The opinion of the court was delivered by: MARSH
In a housing discrimination action, brought under 42 U.S.C. § 1982, the jury found a verdict in favor of the plaintiffs, John W. Hughes and his wife, Cynthia, in the amount of $1,250.00 against defendant Mrs. John S. Repko. Thereafter, plaintiffs' counsel requested an attorney fee on behalf of the plaintiffs in the amount of $3,850.00 based upon the rate of $70.00 per hour spent on the case, and $222.33 for costs advanced.
It is the opinion of the court that the defendants are not entitled to any attorney's fee, but plaintiffs are entitled to an attorney's fee in the amount of $700.00 and costs, or a total of $922.33.
The plaintiffs are black citizens. The defendant, Mrs. Repko is a white citizen and owner of a building containing an apartment and two rental units. The defendants decided to move to Buffalo, New York, and Mrs. Repko advertised her apartment for rent in the Pittsburgh Press.
The plaintiffs responded to the advertisement and in the absence of Mrs. Repko, Mr. Repko showed them the premises. Mr. Repko did not tell his wife that the plaintiffs were black. After Mr. Repko left Pittsburgh, the plaintiffs came to the building in response to a telephone call from Mrs. Repko. When Mrs. Repko saw that the plaintiffs were black she refused to rent the apartment to them in violation of § 1982. Mrs. Repko denied discrimination. After trial upon the disputed factual issue of discrimination, the jury found in favor of plaintiffs. Judgment was entered on the verdict against Mrs. Repko.
In the pleadings it appears that both defendants owned the building involved, but long before trial the complaint was amended by stipulation and order of court to read as follows:
"5. Defendant, Mrs. John S. Repko is the owner of premises located at 1008 Mifflin Street, Pittsburgh, Pennsylvania 15221."
At trial there was no proof that the defendant John Repko refused to rent the apartment to plaintiffs and a directed verdict in his favor was entered by the court in the action under § 1982.
At trial there was no proof whatsoever that Mr. and Mrs. Repko entered into a conspiracy to refuse to rent the apartment to the plaintiffs because of their race and a directed verdict was entered in favor of both defendants on the § 1985 conspiracy count.
In their complaint the plaintiffs demanded punitive damages. However, plaintiffs did not prevail on this demand; the jury specifically awarded them only compensatory damages.
The complaint which was filed on March 15, 1976, demanded counsel fees. Apparently the learned counsel for plaintiff was not aware of Alyeska Pipeline Service Company v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975) which foreclosed court awards of attorneys' fees unless authorized by statute. (See transcript of January 6, 1977 at p. 12). Had the case been tried on August 30, 1976, as scheduled (see notice filed June 23, 1976), the plaintiffs would not have been entitled to counsel fees. However, on August 5, 1976, the defendants filed a Motion for Summary Judgment which was later denied. On October 19th, Congress enacted the Civil Rights Attorney's Fees Awards Act of 1976, which provided as follows:
"In any action or proceeding to enforce a provision of [§§ 1981-1985, Title 42 U.S.C.] the court, in its discretion, may allow the prevailing party, . . . a reasonable attorney's fee as part of the costs."
At the time of trial in January, 1977, plaintiffs' counsel was apparently unfamiliar with the above quoted Act. He erroneously contended that the award of attorneys' fees was properly a question for the jury and requested the court to so ...