McQueary's attorney: Penn State's preliminary objections in whistleblower case are without legal merit

By Jon Campisi | Feb 5, 2013

A lawyer representing fired Penn State assistant football coach Michael McQueary has

filed an answer to the university’s preliminary objections in McQueary’s wrongful termination suit against his former employer, contending that the defendant’s objections, which were filed in mid January, are completely without legal merit.

Harrisburg attorney Elliot A. Strokoff filed McQueary’s answer on Feb. 1 at the Centre County Court of Common Pleas, where McQueary’s wrongful termination and defamation suit against Penn State is playing out before Senior Judge Thomas G. Gavin, who has been specially assigned to the case.

In his two-page filing, Strokoff wrote that the university’s preliminary objections “do not aver facts but only Defendant’s interpretations or summaries of the facts as set forth in the Complaint.

“There is no verification attached to the Preliminary Objections to support any averments of fact, assuming arguendo any were made,” he wrote.

Strokoff contends that Penn State’s objections are raised under the color of Pennsylvania Rules of Civil Procedures 1019(a), and 1028(a)(2), (3) and (4), and as such are to be decided according to the facts as set forth in the plaintiff’s complaint.

“Plaintiff respectfully submits that the Defendant’s Preliminary Objections are without legal merit and that the Complaint substantially complies with the Pennsylvania Rules of Civil Procedure,” Strokoff wrote. “Wherefore, the Plaintiff respectfully requests a briefing schedule and the expeditious overruling of the Defendant’s Preliminary Objections.”

The judge subsequently granted the request, records show, and scheduled oral arguments on Penn State’s objections to take place on March 18 at the Centre County Courthouse.

Gavin ordered briefs to be filed on Feb. 21 and March 8 respectively.

McQueary is suing Penn State over claims that the university defamed him and terminated his employment in retaliation for his cooperating with prosecutors while they were building their case against former Nittany Lions defensive coordinator Jerry Sandusky.

Sandusky was convicted on 45 counts of child sex-abuse last summer and subsequently sentenced to between 30 and 60 years in state prison.

In his lawsuit, McQueary alleges that he was fired from his job as an assistant football coach this past summer because of his testimony and cooperation with the commonwealth.

Late last year, Penn State attorneys sought to have the suit stayed pending the outcome of the criminal proceedings against three former Penn State administrators who are being charged in connection with the child molestation scandal.

But in late December, Gavin ruled that the suit could proceed, determining that while there may be overlapping witnesses in both cases, “there are no overlapping issues in the criminal and civil cases,” the judge had written at the time.

In addition to the wrongful termination and defamation counts, McQueary’s suit also contains a claim of whistleblower law violations.

On Jan. 14, Penn State lawyer Nancy Conrad, of the firm White and Williams, had filed the university’s preliminary objections to the complaint, in which she argued that the suit fails to set forth a viable defamation claim because the verbal and written statements that form the basis of the claim are not defamatory as a matter of law.

Under Pennsylvania law, Conrad wrote, in order to establish a claim for defamation, the plaintiff has the burden of proving the defamatory character of the communication, its publication by the defendant, its application to the plaintiff, and that special harm resulted to the plaintiff as a result of its publication.

“It is not enough that the alleged victim of a statement be embarrassed or annoyed, he must have suffered the kind of harm which has grievously fractured his standing in the community of a respectable society,” Conrad wrote, citing the state case of Scott-Taylor, Inc. v. Stokes.

Conrad wrote that “because Plaintiff’s claimed innuendo can only be obtained by means of a tortured and unreasonable construction, the statements are not defamatory.”

Conrad is asking that the defamation count be dismissed with prejudice.

The defense filing also went on to request that Gavin dismiss the misrepresentation claim for legal insufficiency, and the whistleblower and wrongful termination claims because they fail for lack of specificity and for legal insufficiency.

Conrad also contends that the complaint doesn’t specifically reference Pennsylvania’s Whistleblower Law or otherwise indicate whether McQueary asserts a claim under the Whistleblower Law.

She wrote that McQueary’s lawsuit doesn’t specifically reference a wrongful discharge claim or a “clear mandate of public policy.”

“Under these circumstances, the Complaint neither apprises Penn State of the nature and extent of the claim to allow Penn State to prepare its defense nor provides Penn State sufficient notice of what Plaintiff intends to prove at trial,” Conrad had written.

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