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Smolow v. Hafer


November 19, 2008


Appeal from the Order of the Commonwealth Court entered on February 9, 2005 at No. 208 MD 2004 867 A.2d 767.

The opinion of the court was delivered by: Mr. Justice BAER*fn1


ARGUED: March 5, 2008


Appellant, Ronald J. Smolow, challenges the Commonwealth Court's decision to dismiss his class action complaint against the State Treasurer and the Treasury Department (collectively, the "Department"), which asserted, inter alia, a challenge to the constitutionality of Pennsylvania's Disposition of Abandoned and Unclaimed Property Act, Act of December 9, 1982, P.L. 1057 § 5 (as amended 72 P.S. §§ 1301.1 -1301.29) ("DAUPA"), and a claim for damages and attorney fees pursuant to 42 U.S.C. § 1983.*fn2 Smolow asserted that the Department committed a taking without just compensation when it denied his request for interest earned during the time the Commonwealth held his property pursuant to DAUPA. After review, we affirm the Commonwealth Court's dismissal of Appellant's claims.

The facts as pled in Smolow's amended complaint are as follows: In August 2002, the Department took possession of 300 shares of common stock in Parker Drilling Company as abandoned and/or unclaimed property, pursuant to DAUPA. See 72 P.S. §1301.6 (prescribing that certificates of stock are "presumed abandoned or unclaimed" if the owner has not claimed such property or corresponded in writing with the business association within five years of the prescribed date of delivery);*fn3 72 P.S. §1301.13 (establishing the mechanism by which unclaimed property is transferred to the Treasurer). The Department later sold this stock under authority provided in the statute, see 72 P.S. §1301.17, for $586.47, and appropriated the money, earned interest, and other appreciation for public purposes, see 72 P.S. §1301.18.*fn4

After discovering this in August 2003, Smolow filed a claim with the Department asserting ownership of the stock and seeking recovery of its proceeds, which was granted; however, pursuant to its interpretation of the governing statute and the Department's policies and procedures, the Department paid no interest on the claim. Accord 72 P.S. §1301.17(d) ("The State Treasurer shall be responsible to an owner only for the amount actually received by the State Treasurer upon the sale of any property ...."). In January 2004, Smolow filed a claim requesting interest, estimated at $30, which the Department denied.

Smolow then filed his seven-count, class action civil-rights complaint, invoking the Commonwealth Court's jurisdiction under Section 1301.21 of DAUPA, which provides:

Any person aggrieved by a decision of the State Treasurer or as to whose claim the State Treasurer has failed to act within ninety (90) days after the filing of the claim, may commence an action in the Commonwealth Court to establish his claim. The proceeding shall be brought within thirty (30) days after the decision of the State Treasurer or within one hundred twenty (120) days from the filing of the claim if the State Treasurer fails to act. The action shall be tried de novo without a jury.

72 P.S. §1301.21. Smolow defined the class as "[a]ll persons and entities whose property was delivered to the defendants as unclaimed or abandoned property pursuant to the DAUPA, converted to cash, and returned to the owner without just compensation" within a six-year period prior to the filing of the class action lawsuit. Amended Complaint ¶22.

In the complaint, Smolow asserted that the Department was obliged to pay class members earned interest under Section 1301.15 of DAUPA, which provides, "When property is paid or delivered to the State Treasurer under this article, the owner is entitled to receive income or other increments actually received by the State Treasurer."

72 P.S. §1301.15. Alternatively, Smolow contended that, to the extent that DAUPA does not require the payment of interest, the statute is unconstitutional under Article 1, Section 10 of the Pennsylvania Constitution,*fn5 as it fails to provide just compensation for the taking and use of private property for public purposes.*fn6 Smolow also asserted claims under the United States Constitution, but solely for purposes of preserving them for adjudication in a parallel action, which he commenced in federal court. See Smolow v. Hafer, 353 F. Supp. 2d 561 (E.D. Pa. 2005).*fn7

Initially, the Department offered to pay Smolow's claim to resolve it. After this was refused, the Department filed preliminary objections, asserting that the class action complaint was erroneously brought in the Commonwealth Court's original jurisdiction when, in fact, it represented an appeal from the Department's denial of his claim for interest; the putative class action members failed to exhaust their administrative remedies, interposing a jurisdictional impediment; the Commonwealth Court lacked jurisdiction over the class in light of the subject matter of the litigation; and Smolow's claims failed as a matter of law by virtue of his failure to allege any taking of "net earnings" as a requisite element of a takings claim. The Department separately filed a suggestion of mootness, which was rejected via single-judge order.

In its published opinion supporting the granting of the preliminary objections and dismissal of the class action complaint with prejudice, the Commonwealth Court first agreed with Smolow's position that his action resided within the court's original, as opposed to appellate, jurisdiction. Smolow v. Hafer, 867 A.2d 767, 772 (Pa. Cmwlth. 2005). In this regard, the court relied primarily on DAUPA's prescription that judicial review is to be pursued via the filing of "an action in the Commonwealth Court," which is to be tried de novo without a jury. See id. (citing 72 P.S. §1301.21). The court also observed that this procedure is consistent with its mandate to hear claims against the Commonwealth within its original jurisdiction. See id. Thus, while noting that Smolow's pleading should have been styled as a petition for review under Chapter 15 of the Rules of Appellate Procedure, the court found no basis for dismissal relating to the form of the action. See id.

The Commonwealth Court then held that Smolow's cause of action should be dismissed as a matter of law. See id. at 774-76. In this respect, the court indicated that Smolow had been neglectful in abandoning his property, thus foreclosing the conclusion that the Commonwealth had engaged in any "taking" for purposes of Article 1, Section 10. See id. at 775. The court explained that its holding was consistent with federal constitutional law cases opining that the State is not required "to compensate the owner for the consequences of his own neglect." Texaco v. Short, 454 U.S. 516 (1982). The court also observed that other states have come to similar conclusions under their abandoned property statutes: "It has been held that no unconstitutional taking occurs where a state exercises its right to take custody and control of abandoned property, as opposed to taking absolute title. See In re Folding Carton Antitrust Litigation, 744 F.2d 1252, 1255 (7th Cir. 1984) (custodial escheat under federal statute raises no unconstitutional taking); [s]ee also Fong v. Westly, 117 Cal. App. 4th 841, 12 Cal. Rptr. 3d 76 (2004)." Smolow, 867 A.2d at 774-75. Additionally, the court determined that the Department's decision not to pay interest was consistent with DAUPA. See id. at 775-76 (citing 72 P.S. §1301.17(d)).*fn8

Smolow filed an appeal as of right with this Court pursuant to 42 Pa.C.S. § 723 and Pa.R.A.P. 1101, granting direct appellate rights in matters commenced in the Commonwealth Court's original jurisdiction. Smolow challenges the dismissal of his individual claims as well as the denial of class certification. We will not address the class certification issues given our conclusion that his individual claims, upon which the class claims are based, lack merit.

Turning to his individual claims, Smolow contends that the concept of just compensation under Article 1, Section 10 requires not only the return of the principal property, but also interest, earnings, or other accruals on the property while held in the state's custody subject to utilization for public purposes.*fn9 Smolow, therefore, claims that the withholding of the interest constitutes a taking requiring just compensation.

Smolow asserts his individual claim relying on the maxim that interest follows principal, averring that, by analogy, an owner holds title to both the abandoned property and the interest earned. Smolow relies upon the federal constitutional decisions exemplified by Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 162 (1980) (holding that interpleader funds deposited with a court clerk are subject to the "interest follows principal" rule), Phillips v. Washington Legal Foundation, 524 U.S. 156, 171 (1998) (same for client funds deposited with attorneys in small amounts and/or for short periods pursuant to Interest on Lawyer's Trust Account programs), and Brown v. Legal Foundation of Washington, 538 U.S. 216, 235 (2003) (same).*fn10 According to Smolow, several courts in other states addressing the "taking" issue in the context of unclaimed property laws similar to DAUPA have recognized that a taking occurs when the state retains interest on abandoned property upon return of that property to its owners. See Brief for Appellant at 28-29 (citing Canel v. Topinka, 818 N.E.2d 311 (Ill. 2004), and Arthur v. District of Columbia, 857 A.2d 473 (D.C. App. 2004)). He distinguishes his case from the United States Supreme Court's decision in Texaco based on his observations that the state in Texaco never claimed ownership of any of the property, because ownership was merely transferred from the subsurface owner, who abandoned the property, to the surface owner. In contrast, he argues that under DAUPA the owner retains ownership interests over the property while it is merely in the temporary custody of the state.

The Department's brief follows the Commonwealth Court's reasoning, emphasizing the High Court's admonition in Texaco that, where the owner's failure to make any use of the property, and not the actions of the state, causes the lapse of a property right, there is no taking. See Texaco, 454 U.S. at 530. The Department also asserts that there is no allegation in the amended complaint that Smolow's claimed interest exceeds the cost incurred by the Treasurer in administering the funds and processing his claim. According to the Department, Smolow's claim should fail on this basis as well.

We reject Smolow's argument because it strains common sense to suggest that the Commonwealth is obligated to pay interest to a negligent owner, who has presumably ignored his property for several years. The conceit present in Smolow's theory is that the negligent owner is entitled to interest despite the lack of an indication that the interest would have been earned by the negligent owner if he had possession of the property during the relevant time. For example, if the property had been an abandoned suitcase of cash, why should the owner receive interest earned through the DAUPA system, when that cash would not have earned any interest sitting in the suitcase?

Indeed, Plaintiff's claim has already been rejected in substance by the United States Supreme Court. As noted, in Texaco, the Court concluded that an owner was not entitled to compensation when he lost property rights based upon his own negligence in failing to make use of his property, rather than through any action of the state. Id. ("[T]his Court has never required the [s]tate to compensate the owner for the consequences of his own neglect.").As noted by Smolow, however, Texaco can be distinguished from the DAUPA situation because the state never obtained control over the property in Texaco, but instead merely caused the title of the property to pass from the subsurface owner who abandoned the property, to the surface owner.

A Louisiana appellate court, however, looked to the holding in Texaco, premised on the owner's negligence, and applied it to contrast eminent domain cases with litigation under abandoned property statutes, similar to DAUPA. The court observed, "[t]he triggering event in the exercise of the state's power of eminent domain is the state's overt act of taking private property from an owner," Hooks v. Treasurer, 961 So.2d 425, 432 (La. Ct. App. 2007) (emphasis added). In contrast, under an unclaimed property statute, the triggering event is "the owner's act of abandonment over a period of several years." Id. (emphasis added). Given this distinction, the court refused to find that the unclaimed property statute worked a taking requiring compensation:

We can find no bar to this statutory scheme. When the state receives custody, it is also required to assume, in apparent perpetuity, the responsibility of safekeeping the property for any owners who may wish to re-claim their abandoned property. In return for this advantageous long-term reclaiming service, the state is afforded the benefit of retaining, after any deductions required by law, the interest earned from post-abandonment actions of the state.

Id. The Louisiana court opined that the statutory duty to maintain a system for safekeeping the abandoned property "cannot logically or fairly be stretched to create a higher fiduciary duty to pay interest not earned by any action of an owner who abandoned not only his property and investment opportunities, but also the responsibility to maintain and care for the property." Id.

Similarly, the United States District Court for the Eastern District of Pennsylvania, in reviewing a successor plaintiff to Smolow*fn11 in ongoing parallel federal litigation, reached a similar conclusion after reviewing in detail the decisions of Hooks and other courts that have also declined to provide interest to the owners of abandoned property subject to unclaimed property statutes. Simon v. Wiessman, 2007 WL 2461707, 5-7 (E.D. Pa., Aug. 27, 2007) (discussing Smyth v. Carter, 845 N.E.2d 219 (Ind. Ct. App. 2006), review denied, 860 N.E.2d 588 (Ind. 2006), cert. denied, ___U.S.___, 127 S.Ct. 1155, 166 L.Ed.2d 996 (2007); Clark v. Strayhorn, 184 S.W.3d 906 (Tex. Ct. App. 2006), cert. denied, ___ U.S. ___, 127 S.Ct. 508, 166 L.Ed.2d 369 (2006); Sogg v. Ohio Dept. of Commerce, 2007 WL 1821306 (Ohio Ct. App. June 21, 2007)).

In contrast, a few courts have concluded that a taking occurs when interest is retained under statutes similar to DAUPA. See Suever v. Connell, 2007 WL 3010423, 7 (N.D. Cal. Oct. 12, 2007) ("Because the principal itself at all times remained the property of private individuals and not the state, so too did the interest."); Canel v. Topinka, 818 N.E.2d 311 (Ill. 2004) (finding that dividends held under unclaimed property laws are private property that cannot be taken without just compensation). The reasoning in these decisions, however, fails to account for the owner's responsibility to maintain his property or to analyze the question in light of the analogous observations in Texaco.

After review, we fully agree with the decisions of our sister courts, including the Eastern District of Pennsylvania looking at this case, that owners of presumptively abandoned property have no claim to the interest earned while the abandoned property is held in perpetual temporary custody of the state. The DAUPA procedures result not from a taking by overt act of the Commonwealth, but are triggered by the neglect of the owner. See Texaco, 454 U.S. at 530 ("It is the owner's failure to make any use of the property - and not the action of the State - that causes the lapse of the property right; there is no 'taking' that requires compensation."). Accordingly, we affirm the Commonwealth Court's dismissal of Smolow's complaint.*fn12

As the claims of the putative class would fail for the same reasons that Smolow's individual constitutional takings challenge to the statute fails, we do not reach the questions of class certification, but instead affirm the dismissal of the class for the reasons stated above.

Mr. Chief Justice Castille, Mr. Justice Eakin, Madame Justice Todd and Mr. Justice McCaffery join the opinion.

Mr. Justice Saylor files a dissenting opinion.



As the majority observes, other courts are divided on the subject matter of this appeal, namely, whether a state implementing a scheme of custodial escheat for unclaimed property may appropriate interest earned on reclaimed funds. Compare Suever v. Connell, No. C 03-00156 RS, slip op., 2007 WL 3010423, at *7 (N.D. Cal. Oct. 12, 2007), with Simon v. Wiessman, No. 04-941, 2007 WL 2461707, at *8 (E.D. Pa. Aug. 27, 2007). The majority, however, makes relatively short work of the question. Notably, although its analysis rests integrally upon a concept of presumed negligence on the part of property owners subject to the operation of the custodial escheat statute, see Majority Opinion, slip op. at 8-9, the majority does not pause to discuss the justification for such a presumption or the availability (or non-availability) of due process protections available under the statute to those subject to its operation who are not, in fact, negligent. Cf. Suever v. Connell, No. C 03-00156 RS, slip op., 2007 WL 3313954, at *1 (N.D.Cal. Nov. 6, 2007) ("Having unequivocally declared that it is holding the property on behalf of its true owner, the state cannot thereafter constitutionally refuse to return interest that is, under long established common law principles, part of that property, at least without a clearly delineated statutory scheme that, with adequate due process protections, justifies permanent escheat of the interest." (emphasis deleted)).*fn13

Although I do not necessarily disagree with the majority's decision on the merits to the extent that it is read as rejecting only a facial (as opposed to as-applied) constitutional attack on the statute as implemented by the Department, left to my own devices, I would not reach the merits of Appellant's arguments at this juncture. Rather, I believe the Commonwealth Court should have considered the general principle that courts will not address debatable constitutional challenges where there is an alternate basis for disposition. See Commonwealth v. Hughes, 581 Pa. 274, 312 n.24, 865 A.2d 761, 783 n.24 (2004) (collecting cases).*fn14 Had it applied this principle, the court would have deferred decision on Smolow's constitutional claim pending consideration of whether the Commonwealth's expenses in the administration of his property and claim were equal to or exceeded his interest claim. This matter has been raised by the Department and is an issue Smolow agrees could be dispositive. See Brief for Appellant at 33. Moreover, it is noteworthy that the federal district court presiding over the federal claims asserted by Smolow considered the net-loss question as a threshold one, rejecting Smolow's individual claims on the basis that he suffered no net loss prior to consideration of the constitutional challenge maintained by substitute named plaintiffs. See Smolow v. Hafer, 513 F. Supp. 2d 418, 437 (E.D. Pa. 2007). Indeed, the majority finds it obvious that Smolow could not have suffered a loss, albeit as an alternative basis for its disposition, set forth in a closing footnote. See Majority Opinion, slip op. at 11 n.12.

In summary, I believe that the most prudential approach to this appeal would be to enforce the application of the settled approach of screening for grounds for resolution alternative to addressing a debatable constitutional claim, particularly since this would clarify whether the decision on the constitutional question is in any way meaningful to the party in interest. Notably, again, the majority ultimately concludes that its own decision simply is not. See id.

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