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September 22, 1992


The opinion of the court was delivered by: BY THE COURT; FRANKLIN S. VAN ANTWERPEN



 On January 24, 1991, plaintiffs, five *fn1" privately employed educators, filed this action alleging civil rights violations (Counts I and II) and pendent state law claim for breach of contract (Count III). Presently before the Court are defendants' motion for summary judgment *fn2" and plaintiffs' motion for partial summary judgment.

 Plaintiffs are two current and two former employees of defendant Education and Training Consultants of Pennsylvania, Inc. ("ETC"). ETC is a private corporation and independent contractor which provides certain auxiliary services, such as guidance and remedial education, to nonpublic school students. These services are provided pursuant to contracts with defendant Schuykill Intermediate Unit No. 29 ("IU 29"). IU 29 is a part of the Pennsylvania public school system pursuant to the Public School Code of 1949 ("School Code"), 24 Pa.Stat.Ann. § 1-101, et seq. (Purdon 1992 Supp.) IU 29 administers and oversees programs which provide various specialized educational services to both public and nonpublic school students within its area of operation. 24 Pa.Stat.Ann. §§ 9-951 - 9-974 (Purdon 1992 Supp.).

 Defendants Celidonio and Donohue are private individuals who are shareholders and officers of ETC. Defendant Alspach is the current executive director of IU 29.


 The court shall render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S. Ct. at 2510. All inferences must be drawn and all doubts resolved in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985).

 On motion for summary judgment, the moving party bears the initial burden of identifying for the court those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Id. at 321 n.3, 106 S. Ct. at 2552 n.3 (quoting Fed. R. Civ. P. 56(e)); see First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49, 106 S. Ct. at 2510-11.


 There is no dispute between the parties as to the following facts. The plaintiffs are present or former employees of defendant ETC pursuant to written contracts with ETC. *fn3" Defendant ETC is a private corporation. Defendants Celidonio and Donohue are private individuals and are not officers, agents or employees of the Commonwealth or any of its political subdivisions (Affidavit of Celidonio, P 8; Affidavit of Donohue, P 8). Neither Celidonio nor Donohue are officers, agents, or employees of IU 29. (Affidavit of Celidonio, P 9; Affidavit of Donohue, P 9)

 During the course of employment with ETC, the plaintiffs received their salary, W-2 wage statements and health insurance benefits from ETC. Plaintiffs do not have written contracts with IU 29, do not receive a salary, W-2 wage statements or health insurance from IU 29. At all times during their employment, plaintiffs received all of the benefits set forth in their written contracts with ETC.

 IU 29 is one of 29 intermediate units established by the Commonwealth. 24 Pa.Stat.Ann. § 9-952 (Purdon 1992 Supp.). Intermediate units were established as successors to the county boards of school directors and for the purpose of providing auxiliary services to public and nonpublic schools on a regional basis. See Arnold v. BLaST Intermediate Unit 17, 843 F.2d 122, 124-25 (3d Cir. 1988); Commonwealth ex. rel Waychoff v. Tekavec, 456 Pa. 521, 319 A.2d 1 (1974), 24 Pa.Stat.Ann. §§ 9-956, 9-972.1 (Purdon 1992 Supp.). Each intermediate unit is governed by a thirteen member board of directors composed of members of the board of directors of the school districts assigned to that intermediate unit. 24 Pa.Stat.Ann. § 9-960 (Purdon 1992 Supp.). The staff of each intermediate unit consists of an executive director and "such assistant executive directors, program specialists, and other personnel as the intermediate unit board of directors deems necessary to employ." 24 Pa.Stat.Ann. § 9-963(a) (Purdon 1992 Supp.).

 The powers and duties of defendant Alspach as executive director are set by 24 Pa.Stat.Ann. § 9-965 (Purdon 1992 Supp.). These powers and duties include administering the intermediate unit program of services, appointing professional staff subject to the approval of the intermediate unit board of directors, preparing the budget for adoption by the intermediate unit board of directors, directing expenditures, appointing advisory groups, providing information and reports to the superintendent of Public Instruction, and performing such other duties as may be required by the intermediate unit board of directors and the regulations of the State Board of Education. Id. The governing board of IU 29 also provides a written job description for Alspach which includes various other supervisory and administrative duties. Alspach, however, is under no statutory or IU 29 mandated responsibility to police the actions of independent contractors to insure compliance with the law by contractors. (Affidavit of Alspach, P 6).

 ETC established the plaintiffs' salary and perquisites. (Affidavit of Alspach, [para.] 7). Neither IU 29 nor Alspach were involved in any way in the establishment of the salaries and benefits provided by ETC to its employees. Id. IU 29 and Alspach did nothing to prevent ETC from paying ...

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