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December 11, 1974


Fogel, J.

The opinion of the court was delivered by: FOGEL


 Plaintiffs, in these consolidated actions, assert that the retention and sale elements of the "repairmen's lien" created by the common law and statutes of the Commonwealth of Pennsylvania *fn1" violate the Fourteenth Amendment, to the extent that lienors are permitted to deprive persons of the use or ownership of their property without prior judicial determination of the validity of the underlying claim.

 Before us are those aspects of plaintiffs' motions for "partial summary judgment" (pursuant to Rule 56(c) of the Federal Rules of Civil Procedure), *fn2" which raise the dual issues of the constitutionality of the challenged case and statutory law, and of the right to possession of property which may be subject to the repairmen's lien. Damage claims against the individual defendants have been held in abeyance, pending a ruling on these motions.

 Discussion of the issues and the reasons in support of our conclusions in this matter follow:

 1. Procedural History of the Consolidated Actions and Summary of the Facts

 The procedural history of the litigation is complex because of the addition and elimination of various parties during these proceedings. Accordingly, we shall summarize only those claims of plaintiffs who are still parties to this action; the controlling facts are set forth in the affidavits submitted in support of the motions for partial summary judgment:

 1. Plaintiff Gilbert Parks took his 1963 Chrysler automobile to Ford's Speed Shop, owned by defendant Henry Ford, a/k/a "Mr. Ford", on or about February 4, 1972. Parks claims that he authorized the replacement of a transmission seal, a job which he estimated would cost about Thirty Dollars ($30.00). After a delay of more than two weeks, he was notified that the work was completed, but that the bill (which included replacement of a convertor, a pump, and a rotor), would be Two Hundred and Three Dollars ($203.00). Parks protested these charges, and Ford retained possession of the automobile. After this action was brought in Federal Court, Ford started suit in the Municipal Court of Philadelphia, and recovered a judgment against Parks in the amount of One Hundred and Twenty-five Dollars ($125.00). Parks paid the amount of the judgment and regained possession of the automobile. Although Parks has no present claim with respect to the quality of the repairs, he still seeks damages for the alleged improper detention of his automobile.

 2. Plaintiff Hattie Ellerbe had her 1960 Chevrolet towed to Bradley's Automobile Service, operated by defendant Alfred Bradley, Sr., on or about January 30, 1972. Ellerbe claims that she merely asked for an estimate for work to be performed, and did not authorize Bradley to repair the vehicle. Bradley later notified her that he had actually made the repairs, and that the charges totaled Four Hundred and Ninety-three Dollars and two cents ($493.02). Ellerbe refused to pay this amount; Bradley retained the automobile, and notified her, through counsel, that he was asserting a repairmen's lien under the applicable Pennsylvania statute. Thereafter, the automobile was placed on the street by Bradley, and when located by Ellerbe it had been stripped of its wheels and other parts. While the detention issue is moot, Ellerbe continues to press her damage claim.

 3. Plaintiff Lewis Williams brought his 1966 Chevrolet Corvair to Erwin Chevrolet, Inc., late in the month of April of 1972. Williams claims that he arranged to purchase a starter motor elsewhere, and that Erwin agreed to install this motor for a labor charge of Twelve Dollars ($12.00). In fact, Erwin installed a rebuilt motor, and billed Williams for Forty-eight Dollars and fifty-five cents ($48.55). Williams refused to pay this charge; Erwin retained possession of the automobile, and notified him that unless the full amount was paid, the automobile would be placed with a storage and salvage company. Williams was joined as a plaintiff in this action on June 26, 1972, and shortly thereafter he regained possession of his vehicle by agreement of counsel. The automobile is no longer in Williams' possession, but he continues to press his damage claim for improper detention.

 4. Anne Dillon, mother of plaintiff Lois Dillon, purchased a 1966 Chevrolet from defendant North Penn Motors, Inc., on or about June 25, 1971. *fn3" North Penn had granted to plaintiff a thirty-day warranty for mechanical defects, during which period, North Penn had agreed to pay fifty percent (50%) of the cost of necessary repairs. Shortly after the automobile was purchased, plaintiff had trouble with the transmission. After a delay, due to a labor dispute at North Penn Motors, plaintiff's automobile was repaired, at a cost to her of approximately One Hundred and Ninety-three Dollars ($193.00). However, she was billed for an additional amount of approximately One Hundred and Ninety-eight Dollars ($198.00) for replacement of wheels and tires which had been stolen from the automobile while in storage at the North Penn Motors used car lot, before execution of the work. Dillon refused to pay the entire amount claimed, and North Penn Motors retained the automobile. On June 26, 1972, Judge Masterson ordered the return of the automobile to Dillon, pending final disposition of the case, subject to entry of a bond in the amount of One Hundred Ninety-two Dollars and eighty cents ($192.80). Dillon furnished the bond, and still has possession of the automobile. Her continued right to possession, and her substantial claim for detention damages are still in dispute.

 5. Plaintiff William Muldowney, Jr. brought his 1962 Triumph motorcycle to the shop of defendant, International Cycles, Inc., during the month of September, 1972. Muldowney authorized repairs of a gasket and an oil pump, conditioned upon an outside cost of Fifty Dollars ($50.00). After considerable delay, Muldowney was notified on or about April 1, 1973, that the motorcycle had been completely rebuilt and that the bill was in excess of Four Hundred Dollars ($400.00). Muldowney refused to pay this amount, and International retained possession of the motorcycle. After Muldowney began this action, International offered to return the motorcycle; plaintiff subsequently learned that International lost its lease, and that his motorcycle had been reduced to shattered pieces of metal that were strewn about the shop, now owned by one Edward Labelle. No responsive pleadings have ever been filed by International. Although plaintiff has not recovered possession of his motorcycle, he clearly would not accept the scrap that is the residue; his claim for damages, rather than for the right to continued possession, is not only proper, but the only sensible one that he could assert under the circumstances.

 2. Summary of the Challenged Common Law and Statutory Provisions

 The challenged repairmen's lien has evolved through case law and statutory enactments. In Pennsylvania, one who repairs a chattel, at the request of the owner, or of his or her authorized agent, has a common law lien which gives that person the right to retain possession of the chattel until payment is received. Wilson v. Malenock, supra at n. 1, 128 Pa. Super. at 547. The classic description of the common law lien is that given by Mr. Justice Woodward in a case which was decided by the Supreme Court of Pennsylvania in 1878:

 It is clear, however, that the common law lien confers upon the lienor only the right of retention of the chattel until the underlying debt is paid; at common law no right to sell exists. That remedy is a creature of statute. R. Brown, The Law of Personal Property § 119 (2d. ed. 1955); Smyth v. Fidelity and Deposit Company of Maryland, 125 Pa. Super. 597, 602, 190 A. 398 (1937), aff'd per curiam 326 Pa. 391, 192 A. 640, 111 A.L.R. 481. *fn4" Indeed, the sale of the chattel by the lienor is a conversion, if such sale is executed without a statute authorizing foreclosure by this means, or if there is a failure on the part of the seller to comply meticulously with all of the procedural and substantive provisions of the governing statute. Brown, supra, at § 119; Bernstein v. Hineman, 86 Pa. Super. 198, 201 (1925); Boys Novelty Suit Co. v. Garfield, 76 Pa. Super. 365 (1921).

 The Pennsylvania Legislature accorded lienors the additional remedy of enforcement of the common law lien by means of sale through its enactment of § 1 of the Act of May 7, 1925, P.L. 557, 6 P.S. § 11. *fn5" This provision requires thirty days' written notice to the owner of the chattel, coupled with a statement of the amount of indebtedness for which the lien is asserted, and permits the lienee an action in replevin within that period of time to regain possession of the property. Section 2 of the Act, 6 P.S. § 12, *fn6" specifies the contents which the notice to the owner must contain, requires that it be verified by oath of the lienor, and mandates ten days' notice in advance of public sale. Section 3, 6 P.S. § 13, *fn7" deals with disposition of the proceeds after sale, and requires the lienor to account for the residue to the owner of the property, or, if no demand is made, to account to the treasurer of the county. Section 4, 6 P.S. § 14, *fn8" provides that the sale shall be conclusive with respect to the title of the property conveyed, in the same manner as if the sale had been conducted by the sheriff or constable.

 It is this scheme of retention and sale, that does not require lienors to go to Court to adjudicate their rights, which plaintiffs claim is constitutionally defective. They argue that the entire rubric constitutes state action and, hence, denies property owners that due process of law to which they are entitled.

 We deal first with the preliminary matters of jurisdiction and standing.

 3. Jurisdiction and Standing

 Jurisdiction is properly invoked under 28 U.S.C. § 1343(3), because plaintiffs contend that the alleged unlawful detention, which is the gist of their complaint, occurred under "color of . . . State law, statute, ordinance, regulation, custom or usage." *fn9" Gibbs v. Titelman, 502 F.2d 1107, 1109 (3d Cir. 1974).

 In order to assess plaintiffs' standing to maintain this action, it is necessary to distinguish their challenge with respect to the detention feature of the common law lien from their attack upon the sale provisions of the statute. See Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 382, 386-387 (2d Cir. 1973).

 Each of the named plaintiffs claims to have suffered injury as a result of the purported unlawful detention of his or her vehicle pursuant to the common law lien. No vehicle, however, is presently detained. *fn10" Even in the absence of detention, we are satisfied that the substantial damage claims, presently outstanding, create a justiciable controversy among these parties. The Supreme Court was confronted with a similar problem in the case of Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969). Even though the late Representative Adam Clayton Powell had actually been seated in the 91st Congress, the Court held that his claim for back salary was still viable, and hence met the requisite test of justiciability. In so holding, the Court said:

After certiorari was granted, respondents filed a memorandum suggesting that two events which occurred subsequent to our grant of certiorari require that the case be dismissed as moot. On January 3, 1969, the House of Representatives of the 90th Congress officially terminated, and petitioner Powell was seated as a member of the 91st Congress. 115 Cong. Rec. H22 (daily ed., January 3, 1969). Respondents insist that the gravamen of petitioners' complaint was the failure of the 90th Congress to seat Petitioner Powell and that, since the House of Representatives is not a continuing body and Powell has now been seated, his claims are moot. Petitioners counter that three issues remain unresolved and thus this litigation presents a "case or controversy" within the meaning of Art. III: (1) whether Powell was unconstitutionally deprived of his seniority by his exclusion from the 90th Congress; (2) whether the resolution of the 91st Congress imposing as "punishment"a $25,000 fine is a continuation of respondents' allegedly unconstitutional exclusion, see HR Res. No. 2, 91st Cong., 1st Sess., 115 Cong. Rec. H21 (daily ed., January 3, 1969); and (3) whether Powell is entitled to salary withheld after his exclusion from the 90th Congress. We conclude that Powell's claim for back salary remains viable even though he has been seated in the 91st Congress and thus find it unnecessary to determine whether the other issues have become moot.
Simply stated, a case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. See E. Borchard, Declaratory Judgments 35-37 (2d ed. 1941). Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers of America, v. Mitchell, 330 U.S. 75, 86-94, 91 L. Ed. 754, 765-770, 67 S. Ct. 556 (1947); 6A J. Moore, Federal Practice P 57.13 (2d ed. 1966).
* * *

 Id. at 495-497 (footnotes omitted)

 Powell v. McCormack was followed in Collins v. Viceroy Hotel Corporation, 338 F. Supp. 390, 393 (N.D. Ill. 1972), and Klim v. Jones, 315 F. Supp. 109, 117 (N.D. Cal. 1970), in which those two district courts held that the return of property detained pursuant to an innkeepers' lien did not render plaintiffs' constitutional challenge moot, in light of the live claims for damages arising from the alleged unlawful detention.

 Here, plaintiff Dillon alone seeks compensatory damages of Fifty-five Hundred Dollars ($5,500.00), a claim which is not frivolous in light of her allegation that she paid Nine Hundred and Two Dollars ($902.00) on account of her automobile loan and lost at least one job as a result of deprivation of her car during the eleven month period she was denied possession before Judge Masterson's Order of June 26, 1972. *fn11"

 Accordingly, we hold that these plaintiffs have established a justiciable controversy under the rule of Powell v. McCormack with respect to the detention feature of the repairmen's lien.

 A more subtle question is presented by plaintiffs' argument against the statutory sale provisions. No vehicle is presently detained under the common law lien; hence, it could be asserted that no lien is subject to enforcement by sale, because § 1 of the Act, 6 P.S. § 11, is expressly limited to that period of time "while such property is in the hands of the said person, corporation, firm, or copartnership contributing such work and material ".11a Close analysis of the ...

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