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Kimberg v. University of Scranton

February 2, 2007

TERENCE KIMBERG, PLAINTIFF
v.
UNIVERSITY OF SCRANTON, WYOMING VALLEY HEALTH CARE SYSTEM, INC. AND CAROLINE RASKIEWICZ, INDIVIDUALLY AND AS PROGRAM DIRECTOR FOR THE UNIVERSITY OF SCRANTON, DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court for disposition are motions to dismiss filed by the defendants. The motions have been fully briefed, and oral argument has been held. The motions are thus ripe for disposition.

Background

Defendant University of Scranton ("University") is a private university located in Scranton, Pennsylvania. (Compl. ¶ 2). Together with Defendant Wyoming Valley Health Care System, Inc. (hereinafter "Wyoming"), the University provided a Nurse Anesthesia program. The program is known as the Wyoming Valley Health Care System/University of Scranton School of Nurse Anesthesia. (Compl. ¶ 3). Defendant Caroline Raskiewicz is the program director for the School of Nurse Anesthesia.

Plaintiff entered the School of Nurse Anesthesia as a graduate student in August 2004. The program requires completion of sixty (60) course credits and the successful students attain a master's degree. (Compl. ¶ 9). Upon his matriculation, plaintiff was provided a "Student Handbook - Class of August 2006," a Graduate Student Catalog, a Graduate Student Handbook and Clinical Sites Handbook. (Id.).

Plaintiff was required to pay $2,500.00 per year in clinical fees and a one time fee of $2,800.00 to Wyoming. (Compl. ¶ 10). Plaintiff asserts that paying the required tuition, his acceptance into the program and his matriculation created an implied-in-fact contract. The contract required the University and Wyoming to comply with the various student handbooks. (Id.).

A clinical program is included in the School of Nurse Anesthesia. (Compl. ¶ 12). Plaintiff participated in over two hundred (200) clinical cases between September 2, 2004 and June 2005. (Compl. ¶ 20). He received positive evaluations in each case. (Id.). Plaintiff had fifty-three (53) clinical evaluations between June 2005 and September 20, 2005. All evaluations were positive. (Id.).

Clinical evaluations can be marked "met objectives" "failed to meet objectives" or "other." Up to September 20, 2005, plaintiff had received only "met his objectives" evaluations. On September 20, 2005, he received an evaluation marked "other." (Compl. ¶ 21). Between September 20, 2005 and December 12, 2005, plaintiff obtained positive evaluations on all thirty-three clinical evaluations he received. (Compl. ¶ 22). On December 21, 2005, he received a second evaluation marked "other." (Id.).

After each semester of clinical, the student undergoes a Triannual evaluation. (Compl. ¶ 14). All of plaintiff's Triannual evaluations between August 2004 and December 2005 were positive. (Compl. ¶ 23).

Plaintiff was instructed to go to a meeting in Defendant Raskiewicz's office on December 5, 2005 without any prior notice or warning. (Compl. ¶ 24). In attendance at the meeting were plaintiff, Raskiewicz, Ann Culp, the Clinical Director/Education, and M. Jennings, an Administrative Research Assistant. Raskiewicz confronted plaintiff about difficulties he was having.

Plaintiff stated the he was having no difficulties. Defendant Raskiewicz asserted that plaintiff was "refusing to communicate" with regard to a demonstration that was to be performed on a mannequin. Plaintiff refuted the allegations. Defendant Raskiewicz then accused plaintiff of being unprepared for a part of the program called the "Journal Club." (Id.)

Plaintiff was "written up" after the meeting, and plaintiff claims that this "write up" was in contravention of the various student handbooks. Over thirty (30) days later, on January 31, 2006, plaintiff received a letter that notified him that he was placed on "probation." In between the time of the meeting and being placed on probation, plaintiff had received twelve (12) positive clinical evaluations. (Compl. ¶ 27). The defendants did not reveal in the letter the "basis of the information or the individuals who allegedly complained about" the plaintiff. (Id.).

The letter indicated that plaintiff violated "Policy 60.6" by "failing to communicate." Plaintiff asserts that failure to communicate is not defined in the Handbooks as being a violation of the defendants' policies and procedures. (Compl. ¶ 27). The letter cites another section of Policy 60.6, but that section does not correspond with any of the alleged violations. (Compl. ¶ 28). Thus, plaintiff asserts that he was arbitrarily and capriciously written up and placed on probation. (Id.).

On March 24, 2006, the defendants provided plaintiff with the option of withdrawing from the program or being dismissed. Finally, on that same day, the defendants terminated plaintiff from the program for failing to progress during an alleged probationary period. Plaintiff asserts that his termination violated Policy No. 60.6, the rules and regulations for students in the program, the clinical grading policy, and daily verbal and written evaluations and procedures.

Plaintiff further asserts that the handbooks provide that a student can only be placed on probation for specific reasons. "Failure to communicate" is not a reason. Moreover, if a student is placed on probation and then within the next thirty (30) days receives all positive clinical evaluations, he is automatically removed from probation. Plaintiff asserts that he received all positive clinical evaluations after being placed on probation and yet he was not removed from probation. (Compl. ¶ 38).

Plaintiff also avers that the defendants breached their contract with plaintiff by ignoring the progressive disciplinary steps set forth in Policy 60.6 and by creating policies and procedures that did not exist, and then alleging that plaintiff violated these newly created policies and procedures to justify his termination. (Compl. ¶ 39).

On March 27, 2006, plaintiff appealed his termination from the program. (Compl. ¶ 44). On May 9, 2005, Defendant Raskiewicz informed plaintiff, via a letter, that the appeal would be conducted pursuant to the Student Grievance and Due Process Policy and Procedure. The letter indicated that the defendants would agree to a hearing only if plaintiff agreed to appear without an attorney. (Compl. ¶ 47). Plaintiff asserts that the failure to allow him counsel violated his right to reasonable rules and fair treatment. (Compl. ¶ 50). Evidently, plaintiff did not pursue the hearing after he was told that he could not be accompanied by counsel.

Plaintiff then filed the instant four-count complaint raising the following causes of action: 1) breach of contract; 2) breach of the covenant of good faith and fair dealing; 3) denial of due process; and 4) tortious interference with contract. Plaintiff also makes claims for punitive damages. The ...


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