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August 15, 1980

Terry MAYS

The opinion of the court was delivered by: NEALON


May the Commonwealth of Pennsylvania authorize the removal of an unlicensed, uninspected and unattended motor vehicle without prior notification to its owner? May the Commonwealth condition release of the vehicle upon payment of towing and storage costs without first affording the owner an opportunity to contest the justifications for the removal? These are the dispositive issues presented to the court on stipulated facts and cross-motions for summary judgment. After careful consideration of the parties' respective arguments, and close examination of the pertinent authorities, I have concluded that the seizure of plaintiff's vehicle without prior notice was not, under the facts of this case, unconstitutional, but that retention of the automobile for non-payment of towing and storage fees without an opportunity for a hearing to determine the propriety of the removal violated the Fourteenth Amendment's proscription against governmental appropriation of private property without due process.


 This lawsuit focuses on the interplay of several sections of the Pennsylvania Vehicle Code. *fn1" It seems therefore appropriate to precede a recitation of the material facts with a detailed examination of the pertinent statutory provisions.

 A. Statutory Background

 Under section 102 of the Vehicle Code, 75 Pa.Cons.Stat.Ann. § 102 (Purdon 1977), a motor vehicle "without a valid registration plate or certificate of inspection left unattended on or along a highway *fn2" ..." is considered "abandoned." *fn3" Section 3352(c) authorizes removal of an abandoned vehicle "to a nearby garage or other place of safety" at the direction of any police officer. *fn4" Where possible, notice by certified mail and an opportunity for "explanation" are to precede the removal of an abandoned vehicle; if the identity of the owner of the apparently abandoned vehicle cannot be ascertained, the required notice may be secured to the vehicle. See 75 Pa.Cons.Stat.Ann. § 3352(d) (Purdon 1977). *fn5" Thus, where practicable, an owner has the opportunity to forestall removal of the vehicle, and his failure to respond to the notice is but further evidence of abandonment.

 Once the vehicle has been towed, the owner is responsible for towing and storage costs, plus a fee of $ 25.00. See 75 Pa.Cons.Stat.Ann. § 7306 (Purdon 1977). *fn6" Notification required by section 7305 apprises the owner of his "right to reclaim the vehicle within 30 days after the date of the notice at the place where the vehicle is being held by the salvor, upon payment of all towing and storage charges and the fee authorized in section 7306." *fn7" 75 Pa.Cons.Stat.Ann. § 7305(b)(3) (Purdon 1977) (emphasis added). Section 7305(b) further provides that the notice shall "(s)tate that the failure of the owner or lienholder to reclaim the vehicle is deemed consent by the owner to the destruction, sale or other disposition of the abandoned vehicle...." *fn8"

 The legislation does not provide any avenue other than payment of the authorized fees by which the owner can gain release of his vehicle. Specifically, there is no provision for an impartial hearing to determine the validity of the removal. After it has been towed the owner must pay the statutorily created ransom or forfeit his vehicle.

 B. Factual Background

 Plaintiff was confronted with this choice of remitting the authorized fees or losing his car. On December 30, 1978, plaintiff's 1975 Dodge Colt was parked in the 800 block of Myrtle Street, Scranton, Pennsylvania, in the vicinity of his home. The car did not bear a registration plate, and the certificate of inspection had expired. In addition, the auto was missing its left front fender. *fn9"

 The removal of the license plate from the car prevented the Scranton City Police from readily identifying plaintiff as its owner. Although apparently not required by statute, see 75 Pa.Cons.Stat.Ann. § 3352(d)(1) (Purdon 1977), efforts were made to ascertain the owner of the automobile by running the Vehicle Identification Number (VIN) through the "CLEAN" Systems both in Harrisburg, Pennsylvania and Washington, D.C. *fn10" These attempts proved unsuccessful because of an error in the VIN. Thus, since plaintiff could not be identified as the owner of the "75 Dodge Colt, he was not notified by certified mail that the car was considered abandoned under the Vehicle Code and therefore subject to removal. Nor was the notice that the vehicle may be towed as abandoned secured to the car. Such notice was not made because the police had determined that the neighborhood in which plaintiff's car had been parked was unsafe and a designation that the car was considered abandoned might constitute an invitation for vandalism. Thus, the "75 Dodge Colt was towed by defendant Frank Gallucci's Two Tone Towing Service at the direction of a member of the defendant Scranton City Police Department without plaintiff having received any prior notice or an opportunity to explain why the car should not be removed. *fn11"

 Sometime during the evening of December 30, 1978, plaintiff discovered his car was missing and contacted the Scranton City Police Department. The desk sergeant advised plaintiff that his car had been considered "abandoned" under the Vehicle Code and had accordingly been towed. Plaintiff subsequently requested defendant Gallucci to release his car, but Gallucci refused, stating that he would retain custody of plaintiff's auto until the charges and fees authorized by section 7306 of the Vehicle Code had been paid. Plaintiff was either unable or unwilling to pay the charges, and his automobile remained in defendant Gallucci's possession. *fn12"

 On March 2, 1979, plaintiff instituted the present action, seeking declaratory, injunctive and monetary relief under 42 U.S.C. § 1983. *fn13" Plaintiff contends that the towing of his purportedly "abandoned" automobile under section 3352 of the Vehicle Code and the de facto creation of a mechanic's lien for towing and storage charges without notice or an opportunity for a hearing constituted a deprivation of property without due process. Plaintiff also maintains that the classification of an unlicensed or uninspected motor vehicle as "abandoned" suffers from unconstitutional overbreadth because it pretermits consideration of whether the owner intended to relinquish his interest in the property. *fn14"

 The legality of the tow and resulting detention of plaintiff's automobile necessarily depends upon the validity of the legislation that authorized the removal. Indeed, it appears that the linchpin of this entire action is the legislative classification stipulating that an unattended vehicle not bearing a registration plate is abandoned and therefore subject to removal without prior notice. *fn15"

 Prevailing case law recognizes that seizure and detention of a motor vehicle for payment of towing and storage costs constitutes a deprivation of property that must be attended by procedural safeguards either prior to or shortly after the car is removed. See, e.g., Stypmann v. City of San Francisco, 557 F.2d 1338 (9th Cir. 1977); Huemmer v. Mayor of Ocean City, 474 F. Supp. 704 (D.Md.1979); Hann v. Carson, 462 F. Supp. 854 (M.D.Fla.1978); Gillam v. Landrieu, 455 F. Supp. 1030 (E.D.La.1978); Remm v. Landrieu, 418 F. Supp. 542 (E.D.La.1976); Tedeschi v. Blackwood, 410 F. Supp. 34 (D.Conn.1976) (three-judge court); Watters v. Parrish, 402 F. Supp. 696 (W.D.Va.1975); Graff v. Nicholl, 370 F. Supp. 974 (N.D.Ill.1974) (three-judge court). The due process protections called for in the above-cited cases are premised upon the assumption that the legality of the tow and resulting detention is "a question "inherently subject to factual determination and adversarial input.' " Stypmann v. City of San Francisco, 557 ...

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