The opinion of the court was delivered by: HIGGINBOTHAM
The instant case is another in the massive assault upon creditor prejudgment remedies which have flowed from the watershed decisions of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969), and Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972).
Plaintiffs challenge the constitutionality of Pennsylvania possessory lien law under which a bailee performing services with respect to the goods of another person is entitled to retain custody and to sell those goods to satisfy his charges for the services performed. Pursuant to 42 U.S.C. § 1983 they seek to enjoin this practice in the Commonwealth of Pennsylvania as a violation of the Fourteenth Amendment due process standards of the United States Constitution because, they claim, under Pennsylvania law the bailee is legally permitted to take the property of the lien debtor without invoking the legal process and without affording the property owner the opportunity to be heard before an impartial tribunal. I find it unnecessary to reach the constitutional issues upon which plaintiffs predicate their right to relief in this Court, for I find that upon the undisputed facts of this case the plaintiffs have not established that defendants do have possessory liens on their property under Pennsylvania law.
The named plaintiffs own automobiles presently in the possession of defendant towing companies which refuse to surrender possession of them until certain towing and storage charges are paid. John Shumate alleges that he was in the habit of parking his automobile on a vacant lot located on Lombard Street between 20th and 21st Streets in Philadelphia, Pennsylvania. Allegedly, he had parked there regularly during May and June of 1973, and during that period the lot was not posted with any signs warning that parking was not permitted there or that vehicles parked there without authorization would be towed away at the owner's expense. On July 7, 1973, Shumate again left his car at the Lombard Street lot, and when he returned two days later on July 9th, his automobile was gone and the lot was posted with signs warning that parking was prohibited. Subsequently, Shumate learned that his automobile had been towed away by Ruffie's Towing Service (hereinafter "Ruffie's") and that his automobile was being held at its place of business. Shumate was informed by Ruffie's that in order to recover his automobile he must first pay a towing fee to Ruffie's of $44.50 plus $4.00 per day in storage charges. Shumate has not paid the fee and his automobile is still in Ruffie's possession.
On June 4, 1973, Thomas A. Younger was involved in an automobile accident when the car he was driving collided with another vehicle at the intersection of West Chester Pike and Five Points Road, West Goshen Township, Chester County, Pennsylvania. Younger claims that the accident was the fault of the other driver. The police arrived soon after the accident accompanied by a truck from West End Towing Service (hereinafter "West End"), and while Younger spoke to the police officer about the accident, West End towed his car away from the intersection to its place of business. Younger alleges that he did not consent to the tow, and West End, not disputing this allegation, claims that it was ordered to tow the vehicle by the West Goshen police department. Younger was informed by West End that the bill for towing was $15.00 and the storage charges were $53.00 as of July 10, 1973. Younger did not pay the charges and his automobile has remained in the possession of West End. On July 13, 1973, Younger went to West End's place of business to remove some parts from his vehicle and he was refused entry to do so. Thereafter, in an attempt to use his own brand of self help repossession, Younger entered the West End property and was arrested by the local police for criminal trespass. He was ultimately convicted on the charge.
The plaintiffs have brought a class action under 42 U.S.C. § 1983 claiming that the statutory basis for defendants' retention of plaintiffs' vehicles violates the due process clause of the United States Constitution.
The original complaint cited the Act of December 14, 1863, P.L. 1127, §§ 1, 3; 6 P.S. §§ 15, 17
as the legal authority for defendants' retention of the automobiles, but these statutes are by their terms sales provisions which grant those having liens for carriage, storage, and labor under existing law the right to satisfy that lien through sale of the goods subject to the lien; they do not create a statutory lien. Also these provisions were repealed in 1953 insofar as they set forth sale procedures for carriers and warehousemen. 12A P.S. § 10-102. Consequently, the original complaint was dismissed and plaintiffs were granted leave to file an amended complaint.
In their amended complaint plaintiffs again cited 6 P.S. §§ 15, 17 but in the alternative they cited 12A P.S. §§ 7-307, 7-308
as the target of their constitutional challenge. 12A P.S. § 7-308 is a sales provision superceding 6 P.S. §§ 15, 17 as to carrier's liens and it, like its predecessor, does not by its terms create such liens. 12A P.S. § 7-307 does create a statutory lien in favor of carriers upon goods covered by a bill of lading.
Plaintiffs have moved for a preliminary injunction, a class determination, and a partial summary adjudication on the issue of the constitutionality of 6 P.S. §§ 15, 17, and 12A P.S. §§ 7-307, 7-308. Defendants have filed cross motions 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 ...