Both sides walked away with something after the judge filed a ruling in the Paterno estate’s lawsuit Monday.
The family of Joe Paterno, as well as former Penn State trustee Al Clemens and former football coaches Bill Kenney and Jay Paterno, are suing the NCAA, President Mark Emmert, former executive committee chairman Ed Ray and Penn State for breach of contract. The NCAA is also accused of conspiracy, contractual interference, defamation and disparagement. The charges all rise from actions taken in the wake of the Jerry Sandusky child sex abuse scandal.
Potter County Senior Judge John Leete conceded two points to the NCAA.
He agreed that the family of the late longtime football coach was attempting to re-litigate an issue he had already addressed in submitting the second amended complaint.
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“Further, as NCAA correctly states, although (p)laintiffs were ordered to file an amended complaint to cure specific deficiencies in their first amended complaint, this repleading was not included in that order,” he wrote. “... Plaintiffs are not amending their complaint to include a new cause of action or even a new theory of an existing action; rather, they are attempting to resurrect a claim on which this court already dismissed.”
Leete then restated his opinion that Paterno was not an “involved individual” at the time of his death in January 2012 and the estate, thus, cannot assert a claim in his place.
The NCAA also scored on the issue of the protective order. The estate’s attorneys had argued that the information the NCAA released in response to the Commonwealth Court case instigated by state Senate Majority Leader Jake Corman, whose attorneys made many documents public by filing them as attached exhibits, made for an uneven playing field. They asked to have the order, issued in September 2014, modified to allow release of any information not deemed “confidential” or “highly confidential.”
“Plaintiffs do not provide any authority to support the claim that disclosure in one case necessitates disclosure in another,” wrote Leete, keeping the order in place.
But where the Paternos did get a victory was with permission to proceed with their depositions of a slate of university presidents who served on the NCAA’s executive committee.
“During oral argument, defendants stated that they believed plaintiffs should depose others before the subjects of the subpoenas. It was proffered that this claim is based upon the inconvenience and expense involved with deposing the subjects of the subpoenas,” wrote the judge. “However, they offered no authority to support such a claim. Further, this court is unaware of any legal maxim, case law or statutory requirement that allows a defendant to dictate in what order a plaintiff may depose witnesses.”