FREIWALD LAW, P.C.

By:
Aaron J. Freiwald
[email protected]
Attorney ID No.: 78028
1500 Walnut Street
Eighteenth Floor
Philadelphia PA 19102
(215) 875-8000
JAMES VIVENZIO

Filed and Attested by

PROTHONOTARY
08 JUN 2015 06:27 am
J. OSTROWSKI

Attorneys for Plaintiff

COURT OF COMMON PLEAS
PHILADELPHIA COUNTY

Plaintiff
v.
THE PENNSYLVANIA STATE
UNIVERSITY, NATIONAL FRATERNITY
OF KAPPA DELTA RHO, ZETA CHAPTER
OF KAPPA DELTA RHO, THE
PENNSYLVANIA STATE UNIVERSITY
INTERFRATERNITY COUNCIL, and
PANHELLENIC ASSOCIATION

April Term, 2015

NO. 001671

JURY TRIAL DEMANDED

Defendants

Case ID: 150401671

COMPLAINT
I.

Introduction
1.

This case arises from reckless, barbaric, and life-threatening hazing at the Kappa
Delta Rho (KDR) fraternity house at Penn State University (Penn State).

2.

The hazing to which Plaintiff James Vivenzio was subjected as a KDR pledge
included physical assault and battery including cigarette burns; physically and
mentally abusive late-night line-ups that featured force-feeding bucketfuls of
liquor mixed with urine, vomit, hot sauce and other liquid and semi-solid
ingredients; gladiator games that subjected pledges to significant bodily
injuries; directing fraternity pledges to guzzle hard liquor without stopping until
vomiting was induced (a ritual in which fraternity alumni eagerly participated);
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requiring pledges to spend hours scrubbing floors and to pick up large quantities
of garbage that was deliberately strewn about the fraternity house; and to serve as
on-call errand-boys and laborers for older members.
3.

The hazing activities at KDR took place despite fraternity and university
assurances of a zero tolerance for hazing and, indeed, were perpetrated by both
current students and fraternity alumni, with the actual knowledge of PSU
officials.

4.

The KDR fraternity operated much like a gang, obtaining some of its funding by
converting the pre-paid food plans of its pledges and confiscating and selling their
prescription drugs. These funds were then used to pay for countless socials, presocials and parties at the fraternity house at which underage students were plied
with alcohol and, in some cases, with drugs to facilitate sexual assault and abuse.
Crucial to the fraternitys routine schedule of parties, alcohol and drug use, and
sexual misconduct, was the regular and violent hazing of fresh recruits.

5.

Plaintiff James Vivenzio is the whistleblower who, in January 2015, brought

evidence to police in the adjoining Borough of State College, Pennsylvania,
where KDRs fraternity house is located, about an invitation-only Facebook site
that was used by KDR members to post photos of, among other subjects, female
students naked, unconscious and, in some cases, in the act of being sexually
assaulted. This Facebook site was also used to facilitate hazing by enabling
instant communication with pledges and also to humiliate, harass and beckon
pledges on a 24/7 basis.

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6.

Beginning in the Fall 2012 and even continuing through the Spring 2013, Plaintiff
Vivenzio was subjected to violent hazing at Penn States KDR.

7.

In April 2014, one year before Plaintiff Vivenzio disclosed KDRs secret
Facebook page to local police, he met with a senior investigator from the Penn
State Office of Student Conduct at his home in Virginia and shared print outs of
group text messages and provided information about the Facebook site that was
clear evidence of the unlawful and dangerous hazing activities at KDR and acts of
sexual harassment and abuse at the fraternity. Plaintiff also told the Penn State
investigator that he had evidence relating to sexual assault at KDR and could
provide access to both the group text messages and the Facebook site. This was
the same Facebook site that Plaintiff later shared with local police prompting its
criminal investigation.

8.

During the meeting with Plaintiff Vivenzio and his parents at their home in
Virginia, Plaintiff Vivenzio pledged his continued cooperation with the Penn
State official to ensure that these activities were stopped and implored the Penn
State official to gain access to the Facebook page so he could see for himself the
atrocities taking place on a daily basis at KDR.

9.

After the meeting, the Penn State official vowed to promptly and thoroughly
investigate these activities at KDR. However, despite these assurances, the
University did absolutely nothing.

10.

In May 2015, Penn State announced a three-year suspension for KDR based on
the hazing and sexual misconduct that Plaintiff Vivenzio brought to the attention
of State College police in January 2015. In making its announcement about the

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suspension, Penn State made it sound like University officials first learned about
KDRs unlawful activities when the State College Police learned about them.
11.

In fact, Penn State recklessly and unconscionably sat on the information

Whistleblower Vivenzio had first brought the Penn States attention, causing
further harm to Mr. Vivenzio and to untold numbers of students whose injuries
and damages from hazing and sexual misconduct could have been prevented had
Penn State acted quickly, responsibly and decisively.

12.

All of the Defendants in this case, notwithstanding the recent three-year

suspension of KDR, have yet to act quickly, responsibly or decisively.

13.

As a result of extreme hazing at KDR, Plaintiff Vivenzio failed out after his
freshman year; entered rehabilitation and therapy programs for alcohol abuse;
and, in early-2015 was hospitalized as a result of post traumatic stress disorder
from the hazing.

14.

Plaintiff Vivenzio, now 21 years old, brings this action for compensatory and
punitive damages, as the law permits if he proves the claims in this action.
Importantly, Plaintiff also brings this action because he believes that Penn State
and the other Defendants have demonstrated through their actions, and through
their inaction, that they cannot be trusted to resolve the problem of widespread
hazing and sexual assault on campus through self-policing.

15.

Through this action, therefore, Plaintiff Vivenzio hopes to bring attention to the
unlawful, disturbing and dangerous hazing and sexual assault that takes place at
Penn State and at other university and college campuses as well and to force

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Defendants to take all necessary steps to stop hazing and sexual assault so as to
protect the health and well-being of all students.
II.

Parties
16.

Plaintiff James Vivenzio is an adult citizen of the Commonwealth of Virginia who

attended Penn State in 2012 and in 2014.

17.

Defendant The Pennsylvania State University (Penn State) is a state-supported

land-grant university founded in 1855 with a campus located at 201 Old Main,
University Park, Pennsylvania 16802. Penn State manages and operates 24
campuses all together throughout Pennsylvania, including several in Southeastern
Pennsylvania located within a few miles of this forum, as well as a global World
Campus.

18.

Penn State also has extensive ties to Philadelphia including an engineering

program operated out of the Philadelphia Navy Yard. Penn States website
features a page entitled Penn State in Philadelphia that includes a large
photograph of the Philadelphia skyline and a caption that states, Penn State Lives
Here. See www.philly.psu.edu.

19.

Defendant National Fraternity of Kappa Delta Rho (KDR National) is the

national organization of which Penn States KDR chapter is affiliated. KDR
National maintains offices at 331 South Main Street, Greensburg, Pennsylvania
15601. KDR National provides the local KDR chapter and its members at Penn
State with a full-time chef and a grounds keeper/handyman.

20.

KDR National talks a good game when trying to portray itself as being antihazing. As recently as May 18, 2015, KDR National posted a letter on its website

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touting that it had joined a consortium of national organizations that maintains an

anti-hazing hotline.
21.

The National Fraternitys track record, however, tells a terribly different story.
a. In 2003, KDR was banned from Colgate University in New York for hazing;
b. In 2009, several members of the KDR chapter at the University of Toledo
were held accountable and the chapter underwent a reorganization
because of hazing violations;
c. Also in 2009, KDR was suspended at Bucknell University for brotherhood
conduct and safety violations;
d. In March 2015, KDR was suspended at Middlebury College for violating
hazing policies, with conduct that included verbal abuse, blindfolding and
encouraging the use of alcohol;
e. In April 2015, a KDR member was arrested at West Chester University for
alleged rape and sexual assault at a KDR fraternity party; and
f. In May 2015, as a result of information provided by Plaintiff Vivenzio, Penn
State finally suspended the local chapter of Kappa Delta Rho for three years.

22.

Defendant Zeta Chapter of Kappa Delta Rho (KDR) is the local chapter of
KDR National that owns and operates a house and fraternity organization on the
Penn State campus, with an address at 420 East Prospect Avenue, State College,
Pennsylvania 19038.

23.

Over the door to the KDR house at Penn State is a sign that reads (in Latin),
Honor Above All. Defendant KDRs conduct, as described in detail in this
Complaint, could not be further from honorable. Defendant KDRs conduct

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included acts of sadistic violence, sexual assault, physical and psychological

intimidation, racial and anti-Semitic epithets, and widespread alcohol and illicit
drug use and abuse.
24.

Defendant The Pennsylvania State University Interfraternity Council (IFC) is a

campus organization that participates in setting and enforcing policies, procedures
and regulations relating to Greek life at Penn State, including matters relating to
hazing. IFCs offices are located at 218 HUB-Robeson Center, University Park,
Pennsylvania 16802.

25.

Defendant the Panhellenic Association (Panhellenic) is a campus organization

that participates in setting and enforcing policies, procedures and regulations
relating to Greek life at Penn State, including matters relating to hazing. The
offices of Panhellenic are located at 217 HUB-Robeson Center, University Park,
Pennsylvania 16802.

26.

Defendants are liable, jointly and severally, for the negligent, reckless and
intentional acts of their agents, servants, employees and ostensible/apparent
agents.

27.

Defendant Penn State is indirectly liable for the conduct of its agents but is also
directly liable for all the harm Plaintiff has suffered to the extent Penn State
provided an environment, a culture and the opportunity for the other Defendants,
through their agents, to act unlawfully in the specific ways set forth in detail in
this Complaint.

III.

Factual Allegations

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28.

Plaintiff James Vivenzio was raised in Northern Virginia with his parents and
siblings.

29.

James was a successful high school student and was active in his classes and
athletic programs, including track and field, football and wrestling.

30.

James entered Penn State in the Fall 2012, living in a freshman dorm on the
Universitys main campus in University Park, Pennsylvania.

31.

Early on in his first semester at PSU, James took an interest in joining or

rushing the KDR fraternity.

32.

James had a couple of older friends who had attended his high school and who
had become members at KDR. They had spoken highly of the fraternity.

33.

In the Fall 2012, prior to the start of the rush period for fraternities at Penn State,
Defendant IFC held informational meetings for prospective fraternity pledges. At
these meetings, the IFC stressed repeatedly that Penn State and the IFC had zero
tolerance for hazing.

34.

When KDR members, including the members who had attended James high
school, spoke of KDR, they were always careful to reassure that there was no
hazing.

35.

Penn State has a strongly worded anti-hazing policy that states:

The University defines Hazing as
any action or situation that recklessly or intentionally endangers the mental or
physical health or safety of a student or that willfully destroys or removes public
or private property for the purpose of initiation or admission into or affiliation
with, or as a condition of continued membership in, any registered student
organization.
Hazing includes, but is not limited to

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any brutality of a physical nature, such as whipping, beating, branding, forced

calisthenics, exposure to the elements, forced consumption of any food, liquor,
drug, or other substance or any other forced physical activity that could adversely
affect the extreme mental stress, such as sleep deprivation, forced exclusion from
social contact that could result in extreme embarrassment, or any other forced
activity that could adversely affect the mental health or dignity of the individual,
or any willful destruction or removal of public or private property.
Any activities as described in this definition upon which the initiation or
admission into or affiliation with or continued membership in a registered student
organization is directly or indirectly conditioned shall be presumed to be forced
activity, the willingness of the individual to participate in such activity
notwithstanding. Any registered student organization that commits hazing is
subject to disciplinary action by the appropriate registering organization.
36.

Pennsylvania law uses the identical definition of hazing and makes it unlawful for
any person to engage in hazing. 24 P.S. 5352-5353.

37.

Defendants Penn State, the IFC and Panhellenic contributed to creating Penn
States anti-hazing policy and shared responsibility for enforcing this policy.

38.

KDR publishes a detailed booklet called, The Pathfinder, Kappa Delta Rho
Educational Manual and Historical Handbook.

39.

New pledges were expected to memorize lengthy passages from The Pathfinder,
including information about KDRs history, organizational chart and other details
about the fraternity.

40.

The Pathfinder contains express assurances that KDR is a no hazing fraternity.

Indeed, the National KDR has a National Policy Against Hazing that reads, as
follows:
WHEREAS, The National Fraternity of Kappa Delta Rho, Inc, recognizes the
value of pledgeship, and of a sound pledge program as a means whereby a man
may develop the highest ideals, be made more fully aware of those humans
around him, and become better able to make worthwhile contributions to his life,
as well as the lives of those around him, the Fraternity.

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DECLARES, then, that it will do its best to propagate a program which will
accomplish these ideals emphasizing human dignity, and the development of
spirit, and understanding.
WHEREAS, certain undesirable practices of physical, and mental hazing are not
in accord with the principles of Kappa Delta Rho, and of the fraternity system as a
whole,
NOW, therefore, The National Fraternity of Kappa Delta Rho, Inc.
DECLARES that no member of pledge of any chapter shall engage in, or commit
any act in Pledge training, initiation, or any fraternity activity which may, in any
way injure, degrade, disgrace, be morally objectionable, or hold a member or a
pledge up to ridicule, either publicly or privately, and further
DECLARES that such activity is prohibited in its chapters, and by its members,
and states that the National Fraternity will full [sic] investigate any alleged
violation of this policy, and will take such remedial, or disciplinary action as may
be warranted by the offense.
41.

Students interested in rushing a fraternity at Penn State were first required to

attend an on-campus informational session sponsored by the IFC at which various
presentations were conducted by IFC officials and fraternity presidents. These
information sessions included discussion about Penn States anti-hazing policies
and the dangers of hazing.

42.

During the IFC information sessions, packets containing anti-hazing literature

were provided to the students as well as information about an anti-hazing hotline.

43.

Based on the official positions of Penn State, KDR and other campus
organizations involved in Greek life at Penn State, including the IFC and
Panhellenic, Plaintiff James Vivenzio believed quite reasonably that KDR would
not haze him.

44.

Notwithstanding the clear proscriptions against hazing in Penn States policy,

Pennsylvania state law, and the statements and representations of the IFC and of

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KDR itself, James Vivenzio and others were repeatedly, violently and viciously
hazed.
45.

Hazing at KDR took many forms, including physical, financial and psychological.

46.

The older KDR members responsible for organizing and coordinating the hazing,
attracted new pledges by making the first days of the pledge experience fun and
friendly. Then the hazing began.

47.

KDR members fostered a bro culture, which meant that members and pledges
were not to divulge details of what went on inside the fraternity to anyone outside
the fraternity.

48.

Much like a gang or other criminal organization, secrecy and loyalty were crucial
to the fraternity members being able to engage in a wide range of illicit and
unlawful activity, including under age drinking, drug use and sexual misconduct.

49.

Pledges were taught not only to value loyalty to the fraternity itself and to the
older members of the fraternity but also to consider the bond among the members
of the pledge class to be sacred and strong.

50.

By forging a strong bond among the members of the pledge class, the older
fraternity members were unchallenged as they carried out hazing rituals. If any
new recruit refused to participate, the other members of the pledge class would
receive more severe hazing.

51.

Plaintiff Vivenzio was subjected to extreme and violent hazing, including the
following:
a. Forced line ups, during which pledges were called to line up in the
basement of the fraternity house, often in the middle of the night, and then to

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perform a number of ritual activities, including: drinking large quantities of

liquor while performing wall sits and push ups until passing out; force-fed
drinking from a bucket filled with a concoction of hot sauce, liquor, cat food,
urine and other liquid and semi-solid ingredients, the smell of which was often
enough to induce vomiting;
b. Physical battery, such as the time a six-foot-five KDR member, without
warning, punched and battered the defenseless Mr. Vivenzio multiple times in
the face and body for missing a line up;
c. Cigarette burns to the chest;
d. Forced consumption of large quantities of hard liquor, sometimes with the aid
and participation of KDR alumni, until vomiting was induced;
e. Gladiator games, such as pledge tackle football without pads, that subjected
the fraternity recruits to significant physical injuries;
f. Confiscation of cafeteria food-plan funds, worth several thousands of dollars,
to pay for fraternity parties, liquor, food, cigarettes, blunts and condoms. All
pledges were required to have cigarettes, blunts and condoms in their
possession at all times in case an older KDR member requested these items;
g. Work as guards at the entrance to the fraternity during parties, sometimes four
or five nights a week, in case a member from the Penn State IFC came and
then to warn the members inside so that liquor could be stashed until the IFC
left, always after only a wink and a nod to what was going on inside the
fraternity house.

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52.

Older KDR members maintained text message groups that were used to text
message groups
that were used to
communicate work
assignments,
command
attendance at the
fraternity house
and also to berate
pledges with racial
and ethnic slurs,
post daily photos
of sexually explicit
images and
publicize humiliating and sexually abusive photos of drunken, blacked out
visitors to the fraternity house and of the pledges themselves.

53.

KDR members sent text messages to one another and in text message groups that
made frequent references to offensive, hate-filled language such as kike,
faggot and nigga and to unlawful activity such as using cocaine and other
illegal drugs.

54.

KDR members also maintained a members-only Facebook page that featured

numerous photos as well as running commentary from fraternity members of
pledges and other students passed out from over-consumption of alcohol and

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sprawled on sofas, on the floor or in a wide open Port-a-potty; female students

unconscious and naked and, in one case, passed out after losing control of her
bowel; female students apparently in the act of being sexually assaulted while
heavily intoxicated; and various hazing activities such as branding the buttocks of
two pledges with a hot clothes hangar.
55.

Through his experiences at KDR, Plaintiff came to understand that first-year

female students, because of their lack of experience, were the targets of the
numerous KDR parties that featured heavy drinking and punch spiked with drugs
designed to induce unconsciousness.

56.

The hazing at KDR was extreme and life threatening. One time during Plaintiffs
pledge period, they were forced to lie on the floor of a dirty basement while
garbage, broken glass and cigarettes and bleach was strewn about the room. One
of the pledges was allergic to bleach and, along with the other pledges was
required to do push ups on the glass strewn, bleach-covered floor. This pledge
developed an acute reaction so severe that he was administered an epinephrine
pen by one of the fraternity brothers.

57.

On another occasion, a pledge was so ill after being hazed with alcohol (required
to drink large quantities of hard liquor) that he pleaded to be taken to the hospital
only to be denied by the older fraternity members.

58.

Plaintiff tried to flee the fraternity a number of times, but each time an older
fraternity member who Plaintiff had known in high school persuaded him to stay,
assuring him the hazing was nearly over and then he would be a member, too.

59.

The intense period of hazing at KDR went on daily, week after week, for nearly

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three months, culminating in a week-long hazing known as hell week. The

pledges obligations to the older members of the fraternity, including cleaning,
doing homework, paying for parties with cafeteria plan funds and even hazing
continued through the Spring 2013 semester.
60.

Plaintiff became increasingly concerned about the hazing but it was difficult to
extricate himself. He was under intense social pressures and he feared for his
physical safety and the physical well being of his fellow pledges. At times, the
physical intimidation did actually result in physical violence.

61.

KDR pledges were required to submit to their class schedules so that older KDR
members could determine at any time the whereabouts of any pledge when they
were absent from a required line up or other mandatory fraternity activities.

62.

The fraternity inculcated a sense of obligation and commitment and loyalty

among the members of the pledge class. Abandoning the fraternity would mean
leaving behind the other members of the pledge class to face even harsher hazing.

63.

In the broader culture at Penn State, membership in a fraternity was a privilege

granted to a relatively small number of applicants and so fraternity membership
carried a high social status. Plaintiff also knew that leaving the fraternity, in turn,
would carry a powerful negative stigma.

64.

Part of the hazing also involved photographing pledge members in embarrassing

positions, such as passed out on a sofa. Sometimes, the older members posed an
unconscious pledge member by writing on their face with a marker or placing a
members genitalia on the face of the passed-out pledge. These photos then were
part of what compelled pledges not to speak out against the hazing.

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65.

In addition, continuous alcohol use, to the point of extreme intoxication, was a

daily part of the KDR pledge process and this severely affected Plaintiffs ability
to understand clearly what alternatives might be available.

66.

Still, Plaintiffs concerns became increasingly unbearable, finally to the point that
he submitted an anonymous report to a Penn State anti-hazing hotline. However,
he would later learn that reports to this hotline were fielded by a student-run
organization that then immediately leaked the report back to KDR. In the days
after Plaintiff submitted his hotline report, there was great commotion inside KDR
as older members attempted to identify the rat within the pledge class.

67.

Plaintiff was intimidated and fearful for his physical well-being and for the safety
of his fellow pledge class members if he fled KDR.

68.

To document the hazing so he could later prove what really went on, Plaintiff
began taking hundreds of screen shots from his mobile phone of text messages
that referred to the hazing at KDR. Later, knowing the risks involved, he took
many screen shots of photos on KDRs secret Facebook page.

69.

The hazing activities at KDR were so extreme and had such an impact on Plaintiff
physically and psychologically that Plaintiff failed all of his classes during the
Fall semester and he was unable to complete the Spring semester. Several other
members of Plaintiffs pledge class failed out or were unable to continue at Penn
State.

70.

At the end of his freshman year, Plaintiff dropped out of Penn State and spent a
year trying to regain his footing with the hope of returning to the university he

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had so admired as a Virginia high school student and from which he still aspired
to graduate.
71.

During his time away from Penn State, Plaintiff attended counseling, including
alcohol abuse counseling, and worked to be able to return to Penn State. Plaintiff
was determined not only to resume his academic program but to return to campus
to change the fraternity culture at school.

72.

By the Spring 2014, Plaintiff was able to arrange for re-instatement to Penn State
through their trauma drop process after he informed a Penn State investigator
that he had been hazed at KDR during his freshman year.

73.

The meeting with the Penn State official, Danny Shaha, a senior investigator from
Penn States Office of Student Conduct, took place in April 2014 at Plaintiffs
home.

74.

At the meeting with the Penn State investigator, Plaintiff and his parents
described the hazing to which Plaintiff had been subjected and showed him
dozens of text messages and images from Plaintiffs collection of screen shots,
which clearly documented the abuse at the fraternity. Plaintiff also alerted the
Penn State official to KDRs members-only Facebook page and the fact that there
was sexual misconduct and sexual assault taking place at the fraternity.

75.

The Penn State investigator informed Plaintiff and his parents that the University
was aware that hazing takes place.

76.

The Penn State investigator was appalled at the documentation presented by

Plaintiff and his parents, took detailed notes of all the information provided, and
promised to launch an investigation into hazing and other misconduct at KDR.

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Months went by, during which time Plaintiff and his parents assumed Penn State
indeed was looking into the matter.
77.

Plaintiff and his family heard nothing from Penn State, even after they pledged
their full support and cooperation.

78.

Indeed, to this day, no one from Penn State has met with Plaintiff to further
discuss the information he provided to the Penn State investigator in April 2014
or to obtain copies of the evidence Plaintiff has.

79.

To this day, no one from Penn State has officially apologized to Plaintiff for the
horrific experiences he suffered being hazed at KDR.

80.

Indirectly, however, Penn State has acknowledged some responsibility for the
hazing Plaintiff suffered: When the University agreed to re-instate Plaintiff under
the trauma drop program, Penn State granted Plaintiff a full reimbursement of
his first-semester freshman year tuition and a partial refund of the thousands of
dollars in food-plan funds that KDR had confiscated.

81.

During the Fall 2014, Plaintiff was again hazed by the fraternity and was provided
alcohol though he was a still younger than the legal drinking age.

82.

At this time, Plaintiff saw that Penn State had done nothing with the information
he had provided to the senior investigator about his freshman-year experiences.

83.

As a result, Plaintiff continued to collect evidence against KDR, taking screen

shots of text messaging and from the KDR Facebook page.

84.

Plaintiff was under extreme stress during this time because of the trauma of the
hazing he had experienced and the anxiety he felt that his role as an informant to
the University about KDRs activities would be discovered.

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85.

In December 2014, Plaintiff was overcome by the stress and anxiety and had to
leave school and return home to his parents in Virginia.

86.

After nearly eight months went by and Penn State failed to follow up on
Plaintiffs evidence of hazing at KDR, Plaintiff determined to take matters to the
police.

87.

On January 17, 2015, Plaintiff reported his concerns about hazing and sexual
misconduct to the police in State College, bringing some of the screen shots from
the KDR Facebook page as evidence to support his claims.

88.

In February 2015, overwhelmed by stress and anxiety, and fearful of retaliation or

retribution from KDR members, Plaintiff obtained medical treatment for posttraumatic stress disorder and was hospitalized.

89.

As a result of extreme hazing at KDR, Plaintiff has suffered severe injuries and
losses, including:
a. Post traumatic stress;
b. Anxiety disorder;
c. Alcohol abuse disorder;
d. Life threatening activities;
e. Physical abuse, including facial injuries and cigarette burns to the body;
f. Mental anguish and distress;
g. Loss of academic opportunities;
h. Loss of future earning capacity;
i.

Financial losses from confiscated cafeteria plan funds;

j.

Medical care costs for medical and psychological treatment; and

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k. Other incidental and out of pocket costs.

IV.

Claims
COUNT ONE: NEGLIGENCE
Plaintiff James Vivenzio vs. All Defendants
90.

The preceding paragraphs are incorporated here by reference.

91.

Defendants owed a duty of care to Plaintiff.

92.

Defendant KDR breached its duty to Plaintiff by failing to take reasonable

steps to safeguard him from injury while on the fraternitys property.

93.

Defendant KDR also breached its duty to Plaintiff by failing to follow and enforce
fraternity and university policies against hazing.

94.

Defendant KDR is liable for the negligent acts of its agents, servants, employees,
and fraternity members.

95.

Defendant KDR National breached its duty by failing to supervise the action if its
alumni who participated in hazing and by failing to supervise the members of
KDR who participated in hazing and by failing to enforce its policies regarding
hazing.

96.

Defendant KDR National is liable for the negligent acts of its agents, servants,
employees, and fraternity members.

97.

Penn State breached its duty to Plaintiff by failing to enforce its policies against
hazing.

98.

Penn State also breached its duty to Plaintiff by failing to follow up on clear signs
that Plaintiff was being harmed by his fraternity experience, including the fact
that he received Fs in almost every one of his first semester classes and frequently
had to seek medical treatment in the Penn State health clinic for various illnesses

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resulting from the hazing line ups (during which Plaintiff and other pledges were,
among other things, forced to ingest bucketfuls of liquor mixed with urine, vomit,
hot sauce and other liquid and semi-solid ingredients.)
99.

Penn State further breached its duty to Plaintiff by failing to investigate claims of
hazing and other misconduct at KDR when Penn State had constructive or actual
knowledge of such activities.

100.

Penn State also breached its duty to Plaintiff by fostering a culture of nonenforcement of anti-hazing policies, a culture that was permissive to underage
drinking, sexual mistreatment of female and male students, and excessive,
unsupervised and dangerous fraternity social behavior.

101.

Penn State is liable for the negligent acts of its agents, servants, employees, and
KDRs fraternity members.

102.

Defendants IFC and Panhellenic breached their duty to Plaintiff by failing to

enforce Penn State policies against hazing and by failing to investigate clear
evidence that hazing and sexual and physical assault were taking place at KDR.

103.

Defendants IFC and Panhellenic also breached their duty to Plaintiff by fostering
a culture of non-enforcement of anti-hazing policies, a culture that was permissive
to underage drinking, sexual mistreatment of female and male students, and
excessive, unsupervised and dangerous fraternity social behavior.

104.

The standard of conduct Defendants were expect to follow in regard to prevent of

fraternity hazing is set forth clearly and succinctly in Pennsylvanias anti-hazing
law, which is quoted above and is found at 24 P.S. 5352-5353.

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Case ID: 150401671

105.

Defendants were also expected to follow standards of conduct defined by Penn

States own anti-hazing policies, which largely mirror Pennsylvanias anti-hazing
statute.

106.

The negligence of Defendants was a legal and factual cause of Plaintiffs injuries
and losses.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally,

and seeks compensatory damages in an amount that is in excess of local arbitration limits, as
well as all interest and costs as Pennsylvania law permits and any and all other relief that the
Court or a jury may deem appropriate.
COUNT TWO: NEGLIGENCE PER SE
Plaintiff James Vivenzio vs. All Defendants
107.

The preceding paragraphs are incorporated by reference here.

108.

Defendants actions in hazing Plaintiff, in failing to take all reasonable and

necessary steps to prevent hazing, in failing to investigate evidence of hazing, in
failing to enforce policies and procedures against hazing, and in fostering a
culture at Penn State in which hazing was tolerated and accepted, all of these were
in violation of Pennsylvania law against hazing and in particular 24 P.S. 53525353.

109.

The conduct of Defendants constitutes negligence per se because this conduct

clearly violates Pennsylvanias anti-hazing statute.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally,

and seeks compensatory damages in an amount that is in excess of local arbitration limits, as
well as all interest and costs as Pennsylvania law permits and any and all other relief that the
Court or a jury may deem appropriate.

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Case ID: 150401671

COUNT THREE: BATTERY

Plaintiff James Vivenzio v. All Defendants
110.

The preceding paragraphs are incorporated by reference here.

111.

The hazing to which Plaintiff was subjected, as described in detail in this

Complaint, constituted an unlawful and unconsented touching, which is a battery
under Pennsylvania law.

112.

Plaintiff was force-fed hard liquor; was punched in the face; was burned by a
cigarette on his body; was pushed against a wall and pushed to the floor; was
required to drink a concoction of liquor, hot sauce, cat food, urine and other liquid
and semi-solid ingredients; and was physically battered in numerous other ways
as well.

113.

The repeated battery to which Plaintiff was subjected caused him severe physical
injury, mental anguish and other damages and losses, some of which are described
above.

114.

All Defendants are liable, directly or indirectly, for the conduct of those who
perpetrated the hazing and battery against Plaintiff.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally,

and seeks compensatory and punitive damages in an amount that is in excess of local arbitration
limits, as well as all interest and costs as Pennsylvania law permits and any and all other relief
that the Court or a jury may deem appropriate.

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Case ID: 150401671

COUNT FOUR: UNLAWFUL FURNISHING ALCOHOL TO A MINOR

Plaintiff James Vivenzio vs. All Defendants
115.

.The preceding paragraphs are incorporated here by reference.

116.

Defendants furnished large quantities of liquor to Plaintiff, and many others, and
did so repeatedly.

117.

Defendants acted through conduct of their agents, servants, employees and

apparent agents in furnishing alcohol to Plaintiff and many other minors.

118.

Providing alcohol to a minor is unlawful and gives rise to civil liability when the
violation leads to harm, as was the case here.

119.

Defendants conduct in repeatedly furnishing alcohol to minors; in failing to

enforce policies and procedures against hazing; in creating a culture of
permissiveness for fraternity social behavior, including excessive drinking and
furnishing large quantities of liquor to minors; and in refusing to follow up on
evidence of this unlawful behavior when in possession of constructive and actual
knowledge of this behavior; constituted not only negligent but also reckless
conduct.

120.

Defendants acted recklessly in that the repeated furnishing of liquor to minors,

including Plaintiff knowingly and in clear disregard for his safety and well being
placed him in substantial risk of serious harm.

121.

Plaintiff suffered significant physical harm, mental anguish and other injuries and
losses as a result of Defendants unlawful furnishing of alcohol to minors,
including Plaintiff.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally,

and seeks compensatory and punitive damages in an amount that is in excess of local arbitration

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Case ID: 150401671

limits, as well as all interest and costs as Pennsylvania law permits and any and all other relief
that the Court or a jury may deem appropriate.
COUNT FIVE: FURNISHING LIQUOR TO ONE OBVIOUSLY INTOXICATED
Plaintiff James Vivenzio vs. All Defendant
122.

The preceding paragraphs are incorporated by reference.

123.

Defendants furnished large quantities of liquor to Plaintiff, and many others, and
did so repeatedly when it was clear and obvious they were intoxicated.

124.

Defendants acted through conduct of their agents, servants, employees and

apparent agents in furnishing alcohol to Plaintiff and many other minors when
they were clearly intoxicated.

125.

Providing alcohol to one already intoxicated is unlawful and gives rise to civil
liability when the violation leads to harm, as was the case here.

126.

Defendants conduct in repeatedly furnishing alcohol to minors; in failing to

enforce policies and procedures against hazing; in creating a culture of
permissiveness for fraternity social behavior, including excessive drinking and
furnishing large quantities of liquor to minors; and in refusing to follow up on
evidence of this unlawful behavior when in possession of constructive and actual
knowledge of this behavior; constituted not only negligent but also reckless
conduct.

127.

Defendants acted recklessly in that the repeated furnishing of liquor to minors,

including Plaintiff, with knowledge that they were already intoxicated and did so
knowingly and in clear disregard for his safety and well being, which placed
Plaintiff in substantial risk of serious harm.

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Case ID: 150401671

128.

Plaintiff suffered significant physical harm, mental anguish and other injuries and
losses as a result of Defendants unlawful furnishing of alcohol to minors,
including Plaintiff, when Plaintiff was already and clearly intoxicated.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally,

and seeks compensatory and punitive damages in an amount that is in excess of local arbitration
limits, as well as all interest and costs as Pennsylvania law permits and any and all other relief
that the Court or a jury may deem appropriate.
COUNT SIX: FALSE IMPRISONMENT
Plaintiff James Vivenzio vs. All Defendants
129.

The preceding paragraphs are incorporated by reference here.

130.

A person is liable for false imprisonment of another if he knowingly restrains

another so as to substantially interfere with that other persons liberty.

131.

Pennsylvania law expressly makes it unlawful for a person to engage in false

imprisonment of another. 18 Pa.C.S. 2903.

132.

There were numerous instances during the hazing perpetrated against Plaintiff that
KDR members restrained him physically so as to substantially interfere with his
liberty.

133.

The middle-of-the-night line-ups, described in this Complaint, are clear

examples of Defendants false imprisonment of Plaintiff.

134.

During the last week of pledging, known as hell week, the pledges were
physically prevented from leaving the fraternity house by being locked in the
library and hazed and forced to sleep on the tile floor. Another hazing ritual
during hell week at KDR involved blindfolding the pledges and locking them in
a back room in the basement of the fraternity house for countless hours and

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Case ID: 150401671

sadistically hazing the pledges before finally admitting them to the fraternity.
Pledge line ups too kplace every night during hell week.
135.

All Defendants are liable, indirectly or directly, for false imprisonment of Plaintiff
James Vivenzio.

136.

Plaintiff suffered severe injuries as a result of the false imprisonment, including

physical, emotional and psychological damages.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally,

and seeks compensatory and punitive damages in an amount that is in excess of local arbitration
limits, as well as all interest and costs as Pennsylvania law permits and any and all other relief
that the Court or a jury may deem appropriate.
COUNT SEVEN: FRAUD
Plaintiff James Vivenzio vs. All Defendants
137.

The preceding paragraphs are incorporated by reference here.

138.

Defendants all made knowingly false statements about hazing policies and
practices at Penn State and at KDR specifically.

139.

Defendants represented to Plaintiff, expressly and in stated policies and at

informational meetings about rushing and in literature distributed by Penn State,
KDR and KDR National that Penn States fraternities and that KDR specifically
were not tolerant of hazing and sexual assault.

140.

In fact, KDR openly hazed its freshman pledges, including Plaintiff.

141.

In fact, KDR National, through its alumni, actively participated in hazing of Penn
State freshman, including Plaintiff.

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Case ID: 150401671

142.

In fact, Penn State, IFC and Panhellenic tolerated hazing at its fraternities,
including KDR, and through widespread non-enforcement of anti-hazing policies
actually encouraged fraternities to engage in hazing.

143.

Defendants many false statements about hazing were made with knowledge and
understanding that they were false.

144.

Plaintiff James Vivenzio relied on the false statements of Defendants when he

decided to pledge to the KDR fraternity.

145.

Plaintiff would not have joined KDR if he had known about the rampant and
violent and dangerous hazing there.

146.

Plaintiffs reliance on the many false statements Defendants made about hazing
were obviously to his detriment in that he suffered severe injuries and losses, both
physically and psychologically.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally,

and seeks compensatory and punitive damages in an amount that is in excess of local arbitration
limits, as well as all interest and costs as Pennsylvania law permits and any and all other relief
that the Court or a jury may deem appropriate.

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Case ID: 150401671

COUNT EIGHT: CONVERSION

Plaintiff James Vivenzio vs. All Defendants
147.

The preceding paragraphs are incorporated by reference here.

148.

Defendants, through the actions of various KDR members, confiscated Plaintiffs

cafeteria food-plan money, which amounted to thousands of dollars.

149.

The conduct of Defendants in taking property of substantial value belonging to

Plaintiff constitutes unlawful conversion under Pennsylvania law.

150.

All Defendants are liable, indirectly or directly, for the conduct of those KDR
members that engaged in taking Plaintiffs property.

WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally,

and seeks compensatory damages, as well as all interest and costs as Pennsylvania law permits
and any and all other relief that the Court or a jury may deem appropriate.

FREIWALD LAW, P.C.

By:

___________________________
AARON J. FREIWALD
Counsel for Plaintiffs
1500 Walnut Street, 18th Floor
Philadelphia, PA 19102
(215) 875-8000
[email protected]

Case ID: 150401671

Case ID: 150401671

CERTIFICATE OF SERVICE
I, Aaron J. Freiwald, Esquire, hereby certify that service of a true and correct copy of the
foregoing Complaint was served upon the following on this date, via first class mail, as follows:
Gaetano P. Piccirilli, Esquire
Dilworth Paxson, LLP
1500 Market Street
Suite 3500E
Philadelphia, PA 19102
Panhellenic Association
217 HUB-Roeson Center
University Park, PA 16802
The Pennsylvania State University
201 Old Main Street
University Park, PA 16801
The Pennsylvania State University of Interfraternity Council
218 HUB-Robeson Center
University Park, PA 16802
Zeta Chapter of Kappa Delta Rho
420 E Prospect Avenue
State College, PA 19038

________________________________
AARON J. FREIWALD, ESQUIRE

Case ID: 150401671