Following the university’s appeal of his decision, a Philadelphia judge has issued an opinion outlining why a dispute between Penn State and its insurance company, stemming from the Jerry Sandusky sex-abuse scandal, should be litigated in Philadelphia.
The parties have agreed the matter should be coordinated. The only question, now set to be decided by the state Superior Court, is where — Centre County or Philadelphia?
Philadelphia Court of Common Pleas Judge Arnold L. New pointed to Pennsylvania Manufacturers’ Association Insurance Co.’s beating Penn State to the legal filing punch and the capacities of Philadelphia’s Commerce Court as two reasons why the case should play out in Philadelphia. Additionally, the underlying civil suit giving rise to the insurance quarrel — the first lawsuit naming the university as a defendant related to sex-abuse allegations against Sandusky — was filed in Philadelphia, New noted.
The case dates back to January of this year, when PMA filed a declaratory judgment action in the Philadelphia Court of Common Pleas against Penn State. The action was to determine Penn State’s right to defense coverage and indemnity from PMA, its longtime liability carrier, in the first civil suit filed against the university for its role in Sandusky’s alleged sexual abuse of a 30-year-old man when the man was a preteen.
Penn State followed with its own separate legal action in the Centre County Court of Common Pleas, alleging PMA breached its contract with the school and acted in bad faith both by initially denying coverage and then following with a lawsuit. It asked for a Centre County jury to decide all matters triable by jury.
A venue dispute ensued, and Penn State lost at the trial level on two occasions. First, New granted PMA’s request to coordinate and transfer the lawsuit to Philadelphia on April 10. Then, Philadelphia Common Pleas Judge Gary S. Glazer denied a request from the university to take the proceedings to Centre County.
In his five-page opinion handed down Aug. 7, New supported his decision to grant PMA’s request.
New pointed out Rule of Civil Procedure 213.1(c), which governs the propriety of coordination and the location for doing so, provides several factors a court should consider. Those factors pointed to Philadelphia housing the proceedings.
Penn State has argued that coordination in Philadelphia would be “oppressive and vexatious” because its witnesses would have to travel long distances. But New, calling that argument “misplaced,” said Penn State was making a “forum non conveniens” argument in the context of a coordination motion.
“It is well established the oppressive and vexatious standard is inapplicable to coordination motions ‘because a Rule 213.1 transfer serves different purposes than a change of venue to forum non conveniens, [thus] the convenience of all parties or witnesses is not a prerequisite to such a transfer,’” New said, citing Superior Court precedent.
New added that convenience can be considered under Rule 213.1 and that several figures in the case, including some of the lawyers arguing for Penn State, would benefit from the First Judicial District of Pennsylvania’s accommodations. Some inconvenience is inevitable when the parties are separated by 200 miles, but Penn State’s witnesses would not be stretched beyond their means.
“PSU’s mentioned witnesses are professionals and/or employees of PSU, who can expect to be compensated for their time and inconvenience involved in travel to Philadelphia,” he said.
Philadelphia’s larger airport would be more convenient for Penn State’s attorneys from Los Angeles and Chicago, he added.
Reached by The Legal Intelligencer, one of Penn State’s lawyers contested that point.
“I don’t think our convenience is a major factor especially because we’re happy to go to Centre County,” said Jerold Oshinsky, a Los Angeles-based attorney with Jenner & Block.
Regarding the forum non conveniens and Rule 213.1 arguments, Oshinsky said Penn State briefed the issues together because, as he put it, “we think it’s all one big ball of wax.”
As for the court’s decision, which Penn State appealed back in May, Oshinsky said: “We disagree and we’ve appealed.”
PMA’s attorney, Steven Engelmyer of Philadelphia firm Kleinbard Bell & Brecker, declined to comment on the court’s opinion.
The accuser in Doe A v. Sandusky, the underlying civil case, according to his court filing, has accused Sandusky of sexually abusing him over 100 times between 1992 and 1996. He has since been identified publicly as Travis Weaver, who told his story on NBC’s Rock Center on the eve of Sandusky’s guilty verdict on 45 counts of sex crimes in June. Weaver was not one of the 10 victims prosecutors used in their case against Sandusky.
Ben Present writes for The Legal Intelligencer, a Daily Report affiliate in Philadelphia.