by Geoff Rushton
Beta Theta Pi’s former Penn State chapter has requested that a Centre County judge delay alumnus Donald Abbey’s lawsuit against the fraternity.
The Alpha Upsilon chapter, which is the alumni corporation that owns the fraternity house at 220 N. Burrowes St., wants a stay in the civil proceedings until criminal cases stemming from the death of fraternity pledge and Penn State student Timothy Piazza are concluded.
Piazza sustained fatal injuries during a bid acceptance event at the fraternity house in February 2017. Investigators said he was given 18 alcoholic drinks in 82 minutes and suffered multiple falls throughout the night of Feb. 2 and morning of Feb. 3, resulting in nonrecoverable brain injuries.
That ultimately resulted in criminal charges against 26 former fraternity brothers and the chapter itself. Beta Theta Pi, meanwhile, was permanently banned from Penn State. Abbey filed a lawsuit against the chapter, claiming he is owed nearly $10 million he loaned for renovations, repairs and operations for the house. He says that per a funding agreement, the money had to be repaid if Alpha Upsilon ceased to be an active chapter of Beta Theta Pi.
The chapter says the money was a gift and its full board never signed on to the funding agreement. In previous filings, attorneys have said the house is the chapter’s only significant asset and would be the means of paying any judgment entered in Abbey’s favor
In filings on Monday, attorney Michael Leahey wrote that if the civil suit were to proceed simultaneously, it would be prejudicial to the defense for the chapter and its former members in the criminal case.
The motion to stay sets forth several factors. Discovery requests by Abbey’s attorney overlap with the criminal proceedings, Leahey wrote. That includes video surveillance footage from the house, which former District Attorney Stacy Parks Miller referred to as critical evidence. Abbey also wants disciplinary files of former members, which Leahey described as confidential and only in possession of the chapter because of its role as a criminal defendant.
“The disclosure of information requested by Abbey would be highly prejudicial to both the [chapter]and the undergraduate members… receiving a fair trial in the criminal matter,” the filing states.
Leahey also argues that a stay would not be harmful to Abbey and that “it is anticipated the criminal trial will linger for an extended period of time.”
In addition to the disclosure of discovery prejudicing the criminal defense, the chapter contends that paying legal fees to defend the criminal and civil cases at the same time “are placing a significant burden” on it.
Another interest the court is required to consider, according to the filing, is the interest of the public. Leahey wrote that the public does not have an interest in the civil matter.
In a second filing, Leahey responded to Abbey’s motion for answers to interrogatories, production of documents and depositions of 12 individuals. The chapter opposed Abbey’s motion to compel, or alternatively for a protective order to be put in place.
The chapter again contended that many of the discovery requests for video footage and disciplinary were confidential and would be prejudicial to the defense in the criminal cases. Leahey wrote that he had asked that both parties enter into a protective agreement, but that Abbey’s counsel refused and gave no response as to why.
“The material sought through Abbey’s discovery would be highly prejudicial to the criminal defendants if leaked to the media or others and would further endanger their right to a fair trial and unbiased jury” Leahey wrote.
With new District Attorney Bernie Cantorna recusing himself from the criminal case and Attorney General Josh Shapiro just announcing on Monday that his office would take over prosecution, the chapter also wants the new prosecuting authority to weigh in on disclosure of potential grand jury material.
Judge Katherine Oliver previously denied Abbey’s motion for a summary judgment in the case, as well as a request for an injunction to prevent the chapter from providing accommodations for a fee to alumni on weekends.
In December, Abbey filed a second lawsuit on behalf of all members of the chapter against individual board members alleging a breach of fiduciary duty.