Swietlowich v. Bucks County, 79-1243

Citation620 F.2d 33
Decision Date28 April 1980
Docket NumberNo. 79-1243,79-1243
PartiesHelen D. SWIETLOWICH, Administratrix of the Estate of Joseph A. Swietlowich, Deceased and Helen D. Swietlowich, in her own right, Appellant, v. COUNTY OF BUCKS and Township of Bristol and Harry Merker and Sgt. Stanley Martin and Sgt. Walter Hughes and Patrolman H. J. McDonough, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Robert A. Godwin, Newtown, Pa., for appellees Martin, Hughes and McDonough.

Harry Lore, Martin Heller, Philadelphia, Pa., for appellant.

Donald B. McCoy, Newtown, Pa., for appellee Harry Merker.

Before ADAMS, ROSENN and WEIS, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

Counsel for plaintiff have presented us with a petition for attorney's fees incurred in the appeal from an adverse result in a 42 U.S.C. § 1983 suit. The district court had entered judgment in favor of the defendants based upon a jury's answers to interrogatories that the statute of limitations barred recovery. We vacated the judgment because of error in the jury instructions and remanded for a new trial. Swietlowich v. County of Bucks, 610 F.2d 1157 (3d Cir. 1979). Because the plaintiff is not a prevailing party at this stage in the litigation, counsel are not entitled to fees under 42 U.S.C. § 1988, and their petition will be denied.

42 U.S.C. § 1988 provides that the court may allow "the prevailing party" a reasonable attorney's fee as part of the cost. As we noted in Vasquez v. Fleming, 617 F.2d 334 (3d Cir. 1980), an award under the statute is "not automatic" but is discretionary with the court and may be made only to a prevailing party. Id. at 336.

We have had occasion in two recent cases to discuss the question of who is a prevailing party in factual situations where the answer was not self-evident. In Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978), we said that the court should analyze the results obtained by the petitioning party on particular claims for relief, regardless of the number of claims or parties, and that a prevailing party is one who fairly can be found to have "essentially succeeded" on a claim. Id. at 487. Moreover, a petitioner "cannot be treated as a prevailing party to the extent he has been unsuccessful in asserting a claim." Id.

The discussion continued in Bagby v. Beal, 606 F.2d 411, 415 (3d Cir. 1979), as we noted that the definition "focuses not on the substantive merits of the plaintiff's claims but rather on the relief ultimately received by the plaintiff." If he essentially succeeds in obtaining the relief he seeks in his claims on the merits, the plaintiff becomes a prevailing party. Comparable language is found in Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978): plaintiff is a prevailing party if he "succeed(s) on any significant issue in litigation which achieves some of the benefit the part(y) sought in bringing suit." In Bagby the award of counsel fees was approved because, while the appeal was pending, the plaintiff had received the hearing she contended was required by the fourteenth amendment and "(n)o future proceedings involving the merits of the controversy will change this result . . . ." 606 F.2d at 415.

In the case at bench, by contrast, the earlier opinion of this court did nothing to advance the plaintiff's claim for relief. We affirmed the dismissal of two defendants and vacated the judgment against the plaintiff solely because of error in the instructions given to the jury. The plaintiff, therefore, is no closer to a verdict in her favor than she was before the first trial began, and there is no assurance that she will ever receive damages, the only relief requested. At this point, therefore, the plaintiff has not prevailed within the meaning of 42 U.S.C. § 1988.

In so ruling, we find ourselves in agreement with the rationale in Bly v. McLeod, 605 F.2d 134 (4th Cir. 1979). There, the court found that plaintiffs were not prevailing parties even though they claimed certain procedural victories, including a judgment in the court of appeals vacating the district...

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  • NAACP v. Wilmington Medical Ctr., Inc.
    • United States
    • U.S. District Court — District of Delaware
    • December 21, 1981
    ...of their cause in the district court. Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Swietlowich v. County of Bucks, 620 F.2d 33, 34 (C.A.3, 1980).30 To the same effect is Bly v. McLeod, 605 F.2d 134 (C.A.4, 1979) cited with approval both in Hanrahan and Swietlowi......
  • Bishop v. Committee on Professional Ethics and Conduct of Iowa State Bar Ass'n
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 17, 1982
    ...627 F.2d 669 (3d Cir. 1980) (per curiam), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981); Swietlowich v. County of Bucks, 620 F.2d 33 (3d Cir. 1980) (per curiam). Applying these standards to the instant case, we believe that it must be concluded that Bishop was a prevaili......
  • N. A. A. C. P. v. Wilmington Medical Center, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 8, 1982
    ...his counsel fees to the prevailing party under § 1988. 446 U.S. at 758-59, 100 S.Ct. at 1989-1990. See also Swietlowich v. County of Bucks, 620 F.2d 33 (3d Cir. 1980). The plaintiffs' appellate victory on the private cause of action issue falls between Bradley and Hanrahan. Plaintiffs claim......
  • Institutionalized Juveniles v. Secretary of Public Welfare
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 26, 1985
    ...action." 568 F.Supp. at 1027. This endorsement "did nothing to advance the plaintiff's claim for relief," Swietlowich v. County of Bucks, 620 F.2d 33, 34 (3d Cir.1980), and thus the Supreme Court's resolution of the case did not provide plaintiffs with any benefits they had not already rece......
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