Jon Campisi Apr. 23, 2013, 6:30am

A state trial judge has overruled defense objections in Michael McQueary’s whistleblower

suit against Pennsylvania State University.

In an April 16 opinion and order, Judge Thomas G. Gavin, who is specially presiding over the civil suit initiated by the former Penn State assistant football coach, ruled that McQueary has “sufficiently plead facts of outrageous conduct on the part of Penn State.”

McQueary sued the university early last October over claims that the school retaliated against him for his testifying in the case against former Penn State defensive coordinator Jerry Sandusky, who was convicted on 45 counts of child molestation and subsequently sent to prison for between three and six decades.

Sandusky’s lawyers are appealing the conviction and sentence.

Lawyers for Penn State filed preliminary objections in mid-January, arguing that the civil suit should be stayed until the resolution of the criminal cases against three former university officials.

The record shows that oral argument on Penn State’s objections were held in mid-March.

The suit also contains a defamation count, a claim that Penn State argues is legally insufficient.

McQueary bases his defamation count on statements made by former Penn State President Graham Spanier, whose criminal trial is pending.

Spanier’s statements, made through a university news release, touched on his support for former athletic director Tim Curley and former university vice president Gary Schultz, both of whom are Spanier’s co-defendants in the criminal case.

The judge, in overruling the preliminary objection, however, wrote that McQueary properly pled all of the necessary elements of a defamation claim.

According to Gavin’s opinion, Spanier, in his statements, referenced 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.

“Based on these considerations, the application to Plaintiff, taken in context, is clearly averred in the Complaint,” Gavin wrote. “Therefore, Plaintiff has plead all of the necessary elements of a defamation claim and the Preliminary Objection is overruled.”

Penn State also sought to dismiss McQueary’s misrepresentation claim for legal insufficiency, arguing that the claim was based on a “non-actionable future promise” and the alleged misrepresentation occurred too long ago to have proximately caused any of the alleged damages.

The alleged misrepresentation concerns communication to McQueary that Curley and Schultz understood the incident McQueary observed in a campus shower facility that was the basis for the investigation into Sandusky.

In his suit, McQueary claims that Curley and Schultz decided to pursue a course of action to avoid investigation into the incident between Sandusky and the young boy in the shower, and to keep it a secret before they communicated to McQueary that they would take action.

Penn State argued that the misrepresentation occurred too long ago to have proximately caused damages to McQueary.

In his ruling, Gavin wrote that appellate courts have not established any specific time frame limiting damages in a case such as this, and at this stage of the McQueary case, the court cannot conclude that the alleged misrepresentation could not have been a substantial factor in bringing about the alleged damages.

The judge ordered Penn State to file an answer to the complaint within 20 days of the April 16 order.

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