Harkovich v. Pfirrmann , 426 Pa. Super. 478 ( 1993 )

MONTGOMERY, Judge:

The plaintiff-appellants instituted the instant replevin action seeking the return of two vehicles which had been towed more than six years earlier, at the direction of local police, and stored during that long time period by the defendant-appellee. In response to the replevin complaint, the defendant instituted a counterclaim, seeking the recovery of towing charges as well as the storage charges which had accrued during the many years he held the vehicles. Summary judgment was granted to the defendant on the plaintiffs’ replevin claim. The defendant’s counterclaim proceeded to a jury trial in which a verdict was rendered against the plaintiffs in the amount of $30,-988.00. Following the denial of the plaintiffs’ posttrial motions, a judgment was entered in favor of the defendant on the counterclaim. This appeal followed. We shall reverse.

The instant action follows many other legal proceedings stemming from the plaintiffs’ insistence that their property in Munhall, Allegheny County, included an alleyway between their property and the property of one or more neighbors. The plaintiffs used that alleyway to park two trucks, which caused their neighbors to lose access to their garages. A declaratory judgment action regarding the plaintiffs’ claims to the alley property resulted in an order against the plaintiffs on April 8, 1985. Despite the ruling that the alleyway did not belong to them, the plaintiffs continued to park their vehicles there. They did not appeal from the declaratory judgment. Subsequently, after requests to the plaintiffs were unavailing, the Munhall police directed the defendant to tow the vehicles from the alleyway. There was no dispute that the plaintiffs knew the vehicles were towed and were informed that they could be reclaimed for the payment of a towing fee plus storage charges for each day the cars remained in the defendant’s storage facility. The plaintiffs refused to reclaim their vehicles, and instead instituted a succession of unsuccessful legal actions in the state and federal courts to challenge the ruling in the property action and the towing of their vehicles. The plaintiffs apparently acted pro se in all such proceedings, as well as during the trial in the instant case. They are represented by counsel in this appeal proceeding.

The plaintiffs have raised a number of contentions of trial error on this appeal. Included is the claim that the trial court should not have precluded the jury from considering the issue of whether the defendant should have mitigated the towing and storage charges by selling the vehicles thirty days or more after they had been towed and remained unclaimed by the plaintiffs. We find merit in that argument.

The record shows that during opening remarks to the jury, one of the plaintiffs commented that the defendant could have sold the vehicles thirty days after they had been towed, and used the proceeds to pay any accumulated towing and storage charges. When such matters were mentioned, the court stated: “I again remind the jury, they brought an Action in Replevin to get the trucks back. Just so you can see that none of this would have any bearing. Go on. In other words, you didn’t want to be rid of the tracks. You tried to stop them from getting rid of them by bringing an Action in Replevin?” RR 72a. During the course of the trial, the defendant was asked questions about whether or not he could have sold the vehicles when they were unclaimed for thirty or more days after they were towed. He responded that he could not sell the vehicles while there was litigation going on which had been commenced by the plaintiffs. In so responding, he testified that the first such action was instituted by the plaintiffs more than sixty days after the vehicles were towed. He was not more specific in identifying any date. In subsequent testimony by the plaintiffs, they indicated that the first legal action they filed, subsequent to the towing, occurred in June 1986, more than a year after the tracks were towed. The plaintiffs also testified that it was their belief that the defendant had an obligation to sell the vehicles, under applicable law, in order to recover any charges arising from the towing and storage. However, at the conclusion of the case, in its charge to the jury, the trial court did not discuss the issue of “mitigation” or comment on any right or obligation on the part of the defendant to sell the vehicles in order to recover any accrued costs. Rather, the court instructed the jury: “There is no dispute about any matter pertaining to his [the defendant’s] right to receive payment in the case. Of course, I can’t order you to find a verdict in favor of Mr. Pfirrmann, but I cannot see how in justice you could possibly do otherwise.” RR 114a.

Our resolution of this appeal begins with an analysis of the applicable provisions of the Vehicle Code. The authority for the towing of the plaintiffs’ vehicles from the alleyway was provided in 75 Pa.C.S.A. § 3352. Inter alia, it establishes authorization for the police to cause the towing or other removal of an improperly parked vehicle which may be blocking a right-of-way. It requires the police to give prior notice to the owner to afford him or her the opportunity to move the vehicle before it is towed or otherwise removed. It also states that the police must comply with Vehicle Code provisions relating to abandoned vehicles, and that if a vehicle is removed, the owner may reclaim it under procedures provided within the Vehicle Code sections dealing with abandoned vehicles. The Code provisions dealing with abandoned vehicles are set forth in 75 Pa.C.S.A. §§ 7301-7312. Section 7305 provides for notice to the owner that an abandoned vehicle has been taken into the possession of a salvor. Section 7306, which is specifically mentioned in Section 3352, declares that the owner of an abandoned vehicle may reclaim it upon payment of costs, including storage charges. Sections 7307, 7308 and 7309 provide procedures for the salvor to dispose of the vehicle, after the expiration of thirty days from the date of the Section 7305 notice to the owner. A salvor can dispose of the vehicle at auction if it has value (75 Pa.C.S.A. §§ 7307 and 7308), or treat it as junk, and receive a minimal payment from the Motor License Fund (75 Pa.C.S.A. § 7309). Thus, under all of these Vehicle Code provisions, a vehicle which police cause to be removed from a right-of-way is to be treated as abandoned.¹ While the owner has an opportunity to reclaim it within a specified period, by paying applicable costs and charges, if the vehicle remains unclaimed by the owner, the salvor who seeks to recover any applicable towing and/or storage fees must do so by either selling the vehicle at auction or by treating it as junk.

In this case, the defendant was unquestionably a salvor. The Code gives a salvor only those limited rights regarding actions which may be taken to recover unpaid towing and/or storage charges. There is no statutory authorization to permit a salvor to maintain a legal action against the abandoned vehicle’s owner for any recovery of towing and/or storage fees. The defendant certainly had no contract or quasi-contractual relationship with the plaintiffs to support his counterclaim, and the towing and storage charges he sought to recover from them. Further, he had no tort or other civil ground to support his claims. It is evident that any of the rights claimed by the defendant could only arise from statutory provisions in the Vehicle Code. Thus, it was clearly improper for the trial court to advise the jury that the plaintiffs’ arguments that the defendant should have sold the vehicles were irrelevant and should not be considered in evaluating his counterclaim.

On a factual basis,' the record does not support a determination by the trial court that the defendant could not have proceeded to sell the vehicles, under the applicable provisions of the Vehicle Code, because of litigation which had been instituted by the plaintiffs. The defendant testified that the plaintiffs first instituted some type of legal proceeding, more than sixty days after the trucks were towed. The plaintiffs, on the other hand, testified that they first instituted proceedings more than a year after the vehicles were towed. The trial court commented that the plaintiffs indicated an intent to reclaim the vehicles by the filing of their replevin action. However, the record shows that the instant replevin action was not instituted until December 1989, some four and a half years after the two vehicles were towed. In light of this evidence, there was no basis for.the trial court to have ruled, as a matter of law, that evidence regarding the defendant salvor’s legal right or obligation to sell the vehicles, thirty or more days after they were towed, was irrelevant.²

While in other circumstances the errors in evidentiary rulings and/or the court’s charge might be the basis for an order for a new trial, such a disposition is inappropriate in this case, as it is evident that the trial court lacked any jurisdiction to issue an award on the defendant’s counterclaim. The Vehicle Code only provides a salvor with in rem rights as to a vehicle held in storage. There is no statutory or other basis for a court to assert in personam jurisdiction over the owner of a towed vehicle in proceedings involving a claim by a salvor for excess towing and/or storage charges. The lack of in personam jurisdiction over the plaintiffs with respect to the relief sought by the defendant in his counterclaim in this case renders the judgment against the plaintiffs absolutely void and a nullity. Scoggins v. Scoggins, 382 Pa.Super. 507, 555 A.2d 1314 (1989); Demetriou v. Carlin, 47 Pa.Cmwlth. 478, 408 A.2d 565 (1979). It also precludes an award of a new trial.

The plaintiffs have displayed no common sense and have caused themselves significant harm by their obvious stubbornness and poor attempts at self-representation. While such shortcomings have operated to deny the plaintiffs the replevin rights they sought to exercise in this action, they do not justify imposing a damage verdict against them which is obviously improper. The law simply does not permit a salvor to keep an abandoned vehicle for many years, without respect to value, while building up almost unlimited storage charges against a vehicle owner. Obviously, the significant damage award to the defendant in this case may not be condoned on any legal ground.

The judgment in favor of the defendant is reversed, and his counterclaim is dismissed. Jurisdiction is relinquished.

JOHNSON, J., files a dissenting opinion.

1 . In his Dissenting Opinion in this case, Judge Johnson maintains that the vehicles should not have been considered to have been abandoned. In support of that position, he relies upon two cases which are clearly inapposite. They deal with abandonment of a weapon and abandonment of real property. The reasoning and holdings in such cases have no application to the issue of whether a motor vehicle is to be treated as abandoned under the removal provisions of the Vehicle Code which are relevant in this case.

2 . For the same reason, there is no basis for the position advocated by Judge Johnson, in his Dissenting Opinion, that the defendant was precluded from selling the vehicles because of ongoing litigation. All of the evidence indicated no litigation was commenced by the plaintiffs during the time period when the defendant was entitled under applicable law to sell the plaintiffs' vehicles to recover unpaid towing and storage charges.