claims enjoins it from use and operation of the well. In addition, DWC alleges that Goddard, by conditioning DER's approval of DWC's application upon subsequent approval by DRBC, acted outside the scope of his authority as Secretary of DER.
In support of their motions for summary judgment, PPUC and DRBC have submitted, and Goddard has adopted, inter alia, copies of PPUC Application Dockets A.94952, A.99303 and C.20863 and DRBC's Resolution of March 30, 1977,
as well as a copy of a letter from DRBC to DWC dated May 3, 1977.
It is clear from even a cursory reading of these exhibits that neither the PPUC Application Dockets nor the DRBC Resolution orders or compels DWC to do, or to refrain from doing, anything which could in any conceivable way subject DWC to conflicting administrative mandates, expose DWC to the threat of sanctions or deprive DWC of property without due process of law. Because neither PPUC, Goddard nor DRBC has acted in a manner which would in any way warrant this Court's imposing injunctive or other relief in favor of DWC, the motions of PPUC, Goddard and DRBC for summary judgment will be granted.
Alternatively, DWC alleges that Goddard acted outside the scope of his authority as Secretary of DER by conditioning DER's issuance of DWC's license upon subsequent approval by DRBC. In support of its motion for summary judgment, DRBC submitted, and Goddard adopted, inter alia, the affidavit of W. Brinton Whitall, Secretary of DRBC. Whitall's affidavit clearly establishes that, pursuant to § 3.8 of the Compact, DRBC has the power to approve all "projects having a substantial effect on the water resources of the Basin." Whitall's affidavit also establishes that, based upon administrative agreements executed between DER and DRBC pursuant to 18 C.F.R. § 401.33 et seq., DER makes an initial review of all water-related activities which are subject to DER regulations, but withholds issuance of its permits until DRBC has had an opportunity to determine whether the activities in question will have a substantial effect upon the Delaware River Basin (see Whitall Affidavit, para. 4-10; DRBC Exhibit 7). Because Whitall's affidavit meets defendant's burden of establishing that no genuine issue of material fact exists as to the scope of Goddard's authority to condition issuance of permits by DER upon subsequent approval by DRBC, and because DWC has not sufficiently rebutted defendant's proof, see Saaybe v. Penn Central Trans. Co., 438 F. Supp. 65, 68 (E.D.Pa. 1977), Goddard is entitled to have summary judgment entered in his favor on the issue of whether or not he exceeded the scope of his authority as Secretary of DER.
DWC also moves this Court, pursuant to Fed.R.Civ.P. 19(a), for an Order making Dublin an involuntary plaintiff. Fed.R.Civ.P. 19(a) states, in pertinent part:
(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. . . .
We find Fed.R.Civ.P. 19(a) inapplicable to the case before us. First, since Dublin is already a party defendant to this action, it is clear that neither 19(a)(1) nor (2) applies to this case. DWC argues, however, that Fed.R.Civ.P. 19(a)'s reference to "a proper case" permits a district court to order a party, already named as a defendant, to be realigned as an involuntary plaintiff.
It is well settled that the "proper case" provision of Fed.R.Civ.P. 19(a) may only be invoked where the party sought to be joined as an involuntary plaintiff is beyond the jurisdiction of the Court and is notified of the action but refuses to join, and where the party seeking such joinder is entitled to use the non-party's name to prosecute the action. Independent Wireless Telegraph Co. v. Radio Corporation of America, 269 U.S. 459, 70 L. Ed. 357, 46 S. Ct. 166 (1926); Caprio v. Wilson, 513 F.2d 837, 839 (9th Cir. 1975); Stanton v. Ash, 384 F. Supp. 625, 632 (S.D.Ind. 1974); Blacks v. Mosley Machinery Co., Inc., 57 F.R.D. 503, 505-506 (E.D.Pa. 1972); 7 Wright and Miller, Federal Practice and Procedure, § 1606 (Supp. 1976). If the non-party is within the jurisdiction of the Court, he must be served with process and made a defendant. Dublin is clearly within the jurisdiction of this Court and has been made a party defendant to this action. We hold that Fed.R.Civ.P. 19(a) is inapplicable to the case before us. DWC's motion pursuant to Fed.R.Civ.P. 19(a) will, therefore, be denied. We hold further that, because by DWC's own admission Dublin was joined as a defendant for the sole purpose of making it an involuntary plaintiff pursuant to Fed.R.Civ.P. 19(a), and because DWC states no independent claim against Dublin, the complaint will be dismissed as to Dublin.
Finally, DWC's motion for leave to amend its complaint pursuant to Fed.R.Civ.P. 15(a) will be dismissed as moot.
We question DWC's good faith in filing this complaint.
An appropriate Order will be entered. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 443 F. Supp.]
AND NOW, TO WIT, this 28th day of December, 1977, IT IS ORDERED as follows:
1. This Court's Order of October 31, 1977, is amended to read as follows:
The motions of Pennsylvania Public Utility Commission, Delaware River Basin Commission and Maurice K. Goddard, individually and as Secretary of the Department of Environmental Resources, Commonwealth of Pennsylvania, for summary judgment pursuant to Fed.R.Civ.P. 56 are hereby granted.
2. The motion of plaintiff Dublin Water Company to join defendant Township of Upper Dublin as an involuntary plaintiff, pursuant to Fed.R.Civ.P. 19(a), is hereby denied.
3. The complaint is dismissed as to defendant Township of Upper Dublin because of Dublin Water Company's failure to state a claim against the Township of Upper Dublin.
4. The motion of plaintiff Dublin Water Company for leave to amend its complaint, pursuant to Fed.R.Civ.P. 15(a), is hereby dismissed as moot.
LOUIS C. BECHTLE, J.