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Wasseff v. National Institute of Health

United States District Court, E.D. Pennsylvania

February 6, 2017

SAMEH WASSEFF, Plaintiff,
v.
THE NATIONAL INSTITUTE OF HEALTH, et al., Defendants.

          OPINION

          Slomsky, J.

         I. INTRODUCTION

         Plaintiff Sameh Wasseff, proceeding pro se, brings this suit against Defendants the National Institute of Health, the Department of Health and Human Services, the University of Pennsylvania School of Medicine, and the Trustee of the University of Pennsylvania for alleged wrongdoing committed against him during his employment at the University of Pennsylvania.[1]

         In Count I of the Third Amended Complaint (“TAC”), Plaintiff alleges a breach of contract claim against Penn Defendants. In Count II, Plaintiff alleges a promissory estoppel claim against Penn Defendants. In Count III, Plaintiff asserts that Penn Defendants discriminated against him based on his race and national origin, in violation of 42 U.S.C. § 1981. In Count IV, Plaintiff contends that Penn Defendants discriminated and retaliated against him based on his race and national origin in violation of Title VI of the Civil Rights Act of 1964 (“Title VI”).[2] In Count V, Plaintiff alleges a breach of fiduciary duty claim against Penn Defendants. In Count VI, Plaintiff brings a negligent supervision claim against Penn Defendants. Finally, in Count VII, Plaintiff alleges a claim under the Administrative Procedures Act against Federal Defendants. (Doc. No. 38.) Defendants have filed two Motions to Dismiss the TAC in its entirety. (Doc. Nos. 39, 40.) The Motions are ripe for disposition.[3]

         II. BACKGROUND [4]

         In October 2006, the University of Pennsylvania (“Penn”) hired Plaintiff Sameh Wasseff, a man of Egyptian citizenship, as a Postdoctoral Researcher. (Doc. No. 38, Ex. A.) Plaintiff was a trained and licensed medical doctor in Egypt before accepting the position at Penn and moving to Philadelphia, Pennsylvania. (Doc. No. 38 at ¶¶ 1-3, 6.)

         From October 2006 to November 2015, Plaintiff worked at Penn. For the first five years of his employment, from October 2006 to October 2011, Plaintiff was employed as a Postdoctoral Researcher. (Id. at ¶ 6.) In this role, he assisted the University in conducting experiments to fulfill research grants it obtained.[5] (Id. at ¶¶ 6, 11, 122.) Plaintiff was originally hired to conduct research for Penn's Department of Neurology. (Id. at ¶ 9.) Plaintiff's faculty supervisor, Steven Scherer, requested that Plaintiff perform “patch-clamp” experiments on mice to determine “how astrocytes and oligodendrocytes are coupled by gap junctions.” (Doc. No. 38, Ex. A.) Plaintiff's experiments required “many steps” and “long working hours” to complete. (Id. at ¶¶ 13-14.) Plaintiff's employment as a Postdoctoral Researcher was originally for a one-year term, and was eligible for renewal on an annual basis, for a maximum of five years. (Doc. No. 38, Ex. A.) Upon reaching the five-year point in October of 2011, Penn hired Plaintiff as a Research Associate. (Id. at ¶¶ 93-94.) This new position allowed Plaintiff to work on more aspects of the grant projects. (Id. at ¶ 97.) Plaintiff held the position as a Research Associate for four years, from November 1, 2011 through November 30, 2015. (Id. at ¶ 122.) Like his previous job as a Postdoctoral Researcher, his employment as a Research Associate was subject to renewal on an annual basis.

         Plaintiff believed that accepting these jobs would eventually help him transition to a position as a resident or assistant professor with the University. (Id. at ¶ 21.) Plaintiff also thought that the offer letters he received, coupled with the University's policies, guaranteed him future benefits after completing his work as a Postdoctoral Researcher or Research Associate, such as securing future employment in different roles. (Id. at ¶¶ 39-40, 133-41.)

         Through a series of unfortunate events, however, Plaintiff never obtained a position as a resident or assistant professor with the University. Shortly after Plaintiff was hired, he began having problems at work. Plaintiff alleges that, during his tenure at Penn, he was subjected to negative treatment. (Id. at ¶¶ 48-49, 64-65, 105-15.) He believes his co-workers were routinely stalking him in the laboratory and were attempting to undermine his experiments. (Id. at ¶¶ 103-04.) For example, Plaintiff states that the “housekeeper . . . started to stalk me with menacing and threatening looks, flexing his muscles every time his sees me.”[6] (Id. at ¶ 76.) Plaintiff claims that “three workers in the lab . . . will repeatedly interrupt [Plaintiff's] work, and blocked [Plaintiff's] use of laboratory equipment or access to chemicals.” (Id. at ¶ 102.) Plaintiff alleges that the University staff “spent a huge effort [on] repeated occasions to block the purchase and delivery of . . . needed equipment, in order to delay the work.” (Id. at ¶ 100.) Plaintiff believes that his co-workers were essentially trying to sabotage his experiments, hinder his projects, and “ruin [his] career.” (Id. at ¶¶ 100, 103-04.)

         In addition, Plaintiff witnessed co-workers engaging in what Plaintiff refers to as unsafe experiments in the laboratory. (Id. at ¶¶ 37-47.) Plaintiff claims that co-worker Sarah Wong “conducted unsafe mutated viral injections in the main lab” and that as a result he was exposed to neurotoxic material. (Id. at ¶¶ 37, 39.) Plaintiff believes that staff intentionally left out harmful bacteria and chemicals near his work station “to annoy” him. (Id. at ¶ 39.) “Bio safety hoods were broken” and improperly used for storage. (Id. at ¶ 40.) “Yearly internal inspection reports . . . cited the lab for violations of safety rules.” (Id. at ¶ 41.) Plaintiff claims to have documented these unsafe practices in emails to Penn, but asserts that his concerns were ignored by his supervisors. (Id. at ¶ 46.) Nothing was done to correct these safety issues. (Id. at ¶ 41.)

         Plaintiff also complained that Penn staff abused lab mice and wasted grant money. (Id. at ¶ 82.) He states that, “Staff and students negligently abandoned laboratory mice, and wasted thousands of dollars (approximately $30, 000) . . . with $9, 000 wasted in one month alone [sic].”[7](Id.)

         Plaintiff's concerns over his work conditions culminated in 2009 during an incident with co-worker Wong, which ended in Wong calling the police. Plaintiff and Wong got into an argument. (Id. at ¶¶ 47-57.) Just prior to their argument, Plaintiff alleges that Wong intentionally broke laboratory equipment to undermine his work. (Id. at ¶ 47.) Wong made a derogatory remark about “people like you, ” which Plaintiff believed referred to his Egyptian citizenship. (Id. at ¶ 48.) Plaintiff remained in his personal laboratory room during this incident; however, Wong called the police to resolve the dispute. (Id. at ¶ 49.) Plaintiff claims that Wong “called the police falsely on [him] with the aim to betray [sic] me as dangerous[, ] deranged and violent middle eastern [sic].” (Id.) Plaintiff requested that Penn staff provide him with the police reports, but they refused. (Id. at ¶ 55.) Penn did not take any disciplinary action against Wong. (Id. at ¶¶ 54, 57.) Following the police incident, Plaintiff's ability to work in the laboratory among his co-workers further deteriorated. (Id. at ¶ 56.)

         Plaintiff alleges that American Postdoctoral Researchers were not subject to the same negative treatment that foreign Postdoctoral Researchers encountered. (Id. at ¶ 67.) Specifically, he claims that American Researchers were not “subjected to . . . harassment, ” were not stalked to find faults in their experiments, and were not forced to do “housekeeping duties.” (Id.) During separate and unrelated conversations, co-workers made derogatory remarks about Plaintiff's citizenship. For example, one co-worker told Plaintiff that “people are not educated because they are from middle east [sic]” and that “people like [Plaintiff] end up doing something else, or leaving to their own country.” (Id. at ¶¶ 105, 110.) Although Plaintiff felt that he was entitled to a position as a resident or assistant professor after working at Penn, he was informed that he would not be awarded either job. (Id. at ¶ 108.) He alleges his supervisors informed him that the outcome “would have been different if [Plaintiff] was born and raised here.” (Id.)

         Plaintiff believes that Penn has a practice of “exploiting foreign scholars to do complex work on low stipends compensation [sic] without providing them with benefits, or career development plans similar to American graduates.” (Id. at ¶ 112.) He was informed that another foreign Postdoctoral Researcher was also treated poorly at work. (Id. at ¶¶ 52-53.) Plaintiff states that he “was told by co-workers that they bullied a foreign post-doctoral scholar; he ended up cutting himself and with severe emotional distress and a stroke [sic].” (Id. at ¶ 53.) This other alleged instance of harassment convinced Plaintiff that he and other foreign employees were being subjected to negative treatment at the hands of his American supervisors.

         Plaintiff further alleges that he informed both Scherer and other supervisors of the various incidents and inappropriate acts of his co-workers. (Id. at ¶ 66.) Instead of addressing his concerns, Plaintiff alleges that Scherer did nothing to stop the negative treatment, making it impossible for him to complete his work. (Id. at ¶¶ 63, 71.) In fact, Plaintiff claims that Scherer participated in sabotaging Plaintiff's career. He alleges that Scherer intentionally delayed publication of Plaintiff's work to allow “a group of [Scherer's] collaborates in Germany to do similar experiments to those [Plaintiff] is doing and publish the results prior to [him].” (Id. at ¶ 82.) Scherer then informed Plaintiff that because his results were not timely, Plaintiff needed to re-write the grant application to secure the grant's renewal. (Id. at ¶¶ 83-84.) Plaintiff initially refused, and told Scherer that he wanted to leave. (Id. at ¶¶ 83-84, 90.) However, Plaintiff later completed a new application and the grant was renewed. (Id. at ¶ 89.) Scherer acknowledged Plaintiff's contribution to the grant renewal project and thanked him for his work. (Id. at ¶¶ 90-91.) Plaintiff then complained that Scherer persuaded him to stay at Penn by assuring Plaintiff that he would receive “training” and “internships” which would further his career development. (Id. at ¶ 92.) Plaintiff believed this additional training would help him obtain a position as a resident or assistant professor, however, this never happened. He was ultimately dismissed on November 30, 2015. (Id. at ¶ 122.)

         On February 11, 2016, Plaintiff initiated this action pro se against the Penn and Federal Defendants in this Court. (Doc. No. 1.) He filed an Amended Complaint on April 20, 2016. (Doc. No. 12.) On May 4, 2016, Defendants filed a Motion to Dismiss the Amended Complaint. (Doc. Nos. 16, 17.) In response, Plaintiff sought leave to amend the Complaint for a second time by sending in a letter to the Court with his Second Amended Complaint (“SAC”) attached. (Doc. No. 22.)

         On June 15, 2016, the Court granted Plaintiff's request and docketed the attached Second Amended Complaint. (Doc. No. 23.) On June 27, 2016, Defendants filed two Motions to Dismiss the Second Amended Complaint. (Doc. Nos. 26-27.) A hearing on the Motions was held on October 6, 2016. (Doc. No. 34.) At the hearing, Plaintiff was afforded another opportunity to amend the Complaint. (Id.) On November 21, 2016, Plaintiff filed the Third Amended Complaint (“TAC”). (Doc. No. 38.) After this filing, the Court denied Defendants' pending Motions to Dismiss the SAC without prejudice as moot. (Doc. No. 37.) On December 5, 2016, Defendants filed two Motions to Dismiss the TAC. (Doc. Nos. 39-40.) Plaintiff filed a Response in Opposition on January 6, 2017. (Doc. Nos. 43, 44.)

         III. STANDARD OF REVIEW

         The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal it is clear that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice” to defeat a Rule 12(b)(6) motion to dismiss. Id. at 663; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 232 n.14 (3d Cir. 2013) (citing Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss:

First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”

Id. at 130 (quoting Iqbal, 556 U.S. at 675, 679). “This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

         When determining a motion to dismiss, the court must “accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Where, as here, the complaint is filed pro se, the “complaint, ‘however inartfully pleaded' must be held to ‘less stringent standards than formal pleadings drafted by lawyers.'” Fatone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). It should be dismissed only if it appears “beyond doubt that the plaintiff can prove no set of facts in support of [his] claim that would entitle [him] to relief.” Olaniyi v. Alexa Cab Co., 239 F. App'x 698, 699 (3d Cir. 2007) (citing McDowell v. Del. State Police, 88 F.3d 188, 189 (3d Cir. 1996)).

         IV. ANALYSIS

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants seek to dismiss the TAC in its entirety. (Doc. Nos. 39, 40.) Each of Defendants' arguments in opposition to Plaintiff's claims will be addressed in turn.

         A. Plaintiff Has Not Plausibly Alleged a Claim of Breach of Contract

         In Count I of the TAC, Plaintiff alleges a breach of contract claim against Penn Defendants. (Doc. No. 38 at ¶¶ 133-41.) Penn Defendants argue that the breach of contract claim should be dismissed because it is barred by the statute of limitations and it fails to state a claim upon which relief can be granted. (Doc. No. 39 at 7-10.) Regarding the latter reason, Penn Defendants assert that Plaintiff has failed to plead plausible facts satisfying the elements of a breach of contract claim. (Id. at 7.)

         1. Plaintiff's Breach of Contract Claim is Not Barred by the Statute of Limitations

         Penn Defendants argue that Plaintiff's contract claim is barred by the statute of limitations. (Id.) Under Pennsylvania law, a breach of contract action must be commenced within four years of the alleged breach of the purported contract.[8] 42 Pa. Const. Stat. Ann. § 5525. Plaintiff commenced this action by filing a Complaint on February 11, 2016. (Doc. No. 1.) Plaintiff's breach of contract claim therefore must be based on an alleged violation of the contract which occurred on or after February 11, 2012. If the alleged violation occurred before February 11, 2012, then the claim is barred by the statute of limitations.

         Plaintiff's contract claim is not barred by the statute of limitations. First, it is important to identify which contract is controlling in this matter. Because Plaintiff was employed as a Research Associate from 2011 to 2015, the employment contracts governing this position are the only contracts relevant to this case that are not barred by the statute of limitations.[9] (Doc. No. 43 at 15.) The Research Associate position was subject to the terms set forth in the offer letter for this position, which Plaintiff Dated: October 19, 2011. (Doc. No. 38, Ex. C.) The letter states that Plaintiff's position as a Research Associate was for a one-year term, and was subject to renewal on an annual basis, the first of which began on November 1, 2011 and ended on October 31, 2012.[10] (Id.) Because Plaintiff alleges that Penn Defendants violated the employment contracts he held throughout his employment, including those in effect after February 12, 2012, his breach of contract claim covering his contracts as a Research Associate is not barred by the statute of limitations.

         2. Plaintiff Has Not Plead the Elements of a Breach of Contract Claim

         Penn Defendants next argue that Plaintiff has failed to plead the elements of a breach of contract claim. (Doc. No. 39 at 9.) In particular, Penn Defendants argue that Plaintiff's breach of contract claim must be dismissed because he has not alleged a specific duty under any contract that was breached. (Id. at 9-10.) Plaintiff contends that his employment contract included guarantees of a future job as a resident or assistant professor with the University. (Doc. No. 38 at ¶¶ 19, 136.) For reasons that follow, Plaintiff's breach of contract claim will be dismissed.

         To state a claim for breach of contract under Pennsylvania law, a plaintiff must allege three things: (1) the existence of a contract, including its essential terms; (2) a breach of duty imposed by the contract; and (3) resultant damages. Alpart v. General Land Partners, Inc., 574 F.Supp.2d 491, 502 (E.D. Pa. 2008). A party claiming breach of contract has the burden of alleging and, ultimately, proving all elements of its cause of action. Udujih v. City of Philadelphia, 513 F.Supp.2d 350, 357 (E.D. Pa. 2007). Penn Defendants argue that the second element of a breach of contract claim-a breach of duty imposed by the contract-was not satisfied.

         As previously noted, any alleged breach of contract claim brought by Plaintiff against Penn Defendants is limited to alleged conduct occurring on or after February 11, 2012. Therefore, the only agreement upon which Plaintiff may base his breach of contract claim is the offer letter for the Research Associate position, which he accepted.[11] (Doc. No. 38, Ex. C.) The letter states as follows:

Dear Dr. Wasseff:
On the basis of our recent conversations, I am pleased to offer you the position of Research Associate in the Department of Neurology. I look forward to working together on conducting research on role of gap junctions in the biology of CNS glia in health and in disease.
Your appointment will be effective on November 1, 2011. This appointment will be initially for one (1) year and continuation during that time period and renewal are based on satisfactory performance, availability of funding, and the terms of policies for (insert title: Instructor A, Lecturer A, or Research Associate), as Academic Support Staff, in the Handbook for Faculty and Academic Administrators <http://www.upenn.edu/assocprovost/handbook/ii b 4.html>.
You will be supported on my grant number 10029126 from the National Multiple Sclerosis Society at an annual rate of $50, 418.00, to be paid in accordance with the payroll schedules of the University of Pennsylvania and prorated for the time period worked. This grant will be supplanted by competing renewal of my NIH grant, "The Role of Connexin32 in the Pathogensis of CMTX", which is approved for funding.
As a Research Associate, you will be eligible to enroll in the University's health and welfare insurance programs for you and your eligible dependents. You are eligible to participate in the University's supplemental retirement annuity plans which currently include TIAA-CREF and Vanguard. The University does not make a contribution to these plans. If you have any questions about your benefits, you can contact the PENN Benefits Center at 1-888-736-6236 (1-888-PENNBEN) or the Retirement Call Center at 1-877-736-6738 (1-877-PENNRET).
As a Research Associate, you will be subject to all applicable University and University of Pennsylvania Health System policies, as they may exist from time to time, including, but not limited to the enclosed policy concerning Penn's Patent and Tangible Research Property <http://www.upenn.edu/almanac/volumes/v51/n22/pdf n22/patent policy.pdf >. Please read, sign and return the Participation Agreement which is enclosed with this offer letter.
This offer is contingent upon your having authorization to work and it is your responsibility to ensure that you are in compliance with U.S. Citizenship and Immigration Services (USCIS) policies. Please contact the University's International Student and Scholar Services (ISSS) office at 215-898-4661 or online at http://www.upenn.edu/oip/iss immediately so that any visa issues may be addressed before you join us. Appointment and payroll documentation cannot be processed until you have presented ISSS approval.
Please sign this offer letter to indicate your acceptance of the terms of your appointment and return it to me by October 1, 2011 with your signed Participation Agreement. I look forward to your coming to the University of Pennsylvania.

(Id.) Plaintiff signed this offer letter on October 19, 2011, and his employment as a Research Associate became effective on November 1, 2011 for the following year. (Id.) The terms set forth in the agreement are clear and unambiguous. Plaintiff's employment as a Research Associate was initially for a one-year term. (Id.) Renewal of his employment contract would be “based on satisfactory performance, availability of funding, ” and the terms of policies for academic support staff as set forth in the Handbook for Faculty and Academic Administrators. (Id.) Plaintiff was to receive a salary of $50, 418 for this position. (Id.) According to the terms of the employment agreement, Penn Defendants had the duty to: (1) allow Plaintiff to work as a Research Associate for one-year, and (2) pay Plaintiff $50, 418 in compensation for this work.

         Penn Defendants fulfilled both of these obligations. In fact, Plaintiff's employment agreement as a Research Associate was renewed three times before his employment ended.

         Plaintiff alleges, however, that Penn Defendants failed to fulfill their obligations established in the 2006 Handbook entitled “Policies for Postdoctoral Appointments, Training and Education” and that this failure constituted a breach of his employment contract. (Doc. No. 38, Ex. B.) Plaintiff contends that “Defendants agreed, among other things, to provide specific and definite services and benefits referenced to in page [sic] 6-24 in the post-doctoral policies.” (Doc. No. 38 at ¶ 136.) In particular, Plaintiff asserts that “as stated in . . . the Penn policies referenced to in the letter, Defendants Penn will provide the following as required in the field, and as provided to other American post-doctoral individuals: internships within Penn as specified in pages 14, 23, including clinical research, internship technology transfer, business planning, establish own laboratory, and obtain assistant professor position [sic].” (Id. at ¶ 19.)

         This argument is unpersuasive for two reasons. First, this 2006 Handbook entitled “Policies for Postdoctoral Appointments, Training and Education” is not referenced in the controlling employment agreement at issue in this case, the offer letter dated August 29, 2011. (Doc. No. 38, Ex. C.) It is different from the Handbook for Faculty and Academic Administrators referenced in the offer letter. (Id.; Doc. No. 39-2, Ex. C.) This letter contains no reference to the 2006 Handbook with which Plaintiff takes issue. Second, the alleged obligations on Penn Defendants in the 2006 Handbook are not obligations at all, but are mere suggestions and guidelines for supervisors to assist Postdoctoral Researchers in their career development. (Doc. No. 38, Ex. B.) The 2006 Handbook does not guarantee that Plaintiff would secure future employment as a resident or assistant professor with the University. For these reasons, Penn Defendants breached no duty owed to Plaintiff and his breach of contract claim will be dismissed.

         B. Plaintiff Has Not Plausibly Alleged a Claim of Promissory Estoppel

         In Count II of the TAC, Plaintiff raises a promissory estoppel claim against Penn Defendants. (Doc. No. 38 at ¶¶ 142-49.) Penn Defendants argue that the promissory estoppel claim should be dismissed because it is barred by the statute of limitations and it fails to state a claim upon which relief can be granted. (Doc. No. 39 at 11.) In particular, Penn Defendants assert that Plaintiff has failed to plead plausible facts satisfying the elements of a promissory estoppel claim. (Id. at 12.)

         1. Plaintiff's Promissory Estoppel Claim is Not Barred by the Statute of Limitations

          Penn Defendants first argue that Plaintiff's promissory estoppel claim is barred by the statute of limitations. (Id. at 11.) Under Pennsylvania law, promissory estoppel claims must be commenced within four years of the alleged breach of the non-contractual promise. See Crouse v. Cyclops Indus., 745 A.2d 606, 610 (Pa. 2000) (holding that the promissory estoppel doctrine “sounds in contract law and . . . like other contract actions, the statute of limitations for a cause of action in promissory estoppel is governed by [42 Pa. Const. Stat. Ann.] § 5525. Therefore, the statute of limitations period . . . is four years.”). Like the statute of limitations for the breach of contract claim, Plaintiff's promissory estoppel allegations must have occurred on or after February 11, 2012.

         Plaintiff alleges that Scherer made promises about Plaintiff receiving additional training and internships to help his career development. (Doc. No. 38 at ¶ 92.) These assurances appear to have been given sometime after 2010, but the exact date is unclear. Thus, at the motion to dismiss stage of the litigation, accepting all factual allegations as true, and viewing the facts in the light most favorable to Plaintiff, the promissory estoppel claim will not be barred by the statute of limitations.[12]

         2. Plaintiff Has Failed to Plead the Elements of a Claim of Promissory Estoppel

         Penn Defendants also argue that Plaintiff has failed to state a claim for promissory estoppel. (Doc. No. 39 at 12.) Pennsylvania courts require a plaintiff to prove three elements to make out a claim of promissory estoppel:

1) the promisor made a promise that he should have reasonably expected to induce action or forbearance on the part of the promisee; 2) the promisee actually took action or refrained from taking action in reliance on the promise; and 3) ...

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