Associates Financial Services Co. v. O'Dell

417 A.2d 604, 491 Pa. 1, 29 U.C.C. Rep. Serv. (West) 1422, 1980 Pa. LEXIS 751

• Court: Supreme Court of Pennsylvania
• Decided: July 3, 1980
• Docket: 93
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

This case involves the common law doctrine of possessory liens.¹ On March 25, 1975, appellants William F. and Mary E. O’Dell purchased a tractor from Anderson Sales Service, Inc. under an installment sales contract and security agreement. The contract and agreement were then assigned to appellee Associates Financial Services Company, Inc. In February 1976, William O’Dell drove the tractor in the course of business to Texarkana, Texas where it became disabled. O’Dell requested appellant A. G. Turley, whose business in Zelienople, Pennsylvania included truck towing, repairs, and storage, to drive to Texas and haul the tractor back to Pennsylvania. Turley complied with this request, incurring expenses of $2,772.

Meanwhile the O’Dells defaulted on the payments owed Associates under the installment sales contract. Associates, finding the tractor in Turley’s possession, brought this action in replevin against Turley and the O’Dells. Turley counterclaimed that he was entitled to a possessory lien on the tractor for expenses incurred in hauling and storing the tractor. The trial court awarded Associates possession of the tractor, but granted Turley a possessory lien on the tractor for the claimed expenses of $2,772. The Superior Court, 262 Pa. Super. 584, 396 A.2d 1324, reversed the trial court in part, holding that a possessory lien was not validly imposed upon the tractor because Associates never consented to Turley’s services. We agree and accordingly affirm.²

“[I]t is a well-settled principle of the common law that he who by labor, skill, or materials adds value to the chattel of another . . . has a possessory lien thereon for the value of his services and may retain the chattel in his possession until the same be paid.” Brown on Personal Property 394-95 (3rd ed. 1975); see, e. g., Saxton v. Gemehl, 72 Pa.Super. 177 (1919). At its inception, the common law possessory lien was restricted to those circumstances where a lien creditor rendered his services upon the implied promise of the debtor to repay him. Since the action of assumpsit was not recognized at early common law, the possessory lien provided such creditors an extrajudicial remedy to collect their debt. Consistent with this limited purpose, the lien did not arise where the creditor had an action at law .upon an express contract. When the action of assumpsit on contracts implied in fact became available, however, the possessory lien was not abolished, but for reasons which are not clear was instead extended to creditors under express contracts. See Brown on Personal Property, supra at 394.

Possessory liens are fundamentally consensual in nature, arising from an agreement, either express or implied, between the owner of the goods and the artisan who renders services for those goods. See, e. g., Younger v. Plunkett, 395 F.Supp. 702, 707 (E.D.Pa.1975) (interpreting Pennsylvania law). That possessory liens arise exclusively in the context of express or implied consent is long established in the jurisprudence of this Commonwealth. As this Court stated in Meyers & Bro. v. Bratespiece, 174 Pa. 119, 121, 34 A. 551, 551 (1896) (quotation omitted):

“Whenever a workman or artisan by his labor or skill increases the value of personal property placed in his possession to be improved he has a lien upon it for his proper charges until paid, but in order to charge a chattel with this lien, the labor for which the lien is claimed must have been done at the request of the owner or under circumstances from which his assent can be reasonably implied. It does not extend to one not in privity with the owners.”

See Estey Co. v. Dick, 41 Pa.Super. 610 (1910); Stern v. Sica, 66 Pa.Super. 84 (1917); Hecht v. Valkone Dye & Finishing Works, 66 Pa.Super. 97 (1917); Bankers’ Commercial Security Co. v. Brennan, 75 Pa.Super. 199 (1920); Leitch v. Sanford Motor Truck Co., 279 Pa. 160, 123 A. 658 (1924); Automobile Finance Co. v. Markman, 82 Pa.Super. 478 (1924); Midland Credit Co. v. White, 175 Pa.Super. 314, 104 A.2d 350 (1954); R. E. Lee, Power of Possessor of Personal Property to Create Lien for Repairs and Storage Charges Superior to Existing Interests of Others, 90 U.Pa.L.Rev. 910, 922-28 (1942); see also Welded Tube Co. v. Phoenix Steel Corp., 377 F.Supp. 74 (E.D.Pa.1974) (interpreting Pennsylvania law); Younger v. Plunkett, supra.

There is nothing in this record to suggest that Associates expressly consented to appellant Turley’s towing and storage services.³ So too, nothing in the circumstances of this case suggests implied consent on the part of Associates. Associates obtained a security interest on the tractor to protect its loan from other creditors of the O’Dells, as well as from default by the O’Dells. Surely such circumstances do not support a conclusion that Associates authorized the O’Dells to encumber Associates’ secured interest. Rather, they suggest that Associates intended that the O’Dells personally incur the expenses necessary to the maintenance of the tractor and thereby allow Associates to retain its security unencumbered. Additionally, at the time Turley entered the contract with the O’Dells, the disabled tractor did not pose a threat to the public welfare and Turley had ample opportunity to check the financial status of the tractor and arrange an appropriate method of payment.⁴ Appellant Turley is therefore not entitled to a possessory lien on the tractor.

This holding does not unfairly dispose of appellant Turley’s claim of monies owed for services rendered. When the O’Dells breached their contract with Turley, he could have sued them for contract damages. Further, our conclusion is consonant with the recognized importance of the free flow of credit to consumer and business transactions. “The commercial customs of to-day do not favor the tying up of personal property by liens; and, if the courts should now countenance any such general attitude toward the credit system . . ., business, as that term is presently understood, would soon come to a standstill.” Welded Tube Co. v. Phoenix Steel Corp., 512 F.2d 342, 345 (3rd Cir. 1975), quoting Mitchell v. Standard Repair Co., 275 Pa. 328, 332, 119 A. 410, 411 (1923); see R. E. Lee, Power to Create Lien, supra at 927. Accordingly, the order of the Superior Court must be affirmed.⁵

Order affirmed.

FLAHERTY, J., joined by LARSEN, J., files a dissenting opinion.

1 . The Uniform Commercial Code does not govern the determination of common law possessory liens. See Comment to Section 9-310.

2 . This case was reassigned to this writer on April 16, 1980.

3 . Appellant Turley now, for the first time, claims in his brief that he remembers that Associates expressly consented to his services. In light of the dilatory presentation of this new theory, we must consider appellant’s new claim waived. See, e. g., Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

4 . In Pennsylvania, the notation of a security interest against a vehicle must appear on the certificate of title. 75 Pa.C.S. § 1106(a).

5 . The parties do not dispute that Associates is an “owner” of the tractor for purposes of a common law possessory lien. “Ownership of property” or “property” does not denote the chattel itself, but rather means the “bundle of rights” inhering in a person’s relation to the chattel. See Commonwealth v. Two Ford Trucks, 185 Pa.Super. 292, 300, 137 A.2d 847, 852 (1958); accord United States v. General Motors Corp., 323 U.S. 373, 377-78, 65 S.Ct. 357, 359, 89 L.Ed. 311 (1945). Whatever name is used to refer to the various possible interests in a chattel, it remains true that those people with substantial interests in a chattel have property rights, or ownership, in that chattel for specific purposes. Accord Commonwealth v. Two Ford Trucks, supra, 185 Pa.Super. at 301, 137 A.2d at 852 (“Every bailment lessor . is an owner for certain purposes. . . ”)

For a time, motor vehicles were sold on credit in Pennsylvania under bailment leases. See generally Motor Vehicle Sales Finance Act, Act of June 28, 1947, P.L. 1110, § 2, 69 P.S. § 602. More recently, these sales have occurred under installment contracts and security agreements. See 69 P.S. §§ 601 et seq.; Uniform Commercial Code — Sales, Act of October 2, 1959, P.L. 1023, §§ 2 et seq., 12A P.S. §§ 2-101 et seq. Though the names of the transactions and the specific rights of parties have changed with time, it is still undeniably true that a creditor like Associates has a very substantial interest in the tractor. Given Associates’ objectives in acting as the O’Dells’ creditor, as well as reasons of public policy, it is only common sense to consider Associates an “owner” for purposes of common law possessory liens, and thus require Associates’ consent to the establishment of such a lien on the tractor.

We note that the definition of owner in the Motor Vehicle Code, 75 Pa.C.S. § 102, is inapposite here. It is hornbook law that the meaning of “owner” will vary according to its context and the circumstances of its use. See, e. g., Douglas v. Pratt, 102 R.I. 445, 447 48, 231 A.2d 486, 488 (1967); Petition of Brandt, 241 Minn. 180, 185-86, 62 N.W.2d 816, 820 (1954); General Realty Impt. Co. v. New Haven, 133 Conn. 238, 239-41, 50 A.2d 59, 60 (1946). This case is not centrally concerned with the Motor Vehicle Code, but rather with the common law doctrine of possessory liens, two bodies of law whose purposes and developments are rather distinct.