In a decision issued Monday, Judge Allan van Gestel denied the Rev. Peter J. Inzerillo's motion for summary judgment in a suit brought against Inzerillo, the Rev. Brendan O'Donoghue and Roman Catholic diocesan officials by Edward L. Gagne in 1994. A summary judgment is a judgment without the necessity of a trial on the basis of undisputed facts as disclosed by the pleadings in a case.

Gagne, of Spencer, alleges in the suit that he was sexually assaulted as a 13-year-old altar boy by O'Donoghue in the rectory of Our Lady of the Rosary in Spencer. The assault is alleged to have occurred in 1978.

Gagne further alleges that Inzerillo sexually assaulted him in 1985 when Inzerillo was vocation director for the Roman Catholic Diocese of Worcester and Gagne was considering entering the priesthood.

Inzerillo, who is on administrative leave from St. Anthony de Padua Church in Fitchburg, and O'Donoghue, who is retired, denied Gagne's allegations in depositions.

STATUTE OF LIMITATIONS

Lawyer Beth A. Bagley, representing Inzerillo, argued in court filings that Gagne's claims against Inzerillo, which include allegations of sexual assault and battery, negligence, invasion of right of privacy, clergy malpractice and intentional and negligent infliction of emotional distress, are legally barred by the statute of limitations because the suit was filed more than three years after the alleged abuse.

In denying the motion, however, van Gestel said case law has established that the statute of limitations in such cases does not begin until the plaintiff learns, or reasonably should have learned, that he or she has been harmed by a defendant's conduct.

Gagne contends that he did not realize the connection between the alleged sexual assaults by Inzerillo and O'Donoghue and his resulting psychological and emotional harm until 1991, when he was undergoing psychiatric counseling

EARLIER RULING .

Van Gestel noted that another Superior Court judge, Daniel F. Toomey, ruled earlier in the case that Gagne had "presented sufficient evidence to raise a genuine issue of material fact as to when he knew or should have known that his injuries were caused by the defendants' conduct.

"Such an issue is material to the defense of statute of limitations and renders defendants' motion premature," Toomey found.

Toomey's June 26 ruling was in response to a motion to dismiss, or, in the alternative, for summary judgment filed by lawyers for O'Donoghue, retired Bishop Bernard J. Flanagan and retired Bishop Timothy J. Harrington.

Toomey allowed the motion as to clergy malpractice and breach of fiduciary duty claims against O'Donoghue, Flanagan, Harrington and the diocese and denied it as to all other claims against those defendants, including negligence, sexual assault and battery, invasion of privacy, and intentional infliction of emotional distress claims against O'Donoghue and the diocese and negligence and negligent hiring and supervision claims against Flanagan and Harrington.

At the time the lawsuit was filed, Inzerillo, who grew up in Barre and graduated from the former Barre High School, was diocesan vocations director and has been pastor of St. Anthony de Padua Church, Fitchburg, since 1985. He was headmaster of St. Peter-Marian High School, Worcester, from 1979 until going to Fitchburg. He also served as hockey coach at St. Peter-Marian and then at St. Bernard's in Fitchburg. He was ordained in 1970 by then Bishop Flanagan. He was associate pastor at St. Ann's Church, Leominster, after ordination and then was transferred to St. Peter's High School, which later merged with Marian. While teaching he was in residence at St. Columba's rectory, Paxton, St. Stephen's rectory and Our Lady of Lourdes.

Stephen J. Lyons, lawyer for Edward L. Gagne of Spencer, said yesterday that the diocese's failure to disclose the information continues a decades-old pattern of hiding problems involving sexual abuse by priests. Condoning, overlooking and "covering up" sexual misconduct allegations, he said, lies at the core of Gagne's case.

He said the case will focus on "the diocese's failure to protect children against predators they covered up for and knew about for decades."

Gagne sued the diocese in 1994. His suit claims he was forced to perform sexual acts by the Rev. Brendan O'Donaghue in 1978 while he was an altar boy at Our Lady of the Rosary in Spencer.

The suit alleges that church officials did not take action after he and his parents notified then Bishop Bernard J. Flanagan about the assaults and were told by the bishop and O'Donaghue to never disclose the incident to anyone.

Gagne's suit states that he later was counseled by another priest at the parish, the Rev. Peter J. Inzerillo, who also sexually assaulted him.

Inzerillo, who is on administrative leave from St. Anthony de Padua Church in Fitchburg, and O'Donaghue, who is retired, have denied Gagne's allegations in depositions.

The civil case names the two priests, the late Flanagan, the late Bishop Timothy J. Harrington and the Diocese of Worcester.

Lawyers for the diocese argued yesterday in court that the records Lyons said were not disclosed had not been specifically requested or did not exist.

Lyons said he had requested documents the diocese had stating its policy on handling sexual misconduct by priests. He said the diocese did not turn over a lengthy 1972 report examining the church's role in causing and preventing sexual misconduct by priests.

He said the diocese also failed to disclose two prior reports that O'Donaghue had inappropriate contact with children. He said numerous questions went unanswered in depositions taken from witnesses associated with the diocese.

Joanne L. Goulka, a lawyer for the diocese, told Judge Thayer Freemont-Smith that the 1972 report wasn't specifically requested and that defense lawyers had no reason to know whether the report might be relevant to the case. She said also that the earlier reports about O'Donaghue were made orally, and that no written reports were available.

Goulka said some questions in witness depositions were not answered to protect confidentiality between priests and therapists.

The judge took the motion for sanctions under advisement, but urged lawyers for both sides to prepare their cases for trial. A final pretrial hearing was set for Nov. 30.

Edward L. Gagne of Spencer filed the suit in 1994 charging he was sexually abused as a 13-year-old altar boy by the Rev. Brendan O'Donoghue in the rectory of Our Lady of the Rosary parish in Spencer. The assault was alleged to have occurred in 1978.

Gagne further alleged he was sexually assaulted in 1985 by the Rev. Peter J. Inzerillo when Inzerillo was vocation director for the Roman Catholic Diocese of Worcester and Gagne was considering entering the priesthood.

O'Donoghue and Inzerillo denied the allegations in depositions in connection with the lawsuit. O'Donoghue, Inzerillo and diocesan officials were named as defendants in the suit.

A stipulation of dismissal of the lawsuit, signed by lawyers for all parties, was filed Oct. 25 in Worcester Superior Court.

Lawyers Frank S. Puccio Jr., representing the diocese, and Paul P. O'Connor, representing Inzerillo, confirmed last week the case had been resolved, but declined further comment.

Stephen J. Lyons and Brian J. McMenimen, Gagne's lawyers, did not return a reporter's telephone calls.

Gagne declined to discuss the terms of the settlement