bidder would have been awarded the contract.
Following the October 11, 1985 award of the general construction contract to White, Carney's counsel advised the Board of Education's general counsel twelve days later that he anticipated filing a lawsuit. This, however, could not have been a surprise to the general counsel who advised the Board of Education on October 11, 1985 that there might be a challenge to an award which rejected lower bids in favor of a higher bid. After retaining new counsel, Carney and the two other plaintiffs filed this action on November 12, 1985. The month and day between the award of the contract to White and the institution of this action can scarcely be characterized as a delay, let alone an inexcusable one.
The Court also notes that the prejudice which the defendants allege they will suffer is not related to the plaintiff's "delay" in bringing this action, but to the delay in the completion of the Edison project and the possibility that the project's cost would increase if the Court granted the plaintiffs' motion for a preliminary injunction. Thus, the prejudice which the defendants claim they will suffer would occur regardless of when the plaintiffs initiated their lawsuit. Delay in the project's completion and an increase in the project's cost are relevant factors in determining whether there is a possibility of harm to the public if the Court issued a preliminary injunction. See Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811, 820 (3d Cir. 1978); American District Telegraph v. Department of Energy, 555 F. Supp. 1244, 1251 (D.D.C. 1983). The Court, however, does not believe such factors are relevant in determining whether or not laches should bar an action because they are unrelated to the "delay" in bringing the lawsuit.
The length of delay in initiating an action will not mandate the applicability of laches. The Court notes that even if it had adopted the defendant's position that the plaintiffs waited three months to initiate their action, this delay is not of the same magnitude as the five month, nine month, thirteen month, and period of years that the plaintiffs delayed in initiating their actions in the cases cited by the defendants as support for the application of laches in this action. See Circus Playhouse, Inc. v. Circus Towne Pizza, No. 84-1641 (E.D.Pa. October 9, 1984); Mansfield Area Citizens Group, 413 F. Supp. 810 (M.D. Pa. 1976); Larrecq v. Van Orden, 21 Pa. Commonwealth Ct. 623, 346 A.2d 922 (1975); Martin v. Adams County Area Vocational Technical School Authority, 11 Pa. Commonwealth Ct. 292, 313 A. 2d 785 (1973).
B. Unclean Hands
The defendants claim that this Court should not grant the injunctive relief sought by the plaintiffs because of the alleged unclean hands of Carney and Anastasi. In support of their claim, the defendants note that Anastasi has previously secured subcontracts on other public works projects by engaging in joint ventures with minority and women-owned businesses; that Anastasi is presently engaged in three such joint ventures; that Anastasi offered to engage in such a joint venture on the Edison project when it discussed subcontracting the project with White; and that Carney had previously sought to enjoin the award of a contract to a low bidder on the grounds that although its bid was higher than the bid that was awarded the contract, it was the lowest to meet the affirmative action requirement which was part of the bid specifications.
A successful unclean hands defense to an injunction proceeding requires a showing by the defendants that plaintiffs' conduct is inequitable and that it involves the subject matter of the plaintiffs' claim. Ciba-Geigy Corp. v. Bolar Pharmaceutical Co., Inc., 747 F.2d 844, 855 (3d Cir. 1984). In declining to hear a case because of the unclean hands of the plaintiff, a court acts out of concern for its own integrity. See Gaudiosi v. Mellon, 269 F.2d 873, 881-882 (3d Cir. 1959). Normally, it is only when the plaintiffs' improper conduct is the source, or part of the source, of their equitable claim, that they are barred because of their conduct.
As the court recognized in Republic Molding Corp. v. B.W. Photo Utilities, 319 F.2d 347, 349 (9th Cir. 1963),
What does seem clear is that misconduct in the abstract, unrelated to the claim to which it is asserted as a defense, does not constitute unclean hands. The concept invoking the denial of relief is not intended to serve as punishment for extraneous transgressions, but instead is based upon "considerations that make for the advancement of right and justice." Keystone Driller Company v. General Excavator Company (1933), 290 U.S. 240, 245, 54 S. Ct. 146, 147, 78 L. Ed. 293.