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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL SCOTT MILLER,
Plailltiff
: DOCKET NO. 1998-4304 CIVIL
VS.
EQUITY
RON ALLEN,
ALLEN AUTO SALES & SERVICE, and the
DEPARTMENT OF TRANSPORTATION
OF THE COMMONWEALTH OF
PENNSYL VANIA,
Respol/(Ient
ORDER OF COURT
NOW, this
day of
, 1998, having determined that this Court is
without jurisdiction in this action as it relates to the Commonwealth of Pennsylvania, Department
of Transportation and that this action against the Commonwealth of Pennsylvania, Department of
Transportation is barred by sovereign immunity, the Preliminary Objections of the Commonwealth
of Pennsylvania, Department of Transportation are granted and the above-action is dismissed as it
relates to the Commonwealth of Pennsylvania, Department of Transportation.
BY THE COURT,
Edward E. Guido,
J.
AlIcn's Auto Salcs & Scrvicc which informcd thc Dcpartmcnt that thc black 1967 Mcrcury
Cougar Coupc, Vchiclc Idcntification Numbcr (VIN) 7F91 C54213, was in thc posscssion of
AlIcn's Auto Salcs & Scrvicc, R.D. III, 500 Pinctown Road, Lewisbcrry, Pcnnsylvania
17339.
3. The Departmcnt, pursuant to 75 Pa.C.S. *7305(a), notificd Plaintiff
Miller by certified mail, rcturn reecipt requested, in correspondcncc postmarked February 25,
1998, that the vehicle had been declared abandoned.
4. Pursuant to 75 Pa.C.S. g7305(b), that notice described the make, model, and
title number of the abandoned vehicle; the location where the vehicle was being held; informed
Plaintiff Miller that he had 30-days from the notice date to reclaim the vehicle; and, informed
Plaintiff Miller that his failure to reclaim the vehicle would be deemed consent by the owner to the
destruction, sale, or other disposition of the vehicle.
5. On February 25, 1996, that notice was mailed to Plaintiff Miller at 1460 Holly
Pike, Carlisle, Pennsylvania 17013, his last known address of record and the address which he uses
in the complaint filed in this case.
6. The correspondence mailed February 25, 1996, to Plaintiff Miller was returned
to the Department as unclaimed mail. Notations on the correspondence indicate that Plaintiff Miller
was served with notice of this certified mail by the U.S. Postal Service on February 26, 1998, and
March 4, 1998. The notations also reflect that the correspondence was retumed to the Depa~ment
on March 13, 1998, indicating the correspondence was unclaimed by Plaintiff Miller.
7. On April 1, 1998, the Department processed fonn MV-956, Salvor's
ApplicationlInvoice for Settlement, which was submitted by Allen's Auto Salcs & Service
with a ccrtification datc of March 26, 1998. In this form AlIcn's Auto Sales & Scrvicc
ccrtificd to the Dcpartmcnt that the black 1967 Mcrcury Cougar Coupc, Vchiclc
Idcntification Numbcr (VIN) 7F91 C542 I 3, Titlc Numbcr 18712581, had remained
unclaimcd for 30 days from the datc of the noticc and that AlIcn's Auto Salcs & Scrvice was
applying for a certificate of salvage.
8. As a result of processing foml MV-956, the Department, in accordance
with 75 Pa.C.S. SS7307 and 7309, issued Allen's Auto Sales & Service a certificate of
salvage for the 1967 Mercury Cougar Coupe, Vehicle Identification Number (VIN)
7F91C54213, Title Number 18712581. Notably, the issuance of that certificate of salvage
divested all right, title and interest the owner, Plaintiff Miller, had in that vehicle. 75 Pa.C.S.
S7309(d).
9. On or about July 27, 1998, Plaintiff Miller, through his counsel, filed
in the Court of Common Pleas of Allegheny County, a Motion for Writ of Seizure and a
Complaint seeking an Action in Replevin, an Action for Damages, and a Constructive Trust
in relation to the 1967 Mercury Cougar Coupe, Vehicle Identification Nurnber (VIN)
7F91C54213, Title Number 18712581.
10. The Department of Transportation of the Commonwealth of
Pennsylvania is named as a defendant in this action.
II. The Department of Transportation is an executive agency of the
Commonwealth of Pennsylvania and is therefore a part of the Commonwealth Government.
71 Pa.C.S. S61; 2 Pa.C.S. SlOl.
....
12. The Commonwealth Court of Pennsylvania hasjurisdiclion ovcr all civil
actions or proceedings againsllhe Commonwcalth Govcrnment. 42 Pa.C.S. *761; CR Y. II/c.
\'. Mill Sel'l'ice, II/c., 536 Pa. 462, -' 640 A.2d 372, 377-378 (1994); Pas/ore v.
COII/mol/weal/h of Pel/I/sylval/ia. Slate System of Higher Educa/iol/, 618 A.2d 1118 (Pa.
Cmwlth. 1992).
13. Thc Court of Common Picas of Cumberland County does not have
either original or concurrent jurisdiction over this matter.
FAILURE TO ST ATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
14. The Department incorporates the averments in paragraphs I through 13
as though they were set forth at length herein.
15. The affirmative defense of sovereign immunity may be raised in
preliminary objections in the nature of a demurrer where it is apparent that none of the
exceptions to government immunity apply. Gallagher v. City of Philadelphia, 597 A.2d 747
(Pa. Cmwlth. 1991).
16. This Court's role in ruling upon preliminary objections in the nature of
a demurrer is to determine whether the facts pled are sufficient to permit the action to
continue. Ruby v. Department of Transportation, 632 A.2d 635, 636 (Pa. Cmwlth. 1993);
Curtis v. Clelal/d, 552 A.2d 3 I 6, 3 I 8 (Pa. Cmwlth. 1988).
17. Preliminary objections should be sustained when it is clear that the law.
will not permit a rceovery. Ruby; Clelal/d.
18, Pursuant to the Pcnnsylvania Constitution Article I, Section II, and I
Pa.C.S. !}23l 0, thc Commonwealth, its oflicials and employecs acting within thc scopc of
their employmcnt continue to enjoy sovereign immunity unless that immunity has becn
specifically waived by the General Assembly. BOl/savage v. Borough of Warrior RUI/, 676
A.2d 1330, 1331 (Pa. Cmwlth. 1996).
19. Actions which scck to compel affinnative action by the Commonwealth,
its officials or employees are barred by the doctrine of sovereign immunity. Bonsavage.
Therefore, in this case Plaintiff Miller's action against the Department seeking to compel the
Department to return the 1967 Mercury Cougar Coupe, Vehicle Identification Nurnber (VIN)
7F91C54213, Title Number 18712581 and/or the certificate of title thereto is barred by
sovereign immunity.
20. All acts for which the General Assernbly has waived sovereign
immunity are set forth at 42 Pa.C.S. 98522.
20. The General Assembly has not waived the affirmative defense of
sovereign immunity in this case.
21. The Commonwealth Court of Pennsylvania has specifically held that
the statutory waiver of immunity for personal property in the care, custody or control of the
Department does not apply to this case. Bufford v. Pennsylvania Department of
Transportation, 670 A.2d 75 I (Pa. Cmwlth. 1996); see also, Sugalski v. Commonwealth of
Pennsylvania, Commissioner of the Pennsylvania State Police, 569 A.2d 1017 (Pa. Cmwlth.
. .,.;".~......,',,,;,~:.,:<:~,,,::-~-:.:::;o;:.r."
1990). In those cascs, the Court held that in ordcr for the waiver of immunity relating to the
care, custody, or control of personal property to apply, the personal property itself must
injure the plaintiff.
22. Therefore, even if the Department had somehow inappropriately
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handled the paperwork in this case, the waiver relating to personal property found at 42
Pa.C.S. !l8522(b)(3), would not apply because Plaintiff Miller has not alleged nor has he been
specifically injured by the personal property involved in this case.
WHEREFORE, the Commonwealth of Pennsylvania, Department of
Transportation prays that this Court will grant these preliminary objections and dismiss this
action as it pertains to the Commonwealth of Pennsylvania, Department of Transportation
in that this Court lacks jurisdiction of the matter and the action is barred by sovereign
immunity.
. Barbara A. Darkes
Acting Assistant Counsel In-Charge
Attomey J.D. No. 77419
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
Motor Vehicle Section
1101 South Front Street - 3rd Floor
Hmisburg, Pennsylvania 17 I 04-25 I 6
(717) 787-2830
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY
NO. 1998-4304 CIVIL
MICHAEL SCOTT MILLER,
Plaillliff
vs.
RON ALLEN, d/b/a ALLEN AUTO SALES AND SERVICE, and
DEPARTMENT OF TRANSPORTATION OF THE COMMONWEALTH OF PA
Respondent
Entry of Appearance
TO THE PROTHONOTARY:
Please enter my appearance on behalf of the Commonwealth of Pennsylvania,
Department of Transportation, Bureau of Motor Vehicles, Respondent, in the above-entitled
action.
Barbara A. Darkes
Acting Assistant Counsel In-Charge
Attomey LD. No. 77419
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
Motor Vehicle Section
1101 South Front Street - 3rd Floor
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL SCOTT MILLER,
Plaintiff
: DOCKET NO. 1998-4304 CIVIL
VS.
RON ALLEN,
ALLEN AUTO SALES & SERVICE, and the
DEPARTMENT OF TRANSPORT A TlON
OF THE COMMONWEALTH OF
PENNSYL VANIA,
Respondent
EQUITY
ANSWER TO MOTION FOR ISSUANCE OF WRIT OF SEIZURE
NOW COMES the Commonwealth of Pennsylvania, Department of Transportation,
Bureau of Motor Vehicles (Department), who, by and through its attomey, Barbara A. Darkes,
Esquire, submits the following answer to the Motion for Writ of Seizure filed by Michael Scott
Miller (Miller) in the above-captioned matter.
Admitted.
The Department is without sufficient information to either admit or deny this
The Department is without sufficient information to either admit or deny this
This is a conclusion ofIaw to which no response is necessary.
Denied. By way of further response, the Department asserts that Miller will
not be successful in his actions against the Department. As set forth in greater detail in the
Preliminary Objections filed in this case on August 10, 1998, this Honorable Court lacks jurisdiction
over this case in that it is an action against the Commonwealth government, namely the Department
of Transportation, an exccutivc agcncy of the Commonwcalth of Pcnnsylvania. Thcrefore, pursuunl
to 42 Pa.C.S. *761 (a)( I), this mattcr fulls within the originul jurisdiction of thc Commonwcalth
Court of Pennsylvaniu. Furthcrmore, this action aguinst thc Dcpartment is barrcd by sovcrcign
immunity as provided for in thc Constitution of this Commonwcalth und subsequent statutory
provisions enactcd by thc Gencral Asscmbly. See, Pa. Cons!. art. I, *11; 1 Pa.C.S. *2310; 42
Pa.C.S. **8521-8522.
NEW MATTER
6. The Departmcnt incorporatcs the answers to paragraphs I through 5 as though
they were set forth at length herein.
7. The Department is not nor has it evcr been in possession of a 1967 Mercury
Cougar Coupe, VIN 7F91C54213, Title Number 18712581 nor is the Department in possession of
the title for that vehicle. Rather, the Department merely has the ministerial function of issuing titles
to the owners of vehicles. Therefore, it would be impossible for this vehicle or the title to the
vehicle to be seized from the Department.
8. The Department, pursuant to 75 Pa.C.S. S7305(a), notified Plaintiff Miller by
certified mail, return receipt requested, that the vehicle was declarcd abandoned.
9. Pursuant to 75 Pa.C.S. !j7305(b), that notice described the make, model, and
title number of the abandoned vehicle; the location where the vehicle was being held; informed
Plaintiff Miller that he had 30-days from the notice date to reclaim the vehicle; and, informed
Plaintiff Miller that his failure to reclaim the vehicle would be deemed consent by the owner to the
destruction, sale, or other disposition of the vehicle.
10. On February 25, 1996, that notice was mailed to Plaintiff Miller at 1460 Holly
Pike, Carlisle, Pennsylvania 17013, his last known address of record and the address which he uses
hc uses in the complaint filcd in this cusc.
II. Thc corrcspondcncc muiled Fcbnmry25, 1996, to PlailltiffMillcr was rcturncd
to thc Dcpartment as uncluimcd mail. Notutions on thc corrcspondcnce indicatc thut PluintiffMillcr
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was scrvcd with noticc of this ccrtificd muil by the U.S. Postal Scrvicc on Fcbruary 26, 1998 und
March 4, 1998. The notations also rcflcct thutthc corrcspondcncc wus rcturncd to thc Dcpartmcnt
on March 13,1998, indicating the corrcspondcncc was uncluimcd by PluintiffMillcr.
Whercforc, bascd upon thc filets thutthc Dcpurtmcnt pcrformcd ull of its ministcrial
acts as required by law, the Commonwcalth ofPcnnsylvaniu, Departmcnt of Transportution pruys
that this Court will cnter an order dcnying the writ of seizurc as it relutes to the Dcpartment of
Transportation.
Barbara A. Darkes
Acting Assistant Counsel In-Charge
Attorney l.D. No. 77419
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
Motor Vehicle Section
1101 South Front Strcet - 3rd Floor
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
MICHAEL SCOTT MILLER,
Plailltiff
: DOCKET NO. 1998-4304 CIVIL
VS.
RON ALLEN,
ALLEN AUTO SALES & SERVICE, Ilnd tIlC
DEPARTMENT OF TRANSPORTATION
OF THE COMMONWEAL Tn OF
PENNSYL VANIA,
Respolldem
EQUITY
ORDER OF COURT
NOW, this
duy of
, 1998, huving determined that this Court is
without jurisdiction in this action as it rclates to the Commonwcalth ofPcnnsylvania, Department
of Tmnsportation and thut this action against the Commonwcalth ofPcnnsylvania, Department of
Transportation'is barred by sovereign immunity, thc Prcliminary Objections of the Commonwealth
of Pennsylvania" Department ofTmnsporlation arc grantcd and the above-action is dismissedas it
relates to the Commonwcalth of Pennsylvania, Department of Transportation.
BY THE COURT,
.'.
Edward E. Guido,
J. .
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL SCOTT MILLER,
Plailltiff
: DOCKET NO. 1998-4304 CIVIL
vs.
RON ALLEN,
ALLEN AUTO SALES & SERVICE, and the
DEPARTMENT OF TRANSPORTATION
OF THE COMMONWEALTH OF
PENNSYLVANIA,
Respolldent
EQUITY
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NOW COMES the Commonwealth ofPelillsylvania, Dcpartment of Transportation,
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PRELIMINARY OBJECTIONS TO COMPLAINT AND:;' ::,
MOTION FOR WRIT OF SEIZURE ';.;~:
Bureau of Motor Vehicles (Department), who, by and through its attorncy, Barbara A. Darkes,
Esquire, submits the following Prcliminary Objections, pursuant to Pa.R.C.P. 1028 und 1078, to the
Complaint and Motion for Writ of Seizurc filed by Michacl Scott Miller (Miller) in the above-
captioned matter.
LACK OF .JURISDICTION
I. On or about February 12, 1998, the Silver Springs Police Department,
6475 Carlisle Pike, Mechanicsburg, Pennsylvania 17055, declared a black 1967 Mercury
Cougar Coupe, Vehicle Identification Number (VIN) 7F91C54213 abandoned and requested
that Allen's Auto Sales & Service, a licensed Pennsylvania salvor. remove the vehicle from
the location of Milli;r & Sams, 6489 Carlisle Pike.
2. On February 23, ] 998, the Dcpartment processed form MV-952 (P?lice
Requcst for Removal of Abandoned Vehicle), which was submitted to the Department by
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Allen's Auto Sales & Service which informed the Department that thc black 1967 Mcrcury
Cougar Coupe, Vehicle Identification Number (VIN) 7F91 C54213, was in the possession of
Allen's Auto Sales & Service, R.D. #1, 500 Pinetown Road, Lewisberry, Pcnnsylvania
17339.
3. The Department, pursuant to 75 Pa.C.S. ~7305(a), notified Plaintiff
Miller by certified mail, retum receipt requested, in correspondence postmarked February 25,
1998, that the vehicle had been declared abandoned.
4. Pursuant to 75 Pa.C.S. *7305(b), that notice described the make, model, and
title number of the abandoned vehicle; thc location where the vehicle was being held; informed
Plaintiff Miller that hc had 30-days from the notice date to reclaim the vehicle; and, informed
PluintiffMiIler that his failure to reclaim the vehicle would be deemed consent by the owner to the
destruction, sale, or other disposition of the vehicle.
5. On February 25, 1996, thut notice was mailed to Plaintiff Miller at 1460 Holly
Pike, Carlisle, Pennsylvania 17013, his last known address of record and the address which he uses
in the complaint filed in this case.
6. The correspondence mailed February 25, 1996, to PlaintiffMiIler was returned
to the Department as unclaimed mail. Notations on the correspondence indicate that PlaintiffMiIler
was served with notice of this certified mail by thc U.S. Postal Service on February 26, 1998, and
March 4, 1998. The notations also reflcct that the correspondence was returned to the Department
on March 13, 1998, indicating the correspondence wus unclaimed by Plaintiff Miller.
7. On April!, 1998, the Department processed form MV-956, Salvor's
ApplicationlInvoice for Settlement, which was submitted by Allen's Auto Sales & Service
with a ccrtification datc of March 26, 1998. In this form Allcn's Auto Salcs & Scrvicc
ccrtificd to thc Dcpartmcnt thut thc bluck 1967 Mcrcury Cougar Coupc, Vchiclc
Idcntification Numbcr (V IN) 7F91C54213, Titlc Numbcr 18712581, had remaincd
unclaimed for 30 days from thc datc of the noticc and that Allen's Auto Salcs & Service was
applying for a certificatc of salvagc.
8. As u result of proccssing form MV-956, thc Departmcnt, in accordance
with 75 Pa.C.S. 997307 and 7309, issued AlIcn's Auto Sales & Servicc a certificate of
salvage for the 1967 Mcrcury Cougar Coupe, Vehicle Identification Number (VIN)
7F9.1C54213, Title Number 18712581. Notably, the issuance of that certificate of salvage
divested all right, title and interest the owner, Plaintiff Miller, had in that vehicle. 75 Pa.C.S.
97309(d).
9. On or about July 27, 1998, Plaintiff Miller, through his counsel, filed
in the C01,lrt 'of Common Pleas of Allcghcny County, a Motion for Writ of Seizure and a
Complaint seek,ing an Action in Replevin, an Action for Damages, and a Constructive Trust
in relation to the 1967 Mercury Cougar Coupe, Vehicle Identification Number (VIN)
7F91C54213, Title Numbcr 18712581.
10. The Departmcnt of Transportation of the Commonwealth of
Pennsylvaniu is named as a dcfendant in this action.
II. "The Dcpartment of Transportation is an executive agency of the
Commonwealth of Pennsylvania and is thereforc a part ofthc Commonwealth Government.
71 Pa.C,S. 961; 2 Pa.C.S. 9 I 0 l.
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12. Thc Commonwcalth Court ofl'cnnsylvania has jurisdiction ovcr all civil
actions or proccedings aguinst thc Commonwcalth Govcrnmcnt. 42 l'u.C.S. 11761; CRY, Inc.
v. Mill Service, Inc., 536 Pa. 462, --' 640 A.2d 372, 377-378 (1994); Pastore v.
Commonwealth of Pennsylvania, State System of Higher Education, 618 A.2d 1118 (Pa.
Cmwlth. 1992).
13.
Thc Court of Common Picas of Cumberland County does not have
cither original or concurrent jurisdiction over this mutter.
FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
14. The Departinent incorporates thc avennents in paragraphs I through [3
as though they were set forth at length herein.
'15. The affinnative defense of sovcrcign immunity may be raised in
preliminary obje~tions in the nature of a demurrcr where it is apparent that none of the
exceptions to govemment immunity apply. Gallagher v. City of Philadelphia, 597 A.2d 747
(Pa. Cmwlth. 1991).
16. This Court's role in ruling upon preliminary objections in the nature of
a demurrer is to determine whether the facts pled are sufficient to pernlit the action to
continue. Ruby v. Department of Transportation, 632 A.2d 635, 636 (Pu. Cmwlth. 1993);
Curtis v. Cleland, 552 A.2d 316, 318 (Pa. Cmwlth. 1988).
17. Preliminary objections should be sustained wilen it is clear that the law
IN Till; COURT OF COMMON !'LEAS
OF CUMBEIU4ANI> COUNTY, .'ENNS\'LV ANIA
MICHAEL SCOTT MILLER,
Plaintiff,
J)OCKET NO. 1998-..1:;04 CIVIL
v.
RON ALLEN,
ALLEN AUTO SALES & SERVICE, and the
DEPARTMENT OF TRANSPORTATION
OF THE COMMONWEALTH OF
PENNS\'L VANIA,
EQUITY
Defcndants
MOTION FOR ISSUANCE 011 WRIT OF SEIZURE
The Plaintiff, Michacl Scott Millcr, hus tiled un action in replevin ugainst the Defendants
to recover a blackl967 Mercury Cougar with the vehicle identificution number 7F9IC547213. A
true and correct copy of the Compluint is attached hereto und markcd as Exhibit "A".
2
The Defendants Ron Allen and Allen's Auto Sales und Service are in possession of the .
vehiclc and it is located at R.D.!, Pinetown Road, Lewisbcrry, PA 17339.
3
The vehicle is being offered for snlc by the Defendants, Ron Allen and Allen's Auto
Sules and Service.
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IN THE COURT OF COMMON I'LEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
MICHAEL SCOTT MILLER,
Plai/ltiff
: DOCKET NO. 1998-4304 CIVIL
VS.
EQUITY
RON ALLEN,
ALLEN AUTO SALES & SERVICE, and thc
DEPARTMENT OF TRANSPORTATION
OF THE COMMONWEALTH OF
PENNSYLVANIA,
Respolldel/t
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ANSWER TO MOTION FOR ISSUANCE OF WRIT OF SEIZURE:o!
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NOW COMES the Commonwealth of Pennsylvania, Departmcnt ofTransportution,
Bureau of Motor Vchicles (Department), who, by and through its attorney, Barbara A. Darkes,
Esquire, submits the following an~wer to the Motion for Writ of Seizure filed by Michael Scott
Miller (Millcr) in thc above-captioned matter.
l.
,
2.
avermcnt.
3.
averment.
4.
5.
Admitted.
The Dcpartment is without sufficient infonnation to either admit or deny this
The Department is without sufficient infomlation to either admit or deny this
This is a conclusion of Jaw to which no response is necessary.
Denied. By way of further response, the Department asserts that Millcr will
not be successful in .his actions against the Depurtment. As set forth in greater detail in the
Prcliminary Objections filed ill this case on August 10, 1998, this Honorable Court lacks jurisdiction
over this casc in that it is an action agaillst the Commonwealth govcrnment, namely the Department
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ofTransportution, an cxecutive ugcncy of thc Commonwculth of Pcnnsylvunia. Thcrcforc, pursuunt
to 42 Pu.C.S. 9761 (u)(I), this mattcr f.111S within thc original jurisdiction of thc Commonwcalth
Court of Pennsylvaniu. Furthermorc, this action against thc Dcpurtmcnt is barrcd by sovcrcign
immunity as provided for in thc Constitution of this Commonwealth and subscqucnt statutory
provisions enactcd by thc Gencral Assembly. See, Pa. Const. art. 1, S II; I PU.C.S. 92310; 42
NEW MATTER
Pa.C.S.9S8521-8522.
6. Thc Department incorporates the answers to paragraphs I through 5 as though
they were set forth at length herein.
7. The Department is not nor has it ever becn in possession of a 1967 Mercury
Cougar Coupe, VIN 7F9lC54213, Title Number 18712581 nor is the Department in possession of
the title for that vehicle. Rather, the Department merely has the ministerial function of issuing titles
to the owners of vehicles. Therefore, it would be impossible for this vehicle or the title to the
vehicle to be seized from the Department.
8. The Department, pursuant to 75 Pa.C.S. g7305(a), notified Plaintiff Miller by
certified mail, return receipt requested, that the vehicle was declared abandoned.
9. Pursuant to 75 Pa.C.S. 97305(b), that notice described the make, model, and
titlc number of the abandoned vehicle; the location where the vehicle was being held; informed
Plaintiff Miller that hc had 30-days from the notice date to reclaim the vehicle; and, informed
Plaintiff Miller that his failure to reclaim the vehiclc would be deemed consent by the owner to the
destmction, sale, or othcr disposition of the vehiclc.
10. On February 25, 1996, that notice was mailed to Plaintiff Miller at 1460 Holly
Pike, Carlisle, Pennsylvania 17013, his last known address of record and the address which he uses
hc uscs in thc compluint filcd in this cusc.
II. Thc corrcspondcllcc muilcd Fcbnmry25, 1996, to PlaintiffMillcr wus rcturncd
to thc Dcpurtmcnt us uncluimcd mail. Notutions on thc corrcspondcncc indicatc that Plaintiff Millcr
IVUS scrvcd with noticc of this ccrtificd mail by thc U.S. Postal Scrvicc on Fcbruury 26, 1998 und
.,
March 4, 1998. Thc notations ulso I'cflcctthat thc corrcspolldencc wus rcturncd to thc Dcpartment
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on Murch 13, 1998, indicating the corrcspondcncc IVUS unclaimcd by Plaintiff Millcr.
Whcrcforc, bascd upon the facts thut thc Dcpurtmcnt pcrformed all of its ministcrial
acts us rcquircd by luw, thc Commonwealth of Pcnnsylvaniu, Departmcnt of Transportation prays
that this Court will cnter an order denying the writ of scizurc as it relates to the Depurtment of
Transportation.
> .
/ Barbara A. Darkcs
Acting Assistant Counsel In-Charge
Attorney LD. No. 77419
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
Motor Vehicle Section
1101 South Front Strcet - 3rd Floor
Harrisburg, Pennsylvania 17104-2516
(717) 787-2830
.'.
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4
The Plairllil'l'is Michael Scall Miller, an adull individual residing at 1460 I-lolly Pike,
Carlisle, PA 17013.
5
Thc Dcfcndant, Ron Allcn, upon inl'ornmtion and bclief: is an owncr of Allen's Auto
Salcs und Scrvicc.
6
Thc Dcfendunt, Allcn's Auto Salcs und Scrvicc, (Allen's) hus its principal placc of
business at R.D.I, 500 Pinetown Roud, Lcwisberry, PA 17339.
7
Thc Dcfendant, Department ofTmnsportation, (PcnnDot) is an agency of the
Commonwealth ofPennsylvuniu with its office ofChicfCounsellocated at 91h Floor, Forum
Place, 555 Walnut Street, Harrisburg, PA 17101-1900.
8
Allen's is a licensed salvor for the Commonwealth of Pennsylvania Department of
Transportation.
9
The PluintitTwus, and he contends remains, the legal owner of the vehicle which,
unbeknownst to the Plaintiff: wus abandoned in Middlesex Township, Cumberland County,
Pennsylvania on October 17, 1997. A copy ofthc Plaintiffs titlc to the vehicle is attached hereto
and murked as Exhibit "A"
10
Thc Middlesex Township Police caused the vehicle to be towed to an impound lot owncd
by Millcr und Sam's Towing, 6489 Carlisle Pike, Curlislc, PA
I I
Pursuant to a POUCH UHQUh'ST FOIl Uh'kIOVA/, OF AHAN/)ONED VH//CLE,
PennDot form /I MV-952, on or about Februury 12, 1998, thc vehiclc wus moved to Allcn's
propcrty ut500 Pinctown Roud, Lcwisbcrry, PA. A eopy of this document is attuchcd hcrcto and
marked us Exhibit "8".
12
On or about Murch 26, 1998, Allen's complctcd und submitted to PennDot a SALVOR'S
APPLICATION/INVOICE FOU SE7'7'/,EIv/EN7; by which Allcn's certified thut the owner of the
vehicle was known, certified that the vehicle was valueless except for salvuge, and requested title
to the vehicle. A copy of this document is attuched hcreto and marked as Exhibit "C".
13
At some point after March 26, 1998, PennDot cUllsed the vehicle to be titled in the name
of the Defendant Allen's Auto Sales and Service; this informution is reflected in the VEHICLE
RECORD ABSTRACT provided to the Plaintiff by PennDot und is attached hereto and murked as
Exhibit "D".
14
Prior to PcnnDot conveying title to the vehicle to Allen's, the Plaintiff should have been.
notificd by certified mail, pursuant to 75 Pa.C.SA * 7305, giving the Plaintiff the opportunity to
recluim the vehicle.
IS
The Pluintiffreceivcd no Ilolilicalioll fhlll1 anyone rclalive 10 thc towing, impoundmcnt,
or tmnsfcr of titlc to thc vchicle.
16
Thc PlaintiO: by und through his counscl, rcquested froml'ennDol uny and all
information rclutive to thc vehiclc und the transfer oftitlc which is al issuc before thc Court; thc
PlaintifTspccifically rcqucsted copies of any und allnotificntioll, which is manduted by luw und
should have heen muiled to the Plaintiff In responsc to this rcqucst, PennDot providcd the
Plaintiff with the ubovc noted und attachcd documents, but PcnllDot did not providc the Plainti ff
with copies of any such notification.
17
The vehicle is considcred u "classic" und "collector's" automobile in which the PlaintifT
has invcsted in exccss of$ 8,000.
18
The Plaintiffbclieves that the vehicle is presently being offcred for sale by Allen's for the
amount of $1,200, notwithstunding the fact that Allen's certified that the vehicle was vulueless
except for salvage. I (See Exhibit "C", attached.)
19
The Defendants, Ron Allen und Allcn Auto Sules and Service, are in possession of the
Plaintiffs vehiclc und ure without valid Icgal title 10 the vehicle.
2.1
By ullowing thc vchiclc to rcmain outside und without proper care, the valuc oflhc
vchicle hus bccn diminished since it has been in the custody and control of the Delclldunts.
WHEREFORE, thc Plaintiffpmys thutthis honorublc Court ordcr the Dcfcndants to
rcimbursc the Pluintiff for uny nnd all attorney's fecs and costs utlenduntto this cuusc ofuction,
ordcr the Defendunts to reimburse thc Plaintiff for dmnages hc has sustuined due to thc
deprivation of his use of the vchiclc, and order uny other rclicfthat this Court muy decm
equitable undjust.
COUNT 11I- CONSTRUCTIVE TRUST
25
Puragraphs I through 24 arc incorpomted hercin by reference as though textually set forth
at length.
26
The Defendants have caused possession und title to the vehicle to be vested in Allen's
illegally in thut u procedure prescribcd by statute to avoid depriving u property owner of rightful
ownership of his property was ignored.
27
Equity rcquires that Allen's not bc allowed to profit from thc Defendants' failure to
follow the procedurc imposcd by statutc.
I verify that the statements made in the foregoing document are
true and correct. I understand that false statements herein are
made subject to the penalties of 18 PA. C.S. Section 4904 relating
to unsworn falsification to authorities.
DATE:
7-J7'-9~
~ J,f/J1d/h
ichael Scott Miller
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OWNER
Title
Tag
VIN
Make
Renew WID
Est, WID
Prey Tag
Encumb
Stops
2l-IMINFO
.4
Info Sales Vehicle' Inquiry Detail
T028A16
7/02/98
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION
VEHICLE RECORD ABSTRACT
JULY 2, 1998
ALLENS AUTO SALES & LESSEE :
SERVICE
R D 1
500 PINETOWN ROAD
LEWISBERRY PA 17339
18712581 Title Date , 01/26/67
,
Reg Expire ,
,
7F9lC547213 Body , CP
,
MERCURY Model Odometer 128345
00000 0000 000000 000 Odom Qual 2
69112 0000 000006 000 Duplicates 1
AYH9694 Year 1967
NO Stolen Date
IS-RETURN
16-NOTEPAD 18-LIENINFO 19-WIDHIST
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IN THE COllin OF COMMON PLEAS
OF CliMBEIU.ANI> COliNT\', I'ENNSYLV ANIA
MICHAEL SCOTT MILLEn,
Plaintiff,
DOCKET NO. 1998 - 4304 CIVIL
v.
It9N ALLEN,
ALLEN AUTO SALES & SEnVICE, and thc
DEPARTMENT OF TRANSPORTATION
OF THE COMMONWEALTH OF
PENNSYLV ANIA,
Dcfcndants
EQl1ITY
AFFIDA VIT OF SERVICE
I, Christophcr Nuy, bcing duly sworn according (0 law, dcposc und say that at 4:32 p.m.
on July 27, 1998 1 pcrsonully handed to an individuul who identificd himsclf us Ron Allcn, Jr.,
the acting supervisor of Allcn's Auto Sulcs and Service the following documents in the above
captioned action:
· a certitied copy ofthc COMPlAINT with NOnCE TO PLEAD;
· a ccrtificd copy of this Court's ORDER datcd July 27, 1998;
· a true and correct copy ofthc Plaintiffs ivfOnON HJR WRIT OF SEIZURE; and
· u NOnCE OF HEAIUNG FOR SEIZURE OF PROPERTY.
~~~
Christophcr Na '\
COMMONWEALTH OF PENNSYL VANIA
COUNTY OF CUMBERLAND
SS
On this, thc 27 duy of July, 1998, bcfore mc, a notary public, the undersigned officer, pcrsonully
uppeured Christopher Nuy, known to me or satisfactorily proven to be the person whose name is
subscribed to the within instrument and acknowlcdgcd that he cxecutcd the sumc for the purpose
therein contained.
IN WITNESS WHEREOF, I hcreullto set my hand and notarial seal
~-
SEAL
Notarial Seal
BMdget Ann Corcoran, Notary Public
Camsle Bora. CumbeMand County
My Commission Expires June 10.2002
-,
~
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JOliN H. Ill<OU/OS
HU/lElrr X. CII.UOY
BROUJOS & GILROY, P.c.
AITOJ<NEYS AT LAW
4 NOJ<TII JIANOVEll STllEET
CAJ<I.ISI.E, PENNSYLVANIA 170 J:l
717.243.4574
NON-Tol.!. ''nIt IIARRISlIlJl{G AUl1A
717.766.1690
FA." 243-8227
Septembcr 10. 1998
Thc Honomble Edward E. Guido
Cumberlund County Court ofCol11l11on Pleas
Cumbcrlund County Courthousc
I Courthousc Squarc
Carlisle, I'A 17013
RE: Millcr v. Allcn's Auto Salcs. cta!
1998-4303 CIVIL
DcarJudgc Guido:
I havc. toduy, li/ed a Pruccipc in the ubove rcferenced case dirccting thc Prothonotary to
withdraw thc PlaintiWs Motion for IsslIancc ofu Writ ofSeizurc. Enclosed pleasc find an Order
tor your signaturc vucating thc Ordcl' datcd August 19, 1998 und cunccling the hearing schcduled
lor tomorrow. I callcd Attorncys I'ortko and Darkcs and Icll messages for them informing thcm
of this uction.
Sinccrely yours,
Hubert X. Gilroy
cc: Michacl S. Millcr
Stevcn Portko, Esq.
by facsimilc to (717) 432-9220
Barbara A. Darkcs, Esq.
by facsimilc to (717) 705-1 122
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IN THE COURT OF COMMON I'LEAS
OF CUMBERLANI> COUNTY, I'ENNSYLVANIA
.
ORI>ER
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MICHAEL SCOTT MILLER,
Plaintiff I>OCKET NO, 1998-4304 CIVIL
v.
RON ALLEN,
ALLEN AUTO SALES & SlmVICE, and the
I>EPARTMENT OF TRANSPORTATION
OF THE COMMONWEALTH OF EQUITY
I'ENNSYLV ANIA,
Defendants
ANI> NOW, this May of Deccmbcr, 1998, upon considcrution of the uuachcd
Pctition, a Rulc is hcrcby issucd upon the Plaintiff: Michael Scott Miller, dirccting that he show
cause why the Pctitioncrs, Hubcrt X. Gilroy, Esq. ulld thc firm of Broujos & Gilroy, P.C., should
not be grantcd lcavc to withdruw as his legul counscl in the abovc captioncd case. This Rulc is
rcturnablc within tcn (10) days from servicc of this Ordcr upon the Pluintiff.
Edward E. Guido,
J.
cc:
Steven Portko, Esq.
Barbara A. Darkes, Esq. > ' . r;~t / :1 _ r - 9 r
Hubcrt X. Gilroy, Esq. Vf.<.w, 1,,-..
Michacl Scott Miller, Plaintiff d
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WIlEI~EFORE, I'etililln~r:; requesttllwilhdraw as CllUllsellllr Ihe Iklcndanl in thc above
captioncd case.
Respectfully submitted,
1:1(31 fg
Date
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