Sodexomagic, LLC v. Drexel Univ. (333 F. Supp. 3d 426, 2018)

Citations

333 F. Supp. 3d 426

Full opinion text

Baylson, District Judge

I. Introduction...435

II. Factual Background...436

(A) The Parties...436

(B) The Bid Process...436

(D) Freshman Enrollment Declines...440

(E) Sodexo Misses Profit Projections...441

(F) Contract Termination...441

III. Motions to Strike...441

(A) Drexel's Motion to Strike...441

(1) Legal Standard...442

(2) Discussion...443

(B) Sodexo's Motion to Strike...444

IV. Motions for Summary Judgment...444

(A) Legal Standard...444

(B) Drexel's Motion for Summary Judgment as to Sodexo Count I (Fraudulent Inducement)...445

(1) The Parol Evidence Rule...445

a) Procedural Background...445

b) The Parties' Contentions...446

c) Pennsylvania Caselaw...446

d) Integration...450

e) Ambiguity...452

f) Sodexo's Submission Regarding the Parol Evidence Rule...452

(2) Gist of the Action Doctrine...453

(3) Clear and Convincing Evidence of Misrepresentations or Omissions...456

(B) Drexel's Motion for Summary Judgment as to Sodexo Count II (Breach of Contract)...457

(1) Drexel's Motion and Reply...457

(2) Sodexo's Response...457

(3) Analysis...457

(1) Briefing with Respect to Drexel's Motion...460

a) Drexel Motion for Summary Judgment on Sodexo Count V (Breach of Contract)...460

b) Sodexo's Response to Drexel's Motion...460

(2) Briefing With Respect to Sodexo's Motion...460

a) Sodexo's Motion for Summary Judgment as to Sodexo Count V (Breach of Contract)...461

b) Drexel's Response...----

(3) Analysis of Cross-Motions for Summary Judgment as to Sodexo Count V (Breach of Contract)...----

a) The Alleged 2016 Agreement...461

i. Meeting of the Minds...462

ii. Consideration...463

b) Sodexo Count V Continued: Claims Based on the Management Agreement...464

(D) Drexel's Claims against Sodexo...465

(1) Fraudulent Inducement (Drexel Count I)...465

a) Sodexo's Motion...465

b) Drexel's Response...465

c) Analysis...466

(E) Breach of Contract (Drexel Count II)...467

(1) Breach of Key Management Positions Clause...467

(2) Breach of Monetary Support Provisions...468

(3) Breach of Provision for Visits from "Magic" Johnson...470

(4) Breach for Failure to Discuss Key Performance Indicators...471

(F) Drexel's Motion for Summary Judgment on Sodexo Count III (Unjust Enrichment)...472

(1) Parties' Contentions...472

(2) Analysis...472

(G) Drexel's Motion for Summary Judgment on Sodexo Count IV (Punitive Damages)...474

V. Conclusion...474

I. Introduction

At its core, this case concerns a breakdown in business relations between a large, private university and its dining services vendor, with which it had a multimillion-dollar, long-term contract.

The case began with Plaintiff SodexoMAGIC, LLC ("Sodexo") filing a four-count complaint alleging: (1) fraudulent inducement; (2) breach of contract; (3) unjust enrichment; and (4) punitive damages. Since then, Defendant Drexel University ("Drexel") asserted two counterclaims against Sodexo for, (1) fraud, and (2) breach of contract, and Sodexo added one supplemental claim to its original allegations ("Count V") for breach of contract. Accordingly, there are now five claims alleged against Drexel and two counterclaims alleged against Sodexo. The case has featured various motions to dismiss, motions to compel, attorney-client privilege disputes, and motions for sanctions-among many other motions-which have been extensively litigated and decided by this Court in prior opinions (or held in abeyance pending further developments), and will not be restated here.

Presently before the Court are four motions:

(1) Drexel's Motion to Strike seeks to strike four declarations submitted by Sodexo in support of its Response to Drexel's Statement of Undisputed Material Facts. (ECF 208).

(2) Sodexo's Motion to Strike seeks to strike Drexel's Appendix to its Motion for Summary Judgment. (ECF 221).

(3) Sodexo's Motion for Summary Judgment seeks a ruling that, as a matter of law, dismisses Counts I and II of Drexel's Counterclaim for fraud and breach of contract, and enters judgment in favor of Sodexo as to Sodexo's Count V. (ECF 200).

(4) Drexel's Motion for Summary Judgment seeks to dismiss all five Counts brought by Sodexo. (ECF 220).

II. Factual Background

(A) The Parties

Plaintiff SodexoMAGIC is a Delaware limited liability company with its principal place of business in Maryland. (ECF 211 ¶ 1). SodexoMAGIC is a joint venture between Sodexo Operations, LLC, a wholly-owned subsidiary of Sodexo, Inc., and Magic Food Provisions, LLC, a wholly-owned subsidiary of Magic Johnson Enterprises. (ECF 213, at 1 n. 1). Defendant Drexel University is a Pennsylvania non-profit institution based in Philadelphia. (ECF 211 ¶ 2). Marriott Management Services Corp., which was subsequently acquired by Sodexo Management, Inc., began providing dining services at Drexel in 1995. (ECF 11 ¶ 5; ECF 213 ¶ 18). Dining services generally consisted of managing and operating student and faculty dining halls and retail locations and catering University meetings, events, and functions. (Id. ¶ 19).

(B) The Bid Process

On April 18, 2014, Aramark Corp. ("Aramark"), a dining services competitor of Sodexo Management, Inc. (see ECF 211 ¶ 4), approached Drexel with an unsolicited proposal to provide dining services at Drexel. (Id. ¶ 6). The operative contract then in place between Drexel and Sodexo Management, Inc., was not due to expire until 2018. (Id. ¶ 7). Nevertheless, following Aramark's proposal, which included an offer to invest $14.5 million in Drexel's campus, Drexel terminated its contract with Sodexo Management, Inc., and began a process of putting their dining services contract out to bid in June, 2014. (Id. ).

Drexel's dining services bidding process occurred in two phases. (Id. ¶ 8). On June 9, 2014, as part of the first phase, Drexel distributed a Request for Proposal Qualification Overview (also knowledge as a Request for Information, or "RFI") to five companies to qualify the firms with the best chance to compete for the contract. (Id. ¶ 9). The RFI sent to potential bidders asked responding firms, among other things, to "commit a minimum of $20M over the 10 year agreement with $12M paid up-front." (Sodexo SOF, Ex. 9). The RFI estimated the contract value "to be between $275M and $300M over the term," but made clear "this is strictly an estimate based on past performance and is in no way to be misconstrued as a firm commitment." (Id. ).

As part of the second phase, following a determination of which companies responded favorably to the RFI, Drexel distributed a Request for Proposal ("RFP") on July 2, 2014 to four companies that remained in contention for the dining services contract. (Id. ¶ 9). Among the four companies remaining in contention were Aramark and SodexoMAGIC. (Drexel SOF, Ex. 3-8). The RFP stated that "The University's Strategic Plan calls for an enrollment increase from our current number of 26,132 to 30,470 students by 2017 and to 34,000 students by 2021." (Sodexo SOF, Ex. 14). The RFP continued, "[p]roposed programs, facilities and infrastructure of services should be aligned to this plan." (Id. ). The RFP made clear that "traditional meal plans (aka residential, 'all-inclusive,' board plans, etc.) are required for residential freshmen and may be purchased on a voluntary basis by all other students and customers." (Id. ).

In an appendix to the RFP, Drexel projected the number of dining services participants who would purchase a variety of meal plans, with projections "based on information available at time of budget submission." (Id., Ex. 14, at App'x. II). Drexel calculated the estimated number of meal plans based on an assumption of 3,100 students in the freshman class. (Resp. to Sodexo SOF ¶ 18; Sodexo SOF, Ex. 16 (Email from Drexel representative stating, "we gave the bidders participant numbers based on a freshman class of 3,100 and the FY budget that was loaded by Finance is based on 2,800.") ).

In a pre-proposal meeting Drexel held separately with Sodexo and other bidders in July, 2014, Drexel informed the prospective bidders via PowerPoint presentation that the University's "Strategic Growth Plan" was to:

[g]row enrollment commensurate with student demand and academic capacity, initially by adding graduate and transfer students, and then, after a three-year period, gradually growing subsequent undergraduate freshman classes. By 2017, Drexel will increase enrollment from our current number of 23,500 to 30,470 students; by 2021, Drexel will increase to 34,000 students.

(Sodexo SOF, Ex. 11).

The PowerPoint presented to the prospective bidders also stated that the "Strategic Growth Plan" was to:

Grow enrollment commensurate with student demand and academic capacity, initially by adding graduate and transfer students, and then, after a three-year period, gradually growing subsequent undergraduate freshman classes.

(Id. ).

Sodexo submitted its Initial Proposal for the dining services contract to Drexel on July 25, 2014. (Id., Ex. 19). Sodexo's Initial Proposal stated:

The financial terms set forth in this proposal and other obligations assumed by SodexoMAGIC herein are based on conditions in existence on the date SodexoMAGIC commences operations, including, by way of example, Client's attendance history; labor; food and supply expenses; and federal, state and local sales, use and excise taxes. In addition SodexoMAGIC has relied on representations regarding existing and future conditions made by [Drexel] in connection with the negotiation and execution of the proposal. In the event of a change in the conditions or the inaccuracy or breach of, or the failure to fulfill, any representation by [Drexel], the financial terms and other obligations assumed by SodexoMAGIC shall be renegotiated on a mutually agreeable basis to reflect such change, inaccuracy or breach.

(Id. ).

On August 6, 2014, Drexel asked Sodexo and Aramark to each submit a Best and Final Offer ("BAFO"). (Resp. to Sodexo SOF ¶ 24). On August 8, 2014, Sodexo submitted its BAFO. (Id. ¶ 25). On August 12, 2014, Drexel's Campus Dining Selection Committee unanimously selected (9-0) and recommended awarding Sodexo the campus dining contract. (Sodexo SOF Ex. 21). On August 15, 2014, Drexel sent a letter to Sodexo, which stated, among other things:

I am pleased to tell you that SodexoMAGIC has been awarded the campus dining contract. The award includes all financial components of the original SodexoMAGIC proposal submitted as well as all enhancements included in the Best and Final Offer ("The Proposal"). Beginning August 25, 2014, Drexel University proposes to reinstate the contract currently in effect and incorporate The Proposal as an amendment while a new agreement is negotiated during a period not to exceed 60 days.

(Id., Ex. 22).

From this stage onwards, the principal negotiators of the Management Agreement were, on behalf of Drexel, Rita LaRue, Don Liberati, Stacey Kara, Melissa Brown, and Paula King (id. ¶ 31); and on behalf of Sodexo, Nancy Arnett and Rush Sherman. (Id. ¶ 32).

On September 12, 2014, Sodexo sent to Drexel a first proposal for the terms of the Management Agreement, and then, on September 19, 2014, Sodexo sent to Drexel a first draft of the comprehensive Management Agreement. (Resp. to Sodexo SOF ¶¶ 30, 33). On September 30, 2014, LaRue (of Drexel) wrote to Sherman (of Sodexo): "We received the draft master agreement.... I do have to say that there are several inconsistencies and/or omissions from the SodexoMagic proposal and best and final offer that my team is having to check, revise and add...." (Sodexo SOF, Ex. 25).

As negotiations proceeded, Arnett (of Sodexo) wrote an internal email to Sodexo listing three "potential stumbling blocks":

1. Indemnity ...

...

2. Meal Plan Rates ...

...

3. Financial Assumptions: In the RFP and presentations, Drexel provided specific student enrollment goals and suggested that bidders should take these into consideration when preparing a financial proposal. We included these assumptions to act as a trigger for discussion and mutually agreeable modification to the contract in the financial assumptions section-however [LaRue] violently objected to any kind of mention of specific numbers. She expressed that these were goals only and were never intended to be anything that we could count on.... I stressed that the numbers are not included as a guarantee on Drexel's part, but rather a baseline to trigger a conversation. Went over like a lead balloon. We left it that I would ask legal to take another pass at the language and they would see, but she told me that she would not take any type of specific numbers to her leadership.

...

I think that finance should prepare a cast of numbers at their proposed meal and potentially lower student population rate to better judge the overall [year-over-year] impact of any reductions to Sodexo.

(Id., Ex. 27).

Ultimately, the parties agreed to the Management Agreement, the most relevant sections of which are excerpted below:

3.1 Term and Termination.

A. The term of the Agreement is ten (10) years, ten (10) months, and five (5) days [ ] commencing [retrospectively] on August 25, 2014 and continuing until June 30, 2025.

...

B. If either party breaches a material provision hereof ("Cause"), the non-breaching party shall give the other party notice of such Cause. If the Cause is remedied within ten (10) days in the case of failure to make payment when due or thirty (30) days in the case of any other Cause, the notice shall be null and void. If such Cause is not remedied within the specific period, the party giving notice shall have the right to terminate this Agreement ....

C. Either party may terminate this Agreement at any time upon sixty (60) days' prior written notice to the other party.

...

8.15 Campus Visits by Earvin "Magic" Johnson. Mr. Johnson shall appear on [Drexel's] campus (or mutually agreed upon location) as mutually agreed by the parties for up to two (2) 90-minute speaking engagements annually during the term of this Agreement provided that the appearance dates can be mutually agreed upon by the parties. At the time of the request, [Drexel] shall propose a minimum of three (3) dates for consideration and approval subject to Mr. Johnson's availability and provide a proposed agenda for Mr. Johnson's review and consideration. Any such request shall be made a minimum of twelve (12) weeks in advance.

...

8.17 Measurable Outcomes. SodexoMAGIC shall be evaluated using mutually agreed upon Key Performance Indicators (KPIs) set forth in Exhibit J which shall be used to monitor SodexoMAGIC performance and [Drexel] patron satisfaction. The KPIs shall be reviewed annually by the parties during the Annual Business Review ....

...

9.1 Changes in Policies and Practices. The financial terms set forth in this Agreement and other obligations assumed by SodexoMAGIC hereunder are based on conditions in existence on the date SodexoMAGIC commences operations, including by way of example, [Drexel's] student population; labor, food, and supply costs; and federal, state and local sales, use and excise tax. In addition, each party has relied on representations regarding existing and future conditions and projections made by the other in connection with the negotiation and execution of this Agreement. In the event of a change in the conditions or the inaccuracy or breach of, or the failure to fulfill, any such representation by a party, the financial terms and other obligations assumed by the other party shall be renegotiated on a mutually agreeable basis to reflect such change, inaccuracy or breach. SodexoMAGIC shall submit any requested changes and the cause for such changes to [Drexel], in writing, prior to any negotiations.

9.2 Financial Assumptions. In the interest of a strong and lasting partnership, [Drexel] agrees to review the following items with SodexoMAGIC at the annual meeting in July of each year and discuss any applicable revisions to the Agreement that are mutually agreeable based on any deviations, provided that the relevant data and supporting documentation is submitted to [Drexel] thirty (30) days in advance of the meeting. [Drexel] recognizes that SodexoMAGIC made certain assumptions in preparing the financial package offered in this Agreement and understands that changes to the financial assumptions below may have an adverse economic impact on SodexoMAGIC; in such cases, [Drexel] shall work with SodexoMAGIC in good faith to mutually agree upon solutions in an effort to counter such impact. SodexoMAGIC acknowledges its responsibility to respond quickly and expertly to factors under their control that may affect these outcomes.

• ...

• Parties agree that the University's growth is a critical factor in calculating the Investments afforded under this Agreement and it has been projected by SodexoMAGIC that this growth will realize an increase of 2% per year in the freshman class year over year....

• ...

• Minimum Catering Net Sales of Three Million Four Hundred Thousand Dollars ($3,400,000) in full Contract Year 1 (July 1, 2015 through June 30, 2016) with projected growth of three percent (3%) annually thereafter.

...

10.11 Amendments to Agreement. All provisions of this Agreement hereto shall remain in effect throughout the term thereof unless the parties agree, in a written document signed by both parties, to amend, add or delete any provision. This Agreement contains all agreements of the parties with respect to matters covered herein, superseding any prior agreements, and may not be changed other than by an agreement in writing signed by the parties hereto. This Agreement shall inure to and bind all parties, their successors and assigns.

10.12 Collection Costs and Costs to Enforce Indemnity Obligations. The parties shall pay each other the reasonable collection expenses, attorneys' fees and court costs incurred in collecting from each other any amount not paid when due, and/or in connection with the enforcement of an indemnity obligation of a party under this Agreement.

(Id., Ex. 1).

The parties executed the Management Agreement, which is dated May 21, 2015, in late-May, 2015. (Drexel Resp. to Sodexo SOF ¶ 40).

(D) Freshman Enrollment Declines

Incoming freshmen for the 2015-2016 academic year had an "unofficial" deadline of May 1, 2015 for accepting offers to attend Drexel. (Id. ¶ 46). A set of "talking points" for a Drexel Board of Trustees meeting sent on May 11, 2015 stated that "[m]uch of what we expected, given changes we've made in our approach to recruiting and enrolling new students, has come to fruition," including "fewer applications," and "fewer offers of admission." (Sodexo SOF, Ex. 34). At that point in time, Drexel had "2,902 deposits for the freshman class," which, after "melt" (expected declines based on students' changes in circumstances and choice of college) would be expected to yield somewhat fewer freshman enrollees. (Id. ). In fact, that email stated, "[t]he adjusted budget is predicated on a class of 2,600, but we believe we are likely to do better than that due to lower melt." (Id. ).

On June 8, 2015, President Fry of Drexel issued a "Dear Colleague" letter disclosing that Drexel would not enroll additional students from the waitlist and that the freshman class would be smaller than in prior years. (Sodexo SOF Ex. 33). The next day, Sodexo employee William Cunningham emailed, among others, LaRue (of Drexel), forwarding President Fry's "Dear Colleague" letter and stating, "[t]he message below looks like there will be budget tightening and less mandatory dining plan customers for next year. Have you gotten any update as to what next year's actual first year student enrollment with [sic] be?" (Id. Ex. 36). LaRue forwarded the email to Liberati (of Drexel), who responded: "I guess they were going to find out sooner or later ..." (Id. ). LaRue later responded to Sodexo's original email, stating, "Currently, there are 2,918 freshmen admitted. It will be less with melt, potentially 2,600-2,700 but the rate of melt is challenging to predict." (Drexel SOF Ex. 3-20). Drexel's freshman enrollment for the 2015-2016 academic year was 2,720. (Sodexo Resp. to Drexel SOF ¶ 103).

(E) Sodexo Misses Profit Projections

On November 4, 2015, Sodexo's Jeff Hunt stated that the gross project margin for the Management Agreement, initially "projected at 13.9% year 1 and 9.4% year 2," constituted "miss[ed] profit projections," because "[y]ear 1 actual (FY 2015) was 3.2% and year 2 projected (FY 2016 budget) is 6.2%." (Id., Ex. 40). Two days later, by email dated November 6, 2015, Hunt instructed Sodexo's Chris Elliott to "set a timetable for contract restructuring" because the gross profit margin that Sodexo's Drexel account was generating did not meeting projections. (Sodexo Resp. to Drexel SOF ¶ 105).

In a meeting held on November 18, 2015, Sherman (of Sodexo) told LaRue (of Drexel) that Sodexo was experiencing a year-to-date "shortfall of $664,436 in mandatory meal plans" against Sodexo's budget and a "FY16 shortfall, against SodexoMAGIC budget, [of] $2,120,523." (Drexel SOF, Ex. 3-24).

After several more discussions between the parties over the ensuing months (see Sodexo Resp. to Drexel SOF ¶¶ 108-112; Sodexo SOF ¶¶ 54-56), Sodexo sent Drexel a letter proposal on June 28, 2016, seeking to change the Management Agreement, which included terms increasing meal rates, hours of operation, and compensating Sodexo for "shortfalls in mandatory boarders and contractual catering." (Drexel SOF, Ex. 3-26). By letter dated July 19, 2016, Drexel stated its willingness to accept many of the terms in Sodexo's letter, while submitting counterproposals on other terms. (Sodexo Resp. to Drexel SOF ¶ 114).

(F) Contract Termination

On September 19, 2016, Drexel notified Sodexo by letter that it was terminating the Management Agreement for convenience, pursuant to section 3.10(C), effective December 10, 2016. (Drexel Resp. to Sodexo SOF ¶ 67; ECF 130-1). The letter also offered to pay Sodexo a daily rate of $22.44 and accept a reduced commission of 7.75% for the fall term if Sodexo agreed to remain on campus through December 10, 2016. (Sodexo Resp. to Drexel SOF ¶ 124). Sodexo responded by letter dated September 26, 2016, stating that it was exercising its "right to terminate the Agreement for Cause effective at the end of today," and that it "intended to end the cure period at the close of business ... effective at the end of today." (ECF 130-9). Sodexo also stated that it would "[agree] to remain on campus through December 10, 2016" and that it "does not leave students in mid-term." (Id. ).

The next day, September 27, 2016, Sodexo filed the present lawsuit. (See ECF 1). Sodexo provided dining services to Drexel's students through December 10, 2016. (Drexel Resp. to Sodexo SOF ¶ 90). Drexel did not pay an increased daily rate or charge Sodexo a reduced commission for Sodexo's dining services rendered through December 10, 2016. (Id. ).

III. Motions to Strike

(A) Drexel's Motion to Strike

Drexel seeks to strike three declarations submitted by Sodexo in support of its response to Drexel's statement of undisputed facts. Drexel bases its motion on the "sham affidavit" doctrine, asserting that portions of the declarations directly contradict prior deposition testimony which was explicitly adopted as Sodexo's corporate representations. In response, Sodexo contends that the declarations elucidate, rather than contradict, prior testimony: Whereas prior testimony pertained to statements about Drexel being unable to predict future student enrollment, the declarations in question explain that Drexel did not make any statement that it knew enrollment would decline. In its reply, Drexel contends that it had no duty to disclose its knowledge of future enrollment figures, and therefore, because the declarations largely pertain to the extent of Drexel's forthrightness regarding future student enrollment, the entirety of the declarations-rather than any portions thereof-should be stricken.

(1) Legal Standard

In the Third Circuit, it is well-settled that "a party may not create a material issue of fact to defeat summary judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict." Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004). When a party does not explain the contradiction between the subsequent affidavit and the prior deposition, the alleged factual issue in dispute can be perceived as a "sham," thereby not creating an impediment to a grant of summary judgment based on the deposition. Id."The court may ... disregard an affidavit when the 'affiant was carefully questioned on the issue, had access to the relevant information at that time, and provided no satisfactory explanation for the later contradiction.' " Daubert v. NRA Grp., LLC, 861 F.3d 382, 392 (3d Cir. 2017) (quoting Martin v. Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d Cir. 1988) ).

The Court "may similarly disregard an affidavit 'entirely unsupported by the record and directly contrary to [other relevant] testimony,' or if it's 'clear' the affidavit was offered 'solely' to defeat summary judgment[.]" Daubert, 861 F.3d at 392 (quoting Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 254, 253 (3d Cir. 2007) ); cf. In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., 639 F. App'x 874, 877-78 (3d Cir. 2016) ("The timing of the testimony recanting the prior sworn testimony clearly increased the likelihood that it was intended solely to defeat the motion for summary judgment.") (quoting In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 195 (2d Cir. 2013) ).

However, the inverse is also true. The Third Circuit has underscored that even when "there is a discrepancy between deposition testimony and the deponent's later affidavit, a district court is not required in all cases to disregard the affidavit." Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004) ; Armstrong v. Wes Health Sys., 188 F.Supp.3d 478, 482 (E.D. Pa. 2016). A court may disregard any alleged inconsistency if the affiant offers a "satisfactory explanation" for the conflict between the affidavit and deposition testimony, such as that the subsequent affidavit explains or clarifies a witness's deposition testimony. Jiminez, 503 F.3d at 254 ; see, e.g., Videon Chevrolet, Inc. v. Gen. Motors Corp., 992 F.2d 482, 487-88 n. 16 (3d Cir. 1993) (holding that a party's admission in his deposition which conflicted with an expert's affidavit did not amount to such "clear and extreme facts" necessary to warrant ignoring the later affidavit and concluding that the witness conceded a material issue in the case); Davis v. Mothers Work, Inc., 04-cv-3943, 2005 WL 1863211, at *7 (E.D. Pa. Aug. 4, 2005) (holding that, despite an inconsistency in the declaration and the deposition testimony, a subsequently filed declaration should be considered because it clarified the witness's earlier deposition testimony). A court may also disregard inconsistencies where there is independent evidence in the record to bolster an otherwise questionable affidavit. Armstrong, 188 F.Supp.3d at 482.

(2) Discussion

The Court begins its analysis with two of the declarations, which are quoted by Drexel in its motion. In the declarations, Sodexo employees state that "Drexel employees or representatives never told me or, to my knowledge, anyone at Sodexo or SodexoMAGIC that there was a risk of enrollment decline." (ECF 208-1, at 5). Drexel claims that this statement is incompatible with deposition testimony-later adopted by Sodexo's corporate representative-in which a Sodexo employee recalled a Drexel employee saying, in sum and substance, "nobody could predict what the freshman enrollment would be going forward," and "they didn't know exactly where it [freshman class enrollment] would be." (Id. at 4).

The Court finds that, in this instance, the deposition testimony and the declaration are compatible. While the deposition testimony stands for the proposition that Drexel made statements that it could not predict freshman enrollment, the declarations assert that Drexel never said there was a risk that freshman enrollment would decline. One can imagine two statements, in which the first occurred and the second did not: (1) "Drexel cannot predict what student enrollment will be next year," and (2) "There is a risk that freshman student enrollment at Drexel will go down next year." The first statement speaks to the predictability of freshman enrollment numbers. The second statement speaks to the risk of enrollment decline. It is entirely possible for Drexel to discuss the predictability of freshman enrollment without stating that there is a risk of enrollment decline. To the extent that the two technically overlap, the Court declines to strike the declarations on this basis.

In making this ruling, the Court is especially mindful that this motion does not present "clear and extreme facts," which would justify striking the declarations. Videon Chevrolet, Inc. v. Gen. Motors Corp., 992 F.2d 482, 487-88 n. 16 (1993). Moreover, to the extent any discrepancy might exist between deposition testimony and declarations, the Court notes that it is not required to disregard the affidavit, but instead may consider its weight in light of any apparent contradiction. See Baer, 392 F.3d at 624 (where "there is a discrepancy between deposition testimony and the deponent's later affidavit, a district court is not required in all cases to disregard the affidavit"); Heasley v. EchoStar Satellite L.L.C., No. 08-cv-261, 2009 WL 1457733, at *1 (W.D. Pa. May 22, 2009) ("gaps or minor discrepancies in Plaintiff's testimony [ ] bear on her credibility and are matters properly reserved for cross-examination.").

Drexel also seeks to strike a third declaration, that of Thomas Farabaugh. Drexel bases this portion of its motion on a perceived contradiction between, on one hand, a representation made by Sodexo in its responses and objections to Drexel's Rule 30(b)(6) deposition notice and, on the other hand, a representation made by Farabaugh in his declaration. In Sodexo's responses and objections, Sodexo stated that it "hereby identifies the financial model ... as located at SDXMAGIC0003035." (ECF 208-1, at 5). In his declaration, Farabaugh referenced the same spreadsheet, stating, among other things, that "[i]t is not a 'model.' "

The Court agrees with Drexel that these representations present an irreconcilable contradiction. Sodexo may not label something a "financial model," only to later submit a declaration stating that it "is not a model." However, the Court will not strike the entirety of the Farabaugh declaration, as urged by Drexel, but instead strike only the words, "is not a 'model' and" from the sentence in paragraph 9 of the declaration, leaving the sentence which originally began "It is not a 'model' and does not distinguish ..." to begin, "It does not distinguish ...." In so doing, the Court removes only the problematic portion of the declaration, consistent with rulings in other Courts in this Circuit. See, e.g., Koken v. Lexington Ins. Co., No. 04-cv-2539, 2006 WL 5377234, at *3 (E.D. Pa. Feb. 1, 2006), Mathis v. Phila. Newspapers, Inc., 455 F.Supp. 406, 419 (E.D. Pa. 1978) ; Bumbarger v. New Enter. Stone & Lime Co., 170 F.Supp.3d 801, 819-22 (W.D. Pa. 2016) ; Carey v. Beans, 500 F.Supp. 580, 583 (E.D. Pa. 1980), aff'd 659 F.2d 1065 (3d Cir. 1981).

(B) Sodexo's Motion to Strike

In its motion, Sodexo seeks to strike Drexel's appendix to its motion for summary judgment on the basis that the appendix circumvented the Court's Order requiring the parties' briefs to be limited to twenty pages. (See ECF 195, at 4). Drexel contends that its appendix is a distillation of the uncontested statements of facts intended to provide an optional piece of reading for the Court should the Court want to avoid reviewing the statements and responses contained in the parties' statements of undisputed facts and responses thereto.

The Court's Order and Rules are clear that the parties are permitted to file briefs, statements of facts, and exhibits. An "appendix of distilled facts" is not contemplated by the Court, and not permitted by its Rules.

The Court will not consider the appendix when ruling on the present motions. Therefore, the motion to strike is denied insofar as it seeks to strike the appendix for failure to adhere to the Court's Order and Rules. See, e.g., Grey v. Johansson, No. CV 15-2479, 2016 WL 1613804, at *8 (E.D. Pa. Apr. 22, 2016) (denying motion to strike while declining to consider pages exceeding page limitations imposed by Court's policies and procedures).

IV. Motions for Summary Judgment

(A) Legal Standard

A district court should grant a motion for summary judgment if the movant can show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it "might affect the outcome of the suit under the governing law." Id.

A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial burden can be met simply by "pointing out to the district court ... that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548. After the moving party has met its initial burden, the adverse party's response must, "by citing to particular parts of materials in the record" set out specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(c)(1)(A). "Speculation and conclusory allegations do not satisfy [the non-moving party's] duty." Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "that a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor." Id. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

(B) Drexel's Motion for Summary Judgment as to Sodexo Count I (Fraudulent Inducement)

Drexel's Motion contends that Count I of Sodexo's Complaint should be dismissed. Count I of Sodexo's complaint alleges that Drexel knowingly misrepresented during contract negotiations that it anticipated student population growth and, thus, fraudulently induced Sodexo into the economically-unfavorable Management Agreement.

Drexel argues that the gist of the action doctrine bars Sodexo's fraudulent inducement claim because the allegedly fraudulent statements relate to enrollment projections, which the Management Agreement explicitly addresses.

Drexel also asserts that Sodexo cannot prove that Drexel made any misstatements or omissions or that Sodexo justifiably relied on them because: (a) the proposed enrollment plan was a mere projection that was never portrayed as a guarantee, (b) Sodexo knew of Drexel's decreased freshman enrollment prior to ratifying the Management Agreement, and (c) Drexel repeatedly refused to include any fixed enrollment figures in the Management Agreement.

In response to Drexel's Motion for Summary Judgment, Sodexo contends that the gist of the action doctrine does not apply because the duty that Drexel breached was not a contractual duty derived from any student enrollment representation in the Management Agreement but rather a social duty of honesty separately maintainable in tort under Pennsylvania law.

Sodexo also asserts that Drexel made misstatements and failed to disclose its knowledge that future student enrollment would decline (contrary to all projections), such that the only question that remains at this stage is Drexel's state of mind, which is a question of fact inappropriate for resolution on summary judgment. The projections contained in the Management Agreement, Sodexo asserts, demonstrate that Sodexo relied on Drexel's misrepresentations when entering into the contract.

In its reply brief, Drexel contends that Sodexo falls short of offering clear and convincing evidence of any misrepresentations.

(1) The Parol Evidence Rule

a) Procedural Background

After reviewing the parties' voluminous submissions, but prior to oral argument on July 9, 2018, the Court provided notice to the parties of the Court's intention to ask them about the impact of the parol evidence rule. The parties both addressed this point extensively at oral argument. (See ECF 243, at, e.g., 9:15-20:6).

After oral argument, the Court sua sponte ordered briefing from the parties regarding the effect of the parol evidence rule on both parties' fraud claims (ECF 241), which had not been discussed by the parties in their submissions. The Federal Rules of Civil Procedure specifically provide for a court's ability to grant summary judgment on grounds not raised by any party.

After giving notice and a reasonable time to respond, the court may:

(1) Grant summary judgment for a nonmovant;

(2) Grant the motion on grounds not raised by a party; or

(3) Consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.

Fed. R. Civ. P. 56(f)(2) (emphasis added).

Specifically, the Federal Rules of Civil Procedure require that parties be given at least ten days' notice that a court is considering a sua sponte grant of summary judgment. Gibson v. Mayor and Council of City of Wilmington, 355 F.3d 215, 223 (3d Cir. 2004) ; see also Otis Elevator Co. v. George Washington Hotel Corp., 27 F.3d 903, 910 (3d Cir. 1994). This Court provided the parties with notice on July 13, 2018 (ECF 241), and granted both parties an opportunity to supplement their submissions by July 24, 2018. The parties availed themselves of the opportunity, submitting supplemental briefing on July 24, 2018. (See ECF 245 and 246).

b) The Parties' Contentions

Sodexo's submission, discussed in greater depth infra , asserts that the parol evidence rule does not apply to Sodexo's fraud claim because: (1) the Management Agreement is not fully integrated; (2) Sodexo does not seek to explain or vary the terms of the Management Agreement; (3) Sodexo's evidence explains an ambiguous contract provision; and (4) public policy precludes application of the parol evidence rule.

Drexel's submission maintains that the Management Agreement is fully integrated and unambiguous, and that Sodexo's fraudulent inducement claim is barred because it pertains to representations about student enrollment growth, a subject addressed in the Management Agreement itself. However, Drexel simultaneously contends that its own fraudulent inducement claim is not barred by the Management Agreement, because its own claim is not based on Drexel being fraudulently induced to execute the Management Agreement but rather on Drexel being fraudulently induced into awarding it the dining services contract at the bidding stage.

c) Pennsylvania Caselaw

The Pennsylvania Supreme Court has consistently held that, where a contract is fully integrated and unambiguous, parol evidence may not be admitted to support a claim for fraudulent inducement regarding that contract.

In one notable Pennsylvania Supreme Court case, HCB Contractors v. Liberty Place Hotel Associates, 539 Pa. 395, 652 A.2d 1278 (1995), plaintiff HCB entered into four identical contracts with four owners for a construction project. 539 Pa. at 397, 652 A.2d 1278. Each of the four contracts contained express waiver provisions in which HCB agreed not to file any mechanics' liens. Id. Nonetheless, HCB eventually filed claims for liens, alleging that during the contract negotiations, the defendants gave specific assurances that they owned and would continue to own the various project elements on which HCB was to render its services as general contractor. Id. at 398, 652 A.2d 1278. HCB also contended it was unaware that the owners had already transferred ownership to third parties when it limited its right to recovery. Id. The Court held that where a party alleges prior fraudulent oral representations regarding a subject that was specifically dealt with in the written contract, the party alleging such representations must, under the parol evidence rule, also aver that the representations were fraudulently or by accident or mistake omitted from the integrated written contract. Id. at 398, 652 A.2d 1278. HCB Contractors, 539 Pa. 395, 652 A.2d 1278.

The HCB Contractors Court also reconciled a contradictory line of precedent set out in Berger v. Pittsburgh Auto Equipment Co., 387 Pa. 61, 127 A.2d 334 (1956). In Berger, a Defendant-lessee agreed to rent the second floor of a certain property. Berger, 127 A.2d at 335. Plaintiff-lessor knew that the lessee needed this property to store automobile parts of a certain weight. Id. at 335. The lessor assured the lessee that the flooring had been recently strengthened and would support the lessee's goods. In reliance on this representation, the lessee executed the lease. Id. A contemporaneous written collateral agreement stated that: "(t)he tenant has inspected the premises and accepts the property in its present condition." Id. at 335-36. Subsequently, the floor proved incapable of withstanding the required weight. Id. at 337. The lessee vacated, leading to plaintiff's suit. Id. at 335. The Court held that the collateral agreement concerning the inspection of premises only bound the lessee as to any reasonably ascertainable conditions. Id. at 336. Because expert tests rather than visual inspection were necessary to determine the strength of the flooring, the Court found the contractual integration clause inapplicable and, therefore, the parol evidence rule inoperative. Id. The rule laid out in Berger was expounded upon in National Building Leasing, Inc. v. Byler, 252 Pa. Super. 370, 381 A.2d 963 (1977), a similar case concerning misrepresentations about the quality of real estate. The court in Byler had held that, as a general rule, an allegation that fraud or misrepresentation induced the contract would enable a party to escape the confines of the parol evidence rule. Byler, 252 Pa. Super. at 374-75, 381 A.2d 963.

The HCB Contractors court reconciled this inconsistency, holding that

decisions cited by HCB, including Berger, Nadolny [v. Scoratow, 412 Pa. 488, 195 A.2d 87 (1963) ], Highmont Music Corp. [v. J.M. Hoffmann Co., 397 Pa. 345, 155 A.2d 363 (1959) ], and certain decisions of the Superior Court, may be distinguished as dealing with an exception to the strict application of the parol evidence rule in sales and leases of real property where oral representations regarding a lack of physical defects in the property were made and the purchaser or lessee was not able to discover, through visual inspection, that the representations were false.

539 Pa. at 400, 652 A.2d 1278.

The Pennsylvania Supreme Court further emphasized the expansive scope of its holding in HCB Contractors in its 2004 decision in Yocca. See Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425 (2004). In Yocca, the defendants had prevailed in the Court of Common Pleas and the Commonwealth Court on fraud and negligent misrepresentation claims, based on the application of the parol evidence rule. The Commonwealth Court reversed, and the Pennsylvania Supreme Court reversed the Commonwealth Court to hold, consistent with the Court of Common Pleas, that the parol evidence rule barred ... The plaintiffs alleged that a brochure given to them by the Pittsburgh Steelers negligently and fraudulently induced them into buying season tickets for football games based on a misleading picture of the area in which the seats would be located. 578 Pa. at 490, 854 A.2d 425. The plaintiffs further alleged that the Steelers violated the Unfair Trade Practices and Consumer Protection Law ("UTPCPL").

The trial court dismissed the complaint, finding that the season ticket agreement entered into by the Steelers and the plaintiffs was a fully integrated agreement that represented all of the terms of the parties' agreement, thereby "supersed[ing] all of parties' previous negotiations and agreements." Id. at 492, 854 A.2d 425. As a result, because the plaintiffs' claims for fraud and negligent misrepresentation "were directly based on the parties' contractual agreement, they could only be brought as part of [the plaintiffs'] breach of contract claims rather than as separate tort claims." Id. The Commonwealth Court affirmed the trial court's dismissal of the plaintiffs' fraud and negligent misrepresentation claims because they were based primarily on the parties' contract. See Yocca v. Pittsburgh Steelers Sports, Inc., 806 A.2d 936, 946 (Pa. Commw. 2002). However, the Commonwealth Court reversed the trial court's dismissal of the plaintiffs' claim for breach of contract, finding that the brochure in question constituted part of the parties' final agreement. Id. at 942.

The Pennsylvania Supreme Court held that the Commonwealth Court had improperly reversed the trial court's order dismissing plaintiffs' "breach of contract claims because the parol evidence rule bars any consideration of [the plaintiffs'] claims, which are wholly based on the terms in the [ ] Brochure." 578 Pa. at 496-97, 854 A.2d 425. The Pennsylvania Supreme Court explained that, as a threshold matter, the parol evidence rule applies when there is a "writing that represents the entire contract between the parties," i.e., an integrated agreement. Id. at 497, 854 A.2d 425 (citing Gianni, 281 Pa. at 323, 126 A. 791 ). The court explained that,

[t]o determine whether or not a writing is the parties' entire contract, the writing must be looked at and "if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the [parties'] engagement, it is conclusively presumed that [the writing represents] the whole engagement of the parties...." An integration clause which states that a writing is meant to represent the parties' entire agreement is also a clear sign that the writing is meant to be just that and thereby expresses all of the parties' negotiations, conversations, and agreements made prior to its execution.

Id. at 497-98, 854 A.2d 425 (citations omitted).

Thus, if a court finds that the agreement in question is the parties' entire contract, "the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract" is inadmissible to explain or vary the terms of the contract, unless: (1) a term is ambiguous and parol evidence is offered to explain or clarify the ambiguity; or (2) a term was omitted from the contract because of fraud, accident, or mistake. Id. at 498, 854 A.2d 425.

As to the second category, the Yocca court emphasized a distinction in the application of the parol evidence rule between claims for "fraud in the inducement" (i.e., fraudulent inducement) and claims for "fraud in the execution":

Notably, while parol evidence may be introduced based on a party's claim that there was a fraud in the execution of the contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract.

Id. at 502 n. 26, 854 A.2d 425.

Applying the above analytical framework, Yocca ultimately found that the parties' final agreement was fully integrated, thereby rendering inadmissible the brochure. Id. at 499, 854 A.2d 425. In addition to containing an integration clause, the final agreement appeared to be the entire agreement between the parties because it contained the detailed terms of the contract:

[T]he [ ] Agreement detailed all of the terms and conditions of that sale, i.e., the precise number of seats to be sold to the named Licensee, the exact section in which those seats were located (including a visual depiction of that location), the total amounts due for each SBL, the dates those amounts were due, and all of the rights and duties associated with owning an SBL, including the Licensee's right to transfer the SBL.

Id. at 499, 854 A.2d 425.

After finding that there was no ambiguity in the parties' final agreement, the Pennsylvania Supreme Court "agree[d] with the trial court's conclusion that Appellees' breach of contract claims must be dismissed [because they are] are entirely based on allegations that the Steelers violated ... terms and conditions that are not, in fact, part of the parties' contract." Id. at 500-01, 854 A.2d 425.

Three years later, in 2007, the Pennsylvania Supreme Court made clear in Toy that the "fraud in the execution" exception to the parol evidence rule, discussed in Yocca, and previously discussed in other case law, was to be narrowly construed. See Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d 186 (2007). In Toy, the plaintiff alleged that an insurance salesman orally misrepresented to her which provisions would ultimately be included in an insurance policy. Id. at 31, 928 A.2d 186. The trial court concluded that any misrepresentations made by the salesman were barred by the parol evidence rule. Id. The Superior Court reversed, concluding that the plaintiff's allegations fell within the "fraud in the execution" exception to the parol evidence rule. Id. The Pennsylvania Supreme Court, emphasizing Yocca's distinction between fraud in the execution and fraud in the inducement, affirmed the Superior Court and held that the salesman's alleged misrepresentations were not barred by the parol evidence rule:

while the fraud exception to the parol evidence rule potentially applies in two scenarios-fraud in the inducement, where a party alleges that he was induced into entering the agreement through the other's fraud, and fraud in the execution, where a party alleges that he was mistaken as to the terms and the actual contents of the agreement he executed due to the other's fraud-this Court has determined that in Pennsylvania, only fraud in the execution, which is alleged in this case, but was not alleged in Yocca, is excepted from the parol evidence rule's operation.

Id. at 52, 928 A.2d 186.

The Third Circuit has affirmed that Pennsylvania state law recognizes a distinction between parol evidence admissibility for fraud in the execution and fraud in the inducement. Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1300 (3rd Cir. 1996). Specifically, the Third Circuit articulated that:

Fraud in the execution applies to situations where parties agree to include certain terms in an agreement, but such terms are not included. Thus, the defrauded party is mistaken as to the contents of the physical document that it is signing. Parol evidence is admissible in such a case only to show that certain provisions were supposed to be in the agreement but were omitted because of fraud, accident, or mistake. Fraud in the inducement, on the other hand, does not involve terms omitted from an agreement, but rather allegations of oral representations on which the other party relied in entering into the agreement but which are contrary to the express terms of the agreement.

Id.; see also 1726 Cherry Street Partnership by 1726 Cherry Street Corp. v. Bell Atlantic Properties, Inc., 439 Pa. Super. 141, 154, 653 A.2d 663 (1995) (noting that Pennsylvania state law regarding parol evidence admissibility differs from the widely accepted Restatement (Second) of Contracts, which may allow parol evidence to demonstrate fraud in the inducement).

Given the substantial Pennsylvania case law, as detailed above, this Court is well-guided in its application of the parol evidence rule. The law in Pennsylvania is clear: where a written contract is fully integrated and unambiguous, a party may not offer parol evidence in support of a claim that they were fraudulently induced to enter into that contract.

d) Integration

A fully integrated contract can be established through an integration clause "that states that the writing is meant to represent the parties' entire agreement," which constitutes "a clear sign that the writing is meant to be just that, and thereby expresses all the parties' negotiations, conversations, and agreements made prior to its execution." Toy, 593 Pa. at 49, 928 A.2d 186. However, a written contract need not contain an express integration clause in order to be fully integrated. A written contract without an express integration clause can be considered fully integrated if it appears to reflect the parties' complete agreement.

For example, in Gianni v. Russell & Co., 281 Pa. 320, 126 A. 791 (1924), the Court stated:

The writing must be the entire contract between the parties if parol evidence is to be excluded, and to determine whether it is or not the writing will be looked at, and if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing.

Id. at 323, 126 A. 791 (internal citation omitted).

This standard has been affirmed and developed in subsequent cases, see Yocca, 578 Pa. 479, 854 A.2d 425 ; Dunn v. Orloff, 420 Pa. 492, 218 A.2d 314 (1966) ; In re Boyd's Estate, 394 Pa. 225, 146 A.2d 816 (1958), and cited with approval by the Third Circuit. See, e.g., Mellon Bank Corp. v. First Union Real Estate Equity & Mortg. Investments, 951 F.2d 1399, 1405 (3d Cir. 1991).

For example, in Dunn, the Pennsylvania Supreme Court stated that "if a written agreement was intended by the parties to encompass the entire understanding between the parties, then evidence of a contrary nature, based upon an oral agreement at the time of the execution of the written agreement, was barred in the absence of fraud, accident or mistake." 420 Pa. at 495, 218 A.2d 314 (emphasis added). In other words, while a merger or integration clause will serve as a strong indication that the contract is fully integrated, the intention of the parties is also a key consideration in a court's analysis.

The Court finds that the Management Agreement at issue in the present case is fully integrated. Importantly, it contains a merger clause, stating, in no uncertain terms:

This Agreement contains all agreements of the parties with respect to matters covered herein, superseding any prior agreements, and may not be challenged other than by an agreement in writing signed by the parties hereto.

(Sodexo SOF, Ex. 1 § 10.11)

Sodexo contends that the above language is not a merger clause because nothing in the clause refers to prior representations, only to prior agreements. Therefore, Sodexo asserts, it is unlike the language previously found sufficient to constitute a merger clause. Further supporting its argument, Sodexo maintains, is another contract provision that explicitly references "representations" made by "each party":

(Id. § 9.1).

Section 9.1 does not alter the Court's analysis with respect to the question of full integration. The Supreme Court of Pennsylvania has clearly indicated that "an integration clause which states that a writing is meant to represent the parties' entire agreement is a clear sign that the writing is meant to be just that." Yocca, 578 Pa. at 498, 854 A.2d 425. Having agreed in the Management Agreement itself that "[t]his Agreement contains all agreements of the parties with respect to matters covered herein," Sodexo may not now seek to introduce evidence of prior oral representations made by Drexel.

However, this is not the end of the Court's inquiry, as there are other indications that the Management Agreement was intended by the parties to be a "complete agreement." The Management Agreement is, including exhibits, nearly one hundred pages single-spaced (excluding exhibits it is forty pages single-spaced). (See generally Sodexo SOF Ex. 1). It is so detailed that it even covers the subject matter of Drexel's alleged misrepresentations, stating that the "[p]arties agree that the University's growth is a critical factor in calculating the Investments afforded under the Agreement and it has been projected by SodexoMAGIC that this growth will realize an increase of 2% per year in the freshman class year over year." (Id. § 9.2). See Deutsch v. Wells Fargo Bank, N.A., No. 13-cv-3914, 2015 WL 3833226, at *4 (E.D. Pa. June 19, 2015) (courts consider the "length and detail of the contract" when determining whether a contract is integrated).

In fact, section 9.1, cited by Sodexo, is consistent with the Court's conclusion that the Management Agreement is integrated. The parties' obligations under section 9.1 are clear, requiring the parties to "renegotiate on a mutually agreeable basis" should there be a "change in the conditions or the inaccuracy or breach of, or the failure to fulfill, any [ ] representation by a party." Just as determining compliance with section 9.1 requires reference to outside "facts" (i.e., was a representation inaccurate?), so too does determining compliance with any other contractual provision. For example, determining whether a party breaches a confidentiality clause requires proof of an improper communication imparting sensitive information; paying only partial invoice sums requires reference to bank receipts; and breach of a contractual provision requiring passing grades for Health Department inspections requires reference to failed inspections. Although external evidence would be required in each of the above examples to prove the case, that fact does not preclude a contract containing such provisions from being legally integrated, nor does it mean the contract is ambiguous. See supra. A party can still substantiate its case with evidence where the above situations are presented (in the above examples, for breach of contract). However, where the parties intend for a contract to be fully integrated and to reflect their complete agreement, as occurred with the Management Agreement, "previous oral or