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April 28, 1989

DAVID W. FRITZ, an incompetent, by his mother and guardian, HELEN FRITZ, et al.
JOHN WHITE, Secretary, Department of Public Welfare, Commonwealth of Pennsylvania, et al.

The opinion of the court was delivered by: BRODERICK


 The original plaintiffs herein -- five profoundly retarded individuals residing and receiving habilitation at Pleasant Manor, a private licensed facility in Bucks County, Pennsylvania -- commenced this action to obtain injunctive relief requiring the Commonwealth of Pennsylvania and Bucks County to provide the additional funding required to avoid their eviction from Pleasant Manor. On the day this Court was to conduct a hearing on the plaintiffs' motion for a preliminary injunction, a settlement was reached which provided plaintiffs with the relief they sought. Plaintiffs subsequently filed a motion seeking an award of $ 20,475.00 in attorney's fees, together with costs of $ 1,200.00. Defendant John White, Jr., Secretary of the Commonwealth of Pennsylvania Department of Public Welfare ("Commonwealth defendant") responded by contending that as to the Commonwealth there was no causal connection between this litigation and the relief obtained by the settlement. Defendants Bucks County and Philip Fenster, Administrator of the Bucks County Office of Mental Retardation ("County defendants"), filed a reply in which they contend that the plaintiffs are entitled to recover attorneys' fees from the Commonwealth defendant, but that the County defendants should not be obligated to pay a fee. The Court held a hearing on February 22, 1989, at which all the parties presented evidence "for the purpose of determining the causal connection between the relief obtained and the litigation."


 The costs of the plaintiffs' residential treatment at Pleasant Manor are paid by the County defendants with funds allocated by the Commonwealth defendant. Pleasant Manor announced a raise of its per diem rate by 38%. The County defendants and the Commonwealth defendant responded that funds were not available to pay such an increase.

 The plaintiffs filed a complaint on July 26, 1988 to obtain declaratory and injunctive relief, alleging as the basis therefor that the defendants' failure to provide adequate funding would result in the plaintiffs' eviction from Pleasant Manor and requested an injunction to compel the Commonwealth defendants to provide sufficient funding to the County defendants to pay the full costs of plaintiffs' continued habilitation at Pleasant Manor.

 The administrator of Pleasant Manor issued a notice dated September 14, 1988 in which she informed the parents of the plaintiffs that their children would be "discharged" from Pleasant Manor within 60 days. On September 22, 1988, plaintiffs moved for a temporary restraining order or a preliminary injunction to obtain the needed funding. On October 14th, this Court denied plaintiffs' request for a TRO but scheduled a hearing for November 3rd in connection with plaintiffs' motion for a preliminary injunction. On October 26th, the County defendants moved to join as plaintiffs seven other retarded residents of Bucks County who were receiving habilitative services at Pleasant Manor and who had also been threatened with being evicted from Pleasant Manor. The Court issued an order joining the seven other Bucks County residents at Pleasant Manor and directing the County defendants to represent them. The County defendants joined in plaintiffs' request for injunctive relief.

 On the day of the scheduled hearing on the request by plaintiffs and the County defendants for injunctive relief against the Commonwealth defendant, November 3, 1988, the parties announced to the Court that a settlement had been reached whereby the Commonwealth defendant would provide additional funding to the County defendants and the County defendants would pay Pleasant Manor an increase of 26%, an amount previously agreed to by Pleasant Manor. Pursuant to Local Rule of Civil Procedure 23(b), the Court ordered this litigation dismissed with prejudice. Subsequently, as provided by the settlement, the Commonwealth defendants forwarded additional funds which funds were used by the County defendants to pay the increased charges to Pleasant Manor, permitting all of the retarded plaintiffs to continue receiving habilitative services at Pleasant Manor.

 In their motion for attorneys' fees, the plaintiffs contend that a causal connection exists between this litigation and the relief obtained by the plaintiffs. The plaintiffs seek to recover attorney's fees and costs only from the Commonwealth defendant and not from the County defendants. The Commonwealth defendant contends that relief was obtained by the plaintiffs because the Governor signed a supplemental appropriation ("Act 55A"), making additional funds available for the County defendants, and the County defendants agreed by settlement to use a portion of the funds to pay the increased costs for the retarded plaintiffs at Pleasant Manor. The Commonwealth defendant claims neither the Commonwealth nor any of its employees took any action in response to this litigation. It is the Commonwealth defendant's position that he merely acted in a ministerial capacity by allocating additional funds to each County. As heretofore pointed out, the County defendants, against whom the plaintiffs seek no recovery of attorney's fees and costs, do not contest plaintiffs' entitlement to recover against the Commonwealth defendant.

 At the February 22, 1989 hearing scheduled for the purpose of obtaining evidence from the parties to determine the causal connection between the relief obtained and the litigation, the Court heard from several witnesses and received documentary evidence. After carefully considering that evidence, together with the affidavits submitted by the parties, the Court concludes that there was a causal connection between this lawsuit and the relief obtained by the plaintiffs. In accordance with 42 U.S.C. § 1988, the plaintiffs are therefore entitled to a reasonable attorney's fee and costs.


 Following the decision by Pleasant Manor to increase its rate by 38%, the County defendants in a letter dated June 27, 1988, notified the parents of the retarded plaintiffs that the County will offer Pleasant Manor a 2.68% increase but if the offer is refused, the parents will be required to choose between paying the increased charges themselves, taking their children home or having the County initiate commitments to the Embreeville State Center.

 The parents of the plaintiffs were not satisfied with any of the options provided by the County. Helen Fritz, the mother of plaintiff David Fritz, acted on behalf of all the parents and contacted county and state officials and members of the state legislature in an effort to amicably resolve the problem. The parents met with defendant Phillip Fenster, Administrator of the Bucks County Department of Mental Health-Mental Retardation. He told Mrs. Fritz that the County lacked the funds needed to help the parents keep their children at Pleasant Manor without additional funding from the Commonwealth. Two of the Bucks County Commissioners met with all the families. They promised to help but said there was nothing they could do without additional state funding. The parents also wrote to members of the Legislature. The Executive Director of the State House Health and Welfare Committee, Mary Ellen McMillen, promised that the Bucks County legislators would meet and consider the problem.

 In a memorandum dated July 14, 1988, Mrs. McMillen stated, "I have spoken with the deputy secretary, Mr. Eidelman, who advises me that a meeting has been scheduled for July 21, 1988, to attempt to resolve the Pleasant Manor crisis. His regional staff will meet with the administrators from Bucks, Chester, Delaware, Montgomery and Philadelphia Counties and Pleasant Manor to negotiate an acceptable rate." After receiving a copy of this memorandum, Mrs. Fritz twice attempted to reach Deputy Secretary Eidelman by telephone. She was told that Deputy Secretary Eidelman was unavailable and that she should contact the regional D.P.W. administrator. Mrs. Fritz then made repeated unsuccessful attempts to reach the regional administrator but no one returned her calls. Finally, Mrs. Fritz was advised that the parents of the retarded plaintiffs would not be permitted to attend the meeting between D.P.W. regional staff, Pleasant Manor, and representatives of the five southeastern Pennsylvania counties. The meeting took place in late July, but the rate increase being demanded by Pleasant Manor was not settled. Faced with the fear that their retarded loved ones would be evicted from Pleasant Manor, the plaintiffs retained counsel who filed this complaint on July 26, 1988.

 On August 3, 1988, Mrs. Fritz wrote to the Governor and received a reply from Deputy Secretary Eidelman on August 29th which advised that Pleasant Manor had agreed to accept a 26% increase rather than the 38% initially requested. This compromise at 26% was the result of negotiations between the representatives of Pleasant Manor, ...

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