Lawyers spar over Penn State frat deed
By Adam Clark, Daily Collegian
As Penn State attorney James Horne left the courtroom Monday after a hearing on the future of the former Phi Delta Theta fraternity house, his opponent called out to him.
"Hey, Horne," said James Bryant, the fraternity's attorney. "That was fun."
Though Judge David Grine did not make a decision on whether Penn State has the right to buy the century-old fraternity house, the two attorneys presented their positions on the rare "law against perpetuities," providing a packed courtroom with a half-hour of lengthy and often dense discussion on deed clauses.
Bryant said he expects a decision on the rule in about four weeks. Horne said it could come as soon as a matter of days or as long as a few months.
Bryant opened the hearing by discussing the property's 1905 deed, which provides the university an option to purchase the 240 N. Burrowes Road property if it is no longer used as a fraternity or chapter house by the Pennsylvania Theta Chapter of the Phi Delta Theta fraternity.
The attorney said this option is null and void under the rule against perpetuities because it was not exercised within "a lifetime plus 21 years" of the deed's signing. Former Penn State President George Atherton and former Penn State Board of Trustees President James Beaver, who both signed the deed, died in 1906 and 1914, respectively.
"We know George Atherton is dead because he's buried next to Schwab Auditorium," Bryant said. "We know James Beaver is dead because he's got a picture in the courthouse."
The rule, developed "way before Joe Paterno," was originally created in England before the American Revolution and was later established in America, Bryant said.
Horne responded with his own flair, calling the rule outdated and contrary to public policy.
"The last time I looked we are not in England, and I haven't seen a lot of feudal lords running around," Horne said. "The rule is no longer favored."
The rare legal standard has been eliminated or modified in almost every state, including a Pennsylvania legislative decision to abolish the rule for every interest created after Dec. 31, 2006, Horne said.
To disregard the rule because of this argument, Byrant said, would be like telling the last person to be executed in a newly death penalty-free state, "Sucks to be you."
Both attorneys referred to precedents set in previous legal cases, with Horne pointing out cases deciding in favor of the "rule against perpetuities" featured the sole right to purchase the property at any time.
Unlike these previous cases, Penn State did not have control to choose when the property's ownership was transferred until the fraternity was suspended by its parent organization, Horne said.
This is different, Bryant said. The university wasn't automatically given the house when the fraternity lapsed -- it only gained the right to buy it. This option violates the "rare as rabies" perpetuities rule, he said.
At the conclusion of the 30-minute hearing, Horne turned to the seated observers and joked he had never had so many people come to watch him perform.
The crowded courtroom included Phi Delta Theta alumni, current members of the unsanctioned fraternity and representatives from Penn State, such as Director of Fraternity and Sorority Life Roy Baker.
"Normally, it's in front of empty seats and it's very rarely such an interesting point of law," Bryant said. "That was as good as lawyering as you saw in the Bush-Gore election."
(C) 2008 Daily Collegian