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April 13, 1982

Milton JUSTICE a/k/a Allahu Mohammad Akbar
Joseph FABEY and City of Philadelphia

The opinion of the court was delivered by: POLLAK


This civil rights action arises out of the seizure of a truck in the possession of plaintiff Milton Justice, a/k/a Allahu Mohammad Akbar, by Joseph Fabey, an officer of the Philadelphia Police Department. Plaintiff alleges that, prior to his purchase of the truck the Police Department had obtained the truck in a raid on the Evans Transportation Company, seizing it as stolen property. Some time later, so plaintiff alleges, Zappone Brothers Corp., purchased the truck for the use of its parts from the Philadelphia Police Department Pound, without obtaining a certificate of title. *fn1" In May of 1976, it is further alleged, plaintiff purchased the truck from Zappone Brothers and apparently remained in possession until April 1981, at which time the Police Department ascertained the identity of the original owner of the stolen truck, seized it from plaintiff, and returned it to its Alabama owner. As a result, plaintiff contends that he has been deprived of his property without a hearing and hence without due process of law, and accordingly seeks redress under 42 U.S.C. § 1983.

 Defendants Joseph Fabey and the City of Philadelphia have moved to dismiss plaintiff's action for failure to state a claim upon which relief may be granted. *fn2" While defendants' motion to dismiss was pending, plaintiff moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and moved to amend his complaint pursuant to Rule 15(a).


 Where, as here, plaintiff alleges a deprivation of property without due process, whether plaintiff has stated a cause of action turns on whether he had a constitutionally cognizable property interest in the truck. See Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977). Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Cobb v. Aytch, 472 F. Supp. 908, 925-926 (E.D.Pa.1979). Because property interests do not stem from the Constitution itself, but are created and defined by an independent source such as state law, Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S. Ct. at 2709, it becomes necessary to look to the law of Pennsylvania to determine the nature of plaintiff's interest in the truck.

 Section 2-403 of the Uniform Commercial Code, as adopted by Pennsylvania, 13 Pa.C.S.A. § 2403, provides that "a purchaser of goods acquires all title which his transferor had or had power to transfer..." Id. at § 2403(a). Further, a person with voidable title-that is, one who has obtained goods through the assent of the original owner but who may not have acquired good title-"has power to transfer a good title to a good faith purchaser for value." Id. One who has acquired goods by theft, however, cannot confer title by sale, even to a bona fide purchaser. Kenyatta v. Kelly, 375 F. Supp. 1175, 1179 (E.D.Pa.1974); Linwood Havestore Inc. v. Cannon, 427 Pa. 434, 235 A.2d 377 (1967). *fn3" Assuming that plaintiff was a bona fide purchaser for value from Zappone Brothers, who in turn purchased in good faith from the Philadelphia Police Department, the threshold question with respect to plaintiff's acquisition of some significant property interest is whether either transferor had power to convey at least a voidable title to the truck. Under Pennsylvania property law, it appears that since both Zappone Brothers and the City's possession of the truck are ultimately traceable to the initial theft, neither had power to transfer good title to plaintiff.

 However, while plaintiff may not be able ultimately to establish good title to the seized truck under Pennsylvania law, this does not conclusively determine whether the police were required under the due process clause to afford him some kind of hearing when they sought to take possession of the truck. It is clear that the Fourteenth Amendment not only safeguards rights of undisputed ownership, but also extends to any other significant property interest. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 92, 92 S. Ct. 1983, 2000, 32 L. Ed. 2d 556 (1972). The fact that a possessor's claim of ownership may be disputed does not negate the existence of a property interest or his right to procedural safeguards mandated by the Fourteenth Amendment. Davis v. Fowler, 504 F. Supp. 502, 505 (D.Md.1980). As the Supreme Court has stated, "It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined." Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S. Ct. at 2709.

  It is settled in Pennsylvania that possession of a chattel is deemed to be prima facie evidence of ownership. *fn4" Leitch v. Sanford Motor Truck Co., 279 Pa. 160, 123 A. 658 (1924). Thus, any person claiming ownership of property which is in the possession of another bears the burden of proving facts essential to his claim of ownership. In Re Carr's Estate, 371 Pa. 520, 92 A.2d 213 (1952). And while there appears to be no clear Pennsylvania authority on the matter, it would seem that one's earlier possession of property, which has subsequently been seized, is prima facie evidence of one's entitlement to the property. United States v. Wright, 197 U.S. App. D.C. 411, 610 F.2d 930, 939 (D.C.Cir.1979); Davis v. Fowler, supra, 504 F. Supp. at 505.

 Plaintiff alleges that, at the time Officer Fabey seized his truck, he had enjoyed undisturbed possession of the truck for almost five years. He further alleges that during this time he expended a considerable amount of money to maintain and virtually reconstruct the vehicle.

 Therefore, in light of Pennsylvania law which attaches a presumption of entitlement to one in possession, and the broad protection afforded by the Fourteenth Amendment, I find that plaintiff's complaint alleges facts constituting a property interest in the truck sufficient to impose upon government officials a due process obligation not to terminate plaintiff's possession of the truck without according him a hearing to adjudicate his claim of ownership.

 Because due process is a flexible concept, however, the content and timing of constitutionally required protections will vary depending upon the exigencies of the particular situation presented. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972); Goss v. Lopez, 419 U.S. 565, 579, 95 S. Ct. 729, 738, 42 L. Ed. 2d 725 (1974). To determine the contours of the procedural protections which may be mandated in a given instance, it is necessary to balance the individual and governmental interests implicated in the dispute. Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The Supreme Court in Mathews, supra, set forth three factors to be examined in making such an evaluation:

First, the private interest that will be affected by the official action;
Second, the risk of an erroneous deprivation of such interest through the (use of existing) procedures, and the probable value, if any, of ...

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