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February 10, 1976


The opinion of the court was delivered by: DITTER

 The questions presented by the instant motion for summary judgment are whether the non-reappointment of a physician to the staff of a private, nonprofit medical college and hospital constituted state action for purposes of triggering Fourteenth Amendment guarantees, and if so, whether the procedure by which his employment was terminated was offensive to due process.


 Plaintiff, Sidney Sament, M.D., was initially employed by the defendant Hahnemann Medical College and Hospital of Philadelphia as an assistant professor of medicine on July 1, 1970. His term of employment, as was the case for all faculty appointments, was for a period of one academic year, i.e. from July 1 to the following June 30. Plaintiff's duties as a faculty member included teaching both at Hahnemann and at Philadelphia General Hospital. Additionally, as an assistant professor and a member of the active staff, he had full admitting privileges at Hahnemann.

 Plaintiff subsequently was reappointed to defendant's faculty for the 1971-72 and 1972-73 academic years, on each occasion signing a one-year contract. ( *fn1" ) On September 26, 1972, Wilbur Oaks, M.D., then acting chairman of defendant's department of medicine, wrote plaintiff a letter advising him that because of administrative and fiscal reorganization, Dr. Sament would not be reappointed to the Hahnemann faculty for the following academic year, and that his employment would cease as of June 30, 1973. Dr. Oaks again wrote to plaintiff on March 22, 1973, and informed him that the Faculty Affairs Committee had reviewed and approved his non-reappointment. On April 25, 1973, Dr. Joseph R. DiPalma, a vice-president and dean at Hahnemann, advised plaintiff in writing that the Academic Affairs Council also had approved his non-reappointment. Finally, defendant's board of trustees met on May 30, 1973, and approved the non-reappointment of four faculty members, one of whom was Dr. Sament.

 On June 19, 1973, invoking the jurisdiction of this court pursuant to the Civil Rights Act of 1871, 42 U.S.C. ยง 1983, plaintiff instituted the present action seeking injunctive relief and damages. Specifically, plaintiff alleged that his non-retention, without a hearing or adequate reasons, constituted state action within the meaning of the Fourteenth Amendment violative of his right to procedural due process. Defendants thereafter moved, pursuant to Rule 12 of the Federal Rules of Civil Procedure, to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. Defendants' basic arguments were that (1) the non-reappointment of Dr. Sament violated no right guaranteed by the Fourteenth Amendment, and that they amply accorded him any rights of due process to which he was entitled; and (2) as a private, non-profit corporation, Hahnemann's conduct failed to satisfy the requisites for state action.

 At a hearing before me on July 6, 1973, plaintiff sought preliminary injunctive relief in the form of an order reinstating him to defendant's faculty. At the conclusion of that proceeding, at which plaintiff was the sole witness, I denied both his request for a temporary restraining order and the defendants' motion to dismiss (N.T. July 6, 1973, at 67). Following the July, 1973, hearing, both sides pursued various avenues of discovery.

 Again asserting fundamentally the same propositions espoused in their motion to dismiss, defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. While neither asserting the existence of any genuine issue of material fact, which would automatically render summary judgment inappropriate in this action, nor moving for summary judgment himself, plaintiff maintains that his nonretention was state action violative of due process. I find no disputed factually material issues. Accordingly, I shall resolve the instant motion solely on the questions of law.


 A. Some General Considerations

 "While the principle that private action is immune from the restrictions of the Fourteenth Amendment is well established and easily stated, the question whether particular conduct is 'private,' on the one hand, or 'state action,' on the other, frequently admits of no easy answer." Jackson v. Metropolitan Edison Company, 419 U.S. 345, 349-50, 95 S. Ct. 449, 453, 42 L. Ed. 2d 477 (1974); see Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S. Ct. 1965, 1971, 32 L. Ed. 2d 627 (1972); Burton v. Wilmington Parking Authority, 365 U.S. 715, 723, 81 S. Ct. 856, 860, 6 L. Ed. 2d 45 (1961). Nonetheless, as Judge Aldisert recently observed, decisions in which the Supreme Court has "pierced the seemingly impenetrable veil of private, individual conduct to find state action" lend themselves to ready categorization into three broad groupings: (1) where state courts enforced an agreement affecting private parties; ( *fn2" ) (2) where the state significantly involved itself with the private party; and (3) where there was private performance of a government function. ( *fn3" ) Magill v. Avonworth Baseball Conference, 516 F.2d 1328, 1331 (3d Cir. 1975); see 19 Wayne L. Rev. 1309, 1310-12 (1973).

 Plainly the case sub judice must fit, if at all, within the second category. The criteria for ascertaining whether a state has "significantly" involved itself in the conduct of a private party has itself undergone an evolutionary change in recent years. Older cases held that the state's involvement in the challenged activity need not

. . . be either exclusive or direct. In a variety of situations the Court has found state action of a nature sufficient to create rights under the Equal Protection Clause even though the participation of the State was peripheral, or its action was only one of several co-operative forces leading to the constitutional violation.

 United States v. Guest, 383 U.S. 745, 755, 86 S. Ct. 1170, 1177, 16 L. Ed. 2d 239 (1966). *fn4" Since the advent of Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972), a more rigorous standard has governed cases in which state action is alleged. In Moose Lodge the allegation of state action was grounded upon the state liquor control board's licensing of a private social club, and the alleged Constitutional violation arose from that club's refusal to serve blacks. Writing for the Court, Mr. Justice Rehnquist held that "state action" requires that the state must "significantly involves itself with invidious discriminations." Id. at 173, 92 S. Ct. at 1971. Significant involvement, he went on to explain, exists only where a state and private party enter into a "symbiotic relationship" conferring mutual benefits, in which the parties are sufficiently close that the state can be said "in a realistic sense" to be the "partner" of the private party. *fn5" Id. at 175-77, 92 S. Ct. at 1972-73. Applying this test to the facts of Moose Lodge, the Court concluded that the regulatory process embodied in the form of the liquor control board failed to generate or create a "symbiotic relationship" or to significantly involve the state with the club's invidious discrimination. *fn6" Id. at 177, 92 S. Ct. at 1973.

 B. Hahnemann and State Action

 That contacts exist between Hahnemann Medical College and Hospital, Pennsylvania, and the federal government is indisputable. Hahnemann was chartered by the Commonwealth. From 1970 to 1973, defendant participated in the Hill-Burton program, *fn7" and received federal funds allocated and administered for rebuilding and enlargement projects. During the same period of time, Hahnemann also provided services under the Federal Health Insurance for the Aged program, *fn8" and was bound by the applicable regulations of the Social Security Administration. From 1967 to 1973, defendant contracted with the City of Philadelphia to provide medical care and services to patients at Philadelphia General Hospital (PGH), *fn9" under which arrangement Hahnemann appointed members of its faculty to the staff of PGH, and in return, the City reimbursed defendant dollar for dollar for its services and appointment. Hahnemann also has been the recipient of monies from the City and the Commonwealth, both of which have required an accounting for the use of such funds. Not surprisingly, funding by the federal government and the Commonwealth plays more than a nominal role in determining the size and composition of each class matriculating at ...

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