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Supreme Court of Pennsylvania Board of Law Examiners

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Pennsylvania Bar Examination July 25 and 26, 2006 ____________________

Essay Examination – PM Session

July 25, 2006 ____________________

Question numbers 3 thru 6, inclusive

____________________ Use BLUE covered book for your answer to Question No. 3. Use TAN covered book for your answer to Question No. 4. Use GREEN covered book for your answer to Question No. 5. Use PINK covered book for your answer to Question No. 6. © 2006 Pennsylvania Board of Law Examiners

PLACE BAR CODED APPLICANT LABEL HERE

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In April of 2017 Mike purchased a Rocket 6, a 20-speed-racing bicycle, for $8,000. A

couple of months later, Mike met Sally and they married in July of 2019 in C County,

Pennsylvania, where the couple has continuously resided. A week after the marriage, Mike sold

his Rocket 6 for $5,000 and purchased a new Speedster X 20-speed-racing bicycle for $5,000.

Two weeks after he purchased the Speedster X, Mike’s mother gave him a new custom-

manufactured Dome bike helmet valued at $950 for his birthday.

In September of 2019, Mike decided he wanted to enter a 160-mile bike ride that was

being held in New Jersey. Mike asked his neighbor, Scott, if he had a bike rack he could borrow

to transport his bike to the New Jersey event. Scott responded: “This is your lucky day. I just

stole a bike rack off a car three weeks ago, and I decided I don’t want it. You can have it.” Mike

thanked Scott, took the rack, and used it to transport his bike to the New Jersey event.

A couple of days after returning from the New Jersey bike ride, Mike was feeling guilty

about keeping the bike rack. He decided to get rid of the bike rack by placing it at the curb with

his weekly garbage the night before the scheduled municipal pickup. The bike rack and garbage

were placed in a public area owned by the municipality. The next morning, before the garbage

truck arrived, Officer Lee saw the bike rack in front of Mike’s home beside Mike’s garbage cans.

The bike rack fit the description of one that had been reported stolen several weeks earlier.

Officer Lee immediately took the bike rack to the police station.

Based on further investigation, Officer Lee determined that the bike rack in front of

Mike’s house was stolen by Scott. Officer Lee subsequently conducted a proper interview of

Scott wherein Scott admitted he took the bike rack. Scott further informed Officer Lee that he

gave the bike rack to Mike and told Mike that he had stolen it. Officer Lee also lawfully spoke

with Mike who stated he placed the bike rack in front of his home to get rid of it.

Based upon Officer Lee’s investigation, Mike was charged with receiving stolen

property. At Mike’s preliminary hearing, where Mike was present and represented by counsel,

Scott testified that he told Mike that the rack was stolen when he gave it to him. Mike’s attorney

opted not to cross-examine Scott, although he had the opportunity to do so. At the conclusion of

the preliminary hearing, the court found that the Commonwealth had submitted sufficient

evidence to forward the receiving stolen property charge to trial. A stenographer was present at

the hearing and later produced a verbatim transcript of the hearing that she provided to the

district attorney (DA) and Mike’s attorney.

After the preliminary hearing, Scott was tragically killed in a boating accident. A week

later, Sally filed for divorce from Mike in the C County Court of Common Pleas.

1. For this question only assume the above facts are all admissible. Do the facts

support a charge of receiving stolen property against Mike?

2. Mike’s attorney files a proper pre-trial motion requesting the suppression of the

bike rack as evidence based on Mike’s right to be free from unreasonable search

and seizure under the United States and Pennsylvania Constitutions. Excluding

the plain view doctrine, how would the court likely rule?

3. At Mike’s trial on the charge of receiving stolen property, the DA attempts to

have an officer read Scott’s preliminary hearing testimony to demonstrate that

Scott had informed Mike that the bike rack was stolen and the defense objects to

the introduction of this evidence by asserting that it is hearsay. How should the

DA respond to the hearsay objection and how will the court likely rule?

4. Neither the Speedster X 20-speed-racing bicycle nor the helmet changed in value

from the date of the marriage through the divorce proceedings between Sally and

Mike. What portion, if any, of the value of the Speedster X 20-speed-racing

bicycle and helmet would be considered marital property for purposes of

equitable distribution?

By statute, State A allows an individual to be involuntarily committed to a psychiatric

hospital if (1) State A establishes that an individual is dangerous or (2) a court finds a criminal

defendant mentally incompetent to stand trial. (MH Law) The MH Law does not require an

immediate review of the continuation of an involuntary commitment if State A drops criminal

charges against an individual committed solely on the basis of incompetence to stand trial.

However, the MH Law does require a review of all involuntary commitments every 6 months (6-

Month Review).

In 2017, State A charged Kate with theft and remanded her to county jail to await trial

because she could not post bail. While incarcerated, Kate became so depressed that she could

not eat, sleep, bathe, or speak. After finding Kate incompetent to stand trial, a court ordered her

involuntary commitment to a state-owned psychiatric facility (Hospital). No evidence was

presented that Kate was dangerous. Two weeks after her involuntary commitment, State A

dropped the criminal charges against Kate, but Kate spent another 5 months in the Hospital until

she was released following a 6-Month Review where State A never argued she was dangerous.

In November 2018, Kate got a job at Big Corp (Corp), a company with 5,000 employees.

Kate’s education and experience met all of the job criteria. When she accepted the job, Kate told

her supervisor that she has major depressive disorder (MDD), which she manages with

medication and therapy. Without treatment, Kate struggles daily to eat, sleep, bathe, and

communicate because of MDD but, with treatment, MDD does not affect Kate’s daily life.

Kate learned her job quickly, received positive feedback from customers, and completed

all assignments satisfactorily. At the end of a 3-month probationary period, however, Kate’s

supervisor, who has complete control over the terms of Kate’s employment, told Kate that Corp

was not offering her a permanent position because Corp found someone “who is more energetic

and better equipped to handle the stress.” Kate’s supervisor showed her the following comments

that he had put in her personnel file: “11/28 – left ‘sick,’ but Kate seems anxious and

overwhelmed; 12/18 – 45 min. late because of “car trouble,” but probably couldn’t get out of

bed; 12/29 – complained a co-worker yelled at her . . . Kate’s probably being irrational.”

Another probationary employee who does not have any mental or physical health problems was

offered a permanent position.

Kate has sued State A under the United States Constitution. Kate has also sued Corp for

allegedly violating the Americans with Disabilities Act (ADA) by failing to offer her a

permanent job. Both lawsuits were timely filed in an appropriate federal court against proper

parties and all procedural, jurisdictional, and administrative prerequisites are satisfied.

While investigating Kate’s ADA claim, her attorney (JD) took extensive notes (Notes) on

an interview of Bob, Kate’s former co-worker at Corp. The next day, Bob moved to a remote

part of South America, and it would take significant time and expense to locate and contact him.

Bob is the only Corp employee who worked with Kate the day she left sick and was the only

person who saw the dispute with the co-worker that she complained about on December 29. The

Notes include Bob’s description of these events. The Notes also include JD’s thoughts and

opinions about Bob’s credibility and how Bob’s observations affect Kate’s ADA claim. The

Notes do not have any information provided by Kate to JD.

1. If Kate brings a federal procedural due process claim against the appropriate State

A official based on her continued involuntary commitment for 5 months after

State A dropped the theft charge, how will the court analyze her claim and with

what likelihood of success?

2. Will Kate be able to establish a prima facie case of discrimination under the

ADA?

3. During discovery in the ADA case, Corp requests that JD produce the Notes.

What grounds should JD raise to object to disclosure of the Notes, and how will

the court likely rule?

Bill provides support services to companies making movies and television shows in Big City,

Pennsylvania. Bill and Allied Studios (“Allied”) entered into negotiations for a contract under which Bill

would provide skilled workers for a movie that Allied was about to start filming in Big City. The

negotiations included (i) whether Bill’s overhead charge of $2,500/day for providing workers to Allied

would be paid through a state movie incentive program and (ii) the wage rates to be paid for the workers.

Bill and Allied finally agreed that Allied would pay Bill’s $2,500 daily overhead charge and that Allied

would pay workers based upon calendar year 2019 wage rates. Bill and Allied then signed a detailed

written “Services Contract” that stated in part, “This writing is intended as the final, complete, and exclusive

expression of the terms of our agreement. All prior agreements and understandings are merged herein.”

Bill, a widower, lived alone in a large Big City house known as Blackacre. Bill had one child, a

daughter named Ann. Bill and Ann had been estranged for many years despite Bill’s frequent but

unsuccessful attempts to reestablish communications. Wishing to downsize, Bill bought a unit in a

condominium building in the heart of downtown Big City within a short walking distance of restaurants and

shops. He then validly sold Blackacre to Chuck. Bill’s deed stated, “I grant and convey Blackacre to Chuck

and GENERALLY warrant the property conveyed.”

Ann owned a country house known as Greenacre in nearby Rustic, Pennsylvania. Tired of rural life,

Ann purchased a unit in the same building in Big City as her father not knowing that Bill lived there. Ann

then entered into a valid written sales agreement to sell Greenacre to Tom for $200,000. The sales

agreement provided for a $20,000 cash deposit at the time of the signing with the balance to be paid at the

time of closing. The sales agreement did not contain a provision regarding loss in the event of any casualty.

One week before the scheduled closing, torrential rainstorms caused landslides and flooding that destroyed

the house on Greenacre.

Bill saw Ann in the lobby of their condominium building. Bill stated, “Ann, I promise to buy you a

Cartier watch if you’ll have lunch with me next Thursday at Mortie’s, which is only 25 feet from this

building’s entrance, and just talk with me.” Ann met Bill for lunch as scheduled. After their lunch, Ann

and Bill got into an argument, and Bill angrily left the restaurant and never purchased the watch.

1. When Tom refused to go forward with the purchase of Greenacre, Ann filed suit seeking the

balance of the purchase price. Applying the common law of property, will Ann’s suit be

successful?

2. Ann demanded that Bill fulfill his promise to buy her the Cartier watch. Bill refused Ann’s

demand, saying, “You did nothing to deserve that watch. It was just a short walk and a

lunch!” Without discussing promissory estoppel, any equity-based legal doctrines, or the

Statute of Frauds, was an enforceable contract created between Bill and Ann?

3. Chuck received a notice from Big City of the existence of an unpaid but valid lien totaling

$10,000 filed against Blackacre for sewer and water line improvements made prior to Bill’s

ownership of the property. Chuck paid $10,000 to satisfy the lien.

(a) Based solely on the language in the deed, will Chuck be successful in recovering the

cost to satisfy the lien from Bill?

(b) For this part only, assume that Bill’s deed stated, “Bill SPECIALLY warrants the

property conveyed.” Based solely on this language, will Chuck be successful in recovering

the cost to satisfy the lien from Bill?

4. When Allied failed to pay Bill for his services, Bill sued Allied for breach of the Services

Contract.

(a) At trial, Allied attempted to introduce evidence that the parties orally agreed just prior

to the signing of the Services Contract that Bill’s overhead charge would be paid by the state

incentive program. How should the court rule on an objection to the introduction of this

evidence made by Bill based upon the parol evidence rule?

(b) For this part only, assume that the written Services Contract contained an error

missed by both parties and incorrectly stated that Allied would pay workers based upon the

“2020” instead of “2019” calendar wage rates. Because the 2020 wage rates are much higher

than the 2019 rates, Allied wants to introduce evidence of this error. Bill also objected to the

introduction of this evidence based upon the parol evidence rule. How should the court rule

on the objection?

Pearl, a resident of C County, Pennsylvania, earned her living as the spokesperson and

“face” of the Perfect Coif line of hair care products. Pearl has very dark hair and tended to have

stray hairs along her chin and upper lip (stray hairs) that had to be removed to enhance her

appearance for Perfect Coif photo shoots. Plucking the hairs periodically was painful and time-

consuming, so Pearl decided to try a new home electrolysis product, the D-Laser, designed for

this purpose and recently manufactured and introduced to the market by D-Lovely Beauty

Products, Inc. (D-Lovely), a C County manufacturer. The D-Laser uses a targeted, narrowly

focused laser beam to destroy hair follicles. The darker one’s hair, the more effective the D-

Laser is.

Pearl purchased a new D-Laser for $100 from the D-Lovely website. The D-Laser was

delivered to Pearl in as-designed condition. The product package included a special pair of

shaded glasses that the consumer was instructed to wear while using the D-Laser in order to

avoid any eye injury from possible misdirection of the laser beam. The package, however, did

not include a shield for areas where hair removal was not desired. A hair shield would have cost

$1 per D-Laser. The instructions on the package also did not suggest shielding nearby hair

growth when using the D-Laser on the face to prevent inadvertent hair loss in case of

misdirection or dispersion of the laser beam.

After carefully reading all instructions and other information provided, Pearl used the D-

Laser repeatedly. As she always does, she strictly adhered to the instructions. The D-Laser was

gradually effective in permanently removing the stray hairs. However, Pearl began to notice

thinning of the normal hair growth on her hairline near the targeted areas. She promptly stopped

using the D-Laser, but the thinning proved to be permanent. As a result, Pearl lost her contract

as the Perfect Coif spokesperson.

Pearl believes her permanent, unwanted hair thinning is the result of dispersion of the

laser beam from her use of the D-Laser to remove stray hairs. She has brought a timely civil

action against D-Lovely in the C County, Pennsylvania Court of Common Pleas.

1. Under Pennsylvania law, excluding intentional torts and negligence, what tort

theories should Pearl assert against D-Lovely based on her belief that its D-Laser

caused her unintended hair loss?

2. For this question only, assume D-Lovely contracted with another C County

corporation, Dandy Distributions, Inc. (Dandy), to package and ship its D-Laser

to wholesalers and retailers. D-Lovely alleges it provided printed instructions for

use of the D-Laser, to be inserted inside the product packages. D-Lovely alleges

the separate instructions contained additional, more detailed information than the

package itself and provided additional guidance that would have allowed Pearl to

avoid unintended hair loss. However, Dandy failed to include the instructions in

the D-Laser packaging.

As part of the same action as Pearl’s claim, D-Lovely wants to assert a tort claim

against Dandy for failing to include the instructions inside the D-Laser packages

as D-Lovely required. Under the Pennsylvania Rules of Civil Procedure, what

procedural steps, if any, may D-Lovely take to assert its tort claim against Dandy

in the same lawsuit as Pearl’s claim?

3. For this question only, assume that D-Lovely denies that its D-Laser causes

unintended hair loss. However, in response to discovery requests from Pearl, D-

Lovely produces records from the D-Laser’s research and development phase,

which include anecdotal reports of unintended hair loss experienced by test

subjects during product testing. The reports were prepared by Witt Winters, a

product development employee at D-Lovely. As part of his job, Winters routinely

observes test subjects and prepares reports concerning his observations during the

product tests. He maintains all such records in his office at D-Lovely.

Pearl would like to introduce the Winters records into evidence at trial to show

that some test subjects experienced unwanted hair loss during the D-Laser product

trials. She plans to subpoena Winters to testify concerning the records. Under the

Pennsylvania Rules of Evidence, if D-Lovely objects that the records are hearsay,

what will Pearl need to establish in order to overcome the hearsay objection?

INSTRUCTIONS

Handwriting Applicants

Four answer books (BLUE, TAN, GREEN and PINK covers) are supplied for your use. Use

the appropriate numbered and colored book in answering each question.

You must be sure to use answer books as designated above when answering each question.

Answer only one question in the appropriate book. Place your bar coded applicant label on the

cover page of each answer book in the space provided. Start writing your answer on the colored

cover page.

Computer Based Testing Applicants

Type your answer to each question on the correct screen. You may answer the questions in any

order, but be sure that you type each answer on the screen labeled appropriately for the question

you are addressing. Use the blue arrows at the top of the screen to go back and forth between

your answers.

____________________

All Applicants

Each answer should show: an understanding and analysis of the facts; recognition of the

issue(s) involved; a knowledge and understanding of the applicable principle(s) of law; and, the

reasoning by which you arrive at your conclusion(s). The value of an answer depends not so

much upon the correctness of the conclusion(s) as upon the presence and quality of the elements

set forth above.

Your answer should include a thorough explanation or discussion that evidences your ability to

apply the law to the facts presented and to reason in a logical manner in arriving at your

conclusion(s).

Be clear and concise in your answer, but make your answer complete. State fully all of the

reasons that support your conclusion(s) and discuss all points thoroughly. Do not volunteer

information that is irrelevant or immaterial.

Where Pennsylvania law is applicable and is distinguishable, it should be noted in your answer.

Demonstrate not merely your memory, but your ability to think.