JOSHUA LOGAN,
Appellant

v.

CHRISTOPHER MARKS

Appeal from the Order dated May 8, 1997, docketed May 9, 1997, Courtof Common Pleas, Allegheny County, Civil Division at No. AR 94-8648.

BEFORE: TAMILIA, JOHNSON and BROSKY, JJ.

Filed December 31, 1997
OPINION BY
      JOHNSON, J.:

We here consider the propriety of a trial court's denial of statutoryattorney's fees to a prevailing plaintiff in litigation under the CivilRights Act of 1871, 42 U.S.C. § 1983 (1994). Following a three-daytrial, a jury awarded Joshua Logan $275.00 in compensatory damages and$1.00 in punitive damages in a case involving alleged assault and batteryand violation of federal constitutional civil rights. No post-trial motionswere filed and judgment was entered on the verdict. Logan's counsel fileda Petition for the Award of Attorney's Fees and Litigation Expenses pursuantto 42 U.S.C. § 1988 (1993). The trial court denied the petition.Logan appeals and we now reverse.

The procedural facts leading up to the Petition for the Award of Attorney'sFees can be gleaned from the certified record. On November 23, 1994, JoshuaLogan filed his Complaint against Christopher Marks, a City of Pittsburghpolice officer. The Complaint set forth that Logan was employed as a bicyclemessenger with Triangle Messenger Service and that Marks was acting inthe course of his employment and under color of law at the time materialto the complaint. These facts were admitted by Marks in his Answer. TheComplaint alleged that on September 27, 1994, Logan was operating his bicycleon Stanwix Street in the City of Pittsburgh when Marks "seized [him] andflung him to the street, resulting in injuries to Logan, loss of wages,medical expenses and pain and suffering." Marks denied these allegations.In a separate count, Logan alleged that the assault and battery allegedin the first count was perpetrated without probable cause to believe thatLogan was engaged in criminal activity or acting in violation of law andthat, therefore, the assault and battery violated Logan's rights underthe Fourth and Fourteenth Amendment. Marks denied these allegations aswell.

Following limited discovery, the matter was heard by a board of arbitrators,which awarded Logan $8,000.00 in damages. Marks appealed to the Court ofCommon Pleas of Allegheny County. Logan was granted leave to amend hiscomplaint to add a prayer for relief for the award of attorney's fees andlitigation costs. The matter then proceeded to trial before a Special Master,John Carlin, and a jury, which returned the verdict in favor of Logan.Logan asserts in his Brief, and it is not disputed by Marks, that duringthe course of trial, evidence was presented that Logan had been paid worker'scompensation benefits for both the medical expenses and wage loss thathe suffered as a consequence of the September 1994 incident.

The Civil Rights Attorney's Fees Awards Act of 1976, P.L. 94-559, 90Stat. 2641, codified at 42 U.S.C. § 1988 (hereinafter §1988), provides:

. . . In any action or proceeding to enforce a provision ofsections 1981, 1982, 1983, 1985 and 1986 of this title, . . . the court,in its discretion, may allow the prevailing party, other than the UnitedStates, a reasonable attorney's fee as part of the costs.

Clearly, the trial court does not have the discretion to deny attorney'sfees merely because the recovery is disproportionate to the fee claimed.City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686,2694, 91 L.Ed.2d 466, 479 (1986)(plurality); Washington v. PhiladelphiaCounty Court of Common Pleas, supra, at 1042. Nor is the courtpermitted to consider solely the amount of the requested fee in consideringthe reasonableness of the defendant's liability therefor. See Rivera,supra, at 580 n.11, 106 S.Ct. at 2697 n.11, 91 L.Ed.2d at 483 n.11("[T]he government cannot litigate tenaciously and then be heard to complainabout the time necessarily spent by the plaintiff in response.")(internalquotations omitted). However, a comparison of the size of the award tothe objectives of the litigation is highly relevant to determining thedegree of success obtained, the critical inquiry in determining the reasonablenessof a requested fee. Farrar, supra, at 114, 113 S.Ct. at 574,121 L.Ed.2d at 505; Hensley v. Eckerhart, 461 U.S. 424, 440, 103S.Ct. 1933, 1943, 76 L.Ed.2d 40, 54 (1983)(plurality).

The Honorable Joseph James relied upon the U.S. Supreme Court's decisionin Farrar, supra, in denying Logan's request for attorney'sfees. In Farrar, the United States Court of Appeals for the FifthCircuit had ruled that the award of nominal damages established that aplaintiff was not a "prevailing party" as required for a fee to be awardedunder 42 U.S.C. § 1988. See id. at 107-08, 113S.Ct. at 571, 121 L.Ed.2d at 500-01. On appeal, the United States SupremeCourt clarified that a party who gains a judgment entitling it to nominaldamages is a prevailing party. The Court affirmed the denial of fees, however,explaining that, though "the `technical' nature of a nominal damages awardor any other judgment does not affect the prevailing party inquiry, itdoes bear on the propriety of fees awarded under § 1988." Id. at114, 113 S.Ct. at 574, 121 L.Ed.2d at 505. The Court observed that theaward of nominal damages "highlights the plaintiff's failure to prove actual,compensable injury." Id. . at 115, 113 S.Ct. at 575, 121 L.Ed.2dat 506. Based on this view, the Court held that "[w]hen a plaintiff recoversonly nominal damages because of his failure to prove an essential elementof his claim for monetary relief, see Carey [v. Piphus, 435U.S. 247,] 256-57, 264, [98 S.Ct. 1042, 1048-49, 1053, 55 L.Ed.2d 252,260, 265 (1978)], the only reasonable fee is usually no fee at all." Farrar,supra, at 115, 113 S.Ct. at 575, 121 L.Ed.2d at 506.

Federal courts interpreting Farrar have concluded that the failureto prove that an established constitutional violation caused harmto the plaintiff is the controlling factor in denying an attorney's feeto an otherwise prevailing plaintiff. Carter v. Burch, supra,at 264-65; Cramblit v. Fikse, 33 F.3d 633, 635-36 (6th Cir. 1994)(percuriam). See Loggins v. Delo, supra, at 369 ($25,000 feeaward proper, under Farrar, where plaintiff recovered $102.50 inactual damages). Consequently, a complete denial of attorney's fees appearsonly in cases in which a party was awarded one dollar. See, e.g.,Pino v. Locascio, 101 F.3d 235 (2d Cir. 1996); Morales v. Cityof San Rafael, supra, at 363 & n.6 (citing cases); Carter,supra; Cramblit, supra; Cartwright v. Stamper,7 F.3d 106 (7th Cir. 1993); Willis v. City of Chicago, 999 F.2d284 (7th Cir. 1993). But see O'Connor v. Huard, 117 F.3d12, 17-18 (1st Cir. 1997)(award of attorney's fees was proper even thoughdamages were not awarded where suit achieved other client objectives andserved public interest); Cabrera v. Jakabovitz, 24 F.3d 372 (2dCir. 1994)(same). Here, while Logan's recovery was not substantial, itwas not a nominal award. See Carey, supra, at 266-67,98 S.Ct. at 1054, 55 L.Ed.2d at 266-267. See also Johnson v.Eaton, 80 F.3d 148, 152 (5th Cir. 1996)($500 judgment sufficient torequire counsel fee under Farrar); Loggins, supra.Therefore, it was error for the trial court to conclude that Logan's attorneysecured only a technical victory for purposes of applying Farrar. Moralesv. City of San Rafael, supra, at 363 ("the Farrar exceptionis inapplicable to cases in which the damages are not nominal . . .").

On the basis of Farrar, and the guidance provided by the severalfederal courts of appeal that have interpreted it, we conclude that thetrial court's complete denial of an attorney's fee was based on an inaccurateview of the law and beyond its discretion. The verdict in favor of Loganwas more than a technical victory. He established that Officer Marks'swrongful conduct caused him actual, compensable injury. Further, the awardof damages in this case serves an important purpose of 42 U.S.C. §1983 of deterring Officer Logan and his department from resorting to forcewithout adequate justification. See Morales, supra,at 364. We do not decide whether Logan is entitled to the full fee requested.See Hensley, supra, at 440, 103 S.Ct. at 1943, 76L.Ed.2d at 54 ("A reduced fee award is appropriate if the relief, howeversignificant, is limited in comparison to the scope of the litigation asa whole."). The trial court retains the primary responsibility for determiningthe reasonable fee for the legal services performed on Logan's behalf.Farrar, supra, at 114-15, 113 S.Ct. at 574, 121 L.Ed.2d at505. Accordingly, we reverse the order of the trial court and remand fora determination of a reasonable fee in light of the success achieved byLogan and the purposes of § 1988.

In fashioning an appropriate attorney's fee award, the trial court shouldbegin by multiplying the "number of hours reasonably expended on the litigation. . . by a reasonable hourly rate." Washington, supra, at1035 (internal quotations and citation omitted). This computation producesa figure termed the "lodestar" which is "strongly presumed to yield a reasonablefee." Id. In this case, there is no basis for exclusion of hoursdevoted to the case on the basis of Logan's failure to prevail on specificclaims. See Hensley, supra (attorney's fees shouldbe reduced in proportion to time spent on distinct claims which do notproduce finding of liability). Here, Logan prevailed on either of two analogousstate and federal theories of liability and he successfully persuaded thejury that Marks's conduct caused him actual injury and was a product ofa disregard of Logan's rights sufficient to justify an award of punitivedamages. Further, the additional time devoted by Logan's counsel to defendingthe arbitration award should not be excluded as an unreasonable expenditureof resources. See Rivera, supra.

Once a reasonable figure is reached, the court retains the discretionto adjust it in light of the level of success achieved. Indeed, we reiteratethat the degree of success is the critical consideration in determiningan appropriate fee award. Farrar, supra, at 114-15, 113 S.Ct.at 574, 121 L.Ed.2d at 505. The court may not lower the fee to achieveproportionality with the size of the verdict. Washington, supra.The court may consider the relationship between the damages sought andthose recovered. In this vein, we observe that the fact of a worker's compensationrecovery, if established, and the subrogation rights of third parties shouldinform the court as to the practical level of success that Logan couldhave achieved. The degree of success cannot be measured simply in monetaryterms, as the jury's verdict also involves the vindication of an invaluableconstitutional and civil right. Also, the court should factor the deterrenteffect of the jury's verdict and the potential public benefit inherentin one individual's challenge to police misconduct. Finally, the courtshould consider the purpose of § 1988 to cure the inadequacy of privatefee arrangements to ensure vigorous enforcement of civil rights. SeeRiverside, supra. To this end, an appropriate fee shouldbe one sufficient to attract competent counsel who might otherwise rejectsimilar claims. Id.

We turn to address Logan's subsidiary arguments that § 1988entitles him to payment of ordinary litigation expenses, and that he isentitled to interest on his ultimate award under § 1988. By its literalterms, § 1988 empowers a court to require the shifting of attorney'sfees to the losing party. The authority to shift litigation costs mustbe derived from some other statutory authority. West Virginia UniversityHospitals v. Casey, 499 U.S. 83, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991).Accordingly, Logan's entitlement to payment of his litigation costs isgoverned by the same principles applicable to all civil matters beforeour courts of common pleas. Logan has cited no authority indicating hisentitlement to interest upon a § 1988 attorney's fee award.

Order REVERSED. Case REMANDED. Jurisdiction RELINQUISHED.

Judge Tamilia files a Concurring Statement.

CONCURRING STATEMENT BY
     TAMILIA, J.:

I concur in the result. I differ with the majority in that it has gonefurther than I would in instructing the trial court as to how to establishan appropriate award of counsel fees. The verdict in this case was nominalat best and the claim for counsel fees can only be considered excessivein relation to the success achieved. I believe the trial court should notbe restricted in the exercise of his discretion in establishing an appropriatefee.