Commonwealth v. York County Solid Waste and Refuse Authority

No. 1451 C.D. 1984 (Pa. Commw. Ct. July 3, 1985)

The court holds that parties that intervened in a consent decree between the Pennsylvania Department of Environmental Resources and a landfill owner and negotiated significant improvements to the decree in favor of area residents are entitled to attorneys fees and costs under § 601(8) of Pennsylvania's Clean Streams Law. The court finds reasonable the request for fees and costs from one intervenor, the township where the landfill is located. The court finds, however, that the request from the other intervenor, an organization of local citizens, must be reduced. The court holds that the time spent by counsel preparing the fee application may not be included in the lodestar fee. The court also holds that application of a multiplier of two to the lodestar fee is not warranted. There was no evidence that counsel was at risk in recovering fees. Further, the quality of counsel's work, the bulk of which consisted of negotiations, was not sufficiently exceptional to justify an increase in the lodestar value.

Counsel for Plaintiff
George Jugovic, Ass't Counsel
Department of Environmental Resources
503 Executive House, P.O. Box 2357, Harrisburg PA 17120
(717) 787-9035

Joel R. Burcat, R. Stephen Shibla, Henry W. Rhoads
Rhoads & Sinon
P.O. Box 1146, Harrisburg PA 17108
(717) 233-5731

Counsel for Defendant
Robert M. Strickler
Kagan, Strickler, Lerman & Solymons
2250 E. Market St., P.O. Box 1442, York PA 17405
(717) 575-7602

[16 ELR 20405]

Rogers, J.:

Memorandum and Order

Section 601(8) of The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.601(g) empowers courts in issuing final orders in actions pursuant to the Act to award costs of litigation, including attorney and expert witness fees "to any party, whenever the court determines such award is appropriate." Intervening plaintiffs, Hopewell Township, in which the landfill of the defendant York County Solid Waste and Refuse Authority (Authority) is located, and Humans Opposed to a Polluted Environment (HOPE), an organization of citizens living near the landfill, has each filed an application for costs and counsel fees incurred in the captioned proceedings.

As the result of pollution of their well, neighbors of the Authority named Smeltzer consulted the Harrisburg law firm of Rhoads and Sinon, whose fees and costs are the subject of HOPE's present application. The Smeltzers, at Rhoads and Sinon's direction, filed with the Pennsylvania Department of Environmental Resources (DER) and its federal counterpart, the Environmental Protection Agency, the statutory sixty day notice of their intention to file suit against the Authority. Just before the expiration of the period of notice, DER and the Authority entered into and filed in this court an Agreement for Amicable Action and Consent Decree, which at the instance of the then parties, we approved on May 22, 1984.

HOPE and Hopewell Township petitioned to intervene pursuant to Section 615 of the Solid Waste Management Act, 35 Pa. C.S. §§ 6018-615 permitting intervention in any action brought pursuant to that Act by citizens having interests adversely affected. The position of HOPE and Hopewell Township was that the Consent Decree was inadequate to protect their interests already adversely affected by the Authority's landfill. Intervention was allowed July 2, 1984 and from that date until late January, 1985 the parties to the suit, DER, the Authority, HOPE and Hopewell, Township negotiated changes and additions to the Consent Decree, with successful result in the form of an Agreement and Supplemental Cosent Decree, which this court has also approved. The Supplemental Decree significantly improved the original Consent Decree in the interests of residents in the vicinity of the landfill. It also avoided expensive and time-consuming litigation. Among other improvements added by the Supplemental Decree is provision of a trust fund for the benefit of residents affected by contamination from the landfill to be financed by the Authority. The principal of the fund will be $500,000.00 in 1995. As the result of an initial payment and accruals, the present principal of the trust fund is $110,000.

We are empowered by statute to award, and the circumstances indicate that we should award, reasonable costs of litigation including counsel fees to HOPE and Hopewell Township, whose intervention and participation in settlement negotiations brought about significant improvements in the original Consent Decree.

Hopewell Township requests that we order the payment of its costs of litigation including counsel fees in the total amount of $13,981.84, comprised of the following items:

Fees of township solicitor

who expended 70.2883 hours

at $60 per hour 4,217.30

Cost of telephone calls made

by the solicitor 92.39

Fees of Eugene E. Dice, Esquire,

an environmental specialist —

63.3 hours at $75 per hour 4,770.00

Costs of duplication of

documents — 81.15

Cost of engineering services of

Richard M. Bodner engaged

by the township 4,821.00

$13,981.84

These litigation costs and charges are, in our judgment, accurately computed and reasonably in amount. They will be awarded to be paid to Hopewell Township out of the funds of the trust established by the Supplemental Decree, as the parties desire.

HOPE asks for an award in the amount of the as yet unbilled counsel fees and costs of the Harrisburg firm of Rhoads & Sinon in the amount of $56,470.00. This is based on a proposed "lodestar fee" of $28,235, being the product of 371.25 hours expended by several lawyers of the firm at hourly rates ranging in amount from $75.00 to $130 per hour. HOPE suggests that the lodestar fee should be multiplied by two to produce $56,470.00, because, as it asserts, one of the Rhoads and Sinon associates took the lead in the negotiations among the parties, drafted and redrafted the various legal documents produced in the negotiations and scheduled the negotiating sessions of the parties which were held in the Rhoads and Sinon's Harrisburg offices. Most of the 371.25 hours claimed are billed at $75.00, the charge made for the time of the associate who lead the negotiations.

The general principles for determining court awards of reasonable counsel fees at the expense of a losing party, where such are permitted by law, are described in Lindy Brothers Builders, Inc. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973), (Lindy I), and Lindy Brothers Builders, Inc. v. American Radiator and Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (Lindy II). Where counsel charges by hourly rate, the basic fee is the hourly charge for counsel's time multiplied by the number of hours spent on the matter in litigation. The product of this calculation is called in this class of case the "lodestar," that is, the indicated fee to be provided that the hourly charge is found to be reasonable and the hours reported are found to have been actually spent. All time spent on routine matters is a factor subsumed under the lodestar concept. Lindy II. Time spent on matters other than on the advancement of the client's cause may not be included. Time spent in work on the application for an award of counsel fees should not be included in the lodestar fee. Lindy II. The lodestar fee is subject to be increased or decreased but the court should give its reasons for increasing or decreasing the lodestar fee. Lindy I.

HOPE's requested award for lodestar fee in our judgment must be reduced because it contains by our count twenty-two charges for research and the writing of briefs concerning attorneys' fees. The total of these charges is $3,027.50. These appear in counsel's briefing memo under the dates:

[16 ELR 20406]

10/19/84

10/21/84 through 10/30/84

11/1/84 through 11/6/84

12/17/84

1/15/85

1/16/85

1/17/85

1/21/85

1/22/85

HOPE's counsel provided no explanation of these items at our hearing. We take them therefore to be related to the subject of counsel's own fees. As noted, the case authorities hold that time spent by counsel preparing his fee application are not proper charges against the fund created in the litigation, here a trust fund for neighbors of the landfill. All of the participants in this proceeding suggest that the trust fund should be the source of payment of costs and fees.

We will deduct the sum of $3,027.00 from the suggested lodestar of $28,235.00 and fix the lodestar at $25,208.00.

HOPE asks us to multiply the lodestar fee by two. An increase of the fee over the lodestar amount may be awarded (1) on account of the contingent nature of the representation, sometimes expressed as the risk measured by the initial probability or likelihood of success and (2) on account of the quality of the work done, that is, the skill applied by counsel.

This record would not support a finding that HOPE's counsel was at such risk in recovering fees that we should increase the lodestar amount for this reason. The evidence was that there were 150 persons involved with HOPE. We are told only that they were persons concerned with the landfill. We are given no information whatsoever as to their ability or willingness to pay fees when counsel undertook the work. Indeed, we are not told whether the payment of fees was to be contingent upon success in representing them or what would constitute success. No written contingent fee agreement was put in evidence and no description of an oral agreement was provided. HOPE's counsel has characterized the original Consent Decree as quite inadequate. If this were so, the initial probability or likelihood of its being improved by the addition of at least three additional counsel does not appear to us to be remote.

Nor are we impelled to increase the lodestar fee based on the quality of representation given HOPE. This is not to say that counsel did not represent HOPE well. Our conclusion is founded first on the fact that the litigation aspect was limited. There was no trial, or preparation for trial. Concerning pleading, HOPE was not a party to the notice of intention to bring suit. The Application to Intervene and Exceptions to the original decree seem to have been the principal if not the only pleadings filed. The bulk of the work was in negotiation, in which HOPE's counsel, although in a leading position, was supported by the able and experienced Hopewell Township solicitor and a recognized expert in environmental law engaged by the township. The combined fees of these two lawyers are less than a third of HOPE's counsel's suggested lodestar. While, as we have said, we do not denigrate counsel's work and recognize the improvements made to the original Consent Decree we cannot avoid the observation that the work of all counsel was negotiation, a routine activity in a lawyer's occupation. In making an allowance for quality of work in determining the compensation of an attorney, we must keep in mind that the attorney will receive an otherwise reasonable compensation for this time under the figure arrived at from the hourly rate. Lindy I. The case of Municipal Authority of the Town of Bloomsburg v. Commonwealth of Pennsylvania, 527 F. Supp. 982 (M.D. Pa. 1981), is instructive on the point of the increase of lodestar rates for quality of representation. The trial judge in that case was able to observe and described in detail counsel's performance in a complex and difficult trial over a long period of time. We were of course not witness to the settlement negotiations which comprised this litigation. We will not increase the lodestar fee.

HOPE also asks for expenses incurred by counsel in the amount of $3,364.19 and the fee of an engineering expert who billed HOPE $2,224.50 which we find reasonable and allow.

Order

AND NOW, this Third day of July, 1985, costs of litigation including attorney and expert witness fees are awarded, payable from the trust fund created by the Supplemental Consent Decree filed in this matter, as follows.

To Hopewell Township, $13,981.84 for the following uses and purposes:

Fees of Gilbert B. Malone, Esquire $ 4,217.30

Expenses of Gilbert G. Malone, Esquire 92.39

Fees of Dice & Childe, Esqs. 4,770.00

Expenses of Dice & Childe, Esqs. 81.15

Charges of Martin & Martin, Inc.

engineers 4,821.00

$13,981.84

To Humans Opposed to a Polluted Environment (HOPE) for the following uses and purposes:

16 ELR 20405 | Environmental Law Reporter | copyright © 1986 | All rights reserved

Fees of Rhoads and Sinon, Esqs. $25,208.00

Expenses of Rhoads and Sinon, Esqs. 3,364.19

Charges of Gannett Fleming,

engineers 2,224.50

$30,796.69