The opinion of the court was delivered by: BRODERICK
Plaintiffs brought this action to enjoin the defendants from funding, constructing or in any way proceeding with the construction of the Center City Commuter Rail Connection ("tunnel") connecting the existing Penn Central Suburban Station with a new underground station to be constructed between 10th, 12th, Market and Filbert Streets in Philadelphia, Pennsylvania. In an Opinion filed September 12, 1977, this Court granted defendants' motion for summary judgment, and entered judgment in their favor. Plaintiffs filed a notice of appeal from that judgment on October 25, 1977, their brief was filed with the Court of Appeals on February 24, 1978, and defendants' brief was filed on March 27, 1978. Although no date has been set for the argument, the Court of Appeals has agreed to list the case for disposition on the merits at its earliest convenience. Philadelphia Council of Neighborhood Organizations v. Coleman, No. 77-2515 (3d Cir., filed April 7, 1978).
It was not until March 20, 1978 that the plaintiffs filed the motion presently before the Court. They seek an injunction pursuant to Fed.R.Civ.P. 62(c) to enjoin the City of Philadelphia from awarding any construction contracts in connection with the tunnel and the Department of Transportation from approving said contracts pending a determination of the appeal pending before the Court of Appeals. A hearing was held in connection with plaintiffs' motion on March 28, 1978, and, for the reasons hereinafter set forth, the motion will be denied.
Fed.R.Civ.P. 62(c) provides that:
It is well settled by the case law that the party seeking the stay must show (1) that he will likely prevail on the merits of the appeal,
(2) that he will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay. Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970); Resident Advisory Board v. Rizzo, 429 F. Supp. 222, 224 (E.D. Pa. 1977). A request for a stay is addressed to the discretion of the court. In connection therewith, the Third Circuit has recently stated that in considering a similar four-prong test in determining whether to grant a preliminary injunction, the district court should realize that
these [four] factors structure the inquiry, however, no one aspect will necessarily determine its outcome. Rather, proper judgment entails a "delicate balancing" of all elements.
Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811, 815 (3d Cir., 1978). See, Evans v. Buchanan, 424 F. Supp. 875, 879 (D.Del. 1976).
1. Likelihood of Success on Appeal
Although Petitioners are not seeking this Court to reconsider its decision or to determine that Petitioners will with a certainty prevail, they believe this Court recognizes that the legal issues presented and determined by it are sufficiently novel and complex that a contrary decision by the appellate court would not be contrary to settled law and that the issues merit an appeal.
The mere fact that an appeal is not frivolous does not satisfy the first criteria for a stay, i.e., that there is a likelihood of success on appeal. In granting judgment for the defendants we considered each and every allegation of the plaintiffs in their 61 page complaint. The Court found that the decision of the Secretary of Transportation in providing a $240,000,000 grant of federal funds to the City of Philadelphia for the construction of the tunnel did not violate any statutory or constitutional provision. On the basis of our searching and careful review of the administrative record in this case, which contained thousands of pages, we found that the Secretary's decision was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Furthermore, the conclusions reached by this Court are ...