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MARK v. BOROUGH OF HATBORO

June 29, 1994

JOHN D. MARK
v.
BOROUGH OF HATBORO, ENTERPRISE FIRE COMPANY, et al.



The opinion of the court was delivered by: JAMES MCGIRR KELLY

 J. M. KELLY, J. Presently before the Court are the Motion for Summary Judgment of Defendant Enterprise Fire Company and the Motion for Summary Judgment of Defendants Borough of Hatboro, Thomas E. McMackin, Charles J. Acker, Bucky L. Clark, Robert S. Doorley, Dottie Newsome, John G. Younglove, Alfred F. Zollers, Robert Stauch, Michael Barger, Roy Thomas, Joseph Reading and John Sine. Plaintiff John D. Mark's Complaint alleges that the Borough of Hatboro and the Enterprise Fire Company violated 42 U.S.C. § 1983 by failing to adopt or follow prudent practices in admitting members to the Enterprise Fire Company. This Court has jurisdiction pursuant to 28 U.S.C. § 1343.

 BACKGROUND AND PROCEDURAL HISTORY

 The facts are uncontested. This action arises out of the destruction of Mark's automobile repair business by an arson fire admittedly set by William Marley, III on March 5, 1991. *fn1" At the time Marley committed the arson, he was a member of the Enterprise Fire Company, a volunteer fire company operating within the Borough of Hatboro.

 Mark alleges that the municipal defendants, acting under the statutory authority granted to the Borough of Hatboro ("Borough") under 53 P.S. § 46202(21), undertook to provide fire protection services through the Enterprise Fire Company ("Company"). Enterprise has been providing fire protection services to the Borough since 1890. It also has a verbal agreement with neighboring volunteer fire companies for assistance. Its members are volunteers and not employees of the Borough. *fn2" It receives funding through private donations and a five and one half mil fire tax subsidy from the Borough.

 The gravamen of Mark's Complaint is that, by their membership policies, the Borough and Company created or enhanced the risk to Mark of arson fire. Specifically, Mark alleges that Marley was permitted to join the Company despite a personal and psychological background that should have alerted the Company that he was a potential arsonist and, thus, unsuitable for membership in a fire company. Mark asserts that Marley would not have been permitted to join or remain in the Company but for policies and practices of the Company and Borough of not performing appropriate background examinations of either applicants or existing members. Mark contends that Marley would not have set the fire had he not been in the position of being able to fight fires. The Borough's and Company's membership policies are alleged to be willful, wanton, and deliberately indifferent to the rights and safety of Mark, because those policies and practices were adopted in the face of actual knowledge that volunteer fire companies attract arson-prone individuals.

 STANDARD OF REVIEW

 Under Fed. R. Civ. P. 56(c), summary judgment "shall be rendered forthwith 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." This court is required, in resolving a motion for summary judgment pursuant to Rule 56, to determine whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In making this determination, the evidence of the nonmoving party is to be believed, and the district court must draw all reasonable inferences in the nonmovant's favor. See id. at 255. Furthermore, while the movant bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact, Rule 56(c) requires the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 ENTERPRISE FIRE COMPANY'S SUMMARY JUDGMENT MOTION

 In its Motion for Summary Judgment, the Company makes several arguments in support of its position that the Complaint should be dismissed as a matter of law. The Company argues

 that: (1) the Company did not act "under color of state law";

 (2) the Fourteenth Amendment does not impose a duty upon the Company to protect individuals from the violence of non-state actors; (3) there is no constitutional requirement of psychological screening of applicants for membership in a fire company; and (4) Mark can produce no evidence of a conscious decision on the part of the Company that would represent deliberate indifference.

 1. Requirements f or a Claim under 42 § U.S.C. 1983

 When a plaintiff alleges a claim under § 1983, the court must determine: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person or rights, privileges or immunities secured by the Constitution or laws of the United States. *fn4" Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1987); Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993). The threshold issue in this § 1983 action is whether the Company was a state actor. *fn5" Wyatt v. Cole, 118 L. Ed. 2d 504, U.S. , 112 S. Ct. 1827, 1830 (1992). I find that the issue of state action is determinative in this case, and, for the reasons that follow, that the Company did not act under color of state law.

 2. State Action Standard

 The ultimate issue in a § 1983 case is whether the alleged infringement of federal rights stems from conduct fairly attributable to the state. Lugar v. Edmondson Oil Co., 457 U.S. 922, 938, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). This superficially simple concept has proven extremely difficult to apply in practice. Community Medical Ctr. v. Emergency Medical Services, 712 F.2d 878, 879 (3d Cir. 1983). There is no single analysis applicable to determine the presence of state action in a § 1983 case. Krynicky v. University of Pittsburgh, 742 F.2d 94, 98 (3d Cir. 1984), cert. denied, 471 U.S. 1015, 85 L. Ed. 2d 300, 105 S. Ct. 2018 (1985). However, Supreme Court jurisprudence suggests at least three relevant approaches. Goussis v. Kimball, 813 F. Supp. 352, 356 (E.D. Pa. 1993). These include the "public function" test, which inquires into whether a private actor is engaging in activities that are the exclusive prerogative of the state, Rendell-Baker v. Kohn, 457 U.S. 830, 842, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982); the "close nexus" test, which determines whether the state can be deemed responsible for the specific conduct of which the plaintiff complains, Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974); and the "symbiotic relationship" approach, which examines the relationship between the parties to determine whether the state has "insinuated itself into a position of interdependence with [the acting party]" sufficiently to be a joint participant in the challenged activity, Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961); see also Blum v. Yaretsky, 457 U.S. 991, 1004-05, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982); Goussis, 813 F. Supp. at 356-57.

 A. Public Function Test

 The Company argues that national and local history, tradition and law indicate that firefighting in the Borough has not been an exclusive governmental function. Therefore, as a contractor performing firefighting services on a volunteer basis, the Company cannot be considered a state actor. Mark responds that the Company is a state actor because fire fighting is generally regarded as a public function, one that is traditionally the exclusive prerogative of the state. In support of his argument, he cites to dicta from a United States Supreme Court decision. The Court wrote:

 
And we would be remiss if we did not note there are a number of state and municipal functions . . . which have been administered with a greater degree of exclusivity by states and municipalities than has been the function of so-called dispute resolution. Among these are such functions as education, fire and police protection, and tax collection. We express no view as to the extent, if any, to which a city or State might be free to delegate to private parties the performance of such functions and thereby avoid the strictures of the Fourteenth Amendment.

  Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 163-64, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978) (citation and footnote omitted). *fn6" Thus, the Supreme Court has not directly decided whether fire protection is an exclusive governmental function.

 The Supreme Court has rejected the idea that any private entity that performs a "public function" is a state actor. Rendell-Baker, 457 U.S. at 841. The question is whether the function performed has been "traditionally the exclusive prerogative of the state." Id. at 842 (quoting Jackson, 419 U.S. at 352). It is a factually intensive analysis, to be decided by considering all of the surrounding circumstances. Lugar, 457 U.S. at 939; Braden v. University of Pittsburgh, 477 F.2d 1, 6 (3d Cir. 1973); Kronmuller v. West End Fire Co., 123 F.R.D. 170, 173 (E.D. Pa. 1988). The record is fully developed in this case, and the matter is ripe for the Court's determination of whether the Company is a state actor. *fn7"

 In recent years, the Supreme Court has evaluated a number of functions delegated to private entities to determine whether the entity was performing a function that had traditionally been the exclusive prerogative of the state. The Court declined to find that an electric company providing an essential, statutorily-mandated public service was a state actor. Jackson, 419 U.S. at 353. The Court also declined to find that a public defender was a state actor, even though he was employed and paid by the State. Polk County v. Dodson, 454 U.S. 312, 324, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981). Similarly, the Court found that Massachusetts' legislative decision to educate special needs high school students at public expense "in no way makes the services the exclusive province of the State." ...


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