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Meyer v. Community College of Beaver County


February 11, 2009


The opinion of the court was delivered by: Judge Robert Simpson

Argued: October 15, 2008



In this interlocutory appeal by permission, we consider the extent to which a community college, a local agency, may be liable under the Unfair Trade Practices and Consumer Protection Law (CPL)*fn1 for statutory damages, including possible treble damages.

In particular, the Community College of Beaver County (the College) appeals an order of the Court of Common Pleas of Beaver County (trial court) denying its motion for partial summary judgment. A group of former students (Plaintiffs)*fn2 enrolled in the College's police technology program (the Academy) during the 2001-02 academic year, brought a civil action against the College after the Academy lost its school certification under the Municipal Police Officers Education and Training Act (Training Act), 53 Pa. C.S. §§2161-70, informally known as "Act 120." In their amended complaint Plaintiffs allege breach of contract and breach of warranty, and various unfair or deceptive acts as defined in the CPL.


In May 2002, before Plaintiffs completed the Academy's course of study, the Pennsylvania Municipal Police Officers' Education and Training Commission (Training Commission) suspended the Academy's Act 120 certification. The Training Commission based the suspension on numerous violations, including the Academy's failure to accurately document student examination scores and the failure of Academy instructors to be properly certified to teach various classes. The Training Commission officially revoked the Academy's Act 120 certification in August 2002.

Thereafter, Plaintiffs filed a complaint against the College that alleged as follows. In its 2000-01*fn3 course catalog, the College expressly represented the Academy to be a Training Commission certified course of study. These express representations were made to induce, and did induce, Plaintiffs to enroll in the Academy. Plaintiffs paid tuition, attended the required courses and took examinations.

However, due to numerous violations of the Training Act and its regulations,*fn4 the Training Commission ultimately revoked the Academy's certification. As a result, the Training Commission disallowed most of the credits Plaintiffs earned at the Academy. Consequently, Plaintiffs must repeat virtually all of the Act 120 course requirements at another police academy and pay tuition.

In odd-numbered counts of their amended complaint titled "Breach of Contract and Warranty," each Plaintiff alleged the College breached contractual warranties.*fn5 Alleged damages included loss of tuition; loss of income; and loss of job opportunities and the income associated therewith.

In even-numbered counts of their amended complaint titled "Consumer Protection Law," each Plaintiff alleged the purchase of education services constituted a transaction in "trade" or "commerce" as defined in Section 2(3) of the CPL and the College is a "person" as defined in Section 2(2) of the CPL. Plaintiffs further alleged the College engaged in unfair or deceptive conduct as defined in Sections 2(4)(ii), (iii), (v), (vii), (xiv) and (xxi) of the CPL*fn6 in violation of Section 3 of the CPL, 73 P.S. §201-3 (unfair methods of competition and unfair or deceptive acts or practices as defined in Section 2(4) of the CPL declared unlawful).*fn7 Plaintiffs alleged substantial economic losses as a result of the College's violations of the CPL. They also sought treble damages and an award of costs and attorney fees under Section 9.2 of the CPL.*fn8

After the close of pleadings*fn9 and discovery, the College filed a motion for partial summary judgment requesting judgment on Plaintiffs' CPL and breach of warranty claims. As to the breach of warranty claims, the College argued that Plaintiffs failed to offer sufficient proof to support their claims. Relevant to this appeal, the College argued the CPL does not apply to community colleges and, as a local agency, a community college is immune from CPL claims under 42 Pa. C.S. §8541.

Ultimately, the trial court denied the College's motion for partial summary judgment. The trial court rejected the College's assertion the CPL does not apply to community colleges. It further rejected the College's immunity defense on the basis that some of Plaintiffs' CPL claims sound in contract, not in tort.

The trial court also cited several cases in support of its decision. See Cavaliere v. Duff's Business Institute, 605 A.2d 397 (Pa. Super. 1992) (breach of contract action may lie in case where school falsely asserts it is accredited or licensed to give a certain degree); Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999) (relationship between private college and student is contractual in nature; student may bring cause of action for breach of contract where college ignores or violates written contract); Beljan v. Bucks County Cmty. Coll., 11 Pa. D.&C.3d 786 (C.P. Bucks 1979) (plaintiff, a nursing student, failed to set forth a cause of action against a community college for breach of contract based on the school's alleged failure to implement rules and regulations promulgated by the State Board of Nursing Examiners).*fn10 The trial court explained:

The common denominator of all these cases is the allegation that the Defendant-school committed a breach of any of the terms and conditions of the catalog of the Defendant.

[The College] alleges in its motion of summary judgment that:

1. There was no college catalog for the school year of 2001-2002 upon which the Plaintiffs could rely upon;

2. The 2001-2002 catalog contains no guarantees or warranties;

3. [Plaintiffs] did not rely upon any representation contained in the college catalog.

Trial Ct. Slip Op., 05/12/08 at 4-5.

In denying the College's motion for partial summary judgment, the trial court reasoned (with emphasis added):

The party opposing a motion for summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.

Our courts have been reluctant to recognize claims of educational malpractice in the academic environment but they have recognized that a contract exists between a student and a college. The courts have held that in general, the basic legal relationship between a student and a private university or college is contractual in nature. The catalogs, bulletins, circulars, and regulations of the institution made available to the matriculant become part of the contract. Questions of discipline, academic matters, and tuition and scholarship disputes have been addressed by courts and resolved on contract principles. At the same time, however, courts have been reluctant to apply strict contract concepts to the unique relationship that exists between students and universities or colleges.

Id. at 5.

In response to the denial of its motion, the College filed a motion to amend the order to certify for an interlocutory appeal of the following two issues:

whether the College is a "person" as defined in Section 2(2) of the CPL inasmuch as a community college, a distinct public entity, is not specifically identified as a person in the CPL; and whether the College is subject to prosecution under the CPL regardless of tort immunity defenses afforded a local agency under 42 Pa. C.S. §8541. The trial court granted the College's motion. This Court granted the appeal.*fn11



The College first asserts it is not included in the CPL's definition of a "person" and thus not subject to liability under the CPL. Section 2(2) of the CPL defines a "person" as follows (with emphasis added):

"Person" means natural persons, corporations, trusts, partnerships, incorporated or unincorporated associations, and any other legal entities."

The parties' interesting arguments notwithstanding, we decline to decide whether the College is "any other legal entity" so as to come under the definition of "Person" subject to private action provisions of the CPL. This is because we conclude the College is immune from liability for statutory damages under the CPL, as discussed more fully below.


The College asserts the trial court erred in concluding that claims under the CPL may sound either in tort or in contract and that the College is subject to liability under the contract branch of the CPL regardless of tort immunity afforded a local agency under 42 Pa. C.S. §8541. As support, the College cites Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425 (2004), where the Supreme Court acknowledged in a footnote that the plaintiff in that case conceded the Pittsburgh Sports and Exhibition Authority, as a governmental agency, was immune from CPL claims of negligent misrepresentation.

The College also cites Matarazzo v. Millers Mutual Group, Inc., 927 A.2d 689 (Pa. Cmwlth. 2007), where homeowners sued a municipal authority which did not shut off the water to their vacant house, causing the pipes to freeze and burst. The homeowners asserted promissory estoppel, a cause of action to which governmental immunity does not apply. However, we determined the homeowners' action to be a negligence action asserting a breach of a duty of care to provide service in a competent and careful manner. We further determined the homeowners' action did not fall within any of the eight exceptions to governmental immunity in 42 Pa. C.S. §8542(b). Exceptions to immunity are strictly construed. Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342 (1995). In Matarazzo, we noted Pennsylvania courts consistently hold a plaintiff may not avoid the defense of governmental immunity by couching a claim for the recovery of tort damages under a contract theory. See also Bendas v. Upper Saucon Twp., 561 A.2d 1290 (Pa. Cmwlth. 1989) (same).

Here, the College asserts, Plaintiffs merely converted their tort claims to breach of contract claims. The College also cites our decision in Yocca, 806 A.2d 936 (Pa. Cmwlth. 2002) rev'd on other grounds, 578 Pa. 479, 854 A.2d 425 (2004), wherein we recognized this Court employs a "misfeasance/nonfeasance" test for determining whether an action sounds in tort or in contract. "If there is 'misfeasance,' there is an improper performance of the contract in the course of which breaches a duty imposed by law as a matter of social policy. In such instances, the 'gist' of the plaintiff's action sounds in tort and the contract itself is collateral to the cause of action." Id. at 944. "On the other hand, if there is 'nonfeasance,' the wrong attributed to the defendant is solely a breach of the defendant's duty to perform under the terms of the contract. In such instances, the 'gist' of the plaintiff's action sounds in contract, and the plaintiff would not have a cause of action but for the contract." Id.

The College additionally cites Johnson v. Hyundai Motor America, 698 A.2d 631 (Pa. Super. 1997), for the proposition that the CPL does not distinguish between "tort-like" and "contract-like" violations. The College asserts that as a consequence, Plaintiffs' CPL claims cannot be considered breach of contract and breach of warranty for purposes of governmental immunity.

Plaintiffs counter the College is not immune from CPL claims under 42 Pa. C.S. §8541. In support, Plaintiffs cite, among other decisions, Gabriel v. O'Hara, 534 A.2d 488 (Pa. Super. 1987). There, the Superior Court recognized the CPL is of a "sui generis nature" and "encompasses an array of practices which might be analogized to passing off, misappropriation, trademark infringement, disparagement, false advertising, fraud, breach of contract, and breach of warranty." Id. at 494 (footnotes omitted). In Gabriel the Court further noted "the [CPL] embraces actionable conduct which sounds in assumpsit as well as trespass and which parallel actions upon contracts as well as those arising in tort." Id. at 495. Plaintiffs argue if the College's position were correct, all CPL claims would be tort claims subject to the two-year statute of limitations for torts. However, in Gabriel, the Superior Court applied the six-year catch-all limitation period in Section 5527 of the Judicial Code, 42 Pa. C.S. §5527.

Plaintiffs also contend the College's reliance on the Supreme Court's decision in Yocca is misplaced because the plaintiffs therein withdrew their CPL claims when the defendant asserted immunity.

Plaintiffs further argue treble damages under the CPL are available for breach of contract claims because obligations under the CPL are governed by statutory, not common law. They assert a breach of warranty under CPL §2(4)(xiv) may constitute an unfair trade practice and support an award of treble damages. However, an award of treble damages does not change a contract claim into a tort claim. Finally, Plaintiffs assert the "gist of the action" doctrine and the "misfeasance/nonfeasance" tests discussed in this Court's Yocca decision do not render their CPL claims a tort action.

Initially, we note a community college, as a tax supported institution created by local government units, is a local agency for purposes of governmental immunity. Cmty. Coll. Of Allegheny County v. Seibert, 601 A.2d 1348 (Pa. Cmwlth. 1992), aff'd, 533 Pa. 314, 622 A.2d 285 (1993). Local agencies are generally not liable for damages on account of an injury to a person or property. 42 Pa. C.S. §8541.

Nevertheless, local agencies may be held liable for damages to an injured party where the "damages would be recoverable under . a statute creating a cause of action if the injury were caused by a person not having available a defense under [Section 8541] . and . the injury was caused by the negligent acts of the local agency or an employe thereof acting within the scope of his office or duties with respect to one of the categories listed in [42 Pa. C.S, §8542(b), relating to exceptions to immunity] .." 42 Pa. C.S. §8542(a) (emphasis added).

Stated differently, a local agency may be liable for damages under a statute creating a cause of action if liability is predicated on a negligent act within one of the eight categories of exceptions to immunity. Consequently, to be recoverable, Plaintiffs' CPL private action claims against a local agency must arise from a negligent act within one of the eight exceptions to governmental immunity in 42 Pa. C.S. §8542(b) (negligent acts involving: (1) vehicle liability; (2) care, custody or control of personal property of others; (3) real property, trees; (4) traffic controls and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks; or (8) care, custody and control of animals).

Here, liability under the CPL is clearly not predicated on a negligent act within one of the eight categories of exceptions to immunity.*fn12 No one asserts otherwise. Consequently, the College, as a local agency, is not liable for statutory damages on account of any injury to a Plaintiff's person or property interests; rather, it retains immunity. 42 Pa. C.S. §8541. Where, as here, statutory damages are involved, it does not matter whether the statutory claims are parallel to contract claims or similar to tort claims. Rather, immunity from statutory damages is only waived for negligent acts within the exceptions enumerated in 42 Pa. C.S. §8542(b).

Similarly, the College is not liable for treble damages sought by each Plaintiff pursuant to Section 9.2(a) of the CPL.*fn13 Treble damages under the CPL are akin to punitive or exemplary damages. Schwartz v. Rockey, 593 Pa. 536, 932 A2d 885 (2007) (the trebling of damages under the CPL has strong punitive dynamic); id. at 561-62, 932 A.2d at 901 (Cappy, C.J., concurring and dissenting) (treble damages under the CPL are essentially punitive in nature); Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Super. 2002) (CPL gives trial court discretion to award treble damages, which are punitive in nature); Johnson (imposition of exemplary or treble damages is essentially punitive in nature). An award of treble damages under the CPL should be supported by the presence of intentional or reckless, wrongful conduct, and should be in furtherance of the remedial purposes of the statute. Schwartz.

However, it is clear that immunity is not waived for claims against a local agency for intentional or reckless conduct, only for certain negligent conduct.

42 Pa. C.S. §8542(a)(2). Thus, the College retains immunity for the types of conduct needed to support an award of treble damages under the CPL. This conclusion is consistent with decisions holding that punitive damages cannot be awarded against a local agency. Westmoreland County Indus. Dev. Auth. v. Allegheny County Bd. of Prop. Assessment, Appeals and Review, 723 A.2d 1084 (Pa. Cmwlth. 1999); see also Feingold v. Se. Pa. Transp. Auth., 512 Pa. 567, 517 A.2d 1270 (1986) (punitive damages not recoverable against a Commonwealth agency).

We specifically decline the invitation of the Plaintiffs and the trial court to analogize CPL claims to common law torts or common law contract claims and treat them as such, for several reasons. First and foremost, the plain language of the CPL does not differentiate between "tort-like" violations and "contract-like" violations. Johnson. Second, based on concerns for inconsistent results, our courts refrain from analyzing each prohibited act under the CPL separately; rather, our courts recognize the unique nature of liability under the CPL and strive to treat all prohibited acts uniformly. Id.; Gabriel (in order to eliminate aimless searching for time limits within which to bring actions under CPL, six-year statute of limitations applied to private actions based on all prohibited acts, whether similar to common law tort or similar to common law contract claim).

Third, while true that the acts upon which a common law breach of warranty claim is based may also support a private action claim under the CPL, the consequences are vastly different. These different consequences include possible liability for treble damages and attorney fees. These different consequences also support a different outcome between common law and statutory claims. Fourth, as discussed above, the waiver of immunity for statutory damages contains no direction to attempt a common law analogy; instead, the immunity waiver focuses on whether the injury was caused by negligent acts within the enumerated exceptions. 42 Pa. C.S. §8542(a)(2).

In so holding, we stress that our decision is restricted to the counts of Plaintiffs' First Amended Complaint setting forth their statutory claims under the CPL. Plaintiffs' common law breach of warranty claims are not challenged in this interlocutory appeal. We note, however, that punitive damages are not usually recoverable in a breach of contract action. Thorsen v. Iron and Glass Bank, 476 A.2d 928 (Pa. Super. 1984). We also refrain from deciding the status of other remedies provided by the CPL because such inquiries are not necessary for the disposition of this appeal.

The record supports no criticism of the respected trial court in this case, given its careful decision making at early stages of litigation. Nevertheless, based on our review, we hold Plaintiffs' remaining CPL private action claims are barred by governmental immunity under 42 Pa. C.S. §8541. As a result, the College is entitled to partial summary judgment on Plaintiffs' CPL claims as a matter of law.

ROBERT SIMPSON, Judge Judge Butler dissents.


AND NOW, this 11th day of February, 2009, for the reasons stated in the foregoing opinion, the order of the Court of Common Pleas of Beaver County in the above-captioned matter is REVERSED insofar as it relates to private action claims under the Unfair Trade Practices and Consumer Protection Law, and PARTIAL SUMMARY JUDGMENT is entered in favor of the Community College of Beaver County and against Appellees on private action claims under the Unfair Trade Practices and Consumer Protection Law.

Jurisdiction is relinquished.

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