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MCKINNEY v. WEST END VOLUNTARY AMBULANCE ASSN.

November 13, 1992

RUBY McKINNEY, Mother and Best Friend of MICHAEL McKINNEY, Plaintiff,
v.
WEST END VOLUNTARY AMBULANCE ASSOCIATION, Defendant.



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

 VAN ANTWERPEN, J.

 NOVEMBER 13, 1992

 I. INTRODUCTION

 This 42 U.S.C. § 1983 action with pendant state claims in tort is brought by the plaintiff, Ruby McKinney as the mother and best friend of Michael McKinney, against the defendant, West End Voluntary Ambulance Association ("Ambulance Association"). *fn1" The plaintiff's four-count Complaint is based upon the Ambulance Association's alleged refusal to render medical assistance to Michael McKinney, who was the victim of a shooting, on the basis of race. Before the court is the Ambulance Association's Motion for Summary Judgment. For the reasons stated below, we grant the Ambulance Association's Motion as to the section 1983 claim in Count III and dismiss the state law claims set forth in Counts I, II, and IV without prejudice.

 II. FACTUAL BACKGROUND

 The Ambulance Association is a private, non-profit organization that provides emergency medical care and transportation of patients in Lancaster County, Pennsylvania. The Board and Staff Members of the Ambulance Association are neither government officials, nor appointed by government officials. Its membership consists of volunteers. The Ambulance Association is primarily funded through donations and fees collected for its services, which include fees paid by Medicaid and Medicare. However, none of its staff are paid directly by the government. The Ambulance Association owns and paid for both the building from which it operates and all of the equipment utilized to provide emergency medical service. *fn2"

 The Commonwealth of Pennsylvania extensively regulates the Ambulance Association and the emergency medical technicians ("EMS personnel") that crew its ambulances. The Emergency Medical Services Act ("Act") was passed to establish and maintain an effective and efficient emergency medical services system, accessible on a uniform basis to all Pennsylvania residents and to visitors of the Commonwealth. 35 Pa. Cons. Stat. Ann. § 6922(b)(1) (Supp. 1992). Under the Act, the Department of Health is charged with the responsibility to plan, guide, and coordinate programs to ensure that the emergency medical service system provides essential emergency service. 35 Pa. Cons. Stat. Ann. §§ 6924, 6925 (Supp. 1992). The Act provides for the preparation of a comprehensive emergency medical services development plan, in which objectives, methods, and schedules for achieving such objectives are set forth. 35 Pa. Cons. Stat. Ann. § 6929 (Supp. 1992). The Department of Health also has the responsibility to establish educational standards and approve basic training programs for EMS personnel, to certify EMS personnel meeting the requirements of the Act, and to assure the availability of continued training. 35 Pa. Cons. Stat. Ann. §§ 6931, 6932(f) (Supp. 1992). Additionally, the Act and regulations promulgated under the authority of the Act establish licensure standards for an ambulance service, such as how an ambulance is to be equipped and minimum staffing requirements. 35 Pa. Cons. Stat. Ann. § 6932 (Supp. 1992); 28 Pa. Code § 1005.10 (1992). An inspection of an ambulance service's vehicles, equipment, and personnel qualifications is to be conducted by the Department of Health at least once every three years. 35 Pa. Cons. Stat. Ann. § 6932(k) (Supp. 1992). Lastly, the Department of Health may suspend, revoke, or refuse to issue an ambulance service license and certification of EMS personnel on many grounds, but of particular consequence to this case, is the ground for refusing to render emergency medical service "because of a patient's race, sex, creed, national origin, sexual preference, age, handicap, medical problem or financial inability to pay." 28 Pa. Code §§ 1003.27(a)(10), 1005.12(a)(15) (1992).

 The Ambulance Association also has a relationship with the government through the 911 system. In Lancaster County, emergency services are coordinated through the 911 system, which is a county-wide emergency dispatch system operated by the Lancaster County government. Other than receiving emergency calls through the 911 system, the Ambulance Association has no connection with the County.

 The dispute is this case arises in the aftermath of the shooting of Michael McKinney on July 20, 1991 in Lancaster, Pennsylvania. The plaintiff alleges that McKinney's companion, Anthony Kelley, flagged down the defendant's ambulance while McKinney and Kelley were en route to the Lancaster Police Station. The ambulance was fully staffed with three certified emergency medical technicians of the Ambulance Association and properly equipped in accordance with the regulations. Thus, the plaintiff contends that the Ambulance Association had the ability to provide emergency care, or at least contact the proper authorities. However, after Kelley informed the ambulance crew that his friend had been shot, he was allegedly told that the ambulance was off duty and that he should call 911, after which the ambulance drove away. McKinney and Kelley then proceeded to walk the remaining two blocks to the police station. The plaintiff contends that when the young men stopped the ambulance the crew was aware that McKinney was seriously wounded, but refused to render assistance because McKinney and Kelley were black.

 III. STANDARD OF REVIEW

 Summary Judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . 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). 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, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). This burden may be discharged by demonstrating that there is an absence of evidence to support the non-moving party's case. Id. at 325, 106 S. Ct. at 2554 . Where the non-moving party opposing summary judgment has the burden of proof at trial on an issue for which summary judgment is sought, such a party must then make a showing sufficient to establish the existence of the essential elements of her case in order to survive a summary judgment motion. Id. at 322-23, 106 S. Ct. at 2552 . In making such a determination, the appropriate inquiry is whether there is a need for a trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). "Where the full record, taken together could not lead a rational trier of fact to find for the non-moving party, no genuine issue exists for trial." United States v. One 107.9 Acre Parcel of Land, 898 F.2d 396, 398 (3d Cir. 1990) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1355-56, 89 L. Ed. 2d 538 (1986)).

  In applying the standard for summary judgment, our analysis is guided by the following well established rules. All inferences must be drawn 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); Continental Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982), all doubts must be resolved against the moving party, Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citations omitted), cert. denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985), and all allegations of the non-moving party that conflict with those of the movant must be taken as true. Anderson, 477 U.S. at 255, 106 S. Ct. at 2513 . However, "the mere existence of some allegedly factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48, 106 S. Ct. at 2510. If the evidence is merely "colorable" or "not significantly probative", summary judgment may be granted. Id. at 249, 106 S. Ct. at 2511. A party resisting a summary judgment motion "cannot . . . rely merely upon bare ...


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