The opinion of the court was delivered by: JAMES F. MCCLURE, JR.
The court has before it a motion filed October 8, 1992 by defendants United States Gypsum Company ("U.S. Gypsum"), GAF Corporation ("GAF"), and National Gypsum Company ("National Gypsum"), hereafter collectively the "CCR defendants."
The CCR defendants seek a stay of execution of the judgment entered by this court on July 9, 1992 (Record Document No. 282).
Judgment was entered jointly and severally against the CCR defendants and their co-defendant, W.R. Grace and Company ("W.R. Grace"),
in favor of plaintiff Alma M. Sealover, individually, in the amount of $ 175,022.96, inclusive of delay damages, and in favor of Sealover, as administratrix of the Estate of Donald Sealover, deceased, in the amount of $ 333,321.40, inclusive of delay damages.
This case is currently on appeal before the United States Court of Appeals for the Third Circuit.
Both parties filed notices of appeal. Plaintiff's notice of appeal, filed July 20, 1992
raised a single issue: whether the court erred in granting defendants' motion (Record Document No. 242) to treat Johns-Manville as a settled defendant by deducting its pro rata share of the verdict ($ 101,666.67)
from the judgment. Defendant GAF's cross-appeal (Record Document No. 290) was not filed until July 30, 1992.
Defendants raise only one issue on appeal: the manner in which delay damages were calculated.
Due to the urgency of the matters raised by defendants' motion for a stay of execution, the court entered an order on October 13, 1992 (Record Document No. 300) following a telephone conference call with counsel. The court's order (1) granted the CCR defendants a stay of execution until further order of court; (2) granted plaintiff until Friday, October 16, 1992 to file an opposing brief; and (3) provided that a further order would be issued.
Plaintiff's opposing brief was filed October 14, 1992. We are now in a position to dispose of the remaining issue: whether defendants should be required to file a supersedeas bond as a condition of the stay. Fed. R. Civ. P. 62(d).
A district court may exercise its discretion to waive the bond requirement imposed by Rule 62(d). Dillon v. City of Chicago, 866 F.2d 902, 904 (7th Cir. 1988). Defendant argues that no bond is required in this case under the Fourth Circuit's holding in Tennessee Valley Authority v. Atlas Machine and Iron Works, Inc. ("TVA"), 803 F.2d 794 (4th Cir. 1986). In TVA, supra, the Fourth Circuit relied on the United States Supreme Court holding in Bronson v. LaCrosse R.R. Company, 68 U.S. (1 Wall.) 405, 410, 17 L. Ed. 616 (1863) for the proposition that if the prevailing party appeals from a judgment in its favor, the appeal suspends execution of the decree. Based on that proposition, the Fourth Circuit held that the judgment creditor's filing of the appeal operated as an automatic supersedeas, obviating the need for the cross-appellant to file a supersedeas bond. TVA, supra,
Although there appears to be no Third Circuit authority on point, the United States District Court for the Eastern District of Pennsylvania has cited Bronson, supra for the same proposition as TVA, supra. In Advent Systems, Limited v. Unisys Corporation, Civil No. 88-3100 (E.D. Pa. March 1, 1990) ( WESTLAW 1990 WL 20192), the court stated: "Where the prevailing party is the first to take an appeal, no supersedeas bond can be required of the losing party when it subsequently files its own appeal, because the execution of the judgment has already been superseded by the prevailing party's appeal." Citing Bronson, supra, 68 U.S. at 410, the court held that defendant's motion for a stay was superfluous. The court based its holding, however, also on the fact that the plaintiff appealed from the judgment in its entirety and did not challenge "only portions of the court's post-trial rulings", stating "it seems clear that plaintiff is not in a position to seek enforcement of the judgment until the appeal is decided." Advent, supra, slip op. at 1.
Plaintiff argues that we should decline to follow TVA, supra, because it misconstrues the United States Supreme Court holding in Bronson, supra. TVA, supra, was criticized on that point by a recent Fifth Circuit decision, Enserch Corporation v. Shand Morahan & Company, Inc., 918 F.2d 462 (5th Cir. 1990). The Fifth Circuit remonstrated:
One circuit extracted the following general rule from Bronson: 'Where the prevailing party in the lower court appeals from that court's judgment, the appeal suspends the execution of the decree.' . . . [TVA, supra, 803 F.2d at 797] . . . This statement mischaracterizes Bronson by omitting any reference to the purpose of the prevailing party's appeal. The Bronson Court explained that execution of the district court judgment was stayed only because the prevailing parties 'assert that the decree is founded in error and for that reason should not be executed, but should be reversed and corrected in the appellate tribunal.' 68 U.S. at 410. The Fourth Circuit extended Bronson to cover ...