be an "instrumentality" of the Commonwealth. Id. at 102. To achieve this "linkage," the statute provide that one-third of the University's trustees are to be selected by the Commonwealth; that the Commonwealth will make annual appropriations to the University; that the State may set tuition schedules; and that the University must file annual reports of all instructional, administrative, and financial activities with the Governor. Id.
Upon consideration of the facts submitted, the kind of symbiotic relationship described in Krynicky is plainly not present in this case. Courts are reluctant to recognize a symbiotic relationship absent a high level of State involvement. See Boyle v. Governor's Veterans Outreach & Assistance Center, 925 F.2d 71 (3d. Cir. 1991)(The Governor's supervision of the distribution of federal funds to an unincorporated organization does not rise to the level of state involvement required by Burton); Imperiale v. Hahnemann Univ., 776 F.Supp. 189 (E.D.Pa. 1991), aff'd, 966 F.2d 125 (3d. Cir. 1992)(a "state-aided" but not "state-related" institution does not enjoy a symbiotic relationship with the Commonwealth). ETC is an independent contractor whose services can be discontinued by IU 29 by simply not renewing its contract. ETC is not created by state statute, in not part of the public school system of the Commonwealth, and is not an instrumentality of the Commonwealth. The "nuts and bolts" of ETC or its operation are not established by law. There is not even evidence of record to indicate that ETC enjoys a contractual relationship with the Commonwealth. Because no symbiotic relationship exists between ETC and either IU 29 or the Commonwealth, ETC's allegedly discriminatory conduct is not attributable to the State.
B. Plaintiffs' Section 1985 Claim
In Count II, plaintiffs' allege that in contracting to provided auxiliary services without complying with the salaries and perquisites set by the School Code, defendants conspired to interfere with plaintiffs' civil rights in violation of 42 U.S.C. § 1985(3). Section 1985(3), unlike § 1983, can provide a cause of action against purely private conspiracies; thus, state action is not an essential element of all § 1985(3) claims. However, when the alleged conspiracy is aimed at a right that is by definition a right only to be protected from State interference, such as First and Fourteenth Amendment rights, the plaintiff must prove State involvement in the interference with that right. United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 833, 103 S. Ct. 3352, 3358, 77 L. Ed. 2d 1049 (1983). Since plaintiffs have failed to establish state action, Count II must for this reason alone be dismissed. Moreover, as defendants correctly contend, Count II must also be dismissed because plaintiffs failed to allege or demonstrate a sufficient "class-based discrimination."
In contrast to § 1983, which provides a cause of action for the violation of any constitutional right, § 1985 (3) provides a cause of action only when the plaintiff's rights to equal protection, privileges, or immunities are violated. Jennings v. Shuman, 567 F.2d 1213, 1221 (3d Cir. 1977). The Supreme Court has held that this "means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971); see also Burt v. Ferrese, 871 F.2d 14, 17 (3d Cir. 1989); Pratt v. Thornburgh, 807 F.2d 355, 357 (3d Cir. 1986), cert. denied, 484 U.S. 839, 108 S. Ct. 125, 98 L. Ed. 2d 83 (1987).
What constitutes a class for § 1985(3) purposes has not been fully decided. In this circuit, however, it is clear that § 1985(3) protects only against discrimination based upon "immutable characteristics," such as race or gender, for which the members of a class have no responsibility. Carchman v. Korman Corp., 594 F.2d 354, 356 (3d Cir.), cert. denied, 444 U.S. 898, 100 S. Ct. 205, 62 L. Ed. 2d 133 (1979) (quoting Novotny v. Great Am. Fed. Sav. & Loan Assoc., 584 F.2d 1235, 1243 (3d Cir.) (en banc), vacated on other grounds, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979)). In keeping with Supreme Court precedent, the court limited § 1985(3) protection to victims of "historically pervasive discrimination." Id. Other courts have, in limited circumstances, included discrimination based on national origin or religion in the definition of class-based animus. Gomez v. City of West Chicago, Ill., 506 F.Supp. 1241, 1245 (N.D. Ill. 1981); Arnold v. Tiffany, 359 F. Supp. 1034, 1036 (C.D. Cal.), aff'd, 487 F.2d 216 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S. Ct. 1578, 39 L. Ed. 2d 881 (1974). In contrast, § 1985(3) has "never been held to apply to private, economically motivated conspiracies." C & K Coal Co. v. United Mine Workers of Am., 704 F.2d 690, 700 (3d Cir. 1983); see also United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 837, 103 S. Ct. 3352, 3361, 77 L. Ed. 2d 1049 (1983).
Although plaintiffs teach at predominantly parochial schools, nowhere do they contend discrimination based on their religion or religious beliefs. Rather, plaintiffs claim, without more, that they are discriminated against because they teach in parochial schools. Parochial school teachers are not a protected group within the ambit of § 1985(3) and are not victims of "historically pervasive discrimination." Carchman, 594 F.2d at 356; see Pitts v. Board of Educ. of U.S.D. 305, Salina, Kansas, 869 F.2d 555, 557 (10th Cir. 1989). Therefore, plaintiffs' § 1985(3) claim must also be dismissed since plaintiffs failed to allege or demonstrate a sufficient "class-based discrimination."
C. The Breach of Contract Claim
Plaintiffs also allege in Count III that the provisions of the School Code are implied by law into their employment contracts with ETC, and that since ETC allegedly failed to compensate them in accordance with the School Code, ETC has breached those employment contracts. However, since all the federal claims have been dismissed from this case, there is no need to address the dismissal of the breach of contract claim on the merits. Under these circumstances, the decision to entertain or dismiss the pendent state law claims is within the district court's discretion. Courts should ordinarily decline to exercise supplemental jurisdiction over state law claims when the federal claims are dismissed. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 1139, 16 L. Ed. 2d 218 (1966); Weaver v. Marine Bank, 683 F.2d 744, 746 (3d Cir. 1982); 28 U.S.C. § 1367(c)(3). Therefore, we decline to exercise supplemental jurisdiction over plaintiffs' breach of contract claim. We note that the parties may pursue this matter in state court. 28 U.S.C. § 1367(d); 42 Pa.Stat.Ann. § 5103 (b)(2) (Purdon 1992 Supp.).
Accordingly, defendants' motions for summary judgment on plaintiffs' §§ 1983 and 1985(3) claims in Counts I and II is granted. Defendants' motion for summary judgment on plaintiffs' breach of contract claim in Count III is denied without prejudice.
An appropriate order follows.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 803 F. Supp. 1055.
AND NOW, this 22nd day of September, 1992, upon consideration of the parties respective Motions For Summary Judgment and Defendant ETC's Motion for Rule 11 Sanctions, it is hereby ORDERED that:
1. Defendants' Motions for Summary Judgment filed on March 9th and March 16th, 1992 are GRANTED as to Counts I and II and DENIED as to Count III;
2. Plaintiffs' Motion for Partial Summary Judgment filed on April 6th, 1992 is DENIED;
3. Defendant ETC's Motion for Rule 11 Sanctions is DENIED;
4. Counts I and II of Plaintiffs' complaint are hereby DISMISSED WITH PREJUDICE; and
5. Count III of Plaintiffs' complaint is hereby DISMISSED WITHOUT PREJUDICE to Plaintiffs' right to pursue this matter in State court. This case is CLOSED.
BY THE COURT,
Franklin S. Van Antwerpen, J.