Published By: Maxwell S. Kennerly, Esquire

Penn State Liability

Subscribe to Penn State Liability via RSS

[Third Update, June 6, 2013: Judge Kane has dismissed the lawsuit. Here’s the order, concluding:

The Governor’s complaint implicates the extraordinary power of a non-governmental entity to dictate the course of an iconic public institution, and raises serious questions about the indirect economic impact of NCAA sanctions on innocent parties. These are important questions deserving of public debate, but they are not antitrust questions. In another forum the complaint’s appeal to equity and common sense may win the day, but in the antitrust world these arguments fail to advance the ball. Plaintiff’s complaint fails on all prongs: it fails to allege commercial activity subject to the Sherman Act; it fails to allege that Defendant’s activity constituted a violation of Section 1 of the Sherman Act; and, it fails to allege that Plaintiff suffered an antitrust injury. On thorough review, this Court can find no basis in antitrust law for concluding that the harms alleged entitle Plaintiff to relief.

The Court thus dismissed the claims on standing, on their merits, and on even the factual predicate that antitrust law was implicated. Like I had said before, “Pennsylvania still has problems showing a nexus between that antitrust violation and a viable claim, regardless of whether we phrase it as a matter of standing, pleading, or causation,” and that’s essentially what the Court held.]

[Second Update, February 8, 2013: The NCAA has filed its brief arguing that the NCAA’s enforcement action was not subject to antitrust law, that it was procompetitive, that the complaint fails to allege anticompetitive effects in a relevant market, and that the plaintiff lacks standing.]

[Update: Obviously, there’s been plenty of coverage. See this post at SB Nation, this report at Reuters, and this story at Morning Call, the latter two of which quote me. Others differ on the standing issue (in essence, they assume a State always has standing to challenge any alleged antitrust violation), but most everyone agrees the case is a tough sell. See my comment at SB Nation — even if we begin by assuming the NCAA violated antitrust laws, given the indirect nature of the claim here, Pennsylvania still has problems showing a nexus between that antitrust violation and a viable claim, regardless of whether we phrase it as a matter of standing, pleading, or causation.]

I spent plenty of time on this blog discussing Penn State’s civil liability following the Jerry Sandusky abuse scandal, with most of my thoughts in this post. At this point, the Freeh report was rightly damning, and PSU has, as I hoped they would, brought in outside help (Ken Feinberg, the most prominent mediator in the country) to try to resolve the claims.

I didn’t dwell on the consent decree Penn State entered into with the NCAA sanctions — as they say, a deal is a deal, and that’s just as true for a university and an athletic association, except to point out that there was no reason for the NCAA to care that a minority of the Penn State’s Board of Trustees disagreed with the decision to enter into the consent decree. Corporations act through their management, chosen by their Board of Trustees; the thoughts and feelings of a minority of trustees aren’t relevant to anyone dealing with the party.

Earlier today, the issue returned with a vengeance, as Governor Corbett announced his intention to file, on behalf of the Commonwealth of Pennsylvania, an antitrust lawsuit against the NCAA. When a reporter at the press conference asked how the Governor could have standing, his chief counsel responded they were using parens patriae standing. Here’s a PDF copy of the complaint. In essence, Corbett, claiming to act on behalf of Commonwealth of Pennsylvania (I write “claiming” because, as described below, federal law authorizes the attorney general, not the governor, to act) alleges the NCAA’s sanctions against Penn State violate federal antitrust law. The real meat of the lawsuit starts on page 30. The claim is, in essence:

[T]he sanctions against Penn State do not even ostensibly serve the NCAA’s stated goal of protecting the fairness of intercollegiate athletic competition. Rather, they were taken for the purposes of debilitating a once-powerful football program, enhancing the NCAA’s own reputation, and boosting the competing football programs of cetrain member colleges and universities by removing from competition one of the leading competitors.

Grab a cup of coffee, we have a lot to talk about here.
Continue Reading 4 Reasons Why Gov. Corbett’s Antitrust Lawsuit Against The NCAA Is On Shaky Ground

Read more about our law firm’s Pennsylvania sexual abuse lawyers.

In less than three months, Joe Paterno went from one of the most revered figures in sports and a Pennsylvania institution to being implicated in a scandal, terminated from the job he had held for generations, and excoriated by the media to a historical figure who is no longer with us. He passed away over the weekend at the age of 85. A memento mori indeed.

I did not attend Penn State, so I’ll leave the remembrances to others. Paterno died, however, amidst a national scandal, two criminal prosecutions, and likely more than a dozen civil lawsuits to be filed. In those same three months the legal issues surrounding the Sandusky indictment have already advanced considerably, and now there’s a new question: what effect will Joe Paterno’s death have on the ensuing criminal and civil litigation?

I was quoted in a Reuters article that addressed those issues:

Because Paterno was not believed to have witnessed any purported abuse, his testimony would not have been crucial to Sandusky trial, said Paul Callan, a former prosecutor and criminal defense attorney.

But his death could set back the criminal case against Curley and Schultz.

“The Confrontation Clause (of the constitution) guarantees that criminal defendants will have the right to confront and cross-examine the witnesses against them at the time of trial,” Callan said. “No defense attorneys were present at the grand jury proceedings to do such a cross-examination.”

Max Kennerly, a Philadelphia trial lawyer who has followed the case, said Paterno’s death was unlikely to alter any civil litigation being contemplated by Sandusky’s accusers. If any were considering suing Paterno, they could just name his estate.

“Death doesn’t change your status as a party,” Kennerly said.

It wasn’t my intent to sound callous, but, in the legal world, death typically doesn’t break a case except where either a criminal defendant dies (and there’s no point in going forward) or the sole complaining witness against a criminal defendant dies (“no witness, no case” is the disturbing motto sometimes tied to witness intimidation or witness murder prosecutions, like Paul Bergrin’s). Here, Paterno wasn’t a defendant and, as far as anyone has said publicly, he didn’t witness any of the sexual assaults nor did Jerry Sandusky make any incriminating remarks to Paterno.
Continue Reading The Legal Effect of Paterno’s Death

My post on the potential civil lawsuits arising from the Jerry Sandusky molestation scandal at PSU still generates a fair amount of traffic, mostly from people looking for updates on the latest legal developments. If the internet asks, it shall receive.

There have been four major developments relating to the case:

  1. A preliminary hearing for the criminal charges against Tim Curley and Gary Schultz;
  2. The filing of another civil lawsuit against Sandusky, Penn State, and The Second Mile;
  3. The filing of a declaratory judgment action by Federal Insurance Company of New Jersey, the insurance company for The Second Mile, to obtain a court order relieving it of any duty to defend or to indemnify Sandusky for the sexual abuse claims against him; and,
  4. The disclosure of multiple allegations of child molestation against longtime Philadelphia Daily News sportswriter Bill Conlin, allegations involving conduct from decades ago, apparently spurned in part by the Sandusky indictment. (This development is legally connected to the Sandusky indictment because of the statute of limitations, as explained below).

Let’s consider them bit by bit.Continue Reading Sandusky Civil Law Update: Insurance, New Lawsuit, and the Preliminary Hearing

The Sandusky child molestation scandal at Penn State continues to be the biggest legal news in Pennsylvania. One lawsuit against Penn State and the Second Mile has already been filed, presumably because the victim was either nearing, or had already passed, the statute of limitations. A civil lawsuit can be filed at any point after a criminal act, though in that case the civil litigation is usually put on hold until the criminal case is finished.

I’ve already discussed most of the issues in the cases that could be filed by sexual abuse survivors in my previous post, linked above, but a new issue has started to bubble up: what happens to former football coach Joe Paterno, president Graham B. Spanier, athletic director Tim Curley, and university vice president Gary Schultz. Paterno and Spanier avoided criminal prosecution but were swiftly fired by the Board of Trustees for their roles in the scandal. (Technically, Spanier was given an ultimatum: resign or be fired, an effective termination that may have been given to Paterno as well. Spanier chose to resign.) Curley and Schultz were indicted for perjury and failing to report child abuse, after which Curley voluntarily went on administrative leave and Schultz retired.

Plenty has been written about the criminal prosecution about Curley and Schultz. As this Reuters analysis points out, prosecution on the failure-to-report-abuse claim might be tricky, but perjury is perjury, and it’s Curley’s and Schultz’s word against Mike McQueary’s over what exactly McQueary told them.

Outside of the criminal aspect, there’s an important civil litigation aspect just starting to gain traction, and that’s whether Paterno, Spanier, Curley or Schultz might have their own claims against Penn State. Consider this article about the PSU Trustees and Pennsylvania’s Sunshine Law:

[Q]uestions arose about whether the board had complied with the state’s Sunshine Act, because there was no evidence of required public votes on the matters. So the executive committee – nine of the 32 board members – decided to hold a brief telephone conference call Friday morning to resolve questions and formally approve those three major decisions.

The changes in status for Spanier, Paterno, and Erickson were the result of the questionable handling of child-sexual-abuse allegations against former assistant football coach Jerry Sandusky, whose arrest came five days before the departures of Paterno and Spanier.

…

“Due to the extraordinary circumstances” during the week of Nov. 6, Penn State spokesman Bill Mahon said after the executive committee’s five-minute phone call, “the board of trustees needed to act swiftly and decisively regarding personnel. While the board believes immediate action was necessary [three weeks ago], it is holding this special, preannounced public meeting of the executive committee to reaffirm and ratify the board’s prior personnel decisions.”

He added that the trustees “wanted to dot all the I’s and cross all the T’s.”

He said the firing, the resignation, and the naming of the new president were effective the week of Nov. 6. The full board will meet in January to “reaffirm” the action taken by the executive committee Friday, he added.

Even apart from the Sunshine Act, there are issues here worth exploring: what legal rights, if any, might Paterno and Spanier have against Penn State? I’ve seen news stories indicating that, at least for Spanier, they are “working out” a “multi-million dollar” severance package. Let’s look a little more deeply into that. 
Continue Reading Do Paterno And Spanier Have Golden Parachutes At Penn State?

Read more about Pennsylvania child molestation lawsuits.

The big legal news in Pennsylvania last week was of course the indictment of former Penn State assistant football coach Jerry Sandusky for allegedly sexually abusing at least eight children on or around Penn State. Being a civil litigator who has sued universities and has represented victims of sexual abuse on college campuses, I felt compelled to say something, so I wrote about Penn State’s potential liability in civil lawsuits brought by the victims. I reviewed and cited cases and statutes; you know, the stuff lawyers do when they want to get things right.

Then I read the news today, oh, boy.

In the New York Times:

“It’s a huge uphill battle to collect from the state,” said Saul Levmore, a professor and former dean at the University of Chicago Law School. “Plaintiff lawyers love to jump up and down about $100 million settlements, but there are a lot of hurdles in the way to that.”

Doriane Coleman, a professor at the Duke University School of Law, said that unlike the Catholic Church, which was the target of previous child abuse lawsuits, Penn State is a state institution and thereby should be protected by a doctrine known as sovereign immunity, which in essence protects state entities — and possibly state employees acting in the normal course of their jobs — from tort claims.

“I see this as very difficult to overcome,” Coleman said.

The esteemed law professors (I’ve referenced Coleman’s work favorably on this blog before) should have read my post: Penn State is not a “state institution.” Pennsylvania State University, like Temple University, Lincoln University, and the University of Pittsburgh, is part of Pennsylvania’s Commonwealth System of Higher Education, and is a “state-related university.”

Let Pennsylvania’s auditor general explain:

In 1855, the Pennsylvania legislature chartered the school that later became known as The Pennsylvania State University of the Commonwealth System of Higher Education. … The college became The Pennsylvania State University in 1953. Today, as part of the Commonwealth System of Higher Education, The Pennsylvania State University receives approximately 8 percent of its unrestricted fund revenues from the Commonwealth and is one of four state-related universities.

State-related universities don’t enjoy sovereign immunity. Doughty v. City of Philadelphia, 141 Pa.Commonwealth Ct. 659, 596 A.2d 1187 (Pa. Commw. Ct. 1991)(denying Temple University tort tmmunity). That’s in contrast to the universities in the Pennsylvania State System of Higher Education (PASSHE), which are immune. Poliskiewicz v. East Stroudsburg University, 113 Pa.Cmwlth. 13, 536 A.2d 472, 474 (1988).

[Addendum: In the comments, a smart “Guest” notes that Doughty was fact-specific to Temple University, and that the same analysis might not apply to Penn State. The commentator is right — Doughty is specific to Temple University — but there’s reason to believe Pennsylvania courts would not recognize Penn State as having sovereign immunity. In 1999, for example, the Pennsylvania Supreme Court firmly held “PSU is not an agency of the Commonwealth” for purposes of exemptions from real-estate taxation. Pa. State Univ. v. Derry Twp. Sch. Dist., 557 Pa. 91, 94, 731 A.2d 1272, 1273 (1999). I’ve cut and pasted at the end of this post the pertinent part of their reasoning.

I don’t see any reason why the analysis would be different for tort immunity, and I find it important that, although Penn State has been sued in the past, it has never really pushed the sovereign immunity argument.]Continue Reading Law Professors: Check Legal Blogs Before Adding Your Two Cents

Read more about our sexual abuse lawsuit practice.

[UPDATE, July 12, 2012: The independent report by Louis Freeh’s law firm has been released. It is damning, to say the least, concluding there was a “total and consistent disregard by the most senior leaders at Penn State for the safety and welfare of Sandusky’s child victims.” Blame is rightfully heaped upon Paterno, Spanier, Curley, and Schultz.]

[UPDATE, June 22, 2012: Jerry Sandusky was convicted on almost all counts. Reuters quoted me talking about the effect of the prosecution and conviction on the civil lawsuits pre-verdict here and post-verdict here. Short version: Penn State, as I had hoped, is signaling their willingness to settle the cases. As a legal matter, the Sandusky conviction acts as collateral estoppel on the victims’ claims that they were abused — establishing that fact conclusively in later proceedings — but that doesn’t mean Penn State is automatically liable. Also, as a practical matter, the Sandusky prosecution didn’t reveal as much about Penn States actions (or inactions) as the Schultz and Curley trials will.]

[UPDATE, March 2, 2012: The Bill of Particulars has been filed against Jerry Sandusky. A copy is available here. As The Daily Collegian reports, “eight of the 10 men connected to Sandusky’s charges were sexually abused on Penn State’s campus — in the Lasch Football Building, the East Area Locker Rooms and an outdoor pool.” That increases Penn State’s liability: in addition to claims that PSU failed to act on the reports it had, those eight men can all allege that PSU failed to maintain a safe campus by permitting Sandusky access to those facilities and allowing him to bring children onto the premises.]

[UPDATE, November 30, 2011: A previously unknown victim has filed a civil lawsuit against Sandusky, Penn State, and the Second Mile. A copy of the complaint is available here; it alleges the theories I described below, plus claims of negligent and intentional misrepresentation. There’s nothing wrong with those claims, but I don’t think they add much value. Intriguingly, the Complaint says the victim was 10 years old in 1992 — which means the statute of limitations turns on his birthday. If he turned 18 before August 27, 2000, he can’t use the 2002 amendments to preserve his claim, and will instead have to use other theories to maintain his claim, theories Pennsylvania courts have rejected in clergy abuse cases. That strikes me as profoundly unjust, and I reiterate my hope that Penn State and the Second Mile establish a compensation fund and try to work through this process amicably.]

Note: this post is long because it’s comprehensive, addressing:

  • the types of claims survivors can bring in a civil lawsuit,
  • the role of the statute of limitations, and whose claims are still within it,
  • whether or not Penn State is immune from liability under the ‘sovereign immunity’ doctrine,
  • the compensation that may be available (through settlement or jury verdict), and
  • the reality of sexual abuse litigation.

I’ve also written a couple follow-up posts under the Penn State Liability tag.

Pennsylvania and the nation has been shocked by Saturday’s grand jury presentation (essentially an indictment) of Jerry Sandusky, a former defensive coordinator for Penn State’s football team, for sexually abusing eight children that he “groomed” through a charity for troubled young boys he founded, The Second Mile. Also indicted were athletic director Tim Curley and a Penn State Senior VP, Gary Schultz, for perjury and failure to report the abuse to authorities. NPR has a breakdown of key figures and the timeline. The Pennsylvania State University Board of Trustees has fired Joe Paterno and President Graham Spanier over the scandal.

Lawyers writing about criminal indictments feel an obligation to remind everyone who might come across their articles that our legal system presumes everyone is innocent of the allegations made against them by prosecutors until they are proven guilty in court. Everyone — even apparent child molesters — is entitled to their day in court, so I’ll reiterate that here. My analysis of the civil claims below, though, presumes the accusations made by grand jury’s presentation are largely true.

It’s bad enough that two separate Penn State officials apparently tried so hard to cover up the sexual abuse that they got themselves indicted, but perhaps even more disturbing is how preventable most of the abuse was:

HARRISBURG, Pa. – Penn State officials had three opportunities to stop Jerry Sandusky from preying on young boys but failed to take action, state police Commissioner Frank Noonan said Monday at a news conference with Attorney General Linda Kelly.

“This is not a case about football, it’s not a case about universities_it’s about children who have their innocence taken from them and a culture that did not nothing to stop it or prevent it from happening to others,” Noonan said.

Two Penn State administrators are charged with lying to the grand jury and failing to report an abuse allegation. Kelly said Monday that Coach Joe Paterno was a witness for the grand jury and faces no charges.

In 1998, there was a police investigation in which [Sandusky] “made admissions about inappropriate contact in a shower room.” Nothing happened.

In 2000, janitors saw him performing oral sex on a child in the shower room, but they discussed it only amongst themselves. Nothing happened.

In 2002, a graduate student (and now an assistant coach there) reported to Paterno “fondling or something sexual,” which Paterno apparently passed on to school administrations. Nothing happened.

We like to think that a sexual predator could only molest multiple children over the course of years through methodical concealment of their crimes and intimidation of witnesses, but that simply wasn’t the case. This also wasn’t a failure of one or two people in a moment of weakness, doubt or cowardice. The whole system abused these children by enabling their abuser.

Consider this part of the grand jury presentment:

Schultz testified that he knew about an investigation of Sandusky that occurred in 1998, that the “child protection agency” had done, and he testified that he believed this same agency was investigating the 2002 report by the graduate assistant. Schultz acknowledged that there were similarities between the 1998 and 2002 allegations, both of which involved minor boys in the football showers with Sandusky behaving in a sexually inappropriate manner. Schultz testified that the 1998 incident was reviewed by the University Police and “the child protection agency” with the blessing of then-University counsel Wendell Courtney. Courtney was then and remains counsel for The Second Mile. Schultz confirmed that University President Graham Spanier was apprised in 2002 that a report of an incident involving Sandusky and a child in the showers on campus had been reported by an employee. Schultz testified that Spanier approved the decision to ban Sandusky from bringing children into the football locker room and the decision to advise The Second Mile of the 2002 incident.

Although Schultz oversaw the University Police as part of his position, he never reported the 2002 incident to the University Police or other police agency, never sought or reviewed a police report on the 1998 incident and never attempted to learn the identity of the child in the shower in 2002. No one from the University did so. Schultz did not ask the graduate assistant for specifics. No one ever did. Schultz expressed surprise upon learning that the 1998 investigation by University Police produced a lengthy police report. Schultz said there was never any discussion between himself and Curley about turning the 2002 incident over to any police agency. Schultz retired in June 2009 but currently holds the same position as a senior vice president with Penn State, on an interim basis.

Lest there be any confusion that Penn State had simply failed to grasp the severity of an ambiguous situation, the graduate student reported that he “saw a naked boy, Victim 2, whose age he estimated to be ten years old” being raped by Sandusky. That’s what the leadership at Penn State, apparently up to the University President, thought wasn’t worth bringing to the attention of the police, not even the campus police.

It’s hard to come up with the right words. Appalling. Inexcusable. As a trial lawyer, the word “reckless” jumps out at me.

The Legal Claims That Sexual Abuse Survivors Can Bring In A Lawsuit Against Penn State, The Second Mile and The Employees Involved In The Cover Up


Under Pennsylvania law:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

That’s from the Pennsylvania Supreme Court opinion Hutchison ex rel. Hutchison v. Luddy, 870 A. 2d 766 (Pa. 2005)(quoting Restatement (Second) of Torts § 500), a clergy abuse which evaluated a jury verdict which included a one-million-dollar punitive damages award against the Diocese of Altoona-Johnstown after the jury found:

that the Diocesan Parties had knowledge that Luddy was molesting children; that they were negligent in their retention and supervision of Luddy; that they engaged in a pattern and practice of ignoring allegations of pedophilic behavior among priests; and that their negligence was a substantial factor in bringing about harm to [the plaintiff].

Unsurprisingly, numerous comparisons have been made between the the Catholic church’s handling of repeated child molestation by clergy and Penn State’s handling of Sandusky. (One terrible similarly is that the Diocese of Altoona-Johnstown is the diocese for Centre County, where State College is located.) In terms of a civil lawsuit by the victims against Penn State, like with the Annie Le wrongful death case against Yale, in every state I know of employers may be directly liable for the negligent hiring, retention or supervision of an employee who, through a tortious or criminal act, injures a third party. In these cases, victims’ lawyers tend to raise three separate claims:

  • negligence (for failing to protect the children; it’s more analogous to an inadequate security claim than an employment-related claim),
  • negligent supervision (for failing to oversee the abusive priests), and
  • negligent retention (for failing to fire the priests after the first incident).

Unlike with the Annie Le case, though, both the Catholic Church (sometimes including the Holy See, sometimes on the Archdiocese level) and Penn State didn’t have to predict that abuse might happen, they knew it was happening, did nothing to stop it, and took measures to cover it up. Thus, the priest abuse cases — and likely the Penn State cases —also allege:

  • vicarious liability (alleging the Church’s failure to report the priest to the authorities essentially ratified that he had been acting within in the course and scope of his job) and
  • civil conspiracy (for working amongst themselves and with the priest to cover up the abuse).

The latter two are unusual for your typical “employee who committed a crime,” but in the clergy cases, and potentially in the Penn State case, they’ll fit. That’s what Penn State gets for permitting the abuse to continue.

Here, there’s another claim, too, which might be the easiest to prove: negligence per se, in which a plaintiff alleges that the defendant violated a particular statute or regulation that was intended to protect like the plaintiff. That particular statute here would be Pennsylvania’s failure-to-report law, 23 Pa.C.S. Section 6311, which requires:

A person who, in the course of employment, occupation or practice of a profession, comes into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when the person has reasonable cause to suspect, on the basis of medical, professional or other training and experience, that a child under the care, supervision, guidance or training of that person or of an agency, institution, organization or other entity with which that person is affiliated is a victim of child abuse, including child abuse by an individual who is not a perpetrator.

That’s the same law Curley and Schultz have been criminally charged with violating. There aren’t too many court opinions on the use of negligence per se claims against individuals and entities that failed to report abuse, but the two federal court opinions on the subject both permitted the claim in similar sexual abuse cases. Valesky v. Roman Archdiocese of Greensburg, 2010 U.S. Dist. LEXIS 43857 (W.D. Pa. 2010)(citing Doe v. Liberatore, 478 F. Supp. 2d 742 (M.D. Pa. 2007)).

If Curley and Schultz are found guilty of violating the mandatory reporter law — which isn’t a sure bet, but which seems plausible — that will deal a heavy blow to Penn State’s best defenses, because there’s no doubt Curley and Schultz were acting in the course and scope of their employment when they failed to follow up on and report the abuse, and so Penn State is vicariously liable for their conduct.

Even if Curley and Schultz are found not guilty of violating the reporting law, and even if it appears that Penn State — apart from Sandusky — complied with all criminal laws, that does not insulate them from potential liability for punitive damages. The Pennsylvania Supreme Court has already ruled that even compliance with detailed governmental safety standards “does not, standing alone, automatically insulate a defendant from punitive damages.” Phillips v. Cricket Lighters, 584 Pa. 179, 191, 883 A.2d 439, 447 (2005).

Penn State Is Not A State University, But Instead A “State-Related” University, And So Is Almost Certainly Not Immune From Liability Under The Doctrine of Sovereign Immunity


Some lawyers have presumed that Pennsylvania State University, as a public university, is immune from tort liability as an instrumentality of the Commonwealth under 42 Pa.C.S. § 8521. That’s not necessarily the case, however. Temple University, for example, is also a public university and is also part of Pennsylvania’s Commonwealth System of Higher Education, but the Commonwealth Court held that Temple was not immune from tort lawsuits because it remains independent in its operation and is not classified by statute as an “agency” or as exercising “public powers.” Doughty v. City of Philadelphia, 141 Pa.Commonwealth Ct. 659, 596 A.2d 1187 (Pa. Commw. Ct. 1991). That’s in contrast to the universities in the Pennsylvania State System of Higher Education (PASSHE), which are immune. Poliskiewicz v. East Stroudsburg University, 113 Pa.Cmwlth. 13, 536 A.2d 472, 474 (1988).

[Addendum: In the comments to a followup post I wrote about law professors wrongly asserting Penn State was immune from liability, a smart “Guest” notes that Doughty was fact-specific to Temple University, and that the same analysis might not apply to Penn State. The commentator is right — Doughty is specific to Temple University — but there’s reason to believe Pennsylvania courts would not recognize Penn State as having sovereign immunity. In 1999, for example, the Pennsylvania Supreme Court firmly held “PSU is not an agency of the Commonwealth” for purposes of exemptions from real-estate taxation. Pa. State Univ. v. Derry Twp. Sch. Dist., 557 Pa. 91, 94, 731 A.2d 1272, 1273 (1999). I’ve cut and pasted the pertinent part of their reasoning to the end of that post. There’s every reason to believe the Pennsylvania Supreme Court would apply the exact same reasoning for tort liability.]

Further, as Jeff Anderson argues, if the Penn State coaches and administrators try to go down the sovereign immunity route by claiming they’re state employees and thus immune from state tort claims like negligence, winning that argument — i.e., the argument that they are state actors — can expose them to liability for federal civil rights claims. Civil rights claims are harder to prove at trial than negligence claims (here’s one of my posts discussing the difficulties of winning even an obvious civil rights case), but, on these facts, Penn State is going to have a hard time arguing they and their employees were not “deliberately indifference” to the rights of those children. They knew. They did nothing.

The State Of Limitations Might Have Run For Some Victims, But Not All, Due To Changes In Pennsylvania’s Childhood Sexual Abuse Statute In 2002


There’s a problem with some of the civil cases that might be filed: the statute of limitations.Continue Reading Can Sandusky’s Sexual Abuse Victims Sue Penn State?