J-S56032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS MORGAN,                                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

3D METAL WORKS,

                            Appellant                  No. 81 MDA 2014


                Appeal from the Order Entered December 31, 2013
            in the Court of Common Pleas of Northumberland County
                       Civil Division at No.: CV-2013-00151


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 19, 2014

        Appellant, 3D Metal Works, appeals from the order enjoining its sale of

certain property of Appellee, Thomas Morgan. We reverse and vacate the

injunction.

        On June 16, 2011, Appellant acquired a judgment lien against Appellee

for unpaid truck repairs. Appellee filed for Chapter 7 bankruptcy on October

17, 2011. The bankruptcy court avoided the judicial lien of Appellant on July

24, 2012, and discharged Appellee’s debts on October 26, 2012. Appellant

holds a common law repairman’s lien on the truck which has remained in its

possession since the work was done.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S56032-14



       On January 23, 2013, Appellee commenced this action by filing a

complaint for injunctive relief and a motion for a “temporary restraining

order” in response to Appellant’s notice of intent to sell the truck. The court

immediately granted the motion and scheduled the matter for a January 28,

2013 hearing.       On February 12, 2013, because the parties agreed there

were no factual issues in dispute, the court directed them to file memoranda

of law in support of their respective positions.

       The court, on December 31, 2013, enjoined the sale stating, “although

[Appellant] may retain the common law lien it holds on [Appellee’s]

property, [Appellant] cannot be permitted to sell the vehicle, as the statute

authorizing such a sale has been held unconstitutional . . . .”        (Order,

12/31/13, at unnumbered page 1 (footnote omitted)).          Appellant timely

appealed on January 10, 2014.1
____________________________________________


1
  Pursuant to the court’s order, Appellant timely filed a Rule 1925(b)
statement on January 24, 2014.        The court entered its Rule 1925(a)
recorded reasons in lieu of an opinion on May 19, 2014 relying on the
reasons set forth in the December 31, 2013 opinion. See Pa.R.A.P. 1925.

      Initially, we must address the appealability of the underlying order
before reaching the merits of the issues presented. “Inasmuch, as the issue
of appealability affects our jurisdiction, we may raise it sua sponte. As a
general rule, this Court has jurisdiction only over appeals taken from final
orders. A final order is an order that disposes of all claims.” Altoona Reg’l
Health System v. Schutt, 2014 WL 4360290 at *4 (Pa. Super. filed
September 4, 2014) (citations omitted); see also Pa.R.A.P. 341. However,
Pennsylvania Rule of Appellate Procedure 311(a)(4) carves out an exception
for orders that grant or deny injunctions.           See Pa.R.A.P. 311(a)(4)
(providing for interlocutory appeals of injunctions).

(Footnote Continued Next Page)


                                           -2-
J-S56032-14



      Appellant raises two issues for our review:

      I.     Whether the [trial] court erred in determining that Parks
      v. “Mr. Ford” [, 556 F.2d 132 (3d. Cir. 1977),] precludes
      [Appellant] from selling the vehicle on which it holds a common
      law lien?

      II.   Whether the trial court erred in recognizing a common law
     lien but precluding any means to enforce it?

(Appellant’s Brief, at 2 (footnote omitted)).

      Our standard of review is well-settled:

             Ultimately, the grant or denial of a permanent injunction
      will turn on whether the lower court properly found that the
      party seeking the injunction established a clear right to relief as
      a matter of law. This inquiry involves a legal determination by
      the lower court. Accordingly, appellate review in these cases
      determines whether the lower court committed an error of law in
      granting or denying the permanent injunction. Our standard of
      review for a question of law is de novo, and our scope of review
      is plenary.

Rohm and Haas Co. v. Lin, 992 A.2d 132, 146 (Pa. Super. 2010), cert.

denied, 132 S.Ct. 852 (2010) (citations and quotation marks omitted).

      The statute at issue is as follows:

      § 11. Procedure for sale of personal property under
      common law lien

      Hereafter where any person, corporation, firm, or copartnership
      may have what is known as a “common law lien” for work done
      or material furnished about the repair of any personal property
                       _______________________
(Footnote Continued)

      Here, the December 31, 2013 order is not a final order. The trial court
did not file a separate order on the complaint for injunctive relief and there
is no entry of judgment. (See Order, 12/31/13, at unnumbered page 1);
see also Pa.R.A.P. 341. However, because the underlying order granted an
injunction, our jurisdiction is proper. See Pa.R.A.P. 311(a)(4).



                                            -3-
J-S56032-14


      belonging to another person, corporation, firm, or copartnership,
      it shall be lawful for such person, corporation, firm, or
      copartnership having said common law lien, while such property
      is in the hands of the said person, corporation, firm, or
      copartnership contributing such work and material, to give notice
      in writing to the owner of the amount of indebtedness for which
      said common law lien is claimed for the labor and material that
      has entered into the repair, alteration, improvement, or
      otherwise, done upon the said property. If the said claim for
      said work or material is not paid within thirty days the said
      person, corporation, firm, or copartnership to which said money
      is due, may proceed to sell the said property, as hereinafter
      provided: Provided, however, That the owner of said property, if
      he disputes said bill, may issue a writ of replevin, as provided by
      law, within the said thirty days, and the said dispute shall be
      settled in said action of replevin.

6 P.S. § 11.

      In its first issue, Appellant argues that “[t]he [trial] court erred in

applying the case of Parks v. “Mr. Ford”, supra, . . . as [its] holding . . .

was overturned by the Supreme Court of the United States in Flagg Bros.,

Inc. v. Brooks [436 U.S. 149 (1978)].” (Appellant’s Brief, at 3) (footnote

omitted). We agree in part and disagree in part.

            A discharge in bankruptcy does not extinguish valid liens
      on property of a debtor. A discharge voids and prospectively
      enjoins collection of a judgment as the personal liability of a
      debtor.    [The] injunction does not prevent a creditor from
      enforcing a valid lien on property existing prior to the time of the
      entry of the order for relief.

In re Wells, 125 B.R. 908, 909 (Bkrtcy. D. Del. 1991) (emphasis in original

and citations omitted).     See also, In re Northrup, 220 B.R. 855, 863

(Bkrtcy. E.D. Pa. 1998) (holding that common law lien retained until entire

secured lien liquidated).




                                     -4-
J-S56032-14



       “[I]t is well-settled that this Court is not bound by the decisions of

federal courts, other than the United States Supreme Court . . . however, we

may use them for guidance to the degree we find them useful and not

incompatible     with   Pennsylvania      law.”   Eckman   v.   Erie   Insurance

Exchange, 21 A.3d 1203, 1207 (Pa. Super. 2011) (citations omitted).

       In this case, in support of its argument, Appellant relies on federal

caselaw and looks to the dissent in Flagg Bros., and its “cit[ing] [Parks] as

an example of the type of actions which previously had been banned by

other courts.” (Appellant’s Brief, at 4). Appellant further claims that Parks

is inapplicable because the concern in that case was the lack of the due

process requirements of notice and the opportunity to be heard. (See id. at

5).2   Instead, Appellant suggests that Appellee was afforded due process
____________________________________________


2
  In Parks, the case on which the trial court relies here, the Third Circuit
specifically addressed the statute at issue in the instant matter and
summarized the statutory scheme as follows:

       . . . the garageman may proceed with the sale in the same
       manner as personal property is sold by a sheriff or constable.
       The sale is as conclusive to the title conveyed as if sold by a
       sheriff or constable. After satisfying the amount of the lien and
       his own costs, the garageman must pay the remainder to the
       owner upon demand or, if the owner does not demand those
       funds, to the county treasurer. . . . [S]tate action is present
       when a garageman sells a customer’s vehicle under the statutory
       scheme just described.

Parks, supra at 141 (citations and quotation marks omitted). The Third
Circuit found state action because the garageman’s power to sell the
property arises from the statute and:

(Footnote Continued Next Page)


                                           -5-
J-S56032-14



when Appellant filed a civil action for the unpaid repair bill, a hearing was

held, and judgment was ultimately entered in Appellant’s favor. (See id.)

We are not persuaded by Parks, Flagg Bros., or this argument.




                       _______________________
(Footnote Continued)

      [b]y thus authorizing sales to take place, directing how they are
      to be carried out, and giving them the effect of judicial sales,
      Pennsylvania has quite literally delegated to private individuals,
      powers traditionally exclusively reserved to sheriffs and
      constables. . . . [T]hat grant of power has the same effect for
      state action purposes as if Pennsylvania had endowed private
      individuals with the same authority to arrest suspects and to
      execute warrants as state and local police possess.

Id. (citation and quotation marks omitted).

       Therefore, under Parks, the statute at issue in the instant matter is
unconstitutional because “(1) the garageman need not file a bond to protect
the vehicle owner, (2) the vehicle will typically be sold for a price well below
its market value, and (3) any vehicle, no matter how valuable, may be sold
to satisfy any repairman’s lien, no matter how small.” Id. at 143.

     On the other hand, Flagg Bros. addressed the self-help provision of
the New York Uniform Commercial Code concerning a warehouseman’s lien.
See Flagg Bros., supra at 151.           The United States Supreme Court
determined that “[t]he proposed sale . . . under [the statute] is not the only
means of resolving this purely private dispute.” Id. at 160.

       Therefore, the Court held that there is no state action where the state
is “in no way responsible for . . . a [private] decision which the state . . .
permits but does not compel, to threaten to sell [a] respondent’s
belongings.” Id. at 165.

       The Third Circuit revisited Parks in light of Flagg Bros. in Chrysler
Corp. v. Fedders Corp., 670 F.2d 1316 (3d. Cir. 1982), and expressed, in
dicta, that “[i]t is unlikely that our holding . . . in Parks . . . survives Flagg
Bros. . . . .” Chrysler Corp., supra at 1327.



                                            -6-
J-S56032-14



      We first note that the parties do not dispute that Appellant has a valid

common law lien on Appellee’s truck that survives his bankruptcy discharge.

(See Appellant’s Brief, at 3, 5; Appellee’s Brief at, 2).      Moreover, the

bankruptcy court specifically held that Appellant “has an unavoidable

common law lien . . . [and] [t]he [j]udicial lien of [Appellant] is avoided.”

(Bankruptcy Order, 7/24/12, at unnumbered page 1). On October 26, 2012,

the bankruptcy court discharged Appellee.          (See Bankruptcy Order,

10/26/12, at unnumbered page 1).

      Accordingly, our review of the record supports the court’s finding that

Appellant “may retain the common law lien it holds . . . .” (Order, 12/31/13,

at unnumbered page 1). However, we disagree with the trial court’s reliance

on Parks because it is not dispositive of this case. Appellant’s common law

lien survives the bankruptcy discharge and is enforceable. See In re Wells,

supra, at 909; In re Northrup, supra, at 863.

      Therefore, we conclude that the trial court erred in holding that

Appellant’s sale of the vehicle was precluded by Parks.      See Rohm and

Haas, supra at 146. Accordingly, Appellant’s first issue merits relief.

      Next, Appellant argues that “[i]t is impossible to conceive that nearly

everyone acknowledges that a repairman has a common law lien on repaired

goods in his possession, but has no means to enforce it.” (Appellant’s Brief,

at 6).   However, as discussed above, we have found that the trial court

erred.   Thus, we do not reach the merits of Appellant’s second issue.

Moreover, this issue is waived.

                                    -7-
J-S56032-14



     “Issues not developed by citation to appropriate legal authority are

waived.” Cicconi Auto Body v. Nationwide Ins. Co., 904 A.2d 933, 938

(Pa. Super. 2006) (citation omitted); see also Pa.R.A.P. 2119(a)-(c).

     Here, Appellant is advocating for a change in the current law but has

failed to cite any caselaw to support its position. (See Appellant’s Brief at

6). Accordingly, Appellant’s second issue is waived. See Cicconi, supra at

938; Pa.R.A.P. 2119(a)-(c).

     Order reversed and injunction vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2014




                                    -8-
