J-A28042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MEGAN THODE                                      IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellant

                   v.

NICHOLAS LADANY, AMANDA CARR
AND LEHIGH UNIVERSITY

                        Appellee                      No. 29 EDA 2014


          Appeal from the Judgment Entered November 25, 2013
          In the Court of Common Pleas of Northampton County
               Civil Division at No(s): C0048CV2010-11525


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED NOVEMBER 06, 2014

     Megan Thode, a student in a Master’s Degree program at Lehigh

University’s College of Education (“University”), appeals from a judgment

entered in favor of the University. We affirm.

     Thode filed a complaint alleging claims against the University for, inter

alia, breach of contract and discrimination under Title IX, 20 U.S.C. § 1681

et seq. The essence of her claim was that her grade of C+ in one of her

courses not only was arbitrary and capricious but prevented her from

becoming a licensed professional counselor.      Thode subsequently withdrew

all counts against the individual defendants and proceeded to trial solely

against the University on two contract claims (counts I and VIII of the

complaint) and one Title IX claim (count III of the complaint).         At the
J-A28042-14



conclusion of a non-jury trial, the court entered a verdict in favor of the

University on all claims.

        Thode filed post-trial motions seeking judgment n.o.v. and/or a new

trial, but the court denied her motions. She thereupon reduced the verdict

to judgment and filed a timely appeal.           Both Thode and the trial court

complied with Pa.R.A.P. 19251.

        In her first argument on appeal, Thode argues that the trial court

erred in denying her motion for judgment n.o.v. on her breach of contract

claim2.

        A motion for judgment n.o.v. is a post-trial motion in which the verdict

loser requests the court to enter judgment in his favor. There are two bases

on which the court can grant judgment n.o.v.:


____________________________________________


1
    The issues in Thode’s Rule 1925(b) statement are as follows:

     1. Whether or not the plaintiff is entitled to judgment n.o.v. where the
        evidence viewed most favorably to the defendants establishes a
        "substantial deviation from the academic norm" by virtue of the
        "smoking gun" email, the zero in-class participation as the only zero
        for class participation in the history of Lehigh and the intentional delay
        by Carr/Ladany in handling the grievance in order to sabotage it?
     2. Whether or not the plaintiff is entitled to a new trial based upon [an]
        erroneous evidentiary ruling?
2
  We add two points for the sake of clarity. First, Thode does not seek
judgment n.o.v. on her Title IX claims. Second, Thode’s appellate briefs do
not differentiate between her contract claim in Count I of the complaint and
her contract claim in Count VIII. Accordingly, we will treat these claims as a
single claim for purposes of this appeal.



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J-A28042-14


              [O]ne, the movant is entitled to judgment as a
              matter of law and/or two, the evidence is such that
              no two reasonable minds could disagree that the
              outcome should have been rendered in favor of the
              movant. With the first, the court reviews the record
              and concludes that even with all factual inferences
              decided adverse to the movant the law nonetheless
              requires a verdict in his favor, whereas with the
              second, the court reviews the evidentiary record and
              concludes that the evidence was such that a verdict
              for the movant was beyond peradventure.

Polett   v.     Public   Communications,        Inc.,   83   A.3d      205,   212

(Pa.Super.2013).      In an appeal from the trial court’s decision to deny

judgment n.o.v.,


              we must consider the evidence, together with all
              favorable inferences drawn therefrom, in a light most
              favorable to the verdict winner. Our standard of
              review when considering motions for a directed
              verdict and judgment notwithstanding the verdict are
              identical. We will reverse a trial court's grant or
              denial of a judgment notwithstanding the verdict
              only when we find an abuse of discretion or an error
              of law that controlled the outcome of the case.
              Further, the standard of review for an appellate court
              is the same as that for a trial court.

Id. at 211.

     Before we can reach the merits of Thode’s argument, however, we

must first examine whether she has preserved for appeal her right to

request judgment n.o.v. We conclude that she has not.

     Following trial, a party may seek judgment n.o.v. by filing a timely

motion for post-trial relief. Pa.R.Civ.P. 227.1(a)(2). The trial court cannot

grant such relief, however, unless the party moved for a directed verdict at


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J-A28042-14



the close of evidence via oral or written motion. Pa.R.Civ.P. 226(b); Haan

v. Wells, -- A.3d --, 2014 WL 5018462, *6-7 (Pa.Super., October 8, 2014)3.

The failure to request a directed verdict at the close of evidence constitutes

a waiver of the party’s right to seek judgment n.o.v. in post-trial motions or

on appeal. Id.

       Here, at the close of evidence, the court and counsel discussed the

applicability of Title IX4, but counsel for Thode did not request a directed

verdict. Nor did counsel for Thode request a directed verdict during closing

arguments5. Nor does the trial transcript or docket state that Thode filed a

written motion for directed verdict. Consequently, Thode waived her right to

file a post-trial motion seeking judgment n.o.v. and to appeal the denial of

judgment n.o.v. to this Court6.

____________________________________________


3
  The requirement to move for a directed verdict applies both in jury trials,
Frank v. Peckich, 391 A.2d 624, 632 (Pa.1978), and non-jury trials, Haan,
supra.
4
  N.T., 2/14/13, pp. 693-98.
5
  N.T., 2/14/13, pp. 698-722.
6
  Although the University did not raise the issue of waiver, we still have the
authority to rule sua sponte that Thode waived her right to pursue judgment
n.o.v. Commonwealth v. Edmondson, 718 A.2d 751, 752 n. 7 (Pa.1998)
(“this Court can raise the issue of waiver sua sponte”); see also Wirth v.
Commonwealth, 95 A.3d 822, 836-37 (Pa.2014) (Supreme Court held that
it was proper for Commonwealth Court to hold sua sponte that appellant
waived issue by failing to develop it properly in appellate brief; “because the
burden rests with the appealing party to develop the argument sufficiently,
an appellee's failure to advocate for waiver is of no moment”);
Commonwealth v. Triplett, 381 A.2d 877, 881 (Pa.1977) (although
neither party addressed issue of waiver as to appellant's allegation of trial
court error, Supreme Court could raise waiver issue sua sponte).



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        Even if Thode preserved this issue for appeal, it is devoid of merit.

Construed in the light most favorable to the University, the verdict winner,

the evidence is as follows: Thode was a student in a Master’s Degree

program in Counseling and Human Services (“CHS”) at the University’s

College of Education. She intended to obtain a Master’s Degree in order to

become a licensed professional counselor. The first year of the program is

all coursework.      The second year focuses mainly on fieldwork, in which

students work with actual clients at a clinical site and apply the knowledge

gained in their coursework.

        The present dispute arose during Thode’s second year in the program.

Thode enrolled in the first semester of a mandatory two-semester

“practicum” sequence comprised of a clinical placement in the community

and a classroom component taught by appellee Carr, an adjunct faculty

member and an advanced doctoral student7.          Appellee Ladany, a tenured

professor, oversaw the Master’s Degree program as Program Coordinator8.

        The CHS Program Manual provides in relevant part:

              Each of the supervisors will evaluate the students’
              counseling-related competencies based on the same
              measure that attends to counseling skills, behavior in
              supervision, and professionalism. Any student whose
              counseling-related competencies are judged to be
              deficient may be required to complete additional
              coursework, counseling training, and/or supervision,
____________________________________________


7
    N.T., 2/12/13, pp. 328-29.
8
    N.T., 2/13/14, p. 436.



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J-A28042-14


              and/or or may not be permitted to continue into their
              next level of practicum training, or may not be
              permitted to complete their degree program.
              Deficiency is determined based on the evaluation
              measure where an appreciable discrepancy is
              identified among all supervisor evaluations9.

       In the fall of 2009, in addition to on-site supervision, students spent

one    hour    per   week     in   supervision       with     a   doctoral   student   who

simultaneously took a course (with Ladany) to learn supervision, and had a

three-hour class session with the practicum instructor, Carr10. Each of the

supervisors     provided     evaluations       of   the     student   from   his/her   own

perspective, but the practicum instructor, Carr, was responsible for providing

the overall assessment of each student’s counseling skills and competency 11.

To successfully complete the practicum course, students were required to

demonstrate that they could apply the knowledge gained in first-year

coursework and show that they had the skills and competencies that

counselors need to work effectively with individuals who have emotional or

mental problems12.

       At the end of the Fall 2009 semester, Carr gave Thode a C+ grade in

the practicum course and recommended to the CHS faculty, through Ladany,


____________________________________________


9
   Program Manual For Counseling and Human Services (“Program Manual”),
p. 23.
10
    N.T., 2/13/14, pp. 437-38; Program Manual, pp. 23-24.
11
    N.T., 2/13/14, pp. 506-09.
12
    Program Manual, pp. 21-25; N.T., 2/12/14, pp. 343-44.



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J-A28042-14


that Thode needed remediation before moving ahead in the program 13. The

faculty concurred in that judgment14. This recommendation was consistent

with the CHS Program Manual, which stated that a student must attain a

grade of B or higher in the practicum, and show satisfactory levels of

counseling-related competencies, to move forward15.

        The primary reason for Thode’s overall grade of C+ was a zero grade

in class participation for unprofessional behavior. On one occasion, Thode

and Carr exchanged emails concerning Carr’s advice that Thode refrain from

showing up unannounced at potential clinical sites to try to meet the

supervisor. Carr copied Ladany and others on the emails. Angered by Carr’s

decision to copy others, Thode stood up in class and twice yelled, directly to

Carr: “This is shitty.”16        Thode’s inappropriate language and demeanor

caused Carr concern because it “was a professional issue.”17 Carr met with

Thode      to   discuss   Thode’s    outburst,   but   Thode   alternately   laughed

inappropriately and then cried, and said that she would have to get a lawyer

because she thought Carr had breached confidentiality by copying the email

to others18. Carr requested that Thode reflect on this matter and respond in

writing.    Thode did not respond at all until Carr prompted her almost two
____________________________________________


13
     N.T., 2/12/13, pp. 277-78; Defense Exhibit 24.
14
     N.T., 2/13/14, pp. 479-80, 517-18, 565-66.
15
     Program Manual, p. 23.
16
     N.T. 2/12/13, pp. 280-82.
17
     N.T. 2/12/13, p. 289.
18
     N.T. 2/12/13, pp. 346-49.



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J-A28042-14


weeks later, and even then she did not respond substantively, but rather

sent only a curt letter in which she apologized for her actions in class 19.

Thode later testified that she actually did not reflect on Carr’s comments or

on her own behavior20.

        Other    incidents     created         additional   concern   about   Thode’s

professionalism.     When a student asked in class what Gail Lutsky (a site

supervisor) said about Ladany, Thode shouted that Lutsky thinks he is “a

pompous a-hole.”21           On another date, as Carr responded to another

student’s question, Thode yelled aloud, “I need an Advil,” so that Carr had to

stop her discussion with the other student to address Thode22.

        Thode’s written work was deficient due to her failure to master

important concepts such as culture and diversity factors23. Thode also failed

to discuss these factors effectively in class. Carr testified that with regard to

the only significant reading assignment during the semester, related to how

culture and diversity factors affect counseling, Thode was the only student

who appeared not to have read the article, and came to class unprepared to

discuss it. When Carr expressed concern about that incident, particularly in



____________________________________________


19
     Plaintiff’s Exhibit 15; N.T. 160-61.
20
     N.T., 2/11/13, pp. 159-60.
21
     N.T., 2/12/13, pp. 287, 332-33.
22
     N.T., 2/12/13, p. 322.
23
     Case Presentations 3, 4.



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J-A28042-14


light of Thode’s difficulty integrating considerations of culture of diversity

into her fieldwork, Thode had no response24.

        Finally, Thode behaved in a manner that reflected disdain for Carr’s

directions.     Carr recommended to Thode in a November 24, 2009,

memorandum that Thode discontinue seeing clients. Thode did not respond

to her directly, as requested, but rather came to the next class and told

another student across the room, in a voice loud enough for Carr to hear,

that she had in fact obtained a new client25.

        At the end of the semester, Carr gave Thode a grade of C+. Thode

filed grievances challenging her grade and the faculty’s conclusion that she

could not move forward in the program until she engaged in remediation.

Professor Ladany (Program Coordinator), Professor DuPaul (Department

Chair) and Professor Cates (Assistant Dean) all recommended denying

Thode’s grievances26.       Dean Cates also participated in the two university-

wide committees that handled the appeals of Thode’s grievances, the first

level called “SOGS” (Committee on the Standing of Graduate Students), and

the second called “GRC” (Graduate Research Committee).          Assistant Dean

Cates described the diligence with which the committees approached

Thode’s case, including a request by the GRC for additional information from

____________________________________________


24
     N.T., 2/12/13, p. 342.
25
     N.T., 2/12/13, pp. 296-98.
26
     Defense Exhibit 101.



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J-A28042-14


the College of Education27.         Both committees upheld the decision of the

College of Education to deny Thode’s grievances28.

       The relationship between a student and a private educational

institution such as the University is contractual in nature.         A student can

bring a cause of action against said institution for breach of contract where

the institution ignores or violates portions of the written contract. Swartley

v. Hoffner, 734 A.2d 915, 919 (Pa.Super.1999).               A contract between a

private institution and a student consists of “the written guidelines, policies,

and procedures as contained in the written materials distributed to the

student over the course of their enrollment in the institution.”         Id.   Said

another way, the essence of the bargain between student and university is

as follows: “A student has a reasonable expectation based on statements of

policy by [the school] and the experience of former students that if he

performs the required work in a satisfactory manner and pays his fees he

will receive the degree he seeks.”             Gati v. University of Pittsburgh of

Com. System of Higher Education, 91 A.3d 723, 731 (Pa.Super.2014)

(citation omitted).

       Schools have broad discretion to implement and enforce academic

rules and regulations.       Id.    Courts “show great respect for the faculty's

____________________________________________


27
  N.T., 2/13/14, pp. 636-649.
28
  Defense Exhibit 108 (noting “prolonged and thoughtful” review); Defense
Exhibit 121.



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J-A28042-14


professional judgment,” Swartley, supra, 734 A.2d at 921, and should not

interfere in a school's academic decisionmaking absent an abuse of

discretion. Id. Courts “may not override [the school's judgment] unless it

is such a substantial departure from accepted academic norms as to

demonstrate that the person or committee responsible did not actually

exercise professional judgment.” Id.

     There exists some question “regarding the extent to which we will

incorporate due process concepts into our analysis of a contractual dispute

between a student and a private school.” Gati, supra, 91 A.3d at 732 n.

14. The Gati court did not find it necessary to resolve this question, Id.,

and neither do we, because the evidence demonstrates that appellees acted

properly both under pure contract principles and due process precepts.

     Based on this record, we conclude that the trial court properly denied

judgment n.o.v. to Thode on her contract claim. Carr, in her role as Thode’s

practicum instructor, was responsible for evaluating whether Thode achieved

the necessary skills and competencies to work independently with clients

suffering from mental health issues.    In the exercise of her professional

judgment, Carr determined that Thode’s demeanor and professionalism, as

well as her mastery of core counseling concepts, were deficient. The College

of Education and two university-wide committees concurred with Carr’s

judgment after reviewing Carr’s evaluation of Thode’s performance.       Since

private educational institutions must have a wide berth in their academic


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J-A28042-14


decisionmaking, Swartley, Gati, supra, we decline to hold that Thode’s

grade was an abuse of discretion. The University furnished plausible reasons

for Thode’s grade of zero in class participation and her overall grade of C+.

Thode behaved childishly and unprofessionally in class on multiple occasions,

openly mocked Carr in the presence of another student, and failed to

prepare at least one important assignment. While another instructor might

have given a more lenient grade than zero for these infractions, we are

reluctant to make a judicial determination to overturn Thode’s grade. Courts

lack the expertise to micromanage the complex and highly subjective

endeavor of academic grading. Attempting to do so would invite an increase

in difficult and time-consuming lawsuits by students who are disgruntled

over grades, courses, teachers or other academic requirements29.


____________________________________________


29
   We reject Thode’s contention that the University’s evaluations of her lack
of maturity or self-insight are not true academic judgments and are thus
subject to strict judicial review. The CHS Program Manual requires each
instructor to “evaluate the students’ counseling-related competencies based
on the same measure that attends to counseling skills, behavior in
supervision, and professionalism.” Program Manual, p. 23. The manual thus
makes each student’s maturity and self-insight important factors in
evaluating her entitlement to a Master’s degree in counseling and human
services.

We also conclude that Thode overstates the importance of an e-mail (that
Thode calls a “smoking gun” memo) in which Carr states her belief that
Thode’s “long-standing mental health issues [are] negatively impacting her
performance.” We reiterate that the applicable standard of review requires
us to construe all of the evidence in the light most favorable to the
University. Viewed in this light, the evidence shows that Thode’s classroom
(Footnote Continued Next Page)


                                          - 12 -
J-A28042-14


      Finally, assuming that due process standards apply, the record

demonstrates that Thode received all the process to which she was due.

Three professors in the College of Education reviewed her grievance, and

two university-wide graduate committees did as well. The evidence shows

that Thode’s grievances were denied only after careful consideration. That is

all that the process required.           Gati, supra, 91 A.3d at 735 (university

provided due process to student by “afford[ing] [him] notice of the charges

against him and an opportunity to be heard”).

      Thode argues that the University “sabotaged” the grievance process by

taking too long (the entire winter of 2010 and most of the spring) to decide

her grievance. We can find nothing in the record setting a time limit for a

decision on Thode’s grievance.           Moreover, the evidence, construed in the

light most favorable to the University, demonstrates that Thode was

responsible for much of the delay, first by failing to respond to Ladany’s

invitation for Thode to meet with Carr and then by refusing to participate in

the grievance process unless the University met a series of “non-negotiable

demands.”30 Nor does Thode demonstrate how she suffered prejudice from

the delay.



                       _______________________
(Footnote Continued)

behavior, substandard preparation and disrespect for Carr justified her grade
of zero for class participation.
30
   Defense Exhibits 61, 65, 69.



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J-A28042-14


         In her second argument on appeal, Thode asserts that the court erred

in excluding an attachment to an e-mail which she claims would have

established her right of action under Title IX. We disagree. Title IX provides

that “[n]o person ... shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination

under     any   education program or     activity   receiving   Federal financial

assistance.”     20 U.S.C. § 1681(a).    Thode claims that she engaged in

protected activity under Title IX by complaining about discrimination against

gays, and that Carr discriminated against her for engaging in this activity.

The e-mail in question was in Carr’s possession and had anti-gay imagery.

Thode wanted the e-mail admitted into evidence to show that Carr held an

animus against gays, which in turn showed that Carr gave Thode a zero

because Thode advocated gay rights.       The court excluded the e-mail from

evidence but permitted Thode to cross-examine Carr about the e-mail during

trial.


         The admission or exclusion of evidence is within a trial court’s

discretion, and will only be reversed for an abuse of that discretion. Keffer

v. Bob Nolan’s Auto Service, Inc., 59 A.3d 621, 631 (Pa. Super. 2012).

Carr testified that she received the email from someone in a Bible study

group following a session that she missed. Without reading the email or the

attachment, she forwarded it to another woman who also missed the

session. When Carr looked at the attachment for the first time during this

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J-A28042-14


litigation, she saw negative imagery about gays that she does not condone.

She testified that she would not have forwarded the email had she known

what was in it31. We conclude that the court acted within its discretion by

excluding the email and the offensive attachment itself from evidence, since

Carr neither wrote nor agreed with the email attachment containing anti-gay

imagery.     We further find no prejudice from the exclusion of the email or

attachment, since the court allowed Thode’s counsel to cross-examine Carr

about the email to explore Carr’s views and any possible bias.


        Judgment affirmed.


        President Judge Gantman joins in the Memorandum.


        Judge Wecht concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014




____________________________________________


31
     N.T., 2/12/13, pp. 250-54.



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