IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

DOLORES (DEE) BARRETT : 

 : 

 V. : CIVIL ACTION - LAW 

 : 

THE GREATER HATBORO CHAMBER NO. 02 -cv-4421 

OF COMMERCE, INC.; JOHN J.(BUD) : 

AIKEN, AND MICKEY GLANTZ : JURY TRIAL DEMANDED 

MEMORANDUM OF LAW SUPPORTING

PLAINTIFF'S ANSWER OPPOSING PREMATURE MOTION 

TO PRECLUDE RECOVERY OF ATTORNEY FEES

I. INTRODUCTION 

 This is a frivolous and harassing motion, as it is prematurely filed prior to trial, before 

Plaintiff has prevailed on the merits of this case. Defendants have sought a continuance of the 

trial date without success, and now seek to impede Plaintiff's trial preparation by requiring her 

counsel to waste the limited time available researching and responding to this untimely motion. 

This issue could have been included in defendants' summary judgment motion, if a pretrial ruling 

had been desired. Now that summary judgment is denied and the requested continuance of this 

long delayed trial denied, defense counsel comes up with this unnecessary premature motion, for 

no other purpose than to harass and impede plaintiff's counsel, a sole practitioner with limited 

trial preparation time. 

II. DISCUSSION 

 Pennsylvania law authorizes Courts to award counsel fees in proper circumstances where 

there may not be express statutory authorization. 

 In Tallon v. Liberty Hose Co. No. 1, 336 Pa. Super. Ct. 530, 485 A. 2d 1209 (1984) an 

employment discrimination case under § 1983 and the Pennsylvania Constitution Equal Rights 

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Amendment, Article 1 § 28. the parties negotiated a consent decree which was silent on the issue 

of attorney fees, though they had been requested in her initial Complaint. The trial court denied 

plaintiff-appellant's subsequent petition for counsel fees under the Civil Rights Attorney's Fees 

Awards Act of 1976, 42 U. S. C. § 1988. The Superior Court reversed and remanded, relying on 

Maine v. Thibutot, 448 U. S. 1, 100 S. Ct. 2502 (1980), in which the Supreme Court of the 

United States affirmed a decision by the Supreme Judicial Court of Maine which concluded that 

prevailing parties were entitled to attorney's fees under 42 U. S. C. § 1988 even though there 

was no specific state authorization for payment of legal fees. Also, the opinion refers to 

comments in the Congressional Record describing the purpose of the Civil Rights Attorney Fees 

Awards Act of 1976 as "authorizing the award of a reasonable attorney's fee in actions brought in 

State or Federal Courts." This law applies not only to cases brought under §1983, which 

requires state action, or "action under color of state law,' which is not present in the instant case, 

but also under § 1981, § 1982 and §1985, all of which reach private action. Federal civil rights 

law, statutory and constitutional, is a floor beneath which states may not go. But states may 

provide greater protections for their citizens than is available under Federal law, as is the case 

with the PERA, which has no Federal Constitutional counterpart. 

 The Pennsylvania Supreme Court in Commonwealth v. Edmunds, 526 Pa. 374, 389-90; 

586 A. 2d 887, 894-95 (1991) stressed that courts may accord greater protection of individual 

rights under the state constitution than the "minimum guarantees established by the United States 

Constitution." Edmunds concerned Article 1 §8 of the Pennsylvania Constitution, which 

protects citizens against governmental searches and seizures, and was a precursor to the Fourth 

Amendment. Constitutional protection against unreasonable searches and seizures existed in 

Pennsylvania more than a decade before adoption of the federal constitution, and 15 years prior 

Case 2:02-cv-04421-PBT Document 54 Filed 09/13/2005 Page 2 of 5
to promulgation of the Fourth Amendment. Commonwealth v. Sell, 504 Pa. 46, 63, 470 A. 2d 

457, 466 (1983). Article I §28 protects citizens from deprivation or abridgement of their rights 

under law regardless of their gender, and has been part of Pennsylvania's organic law for 34 

years. To argue that the state Legislature must enact an attorney fee statute in order for a citizen 

to obtain counsel fees for deprivation of her rights based on her gender is to place the Legislature 

above the Constitution, which was adopted by the electorate. 

 In Tallon, supra, the fact that plaintiff appellant based most of her claim on state law did 

not lessen her reliance on federal law, and since her litigation resulted in a decree in her favor 

she was eligible for an award of counsel fees under § 1988. The Tallon Court noted that the 

United States Supreme Court in Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 88 S. 

Ct. 964 (1968) stated: "One who succeeds in obtaining an injunction under [section 1983] should 

ordinarily recover an attorney's fee unless special circumstances would render such an award 

unjust." 390 U. S. at 403, 88 S. Ct. at 966. Piggie Park was decided 8 years before Congress 

enacted 42 U. S. C. § 1988 specifically providing for counsel fees. Law and public policy favor 

an award of counsel fees to the prevailing plaintiff. Hensley v. Eckerhart, 461 U. S. 424, 103 S. 

Ct. 1988 (1983). See also, El Club Del Barrio Inc. v. United Community Corporations, Inc., 

735 F. 2d 98 (3d Cir. 1984), where the Court held that the failure of parties to provide for 

attorneys fees in a settlement agreement was no bar to the prevailing plaintiff's application to the 

court for counsel fees after the case was settled. 

 In Rodulfa v. United States of America, 295 F. Supp. 28 (D. D.C. 1969), a petition for 

counsel fees was granted to claimant in the absence of statutory authority where claimant had 

successfully prosecuted a suit against the U. S. under the National Service Life Insurance Act 

and for compensation for the death of a veteran. The court reasoned that in its discretion, the 

Case 2:02-cv-04421-PBT Document 54 Filed 09/13/2005 Page 3 of 5
court in appropriate cases could allow counsel fees for successful plaintiff; unless the court 

permitted counsel fees, many veterans would be unable to secure counsel to bring such actions, 

because obviously there was no reason why counsel would work gratuitously. 

Galfand v. Equitable Life Assurance Society of the U. S., 61 Pa. D. & C. 2d 407 (Phila. 

C. C. P. 1973) allowed plaintiff's attorneys to obtain payment of counsel fees for recovering 

worker's compensation benefits where there was no statutory authorization for payment of 

counsel fees by the subrogated insurer, under a 1961 amendment to the law. The insurer argued 

no counsel fee was legally payable. The court held the lawyers were entitled to recover fees 

from the insurers which benefited from their services, even in the absence of an agreement or a 

statute so providing. Pennsylvania R. A. P. 2744 provides for reimbursement of counsel fees for 

time spent recovering counsel fees. Sampaolo v. Cheltenham Twp. Zoning Board, 157 Pa. 

Commw. 164, 629 A. 2d 229 (1993). 

. III. CONCLUSION 

 Defendants' premature Motion to Preclude Counsel Fees should be denied and dismissed 

with prejudice, and defendants should be required to pay $600 reasonable counsel fees for 

researching and briefing this issue unnecessarily, a week before trial. 

 Respectfully submitted, 

 ___________________________ 

 Anita F. Alberts Esq. #28086 

 Counsel for Plaintiff Dolores Barrett 

 The Atrium Suite 2 West 

 301 South Main Street 

 Doylestown PA 18901 

 (215) 340-0700 FAX (215) 340-2747 

Case 2:02-cv-04421-PBT Document 54 Filed 09/13/2005 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

DOLORES (DEE) BARRETT : 

 : 

 V. : CIVIL ACTION - LAW 

 : 

THE GREATER HATBORO CHAMBER NO. 02 -cv-4421 

OF COMMERCE, INC.; JOHN J.(BUD) : 

AIKEN, AND MICKEY GLANTZ : JURY TRIAL DEMANDED 

CERTIFICATION OF SERVICE

ANITA F. ALBERTS ESQUIRE hereby certifies that a true and correct copy of Brief Opposing 

Motion to Preclude Counsel Fees was served to counsel for defendants at the address below by 

First Class Mail, on the date written below. 

 Sidney L. Gold Esquire 

 Sidney L. Gold Associates 

 Eleven Penn Center 

 1835 Market St. Suite 515 

 Philadelphia PA 19103 

____________________(date) _____________________________ 

 Anita F. Alberts Esquire 

Case 2:02-cv-04421-PBT Document 54 Filed 09/13/2005 Page 5 of 5