The opinion of the court was delivered by: HIGGINBOTHAM
Alexander D. Ricci, plaintiff herein, has brought suit against the Pennsylvania State Board of Law Examiners, alleging that Rule 9 A(2) of the Supreme Court of Pennsylvania,
as interpreted by the Board, is violative of the Fourteenth Amendment to the federal Constitution in that it purportedly denies the plaintiff due process and equal protection of the laws. The plaintiff has invoked this Court's jurisdiction pursuant to 28 U.S.C. §§ 2201, 2202, 2281, and 2284.
Presently before the Court are the defendant State Board's motion for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure and the plaintiff's counter motion for summary judgment. Plaintiff further requests that if the motions for summary judgment are denied, this Court rules that this case be considered by a three-judge court pursuant to 28 U.S.C. § 2281.
There is no dispute as to the facts which have given rise to this litigation. The parties have stipulated that the plaintiff, Mr. Ricci, has been a member in good standing of the Bar of the District of Columbia since September, 1965 and that he has been a resident of Trevose, Pennsylvania since March, 1968, where he has been employed as an attorney with Betz Laboratories.
And, it is admitted by the defendants that but for the requirements of Rule 9A (2), Mr. Ricci is qualified to be admitted to practice before the Supreme Court of Pennsylvania.
Plaintiff challenges the State Board of Law Examiners' interpretation of the phrase "within this state" which appears in Rule 9 A(2), contending that he falls within the scope of the Rule by virtue of his District of Columbia practice; Mr. Ricci has appeared before various federal agencies in Washington, D.C. on the average of 30 non-consecutive days per year since 1968.
Plaintiff further asserts that if he does not come within the ambit of Rule 9 A(2), the Rule violates 42 U.S.C. § 1983 and three provisions of the Constitution: the full-faith and credit clause; the privileges and immunities clause; and the due process and equal protection clauses of the Fourteenth Amendment.
On behalf of the defendants' motion, it has been argued that summary judgment pursuant to Rule 12(h)(2) of the Federal Rules of Civil Procedure is appropriate because the plaintiff failed to join as indispensable parties defendant either the Supreme Court of Pennsylvania or its justices. The defendants further argue that no constitutional or statutory right of the plaintiff has been violated by Rule 9. And, moreover, defendants claim that plaintiff's complaint fails to state a cause of action for which relief can be granted under § 1983 because the State Board is not a "person" within the meaning of that statute.
Two routes are available to an attorney who seeks admission to the Pennsylvania Bar. The attorney can take the written bar examination. Or, the attorney can request that the State Board of Law Examiners recommend to the Supreme Court of Pennsylvania that the applicant be exempted from the written examination, provided he (or she) can demonstrate that he meets the requirements of Rule 9 A and either section (1), (2) or (3). In the instant litigation, Mr. Ricci sought exemption from the written examination pursuant to Section (2), claiming that he had practiced law outside of Pennsylvania for 5 years.
Mr. Ricci made two applications to the State Board for such an exemption. After determining that the plaintiff . . . "clearly had not practiced law outside of Pennsylvania for at least 5 years as required by the Rules of the Supreme Court governing admission to the bar . . ." [Plaintiff's Memorandum in Support of Plaintiff's Motion for Summary Judgment at page 6], the State Board refused to recommend plaintiff each time plaintiff applied. Plaintiff entered an appeal before the Pennsylvania Supreme Court pursuant to Rule 14(b); the Court denied each appeal without opinion.
A quick perusal of the Bar Admissions procedure and the facts of this case reveal that the plaintiff has failed to join the Supreme Court of Pennsylvania (or its Justices) as a necessary and indispensable party under Rule 19(a) of the Federal Rules of Civil Procedure. The Pennsylvania Constitution grants the Supreme Court the responsibility to promulgate rules governing bar admissions. In Supreme Court Rule 7 the Supreme Court vests the State Board of Law Examiners with the responsibility of enforcing the Court's rules concerning registration and admissions to the bar; the State Board is answerable to the Supreme Court of Pennsylvania.
The Supreme Court has delegated to the State Board the preliminary screening function as the Board is authorized to issue a certificate recommending admission to the bar to each applicant it has found to be fit and generally qualified under the Supreme Court's rules. Yet no person can be admitted unless the Supreme Court, upon motion of a member of the bar and submission of the certificate from the Board, grants admission.
Defendants correctly argue that in this case the ultimate goal of the plaintiff is to secure admission to the bar, a goal which, as already indicated, cannot be achieved solely by suing the State Board; this is particularly true where the Supreme Court has on two occasions affirmed the Board's determination that the plaintiff is not qualified under Rule 9A(2). Thus, the Supreme Court is an indispensable party; the decree sought by the plaintiff will require the Court to take action, either directly or indirectly, as the State Board is only an administrative aide to the court. Muerer v. Ryder, 137 F. Supp. 362 (E.D.Pa. 1955); Feldman v. State Board of Law Examiners, 438 F.2d 699, 702 (9th Cir. 1971). See also Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L. Ed. 158 (1854); 3 A Moore's Federal Practice para. 19.07  at 2219 (1974). The State Board of Law Examiners, which lacks authority to promulgate or change rules governing admission to the bar, is not an appropriate party to this suit. Hackin v. Lockwood, 361 F.2d 499 (9th Cir. 1966).
Defendant urges that this motion for summary judgment be granted because of plaintiff's failure to join the Supreme Court. However, the Third Circuit has ruled that summary judgment is inappropriate in this instance. If a district court is unable to rationally proceed because of the lack of an indispensable party, an order of dismissal, rather than summary judgment, should be entered as summary judgment goes to the merits operating in bar of the cause of action, not in abatement. ...