services for all persons who need them." 50 P.S. § 4201(1).
Throughout this litigation no party has disputed that termination of habilitative services to the plaintiff class members would result in irreparable injury to each retarded member of the class. As the Court found in its February 2nd Memorandum, services cannot continue without funds being allocated by the Commonwealth defendants. The members of the plaintiff class could never be made whole for the loss which they will suffer in the event Commonwealth funding is not forthcoming. The Court finds that if a stay is granted irreparable injury will be suffered by the retarded residents of Philadelphia living at home and not by the Commonwealth defendants.
The Court has found that without Commonwealth funding, delivery of habilitative services to the retarded living at home in Philadelphia will terminate in the immediate future. As pointed out in this Court's February 2nd Memorandum, the habilitative service delivery system in the City of Philadelphia will suffer irreparable injury without funding from the Commonwealth.
Clearly, the public interest will not be served by a stay order. The public interest will only be served by providing habilitation to the mentally retarded. Today, there is a public awareness that the retarded are individuals, the great majority of whom have the potential to become productive members of our society. There is public recognition that the retarded are persons who should be provided the opportunity to participate in programs which will enable them to achieve their potential -- a potential which in this case is being denied by the failure of the Commonwealth defendants to provide the funding.
Furthermore, the Commonwealth defendants have not made a convincing showing that they are likely to succeed on the merits. As heretofore pointed out, the basis of their appeal is that the November 17th Order of this Court did not specifically order the Commonwealth to fund the habilitation services which the Court ordered them to provide. As the Court has found, the position of the Commonwealth that they were not aware that the Order required the Commonwealth to provide funding is less than credible. In any event, this Court's Order of February 2, 1989 gave the Commonwealth until February 14 to provide the necessary funding which the Commonwealth was ordered to provide in the November 17th Order of this Court.
Accordingly, this Court will enter an Order denying the Commonwealth defendants' motion for a stay pending appeal.
AND NOW, this 9th day of February, 1989, for the reasons set forth in this Court's Memorandum of February 9th, 1989,
IT IS ORDERED: the motion of the Honorable John White, Jr., Secretary of the Department of Public Welfare of the Commonwealth of Pennsylvania and Steven Eidelman, Deputy Department of Public Welfare Secretary for Mental Retardation for a stay of this Court's Order of February 2, 1989 is DENIED.
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