Mueller v. Kean Univ.

• Decision Date: 30 December 2022
• Docket Number: A-1843-20,A-3091-20
• Parties: JACQUELINE BERNAL MUELLER and ANDREW MUELLER, individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. KEAN UNIVERSITY, Defendant-Respondent. ATHENA BROCK-MURRAY, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. KEAN UNIVERSITY, Defendant-Respondent. COLIN KEYES, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. MONTCLAIR STATE UNIVERSITY, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

JACQUELINE BERNAL MUELLER and ANDREW MUELLER, individually and on behalf of others similarly situated, Plaintiffs-Appellants, v. KEAN UNIVERSITY, Defendant-Respondent.

ATHENA BROCK-MURRAY, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. KEAN UNIVERSITY, Defendant-Respondent.

COLIN KEYES, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. MONTCLAIR STATE UNIVERSITY, Defendant-Respondent.

Nos. A-1843-20, A-3091-20

Superior Court of New Jersey, Appellate Division

December 30, 2022

Submitted December 13, 2022

On appeal from the Superior Court of New Jersey, Law Division Union County, Docket No. L-1538-20 and Essex County, Docket No. L-2947-20.

Bursor &Fisher, PA, attorneys for appellants (Philip L. Fraietta and Andrew J. Obergfell, on the briefs).

Matthew J. Platkin, Attorney General, attorney for respondents (Melissa H. Raksa, Assistant Attorney General, of counsel; Michael R. Sarno, Deputy Attorney General, on the briefs).

Before Judges Sumners, Geiger and Susswein.

OPINION

GEIGER, J.A.D.

These appeals present an issue of first impression - whether plaintiffs state viable claims for breach of contract, unjust enrichment, conversion, or money had and received, based on the universities they attended transitioning to total online instruction rather than an in-person, on-campus education experience for which they paid, during the statewide health emergency caused by the COVID-19 pandemic. The universities contend they are immune from liability pursuant to the Emergency Health Powers Act (EHPA), N.J.S.A. 26:13-1 to -36, because their decisions to pause in-person instruction were made in compliance with the executive orders issued by the Governor during a public health emergency to limit the spread of COVID-19 among students, faculty, and the community. We affirm the dismissal of plaintiffs' complaints, concluding the universities are immune from liability under N.J.S.A. 26-13-19.

In these appeals, which we have consolidated for purposes of issuing a single opinion, plaintiffs Andrew Mueller,^[1] and Athena Brock-Murray were fulltime undergraduate students at Kean University. Colin Keyes was a fulltime undergraduate student at Montclair State University. They filed these putative class actions asserting claims for breach of contract, unjust enrichment, conversion, and money had and received.

On March 10, 2020, Kean announced that because of the COVID-19 pandemic, all classes would be held remotely beginning March 16, 2020. That same day, Montclair announced that because of the COVID-19 pandemic, Spring Break would be extended, and beginning March 23, 2020, all classes would be held remotely. Kean and Montclair did not any hold in-person classes after March 6, 2020, for the rest of the spring semester.

Plaintiffs allege they lost the benefit of the in-person education and services that they paid for, without having their tuition and fees refunded to them. They claim Kean and Montclair did not "deliver[] the educational services, facilities, access and/or opportunities that they contracted and paid for." Plaintiffs stated that they "did not choose to attend an online institution of higher learning," and instead enrolled at Kean and Montclair "for an on-campus, in person curriculum." Plaintiffs contend the online options offered to Kean and Montclair students

were subpar in practically every aspect, from the lack of facilities, materials, and access to faculty. Students have been deprived of the opportunity for collaborative learning and in-person dialogue, feedback, and critique. The remote learning options [were] in no way the equivalent of the in-person education that [p]laintiff[s] and the putative class members contracted and paid for.

In their respective complaints, plaintiffs sought a proportional refund through disgorgement of the tuition and fees they paid "for services, facilities, access and/or opportunities "that Kean and Montclair did not provide during the Spring 2020 semester due to the switch to online learning.

Kean and Montclair filed Rule 4:6-2(e) motions to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted. The trial courts granted the motions, finding the EHPA immunized Kean and Montclair from liability. Plaintiffs appeal from those orders. We affirm.

On March 9, 2020, Governor Murphy issued Executive Order (EO) 103 in response to the outbreak of COVID-19. Governor Murphy declared a "Public Health Emergency and State of Emergency." EO 103 authorized and directed several State agencies and officials to take action to protect "the health, safety and welfare" of New Jersey citizens related to the outbreak. Pertinent here, EO 103 authorized the Department of Education to take appropriate steps to "protect[] the health and well-being of students."

On March 16, 2020, Governor Murphy issued EO 104, which "established statewide social mitigation strategies for combatting COVID-19." EO 104 stated that schools are locations where significant numbers of people congregate, "often in close proximity in classrooms, hallways, cafeterias, and gymnasiums." As a result, the Governor ordered that all institutions of higher education cease in-person instruction beginning March 18, 2020, and continuing so long as EO 104 remained in effect. EO 107, issued on March 21, 2020, maintained this directive.

Claims Against Kean University

Kean is a public university with over 16,000 students, offering more than fifty in-person bachelor's degree programs and eight online programs allowing students to pursue certain degrees without ever coming to campus for classes. Each registering Kean student was required to agree to the terms and conditions set forth in the Financial Obligation Agreement for Academic Course Enrollment at Kean University (FOA). The FOA stated that the student was "fully responsible for the cost and expense of all tuition, fees, housing, meal plan costs and other related educational expenses associate with [his or her] enrollment in academic courses." A failure to "officially" drop registered-for courses by a deadline would also result in full financial liability for those courses "regardless of whether or not [the student had] attended [them]."

As stated in the FOA, students were required to pay several mandatory fees per semester in addition to tuition. These included an athletic and recreation fee to support recreational and intramural sports programs, campus fitness centers, and gyms; a capital improvement fee; a student government fee to fund "programming that enhances the intellectual, cultural, and personal growth of students . . . [and] works to develop students' leadership skills"; and a University Center fee to fund student programs, computer lab software, and student staff salaries.

The Spring 2020 semester at Kean began on January 21, 2020, and was scheduled to end on May 13, 2020. Spring break began on March 9, 2020, and classes were set to resume on March 16. However, on March 10, 2020, Kean announced that because of the COVID-19 pandemic and the Governor's EOs, all classes would be held remotely beginning March 16. Classes during the rest of the semester were conducted online. Kean did not refund any part of the tuition paid by students for the semester.

Plaintiffs asserted that by offering some specifically all-online degree programs, Kean had "recognized and admitted the inherent difference between its in-person and online products." They noted the tuition and fees for inperson degree programs at Kean were higher than those for its online programs and for programs at "other online institutions."

The actions filed against Kean were consolidated. Kean moved to dismiss the complaints for failure to state a claim. Kean argued that plaintiffs' claims were barred by the EHPA, which it contended immunized State universities from all suits related to actions taken in response to the pandemic. Kean also argued that the complaint should be dismissed because it had agreed to provide educational services generally, not specifically in-person classes, and thus did not breach any enforceable agreement by changing to an online format to comply with the EOs. Kean noted it had refunded housing and dining fees to students for the Spring 2020 semester, and averred plaintiffs had not identified any contract provision entitling them to a tuition refund "if a governmental order precludes students from congregating on campus."

Plaintiffs argued that Kean "charged its students money for an in-person learning experience and then failed to deliver that experience and kept the money anyway." They agreed that Kean was required to suspend in-person classes, but asserted that the EOs "did not order Kean University to not issue refunds to its students." Plaintiffs argued that there was "a clear implied contract for in-person learning" between them and Kean, evidenced by "the course catalogs, the curriculum posted online, and in student bulletins and things of that sort" which described on-campus locations for classes. They contended that the EHPA's immunity provision does not cover suits claiming losses of money due to breaches of contract.

The trial court found that Kean's action to move to online instruction was "undoubtedly an act in connection with a public health emergency" that was "within the scope of the authority granted under [the] EHPA" and was immune from suit. It found Kean "continued to provide educational services, which is what [it] had contracted to do, through online instruction," allowing students to receive credit for their courses and "complete their degree[s] on time." The court dismissed the amended complaint with prejudice.

Claims Against Montclair State...