The Legal Intelligencer Blog

Preliminary Hearing Set for Ex-PSU Administrators

By Ben Present
Of the Legal Staff

Three former Penn State administrators will finally appear in court as prosecutors look to advance charges that they covered up accusations against convicted serial child molester Jerry Sandusky more than a decade ago.

Magisterial District Judge William C. Wenner signed orders Tuesday setting a joint preliminary hearing for the ex-officials on July 29 in Harrisburg. Prosecutors will aim to hold for trial the cases of former Penn State President Graham Spanier, former athletic director Tim Curley and former vice president for business and finance Gary Schultz.

The hearing would mark Spanier’s first court appearance since he was charged last November.

The court hearing, though, comes more than a year-and-a-half after Schultz and Curley were first charged. The three men face several charges, including felonies, that they failed to report to authorities an eyewitness account that Sandusky molested a boy in a Penn State shower and then lied to a grand jury about it.

That eyewitness account mentioned in the charging documents came from former Penn State graduate assistant and assistant football coach Mike McQueary.

McQueary testified in December 2011 that, in 2001, he told Schultz, Curley and former head coach Joe Paterno that he saw something sexual in nature going on between Sandusky and a boy who looked like a 10-year-old. The testimony came at Schultz and Curley’s first preliminary hearing, before Spanier was charged in the scandal and before additional charges were brought against Schultz and Curley.

A date for the hearing against all three men had faced long delays as the former officials argued that the presentments against them should be thrown because they thought former Penn State General Counsel Cynthia Baldwin represented them when they went before a grand jury.

Ben Present can be contacted at 215-557-2315 or [email protected]. Follow him on Twitter @BPresentTLI.

Justices Reject Murderer Lambert’s Appeal

By Ben Present
Of the Legal Staff

The state Supreme Court has declined to weigh in on the second Post-Conviction Relief Act petition of Lisa Michelle Lambert, seeming to close the convicted murderer’s decades-long series of appeals following her conviction.

The justices rejected Lambert’s petition for allowance of appeal without comment Monday.

Last year, the state Superior Court issued an opinion on Lambert’s second PCRA petition when a three-judge panel ruled that Lambert had failed to meet the "newly discovered evidence" exception to the PCRA's timeliness requirement. Instead of new evidence, Lambert had introduced a "newly willing source" to her decades-long allegations that her 1992 bench trial rendered her the victim of prosecutorial misconduct, according to the opinion.

More than two decades have passed since Lambert was first convicted of the 1991 murder of Lancaster teen Laurie Show, whom Lambert stalked and murdered because Lambert thought Show, then a 16-year-old high school sophomore, was romantically involved with Lambert's boyfriend, Lawrence Yunkin. Yunkin, whom Show had accused of raping her, and another woman, Tabitha F. Buck, were also convicted in Show's throat-slashing.

And at least one tribunal agreed with Lambert's story. That came in 1997, when U.S. District Judge Stewart Dalzell of the Eastern District of Pennsylvania declared Lambert "actually innocent," writing that police and prosecutors had stained Lambert's trial by destroying or tampering with evidence that Lambert insisted would have proved her innocence.

Among Lambert's claims was the allegation that police framed her to cover up an alleged gang-rape in which three East Lampeter Township police officers sexually assaulted Lambert just months before the murder took place.

But the U.S. Court of Appeals for the Third Circuit twice upheld Lambert's conviction and sharply criticized Dalzell's handling of Lambert's case. The Third Circuit said Dalzell failed to show appropriate deference to the findings of Pennsylvania state courts. Effectively, the appeals court ruled, Dalzell let Lambert retry her case.

The case history of Commonwealth v. Lambert includes a bench-trial conviction, a failed direct appeal in state court, a federal habeas petition, a 300-plus-page opinion from the trial judge on Lambert's PCRA try, another habeas petition in which Dalzell recused at the request of prosecutors, and the Third Circuit's subsequent dismissal of Lambert's second federal petition.

In her most recent legal saga, according to the Superior Court’s opinion last November, Lambert has alleged that she has a letter written by the now-deceased prosecutor who handled her trial in 1992 that bolsters her claims. According to Lambert, the opinion said, former Lancaster County prosecutor John A. Kenneff, who later became a defense attorney, wrote to a former client, Warren Raffensberger, admitting that the events leading up to Raffensberger's conviction were illegal and calling the justice system in that county "corrupt." Raffensberger’s case was unrelated to Lambert’s case.

In addition to that letter, Lambert also provided a four-page handwritten affidavit from Raffensberger in which he swears Kenneff confessed to tampering with evidence in the Lambert case when he was still in the prosecutor’s office.

Ben Present can be contacted at 215-557-2315 or [email protected]. Follow him on Twitter @BPresentTLI.

Superior Court Declines to Reconsider PSU Insurance Venue Dispute

By Ben Present
Of the Legal Staff

The state Superior Court has denied re-argument in the appeal of a venue decision it issued in litigation between Penn State and its insurer over the extent to which the university may claim coverage for claims made by accusers of Jerry Sandusky.

The case, between Penn State and Pennsylvania Manufacturers’ Association Insurance Co., has turned into a protracted venue dispute, which, if you count the Superior Court’s April 25 order, has seen five rulings against the university.

The result, it seems, is that the coverage issues will play out in the Philadelphia Court of Common Pleas.

Penn State and PMA have been in court since January of last year after the first civil suit naming the university was filed by an accuser of Sandusky, the former Penn State assistant football coach and convicted serial child molester at the center of the scandal.

The litigation is over PMA's responsibility to provide coverage for Penn State's court costs and damages related to that claim. PMA, one of the university's general liability carriers for decades, first filed suit in Philadelphia in January 2012 seeking to limit coverage; Penn State has twice filed cases in Centre County, alleging breach of contract and other claims. Both have been steered to the First Judicial District.

Most recently, a Philadelphia judge directed Penn State’s second lawsuit, which was filed after the Superior Court’s initial ruling, to Philadelphia. Though it is not an injunction, Philadelphia Court of Common Pleas Judge Gary S. Glazer’s April 11 order appears to be its functional equivalent.

In a footnote to his order, Glazer said: "If the parties file any additional coverage actions involving similar underlying claims against [Penn State], they shall file them in Philadelphia County.”

Glazer also denied a motion for sanctions filed by PMA, in which the insurer asked the court to force Penn State to pay its legal fees and costs in connection with legal work on the venue dispute after the Superior Court had already ruled in PMA's favor.

Ben Present can be contacted at 215-557-2315 or [email protected]. Follow him on Twitter @BPresentTLI.

AG Announces Charges Against Eight Involved in Turnpike Contract Scheme

By Ben Present
Of the Legal Staff

Pennsylvania Attorney General Kathleen Kane has announced charges against a former state Senate leader, the former commissioner of the Pennsylvania Turnpike and six others in what Kane called a “pay to play” scheme where vendors were given turnpike work in exchange for political contributions.

Among those charged are former Senate Minority Leader Robert J. Mellow, a Lackawanna County Democrat, who has already pleaded guilty to unrelated conspiracy charges, and Mitchell Rubin, the former commissioner of the turnpike.

Two other former Turnpike Commission executives and two former employees have also been charged, as well as a turnpike vendor and a vendor consultant.

According to a press release from Kane, a grand jury investigation turned up evidence of a scheme in which secret gifts of cash, travel and entertainment were exchanged and “substantial political contributions” were made to public officials and political groups. The scheme has cost Pennsylvanians millions of dollars of public money, Kane said.

"The grand jury found that these men were using the turnpike to line their pockets and to influence elections," said Kane. "That is stealing from the public, pure and simple."

Specifically, the release said, Mellow directed his chief of staff to secure turnpike contracts for big donors and supporters. He also told his chief of state to order people at the turnpike to provide political support and raise campaign funds on his behalf.

The Pennsylvania State Police and the Office of the Attorney General have been investigating the Turnpike Commission since 2009. The case has also sparked a separate case between the Turnpike Commission and the state over whether communications between representatives of a stage agency and its attorneys are privileged, which is currently pending before the state Supreme Court.

Mellow was sentenced to 16 months in state prison last November after pleading guilty to using his legislative staff for political work and tax fraud.

Following Kane’s announcement, the commission’s CEO, Mark P. Compton, released this statement:

“We understand how important it is to maintain the public’s trust. And certainly, we’re troubled by today’s news from Attorney General Kane’s office,” Compton said. “If charges against former turnpike employees are indeed proven, we certainly cannot — and will not — defend that. But I can say that these actions definitely don’t represent the hard-working men and women who keep our road open and safe for customers. In the time that I’ve been here, the turnpike that I have experienced first-hand is quite different than the one that I’ve heard about in media reports.”

Compton noted that, in the past two years, the Turnpike Commission has hired a chief compliance officer, adopted a more rigorous and transparent process for awarding professional-services contracts, and has made efforts toward hiring a “more diverse pool of contractors and service providers to bid on our projects.”

Ben Present can be contacted at 215-557-2315 or [email protected]. Follow him on Twitter @BPresentTLI.

NCAA Sues Corbett, Row Officers Over Penn State Fine Legislation

By Ben Present
Of the Legal Staff

The NCAA has filed a federal lawsuit against Governor Tom Corbett and the treasurer and auditor general of Pennsylvania over legislation aiming to keep the NCAA’s $60 million fine against Penn State, related to the Jerry Sandusky sex-abuse scandal, in the state of Pennsylvania.

In a 16-page complaint filed in U.S. District Court for the Middle District of Pennsylvania, the NCAA said the legislation, sponsored by state Senator Jake Corman, R-Centre, violated the takings, contracts and commerce clauses of the U.S. Constitution. The NCAA asked the court to declare Senate Bill 187 – which Corbett signed into law Wednesday – unconstitutional and for an injunction against its enforcement.

The NCAA also asked for attorney fees and costs and other relief the court deems fitting.

The lawsuit also names Mark R. Zimmer, the chairman of the Pennsylvania Commission on Crime and Delinquency, as a defendant.

Corman was not a named defendant.

Represented by Thomas W. Scott of Killian & Gephart in Harrisburg, the NCAA alleges the General Assembly has attempted to negate a valid contract between the NCAA and Penn State to “disrupt interstate commerce by attempting to legislate where private parties spend their money, and to confiscate funds intended for the victims of child sexual abuse nationwide to be used solely for the benefit of Pennsylvania residents, at the direction of Pennsylvania officials.”

Corman has already filed a lawsuit against the NCAA asking the Commonwealth Court of Pennsylvania to block the NCAA from releasing any of the fine money, which came as just part of the unprecedented sanctions the organization levied against Penn State for its handling of sex-abuse allegations against Sandusky, a former assistant football coach at the university who was last year convicted on 45 of 48 counts of sexually abusing children. Corman’s action against the NCAA is in the midst of briefing, according to the docket.

After Corman’s lawsuit, the NCAA preliminarily agreed not to dole out any of the $12 million Penn State has already put into a fund to pay the fine.

On top of the fine, the NCAA hit the university with a four-year ban on postseason play, a drop-off in scholarships and the vacating of seasons’ worth of victories for the university's storied football program.

The Senate bill, now Act 1 of 2013, requires that a higher education institution hit with a fine of more than $10 million from an outside body must establish an endowment that would ensure the funds are distributed in the state of Pennsylvania. In Penn State’s case, the money would go to Pennsylvania organizations that benefit child victims of sexual abuse.

Meanwhile, Corbett has challenged the entirety of the NCAA’s sanctions, including the fine, in a separate lawsuit against the NCAA, but the governor agreed publicly to use the money for victims of sex abuse if he and the state were to prevail.

 

McQueary Says There’s No Need to Respond Substantively to Penn State’s P.O.s

By Ben Present
Of the Legal Staff

Mike McQueary, who is suing Penn State for its handling of his allegations against convicted serial child molester Jerry Sandusky, has declined to comment substantively on the university’s preliminary objections to his lawsuit.

Penn State filed the objections to McQueary’s lawsuit last month, contesting the defamation and misrepresentation claims asserted by McQueary are not supported by Pennsylvania law while the entirety of his claims, including a whistleblower count, lacks specificity.

McQueary responded in the Centre County Court of Common Pleas with a filing docketed Friday, fighting back that Penn State did not aver any facts in its preliminary objections, but, rather, presented “interpretations or summaries” of the plaintiff’s facts.

And just in case there was an assertion of fact in the preliminary objections McQueary’s legal team may have missed, the plaintiff denied those, too. He asked the court for an “expeditious overruling” of the university’s objections and a briefing schedule for his case to proceed on.

When the university filed its objections, an attorney who specializes in employment-related claims said some of McQueary's claims were more viable than others, but that his complaint needed to be amended to be more specific.

McQueary, who was a graduate assistant when he claims he saw the school’s former defensive coordinator, Jerry Sandusky, sexually assault a young boy, is perhaps better known for his role as one of the state’s key witnesses in the prosecutions against Sandusky and three high-ranking administrators also facing charges than he is for his coaching experience at the school. He is suing the school for $4 million — his projected earnings over a 25-year career that was seemingly derailed by the scandal.

Sandusky was convicted of 45 of 48 counts of child sex abuse in June 2012 and is serving a minimum of 30 years in state prison.

A hearing on the preliminary objections has been scheduled for March 18.

McQueary has claimed in court filings that he lost his job with the university because he chose to come forward about Sandusky. He has also claimed that, by initially backing former athletic director Tim Curley and former vice president of business and finance Gary Schultz, Penn State and its former president, Graham Spanier, defamed him and painted him as a liar.

The university lodged preliminary objections last month taking a different position, arguing that McQueary did not allege per se defamation, nor did his October 2, 2012, complaint support a claim of defamation by innuendo.

“To arrive at an innuendo suggested by [McQueary] — i.e., that [McQueary] lied and committed perjury — a reader must take the statements concerning Curley and Schultz out of context and ascribe a meaning which contravenes the ordinary meaning and usage of the words set forth in the statements,” the university’s court filing said.

The statements at issue came from Spanier, who is also facing charges related to the reporting of Sandusky’s conduct, right after Schultz and Curley were first charged with failure to report child sex-abuse and perjury.

In his defamation claim, McQueary argued that two statements made by Spanier as the sex-abuse scandal was breaking in November 2011 “clearly suggest” McQueary was lying in his accounts regarding the now-notorious “shower incident.” In one of the statements, released on Penn State’s website, Spanier vowed his “unconditional support” to Schultz and Curley, to whom McQueary reported the allegations back in 2001.

At the time, Schultz and Curley told McQueary they would follow up on his allegations about Sandusky, alleged statements that are the linchpin of Count III of McQueary’s lawsuit. McQueary claimed in his complaint the administrators misrepresented their intentions to him in 2001 by telling him they would see to it that his allegations would be appropriately handled.

Instead, McQueary pled, the officials decided to “pursue a course of action that would avoid an investigation by any law enforcement investigator or other trained investigator.” In essence, the lawsuit alleged, the administrators buried McQueary’s report and the underlying incident to avoid tarnishing the school’s reputation.

Prosecutors, in a revised set of charges against Schultz, Curley and Spanier, allege the three men engaged in a “conspiracy of silence” to protect the school’s reputation.

McQueary’s attorney, Elliot A. Strokoff of Strokoff & Cowden in Harrisburg could not be reached for comment.

The university is being represented by Nancy Conrad of White & Williams in Center Valley, Pa. Conrad was not available for comment.

Ben Present can be contacted at 215-557-2315 or [email protected]. Follow him on Twitter @BPresentTLI.

NCAA Agrees Not to Dole Out Any Penn State Fine Money for Now

By Ben Present
Of the Legal Staff

The NCAA has agreed to not dole out any of the $12 million Penn State has paid to it as part of the unprecedented sanctions the organization levied against the school for its handling of sex-abuse allegations against Jerry Sandusky, the school’s former assistant football coach and a convicted serial child molester.

State Senator Jake Corman, R-Centre, announced the agreement following a lawsuit he filed against the NCAA earlier this month in which he asked the Commonwealth Court to block the NCAA from releasing any of Penn State’s fine money to organizations outside of Pennsylvania.

In July, the NCAA hit Penn State with a $60 million fine, a four-year ban on postseason play, a drop-off in scholarships, and the vacating of seasons worth of victories for the university's storied football program.

The NCAA has vowed to use the $60 million to help fund organizations that benefit victims of child sex-abuse. While negotiations continue, Corman announced Thursday that the NCAA agreed to not "disperse or otherwise dissipate" any of the $12 million Penn State has already paid.

"I believe the fine money, which is coming from Pennsylvania residents, should stay in Pennsylvania and benefit our organizations and children,” Corman said in a press release. “Every dollar will continue to go to worthy and valuable child-abuse prevention and educational organizations, except this way, the connection between Pennsylvania resident funds and Pennsylvania benefits will be clear."

Corman’s lawsuit is not to be confused with the federal antitrust action filed by Governor Tom Corbett on behalf of the state of Pennsylvania. Corbett alleges the NCAA violated its own bylaws in issuing what the governor called “unlawful and overreaching” sanctions against the school, which receives hundreds of millions of dollars from taxpayers each year.

Corbett is seeking the entirety of the sanctions to be dropped, though he has said the $60 million would go to organizations that help victims of abuse either way.

Ben Present can be contacted at 215-557-2315 or [email protected]. Follow him on Twitter@BPresentTLI.

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the state Supreme Court mulling the “error in judgment rule” in medical malpractice cases. As reporter Ben Present writes, an attorney representing the estate of a two-month-old baby who died from a viral infection of the heart told the court Wednesday that the trial court’s jury instruction discussing the rule reflected precarious legal terrain.

Below the fold on Page 1, reporter Zack Needles writes that the state Superior Court has denied Cozen O’Connor’s request to reopen a discontinued suit filed against it by former Wolf Block attorneys in order to get a ruling that the statute of limitations wasn’t tolled.

In more Regional News on Page 3, reporter Saranac Hale Spencer writes that the Third Circuit has suggested that U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania amend the time limit he imposed for an upcoming trial.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Franchise Law column on Page 5, Craig R. Tractenberg writes a report from the Restaurant Development and Finance Conference that took place in Las Vegas.

In a Legal Marketing column on Page 7, Abby Raanan and Jennifer Smuts write about building relationships and the value of alumni programs.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal and Pa. Law Weekly

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Also in today’s paper is the 2012 edition of PaLaw, our annual report on the legal profession.

The top story in today’s Legal is this year’s managing partners survey. As reporter Gina Passarella writes, layoffs and de-equitizations could return in Pennsylvania, according to the managing partners anonymously surveyed.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that a discovery order in the Zoloft multidistrict litigation has been approved. The opposing sides negotiated the plan to set relatively early trial dates while also setting early hearings over the science behind allegations.

Below the fold on Page 1, Amaris Elliott-Engel writes the second in her Claims Chaos series, this time on mass money in claims administration raising questions.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In a Health Care Law column on page 5, Vasilios J. Kalogredis and Karilynn Bayus write that the OIG has issued a favorable on-call coverage arrangement opinion.

In a U.S. Supreme Court column on Page 7, Stephen A. Miller and Thomas M. O’Rourke write about the limits of judicial authority.

Today’s lead story in PLW is a preview of state Supreme Court oral arguments that are opening today. As reporter Ben Present writes, the viability of the “error in judgment” medical malpractice defense tops the argument session.

Below the fold on Page 1, Amaris Elliott-Engel writes that law enforcement is increasing its focus on “false confessions.”

On Page 3, reporter Zack Needles writes that a Lackawanna County judge has tossed a coal dust exposure FELA claim.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes about lawyers who represent corporations and serve on boards; Matthew T. Mangino’s Criminal Practice column about how Miller v. Alabama changes the dynamics of sentencing; and Leonard Deutchman’s Cyberlaw column on backup tapes.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Court Rules Cemetery Not on the Hook for Sanctions

By Ben Present
Of the Legal Staff

Just because a company is a cemetery doesn’t make the cemetery a “cemetery company.”

That was made clear in a recent decision from the Commonwealth Court in which a three-judge panel ruled that a Philadelphia cemetery, long past its last lot sale, did not have to pay the costs associated with running cemeteries that are currently open for business.

At issue in the case was whether Mount Vernon Cemetery Co. should be required, under the state Burial Grounds Act, to register for a certificate with the Real Estate Commission as a “cemetery company.”

Under a final order from the commission, sanctions of $10,000 per year for 28 years issued by the commission’s Bureau of Professional and Occupational Affairs (BPOA) would have been required. But the panel, led by Judge P. Kevin Brobson, reversed the commission’s decision.

The unanimous panel refused to hold the cemetery to standards within which it has not fallen since before the law was enacted. The cemetery sold its last plot in 1968, more than a decade before the Burial Grounds Act was enacted.

“There is simply no support for a contention that an entity, that is not currently offering for sale or selling a cemetery lot and that has never offered for sale or sold a cemetery lot subsequent to the enactment of the Burial Grounds Act and the Real Estate Act, meets the definition of a ‘cemetery company’ under those acts,” Brobson wrote. “Thus, based upon the clear statutory language of both acts, we must conclude that [Mount Vernon] is not a ‘cemetery company.’”

Both parties agreed Mount Vernon was a “cemetery,” as defined in Section 101 of the Burial Grounds Act, Brobson said.

The commission, on the other hand, argued the court must interpret Section 304(a) – the registration requirement – of the law to include all entities that operate cemeteries that aren’t churches or fraternal organizations. Otherwise, Brobson said the commission argued, “‘any other cemetery business’” would be reduced to surplusage.

Alfred W. Putnam Jr. of Drinker, Biddle & Reath, who represented the cemetery, said the commission posted its position on the matter on its website before the case came before the panel.

The attorney added the cemetery’s president would have been out of business had he been forced to pay the BPOA sanctions.

“I think the court’s analysis is right,” Putnam said. “It’s a question of how a cemetery company is defined in the statute. Although the company is named, it is not a cemetery company as that term is defined in a statute.”

“You can’t read that statute when it defines it terms as a cemetery company when you’re dealing with a company that is not selling lots,” he added.