“[W]e conclude that, at least under the circumstances presented in this case, challenges to The Clean Streams Law aspects of the issuance of Section 401 Certifications are ‘proceedings pursuant to this act’ for purposes of the fee-shifting provisions of Section 307 [of The Clean Streams Law].”
How later courts described this case
- “[W]e conclude that, at least under the circumstances presented in this case, challenges to The Clean Streams Law aspects of the issuance of Section 401 Certifications are ‘proceedings pursuant to this act’ for purposes of the fee-shifting provisions of Section 307 [of The Clean Streams Law].”
- rejecting as untenable party's argument that formal judgment was required to find party prevailed
- “[T]he [Board’s] application of the Kwalwasser criteria in the present matter was too narrow in view of the broad language of Section 307 and the public policy favoring liberal construction of fee-shifting provisions . . . .”
- “the practical relief sought . . . should be considered when characterizing [the requesting party] as [a] prevailing part[y]” for the purpose of determining when a party is entitled to fees and costs under Section 4(b) of the Surface Mining Conservation and Reclamation Act”
Written by the judges who cited it.
The opinion
CONCURRING AND DISSENTING OPINION
Justice EAKIN.
I respectfully dissent from Part II of the Majority Opinion.
In Part II, the majority concludes “the EHB’s application of the Kwalwasser criteria ... was too narrow in view of the broad language of [§ ]307 and the public policy favoring liberal construction of fee-shifting provisions----” Majority, at 1005. The majority does not reject the Kwalwasser test for a new one, but concludes “it is within the scope of the EHB’s prerogative to channel its discretion in awarding attorneys’ fees based upon considerations such as the Kwalwasser criteria when there has been no finding of bad faith or vexatious conduct.” Id., at 1003. Under that conclusion, tribunals and courts may rely on Kwalwasser criteria, but appear authorized to use other unspecified criteria. This could lead to the application of different criteria to each case, which could lead to inconsistent case law and results.
Regarding the prevailing party prong of the Kwalwasser test, the majority, citing a dissenting opinion, states it agrees with the Commonwealth Court “that the practical relief sought by the Townships should be considered when characterizing them as prevailing parties for purposes of the Kwalwasser test. Accord Buckhannon Bd. and Care Home, Inc. v. West *173 Virginia Dept. of Health and Human Resources, 532 U.S. 598, 633 , 121 S.Ct. 1835 , 149 L.Ed.2d 855 (2001) (Ginsburg, J., dissenting).... ” Id., at 1004-1005. The EHB’s conclusion the townships were not prevailing parties was in accordance with the majority opinion in Buckhannon:
Numerous federal statutes allow courts to award attorney’s fees and costs to the “prevailing party.” The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not.
Buckhannon, at 600, 121 S.Ct. 1835 . While the prevailing party prong under Kwalwasser is part of a court-made test as opposed to statutory text examined in Buckhannon, this appears to be a distinction without a difference, as the wording of the issue above mirrors the issue and circumstances here. While the Commonwealth Court noted the Costs Act defines “prevailing party” in a way that could lead to a favorable result for the townships, see 71 P.S. § 2032, the action here was for attorney’s fees under § 307. The townships brought a separate action for attorney’s fees under the Costs Act.
Ultimately, I cannot conclude the EHB erred when it applied the Kwalwasser criteria and implicitly followed an interpretation of the prevailing party prong in accordance with Buckhannon. I would reverse the Commonwealth Court’s decision and reinstate the EHB’s decision. This would leave the Kivahvasser test in place and the prevailing party prong would track Buckhannon’s holding. In all other respects, I join the majority.