Summary
holding Pennsylvania refuses to recognize a cause of action alleging that the educational institution failed to provide a quality education
Summary of this case from Hickey v. Univ. of PittsburghOpinion
Civil Action No. 03-4012.
December 30, 2004
MEMORANDUM
Plaintiff, Valerie Manning, brings this action as a result of her dismissal as a student from Temple University's School of Medicine. Before the court is the motion of all named defendants for summary judgment.
Plaintiff has sued the following defendants: Temple University; Temple University School of Medicine; Richard J. Kozera, M.D.; Gerald H. Sterling, Ph.D; James P. Ryan, Ph.D; Thomas Marino, Ph.D; and Helen Pearson, Ph.D. The statutory claims which plaintiff is currently pursuing are brought under: (1) 42 U.S.C. § 1983; (2) 42 U.S.C. § 1981; (3) Title VI of the Civil Rights Act, 42 U.S.C. § 2000d; (4) The Pennsylvania Human Relations Act ("PHRA"), PA. STAT. ANN. tit. 43, § 951, et seq.; and (5) the Pennsylvania Fair Educational Opportunities Act ("PFEOA"), PA. STAT. ANN. tit. 24, § 5004. She also asserts common law claims against all defendants for: (1) intentional infliction of emotional distress; (2) breach of contract; (3) fraud/fraudulent misrepresentation/fraudulent concealment; (4) negligent misrepresentation; (5) negligence; and (6) breach of fiduciary duty.
Plaintiff has also named John Doe Nos. 1-25 as defendants. They are simply identified in the amended complaint as a group of employees of Temple University and Temple University School of Medicine.
Manning's amended complaint also alleged counts under: (1) 42 U.S.C. § 1985(3); (2) 42 U.S.C. § 1986; (3) The Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961, 1962(a)-(d); and (4) under the common law of civil conspiracy. She has now agreed to the entry of summary judgment in favor of the defendants on these claims.
Under Rule 56(c) of the Federal Rules of Civil Procedure, we may grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 254. We review all evidence and make all reasonable inferences from the evidence in the light most favorable to the non-movant. See Wicker v. Consol. Rail Corp., 142 F.3d 690, 696 (3d Cir. 1998). The non-moving party may not rest upon mere allegations or denials of the moving party's pleadings but must set forth specific facts showing there is a genuine issue for trial. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990).
I.
Viewing the record in the light most favorable to the plaintiff, the facts are as follows. Manning is an African-American female and, as noted above, a former student at Temple University School of Medicine ("medical school"). She began her first year as a medical student in September, 1999 during which time she failed Gross Anatomy and Neuroanatomy. At the end of her first semester in December, 1999, she took a leave of absence. She received a letter from the medical school notifying her that upon her return to school in September, 2000, she would be placed on academic probation and would be required to repeat her first year in its entirety. Although Manning did not verify the meaning of academic probation with anyone at the medical school and does not remember whether she referred to her student handbook for the definition, she knew that it "probably meant" that she "couldn't fail any courses."After returning to school for her repeat year, Manning continued to score poorly on her exams. By the end of that year she had failed Histology, Embryology, and Biochemistry, and had "conditioned" Physiology. Manning was curious about her grade of zero on her Embryology final exam, given that she had received a score of 82 in the course during her first year. Sometime around December, 2000, she attempted to meet with her Embryology professor, Dr. Thomas Marino, to discuss her exam performance, but, according to Manning, he "never agreed to meet with [her]."
Dr. Gerald Sterling, one of the defendants, has testified that a condition grade is "close to passing but not quite passing." While a "condition grade" is not a passing grade, it is less detrimental than a "fail grade" to a student's ability to be promoted to the next academic year.
Although Manning did not fail Neuroanatomy the second time around, she was having difficulties with this course during her repeat year. In approximately January, 2001, she met with her professor, Dr. Helen Pearson, to discuss her study habits. Dr. Pearson asked Manning whether she had visited the school's Recruitment, Admission, and Retention Office ("RAR"), which is a student support organization. Manning thought this advice was inappropriate because she believed that the RAR was designed primarily to support minority students and did not believe the RAR could assist her with her medical school courses. Dr. Pearson also advised plaintiff to study from her notes, rather than from index cards. As a result of using Dr. Pearson's advice, Manning passed Neuroanatomy.
In April or May, 2001, Manning met with her Biochemistry and Physiology professors, Dr. James Burke and Dr. James Ryan, respectively, to discuss her poor performance in those classes. Dr. Burke advised Manning to study from past exams because it would help her focus on what course material was important for final exam purposes. He asked her whether she had sought study advice from any other professors, and when she responded that she had previously met with Dr. Pearson, Manning states that Dr. Burke was surprised that Dr. Pearson did not suggest studying from old exams. Later that same week, while meeting with Dr. Ryan regarding her poor performance in Physiology, he agreed with Dr. Burke's advice regarding the use of past exams.
Manning initially found Dr. Pearson's advice helpful, and as pointed out above, passed Neuroanatomy as a result of utilizing Dr. Pearson's suggested method of study. Her impression of that advice changed, however, sometime in May, 2001, after speaking with a Caucasian student one year her senior, known to her only as Tracy. Tracy informed Manning that Dr. Pearson had advised her to study from past exams. Manning was "upset" to hear that Dr. Pearson had counseled Tracy to this effect but not her. She felt that while Dr. Pearson's advice about studying from her notes was beneficial when applied to Neuroanatomy, a course taken by itself during a specific time within the semester, it did not turn out to be beneficial for other classes that were taken in a group.
On or about June 8, 2001, Dr. Ryan notified Manning by e-mail that she would need to appear before the Student Promotions Committee ("SPC"), which he chairs. The SPC determines whether students will advance from one year to the next or be dismissed. Dr. Ryan requested a meeting with Manning to discuss the SPC proceedings. At her deposition, Manning testified that during this meeting, Dr. Ryan assured her that she would not be dismissed from medical school and would only have to retake some of her final exams. She asked Dr. Ryan whether she should appear before the SPC with an advocate. He discouraged her from bringing anyone who was not a professor. Instead, according to Manning, he offered to advocate on her behalf.
On June 27, 2001, Manning received a letter dated June 21, 2001 and signed by Dr. Gerald Sterling, the Assistant Dean for Medical Education, that said she was being considered for dismissal from the medical school because she had failed three courses and conditioned one course during her repeat year. The letter added that it was the medical school's policy for the SPC to consider a student for dismissal if, while on "academic probation . . . `during a repeat semester, a repeat year, or a repeat clerkship, the student receives a final grade of C or F for any Group I, II, or III course.'" Manning was informed that she could write a letter to Dr. Ryan, the Chairman of the SPC, appeal her dismissal under the guidelines and request an appearance before the SPC.
Manning timely submitted her appeal letter to Dr. Ryan. She explained that her poor performance was due to ineffective study methods and that she had recently discovered effective methods. Manning made no mention of Dr. Pearson's reference to the RAR or of any race discrimination or stereotyping. She simply noted that Dr. Pearson had advised her to study from her notes and that this study method worked well enough that she received a 90 on her Neuroanatomy final exam. She added that she had recently been advised by Drs. Burke and Ryan of the even more efficient method of studying from past exams and that, if she were allowed to retake them, she would do well. There was no adverse comment about Dr. Marino.
Manning appeared alone before the eight person SPC on July 5, 2001. The committee members were defendants Dr. Ryan, Dr. Pearson, and Dr. Sterling, and non-defendants Dr. John Harding, Dr. Inyanga Mack, Dr. Ronald Rubin, Dr. Dianne Soprano, and Dr. David Wald. During the meeting, which lasted about 10 minutes, Manning was given an opportunity to present her position against dismissal. She was then asked to leave the room while the SPC members deliberated. After 10 minutes of discussion, the SPC voted unanimously to dismiss her. Immediately following the vote, Dr. Ryan told Manning, who remained outside the room, of the SPC's action and of her right to appeal. At this time, he did not mention that the vote against her was unanimous.
On July 5, 2001, Manning received a letter from Dr. Sterling, the Assistant Dean for Medical Education, documenting the action taken by the SPC and outlining the process of appeal. The letter stated that "the promotional guidelines shall be upheld and the student shall be dismissed." It also contained the following excerpt from the Grading and Promotional Policy section of theStudent and Faculty Advisor Handbook:
F. Appealing Promotional Decisions
b. Appeal to the Dean — A student may appeal to the Dean the decision of the Student Promotions Committee . . . only for cause, i.e., procedural irregularity. An appeal on the basis of the Committee's judgment is not permitted.Process of Appeal
1) Within 10 days of the Student Promotions Committee's verbal response to the initial appeal the student must communicate to the Dean in writing the fact that s/he is appealing the Student Promotions Committee's decision and the basis for the appeal.
2) The Dean may resolve an appeal solely on the basis of the student's letter, or after meeting with the student, or after referring the matter back to the Student Promotions Committee. The Dean will overrule the decision of the Committee only because of improper procedure in hearing the initial appeal. The decision of the Dean will be communicated promptly in writing and may not be appealed further.
In the letter, Dr. Sterling also informed Manning that she should call him if the process was not clear to her.
Although the letter stated that the proper appeals procedure for Manning would require her to appeal directly to the Dean only for a procedural irregularity, the medical school's Student and Faculty Advisor Handbook outlined a different procedure for students in Manning's category:
3. Appealing Dismissal Decisions by the Student Promotions Committee when Student on Probation has received Condition or Fail Grade(s) Appeal to the Ad Hoc Appeals Committee — When in accordance with the requirements of Probation the Student Promotions Committee has "considered a student for dismissal" and acted to dismiss a student, the student may appeal this action to the Ad Hoc Appeals Committee either for cause or because of extenuating circumstance.
Procedural Irregularity — documented error in, or divergence from, the prescribed or customary process of evaluating and grading students. Extenuating Circumstances — severe and documented situations which were beyond the student's control and which prevented the student from performing in a manner truly reflective of his/her knowledge and skills.
Manning informed Dr. Ryan on July 6, 2001 that she intended to appeal her dismissal by the SPC. She asked him if he would write a letter of support to the Executive Dean, Dr. Richard Kozera, for her to include in her package of appeal materials. Manning states that Dr. Ryan agreed to do so. Later that same day, Manning picked up the letter from the Dean's office. She then e-mailed Dr. Ryan to request a copy of it. When he did not respond to her request over the weekend, she opened the sealed letter she had obtained because she wanted to review it prior to submitting it to Dean Kozera. The letter did not support Manning's appeal of her dismissal. Instead, it stated that its purpose was to "describe [Dr. Ryan's] role in [Ms. Manning's] interaction with the Committee." It noted that the vote in favor of dismissing Manning was unanimous. It went on to say that Manning was "inefficient in her approach to learning," and that, despite being given advice on her study habits, "her final exam performance showed little improvement." In the letter, Dr. Ryan admitted that he told Manning that he "would present her view to the Committee" and stated that he "served as her advocate." He also wrote that he had advised Manning that a letter of support would not be appropriate, but that he "would explain [his] actions leading up to [the meeting before the SPC]."
Manning did not submit Dr. Ryan's letter to Dean Kozera and instead obtained a letter of support from Dr. Burke, another one of her professors. She transmitted her appeal materials to Dean Kozera on July 10, 2001. In her letter, she explained that her failure in her various courses was due to inefficient study methods. Again, she did not mention Dr. Pearson's reference to the RAR or any race discrimination or race stereotyping on the latter's part. Nothing was said about Dr. Marino's giving her grade of zero on her Embryology final exam. Nor did she complain of Dr. Ryan's behavior with respect to her appeal.
On July 13, 2001, Manning met with Dean Kozera to discuss her appeal. Even though Manning had not transmitted it, the Dean had read Dr. Ryan's letter. On July 16, 2001, Manning received a letter from Dean Kozera informing her of his decision to uphold the SPC's decision to dismiss her from the medical school. He stated that he had reviewed her academic file, her letter, and the proceedings of the SPC and "determined that the promotional standards be upheld."
II.
We begin with a discussion of Manning's race discrimination claims against all defendants. Her amended complaint alleges that they violated the following statutes: (1) 42 U.S.C. § 1981, which generally prohibits discrimination on the basis of race in the making or enforcement of a contract; (2) Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, which prohibits race discrimination with respect to participation in programs receiving Federal financial assistance; (3) the PHRA, PA. STAT. ANN. tit. 43, § 951 et seq., which forbids race discrimination by public colleges and universities, among other things; and (4) the PFEOA, PA. STAT. ANN. tit. 24, § 5004, which generally prohibits discrimination on the basis of race with respect to educational opportunities within the Commonwealth.
Whether a plaintiff has made out a claim for racial discrimination is essentially the same whether the claim is brought under section 1981, Title VI, or the PHRA. See Pryor v. National Collegiate Athletic Ass'n, 288 F.3d 548, 569 (3d Cir. 2002); Pamintuan v. Nanticoke Mem. Hosp., 192 F.3d 378, 385 (3d Cir. 1999); Hankins v. Temple Univ., Civ. A. No. 86-1148, 1987 WL 8818, at *1 (E.D. Pa. March 31, 1987). While we have found no case discussing the subject with respect to the PFEOA, we see no reason why the analysis would be different with respect to it.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the United States Supreme Court outlined the formula for making out a prima facie case of race discrimination in employment. This formula has been adapted for the educational context and requires the plaintiff to prove that "(1) she is a member of a protected class; (2) she suffered an adverse action at the hands of the defendants in her pursuit of her education; (3) she was qualified to continue in her pursuit of her education; and (4) she was treated differently from similarly situated students who are not members of the protected class."Bell v. Ohio State Univ., 351 F.3d 240, 252-53 (6th Cir. 2003).
In support of her claims, Manning alleges that: (1) Dr. Marino gave her a grade of zero during her repeat year on her Embryology exam despite her having passed the course in the previous year; (2) Dr. Marino refused to meet with her to discuss her grade of zero; (3) Dr. Pearson failed to give her study advice that was given to a Caucasian student named Tracy; (4) Dr. Pearson asked her whether she had spoken to anyone from the RAR office, an office that Manning believes is primarily designed to support minority students; (5) Dr. Ryan claimed to be her advocate, yet voted in favor of her dismissal and wrote a letter unsupportive of her to be submitted to Dean Kozera; (6) Drs. Ryan and Sterling misrepresented her appeal rights; (7) Dr. Kozera improperly accepted a direct appeal from the SPC rather than one from the Ad Hoc Committee; (8) an organization known as the Student Progress Committee failed to identify her academic difficulties and monitor her progress as outlined in the Student and Faculty Advisor Handbook; and (9) all of the defendants failed to support her properly and provide her with the assistance necessary to complete successfully her medical school education because of their "antipathy toward the RAR program and the students admitted through that program."
Simply put, none of the evidence before us, taken separately or together, establishes a prima facie case of racial discrimination. Manning cannot satisfy the third and fourth elements of the McDonnell test, as applied in the educational setting. Manning has not come forth with evidence that she is qualified to continue in pursuit of her medical education. She failed two courses in the first semester of her first year, took a leave of absence, and then returned to fail three more courses and to condition a fourth. Assuming, however, that Manning was capable of passing these courses but for her ineffective study habits, she cannot establish that she was treated differently from similarly situated students who were not members of a protected class. The only purported evidence on this point is her testimony that a Caucasian student named Tracy, whose last name is unknown, was given good study advice by Dr. Pearson that was not given to her. Tracy has not been deposed and the record does not contain any affidavit from her. The evidence we may consider on a motion for summary judgment is limited to evidence that would be admissible at trial. Blackburn v. United Parcel Serv. Inc., 179 F.3d 81, 95 (3d Cir. 1999) (citation omitted). The introduction of Tracy's statement through Manning would be inadmissible hearsay. Thus, we cannot consider anything Tracy may have told Manning about what Dr. Pearson told her. Furthermore, Manning has not come forth with any proof that any of the other defendants treated her differently than similarly situated non-African American students.
Manning belatedly attempts to argue that she was a victim of racial stereotyping. This eleventh-hour argument surfaced for the first time in her brief in opposition to the defendants' motion for summary judgment. She claims that her "claim is not that the faculty harbored a discriminatory animus towards all African-Americans, but rather towards those who performed poorly whom they believed were improperly admitted to the medical school in the first instance by virtue of the RAR program." This argument is totally without merit. There is simply nothing in the record to support it.
Accordingly, Manning's claims of racial discrimination under § 1981, Title VI, the PHRA, and the PFEOA, have no factual basis.
III.
We next consider Manning's claims under § 1983 for due process and equal protection violations. Section 1983 provides a cause of action for "any person who has been deprived of rights secured by the Constitution or laws of the United States by a person acting under color of law." Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). It is undisputed that Temple University and its professors are state actors. Molthan v. Temple Univ., 778 F.2d 955, 961 (3d Cir. 1985).
Manning alleges that the defendants violated her right to equal protection of the laws, as secured by the Fourteenth Amendment to the Constitution. "The Equal Protection Clause provides that no state shall `deny to any person within its jurisdiction the equal protection of the laws.'" Artway v. Attorney Gen. of State of New Jersey, 81 F.3d 1235, 1267 (3d Cir. 1996) (quoting U.S. Cons. amend. XIV § 1.) This is "a direction that all persons similarly situated should be treated alike."City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). A plaintiff must allege facts that "a similarly situated person . . . was treated differently." Nichelson v. Redwine, Civ. A. No. 99-1769, 2000 WL 1599246, at *3 (E.D. Pa. Oct. 26, 2000) (citing Artway, 81 F.3d at 1267).
As we have previously stated, Manning has failed to provide any evidence that she was treated differently than other similarly situated persons. With respect to the defendants other than Dr. Pearson, she does not even attempt to argue differential treatment. Moreover, as noted above, the statement that Dr. Pearson gave a Caucasian student named Tracy beneficial study advice not given to her is inadmissible hearsay that cannot be considered in opposition to a motion for summary judgment.Blackburn, 179 F.3d at 95. As such, Manning's Equal Protection claim under § 1983 must fail.
Manning further argues that the defendants violated her substantive due process rights to property under the Fourteenth Amendment. The substantive due process protection of the Fourteenth Amendment prohibits those acting under color of state law from taking away a person's property interest for reasons that are "arbitrary, irrational, or tainted by improper motive."Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 139 (3d Cir. 2000) (citation omitted). The property interest must be one that is considered fundamental under the United States Constitution. Id. at 140 (citations omitted). The Supreme Court has never held that an interest in the continuation of one's medical school education is a fundamental property interest. In several decisions, it has merely assumed, without deciding, the existence of such a constitutionally protectible property right in continued enrollment in medical school. E.g., Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 223 (1985); Board of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 91-92 (1978). Our Court of Appeals has "so far limited non-legislative substantive due process review to cases involving real property ownership." Nicholas, 227 F.3d at 141. Consequently, Manning's dismissal from the medical school does not violate substantive due process.
Manning's final argument under § 1983 is that the defendants infringed her procedural due process rights. To succeed on this claim she must show that a protected property interest was involved, and that the procedural safeguards surrounding the deprivation were inadequate. Board of Regents v. Roth, 408 U.S. 564, 568-69 (1972). The property analysis for procedural due process is separate and distinct from such an analysis for substantive due process. Nicholas, 227 F.3d at 140. For purposes of procedural due process, we look to state law to determine whether a property interest exists. Roth, 408 U.S. at 577. Under Pennsylvania law, it has been held that a graduate student has a property interest protected by procedural due process in the continuation of her course of study. Ross v. Pennsylvania State Univ., 445 F. Supp. 147, 152 (M.D. Pa. 1978).
Accordingly, procedural due process attaches to an academic dismissal. Nonetheless, the Supreme Court has held that significant flexibility exists in the procedures required to satisfy procedural due process under this circumstance.Horowitz, 435 U.S. at 86. Procedural safeguards are adequate if the student is notified of her impending dismissal, if the student can engage in an "informal give-and-take" with the administrative body dismissing her, and if the decision to dismiss the student is "careful and deliberate." Id. at 84-85;Mauriello v. The Univ. of Medicine and Dentistry of New Jersey, 781 F.2d 46, 50 (3d Cir. 1986).
Manning argues that the procedures afforded to her were inadequate. She asserts that Dr. Sterling and Dr. Ryan did not advise her of her right to appeal to an Ad Hoc Committee before appealing to the Dean as described in the Student and Faculty Advisor Handbook. Furthermore, she maintains that Dr. Ryan acted with duplicity and that the SPC's decision to dismiss her was predetermined without consideration of her academic record or the arguments she presented.
Not every deviation by a university from its established regulations violates procedural due process. E.g., Bates v. Sponberg, 547 F.2d 325, 329-30 (6th Cir. 1976); Winnick v. Manning, 460 F.2d 545, 550 (2d Cir. 1972). Only significant and unfair departures do so. See Jones v. Bd. of Governors of Univ. of North Carolina, 704 F.2d 713, 717 (4th Cir. 1983) (citingUnited States v. Caceres, 440 U.S. 741, 752-53 n. 15 (1979)). However, no such departure occurred here. Although Manning may not have been given an opportunity to appeal the SPC's decision to an Ad Hoc Committee, she ultimately had the benefit of an "informal give-and-take" session with Dean Kozera. He was the final arbiter of whether she would be dismissed, and decisions of the Ad Hoc Committee would only be advisory to him. Manning has presented no evidence that Dean Kozera's decision was not "careful and deliberate." In addition to meeting with her, he considered her "academic file, the proceedings of the Student Promotions Committee, and [her] letter to [him]."
Dr. Ryan's actions, even if we accept Manning's version, do not constitute a violation of procedural due process. He informed Dean Kozera that he "served as [Ms. Manning's] advocate, even though [he] was also a member of the [SPC]," and that he voted for her dismissal. Thus, Dean Kozera was made fully aware of any potential taint in the proceedings before the SPC and was able to weigh Dr. Ryan's actions against the overwhelming evidence of Manning's poor academic record.
Manning's argument that the SPC's decision to dismiss her was predetermined and made without reference to her academic record is completely without merit. If she were correct, it is strange that she only names three of the eight members of the SPC as defendants in this action. More significantly, it is undisputed that she failed five courses and conditioned a sixth. In light of these facts, her assertion that the SPC did not consider her academic record is totally implausible.
In sum, the procedural standards enumerated by the Supreme Court for processing Manning's academic dismissal were satisfied.
IV.
Manning brings a claim under state law against all defendants for intentional infliction of emotional distress. Yet, she only points to proof of Dr. Ryans's alleged duplicitous conduct in support of her claim.
A necessary element of this cause of action is that the defendant's conduct be "extreme and outrageous." Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979). In defining extreme and outrageous conduct, the RESTATEMENT (SECOND) OF TORTS § 46 cmt. d provides:
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an averages member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"
"[A] court must make the initial determination of whether a defendant's conduct was so extreme and outrageous that recovery may be justified." Small v. Juniata College, 682 A.2d 350, 355 (Pa.Super.Ct. 1996). After a review of relevant cases, we conclude that Manning cannot establish extreme and outrageous conduct. Only in the most extraordinary circumstances has conduct been considered extreme and outrageous by the courts of Pennsylvania. For example, in Papieves v. Lawrence, 263 A.2d 118 (Pa. 1970), extreme and outrageous conduct was found where the defendant struck and killed plaintiff's son and hid the body in his garage. After a few days, the defendant placed the body in a hand-dug grave. Plaintiff was not aware of his son's whereabouts until the partially decomposed remains were found and returned to him.
In Jones v. Nissenbaum, Rudolph and Seidner, 368 A.2d 770 (Pa. 1976), the defendant's conduct, while deplorable, did not rise to the level of extreme and outrageous conduct. In that case, a law firm hired a credit card company to inform plaintiffs that their home would be sold to satisfy their debts. The law firm knew that the sale could not lawfully be conducted absent a hearing.
Manning's situation is more analogous to that in Jones. As stated above, while we agree that Dr. Ryan's alleged conduct, if true, should be condemned, we cannot say that it extends beyond all bounds of decency. To hold otherwise would transform every misrepresentation and misdeed into an action for intentional infliction of emotional distress in clear derogation of the narrow scope accorded this tort.
V.
In addition, Manning claims that all of the defendants were in a fiduciary relationship with her and that they breached their respective duties. In Pennsylvania, a fiduciary duty arises out of a confidential relationship where "the parties do not deal on equal terms, but, on the one side there is overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed." Frowen v. Blank, 425 A.2d 412, 416-17 (Pa. 1981). "The essence of such a [confidential] relationship is trust and reliance on one side, and a corresponding opportunity to abuse that trust for personal gain on the other." In re Estate of Scott, 316 A.2d 883, 885 (Pa. 1974); Basile v. HR Block, 777 A.2d 95, 101 (Pa.Super.Ct. 2001) (citing Estate of Scott). In essence, the dominant party may not use his or her position to harm the subordinate party to the dominant party's "own advantage." Young v. Kaye, 279 A.2d 759, 763 (Pa. 1971).
Pennsylvania law holds that a per se fiduciary relationship exists between trustee and beneficiary, guardian and ward, attorney and client, and principal and agent. Basile, 777 A.2d at 102. It also recognizes that the facts and circumstances in other situations may give rise to such a relationship. See, e.g., Frowen, 425 A.2d at 418; Basile, 777 A.2d at 102. However, the parties have not called to our attention any Pennsylvania case which has ruled that a graduate school or its professors owe any fiduciary duties to graduate students. Cf., Chou v. Univ. of Chicago, 254 F.3d 1347, 1362-63 (Fed. Cir. 2001).
In any event, in order to breach a fiduciary duty, the dominant party must act for his or her own personal gain or to his or her own advantage. That has not occurred here. There is nothing in the record to indicate that any of the defendants had "an opportunity to abus. . . [any] trust for personal gain."Estate of Scott, supra. All Manning can suggest is that their personal gain or advantage was the satisfaction in seeing her dismissed. Besides the total lack of evidence on this score, we reject the notion that such motivation constitutes personal gain or advantage as articulated in Estate of Scott, supra orYoung, supra. Whatever else personal gain or advantage may be, it does not include the nefarious pleasure one may obtain from observing another person fail.
Plaintiff cannot prevail on her breach of fiduciary duty claim.
VI.
Manning also asserts a claim against all defendants for "fraud/fraudulent misrepresentation/fraudulent concealment." To prove either fraud or fraudulent misrepresentation, a plaintiff must provide clear and convincing evidence of "(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance." Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994). The elements of fraudulent concealment are identical except that the wrongdoer intentionally conceals a material fact rather than making an affirmative misrepresentation. Id. at 889 n. 12.
Manning first asserts that Dr. Ryan misrepresented that the SPC proceedings would not result in dismissal and that he would serve as her advocate in the SPC proceedings. While the breach of a promise to do something in the future is not a proper basis for a cause of action for fraud or fraudulent misrepresentation,Krause v. Great Lakes Holdings, Inc., 563 A.2d 1182, 1187 (Pa. 1989), "[a] statement of present intention which is false when uttered may constitute a fraudulent misrepresentation of fact."Brentwater Homes, Inc. v. Weibley, 369 A.2d 1172, 1175 (Pa. 1977). Mere non-performance of a promise, however, does not by itself prove a lack of present intent. Fidurski v. Hammill, 195 A. 3, 4 (Pa. 1937). In order to defeat a motion for summary judgment, a plaintiff must point to evidence in the record that creates a genuine issue of the defendant's fraudulent present intention. Mellon Bank Corp. v. First Union Real Estate Equity and Mortgage Investments, 951 F.2d 1399, 1409-10 (3d Cir. 1991) (citations omitted).
Dr. Ryan's statements regarding the outcome of the SPC proceedings and his serving as Manning's advocate are promises of future actions. She presents no evidence that Dr. Ryan had fraudulent intentions at the time he allegedly agreed to serve as her advocate and allegedly promised that the SPC proceedings would not result in her dismissal.
Manning also asserts that Dr. Ryan and Dr. Sterling informed her of an appeals process that denied her right to appeal to an Ad Hoc Committee. In addition, she asserts that she was not advised of the correct grounds upon which her appeal could be reviewed. With respect to these allegations, Manning fails to meet two essential elements of fraud, fraudulent misrepresentation, or fraudulent concealment — that there was justifiable reliance on the statement or omission and that there was a resulting injury proximately caused by the reliance.Gibbs, 647 A.2d at 889 n. 12.
First, if "common prudence or diligence" could have ascertained the truth, the reliance is not justified. In Reimer v. Tien, 514 A.2d 566 (Pa.Super.Ct. 1986), a medical student brought a cause of action against her medical school alleging fraudulent misrepresentation because, among other things, prior to her matriculation the school represented that the size of classes was thirty students when in fact many contained as much as two hundred students. The court found that her reliance was not justified because she had received school brochures depicting classrooms with numerous chairs, and thus should have realized the discrepancy. The same reasoning applies here. Manning received a copy of the Student and Faculty Advisor Handbook that explained the appeals process in detail. In his letter of July 5, 2001, in which he officially notified her of her right to appeal the decision of the SPC, Dr. Sterling stated that the letter contained an "excerpt from the Grading and Promotional Policy . . . [which was] abstracted." Thus, Manning was put on notice that the information contained in the letter may not have been complete. Given the importance of what was at stake, Manning failed to exercise the appropriate prudence or diligence when complete information on the appeals process was detailed in her student handbook.
Moreover, Manning has not shown how she was proximately injured by being informed of an appeals process different than that which may have technically applied to her. The bottom line is that Manning had the opportunity to present all the facts as well as all her arguments to Dean Kozera.
In sum, Manning has not presented evidence to establish fraudulent intent, justifiable reliance, or injury with respect to her claims of "fraud/fraudulent misrepresentation/fraudulent concealment."
VII.
Manning alleges that the defendants breached their contract with her "by failing to follow the terms and conditions of the Handbook [with respect to her appeal rights] . . ., and more generally by failing to provide [her] with a medical education."
To sustain a claim for breach of contract, a plaintiff must prove: "(1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damages." CoreStates Bank, Nat'l Ass'n v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.Ct. 1999). Manning argues that the Student and Faculty Advisor Handbook represents a part of her contract with the medical school that obligates the defendants to conform to certain procedures regarding dismissal appeals. The first page of the handbook, however, states that "[t]he rules, regulations, and information provided in this handbook are announcements only and in no way serve as a contract between the student and Temple University." Manning therefore cannot prove the existence of a contract between her and the medical school which obligates it or any of the defendants to conform to certain specific procedures before she may be dismissed.
Manning further maintains that the defendants breached their contractual duty to provide her with a medical education. Specifically, she argues that the "faculty failed and refused to honor their contractual obligations to teach [her]." Pennsylvania refuses "to recognize a general cause of action . . . where the allegation is simply that the educational institution failed to provide a quality education." Swartley v. Hoffner, 734 A.2d 915, 918 (Pa.Super.Ct. 1999). Although a cause of action for breach of contract may lie if a student is provided with no instruction at all, or if the university promises to offer a particular curriculum and fails to do so, none of these situations is present. See id.; Cavaliere v. Duff's Bus. Inst., 605 A.2d 397, 404 (Pa.Super.Ct. 1992).
Manning's breach of contract claim falls short of the mark.
VIII.
Finally, Manning asserts a claim against all defendants for negligence and negligent misrepresentation based upon the same allegations she presents in support of her fraudulent misrepresentation claim. Negligence and negligent misrepresentation are premised "on the existence of a duty owed by one party to another." Gibbs v. Ernst, 647 A.2d 882, 890 (Pa. 1994). Furthermore, negligent misrepresentation, like fraudulent misrepresentation, requires that a plaintiff justifiably rely on a misrepresentation and suffer injury as a result. Id. Manning has simply not presented evidence that any of the defendants failed her with respect to any such duty recognized by law.
IX.
When all is said and done, it is undisputed that Manning failed five courses and conditioned one course while a student at Temple University's School of Medicine. The School, after notice and at the very least a fair hearing before the Dean, dismissed her because of poor academic performance. No legal theories that have been advanced, whether predicated on federal or state law, can mask this unfortunate reality. Accordingly, we will grant the motion of all the named defendants for summary judgment in its entirety and dismiss the complaint as to the unidentified defendants John Doe Nos. 1-25. See Rodirguez v. City of Philadelphia, Civ. A. No. 94-1450, 1996 WL 180015, at *2 (E.D. Pa. Apr. 15, 1996); Boone v. Domalakes, Civ. A. No. 94-3293, 1995 WL 519703, at * 2 (E.D. Pa. Aug. 30, 1995).
ORDER
AND NOW, this 30th day of December, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the motion of defendants Temple University, Temple University School of Medicine, Richard J. Kozera, M.D., Gerald H. Sterling, Ph.D., James P. Ryan, Ph.D., Thomas Marino, Ph.D., and Helen Pearson, Ph.D. for summary judgment is GRANTED;
(2) judgment is entered in favor of defendants Temple University, Temple University School of Medicine, Richard J. Kozera, M.D., Gerald H. Sterling, Ph.D., James P. Ryan, Ph.D., Thomas Marino, Ph.D., and Helen Pearson, Ph.D. and against plaintiff Valerie Manning; and
(3) the complaint as to defendants John Doe Nos. 1-25 is DISMISSED.