# PAPA v. NESHANNOCK VFD

> District Court, W.D. Pennsylvania · May 18, 2021

URL: https://www.frixlaw.com/law-library/cases/10416567

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** May 18, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Anne M. Papa, CIVIL ACTION NO. 21-77

Plaintiff,

v.

Neshannock VFD,
Neshannock VFD Board,
Chief John DiCola,
Deputy Bradley Shaffer,
Deputy Brian Melcer,
Justin Aller,

Defendants.

OPINION
This case arises from the termination of plaintiff Anne M. Papa (“Papa”) as a member of a
volunteer fire department (“VFD”). The lawsuit was originally filed in the Court of Common
Pleas of Lawrence County, Pennsylvania, and removed to this court (ECF No. 1). Now pending
are renewed motions to dismiss the amended complaint (ECF Nos. 12, 20) filed on behalf of all
defendants.

Factual1 and Procedural Background
Papa applied for membership in the Neshannock VFD in 2016, when she was a student at
Westminster College. She graduated at the top of her class in firefighting training, was certified
as a Firefighter One by the Commonwealth of Pennsylvania, and achieved full membership in

1 The factual background is taken from the amended complaint and the factual allegations in the amended
complaint are regarded as true for purposes of resolving a motion to dismiss. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007).
the Neshannock VFD. The membership of the Neshannock VFD is overwhelmingly male. Papa
alleges that several male members of the Neshannock VFD resented that an enthusiastic female
was showing them up. She believes that defendants formed a plan to force her out.
In January 2020, defendant Justin Aller (“Aller”) reported that Papa cut her own leg so

that she could practice doing sutures. Deputy Shaffer authored a memo to the Neshannock VFD
Board mischaracterizing Papa’s actions. Papa contends that the January 2020 accusation was
false and motivated by sex-based animus; she avers that she accidentally was cut earlier that
evening and provided self-care based upon her experience as a licensed EMT. Papa was not
directly informed about the allegation, but learned that her membership would be terminated
without a hearing. Papa confronted the allegations through counsel. In February 2021, the
Neshannock VFD issued a letter to Papa indicating that her “recent activity” was detrimental to
the health and safety of others and herself. Papa believed that the incident had been resolved and
continued her volunteer duties.
On July 20, 2020, at 1:00 a.m., Papa was seen on surveillance cameras removing a Self-

Contained Breathing Apparatus from the station. Plaintiff was terminated from her membership
in the Neshannock VFD on July 27, 2020, after a special meeting. Papa contends that borrowing
equipment was a common occurrence, she made no effort to hide her activity, and the incident
was used as a pretext to terminate her membership due to sex-based animus and in retaliation for
standing up to the Neshannock VFD after the January 2020 incident. She alleges that she was
terminated without a hearing or opportunity to tell her side of the story, and the termination
impacts her career objective to become a professional firefighter. Papa believes that false and
misleading allegations against her were widely published to the Neshannock VFD membership
and the local community.
Defendants filed a motion to dismiss the original complaint, which plaintiff mooted by
filing an amended complaint (ECF No. 9), which is the operative pleading. In the amended
complaint, Papa asserts three § 1983 claims and eight pendant state law claims, as follows:
Count 1: § 1983, deprivation of liberty interest;
Count 2: § 1983, Equal Protection based on sex;
Count 3: § 1983, denial of due process;
Count 4: PHRA sex discrimination;
Count 5: breach of contract/duty of good faith;
Count 6: retaliatory discharge against public policy;
Count 7: quasi contract, unjust enrichment, promissory estoppel;
Count 8: false light and invasion of privacy;
Count 9: defamation, libel and slander;
Count 10: negligent or intention infliction of emotional distress; and
Count 11: fraud (vs. Aller and Shaffer only).

Each of the claims (except Count 11) are asserted against all six named defendants. Often, Papa
fails to allege specific facts about the conduct of each named defendant. She seeks in excess of
$900,000 in compensatory damages, plus punitive damages, interest, costs, attorney fees and
reinstatement to active membership in the Neshannock VFD (ECF No. 9 at 13, 31).
Defendants Neshannock VFD, Neshannock VFD Board, Chief John DiCola, Deputy
Shaffer and Deputy Brian Melcer renewed their motion to dismiss the amended complaint (ECF
No. 12). Defendant Aller, a fellow volunteer firefighter, filed a separate motion to dismiss (ECF
No. 20). Defendants seek dismissal of all claims and attached numerous exhibits to their
motions.
On April 7, 2021, the court issued an order to show cause why the § 1983 claims should
not be dismissed for failure to plead “state action” and the remaining state law claims remanded
to the state court (ECF No. 22). In particular, the court instructed the parties to address decisions
“which appear to indicate that the internal disciplinary decisions of a private organization such as
Neshannock VFD do not constitute state action even if the organization itself is heavily involved
in a state function.” Id. at 2.
Defendants’ response to the show cause order asserted that the § 1983 claims should be
dismissed with prejudice for failure to plead state action (ECF No. 23). Defendants, however,
urged this court to retain supplemental jurisdiction over the state law claims.

Plaintiff’s response to the show cause order (ECF No. 24) contended that the § 1983
claims should not be dismissed. Papa recognized that a private actor can only be held liable
under § 1983 when its conduct can be “fairly attributable to the State.” Rendell-Baker v. Kohn,
457 U.S. 830, 838 (1982). Papa argued that the Neshannock VFD’s conduct is fairly attributable
to the state because, as a volunteer fire department, it performs a traditional function of
government. Plaintiff acknowledged decisions in which termination of membership in a
volunteer fire department was held not to implicate state action. (ECF No. 24 at 2) (“See
Dufresne v. Camden-Wyoming Fire Co. Inc., No. CV K19C-03-008 NEP, 2020 WL 2125797, at
*6 (Del. Super. Ct. May 5, 2020) (termination of volunteer firefighter’s membership did not
implicate state action); Ehart v. Odessa Fire Co., No. CIV.02-1618-SLR, 2005 WL 348311, at

*3 (D. Del. Feb. 2, 2005) (dismissing § 1983 claims arising from termination of a firefighter’s
membership)”). The motions to dismiss are now ripe for decision.

Legal Analysis
A. Federal Question Claims
The court will first address the § 1983 claims, because those claims provide the only
basis for this court’s removal jurisdiction. To prevail on her § 1983 claims, Papa must plead: (1)
she has been deprived of a right, privilege or immunity secured by the Constitution or laws of the
United States; and (2) the conduct complained of was committed by a person acting under the
color of state law. 42 U.S.C. § 1983.
The § 1983 statutory requirement of action “under color of state law” is identical to the
“state action” requirement of the Fourteenth Amendment. Lugar v. Edmondson Oil Co., 457
U.S. 922, 929 (1982). The “state action” requirement “reflects judicial recognition of the fact

that ‘most rights secured by the Constitution are protected only against infringement by
governments.’” Id. at 936 (1982) (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156
(1978)). “This fundamental limitation on the scope of constitutional guarantees ‘preserves an
area of individual freedom by limiting the reach of federal law’ and ‘avoids imposing on the
State, its agencies or officials, responsibility for conduct for which they cannot fairly be
blamed.’” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 (1991) (quoting Lugar, 457
U.S. at 936–37).
On the other hand, private entities may sometimes be viewed as acting under color of
state law – in other words, their conduct may implicate state action -- because the Constitution
“constrains governmental action by whatever instruments or in whatever modes that action may

be taken.” Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 392 (1995). The Supreme Court
has employed various approaches to determine whether a private entity is engaged in state
action.2 The line is not always clear.
To state a valid § 1983 claim, a plaintiff must plead with plausibility that the conduct
being challenged in the case was under the color of state law, i.e., constituted “state action.” 42

2 The Third Circuit Court of Appeals has articulated the three “broad tests generated by Supreme
Court jurisprudence to determine when state action exists” in a context involving a private entity or actor:
(1) “whether the private entity has exercised powers that are traditionally the exclusive prerogative of the
state”; (2) “whether the private party has acted with the help of or in concert with state officials”; and (3)
“whether the [s]tate has so far insinuated itself into a position of interdependence with the acting party
that it must be recognized as a joint participant in the challenged activity.” Kach, 589 F.3d at 646. Under
any test, the inquiry is fact specific. Id.
U.S.C. § 1983. In Kach v. Hose, the United States Court of Appeals for the Third Circuit
described the requirement that the private entities’ specific conduct must constitute “state action”
for a § 1983 claim as follows:
“state action will be found if there is a sufficiently close nexus between the state
and the challenged action of the regulated entity so that the action may be fairly
treated as that of the State itself.” Boyle v. Governor's Veterans Outreach &
Assistance Ctr., 925 F.2d 71, 76 (3d Cir. 1991) (emphasis in original and internal
quotation marks and citation omitted). “[T]he purpose of this requirement is ‘to
assure that constitutional standards are invoked only when it can be said that the
State is responsible for the specific conduct of which the plaintiff complains.’” Id.

Kach, 589 F.3d 626, 648 (3d Cir. 2009) (emphasis in original). The “focus of our inquiry is not
on whether the state exercises control over a putative state actor as a general matter, but whether
the state has exercised control over the particular conduct that gave rise to the plaintiff's alleged
constitutional deprivation.” Id. at 649. The court emphasized: “the private conduct is fairly
attributable only when the state has had some affirmative role, albeit one of encouragement short
of compulsion, in the particular conduct underlying a claimant's civil rights grievance.” Id.
(emphasis in original). “In other words, the government must be responsible for the specific
conduct of which the plaintiff complains.” Borrell v. Bloomsburg Univ., 870 F.3d 154, 160 (3d
Cir. 2017).
Acts of private contractors do not become “state action” simply because the private entity
is performing a public contract. Kach, 589 F.3d at 648. The actual conduct that forms the basis
for the claim must be “fairly attributable to the State.” Rendell-Baker, 457 U.S. at 838. In
Rendell-Baker, the Supreme Court explained: “[A] State normally can be held responsible for a
private decision only when it has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the choice must in law be deemed to be that of the
State.” Rendell-Baker, 457 U.S. at 840. The Supreme Court emphasized that acts of private
contractors “do not become acts of the government by reason of their significant or even total
engagement in performing public contracts.” Id. at 841. The Court explained that the
employment “relationship between the school and its teachers and counselors is not changed
because the State pays the tuition of the students.” Id. A private school, even though its income

was derived primarily from public sources and it was regulated by public authorities, was not
acting under color of state law when it discharged employees. Id.
In Rendell-Baker, the Supreme Court held there was no “state action” because “the
decisions to discharge the petitioners were not compelled or even influenced by any state
regulation.” Id.; see id. at 843 (White, J., concurring) (“the critical factor is the absence of any
allegation that the employment decision was itself based upon some rule of conduct or policy put
forth by the State.”). Accord Blum v. Yaretsky, 457 U.S. 991 (1982) (state’s funding and
extensive regulation of nursing homes did not make patient discharge decisions of physicians
and nursing home administrators acts of the state). In Rendell-Baker, the Court recognized that
the discharged employees may be able to pursue claims for employment discrimination under

Title VII, but could not succeed under § 1983. 457 U.S. at 837. In sum, the personnel and
membership decisions of private, volunteer organizations such as Neshannock VFD generally do
not implicate state action.
These legal principles have been applied in the specific context of termination of a
volunteer’s membership in a VFD. In Dufresne, the court concluded there was no “state action”
because allegations about termination of a volunteer firefighter’s membership and defamation
were not related to the public function of firefighting, rejected the plaintiff’s request to take
discovery, and granted a motion to dismiss the § 1983 claims. Dufresne, 2020 WL 2125797 at
*13. In Ehart, after discussing Rendell-Baker, the court concluded that a volunteer firefighter
failed to establish that defendants acted under color of state law in terminating his membership.
Ehart, 2005 WL 348311 at *3; accord Ponsford v. Mercyhurst Univ., No. CV 19-217, 2020 WL
1049180, at *3 (W.D. Pa. Mar. 4, 2020) (dismissing § 1983 claims) (“the state, even if arguably
involved in Defendant's day-to-day operation, played absolutely no role in her termination.”).

It is not sufficient to argue that an entity, such as the Neshannock VFD, is performing a
public function in a general sense. (See Plaintiff’s Response, ECF No. 24 at 2, citing Edmonson,
500 U.S. at 624).3 Instead, a plaintiff’s factual allegations must be sufficient for the court to
infer plausibly that the specific conduct at issue in the litigation is fairly attributable to the state.
Rendell-Baker, 457 U.S. at 841; Kach, 589 F.3d at 649. Even though the court quoted Kach in
the show cause order about the need to show how the specific conduct at issue constitutes state
action, Papa did not address that precedential decision in her response.
The decisions cited by Papa or located in the court’s independent research with respect to
volunteer fire companies are not to the contrary. In Mark v. Borough of Hatboro, 51 F.3d 1137,
1142 (3d Cir. 1995), the court noted that Pennsylvania VFDs are usually deemed to be state

actors as a factual matter, but the specific conduct at issue in Mark involved a citizen whose
house was burned down by a firefighter, not an internal membership issue. In Versarge v.
Township of Clinton, 984 F.2d 1359, 1361, 1363 (3d Cir. 1993), the dispute involved a
firefighter acting in his capacity as director of a Homeowners Association. The Third Circuit
Court of Appeals assumed, without deciding, that the VFD engaged in the requisite state action
and dismissed the § 1983 claims on the merits. In Dunkel v. Mt. Carbon/North Manheim Fire
Co., 970 F. Supp.2d 374, 379 (M.D. Pa. 2013), the parties did not contest whether the VFD was

3 The Supreme Court stated in Edmonson that “[i]f a government confers on a private body the power to
choose the government's employees or officials, the private body will be bound by the constitutional
mandate of race neutrality.” 500 U.S. at 625. There is no allegation in this case that Pennsylvania
conferred on the Neshannock VFD the power to choose the government’s employees.
acting under color of state law. In Erdley v. William Cameron Engine Co., No. 17-2068, 2018
WL 4354470 (M.D. Pa. Sept. 12, 2018), the court did not analyze whether the VFD engaged in
state action in terminating a professional EMT.
In this case, Papa failed to allege any plausible basis for “state action” with respect to the

conduct at issue in the amended complaint. The actions of which she complains occurred within
the scope of her membership obligations in the Neshannock VFD. The crux of her § 1983 claims
is that the Neshannock VFD’s internal disciplinary procedures were improper. As the Supreme
Court made clear in Rendell-Baker, internal disciplinary decisions of a private volunteer
organization do not become state action -- even if the organization itself is heavily involved in a
state function.
The court concludes that the § 1983 claims are subject to dismissal at this stage of the
case. See Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995) (“The color of
state law element is a threshold issue; there is no liability under § 1983 for those not acting under
color of law.”) (citing Versarge, 984 F.2d at 1363); Showell v. Acorn Hous. Corp. of Conn., No.

CIV. A. 97-1200, 1997 WL 597897, at *4 (E.D. Pa. Sept. 17, 1997) (dismissal is proper under
Rule 12(b)(6) where § 1983 complaint did not allege that a government entity participated even
minimally in a private actor’s decision to terminate plaintiff's employment) (citations omitted);
Schneider v. Arc Of Montgomery Cty., 497 F. Supp. 2d 651, 659 (E.D. Pa. 2007) (“Numerous
courts, including this Court, have granted motions to dismiss section 1983 actions because the
defendants were not state actors.”) (citations omitted). Based upon the factual allegations in the
amended complaint and drawing all reasonable inferences in favor of Papa, the court does not
perceive any plausible state involvement in the Neshannock VFD’s internal decision to terminate
Papa’s membership. Papa does not allege that the membership decision was based upon some
regulation, rule of conduct or policy put forth by Pennsylvania. Viewing the allegations of the
amended complaint and all reasonable inferences therefrom in the light most favorable to Papa,
her membership termination is not fairly attributable to the state. The § 1983 claims must be
dismissed.

The court concludes that Papa will not be granted leave to amend. Pro se plaintiffs
should be given an opportunity to file an amended complaint, even if they do not seek leave to
amend, unless amendment would be inequitable or futile. Phillips v. Cnty. of Allegheny, 515 F.3d
224, 245 (3d Cir. 2008). On the other hand, complaints that set forth facts which affirmatively
demonstrate there is no right to recover are properly dismissed without leave to amend. Dooley v.
Wetzel, 957 F.3d 366, 376 (3d Cir. 2020) (citing Grayson v. Mayview State Hospital, 293 F.3d
103, 106 (3d Cir. 2002)). Papa is represented by counsel and already amended her complaint
once, in response to defendants’ initial motion to dismiss. Papa did not seek leave to amend the
complaint again after defendants’ renewed motions to dismiss or the court’s show cause order
and did not point to any additional facts in her response. As explained above, the facts set forth

in the amended complaint affirmatively demonstrate that her § 1983 claims are not plausible. In
sum, the court concludes that amendment would be inequitable and futile.

B. Pendent State Law Claims
If a federal district court dismisses all claims over which it had original jurisdiction, the
court may decline to exercise supplemental jurisdiction over the remaining state law claims. 28
U.S.C. § 1367(c)(3). The decision to exercise supplemental jurisdiction is discretionary. Kach,
589 F.3d at 650. The decision should be based on “the values of judicial economy, convenience,
fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Ordinarily,
when all federal law claims have been dismissed, the balance of these factors weighs in favor of
resolving the remaining state law claims in the state court. Id.
The balance of factors in this case weighs heavily in favor of declining to exercise
jurisdiction over the remaining state law claims. In particular, the court notes that Papa

commenced this case in state court, the claims that provided the basis for removal jurisdiction are
now dismissed, and the litigation remains in its earliest stages.

Conclusion
Defendants’ motions to dismiss (ECF Nos. 12, 20) will be GRANTED in part. The § 1983
claims will be dismissed with prejudice. The court declines to exercise supplemental jurisdiction
over the pendent state law claims. The clerk shall REMAND this case FORTHWITH to the
Court of Common Pleas of Lawrence County, Pennsylvania.
An appropriate Order follows.
Dated: May 18, 2021 BY THE COURT:

s/ Joy Flowers Conti
Joy Flowers Conti
Senior United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10416567. Public record. Not legal advice.