The Supreme Court has amended the official notes to Pa. R.A.P. 1732 (relating to stays or injunctions pending appeal in civil matters) and Pa. R.A.P. 1781 (relating to stays pending action on petitions for review), to formally acknowledge that the courts utilize the criteria set forth in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983) to evaluate a request for a stay pending appeal. The amendment becomes official April 1, 2019. Order Amending Rules 1732 and 1781 of the Pennsylvania Rules of Appellate Procedure, 49 Pa.B. 832 (Feb. 23, 2019). Of course, use of the Process Gas criteria for this purpose has been Pennsylvania’s law since 1983.
Process Gas adopts the supersedeas criteria formulated by the court in Virginia Petroleum Jobbers Ass’n v. Federal Power Comm’n, 259 F.2d 921 (D.C. Cir. 1958), as clarified in Washington Metropolitan Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977). The familiar criteria, as enumerated and explained in Virginia Petroleum Jobbers, are:
(1) Has the petitioner made a strong showing that it is likely to prevail on the merits of the appeal? Without such a substantial indication of probable success, there would be no justification for the court’s intrusion into the ordinary processes of administrative and judicial review. (2) Has the petitioner shown that without such relief, it will be irreparably injured? The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective action will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm. But injury held insufficient to justify a stay in one case may be sufficient to justify it in another, where the applicant has demonstrated a higher probability of success on the merits. (3) Would the issuance of a stay substantially harm other parties interested in the proceedings? On this side of the coin, we must determine whether, despite showings of probable success and irreparable injury on the part of the petitioner, the issuance of a stay would have a serious adverse effect on other interested persons. Relief saving one claimant from irreparable injury, at the expense of similar harm caused another, might not qualify as the equitable judgment that a stay represents. (4) Where lies the public interest? In litigation involving the administration of regulatory statutes designed to promote the public interest, this factor necessarily becomes crucial. The interest of private litigants must give way to the realization of public purposes. The public interest may, of course, have many faces—favoring at once both the rapid expansion of utilities and the prevention of wasteful and repetitive proceedings at the taxpayer’s or consumer’s expense; both fostering competition and preserving the economic viability of existing public services; both expediting administrative or judicial action and preserving orderly procedure. We must determine, these many facets considered, how the court’s action serves the public interest.
Virginia Petroleum Jobbers at 925 (emphasis in original).
Washington Metropolitan clarified that the applicant need not demonstrate that ultimate success is a “mathematical probability and … may grant a stay even though its own approach may be contrary to movant’s view of the merits. The necessary ‘level’ or ‘degree’ of possibility of success will vary according to the court’s assessment of the other factors.” 559 F.2d at 843.
Since Process Gas was decided, Pennsylvania courts have applied its criteria as a balancing of the equities, without necessarily giving any one criterion more weight than another. See, e.g., Reading Anthracite Co. v. Rich, 577 A.2d 881 (Pa. 1990) (Supreme Court observed that a party seeking a supersedeas will attempt to establish the existence of each of the Process Gas criteria and that a court will assess the movant’s chances for success on appeal and weigh the equities as they affect the parties and the public).
The Process Gas criteria apply in criminal matters, Com. v. Melvin, 79 A.3d 1195 (Pa. Super. 2013) (Process Gas criteria applied to application for supersedeas of portion of sentence that required defendant to write letters of apology) except to the extent a provision of the Pennsylvania Rules of Criminal Procedure are applicable. Pa. R.A.P. 1764 (Explanatory Comment – 1976) (explaining that “the supersedeas provisions in civil appeals are applicable” in criminal matters “in the absence of a specific provision in the Rules of Criminal Procedure).
For more information, contact Kevin McKeon or Dennis Whitaker.