylvania variation: "Reasonable pretension of specialized knowledge" Pa.R.E. requires "knowledge beyond that possessed by the average layperson," but Pennsylvania courts and comment to rule refer to "reasonable pretension." Special Rule: In medical malpractice cases, the MCARE statute restricts who can testify as an expert. Expert witness must be in same specialty as defendant. 4. Expert must testify with reasonable certainty regarding the opinion 5. Opinion must be supported by a proper factual basis Facts supporting the opinion must be either a) Facts within the expert's personal knowledge; or b) Established by evidence in court; or c) Of a type that experts in that field would reasonably rely upon. Un-admitted evidence may be the basis for expert opinion, as long as other experts in the field would reasonably rely upon such evidence. BUT: Pennsylvania law is clear that a witness expert cannot simply endorse the report and opinion of a non-testifying expert. 6. Disclosure of expert's basis F.R.E. 703 and 705 excuse expert from disclosing the basis of the opinion and preclude introducing otherwise inadmissible evidence that forms part of the basis unless probative value for understanding the opinion outweighs prejudicial effect. In Pennsylvania, Pa.R.E. 705 requires expert to disclose the basis of the opinion. Hypo: In a criminal case, the defendant pleads insanity. The prosecution calls Doctor to testify that the defendant was not insane at the time of the crime. Doctor bases opinion in part on defendant's past pattern of criminal behavior. Defendant's criminal acts are not admissible in the trial. May Doctor give his opinion? May he disclose defendant's criminal behavior? What if the expert just rubber stamps the opinion of a different expert? Hypo: Doctor Witness, an orthopedic surgeon, testifies that she read the report of Doctor Non-witness and that she agrees with the conclusions expressed in Non-witness's report. 7. Opinion on the accused's sanity: F.R.E. 704(b) bars testimony that defendant was "insane," "did not know the difference between right and wrong," or understood the "nature and quality of his acts." Pennsylvania variation: There is no PaRE 704(b) or its equivalent. 8. Learned Treatise F.R.E. 803(18): allows passages from learned treatises to be read into record for truth of their contents if conditions are met. PA variation: This hearsay exception has not been adopted. A learned treatise may form part of expert's basis under Rule 703, and may be used to impeach expert, but is not admissible substantively and cannot be used to prove the truth of the contents.

DUI - levels

3 three levels of DUI categories 1. General impairment: BAC of at least .08% but less than .10% 2. High rate of alcohol: BAC of at least .10% but less than .16% 3. Highest rate of alcohol: BAC of .16% or higher relevant for grading and sentencing purposes

WILLS - PRETERMITTED CHILDREN

A pretermitted child is born or adopted after the will is executed and is entitled to taken intestate share - unless appears omission was intentional rational: is an intentional omission EXCEPTION: can't use property T left to spouse to fund pretermitted child

PA Property

Adverse possession --> statutory requirement: 21 years

Con Law - Article I Section 8 of the Pa. Constitution

Article I Section 8 of the Pa. Constitution offers broader protection than the Fourth Amendment, and that after an Edmonds analysis, the appellant was entitled to relief based exclusively under the Pa. Constitution.

COI

Clashes Between Two or More States' Laws ♣ Major Methodologies: For the purposes of the Pennsylvania Bar Examination, you should know three choice of law methodologies: the territorial approach of the Restatement (First) of Conflict of Laws, the governmental interest approach, and the most significant relationship approach of the Restatement (Second) of Conflict of Laws. ♣ Governmental Interest Analysis (1) Governmental interest analysis resolves conflicts issues by referring to policies underlying competing laws. (2) Governmental interest analysis starts from the premise that a forum should apply its own law unless a party requests that another law apply. If such a request is made, the court must undertake the following analysis: a. Identify policies and evaluate contacts: ♣ Policies: Upon request of a party, the court should identify the policies expressed in competing laws through "the ordinary processes of construction and interpretation." ♣ Contacts: The court should evaluate each state's policies in light of the parties' contacts with the state to determine if the policies are relevant to the particular dispute before the court. If a state's policies are relevant to the dispute, the court should conclude that the policies represent interests of the state. b. False conflict: If the court finds that one state has an interest and the other does not, the court should apply the law of the interested state. c. Apparent and true conflicts: If the court finds a conflict between interests, it should ascertain whether a "more moderate and restrained interpretation" of the policy apparent or interest of one state or the other will avoid the conflict. If the court finds that the conflict of legitimate interests is unavoidable, the court has identified a true conflict and should apply forum law. d. Disinterested forum: If the forum court has no interest in applying its own law, but determines that two or more states have legitimate competing interests, the forum can dismiss the case pursuant to the doctrine of forum non conveniens. If forum non conveniens is not available, the forum court may take one of two routes: (i) make its own judgment as to which law is better; or (ii) apply the law that most closely resembles its own. e. An unprovided for case: If the court finds that no state has an interest in the application of its law, the forum law should govern. ♣ The Restatement (Second) of Conflict of Laws (1) The Second Restatement seeks to incorporate the advances in modern approaches into a flexible approach that avoids the mechanical rigidity of the First Restatement. (2) Except for a few areas for which it provides bright-line rules, the Second Restatement approach interweaves two elements: the policies of §6 and connecting factors of particular significance for various types of lawsuits. These two elements are considered in order to pinpoint the jurisdiction with the "most significant relationship" to the dispute. a. Section 6. Section 6 lists general policy considerations that may serve as guideposts in any analysis under specific sections of the Restatement Second. The considerations include: i. the needs of the interstate and international systems; ii. the relevant policies of the forum; iii. the relevant policies of other interested states including their interests in having their law applied to the particular issue; iv. the protection of party expectations; v. the basic policies underlying the particular field of law; vi. the objectives of certainty, predictability, and uniformity of result; and vii. the ease of determining and applying the law previously identified as applicable. b. Connecting Factors. For particular areas of the law, the restatement lists "connecting factors" that provide specific guidance about the jurisdictions that have a claim to the application of their laws. c. The Most Significant Relationship. Absent a preexisting choice by the parties, the court is to apply the law of the jurisdiction with the most significant relationship to the dispute. The court should arrive at this conclusion by reference to both the policy provisions of §6 and the connecting factors. (3) The general section for tort issues, §145, provides an example of the interrelationship between the principles of §6 and the connecting factors. Section 145 provides: (a) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in §6. (b) Contacts to be taken into account in applying the principles of §6 to determine the law applicable to an issue include: ♣ (i) the place where the injury occurred; ♣ (ii) the place where the conduct causing the injury occurred; ♣ (iii) the domicile, residence, nationality, place of incorporation and place of business of the parties; and ♣ (iv) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance to the particular issue. Restatement (Second) of Conflict of Laws §145. a. HYBRID APPROACH • The Pennsylvania Approach: The Pennsylvania Supreme Court has announced that Pennsylvania courts should follow a hybrid methodology, combining governmental interest analysis with the Restatement (Second)'s most significant relationship approach. a. Pennsylvania courts apply the law of the state with the greatest interest in the legal issue. The court finds that interest by evaluating the contacts each state has with the transaction. b. Only those contacts that relate to the policies and interests underlying the particular issue before the court are relevant. The state's contacts are measured on a qualitative rather than quantitative scale to determine which state has a stronger interest. 2. Strategy for Bar Exam Answers a. Describe Pennsylvania's hybrid approach. b. Perform the first steps of governmental interest analysis: identify policies behind competing laws and compare each jurisdiction's policies with the relevant contacts in the jurisdiction to determine whether the policies are implicated in this case. c. For false conflicts, apply the law of the interested state. d. For true conflicts, resolve the conflict by applying the law of the state with the greatest interest. Case law suggests that the state with the greatest interest will be the state with the most significant relationship with the dispute. Evaluate the contacts qualitatively, not just by counting them. To perform this qualitative analysis: 4. List the connecting factors (contacts between each state, the parties, and the subject matter). 5. Evaluate the connecting factors by reference to the policy oriented principles listed in §6 of Restatement (Second) of Conflict of Laws. See III.A.1.c.(2)(a). e. Although not true to Pennsylvania case law, past examiners' analyses have sometimes listed results under one or more of the three main approaches (First Restatement, governmental interest analysis, and Second Restatement). Accordingly, if one has time, one would be advised to add a short description of these three approaches and venture a short answer on how the conflict of laws would be resolved under each approach individually.

KIT CON LAW - COMMERCE CLAUSE

Commerce Clause. Market participant exception when a state is acting on its own behalf, rather than as a regulator. Commerce Clause applies to proposed legislation subjecting outof- state products to a different level of damages. Equal protection. First Amendment Free Speech Clause: Commercial speech. Compelled speech.

Statutory Sex Assault / Mistake of Age ❗

D per se guilty of stat sex assault - felony when w/ minor (under 16) DEFENSE: Mistake of age reasonably believed?

KIT CON LAW - 5TH AM SELF-INCRIMINATION

Fifth Amendment: Privilege against self-incrimination applies to civil proceedings, including discovery depositions.

Resisting arrest

G of RA when w/ intent of preventing a pub servant from eff a lawful arrest or discharging another duty he creates a sub rick of bod injury to pub servant or another else or employs means justifying sub force to overcome resistance

KIT CONTRACTS - MATERIAL MISTAKE

If at the time of making of a contract, one party made a material mistake as to the basic assumption underlying the contract, the contract is voidable by that party if it does not bear the risk of the mistake and enforcement of the contract would be unconscionable or the other party knew or had reason to know of the mistake

Civil trials - 12

If requested

Taxes (KIT)

Illegal income must be declared

Evidence: Judicial Notice

In PA, judicial notice is not conclusive. The court will not instruct the jury to accept the judicially noticed fact.

Wills - Intestacy vs testate

Intestacy vs testate inheritance rights under under intestacy - intestacy ctrls rights of succession inheritance rights if testate - will ctrls. whatever you want.. if you want method to b per stripes or whatever, the will curls

Entrapment

PA - Minority rule

KIT CON LAW - Preemption

Preemption: Express preemption applies where Congress has explicitly indicated its intention to preempt state law in the text of the statute.

Employment Discrim: Title VII: Retaliation

Prima Facie: May be established w/ direct or indirect 1. protected activity 2. ER took action a R-EE or job applicant would find to be materially adverse in that it may ave dissuaded a R-EE from making or supporting a charge of discrim; and 3. there is a causal connection bt the protected activity and adverse action exs. 👫💑💍👨‍💼😡 finances w/in zone of interested parties

Evidence: Prior Convictions

Prior Convictions: By Pennsylvania statute, a witness who has been convicted of perjury is incompetent in civil cases only. Civil Cases: incompetent Criminal Cases: competent, BUT

KIT CON LAW - PRIVACY

Privacy: The Supreme Court has determined that certain "zones of privacy" are created by the Constitution, and that personal medical information has been deemed within the ambit of this zone of privacy. A balancing test should be applied to a requirement of disclosure of personal medical information, examining the type of information required to be disclosed, the potential for harm from any subsequent nonconsensual disclosure, the government's need for access to such information, and the adequacy of safeguards to prevent unauthorized disclosure.

Taxes - Gambling winnings and losses

RULE: Gambling winnings are included in gross income. Gambling losses may be used to offset gambling winning but only to the extent of the winnings.

Taxes - Prizes & Awards

RULE: Gross income includes the value of cash, property, or services received as a prize, award, or windfall. Examples of taxable prizes or awards: raffle prizes, gambling or lottery winnings, and treasure trove.

criminal conspiracy

Requires not only agrmt to cmt unlawful act but commission of an overt act in furtherance of such conspiracy by 1 of the co-conspirators

KIT CONTRACTS - RETRACTION OF REPUDIATION

Retraction of repudiation: An obligor who repudiates a contract prior to his performance can retract his repudiation and reinstate the contractual rights and duties of the parties. The retraction, however, must come to the knowledge of the injured party before he materially changes his position in reliance on the repudiation or indicates to the other party that he considers the repudiation to be final.

KIT CONTRACTS - RIGHT TO CURE

Right to cure: If a delivery by the seller is rejected and the time of performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery.

Wills - post execution changes

Rule: Post-execution changes are not effective unless the will is either re-executed or republished by codicil after the changes are made. ex. T's typewritten will made a bequest of "$10,000 to my friend X." Subsequent to the will's execution, T drew a line through the figure "$10,000" and wrote in above it "$15,000." a. Has the $10,000 bequest to X been revoked? Yes, revoked through physical act b. Can the interlineation ($15,000 bequest) be given effect? no. Should DRR be applied to reinstate OG 10k bequest?

📌‼️Evidence: Summary of PA Differences

SOURCES OF LAW: Pennsylvania Rules of Evidence; statutes; some common law. Pa.R.E. 403: to exclude evidence, negatives must outweigh probative value, but not substantially outweigh, as in F.R.E. 403. CHARACTER EVIDENCE: In PA, can use reputation but not opinion. (So testimony must be what people say, not what the witness knows, and cross is limited to "have you heard" rather than "did you know.") In civil assault and battery cases, Pa.R.E. 404 may allow evidence of P's violent character. In criminal cases: • If D proves good character, may cross D's character witness only about convictions (cannot cross about D's arrest(s) or prior conduct). • If D attacks victim's character, D opens the door to evidence of D's bad character. • Also, D can attack V's character with evidence of specific violent acts (as well as reputation). • Under Pa.R.E. 404(b) (other act evidence), the criminal D gets a more protective balance (admit only if probative balance outweighs prejudicial effect). COMPETENCY OF WITNESSES: In PA a witness may be incompetent if: • Immaturity or mental condition leads to weakness in C(communication) O(obligation to tell the truth) M(memory) or P(perception) - COMP • Witness was convicted of perjury (civil cases only) • Witness's memory was refreshed through hypnosis • Under the Dead Man Statute OPINION TESTIMONY: For novel scientific questions, court must determine general acceptance (Frye test) rather than reliability (Daubert test - federal rule). Pa.R.E. 705: expert must reveal basis for opinion. Learned treatise: Can use to impeach, but there is no hearsay exception. CREDIBILITY AND IMPEACHMENT: Pa.R.E. 607(b) provides that evidence relevant to impeach is admissible. Prior inconsistent statements: • Pa. allows more statements in for truth of matter asserted. • Foundation required before extrinsic evidence of prior inconsistent statement is admissible (Pa.R.E. 613): Statement must be disclosed (if oral) or shown (if written) to witness during cross-examination, witness must be given opportunity to explain or deny the statement, and opposing party must be given opportunity to question the witness about the statement. Impeachment with conviction of a crime: • Pa.R.E. 609 admits only crimes of dishonesty or false statement, and they are admissible regardless of prejudicial impact; the court does not balance. • Crimes of dishonesty or false statement: perjury, bribery, tax evasion, burglary, criminal trespass, robbery, larceny, theft, receiving stolen property, unauthorized use of an auto, unauthorized use of a credit card. • Crimes that do not qualify as crimes of dishonesty or false statement: assault, murder, rape, disorderly conduct, prostitution possession with intent to distribute. • Juvenile adjudications may be used to impeach in criminal cases. Cross-examination on prior bad acts (not convicted) is prohibited (Pa.R.E. 608(b)). Rehabilitation with Prior Consistent Statements (Pa.R.E. 613): • Prior consistent statements are admissible to rebut claim of improper influence or motive or recent fabrication and also admissible in response to impeachment with prior inconsistent statements or to rebut a claim of faulty memory. • Prior consistent statements are not admissible for truth of the statement, only to bolster in-court testimony (unlike federal rule). • Timing: Statement must have been made pre-motive or must pre-date alleged on-set of faulty memory or support explanation or denial of prior inconsistent statement. Prior statement of identification: witness must testify to making the prior ID. PRIVILEGES - Pennsylvania privileges are primarily found in statutory law Psychotherapist-patient privilege: psychologists and psychiatrists (not social workers). Doctor-patient privilege: Less protective. Spousal incompetency still applies in civil cases. HEARSAY Definition: FRE 801(d) defines certain statements of witness and party admissions as non-hearsay. Pennsylvania does not define these statements as non-hearsay. It admits some of them under exceptions to the hearsay rule. Statements for purpose of medical diagnosis or treatment (Pa.R.E. 803(4)): statement must be made in contemplation of treatment; does not extend to statements made to expert who examines only in order to testify at trial. Business records (Pa.R.E. 803(6)): exception does not extend to "opinions or diagnoses." Tender years' exception.

KIT CONTRACTS - GAP FILLERS

Sales: The U.C.C. includes "gap filler" provisions that come into play when the agreement of the parties is silent on some terms. These provisions will fill in a delivery "gap" by establishing a delivery schedule requiring delivery with a reasonable time under the circumstances

Section 27: Natural Resources and the Public Estate

Section 27: Natural Resources and the Public Estate Delaware Riverkeeper Network v. Federal Energy Regulatory Commission, --- F. Supp. 3d ----, 2017 WL 1080929 (D. D.C. March 22, 2017): per Chutkan, J., the district court held that Art. 1 Sec. 27 of the Pennsylvania ConsEtuEon which grants the people a right to clean air, pure water, and to the preservaEon of the natural, scenic, history, and estheEc values of the environment, did not create a federally protected property interest for purposes of due process. As a result, the plainEff failed to state a claim that FERC's funding structure deprived them of due process. Baker v. Dep't of Envtl. Prot. (http://caselaw.findlaw.com/pa-commonwealthcourt/ 1850999.html), 2017 WL 817123 (Pa. Commw. Ct. March 2, 2017): per Cohn Jubelirer, J., the court upheld an order of the Environmental Hearing Board ("EHB") that dismissed the Appellant's appeal of a Department of Environmental Protection's ("DEP") approval of a Stage 1 bond release related to surface mining on the Appellant's process. The court held that any claim that the DEP is not in compliance with the state's responsibilities under the Environmental Rights Amendment must be raised when appealing a DEP order to the EHB, otherwise the issue is considered waived on appeal to the Commonwealth Court. Kretschmann Farm, LLC v. Twp. of New Sewickley (http://www.pacourts.us/assets/opinions/Commonwealth/out/360CD15_1-7-16.pdf? cb=1), 131 A.3d 1044 (Pa. Commw. Ct. 2016): per Leavitt, J., the three-panel court held that landowner's challenge to township's grant of gas utility's conditional use permit was not pursued in accordance with the procedures established in the Municipalities Planning Code. During the court's discussion of an ordinance at issue that included that same setback language that was found unconstitutional in Robinson Township, 96 A.3d 1104 (Pa. Commw. Ct. July 17, 2014), the court recognized the plurality opinion in Robinson Township as only binding in that specific case.

PA - NO CRIMINAL BATTERY (ASSAULT)

Simple (5x) vs Aggravated Assault (3x) Simple Assault 1. Attmpting to cause or intentional, knowingly, or recklessly causing bod injury to another

KIT CON LAW - SOLICITATION OF FUNDSFORM OF PROTECTED SPEECH

Solicitation of funds is a form of protected speech under the First Amendment Free Speech Clause. A governmental fundraising campaign is a nonpublic forum for the expression of speech. In a nonpublic forum, the identity of the speaker and the subject matter of the speech is subject to reasonable control, so long as the distinctions made are reasonable in light of the nature of the forum. Distinctions drawn as to the identity of the speaker and subject matter must also be made on a viewpoint-neutral basis.

DUI: stop standards

Vehicle Stop: RS Vehicle Stop (on MV Code) resulting in DUI: PC [ex. weaving in and out of lanes, giving rise to PC motorist drunk] Belief motorist under the influence: RS (even if vehicle not in vio of the code, officier need not

INTOXICATION ❗⭐

Voluntary Intoxication PA - not a defense to a complete charge in PA - can be grounds to reducing murder to a lesser agree tested 3x

Arson - 2 distinct crimes person/property

person property

Con Law: EDMUNDS ANAYIS

privacy based-interests of Article I, Section 8. DP Analysis same

intentional tort of malicious prosecution

1. criminal proceedings instituted by D against Pl w/out PC 2. w/ malice 3. pl in the tort action must have prevailed in the criminal case special damages required

Taxes - 4 essential Tax Qs

1.What is income? 2.To Whom is it income? 3.When is it income? 4.What is the character of the income?

KIT KS & SALES: Acceptance

A written confirmation accepting an offer operates as an acceptance although it contains additional terms. If the confirmation is directed to a non-merchant the new terms are proposals for addition to the contract. If between merchants, the terms become part of the contract unless the offer limited acceptance to the terms of the offer, the terms materially alter the contract, or there is an objection to the terms within a reasonable time. A seller of goods creates an express warranty by any affirmation of fact or promise made by the seller to the buyer that relates to the goods and becomes part of the basis of the bargain. The warranty extends to any natural person who is in the family or household of the buyer or who is a guest in the buyer's home if it is reasonable to expect that such person may be affected by the goods and who is injured in person by breach of the warranty.

KIT CONTRACTS - ACCEPTANCE

Acceptance: To create a contract, there must be an offer on one side and an unconditional acceptance of the offer on the other side. At common law, an acceptance must be the "mirror image;" i.e., it must identically match all of the terms of the offer. If the acceptance changes the conditions of the offer, it is not an acceptance; it is a counter-offer and terminates the original offer.

Hearsay Exceptions

B. The Exceptions to the Hearsay Rule 1. Admission of a Party; Opposing Party's Statement F.R.E. 801(d)(2): defines opposing party's statements (also called "party admissions") as non-hearsay. Pennsylvania variation: Pa.R.E. 803(25): Defines party admissions as a hearsay exception. 2. Former Testimony - Pennsylvania variations: Pa.R.E. 804(b)(1) requires that the party against whom the evidence is offered had an adequate opportunity and similar motive to develop the testimony; In a pre-rule case, the Pennsylvania Superior Court held that, if former testimony is offered due to declarant's lack of memory, opposing counsel must be provided opportunity to cross-examine the declarant. It is not clear if the court would still follow this after the adoption of our rules. 3. Dying Declaration F.R.E. 804(b)(2): A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of the impending death is admissible only in a prosecution for homicide or in a civil action or proceeding. Pennsylvania variation: Pa.R.E. 804(b)(2): Admissible in all cases. 4. Statements for Purposes of Medical Diagnosis or Treatment F.R.E. 803(4): Statement made for purposes of diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment. Pennsylvania variation: Pa.R.E. 803(4): Statement must be made for purposes of medical treatment or medical diagnosis: Hypo: Pl in personal injury case hires doctor to diagnose solely for the purpose of giving testimony. Doctor testifies and gives his opinion. Part of the basis of his opinion is the medical history given to him by Pl. May Doctor recite the medical history given him by Pl.? Is it admissible for its truth? ________. The hearsay exception in Pa.R.E. 803(4) does not apply. 5. Recorded recollection F.R.E. 803(5): If witness is unable to remember all or part of the details of a transaction about which she once had personal knowledge, her own writing shown to be reliable may be admitted in place of her testimony. Pennsylvania variation: Pa.R.E. 803.1(3): 1) witness must testify and 2) be subject to cross-examination concerning the statement, and 3) verify that recording correctly reflects witness' knowledge. In exceptional circumstances, the offering party may show the exhibit to the jury. 6. Business Records F.R.E. 803(6): admits records of "acts, events, conditions, opinions, or diagnoses" made at or near the time by a person with knowledge if kept in the ordinary course of business and if it was part of the ordinary course of business to make the report unless circumstances indicate a lack of trustworthiness. PA variation: Pa.R.E. 803(6): Exception does not extend to "opinions or diagnoses." Also, Pennsylvania statutes preclude use of certain governmental records or reports in civil or criminal proceedings arising from the accident. (By statute, police reports are not admissible as evidence in any action arising out of a motor vehicle accident.) Hypo: Plaintiff offers a record from General Hospital. The custodian lays the proper foundation. The record contains descriptions of Plaintiff's symptoms. It also includes the doctors' diagnosis that Plaintiff suffered a negative reaction to Defendant's over-the-counter drug product. Which parts of the record are admissible? 7. Public Records and Reports PA has not adopted a hearsay exception like FRE 803(8). Admissibility of public records is governed by a number of statutes. Accident reports are excluded in most instances. 8. Ancient Document Rule F.R.E. 803(16) and 901(b)(8) allow an ancient document to be used to prove its contents if it is 20 or more years old, regular on its face, and found in a place of natural custody. Pennsylvania variation: Pa.R.E. 803(16) and 901(8) require that a document be THIRTY (30) years old to qualify as an ancient document. 9. By statute, Pennsylvania recognizes a "tender years" exception. It allows a child's out of court statements to be used if the child is under 12 if the court determines the statements have sufficient indicia of reliability and either the child testifies or the child is unavailable because by testifying the child would suffer serious emotional distress. 10. Pennsylvania does not recognize a catchall exception.

KIT CONTRACTS - CONTEST/UNI K

Contest/unilateral contract: Pennsylvania law follows the general rule that a contest promos er's declaration of the conditions and rules for awarding a prize constitutes a valid offer to enter into a contract. An offer can be accepted by performance of an act when the offer invites such an acceptance.

Evidence: Credibility Impeachment

D. Credibility and Impeachment 1. Prior statements of identification (used to bolster witness's testimony) F.R.E. 801(d)(1): A prior out-of-court statement of identification that was made by a witness who testifies at trial is excluded from the definition of hearsay and, therefore, may be admitted. Pa.R.E. 803.1(2): The rule extends to identification of either person or thing and witness must testify to making the prior identification. Hypo 1: Victor is mugged. Shortly thereafter, Victor, in the presence of Cop, picks Def out of a properly conducted lineup and identifies Def as the mugger. Six months later at the trial of Def, Victor makes an in-court identification of Def as the mugger. May Victor also testify that Victor picked Def out of a properly conducted lineup shortly after the mugging? Yes. This is admissible in Federal court or in a PA court. Hypo 2: Same case. Victor testifies but does not testify to the prior identification. Instead, Cop, who was present at the lineup, testifies that Victor picked out Def as the mugger. Admissible? __________ Prior identification is admissible only if _____________ testifies about the lineup identification. 2. Impeaching Your Adversary's Witness a) Pa.R.E. 607(b) provides: The credibility of a witness may be impeached by any evidence relevant to that issue, except as otherwise provided by statute or these Rules. Evidence: Five impeachment techniques are The basic five impeachment techniques are 1) Prior inconsistent statements: Pennsylvania variation. 2) Bias, interest or motive. PA and federal are the same. 3) Prior convictions: Pennsylvania variation. Character attacks: 4) Prior bad acts: Pennsylvania variation. 5) Bad reputation for truth or veracity: Pennsylvania variation. b) Prior Inconsistent Statements i) Prior statements are generally admissible only to impeach - not for their truth - not affirmative or substantive evidence. Pennsylvania law is the same as federal law on this point. ii) F.R.E. 801(d)(1): Prior inconsistent statement is admissible to prove the truth of matter asserted only if it was given under oath AND at a trial, hearing or other proceeding or in a deposition. Such a statement is admissible for its truth. Pa.R.E. 803.1(1): Admits more prior inconsistent statements substantively (for truth of the matter asserted) than federal law. The rule includes in the hearsay exception: A prior inconsistent statement is admissible for its truth if it was: 1) made under oath, at a trial, hearing or other proceeding or in a deposition (same as F.R.E.) 2) written, signed and adopted by the witness (Pennsylvania variation) or 3) a contemporaneous ___________________________________ of an oral statement by the witness (Pennsylvania variation). Hypo 1: Prosecutor calls Witness to testify that Def committed the crime. Instead, Witness testifies that Def didn't do it. Prosecutor may use a prior inconsistent written signed statement of the witness to impeach under either federal or Pennsylvania rules. Does such a statement come in for its truth? Only in Pennsylvania. Any difference if the prior inconsistent statement of the witness was given under oath before the grand jury that indicted Def? Admissible under federal as well as Pennsylvania rules. Hypo 2: What if the prior inconsistent statement is a tape recording of the witness's interview by the police? F.R.E.: not admissible for the truth of the matter asserted. Therefore can only use as non-hearsay to impeach. Pa.R.E. 803.1(1): __________________________________________________ Hypo 3: What if the prior inconsistent statement is the police officer's notes of the witness's interview by the police? __________________________________________________________ Under Pa.R.E. 803.1(1) it does not come into evidence. It is not a contemporaneous recording. It can only be used to impeach. iii) Extrinsic evidence is admissible to prove the prior inconsistent statement. iv) Foundation: What foundation is necessary before using extrinsic evidence? F.R.E. 613: "Witness must be afforded an opportunity to explain or deny the inconsistent statement." Pa.R.E. 613: Statement must be disclosed (if oral) or shown (if written) to witness during cross-examination, witness must be given opportunity to explain or deny the statement, and opposing party must be given opportunity to question the witness about the statement. Remember: Prior Inconsistent Statement of a party qualifies as an admission; compliance with Rule 613 not required. c) Prior Convictions can be used to impeach if the conviction is for proper kind of crime i) Convictions useable to impeach: F.R.E. 609 admits 1) Any crime (felony or misdemeanor) if it involves dishonesty (deceit) or false statement; court must admit (e.g., fraud, larceny by trick, embezzlement, perjury but not robbery or ordinary larceny because no deceit or false statement). 2) Other felonies punishable by more than one year admissible to impeach in the discretion of the Court; subject to balancing test (e.g., robbery, ordinary larceny, felony assault). No misdemeanors admissible to impeach if they do not involve deceit or false statement. 3) Juvenile adjudications are not normally admissible. PA variation: Pa.R.E. 609 admits only crimes of _______________________ (crimen falsi), and they are admissible regardless of prejudicial impact; the court does not balance. • Pennsylvania classifies more crimes as crimes of dishonesty or false statement than the federal courts. Pennsylvania courts have treated the following as crimes of dishonesty or false statement: perjury, bribery, tax evasion, burglary, criminal trespass, robbery, bribery, larceny, theft, receiving stolen property, unauthorized use of an auto, unauthorized use of a credit card, tax evasion, criminal trespass • The courts have held that the following are not crimes of dishonesty or false statement: assault, murder, rape, possession of drugs with intent to distribute, disorderly conduct, prostitution. • Juvenile adjudications can be admissible to impeach in criminal cases. ii) Extrinsic Evidence of Conviction: F.R.E. 609: Cross examiner inquires; can introduce extrinsic evidence if impeachment on cross is unsuccessful. Pennsylvania variation: Pa.R.E. 609 and PA statute: • If the witness is the criminal defendant, statute precludes inquiry on cross; proof is only by extrinsic evidence. • Ruling allowing impeachment is sufficient to preserve record for appeal; defendant need not testify to preserve issue. • Defendant does not waive issue if defendant brings out conviction on direct. d) Specific acts of deceit or lying not resulting in conviction F.R.E. 608(b): May inquire on cross examination, subject to Rule 403 balance. Pennsylvania variation: Pa.R.E. 608(b): Not allowed. No cross-examination concerning witness's prior bad acts even if probative of untruthful character. Hypo: Witness lied on an application for an insurance policy. Can you ask about the lie on cross-examination? Pa.R.E. 608(b) forbids this cross. e) Bad character for truth and veracity. F.R.E. 608(a): May impeach with reputation or opinion evidence. Pa.R.E. 608(a): Reputation only; no opinion evidence. Prior Bar Exam Questions: Testifying witness had prior convictions for robbery and for being drunk and disorderly. Robbery is crimen falsi and since within 10 years, that evidence as admissible without balancing. Drunk and disorderly conviction not admissible. Another witness had prior robbery conviction and had a reputation as a troublemaker. Robbery is admissible as crimen falsi. Reputation evidence was not admissible because being a troublemaker is not relevant as to credibility. PA does not allow cross exam on prior bad acts. No cross exam on un-convicted conduct. 3. Rehabilitation After Impeachment a) Good character for truthfulness may be shown if impeachment involved a character attack (prior conviction; act of deceit or lying; bad character for truth). Pennsylvania variation: Reputation only; no opinion evidence. b) Prior Consistent Statement to rebut an express or implied charge of recent fabrication or improper influence or motive. F.R.E. 801(d)(1)(B): Only permits to rebut claim of improper influence or motive or recent fabrication. Admits for truth of matter asserted. Pennsylvania variation: Pa.R.E. 613: • More opportunities to use prior consistent statements: A prior consistent statements is admissible to rehabilitate (1) where it predates the charged motive to lie; (2) where it predates the onset of the charged bad memory; or (3) where the witness has denied or explained a prior inconsistent statement and the consistent statement supports the witness's denial or explanation. • Timing: Statement must have been made pre-motive or must pre-date alleged on-set of faulty memory or support explanation or denial of prior inconsistent statement. • Prior consistent statements are not admissible for truth of the statement Only admissible to bolster in-court testimony (unlike federal rule). Hypo: Witness testifies for your client. On cross-examination, opposing counsel confronts Witness with a prior inconsistent statement. Witness explains that the statement was misunderstood. You offer to introduce a prior consistent statement made by Witness. Admissible? If so, for what purpose?

KIT CON LAW - DPC

Due Process Clause: State action; property interest.

KIT CON LAW - 1st Am: Est. Clause

First Amendment: A school mandate that students must read books that advocate a particular religion violates the Establishment Clause.

KIT CON LAW - 1st Am State Action

First Amendment: The absence of state action is a defense to the federal constitutional claim.

Ignorance or mistake.

Ignorance or mistake as to a matter of fact, for which there is reasonable explanation or excuse, is a defense if: (1) the ignorance or mistake negatives the intent, knowledge, belief, recklessness, or negligence required to establish a material element of the offense; or (2) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.

Manslaughter (Voluntary/Involuntary) Voluntary Manslaughter - Serious Provocation❗

In Pennsylvania, the crime of voluntary manslaughter, a first degree felony, is defined as the killing of another person without lawful justification, if at the time of the act, the individual is acting under a sudden and intense passion or under serious provocation. Under the law, an individual can be provoked by the person who was killed or another person (whom the individual sought to kill, but negligently or accidently killed another person instead). For example, a Philadelphia resident would be guilty of voluntary manslaughter under circumstances where he is enraged by the actions of a neighbor and either 1. shoots and kills the neighbor, or 2. shoots, misses and kills another person.

RPC 3.3 - Duty of Candor - perjured testimony

In a criminal case - if the lawyer knows that his client, the criminal defendant has or will at trial perjure himself → the lawyer must take remedial measures: 1. try to convince the client to correct the testimony or not lie, and 2. if the client won't → then the lawyer must seek permission to withdraw 3. if withdrawal will not correct the problem, the lawyer may have to disclose the problem to the court. The issue is based on whether a lawyer is 100% sure (or not) that the W will commit perjury L is not 100% sure, but reasonably believes testimony is or will be false Lawyer knows 100% for sure that the testimony is or will be false Any Witness including a Civil Client Lawyer may refuse to offer the testimony - see Rule 3.3 cmt 9 Lawyer must not offer the testimony and must take remedial measures → even where the testimony has already been offered Client is a Criminal Defendant Lawyer cannot prevent testimony of criminal defendant client if lawyer is not 100 % sure Lawyer must not offer the testimony and must take remedial measures → even where the testimony has already been offered Use the above chart to help you! See Rule 3.3 cmts 5, 6, 7, 9, 10 See also Rule 1.16

KIT CON LAW - 1st Am Public Forum

In a traditional public forum, the government may enforce reasonable time, place, and manner regulations as long as the restrictions are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

KIT - EMPLYT DISCRIMIN: Hostile work enviro determining factors

In determining whether an environment is hostile or abusive, a court looks at all of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.

Evidence: Character in Criminal Cases - Vi ctim Character

In homicide and assault cases, to establish self-defense, the accused may show the character of the victim as evidence that on the occasion in question the alleged victim was the first aggressor. In Pennsylvania, you can prove character by reputation (no opinion). PA has two differences from federal law: 1) The accused can introduce evidence of specific instances of victim's conduct, even if not known to the accused. (Pa.R.E. 404(a)(2) and 405(b).) 2) Prosecution can respond with evidence of accused's bad character for the same trait. pleads self-defense. Harvey claims that Victor attacked him with a broken beer bottle and that Harvey, in fear for his life, had to shoot Victor. i) May Harvey call a witness to testify that Victor had a bad reputation for violence? ______________ (But remember: No opinions) ii) If Harvey does attack Victor's character, may the prosecution respond by calling a witness to testify that Victor had a good reputation for peacefulness? ______________ (But remember: No opinions) iii) If Harvey does attack Victor's character, may the prosecution call a witness to testify that Harvey has a bad reputation for violence and that in the opinion of the witness Harvey is a violent person? Reputation Evidence - _____________ Opinion Evidence - Not in Pennsylvania. iv) Harvey calls Witness to testify that Witness had seen Victor use a broken beer bottle to grievously wound and almost kill three bar patrons in fights Victor started last year. Admissible? _______, under Pa.R.E. 405(b)(2). For what purpose? It is admissible to prove that

Plain View

In order for Plain View to be one of the ASCAPES (exceptions to warrantless search/seizure): officer must be legally in a position to observe in plain view

Insanity

M'Naghten rule - burden of proof on D to prove insanity by preponderance of the evidence

KIT CON LAW - P&I CLAUSE 3 PRONG TEST

Privileges and Immunities Clause: Three-prong test: (i) Does restriction burden one of the privileges and immunities protected under the clause? (ii) Does government have substantial reason for difference in treatment and are the nonresidents shown to be the peculiar source of the problem to be solved by the regulation? (iii) Does the discriminatory treatment bear a substantial relationship to government's objectives? First Amendment: Free Speech Clause. Public employees and independent contractors hired by the government are entitled to protection for speech that is a matter of public concern.

KIT CON LAW - 1ST AM RIGHT TO FREE SPEECH RE: GOV EMPLOYEES

The First Amendment right to free speech applies to government employees where speech involves a matter of public concern. A balancing test is used to balance employee interest in commenting vs. employer interest in promoting efficiency of public services. Factors to be considered include the disruption of office, time and place of comments, and the context of the speech.

KIT CON LAW - 14TH AM - DEPRIVATION OF PROPERTY OR LIBERTY W/OUT DP

The Fourteenth Amendment protects against the deprivation of property or liberty without due process. At-will employment does not establish a legitimate claim of continued employment to establish a property interest, but a 60-day notice provision supports existence of property right. A liberty interest exists where person is stigmatized in the course of dismissal from public employment

KIT CON LAW - Supremacy Clause

The Supremacy Clause of the Constitution invalidates state laws that interfere with or are contradictory to federal law. Preemption may be either express or implied, and is compelled whether Congress's command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.

Wills - Partial Revocation

by physical act may be shown by EE or inferred from nature of act

KIT CON LAW - 4TH AM SEARCH OF STUDENT LOCKER

must be reasonable under circumstances

Wills - 120-hour rule:

rule: To inherit from a decedent, you must survive the decedent by 120 hours (5 days). Otherwise you are treated as having predeceased.

Wills - Revocation

valid methods incl: 1. written instrument 2. physical act 3. operation of law

criminal conspiracy❗⭐

(1) enters into agrmt to cmt or aid an unlawful act w/ another (2) w/ a shared criminal intent and (3) an overt act in furtherance of conspiracy PA requires MPC approach - meaning a person may be convicted even if alleged co-conpirarotor is a member of protected class or an undercover PO feigning acceptance OVERT ACT: person not relieved of liability just bc not physically present when target crime cmtd DEFENSES: W/drawal: after conspiring to cmt crime, thwarted success of conspiracy, under circumstances manifesting a COMPLETE & VOLUNTARY RENUNCIATION of his criminal intent

Duress

(a) General rule.--It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist. (b) Exception.--The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.

Wills: Simultaneous Death Act

(enacted in most states): When passage of title to property depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, absent a will provision to the contrary, the property of each passes as though he survived. Wills: As though testator survived; as though beneficiary predeceased. Insurance: As though insured survived; as though beneficiary predeceased. Intestacy: (see hypo 28, below) Joint tenancy with right of survivorship: One-half as though tenant A survived, one-half as though tenant B survived. The point: simultaneous death prevents operation of right of

Wills - Revocation by Op of Law

1. Marriage 2. Pretermitted Children 3. Divorce

DUI: Ignition Interlock

1. Motorists who commit a DUI violation within 10 years of a prior offense must have their vehicles equipped with an ignition interlock, a breath testing device connected to the ignition system that will not let the vehicle be operated if the motorist has a BAC of at least . 2. Operating a non-interlock installed vehicle or doing so with a BAC in excess of .025% or with any amount of a prohibited controlled substance in one's system, or tampering with an interlock are criminal violations carrying terms of imprisonment and fines. Note: acceptance of ARD is a prior off and will subject interlock - exemptions: economic exemptions if have more than 1 vehicle can apply to PENNDOT to have interlock placed on only 1 but you're restricted to driving on the interlock vehicle -employee exception, written permission slip to allow employee to op a non-interlock equipped employment vehicle only during scope of employment. - someone subject to interlock must maintain interlock restrictive license for period of 1yr vio free before they get their reg, class C returned to them!

Hearsay: prior statements

1. Prior Statements of the Witness Remember: A witness's own prior statement can be hearsay. Prior Statements of a Witness Which Are Not Hearsay: These statements are admitted for their truth and fit the basic definition of hearsay. Federal Rules: These statements are not hearsay (F.R.E. 801(d)(1)) 📌🔑🛎PA variation: Pennsylvania rules do not define these statements as non-hearsay. PA rules admit some of them under exceptions to the hearsay rule. a) Prior Inconsistent Statements: covered earlier b) Prior Consistent Statements: covered earlier c) Prior statement of identification made by a witness: covered earlier

DEFENSES TO TRESPASS❗

1. Property or bldg was abandoned 2. premies were open to members of public @ time of offense and actor complied w/ all lawful conditions imposed on access and 3. actor RB owner of premises or whoever empowered to pmt access would have pmtd entrance or remain

PA - 3 throw in crimes ❗

1. REP: Recklessly Endangering Another Person: bc acted recklessly and put another in danger 2. RSP: goes with Theft by unlawful taking 3. CRIMINAL TRESPASS - goes w/ burglary -cmt when knowing not licensed to be inside and gains access when knowing not licensed to be inside bldg and remains or breaks into bldg

Taxes - 4 Basic Realizations

1. Realization: The increased or decreased value of an asset is not taken into account fortax purposes until it is realized through the sale or other disposition of the asset. 2.Non-cash Receipts:Gross income includes the fair market value of any property received and the fair market value of any services received. HYPO 1: The law firm of Smart, Smarter & Smartest gives a pair of football tickets for the next season to the summer associate who billed the most hours. Will the lucky associate have to report any gross income? yes, whatever the FMV of those tickets will be included in that assoc gross income bc its asset receoved in return for services 3.Claim of Right RULE: Property or funds received under a claim of right must be reported for tax purposes even though the taxpayer may later be required to return the property, funds or their equivalent. Definition: The taxpayer has received property or funds under a "claim of right" when they are received without restriction as to use or disposition. HYPO 2: A. A composer sues Lady Gaga demanding royalties for one of Lady Gaga's hit songs that she claims to have written. After trial in year 1, the Court orders that royalties be paid to the plaintiff. Royalties are paid to the plaintiff in year 1 in accordance with the court order. Lady Gaga plans to appeal the trial court's decision. Must the plaintiff report the royalty as part of her gross income in year 1? yes, she has the right. when they get it its the right to the income. rule is that property or funds received under the claim of rights must be rpted for tax purposes even though tax payer may be required to return it due to an appeal B.What tax consequences if the trial court decision is reversed in year 2 and the plaintiff is required to repay the royalties that she received in year 1? she would be able to take a deduction in yr 2 C. The winner of American Idol was offered employment as a host for the next installment of the hit T.V. phenomenon. She received a $500,000 salary advance when she signed the contract in year 1. Under the contract, she was required to repay one-half of the advance in the event that she left the program within the first six months of year 2. Must the winner report the entire salary as gross income in year 1?yes, she received all the cash, it all goes in to year 1 and if she were to leave in year 2 and have to pay back - she can then take a deduction D. What tax consequences if she leaves the program in March of year 2? see above Compare: Stolen, embezzled, or otherwise illegally acquired income are considered taxable income. 4. Tax Benefit Rule NOTE: Underlying assumption: that the taxpayer received a tax benefit, i.e. reduced his tax liability as a result of the year 1 deduction RULE: If a taxpayer takes a deduction in one year and recovers the property that gave rise to the deduction in a later tax year, the taxpayer has tax benefit income, to the extent that the earlier deduction provided a tax savings or a tax benefit. HYPO 3: A. In year 1, Peyton Manning donated property valued at $150,000 to a qualified charity that he founded. Assume that he properly took a $150,000 charitable contributions deduction on his year 1 tax return. Unable to use the property, the charity returns it to Manning in year 2 when the property is worth $200,000. Does Manning have income in year 2 from the return of this property? yes, got back - act = 150k (even though worth 200k... last yr took deduction so benefit rcvd was deduction) C. Your employer over withheld on your state and local income taxes for year 1. You properly take an itemized deduction on your year 1 federal income tax return for all of the state and local taxes withheld. You plan to file a state tax return in year 2 seeking a refund for the state and local taxes overpaid.Will you have taxable income from receipt of the state and local refund in year 2? here, took too much out so incl. in gross income NOTE: Underlying assumption: that the taxpayer received a tax benefit, i.e. reduced his tax liability as a result of the year 1 deduction D. What if you receive a refund of over withheld federal income tax? state/local = deductible fed = nondeductible

Wills - INTESTACY

1. SS only = SS (all) 2. SS & Parents = SS: first $30,000 + 1/2 of intestate est. Parents: balance 3. SS & issue decedent & SS SS: first $30,000 + 1/2 of intestate est. Issue: balance of est 4. SS & issue of decedent, one or more of whom not SS issue = SS: 1/2 of the intestate estate and Decedent's Issue: est. balance 5. No SS In the following order: • Issue. • Parents. • Siblings or their issue. • Grandparents. • Uncles, aunts or their issue. • The Commonwealth. Share of others: to decedent's liberal descendants (issue) per stripes if not all in same degree or per capita when all takers in equal degree of r-ship to decedent - if no surviving issue, to parents equally if both alive or to surviving paren if only 1 if no issue or parents then to issue of decedent's parents - brothers and sisters of decedent or their issue

Inchoate Offenses (SAC)

1. Solicitation ❗⭐2. Conspiracy 3. Attempt 1. Solicitation - defense if you tried to prevent the crime ❗⭐2. Conspiracy - automatically 2 crimes: 1. crime itself and 2. crime to cmt crime

Evidence: The Husband-Wife Spousal Privileges

1. Spousal incompetency arises when two parties are joined in legally valid marriage. The test is not whether the parties believe they are married, but whether they are, in fact, legally married. Burden of proving the validity of the marriage is on the objecting party. 2. Dual Privileges: There are two spousal privileges with different rationales. a) Confidential Marital Communications Privilege - 42 Pa.C.S. §5914 and §5923 b) Spousal Competency Privilege - 42 Pa.C.S. §5913 and §5924 3. Neither applies to intra-family injury case: assault of spouse or child, incest, child abuse 4. Confidential Marital Communications Privilege a) Definition: A husband or a wife shall not be required or, without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage. Assume Pennsylvania and federal are the same (applies in civil and criminal cases, must be waived by both). b) As long as the communication is between spouses in a confidential setting, neither can disclose the communication. c) This privilege remains following divorce or the death of one spouse. December 2013 Case: Pennsylvania Supreme Court held that this privilege applies only to "communications." At a trial for murder, defendant's wife testified, over her husband's objection, about her observations of her husband's conduct. Since the conduct did not convey any confidential message, and since it could not be construed as a "communication," this privilege did not apply. [Comm v. Mattison]

Driver License Compact

1. Under the Compact, when a Pennsylvania licensed driver is convicted of DUI in a member state, Pennsylvania will treat the offense as if the person were convicted in this state of driving with a BAC of at least .08% but not greater than .10%. a. The out-of-state DUI will be considered a prior offense for purposes of sentencing and imposing an operating privilege suspension for a subsequent DUI and/or chemical test refusal.

Evidence: Character in Criminal

1.What Method or Technique to Prove Character? BIG DISTINCTION IN PA: a)Specific acts of conduct - only rarely under both federal and PA rules. b)Opinion. (ONLY ADMISSIBLE IN FED CT NOT PA) F.R.E. 405: Opinion is admissible to prove character. Pa.R.E. 405: Opinion evidence is NOT admissible to prove character evidence in PA c)Reputation evidence is allowed under both federal and PA rules In Pennsylvania: Character witness can testify, "Joan is known as a peaceable person," (reputation) but cannot testify, "I know Joan to be a peaceable person." (opinion). (not admissible in PA)

Evidence in Civil

2. Character in Civil Cases - F.R.E. 404: Character evidence is not admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event. special distinction for assault & battery (civil) Pa.R.E. 404(a)(2)(iii): Same rule for most civil cases. However, under the PA Rules, in civil cases character evidence is permitted for: civil assault and battery cases In all other civil cases, the PA rule is the same as the federal rule. Hypo: Pl sues Dan for personal injury damages alleging negligence arising out of an automobile accident. PA rule is same as federal. Pl offers a witness to testify that Dan has a reputation in the community for recklessness. Not admissible. Hypo: Pl seeks to testify that he has been driving for 40 years without ever being previously involved in an accident? NOT ADMISSIBLE IN EITHER PA OR FED CT 📌🔑🛎PA variation: Pl sues Def (NOT CRIMINAL - BC NOT AGAINST COMMONWEALTH) alleging assault and battery. Def claims that Pl was the first aggressor. Def offers a witness to testify that Pl has a reputation in the community for aggressiveness -- (NOW THIS IS ADMISSIBLE, ADMISSIBLE TO PROVE PL ACTED IN ACCORDANCE W/ PL'S VIOLENT CHARACTER & THEREFORE PL WAS FIRST AGGRESSOR SO PL CAN INTRODUCE TO ATTEMPT TO PROVE THAT PL WAS 1ST AGGRESSOR BC PL HAS REP IN COMMUNITY FOR AGGRESSIVENESS

Evidence: Pennsylvania psychotherapist-patient privilege

2. Pennsylvania psychotherapist-patient privilege a) Extends to psychologists and psychiatrists b) Provides as much protection as attorney-client privilege c) Unlike federal common law, does not extend to social worker-patient communication

Employment Discrimination👨‍🌾👩‍🍳👩‍✈️

3 Types: 1. Title VII Civil Rights 1964 (Race, color, sex, religion, and natl origin) 2. ADA (persons over 40) discriminated against in favor of someone younger 3. ADEA: qualified individuals discriminated against on the basis of disability Summ of D: Title VII: Persons w/ over 15 employees ADEA: Persons w/ over 20 employees Types of claims available: 1. Title VII and ADA: Single motive & mixed motive 2. ADEA: only single motive claims Single motive claim: 1. Pl proves prima facie case: - this is established by alleging pl was : 📌PRIMA FACIE CASE 1. member of a protected class, (race, religion, age, etc., 2. applied for an open position (does not apply to a termination case) 3. is qualified for position (or in a termination case, was performing satisfactorily); and 4. suffered adverse employment action (was fired, demoted, rejected, transferred) ✅ ❗(must prove by preponderance of the evidence) 2. D/employer articulates a legitimate non-discriminatory reason (LNDR) for the adverse employment action. 3. P/employee proves pretext (membership in the protected class was a determinative factor in decision) i.e. employer's stated reasons are really just an excuse or cover-up for unlawful acts of discrimination. BURDEN SHIFTING Summary of Procedural Requirements 1. File charge w/ the PHRC (180 days) 2. File charge w/ EEOC (300 or 30 days_ or indicate want to cross file w/ PHRC 3. get right to sue or notice of dismissal ltr (must wait 180 days) 4. file in ct (90 days)

Evidence: Pennsylvania doctor-patient privilege

3. Pennsylvania doctor-patient privilege a) Less protective than psychotherapist-patient privilege; therefore, use only when professional is a medical doctor, but not a psychiatrist b) Information must "tend to blacken the character of the patient" Courts read this very narrowly. Must be a loathsome disease. (Alcoholism is not something that would blacken the character of the patient) c) Does not apply in criminal cases d) Privilege has numerous exceptions: Patient Litigant Exception (privilege is waived if patient sues or defends by putting physical or mental condition in issue). Does not apply: when reporting disabilities affecting ability to drive; to information offered in child abuse proceedings; to reports concerning injuries due to deadly weapons; or in proceedings for mental health commitment.

KIT -EMPLYT DISCRIMIN. - Title VII Retaliation PFC

4'he elements of a prima facie case of retaliation under Title VII may be established with direct or indirect proof. Assuming that there is no direct proof of retaliation, the elements of indirect proof are: (i) protected activity; (ii) the employer took action that a reasonable employee or job applicant would find to be materially adverse in that it may have dissuaded a reasonable employee from making or supporting a charge of discrimination; and (iii) there is a causal connection between the protected activity and the adverse action. Certain "thirdparty reprisals" are prohibited actions if a reasonable employee might be dissuaded from engaging in protected activity if she knew her fiancé would be fired as a result thereof.

SILA - US Const. & PA

4TH Am & Art. I, Section 8 of PA Const. protect individuals from unreasonable searches and seizures. Under both, a warrantless search and seizure is unreasonable and therefore prohibited except for few exceptions. SILA (AFTER ARREST)➡ 4TH AM (PERMISSIBLE): 🔹In a 🚗 or JUST in a 🚙 Incident to lawful arrest 🚔🚨👮 can search passenger compartment (incls. back seat of car AND contents of any containers found) if: 🔹 🚔🚨👮have RB passenger compartment/back seat, etc. contains evid of crime just arrested (same type); OR 🔹D unsecured and could gain access to passenger compartment (Az v. Gant) VS. ART I SECTION 8 PA ➡ greater protection ay be provided under PA ocnst 🔻 SILA: a lawful arrest not justification for search of all prop belonging to arrestee,PA SILA = lmtd search incident to lawful arrest to the persona nd immediate area occupied by the person during custody, to

KIT CON LAW - 4th AM S&S - Randon Drug Test

4th am -- Constitutes a search . "Special need" requirements. Fourteenth Amendment: Due Process Clause. Elements of a liberty interest claim (publication and falsity requirements).

Evidence: Spousal Competency Privilege

5. Spousal Competency Privilege a) Definition. One spouse cannot be forced to give adverse testimony against the other. Fraud Exception: Spouses cannot rely on this privilege where its application would assist them in committing a fraud. b) Civil cases: No federal privilege (Federal privilege applies only in criminal cases). Pennsylvania variation: By statute, one spouse is incompetent to testify against the other unless both waive the privilege (with some exceptions). c) Criminal Cases: PA is same as federal: Competency may be waived by the testifying spouse. BUT - a spouse cannot be forced to give adverse testimony against the other in a criminal case. Exceptions: Proceedings involving spousal or child abuse, rape, murder, involuntary deviate sexual intercourse. d) This spousal immunity privilege only lasts during the marriage. It is terminated by divorce. Hypo: Harvey kills Victor in public in front of hundreds. Included among eyewitnesses is wife Madge. Can Madge be forced to testify against Harvey when he is charged with murder? No. The spousal immunity privilege allows her to choose not to testify. She can choose to testify, but cannot be forced. Same as under the federal rules. Pennsylvania Variation Hypo: Harry and Wanda are married. Harry is sued civilly for killing the victim. Plaintiff wants to call Wanda, who wants to testify. Can she?

Rules of Professional Conduct (RPC) - Confidentiality R. 1.6

A lawyer CANNOT disclose confidential client information, unless, 1. the client gives informed consent, or 2. the disclosure is impliedly authorized to carry out the representation. (stated in the positive, the lawyer can disclose, but only if 1 or 2). (b) A lawyer MAY, disclose confidential info if the lawyer has a reasonable belief that disclosure is necessary to: 1. prevent reasonable certain death/substantial bod harm, or 2. prevent a crime or fraud connected w/ the use of the lawyer's services, or . ☼ Remember: Under exceptions 2 and 3 → use of the lawyer's services must be connected to the crime or fraud ☼ Remember, the lawyer must protect a current, former, or a prospective client's confidential information - That is the purpose behind these rules! Also Please Remember → a lawyer shall not disclose past crimes, but MAY (not MUST) disclose future crimes → if the lawyer has a reasonable belief that the future crime will occur (NO DUTY)

KIT -EMPLYT DISCRIMIN. ADA - NECESSARY ELEMENTS FOR PFC - PLS

A necessary element of a prima facie case of discrimination under the ADA is that the plaintiff has a physical or mental impairment that substantially limits one or more of the major life activities of such individual. Temporary, nonchronic impairments of short duration fall short of substantially limiting an individual in a major life activity

Terroristic Treats (7 EXAMS)❗

A person cmts crime of TT if communicates, either dir or indirectly, a threat to: 1. cmt any crime of vio w/ intent to terrorize another 2. cause evaluation or a bldng, place of assembly, or facility❗ of public transp, (not verbal threat - could be sending white powder in envelope judge thinks is anthrax and they evacuate!) or 3. cause serious public inconvenience or terror w/ RD of the risk causing such terror or inconvenience

KIT -EMPLYT DISCRIMIN.- Title VII—retaliation: PFC

A prima facie case of retaliation requires proof that the plaintiff was engaged in an activity protected by Title VII, the defendants subsequently took action adverse to him, and a causal connection existed between the protected activity and the action

Evidence: Privileges - atty-client

A. Attorney-Client Federal privilege: common law developed under F.R.E. 501. Pennsylvania: BY STATUTE, not a rule. But parameters of privilege are basically same as federal: Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client. Exceptions are the same. Pennsylvania does not have equivalent of FRE 502 on question of waiver.

Evidence: WITNESSES AND TESTIMONIAL EVIDENCE - Competency

A. Competency: 1. F.R.E. 601: Abolishes grounds for incompetency other than those specified in the rules (jurors and judges; state grounds in civil actions governed by state law). Pa.R.E. 601 retains restrictions that are not expressed in the Federal Rules of Evidence (perception, communication, memory, sincerity/truthfulness). PA.R.E. 601. Competency The rule provides as a general rule that every person is competent to be a witness except as otherwise provided by statute or in these Rules. The rule goes on to specify four defects that may make a person incompetent to testify. [C-O-M-P is the pneumonic.] A person is incompetent if the Court finds that because of a mental condition or immaturity the person suffers from weakness in: Communication: cannot communicate adequately (is unable to express himself or herself so as to be understood either directly or through an interpreter); Obligation to tell the truth: witness does not sufficiently understand the obligation to tell the truth; Memory: has an impaired memory; or Perception: is, or was, at any relevant time, incapable of perceiving accurately.

Will requirements

A. T must be 18 or over B. T must sign will .(any mark-initials, "X" will serve as signature if so intended. Signature may be by another person at T's direction, in T's presence.) C. at its logical (i.e., sequential) END D. Two attesting witnesses who witness T's signing . (Required ONLY when T signs will by mark or someone signs for T) E. The will must dispose of property, nominate a personal representative, or revoke or modify another will. [PBQ]

Choice of Law methodology (PA) Hybrid approach

A. Two varieties of conflicts 1. Conflicts between State and Federal Law: Governed by the Erie Doctrine and the Supremacy Clause 2. Conflicts between State Laws: Governed by Choice of Law Methodologies(First Restatement, Governmental Interest Analysis and SecondRestatement). *Resolve conflicts between state laws by reference to the choice of law approach of the jurisdiction where the forum court is situated. 3 types 1. restatement first of COL / territorial / vested approach: where parties right to sue vested. (focuses on events what happens where) - 3 step oricess 1. first look at legal issue and characterize (torts/ property/Ks?) 2. particular choice of law rule that goes along - i.e. torts? looks towards juris where accident occurred 3. then localize rule by applying facts - law where accident occurred governs, one must determine where accient actially occurred under case facts -lex loci -K formation/ validity - apply law of place where K made -property: situs rule, apply law in juris where property located 2. GOVERNMENTAL INTEREST ANALYSIS - (what are the policies / what are the trying to achieve) - starts w/ forum default - that forum law will govern unless someone argues that another's juris law will provide the governing principles. -@ that pt we look at the laws and we try to ID what are they trying to achieve what are the policies behind the laws in forum and competing juris and evaulate them in light of the facts - we have a law thats implicated in the case (i.e. law that wants to protect lenders, etc.) then state has an interest in applying and other doesnt (then the other state has a false conflict) and we apply the law of the other state Ex. DE law guest statute - says guest in MVA accident says cant collect in accident to prevent collusion trying to protect insurance co. PA doesnt have that bar to suit, no guest statute, allows full tort liability. whats DE trying to do? protect ins companies. is tht implciating 3. RESTATEMENT SECOND - 1. section 6: -- list of factors, focused on op of justice system. in doing choice of law you should consider: (i) the needs of the interstate and international systems; (ii) the relevant policies of the forum; (iii) the relevant policies of other interested states including their interests in having their law applied to the particular issue; (iv) the protection of party expectations; (v) the basic policies underlying the particular field of law; (vi) the objectives of certainty, predictability, and uniformity of result; and (vii) the ease of determining and applying the law previously identified as applicable. (INVITES YOU TO ENGAGE IN GOV INTERESTS ANALYSIS) 2. notion of connecting factors (contacts); and (i) the place where the injury occurred; (ii) the place where the conduct causing the injury occurred; (iii) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (iv) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance to the particular issue. 3. idea of identifying jurisdiction w/ most significant r-ship to legal issue in dispute PA APPROACH - HYBRID APPROACH: combining Gov analysis w/ Restatement 2nd goal: Identify the jurisdiction w/ the greatest interest in applying its law 1. governmental interest 2. BAR STRATEGY: ID ISSUE AS COL ISSUE: - Explain PA Hybrid approach (gov/ restatment 2nd) 1. govenemrnt interests anaysls (if have false cnflict, apply law of the interested state bc that would be the juris w/ greatest interest in applying its law

Taxes - ALLOCATIONS

ALLOCATION OF INCOME -- TO WHOM IS IT INCOME? RULE 1: Income must be taxed to he or she who earns it. This is sometimes referred to as the "assignment of income" rule. Supreme Court has stated that "fruit cannot be attribute to different tree than that from which it grows. RULE 2: Income from property (investment income) is taxed to he or she who owns the property.

KIT -EMPLYT DISCRIMIN. ADA - PFC

ADA: To establish a prima facie case of discrimination under the ADA, a plaintiff must demonstrate that (i) he is a disabled person within the meaning of the ADA; (ii) he is otherwise qualified to perform the essential functions of the job; and (iii) he has suffered an otherwise adverse employment decision as a result of the discrimination. Under the ADA, disabilities must be evaluated based on whether an impairment substantially limits the "major life activities of such individual." The duty to accommodate also includes consideration of reassignment of an employee to an appropriate position if available.

KIT - EMPLYT DISCRIMIN. ADA PFC

ADA: To succeed in a claim of discrimination under the Americans with Disabilities Act the plaintiff must be able to establish that she could perform the essential functions of her position with reasonable accommodation

Conflict of Law analysis

ADD Hybrid approach

KIT -EMPLYT DISCRIMIN. ADEA - PFC

ADEA: A prima facie case under the ADEA is established when the plaintiff demonstrates that at the time he was terminated he was in a protected class (at least 40 years old), he was. otherwise qualified for his job, he was discharged, and his employer hired a substantially younger person for his position.

KIT -EMPLYT DISCRIMIN. ADEA - Exception BFOQ

ADEA: An exception exists where age is a bona fide occupational qualification ("BFOQ") reasonably necessary to the normal operation of the particular business. To establish a valid BFOQ defense, an employer must show that (i)'a requirement is reasonably necessary to the essence of its business, and (ii) it has reasonable cause for believing that all or substantially all persons within the class would be unable to safely and efficiently perform the duties of the job. Customer preference may be taken into account only when it is based on the company's inability to perform the primary function or service it offers.

KIT - EMPLYT DISCRIMIN. ADEA (AGE) if PFC est., Burden shifting

ADEA: If a prima facie case of age discrimination is established, the burden of production shifts tothe defendant to offer a legitimate nondiscriminatory reason for the adverse employment action. If the defendant produces such a reason, the plaintiff must prove that the defendant's proffered reasons were not the true reasons for its actions but a pretext for discrimination.

KIT -EMPLYT DISCRIMIN. ADEA - facially discrim policy

ADEA: Reliance on a facially discriminatory policy requiring adverse treatment of employees who are 40 years of age establishes a prima facie claim of disparate treatment under the" ADEA by providing direct evidence of discriminatory intent.

KIT - EMPLYT DISCRIMIN. ADEA (AGE) PFC

ADEA: To establish a prima faciecase of age discrimination, a plaintiff must show that: (i) she was within the age group protected by the ADEA; (ii) she was discharged or demoted; (iii) at the time of her discharge, she was qualified for the position or performing her job at a level that met her employer's legitimate expectations; and (iv) following her discharge, she was replaced by someone sufficiently younger to permit an inference of discrimination.

KIT -EMPLYT DISCRIMIN. ADEA - BURDEN SHIFTING

ADEA—shifting burden: Once the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the defendant who must offer a legitimate, nondiscriminatory reason for the challenged employment action. If the defendant satisfies this burden, the presumption of discrimination disappears, and the plaintiff must then prove that the defendant's proffered reasons were not the true reasons but instead a pretext for discrimination. The plaintiff has the ultimate burden of proving that age is the real reason for the adverse employment action.

DUI: Controlled Substance and Drug Offenses

ANY AMT of a Schedule 1; Schedule II or III; or Metabolite of ANY Ctrld substance- what remains of a ctrld substance after body has broken down.... LOOK IP - NO REQUIREMENT FOR CMWLTH TO SHOW IMPAIRMENT ZERO TOLERANCE STATUTE

Demshock - Exigency Factors

Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment. Payton. In determining whether exigent circumstances exist, a number of factors are to be considered. Among the factors to be considered are: (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is on premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at nt. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified. 8. hot pursuit of fleeing felon 9. whether there is evidence that will be destoryed if PO take time to obtain warrant 10. whether ther eis danger to PO or tother person inside or outside dwelling to reqire immediate and swift action

KIT KS &SALES: ACCORD & SATISFACTION

Accord and satisfaction: An accord is an agreement in which one party to an existing contract agrees to accept, in lieu of the performance that she is supposed to receive from the other party to the existing contract, some other, different performance. An accord is a contract and must be supported by consideration. The accord, taken alone, will not discharge the prior contract. It merely suspends the right to enforce it in accordance with the terms of the accord contract. Only actual performance of the accord (satisfaction) can discharge the original duty. If the debtor breaches an accord agreement, the creditor may sue either on the original undischarged contract or for breach of the accord agreement.

KIT CONTRACTS - ACCORD & SATISFACTION

Accord and satisfaction: Elements necessary to establish the existence of an accord are the same as those required to show the existence of a contract. Original obligation is not discharged if the accord is not satisfied by performance.

Taxes - Alimony & Child Support

Alimony: Income to recipient (must be declared as income) deductible to payer (entitled to deduction, which is an "above the line" deduction auth under sect 62 of IRC) so long as: - CASH payments - rcvd by spouse OR former spouse pursuant to a divorce /separation agrmt - agrmt DOES NOT designate such payment as a payment which is not incluble in GI and not allowable as a deduction under sect 215 - if separated or divorced CANNOT live in same HH @ time of payments; AND - cease @ death Child Support: payments of CS are neither income or deductible

KIT - EMPLYT DISCRIMIN: Hostile work enviro - employer defense

An employer can defend against an action based on a hostile work environment by showing (i) that the employer had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (ii) that the plaintiff employee unreasonably failed to take advantage of the corrective opportunities offered by the employer

KIT CONTRACTS - IMPLIED IN FACT K

An implied-in-fact contract is one where the parties assent to the obligations to be incurred, but instead of being expressed in words, the parties' assent or intent to contract may be inferred wholly or partly from their conduct. Pennsylvania law generally will imply a promise to pay for valuable services rendered with the knowledge and approval of a recipient.

KIT CONTRACTS - ANTICIPATORY REPUDIATION

Anticipatory repudiation: To constitute anticipatory breach under Pennsylvania law there must be an absolute and unequivocal refusal to perform or a distinct and positive statement of an inability to do so.

Wills - Dependent Relative Revocation (DRR)(2nd best evidence doctrine) bc T rarely gets what he wants)

Applies when T revokes will (expressly or by physical act) upon mistaken belief of law or fact that another disposition of his prop would be effective. upon failure of the other disposition, the rev is set aside and the OG will remind in force. DRR ANALYSIS: 1. Did T REVOKE will or a provision in a will? - no? DRR doesn't apply 2. Yes --> Did T make a mistake as to law or fact? - no? DRR does not apply 3. Yes ---> if T was told of mistake would T prefer to retract revocation (meaning codicil retracted go to OG will) over result that would otherwise pertain? - NO? wouldn't prefer to retract, DRR doesn't apply - YES? DRR applies ** not applying DRR gets intestacy DRR application re: T's OG gift: 1) Disregard a revocation (the cancellation of the $10,000 bequest). 2) BC it was based on a mistake of law (that the interlineation would be effective). 3) Provided the ct thinks T would not have revoked the $10,000 bequest but for the mistake.

KIT CON LA W- ART. 3 STANDING

Article III of the Constitution requires that a plaintiff have standing to assert a claim in order to satisfy the case or controversy requirement. Standing requires an injury to the plaintiff fairly traceable to the defendant's conduct. An organization may have standing to sue on behalf of its members if the members would have standing, the interests it seeks to protect are germane to its purpose, and neither the claim or relief requested requires participation of individual members.

PA DEPARTS FROM FED RULE

B. MIRANDA 1. PA DEPARTS FROM FEDERAL RULE a. Waiver i. Federal rule: Explicit waiver not required ii. PA RULE: Waiver of Miranda rights MUST be explicit in order to be effective 1) "Explicit" = a nod, a writing, etc. b. Silence to impeach credibility i. Federal rule: Silence at time of arrest can be used to impeach D's trial testimony ii. PA RULE: D's silence at time of arrest MAY NOT be used to impeach (assuming not implicated by amendment to Article I, Section 9). 1) Post-amendment: D's "statements" can be used to impeach, but silence most likely cannot be used. D. DOUBLE JEOPARDY 1. PA DEPARTS FROM FEDERAL RULE a. Prosecutorial bad faith i. Federal rule: No retrial ONLY when prosecutorial misconduct was intended to provoke D into moving for a mistrial ii. PA RULE: No retrial when prosecutorial misconduct: 1. Intended to provoke D into moving for a mistrial, OR 2. Intentionally undertaken to prejudice D to the point where a fair trial is denied

Evidence: The Physician/Psychiatrist/Psychotherapist Patient Privilege

B. The Physician/Psychiatrist/Psychotherapist Patient Privilege 1. Definition The patient has a privilege against disclosure of confidential information acquired by the physician/psychiatrist/psychotherapist in a professional relationship entered into for the purpose of obtaining treatment. Pennsylvania's privilege is found in two statutes, one that applies to physicians (which includes psychiatrists) and one that applies to psychologists and psychiatrists.

DUI: BAC level exceptions

BAC LEVELS Adults: .08 Minors/JVs (under 21): .02 School Bus Drivers: .02 Commercial Vehicles: .04

DUI: Blood Testing & Implied Consent

Blood Testing & Implied Consent law: - bc USSC (Birchfield) held- PO must obtain a search warrant where motorists do not voluntarily consent to test, Warnings that a refusal of blood test will result in enhanced penalties have been deemed an unlawful coercive way to obtain consent to otherwise unconst warrantless search - Although, PA law specifically requires that PO tell motorists as part of the implied consent law that refusal will result in stiffer crim penalties, ---PENNDOT has removed that particular warning from that Implied Consent Law Where a motorist who has consented to a warrantless blood test seeks to suppress the results of that test, the trial court must determine what a reasonable person would have done under the totality of the circumstances, taking into account the person's maturity, sophistication and mental or emotional state. A hospital must draw blood, without first obtaining the motorist's consent, submit the sample to an approved laboratory within 24 hours and provide the BAC results upon request to police, other government personnel, the driver, or his attorney or physician, where the motorist requires emergency room treatment as the result of a motor vehicle accident and exists to believe the motorist was DUI. t

DUI / con law / art 1 section 8 (4th am)

Boseman v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, --- A.3d ----, 2017 WL 1033770 (Pa. Commw. Ct. March 17, 2017): per Simpson, J., the court held that the rule of Birchfield v. North Dakota (U.S. 2016), that an individual may not be criminally prosecuted for refusing a request for a warrantless blood test following a DUI arrest, does not apply to a civil license suspension.

Taxes (KIT)

Income that a decent became entitled to during life but not received until after death is not income in the final personal income tax return for a cash basis taxpayer BUT, rather is income in respect of a decedent and must be reported as such by her estate

Wills - undue burden

Burden of proof is on contestants, who must show: [PBQ3] 1) Existence and exertion of the influence. 2) Effect is to overpower the mind and will of the testator. 3) The result is a will that would not have been executed but for the influence. Influence is not undue unless the free agency of the testator was destroyed and a will was produced that expresses the will, not of the testator, but of the one exerting the influence. While evidence of undue influence is usually circumstantial, these alone are not enough: 1) Mere opportunity to exert influence. 2) Mere susceptibility to influence due to illness, age. Such evidence does not (by itself) establish that T's mind was in fact subverted and overpowered. 3) Mere fact of "unnatural disposition" -- that some children take less than others or are excluded entirely. It is only where all reasonable explanation for the devise is lacking that the trier of facts may take this circumstance as a badge of undue influence. Undue influence may be shown as to the entire will, or as to one gift in the will. In most states, a presumption of undue influence arises upon a showing that a principal beneficiary under the will who stands in a confidential relationship to the testator (attorney-priestparishioner, doctor-patient) draws or procures the execution of the will. [PBQ3]

Evidence: Lay opinion Testimony

C. Lay Opinion Testimony Pa.R.E. 701 is identical to Fed.R.E. 701. In PA, with a proper foundation (experienced driver who observed vehicle long enough to estimate speed), a lay witness can testify about the speed of a moving vehicle. Hypo: Pl sues Def for injury resulting from Def's negligence. Pl's injury is an extra hole in her head. Gray's Anatomy states on page 219 that an extra hole in the head is not healthy. If Def's expert testifies that the hole is not harmful, can Pl impeach the expert with Gray's? Yes. Pennsylvania variation: Can Pl then Introduce Gray's to establish that the hole is harmful? ____________________________________________________________________________________ Prior Bar Exam Question: Pl alleges a taking of property. One sub-issue in the question was whether the owner of the property (a physician) could testify as to his opinion as to the reasonable rental income for the property. The bar examiner's grading guidelines indicated that there were 5 points to look for in evaluating the answers: 1) The testimony would be an opinion. 2) A witness can qualify as an expert based on knowledge, skill, education, training or experience, as long as there is a "reasonable pretension" of such knowledge. 3) The owner, though a medical expert, is NOT an expert in the relevant area - real estate value. Therefore, the answer has to be analyzed under Rule 701 - Lay Opinion Testimony. 4) Lay opinion testimony is allowed only if rationally based on the witness' perception, helpful to the jury and not based on specialized knowledge. 5) A lay witness can provide an opinion about the value of property he or she owns. Prior Bar Exam Question: Can a non-expert testify as to whether someone was intoxicated? The bar examiner's grading guidelines indicated that candidates should discuss that the witness was not an expert, and therefore the evidence had to be analyzed as lay opinion testimony. A lay witness can form an opinion as to intoxication based on a rational perception of the individual. It is not based on specialized knowledge and the testimony would be helpful to the jury.

DUI: Checkpoints

CHK PT STOPS - Need not be supported by RS or PC - Authorized under a PA statute, allowing PO to make stops while engaged in a systematic program of checking vehicles and drivers for compliance w/the vehicle code. Deemed lawful under RB test bc PA's interest in protecting the public and deterring DUIs outweighs the brief intrusion chk pts pose. All DUI ck pts must substantially comply w/ certain judicially created guidelines judicially created guidelines 1. decisions to hold chkpt MUST be made by: admin personnel, they decide how to be run, will we stop every person, every 3rd, etc.) 2. line personnel: can temp stop op of chkpt for congested traffic, and safety becomes and issue but once re-institutes chkpt, must again do so based on admin guidelins set forth, cannot instutte their own guidelines, would taint legality 3. chkpt's location & time must be based on verifiable factors supporting DUI history (doc support) 4. surprise must be avoided (notices must be sent to mass media ad-ing the chkpt coming up and if possible, not required, signs can be put on route approaching chkpt advising motorist what lies ahead 5. initial stop MUST be brief and CANNOT INCLUDE a vehicle search. 6. chkpt avoidance is ok if done w/out breaking MV Code - so appraching and dont want to enter chkpt, if legal to make a u-turn you can do so but once you enter chkpt its unlawful for you to leave - chkpts MUST be staffed by PO and if not, deemed unlawful

Right to privacy: housing voucher vs SSA

Chester Housing Authority v. Polaha, 2016 WL 4224910 (Pa. Commw. Ct. August 11, 2016): per Friedman, S.J., solicitor for Chester Township sent a letter to the Authority and requested a list of properties, including names and addresses, where the tenant occupying the dwelling on the property receives Housing Choice Voucher Assistance from the Authority. The court held that the recipients of social services have a right to privacy in their addresses but that the property owners in this case do not qualify as social service recipients and that there is no expectation of privacy in the requested addresses.

Section 6: Right to Trial by Jury

Commonwealth has same right to invoke in criminal

Article I Section 8 of the Pa. Constitution; after exclusionary rule

Commonwealth v. Arter, 151 A.3d 149 (Pa. 2016): per Todd, J., the Court held that the exclusionary rule derived from Article I, Section 8 of the Pa. Constitution, and the Fourth Amendment of the U.S. Constitution, applies to parole and probation revocation hearings. While the Supreme Court of the United States has declined to extend the exclusionary rule to proceedings other than criminal trial proceedings, the court here held that Article I Section 8 of the Pa. Constitution offers broader protection than the Fourth Amendment, and that after an Edmonds analysis, the appellant was entitled to relief based exclusively under the Pa. Constitution.

CONST LAW: EDMUNDS DECISION

Commonwealth v. Edmunds, rejecting US v. Leon, the PA Sup. Ct. held that there is NO "good faith" exception to the exclusionary rule. - Providing MORE rights for Ds under PA's const than the Fed const. under Art. I Section 8 = (4th Am) APPLYING EDMUNDS ANALYSIS: FIRST 1. Supremacy Clause (art. 6) (above the floor but not below) -SC never been interpreted to cut off the state's ability to examine own charter and grant indiv's greater rights. state cts can always provide greater rights and protections for their citizens not considered to be contrary to fed law. its only when states attempt to take away rights guaranteed by fed const that a SC vio occurs. - Fed const. supplies a floor or a min standard by which states cannot fail to protect the rights of indivs. States are free to go beyond the floor and grant greater rights to indivs, to adopt the standard that maintain the same or greater protection BUT cant dip below the fed standard 2. Adequate & Independent State Grounds - if state ct decision contains mixed ref to state and fed law, scoptus will presume that the state ct relied on fed precedent 1. plain statement rule: short and plain stmt in opinion if intend to decide based upon their own cosnt. based upon an a adeq and ind state ground --> meaning decision wil be shielded from review from SCOTUS bc on indp bc decided on ind state ground unless vio fed const SECOND - HISTORY OF PA 🔔📜📰 📌PA Const: adopted 1776 in convention chaired by Ben Franklin 💡⚡🔑 ▪ PA Contained lengthly Declar. of Rights, which were at the beginning of the const. not the end and the BOR were when doing analysis against fed ▪ US CONST: 10 years after PA when doing the analysis: ▪ State has its own independent history and may justified a diff result then the fed precedent 1991 - EDMUNDS FACTORS: ▪ Edmunds: involved man who based upon tip of 2 hunters was subject to a visit by PO. in his hast to show them his lease for a greenhouse he owned, he walked them right past bails of weed wrapped in see through package. ▪ issue: no dispute that search warrant was defective bc tip given by hunters had no time frame in which hunters had seen weed, which was a PA requirements. Trial ct & superior ct allowed weed in even though warrant was defective at trial under good faith exception to exclusionary rule (SCOTUS: Leon). bc they said attacked in GF. obtained warr by a neutral and detached mag. ▪ Edmunds freaked bc justices voted to reject GF exception to exclusionary rule under art. I, section 8 of our const. cts stressed the strong notion of privacy that historically has existed in PA and as result that PA const gave greater rights to its citizens than under 4th am Litigants raise/brief 4 FACTORS in ANY case implicating stateConstitution: ❗📌Edmunds framework a. Text of state constitutional provision b. History and PA case law c. Related case law from other states d. Policy considerations (incl. issues of state/local concern) 2.Failure to follow framework is NOT waiver, but its use is strongly advised

KIT CONTRACTS CONFIRMING MEMO EXCEPTION TO SOF

Confirming memo exception to Statute of Frauds: Under the U.C.C., in contracts between merchants, if within a reasonable time after an offer, the offeree sends a writing in confirmation of the contract that is received by the offeror, and it is not objected to within 10 days, then the writing is a confirming memo that will satisfy the Statute of Frauds.

KIT CONTRACTS - CONSIDERATION

Consideration is an essential element of an enforceable contract and the modern concept of consideration is composed of two elements: legal value and bargained-for-exchange.

KIT CONTRACTS - VOIDABLE MINORS

Contracts entered into by a minor are voidable by the minor, but not void. Pennsylvania recognizes that a contract made by a minor for what are known as "necessaries" is enforceable.

Evidence: PA RE 403 Relevance

Ct may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence ex. gruesome or potentially inflammatory pics admissibility determination is a 2-step process: 1. ct determine whether pic inflammatory 2. if so, admissible if essential evidentiary value outweighs likelihood that pic will improperly inflame minds and passions of jury *in criminal homicide cases will always be admissible bc have essential evidentiary value re: specific intent of actor which outweighs ex. mary shot john 5 times in head (vital part of John's bod)- prosecutor wants to introduce the pics which prove SI for 1st degree, pics are highly relevant in establishing intent by showing location & nature of V's injuries & availability of alternative evidence does not substitute weight of pics relevance *if not inflammatory: admissible if relevant & can assist jury in understanding facts PA says pics of a deceased person not per se inflammatory :0 and in fact lies w/in discretion of judge

Evidence: 5th Am

D. Fifth Amendment Privilege - Obviously same as in Federal Court Prior Bar Exam Question: Your client has pending criminal charges. He has been summoned to be deposed in a civil case. Two questions asked: (1) Does he have to attend the deposition? YES. (2) Does the 5th Amendment apply? YES. In the deposition, the client can refuse to answer questions that are asked based on the 5th Amendment. BUT - he has to invoke the privilege question by question.

Corp. DOC/DOL

DIRECTORS Owe corp both DOC & DOL Standard: Directors must discharge duties 1. w/ GF and a RB that is in the BI of corp. and (DOC) 2. w/ same degree of care as a PP would use (DOL) 3. (also add) in doing so Dir not required to consider interests of particular ppl DOL: 1. Self dealing 2. competing ventures - remedy: constructive trust 3. corp. interests - remedy: constructive trust Director defense: BJR? PP standard? corp created by complying w/ PA Bus Law (BCL) (filing arts of incorp w/ state)

Evidence: Dead Mans Statute

Dead Man Statute: Pennsylvania has a Dead Man Statute a) The rule: An interested survivor cannot testify for his or her interest against the decedent or decedent's representatives about communications or transactions with the decedent in a civil case unless there is a waiver. b) Elements of Statute 1) Applies only to civil cases. (But does not apply if the case involves distribution of property by descent or will.) 2) Witness must have direct stake in outcome. 3) Witness must testify for his/her interest. 4) Witness must testify against decedent or decedent's representative. 5) Subject matter is limited to transactions or communications with the decedent. Under the PA statute, the Dead man's Act extends to all pre-death events. 6) May be waived in Pennsylvania: • by deposing a witness or subjecting a witness to interrogatories concerning occurrences involving the deceased party (even if the discovery was conducted prior to the death of the decedent, and even if the discovery is never filed or used in evidence); • by introducing the deposition of the deceased; or • by cross examining a witness on pre-death events. Hypo: Pl sues Def for breach of oral contract. Def admits he received an offer but denies he ever accepted it. Def dies before trial. At trial, Pl testifies that "Def said to me 'I accept your offer.'" Will the Dead Man Statute operate to exclude? __________________________________________________________ Hypo continued: Prior to the death of Def, counsel for Def sent interrogatories to Pl about the contractual negotiations. At trial, Pl testifies that "Def said to me 'I accept your offer.'" Will the Dead Man Statute operate to exclude? __________________________________________________________ Prior Bar Exam Question: There was a clear waiver of Dead Man's Act. But, to obtain maximum points the bar examiners expected you to FIRST give the general rule, and note that it applied in your analysis; and THEN give the exception to the general rule, and in your analysis point out the under the exception, the non-deceased party would be able to testify at trial.

KIT Ks & SALES: Demand for Assurance

Demand for assurance: If there are reasonable grounds for insecurity with respect to a party's performance, the other party may demand in writing assurances that the performance will be forthcoming at the proper time. Until he receives adequate assurances, he may suspend his own performance. If the proper assurances are not given within a reasonable time (i.e., within 30 days after a justified demand for assurances), he may then treat the contract as repudiated

KIT - EMPLYT DISCRIMIN. Religion PFC

Employees who seek to make out a prima facie case of religious discrimination must show that (i) they hold a bona fide religious belief conflicting with an employment requirement, (ii) they informed their employers of this belief and conflict, and (iii) they were disciplined or subject to discriminatory treatment for failure to comply with the conflicting employment requirement.

Taxes (KIT)

Dividends are generally incl in GI in the yr rcvd. the rcpt of a gift is not income. dividends that are a gift, and not a transfer by an employer to or for the benefit of an empire, are not income

KIT CON LAW - DOOR TO DOOR SOLICITATION

Door-to-door solicitation is a protected form of expression under the Free Speech Clause of the First Amendment, and infringement on this right requires an important governmental interest that is directly served by the regulation sought to be imposed, and must not be overly broad by precluding more speech than is necessary to serve the governmental interest.

KIT CON LAW -Dormant Commerce Clause

Dormant Commerce Clause: The "negative" aspect of the Commerce Clause (the implied limitation on states' power to impose burdens on interstate commerce unless the interference is justified by a valid factor unrelated to economic protectionism) and the "market participant" exception. The Dormant Commerce Clause restricts states from imposing differential treatment on in-state vs. out-of-state economic interests. A local regulation, discriminatory on its face, is invalid unless it advances a legitimate local purpose that cannot be served by reasonable non-discriminatory alternatives. A local purpose will not be legitimate if the intention is to intentionally discriminate.

KIT CONTRACTS - Duty to make reasonable efforts to mitigate losses

Duty to make reasonable efforts to mitigate losses prevents a party from recovering damages that the injured party could have avoided without undue risk, burden or humiliation. In a breach of employment contract context, an injured party's failure to mitigate lost wages would reduce his damages by any amount that might have been earned through reasonable diligence in seeking other employment. The burden is on the breaching party to prove that substantially equivalent positions were available to the injured party and that the injured party failed to use reasonable diligence in attempting to secure those positions.

Evidence: other privileges

E. Other Privileges Prior Bar Exam Question: Defendant in civil case was at a picnic and talked to someone who happened to be a pastor. It was not her pastor and she was not seeing spiritual guidance. She was not confessing. QUESTION: Plaintiff wants to call the pastor as a witness. Defendant objects on the grounds of privilege. How would the court rule? Remember that privileges are created by statute in Pennsylvania, and think about common issues with other privileges - was the communication confidential? Was the information conveyed something that would be protected by the purpose of the statute? "Under the Pennsylvania clergy-penitent statute, confidential communications made to a member of the clergy for the purpose of obtaining spiritual guidance are protected from disclosure. Here, the conversation was not confidential because ...."

Wills - intentional disheirtance of spouse / elective share

Elective estate is equal to net testamentary estate (over and above funeral expenses, expenses of administration and allowable creditors' claims). PLUS: 3 types of lifetime donative transfers to the spouse or to others: a. transfers with retained power to revoke, consume, invade, or dispose of principal for his own benefit. (E.g., revocable trust) b. Decedent's undivided interest in property acquired in right of survivorship form. (E.g., JTWROS, joint bank accounts) c. transfers in excess of $3,000 made by the decedent within a year of death. Elective share is one-third elective estate but it is in lieu of all other interests the spouse has in D's property whether passing under the will, by nontestamentary transfer (e.g., in trust or by beneficiary designation of an insurance policy or pension plan) or, to the extent the spouse has the property or its proceeds, property which the decedent gave the spouse during life. Alternative: The spouse may elect to keep what is left her under the decedent's estate plan, but if she does, she has to reduce the elective share by the value of what she decides to keep. The right to take an elective share can be waived in writing after fair disclosure.

KIT CONTRACT S- ELEMENTS OF PROMISSORY ESTOPPEL

Elements of a cause of action based upon promissory estoppel: A promise that would reasonably be expected to induce action or forbearance on the part of the promisee; action taken or refrained in reliance on the promise, and injustice that can be avoided only by enforcing the promise.

KIT -EMPLYT DISCRIMIN. - Title VII re: Sex - Anti-Retaliation Act

Employment discrimination based on sex is prohibited by Title VII of the Civil Rights Act of 1964, and the anti-retaliation provision of that Act forbids an employer from discriminating against an employee or job applicant because that person opposed any practice made unlawful by Title VII or made a charge, testified, assisted, or participated in a Title VII proceeding or investigation

KIT CON LAW - EPC

Equal Protection Clause: The right to travel from one state to another has been held to be a fundamental right that cannot unreasonably be burdened or restricted by a state statute or regulation, but minor restrictions on travel do not amount to a deprivation of a fundamental right. To constitute a burden or penalty on the right to travel, a toll differential must have a significant effect on interstate travel or inhibit the right to travel in a meaningful sense.

KIT CON LAW - EPC DISP IMPACT

Equal Protection Clause: When a rule or practice appears to be gender-neutral on its face but has a disparate impact on women, courts must examine if the impact reflects invidious gender-based discrimination. If a discriminatory purpose is found, the court should apply intermediate scrutiny to see if the challenged classification serves important governmental objectives and if the means employed are substantially related to achievement of those objectives

Wills - Intestacy Exs - take per capita

Example 1: 1/4 A-D (children) (whenever all equally related, take equal)

Wills - Intestacy Exs - take by right of rep of rep

Example 2: A1: 1/4; B: 1/4; C1& C2: 1/8 & D1 -D3: 1/12

Wills - Intestacy Exs - per capita

Example 3: Same as Ex. 2 except A & B also predeceased: NOW ALL equally related would take per capita @ 1/6 each bc have 6 grandchildren 6 lines 1x6 =1/6

KIT CONTRACT S- EXPRESS WARRANTIES UNDER UCC

Express; warranties under the U.C.C.: Even though the seller does not use words such as "warrant" or "guarantee," express warranties are created by the seller by an affirmation of fact or by a promise made by the seller to the buyer relating to the goods that becomes a basis of the bargain.

Evidence: Specific Acts of Misconduct by the Accused

F.R.E. 404(b): Prior crimes or prior acts of uncharged misconduct may be admitted when the misconduct is relevant to prove a material fact other than character or disposition such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Balancing based on unfair prejudice is under Rule 403. Pa.R.E. 404(b): Other acts evidence admissible against a criminal defendant only if admitted for proper purpose (e.g. motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident; same as federal) and probative value outweighs prejudicial effect. In civil cases, or if offered by the accused, balancing is under Rule 403. Prosecution must give notice under both Pa. and federal rules. Hypo: Def is charged with murder of Detective. Prosecution offers evidence that Def killed Def's wife three years ago. Prosecution also offers evidence that Detective was killed because Detective was about to arrest Def for the murder of his wife. Is it admissible? Note that it is relevant to demonstrate motive for charged murder. Pa. approach: Does probative value as proof of motive ________________ the risk of unfair prejudice (i.e., that jury will conclude that Def is a bad person or murderer)? Prior Bar Exam Question: Party was offering other acts evidence. The bar examiners wanted you to discuss that that character evidence is generally not admissible, BUT you needed to identify other possible non-character purposes for the evidence. THEN balance those with the risk that it would just tarnish the reputation of the defendant.

KIT CON LAW - 5th Am

Fifth Amendment: Private property shall not be taken for public use, without just compensation. One person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation is paid.

KIT CON LAW - 5TH AM. TAKINGS

Fifth Amendment: Takings Clause. A taking can occur by regulation or physical appropriation of property. First Amendment: Compelled speech. Mandatory disclosure requirements result in content-based regulation of speech. Strict scrutiny/compelling state interest analysis applies. To have standing, a party must allege injury traceable to defendants' unlawful conduct likely to be redressed by requesting relief.

KIT CON LAW - 1ST AM - ESTABLISHMENT & FREE EXERCISE CLAUSE

First Amendment: Establishment and Free Exercise Clauses. Enactment does not contravene Establishment Clause if it has secular legislative purpose, if its primary effect neither advances nor inhibits religion, and if it does not foster excessive government entanglement with religion. Free Exercise Clause precludes employment discrimination claims brought by ministers and others with spiritual responsibilities against religious organizations, but not claims asserted by employees with duties of a more secular nature. Fourteenth Amendment: Procedural due process. Some process must be afforded before a liberty or property interest is taken.

KIT CON LAW - 1ST AM FREE SPEECH PERMIT RQMT

First Amendment: Free speech. Permit requirement; license for solicitation; bans on signs. Forfeiture of property: Innocent co-owner.

KIT CON LAW - 1st Am Defamation

First Amendment: To recover for defamation, a public official or public figure must show that an otherwise defamatory statement was made with actual malice — with knowledge that it was false or with reckless disregard for its falsity.

KIT CON LAW - 14TH AM EPC

Fourteenth Amendment: Equal protection—similarly situated people should be treated similarly.

KIT CON LAW - 14TH AM SDP

Fourteenth Amendment: Substantive due process. First Amendment: Free Exercise Clause, Establishment Clause. Under the Fourteenth Amendment, parents have due process rights to make decisions regarding the care and control of their children and to bring them up. Free Exercise Clause does not permit a state to force someone to practice a religion. Establishment Clause does not permit a state to advance religion or favor one religion over another or select religion over no religion.

KIT CON LAW - 4th Am

Fourth Amendment: Public employees have an expectation of privacy in their offices, but a search of an employee's workspace by a supervisor can be justified if there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a non-investigatory work-related purpose, such as to retrieve a needed file.

KIT CON LAW - FREE SPEECH 1ST

Free speech: Government may create a limited public forum, confined to the specific purpose for which it was created. First Amendment: Compelled speech. Use of required contributions by non-union members to subsidize ideological activities of union could violate First Amendment by compelling a nonmember to support speech or activity with which he disagrees.

KIT CONTRACTS - FRUSTRAITON OF PURPOSE

Frustration of purpose: Success of frustration of purpose defense requires four elements: (i) the purpose frustrated must have been the principal purpose of the party in making the contract and the other party must have been aware of that purpose; (ii) the frustration must be substantial; (iii) the nonoccurrence of the frustrating event must have been a basic assumption on which the contract was made; and (iv) the frustration must occur without the fault of the party claiming frustration.

Taxes (KIT)

GI does not incl value of prop acquired by gift, bequest, devise or inheritance. for gift to be excluded from income to recipient, it must be made w/detached and disinterested generosity out of affection, respect, admiration, charity, or like impulses

Conflict of Law - Gov. Analysis

GOV ANALYSIS SUMMARY: - VERY STRONG FORUM DEFAULT - IF TRUE CONFLICT, APPLY FORUM LAW - UNPROVIDED FOR CASE- APPLY FORUM LAW - AND OPTION OF DOING SIMILAR W/ DISINTERESTED FORUM

Taxes (KIT)

Gambling winnings are income, and losses are deductible as an itemized deduction to the extent of winnings

Taxes (KIT)

Generally, money received in a loan transaction not income to the borrower where there is an existing, unconditional, and legally enforceable obligation for the repayment of the principal sum. the cancellation of an existing obligation to repay a debt generally results in taxable income to debtor in amt of debt cancelled

Taxes - GI

Gross income includes any economic benefit or any clearly realized accession to wealth. incus: windfalls, non cash income from an illegal source, and recovery of property giving rise to a deduction in a prior yr that resulted in a tax benefit in addition -- to be taxable there MUST have been a REALIZATION - an accrual or receipt of cash, property or services or a change in the form or the nature of the investment that justifies imposing a tax borrowing men does not give rise to income act of non cash income is FMV of property or services rcvd

DUI Prosecutions ❗

Homicide by Veh/DUI: unintentionally causing death of another as a result of a bio of the DUI statute. 2nd degree felony, punishable by 3yr min for each death up to 10 yrs and bc homicide is greater off the DUI merges (not two sep sentences) -could be charged with a non dui crim homicide under crimes against unborn child act Contributory Neg - NOT A DEFENSE but D permitted to show intervening cause severing nexus Aggravated Assault DUI: negligent causation of serious bod injury as result of DUI vio -Contributory Negligence NOT A DEFENSE Actual violator does not have to be the striking vehicle. ex. indiv driving erratically causing another vehicle to take evasive maneuvers result in which caused 2nd vehicle to be in an accident causing serious bod injury. ct found that actions of 1st vehicle D - put in change the events resulting in serious bod injury. DUI off merged AGG assault upon conviction also 2nd degree fel. Driving under a DUI-related operating privilege suspension 1. Results when a person whose operating privilege has not been restored from an active or pending suspension imposed for a DUI offense or chemical testing refusal, is caught driving. a. More severe penalties are imposed where the person has a BAC equal to or greater than .02% or prohibited controlled substances or metabolites in his or her system, or has prior DUS-DUI violations. 2. Although the prosecution must show the motorist had actual notice of the suspension, a claim that the suspension notice was never received is a valid affirmative defense; however, this defense is not available if the defendant moved and did not notify PennDOT of his or her new address.

Wills - Pretermitted spouse

If facts of Q involve H&W situation and you are asked to discuss rights of the SS to share in the decedent's est. you will want to consider discussing: 1. compare date of will to date of marriage - was will written B4 marriage? if was --have a pretermitted spouse Effect of marriage following execution of will: PS gets an intestate share (meaning what would have gotten had he died with no will at all) intestate share never less than 1/2 of est & can be all of est. if no surviving issue or parents, so valuable right. we give spouse right to claim in contravention to will bc will predates marriage & concern is that decedent's failure to provide for spouse was a mistake/unintentional. he did so before married and then gt married - so law does for him UNLESS the will give spouse a greater share or appears from will it was executed in comptemplation of the marriage (not intending on leaving spouse anything) so disheritance intentional doesn't protect against intentional disheirtance Protections against intentional: share of elective est. elective est = equal to value of

Edmunds Analysis❗

In Edmunds, when a litigant seeks relief based exclusively on the PA Constitution, as does Appellant in this case, it is important that the litigant brief and analyze the following four factors: (1) the text of the PA constitutional provision; (2) history of the provision, incl PA case law; (3) relevant case law from other juris; and (4) policy considerations, incl unique issues of state and local concern, and applicability within modern PA jurisprudence. Com v. Edmunds, the PA Supreme Court held that there is no "good faith" exception to the exclusionary rule. 🔔📜🖊Dates back to William Penn - he envisioned a state free of gov interference

KIT CON LAW - ANALYZING EPC

In analyzing an equal protection claim, a court should evaluate the nature of the classification involved, apply the appropriate level of scrutiny, and uphold the ordinance if a rational basis for the classification was found to exist

KIT -EMPLYT DISCRIMIN. ADEA - DEFENDING A CLAIM

In defending against a claim of discrimination under the ADEA, an employer cannot use after-discovered evidence of misconduct because the employer could not have been motivated to terminate the employee for wrongdoing of which it had no knowledge at the time of the termination, but an employer can use after-discovered evidence of misconduct to limit the remedy available. If 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.

KIT CONTRACTS -material breach

In determining if a contractual breach is material consider (i) the extent to which the injured party will be deprived of the benefit reasonably expected and can be adequately compensated for the part of that benefit of which he will be deprived; (ii) the extent to which the party failing to perform will suffer forfeiture; (iii) the likelihood that the party failing to perform will cure his failure; and (iv) the extent to which the behavior of the party failing to perform comports with standards of good faith and fair dealing.

WILLS - CONDUCT BARRING PARTY FROM SHARING IN THE ESTATE

Intentional Killing: A person who feloniously and intentionally kills the decedent is not entitled to any benefit from decedent's estate by will, by intestacy, under elective share, life insurance contract or otherwise. Property passes as if killer predeceased decedent. Jointly held property with right of survivorship passes half to victim's estate and half to killer for life with remainder to victim's estate. Desertion: Inheritance and elective share rights of a husband or wife are forfeited if the husband or wife willfully

‼️Murder in the First Degree - Intentional Killing

Intentional killing of another person by means of poison, lying in wait, or by any other kind of willful, deliberate and premeditated (planned) killing. This includes shootings, stabbings, etc. note: accomplices/co-conspirators only liable for 1st if proven they personally had specific intent to kill - which may be inferred by manner in which killing accomplished (use of weapon on vital part of V's bod) carries most significant sentence in PA: death or life in prison without parole

Intestate Succession

Intestate Distribution Without a will, the representative distributes the assets of the estate based on the intestacy laws. The Pennsylvania statute on descent and distribution identifies heirs and the amount heirs inherit on intestacy as follows:If testator died leaving: Distribution to: • Surviving spouse only. All to spouse. • Surviving spouse and parents (but no surviving issue). The first $30,000 plus one-half of the intestate estate to the spouse and the balance to the parents. • Surviving spouse and issue of decedent and surviving spouse. The first $30,000 plus one-half of the intestate estate to the spouse and the balance to the issue. • Surviving spouse and issue of decedent, one or more of whom are not surviving spouse's issue. One-half of the intestate estate and the balance to decedent's issue. • No surviving spouse. In the following order: • Issue. • Parents. • Siblings or their issue. • Grandparents. • Uncles, aunts or their issue. • The Commonwealth.

Involuntary Manslaughter - Reckless Act❗

Involuntary manslaughter, a misdemeanor of the first degree, is defined as the killing of a person that resulted from an unlawful act or lawful act which was committed in a reckless or grossly negligent manner. An individual driving a car at high speed through a school zone during school hours is guilty of involuntary manslaughter when he hits and kills a child crossing the street.

Wills - LAPSE & ANTI-LAPSE STATUTES

Lapse occurs when a beneficiary does not survive the testator and the will does not have any further instructions for the disposition of the testamentary gifts made to that beneficiary. Applied ONLY when the deceased beneficiary was testator's: 1. Issue. 2. Sibling. 3. Niece. 4. Nephew. Failed gifts to any other person, such as a parent, are not subject to the anti-lapse system. However, even if the deceased beneficiary is within one of these four categories, the anti-lapse system is not applied if the failed gift will otherwise pass to the testator's spouse or issue. When anti-lapse is applied, the failed gift is divided among the deceased beneficiary's issue, on a per stirpes basis. Any failed gift that cannot be given according to the anti-lapse system is made a part of the testator's residuary estate. Note, however, that the application of PA's anti-lapse system is not mandatory and can be controlled by a will.

Tax - Exclusions

Life Insurance Proceeds RULE: Gross income does not include proceeds paid by reason of death of the insured. This is not a deduction from GI, it is simply not included in GI in the first place. However, when proceeds are paid in installments, any interest paid will be taxable. Inheritances RULE: Gross income does not include amounts received by bequest, devise, or inheritance. Gifts RULE: Gross income does not include amounts received by gift. However, income received from the property received by gift is income. The basis in property received as a gift equal the basis of the donor of the gift (i.e., carryover basis). DEFINITION OF GIFT: A gift is a transfer made out of detached and disinterested generosity. Normally made based upon love, affection, charity or similar impulses. Tort Awards RULE 1: Gross income does not include damages received on account of physical personal injury or sickness. Therefore amounts received as compensatory damages by a plaintiff is a personal injury lawsuit are not includable in gross income. RULE 2: By themselves, damages for emotional distress are not considered damages received on account of physical injury. Compare: RULE 3: punitive damages received in connection with personal injuriesare taxable. Punitive damages received in any context are includable in gross income. Note: Damages can be paid via a court order or an out of court settlement.

KIT CONTRACTS - LIQUIDATED DAMAGES

Liquidated damages: Parties to a contract may specify in advance the amount of damages that a party will receive if a breach occurs. A liquidated damages clause is valid if (i) the computation of actual damages is speculative or difficult to estimate in advance or to prove after a breach occurs, and (ii) the amount agreed to as damages is a reasonable forecast or approximation of the expected loss.

KIT CONTRACT S- LOST PROFITS 2

Lost profits are recoverable in Pennsylvania in a breach of contract action where (i) there is evidence to establish them with reasonable certainty, (ii) there is evidence to show that they were the proximate consequence of the wrong, and (iii) they were reasonably foreseeable. A claim of lost profits is generally too speculative to provide a basis for an award of damages when such a claim is made in the context of a new and untried business venture. The injured party would be able to recover money paid out and all reasonable and proper expenses incurred in reliance on the contract. Generally, damages for emotional distress are not recoverable in a breach of contract action.

KIT CONTRACTS - LOSS PROFITS

Lost profits are recoverable in a breach of contract action if (i) there is evidence to establish the damages with reasonable certainty; (ii) the damages were the proximate consequence of the wrong and (iii) the damages were reasonably foreseeable. To recover consequential damages, an injured party must prove that the damages were within contemplation of the parties at the time they made the contract. Damages for emotional distress are not recoverable in a breach of contract action in Pennsylvania, unless the emotional distress is accompanied by bodily harm or unless the breach is of such a kind that serious emotional disturbance is a particularly likely result and the defendant's conduct must be something close to outrageous.

DUI: Miranda & Field Sobriety Test

MIRANDA & FIELD TESTS: NOT ENTITLED TO MIRANDA - where recorded - its permissible to show VID performance on test BUT AUDIO subject to suppression bc any utterance maybe more prejudicial than probative. an exception: where motorists verbally refuses to submit to chem testing,

❗️Criminal Law: Mental States❗️

MPC PA defines cranial mental states similar under the model penal code, except that "purposely" under MPC is labeled as "intentionally"

KIT CONTRACTS - MAILBOX RULE

Mailbox rule: A retraction of an offer has no effect until it is communicated to the offeree; thus, it is only effective upon its receipt by the offeree. Under the mailbox rule, an acceptance of an offer is deemed to be effective when the offeree places the acceptance in the mailbox

KIT CONTRACTS - MAILBOX RULE

Mailbox rule: A revocation of an offer has no effect until it is communicated to the person to whom the offer has been made. When the use of mails as a means of acceptance is implied from the surrounding circumstances, an acceptance of an offer is deemed to be effective when the offeree has placed the acceptance in the mailbox. A revocation of an offer is ineffective if received after an acceptance has been mailed.

Wills - Intestacy

Majority (Pennsylvania) rule: Issue, whether of decedent, decedent's parents or others, take per capita (equally) if all are of same degree of relationship otherwise they take by right of representation: divide set into shares - 1 share for each line of descent A: 1 LINE B: 2 LINE C: 3 LINE D: 4 LINE = 4 LINES 1x4 = 1/4 - 2x4 1/8 - 3x4 = 1/12

KIT CONTRACTS - MUTUAL MISTAKE

Mutual mistake may be grounds for rescission of a contract. A party adversely affected by a mutual mistake must show that: (i) the mistake relates to the basis of the bargain or a basic assumption upon which the contract was made; (ii) the mistake has a material effect on the agreed upon performances; and (iii) the party adversely affected by the mistake does not bear the risk of loss for the mistake.

PA PROPERTY OFFENSES ❗❗

NO Larceny - PA calls THEFT the unlawful taking or exercise of unlawful ctrl over, movable 1. THEFT in PA a. "False Pretenses" Theft by Deception (4X)❗ b. "Larc by trick" =Theft by Unlawful taking or disposition (7X) ❗ c. Theft by Extortion d. RSP - G of theft is intentionally receives, retains or disposes of movable prop of another knowing its been stolen or believing its been probably been stolen e. Theft by Failure to Make a Dispo of Funds Received 7. Retail Theft - ❗BURGLARY (10x)❗ G if w/ intent to cmt crime therein, person enters bldg or occupied structure or separately secured or occupied portion thereof that is adapted for ON accommodations in which @ the time of offense any person is present. BURGLARY DEFENSE: @ time of commission of offense bldg or structure was abandoned, the premises was open to public or actor was licensed or privileged to enter ROBBERY (7X)❗ ARSON ❗ CRIMINAL TRESPASS ❗ (5X)

KIT -EMPLYT DISCRIMIN. -Natl Origin

National origin discrimination: The plaintiff bears the burden of persuasion, which may be met with circumstantial evidence. Under a "pretext" claim, once the prima facie case has been established, the burden of production of a legitimate, nondiscriminatory reason is shifted to the employer, following which the employee is required to establish pretext and that illegal discrimination was the real reason for the defendant's negative employment action. Credit granted for discussing the burdens in a "mixed motive" claim, recognizing that once the plaintiff proves that an illegitimate factor had a motivating role in the decision, the employer can avoid liability by proving it would have made the same decision even in the absence of the impermissible factor.

Intoxication or drugged condition.

Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.

Evidence - OKIAPIMP

OKIAPIMP (404)(b) Other cRIMES FOR NON-CHARACTER PURPOSE General rule under FRE 404(b) & PA - A D's other crimes or specific bad acts are inadmissible during the prosecution's case-in-chief if only purpose is to prove propensity -i.e. bc of D's bad character he must have done crime charged here General Exception: BUT if D's other crimes or specific bad acts offered for some other purpose other than propensity (OKIAPIMP) then evidence will NOT be barred bu the rule against character evidence O - Opportunity K - Knowledge I - Intent A - Absence of mistake or Accident P - Preparation I - Identity (MO) M - Motive P - Plan in PA: diff is probative value outweighs prejudicial effect vs. FRE: probative value if you can satisfy an OK-IA-PIMP category the pros +++may use other crime evidence in its case-in-chief! +++not dependent on the defense's intro of favorable character evidence via opening door +++civil or criminal use Ways to prove OKIAPIMP: 1. by a conviction or 2. by evidence that tends to show other act occurred burden of proof: sufficient standard - pros must produce sufficient evidence for a reas jury to conclude D cmtd prior act by a preponderance of the evidence Other considerations: - lmtd instruction -403 balance NOTE - PA & FRE diffs: PA test: admissible only if probative value outweighs potential for unfair prejudice vs. FRE test: probative value substantially outweighed by danger of unfair prejudice -pre-trial NOTE - PA & FRE diffs: PA: Mandatory notice in criminal case: pros must provide reas notice in advance of trial, or during if ct excuses on good cause shown, of general nature of any such evidence the pros intents to introduce at trial vs. FRE: notice upon request of D

KIT - EMPLYT DISCRIMIN. After PFC determined

Once a prima faciecase is established by the employee, the burden shifts to the employer to show that it made good faith efforts to accommodate the employee's religious practices or that any accommodations would work an undue hardship.

KIT Ks & Sales: REPUDIATION REMEDIES

Once a seller repudiates or fails to make del ivery;the buyer may "cover" by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller. The buyer may recover from the seller as damages the difference between the cost of cover and the contract price, together with any incidental or consequential damages but less expenses saved in consequence of the breach by the seller.

KIT CONTRACTS-OPTION K

Option contract: An option contract must satisfy the ordinary requirements for contract formation. If an option has no consideration to support it, no matter how nominal, the offer may be revoked by the offeror at any time prior to the acceptance.

KIT CONTRACTS -OPTION K LEGAL CONSEQUENCES

Option contracts: The principal legal consequence of an option contract is that it limits the promisor's power to revoke an offer. Without consideration, an option contract is not created.

Taxes - WHAT IS THE CHARACTER OF THE INCOME?

Ordinary Income v. Capital Gains The top marginal tax rate on most long-term capital gains is lower than the top marginal rate on ordinary income. Top marginal rate on long term capital gains is 20%. The top marginal rate on ordinary income is 39.6%. Long term means held for more than 1 year. Capital assets: Generally investment assets. Examples include stocks, bonds, mutual funds and real estate held for investment. Capital assets do not include inventory, property held primarily for sale to customers, depreciable property, and copyrights. Examples: stock or real estate held for investment NOTE: Dividends to shareholders of domestic corporations are generally eligible for tax at capital gains rates. Ordinary income examples: salary, rents, interest, royalties

Divorce: summary

PA residency requirements -You and/or spouse must have lived in PA for 6mos prior to filing for divorce PA option of filing either fault or no-fault FAULT: 1. Abandonment (your spouse has left the home) w/out reas cause for a period of 1 or more years; 2. Adultery 3. Cruel & barbarous treatment (your spouse has treated you in a way that puts your life or health at risk, such as acts of domestic violence; 4. Bigamy (sister wiving); 5. Imprisonment for two or more years; or 6. Your spouse has acted in a way that made your life unbearable or extremely difficult.* NO-FAULT 1. Mutual consent: you & spouse agree marriage irretrievably broken (cannot be fixed). - Each spouse must file affidavit stating their consent to divorce; - however, if your spouse has been convicted of committing a personal injury crime against you, their consent is presumed (even if s/he does not file the affidavit). 2. Irretrievable breakdown (unfixable) - you and spouse have lived apart for a period of at least 1yr. To be granted a divorce under these circumstances, your spouse must not deny that the marriage is irretrievably broken, or that you have lived apart for one year. If s/he denies either, the judge may still grant a divorce if s/he decides, following a hearing at which your spouse has the opportunity to tell his/her side, that the marriage is irretrievably broken and that you and your spouse have lived apart for one year. However, if after a hearing, the judge decides that there is a reasonable possibility that you and your spouse can reconcile, the judge will cont the case for a period of approximately 90 - 120 days. During this time, the judge will order you both to go to counseling. If at the end of this period one or both of you still wants a divorce, the judge will reconsider whether s/he believes the marriage is irretrievably broken. If the judge decides that it is, s/he will grant the divorce; 3.Institutionalization - your spouse is found to be insane or has a mental disorder and needs to be confined to a mental institution. Your spouse must have been in a mental institution for at least 18 months prior to filing for divorce, and there must be no reasonable belief that your spouse will be discharged in the 18 months after you file for divorce. Under these circumstances, a divorce can be granted without a court hearing.**

RPC - R. 1.5: Fees

PA rules of prof conduct 1.5 govern multi aspects re: fees for legal services: - when L has not regularly rep'd Cl, basis or rate of fee shall be communicated to cl, IN WRITING, B4 or w/in a reasonable time after commencing rep (NO ORAL) CONTINGENCY -1.5(c) - authorized contingency fees in general but must be in writing with no exception for est. clients -1.5(d) - a L shall not enter into an arrangement for, charge, or collect: (1) any fee in a domestic relations matter, the payment or act of which is cont upon the securing of a divorce or upon the act of alimony or support

DUI: overview

PA's DUI laws prohibit a person rom driving, operating, or being in actual physical ctrl of the movement of a vehicle: (1) after ingesting a sufficient act of alcohol or drugs to impair the person's ability to drive safely; OR (2) after ingesting a sufficient act of alcohol that his BAC is @ least .08% w/in 2 hrs of driving + ZERO TOLERANCE STATUTE RE: ctrld substances DUI laws prohibit a person from driving w/ ANY AMT of Schedule 1; Schedule II or III; or Metabolite of ANY ctrld substance OR what remains of a ctrld substance after body has broken down in their system Physical Ctrl: almost any ctrl of the vehicle's engine will be considered sufficient to satisfy the "actual physical control" requirement Involvement of a vehicle; highway or traffic way: a vehicle = any device capable of transporting ppl or prop on a highway - a bicycle or horse drawn carriage. a DUI via must occur on a highway or traffic way. generally , any road open to the public (public park, access roads, parking garages, etc.) considered to be highway or traffic way. Alcohol impairment: PA has 3 tier system: "general impairment": a BAC of at least .08% but less than .10%; A general impairment charge may be imposed on a person who either (1) drives while being incapable of doing so safely after drinking ANY amount of alcohol; OR (2) has a BAC of @ least .08% but less than .10% within 2 hrs of driving. the first is used when BAC is unavailable and requires commonwealth to prove that the person incapable of safe driving due to alcohol impairment "high rate of alcohol": a BAC of at least .10% but less than .16% w/in 2hrs of driving; and "highest rate of alcohol": a BAC of .16% or higher w/in 2hrs of driving Different BAC levels for special classes: BAC LEVELS Adults: .08 Minors/JVs(under 21): .02 School Bus Drivers: .02 Commercial Vehicles: .04 Vehicle Stop Authorizations: PO authorized to stop a vehicle when they have: (1) RS that a vio of the vehicle code is occurring or has occurred; or (2) is engaged in a systematic program of checking vehicles or drivers Vehicle Stop = seizure and therefore must w/stand constitutional scrutiny to be valid Stop for Vehicle Code Vio - is one that does not require further investigation to set the offense (speeding or disregarding a stop or traffic signal): so it must be supporting by PC. PC = off must articulate specific facts to support the belief that a bio has occurred (i.e. officier's observations must satisfy the elements of the bio for which the vehicle was stopped) RS for Stop for DUI: a stop based on belief that motorist is DUI need only be supported by RS, since further investigation is required to see if crime has been cmt. RS = (lesser proof) exists where officer has a particularized and objective basis, in light of his experience, training, and the totality of the circumstances pertaining to the stop, to believe that criminal activity is occurring or has occurred. officer must have more than a mere hunch PO ENCOUNTERS OF VEHICLES ALREADY STOPPED 1. Sleeping motorists - Operation or actual physical control is determined by TOC: - Test: determined by totality of the circumstances: (location of the vehicle and any signs it was recently driven (e.g., a warm hood), - mere presence of an intoxicated person i.e. sleeping person inside car is insufficient to show operation or actual physical ctrl, esp if in passenger seat. (ex. case where passenger found sleeping w/ keys in ignition and cops woke up by tapping so turned ignition keys with intent to activate battery to lower window to speak to police. though if found in driver's seat results would likley be diff since he did have ability to turn key and ignite vehicle to place in motion) 2. Vehicles pulled off road: Where police encounter the owner of an abandoned vehicle at the person's home or some other location away from the vehicle, the fact the person has signs of intoxication is insufficient to support a DUI charge in the absence of some objective evidence as to the driver's identity and when the vehicle was last driven. This is so even if the abandoned vehicle fits the description in a report of a possible DUI. 3. Termination of encounter: if PO signal end to encounter by allowing motorist to leave scene, any addl attempt by PO to conduct a further investigation of motorist, such as asking adds Qs as motorist about to leave, must be supported by an entirely NEW basis for RS (think miranda) DUI CHECKPOINTS:

EVIDENCE: CHARACTER EVIDENCE: WHICH METHODS CAN BE USED TO PROVE CHARACTER EVIDENCE?

PA: REPUTATION & SPECIFIC ACTS OF CONDUCT ONLY NOT OPINION In PA Character witness can testify: "Joan is KNOWN as a peaceable person," (reputation) but cannot testify: "I KNOW Joan to be a peaceable person" this is opinion and is inadmissible (this is unlike federal ct which allows rep/sp acts/ op) CIVIL: Character evidence is permitted for civil assault & battery cases - all other cases PA rules are same as fed ct Pa.R.E. 404(a)(2)(iii): Same rule for most civil cases. Hypo: Pl sues Dan for personal injury damages alleging negligence arising out of an automobile accident. PA rule is same as federal. Pl offers a witness to testify that Dan has a reputation in the community for recklessness. Not admissible. Hypo: Pl seeks to testify that he has been driving for 40 years without ever being previously involved in an accident. - not admissible in either PA or fed Pennsylvania variation: Hypo: Pl sues Def alleging assault and battery. Def claims that Pl was the first aggressor. Def offers a witness to testify that Pl has a reputation in the community for aggressiveness. ADMISSIBLE in PA not in Fed - civil assault & battery

Evidence: Civil Assault & Battery

PENN - in a civil assault & battery, D MAY offer evidence (reputation or specific act) of pl's violent character to rebut the pl's evidence that the D was the 1st aggressor

PA Constitution

Pennsylvania Constitution Current Pennsylvania Constitution Article I - Declaration of Rights Article II - The Legislature Article III - Legislation Article IV - The Executive Article V - The Judiciary Article VI - Public Officers Article VII - Elections Article VIII - Taxation and Finance Article IX - Local Government Article X - Private Corporations Article XI - Amendments

DUI - General Impairment: .08

Per se offense A general impairment charge may be imposed on a person who either (1) drives while being incapable of doing so safely after drinking ANY amount of alcohol; OR (2) has a BAC of @ least .08% but less than .10% within 2 hrs of driving. the first is used when BAC is unavailable and requires commonwealth to prove that the person incapable of safe driving due to alcohol impairment. no requirement that the indiv's BAC be at .08 threshold @ time of driving and neither a requirement that the driver's ability to drive safely be impaired. intoxication is presumed as a matter of law if one's BAC reaches this threshold w/in 2hrs of driving.

KIT Ks & Sales: personal satisfaction

Personal satisfaction: Parties to a contract are free to make one party's duty to perform expressly conditional upon that party's satisfaction with the performance of the other party. The test of adequate performance is not whether the person for whom the service was rendered ought to be satisfied, but whether he is satisfied. However, any dissatisfaction on his part must be genuine and not prompted by caprice or bad faith.

Employment Discrimination: ADEA

Pl must be at least 40 or over and discrim must be in favor of a person younger than pl ☝but if theyre the same age, could still work only if pl is technically older D has to have at least 20 employees who work each workday in at least 20 wks during calander yr to be sued DEFENSES: 1. Good cause - not unlawful to discharge or discipline an indiv for good cause. employer/ pl bears burden of PRODUCTION and persuasion for this affirmative defense

KIT CONTRACTS - PRE-EXISTING DUTY RULE

Preexisting duty rule: A cumulative promise to perform a legal obligation, unless upon a new consideration, is a nullity. Such promise adds nothing to and takes nothing from the original obligation. A promise to do what the promisor is already bound to do cannot be a consideration, for if a person gets nothing in return for his promise but that to which he is already legally entitled, the consideration is unreal.

KIT CON LAW - PROCEDURAL DUE PROCESS - PROTECTABLE INTERESTS

Procedural due process is applicable to government decisions or actions that deprive an individual of life, liberty, or property. An individual has a protectable interest in reputation where a person's good name, reputation, honor, or integrity is at stake because of government actions. Notice and an opportunity to be heard are essential A license or permit to engage in business, which may be terminated or suspended only for cause, is a property interest protected by the Due Process Clause. Before a state actor may deprive a person of a property interest established under state law, the Due Process Clause requires an opportunity for notice and opportunity to be heard. A license or permit to engage in business, which may be terminated or suspended only for cause, is a property interest protected by the Due Process Clause. Before a state actor may deprive a person of a property interest established under state law, the Due Process Clause requires an opportunity for notice and opportunity to be heard.

KIT CON LAW - Procedural Due Process

Procedural due process: Procedural due process is applicable to government decisions or actions that deprive an individual of liberty or property interests. The Supreme Court has recognized a protectable interest in reputation where a person's good name, reputation, honor, or integrity is at stake because of government actions. Notice and an opportunity to be heard are essential

KIT CON LAW - Procedural Due Process - property

Procedural due process: residents of nursing home owned and operated by the county government receiving public benefits have no protectable property right or liberty interest that would give them a right to a hearing before the nursing home is closed due to health code violations, forcing the residents to relocate to other licensed facilities.

Con Law: 1st Am Speech and Press Clause📰🙋‍♂️💭

Prohibits the abridgement of "freedom of speech or of the press" w/ lmts on state law actions for defamations, based on 1st am freedoms of speech and press: ➖recovery for defamation by Public officials & Public Figures: requires a showing that the otherwise defamatory stmt made w/ actual malice👐 = knowing that it was false or w/ reckless disregard for its falsity STANDARD: Pl must prove D 🗣published a defamatory falsehood w/ knowledge of its falsity or w/ 👐 reckless disregard for the truth - requires a showing that D entertained serious doubts as to truth of his publication or had a high degree of awareness of its probable falsity note: a failure to investigate B4 publishing even when a RPP would have done so, not sufficient to est reckless disregard vs 🔔 🔔🔔🔔 PA 📰🙋‍♂️💭 PA Common Law Fair Rpt Privilege - defense that protects press from liability for publication of defamatory material if published material rpts on an offl action or proceeding or of a meeting open to the public that deal w/ a matter of public concern is privileged if rpt is accurate and complete - Times magazine used defense when sued for publishing article about link 🔗bt organized crime and a PA congressman. article referenced FBI materials that had been collected in the course of a criminal investigation by DOJ. Trial ct granted MSJ for mag based on privilege --📰 was used so long as rpt contains a fair and accurate acct of the proceeding, its ok. law abandons assumption that rpter adopts defamatory remarks as his own. privilege permits a newsaper or other press D to relieve itself of liability w/out establishing the truth of the substance of the stmt rptd

Taxes - Cancellation of Indebtedness

RULE: The borrower has no gross income upon the initial receipt of borrowed funds. However, a taxpayer whose debt is cancelled or discharged at less than the full amount, has discharge of indebtedness income to the extent of the difference between the full amount of the obligation and the amount paid in satisfaction of the debt. EXCEPTIONS TO THE CANCELLATION OF INDEBTEDNESS RULE: MEMORY DEVICE: The debt is RIGed. 1. Reduction or renegotiation in purchase price: If the apparent discharge of debt is really a reduction in purchase price in connection with the sale of goods, discharge of indebtedness rules will not apply. 2. Insolvency: If the discharge occurs when the taxpayer is insolvent or bankrupt, there is no immediate discharge of indebtedness income. B. What if you were insolvent at the time the bank agreed to accept $15,000 in full satisfaction of the $20,000 outstanding debt in HYPO 6A? No - this would fall within the insolvency exception 3. Gift: If the lender intends the discharge as a gift, the discharge of indebtedness rules will not apply.

Taxes - Employee Related Exclusions

Receipts from Health and Accident Insurance Value of employer provided health or accident insurance coverage, i.e. the premiums paid by the employer, are excluded from gross income. Health insurance reimbursements for medical expenses actually incurred also are excluded from gross income. The value of the actual medical care received as a result of the provision of health insurance in not included in Gross Income. Life Insurance Provided By or Through an Employer RULE: Taxpayers may exclude the value of the first $50,000 of employer-provided group term life insurance. Gross income includes the value of any excess life insurance coverage provided by the employer. Meals and Lodging RULE: Employer provided meals and lodging excluded if: 1) provided for the convenience of the employer; 2) in-kind; 3) on the employer's premises. Other Tax-Free Fringe Benefits to Employees 1. De minimus (such as pads and pens) 2. No additional cost to the employer (airline permits its employees to fly for free if they fly standby since the plane is going to fly anyway) 3. Qualified employee discounts (an employee at Macy's gets a 20% discount on purchases at the store) 4. Contributions to qualified pension plans (employer contributes 2% of each employee's salary to a pension plan). Note that this amount will be included in the employee's gross income when withdrawn. 5. Employee safety or length of service award- can't be cash, the value can't exceed $400 and the gift must be presented at a meaningful ceremony. Example- a watch worth less than $400 in recognition of 25 years of service to the company presented at the company's annual holiday party. Qualified Scholarships RULE: Qualified scholarships for tuition and related expenses (such as books and supplies) are excluded from gross income. To be "qualified," must not be payment for past or future services (i.e., should not have a compensatory flavor. Note: room and board provided via a scholarship cannot be excluded from gross income Must also be primarily for the benefit of the individual. Normally need based or merit based.

Conspiracy Defense

Renunciation = W/drawal: it is a defense that an actor after conspiring to cut crime, thwarted success of conspiracy, under circumstances manifesting a COMPLETE & VOLUNTARY RENUNCIATION of his criminal intent mere abandonment not enough, need to go to police - take aff action - if do not do anything, cannot escape crime liability

KIT CONTRACTS - REQUIREMENTS FOR VALID NONCOMPLETE CLAUSE IN EMPLYT KS

Requirements for valid noncomplete clause in employment contracts: To be enforceable, a restrictive covenant must: (i) relate to a contract for employment, (ii) be supported by adequate consideration, and (iii) be reasonable in duration and geographic scope.

KIT CONTRACTS - RIGHT TO REJECT CUT OFF BY ACCEPTANCE

Right to reject is cut off by acceptance. Acceptance occurs when the buyer, after a reasonable opportunity to inspect the goods, either signifies to the seller that the goods are conforming or that the buyer will take them despite a nonconformity; or the buyer, after a reasonable time to inspect, fails to reject the goods; or the buyer does an act inconsistent with the ownership of the seller.

RPC - COI

Rule 1.7, 1.9, 1.10, 1.11, and 1.18 → Conflicts of Interests These questions are based on the type of client → current, former, prospective, and former Got employer Note: I have prepared a Conflicts of Interest chart → Please study the attached Chart The primary issue being tested is whether a lawyer is disqualified from representing someone because of a conflict of interest. If the lawyer is disqualified, then the issue being tested is whether a law firm is also disqualified, i.e., whether the conflict will be imputed to the law firm. Informed consent can cure almost all current client conflicts except where one client asserts a claim against another client. ☼ However, Please Remember → in a non-litigation context written informed consent is only effective if the parties' interests are aligned. No amount of consent can fix warring parties. See, Rule 1.7, cmt. 28 → Where the rules refer to informed consent - cmt 1 to Rule 1.0 states that the consent must be in writing obtained when the consent is given or within a reasonable time thereafter!

Wills - Revocation by physical act

Rule: Revocation by physical act requires BOTH: (i) intent to revoke AND (ii) physical act - PA: "burnt, torn, canceled, obliterated, or destroyed." BTCOD REVOCATION BY ANOTHER PERSON Rule: revocation by another person must be: (1) done @ T's dir. and (2) proven by 2 witnesses that act done @ T's direction NOTE: accidental destruction of will does not revoke, even is T later decides he wanted to revoke - bc intent must be present @ time of physical act of destruction Sufficiency of Act: must be performed on will itself and must touch paper which will is written (if act does not involve writing on the will), or must touch either language or signature of will (if act involved writing on the will Presumptions: 1) Will in T's possession from time of execution until death and found in mutilated condition after T's death. Presumption: T did mutilating with intent to revoke. 2) Will last seen in T's possession and control not found after T's death. Presumption:Reason it can't be found is that T destroyed with intent to revoke.

Wills - Specific Devise re: ademption

Rule: Specific devisee takes "any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options." Rule: A specific devisee is entitled to securities of another entity owned by the testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity. [PBQ2] Rule: A specific devisee of encumbered property is not entitled to have the encumbrance paid out of the residuary estate unless the will shows such intent. "A general direction in the will to pay debts does not show such an intent." [PBQ2]

Wills - Incorp. by ref

Rule: To incorporate an extrinsic document by reference: (i) Writing must be in existence at time will was executed. (ii) Will must manifest an intent to incorporate the document. (iii) Will must "describe the writing sufficiently to permit its identification." oral instructions not incorporated by ref: but may give rise to a constructive trust

Wills - Revocation op of law: Divorce

Rule: Unless the will shows it was intended to survive divorce, a divorce revokes all provisions in favor of an ex-spouse in a decedent's will, revocable trust or life insurance policy -treats ex-spouses as if predeceased - if remarry, back in will - if just separate, doesn't affect rights - not divorced, legally married

Wills - Revocation by Inconsistency

Rule: Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together. But to the extent of any inconsistent provisions, the later doc ctrls and thereby revokes by inconsistency the prior will. Ex. T's 2007 will leaves Blackacre to X, her diamond ring to Y and residue to Z. T's 2010 codicil leaves $5,000 to Y and her diamond ring to M. Codicil does not expressly revoke earlier will. Who takes what? 1. M: Ring codicil ctrls: M ring 2. Y: 5k (gift in codicil, not ring) 3. X: Blackacre (nothing inconsistent) 4. Z: Residue (nothing inconsistent) b. The same rule can apply when there are two wills and the second does not in terms revoke the first [PBQ]. To the extent possible, the second will is treated as a codicil to the first. There is an implied revocation only to the extent of any inconsistencies involved. c. Revocation of a will revokes all codicils thereto. BUT revocation of a codicil to a will does not revoke the will.

Taxes (KIT)

Scholarships may be excluded from income when funds used to pay for qualified tuition and related expenses (incl books, fees, supplies. and equipt. required for courses of instruction) but not when funds are used to pay for room, board or other living expenses

KIT OCN LAW - 4TH AM SEARCHES & SEIZURES

Searches and seizures by government employers are subject to the Fourth Amendment. Employees have a reasonable expectation of privacy in desk and file cabinets absent any contrary practices. A warrant is not required for workplace searches by a government employer—but the search must be reasonable at inception (i.e., related to investigation or work purpose) and as to scope (i.e., related to accomplishing a work-related purpose)

Section 21: Right to Bear Arms / 1st am

Section 21: Right to Bear Arms Firearm Owners Against Crime v. Lower Merion Township (http://www.pacourts.us/assets/opinions/Commonwealth/out/1693CD15_12-16- 16.pdf?cb=1), 151 A.3d 1172 (Pa. Commw. Ct. 2016): per McCullough, J., the court held that a local ordinance prohibiting carrying or discharging firearms in a park without a special permit violated Article 1, Section 21 of the Pa. Constitution, ("[the] regulation of firearms is a matter of concern in all of Pennsylvania...and the General Assembly, not city councils, is the proper forum of the imposition of such regulation." quoting Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996)) and was preempted by the Pennsylvania Uniform Firearms Act ("[n]o county, municipality[,] or township may in any manner regulate the lawful ownership, possession, transfer[,] or transportation of firearms . . ."

Con Law: Section 9: Rights of the Accused in Criminal Prosecutions

Section 9: Rights of the Accused in Criminal Prosecutions

Art. I, Section 8 (similar to 4th Am)❗❗❗❗

Security From Searches & Seizures Section 8 The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. PA CON LAW DECISIONS A. SEARCH AND SEIZURE ❗PA DEPARTS FROM FED ▪ Privacy of bank records: Federal rule: NO privacy expectation PA RULE: Depositor has standing to challenge seizure or their bank records PC. PO need PC State Const requires PC, EXCEPT for: 1)Nonfinancial personal info held by bank(e.g. name and address of ATM user) ex. cmwth v. Duncan, D charged w/ rape no REP under state or fed const in name & add info on ATM card. 2)Insurance information - i.e. info submitted for prop loss claim, etc. no REP ❗❗AUTOMATIC STANDING ▪Federal rule: No automatic standing for possessory offenses (drugs) ▪PA RULE: "Automatic standing rule" 1. D charged with possessory offense has "automatic standing" to challenge admissibility of evidence resulting from illegal search (fruit of ill search) (D does not have to make prelim showing of ownership or right to poss of prop seized/ have auto standing in ct to challenge. but still have to show .... 2)Claimant MUST establish: a)Legitimate expectation of privacy, AND b)Standing i)Present at time of search ii)Possessory interest in evidenceimproperly seized iii)Possession is an essential element ofthe case, OR iv)Proprietary interest in the premises c. PEN REGISTERS i.Federal rule: No privacy expectation in numbers dialed ii.PA RULE: Warrantless use of pen registers to monitor incoming/outgoing numbers violates increased privacy ofPA Constitution ❗❗ D. BLOOD ALCOHOL DATA ▪PA RULE: 1. Can collect blood alcohol tests pursuant to statute (where D is suspected of DUI), but a warrant (or exigent circumstances) is required for access to blood tests taken for purely medical purposes (independent) (expectation of privacy outweighs) 2. BUT NO RIGHT to be informed that test results could be basis for criminal liability ❗e .CANINE SNIFFS ▪i.Federal rule: NOT a "search" ▪ii.PA RULE: Canine sniff is a "search" 1)Standards: a)Search of person➡PC b)Search of place ➡RS Ex.: storage locker Signaling by canine can be probable cause for search of car's interior f. GOOD FAITH EXCEPTION (NONE) ▪i.Fed rule: Officers' good faith reliance on warrant is an exception to the exclusionary rule ▪ii.PA RULE: NO "good faith exception" 1)Rationale: Heightened privacy protection under PAConstitution 2)Includes reliance on invalid search warrant AND expired arrest warrant ▪expired warrant : physical evidence seized pursuant to arrest that had expired - properly suppressed under Edmunds & art i section 8 - that exclusionary rule did not apply and no GF exception w/ stale warr. ct emphasis that cmth did not profer edmunds analysis for diff result. so have to make arg under 4 prong arg under edmunds ❗❗g. STOPS & FLEEING SUSPECTS "Terry" i.Federal rule: RS 1. Of criminal activity ➡police can "stop" someone 2. That detainee is armed and dangerous ➡ can "frisk" ▪ PA RULE: If no PC or RS (as in Terry), contraband discarded by fleeing suspect is"fruit of illegal seizure" (CANT USE) (CA v. Hodari D rejected) h. RANDOM STOP OF BUS ▪ i.Federal rule: 1)Seizure of passenger on bus not per se unreasonable(even if no articulable facts) 2)Depends on whether person feels free to leave due to officers' displays of force ▪ PA RULES: 1)NO random stop of bus to conduct drug interdiction in absence of: a)RS OR b)PC 2)BUT boarding of bus to question passenger NOT a seizure requiring reasonable suspicion where: a)Officers boarded with driver's permission b)During scheduled stop c)Spoke to each passenger in turn i.PO RADIO BROADCASTING ▪ Fed rule: Broadcasts can supply PC/RS ▪ PA RULE: Info from police radio broadcast may NOT be used to justify stop and frisk UNLESS: 1. PO can est. that the info in the broadcast is reliable, OR 2. Independent basis exists for RS of criminal activity ❗❗❗ SCHOOL DRUG TESTING ▪ Fed rule: CAN test for drugs as condition of participation in extracurriculars ▪ PA RULE: May NOT condition participation in extracurriculars on drug/alcohol testing UNLESS: 1. Actual showing of specific need for such a policy(i.e. drug problem), AND 2)Basis for believing policy would address need Theodore v. Del Val School Dist, Ct held that policy authorizing random, suspicionless drug and alcohol testing of students seeking parking permits or participating in voluntary extracurricular activities would be constitutional under Article I, Section 8, only if district made some actual showing of specific need for policy and an explanation of basis for believing that policy would address that need. KNOCK & ANNOUNCE i. Federal rule: NO exclusion for knock and announce violations ii. PA RULE: Failure to knock and announce (absent exigent circumstances) violates PA Constitution and evidence is excluded PARTICULARITY OF WARRANT i. Federal standard: "Mere specification of all information available" ii. PA STANDARD: More specificity required 1) Art. I § 8 requires "describing [circumstances] as nearly as can be" 2) "Actual reasonable particularity" requirement limits government discretion SURVEILLANCE IN HOME i. PA RULE: May NOT send wired informant into D's home to electronically record conversation 1) Includes use of silent video camera 2) Rationale: Heightened privacy interest in the home (HOME IS CASTLE) ii. Federal law less concerned with the privacy of the home

RPC 5.2 - Responsibilities of Subordinate Lawyers

Seniors lawyers are responsible for supervising subordinate lawyers. See Rule 5.2 A junior attorney in a firm should ordinarily follow the instructions of the senior lawyer, unless the senior lawyer tells the junior lawyer to do something that is in violation of the rules like destroy evidence or not disclose a case adverse to your client's position (i.e., it must be disclosed under Rule 3.3(a)(2)). See also Rule 5.2 Watch out for the fact pattern where the junior lawyer thinks that a case must be disclosed, but the senior lawyer after doing his research thinks that case is not quite on point and need not be disclosed and directs the junior lawyer to not disclose it. Here, the junior lawyer does not violate the Rules of Professional Conduct if that lawyer follows the senior lawyer's instruction because there is a reasonable resolution of an arguable question of professional duty (e.g. a difference of opinion and judgment). See Rule 5(b)

KIT CON LAW - Standing

Standing: Essential for standing, the plaintiff must have suffered a concrete injury to a legally-protected right, there must be a causal connection between the injury and the complained-of conduct, and the injury must be redressable by a favorable decision. Standing: Under Article III, a plaintiff must meet certain minimal requirements for standing to assert a claim. A plaintiff must show an injury in fact that is fairly traceable to the actions of the defendant and will likely be redressed by a favorable decision. Prudential standing, established by judicial precedent, requires that the plaintiff's injury is arguably within the zone of interest to be protected by the asserted constitutional guarantee. A plaintiff must satisfy both the Article III and prudential standing requirements.

KIT CON LAW - 14TH STATE ACTION

State action: Fourteenth Amendment protections, including the Equal Protection Clause, are triggered only in the presence of "state action.' Private conduct, however discriminatory or wrongful, is not prohibited by the Equal Protection Clause. There must be a close nexus between the state and any challenged action of a private entity before the actions of the private entity may be fairly treated as actions of the state itself.

KIT CONTRACTS - SOF

Statute of Frauds: Even though the Statute of Frauds generally prevents the enforcement of contracts for the sale of real property that are not in writing, an oral agreement for the sale of real property can be enforced under the partial performance doctrine.

Wills - adoption qualification

Stepparent adoption can stepchild inherit from stepparent? yes, and doesn't cut off from bio mother or bio father whiter other parent

KIT CON LAW - 1st Am Public Schools

Students in a public school environment have First Amendment freedom of speech rights, but such rights are not unqualified. Public schools may limit conduct by a student where the school establishes a well-founded expectation of disruption or of interference with the rights of others, or where the speech was determined to undermine the basic educational policies or mission of the school. Generally, public school facilities are considered nonpublic fora and may be considered to be public fora only if they have, by policy or practice, been open to indiscriminate use by the general public for expressive activity. The First Amendment is violated when the government denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.

Taxes - DEDUCTIONS next step, Below the line deductions

TO ITEMIZE OR NOT TO ITEMIZE. THAT IS THE QUESTION. Rule: If your total itemized deductions exceeds the standard deduction, you itemize and take the larger deduction. If they are less than the standard deduction, you take the standard deduction. Itemized (Non-Business) Deductions: Home Mortgage Interest RULE: Taxpayers may deduct home mortgage interest on mortgages of up to $1 million (in the aggregate) on a principal and a second personal residence. Taxpayers may also deduct interest on a "home equity loan" of up to $100,000 of principal. NOTE: Personal, i.e., consumer, interest is not deductible. Example of consumer interest is interest on credit cards. State and Local Taxes RULE: Taxes paid to state and local governments are deductible, with the exception of sales tax. Note: Federal taxes are never deductible. Unreimbursed Casualty Losses RULE: Unreimbursed casualty losses are deductible: 1) if the loss is greater than $100; 2) if the loss is sudden and unexpected; and 3) only to the extent that losses (in the aggregate) exceed 10% of AGI. Unreimbursed Medical Expenses RULE: Unreimbursed medical expenses are deductible to the extent that they (in aggregate) exceed 10% of AGI. Charitable Contributions RULE: Taxpayers may deduct the fair market value of property and the amount of cash contributed to qualified charities. A qualified charity is usually a 501(c)(3) organization such as a hospital, university, religious organization (church or synagogue) or government entity. Miscellaneous Deductions RULE: Taxpayers may deduct eligible miscellaneous deductions to the extent that (in the aggregate) they exceed 2% of AGI. Examples: Unreimbursed employee business expenses, certain educational expenses, e.g. those necessary to maintain and improve skills needed in the taxpayer's current trade or business. The expense must be for a trade or business such as credits to keep your license, bar dues, publications, Personal v. Business Expenses RULE: Personal expenses are not deductible. Legal Fees: In General: Legal fees incurred in a personal setting are not deductible. Legal fees incurred in a business or investment setting are deductible. Legal Fees: Divorce Setting: Legal fees incurred in a divorce or separation matter are generally considered personal. Consequently, these fees are not deductible. Notable Exceptions: 1. The portion of the legal fee to either party in a divorce or separation case that is attributable to tax advice will be deductible. 2. The recipient spouse may deduct legal fees necessary in generating taxable alimony. Home office Expense RULE: expenses incurred in maintaining a home office are deductible if the space is used EXCLUSIVELY for business on a REGULAR basis Investment Fees or Expenses RULE: Taxpayers may deduct the fees or expenses that were necessary to generate taxable income. Example: broker fees; settlement expenses in a successful lottery dispute. NOTE THAT THE ITEMIZED DEDUCTIONS ARE PHASED OUT ONCE YOUR AGI EXCEEDS CERTAIN LEVELS Exemptions - Not a deduction but has the same effect. RULE: Taxpayers are entitled to one exemption for themselves, one for their spouse and for one for each dependent. A dependent is a person that is a member of your household and for whom you provide more than 50% of their support. Exemption after Divorce: Unless the other parent signs a written release, the general rule after a divorce is that the custodial parent gets the exemption for children of the marriage. NOTE: WE HAVE NOW DETERMINED GROSS INCOME, ADJUSTED GROSS INCOME AND TAXABLE INCOME. NEXT STEP IS TO DETERMINE TO WHOM IS THIS TAXABLE INCOME ALLOCATED?

KIT CON LAW - Substantive Due Process

Substantive due process: Parents have a protected liberty interest in the upbringing and education of their children; however, their interest in exempting their children from stateimposed educational requirements is solely secular, and courts would likely find that the interest is not fundamental in nature and apply the rational basis standard of review.

PA ANTI LAPSE EXAMPLES

T executes will in 2006; it provides (inter alia) "I give the sum of $5,000 to my sister, Paula. I leave the residue of my estate to brother, X." Paula dies in 2007; she is survived by her husband H and two children. Paula has a will which leaves all of her estate to H. T dies in 2012. Who takes the $5,000? [PBQ6] a. When beneficiary named in the will dies before the testator, the gift: LAPSES, FAILS AND DALLS TO RESIDUARY & PASSES AS PART OF RESIDUARY b. UNLESS it is saved by the state's: ANTI-LAPSE STATUTE c. The PA statute applies when the predeceasing beneficiary is T's (decedent) - sibling or child of a sibling who leaves issue who survive T If the lapse statute applies: The issue of the deceased beneficiary take in the beneficiary's place. e. But what of fact that Paula left a will devising all her property to H? H would take the residuary BUT not gift, her kids would take f. Suppose that residuary beneficiary X was T's child (or spouse) instead of T's brother? Exception: In the case of a gift to T's sibling (e.g., Paula) or to a child of a sibling, the gift will lapse to the extent it would pass as a result to T's own spouse or issue (i.e., the spouse or issue are the residuary beneficiaries). 13. "I devise Blueacre to the children of my good friend, John Bates; I leave the residue of my estate to my sister X." At the time T executes his will, John Bates has three children: A, B and C. Thereafter, during T's lifetime, Bates has another child (D), and his son A dies leaving a child A Jr. Then T dies; he is survived by John Bates; by Bates' three children, B, C and D; by Bates' grandchild A Jr. and by sister X. Who takes Blueacre? B, C, & D split Blueacre equally (Bates Children @ death) Class gift rule: When there is a gift by will to a group of persons generically described as a class ("children," "nephews" and nieces," etc.) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take. 14. What if in the above example, the gift were to the children of my brother John Bates? B, C, D & A jr.. share in the gift --> PA Anti Lapse 15. "I devise all the rest, residue and remainder of my estate in equal shares to my good friend Alan Andrews, my business partner Betty Bates and my daughter Carla Carter. Alan Andrews predeceases T, leaving a child (Alan Jr.) who survives T. T, a widower, is also survived by Bates, by Carter and by an only son Stephen. Who takes the residuary estate? 1/2 Bates & 1/2 Carter - the two remaining residuary beneficiaries Pennsylvania (majority) rule: If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue. 16. What if, in 15, it was T's daughter Carla who predeceased T leaving a child (Carla Jr.) who survived T? Andrews and Bates also survived T. [PBQ] 1/3 each to Andrews, Bates & Carla Jr = PA Anti Lapse

Taxes - GAINS AND LOSSES ON DISPOSITION OF PROPERTY

Terminology: Realization: sale, disposition, or exchange of property Recognition: reporting (for tax purposes) gain or loss from a sale, disposition, or exchange on the tax return GENERAL RULE: Unless a specific statutory or common law exception applies, whenever a gain is realized, it must also be recognized for tax purposes. Basic Sale Formula: Amount Realized (AR) less Adjusted Basis (AB) = Gain (or Loss) AMOUNT REALIZED includes money received, plus the fair market value of property or services received, plus mortgages or liabilities to which the property sold is subject or which the buyer assumes. "COST BASIS" RULE: A taxpayer's basis in property acquired by purchase is generally the cost of the property, including money paid and borrowing incurred in connection with the purchase. "ADJUSTED BASIS" - The adjusted basis of property is equal to the cost basis of such property PLUS improvements (capital ones) or renovations. Remember that capital losses can only be deducted up to $3,000 per year. Divorce Property Settlements RULE: A transfer of property between spouses or "ex-spouses" that is incident to divorce is not a taxable event to either party. The spouse receiving the property will have the same basis that the donor spouse had. This is known as a substituted or carryover (as opposed to a cost) basis rule. Basis in Gift Property THE GAIN RULE: The recipient of a gift takes the donor's basis. This is also known as a substituted or carryover basis rule. Basis in Inherited Property RULE: The recipient's basis in inherited property is the fair market value of the property at the date of decedent's death. Like-Kind Exchanges (also known as "Section 1031 Exchanges") RULE: No gain or loss is recognized when a taxpayer exchanges property held for productive use in a business or for investment for like-kind property also held for productive use in business or for investment. Cannot use this real for personal property. IMPORTANT- there can be no cash exchanged in order for the exchange to be tax free- If cash is exchanged, then a gain will be recognized to the extent of the cash received. What is like kind property? - Property which belongs to the same class (i.e. real estate for real estate). Note that is no tax is paid and the gain is deferred, the new property takes a carryover basis from the property that was sold. The sale of one property and the purchase of another need not be simultaneous. The two transactions must occur within 18 months of each other. The Section 1031 exchange rule does not apply to losses only to the deferral of gains. Involuntary Conversion RULE: No gain or loss is recognized if property involuntarily converted due to theft, fire, seizure, requisition or condemnation is converted into property that is "similar or related in service or use." If the property lost or damaged is converted to money, gain or loss is not recognized if the taxpayer purchases replacement property that is "similar or related in service or use" within two years from the date of involuntary conversion.Gain or loss will be recognized, however, to the extent that the money received exceeds the cost of the replacement property. Sale of a Principal Residence RULE: Up to $250,000 ($500,000 for joint returns) of gain from the sale of a principal residence can be excluded if the property has been used and owned as the taxpayer's principal residence for periods aggregating two years during the five-year period ending on the date of the sale. This exclusion generally is not available if the taxpayer has used it within two years.

KIT CON LAW - FREE SPEECH CLAUSE OF 1ST AM

The Free Speech Clause of the First Amendment has been deemed to provide protections for defamatory speech involving public officials that would supersede state law liability for defamation. A public official must establish by clear and convincing evidence that a defamatory statement was made with "actual malice," i.e., that it was made with actual knowledge that the statement was false or with reckless disregard of whether the statement was true or false.

KIT CON LAW - P&I CLAUSE

The Privileges and Immunities Clause prevents a state from discriminating against citizens of other states in favor of its own. In evaluating whether a state's actions or policies violate this clause, a court must consider whether the policy at issue burdens a right protected by the Privileges and Immunities Clause, whether the state has a "substantial reason" for the discriminatory practice, and whether the degree of discrimination bears a close relation to that reason.

KIT CONTRACTS - K FOR BOTH GOODS & SERVICES

The U.C.C. applies to sales of goods. When a contract involves primarily the rendition of services, the fact that tangible goods may be involved in the performance of the contract does not bring the contract under the U.C.C. A contract for services and not for the sale of goods will not support a breach of warranty claim under the U.C.C.

Taxes - Accounting - when is income

The difference between the cash method of accounting and the accrual method of accounting is that of timing. When do you recognize income and when can you deduct an expense? Cash Method of Accounting RULE: A cash method taxpayer reports income when she receives payment and takes deductions for eligible expenses when she makes payment. Payments by check or credit card are treated the same way as a payment by cash. Constructive Receipt: A taxpayer has "constructive receipt" when funds or property are credited to her account, set apart, or otherwise made available so that she may draw upon them. Income in Respect of a Decedent (IRD) RULE: If a cash basis taxpayer is entitled to income, and payment is received by the estate after the decedent's death, the executor must report the income on estate's tax return. Accrual Method of Accounting RULE: An "accrual method" taxpayer reports income when all events have occurred that fix the right to receive it, and when the amount can be determined with reasonable accuracy. An "accrual method" taxpayer takes deductions when all events have occurred that establish the fact of liability, and when the amount can be determined with reasonable accuracy.

KIT CONTRACTS - PROMISSORY ESTOPPEL

The doctrine of promissory estoppel allows a party to enforce a promise, under certain circumstances, even though the promise was not supported by consideration. A mortgagor who is obligated by a mortgage to maintain insurance on his property can establish a cause of action in promissory estoppel based upon an oral promise made by the mortgagee to obtain insurance.

KIT -EMPLYT DISCRIMIN. - Title VII re: Sex Harrassment

The prohibition against sex discrimination in Title VII applies to harassment that is genderbased which creates a hostile or abusive work environment but, in order to be actionable, the harassment must be based on sex, not sexual orientation.

KIT -EMPLYT DISCRIMIN. - Title VII Sex Discrim

The prohibition against sex discrimination in Title VII has been applied to unwelcome gender-based sexual harassment that creates a hostile or abusive work environment. In order for a hostile work environment claim to be actionable, the work environment must be both objectively and subjectively hostile or offensive, i.e., it must be one that a reasonable person would find hostile or abusive and be one that the victim perceived to be so.

KIT CON LAW - RIGHT OF ASSOC

There is an implicit right of association for expressive purposes under the First Amendment. An infringement on this right may be justified by a compelling state interest (such as enforcement of nondiscrimination laws).

KIT CONTRACTS - UCC WARRANTIES

There is in a contract for sale under the U.C.C. a warranty by the seller that the title coiveyed is good, and this warranty can be excluded only by specific language or by circumstances that give the buyer reason to know that the party selling does not claiim title or that helis purporting to sell only such title as he or a third party may have.

KIT CONTRACTS - 3PB

Third-party beneficiary: An intended third-party beneficiary can enforce a contract against the promisor. If the intent is not express in the contract, the party is recognized as a thirdparty beneficiary only if: (i) the circumstances are so compelling that the recognition of the third-party status is necessary to effectuate the intention of the parties, and (ii) the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

KIT - EMPLYT DISCRIMIN. Title VII - facially discriminatory policy re: sex

Title VII: A policy that explicitly discriminates against women on the basis of their sex is facially discriminatory and forbidden under Title VII.

KIT - EMPLYT DISCRIMIN. Title VII PFC of Disparate impact Est. Burden Shifting

Title VII: Once plaintiff demonstrates that an employment practice has a disparate impact, the burden is on the employer to demonstrate that the challenged practice is has a manifest relationship to the employment in question. If the employer succeeds in establishing job relatedness, plaintiff may prevail by showing that the practice is a pretext for discrimination.

KIT - EMPLYT DISCRIMIN. Title VII - facially discriminatory policy

Title VII: Once plaintiff has established that the policy at issue was facially discriminatory, the burden is on the employer to establish a valid defense. A facially discriminatory policy is permissible under Title VII only if justified as a bona fide occupational qualification (BFOQ). A BFOQ is a qualification that is reasonably necessary to the normal operation of an employer's business.

KIT -EMPLYT DISCRIMIN. - Title VII elements of PFC of gender disparate trmt based on pretext

Title VII: The elements of a prima facie case of gender disparate treatment based on pretex, are that the plaintiff: (i) was a member of a protected group; (ii) was qualified to perform her job; (iii) suffered an adverse employment action; and (iv) was treated differently from others who were not part of the protected group. A Title VII plaintiff may successfully oppose a motion for summary judgment by using circumstantial evidence to discredit the employer's articulated reasons or by showing that discrimination was more likely than not a motivating or determinative cause of the adverse employment action

KIT - EMPLYT DISCRIMIN. Title VII PFC of Disparate impact

Title VII: To establish a prima facie case of disparate impact, plaintiff must show that a facially neutral employment practice had a significant discriminatory impact on a protected class. An adverse impact is demonstrated where a selection rate for any race is less than 80% of the rate for the group with the highest rate.

KIT - EMPLYT DISCRIMIN. Title VII Pregnancy Discrimination Act

Title VII: Under the Pregnancy Discrimination Act, unless pregnant employees differ from others in their ability or inability to work, they must be treated the same as other employees for all employment-related purposes. Sex discrimination is permissible only where it is reasonably necessary to the normal operation of the particular business.

KIT CONTRACT S- ANTICIPATORY BREACH REQUIREMENTS

To constitute anticipatory breach under Pennsylvania law, there must be an absolute and; unequivocal refusal to perform or a distinct and positive statement of an inability to do so. An obligor who repudiates a contract prior to performance can retract his repudiation and reinstate the contractual rights and duties of the parties, but the retraction must come to the knowledge of the injured party before he materially changed his position in reliance on the repudiation or indicates to the other party that he considers the repudiation to be final.

KIT CON LAW - 1ST AM

To determine whether a regulation violates First Amendment rights in commercial speech consider: (i) whether the speech concerns lawful activity and is not misleading; (ii) whether the asserted government interest is substantial; (iii) whether the regulation directly advances the governmental interest asserted; and (iv) whether the regulation is not more extensive than is necessary to serve that interest.

KIT - EMPLYMT DISCRIM: Prima facia case of facial discrim under Title VII

To establish a prima facie case of racial discrimination under Title VII, a plaintiff must show that (i) he belongs to a protected class, (ii) he was qualified for the position, (iii) he was subjected to an adverse employment action, and (iv) similarly situated individuals of another race were treated more favorably. An unlawful employment practice is established when the complaining party demonstrates that race was a motivating factor for any employment practice, even though other factors also motivated that practice

KIT -EMPLYT DISCRIMIN. - Title VII Religious PFC

To establish a prima facie case of religious discrimination under Title VII, a plaintiff must show that: (i) he holds a sincere religious belief that conflicts with a job requirement; (ii) he informed his employer of the conflict; (iii) adverse action was taken for failing to comply with the conflicting requirement.

Taxes (KIT)

Transfer of property bt spouses incident to divorce is free from income taxation, provided transfer occurs prior to divorce or within 1 yr after. transferee spouse receives tax basis of transferor spouse and subsq sale of property results in taxable gain if sale is for more than transferred basis

Taxes - DEDUCTIONS

Two sets of deductions: 1. "Above-the-line"; 2. Below the line which gives the taxpayer a choice of either "Itemized Deductions" or Standard Deduction Above the line deductions are deductions from Gross Income to arrive at Adjusted Gross Income ("AGI"). Examples of Above-the-Line Deductions: Ordinary and Necessary Business Expenses- This deduction is used by a business and not an individual. These expenses must be of a usual and customary nature (rent, supplies, utilities, salaries) Cannot deduct illegal bribe or kickbacks NOTE: Excess portion of excessive salaries is not deductible (excessive mean amounts in excess of $1M) Business Interest This represents interest paid on loans for the business. Business Taxes, except federal taxes- This would include state and local income taxes Depreciation: Depreciation is an expense that represents the write off of the cost of the purchase of an asset with a life that exceeds one (1) year. It represents the wear and tear on the equipment or asset. Only used in businesses, not on a personal income tax return. Capital Losses: Up to a maximum of $3,000- Note that you can offset capital gains against capital losses. If you have net gain, you must include it in Gross Income. If you have a net loss, you may deduct it from Gross Income but only up to $3,000. Balance of any losses are carried forward to the next year. Alimony- Amounts paid by one spouse to the other in a divorce. Alimony may be deducted "Above the Line" by the payor. Moving Expenses- May be deducted if incurred in connection with a new job or principal place of work Limited deduction for school loan interest- you can deduct student loan interest (up to $2,500) but only if you're modified AGI is less than $80,000 (starts to phase out at $65,000) ( note that you cannot deduct this interest unless you are legally obligated to pay it and you cannot be claimed as a dependent by anyone else).. The "subtotal" reached after subtracting above-the-line deductions is referred to as Adjusted Gross Income (AGI) SO....GROSS INCOME MINUS ABOVE THE LINE DEDUCTIONS = ADJUSTED GROSS INCOME

Classifications of legacies and devises

Types: Devise = gift or an interest in land Bequest / Legacy = gift of personal property 1. Specific Legacy or devise = gift of particular object distinct from all others 2. General legacy = gift of general economic benefit payable out of ten assets of the best 3. Demostrative legacy = payable 1st from particular prop and then out of the set if that prop is insufficient 4. Residuary = gift of what remains in east agter 1st paying debts expanses, and taxes and after satisfying specific, gen, and demonstrative gifts under will Specific devise or bequest: "I devise Blackacre [07 Cadillac] to my son John." How about "my car" or "all of my bank accounts"? [PBQ2] Demonstrative legacy: "I give sum of $5,000, to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah." General legacy: "I give the sum of $10,000 to my daughter Donna." Residuary bequest: "I give all the rest, residue, and remainder of my property to my wife, Agnes." Intestate property: When there is a partial intestacy for some reason (e.g., all of the residuary beneficiaries predecease the testator, and the case is not covered by the anti-lapse statute).

KIT CONTRACTS: UCC SOF EXCEPTIONS

UCC sales: For the specially manufactured goods exception to the statute of frauds to apply, the party seeking enforcement of the contract must establish: (i) the goods have been specially manufactured for the buyer; (ii) the goods are not suitable for sale to other persons in the seller's ordinary course of business; (iii) the seller has made a substantial start in the manufacture of the goods; (iv) the seller's beginning of manufacture occurred under circumstances that reasonably indicate the goods are for the buyer; and (v) the actions of the seller occurred before the seller received any notice of repudiation.

KIT CONTRACTS - UCC FAILURE TO CONFORM

UCC sales: If goods or the tender of delivery fail in any respect to conform to the contract, the buyer may: (i) reject the whole; (ii) accept the whole; or (iii) accept any commercial unit or units and reject the rest. Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.

KIT UCC - IMPLIED WARRANTIES

UCC sales: Implied in every contract for sale by a merchant who deals in goods of the kind sold, there is a warranty that the goods are merchantable. To be merchantable, goods must at least be "fit for the ordinary purpose for which such goods are used" or "pass without objection in the trade under the contract description" or "are fit for the ordinary purposes for which such goods are used."

KIT CONTRACTS -UCC ROL

UCC: A merchant seller holding a purchased good for pick up by its buyer cannot transfer risk of loss and it remains with him until actual receipt by the buyer, even though full payment has been made and the buyer has been notified that the goods are at his disposal

KIT CONTRACTS -UCC acceptance bt merchants

UCC: Between merchants, a written confirmation of acceptance is an acceptance even though it contains additional terms. The terms become part of the contract unless the offer limited acceptance to the terms of the offer, they materially alter the contract or there is an objection to the terms within a reasonable time.

KIT CONTRACTS - UCC FOR SALE OF GOODS OVER $500 REQUIREMENTS

UCC: Contracts for the sale of goods over $500 must in writing and state a specific quantity to be enforceable, but the quantity term may be satisfied by a contract where the seller agrees to sell and the buyer agrees to buy all of the goods of a particular kind produced by the seller. An output contract is not too indefinite as to quantity since it is held to mean the actual good faith output of the seller.

KIT CONTRACTS - UCC EXPRESS WARRANTIES

UCC: Express warranties by the seller are created by any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain. The precise time when words of description or affirmation are made or samples are shown is not material and language used after the closing of the deal becomes a modification and need not be supported by consideration if it is otherwise reasonable.

KIT CONTRACTS - UNCONSCIONABILITY

Unconscionability: Procedural unconscionability is the absence of meaningful choice on the part of one of the parties. It may exist if the contract is one of adhesion. Substantive unconscionability involves a determination of whether the contract or a specific contractual term is unreasonably favorable to the party asserting it.

KIT - EMPLYT DISCRIMIN - Title VII sex discrim

Under Title VII of the Civil Rights Act of 1964, it is unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's sex. When a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor discriminates on the basis of sex.

KIT CONTRACTS - EXCLUSION OF UCC IMPLIED WARRANTIES

Under U.C.C. Article 2, implied warranties of merchantability and fitness for a particular purpose can be excluded from a contract for the sale of goods where there is conspicuous language such as tatialLgaults" or "as is" or other language that in common understanding calls the attention of the buyer to the exclusion of warranties and makes plain that there is no implied warranty.

KIT -EMPLYT DISCRIMIN. - ADEA & Title VII Exhaustation of Admin Remedies

Under both the ADEA and Title VII, plaintiffs are required to pursue and exhaust certain administrative remedies before filing a civil suit.

KIT CONTRACT S- UCC SPECIALLY MANUFACTURED GOODS EXCEPTION TO SOF

Under the U.C.C.'s "specially manufactured goods" exception to the Statute of Frauds, the party seeking to enforce the contract must establish that (i) the goods were specially manufactured for the buyer; (ii) the goods are not suitable for sale to other persons in the ordinary course of the seller's business; (iii) the seller must have made a substantial start in the manufacture of the goods; (iv) the seller's beginning of manufacture occurred under circumstances that reasonably indicate the goods are for the buyer; and (v) the actions of the seller must have occurred before the seller received any notice of any repudiation.

KIT CONTRACTS - UCC TENDER OF DELIVERY FAILS TO CONFORM

Under the U.C.C., if the tender of delivery of goods fails in any respect to conform to the contract, the buyer may: (i) reject the whole, (ii) accept the whole, or (iii) accept any commercial unit or units and reject the rest. Upon rejection the buyer is relieved of the duty to pay for the goods.

KIT CONTRACTS - UCC IMPLIED WARRANTY OF MERCHANTABILITY

Under the U.C.C., the implied warranty of merchantability arises when a merchant sells a good that causes damage to the buyer because it was not "merchantable," (i.e. it would not pass without objection in the trade or are not fit for the ordinary purpose for which they are made and used). 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, the buyer, in fact, relied on the seller's expertise, and the good failed to meet those needs.

KIT CONTRACTS - UCC EXCLUDE /MOD IMPLIED WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS

Under the U.C.C., to exclude or modify the implied warranty of merchantability or the implied warranty of fitness, there must be conspicuous written language, such as, "There are no warranties which extend beyond the description on the face hereof."

KIT CONTRACTS - TIME WHEN ASSURANCES CAN BE DEMANDED

Under the U.C.C., when reasonable grounds for insecurity arise with respect to the performance of either party, the other may demand adequate assurance of due performance and until he receives such assurance may, if commercially reasonable, suspend any performance for which he has not already received the agreed return.

KIT CONTRACTS - UCC ROL WHEN ID'D

Under the U.C.C., where a contract presupposes the existence of specific goods, and those goods are destroyed through no fault of either party before the risk of loss passes to the buyer, then the contract is voided.

KIT CONTRACTS - UNILATERAL MISTAKE

Unilateral mistake: A party who makes a unilateral mistake that relates to the basis of the bargain, and that materially affects the parties' performance can obtain avoid the contract only when that party does not bear the risk of the mistake, and either (i) the enforcement of the contract would be unconscionable or (ii) the other party knew or had reason to know of the mistake.

Evidence: Relevance

Unless Q is very specific don't raise no evidence is admissible unless relevant and all evidence is admissible unless something keeps it out

Section 7: Free Expression - LOOK INTO PAPS 👀

W:lmtd exception may apply to private conduct In Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Co., 515 A.2d 1331 (Pa. 1986), the Court held that Section 7 of the Pennsylvania Constitution does not grant individuals a right of access for the exercise of free expression on private property, when the owner prohibits all political activities from occurring on the premises. Pennsylvania Supreme Court struck down a City ban on nude erotic dancing under Article I, Section 7 of the Pennsylvania Constitution on remand from The United States Supreme Court, which upheld the ban against a First Amendment challenge. The Pennsylvania Commonwealth Court continues to regard Pap's A.M. as not changing the basic State constitutional analysis pursuant to Article I, Section 7.

WILLS - PRETERMITTED CHILDREN; CODICIL

What if, in the above case, H had executed a codicil after A's birth. In the codicil he named Smith instead of B as executor; in all other respects he reaffirmed and ratified the previous will. Do we have a pretermitted child situation? NO bc of the doctrine of republication by codicil. the effect of codicil is to re-date the will to the date of codicil. no longer is the will viewed as being executed in 1995 b4 A's birth, now treated as executed as date of codicil, after A's birth now no longer pretermitted

Taxes (KIT)

When a divorce or sep agrmt or decree providing such period payments is silent as to the nature of the payments made to a spouse, payments will be presumed as income to recipient and deducible to payor

DUI: Blood Test

When blood is tested, the BAC reading must be based on whole blood. Because a test performed on plasma, serum or a supernatant sample will yield a higher BAC reading, the prosecution must present expert testimony to show what the BAC would have been had the test been performed on whole blood. a. Where a motorist refuses to submit to a blood test, police must obtain a search warrant to obtain that person's blood sample. The fact that alcohol dissipates in the blood stream with the passage of time does not create an exigent circumstance that would justify a warrantless blood draw. b. A motorist who submits to a chemical test has a statutory right to have his physician administer an additional test, the results of which shall be admissible into evidence. Also, any person arrested for DUI may request a chemical test of his breath or blood. Denial of the motorist's request in either situation, where it would have been reasonable under the circumstances for the police to honor the request, will result in the suppression of any test results obtained by the Commonwealth on grounds the motorist was deprived of the opportunity to obtain potentially exculpatory evidence.

KIT CONTRACTS - PER

Where a written document appears to be a contract complete within itself, parol evidence will not be allowed to vary its terms. The presence of an integration clause in a contract is viewed as a conclusive sign that the writing contains the entire agreement and expresses all of the parties' negotiations, conversations and agreements made prior to its execution. However, the parol evidence rule does not prohibit the admission of subsequent oral agreements or modifications.

Wills - Latent Ambiguity

Words clear on its ace, consistent and certain and where uncertainty arises from extrinsic facts or circumstances in relation yo the property bequeathed PE will be allowed in to explain (testimony from lawyer who drafted will, etc) ex. Arthurs Will only incl 2k shares of GP but actually owed 3k when that later 1k share found, latent ambiguity resolved through PE and adds 1k disc to Bob and Joe

Taxes (KIT)

a home office eduction is permitted as an allowable business deduction to extent that such item is allocable to a portion of the dwelling unit that is exclusively used on a regular basis (1) as the PPB for any trade or business of the taxpayer or (2) as a place of bus that is used by patients, clients, or customers in meeting or dealingg w/ the taxpayer in the normal course of his trade or business

Power of Appointment

a power created or reserved by a person (donor) having property subject to his disposition, enabling the donee of the power to designate, w/in such lmts as donor may prescribe, the transferees of the prop or shares in which it shall received Qs involving exercise of a POA resolved by determine donor's intent. POA may be general or special w/ a general power: authorizing donee to distribute to anyone a special (lmt) - may be exclusive - allowing donee to choose among the class member or non-exclusive under whicch the power must be exercised in favor of all class members Broad (general): power exercisable in favor of donee himself, his est, or any person other than donee's creditors or creditors of donee's set lmt (special): power exercisable in favor of a lmtd class of appointees, which may incl donee's creditors and creditors of the donee's est.

Evidence: Character in Criminal Cases - Defendant's Character

a) Defendant's Character Hypo: Def is arrested and is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding young man. The prosecutor, however, has his "rap sheet," which shows 6 prior arrests for robbery, 3 prior convictions for assault, and 2 prior convictions for perjury. i) Assume Def calls a witness who testifies that D has a good rep for peacefulness. Now, what may prosecutor do? May the prosecutor ask the witness in cross-examination: 1. have you heard (or do you know) that Def was arrested six times for robbery? a.Have you heard (rep, admissible) is whats rep in hood b. do you KNOW? =NO (opinion, inadmissible) convictions vs. arrests: a. have you heard... arrests? yes, as long as ended in convictions. what about the perjury? (perjury has nothing to do w/ character w/ re to assault & battery - charge... cannot ask this W about. BUT if D took stand & opened the door re: crime falsi crimes could ask him about Pennsylvania Rule (Pa.R.E. 405(a)): • Cannot ask "do you know" (because opinion is inadmissible). • Can ask "have you heard?" (reputation evidence is admissible) • Can ask about prior convictions, but cannot ask about criminal act if defendant was not convicted She cannot ask about arrests or other violent acts, unless there was a conviction. Prior Bar Exam Question: Criminal Case. Defendant testified about her own good character as a peaceful and law abiding citizen. Prosecution then wanted to question her about a prior conviction for simple assault. Defendant opened the door by testifying about her own good character and cross exam is then allowed about prior convictions for the same relevant trait. Pennsylvania Rule 405(a) is silent as to whether the witness may be asked whether he has heard of the defendant's noncriminal misconduct. Note that violating immigration laws may not constitute criminal misconduct and, thus, if a defendant's character witness testifies that the defendant has a good reputation for being law-abiding, the court may allow the prosecution to cross-examine the character witness as to his knowledge that the defendant is in the country in violation of immigration laws. [Commonwealth v. Kouma, 53 A.3d 760 (Pa. Super. 2012)]

Evidence: Infancy

a) Infancy: Pennsylvania variation: characteristics of immature witness may disqualify.

Divorce: Cruel and Barbarous Treatment

a. Cruel and Barbarous Treatment is defined as conduct endangering the life and health of the innocent and injured spouse. b. The behavior must involve a merciless and savage disposition leading to conduct amounting to actual personal violence, creating a reasonable apprehension of violence and making future cohabitation physically dangerous. c. A single act of sufficient severity may constitute grounds for divorce. FILE A PETITION FOR RELIEF UNDER PFA (CIVIL ACTION) - A Protection from Abuse Order (PFA) protects a person and/or their children from an abuser. It is a civil order, not a criminal order.

PA DEPARTS FROM FED

a. In rem forfeitures i. PA RULE: owners of property entitled to jury trial ii. Follows English common law b. Jury size i. Federal rule: NO constitutional right to 12-member jury; minimum is 6 jurors ii. PA rule: Party entitled to 12-member jury if he so requests (significantly different from federal rule) c. Commonwealth's right to jury trial i. PA RULE: Commonwealth has the right to a jury trial in criminal cases 1) If D waives right to jury trial on guilt issue, even after a plea, Commonwealth can invoke right to have jury determine the issue 2) Commonwealth's right to jury trial trumps D's waiver ii. Unusual in that PA Constitution typically grants more rights to individuals, as opposed to the government

PA ADOPTS FED CONST

a. Informants i. TEST: "Totality of the circumstances" b. Roadblocks i. MAY use drunk-driving roadblocks as part of systematic program ii. Suspending checkpoint to alleviate traffic backup is NOT "unfettered discretion" c. School locker searches i. Students have limited privacy expectation in school setting ii. School officials have leeway when searching for weapons, including: 1) Surprise "safety check" of lockers 2) Hand-held metal detectors at entrance of building d. Anticipatory search warrants i. Definition: warrant based on affidavit indicating that evidence will be found at place to be searched at some point in the future ii. PA RULE: anticipatory search warrants permissible IF factual averment is: 1) Reliable AND 2) Probative as to the likelihood that evidence will be found in the place to be searched when the warrant is executed e. Plain touch exception i. "Plain touch" exception does NOT violate privacy notions of PA Constitution f. Investigative stops i. Unprovoked flight MAY be considered a factor in determining whether reasonable suspicion existed to justify an investigative stop g. Mere Encounters i. A police request to see identification, in and of itself, DOES NOT transform a mere encounter into an investigative detention h. Automobile Searches i. PA adopts federal automobile exception. With probable cause, police MAY conduct warrantless search of automobile; exigent circumstances NOT required. Comm. v. White effectively overruled. i. Protective search during drug bust i. PA rejects "guns follow drugs" presumption 1) RULE: Officers may NOT search effects of those present merely because they're on the premises for a narcotics search ii. TEST: "totality of the circumstances" to determine whether there's reasonable suspicion to search for weapons j. "Open fields" i. RULE: Landowners have NO reasonable expectation of privacy with respect to fields and woods outside curtilage ii. "No trespassing" signs don't change result k. Wired informants OUTSIDE the home i. RULE: NO reasonable expectation of privacy in conversations 1) Limited to conversations outside the home 2) Conversations with wired informant/officer admissible ii. Includes: 1) Surveillance in the office a) No reasonable expectation of privacy in work setting where patient-informant consented to wear wire to record doctor 2) Telephone conversations a) NO reasonable expectation that telephone conversation would not be 2) Telephone conversations a) NO reasonable expectation that telephone conversation would not be

PA ADOPTS FED MIN

a. Waiver of rights by juveniles i. Totality of the circumstances test used to determine whether juvenile has knowingly waived rights and made voluntary confession ii. Whether D had an opportunity to consult with an adult is merely a factor 1) Example: D's waiver invalid where 15-year-old D had low IQ, even though mother consented b. Right to counsel i. Jailhouse informants 1) HELD: D's statement to jailhouse informant (sent in by law enforcement = agent of government) violated 6th Amendment right to counsel ii. Forfeiture of right to counsel 1) RULE: D may forfeit right to counsel and be ordered to proceed pro se 2) Example: Engaging in dilatory conduct in failing to seek private counsel when D had the money and opportunity to do so iii. Waiver of right to defend oneself 1) RULE: Court has discretion to deny D's request to proceed pro se if D's request is untimely 2) Invocation of Miranda-based right to counsel must be made on or after actual or imminent in custody interrogation, rejecting "anticipatory" invocation of Miranda right. 2. PA ADOPTION OF FED MIN a. Right to Confront Witnesses i. PA RULE: literal "face to face" confrontation not required ii. Child victim can testify via closed circuit TV b. Right to be present during voir dire i. PA RULE: right to be "present at all critical stages" does NOT extend to every sidebar conversation with venirepersons c. Right to poll jury i. PA RULE: right to poll jury after verdict in criminal case E. CRUEL AND UNUSUAL PUNISHMENT 1. PA ADOPTS FEDERAL MINIMUM a. Victim impact statements i. PA RULE: Victim impact statements at sentencing NOT cruel and unusual punishment b. Juveniles and mandatory life sentences i. Federal rule: NO mandatory life sentences without parole for juvenile offenders 1) Miller v. Alabama: Age-related factors MUST be considered in determining whether a life sentence without parole can be imposed on D who committed crime while under the age of 18 ii. PA RULE: Life sentences without parole for juveniles NOT categorically banned, as long as age-related factors are considered (pursuant to Miller)

Divorce or Separation Agrmt

a. decree of divorce or separate maintenance or written instrument incident to b. written separation agrmt, OR c. decree (not ref above in a) requiring a spouse to make support payments or maintenance of other spouse * when a divorce or sep agrmt providing periodic payments is silent as to nature of payments, it is presumed: - income to recipient and deductible to payor (above the line)

Taxes (KIT)

although proceeds of a life ins policy generally not GI to beneficiary, they become GI if policy transferred for value. the value of the consideration given by the beneficiary in exchange for the assignment of the policy can be deducted from the proceeds of the policy

Wills - Ambiguities

an ambiguity in a will either: 1. patent or 2. latent patent = apparent on face of the will and is a result of defective or obscure language latent = ambiguity that arises from collateral facts that make the meaning of a written doc uncertain, although the language appears clear on the face of the doc. Plain meaning rule: You cannot disturb the plain meaning of an unambiguous will with extrinsic evidence. in order for the ct to determine whether a doc contains a latent ambiguity, should hear evidence from parties and then decide whether there are objective indications that the terms are subject to differing meanings. ex. Roger Will - Season TKT dispute had 10 tkts @ DOD but 4 tkts issued to him right before his death, totaling 14 tkts. (had devised 5 each J/B so issue was who gets remaining 4?) so here, there is a latent ambiguity bc Roger gave all his tkts to J&B, 5 each but @ time of death owned 14 for upcoming football season when this happens - such evidence indicates a term or phrase set forth in a will subject to diff interpretatooms and therefore has a latent ambiguity, parol evidence is then admissible to explain or clarify ambiguity "irrespective of whether the latent ambiguity is created by the language of the will or by extrinsic or collateral circumstances" PE is accepted to determine the decedent's true intent

Evidence: Incompetency

b) Mental Incompetency: Pennsylvania variation: characteristics of mentally impaired witness may disqualify

Evidence: Rape Shield Rules/ Sexual Assault

c) Rape Shield Rules F.R.E 412: limits admissibility of evidence of rape complainant's sexual history and reputation. PA variation: Criminal cases are governed by statute; pretrial notice is not required. Pennsylvania has no rule governing civil cases; we default to Pa.R.E. 404(b). d) Special Rule for Cases Involving Sexual Assault and Child Molestation F.R.E. 413, 414, and 415 allow the use of prior sexual conduct against defendants in specific types of criminal and civil cases. Pennsylvania has no rules equivalent to Rules 413, 414 and 415. Pennsylvania has no rule allowing use of defendant's prior sexual conduct to prove propensity.

Parolee Rights - Arter

case on appeal: Facts: Arter (parolee) standing on st corner & his parole officer comes up to him and says hey you mind if i search you? he says yes and Parole officer says too bad, finds drugs on him and arter says wait a sec, that vio art. I section 8 and drugs should have been suppressed. State interest / REP / maybe parolee has a diminished expectation of privacy bc of their status? 1. look at the text 2. look at history 3.. look at rights at issue 4. look at sister states 5. notions of privacy vs states compelling interest Commonwealth v. Arter the Court held that the exclusionary rule derived from Article I, Section 8 of the Pa. Constitution, and the Fourth Amendment of the U.S. Constitution, applies to parole and probation revocation hearings. While the Supreme Court of the United States has declined to extend the exclusionary rule to proceedings other than criminal trial proceedings, the court here held that Article I Section 8 of the Pa. Constitution offers broader protection than the Fourth Amendment, and that after an Edmonds analysis, the appellant was entitled to relief based exclusively under the Pa. Constitution.

PA EVID. R. 609 - Impeachment by Evidence of Conviction of Crime

for purposes of attacking ANY W, evidence that W has been convicted of a crime, whether by verdict, guilty plea, or nolo contender, shall be admtd if it involved dishonesty or false stmt generally - conviction must be w/in 10 yrs *consistent w/ prior pa practice allowing impeachment by proof of any conviction if crimen falsi crimen falsi: *robbery

Taxes (KIT)

general rule that a taxpayer's costs re: commuting from residence to place of bus is taxable not deductible as bus expenses BUT expenses of traveling to temp work locations, or from a home office to one or more work locations, or expenses that are essential to continuance of an employee's occupation may be deductible

Taxes (KIT) - Battering

if services pd other than in $$, FMV of the prop or services taken in payment must be incl in income controlling test: origin and character of a claim w/ respect to which a expense was incurred, rather than its potential consequences on the taxpayer re: whether the expense was business or personal and whether it is deductible KIT

❗️Justification: self defense

in PA: Use of force upon or toward another person justifiable when actor believes such force immediately necessary for purpose of protecting self against use of unlawful force by another LIMITATIONS ON USE OF FORCE: - not justifiable to resist arrest being made by kwn PO even if arrest unlawful OR - resist force used by possessor of prop DEADLY FORCE - PA only justifiable when believes necessary to protect against death, serious bod injury, kidnaping or sexual intercourse compelled by force or threat EXCEPTION: OPP TO RETREAT: -may not use DF is actor knows that can avoid necessity of using force w/ complete safety by retreating, except actor not obliged rt from his dwelling / work unless he was initial agg EXCEPTION TO DUTY TO RETREAT / PA STAND YOUR GROUND - not engaged in crim activity or ill poss of firearm, & is attacked in any place in which actor would otherwise have duty to retreat, DOES NOT HAVE TO and may stand his ground and use force incl deadly, if: 1. has right to be in place where attkd 2. believes imm nec to do so to protect himself against death, ser bod injury, kn or SIC by force or threat 3. person against whom force used displays or otherwise uses a firearm or replca of a firearm or any weapon

Wills - CL Ademption Rule

in absence of a contrary statute, when subject matter of a specific gift not owned @ T's death, gift in will is adeemed --meaning, beneficiary takes NOTHING :( Ademption does not apply to demonstrative legacies - instead when this happens, we will shake down the est for something else and make the gift that Addl rules: - Intent immaterial BUT -If Will executed before T declared incompetent: If specifically devised property is sold by conservator, or if condemnation award or insurance proceeds relating to the property are paid to the conservator, the specific devisee has a right to a general legacy equal to the net sales price, condemnation award, or insurance proceeds unless testator's disability has been adjudicated to have ceased and testator survives the adjudication by one year. A specific devisee has the right to the remaining specifically devised property and: - Any balance of purchase price owing from purchaser when contract is still executory at T's death. (At common law, equitable conversion would apply, and T would no longer own real property, but merely a claim to the remaining purchase price.) [PBQ] - Any amount of condemnation award for taking of the property, to the extent unpaid at T's death. - Any amount of fire or casualty insurance proceeds unpaid at death. Classifications: Specific devise or bequest: "I devise Blackacre [07 Cadillac] to my son John." How about "my car" or "all of my bank accounts"? [PBQ2] Demonstrative legacy: "I give sum of $5,000, to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah." General legacy: "I give the sum of $10,000 to my daughter Donna." Residuary bequest: "I give all the rest, residue, and remainder of my property to my wife, Agnes." Intestate property: When there is a partial intestacy for some reason (e.g., all of the residuary beneficiaries predecease the testator, and the case is not covered by the anti-lapse statute).

Intentional interference w/ prospective K relations

in order to sustain a successful cause of action - need: 1. prospective k r-ship 2. purpose or intent to harm pl by preventing the contractual r-ship from occurring 3. the absence of privilege or justification on the part of the D 4. Actual harm or damages from D's conduct privilege/ or justification re: 1st amendment unsuccessful to false statements known by speaker

Wills - putative father

inheritance? no, unless - Frank marries Maude. - Frank holds Cliff out as his and either receives him into his home or provides him with support. - Clear and convincing evidence of paternity.

DO - Disd Conduct w/ Fighting Words

intending to cause public inconvenience, annoyance, or alarm or R creating a risk thereof

Taxes (KIT)

is an Amt was deducted on a prior yr's tax return, a subsq recovery by the taxpayer of such act must be incl in GI in the yr the recovery is received. a refund of overpaid state income taxes is income in the yr the check is rcvd

Wills - Abatement

money needed to pay expenses and claims raised by selling: intestate prop --> residuary es. --> gen gifts & finally subject matter of demonstrative and specific gifts in that order Qualification: specific gifts to spouse & issue abate last

Evidence: RELEVANCE

must be relevant to be admissible: Evidence is relevant if it has any tendency to make a material fact more probable or less probable than it would be w/out the evidence. Discretionary or Policy-Based Relevance: PA variation: slightly diff balancing test F.R.E. 403: evidence may be excluded if unfair prejudice or other negative SUBSTANTIALLY outweighs probative value. vs. Pa.R.E. 403: evidence may be excluded if its negative qualities OUTWEIGH its probative value; the rule is less biased in favor of admitting evidence despite its negative qualities. (PA ELIMINATES "SUBSTANTIALLY") Public Policy Based Exclusion -By statute, guilty pleas for motor vehicle violations are always inadmissible in subsequent civil litigation arising out of the same violation or the same facts or circumstances. -Benevolent Gestures: Actions, conduct, statements or gestures by a health care provider that covey a sense apology, condolence or compassion are inadmissible as evidence of liability. But statements of negligence or fault pertaining to an event are admissible.

MURDER IN THE FIRST DEGREE ESSAY ANSER❗

most serious degree of murder - first degree murder as ___ acted w/ premeditation and had SI to kill when cmtcmurder. Criminal homicide constitutes murder in the first degree when it is cmtd by an intentional killing an intentional killing is a willful, deliberate, and premeditated killing. PA has interpreted that a WDPK is one in which is done w/ SI to bring about the death of the V. SI to kill may be inferred by the manner in which the killing is accomplished by the D - i.e. the use of a deadly weapon on a vital part of the victim's body. in order for cmwlth to sustain a 1st degree murder verdict, it must prove: 1. human being unlawfully killed by D 2. killing was willful, deliberate and premeditated (WDP); and 3. D acted w/ SI to kill (inferred from manner of killing by use of deadly weapon on vital part of V's bod) vital part: head

Taxes (KIT) - Casualty Insurance Payment for total loss of property (Involuntary Conversion)

must be rptd as gain in the same manner as a voluntary sale to extent payment exceeds the adjusted basis (AB) of the property Involuntary Conversion RULE: No gain or loss is recognized if property involuntarily converted due to theft, fire, seizure, requisition or condemnation is converted into property that is "similar or related in service or use." If the property lost or damaged is converted to money, gain or loss is not recognized if the taxpayer purchases replacement property that is "similar or related in service or use" within two years from the date of involuntary conversion.Gain or loss will be recognized, however, to the extent that the money received exceeds the cost of the replacement property.

DUI: Breath Test vs Blood Tests re warrants

not unlawful to refuse to submit to a breath test but such refusal can be used to (1) enhance D's sentence (2) as evidence in DUI prosecution or (3) as a basis for automatically suspending D's driving privilege vs. BLOOD TESTS: Warrant required for Blood Tests via 4th Amendment - can only apply civil penalties, unconstitutional to apply criminal penalties Duty of Hospital, via blood tests: a hospital must take a blood sample and transmit it to an approved lab w/in 24hrs for testing, w/out having to obtain a motorist's consent, if: (1) the motorist was involved in a MV accident & requires med treatment in an ER room & (2) PO have PC to believe a vio of DUI statute was involved test results must be related upon request to gov offs or agencies. the motorist, his atty, or his physician. the hospital and its employees are immune from civil and criminal liability for the blood w/drawal and in reporting the BAC results to the PO When Warrant required for TEST RESULTS: Hospital Draws for Independent med Purpose --> cannot subpoena hospital or simply ask for it - this is illegal and subject to suppression

Will Signature Requirement

requires: will signed @ END Any wording added after the signature of testator NOT effective to supplement, negate, or alter the provisions of the will above the signature Any wording after signature does not invalidate anything preceding signature (above) ex. #1 7/15: Roger trying to amend his will and keep Melanie from inheriting larger portion of residuary failed bc he didn't resign after adding under OG signature so need TWO signatures will signature - additions NEW signature then you'll be ok

Kidnapping ❗

taking away❗ unlawfully removes another a substantial distance under circumstances from place where found, or unlawfully confines another for substantial period in a place of isolation, w/ any of the following intentions: 1. to hold for ransom or reward, or as shield or hostage 2. to facilitate commission of any felony or flight thereafter. BARRK 3. to inflict bod injury on or o terrorize victim or another 4. to interfere w/ performance by public officials of any gov or political function ex. employees @ jewelry store no moved from location of store or confined for a substantial period in isolation during robbery so no kidnapping!厶

Murder in the Second Degree - Felony Murder BARRK

the act of killing another person during the commission of a felony. The sentence for this crime is mandatory life in prison without parole. Common underlying felonies which trigger the felony murder rule include: drug trafficking/dealing, robbery, carjacking, arson, and kidnapping. Pennsylvania's felony murder rule applies to both principals and accomplices. For example, under PA law, an accomplice to the crime of robbery (the get-away driver) can be found guilty of felony murder where a bank security officer is shot and killed by the principal actor (the individual who actually committed the robbery).

Wills - Revival or Revoked Wills

under PA's Anti-revival statute, a revoked will can be revived only by re-execution or by executing a codicils that republishes the will Oral republication NOT valid. however, a will revoked by a subsq. will can be revived by a written revocation of the layer will that declared the T's intent to revive his prior will Ex. In 2005, T executes WILL-1 which devises his residuary estate "in trust to pay the income to my grandson G until he attains the age of thirty, at which time to distribute the principal to G." In 2010, T executes a new will, WILL-2, "hereby revoking all wills heretofore made by me." WILL-2 devises his residuary estate to G outright. Important part of the story: T does not destroy WILL-1. In 2012 T has yet another change of heart. He has his housekeeper bring both wills to him, reads them both and tells the housekeeper, "You know, I think the property should be held in trust for G after all." With this he destroys WILL-2 with the intent of reviving WILL-1. T dies in 2014. He is survived by G and by a daughter, S, whom he detests. Who takes what? [PBQ] a. Has WILL-1 been revoked? Yes, in 2010 @ execution of W2. W1 has no legal effect b. Has WILL-2 been revoked? Yes, destroyed w/ intent by physical act c. Revival: Did revocation of WILL-2 "revive" WILL-1? No, PA requires re-execution or republication by codicil d. Since Will-1 is not revived, what other issue is raised by these facts? can get W2 back w/ DRR complying w/ will requirements under mistaken belief of W1 revival

DUI: Driving under DUI Susp

where a person's op priv has not been restored for DUI test: indiv rcvs susp notice for 1yr from PENNDOT - after 1yr, starts driving again and is pulled over for DUS-DUI -- will be convicted because not driving is not enough and is insufficient to lift susupension bc clock actually hasnt started, instead must surrender license or in lieu or liscense send aff to PENNDOT acknowledging suspension - THAT STARTS THE CLOCK Restoration requirements: in addition to serving suspension, the motorist must also comply with certain restoration requirements: i.e. ay fee, show insurance for any vehicles registered in your name, once done and sup time served - PENNDOT will then send motorist notice that it is ok to drive - if driving before time, will subject motorist to DUS-DUI Charge most DUI carry mandatory op privilege susp ranging from 1yr (for ungraded misdemeanors and misdemeanors of 2nd degree) - 18mos for misdemeanors of 1st degree Collateral civil consequence- not part of criminal sentencing. ct doesnt order suspension - they send notice of the conviction to PENNDOT who then sends the susp notice to driver who has right to appeal in courts civil juris

PA EVIDENCE DIFFERENCES

•• Impeachment by prior conviction - Rule 609 - PA MORE RESTRICTIVE • Admissibility of expert testimony - Rule 702 • Prior inconsistent statements - Rule 801 and 803.7 • Business records hearsay exception - Rule 806(6) • Learned treatise hearsay exception - Rule 803(18) Rule 405. Methods of Proving Character - PA -NO OPINION TESTIMONY • Rule 608. Evidence of Character - PA permits character for truthfulness to be shown only by rep evidence, whereas federal court admits opinion testimony on the subject. • Rule 613. Prior Statements - PA, extrinsic evidence of a prior inconsistent statement can be admitted only if the examiner has first given the witness the opportunity to explain or deny the prior statement, whereas in federal court the witness must be given the opportunity to deny it, but not necessarily before extrinsic evidence is admitted. • Rule 705. Disclosure of Facts Underlying Opinion - Pennsylvania requires an expert to explain the facts underlying his/her opinion, but federal court does not.

❗BURGLARY (10x)❗

❗BURGLARY (10x)❗ G if w/ intent to cmt crime therein, person enters bldg or occupied structure or separately secured or occupied portion thereof that is adapted for ON accommodations in which @ the time of offense any person is present. BURGLARY DEFENSE: @ time of commission of offense bldg or structure was abandoned, the premises was open to public or actor was licensed or privileged to enter

Homicide definitions❗

❗deadly weapon: any firearm, loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bod injury, or any other device or which in the manner used or intended to be used, is likely to produce death or serious bod injury ❗serious bod injury: bod injury that creates a substantial risk of death or causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ ❗INTENTIONAL KILLING: killing by means of poison or by lying in wait, or by any kind of willful, deliberate, and premeditated killing ❗PERP of a FELONY: act of D in engaging in or being an accomplice in commission of, or an attempt to cut, or flight after cmting, or attempting to cmt: BARRK or deviate sexual intercourse by force or threat or force principal: person who is the actor or per of crime CRIM HOMICIDE: Intentionally, knowingly, recklessly or negligently causing death of another human. crime homicide classified as murder, vol Man or in man

PA Criminal Code - 3 Degrees of 🔪❗

🔺1st - Murder in 1st Degree: cmtd by an intentional killing (w/ SI) - killing by means of poison or by lying in wait or by any other kind of willful, deliberate and premeditated killing. WD&P killing = one where actor has a SI to bring about death of V. Cmtd by one who is conscious of his own purpose and intends to end life of his V. ❗SI to kill best is inferred by the D's use of a deadly weapon on a vital part of V's body (if deadly force if knowingly applied by actor to person of another, intent to take life evident as if actor stated intent to kill @ time force applied) 🔺2nd - Murder in 2nd Degree: cmtd while D engaged as a principal or an accomplice in the perp of a felony 🔺3rd - Murder in 3rd Degree: all other kinds of murder, which equals a felony of the 1st degree ❗murder that is neither intentional nor cmtd during a felony ❗ no SI to kill but does require MALICE - MALICE is distinguishing factor bt murder and manslaughter ❗like SI, malice can be inferred from the attending circumstances MALICE = either: 1. an express intent to kill or inflict great bod harm; or of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty indicating unjustified disregard for probability of death or great bod harm and an extreme indiff to value of human life