Dantone v. King's College

Filing 19

MEMORANDUM (Order to follow as separate docket entry) Signed by Honorable Julia K Munley on 8/29/24. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
No. 3:23cv1365

MICHAEL DANTONE, on behalf
of himself and all others
similarly situated,
Plaintiff

(Judge Munley}

V.

KING'S COLLEGE,
Defendant

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MEMORANDUM
Before the court for disposition is Defendant King's College's motion to
dismiss Plaintiff Michael Dantone's putative class action complaint regarding the
college holding online classes during the COVID-19 pandemic. The parties have
briefed their positions and the motion is ripe for decision.
Background
Defendant King's College ("defendant" or "King's") is a private liberal arts
college located in Wilkes-Barre, Pennsylvania. Enrollment at the college is 1,900
undergraduate students and 600 part-time students. (Doc. 1, Com pl. 1{ 17, 64 ).
Defendant offers students the option to attend either online classes or have an
on-campus, in-person educational experience. (kl) Plaintiff Michael Dantone
was an undergraduate student enrolled in King's on-campus, in-person education
program during the spring 2020 semester. (kl 1{ 4 ).

In March 2020, in response to the outbreak of the COVID-19 pandemic,
defendant transitioned to remote, online-only education and cancelled oncampus recreational events and student activity events. (kl ,I 6). Defendant
further ordered students to refrain from going on campus. (kl) Thus, for the
remainder of the spring 2020 semester, no on-campus education, services, and
amenities were available to students. (kl ,I 7).
Thus, per the complaint, King 's students lost the services and experience
for which they had paid. (kl ,I 9). Defendant refused to provide a prorated
refund of tuition and fees related to on-campus education, services, and
amenities even though they were not available to students for a significant part of
the spring 2020 semester. (~ ,I 8). Defendant, however, did prorate room
and/or board charges for residential students for the semester. (kl) According
to the plaintiff, defendant breached its contracts with the students by not
providing prorated refunds for tuition or fees charged for on-campus education
and services.
Based upon these allegations, plaintiff filed the instant complaint, which
raises the following two causes of action: Count 1, breach of contract; and Count
2, Unjust Enrichment. (kl at ,I,I 71-90). Plaintiff seeks to bring the complaint on
his behalf and on behalf of all the King 's students similarly situated to him with
regard to the spring 2020 semester. (~ ,I,I 62-70).
2

In response to the plaintiff's complaint, the defendant filed a motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc.
11 ). The parties have filed briefs in support of their respective positions, bringing
the case to its present posture.
Jurisdiction

The plaintiff bases this court's jurisdiction on 28 U.S.C. § 1332(d)(2)(A), as
modified by the Class Action Fairness Act of 2005. At least one member of the
class is a citizen of a different state from the state the defendant is a citizen of
and there are more than 100 members of the class. Additionally, the aggregate
amount in controversy exceeds $5,000,000.00 exclusive of interest and costs.
(Doc. 1, Compl. ,I 18).
Standard of review

As noted above, defendant has filed a motion to dismiss pursuant to Rule
12(b )(6) of the Federal Rules of Civil Procedure. Defendants filed their motion to
dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b )(6). The
court tests the sufficiency of the complaint's allegations when considering a Rule
12(b )(6) motion. All well-pleaded allegations of the complaint must be viewed as
true and in the light most favorable to the non-movant to determine whether,
'"under any reasonable reading of the pleadings, the plaintiff may be entitled to
relief."' Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988)
3

(quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir.
1985)). The plaintiff must describe "'enough facts to raise a reasonable
expectation that discovery will reveal evidence of' [each] necessary element" of
the claims alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224,
234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). Moreover, the plaintiff must allege facts that "justify moving the case
beyond the pleadings to the next stage of litigation."

~

at 234-35. In evaluating

the sufficiency of a complaint the court may also consider "matters of public
record, orders, exhibits attached to the complaint and items appearing in the
record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F .3d 1380,
1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept
legal conclusions or unwarranted factual inferences. See Curay-Cramer v.
Ursuline Acad. of Wilmington. Del., Inc. , 450 F.3d 130, 133 (3d Cir. 2006) (citing
Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997)).
The federal rules require only that plaintiff provide "a short and plain
statement of the claim showing that the pleader is entitled to relief, " a standard
which "does not require detailed factual allegations," but a plaintiff must make "a
showing, rather than a blanket assertion, of entitlement to relief that rises above
the speculative level." McTernan v. N.Y.C. , 564 F.3d 636, 646 (3d Cir. 2009)
(citations and internal quotations and quotation marks omitted). The "complaint
4

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) (quoting
Twombly, 550 U.S. at 570). Such "facial plausibility" exists "when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."

lit (citing Twombly,

550 U.S.

at 556). "[T]he factual detail in a complaint [cannot be] so undeveloped that it
does not provide a defendant the type of notice of claim which is contemplated
by Rule 8." Phillips, 515 F.3d at 232 (citation omitted). "Though a complaint
'does not need detailed factual allegations, ... a formulaic recitation of the
elements of a cause of action will not do."' DelRio-Mocci v. Connolly Props., Inc.,
672 F.3d 241, 245 (3d Cir. 2012) (quoting Twombly, 550 U.S. at 555).
Discussion

Defendant's motion to dismiss raises the following four issues: 1) Is
plaintiff's complaint barred based on the educational malpractice doctrine? 2)
Does the complaint properly allege a breach of an implied contract to provide inperson and on-campus educational services and access to facilities and
campus? 3) Do the doctrines of frustration of purpose and/or impracticability
excuse defendant's actions in moving all classes online? and 4) Has plaintiff
properly pied an unjust enrichment claim? The court will address each issue in
turn.
5

1. Educational Malpractice Doctrine

Defendant's first argument is that plaintiff's breach of contract and unjust
enrichment claims amount to an assertion of educational malpractice, a claim
which is generally not cognizable under Pennsylvania law. In support of its
position, defendant cites to Cavaliere v. Duff's Bus. Inst., 605 A.2d 397 (Pa.
Super. Ct. 1992).
In Cavaliere, the Pennsylvania Superior Court addressed the issue of
whether a breach of contract or tort action could be brought against an
educational institution on the basis that the quality of the education received was
subpar. The court deemed such actions "educational malpractice", and "refused
to recognize a general cause of action for educational malpractice, whether
framed in terms of tort or breach of contract, where the allegation is simply that
the educational institution failed to provide a quality education."

~

at 403. The

court reasoned that "[i]t would be unwise to inject the judiciary into an area where
it would be called upon to make judgments despite often insurmountable
difficulties both in the formulation of an adequate standard of care and in finding
a causal link between the alleged breach and the alleged damages."

~

Defendant argues that plaintiff's complaint falls squarely into the doctrine of
educational malpractice and is thus barred under Pennsylvania law.

6

Plaintiff, however, argues that his case is not about the quality of the
education he received. Rather, the complaint alleges that defendant promised to
provide a specific type of education (in-person and on-campus), for which plaintiff
paid significant sums of money by way of tuition and fees. (Doc. 1, Compl.

,m 3-

4, 36, 38). Defendant then changed the type of education it provided without
returning the funds paid.

(kl ,m 6-8,

39-40). That is, the defendant closed the

campus and provided only online classes.
The Third Circuit Court of Appeals has addressed this issue and rejected
the argument that the defendant here advances. See Hickey v. Univ. of
Pittsburgh, 81 F.4th 301 (3d Cir. 2023). The court stated: "We reject the
Universities' assertion that the Students' tuition claims amount to no more than
educational malpractice claims. The Students' claims are not that the education
they received was inadequate, but rather that the Universities failed to provide a
specific type of education - live and in person - that was essential to the
bargain."

kl at 311

n.7. Here, as noted above, plaintiff makes the same

allegations. Therefore, the defendant's argument regarding the education
malpractice doctrine is unconvincing, and the portion of the motion to dismiss
based on this doctrine will be denied.

7

2. Implied Contract
Count I of plaintiff's complaint asserts a cause of action for breach of
implied contract. (Doc. 1,

,m 71-79).

Defendant next argues that plaintiff fails to

state a proper claim for such a breach. Defendant's argument has two parts.
First, it argues that plaintiff cannot identify a specific enforceable promise.
Second, defendant argues that any requirement to provide in-person education is
excused. The court will address each argument separately.

a. Specific Enforceable Promise
Plaintiff's complaint contends that defendant breached its implied promise
to provide an "in-person and on-campus education experience" in exchange for
tuition and fees. (Doc. 1, Compl. 111136, 37, 73). Plaintiff paid the tuition and fees
necessary for the defendant to provide in-person on-campus education, but the
defendant did not provide an in-person and on-campus education experience.
Defendant now refuses to refund the tuition and fees to the plaintiff.
Under Pennsylvania law, "[a] contract implied in fact is an actual contract
which arises where the parties agree upon the obligations to be incurred, but
their intention, instead of being expressed in words, is inferred from acts in the
light of the surrounding circumstances. " Liss & Marion, P.C. v. Recordex
Acquisition Corp., 983 A.2d 652 , 659 (Pa . 2009) (internal quotation marks and
citation omitted). The Third Circuit has confirmed that the law of implied
8

contracts applies in the student-university context. "Pennsylvania law has not
jettisoned ordinary contract principles permitting implied contracts in cases where
... students allege that a university failed to perform a specific undertaking."
Hickey, 81 F.4th at 311-12.
Defendant argues that plaintiff fails to properly allege any promise it made
that has been breached. Plaintiff disagrees. The alleged promise, per the
complaint, was that defendant would provide "an in-person and on-campus
educational experience as well as the services and facilities to which the
Mandatory Fee . . . pertained throughout the Spring 2020 semester." (Doc. 1,
Compl. ,I 73).
According to the defendant, plaintiff has not identified a single contract,
handbook, policy, or document in which defendant agreed to provide exclusively
in-person, on-campus education. On the contrary, plaintiff acknowledges in his
complaint the defendant offered in-person, online, and hybrid online/on-campus
classes even before the pandemic. (kl ,I 23). In the absence of a promise by
the defendant, the plaintiff's implied contract claim fails according to the
defendant.
Plaintiff alleges that the following establish a promise on the part of the
defendant to provide on-campus in-person classes:

9

Defendant's marketing materials, course catalogs, and other bulletins
promoted the benefits of being on its campus. (Doc. 1, Compl.

,m 29-35).

For

example, the defendant's website states: "Community is important at King's
College because we believe your success depends upon an environment that's
as nurturing as it is enriching ." (~ ,I 32). The website further provides, "the
minute you step foot on campus, you'll feel the warm , friendly vibe; you'll notice
the immaculate surroundings and impressive facilities ; you 'll feel at home in the
comfortable urban setting. King 's College is a home away from home -a place
that overflows with values for a lifetime." (~)
The website and course catalogue also discussed the benefits of attending
a school located in Northeastern Pennsylvania, and the cultural and
entertainment opportunities to be had. (~ W 33-34 ). Both promoted the
campus's physical location. (~)
The Hickey court faced similar arguments and held: "[V]iewed in context
with the Students' payment of tuition and registration for in-person classes prior
to campus closures, these representations support a reasonable inference that
in-person education and access to campus resources were among the benefits
of the matriculation bargain ." 81 F.4th at 312. As such, these allegations
support the plaintiff's implied contract theory.

10

Plaintiff also points out that "[s]ince its founding in 1946, Kings has offered
its educational programs on-campus and in-person." (kl ,I 22). Additionally,
nearly all of the courses listed in the course catalogue are offered exclusively at a
physical location on-campus and in-person. (kl ,I 23). Similar allegations were
found to support the implied contract theory in Hickey, therefore, the court finds
that they also support plaintiff's implied contract theory here. 1 81 F.4th at 313.
Accordingly, plaintiff has evidence from which a factfinder could find an
implied contract, and dismissal of that claim is inappropriate.
As noted above, plaintiff claims he paid both tuition and mandatory fees in
return for the in-person on-campus educational experience. Defendant makes a
separate argument with regard to the mandatory fees. It claims that the various
mandatory fees are structured as "flat fees" and are incurred regardless of
whether or not students used all the services to which they might be put to use.
Accordingly, defendant argues that plaintiff cannot plausibly argue that he is
entitled to a prorated refund of these mandatory fees.
The complaint alleges that plaintiff paid the "Mandatory Fee" for the spring
2020 semester so as to benefit from on-campus services and facilities offered by

1

The Hickey court addressed a third factor that supported the implied contract theory. This
factor was that online courses at the universities in question cost less than in-person courses.
Hickey. 81 F.4th at 313. This factor is not pied in the instant case. Hickey, however, did not
hold that that factor must be pied to assert a proper implied contract in these circumstances. It
merely addressed the cost as another factor which supports an implied contract.

11

defendant to its students. (Doc. 1, Campi. ,I 38). When the campus was closed
the Mandatory Fees were not refunded, not even on a prorated basis. (~ ,I 49).
Plaintiff seeks a prorated refund of the Mandatory Fees.
The Third Circuit also addressed the issue of fees in Hickey. In that case
the court noted: "the Students have adequately alleged that the services and
access to campus facilities that the individual fees were intended to cover were
at least partially terminated, so the Students may be owed a refund. " Hickey, 81
F.4th at 315. Likewise, here, while further discovery may be needed to
determine the scope of the fees , what they covered, when the services were
terminated , and for how long , see,id., the students paid a fee or fees that was
intended to cover the whole semester. The semester, however, was cut short.
Therefore, they may be entitled to a refund of a portion of the fee or fees paid.
Based on the above reasoning, the plaintiff has sufficiently pied an implied
contract regarding the payment of tuition and mandatory fees. Defendant's
motion will be denied with regard to these issue.
b. Any Requirement to Provide In-Person Education is Excused
Defendant next argues that even if it did have a duty to provide in-person
education based upon an implied contract, its duty to fulfill that obligation was
excused by executive orders to shut down the campus due to the health risks
posed by the pandemic.

12

The law provides that a party's performance of a contract may be excused
by impracticability of performance or frustration of purposes. Step Plan Servs. v.
Koresko, 12 A.3d 401, 411-13 (Pa. Super. Ct. 2010). Here, defendant argues
that in response to the COVID-19 pandemic, the Governor of Pennsylvania, Tom
Wolf, declared a state of emergency. He ordered all non-essential businesses to
close, including colleges, thus preventing colleges from providing in-person
instruction. Per defendant, it did the best it could by providing on-line classes,
and thus any breach of an implied contract on its part was not material.
The law provides, however, that the application of the impracticability
defense is best left until after discovery. See Nouri v. Univ. of Scranton,
3:23cv1362, 2024 WL 3871804, at* 7 (M.D. Pa. Aug . 19, 2024) (explaining in a
similar case that discovery is needed to clarify the extent to which the law barred
defendant from performing its alleged contractual obligations). Moreover, the
impracticability defense does not allow the breaching party to keep the benefit
conferred upon it by the other party, it at most only excuses performance of a
contract.

kl In other words, even if the breach is excused, defendant may have

to pay damages regardless. Accordingly, at this point in the litigation, the court
rejects defendant's argument.

13

2. Unjust Enrichment
Count 11 of plaintiff's complaint asserts a cause of action for unjust
enrichment. (Doc. 1, Compl.

,m 80-90).

Defendant seeks dismissal of this claim.

Under Pennsylvania law, the elements for unjust enrichment are:
1) the plaintiff conferred a benefit on the defendant; 2) the defendant
appreciated the benefit; and 3) the defendant retained the benefit under
circumstances where it would be inequitable to do so without payment of value.
Hickey, 81 F.4th at 316 (citing WFIC, LLC v. LaBarre, 148 A.3d 812, 819 (Pa.
Super. Ct. 2016)).
Here, plaintiff has adequately alleged an unjust enrichment claim. He
claims that he conferred a benefit on the defendant, that is, he paid tuition and
fees. The defendant received the benefit but retained it even though it did not
provide the benefit plaintiff was owed, specifically in-person on-campus
education. (Doc. 1, Compl.

,m 80-90).

Defendant argues, however, that the plaintiff cannot recover for unjust
enrichment because under Pennsylvania law a party cannot recover for unjust
enrichment if an existing contract governed the parties' relationship. Here,
plaintiff alleges in Count 1 that a contract governed the relationship between the
parties and, therefore, according to the defendant, plaintiff cannot allege an
unjust enrichment claim in Count 2.
14

This argument was addressed by the Hickey court which noted that
Pennsylvania law does indeed bar unjust enrichment claims where the parties
relationship is governed by either an express or implied contract. Hickey, 81
F.4th at 315 (citing Hershey Foods Corp. v. Ralph Chapek. Inc., 828 F.2d 989,
999 (3d Cir. 1997)). The Federal Rules of Civil Procedure, however, allow an
unjust enrichment claim to be pied in the alternative where the existence or
applicability of a contract is disputed.

kl at 315-16;

see FED. R. CIv. P. 8(d)(3)

("A party may state as many separate claims or defenses as it has, regardless of
consistency."). Thus, the Hickey court permitted the unjust enrichment claim to
proceed. For the same reasons, the court here will deny the defendant's motion
with regard to the unjust enrichment claim. Plaintiff is allowed to assert the
unjust enrichment claim in the alternative to the breach of contract claim because
defendant disputes the contract claim .
Conclusion

For the reasons set forth above, the defendant's motion to dismiss will be
denied. Plaintiff has properly pied causes of action for breach of contract and
unjust enrichment. An appropriate order follows.

15

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s Distric

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