J-A11001-17


                                  2017 PA Super 229

DANIELLE MCCABE,                                   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellant

                       v.

MARYWOOD UNIVERSITY,

                             Appellee                  No. 1436 MDA 2016


                Appeal from the Order Entered August 10, 2016
             In the Court of Common Pleas of Lackawanna County
                      Civil Division at No(s): 16-CV-2550


BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E.*

OPINION BY SHOGAN, J.:                                   FILED JULY 18, 2017

       Danielle McCabe (“McCabe”) appeals from the order sustaining

preliminary objections filed by Marywood University (“Marywood”) and

dismissing her claims for breach of contract, breach of good faith and fair

dealing, violation of the Unfair Trade Practices and Consumer Protection Law

(“UTPCPL”), unjust enrichment, and promissory estoppel. We affirm.

       Marywood is a private university in Scranton, Lackawanna County,

Pennsylvania. It operates a department of nursing, providing academic and

clinical courses in support of a Bachelor of Science Degree in Nursing (“the

nursing program”).          Upon graduation, nursing students take the National

Council Licensure Examination (“NCLEX”) in order to obtain a license to
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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practice nursing. Prior to 2010, the nursing program was fully accredited by

the National League for Nursing Accreditation Commission (“NLNAC”),

currently known as the Accreditation Commission for Education in Nursing.

Marywood underwent an NLNAC accreditation review in the spring of 2010,

after which NLNAC granted it accreditation until 2018 with conditions.

Marywood had two years in which to make changes to the nursing program

or its NLNAC accreditation would be revoked.        As of the fall of 2010,

Marywood continued to represent on its website and in its printed literature

that the nursing program was accredited, without defining or qualifying that

status.

      McCabe entered Marywood as a nursing student in August of 2011.

On November 13, 2011, chair of the nursing department, Dr. Mary Alice

Golden, R.N., informed current and prospective students by letter that

Marywood’s accreditation status with the Pennsylvania State Board of

Nursing had been downgraded to “provisional” as a result of a lower passing

rate on the NCLEX. Two days later, Dr. Golden issued a clarification letter,

explaining that the “provisional” state nursing board status had no effect on

the nursing program’s NLNAC accreditation status.

      In November of 2012, an NLNAC Evaluation Review Panel (“ERP”)

inspected Marywood for the purpose of evaluating the nursing program’s

accreditation status. On January 30, 2013, Marywood learned that the ERP

was recommending revocation of Marywood’s NLNAC accreditation.            On


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April 2, 2013, NLNAC notified Marywood that the nursing program’s

accreditation had been revoked for failing to meet certain standards and

criteria. On April 10, 2013, a few weeks before McCabe’s second-year final

exams, Marywood informed the nursing program students that it had lost

NLNAC accreditation.        Marywood then timely appealed the revocation on

April 22, 2013. Pursuant to NLNAC policy, Marywood’s appeal restored its

conditional accreditation with warning status during the pendency of the

appeal. In August of 2014, the NLNAC restored the nursing program’s full

accreditation. Of note, had Marywood not prevailed on appeal, revocation of

the nursing program’s accreditation would have been retroactive to April 2,

2013.

        As a result of the nursing program’s conditional accreditation status,

McCabe chose not to return to Marywood in the fall of 2013. Instead, she

transferred to another school. On April 20, 2016, McCabe filed suit against

Marywood for damages, i.e., the various expenses incurred as a result of

transferring schools, as well as a loss of income and employment

opportunities due to her delayed graduation.      Marywood filed preliminary

objections on May 24, 2016, which the trial court sustained.      This appeal

followed. McCabe and the trial court complied with Pa.R.A.P. 1925.1

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1
  The trial court adopted its August 10, 2016 order and opinion disposing of
Marywood’s preliminary objections as its Pa.R.A.P. 1925(a) opinion. Order,
12/19/16.



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      McCabe raises the following issues for our consideration:

      I.     Whether the trial court erred in finding that Ms. McCabe
             did not plead sufficient facts to establish a duty on
             Marywood to provide Ms. McCabe with an education from a
             fully-accredited nursing program?

      II.    Whether the trial court erred in finding that Ms. McCabe
             did not suffer harm as a result of her reliance on
             fraudulent misrepresentations made by Marywood?

      III.   Whether the trial court erred in finding that Marywood was
             not unjustly enriched by receiving tuition from Ms. McCabe
             despite falsely representing its accreditation status and
             ultimately losing its accreditation?

      IV.    Whether the trial court erred in dismissing Ms. McCabe’s
             claim for promissory estoppel when Marywood falsely
             represented its accreditation status and ultimately lost its
             accreditation?

McCabe’s Brief at 4 (full capitalization omitted).

      Our standard and scope of review over a trial court’s decision to

sustain a litigant’s preliminary objections are well settled:

      Our standard of review mandates that on an appeal from an
      order sustaining preliminary objections which would result in the
      dismissal of suit, we accept as true all well-pleaded material
      facts set forth in the appellant’s complaint and all reasonable
      inferences which may be drawn from those facts. This standard
      is equally applicable to our review of PO’s in the nature of a
      demurrer. Where, as here, upholding sustained preliminary
      objections would result in the dismissal of an action, we may do
      so only in cases that are clear and free from doubt. To be clear
      and free from doubt that dismissal is appropriate, it must appear
      with certainty that the law would not permit recovery by the
      plaintiff upon the facts averred. Any doubt should be resolved
      by a refusal to sustain the objections. We review for merit and
      correctness—that is to say, for an abuse of discretion or an error
      of law. This case was dismissed at the preliminary objections
      stage on issues of law; our scope of review is thus plenary.


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Reardon v. Allegheny Coll., 926 A.2d 477, 480 (Pa. Super. 2007) (quoting

Donahue v. Federal Express Corp., 753 A.2d 238, 241 (Pa. Super.

2000)).

       In her first issue, McCabe argues that Marywood breached its

contractual duty to provide a fully accredited nursing education. McCabe’s

Brief at 16–28.2      In support of her position, McCabe relies on Marywood’s

website and literature as the terms of an implied contract to provide her with

an opportunity to graduate from a fully accredited nursing program in

exchange for the payment of tuition.             Complaint, 4/20/16, at ¶ 32, 56,

Exhibits C and D.        Marywood responds that McCabe failed to plead the

elements for breach of contract and that the nursing program was accredited

by the NLNAC at all relevant times, including when McCabe voluntarily chose

to transfer to another school. Marywood’s Brief at 9–14.3

____________________________________________


2
    In her complaint and on appeal, McCabe also averred that Marywood
breached a duty of good faith and fair dealing. Complaint, 4/20/16, at ¶¶
68–72; McCabe’s Brief at 28. We deem any issue regarding the dismissal of
this claim waived for lack of citation and supporting argument.              See
Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as
there are questions to be argued; and shall have at the head of each part--in
distinctive type or in type distinctively displayed--the particular point treated
therein, followed by such discussion and citation of authorities as are
deemed pertinent.”). Even if not waived, Pennsylvania does not recognize
an independent cause of action for breach of a covenant of good faith and
fair dealing. Hanaway v. Parkesburg Grp., LP, 132 A.3d 461, 471 (Pa.
Super. 2015).
3
   We note Marywood’s and the trial court’s reliance on a factually similar
case also decided by the Lackawanna County Court of Common Pleas and
(Footnote Continued Next Page)


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      We recognize “that the relationship between a private educational

institution and an enrolled student is contractual in nature.”    Swartley v.

Hoffner, Lehigh University, 734 A.2d 915, 919 (Pa. Super. 1999).

“[T]hree elements are necessary to plead a cause of action for breach of

contract: (1) the existence of a contract, including its essential terms, (2) a

breach of the contract; and, (3) resultant damages.”        412 N. Front St.

Associates, LP v. Spector Gadon & Rosen, P.C., 151 A.3d 646, 657 (Pa.

Super. 2016) (quoting Meyer, Darragh, Buckler, Bebenek & Eck,

P.L.L.C. v. Law Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258

(Pa. 2016)).

      McCabe argues that “the various publications and materials produced

by Marywood” contain the terms of the contract and that the term

“accredited” denotes full accreditation rather than conditional or provisional.

                       _______________________
(Footnote Continued)

disposed of on preliminary objections, Colletti v. Marywood, 2015-CV-
1537 (Lackawanna Co. 2015). Marywood and the trial court suggest that
the coordinate jurisdiction rule required the same result in this case as in the
Colletti case, i.e., the sustaining of Marywood’s preliminary objections and
the dismissal of McCabe’s complaint. We disagree with this premise. The
coordinate jurisdiction rule provides that “judges of coordinate jurisdiction
should not overrule each other’s decisions.” Keffer v. Bob Nolan’s Auto
Serv., 59 A.3d 621, 630 (Pa. Super. 2012) (citation omitted); see also
Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 282 (Pa.
Super. 2016) (discussing coordinate jurisdiction rule as component of “law of
the case” doctrine). Although factually similar, the case at hand and the
Colletti case do not involve different judges of the Lackawanna County
Court of Common Pleas sitting on the same case. Rather, they are two
distinct lawsuits. Thus, the coordinate jurisdiction rule does not apply.
Keffer, 59 A.3d at 639.



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McCabe’s Brief at 17. The trial court concluded that McCabe “did not plea[d]

sufficient material facts, nor cite pertinent contractual language which would

establish a duty on [Marywood] to provide [McCabe] with a fully

accredited nursing program. [Marywood’s] demurrer to [McCabe’s] cause

of action for breach of contract is SUSTAINED.”           Trial Court Opinion,

8/10/16, at 3 (emphasis supplied).

      Our review of the record reveals support therein for the trial court’s

conclusion, although we affirm on a different basis. See Wakeley v. M.J.

Brunner, Inc., 147 A.3d 1, 5 (Pa. Super. 2016), appeal denied, 145 A.3d

728 (Pa. 2016) (“[I]t is well settled that if the court’s decision is correct, we

may affirm on any ground.”).       Marywood’s publications indicate that the

nursing program was accredited by the NLNAC. See McCabe’s Brief at 19

(quoting language from Marywood’s 2010 website and handbook; Complaint,

4/20/16, at Exhibits C and D). Accepting as true McCabe’s argument that

she contracted with Marywood for the opportunity to graduate from a fully

accredited nursing program, Complaint, 4/20/16, at ¶ 56, we discern no

breach of contract.   McCabe enrolled in the nursing program in the fall of

2011. McCabe acknowledged that Marywood “was granted and it retained

full accreditation status sometime in August 2014.” Plaintiff’s Response to

Preliminary Objections, 6/13/16, at ¶ 19.          Thus, Marywood was fully

accredited at all relevant times and afforded McCabe the opportunity to

graduate from a fully accredited nursing program and to sit for her licensure


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exam upon graduation in the spring of 2015.          McCabe did not aver that

Marywood’s      conditional   or   temporarily-revoked   accreditation      status

prevented her from graduating from a fully accredited nursing program or

from sitting for her licensure exam.     Rather, her “lawsuit is premised on

speculation as to what would have happened if Marywood’s nursing program

lost its nursing school accreditation.” Defendant’s Reply Brief in Support of

Its Preliminary Objections to Plaintiff’s Complaint, 7/28/16, at 1 (emphases

in original).   The law does not permit recovery by McCabe upon the facts

averred. Thus, we discern no abuse of the trial court’s discretion or error of

law in ruling that McCabe failed to state a claim for breach of contract.

      In her second issue, McCabe argues that the trial court erred in finding

she did not suffer harm as a result of relying on Marywood’s false and

misleading representations about the nursing program’s accreditation status.

McCabe’s Brief at 28–36. Additionally, referring to the UTPCPL, but without

identifying any specific provisions, McCabe argues that Marywood’s unfair or

deceptive acts and practices deceived her and made a difference in her

education purchasing decision.       Id. at 36–40.     In response, Marywood

claims that it did not make any material misrepresentations because it was

accredited by the NLNAC at all times, and Pennsylvania does not recognize

claims for something that might have occurred. Marywood’s Brief at 15–18.

According to Marywood, McCabe voluntarily transferred schools—despite the




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fact that Marywood retained is accreditation at all relevant times—and,

therefore, McCabe cannot demonstrate harm. Id. at 16–17.

      The UTPCPL provides a private cause of action to any person who, as a

result of conduct that the UTPCPL prohibits, “suffers any ascertainable loss

of money or property, real or personal.” 73 P.S. § 201–9.2(a). “To bring a

private cause of action under the UTPCPL, a plaintiff must show that he

justifiably relied on the defendant’s wrongful conduct or representation and

that he suffered harm as a result of that reliance.”     Yocca v. Pittsburgh

Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004).

     In disposing of this claim, the trial court opined as follows:

     This [c]ourt finds that [McCabe] has not shown that she suffered
     harm as a result of her reliance [on] the alleged deception of
     Marywood University. Rather [McCabe’s] harms come from her
     decision to transfer schools. [McCabe] claims that she was forced
     to    transfer     schools   due     to    [Marywood’s]   alleged
     misrepresentations of its accreditation status.     However, as
     admitted by all parties, [Marywood’s] nursing program never
     actually lost its . . . NLNAC accreditation. [Marywood’s] nursing
     program maintained provisional accreditation status throughout
     the complained of time frame and achieved full accreditation
     status in August of 2014. [Marywood’s] Demurrer to Count III of
     the Complaint is SUSTAINED.

Trial Court Opinion, 8/10/16, at 4.

      Upon review, we conclude that the record supports the trial court’s

finding that McCabe’s “harms come from her decision to transfer schools.”

Trial Court Opinion, 8/10/16, at 4. As explained above, McCabe averred that

she paid tuition for the opportunity to graduate from a fully accredited

nursing program. Complaint, 4/20/16, at ¶ 56. McCabe also averred that

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Marywood misrepresented its NLNAC accreditation status and that she

justifiably relied on its misrepresentations.    Id. at 75–76.      However,

nowhere in her complaint did McCabe aver that Marywood denied her the

opportunity to graduate from a fully accredited nursing program by allegedly

misrepresenting the nursing program’s accreditation status.         Thus, we

discern no abuse of the trial court’s discretion or error of law in sustaining

Marywood’s preliminary objections to McCabe’s UTPCPL claims.

      Next, McCabe argues that Marywood was unjustly enriched by her

payment of tuition for a nursing program that was not fully accredited.

McCabe’s Brief at 40–41. Marywood counters that the nursing program was

accredited at all relevant times and McCabe could have graduated from a

fully accredited program if she had stayed at Marywood. Marywood’s Brief

at 19–20.

      To sustain a claim of unjust enrichment, a claimant must show
      that the party against whom recovery is sought either wrongfully
      secured or passively received a benefit that it would be
      unconscionable for her to retain. The application of the doctrine
      depends on the particular factual circumstances of the case at
      issue. In determining if the doctrine applies, our focus is not on
      the intention of the parties, but rather the most critical element
      of this equitable doctrine, which is whether the enrichment of
      the defendant is unjust. The doctrine does not apply simply
      because the defendant may have benefited as a result of the
      actions of the plaintiff.

Gutteridge v. J3 Energy Grp., Inc., ___ A.3d ___, 2017 PA Super 150

(Pa. Super. filed May 17, 2017) (internal quotation marks and citations

omitted).


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      The trial court disposed of this issue with the following analysis:

      This [c]ourt finds that [McCabe] has not adequately
      demonstrated that [Marywood] has been unjustly enriched.
      [McCabe] voluntarily chose to transfer schools and lose the
      academic credits she had accumulated at Marywood.
      [Marywood’s] demurrer to Count IV of the Complaint is
      SUSTAINED.

Trial Court Opinion, 8/10/16, at 4.

      Even accepting as true McCabe’s well-pleaded material facts and all

reasonable inferences which may be drawn from those facts, we agree with

the trial court’s conclusion.   McCabe paid tuition and received academic

credit for courses she enrolled in as a student in the nursing program from

the fall of 2011 through the spring of 2013.        McCabe fails to demonstrate

how Marywood’s retention of McCabe’s tuition for the academic credits she

earned from an accredited nursing program—credits she then lost by

voluntarily transferring schools—qualifies as unjust enrichment.       Thus, we

conclude that the trial court did not abuse its discretion or commit an error

of law in sustaining Marywood’s demurrer to Count IV of McCabe’s

complaint.

      Lastly, McCabe argues that, because Marywood promised her a fully

accredited nursing program in exchange for tuition payments, it is estopped

from denying liability on its promise.         McCabe’s Brief at 41.   Marywood

contends that this argument is a re-characterization of McCabe’s breach-of-

contract claim and, similarly, is unsupported by sufficient evidence.

Marywood’s Brief at 21.

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       According to the trial court:

       [McCabe’s] claims for damages are based on the alleged
       misrepresentation that the NLNAC/ACEN accreditation for
       [Marywood’s] nursing program was revoked by the accrediting
       body and [McCabe] was forced to transfer school or graduate
       from an unaccredited program. However, [Marywood’s] program
       never lost accreditation, and [McCabe] voluntarily chose to
       transfer. Accordingly [Marywood’s] demurrer to Count V is
       SUSTAINED.

Trial Court Opinion, 8/10/16, at 5.

       We conclude that McCabe has waived this issue.          In violation of

Pa.R.A.P. 2119(a), her argument consists of one paragraph with no citation

to authority or developed analysis.4

       In conclusion, we discern no basis on which to disturb the trial court’s

rulings.    Thus, we affirm the order sustaining Marywood’s preliminary

objections and dismissing McCabe’s complaint.

       Order affirmed.




____________________________________________


4
  Even if not waived, this claim does not warrant relief. The record supports
the trial court’s findings, and its legal conclusion is without error. Marywood
advertised that the nursing program was accredited. Not unreasonably,
McCabe assumed the nursing program was fully accredited. Upon learning
that the nursing program’s accreditation status had been revoked, albeit
temporarily, McCabe chose to transfer schools, thereby incurring financial
and educational damages. McCabe did not aver that Marywood’s NLNAC
accreditation status prevented her from receiving a fully accredited
education or graduating from a fully accredited program. On this record, we
would conclude that the trial court did not err in sustaining Marywood’s
demurrer and dismissing McCabe’s promissory estoppel claim.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2017




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