By Matthew Santoni

Law360 (June 28, 2021, 4:49 PM EDT) -- Carnegie Mellon University's course catalog listing the times, classrooms and professors for each class were part of the university's promise that education would take place in-person and on-campus — a promise broken when courses shifted online due to the pandemic, counsel for students seeking refunds told a Pennsylvania federal judge Monday.

In arguments over Carnegie Mellon's motion to dismiss the proposed class action, attorney Gary Lynch of Carlson Lynch LLP said this case was different from other suits that were dismissed against the University of Pittsburgh or Temple University because it included Carnegie Mellon's course catalog, which he said supported students' claims that there were explicit and implicit promises of in-person class.

"The course catalog says classes will happen at this time, at this location, in that room. ... To provide a classroom and provide a professor is a fundamental expectation — this is how higher education has always happened," Lynch told U.S. District Judge Robert J. Colville. "This case is distinct from the Pitt complaint because we have a little more meat on the bones, a little more specificity."

Carnegie Mellon's attorney, Jeffrey Weimer of Reed Smith LLP, said there was no explicit contractual promise that the university would provide in-person class, while the emergency closure and class alteration policies within the course catalog permitted the school to move classes online because of the COVID-19 pandemic, and he urged Judge Colville to dismiss the case. He said the argument that there was an "implied" contract for in-person instruction contradicted Pennsylvania contract law, which gives more weight to the written contract.

"The course catalog and policies spell out how tuition should be calculated ... it makes no mention of the mode of delivery," Weimer said. "You can't unilaterally add terms to a written contract by inserting implied theories on the same conduct. The words on the page control."

Plaintiffs Abigale Pfingsten and Anokhy Desai had sued Carnegie Mellon for a refund of tuition and fees in May 2020, arguing that taking online classes from home didn't give them the full benefit of what they'd paid for, including an on-campus learning experience and access to facilities paid for with their fees.

But similar lawsuits against Pitt, Temple and the University of Pennsylvania had all been thrown out on the grounds that those schools never made a promise of in-person education in the documents that made up their written contracts with students. Lynch sought to avoid a similar fate for the Carnegie Mellon students by pointing to more specific language the university had used.

U.S. District Judge William S. Stickman IV's ruling against the students in the Pitt case had left open the possibility that there could be an implied contract, Lynch said. In Carnegie Mellon's case, he said, there was more to both the written documents and the implied contract.

In addition to the course catalog, syllabuses and websites bragging about the benefits of learning on-campus, Carnegie Mellon had an additional policy before the pandemic that had required first-year students to live on-campus, Lynch said. The emergency policies and class alteration policies the university pointed to were tailored more to snow days and power outages, not an 18-month closure of the campus that the students paid the full rate for.

"Nobody's saying the school can't close in an emergency; it's the failure to give back the money that's the problem," Lynch said. "It's 25% of these students' college experience that's gone by."

Judge Colville pressed Lynch and Weimer on where to draw the line over a "broken promise," asking whether it would matter if the university had promised weekly ice-cream socials and only delivered biweekly ones, if it had touted a particular faculty member who then left or if it had cut an entire educational program after students enrolled in it. Lynch said he believed his complaint got the case to where a jury should decide if what Carnegie Mellon delivered was different than what was promised, but Weimer said the contracts were clear and the case could be dismissed at this point.

"The university didn't close. The university kept teaching, albeit in a different modality, and the university worked hard to make sure students got their credits and stayed on track to graduation," Weimer said. "There's nothing in what they've pointed to ... where we, the university, promised in-person learning under all circumstances. The terms of the express contract say we were permitted to respond to the pandemic the way we did."

Judge Colville said he would take Monday's arguments under advisement.

The students are represented by Gary F. Lynch, Edward W. Ciolko and Kelly K. Iverson of Carlson Lynch LLP and Philip L. Fraietta, Frederick J. Klorczyk III and Sarah N. Westcot of Bursor & Fisher PA.

Carnegie Mellon is represented by Jeffrey Weimer, Catherine S. Ryan and Daniel I. Booker of Reed Smith LLP.

The case is Pfingsten et al. v. Carnegie Mellon University, case number 2:20-cv-00716, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Alex Hubbard.

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