JULY 2017

PENNSYLVANIA BAR

EXAMINATION

Essay Questions and Examiners’ Analyses

and

Performance Test

Pennsylvania Board of Law Examiners 601 Commonwealth Avenue, Suite 3600

P.O. Box 62535 Harrisburg, PA 17106-2535

(717) 231-3350 www.pabarexam.org

©2017 Pennsylvania Board of Law Examiners

Table of Contents Index ..................................................................................................................................................ii Question No. 1: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines .............. 1 Question No. 2: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............10 Question No. 3: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............20 Question No. 4: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............29 Question No. 5: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............40 Question No. 6: Facts and Interrogatories, Examiner's Analysis and Grading Guidelines ..............49 Performance Test and Grading Guidelines ........................................................................................56

i

Index

Question No. 1

1. Decedents’ Estates: holographic will

2. Decedents’ Estates: elective share

3. Federal Income Tax: cancellation of debt, gift

4. Professional Responsibility: fee sharing, recommending lawyer services, information

about legal services

Question No. 2

1. Torts: wrongful death, survival action

2. Torts: good Samaritan statute

3. Pa. Civil Procedure: demand for jury trial, waiver

4. Evidence: relevance – consumption of alcoholic beverages

Question No. 3

1. Criminal Law: first degree murder

2. Evidence: hearsay – dying declaration

3. Criminal Procedure: search incident to arrest

4. Family Law: alimony

Question No. 4

1. Civil Procedure: motion to dismiss

2. Constitutional Law: First Amendment – symbolic/compulsory speech

3. Constitutional Law: state action

4. Employment Law: Title VII - retaliation

ii

Question No. 5

1. Property: adverse possession, tacking

2. Property: life tenant, vested remainder

3. Contracts: implied-in-fact

4. Contracts: unconscionability

Question No. 6

1. Professional Responsibility: client-lawyer relationship

2. Corporations: recording director dissent

3. U.C.C. Article II: casualty to identified goods

iii

Question No. 1

Sam and Deb are married and reside in B County, Pennsylvania. They have no children.

Deb owns and operates a successful catering business and has accumulated a significant net

worth that affords the couple a comfortable lifestyle. Sam works a few hours a week for the

catering business as a sales associate, but spends most of his time at B County Country Club

playing golf and socializing, often with his friend Fred. Fred, a high-school graduate, is wealthy

by virtue of a large family inheritance. Deb is happy that her hard work can give Sam a life of

relative leisure but makes no secret of her dislike for Fred.

In 2015, Deb and Sam agreed that it was time to have wills prepared. Sam asked Fred if

he knew a good lawyer, and Fred suggested that he call Linda, a local attorney, saying, “Call

Linda, she’s the best lawyer in town, I highly recommend her.” Linda prepared wills for Sam

and Deb, and Deb’s will provided as follows:

I leave the entirety of my estate to my spouse, Sam. If Sam predeceases me, I

leave the entirety of my estate to the Pennsylvania Humane Society. I name Sam

as executor of my estate.

Sam and Deb properly executed the wills on May 5, 2015, and left the originals with Linda for

safekeeping. Sam and Deb paid Linda $2,100 for preparing the wills. Linda then sent $700 to

Fred with a note saying, “Thank you for recommending my services to Sam and Deb, here is

your one-third share of their fee.”

On December 31, 2016, Fred married his girlfriend and threw a large, lavish wedding

reception at his home, which he asked Sam to cater. Sam and Fred agreed on a price of $50,000

for the event and signed a written contract providing for payment within 30 days of the event.

Fred signed the agreement in his individual capacity.

1

Fred made no payments on the catering contract until last month when, after weeks of

Deb pleading with him to collect the debt, Sam asked Fred when he could expect payment. Fred

said, “I can’t pay you without selling off some stocks which I’m not gonna do. How about I pay

you half today and you cancel the rest. I know I owe you $50,000 but this is the best I can do.”

Sam agreed, saying, “Fine, consider it a wedding present.” Sam took a $25,000 check from Fred

and wrote “CANCELLED” in red ink across the top of the original contract.

That same evening, when Sam told Deb about cancelling half of the debt, she became

enraged. Sam told her that Fred was his truest friend and he was happy he could do something

special for the wedding. Deb was not convinced, and she immediately left their home and went

to her office. There, on a piece of company stationary, she wrote the following by hand:

I revoke my prior Will and declare this to be my Last Will. I leave the entirety of

my estate to the Pennsylvania Humane Society. I leave nothing to my husband

Sam. I appoint Linda as executor. Signed, Deb, June 22, 2017.

Deb signed at the bottom and left the document in her outgoing mail in an envelope addressed to

Linda. On her way home, her vehicle was hit by a drunk driver, and Deb was killed instantly.

1. Linda, acting as executor, filed Deb’s handwritten document dated June 22, 2017, with

the Register of Wills. Sam timely filed a petition arguing that the handwritten paper was

not a valid will, and that Deb’s May 5, 2015, will should be admitted to probate. As

between the June 22, 2017, and May 5, 2015, documents, which will control the

distribution of Deb’s estate?

2. Assume for this question only that Deb’s June 22, 2017, handwritten document was

recognized as her valid will. Under the Pennsylvania Probate Estates and Fiduciaries

Code, what action can Sam take, as surviving spouse, to claim against Deb’s estate, and

how would the probate estate be distributed if Sam takes such action?

3. Assume that the catering contract was otherwise valid and enforceable and that it was

properly cancelled by Sam. Fred is a cash basis, calendar year tax filer. How would the

cancellation of the debt be treated by Fred for income tax purposes for the 2017 tax year?

4. Did Linda’s payment of $700 to Fred violate any of the Rules of Professional Conduct?

2

Question No. 1: Examiner’s Analysis

1. The Register of Wills should determine that Deb’s handwritten paper is a valid

holographic will under Pennsylvania law and that it revoked her prior will.

The only formal requirements for a valid will in Pennsylvania are set forth in the Probate

Estates and Fiduciaries Code (PEF Code), which provides, in relevant part, that “[e]very will

shall be in writing and shall be signed by the testator at the end thereof[.]” 20 Pa.C.S. § 2502;

see also 20 Pa.C.S. § 2504.1 (“A will is validly executed if executed in compliance with section

2502[.]”).1

In addition, Pennsylvania courts require a will to establish that the testator intended the

document to be her will, and to dispose of property at the testator’s death:

The form and language of a writing are no more than factors to be considered and

are not determinative of whether the writing is a will, so that this informal

instrument may be a fully effective will if the language suffices to show

testamentary intent. Testamentary intent, however, is an indispensable element

for the finding of a will. The writing must be dispositive in character, and the

disposition must be intended to take effect after the testator's death.

In re Estate of Ritchie, 480 Pa. 57, 64, 389 A.2d 83, 87 (1978) (internal citations omitted); see

also In re Estate of Fick, 418 Pa. 352, 355, 211 A.2d 425, 427 (1965) (“If a testator intends to

make a testamentary gift, it can be done in many ways and in many forms, and the intent, as we

have often said, is the polestar.”).

A will written in the testator’s own handwriting is known as a holographic will. The

Wolters Kluwer Bouvier Law Dictionary Desk Edition (2012) (defining a holographic will as “[a]

will written by hand. . . . [or] a last will and testament written in the handwriting of the testator

and signed by the testator”). Holographic wills have long been recognized as valid by

Pennsylvania courts, applying the principles set forth above. See e.g. In re Estate of Ritchie,480

Pa. at 60, 389 A.2d at 85; In re Estate of Fick, 418 Pa. 353, 211 A.2d at 426; Galli's Estate, 250

Pa. 120, 128, 95 A. 422, 425 (1915).

Deb’s June 22, 2017, handwritten paper is a holographic will, and it is valid under

Pennsylvania law because it meets the formal requirements for a will and demonstrates

testamentary intent. Her document was in writing, and it was signed at the end. Therefore, it met

the formal requirements of the PEF Code section 2502.

Further, Deb demonstrated that it was her intent that the document be her will and that it

make a testamentary disposition. Her language was dispositive in character. She wrote “I

declare this to be my Last Will” and provided for disposition of the “entirety of” her estate. She

then mailed the paper to her attorney, who was holding her prior will. All of these facts show

1 While witness signatures and a notary attestation are necessary to make a will “self-proving,” those formalities are

not required to establish a valid will. See 20 Pa. C.S. § 3132.1.

3

that Deb intended the 2017 paper to be her will. Consequently, Deb’s handwritten paper will

very likely meet the requirements of a valid holographic will.

Deb also explicitly revoked her prior will in her handwritten will. Pennsylvania law

provides, in relevant part, that a will can be revoked by the following methods:

(1) Will or codicil. — By some other will or codicil in writing;

(2) Other writing. — By some other writing declaring the same, executed and

proved in the manner required of wills . . . .

20 Pa.C.S. § 2505. Since the holographic will was valid, it validly revoked the prior will under

section 1 above. It could also be argued that when Deb stated in the holographic will, “I revoke

my prior Will,” the 2015 will was revoked under section 2. As a result, Deb’s revocation of the

2015 will was effective, and, absent other claims that Sam could make, her estate will be

governed by the terms of her 2017 handwritten will.

2. As Deb’s surviving spouse, Sam has the option to claim an elective share. If Sam

elects, he is entitled to one-third of the probate estate, and the Pennsylvania

Humane Society will be the beneficiary of the balance of Deb’s estate.

In Pennsylvania, the elective share of a surviving spouse is determined by statute. See

Bialczak v. Moniak, 373 Pa. Super. 251, 255, 540 A.2d 962, 964 (1988) (stating “the Elective

Share of Surviving Spouse Act . . . created in a surviving spouse the right to an elective share of

one-third of the decedent's augmented estate irrespective of an existing will”). The PEF Code

sets forth certain assets which are subject to election by a spouse and excepts others. 20 Pa.C. S.

§ 2203. With respect to probate assets passing under a will, the statute provides, in relevant part,

as follows:

[W]hen a married person domiciled in this Commonwealth dies, his surviving

spouse has a right to an elective share of one-third of the following property:

(1) Property passing from the decedent by will or intestacy.

20 Pa.C.S. § 2203.

Furthermore, the spouse must actually make the election in order to receive the

elective share; without exercising her or his right of election, the spouse is entitled to only

that portion of the estate that is devised to him or her. 20 Pa.C.S.A. § 2210; In re Harris,

351 Pa. 368, 379, 41 A.2d 715, 720 (1945).

Sam receives nothing under the terms of Deb’s 2017 will and will receive nothing from

her estate unless he timely files an election. If he files a valid election, he will be entitled to

receive one-third of the probate assets passing under her will pursuant to 20 Pa. C.S. § 2203.

4

If an election is made, then the balance of any conveyance diminished by the election

passes to the intended beneficiary:

Effect of election. — [T]he court shall honor any provision in the decedent’s will

or other conveyance concerning interests of those other than his spouse in the

event of an election. Subject to any such provision, the court shall be guided by

the following rules but shall have the power to supplement or to depart from them

if, in its opinion, a different determination of the rights of the spouse and others

would more nearly carry out what would have been the particular decedent’s

intention had he known of the election:

(1) In general. -- Property which otherwise would pass by intestacy shall first be

applied toward satisfaction of the spouse’s elective share. The balance of the

elective share shall then be charged separately against each conveyance subject to

the election, the passing of property by will to be treated as a conveyance for this

purpose . . . .

20 Pa. C.S. § 2211(b); see also in re Babcock’s Estate, 378 Pa. 456, 462, 106 A.2d 435, 437

(1954) (“[T]he share which a widow takes of her husband's estate . . . by virtue of an election

automatically reduces pro tanto the residue available for disposition according to the will.”).

If he properly files an election against Deb’s will, Sam will receive one third of the

probate estate passing under the will. The Pennsylvania Humane Society would then receive the

balance of the estate, or two thirds. While not directly implicated by the call of the question, it

should be noted that if Sam fails to file an election in compliance with PEF Code 2210, he will

receive nothing under her will, and the Pennsylvania Humane Society will receive 100% of the

residuary estate.

3. The cancellation of the debt will not be treated as income to Fred because it was a

gift.

The Internal Revenue Code defines income broadly, and specifically includes cancellation of

debt in its definition:

General definition. -- Except as otherwise provided in this subtitle, gross income

means all income from whatever source derived, including (but not limited to) the

following items:

***

(12) Income from discharge of indebtedness . . . .

26 U.S.C.S. § 61. The regulations provide that “[t]he discharge of indebtedness, in whole or in

part, may result in the realization of income.” 26 C.F.R. 1.61-12(a).

5

In this case, the cancelled debt will be income to Fred unless it falls into an exception.

The Internal Revenue Code provides a number of exceptions to the general rule that forgiven

debt constitutes income:

In general. -- Gross income does not include any amount which (but for this

subsection) would be includible in gross income by reason of the discharge (in

whole or in part) of indebtedness of the taxpayer if—

(A) the discharge occurs in a title 11 [bankruptcy] case,

(B) the discharge occurs when the taxpayer is insolvent,

(C) the indebtedness discharged is qualified farm indebtedness,

(D) in the case of a taxpayer other than a C corporation, the indebtedness

discharged is qualified real property business indebtedness, or

(E) the indebtedness discharged is qualified principal residence

indebtedness . . . .

26 U.S.C.S. § 108.

Fred’s forgiven debt does not fall into any of the exceptions of section 108. Fred is not

insolvent or in bankruptcy proceedings. To the contrary, Fred has a large inheritance and

specifically says that he does not want to liquidate personal holdings to pay Sam. The debt arose

from a contract for catering services; it is not qualified farm indebtedness, qualified principal

residence indebtedness, or qualified real property business indebtedness. Therefore, the

cancellation of indebtedness, on its own, would be included in Fred’s gross income for 2017.

However, “gross income does not include the value of property acquired by gift”.. 26

U.S.C.S. § 102. A gift is motivated by “detached and disinterested generosity[.]” Commissioner

v. Duberstein, 363 U.S. 278, 285 (1960) (internal quotations and citation omitted). A gift from

the creditor to the debtor in the form of cancellation of indebtedness is not taxable. Where the

forgiveness is “gratuitous,” the cancellation of debt may not be income to the debtor. Helvering

v. Am. Dental Co., 318 U.S. 322, 331, 63 S. Ct. 577, 582 (1943). In addition, in order to avoid

taxation, the creditor must intend the forgiveness to be a gift. Commissioner v. Jacobson, 336

U.S. 28, 51-52, (1949).

Under the above facts, it is likely that the cancelled debt would constitute a gift. Sam

cancelled the debt gratuitously, and explicitly stated to both Fred and Deb that his motivation

was to forgive the debt as a wedding gift to Fred, on account of their personal relationship. Sam

intended to make a gift, and, as such, Fred will not have taxable income as a result of the

cancellation of the debt.

6

There are other non-statutory exceptions for disputed debt, none of which are likely to

apply here. The disputed debt doctrine provides that cancelled debt is not taxable unless it

represents a bona fide obligation of the debtor.

The "contested liability" or, as it is occasionally known, "disputed debt" doctrine

rests on the premise that if a taxpayer disputes the original amount of a debt in

good faith, a subsequent settlement of that dispute is "treated as the amount of

debt cognizable for tax purposes."

Preslar v. Commissioner, 167 F.3d 1323, 1327 (10th Cir. 1999) citing Zarin v. Commissioner,

916 F.2d 110, 115 (3d Cir. 1990) 2

If the amount of the debtor’s legal obligation to pay is in dispute, then a discharge of the

obligation may not be taxable. Id. However, this exception is also inapplicable to the present

facts. Fred did not dispute the amount or validity of his obligation. To the contrary, he

specifically acknowledged the amount due and simply indicated an unwillingness to pay.

4. Linda’s payment of $700 to Fred violated rules 5.4 and 7.2 of the Pennsylvania

Rules of Professional Conduct.

The Rules of Professional Conduct prohibit sharing of legal fees with nonlawyers except

in very limited circumstances. Rule 5.4, Professional Independence of a Lawyer, provides in

relevant part as follows:

A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may

provide for the payment of money, over a reasonable period of time after the

lawyer's death, to the lawyer's estate or to one or more specified persons;

(2) a lawyer who undertakes to complete unfinished legal business of a deceased

lawyer may pay to the estate of the deceased lawyer that portion of the total

compensation which fairly represents the services rendered by the deceased

lawyer;

(3) a lawyer or law firm may include nonlawyer employees in a compensation or

retirement plan, even though the plan is based in whole or in part on a profit-

sharing arrangement;

(4) a lawyer or law firm may purchase the practice of another lawyer or law firm

from an estate or other eligible person or entity consistent with Rule 1.17; and

2 The Preslar court also stated that “[t]o implicate the contested liability doctrine, the original amount of the debt

must be unliquidated.”

7

(5) a lawyer may share court-awarded legal fees with a nonprofit organization

that employed, retained or recommended employment of the lawyer in the matter.

Pa. R.P.C. 5.4(a). The comments to Rule 5.4 elaborate on this prohibition:

These limitations are to protect the lawyer’s professional independence of

judgment.

* * *

Where someone other than the client pays the lawyer's fee or salary, or

recommends employment of the lawyer, that arrangement does not modify the

lawyer's obligation to the client. As stated in paragraph (c), such arrangements

should not interfere with the lawyer's professional judgment.

Pa. R.P.C. 5.4 cmts. 1, 2.

In addition to the restriction provided by rule 5.4, Pa. R.P.C. 7.2 (c) provides in relevant

part:

A lawyer shall not give anything of value to a person for recommending the

lawyer’s services, except that a lawyer may pay:

(1) the reasonable cost of advertisements or written communications

permitted by this Rule;

(2) the usual charges of a lawyer referral service or other legal service

organization; and

(3) for a law practice in accordance with Rule 1.17.

The comments to the rule 7.2 elaborate on this prohibition as follows:

[A] lawyer is allowed to pay for advertising permitted by this Rule, but otherwise

is not permitted to pay another person for recommending the lawyer’s services or

for channeling professional work in a manner that violates Rule 7.3. A

communication contains a recommendation if it endorses or vouches for a

lawyer’s credentials, abilities, competence, character, or other professional

qualities. . . .

Pa. R.P.C. 7.2 cmt. 6.

Here, Fred is a non-lawyer who has explicitly recommended Linda’s services.

Linda’s note indicated the payment was intended to be a one-third share of her

fee. Linda is barred from sharing fees with Fred by Rule 5.4, and she is barred

from paying Fred for recommending her services by Rule 7.2. Thus Linda’s

actions violated both of those sections of the Rules of Professional Conduct.

8

Question No. 1: Grading Guidelines

1. Requirements for valid will - holographic will

Comments: Candidates should recognize that handwritten wills are valid under Pennsylvania

law where the requirements for a will are met, and that a valid holographic will can effectively

revoke a prior will.

6 points

2. Elective share of surviving spouse

Comments: Candidates should recognize that a surviving spouse has the right to take a one-third

elective share of the deceased spouse’s probate estate, and that the assets not charged to the

elective share will pass to the intended beneficiaries under the will.

5 points.

3. Federal tax consequences of discharge of indebtedness

Comments: Candidates should recognize that cancellation of debt may lead to taxable income

and that there is an exception where the forgiveness was a gift.

4 points.

4. Professional Responsibility – payment of fees to non-lawyer

Comments: Candidates should recognize that sharing fees with a non-lawyer and paying for

recommendations may violate the Rules of Professional Conduct.

5 points.

9

Question No. 2

Val, a 70-year-old retired grandmother, was driving her motor vehicle in Z County,

Pennsylvania, in March 2017 when she was involved in a head-on collision with an automobile

operated by Cathy. The collision was solely caused by Cathy’s negligence. Before the

emergency medical technician (EMT) personnel arrived, Rose, a licensed registered nurse who

was driving home from work at a local hospital, stopped at the accident scene, which was on her

way. Rose rendered minor assistance to Val for the bloody gash on her forehead, realizing that

Val was losing a lot of blood from that wound. Rose, however, could do no more with the

resources on hand. To keep Val calm, Rose waited with her until the EMT personnel and local

police arrived.

While at the scene of the accident, Cathy came over to speak with Rose. Rose detected

the odor of alcoholic beverages on Cathy’s breath while she and Cathy were speaking. When the

responding police officer arrived at the scene, the officer observed that Cathy demonstrated no

signs of intoxication, he did not have her perform field sobriety tests, and he did not have blood-

alcohol tests conducted. No alcohol-related charges were filed against Cathy by the police.

Val was transported to a local hospital for treatment for head trauma sustained in the

accident. Val’s injuries required her to be confined to a hospital bed for three months. During

that time she was in severe pain. She would become emotionally upset when her husband Ed

and their sole child and adult daughter Beth and Beth’s two minor children visited.

Unfortunately, Val died as a direct result of the accident-related injuries caused by

Cathy’s negligent operation of her motor vehicle after her three-month hospitalization. Val had

no will when she died and the court appointed Ed administrator of her estate.

10

Ed’s standard of living was diminished after Val’s death due to the loss of her monthly

pension and social security income. This income had permitted Val and Ed to live in their house.

This economic loss required Ed to sell his residence and move into a small apartment.

Also, as a result of Val’s injuries and death, Beth was required to hire paid child-care

providers for her two minor children at a cost of hundreds of dollars per month. Prior to the

accident, Val had provided full-time, unpaid child-care for Beth’s children while Beth was

working.

Val incurred significant unreimbursed medical expenses of more than $200,000 during

her hospital confinement. The damages incurred by Val, her estate, and her family are sufficient

to establish a right to a trial by jury in Z County.

1. In addition to a loss of consortium claim, what cause(s) of action should be brought in

a lawsuit to recover damages caused by Cathy’s negligence, who should bring the

cause(s) of action, and what damages should the cause(s) of action seek?

2. Assume that suit is properly brought against Rose for alleged damages caused by the

treatment she provided to Val after the collision. In addition to denying negligence,

what defense should Rose assert at trial to the allegation that Rose’s negligence in

treating Val at the accident scene caused or contributed to Val’s injury and death and

with what likelihood of success?

3. Assume for this question that the action against Cathy proceeds and that all

permissible pleadings have been served. At the pre-trial conference being held 90

days after service of the last permitted pleading and five days before the scheduled

non-jury trial, Cathy’s attorney filed a pre-trial statement with the court with an

endorsement demanding a jury trial. No party, including Cathy, had previously

demanded a jury trial in any of the filed pleadings, and plaintiff’s attorney makes a

motion to strike Cathy’s demand. How would the court likely rule on the motion to

strike Cathy’s demand for a jury trial?

4. Plaintiff’s attorney in the action against Cathy intends to have Rose testify about

smelling alcohol on Cathy’s breath. Cathy’s attorney filed a motion in limine to

prohibit Rose from testifying about detecting the odor of alcoholic beverages on

Cathy’s breath at the scene. How will the court rule on the motion to exclude this

testimony?

11

Question No. 2: Examiner’s Analysis

1. Ed as the Administrator of Val’s estate, should file a survival action seeking

damages related to Val’s pain and suffering during her lifetime and the loss of Val’s

earning power, less personal maintenance, from the time of her death through her

expected lifetime. Ed as Val’s personal representative should also bring a wrongful

death action for the damages that he and Beth would be entitled to recover as a

result of Val’s death.

Two causes of action may be asserted as a result of Cathy’s negligence that caused Val’s

injuries and death. A survival action should be asserted by Ed as personal representative on

behalf of Val’s estate for her injuries and the damages Val suffered as a result of Cathy’s

negligence. See 42 Pa.C.S. § 8302; Tulewicz v. S.E. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d

427 (1992). A wrongful death action should be asserted by Ed as Val’s personal representative

under the Pennsylvania Wrongful Death Statute for the benefit of himself and Beth. See 42

Pa.C.S. § 8301; Pa.R.C.P. No. 2202.

The survival action and wrongful death action may be brought in one action and, as they

involve the same issues except with respect to damages, if brought in separate actions, they

would be consolidated for trial. See Tulewicz, 529 Pa. at 597, 606 A.2d at 431. The damages

that could be claimed in the complaint under the survival count are those sustained by Val in her

lifetime from March 17, 2017, to the date of her death, and the loss of Val’s earning power, less

personal maintenance, from the time of Val’s death through her expected lifespan. Kiser v.

Schulte, 538 Pa. 219 226-27, 648 A.2d 1, 4 (1994); Slaseman v. Myers, 309 Pa. Super 537, 455

A.2d 1213 (1983). The wrongful death damages would be claimed on behalf of Val’s family

members Ed and Beth for their losses, all of which relate to Cathy’s negligence.

These two causes of action are separate and have been delineated by the Pennsylvania

Supreme Court in Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994) as follows:

Wrongful death damages are established for the purpose of compensating the

spouse, children, or parents of a deceased for pecuniary loss they have sustained

as a result of the death of the decedent. The damages recoverable in a wrongful

death action include the present value of the services the deceased would have

rendered to the family, had she lived, as well as funeral and medical expenses.

A survival action, on the other hand, is brought by the administrator of the

decedent’s estate in order to recover the loss to the estate of the decedent resulting

from the tort. The measure of damages awarded in a survival action include the

decedent’s pain and suffering, the loss of gross earning power from the date of

injury until death, and the loss of his earning power - less personal maintenance

expenses, from the time of death through his estimated working life span.

Kiser, 538 Pa. at 226-27, 648 A.2d at 4 (citations omitted).

12

In Kiser, the court distinguished the two different categories of claimants. The surviving

spouse and/or other members of the decedent’s family would be compensated for damages under

the wrongful death statute. Kiser, 538 Pa. at 227, 648 A.2d at 4; 42 Pa.C.S.A. § 8301. The

decedent’s estate would be compensated through the personal representative for the decedent’s

estate under the survival action. Kiser, 538 Pa. at 226, 648 A.2d at 4.

Whether brought separately or consolidated into the same case, the two causes of action

are separate and distinct as discussed by the Court in Frey v. Pennsylvania Elec. Co., 414 Pa.

Super. 535, 607 A.2d 796 (1992) as follows:

An action for survival damages is completely unlike the action for wrongful death

brought by appellant. Under the survival statute, survival damages are essentially

those for pain and suffering between the time of injury and death. The survival

action has its genesis in the decedent’s injury, not his death. In the survival

action, the decedent’s estate sues on behalf of the decedent, upon claims the

decedent could have pursued but for his or her death. The recovery of damages

stems from the rights of action possessed by the decedent at the time of death. . . .

In contrast, wrongful death is not the deceased’s cause of action. An action for

wrongful death may be brought only by specified relatives of the decedent to

recover damages in their own behalf, and not as beneficiaries of the estate.

Wrongful death damages are implemented to compensate the spouse, children, or

parents of the deceased for the pecuniary loss they have sustained by the denial of

future contributions decedent would have made in his or her lifetime. The

damages are also meant to compensate for some administrative, funeral, and

medical expenses. This action is designed only to deal with the economic effect

of the decedent’s death upon these specified family members.

Frey, 414 Pa. Super. at 539, 607 A.2d at 798 (citations omitted). Cited with approval in Taylor

v. Extendicare Health Facilities, Inc., 147 A.3d 490, 494 n.1 (Pa. 2016) cert. denied, 137 S.CT.

1375, 2017 US Lexis 2106 (2016).

As the administrator of Val’s estate, Ed would seek damages under the survival cause of

action for damages which Val could have pursued had she lived. Damages for pain and suffering

would be recoverable because she suffered for three months from the time of injury until death.

Val was in severe pain and was emotionally upset when her relatives visited her in the hospital.

In addition, Ed could claim Val’s medical expenses if not claimed prior to Val’s death and if not

claimed under the wrongful death action. See Tulewicz, 529 Pa. at 597, 606 A.2d at 431. Ed

could also claim the loss of Val’s pension and social security from the time of her death through

her estimated life, less personal expenses. See Slaseman, 309 Pa. Super. at 549, 455 A.2d at

1219. Ed as the administrator could claim on behalf of the estate all of these damages in the

survival action.

13

The claims for lost monetary contributions and services as well as damages for funeral

and medical expenses1 are proper claims under the wrongful death statute and can be asserted by

Ed as Val’s personal representative. See 42 Pa.C.S. § 8301; Pa.R.C.P. No. 2202. Ed is a

beneficiary as defined in the Wrongful Death Statute, and he would be entitled to receive

damages from this cause of action in the proportion he would take as Val’s surviving spouse as if

she had died intestate. Ed has suffered economic loss due to Cathy’s negligent act. Those losses

include his loss of Val’s contribution to the household income, and his consequent inability to

retain the former marital residence. Beth would likely also be entitled to receive her intestate

share of the damages as Val’s daughter because she stood in a family relation to Val and suffered

a pecuniary loss from her mother’s death in the form of the loss of free child care. See In re

Estate of Wolfe, 915 A.2d 1197, 1200 (Pa. Super 2006).

In summary, Ed as the administrator of Val’s estate could bring a lawsuit against Cathy

alleging a survival cause of action on behalf of Val’s estate and a wrongful death action on

behalf of himself and Beth based upon Cathy’s negligence in causing the collision. If Ed fails to

file the action within 6 months of Val’s death, Beth could bring the wrongful death cause of

action. Pa.R.C.P. No. 2202 (b).

2. Rose should raise the good Samaritan defense in the suit that is brought against her

with respect of her treatment of Val as Rose is a licensed registered nurse and would

likely be shielded from liability on these facts.

Rose should raise the good Samaritan defense at trial. By statute, Pennsylvania grants

certain individuals including licensed registered nurses immunity from civil damages when those

individuals render emergency care in good faith at the scene of an emergency. The Pennsylvania

statute providing this immunity provides, in relevant part, as follows:

§ 8331. Medical good Samaritan civil immunity.

(a) General rule.--Any physician or any other practitioner of the healing arts or any registered nurse, licensed by any state, who happens by chance upon the scene of an emergency . . . or who is present when an emergency occurs and who, in good faith, renders emergency care at the scene of the emergency, shall not be liable for any civil damages as a result of any acts or omissions by such physician or practitioner or registered nurse in rendering the emergency care, except any acts or omissions intentionally designed to harm or any grossly negligent acts or omissions which result in harm to the person receiving emergency care.

(b) Definition.--As used in this section "good faith" shall include, but is not

limited to, a reasonable opinion that the immediacy of the situation is such that

the rendering of care should not be postponed until the patient is hospitalized.

42 Pa.C.S. § 8331.

1 It must be noted that duplicate damages are not permitted. Therefore, it Ed as the personal representative for Val’s

estate would not be awarded medical expenses under both the wrongful death action and the survival action. See

Tulewicz, 529 Pa. at 597, 606 A.2d at 431.

14

The facts state that Rose is a licensed registered nurse in Pennsylvania who came upon

the scene of the accident and rendered minor assistance to Val before the EMT personnel arrived.

On these facts Rose is protected by the statute. She is a licensed, registered nurse who happened

on the accident scene by chance as it was on her way home from work. The facts indicate that

Rose acted in good faith to render immediate care to Val by treating the bloody gash on Val’s

forehead that was bleeding profusely. She also waited with Val until the EMT’s arrived in order

to keep Val calm. There are no facts that would support a claim against Rose for intentional

actions to harm Val or that Rose was grossly negligent in her provision of care. Additionally, the

facts state that Rose provided the care she was able to with the resources at hand. Thus, Rose

will likely be successful in asserting the good Samaritan defense to the negligence suit brought

against her.

3. The court will likely deny Cathy’s demand for a jury trial that she made in her

pretrial statement because it was filed more than 20 days after service of the last

permissible pleading and so is untimely.

The Pennsylvania Rules of Civil Procedure set forth the method and time period during

which a demand for a jury trial must be made by a party in which that right exists. Pa.R.C.P. No.

1007.1 provides in relevant part as follows:

Rule 1007.1. Jury Trial. Demand. Waiver.

(a) In any action in which the right to jury trial exists, that right shall be deemed

waived unless a party files and serves a written demand for a jury trial not later

than twenty days after service of the last permissible pleading. The demand shall

be made by endorsement on a pleading or by a separate writing.

The pleadings allowed by the rules are as follows:

(a) . . . [T]he pleadings in an action are limited to

(1) a complaint and an answer thereto,

Note: The term “complaint” includes a complaint to join an additional defendant.

(2) a reply if the answer contains new matter, a counterclaim or a cross-claim,

(3) a counter-reply if the reply to a counterclaim or cross-claim contains new

matter,

(4) a preliminary objection and a response thereto.

Pa.R.C.P. No. 1017 (a).

15

The rule provides that a demand for a jury trial must be filed within 20 days of service of

the last permissible pleading. Cathy first presented her demand for a jury trial by an

endorsement on a pre-trial statement presented to the court at the pre-trial conference which was

more than 20 days after the last permissible pleading. The facts state that the pre-trial conference

was held 90 days after the last permissible pleading was served. In addition, no other party has

requested a jury trial, although the facts provide that the right to a jury trial existed in this action.

Cathy or any party could have endorsed any pleading with the demand for jury trial or requested

it by a separate filing. Cathy, however, failed to request a jury trial in any manner until 90 days

after the last pleading was served as stated in the facts. A pre-trial memorandum is not a

pleading as defined by Pa.R.C.P. No. 1017; thus, it does not affect the timeline for a request for a

jury trial to be made. Further, the demand was made five days before the scheduled non-jury

trial was to commence. While the Pennsylvania Superior Court has indicated that there is some

flexibility in the application of the procedural rules regarding demand for a jury trial, see

Dauphin Deposit Bank & Trust Co. v. Pifer, 556 A.2d 904, 906-07 (Pa. Super. 1989), the

Pennsylvania Supreme Court affirmed the trial court’s order denying a jury trial to a party who

first requested a jury trial on a pre-trial memorandum when discovery was still ongoing. Jones v.

Van Norman, 513 Pa. 572, 583-84, 522 A.2d 503, 509 (1987). The demand for a jury trial was

not only made more than 20 days after the last pleading was served, it was made just five days

before the scheduled non-jury trial. Accordingly, the court would likely grant the plaintiff’s

motion to strike Cathy’s demand for a jury trial under Pa.R.C.P. No 1007.1 (a).

4. The court will likely grant the motion in limine and order that Rose not be permitted

to testify at trial to detecting the odor of alcoholic beverages on Cathy’s breath.

Evidence must be relevant to be admissible. Pa.R.E. 401 provides:

Evidence is relevant if:

(a) It has any tendency to make a fact more or less probable than it would be

without the evidence; and

(b) The fact is of consequence in determining the action.

The plaintiff’s attorney is seeking to introduce Rose’s testimony that she smelled the odor

of alcoholic beverages on Cathy’s breath at the scene of the accident. This evidence is relevant

because imbibing alcoholic beverages makes it more probable that Cathy was negligent in the

operation of her vehicle when she caused the accident.

The Pennsylvania Rules of Evidence provide that relevant evidence is generally

admissible “except as provided by law.” Pa.R.E. 402. The rules further provide that relevant

evidence may be excluded for the following reasons:

The court 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.

16

Pa.R.E. 403.

With regard to what constitutes “prejudice,” it has been explained:

“Prejudice” . . . does not mean “detrimental to a party’s case” but rather “an

undue tendency to suggest decision on an improper basis.”

Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 243, 433 A.2d 40, 47 (1981).

In Pennsylvania it has long been established that proof of intoxication is relevant when

careless or reckless driving by an actor are at issue. Rohe v. Vinson, 158 A.3d 88, 96-98 (Pa.

Super. 2016). The Pennsylvania Supreme Court, however, has stated:

[T]he mere fact of drinking intoxicating liquor is not admissible, being unfairly

prejudicial, unless it reasonably establishes a degree of intoxication which proves

unfitness to drive.

Fisher v. Dye, 386 Pa. 141, 148, 125 A.2d 472, 476 (1956) (citations omitted). The

Pennsylvania Superior Court stated,

[T]he objective criteria normally required to establish intoxication include

evidence of “staggering, stumbling, aimless wandering, glassy eyes or incoherent

mumbling.”

Locke v. Claypool, 426 Pa. Super. 528, 534, 627 A.2d 801, 804 (1993) (quoting Whyte v.

Robinson, 421 Pa. Super. 33, 41, 617 A.2d 380, 384 (1992)).

The Superior Court has further explained the Fisher criteria regarding the evidence necessary to

demonstrate intoxication as follows:

There is no precise type or amount of evidence necessary to establish the requisite degree

of intoxication; however, corroborative evidence to establish intoxication can be in the

form of lay testimony as to the . . . party’s conduct just prior or immediately after the

incident, or expert testimony interpreting the significance of the results of blood alcohol

tests.

Vetter v. Miller, 157 A.3d 943, 951 (Pa. Super. 2017) (emphasis added).

On the facts presented, neither Rose nor the responding officer saw Cathy exhibit visible

signs of intoxication. No field sobriety tests were requested by the police officers and no blood

alcohol test was conducted. Cathy was not charged by the police with an alcohol-related offense.

Therefore, it is likely the court will grant the motion in limine. See Rohe, 158 A.3d at 96, 99-100.

Rose should not be permitted to testify as to the odor of alcoholic beverages she detected

on Cathy because the mere odor of alcoholic beverages without Cathy exhibiting other indicia of

17

intoxication fails to establish “a degree of intoxication reasonably demonstrating [Cathy’s]

unfitness to drive.” See Rohe, 158 A.3d at 101.

18

Question No. 2: Grading Guidelines

1. Wrongful Death and Survival Actions

Comments: The candidate should recognize that damages can be obtained in both the wrongful

death and survival actions and these should be filed by Ed as the personal representative of Val’s

estate in one action. The candidate should discuss the relevant damages to both the wrongful

death and survival actions.

8 points

2. Good Samaritan Statute

Comments: The candidate should discuss the applicability of the good Samaritan Statute to the

facts and conclude that Rose would be exempt from liability for her actions.

5 points

3. Demand for Jury Trial and Waiver

Comments: The candidate should recognize that where the right to a jury trial exists there must

be a demand endorsed on a pleading or made by separate writing not later than 20 days after

service of the last permissible pleading and conclude that Cathy’s pre-trial memorandum with

the demand for a jury trial is not a pleading and her demand will be likely be denied by the court

as untimely.

2 points

4. Consumption of Alcoholic Beverages

Comments: The candidate should discuss that the evidence of mere consumption of alcoholic

beverages without evidence of intoxication to a degree which proves unfitness to drive is more

prejudicial than probative and conclude that the court will grant the motion in limine to exclude

Rose’s testimony that she detected the odor of alcoholic beverages on Cathy’s breath at the scene

of the automobile accident.

5 points

19

Question No. 3

Frank wanted to become a member of a local gang in C County, PA. As part of his initiation, he

had to kill Lucas, a rival gang member. Frank obtained a 9mm handgun and proceeded to a street corner

in C County where he was told Lucas hung out. Shortly after Frank arrived, Lucas showed up with his

girlfriend, Angela, who knew Frank. Frank approached Lucas, pulled out the 9mm handgun and fired

two shots at Lucas’ head in an attempt to kill him. Both shots missed Lucas and hit Angela, who was

nearby, in the chest. Frank immediately ran away.

Angela immediately fell to the ground with a large and visible pool of blood forming around her.

Mark, who did not see the shooting but was just passing by when Angela fell, ran up to Angela to assist

her. Angela, who was now barely breathing and in obvious, substantial pain, said to Mark, "Frank shot

me" and “tell my mother I love her.” Seconds later, Angela died.

The police identified Frank as the shooter and issued a “be on the lookout” for him with a

picture. Two hours after Angela was shot, Louise, an on duty police officer, recognized Frank walking

down a public street in C County. Louise immediately pulled over and approached Frank and told him

that he was being placed under arrest for the shooting of Angela two hours earlier. Louise placed

handcuffs on Frank’s wrists behind his back in accordance with standard arrest procedures. Before

placing Frank in the police car, Louise, without a search warrant, searched Frank’s person and

discovered a handgun hidden in the back of Frank’s pants immediately next to where his hands were

cuffed. Louise retrieved the gun and placed it into evidence. Later investigation would establish that

this was the gun used to shoot Angela. It is undisputed that Frank’s arrest was lawful based upon

probable cause.

Frank’s older sister, Sarah, currently 58 years of age, is a successful neurosurgeon earning about

$500,000 a year. In 1996, after completing her education and residencies, Sarah married Willy,

20

currently 59 years of age, who is a high school graduate. The couple never had children. Willy stayed

at home in C County throughout their marriage and took care of the shopping, cleaning, cooking, and

general upkeep of the home and yard. Sarah didn’t care that Willy didn’t work because she always

returned at the end of the day to their clean, million-dollar home with hot food on the table. In his spare

time, Willy took their 2016 Cadillac Escalade, which Sarah and Willy purchased with cash, to go

hunting and fishing. Everything was going smoothly with their marriage until April of 2017 when Willy

obtained conclusive proof that Sarah was having an extramarital affair. Willy immediately filed for

divorce, equitable distribution of property and alimony. Willy has attempted to obtain suitable

employment during the pendency of the divorce but has been unsuccessful due to his limited education

and the lack of jobs in the region. It is undisputed that Willy will not receive enough assets through

equitable distribution to provide for his reasonable needs and that Sarah has about $250,000 of

disposable income each year after paying all bills.

1. What is the most serious crime based on the facts that Frank should be charged with

relative to the death of Angela?

At the trial of Frank with respect to the death of Angela, the Commonwealth, having properly

notified the defense of its intention to do so, calls Mark as a witness in order to introduce Angela's

statements made to Mark, and the defense counsel raises a hearsay objection.

2. Other than excited utterance or present sense impression exceptions to the hearsay rule,

how should the Commonwealth respond to the hearsay objection raised by defense

counsel?

3. If the defense files a pre-trial motion seeking to suppress the gun found on Frank on the

basis that it was seized without a properly issued search warrant how should the

Commonwealth respond to this argument and with what likelihood of success?

4. Based on the above facts, and setting aside any potential tax ramifications, what

arguments should Willy advance to support his claim for alimony and with what likely

result?

21

Question No. 3: Examiner’s Analysis

1. The most serious charge Frank should be charged with relative to the death of Angela

under the facts is first degree murder based upon a theory of transferred intent.

“A criminal homicide constitutes murder of the first degree when it is committed by an intentional

killing.” 18 Pa.C.S.A. § 2502 (a). An intentional killing is defined, in pertinent part, as any “willful,

deliberate and premeditated killing.” 18 Pa.C.S.A. § 2502 (d). “In order to prove murder of the first

degree, the Commonwealth must show that a human being was unlawfully killed, that the accused

committed the killing, and that the killing was done in an intentional, deliberate and premeditated

manner.” Commonwealth v. May, 656 A.2d 1335, 1340 (Pa. 1995) (citation omitted).

To be convicted of first-degree murder, a person must kill with intent and with malice aforethought.

Commonwealth v. Ragan, 560 Pa. 106, 126, 743 A.2d 390, 400 (Pa. 1999) (quoted in Commonwealth v.

Hamilton, 2001 Pa. Super 11, 766 A.2d 874, 876 n. 4 (Pa. Super. 2001)). Malice has been defined as a

“wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind

regardless of social duty, although a particular person may not be intended to be injured. A finding of

malice based on a “recklessness of consequences requires that a defendant be found to have consciously

disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily

injury. Further, malice may be inferred after considering the totality of the circumstances.”

Commonwealth v. Thomas, 440 Pa. Super. 564, 656 A.2d 514, 516 (1995) (internal quotations and

citations omitted).

By statute, Pennsylvania provides for transferred intent in establishing the intent element of a crime.

That statute provides in relevant part the following:

When intentionally or knowingly causing a particular result is an element of an offense,

the element is not established if the actual result is not within the intent or the

contemplation of the actor unless:

[] the actual result differs from that designed or contemplated as the case may be, only in

the respect that a different person or different property is injured or affected or that the

injury or harm designed or contemplated would have been more serious or more

extensive than that caused . . . .

18 Pa.C.S.A. § 303(b) (1). “[U]nder the doctrine of transferred intent, criminal responsibility is not

affected by the fact that the bullets struck persons other than the one for whom they were apparently

intended.” Commonwealth v. Jones, 610 A.2d 931, 938 (Pa. 1992) (citation omitted). “[T]he degree of

guilt is not varied because mortal violence intended for one person accidentally kills another.”

Commonwealth v. Lyons, 129 A. 86, 87 (Pa. 1925) (citation omitted). See also Commonwealth v. De

Matteo, 195 A. 873 (Pa. 1938).

One of the most commonly recognized circumstances from which a jury can infer a specific intent to

kill is the use by the defendant of a deadly weapon on a vital part of the victim’s body. Commonwealth

22

v. Carbone, 524 Pa. 551, 562, 574 A.2d 584, 590 (Pa. 1990); Commonwealth v. Styler, 600 A.2d 1300,

1302 (Pa. Super. 1991).

As applied here, the facts are clear that Frank went to the street corner in C County with a 9 mm

handgun in his possession with the intention of shooting Lucas in the head and killing him. His intent to

kill can be inferred from aiming at his head which is a vital part of the body. Traveling to the scene and

obtaining the handgun also show his planning and premeditation. Malice in this case can be inferred by

considering the totality of circumstances surrounding the murder. See Thomas. However, when Frank

fired the two shots at Lucas the shots missed and accidentally hit Angela. The facts are clear that

Angela died as a result of those two shots fired by Frank. Because Frank acted in a premeditated and

deliberate manner by securing the gun, proceeding to the street corner, and firing two shots at Lucas,

there is no question that he had the intent to kill required for first degree murder. The fact that he missed

Lucas and hit Angela instead will not relieve him from criminal liability for the first degree murder of

Angela. In particular, his intent to kill Lucas will transfer to Angela even though she was not the victim

that he meant to shoot.

In sum, the most serious crime Frank should be charged with is first degree murder relative to the

death of Angela based upon the theory of transferred intent.

2. The Commonwealth should respond by stating that although the statements in question are

hearsay they should be admitted because Angela is an unavailable witness and her

statements qualify under the statement under belief of imminent death exception to the

hearsay rule.

“Hearsay is not admissible except as provided by these rules, by other rules prescribed by the

Pennsylvania Supreme Court, or by statute.” Pa.R.E. 802. Hearsay is defined as “a statement that . . .

the declarant does not make while testifying at the current trial or hearing [] and . . . a party offers in

evidence to prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c). A statement

includes “a person’s oral assertion . . . if the person intended it as an assertion.” Pa.R.E. 801 (a). A

declarant is defined as “the person who made the statement.” Pa.R.E. 801(b). Pa.R.E. 804 sets forth

exceptions to the rule against hearsay where the declarant is unavailable as a witness. “A declarant is

considered to be unavailable as a witness if the declarant . . . cannot be present or testify at the trial or

hearing because of death . . . .” Pa.R.E. 804(a)(4). A statement made under the belief of imminent death

is not excluded by the rule against hearsay if the declarant is unavailable as a witness. Pa.R.E. 804

(b)(2). A statement under belief of imminent death is defined as “[a] statement that the declarant, while

believing the declarant’s death to be imminent, made about its cause or circumstances.” Pa.R.E. 804

(b)(2).

A statement may be considered a dying declaration, and hence admissible

notwithstanding its hearsay attributes, if the declarant identifies his attacker, the declarant

believes he is going to die, that death is imminent, and death actually results. The

admissibility of a statement as a dying declaration is within the trial courts discretion.

* * *

23

A declarant’s belief in his imminent demise may be inferred from the surrounding

circumstances, including the nature of the declarant’s wounds. The victim must be aware

of his impending death.

Commonwealth v. Griffin, 684 A.2d. 589, 592 (Pa. Super. 1996) (citations omitted).

As applied here, the Commonwealth seeks to introduce the statements made by Angela to Mark

immediately before her death. In particular, the Commonwealth is attempting to have Mark testify that

Angela stated, “Frank shot me.” and “Tell my mother I love her.” These could be deemed to be

“statements” as they are oral assertions made by Angela who would be deemed to be the “declarant” as

she is the person who made the statements. The first statement would be deemed to be hearsay because

it is not being offered by the declarant, Angela, while testifying at the current trial and the

Commonwealth is clearly offering the evidence to prove the truth of the matter asserted in the statement.

Namely, the Commonwealth is attempting to show, through the statement, that Frank was the person

who shot Angela. It is arguable that the statement “Tell my mother I love her” is not hearsay as it is not

being offered for the truth of the matter asserted and should be admitted. Additionally, the

Commonwealth might try to argue that it should be admitted to support the conclusion that Angela did

believe her death was imminent. The Defense may argue that this statement is potentially prejudicial

and the Court will have to determine whether or not the portion of the statement should be excluded.

Although Angela’s first statement would be deemed to be hearsay, the Commonwealth should

argue that it should be admissible under Pa.R.E. 804 since Angela is unavailable as a witness and the

statement was made under belief of imminent death. With regard to unavailability, it is clear that

Angela, as the declarant, would be considered to be unavailable as a witness as she cannot be present to

testify at the trial due to her death. See Pa.R.E. 804 (a)(4). Since Angela is clearly unavailable, the

Commonwealth should argue that it should be admitted under the statement under belief of imminent

death exception. The statement was made by Angela, the declarant, while she arguably believed that her

death was imminent, and it was made in relation to the cause of her death. See Pa.R.E. 804 (b)(2). In

support of its argument that Angela believed that her death was imminent, the Commonwealth should

point to the evidence of her being shot twice in the chest, the large and visible pool of blood forming

around Angela, her statement to Mark to tell her mother she loves her, and the facts that she was barely

breathing and in obvious pain when Mark approached her. From these facts it can be argued that there is

an inference that Angela likely knew her death was imminent.

In summary, although the Commonwealth is attempting to introduce through Mark, Angela’s

statements, which are clearly hearsay, the Commonwealth has a strong argument that the statements

should be admitted under the statement under belief of imminent death exception to the hearsay rule as

Angela is an unavailable witness.

3. The Commonwealth should argue that this was a proper search incident to arrest under

the exception to the search warrant requirement, and the court should deny the motion to

suppress.

“The Fourth Amendment of the United States Constitution and Article I, Section 8 of the

Pennsylvania Constitution provide that individuals shall be free from unreasonable searches and

seizures.” Commonwealth v. Clark, 558 Pa. 157, 162, 735 A.2d 1248, 1251 (1999). In order for a

24

search and seizure to be reasonable, a search warrant is generally required. However, there are several

well-recognized exceptions to the warrant requirement. Commonwealth v. Lewis, 394 Pa. Super. 403,

406-07, 576 A.2d 63, 65 (1990). Incident to a lawful arrest, police officers may conduct a warrantless

search of the person arrested and the area within the person’s immediate control in order to remove any

weapons that might be used to facilitate escape or resist arrest and to prevent destruction of evidence.

Chimel v. California, 395 U.S. 752, 764 (1969); Commonwealth v. Davis, 466 Pa. 102, 109, 351 A.2d

642, 645 (1976). Whether an item has been properly seized pursuant to a search incident to arrest

depends upon the facts of each case. The central question is whether the area searched is one within

which the arrested person might gain possession of the weapon or destroy evidence. Chimel, 395 U.S. at

763. The scope of the search incident to arrest can extend to the person and the area around the person

into which he might reach in order to grab a weapon or evidentiary items. Chimel, 395 U.S. at 763, see

also Commonwealth v. Gelineau, 696 A.2d 188, 195 (Pa. Super. 1997), appeal denied, 550 Pa. 699, 705

A.2d 1305 (1998). A search incident to arrest must be “substantially contemporaneous with the arrest

and confined to the immediate vicinity of the arrest.” Commonwealth v. Wright, 560 Pa. 34, 42, 742

A.2d 661, 665 (1999). Although Pennsylvania courts could provide greater protections to a defendant

under the Pennsylvania Constitution than afforded under the Federal Constitution as discussed in

Commonwealth v. Edmunds, 526 Pa. 374, 388, 390, 586 A.2d 887, 894, 895 (1991), under the facts

presented above the analysis would likely be the same under both Constitutions.

As applied here, two hours after Angela was shot, Louise was driving down the street when she

observed Frank walking on the sidewalk. Louise approached Frank and immediately placed him under

arrest and placed handcuffs on his wrists behind his back. The facts provide that Louise had probable

cause to arrest Frank and that the arrest was lawful. Before placing Frank in the police car, Louise

proceeded to search Frank and discovered the handgun in the back of Frank’s pants immediately in the

vicinity of where his hands were cuffed. Louise proceeded to retrieve the gun and place it into evidence.

Although Louise did not secure a search warrant prior to searching Frank she was permitted to conduct

the search of his person under these circumstances. In particular, Louise had arrested Frank and had the

right to ensure that he had no weapons in his immediate control which he could use to facilitate escape,

resist arrest, or prevent the destruction of evidence. Since the gun was found immediately next to where

Frank’s hands were cuffed, and therefore in an area where he could grab the weapon, this would likely

be deemed to be a valid search incident to arrest. The search was contemporaneous with the arrest and

confined to the immediate area where Frank could gain access to the weapon. If Louise had not

conducted the search Frank could have accessed the handgun, which was immediately next to his hands,

and attempted to use the gun or potentially discarded it.

Accordingly, the Commonwealth would have a strong likelihood of success in defeating the motion

to suppress the gun.

4. Willy should argue that alimony is necessary to meet his reasonable needs and should cite

the relevant factors such as his age of 59 years, his high school education compared with

Sarah’s extensive education permitting her to practice as a neurosurgeon, and his potential

earning capacity with his high school education compared with Sarah’s $500,000 annual

income.

As a general rule where a divorce decree has been entered, “the court may allow alimony, as it

deems reasonable, to either party only if it finds that alimony is necessary.” 23 Pa. C.S.A. § 3701(a).

25

In determining whether alimony is necessary and in determining the nature, amount,

duration and manner of payment of alimony, the court shall consider all relevant factors,

including, [in pertinent part, the following]:

(1) The relative earnings and earning capacities of the parties.

(2) The ages and the physical, mental and emotional conditions of the parties.

(3) The sources of income of both parties . . . .

* * *

(5) The duration of the marriage.

* * *

(8) The standard of living of the parties established during the marriage.

(9) The relative education of the parties and the time necessary to acquire

sufficient education or training to enable the party seeking alimony to find

appropriate employment.

* * *

(12) The contribution of the spouse as homemaker.

(13) The relative needs of the parties.

(14) The marital misconduct of either of the parties during the marriage.

* * *

(16) Whether the party seeking alimony lacks sufficient property, including, but

not limited, property distributed under Chapter 35 (relating to property rights), to

provide for the party’s reasonable needs.

(17) Whether the party seeking alimony is incapable of self-support through

appropriate employment.

“Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living

established by the parties during the marriage, as well as the payor’s ability to pay.” Teodorski v.

Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004).

As applied here, Willy should argue that alimony is necessary to support his reasonable needs.

Willy, who is currently 59 years of age, has not worked outside the home for more than twenty years.

26

Willy has not been able to find a job due to his limited education and the lack of jobs in the area and is,

therefore, not able to support himself. His wife, given her income, has the ability to pay alimony to

meet his needs. In particular, the facts indicate that Sarah has $250,000 of disposable income after

expenses.

There are multiple factors that support an award of alimony to Willy under Pennsylvania law.

Sarah has been earning approximately $500,000 a year as a neurosurgeon, while Willy has had zero

earnings for the past 20 years. Sarah obviously has a substantially higher earning capacity given her

level of education than does Willy who only has a high school degree. The facts make clear that Sarah

has a substantial source of income as a neurosurgeon while Willy has none. The parties have been

married for approximately 20 years which is a marriage of significant duration. The facts also support

the argument that the parties had a high standard of living as exemplified by their million dollar home

and the Cadillac Escalade that was paid for in cash that is jointly owned by the parties. The facts

explicitly provide that Willy will not receive enough assets through equitable distribution to provide for

his reasonable needs. Willy will also argue that he has contributed throughout the marriage as the

principal homemaker. Additionally, Willy should argue that Sarah’s marital misconduct is one factor

which supports an award of alimony. All of these factors will likely support an alimony award.

27

Question No. 3: Grading Guidelines

1. Criminal Law- Murder

Comments: The candidate is expected to recognize that the most serious crime based on the facts that

Frank should be charged with relative to the death of Angela is first degree murder and should discuss

the relevant legal principals relative to murder, transferred intent, and apply the applicable facts.

5 Points

2. Evidence- Hearsay and Statement under Belief of Imminent Death Exception

Comments: The candidate is expected to recognize that although the statement at issue would likely be

deemed to be hearsay that it would likely be admissible under the statement under belief of imminent

death exception to the hearsay rule, and the candidate should discuss the applicable legal principles and

apply the relevant facts.

6 Points.

3. Criminal Procedure – Search Incident to Arrest Exception

Comments: The candidate should recognize that the gun will likely be admissible under the search

incident to arrest exception to the search warrant requirement, discuss the applicable legal principles and

apply the applicable facts.

4 Points.

4. Family Law – Alimony

Comments: The candidate should argue that reasonable alimony will likely be awarded to Willy under

the facts presented and the candidate should identify and discuss the applicable alimony factors in

support of an alimony award and apply the applicable facts.

5 Points.

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Question No. 4

Mia and Liz live in Red City, work together at XYZ Corp. (“XYZ”), and play for the

Lady Red Hawks (the “Hawks”). XYZ is a family-owned company with 50 employees. The

Hawks is a recreational but competitive and popular basketball team organized and funded by

Red City. Recently, the Red City Tribune (the “Trib”) published a letter Mia wrote saying that,

if the Congress did not pass stronger equal-pay legislation, she would no longer stand for the

National Anthem. Joe, Mia’s and Liz’s supervisor at XYZ, read Mia’s letter. That same day at

work, Joe told Mia and Liz that the letter was ridiculous because “women belong in the kitchen,

barefoot and pregnant.” Joe had hired Mia and Liz, and he sets their work schedules.

Before leaving work on the day the letter was published, Mia and Liz both properly filed

written complaints of harassment at XYZ, citing Joe’s “barefoot and pregnant” comment and his

history of sexist jokes and comments. Three days later, XYZ suspended Joe for a week without

pay and made him attend anti-harassment training.

While Joe was on suspension, Mia knelt on the floor during the National Anthem before

the Hawks game because Congress had just voted down an amendment expanding equal-pay

legislation. Many Hawks fans who had read Mia’s letter to the editor, including Joe, were at the

game. After the game, Mia told her coach that she knelt because of the congressional vote, and

she was immediately kicked off the team for violating a rule in the Red City Athletic Handbook

that states: “In a show of civic unity and community pride, all participants in Red City

recreational sports programs shall stand respectfully during the playing of the National Anthem

prior to all athletic events.”

The day after the game, and the same day Joe returned from his suspension, Mia and Liz

went to XYZ to get their schedules. Joe commented that he had been out of the office “thanks to

29

you girls.” He also told Mia that he was offended by her “antics” at the Hawks game. Joe then

informed Liz and Mia that he was taking them off the work schedule for a month so they could

focus on basketball playoffs. Mia and Liz asked Joe to reconsider because they needed money to

pay their rent, Mia was no longer on the team, and Liz had always been able to juggle work and

basketball. However, Joe, with XYZ’s support, would not put them back on the schedule.

Mia sued XYZ and Red City in federal court for violations of the First Amendment. Liz

exhausted her administrative remedies, and then brought a Title VII retaliation claim against

XYZ, also in federal court. Liz’s complaint alleges that Joe’s statement about the playoffs was a

pretext for discrimination. Both Liz and Mia properly served summonses and complaints

without requesting waiver on XYZ and Red City on the same date. The complaints allege all of

the above facts.

1. XYZ and Red City intend to file motions to dismiss Liz and Mia’s complaints for

failure to state claims upon which relief can be granted pursuant to Federal Rule

of Civil Procedure 12(b)(6):

a. When during the course of the litigation must XYZ and

Red City file the motions to dismiss?

b. Without discussing the substantive law applicable to any of

the claims, what legal standard will the court apply to

analyze the motions?

2. Red City timely files a proper motion to dismiss arguing that Mia’s complaint

fails to state a claim upon which relief can be granted because the Athletic

Association Rule requiring athletes to stand during the National Anthem does not

violate the First Amendment. How will the court rule on Red City’s motion?

3. XYZ also timely files a proper motion to dismiss Mia’s First Amendment claim

against XYZ arguing that the First Amendment does not apply to any of XYZ’s

actions. What is the constitutional basis for this position, and how will the court

rule on the motion?

4. XYZ timely files a proper motion to dismiss Liz’s complaint stating that the

complaint fails to allege facts sufficient to state a prima facie case of retaliation,

and her Title VII claim should be dismissed. How will the court rule on this

motion?

30

Question No. 4: Examiner’s Analysis

1(a). The defendants must file motions to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) prior to filing responsive pleadings and within 21 days of being

served with the complaints and summonses. However, the defense of failure to state

a claim upon which relief can be granted will not be waived if it is not raised in an

initial 12(b) motion or in a responsive pleading.

Federal Rule of Civil Procedure 12(b) provides that “[e]very defense to a claim for relief

in any pleading must be asserted in the responsive pleading if one is required. But a party may

assert the following defenses by motion . . . (6) failure to state a claim upon which relief can be

granted . . . .” F.R.C.P. 12(b). A motion to dismiss brought pursuant to Rule 12(b) “must be

made before pleading if a responsive pleading is allowed.” Id. Pursuant to rule 12(a), a party

must file a responsive pleading, or answer, within 21 days after being served with the summons

and complaint. F.R.C.P. 12(a)(1)(A)(i).1

While some defenses delineated in Rule 12(b) will be waived if they are not raised in

either a timely pre-answer motion or included in a responsive pleading, the defense of failure to

state a claim upon which relief can be granted is not such a defense. F.R.C.P. 12(h). Rather, in

addition to being permissible in a 12(b) motion filed prior to a responsive pleading, the defense

of failure to state a claim upon which relief may be granted may also be raised in a pleading

allowed under Rule 7(a), a motion for judgment on the pleadings under Rule 12(c) or at trial.

F.R.C.P. 12(h)(2).

The facts here state that XYZ and Red City intend to file motions to dismiss for failure to

state claims upon which relief can be granted. The facts also state that Liz and Mia properly

served summonses and complaints on the defendants. Accordingly, if XYZ and Red City intend

to file motions to dismiss for failure to state a claim upon which relief can be granted pursuant to

F.R.C.P 12(b), they must file such motions prior to filing answers to the complaints and within

21 days of service of the summonses and complaints. However, the failure bring 12(b) motions

prior to answering the complaint will not waive their ability to later raise the defense of failure to

state a claim upon which relief can be granted.

1(b). The court will assume that all of the well-pleaded facts alleged in the complaints are

true, draw all reasonable inferences in the light most favorable to Mia and Liz and

determine whether they have stated plausible claims.

Federal “notice pleading” does not require “detailed factual allegations” in order to

survive a motion to dismiss pursuant to Rule 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citations omitted); see also F.R.C.P. 8(a)(2) (requiring only a “short plain statement of

the claim showing that the pleader is entitled to relief”). However, Rule 8(a)(2) does call for

1 Federal Rule of Civil Procedure 12(a)(1)(A)(ii) contains alternative timeframes for filing a responsive pleading

where the defendant has agreed to waive service pursuant to Federal Rule 4(d). However, as set forth above, the

facts here state that Mia and Liz served the summonses and complaints on the defendants. Accordingly, the

alternative timeframes set forth in Rule 12(a)(1)(A)(ii) are inapplicable.

31

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must

accept all well-pleaded facts in the complaint as true, but “a plaintiff’s obligation…requires more

than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not

do.” Twombly, 550 U.S. at 555. Finally, in deciding a motion to dismiss, the court must

“construe all facts in the light most favorable to the plaintiff…and draw all reasonable inferences

in [her] favor.” United States ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency,

745 F.3d 131, 136 (4th Cir. 2014) (citations and quotation omitted).

In short, a court reviewing a motion to dismiss for failure to state a claim upon which

relief can be granted should do each of the following: (1) take note of the elements that must be

pled in order to state a claim; (2) identify allegations in the complaint that are “no more than

conclusions” and, therefore, “not entitled to the assumption of truth;” and (3) assume the truth of

well-pleaded facts and determine whether “they plausibly give rise to an entitlement [of] relief.”

Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3rd Cir. 2016).

2. If Red City files a motion to dismiss, the Court will rule that Mia’s claim against Red

City can proceed because the rule requiring athletes to stand during the National

Anthem violates the First Amendment.

Red City will seek dismissal of the First Amendment claim brought by Mia challenging

the Red City rule requiring participants in Red City recreational sports programs to stand for the

National Anthem. Because the rule seeks to compel expressive conduct in violation of the First

Amendment, the Court will deny Red City’s motion to dismiss Mia’s First Amendment claim.

The First Amendment of the United States Constitution provides, in relevant part, that

“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech.” (emphasis added). The First

Amendment is applicable to state and local governments by operation of the Fourteenth

Amendment. See Survivors Network of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785,789

(8th Cir. 2015) (citing Gitlow v. New York, 268 U.S. 652, 666 (1925)).

As explained in Texas v. Johnson, “[t]he First Amendment literally forbids the

abridgment only of ‘speech,’ but [the Court] ha[s] long recognized that its protection does not

end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (citing United

States v. O’Brien, 391 U.S. 367, 376 (1968) and Spence v. Washington, 418 U.S. 405, 409

(1974)); see also, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S.

557, 569 (1995)(“[T]he Constitution looks beyond written or spoken words as mediums of

expression.”).

In reviewing a First Amendment challenge where conduct (as opposed to written or

spoken words) are at issue, the court must first determine whether the conduct constitutes

“symbolic speech” or “expressive conduct.” Johnson, 491 U.S. at 400, 403; United States v.

O’Brien, 391 U.S. 367, 376 (1968). This determination turns on whether “[a]n intent to convey a

particularized message was present, and [whether] the likelihood was great that the message

32

would be understood by those who viewed it.” Johnson, 491 U.S. at 404 (internal quotations and

citation omitted) (alteration in original).

If regulated conduct is held to be expressive, the court then shifts its focus away from the

conduct itself and to the challenged governmental rule or regulation to determine whether the

regulation “is related to the suppression of free expression.” Id. at 403 (citing O’Brien, 391 U.S.

at 377; Spence, 418 U.S. at 414). The answer to this second inquiry will determine what

standard of review the court applies. “If the State’s regulation is not related to expression, then

[a] less stringent standard . . . for regulations of noncommunicative conduct controls.” Id.

(citation omitted). However, if the rule or regulation is related to expression, then a more

demanding standard applies. Id.

While symbolic speech implicates First Amendment protections, a conduct regulation

may still be upheld “if it is within the constitutional power of the Government; if it furthers an

important or substantial governmental interest; if the governmental interest is unrelated to the

suppression of free expression; and if the incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the furtherance of that interest.” O’Brien, 391 U.S. at

377.

In order to decide whether Mia’s conduct (the refusal to stand for the National Anthem)

constitutes “expressive conduct,” the court must determine whether Mia intended to convey a

particularized message that would be understood by those who viewed it. Johnson, 491 U.S. at

404. Mia is a basketball player for the Hawks. She wrote a letter to the editor about expanding

equal pay legislation, that many of her team’s fans read in the Tribune. In that letter, she

specifically said that if equal pay legislation did not pass, she would no longer salute the

American flag or stand for the National Anthem. Many of the same fans who read Mia’s letter to

the editor were present when she knelt during the National Anthem the night that Congress voted

against equal pay legislation. Mia even told her coach that her reason for not standing was

opposition to the vote and her commitment to fighting for pay equality.

When the court assumes all of the above factual allegations are true, it is likely that the

court will hold Mia has sufficiently alleged that in refusing to stand for the National Anthem she

had the intent to convey her opposition to the Congressional vote on legislation that she had

publicly supported. It is also likely that the court will hold that this message would be

understood by those who viewed Mia’s conduct. Given that Mia’s actions were clearly intended

to convey a message that many of the attendees at the game were likely to understand, the court

will likely hold that her conduct was “sufficiently imbued with elements of communication to

fall within the scope of the First and Fourteenth Amendments.” See Johnson, 391 U.S. at 404

(internal quotations and citation omitted).

Having concluded that Mia’s conduct constitutes expressive conduct that implicates the

First Amendment, the Court will then look at the Red City rule requiring athletes to stand during

the National Anthem, and ask whether the rule relates to the suppression of free expression.

Johnson, 491 U.S. at 403.

33

In this regard, the Supreme Court has a long history of “recognizing the communicative

nature of conduct relating to flags.” Johnson, 491 U.S. at 404 (citations omitted). Similarly, the

Supreme Court has repeatedly recognized that governmental prohibitions and mandates affecting

how citizens relate to the United States flag implicate freedom of expression. See, e.g., West

Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943); Spence v. Washington, 418

U.S. 405 (1974); Johnson, 491 U.S. at 404-05. While the Red City rule requiring athletes to

stand respectfully does not specifically reference the flag, it would be difficult for Red City to

successfully argue that standing during the National Anthem is somehow less communicative

than “conduct relating to flags.”

It is also critical that the Athletic Association Rule at issue involves compulsory action,

wherein a state actor seeks to compel conduct related to a showing of patriotism, i.e., standing

for the National Anthem. Closely related to, and often conflated with, the protection of

expressive conduct is the well-established constitutional principle that “the right of freedom of

thought protected by the First Amendment against state action includes both the right to speak

freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714

(1977) (emphasis added). The Supreme Court has repeatedly held unconstitutional any

governmental action that results in compulsory speech or expressive conduct, such as requiring

public school students to salute the flag, W.V. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943);

compelling a motorist to display a state motto on his or her license plate, Wooley, 430 U.S. at

717; or compelling a private parade organizer to admit a parade participant expressing a message

not of the organizer’s own choosing, Hurley,515 U.S. at 581.

While the Red City rule at issue does not require any utterance, and it does not expressly

reference the flag, the court will likely hold that compelling an athlete to stand for the playing of

the National Anthem is virtually indistinguishable from requiring public school students to salute

the flag. Accordingly, the court will likely hold that the Athletic Association Rule at issue

“relates to freedom of expression.”

Having determined that Mia’s conduct in kneeling for the National Anthem is symbolic

speech and that the Red City Rule at issue relates to freedom of expression, the court must

subject the rule to “the most exacting scrutiny,” or, strict scrutiny. Johnson, 491 U.S. 412. As

such, Red City must show that the Rule at issue is “necessary to serve a compelling state interest

and that it is narrowly drawn to achieve that end.” Boos v. Barry, 485 U.S. 312, 321 (1988).

It is necessary only to look at the interest asserted by Red City to determine that the rule

requiring athletes to stand for the National Anthem fails strict scrutiny. Specifically, the state

purpose is to show “civic unity and community pride.” In this regard, the Supreme Court has

repeatedly rejected similar governmental interests, explaining in one case that the state’s goal of

promoting “appreciation of history, state pride, and individualism” was “not ideologically

neutral” and not sufficiently compelling to justify an abridgment of a motorist’s right not to

display the state motto on his license plate. Maynard, 430 U.S. at 716-17 (“[W]here the State’s

interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot

outweigh an individual’s First Amendment right to avoid becoming the courier for such

message.”). Similarly, the Johnson Court rejected “preserving the flag as a symbol of

nationhood and national unity” as a sufficiently compelling state interest to support a prohibition

34

on desecration of the flag. Johnson, 491 U.S. at 410, 420. In light of these cases, it is almost

certain that the court would hold that the purported interest in “civic unity and community pride”

is not sufficiently compelling to support compelled expressive conduct.

The court will also hold that a rule compelling individuals to stand for the National

Anthem in order to promote civic unity and community pride is not narrowly drawn to achieve

this interest. In Maynard, the Supreme Court struck down a regulation requiring motorists to

display the state motto “Live Free or Die” on their license plates. Part of the Court’s reasoning

was that the state could “legitimately pursue [its purpose of promoting appreciation of history,

state, pride, and individualism] in any number of ways” without burdening individuals’ First

Amendment rights. Maynard, 430 U.S. at 717. Arguably in this case, as in Maynard, Red City

could legitimately advance unity and community pride in a number of ways that do not burden

Mia’s First Amendment rights.

Taking all of the facts set forth above (and pled in Mia’s complaint) as true, the court will

most likely hold that Mia has set forth ample facts to support a claim that the rule mandating that

Red City athletes stand respectfully during the National Anthem violates the First Amendment.

Accordingly, the court will deny Red City’s motion to dismiss.

3. The state-action doctrine is the constitutional basis for XYZ’s position that the First

Amendment does not apply to XYZ’s actions, and the court will dismiss Mia’s First

Amendment claim against XYZ.

Here, XYZ’s motion to dismiss Mia’s First Amendment claim argues that the First

Amendment is inapplicable to XYZ’s actions. The constitutional basis for this argument is the

state-action doctrine and the court will grant XYZ’s motion to dismiss the First Amendment

claim against XYZ based on this doctrine.

The state-action doctrine requires that, with limited exceptions, only a governmental

actor, not private individuals or entities, may violate an individual’s rights under the United

States Constitution. Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S.

557, 566 (1995) (“[T]he guarantees of free speech and equal protection guard only against

encroachment by the government and erect no shield against merely private conduct.” (internal

quotations and citations omitted)).

Thus, in order to establish a violation of the First Amendment, a party must show action

by a state actor:

[T]he constitutional guarantee of free speech is a guarantee only against

abridgment by government, federal or state. Thus, while statutory or common

law may in some situations extend protection or provide redress against a private

corporation or person who seeks to abridge the free expression of others, no such

protection or redress is provided by the Constitution itself.

Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (internal citations omitted).

35

In this case, it is certainly possible to infer that Mia was removed from the schedule

based on Mia’s exercise of her right to freedom of speech or expression when she wrote the letter

to the editor and/or when she knelt during the National Anthem. Joe told Mia that he thought her

letter to the editor was ridiculous because women belong in the kitchen. Joe also told Mia that

he was offended by her “antics” when she knelt for the National Anthem. 2

However, Mia’s complaint specifically alleges that XYZ is a “family-owned business.”

Thus, XYZ is a private actor, not a state actor. There is simply no factual allegation from which

a reasonable inference could be drawn by the court that the state action requirement has been

satisfied. Accordingly, Mia cannot state a claim against XYZ for violation of her First

Amendment rights, and the court will grant XYZ’s motion to dismiss Mia’s First Amendment

claim against XYZ.

4. The court will likely deny XYZ’s motion to dismiss Liz’s Title VII retaliation claim

because Liz can state a prima facie case of retaliation.

Title VII contains an anti-retaliation provision that makes it unlawful for employers to

“discriminate against” an employee “because he [or she] has opposed” a practice that Title VII

forbids or has “made a charge, testified, assisted, or participated in” a Title VII “investigation,

proceeding, or hearing . . . .” 42 U.S.C. § 2000e–3(a). To establish a prima facie case of

retaliation under Title VII, a plaintiff must demonstrate that “(1) [he or she] engaged in a

protected employee activity; (2) the employer took an adverse employment action after or

contemporaneous with the protected . . . activity; and (3) a causal [connection] exists between

the . . . protected activity and the . . . adverse action.” Abramson v. William Paterson Coll., 260

F. 3d 265, 286 (3rd Cir. 2001) (emphasis added). Some courts also expressly include within the

elements of a prima facie case that “[the] exercise of protected rights was known to defendant.”

Garner v. Cuyahoga Cty. Juv. Ct., 554 F.3d 624, 639 (6th Cir. 2009); see also Tepperwien v.

Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 n. 6 (2d Cir.2011); Hicks v. Baines, 593

F.3d 159, 164 (2d Cir.2010).

The facts alleged in Liz’s complaint likely establish the first element of a prima face case

of retaliation, i.e., that Liz engaged in a protected employee activity. Liz utilized XYZ’s internal

reporting procedures to “oppose’” Joe’s “barefoot and pregnant” statement and his “history of

sexist jokes and comments.” 42 USC § 2000e-3(a). A court would likely find that these

allegations are sufficient to establish the first element of a prima facie case of retaliation.3

2 The call of this question asks only the constitutional basis for XYZ to assert that the First Amendment does not

apply to its actions. A discussion of whether Mia’s actions in kneeling during the National Anthem constitute

expressive conduct protected by the First Amendment is found supra. 3 The Supreme Court has applied an objective reasonableness standard to hold that a plaintiff had not engaged in

protected opposition activity when reporting one passing sexual comment because there could be no reasonable

belief that there was a Title VII violation. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001). Breeden,

however, was decided on a motion for summary judgment, which has a different standard than a motion to dismiss

where the court must accept all well-pleaded facts in the complaint as true and draw all inferences in the light most

favorable to the plaintiff. United States ex rel. Oberg v. Pennsylvania Higher Education Assistance Agency, 745

F.3d 131, 136 (4th Cir. 2014). Here, Liz’s complaint alleges that she complained to XYZ not only about Joe’s single

“barefoot and pregnant” comment, but also about a “history of sexist jokes and comments.” Liz also alleged that

Joe’s conduct was such that he received a suspension and harassment training as a result. Accepting the veracity of

36

Moreover, given that Liz’s opposition activity was through formal channels and Joe was

suspended as a result, there is no question about whether XYZ was aware of Liz’s protected

activity. Joe also indicated his knowledge of Liz’s opposition when he said he had been out of

work “thanks to you girls.”

Turning to the second element of a prima face case of retaliation under Title VII, that the

employer took an adverse employment action, the Supreme Court has explained:

The anti-retaliation provision protects an individual not from all retaliation, but

from retaliation that produces an injury or harm. . . . [A] plaintiff must show that a

reasonable employee would have found the challenged action materially adverse,

which in this context means it well might have dissuaded a reasonable worker

from making or supporting a charge of discrimination.

Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations

and citation omitted).

Here, Liz’s complaint alleges that she engaged in the protected activity of opposing

prohibited conduct by filing a complaint with XYZ. Liz also alleges that the adverse

employment action that took place following Liz’s protected activity was Joe removing Liz from

the schedule for 30 days. Liz relied upon income from working at XYZ to pay her rent, and even

told Joe this. Being unable to meet one’s basic financial obligations would certainly “dissuade a

reasonable worker from making or supporting a charge of discrimination.” White, 548 U.S. at

72-73 (holding that a 37 day unpaid suspension was an adverse action, even where back pay was

subsequently awarded because “[m]any reasonable employees would find a month without a

paycheck to be a serious hardship”). Therefore, the facts alleged in Liz’s complaint will satisfy

the second element of a prima facie case of retaliation.4

Finally, there are sufficient facts alleged for Liz to establish the third element of a claim

for retaliation – a causal connection between the protected activity and the adverse action. The

plaintiff’s ultimate burden in establishing a claim for retaliation under Title VII is to prove that

retaliatory animus was the “but-for” cause of the adverse employment action. This burden is “a

higher causal burden than a plaintiff asserting a claim of direct status-based discrimination under

Title VII.” Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257-58 (3rd Cir. 2017).

However, at the prima facie stage of litigation, the plaintiff’s causal burden is “not onerous” and

these factual allegations and drawing all inferences in Liz’s favor, it is likely that the court will hold that she

properly pled the first element of a prima facie case of discrimination. 4Removing Liz from the schedule after she filed her complaint is the retaliatory adverse action at issue. As in White,

supra, this action resulted in Liz not getting paid for a month, causing her financial harm. Had the retaliation taken

the form of hostile and harassing treatment, some courts would require Liz to “satisfy the same standard used to

evaluate conventional hostile work environment claims; that is, incidents of harassment following a complaint were

sufficiently continuous and severe to have altered conditions of employment.” Cajamarca v. Regal Entertainment

Grp., 863 F. Supp.2d 237, 254 (E.D. N.Y. 2012) (emphasis added). Others, however, have raised the question of

whether the decision in White altered the standard for retaliatory harassment claims. Bergbauer v. Mabus, 934

F.Supp.2d 55, 81-82 (D.D.C. 2013) (recognizing split in the circuit courts regarding standards to be applied to

retaliatory hostile work environment claims in light of White). Here, it is not necessary to address this split because

the retaliation at issue involves “ordinary discrimination,” as it did in White.

37

is “easily met.” See e.g., Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 365 (3d Cir. 2008)

(citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

In establishing causation, a plaintiff may rely upon various types of evidence to show a

causal link between protected activity and the adverse employment action. Carvalho-Grevious,

851 F.3d at 260 (citations omitted). Such evidence may include, but is certainly not limited to,

inconsistencies in an employer’s explanation for taking an adverse action; a pattern of

antagonism; or a temporal proximity between the protected activity and the adverse action that is

“unusually suggestive of retaliatory motive.” Id. (citations and quotations omitted).5

As the Supreme Court has recognized, “[t]he cases that accept mere temporal proximity

between an employer’s knowledge of protected activity and an adverse employment action as

sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal

proximity must be ‘very close.’” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)

(citing O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001); Richmond v.

Oneok, Inc., 120 F.3d 205, 209 (10th Cir. 1997); Hughes v. Derwinski, 967 F.2d 1168, 1174-75

(7th Cir. 1992)).

Here, Liz alleges that Joe took her off the schedule within days of Liz filing a harassment

complaint. The adverse action also occurred immediately after Joe returned from his suspension

resulting from the complaint. During their conversation, Joe even said that he had been out of

work “thanks to you girls.” While courts are cautious to infer causation from temporal proximity

alone, the extremely short time frame between Liz’s protected activity and the adverse action is

“unusually suggestive of retaliatory motive.” Additionally, Liz reminded Joe that she has been

able to successfully juggle work and basketball in the past, yet he was unwilling to put her back

on the schedule. Therefore, the court is likely to find the facts pled in Liz’s complaint are

sufficient to set forth the third element of a prima facie case of retaliation under Title VII.

Because Liz can plead facts that, accepted as true, would establish all of the elements of a

prima facie case of retaliation against XYZ Corp., the court will deny XYZ’s motion to dismiss

Liz’s Title VII claim.

5 “[I]t is causation, not temporal proximity itself, that is an element of plaintiff’s prima facie case, and temporal

proximity merely provides an evidentiary basis from which an inference can be drawn.” Kachmer v. SunGard Data

Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1996). Notwithstanding, this statement, a causal connection may be inferred

where “the timing of the alleged retaliatory action [is] ‘unusually suggestive’ of retaliatory motive.” Krouse v.

American Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997).

38

Question No. 4: Grading Guidelines

1. Civil Procedure

Comments: Applicants should demonstrate an understanding of the timing requirement for and

legal standard applicable to motions to dismiss for failure to state a claim upon which relief can

be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

5 points

2. Constitutional Law

Comments: Applicants should demonstrate an understanding of the First Amendment

protections for symbolic speech, as well as the right to be free from compulsory speech, and

apply these principles to a set of facts.

6 points

3. Constitutional Law

Comments: Applicants should demonstrate an understanding that state action is required for

First Amendment protections and apply this principle to the facts provided.

3 points

4. Title VII Retaliation

Comments: Applicants should demonstrate an understanding that Title VII prohibits employers

from taking adverse employment actions in retaliation for an employee opposing discrimination

or participating in a formal complaint of discrimination. Applicants should articulate the

elements of a prima face claim of retaliation under Title VII and apply a set of facts to these

elements.

6 points

39

Question No. 5

Arnie purchased Blackacre, a large vacant lot in Rural County, Pennsylvania, in 1994. In March

1994, Arnie built a putting green and sand traps that encroached more than 100 feet onto Whiteacre, an

adjacent vacant lot owned by Bob. Arnie openly used the encroached area as if he owned it on an

almost daily basis without permission or protest from Bob, an absentee owner who never visited or

inspected Whiteacre. In March 2000, Arnie validly conveyed Blackacre to his son, Chuck. Arnie’s

deed to Chuck included the encroached portion of Whiteacre as part of the property’s legal description.

Following the conveyance, Chuck used the encroached area of Whiteacre in the same manner as his

father without protest or permission from Bob.

Arnie also owned a large two-story building in Big City, Pennsylvania (the “Building”). Arnie’s

valid deed conveyed the Building “to Chuck, then upon Chuck’s death to my son Don.” Chuck

immediately made permanent improvements to the Building’s heating, ventilation, and air-conditioning

systems without Don’s knowledge or consent and then leased the Building’s first floor to Max’s Towing

& Auto Storage (“Max”). Don, the owner of EZ Loan (“EZ”), a consumer-finance company, told Chuck

that he (Don) had an immediate right not only to use the vacant second floor for his business but also to

receive half of the rent paid by Max. Chuck refused both of Don’s demands.

In January of 2017, Big City Police (“Police”) asked Max, whose business was well-known to

Police, to tow and store allegedly stolen vehicles inside the Building. For four months, Max regularly

and continuously performed these services, which he was not legally required to do, at the request and

direction of an authorized Police official. Max’s services greatly benefited Police who were required by

state law to securely impound allegedly stolen vehicles.

Gloria lived paycheck to paycheck on a part-time, minimum-wage job. In desperate need of

money for food and rent, she applied to EZ for a $200 loan. Gloria’s loan application revealed that she

was a single mother with a ninth-grade education whose annual income placed her family below the

40

federal poverty line, and that she had no savings account and no access to alternative sources of credit.

When Don asked Gloria about a default on a job-training loan that she thought had been a grant, it was

clear to Don that Gloria had no understanding of credit and finances. Telling her, “This is the only deal

that I’ll give you,” Don gave Gloria a lengthy form loan agreement printed in small type and written in

hard-to-understand language to sign. Buried in the agreement were the loan terms: Gloria was to make

twenty-six, bi-weekly, interest-only payments of $60, followed by a twenty-seventh payment comprising

both interest of $60 and the original principal of $200. The total repayments added up to $1,820,

representing a cost of credit of $1,620 and an annual percentage interest rate of 838.45%. Without

reading the agreement and relying upon Don’s assurances that this was a good deal for her, Gloria

signed the agreement.

1. In July 2017, Bob had a survey performed in anticipation of selling Whiteacre and

discovered that the putting green and sand traps were on Whiteacre. Upon receiving the

survey, Bob demanded that Chuck immediately stop using the putting green and sand

traps. In response, Chuck planned to file a quiet title action to establish ownership of the

encroached portion of Whiteacre. What property-law theory should Chuck assert in his

quiet title action, and will it be successful?

2. (a). What legal interests were created in the Building by Arnie’s conveyance?

(b). Don sued Chuck for use of the second floor of the Building and for one-half of all

rents paid to Chuck by Max. Will Don’s suit be successful?

(c). Chuck filed a counter-claim against Don seeking to recover the cost of the

permanent improvements made to the Building. Will Chuck’s counterclaim be

successful?

3. Assume for this question that ordinary contract principles apply to Police. Max sent a bill

to Police seeking payment for towing services and for storing the allegedly stolen

vehicles for four months. Police refused to pay Max’s bill claiming that a valid contract

did not exist between the parties. Can Max successfully establish that he had a valid

contract with the Police to perform towing and storing services?

4. When Gloria defaulted on the loan, EZ sued for $1,820 plus penalties, interest, costs, and

attorney’s fees provided for in the loan agreement. Does Gloria have a meritorious

contract defense to EZ’s suit on the ground of unconscionability?

41

Question No. 5: Examiner’s Analysis

1. Chuck should assert that he is the owner of the disputed portion of Whiteacre by virtue of

adverse possession. Based upon this theory, Chuck’s quiet title action should be successful.

In order to prevail in his quiet title action, Chuck should assert that he now owns the portion of

Whiteacre on which the putting green and sand traps are located by virtue of adverse possession.

“Adverse possession is an extraordinary doctrine which permits one to achieve ownership of another’s

property by operation of law.” Flannery v. Stump, 786 A.2d 255, 258 (Pa. Super. 2001), appeal denied,

803 A.2d 735 (Pa. 2002). “[O]ne who claims title [to real property] by adverse possession must prove

that he [or she] had actual, continuous, exclusive, visible, notorious, distinct and hostile possession of

the land for twenty-one years.” Conneaut Lake Park, Inc. v. Klingensmith, 66 A.2d 828, 829 (Pa. 1949)

(citations omitted). The claimant bears the burden of proving each element of adverse possession by

credible, clear and definite proof; “otherwise, the possession will not confer title.” Flannery, 786 A.2d

at 258.

When used in reference to a claim of adverse possession, “actual possession [generally] refers to

dominion over the land; it is not equivalent to occupancy.” Fred E. Young, Inc. v. Brush Mtn.

Sportsmen’s Ass’n, 697 A.2d 984, 990 (Pa. Super. 1997), appeal denied, 722 A.2d 1057 (Pa. 1998); cert.

denied, 525 U.S. 876 (1998) (citations and quotations omitted). “[W]hat constitutes actual possession of

[real] property for purposes of adverse possession [is fact specific and depends,] to a large extent, on the

character of the premises.” Watkins v. Watkins, 775 A.2d 841, 846 (Pa. Super. 2001) (citation omitted).

The elements of “‘visible and notorious possession,’ as applied to the adverse holding of land by

a party without color of title, mean . . . conduct sufficient to place a reasonable person on notice that his

or her land is being held by the claimant as his own.” Brennan v. Manchester Crossings, Inc., 708 A.2d

815, 818 (Pa. Super. 1998), appeal denied, 727 A.2d 1115 (Pa. 1998). The elements of distinct and

exclusive possession do not require absolute exclusivity; “[r]ather, it need only be a type of possession

which would characterize an owner’s use.” Id.

When considered as an element of adverse possession, the word “hostile” does not mean “ill-

will” or “hostility,” but implies an assertion of ownership rights adverse to that of the true owner and all

others. Schlagel v. Lombardi, 486 A.2d 491, 494 (Pa. Super. 1984). “‘An adverse possessor must

intend to hold the land for himself, and that intention must be made manifest by his acts. . . . He must

keep his flag flying and present a hostile front to all adverse pretensions.’” Klos v. Molenda, 513 A.2d

490, 492 (Pa. Super. 1986), quoting Smith v. Peterman, 397 A.2d 793, 796 (Pa. Super. 1978).

Finally, a claimant must show that his possession has been continuous and uninterrupted for a

designated period of time. Fred E. Young, Inc., 697 A.2d at 990. The required period of adverse

possession in Pennsylvania - twenty-one (21) years – is established by statute. See, 42 Pa.C.S.A. §

5530(a)(1). Day-to-day use is not required to satisfy the continuity element. Fred E. Young, Inc., 697

A.2d at 990.

42

The facts here state that Arnie installed a putting green and sand traps on a portion of Whiteacre

without Bob’s permission. The facts further state that Arnie openly used this portion of Whiteacre as if

he owned it on an almost daily basis. Chuck also used this portion of Whiteacre in the same manner

after he acquired possession in 2000. The construction of improvements and the manner of possession

exercised by both Arnie and Chuck over this portion of Whiteacre satisfy the elements of actual,

continuous, exclusive, visible, notorious, distinct, and hostile possession of the land necessary for

adverse possession under Pennsylvania case law. The only problem is that neither Arnie nor Chuck

individually possessed the land for the full twenty-one (21) year statutory period.

Pennsylvania law, however, recognizes the periods of possession of successive adverse claimants

can be added together or “tacked on” to satisfy the full twenty-one (21) year statutory period. 1 RONALD

M. FRIEDMAN, LADNER PENNSYLVANIA REAL ESTATE LAW, § 11.03(b) (George T. Bisel Co., Inc. 6th ed.

2014). In order for tacking to occur, “there must be privity between the successive occupants of the

property. Privity refers to a succession of relationship to the same thing, whether created by deed or

other acts or by operation of law.” Watkins, 775 A.2d at 846 (citations omitted). In this case, privity

clearly exists because Arnie actually included the portion of Whiteacre subject to the adverse possession

claim as part of the legal description in his deed to Chuck. Because privity exists between Arnie and

Chuck, Arnie’s period of adverse possession can be tacked onto Chuck’s period of adverse possession

for purposes of satisfying the twenty-one (21) year requirement established by statute.

Therefore, Chuck should prevail in his quiet title action because he can establish all of the

elements of an adverse possession claim and he can tack on Arnie’s period of adverse possession, from

March 1994 to March 2000 or 6 years, to his own period of adverse possession, from March 2000 to

July 2017 or sixteen and one-quarter (16 ¼) years, to satisfy the twenty-one (21) year statutory

requirement.

2(a). Chuck has a life estate, and Don has a vested remainder in the Building.

“A life estate arises when [a] conveyance or will expressly [or implicitly] limits the duration of

the created estate in terms of the life or lives of one or more persons. SHELDON F. KURTZ, MOYNIHAN’S

INTRODUCTION TO THE LAW OF REAL PROPERTY, 64 (4th ed. 2005). “[T]he use of . . . particular phrases

or words of art is not required . . . to create . . . a life estate.” In re Appeal of Bd. of Sch. Dirs. of Owen

J. Roberts Sch. Dist., 457 A.2d 1264, 1266 (Pa. 1983). In this case, the language in Arnie’s deed stating

that the interest granted to Chuck terminates upon Chuck’s death would be viewed as granting Chuck a

life estate in the Building. See, MOYNIHAN, supra.

A remainder is a future interest in favor of someone other than a grantor which is capable of

becoming possessory upon the natural expiration of a prior estate of lesser duration created at the same

time and in the same instrument. A remainder is considered to be vested if the person to whom the

interest is given is born, ascertainable, and does not have to satisfy an express condition precedent to

obtain possession. RALPH E. BOYER ET AL, THE LAW OF PROPERTY: AN INTRODUCTORY SURVEY,

184 (West Publishing Co. 4th ed. 1991). Since Don is an ascertainable life in being and does not have to

satisfy an express condition precedent to obtain possession, Don’s interest in the Building is a vested

remainder.

43

2(b). Don’s suit will be unsuccessful because Chuck is not required to share possession of the

property in which he has a life estate or any income derived from the use of the life estate.

A life tenant is entitled to both the possession and the use of the property for the term of the

tenant’s life to the exclusion of the remainderman. Deffenbaugh v. Hess, 74 A. 608, 609 (Pa. 1909); see

also RESTATEMENT (FIRST) OF PROPERTY, § 117 (Am. Law Inst. 1936). A life tenant also is entitled to

collect rents and retain profits generated from the land during the tenant’s life. WILLIAM B. STOEBUCK

& DALE A. WHITMAN, THE LAW OF PROPERTY, 60; see also In re Felker, 211 B.R. 165, 168 (Bkrtcy.

M.D. Pa. 1997), citing 51 Am Jur.2d LIFE TENANTS AND REMAINDERMEN § 32 (1970). Because a

remainder is a future interest, a remainderman has no right to possess or enjoy the property until the

prior estate ends. BOYER, supra, at p. 189.

Therefore, Chuck had the exclusive right to possess and use the Building during the period of his

life tenancy; therefore, he does not have to share possession of the Building or any income derived from

his lease of the first floor of the Building with Don, the remainderman.

2(c). Chuck’s counterclaim will be unsuccessful because a life tenant is responsible for

permanent improvements made without the acquiescence of the remainderman.

Pennsylvania law follows the traditional approach that a life tenant is responsible only for

ordinary repairs and maintenance necessary to preserve the land and the structures in a reasonable

manner, not for permanent improvements. Additionally, a life tenant must not commit or permit waste.

1 RONALD M. FRIEDMAN, LADNER PENNSYLVANIA REAL ESTATE LAW, § 2.03 (b) (George T. Bisel

Co., Inc. 6th ed. 2013) (citations omitted).

Thus, permanent improvements made by a life tenant without the acquiescence of the

remainderman are made at the expense of the life tenant even though the property is thereby made more

valuable. Appeal of Datesman, 17 A. 1086, 1087 (Pa. 1889); In Re Paxson Trust I, 893 A.2d 99, 125

(Pa. Super. 2006), appeal denied, 903 A.2d 538 (Pa. 2006) (citations omitted), see also, RESTATEMENT

(FIRST) OF PROPERTY, § 127, cmt. a (“The normal rule is that the owner of an estate for life can not

voluntarily improve the land in which he has only a limited interest and charge part of the expense

against the future interests in that land.”). The rationale behind this rule is that a life tenant should not

be allowed to improve a remainderman out of his estate by making permanent improvements that a

remainderman cannot pay for or does not desire. In re Farber’s Estate, 70 Pa. Super. 81, 86 (1918).

Because Chuck made the permanent improvements to the Building’s heating, ventilation, and air

conditioning systems without Don’s knowledge or consent, Chuck must bear the cost of these

improvements even though he is a life tenant. Therefore, Chuck’s counterclaim against Don for the cost

of the permanent improvements will be unsuccessful.

3. Max likely will be successful in establishing a valid implied-in-fact contract with Police to

perform towing and storage services.

Contracts may be classified as being express or implied-in-fact. An express contract is one

where the parties specifically declare the terms of the agreement either orally or in writing. Dep’t of

Envtl. Res. v. Winn, 597 A.2d 281, 284 n. 3 (Pa. Cmwlth. 1991), appeal denied, 602 A.2d 863 (Pa.

44

1992). An implied-in-fact contract is one “which arises where the parties agree upon the obligations to

be incurred, but their intention, instead of being expressed in words, is inferred from their acts in the

light of the surrounding circumstances.” Cameron v. Eynon, 3 A.2d 423, 424 (Pa. 1939). A contract

implied-in-fact “has the same legal effect as any other contract.” Liss & Marion, P.C. v. Recordex

Acquisition Corp., 983 A.2d 652, 661 (Pa. 2009).

Because it is the parties’ outward and objective manifestation of assent, as opposed to their

undisclosed and subjective intentions, that matters in determining intent to contract, an implied-in-fact

contract “can be found by looking to the surrounding facts of the parties’ dealings.” Ingrassia Const.

Co., Inc. v. Walsh, 486 A.2d 478, 483 (Pa. Super. 1984) (citation omitted). Therefore, an offer and an

acceptance and a moment of formation do not need to be identified in order for an implied-in-fact

contract to be legitimately inferred. RESTATEMENT (SECOND) OF CONTRACTS, § 22(2) (Am. Law Inst.

1981).

Moreover, Pennsylvania law generally will imply “a promise to pay for valuable services

rendered with the knowledge and approval of the recipient . . . . A promise to pay the reasonable value

of the service is implied where one performs for another, with the other’s knowledge, a useful service of

a character that is usually charged for, and the latter expresses no dissent or avails himself of the

service.” Martin v. Little, Brown & Co., 450 A.2d 984, 987 (Pa. Super. 1981) (internal quotations and

citations omitted).

The facts in this case are substantially similar to those in Crawford's Auto Ctr., Inc. v. Commw.

of Pa., 655 A.2d 1064 (Pa. Cmwlth.1995) appeal denied, 666 A.2d 1059 (Pa. 1995). In Crawford, the

court held that an implied-in-fact contract existed when a company towed and stored allegedly stolen

vehicles and vehicle parts at the request of the Pennsylvania State Police. The Crawford court

determined that the State Police’s requests for towing and storage services and the company’s

compliance with the requests over a period of time established a contract implied-in-fact. Crawford,

655 A.2d at 1068-69.

Like the towing company in Crawford, Max can assert that an implied-in-fact contract was

created based on the outward and objective manifestation of intent to contract as seen in the surrounding

circumstances. Max can argue that an implied contract can be inferred based upon their regular course

of dealings because the Police, knowing that Max was in the towing and storage business, asked Max

through its authorized official to provide towing and storage services and that Max responded by

performing those services over a period of four months. Additionally, Max rendered a useful service

(i.e. – towing and storage of vehicles and vehicle parts) of a character for which a charge is imposed and

the Police regularly and continuously availed themselves of Max’s services.

Based upon the stated facts, the trier of fact would likely determine that the regular course of

dealings outwardly manifested an intent to contract on the part of the parties. Therefore, Max likely will

be successful in establishing a valid implied-in-fact contract with the Police to perform towing and

storage services.

4. Based upon the stated facts, Gloria has a meritorious defense to EZ’s suit on the ground of

unconscionability.

45

An unconscionable contract has been described as one “such as no man in his senses and not

under delusion would make on the one hand, and as no honest or fair man would accept, on the other.”

Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 450 n. 12 (D.C. Cir. 1965) (internal quotations

and citations omitted). The doctrine of unconscionability has been applied in Pennsylvania as both a

statutory and a common-law defense to the enforcement of an allegedly unfair contract or contractual

provision. Denlinger, Inc. v. Dendler, 608 A.2d 1061, 1067 (Pa.Super. 1992). The party challenging a

contract or a contractual provision as unconscionable generally bears the burden of proving

unconscionability. Bishop v. Washington, 480 A.2d 1088, 1094 (Pa. Super. 1984). “If a contract or term

thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract . . .

.” RESTATEMENT (SECOND) OF CONTRACTS, § 208. “The determination that a contract or term is or is

not unconscionable is made in light of its setting, purpose and effect.” Id. at cmt. a.

“[A] contract or term is unconscionable, and therefore avoidable, where there was a lack of

meaningful choice in the acceptance of the challenged provision and the provision unreasonably favors

the party asserting it. The aspects entailing lack of meaningful choice and unreasonableness have been

termed procedural and substantive unconscionability, respectively.” Salley v. Option One Mortgage

Corp., 925 A.2d 115, 119 (Pa. 2007) (citations omitted).

Procedural unconscionability considers not only the process by which the parties reached an

agreement but also the form of the agreement. Harris v. Greentree Financial Corp., 183 F.3d 173, 181

(3rd Cir. 1999). Some factors in the bargaining process which may contribute to a finding of procedural

unconscionability include the stronger party’s knowledge that the weaker party either “will be unable to

receive substantial benefits from the contract” or is unable to reasonably protect his interest due to

physical or mental infirmities, ignorance, illiteracy or inability to understand the language in the

agreement. RESTATEMENT (SECOND) OF CONTRACTS, § 208, cmt. d. Some factors concerning

contractual form which may contribute to a finding of procedural unconscionability include contracts

written in fine print or with inconspicuous, unclear, or convoluted language. See, e.g., Moscatiello v.

Pittsburgh Contractors Equip. Co., 595 A.2d 1190, 1196-97 (1991), appeal denied, 602 A.2d 860 (Pa.

1992) (finding disclaimer in fine print and on reverse side of contract unconscionable); Germantown

Mfg. Co. v. Rawlinson, 491 A.2d 138, 145-47 (Pa. Super. 1985). (finding inconspicuous clause that

imposed an abnormal allocation of risk in boilerplate language of printed form contract unconscionable).

Procedural unconscionability also may exist if the agreement is a contract of adhesion. Todd

Heller, Inc. v. United Parcel Service, Inc., 754 A.2d 689, 700 (Pa. Super. 2000). A contract of adhesion

is a standardized contract form prepared by a party with excessive bargaining power and presented to the

other party on a non-negotiable “take it or leave it” basis. Bishop, 480 A.2d at 1094. Nonetheless, a

contract is not unconscionable simply because of a disparity in bargaining power. Witmer v. Exxon

Corp., 434 A.2d 1222, 1228 (Pa. 1981) (citations omitted). “A bargain is not unconscionable merely

because the parties to it are unequal in bargaining position, nor even because the inequality results in an

allocation of risks to the weaker party.” RESTATEMENT (SECOND) OF CONTRACTS, § 208, cmt. d.

Nonetheless, “gross inequality of bargaining power, together with terms unreasonably favorable to the

stronger party, . . . may show that the weaker party had no meaningful choice, no real alternative, or did

not in fact assent or appear to assent to the unfair terms.” Id. “Once a contract is deemed to be one of

adhesion, its terms must be analyzed to determine whether the contract as a whole, or specific provisions

of it are unconscionable.” Todd Heller, Inc., 754 A.2d at 700. (internal quotations and citation omitted).

46

Substantive unconscionability involves a determination of whether the contract or a specific

contractual term is “unreasonably favorable” to the party asserting it. Salley, 925 A.2d at 119 (citations

omitted). A substantively unconscionable contract or term is one that is “overly harsh, particularly one-

sided or lopsided or manifests an outrageous degree of unfairness.” JOHN E. MURRAY, JR. MURRAY ON

CONTRACTS, § 97 [B] [2] [b] (5th ed. 2011). In modern terms, it means a bargain on terms “‘so extreme

as to appear unconscionable according to the mores and business practices of the time and place.’”

Williams, 350 F.2d at 450, quoting 1 ARTHUR L. CORBIN, CORBIN ON CONTRACTS § 128 (1963).

In this case, Gloria can point to a number of facts to support her defense that the loan agreement

with EZ is procedurally unconscionable. The loan agreement was a lengthy form printed in small type

and written in hard-to-understand language. Additionally, the terms of the loan were essentially buried

in the text of the form. Further, EZ’s loan agreement has all the earmarks of an unconscionable contract

of adhesion. Don presented the form agreement to Gloria as a take-it or leave-it proposition stating,

“This is the only deal that I’ll give you.”

Moreover, EZ learned from Gloria’s loan application and from Don’s questions that Gloria was a

single mother with a ninth-grade education whose annual income placed her family below the federal

poverty line and that Gloria had no savings account and no access to alternative sources of credit. From

the interview, Don ascertained that Gloria had no understanding of credit and financial matters. Thus,

the facts strongly support the contention that EZ, the stronger party to the transaction, knew that Gloria,

the weaker party to the transaction, would either be unable to receive substantial benefits from the

agreement or would be unable to reasonably protect her interest during bargaining due to her limited

education and desperate financial circumstances.

In addition to the form of the agreement, Gloria can point to the one-sided nature of the

agreement itself as evidencing its substantive unconscionability. The loan agreement called for finance

charges of $1,620 for a $200 loan, resulting in a disclosed APR of 838.45%. These terms are so extreme

and so imbalanced as to suggest fundamental unfairness.

Based upon all of these facts and circumstances, a court would likely conclude that Gloria has a

meritorious defense to EZ’s suit for breach of the loan agreement on the ground of unconscionability.

47

Question No. 5: Grading Guidelines

1. Adverse Possession and Tacking

Comments: Candidates should recognize that the real property of another can be acquired by adverse

possession. Candidates should discuss the various elements necessary to assert a claim of adverse

possession. Candidates also should recognize that successive periods of adverse possession can be

added together in order to satisfy the statutory time period. Candidates should apply these elements to

the stated facts in reaching a conclusion that a claim of adverse possession would be successfully

asserted.

6 Points

2. Life Tenant and Vested Remainder; Rights and Obligations of a Life Tenant

Comments: Candidates initially should identify the applicable interests in the real property as a life

estate and vested remainder. Candidates should discuss and apply the principles of law governing a life

tenant’s possession and use of the real property and responsibility to make permanent improvements to

land or structures during the term of the life estate.

5 Points

3. Implied-in-Fact Contract

Comments: Candidates should recognize that contracts can be implied based upon the parties’ outward

and objective manifestation of assent to contract. Candidates should discuss the importance of such

factors as the surrounding circumstances or the course of dealings of the parties in determining whether

an implied-in-fact contract should be found to exist. Candidates should utilize these factors in analyzing

the stated facts in order to determine whether a valid contract existed.

4 Points

4. Unconscionability

Comments: Candidates should identify the elements necessary to a defense to a contract based upon the

doctrine of unconscionability under Pennsylvania law. Candidates should examine the stated facts and

reach a well-reasoned conclusion that the elements necessary to assert an unconscionability defense

have been satisfied.

5 Points

48

Question No. 6

Beds, Inc. (“Beds”), is a Pennsylvania corporation, with its sole location in western

Pennsylvania. Beds manufactures and sells mattresses for commercial use.

Beds was formed in 1990 by its then sole shareholder, Al. Al has given some of his stock

to his two children as gifts and has sold some stock to Jim and Donna, loyal employees. Al

continues to own a majority of Beds’ stock. Al, his two children, Jim, and Donna are Beds’

current board members. Al is Beds’ president and his children are secretary and treasurer.

The board is considering opening a second operation in eastern Pennsylvania. Al has

suggested forming a new subsidiary limited liability company (“LLC”) to own and manage the

eastern site. Al has contacted Able, a Pennsylvania attorney who practices in eastern

Pennsylvania, to assist Beds with the formation of the LLC and its initial setup. Al has proposed

to Able that Beds be a 90% member of the new LLC and that Able be a 10% member. As part of

the proposed deal, Al has suggested that Able only charge Beds $1,000 for his services. Able

told Al that he would consider the proposed arrangement. Able estimates a 10% interest in the

LLC would be worth at least $10,000 at the outset, growing over time, and that his fee without

the proposed $1,000 cap would normally be $4,000.00.

Al has informally discussed his proposal to Able with the other Beds’ board members and

has indicated that he plans to present his proposal at the next board meeting. None of the other

board members likes the plan, and they feel it would not be in the best interests of Beds to give

up a 10% interest, but Al’s children do not want to vote against their father. Al’s children are

considering voting with their father at the board meeting, waiting for him to leave and then

changing their vote for the record, hoping that between the board meeting and Al’s next meeting

with Able they can convince their father to reconsider. Jim and Donna intend to oppose the plan.

49

Bill is opening a bed and breakfast near Beds’ western location. He recently met with Al

looking to purchase some low-cost beds for his new facility. Bill indicated that he was working

on a tight budget. Al indicated that he had 15 new, but outdated, mattresses left in storage. Al

advised Bill that these 15 were the only ones left and that if Bill needed more mattresses to

match them that would not be possible. Because of the discount that Al was offering Bill, and

the fact that Bill needed 14 mattresses, Bill agreed to purchase the 15 outdated mattresses,

leaving one as a spare.

Al prepared a one-page written contract to sell Bill the mattresses. The contract indicated

that delivery was to be “F.O.B. Bill’s bed and breakfast.” The contract did not otherwise

mention delivery terms or risk of loss. Payment was due within 10 days of delivery. Al had the

mattresses loaded on two of his delivery trucks to be delivered the next day. That night, during a

severe thunderstorm, lightning hit a tree causing it to fall on one of the trucks. Rain poured

through a hole in the roof of the truck damaging the seven mattresses in that truck to the point

where they could not be used. The next day Al called Bill to advise him of the accident and

indicated that Beds would deliver the remaining 8 mattresses later that day.

1. Under the Pennsylvania Rules of Professional Conduct, under what

circumstances, if any, may Able accept Al’s proposal?

2. At the next properly called board meeting, at which Al’s children, Jim, and Donna

are present, Al makes the proposal regarding Able outlined above and moves that

the board approve it.

a. What actions should Jim and Donna take under the Pennsylvania Business

Corporation Law (“BCL”) to properly oppose Al’s motion?

b. Under the BCL, if Al’s children vote with their father at the meeting and

then change their vote for the record after their father leaves the meeting,

what is the effect, if any, of their changed vote?

3. Under the Uniform Commercial Code, what, if any, are Bill’s rights and options

relative to the mattress contract between Bill and Beds?

50

Question No. 6: Examiner’s Analysis

1. Able may be permitted to represent Beds under the terms proposed by Al if he can

comply with the requirements of the Pennsylvania Rules of Professional Conduct.

The Pennsylvania Rules of Professional Conduct (the “Rules”) do not prohibit an

attorney from entering into a business relationship with a client. In fact, Rule 1.8(a) sets forth

the conditions under which an attorney might enter into a business transaction with a client as

follows:

(a) A lawyer shall not enter into a business transaction with a client or

knowingly acquire an ownership, possessory, security or other pecuniary

interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest

are fair and reasonable to the client and are fully disclosed and

transmitted in writing in a manner that can be reasonably

understood by the client;

(2) the client is advised in writing of the desirability of seeking and is

given a reasonable opportunity to seek the advice of independent

legal counsel on the transaction; and

(3) the client gives informed consent in a writing signed by the client,

to the essential terms of the transaction and the lawyer’s role in the

transaction, including whether the lawyer is representing the client

in the transaction.

Comment [1] to Rule 1.8 states that the requirements of Rule 1.8 “must be met when the lawyer

accepts an interest in the client’s business or other non-monetary property as payment of all or

part of a fee.” Clearly, Rule 1.8 applies to the proposed arrangement offered by Al.

Able may proceed with the deal if he can satisfy the tests set forth above. First, he must

be satisfied that the deal is fair and reasonable to the client. In considering this question, Rule

1.5 should also be consulted. Rule 1.5 sets forth factors to be considered in determining if an

attorney is charging a fee that is illegal or excessive. The reasonableness of this proposed

arrangement is subject to argument. Able is getting a membership interest worth $10,000 and

$1,000 in cash in exchange for doing approximately $4,000 of legal work. At first blush this

does not seem to be fair to the client, Beds. If, however, Beds is not in a position to pay the

$4,000 and will benefit in the long run from the arrangement an argument might be made that the

deal is in Beds’ best interest and is, therefore, fair. One might also consider the fact that the deal

is being offered by Beds and not Able. The disparity in values, however, does seem to weigh

more heavily against the deal being fair to Beds. If Able reaches this conclusion he should not

proceed with the representation on this basis. Assuming Able is satisfied that the deal is fair, he

51

must next describe the essential terms of the deal in writing, in language that will be understood

by Beds’ representatives, and provide that writing to Beds.

Second, Able must advise Beds in writing of the desirability of seeking advice on the deal

by independent legal counsel. The rule also requires that Beds be given adequate time to consult

with independent counsel on the transaction.

Third, Able must obtain Beds’ informed consent, in a writing signed by a duly authorized

Beds representative, both to the essential terms of the deal and as to Able’s role in the deal. Rule

1.0(e) indicates that “‘[i]nformed consent’ denotes the consent by a person to a proposed course

of conduct after the lawyer has communicated adequate information and explanation about the

material risks of and reasonably available alternatives to the proposed course of conduct.” As

part of this disclosure Able must point out potential conflicts that might arise if Able is in the

dual role of owner and counsel. Comment three to rule 1.8 states, “The risk to a client is greatest

when the client expects the lawyer to represent the client in the transaction itself or when the

lawyer’s financial interest otherwise poses a significant risk that the lawyer’s representation of

the client will be materially limited by the lawyer’s financial interest in the transaction.” It

should be noted that here the lawyer must not only comply with rule 1.8 but also with the general

conflict of interest rules set forth in rule 1.7. Under rule 1.7, Able should not accept the

representation under the terms proposed if he reasonably believes that his judgment and ability to

adequately represent the LLC would be impaired as a result of his personal financial interest in

the LLC. For example, Able, as a minority member, might want to vote against an action desired

by the majority member because the action will harm him as a minority member while benefiting

the majority member knowing that the LLC will direct him to then carry out the action when

approved.

The rules do not absolutely prohibit Able from taking on this representation with the plan

proposed by Al. They should, however, give Able significant pause in doing so. Given the

disparity between the fee that Able would charge and the value of the interest that he would

receive and the potential for conflicts (e.g., how would Able negotiate buy out provisions in the

operating agreement when his interest as a minority owner might be different than that of the

majority owner) Able would be wise to avoid taking on this representation if the representation

requires accepting a membership in the LLC to be formed as part of his fee.

2(a). Jim and Donna should vote against Al’s motion and should make sure that their

vote is duly recorded in the minutes of the board meeting.

Given Jim and Donna’s belief that Al’s proposed arrangement with Able is not in the best

interest of Beds, they should vote against Al’s motion to consummate a deal with Able on the

terms that Al has proposed. Under Section 1714 of the Pennsylvania Business Corporation Law

of 1988 (the “BCL”) Jim and Donna should be certain that their dissent is properly recorded in

the minutes of the meeting. 15 Pa.C.S.A. § 1714.

52

Section 1714 of the BCL creates a presumption that a director who is competent1 to act at

a meeting and who participates in the meeting has assented to any proposed action unless his or

her dissent is duly made and noted. It appears that Jim and Donna are competent to act. They

are not subject to a conflict of interest or other disqualification that would prevent them from

participating in or voting at the meeting. If Jim and Donna do not agree with Al’s proposed plan,

as expressed in a motion made by Al, then it is incumbent on them to vote against the motion and

be sure that their dissent is duly noted.

The BCL provides for three ways for a dissent to be memorialized. First, the board

member can assure that his or her dissent is noted in the minutes of the meeting. Second, the

board member may file his or her dissent in writing with the secretary before the adjournment of

the meeting. Third, he or she may transmit his or her dissent in writing to the secretary

immediately after the adjournment of the meeting. 15 Pa.C.S.A. § 1714; See 3 W. Edward Sell

& William H. Clark, Jr., Pennsylvania Business Corporations § 1714.2 (1997). Jim and Donna

should take one of these actions to assure that their dissent is properly recorded.

2(b). Al’s childrens’ changed vote will not be effective if they voted to approve the motion

at the meeting and then attempt to change their vote “for the record” once the

meeting has adjourned.

Section 1714 the BCL provides, “[t]he right to dissent shall not apply to a director who

voted in favor of the action.” 15 Pa.C.S.A. § 1714. Sell and Clark observe “[t]he requirement

that the dissent be in writing and the prohibition that a director who voted in favor of the action

or abstained may not later dissent address[es] the problem of a director who has undisclosed

misgivings and later wants to change his vote.” 3 W. Edward Sell & William H. Clark, Jr.,

Pennsylvania Business Corporations § 1714.2 (1997). This provision exists to assure that board

members make their positions clear to other board members at the board meeting rather than

voting with some hidden agenda in the background. Al’s children, thus, cannot vote one way

“on the record” and then try to change their vote after the meeting adjourns “for the record.”

3. Bill could demand inspection of the mattresses and at his option either treat the

contract as avoided or accept the undamaged mattresses with an adjustment to the

contract price without further right against the seller.

Article 2 of the Pennsylvania Uniform Commercial Code (the “Code”) on Sales is

generally applicable to transactions in goods. 13 Pa.C.S.A. § 2102. “‘Goods’ means all things

(including specially manufactured goods) which are movable at the time of identification to the

contract for sale other than the money in which the price is to be paid, investment securities

(Division 8) and things in action.” 13 Pa.C.S.A. § 2105(a). The mattresses being sold by Beds

are goods under the Code.

Section 2613 of the Code provides:

1 “[A] director being ‘generally competent to act’ means not disqualified by either law or practice.” 15 Pa.C.S.A. §

1714 cmt.

53

Where the contract requires for its performance goods identified when the

contract is made and the goods suffer casualty without fault of either party before

the risk of loss passes to the buyer, or in a proper case under a “no arrival, no

sale” term (section 2324) then:

(1) if the loss is total the contract is avoided; and

(2) if the loss is partial or the goods have so deteriorated as no longer to

conform to the contract the buyer may nevertheless demand inspection and

at his option either treat the contract as avoided, or accept the goods with

due allowance from the contract price for the deterioration or the

deficiency in quantity but without further right against the seller.

13 Pa.C.S.A. § 2613.

This section of the Code is controlling under the present facts. Analysis of Section 2613

under the facts reveals the following:

First, the contract between Beds and Bill presupposes the existence of specific goods (the

15 mattresses). These particular mattresses were identified when the contract was made. Also,

these are the last 15 of this type of mattress and cannot be replaced from other stock or newly

manufactured.

Second, the goods suffered a casualty without the fault of the seller or the buyer. The

lightning strike was an act of God that was not under the control of either party.

Third, risk of loss had not yet passed to the buyer. The facts indicate that Beds had

loaded the mattresses into its own vehicles to be delivered the next day and had not delivered the

mattresses to a common carrier for delivery. Section 2509(c) of the Code is applicable. Section

2509(c) provides “In any case not within subsection (a) or (b) above [(a) deals with shipment by

common carrier and (b) deals with goods held by a bailee, neither of which are applicable], the

risk of loss passes to the buyer on his receipt of the goods if the seller is a merchant; otherwise

on tender of delivery.” 13 Pa.C.S.A. § 2509(c); James J. White and Robert S. Summers,

Uniform Commercial Code, § 5-4 (4th Ed.1995). Here, since Beds is a merchant (i.e., one who

regularly deals the sale of mattresses) and the damage to the mattresses occurred prior to Bill’s

receipt of the same, risk of loss remained with Beds.

Fourth, the loss is a partial loss. Some of the mattresses that were in the delivery truck

that was not hit by the tree are undamaged and conform to the contract.

Fifth, since the loss is partial, the buyer, Bill, may demand inspection of the goods and at

his option either treat the contract as avoided or accept the undamaged goods, here mattresses,

with an adjustment to the purchase price. In either case the Bill may not seek other damages

from Beds.

54

Question No. 6: Grading Guidelines

1. Professional Conduct - Lawyer obtaining an interest in client in lieu of fee

Comments: The candidates should recognize that the rules do not absolutely prohibit a lawyer

from having an interest in his or her client’s business provided that certain requirements of

fairness, disclosure, and consent are met.

7 points

2. Business Organizations - Properly recording dissent at meeting

Comments: The candidates should recognize that a board member desiring to dissent to a

proposed action must make his or her dissent known at the board meeting and be sure that the

dissent is properly recorded and that one cannot vote one way at the meeting and then change

one’s vote after the meeting.

4 points

3. Sales - Casualty to identified goods and risk of loss

Comments: The candidates should recognize that the facts involve a casualty loss to identified

goods under the Article II of the Uniform Commercial Code. The candidates should analyze the

risk of loss issue given that the seller was transporting the goods to the buyer. The candidates

should also discuss the options available to the buyer.

9 points

55

PT

Supreme Court of Pennsylvania

Pennsylvania Board of Law Examiners

Pennsylvania Bar Examination

February 24 and 25, 2015

PERFORMANCE TEST

February 24, 2015

Use GRAY covered book for your answer to the Performance Test.

© 2015 Pennsylvania Board of Law Examiners

PLACE BAR CODED APPLICANT LABEL HERE

Question Number 3

on SofTest

56

Table of Contents

FILE

1. Assignment Memorandum .........................................................................................................1

2. Guidelines for Preparing Internal Legal Memoranda ................................................................2

3. Affidavit of Probable Cause for Search Warrant – Officer Colandro .......................................3

4. Affidavit of Probable Cause for Search Warrant – Officer Anderson .......................................4

LIBRARY

1. Pa. CONST. art. 1, § 8 ...............................................................................................................7

2. 18 Pa.C.S. § 2705 - Recklessly endangering another person .....................................................7

3. 18 Pa.C.S. § 302 – General Requirements of Culpability .........................................................7

4. 18 Pa.C.S. § 304 - Ignorance or Mistake ...................................................................................7

5. Commonwealth v. Scott, 73 A.3d 599 (Pa. Super. 2013) ..........................................................8

6. Commonwealth v. Henderson, 47 A.3d 797 (Pa. 2012) ...........................................................12

57

FILE

58

Memorandum

TO: Applicants

FROM: Mackenzie Meyers, Assistant District Attorney

RE: Assignment to draft Legal Memorandum concerning prosecuting Paul Presley

DATE: July 25, 2017

We are prosecuting defendant, Paul Presley, for the charge of recklessly endangering another person (“REAP”),

among other charges, in conjunction with his alleged attack on the victim, a street performer who poses as a

statue. The victim routinely poses as the “Rocci” statue, modeled after the boxer from the movie “Rocci.” The

real statue stands off to the side of the bottom of the main stairway leading up to the Philaburg Museum of Art.

It used to stand at the top of the stairway. The statue depicts a boxer standing with his hands raised over his

head in triumph. During the evening of November 22, 2016, Mr. Presley allegedly attacked the victim and

broke his leg with a tire iron, which is a steel bar used to help change a car tire. As part of the investigation of

Mr. Presley search warrants were secured.

Your assignment is to draft a legal memorandum addressing two issues: 1. Assuming that the first search

warrant would be found to be invalid, will the medical evidence obtained pursuant to a second search warrant

be suppressed under Article I, Section 8 of the Pennsylvania Constitution as a result of the connection between

the first and second search warrants; and 2. Will the Commonwealth be able to successfully prosecute Mr.

Presley on the charge of REAP, with the victim as the street performer, based upon the facts as we know them

and considering the defense being raised by the defendant (see below).

I was concerned that the trial judge may suppress medical evidence, data from defendant’s pacemaker, obtained

at the time of a search conducted pursuant to the first search warrant issued in this case if the judge finds that

the officer, Jack Colandro, although there was no malfeasance, lacked sufficient probable cause to search or

seize defendant’s medical records, and that the search warrant was too vague. Thus, I had a second officer, Don

Anderson, who is in the same unit as Officer Colandro - but who was not involved in the prior investigation of

the defendant - perform an investigation and obtain a second search warrant for medical records of defendant.

He has since obtained the medical records that are stored in defendant’s pacemaker and that are listed on the

affidavit of probable cause. There is no dispute that the second affidavit meets the standard for probable cause

and included all information required by the appropriate rule of criminal procedure. We will seek to use this

evidence at trial.

Mr. Presley’s counsel has argued that Mr. Presley saw the victim acting as the Rocci statue standing at the top

of the stairway at the museum and thought that the real statue had been relocated to the top of the stairway. Mr.

Presley was enraged at the thought that the Rocci statue had been relocated back to the top of the stairway and

that the statue was detracting from the “historic value” of the city. He stated that Mr. Presley swung the tire

iron believing he was hitting a statue, not the victim.

Included in the attached File is an excerpt of the narrative sections from the affidavits of probable cause for both

search warrants. You should use the facts in this memorandum and the affidavits as the basis for the analysis in

your memorandum. The attached Library includes relevant caselaw, part of the Pennsylvania Constitution, and

relevant portions of statutes for you to use in drafting your memorandum. Do not rely upon your personal

knowledge of these issues, or on cases and statutes not included in the Library. Instead you should base your

analysis and conclusions only upon the documents provided in the File and the Library.

59

Philaburg District Attorney’s Office

TO: All Staff

FROM: Mackenzie Meyers, Assistant District Attorney

RE: Guidelines and Format for Preparation of Internal Legal Memoranda

DATE: July 25, 2017

Use the following guidelines and format in the order listed for preparing all internal legal memoranda:

1. The document should be entitled “Memorandum of Law.”

2. At the top of the memorandum, include a heading similar to the heading above (e.g. – To, From, Re,

and Date). In the “From” section, state only “Applicant” do not include your name.

3. Include a brief introductory paragraph laying out the purpose of the memorandum.

4. The memorandum should be divided into sections, one for each issue discussed. Each section should

begin with a short heading that reflects the issue being addressed.

5. Each section should also include a statement setting forth the issue being addressed and a reasoned

analysis supporting your conclusion. Identify the relevant and controlling legal principles and apply

these legal principles to the facts to demonstrate the reasoning that supports your conclusion on the

issue presented. If there are facts and legal principles relevant to any point or element in your

analysis that could be argued to support a different conclusion, identify and discuss those principles

or facts.

6. Include all relevant facts needed to resolve the issues presented as well as any background facts

helpful to understanding the issues.

7. State your conclusion(s) as a positive statement that responds to the question(s) raised by the issue

presented.

8. Bluebook citations are not necessary; however, you must include sufficient informal citations to the

appropriate legal authority and affidavits of probable cause, such that I will know to which document

you are referring.

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EXCERPT OF NARRATIVE SECTION OF THE AFFIDAVIT OF PROBABLE CAUSE

OFFICER JACK COLANDRO

Your affiant is an officer with the Philaburg Police Department, currently assigned to the patrol division.

On or about November 22, 2016, at approximately 8:00 p.m. an individual abruptly stopped his car in front of

the main stairway leading up to the Philaburg Museum of Art. The individual exited his vehicle, grabbed a tire

iron from the trunk of the car, and ran up the stairway. Upon reaching the top of the stairway, the individual

struck a street performer, who often stands at the top of the stairway pretending to be the “Rocci” statue,

breaking the performer’s leg. The victim appears to be a nearly identical replica of the real “Rocci” statue.

Although the attack occurred at a time when tourists were in the area taking pictures of the victim as if he were

the real “Rocci” statue, none of the tourists got a picture of the suspect. Museum security officers saw the

individual running up the stairway with the tire iron. Fearing the individual would attack someone, they

immediately called 911 and requested that an officer be dispatched. After the suspect struck the victim, he

hesitated, then threw the tire iron into the trees beside the stairway, and ran to his car. I arrived on the scene just

moments after the suspect sped away, and the security guards greeted me at my patrol car and explained what

had happened. The security guards provided a description of the perpetrator’s vehicle, which was a white, four-

door sedan. They had no further information, and were unable to access the museum’s recorded video

surveillance from the time of the event due to a technical issue.

Knowing that a convenience store north of the museum has a video camera, I drove there to see if a

white four-door sedan had driven by since the crime. A review of the recorded video surveillance revealed that

a white, four-door sedan had driven by just moments before I arrived and shortly after the crime had been

committed. I traced the license plate, which was clearly visible on the recorded video surveillance, and

obtained the suspect’s name, Paul Presley, and address.

Your affiant believes that the suspect committed the crime at the Philaburg Museum of Art, and is

seeking a search warrant to obtain any and all evidence of the criminal activity.

61

EXCERPT OF NARRATIVE SECTION OF THE AFFIDAVIT OF PROBABLE CAUSE

OFFICER DON ANDERSON

Your affiant is an officer with the Philaburg Police Department, currently assigned to the patrol division.

On or about November 22, 2016, at approximately 8:00 p.m., Paul Presley did enter upon the property of the

Philaburg Museum of Art with a tire iron and struck a street performer who was pretending to be the “Rocci”

statue. Although the attack occurred at a time when tourists were in the area taking pictures of the victim as if

he were the real “Rocci” statue, none of the tourists got a picture of the suspect. The victim appears to be a

nearly identical replica of the real “Rocci” statue. Concurrently with the attack, Officer Jack Colandro of the

Philaburg Police Department was called to the location, and arrived just after the suspect sped away in the

direction of the convenience store just north of the museum.

Officer Colandro immediately obtained a description of the perpetrator’s vehicle from the museum

security guards, and found that it was a white, four-door sedan. They had no further information and were

unable to access the museum’s recorded video surveillance from the time of the event due to a technical issue.

Knowing that the convenience store north of the museum has a video camera, Officer Colandro drove

there to see if a white four-door sedan had driven by since the crime. A review of the recorded video

surveillance revealed that a white, four-door sedan had driven by just moments before Officer Colandro arrived

and shortly after the crime had been committed. Officer Colandro traced the license plate that was clearly

visible on the recorded video surveillance and obtained the suspect’s name and address. He then obtained a

search warrant and proceeded to the suspect’s residence. As a result of Officer Colandro’s investigation, Mr.

Presley has been charged with recklessly endangering another person.

My independent investigation into the incident has revealed the following facts from the following

sources:

Review of Paul Presley’s Website: www.presleyhatesrocci.com

I conducted a search of Mr. Presley’s public website, which contains a manifesto on why the “Rocci”

statue is a disgrace to the City of Philaburg and should be banished altogether. Information on the website

demonstrates that Mr. Presley was a strong supporter of the effort to remove the statue from the top of the

stairway at the Philaburg Museum of Art and a vocal opponent of keeping the statue anywhere on the museum

grounds. On the website, Mr. Presley stated he would destroy the statue if it were ever moved to the top of the

stairway again.

Interview with Officer Colandro

Upon arriving at the suspect’s home, Officer Colandro noticed a white, four-door sedan with the license

plate that was seen in the recorded video surveillance parked on the street. When he knocked on the front door

of the residence, the suspect answered. The suspect immediately yelled, “I didn’t do it!” and suddenly fell to

the ground on his front sidewalk.

62

Having been awakened by the flashing lights on the patrol car, Mr. Presley’s neighbor and cardiologist,

Dr. Ken Jones, who saw Mr. Presley fall, ran to assist. By then, Officer Colandro had already called 911 for

medical personnel. Dr. Jones, having implanted a pacemaker in the suspect a year earlier, told Officer Colandro

that the suspect had a pacemaker and ran to his home to obtain a medical device that could read electronic

records stored on the pacemaker. A pacemaker is a medical device implanted into a person’s chest to monitor

the heart and help control irregular rhythms. Information concerning the heartbeat of the person the pacemaker

is monitoring is recorded and can be retrieved for analysis using a special electronic device. Officer Colandro

provided aid and comfort to the suspect while awaiting medical personnel.

Dr. Jones returned with a device that was able to scan the information stored on the pacemaker by

holding the device near the suspect’s chest. While indicating that he could look back at a full year of stored

records, Dr. Jones also said he could look at just the past 24 hours of heart rhythms. He printed a long strip of

paper showing the suspect’s heart rhythms during the 24 hours leading up to the suspect’s collapse, and

concluded that Mr. Presley had no heart issue. Instead, Dr. Jones opined that the suspect simply passed out

from fear upon seeing the police at his door. Mr. Presley awoke shortly thereafter and claimed to have gone to

bed very early that evening, and was sleeping peacefully for hours at the time of the crime. He repeated this

assertion on numerous occasions during the investigation.

Officer Colandro, upon learning that the suspect was not having heart issues, asked Dr. Jones if he could

keep the strip of paper with the suspect’s heartbeat on it. Dr. Jones agreed. Officer Colandro asked for a review

of the information by a police-hired cardiologist, who concluded that the heart rate from the time the crime was

committed was inconsistent with Mr. Presley’s claim to be sleeping peacefully.

Interview with Philaburg Museum of Art Security Officers

At approximately 8:00 p.m. on November 22, 2016, the suspect abruptly stopped his car at the foot of

the stairway leading up to the Philaburg Museum of Art. The individual was observed grabbing a tire iron from

the trunk of his car, which was stopped approximately twenty feet from the real “Rocci” statue, which would

have been in plain view of the suspect. He was then seen running to the top of the stairway, where the victim

was standing motionless, covered in bronze paint, and pretending to be the “Rocci” statue. The suspect then

proceeded to hit the victim in the leg, breaking that leg. Upon seeing the victim drop to the ground, the suspect

paused, backed up, and threw the tire iron into the trees next to the stairway. He then ran back to his car and

sped away. Museum security guards called police while the alleged crime was in progress. Although Officer

Colandro arrived within minutes of the occurrence of the crime, he did not catch the suspect. Museum security

guards were not able to access the cameras in the area, but gave Officer Jack Colandro of the Philaburg Police

Department a description of the car as a white, four door sedan.

While interviewing security guards at the museum, I again asked to review recorded video surveillance.

A computer technician who happened to be onsite was able to pull up surveillance from the cameras from the

date and time of the criminal activity. The recorded video surveillance shows a man stopping his car, running

up the stairway, hitting the victim, throwing the tire iron, running back to the car, and speeding away in a white,

four-door sedan. The vehicle is the same make, model and color as Mr. Presley’s car, and also had the license

plate registered to Mr. Presley affixed thereto. The recorded video surveillance from the museum shows the

same car and license plate that turned up in the recorded video surveillance from the nearby convenience store.

63

I made a duplicate of the recorded video surveillance and showed it to Officer Colandro. He confirmed

that the clothes the man is wearing in the museum recorded video surveillance footage are the same clothes Mr.

Presley was wearing when Officer Colandro arrived at his house. The estimated height and weight of the man

in the recorded video surveillance matches the approximate height and weight of Mr. Presley.

The recorded video surveillance, car registration and license plate, clothing, body height and weight, and

interviews with the aforementioned persons are sufficient for me to form a belief that Mr. Presley was the

person who committed the crime at the Museum. As further evidence that the suspect committed the crime,

your affiant believes that the physical activity involved in running up the stairway to the Rocci street artist,

hitting the victim with a tire iron, and running back to the car would register a heart rhythm on the suspect’s

pacemaker incompatible with a heart rhythm of a person claiming to have been sleeping peacefully. I am

seeking a search warrant allowing me to seize the electronic records created and stored on Mr. Presley’s

pacemaker in order to verify the anticipated unusual physical activity that would be confirmed by his heart

rhythms at approximately 8:00 p.m. on November 22, 2016. This officer will perform the search and seizure

with the assistance of a board certified cardiologist, Dr. Karl Williams of 22 Main St., Philaburg, PA 55555,

who will be able to obtain the information without invasive methods (by holding an electronic device near Mr.

Presley’s chest). The records can be pinpointed to the exact date and time of the incident, and are reliable

enough that Dr. Jones, Mr. Presley’s cardiologist, uses the information to study Mr. Presley’s heart rhythms to

keep him alive. Thus, the evidence is of a reliable nature, is limited in time and scope, and is necessary to

dispute Mr. Presley’s claim that he was peacefully sleeping when, in reality, he was exerting himself physically

by running up the stairway, hitting the victim, and running to his car under stressful conditions.

64

LIBRARY

65

Pa. Const. art. 1, § 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.

18 Pa.C.S. § 2705. Recklessly endangering another person.

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may

place another person in danger of death or serious bodily injury.

18 Pa.C.S. § 302. General Requirements of Culpability.

(a) Minimum requirements of culpability.--[A] person is not guilty of an offense unless he acted

intentionally, knowingly, recklessly or negligently, as the law may require, with respect to each material

element of the offense.

(b) Kinds of culpability defined.--

***

(3) 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. The risk must

be of such a nature and degree that, considering the nature and intent of the actor's conduct and the

circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a

reasonable person would observe in the actor's situation.

18 Pa.C.S. §304. 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.

66

73 A.3d 599 (Pa. Super 2013)

COMMONWEALTH OF PENNSYLVANIA, Appellee

v.

DUSTIN SCOTT, Appellant

***

Dustin Scott ["Appellant"] appeals the judgment of sentence imposed following a jury trial on charges of

attempted murder, conspiracy, aggravated assault, and recklessly endangering another person ["REAP"].

(footnotes omitted) Appellant was convicted of aggravated assault and REAP, and sentenced to five to ten years

of incarceration. Upon review, we reverse.

The charges arose from a curious and violent episode that occurred in Huntingdon Borough on May 11, 2011.

Appellant was in the basement apartment of his friend, Bill Ledford, along with additional friends Josh Lemin

and Rex Cuff. (citation omitted) The group was engaged in smoking, snorting, and injecting bath salts, a lawful

practice at the time. (footnote omitted) (citation omitted) The men were fearful because an individual named

Jeremiah Shoop had attempted to "rob" Appellant's house the night before, and because Shoop now was making

death threats against the men. (citation omitted) While the group was in the apartment, Ledford received

threatening phone calls from Shoop. (citation omitted)

Shoop soon arrived at Ledford's apartment, began yelling threats at the occupants, and tried to pry the front door

open. (citation omitted) That door did not have a doorknob. Rather, a belt was tied through the hole where the

doorknob should have been, and was secured to nearby water pipes inside of the apartment. (citation omitted)

Ledford, who was "well-armed" (citation omitted), and who had distributed guns to his friends upon Shoop's

arrival (citation omitted), fired warning shots at the bottom of the door. (citation omitted) At some point, someone

turned the lights off, and the apartment became dark. (citation omitted) Ledford instructed everyone inside to lie

down. (citation omitted) Ledford then ran to the back of the apartment, saying that he was out of bullets. (citation

omitted) As Ledford was running, he also was yelling, "They're in," and "shoot, shoot!" (citation omitted)

Appellant looked around a corner and saw the standing silhouette of a man. (citation omitted) The silhouette's

arm was extended, and was pulling the trigger of a gun that was either misfiring or "dry-firing." (citation omitted)

Appellant believed that his other friends were lying on the ground, as he was. (citation omitted) Appellant

testified that he believed the standing silhouette was Shoop and that he believed Shoop was shooting at him.

(citation omitted) Appellant fired shots back for protection. (citation omitted) The silhouette actually was that

of Appellant's friend, Lemin. Upon discovering that he had shot his friend, Appellant grabbed a towel and gave

it to the aptly named Cuff to tie off Lemin's bullet wound. (citation omitted)

Appellant was charged with attempted murder, conspiracy, aggravated assault, and REAP. The Commonwealth

identified Shoop as the victim in regard to Appellant's attempted murder and conspiracy charges, and Lemin as

the victim in regard to the aggravated assault and REAP charges. The Commonwealth alleged that Appellant had

acted recklessly in shooting at Lemin.

The case proceeded to a jury trial. With respect to the aggravated assault charge, the trial court instructed the jury

67

only as to recklessness, omitting the other mental states that can establish aggravated assault. (citation omitted)

At Appellant's request, the trial court provided the jury with a self-defense instruction, but refused Appellant's

additional request to instruct the jury regarding mistake-of-fact. Appellant was found not guilty of attempted

murder and conspiracy, but was convicted of aggravated assault and REAP.

Appellant appealed. The trial court ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. He raises a single issue for our review: "Did

[Appellant] present sufficient evidence to warrant an instruction regarding Pa.S.S.J.I. § 8.304 -- Ignorance or

Mistake when [Appellant] mistakenly believed he was shooting an armed intruder threatening to kill his friend

but later learned that he shot his friend?" (citation omitted)

In reviewing a jury charge, we are to determine "whether the trial court committed a clear abuse of discretion or

an error of law which controlled the outcome of the case." (citation omitted) In so doing, we must view the

charge as a whole, recognizing that the trial court is free to use its own form of expression in creating the charge.

(citation omitted) "[Our] key inquiry is whether the instruction on a particular issue adequately, accurately and

clearly presents the law to the jury, and is sufficient to guide the jury in its deliberations." (citation omitted) It is

well-settled that "the trial court has wide discretion in fashioning jury instructions. The trial court is not required

to give every charge that is requested by the parties and its refusal to give a requested charge does not require

reversal unless the appellant was prejudiced by that refusal." (citation omitted)

Significantly, Appellant proffered the theory of self-defense as to the charges related to Shoop, but proffered the

theory of mistake-of-fact as to the charges related to Lemin. Appellant asserts that he was entitled to the jury

charge on mistake because the record showed he mistook Lemin for Shoop, and shot at Lemin, believing that in

doing so he was protecting himself and his friends. Appellant asserts that he shot Lemin by mistake, and

necessarily lacked the mens rea required for aggravated assault and REAP.

Aggravated assault and REAP both encompass a mens rea of recklessness, which can be negated by a mistake-

of-fact defense.

Aggravated assault is defined, in relevant part, as follows:

(a) Offense defined.-- A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally,

knowingly or recklessly under circumstances manifesting extreme indifference to the

value of human life. . . .

18 Pa.C.S.A. § 2702(a)(1) (emphasis added).

REAP is defined as follows:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which

places or may place another person in danger of death or serious bodily injury.

18 Pa.C.S.A. § 2705 (emphasis added).

The defense of mistake-of-fact is defined as:

68

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.

18 Pa.C.S.A. § 304.

We have held that, under certain circumstances, a mistake of fact can disprove a required element of criminal

intent:

It is well established that a bona fide, reasonable mistake of fact may, under certain circumstances,

negate the element of criminal intent. 18 Pa.C.S.A. § 304 (providing, inter alia, that ignorance or

mistake as to a matter of fact, for which there is a reasonable explanation or excuse, is a defense if

"the ignorance or mistake negatives the intent, knowledge, recklessness, or negligence required to

establish a material element of the offense" ); [citations omitted] "It is not necessary that the facts

be as the actor believed them to be; it is only necessary that he have 'a bona fide and reasonable

belief in the existence of facts which, if they did exist, would render an act innocent.' [citations

omitted] When evidence of a mistake of fact is introduced, the Commonwealth retains the burden

of proving the necessary criminal intent beyond a reasonable doubt. [citations omitted] In other

words, the Commonwealth must prove either the absence of a bona fide, reasonable mistake, or

that the mistake alleged would not have negated the intent necessary to prove the crime charged.

(citations omitted)

The trial court suggested (and the learned dissent agrees) that the mistake of fact theory of defense was fairly

encompassed within the self-defense charge (see N.T., 3/22/12, at 307, stating: "It seems to me that . . . you get

[Appellant's mistake of fact defense theory] in self-defense."). The separate statutory codification of the two

defenses refutes this suggestion. See 18 Pa.C.S.A. § 304 and 18 Pa.C.S.A. § § 505-06. The trial court offered no

rationale for declaring mistake-of-fact to be subsumed within self-defense, notwithstanding the legislative

distinction. The General Assembly's distinct enumeration of these separate defenses compels the conclusion that,

under the particular and peculiar circumstances of this two-victim case, both of the theories should have been

presented to the jury. (footnote omitted)

Ultimately, the trial court refused to give the mistake-of-fact instruction because it believed that instruction to be

inconsistent with the self-defense instruction.

***

Our Supreme Court has instructed that, when there is evidence of an affirmative defense, the trial court must

charge the jury on that defense. (citation omitted) The jury then must determine whether the defense applies to

the case at hand. A separate mistake-of-fact instruction was necessary here, in order to explain to the jury the law

applicable to that affirmative defense, and in order to allow the jury properly to deliberate. The instruction should

69

have been focused solely upon Appellant's charges as to his conduct toward Lemin, and Appellant's assertedly

mistaken belief that Lemin was in fact Shoop. The trial court's refusal to give a mistake-of-fact instruction served

to constrain the jury's deliberations in a manner inconsistent with our law and with the developed record.

In denying Appellant's request for a mistake-of-fact jury instruction, the trial court committed an abuse of

discretion. Viewing the jury charge as a whole, the instruction failed to allow adequate deliberation on Appellant's

affirmative defense theory as to the aggravated assault and REAP charges. Because it is possible that the jury

might have accepted Appellant's mistake-of-fact defense theory, thereby acquitting him of aggravated assault and

REAP, we find that the omission prejudiced Appellant, requiring a new trial. (citation omitted)

We reverse and remand for a new trial, directing the court below to provide the jury with a separate mistake-of-

fact instruction in the event that the record upon retrial is substantially similar to the one before us.

***

[Dissenting Opinion Omitted]

70

47 A.3d 797 (Pa. 2012)

COMMONWEALTH OF PENNSYLVANIA, Appellee

v.

CALVIN HENDERSON, Appellant

***

In this appeal arising in the suppression context, we consider Pennsylvania's unique variant of the independent

source rule, deriving from Commonwealth v. Mason (citation omitted).

Law enforcement officers suspected that Appellant may have co-perpetrated a violent [crime]. They sought

samples of his DNA for comparison with material obtained from the victim and a vehicle used in the commission

of the crimes. Detective Johnson . . . prepared an affidavit in support of probable cause; secured a magistrate's

approval of a search warrant; (footnote omitted) and collected samples of Appellant's blood, hair, and saliva. The

ensuing DNA analysis implicated Appellant, and he was charged with kidnapping . . . and other offenses.

Appellant lodged a pretrial motion to suppress on the ground that the detective's affidavit was insufficient to

establish probable cause. (citation omitted) ("Generally, a search or seizure is not reasonable unless it is

conducted pursuant to a search warrant issued by a magistrate upon a showing of probable cause.”). Accordingly,

Appellant contended, the seizures from his body violated his rights under the Fourth Amendment to the United

States Constitution and Article I, Section 8 of the Pennsylvania Constitution. (footnote omitted)

The motion apparently raised concerns on the prosecution's part, as a decision was made to secure a second

warrant. The strategy was to invoke the independent source doctrine as applied under Pennsylvania's Article I,

Section 8 jurisprudence, deriving from Mason. Under this rule, evidence tainted by illegal police conduct (such

as an unlawful seizure) nevertheless may be admitted into evidence if the evidence can be fairly regarded as

having an origin independent of the unlawful conduct. (citation omitted) ("If the prosecution can demonstrate

that the [challenged] evidence was procured from an independent origin -- a means other than the tainted sources

-- the evidence will be admissible."). . . . Pursuant to the doctrine as it subsequently evolved in Commonwealth v.

Melendez (citation omitted) the independent source is to be "truly independent from both the tainted evidence and

the police or investigative team which engaged in the misconduct by which the tainted evidence was discovered."

(citation and footnote omitted) . . . .

Another member of [Detective Johnson’s unit], Detective Evans, was tasked with undertaking a probable-cause

investigation to support a second search warrant. Detective Evans spoke with Detective Johnson, reviewed the

existing case file and the victim's medical records, conducted an inquiry into Appellant's background, and

interviewed one collateral witness. He then applied for and secured a second warrant, which was used to seize

an additional sample of blood from Appellant.

In response, Appellant filed a second suppression motion. In it, he asserted that the evidence secured under the

second warrant was not the product of an independent source. According to the motion, the "vast majority" of

the information contained in Detective Evans' affidavit derived from the information previously gathered by

Detective Johnson. Appellant further highlighted that Detective Evans was commissioned in direct response to

the defense's first suppression motion. For these reasons, Appellant contended that the evidence "remains tainted

by the original illegally seized evidence."

Detective Evans testified at the hearing on the suppression motions. In the brief direct examination, he indicated

that, although he had been a member of [Johnson’s] squad, he did not participate in the original investigation of

Appellant's crimes. He explained that he had been tasked with securing a search warrant in March 2006, and, in

71

preparation, he reviewed the reports in the case file, including medical records and crime laboratory reports;

(footnote omitted) conducted an inquiry into Appellant's criminal record; and spoke with a collateral witness.

(citation omitted) Further, the detective attested that he did not rely on the warrant obtained by Detective Johnson.

(citation omitted)

On cross-examination, Detective Evans confirmed that he had reviewed the materials assembled by Detective

Johnson and had spoken with him. (citation omitted). He also acknowledged that he had reviewed the first

warrant and affidavit of probable cause, (citation omitted) but he again denied having relied upon the first warrant.

(citation omitted). The detective conceded that he did not interview the victim, the main eyewitness, or several

other witnesses, (citation omitted), and that the first nine paragraphs of his affidavit “came from" Detective

Johnson's investigation. (citation and footnote omitted) Although he did not agree that his efforts represented a

mere expansion on Detective Johnson's work, (citation omitted) Detective Evans did say that many aspects of his

affidavit derived “[f]rom the people that had done the investigation before" him. (citation omitted) Further, the

detective confirmed that he at least knew that a motion to suppress was “on the way" at the time he received the

assignment to perform a probable-cause investigation. (citation and footnote omitted)

The suppression court denied Appellant's motions. In relevant part, it ruled that, while Detective Johnson's

affidavit was insufficient to support a probable-cause determination, Detective Evans' was adequate and

unconnected with the first investigation. According to the court, Detective Evans' affidavit "was a totally separate

account of the facts evidence [sic] obtained in the investigation into the [crime]" and "[n]o causal nexus existed

between the blood test results obtained as a result of the first warrant and Detective Evans' Affidavit of Probable

Cause dated March 23, 2006." (citation omitted) Thus, the suppression court determined that the independent

source doctrine was satisfied.

Upon trial, Appellant was convicted of the charged offenses. An appeal ensued, in which the Superior Court

affirmed in a memorandum opinion. In its analysis, the intermediate court relied on Commonwealth v. Smith

(citation omitted) in which another panel previously accepted, for purposes of the independent source rule, that

there may be some degree of overlap between the "independent" police investigation and a prior, tainted one.

(citation omitted) The court relied on Detective Evans' development of additional evidence with an “independent

origin" as establishing that his affidavit was “free of the taint of the first search warrant." (citation omitted)

We allowed a further discretionary appeal to consider whether the independent source doctrine validates a serial

search warrant obtained from a second investigation conducted by a police officer from the same department.

(citation omitted) The specific probable-cause determinations relative to the two warrants are not presently at

issue; here, we accept that -- although Detective Johnson's affidavit was inadequate -- the affidavit of Detective

Evans was sufficient to establish probable cause. (footnote omitted)

Presently, Appellant maintains that the independent source doctrine cannot pertain, because the suppression

record does not establish that Detective Evans' investigation was “truly independent" of Detective Johnson's. To

the contrary, Appellant and his amici, the Pennsylvania Association of Criminal Defense Lawyers and the

American Civil Liberties Union of Pennsylvania, regard the former as "wholly dependent" on the latter. (citation

omitted) In this respect, Appellant stresses that the detectives were members of the same . . . unit; they conferred

about the case; Detective Evans worked from the preexisting case file; and a substantial portion of Detective

Evans' affidavit overlaps with Detective Johnson's. (citation omitted) ("A truly independent investigation does

not occur when officers from the same police department as the officer who illegally secured the evidence in

question secure a new warrant by reviewing the illegal warrant and the reports of the first officer and add a few

new facts to the new warrant.”).

Appellant also questions the suppression court's finding of the absence of any link between the incriminating

DNA test results from the initial blood sample and the second government investigation, given that the

prosecution was in possession of the highly incriminatory results at the time such inquiry commenced. Relatedly,

72

he raises fairness concerns associated with the use of the independent source doctrine to sanction serial police

investigations motivated by challenges to incriminating evidence obtained pursuant to facially deficient first

warrants. To address such concerns, Appellant favors a rule dictating that a second investigation motivated by

flaws in a preceding one cannot serve as an independent source, as well as a rebuttable presumption of such

motivation arising from spin-off investigations ensuing upon the filing of suppression motions.

***

Finally, Appellant regards the police conduct [sic] this case as most troublesome given the element of

intrusiveness into the human body. (citation omitted) (explaining that, "although privacy may relate both to

property and to one's person, an invasion of one's person is, in the usual case, [a] more severe intrusion on one's

privacy interest than an invasion of one's property" ). According to Appellant:

What is at stake if the lower court's opinion is permitted to stand is an absolute abrogation of a

citizen's expectation of privacy in his or her own person. Officers of this Commonwealth would

be free to repeatedly extract blood from citizens, even though a prior search was found

unconstitutional, correcting perceived defects in search warrants until a Constitutional level of

probable cause has been demonstrated.

(citation omitted)

The Commonwealth, for its part, does not contend that Detective Evans' investigation meets the Melendez

requirement of “true independence." Rather, it advocates the application of a less exacting standard to

circumstances that do not involve a knowing circumvention of a suspect's constitutional rights through intentional

police misconduct. (footnote omitted) The Commonwealth explains that this is, at least in substance, the

approach taken by the Superior Court in a series of decisions involving illegal acquisitions of blood-related

evidence[.] Commonwealth v. Ruey. (additional citations omitted) According to the Commonwealth, the

appropriate standard in the absence of egregious police misconduct is the two-part inquiry set forth in Murray,

namely, whether the decision to seek a warrant was prompted by something attained as a result of unlawful

government conduct, and whether the approving magistrate had been informed of the improperly obtained

information. (citation omitted) While therefore refraining from use of the “truly independent" rubric, the

Commonwealth regards Detective Evans' investigation as " sufficiently removed" from that of Detective Johnson

to alleviate any taint. (citation omitted) The Commonwealth concludes:

[B]ecause the record in the instant matter establishes that there was sufficient probable cause

beyond the appellant's DNA results upon which to seek a search warrant for appellant's blood,

because the request for the second warrant was clearly not prompted by those results, because the

magistrate did not issue the warrant based on those results, and because there was no police

misconduct involved here, . . . the DNA results obtained from a draw of the appellant's blood were

admissible under the independent source doctrine in conformity with Article 1, Section [8] of the

Pennsylvania Constitution.

(citation omitted)

We begin with the acknowledgement that, from an original-intent frame of reference relative to Melendez, the

independent-investigative-team requirement appears to have been intended to extend to the broader category of

unlawful searches and seizures, and the requirement of true independence was to have meant just that. The

architect of the rule made this plain enough in his dissent in the recent, divided Ruey decision. (citation omitted)

. . .

The sincere intentions underlying the innovation are clear enough. As amply related by Appellant and his amici,

there was a heartfelt desire to vindicate the privacy interests of Pennsylvania citizens against unlawful government

73

conduct. While there is a difference between egregious police misconduct and lesser infractions, such as

carelessness, incompleteness, and/or oversight, the ideals underlying the independent approach to Article I,

Section 8 jurisprudence -- that privacy is to be guarded jealously against unlawful government intrusions and the

probable-cause requirement is not to be diluted -- extend to the wider range of incursions.

Since, however, the independent source doctrine lies outside the terms of the Pennsylvania Constitution, the

embellishments of Mason and Melendez represented a form of prophylactic judicial lawmaking, as was candidly

acknowledged in Mason in the following terms:

It is axiomatic, of course, that once a judicially created rule is promulgated, the common law

system requires that appellate courts consider this rule in its various factual guises and expand or

contract the rule as justice requires.

(citation omitted) This has, of course, left the courts free in subsequent cases to consider whether the broader

pronouncements made there are as sensibly applied elsewhere, as new fact patterns are presented diverging from

those before the Court in Mason and Melendez.

***

A . . . weakening of the Melendez requirement of true independence can be seen in the present case. No one could

seriously contend that Detective Johnson's and Evans' investigations were "truly independent" under a

conventional understanding of those words, where the two conferred about the case and the latter worked directly

from the case file previously maintained by the former. . . . Indeed, to its credit, the Commonwealth does not so

argue. Nevertheless, in the present case, the suppression court, believing Melendez applicable, implicitly diluted

the true independence requirement by deeming it satisfied in spite of a collaborative transfer of a case file.

The greatest difficulty in the enforcement of a prophylactic rule intended to guard individual liberties is on account

of the competing value in society's interest in identifying and punishing wrongdoers. Among other ways, this is

manifested in the context of the independent source rule in the courts' reluctance to put police in a worse position

than they were in prior to an irregularity. (citation omitted) Furthermore, this tension between privacy and

criminal justice enforcement has led to cost-benefit balancing in the search-and-seizure arena. (citation omitted)

(explaining, for purposes of Fourth Amendment law, that "the marginal or nonexistent benefits produced by

suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant

cannot justify the substantial costs of exclusion"). While the execution of this approach has had strong detractors,

(citation omitted), experience shows this type of assessment will occur in the courts despite the best efforts of

those jurists who may oppose it, and it is our considered position that it is better that it be done in the open rather

than occurring as unstated subtext.

In the present circumstances, we are unwilling to enforce a “true independence" rule in the absence of police

misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence

connecting Appellant with his crimes. In answer to the specific question presented, we hold that suppression is

not required on account of Detective Evans' status as a member of the same police department as Detective

Johnson. Rather, in light of the factual circumstances before the Court in both Melendez and Mason, we deem it

appropriate to limit the independent police team requirement to situations in which the rule prevents police from

exploiting the fruits of their own willful misconduct. (footnote omitted) Where such malfeasance is not present,

we agree with the Superior Court that the Murray standard, [whether the decision to seek a warrant was prompted

by something attained as a result of unlawful government conduct, and whether the approving magistrate had

been informed of the improperly obtained information], strikes the appropriate balance between privacy and law

enforcement. (citation omitted) Ultimately, we believe the “twin aims" of Article I, Section 8 -- namely, the

safeguarding of privacy and enforcement of the probable-cause requirement -- may be vindicated best, and most

stably, by taking a more conservative approach to the departure this Court has taken from the established Fourth

74

Amendment jurisprudence.

Finally, we acknowledge the intrusiveness involved in the performance of a second blood draw occasioned by a

defective first warrant. We note only that the need for the serial sample is also an unintended consequence of a

previous departure from Fourth Amendment law, under which suppression would not have been required of

results of the first DNA test. See Leon, 468 U.S. at 926, 104 S.Ct. at 3422 ("In the absence of an allegation that

the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were

dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in

the existence of probable cause.”).

The order of the Superior Court is affirmed.

[Concurring Opinions Omitted]

75

Question No. PT: Examiner’s Analysis

The applicant is assigned to draft a legal memorandum to the assigning Assistant District Attorney providing a

legal analysis of two issues. The first issue is whether medical evidence obtained by a search warrant will be

suppressed as a result of the connection with a prior search that is assumed to be invalid. The second issue asks

whether the District Attorney’s office will be able to successfully prosecute the defendant for recklessly

endangering another person (“REAP”), under the known facts, and considering the anticipated defense of

“mistake.”

Formatting 1 Point

Following directions concerning formatting is an important skill of every lawyer. The applicant is expected to

follow the directions provided concerning the format of the legal memorandum.

Likelihood that Medical Evidence will be Suppressed 8 Points

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. Const. art. 1, § 8.

Generally, a search or seizure is not reasonable unless it is conducted pursuant to a search warrant issued by a

magistrate upon a showing of probable cause. Commonwealth v. Henderson.

The first search warrant, which applicants are instructed will be found to be invalid, lead to the discovery of the

printout of the electronic data on the pacemaker and so the issue is whether the second search warrant issued

upon application of Officer Anderson was valid to allow the collection of the electronic records created and

stored on the defendant’s pacemaker.

Under the independent source doctrine, evidence tainted by illegal police conduct (such as unlawful seizure)

nevertheless may be admitted into evidence if the evidence can be fairly regarded as having an origin

independent of the unlawful conduct. Commonwealth v. Henderson.

If the prosecution can demonstrate that the [challenged] evidence was procured from an independent origin — a

means other than the tainted sources — the evidence will be admissible. Commonwealth v. Henderson.

The independent source is to be truly independent from both the tainted evidence and the police or investigative

team which engaged in the misconduct by which the tainted evidence was discovered. Commonwealth v.

Henderson.

Here, the evidence sought is the electronic data on the pacemaker that will show defendant’s heart rate was

incompatible with a heart rhythm of a person claiming to have been sleeping peacefully. This evidence is

nearly identical in nature to the printout of the electronic data from the same pacemaker, concerning the same

time. Under the unmodified independent source doctrine, the electronic data will not have been obtained from a

source independent of both the tainted evidence and the police or investigative team which engaged in the

76

misconduct by which the tainted evidence was discovered. This is so because Officer Colandro learned of the

pacemaker and took the strip of paper containing the medical data pursuant to the presumed invalid search

warrant. Officer Anderson knew about the evidence because of that search warrant and, thus, the electronic

pacemaker evidence sought in the second affidavit of probable cause is not from a source independent of the

tainted evidence. Further, Officer Anderson is part of the same police team as Officer Colandro, the officer

who engaged in the unlawful search. Thus, this electronic data while seized as a result of the thorough

investigation conducted by Officer Anderson that more closely links defendant to the crime would not be

admissible under the unmodified independent source doctrine.

The court modified the independent source rule in Henderson stating, for purposes of the independent source

rule, where there is no evidence of police misconduct, there may be some degree of overlap between the

"independent" police investigation and a prior, tainted one. Commonwealth v. Henderson.

Here, there is some overlap between the investigations. In fact, Officer Anderson’s affidavit of probable cause

contains some paragraphs identical to those contained in Officer Colandro’s affidavit. However, Officer

Anderson’s investigation was much more thorough, and turned up concrete evidence missing in the first

Affidavit done by Officer Colandro.

The Pennsylvania Supreme Court is unwilling to enforce a "true independence" rule in the absence of police

misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence

connecting Appellant with his crimes. Commonwealth v. Henderson.

The Pennsylvania Supreme Court will limit the independent police team requirement to situations in which the

rule prevents police from exploiting the fruits of their own willful misconduct. Commonwealth v. Henderson.

Where there is no police malfeasance, the court indicated the Murray standard applies, i.e. whether the decision

to seek a warrant was prompted by something attained as a result of unlawful government conduct, and whether

the approving magistrate had been informed of the improperly obtained information. Commonwealth v.

Henderson.

Also of note is the fact that the method for obtaining the evidence from the pacemaker – eg, using a special

electronic device held near the suspect’s chest – is less intrusive than the drawing of blood allowed in the

Henderson case.

No police misconduct has been alleged, however, the analysis does not end here and the problem must be

analyzed under the Murray standard. Under the first prong of the Murray standard, the decision to seek the

second warrant was prompted by Officer Colandro’s collecting of the strip of paper from the pacemaker that

was attained as a result of the invalid search warrant. This means that arguably the decision to obtain the

second warrant to procure the pacemaker electronic data was prompted by unlawful government conduct.

Moreover, Officer Anderson included the fact that there was a prior search warrant in his affidavit requesting a

second search warrant and that information was presented to the approving magistrate. Accordingly, it is likely

that the electronic data collected from the pacemaker as a result of the second search warrant would be

suppressed.

Further, the magistrate was informed of the first search warrant in the second affidavit of probable cause. Even

though he was not informed of what information was sought by the first search warrant, the description in the

77

affidavit could lead to the conclusion that the paper strip showing the pacemaker data was the information

obtained pursuant to the invalid first search warrant. Thus, the pacemaker evidence may be precluded by the

second prong of the Murray standard.

Applicants should conclude that the evidence obtained via the second search warrant will not be allowed at trial.

Likelihood of Mr. Presley Being Convicted of Recklessly Endangering Another Person 11 Points

Under the Crimes Code, a person commits a misdemeanor of the second degree if he recklessly engages in

conduct which places or may place another person in danger of death or serious bodily injury. 18 Pa.C.S. §

2705; Commonwealth v. Scott.

A person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently, as the

law may require, with respect to each material element of the offense. 18 Pa.C.S. §302

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. The risk must

be of such a nature and degree that, considering the nature and intent of the actor's conduct and the

circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a

reasonable person would observe in the actor's situation. 18 Pa.C.S. §302

Here, Mr. Presley engaged in conduct which placed the street performer in danger of death or serious bodily

injury, as he swung a tire iron at the victim’s leg, striking the victim. When a person swings a tire iron at a

person it is likely that he will cause serious bodily injury. Here Mr. Presley did cause serious bodily injury to

the victim, i.e. the street performer. Affidavits. As a result of Presley’s action of striking the street performer,

the street performer’s leg was broken, (affidavits) thus establishing the fact that Presley’s actions placed the

street performer in danger of serious bodily injury.

However, the crime of REAP also includes the element requiring the conduct to be “reckless.” Commonwealth

v. Scott. A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that

serious bodily injury will result from his conduct, here swinging the tire iron at a person. In this case, it could

be argued that Mr. Presley’s action of striking the street performer did not violate the REAP statute as he did

not act recklessly when he did not know that he was placing another person in danger of death or serious bodily

injury as he thought the street performer was a statue. See memorandum and affidavits. Thus, Mr. Presley did

not consciously disregard the risk of causing harm to an individual.

In discussing the elements of REAP, applicants should conclude either that Mr. Presley was reckless (he

intended to swing a tire iron to cause harm to the street performer; and his actions clearly are a gross deviation

from the standard of conduct that a reasonable person would observe) or was not reckless (causing serious

bodily harm or death is not a substantial and unjustifiable risk of swinging a tire iron at a “statue”).

In addition, Mr. Presley will argue the affirmative defense of mistake, as he claims to have thought the victim

was a statue and not a person; and as a result, he should be excused from guilt for the crime of REAP against

the victim.

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It is well established that a bona fide, reasonable mistake of fact may, under certain circumstances, negate the

element of criminal intent. Commonwealth v. Scott.

Pennsylvania’s Mistake statute provides: 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. 18 Pa.C.S. §

304; Commonwealth v. Scott.

REAP encompasses a mens rea of recklessness, which can be negated by a mistake-of-fact defense.

Commonwealth v. Scott.

It is not necessary that the facts be as the actor believed them to be; it is only necessary that he have “a bona

fide and reasonable belief in the existence of facts which, if they did exist, would render an act innocent.”

Commonwealth v. Scott.

When evidence of a mistake of fact is introduced, the Commonwealth retains the burden of proving the

necessary criminal intent beyond a reasonable doubt. Commonwealth v. Scott.

In other words, the Commonwealth must prove either the absence of a bona fide, reasonable mistake, or that the

mistake alleged would not have negated the intent necessary to prove the crime charged. Commonwealth v.

Scott.

Here, mistake is likely a valid defense for Mr. Presley because:

(1) The mistake as to the fact must have a “reasonable explanation or excuse.” 18 Pa.C.S. §304;

Commonwealth v. Scott. Mr. Presley could reasonably have believed that the victim was a real statue. Tourists

were near the victim, taking pictures of the victim as if he was the real statue. (affidavits) The affidavits of

probable cause indicate that the victim was a nearly identical replica of the real statue. Further, the statue once

stood where the victim was standing. While hitting a statue may have been grounds for some other crime, it

may be reasonable that Mr. Presley believed the victim was really a statue.

(2) It isn’t necessary for the facts to be as Mr. Presley thought they were. 18 Pa.C.S. §304;

Commonwealth v. Scott. If the victim had been an actual statue, not a person, as Mr. Presley claims to have

believed, then the crime of REAP would not exist. Mr. Presley asserts that he thought the victim was really a

statue; he also posted on his website that he would destroy the statue if it was ever placed at the top of the

stairway again; the affidavits of probable cause say the victim looks just like the statue; and tourists were near

the “statue” taking pictures. After the “statue” dropped to the ground after being struck by Presley, Presley

paused, backed up, and threw the tire iron into the trees next to the stairway. Affidavits. This indicates that

Presley was surprised by the reaction of the “statue” and so actually believed the performer was the statute.

These facts lend themselves to Mr. Presley having a bona fide and reasonable belief that the victim was a statue,

not a person.

The prosecutor in this case will have to prove the absence of a bona fide, reasonable mistake. In order to do so,

the prosecutor could argue that it was not a reasonable mistake for Presley to believe that the street performer

was a statute. Mr. Presley was a strong supporter of the effort to remove the statue from the top of the stairway

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to its current bottom location and the real statue was 20 feet from the car and in Mr. Presley’s plain view before

he ran up the stairway with the tire iron. Therefore, a jury could conclude that Mr. Presley was aware that the

statue was not moved before he hit the street performer and so he would be guilty of REAP.

Given the prosecution’s burden, applicants should conclude the prosecution would not likely be able to

successfully prosecute Mr. Presley for violation of the REAP statute.

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