Jаnet Tallón appeals from the order of the Court of Common Pleas of Dauphin County denying her motion for an award of counsel fees pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988.
The litigation that ultimately resulted in this appeal commenced on July 31, 1980 when Janet Tallón, appellant herein, filed a complaint against appellee Liberty Hose Company, a volunteer fire company in the Borough of Williamstown, alleging that it had denied her application for membership solely on the basis of her sex. Plaintiff-appellant sought both declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 аnd the Fourteenth Amendment to the United States Constitution, as well as the Equal Rights Amendment to the Pennsylvania Constitution, Art. 1, section 28. More specifically, appellant asked that the court declare appellee’s rejection of her application a violation of 42 U.S.C. § 1983 and the Pennsylvania Equal Rights *534 Amendment. Appellant also requested that the court order Liberty Hose to admit her to active membership and to adopt a procedure which would ensure that applicants are not rejected on the basis of their sex.
After some discovery, the parties negotiated a consent decree which was approved by the Honorable William W. Caldwell on March 8, 1982. The parties agreed, among other things, that appellant would be admitted as a probationary member of the hose company, and if she fulfilled the probationary requirements, which applied to all members, she would be admitted as a permanent member. The consent decree further stated that the constitution and by-laws of the hose company would be amended to specify that no person would be rejected from membership on the basis of gender. Liberty Hose made no аdmission that it had violated federal law.
Although appellant had requested an award of attorney’s fees in her original complaint, the consent decree made no mention of counsel fees. On July 7, 1982, appellant’s counsel contacted the hose company’s attorney in an еffort to reach an agreement on the question of attorney’s fees. The negotiations were unsuccessful and in October of 1982, appellant filed a petition for award of counsel fees pursuant to the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988. Liberty Hose filed a motion to quash appellant’s pеtition. A hearing was held on March 29, 1983 before the Honorable John C. Dowling and on June 13, 1983, Judge Dowling issued an order denying appellant’s motion for an award of counsel fees. This appeal timely followed. 1
*535 Appellant presents us with five issues, all of which address the question of whether the lower court erred in refusing to grant her motion for an award of counsel fees pursuant to 42 U.S.C. § 1988. 2 In her first issue, appellant asks whether she met all of the requirements for an award under that statute. Section 1988 provides in pertinent part:
In any action or proceeding to enforce a provision of sections ... 1983 ... of this title ... the court, in its discretion may allow the prevailing party, ... a reasonable attorney’s fee as part of the costs.
The lower court held, and we agree, that appellant met the requirements of the Act in that she was the prevailing party in a section 1983 cause of actiоn. 3
Despite the fact that appellant met the requirements of the Act, the lower court held that the case presented “special circumstances” requiring a denial of an award.
*536
This standard was articulated in
Newman v. Piggie Park Enterprises, Inc.,
The lower court found that the existence of a number of such “special circumstances” dictated the denial of an award of counsel fees in the instant case. The court first рoints to the fact that while the original complaint requested attorney’s fees, the consent decree made no provision for such an award.
In view of the fact that [appellee] gave up the right to challenge [appellant’s] charges in a court of law, for us to order an award of attorney’s fees would alter the consequences of that compromise \i.e., the consent decree]. Thus, the first special circumstance leading to a determination that attorney’s fees should be denied is [appellee’s] reasonable belief that by giving up its right to its day in court the issues raised by both parties ended by the Consent Decree.
Lower ct. op. at 4.
Similarly, the court found as a second special circumstance that appellant’s counsel deliberately refrained from discussing the matter of attorney’s fees throughout the settlement negotiations. Appellee argues that this tactic resulted in unfair surprise and prejudice to Liberty Hose, and thus counsel fees must be denied.
The issue embodied in these two “special circumstances” was recently addressed in
El Club Del Barrio, Inc. v. United Community Corporations, Inc.,
*537 waived its rights to attorneys fees by its conduct during settlement negotiations. Specifically, defendants argued that in an original draft of thе settlement agreement plaintiff had provided that dismissal of its action would be without prejudice to its right to seek attorneys fees, but when defendants objected to this provision, the plaintiff withdrew it. The final settlement agreement and consent order thus simply provided for dismissal of the underlying action with prеjudice and was silent on the issue of attorneys fees. In defendant’s submission, this silence, coupled with the conduct at the settlement negotiations, shows that the plaintiff waived its right to attorneys fees.
Id. at 99-100.
The Court of Appeals for the Third Circuit held that the failure of the parties to a civil rights suit to have providеd for attorney’s fees in a written settlement agreement does not create a “special circumstance” depriving a prevailing plaintiff in the underlying action of its right to reasonable attorney’s fees under section 1988, even where the parties discussed but were unable to agree on attorney’s fees during settlement negotiations. “Rather, the burden is on the losing party to show that the settlement agreement clearly waived the statutory right to attorneys fees.” Id. at 99.
We agree with the
El Club Del Barrio
court that the failure to provide for fees in the consent decree is not a special circumstance which overcomes the
Newman
presumption that ordinarily a prevailing plaintiff should be awarded attorney’s fees. Applying
El Club Del Barrio
to the instant case, we find that appellant’s counsel’s failure to discuss attorney’s fees throughout the settlement negotiations,
4
and the failure to provide for them in the written
*538
settlement agreement, does not bar recovery of such fees. The law and public policy favor an award of fees to the prevailing plaintiff.
Hensley v. Eckerhart,
Also, case law indicates that an award of attorney’s fees does mot “alter the consequences” of the consent decree, as stated by the lower court. Rather, a request for attorney’s fees under section 1988 is collatеral to the main cause of action. “[A] motion for attorney’s fees is unlike a motion to alter or amend a judgment. It does not imply a change in the judgment, but merely seeks what is due because of the judgment.”
White v. New Hampshire Department of Employment Security,
Furthermore, given the holding in
El Club Del Barrio,
we аre of the opinion that the fact that appellee may have been “surprised” by appellant’s request for counsel fees does not bar an award. The lower court intimated that the four month delay between the filing of the consent decree and the request for fees (together with counsel’s failure to discuss fees during negotiations) resulted in unfair surprise and prejudice to the appellee. The court distinguished
White v. New Hampshire Department of Employment Security,
Thus, the lower court erred in denying the request for counsel fees on the ground that it resulted in unfair surprise and prejudice to the appellee. 5
The third “special circumstance” cited by the lower court was appellee’s inability to pay. A number of district and appellate courts have discussed whether a lack of funds on the part of the losing party bars the prevailing party from recovering an award of attorney’s fees. In
Sharrock v. Harris,
Although the award of attorneys’ fees is expressly discretionary, Congress clеarly intended that section 1988 be construed liberally and that successful plaintiffs be awarded attorneys’ fees except under “special circumstances” (citations omitted). Lack of funds on the part of a public agency would not seem to be one of the “special circumstances” Congress had in mind, since Congress clearly contemplated that governmental bodies, which are usually short of funds, would often be the defendants against which attorneys’ fees would be assessed.
Id. at 915.
Another district court stated: “[A] prevailing plaintiff should not have to shoulder the cost of obtaining his civil
*540
rights because the discriminating public body is poor.”
Stanwood v. Green,
In
Cohen v. West Haven Board of Police Commissioners,
In the instant case, we are of the opinion that an award of fees cannot be deniеd on the basis of appellee’s perceived inability to pay. While appellee’s financial condition may be a factor for the court to examine in determining the amount of fees to be awarded, it does not serve as an absolute bar to such an award.
Because we feеl that the lower court erred in denying appellant’s motion for counsel fees, we must remand the case for a determination of the proper amount of fees to be awarded.
Order reversed and case remanded to the lower court for proceedings not inconsistent with this oрinion. Jurisdiction relinquished.
Notes
. Appellee argues that under Pa.R.C.P. 1518, appellant was required to file exceptions to Judge Dowling’s opinion of June 13, 1982 and that her failure to do so results in a waiver of all the issues raised in this appeal. We note, however, that the trial court’s order from which the instant aрpeal was filed did not comply with the Pa.R.C.P. 1517 requirements of an adjudication. While the court wrote an extensive opinion, neither the opinion nor the accompanying order contained any language which would indicate that the order was a decree nisi, or that the parties were required to file exceptions to perfect a right of appeal.
Barton v. Penco,
. It is clear that attorney’s fees can be awarded pursuant to section 1988 despite the fact that this case was brought in state court. In
Maine v. Thiboutot,
. Appellee avers that appellant’s claim against appellee did not involve any right guaranteed by the Constitution or laws of the United States and therefore she cannot rеcover counsel fees under 42 U.S.C. § 1988. We find this argument to be meritless. The lower court found, and we agree, that appellant stated a § 1983 claim in her complaint. More specifically, she alleged that appellee’s actions denied her due process and equal protection of the laws of the United States. The fact that appellant based much of her claim on state law does not mitigate her simultaneous reliance on the protection of 42 U.S.C. § 1983. Since the litigation resulted in a decree in her favor, she is eligible for an award of attorney’s fees pursuant to § 1988.
. As appellant points out in issue three of her brief, not only should counsel’s failure to discuss fees at settlement negotiations not bar recovery of an award of fees, but, more importantly, it would have been improper for counsel to negotiate fees while attempting to settle thе case.
See Prandini v. Nat’l Tea Co.,
. We recognize that the lower court did not have the benefit of the Third Circuit Court’s El Club Del Barrio decision when it considered this case.