No. 261 Harrisburg 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Dauphin County at No. 4028 of 1980.
Rita Bernstein, Philadelphia, for appellant.
James Ronca, Harrisburg, for appellee.
Wickersham, Johnson and Hoffman, JJ.
[ 336 Pa. Super. Page 533]
Janet Tallon appeals from the order of the Court of Common Pleas of Dauphin County denying her motion for an award of counsel fees pursuant to the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988.
The litigation that ultimately resulted in this appeal commenced on July 31, 1980 when Janet Tallon, appellant herein, filed a complaint against appellee Liberty Hose Company, a volunteer fire company in the Borough of Williamstown, alleging that it had denied her application for membership solely on the basis of her sex. Plaintiff-appellant sought both declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution, as well as the Equal Rights Amendment to the Pennsylvania Constitution, Art. 1, section 28. More specifically, appellant asked that the court declare appellee's rejection of her application a violation of 42 U.S.C. § 1983 and the Pennsylvania Equal Rights
[ 336 Pa. Super. Page 534]
Amendment. Appellant also requested that the court order Liberty Hose to admit her to active membership and to adopt a procedure which would ensure that applicants are not rejected on the basis of their sex.
After some discovery, the parties negotiated a consent decree which was approved by the Honorable William W. Caldwell on March 8, 1982. The parties agreed, among other things, that appellant would be admitted as a probationary member of the hose company, and if she fulfilled the probationary requirements, which applied to all members, she would be admitted as a permanent member. The consent decree further stated that the constitution and by-laws of the hose company would be amended to specify that no person would be rejected from membership on the basis of gender. Liberty Hose made no admission that it had violated federal law.
Although appellant had requested an award of attorney's fees in her original complaint, the consent decree made no mention of counsel fees. On July 7, 1982, appellant's counsel contacted the hose company's attorney in an effort to reach an agreement on the question of attorney's fees. The negotiations were unsuccessful and in October of 1982, appellant filed a petition for award of counsel fees pursuant to the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988. Liberty Hose filed a motion to quash appellant's petition. A hearing was held on March 29, 1983 before the Honorable John C. Dowling and on June 13, 1983, Judge Dowling issued an order denying appellant's motion for an award of counsel fees. This appeal timely followed.*fn1
[ 336 Pa. Super. Page 535]
Appellant presents us with five issues, all of which address the question of whether the lower court erred in refusing to grant her motion for an award of counsel fees pursuant to 42 U.S.C. § 1988.*fn2 In her first issue, appellant asks whether she met all of the requirements ...