Apartment Owners & Managers Committee v. Brown

NIX, Justice,

dissenting.

The majority rhetorically questions the “unnecessary search for the elusive lien” and in so doing reflects its failure to grasp the single issue in this case. The Motor Vehicle Code1 provides the owner of land on which a vehicle is illegally parked with the right to have the vehicle removed and assesses the reasonable expenses for such removal against the owner of the vehicle. Even if we accept that Natalie’s Towing Service was acting as agent for the owners of the land in question and therefore entitled to the rights given to the owners of land under the Motor Vehicle Code, the question still remains as to the authority of Natalie’s to withhold possession of the vehicle until the cost of removal had been paid. It is the very absence of that “elusive lien”, which would have conferred the right to retain property for payment of the claim, that caused the majority of the Superior Court to properly conclude that Natalie’s refusal to return the vehicle owner’s car until the towing fee was paid was without legal support.

Today’s majority, while implicitly conceding that no such lien exists under either the common or statutory law, attempts to change the focus to whether the vehicle owner was obligated to pay the reasonable cost of removal. This simply is not the issue that has been raised in the lawsuit. The question is not the obligation to pay but the right of the creditor to compel satisfaction by retaining possession. The majority’s reasoning would appear to condone a creditor who placed a gun to the head of the debtor to secure payment as long as the debt was justly owed.

The issue was correctly analyzed and answered by the Superior Court and there was absolutely no reason for this *555Court to grant review.1 2 Thus a proper disposition would be an order indicating that the allowance of the appeal was improvidently granted. At the very least the order of the Superior Court should be affirmed.

ROBERTS, J., joins in this opinion.

. Act of June 17, 1976, P.L. 162, No. 81, § 1, as amended, Act of November 9, 1977, P.L. 226, No. 69, § 1, 75 Pa.C.S.A. § 3353.

. The Superior Court was also correct in finding that the common pleas court properly dismissed the declaratory judgment action.