Harkovich v. Pfirrmann

JOHNSON, Judge,

dissenting:

I would affirm the order of the trial court, entered following the jury verdict, in favor of Gary Pfirrmann on his counterclaim against the Harkoviches. Therefore, I must respectfully dissent.

This case is the last in a series of lawsuits by the Harkoviches, all of which stem from the Harkoviches’ belief that the boundary of their real property, located in Munhall, Pennsylvania, includes an alleyway bordering between their property and their neighbors’ property. A declaratory judgment was entered against the Harkoviches on April 8, 1985, which held that the disputed alleyway did not belong to the Harkoviches. No appeal was taken from that declaratory judgment. The Harkoviches persisted in their belief that the alleyway was, in fact, part of their parcel of land, and pursuant to this belief, they parked their cars in the alleyway, blocking the sole access to their neighbors’ garage.

The Harkoviches continued to park their cars in the alleyway despite requests from the Munhall police to move the vehicles. The police, therefore, requested Pfirrmann, who is in the business of towing and storing cars, to tow the vehicles from the alleyway. The Harkoviches, who witnessed the towing of their vehicles, were informed that they could be reclaimed for the payment of a $50.00 towing fee per vehicle plus additional storage charges for every day the cars remained in Pfirrmann’s garage. The Harkoviches refused to reclaim their vehicles, choosing instead to proceed with a *486series of lawsuits contesting the legality of the towing and storage of their vehicles.

The present action was instituted against Pfirrmann in replevin. Pfirrmann counterclaimed for his towing and storage charges which, by the time of the trial, had accumulated to almost $30,000. Pfirrmann moved for summary judgment on the replevin claim, which the trial court granted. Pfirrmann’s counterclaim continued to a jury trial where judgment was entered against the Harkoviches for the amount of the towing and storage fees. The Harkoviches’ post-trial motions were denied and this appeal ensued.

While the Majority finds the Harkoviches’ first issue to be dispositive, four questions have been presented for review. The Harkoviches contend that the trial court erred in:

1. failing to admit evidence regarding an alleged duty on the part of Pfirrmann to mitigate the storage charges by selling the Harkoviches’ vehicles.
2. ruling that the issue of whether the vehicles had been towed illegally was res judicata.
3. requesting that only one of the Harkoviches examine and cross-examine the witnesses at trial.
4. granting summary judgment against the Harkoviches on their replevin claim.

First, the Harkoviches do not contest the fact that Pfirrmann has a common-law possessory lien on their vehicles, created when he towed and stored their vehicles at police direction. See Pittsburgh National Bank v. Schmidt, 41 Pa.D. & C.3d 143 (1985). The Harkoviches also do not contest the fact that they knew about the towing and storage charges on the date that their vehicles were towed, but took no action to reclaim their vehicles, thus, impliedly consenting to their storage by Pfirrmann. See Lewis v. Smith, 2 Pa.D. & C.3d 183 (1976).

The Majority begins its discussion by asserting that the Harkoviches’ vehicles were towed pursuant to the Vehicle Code, 75 Pa.C.S. § 3352. However, the Majority does not indicate which of the four subsections of § 3352 it is applying. *487Majority op. at 481 — 183. My colleagues do state that § 3352 “establishes authorization for the police to cause the towing or removal of an improperly parked vehicle which may be blocking a right of way.” Id. From this statement, I would assume that the Majority agrees that the Harkoviches’ vehicles were towed pursuant to § 3352(c)(4), which gives the police the authority to direct the towing of any vehicle in violation of 75 Pa.C.S. § 3353. However, my colleagues then state that “[i]t 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.” Id. In this statement, the Majority apparently shifts its analysis from § 3352(c)(4) to § 3352(d).

Section 3352(d) applies only to vehicles which have been abandoned on the highway and requires the police to notify the last registered owner of the vehicle of its towing. 75 Pa.C.S. § 3352(d)(3). Section 3352(d) clearly has no application in the present case. The Harkoviches’ vehicles were not left unattended to be towed from a highway or other public roadway but were removed from a private driveway with the Harkoviches themselves in attendance.

The Majority also cites to an unnamed statutory section for the proposition: “[i]t also states that the police must comply with Vehicle Code provision relating to abandoned vehicles, and that if a vehicle is removed, the owner may reclaim it under procedures provided with the Vehicle Code section dealing with abandoned vehicles.” Majority op. at 482. If this statement continues to refer to § 3352, then the only provision to which it could be referring is § 3352(c)(5), which provides authority for police officers to tow abandoned vehicles and also requires that police officers comply with the requirements of Chapter 73 of the Vehicle Code, relating to abandoned vehicles, at 75 Pa.C.S. § 7301 et seq. The Majority then assumes that the Harkoviches’ vehicles were abandoned, without analysis or citation to applicable case law or statute, and proceeds to apply relevant sections under Chapter 73 of the Vehicle Code.

*488I must object to the Majority’s attempted application of § 3352. Section § 3352(c) has five separate subsections each of which describe distinct factual circumstances under which a police officer has authority to order a vehicle to be towed. The Majority does not apply any specific subsection to the facts of this case. My colleagues then, without explanation, abruptly shift their focus to the provisions of the Vehicle Code relating to abandoned vehicles. Contrary to the Majority’s assertions, I would find full authorization for Pfirrmann’s towing of the vehicles under 75 Pa.C.S. §§ 3352 and 3353.

The only subsection of § 3352 which reflects the facts of the present case is § 3352(c)(4), which gives the police authority to tow any vehicle in violation of 75 Pa.C.S. § 3353. Section 3353(b) prohibits the parking of vehicles on private property without the consent of the owner. 75 Pa.C.S. § 3353(c) also gives the private property owner the right to remove the vehicle from his property at the reasonable expense of the owner. In addition, that Section also provides that the person removing the vehicle will have é lien against the vehicle’s owner for the reasonable costs of removing the vehicle. 75 Pa.C.S. § 3353(c); Apartment Owners and Managers Committee of State College Area Chamber of Commerce v. Brown, 487 Pa. 548, 410 A.2d 747 (1980).

In the present case, the police and the private property owner from whose land the Harkoviches refused to remove their vehicle, caused the Harkoviches’ automobiles to be towed by Pfirrmann. Under 75 Pa.C.S. § 3353(c), Pfirrmann thus had a statutory lien for his reasonable costs. There is ample evidence in the record to support the fact that Pfirrmann’s rates were reasonable and were in fact lower than others who were in the business of towing and storing vehicles in other jurisdictions. N.T., December 11,1991, at 34-35. The record also supports the fact that the Harkoviches knew about the towing and storage charges, and did not contest the fact that the charges must be paid in order to reclaim their vehicles. Id. at 36-37.

Moreover, the record clearly supports Pfirrmann’s claim for storage costs for the Harkoviches’ autos. Pfirrmann’s testi*489mony at trial indicated that the Harkoviches’ vehicles took up valuable space in his automobile pound which could have been used to store other vehicles. However, since litigation was ongoing and the Harkoviches had clearly indicated to Pfirrmann that they wanted their vehicles to be returned to them, Pfirrmann had no choice but to retain the vehicles until they were reclaimed. Id. at 37-38.

The Majority, however, proceeding on its unsupported assumption that the Harkoviches’ vehicles had somehow been abandoned, concludes that Pfirrmann had a statutory duty to sell the Harkoviches’ vehicles after sixty days in storage in order to recoup his towing and storage charges accumulated up to that date. The Majority further contends that since Pfirrmann failed to mitigate his damages through the sale of the vehicles, his damage recovery should be limited to only the amount due for the first sixty days of storage. Thus, the Majority finds merit in the Harkoviches’ charge that the trial court should have admitted evidence of Pfirrmann’s duty to mitigate and should have instructed the jury to limit his damage recovery. I find no merit in this argument.

Without explanation, the Majority shifts its discussion from the proper statutory analysis, under § 3352, of the procedure used by the police and Pfirrmann to remove the Harkoviches’ vehicles to an analysis under Chapter 73 of the Vehicle Code, relating to abandoned vehicles. The Majority contends that under 75 Pa.C.S. § 7307, Pfirrmann had a statutory duty to sell the Harkoviches’ vehicles within sixty days of the date on which the vehicles were towed. This statute reads in pertinent part:

§ 7307. Authorization for disposal of unclaimed vehicles
The department shall, after the expiration of 30 days from the date of notice sent by certified mail to the registered owner and all lienholders of record or 30 days after publication of notice, where applicable, and upon receipt of a written statement from the holder of the vehicle that the abandoned vehicle has not been reclaimed by the owner or lienholder within the 30-day period, authorize the disposal *490of the abandoned vehicle in accordance with the provisions of this chapter.

The Majority applies this statute to the particular facts of this case without citation to authority. I find this statute to be inapplicable as it only applies to vehicles which have been “abandoned.” Pfirrmann did not, and the record reveals that he could not, have considered the Harkoviches’ vehicles to have been abandoned, thus negating any alleged duty to dispose of the vehicles under § 7307.

“Abandoned property is defined as that to which an owner has voluntarily relinquished all right, title, claim and possession with the intention of terminating his ownership, but without vesting it in any other person and with the intention of not reclaiming further possession or resuming ownership, possession or enjoyment.” Commonwealth v. Wetmore, 301 Pa.Super. 370, 447 A.2d 1012 (1982). Abandonment involves an intent to abandon together with an act or omission by which such intention is carried into effect. Quarry Office Associates v. Philadelphia Electric Co., 394 Pa.Super. 426, 576 A.2d 358 (1990); Wetmore at 373, 447 A.2d at 1014. The mere failure to claim a vehicle does not constitute abandonment nor does it divest the vehicle’s owner of title. See Elder v. Nationwide Insurance Co., 410 Pa.Super. 290, 599 A.2d 996 (1991).

The record, in the present case, reveals that there was communication between Pfirrmann and the Harkoviches that contradicted any inference that the Harkoviches intended to abandon their vehicles. See, e.g., N.T., December 11, 1991, at 37, 41. The Harkoviches at no time indicated that they were relinquishing their rights, title or claim to the vehicles, despite the fact that they informed Pfirrmann that they would not pay the towing and storage charges but expected either their neighbors or the borough of Munhall to pay for them. Id. Further, Pfirrmann testified at trial that the Harkoviches instituted legal proceedings within sixty days following the towing of the vehicles. Id. at 37-38. As such, it would be unreasonable to expect Pfirrmann to have sold the vehicles as “abandoned” when he had notice from the Harkoviches per*491sonally and from the ongoing litigation that the Harkoviches intended to reclaim the vehicles.

The Majority also contends that the trial court lacked personal jurisdiction over the Harkoviches, and thus Pfirrmann’s counterclaim must be dismissed. I disagree.

The Majority raises this issue sua sponte stating, that the trial court had only in rem jurisdiction over the Harkoviches’ vehicles and no in personam jurisdiction over the Harkoviches, in Pfirrmann’s counterclaim in this replevin action. While not cited by the Majority, I will infer that this argument is based on Pa.R.C.P. 1082(a) which states:

(a) A claim secured by a lien on the property may be set forth as a counterclaim. No other counterclaim may be asserted.

Under 75 Pa.C.S. § 3353, Pfirrmann has a statutory lien on the Harkoviches’ vehicles. See Apartment Owners and Managers Committee of State College Area Chamber of Commerce, supra. Additionally, since the Harkoviches at no time tried to reclaim their vehicles while at the same time continuing to assert their rights to the vehicles, this can be inferred as tacit agreement to Pfirrmann’s storage of the vehicles pending the outcome of the various legal proceedings in which the Harkoviches were involved. See Lewis v. Smith, supra.

In this case, Pfirrmann has asserted a proper counterclaim in the form of a possessory lien on the Harkoviches’ vehicles. I agree, however, that under Rule 1082, even Pfirrmann’s proper claim in quasi-contract or quantum meruit for charges in excess of the value of the vehicles might at first appear improper.

This issue was addressed by this Court in Donegal Mutual Insurance Co. v. Miller, 277 Pa.Super. 186, 419 A.2d 724 (1980). In that case, the Court affirmed the grant of Summary Judgment for the plaintiff where the defendant asserted a counterclaim in quantum meruit in a replevin action. Id. There, we stated that the proper defense to such counterclaim was a motion under Pa.R.C.P. 1032(1) for the failure to state a *492claim upon which relief can be granted. Id. at 190, 419 A.2d at 726. While, in Donegal Mutual Insurance Co. v. Miller, we stated that a motion under Rule 1032(1) may be raised at any stage in the proceedings and is not waived if not raised at preliminary objections, the clear implication to be drawn from that case is that such a motion must be raised by a party at some point in the proceedings. Id. at 191-192, 419 A.2d at 727. In the case before us, the issue of an improper counterclaim was never raised by the Harkoviches.

In Luitweiler v. Northchester Corporation, 456 Pa. 530, 319 A.2d 899 (1974), our supreme court discussed whether a court may sua sponte address the issue of whether one party has failed to state a claim upon which relief can be granted, as the Majority does in the case sub judice. There, our supreme court stated that, “[a]lthough our rules do allow certain matters to be raised by the court on its own motion, a failure to state a cause of action is not one of them.” Id. at 533 n. 5, 319 A.2d at 901 n. 5. It would appear from the holding of Luitweiler, that any discussion of the propriety of the Pfirrmann’s counterclaim, absent a motion by the Harkoviches, is entirely improper.

To support its contention that Pfirrmann’s claim must be dismissed, the Majority cites to two cases which articulate the well-recognized procedure by which an individual must support a claim regarding the personal jurisdiction of the court. See Scoggins v. Scoggins, 382 Pa.Super. 507, 555 A.2d 1314 (1989); Demetriou v. Carlin, 47 Pa.Cmwlth. 478, 408 A.2d 565 (1979). In Scoggins we articulated the method of challenging the court’s personal jurisdiction as:

When a defendant wishes to challenge the court’s exercise of in personam jurisdiction, he may do so by filing preliminary objections. As the moving party, the defendant, has the burden of supporting its objections to the court’s jurisdiction.
Once the plaintiff has produced some evidence to support jurisdiction, the defendant must come forward with some evidence of his own to dispel or rebut the plaintiffs evidence. The moving party may not sit back and, by the bare *493allegations as set forth in the preliminary objections, place the burden upon the plaintiff to negate those allegations. Only when the moving party has properly raised the jurisdictional issue does the burden fall upon the party asserting [jurisdiction].

Scoggins at 513-514, 555 A.2d at 1318 (citations omitted) (emphasis as in original).

The Commonwealth Court, in Demetriou, supra, also addressed the burden upon a party asserting the court’s lack of personal jurisdiction. There, the court stated:

Within traditional concepts of ‘in personam’ jurisdiction and the want for legal efficacy of judgments rendered absent such jurisdiction, a named party to a cause of action may subject himself to the jurisdiction of the court. By doing so he thereby waives any in personam jurisdictional disability.

Demetriou at 483, 408 A.2d at 568 (emphasis added).

The Harkoviches have made no claim regarding the court’s personal jurisdiction over them in the present counterclaim action. In fact, it is the Harkoviches who first claimed the jurisdiction of the court by filing a complaint in replevin. In light of the above standards for asserting a claim for lack of personal jurisdiction, this Court must view such a claim, had it been raised on appeal by the Harkoviches, to have been waived.

Returning to the actual claim made by the Harkoviches, as I find no duty on Pfirrmann’s part to have sold the Harkoviches’ vehicles, I would find no error on the part of the trial court in refusing to admit evidence as to mitigation of damages or to instruct the jury in that regard. I would thus address all of the issues which the Harkoviches bring before this court on appeal.

Second, the Harkoviches contend that the trial court erred in its ruling that the question of the legality of the towing of the vehicles was res judicata. I am unable to agree with that contention.

The Harkoviches claim that the trial court’s ruling that the question of the legality of the towing was res judicata was *494based on the motion for summary judgment granted in the present litigation. The Harkoviches correctly assert that there must be a disposition on the merits of a claim before that claim can be rendered res judicata, and that the grant of the motion for summary judgment was based not on the merits of the claim but on the running of the statute of limitations. Here, however, the trial court based its ruling not on the grant of the motion for summary judgment in the present litigation but on the ruling of Judge Gerald J. Weber on this issue in the United States District Court for the Western District of Pennsylvania at CA 86-434, which held that Pfirrmann’s towing of the vehicles was legal. This holding was affirmed by the Third Circuit Court of Appeals on August 12, 1987, at 87-3247. The trial court also cited to previous rulings in the Allegheny County Court of Common Pleas, each of which held that this claim had been previously and finally litigated in Federal District Court.

I conclude that there was no error by the trial court in ruling that the Harkoviches could not offer the illegality of the towing of their vehicles as a defense to Pfirrmann’s counterclaim. I would hasten to note, however, that due to the pro se nature of the proceedings by the Harkoviches at trial, these allegations regarding the legality of the towing were nonetheless presented to the jury over the objection of counsel for Pfirrmann, and despite the best efforts on the part of the trial court to control the disruptive nature of the proceedings by the Harkoviches. Therefore, we dismiss these allegations as meritless.

Third, the Harkoviches maintain that the trial court erred in requesting that only one of the members of the Harkovich family be chosen to question witnesses during the trial. I would find no merit in this argument.

In this case, the Harkoviches chose not to be represented by counsel but to proceed pro se. The fact that the parties chose to act as their own counsel did not exempt them from the Pennsylvania Rules of Civil Procedure. Under Pa.R.C.P. 223(a)(2), where there are multiple plaintiffs or defendants, the court is empowered to require that those parties choose *495one attorney to question witnesses on behalf of all parties on one side of the litigation. Northampton Bucks County Municipal Authority v. Bucks County Water and Sewer Authority, 96 Pa.Cmwlth. 514, 508 A.2d 605 (1986), appeal denied, 514 Pa. 633, 522 A.2d 560 (1987). I find no error in the trial court’s attempt to impose this requirement upon the parties in this case. I would note that due to the disruptive nature of the Harkoviches’ conduct during this jury trial, it was reasonable and appropriate for the trial court to attempt to impose this requirement upon the parties in its attempt to conduct an orderly trial.

Fourth, the Harkoviches contend that the trial court erred in granting summary judgment on their replevin claim against Pfírrmann. I emphatically disagree.

The Harkoviches filed their replevin action on December 13, 1989. Pfírrmann filed his Motion for Summary Judgment on May 21,1990, which Judge Zeleznik granted on June 13, 1990. The Harkoviches never appealed from the grant of summary judgment, which dismissed all aspects of their claim against Pfírrmann. The jury trial was held before Judge Frederick G. Weir only on the issues raised in Pfirrmann’s counterclaim. It is only the judgment rendered on the Pfirrmann’s counterclaim that is before this Court on appeal.

The grant of the motion for summary judgment against the Harkoviches was a final appealable order. See, e.g., French v. United Parcel Service, 377 Pa.Super. 366, 547 A.2d 411 (1988). A final order is defined under the Pennsylvania Rules of Appellate Procedure as:

Rule 341. Final Orders; Generally
(b) Definition of Final Order. A final order is any order that:
(1) disposes of all claims or of all parties; ...

Our supreme court has also defined when an order becomes final and, thus, appealable in Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987), stating:

*496A pivotal consideration in determining whether an order is final and appealable is whether the plaintiff aggrieved by it has, for purposes of the particular action, been put “out of court” on all theories of recovery asserted against a given defendant for a given loss.

Here, summary judgment was entered as to all aspects of the Harkoviches’ replevin action on June 12, 1990, thus precluding any further litigation of that claim. The Harkoviches had thirty days in which to appeal the entry of that order. Pa.R.A.P. 903(a). No such appeal was taken. As such, this Court is without jurisdiction to entertain such an appeal at this time, almost three years past the expiration of the appeal period.

Accordingly, as I would find no merit in the Harkoviches’ claims, I would affirm the order of the trial court in its entirety. I must, therefore, respectfully dissent.