through private litigation is a different question." Transamerica Mortgage Advisors, supra, 444 U.S. at 18, 100 S. Ct. at 246. Answering that question requires that we attend, first of all, to "the language of the Act itself." See Coutu, supra, S. Ct., at 1461; see also Transamerica, 444 U.S. at 16, 100 S. Ct. at 245; Touche, Ross, supra, 442 U.S. at 568, 99 S. Ct. at 2485.
In cases "where the language of the statute explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff," Cannon v. University of Chicago, 441 U.S. 677, 690 n.13, 99 S. Ct. 1946, 1954 n.13, 60 L. Ed. 2d 560 (1979), the Court consistently has concluded that Congress intended to create a private cause of action. Conversely, the Court has reasoned that there is "far less reason to infer a private remedy in favor of individual persons" in cases where Congress, "rather than drafting the legislation 'with an unmistakable focus on the benefited class,' instead has framed the statute simply as a general prohibition or command to a federal agency." Coutu, supra, 101 S. Ct. at 1462, quoting Cannon, 441 U.S., at 691, 99 S. Ct., at 1955.
Section 2753(b) of Title 42, which contains the two subsections, (b) (4) and (b) (7), quoted supra at note 7, upon which plaintiff relies, requires that certain provisions be placed in grant agreements between the Secretary of Education and educational institutions. Thus, section 2753(b) is like section 1 of the Davis-Bacon Act which the Court construed in Coutu; it is phrased simply "as a directive to [a] federal agenc[y] engaged in the disbursement of public funds." Coutu, 101 S. Ct. at 1462. The right-creating, or duty-creating, language of section 2753(b) does not focus on the benefited class. Instead, "the duty created by the statutory language" is imposed on the Secretary "to ensure that certain provisions are included" in federal grant agreements. Id. at 1462 n.23. The statutory language, then, "provides no support for the implication of a private remedy." Id. at 1462.
In addition to scrutinizing the particular statutory language at issue in implied right of action cases, the Court has looked to the architecture of the entire statute in assessing whether Congress envisioned private enforcement of its provisions. In so doing, the Court has repeatedly warned that "where a statute expressly provides" enforcement mechanisms, "a court must be chary of reading others into it." Transamerica, 444 U.S., at 19, 100 S. Ct. at 246; see also Middlesex County Sewerage Auth. v. Nat. Sea Clammers, 453 U.S. 1, 13, 101 S. Ct. 2615, 2623, 69 L. Ed. 2d 435 (1981). Title IV of the Higher Education Act contains the statutory provisions which govern the work-study program as well as federal student grant and loan programs. Title IV includes enforcement provisions authorizing the Secretary of Education to prescribe regulations providing for "the limitation, suspension or termination" of an institution's eligibility for work-study program funds if the Secretary determines that the institution "has violated . . . any provision of . . . or any regulation prescribed under . . . part C of Subchapter I of chapter 34 of Title 42 [ 42 U.S.C. §§ 2751-2756(b), the CWSP]." 20 U.S.C. § 1094(b) (1) (D).
In addition, the Secretary is authorized to impose civil penalties for such violations. 20 U.S.C. § 1094(b) (2) (B) (i).
The inclusion of these enforcement provisions in the Higher Education Act strongly supports the view that when Congress added § 2753(b) (4) and (b) (7) to the CWSP provisions of the Act in 1976 -- and framed them as mandates to the then Commissioner of Education in the disbursing of grants -- Congress intended that these provisions would be enforced by the Commissioner through the mechanisms it was also then creating
and not others. This inference finds corroboration in the fact that in 1980 Congress again turned its attention to the enforcement of the provisions governing the CWSP and again failed to provide for any private right of action but chose rather to strengthen the Secretary's enforcement artillery.
To conclude instead that Congress wished to see the enforcement scheme it fashioned supplemented by damage suits brought by students would in effect be to fashion an individual right to private employment assertable against any institution which receives CWSP funds. Nothing in the legislation's scheme or its history remotely suggests that Congress desired such a result.
Accordingly, defendants are entitled to summary judgment on the second of plaintiff's two federal counts.
In addition to his two federal claims, Mr. Murphy also asserts two causes of action grounded in state law.
The first of these alleges that Mr. Murphy is entitled to monetary damages as a third-party beneficiary of the funding agreement between Villanova and the federal Secretary of Education.
Plaintiff's second state law claim alleges a common law conspiracy on the part of defendants Keisler and Femia and other University employees to deprive plaintiff of employment in violation of 42 U.S.C. § 2753(b) (7).
Plaintiff contends that these two state law claims are properly before me under both pendent and federal question jurisdiction, 28 U.S.C. § 1331(a).
Plaintiff's reliance on the doctrine of pendent jurisdiction fails in light of the adverse disposition of his two federal claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966); Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 195-96 (3d Cir. 1976). There remains, then, the necessity of deciding whether either of Mr. Murphy's asserted state causes of action present federal questions.
A. Plaintiff's Third-Party Beneficiary Claim
First to be considered is plaintiff's third-party beneficiary theory. The mere fact "that a contract is subject to federal regulation does not, in itself, demonstrate that Congress meant that all aspects of its performance or nonperformance are to be governed by" federal, rather than state, law. Lindy v. Lynn, 501 F.2d 1367, 1369 (3d Cir. 1974). However, a contract claim may present a federal question if "a distinctive policy of a federal statute requires the application of federal law to determine [the] operation and effect" of a contract's provisions. Id. at 1369.
Plaintiff's third-party beneficiary claim against Villanova falls into that category of state law contract claims which present federal questions, but this conclusion affords plaintiff small comfort. For a plaintiff to recover on a third-party beneficiary claim in Pennsylvania he must show that both parties to the contract intended to create potential liability on the part of the defendant-promisor toward the plaintiff. Spires v. Hanover Fire Ins. Co., 364 Pa. 52, 56-7, 70 A.2d 828 (1950). The contractual provision on which plaintiff seeks to ground Villanova's liability is, as noted above, one which Congress prescribed for inclusion in all CWSP grant agreements and which tracks the language of § 2753(b) (7). In contending for a third-party beneficiary claim against Villanova based on this particular contractual language, plaintiff has merely reclothed in a common law outfit his federal implied cause of action claim relying on § 2753(b) (7). But Part II(B) of this opinion has already determined that Congress, in adding § 2753(b) (7) to the provisions of the CWSP statute, did not intend to confer on the statute's student beneficiaries a private right of action, envisioning instead that § 2753(b) (7)'s mandate to recipient institutions such as Villanova would be enforced by the Secretary. This "distinctive policy of a federal statute requires the application of federal law" in disposing of plaintiff's contract claim. See Lindy v. Lynn, supra, 501 F.2d, at 1369.
The particular question of contract interpretation to be resolved by federal law is this: By agreeing to make employment equivalent to work-study employment "reasonably available . . . to all students . . . who desire employment," did Villanova "intentionally assume" the liability to third-party student beneficiaries for which plaintiff contends? See Spires v. Hanover Fire Ins. Co., supra, 364 Pa. at 56-7, 70 A.2d 828. Since the Secretary exacted this promise from Villanova at Congress's behest, and since Congress did not intend to create a statutory right of action on plaintiff's behalf, it would be anomalous indeed to construe the promise as one which the Secretary -- or, a fortiori, Villanova -- intended or understood as imposing on the University potential contract liability for such claims as Mr. Murphy now brings.
Wherefore, defendant Villanova is entitled to summary judgment on plaintiff's contract claim.
B. Plaintiff's Civil Conspiracy Claim
The final matters for consideration are plaintiff's civil conspiracy claim and the threshold determination whether that claim, grounded in Pennsylvania common law, presents a federal question.
A "properly pleaded 'state-created' claim" presents a federal question if its disposition requires that "an act of Congress must be construed." Warrington Sewer Company v. Tracy, 463 F.2d 771, 772 (3d Cir. 1972) (citations omitted). Mr. Murphy contends that his civil conspiracy count against defendants Keisler and Femia is such a claim. "A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose." Landau v. Western Penna. National Bank, 445 Pa. 217, 224, 282 A.2d 335 (1971). Plaintiff alleges that Ms. Keisler and Mr. Femia conspired to deprive him of employment in violation of 42 U.S.C. § 2753(b) (7).
In order to dispose of this claim, so plaintiff argues, a judicial construction of § 2753(b) (7) is required, because unless defendants' refusal to pay plaintiff out of University funds violated that subsection of the CWSP statute, there was no combination "to do an unlawful . . . act."
Contrary to plaintiff's view of the matter, it is unnecessary to construe § 2753(b) (7), for the reason that, far from being a "properly pleaded 'state-created' claim,"
Mr. Murphy's civil conspiracy charge is one that is fatally flawed on purely state law grounds. Under Pennsylvania law "malice, i.e., an intent to injure" is an essential element of a civil conspiracy claim. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 472 (1979) (citing cases). Plaintiff's own factual averments establish that this essential element is irremediably absent from his count for civil conspiracy.
In light of this state law infirmity in plaintiff's "state-created" civil conspiracy claim, it is apparent that the claim is not one which presents "a pivotal question of federal law." Warrington, supra, at 772. It is, therefore, not a claim over which this court has jurisdiction. Id.
For the foregoing reasons, an order was filed on April 1, 1982 disposing of this matter in favor of defendants.