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WHITE v. BEAL

March 10, 1978

RALPH WHITE, et al.,
v.
FRANK S. BEAL, et al.



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 March 10, 1978

 The plaintiffs, having prevailed on the merits, now seek to recover their attorneys' fees. Before determining whether the amount they have requested is reasonable and justified, it is necessary to determine whether there exists a basis for allowing an award of attorneys' fees to the prevailing litigant in a case of this nature.

 I. Procedural Background

 The plaintiffs brought this civil rights class action pursuant to 42 U.S.C. § 1983 against the state officials who were responsible for administering Pennsylvania's federally funded medical assistance program. They claimed that the defendants' refusal to provide them eyeglasses pursuant to Pa.Stat.Ann.tit. 62, § 443.4, DPW-Pa. Manual §§ 9740 and 9743 which approved the dispensing of eyeglasses only to those eligible welfare recipients who suffered from an eye disease or pathological disorder, violated the due process and equal protection clauses of the fourteenth amendment. In addition, plaintiffs asserted a pendent federal statutory claim alleging that the state statutory scheme was in conflict with the Social Security Act, 42 U.S.C. § 1396, et seq., and the regulations promulgated thereunder, 45 CFR § 249.10, et seq., and was therefore in violation of the supremacy clause of Article VI of the United States Constitution. Because the constitutional claim satisfied the substantiality doctrine of Hagans v. Lavine, 415 U.S. 528, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974), pendent jurisdiction was exercised over the statutory claim.

 The case was certified as a class action, the class consisting of

 
all Pennsylvania recipients of medical assistance for whom eyeglasses are medically necessary in the judgment of a physician skilled in diseases of the eye or an optometrist, and who have been or will be denied authorization by the Pennsylvania Department of Public Welfare, pursuant to the Department of Public Welfare Manual §§ 9740 and 9743 to receive eyeglasses in that defendants provide eyeglasses only to persons with eye disease or pathology and deny them to persons whose need for eyeglasses is due to reasons other than disease or pathology.

 Resolution of the statutory claim resulted in summary judgment in favor of the plaintiff class and the defendants were permanently enjoined from applying the restrictive state regulations. White v. Beal, 413 F. Supp. 1141 (E.D.Pa. 1976), aff'd, 555 F.2d 1146 (3d Cir. 1977).

 At the time the instant petition was filed, the plaintiffs would arguably have been entitled to attorneys' fees only under the common benefit fund exception to the "American Rule" which generally precludes an award of attorneys' fees to the prevailing litigant. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975). This theory, however, raised certain difficult problems because no common fund, monetary or otherwise, *fn1" the right to which would accrue to a definable class, had been created as a result of this litigation. Despite plaintiffs' arguments to the contrary, there seemed to be no way to spread the cost of counsel fees among those benefited from the litigation, which is the justification for the common fund exception. Hall v. Cole, 412 U.S. 1, 36 L. Ed. 2d 702, 93 S. Ct. 1943 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 24 L. Ed. 2d 593, 90 S. Ct. 616 (1970). Furthermore, even if an award of counsel fees were justified under the common benefit exception, the eleventh amendment still presented a formidable obstacle to the recovery of such an award from these defendants.

 While this petition was pending, Judge Newcomer denied an award of attorneys' fees in a similar case, on the grounds that the common benefit exception as clarified in Alyeska, supra, does not apply to a non-economic benefit from which no monetary fund is created. Mental Patients Civil Liberties Project v. Department of Public Welfare, Civil Action No. 73-1512 (E.D.Pa. filed Aug. 18, 1975). Because of the similarity of the issues, decision on the instant petition was stayed pending disposition of the appeal taken from that decision. On September 7, 1976, the Court of Appeals for the Third Circuit affirmed, by judgment order, the decision of Judge Newcomer for the reasons stated in his memorandum. Mental Patient Civil Liberties Project v. Dept. of Public Welfare, 541 F.2d 275 (3d Cir. 1976). Thereafter, the United States Supreme Court granted plaintiffs' petition for a writ of certiorari, vacated the judgment order of the court of appeals and remanded the case for further consideration in light of the Civil Rights Attorneys' Fees Awards Act of 1976, Pub.L. 94-559, § 2, Oct. 19, 1976, 42 U.S.C. § 1988. Mental Patient Civil Liberties Project v. Dept. of Public Welfare, 430 U.S. 925, 51 L. Ed. 2d 769, 97 S. Ct. 1542 (1977).

 II. Civil Rights Attorneys' Fees Awards Act of 1976

 Defendants' opposition to this petition is centered on three arguments. First, they contend that the Act does not apply to cases pending on the date of its enactment. Second, they argue that even if the Act were applicable to pending litigation, it does not apply to this particular case because plaintiffs, having succeeded only on their pendent statutory claim, are not the prevailing litigants in an action to enforce one of the civil rights statutes to which the Act applies. Finally, they argue that the eleventh amendment still stands as a bar to any monetary recovery payable out of the state treasury. These arguments will be considered ad seriatim.

 1. Pending Cases

 At the time this Act became effective, the order granting plaintiffs' motion for summary judgment was on appeal but the plaintiffs' petition for attorneys' fees was pending before this court pursuant to the order of June 23, 1976, staying resolution of the petition until decision on the appeal in the Mental ...


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