The Court applied the Moose Lodge analysis in Jackson v. Metropolitan Edison Company, supra, a suit against a privately owned and operated utility corporation which held a certificate of public convenience issued by the Pennsylvania Utilities Commission. Plaintiff sought to recover damages under the Civil Rights Act for the utility company's termination of her electric service allegedly without affording her notice, a hearing, or an opportunity to pay amounts owed. Affirming the dismissal of the complaint for lack of "state action," the Supreme Court, again speaking through Mr. Justice Rehnquist, held where a customer showed no more than that the utility was heavily regulated with a partial monopoly and that it terminated service in a manner which the utilities commission found permissible under state law, Pennsylvania was insufficiently connected with the challenged termination to make the utility's conduct attributable to the state for Fourteenth Amendment purposes. 419 U.S. at 351-53, 95 S. Ct. at 457.
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,
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,
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),
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 Hahnemann,
and although it takes no direct part in the selection of students admitted to Hahnemann Medical College, Pennsylvania has reserved the right to approve a medical certificate required of all accepted applicants.
Quite clearly, defendant's being chartered by the Commonwealth is of no significance. The granting of a corporate charter is a ministerial governmental function, and does not involve the state to any appreciable degree in either the management or the promotion of a chartered corporation. Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 635-39, 4 L. Ed. 629 (1819); Greenya v. George Washington University, 167 U.S. App. D.C. 379, 512 F.2d 556, 560 (1975); Blackburn v. Fisk University, 443 F.2d 121 (6th Cir. 1971).
Moreover, with the possible exception of racial discrimination by recipients of government funds, mere financial support for particular projects represents insufficient state involvement to trigger Constitutional guarantees for those dealing with the recipient. Greenya v. George Washington University, supra, 512 F.2d at 561.
Similarly, contacts with a municipality -- here defendant's arrangement with the City of Philadelphia with respect to the provision of services to PGH -- are insufficient in and of themselves to constitute state action, cf. Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d Cir. 1973), although they may be considered in the overall context of a relationship between a private party and the state, see, e.g., Burton v. Wilmington Parking Authority, supra; Rackin v. University of Pennsylvania, 386 F. Supp. 992 (E.D. Pa. 1974). Finally, the Commonwealth's reservation of the right to approve the medical certificates of matriculating students is merely a ministerial exercise of its police power rather than any extensive participation or involvement in the selection of students, compare Isaacs v. Board of Trustees of Temple University, 385 F. Supp. 473, 488 (E.D. Pa. 1974).
Although no single factor just recited can be said to constitute state action, it is necessary to determine whether in combination they paint a picture of overall involvement by the state in Hahnemann's activities or of a "symbiotic relationship" wherein defendant and the state can be said to be "partners." See Burton v. Wilmington Parking Authority, supra, 365 U.S. at 725, 81 S. Ct. at 862; Braden v. University of Pittsburgh, 477 F.2d 1 (3d Cir. 1973); Rackin v. University of Pennsylvania, supra.
In Braden v. University of Pittsburgh, supra, the Court of Appeals for this Circuit vacated the dismissal of an action brought by a female assistant against the university and chancellor for alleged discrimination. Citing certain "notable" deficiencies in the record, the appellate court remanded the case to the district court for the compilation of a comprehensive record setting forth in detail the relationship between the university and the Commonwealth of Pennsylvania. 477 F.2d at 5.
In determining whether the symbiotic relationship spoken of in Burton, Braden, and other cases exists here, I am guided by two cases decided in this District in 1974.
In Isaacs v. Board of Trustees of Temple University, supra, two former members of the faculty of Temple University who contended that they had been discharged for voicing their opinions concerning the school's publication policies, sought redress in a civil rights action. In a most comprehensive and scholarly opinion, Judge Higginbotham concluded that by reason of Temple's statutory incorporation into the Commonwealth's system of higher education, a substantial representation of the state on the university's board of trustees, and the massive financial subsidies bestowed upon the school to enable it to provide relatively inexpensive higher education to Pennsylvania residents, all of Temple's actions, including its termination of the plaintiffs' employment, merited classification under the rubric of state action. Id. at 487-89. Isaacs is plainly distinguishable from the case at bar. Hahnemann is by no means as intimately entwined in the Pennsylvania system of higher education as Temple, nor is it intended to be. No comparable statute incorporates Hahnemann into Pennsylvania's educational scheme, nor are a portion of its trustees appointed through the Commonwealth's elected officials. The state does not provide a disproportionate share of Hahnemann's funds as compared with similar private institutions and enjoys no right of review over the school's budget. In short, none of the criteria deemed crucial in Isaacs for qualifying Temple's conduct as state action are present here.
A somewhat closer, albeit distinguishable, case is Rackin v. University of Pennsylvania, 386 F. Supp. 992 (E.D. Pa. 1974), decided a month after Isaacs. There Judge Weiner found a number of contacts between the Commonwealth and the University of Pennsylvania, including tax exemptions, scholarships and loans, government support of research projects, ties to the city, and the construction, leasing and financing of buildings. Conceding that individually each factor might be insufficient to establish state action, Judge Weiner nevertheless concluded that in combination such contacts were sufficient to demonstrate that the Commonwealth had so far insinuated itself into a position of interdependence with the university as to make it a joint partner in any alleged sexual discrimination in employment. Id. at 1004-05.
The contacts dealt with in Rackin, although present in the case at bar, are far less substantial than those between the Commonwealth and the University of Pennsylvania. For example, in 1973, the state appropriated $14,368,000. for the university
whereas Hahnemann by comparison received only $2,707,000.00
in Commonwealth appropriations. Similarly, the General State Authority (GSA)
and the Pennsylvania Higher Educational Facilities Authority (PHEFA) constructed, financed, or leased at least fourteen buildings of the University of Pennsylvania, 386 F. Supp. at 998-99, while those agencies were similarly involved in only five of Hahnemann's buildings.
Much more significantly, in the instant case there is no evidence that the Commonwealth maintains a "stranglehold" on Hahnemann, with a corresponding potentially significant input into its policies, both of which Judge Weiner found to be the case with respect to the University of Pennsylvania. 386 F. Supp. at 1005.
For these reasons, then, I am persuaded that even in combination, the contacts between the state and Hahnemann are insufficient to constitute the kind of symbiotic relationship with which the Burton and Braden courts were concerned. Accordingly, I conclude that Hahnemann's nonreappointment of Dr. Sament cannot be deemed to be state action within the meaning of the Fourteenth Amendment or the civil rights statute.
III. DUE PROCESS CLAIM
Having concluded that Dr. Sament's non-reappointment cannot be characterized as state action, I could quite logically terminate this opinion at this juncture. In the interest of expediting the disposition of this case, however, should a reviewing court disagree with my conclusion regarding state action, I shall now proceed to consider the second prong of plaintiff's claim, viz., that his non-retention constituted a violation of due process. Proceeding on two distinct theories, Dr. Sament posits first that he had a property interest in his position at Hahnemann entitling him to due process, a right not accorded him by virtue of defendant's failure to state adequate reasons for his nonreappointment or to afford him an opportunity to be heard. Alternatively, plaintiff contends that Hahnemann's failure to comply with its by-law provisions concerning timely notification was in and of itself a Constitutional violation.
A. Property Interest and the Process which Is Due