HomeMy WebLinkAbout13-3681 Supreme Co_ >...", Pennsylvania
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COUP :COI a u, leas For Prothonotary Use Only.
Gl< ilwer het 1
10 County Docket No:
Cu nand
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Commencement of Action:
S x Complaint D Writ of Summons [3 Petition
E C Transfer from Another Jurisdiction Declaration of Taking
C Lead Plaintiff's Name: Lead Defendant's Name:
, Kelsi Weidner McCann School of Business, Inc.
Dollar Amount Requested: within arbitration limits
I Are money damages requested? Yes No
O 1 (check one) Eloutside arbitration limits
N Is this a Class Action Suit? [H] Yes E3 No Is this an MDJAppeal? Q Yes 0 No
A Name of Plaintiff /Appellant's Attorney: Beniamin D. Andreozzi, Esquire
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C E3 Other: Employment Dispute: Other Q Zoning Board
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Updated 11112011
THr
g' 13,.i1 IN � � �� 6t: G9
Benjamin D. Andreozzi
Attorney ID 989271 CUB' MERL A D
Heather E. Verchick CO UN T Y
Attorney ID #201310 P ENNS YLVA hilA
ANDREOZZI & ASSOCIATES, P.C.
215 Pine St., Ste. 200
Harrisburg, PA 17101
717 -525 -9124
Ben @midstatelaw.com
Attorney for Plaintiff
KELSI WEIDNER
Plaintiff
IN THE COURT OF COMMON PLEAS
vs. CUMBERLAND COUNTY, PENNSYLVANIA
MCCANN SCHOOL OF BUSINESS,
INC. No. I 1 3- 3W 1
and
DELTA CAREER EDUCATION
CORPORATION
Defendants CLASS ACTION
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE
CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN
TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY
ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND
FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO
SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED
AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY
CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED
BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS
IMPORTANT TOYOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
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am4 1 b 3 . 75�od,
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CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1- 800 - 990 -9108
717- 249 -3166
Benjamin D. Andreozzi
Attorney ID #89271
Heather E. Verchick
Attorney ID #201310
ANDREOZZI & ASSOCIATES, P.C.
215 Pine St., Ste. 200
Harrisburg, PA 17101
717 -525 -9124
Ben @midstatelaw.com
Attorney for Plaintiff
KELSI WEIDNER
Plaintiff
IN THE COURT OF COMMON PLEAS
VS. CUMBERLAND COUNTY, PENNSYLVANIA
MCCANN SCHOOL OF BUSINESS,
INC. No.
and
DELTA CAREER EDUCATION
CORPORATION
Defendants CLASS ACTION
CLASS ACTION COMPLAINT
Plaintiff, Kelsi Weidner ( "Plaintiff') brings this class action lawsuit against Defendants,
McCann School of Business, Inc. ( "McCann ") and Delta Career Education Corporation
( "Delta "). The following allegations are based on personal knowledge as to Plaintiffs own
experiences, and are made on information and belief as to the experiences of others.
THE PARTIES
1. Plaintiff Kelsi Weidner is an adult individual. Her mailing address is c/o
Andreozzi & Associates, P.C., 215 Pine Street, Suite 200, Harrisburg, PA 17101. She enrolled
in and paid for Defendants' educational program to seek and obtain certification as a Medical
Lab Technician.
2. Defendant McCann is a Pennsylvania corporation with a place of business located
at 346 York Road, Carlisle, PA 17013.
3. Defendant Delta is a Virginia Corporation with a business mailing address of
4525 Columbus Street, Suite 101, Virginia Beach, Virginia 23462.
. 4. During all relevant times, Delta owned and/or operated educational institutions
that offered classes and degrees to students in various fields of study.
5. During all relevant times, McCann was an education institution that offered
classes and degrees to students in various fields of study
6. It is believed, and therefore averred that McCann was a subsidiary and/or affiliate
of Delta, and thus, the Defendants will be referred to collectively as McCann.
JURISDICTION AND VENUE
7. This Court has personal jurisdiction over Defendants since Defendant Delta and
McCann conduct continuous business within Pennsylvania.
8. Venue in this Court is proper under Pennsylvania Rule of Civil Procedure 1006
and 2179 because Delta and McCann conduct continuous business within Cumberland County,
and the actions and inactions by Delta and McCann with respect to the named Plaintiff occurred
in Cumberland County.
FACTS PERTAINING TO THE CLASS MEMBERS' EDUCATION AT MCCANN
9. McCann is a private for - profit educational institution that offers classes and
degrees to students in various fields of study, including, but not limited to the field and major of
medical lab technician ( "the Lab Tech Program ").
10. McCann has several campuses in Pennsylvania that offer the Lab Tech Program,
including, but not limited to the Allentown campus, the Carlisle campus, the Dickson City
campus, the Hazleton campus, the Pottsville campus, and the Wilkes -Barre campus.
11. It is believed, and therefore averred that McCann solicited students to enroll in the
Lab Tech Program at each of these campuses by advertising on their website and through various
brochures, pamphlets, catalogs and other advertisements.
12. Plaintiff and other class members sought additional information about the Lab
Tech Program from McCann as a result of these advertisements and solicitations.
13. Prior to enrollment, representatives of McCann advised the class members who
enrolled in the Lab Tech Program that, once they completed this Program, the class members
would be able to sit for the American Society for Clinical Pathologist ( "ASCP ") certification
exam, which is required before the class members can become certified medical lab technicians.
14. Representatives of McCann advised the class members that they would enjoy
higher salaries and better job opportunities after completing the Lab Tech Program and passing
the required certification exam.
15. After speaking with representatives of McCann about the Lab Tech Program, and
justifiably relying on their statements that it was accredited by the proper agency and the class
members would be able to sit for their certification exams, class members enrolled in the Lab
Tech Program.
16. The class members who enrolled in the Lab Tech Program later discovered that
the Lab Tech Program was, in fact NOT accredited by the National Accreditation Agency for
Clinical Laboratory Sciences ( "NAACLS "), and the class members were therefore not able to sit
for the ASCP certification exam.
17. Prior to enrolling, class members were never advised by McCann that McCann's
Lab Tech Program might not be NAACLS accredited or that they might not be able to sit for the
certification exam.
18. The education that they received at McCann has no value, and the thousands upon
thousands of dollars that they spent on education expenses were wasted.
19. In order for the class members to be able to sit for the ASCP certification exam,
they will likely have to start from square one and enroll in a properly accredited institution and
pay for and retake many classes that they previously took at McCann.
20. It is believed, and therefore averred that the Lab Tech Program at each of the
above -named campuses have still failed to obtain NAACLS accreditation.
FACTS PERTAINING TO THE NAMED PLAINTIFF
21. Plaintiff Kelsi Weidner enrolled in the Lab Tech Program in February of 2012.
22. In December of 2011, she spoke with a representative of McCann about enrolling
in the Lab Tech Program.
23. McCann's representative advised Plaintiff that she would not have a problem
getting a job, and would just have to take the certification exam after she graduated from
McCann.
24. Plaintiff was also advised that McCann would help her take the certification exam
and study for it.
CLASS ACTION ALLEGATIONS
25. This action involves McCann's solicitation to entice potential students to sign up
for the Lab Tech Program at various campuses throughout Pennsylvania even though McCann
knew or should have known that it did not have the accreditations necessary for the students to
sit for the proper certification exam.
26. This action may be properly maintained as a class action pursuant to Pennsylvania
Rules of Civil Procedure 1702, 1708, and 1709.
27. The class is defined as and includes all students who enrolled in the MLT
program at any McCann campus from 2009 through the present.
28. The class is so numerous that joinder of all individual members is impracticable.
29. McCann's conduct with respect to Plaintiff and the class raises questions of law or
fact that are common to the entire class.
30. The questions of law or fact that are common to the entire class include: whether
or not the MLT program was accredited by NAACLS such that class members were eligible to
sit for the ASCP certification exam; whether or not McCann advertised that the MLT program
was accredited by NAACLS when it was not; whether or not McCann should have known that it
was advertising an accredited program when, in fact, its program was not accredited; whether
McCann is capable, under the RICO laws of forming an enterprise under such laws; whether
McCann used the instrumentalities of wire and mail in falsely representing to its prospective and
existing students that its program is accredited; whether McCann's uniform conduct harmed the
class members and, if so, the nature of such harm; and whether a common methodology exists to
calculate damages that were sustained by the class members.
31. Plaintiffs claims and defenses are typical of the claims or defenses of the entire
class because all claims are based on the same legal theories and remedies. Furthermore,
Plaintiffs assertions that McCann breached a material term of its contract with her and that she is
protected from misrepresentation under the Pennsylvania Consumer Protection Law is
sufficiently aligned with the interests of the class as a whole so that pursuit of Plaintiffs own
interests will benefit the class as a whole.
32. Plaintiff will fairly and adequately assert and protect the interests of the class
because (a) Plaintiff is represented by experienced counsel who is well - prepared to vigorously
and competently litigate this action on behalf of the class; (b) Plaintiff and her counsel are free of
any conflicts of interest that prevent them from pursuing this action on behalf of the class; and
(c) Plaintiff and her counsel have adequate financial resources to assure that the interests of the
class will not be harmed.
33. A class action provides a fair and efficient method for adjudication of the
controversy because:
a) Common questions of law and fact predominate over any questions
affecting Plaintiff or individual class members;
b) All class members are easily identifiable through McCann's records and
computer files, and no foreseeable difficulties in the management of this action as a class
action exists;
C) The monetary damages sought on behalf of the class are readily calculated
and attributable to class members;
d) Maintenance of the instant litigation as a class action protects against the
risks of inconsistent judgments that might result if individual class members were to
commence independent actions in various courts throughout Pennsylvania;
e) Because McCann conducts a substantial amount of business in
Cumberland County, and the cause of action with respect to the named Plaintiff arose in
Cumberland County, this Court is an appropriate forum for the litigation of the claims of
the entire class;
f) The complexities of the issues and the expense of litigating the separate
claims of individual class members weigh in favor of class certification; and
g) Because the damages sustained by individual class members are relatively
small compared to the resources of McCann and the costs of individual litigation, it is
impracticable and unrealistic for individual class members to independently pursue
litigation against McCann in order to vindicate their rights.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court certify this class
action, appoint Plaintiff as the class representative and undersigned counsel as class counsel, and
find in favor of the class and against Defendants and award compensatory damages in an amount
which exceeds the jurisdictional limit for arbitration in Cumberland County, grant injunctive
relief preventing defendants from continuing to advertise that its program is accredited, award
treble damages and attorney's fees and costs pursuant to the Pennsylvania Unfair Trade Practices
and Consumer Law and the Federal Racketeer Influenced and Corrupt Organizations Act, and
any such other relief as this Court deems fair and just.
COUNT
BREACH OF CONTRACT
34.1 Paragraphs 1 through 33 are fully incorporated as though set forth herein.
35. McCann purportedly offered the class members enrollment in an accredited
program that would allow the class members to sit for the certification exam to become a
certified Medical Lab Technician.
36. The class members accepted McCann's offer by enrolling in the MLT program
and paying tuition to McCann for this program.
37. As a result, the class members who enrolled in the Lab Tech Program entered into
a contract with McCann wherein the class members paid tuition to McCann to be eligible to take
various classes that would entitle the class members to obtain a degree as a Medical Lab
Technician and sit for the certification exam, which would provide them with better job
opportunities with higher salaries in their related field.
38. The representations that were made to the class members prior to enrolling in the
Lab Tech Program with respect to the Program's accreditation and the class members' ability to
sit for the relevant certification exam was a provision of the contract between the class members
and McCann.
39. Any and all advertising, including but not limited to websites, catalogs, brochures
and other advertisements that McCann made available to the class members to entice them to
enroll in the Lab Tech Program was also a provision of the contract between the class members
and McCann.
40. After enrolling in the Lab Tech Program, representatives of McCann continued to
assure the class members that the Lab Tech Program was properly accredited and would allow
the class members to become certified medical lab technicians after sitting for the ASCP
certification exam after graduating from McCann.
41. McCann's advertising, including but not limited to websites, catalogs, brochures
and other advertisements, also reiterated McCann's assertion that the Lab Tech Program was
properly accredited and would allow the class members to become certified medical lab
technicians after sitting for the ASCP certification exam after graduating from McCann.
42. McCann breached the contract with the class members in the Lab Tech Program
by providing them with a program that was not nationally accredited and did not allow the class
members the opportunity to sit for the ASCP certification exam upon graduation.
43. The class members' ability to sit for the ASCP certification exam upon graduation
from the Lab Tech Program was a material term of the contract with McCann.
44. McCann has no adequate justification for its breach of contract with the class
members who enrolled in the Lab Tech Program.
45. As a result of McCann's breach, the class members have suffered and continue to
suffer damages, which include, but are not limited to, costs related to enrolling in and attending
classes at McCann, loss of income opportunity, loss of earning capacity and other economic
losses.
WHEREFORE, Plaintiff, on behalf of themselves and the class, respectfully request that
this Honorable Court grant judgment in their favor and against Defendants, McCann School of
Business & Technology and Delta Education Career Corporation in an amount which exceeds
the jurisdictional limit for arbitration in the Court of Common Pleas of Cumberland County.
COUNT I1
VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER
PROTECTION LAWS, 73 P.S. 4201 -1, ET SEQ.
46. Paragraphs 1 through 45 are fully incorporated as if set forth herein.
47. Each of the class members' purchase of educational services from McCann was a
transaction in trade or commerce as defined by 73 P.S. §201 -2(3) of the Pennsylvania Unfair
Trade Practices and Consumer Protection Laws ( "CPL ").
48. Plaintiff purchased the educational services for personal, family, and household
use as defined by the CPL.
49. McCann is a "Person" as the same is defined in the CPL.
50. McCann violated the CPL by committing various unfair, deceptive, and
misleading acts and practices in connection with the sale of educational services to the class
members at all times during the class period, including, but not limited to:
a. Representing that McCann's Lab Tech Program was nationally accredited;
b. Representing that upon successful completion of McCann's Lab Tech
Program, the class members would be eligible to sit for the ASCP certification exam,
which was necessary before becoming a certified lab technician;
C. Misrepresenting the nature and qualifications of McCann's Lab Tech
Program;
d. Making the material misrepresentations that were described in prior
paragraphs of this Complaint;
e. Charging and collecting fees, costs, expenses and tuition from class
members for a lab technician program that was not nationally accredited.
51. The class members relied upon the various warranties and representations of
McCann in entering their contract with McCann to enter the Lab Tech Program and in
continuing to attend classes and make payments to McCann for the Lab Tech Program.
52. McCann's unfair and deceptive conduct:
a. Caused likelihood of confusion or of misunderstanding as to the source,
sponsorship, approval or certification of McCann's Lab Tech Program;
b. Caused likelihood of confusion or of misunderstanding as to McCann's
certification and approval by another;
C. Misrepresented that McCann's Lab Tech Program had sponsorship,
approval, characteristics, benefits or quantities that it did not have;
d. Misrepresented that McCann's Lab Tech Program was of a particular
standard quality or grade;
e. Failed to comply with the terms of a written guarantee or warranty given
to the class members at, prior to, or after the contract was made; and
f. Engaged in deceptive conduct which created a likelihood of confusion and
misunderstanding - all within the meaning of Section 3 of the CPL and Sections 2 (4)(ii),
(iii), (v), (vii), (xiv) and (xxi) of the CPL.
53. As a result of McCann's misrepresentations, the class members have suffered and
continue to suffer damages, which include, but are not limited to, costs related to enrolling in and
attending classes at McCann, loss of income opportunity, loss of earning capacity and other
economic losses.
54. Given McCann's deceptive sale of educational services, the class members who
enrolled in the Lab Tech Program are entitled to treble damages, costs and attorney's fees under
section 9.2 of the CPL.
WHEREFORE, Plaintiff, on behalf of themselves and the class, respectfully request that
this Honorable Court grant judgment in their favor and against Defendants, McCann School of
Business & Technology and Delta Education Career Corporation in an amount which exceeds
the jurisdictional limit for arbitration in the Court of Common Pleas of Cumberland County plus
costs, attorney's fees, and treble damages.
COUNT III
VIOLATION OF THE FEDERAL RACKETEER INFLUENCED AND CORRUPT
ORGANIZATIONS ACT, 18 U.S.C. &41962(C) AND 1962(D)
55. Paragraphs 1 through 54 are fully incorporated as if set forth herein.
56. At all times during the class period, McCann was a "person(s)" within the
meaning of 18 U.S.C. §1961(d) as each of the Defendants was "capable of holding a legal or
beneficial interest in property."
57. At all times during the class period, McCann collectively constituted an
"enterprise" within the meaning of 18 U.S.C. §1961(4).
58. At all times during the class period, McCann conducted or participated, directly or
indirectly, in the conduct of the Enterprise's affairs through a pattern of racketeering activity in
violation of 18 U.S.C. § 1962(c).
59. McCann's multiple predicate acts of racketeering, include mail and wire fraud, in
violation of 18 U.S.C. § §1341 and 1343.
60. At all times during the class period, McCann engaged in schemes to defraud
potential and actual McCann students through mail and wire fraud regarding the accreditation
status of the Lab Tech Program.
61. At all times during the class period, the class members applied to, were accepted
at and attended McCann, McCann was aware that the Lab Tech Program was not accredited by
the appropriate organizations.
62. At all times during the class period, McCann specifically told class members that
the Lab Tech Program was properly accredited and /or that they were in the process of getting the
Program accredited.
63. McCann also continued to assist and encourage the class members to take out
federal student loans in order to remain enrolled in the program.
64. At all times during the class period, McCann engaged in schemes to defraud
potential and actual McCann students through mail and wire fraud regarding whether they would
be able to sit for the ASCP certification exam after completing the Lab Tech Program.
65. Although McCann knew that it did not have the proper accreditations for the class
members to sit for the ASCP exam, it represented to the class members that they would be able
to sit for it upon successful completion of the Lab Tech Program
66. Each of these schemes has involved suppression of information, lies, fraudulent
misrepresentations, and omissions reasonably calculated to deceive class members of ordinary
prudence and comprehension.
67. McCann executed or attempted to execute such schemes through the use of the
United States mail and through transmissions by wire communications (e- mails, telephone calls,
radio advertisements, television advertisements, and internet advertisements) in interstate
commerce.
68. McCann, through the use of the United States Postal Service mail and through
telephone e-mail communications as well as radio, TV, and internet advertisements, perpetually
assured class members that they would be able to get a degree from an accredited program and
sit for the certification exam.
69. These predicate acts form a "pattern" of racketeering activity that have been
related in their common objectives of. soliciting unsuspecting students to enroll at McCann,
maximizing operating revenue from students; encouraging students to take on student loans; and
misleading students, the public, accreditation bodies, and government agencies about operations
at McCann.
70. These acts have had the same or similar purposes, results, participants, victims,
methods of commission and have been consistently repeated.
71. As a result of the Enterprise's violations of 18 U.S.C. § §1962(c) and (d), the class
members have suffered and continue to suffer damages, which include, but are not limited to,
costs related to enrolling in and attending classes at McCann, loss of income opportunity, loss of
earning capacity and other economic losses.
72. Under the provisions of 18 U.S.C. § 1964(c), the class members are entitled to
bring this action and to recover treble damages, costs, and reasonable attorneys' fees and
equitable relief, pursuant to 18 U.S.C. §1964(a), in the form of disgorgement of profits, and
assets.
WHEREFORE, Plaintiff, on behalf of themselves and the class, respectfully request that
this Honorable Court grant judgment in their favor and against Defendants, McCann School of
Business & Technology and Delta Education Career Corporation in an amount which exceeds
the jurisdictional limit for arbitration in the Court of Common Pleas of Cumberland County plus
costs, attorney's fees, and treble damages.
Respectfully submitted,
Date:
By:
Benjamin D. Andreozzi
PA# 89271
Heather E. Verchick
PA #201310
Andreozzi & Associates, P.C.
215 Pine Street, Suite 200
Harrisburg, PA 17101
p: 717.525.9142
f. 717.525.9143
Counsel for Plaintiff
VERIFICATION
I verify that the .statements oracle in this Complaint ,are true and correc;t..I +unierstancl that
false :statements herein are made subject to the penalties Hof 18 Pa. C:S.. , §4904, relating to
unworn falsification to ,authorities.
3 Kelsi Weidner
Date: U �� 2�
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
C-1
Sheriff -j.
Jody S Smith rr, r 71
rn
Chief Deputy =;:;:o r- —j
CD
Richard W Stewart 00
Solicitor (W Ti<VtERIFF
r-
7--n
7:
CD CD
Kelsi Weidner
vs. Case Number
McCann School of Business, Inc. (et al.) 2013-3681
SHERIFF'S RETURN OF SERVICE
06/2712013 10:00 AM- Deputy William Cline, being duly sworn according to law, served the requested Complaint&
Notice by handing a true copy to a person representing themselves to be Sandy Eisenburg, Office
Manager,who accepted as"Adult Person in Charge"for McCann School of Bu mess, Inc. at 346 York
Road, South Middleton, Carlisle, PA 17013.
ALLIAM CLINE, DEPUTY
SHERIFF COST: $34.78 SO ANSWERS,
June 28, 2013 RONWR_ANDERSON, SHERIFF
(C)CourAySufte Sheriff,Tcleosoft,InC,
a
Benjamin D.Andreozzi COW"
Attorney ID#89271 cut
�
Heather E.Verchick �� 1�� 1~y ��� �
Attorney ID#201310
ANDREOZZI&ASSOCIATES,P.C.
215 Pine St.,Ste.200
Harrisburg,PA 17101
717-525-9124
Ben @midstatelaw.com
Attorney for Plaintiff
KELSI WEIDNER IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTYPENNSYLVANIA
Plaintiff
VS.
MCCANN SCHOOL OF BUSINESS, INC.
No. 13-3681 CIVIL
and
DELTA CAREER EDUCATION
CORPORATION
Defendants CIVIL ACTION - LAW
AFFIDAVIT OF SERVICE
I, Heather E. Verchick, Esquire, hereby certify that on July 5, 2013, a true and correct copy
of the Complaint filed in this case was served upon Defendant Delta Career Education
Corporation by U.S. Certified Mail at the following address, as evidenced by a copy of the
attached PS Form 3811:
Delta Career Education Corporation
4525 Columbus Street, Suite 101
Virginia Beach,VA 23462
/ ('
Dated. ��lr � By: #1
Heather E.Verchick, Esquire
Counsel for Plaintiff
COMPLETE •N COMPLETE THIS SECTION ON DELIVERY
• Complete items 1,2,and 3.Also complete A. Signature
item 4 if Restricted Delivery is desired. ❑Agent
■ Print your name and address on the reverse ❑Addressee f
so that we can return the card to you. g, ceived by(PV15t.d Name) C. Date of pelivery
• Attach this card to the back of the mailpiece, 1 _ �h� �' —or on the front if space permits. IJC�-
1. Article Addressed to: D. is delivery address different from item 1? ❑ies i
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If YES,enter delivery address below: ❑ No
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S ' ` 3. Sen/dqe Type
Ped Mail ❑Express Mail
`�Q�`>♦���`-i�-V 0�.� V jl-� 3`t�� Registered ❑Return Receipt for Merchandise �.
❑Insured Mail ❑C.O.D.
V 4.'Restricted Delivery?(Extra Fee) ❑Ye
2. Article Number
(Fmnsfer from service fat 7 012 1640 0002 5 0 2 0 5340
PS Form 3811,February 2004 Domestic Return Receipt 102595-02-M-1540 f
4-
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELSI WEIDNER,
Plaintiff, Docket Number 13-3681 Civil
VS.
PRELIMINARY OBJECTIONS
MCCANN SCHOOL OF BUSINESS INC. and AND PETITION TO COMPEL
DELTA CAREER EDUCATION ARBITRATION
CORPORATION,
Defendants.
Filed on behalf of Defendants, McCann
Education Centers, Inc. and Delta Career
Education Corporation,
Counsel of Record for this Party:
Kenneth M. Argentieri (PA ID No. 41468)
DUANE MORRIS LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Ph: 412.497.1005
kmargentieri@duanemorris.com
NOTICE TO PLEAD:
TO: Plaintiff
You are hereby notified to file a written response - -; _T
to the enclosed Preliminary Objections and
Petition to Compel Arbitration within twenty r'-
(20) days from service hereof or a judgment may
be entered a 'nst you. E3 CD
:y
ttorneys for Mc nn Education Centers, Inc. and
Delta Career Education Corporation
DMl\4092745.1
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELSI WEIDNER, ;
Plaintiff,
CIVIL ACTION - LAW
vs.
MCCANN SCHOOL OF BUSINESS INC. Docket Number 13-3681 Civil
AND DELTA CAREER EDUCATION
CORPORATION,
Defendants.
PRELIMINARY OBJECTIONS AND PETITION TO COMPEL INDIVIDUAL
ARBITRATION
Defendants McCann Education Centers, Inc.' and Delta Career Education Corporation
(collectively, "the College") hereby assert these preliminary objections and petition to compel
arbitration pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1, et seq., and Pa. R.
Civ. P. 1028. This action should be dismissed in favor of individual arbitration. In support of its
objections and petition, the College states as follows:
I. PRELIMINARY OBJECTIONS AND PETITION TO COMPEL ARBITRATION
1. Plaintiff Kelsi Weidner("Plaintiff'), commenced this action in the Court of
Common Pleas of Cumberland County, Pennsylvania, by filing a Complaint on June 26, 2013.
2. In the Complaint, Plaintiff alleges a claim for breach of contract, violation of the
unfair trade practices and consumer protection laws, 73 P.S. § 201-1, et seq., and violation of the
' McCann Education Centers, Inc. is incorrectly identified in the Complaint and case
caption as McCann School of Business, Inc.
t.
federal Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1962(C)and(D)
each arising out of and/or relating to her enrollment or attendance at the College.
3. Plaintiff alleges that in 2012 she enrolled in the medical lab technician program
offered by the College. Compl. at TT 1, 21.
4. All of the Plaintiff's claims against the College are subject to a valid agreement to
arbitrate that exists between Plaintiff and the College. Plaintiff signed an Enrollment Agreement
between the Plaintiff and the College.
S. The Enrollment Agreement between Plaintiff and the College contains an
arbitration provision which states:
You (the student) and McCann School of Business& Technology
agree that any dispute arising out of or relating to this enrollment
agreement, your enrollment or your attendance at McCann School
of Business &Technology, whether such dispute arises during or
after your attendance and whether the dispute is based on contract,
tort, statute, or otherwise, shall be resolved by binding arbitration
in the city and county in which the school is located within the
state of Pennsylvania. You(the student) and McCann School of
Business& Technology each further agrees that this arbitration
provision provides each party with its exclusive remedy for redress
of any grievance or resolution of any dispute arising out of this
Agreement, AND EACH PARTY EXPRESSLY WAIVES ANY
RIGHT, INCLUDING WITHOUT LIMITATION THE TO
TRIAL BY JURY, IT MIGHT HAVE TO SEEK REDRESS IN
ANY FEDERAL, STATE OR LOCAL COURT OR OTHER
FORUM, except for an action to enforce in court an arbitration
award rendered to this Agreement.
6. The dispute at issue, as alleged in the Complaint, is within the scope of the broad
arbitration provision which, on its face, encompasses "any dispute arising out of or relating to
this enrollment agreement, your enrollment or your attendance at" at the College "whether the
dispute is based on contract,tort, statute, or otherwise."
2
7. Counsel for the College requested that Plaintiff arbitrate her claims against the
College pursuant to the arbitration agreement between the parties. Plaintiff refused.
Accordingly, the College submits these Preliminary Objections and Petition to Compel
Arbitration to protect the parties' contractual and statutorily-protected right to arbitration.
8. The court must determine the issues of arbitrability.
9. Class arbitration cannot be compelled because there is not a contractual basis for
concluding that the parties agreed to class arbitration. Accordingly, Plaintiff must be compelled
to arbitrate any and all disputes alleged in the Complaint on an individual basis.
10. The arbitration agreement is not unconscionable.
11. When a court determines that a suit or proceeding is referable to arbitration, it
should dismiss the suit and all of its proceedings. After compelling arbitration, there will be
nothing left for this court to adjudicate or stay, so dismissal of the Complaint is the appropriate
remedy.
12. In support of the College's Preliminary Objections and Petition to Compel
Arbitration, the College attaches and incorporates the following:
Attachment A: Affidavit of Cheri Garman and Exhibit A to the Affidavit, which
is the Plaintiff's Enrollment Agreement containing the arbitration provision.
13. The College will also submit a Brief in Support of Preliminary Objections and
Petition to Compel Arbitration in accordance with Cumberland County's local rules. The brief is
incorporated by reference.
WHEREFORE, the College respectfully requests that:
(1) Plaintiff be ordered to arbitrate any and all disputes alleged in the Complaint on
an individual basis and;
(3) the case be dismissed.
3
Respectfully submitted,
Dated: August 22, 2013
Z);�Kenneth M. entieri (PA ID No. 41468)
DUANE MORRIS LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Ph: 412.497.1005
kmargentieri@duanemorris.com
Attorney for Defendants McCann Education
Centers, Inc. and Delta Career Education
Corporation
4
VERIFICATION
I,Cheri Garman,verify that the statements made in the foregoing Preliminary Objections and
Petition to Compel Arbitration,which are within my personal knowledge,are true and correct
and those which are based on information received from others I believe to be true and correct. I
understand that any false statements in the forging documents are subject to the penalties under
18 Pa.C.S.A.,§4904,relating to unsworn falsification to authorities.
Date:..-- .
CHM CARMAN
t
}
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA.
.EL,SI WEIDNER, Docket Number 13-3681 Civil
Plaintiff,
VS. AFFIDAVIT OF CHEItT
GARMAN
MCCA:NN SCHOOL OF BUSINESS INC.
AND DELTA CAREER EDUCATION
CORPORATION,
Defendants.
COUNTY OF CUMBERLAND )
SS:
COMMONWEALTH OF PENNSYLVANIA }
AFFIDAVIT
Cheri Garman,being first duly sworn on oath,deposes and states as follows.
1. 1 am authorized to execute this Affidavit on behalf of McCann Education Centers,
Inc.1 and Delta Career Education Corporation(collectively,.` he College"). The
statements:tirade in this Affidavit are based on my personal knowledge.
2. I am the Campus Director for the Carlisle,Pennsylvania campus of the College.
3, The College is a nationally accredited private college offering career training in a
variety of fields including the health and medical fields.
4. The College.is regulated by the federal Department of Education under Title IV of
the U.S.Higher Education Act,20 U.S.C. § 1071,et serf. ("HEA"). It regularly
receives funds in the form of student loans that are regulated by the Department of
Education.
McCann Education Centers,Inc. is incorrectly identified in the Complaint and case
caption as McCann School of Business,Inc.
UMI l41021003.t
a
5. Plaintiff Kelsi Weidner C'Plaintiff}was a student at the College's Carlisle
campus.
6. As part of Plaintiff's enrollment at the College,Plaintiff signed an Enrollment
Agreement. The Enrollment Agreement between Plaintiff and the College
contains an arbitration provision which states:
You(the student)and McGann.School of Business&Technology
agree that any dispute arising out of or relating to this admission
application,your enrollment or your attendance at McCann School
of Business.&Technology,whether such dispute arises during or
after your attendance and whether the dispute is based on contract,
tort,statute,or otherwise,shall:be resolved by binding arbitration
in the city and county in which the school is located within the
state of Pennsylvania. You(the student)and McCann School of
Business&Technology each further agrees that this arbitration
provision provides each party with its exclusive remedy for redress
of any grievance or resolution of any dispute arising out of this
Agreement,AND EACH PARTY EXPRESSLY WAIVES ANY
RIGHT, INCLUDING WITHOUT LIMITATION THE TO
TRIAL BY JURY,IT MIGHT HAVE TO SEED REDRESS IN
ANY FEDERAL, STATE OR LOCAL COURT Or OTHER
FORUM,except for an action to enforce in court an arbitration
award rendered to this Agreement.
By signing the Enrollment Agreement,Plaintiff acknowledged that she had read
and agreed to the arbitration provision A true and correct copy of the Enrollment
Agreement signed by Plaintiff is attached hereto as Exhibit"A"
7. The College's operations are extensively regulated by the,United States
Department of Education pursuant to the HEA,20 U.&C- §§ 1071,et seq. The
College is a participant in the United States Department of Education's Student
Financial Aid Program, administered under Title IV ofthe U.S. Code and the
HEA. This.requires the College to be accredited by an accrediting commission
recognized by the United States Department of Education,and to comply with a
vast array of federal statutes and regulations governing participation Title IV
2
programs. Many of these statutes and regulations govern the process of
admissions including,but by no means limited to,the provision of financial aid,
8: The College is nationally accredited by the Accrediting Council for Independent
Colleges and Schools("ACICS"), ACICS is located in Washington,DC and is
approved to confer accreditation by the united States.Department of Education
under the BEA,
9. Most of the tuition for the College's students are paid by way of a mix of federal
student loans and grants,all administered under the Title IV student financial aid
statutes and regulations previously mentioned. The financial aid award decisions
are based on a federal form called a Free Application for Federal Student Aid
("FAl~S.A."),which are electronically transmitted to the United States.Department
of Education as.part of the approval and funding process,and funds are in feat
electronically transmitted by modalities of interstate conccnerce including wire,
intemet,and U.S. mail.
BY: 1 1
Cheri Garman
Subscribed and sworn to before me
IN s day of W? 7-2Q13,by C94W,( AgJa4lgtU
Notkfjy Public to
My Commission expires: ox F- , J�Oj 7CAMELAIMANGE NotaryPue,Cune-d d Coun expires June 24,2014
r
EXHIBIT A
r
NiCCANN SCHOOL OF BUSINESS ENROl1.MENT AGREIrlMt;NT
REDACTED
346 York Road
Carlde,PennSyiVanla 17013
Phone:(-717)2118-3400 Fax: (717)ZI6-:3499
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tim.N 1 v�zro:irz�i nmear&WIta• «,xr
Ufthmm sin ;Tatltt ft�ibmec pn Fr ryas):a
xmrstredea fee:{ &*d_J&d_fW JM_'f k ftQJ0U ftn11 o�eterL S75
[tom orr Willb i m promm fft per ft"dru tr7 rcrrr?Cr 11�iiF •'�'ti V•"�
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This AGREEMENT made and entered into between.MCCANN SCHOOL OF BUSINESS AND TECHNOLOGY,Car-lisle,
Pennsylvania,hereinafter referred'to as the SCHOOL,and the STUDENT whose name appears on Page One(1)of-this
AGREEMENT. it is understood and agreed that this AGREEMENT constitutes the entimcontract between the pa ties and
that no representations other than herein contained have been made. Any alterations,cancellations,or revocations of t7-�.is
AGREEMENT',not otherwise provided herder,mustbe in writing:and signed by-the STUDENT aud.the School Direct or.
Tit cases ofFederal Financial Aid,the.appropriate agency document governs pay-backs and any interest charged will b e in
accordance with:the regulations established by the V.S.Department eifEducation and/or the"Appfropriate Govcmmen-t
Agencies ,
This-ENROLLMENT.AGREEMENT complies with the Rules and ReguMoVs ofthe Comroonwealth..of Pennsylvans a,State
Board of Private Licensed Schools.
Upon enrollment,the S'T'UDENTvAll pay a one-Mime Registration Fee of 540.The STUDENT agrees to the followin a
'financial terms subject to the CANCELLATION.AND SEMEMENT POLICY on Page Two(2)of this AGREEMIENT.
The MIDENT understands that payments are due in Advance of each payment period on the first day ofthe month_ and
failure to comply with the payment schedule will be cause for suspension of training.kis further understood that pa-rznent
liability rests with:the STUDENT regardless of the source of funds or financial aid which-nay be made available.
If the STUDENT fails to pay any of the amotrtsts duo to the Institution under this AGREENINT when they are due,,. the
STUDENT wilt also pay the fnstitutioa for all costs god expenses,including masonable attorney's fees.that are ineurr•edby
the institution in the collection of these amounts.Ifthis AGREEMENT is:referred for,collection to an agency that is subject
to the Pair Debt Collection Practices Act,the STUDENT will pay.1hose collection costs which do not exceed 25 per cent of
the unpaid amount,
I understand,if a governmentguarmteed,student loan is provided and I fail.to repay.41 my income tax refund could lie.tal:en
away,and I would not be-able to get other student,fvnancial aid or government,housing assistance until I pay off the» Ioarr.
I further understand that-if f am applying for financial assistmce,neither th e,amotzntof.financial assistance rior anN,; payment
schedulee'can he determined at this time.As soon as the amount of financ gt assistance has been determined.a RotaaAl.
Installment Contract(R1C)shall be elcecuted,.which will disclose a.schedule pfpayrr enf for tuition and fees not cc„.wmd by
financial,assistance ire compliance With state:and federal law.�(Student's.In'itials)
The STUDENT will be given a reasonable extension:of time to report in ease of illness,or airy act of God that would
necessitate a delay in Aartmg.
The SCHOOL agrees to provide training for the total credits comprisingthe program as titled above.At the concktasion ofthe
program,the STUDENT wilt be awarded a Diploma,an Associate in Specialized Business DeVM or an Associa-t a in
Specialized Technology Degree provided the STUDENT has met the scholastic wind tuition requirements.
The STUDENT roust be available for classes between 8:00 a.m.and 6:00 p.m.for Day I Mid-Day classes;and ber--tween 5:30
p.m and 11:00 p.m.for Everting classes on the days nested in this AGREEMENT. (Stude nfs Wfials)
The SCHOOL is rel:ie:ved arsd released of all claims by the STUDENT that may arise as a.result of the SCHOOL'S inability to
perform hereunder as a result of an act of Gad,or any other matter beyond the,control of the SCHOOL
The STUDENT agrees to maintain regularattendance and any willful irregularity,violation or infringement of.tlze
SCHOOL'S rules and regulations or failure to maintain satisfactory grades,may result in immodiate.dismissal or suspension
from the SCHOOL at the option ofthc SCHOOL.STUDENT'S who are dismissed will be governed bytbe.safn,_-refund.
policy as students who interrupt training:
http://delta tools/DocumentA.dmin/Document.aspx 2/6/2012
Page 2 of 4
STUDENTS who#'ail to maintain a passing grade will be required to repeat that course at thc:rate of tuition stipulated in
his/her ENROLLMENT AGREEMENT.
The STUDENT also understands that ifhetshe interrupts for more than one.term of enrollment,he/she will be subject to the
prevailing tuition rate in effect at the time training resumes.
The SCHOOL.reserves the right with prior notice to alter hours and/or days of attendance and/or starting elates and/or course
(s)within reason when deemed necessary,Such changes will not alter the tuition costs or refund policy stated in this
AGREEMENT.The school,also reserves the right to increase tuition costs with prior notice of at least; 0 days.Ifconditions
beyond the control of the school require postponement of:a starting date or temporary suspension of classes,appropriate
adjustments will be trade to provide STUDENTS all of the instruction to which they are entitled under the teruts ofthis
AGREEWNT.Students who have enrolled but have not statted attending the SCHOOL will,upon request,be.issued a
refund of-monies paid'if postponement of classes exceeds one quarter/payment period. (Student's Initials)
The STUDENT understands that absence'from a.regularly scheduled class DOE&NOT relieve-him/her oftuition liability.
The SCHOOL will not release certified hours-or transcripts to the licensing board or-other schools unless all financial and
contractual obligations have been met. An official t riscript.may be provided`to.atry student who withdraws if the above
financial obligations'have been satisfied.
I understand that if I do not meet the minimum requirement for the Math and English assessments I will be required to take
Math.and/or English foundations. STUDENTyS�-n��eeding foundations courses will also be charged at the rate of tuition
stipulated in his/her Enrollment Agreement. YS:L(Student's Initials)
I:understand that MCCANN SCHOOL OF BUSINESS AND TECHNOLOGY is accredited by the Accrediting Council for
Independent Colleges and Schools,but does not-guarantee the transfer of credits to other,colleges or universities.The transfer
of credits is solely at the discretion of each institution..1 understand thai the program 1 am applying for,is designed to be an
end.in itself,and credits;gained in any program may ormaynot be transferable.
PLACEMENT ASSISTANCE
MCCA NN SCHOOL.OF BUSINESS AND TECHNOLOGY DOES NOT GUARANTEE JOB PLACEMENT.
IOWEVER,.I`P DOES PROVIDE EWLOYMENT.ASSIS'TANCE TO TTS.CURRENT AND GRADUATE
STUDEN'T'S THROUGH OUR CAREER:SERVICES DEPARTMENT.IT iS FURTHER ACKNOWLEDGED
THAT A COPY OF THIS.AGREEMENT AND THE CATALOG DESCRIBING THE PROGRAM
PREREQUISITES FOR ENROLLm SCHEDULE OF TUITION PAYMENTS HAVE'BEENRECETVED
AND READ BY THE APPLI"CANI (Student's Initials)
PROVISIONAL STUDENT
To be'off eially accepted,.newly enrolled students,on or after June 6,201.1,Ynust.remain continuously enrolled in school for
the f"ust28 days of the program. Provisional StudnAt—A provisional student is one who has been accepted for enrollment
Pending the satisfactiou of one or more cornditions'llrat am set at dre tune of enrollment.Examples of conditions include,but
are not limited to,receipt,of valid proof of high school graduation ox equivalent,receipt of proof that student is not in default
or does nbt currently have student loan debt in excess of.$20,00t)t a first time student who must be.coritinuouslyenrolled for
the first 28 days of the progr ,a first-tithe student who trust be in good standing in all of their classes at the end of the
provisional enrollment.period. Students who are accepted provisionally are,given the condition(s)they mustsatisfy-in
writing,at the time of ertrtfllment.
IF uNDE t LEGAL AGE.NAVE PAREKT OR GLo-wia i PRov DE.REWESrED
I at*that a4 WorMOW FVV16ed atnubroe IS=Mte and'that I haw.'Md aN pbges of this IMAMA TION AND SIGN AS INDICATEI)SELAW.I h&ft reed the AGREEMENT
AGRM4EN'T and YA 6W4by fts PwWom IWe retahid a,cm*ktdy min owy&Lthk ena'800*ki P%rA5W'_
AGREEMENT. !,the buye,may carnet u is sme.aiam nine p�to mwioft or the fft(S)a wc*
o0w ftmOes t%-- may 0 8s.7MS AAGREEM� ENr Is� &=pUW NMiE IN FU(1.(K SE PRINT)
21-7 _ 17&jb L._I f/7J +/ - -- AtS CITY STATE ZIP
DATIE � SrGWATMEWAPPLICANT
TELEPHONEtA3MBER
TE si=0f1T_1cEM IONS A
_ DATE SIWTURE OF PAREW OR GWU Wt
DA
REFUND FOLICTES
Return or Title IV(RIT4)Policy
-r.--'.'Aptfotnn1-,/r)nrirmentAdtnin/D.octunent.aspx 2/6/2012
uf
Page 3 of 4
Aeftoltion ofa Withdrawid for Return to Title"1V"Purposes
Forpurposes of calculating Return to Title"TV,a.Audent:is considered.to have withdrawn from a°d ayment period or period of
enrollment if=
(A)male case of a proms"that is measured"in credit hours„the student-does.not"complete all the days In the payment
porio&or"period o€tnrollritent that the student Wds:sa dole d to complete,
(B)in the rase ofa program thAt is meas d in clock hours,the"student-does not complete all of tyre;clock hours and weeks
of,vastruet:ional,time,in"the payment period.or"period ofei rollmeint that the"student.was scheduled to complete;or
('C,For a student in a non-term or nonstandard`tetm.program,;.ft studentis not se eduled to begin anothercourse.withinla
pa}mtent period or period of"enmllmerit for mom than 45.calendar days"after the end ofithe:.module thestudent ceased
attertdiag:
State Refund Polley
Refunds Prior to the Commencement of Glasses.
The registration foe is fully refundable:if a student requests"cantcellatiott within fivo(5):calendar days of signing the
enrollment agreement A request for mcellation that is not matte in writing shall be confirmed in writing by the student
within an additional period of:five(s)calendar days.All monies paid"by an applicant will be refunded if requested in writing
Witbin ten(10)-days of the enrollment date but Mom the scheduled classes begirt.If an applicant is not accepted for
adm ssi.on,all tuition monies paid will bexefunded.Ifan appiicant'cancels after tens(10)days of enrollment,but before the
scheduled"classes begin,the school will refund all monies paid.
Refunds After i o mmencemerit of Masses by Studtrits
kefunds will be based on the percentage cbmpieted of-the period.charged m, olldws:
Attended Refund percentage
up.to l.ov. 90%
>.1m.,&up to 1S(%a 0%
>I5%o&U002510/4 25°!0 70Y*-
>25%-,&up to 3511/, fro%
>35%&up to 40% 50V
>50vo No refund
All charges and refunds are calculated using the"student's last day of recorded.attcnduce..
RETURN OF UNEARNED TITLE IV FUNDS
The School must return trbe lesser of the amount of Title IV funds the"student does tot earn,ortheamount,of institutional
costs that the student incurred for the payment";period.or period of,enrollment multiplied by the percentage af.f rods that was
not earmcd,
The:student(or paren%if a Federal PLUS loan)must retura ttr-tepaji,as appropriate:
•Any'Title IV loan funds"in accordance with-the.terms of the loan,.and
*The remaining unearned Title IV grunts(not to exceed 30%of the grant)as an overpayrnent-ofthe grant;
Examples of the Return of Title IV calculation are available upon request in the Financial Aid Office.
ORDER OF RETURN OFSFA PROGRAM FUNt35
Title IV funds credited to outstanding lop balan=,for the pay="ent period'or.period of enrollment for-which a return of
funds is required must be returned in the following order:
Unsubsidised StaffordLoan.Progatn.
Subsidized Stafford:Loan:Program
Unsubsidized Direct:Stafford'loans(other than lyLUSIoans),
•Subsidized b"uect"Statford roans
Federal Perkins.Loan Program
1K MIA I I
S ,
Page 4 of 4
•Federal.PLUS loans
•'Federal Direct PLUS loans
if funds remain after repaying all loan.amounts,those remaining.funds must be credited in the following order.
•Federal Pell.Grants for the payment period for which a return of funds is.required
•Federal Suppleitiental Educational Opportunity Grant(FSEOG)for which la return offunds is required
•Other assistance under this .Title for which a return of funds is required
Students will be notified of any refunds due to'.a lender on their behalfthrough the mailed exit interview material.Refunds to
any of the Title IV or State programs will be paid within 45t days from the withdrawaVtermination date.
Note:Students receiving educational funding through'McCann`s Installment Payment Plan must sign the:
"Installment Note and Disclosum Statement".Such note is Incorporated as part of this Enrollment Agreement by
reference.
A9817MAMON
You(the student)and McCann School of Business and Technology agree that any dispute arising out of our relating to this
enrollment agreement,your enrollment or your attendance at McCann School of Business and Technology,whether such
dispute arises during or after your attendance and whether the dispute is based on contract,tort,statute,or otherwise,shall be
resolved by binding arbitration in the city and county in which the school is located within the state of Pennsylvania.You
(the student)and McCann School of Business and Technology each further agrees that this arbitration provision provides
each party with its exclusive remedy for redress of any grievance or resolution of any dispute arising out of this Agreement,
AND EACH PARTY EXPRESSLY WAIVES ANY RIGHT,INCLUDING WITHOUT LIMITATION THE RIGHT TO
TRIAL 13Y JURY,IT MIGHT HAVE TO SEEK R.EDR.ESS IN ANY I'EDERAL,STAIT OR-LOCAL COURT OR
OTHER FORUM,except for an action to enforce in court an arbitration award Tendered to this Agreement.
COMPLAINT PROCEDUkE:
1.In the event of questions or concerns about the terms of this agreement you may contact fire Director of the;Scliool at the
address on Page One(1)ofthis Agreetnent.1f it is not resolved,then contact Delta Carter.Education Corporation,4525
Columbus Street,Suite 101,Virg,inia'Seach,Virginia'23462-6701.
2.McCann School ofBusiness and Technology.is licensed by the ldureau of Postsecondary and Adult Education.Questions
or concerns that are not satisfactorily resolved by the persons designated above may be brought to the attention of the Bureau
of Postsecondary and Adult.Education,Division of Higher and Career Education,Pennsylvania Department of Education,
333,Market Street,Harrisburg,PA,17126-0333.
3.Also,I understandthatid rcguire.comparatile-prpgmm. »formation t�elatcd to-tuition and program lengthy I can contact the
Accrediting Council for lrtdepet'tdent Colleges and Scha6ls,:7S6 P.iist 9treet.*f4Ei.Suite 980,Washington;DC 20002-4223.
'Version Ses of 1/:1$12012
1.++...11.1<siFn4nn7v�rli T,rs+sx+si+l�rTFwalw�/r�Ynivmrtan4 ctowv 1)WI )II
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELSI WEIDNER,
Plaintiff, CIVIL ACTION - LAW
VS.
Docket Number 2013-2263
MCCANN SCHOOL OF BUSINESS INC.
AND DELTA CAREER EDUCATION
CORPORATION ,
Defendants.
ORDER
AND NOW, this_day of , 2013, upon consideration of the Preliminary
Objections and Petition to Compel Arbitration filed by Defendants McCann Education Centers,
Inc.2 and Delta Career Education Corporation(collectively, "The College"), it is hereby
ORDERED that the College's Petition is GRANTED.
It is FURTHER ORDERED that Plaintiff Kelsi Weinder is required to arbitrate all
disputes between her and the College on an individual basis pursuant to the arbitration agreement
between the parties.
It is FURTHER ORDERED that the claims against the College are hereby dismissed in
favor of arbitration.
BY THE COURT:
J
2 McCann Education Centers, Inc. is incorrectly identified in the Complaint and case caption as
McCann School of Business, Inc.
CERTIFICATE OF SERVICE
I certify that I am serving the foregoing Preliminary Objections and Petition,to Compel
Arbitration by first class mail addressed as follows:
Benjamin D. Andreozzi, Esq.
Andreozzi & Associates P.C.
215 Pine Street, Suite 200
Harrisburg, PA 17101
Kenneth M. AXteniieri (PA ID No. 41468)
DUANE MORRIS LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Ph: 412.497.1005
kmargentieri@duanemorris.com
Attorney for Defendants McCann Education
Centers, Inc. and Delta Career Education
Corporation
August 22, 2013
0
Benjamin D.Andreozzi C=
Attorney ID#89271 �+=` `' -x
Heather E.Verchick z M tom'-E
Attorney ID#201310 `
ANDREOZZI&ASSOCIATES,P.C. -<> -- _ '
215 Pine St.,Ste.200 `' C7)
Harrisburg,PA 17101 �-
717-525-9124
Ben @midstatelaw.com
Attorney for Plaintiff v'
KELSI WEIDNER
Plaintiff
IN THE COURT OF COMMON PLEAS
VS. CUMBERLAND COUNTY, PENNSYLVANIA
MCCANN SCHOOL OF BUSINESS,
INC. No. 13-3681 Civil
and
DELTA CAREER EDUCATION
CORPORATION
Defendants CLASS ACTION
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE
CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN
TWENTY(20)DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY
ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND
FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO
SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED
AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY
CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED
BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS
IMPORTANT TOYOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE,PA 17013
1-800-990-9108
717-249-3166
Benjamin D.Andreozzi
Attorney ID#89271
Heather E.Verchick
Attorney ID#201310
ANDREOZZI&ASSOCIATES,P.C.
215 Pine St.,Ste.200
Harrisburg,PA 17101
717-525-9124
Ben @midstatelaw.com
Attorney for Plaintiff
KELSI WEIDNER
Plaintiff
IN THE COURT OF COMMON PLEAS
VS. CUMBERLAND COUNTY,PENNSYLVANIA
MCCANN SCHOOL OF BUSINESS,
INC. No. 13-3681 Civil
and
DELTA CAREER EDUCATION
CORPORATION
Defendants CLASS ACTION
AMENDED CLASS ACTION COMPLAINT
Plaintiff, Kelsi Weidner("Plaintiff') brings this class action lawsuit against Defendants,
McCann Education Centers Inc. ("McCann")' and Delta Career Education Corporation("Delta").
The following allegations are based on personal knowledge as to Plaintiff s own experiences, and
are made on information and belief as to the experiences of others.
THE PARTIES
1. Plaintiff Kelsi Weidner is an adult individual. Her mailing address is c/o
Andreozzi &Associates, P.C.,215 Pine Street, Suite 200, Harrisburg, PA 17101. She enrolled
1 McCann Education Centers, Inc. was incorrectly identified in Plaintiffs Complaint and case
caption as McCann School of Business, Inc. Plaintiff intends on filing a Praecipe to remedy this
incorrect identification.
in and paid for Defendants' educational program to seek and obtain certification as a Medical
Lab Technician.
2. Defendant McCann Education Centers, Inc. is a Pennsylvania corporation with a
place of business located at 346 York Road, Carlisle, PA 17013.
3. Defendant Delta is a Virginia Corporation with a business mailing address of
4525 Columbus Street, Suite 101, Virginia Beach,Virginia 23462.
4. During all relevant times,Delta owned and/or operated educational institutions
that offered classes and degrees to students in various fields of study.
5. During all relevant times, McCann was an education institution that offered
classes and degrees to students in various fields of study
6. It is believed, and therefore averred that McCann was a subsidiary and/or affiliate
of Delta, and thus, the Defendants will be referred to collectively as McCann.
JURISDICTION AND VENUE
7. This Court has personal jurisdiction over Defendants since Defendants Delta and
McCann conduct continuous business within Pennsylvania.
8. Venue in this Court is proper under Pennsylvania Rule of Civil Procedure 1006
and 2179 because Delta and McCann conduct continuous business within Cumberland County,
and the actions and inactions by Delta and McCann with respect to the named Plaintiff occurred
in Cumberland County.
FACTS PERTAINING TO THE CLASS MEMBERS' EDUCATION AT MCCANN
9. McCann is a private for-profit educational institution that-offers classes and
degrees to,students in various fields of study, including, but not limited to the field and major of
Medical Lab Technician("Lab Tech Program")and Surgical Technology("Surgical Tech
Program").
10. McCann has several campuses in Pennsylvania that offer the Lab Tech Program
and the Surgical Tech Program.
11. It is believed, and therefore averred that McCann solicited students to enroll in the
Lab Tech Program and the Surgical Tech Program at each of these campuses by advertising on
their website and through various brochures,pamphlets, catalogs and other advertisements.
12. Plaintiff and other class members sought additional information about the Lab
Tech Program or the Surgical Tech Program at the Carlisle campus from McCann as a result of
these advertisements and solicitations.
13. Prior to enrollment,representatives of McCann advised the class members that,
once they completed the Lab Tech Program or the Surgical Tech Program at the Carlisle campus,
the class members would be able to sit for the relevant national certification exams2, which are
required before the class members could become certified medical lab technicians or certified
surgical technologists
14. Representatives of McCann advised the class members that they would enjoy
higher salaries and better job opportunities after completing the Lab Tech Program or Surgical
Tech Program at the Carlisle campus and passing the required certification exams.
15. After speaking with representatives of McCann about the Lab Tech Program or
the Surgical Tech Program at the Carlisle campus, and justifiably relying on McCann's
2 The national certification exam to become a certified medical lab technician is the American
Society for Clinical Pathlogist("ASCP") certification exam and the national certification exam to
become a certified surgical technologist is the National Board of Surgical Technology and
Surgical Assisting ("NBSTSA") certification exam.
statements that these programs were accredited by the proper agencies and the class members
would be able to sit for the relevant certification exams,class members enrolled in the Lab Tech
Program or the Surgical Tech Program at the Carlisle campus.
16. The class members later discovered that the Lab Tech Program and the Surgical
Tech Program at the Carlisle campus were, in fact,NOT nationally accredited by the relevant
agencies 3, and the class members were therefore not able to sit for the relevant certification
exams to become certified lab technicians or certified surgical technologists.
17. Prior to enrolling, class members were never advised by McCann that McCann's
Lab Tech Program or Surgical Tech Program at the Carlisle campus might not be nationally
accredited or that they might not be able to sit for the relevant certification exams.
18. The education that the class members received at McCann has no value, and the
thousands upon thousands of dollars that they spent on education expenses were wasted.
19. In order for the class members to be able to sit for the ASCP or NBSTSA
certification exams,they will likely have to start from square one and enroll in a properly
accredited institution and pay for and retake many classes that they previously took at McCann.
20. It is believed,and therefore averred that the Lab Tech Program and the Surgical
Tech Program at the Carlisle campus have still failed to obtain national accreditation from the
relevant agencies such that the class members could sit for the relevant certification exams.
FACTS PERTAINING TO THE NAMED PLAINTIFF
21. Plaintiff Kelsi Weidner enrolled in the Lab Tech Program in February of 2012.
3 The national accreditation agency for the Lab Tech Program is the National Accreditation
Agency for Clinical Laboratory Sciences ("NAACLS"), and the national accreditation agency for
the Surgical Tech Program is the Commission on Accreditation of Allied Health Education
Programs ("CAAHEP") or the Accrediting Bureau of Health Education Schools ("ABHES").
22. In December of 2011, she spoke with a representative of McCann about enrolling
in the Lab Tech Program.
23. McCann's representative advised Plaintiff that she would not have a problem
getting a job, and would just have to take the certification exam after she graduated from
McCann.
24. Plaintiff was also advised that McCann would help her take the certification exam
and study for it.
CLASS ACTION ALLEGATIONS
25. This action involves McCann's solicitation to entice potential students to sign up
for the Lab Tech Program at various campuses throughout Pennsylvania and the Surgical Tech
Program at the Carlisle Campus even though McCann:knew or should have known that it did not
have the accreditations necessary for the students to sit for the proper certification exams.
26. This action may be properly maintained as a class action pursuant to Pennsylvania
Rules of Civil Procedure 1702, 1708, and 1709.
27. The class is defined as and includes all students who enrolled in the Lab Tech
Program at any McCann campus from2009 through the present and all students who enrolled in
the Surgical Tech Program at the Carlisle Campus from 2009 through the present.
28. The class is so numerous that joinder of all individual members is impracticable.
29. McCann's conduct with respect to Plaintiff and the class raises questions of law or
fact that are common to the entire class.
30. The questions of law or fact that are common to the entire class include: whether
or not the Lab Tech Program and the Surgical Tech Program at the Carlisle campus were
nationally accredited by the relevant agencies such that class members were eligible to sit for the
relevant certification exams;whether or not McCann advertised that the Lab Tech Program and
the Surgical Tech Program at the Carlisle campus were nationally accredited by the relevant
agencies when they were not;whether or not McCann should have known that it was advertising
these programs as being nationally accredited when, in fact,these programs were not nationally
accredited;whether or not McCann misrepresented the accreditation status of the Lab Tech
Program and the Surgical Tech Program at the Carlisle campus to induce the class members to
sign up for these programs in violation of the Pennsylvania Consumer Protection Law; whether
the accreditation status of the Lab Tech Program and the Surgical Tech Program at the Carlisle
campus and the ability to sit for the relevant certification exams were material terms of the
contract between class members and McCann; whether McCann is capable,under the RICO laws
of forming an enterprise under such laws;whether McCann used the instrumentalities of wire
and mail in falsely representing to its prospective and existing students that these programs were
accredited;whether McCann's uniform conduct harmed the class members and, if so,the nature
of such harm; and whether a common methodology exists to calculate damages that were
sustained by the class members.
31. Plaintiffs claims and defenses are typical of the claims or defenses of the entire
class because all claims are based on the same legal theories and remedies. Furthermore,
Plaintiff s assertions that McCann breached a material term of its contract with her and that she is
protected from misrepresentation under the Pennsylvania Consumer Protection Law is
sufficiently aligned with the interests of the class as a whole so that pursuit of Plaintiff s own
interests will benefit the class as a whole.
32. Plaintiff will fairly and adequately assert and protect the interests of the class
because (a)Plaintiff is represented by experienced counsel who is well-prepared to vigorously
and competently litigate this action on behalf of the class; (b)Plaintiff and her counsel are free of
any conflicts of interest that prevent them from pursuing this action on behalf of the class; and
(c)Plaintiff and her counsel have adequate financial resources to assure that the interests of the
class will not be harmed.
33. A class action provides a fair and efficient method for adjudication of the
controversy because:
a) Common questions of law and fact predominate over any questions
affecting Plaintiff or individual class members;
b) All class members are easily identifiable through McCann's records and
computer files, and no foreseeable difficulties in the management of this action as a class
action exists;
c) The monetary damages sought on behalf of the class are readily calculated
and attributable to class members;
d) Maintenance of the instant litigation as a class action protects against the
risks of inconsistent judgments that might result if individual class members were to
commence independent actions in various courts throughout Pennsylvania;
e) Because McCann conducts a substantial amount of business in
Cumberland County, and the cause of action with respect to the named Plaintiff arose in
Cumberland County,this Court is an appropriate forum for the litigation of the claims of
the entire class;
f) The complexities of the issues and the expense of litigating the separate
claims of individual class members weigh in favor of class certification; and
g) Because the damages sustained by individual class members are relatively
small compared to the resources of McCann and the costs of individual litigation, it is
impracticable and unrealistic for individual class members to independently pursue
litigation against McCann in order to vindicate their rights.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court certify this class
action, appoint Plaintiff as the class representative and undersigned counsel as class counsel, and
find in favor of the class and against Defendants and award compensatory damages in an amount
which exceeds the jurisdictional limit for arbitration in Cumberland County, grant injunctive
relief preventing defendants from continuing to advertise that its program is accredited, award
treble damages and attorney's fees and costs pursuant to the Pennsylvania Unfair Trade Practices
and Consumer Law and the Federal Racketeer Influenced and Corrupt Organizations Act, and
any such other relief as this Court deems fair and just.
COUNT
BREACH OF CONTRACT
34. Paragraphs 1 through 33 are fully incorporated as though set forth herein.
35. McCann purportedly offered the class members enrollment in a nationally
accredited program that would allow the class members to sit for the relevant certification exams
to become either a certified medical lab technician or a certified surgical technologist.
36. The class members accepted McCann's offer by enrolling in the Lab Tech
Program or the Surgical Tech Program at the Carlisle campus and paying tuition to McCann for
these programs.
37. As a result,the class members who enrolled in the Lab Tech Program or the
Surgical Tech Program at the Carlisle campus entered into a contract with McCann wherein the
class members paid tuition to McCann to be eligible to take various classes that would entitle the
class members to obtain a degree as a Medical Lab Technician or a Surgical Technologist and sit
for the relevant certification exams,which would provide them with better job opportunities with
higher salaries in their related field.
38. The representations that were made to the class members prior to their enrollment
in the Lab Tech Program or the Surgical Tech Program at the Carlisle campus with respect to the.
Programs' accreditation and the class members' ability to sit for the relevant certification exams
was a provision of the contract between the class members and McCann.
39. Any and all advertising, including but not limited to websites, catalogs, brochures
and other advertisements that McCann made available to the class members to entice them to
enroll in the Lab Tech Program or the Surgical Tech Program at the Carlisle campus was also a
provision of the contract between the class members and McCann.
40. After enrolling in the Lab Tech Program or the Surgical Tech Program at the
Carlisle campus,representatives of McCann continued to assure the class members that these
programs were properly accredited and would allow the class members to become certified
medical lab technicians or certified surgical technologists after sitting for the relevant
certification exams after graduating from McCann.
41. McCann's advertising, including but not limited to websites, catalogs,brochures
and other advertisements, also reiterated McCann's assertion that the Lab Tech Program and the
Surgical Tech Program at the Carlisle campus were properly accredited and would allow the
class members to become certified medical lab technicians or certified surgical technologists
after sitting for the relevant certification exams after graduating from McCann.
42. McCann breached the contract with the class members in the Lab Tech Program
and the Surgical Tech Program at the Carlisle campus by providing them with programs that
were not nationally accredited and did not allow the class members the opportunity to sit for the
relevant certification exams upon graduation.
43. The ability of the class members to sit for the relevant certification exams upon
graduation from the Lab Tech Program or the Surgical Tech Program at the Carlisle campus was -
a material term of the contract with McCann.
44. McCann has no adequate justification for its breach of contract with the class
members who enrolled in the Lab Tech Program or the Surgical Tech Program at the Carlisle
campus.
45. As a result of McCann's breach,the class members have suffered and continue to
suffer damages,which include,but are not limited to, costs related to enrolling in and attending
classes at McCann, loss of income opportunity,loss of earning capacity and other economic
losses.
WHEREFORE,Plaintiff,on behalf of herself and the class,respectfully requests that this
Honorable Court grant judgment in their favor and against Defendants,McCann Education
Centers, Inc. and Delta Education Career Corporation in an amount which exceeds the
jurisdictional limit for arbitration in the Court of Common Pleas of Cumberland County.
COUNT II
VIOLATION OF THE UNFAIR TRADE PRACTICES AND CONSUMER
PROTECTION LAWS,73 P.S. 4201-1,ET. SEO.
46. Paragraphs 1 through 45 are fully incorporated as if set forth herein.
47. Each of the class members'purchase of educational services from McCann was a
transaction in trade or commerce as defined by 73 P.S. §201-2(3)of the Pennsylvania Unfair
Trade Practices and Consumer Protection Laws("CPL")
48. Plaintiff and other class members purchased the educational services for personal,
family, and household use as defined by the CPL.
49. McCann is a "Person" as the same is defined in the CPL.
50. McCann violated the CPL by committing various unfair, deceptive, and
misleading acts and practices in connection with the sale of educational services to the class
members at all times during the class period, including,but not limited to:
a. Representing that McCann's Lab Tech Program and Surgical Tech
Program at the Carlisle campus were nationally accredited;
b. Representing that upon successful completion of McCann's Lab Tech
Program or the Surgical Tech Program at the Carlisle campus,the class members would
be eligible to sit for the relevant national certification exams, which were necessary
before becoming a certified lab technician or a certified surgical technologist;
C. Misrepresenting the nature and qualifications of McCann's Lab Tech
Program and Surgical Tech Program at the Carlisle campus;
d. Making the material misrepresentations that were described in prior
paragraphs of this Complaint;
e. Charging and collecting fees, costs, expenses and tuition from class
members for a lab technician program and a surgical technologist program that were not
nationally accredited.
51. The class members relied upon the various warranties and representations of
McCann in entering their contract with McCann to enter the Lab Tech Program or the Surgical
Tech Program at the Carlisle campus and in continuing to attend classes and make payments to
McCann for the Lab Tech Program or the Surgical Tech Program at the Carlisle campus.
52. McCann's unfair and deceptive conduct:
a. Caused likelihood of confusion or of misunderstanding as to the source,
sponsorship, approval or certification of McCann's Lab Tech Program and Surgical Tech
Program at the Carlisle campus;
b. Caused likelihood of confusion or of misunderstanding as to McCann's
certification and approval by another;
C. Misrepresented that McCann's Lab Tech Program and Surgical Tech
Program at the Carlisle campus had sponsorship, approval, characteristics, benefits or
quantities that they did not have;
d. Misrepresented that McCann's Lab Tech Program and Surgical Tech
Program at the Carlisle campus were of a particular standard quality or grade;
e. Failed to comply with the terms of a written guarantee or warranty given
to the class members at, prior to, or after the contract was made; and
f. Engaged in deceptive conduct which created a likelihood of confusion and
misunderstanding- all within the meaning of Section 3 of the CPL and Sections 2 (4)(ii),
(iii), (v), (vii), (xiv) and(xxi) of the CPL.
53. As a result of McCann's misrepresentations, the class members have suffered and
continue to suffer damages, which include, but are not limited to, costs related to enrolling in and
attending classes at McCann, loss of income opportunity, loss of earning capacity and other
economic losses.
54: Given McCann's deceptive sale of educational services,the class members are
entitled to treble damages, costs and attorney's fees under section 9.2 of the CPL.
WHEREFORE,Plaintiff, on behalf of herself and the class,respectfully requests that this
Honorable Court grant judgment in their favor and against Defendants, McCann Education
Centers, Inc. and Delta Education Career Corporation in an amount which exceeds the
jurisdictional limit for arbitration in the Court of Common Pleas of Cumberland County.
S COUNT III
VIOLATION OF THE FEDERAL RACKETEER INFLUENCED AND CORRUPT
ORGANIZATIONS ACT, 18 U.S.C. 441962(C)AND 1962(D)
55. Paragraphs 1 through 54 are fully incorporated as if set forth herein.
56. At all times during the class period,McCann was a"person(s)" within the
meaning of 18 U.S.C. §1961(d) as each of the Defendants was "capable of holding a legal or
beneficial interest in property."
57. At all times during-the class period,McCann collectively constituted an
"enterprise" within the meaning of 18 U.S.C. §1961(4).
58. At all times during the class period,McCann conducted or participated,directly or
indirectly, in the conduct of the Enterprise's affairs through a pattern of racketeering activity in
violation of 18 U.S.C. §1962(c).
59. McCann's multiple predicate acts of racketeering, include mail and wire fraud,in
violation of 18 U.S.C. §§1341 and 1343.
60. At all times during the class period,McCann engaged in schemes to defraud
potential and actual McCann students through mail and wire fraud regarding the accreditation
status of the Lab Tech Program and the Surgical Tech Program at the Carlisle campus.
61. At all times during the class period,the class members applied to,were accepted
at and attended McCann,McCann was aware that the Lab Tech Program and the Surgical Tech
Program at the Carlisle campus were not accredited by the appropriate organizations.
62. At all times during the class period,McCann specifically told class members that
the Lab Tech Program and the Surgical Tech Program at the Carlisle campus were properly
accredited,and/or that they were in the process of getting the Programs accredited.
63. McCann also continued to assist and encourage the class members to take out
federal student loans in order to remain enrolled in these programs.
64. At all times during the class period,McCann engaged in schemes to defraud
potential and actual McCann students through mail and wire fraud regarding whether they would
be able to sit for the relevant certification exams after completing the Lab Tech Program or the
Surgical Tech Program at the Carlisle campus.
65. Although McCann knew that it did not have the proper accreditations for the class
members to sit for the ASCP exam or the NBSTSA exam, it represented to the class members
that they would be able to sit for the relevant certification exams upon successful completion of
the Lab Tech Program or the Surgical Tech Program at the Carlisle campus.
66. Each of these schemes has involved suppression of information, lies, fraudulent
misrepresentations, and omissions reasonably calculated to deceive class members of ordinary
prudence and comprehension.
67. McCann executed or attempted to execute such schemes through the use of the
United States mail and through transmissions by wire communications(e-mails,telephone calls,
radio advertisements,television advertisements,and internet advertisements) in interstate
commerce.
68. McCann, through the use of the United States Postal Service mail and through
telephone e-mail communications as well as radio, TV,and internet advertisements,perpetually
assured class members that they would be able to get a degree from a nationally accredited
program and sit for the relevant certification exams.
69. These predicate acts form a"pattern" of racketeering activity that have been
related in their common objectives of. soliciting unsuspecting students to enroll at McCann,
maximizing operating revenue from students; encouraging students to take on student loans; and
misleading students,the public, accreditation bodies, and government agencies about operations
at McCann.
70. These acts have had the same or similar purposes,results,participants,victims,
methods of commission and have been consistently repeated.
71. As a result of the Enterprise's violations of 18 U.S.C. §§1962(c) and(d),the class
members have suffered and continue to suffer damages, which include,but are not limited to,
costs related to enrolling in and attending classes at McCann, loss of income opportunity, loss of
earning capacity and other economic losses.
72. Under the provisions of 18 U.S.C. §1964(c),the class members are entitled to
bring this action and to recover treble damages, costs, and reasonable attorneys' fees and
equitable relief,pursuant to 18 U.S.C. §1964(a), in the.form of disgorgement of profits, and
assets.
WHEREFORE,Plaintiff, on behalf of herself and the class, respectfully requests that this
Honorable Court grant judgment in their favor and against Defendants, McCann Education
Centers, Inc. and Delta Education Career Corporation in an amount which exceeds the
jurisdictional limit for arbitration in the Court of Common Pleas of Cumberland County.
Respectfully submitted,
Date: t l� �/ By:
Benjamin D. Andreozzi
PA# 89271
Heather E. Verchick
PA#201310
Andreozzi &Associates, P.C.
215 Pine Street, Suite 200
Harrisburg, PA 17101
p: 717.525.9142
f: 717.525.9143
Counsel for Plaintiff
VERIFICATION
I verify that the statements rnade.in this Amended Complaint are true and correct. I
understand that false statements herein are made sub ect to the penalties of 18 Pa.C.S. 404,
relating to unsworn falsification to authorities.
)LO
Kelsi Weidner
Date;
CERTIFICATE OF SERVICE
I, Heather E. Verchick, Esquire, hereby state that I have this day caused to be served a
true and correct copy of Plaintiffs Amended Class Action Complaint to all counsel of interest at
the address below named, by U.S. Mail, First-Class,postage prepaid:
Kenneth M. Argentieri
Duane Morris LLP
600 Grant Street
Suite 5010
Pittsburgh, PA 15219
Date: 901 /13( 3 By:
Benjamin D. Andreozzi
Attorney ID #89271
Heather E. Verchick
Attorney ID #201310
215 Pine St., Ste. 200
Harrisburg, PA 17101
p: (717) 525-9124
f: (717) 525-9143
Attorney for Plaintiff
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
•
KELSI WEIDNER,
•
Plaintiff, : Docket Number 13-3681 Civil
•
vs.
: PRELIMINARY OBJECTIONS
MCCANN SCHOOL OF BUSINESS INC. and : AND PETITION TO COMPEL
DELTA CAREER EDUCATION : ARBITRATION
CORPORATION,
•
•
Defendants.
•
•
Filed on behalf of Defendants, McCann
Education Centers, Inc. and Delta Career
Education Corporation,
Counsel of Record for this Party:
Kenneth M. Argentieri (PA ID No. 41468)
DUANE MORRIS LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Ph: 412.497.1005
kmargentieri @duanemorris.com
NOTICE TO PLEAD:
TO: Plaintiff
You are hereby notified to file a written response
to the enclosed Preliminary Objections and r z
Petition to Compel Arbitration within twenty ' ' '
^, �
(20) days from service hereof or a judgment may (a)
be ente ed agai t yo . 3
n°D
Zi-- CrJ C7 fir''
Attorneys f McCann Education Centers, Inc. and --
Delta Career Education Corporation �`
DM I\4185244.1
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
•
KELSI WEIDNER ,
•
•
Plaintiff,
: CIVIL ACTION - LAW
vs.
MCCANN SCHOOL OF BUSINESS INC. : Docket Number 13-3681 Civil
AND DELTA CAREER EDUCATION
•
CORPORATION,
•
Defendants.
•
•
PRELIMINARY OBJECTIONS AND PETITION TO COMPEL INDIVIDUAL
ARBITRATION
Defendants McCann Education Centers, Inc.l and Delta Career Education Corporation
(collectively, "the College") hereby assert these preliminary objections and petition to compel
arbitration pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1, et seq., and Pa. R.
Civ. P. 1028. This action should be dismissed in favor of individual arbitration. In support of its
objections and petition, the College states as follows:
I. PRELIMINARY OBJECTIONS AND PETITION TO COMPEL ARBITRATION
1. Plaintiff Kelsi Weidner ("Plaintiff"), commenced this action in the Court of
Common Pleas of Cumberland County, Pennsylvania, by filing a Complaint on June 26, 2013.
Plaintiff filed an Amended Complaint on September 11, 2013.
2. In the Amended Complaint, Plaintiff alleges a claim for breach of contract,
violation of the unfair trade practices and consumer protection laws, 73 P.S. § 201-1, et seq., and
McCann Education Centers, Inc. is incorrectly identified in the Amended Complaint and
case caption as McCann School of Business, Inc.
violation of the federal Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. §§
1962(C) and (D) each arising out of and/or relating to her enrollment or attendance at the
College.
3. Plaintiff alleges that in 2012 she enrolled in the medical lab technician program
offered by the College. Amended Compl. at¶¶ 1, 21.
4. All of the Plaintiff's claims against the College are subject to a valid agreement to
arbitrate that exists between Plaintiff and the College. Plaintiff signed an Enrollment Agreement
between the Plaintiff and the College.
5. The Enrollment Agreement between Plaintiff and the College contains an
arbitration provision which states:
You (the student) and McCann School of Business & Technology
agree that any dispute arising out of or relating to this enrollment
agreement, your enrollment or your attendance at McCann School
of Business & Technology, whether such dispute arises during or
after your attendance and whether the dispute is based on contract,
tort, statute, or otherwise, shall be resolved by binding arbitration
in the city and county in which the school is located within the
state of Pennsylvania. You (the student) and McCann School of
Business & Technology each further agrees that this arbitration
provision provides each party with its exclusive remedy for redress
of any grievance or resolution of any dispute arising out of this
Agreement, AND EACH PARTY EXPRESSLY WAIVES ANY
RIGHT, INCLUDING WITHOUT LIMITATION THE TO
TRIAL BY JURY, IT MIGHT HAVE TO SEEK REDRESS IN
ANY FEDERAL, STATE OR LOCAL COURT OR OTHER
FORUM, except for an action to enforce in court an arbitration
award rendered to this Agreement.
6. The dispute at issue, as alleged in the Amended Complaint, is within the scope of
the broad arbitration provision which, on its face, encompasses "any dispute arising out of or
relating to this enrollment agreement, your enrollment or your attendance at" at the College
"whether the dispute is based on contract, tort, statute, or otherwise."
2
7. Counsel for the College requested that Plaintiff arbitrate her claims against the
College pursuant to the arbitration agreement between the parties. Plaintiff refused.
Accordingly, the College submits these Preliminary Objections and Petition to Compel
Arbitration to protect the parties' contractual and statutorily-protected right to arbitration.
8. The court must determine the issues of arbitrability.
9. Class arbitration cannot be compelled because there is not a contractual basis for
concluding that the parties agreed to class arbitration. Accordingly, Plaintiff must be compelled
to arbitrate any and all disputes alleged in the Amended Complaint on an individual basis.
10. The arbitration agreement is not unconscionable.
11. When a court determines that a suit or proceeding is referable to arbitration, it
should dismiss the suit and all of its proceedings. After compelling arbitration, there will be
nothing left for this court to adjudicate or stay, so dismissal of the Amended Complaint is the
appropriate remedy.
12. In support of the College's Preliminary Objections and Petition to Compel
Arbitration, the College attaches and incorporates the following:
Attachment A: Affidavit of Cheri Garman and Exhibit A to the Affidavit, which
is the Plaintiff's Enrollment Agreement containing the arbitration provision.
13. The College will also submit a Brief in Support of Preliminary Objections and
Petition to Compel Arbitration in accordance with Cumberland County's local rules. The brief is
incorporated by reference.
3
WHEREFORE, the College respectfully requests that:
(1) Plaintiff be ordered to arbitrate any and all disputes alleged in the Amended
Complaint on an individual basis and;
(2) the case be dismissed.
Respectfully submitted,
Dated: September 2013 B Y K
% �
nneth
M. Ar_entieri (PA ID No. 41468)
DUANE M e ' ' S LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Ph: 412.497.1005
kmargentieri@duanemorris.com
Attorney for Defendants McCann Education
Centers, Inc. and Delta Career Education
Corporation
4
VERIFICATION
I, Cheri Garman, verify that the statements made in the foregoing Preliminary Objections and
Petition to Compel Arbitration,which are within my personal knowledge,are true and correct
and those which are based on information received from others I believe to be true and correct. I
understand that any false statements in the forging documents are subject to the penalties under
18 Pa.C.S.A.,§ 4904,relating to unswom falsification to authorities.
Date: q"p%ri- t.6
CHERI GARMAN
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELSI WEIDNER, Docket Number 13-3681 Civil
Plaintiff, •
vs. : AFFIDAVIT OF CHERI
. GARMAN
MCCANN SCHOOL OF BUSINESS INC.
AND DELTA CAREER EDUCATION •
CORPORATION , •
•
Defendants. •
•
COUNTY OF CUMBERLAND )
) SS:
COMMONWEALTH OF PENNSYLVANIA )
AFFIDAVIT
Cheri Garman, being first duly sworn on oath, deposes and states as follows:
1. I am authorized to execute this Affidavit on behalf of McCann Education Centers,
Inc.' and Delta Career Education Corporation(collectively, "the College"). The
statements made in this Affidavit are based on my personal knowledge.
2. I am the Campus Director for the Carlisle, Pennsylvania campus of the College.
3. The College is a nationally accredited private college offering career training in a
variety of fields including the health and medical fields.
4. The College is regulated by the federal Department of Education under Title IV of
the U.S. Higher Education Act, 20 U.S.C. § 1071, et seq. ("HEA"). It regularly
receives funds in the form of student loans that are regulated by the Department of
Education.
McCann Education Centers, Inc. is incorrectly identified in the Complaint and case
caption as McCann School of Business, Inc.
DM I\4102903.1
5. Plaintiff Kelsi Weidner("Plaintiff') was a student at the College's Carlisle
campus.
6. As part of Plaintiff's enrollment at the College, Plaintiff signed an Enrollment
Agreement. The Enrollment Agreement between Plaintiff and the College
contains an arbitration provision which states:
You(the student) and McCann School of Business & Technology
agree that any dispute arising out of or relating to this admission
application, your enrollment or your attendance at McCann School
of Business & Technology, whether such dispute arises during or
after your attendance and whether the dispute is based on contract,
tort, statute, or otherwise, shall be resolved by binding arbitration
in the city and county in which the school is located within the
state of Pennsylvania. You(the student) and McCann School of
Business & Technology each further agrees that this arbitration
provision provides each party with its exclusive remedy for redress
of any grievance or resolution of any dispute arising out of this
Agreement, AND EACH PARTY EXPRESSLY WAIVES ANY
RIGHT, INCLUDING WITHOUT LIMITATION THE TO
TRIAL BY JURY, IT MIGHT HAVE TO SEEK REDRESS IN
ANY FEDERAL, STATE OR LOCAL COURT Or OTHER
FORUM, except for an action to enforce in court an arbitration
award rendered to this Agreement.
By signing the Enrollment Agreement, Plaintiff acknowledged that she had read
and agreed to the arbitration provision A true and correct copy of the Enrollment
Agreement signed by Plaintiff is attached hereto as Exhibit"A."
7. The College's operations are extensively regulated by the United States
Department of Education pursuant to the HEA, 20 U.S.C. §§ 1071, et seq. The
College is a participant in the United States Department of Education's Student
Financial Aid Program, administered under Title IV of the U.S. Code and the
HEA. This requires the College to be accredited by an accrediting commission
recognized by the United States Department of Education, and to comply with a
vast array of federal statutes and regulations governing participation Title IV
2
programs. Many of these statutes and regulations govern the process of
admissions including, but by no means limited to, the provision of financial aid.
8. The College is nationally accredited by the Accrediting Council for Independent
Colleges and Schools ("ACICS"). ACICS is located in Washington, DC and is
approved to confer accreditation by the United States Department of Education
under the HEA.
9. Most of the tuition for the College's students are paid by way of a mix of federal
student loans and grants, all administered under the Title IV student financial aid
statutes and regulations previously mentioned. The financial aid award decisions
are based on a federal form called a Free Application for Federal Student Aid
("FAFSA"), which are electronically transmitted to the United States Department
of Education as part of the approval and funding process, and funds are in fact
electronically transmitted by modalities of interstate commerce including wire,
internet, and U.S. mail.
BY: Ci W 6EVL _
Cheri Garman
Subscribed and sworn to before me
this 5Tday of 4t-,L 7-2013, by ( kit C- 4 A�
Not i y Public C•MM! A ; , • VANIA
[h� l NOTARIAL SEAL
My Commission expires: J LL E c( , c�� T CAMELA J.MA,Cum Notary Public
Boro of Carlisle,Cumberland County
My Commission Expires June 21,2014
3
EXHIBIT A
•
•
MCCANN SCHOOL OF BUSINESS ENROLLMENT AGREEMENT' REDACTED
346 York Road
Carlisle,Pennsyivanla 17013
Phone:{717)218-3400 Fax: (717)218-3499
smarm'rn'os)Ar1Of
tatMENAMEMAINS
LA nom'w.k1..:-ctt name%i(.isi Middle reline_
10Oe ILIMaa tatdatrs Derlf,e
C Nfle eir,alt r_p'R:7re.17241..
oae; t TOW voartm rturid on FT sue);H
Idoehtinei
att1G T a?.+?,/str�r ar�tlre Tuition ver irr6k:5254 Prnsirem tee i, madttt#17 Book fen swgu3rt atelt 5651
2arte7te; z/11fi2 41q/14
Estimated tats4tuition*feetara 537620
Zrpect:d oradtiauon date.;
This AGREEMENT made and entered into between MCCANN SCHOOL OF BUSINESS AND TECHNOLOGY,Carlisle,
Pennsylvania,hereinafter referred to as the SCHOOL,and the STUDENT whose name appears on Page One(1)of this
AGREEMENT. It is understood and agreed that this AGREEMENT constitutes the entire contract between the parties and
that no representations other than herein contained have been made. Any alterations,cancellations,or revocations of this
AGREEMENT,not otherwise provided herein,must be in writing and signed by the STUDENT and the School Direct or.
In cases of Federal.Financial Aid,the appropriate agency document governs pay-backs and any interest charged will b e in
accordance with the regulations established by the U.S.Department of Education and/or the"Appropriate Govcrnrnenl
Agencies".
This.ENROLLMENT AGREEMENT complies with the Rules and Regulations of the Commonwealth of Pennsylvania,State
Board of Private Licensed Schools.
Upon enrollment,the STUDENT will pay a one-time Registration Fee of$40.The STUDENT agrees to the following
financial terms subject to the CANCELLATION AND SETTLEMENT POLICY on Page Two(2)of this AGREEMENT.
The STUDENT understands that payments are due in Advance of each payment period on the first day of the month, and
failure to comply with the payment schedule will be cause for suspension of training.It is further understood that pa rxnent
liability rests with the STUDENT regardless of the source of funds or financial aid which may be made available_
If the STUDENT fails to pay any of the amounts due to the Institution under this AGREEMENT when they are due, the
STUDENT will also pay the Institution for all costs and expenses,including reasonable attorney's fees that are incur—redly
the Institution in the collection of these amounts.If this AGREEMENT is referred for collection to an agency that is subject
to the Fair Debt Collection Practices Act,the STUDENT will pay those collection costs which do not exceed 25 percent of
the unpaid amount.
I understand,if a government guaranteed student loan is provided and I fail,to repay it,my income tax refund could betaken
away,and I would not be able to get other student financial aid or government housing assistance until I pay off the loan.
I further understand that if I am applying for financial assistance,neither the amount of financial assistance'nor anti+ payment
schedule can be determined at this time.As soon as the amount of financial assistance has been determined.;a Retaii.l.
Installment Contract(RIC)shall be executed,which will disclose a schedule of payment for tuition and fees not cca-vered by
financial assistance in compliance with state and federal law. %s7(Student's Initials)
The STUDENT will be given a reasonable extension of time to report in case of illness,or any act of God that would
necessitate a delay in starting.
The SCHOOL agrees to provide training for the total credits comprisingthe program as titled above.At the concision ofthe
program,the STUDENT will be awarded a Diploma,an Associate in Specialized Business Degree,or an Associate in
Specialized Technology Degree provided the STUDENT has met the scholastic and tuition requirements.
The STUDENT must be available for classes between 8:00 a.m.and 6:00 p.m.for Day/Mid-Day classes,and between 5:30
p.m and 11:00 p.m.for Evening classes on the days noted in this AGREEMENT..j (Student's Initials)
The SCHOOL is relieved and released of all claims by the STUDENT that may arise as a result of the SCHOOL-'S inability to
perform hereunder as a result of an act of God,or any other matter beyond the control of the SCHOOL
The STUDENT agrees to maintain regular attendance and any willful irregularity,violation or infringement of tine
SCHOOL'S rules and regulations or failure to maintain satisfactory grades may result in immediate dismissal of suspension
from the SCHOOL at the option of the SCHOOL.STUDENTS who are dismissed will be governed by the same refund
policy as students who interrupt training;
http:l/deltatoolsl Document:Adriain/Doctunentaspx 2/6/2012
Page 2 of 4
STUDENTS who fail to maintain a passing grade will be required to repeat that course at the rate of tuition stipulated in
his/her ENROLLMENT AGREEMENT.
The STUDENT also understands that if he/she interrupts for more than one terns of enrollment,he/she will be subject to the
prevailing tuition rate in effect at the time training resumes.
The SCHOOL reserves the right with prior notice to alter hours and/or days of attendance and/or starting dates and/or course
(s)within reason when deemed necessary.Such changes will not alter the tuition costs or refund policy stated in this
AGREEMENT.The school also reserves the right to increase tuition costs with prior notice of at least 60 days.If conditions
beyond the control of the school require postponement of a starting date or temporary suspension of classes,appropriate
adjustments will be made to provide STUDENTS all of the instruction to which they are entitled under the terms of this
AGREEMENT.Students who have enrolled but have not started attending the SCHOOL will,upon request,be issued a
refund of monies paid if postponement of classes exceeds one quarter/payment period_ (Student's Initials)
The STUDENT understands that absence from a regularly scheduled class DOES NOT relieve him/her of tuition liability.
The SCHOOL will not release certified hours or transcripts to the licensing board or other schools unless all financial and
contractual obligations have been met. An official transcript may be provided to any student who withdraws if the above
financial obligations have been satisfied.
I understand that if I do not meet the minimum requirement for the Math and English assessments I will be required to take
Math and/or English foundations. STUDENTS needing foundations courses will also be charged at the rate of tuition
stipulated in his/her Enrollment Agreement. PA ll (Student's Initials)
I understand that MCCANN SCHOOL OF BUSINESS AND TECHNOLOGY is accredited by the Accrediting Council for
Independent Colleges and Schools,but does not guarantee the transfer of credits to other colleges or universities.The transfer
of credits is solely at the discretion of each institution..I understand that the program I am applying for is designed to be an
end in itself,and credits gained in any program may or may not be transferable.
PLACEMENT ASSISTANCE
MCCANN SCHOOL OF BUSINESS AND TECHNOLOGY DOES NOT GUARANTEE JOB PLACEMENT.
HOWEVER,IT DOES PROVIDE EMPLOYMENT ASSISTANCE TO ITS.CURRENT AND GRADUATE
STUDENTS THROUGH OUR CAREER SERVICES DEPARTMENT.IT IS FURTHER ACKNOWLEDGED
THAT A COPY OF TIIIS.AGREEMENT AND Tf:CATALOG DESCRIBING THE PROGRAM
PREREQUISITES FOR ENROLL NT SCHEDULE OF TUITION PAYMENTS HAVE BEEN RECEIVED
AND READ BY THE APPLICANT. (Student's Initials)
PROVISIONAL STUDENT
To be officially accepted,newly enrolled students,on or after June 6,201.1,must remain continuously enrolled in school for
the first 28 days of the program. Provisional Student—A provisional student is one who has been accepted for enrollment
pending the satisfaction of one or more conditions that are set at the time of enrollment.Examples of conditions include,but
are not limited to,receipt of valid proof of high school graduation or equivalent receipt of proof that student is not in default
or does not currently have student loan debt in excess of 520,000;a first time student who must be continuously enrolled for
the first 28 days of the program;a first time student who must be in good standing in all of their classes at the end of the
provisional enrollment period. Students who are accepted provisionally are given the condition(s)they must satisfy,in
writing,at the time of enrollment.
IF UNDER LEGAL AGE,HAVE PARENT OR GUARDIAN PROVIDE REQUESTED
I certify that all Information provided(bout me Is accurate and that I have read all paged d this INFORMATION AND SIGN AS INDICATED BELOW.I have read the AGREEMENT
AGREEMENT and Wet abide,try Its provisions. I have retained a completely Aired-in copy of this and'acoept Its rrwiswns.
AGREtanair.i,the buyer,may awl this sale atom time pr to midnight of the BEM(s)calendar
day after the data of Ns aansadlat:Failure to exercise this option,however,41 not heat with airy
other remedies against L+ie retai sever you may tom.This AGREEMENT Is not biroingu>dl accepted NAME rN PULL(PLEASE PRINT)
w7RMO by/tjhee Saloon. /�r
2/7 IrCleh.4 /U Qi{�1 x-' ADDRESS an'StATEZIP
SIGNATURE OF APPLICANT
1/1/4 '9;164144.1: v •. ' TELEPHONE NUMBER .—~.
TE , SI TURE OF A' ONS
a Tr,, 1 01.�Ttt_ "i�O DATE SIGNATURE OP PARENT OR GUARDIAN
D/ r eitti• oFFICF sir •
REFUND POLICIES
Return of Title IV(RZT4)Policy
r •+ �itofr�tnn lc/i)ncuimentAdmin/Document.aspx 2/6/2012
Page 3 of 4
Definition of a Withdrawal for Return to Title IV Purposes
For purposes of calculating Return to Title IV,a student is considered to have withdrawn from a payment period or period of
enrollment if—
(A)In the case of a program that is measured in credit hours,the student does not complete all the days in the payment
period or period of enrollment that the student was scheduled to complete;
(B)In the case of program that is measured in clock hours,the student does not complete all of the clock hours and weeks
of instructional time in the payment period or period of enrollment that the student was scheduled to complete;or
(C)For a student in a non-term or nonstandard-term program,the strident is not scheduled to begin another course within a
payment period or period of enrollment for more than,45 calendar days after the end of the.module the student ceased
attending,
State Refund Policy
Refunds Prior to the Commencement of Classes;
The registration fee is folly refundable if a student requests cancellation within five(5)calendar days of signing the
enrollment agreement,A request for cancellation that is not made in writing shall be confirmed in writing by the student
within an additional period of five(5)calendar days.All monies paid by an applicant will be refunded if requested in writing
within ten(10)days of the enrollment date but before the scheduled classes begin.If an applicant is not accepted for
admission,all tuition monies paid will be.refunded.If an applicant cancels after ten(10)days of enrollment,but before the
scheduled classes begin,the school will refund all monies paid.
Refunds After Commencement of Classes by Students
Refunds will be based on the percentage completed of the period charged as follows:
Attended Refund percentage
Up to 10% 90%
>l0%&upto 15% 80%
>15%&up to 25% 70%
>25%&up to 35% 60%
>35%&up to 40% 50%
>40%&up to 50% 40:'0
>50% No refund
All charges and refunds are calculated using the student's last day of recorded attendance.
RETURN OF UNEARNED TITLE IV FUNDS
The School must return the lesser of the amount of Title IV funds the student does not earn,or the amount of institutional
costs that the student incurred for the payment period or period of enrollment multiplied by the percentage of funds that was
not earned.
The student(or parent,if a Federal PLUS loan)must return or repay,as appropriate:
•Any Title IV loan funds in accordance with the terms of the loan,and
The remaining unearned Title IV grants(not to exceed 50%of the grant)as an overpayment of the grant.
Examples of the Return of Title IV calculation are available upon request in the Financial Aid Office,
ORDER OF RETURN OF SFA PROGRAM FUNDS
Title IV funds credited to outstanding loan balances for the payment period or period of enrollment for which a return of
funds is required must be returned in the following order:
•Unsubsidized Stafford Loan Program
Subsidized Stafford Loan Program
•Unsubsidized Direct Stafford loans(other than PLUS loans)
•Subsidized Direct Stafford loans
-Federal Perkins Loan Program
Page 4 of 4
•Federal PLUS Ioans
•Federal Direct PLUS loans
if funds remain after repaying all loan amounts,those remaining funds must be credited in the following order,
•Federal Pell.Grants for the payment period for which a return offends is required
•Federal Supplemental Educational Opportunity Grant(FSEOG)for which a return of funds is required
•Other assistance under this Title for which a return of funds is required
Students will be notified of any refunds due to a lender on their behalf through the.mailed exit interview material.Refunds to
any of the Title W or State programs will be paid within 45`days from the withdrawal/termination date.
Note:Students receiving educational funding through McCann's Installmet tPayruent Plan must sign the
"TInstaUment Note and Disclosure Statement".Such note is incorporated as part of this Enrollment Agreement by
reference.
ARBITRATION
You(the student)and McCann School of Business and Technology agree that any dispute arising out of our relating to this
enrollment agreement,your enrollment oryour attendance at McCann School of Business and Technology,whether such
dispute arises during or after your attendance and whether the dispute is based on contract,tort,statute,or otherwise,shall be
resolved by binding arbitration in the city and county in which the school is located within the state of Pennsylvania.You
(the student)and McCann School of Business and Technology each further agrees that this arbitration provision provides
each party with its exclusive remedy for redress of any grievance or resolution of any dispute arising out of this Agreement,
AND EACH PARTY EXPRESSLY WAIVES ANY RIGHT,INCLUDING WITHOUT LIMITATION THE RIGHT TO
TRIAL BY JURY,IT MIGHT HAVE TO SEEK REDRESS IN ANY FEDERAL,STATE OR LOCAL COURT OR
OTHER FORUM,except for an action to enforce in court an arbitration award rendered to this Agreement.
COMPLAINT PROCEDURE
I.In the event of questions or concerns about the terms of this agreement you may contact the Director of the School at the
address on Page One(1)of this Agreement.If it is not resolved,then contact Delta Career Education Corporation,4525
Cslumbus Street,Suite 101,Virginia Beach,Virginia 23462-6701.
2. McCann School of Business and Technology is licensed by the Eureau of Postsecondary and Adult Education.Questions
or concerns that are not satisfactorily resolved by the persons designated above may be brought to the attention of the Bureau
of Postsecondary and Adult Education,Division of Higher and Career Education,Pennsylvania Department of Education,
333.Market Street,Harrisburg.PA,17126-0333.
3.Also,I understand that if I require comparable program information related to tuition and program length,I can contact the
Accrediting Council for Independent Colleges and Schools,750 First Street NE,Suite 980,Washington,DC 20002-4223.
Version 3 as of l/18/20I2
•
tAiinrnnlc/rl..n+rry antA /nes niTmnnt ovnv WA nn 7
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
•
KELSI WEIDNER,
Plaintiff, : CIVIL ACTION - LAW
•
vs.
: Docket Number 2013-2263
MCCANN SCHOOL OF BUSINESS INC.
•
AND DELTA CAREER EDUCATION
•
CORPORATION ,
•
Defendants.
ORDER
AND NOW, this day of , 2013, upon consideration of the Preliminary
Objections and Petition to Compel Arbitration filed by Defendants McCann Education Centers,
Inc.2 and Delta Career Education Corporation(collectively, "The College"), it is hereby
ORDERED that the College's Petition is GRANTED.
It is FURTHER ORDERED that Plaintiff Kelsi Weinder is required to arbitrate all
disputes between her and the College on an individual basis pursuant to the arbitration agreement
between the parties.
It is FURTHER ORDERED that the claims against the College are hereby dismissed in
favor of arbitration.
BY THE COURT:
J
2 McCann Education Centers, Inc. is incorrectly identified in the Amended Complaint and case
caption as McCann School of Business, Inc.
CERTIFICATE OF SERVICE
I certify that I am serving the foregoing Preliminary Objections and Petition to Compel
Arbitration by first class mail addressed as follows:
Benjamin D. Andreozzi, Esq.
Andreozzi & Associates P.C.
215 Pine Street, Suite 200
Harrisburg, PA 17101
Kenneth M. gentieri (PA ID No. 41468)
DUANE MORRIS LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Ph: 412.497.1005
kmargentieri@duanemorris.com
Attorney for Defendants McCann Education
Centers, Inc. and Delta Career Education
Corporation
September 30, 2013
Benjamin D.Andreozzi ` ` I E_ 'I t a+ �`�•,
Attorney ID#89271
Heather E.Verchick 1J OCT 21
Attorney ID#201310 PH 1:
ANDREOZZI&ASSOCIATES,P.C. y``,DERLH d COUNTY
215 Pine St., Ste.200 PENNS YLVANIA
Harrisburg,PA 17101
717-525-9124
Ben @midstatelaw.com
Attorney for Plaintiff
KELSI WEIDNER
Plaintiff
IN THE COURT OF COMMON PLEAS
vs. CUMBERLAND COUNTY, PENNSYLVANIA
MCCANN SCHOOL OF BUSINESS,
INC. No. 13-3681 Civil
and
DELTA CAREER EDUCATION
CORPORATION
Defendants CLASS ACTION
PLAINTIFF'S RESPONSE TO DEFENDANTS' PRELIMINARY OBJECTIONS AND
PETITION TO COMPEL ARBITRATION
AND NOW comes the Plaintiff, Kelsi Weidner, by and through their attorneys Andreozzi
&Associates, P.C. and on behalf of all parties in the prospective class and responds to
Defendants' Preliminary Objections and Petition to Compel Individual Arbitration and avers as
follows:
1. Admitted.
2. Plaintiffs Complaint is a document which speaks for itself. Thus, no response is
needed.
3. Plaintiffs Complaint is a document which speaks for itself. Thus, no response is
needed.
4. Admitted in part, denied in part. It is admitted that Plaintiff signed an Enrollment
Agreement between the Plaintiff and the college. It is denied that all of Plaintiffs claims are
subject to a valid agreement to arbitrate that exists between Plaintiff and the College. By way of
further response, Plaintiff contends that the agreement to arbitrate was not valid and does not
cover Plaintiffs claims as set forth in her Complaint for the reasons set forth in this Response.
5. The Enrollment Agreement is a document that speaks for itself. Thus, no
response is needed.
6. The averments in Paragraph 6 cite to the arbitration provision in the Enrollment
Agreement, which speaks for itself, and draws legal conclusions from that provision. Thus, no
response is required. To the extent that a response is required,the averments are denied. By
way of further response, Plaintiff denies that the dispute at issue is within the scope of the
arbitration provision. Rather, the scope of the arbitration provision must be determined by the
intention of the parties. Setlock v. Pinebrook Personal Care and Retirement Center, 56 A.3d
904, 907 (Pa. Super., 2012) (citation omitted). Parties to a contract cannot be compelled to
arbitrate a given issue unless there is an agreement between them to arbitrate that issue. Id.
(citation omitted). Therefore, arbitration agreements are to be strictly construed and cannot be
extended by implication. Id. (citation omitted). In the instant matter,Plaintiff never agreed to
submit the issue of accreditation of certain programs to arbitration because she was misled into
believing that the accreditation of the programs was not an issue that would need to be arbitrated.
Furthermore,the arbitration provision was located on the fourth page of the Agreement, but
Plaintiff initialed provisions on the first and second page and signed the second page. Thus,
there is no evidence to show that Plaintiff was ever presented the page containing the arbitration
provision much less that she agreed to be bound by that provision.
7. It is admitted that counsel for McCann requested that Plaintiff arbitrate her claims
against McCann. It is also admitted that Plaintiff refused to arbitrate these claims. By way of
further response, Plaintiff refused to arbitrate these claims because these claims do not fall within
the scope of the arbitration provision for the reasons set forth in Plaintiffs response to Paragraph
6. Plaintiff is without knowledge sufficient to form a belief as to the truth of the remaining
averments in Paragraph 7. Thus, they are denied.
8. The averments in Paragraph 8 are conclusions of law to which no response is
required. To the extent that a response is required,the averments are denied.
9. The averments in Paragraph 9 are conclusions of law to which no response is
required. To the extent that a response is required, the averments are denied. By way of further
response there is no explicit language in the arbitration provision that would not allow this case
to proceed as a class action. If this Court would agree that Plaintiff and class members should be
compelled to arbitrate this case, such being denied for the reasons set forth in Paragraph 6, there
is no policy reason that would "preclude class action proceedings from being imposed on an
arbitration agreement." Dickler v. Shearson Lehman Hutton, Inc., 408 Pa. Super. 286, 296, 596
A.2d 860, 865 (1991). In appropriate cases, class action arbitration "would be the fairest and
most efficient way of resolving the parties' disputes." Id. (citations omitted). However,the trial
court would need to initially certify the class and ensure that notice is provided for and would
need to have final review in order to ensure that all class members were adequately provided for.
Id. at 298, 596 A.2d at 866. In the instant matter, undersigned counsel has been contacted by
over forty(40) class members who want to be included in the class. It would be a waste of
judicial resources to arbitrate over forty cases that involve the same facts and case law. Thus, if
this Court does grant Defendants' Petition to Compel Arbitration, it must first determine whether
or not class certification is appropriate in this case.
10. The averments in Paragraph 10 are conclusions of law to which no response is
required. To the extent that a response is required, the averments are denied. By way of further
response the arbitration agreement is unconscionable because it was located was located on the
fourth page of the Agreement,but Plaintiff initialed provisions on the first and second page and
signed the second page. Thus, there is no evidence to show that Plaintiff was ever presented the
page containing the arbitration provision much less that she reviewed it and signed off on it. It is
unconscionable to hold Plaintiff to a provision of an Agreement that was located after the page
that she signed.
11. The averments in Paragraph 11 are conclusions of law to which no response is
required. To the extent that a response is required, the averments are denied. By way of further
response Plaintiff denies that she should be compelled to arbitrate her claims and that this Court
has nothing left to adjudicate and should dismiss the Amended Complaint for the reasons set
forth in Paragraphs 6 and 9.
12. The attachment to McCann's Preliminary Objections is a document which speaks
for itself. Thus, no response is needed.
13. Plaintiff is without knowledge sufficient to form a belief as to the truth of the
averments in Paragraph 13. Thus, they are denied.
WHEREFORE, for the reasons set forth above, Plaintiff respectfully requests that this
Honorable Court deny and dismiss Defendants'Preliminary Objections and Order Defendants to
file an Answer to the Amended Complaint within twenty(20) days.
Respectfully submitted,
By: 6
Date: to l�g y�� Y• VI (1
Benjamin D. Andreozzi
PA# 89271
Heather E. Verchick
PA#201310
Andreozzi &Associates, P.C.
215 Pine Street, Suite 200
Harrisburg, PA 17101
p: 717.525.9142
f: 717.525.9143
Counsel for Plaintiff
CERTIFICATE OF SERVICE
I, Heather E. Verchick, Esquire, hereby state that I have this day caused to be served a
true and correct copy of Plaintiffs Response to Defendants' Preliminary Objections and Petition
to Compel Arbitration to all counsel of interest at the address below named, via electronic
communication:
Kenneth M. Argentieri
Duane Morris LLP
600 Grant Street
Suite 5010
Pittsburgh, PA 15219
Date: 10 liglti(IQI By:
Benjamin D. Andreozzi
Attorney ID #89271
Heather E. Verchick
Attorney ID#201310
215 Pine St., Ste. 200
Harrisburg, PA 17101
p: (717) 525-9124
f: (717) 525-9143
Attorney for Plaintiff
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in triplicate) W
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for f xtc�
Argument Court.) Me -
:,
CAPTION OF CASE } "
(entire caption must be stated in full) - -, -,3
Kelsi Weidner
c�
vs. m
McCann School of Business, Inc.,X31.
4e lja �rtree- fcduCa-Ka" 13 3681
?,,&k1,g1 No. Term
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to
complaint, etc.):
Defendant's Preliminary Objections and Petition to Compel Arbitration
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
Benjamin D. Andreozzi & Heather Verchick, Andreozzi &Associates
(Name and Address)
215 Pine Street, Suite 200, Harrisburg, PA 17101
(b) for defendants:
Kenneth M. Argentieri, Duane Morris, LLP
(Name and Address)
600 Grant Street, Suite 5010, Pittsburgh, PA 15219
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
December 20,2013
V� t
Signature1/
Ozr c�icA
Print your name
Plaintiff, Kelsi Weidner
Date: 0
� k3 Attorney for
INSTRUCTIONS:
1.Original and two copies of all briefs must be filed with the COURT
ADMINISTRATOR(not the Prothonotary) before argument.
2.The moving party shall file and serve their brief 14 days prior to argument.
3.The responding party shall file their brief 7 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR(not the Prothonotary)after the case is relisted. q
19I �
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COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELSI WEIDNER,
Plaintiff, Docket Number 13-3681 Civil
VS.
MCCANN SCHOOL OF BUSINESS INC. and : MOTION FOR ADMISSION OF
DELTA CAREER EDUCATION COURTNEY L. BAIRD
CORPORATION, PRO HA VICE
Defendants.
Filed on behalf of Defendants, McCann
Education Centers, Inc. and Delta Career
Education Corporation,
Counsel of Record for this Party:
Kenneth M. Argentieri (PA ID No. 41468)
DUANE MORRIS LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Phone: 412.497.1005
kmargentierikduanemorris.com
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COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELSI WEIDNER ,
Plaintiff,
CIVIL ACTION - LAW
VS. :
MCCANN SCHOOL OF BUSINESS INC. Docket Number 13-3681 Civil
AND DELTA CAREER EDUCATION
CORPORATION,
Defendants.
MOTION FOR ADMISSION OF
COURTNEY L. BAIRD PRO HAC VICE
Kenneth M. Argentieri ("Sponsor"), a member of the Pennsylvania Bar, moves pursuant
to Pa.R.C.P. 1012.1 that Courtney L Baird ("Candidate") be admitted pro hac vice for the
purpose of acting as counsel for Defendants McCann Education Centers, Inc. and Delta Career
Education Corporation. Sponsor states the following in support of this Motion:
1. Sponsor and Candidate have attached the verified statements required by
Pa.R.C.P. 1012.1(c) and (d)(2). Sponsor's verified statement is attached at Exhibit A. The
Candidate's Verified Statement is attached at Exhibit B.
2. Sponsor and Candidate have submitted to the IOLTA Board the information and
fee required by 204 Pa. Code §§ 81.504 & 81.505. A copy of the IOLTA Board's letter of
acknowledgement is attached at Exhibit C.
3. Candidate is seeking admission pro hac vice for the purpose of acting as counsel
for Defendants McCann Education Centers, Inc. and Delta Career Education Corporation in this
action. Sponsor has entered his appearance as counsel for Defendants.
WHEREFORE, Kenneth M. Argentieri requests this Court to admit Courtney L. Baird
pro hac vice for the purpose stated in this Motion.
Respectfully submitted,
Dated: December 5, 2013 By
Kenneth M. rgentieri (PA ID No. 41468)
DUANE MORRIS LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Phone 412.497.1005
kmargentieri@duanemorris.com
Attorney for Defendants McCann Education
Centers, Inc. and Delta Career Education
Corporation
2
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COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELSI WEIDNER,
Plaintiff,
CIVIL ACTION - LAW
VS. :
MCCANN SCHOOL OF BUSINESS INC. Docket Number 13-3681 Civil
AND DELTA CAREER EDUCATION
CORPORATION,
Defendants.
VERIFIED STATEMENT OF SPONSOR KENNETH M. ARGENTIERI
Pursuant to Rule 1012.1 of the Pennsylvania Rules of Civil Procedure, Kenneth M.
Argentieri, as sponsor for Courtney L. Baird as candidate for pro hac vice admission, verifies as
follows:
1. After reasonable investigation, I believe the instant candidate for pro hac vice
admission, Courtney L. Baird, to be a reputable and competent attorney, and am in a position to
recommend the candidate's admission.
2. This case, pending in this Court at Docket Number 13-3681 Civil, is the only case
in which I am acting as a sponsor for the pro hac vice admission of Courtney L. Baird.
3. This case is the only case pending in any court of record in this Commonwealth in
which I am acting as the sponsor of a candidate for admission pro hac vice.
4. I confirm that the proceeds from the settlement of a cause of action in which the
candidate is granted admission pro hac vice shall be received, held, distributed and accounted for
DM 1\4361040.1
in accordance with Rule 1.15 of the Pennsylvania Rules of Professional Conduct, including the
IOLTA provisions thereof, if applicable.
The information contained in this Verified Statement is true and correct to the best of my
knowledge, information, and belief, and is made subject to the penalties of 18 Pa.C.S. § 4904
relating to unsworn falsification to authorities.
Executed on December 5, 2013
Pittsburgh, PA Kenneth . Argentieri
2
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COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA
a
KELSI WEIDNER,
Plaintiff,
civil action-law
vs.
MCCANN SCHOOL OF BUSINESS INC. and : Docket Number 13-3681 Civil
DELTA CAREER EDUCATION
CORPORATION,
Defendants.
VERIFIED STATEMENT OF CANDIDATE COURTNEY L.BAIRD
Pursuant to Rule 1012.1 of the Pennsylvania Rules of Civil Procedure, Courtney L.
Baird,a candidate for pro hac vice admission,verifies as follows:
I. I am a member in good standing of the state bars of California (Attorney No.
234410) and Nevada (No. 9325), having been admitted in 2004 and 2005, respectively. I am
admitted to practice before all courts in California and all state courts in Nevada.
2. With respect to each jurisdiction identified above:
(a) I have never been suspended, disbarred,or otherwise disciplined; and
(b) I have never been subject to disciplinary proceedings.
3. I have never been denied proc hac vice admission in any court, including any
court in Pennsylvania. I am currently not admitted pro hac vice in any other pending actions in
Pennsylvania.
DMl\4361061.1
4. I will comply with and be bound by the applicable statutes, case law and
procedural rules of the Commonwealth of Pennsylvania, including the Pennsylvania Rules of
Professional Conduct.
5. I will submit to the jurisdiction of the Pennsylvania courts and the Pennsylvania
Disciplinary Board with respect to acts and omissions occurring during the appearance in the
matter for which admission pro hac vice is being sought.
6. I have consented to the appointment of my sponsor, Kenneth M. Argentieri, an
attorney of record from the Pittsburgh office of the fine of Duane Morris LLP as the agent upon
whom service of process shall be made for all actions, including disciplinary actions, if any,
which may arise out of the practice of law in the matter for which pro hac vice is sought.
The information contained in this Verified Statement is true and correct to the best of my
knowledge, information, and belief, and is made subject to the penalties of 18 Pa.C.S. § 4904
relating to unsworn falsification to authorities.
Executed on December-�2013 �-
San Diego,California Co Baird
2
`A ,
S JPRafl=COURT Of P MSY LVANI
PENNSYLVANIA INTEREST ON
LAWYERS TRUST ACCOUNT BOARD
November 07,2013
COURTNEY L. BAIRD, Esq.
DANE MORRIS LLP
750 B STREET, SUITE 2900
SAN DIEGO,CA 92101
SENT TO COURTNEY BAIRD VIA Email:CLBAIRD @DUANEMORRIS.COM
Dear Attorney BAIRD:
This letter serves as the fee payment certification referenced in 204 Pa Code§81.503 and
acknowledges receipt of the$200.00 fee paid by Check on this date related to your pursuit for
admission pro hac vice in the case identified as Kelsi Weidner v.McCann School of Business, no.
13-3681 CIVIL, filed in the Court of Common Pleas of Cumberland County.
You should refer to Pa Rule of Civil Procedure 1012.1, local court rules,and other regulations of
204 Pa Code§81.501 et.sec}.concerning additional requirements related to seeking pro hac vice
admission.
Sincerely,
Stephanie S. Libhart
Executive Director
cc: KENNETH M.ARGENTIERI, Esq,
kmargentieri@duanemorris.com
Pennsylv<aniti Judic 41l Center
601 Commonwealth Ave,,Ste,2400
PO Sox 62445,fl:arrisburg,I'A 17106-2445
7171438-2001 -888/PA-IOLTA(724-6582)'717/23t-2003 FAX
paiolta a p{acouns.us�w w,paiolta.org
Administering Pennsylvania's Interest On Lawyers Tnast Account(10I.TA)Prograaiz
CERTIFICATE OF SERVICE
I hereby certify that on December 5, 2013 a copy of the Motion for Admission of
Courtney L. Baird Pro Hac Vice has been served by U.S. first class mail, postage prepaid upon
the following counsel of record:
Benjamin D. Andreozzi
Andreozzi & Associates
215 Pine Street, Suite 200
Harrisburg, PA 17101
Kenneth M. rgentieri
3
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
•
KELSI WEIDNER,
•
Plaintiff,
• CIVIL ACTION - LAW
•
vs.
•
•
MCCANN SCHOOL OF BUSINESS INC. Docket Number 13-3681 Civil
•
AND DELTA CAREER EDUCATION
•
CORPORATION,
•
Defendants.
•
ORDER OF COURT
Upon consideration of the Motion for Admission of Courtney L. Baird Pro Hac Vice, it is
hereby ORDERED that the Motion is GRANTED. Ms. Baird is hereby admitted, Pro Hac Vice,
to represent the defendants in this action.
Ccp J.
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DM1\4378840 1
KELSI WEIDNER,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
MCCANN SCHOOL OF BUSINESS, INC. : NO. 13 -3681 CIVIL
AND DELTA CAREER EDUCATION
CORPORATION
Defendant : CLASS ACTION
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS AND PETITION TO COMPEL
INDIVIDUAL ARBITRATION
ORDER
AND NOW, this day of March, 2014, upon consideration of Defendants'
Preliminary Objections and Petition to Compel Individual Arbitration, and after argument,
thereon, the preliminary objections of the Defendants are OVERRULED and the petition is
DENIED.
Heather E. Verchick, Esq.
Andreozzi & Associates, P.C.
215 Pine St., Suite 200
Harrisburg, PA 17101
For the Plaintiff
/161meth M. Argentieri, Esq.
Duane Morris LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
For the Defendants
eapfes frSt lcct,
3//zpY
BY THE COURT,
KELSI WEIDNER,
Plaintiff
v.
MCCANN SCHOOL OF BUSINESS, INC.
AND DELTA CAREER EDUCATION
CORPORATION
Defendant
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
: NO. 13 -3681 CIVIL
: CLASS ACTION
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS AND PETITION TO COMPEL
INDIVIDUAL ARBITRATION
BEFORE HESS, P.J., EBERT, J. and PLACEY, J.
OPINION and ORDER
Before the court are the preliminary objections and petition to compel arbitration of
Defendants McCann Education Centers, Inc.' (hereinafter "McCann ") and Delta Career
Education Corporation (hereinafter "Delta ") filed in response to an amended complaint filed by
Plaintiff Kelsi Weidner. (Prelim. Objections and Pet. to Compel Indv. Arbitration, filed Oct. 1,
2013). Plaintiff's Amended Class Action Complaint contains three counts: at Count I, a claim
for breach of contract; at Count II, a claim for violation of the Unfair Trade Practices and
Consumer Protection Law, 73 P.S. §201 -1, et. seq.; and at Count III, a claim for violation of the
Federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §1962(C), (D). (Am.
Class Action Compl., filed Sept. 11, 2013). The Defendants have preliminarily objected to the
Amended Class Action Complaint, have requested that the Plaintiff be ordered to arbitrate all
disputes on an individual basis, and have requested that the present case be dismissed. (Prelim.
Objections and Pet. to Compel Indv. Arbitration, filed Oct. 1, 2013).
' Plaintiff and Defendants have acknowledged that McCann Education Centers, Inc. has been incorrectly identified
as McCann School of Business, Inc. in the original Complaint and subsequent captions.
Plaintiff's Amended Complaint may be summarized as follows: Plaintiff, Kelsi Weidner,
is an adult individual using her attorney's place of business as her mailing address, 215 Pine
Street, Suite 200, Harrisburg, PA 17101. (Am. Class Action Compl., ¶ 1). McCann, a
Pennsylvania corporation located at 346 York Road, Carlisle, PA 17013, is an education
institution that offers classes and degrees to students in various fields of study. (Am. Class
Action Compl., ¶ ¶ 2, 5). McCann has several campuses across Pennsylvania where several
different programs are offered, including lab tech and surgical tech programs. (Am. Class
Action Compl., ¶¶ 9, 10). Delta, a Virginia corporation with a mailing address of 4525
Columbia Street, Suite 101, Virginia Beach, Virginia 23462, owns and/or operates educational
institutions that offer classes and degrees to students in various fields of study. (Am. Class
Action Compl., ¶¶ 3,4). Plaintiff avers that McCann is one such educational institution affiliated
with Delta. (Am. Class Action Compl., ¶¶ 5, 6).
In December of 2011, Plaintiff spoke with a representative of McCann about enrolling in
their lab tech program. (Am. Class Action Compl., ¶ 22). Plaintiff avers that McCann's
representative advised her that, after graduating from McCann, she would have to take a
certification examination, which McCann would help her study for and take, and should then
have no problem securing a job. (Am. Class Action Compl.,¶¶ 23, 24). Plaintiff enrolled in the
lab tech program in February of 2012. (Am. Class Action Compl., 21). As part of her
enrollment, Plaintiff entered into an Enrollment Agreement with McCann. (Am. Class Action
Compl., IT 37). Plaintiff avers that, after enrollment, representatives of McCann continued to
make assurances that the lab tech and surgical tech programs at the Carlisle campus were
properly accredited and would lead to certification after sitting for the relevant certification
examinations. (Am. Class Action Compl., ¶ 40). The Plaintiff ultimately learned, however, that
2
the lab tech and surgical tech programs at the Carlisle campus were, in fact, not nationally
accredited and did not allow her to sit for the relevant certification examination after graduation.
(Am. Class Action Compl., ¶ 42).
Counsel for the Plaintiff makes further, similar, averments in order to establish a class
action lawsuit. (Am. Class Action Compl., ¶¶ 9 -20, 25 -33). Specifically, it is averred that the
Defendants solicited students to enroll in the lab tech and surgical tech programs through various
means and that the putative class members sought additional information about the programs at
the Carlisle campus as a result of the solicitations. (Am. Class Action Compl., ¶¶ 11, 12). It is
further averred that the putative class members were informed that they would be able to sit for
the relevant certification examination after completing their respective program and would then
enjoy better job opportunities. (Am. Class Action Compl., ¶¶ 13, 14). Like the named Plaintiff,
it is averred that the putative class members justifiably relied on statements by the Defendants
that the programs were properly accredited, that the putative class members discovered that the
programs were not nationally accredited, and the putative class members were not able to sit for
the relevant certification examinations as a result. (Am. Class Action Compl., ¶¶ 15, 16). Based
on the foregoing, Plaintiff asserts at Count I, a claim for breach of contract; at Count II, a claim
for violation of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201 -1, et.
seq.; and at Count III, a claim for violation of the Federal Racketeer Influenced and Corrupt
Organizations Act, 18 U.S.C. §1962(C), (D) to which the Defendants preliminarily object and
seek to have this court compel individual arbitration.
Pursuant to Pennsylvania Rule of Civil Procedure 1028(a), preliminary objections may be
filed by any party to any pleading on several limited grounds, including, "pendency of a prior
action or agreement for alternative dispute resolution...." Pa.R.C.P. 1028(a)(6). "An agreement
3
to arbitrate may be asserted by preliminary objection or by petition to compel arbitration...."
Note to Pa.R.C.P. 1028(a)(6). When considering preliminary objections, "all well - pleaded
allegations and material facts averred in the complaint, as well as all reasonable inferences
deducible therefrom, must be accepted as true." Wurth by Wurth v. City of Philadelphia, 584
A.2d 403, 407 (Pa. Cmwlth. 1990). However, the trial court "need not accept as true conclusions
of law, unwarranted inferences from fact, argumentative allegations, or expressions of opinion. "
Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).
The standard of review for a petition to compel arbitration is well settled. In disputes over
whether arbitration should be compelled, "judicial inquiry is limited to determining (1) whether a
valid agreement to arbitrate exists between the parties and, if so, (2) whether the dispute involved
is within the scope of the arbitration agreement." Smith v. Cumberland Group, Ltd., 687 A.2d
1167, 1171 (Pa. Super. 1997).
Here, the Defendants seek to have the case dismissed and the matter ordered to
arbitration pursuant to an arbitration provision contained in the Enrollment Agreement, which
states:
ARBITRATION
You (the student) and McCann School of Business and Technology agree that any
dispute arising out of our [sic] relating to this enrollment agreement, your
enrollment or your attendance at McCann School of Business and Technology,
whether such dispute arises during or after your attendance and whether the
dispute is based on contract, tort, statute, or otherwise, shall be resolved by
binding arbitration in the city and county which the school is located within the
state of Pennsylvania. You (the student) and McCann School of Business and
Technology each further agrees that this arbitration provision provides each party
with the exclusive remedy for redress of any grievance or resolution of any
dispute arising out of this Agreement, AND EACH PARTY EXPRESSLY
WAIVES ANY RIGHT, INCLUDING WITHOUT LIMITATION THE RIGHT
TO TRIAL BY JURY, IT MIGHT HAVE TO SEEK REDRESS IN ANY
FEDERAL, STATE OR LOCAL COURT OR OTHER FORUM, except for an
action to enforce in court an arbitration award rendered to this Agreement.
4
(Aff., Ex. A).
The plaintiff counters that the foregoing arbitration agreement was located on the fourth
page of the Enrollment Agreement. The plaintiff initialed provisions on the first and second
pages and signed the second page, but there is no evidence to show that the plaintiff was ever
presented the page containing the arbitration provision much less that she reviewed it and signed
off on it.
As noted, we must determine if a valid agreement to arbitrate exists. However, before
doing so, we must address the question of what body of law to apply. The Defendants contend
that the Enrollment Agreement involves interstate commerce and should be analyzed through the
lens of the Federal Arbitration Act (hereinafter "FAA ") , 9 U.S.C. §§ 1, et seq., because such
agreements are regulated by the United States Department of Education and many students use
federal student loans and grants to pay their tuition. The Plaintiff has not conveyed a position on
this issue. Regardless, even under the FAA, state law principles are to be used in determining
the validity of the arbitration agreement.
Section 2 of the FAA is the "primary substantive provision of the Act. " Moses H. Cone
Mem'l. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1982) superseded by statute on other
grounds. Section 2 states, "[a] written provision in any... contract evidencing a transaction
involving commerce to settle by arbitration a controversy thereafter arising out of such contract
or transaction... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at
law or in equity for the revocation of any contract." 9 U.S.C. § 2. In the latter part of § 2, the
"saving clause permits agreements to arbitrate to be invalidated by generally applicable contract
defenses, such as fraud, duress, or unconscionability, but not by defenses that apply only to
arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue."
5
AT &T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1746 (2011) (quotations omitted). In
keeping with the Conception holding, the Pennsylvania Superior Court has held, "when
addressing the specific issue of whether there is a valid agreement to arbitrate," under the FAA,
"courts generally should apply ordinary state -law principles, that govern the formation of
contracts, but in doing so, must give due regard to the federal policy favoring arbitration."
Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 661 (Pa. Super. 2013) (quotations omitted).
Mindful of this background, we turn to the relevant principles in order to determine
whether a valid arbitration agreement exists. In general:
A party's signature to a contract is designed to evidence his intention to be bound
thereby. There is no requirement that a contract be signed at any particular place
so long as the signatories attest the meeting of their minds on the basis of the
agreed -upon writings and their intention to be obligated accordingly.
Petrie v. Haddock, 119 A.2d 45, 47 (Pa. 1956). However, "[a]ny agreement... by which it is
intended to diminish legal rights which normally accrue as a result of a given legal relationship
or transaction must spell out the intention of the parties with the greatest of particularity, since
such contracts...are construed strictly against the party seeking their protection." Morton v.
Borough of Ambridge, 101 A.2d 661, 662 (Pa. 1954). In line with this principle, it has routinely
been held that arbitration agreements are to be strictly construed, Cumberland -Perry Area
Vocational - Technical Sch. Auth. v. Bogar & Bink, 396 A.2d 433, 434 -35 (Pa. Super. 1978), and
that arbitration agreements "are upheld only where it is clear that the parties have agreed to
arbitrate in clear and unmistakable manner." Quiles v. Financial Exch. Co., 879 A.2d 281, 287
(Pa. Super 2005) (citing Emmaus Mun. Auth. v. Eltz, 204 A.2d 926 (Pa. 1964)).
Also, though the law favors arbitration agreements, "[i]t is...clear that the existence of an
arbitration provision and a liberal policy favoring arbitration does not require the rubber
stamping of all disputes as subject to arbitration." McNulty v. H &R Block, Inc., 843 A.2d 1267,
6
•
1271 (Pa. Super. 2004). In McNulty, the Court goes on to state that, when determining the
validity of an arbitration agreement, "it is clear that the court's role is greater than simply
determining whether a contract has been signed." Id at 1272.
Here, the Enrollment Agreement consists of four pages. The Plaintiff has signed the
second page of the Enrollment Agreement and makes no contention that the signature is not hers.
However, the Plaintiff argues that there is no evidence that she expressly agreed to the arbitration
provision because the arbitration provision was on the fourth and final page of the Enrollment
Agreement, while she signed the second page.
Initially, we make two observations. First, the pages of the Enrollment Agreement are
labeled "Page of 4" at the top right hand corner. Second, above the signature block on the
second page of the Enrollment Agreement, there is a paragraph stating, in part, "I certify that all
information provided about me is accurate and that I have read all pages of this AGREEMENT
and will be abide by its provisions." (emphasis added). However, the size of the text that makes
up this paragraph must undoubtedly be characterized as fine print. Additionally, while the
paragraph states that all pages have been read, that particular paragraph does not mention the
number of pages of the Enrollment Agreement.
On the first two pages of the Enrollment Agreement, in addition to the signature at the
bottom of the second page, the Plaintiff had to initial next to five separate paragraphs. In fact,
that last paragraph of the five was apparently determined to be so important that its entire text
was set off in bold font. Comparatively, initials were not required by the arbitration provision.
In addition to not requiring initials, the arbitration provision of the Enrollment Agreement
is surrounded by terms and conditions that are markedly less substantive than those contained on
the first two pages, i.e., the terms and conditions above the signature. Most of the third and
7
fourth pages of the Enrollment Agreement deal with refund policies. Rather than being a
material part of the agreement that lays out conditions for enrollment, these provisions are
information that institutions are required to provide to students regarding refund policies and
information on Title IV requirements as to the treatment of Title IV funds when a student
withdraws from enrollment. It is only after all of these recitations that the reader would find the
arbitration provision. Finally, we note that the arbitration provision does contain a heading in all
capital letters and set off in a bold style. However, the heading for the arbitration provision is
noticeably smaller than the "RETURN OF UNEARNED TITLE IV FUNDS" heading above it.
The federal and Pennsylvania proclivity in favor of arbitration notwithstanding, in view
of case law, it must be evident that an arbitration agreement was agreed to in a clear and
unmistakable manner and courts must do more than just determine if the agreement was signed.
Here, we find that there was no clear agreement to arbitrate.
While in isolation none of the above mentioned factors weighing against a clear
agreement to arbitrate may be enough to find that there is no valid arbitration agreement, the
doubts are too numerous when examined together. A document need not be signed on the last
page; however, that is not the only concern here. In addition to being near the end of the
Enrollment Agreement, the arbitration provision is buried beneath mandatory notices and
separated from the focal point of the document. While the Defendants were careful to draw the
Plaintiff's attention to, apparently, vital information such as what hours the Plaintiff must be
available for class by requiring initials next to that portion of the Enrollment Agreement, the
same treatment was not given to the area where the Plaintiff waives the significant right to a jury
trial. See Bucks Orthopedic Surgery Assocs., P.C. v. Ruth, 925 A.2d 868, 873 (Pa. Super. 2007)
( "Additionally, it is axiomatic that waiving the right to trial must be a knowing and voluntary act
8
of a party to a contract who is aware that the right is being waived. "). The laissez -faire treatment
of the arbitration provision is further seen by its heading being listed under the larger heading
concerning the return of unearned Title IV funds and could appear to relate thereto. In sum, we
cannot find that an agreement to arbitrate was reached in a clear and unmistakable manner.
ORDER
AND NOW, this /Z.- day of March, 2014, upon consideration of Defendants'
Preliminary Objections and Petition to Compel Individual Arbitration, and after argument,
thereon, the preliminary objections of the Defendants are OVERRULED and the petition is
DENIED.
BY THE COURT,
9
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELSI WEIDNER,
Plaintiff, Docket Number 13 -3681 Civil
VS.
MCCANN SCHOOL OF BUSINESS INC. and
DELTA CAREER EDUCATION
CORPORATION,
Defendants.
DM1 \4532129.1
NOTICE OF APPEAL
: CLASS ACTION
Filed on behalf of Defendants, McCann
Education Centers, Inc. and Delta Career
Education Corporation,
Counsel of Record for this Party:
DUANE MORRIS LLP
Kenneth M. Argentieri (PA ID No. 41468)
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Phone: 412.497.1005
kmargentieri@duanemorris.com
Courtney L. Baird (pro hac vice)
750 B Street, Suite 2900
San Diego, CA 92101 -4681
Phone: 619.744 -2285
clbaird @duanemorris.com
ced,51.0v pa any
C ��3 t�
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELSI WEIDNER ,
Plaintiff,
vs.
MCCANN SCHOOL OF BUSINESS INC.
AND DELTA CAREER EDUCATION
CORPORATION,
Defendants.
. Docket Number 13 -3681 Civil
: CLASS ACTION
NOTICE OF APPEAL
Notice is hereby given that Defendants, McCann Education Centers, Inc.' and Delta
Career Education Corporation, hereby appeal to the Superior Court of Pennsylvania from the
Order entered in this matter on March 12, 2014. This Order has been entered in the docket as
evidenced by the attached copy of the docket entry.
Respectfully submitted,
DUAN MORRIS L
Dated: March ,, 2014
Kenneth M. •. gentieri (PA ID No. 41468)
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Phone 412.497.1005
lcmargentieri@duanemorris.com
Courtney L. Baird (pro hac vice)
750 B Street, Suite 2900
San Diego, CA 92101 -4681
Phone: 619.744 -2285
clbaird@duanemorris.com
Attorney for Defendants McCann Education
Centers, Inc. and Delta Career Education
Corporation
McCann Education Centers, Inc. has been incorrectly identified as McCann School of
Business, Inc. in the Original Complaint.
•
• PYS511 Cumberland County Prothonotary's Office Page
Civil Case Print
2013 -03681 WEIDNER KELSI (vs) MCCANN SCHOOL OF BUSINESS ET A
Reference No..:
Case Type.....: CONTRACT - OTHER
Judgment .00
Judge Assigned: HESS KEVIN A
Disposed Desc.:
Case Comments
** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
General Index
WEIDNER KELSI
215 PINE STREET
SUITE 200
HARRISBURG PA 17101
MCCANN SCHOOL OF BUSINESS INC
346 YORK ROAD
CARLISLE PA 17013
DELTA CAREER EDUCATION
CORPORATION
4525 COLUMBUS STREET
SUITE 101
VIRGINIA BEACH VI 23462
Filed
Time
Execution Date
Jury Trial
Disposed Date
Higher Crt 1.:
Higher Crt 2.:
6/26/2013
11:09
0 /00 /0000
0 /00 /0000
**************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
Attorney Info
PLAINTIFF VERCHICK HEATHER E
DEFENDANT ARGENTIERI KENNETH M
DEFENDANT ARGENTIERI KENNETH M
************************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
* Date Entries
************************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
FIRST ENTRY
6/26/2013 COMPLAINT - CIVIL ACTION - BY HEATHER E VERCHICK ATTY FOR PLFF
7/08/2013 SHERIFF'S RETURN - DATED 06
DEFT MCCANN SCHOOL OF BUSIN
17013
SHFF COST - $34.78
27/13 - COMPLAINT 7 NOTICE SERVED ON
SS IN AT 346 YORK ROAD CARLISLE PA
7/16/2013 AFFIDAVIT OF SERVICE - COMPLAINT SERVED ON DEFT DELTA CAREER
EDUCATION CORPORATION AT 4525 COLUMBUS ST STE 101 VIGINIA BEACH VA
23462 - BY HEATHER E VERCHICK ATTY FOR PLFF
8/23/2013 PRELIMINARY OBJECTIONS AND PETITION TO COMPEL ARBITRATION - BY
KENNETH M ARGENTIERI ATTY FOR DEFTS
9/11/2013 AMENDED CLASS ACTION COMPLAINT WITH NOTICE TO DEFEND - BY BENJAMIN
D ANDREOZZI ATTY FOR PLFF
10/01/2013 PRELIMINARY OBJECTIONS AND PETITION TO COMPEL ARBITRATION - BY
KENNETH M ARGENTIERI ATTY FOR DEFTS
10/21/2013 PLFF'S RESPONSE TO DEFTS' PRELIMINARY OBJECTIONS AND PETITION TO
COMPEL ARBITRATION - BY HEATHER E VERCHICK ATTY FOR PLFF
12/02/2013 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT PRELIMINARY
OBJECTIONS - BY HEATHER E VERCHICK ATTY FOR PLFF
12/06/2013 MOTION FOR ADMISSION OF COURTNEY L BAIRD PRO HAC VICE - BY KENNETH
M ARGENTIERI ATTY FOR DEFTS
12/12/2013 ORDER OF COURT - 12/11/13 - IN RE: MOTION OF COURTNEY L BAIRD PRO
HAC VICE - *GRANTED* - BY THE COURT EDWARD E GUIDO J
COPIES MAILED 12/12/13
3/12/2014 ORDER - 3/12/14 - IN RE: DEFTS' PRELIMINARY OBJECTIONS AND
PETITION TO COMPEL INDIVIDUAL ARBITRATION - *OVERRULED* AND
PETITION IS *DENIED* - BY THE COURT KEVIN A HESS PJ
COPIES MAILED 3/12/14
LAST ENTRY
************************************************* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
* Escrow Information A
* Fees & Debits Beg Bal Pymts/Adj End Bal
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * ** * * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *;;
2013-03681
Cumberland County Prothonotary's Office
Civil Case Print
WEIDNER KELSI (vs) MCCANN SCHOOL OF BUSINESS ET A
Reference No..:
Case Type CONTRACT - OTHER
Judgment
Judge Assigned: HESS KEVIN A
Disposed Desc.:
Case Comments
COMPLAINT
TAX ON CMPLT
SETTLEMENT
AUTOMATION
JCP FEE
PREACIPE ARGUME
65.25
.50
9.50
5.00
23.50
19.75
123.50
65.25
.50
9.50
5.00
23.50
19.75
Filed
Time
Execution Date
Jury Trial
Disposed Date
Higher Crt 1.:
Higher Crt 2.:
.00
.00
.00
.00
.00
.00
123.50 .00
Page 2
6/26/2013
11:09
0/00/0000
0/00/0000
********************************************************************************
End of Case Information
********************************************************************************
KELSI WEIDNER,
Plaintiff
v.
MCCANN SCHOOL OF BUSINESS, INC.
AND DELTA CAREER EDUCATION
CORPORATION
Defendant
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY,
: PENNSYLVANIA
: NO. 13 -3681 CIVIL
: CLASS ACTION
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS AND PETITION TO COMPEL
INDIVIDUAL ARBITRATION
ORDER
AND NOW, this I day of March, 2014, upon consideration of Defendants'
Preliminary Objections and Petition to Compel Individual Arbitration, and after argument,
thereon, the preliminary objections of the Defendants are OVERRULED and the petition is
DENIED.
Heather E. Verchick, Esq.
Andreozzi & Associates, P.C.
215 Pine St., Suite 200
Harrisburg, PA 17101
For the Plaintiff
_nneth M. Argentieri, Esq.
Duane Morris LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
For the Defendants
ecepfes rYL:t (�L
3/1/z/if
BY THE COURT,
r
ry
f\)
CERTIFICATE OF SERVICE
I hereby certify that on March21, 2014 a copy of the Notice of Appeal has been served
by U.S. first class mail, postage prepaid upon the following:
Honorable Kevin A. Hess
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Honorable Thomas A. Placey
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Melissa H. Calvanelli
District Court Administrator
Court of Common Pleas of Cumberland
County
Cumberland County Courthouse
1 Courthouse Square, 3R
Carlisle, PA 17013
Honorable M. L. Ebert, Jr.
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Benjamin D. Andreozzi
Andreozzi & Associates
215 Pine Street, Suite 200
Harrisburg, PA 17101
Counsel for Plaintiff
Zmeth M. gentieri
Joseph D. Seletyn, Esq.
Prothonotary
Mary A. Graybill, Esq.
Deputy Prothonotary
superior Court of fieuttOpflutnia
Middle District
March 28, 2014
Buell, David D.
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
Pennsylvania Judicial Center
P.O. Box 62435
601 Commonwealth Avenue, Suite 1600
Haridsburg, PA 17106-2435
(717) 772-1294
www.pacourts.us/courts/superior-court
RE: Kelsi Weidner
v.
McCann Education Centers, Inc. and Delta Career Education Corporation
529 MDA 2014
Trial Court Docket No: 13-3681
Dear David D. Buell:
Enclosed please find a copy of the docket for the above appeal that was recently filed in the
Superior Court. Kindly review the information on this docket and notify this office in writing if you
believe any corrections are required.
Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517,
for completion and filing. Please note that Superior Court Dockets are available on the Internet at
the Web site address printed at the top of this page. Thank you.
Respectfully,
Mary A. Graybill, Esq.
Deputy Prothonotary
/wjt
Enclosure
C)
r.2.11
12:12 P.M.
Appeal Docket Sheet
Docket Number: 529 MDA 2014
Page 1 of 2
March 28, 2014
CAPTION
Kelsi Weidner
v.
McCann Education Centers, Inc. and Delta Career Education Corporation
Initiating Document: Notice of Appeal
Case Status: Active
Case Processing Status: March 25, 2014
Journal Number:
Case Category:
CASE INFORMATION
Awaiting Original Record
Civil Case Type(s):
CONSOLIDATED CASES
Superior Court of Pennsylvania
Secure
Civil Action Law
IkELATEDCASES
SCHEDULED EVENT
Next Event Type: Receive Docketing Statement Next Event Due Date: April 11, 2014
Next Event Type: Original Record Received Next Event Due Date: May 23, 2014
COUNSEL INFORMATION
Appellant
Pro Se:
IFP Status:
Attorney:
Bar No:
Law Firm:
Address:
McCann Education Centers, Inc. and Delta Career Education Corporation
No Appoint Counsel Status: Represented
No
Phone No:
Receive Mail:
Receive EMail:
Argentieri, Kenneth M.
041468
Duane Morris, L.L.P.
600 Grant St Ste 5010
Pittsburgh, PA 15219--2811
(412) 497-1005 Fax No: (412)497-1001
Yes
Yes EMail Address: kmargentieri@duanemorris.com
Attorney:
Address:
Baird, Courtney L.
750 B Street, Suite 2900
San Diego, CA 92101-4681
Phone No: (619) 744-2285
Receive Mail: Yes
Receive EMail: Yes
Fax No:
EMail Address: cibaird@duanemorris.com
12:12 P.M.
Appeal Docket Sheet
Docket Number: 529 MDA 2014
Page 2 of 2
March 28, 2014
COUNSEL INFORMATION
Appellee Weidner, Kelsi
Pro Se: No Appoint Counsel Status: Represented
IFP Status: No
Attorney: Andreozzi, Benjamin D.
Bar No: 089271
Law Firm: Andreozzi & Associates, P.C.
Address: Andreozzi & Associates PC
215 Pine St
Harrisburg, PA 17101
Phone No: (717) 525-9124 Fax No:
Receive Mail: Yes
Receive EMail: Yes EMail Address: ben@midstatelaw.com
Fee Dt Fee Name
03/24/2014 Notice of Appeal
Superior Court of Pennsylvania
Secure
FEE INFORMATION
Fee Amt Receipt Dt Receipt No Receipt Amt
73.50 03/25/2014 2014-SPR-M-000248 73.50
AGENCY/TRIAL COURT INFORMATION
Court Below: Cumberland County Court of Common Pleas
County: Cumberland Division: Cumberland County Civil Division
Order Appealed From: March 12, 2014 Judicial District: 09
Documents Received: March 25, 2014 Notice of Appeal Filed: March 24, 2014
Order Type: Order Entered
OTN(s):
Lower Ct Docket No(s):13-3681
Lower Ct Judge(s): Hess, Kevin A.
President Judge
Original Record Item
ORIGINAL RECORD CONTENT
Filed Date Content Description
Date of Remand of Record:
BRIEFING SCHEDULE
None None
*DOCKET ENTRY
Filed Date Docket Entry / Representing Participant Type Filed By
March 25, 2014 Notice of Appeal Docketed
Appellant McCann Education Centers, Inc. anc
Delta Career Education Corporation
March 28, 2014 Docketing Statement Exited (Civil)
Middle District Filing Office
l
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
Superior Court of PA
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Superior Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
KELSI WEIDNER
Vs.
MCCAN SCHOOL OF BUSINESS,INC. and DELTA CAREER EDUCATION
CORPORATION
2013-3681 CIVIL TERM
529 MDA 2014
The documents comprising the record have been numbered from No. 1 to 114, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 6/25/2014.
a Buell, Prothonotary
Alma Kostjerevac, Deputy
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date Signature & Title
•
•
•
Commonwealth of Pennsylvania
County of Cumberland Ss,
• I, David D.Buell , Prothonotary
of the Court of Common Pleas in and for said
County, do hereby certify that the foregoing is a
full,true and correct copy of the whole record of the
case therein stated, wherein
•
KELSI WEIDNER
Plaintiff, and MCCAN SCHOOL OF
BUSINESS,INC.and DELTA CAREER EDUCATION CORPORATION
Defendant, as the same remains of record
before the said Court at No. (3- 368( of
Civil Term.S„zq,n Ail ,2O 4
•
In TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court
this 25TH day of JUNE A, D., 2014
Aar
Prothonotary
l Kevin A.Hess President Judge of the Ninth
.Judicial District, composed of the County of Cumberland, do certify that
David D.Buell , by whom the annexed record, certificate and
attestation were made and given,and who,in his own proper handwriting,thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County,was,at the time of so doing,and now is
Prothonotary in and for said County of Cumberland in
the Commonwealth of Pennsylvania,duly commissioned and qualified to all of whose acts as such full faith
and credit are and ought to be given as well in Courts of judicature as elsewhere,and t at the said record,
certificate and attestation are in due form of law and made by t. proper officer.
A A
President Judge
•
Commonwealth of Pennsylvania
County of Cumberland Ss:
David D.Buell , Prothonotary 'of the Court of Common Pleas in
and for the said County. do certify that the Honorable Kevin A.Hess
by whom the foregoing attestation was made,and who has thereunto subscribed his name,was,at the time
of making thereof,and still is President Judge of the Court of Common Pleas,Orphan'Court and Court of
Quarter Sessions of the Peace in and for said County,duly Commissioned and qualified;to all whose acts
as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF, I have hereunto
set my hand and affixed the seal of said Court this
• 25TH da of JUNE A.D. 2014
dlIPV
Prothonotary
No. Term 19
No 2013-3681 CIVIL TERM
•
529 MDA 2014 •
• KELSI WEIDNER
Versus
MCCAN SCHOOL OF BUSINESS,
INC. and DELTA CAREER
EDUCATION CORPORATION
EXEMPLIFIED RECORD
From Cumberland County
Debt, . . S Int.
from
Costs •
•
•
Entered and. Filed
•
•
Prothonotary.
Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
Cumberland
county ('' in the Commonwealth of Pennsylvania
2013-3681 CIVIL TERM
to No. 529 MDA 2014 Term, 19 is contained the following:
COPY OF Appearance DOCKET ENTRY
KELSI WEIDNER
• Vs.
MCCAN SCHOOL OF BUSINESS, INC. and DELTA CAREER EDUCATION
CORPORATION
**SEE CERTIFIED COPY OF DOCKET ENTERIES**
PYS511 Cumberland County Prothonotary' s Office Page 1
Civil Case Print
2013-03681 WEIDNER KELSI (vs) MCCANN SCHOOL OF BUSINESS ET A
Reference No. . : Filed • 6/26/2013
Case Type • CONTRACT - OTHER Time 11: 09
Judgment . 00 Execution Date 0/00/0000
Judge Assigned: HESS KEVIN A Jury Trial. . . .
Disposed Desc . : Disposed Date. 0/00/0000
Case Comments Higher Crt 1. : 529 MDA 2014
Higher Crt 2 . :
********************************************************************************
General Index Attorney Info
WEIDNER KELSI PLAINTIFF VERCHICK HEATHER E
215 PINE STREET
SUITE 200
HARRISBURG PA 17101
MCCANN SCHOOL OF BUSINESS INC DEFENDANT ARGENTIERI KENNETH M
346 YORK ROAD
CARLISLE PA 17013
DELTA CAREER EDUCATION DEFENDANT ARGENTIERI KENNETH M
CORPORATION
4525 COLUMBUS STREET
SUITE 101
VIRGINIA BEACH VI 23462
• ********************************************************************************
* Date Entries *
********************************************************************************
p FIRST ENTRY
/- Iq 6/26/2013 COMPLAINT - CIVIL ACTION - BY HEATHER E VERCHICK ATTY FOR PLFF
7/08/2013 SHERIFF' S RETURN - DATED 06/27/13 - COMPLAINT 7 NOTICE SERVED ON
DEFT MCCANN SCHOOL OF BUSINESS IN AT 346 YORK ROAD CARLISLE PA
17013
SHFF COST - $34 . 78
AO-a( 7/16/2013 AFFIDAVIT OF SERVICE - COMPLAINT SERVED ON DEFT DELTA CAREER
EDUCATION CORPORATION AT 4525 COLUMBUS ST STE 101 VIGINIA BEACH VA
23462 - BY HEATHER E VERCHICK ATTY FOR PLFF
12-'378/23/2013 PRELIMINARY OBJEITIONS AND
DTYFPETITION TO COMPEL ARBITRATION - BY
K3e-579/11/2013 AMENDED CLASS ACTION COMPLAINT WITH NOTICE TO DEFEND - BY BENJAMIN
D ANDREOZZI ATTY FOR PLFF
58- 7310/01/2013 PRELIMINARY OBJECTIONS AND PETITION TO COMPEL ARBITRATION - BY
KENNETH M ARGENTIERI ATTY FOR DEFTS .
74-4)10/21/2013 PLFF'S RESPONSE TO DEFTS ' PRELIMINARY OBJECTIONS AND PETITION TO
COMPEL ARBITRATION - BY HEATHER E VERCHICK ATTY FOR PLFF
,EI 12/02/2013 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT PRELIMINARY
OBJECTIONS - BY HEATHER E VERCHICK ATTY FOR PLFF
23- 616712/06/2013 MOTION FOR ADMISSION OF COURTNEY L BAIRD PRO HAC VICE - BY KENNETH
M ARGENTIERI ATTY FOR DEFTS
R2112/12/2013 ORDER OF COURT - 12/11/13 - IN RE: MOTION OF COURTNEY L BAIRD PRO
HAC VICE - *GRANTED* - BY THE COURT EDWARD E GUIDO J
COPIES MAILED 12/12/13
/053/12/2014 3/12/2014 OPINION AND ORDER - DATED 3/12/14 - IN RE DEFENDANTS ' PRELIMINARY.
OBJECTIONS AND PETITION TO COMPEL INDIVIDUAL ARBITRATION - THE
PRELIMINARY OBJECTIONS OF THE DEFENDANTS ARE OVERRULED AND THE
PETITION IS DENIED - BY THE COURT KEVIN A HESS PJ - COPIES MAILED
I 3/12/14
la - /ll 3/24/2014 NOTICE OF APPEAL TO SUPERIOR COURT - BY KENNETH M ARGENTIERI ATTY
FOR DEFTS
/12.- //43/31/2014 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 529 MDA 2014
PYS511 Cumberland County Prothonotary's Office Page 2
Civil Case Print
2013-03681 WEIDNER KELSI (vs) MCCANN SCHOOL OF BUSINESS ET A
Reference No. . : Filed • 6/26/2013
Case Type • CONTRACT - OTHER Time 11: 09
Judgment . 00 Execution Date 0/00/0000
Judge Assigned: HESS KEVIN A Jury Trial. . . .
Disposed Desc. : Disposed Date. 0/00/0000
Case Comments Higier Crt 1. : 529 MDA 2014
Higher Crt 2 . :
6/25/2014 NOTICE OF DOCKET ENTRIES MAILED TO HEATHER E VERCHICK ATTY
KENNETH M ARGENTIERI ATTY
LAST ENTRY
********************************************************************************
* Escrow Information
* Fees & Debits Beg Bal Pmts/Adi End Bal
******************************** ******** ****** *******************************
COMPLAINT 65 .25 65 .25 . 00
TAX ON CMPLT .50 . 50 . 00
SETTLEMENT 9 . 50 9 . 50 . 00
AUTOMATION 5 . 00 5 . 00 . 00
JCP FEE 23 . 50 23 . 50 . 00
PREACIPE ARGUME 19 . 75 19 . 75 . 00
APPEAL HIGH CT 57 . 00 57 . 00 . 00
180 . 50 180 . 50 . 00
********************************************************************************
* End of Case Information
********************************************************************************
TRUE COPY FROM RECORD
In Testimony whereof, I here unto set my hand
and the seal of said Court at Carlisle,Pa. ,
This s2day of ,20 7
Prothonotary
"Y� 6��
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
Superior Court of PA
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Superior Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entife record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
KELSI WEIDNER
Vs.
MCCAN SCHOOL OF BUSINESS, INC. and DELTA CAREER EDUCATION
CORPORATION
2013-3681 CIVIL TERM
529 MDA 2014
The documents comprising the record have been numbered from No. 1 to 114, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitte• o the Appellate Court/ 6/25/2014.
11114,7
David it u- , Protho otary
Alma Kostjerevac, Deputy
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date Signature & Title
Received In Superior Court
JUN 2 5 2014
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELSI WEIDNER,
Plaintiff,
vs.
MCCANN SCHOOL OF BUSINESS INC.
and DELTA CAREER EDUCATION
CORPORATION,
Defendants.
Benjamin D. Andreozzi
PA ID No. 89271
ANDREOZZI & ASSOCIATES
215 Pine Street, Suite 200
Harrisburg, PA 17101
Phone: 717-525-9124
Fax: 717-525-9143
Attorney for Plaintiff, Kelsi Weidner
DMI \5026322.1
Docket Number 13-3681 Civil
CLASS ACTION
STIPULATION TO SUPPL1VIh1T -114
THE RECORD
Kenneth M. Argentieri
PA ID No. 41468
DUANE MORRIS LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Phone : 412-497-1005
Fax: 412-497-1001
Courtney L. Baird (pro hac vice)
DUANE MORRIS LLP
750 B Street, Suite 2900
San Diego, CA 92101-4681
Phone: 619.744-2285
•
Attorney for Defendants, McCann
Education Centers, Inc. and Delta Career
Education Corporation
COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
KELSI WEIDNER ,
Plaintiff,
vs.
MCCANN SCHOOL OF BUSINESS INC.
AND DELTA CAREER EDUCATION
CORPORATION,
Defendants.
Docket Number 13-3681 Civil
CLASS ACTION
STIPULATION TO SUPPLEMENT THE RECORD
Pursuant to Pa. R. App. P. § 1926(b), Plaintiff, Kelsi Weidner, and Defendants, McCann
Education Centers, Inc.1 and Delta Career Education Corporation, stipulate that the Record in
this case should include Plaintiff's Brief in Opposition to Defendants' Preliminary Objections
and Petition to Compel Arbitration ("Plaintiff's Brief'), a true and correct copy of which is
attached to this Stipulation. Plaintiff filed and served Plaintiff's Brief in this Court on December
12, 2013; however, it was not listed or included in the certified record delivered to the Superior
Court in connection with the current appeal.
1 McCann Education Centers, Inc. has been incorrectly identified as McCann School of
Business, Inc. in the Original Complaint.
WHEREFORE, the Parties request that the Clerk transmit Plaintiff's Brief to the
Pennsylvania Superior Court as required by Pa. R. App. P. § 1926(b) and (c).
Respectfully submitted,
Benjanlih D. Andreozzi
PA ID No. 89271
ANDREOZZI & ASSOCIATES
215 Pine Street, Suite 200
Harrisburg, PA 17101
Phone: 717-525-9124
Fax: 717-525-9143
Attorney for Plaintiff, Kelsi Weidner
Date: September 2 2014
2
Kenneth M. gentieri
PA ID No. 41468
DUANE MORRIS LLP
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Phone : 412-497-1005
Fax: 412-497-1001
Courtney L. Baird (pro hac vice)
DUANE MORRIS LLP
750 B Street, Suite 2900
San Diego, CA 92101-4681
Phone: 619.744-2285
Attorney for Defendants, McCann Education
Centers, Inc. and Delta Career Education
Corporation
ATTACIEVIENT
Benjamin D. Andreozzi
Attorney ID #89271
Heather E. Verchick
Attorney ID #201310
ANDREOZZI & ASSOCIATES, P.C.
215 Pine St., Ste. 200
Harrisburg, PA 17101
717-525-9124
Ben@midstatelaw.com
Attorney for Plaintiff
KELSI WEIDNER
vs.
Plaintiff
MCCANN SCHOOL OF BUSINESS,
INC.
and
DELTA CAREER EDUCATION
CORPORATION
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No. 13-3681 Civil
CLASS ACTION
PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANTS' PRELIMINARY
OBJECTIONS AND PETITION TO COMPEL ARBITRATION
AND NOW comes the Plaintiff, Kelsi Weidner, by and through their attorneys Andreozzi
& Associates, P.C. and on behalf of all parties in the prospective class and submits this
Memorandum of Law in opposition to Defendants' Preliminary Objections and Petition to
Compel Arbitration as follows:
I. STATEMENT OF FACTS
In December of 2011, Plaintiff, Kelsi Weidner spoke with a representative of McCann
Education Centers, Inc.' ("McCann") about enrolling in the Medical Lab Technician Program
'McCann Education Centers, Inc. is incorrectly identified in the case caption as McCann School
of Business, Inc.
("Lab Tech Program") at the Carlisle campus. McCann's representative advised Plaintiff that she
would not have a problem getting a job, and would just have to take the certification exam in
order to become a Certified Medical Lab Technician after she graduated from McCann. Plaintiff
was also advised that McCann would help her take the certification exam and study for it. As a
result of these representations, Plaintiff enrolled in the Lab Tech Program in February of 2012.
Plaintiff later learned that the Lab Tech Program was not properly accredited, and that she would
not be able to sit for her certification examination to become a certified lab technician.
As a result of McCann's misrepresentations, Plaintiff, along with fifteen other students
who were enrolled in the Lab Tech Program sought to bring a legal action against McCann. On
June 26, 2013, Plaintiff filed a Complaint on behalf of herself, the fifteen additional students who
were seeking compensation for McCann's misrepresentations and all other parties that were
similarly situated, claiming that McCann breached the contract, violated the Pennsylvania Unfair
Trade Practices and Consumer Protection Law, and violated the Federal Racketeer and Corrupt
Organizations Act. Defendant McCann filed Preliminary Objections and a Petition to Compel
Arbitration to Plaintiffs Complaint on August 22, 2013.
After filing the Complaint, undersigned counsel and Plaintiff were contacted by
approximately twenty-six individuals who had enrolled in the Surgical Technology ("Surgical
Tech Program") at the Carlisle campus. They too were told by McCann representatives that the
Surgical Tech Program was accredited, and they would be able to sit for the relevant certification
exam. However, these individuals later learned that the Surgical Tech Program at the Carlisle
campus was not properly accredited, and they would not be able to sit for the relevant
certification exam to become a Certified Surgical Technologist. As a result, Plaintiff amended
her complaint to include students who were enrolled in the Surgical Tech Program. Thereafter,
Defendants filed Preliminary Objections and Petition to Compel Arbitration to Plaintiff's
Amended Complaint. Plaintiff files the within brief in opposition to Defendants' Petition.
II. LEGAL ARGUMENT
Preliminary Objections may be filed by any party to a pleading pursuant to Pennsylvania
Rule of Civil Procedure 1028. In reviewing the grant or denial of preliminary objections, the
standards that the Courts must adhere to is as follows: "All material facts set forth in the
Complaint as well as all inferences reasonably deducible therefrom are admitted as true." Sherk
v. County of Dauphin, 531 Pa. 515, 516-17, 614 A.2d 226, 227 (Pa. 1992) (citations omitted).
Additionally, the question presented is whether "on the facts averred the law says with certainty
that no recovery is possible." Id. When a doubt exists as to whether recovery is possible, the
doubt should be resolved in favor of overruling the Preliminary Objection. Id.
In determining whether a Petition to Compel Arbitration should be granted, the Courts
look to contract law to determine whether or not the case should be submitted to arbitration. In
doing so, the Courts employ a two part test: 1) did the parties enter into a valid and binding
arbitration agreement; and 2) does the dispute at issue fall within the scope of the arbitration
agreement. Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa Super. 2012) (citations omitted).
A. PLAINTIFF AND OTHERS SIMILARLY SffUA ED ARE NOT PARTIES
TO A VALID AND BINDING ARBITRATION AGREEMENT
The Court's first consideration is whether or not the parties entered into a valid and
binding arbitration agreement. Id. In order to determine whether the parties agreed to arbitrate
their disputes, the courts must interpret the contract for an express agreement to arbitrate,
otherwise arbitration cannot be compelled. Gaffer Ins. Go. v. Discover Reinsurance, Co., 936
A.2d 1109, 1113 (Pa. Super. 2007). Under contract interpretation law, if a provision is located
after a party's signature, the provision must be both conspicuous and must contain noticeable
reference to the additional terms. Jaskey Finance and Leasing v. Display Data Corp., 564
F.Supp. 160, 165 (E.D. Pa. 1983). A term is considered conspicuous when it is "so written,
displayed or presented that a reasonable person against which it is to operate ought to have
noticed it." 13 Pa. C.S.A. §1201. It includes "a heading in capitals equal to or greater in size
than the surrounding text, or in contrasting type, font or color to the surrounding text of the same
or lesser size." Id. The reasoning behind these requirements is that a party to a contract must be
put on adequate notice that they are relinquishing substantial rights. Moscatiello v. Pittsburgh
Contractors Equipment Co., 407 Pa. Super. 363, 370, 595 A.2d 1190, 1194 (1991).
In the instant matter, there is no evidence that Plaintiff expressly agreed to the relevant
arbitration provision. The arbitration provision was located on the fourth page of the Agreement,
but Plaintiff signed and initialed provisions on the first and second page. A copy of the
Agreement is attached hereto as Exhibit "A." A review of the first two pages shows that there is
no specific reference to additional terms on pages three and four of the Agreement. The
paragraph above Plaintiffs signature references, in inconspicuous fine print, that she has read all
of the Agreement, but it is not specified the number of pages contained in the Agreement.
Additionally, the arbitration provision is not conspicuous as defined by Permsylvania law, since
the heading and text are the same size as the surrounding text and there is nothing to draw a
reasonable person's attention to the provision. Therefore, Plaintiff was not put on adequate
notice that she was relinquishing her right to a trial by jury, and she, and others similarly
situated, are not parties to a valid and binding arbitration agreement.
THE DISPUTE AT ISSUE IS NOT WITHIN THE SCOPE OF THE
ARBITRATION PROVISION
Even if Plaintiff and others similarly situated were parties to a valid and binding
arbitration agreement, the dispute at issue is not within the scope of the arbitration provision.
• The scope of the arbitration provision must be determined by the intention of the parties. Setlock
v. Pinebrook Personal Care and Retirement Center, 56 A.3d 904, 907 (Pa. Super., 2012)
(citation omitted). Parties to a contract cannot be compelled to arbitrate a given issue unless
there is an agreement between them to arbitrate that issue. Id (citation omitted). Therefore,
arbitration agreements are to be strictly construed and cannot be extended by implication. Id.
(citation omitted).
In the instant matter, Plaintiff never agreed to submit the issue of accreditation of certain
programs to arbitration because she was misled into believing that the accreditation of the
programs was not an issue that would need to be arbitrated. This is distinct from issues such as
nonpayment of tuition or course action and corresponding tuition liability that were contemplated
by the parties at the time of the agreement, and therefore may be subject to an enforceable
arbitration provision. Rather, the fact that the program in which they were enrolling was not
properly accredited was not contemplated at the time of the signing of the Agreement because it
was a fundamental and reasonable assumption based upon Defendants' representations. If
Plaintiff and others similarly situated had known that the program in which they were enrolling
was not properly accredited, then they never would have entered into the Agreement with
McCann. As a result, Plaintiff, and others similarly situated did not agree to arbitrate the issue of
accreditation of their chosen program. Since there was no agreement to arbitrate that issue, the
arbitration provision does not apply in this matter, and Defendants' Petition should be denied.
C. THE ARBITRATION PROVISION IS UNCONSCIONABLE AND DENIES
PLAINTIFF AND OTHERS SIMILARLY SITUATED THEIR RIGHT TO
SEEK REDRESS FOR DEFENDANTS' FRADULENT
MISREPRESENTATIONS
Regardless of the above arguments, the arbitration provision is unconscionable and
denies Plaintiff and others similarly situated their right to seek proper compensation for
Defendants' fraudulent misrepresentations. In Pennsylvania, a contract or term is unconscionable
"where there was a lack of meaningful choice in the acceptance of the challenged provision and
the provision unreasonably favors the party asserting it." Salley v. Option One Mortgage Corp,
592 Pa, 323, 331, 925 A.2d 115, 119 (2007) (citations omitted). These are termed as procedural
and substantive unconscionability, respectively. Id.
Procedural unconscionability often refers to adhesion contracts, which are standard form
contracts prepared by one party to be signed by a party in a weaker position, usually a consumer
who adheres to the contract with little choice about the terms. Black's Law Dictionary 342 (8th
Ed. 2004). These contracts are often considered unconscionable. Salle', 592 Pa. at 331, 925
A.2d at 119.
In the instant matter, the arbitration provision that was prepared by Defendants is both
procedurally and substantively unconscionable since Plaintiff had to adhere to the contract with
little choice about the teaus and it unreasonably favors Defendants. The provision is
procedurally unconscionable since the contract was McCann's standard form contract that they
provide to each student. Plaintiffwas not given an opportunity to modify the terms of the
contract. Furthermore, McCann is a large corporation that manages schools in approximately
seven Pennsylvania cities whereas Plaintiff is a relatively unsophisticated consumer who was
seeking an education from the Defendants. This fact alone shows that McCann had a stronger
bargaining position as well as the requisite knowledge for drafting contracts whereas Plaintiff
was in a weaker bargaining position and was seeking knowledge from the Defendants. As a
result, Plaintiff did not have a choice in the terms of the contract and did not have a choice in the
agreement to take any matters to arbitration. Thus, this constitutes an adhesion contract, and the
arbitration provision is unconscionable since Plaintiff did not freely agree to arbitrate all disputes
due to her lack of meaningful choice on the terms of the contract.
This provision is also substantively unconscionable since it denies Plaintiff and others
similarly situated the right to seek compensation for Defendants' fraudulent misrepresentations
that the various programs at the Carlisle campus were properly accredited. To date, undersigned
counsel has approximately forty-two current and former students of McCann who were promised
a properly accredited program and the opportunity to sit for the relevant certification exam but
are still unable to become certified in their chosen field. If McCann's arguments are accepted,
then the arbitration panel will have to hear the same case at least forty-two times, which is a
waste of judicial resources.
Furthermore, undersigned counsel is aware of other individuals who have either brought
cases against McCann in other jurisdictions or plan on bringing cases against McCann in other
jurisdictions. It is unconscionable to continually clog up the arbitration system and waste those
resources with the same case brought by different people. Arbitration is preferred in some cases
because it is considered to be faster and less complicated than a civil trial. However, if Plaintiff
and others similarly situated are forced to arbitrate their cases individually, then arbitration will
become a much slower and more complicated process due to the sheer number of individuals
who are seeking compensation. This is an unconscionable use of arbitration and should be
denied. Thus, Plaintiff requests that this Honorable Court deny Defendants' Petition to Arbitrate
since the arbitration agreement is unconscionable and prevents the Plaintiff and others similarly
situated to seek compensation for McCann's fraudulent representation. -
ITT. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Honorable Court deny
and dismiss DefendantsPreliminary Objections and Order Defendants to file an Answer to the
Amended Complaint within twenty (20) days.
Date:
Respectfully submitted,
idfig//3
By:
Benjamin D. Andreozzi
PA# 89271
Heather E. Verchick
PA #201310
Andreozzi & Associates, P.C.
215 Pine Street, Suite 200
Harrisburg, PA 17101
p: 717.525.9142
f: 717.525.9143
Counsel for Plaintiff
EXHIBIT A
MCCANN SCHOOL OF BUSINS ENROL114ENtr AGREEMENT
346 York Road
Carlisle, PennsyNania 17013
Phone; (717)21873400 Fax: (717)218-3499
i-Oetitti INFORMi6101
........
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• fee. 440 •Erasitiationfeet• tea 'Tetheoieav fee feer smarten; 315
Ti$11:iort Der 'c'reilt1 PPX0-2017 fee oar aecitt 317 fiook fegfeerneartertJ4. 691
tslimated t,Top ft fee chanuis $32520
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stift ttab4 _2/21/12 .
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4
This:AGREEKENT made and entered into betWeen MCCANN SCHOOL OF .EUSINESS OD TECHNOLOGY, Carlisle,
PennsylVania, hereinafter referred to as:the SCHOOLi:and the sTuDgNt whose name appears 013 Oar One .(1) ofthis
AGREEMENT, It is understood and agreed that this AGREEMENT cansiiintes the entire contract between the Parties and
that no representations other titan !herein contained live been made. Any alterations cancellations, ar revocations of this
AGREEVIENT,:nOt Otherwise :previded herein, must besin writing and signed by the STUDENT and the Scheel Direct or.
In cases orFdera1 Financial Aid, the appropriate agency document governs pay -backs and any interest Charted will be in
accordance with the regulations established by the II:S. DO ti:raerit Of EduCatiOn anchor the "Appropriate Government
Agenciee.
This Otkop.mbiNiT. AoREF4N,Nicgrapties With the Rules andRegulations df the Ccanmanweilth of PerinsYlVaiiii a, State
board of:Private:Licensed Sehogis.
. .
UP01144.1.1111Ment;. Ole:MBE-NT willpaypay a ottertinse..k.egis' .tratianFep of 540. The STUDENT agrees ta. the fallowing,
fmarteial tiamS.Sithject totheCANCELLATIONANDSETIIEMENTFOLIC? on 1ageTwa,(2) of this ACME:KENT..
The STUDENT Understands thatpayments are duan Advance of eath.paynientpetiodon the fustday Of:themonth., and
failure to tortiply with the payment schedule:will be cause for suspension at training:it is further understood that:paysiient
liabihty rests with the STUDENT regardless ofthe sOurceof fur*.or tniancial.gd*Which May be. made available,
if the STUDENT: NIS to pay any ofthe amounts duetp.the.institittion. lao4q..Ns AcRzEKENT *4p they are due the
STUDENT will also -pay the-Institutien for, all costs and expenses,..including.reasonable attorney's fees that areincurredby
the:Institution-in the collecticrit of:these amounts. Ifthis AGREEMENTis. referred for collection to agency thatis: subject
to theFair Debt Collection Practices Act, the STUDENT will pay. those collection costs Which do not exceed 25•::per -cent of
the-unpaidamoilitt •
TLiOdel**4 ifa:gove.rs IrnOt guaranteed student idea is provided and 1 fait to repay it,: my Meanie taX.:reptind.conidi be taken
away..hal..Wetild not be able to set other student Anapcial ad Or.geventment housing:assistanee Unfit I pay offthe loan.
1 further understand that.ift am apPlyinifartmanCial assistance, neither the.:amanntof financial assistance nor pertaint.
schedule.can be determined arthiathne:'As soon as the amount of financ*1 assistance has been deteznmed a Retail
Installment Contract (Ilk) Shall be executed, which will, disclose a schedule afpwrient.far tuition and es not c oiNered by
fulancialaSsiatince compliance with state and federa1 aw..4&(Studeas
The STIMENTwill be given a reasanable extension of time tOreport in case ofillness, or any act of God -that Wo1.41d
necessitate adelaY in Starting.
The SCHOOL agrees to provide training :for the trital credits. comprising the pro/gun as titled:abbve.,Attlie cancl:asinti dine'
progratn.,- the STUDENT will be awarded a t?iplonna, an Assothate in.Speeializ.ed.Business Degree, or an Assacial e n
SpeCialized Technology Degree provided the STUDENT has met the scholastic and tuition regairettents..
The STUDENT must be:available:for classes. betWeen.8:00 a.rd. and 6:06..p.M. for Day7Mid-.Day :classes,. and. be.,tween 5.30.
pan 'and 1100 p.m..for Evening classes an the days noted in:this AGREEMENT.: V-fe (Student's Initials)
The SCHOOL. is relieved.and released. of all claims by the STUDENT that may ..arise as a result of the SCHOOL:.'S inabilityto
performhereunder as a.res-uit of an act of God, or any cithermatter bey.and.the contrel. of the SCHOOL
TheSTUi3ENTagrees to maintain regular attendance and any w2flfihlitrestularity, violation -or infringement.of -Ube
SCHOOL'S plies and regulations or failure to maintan' satisfactory grades. mayresult in immerliatedismissal or suspension
frOrn•the SO -TOOL -at the option Of the SCHOOL. STUDENTS who are dismiss.ed will be governed by the saaie refund
policy as students who interrupt training.
http',//deltatoolp/DocuinentAdminjDocttment.aspx 2/6/2012
Page 2 of 4
STUDENTS who fail to maintain a passing grade will be required to repeat that course at the rate of tuition stipulated in
his/her ENROLLMENT:AGREENMENT.
The STUDENT also understands that if he/she interrupts for more than one term of enrollment, he/she will be subject to the
prevailing tuition rate in effect at the time training resumes.
The SCHOOL reserves the right with prior notice to atter hours and/or days of attendance and/or starting dates and/or course
(s) within reason when deemed necessary. Such changes will not alter the tuition costs or refund policy stated in this
AGREEMENT. The school also reserves the right to increase tuition costs with prior notice of at least 60 days. If conditions
beyond the control of the school require postponement of a starting date or temporary suspension of classes, appropriate
adjustments will be made to provide STUDENTS all of the instruction to which they are entitled under the terms of this
AGREEMENT. Students Who have enrolled huthave not started attending the SCHOOL wil1, upon request, be issued a
refund of monies paid if postponerhent of classes exceeds one.quarterlpayment period. VIA) (Student's Initials)
The STUDENT understarids that absence from a regularly scheduled class DOES NOT relieve him/her of tuition liability.
Tlte°SCHOO:L will not release certified hours or transcripts to the licensing board or other schools Unless all financial and
contractual obligations have been met. An official transcript maybe provided to any student who withdraws if the above
financial obligations have beensatisfied.
I. understand; that if l do not meet the Minimum requirement for the Math and English assessments I will be required to take
Math and/or English foundations. STUDENTS needing foundations courses will also be charged at the rate of tuition
stipulated in his/her Enrolh»ent Agreement. 0,{_J (Student's Initials)
I understand thatMCCANN SCHOOL OF$IJSINESS AND TECHNOLOGY is accredited by the Accrediting Council for
Independent Colleges and Schools, but does not guarantee the transfer ofcredits to other colleges or universities. The transfer
of credits is,.solely at the discretion of each institution_ I understand that the program I am applying for is designed to be an
end in itself, and :credits gained in any program may or may not be transferable.
PLACEMENT ASSISTANCE
MCCANN SCHOOL OF BUSINESS AND TECHNOLOGY DOES NOT GUARANTEE :JOB PLACEMENT.
HOWEVER,: IT DOES PROVIDE EiVlPLOYMENT ASSISTANCE TO ITS CURRENT AND GRADUATE
STUDENTS THROUGH OUR CAREER SERVICES DEPARTMENT; IT IS FURTHER ACKNOWLEDGED
THAT A COPY (*THIS AGREEMENT AND TIfE CATALOG DESCRIBING THL.PROGRAM
PREREQUISITES; FOR ENROLL .SCHEDULE OF TUITION PAYMENTS HAVE BEEN RECEIVED
AND READEY THE APPLICANT. , „ :(Student's Initials)
PROVISIONAL STUDENT
To be Officially accepted,; newly enrolled students, an or after June 6;'2011, must remain continuously enrolled in school for
the first28 days of the program. :Provisional Student — A provisional student is one who has been accepted for enrollment
pending the s.thation of one or more conditions that are set at the time of enrollment Examples of conditionsinclude, bat
are not :limited to, receipt of valid proof of high school graduationor equivalent; receipt of proof that student isnot in default
or does not currently have student. loan debt in excess of S20,000; a fust time student who must be continuously enrolled for
the first 2g days of the.prograrn; a first time student who: must be in good standing in all of their classes at the end of the
provisional enrollment period. Students who are accepted provisionally are given the conditions) they must satisfy, in
writing, at the time of enrollment.
IF UNDER iEGAI. AGF, HAVE PARI
I certify that as Whxniattodry ick about me is amnia te NV that Y ham read all pages of tlus IMFORM TION AND SIGN t1S INEt
AGREEMENT and *Ili. abide,by Its pmvhlcxcs. i have OpIred 3 c ?e!y it1ed-1n may ol.this , arta accept Its provtslaas.
AGREEMENT. i.'the buyer, may Om -el this sale atAiri tbme prior>b ttd*ght of the fifth (5) calendar
day atter,tre date:ar this transaction.. Paths.* 10 exercise this bptlon; he*ati r till not Matfett watt a
'Olaf Impedes aorta the mai setter you may pot rcc . This AGREEMENT is not bbt St anal accepted HARE IN RILL (PLEASE PRIM/)
)ii Tai tbng.by the spool_
.7 OJ .�,,,,,,,
tE SIQi+TURE cf.APP•LICAWT
REFUND POLICIES
Re ria of Title IV (R2T4) Policy
>....,.
/Mot tatnnlcillnrltmentAdmin/Document.aspx
ADDRESS CRY STATE ZIP
TELEPHONE NuM8ER
DATE SIGNATI.RE OF PARENT OR GUARDIAN
2/6/2012
Page 3 ef 4
Definition of Withdrawal for Return to Title TV Piirposes
For purposes of calculating ketuni to Title IV, a student is considered to have withdrawn from a payment period Or period of
enrollment if—
(A)In the case Of progarn that is measured in credit hours, the' student does not complete all the.days in the payMent
period or period of enrollment that the student was scheduled to complete;
(B):Tn the -case of a program that is measured in clock hours, the student does not compete all of the clock 'hours and weeks
of instructional time in the payment period or period of enrollrrient that the student was scheduled to cornplete;nr
(C) For 3Sudetit in anon -term or nonstandard -term program, the student isnot scheduled to begin another Course within a
payment -period or period of enrollment for none than 45 calendar days after the end of the module the : student ceased
attending.
State Refund Policy
Refunds Prior to the Commencement of Classes:
The 'r.egiStrition- fee is fully: refundable if -a student requests o4ndellatiOn within five(5) Calendar day S of sigung die
enrollment agreement. A-reqUest.fOr cancellation that is not made in writing shall beeonfiTnid.iii.Wtiting bythO Stndout.
within an additional period of five (5) calendar days. All monies paid by an applicant will he refunded ifirequesied in writing
within ten (10) days of the ern -Olin -rent date but before the scheduled classes 'begin.. Iferi applicant isnot accepted for
admission, all -tuition monies paid:Will be refitrided. If an applitent. cancels after ten (10) days of enroltthertt„ bin before the
scheduled classes begia, the Schoolwill infundramonies paid.
Refunds After Cotantencement of Classes.by Students
kncis:williie based on the percentage:CoMpleted Of -the period charged as -follows:
A4endeel. Reftind:percentage
.Upto 1.0%
>I0% ..up to15% 80%
>15%4 up to 25'ro. 70%
>;41.4;4.tip 0 5.04. 60%
>35%.& -tip' to 40% 50%
. . ,
>40% &tip to 50% 40%
>50% Ivo
MlthatgeS and refunds are calculated nsing the .shident's-last day of recorded attendance.
RETuRN OF 'UNEARNED 1:11LE 1V FUNDS
The Scheel must return the lesser cif the amount of Title -IV funds the student does not earn, or the amount of institutional
costs that the shicient incurred for thepayxnetrt Period or period of enrollment multiplied by the percentage of funds that was
not eatned.
The student Or parerit, ifa Feder4PLUS loan) must return or repay; as appropriate:.
Any Tiile IV loan funds in accordance with the teems of the loan, and
▪ The remaining unearned Title fif grants (not to exceed 50% of the grant) as an overpayment of the ant
Examples of the 'getup of Titl IV calculation are available upon request in the Financial Aid Office.
ORDER OF.FWIIIRO OF SFA PROGRAM FUNDS
Tide IV funds creditOio outstanch:ng.loan, balances for the payment period or period of -enrollment for which a return of
funds is required must be returned:in the .following order:
▪ 'thisubSiciiiqd StaffordLoan Program
• Subsidized Stafford Loan Program
• Unsubsidiied Direct Stafford loans (other than PLUS loans)
Subsidized Direct Stafford loans
• Federal Perkins Lean Program
I .2 fr1"
'114 tlr-47
Page 4 of 4
.. .
• 'Federal PLUS loans
• FederaiDirect PLUS loans
if funds remain after repaying all loan amounts, thoseremaining funds must be credited in the following order.
• Federal Pell Grants for the payment period for which a return of funds is required
• Federal Supplemental HOCM10.112ii Opportunity Grant (FSEOG). for Which a return of funds is required
Other assistancennder this Title for whith a return of funds is required
Students will be notifted ofany refunds due to a lender on their behalf through the mailed exit interview material. Refunds to
any of the Tide IV or State programs will be paid:within 45 days from the Withdrawal/termination date_
Note: Students receiving:educational funding through McCann's Installment Payment Plan must sign the
'Installment Note and Disclosure Statement". Such note is incorporated as part of this' Enrollment _Agreement by
referenge,
ARBITRAtiON
You (the stinierti)and McCann School -of Business and Technology agree that any 'dispute arising out of our relating to this.
enrollment agreement your enrollment or your attendance at McCann School ofBusineas and Technology; whether such
rHspute'arises during or aftek your attendance and whether the dispute is based on contract, tort, statute, or otherwise, sinil be
resolved by hinding :arbitration Mthe city and county:in which the school is located within the state of Pennsylvania, You
(the student): and McCann School ofBusiness and Technology each farther agrees that this arbitration:provision provides
e1.611PartYwxth xc1uswe remedy for redress ofany grievance or resOlution of in dispute arising out of this Agreement,
ANDEACIi..PARTY EXPRESSLY WAIVES ANY...RIGHT, INCLUDING WITHOUT LEVIITATION THE RIGHT TO •
TRIAL.BY JURY, IT MIGHT tAVETO SEEK:REDRESS 1N ANY FEDERAL, STATE ORLOCAL COURT OR
OTHER FORUM except for an action to enforce in ontirt an arbittationaviardrendere.d to this Agreement.
COMPLAINT PROCEDURE
I ..lri the:event of qtiestions or concerns about thole:tins of this agreement you May comaefthe Director ofthe School at
address on 'Page One (I) of this Agetinent. Ifit is not resolved then contact Delta Career Education Corporatitin, 4525
Columbus 8trCet,Buite:101,'Vitirtia•Beach,Virginia 23462-6701..
2. McCann School of Batiness. and Technology is:licensed by the Bureau of PoStsecondaly and.Adult Education. Questions .
orconcerns.thatare not satisfactorily resolved by the persons designated:above may be brought to the attention pfthe:Bureau
ofPestsecondaryandAdultEducation, Division of Higher and Career.Education, Pennsylvania Department of Education,
333-MaricetE1reet, Harrisbuti,PA,..17120;0333.
3.- Also;:1 understand that if I require coMpaMbleprOgrarn infotmation related to tuition and program length,1 Can contact the
Coma .for indeptrident Colleges' and Schools, 750.First Street NE, Suite 980; Washington, DC 26002422.
Version 3 as of 1/18/2012
1,44,.. • 1/.44.1+.4,-...-.1„..trt",: din + A frtn."111rn.&rti- 0,yrsv;
9111.111
CERTIFICATE OF SERVICE
I, Heather E. Verchick, Esquire, hereby state that I have this day caused to be served a
true and correct copy of Plaintiffs Brief in Opposition to Defendants' Preliminary Objections
and Petition to Compel Arbitration to all counsel of interest at the address below named, via
electronic communication:
Date: 1? (1; /(3
Kenneth M. Argentieri
Duane Morris LLP
600 Grant Street
Suite 5010
Pittsburgh, PA 15219
By:
Benjamin D. Andreozzi
Attorney ID #89271
Heather E. Verchick
Attorney ID #201310
215 Pine St., Ste. 200
Harrisburg, PA 17101
p: (717) 525-9124
f: (717) 525-9143
Attorney for PIaintiff
SUPPLEMENTAL
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931.(C)
Superior Court of PA
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Superior Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
KELSI WEIDNER
Vs.
MCCAN SCHOOL OF BUSINESS, INC. and DELTA CAREER EDUCATION
CORPORATION
2013-3681 CIVIL TERM
529 MDA 2014
The documents comprising the record have been numbered from No. 115 to 132, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Ap s ellate Court is 10/7/2014.
David D. Bue 1, Protht otary
Alma Kostjerevac, D puty
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date Signature & Title
SUPPLEMENTAL
Commonwealth of Pennsylvania
County of Cumberland
ss:
1, David D. Buell , Prothonotary
of the Court of Common Pleas in and for said
• County, do hereby certify that the foregoing is a
full, true and correct copy of the whole record of the
case therein stated, wherein
KELSI WEIDNER
Plaintiff. and MCCAN SCHOOL OF
BUSINESS, INC. and DELTA CAREER EDUCATION CORPORATION
Defendant, as the same remains of record
before the said Court at No 2013-3681 of
Civil
Term. 52q MDR.2o1
In TESTIMONY WHEREOF. 1 have hereunto set my hand and affixed the seal of said Court
this 7TH day of .DCTOBER A. D., 2014
n i
Prothonotary
1, Kevin A. Hess President Judge of the Ninth
Judicial District, composed of the County of Cumberland, do certify that
David D. Buell , by whom the annexed record, certificate and
attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name
and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is
Prothonotary in and for said County of Cumberland . in
the Commonwealth of Pennsylvania, duly commissioned and qualified to all of whose acts as such full faith
and credit are and ought to be given as well in Courts of judicature as elsewhere, and that the said record.
certificate and attestation are in due form of law and made by proper officer.
Commonwealth of Pennsylvania
County of Cumberland
ss:
President Judge
1. David D. Buell , Prothonotary of the Court of Common Pleas in
and for the said County, do certify that the Honorable Kevin A. Hess
by whom the foregoing attestation was made. and who has thereunto subscribed his name, was, at the time
of making thereof. and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of
Quarter Sessions of the Peace in and for said County. duly Commissioned and qualified; to all whose acts
as such full faith and credit are and ought to be given. as well in Courts of judicature as elsewhere.
IN TESTIMONY WHEREOF. 1 have hereunto
set my hand and affixed the seal of said Court this
7TH day of OCTOBER A.D. 2014 .
Prothonotary
No .Term 19
2013-3681 CIVIL TERM
No.
529 MDA 2014
KELSI WEIDNER
Versus
MCCAN SCHOOL OF BUSINESS,
INC. and DELTA CAREER
EDUCATION CORPORATION
EXEMPLIFIED RECORD
From Cumberland County
Debt, $ Int,
from
Costs
Entered and Filed
Prothonotary.
Among the Records and Proceedings enrolled in the court of Common Pleas in and for the
Cumberland
county cin the Commonwealth of Pennsylvania
2013-3681 CIVIL TERM
to No. 529 MDA 2014 Terni, 19 is contained the following:
COPY OF Appearance DOCKET ENTRY
KELSI WEIDNER
vs.
MCCAN SCHOOL OF BUSINESS, INC. and DELTA' CAREER EDUCATION
CORPORATION
**SEE CERTIFIED COPY OF DOCKET ENTERIES**
PYS511
Cumberland County Prothonotary's Office
Civil Case Print
2013-03681 WEIDNER KELSI
Reference No:
Case Type
Judgment
Judge Assigned
Disposed Desc.
Case Comments
CONTRACT
(vs) MCCANN
- OTHER
.00
A
HESS KEVIN
General Index
WEIDNER KELSI
215 PINE STREET
SUITE 200
HARRISBURG PA 17101
MCCANN SCHOOL OF BUSINESS INC
346 YORK ROAD
CARLISLE PA 17013
DELTA CAREER EDUCATION
CORPORATION
4525 COLUMBUS STREET
SUITE 101
VIRGINIA BEACH VI 23462
Page 1
SCHOOL OF BUSINESS ET A
Filed 6/26/2013
Time. 11:09
Execution Date 0/00/0000
Jury Trial
Disposed Date0/00/0000
Higaer Crt 1.: 529 MDA 2014
Higher Crt 2.:
Attorney Info
PLAINTIFF VERCHICK HEATHER E
DEFENDANT
DEFENDANT
ARGENTIERI KENNETH M
ARGENTIERI KENNETH M
********************************************************************************
* Date Entries
********************************************************************************
/ 6/26/2013
lc( 7/08/2013
7/16/2013
22- 37 8/23/2013
.3,g-579/11/2013
5g-7310/01/2013
flLf-Solo/21/2013
gf 12/02/2013
$3-c/5-12/06/2013
g,2, 12/12/2013
76- (0g3/12/2014
job- /1 3/24/2014
FIRST ENTRY
COMPLAINT - CIVIL ACTION - BY HEATHER E VERCHICK ATTY FOR PLFF
SHERIFF'S RETURN - DATED 06/27/13 - COMPLAINT 7 NOTICE SERVED ON
DEFT MCCANN SCHOOL OF BUSINESS IN AT 346 YORK ROAD CARLISLE PA
17013
SHFF COST - $34.78
AFFIDAVIT OF SERVICE - COMPLAINT SERVED ON DEFT DELTA CAREER
EDUCATION CORPORATION AT 4525 COLUMBUS ST STE 101 VIGINIA BEACH VA
23462 - BY HEATHER E VERCHICK ATTY FOR PLFF
PRELIMINARY OBJECTIONS AND PETITION TO COMPEL ARBITRATION - BY
KENNETH M ARGENTIERI ATTY FOR DEFTS
AMENDED CLASS ACTION COMPLAINT WITH NOTICE TO DEFEND - BY BENJAMIN
D ANDREOZZI ATTY FOR PLFF
PRELIMINARY OBJECTIONS AND PETITION TO COMPEL ARBITRATION - BY
KENNETH M ARGENTIERI ATTY FOR DEFTS
PLFF'S RESPONSE TO DEFTS' PRELIMINARY OBJECTIONS AND PETITION TO
COMPEL ARBITRATION - BY HEATHER E VERCHICK ATTY FOR PLFF
PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT PRELIMINARY
OBJECTIONS - BY HEATHER E VERCHICK ATTY FOR PLFF
MOTION FOR ADMISSION OF COURTNEY L BAIRD PRO HAC VICE - BY KENNETH
M ARGENTIERI ATTY FOR DEFTS
ORDER OF COURT - 12/11/13 - IN RE: MOTION OF COURTNEY L BAIRD PRO
HAC VICE - *GRANTED* - BY THE COURT EDWARD E GUIDO J
COPIES MAILED 12/12/13
OPINION AND ORDER - DATED 3/12/14 - IN RE DEFENDANTS' PRELIMINARY
OBJECTIONS AND PETITION TO COMPEL INDIVIDUAL ARBITRATION - THE
PRELIMINARY OBJECTIONS OF THE DEFENDANTS ARE OVERRULED AND THE
PETITION IS DENIED - BY THE COURT KEVIN A HESS PJ - COPIES MAILED
3/12/14
NOTICE OF APPEAL TO SUPERIOR COURT - BY KENNETH M ARGENTIERI ATTY
FOR DEFTS
/102.- W13/31/2014 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 529 MDA 2014
PYS511
Civil Case Print
Cumberland County Prothonotary's Office
2013-03681 WEIDNER KELSI (vs) MCCANN SCHOOL OF
Reference No..:
Case TyDe •
Judgmen
Judge Assigned:
Disposed Desc.:
Case Comments
CONTRACT -
HESS KEVIN
6/25/2014
flS- /3,2i 9/19/2014
10/07/2014
OTHER
.00
A
Page 2
BUSINESS ET A
Filed 6/26/2013
Time 11:09
Execution Date 0/00/0000
Jury Trial
Disposed Date0/00/0000
Higher Crt 1.: 529 MDA 2014
Higher Crt 2.:
NOTICE OF DOCKET ENTRIES MAILED TO HEATHER E VERCHICK ATTY
KENNETH M ARGENTIERI ATTY
STIPULATION -TO SUPPLEMENT THE RECORD - BY BENJAMIN D ANDREOZZI
ATTY FOR PLFF AND KENNETH M ARGENTIERI ATTY FOR DEFTS
NOTICE OF DOCKET ENTRIES MAILED TO HEATHER E VERCHICK ATTY
KENNETH M ARGENTIERI ATTY
LAST ENTRY
********************************************************************************
* Escrow Information *
* Fees & Debits Beg Bal Pymts/Adj
End Bal *
********************************************************************************
COMPLAINT 65.25
TAX ON CMPLT .50
SETTLEMENT 9.50
AUTOMATION 5.00
JCP FEE 23.50
PREACIPE ARGUME 19.75
APPEAL HIGH CT 57.00
65.25
.50
9.50
5.00
23.50
19.75
57.00
.00
.00
.00
.00
.00
.00
.00
180.50
180.50
.00
********************************************************************************
End of Case Information
********************************************************************************
TRUE COPY FROM RECORD
In Testimony whereof, I here unto set my hand
and the seal of said Court at Carlisle, Pa.
This 7#41 day of C71- , 20_2Y
Prothonotary
Oct. 7. 2014 9:21AM RJ Marzella & Associates No. 6689 P. 2
6:/12
To; Cumberland County Prothonotary
Via Fax at (717) 240-6573
From: Mary Greenwood -Drumheller, Law Clerk
R7 Marzella & Associates
AdAl Tad
Re: Lynch, Rebecca ICct weedmove 11')3g
Please serve the Writ of Summons on the following parties at the addresses listed below.
Note as far as plaintiffs counsel is aware, defendants have not yet obtained counsel,
and as a result, will be served at the address listed below only.
Shabbar Hussain, MD & Orthopaedic Associate's of Chambersburg
Serve both at:
1201 Wayne Ave.
Chambersburg, PA 1.7201
Mark N, Perlmutter, MD & Musculo -Skeletal Institute of Pennsylvania
Serve both at:
366 Alexander Spring Road
Suite 2
Carlisle, PA 17015
SUPPLEMENTAL
CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C)
Superior Court of PA
To the Prothonotary of the Apellate Court to which the within matter has been appealed:
Superior Court of PA
The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County,
the said court being a court of record, do hereby certify that annexed hereto is a true and
correct copy of the whole and entire record, including an opinion of the court as required
by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the
proceedings, if any, and the docket entries in the following matter:
KELSI WEIDNER
Received in Superior Court
OCT 0 8 2014
MCCAN SCHOOL OF BUSINESS, INC. and DELTA CAREER EDUCATION
CORPORATION M�D�LE
Vs.
2013-3681 CIVIL TERM
529 MDA 2014
The documents comprising the record have been numbered from No. 115 to 132, and
attached hereto as Exhibit A is a list of the documents correspondingly numbered and
identified with reasonable definiteness, including with respect to each document, the
number of pages comprising the document.
The date on which the record has been transmitted to the Appellate Court is 10/7/2014.
.: uell, Protho otary
Alma Kostjerevac, D : suty
An additional copy of this certificate is enclosed. Please sign and date copy, thereby
acknowledging receipt of this record.
Date Signature & Title
Nathaniel Foote
Attorney ID #318998
ANDREOZZI & ASSOCIATES, P.C.
215 Pine St., Ste. 200
Harrisburg, PA 17101
717.525.9124
nate@victimscivilattomeys.com
Attorney for Plaintiffs
KELSI WEIDNER
Plaintiff
vs.
MCCANN SCHOOL OF BUSINESS
INC. and DELTA CAREER
EDUCATION CORPORATION
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 13-3681 Civil
CLASS ACTION
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Enter my appearance on behalf of Plaintiff Kelsi Weidner.
Papers may be served at the address set forth below:
Nathaniel L. Foote
PA ID #318998
Andreozzi & Associates, P.C.
215 Pine Street, Ste. 200
Ph: 717.525.9124 I Fax: 717.525.9143
Date: ri By:
Nathaniel L. Foote
Nathaniel Foote
Attorney ID #318998
ANDREOZZI & ASSOCIATES, P.C.
215 Pine St., Ste. 200
Harrisburg, PA 17101
717.525.9124
nate@victimscivilattomeys.com
Attorney for Plaintiffs
KELSI WEIDNER
Plaintiff
vs.
MCCANN SCHOOL OF BUSINESS
INC. and DELTA CAREER
EDUCATION CORPORATION
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No. 13-3681 Civil
CLASS ACTION
CERTIFICATE OF SERVICE
I, Nathaniel Foote, Esq., hereby state that I have this day caused to be served a true and
correct copy of the foregoing Praecipe for Entry of Appearance to all counsel of interest at the
addresses below named, by US mail, first-class, postage prepaid:
Kenneth M. Argentieri
DUANE MORRIS LLP
600 Grant Street, Ste. 5010
Pittsburgh, PA 15219
Courtney L. Baird
DUANE MORRIS LLP
750 B Street, Ste. 2900
San Diego, CA 92101
Date: 10/H/ )y By: l!
Nathaniel L. Foote