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REGENCY CATERING SERVS. v. CITY OF WILKES-BARRE

December 6, 1985

REGENCY CATERING SERVICES, INC., Plaintiff,
v.
The CITY OF WILKES-BARRE, The City of Wilkes-Barre Board of Health, and Thomas V. McGlaughlin, Mayor of the City of Wilkes-Barre, Defendants



The opinion of the court was delivered by: CONABOY

 CONABOY, District Judge.

 We consider here Defendants' motion to dismiss this suit for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). As a general rule, courts do not favor the summary disposition of cases on their merits. In fact, ". . . a complaint should not be dismissed . . . unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957). Moreover, in the face of such a motion all well-pleaded allegations are taken as true and all inferences drawn in favor of the non-moving party. See Jenkins v. McKeithen, 395 U.S. 411, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969); Hochman v. Board of Education of the City of Newark, 534 F.2d 1094 (3d Cir.1976).

 Factual Background

 Crediting, as we must, the Plaintiff's version of the facts which precipitated this lawsuit, we shall take as true the allegations in Plaintiff's brief in opposition to this motion. *fn1" These allegations state that Henry Radulski, a sanitarian employed by the City of Wilkes-Barre's Board of Health, visited Plaintiff's business premises, then a thriving enterprise, on eight occasions in the winter and early spring of 1985. These visits were to monitor Plaintiff's progress at eliminating a purported infestation of mice there. It is alleged that, despite Plaintiff's utter compliance with the recommendations made by Mr. Radulski and his agency, John O. Turner, the chairman of said agency, divulged the fact that a local food establishment was afflicted by a mouse problem at a public meeting on February 26, 1985. Although Mr. Turner did not mention the establishment by name, the interest of the local press was so piqued that much pressure was brought to bear on Wilkes-Barre City officials to identify which food establishment had this dreaded problem. These officials, including Mayor Thomas McGlaughlin, then allegedly bowed to media pressure and divulged Plaintiff's name by way of a formal press release.

 This constituted a reversal of a longstanding policy and custom of the Wilkes-Barre Board of Health that inspection reports based on the existence of unacceptable sanitary conditions would not be made public unless the establishment in question refused to take remedial measures as prescribed by the Board and was ultimately cited for health code violations -- things that did not occur in the instant case. The effect of the public dissemination of this information was nothing less than the virtual destruction of Plaintiff's business due to the cancellation of previously contracted for catering engagements.

 Legal Argument

 Plaintiff brings this claim pursuant to 42 U.S.C. § 1983, the federal statute which provides a means of redress to those parties whose federally protected rights are violated by persons acting under color of state law. Clearly, there are various concepts embodied in this statute which must be present in order to state a viable claim under it. Although there seems to be some wrangling over the issue whether a corporate entity is a "person" as contemplated by the drafters of 42 U.S.C. § 1983, we think it well-settled that a corporation can assert a claim thereunder. See Watchtower Bible and Tract Society, Inc. v. Los Angeles County, et al., 181 F.2d 739 (9th Cir.1950); also, Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071 (7th Cir.1978), certiorari denied, 439 U.S. 1121, 99 S. Ct. 1033, 59 L. Ed. 2d 82 (1979). Similarly, it seems clear that state political subdivisions -- including cities -- and their officers are acting "under color of state law" when they exhibit misconduct while carrying out the responsibilities of their offices. See Monell v. Department of Social Services of New York City, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

 More problematic is the issue whether, under the facts alleged here, a deprivation of some federally protected right has occurred. The Plaintiff claims that two of its federally protected rights have been violated. The first of these is Plaintiff's "right to confidentiality" as explained in Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir.1981), which is really an extension of the right to "zones of privacy" first discussed in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), and later amplified in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The second federally protected right which Plaintiff claims has been violated is its right to due process of law (notice and an opportunity to be heard) before being deprived of its property -- in this sense, presumably, its reputation in the community and resultant loss of future business -- as guaranteed by the 14th Amendment. *fn2" We shall consider these claims separately.

 Right to "Confidentiality"

 Fifth Circuit cases [ Fadjo v. Coon, supra, and Plante v. Gonzalez, 575 F.2d 1119 (1978)] cited by Plaintiff state that there is an ". . . individual interest in avoiding disclosure of personal matters . . ." and that this is "the right to confidentiality". See Fadjo at 1175 citing Plante, supra at 1132. Both Fadjo and Plante cite Nixon v. Administrator of General Services, 433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977), which discusses the existence of a privacy interest in avoiding disclosure of personal matters including personal finances to archivists engaged in screening presidential papers. We have underscored "personal" twice in the previous sentence because, it seems to this Court, that this right to confidentiality as it derives from the more well-known right of privacy discussed in a long line of Supreme Court decisions *fn3" is peculiarly a personal right. While we do not dispute Plaintiff's assertion that a corporation is a person for purposes of coming within the ambit of § 1983, we think that there is a very different set of criteria which must be referenced to determine if any corporation can come within the confidentiality aspect of the right to personal privacy discussed in Fadjo and Plante.

 Fadjo concerned revelations about "the most private details" of Mr. Fadjo's life. Plante concerned whether individual Florida legislators had to make full disclosure of personal finances pursuant to Florida's Sunshine Amendment. The various cases enumerated in footnote 3 below all concern intensely personal aspects of the private lives of individuals -- such things as whether to marry, procreate, use contraceptives, obtain an abortion, etc. This Court does not think that there is any case which has held that a corporation can claim relief under this very personal right to privacy/confidentiality. The Plaintiff herein certainly has not cited any. We think it would be inappropriate to extend this right of privacy which has, heretofore, been conferred only upon natural persons to a mere business entity. Thus, we find that Plaintiff corporation enjoyed no federally protected right to privacy and/or confidentiality. This issue, consequently, is no longer a feature of this case.

 Due Process Claim

 Paragraph 18 of the Plaintiff's ...


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