In Re Funds in the Possession of Conemaugh Township Supervisors , 562 Pa. 85 ( 2000 )

CAPPY, Justice,

dissenting.

I agree with the majority when it states that “[a] police officer on duty does not stand in the same shoes as an ordinary citizen when he finds lost property.” (Majority opinion at p. 791). However, I cannot agree with the ultimate conclusion of the majority, that a police officer by virtue of his official capacity cannot lay claim to lost property found while on official duty just as any other ordinary citizen would. Therefore I am compelled to dissent.

A finder of lost property has a valid claim to it as against all the world, except the true owner. Hamaker v. Blanchard, 90 Pa. 377, 379 (1879). The majority in the name of public policy creates a special category for police officers as distinct from all other citizens of this Commonwealth in regard to lost property. I recognize that the majority in reaching its conclusion rejected the argument that public policy requires police officers to be exempt from the common law rule as to lost property as a deterrent to prevent police officers from acting fraudulently in regard to lost property they encounter during the scope of their official duties. I disagree that a police officer should be in need of a deterrent. On this point I wholeheartedly agree with the majority. Furthermore, I am compelled to point out that an argument could also be made that exempting police officers from the right to claim title to lost property because of their official status could have the same negative effect that the proponents of the exemption seek to eliminate.

The majority, rather than focusing on a policy argument as to encouraging or discouraging honesty among police officers, reaches its conclusion by looking at the nature of the police officer’s job as it impacts on lost and found items. The majority reasons that a police officer is more likely to come across lost property than other citizens because of his or her status as a police officer. The job itself causes police to be in locales where lost items accumulate. Also, by virtue of the officers’ official capacity, citizens are encouraged to approach police officers and turn over lost property so that the officer may utilize the tools at his or her disposal to discover the true owner. Thus, the majority reasons, the police officer is a conduit, receiving lost property only for the purpose of enabling the return of said property to the true owner. As it is this official status which places the officer in a position to find the property, it is necessary to treat the officer differently from all others as a “finder” of lost property. Whereupon the majority decrees that police officers are forever barred from being a “finder” of lost property entitled to claim it as their own when all efforts to discover the true owner have failed. This analysis is flawed.

First, there is no basis for the majority’s statement that police officers by virtue of their position are more often a “finder” of lost property than other citizens. There is nothing in this record, or within the realm of common knowledge and understanding that supports the propositions that police officers find more lost property than persons in any other job classification do. I would posit that bus drivers, hotel maids and airplane attendants would find more lost items on any given day than a police officer. Second, when another citizen hands a police officer lost property so that the police officer can use his official capacity to discover the true owner, it is the initial citizen who is the finder, not the police officer. In those circumstances the officer has no right to claim title to the lost property, as he is not the finder, the citizen who turned it over to the police officer is the finder. In my view, the majority offers no justification for this disparate treatment as to police officers.

When a police officer is the actual person who found the lost item, and he fulfills his official duty in using all resources at his disposal to locate the true owner, albeit unsuccessfully, that officer should be awarded title to the lost item. Officer Richards found the money in his official capacity. The property was not turned over to the officer by a third person. Officer Richards in his official capacity made every effort to discover the true owner. It was only after all efforts were unavailing that the officer made a claim to receive the money as the finder of lost property. This officer took every action the majority could want an officer to undertake when he is faced with the discovery of lost property in his official capacity. However, the majority chooses to penalize the officer because he was in his official capacity when he found the property. I cannot endorse that decision. Accordingly, I respectfully dissent.