Wynne v. Shippensburg University of Pennsylvania

• Decision Date: 20 December 1985
• Docket Number: Civ. No. 85-0694.
• Citation: 639 F. Supp. 76
• Parties: Robert M. WYNNE, Plaintiff, v. SHIPPENSBURG UNIVERSITY OF PENNSYLVANIA; Anthony F. Ceddia, Benjamin S. Nispel, Hugh E. Jones, H. Erik Shaar, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

639 F. Supp. 76

Robert M. WYNNE, Plaintiff, v. SHIPPENSBURG UNIVERSITY OF PENNSYLVANIA; Anthony F. Ceddia, Benjamin S. Nispel, Hugh E. Jones, H. Erik Shaar, et al., Defendants.

Civ. No. 85-0694.

United States District Court, M.D. Pennsylvania.

December 20, 1985.

Debra K. Wallet, Camp Hill, Pa., for plaintiff.

Susan J. Forney, Sr. Deputy Atty. Gen., Harrisburg, Pa., for defendants.

MEMORANDUM AND ORDER

CONABOY, District Judge.

We consider here the motion of Defendant Shippensburg University (hereinafter Shippensburg) to dismiss this complaint as to it for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. This motion was briefed in timely fashion as was the opposing brief of Plaintiff Robert M. Wynne, formerly a tenured faculty member at Shippensburg. Thus, this motion is now ripe for decision. For the reasons which follow, we shall grant the motion.

This is essentially a wrongful termination action brought under the guise of 42 U.S.C. § 1983 — the federal statute which provides a remedy for those persons whose federally protected rights are violated by persons acting under color of state law — 28 U.S.C. § 1343 and the 14th Amendment to the United States Constitution.

Plaintiff alleges that he had taught at Shippensburg from August 24, 1970 until what he claims was his sudden termination on August 17, 1984. He further alleges that he had acquired tenured status in May of 1973 and, thus, acquired a property interest in his position which cannot be extinguished without due process of law (i.e. adequate notice of the reason for his dismissal and an opportunity to be heard in opposition to said dismissal). Finally, he alleges that a collective bargaining agreement was in force between the Commonwealth of Pennsylvania and the Association of Pennsylvania State College and University Faculty which provided that tenured faculty members could not be terminated without just cause.

Shippensburg does acknowledge the fact that Plaintiff Wynne enjoyed tenured status but denies that his termination was sudden or that he had no opportunity to oppose it. Shippensburg's position was stated concisely as:

... Plaintiff had been continually advised of his position being in jeopardy, and plaintiff had been evaluated negatively repeatedly, with respect to his teaching performance. See Docket Item 7, paragraph 15.

... Plaintiff was also given several opportunities to present reasons, either in person or in writing, why the termination should not take place. Id., paragraph 26.

Defendant Shippensburg's motion to dismiss this case is based on two premises: (a) that Shippensburg is a state agency and, thus, is not susceptible to suit under § 1983 because it is not a "person" within the meaning of that statute; or (b) that the 11th Amendment to the United States Constitution, as delineated in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), and its progeny, precludes lawsuits against a state or its agencies by its own citizens.

I. May Shippensburg be characterized as a "person" within the meaning of 42 U.S.C. § 1983?

Shippensburg's first defense is predicated on the fact that it would answer the question above in the negative. Rochester v. White, 503 F.2d 263 (3d Cir.1974), is cited for the proposition that "... federal courts have long recognized that neither the Commonwealth nor its agencies are "persons" within the meaning of § 1983".¹ This begs the questions, however, of whether Shippensburg University is a state agency.

Plaintiff Wynne argues that the term "person" "... extends to such entities as corporations and municipalities ..." and "... Universities are among the entities which have been held to be `persons'. (citations omitted)".² It is, therefore, obvious that, to answer this question of whether Shippensburg is a "person" or "state actor" under § 1983, we must first determine whether Shippensburg may be appropriately characterized as a state agency. This leads directly to Defendant's second argument.

II. May Shippensburg be characterized as a state agency which is immune to suit in federal court due to immunity conferred by the 11th Amendment?

This question is to be resolved under a very different standard from that used in deciding whether an entity is a "person" or "state actor" under § 1983.³ The parties agree that the test to be utilized in determining whether an agency is an "arm of the state" or state agency for 11th Amendment purposes was first announced in Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247 (3d Cir.1969), certiorari denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970). We note that the Urbano test has been utilized recently to resolve a similar dispute by Judge Caldwell in Braderman v. Pennsylvania Housing Finance Agency, 598 F.Supp. 834, 836 (M.D.Pa.1984). We think it plain that the Urbano test is the appropriate standard to apply here.

The briefs of the parties frame an interesting question as to whether the current Pennsylvania State Universities — Shippensburg included — remain state agencies in the aftermath of the enactment of 24 P.S. § 20-2001-A et seq., the statute which has transformed the former state colleges into state universities. Plaintiff admits that it was clear prior to the passage of said statute that the state colleges were state agencies. Plaintiff admits, too, that Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53 (3d Cir.1976), cert. denied 429 U.S. 979, 97 S.Ct. 490, 50 L.Ed.2d 588, a case relied upon by Defendant Shippensburg, stood for the very proposition that the state colleges of Pennsylvania were agencies of the state. Plaintiff alleges, however, that the passage of 24 P.S. § 20-2001-A et seq. has robbed Skehan, supra, of its vitality and that "the 1982 legislative enactment which transformed `Shippensburg State College' into the present `Shippensburg University' substantially altered the relationship between the Commonwealth of Pennsylvania and the University."⁴

Plaintiff then asserts:⁵

The test for determining whether or not an entity is an agency of the state for Eleventh Amendment purposes has been set out and explained in Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247 (3d Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 ... Several factors are to be considered:

... Local law and decisions defining the status and nature of the agency involved in its relations to the sovereign are factors to be considered, but only one of a number that are of significance. Among the other factors, no one of which is conclusive, perhaps the most important is whether, in the event plaintiff prevails, the payment of the judgment will have to be made out of the state treasury; significant here also is whether the agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and to be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency's operations. Urbano, supra at 250-51.

In the reply brief of Defendant Shippensburg there is no quarrel with the Plaintiff's position that the factors mentioned in Urbano should be resorted to in an effort to determine whether Shippensburg is a state agency. Defendant Shippensburg does state, however, that "it has properly invoked Eleventh Amendment immunity, when the relevant (Urbano) factors are considered. ..."⁶ It remains for this Court to examine the facts of this case with respect to these factors in order to determine the status of Shippensburg University. If Shippensburg is an "arm of the state" with respect to the weight of the Urbano factors, then it enjoys 11th Amendment immunity from suit in federal court. We shall sequentially analyze these factors as they affect this case.

A. Local Law and Decisions Defining the Status and Nature of Shippensburg University in its Relation to the Commonwealth of Pennsylvania.

Plaintiff contends:⁷

The statutory scheme is apparently too new for authoritative state court decisions on the sovereign immunity issue, but the enabling legislation itself is helpful in understanding the relationship between Shippensburg University and the Commonwealth. Unlike its predecessor state college, Shippensburg University is a part of a "body corporate and politic" which is "independent of the Department of Education". Section 20-2002-A(A).

Plaintiff also points out that this new system is governed by a 16 member Board of Governors which appoints a chancellor and a president who are charged with overseeing the day-to-day operation of state universities. He also notes that planning and coordinating the development and operation of the system is a responsibility which lies with the Board of Governors and not with the Secretary of Education.

While this data seems to suggest that Shippensburg is sufficiently independent of Commonwealth control to be denied the status of a state agency, Plaintiff has neglected to include language from the same statute he cites which is less supportive of his position. As Defendant points out in its reply brief:⁸ "24 P.S. § 20-2002-A(a) provided, inter alia, that the State System of Higher Education is `a body corporate and politic constituting a public corporation and government instrumentality'...." (emphasis ours). Moreover, there is a Pennsylvania decision subsequent to the enactment of the statute which transformed the state colleges into state universities which deals with the question of whether the Commonwealth System of Higher Education is a state agency. While said decision — Pennsylvania Industries for the Blind and Handicapped v. Commonwealth of Pennsylvania, State...