No. 93 March Term, 1979, Appeal from Order of the Superior Court of Pennsylvania, filed January 18, 1979, at No. 242 April Term, 1978, which Reversed in part the Judgment entered September 29, 1977, of the court of Common Pleas of Butler County, Pennsylvania, Civil Division, at A.D. § 76-199 in Book 107, Page 9.
Armand R. Cingolani, Jr., Cingolani & Cingolani, Butler, for appellants.
Reed J. Davis, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Flaherty, J., joined by Larsen, J., files a dissenting opinion.
This case involves the common law doctrine of possessory liens.*fn1 On March 25, 1975, appellants William F. and Mary E. O'Dell purchased a tractor from Anderson Sales Service, Inc. under an installment sales contract and security agreement. The contract and agreement were then assigned to appellee Associates Financial Services Company, Inc. In February 1976, William O'Dell drove the tractor in the course of business to Texarkana, Texas where it became disabled. O'Dell requested appellant A. G. Turley, whose business in Zelienople, Pennsylvania included truck towing, repairs, and storage, to drive to Texas and haul the tractor back to Pennsylvania. Turley complied with this request, incurring expenses of $2,772.
Meanwhile the O'Dells defaulted on the payments owed Associates under the installment sales contract. Associates, finding the tractor in Turley's possession, brought this action in replevin against Turley and the O'Dells. Turley counterclaimed that he was entitled to a possessory lien on the tractor for expenses incurred in hauling and storing the tractor. The trial court awarded Associates possession of the tractor, but granted Turley a possessory lien on the tractor for the claimed expenses of $2,772. The Superior Court, 262 Pa. Super. 584, 396 A.2d 1324, reversed the trial court in part, holding that a possessory lien was not validly
imposed upon the tractor because Associates never consented to Turley's services. We agree and accordingly affirm.*fn2
"[I]t is a well-settled principle of the common law that he who by labor, skill, or materials adds value to the chattel of another . . . has a possessory lien thereon for the value of his services and may retain the chattel in his possession until the same be paid." Brown on Personal Property 394-95 (3rd ed. 1975); see, e. g., Saxton v. Gemehl, 72 Pa. Super. 177 (1919). At its inception, the common law possessory lien was restricted to those circumstances where a lien creditor rendered his services upon the implied promise of the debtor to repay him. Since the action of assumpsit was not recognized at early common law, the possessory lien provided such creditors an extra-judicial remedy to collect their debt. Consistent with this limited purpose, the lien did not arise where the creditor had an action at law upon an express contract. When the action of assumpsit on contracts implied in fact became available, however, the possessory lien was not abolished, but for reasons which are not clear was instead extended to creditors under express contracts. See Brown on Personal Property, supra at 394.
Possessory liens are fundamentally consensual in nature, arising from an agreement, either express or implied, between the owner of the goods and the artisan who renders services for those goods. See, e. g., Younger v. Plunkett, 395 F.Supp. 702, 707 (E.D.Pa.1975) (interpreting Pennsylvania law). That possessory liens arise exclusively in the context of express or implied consent is long established in the jurisprudence of this Commonwealth. As this Court stated in Meyers & Bro. v. Bratespiece, 174 Pa. 119, 121, 34 A. 551, 551 (1896) (quotation omitted):
"Whenever a workman or artisan by his labor or skill increases the value of personal property placed in his possession to be improved he has a lien upon it for his proper charges until paid, but in order to charge a chattel with this lien, the labor for which the lien is claimed must
have been done at the request of the owner or under circumstances from which his assent can be reasonably implied. It does not extend ...