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HomeMy WebLinkAbout09-3064Benjamin D. Andreozzi P,O. BOX 554 CAMP HILL, PA 17001 717-926-1192 Ben@midstatelaw.com VINCENT BARROS, Plaintiff, VS. DICKINSON COLLEGE Defendant. ATTORNEY FOR PLAINTIFF THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA NO: 0I-30 6Y e- N -l CIVIL ACTION'- EQUITY ORDER. AND NOW, this jj_ day of M o Y , 2009, upon consideration of Plaintiffs Motion for Preliminary Injunction it is ORDERED that a hearing on Plaintiff's Motion shall be held on May 9` , 2009 in Courtroom y , at rc-, a am/pm at the Cumberland County Courthouse. P,,, a,I /'r .+ ?.v ?r -Y !,r r lA, ,.1 i ^ er u? ?e bc. J. RLED-4DFFICE OF THE PrCR42" OTARY 2009 MAY 14 Pik 1: 42 CLia cif vTY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VINCENT BARROS, CIVIL ACTION Plaintiff No. 2009-3064 V. DICKINSON COLLEGE, Defendant ORDER L 4? AND NOW, thisi day of May, 2009, upon agreement of the parties, the Court Orders as follows: 1. Defendant Dickinson College agrees to allow Plaintiff to resume the courses and coursework underway as of the date of his expulsion on April 25, 2009. 2. Defendant Dickinson College agrees to make reasonable efforts to provide Plaintiff with the opportunity to complete the coursework, if possible, before June 12, 2009. 3. Plaintiff agrees that the sanction of expulsion, and its attendant requirement that Plaintiff not be present on Dickinson's campus, remains in effect unless or until further order of this Court regarding same. 4. The parties agree that should Plaintiff satisfactorily complete any or all of his coursework, the College will not assign grades or credit for the courses or confer any degree that might otherwise be considered to have been earned pending further order of this Court affecting same. 5. No determination is made by the Court on the merits of Plaintiff's Motion for Preliminary Injunction and Defendant Dickinson College specifically denies Plaintiffs allegations. 6. A Hearing on the merits of Plaintiffs Complaint is set before this Court on the 12th day of June 2009 at _ ?ia, r,• . IT IS SO ORDERED: By the Court: FILED- LED-C",' CE OF TNc P) C'THN,NN.QTARY 2009 Mrs 11 18 PH 1: 5 6 JN! l C4CIf Sheriffs Office of Cumberland County R Thomas Kline Arta at C""Ibe Edward L Schorpp Sheriff ' Solicitor Ronny RAnderson -? Jody S Smith Chief Deputy OFFZE CF THE SHERIFF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 05/22/2009 12:05 P - Dennis Fry, Deputy Sheriff, who being duly sworn according to law, states that on May 22, 2009 at 205 hours, he served a true copy of the within Complaint and Notice, upon the within named defenda t, to wit: Dickinson College, by making known unto Dana Stevens Seaduto, General Counsel, at Bldg. OI West, Carlisle, Cumberland County, Pennsylvania, 17013 its contents and at the same time handing o her personally the said true and correct copy of the same. SHERIFF COST: May 22, 2009 SO ANSWERS, O R THOMAS KLINE, SHERIFF Deputy eri f 2009-3064 Vincent B v Dickinson College r} 7 CID VINCENT BARROS, Plaintiff V. DICKINSON COLLEGE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION--EQUITY NO. 2009-3064 DICKINSON COLLEGE'S ANSWER WITH NEW MATTER Dickinson College ("Dickinson" or the "College"), by and through its attorneys, McNees Wallace and Nurick LLC, hereby states the following: 1. Admitted, upon information and belief. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. It is admitted that on April 22, 2009, Barros was formally informed via letter, hand delivered to him by Leonard Brown, that the College had received reports that he had violated its Community Standards. It is specifically denied, however, that the April 22, 2009 letter was the first information that Barros had in this regard. Previously, on or about April 18, 2009, Barros met with members of the College's Department of Public Safety and discussed reports of his conduct. Later that same day, a memo was sent to Plaintiff advising him that he was being placed on interim suspension pending a judicial hearing. Thereafter, on or about April 20, 2009, Barros was informed via email that he had violated the Community Standards and that more information would be forthcoming. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted. COUNTI BREACH OF CONTRACT 10. Admitted. 11. It is admitted that Dickinson complies with its own policies and procedures, including those set forth in the Community Standards. It is also admitted that in Subparagraphs a, b, and c, Plaintiff correctly quotes some portions of the Community Standards. By way of further response, the Community Standards speak for themselves. 12. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is specifically denied that Dickinson failed to fulfill its obligations under the Community Standards and it is further specifically denied that Dickinson acted in contradiction to those standards. 12(a). It is admitted that one of the victims was permitted to provide testimony via speaker phone from outside of the hearing room. It should be noted, however, that the victim did originally enter the hearing room and then was permitted to provide testimony via speaker phone from outside the hearing room; everyone, including Barros, was able to hear her testimony. By way of further response, proceeding in this manner was not a violation of the College's Community Standards. 12(b). Denied. Barros had the opportunity to, and did, question the victims by providing his questions to the hearing panel, who then questioned the victims. By way of further response, proceeding in this manner was not a violation of the College's Community Standards. 12(c). Denied. The hearing panel appropriately questioned the victims, including questions provided by Barros. 12(d). Denied as stated. It is admitted that the hearing commenced approximately 48 hours from the time Barros was notified of the date and time of the hearing. It is denied that proceeding at this date and time violated the College's Community Standards or denied Barros a fair hearing. By way of further response, in an email communication on April 20, 2009, Barros indicated that he wanted to have the hearing as soon as possible, and prompt scheduling of the hearing was done, in part, to accommodate Barros' request. Moreover, as set forth in the April 22 letter, Barros was given the opportunity to ask for a rescheduling of the hearing, and he did not ask for such a rescheduling. 12(e). Denied as stated. Of five witnesses called by the College to provide information, the identity of four had been disclosed to Plaintiff at least two (2) days before the hearing. One witness was identified to Plaintiff on the night before the hearing, and such notice was provided promptly after the person was identified to the College as a witness for the hearing. The only document that was not provided to Plaintiff two days before the hearing was Victim 1's medical records; they were brought to the hearing by Victim 1 and copies were made for the hearing panel and Barros at the conclusion of the hearing. The College did not have the document before the hearing and could not have provided it to Barros. Moreover, it should be noted that Plaintiffs witnesses were not identified until the day before the hearing and Plaintiff offered four pieces of information at the hearing, including a statement from a witness, that he had not disclosed prior to the hearing. Such disclosures by Plaintiff were not considered untimely and the College accepted all such information for consideration. 12(f). Denied. Barros fails to identify any specific "relevant evidence," and the College cannot adequately respond. To the best of the College's knowledge, relevant information sufficient to allow the panel to form an informed conclusion was offered to, and considered by, the panel. 12(g). Denied. The hearing panel listened to and considered relevant information and properly weighed the evidence presented in arriving at its decision. 13. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. Initially, the relevant issue is whether the College's process was fundamentally fair. It is specifically denied that Dickinson's process was not fundamentally fair. To the contrary, Dickinson provided Barros with disciplinary proceedings that were fundamentally fair and in accordance with its written procedures, as found in the Community Standards. 13(a). Denied as stated. It is admitted that the case was considered under a "reasonable to conclude" burden of proof as set forth in the Community Standards. Using that burden of proof, the College abided by its own policies, which meet the standard of fundamental fairness applicable to private institutions of higher education. 13(b). It is admitted that the hearing panel considered two separate acts of misconduct (actually, three separate acts of misconduct) at the same hearing. By way of further response, the College abided by its own policies, which are in accordance with fundamental fairness in the setting of a private institution of higher education. 13(c). Denied. The answering averments of Subparagraph 12(d) above are incorporated herein by reference as though set forth at length. By way of further response, the Community Standards provide that decisions made by a hearing panel can be appealed by either party to an appeals panel within five (5) business days from the date of notification of the decision. Barros filed his appeal of the hearing panel's decision on April 28, 2009, only two business days after he received notification of the hearing panel's decision, thus depriving himself of additional time to prepare. The Community Standards also provide that, in cases where expulsion is the sanction recommended by the hearing panel, the responding party may appeal the decision of the appeals panel to the President within five (5) business days from the date of notification of the decision by the appeals panel. Barros received notification of the appeals panel's decision on May 4, 2009, and filed his appeal of the appeals panel's decision on May 11, 2009, thus utilizing the full five business days as allotted by the Community Standards. By way of further response, the College abided by its own policies, which meet the standard of fundamental fairness applicable to private institutions of higher education. 13(d). Denied. No member of the hearing panel had a "close relationship" with either alleged victim. By way of further response, the College abided by its own policies, which meet the standard of fundamental fairness applicable to private institutions of higher education. 13(e). Denied. The Community Standards are clear and appropriate and Barros had adequate opportunity to formulate his response to the College's accusations. By way of further response, the College abided by its own policies, which meet the standard of fundamental fairness applicable to private institutions of higher education. 13(f). Denied. A hearing was conducted in accordance with the Community Standards: student activity on campus around the issue of sexual violence was measured activity; did not constitute an "uproar;" and did not influence the hearing panel or the outcome of the hearing. By way of further response, the College abided by its own policies, which meet the standard of fundamental fairness applicable to private institutions of higher education. 14. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Barros did not have a fundamentally fair proceeding. To the contrary, Dickinson provided Barros with a fundamentally fair proceeding that included two appellate reviews of the determination of the hearing panel. As a result of the fair determination of the facts as determined in the disciplinary proceeding, and upheld upon two reviews, Barros was expelled from Dickinson College. WHEREFORE, Defendant Dickinson College requests that this Court grant judgment in its favor and against Plaintiff Vincent Barros, together with costs and any other relief that this Court deems just. COUNT II UNJUST ENRICHMENT 15. Denied as stated. It is admitted that Barros paid tuition for the Spring, 2009 semester. It is denied, however, that payment entitled him to take courses, receive credits or graduate. All such privileges were dependent on Barros' satisfactory completion of coursework, and his compliance with policies of the College, the violation of which resulted in his expulsion. 16. It is admitted that, as a result of his expulsion, Barros did not receive credit for the courses taken in the Spring, 2009 semester, nor was he permitted to graduate. By way of further response, Barros has received credit for all of the courses he has taken in the first three years of his enrollment at Dickinson, as well as for the first semester of the 2008-2009 school year. All such courses were completed while Barros was a student in good standing. The answering averments of Paragraph 15 above are incorporated herein by reference as though set forth at length. 17. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dickinson's retention of Barros' funds paid for the Spring 2009 semester is inequitable. To the contrary, Barros has received credit for all of the courses completed before the Spring 2009 semester. Moreover, Barros attended classes and had all the advantages of course participation up to the date of his expulsion. The reason for his failure to complete the Spring 2009 semester is not the failure of the College's conduct system but, rather, is the result of Barros' conduct that led to his expulsion before the semester was completed. It is also denied that there was a lack of evidence concerning Barros' acts of misconduct. To the contrary, the hearing panel considered relevant documents and information, and heard testimony from several witnesses and, based thereon, was able to reasonably conclude, based upon the available information, that Barros violated the Community Standards. The hearing panel's determination was reviewed twice internally and was upheld on each occasion. WHEREFORE, Defendant Dickinson College requests that this Court grant judgment in its favor and against Plaintiff Vincent Barros, together with costs and any other relief that this Court deems just. NEW MATTER 18. Dickinson incorporates herein by reference Paragraphs 1-17 above of its Answer with New Matter. 19. Plaintiff has failed to state a claim upon which relief can be granted against Dickinson for breach of contract. 20. Plaintiff has failed to state a claim upon which relief can be granted against Dickinson for unjust enrichment. 21. Plaintiff has failed to state a claim upon which relief can be granted against Dickinson for preliminary and permanent injunction. 22. Plaintiffs claims are barred, in whole or in part, by the doctrine of unclean hands. WHEREFORE, Defendant Dickinson College requests that this Court grant judgment in its favor and against Plaintiff Vincent Barros, together with costs and any other relief that this Court deems just. By C""6an6a..16e? Dana Scaduto, General Counsel Dickinson College 1. D. No. 41260 West College Building P.O. Box 1773 College & Louther Streets Carlisle, PA 17013 McNEES WALLACE & NURICK LLC Elizabeth A. Maguschak I.D. No. 39853 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: June 6' , 2009 Attorneys for Defendant VERIFICATION Subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities, I hereby certify that I am authorized to make this verification on behalf of Dickinson College, that I have read the foregoing document, and that the facts set forth therein are true and correct to the best of my knowledge or information and belief. DICKINSON COLLEGE By. Leonard Brown Associate Dean of Students Dated: June , 2009 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer With New Matter was served by United States first-class mail upon the following: Benjamin D. Andreozzi, Esquire P.O. Box 554 Camp Hill, PA 17001 (Attorneys for Plaintiff) Dana Scaduto General Counsel Dickinson College Date: June 5, 2009 VERIFICAT1oN Subiect to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities, I hereby certify that I am authorized to make this vitrification on behalf of Dickinson College, that I have read the foregoing document, a id that the fads set forth therein are true and correct to the best of my knowledge or information and belief- DICKINSON COLLI=GE Tay ?L Leonard Brown Associate D -)an of Students Dated: June 5 , 2009 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by United States first-class mail upon the following: Benjamin D. Andreozzi, Esquire P.O. Box 554 Camp Hill, PA 17001 (Attorneys for Plaintiff) C --L a". Dana Scaduto General Counsel Dickinson College Date: June 5, 2009 RLF!}-OFFICE OF T?E P CTS CNOTARY 2009 JUN -5 PH 2: 45 pE?'" rSt..?'fN ! $,,t'V4r?? ? `4th VINCENT BARROS, Plaintiff V. DICKINSON COLLEGE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION--EQUITY NO. 2009-3064 DEFENDANT'S RESPONSE TO MOTION FOR PRELIMINARY INJUNCTION Dickinson College ("Dickinson" or the "College"), by and through its attorneys, McNees Wallace and Nurick LLC, hereby states the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is specifically denied that Dickinson's decision to expel Barros was in violation of procedures set forth in its Community Standards and/or was contrary to fundamental fairness. On the contrary, Dickinson complied with the procedures set forth in its Community Standards, and the hearing process was fundamentally fair. 6. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. The College denies that Barros will suffer immediate and irreparable harm as a result of his expulsion from the College. By way of further response, however, upon agreement of the parties, this Court issued an Order dated U May 18, 2009 that provides Barros with a means to protect his ability to graduate depending on further developments in these proceedings and pending further Order of this Court. 7. Denied. The averments of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the averments of this paragraph are denied. It is denied that Dickinson will not have suffered harm if Barros were permitted to graduate. By way of further response, however, upon agreement of the parties, this Court issued an Order dated May 18, 2009 that provides Barros with a means to protect his ability to graduate depending on further developments in these proceedings and pending further Order of this Court. WHEREFORE, Defendant Dickinson College requests that this Court grant judgment in its favor and against Plaintiff Vincent Barros, together with costs and any other relief that this Court deems just. By` rJa.?o` Dana Scaduto, General Counsel Dickinson College I.D. No. 41260 West College Building P.O. Box 1773 College & Louther Streets Carlisle, PA 17013 McNEES WALLACE & NURICK LLC Elizabeth A. Maguschak I.D. No. 39853 Kimberly A. Selemba I.D. No. 93535 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Date: June .6' , 2009 Attorneys for Defendant 2 VERIFICATION Subject to the penalties of 18 Pa. C.S. §4904, relating t3 unswom falsification to authorities, I hereby certify that I am authorized to make this verification on behalf of Dickinson College, that I have read the foregoing document, a:id that the facts set forth therein are true and correct to the beat of my knowledge or infixmation and belief. DICKINSON COLLEGE Leonard Brown Associate D Ban of Students BY. Dated: June 5 , 2009 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served by United States first-class mail upon the following: Benjamin D. Andreozzi, Esquire P.O. Box 554 Camp Hill, PA 17001 (Attorneys for Plaintiff) Dana Scaduto General Counsel Dickinson College Date: June 5, 2009 RZD-?FCE OF THE PR'}t' , I , OTARY 2009 JUN -5 PH 2: 45 PEI NNSYLir'ANLIA VINCENT BARROS, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW DICKINSON COLLEGE, Defendant NO. 09-3064 CIVIL TERM ORDER OF COURT AND NOW, this 9t` day of June, 2009, on joint request of counsel, the hearing set for June 12, 2009, is continued. A new hearing date will be requested by counsel when ready. BY THE COURT, 04 Z4 A. Hess, J. /Benjamin D. Andreozzi, Esq. P.O. Box 554 Camp Hill, PA 17001 /Attorney for Plaintiff ,//Dana Scaduto, Esq. Dickinson College West College Building P.O. Box 1773 College & Louther Street Carlisle, PA 17013 Elizabeth A. Maguschak, Esq. Kimberly A. Selemba, Esq. 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 Attorneys for Defendant :rc Co I ks /ria L C, FILED-OFFI Z OF THE PRIDT_ ONTO 'ARY 2009 JUN 10 AM 11: 3 9 p I-- I ^ I? A