Mark v. Borough of Hatboro, 94-1722

• Citation: 51 F.3d 1137
• Decision Date: 28 April 1995
• Docket Number: No. 94-1722,94-1722
• Parties: John D. MARK, Appellant, v. BOROUGH OF HATBORO, Thomas E. McMackin, Charles J. Acker, Bucky L. Clark, Robert S. Doorley, Dottie Newsome, John G. Younglove, Esquire, Alfred F. Zollers, Robert Stauch, Michael Barger, Roy Thomas, Joseph Reading, John Sine, William Marley III, Enterprise Fire Company.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1137

51 F.3d 1137

John D. MARK, Appellant, v. BOROUGH OF HATBORO, Thomas E. McMackin, Charles J. Acker Bucky L. Clark, Robert S. Doorley, Dottie Newsome, John G Younglove, Esquire, Alfred F. Zollers, Robert Stauch Michael Barger, Roy Thomas, Joseph Reading, John Sine William Marley III, Enterprise Fire Company.

No. 94-1722.

United States Court of Appeals, Third Circuit.

Argued Dec. 20, 1994.

Decided March 31, 1995.

Sur Petition for Rehearing April 28, 1995.

Robert W. Small (argued), Berlinger & Small, Abington, PA, for appellant.

Larry D. Jackson (argued), Harris & Silverman, Philadelphia, PA, for appellee the Enterprise Fire Co.

Juliana P. Maffei (argued), Joseph A. Santarone, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, for appellees Borough of Hatboro, Thomas E. McMackin, Charles J. Acker, Bucky L. Clark, Robert S. Doorley, Dottie Newsome, John G. Younglove, Esquire, Alfred F. Zollers, Robert Stauch, Michael Barger, Roy Thomas, Joseph Reading and John Sine.

Before: GREENBERG, SAROKIN, and WEIS, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. Introduction

On March 5, 1991, defendant William Marley III, a member of the Enterprise Fire Company, a volunteer fire company in the Borough of Hatboro, Pennsylvania, set fire to and destroyed plaintiff John D. Mark's automobile repair business. The question on this appeal is whether the Borough and Enterprise can be held liable under 42 U.S.C. Sec. 1983, the federal civil rights statute, for damages resulting from the arson. The district court granted defendants' motions for summary judgment, basing the decision on its finding that Enterprise was not a state actor for section 1983 purposes, and that it operates independently of the Borough. We conclude that the district court erred in holding that Enterprise is not a state actor. Nonetheless, our review of the record compels the conclusion that the defendants cannot be held responsible under section 1983

for the harm that occurred. ¹ We, therefore, will affirm the grant of summary judgment.

II. Factual background and procedural history

Enterprise is a private association of volunteers which has served the Borough of Hatboro since 1890. Mark v. Borough of Hatboro, 856 F.Supp. 966, 968 (E.D.Pa.1994). In its day to day operations, Enterprise essentially acts autonomously; it owns the fire station and the fire-fighting equipment, elects its own officers, prepares its own budget and maintains its own recruitment and training practices. However, on September 28, 1987, Enterprise signed an agreement with the Borough, agreeing to provide fire protection services to the Borough in return for the latter's imposition of a fire tax. The Borough insures Enterprise's equipment, and the fire tax funds Enterprise's operations and expenditures. Id. at 973-74.

According to Enterprise's by-laws (as of June 16, 1989), "[a]ny person shall be eligible to be a regular member of the Company if they are eighteen (18) years of age or older and they are of good moral character." Enterprise Fire Company of Hatboro, Pennsylvania By-Laws at app. 59. The by-laws provide the following procedure for admitting an applicant to membership:

(1) An application for regular member [sic] must be made in writing on forms provided by [Enterprise]. The applicant must submit the completed form co-signed by a regular member in 'good standing' who shall be considered the 'proposing member'. A fee of three ($3.00) dollars shall accompany the application.

(2) The Membership Committee shall be in charge of membership and they shall be responsible for the production, distribution and receipt of completed application forms and fees.

(3) Following the submission of the completed application and payment of the fee the Membership Committee shall arrange for the applicant and proposing member to attend the next regular membership meeting when both parties are available.

(4) The applicant and proposing member shall appear at the regular membership meeting at which time the Membership Committee shall introduce the applicant to the regular membership. The application shall then be referred to the Membership Committee for an investigation and recommendation for 'probationary membership'.

(5) At the subsequent regular membership meeting the Membership Committee shall report on the application. If a 'favorable report' is submitted than [sic] the regular membership shall vote to determine whether the applicant shall be accepted for 'probationary membership.' Said vote shall be made by the show of hands and three (3) or more negative votes shall be necessary to defeat the application....

By-laws at app. 59-60. The application is a two-page questionnaire that asks, among other things, whether the applicant has "every [sic] been under the care of or committed to any institution for any nervous condition, mental illness, alcoholism or use of drugs." App. 1-2.

Marley filled out and signed the application on May 9, 1986, and answered "no" to the foregoing question. Id. On May 19, 1986, Enterprise made him a probationary member, and it appears that in May, 1988 he became a regular member. Id. at 1. ² It is undisputed that prior to the Mark fire, Enterprise "never considered the need for psychological testing to identify firefighters having a propensity to commit arson.... Neither did it receive any advice as to whether existing members or applicants for firefighter status could be identified as potential arsonists." Brief of Enterprise Fire Company at 10. According to Mark's interpretation of expert reports, however, Marley had a psychologically troubled background which would have indicated to trained observers that he was not fit to be a firefighter. Additionally, while working as a volunteer firefighter On December 23, 1992, Mark filed a complaint against the Borough, several Borough officials, and Enterprise in the United States District Court for the Eastern District of Pennsylvania to recover his losses from the fire. ³ His complaint alleged that Enterprise's and the Borough's failure to follow adequate policies to ensure that applicants to the fire department were screened sufficiently for tendencies towards arson caused the damage to his property. ⁴ Mark claimed that this duty to screen is compelled constitutionally, and that the danger of volunteer firefighters committing arson is so grave and so obvious that the defendants' failure to follow such a policy evinced willful disregard for the rights of individuals with whom the firefighters came in contact. Mark further alleged that if Enterprise had a policy of psychologically screening applicants or of training its firemen to spot potential arsonists, it would have discovered that Marley was unfit to serve as a volunteer firefighter and it never would have admitted him into membership, so that Marley would not have started the fire. Mark claimed relief pursuant to 42 U.S.C. Sec. 1983 and under state law. The parties have considered the Borough officials on the same basis as the Borough itself, and consequently we shall treat this case as involving only two defendants, Enterprise and the Borough. ⁵

                Marley had a serious drinking problem and, on one occasion, "was cautioned by other members to stay away from the fire officers at the scene [of a fire] because he smelled so strongly of alcohol."   Supplemental Statement of Dian Williams, President of Center for Arson Research, July 11, 1993 at app. 946
                

On February 25, 1993, the Borough moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief could be granted. On March 2, 1993, Enterprise made a similar motion. On April 8, 1993, the district court granted Enterprise's motion to dismiss counts 2 and 3, which alleged, respectively, negligence and willful and wanton conduct, but the district court denied the remainder of the motions.

On December 28, 1993, the defendants moved for summary judgment pursuant to Fed.R.Civ.P. 56(b). In their motion papers, they made a series of alternative arguments, including the following: (1) Enterprise was not a state actor for section 1983 purposes, and therefore Mark had no federal cause of action; (2) the Due Process Clause of the Fourteenth Amendment imposes no duty upon local governments to provide adequate fire protection or to protect the public from fire; (3) no local governmental entity has a due process duty to protect the public against violent acts of private persons; (4) even if Mark's constitutional rights were violated, he failed to demonstrate that the defendants' failure to screen applicants psychologically for membership evinced deliberate indifference; (5) the causal link between the failure to screen and the arson was too remote to support the imposition of liability.

In an opinion and order dated June 30, 1994, reported at 856 F.Supp. 966 (E.D.Pa.1994), the district court granted defendants' motion. The court first addressed the state actor argument, and found that fire-fighting in Pennsylvania never has been an exclusive function of the government, and that there is an insufficient connection between the municipality and Enterprise to justify imposing state actor status on Enterprise. Id. at 970-76. It went on to reason that "[s]ince [the Borough] has no control over [Enterprise's] employment practices in the first place, and since [Enterprise's] acts do not fairly represent official policy, the Borough's policy or lack of policy regarding [Enterprise's] screening of new applicants is not actionable under Sec. 1983." Id. at 976. Upon dismissing Mark filed a timely notice of appeal from the district court's order. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, as the appeal is from a final order disposing of all claims in the complaint. The district court had jurisdiction pursuant to 28 U.S.C. Secs. 1331 and 1343. We exercise plenary review over the district court's grant of summary judgment....