! ray- pa law Flashcards
What is the definition of burglary?
If person enters a building or occupied structure, or separately secured portion thereof, with intent to commit a crime therein. Except where premises are open to the public
What is definition of robbery?
In the course of committing theft, person physically takes or removes property from the person of other by force, however slight.
What is the definition of larceny (THEFT in PA).
Unlawful taking or exercising control over movable property of another with intent to deprive him thereof.
Murder in second degree
Homicide constitutes murder in second degree when it is committed while the D was engaged as a principle or accomplice in perpetration of felony (aka felony murder).
What is a principal?
Person who is the actor or perpetrator of a felony.
What is a felony in relation to felony murder?
Act of D engaging in or begin an accomplice in the commission of, or attempt to commit felony.
What is hearsay?
Statement (other than one made by declarant) offered as evidence to prove the truth of the matter asserted.
When is hearsay admissible?
It is not, unless it falls within an exception.
True or False: Absence of Declarant is a valid exception to rule that hearsay is inadmissible?
True. Where it declarant is unavailable as a witness and the statement was made by the declarant while believing that the declarant’s death was imminent, or declarant believed impending death.`
What is the PA rule regarding division of marital assets?
Equitable distribution.
What is defined as “marital property” for the purposes of equitable distribution?
All property obtained during the marriage, together with the increase in value of any non-marital property acquired prior to marriage. This is measured from date of marriage to either date of final separate OR date as close to hearing on equitable distribution as possible. (Whichever results in a lesser increase).
What protections offered by Americans with Disabilities Act (ADA)?
(A) Prohibits employers from discriminating against qualified individuals based on disability.
(B) Employer also required to provide reasonable accommodation with regard to known mental or physical limitation of otherwise qualified person UNLESS the employer can show that such an accommodation would cause undue hardship.
What protections offered by Civil Rights Act of 1964?
Prohibits discrimination against employees on the basis of race, color, national origin, religion or sex
What qualifies as disability under the ADA?
(1) actual disability, (2) record of disability, or (3) regarded as having a disability.
When does a Plaintiff have an actual disability under the ADA?
Physical or mental impairment that substantially limits or more major life activities.
–Substantially limited - compared to most in general population
Are “mitigating measures” considered when determining whether P is substantially impaired by actual disability?
No. Mitigating measures that eliminate or reduce the symptoms or impact of impairment cannot be used in determining whether P has disability.
Do “episodic impairments, or remissions” qualified as disability under ADA?
Yes.
What is required to prove existence of disability via “record of disability?”
If individual has record of physical impairment that substantially limits one or more major life activities.
What is required to prove existence of disability via P is “regarded as having disability?”
Employer “regards” an individual as having a disability if it takes an action prohibited by teh ADA based on individuals impairment or on an impairment employer believes the individual has.
(Ex. sever facial disfigurement)
What are the elements of “failure to accommodate” claim under the ADA?
(1) P has a disability, (2) P is qualified to perform, with or without reasonable accommodation, and (3) P suffered an adverse employment action as a result of discrimination.
What is required to demonstrate P is “qualified individual” under ADA claims?
Burden on P to show she (i) Possesses requisite skill, and (ii) she is able to perform essential functions functions of position with or without reasonable accommodation
What is the definition of the defense of “undue hardship” under disability discrimination ADA claims?
Employer defense. Action would require significant difficulty or expense when considered in relation to factors such as size of business, financial resources and nature/structure of operation.
What is the purpose of the ADEA – Age Discrimination Act?
Makes it unlawful for an employer to discharge any individual or otherwise discriminate against an individual based on age.
What is the definition of a potential plaintiff under the ADEA?
Plaintiff must be 40 years or older. Reverse age discrimination has been rejected.
What are the exemptions of the ADEA?
(i) Bona fide executives (employer may require mandatory retirement of bona fide executive at 65); (ii) safety officers; and (iii) elected and appointed officials
What is the bona fide occupational qualification defense to the ADEA?
Employer shows that an age restriction or differential treatment of older employees is reasonable necessary to its primary mission.
Standard – STRINGENT - usually requires empirical evidence that increase in age is linked to decline in jbo competency (Ex. air pilot)
What is the “reasonable factor other than age” defense to ADEA?
Employer may engage in practice that has disparate impact on older applicants or employees when such difference is based on reasonable factor other than age.
(if policy reasonably based on age, defense does not apply).
What are the common discrimination claims?
(i) Disparate treatment (including individually and systematically); (ii) failure to accommodate; (iii) harassment; (iv) retaliation
What are the elements of a prima facie case for disparate treatment for employment discrimination?
Employee must show: (i) she is member of protected class, (ii) she was qualified for the position, and (iii) suffered an adverse employment action.
THEN, burden shifts to employer to offer legitimate, non-discriminatory reason for alleged treatment.
Can the bona fide occupational qualification defense be used against race?
No.
What are the two main categories of harassment claims?
(1) Quid Pro Quo, or (2) Hostile Work Environment
What is quid pro quo?
Category of harassment, applies only to sexual harassment. In such a case, alleged harasser must be superviosr, made sexual advance, carried out threat of consequence and P must prove adverse employment action.
What is hostile work environment claim?
Claim arises when employee expereiences unwelcome and offensive sexual conduct or unwelcome offense conduct that is so severe or pervasive is alters the terms and conditions of employment.
Explain the extent of employer liability for quid pro quo claims vs. harassment claims.
Quid pro quo – employer is automatically liable for QPQ sexual harassment that results in adverse employment action.
Hostile work environment – Employer liable unless it can show by preponderance of the evidence that it (i) took reasonable measures, (ii) employee unreasonably failed to take advantage of corrective opportunities.
(Ex. anti-harassment policy distributed to every employee).
What are the elements of a claim of retaliation?
P must show (i) P engaged in activity protected by one of the discrimination statuses, (ii) employer took adverse action against employee, and (iii) causal connection exists between activity and action.
What remedies are available for employment discrimination claims?
(A) legal remedies, including compensatory, punitive and liquidated damages including legal fees.
(B) equitable remedy, including reinstatement, backpay
Are compensatory damages/punitive damages available under ADEA claim of employment discrimination?
No.
Are common law marriages valid in PA.
Only those contracted BEFORE january 1 2005.
What are the ways to end a marriage?
(i) annulment, (ii) divorce and (iii) death
What is an annulment?
Action that voids a marriage and declares it as never being valid.
Under what circumstances will a marriage be declared VOID?
(i) prior existing marriage, (ii) incest, (iii) mental incapacity, and (iv) either party under 18.
When is a marriage VOIDABLE (where one spouse seeks annulment)?
(i) age (under 16 without parental consent) or (ii) impotency unknown at time of marraige, (iii) intoxication (within 60 days), (iv) or fraud.
When a marriage is terminated by annulment - how are assets divided?
Have access to equitable distribution!
What are the grounds for divorce in PA?
Includes both fault and no-fault grounds: (1) bilateral no-fault; (2) unilateral no-fault grounds, or (3) recognized fault grounds.
What is bilateral no-fault grounds for divorce?
Mutual consent by both parties, confirmed by affidavit that marriage is irretrievably broken and wait 90 days.
What is unilateral no fault grounds for divorce?
Both parties live apart for at least 2 years and marriage is irretrievably broken. Period of separation begins when one spouse has communicated to the other intent to dissolve the marriage relationship.
What are the grounds for fault based divorce in PA?
(1) Adultery, (2) cruelty, (3) desertion, (4) bigamy, (5) Imprisonment, (6) indignity, and (7) institutionalism
What is the recimination defense?
Defense to fault based divorce claims, that both spouses committed marital wrongdoing. (Complete defense to adultery).
What is the rule regarding division of property in PA?
Equitable distribution.
What is the rule of equitable distribution?
Court divides marital property in a fair and equitable manner. Each party does not necessarily get 50%
What is the definition of “marital property?”
All property acquired during marrage. And increase in value of all non-marital property during the marriage up to date of separation or equitable distribution hearing, which results in less increase.
(Increase in value can be offset by decrease in value of non-marital property).
True or False: Separate property that is co-mingled with marital property becomes marital property?
True.
What are the PA exceptions to marital property?
(i) acquired before marriage, (ii) excluded by parties valid agreement, (iii) acquired by gift, (iv) acquired after final separation, etc
What are some key factors in distribution of marital property?
(i) length of marriage, (ii) prior marriages, (iii) age/health/earnings/liabilities of both spouses, (iv) contributions to education… income … value of separate property … standard of living … who will be in custody of minor child.
