for work at a facility of General Telephone, he or she is required to fill out a "Contract Employee Information Sheet."
In October 1979 Spencer was assigned by GTE Automatic to provide services at the offices of the defendant in York, Pennsylvania. The plaintiff was requested to fill out the "Contract Employee Information Sheet." The plaintiff refused, alleging that the use of the sheet invaded his rights to privacy and his constitutional rights. The plaintiff was allowed to work even though he did not complete the form. After a few days, Spencer was informed by a representative of General Telephone that he would have to complete the form or he could not continue to work.
Before the plaintiff was to continue work at York, he was reassigned to a project in West Virginia. Upon completion of the West Virginia job, the plaintiff was reassigned to Florida. Spencer then informed GTE Automatic that he would return to York and sign the form rather than go to Florida.
On or about January 2, 1980, the plaintiff registered a protest with the Commissioner, Pennsylvania Public Utility Commission. The Commissioner responded that the Public Utility Commission "does not have jurisdiction over the management problem."
Spencer reported to work at York on January 7, 1980 and signed the Information Sheet, but with a written protest. Later that day he was informed that the form with a written protest was unacceptable. On January 8 a compromise was arrived at whereby Spencer would fill out the form without written notation, but he could register a verbal protest. This agreement was utilized, so that plaintiff did not lose any days at work or any pay resulting from the disagreement over the information sheet.
On March 26, 1980, the plaintiff filed a civil complaint alleging two causes of action. The defendant moved for dismissal under Rules 12(b) and 12(h) (3) of the Federal Rules of Civil Procedure or alternatively for a summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
Count I of the complaint seeks a "declaration of rights" and an injunction prohibiting the defendant from the continued use of the information sheet on the basis that the defendant has violated the plaintiff's constitutional rights of due process, equal protection and privacy as well as the provisions of Title 42 U.S.C. § 1983. Plaintiff alleges that defendant's status as a public utility constitutes an "exercise of government power" so as to require the application of constitutional safeguards. For the plaintiff to prevail on this count, he must establish that the activity of General Telephone constitutes state action. Shelley v. Kraemer, 334 U.S. 1, 13, 92 L. Ed. 1161, 68 S. Ct. 836 (1948); United States v. Price, 383 U.S. 787, 794 n.7, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966); Civil Rights Cases, 109 U.S. 3, 11, 27 L. Ed. 835, 3 S. Ct. 18 (1883).
The United States Supreme Court decided on June 25, 1982 the case of Rendell-Baker v. Kohn, 457 U.S. 830, 102 S. Ct. 2764, 73 L. Ed. 2d 418, 50 U.S.L.W. 4825 (1982). The Rendell-Baker case involved a private school which received funds from state and local governments and was regulated by the state. Id. at 4826. The issue was whether the discharge of certain employees constituted actions which can be attributed to the state. The Court laid out four factors to be considered in deciding whether the acts of an enterprise were acts of the state.
First, the Court concluded that the receipt of public funds was not sufficient to make the school's decisions acts of the state. Id. at 4828. See Blum v. Yaretsky, 457 U.S. 991, 102 S. Ct. 2777, 73 L. Ed. 2d 534, 50 U.S.L.W. 4859 (1982) (decided the same day as Rendell-Baker). The analogy drawn in regards to the receipt of public funds was to that of private corporations whose business depends on public contracts. 50 U.S.L.W. at 4828.
This factor is of little consequence in the instant case.
Next the Court considered the extensive regulation of the school by the state. Id. at 50 U.S.L.W. at 4828. The language of Chief Justice Burger in analyzing the issue of state regulation is applicable to the present case.
Here the decisions to discharge the petitioners were not compelled or even influenced by any state regulation. Indeed, in contrast to the extensive regulation of the school generally, the various regulators showed relatively little interest in the school's personnel matters. The most intrusive personnel regulation promulgated by the various government agencies was the requirement that the Committee on Criminal Justice had the power to approve persons hired as vocational counselors. Such a regulation is not sufficient to make a decision to discharge, made by private management, state action.
Id. at 4828-29.
The Court in Blum v. Yaretsky defined the test as "The complaining party must . . . show that 'there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.'" 50 U.S.L.W. at 4862 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974)). The plaintiff, Spencer, indicates that he registered a protest with the Pennsylvania Public Utility Commission and was informed that the Commission "does not have jurisdiction over the management problem." Such a response is hardly supportive of an argument that a close nexus exist between the regulatory authority and the utility on the issue of employment regulation. Plaintiff offers no facts to suggest a nexus exists.
The third factor is "whether the function performed has been 'traditionally the exclusive prerogative of the State.'" 50 U.S.L.W. at 4829 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974) (emphasis in original)). The providing of telephone services can hardly be considered within the "exclusive prerogative of the State."
The last factor is the symbiotic relationship analysis which arose out of Burton v. Wilmington Parking Authority, 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961). The Court in Rendell-Baker said, "Here the school's fiscal relationship with the State is not different from that of many contractors performing services for the government. No symbiotic relationship such as existed in Burton exists here." 50 U.S.L.W. at 4829. The present case also does not significantly differ from other state contractors. No symbiotic relationship exists.
In light of the above analysis, Count I of the complaint which is based on the United States Constitution and Title 42 U.S.C. § 1983 will be determined under Rule 56 of the Federal Rules of Civil Procedure. The plaintiff has failed to show the requisite state action to support a claim under the equal protection or due process clause of the fourteenth amendment, the right to privacy guaranteed to him by the first, fourth and fifth amendments as made applicable to the states by the fourteenth amendment, or a claim under the provisions of Title 42 U.S.C. § 1983 and, therefore, summary judgment will be granted in favor of the defendant, General Telephone Company of Pennsylvania.
The plaintiff alleges in Count II that defendant has violated plaintiff's common law rights and acted in a tortious manner by breaching and interfering with his right of privacy and intruding upon his employment relationship with GTE. The relief sought by Count II is identical to that sought by Count I.
The plaintiff argues that because of General Telephone's use of the information sheet, which allegedly violates his right of privacy, he must either submit to the intrusion by signing the sheet or refuse to sign and run the risk of GTE Automatic selecting more remote assignments for him or terminating his employment. The plaintiff in his motion for summary judgment argues that the undisputed facts support two distinct torts. First, the use of the information sheet is an invasion of his common law right to privacy. And second, that there is an intentional interference with his employment contract with GTE Automatic.
The Commonwealth of Pennsylvania has adopted § 652A(2) of the Restatement (Second) of Torts which defines the general categories of the tort of invasion of privacy. Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133 (1974).
Section 652A(2) of the Restatement of Torts (Second) addresses the tort as follows:
(2) The right of privacy is invaded by