record including testimony from production employees that drexel repeatedly stated it didn't know whether it would meet its in roman goals in pennsylvania which the law governs here you can't show fraud based on future promises unless a statement fostered a belief in a specific and definite outcome could we could could we affirm the district court summary judgment ruling on that ground i know your hon contract supersedes the parties previous representation of an agreement by contract if the contract is incomplete on its face or if it's not the party to hire contract with respect to the ticket or subject matter of parole eviden l doesn't apply here if you look at section nine point one of the contract far from expressly disclaiming or superseding reliance on drexel's representations the two thousand and fifteen contract expressly embraces reliant on those representation it says that each party has relied on representations regarding existing and future conditions and production made by the other in connection with the negotiation and if that execution of the agreement and so the district court was incorrect to apply the full evidence rule here because the plain language of the contract and i'm complaints that these prior representations are relevant the contract is not integrated as to that issue then you're specifically re parole evidence would bar you from looking at but again here you have the opposite situation where the party express we in places reliance on cash representations and that forget infection nine dollars it sounds like about the gist of the action doctrine which is the bruno versus your insurance case in that case in that case the supreme court explained that where quote an alleged tort claim against the party to a contract is based on the parties actions undertaken in the course carrying out a contractual agreement and the gist of the grabbing the cause of action stated the complaint is in actuality a claim against the party for breach of its contractual obligation that's where the gist of the action doctrine applies so it's the nature of the duty that's alleged to have been breached that is the critical factor here were not alleging a breach of a duty under the contract it were alleging a breach of a duty not to induce a contract through fraud that i going to sensually a tort claim the fact of the bruno case are instructive and make this a for sure i case in bruno you had a situation where there was a negligence claim against somebody associated with an insurance with an insurance company and the employee of the insurance company committed negligence by providing false information to a homeowner about the consequences a mole that with a negligence tort claim even though the relationship between the parties a rose out of the of the insurance contract between here the one a for she or i case because the port that we're talking about five to one inducement actually proceed any contractual relationship that the very nature of the claim just the action doesn't doesn't apply my guess is you you can you still have your parole evidence well the other side will have to make a claim on that's right i think that the district court ruled against us on both ground in the alternative and i don't understand and sort of yeah and so the court would would have to agree with i think it should on both just for the action and p well let me just follow up on that if i may quickly appeal can affirm on any grounds so even if we the low even if you know you will you prevail on just satisfy all of those elements here well let me let let me kick the tires on that if i may you know i mean there's the delegations that these affidavits three of these affidavits that were submitted are sham affidavits are contrary to testimony  contrary thirty six dollars testimony and are contrary to other deposition testimony and they were submitted after the discovery process closed and the white contradictory to that and that that basis for the contradiction is the primary basis for creating a genuine issue of material fact so if we take those sham affidavits off the table you know allegedly sham affidavits off the table what about this  something as a sham affidavit or not and the district court properly exercised its discretionary determination here not to apply the shana david doctrine but to get here to your  we'd have an abuse of discretion standard for him affidavit terminations i think it is an abuse of discretion standard for whether something constitutes a sham affidavit and miscible the purposes of determining summary judge earlier representations freshman enrollment would decline it budget based on that but didn't disclose that that so before executing the two thousand and fifteen contract there is evidence in the record email testimony from drexel world and pennsylvania appears to be far less developed than does other jurisdictions and jenkins talks about there has to be a quote framework close quote or somehow somebody to interpret whether somebody was within that framework in order to have good faith and we're specifically talking about i guess here section one point two what framework does the management agreement provide to the promise if we are bound by but the pennsylvania superior court says object and so st of all it provides a clear triggering conditions for negotiation that the less than two percent freshman enrollment growth and nd it provides a goal for negotiations which is countering the adverse economic impact that subpar growth on sick access to the extent there are additional gaps to fill in a court fill them in by looking  section i went to the rest of the contract and fundamentally the trader industry asked them and that's consistent with the ways in which pennsylvania or it and this court have applied good faith commitments for such as for the triggering condition is satisfied i think the only question is what it needs to counter the adverse economic impact and i think we would probably have to have actual development about what is customary in the industry and act could be the i can understand to some extent it looks someone says on september th and sixty days as a matter of convenience this agreement ceases to exist so it ceases to exist at the end of november th and that says later on oh if you'll stay an additional twenty two dollars days who offer you about three dollars more per student and w should commission you respond back and i i don't know if you but i can't figure out is it that you respond back the same day or wait till september twenty six saying that the agreement is over today and by the way we're not going leave students in the lurch and we'll continue on to the summer ten but you don't say i'm going to accept the reduced commission i'm going to accept the increased student paper student so i mean is there a meeting of the mind is there  consideration is there you know affect what happened after september th is there in effect a course of conduct that shows that there was some type of agreement as to will continue for if they respond to drexel's offer and the key language in the next of letter is that it agree to drexel's request that it remain on campus it's motivation for a green whether because it wanted do with how the agreement was terminated whether the two thousand and fifteen agreement was terminated for convenience or for cause that thinks in it immaterial here the only distinction under the two thousand and fifteen contract between the two types of terminations one is a ten day terminations and the other is a sixty day terminations but either way it's undisputed here that drexel asked him to do so agreed to remain past the sixty date to december th and and it was agreeing to do so on the preferred terms relative to the two thousand and fifteen agreement that drexel had offered in two thousand and sixty that the letter except the letter accepting actual offer was also accepted in a more favorable terms the drexel was offering at that point even apart from the exchange of letters though you also have acceptance through performance pennsylvania water recognizes that an offer can be accepted by germination for cause which is what drexel proposed or whether you call that a termination correct meaning and that's just simply not a material difference here so you have an acceptance on the key terms and you have in minor disagreement over something that  material under pennsylvania law that constitutes an exception even if it didn't even apart from the written exchange though what you would have here is acceptance by performance because the deck so fulfilled went beyond fulfilling its contractual obligations and in fact fulfilled what drexel asked it to do in the september th letter which was to stay half the term a nation day to the agreement drexel accepted that performance without objection in a sense i've already touched on this which is that upon notice of terminations by drexel the deck so had to remain on campus at most for sixty days until nov th but drexel after that actual remain on campus until december can and actually agreed to do so so providing the food and dying services for those extra week beyond what the two thousand and fifteen contract required in accordance with its germination provisions was legal consideration for the twenty six te are not a forcible in terms of the pleading with respect to the two thousand and fifteen allegations paragraph ninety six of count three of the complaint incorporate by reference the allegations in the previous fifteen alleged agreement  and so i think what i would point you to judge b this is to the supplemental pleading or the amendment to the complaints and and the whole point of the amendments to the complaint could go on so with respect to the object in richmond claims a reasonable jury could award restitution to saks out because drexel was unjustly enriched by that access provision of food and dining services and unjustly while rape as a result of drexel's course of conduct that includes the fraudulent inducement that led to the two thousand and fifteen contract in the st place the failure to negotiate in good faith in order to counter the adverse fact oncet xo of the involvement projections falling short and in fact quieting and then finally the unjustly low rate for providing additional services in the september these allegations we're talking about the remedy might very unjust enrichment though is inherently an equitable remedy so it would just depend on which contract claim survived and if the contract would survive we wouldn't be seeking to double dip for on which of the contract claims survive separately case and certainly through the district court proceeding adecco it had the tendency to play rather fast and loose both with the facts and with the law and with their citations or quotations from documents and  result i must spend some time making our position clear and referring to those to that testimony and to those documents and to that evidence so i'll be as brief as i can but i also want to be as point this is this is judge him but why don't we go through the concerns that we have st and then if you think there's something at the end you need that you need to add you know we're not before the trial court at this point and when we start with the progeny in inducement the issue there it looks like under parole evidence now clearly you've got the section i guess is one thousand and eleven dollars and the argument would be that hey that integrates everything that the trouble is that you have nine point one of the of the management agreement and nine point one does say in addition each party had relied on representations regarding existing and future conditions and made by the other in connection with the negotiation and execution of this agreement and it looks like the agreement within the four corners says that there are things outside this agreement that you can rely on by way of with respect to my point nineteen point one relates to changes in policy than practice and it does not in any way shape or form refer to in its language or otherwise to any spoken about were those conditions that existed on on campus for which for twenty years or so decks that was familiar with on a daily weekly and monthly basis mr tobin but isn't that isn't the question whether we can look beyond the scope is the question whether we can look at evidence beyond just the pure integration of this contract and is i mean i'm just looking for if one point one is to hook decks those using for saying aha we can look beyond that and one of the phrases in nine point one is client student population and then representations existing future conditions and protection projections then i guess the question my mind is why doesn't that combination of events open that integration clause in the least for the narrow items listed in nine point one well i don't believe it opens it simply acknowledges that during the course of during the course of an eight hundred and ten month negotiation the parties exchanged they exchanged information and they exchanged  representations with regard to hours rates locations remember this cover catering to covered outside non mandatory meal service things of that sort and so what they were doing was setting up and talking about policies and practices what existed and what would exist but didn't refer to or relate to freshman in roman or catering is referred to exclusively in the financial assumptions by said dexter incorporated into nine point two i think it is rather ludicrous to assume that the language of my point one or nine two what acting as a reservation of right which is what you would have to find the answer if judge be bad and perhaps you're your client had eight pregnant intention to reduce enrollment and didn't have it at two thousand eight hundred it made a representation decide what the visit is in fact a representation regarding an existing and future condition of projection that your client was saying one thing about internally and a different thing about externally point one talks about the client's student population by way of example it speaks of it in terms of labor food supply and federal state and local sales use an excise taxes you point me to the language that limits nine point one to that it i don't think that there is a language that limits nine point one to that is not the language freshman enrollment growth and because that is the subject matter of the fraudulent inducement claim here then nine dollars is self limiting it refers to changes in policies and practices every st the things that existed on campus and every st things that might occur in the in the future with regard to those policies and practices but it does not refer in any way shape or form to the financial assumptions that are relevant to the fraudulent inducement claim as a consequence it seems to me that it is either has to be freshman enrollment so that would be my that would be my answer to why my point one should not be should not be interpreted any way other than what it says and what it does not say my other point would be that one of the arguments that mr direct didn't make this morning but they made in their reply brief is that nine point one was in effect a reservation of rights and that it was reserving the right to make a claim for full due sman with respect to freshman enrollment i see nothing in the language of to the issue of freshman or roman and i would suggest to you that given the un contradicted testimony throughout this case that from july when the when the original r f p was propagated and the box was propagated that the meeting with took place where they received our strategic plan throughout all of those meetings and throughout all of the pre contract negotiations that led up to the may th team contract signing we have multiple examples deck so senior management stating that they knew that freshman enrollment would not increase that they knew that there was a new retention policy which might have some adverse effect on freshman or woman for a short period of time and this sounds to me like it's an argument you you can make to the arbitrator if if this were to go respect to the matters covered here in superseding all prior agreements may not be challenge other than by an agreement in writing what we're talking about one point one is not an agreement but a representation and that seems to me that can sit back so say that there were as judge beavis says false representations about current projections on which would be based future conduct and so it doesn't seem that the parole evidence rule necessarily applies here by virtue of the way the contract the management agreement is drafted i would take the contrary position your honor i would say that the parole evidence rule doesn't apply because what we're being accused of misrepresenting some current representation or some potential misrepresentation goes to the issue of freshman and roman that that issue is barred under pennsylvania law with respect to with respect to any claim for a fraudulent inducement to enter into an integrated contract of whether the integrator whether the integration clause itself makes the contract fully integrated or whether  sophisticated parties have a long contract but we those circumstances this is not about where we might think it was a carefully worded the wording of this contract is different from the wording you know your the contractors both of those cases involve merger clauses that spoke of superseding any representation or agreements or h c b was all prior negotiations law when you're talking about prior representations of representations respecting a subject matter that is specifically within the written contract you cannot introduce parol evidence the point that i make and i think i've made previously perhaps not as articulately as i would like to is that where you have an entire article nine that deals with financial adjustments and where nine dollars expressly addresses freshman enrollment growth which is the gravimeter of this complaint nine dollars cannot be interpreted to include that with its broad general language regarding prison conditions including client student population labor food and supply comes a right you could be argued with some force you say nine two deals with this specifically but i will hear from being a more specific application of the understanding that the parties aren't going to be locked in when something like student numbers have changed can you point me to something that really drives home that nine two is supposed to be exclusive val it sounds to me that your point is that parole evidence shouldn't be permitted to interpret the contract because there's a merger clause but in response to judge devices question you point to items beyond the contract well every every contract everything contract has to be interpreted based upon some outside evidence to understand what the nature of the claim is before you can make the determination with regard to it is not is not also asking for isn't it isn't it isn't that just are asked to say look the outside evidence we'd like are the representations that we think that were made to us about future i mean it sounds like what you're saying is that it would be included no i don't think that's what they're asking for what they're asking for is to with out without the evidence without the evidence which i will get through if you allow  regarding freshman enrollment which is not dealt with in paragraph nine point one but is dealt with specifically in exclusively in line point two we all know the rule that when you have something specific it is it is predominant over that which is general and it seems to me that that's why i say nine point one is self limiting and cannot be used as a door open to allow in evidence and i'm not sure what the poll evidence would be that they warrant in except what way shape or form and by any language in nine point one but nine point one if you want to specific it says tracks of student population drexel student population judging from seven thousand in the subsequent year and then up to thirty thousand but it doesn't talk about freshman enrollment at all in the r f a well somebody said but you know freshmen enrollment is one major driver of overall student population that's where the bulk of new students come in so you could logically understand that as a component actually that's not that's not the case what is the case is that you have graduate students you have online students you have non mandatory people who don't live in the residences non mandatory mill services all laid out  all of the testimony which was the subject matter of our motion for summary judgment and what they were what they were complaining about improperly because it's totally contrary to the testimony which i'd be happy to get through to their admissions what they were complaining about was that they didn't understand that some of the freshman in roman might go down because it's only freshman residences who are mandatorily required to have meal service on campus so you're talking about you're talking about when you talk about that the vendor or event the contract you're talking about meals at the other outside then use you're talking about catering service which under the agreement was totally non exclusive you're talking about nonresidents buying meals and in fact they made it clear in the contract that s that so was going to have to use its best efforts to go out and expand and sell those non mandatory types of types of services so i think  there is no basis in the testimony in the in the contract itself with respect that would support the notion that nine dollars refers to grab a member of the complaint that is made in this case so it seems to me that what you keep talking about is parole evidence is a that i still win that's not that's not the issue before me the issue is does is parole evidence from their side and ultimately from your side can it come in or are we limited to the agreement it  is what i'm hearing you say by virtue of referring to that pearl evidence is that's pretty much what you wanted to have happen as well as the subjects now what i want to i'm saying is that the law in pennsylvania is clear that this is a time in another life attracted a lot of merger clauses if one refers simply to agreements and not to representations and warranties and things like that then representations in this case are allowed to come in and specifically nine dollars talks about representations so i'm not ok judge ample i would suggest to the contrary that pennsylvania law would not allow that it wonder what is pennsylvania law say with respect to representations remember the fact patterns in h b c and yucca dealt with a merger integration clause that that pertains clear that if the subject matter is with in the end an integrated contract whether the integration clause is interpreted one way or the other is irrelevant if the contract is nonetheless integrated i think judge ambrose point might be extended to say that when you have an integration of merger clause that says we go this far but not further there's a negative inference to be drawn that the parties decided not to go as far as integrating representations and i don't think you had a case in which a court had a merger clause that affected only agreements but nonetheless extended its representations because as you rightly say the contract is under pages law and it's comprehensive in other things i think there might be a negative inference to draw from the omission of representations there and then the dealing with representations in ninety one  twelve there is there is this there is no evidence in this case offered by said decks that it anytime during the negotiations that distinction was made these these provisions largely emanated gallon tea or a commitment with regard to freshmen and roman and later just throw in catering but mostly freshman enrollment and she couldn't get it because about whether or not so many things can fit on the head of a pin i guess you can do that but to me that doesn't make sense as a matter of even contract interpretation under pennsylvania law you have a specific provision clearly requested vice to decks in nine point two nine  is the key for them nine dollars is an afterthought which they didn't argue in the summary judgment argument at all the transcript is there for you to say but on appeal they raise it as well you know it wasn't better than patients generally weren't leaf heard only agreements were referred to in ten point one and consequently it's not fully fully merged that seems to me to be a and attenuation of reasonableness and i can't there's no evidence to asked to say that the toll was wrongly decided she refused to do that and said she found that it was consistent with what they were requiring here and did not reject the inextricably intertwined case which is being used in all can see what i was talking about including my language that said we have to attempt to control our own future and create certainty said as an extension of good faith if you say to december th here's what the offer you when they came back they didn't that they didn't address that at all what they said was day we thought at the time and still think that the decks rejected our terminations asserted its own right to terminate because every day filed this lawsuit the next day it didn't say but we accept your proposal and we'll work on giving it didn't say if your terminations for convenience is effective we have to stay until december th anyway but will only do so if you pay us a higher rate or charge us a lower commission it didn't say what's the deal but then what happens i mean there's two things that could possibly argue against that one is that you know artfully they did except by using the word agrees we don't have to decide that necessarily because that may be something a jury needs to decide number two there may be a course of conduct post september th letter that indicates that there is an agreement that they go forward and they will go on to say december t and in that context they will get paid roughly three dollars a student more and have a reduced commission now i'm not saying that's right or wrong i'm just saying is that really for a court to decide a summary judgment i think it is for a court to decide in summary judgment because i think here it's clear there was no meeting of the mind there was no consideration in staying at least until december th based upon our notice of terminations for convenience they were just doing what they were already obligated to do they were not obligated past november once they terminated or you is the question whether or not there terminations book was was correct or whether or terminations for convenience was correct if they have the right to terminate they don't have to state had november they certainly can terminate for convenience but nov and get it day from november till december so why isn't that consideration that they they would have had to stay even a few stuart on on the da day we offered them more to stay and then when they eventually stayed which they had to do apparently they can't then get them or because there was no consideration for them or the preferred term because they had to do it anyway so it sounds to me like they did last paragraph on page two of your letter is it can never be a consideration it's just almost like  dangler that i guess it has zero contract value how could they how could the deck so ever avail themselves of this with the consideration sensor also telling us that they had  today because we can modify that by an agreement between the parties but he went on quite a rating for the modification modification still take consideration what the modified what's the consideration for that  they we would have the payment in addition the additional payment to them would be the consideration for that modification since since they did not accept it and simply went ahead because for a different reason to stay there i think under the colar case this is not consideration and i would also i would also  capital investment when it was due which was about eleven million dollars and it seems to me that we're reading more into the issue of consideration than it deserves if they stayed and got paid according to the contract because they didn't accept our offer for them to stay and work under our proposition but for a totally different reason that would have been a different a different situation but they didn't do that what they did was they filed a lawsuit that sought damages under our underlying management agreement not under some september th agreement which didn't come up my recollection serves me correctly until they filed their supplemental complain although if you have a course of action for an agreement that's been rescinded and it was some conduct that you perceive was a violation of that agreement or a tort claim that relates to the inducement pertaining to that agreement he still go forward even though the contract it's still possibly a viable claim even though the contract no longer exists right out of it well i guess i guess you have that alternative but that i don't that's not what happened here that's not what happened to me now i know i use a lot of the time of the court most both plea trying t given that we don't require a legal theory to be fully developed in the pleading stage well it was not adequate notice of care of their legal theory because what they what they what they said was that and forty they totally abandon it and then they went further if you look at if you actually look at page thirty eight of the out of an abundance of caution but he did say to mr fastow so outside of count five but outside of count five what i said was correct and mr f alleged agreement because if that turned out not to be an agreement then they were attempting to preserve their their quasar contract claim saying well we render a benefit and th did not pursue any argument in the court below at the time a summary judgment related to the alleged pension withdraw liability under the m e p pay  we think as a matter of fact that as a matter of law that claim really doesn't exist they did not also raise it not only at the time of the summary judgment argument they did not raise it again in their opening brief and they in this court and they did not raise it again in the in their reply brief in this corner and so i will not address it unless you want me to discussing earlier if it's contract you could get it if it's what you could get it as contract you can there is no punitive damages claim at all on the whole of the facts of this contract claim there has to be a predicate tort claim so if the fraud claim fails the punitive damage claim necessarily fails but you have to prove that insufficient to satisfy the requirements for punitive damages arc what we're focusing on is the fraudulent inducement yes the breach of the contract for the supplemental agreement if there was a supplemental agreement the unjust enrichment those who are principal issues the good faith we  i mean unless there's something we have actually missed i'm not particularly interested in any argument otherwise would be made on the merits because that's not one appellate court is for and oral argument is essential the judge you tell me what your concerns are all respond to them the question is from my colleagues are there any additional questions or concerns they have that should be addressed now ok thank you very haven't rule section nine point one is a broad pronouncement about representation and it says that each party has relied on representations about existing and future conditions and projections made by the other exclusive or to give nine point one which by turns again is quite broad and unduly narrow reading mr cogent argument this morning depends heavily on for all evidence what representations were made what the deck so did or didn't kno are two distinct questions here one is why didn't we agree and that perhaps perhaps not of goodwill towards drexel at that point in a relationship but because it actually makes care of students and then there's a nd question of what we agreed to  and the only possible thing that we agree to here is drexel dohar in the september one thousand flatter the fact that there are motivation for agreeing with you that we don't leave students mid term doesn't mean that we're forgoing the extra compensation that drexel put on the table in that never happened flatter and no honestly with respect to the n g s enrichment claim is just forty nine to fifty of our opening brief walk through the explanation of what happened in this hearing before  judge belsen the only way the premise of the court's questions was that if there is a valid contract and there is no breach are you still pursuing an unjust enrichment claim as to that tw damages that wouldn't otherwise be available under contract so the extent there was a waiver or a cap at the dish a court level it your position that wherever the cowboys fit the damages that we could ever receive under unjust enrichment cannot everyone thank you very much very very well presented argument and