Donald Abbey and the Alpha Upsilon chapter of Beta Theta Pi fraternity disagree about a lot of things.
They disagree on the amount of money that Abbey gave the fraternity. They disagree on whether it was a gift. They disagree on whether there was a contract. They even disagree on whether they disagree.
“There is no dispute. This was a gift,” said Alpha Upsilon attorney Mark Bernlohr in Centre County court on Wednesday.
Abbey is suing for enforcement of the contract that he says was signed in 2009, claiming the fraternity owes him $8.5 million after it was permanently banned by Penn State in March following the February death of Timothy Piazza after a fall at a pledge party that prosecutors said included hazing and alcohol.
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Alpha Upsilon’s housing corporation board is countering that claim on a number of fronts. On one hand, the fraternity says that any money given was a no-strings-attached gift. On another, Bernlohr argued that the board had no right to execute the contract because any action affecting the house would have required a majority vote of the membership of more than 1,200 alumni.
Judge Katie Oliver pressed Bernlohr on how much money had been given and he said no such records existed, that no invoices or documentation regarding money from Abbey had been kept or provided, despite announcements publicized on both the Beta Theta Pi and Penn State websites. In 2006, Penn State said he gave $3.5 million. Abbey’s claim puts the number at $8.5 million, a total his attorney, Matt Haverstick, said came from Alpha Upsilon figures and was probably higher.
Bernlohr also insisted that the fraternity is not closed down, only suspended by the national organization.
“A suspension can be lifted,” he said.
Penn State President Eric Barron and Vice President of Student Affairs Damon Sims have both made public statements about the permanent ban on the fraternity, which is also being criminally charged in Centre County court with 147 total counts, including involuntary manslaughter, hazing and furnishing alcohol to minors. Eighteen fraternity members are also charged.
Haverstick was pushing for a summary judgment in the case while Bernlohr was asking for the judge to order it to proceed to discovery phase.
The last time Haverstick was involved in a Penn State cases was as the lawyer for state Sen. Jake Corman, R-Benner Township, in his suit against the NCAA. Discovery in that case revealed emails between the NCAA and Louis Freeh’s staff in the independent investigation of the Jerry Sandusky child sex abuse scandal.
“I want them to remember they asked for it,” Haverstick told the judge. “What I suspect is going to happen...before long, we’re going to find ourselves in front of you again...They’re going to say, ‘Discovery is unfair.’ And I will remind them when that day comes that they asked for it.”