CASTELLUCCI v. HARCUM COLLEGE

Filing 6

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 5/2/2016. 5/3/2016 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARY CASTELLUCCI

CIVIL ACTION

v.
NO. 16-00073

HARCUM COLLEGE

MEMORANDUM RE: DEFENDANT’S MOTION TO DISMISS
Baylson, J.

May 2, 2016

Defendant Harcum College (“Harcum”) moves for partial dismissal of plaintiff Mary
Castellucci’s (“Ms. Castellucci”) complaint in this lawsuit alleging, inter alia, violations of the
Americans with Disabilities Act of 1990 (“ADA” or the “Act”).
I. PROCEDURAL HISTORY
Ms. Castellucci filed her complaint (the “Complaint”) on January 8, 2016. (Compl.,
ECF 1). Ms. Castellucci’s five-count Complaint alleges: (1) violations of Section 506 of the
Rehabilitation Act of 1973; (2) violation of the ADA; (3) breach of contract; (4) intentional
infliction of emotional distress; and (5) violation of “due process.” (Compl. ¶¶ 43-79).
Harcum filed the present Motion to Dismiss Counts IV and V under Federal Rule of Civil
Procedure (“Rule”) 12(b)(6) on March 14, 2016. (Def.’s Mot. to Dismiss (“Def.’s Br.”), ECF 4).
Ms. Castellucci filed a response in opposition on March 23, 2016. (Pl.’s Response to Def.’s Mot.
to Dismiss (“Pl.’s Opp’n”), ECF 5). Harcum did not file a reply in further support. For the
following reasons, the Court will grant Harcum’s motion and dismiss Ms. Castellucci’s claims
for intentional infliction of emotional distress without prejudice with leave to amend, and for
violation of due process with prejudice.

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II. FACTUAL ALLEGATIONS
Ms. Castellucci began her education at Harcum’s Veterinary Technology program in the
fall of 2014. (Compl. ¶¶ 6-7). On August 28, 2014, Ms. Castellucci notified the administration
at Harcum that she was a student with a disability. (Compl. ¶ 8). In support, Ms. Castellucci
provided Harcum with a letter from her treating psychiatrist, Dr. Solange Margery, documenting
her symptoms, her required treatment, and indicating the impact her psychological disability
would have on her academic performance. (Compl. ¶ 8).
For the fall 2014, Ms. Castellucci received accommodations, including “short breaks”
and “excused absences,” but no testing accommodations. (Compl. ¶¶ 10-11). For the spring
2015 semester, Ms. Castellucci received testing accommodations, including “time and a half”
and “quiet area” accommodations, but not classroom accommodations. (Compl. ¶¶ 13-14). In
her Complaint, Ms. Castellucci alleges that she thought these spring testing accommodations
were in addition to, and not a replacement for, her previous fall 2014 classroom
accommodations. (Compl. ¶¶ 15-16).
On February 12, 2015, Ms. Castellucci attended a meeting with Julia Ingersoll, Kathy
Koar (“Ms. Koar”), Dr. Richard Cooper (“Dr. Cooper”), 1 Alicia Preston, and Koyuki Kip to
discuss Harcum “staff concerns.” (Compl. ¶ 22). At this meeting, Ms. Castellucci discussed
with the foregoing staff her frequent absences and difficulty remaining the classroom for the
entire class period. (Compl. ¶ 24). On March 2, 2015, Ms. Castellucci received a letter
acknowledging her anxiety problems and inviting Ms. Castellucci to explore programs other than
the Veterinary Technology program. (Compl. ¶ 26).

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Dr. Cooper is the Director of Disability Services at Harcum’s Disability Services Center. Disability
Support Services, http://www.harcum.edu/s/1044/edu/index.aspx?pgid=1008 (last visited Apr. 28, 2016).

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In the summer of 2015, Ms. Castellucci participated in an internship at Red Bank
Veterinary Hospital (“Red Bank”) under the supervision of Janet McConnell (“Ms.
McConnell”). (Compl. ¶ 29). Ms. Castellucci informed Ms. McConnell of her disability and
concomitant need to take frequent breaks. (Compl. ¶ 30). Ms. McConnell indicated to Ms.
Castellucci that her disability and frequent breaks would not be an issue. (Compl. ¶ 30). When
the internship was completed, Ms. Castellucci was notified that her attendance was required at a
meeting with the director of the internship program, Ms. Koar. (Compl. ¶ 32). On September 2,
2015, Ms. Castellucci met with Ms. Koar and a number of other Harcum staff, but none of the
staff including representatives from Harcum’s student disability services. (Compl. ¶¶ 33-34).
At the September meeting, Ms. Castellucci received “negative feedback” about her
internship at Red Bank because of her accommodations, viz. her taking frequent breaks. (Compl.
¶ 36). At this meeting Ms. Castellucci was informed that her accommodations prohibited her
from completing the Veterinary Technology program, and she was advised to withdraw.
(Compl. ¶ 39). No formal process aside from this meeting was provided to remove Ms.
Castellucci from the Veterinary Technology program, nor was a representative from Harcum’s
Disability Services Center present to advise Ms. Castellucci of her rights as a student with a
disability. (Compl. ¶ 40). Ms. Castellucci alleges that, for approximately one week following
the September meeting, she suffered extreme anxiety, was unable to attend classes, and
ultimately withdrew from the Veterinary Technology program. (Compl. ¶ 41).
III. JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction over Plaintiff’s federal claims pursuant to 28 U.S.C. § 1331.
The Court notes that Ms. Castellucci has not demonstrated venue is proper in this district
pursuant to 28 U.S.C. § 1391(b). (However, Harcum did not move to dismiss for improper

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venue pursuant to Rule 12(b)(3). Therefore, according to Rule 12(h), which states that the
defense of improper venue is waived “if it is neither made by motion under this rule nor included
in a responsive pleading,” Harcum has waived its defense as to improper venue. FED.R.CIV.P.
12(h)(1). Accordingly, the Court will proceed in making a determination as to Harcum’s partial
motion to dismiss under Rule 12(b)(6).
When deciding a motion to dismiss under Rule 12(b)(6), the Court may look only to the
facts alleged in the complaint. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir.1994). The Court must accept as true all well-pleaded allegations in the complaint
and view them in the light most favorable to the plaintiff. Angelastro v. Prudential–Bache Sec.,
Inc., 764 F.2d 939, 944 (3d Cir.1985).
A valid complaint requires only “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED.R.CIV.P. 8(a)(2). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Iqbal clarified that the
Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) “expounded the
pleading standard for ‘all civil actions.’” Iqbal, 556 U.S. at 684.
The Court in Iqbal explained that, although a court must accept as true all of the factual
allegations contained in a complaint, that requirement does not apply to legal conclusions;
therefore, pleadings must include factual allegations to support the legal claims asserted. Id. at
678, 684. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555); see also
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir.2008) (“We caution that without
some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she

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provide not only ‘fair notice,’ but also the ‘grounds’ on which the claim rests.” (citing Twombly,
550 U.S. at 556 n.3). Accordingly, to survive a motion to dismiss, a plaintiff must plead “factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). To evaluate
whether a plaintiff has met this standard the Third Circuit has instructed:
First, the court must take note of the elements a plaintiff must
plead to state a claim. Second, the court should identify allegations
that, because they are no more than conclusions, are not entitled to
the assumption of truth. Finally, where there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for
relief.
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir.2010) (citations, alteration, footnote,
and internal quotation marks omitted). In doing so, the court must “also disregard ‘naked
assertions devoid of further factual enhancement.’” Id. at 131 (quoting Iqbal, 556 U.S. at 678).
IV. DISCUSSION
Harcum moves to dismiss Counts IV and V alleging intentional infliction of emotional
distress and violation of due process, respectively. The Court takes each claim in turn.
A. Intentional Infliction of Emotional Distress
To recover for the Pennsylvania tort of intentional infliction of emotional distress, a
plaintiff must demonstrate that the defendant’s conduct was: (1) extreme and outrageous;
(2) intentional or reckless; and (3) the cause of severe or emotion distress to the plaintiff.
Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Cmmw. Ct. 2010). “The [defendant’s] conduct
must be 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 society.”
Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988); see also Barnett v. Sch. Dist. of

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Lancaster, No. 14-2414, 2015 WL 1312730, at *13 (E.D. Pa. Mar. 24, 2015). In addition, under
Pennsylvania law, a plaintiff must demonstrate that he or she suffered “some type of resulting
physical harm due to the defendant’s outrageous conduct.” Swisher v. Pitz, 868 A.2d 1228, 1230
(Pa. Super. Ct. 2005) (quoting Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1122-23
(Pa. Super. Ct. 2004); see also Hallman v. Dep’t of Human Servs., 630 Fed. App’x 123, 127 (3d
Cir. 2015). 2
Ms. Castellucci alleges that she suffered from “severe emotional damage” due to Harcum
holding a meeting during which its agents “acted outrageously by bombarding an emotionally
fragile individual.” These allegations fail to amount to conduct that “go[es] beyond all bounds of
decency” such that it is “utterly intolerable in a civilized society.” Hoy, 720 A.2d at 754.
Furthermore, Ms. Castellucci failed to allege that she suffered from any physical injury as a
result of the outrageous conduct. Because Ms. Castellucci challenged the physical injury
requirement (a challenge this Court hereby rejects), the Court dismisses Ms. Castellucci’s claim
for intentional infliction of emotional distress with leave to replead. 3
B. Violation of the Due Process Clause of the United States Constitution
Harcum also moves to dismiss Ms. Castellucci’s claim for violation of “due process.” In
her opposition to Harcum’s motion, Ms. Castellucci defends the claim as one grounded in
contract rather than in the constitutional safeguards of due process. (Pl.’s Opp’n 7-8). Thus, Ms.
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Ms. Castellucci denies that pleading physical harm is a requirement under Pennsylvania law. There is at
least one case in this District that would support that contention. See Ricker v. Weston, No. 99-5879, 2000 WL
1728506, at*5 n.17 (E.D. Pa. Nov. 21, 2000), reversed on other grounds by 27 Fed. App’x 113 (3d Cir. 2002).
However, the weight of authority from the intermediate appellate courts in Pennsylvania that intentional infliction of
emotional distress requires a showing of physical injury. See, e.g., Fewell v. Besner, 664 A.2d 577, 582 (Pa. Super.
Ct. 1995); Hart v. O’Malley, 647 A.2d 542, 554 (Pa. Super. Ct. 1994). Similarly, courts in this Circuit require
physical injury. See, e.g., Short v. Chief Shawn Payne & Officer Parker, No. 15-5873, 2016 WL 1594791, at *4
(E.D. Pa. Apr. 20, 2016); Finn v. Porter’s Pharm., No. 15-661, 2015 WL 5098657, at *5 (W.D. Pa. Aug. 31, 2015)
(collecting cases).
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The Court notes, nevertheless, that Ms. Castellucci should take care in deciding whether or not to replead
her claim for intentional infliction of emotional distress, as her current allegations fall far short of what is required to
successfully plead this tort.

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Castellucci’s argument implicitly acknowledges that Harcum’s position is correct. Harcum has
challenged Ms. Castellucci’s claim on the basis that Harcum, as a private institution, cannot
satisfy the requirement under § 1983 that the defendant be a state actor. The Court agrees.
Section 1983 provides that “[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen . . . or other
person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. “To establish liability under 42
U.S.C. § 1983, a plaintiff must show that the defendants, acting under color of law, violated the
plaintiff’s federal constitutional or statutory rights, and thereby caused the complained of injury.”
Ellmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2004). In this case, Ms. Castellucci asserts a
procedural due process claim for deprivation of a property interest in the continuation of her
studies in the Veterinary Technology program.
To state a procedural due process claim, a plaintiff must allege “[s]he was deprived of an
individual interest that is encompassed within the Fourteenth Amendment’s protection of life,
liberty, or property, and (2) the procedures available to [her] did not provide due process of law.”
Hammond v. Chester Upland Sch. Dist., No., 2014 WL 4473726, at *6 (E.D. Pa. Sept. 9, 2014)
(alterations in original) (quoting Iles v. de Jongh, 638 F.3d 169, 173 (3d Cir. 2011)). For
purposes of procedural due process, courts look to state law to determine whether a property
interest exists. Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008).
Harcum cites Borrell v. Bloomsburg University, 955 F. Supp. 2d 390, 402 (M.D. Pa.
2013), in support of its contention that it is not a “state actor” for purposes of § 1983 as it is a
private and not public institution. (Def.’s Br. 5-6). In Borrell, the district court denied the
defendants’ motion to dismiss the student plaintiff’s due process property interest claim because

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it determined the student adequately pleaded “the deprivation of her property interest in the
continuation of her course of study.” Borrell, 955 F. Supp. 2d at 404. In so finding, the district
court relied upon a series of cases that addressed the due process rights of students in state
operated institutions. See id. Furthermore, in stating that “[c]ourts in the Third Circuit have
repeatedly recognized that a graduate student has a property interest protected by procedural due
process in the continuation of his or her course of study under Pennsylvania law,” the district
court only cited cases in which the defendant institution was state operated. Borrell, 955 F.
Supp. 2d at 402. 4
In further support of its argument, Harcum cites Tran v. State System of Higher
Education, 986 A.2d 179. 183 (Pa. Commw. Ct. 2009), which stated “Pennsylvania courts have
held consistently that the relationship between a student and a privately funded college is
“strictly contractual in nature.” Id. (quoting Reardon v. Allegheny Coll., 926 A.2d 477, 480 (Pa.
Super. Ct. 2007)). This Court has followed and recognized this principle. Harris v. Saint
Joseph’s Univ., No. 13-3937, 2014 WL 1910242, at *6 (E.D. Pa. May 13, 2014) (Restrepo, J.).
Ms. Castellucci fails to distinguish any of the foregoing cases, and in fact admits that this
claim is for “the procedural violations of the breach and the breach of implied duties of
Defendant agents.” (Pl.’s Opp’n 8). As noted above, this position implicitly recognizes that the
relationship between Ms. Castellucci and Harcum is of a contractual nature. Accordingly, the
Court will dismiss Ms. Castellucci’s claim for violation of due process with prejudice.
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Valentine v. Lock Haven Univ. of Pennsylvania of the State Sys. Higher Educ., 2014 WL 3508257, at *8
(M.D. Pa. July 14, 2014) (involving Lock Haven University, one of the 14 state universities that compose the
Pennsylvania State System of Higher Education (“PASSHE”)); Coulter v. East Stroudsburg Univ., No. 10-0877,
2010 WL 1816632, at *2 (M.D. Pa. May 5, 2010) (involving East Stroudsburg University of Pennsylvania, a
PASSHE member university); Manning v. Temple Univ., No. 03-4012, 2004 WL 3019230, at *1 (E.D. Pa. Dec. 30,
2004) (involving Temple University, a “state-related” research university under the Commonwealth System of
Higher Education); Stoller v. College of Med., 562 F. Supp. 403, 404 (M.D. Pa. 1983) (involving the College of
Medicine of the Milton S. Hershey Medical Center, a division of the Pennsylvania State University); Ross v.
Pennsylvania State Univ., 445 F. Supp. 147, 154 (M.D. Pa. 1978) (involving Pennsylvania State University, a
public, state-related research university).

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V. CONCLUSION
For the foregoing reasons, the Court dismisses Ms. Castellucci’s claims for intentional
infliction of emotional distress without prejudice, and violation of due process with prejudice.
An appropriate Order follows.

O:\CIVIL 16\16-73 Castellucci v Harcum College\Memo granting MtD.docx

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