OPINION BY TAMILIA, J.:
¶ 1 Laura Reardon appeals from the August 15, 2006, Order dismissing her complaint with prejudice and sustaining appellees' preliminary objections in the nature of a demurrer.
¶ 2 The trial court found the following facts. See Trial Court Opinion, Folino, J., 10/4/06, at 1-2. Appellant was a student at Allegheny College (Allegheny) majoring in music with a minor in biology, having since graduated. During the spring semester of 2004, appellant, as part of her biology curriculum, enrolled in an investigative laboratory biology course taught by appellee Margaret Nelson. Professor Nelson assigned appellant, appellee Stacy Miller, and appellee Megan Reilly to work on a lab experiment as a group. Each student was required to submit an individual paper analyzing the results of the experiment upon completion.
¶ 3 When Professor Nelson viewed the class paper submissions, she immediately suspected plagiarism as appellant and Reilly's papers contained identical sections. Upon further reflection, Professor Nelson's suspicions pointed to appellant as the plagiarizer. Shortly thereafter, Allegheny's administration was notified of appellant's indiscretion.
¶ 4 The trial court concluded Allegheny faithfully adhered to its internal procedure in adjudicating the plagiarism charge. First, a panel of the Honors Committee was convened and it determined there was a reasonable likelihood that appellant had violated the Honor Code, thereby warranting further action. Next, the College Judicial Board (CJB) conducted a lengthy adjudicatory hearing wherein appellant was given the opportunity to present evidence and confront the witnesses offered against her. The CJB found appellant guilty of plagiarism and imposed a failing grade for the biology lab course; stripped appellant of her Latin Honors; ordered appellant to complete community service; and placed appellant on academic probation for the duration of her academic career at Allegheny. Appellant then was afforded the opportunity, as of right, to appeal to the school's President who affirmed the findings and disposition of the CJB.
¶ 5 On April 7, 2006, appellant filed a written complaint raising claims for breach of contract against Allegheny and, in a separate count, against Professor Nelson; claims for defamation against Allegheny and Professor Nelson and, in a separate count, defamation claims against both Miler and Reilly. She also pursued a claim for the intentional infliction of emotional distress against Allegheny, Professor Nelson, Miller, and Reilly. Record, No. 6. After appellees filed preliminary objections that were sustained, appellant filed an amended complaint raising, with more specificity, the claims that had been raised in the first complaint along with a newly pled negligence claim against both Allegheny and Professor Nelson. Appellee responded by demurring to all six counts contained in the amended complaint. Following dismissal of the amended complaint, appellant perfected a timely appeal with this Court in which she raises the following issues:
Appellant's brief at 7.
¶ 6 Our standard and scope of review over a trial court's decision to sustain a litigant's preliminary objections are well-settled:
¶ 7 Appellant contends Allegheny breached its contract with her by failing to follow its promised internal procedure for disposing of academic misconduct claims. She further contends Allegheny breached the contract by conducting the process in a "flawed, biased, and unfair" manner.
¶ 8 The relationship between a privately funded college and a student has traditionally been defined in this Commonwealth as strictly contractual in nature. Barker v. Trustees of Bryn Mawr College, 278 Pa. 121, 122, 122 A. 220, 221 (1923); see also, Ross v. Pennsylvania State Univ., 445 F.Supp. 147, 152 (M.D.Pa.1978). As such, we review the agreement between the parties concerning disciplinary procedures, contained within a portion of the student handbook known as
¶ 9 Appellant does not contend the language of
¶ 10 A thorough review of
¶ 11 A thorough review of appellant's amended complaint reveals appellant acknowledges a hearing did take place on May 1, 2004. Record, No. 12 at 8. In a not so creative attempt at subterfuge, appellant contends over and over again that she was not informed of the September 1, 2004, hearing, yet she never once states she did not receive notice of the May 1, 2004 hearing.
¶ 12 Appellant also attacks the actual proceedings themselves by forwarding a laundry list of complaints, wherein she contends Allegheny breached
¶ 13 Assuming, as we must, that all of these contentions, as laid out in appellant's amended complaint, are true, we still conclude appellant is not entitled to relief.
¶ 14 The parties' agreement, embodied in
¶ 15 We conclude the trial court properly dismissed appellant's breach of contract
¶ 16 Appellant's next issue challenges the trial court's disposition of her breach of contract claim against Professor Nelson. Appellant contends that as a student she was an intended third-party beneficiary of any existing employment contract between Professor Nelson and Allegheny. Appellant argues that Professor Nelson, as part of her employment contract with Allegheny, "failed to follow and/or uphold the college policies and procedures by unfairly biasing the judicial process against the Plaintiff and disrupting the requirement of a fair and impartial hearing." Id.
¶ 17 For the sake of argument, we will accept appellant's assertion that she was a third-party beneficiary of any existing employment contract. But see contra, Burks v. Fed. Ins. Co., 883 A.2d 1086, 1088 (Pa.Super.2005) ("In order for a third party beneficiary to have standing to recover on a contract, both contracting parties must have expressed an intention that the third party be a beneficiary, and that intention must affirmatively appeared in the contract itself.") (citation omitted).
¶ 18 This suggestion is problematic.
¶ 19 As to appellant's defamation claims against Allegheny, Professor Nelson, Miller, and Reilly, a plaintiff seeking to establish a claim for defamation and, more specifically, for slander has the burden of proving: 1) the defamatory nature of the alleged communication(s);
¶ 20 The initial determination of whether a communication is slanderous is a question of law for the Court to decide. Walker v. Grand Central Sanitation, 430 Pa.Super. 236, 634 A.2d 237, 240 (1993). A communication is slanderous if it is intended to lower the view of the target of the communication in the community or if it is intended to deter third persons from associating with the target. In determining whether a communication is slanderous, the Court must determine the effect of the communication in the minds of average people amongst whom the communication is intended to circulate. A statement that is merely an expression of an opinion, however, cannot constitute slander. Id.
¶ 21 Appellant points to four statements, allegedly made by Professor Nelson, in attempting to demonstrate slander. The first is a statement allegedly made by Professor Nelson to Mary Zoller, chair of the Honor Committee panel, a panel of students who hear suspected violations of the Honor Code, wherein the professor stated: "I now highly suspect that both [Miller] and [Reilly] are innocent." Record, No. 12 at 7. This statement is nothing more than an opinion and, as such, cannot constitute slander as a matter of law. Walker, supra at 240.
¶ 22 Next, appellant points to another statement allegedly made by Professor Nelson to Chairperson Zoller: "[C]oupled with the fact that she's now got `clones' of two other students' reports in there, it seems rather suggestive to me." Record, No. 12 at 19. Again, this is a clear expression of opinion that is not actionable as a matter of law.
¶ 23 The third statement upon which appellant relies, again allegedly made by Professor Nelson to Zoller, is as follows: "[I]t didn't really occur to me that someone might have snitched work from two other students." Record, No. 12 at 7. The use of the phrase "might have" is a strong indication that this statement is merely one outlining possibilities—it was not intended to attack appellant's reputation in the community. Walker, supra at 240. As such, this statement also is not actionable slander.
¶ 24 Appellant points to one final statement, wherein Professor Nelson allegedly told Honor Committee members that sections of appellant's lab paper "matched" sections of appellee Miller and appellee Reilly's papers. Record, No. 12 at 8. The intent of this statement, however, was not to impugn appellant's character but, rather, to impart the factual basis upon which Professor Nelson was forwarding her opinion
¶ 25 Appellant also contends appellee Reilly gave a slanderous statement to the Honors Committee panel when she told them appellant had told Miller that appellant "turned [in] her R & D late," apparently referring to an earlier written project in Professor Nelson's biology class. Record, No. 12 at 21.
¶ 26 Appellant also contends Reilly gave a slanderous statement to the Honor Committee panel when she said appellant "came and told class that she was still drunk." Record, No. 12 at 8. College students drinking before class or coming to class hung over, as untoward as it may be, is not something that would rise to the level of defamatory in the mind of the average college student. See Walker, supra at 240. Thus, it is difficult to imagine that one student, intimately familiar with the college social landscape, would intend for this statement to cause damage to appellant's reputation.
¶ 27 In the end analysis, appellant's claims of slander are based on alleged statements that are either opinions, factual in nature, and/or non-slanderous in intent. Not a single statement to which she points would afford her recovery even if proven. There is no doubt the trial court correctly dismissed appellant's slander claims. Donahue, supra at 241.
¶ 28 Appellant also alleges the lower court erred when it determined her negligence claim was barred by the "gist of the action doctrine" and that no other duties or obligations existed between the parties. Appellant's brief at 33.
¶ 29 In her amended complaint at count VI, appellant contends Allegheny and Professor Nelson were negligent in conducting the disciplinary process and failing to obtain allegedly exculpatory computer data in their control. Record, No. 12 at 24.
¶ 30 The trial court dismissed appellant's negligence claim by relying on the "gist of the action doctrine," which allows a court to dismiss a negligence claim that is nothing more then a re-characterized contract claim. Appellant asserts our Supreme Court has not yet adopted this doctrine and, therefore, sufficient doubt exists as to the validity of her negligence claim to allow the claim to proceed. We disagree.
¶ 31 While an intensive research effort does indicate that our Supreme Court has not explicitly reviewed the concept under the appellation "gist of the action," dicta from the Court indicates it recognizes that
Glazer v. Chandler, 414 Pa. 304, 200 A.2d 416, 418 (1964). Thereafter, both this Court and various federal courts have operated under the assumption that the gist of the action doctrine is a viable doctrine that will eventually be explicitly adopted by our state's High Court.
¶ 32 The gist of the action doctrine acts to foreclose tort claims: 1) arising solely from the contractual relationship between the parties; 2) when the alleged duties breached were grounded in the contract itself; 3) where any liability stems from the contract; and 4) when the tort claim essentially duplicates the breach of contract claim or where the success of the tort claim is dependent on the success of the breach of contract claim. Hart v. Arnold, 884 A.2d 316, 340 (Pa.Super.2005), citing eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 19 (Pa.Super.2002). The critical conceptual distinction between a breach of contract claim and a tort claim is that the former arises out of "breaches
¶ 33 It is axiomatic that a plaintiff must establish he or she was owed a duty of care by the defendant, the defendant breached this duty, and this breach resulted in injury and actual loss in order to successfully prove negligence. McCandless v. Edwards, 908 A.2d 900, 903 (Pa.Super.2006).
¶ 34 Appellant's charges of negligence are premised on the concept that Allegheny and Professor Nelson owed appellant, "as a member of the college community," duties that are "in addition to and apart from any contractual obligation raised." Record, No. 12 at 23-24.
¶ 35 The problem with this concept is that appellant fails to plead from where this duty arises or what this duty entails. The only duties owed by Allegheny and Professor Nelson we can discern are rooted in
¶ 36 We find that the trial court correctly applied the gist of the action doctrine in dismissing appellant's negligence claim as legally defective. Hart, supra at 341.
¶ 37 Finally, appellant maintains the trial court erred when it determined the actions of appellees, under all of the circumstances, were not sufficient to support an action for intentional infliction of emotional distress (IIED).
¶ 38 For purposes of disposing of this claim we must assume that a tort for the intentional infliction of emotional distress exists in the Commonwealth.
Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 753-754 (1998) (internal citation omitted), quoting in part
¶ 39 Appellant's amended complaint demonstrates that the crux of her IIED claim is based on the premise that appellees "intentionally and wrongly targeted and accused [appellant] of violations of the college's honor code," despite their knowledge of the falsity of these allegations, and that Allegheny and Professor Nelson acted to deprive appellant of her "rights to a fair and impartial hearing." Record, No. 12 at 22-23.
¶ 40 Appellant's allegations, even if accepted as true, do not rise to a level that could be described as "clearly desperate and ultra extreme conduct." Hoy, supra at 754. With respect to Miller and Reilly, appellant contends the statements they allegedly gave to the Honors Committee, analyzed in detail above, comprised the type of conduct that would afford relief. Yet, if these statements were not even slanderous, it is difficult to see how they could be defined as "ultra extreme."
¶ 41 Similarly, Allegheny and Professor Nelson adhered to their contractual duties under
¶ 42 As appellant's amended complaint did not furnish any legally cognizable grounds for recovery, we conclude the trial court properly dismissed appellant's claims. Donahue, supra at 241.
¶ 43 Order affirmed.
Despite these distinctions, we believe that the central premise of Murphy, providing that breach of contract actions brought by a party against a private college or learning institution should be treated as any other contract, should be adhered to. Consequently, appellant's attempts to invoke due process concerns and questions of fundamental fairness are misplaced as our review is not guided by due process concerns. Cf. Boehm v. Univ. of Pennsylvania School of Veterinary Medicine, 392 Pa.Super. 502, 573 A.2d 575, 580 (1990) (discussing the fact that some courts have reviewed private colleges' disciplinary procedures by considering whether they comport with the minimum guarantees of due process); see contra, Murphy, supra at 428 ("Upon careful reflection, we can discern no principled basis for reviewing a breach of contract action that involves private conduct according to principles that arise out of the Fourteenth Amendment, and which govern state action.").
We will, therefore, review appellant's claim that Allegheny breached the promises contained in
There is only one reason appellant's invocation of this provision has any relevance. It shows appellant was on a leave of absence when the September 1, 2004, hearing was held. See also, appellant's brief at 14. Appellant, therefore, is attempting to persuade this Court, albeit by manipulating the facts of record, that Allegheny commenced its disciplinary procedure when appellant was on a leave of absence.
We find it inconceivable that Allegheny would construct such an elaborate conspiracy only to allow appellant to continue her studies without interruption so she could graduate.
Justice Castille, in a Concurring Opinion joined by Justice Nigro, took issue with the broad proposition that our Supreme Court had never recognized a cause of action for emotional distress. Taylor, at 653-654 citing Papieves v. Kelly, 437 Pa. 373, 263 A.2d 118 (1970). Justice Castille found Papieves readily distinguishable however in that it involved the mistreatment of a corpse.
Whatever the Supreme Court eventually decides in this matter, we conclude that when an intentional infliction of emotional distress claim is dismissed upon demurrer, the appropriate legal standard to be applied in reviewing the claim is whether the complaint sufficiently pleads the claim in a manner that corresponds, "at a minimum," with the provisions of the Restatement (Second) of Torts, § 46(1),