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Cunningham v. City of McKeesport

January 15, 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 OMSLAER WRECKING CO., ROBERT CLYDE OMSLAER T/D/B/A OMSLAER WRECKING COMPANY



On Appeal from the United States District Court for the Western District of Pennsylvania.

Gibbons and Becker, Circuit Judges, and Katz, District Judge.*fn*

Author: Gibbons

GIBBONS, Circuit Judge

Rebecca Cunningham, a successful plaintiff in a civil action brought pursuant to 42 U.S.C. § 1983 (1982) against the City of McKeesport, Pennsylvania, its building inspector, and others, appeals from the judgment awarding attorneys' fees. Pursuant to 42 U.S.C. § 1988 (1982), she requested a fee award of $35,887.50. The court awarded $5,875.00. Cunningham contends that the court erred in reducing the requested fees to this extent. Because the court did not properly apply the standards applicable for statutory fee awards in this circuit, we reverse.

I.

The Underlying Case

Cunningham, in 1980, purchased an unoccupied house and garage in the City of McKeesport from the United States Department of Housing and Urban Development for $2,700. Cunningham made some minor repairs. She then applied for a subsidized loan from the Improvement Program of Allegheny County (IMPAC) Which approved a $15,000 interest-free loan to be repaid in fifteen years. Cunningham, intending to live in this house, then contracted to have the property rehabilitated for $15,000. Before the rehabilitation work could be commenced, without prior notice to Cunningham, the City of McKeesport demolished the house and garage.

To seek redress, Cunningham retained the Pittsburgh firm of Nernberg & Laffey which accepted her case on a contingent fee basis. It assigned primary responsibility to an associate, James R. Cooney, who, after investigating the circumstances leading to the demolition, filed a complaint on her behalf charging that the defendants had deprived her of property without due process. The complaint sought recovery of the post-renovation market value of the house, for loss of the opportunity to receive the $15,000 interest free loan, for emotional distress, and for punitive damages. The defendants contested both liability and damages, and asserted several affirmative defenses including immunity. Both parties engaged in extensive discovery. At a pretrial conference the trial court ordered that briefs be filed on a number of contested issues, and that the parties submit proposed points for charge with legal citations for each point raised.

Trial began on April 12, 1983 and continued through April 15, 1983. At the end of the plaintiff's case the trial court directed a verdict in favor of some defendants. The trial continued against the City, the building inspector, and the demolition contractor. The case was submitted to the jury on special verdict interrogatories. The jury returned a verdict in favor of the demolition contractor, but against the City and the building inspector. It found that these defendants had deprived her of property without due process of law in violation of 42 U.S.C. § 1983. In answer to the question "what was the market value, if any, of plaintiff Rebecca Cunningham's house and garage immediately prior to demolition?" the jury answered $20,000. In answer to the question "what damages, if any, is plaintiff Rebecca Cunningham to recover for the loss of the IMPAC loan?" the jury answered $15,000. Thus the verdict would support a judgment in Cunningham's favor for $35,000.

Following the verdict the City and the building inspector moved for a new trial on the ground that the court erred in admitting testimony concerning the interest-free loan. They also moved for a remittitur on the ground that the jury verdict finding a value of $20,000 for the house and garage was not supported by the evidence. They urged, as well, that the court committed several trial errors requiring a new trial. Cunningham moved to amend the verdict to include pre-judgment interest. The trial court, by order, directed that the parties file briefs on these motions.

In its ruling on the post-trial motions the trial court declined to award Cunningham pre-judgment interest, reducing the award for destruction of the house and garage to $17,000.00, and held that the value of the interest-free loan was not a proper element of damages. It denied the defendants' motion for a new trial. Judgment was entered in Cunningham's favor against the City and the building inspector for $17,000. Neither party has appealed from this part of the judgment although counsel for Cunningham advised her that the verdict should not have been reduced.

II.

The Fee Award

Cunningham filed a timely motion, pursuant to 42 U.S.C. § 1988 (1982) for an award of counsel fees. In support of that motion she filed the affidavit of James R. Cooney. That affidavit states in detail the number of hours spent by Cooney in various stages of trial preparation and trial. Cooney claims he spent 50 hours prior to filing the complaint, 247.75 hours in pretrial discovery activities, trial preparation, and trial, and 16.75 hours on post-trial motions; a total of 314.50 hours. In addition, W. Thomas Laffey, a partner in Nernberg & Laffey, spent 11.5 hours ...


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