to the defendant's deposition testimony of Dr. Lubahn because the Referee and the defendant did not give the plaintiff notice that such testimony was on the record. In sum, although the defendant did not meet its burden of proving that a supersedeas should be granted, the referee erroneously granted it.
Nonetheless, Erie's conduct in this case cannot be regarded as contumacious because Erie proceeded in good faith in its effort to secure a supersedeas against the plaintiff. The plaintiff urges that this court may not consider Erie's alleged "good faith" in deciding whether to hold Erie in contempt. According to plaintiff, a violation of the Consent Decree is alone sufficient justification for holding a party in contempt. See Plaintiffs' Brief in Support of Their Motion for Civil Contempt, at p. 10 (citing McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 93 L. Ed. 599, 69 S. Ct. 497 (1949) ("An act does not cease to be a violation of . . . a decree merely because it may have been done innocently.")). The authority plaintiff cites in support of this proposition is not relevant to the circumstances here, where the defendant has not violated a specific provision of the Consent Decree. In essence, the plaintiff is charging that the defendant's violation is its bad faith, as evidenced by its proceeding with the supersedeas hearing without sufficient cause. The plaintiff has not demonstrated that Erie has committed a clear and straightforward violation of the Consent Decree, such as refusing to participate in a special supersedeas hearing prior to terminating benefits. Since the basis for the plaintiff's contempt motion is Erie's alleged "bad faith," Erie must in fairness be allowed to interpose a "good faith" defense.
In reviewing the record and Magistrate Hall's findings of fact, I am not persuaded that Erie proceeded in bad faith. Although Erie did not formally introduce Dr. Lubahn's deposition testimony at the plaintiff's special supersedeas "hearing," Erie followed the "customary method for introducing deposition testimony before Referee Pastewka." Report of Magistrate Hall, para. 25. And, despite the fact that the plaintiff's case in opposition to the supersedeas seems superior to the one developed by the defendant, it is not at all clear that Erie's position was groundless. Erie believed, based on Dr. Lubahn's testimony, that the supersedeas should have been granted. Erie should not be penalized for winning a case that it should have lost. The ultimate responsibility for deciding the merits of a supersedeas petition rests with the Bureau.
For similar reasons, the plaintiff's claim that Erie should have presented evidence favorable to the plaintiff at the supersedeas hearing is unwarranted. The record does not reflect any attempt by Erie to prevent the plaintiff from presenting such evidence. The Consent Decree's requirement that an employer proceed to a supersedeas hearing prior to terminating benefits does not embrace the additional requirement to present evidence in the plaintiff's favor at such a hearing.
In the absence of proof that an employer has attempted to deprive a class member of a Baksalary hearing, or has otherwise acted in bad faith, the employer will not be found in contempt of the Baksalary Consent Decree. It would be counter to the Consent Decree to hold an employer in contempt where the employer seeks to terminate benefits based on its good faith belief that the claimant is not entitled to such benefits. Finally, employers should not be required to shoulder the burden of presenting a class member's case at a Baksalary hearing, especially under circumstances such as here, in which the employer did not withhold or conceal evidence from plaintiff's counsel.
For these reasons, an order will be entered denying the plaintiff's motion to hold Erie in contempt.
Plaintiffs' and defendant Bureau of Workers' Compensation have submitted a Settlement Agreement for the Court's approval. Based on the per curiam Order issued in this litigation on March 17, 1987, I
do not believe that this agreement is properly before the court. That Order declared that the claims of plaintiffs other than Paul Sabatine were not "sufficiently similar to the issues presented by Mr. Sabatine to make joinder appropriate." To approve a settlement agreement that involves plaintiffs who were found to be outside the scope of Mr. Sabatine's contempt motion seems plainly inconsistent with our prior ruling.
At oral argument, plaintiffs expressed their concern that if the Bureau of Workers' Compensation decided to provide certain plaintiffs with new Baksalary hearings, class defendants might refuse to participate, and plaintiffs would have no enforcement mechanism to secure their rights under the consent decree. I am reluctant to put plaintiffs and defendants generally into a posture of permanent dependence on a federal court. Moreover, I believe that approval of this settlement would place no additional obligations of the class defendants beyond the requirement of "good faith" set forth in the Memorandum relating to Mr. Sabatine's contempt motion.
Accordingly, plaintiffs' Motion for Approval of Settlement is DENIED.