penn state

Unless Graham Spanier is required to file a complaint in his pending defamation suit against Louis Freeh, Freeh’s lawyers will be prevented from seeking the case’s removal to federal court, they argued to the state Superior Court on Wednesday.

Attorneys for Spanier, the ex-Penn State University president, and Freeh, who led the university’s internal investigation into the Jerry Sandusky child sex-abuse scandal, focused on whether the Centre County Court of Common Pleas correctly stayed Spanier’s defamation suit against Freeh despite the fact that Spanier has yet to file a complaint.

Freeh’s attorney, Michael L. Kichline of Dechert, argued that, because federal courts have a one-year statute of limitations to remove a case from state to federal court, failing to file a complaint could mean the statute of limitations would expire before Freeh could seek to remove the suit.

“An important right is at stake, the right of a non-citizen to remove to a federal court,” Kichline said. A brief in support of the arguments filed by Freeh last month indicated that neither Freeh, nor his former firm, Freeh Sporkin & Sullivan, which is also a defendant in the case, are citizens of Pennsylvania.

A three-judge panel composed of Judges Jack A. Panella, Anne E. Lazarus and Patricia H. Jenkins heard the arguments in Spanier v. Freeh in a courtroom in Philadelphia City Hall. Although Freeh did not appear for the arguments, Spanier was present.

Spanier’s attorney, Elizabeth K. Ainslie of Schnader Harrison Segal & Lewis, argued that her client should not have to file a verified complaint until the criminal proceedings against him in the Dauphin County Court of Common Pleas have been resolved. Spanier faces charges of perjury, endangering the welfare of children, obstructing administration of law, criminal conspiracy and failure to report in October 2012 in connection with allegedly covering up sex abuse committed by Sandusky.

Ainslie dismissed Freeh’s concern over removal as only “hypothetical.”

“We don’t know if Mr. Freeh will try to remove … or if a federal judge will find there is a bar or some equitable tolling of one year,” Ainslie said. “It is hypothetical all the way through.”

Ainslie added that Spanier has agreed not to raise any statute of limitations defense if Freeh chooses to remove the case; however, Panella noted that Ainslie could not waive the issues for the federal judge who would consider accepting the case if Freeh sought to have the case removed.

Ainslie also argued that the trial court judge correctly examined Freeh’s concerns, and that the Superior Court should give the lower court’s ruling deference. The lower court judge, Ainslie said, had also considered issues like scheduling, which she said could create a “monstrous nightmare” for the courts.

Panella, who presided on the three-judge panel, asked Kichline how the court could consider Freeh’s appeal if Freeh had not yet attempted to remove the case to federal court.

“Without exhausting that remedy, why should we address your concerns?” Panella asked.

Kichline responded that he believed federal courts would remand the case if he sought to have it removed at the current stage. Kichline also maintained that Spanier could file a complaint without jeopardizing any of his defenses in the criminal proceedings.

However, Panella questioned that assertion.

“Isn’t that the issue? He has to swear to something?” Panella said. “Isn’t that what you’re asking him to be exposed to? This is a sworn statement that’s subject to impeachment.”

Kichline disagreed.

“Dr. Spanier had no problem filing a complaint directed against Attorney General [Kathleen] Kane,” Kichline said, referring to a suit Spanier filed in the Middle District of Pennsylvania seeking a federal injunction that would stop the prosecution against him in Dauphin County.

At the time the Freeh report detailing the findings of his internal investigation was released, on July 12, 2012, Spanier’s attorneys emphatically dismissed its findings.

Freeh’s report incriminated Spanier along with two other administrators and Penn State’s legendary former head football coach, Joe Paterno, who died in January 2012. Spanier was not initially charged along with two ex-administrators, former athletic director Tim Curley and Gary Schultz, former senior vice president of business and finance.

Spanier filed a writ of summons against Freeh in July. Freeh sought to compel Spanier to file a complaint, and contended that Spanier had launched a media attack against him and his firm, and also that Spanier’s “bold, sweeping assertion” will cloud the reputations of him and his firm.

In February, Centre County Court of Common Pleas Judge Jonathan D. Grine stayed the defamation suit, citing the criminal action as a main consideration.

Max Mitchell can be contacted at 215-557-2354 or Follow him on Twitter @MMitchellTLI.