for summary judgment and West End has filed a counterclaim against Younger for its towing and accrued storage charges in the amount of $168.00 as of August 29, 1973. Plaintiffs pray that the Court order the return of the Younger and Shumate vehicles and enjoin their sale. Also, on behalf of the class they pray that 6 P.S. §§ 15, 17, or in the alternative 12A P.S. §§ 7-307, 7-308 be declared unconstitutional, and that defendant class be enjoined from retaining or selling any property under these statutes in praesenti and in futuro.
Although plaintiffs contend that the possessory liens asserted by defendant towing companies contravene due process standards, the substantial preliminary issue must be resolved of whether the defendants are legally entitled to such liens under the circumstances which plaintiffs allege. This is a question of Pennsylvania law. Of course federal courts approach the resolution of constitutional issues with wise reluctance and as a general policy will resolve legal controversies upon non-constitutional grounds in preference to making constitutional adjudications. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 347, 56 S. Ct. 466, 482, 483, 80 L. Ed. 688 (1936) (Brandeis, J., concurring). But the state law issues of this case not only present a preferred basis of adjudication, they must be resolved to determine whether the plaintiffs have a constitutional claim, for if defendants are not holding plaintiffs' property pursuant to any state law, then the constitutional dispute is not a true case or controversy but merely an abstract legal question upon which the Court is being urged to render an advisory opinion. Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246 (1911). Particularly in view of the plaintiffs' uncertain position as to the state law authority for defendants' lien it is appropriate that I focus on the legal basis upon which the liens are allegedly asserted. Plaintiffs challenge two aspects of Pennsylvania possessory liens: (1) the lien itself which can arise by statute or at common law and (2) the lien creditor's right of sale to enforce his lien which was not recognized at common law and is exclusively a statutory right. The right of sale provisions (6 P.S. §§ 15, 17; 12A P.S. § 7-308) are not limited in their application to statutory liens, and thus, although plaintiffs have not attacked common law liens per se as unconstitutional, their challenge to the sale provisions makes necessary not only a determination of whether defendants have the statutory lien cited, but also, whether they have a lien under common law principles.
Possessory Liens at Common Law
Possessory liens are fundamentally consensual in nature and arise from some agreement, either express or implied, between the owner of goods and his bailee who renders some service with respect to those goods. At common law the right of a bailee to assert a lien meant the right to physically retain custody of the goods, even upon demand of the owner for their return, until the bailee was compensated for his services.
At its inception the common law lien was limited to those circumstances where a lien creditor undertook to render his services upon the implied promise of the lien debtor to pay him. Since at early common law the action of assumpsit was not recognized, the lien provided such creditors an extrajudicial remedy to collect their unliquidated debt, and consistent with this limited purpose, the lien did not arise where the lien creditor had an action at law upon an express contract to pay a sum certain. However, when the action of assumpsit on contracts implied in fact became available, the creditor's possessory lien was not abolished, and it was eventually extended to creditors who were party to an express contract as well as an implied contract. Mathias v. Sellers, 86 Pa. 486 (1878), citing Chase v. Westmore, 5 Maule & Sel. 180 (K.B. 1816), Brown, Personal Property at 510, 511.
The consensual quality of the transaction which gave rise to possessory liens at early common law has been held an indispensable element of the common law possessory lien recognized by Pennsylvania courts, and this principle is nowhere more clearly stated than in Meyers v. Bratespiece, 174 Pa. 119, 34 A. 551 (1896). In Meyers the plaintiff contracted with one Abraham Harris to have cloth made into coats at thirty-five cents per coat. Harris then contracted with the defendant without plaintiffs' knowledge or consent, to have the cloth made into coats at fifty cents per coat and thereafter absconded after collecting part of the money due from plaintiff. After the coats were made, defendant refused to deliver them to plaintiff and claimed a possessory lien, and plaintiff brought an action in replevin. The court held:
"We agree with the learned court below that Bratespiece had no lien for his labor on the goods of the plaintiffs that he received from Harris, their bailee. There was no contractual relation between him and the owners.