COHN v. PENNSYLVANIA STATE UNIVERSITY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DARAN COHN, :

Plaintiff : CIVIL ACTION

: FILED

PENNSYLVANIA STATE UNIV., NO. 19-2857

Defendant : FB) 12 Ja

ATE EPS 1A!

MEMORANDUM a IY □□□ □□□

PRATTER, J. fo 12, 2020

Daran Cohn! brings this suit against Pennsylvania State University forits4lleged unlawful

actions concerning Ms. Cohn’s enrollment in its Physician Assistant Program. She poses a number

of different claims and theories. She alleges that Penn State failed to provide her the reasonable

accommodations she needed as an individual suffering with Attention Deficit Hyperactivity

Disorder and anxiety. Ms. Cohn also asserts that Penn State breached a contract when it allegedly

failed to follow its own policies and student handbook. Finally, Ms. Cohn’s promissory estoppel

and misrepresentation claims arise from Penn State’s communications concerning Ms. Cohn’s

graduation eligibility and trajectory. ENT'D FEB 1 3 2020

Penn State moves to dismiss Ms. Cohn’s claims, some entirely and others partially. For

the reasons set forth in this Memorandum, the Court dismisses Ms. Cohn’s claims alleging a

violation of Title III of the Americans with Disabilities Act (ADA), breach of contract, and

promissory estoppel. Ms. Cohn’s claims alleging intentional and/or negligent misrepresentation

! Ms. Cohn proceeded pro se in initially filing this suit and in defending against Penn State’s motion

to dismiss. On February 6, 2020, the Court received notification that Ms. Cohn retained counsel. “An

amended] complaint drafted by a pro se litigant must be held to a less exacting standard than a complaint

drafted by trained counsel.” Lopez v. Brown, No. 04-6267, 2005 WL 2972843, at *2 (D.N.J. Nov. 4, 2005)

(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Without regard to Ms. Cohn’s recent retention of

counsel, the Court holds Ms. Cohn’s amended complaint to the less exacting pro se standard.

and violations of Title II of the ADA and § 504 of the Rehabilitation Act survive this motion to

dismiss.

BACKGROUND

I. Penn State’s Physician Assistant Program, Student Handbook, and Financial

Aid Satisfactory Academic Policy

Ms. Cohn alleges that Penn State is a public university and place of public accommodation

which receives federal funding. Penn State offers a two-year graduate Physician Assistant

Program. Students enrolled in the Program must complete three semesters of classes during their

first year of the Program and three semesters of clinical rotations during their second year. Each

year of enrollment in the Program costs around $60,000.

Penn State has a Financial Aid Satisfactory Academic Policy and a student handbook

pertaining to the Program. Ms. Cohn alleges that the policy and student handbook require Penn

State “to take various measures to assist students and to prevent them from incurring student debt

if they are not progressing through the program.” Am. Compl. at § 37 (Doc. No. 3).

Pursuant to the student handbook, students cannot proceed to the clinical year if they do

not maintain good academic standing. Ifa student takes a leave of absence, the student handbook

states that Penn State’s Academic Review Committee must approve an action plan to assist the

student upon his or her return from leave. The student handbook also provides that Penn State

must make student grades available on an electronic database to keep students apprised of their

academic standing.

Under the Financial Aid Satisfactory Academic Policy, Penn State may not issue financial

aid to a student who has failed a course or is otherwise not in good academic standing. Rather, the

student must retake the course and receive a passing grade before Penn State will issue additional

student aid.

Il. Ms. Cohn’s Enrollment and the Summer 2015, Fall 2015 and Spring 2016

Semesters?

Penn State accepted Ms. Cohn into its Program in or around 2015. Ms. Cohn enrolled in

the Program during the summer of 2015. Ms. Cohn is an individual with disabilities who suffers

from Attention Deficit Hyperactivity Disorder and anxiety. Ms. Cohn alleges that with reasonable

accommodations, she is qualified to participate in the Program. Before Ms. Cohn began her first

semester, she notified Penn State that she had disabilities which required reasonable

accommodations. She also provided medical documentation concerning her disabilities. Ms.

Cohn alleges that despite its knowledge that accommodations were necessary, Penn State neither

engaged in an interactive process with her nor provided her any accommodations during her first,

second, and third semesters.

During Ms. Cohn’s first semester, she failed one course, earned a grade point average

below a 3.0., and was placed on academic probation. Ms. Cohn asserts that she was not in good

academic standing after her first semester. Ms. Cohn alleges that because she failed a course and

maintained a grade point average below 3.0, Penn State was barred from awarding her additional

student loans until she retook the course she failed and improved her grade point average. Penn

State, however, continued issuing Ms. Cohn student loans.

By the end of the 2015-2016 academic year, Ms. Cohn was still not in good academic

standing. Penn State nevertheless allowed her to progress to the clinical portion of the Program.

Pursuant to Ms. Cohn’s amended complaint, the Court understands the academic year to begin

during the summer semester and end during the spring semester.

Il. Ms. Cohn’s Summer 2016, Fall 216, and Spring 2017 Semesters

Ms. Cohn generally alleges that Penn State discriminated against her throughout the entire

2016-2017 academic year by denying her, based on her disabilities, the same educational

opportunities as her peers.

Ms. Cohn began the clinical portion of the Program in the summer of 2016. Ms. Cohn

alleges that Penn State did not provide her accommodations during the summer 2016 semester

despite knowing that she needed to be accommodated. Ms. Cohn asserts that she struggled

academically during the summer 2016 due to Penn State’s failure to provide her any

accommodations. Midway through this semester, Penn State allegedly forced Ms. Cohn to take

a leave of absence based on her disabilities. Ms. Cohn accordingly did not finish one of her courses

during this semester. Ms. Cohn returned from leave for the last of her rotations during the summer

2016 semester. Ms. Cohn asserts that Penn State violated its own policy when Penn State’s

Academic Review Committee did not approve an action plan to facilitate her return from leave.

Penn State then dismissed Ms. Cohn from the Program based on her summer 2016 grades,

her academic probation during the 2015-2016 academic year, and her failure to maintain good

academic standing. Ms. Cohn paid her tuition for the fall 2016 semester and began her fall 2016

coursework prior to her dismissal. After discussing the dismissal with Penn State’s staff, Penn

State permitted Ms. Cohn to stay in the Program. Ms. Cohn alleges that Penn State’s staff

“represented” to her that her academic probation during the 2015-2016 academic year “would not

affect her ability to graduate from the Program.” Jd. at J 69.

Recognizing that Ms. Cohn qualifies for accommodations under the ADA and § 504 of the

Rehabilitation Act, Penn State agreed to provide Ms. Cohn accommodations sometime during the

summer of 2016. Penn State “represented” that it would provide Ms. Cohn (1) a quiet, isolated

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setting for exams; (2) a quiet, isolated setting fcr taking notes during clinical rotations; (3) clinical

placements near her home and support network; and (4) a revised clinical schedule to

accommodate her disabilities. Jd. at 71. Ms. Cohn asserts that Penn State sporadically provided

a quiet, isolated setting for exams and completely failed to provide the latter three

accommodations. Ms. Cohn asserts that Penn State’s alleged failure to accommodate her denied

her an equal educational opportunity and exacerbated her anxiety.

Apart from paying for and beginning course work, Ms. Cohn does not allege any facts

concerning her fall 2016 semester. Ms. Cohn alleges that during her spring 2017 semester, Penn

State did not make her grades available on an electronic database nor did it keep Ms. Cohn apprised

of her academic standing. Because Ms. Cohn believed that she achieved satisfactory grades during

the spring 2017 semester, she continued incurring student loans and pursuing her Physician

Assistant degree.

IV. Ms. Cohn’s Summer 2017, Fall 2017, and Spring 2018 Semesters

Ms. Cohn alleges that Penn State continued to discriminate against her by denying her the

same educational opportunities as her peers throughout the 2017-2018 academic year. Ms. Cohn

alleges that Penn State forced her to take a second leave of absence based on her disabilities during

the summer of 2017. Before Ms. Cohn took the leave of absence, Penn State’s staff “represented”

to her that she would be eligible for graduation in December 2017 if she returned from leave in the

fall of 2017 and achieved a 3.0 grade point average during that semester. Relying on this

representation, Ms. Cohn returned from leave ‘n fall 2017 and incurred additional student loans.

Penn State’s Academic Review Committee did not approve an action plan to facilitate her

transition back from leave.

Penn State allegedly again failed to consistently provide Ms. Cohn accommodations during

the fall of 2017. Ms. Cohn asserts that Penn State again only sporadically provided her a quiet,

isolated setting for exams and failed to provide her a quiet, isolated setting for taking notes during

clinical rotations; appropriately select and arrazige her clinical placements; and revise her clinical

schedule. Ms. Cohn claims that she raised these failures with Penn State’s staff to no avail. Ms.

Cohn asserts that Penn State’s alleged failure to accommodate her denied her an equal educational

opportunity and exacerbated her anxiety.

Ms. Cohn alleges that Penn State failed to make her grades available to her on an electronic

database and keep her apprised of her academic standing for most of the fall 2017 semester. Penn

State’s staff eventually disclosed Ms. Cohn’s grades in December 2017. Penn State’s staff

informed Ms. Cohn that although she achieved a 3.0 grade point average during the fall 2017

semester, her cumulative grade point average fell below 3.0. Penn State’s staff informed Ms.

Cohn that unless she raised her cumulative grade point average above 3.0 during the spring 2018

semester, she would be dismissed from the Prcgram and unable to graduate.

Ms. Cohn asserts that Penn State only sporadically provided her a quiet, isolated setting for

exams and otherwise failed to provide her other accommodations during the spring 2018 semester.

Ms. Cohn again raised Penn State’s alleged failures to its staff to no avail. Ms. Cohn asserts that

Penn State “effectively dismissed” her from the Program near the end of the spring 2018 semester.

Id. at § 104. Ms. Cohn asserts that Penn State dismissed her “in part because of her academic

probation in 2015 and 2016, even though it had previously promised her that the probation would

not impact her ability to graduate. /d. at § 105. Ms. Cohn contends that her disabilities motivated

Penn State’s decision to dismiss her from the Program and its actions leading up to her dismissal.

PROCEDURAL HISTORY

Ms. Cohn filed her initial complaint against Pennsylvania State University on June 28,

2019. Ms. Cohn asserts various civil rights and state law claims in connection with her enrollment

and participation in Penn State’s Physician Assistant Program. Prior to serving Penn State her

initial complaint, Ms. Cohn filed an amended complaint on August 1, 2019. Ms. Cohn served

Penn State the initial and amended complaint on August 29, 2019. The parties agreed to toll the

statute of limitations from May 6, 2019 to June 30, 2019.

Ms. Cohn makes a variety of claims against Penn State. They are:

e Count I: Violations of § 504 of the Rehabilitation Act

e Count II: Violations of Title II of the Americans with Disabilities Act

e Count III: Violations of Title III of the Americans with Disabilities Act

e Count IV: Breach of Contract

e Count V: Promissory Estoppel

e Count VI: Negligent and/or Intentional Misrepresentation

Penn State filed a motion to dismiss raising various challenges to all of Ms. Cohn’s claims.

LEGAL STANDARD

At the outset, the Court notes that Ms. Cohn’s pro se pleading must be “liberally

construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Bieros v. Nicola, 839 F. Supp.

332, 334 (E.D. Pa. 1993). Due to an “understandable difference in legal sophistication,” pro se

litigants such as Ms. Cohn are held to a “less exacting standard” than trained counsel. Lopez v.

Brown, No. 04-6267, 2005 WL 2972843, at *2 (D.N.J. Nov. 4, 2005) (citing Haines v. Kerner,

404 U.S. 519, 520 (1972)). The Court stands orepared to “apply the applicable law, irrespective

of whether the pro se litigant has mentioned it by name.” Diuhos v. Strasberg, 321 F.3d 365, 369

(3d Cir. 2003) (internal citation omitted).

A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Although Rule 8

of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim

showing that the pleader is entitled to relief,” FED. R. Civ. P. 8(a)(2), “to ‘give the defendant fair

notice of what the . . . claim is and the grounds upon which it rests,’” the plaintiff must provide

“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted) (alteration

in original).

To survive a motion to dismiss, a plaintiff must plead “factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). Specifically, “[flactual allegations must be enough to raise a

right to sche above the speculative level.” Twombly, 550 U.S. at 555. The question is not whether

the claimant “will ultimately prevail . . . but whether [her] complaint [is] sufficient to cross the

federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011) (citation and internal

quotation marks omitted). Thus, assessment of the sufficiency of a complaint is “a context-

dependent exercise” because “[s]ome claims require more factual explication than others to state

a plausible claim for relief.” W. Pa. Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d

Cir. 2010).

In evaluating the sufficiency of a complaint, “a court must consider only the complaint,

exhibits attached to the complaint, matters of public record, [and] undisputedly authentic

documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605

F.3d 223, 230 (3d Cir. 2010). The Court must “accept all allegations as true.” ALA, Inc. v. CCAIR,

Inc., 29 F.3d 855, 859 (3d Cir. 1994); see also Twombly, 550 U.S. at 555 (stating that courts must

“assum[e] that all the allegations in the complaint are true (even if doubtful in fact)”). A court

must also accept as true all reasonable inferences emanating from the allegations and view those

facts and inferences in the light most favorable to the nonmoving party. See Rocks v. City of Phila.,

868 F.2d 644, 645 (3d Cir. 1989); see also Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134

(3d Cir. 2010).

However, that admonition does not demand that the Court ignore or discount reality. The

Court “need not accept as true unsupported conclusions and unwarranted inferences,” Doug Grant,

Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citations and internal

quotation marks omitted), and “the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.” Jgbal, 556 U.S. at

678; see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (explaining that

a court need not accept a plaintiff's “bald assertions” or “legal conclusions” (citations omitted)).

If a claim “is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment,

unless an amendment would be inequitable or futile.” Phillips v. Cty. of Allegheny, 515 F.3d 224,

236 (3d Cir. 2008). □

DISCUSSION

Ms. Cohn brings failure-to-accommodete claims under the ADA and Rehabilitation Act, a

breach of contract claim, a promissory estoppel claim, and a negligent and/or intentional

misrepresentation claim against Penn State. The Court will address Penn State’s challenges to Ms.

Cohn’s claims in turn.

I. Penn State’s Statute of Limitations Arguments

Penn State argues that Ms. Cohn’s claims alleging violations of Titles II and III of the ADA

and § 504 of the Rehabilitation Act and common law misrepresentation are in part barred on statute

of limitations grounds. Specifically, Penn State asserts that all actions occurring before May 6,

2017 are time-barred and thus cannot support ker claims.

Although the language of Rule 8(c) cf the Federal Rules of Civil Procedure does not

authorize a defendant to raise a statute of limitation defense in the context of a Rule 12(b)(6)

motion to dismiss, “an exception is made where the complaint facially shows noncompliance with

the limitations period and the affirmative defense clearly appears on the face of the pleading.”

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994), abrogated

on other grounds by Rotkiske v. Klemm, 890 F.3d 422, 428 (3d Cir. 2018) (citations omitted); see

Datto v. Harrison, 664 F. Supp. 2d 472, 482 (E.D. Pa. 2009). When evaluating the statute of

limitations applicable to a claim, the Court is limited to reviewing “the complaint, the exhibits

attached to the complaint, and matters of public record.” Datto, 664 F. Supp. 2d at 482.

A. Ms. Cohn’s ADA and § 504 Claims

The Court first considers the statute cf limitations applicable to Ms. Cohn’s ADA and

Rehabilitation Act claims. As discussed below, Ms. Cohn’s ADA claim brought under Title III is

dismissed on separate grounds. Accordingly, the Court focuses on Ms. Cohn’s claims brought

under Title II of the ADA and § 504 of the Rehabilitation Act.

Neither the ADA nor § 504 of the Rehabilitation Act include express statutes of limitations.

Disabled in Action of Pennsylvania vy. Se. Pennsylvania Transp. Auth. □ 539 F.3d 199, 208 (3d Cir.

2008). When determining the applicable statute of limitations for such claims, courts borrow the

statute of limitations from the most analogous state law applicable in the state in which they sit.

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North Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995); see also Disabled in Action, 539 F.3d at

208 (noting that the default four-year statute cf limitations for federal statutes does not apply to

the ADA or the Rehabilitation Act). Courts have applied Pennsylvania’s two-year statute of

limitations for personal injury claims to ADA and § 504 claims. See Disabled in Action, 539 F.3d

at 208; see Datto, 664 F. Supp. 2d at 482 (applying Pennsylvania’s two-year personal injury statute

of limitations to plaintiff's ADA and § 504 claims concerning his university’s alleged failure to

accommodate him during his enrollment in its M.D./Ph.D. program and his eventual dismissal

from the program).

Federal law, however, governs when federal causes of action accrue. Romero vy. Allstate

Corp., 404 F.3d 212, 221 (3d Cir. 2005). “A federal discrimination claim accrues and the

applicable statute of limitations begins to run when the plaintiff knows or has reason to know of

the injury that is the basis of the action.” Saylor v. Ridge, 989 F. Supp. 680, 686 (E.D. Pa. 1998)

(citing Toney v. U.S. Healthcare, Inc., 840 F. Supp. 357, 359 (E.D. Pa. 1993)); see Disabled in

Action, 539 F.3d at 209 (‘““[I]n the absence ofa contrary directive from Congress,’ we apply the

‘federal discovery rule,’ which dictates that a federal cause of action accrues ‘when the plaintiff

discovers, or with due diligence should have discovered, the injury that forms the basis for the

claim.””) (quoting Romero, 404 F.3d at 222).

As noted, the parties agreed to toll the statute of limitations from May 6, 2019 through June

30, 2019. Thus, the two-year statute of limitation would bar Ms. Cohn’s reliance on alleged acts

that she had reason to discover prior to May 6, 201 7. Ms. Cohn had reason to know of her injury

when Penn State allegedly failed to appropriately provide her reasonable accommodations. Ms.

Cohn alleges that Penn State failed to provide her accommodations during the summer 2015, fall

2015, sting 2016, summer 2016, fall 2017, and spring 2018 semesters.

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Because the summer 2015, fall 2015, and summer 2016 semesters predated May 6, 2017,

Ms. Cohn’s allegations regarding these semesters are time-barred by the two-year statute of

limitations unless Ms. Cohn’s equitable estoppel argument discussed below is viewed as

paramount. Ms. Cohn, however, also alleges that Penn State acted unlawfully after May 6, 2017

during the fall 2017 and spring 2018 semesters. Penn State’s alleged failure to accommodate Ms.

Cohn during the fall 2017 and spring 2018 semesters are instances of separate and discrete acts

considered apart from Penn State’s actions taken during the summer 2016 semester. See Datto,

664 F. Supp. 2d at 485 (finding a university’s decision to dismiss a student from its M.D./Ph.D.

program and its subsequent decision to not reinstate the student into the program to be “separate

and discrete acts” afforded their “own statute of limitations clock”). Therefore, Penn State’s

actions completed after May 6, 2017 supporting Ms. Cohn’s Title II and § 504 claims survive this

motion to dismiss, without regard to the application of Ms. Cohn’s equitable estoppel argument.

In sum, the Court does not dismiss Ms. Cohn’s claims brought under Title II of the ADA

and § 504 of the Rehabilitation Act to the extent they concern Penn State’s actions occurring after

May 6, 2017. In Section I.C., the Court further assesses the application of equitable tolling

principles concerning the actions Penn State took before May 6, 2017.

B. Ms. Cohn’s Misrepresentation Claim

The Court next considers the staiute of limitations applicable to Ms. Cohn’s

misrepresentation claim. Penn State argues that statements made prior to May 6, 2017 are time-

barred.?

2 fhéStue sa, Penn Stars debriestiy asserts in its memorandum in support of it motion to dismiss

that Ms. Cohn’s misrepresentation claim is “based on statements purportedly made to Plaintiff in 2015,

2016, and 2017.” Def.’s Memo. in Supp. Mot. to Dismiss at 23 (Doc. No. 5-2). Ms. Cohn’s amended

complaint, however, focuses on misrepresentations allegedly made “in 2016, 2017, and 2018.” Am. Compl.

at | 201 (Doc. No. 3).

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Pennsylvania’s two-year statute of limitation also applies to Ms. Cohn’s intentional and/or

negligent misrepresentation claim. 42 Pa. C.S.A. § 5524; see also Toy v. Metro. Life Ins. Co., 863

A.2d 1, 9 (Pa. Super. Ct. 2004). Under Pennsylvania law, a statute of limitation generally “begins

to run when the plaintiff's cause of action arises or accrues.” Cooper v. Sirota, 37 F. App’x 46,

49 (3d Cir. 2002) (citing Leedom v. Spano, 647 A.2d 221, 226 (Pa. Super. Ct. 1994)). “[T]he cause

of action accrues on the date of injury” in a torts case. Jd. (citing Stroback v. Camaioni, 674 A.2d

257, 262 (Pa. Super. Ct. 1996)).*

Here, Ms. Cohn alleges that “[iJn 2016, 2017, and 2018, [Penn State] made

misrepresentations to Ms. Cohn that she was in good academic standing and that she would be

able to graduate from the Physician Assistant Program.” Am. Compl. at 201 (Doc. No. 3). In

her amended complaint, Ms. Cohn specifically alleges that Penn State misrepresented to her (1) in

2016 that her academic probation would not affect her ability to graduate from the Program and

(2) sometime prior to her summer 2017 leave of absence “that if [Ms. Cohn] returned from leave

in fall 2017 and achieved a 3.0 GPA in fall 2017, she would be eligible for graduation in December

2017.” Jd. at § 85. According to Ms. Cohn’s amended complaint, these statements constitute

misrepresentations because (1) Penn State did, in fact, dismiss her “in part because of her academic

probation in 2015 and 2016,” id. at § 105, and (2) Ms. Cohn was required to obtain a cumulative

In Pennsylvania, “the discovery rule applies to toll the statute of limitations where an injured party

is unable ‘despite the exercise of reasonable diligence, to know that he has been injured and by what cause.”

First Sealord Sur. v. Durkin & Devries Ins. Agency, 918 F. Supp. 2d 362, 380 (E.D. Pa. 2013) (quoting

Drelles v. Mfr. Life. Ins. Co., 881 A.2d 822, 831 (Pa. Super. 2005)). The discovery rule tolls the statute of

limitations in cases “where a party neither knows nor reasonably should have known of [her] injury and its

cause at the time [her] right to institute suit arises.” Fine v. Checcio, 870 A.2d 850, 859 (Pa. 2005). “When

a court is presented with the assertion that the discovery rule applies, it must address the ability of the

damaged party, exercising reasonable diligence, to know that he has been injured and by what cause.’”

First Sealord Sur., 918 F. Supp. 2d at 380 (quoting Drelles, 881 A.2d at 831). Because the Court determines

that Ms. Cohn’s misrepresentation claim survives this motion to dismiss on other grounds and because the

Court was not presented with the assertion that the discovery rule applies, there will be no analysis of the

discovery rule here.

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grade point average above 3.0 to be eligible to graduate, not a 3.0 grade point average during only

the fall 2017 semester.

Misrepresentations made in 2016 predate the two-year statute of limitations period,

whereas misrepresentations made in 2018 fail within the two-year period. As for the 2017

misrepresentations, Ms. Cohn asserts that Penn State misrepresented material information

sometime before she took her leave of absence during the summer 2017 semester. Depending on

when the alleged misrepresentations were actually made, the 2017 misrepresentations may also

fall within the two-year period. Excluding Ms. Cohn’s equitable estoppel argument discussed

below, the two-year statute of limitations would bar Ms. Cohn’s misrepresentation claim to the

extent it concerns actions predating May 6, 2017. The two-year statute of limitations does not,

however, bar Ms. Cohn’s allegations concerning actions Penn State took after May 6, 2017.

C. Ms. Cohn’s Equitable Estoppel Argument

Ms. Cohn argues that Penn State should be equitably estopped from raising its statute of

limitations challenges concerning actions taken prior to May 6, 2017. Ms. Cohn’s equitable

estoppel argument focuses on her reliance on Penn State’s alleged misrepresentations (1) published

in its policies and student handbook and (2) communicated by its staff concerning her graduation

eligibility and trajectory. Ms. Cohn also asserts for the first time in her response:

Through Ms. Cohn’s legal counsel, Penn State represented that Ms.

Cohn could still earn her degree with the completion of “a few

outstanding requirements,” even though the Program had already

withdrawn her enrollment. Ms. Cohn found out that this was not

true in December 2018, as Penn State had withdrawn her enrollment

in December of the previous year... . Prior legal counsel delayed

filing of this lawsuit by misleading Ms. Cohn about the relevant law

and statutes of limitation applicable to her case. Ms. Cohn’s reliance

on the misrepresentations made to her by Penn State and her

previously legal counsel caused the delay in filing this lawsuit.

Pl.’s Resp. Mot. to Dismiss at Jf 101-01, 103-65 (Doc. No. 17).

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Penn State argues that Ms. Cohn fails to plead sufficient facts asserting her equitable

estoppel argument in her amended complaint and also argues that this means the Court ought not

consider the assertions included in Ms. Cohn’s response briefing that are not pleaded in her

amended complaint. “[W]hile a court may entertain a motion to dismiss on statute of limitations

grounds, it may not allocate the burden of invoking” a defense to a statute of limitations argument

“in a way that is inconsistent with the rule that a plaintiff is not required to plead, in a complaint,

facts sufficient to overcome an affirmative defense.” Schmidt v. Skolas, 770 F.3d 241, 251 □□□

Cir. 2014) (citations omitted). Here, Penn State is urging the Court to do just that.

The Court first considers the application of equitable principles related to tolling the statute

of limitations applicable to Ms. Cohn’s federal failure-to-accommodate claims.’ Equitable tolling

of a plaintiff's federal claims may arise “where a defendant actively misleads a plaintiff with

respect to her cause of action.” Lake v. Arnoid, 232 F.3d 360, 370 n.9 (3d Cir. 2000). But see

Katz v. Nat’l Bd. of Medical Examiners, 751 F. App’x 231, 236 (3d Cir. 2018) (denying equitable

tolling of student’s ADA and § 504 claims on the basis that the denial of his request for

accommodations was fraudulently concealed because the student was still “on notice that he could

have a potential discrimination suit” within the two-year statute of limitations period); United

States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998) (“Federal courts invoke the doctrine of

equitable tolling ‘only sparingly,’ and will not toll a statute because of ‘what is at best a garden

variety claim of excusable neglect’ on the part of the defendant.”) (citations omitted).

Although here the applicability of equitable tolling is not evident on the face of the

amended complaint, Ms. Cohn “also does not plead facts that unequivocally show” that such a

In response to Penn State’s statute of limitation arguments, Ms. Cohn asserts an equitable estoppel

argument applying Pennsylvania law regarding both her federal failure-to-accommodate and common law

misrepresentation claim. The Court construes Ms. Cohn’s response to assert an equitable tolling argument

frequently considered when analyzing federal claims such as federal failure-to-accommodate claims.

ie

principle “does not apply.” Schmidt, 770 F.3d at 251 (emphasis added). In the absence of

allegations demonstrating that such a doctrine should not apply here, the Court declines to dismiss

any part of Ms. Cohn’s Title II and § 504 claims at the motion to dismiss stage, mindful once again

of the indulgences extended to pro se litigants.

The Court next assesses Ms. Cohn’s equitable estoppel argument concerning her state law

misrepresentation claim. Under Pennsylvania law, the doctrine of equitable estoppel “applies

where, because of something that has been done, a party is denied the right to plead or prove an

otherwise important fact[.]” Nesbitt v. Erie Coach Co., 204 A.2d 473, 476 (Pa. 1964). “[I]f

through fraud or concealment the defendant causes the plaintiff to relax his vigilance or deviate

from his right on inquiry, the defendant is estopped from invoking the bar of limitation of action.”

Id. at 475 (citation omitted), The doctrine may be applied “where the party asserting estoppel

established by clear, precise and unequivocal evidence (1) that the party against whom the doctrine

is sought to be asserted intentionally or negligently misrepresented a material fact, knowing or

with reason to know that the other party would justifiably rely on the misrepresentation, (2) that

the other party acted to his or her detriment by justifiably relying on the misrepresentation, and (3)

that there was no duty of inquiry on the party seeking to assert estoppel.” Homart Dev. Co. v.

Sgrenci, 662 A.2d 1092, 1099-1100 (Pa. Super. Ct. 1995) (en banc). It is the jury’s duty to

determine whether the “alleged remarks were made” and for the Court to decide whether those

remarks constitute an application of the doctrine. Nesbitt, 204 A.2d at 476. “In order for the

doctrine of estoppel to be applied in bar of the statute of limitations, fraud or concealment must

necessarily be established.” Jd. This requires demonstrating “fraud in the broadest sense which

includes an unintentional deception.” /d. at 476.

16

As a preliminary matter, the Court rejects Ms. Cohn’s argument that her prior legal

counsel’s alleged misrepresentations concerning the statutes of limitations applicable to her claims

supports equitable estoppel. Notably, Ms. Cohn’s allegations focus on alleged misrepresentations

made by her prior counsel, not Penn State. Rather, the Court approaches this issue from a different

angle. As noted, these allegations are also exclusively asserted in Ms. Cohn’s response, not her

amended complaint. Although Ms. Cohn does not plead any facts asserting that Penn State misled

her regarding the time frame in which she could bring her misrepresentation claim, Ms. Cohn also

does not plead any facts unequivocally demonstrating that Penn State did not make such

misrepresentations. Again, the Court declines to require Ms. Cohn to plead facts in her complaint

to overcome an affirmative defense. Schmidt, 770 F.3d at 251 (citations omitted).

Moreover, there is a rational possibility that Ms. Cohn’s alleged reliance on Penn State’s

misrepresentations supporting her claim may have denied Ms. Cohn the right to plead important

facts concerning this claim. Ms. Cohn alleges that Penn State first made a misrepresentation

sometime in 2016. Am. Compl. at § 201 (Doc. No. 3). Despite Penn State’s allegedly

contradictory misrepresentations, Ms. Cohn was “effectively dismissed” at the end of the spring

2018 semester. Jd. at § 104. Accepting as true all reasonable inferences emanating from Ms.

Cohn’s allegations, Ms. Cohn may have not realized that some of the alleged misrepresentations

supporting her claim were in fact misrepresentations until the two-year statute of limitations

already passed. At this early stage, the Court therefore refrains from dismissing any part of Ms.

Cohn’s misrepresentation claim.°

In the event the Court determined that Ms. Cohn’s erittnct claim survived this motion to dismiss,

Penn State alternatively argued that Ms. Cohn’s misrepresentation claim should be barred by

Pennsylvania’s gist of the action doctrine. As noted below, the Court dismisses Ms. Cohn’s contract claim.

The Court therefore does not address Penn State’s gist of the action argument, and Penn State does not

otherwise challenge Ms. Cohn’s misrepresentation claim.

17

Il. Ms. Cohn’s ADA Claim Brought Under Title III

In addition to its statute of limitations argument, Penn State argues that it is improper to

bring a Title III claim against a public university. To state a claim under Title III of the ADA, a

plaintiff “must allege that (1) [s]he was discriminated against on the basis of disability; (2) in the

full and equal enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation; (3) by any person who owns, leases (or

leases to), or operates a place of public accommodation.” Bowers v. Nat’l Collegiate Athletic

Ass’n, 9 F. Supp. 2d 460, 480 (D.N.J. 1998) (collecting cases); see 42 U.S.C. § 12182(a) (“No

individual shall be discriminated against on the basis of disability in the full and equal enjoyment

of the goods, services, facilities, privileges, advantages, or accommodations of any place of public

accommodation by any person who owns, leases (or leases to), or operates a place of public

accommodation.”).

“Title III of the ADA applies to private entities providing public accommodations,

however, not to public entities.” DeBord v. Ed. of Educ. of Ferguson-Florissant Sch. Dist., 126

F.3d 1102, 1106 (8th Cir. 1997) (citing 42 U.S.C. §§ 12181-82; Sandison v. Michigan High School

Athletic Ass’n, Inc., 64 F.3d 1026, 1036 (6th Cir. 1995)). The ADA defines a “public entity” as,

in part, “any department, agency, special purpose district, or other instrumentality of a State or

States or local government.” 42 U.S.C. § 1213?(1)(b). A “private entity” is defined as “any entity

other than a public entity.” Jd. at § 12181(6). Notably, only private schools, not public schools,

are subject to Title III of the ADA. See id. at § 12181(7); 28 C.F.R. § 36.104; see DeBord, 126

F.3d at 1106.

Here, Ms. Cohn alleges that Penn State is a “public university,” a “state entity,” and “a

place of public accommodation.” Am. Compl. at §§ 6-7; 158 (Doc. No. 3). Because Ms. Cohn’s

18

amended complaint alleges that Penn State is a public university, she cannot pursue a Title II]

claim.

III. Ms. Cohn’s Breach of Contract Claim

Ms. Cohn brings a breach of contract claim against Penn State for purportedly violating

the Program’s student handbook and the Financial Aid Satisfactory Academic Policy. The

defendants argue that the provisions of the student handbook and policy do not create an

enforceable contract between Ms. Cohn and Penn State.

To prove a breach of contract claim, “Pennsylvania law requires that a plaintiff allege: ‘(1)

the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the

contract, and (3) resultant damages.’” Hopkins v. GNC Franchising, Inc., 288 F. App’x 871, 873

(3d Cir. 2008) (quoting CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999)).’

Courts in Pennsylvania have “declined to construe the student handbook of a public

university as a contract between the public university and the student.” Tran v. State Sys. of Higher

Educ., 986 A.2d 179, 183 (Pa. Commw. Cit. 2009) (citing Crabtree v. California Univ. of

Pennsylvania, 606 A.2d 1239, 1240 n. 3 (Pa. Commw. Ct. 1990)); see Borrell v. Bloomsburg

Univ., 955 F. Supp. 2d 390, 408 (M.D. Pa. 2013); Bradshaw v. Pennsylvania State Univ., No. 10-

4839, 2011 WL 1288681, at *2 (E.D. Pa. Apr. 5, 2011) (“If Pennsylvania State University is a

public university, then the plaintiff cannot state a contract claim pursuant to a university

handbook.”); cf; Reardon v. Allegheny College, 926 A.2d 477, 481 (Pa. Super. Ct. 2007) (“The

relationship between a privately funded college and a student has traditionally been defined in this

7 The courts in this District often split the first factor of the Third Circuit Court of Appeals’ test into

two parts: ““(1) the existence of a valid and binding contract to which the plaintiff and defendants were

parties [and] (2) the contract's essential terms.” Flynn v. LaSalle Univ., No. 97-4542, 1998 WL 599512, at

*4 (E.D. Pa. Sept. 9, 1998) (citing Gundlach v. Reinstein, 924 F. Supp. 684, 688 (E.D. Pa. 1996)). The

courts also add an additional factor, “that plaintiff complied with the contract’s terms,” making the test for

a breach of contract a five-part test. Id.

1g

Commonwealth as strictly contractual in nature.”) (citations omitted) (emphasis added). Ms. Cohn

alleges that Penn State is a public university. Because Ms. Cohn’s breach of contract claim is

based on a public university’s alleged breach of its student handbook and policy® provisions, her

breach of contract claim similarly fails under the case law.

In her response, Ms. Cohn suggests that the student handbook should represent “at least an

implied contract between the student and the Program.” Pl.’s Resp. Mot. to Dismiss at 14 (Doc.

No. 17). “A contract implied in fact has the same legal effect as any other contract. It differs from

an express contract only in the manner of its formation.” Jngrassia Const. Co., Inc. Walsh, 486

A.2d 478, 483 n.7 (Pa. Super. Ct. 1984), Whereas “[a]n express contract is formed by either

written or verbal communication[,] [t]he intent of the parties to an implied in fact contract is

‘inferred from their acts in light of the surrounding circumstances.’” Jd. (quoting Cameron v.

Eynon, 3 A.2d 423, 424 (1939)). A party may only allege the existence of both an express contract

and an implied contract if the terms of the contracts differ. In re Penn Cent. Transp. Co., 831 F.2d

1221, 1229 (3d Cir. 1987) (“[N]Jo implied-in-fact contract can be found when . . . the parties have

an express agreement dealing with the same subject.”) (citations omitted); see JTT Fed. Support

Serv. v. United States, 531 F.2d 522, 528 n. 12 (1976). Here, Ms. Cohn’s breach of contract claim

is based entirely on Penn State’s alleged failure to follow written provisions and policies. She

does not allege any additional facts concerning an additional, unrelated implied contract.

To the extent Ms. Cohn’s amended complaint contains any additional breach of contract

allegations, they similarly fail. Ms. Cohn alleges that, in addition to failing to comply with its own

policies, Penn State “otherwise breached its contractual duties” to her and that such “breaches were

It is unclear whether the policies Ms. Cohn relies on are all contained within the student handbook.

Regardless, the same bar against holding public university’s accountable for allegedly violating a policy

published within a student handbook would necessarily apply to its alleged violation of its policy generally

published outside of its student handbook. Ms. Cohn does not cite any case law that suggests otherwise.

20

material and caused Ms. Cohn to suffer damages.” Am. Compl. at §§ 183-84 (Doc. No. 3). A

plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do.” Twombly, 550 U.S. at 555 (2007). Ms. Cohn does not provide

any allegations in her amended complaint demcnstrating which additional contractual duties Penn

State allegedly breached or how it breached such contractual duties. Accordingly, Ms. Cohn’s

assertion that Penn State “otherwise breached its contractual duties” fails. Am. Compl. at □ 183

(Doc. No. 3).

The Court therefore dismisses Ms. Cohn’s breach of contract claim.

IV. Ms. Cohn’s Promissory Estoppel Claim

Ms. Cohn brings a promissory estoppel claim against Penn State. Ms. Cohn asserts that

because she relied on Penn State’s promises in 2016 and 2017 that “she was on track to graduate,”

she continued the Program and assumed student loan debt. Am. Compl. at § 186 (Doc. No. 3).

“Promissory estoppel is an equitable remedy traditionally used to enforce a promise in the

absence of bargained-for consideration.” W. Chester Univ. Found. v. MetLife Ins. Co. of Conn.,

259 F. Supp. 3d 211, 222 (E.D. Pa. 2017) (citing Bull Int'l, Inc. v. MTD Consumer Grp., Inc., 654

F, App’x 80, 100 (3d Cir. 2016)); see Cornell Narbeth, LLC v. Borough of Narbert, 167 A.3d 228,

239 (Pa. Commw. Ct. 2017) (“[P]romissory estoppel provides an equitable remedy to enforce a

‘contract-like promise that would be otherwise unenforceable under contract law principles.”)

(quoting Peluso v. Kistner, 970 A.2d 530, 532 (Pa. Commw. Ct. 2009)). “Promissory estoppel

allows the court to enforce a party’s promise that is unsupported by consideration where (1) the

promisor makes a promise that he reasonably expects to induce action or forbearance by the

promisee, (2) the promise does induce action or forbearance by the promisee, (3) and injustice can

only be avoided by enforcing the promise.” Carlson v. Arnot-Ogden Memorial Hosp., 918 F.2d

21

411, 416 (3d Cir. 1990) (citing Cardmone v. Univ. of Pittsburgh, 384 A.2d 1228, 1233. (Pa. Super.

Ct. 1978)). “These factors are strictly enferced to guard against the ‘loose application’ of

promissory estoppel.’” Cornell Narbeth, 167 A.3d at 239 (quoting Peluso, 970 A.2d at 533).

To establish a promissory estoppel claim, there must exist “an express promise between

the promisor and the promise”—“a ‘broad or vague implied promise’ will be deemed insufficient.”

MRO Corp. v. Humana Inc., 383 F. Supp. 3d 417, 424 (E.D. Pa. 2019); see C & K Petroleum

Prods., Inc. v. Equibank, 839 F.2d 188, 192 (3d Cir. 1988) (“Promissory estoppel would be

rendered meaningless if. . . detrimental reliance [was] based on the alleged existence of [] a broad

and vague implied promise.”) (citation omitted); Constar, Inc. v. Nat'l Distribution Ctrs., Inc., 101

F. Supp. 2d 319, 324 (E.D. Pa. 2000) (“An implied promise is insufficient to support a claim for

promissory estoppel.”). Rather, the promise must indicate the intent of the parties with

“reasonable certainty.” MRO Corp., 383 F. Supp. 3d at 423 (citing Ankerstjerne v. Schlumberger

Ltd., No. 03-3607, 2004 WL 1068806, at *5 (E.D. Pa. May 12, 2004), aff'd, 155 F. App’x 48 (3d

Cir. 2005)).

The Court concludes that Penn State’s statements that Ms. Cohn “was on track to graduate”

is not an express promise. Am. Compl. at § 186 (Doc. No. 3). Penn State’s update concerning

Ms. Cohn’s academic standing is not a promise, let alone an express promise. Informing a student

that they are currently on track to graduate does not equate to promising that student that she or he

will indeed graduate in the future. Therefore, the Court finds that Ms. Cohn’s amended complaint,

as alleged, fails to plead a plausible promissory estoppel claim.”

9 Because the Court dismisses Ms. Cohn’s contract and promissory estoppel claims, the Court does

not address Penn State’s alternative argument that Ms. Cohn failed to properly plead damages relating to

these claims.

22

V. Penn State’s Failure to Specify Declaratory Relief Argument

Finally, Penn State moves to dismiss Ms. Cohn’s claims requesting declaratory relief. The

counts asserting Ms. Cohn’s § 504, ADA, breach of contract, and promissory estoppel claims all

include demands for “declaratory judgment” without stating what in particular Ms. Cohn wishes

to have the Court declare. Because the Court dismisses Ms. Cohn’s breach of contract, promissory

estoppel, and Title III claims, it instead focuses on Ms. Cohn’s request for declaratory judgment

contained within the counts setting forth her § 504 and Title II claims. In addition to requesting

declaratory judgments, Ms. Cohn also requests all remedies available under § 504 of the

Rehabilitation Act and the ADA “including but not limited to, damages as would fully compensate

Ms. Cohn under the [applicable statute]; equitable relief, including removal from her academic

record of the below-satisfactory grades that she received because of [Penn State’s] violations,

recognition of all course credits that she has obtained thus far, and discharge of her student loans;

attorney’s fees and litigation costs; and all other such relief that this Court deems appropriate.”

Am. Compl. at F§ 135, 154.

Penn State’s argument does not assert that the facts set forth in Ms. Cohn’s amended

complaint could never afford a grant of declaratory judgment. Rather, it takes issue with the nature

of the declaratory relief Ms. Cohn requests. The Court rejects Penn State’s argument that “ascribes

a breadth to the Supreme Court’s Twombly and Iqbal decisions that is not warranted by the

language of those cases or, in fact, Federal Rule of Civil Procedure 8(a) itself.” Jones v. Francis,

No. 13-4562, 2013 WL 5603848, at *2 (D.N.J. Oct. 11, 2013). Jones v. Francis, No. 13-4562,

2013 WL 5603848 (D.N.J. Oct. 11, 2013), a case where the defendants similarly moved to dismiss

a punitive damages demand in the plaintiff's complaint under Rule 12(b)(6), is particularly

instructive. Jd. at *2. In rejecting the defendants’ argument, that Court explained:

23.

As demonstrated in the standard of review section that accompanies

this and every other opinion on a Rule 12(b)(6) motion, the

“plausibility” pleading regime addresses the types of facts a plaintiff

must allege to make out a cause of action, not the types of damages

the alleged cause of action may eventually warrant. Indeed, nothing

in Twombly, Iqbal, or their progeny refers to pleading requirements

for damages requests at all; instead, the cases themselves analyze

the well-pleaded facts exclusively in the context of the elements of

the alleged cause of action. See /qbal, 556 U.S. at 680, 687 (“Rule

8 does not empower respondent to plead the bare elements of his

cause of action [for invidious discrimination] . . . and expect his

complaint to survive a motion to dismiss.”); see also Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (‘a court must ... look[ ]

at the well-pleaded components of the complaint and evaluat[e]

whether all of the elements [a plaintiff must plead to state a claim]

are sufficiently alleged”). In sum, once a civil complaint shows a

claim to be “facially plausible,” Fowler v. UPMC Shadyside, 578

F.3d 203, 210 (3d Cir. 2009), nothing in Rule 8 or its judicial gloss

suggests, let alone requires, that this Court scrutinize the damages

requested by plaintiff as redress for that claim. .. .

Were the Court to accept Defendants’ argument, every request for

damages, including standard fare like attorneys’ fees or “such other

relief as the Court may deem proper,” . . . could be attacked at the

motion to dismiss stage, on the theory that the facts alleged did not

support a claim for such a remedy. Requests for this type of relief,

while boilerplate, embody a central tenet of notice pleading under

the federal rules, even post Twombly and Jqgbal—once a plaintiff

plausibly states his cause of action, subsequent discovery may reveal

facts that bring to light previously unknown but nevertheless

appropriate redress.

Id. at *2, *2 n.3. The same assessment applies here. As noted, Penn State challenges the

“unspecified” nature of the declaratory judgmert sought, not a purported failure to allege sufficient

facts that could support a grant of declaratory relief. Def.’s Mem. in Supp. Mot. to Dismiss at 26-

27 (Doc. No. 5-2). Absent a challenge to the sufficiency of allegations to support such relief, the

Court rejects Penn State’s invitation to dissect Ms. Cohn’s requested relief.

CONCLUSION

For the foregoing reasons, Penn State’s motion to dismiss is granted in part and denied in

part. In sum, the Court dismisses Ms. Cohn’s claims asserting a violation of Title III of the ADA,

24

breach of contract, and promissory estoppel. Mis. Cohn’s claims alleging violations of Title II of

the ADA and § 504 of the Rehabilitation Act and misrepresentation survive. An appropriate order,

which recognizes that Ms. Cohn may endeavor to amend her pleadings,'° follows.

BY THE COURT:

GENE E.K. PRATTER

UNITEDSTATES DISTRICT JUDGE

10 If Ms. Cohn chooses to amend her pleadings, an “amended complaint supersedes the [preceding

complaint] and renders [the preceding complaint] of no legal effect, unless the amended complaint

specifically refers to or adopts the earlier pleading.” West Run Student Housing Assocs., LLC v. Huntington

Nat’! Bank, 712 F.3d 165, 171 (3d Cir. 2013) (internal quotations omitted).