The PA State University v. Alpha Upsilon ( 2023 )

J-A13039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
THE PENNSYLVANIA STATE : IN THE SUPERIOR COURT OF
UNIVERSITY : PENNSYLVANIA
:
:
v. :
:
:
ALPHA UPSILON OF THE FRATERNITY :
OF BETA THETA PI, INC. : No. 751 MDA 2022
:
Appellant :
Appeal from the Judgment Entered April 19, 2022
In the Court of Common Pleas of Centre County Civil Division at No(s):
18-4608
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 18, 2023
Appellant, Alpha Upsilon of the Fraternity of Beta Theta Pi, Inc., appeals
from the April 19, 2022 judgment entered in favor of Appellee, The
Pennsylvania State University (hereinafter “the University” or “Appellee”), in
this action for specific performance, following the March 23, 2022 denial of
Appellant’s motion for post-trial relief. After careful review, we affirm.
The trial court set forth the extensive findings of fact of this case as
follows:
Prior to 1888, fraternities were prohibited at the
University due to the belief that such societies
promoted an unwelcomed atmosphere of corruption
and mischief.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A13039-23
The prohibition against fraternities was lifted by the
University’s Board of Trustees in January of 1888,
upon the recommendation of University President
George Atherton (hereinafter “President Atherton”).
President Atherton’s recommendation was in response
to the University’s need to provide additional housing
options for its rapidly expanding undergraduate
student population.
During this period of time, fraternity houses at
institutions such as Harvard, Yale, and Princeton
provided undergraduate students with a place to eat
and sleep during their undergraduate studies.
Absent fraternity houses, the only on campus housing
available to the University’s undergraduate students
at that time was on the fourth and fifth floors of the
original Old Main building.
On September 1, 1894, the University deeded a parcel
of land to [Appellant] “for the express purpose of
erecting thereon a Fraternity or Chapter House for the
use of the members of the Alpha Upsilon Chapter of
the Fraternity of Beta Theta Pi at the Pennsylvania
State College.”
The Deed of 1894 further provided as follows:
AND WHEREAS the lot of ground herein described
is conveyed to the party of the second part for
the express purpose of erecting thereon a
fraternity or chapter house for the use of the
members of the Alpha Upsilon Chapter of the
Fraternity of Beta Theta Pi at the Pennsylvania
State College;
AND WHEREAS a building for the purposes herein
referred to is now being erected upon the said
land, it is distinctly understood and agreed that
the said building and the premises conveyed are
to be used solely and exclusively for the uses and
purposes of the said fraternity and of the
members thereof now and all times hereafter and
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if for any reason, the said premises should cease
to be used as a chapter or fraternity house. …,
then and in that event the [University] reserves
the right to purchase the said premises….
....
In 1919, H. Walton Mitchell (hereinafter “Mitchell”), a
founding member of Beta Theta Pi and chair of the
University’s Board of Trustees, asked J. Franklin
Shields (hereinafter “Shields”) to propose a series of
rules and regulations which would govern the transfer
of land to fraternities.
Shields was the first undergraduate member admitted
into the Active Chapter of Beta Theta Pi at the
University after the original nine (9) founding
members, and later became a member of the
University’s Board of Trustees.
The aforementioned rules and regulations written by
Shields were adopted by the Board in 1921. On such
rule was a requirement that the land transferred be
owned and maintained by an alumni corporation “for
the active chapter.”
The bylaws of [Appellant] state: “The Alumni
Corporation of the Alpha Upsilon Chapter of the Be[]ta
Theta Pi fraternity was established to maintain an
exceptional facility and environment which serves as
a home to active Chapter members and as a welcome
place to visit for alumni members.
Shields[] stated that these fraternity houses were a
great convenience in taking care of so many students”
and the University had “the right to make these deeds
for fraternity houses on campus because of the
incident benefit to the College and its purposes.”
On October 29, 1928, approximately seven (7) years
after the adoption of Shields’ proposed rules and
regulations by the University’s Board of Trustees, the
parcel of land previously transferred to [Appellant] in
1894 was re-conveyed back to the University.
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In connection with said re-conveyance, the University
paid [Appellant] $27,500.
That same day, the University conveyed a different
parcel of land to the House Corp, located at 220 North
Burrowes Road, State College, Pennsylvania
(hereinafter the “Property” or the “Beta House”). The
1928 Deed again stated the conveyance was “made
for the express purpose of the erection and perpetual
maintenance by the said party of the second part
hereto of a Fraternity or Chapter House for the use of
the members of the said Chapter of the said
Fraternity….”
The 1928 Deed from the University to [Appellant]
provides in part, as follows:
It is hereby expressly stipulated that this
conveyance is made for the express purpose
of the erection and perpetual maintenance
by the said party of the second part hereto
of a Fraternity or Chapter House for the use
of the members of the said Chapter of the
said Fraternity, and that the erection and
maintenance thereof is a condition of this
conveyance, and that this conveyance is also
made subject to the exceptions and reservations
next hereinafter set forth.
EXCEPTING AND RESERVING to the party of the
first part hereto, its successors and assigns, as
conditions of the estate and title hereby granted,
the following rights and privileges, viz:
FIRST.- The right at all times to require that at
least seventy five percent of all members of
[Appellant] be over twenty one years of age and
shall be non-active members of the said local
chapter of the said Fraternity, and that all officers
of the said corporation shall be over twenty one
years of age and shall be non- active members of
the said local chapter of the said Fraternity, which
said condition and requirement the said party of
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the second part hereto hereby agrees to maintain
as a permanent requirement of its constitution
and By-Laws.
***
THIRD.- The right to purchase the said lot and
the building or buildings to be erected thereon,
as follows, to wit: If for any reason the said
building or buildings should cease to be
used as a Chapter or Fraternity House, for
the use, benefit and behoof of the said party
of the second part hereto, or if the said
party of the second part should fail to meet
and comply with the other conditions and
stipulations herein set forth, then in any
such case and thereupon the said party of
the first part, for itself and its successors
and assigns, reserves the right to purchase
the said lot and the building or buildings to
be erected thereon at any time within five
years from and after the date hereof at two-
thirds of the actual cost of the building or
buildings to be erected upon the said lot, and
after the said period of five years the right to
purchase the same at a price which may be
agreed upon by the party of the first part and the
party of the second part hereto, their successors
and assigns, respectively; Provided,
nevertheless, that in case the said parties
cannot agree upon a price for the same, the
said purchase price shall be fixed and
determined by arbitrators mutually agreed
upon by the parties hereto, their successors
and assigns;…
Thereafter, [Appellant] built the Beta House for use
by the Alpha Upsilon Chapter of Beta Theta Pi at the
University (hereinafter the “Active Chapter”).
The primary use of the Beta House has been to
provide a residence for members of the Active Chapter
at the University.
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On February 2, 2017, the Active Chapter gathered at
the Beta House to initiate the spring 2017 pledge class
into the Active Chapter.
As a result of various alcohol-related hazing activities
occurring that evening, Associate Member
(hereinafter “Pledge”) of the Active Chapter, Timothy
Piazza (hereinafter “Piazza”), sustained injuries that
resulted in his death on February 4, 2017.
On February 5, 2017, the General Fraternity of Beta
Theta Pi (hereinafter the “National Fraternity” or
“Nationals”) required the Active Chapter to cease
operations pending an investigation into the events
surrounding Piazza’s death.
During the following 10-day period, Jeff Rundle
(hereinafter “Rundle”), Executive Director of the
National Fraternity, led an investigation into said
events.
Based on the aforementioned investigation, the
National Fraternity determined the Active Chapter had
violated the National’s risk management policy.
On February 15, 2017, the General Secretary of the
National Fraternity’s Board of Trustees determined
that the Charter of the Alpha Upsilon Chapter of Beta
Theta Pi at the University should be suspended and
the Active Chapter disbanded.
Under the Code of Beta Theta Pi:
a. (3) Definition of a Disbanded Chapter: A
disbanded chapter is one ( 1) the charter of
which has been suspended and (2) the
members of which have been ordered to
disband…. A disbanded chapter may not
continue to operate as a chapter of Beta
Theta Pi for any purpose and is not to be
counted as a chapter of the fraternity.
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The National Fraternity’s decision was made based on
its own independent judgment that disciplinary action
was necessary against the Active Chapter.
The decision related to housing and whether those
Active Chapter tenants would be entitled to continue
to live in the Beta House rested with [Appellant].
On February 21, 2017, [Appellant’s] Board
unanimously voted to require the Active Chapter
tenants vacate the Property on or before March 4,
2017.
The Charter of the Alpha Upsilon Chapter of Beta
Theta Pi remains indefinitely suspended up through
and including the present time. The Active Chapter
also remains disbanded.
The decision to suspend and disband the Active
Chapter does not foreclose the opportunity for the
future reestablishment of the Chapter at the
University.
In order to lift the suspension of the Charter, the
“Code” stipulates that the staff, at the direction of the
Board of Trustees of the National Fraternity, would
conduct an investigation into the fitness of the campus
and readiness of the alumni base to support the return
and reestablishment of a Chapter on campus. The
Fraternity staff would then recruit new members and
after approximately three (3) years of operation under
a suspended Charter or recolonization, the General
Convention would consider an application to extend
the Charter back to the group or reestablish a new
group.
The suspension and disbandment of the Active
Chapter was the most severe form of punishment the
Board of Trustees of the National Fraternity could take
on behalf of the National Fraternity.
During the summer of 2017, the Board of Trustees of
the National Fraternity recommended to the General
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Convention of Beta Theta Pi that the Charter of the
Alpha Upsilon Chapter of Beta Theta Pi be revoked.
The vote was 76 to 30 in favor of revoking the Charter
of the Alpha Upsilon Chapter of Beta Theta Pi.
However, due to a rule requiring a super majority, the
vote failed by four (4) votes.
The University also conducted an investigation into
the events surrounding Piazza’s death. The
University’s investigation included a review of relevant
portions of the video evidence from the Beta House on
February 2, and 3, 2017, meetings with
representatives from the National Fraternity and
[Appellant], meetings with representatives of State
College Borough, meetings with law enforcement, and
interviews with approximately forty (40) student
witnesses.
On or about February 17, 2017, the University issued
a statement announcing its decision to revoke the
recognition of the Active Chapter of Beta Theta Pi as
a recognized student organization for a period of five
(5) years. A final decision as to the length of the
revocation was to be made upon completion of the
University’s internal investigation.
The aforementioned investigation confirmed
numerous alcohol-related hazing violations that took
place in connection with pledge activities at the Beta
House and confirmed such activities had been ongoing
at the Beta House since at least 2014.
Since the members of the Active Chapter were evicted
from the Beta House by [Appellant] in March 2017,
the Beta House has not been used as a home for
Active Chapter members.
On March 30, 2017, the University permanently
revoked recognition of the Active Chapter as a
recognized student organization.
Since March 2017, the Beta House has been used
occasionally by a few members of [Appellant],
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typically football weekends in the fall or during the
weekend of the University’s annual Blue-White
football scrimmage in the spring.
[Appellant] has no plans to use the Beta House in the
future as anything other than as a place for their
“alumni fraternity.”
Additionally, the events surrounding Piazza’s death,
as well as previous instances of illegal actions by
Active Chapter members, led to the filing of criminal
charges against numerous Active Chapter members.
Prior to January 7, 2019, the bylaws of [Appellant],
provided in Article III, Section 1, entitled Members
and Voting Rights: “All persons who have been
initiated or who shall be initiated as full members of
the Alpha Upsilon Chapter of Beta Theta Pi shall be
members of the Corporation provided they are no
longer Active Chapter members. Each member of the
Corporation shall have one vote.”
The bylaws were amended to provide that only dues-
paying alumni are eligible to be members of
[Appellant] and those who do not pay the annual dues
have no [Appellant] membership nor any privileges
that go with it.
Out of approximately 825 Alumni members, 325 have
paid the annual dues.
Membership in the House Corporation has been closed
and no new members will be admitted.
In late 2017 or early 2018, representatives of
[Appellant] approached the University to determine
whether the University would be interested in
purchasing the Beta House.
The University toured the Beta House and secured an
appraisal of the property.
On March 29, 2018, counsel for [Appellant] wrote to
the University’s Senior Vice President for Finance &
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Business/Treasurer and again expressed [Appellant’s]
interest in selling the Beta House to the University.
On April 26, 2018, the University, through its counsel,
expressed its interest in purchasing the Beta House
but indicated a preference to include Don Abbey
(hereinafter “Abbey”) in any such discussions at that
time.
On June 30, 2018, the Board of Directors of
[Appellant] met and voted to recommend to the
membership a sale of the premises, not to the
University, but to Abbey individually.
A special meeting to consider the Board’s
recommendation was set for July 20, 2018; however,
a quorum was not present.
On August 10, 2018, a second special meeting of the
membership of [Appellant] was held, at which time
the proposal to sell the property to Abbey failed a
membership vote.
While the proposal to sell the property to Abbey was
pending, the University separately offered to purchase
the property from Abbey if [Appellant] membership
approved a sale to him.
After the proposed sale to Abbey was rejected
[Appellant] became unwilling to consider a sale of the
Beta House to the University.
The University then gave notice of its intent, pursuant
to the 1928 Deed, to purchase the property.
Trial court opinion and verdict, 12/21/21 at 2-12 (citations and numeration
omitted; emphasis in original).
The relevant procedural history of this case, as gleaned from the
certified record, is as follows: On November 19, 2018, the University filed a
complaint against Appellant for specific performance of the provision in the
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1928 Deed granting the University the right to repurchase the property. On
January 15, 2019, Appellant filed preliminary objections to the University’s
complaint. The trial court held oral argument on this matter on February 25,
2019. Thereafter, on March 22, 2019, the trial court overruled Appellant’s
preliminary objections. See trial court opinion and order, 3/22/19 at 2-6.
Following a COVID-related continuance, Appellant filed a motion for
summary judgment and a brief in support of said motion on June 1, 2021.
The trial court denied Appellant’s motion for summary judgment on August
20, 2021. On September 14, 2021, Appellant filed a motion in limine seeking
to preclude parol evidence. The trial court held oral argument on this matter
on October 4, 2021, at the conclusion of which it filed an opinion and order
denying said motion. See trial court opinion and order, 10/11/21 at 2-4.
The trial court held a non-jury trial from October 18 to October 20, 2021.
Thereafter, on December 21, 2021, the trial court entered a verdict in favor
of the University and ordered that “ownership of the subject premises shall be
transferred back to [the University].” Trial court opinion and verdict,
12/21/21 at 19. The trial court further ordered that once the verdict became
final, the parties would have the opportunity to appraise “the fair market value
of the property” and negotiate a transfer price, and if the parties could not
agree on one, the price would be set by arbitrators selected by the parties.
Id.
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On January 3, 2022, Appellant filed a motion for post-trial relief, which
was denied by the trial court on March 23, 2022. Thereafter, on April 19,
2022, the Centre County Prothonotary entered judgment on the verdict in
favor of the University. This timely appeal followed on April 21, 2022.
On April 29, 2022, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal, in accordance with Pa.R.A.P.
1925(b), within 21 days. Following an extension, Appellant filed a timely Rule
1925(b) statement on September 6, 2022. On September 7, 2022, the trial
court filed a one-page Rule 1925(a) opinion indicating that it was relying on
its reasoning set forth in its prior December 21, 2021 opinion.
Appellant raises the following issues for our review:
1. Whether the deed provision in question create
an option to purchase the Property or a fee
simple subject to a condition subsequent?
2. If the deed provision created an option to
purchase, is it subject to and violative of the
Rule against Perpetuities; and also
unenforceable for failure to fix a mechanism for
determining fair market value?
3. Whether extrinsic evidence was properly
considered in construing deed?
4. Whether [Appellant] ever ceased using the
Property as a Chapter or Fraternity House?
Appellant’s brief at 4.
Our scope and standard of review of a non-jury verdict is well settled:
Our appellate role in cases arising from non-jury trial
verdicts is to determine whether the findings of the
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trial court are supported by competent evidence and
whether the trial court committed error in any
application of the law. The findings of fact of the trial
judge must be given the same weight and effect on
appeal as the verdict of a jury. We consider the
evidence in a light most favorable to the verdict
winner. We will reverse the trial court only if its
findings of fact are not supported by competent
evidence in the record or if its findings are premised
on an error of law. However, where the issue concerns
a question of law, our scope of review is plenary.
The trial court’s conclusions of law on appeal
originating from a non-jury trial are not binding on an
appellate court because it is the appellate court’s duty
to determine if the trial court correctly applied the law
to the facts of the case.
Bank of New York Mellon v. Bach, 159 A.3d 16, 19 (Pa.Super. 2017)
(citation omitted), appeal denied, 170 A.3d 1019 (Pa. 2017).
Instantly, the crux of Appellant’s argument on appeal concerns whether
the trial court misinterpreted the language of the 1928 deed by failing to
define the nature of the interest conveyed as an option to repurchase the
property, rather than a fee simple subject to a condition subsequent.
Appellant’s brief at 16-25. Appellant avers that this deed option should have
been found void and unenforceable under the Rule against Perpetuities. Id.
at 26-29. Appellant further contends that the trial court improperly considered
extrinsic evidence in concluding, inter alia, that a “fraternity” requires
undergraduate residents; Appellant maintains that this decision “[wa]s not
only unsupported by, but actually contradicts, the language of the deed.” Id.
at 15, 31-39.
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In situations involving the interpretation of a deed, this Court has
recognized the following:
[A] court’s primary object must be to ascertain and
effectuate what the parties themselves intended. The
traditional rules of construction to determine that
intention involve the following principles. First, the
nature and quantity of the interest conveyed must be
ascertained from the deed itself and cannot be orally
shown in the absence of fraud, accident or mistake.
We seek to ascertain not what the parties may have
intended by the language but what is the meaning of
the words they used. Effect must be given to all the
language of the instrument, and no part shall be
rejected if it can be given a meaning. If a doubt arises
concerning the interpretation of the instrument, it will
be resolved against the party who prepared it…. To
ascertain the intention of the parties, the language of
a deed should be interpreted in the light of the subject
matter, the apparent object or purpose of the parties
and the conditions existing when it was executed….
In the absence of fraud, accident or mistake, the
nature and quantity of the real estate interest
conveyed must be ascertained from the deed itself
and cannot be shown by parol. When the language of
the deed is clear and free from ambiguity, the intent
of the parties must be determined from the language
of the deed. With respect to unambiguous deeds, a
court must ascertain what is the meaning of the words
used, not what may have been intended by the parties
as shown by parol.
Wright v. Misty Mt. Farm, LLC, 125 A.3d 814, 818-819 (Pa.Super. 2015)
(citations omitted), appeal denied, 140 A.3d 14 (Pa. 2016).
Following a thorough review of the record, including the briefs of the
parties, the applicable law, and the well-reasoned opinion of the trial court, it
is our determination that Appellant’s claims on appeal warrant no relief. In
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its comprehensive 18-page opinion, the trial court addressed each of
Appellant’s allegations of error and concluded that they are without merit. We
find that the trial court’s conclusions are supported by competent evidence
and are clearly free of legal error.
Specifically, we agree with the trial court’s determination that the
applicable rules of construction support a finding that the parties intended the
1928 Deed to create a fee simple subject to a condition subsequent, which is
not subject to the Rule against Perpetuities. See trial court opinion and
verdict, 12/21/21 at 14-16. We also discern no error on the part of the trial
court in concluding that the University’s right to purchase the property was
triggered on account of the fact that the property was no longer functioning
as a “fraternity house.” Id. at 17. The trial court stated as follows:
[T]he Court concludes the plain language of the 1928
Deed, when read in its entirety, contemplates that the
conveyance to [Appellant] by the University was for
the express purpose of the construction and
maintenance of a Chapter or Fraternity House for use
by Active Chapter Members of Beta Theta Pi. In order
to determine whether [Appellant] is in breach of the
1928 Deed, thereby triggering the University’s right
to purchase, the Court looks to the current use of the
Property. As discussed, the Charter of Beta Theta Pi
at the University was suspended and the Active
Chapter of Beta Theta Pi at the University was
disbanded in response to the death of Piazza in
February of 2017. On February 21, 2017,
[Appellant’s] Board held a unanimous vote to require
the Active Chapter vacate the Property on or before
March 4, 2017. Since that time, the Property has not
been used as a home for Active Chapter members.
Currently, the only individual residing in the Property
is a son of a dues paying [Appellant] member. The
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individual has no personal affiliation with Beta Theta
Pi. In addition to this individual, dues paying
members of [Appellant] intermittently use the
Property for Board meetings, or as temporary
accommodations — akin to hotel accommodations —
during home football weekends and other special
events. It is clear to this Court that such use does not
constitute use as a Fraternity or Chapter House under
the 1928 Deed. Accordingly, the Court finds the
University’s right to purchase the Property has been
triggered.
Although it appears to this Court that [Appellant]
desires something more happen with the Property,
such as recolonization, such a desire is not enough to
overcome the fact that the condition subsequent has
occurred. [Appellant] is a non-profit organization. It
is not a fraternity. It cannot control the
reestablishment of the Active Chapter at the
University nor can it institute recolonization of a new
chapter at the University. Such a decision remains at
the discretion of the General Fraternity and no
evidence was presented to the Court indicating any
intention on behalf of the General Fraternity to change
or alter the status of the Alpha Upsilon Chapter at the
University since the Active Chapter was vacated in
March of 2017.
Id. at 17-18.
Upon our own independent review, we find that the record supports the
trial court’s findings. Accordingly, we adopt the analysis set forth in the
comprehensive December 21, 2021 opinion of the Honorable Brian K. Marshall
as our own for purposes of this appellate review. The trial court’s April 19,
2022 judgment entered in favor of the University is thereby affirmed.
Judgment affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/18/2023
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Circulated 09/27/2023 12:00 PM
IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
CIVIL ACTION — LAW
THE PENNSYLVANIA STATE
UNIVERSITY,
Plaintiff,
V. No, 2018-4608
THE ALPHA UPSILON CHAPTER
OF THE FRATERNITY OF BETA
THETA PI, INC.,
Defendants.
Attorney for Plaintiff., Jaynes NL XJorne, Esquire/
Alexander R, Bilus, Esquire/
Matthew J Smith, Esquire
Attorney for Defendant; tylark W Bernlohr, Esquire/
Alichael P. Leahey, Esquire/
Daniel Michelmore, Esquire
OPINION AND VERDICT
Marshall, J.
On November 11, 2018, The Pennsylvania State University (hereinafter "Plaintiff' or the
"University") commenced this action by filing aComplaint for Specific Performance (hereinafter
the " Complaint") against The Alpha Upsilon Chapter of the Fraternity of Beta Theta Pi, Inc,
(hereinafter "Defendants" or the "House Corp,"), In response to the Complaint, the House Corp.
filed Preliminary Objections on January 15, 2019 in the Nature of aDemurrer and aMotion to
Strike Scandalous/Impertinent Matter which were overruled by this Court on March 22, 20 t9. On
July 9, 2019, the House Corp, filed an Answer and New Matter to the University's Complaint, The
University filed an Answer to the House Corp.'s New Matter on July 26, 2019, On June 16, 2020,
the University and the House Corp, filed aMotion to Continue Trial Date and Establish New Case
00 ❑ RD ❑ S
Management Deadlines due to the effects of the Coronavirus pandemic which Motion was granted
by this Court on June 19, 2020.
On June 1, 2021, the House Corp. filed aMotion for Summary Judgment which was denied
by this Court on August 20, 2021, On September 14, 2021, the House Corp. filed aMotion in
Limine, Said Motion was denied by this Court on October 11, 2021. On September 22, 2021, the
House Corp. filed aMotion for aBench View which was subsequently granted by the Court on
October 6, 2021 for the limited purpose of pointing out relevant physical features of the premises
to assist the Court in understanding the testimony and evidence to be presented at trial. Said bench
view occurred on October 18, 2021 immediately prior to the commencement of the trial, The Court
held aNon-Jury Trial in this matter from October 18, 2021 until October 20, 2021. Both parties
submitted Proposed Findings of Facts and Conclusions of Law on November 22, 2021, After
review of the filings, the arguments of the parties, and the applicable law, the Court is prepared to
render averdict in this matter.
FINDINGS OF FACT
1. Prior to 1888, fraternities were prohibited at the University due to the belief that such societies
promoted an unwelcomed atmosphere of corruption and mischief. [PSU 4-0003; PSU 54;
Esposito, Vol. 2, N.T. 76-86; 99-100],
2. The prohibition against fraternities was lifted by the University's Board of Trustees in January
of 1888, upon the recommendation of University President George Atherton (hereinafter
"President Atherton"). [PSU 4-0003; PSU 54; Esposito, Vol. 2, N.T. 76-86; 98-101].
3, President Atherton's recommendation was in response to the University's need to provide
additional housing options for its rapidly expanding undergraduate student population. [
Id.],
2
4. During this period of time, fraternity houses at institutions such as Harvard, Yale, and
Princeton provided undergraduate students with a place to eat and sleep during their
undergraduate studies. [Esposito, Vol. 2, N.T. 82-84].
S. Absent fraternity houses, the only on campus housing available to the University's
undergraduate students at that time was on the fourth and fifth floors of the original Old Main
building. [PSU 4-0003; PSU 54; Esposito, Vol. 2, N.T. 78-79].
6. On September 1, 1894, the University deeded aparcel of land to the House Corp. " for the
express purpose of erecting thereon aFraternity or Chapter House for the use of the members
of the Alpha Upsilon Chapter of the Fraternity of Beta Theta Pi at the Pennsylvania State
College," [PSU 7; See also PSU 5, 0015-0019].
7. The Deed of 1894 further provided as follows;
AND WHEREAS the lot of ground herein described is conveyed to the
party of the second part for the express purpose of erecting thereon a
fraternity or chapter house for the use of the members of the Alpha Upsilon
Chapter of the Fraternity of Beta Theta Pi at the Pennsylvania State College;
AND WHEREAS abuilding for the purposes herein referred to is now
being erected upon the said land, it is distinctly understood and agreed that
the said building and the premises conveyed are to be used solely and
exclusively for the uses and purposes of the said fraternity and of the
members thereof now and all times hereafter and if for any reason, the said
premises should cease to be used as achapter or fraternity house.—, then
and in that event the [University] reserves the right to purchase the said
promises...
[PSU 7, 0003; PSU 5, 0017].
8. In addition to the parcel deeded to the House Corp., the University also deeded five (5) other
parcels of land to local chapters of other national fraternities for the express purpose of
constructing fraternity houses. [PSU 10-15; PSU 4-0004, 0011-0014; Esposito, Vol. 2, N.T.
81, 93-98].
3
9. These five (5) other conveyances were as follows;
a. The University to Phi Delta Theta, 1905;
b. The University to Alpha Chi, 1905;
c. The University to Phi Gamma Delta, 1915;
d. The University to Alpha Zeta, 1915; and
e. The University to Sigma Nu, 1925.
10. In 1919, H, Walton Mitchell (hereinafter "Mitchell"), afounding member of Beta Theta Pi and
chair of the University's Board of Trustees, asked J. Franklin Shields (hereinafter " Shields")
to propose aseries of rules and regulations which would govern the transfer of land to
fraternities. [PSU 5, 0126-1340; Esposito, Vol. 2, N.T. 74-84].
11. Shields was the first undergraduate member admitted into the Active Chapter of Beta Theta Pi
at the University after the original nine (9) founding members, and later became amember of
the University's Board of Trustees. [
1d.]
12. The aforementioned rules and regulations written by Shields were adopted by the Board in
1921. One such rule was arequirement that the land transferred be owned and maintained by
an alumni corporation "for the active chapter," [PSU 5, 0051; Esposito, Vol. 2, N.T. 80].
13. The bylaws of the House Corp. state; "The Alumni Corporation of the Alpha Upsilon Chapter
of the Berta Theta Pi fraternity was established to maintain an exceptional facility and
environment which serves as ahome to active Chapter members and as awelcome place to
visit for alumni members." [Cassidy Vol. 2, N.T. 140-141; De£ HHH].
14. Shields' stated that these fraternity houses were "agreat convenience in taking care of so many
students" and the University had "the right to make these deeds for fraternity houses on campus
4
because of the incident benefit to the College and its purposes." [PSU 5, 0126-1340; Esposito,
Vol. 2, N.T. 74-84].
15. On October 29, 1928, approximately seven (7) years after the adoption of Shields' proposed
rules and regulations by the University's Board of Trustees, the parcel of land previously
transferred to the House Corp. in 1894 was re- conveyed back to the University. [PSU 8].
16. In connection with said re-conveyance, the University paid the House Corp. $27, 500. [PSU 5,
0120-123; Esposito, Vol. 2, N.T. 89-90].
17. That same day, the University conveyed adifferent parcel of land to the House Corp, located
at 220 North BUTPOWeS Road, State College, Pennsylvania (hereinafter the "Property" or the
"Beta House"), The 1928 Deed again stated the conveyance was "made for the express purpose
of the erection and perpetual maintenance by the said party of the second part hereto of a
Fraternity or Chapter House for the use of the members of the said Chapter of the said
Fraternity...." [PSU 9, 0002].
18. The 1928 Deed from the University to the House Corp, provides in part, as follows:
It is hereby expressly stipulated that this conveyance is made for the
express purpose of the erection and perpetual maintenance by the said
party of the second part hereto of aFraternity or Chapter House for
the use of the members of the said Chapter of the said Fraternity, and
that the erection and maintenance thereof is acondition of this conveyance,
and that this conveyance is also made subject to the exceptions and
reservations next hereinafter set forth.
EXCEPTING AND RESERVING to the party of the first part hereto, its
successors and assigns, as conditions of the estate and title hereby granted,
the following rights and privileges, viz:
FIRST.- The right at all times to require that at least seventy five percent of
all members of the [House Corp.] be over twenty one years of age and shall
be non-active members of the said local chapter of the said Fraternity, and
that all officers of the said corporation shall be over twenty one years of age
and shall be non-active members of the said local chapter of the said
Fraternity, which said condition and requirement the said party of the
5
second part hereto hereby agrees to maintain as apermanent requirement of
its constitution and By-Laws.
THIRD.- The right to purchase the said lot and the building or buildings to
be erected thereon, as follows, to wit; If for any reason the said building
or buildings should cease to be used as aChapter or Fraternity House,
for the use, benefit and behoof of the said party of the second part
hereto, or if the said party of the second part should fail to meet and
comply with the other conditions and stipulations herein set forth, then
in any such case and thereupon the said party of the first part, for itself
and its successors and assigns, reserves the right to purchase the said
lot and the building or buildings to be erected thereon at any time within
five years from and after the date hereof at two-thirds of the actual cost of
the building or buildings to be erected upon the said lot, and after the said
period of five years the right to purchase the same at aprice which may be
agreed upon by the party of the first part and the party of the second part
hereto, their successors and assigns, respectively; Provided, nevertheless,
that in case the said parties cannot agree upon aprice for the same, the
said purchase price shall be fixed and determined by arbitrators
mutually agreed upon by the parties hereto, their successors and
assigns;...
[PSU 9, 0002-0003 ](emphasis added).
19. Thereafter, the House Corp. built the Beta House for use by the Alpha Upsilon Chapter of Beta
Theta Pi at the University (hereinafter the "Active Chapter"),
20. The primary use of the Beta House has been to provide aresidence for members of the Active
Chapter at the University. [Cassidy, Vol. 2, N.T. 141-142].
21. On February 2, 2017, the Active Chapter gathered at the Beta House to initiate the spring 2017
pledge class into the Active Chapter. [PSU 29, 30].
22. As a result of various alcohol-related hazing activities occurring that evening, Associate
Member (hereinafter "Pledge") of the Active Chapter, Timothy Piazza (hereinafter "Piazza"),
sustained injuries that resulted in his death on February 4, 2017. [
Id.].
23. On February 5, 2017, the General Fraternity of Beta Theta Pi (hereinafter the "National
Fraternity" or "Nationals") required the Active Chapter to cease operations pending an
6
investigation into the events surrounding Piazza's death, [PSU 2, Rundle Depo., N.T. 58, 70-
71; PSU 2, 1, PSU 47; Cassidy Vol. 2, N.T. 122-123],
24. During the following 10-day period, Jeff Rundle (hereinafter "Rundle"), Executive Director of
the National Fraternity, led an investigation into said events. [PSU 2, Rundle Depo., N.T. 49-
60],
25. Based on the aforementioned investigation, the National Fraternity determined the Active
Chapter had violated the National's risk management policy. [PSU 2, Rundle Dep,, N.T. 57-
58, 80; PSU 2.5-2.9, 2.13-2.14].
26. On February 15, 2017, the General Secretary of the National Fraternity's Board of Trustees
determined that the Charter of the Alpha Upsilon Chapter of Beta Theta Pi at the University
should be suspended and the Active Chapter disbanded. [PSU 2.2, 2.3-2.9; PSU 2, Rundle
Depo., N.T. 59-60].
27. Under the Code of Beta Theta Pi;
a. (3) Definition of aDisbanded Chapter; A disbanded chapter is one ( 1) the charter of
which has been suspended and (2) the members of which have been ordered to
disband.... A disbanded chapter may not continue to operate as achapter of Beta Theta
Pi for any purpose and is not to be counted as achapter of the fraternity.
[PSU 2.2, 0007, 0009; PSU 2.7].
28, The National Fraternity's decision was made based on its own independent judgment that
disciplinary action was necessary against the Active Chapter. [PSU 2.2., 00006; PSU 2.8].
29. The decision related to housing and whether those Active Chapter tenants would be entitled to
continue to live in the Beta House rested with the House Corp. [PSU 2, Rundle Dep., N.T. 28].
7
30. On February 21, 2017, the House Corp,'s Board unanimously voted to require the Active
Chapter tenants vacate the Property on or before March 4, 2017. [Shaha, Vol. 3, N.T. 133-
135].
31. The Charter of the Alpha Upsilon Chapter of Beta Theta Pi remains indefinitely suspended up
through and including the present time. The Active Chapter also remains disbanded. [PSU 2,
Rundle Depo., N.T. 36].
32, The decision to suspend and disband the Active Chapter does not foreclose the opportunity for
the future reestablishment of the Chapter at the University, [PSU 2, Rundle Dep,, N.T. 30].
33, In order to lift the suspension of the Charter, the "Code" stipulates that the staff, at the direction
of the Board of Trustees of the National Fraternity, would conduct an investigation into the
fitness of the campus and readiness of the alumni base to support the return and reestablishment
of a Chapter on campus. The Fraternity staff would then recruit new members and after
approximately three (3) years of operation under asuspended Charter or recolonization, the
General Convention would consider an application to extend the Charter back to the group or
reestablish anew group. [PSU 2, Rundle Dep., N.T. 37].
34. The suspension and disbandment of the Active Chapter was the most severe form of
punishment the Board of Trustees of the National Fraternity could take on behalf of the
National Fraternity. [PSU 2, Rundle Depo,, N.T. 60].
35. During the summer of 2017, the Board of Trustees of the National Fraternity recommended to
the General Convention of Beta Theta Pi that the Charter of the Alpha Upsilon Chapter of Beta
Theta Pi be revoked. [PSU 2, Rundle Depo., N.T. 60-63; PSU 2-14].
8
36. The vote was 76 to 30 in favor of revolting the Charter of the Alpha Upsilon Chapter of Beta
Theta Pi. However, due to arule requiring asuper majority, the vote failed by four (4) votes.
[Id. ].
37. The University also conducted an investigation into the events surrounding Piazza's death.
[See, testimony of D. Sims, S. Peters, D. Shaba at Vol. 1, N.T. 41-146; PSU 27, 29, 30].
38. The University's investigation included areview of relevant portions of the video evidence
from the Beta House on February 2, and 3, 2017, meetings with representatives from the
National Fraternity and the House Corp., meetings with representatives of State College
Borough, meetings with law enforcement, and interviews with approximately folly (40)
student witnesses. [See, testimony of D. Sims, S. Peters, D. Shaha at Vol. 1, N.T. 41-146; PSU
27, 29, 30].
39. On or about February 17, 2017, the University issued astatement announcing its decision to
revolve the recognition of the Active Chapter of Beta Theta Pi as a recognized student
organization or aperiod of five (5) years. A final decision as to the length of the revocation
was to be made upon completion of the University's internal investigation. [PSU 28, Sims,
Vol. 1, N.T. 67 -68].
40. The aforementioned investigation confirmed numerous alcohol-related hazing violations that
tools place in connection with pledge activities at the Beta House and confirmed such activities
had been ongoing at the Beta House since at least 2014. [PSU 29, 30].
41. Since the members of the Active Chapter were evicted from the Beta House by the House
Corp, in March 2017, the Beta House has not been used as ahome for Active Chapter members.
[Cassidy, Vol. 2, N.T. 141; Def.'s Resp, to Pl.'s Req. for Admis. No. 8].
9
42, On March 30, 2017, the University permanently revoked recognition of the Active Chapter as
arecognized student organization, [Sims, Vol. N,T, 46-47],
43, Since March 2017, the Beta House has been used occasionally by afew members of the House
Corp,, typically football weekends in the fall or during the weekend of the University's annual
Blue-White football scrimmage in the spring, [PSU 40; Cassidy, Vol, 2, N.T. 132-140],
44, The House Corp, has no plans to use the Beta House in the future as anything other than as a
place for their "alumni fraternity," [Palmer, Vol, 2, N,T, 183-184],
45, Additionally, the events surrounding Piazza's death, as well as previous instances of illegal
actions by Active Chapter members, led to the filing of criminal charges against numerous
Active Chapter members, [See e,g,, Centre County Court of Common Pleas Criminal Docket
Nos,; 17-1349,17-1379, 17-1385, 17-1389, 17-1390, 17-913, 17-2086, 18-0818, 18-1151, 18-
1535, 18-1535, 18-1540, 18-0783, 18-0784, 18-0884, 19-1391, 19-1418, 19-1558, 19-1560],
46, Prior to January 7, 2019, the bylaws of the House Corp, provided in Article III, Section 1,
entitled Members and Voting Rights; "All persons who have been initiated or who shall be
initiated as full members of the Alpha Upsilon Chapter of Beta Theta Pi shall be members of
the Corporation provided they are no longer Active Chapter members, Each member of the
Corporation shall have one vote," [Def, HHH],
47, The bylaws were amended to provide that only dues-paying alumni are eligible to be members
of the House Corp, and those who do not pay the annual dues have no House Corp, membership
nor any privileges that go with it, [PSU 19, 20],
48, Out of approximately 825 Alumni members, 325 have paid the annual dues, [PSU 20; Palmer,
Vol, 2, N,T, 177-183; Aceto, Vol. 3, N,T, 115-116],
10
49, Membership in the House Corporation has been closed and no new members will be admitted,
[Id, ] .
50, In late 2017 or early 2018, representatives of the House Corp, approached the University to
determine whether the University would be interested in purchasing the Beta House, [PSU 32,
Gray, Vol. 1, N.T. 150-154],
51. The University toured the Beta House and secured an appraisal of the property, [PSU 32, 33;
Gray Vol, 1, N.T. 152-158],
52, On March 29, 2018, counsel for House Corp, wrote to the University's Senior Vice President
for Finance & Business/Treasurer and again expressed the House Corp,'s interest in selling the
Beta House to the University. [PSU 35, Gray, Vol, 1, N.T. 159-160].
53, On April 26, 2018, the University, through its counsel, expressed its interest in purchasing the
Beta House but indicated apreference to include Don Abbey (hereinafter "Abbey") in any such
discussions at that time, [PSU 36].
54, On June 30, 2018, the Board of Directors of the House Corp, met and voted to recommend to
the membership asale of the premises, not to the University, but to Abbey individually, [PSU
37; Cassidy, Vol, 2, N,T, 150],
55. A special meeting to consider the Board's recommendation was set for July 20, 2018; however,
aquorum was not present, [PSU 38; Cassidy, Vol, 2, N.T. 153],
56, On August 10, 2018, asecond special meeting of the membership of the House Corp, was held,
at which time the proposal to sell the property to Abbey failed amembership vote, [PSU 38;
Cassidy, Vol, 2, N.T. 153].
11
57, While the proposal to sell the property to Abbey was pending, the University separately offered
to purchase the property from Abbey if the House Corp, membership approved asale to him,
[Gray, Vol, 1, N.T. 162-164; Barron, Vol. 2, N.T. 16-17].
58, After the proposed sale to Abbey was rejected, the House Corp, became unwilling to consider
asale of the Beta House to the University. [PSU 39; Gray, Vol. 1, N.T. 164].
59, The University then gave notice of its intent, pursuant to the 1928 Deed, to purchase the
property, [1d],
CONCLUSIONS OF LAW
1, "The same principles that apply to the interpretation of acontract apply to the interpretation
of adeed," Starling v, Lake Alfeade Prop, Owners Ass'n, Ina, 640 Pa, 126, 148, 162 A.3d
327, 341 (Pa, 2017) (citing New Charter Coal Co. v. McKee, 411 Pa. 307, 191 A.2d 830, 834
(1963)).
2. When interpreting adeed;
[A] court's primary object must be to ascertain and effectuate what the parties
themselves intended. The traditional rules of construction to determine that
intention involve the following principles, First, the nature and quantity of
the interest conveyed must be ascertained from the deed itself and cannot be
orally shown in the absence of fraud, accident or mistake. We seek to
ascertain not what the parties may have intended by the language but what is
the meaning of the words they used, Effect must be given to all the language
of the instrument, and no part shall be rejected if it can be given ameaning,
If adoubt arises concerning the interpretation of the instrument, it will be
resolved against the party who prepared it, To ascertain the intention of the
parties, the language of adeed should be interpreted in the light of the subject
matter, the apparent object or purpose of the parties, and the conditions
existing when it was executed,
Ralston v. Ralston, 55 A.3d 726, 742 (Pa, Super. 2012) (citing Consolidation Coal Co, v.
White, 875 A.2d 318, 326-27 (Pa. Super, 2005)),
12
3. "Where the language of the Deed is clear and unambiguous, the intent of the grantees must be
gleaned solely from the deed's language," Estate of Reigle, 438 Pa. Super. 361, 363, 652 A.2d
853, 854 (Pa. Super. 1995)(citations omitted), "as gathered from areading of the entire deed,"
Empire Coal Min. & Dev,, Inc, v, Dep't of Envtl, Res,, 678 A.2d 1218, 1222 (Pa. Cmwlth.
1996).
4. "If the deed is ambiguous, then all of the attending circumstances existing at the time of the
execution of the instrument should be considered to aid in determining the apparent object of
the parties." Stewart v, Chernicky, 439 Pa, 43, 266 A.2d 259, 263 ( 1970); accord Clancy v,
Recker, 455 Pa, 452, 316 A.2d 898, 902 ( 1974).
5. Whether adeed is ambiguous is aquestion of law for the court. Pa. Elec, Co, v, Waltnian,
670 A.2d 1165, 1169 (Pa. Super. 1995),
6. When an ambiguity exists, "parol evidence is admissible to explain or clarify or resolve the
ambiguity, irrespective of whether the ambiguity is patent, created by the language of the
instrument, or latent, created by extrinsic or collateral circumstances." Miller v. Poole, 45 A.3d
1143, 1146 (Pa. Super. 2012),
7. Every contract in Pennsylvania imposes on each party aduty of good faith and fair dealing in
its performance and its enforcement of contractual terms. Kaplan v. Cablevision of Pa., Inc,,
448 Pa. Super, 306, 671 A.2d 716, 722 ( 1996), appeal denied, 546 Pa. 645, 683 A.2d 883(1996), citing, inter alia, Somers a Sorners, 418 Pa. Super. 131, 613 A.2d 1211, 1213 ( 1992),
appeal denied, 533 Pa. 652, 624 A.2d 111 ( 1993).
8. Good faith has been defined as "honesty in fact in the conduct or transaction concerned,"
Kaplan, 671 A.2d 111 ( 1993).
13
9. "A fee simple subject to acondition subsequent is created where the deed provides that upon
the happening of some specified event, the grantor has the right and power to terminate the
estate." Emrickv. Bethlehem Tp,, 485 A.2d 736, 739 (Pa, 1984).
10. A fee simple subject to acondition subsequent is not subject to the Rule Against Perpetuities.
Id
11. A Fraternity House or Chapter House is commonly accepted and understood to be aplace
where undergraduate members of afraternity reside while attending acollege or university.
Delta Psi Fraternity v, City of Burlington, 969 A.2d 54, 57 (Vt. 2008)([T]he term "Fraternity
house," which is not defined by statute, could nevertheless be construed to impose aresidential
use requirement; many common definitions of "house" imply use as aresidence); Muhlenberg
College Appeal, 44 Pa. D. & C.2d 579, 591 (Lehigh Cty. Nov. 12, 1966) (
If dormitories on a
college campus are within the scope of the tax exemption statute, and they clearly are, it
becomes difficult to see why fraternity houses, which are primarily aform of dormitory are
not also within the scope of the exemption statute.); see also, Ballentine's Law Dictionary,
which defines fraternity as an organization of college students, usually providing living
quarters for the members).
DISCUSSION
In its Complaint for Specific Performance, the University asserts the condition subsequent
provided for in the 1928 Deed has occurred, thereby triggering the University's right to purchase.
In order to determine whether the condition subsequent has occurred, the Court must ascertain and
effectuate what the parties intended at the time the 1928 Deed was executed. To do so, the Court
looks to the applicable rules of construction.
14
As to the first rule of construction, the nature and quantity of the interest conveyed must be
ascertained from the 1928 Deed itself. As discussed in this Court's Opinion and Order, filed March
22, 2019, the 1928 Deed states that the premises is being transferred in fee to the House Corp.,
subject only to the potential termination of that fee estate if the premises is no longer being used
as aChapter or Fraternity House of Beta Theta Pi. In that event, the University has the right to
terminate the estate upon payment of apurchase price set by the parties or, in the absence of such
an agreement, apurchase price set by arbitrators agreed upon by the parties.
As to the second rule of construction, effect must be given to the language of the 1928 Deed
in its entirety, and no portion may be unreasonably rejected. The "express purpose clause" of the
1928 Deed states;
It is hereby expressly stipulated that this conveyance is made for the
express purpose of the erection and perpetual maintenance by the said
party of the second part hereto of aFraternity or Chapter House for
the use of the members of the said Chapter of the said Fraternity, and
that the erection and maintenance thereof is acondition of this conveyance
and that this conveyance is also made subject to the exceptions and
reservations next hereinafter set forth.
[PSU 9, 0002-0003](emphasis added). The University asserts the only reasonable interpretation of
the express purpose clause is that the conveyance between the University and the House Corp. was
made for the construction and maintenance of aFraternity or Chapter House for use by members
of the Active Chapter of Beta Theta Pi. The Court agrees, finding "the said Chapter of said
Fraternity" to be in reference to the Active Chapter, not the House Corp. Further, the Court rejects
the House Corp.'s assertion that "the said Chapter of said Fraternity" is referring to the House
Corp. and the Active Chapter, as the First Reservation Clause contained in the 1928 Deed clearly
distinguishes between the two. Additionally, the Court finds this interpretation consistent with the
15
commonly accepted definition of a Fraternity House or Chapter House as a place where
undergraduate members of afraternity reside while attending acollege or university, Delta Psi
Fraternio) v, City of Burlington, 969 A.2d 54, 57 (Vt. 2008).
As to the third rule of construction, if adoubt arises concerning the interpretation of the
instrument, it will be resolved against the party who prepared it, Instantly, the Court finds this rule
inapplicable as it finds the 1928 Deed contains no genuine doubt as to its interpretation, As to the
fourth rule of construction, the language of the 1928 Deed should be interpreted in light of the
subject matter, the apparent object or purpose of the parties, and the conditions existing at the time
the 1928 Deed was executed, For this final rule of construction, the Court finds the testimony of
Esposito and the archival material presented by the University relevant, As discussed, in January
of 1888 the University's Board of Trustees lifted the prohibition against fraternities in response to
the University's housing shortage, At this time, there was only one ( 1) on-campus housing option
for undergraduate students. In addition to fraternity houses, the University's' Board of Trustees
began examining the possibility of on-campus dormitories for its undergraduate students.
Communications between founding members of Beta Theta Pi and the University's Board of
Trustees establish amutual understanding that the construction of the fraternity housing on-
campus would benefit the University's undergraduate student population, In addition to the 1928
Deed to the subject Property, the University entered into other deeds with fraternity-related
housing corporations for the express purpose of maintaining housing for its respective active
chapters, Included in each deed was aprovision reserving the University's right to purchase the
property at issue if it ceased to be used for the purpose of providing housing for the various housing
corporation's respective active chapters,
16
Therefore, the Court concludes the plain language of the 1928 Deed, when read in its
entirety, contemplates that the conveyance to the House Corp. by the University was for the
express purpose of the construction and maintenance of aChapter or Fraternity House for use by
Active Chapter Members of Beta Theta Pi. In order to determine whether the House Corp. is in
breach of the 1928 Deed, thereby triggering the University's right to purchase, the Court looks to
the current use of the Property, As discussed, the Charter of Beta Theta Pi at the University was
suspended and the Active Chapter of Beta Theta Pi at the University was disbanded in response to
the death of Piazza in February of 2017. On February 21, 2017, the House Corp,'s Board held a
unanimous vote to require the Active Chapter vacate the Property on or before March 4, 2017,
Since that time, the Property has not been used as ahome for Active Chapter members. Currently,
the only individual residing in the Property is ason of adues paying House Corp, member, The
individual has no personal affiliation with Beta Theta Pi. In addition to this individual, dues paying
members of the House Corp, intermittently use the Property for Board meetings, or as temporary
accommodations—akin to hotel accommodations—during home football weekends and other
special events, It is clear to this Court that such use does not constitute use as aFraternity or
Chapter House under the 1928 Deed. Accordingly, the Court finds the University's right to
purchase the Property , has been triggered.
Although it appears to this Court that the House Corp, desires something more happen with
the Property, such as recolonization, such adesire is not enough to overcome the fact that the
condition subsequent has occurred. The House Corp, is anon-profit organization. It is not a
fraternity. It cannot control the reestablishment of the Active Chapter at the University nor can it
institute recolonization of anew chapter at the University. Such adecision remains at the discretion
of the General Fraternity and no evidence was presented to the Court indicating any intention on
17
behalf of the General Fraternity to change or alter the status of the Alpha Upsilon Chapter at the
University since the Active Chapter was vacated in March of 2017,
In regards to the duty of good faith and fair dealing, the Court does not find the University
breached any applicable duty in its decision to enforce the deed provisions. As discussed, the
University permanently revolted recognition of Beta Theta Pi in March, 2017, No testimony was
presented indicating the University revolted recognition in order to purchase the Property, Instead,
it is clear to this Court the University's decision to revoke was due to the actions of the Active
Chapter that led to the death of Piazza, astudent of the University. Additionally, as indicated in
Rundle's testimony, the University's revocation had no effect on the National Fraternity's decision
to suspend the Active Charter and disband the Active Chapter. Further, of significant importance,
it was the decision of the House Corp, Board to evict the Active Chapter from the Property in
March, 2017, Given these circumstances, the Court finds the University clearly had the right to
enforce the deed provision contained in the 1928 Deed and that doing so was not in violation of
the duty of good faith and fair dealing,
Accordingly, the Court enters the following Verdict;
18
VERDICT
AND NOW, this 21" day of December, 2021, the Court enters the following Verdict in
favor of Plaintiff and Orders as follows;
1. Judgment is entered in favor of Plaintiff on its Complaint for Specific
Performance, and ownership of the subject premises shall be transferred back
to Plaintiff in accordance with the provisions set forth below;
2. Once this verdict becomes final, the parties shall have six (6) months to attempt
to negotiate a transfer price for the subject property. For these purposes,
Defendant shall afford Plaintiff, and any necessary designee of Plaintiff,
reasonable access to the subject premises for purposes of appraising the fair
market value of the property. The parties may waive the six (6) month period
for negotiation by written agreement and proceed as they may agree, or in the
absence of an agreement as to how to proceed, as set forth hereinafter.
3. Following the expiration of the period described in paragraph 2above, whether
by the lapse of time or upon the agreement of the parties, the parties shall have
two (2) months to agree upon the number of and identity of the members of a
Board of Arbitrators to determine the transfer price of the subject property.
4. If an impasse should arise regarding the number of and/or identity of arbitrators,
either party may file aPraecipe for ahearing before the Court where the Court
will set the number of arbitrators and/or determine the identity of said
arbitrators, as may be necessary. In the event of afuture hearing to set the
19
identities of the members of aBoard of Arbitrators, each party shall nominate
two (2) arbitrators by ding the same with the Prothonotary of Centre County
at least ten ( 10) days before the scheduled hearing and serve acopy of said
filing on the Court.
BY THE COURT;
rrar K, Marshall, Judge
20