(D.C. Civil Action No. 71-453) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before: HUNTER*fn* and WEIS, Circuit Judges and SCALERA, District Judge.
Whether the Civil Rights Act was violated when an electric utility shut off service to its customer is the issue to be decided in this case.
The defendant is a privately owned and operated Pennsylvania corporation, granted a monopoly to deliver electricity to the populace in the area of York, Pennsylvania. Like similar utilities in Pennsylvania, it is subject to the provisions of the Public Utility Code*fn1 and the regulations of the Public Utility Commission authorized by the Act.
The plaintiff was a residential customer of the Metropolitan Edison Company and in October of 1971 was claimed to have owed the defendant for past due bills. She disputed the validity of the charges, asserting that a former co-occupant of the premises was responsible for the amount due. Despite several tenders by the plaintiff of partial payments, the defendant terminated service on October 11, 1971 by disconnecting the line on the company's utility pole on the street near the plaintiff's house. The plaintiff then filed suit under the Civil Rights Act, 43 U.S.C. § 1983,*fn2 asking both damages and injunctive relief.
The district court held an evidentiary hearing on the request for a preliminary injunction. The plaintiff testified that on an occasion about a year previously when the electricity had been disconnected, she left her home for about 45 minutes to telephone the utility and when she returned, the power had been restored. She admitted not receiving bills in the ensuing year but claimed that one Dodson, the co-occupant of the house, had received and paid monthly statements from the defendant.
Although Dodson left the premises about August, 1971, the plaintiff admitted that no bills were received at her home thereafter. She testified that on October 6, 1971 a representative of Metropolitan came to the house inquiring about Dodson and on the following day another employee looked at the meter and told her that somebody had tampered with it. The plaintiff then asked that service be reinstated in the name of Robert Jackson. At the hearing she admitted that this was in fact her 12 year old son.
At the conclusion of the plaintiff's testimony and after the filing of briefs, the district court dismissed the case because there was not "a sufficient showing of state involvement in the complained of activity..."*fn3
The plaintiff asserts that the defendant's action in arbitrarily terminating service to her was under color of state law because:
1. As a utility, the defendant was closely regulated by the Commonwealth of Pennsylvania;
2. In supplying electricity, Metropolitan Edison was performing a governmental function;
3. The defendant was either acting as an agent for the state or a joint participant with it; and
4. The failure to act by the state amounted to "state action".
Litigation between utilities and their customers based on § 1983 has been the subject of decisions in the Courts of Appeals of the Eighth, Seventh, and Sixth Circuits, as well as a number of district courts. While on the facts the situations in the reported cases are capable of distinction, an objective appraisal might suggest that the differing results represent a continued uncertainty as to the application of the "color of state law" test.
The Supreme Court has frankly admitted the difficulty of drawing guidelines, and in Moose Lodge 107 v. Irvis, 407 U.S. 163, 172, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972), Justice Rehnquist wrote:
"While the principle is easily stated, the question of whether particular discriminatory conduct is private, on the one hand, or amounts to 'State action' on the other hand, frequently admits of no easy answer. 'Only by sifting facts and weighing circumstances can the nonobvious involvement of the state in private conduct be attributed its true significance.'"
While the Moose case was concerned with a private club rather than a utility, the following quote is helpful:
"The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever. Since the state-furnished services include such necessities of life as electricity, water, and police and fire protection, such a holding would utterly emasculate the distinction between private as distinguished from State conduct set forth in the Civil Rights Cases, supra, and adhered to in subsequent decisions."
The Supreme Court went on to discuss the multiform variety of control that the state exercised over the holder of a liquor license which the district court had described as "pervasive" and went on to say:
"However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a ...