A lawsuit former Penn State assistant football coach Mike McQueary filed against Penn State for defamation and other claims in the fallout from the Jerry Sandusky sex-abuse scandal has survived preliminary objections.
Chester County Court of Common Pleas Judge Thomas G. Gavin, specially presiding in Centre County, said in an opinion Tuesday that McQueary had adequately pleaded the necessary elements of his defamation and misrepresentation claims against the university and that the claims in McQueary’s complaint were all pleaded with sufficient specificity.
McQueary, who was the prosecution’s key eyewitness in the trial of Sandusky and long contends he saw Sandusky molest a boy in a Penn State locker room, has claimed he lost his job with the university because he chose to come forward about Sandusky. McQueary 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.
Sandusky, who McQueary’s lawsuit identifies only as an adult male, is serving a lengthy prison sentence for convictions on 45 of 48 counts of child sex abuse.
In a lawsuit filed last fall, McQueary claimed that statements made by Spanier as the sex-abuse scandal was breaking "clearly suggest" McQueary was lying in his accounts regarding the "shower incident." In one of the statements, released on Penn State’s website, Spanier vows his "unconditional support" to Schultz and Curley — now facing perjury and other charges — to whom McQueary reported the allegations back in 2001.
Spanier was charged about a year after prosecutors first charged Schultz and Curley. Now all three men face charges for perjury, endangering the welfare of children, criminal conspiracy, and other charges.
For Gavin, McQueary’s defamation claim survived on account of the fact that Spanier’s statements were "capable of defamatory meaning."
"If the charges against Schultz and Curley for perjury in their testimony concerning McQueary’s report to them regarding what he witnessed in a shower of the Lasch Football Building between [Sandusky] and a young boy are groundless, one cannot help but deduce that McQueary’s contradictory testimony is untruthful," Gavin said.
"Dishonesty before a grand jury bears criminal culpability and is obviously of a nature to ‘blacken a person’s reputation or expose him to public hatred, contempt or ridicule,’" Gavin added, citing Agriss v. Roadway Express, a 1984 Pennsylvania Superior Court case. "The application to McQueary is especially understandable to the listener or reader because Spanier references the ‘presentments’ of the grand jury which set forth a summary of the testimony of Curley, Schultz and McQueary and the grand jury’s conclusions that Curley and Schultz were not honest in their testimony and recommended perjury charges."
McQueary filed his three-count complaint against Penn State in October of last year. He sued the university for $4 million — his projection of his own earnings over 25 years coaching Penn State football — under whistleblower, defamation and misrepresentation causes of action.
In his ruling Tuesday, Gavin said Penn State would also have to defend the misrepresentation claim, in which McQueary alleged Curley and Schultz misrepresented their intentions to him in 2001 by telling him they would see to it that his allegations would be appropriately followed.
More specifically, McQueary said the administrators, unbeknownst to him, "had decided to pursue a course of action that would avoid an investigation by any law enforcement investigator or other trained investigator and try to keep [his] report, and the underlying incident, a secret in an effort to preserve the reputation of the defendant university."
In its preliminary objections, Penn State challenged the misrepresentation claim on legal grounds, arguing the lawsuit did not make clear whether McQueary was arguing a negligent misrepresentation or an intentional one.
But Gavin, noting that McQueary’s counsel said at oral argument that he was arguing intentional misrepresentation, said McQueary was on solid legal terrain for the time being. Penn State had also argued the alleged misrepresentation took place too long ago to have proximately caused McQueary’s damages as McQueary was fired after Sandusky was arrested.
But Gavin declined to endorse that theory, as well, holding that Pennsylvania appellate courts "have not established any specific timeframe limiting damages."
Because he could not conclude with certainty that the alleged misrepresentation could not have been a substantial factor in bringing the damages McQueary has alleged, Gavin overruled the school’s preliminary objection as to that count.
Lastly, as to whether McQueary’s complaint was specific enough, Gavin said the complaint allowed the university room to formulate an answer and prepare a defense.
He noted McQueary has stipulated that he is not pursuing a common-law claim for wrongful discharge or negligent misrepresentation, but added that the court considered the nature of the whistleblower and misrepresentation claims "quite obvious" based on the pleadings.
Dismissing Penn State’s final argument to remove McQueary’s claim for punitive damages, Gavin said McQueary sufficiently pleaded facts of outrageous conduct on Penn State’s part.
"McQueary asserted that Spanier, in reckless disregard for the truth and in an outrageous effort to provide full and public support of the university to two criminal defendants … and in an effort to assist in their exoneration, published the release on Penn State Live," Gavin said. "McQueary further averred that Spanier did so to preserve the reputation of Penn State and to make McQueary the scapegoat in this [Sandusky] scandal."
Gavin also said McQueary’s allegations that Penn State quarantined him from his friends and colleagues and banned him from using the school’s facilities sufficed to advance a claim for punitive damages.
McQueary’s attorney, Elliot A. Strokoff of Strokoff & Cowden in Harrisburg, did not return a call requesting comment.
Nancy Conrad, of the Lehigh Valley, Pa., office of White and Williams, is representing the university in the McQueary case and did not return a call requesting comment.
Meanwhile, last week, the supervising judge presiding over the grand jury proceedings declined to rule on challenges lodged by the former administrators to quash the grand jury presentments against them, concluding his jurisdiction ended when the presentments were handed up to prosecutors.
But that didn’t stop Senior Judge Barry Feudale from offering up his opinion — which he admitted had no legal value — on whether Spanier, Curley and Schultz should succeed in their attempts to quash the presentments over attorney-client privilege concerns and confusion as to whether Penn State General Counsel Cynthia Baldwin represented them individually at the grand jury.
In short, his answer was no.
(Copies of the seven-page opinion in McQueary v. The Pennsylvania State University, PICS No. 13-0892, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •