J-A24014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HELENE FURJAN                                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

UNIVERSITY OF PENNSYLVANIA

                                                    No. 718 EDA 2016


                   Appeal from the Order February 18, 2016
             In the Court of Common Pleas of Philadelphia County
                  Civil Division at No(s): Case No. 140303605


BEFORE: BOWES, OTT AND SOLANO, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 13, 2016

        Helene Furjan appeals from the judgment entered on the defense

verdict in favor of University of Pennsylvania (the “University”) following a

six-day non-jury trial in a breach of contract action stemming from the

denial of tenure. We affirm.

        On July 1, 2005, Appellant started a four-year term as Assistant

Professor of Architecture at the University of Pennsylvania School of Design.

The University had the option of reappointing Appellant for an additional

three years with a mandatory tenure review during the 2010-2011 academic

year.    The parties amended the tenure track during 2008 to extend the

initial appointment by one year and to initiate the tenure process during

academic year 2011-2012. Appellant served as Assistant Professor for the
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required term, and during fall 2011, the University started the tenure

process.

      The University’s tenure procedure is governed by the University of

Pennsylvania Handbook for Faculty and Academic Administrators (“University

Handbook”), and the specific steps in the tenure review process are outlined

in a handbook designed explicitly for the School of Design (“Design

Handbook”).    Pursuant to those documents, evidence of a candidate’s

scholarship, professional accomplishments, and record of high quality

teaching is compiled in a tenure dossier, which various committees and

administrators review to decide whether to recommend tenure to the

University’s board of trustees. The trial court summarized the University’s

five-step process as follows:

      The process begins with the appointment of a tenured faculty
      committee, led by the chair of the department. An ad hoc
      committee can be appointed to assist and review in detail the
      candidate’s scholarship and teaching. The faculty committee’s
      findings are then referred to a personnel committee, consisting
      of tenured faculty members. Their recommendation is then sent
      to the Dean of the school, who conducts an independent review.
      The Dean’s findings, if there is a positive recommendation, is
      then sent to the Provost. The Provost can conduct his or her
      independent evaluation and if the Provost approves, that
      recommendation for tenure is sent to the Board of Trustees of
      the University for final approval.

Trial Court Opinion, 3/16/16, at 2-3.

      Appellant did not advance beyond the third step of the process.

Marilyn Taylor, Dean of the School of Design, testified during the trial that

successful tenure candidates typically receive unanimous or near unanimous

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approval at the first two stages of review. However, Appellant survived the

faculty committee by a slim 4-3 vote.         Furthermore, although Appellant

initially passed the five-member personnel committee by a correspondingly

thin 3-2 margin, the committee’s telephone conference was marred by

technical problems that impeded communication, and following the meeting,

one committee member desired to change his or her vote.                 Thus, in

accordance    with   Dean   Taylor’s   directions,   the   personnel   committee

reconvened approximately twenty days later and revisited Appellant’s tenure

dossier de novo.     At the close of that meeting, the committee voted

unanimously to recommend to deny tenure. Thereafter, consistent with the

established procedure, Dean Taylor conducted her independent evaluation

and denied the application for tenure. As the Dean of the School of Design

did not recommend tenure, the matter did not proceed to the Provost or the

board of trustees.

      Pursuant to the tenure process, Appellant requested a hearing before

the University’s grievance committee.      That committee first conferred with

Dean Taylor about her decision and then denied a hearing because

Appellant’s assertions did not satisfy the threshold for a grievance hearing,

i.e., she did not assert arbitrary and capricious decision making or an action

that was non-compliant with University procedures.             In essence, the

grievance committee determined that the tenure procedure that the School

of Design followed was fair, just, and in compliance with University


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regulations, and that the Dean’s decision was neither arbitrary nor

capricious.    Appellant’s seven–year appointment terminated on June 30,

2013.

        Appellant sued the University for breach of contract and asserted a

claim of promissory estoppel.      The University countered with a motion for

summary judgment arguing that Appellant’s breach of contract claim failed

because she did not establish a contractual right to anything beyond the

mandatory tenure review during 2011. As it relates to promissory estoppel,

the University asserted that the only promise it made to Appellant was to

consider her for tenure at a particular time in her academic career, which it

fulfilled.   After a motions judge denied the motion summarily, the matter

proceeded to a non-jury trial before a different jurist.

        At the outset of the trial, the trial court inquired about the basis of

Appellant’s breach of contract action. It stated,

        Now, before we get into opening statements, I think it's
        important that we know where we're headed in this case so
        there are certain parameters here.

              I am not here to review the merits of whether the
        professor should have been granted tenure or not, and I think
        the cases are pretty clear and I'd like to quote from the
        Shepard case, Shepard [v.] Temple University, [948 A.2d
        852 (Pa.Super. 2008)], which says that while a professor is free
        to assert in the court of law that the process of [tenure] that was
        afforded to her did not comply with the contract terms or letters
        or whatever it was that was incorporated in the contract, she is
        not free to demand that a jury reconsider and re-decide the
        merits of the case.




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            And I think the rationale is laid out by a colleague of mine
      and was quoted by the Superior Court that the assessment of
      these factors involving tenure are best performed by those
      closely involved in the life of the institution and not by judges.

            ....

            But I've got to look at it. Was there a contract? Was there
      a written contract here? Was there just a letter? Did the letter
      refer to any of the handbooks? These are the things that I have
      to key in on in order to understand whether the procedures of
      the University were properly met.

N.T., 11/19/15, 4-6. After hearing the relevant evidence regarding the two

employee handbooks and the documents exchanged when the employment

relationship was formed, the trial court ultimately decided that a contract

existed insofar as it related to the procedure outlining the University’s tenure

review.

      Over the course of six days, Appellant presented fourteen witnesses

and testified on her own behalf. The University introduced into evidence a

single document memorializing an email exchange between Appellant and a

witness from the University’s Office of Affirmative Action.     At the close of

trial, the court found that the University performed the tenure review in

accordance with the procedure defined in the two handbooks. Consequently,

it concluded that Appellant neither satisfied her burden of proving a breach

of contract or establishing the elements of promissory estoppel. Concerning

breach of contract, it reasoned, “The University fulfilled its obligation of

granting tenure review as promised. That was the promise here.” N.T.,

11/30/15, at 77.    As it relates to promissory estoppel, the court opined,

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“There wasn't any additional promise made that would induce reliance.” Id.

at 78. Thus, the trial court entered a verdict in favor of the University.

        Appellant filed a timely post-trial motion asserting, inter alia, that the

trial court: (1) excluded relevant and material evidence, including the

deposition    transcripts   of   two   unidentified   witnesses;   (2)   misapplied

controlling legal authority; (3) violated principles of coordinate jurisdiction;

and (4) improperly precluded the trial from continuing beyond November 30,

2015.      Significantly, Appellant neglected to assert that the trial court

overlooked any procedural irregularities in the tenure review process. This

appeal followed the trial court order denying post-trial relief and the entry of

judgment on the verdict in favor of the University.

        Appellant presents five questions for our review:

        A.     Did the Trial Court’s November 19, 2015, opening remarks
        . . . disclose that the Trial Court had, before hearing argument
        or testimony at trial, made material determinations of law and
        fact in derogation of the law of the case doctrine/coordinate
        jurisdiction rule and prejudicial to [Appellant]?

        B.    By relying on [the] Superior Court’s [ruling in] Shepard v.
        Temple University, 948 A.2d 852 (Pa. Super. 2008) . . . and
        disregarding the opinion of the Supreme Court in Murphy v.
        Duquesne University of the Holy Ghost, 565 Pa. 571, 777
        A.2d 418 (2001) . . . did the Trial Court commit error, and if it
        did, does that error alone entitle [Appellant] to the relief . . . ?

        C.    Does the Trial Court’s December 1, 2015 Order . . .
        materially misstate [the] Superior Court’s . . . statement of “the
        law on this subject” in Shepard ?

        D.    [Did] the Trial Court’s fundamental errors of law
        referenced in . . . a., b. and c. above . . . [deny Appellant the]
        right to present relevant, material evidence central to

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      adjudicating the claims [she] presented . . . [and violate] . . .
      the law of the case doctrine / coordinate jurisdiction rule[?]

      E.    Did the Trial [Court] deny [Appellant] a fair trial [in] this
      matter by arbitrarily limiting the duration of the trial to conform
      to the time remaining in the trial judge’s authority to sit as a
      Philadelphia Court of Common Pleas judge?

Appellant’s brief at 9-10 (footnote omitted).

      Instantly, the trial court deemed Appellant’s post-trial motion as a

motion for a new trial. See Trial Court Opinion at 5. In Kindermann v.

Cunningham, 110 A.3d 191, 193 (Pa.Super. 2015), we reiterated, “Trial

courts have broad discretion to grant or deny a new trial and, absent a clear

abuse of discretion by the trial court, appellate courts must not interfere

with the trial court's authority to grant or deny a new trial.”       It is well-

ensconced in our jurisprudence that “[a]n abuse of discretion . . . requires a

result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,

or such lack of support from the evidence or the record so as to be clearly

erroneous.” Polett v. Public Communications, Inc., 126 A.3d 895, 914

(Pa. 2015).

      The following legal principles control our disposition. The trial court’s

role in breach of contract cases involving a university’s decision to deny

tenure to a faculty member is limited to determining whether the university

complied with the procedure that it was contractually obligated to extend to

the applicant. Shepard, supra at 856-858 (citing Ferrer v. Trustees of

University of Pennsylvania, 825 A.2d 591 (Pa. 2002) and Murphy v.


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Duquesne University, 777 A.2d 418 (Pa. 2001)). At no point will the trial

court engage in a substantive review of a university's tenure decision. As

our Supreme Court explained in Baker v. Lafayette College, 532 A.2d

399, 403 (Pa. 1987), “This Court has no jurisdiction to review the factual

determinations of a college's governing body unless it can be clearly

demonstrated that the body violated its own procedures.”        In Baker, the

High Court reasoned as follows,

      As a matter of sound public policy, an institution of higher
      learning should be free to make such decisions. Engrafting a
      right to judicial second-guessing of the soundness of personnel
      decisions made under employment contracts would hamper this
      decision-making freedom. It would require courts to inquire into
      the truth or falsity of matters which are not amenable to such
      determination[.]

Baker, supra at 257.

      Appellant’s first complaint is that the trial court had preconceived

notions regarding what evidence would be relevant to the breach of contract

action. Recall that, at the outset of trial, the court noted that it would not

reassess the merits of the University’s decision to deny Appellant tenure,

and observed that, as a threshold matter, Appellant was required to

establish the particulars of the University’s contractual obligation to conduct

the tenure review.    Appellant argues that the previous order denying the

University’s motion for summary judgment effectively established the

contract’s existence as the law of the case and that the trial court’s opening

remarks violated the coordinate jurisdiction rule. No relief is due.


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      Stated simply, the coordinate jurisdiction rule “recognize[s] that

judges of coordinate jurisdiction sitting in the same case should not overrule

each others' decisions” absent exceptional circumstances. Commonwealth

v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). Instantly, the order denying the

University’s motion for summary judgment did no more than establish the

existence of an issue of material fact as to whether the Faculty Handbook

and Design Handbook created any contractual obligations.         Contrary to

Appellant’s protestations, the prior order did not establish the contractual

obligation per se or set forth the parameters of the University’s tenure

review process.    Indeed, as the trial court accurately outlined in its

introductory statement that Appellant now seeks to challenge, Appellant was

required to prove these elements of her case during trial.

      Appellant’s attempt to implicate the law-of-the-case doctrine in order

to circumvent her evidentiary burden fails.          First, the trial court’s

introductory statement was not a legal ruling but rather an indication of its

perspective of this case and Appellant’s burdens of proof and persuasion.

Second, even to the extent that the remarks could be construed as a ruling

of law, the trial court’s statements did not overrule the motions court order

denying the University’s motion for summary judgment.        Indeed, the trial

court’s discussion of the legal framework necessarily recognized the

existence of material facts regarding the contractual obligations and simply




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reminded Appellant of her ultimate burden of proving those obligations and

the University’s failure to perform.

      Moreover, assuming that the statement was tantamount to a legal

ruling that was entered in contravention of the motions court’s prior order,

the present argument is waived because Appellant failed to object to the

court’s description of the applicable law at that time. When the trial court

advised Appellant, “You have to show me some . . . statements made by

representatives of the University or documents that show . . . what [was]

promised as far as tenure, what the procedures were . . . , and . . . that they

failed to adhere to it,” Appellant’s counsel responded, “[w]e understand

that, Your Honor. I understand it. [Appellant] understands it.” N.T.,

11/19/15, at 10 (emphasis added). As Appellant acknowledged that she had

the burden of proving the existence of a contract obligation, no relief is due.

      Next, we address collectively the issues that Appellant identified under

the headings B, C, and D, in her statement of questions presented. The crux

of those assertions is that the trial court misinterpreted the relevant law as it

is outlined in our discussion in Shepard, supra, and the High Court’s

analyses in Ferrer, supra, and Murphy, supra.                In ruling against

Appellant, the trial court: (1) determined that the University had a

contractual obligation to perform the tenure review in a specific manner; (2)

limited its consideration of Appellant’s evidence to that issue; and (3)




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ultimately   found    that   the   University’s   tenure   review   process   was

“scrupulously followed.” Trial Court Opinion, 3/16/16, at 7.

      Appellant vaguely asserts that she did, in fact, claim a procedural

breach, and she implies that the prevailing case law permitted her to present

evidence or examine witnesses on issues that glanced behind the curtain of

academia to determine whether the tenure process was carried out in good

faith, which she argues is an implied component of the University’s

contractual obligation.

      At its core, Appellant’s complaint assails the trial court’s evidentiary

determinations.      Generally, “[o]ur standard of review for a trial court's

evidentiary rulings is narrow.” Commonwealth v. Mickel, 142 A.3d 870,

874 (Pa.Super 2016). Therefore, “[t]he admissibility of evidence is solely

within the discretion of the trial court . . . [.]” Id. As we previously noted,

“[a]n abuse of discretion . . . requires a result of manifest unreasonableness,

or partiality, prejudice, bias, or ill-will, or such lack of support from the

evidence or the record so as to be clearly erroneous.” Polett, supra at 15.

      Appellant’s rambling discourse as to how the trial court misread the

prevailing case law neglected to challenge a single evidentiary ruling.        In

fact, Appellant failed in both her post-trial motion and in her appellate brief

to identify the specific evidence or witness testimony that she claims the trial

court precluded her from presenting during the six-day trial that was

material to this issue. To the contrary, the post-trial motion cites baldly to


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several pages in the notes of testimony, refers to two unidentified witnesses

and requests the resumption of Appellant’s case-in-chief in order to “recall

and resume questioning any witness already heard; and . . . call and

question all witnesses     named on Exhibit “A”        to   Plaintiff’s Pre-Trial

Conference Memorandum . . . and not yet heard.”              Post-Trial Motion,

12/11/15, at 2, 4 (emphases added).

      Likewise, the portion of her argument relevant to this issue on appeal

consists of the following obscure statement:

            [Appellant] sought to ask no question that did not seek
      evidence having a tendency to make a fact of consequence in
      determining the action brought before the [c]ourt after Judge
      Wright Padilla’s order more or less probable than it would be
      without the evidence sought; no witness [Appellant] sought to
      call who did not have knowledge of such evidence; no document
      she sought to introduce, or on which question a witness, that did
      not contain such evidence.

            Many such witnesses, questions, and documents were
      found by the trial court to be without relevance to the claims to
      which the [t]rial [c]ourt limited [Appellant], or to address issues
      held by the trial court to be non-justiciable.

Appellant’s brief at 44-45.     Again, Appellant neglected to highlight any

evidentiary rulings for this Court to review.

      As Appellant failed to develop her argument by identifying the

evidence that she asserts the trial court erred in precluding, we cannot




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perform meaningful appellate review.1 The issue is waived. In re W.H., 25

A.3d 330, 339 n.3 (Pa.Super. 2011) (“[W]here an appellate brief fails to

provide any discussion of a claim with citation to relevant authority or fails

to develop the issue in any other meaningful fashion capable of review, that

claim is waived.”); Commonwealth v. Genovese, 675 A.2d 331, 334

(Pa.Super. 1996) (arguments not properly developed on appeal are waived).

       Appellant’s final claim is that the trial court abbreviated the non-jury

trial to conform with its certification to preside over the matter as a senior

judge. Appellant notes that, as a senior judge, the trial court’s appointment

was scheduled to expire after November 30, 2015, and would not resume

until March of 2016. The entirety of Appellant’s legal argument on this issue

follows:

             The [t]rial [j]udge forcefully rejects the contention that
       [Appellant], or her counsel, were under any unfair limitation on
       the time allowed them within which to try [her] case.

             There was perhaps sufficient time to present the case that
       [the University] argued and the [t]rial [j]udge held was properly
       before the [c]ourt. That case was not the case that . . . [the]
____________________________________________


1
  While not referenced in Appellant’s argument, we observe that Appellant
attached to her brief an appendix that purports to chart, inter alia, her
attempts to elicit evidence from witness and the court’s refusal to admit the
evidence. This table is useless, however, as it fails to identify the witnesses,
evidence, or the trial court’s evidentiary ruling. It simply references two
columns of page numbers from the notes of testimony for the six-day trial.
Likewise, Appellant attached to her reply brief four exhibits that span
approximately one hundred pages of equally useless citations and excerpts
from the notes of testimony. At no point has Appellant identified the specific
documents or testimony that she alleges the trial court erred in precluding.



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      Order denying [the University’s] [s]ummary [j]udgment motion
      had put before the [c]ourt that the undersigned, on behalf of his
      client, sought to present.

Appellant’s brief at 46.

      As we explained in addressing the foregoing argument, this issue is

waived due to Appellant’s failure to provide any significant discussion of the

claim or to develop it in a fashion capable of our review. Without any legal

argument or citation to relevant legal authority, we cannot engage in

meaningful appellate review. See In re W.H., supra; Genovese, supra.

      Furthermore, had Appellant actually presented an argument sufficient

for our review, we would reject it for the reasons that the trial court stated

in its opinion:

            [Appellant’s] counsel had more than ample opportunity to
      present his case on behalf of [Appellant]. The [c]ourt spent
      parts of six trial days listening to the testimony from the Dean of
      the School of Design, [thirteen] other [witnesses, including]
      professors . . . and officials of the University of Pennsylvania.
      ...     The [c]ourt accommodated [c]ounsel in every way,
      including recessing early on particular days when the University
      could not produce a witness at that particular time. . . .

            In addition to giving wide latitude to counsel in the
      presentation of his case, it became clear from a review of the
      witnesses called by [Appellant] that they were of no help in
      supporting her claim that [the University] failed to follow the
      proper rules and procedures in its determination of tenure. It is
      obvious from this review that [Appellant] was unable to prove
      her case; that [Appellant’s] counsel, in essence, was conducting
      a fishing expedition. If the [c]ourt would have acceded to
      [Appellant’s] request [for time to present additional witnesses],
      there is no cause to believe that any further witnesses would
      have been able to aid [Appellant] in any way, shape, or form.
      The [c]ourt acted properly and within its sound discretion.


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      Consequently, [Appellant’s] [p]ost [t]rial [m]otions are denied
      and judgment is accordingly entered.

Trial Court Opinion, 2/18/16, at 8.

      For all of the foregoing reasons, we discern no basis upon which to

conclude the trial court erred or abused its discretion in rejecting Appellant’s

claims of breach of contract and promissory estoppel and entering judgment

on the verdict in favor of the University. Appellant neglected to challenge

any procedural irregularities in the tenure review process, and the claims

she levels on appeal are patently meritless, waived, or both.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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