UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
June 19, 1998
FRANCIS J. LOFTUS, Plaintiff,
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, ET AL., Defendants.
The opinion of the court was delivered by: ROBRENO
EDUARDO C. ROBRENO, District Judge.
AND NOW, this 19th day of June, 1998, upon the Order of June 5, 1998, issuing a Rule to Show Cause why counsel for plaintiff, H. Francis deLone, Jr., Eqs., should not be held in contempt for failure to comply with the Court's Order of May 8, 1998 and after a hearing on the record, it is hereby ORDERED that H. Francis deLone is ADJUDGED IN CIVIL CONTEMPT.
It is FURTHER ORDERED that H. Francis deLone, Jr. shall pay to the Court $ 100 per day for each day that he does not pay the sanctions, or does not satisfy the condition of a stay of one is entered by the Court, and shall pay attorney fees and costs incurred by defendants in connection with their motions to have Mr. deLone held in comtempt within 10 days. This Order is based upon the following findings:
1. On May 8, 1998 the Court issued an Order requiring Mr. deLone to pay $ 4,000 in attorney fees to the defendants in this case for purduing the instant lawsuit after it became clear during the course of litigation that the lawsuit was frivolous.
2. On May 20, 1998, two days before the last day provided for in the order for payment, Mr. deLone filed a notice of appeal as well as a motion to stay the proceedings. He did not request that his motion to stay the proceedings be handled in an expedited fashion.
3. By Order dated May 21, 1998, a hearing on the motion to stay the proceedings was scheduled for June 5, 1998. Mr. deLone was informed by the May 21, 1998 Order that the filing of a motion for a stay did not relieve him from complying with the terms of the Court's Order imposing sanctions.
4. The June 5, 1998 hearing on the motion to stay the proceedings was continued to June 9, 1998 based on a request by counsel for defendant SEPTA which indicated that Mr. deLone had no objection to the matter being rescheduled.
5. On June 9, 1998, at the hearing, Mr. deLone presented argument on his motion to stay the proceedings. In the interest of judicial economy, the Court declined to rule on Mr. deLone's motion to stay the proceedings until the Court addressed motions for contempt at a hearing scheduled for June 19, 1998.2a
6. On June 17, 1998, Mr. deLone filed a notice of appeal in the Court of Appeals seeking a stay of proceedings in this Court.
7. On June 19, 1998, at the hearing on the motions for contempt, Mr. deLone was again afforded an opportunity to present evidence and argument in support of his motion to stay the proceedings.
8. The propriety of granting a stay contains four elements: "(a) whether the applicant has made a strong showing that he/she is likely to succeed on the appeal; (b) whether the applicant will be irreparable harmed if a stay is not granted; (c) whether the issuance of a stay will harm the other interested parties; and (d) where the public interest lies." Republic of Philippines v. Westinghouse Electric Corp., 949 F.2d 653, 658 (3d Cir. 1991).
9. The party requesting a stay has the burden of demonstrating that the elements justify the granting of a stay. Gusdonovich v. Business Information Co., 119 F.R.D. 15, 16 (W.D.Pa. 1987).
10. Mr. deLone has failed to meet his burden. With respect to the first element, Mr. deLone did not make any showing that he was likely to succeed on appeal. The issue in fact was not addressed at all in his memorandum in support of his motion for a stay. At the hearing, he did assert briefly that the Court did not afford him due process of law at the time that it imposed the $ 4,000 sanction because he understood from the notice that the hearing would consider only whether the case became frivolous after the Supreme Court denied certiorari in the parallel case and instead, the Court considered and ultimately concluded that frivolity attached not at the time certiorari was denied, but rather, at the time the parallel case was decided by the Court of Appeals. However, the specifics of his argument, even if credited in favor of Mr. deLone, would only afford Mr. deLone a de minimis, if any, remedy, since the Court in the exercise of its discretion reduced the amount of attorney fees which the defendants proved they were entitled to receive from approximately $ 23,000 to $ 4,000.
11. With respect to the second element, Mr. deLone claims that he is likely to suffer irreparable harm to his reputation if he is required to comply with an order finding that he pursued a case in bad faith.
This argument amounts to nothing more than an assertion that an individual suffers irreparable harm if forced to comply with an order with which he disagrees. Disagreement with an order does not relieve a party from complying with the order's directives. United States v. Stine, 646 F.2d 839, 845 (3d Cir. 1980)(citations omitted). In fact, even in situations where the order is later proven to be incorrect or unconstitutional, a person can properly be held in contempt for violating an order. Id.
12. With respect to the third element, the Court finds that the issuance of a stay would harm SEPTA and Local 234. Both SEPTA and Local 234 have cited two other cases in which parties seeking collection from Mr. deLone have encountered difficulty in doing so. (SEPTA Mem. at 5; Local 234 Mem. at 4.) Given Mr. deLone's protestations that he is unable to pay the sanctions, SEPTA and Local 234 can be expected to experience great difficulty in collecting the sanctions the longer time is allowed to elapse before the sanctions become due.
13. Finally, notions of the public interest militate against granting the stay. This is not simply a discrete matter between private parties. Rather, Mr. deLone, an officer of the Court, has chosen to defy the Court's processes. A delay, however slight, in implementing the Court's order will harm the reputation of the Court in the public's eye. Therefore, there can be no dispute that the public interest will not be served by granting a stay.
14. Because Mr. deLone application does not justify the issuance of an unconditional stay, the Court will require the posting of security. The posting of security will satisfy at least two of the concerns addressed above: (1) it will protect the defendants by providing that, in the event that Mr. deLone is unsuccessful on appeal, there will be funds available to pay the sanctions imposed by the Court plus interest, as well as, the attorney fees and costs incurred by defendants in filing motions for contempt; (2) it will require Mr. deLone to acknowledge the validity of the Court's order, and thus, vindicate the public interest in securing the adherence by litigants to judicial decrees.
AND IT IS SO ORDERED.
EDUARDO C. ROBRENO, J.