The opinion of the court was delivered by: CALDWELL
The Health Care Alliance (Alliance), a charitable and educational corporation dedicated to aiding the public as consumers of health care services, has moved to intervene as a plaintiff in this action. The original plaintiffs, five health care providers, filed suit to challenge Pennsylvania legislation allowing defendant, Pennsylvania State University (PSU), to by-pass national and state laws which would normally have required PSU to obtain a certificate of need before starting new construction at the Hershey Medical Center. PSU and the other defendants, Richard L. Thornburgh, the Governor of Pennsylvania, and Walter Baran, Secretary of General Services, oppose the motion. For the reasons set forth below, we deny the request to intervene.
A. Intervention As Of Right.
Fed. R. Civ. P. 24(a)(2) provides that a person may intervene in an action:
when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
In Pennsylvania v. Rizzo, 530 F.2d 501, 504 (3d Cir.), cert. denied sub nom. Fire Officers Union v. Pennsylvania, 426 U.S. 921, 96 S. Ct. 2628, 49 L. Ed. 2d 375 (1976), the Third Circuit Court of Appeals stated the rule as follows:
Without deciding the issue of standing, we can concede that the Alliance, as a representative of health care consumers, has an interest in this case since additional hospital construction without a showing of need may have an impact upon health care costs. With regard to the second consideration, however, we are not convinced that the Alliance's interests would not be adequately represented by the existing plaintiffs. The intervenor's proposed complaint, by its own admission, raises the same claims as the plaintiff health care providers. The only exception is the failure to allege the breach of contract claim made by the providers in count VII of their complaint. Hence, the intervenor's have not satisfied the second part of the test.
We find no merit in the intervenor's contention that its interests are different from the plaintiffs' because the plaintiffs are health care providers and the intervenor represents consumers. It is sufficient for the purposes of this lawsuit that their interests coincide. The providers and the intervenors have the same goal here -- to require PSU to obtain a certificate of need before commencing construction at the Hershey Medical Center. In Hoots v. Pennsylvania, 672 F.2d 1133 (3d Cir. 1982), Save Our Schools (SOS), an unincorporated association composed of property owners, tried to intervene in a ten year old lawsuit involving the restructuring of school district boundaries when the former school district tried to return to the taxpayers funds that had been collected for the districts. The district court refused intervention because it found that the interests of SOS were adequately represented by the Churchill School District, one of the districts involved in the restructuring. On appeal, the court of appeals rejected SOS's contention that its interests were not identical to the school districts. It stated as follows:
Churchill's desired goal is precisely that of SOS: to effectuate a refund of taxes. There is no dissimilarity of interests on the refund issue. The Churchill School Board, when active, admittedly tempered its obligations to the pocketbooks of taxpayers with its obligations to the general public -- especially school children and their parents, and therefore no identity of interest could have been exhibited between Churchill and SOS at that time. But since the court ordered merger, Churchill's only remaining motive is to maximize the taxpayers' refund. For all purposes relevant to the issues presented in this appeal, Churchill represents the taxpayers in the former school district. There are no differences in interest between Churchill and SOS at this stage of the proceedings.
Id. at 1135 (footnote omitted).
The court went on to note that "differences may develop, if Churchill decides not to appeal an adverse decision. In that event, SOS may renew its motions to intervene for purposes of appeal." Id. n.3 (brackets added). Similar circumstances are present here and the intervenor has failed to ...