Penn State is denying an attorney's claim that a rare legal rule will void the university's option to purchase the former Phi Delta Theta fraternity house.
The "rule against perpetuities" was not only deemed "contrary to public policy," but has been expressly eliminated by Pennsylvania legislature, Penn State attorney James Horne wrote in a response filed last Tuesday. The rule doesn't apply to the house's deed and its suggested application should be dismissed, Horne wrote.
Fraternity attorney James Bryant has said the rule against perpetuities renders the purchasing option null and void because it was not exercised within "a lifetime plus 21 years" from the 1905 signing of the deed of the house.
Earlier this month, Bryant contended that the rule -- "rare as rabies" -- eliminated a more than 100-year-old option for Penn State to purchase the house.
The 240 N. Burrowes Road property can be purchased by Penn State if not used by the Pennsylvania Theta Chapter of the Phi Delta Theta Fraternity, according to the deed. The fraternity had its charter suspended in 2007 after an alcohol violation and has since attempted to re-emerge as a local fraternity.
Despite the university's dismissal of the rule, Bryant said he believes the unsanctioned fraternity will prevail in court, he said.
"What did you expect them to say? 'Damn, we're going to lose. We're really screwed?' " he said of Penn State's response. "You didn't expect them to run the white flag up when they're caught with their pants down."
Although state legislation has changed the way the rule against perpetuities is interpreted, it will not affect the application of the rule in regard to this case, Bryant said.
"You take Penn State's answer, you take it to the Ag department, you put it on fields and you watch Penn State become one of the greatest crop-growing schools in the world because their argument is fertilizer," Bryant said. "High-priced fertilizer, but fertilizer."
Bryant introduced the rule against perpetuities Jan. 8 as a rebuttal to Penn State's November lawsuit, which asked the court to heed the deed and transfer the property to the university.
The university exercised its option to purchase the house in July because the students living in the house were no longer active members of the International Phi Delta Theta fraternity.
The offer of $900,000 -- the appraised value of the property -- was turned down, which prompted the university to take legal action, according to Penn State Live.
Judge David Grine ordered a Feb. 9 hearing, asking the university to defend its case.
"Obviously we disagree with the positions taken by the defendants," university spokesman Geoff Rushton said. "We stand by the assertions that we made in our court filings."
A ruling in the fraternity's favor would allow the members to do whatever they want with the property, subject only to local zoning laws, Bryant said.
But the students are just hoping to be left alone and operate as a fraternity, he said.
