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DUBLIN WATER CO. v. DELAWARE RIVER BASIN COMMN.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


December 28, 1977

DUBLIN WATER COMPANY
v.
DELAWARE RIVER BASIN COMMISSION, PENNSYLVANIA PUBLIC UTILITY COMMISSION, MAURICE K. GODDARD, Individually and as Secretary of the Department of Environmental Resources, Commonwealth of Pennsylvania, and TOWNSHIP OF UPPER DUBLIN

The opinion of the court was delivered by: BECHTLE

MEMORANDUM OPINION

 BECHTLE, J.

 Presently before the Court are the motions of defendants Delaware River Basin Commission ("DRBC") to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), and of Maurice K. Goddard ("Goddard"), individually and as Secretary of the Pennsylvania Department of Environmental Resources ("DER"), and Pennsylvania Public Utility Commission ("PPUC") to dismiss or, in the alternative, for summary judgment, pursuant to Fed.R.Civ.P. 12(b)(6) and 56, respectively. *fn1" Also before the Court are the motions of plaintiff Dublin Water Company ("DWC") for leave to amend its complaint pursuant to Fed.R.Civ.P. 15(a) and for an Order making defendant Township of Upper Dublin ("Dublin") an involuntary plaintiff pursuant to Fed.R.Civ.P. 19(a). *fn2" For the reasons stated below, we will grant the Fed.R.Civ.P. 56 motions for summary judgment of PPUC, DRBC and Goddard; we will deny DWC's Fed.R.Civ.P. 19(a) motion; we will dismiss the complaint as to Dublin; and, we will dismiss as moot DWC's motion to amend pursuant to Fed.R.Civ.P. 15(a). *fn3"

 On May 13, 1977, DWC filed a complaint seeking injunctive and other appropriate relief from the alleged irreparable harm inuring to it as a result of conflicting administrative mandates imposed upon it by PPUC, DRBC and Goddard. Dublin was named as a defendant for the sole purpose of making it an involuntary plaintiff pursuant to Fed.R.Civ.P. 19(a). This Court's jurisdiction is invoked pursuant to 28 U.S.C. § 1331, and the amount in controversy is alleged to exceed $10,000, exclusive of interest and costs.

 The allegations of DWC's complaint, construed in a light most favorable to DWC, and which are pertinent to this Opinion, are as follows: DWC is a public utility, authorized by the Pennsylvania Public Utility Law ("PUL"), Act of May 28, 1937, P.L. 1053, § 1, as amended 66 P.S. § 1101 et seq., to furnish water to the public. DRBC is a body politic and corporate which was formed by interstate compact between the States of New York, New Jersey, Pennsylvania and Delaware and which is comprised of the Governors of said states and of a commissioner appointed by the President of the United States. The Delaware River Basin Compact ("Compact"), which DRBC administers, has been codified as part of the law of the Commonwealth of Pennsylvania at 32 P.S. § 815.101 et seq. DRBC has regulatory authority over actions affecting the water resources of the Delaware River Basin by, inter alia public utilities in the Eastern District of Pennsylvania. § 3.1 Compact, 32 P.S. § 815.101. Defendant PPUC is an arm of the Legislature of the Commonwealth of Pennsylvania and has regulatory authority over public utilities in Pennsylvania. § 901 PUL, 66 P.S. § 1341. Pursuant to § 902 PUL, 66 P.S. § 1342, PPUC is obligated to enforce the duty, imposed upon public utilities in Pennsylvania by § 401 PUL, 66 P.S. § 1171, as amended 1976, to furnish and maintain to their patrons adequate, efficient, safe and reasonable services and facilities. Defendant Goddard, as an official of the Commonwealth of Pennsylvania, and in his capacity as Secretary of DER, has authority, inter alia, pursuant to 35 P.S. § 713, as amended by Act of April 9, 1929, P.L. 177, § 1901-A and Act of December 3, 1970, P.L. 834 § 20, 71 P.S. § 510.1, to grant or withhold permits to construct waterworks for the supply of water to the public. Goddard also serves as a deputy of the Governor of Pennsylvania in the Governor's capacity as a member of defendant DRBC.

 DWC began construction of a physical facility known as well number 5 ("the well") in 1968. The well was complete and ready for operation on or about March 1, 1976. DWC then filed applications with PPUC, DER and DRBC for permission to use and operate the well. PPUC granted DWC's application. DER also granted DWC's application, but conditioned issuance of a permit upon subsequent approval by DRBC. DRBC had begun administrative hearings on DWC's application at the time DWC filed this complaint.

 The essence of DWC's complaint is that PPUC's, Goddard's and DRBC's rulings upon DWC's respective applications have resulted in conflicting administrative mandates which, if enforced, will subject DWC to irreparable harm, the threat of sanctions and deprivation of property without due process of law, in violation of the Constitution of the United States. Specifically, DWC alleges that PPUC Application Dockets A.94952, *fn4" A.99303 *fn5" and C.20863, *fn6" which "enforce and confirm DWC's obligation to furnish adequate service to its patrons" and "recognize, approve and in effect direct the construction and operation of [the well]" (see Complaint, para. 7.14) conflict with DRBC's March 30, 1977, Resolution, *fn7" which DWC 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, *fn8" as well as a copy of a letter from DRBC to DWC dated May 3, 1977. *fn9" 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.]

 ORDER

 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.


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