Claire Hickey v. University of Pittsburgh

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 21-2013
_____________

CLAIRE HICKEY; AKIRA KIRKPATRICK;
VALERI NATOLI; CANDACE N. GRAHAM; CARLY
SWARTZ; NICHOLAS BOWES,
on behalf of themselves and all others similarly
situated,
Appellants

v.

UNIVERSITY OF PITTSBURGH
______________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-20-cv-00690)
District Judge: Honorable William S. Stickman, IV
______________

No. 21-2016
______________

BROOKE RYAN, individually and on behalf of all
others similarly situated; CHRISTINA FUSCA, on behalf of
herself and all others similarly situated,
 Appellants

v.

TEMPLE UNIVERSITY
______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-20-cv-02164)
District Judge: Honorable John M. Gallagher
______________

Argued January 25, 2023

Before: HARDIMAN, KRAUSE, and MATEY,
Circuit Judges.

(Filed: September 6, 2023)

Gary F. Lynch [ARGUED]
Lynch Carpenter
1133 Penn Avenue
5th Floor
Pittsburgh, PA 15222

Jeffrey A. Klafter
Seth R. Lesser
Klafter Lesser
Two International Drive
Suite 350
Rye Brook, NY 10573

2
Eric Poulin
Poulin, Willey & Anastopoulo
32 Ann Street
Charleston, SC 29403

Roy T. Willey, IV
Anastopoulo Law Firm
32 Ann Street
Charleston, SC 29403
Counsel for Appellants Claire Hickey, et al

Stuart A. Carpey
Suite 400
600 W Germantown Pike
Plymouth Meeting, PA 19462

Edward W. Ciolko
Nicholas Colella
Jamisen A. Etzel
Gary F. Lynch [ARGUED]
Lynch Carpenter
1133 Penn Avenue
5th Floor
Pittsburgh, PA 15222

Eric Poulin
Poulin, Willey & Anastopoulo
32 Ann Street
Charleston, SC 29403

Roy T. Willey, IV
Anastopoulo Law Firm
32 Ann Street

3
Charleston, SC 29403
Counsel for Appellants Brooke Ryan, et al

James C. Martin [ARGUED]
Colin E. Wrabley
Reed Smith
225 Fifth Avenue
Suite 1200
Pittsburgh, PA 15222
Counsel for Appellees University of Pittsburgh

Gerard A. Dever
Roberta D. Liebenberg
Fine Kaplan & Black
One S Broad Street
Suite 2300
Philadelphia, PA 19107

Burt M. Rublin
Ballard Spahr
1735 Market Street
51st Floor
Philadelphia, PA 19103
Counsel for Appellees Temple University

Jessica L. Ellsworth
Nathaniel A.G. Zelinsky
Hogan Lovells US
555 Thirteenth Street NW
Columbia Square
Washington, D.C. 20004
Counsel for Amicus Appellees American Council on
Education, et al

4
Michael E. Baughman
Christopher R. Healy
Troutman Pepper
Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Counsel for Amicus Appellees Association of
Independent Colleges and Universities of Pennsylvania, et
al
_______________

OPINION OF THE COURT
_______________

KRAUSE, Circuit Judge.

Like many colleges and universities across the country,
the University of Pittsburgh and Temple University responded
to the novel coronavirus pandemic by transitioning to remote
learning in March 2020. Their former students—now
Appellants in this consolidated class-action appeal—do not
challenge the wisdom of those decisions. But they do seek
partial refunds of tuition and fees on the grounds that they
received a materially different educational experience than
they were promised and that they were denied access to on-
campus facilities and services for which they paid specific fees.

Both District Courts in the underlying cases granted the
Universities’ motions to dismiss for failure to state a claim. For
the following reasons, we will affirm in part, reverse in part,
and remand for further proceedings.

I. Background

5
 The University of Pittsburgh (“Pitt”) and Temple
University (“Temple”) are institutions of higher learning
located in Pittsburgh and Philadelphia, respectively. Both
universities offer traditional, on-campus educational programs.
Temple also offers fully online distance-learning programs,
which are separately advertised and priced. Appellants are
former Pitt and Temple students (collectively, “the Students”)
who enrolled in the Universities’ traditional on-campus
programs for the Spring 2020 semester.1

To enroll, the Students were required (1) to pay tuition
and mandatory fees, and (2) to sign a Financial Responsibility
Agreement (“FRA”) via an online registration portal. The Pitt
fees included a student activity fee; a wellness fee; a computing
and network services fee; and a security, safety, and
transportation fee. Temple charged one “University Services”
fee that funded numerous on-campus services and applied only
to in-person students. Students at both universities also pre-
paid housing and dining fees if they anticipated use of those
services.

The FRAs—on which the District Courts relied to
dismiss the Students’ claims—are one to two-page documents

1
Appellants Claire Hickey, Akira Kirkpatrick, Valeri Natoli,
Candace N. Graham, Carly Swartz, and Nicholas Bowes—
former students of the University of Pittsburgh (the “Pitt
Students”)—brought suit in the Western District of
Pennsylvania in May 2020. Appellants Brooke Ryan and
Christina Fusca—former students of Temple University (the
“Temple Students”)—initially filed separate suits in the
Eastern District of Pennsylvania, but those were consolidated
in the District Court in August 2020.

6
obligating students to timely pay tuition and fees and providing
the Universities with certain collection rights if those payments
are not made.

As relevant here, Temple’s FRA provides:

• “[B]y registering for classes at Temple
University, I agree to pay all assessed tuition and
fees that result from my initial registration and/or
future drop/add activity. I understand that I am
responsible to pay for all classes in which I am
registered after the final day of the term’s
drop/add period[.]” Temple App. 139.

Pitt’s FRA provides:

• “I understand that when I register for any class at
the University of Pittsburgh, or receive any
service from the University of Pittsburgh, I
accept full responsibility to pay all tuition, fees
and other associated costs assessed as a result of
my registration and/or receipt of services,” Pitt
App. 53;
• “[M]y registration and acceptance of these terms
constitutes a Promissory Note agreement . . . in
which the University of Pittsburgh is providing
me educational services,” id.; and
• “[I]f I drop or withdraw from some or all of the
classes for which I register, I will be responsible
for paying all or a portion of tuition and fees in
accordance with the published tuition refund
schedule . . . ,” id.

7
 In addition, Pitt’s FRA—but not Temple’s—contains an
integration clause stating that the FRA “constitutes the entire
agreement between the parties with respect to the matters
described.” Id. at 54.

Pitt and Temple’s Spring 2020 semesters began on
January 6, 2020, and January 13, 2020, respectively. As usual,
students who enrolled in the traditional on-campus programs
received in-person instruction and access to campus facilities.
Midway through the semester, however, on March 11, 2020,
then-Governor Wolf ordered a temporary closure of all non-
life sustaining businesses in light of the rising number of
COVID-19 cases in Pennsylvania. That same day, the World
Health Organization declared COVID-19 a global pandemic.2

In response, the Universities closed campus buildings,
canceled all on-campus student events, announced that classes
would be conducted online for the remainder of the semester,
and urged students not to return to campus housing.3 Neither
university offered any reduction in tuition or mandatory fees.
Temple issued pro-rata housing and dining refunds for all
students, while Pitt did so only for students who moved out by
April 3, 2020.

2
World Health Org., WHO Director-General’s Opening
Remarks at the Media Briefing on COVID-19 – March 2020
(Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-
director-general-s-opening-remarks-at-the-media-briefing-on-
covid-19---11-march-2020.
3
Pitt also canceled classes outright during the week of March
16, 2020.

8
 Seeking additional recompense, the Students, on behalf
of themselves and others similarly situated, brought suit
against their respective institutions for breach of contract, or,
in the alternative, unjust enrichment.4 The Students alleged
that they “paid tuition for a first-rate education and educational
experience” but “were provided with a materially different
product” and likewise “paid fees for services and facilities
which are simply not being provided.” Pitt App. 29-30; see
Temple App. 102-05 (similar). Their theory was not that
written contracts, like the FRAs, provided for in-person classes
or services, but rather that “[t]he terms of this contract [we]re
as implied or set forth” through the Universities’ “website[s],
academic catalogs, student handbooks, marketing materials
and other circulars, bulletins, and publications,” which
described the benefits of campus life. Temple App. 110; see
Pitt App. 41 (similar). As additional evidence of this implied
promise, they pointed to the Universities’ pre-pandemic
practices of holding in-person classes and the reduced pricing
for online courses.

By way of remedy, the Students sought pro-rated tuition
and fees reflecting the difference in value between what they
purportedly bargained and paid for—in-person classes and
services—and what they received—a fully remote experience
for the latter half of the Spring 2020 semester. Likewise, they
sought disgorgement of any profits that the Universities
retained by moving online. The Pitt Students (only) also
sought reimbursement for unused housing and dining fees for

4
Both sets of students also brought conversion claims but have
since abandoned them on appeal.

9
those who did not move out by April 3 and thus did not receive
pro-rated refunds.

Both actions, however, were dismissed under Rule
12(b)(6) of the Federal Rules of Civil Procedure for failure to
state a claim. As for the contract claims, the District Courts
found the FRAs to be fully integrated agreements that
governed the parties’ relationships with respect to the
collection of tuition and fees and that did not require in-person
instruction or services. The Courts also found that, even if the
FRAs did not govern, the Students failed to state a breach of
implied contract claim because they did not identify any
specific and identifiable promise that the Universities had
broken. As for the unjust enrichment claims, the Courts
determined that they were foreclosed by the FRAs and that, in
any event, the Students failed to plausibly plead that the
Universities’ retention of funds was unjust under the
circumstances. The Students timely appealed. We
consolidated these cases for review.

II. Jurisdiction and Standard of Review

The District Courts had jurisdiction under 28 U.S.C.
§ 1332(d)(2)(A). We have appellate jurisdiction under 28
U.S.C. § 1291.

We review a district court’s ruling granting a motion to
dismiss de novo. Doe v. Univ. of the Scis., 961 F.3d 203, 208
(3d Cir. 2020) (citation omitted). We accept as true all factual
allegations in the complaint and ask whether, viewing those
facts in the light most favorable to plaintiffs, they are entitled
to relief. Id. (citation omitted). The question for us is “‘not

10
whether [] plaintiff[s] will ultimately prevail but whether [they
are] entitled to offer evidence to support the claims.’” In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d
Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)).

III. Discussion

The crux of the Universities’ argument on appeal is that
because the FRAs are “express, integrated contract[s]” that
“specifically govern[] tuition, fees, educational services, and
refunds,” they preclude the Students from bringing either
implied contract or unjust enrichment claims under
Pennsylvania law. Pitt Answering Br. 15; see also Temple
Answering Br. 12-13 (similar). Should we disagree, they also
contend the Students’ claims are not sufficiently pleaded and
their damages are not cognizable. We will therefore address
below (A) whether the FRAs govern the Universities’
obligations and thus preclude the Students’ claims; (B) if not,
whether the Students have sufficiently pleaded breach of
contract or (C) in the alternative, unjust enrichment; and (D)
whether damages are cognizable.

A. The Financial Responsibility Agreements
Function as Promissory Notes, Not Integrated
Contracts Covering the Universities’
5
Obligations

5
The District Courts conducted their analyses
considering the FRAs but reaching the same conclusion
independently of them based on the Courts’ views of the merits
of the Students’ claims. That raises serious questions about
whether the District Courts’ consideration of the FRAs was

11
proper because the FRAs were attached to, or in Temple’s case,
referenced by URL, in the Universities’ motions to dismiss, but
not attached to or expressly referenced in the Students’
Complaints. On a motion to dismiss, a district court may only
consider an “undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiff’s
claims are based on that document,” Pension Benefit Guar.
Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.
1993), but otherwise it should convert the motion to dismiss
into a motion for summary judgment under Federal Rule of
Civil Procedure 12(d).
Here, the Universities contend that the Complaints are
based on the FRAs, and no doubt, those documents relate to
the Students’ agreements to pay fees and tuition. But the FRAs
do not make an appearance in the Complaints themselves. Nor,
as we have interpreted the FRAs, do the Students’ Complaints
depend upon them. Thus, the District Courts’ consideration of
the FRAs may have contravened Rule 12(d) and may have
contributed to the decisions they reached to grant the Motions
to Dismiss—decisions we reverse today.
Nevertheless, while likely erroneous, we do not address
the procedural propriety of the District Courts’ consideration
of the FRAs because the Students’ objections were forfeited:
the Temple Students, for their part, challenged only the
relevance of the FRAs before the District Court, not the
propriety of their consideration in a 12(b)(6) context, see
Garza v. Citigroup, Inc., 881 F.3d 277, 284 (3d Cir. 2018) (“It
is well established that arguments not raised before the District
Court are waived on appeal.”) (citations omitted), and the Pitt
Students recited that argument in the District Court, but
forfeited it on appeal by raising the issue in passing without
“squarely argu[ing] error.” Wyeth & Bro. Ltd. v. CIGNA

12
 We begin with whether the FRAs cover the full extent
of the Universities’ obligations to provide educational services,
and thus foreclose the Students’ implied contract and unjust
enrichment claims. As we explain below, they do not: the
FRAs function as promissory notes that detail only the
Students’ obligations to pay tuition and do not set forth the
Universities’ corresponding obligations. The plain text of the
FRAs compels this reading, and the Universities’ responses to
the contrary are unavailing.

The FRAs’ text obliges specific actions by the Students,
but not by the Universities. Virtually every sentence in the
FRAs is an “I” statement, committing the student signor, for
example, to pay for courses for which s/he is registered; to
assume responsibility to drop classes that s/he does not plan to
attend; and to acknowledge the University’s right to cancel
registration for nonpayment and report delinquent debt. Pitt’s
FRA is also instructively self-titled “Promissory Note.” Pitt
App. 53.

The Universities counter with three arguments, none of
which is persuasive. First, they contend that the FRAs
intermittently reference “registration,” “classes,” “educational
services,” and the like,6 and that these phrases are intentionally

Intern. Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997); see also
Prometheus Radio Project v. FCC, 824 F.3d 33, 53 (3d Cir.
2016) (considering argument “relegated to a footnote” to be
forfeited).
6
See, e.g., Temple App. 11 (“I acknowledge that by registering
for classes at Temple University, I agree to pay all assessed
tuition and fees . . . .”); Pitt App. 53 (“I further understand . . .
that my . . . acceptance of these terms constitutes a Promissory

13
open-ended to provide the Universities with flexibility. But the
FRAs’ structure—like all promissory notes, detailing one
party’s financial obligations—belies this interpretation. These
undefined, one- to two-word phrases simply add context to the
Students’ payment obligations and can hardly be said to
delineate the full scope of the Universities’ obligations in
exchange for the Students’ tuition and fee payments.

Second, the Universities point out that where an express
contract exists, an implied contract is cognizable only where it
is “entirely unrelated to the express contract.” ITT Fed.
Support Servs., Inc. v. United States, 531 F.2d 522, 528 & n.12
(Ct. Cl. 1976). Hence, they contend: because the FRAs
reference “tuition,” “fees,” and “refunds,” and the Students
posit the existence of an implied contract, the breach of which
would result in a partial refund, it must follow that the contracts
are not “entirely unrelated.” Pitt Answering Br. 21; Temple
Answering Br. 26-28.

But the Universities misconstrue the import of the
“entirely unrelated” test: while that language is used to
describe the relationship between fully integrated, express
contracts and implied-in-fact contracts, it does not foreclose an
implied contract claim based on a daisy chain of inferences that
the Universities rely on here by linking the implied contract to
the express one. Instead, it asks whether there is a conflict
between an express contract and the alleged implied contract.
See ITT, 531 F.2d at 528 (“To be entirely unrelated to the

Note Agreement (i.e., a financial obligation in the form of an
educational loan . . . ) in which the University of Pittsburgh is
providing me educational services . . . and I promise to pay for
all assessed [costs].”).

14
express contract, the implied contract would at the least have
to require . . . some duties different from those under the formal
agreement.”). In other words, de minimis conceptual overlap
between an express contract and an implied contract is not
enough for the former to preclude the latter. See Baer v. Chase,
392 F.3d 609, 617 (3d Cir. 2004) (“The existence of an express
contract . . . does not preclude the existence of an implied
contract if the implied contract is distinct from the express
contract.”) (citations omitted).

Here, the fact that the express contracts—the FRAs—
discuss tuition and fee obligations in the ordinary course of
registration does not preclude the Students either from
asserting breach of an implied contract based on an alleged
university obligation (to provide in-person classes and
services) not addressed in the FRAs, or from seeking damages
in the form of a partial tuition or fee refund. See Jones v.
Adm’rs of the Tulane Educ. Fund, 51 F.4th 101, 118 (5th Cir.
2022) (concluding FRA was not preclusive of students’ claims
as it “only address[ed] refunds that follow from the Students’
desire to renege on the tuition contract; it d[id] not address
refunds that follow from [the university’s] failure to perform
its end of the tuition contract”).

Third, Pitt (only) argues that its integration clause—
affirming that the FRA “constitutes the entire agreement
between the parties with respect to the matters described”—
precludes the Pitt Students’ implied contract claim. Pitt App.
54. But by its terms, the clause applies only to “matters
described” in the FRA, and the FRA does not address the
methods of instruction or types of services the Universities
must provide. Id.; cf. Ninivaggi v. Univ. of Del., 555 F. Supp.
3d 44, 49-50 (D. Del. 2021) (Bibas, J., sitting by designation)
(“But the integration clause limits its own reach to ‘the matters

15
described’ in that section of the catalog—the mechanics of
‘Costs, Billing, and Financial Aid.’ . . . It does not purport to
address methods of instruction (like in-person classes) and thus
does not make the contract fully integrated. So that is no bar to
implying other terms.”).

As the Universities’ objections are unavailing and the
FRAs function as promissory notes, not integrated contracts
laying out the Universities’ obligations, there is no express
contract precluding the Students’ implied contract or unjust
enrichment claims. We therefore proceed to consider if each
of those claims is sufficiently pleaded.

B. The Students Have Plausibly Alleged Breach of
an Implied Contract

We begin with the Students’ implied contract claims
and will first address the availability of this theory in the
student-university context under Pennsylvania law, before
turning to Students’ tuition and fee claims in this case.

1. Implied Contract Claims in this Context

As a general matter, in Pennsylvania, “[a] contract
implied in fact is an actual contract which arises where the
parties agree upon the obligations to be incurred, but their
intention, instead of being expressed in words, is inferred from
acts in the light of the surrounding circumstances.” Elias v.
Elias, 237 A.2d 215, 217 (Pa. 1968); see also Ingrassia Constr.
Co. v. Walsh, 486 A.2d 478, 483 (Pa. Super. Ct. 1984) (holding
that implied contracts may arise where the circumstances,
including “the ordinary course of dealing and the common
understanding of men, show a mutual intention to contract”)
(citation omitted). But the Universities contend that

16
Pennsylvania has displaced this general rule with “a
particularized body of law” in the student-university context
that “require[s] a showing of a definite, specific, and
identifiable written promise.” Pitt Answering Br. 1-2; see
Temple Answering Br. 12 (similar).; see also Ass’n of
Independent Colleges and Univers. of Pa. Amicus Br. 12-15.

We are not convinced. The Universities rely on
Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. Ct. 1999), but
their reliance is misplaced. In Swartley, the Pennsylvania
Superior Court rejected a plaintiff’s claim that her university
breached its contract to educate her and acted arbitrarily in
denying her doctoral degree. Id. at 917-21. In so doing, it
reasoned that because Pennsylvania does not recognize “‘a
general cause of action for educational malpractice, whether
framed in terms of tort or breach of contract, where the
allegation is simply that the educational institution failed to
provide a quality education,’” the plaintiff could not allege a
general failure to educate untethered to “written policies of the
university.” Id. at 918-19 (quoting Cavaliere v. Duff’s Bus.
Inst., 605 A.2d 397, 403 (Pa. Super. Ct. 1992)). But the Court
did not wholly exempt universities from the hornbook rule that
contracts may be implied in fact. See Restatement (Second) of
Contracts § 4 (Am. Law. Inst. 1981) (“A promise may be stated
in words either oral or written, or may be inferred wholly or
partly from conduct.”). Put differently, it did not preclude
breach of contract claims by students who, unlike Swartley,
allege specific promises their universities broke—even if those
promises have not been reduced to writing.7

7
We reject the Universities’ assertion that the Students’
tuition claims amount to no more than educational malpractice
claims. The Students’ claims are not that the education they

17
 Indeed, both before and after Swartley, Pennsylvania
courts have recognized that students may bring breach of
contract claims for “specific undertakings” that a university
promised but failed to deliver, such as a certain curriculum,
accreditation, or degree. See, e.g., Cavaliere v. Duff’s Bus.
Inst., 605 A.2d 397, 404 (Pa. Super. Ct. 1992) (observing that,
in such cases, “the nature of the contractual undertaking and
the breach thereof are clear and the plaintiff may be able to
establish a cause of action against the offending institution”).
They have also entertained implied contract claims by students
against universities for failure to satisfy those types of
commitments. See, e.g., Gati v. Univ. of Pittsburgh of Com.
Sys. of Higher Educ., 91 A.3d 723, 731 (Pa. Super. Ct. 2014)
(recognizing, in expulsion case, that students may have a
“reasonable expectation” based on “statements of policy . . .
and the experience of former students” that they will receive a
degree if they perform satisfactorily and meet their financial
commitments) (quotation omitted); McCabe v. Marywood
Univ., 166 A.3d 1257, 1262 (Pa. Super. Ct. 2017) (considering
claim that Marywood breached an implied promise set forth in

received was inadequate, but rather that the Universities failed
to provide a specific type of education—live and in-person—
that was essential to the bargain. Cf. Hernandez v. Illinois Inst.
of Tech., 63 F.4th 661, 670 (7th Cir. 2023) (“[The student] asks
us neither to rule that the online education he received was
inadequate to prepare him to work in his chosen field . . . nor
to review IIT’s academic decisions about his performance . . .
. Rather, [he] asserts that he received a ‘materially different
product’ than what he bargained for.”); Ninivaggi, 555 F. Supp.
3d at 52 (“[T]his is not a malpractice suit. The students claim
not that their education was bad, but that it breached a promise
to provide a specific type of education.”).

18
its website and publications to provide a fully accredited
nursing program before affirming dismissal because
“Marywood was fully accredited at all relevant times”).

In short, Pennsylvania has not jettisoned ordinary
contract principles permitting implied contracts in cases where,
as here, students allege that a university failed to perform a
specific undertaking. The question remains whether the
Students here have adequately alleged that the Universities
breached an implied contract to provide in-person education
and services in exchange for (1) tuition, and (2) mandatory
fees.

2. The Adequacy of the Students’ Pleadings
Here

i. Tuition Claims

The Students’ first breach of contract claim is based on
the theory that their fundamental bargain with the Universities
was for in-person education in exchange for tuition. The
District Courts concluded that the Students’ allegations were
insufficient to support this asserted contract because there was
no “specific and identifiable” promise for in-person education
that gave rise to a binding commitment—at most, the Students
showed that they had a reasonable expectation of in-person
instruction during “normal times.” Temple App. 17; Pitt App.
9. But as discussed above, Pennsylvania law permits implied-
in-fact contracts that may arise from “surrounding
circumstances.” Elias, 237 A.2d at 217. And here, the
Students’ Complaints highlight three university practices that
could plausibly support an implied-in-fact contract: (1) the
Universities’ publications touting the benefits of the “on-
campus experience”; (2) their longstanding pre-pandemic

19
tradition of in-person education; and (3) the separate marketing
and pricing of online and in-person programs.

First, the Students cite to several university publications
replete with references to in-person, on-campus instruction, as
well as to the “campus experience.” For example, Temple
recruited students by claiming: “When you come to Temple,
you also come to Philadelphia,” and that students could
“choose from a diverse range of activities on campus and in the
surrounding city.” Temple App. 112-13. It also advertised
“experiential learning” opportunities, “state-of-the-art”
facilities, and “hundreds of student organizations [that] thrive
on campus.” Id. at 111-12. Similarly, Pitt’s website highlights
the “full measure of [] benefits of Student Life at the
University”; “[c]ollaboration with faculty and academic units”;
“experiential education”; and “[s]tudent organizations” which
“are an essential part of campus life.” Pitt App. 39.

The Universities respond that these representations are
only “generalized, aspirational statements,” Temple
Answering Br. 34, 36, that present “a subjective view of what
campus life may be,” Pitt Answering Br. 36 (quoting App. 9);
they are not binding commitments. But viewed in context with
the Students’ payment of tuition and registration for in-person
classes prior to the campus closures, these representations
support a reasonable inference that in-person education and
access to campus resources were among the benefits of the
matriculation bargain. Cf. Hernandez v. Ill. Inst. of Tech., 63
F.4th 661, 668-69 (7th Cir. 2023) (citation omitted)
(concluding university’s representations supported student’s
claim that “an identifiable contractual promise to provide an
in-person, on-campus university experience in exchange for
tuition and fees can be inferred from ‘the facts and conduct’ of
[the university]”); Gociman v. Loyola Univ. of Chicago, 41

20
F.4th 873, 884-85 (7th Cir. 2022) (same); Jones, 51 F.4th at
114-15 (same); Shaffer v. George Washington Univ., 27 F.4th
754, 764 (D.C. Cir. 2022) (“Viewing the pertinent language as
a whole, . . . a reasonable person would have assumed that the
Universi[ties] intended to bind themselves to providing in-
person education in exchange for retaining Plaintiffs’ entire
tuition payments for traditional on-campus degree programs.”)
(quotation omitted).

Second, the Complaints describe the Universities’
tradition of providing in-person education—including to the
Students themselves prior to March 2020, which also supports
the Students’ implied contract theory. See Crawford’s Auto
Ctr., Inc. v. Pa. State Police, 655 A.2d 1064, 1066 (Pa.
Commw. Ct. 1995) (explaining that intent to contract under
Pennsylvania law may be informed by parties’ “course of
dealing”) (citations omitted); Ninivaggi, 555 F. Supp. 3d at 51
(“This history, custom, and course of dealing, along with the
school’s statements, plausibly created an implied promise of
in-person classes.”); Shaffer, 27 F.4th at 764 (recognizing
university’s “historic practice” of on-campus education as
supporting plausible allegation of implied contract for in-
person instruction); Jones, 51 F.4th at 116-17 (same);
Gociman, 41 F.4th at 884-85 (same).

The Universities counter that their prior practices of
providing on-campus learning did not obligate them to
“continue to do so indefinitely, without exception, in all
circumstances, including during a pandemic.” Pitt Answering
Br. 42; see Temple Answering Br. 13-14 (similar). But rarely
are contracts expressed in such terms. Whether it was
impossible or impracticable for the Universities to continue
holding in-person instruction during the second half of the
Spring 2020 semester may speak to an impossibility defense,

21
which is not before this Court, but it does not speak to the
parties’ understanding on formation of the contract. See
Restatement (Second) of Contracts § 261 (impossibility
defense); Jones, 51 F.4th at 117 (declining to reach
impossibility defense not raised by university).

Third, the Students point out that online education is a
product separate and distinct from in-person education and is
typically offered at a lower cost. Temple urges us to reject any
inference based on its price disparities because it does not offer
these less expensive online counterparts for all their in-person
programs. But the lesser number of online offerings is neither
here nor there. The point is that the Students have plausibly
alleged they paid a “premium” for in-person education by
asserting that “[t]he costs incurred for having an online only
program [are] significantly lower than the costs and overhead
necessary to provide classes and services on campus and in
person,” Pitt App. 48; see Temple App. 115-16, and therefore,
in-person education was key to the bargain.

To be clear, not every benefit touted by a university
gives rise to a contractual commitment. The specifics of course
work—like instructors, class offerings, room assignments, and
degree requirements—are well within universities’ discretion
and may be changed consistent with their contractual
obligations. Though well understood given the nature of the
services universities provide, many universities even make this
explicit in reservation of rights provisions.8 See, e.g.,

8
That is not to say such provisions necessarily extend,
as a matter of law, to transitions to online education. While
some might specifically address emergencies or other force
majeure events, others are narrower and thus do not, “as a
matter of law,” allocate “the entire financial consequences of

22
Cuesnongle v. Ramos, 713 F.2d 881, 885 (1st Cir. 1983) (“The
University reserves the right to revise or change rules, charges,
fees, schedules, courses, requirements for degrees and any
other regulations affecting students whenever considered
necessary or desirable.”). So, too, must Students anticipate
adjustments in campus life: buildings undergo construction,
programs face budget cuts, and previously “undefeated” sports
teams falter. See Gally v. Columbia Univ., 22 F. Supp. 2d 199,
206 (S.D.N.Y. 1998) (“Not every dispute between a student
and a university is amenable to a breach of contract claim[.]”).
Even a university’s ratings, rankings, and reputation are
expected to fluctuate with normal competition in the
marketplace. See United States v. Porat, No. 22-1560, 2023
WL 5009238, at *6 (3d Cir. 2023). Absent, for example,
deceit, those changes would hardly give rise to contractual
liability. Nothing in our opinion today attaches new legal
significance to these realities. Our holding, rather, is a narrow
one: that at the pleading stage, the Complaints’ allegations of
frequent references to in-person instruction in university
publications, the schools’ tradition of in-person instruction,
and their different marketing and price structure for online
programming support a reasonable inference that the parties

the pandemic change to online classes to the students.”
Shaffer, 27 F.4th at 764-65. Temple’s limited reservation of
rights provision is in the latter category. See Temple
University, 2019-2020 Undergraduate Bulletin 13,
https://bulletin.temple.edu/archives/2019_2020_Undergraduat
e_Bulletin.pdf (last visited July 14, 2023) (“The information in
this [Course] bulletin is subject to change” including “the
status of policies, programs, descriptions of curricula, or other
information in this bulletin.”).

23
impliedly contracted for in-person education, and that is
sufficient to state a claim for breach of contract.

ii. Fee Claims

We turn next to the Students’ claims that the
Universities breached their obligation to provide certain
services and facility access in exchange for the Students’
payment of particular fees. The Students’ fee claims fall into
three categories, which we address seriatim: (1) Pitt’s housing
and dining fees; (2) Pitt’s mandatory fees; and (3) Temple’s
single “University Services” fee.

a. Pitt Housing and Dining Fees

Beginning with Pitt housing and dining fees, which
were not refunded for Students who moved out after April 3,
2020, Pitt observes that the Students have not alleged that any
named class representative actually paid such fees. We agree,
and because in class actions, at least one class representative
must have experienced a concrete injury for each asserted
claim, we will affirm the dismissal of the Pitt Students’ housing
and dining fee claims. See Neale v. Volvo Cars of N. Am., LLC,
794 F.3d 353, 359 (3d Cir. 2015) (“In the context of a class
action, Article III must be satisfied by at least one named
plaintiff.”) (internal quotation marks and citations omitted);
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)

24
(standing analysis must be tailored to the “type of relief
sought”) (citation omitted).9

b. Pitt Mandatory Fees

Turning to Pitt’s mandatory fees, although the
University contends that the Students have “fail[ed] to identify
any definite, specific, and identifiable promise connected to
these fees,” Pitt Answering Br. 37, the Students’ Complaint is
replete with specific allegations. Distilled, the Students allege
that they paid a total of $545 per semester for (1) a student
activity fee that covered access to undergraduate programs and
services, including a Student Radio and Student Organization
Resource Center; (2) a wellness fee that covered access to
Student Health Services—a campus facility staffed by medical
doctors—, campus recreation facilities, and intramural sports;
(3) a computing and network services fee that covered
upgrades to university computer facilities and equipment; and
(4) a security, safety, and transportation fee that covered access
to on-campus transportation services. The Students further
allege that during the pandemic, the University closed several
of the facilities and services that these fees were intended to
cover without refunding any portion of the fees.

No doubt, further factual development is required to
ascertain the scope of each fee, what specific services were
terminated, and for how long. For present purposes, however,
we must take as true the factual allegations in the Complaint
9
The District Court may consider in the first instance whether
to grant Pitt Students further leave to amend their Complaint to
attempt to establish standing to recover those expenses. See
Fed. R. Civ. P. 15(a)(2) (providing for leave to amend “when
justice so requires”).

25
and draw all reasonable inferences in the Students’ favor.
Univ. of the Scis., 961 F.3d at 208 (citation omitted). When we
do, the Students have adequately alleged that the services and
access to campus facilities that the individual fees were
intended to cover were at least partially terminated, so the
Students may be owed a refund. See Jones, 51 F.4th at 114
(“Students plausibly allege that they paid for services that
Tulane failed to provide and that [they] may be entitled to a
partial refund.”).

c. Temple University Services
Fee

Finally, as to the third category of fee claims, Temple’s
single “University Services fee” was intended to cover
“[f]unding for state-of-the art computer equipment and
technologies . . .; [a]ccess to all student activities, events, and
recreational facilities; [e]xpansion and maintenance of
recreational and academic facilities . . . ; and [a]vailability of
basic student health and treatment services.” Temple App.
102. While the Temple Students allege that they “lost the
benefit of the services for which these fees had been paid,” yet
received no refund, id. at 103, Temple highlights that its
Tuition and Fees policy expressly identifies this fee as “non-
refundable” and dependent solely on a student’s credit hours,
not on how often a student actually uses these services. Temple
Answering Br. 2. But the term “non-refundable” gives notice
to the Students that they will not be refunded if they choose not
to use the services; it does not necessarily entitle the University
to retain the fees if the services are unavailable altogether. Said
another way, labeling a fee as non-refundable does not, on its
face, excuse wholesale nonperformance. After all, “[i]t
stretches reality that the Students agreed to pay money for a
service not delivered,” Jones, 51 F.4th at 114 (finding “non-

26
refundable” designation non-determinative), so we cannot say
the Temple Students’ fee claim fails as a matter of law.

***

In sum, the Students have adequately pleaded their
implied contract claims as to tuition in exchange for in-person
education, Pitt’s mandatory fees, and Temple’s University
Services fee—but not as to Pitt’s housing and dining fees.

C. The Students Have Adequately Pleaded Unjust
Enrichment in the Alternative

We next consider whether the Students have sufficiently
pleaded unjust enrichment. Although Pennsylvania law bars
unjust enrichment claims when a contract—express or
implied—governs the parties’ relationship, see Hershey Foods
Corp. v. Ralph Chapek, Inc., 828 F.2d 989, 999 (3d Cir. 1987),
the Federal Rules of Civil Procedure permit such claims to be
pleaded in the alternative where, as here, the existence or
applicability of a contract is in dispute, see Fed. R. Civ. P.
8(d)(3) (“A party may state as many separate claims or
defenses as it has, regardless of consistency.”).

To state a claim for unjust enrichment under
Pennsylvania law, a plaintiff must allege that (1) the plaintiff
conferred a benefit on the defendant; (2) the defendant
appreciated that benefit; and (3) the defendant retained the
benefit under circumstances where it would be inequitable to
do so without payment of value. WFIC, LLC v. LaBarre, 148
A.3d 812, 819 (Pa. Super. Ct. 2016). As the first two elements
here are undisputed, the question for us is whether the Students
have adequately alleged it was unjust for the Universities to
retain their tuition and fees in full.

27
 That they have. The Students allege that the
Universities retained considerable cost savings—at Students’
expense—by transitioning to remote learning. While the
Universities, joined by amici American Council on Education,
contend that they did not profit from the pandemic—and to the
contrary, “incurred tremendous and unexpected costs,”
American Council on Educ. Amicus Br. 9—we will not resolve
that factual question at the motion-to-dismiss stage. See
Shaffer, 27 F.4th at 769 (“[D]etermining whether the transition
to online learning resulted in a net enrichment to [the
universities] is a fact-intensive question inappropriate for
resolution at the motion-to-dismiss stage.”) (citation omitted).

Nor will we accept the Universities’ invitation to affirm
based on the correctness of their decisions to shut down
campus. The Students do not claim it was unjust for the
Universities to decide to move classes and services online, but,
having done so, that it was unjust for the Universities not to
refund their tuition or fees even partially. And they may be
right if they can prove their allegations because the law here
tracks common sense: “If the school saved money by
substituting online for in-person classes, it might have to give
those savings back to the students.” Ninivaggi, 555 F. Supp.
3d at 53. The Students’ allegations are thus sufficient to
survive a motion to dismiss.

D. The Students’ Asserted Damages are Cognizable

Finally, according to the Universities, the Students’
claims should be dismissed because “[n]o objective
methodology could reasonably calculate the difference in value
between in-person and online instruction” and inherently
speculative damages are not cognizable under Pennsylvania
law. Temple Answering Br. 50; see Pitt Answering Br. 48

28
(similar); see generally Stevenson v. Econ. Bank of Ambridge,
197 A.2d 721, 727 (Pa. 1964) (restriction on speculative
damage awards) (citations omitted). In Pennsylvania,
however, damages are speculative “only if the uncertainty
concerns the fact of damages, rather than the amount.” Pashak
v. Barish, 450 A.2d 67, 69 (Pa. Super. Ct. 1982) (citation
omitted); see also Carroll ex rel. Burbank v. Philadelphia
Hous. Auth., 650 A.2d 1097, 1100 (Pa. Commw. Ct. 1994)
(“[S]ummary judgment is improperly granted solely on the
basis that the amount of damages is indefinite.”).

Here, the Students have adequately pleaded damages.
Not only do they allege that they did not receive the type of
education that they purportedly bargained for, which costs
more and comes with different benefits than online learning,
including “the opportunity for collaborative learning and in-
person dialogue, feedback, and critique,” for which they paid;
they also allege that they did not receive specific university
services while the campuses were shut down. Pitt App. 41.
We join the D.C. Circuit in holding that such allegations, if
proven, would give rise to “cognizable damages.” Shaffer, 27
F.4th at 765.

IV. Conclusion

For the foregoing reasons, we will affirm the dismissal
of the Pitt Students’ housing and dining fee claims, reverse the
dismissal of all other claims, and remand for further
proceedings.

29