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Cunningham v. City of McKeesport

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


February 13, 1985

REBECCA L. CUNNINGHAM, AN INDIVIDUAL, APPELLANT
v.
THE CITY OF MCKEESPORT, WILLIAM WEISSERT, SAMUEL R. VIDNOVIC, GERALD F. BOYLE, JOSEPH P. GRAZIANO, JAMES HEATHERINGTON, CHARLES A. SHARBAUGH, NICHOLAS J. SKEZAS, CAROLYN O. YOUNG AND AMSLAER WRECKING CO., ROBERT CLYDE OMSLAER T/D/B/A OMSLAER WRECKING COMPANY (D.C. CIVIL NO. 81-1434)

The petition for rehearing filed by appellees, City of McKeesport and William Weissart, in the above entitled case having been submitted to the judges, who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.

Author: Gibbons

Present: SEITZ, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges, and KATZ, District Judge.*fn*

John J. Gibbons,

STATEMENT BY JUDGE ADAMS

SUR DENIAL OF PETITION FOR REHEARING

In this case the plaintiff purchased property in 1980, in McKeesport, Pennsylvania, for $2700. The City negligently demolished it in March, 1981, but offered to pay the plaintiff $15,000 in damages. Plaintiff declined the offer and instituted a civil rights action. The jury found the value of the property to be $20,000, which the district court reduced to $17,000. There is no issue in this appeal regarding this reduction.

Plaintiff then sought attorney's fees of $35,887.50, claiming that her counsel had devoted 358 hours in connection with the case, including 247.75 hours in pretrial discovery. She asserted that the services rendered were worth $100 or $125 per hour, depending on whether James R. Cooney, Esquire, who has been a member of the bar since November, 1980, or W. Thomas Laffy, Esquire, a member of the bar since 1972, performed those services.

The trial judge granted a counsel fee of $5,875. In justifying this fee, he disallowed all but 219 hours and valued the services of $50 per hour. The court then applied a negative multiplier because of the nature of the case. The panel has vacated the judgment of the district court regarding the fee and has remanded the matter back to the district court for entry of an order reflecting the much larger requested fee.

Given the nature of the grievance here and cost of the property demolished, this case raises serious questions regarding a fee request that appears to be more than ten times the cost of a small piece of real estate that was destroyed. Especially troubling is the fact that almost 250 hours were claimed to have been spent by plaintiff's counsel to pretrial discovery -- that would be the equivalent of six full weeks of legal services devoted to discovery in a case involving a property acquired for $2700, and for which damages have been entered in the amount of $17,000. While we cannot evaluate the reasonableness of the fee request in the absence of a record, its disproportionate relation to the amount in controversy would appear to justify, at the very least, a remand for a reappraisal by the district court along the proper lines of analysis.

Both the judiciary and the public increasingly are becoming concerned that a portion of the legal professions seems to be more interested in the subject of fees than in performing quality legal services. This perception, if left unchecked by careful judicial perception, if left unchecked by careful judicial scrutiny, may threaten the viability of the counsel fee statute for legitimate social ends. The question of disproportionate attorney's fees is a matter sufficiently serious, I believe, to command the attention of the entire Court. Moreover, this proceeding might provide an opportune occasion for the Court to refine some important aspects of the Lindy rule. See Lindy Brothers, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976)(in banc). Since its announcement in 1976 many question have arisen regarding its applicability which should be resolved promptly in order for the bar and the trial courts to pursue a more realistic interpretation of its salutary goals.

For all the foregoing reasons, I respectfully dissent from the order denying the petition for rehearing.

Judges Hunter, Weis, and Garth join in this dissent.


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