JULY 2015
PENNSYLVANIA BAR EXAMINATION
Sample Answers
Pennsylvania Board of Law Examiners
601 Commonwealth Avenue, Suite 3600
P.O. Box 62535
Harrisburg, PA 17106-2535
(717) 231-3350
www.pabarexam.org
©2015 Pennsylvania Board of Law Examiners
This page intentionally left blank.
Performance Test: Sample Answer
I.
Legal Argument
A.
Standards of Review for Judgment on the Pleadings
The Court should deny the plaintiff’s motion for a judgment on the pleadings. Such an
action is limited to consideration of a complaint, answer, reply, counter-reply, and preliminary
objection and response. Rule 1017. All of the opposing party’s well pleaded allegations must be
viewed as true and only those facts admitted may be construed against it. Ithier. A fact is admitted
by express admission, failure to deny specifically, or general denial except when the party states it is
without sufficient information to answer after having conducted a reasonable investigation or no
responsive pleading was required. Rule 1029. After considering the pleadings, if there is no material
fact at issue and a trial would be a fruitless exercise given the state of the law, a judgment should be
granted. Ithier.
B.
Analysis
1.
RES did not waive its Rights
Here, there are material facts at issue concerning whether RES’s September 23rd email
constituted a waiver and whether RES’s employee, Ann David, had the authority to grant a waiver.
Typically, a waiver is a question of fact for the jury, but when the only evidence is a writing, like
here with Ms. David’s email, the construction, interpretation, and determination of the existence of a
waiver becomes a question of law for the judge. Hanover.
A waiver may be express or implied. Brown. A waiver is intentionally relinquishing or
abandoning a known right, claim or privilege. Brown. There must be a clear, unequivocal, decisive
act where the person knows of the right and has the evident purpose of surrendering it. Brown.
Otherwise, the implied intent to waive a right is established in situations involving circumstances
equivalent to an estoppel. Brown. The implied waiver against a party whose rights would be injured
requires an inducement to prejudice where the other party relied on the inducement to its detriment
to show their understanding that a waiver existed. Brown.
Here, RES sent an email to Aaron so the determination of a waiver is a question of law. The
email specifically waived the right to charge late fees if Aaron had a cancelled check and it sent a
copy of or if it sent payment as soon as possible. The email did not reference RES’s other available
remedies so there was no express intent to waive them. Also, the late fee waiver was conditioned.
It is unclear whether RES was fully aware of the right it was potentially surrendering. RES
was represented by Ms. David here and she was a low level employee. RES asserts Ms. David had
no authority to waive rights so she may not have even been aware of them since they were beyond
her scope.
Finally, Aaron did not demonstrate implied waiver in the pleadings since Aaron did not even
allege that it relied on RES’ email to its detriment. Aaron was already over 20 days late so RES had
1
the right to assert any of its remedies without notice under the agreement. Therefore, Aaron could
not have been counting on continued electric service. The email also conditioned the sole waiver
granted so Aaron knew it had to pay as soon as possible to avoid late charges.
The plaintiff asserts a waiver existed as supported by the ruling in Hanover. There, the court
determined a letter was a waiver. The letter contained a request for payment if it had not yet been
made. It said “possibly this was an oversight on your part, and if so, we will appreciate your
remittance by mail”. The email in this case contained no such blanket language. It simply
demanded payment. The email also made a specific, though conditioned, waiver of one available
remedy. The letter in Hanover made a blanket waiver by asking for remittance.
2.
The question of whether Ann David had authority to make a waiver of RES's
contractual rights is a disputed fact which precludes granting the motion for
judgment on the pleadings.
Taking RES's well-pleaded complaints as true and considering against RES only those facts
specifically admitted, Ithier, the Court should find that material facts remain at issue as to whether
Ann David had authority to waive RES's contractual rights, as alleged by Aaron. The burden of
proving that a corporate agent had authority to take a particular course of action rests with the party
claiming that such authority existed. See Gillian v. Consolidated Foods at 13. When the existence of
authority depends on the interpretation of a written agreement, the question of the extent of that
authority is for the court. Gillian. Where, however, the authority derives not from a written
agreement but is implied from the conduct of the parties or established by witnesses the questions of
the existence and scope of authority are for the trier of facts. Id. Here, Aaron purports to find
authority not from a written agreement between Ann David and RES, but rather argues that authority
is implied by Ms. David's title and the email sent by her on September 23, 2013. Therefore,
accepting as true RES's denial and well-pleaded allegation that Ann David did not have such
authority, see "New Matter," paragraph 13, the Court should find that this material fact is still at
issue and must be decided by the trier of fact.
Although the court in Gillian v. Consolidated Foods does find that the term "manager"
implies extensive authority, Aaron's reliance on that case errs in several regards. First, there are
substantial differences in fact. "General Manager," the title of the employee in Gillian, is a much
broader term than "accounting manager." A trier of fact could find a difference in the scope of
authority of those two positions. Additionally, the court in that case simply found that the trier of
fact had sufficient evidence to make the determination that the general manager had the authority in
question. Here, Aaron is asking the Court to make a decision before the trier of fact even considers
the issue at all. Taking RES's denial and its well-pleaded allegation that Ann David did not have the
authority to make a waiver as true, the Court should deny Aaron's motion for judgment on the
pleadings.
2
Question No. 1: Sample Answer
1.
Roger's notation on the will has no effect on the distribution, and John's share of the residue
remains 5%. In Pennsylvania the general requirements for the creation of a will are that the will
must be in writing, signed at the bottom (or logical end of the will) and the will must make a
testamentary disposition. Roger's original will is valid because Roger signed the will at its logical
end, and the will makes a testamentary disposition. According to the valid will, John will receive
5% of the residue of Roger's estate. Later, Roger made a handwritten notation on the will, but the
handwritten notation is not effective because it was below the signature and the will was not reexecuted. For valid execution Pennsylvania requires only the testator's signature at the logical end
of the will. Any writings following the signature are ineffective. John will still receive 5%, and the
handwriting notation has no effect.
2.
The issue is whether or not the additional season tickets that were given to Roger after his
death should fall into his residuary estate or should follow the rest of the tickets.
John and Bill will receive the additional four tickets. Under Pennsylvania law, a will should
be analyzed by giving the language the plain meaning of its words under the will. The language
itself should only be disturbed if there is an ambiguity in the terms of the will. Parol, or outside
evidence should only be admitted if there is some ambiguity in the terms of the will itself. A patent
defect means there is some ambiguity in the text of the will. A latent defect comes from evidence
outside of the will.
Here, there is no ambiguity on the face of the will but there is a latent ambiguity, because
Roger's will states that he is leaving ALL of his tickets to Bill and John, however the will itself only
disposes of 10 tickets and there are there are 14 Burgher's season tickets. This constitutes a latent
defect with the will because there is an ambiguity as to how the assets of the will itself should be
bequeathed because the will itself states that there are 10 tickets, and there are 14. Because this is a
latent ambiguity, the court should use parol evidence to clear up the terms of the will and where the
tickets should go. While signing the will, Roger told his attorney Larry that it was his intention that
he wanted to give everything related to the Burghers to John and Bill because they are avid fans and
they would appreciate the items. This should be used to indicate the testator's intent was that all of
his Burghers related items should go to John and Bill and should not fall into the residuary to his
wife Melanie. Presumably, the additional four tickets will be split between Bill and John equally the
way they were in Roger's original will.
3.
The federal income tax consequences in 2015 would be income for Melanie as spousal
support and an above the line deduction for Roger. Income is all income from whatever source
derived. Income must be included on one's personal income tax return unless there is a specific
provision in the Internal Revenue Code (IRC) that allows someone to exclude it. Similarly,
deductions allow a person to take a deduction for having to pay certain expenses but only if they are
specifically in the code.
Alimony/spousal support falls under the IRC as income if it is pursuant to a written divorce
or separation agreement, the spouses are living separate and apart, it clearly says it terminates on the
3
death of the payee spouse and the agreement does not say it is excludable as income or as a
deduction. Further, it must be in kind meaning cash or check; not property.
Here, Roger and Melanie have a written agreement and are separated. They are no longer
living together because Melanie left the home in December 2014. Roger is paying Melanie with a
check. This is clearly for her support and it is clearly "for as long as she lives."
The next question is whether they are actually separated - the IRC seems to classify this
simply as living separate and apart and having an agreement. Therefore, it is okay that they are not
yet divorced.
Therefore, Melanie would list this as income on her tax return and pay federal tax on it and
Roger would take an above the line deduction in 2015 for the $2,000 per month that he paid her.
4.
Seamus violated the Rules of Professional Conduct regarding the fee agreement. Under the
Rules of Professional Conduct, an attorney setting up a fee agreement with a prospective client is not
allowed to accept a contingent fee based upon the securing of a divorce or alimony payments.
Additionally, the contingent fee agreement must be in writing. Here, Melanie and Seamus orally
agreed to the contingent fee agreement and did not put it in writing. Additionally, the contingent fee
agreement was based on the amount of alimony Melanie would obtain in the divorce proceeding,
which is also a violation of the Rules. Thus, Seamus violated the Rules regarding the fee agreement.
4
Question No. 2: Sample Answer
1.
In addition to assault and battery, Rob should have included false imprisonment and
intentional infliction of emotional distress in his complaint against Tim and he will likely be
successful in both of these intentional tort claims.
The issue is what intentional torts should Rob have included in his complaint, aside from the
tort of assault and battery?
In order for a Plaintiff to prove false imprisonment, they must prove that the defendant acted
with the intent to confine another within fixed boundaries, without their consent, commits an act that
does in fact confine another in fixed boundaries, with no reasonable means of escape and the
plaintiff is either aware of the confinement or hurt by the confinement.
Here, Tim forced Rob into a nearby closet and locked the door which meets both the intent to
confine and actual confinement elements required. Additionally, Rob tried to force the door open
but could not, which indicates that there was no means by which Rob could escape. Rob was in the
closet for a period of 20 minutes. Furthermore, Rob was clearly aware of the confinement but also,
he was injured by it because he suffered "panic attacks" and was "diagnosed with severe anxiety as a
result" of the incident.
A claim for intentional infliction of emotional distress requires that a Plaintiff prove that the
defendant intentionally engaged in extreme and outrageous conduct, beyond all decency tolerated by
a civilized society, that resulted in severe emotional distress to the plaintiff and the plaintiff was in
fact harmed. Emotional distress is enough for the harm element.
Here, Tim physically attacked Rob, forced him against a wall, placed him in a headlock,
forced him into a nearby closet and locked the door. Rob was locked in the closet for a period of 20
minutes. Tim also warned Rob that "he would rot in there", meaning the closet, and "threatened to
bury Rob's body under a foot of concrete on the property and it would never be found." All of these
actions demonstrate that Tim engaged in extreme and outrageous conduct which would be
considered beyond the bounds of all decency tolerated by a civilized society when all Rob had
allegedly done was steal a new zero turn lawn mower. Even if Rob stole the mower, this by no
means justified Tim acting in such a manner. Additionally, Rob suffered severe emotional distress.
The facts indicate that Rob suffered from physical bruises on his neck, panic attacks, was diagnosed
with severe anxiety, as well as, was prescribed anti-anxiety medication due to anxiety and panic
attacks as a result of the incident.
2.
Rob should file a motion with the court requesting it grant permission for the discovery of the
financial information to support Rob's claims for punitive damages.
Under the Pennsylvania Rules of Evidence, a defendant's financial information and wealth is
generally not discoverable as it is unlikely to lead to admissible evidence. An exception exists when
a plaintiff is seeking punitive damages against the defendant and the court grants an order permitting
the discovery. Punitive damages are designed to punish and deter certain kinds of conduct. As a
result, the defendant's wealth is relevant in determining the amount that would be necessary to deter
5
future conduct. Generally, punitive damages are available when a defendant injures a plaintiff
willfully or maliciously, by outrageous conduct.
As discussed in the previous question, Tim likely committed the intentional torts of battery,
assault, false imprisonment, and IIED against Rob. All of this conduct was willful and outrageous.
Rob's attorney should seek punitive damages against Tim and should request the court to permit
discovery of Tim's financial information. Because Tim acted willfully or maliciously in injuring
Rob, Rob will likely succeed in convincing the court to permit discovery of Tim's financial
information.
3.
Tim can assert a counterclaim against Rob for conversion for the damages to the mower.
Conversion requires damages to be shown. Similar to trespass to chattels, both intentional torts
require the person to show that there was interference with one's possession of the property. The
difference between trespass to chattels and conversion is the seriousness of the interference and
therefore, the damages. Where the interference is substantial or for a long duration, such as where
something is beyond repair or destroyed, the person can sue for conversion. Damages here are the
fair market value to replace. Where interference is minor, then this is trespass to chattels, and the
damages are simply repair damages.
Here, Tim can assert that Rob had the mower in Rob’s sole possession and control and that
despite being recovered in the storage unit, it is so severely damaged beyond repair that this is
substantial interference now with his possession. He is not able to repair it and therefore this is
conversion. Tim will likely succeed and get the fair market value of the mower, here $4,800.00.
Because Rob’s possession resulted in the virtual destruction of the property, Tim will prevail on his
suit for conversion.
4.
Impeachment
Tim's prior record should be excluded. Rob's prior record regarding possession of a
controlled substance should be excluded, but the misdemeanor conviction for receiving stolen
property eight years ago is admissible for impeachment. Under the Pennsylvania rules of evidence,
to be admissible, all evidence must first be relevant. Relevant evidence is any evidence that might
tend to prove or disprove a material fact at issue in a case. However, even some relevant evidence
may be excluded if its probative value is outweighed by its prejudicial value. Certain types of
evidence are always relevant to impeach a testifying witness. For example, credibility of a testifying
witness is always at issue, and is thus always relevant. Thus, prior criminal records may be relevant
to impeach a witness on the stand. Prior crimes related to dishonesty not too remote in time (more
than ten years ago) are admissible to impeach a witness. If a conviction for a crime of dishonesty
(crimen falsi) occurred within that ten year span, a trial judge has no discretion but to admit it into
evidence.
Here, Tim's prior record does not include any crimes of dishonesty, which would
automatically make them relevant were he to take the stand to impeach his credibility--i.e. his
honesty. Although Tim is currently serving probation for assault related to this claim, this evidence
will not be admitted because it is not a crime of dishonesty that occurred within the past ten years.
Likewise, Rob's prior drug charges will not be admitted for similar reasons. However, in
Pennsylvania, receipt of stolen property is a crime of dishonesty (crimen falsi), and it is per se
6
admissible to impeach the credibility of a testifying witness. Thus, the only portion of either record
that should come in is Rob's misdemeanor for receiving stolen property.
7
Question No. 3: Sample Answer
1.
The charge of burglary will be supported by the facts presented and the most serious
homicide charge supported by the facts is murder of the second degree.
1 (a). Burglary in Pennsylvania is the entering of a building, occupied structure or separately
secured occupied portion thereof with the intent to commit a crime therein. It shall be a defense to
the charge of burglary if the building was, at the time of the entering, open to the public or the
individual so charged was licensed or privileged to enter. The intent to commit the crime must
accompany the entering. In the facts provided, Connie witnessed Homer breaking into the house
through the kitchen door. There are no facts provided to suggest that Homer was privileged or
authorized to do so, and since the building was not a business it is clear that it was not open to the
public at the time. Homer’s entrance through the kitchen door will constitute an entering for
purposes of the burglary charge. His entrance must also be accompanied by an intent to commit a
crime as well, and from the facts presented his intent was to commit a theft. It does not matter that
he was unsuccessful in committing the theft, all that is required is that he had the requisite intent at
the time that he broke into the home, and in this instance, Homer's intent to steal money will suffice
to support a charge of burglary. Homer disclosed to the police, upon his arrest, that he intended to
steal money when he broke into the home. Therefore, a charge of burglary will be supported by the
facts.
1 (b). Murder of the first degree is the willful, premeditated, intentional killing of another. The
facts of this case do not support a charge for First Degree Murder. Murder in the Second degree in
Pennsylvania is Felony Murder and arises when a principal, or agent, during the perpetration of
certain enumerated felonies kills another in the course of the commission of the felony or during
escape thereafter. The felonies that will support a charge of Second Degree Murder are burglary,
arson, rape, robbery and kidnapping. Because the charge of burglary is supported by the facts,
Homer will be charged with Second degree murder. For second degree murder it is not a
requirement that the perpetrator intended to cause the death, it is enough that in the commission of
the underlying felony they started a chain of events that led to the death of the victim. Homer's push
started a chain of events that led directly to the death of Connie and will be enough to uphold a
charge of second degree murder. Second degree Murder is the most serious homicide charge with
which Homer can be charged.
2.
The prosecutor should argue that the statement should come in as an exception to the hearsay
rule because it is a present sense impression. Hearsay is an out of court statement that is being
offered for the truth of the matter asserted. A present sense impression is an exception to the hearsay
rule. For a statement to qualify as a present sense impression, it must be made as a declarant is
perceiving an event, or immediately thereafter. It must be made so close in time to the event
described that the declarant could not have thought up a motive to lie.
Here, Connie's statement is hearsay because it is an out of court statement that is being
offered to prove the truth of the matter asserted. The statement is admissible however, because it
falls within the present sense impression exception. Here, Connie was relaying what she was seeing
to Andre as she was seeing it. There was no delay between her perception and her statements. This
makes the statement highly reliable and fits it into the present sense impression exception to the
8
hearsay rule. Therefore, the prosecutor should argue that the statement should come in as a present
sense impression, and he will be successful.
3.
$35,000 of the insurance money will be counted as marital property for the purposes of
equitable distribution in the divorce action between Monique and Andre.
Marital Property is all property acquired in the course of a marriage, and includes the
increase in value of individual property which accumulated during the marriage. Excluded from
marital property is any property bought by either spouse prior to the marriage, or property received
during the marriage through gifts (except between spouses) bequests, inheritances, or any property
acquired in exchange for individual property. The home was owned by Andre prior to the marriage
and will be deemed to be individual property, but any increase in value of the home will be treated as
marital property for the purposes of equitable division. The home at the time of the marriage was
valued at $250,000 and at the time that it was destroyed by fire, was valued at $250,000. There is no
increase in value to the home and therefore all of the proceeds from the insurance money for the
destruction of the home will be deemed to be Andre's.
The table is similarly individual property, as it was received by Monique as a gift years
before the marriage. It does not matter that she only moved it into the home after the marriage. At
the time of the marriage, the table was worth $15,000. At the time the table was destroyed by the fire
it was worth $50,000. The increase in value of the table of $35,000 will be considered marital
property and will be subject to equitable distribution.
Finally, the fact that the items were destroyed by the fire and the value of them was paid out
in insurance proceeds makes no difference to the analysis. Individual property includes any property
that was acquired by exchange of other individual property. The cash payout was acquired in
exchange for the house and the table, both individual property to Andre and Monique, respectively.
The increase in value acquired; however, is marital property. Therefore, $35,000 will be considered
marital property and subject to equitable distribution.
9
Question No. 4: Sample Answer
1.
The challenge to the community service requirement will likely fail. The Fourteenth
Amendment right to substantive due process requires that the state government properly afford
persons their right to life, liberty, and property. The Fourteenth Amendment makes applicable
constitutional rights to the states. In this instance, the School Board is authorized pursuant to the
State Y statute, and is charged with the supervision of all the public schools in the school district.
Therefore, it can be liable for a Fourteenth amendment violation as the Board is a state actor.
Depending on the right invoked, a court reviewing an ordinance for a due process violation
will apply either the strict scrutiny standard or the rational basis standard. When applying strict
scrutiny, an ordinance is upheld only if the government ordinance is narrowly tailored and necessary
to achieve a compelling government interest. When applying rational basis scrutiny, an ordinance is
upheld only if the ordinance is rationally related to further a legitimate government goal. The right
to raise one's child is a protected liberty interest and may be fundamental. If it is a fundamental
interest it would be reviewed under the strict scrutiny standard. Rights not specifically protected by
strict scrutiny review are reviewed under the rational basis test.
The ordinance designates the School Board as the entity in charge of supervision of public
schools, thus the School Board is a state actor. Pursuant to the ordinance, the District created a 50
hour community service requirement with the rationale of teaching students good values, habits, and
public service. The student may choose the organization with which he wishes to volunteer. James’
parents challenged the community service requirement as in violation of the Fourteenth Amendment
right to substantive due process, arguing that it intrudes upon their right to raise their child as they
wish. If the court finds that the community service requirement impedes a fundamental right, the
court will review using strict scrutiny standard and will likely strike the ordinance because the
rationale is not so important to a compelling government interest as to impede upon this fundamental
right. However, it is likely that the court will not find that the requirement impedes upon a
fundamental right. Therefore, the ordinance will likely be reviewed using the rational basis standard
because no fundamental right is invoked. The rationale for the requirement is legitimate and the 50
hour requirement is related to the goal, and thus the ordinance will likely be upheld.
2.
The court should grant the motion and sanction Attorney for his conduct based on his
violations of Rule 11.
Rule 11 of the Federal Rules of Civil Procedure allows for the implementation of sanctions if
the conduct of an attorney is outrageous or causes unnecessary delay, cost, or attempts to embarrass
parties to the lawsuit. Also Rule 11 places the burden on an attorney that any defense or motion
proposed has a solid foundation in law and is not meritless in law or facts.
Here, Attorney filed a motion to add 28 witnesses to a lawsuit six weeks after the list was due
and all 28 witnesses will only provide cumulative information. This can be seen as unnecessary
delay and added costs to the litigation. Further, Attorney filed a baseless motion for leave to certify
an interlocatory appeal and a frivolous motion to disqualify the judge on unsubstantial grounds.
These motions are violations of Rule 11 in that they are meritless as well as cause unnecessary delay
to the litigation. The goal of Attorney's actions can be seen in his statement to the law clerk where
10
he stated that “he wanted the matter to take as long as possible." Actions taken in litigation that are
designed to lengthen the time of litigation or are meritless as to a basis in law or fact are clear
violations of Rule 11. Attorney has several violations and the court should sanction him.
3 (a). Bella would need to prove a prima facie case for a hostile work environment, and she would
need to prove that Henry's advances were unwelcome, were based on her membership in a protected
class (female), and that his advances were so severe or pervasive as to change the conditions of her
employment.
As a threshold matter, employers are only subject to Title VII if they employ 15 or more
employees. An employee is a person that an employer has control over through scheduling hours
and pay. Here, the threshold requirements are met because Bella worked for Big Furniture since
2014 until March of this year, and Big Furniture employs 100 people.
To prove a sexual harassment claim under Title VII, the plaintiff can either prove a quid pro
quo claim or a hostile work environment claim. A quid pro quo claim occurs when a supervisor -- a
person with the ability to hire and fire -- threatens an adverse employment action upon the plaintiff if
the plaintiff refuses to perform a sexual activity for the supervisor, and the threat is actually carried
out. A hostile work environment claim arises when a plaintiff can show that a co-worker's conduct
is unwelcome, was based on the plaintiff's membership in a protected class, and the co-worker's
behavior was severe or pervasive and enough to change the employee’s conditions of employment.
To prove the unwelcomeness of conduct, a plaintiff must simply show that the sexual advances were
not appreciated. To show membership in a protected class, the plaintiff must show that the activity
is taken because of her membership in the protected class (female). To show severe or pervasive
conduct, the plaintiff can point to the frequency of the harassment and whether the harassment was
physical. The plaintiff can also show that her job changed because of the harassment.
Here, Bella should file a hostile work environment claim. The facts do not support the quid
pro quo violation because Henry did not carry out his threat.
Bella can prove Henry's advances were unwelcome -- she did not appreciate the gestures and
she told HR about them and his actions were taken against her because of her sex, as shown by
Henry’s harassment of two other women as well. Henry's acts were also severe or pervasive. He
began commenting to Bella in January and rubbed her shoulders against Bella's will. Further, he
committed a physical act by pushing her down on a bed. Finally, the harassment was so severe,
Bella quit.
For these reasons, Bella would be able to prove a hostile work environment prima facie case.
3 (b). Big Furniture would need to prove that it had preventive measures in place, and that Bella
failed to take advantage of the preventive measures, or otherwise avoid harm. Here, Big will not be
able to prove the defense.
Typically, for the affirmative defense to be available in hostile work environment cases, an
employer cannot take a tangible employment action against the employee. Further, if the employer
has not done so, the employer must prove that it had preventive measures in place, and that the
employee failed to take advantage of those measures.
11
Here, the employer will not be able to prove the affirmative defense because while it had
preventive measures in place, Bella tried to take advantage of the measures, but HR told her to "chill
out." Thus, Big cannot prove the affirmative defense.
4.
The court should allow Jane and Lola to testify regarding their experiences at Big Furniture.
When making a Title VII claim for sexual harassment, evidence of past incidents can be
relevant to establishing whether a hostile work environment exists. Relevant evidence tends to make
the existence of one or more facts more likely than not. In discrimination cases, it is relevant to the
issue as to whether there is a discriminatory culture. To be relevant, however, the witnesses must
have experienced a similar type of conduct from the same superior. While this evidence could be
prejudicial to the defendant, the danger of prejudice is outweighed by its probative value.
In this case, Jane and Lola are acquaintances of Bella who quit under similar circumstances
during the same year that Bella began working for big Furniture. Similar to Bella, their complaints
about Henry went unaddressed. Their testimony would be valuable to demonstrate the existence of a
hostile work environment, as well as to demonstrate that claims of sexual harassment were not
adequately addressed by Big Furniture. This evidence is directly relevant, and should be admissible.
Also, the judge can issue a limiting instruction in order to limit the possibility of undue prejudice.
12
Question No. 5: Sample Answer
1 (a). A property that is conveyed from one party to another may be conveyed via a general
warranty deed. A deed includes six covenants of title which are split into three present and three
future covenants. The present covenants are the covenant of seisin, covenant of right to convey, and
the covenant against encumbrances while the future covenants are the covenants of quiet enjoyment,
the covenant of warranty, and the covenant of future assurances. A general warranty deed covers the
entire period of time that the property has been in existence and is not limited just to the period of
time that the grantor owned the property. Therefore, the grantor is responsible for any issues that
may arise even if they took place prior to his ownership.
Bob's deed stated, "I hereby grant and convey Blackacre to Carol" and also stated that "the
Grantor generally warrants the property hereby conveyed." This second provision would create
what is known as a general warranty deed which makes Bob liable for any issues that arose even
before he was the owner of Blackacre. The facts further state that Carol received a tax sale notice
for Blackacre from Big City based upon an old tax lien filed against the property that predated Bob's
ownership and incurred $2,500 in out-of-pocket costs to satisfy the lien. Due to the nature of a
general warranty deed, which makes Bob liable for obligations predating his ownership of
Blackacre, Carol would be successful in recovering these costs from Bob.
For the foregoing reasons it can be concluded that because a general warranty deed covers
the entire period of time that a property has been in existence and not just the time that the grantor
has been in ownership, Carol would be successful in recovering the costs to satisfy the tax lien from
Bob.
1 (b). A key difference between a general warranty deed and a special warranty deed is the fact that
a special warranty deed only covers the period of time for which the grantor was the owner of a
property. Therefore, the grantor will not be liable for any obligations that predate his ownership of
the property.
Based on the facts presented Bob's deed stated that, "The Grantor specially warrants the
property hereby conveyed." As a result of this, Bob created a special warranty deed which only
makes him liable for obligations incurred while he was the owner of the property. Therefore, under
a special warranty deed, Bob would not be liable for the tax sale notice that was discussed above due
to the fact that the tax lien predated Bob's ownership. As a result of this, Carol would not be able to
successfully recover the $2,500 in out-of-pocket expenses from Bob.
For the foregoing reasons it can be concluded that Carol would not be able to recover the outof-pocket expenses from Bob due to the fact that a special warranty deed only covers the period of
time for which the grantor owned the property.
2.
No, Mess' defense that damages cannot exceed the value of the antique woodworking tools
($3,500) will not be successful as there was an accord but not satisfaction.
When parties have a valid contract, and a dispute occurs whereby party A believes Party B
owes x amount or some other performance under the contract, and Party B disputes this obligation,
13
parties may enter into an accord, which is an agreement between the parties that if a subsequent
promise (the accord) is performed (satisfaction), then the original obligation will be discharged.
This is distinct from a novation where the parties intend to rescind the earlier contract and substitute
the new contract for the old one. Under an accord/satisfaction, the accord needs to be satisfied
before the original obligation is discharged. If there is no satisfaction, the non-breaching party may
sue for performance of the satisfaction or the original obligation. If the parties create a novation,
however, then the remedy for a breach of the novation is limited to performance of the obligation
under the novation.
This is an accord/satisfaction issue here, not a novation. Ted and Mess apparently entered
into a valid contract. There was a legitimate dispute between the two at the end of the contract
where Ted and Mess were in disagreement about whether Ted was owed $5,000. Ted asserted he
was owed the amount, and Mess disagreed. Mess offered tools worth $3,500 to Ted if he would
forgive the debt. This was an accord. A novation requires intent to destroy the original contract, and
there was no such intent here, as Ted specifically stated "he would consider his claim satisfied in full
only when Mess delivered the tools to him," without revoking his original claim.
As Mess failed to satisfy the accord by failing to deliver the tools, Ted is able to pursue either
the tools or the $5,000 he was originally entitled to. Mess' defense that Ted's damages cannot
exceed the value of the tools will fail.
3.
Charlie’s defense will likely fail because he likely did not exercise the personal satisfaction
clause in good faith.
Clauses in contracts requiring that one party to a contract must be personally satisfied before
a duty to perform is triggered are generally enforceable. All contracts include an implied duty for
both parties to act in good faith, and the implied duty of good faith restricts a party's right to exercise
a personal satisfaction clause. Good faith may include objective or subjective elements. A person
acts subjectively in good faith if they exercise a personal satisfaction clause to terminate a contract
because they actually are not satisfied. A person does not objectively act in good faith if a
reasonable person would have been satisfied. Courts may require either subjective good faith or
objective good faith or both, depending on the circumstances. When exercising a personal
satisfaction clause in the context of personal services related to artistic tastes, courts generally apply
subjective good faith.
Charlie terminated a contract with Bob and Carol early despite their performance being
universally critically acclaimed after he contracted with Alice to perform similar shows. This
suggests that Charlie was not dissatisfied with their performances but rather he found a better
opportunity. As a result, a jury would likely infer that Charlie was not actually dissatisfied and that
he failed to act in good faith, and would render a verdict for Bob and Carol.
4.
Bob should sue Mess under the Implied Warranty of Habitability; he will likely succeed.
The issue here is whether Bob can recover against Mess for the defectively designed
basement. Under Pennsylvania law, a home builder impliedly agrees to provide or build a properly
working and functioning structure. Within the implied warranty of habitability is the guarantee that
the home will be safe, free of hazards, and provides a minimum standard of habitation for the
occupants. With residential construction the implied warranty of habitability applies when the
14
builder/vendor sells new homes to residential buyers. While parties often disclaim warranties of
fitness and merchantability, the implied warranty of habitability cannot be waived absent clear
language. Home builders are obligated, upon being informed of the breach of the warranty of
habitability, to remedy the problem as soon as possible.
Here, Mess disclaimed the warranties of merchantability and fitness in the contract. The
contract also contained a "catch-all" provision disclaiming "causes not specifically recited herein."
However, this provision did not clearly disclaim the implied warranty of habitability. The builder of
a home impliedly agrees to satisfy the implied warranty of habitability. A defectively designed
basement likely falls within the warranty as it is a basic component of a habitable home. This is
particularly important here as Bob's furnace malfunctioned in January, presumably the coldest time
of the year, and seemingly developed a ventilation problem as a result of the defectively designed
basement.
Bob put Mess on notice that the furnace was malfunctioning as a result of the defective
basement design by making frequent demands that they remedy the problem. Mess refused to act
and Bob was forced to hire a contractor to reconstruct the basement at a cost of $10,000. Thus, Mess
likely breached the implied warranty of habitability and will be required to reimburse Bob for the
full cost of the basement redesign.
15
Question No. 6: Sample Answer
1.
EI can successfully sue Al for deciding to make the distribution, by proving a duty of care
violation by Al. However, EI will not be able to sue either Bee or Chris.
Generally, directors are permitted to vote to make distributions to allow for dividends to be
paid to the shareholders. A director is not permitted to allow a distribution if either the equity
insolvency test is met or the balance sheet insolvency test is met (the plaintiff must only meet one
test). The equity insolvency test provides that a corporation will not be able to pay their debts as
they come due. The balance sheet insolvency test provides that the corporations assets are less than
the corporations total liabilities and liquidation preferences. A director is only liable for making an
improper distribution if the director also violated his duty of care -- as explained below in the
analysis of the second issue of this question.
Here, Al was not permitted to make the distribution. He knew that EI was losing its largest
customer for at least six months, and he knew that EI's largest customer owed EI $250,000. Further,
Al chose to make the distribution because he did not want the bankruptcy of EI's largest customer to
interfere with him receiving his dividend. Al likely knew that the equity insolvency test was not
met. Specifically, the facts note that once Bee and Chris learned of the bankruptcy, they realized
that EI would not be able to pay its debts as those debts come due. Thus, the equity insolvency test
was met as EI could not pay its debts. It is irrelevant, that even if the distribution was not made, EI
would not have been able to pay its debts as those debts come due. Thus, EI should not have made
the distribution, and whether EI can recover from Al, Bee, or Chris depends on whether any of those
directors violated their duty of care to the corporation.
A corporation's directors are required to act with the best interests of the corporation in mind.
When a director makes a decision that impacts the corporation, typically the duty of care is
implicated. For decisions a director is entitled to the business judgment rule that provides a
rebuttable presumption that a director's actions are in the best interests of the corporation. A plaintiff
-- here EI -- can rebut the business judgment rule by showing that a director did not inform himself
regarding the decision, did not act as a reasonably prudent person (the duty that all directors are
required to abide by), acted in self-interest, or acted in bad faith. Further, a director is allowed to rely
on other directors, outside experts (attorneys, investment bankers), and boards of the corporation
when making decisions.
Here, EI would be able to show that Al violated his duty of care to the corporation, but would
not be able to show that either Bee or Chris did. First, EI can rebut the business judgment rule. Al
did not inform himself about the decision. He took very little time in deliberating whether to make
the distribution. To that end, last week he found out about the bankruptcy, and then two days ago he
decided to make the distribution. As a result, Al spent very little time deliberating as to whether he
should make the distribution. Further, Al did not act as a reasonably prudent director would under
the circumstances. Knowing that the corporation was about to lose its biggest customer, a
reasonably prudent director would not issue a $20,000 dividend to five shareholders for a total
amount of $100,000 when the customer already owed EI $250,000. Further, Al acted in self-interest.
The only reason he made the dividend is because he did not want to lose his dividend because EI's
largest customer was bankrupt. The latter actions also constitute bad faith. It should be noted
16
however, that Bee and Chris not knowing of the bankruptcy and only knowing about EI's
profitability and cash on hand would likely not be found to have violated their duty of care to the
corporation.
For these reasons, the corporation can successfully sue Al. Because Al made an improper
dividend and violated his duty of care, EI will succeed in a suit against Al.
2.
Circuit's repudiated its contract by not responding to EI's reasonable request for adequate
assurances.
A party repudiates a contract when it expressly or impliedly breaches a contract with another
party. When a party reasonably feels insecure that the other party will be able to satisfy its
obligations under the contract it may request adequate assurances and give the party a reasonable
time to respond. In Pennsylvania the request for adequate assurance must be in writing and a
reasonable time is within 30 days. Failure to respond with adequate assurances can be viewed as a
breach by the requesting party.
EI had the right to demand verification from Circuits that it would be able to fulfill its
obligations under the subcontract. It came to Al's attention that Circuit was having financial
difficulty, had several judgments entered against it, and was running late on making deliveries under
its existing contracts with other customers. In addition the first circuit board was non-conforming.
EI was therefore entitled to ask for adequate assurances. EI sent a written request. After 30 days EI
sent a subsequent request. Circuits did not respond to the written requests for adequate assurance.
Therefore, because Circuits failed to respond to EI's request for adequate assurances, they
can deem Circuit’s conduct as repudiation of the contract.
3.
EI can buy the circuit boards from Boards and EI can recover the $20,000 in costs from
Circuits.
A party is entitled to the benefit of the bargain from a contract. Thus, if a promisor fails to
fulfill the contract, the promisee can seek to mitigate its damages by pursuing another contract.
When pursuing another contract, the promisee must reasonably mitigate its damages and reasonably
cover. The damages for breach of contract are typically expectancy damages -- the benefit of the
bargain. A party is entitled to recover reasonably certain expected damages arising from a contract,
such as finding a new replacement contract, and shipping costs. A party is entitled to recover
consequential damages.
Here, Circuits breached its contract with EI by not responding to EI within a reasonable
amount of time. To that end, EI can seek a replacement contract. EI can also recover the $20,000 in
difference in cost because the costs of a replacement contract are reasonably foreseeable and are not
unexpected, unforeseeable consequential damages. Thus, EI can seek a replacement contract with
Boards, and can recover the difference in cost under an expectancy theory from Circuits.
For these reasons, EI can seek a contract with Boards, and can recover the difference in costs
from Circuits.
17