Gibbs v. Titelman, Civ. A. No. 72-2165.

• Decision Date: 08 November 1973
• Docket Number: Civ. A. No. 72-2165.
• Citation: 369 F. Supp. 38
• Parties: Harry H. and Thelma GIBBS et al. v. William A. TITELMAN, Individually and as Director of the Bureau of Motor Vehicles of the Commonwealth of Pennsylvania, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

369 F. Supp. 38

Harry H. and Thelma GIBBS et al. v. William A. TITELMAN, Individually and as Director of the Bureau of Motor Vehicles of the Commonwealth of Pennsylvania, et al.

Civ. A. No. 72-2165.

United States District Court, E. D. Pennsylvania.

November 8, 1973.

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David A. Scholl, Chester, Pa., Jonathan Stein, Philadelphia, Pa., for plaintiffs, and James R. Adams, Harrisburg, Pa., for Commonwealth of Pa.

W. Bradley Ward, Ira P. Tiger, Roger M. Whiteman, Oliver C. Biddle, Leonard C. Homer, John J. Brennan, Tyson W. Coughlin, David L. Creskoff, George J. Miller, Philadelphia, Pa., for defendants.

OPINION

BECHTLE, District Judge.

On November 2, 1972, the above-named plaintiffs, purporting to act as a class, filed a complaint seeking to have a Pennsylvania state statutory scheme involving the repossession of motor vehicles declared unconstitutional;¹ and to have defendant, General Motors Acceptance Corporation ("GMAC"), and all parties purported to be similarly situated, enjoined from continuing to effect extrajudicial nonconsensual repossessions of motor vehicles. The complaint also sought to have the defendant, William A. Titelman, Pennsylvania Director of the Bureau of Motor Vehicles, enjoined from permitting the transfer of titles of motor vehicles repossessed in the above manner.

The litigation surrounding this action involved many issues, each of which were thoroughly briefed and argued at the several hearings and pretrial conferences had in this case over a period of months. Several memorandum opinions and orders, ruling on pretrial issues, were issued by the Court. Below is a chronological discussion of the pretrial issues and rulings in this case, followed by the Court's findings of facts and conclusions of law.

I. Temporary Restraining Order

On November 2, 1972, along with the complaint, the plaintiffs filed a motion for a Temporary Restraining Order ("TRO")² which sought:

(1) To immediately restrain defendant Titelman from transferring title of any nonconsensually repossessed motor vehicle in Pennsylvania;

(2) To immediately restrain defendant Auto-Road, Inc., from selling the automobile of named plaintiff Ella Lemar, which it had earlier repossessed; and,

(3) To order Auto-Road, Inc., to return plaintiff Lemar's automobile.

The granting of a TRO is predicated upon a finding of immediate and irreparable harm. See, Fed.R.Civ.P. 65. An informal hearing was held on the motion for a TRO on the same day; counsel appeared for the plaintiffs, GMAC, and Titelman. No one appeared for the defendant Auto-Road, Inc.

The Court denied the relief sought against defendant Titelman, for the reason that it did not appear from the specific facts sworn by the verified complaint that anything Titelman did caused the applicants the irreparable harm of which they complained. The Court also denied the application to order Ella Lemar's automobile returned to her for the reason that, until the evidence was introduced in an adversary proceeding on the validity of the statutes, it was not at all clear who had a greater right to the possession of the automobile in question. The Court did, however, grant the temporary restraint of the sale of the Lemar automobile by Auto-Road, Inc. On that point, the Court found that the facts sworn to by the plaintiffs showed that immediate and irreparable harm would result to Mrs. Lemar if the sale of her automobile were not temporarily restrained.

On November 9, 1972, a formal hearing was held to determine whether the TRO entered on November 2 as to the sale of the Lemar automobile should be extended. At the time of that hearing, an agreement was entered into by the owner of Auto-Road, Inc., and counsel for the Lemars. This agreement, involving possession and payments on the automobile, settled the private dispute between the Lemars and Auto-Road, Inc., thereby mooting the issue of extending the TRO.³

At the November 9, 1972, hearing, the Court also entertained argument from all interested parties at this point in the proceedings as to:

(1) The jurisdictional question of whether or not this is a proper case for convening a three-judge court pursuant to 28 U.S.C. § 2281 and § 2284; and,

(2) Whether jurisdiction lies for a single judge to hear this matter pursuant to 28 U.S.C. § 1343(3) and § 1343(4).

II. Three-Judge Court

28 U.S.C. § 2281, entitled "Injunction Against Enforcement of State Statute; Three-Judge Court Required," states:

"An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."

By its terms, § 2281 embraces only those cases in which an interlocutory injunction is sought to prevent the operation of a state statute "by restraining the action" of a state officer "in the enforcement or execution of such statute." Wilentz v. Sovereign Camp, W. O. W., 306 U.S. 573, 580, 59 S.Ct. 709, 713, 83 L.Ed. 994 (1939). Here, it appears on the face of the complaint that the statutes assailed are those prescribing a right of summary repossession. (See paragraphs 5 and 46 of the Complaint.) Although Titelman, a state officer, is named in the complaint,⁴ it is well settled that a state officer cannot be named perfunctorily or as a nominal defendant in an attempt to attain the necessary official action. Moody v. Flowers, 387 U. S. 97, 101-102, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1966); Wilentz v. Sovereign Camp, W. O. W., supra, 306 U.S., at pp. 579-580, 59 S.Ct. 709.

Neither Titelman nor any other state officer is clothed with the authority to enforce these statutes. The alleged deprivation prescribed by the statutes takes place before any action or indeed any knowledge on the part of defendant Titelman, comes into play. Enjoining Titelman would not redress this deprivation.

The statute under which Titelman acts is 75 P.S. § 208, entitled "Change of ownership by operation of law and judicial sale." The statute provides that, in the case of a transfer of ownership or possession of a motor vehicle, by operation of law (e. g., inheritance, an order in bankruptcy, or repossession, etc.), it becomes the duty of the one in possession of the motor vehicle to surrender the Certificate of Title to the person to whom possession has so passed. The secretary (Titelman), upon surrender of the outstanding Certificate of Title, or upon presentation of satisfactory proof to the secretary of ownership and right of possession to such motor vehicle, then issues to the new possessor a Certificate of Title.

Nothing in this statute provides for an extrajudicial deprivation of property. Assigning a Certificate of Title does not confer possession or ownership in anyone.⁵ In fact, "satisfactory proof of ownership and right to possession must exist" before a Certificate of Title can be assigned. We can see no language on the face of this statute (75 P.S. § 208) which would make it constitutionally suspect, and the plaintiffs have not alleged any facts to show that it is unconstitutional as applied. For these reasons, we find the jurisdictional prerequisite of action by a state officer absent and, therefore, must refuse, under 28 U.S.C. § 2281, the request to have a Three-Judge Court empaneled.

III. State Action

Plaintiffs also seek to invoke jurisdiction of the District Court under 28 U.S. C. § 1343(3) and § 1343(4).⁶ Section 1343(3) states:

"The District Courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, or any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;"

The statutory schemes in question, 69 P.S. §§ 623-627 and 12A P.S. § 9-503 and § 9-504, prescribed a right in a seller (also holder or secured creditor) to summarily repossess property which is the subject of a contract (or security agreement) when the buyer is in default under that contract. 69 P.S. §§ 623-627 are specifically limited to repossessions of motor vehicles pursuant to installment sales contracts.

The sole question for determination of this jurisdictional issue is whether the actions of the defendants in repossessing motor vehicles are performed "under color of any State law, statute ordinance, regulation, custom or usage . . ."

This exact issue has been litigated recently be a number of Federal and state courts. The majority of them hold that the act of self-help repossession is not performed "under color of any State law." See, Adams v. Southern California First National Bank, 492 F.2d 324, (9th Cir. 1973); McCormick v. First National Bank of Miami, 322 F.Supp. 604 (S.D.Fla.1971); Oller v. Bank of America, 342 F.Supp. 21 (N.D.Cal. 1972); Greene v. First National Exchange Bank of Virginia, 348 F.Supp. 672 (W.D.Va.1972); Kirksey v. Theilig, 351 F.Supp. 727 (D.Colo.1972); Pease v. Havelock National Bank, 351 F.Supp. 118 (D.Neb.1972); Colvin v. Avco Financial Services, 12 UCC Rep.Serv. 25 (D.Utah 1973); Shirley v. State National Bank of Connecticut (D.Conn.1973); Turner v. Impala Motors (W.D.Tenn. 1973); Mayhugh v. Bill Allen Chevrolet (W.D.Mo.1973); Kinch v. Chrysler Credit Corporation, 367 F.Supp. 436 (E. D.Tenn.1973); Messenger v. Sandy Motors, Inc., 121 N.J.Super. 1, 295 A.2d 402 (1972); Brown v. United States National Bank of Oregon, 509...