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Durett v. Cohen

May 13, 1986

PAUL DURETT, APPELLANT/CROSS-APPELLEE
v.
WALTER S. COHEN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF PUBLIC WELFARE, COMMONWEALTH OF PENNSYLVANIA; JENNIFER L. HOWSE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS DEPUTY SECRETARY FOR MENTAL RETARDATION OF THE PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, COMMONWEALTH OF PENNSYLVANIA; PATRICIA C. SWEIGERT, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS THE ADMINISTRATOR OF THE BUCKS COUNTY DEPARTMENT OF MENTAL HEALTH-MENTAL RETARDATION, COMMONWEALTH OF PENNSYLVANIA; ELAINE P. ZETTICK, CARL F. FONASH, AND ANDREW L. WARREN, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS THE BUCKS COUNTY COMMISSIONERS, COMMONWEALTH OF PENNSYLVANIA, APPELLEES/CROSS-APPELLANTS



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 83-3855)

Author: Sloviter

SLOVITER, Circuit Judge.

Before: SLOVITER and STAPLETON, Circuit Judges, and LONGOBARDI, District Judge.*fn*

Opinion OF THE COURT

SLOVITER, Circuit Judge.

I.

In this case, all parties to an action brought under the federal civil rights laws, 42 U.S.C. § 795, appeal aspects of the district court's decision to award attorneys' fees.

Paul Durett is a profoundly retarded man with cerebral palsy characterized by several physical disabilities. He has been evaluated as having a mental age of 2.5 months and an I.Q. of ten and is in need of total physical care. Durett cannot form the intent necessary to choose a state of residence.

Durett was born in New Jersey in 1946 and lived there until 1961. In that year, Durett's parents placed him in a private residential mental retardation facility in Montgomery County, Pennsylvania. In 1968, Durett was moved to Pleasant Manor, a facility in Bucks County, Pennsylvania, where he currently resides.

Durett's parents lived in New Jersey until 1957, when they relocated to Venezuela. They stayed in Venezuela until 1972, but maintained their home in New Jersey and returned there on vacations. In 1972, Durett's father died and Durett's mother moved to Nevada, where she now resides.

The Duretts paid for Paul Durett's care exclusively until 1973, when Durett became eligible for Social Security and Benefits Assistance Benefits, which then paid for part of Durett's care. Mrs. Durett continued to pay for the major portion of Durett's needs until January 1983, when she notified Pleasant Manor that she could no longer afford Durett's care. The authorities in Nevada, New Jersey and Bucks County, Pennsylvania all denied funds for Durett on the ground that he was not a resident of their state.

Durett filed this action against officials of the Pennsylvania Department of Public Welfare (DPW) and of the Bucks County Department of Mental Health-Mental Retardation (Bucks County), alleging that Pennsylvania's regulation that provided that persons who became incapable of forming an intent before the age of 21 were residents of the state in which their parents resided violated the Rehabilitation Act of 1973 and discriminated against persons who exercise their right to interstate travel. The complaint also claimed that the Pennsylvania rule established an irrebuttable presumption in violation of the due process clause and violated the Pennsylvania Mental Health/Mental Retardation Act, 50 Pa. Stat. Ann. § 4101-4704 (1969).

Throughout the litigation, counsel for DPW took the position that Durett should join New Jersey or Nevada, which Durett's counsel declined to do, although they urged the defendants to file a third-party complaint against the absent states. Counsel for DPW apparently concluded that such joinder was not possible under the federal Rules of Civil Procedure.

In the meantime, DPW officials requested their counterparts in New Jersey to take responsibility for Durett's care. Ultimately, New Jersey agreed to fund Durett's care at Pleasant Manor as of February 1, 1984 after determining that Durett's parents maintained their residence in New Jersey during their stay in Venezuela. After additional negotiations, the Pennsylvania DPW agreed to reimburse Pleasant Manor $15,000 for ...


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