is my finding that there are special circumstances in this case which would make it unjust to do so.
First, and most obviously, Grace Building had no part in the alleged constitutional violation and was in fact powerless to prevent whatever violation was caused by the county. See Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1045 (4th Cir. 1976) (special circumstances warranting denial of counsel fees where defendant was powerless to prevent constitutional violation and award would penalize persons who had no part in violation) cited with approval in Staten v. Housing Authority of Pittsburgh, 638 F.2d 599, 605 n.13 (3d Cir. 1980). All Grace Building did was to buy the property at an apparently lawful tax sale, which was then confirmed by the Court of Common Pleas. Grace Building had nothing to do with whether the taxes were paid, the decision to sell the property, the method of giving notice, whether notice was received, how the sale was conducted or whether the property was redeemed. Indeed, if no one else had purchased the plaintiff's property, the county would have and Massey would have lost his property regardless of Grace Building's activity. In short, Grace Building was a third party who did nothing to deprive Massey of his property, could not have prevented the deprivation, and purchased the property in good faith only after the alleged violation had been completed. To assess attorney's fees against Grace Building under these circumstances would not further the policy of encouraging those who act as a private attorney general in vindicating a constitutional deprivation. See Naprstek v. City of Norwich, 433 F. Supp. 1369 (N.D.N.Y. 1977) (special circumstances found when award of attorney's fees would not further the policy of the statute) cited with approval in Staten v. Housing Authority of Pittsburgh, 638 F.2d 599, 605 n.13 (3d Cir. 1980).
The second special circumstance which would make it unjust to award fees against Grace Building is its conduct throughout the entire history of this action. Having purchased the property without notice of any alleged violation of Massey's constitutional rights, Grace Building did nothing until the two-year redemption period expired. In the meantime, the sale had been confirmed nisi by a court of competent jurisdiction, no exception by Massey had been taken to that sale, and the property had been conveyed to Grace Building by the Delaware County treasurer. Grace Building then began its action to quiet title, the first step under Pennsylvania law to perfect title after a tax sale. While the quiet title action was pending, and even after the present suit was filed (more than five years after the tax sale), Grace Building allowed Mr. and Mrs. Collins to occupy the property without paying rent. Additionally, Grace Building agreed to stay its quiet title action, or any action for possession of the property until the present litigation was resolved. Indeed, Grace Building's good faith is shown by the fact that it voluntarily accommodated plaintiff, while the instant suit was pending, in every request plaintiff made in his complaint. Accord Chastang v. Flynn & Emrich Co., 541 F.2d at 1045 (special circumstances found where defendant acted in good faith to redress a violation it was powerless to prevent). The most that can be said against Grace Building is that it defended itself in this action. In view of the strength of defendant's position on the merits, there was no reason for it to do otherwise.
In contrast to Grace Building's good faith is Massey's own culpability. This is the third special circumstance which would make it unjust to award counsel fees. Plaintiff's wounds were self-inflicted.
He was the one who moved out of the property, county, and state without providing the tax collector with a forwarding address and without paying his taxes. He was the one who did not redeem this property -- even though he redeemed another property on the same street which had been sold at the same tax sale. Massey was thoroughly familiar with the fact that real estate taxes exist, and what would happen if they were unpaid. He had walked close to the tax-sale stream on many prior occasions and had even fallen into it twice. To suggest that he did not know it was there is at best creative.
While this suit may have provided a commendable vehicle for establishing new county procedures for giving notice of a tax sale and the opportunity to be heard, this factor urges the assessment of fees against the county, not Grace Building. To require counsel fees of $12,393.50 from a defendant who had no part in any constitutional deprivation and who acted in good faith throughout the prelitigation and litigation phases of this action, for a plaintiff who brought his problems on himself and to the extent that he suffered a constitutional deprivation did so at the hands of another party, would be a great travesty on justice.
AND NOW, this 24th day of June, 1986, it is hereby ordered that plaintiff's petition for attorney's fees pursuant to 42 U.S.C. § 1988 is denied.