IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LARRY M. WELENC,
Plaintiff,
C.A. No.: N17C-04-255 AML

V.

THE UNIVERSITY OF DELAWARE,

\/\/\/\_/\/\/\_/\/\_/

Defendant.

Submitted: August 24, 2017
Decided: November 20, 2017

MEMORANDUM OPINION

Upon Defendants’ Motion to Dismiss: Granted

Larry M. Welenc, Pro Se.

William E. Manning, Esq., and Gerard M. Clodomir, Esq. of SAUL EWING, LLP,
Wilmington, Delaware, Attorneys for the University of Delaware.

LeGROW, J.

This case involves the alleged breach of a 1981 settlement agreement
between a student of the University of Delaware and the University’s
administration, along with alleged defamation by the University regarding the
plaintiff’s academic and disciplinary record. The University has moved to dismiss
the claims as time-barred. The question before the Court is whether the claims
presented are barred by the statute of limitations when the plaintiff became aware
of the alleged breach and defamation back in 2000. Due to the extended time that
elapsed after the plaintiffs discovery of the facts underlying his claims, I conclude
the claims are time-barred and therefore grant the defendant’s motion. My
reasoning follows.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The following facts are drawn from the amended complaint and the
documents it incorporates, drawing all reasonable inferences in favor of the
plaintiff The facts involve events from the plaintiff’ s college years through 2001.

In 1978, Larry Welenc (“Welenc”) transferred from Rider College in New
Jersey to the University of Delaware (the “University”) to increase his chances for
admission to a master’s program in geology. In l979, Welenc won the lottery for a
room in Christina Hall dormitory. Before he moved into Christina Hall, Welenc
received a visit from two fellow students. One was another lottery-winning student

who was designated to room with Welenc, the other was the lottery-winner’s

friend, a tackle from the University’s football team. The visitors warned Welenc
that they would remove him if he tried to occupy the room in Christina Hall the
following spring. After the visitors left, Welenc reported the incident to the
Director of Department Housing. Based on this experience, Welenc avoided the
football team members and anyone associated with them.

Nine months after the incident, a female student, who was a known associate
of the other lottery-winner, charged Welenc with harassment. Five students
expressed their concerns with Welenc’s behavior to the Dean of Students,
Raymond Eddy. Dean Eddy, along with the University’s Behavior Evaluation
Committee (the “Committee”), required Welenc to meet with the University
Psychiatrist, Dr. Spinelli. Welenc had been off campus and did not receive the
request for appointment When Welenc failed to schedule an appointment with Dr.
Spinelli by the requested date, the Committee directed Welenc to be withdrawn
involuntarily from the University. Welenc, upon learning of the request, contacted
Student Health Services and scheduled an evaluative interview with Dr. Spinelli.
After the interview, Dr. Spinelli recommended Welenc’s readmission.

Meanwhile, the scheduled disciplinary hearing for Welenc’s alleged
harassment was canceled because the female accuser and her witnesses decided not
to attend the hearing. The Associate Dean of Students, Timothy Brooks, dropped

the disciplinary charges at the request of the security department The University

readmitted Welenc, but restricted his access to the residence and dining halls.
Welenc suspected the University administration made these restrictions made out
of malice.

During Easter break in 1980, campus security confiscated several marijuana
plants from the Pencader Dormitory. Welenc, though not a resident of Pencader,
interceded on the marijuana-growers’ behalf to Dean Eddy. Welenc alleges his
intercession contributed to the administration’s malice toward him.

As a result of the disciplinary procedure and involuntary withdrawal,
Welenc incurred out-of-pocket expenses, lost wages, and lost funds paid to the
University. He also grew concerned about the incident’s effect on his academic
record and wanted his file destroyed. On July 7, 1980, Welenc’s attorney, Norman
Levine, sent a letter to the University claiming $8,938.63 in damages

The University settled Welenc’s claim for $1,500 (the “Settlement
Agreement”). The letter confirming the Settlement Agreement stated Welenc’s
files would “be disposed of in the same manner as all student files.”l The
University also allegedly represented they would not delay issuing his diploma
upon graduation.

Welenc completed his course work in December 1979, but his major

required students to attend a summer field camp for geology in Nevada during the

 

1 Ex. l to Am. Compl.

summer of 1980. The University thus awarded Welenc his degree after completion
of the field camp in August 1980. Welenc’s diploma is dated 1981; Welenc
alleges he did not notice the date and assumed his diploma was dated 1980.

Since 1980, Welenc has applied to various government and private
positions Some of those applications were rejected, he believes, either because of
the date on his diploma or because the University conveyed to those prospective
employers an inaccurate version of Welenc’s disciplinary record.

Sometime in the year 2000, Welenc discovered his diploma was dated 1981,
rather than 1980, and he so informed the University.2 The University explained to
Welenc that, at the time his diploma was issued, the University only issued
diplomas once every academic year and, because Welenc did not complete his
coursework by May 1980, his diploma was not issued until the following academic
year. Despite Welenc’s efforts, the University declined to change the date on the
diploma. In April 2017, Welenc filed suit against the University alleging breach of
contract, defamation, and slander, as well as an order compelling the University to

change the date on his diploma. The University moved to dismiss and the parties

 

2 Am. Compl. at 14. “Plaintiff eventually discovered that the date listed on his diploma was
incorrect and informed the University of Delaware that the date [sic]. The University of
Delaware staff maintained during telephone conversations with the Plaintiff after the year 2000
that the 1981 completion date was the result of Plaintiff attending Summer Field Camp in 1980
and not completing his degree until [sic] date August 9, 1980, resulting in a completion date of
the following year.” Id. Welenc conceded during oral argument that he was aware in 2000 that
his diploma was dated in 1981, that the University contended diplomas only were issued once a
year, and that he also was aware at that time that his 1988 diploma was issued in December
1988, a fact arguably inconsistent with the University’s explanation. See Ex. K to Am. Compl.

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briefed and argued that motion. Welenc also moved to sanction the University’s
attorney for alleged derogatory statements and accusations of harassment

THE PARTIES’ CONTENTIONS

Welenc argues the University maliciously altered the date of his diploma and
retained and disclosed the contents of his student file because of` the disciplinary
incidents in 1979 and 1980, Welenc first argues the post-dating of his diploma, as
well as the retention of his student file, is a breach of the 1981 Settlement
Agreement with the University. He seeks an order compelling the University to
change the date of his diploma to reflect the calendar year of his graduation.
Welenc also argues the University defamed him by misrepresenting the date of his
graduation and by disclosing his record to potential employers to which Welenc
submitted job applications In response, the University argues all Welenc’s claims
are barred by the statute of limitations
STANDARD OF REVIEW

On a motion to dismiss, the Court must determine whether the “plaintiff may
recover under any reasonably conceivable set of circumstances susceptible of
proof.”3 “If [the plaintiff] may recover, the motion must be denied.”4 A court may

grant the motion if “it appears to a reasonable certainty that under no state of facts

 

3 Holmes v. D’Elia, 129 A.3d 881 (Del. 2015) (citing Spence v. Funk, 396 A.2d 967, 968 (Del.
1978)).

4 Deuley v. DynCorp Im"l, Inc., 2010 WL 704895, at *3 (Del. Super. Feb. 26, 2010) (citing
Parlz'n v. DynCorp Int’l, Inc., 2009 WL 3636756, at *1 (Del. Super. Sept. 30, 2009) (quoting
Spence, 396 A.2d at 968)), ajj"d, 8 A.?>d 1156 (Del. 2010).

5

which could be proved to support the claim asserted would plaintiff be entitled to
relief.”5 When applying this standard, the Court accepts as true all non-conclusory,
well-pleaded allegations6 In addition, “a trial court must draw all reasonable
factual inferences in favor of the party opposing the motion.”7 A defense based on
a Statute of limitations may be raised in a motion to dismiss when the complaint
itself shows that the claims were not brought within the statutory period.8
ANALYSIS

A. The claims based on breaches of the 1981 Settlement Agreement

claim are time-barred because Welenc was on actual notice of the
claims by the year 2000.

Welenc argues the University breached the Settlement Agreement by
changing his diploma’s completion date and by maintaining a record of his student
file. Welenc alleges that, during settlement negotiations, the University stated it
would not hold up his diploma upon graduation.9 Welenc argues that instead of
withholding his diploma, the University maliciously altered the completion date in
violation of the Settlement Agreement Welenc further contends the University

breached that Agreement by continuing to retain a copy of his student file.

 

5 Fish Eng’g Corp. v. Hutchinson, 162 A.2d 722, 724 (Del. 1960) (citing Danby v. Osteopathic
Hosp. Ass’n ofDel., 101 A.2d 308, 315 (Del. Ch. 1953), ajj”’d, 104 A.2d 903 (Del. 1954)); Nero
v. Littleton, 1998 WL 229526, at *3 (Del. Ch. Apr. 30, 1998).

6 Pfejj%r v. Redstone, 965 A.2d 676, 683 (Del. 2009).

7 Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005) (citing Ramunno, 705 A.2d 1029, 1034 (Del.
1998) (citing Solomon v. Pathe Commc’ns Corp., 672 A.2d 35, 38 (Del. 1996)) (other citations
omitted)).

8 Lima Delta Co. v. Global Aerospace, lnc., 2017 WL 4461423, *5 (Del. Super. Oct. 5, 2017).

9 I note that nothing in the record memorialized this representation See Ex. l to Am. Compl.

6

Under Delaware law, no action to recover damages arising out of breach of
contract may be brought after the expiration of three years from the date the cause
of action accrues.lo Such a claim accrues as soon as the wrongful act occurs, even
if the plaintiff is ignorant of the wrong.ll For breach of contract claims, the cause
of action accrues at the time of the breach.12 Therefore, under Welenc’s alleged
facts, the claims accrued when the University (l) issued Welenc’s diploma in
1981, and (2) maintained a record of his student file in a manner inconsistent with
its treatment of other student files

The statute of limitations may be tolled, however, when the claim involves
inherently unknowable injuries or the doctrines of equitable tolling or fraudulent
concealment apply.13 ln such a case, the statute only is tolled “until the plaintiff
discovers (or exercising reasonable diligence should have discovered) his injury-
that is to say, until plaintiff is on inquiry notice. A “[p]laintiff is on inquiry notice
if he is in possession of facts sufficient to make him suspicious or that ought to
make him suspicious.”14

With respect to Welenc’s claims regarding the date on his diploma, even if

tolling applied, Welenc arguably was on inquiry notice as early as 1981, when he

received his diploma, and was on actual notice of sufficient facts no later than the

 

1010 Del. C. § 8106.

11All)erz‘v. Alex. Brown Mgmt. Serv., Inc., 2005 WL 5750601, *18 (Del. Ch. Jun. 29, 2005).
12 Certaineed Corp. v. Celotex Corp., 2005 WL 217032 *7 (Del. Ch. Jan. 24, 2005).

13 sz¢h v. McGee, 2006 wL 3000363, *3 (Del. Ch. oct 16, 2006).

14 Id. (internal quotations omitted).

year 2000. In his amended complaint and at oral argument, Welenc conceded that
he inquired about the diploma date discrepancy during telephone conversations he
had with University staff in 2000. Consequently, Welenc concedes he was on
actual notice of the alleged breach of the Settlement Agreement in 2000.15
Welenc’s claim for breach of the Settlement Agreement therefore is time-barred, as
is his request for an order compelling the University to change the date on the
diploma.16

Additionally, notwithstanding the statute of limitations, no reasonable
inference supports the assertion that the University breached the Settlement
Agreement by maintaining a record of Welenc’s student file. As explained below,
Welenc was on inquiry notice more than three years ago that the University
continued to maintain his file. Moreover, Welenc’s Amended Complaint does not
plead that the University treated Welenc’s file in a manner different from other
student files The University agreed that Welenc’s “University files w[ould] be
disposed of in the same manner as all student files.” 17 Welenc has pleaded no
facts to support an inference that the University acted in a manner inconsistent with

the Settlement Agreement

 

15 At oral argument, Welenc argued he could not bring his claim until 2015, when he had a
written statement from senior University personnel of the University’s purportedly false
explanation for the date of the diploma. Welenc conflates the “evidence” necessary to prove his
claim with the knowledge of facts sufficient to make him suspicious

16 Of course, if this claim survived, this Court would not have subject matter jurisdiction to grant
Welenc injunctive relief.

17 Ex. I to Am. Compl.

B. Welenc’s defamation claims are time-barred by his actual discovery
of the underlying facts more than fifteen years ago.

Welenc claims the University committed defamation by misrepresenting his
graduation year or his disciplinary record to potential employers Welenc argues
his reputation was maligned by the implication that Welenc required six years to
complete his bachelor’s degree or involuntarily was withdrawn from the
University.

No action to recover damages arising out of a tort claim, such as defamation,
may be brought after the expiration of three years from the date the cause of action
accrues18 As noted above, the action accrues at the time of the wrongful act, and
any tolling doctrine applies only until a party is on inquiry notice of his claim.

Welenc’s tort claims are time-barred for the same reasons as his breach of
contract claim. In his amended complaint, Welenc claims he applied to several
employers, the last of which was the New Jersey Gaming Board in 2001. Even if
the University conveyed false information that was harmful to his reputation,
Welenc had actual notice by 2000 that his diploma was dated in 1981 and that his
student file had not been destroyed, therefore allowing University officials to
access it in response to employer inquiries As a result, 2003 was the last year
Welenc could have brought a defamation claim under the circumstances alleged in

his complaint Welenc’s defamation claims therefore are time-barred.

 

18101)€1.€. §8106.

C. Sanctions against the University’s attorneys are not Warranted.

While the University’s motion to dismiss was pending, Welenc attempted to
propound discovery on the University, prompting the University to move to stay
discovery while the Court resolved the motion to dismiss19 In response, Welenc
moved to strike one of the brief’s exhibits and sought sanctions against the
University’s attorney for making allegedly untrue, unethical, and derogatory
statements The University did not oppose Welenc’s motion to strike and the
Court granted the motion. The Court also granted the University’s motion to stay

discovery.
Rule 37 (a)(4)(A) provides:

If the motion is granted or if the disclosure or requested
discovery is provided after the motion was filed, the
Court shall, after affording an opportunity to be heard,
require the party or deponent whose conduct necessitated
the motion or the party or attorney advising such conduct
or both of them to pay to the moving party the reasonable
expenses incurred in obtaining the order, including
attomey’s fees, unless the Court finds that the opposition
to the motion was substantially justified or that other
circumstances make an award of expenses unjust20

 

19 Def.’s J. Mot. Stay and Opp’n to Pl.’s Mot. Compel. Citing Anderson v. Airco, Inc. , 2004 WL
2828208, at *1 (Del. Super. Feb. 23, 2004) (“A stay of discovery is appropriate where a
potentially case dispositive motion is pending, and there is no prejudice to the non-moving
party.") (internal quotations omitted).

" super Ct. Civ. R. 37(21)(4)(A).

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This Court has discretionary power under Rule 37 so that cases are decided on
their merits, not on technicalities21

Sanctions against an attorney only are appropriate under Rule 37(a)(4) if the
Court first has granted a motion to compel discovery. Here, rather than grant
Welenc’s motion to compel, the Court granted the University’s motion to stay.
The University’s opposition to the motion thus substantially was justified and
Welenc’s motion for sanctions is unwarranted To the extent Welenc seeks
sanctions based on the motion to strike, the Court does not believe counsel’s
actions were inappropriate or warrant an award of sanctions
CONCLUSION

For the foregoing reasons, the University’s Motion to Dismiss is

GRANTED and Welenc’s Motion to Impose Sanctions is DENIED.

 

21 Williams v. Hall, 176 A.2d 608, 616 (Del. super 1961).
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