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NORTHERN PENNA. LEGAL SERVS. v. COUNTY OF LACKAWAN

April 13, 1981

NORTHERN PENNA. LEGAL SERVICES, INC., Eugene F. Smith, O. Randolph Bragg, Ira Mark Goldberg, Sylvia H. Hahn, Eugene J. Doud, J. Palmer Lockard, Ben Josielevski, Sally F. O'Brien, and Patricia W. Jezerski, Plaintiffs,
v.
COUNTY OF LACKAWANNA; Charles Luger, Robert Pettinato, and Chester Lasota, individually and in their official capacity as Commissioners of Lackawanna County; Andrew M. Wallace, individually and in his official capacity as Administrative Director of Lackawanna County, Defendants



The opinion of the court was delivered by: NEALON

This case comes before the court on a motion by the plaintiffs for a preliminary injunction. There are ten plaintiffs, viz., Northern Pennsylvania Legal Services, Inc. ("NPLS") and nine of its staff attorneys. The defendants are Lackawanna County; its three Commissioners, Charles Luger, Robert Pettinato, and Chester Lasota; and Andrew M. Wallace, the County's Administrative Director. The complainants seek relief on the basis of several constitutional theories. Subject matter jurisdiction rests on 42 U.S.C. §§ 1983 and 1985 and 28 U.S.C. § 1343. There is also a pendent state claim premised on breach of contract.

NPLS is a nonprofit corporation created to provide legal services to eligible indigents. The organization functions under regulations promulgated by The Legal Services Corporation and The Pennsylvania Legal Services Corporation ("PLSC"), which were respectively founded by Congress and the Commonwealth. In this capacity NPLS represents poor persons in a wide variety of matters. The instant action, nevertheless, arose out of the institution's work in connection with juveniles.

 Pennsylvania law requires all counties to provide indigent minors with counsel in court suits conducted to determine delinquency or dependency. 42 Pa.C.S.A. § 6337. NPLS began handling such cases during the 1960's. In 1977, PLSC informed the plaintiff-corporation that according to applicable regulations a legal services organization normally could not represent litigants who had a statutory right to have counsel furnished by county government. However, an exception to this rule existed. Legal aid lawyers could appear on behalf of such individuals if the relevant county provided funding. The Lackawanna authorities evidently desired that NPLS continue its work in juvenile matters. In 1978, the Commissioners adopted a resolution authorizing a contract in which the plaintiff-corporation agreed to represent all alleged delinquents in the County for one year in exchange for $ 6,000.00. The parties never signed a written document to this effect. Nevertheless, the arrangement was carried out. Similar enactments were adopted in succeeding years. The resolution presently in effect, which was passed on December 9, 1980, sets NPLS's compensation during 1981 at $ 9,000.00. A parallel agreement exists in the area of juvenile dependency. In December 1980, the Commissioners enacted a resolution permitting a payment of $ 12,000.00 for such representation. *fn1"

 Over the years, County compensation for juvenile work has proved quite important to the plaintiff-corporation. Under Title XX of the Social Security Act and other laws applicable to legal aid organizations, NPLS was able to "match" the Lackawanna payments against other state and federal monies in order to receive a yield of 250% over the original sum. In 1981, for example, the plaintiff-corporation could expect to receive $ 52,500 as a result of this match. *fn2" The increased yield provided more than enough compensation for the NPLS to handle delinquency and dependency litigation in the County. The excess reserve was placed in the institution's operating budget and, thus, went to finance the representation of indigents in other matters. In previous years, the plaintiff-corporation has expanded both its staff and the scope of its activities in reliance upon the funds anticipated from the match.

 On March 19, 1981, defendant Wallace mailed a letter to plaintiff Smith, director of the NPLS, which stated:

 
Dear Attorney Smith:
 
Since it has become very apparent that the County of Lackawanna and the Northern Pennsylvania Legal Services, Inc. must maintain an adversary position, we feel it appropriate to terminate our present relationship with your agency.
 
Please accept this Letter as an intention on the part of Lackawanna County to cancel all outstanding agreements with Northern Pennsylvania Legal Services, Inc. effective March 31, 1981.

 This action could have disastrous consequences for NPLS. Mr. Smith testified that the loss of revenue caused by the termination would immediately require the dismissal of two lawyers and one secretary from the staff. Plaintiff Goldberg, the Managing Attorney at the Scranton office, agreed that this loss of personnel would throw the corporation's caseload into "utter chaos" and possibly preclude representation of any new indigent clients. NPLS brought the present suit to prevent these events from taking place. The motivation behind the termination, of course, is central to resolution of the case.

 NPLS has recently been involved in litigation concerning the defendants. NPLS has filed a suit on behalf of certain prisoners challenging alleged constitutional violations at the Lackawanna County Prison. Williams v. Lackawanna County Prison, Civil No. 81-0106 (M.D.Pa., filed January 21, 1981). In February of this year, moreover, a NPLS attorney won a case in the Pennsylvania Supreme Court reversing a decision by the Court of Common Pleas to terminate the parental rights of certain indigents. The opinion severely criticized the Lackawanna County Bureau of Children's Services. In re Adoption of M. M., 492 Pa. 457, 424 A.2d 1280 (Pa.Sup.Ct.1981). Throughout this litigation, the plaintiffs have maintained that the defendants repudiated the delinquency and dependency arrangements in retaliation for NPLS's participation in such litigation.

 During the hearing on the instant action, Mr. Smith testified that Commissioner Luger informed him on several occasions that the termination was in response to the Williams and M. M. suits. This assertion is unrebutted. At least for the purpose of the instant motion, the court shall accept the plaintiffs' version of the cessation as correct. See Fed.R.Civ.P. 65(a)(2). The record justifies no other conclusion. *fn3"

 In assessing a request for a preliminary injunction, a trial court must weigh four factors: (1) the likelihood that the complainants will prevail on the merits, (2) the possibility that the plaintiffs will suffer irreparable harm in the absence of an injunction, (3) the chances that favorable action on the motion will harm other interested parties, and (4) the public interest. Commonwealth of Pennsylvania ex rel. Creamer v. United States Department of Agriculture, 469 F.2d 1387, 1388 n.1, (3d Cir. 1972). See also Wright & Miller, Federal Practice and Procedure : Civil § 2948 (1973). Each of these items shall be assessed individually. Analysis indicates that the motion should be granted.

 II. REASONABLE LIKELIHOOD OF SUCCESS

 The complainants need not prove that all of their claims are potentially meritorious in order to satisfy the first requirement for a preliminary injunction. On the contrary, they may carry their burden by simply demonstrating there is a reasonable likelihood that they will ultimately win the relief they seek. Tenants for Justice v. Hills, 413 F. Supp. 389, 391 (E.D.Pa.1975). A review of the evidence indicates that three of the arguments offered by the plaintiffs establish such a likelihood. Two of these contentions are constitutional: freedom of expression ...


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