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Themis_PABar_Review > PA Essay > Flashcards

PA Essay Flashcards

1
Q

BJR + Minority SH suit

A

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

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2
Q

BJR

A

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

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3
Q

Pennsylvania’s basis for business law?

A

the Pennsylvania Business Corporation Law of 1988

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4
Q

Record keeping

When may a SH request record?

A

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

When related to her interest as a SH

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5
Q

the name of PA UCC?

A

Article II of the Pennsylvania Uniform Commercial Code on Sales

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6
Q

Implied warranty

A

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

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7
Q

Implied warranty of fintessfor particular purpose

A

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,

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8
Q

Requirements for excluding warranty

A

The language must be in writing & conspicuous

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9
Q

Relevant estate statute of PA

A

the Pennsylvania Probate Estates and Fiduciaries Code

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10
Q

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

A

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

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11
Q

Power of appointment

A

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

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12
Q

Power of appointment - what kind?

A

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

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

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13
Q

Special power of appointment

A

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

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

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14
Q

Taxability of life insurance proceeds

A

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

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15
Q

When lawyer’s disclosure of the client info permitted

A

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

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16
Q

Trust law PA

A

Uniform Trust Act

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17
Q

Elements of a valid trust

A 
Beneficiary
Trustee
Trust proeprty
purpose
intent
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18
Q

Trust + intent requirement in PA

A

Writing

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19
Q

Trust + Precatory language in PA

A

No creation of trust (wish/hope)

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20
Q

Pour over trust

A

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

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21
Q

Cy Pres Doctrine

A

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

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22
Q

4 types of asset protection trusts

A

Pour over trusts
Support trusts
Discretionary Trusts
Spendthrift trusts

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23
Q

The purpose of spendthrift trust in PA

A

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

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24
Q

PA revocation of trust by will

A

PA prohibits a trust from being prematurely revoked by will

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25
Q

PA trustee power

A

All powers reasonably necessary to administer the trust

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26
Q

PA trustee duty of loyalty exception

A

Can advance his own personal funds to the trust

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27
Q

PA trustee duty rule regarding investment decision

A

Prudent Investor Rule

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28
Q

Child support PA

A

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

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29
Q

Search of the property. co-owner right

A

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

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30
Q

Factors re: child support

A

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

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31
Q

Lay witness testimony

A

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

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32
Q

Partial/Complete integration inquiry standard

A

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

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33
Q

Duty of a life tenant

A

It is the duty of a life tenant to keep the property subject to the life estate in repair so as to preserve the property and prevent decay or waste.

The general rule is that while a life tenant is responsible for repairs and maintenance, she is not responsible for improvements. The rationale behind the rule is that a life tenant should not be allowed to improve a remainderman out of his estate.

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34
Q

Tenant right re: fixture

A

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

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35
Q

PA intestacy calculation. Which method?

A

Per capita with representation

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36
Q

PA will requirement

A
  1. Sign ( no real name required)
  2. No witness required
    (See interested witness rule)
  3. testator must understand he is executing a will + must intend to dipose the proper
37
Q

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

A

Mark, two

38
Q

Interested witness

A

Unless witnesses are required, all witnesses are deemed disinterested

39
Q

Writing after the will.

A

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

40
Q

PA stepchild

A

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

41
Q

Simultaneous Death Act

A

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

42
Q

The Pennsylvania anti-lapse provision

A

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

43
Q

per stirpes

A

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

44
Q

Lawyer Duty of competent representation

A

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

45
Q

Taxability of casualty loss

A

Under section 1033 (a) of the Internal Revenue Code, 26 U.S.C.A. §1033, a casualty insurance payment for the total loss of property caused by destruction, theft, seizure or condemnation, referred to as an “involuntary conversion,” must, unless excluded by law, be reported as a gain in the same manner as a voluntary sale to the extent the payment exceeds the adjusted basis of the property.

Deductibility permitted to the degree exceeding 100 and 10% of the AGI

46
Q

Gain from sale of principal residence

A
  1. up to 250K gain

2. which has been so used for at least two of the five years preceding the sale or other disposition

47
Q

non recognition regarding rebuilding/replacement

A

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

48
Q

Kidnap

A

Unlawful moving
unlawful confinement

to terrorize
ransom
facilitate commission

49
Q

PA withdrawal

A

May withdraw where

thwarts
complete and voluntary

50
Q

PA abandoment

A

(abandoning the attempt)

voluntary
affirmative step

51
Q

PA attempt

A

substantial step

52
Q

PA crimes involving dishonesty

A

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

53
Q

recklessly endangering another person through reckless conduct

A

The crime of recklessly endangering another person is a crime of assault which requires the creation of danger. As such, there must be an actual present ability to inflict harm.”

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.

54
Q

disorderly conduct

A

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

55
Q

PA intervention

A

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

56
Q

Dissenter’s right

Exception

Procedural Req

A

Shortform merger

SHs entitled to vote on merger/asset ssale or amendment of AOI

The right to have shares purchased by the corporation

EXC

  1. nationally listed or
  2. held by more than 2000

Requirement

  1. Written notice + intent
  2. Either abstain or vote
  3. After the action approval–> make a written demand
57
Q

PA SOL

A

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

58
Q

Legal malpractice element. (cf) Tort

A

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

59
Q

1.1 Competent representation

A

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

60
Q

Preemptive right

A

Right to buy enough stock to maintain ownership

61
Q

Corporate opportunity

A
  1. Relation to the corporation’s business

2. Came to the director through corporation

62
Q

Ultra vires defense?

A

Abolished in PA

63
Q

PA conflict of law approach

A

Hybrid approach =

Most significant relationship approach + Government Interest approach

64
Q

PA recording statute

A

Race-Notice

65
Q

PA mortgage

A

Title theory

66
Q

Mutual Mistake

A
  1. The mistake to basic assumption of K
  2. Mistake has a material effect on the agreed upon performance
    3.
67
Q

Chattel PA

A
  1. Fixture (damage)

2. Trade fixture ( attached + for biz)

68
Q

Intentional Interference with a K

A
  1. A valid K between P and 3P
  2. D knew of he K relationship
  3. D intentional interfernce –> causing breach
  4. Breach caused damages.
69
Q

IIED

A
  1. Intentional reckless engagement in
  2. extreme and outrageous conduct
  3. cuasing plaintiff
  4. sever emotional Distress.
70
Q

Titl VII discrimination. prima facie

A

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

71
Q

SJ

A

no genuine dispute of fact

72
Q

Burden shifting

A

PL prima facie
D LNDR
PL pretext

73
Q

Motion for new trial standard

A

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

74
Q

PA anticipatory repudiation

A

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

75
Q

PA anticipatory repudiation –> retraction

A

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

76
Q

Essential element of the deed

A

to be delivered

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

77
Q

Divorce and effect on the will

A

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

78
Q

PA in-terrorem clause

A

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

79
Q

PA will requirement

A

“Every will shall be in writing and shall be signed by the testator at the end thereof . . .”

the writing must be dispositive in character and the disposition must be intended to take effect after the testator’s death.

80
Q

Oral will?

A

No

81
Q

Dependent Relative Revocation

A

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

82
Q

PRC communication with a represented party

A

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

83
Q

Emp discrimination - hostile work environment

A

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

84
Q

Establishment of K in will

A

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

85
Q

Preliminary injunction

A

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

86
Q

Religious freedom in CTT

A

Establishment clause, 1st AMD

87
Q

Lemon test. Est clause

A

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

88
Q

Right of first refusal

A

-

Themis_PABar_Review (9 decks)

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