# Solebury Township v. Department of Environmental Protection

> Supreme Court of Pennsylvania · August 20, 2007 · 593 Pa. 146

URL: https://www.frixlaw.com/law-library/cases/9649531

## Case

- **Full name:** SOLEBURY TOWNSHIP v. DEPARTMENT OF ENVIRONMENTAL PROTECTION and Department of Transportation. Appeal of Department of Transportation; Buckingham Township v. Department of Environmental Protection and Department of Transportation. Appeal of Department of Transportation; Solebury Township v. Department of Environmental Protection and Department of Transportation. Appeal of Department of Environmental Protection; Buckingham Township v. Department of Environmental Protection and Department of Transportation. Appeal of Department of Environmental Protection;
- **Court:** Supreme Court of Pennsylvania
- **Decided:** August 20, 2007
- **Citations:** 593 Pa. 146; 928 A.2d 990; 2007 Pa. LEXIS 1672
- **Precedential status:** Published
- **Opinion:** Concurring in part by Eakin
- **Judges:** Saylor, Former, Nigro, Newman, Cappy, Castille, Baer, Eakin
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9649531

## How later opinions describe it (automated extraction)

- rejecting as untenable party's argument that formal judgment was required to find party prevailed
- reversing the Board based on a misapplication of the standard, but not rejecting the standard

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9649531. Public record. Not legal advice.