The opinion of the court was delivered by: BRODERICK
In an opinion filed on December 23, 1977, 446 F. Supp. 1295, this Court held that the constitutional and statutory rights of the retarded at Pennhurst State School and Hospital ("Pennhurst") had been and are being violated. As set forth in our memorandum of March 17, 1978, which accompanied the Court's Order in this case, some of the determinations made by the Court in its opinion were:
1. That when a state institutionalizes individuals because they are retarded, the United States Constitution (Eighth and Fourteenth Amendments) and the laws of Pennsylvania (50 P.S. §§ 4101 et seq.) require the state to provide such minimally adequate habilitation as will afford a reasonable opportunity for them to acquire and maintain such life skills as are necessary to enable them to cope as effectively as their capacities permit.
2. That the Rehabilitation Act of 1973, 29 U.S.C. § 794, grants rights to the retarded residents of Pennhurst, which rights have been and are being violated.
3. That the retarded at Pennhurst are not receiving minimally adequate habilitation and that such minimally adequate habilitation cannot be provided at Pennhurst because it does not provide an atmosphere conducive to normalization, which all the experts agree is vital to the minimally adequate habilitation of the retarded.
Based upon these and other determinations, this Court ordered appropriate injunctive relief. Commonwealth defendants and Bucks, Chester, Delaware, Montgomery and Philadelphia Counties have filed notices of appeal from the Court's judgment. The Commonwealth now seeks a stay of the judgment order pending a determination of its appeal by the Third Circuit.
On April 13, 1978, a hearing was held in connection with the Commonwealth's motion to stay the judgment and, for the reasons hereinafter set forth, the motion will be denied.
Fed.R.Civ.P. 62(c) provides in pertinent part that:
When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
It is well settled by the case law that a party seeking the stay of a judgment order must show (1) that it will likely prevail on the merits of the appeal, (2) that it 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. Philadelphia Council of Neighborhood Organizations v. Adams, 451 F. Supp. 114, slip op. at 2 (E.D. Pa. 1978); 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 motion requesting a stay of a judgment order is addressed to the discretion of the court. The Third Circuit has recently stated that in considering the four-prong test enumerated above, 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, slip op. at 7 (3d Cir. 1978). See, Evans v. Buchanan, 424 ...