556 F.2d 132 (3rd Cir. 1977), 75-2271, Parks v. 'Mr. Ford'

Docket Nº:75-2271.
Citation:556 F.2d 132
Party Name:Gilbert PARKS et al., Appellants, v.
Case Date:April 04, 1977
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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556 F.2d 132 (3rd Cir. 1977)

Gilbert PARKS et al., Appellants,


"MR. FORD" d/b/a Ford's Speed Shop et al.

William MULDOWNEY, Jr., on behalf of himself and all others

similarly situated, Appellant,



No. 75-2271.

United States Court of Appeals, Third Circuit

April 4, 1977

Argued May 6, 1976.

Reargued Nov. 4, 1976.

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David A. Scholl, Delaware County Legal Assistance Ass'n, Inc., Chester, Pa., for appellants.

Donald J. Martin, George W. Helme, IV, Thomas E. Waters, Jr., Waters, Fleer, Cooper & Gallager, Norristown, Pa., for appellee, North Penn Motors, Inc.

H. Kenneth Tull, Philadelphia, Pa., for appellee, Erwin Chevrolet, Inc.

Before ALDISERT, GIBBONS and GARTH, Circuit Judges.



GARTH, Circuit Judge.

This appeal concerns the validity under the due process clause of the Fourteenth Amendment of two aspects of Pennsylvania law: first, a common law rule which gives automobile repairmen a possessory lien on vehicles they have repaired, and second, statutes which permit repairmen to sell vehicles retained under that lien. The district court held that state action is not involved when private repairmen retain or sell vehicles pursuant to these laws. It therefore granted summary judgment in favor of the

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defendants (private garages and repairmen) and against the plaintiffs, who are aggrieved car owners. We have concluded that the district court was correct in holding that mere retention of the vehicles by the defendants did not involve state action but that the district court erred in reaching the same result with respect to a vehicle which, under Pennsylvania's statutes, could have been sold by one of the defendants. In this latter instance, we have also concluded that the Pennsylvania statutes authorizing such a sale violate due process.


Pennsylvania common law gives a repairman a lien on those items which he repairs and permits him to retain possession of them until payment is made for the work performed. Wilson v. Malenock, 128 Pa.Super. 544, 194 A. 508 (1937). Pennsylvania statutes permit a repairman whose bill is not paid to sell those items retained under his common law lien in order to satisfy the amount of the lien. Pa.Stat.Ann. tit. 6, §§ 11-14 (1963). 1

The five plaintiffs in this case are Pennsylvania residents whose motor vehicles were retained by private repairmen when the plaintiffs refused to pay the amounts which the repairmen claimed that they owed for repairs. One of the plaintiffs, Gilbert Parks, eventually paid the amount demanded and regained possession of his automobile. Another, Lewis Williams, regained possession of his vehicle through agreement of counsel after this action was initiated. That car is no longer in Williams's possession. Two of the plaintiffs, Hattie Ellerbe and William Muldowney, Jr., never regained possession of their vehicles but have now abandoned them as worthless. These four plaintiffs have live claims under 42 U.S.C. § 1983 (1974) 2 based

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on the allegedly unconstitutional retention of their vehicles by particular defendants. They maintain that the repairmen who retained their vehicles acted "under color of" Pennsylvania law and that the repairmen's conduct violated their due process rights under the Fourteenth Amendment.

The fifth plaintiff, Lois Dillon, regained possession of her automobile under a court order "pending the final disposition" of this case. 3 Since the garage's lien on her vehicle apparently was not extinguished under Pennsylvania law when the garage surrendered possession in compliance with the court order, Bernstein v. Hineman, 86 Pa.Super. 198, 201 (1925), Pennsylvania law would permit the garage, should it ever regain possession of the Dillon car, to sell it in satisfaction of its lien. Dillon, therefore, has a present claim for relief enjoining the sale of her car by the lienholder, as well as a claim for damages based on the retention of her car pursuant to the lien. In asserting these claims, Dillon argues that a private repairman who retains or sells his customer's car acts "under color of" Pennsylvania law and that the provisions which permit him to do so do not comport with due process requirements.

The district court concluded that neither the retention nor the sale of a customer's car by a private repairman was action "under color of" Pennsylvania law, and it therefore granted summary judgment in favor of the defendants and against each of the plaintiffs. Parks v. "Mr. Ford", 386 F.Supp. 1251 (E.D.Pa.1975). This appeal followed. 4


We are not persuaded that the retention of plaintiffs' vehicles by the defendants pursuant to Pennsylvania's common law garageman's lien constitutes action "under color of" state law as required by 42 U.S.C. § 1983. 5

In Magill v. Avonworth Baseball Conference, 516 F.2d 1328, 1330-31 (3d Cir. 1975), this Court identified three general categories of state action cases: "(1) where state courts enforced an agreement affecting private parties; (2) where the state 'significantly' involved itself with the private party; and (3) where there was private performance of a government function." See also Hollenbaugh v. Carnegie Free Library, 545 F.2d 382, 383 (3d Cir. 1976). Cf. Jackson v. Metropolitan Edison Co., 483 F.2d 754, 757 (3d Cir. 1973), aff'd 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1975). Retention 6 of the plaintiffs' vehicles by the defendants does not fall within any of these three groups.


It is evident that we are not here concerned with a case in which "state courts enforced an agreement affecting private parties," since the defendants never invoked the assistance of the state courts to enforce their liens. 6a Compare Barrows v.

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Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) (state court judgment for damages for violation of racially restrictive covenant is state action); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) (state court injunction to enforce racially restrictive covenant is state action). See also Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970) (no state action where state court refused to use doctrine of cy pres to excise racial restriction from trust but held instead that trust had failed and reverted to heirs of settlor).


Nor are we persuaded that this is a case in which "the state (has) 'significantly' involved itself with the private party." Pennsylvania has neither compelled nor coerced the defendants to retain possession of the plaintiffs' vehicles. Compare Adickes v. S. H. Kress & Co., 398 U.S. 144, 172, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1969) (dicta that action pursuant to custom having the "force of law" would be state action); Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964) (manager's request that integrated group leave restaurant was state action where state regulations put special burdens on facilities serving both races); Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963) (manager's request that integrated group leave restaurant was state action where state officials commanded or coerced him to do so); Peterson v. Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963) (manager's request that blacks leave restaurant was state action where integrated facilities were forbidden by ordinance).

None of the defendants was "a willful participant in joint activity with the State or its agents." Compare United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966) (state action where private individuals conspired with state officers to murder civil rights workers). In fact, state officials did not even perform ministerial functions in connection with the defendants' retention of the plaintiffs' vehicles. Compare North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) (court clerk issued

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writ of replevin); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) (judge ordered issuance of writ of sequestration); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (court clerk issued writ of replevin); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (court clerk issued summons of garnishment); Kacher v. Pittsburgh National Bank, 545 F.2d 842 (3d Cir. 1976) (involving Pennsylvania replevin procedures declared unconstitutional in Fuentes ). The state is not in a "position of interdependence" or a "symbiotic relationship" with the garagemen, since it did not and could not derive any benefit from their decision to retain plaintiffs' vehicles. Compare Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357-59, 95 S.Ct. 449, 42 L.Ed.2d 477 (1975); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 174-77, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). Cf. Braden v. University of Pittsburgh, 552 F.2d 948 (3d Cir. 1977) (denial of University's motion to dismiss for want of state action was correct). 6b

Contrary to the plaintiffs' suggestion, we are not convinced that this case is comparable to Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), or Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969). In Reitman, the Supreme Court held that California had become involved in the discriminatory acts of private individuals when it enacted a constitutional amendment which not only repealed existing open housing legislation but also prohibited the governor, the legislature, and all agencies and...

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