The opinion of the court was delivered by: CONABOY
Richard P. Conaboy, United States District Judge.
We consider here the motion of Defendant Shippensburg University (hereinafter Shippensburg) to dismiss this complaint as to it for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. This motion was briefed in timely fashion as was the opposing brief of Plaintiff Robert M. Wynne, formerly a tenured faculty member at Shippensburg. Thus, this motion is now ripe for decision. For the reasons which follow, we shall grant the motion.
This is essentially a wrongful termination action brought under the guise of 42 U.S.C. § 1983 -- the federal statute which provides a remedy for those persons whose federally protected rights are violated by persons acting under color of state law -- 28 U.S.C. § 1343 and the 14th Amendment to the United States Constitution.
Plaintiff alleges that he had taught at Shippensburg from August 24, 1970 until what he claims was his sudden termination on August 17, 1984. He further alleges that he had acquired tenured status in May of 1973 and, thus, acquired a property interest in his position which cannot be extinguished without due process of law (i.e. adequate notice of the reason for his dismissal and an opportunity to be heard in opposition to said dismissal). Finally, he alleges that a collective bargaining agreement was in force between the Commonwealth of Pennsylvania and the Association of Pennsylvania State College and University Faculty which provided that tenured faculty members could not be terminated without just cause.
Shippensburg does acknowledge the fact that Plaintiff Wynne enjoyed tenured status but denies that his termination was sudden or that he had no opportunity to oppose it. Shippensburg's position was stated concisely as:
. . . Plaintiff had been continually advised of his position being in jeopardy, and plaintiff had been evaluated negatively repeatedly, with respect to his teaching performance. See Docket Item 7, paragraph 15.
. . . Plaintiff was also given several opportunities to present reasons, either in person or in writing, why the termination should not take place. Id., paragraph 26.
Defendant Shippensburg's motion to dismiss this case is based on two premises: (a) that Shippensburg is a state agency and, thus, is not susceptible to suit under § 1983 because it is not a "person" within the meaning of that statute; or (b) that the 11th Amendment to the United States Constitution, as delineated in Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890), and its progeny, precludes lawsuits against a state or its agencies by its own citizens.
I. May Shippensburg be characterized as a "person" within the meaning of 42 U.S.C. § 1983?
Shippensburg's first defense is predicated on the fact that it would answer the question above in the negative. Rochester v. White, 503 F.2d 263 (3d Cir. 1984), is cited for the proposition that ". . . federal courts have long recognized that neither the Commonwealth nor its agencies are "persons" within the meaning of § 1983".
This begs the questions, however, of whether Shippensburg University is a state agency.
Plaintiff Wynne argues that the term "person" ". . . extends to such entities as corporations and municipalities . . ." and ". . . Universities are among the entities which have been held to be 'persons'. (citations omitted)".
It is, therefore, obvious that, to answer this question of whether Shippensburg is a "person" or "state actor" under § 1983, we must first determine whether Shippensburg may be appropriately characterized as a state agency. This leads directly to Defendant's second argument.
II. May Shippensburg be characterized as a state agency which is immune to suit in federal court due to immunity conferred by the 11th Amendment?
This question is to be resolved under a very different standard from that used in deciding whether an entity is a "person" or "state actor" under § 1983.
The parties agree that the test to be utilized in determining whether an agency is an "arm of the state" or state agency for 11th Amendment purposes was first announced in Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247 (3d Cir. 1969), certiorari denied, 397 U.S. 948, 25 L. Ed. 2d 128, 90 S. Ct. 967 (1970). We note that the Urbano test has been utilized recently to resolve a similar dispute by Judge Caldwell in Braderman v. Pennsylvania Housing Finance Agency, 598 F. Supp. 834, 836 (M.D. Pa. 1984). We think it plain that the Urbano test is the appropriate standard to apply here.
The briefs of the parties frame an interesting question as to whether the current Pennsylvania State Universities -- Shippensburg included -- remain state agencies in the aftermath of the enactment of 24 P.S. § 20-2001-A et seq., the statute which has transformed the former state colleges into state universities. Plaintiff admits that it was clear prior to the passage of said statute that the state colleges were state agencies. Plaintiff admits, too, that Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53 (3d Cir. 1976), cert. denied 429 U.S. 979, 50 L. Ed. 2d 588, 97 S. Ct. 490, a case relied upon by Defendant Shippensburg, stood for the very proposition that the state colleges of Pennsylvania were agencies of the state. Plaintiff alleges, however, that the passage of 24 P.S. § 20-2001-A et seq. has robbed Skehan, supra, of its vitality and that "the 1982 legislative enactment which transformed ...