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HARRIS v. PERNSLEY

February 19, 1987

MARTIN HARRIS, ALBERT ANTHONY, ORLANDO X. McCREA, TYRONE GLENN, CARLOS ROYSTER, AMIN ABDULLAH, KHALID ALLAH MUHAMMAD, and ARNOLD FURTICK, CHARLES OAKES, EMANUEL GARDNER
v.
IRENE PERNSLEY, individually and in her official capacity as Commissioner of the Department of Human Services of the City of Philadelphia, ROYAL L. SIMS, REV. ALBERT CAMPBELL, LABORA BENNETT, JAMES BARBER, MARK MENDEL, DONALD PADOVA, each individually and in his or her official capacity as a member of the Board of Trustees of the Philadelphia Prison System, DAVID S. OWENS, individually and in his official capacity as Superintendent of the Philadelphia Prison System, GUETON CURIONE, individually and in his official capacity as Warden of Holmesburg Prison, PHILLIP DUKES, individually and in his official capacity as Wrden of the Detention Center, JOHN DAUGHEN, individually and in his official capacity as Warden of the House of Corrections, RODNEY D. JOHNSON, individually, LEO C. BROOKS, individually, JAMES S. WHITE, individually and in his official capacity as Managing Director of the City of Philadelphia, WILLIAM J. GREEN, individually, HON. WILSON GOODE, individually and in his official capacity as Mayor of the City of Philadelphia, CITY OF PHILADELPHIA, JAY C. WALDMAN, individually and in his official capacity as General Counsel for the Commonwealth of Pennsylvania, RONALD J. MARKS, individually, GLEN JEFFES, individually and in his official capacity as Commissioner of the Pennsylvania Department of Corrections



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 On December 31, 1986, this court entered orders denying the motion to intervene of the District Attorney of Philadelphia County, Ronald D. Castille, 113 F. Supp. 615 and approving a settlement between the City defendants *fn1" and the plaintiff-prisoner class. Presently before the court is the District Attorney's motion to stay implementation of the settlement agreement to which the District Attorney is not a party, pending appeal of this court's denial of his motion to intervene as a party defendant and oppose entry of the consent order approving plaintiffs' settlement with some but not all the defendants. For the reasons now stated, the motion for a stay delaying the phased implementation of the consent order until the District Attorney's appeal is decided is denied.

 This civil rights class action concerning conditions of confinement in City of Philadelphia penal institutions was instituted pursuant to 42 U.S.C.A. ยง 1983 (West 1981) by ten inmates of Holmesburg Prison in April, 1982. *fn2" On August 19, 1986, the District Attorney moved to intervene as a party defendant. After written submissions by the District Attorney, the plaintiff-prisoner class and the City defendants, a lengthy evidentiary hearing and oral argument, the court denied the District Attorney's motion to intervene on December 31, 1986. The court subsequently entered a consent order that same date. In that Order, the court approved the settlement between the plaintiff-prisoner class and the City defendants in accordance with Fed.R.Civ.P. 23(e). All claims against the City defendants were dismissed with prejudice. In addition, pursuant to Fed.R.Civ.P. 41(a)(1), the court dismissed all claims against defendants Marks and Jeffes without prejudice. The action proceeds against defendant Waldman only because Waldman has refused to agree to his dismissal without prejudice; plaintiff's class counsel is presently precluded by a conflict of interest from pursuing this matter. Until plaintiff's class representative obtains new counsel, this matter cannot be closed.

 On January 8, 1987, the District Attorney filed a notice of appeal of the order denying his motion to intervene and the consent order approving the settlement agreement. On January 14, 1987, pursuant to Fed.R.Civ.P. 62(c), the District Attorney applied to this court for a stay of the consent order pending appeal. On January 29, 1987, the City defendants and the plaintiff-prisoner class filed responses opposing the motion for stay.

 Rule 62(c) provides inter alia :

 Fed.R.Civ.P. 62(c).

 "A request for stay is addressed to the sound discretion of the court." First Amendment Coalition v. Judicial Inquiry and Review Board, 584 F. Supp. 635, 637 (E.D.Pa. 1984) (Pollak, J.), vacated and remanded on other grounds, 784 F.2d 467 (3d Cir. 1986) (quoting Evans v. Buchanan, 424 F. Supp. 875, 879-80 (D. Del. 1976), aff'd as modified, 555 F.2d 373 (3d Cir.), cert. denied, 434 U.S. 880, 54 L. Ed. 2d 160, 98 S. Ct. 236 (1977) (citing Coppedge v. Franklin County Board of Education, 293 F. Supp. 356, 362 (E.D.N.C. 1968); Hobson v. Hansen, 44 F.R.D. 18, 21 (D.D.C. 1968), aff'd in part and rev'd in part, 132 U.S. App. D.C. 372, 408 F.2d 175 (D.C. Cir. 1969)). In exercising its discretion, the court must balance the equities and determine whether the movant has shown that (1) he will likely prevail on the merits of the appeal, (2) he will suffer irreparable injury if the stay is denied, (3) other parties will not be substantially harmed by the stay, and (4) the public interest will be served by granting the stay. See First Amendment, 584 F. Supp. at 636 (quoting Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970); see also Halderman v. Pennhurst State School & Hospital, 451 F. Supp. 233, 235 (E.D. Pa. 1978); Philadelphia Counsel of Neighborhood Organizations v. Adams, 451 F. Supp. 114 (E.D. Pa. 1978); Resident Advisory Board v. Rizzo, 429 F. Supp. 222, 224 (E.D. Pa. 1977). The inquiry in determining a motion for stay pending appeal is similar to that in determining a motion for grant of preliminary injunctive relief. See Pennhurst, 451 F. Supp. at 235; Evans, 424 F. Supp. at 878. Therefore, while these four "factors structure the inquiry . . . no one aspect will determine its outcome. Rather, proper judgment entails a delicate balancing of all elements." Constructors Assoc. of Western Pa. v. Kreps, 573 F.2d 811, 835 (3d Cir. 1978) (factors relevant to grant of preliminary injunction). These four factors must be examined to guide the court in the exercise of its discretion in this civil rights class action.

 1. Likelihood of Success

 Because the District Attorney is requesting a stay of the consent order itself until his right to intervene and oppose it is determined, in deciding whether to grant a stay, the court must determine the likelihood of the District Attorney's success not only on his motion to intervene but on his appeal in opposition to the consent order of the motion to intervene is resolved in his favor.

 An Order denying a motion to intervene is a final appealable order. E.g., McKay v. Heyison, 614 F.2d 899, 903 (3d Cir. 1980); McClune v. Shamah, 593 F.2d 482, 485 (3d Cir. 1979); Commonwealth v. Rizzo, 530 F.2d 501, 504 (3d Cir. 1976), cert. denied, 426 U.S. 921, 96 S. Ct. 2628, 49 L. Ed. 2d 375 (quoting Philadelphia Electric Co. v. Westinghouse Electric Corp., 308 F.2d 856, 859 (3d Cir. 1962), cert. denied, 372 U.S. 936, 9 L. Ed. 2d 767, 83 S. Ct. 883 (1963)). An appeal may be "taken from both aspects of an order denying intervention where it is claimed that the applicant had an absolute right to intervene, and, alternatively, that the district court abused its discretion in denying permissive intervention." McClune, 593 F.2d at 485 (citing Philadelphia Electric, 308 F.2d at 959)). Therefore, the District Attorney may appeal the Order denying his motion to intervene.

 However, the court believes that the District Attorney is unlikely to succeed on the merits even though it is difficult for a district court to consider the likelihood of an appellant's success on appeal. This consideration necessitates a prediction whether the district court was in error. It would be highly unusual for a district court judge to come to this conclusion immediately after a decision on the merits because the decision itself represents the judge's reasoned decision as to what was legally correct. The court believes that the inquiry must be modified in accordance with the view of Judge Pollak expressed in First Amendment. In granting a stay pending appeal where the law was unsettled, he stated,

 
If the question is whether I think that the balance of probability is that I was wrong and that my order will be set aside on appeal, that is not my view. If that were my assessment ...

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