Toyota Motor Credit Corporation v. Borough of Wyoming, PA

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

TOYOTA MOTOR CREDIT

CORPORATION,

Plaintiff, CIVIL ACTION NO. 3:23-cv-00377

v. (SAPORITO. J.)

BOROUGH OF WYOMING, PA,

et al.,

Defendants.

MEMORANDUM

This is a federal civil rights action concerning the allegedly

unconstitutional seizure of a 2017 Toyota RAV4 automobile, in which the

plaintiff, Toyota Motor Credit Corporation (“Toyota”), held a security

interest or lien. Toyota claims that the municipal defendant, Borough of

Wyoming (“Wyoming”), caused the vehicle to be towed, stored, and

eventually sold by a private towing company, Bovani’s Towing & Service

Inc. (“Bovani’s Towing”),! without a warrant and without providing

Toyota with just compensation or notice and an opportunity to be heard,

in violation of Toyota’s Fourth Amendment right to be free from

1 Bovani’s Towing was originally a co-defendant as well, but all

claims against it were voluntarily dismissed by stipulation. Doc. 78.

unreasonable seizures, Fifth Amendment right to be free from the taking

of property without just compensation, and Fourteenth Amendment right

to procedural due process, all made actionable by 42 U.S.C. § 1988.

The parties have filed cross-motions for summary judgment. Doc.

57; Doc. 64. The motions are fully briefed and ripe for decision. Doc. 61:

Doc. 62; Doc. 65; Doc. 74: Doc. 75: Doc. 79; see also Doc. 60; Doc. 63; Doc.

66; Doc. 67; Doc. 76.

I. BACKGROUND

Wyoming police routinely take custody of vehicles in the course of

their law enforcement duties. Wyoming uses a private towing company

to tow, store, and eventually dispose of those vehicles if unclaimed.

Wyoming does not directly pay the towing company for this service.

Instead, the towing company accepts possession of the seized vehicle and

seeks to recover towing and storage fees from the owner as a condition

for the vehicle’s release. If no one pays the fees and reclaims a given

vehicle, the towing company seeks to sell that vehicle at public auction to

recoup its expenses.

The vehicle here was owned by non-party Geralt T. Clisham, but

Toyota held a security interest in the vehicle, entitling it to take

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immediate possession of the vehicle in the event of default on its credit

agreement with Clisham. In July 2021, Clisham defaulted on his

agreement with Toyota when he ceased making monthly payments.

On August 28, 2021, Clisham was driving the vehicle when he was

subjected to a traffic stop by a Wyoming Borough police officer, who had

observed Clisham driving erratically. When the police officer ran

Clisham’s driver’s license and discovered that his driving privilege had

been suspended, he informed Clisham that he could not drive the vehicle.

Clisham was unable to provide a phone number for someone to retrieve

him or his vehicle, which was parked on the side of the road, partially

blocking one lane of Wyoming Avenue. The officer contacted the county 9-

1-1 center, which dispatched Bovani’s Towing to remove the vehicle to a

place of safety. After the vehicle was towed away, the police officer drove

Clisham to his daughter’s home, informing her that Bovani’s Towing had

towed the vehicle, where they could retrieve the vehicle, and that the

vehicle was immediately releasable so long as the person retrieving it had

a valid driver’s license. The police officer issued Clisham citations for

careless driving and driving with a suspended license.

On October 2, 2021, Toyota assigned the vehicle to a third-party

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repossession company to take possession of the vehicle. On December 14,

2021, Toyota learned that the vehicle was being stored at Bovani’s Towing

in West Pittston Borough. On December 15, 2021, Toyota demanded that

Bovanis Towing release the vehicle to Toyota, but Bovani’s Towing

refused to do so unless Toyota paid more than $7,500 in towing and

storage fees. Toyota did not pay the fees and Bovani’s Towing did not

release the vehicle.

On February 1, 2022, Bovani’s Towing submitted an abandoned

vehicle report to the West Pittston police department, which processed

the vehicle as abandoned and forwarded its own abandoned vehicle

report on to PennDOT that same day. On March 13, 2022, PennDOT

issued a notice to Toyota notifying it that the vehicle had been declared

abandoned, advising Toyota of certain payment obligations should it

choose to retrieve the vehicle from Bovani’s Towing, and that failure to

reclaim the vehicle within 30 days would be deemed consent to the

destruction, sale, or other disposition of the vehicle.

With PennDOT’s approval, Bovani’s Towing exposed the vehicle to

a public auction on May 6, 2022, but Bovani’s Towing was unable to

obtain a buyer for the vehicle. On May 18, 2022, PennDOT issued a

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certificate of salvage of a vehicle to Bovani’s Towing. On July 26, 2022,

Bovani's Towing sold the vehicle to a non-party buyer for $8,500.

In the meantime, on July 11, 2022, Toyota had initiated a state-

court action for replevin with respect to the vehicle. On December 22,

2022, Toyota voluntarily dismissed the replevin action.

On March 2, 2023, Toyota commenced this federal civil action by

filing its complaint in this matter. On July 5, 2023, Toyota “charged off,”

or closed, Clisham’s account and issued a demand for full payment for all

amounts due to Toyota under the installment sale contract. But Toyota

has never initiated legal proceedings against Clisham in an attempt to

collect full payment due to Toyota under the installment sale contract.

II. LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary

judgment should be granted only if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the outcome

of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” only if the evidence “is such that a

reasonable jury could return a verdict for the non-moving party.”

oa

Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all

inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the

movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell

Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

The party seeking summary judgment “bears the _ initial

responsibility of informing the district court of the basis for its motion,”

and demonstrating the absence of a genuine dispute of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must set forth specific facts, supported

by the record, demonstrating that “the evidence presents a sufficient

disagreement to require submission to the jury.” Anderson, 477 U.S. at

251-52.

In evaluating a motion for summary judgment, the Court must first

determine if the moving party has made a prima facie showing that it is

entitled to summary judgment. See Fed. R. Civ. P. 56(a): Celotex, 477 U.S.

at 331. Only once that prima facie showing has been made does the

burden shift to the nonmoving party to demonstrate the existence of a

genuine dispute of material fact. See Fed. R. Civ. P. 56(a): Celotex, 477

sag

USS. at 331.

Both parties may cite to “particular parts of materials in the record,

including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for the

purposes of the motion only), admissions, interrogatory answers or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used to

support or oppose a motion must be made on personal knowledge, set out

facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.” Fed. R. Civ. P.

56(c)(4). “Although evidence may be considered in a form which is

inadmissible at trial, the content of the evidence must be capable of

admission at trial.” Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 599

(M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem’ Hosp., 192 F.3d

378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary

judgment, to consider evidence that is not admissible at trial).

“The rule is no different where there are cross-motions for summary

judgment.” Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.

2008).

Cross-motions are no more than a claim by each side

that it alone is entitled to summary judgment, and the

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making of such inherently contradictory claims does

not constitute an agreement that if one is rejected the

other is necessarily justified or that the losing party

Waives judicial consideration and determination

whether genuine issues of material fact exist.

Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968). Thus,

“when presented with cross motions for summary judgment, the Court

must consider the motions separately, and view the evidence presented

for each motion in the light most favorable to the nonmoving party.”

Borrell v. Bloomsburg Univ., 63 F. Supp. 3d. 418, 433 (M.D. Pa. 2014)

(citation omitted). “[E]ach movant must demonstrate that no genuine

issue of material fact exists: if both parties fail to carry their respective

burdens, the court must deny [both] motions. Quarles v. Palakovich, 736

F. Supp. 2d 941, 946 (M.D. Pa. 2010) (citing Facenda v. N.FL. Films, Inc.,

542 F.3d 1007, 1023 (3d Cir. 2008)). Nevertheless, “lilf upon review of

cross motions for summary judgment we find no genuine dispute over

material facts, then we will order judgment to be entered in favor of the

party deserving judgment in light of the law and undisputed facts.” Jberia

Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998).

II]. MATERIAL Facts

The material facts of this case are undisputed. The parties dispute

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only the legal consequences of those facts.

Non-party Gerald T. Clisham is the prior owner of a used 2017

Toyota RAV4 with vehicle identification number 2T3BFREV2HW596414

(the “Vehicle”). On April 19, 2021, Clisham purchased the Vehicle from a

non-party car dealership for a purchase price of $21,827. Clisham

financed the purchase of the Vehicle through an installment sale contract

with a term of sixty months. Immediately thereafter, the car dealership

assigned its interest in the installment sale contract to Toyota.

On May 11, 2021, title and ownership of the Vehicle was transferred

to Clisham, with the certificate of title identifying Toyota as a lienholder.

On June 10, 2021, Clisham made his first, and last, monthly installment

payment under the installment sale contract. He did not make his July

10, 2021, monthly installment payment or any subsequent payments, in

breach of the terms of the installment sale contract. On August 20, 2021,

Toyota sent Clisham a notice to cure demanding payment and notifying

him that failure to pay could result in repossession of the Vehicle.

On August 28, 2021, at 1:05 p.m., the Luzerne County 9-1-1 Center

received a call reporting a white RAV4 driving erratically. Former

Wyoming Chief of Police Christopher Mercavitch responded to the 9-1-1

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dispatch concerning the erratic driver.2 Chief Mercavitch observed the

Vehicle “crossing the lines and weaving in and out of lanes.”

At approximately 1:28 p.m., Chief Mercavitch stopped the Vehicle

on Wyoming Avenue in the area of Seventh Street in the Borough of

Wyoming. The driver, Clisham, parked the Vehicle “partly in the road

blocking one lane of Wyoming Avenue.”

When Chief Mercavitch approached the Vehicle, he observed that

the driver, Clisham, appeared to have a head injury. When Chief

Mercavitch asked him if he was okay, Clisham stated that he had just

gotten out of the hospital, where he had surgery on his brain. When Chief

Mercavitch ran Clisham’s driver’s license, he learned that Clisham was

driving while his operating privilege was suspended. Chief Mercavitch

informed Clisham that, because his operating privilege was suspended,

he could not drive the Vehicle.

Clisham could not provide Chief Mercavitch with a phone number

to have someone retrieve him or his Vehicle. Because the Vehicle was

We neferto Chief Mercavitch and the police department itself as

“former” because, effective December 31, 2022, the Wyoming Borough

municipal police department was disbanded and a regional police force

appointed to provide police services to the borough thereafter.

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partially obstructing one lane of Wyoming Avenue, Chief Mercavitch

informed Clisham that the Vehicle would be towed.? Chief Mercavitch

contacted the Luzerne County 9-1-1 Center, which dispatched Bovani’s

Towing in West Pittston to remove the Vehicle.4

Chief Mercavitch waited for Bovani’s Towing to remove the Vehicle.

Wyoming did not place any kind of hold on the Vehicle, and Chief

Mercavitch instructed Bovani’s Towing that the Vehicle could be

immediately released to a licensed driver.

Chief Mercavitch then gave Clisham a ride, at his request, to his

daughter’s house. Chief Mercavitch told Clisham and his daughter that

Bovani's Towing towed the vehicle, where they could retrieve the Vehicle,

and that the Vehicle was immediately releasable to them so long as the

person driving had a valid driver’s license. Clisham was cited by Chief

3 Toyota has conceded that it was reasonable for Chief Mercavitch

to have the Vehicle removed from Wyoming Avenue. Toyota, however,

disputes whether circumstances provided Wyoming with a valid

exception to the warrant requirement or a justification for turning the

Vehicle over to the custody of Bovani’s Towing.

4 Wyoming had no written contract with Bovani’s Towing, and it had

no ordinances or resolutions appointing Bovani’s Towing to provide

towing services to Wyoming or its police department. It is the common

practice of the Luzerne County 9-1-1 Center to dispatch the closest and

first available tow company to provide tow services when requested.

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Mercavitch for careless driving and driving on a suspended license.

Although Bovani’s Towing subsequently conditioned its release of

the Vehicle on payment of towing and storage fees, Wyoming itself did

not assess any fees or costs related to the Vehicle. It did not commence

any civil or criminal forfeiture proceedings as to the Vehicle. Wyoming

had no further contact with Bovani’s Towing concerning the Vehicle after

the August 28, 2021, tow. Unbeknownst to Wyoming, and despite being

informed that the Vehicle was immediately releasable from Bovani’s

Towing, Clisham did not retrieve the Vehicle from Bovani’s Towing.

On August 28, 2021, Toyota was not the owner of the Vehicle, did

not have possession of the Vehicle, and did not have control over the

Vehicle, but Toyota did maintain a security interest in the Vehicle in the

form of a hen.» Wyoming made no effort to determine whether there was

5 Toyota also notes in its response to Wyoming’s statement of

material facts that, after Clisham’s default, so long as the Vehicle was

located in public (e.g., not behind Bovani’s Towing’s locked gate, or inside

a residential garage), it had access and a right to repossess the Vehicle.

See generally 12 Pa. Cons. Stat. Ann. § 6251(b) (providing that, after

default, a motor vehicle installment sale contract holder may retake

possession of the motor vehicle, but unless it can be retaken without

breach of the peace, it must be retaken by legal process); 13 Pa. Cons.

Stat. Ann. § 9609(b)(2) (providing that, after default, a secured party may

take possession of collateral without judicial process if it proceeds

without breach of the peace).

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a lienholder for the Vehicle, and it did not alert Toyota that the Vehicle

had been towed and stored by Bovani’s Towing.

Wyoming does not have any legislation, either in the form of an

ordinance or resolution, nor does it maintain any written policy

governing the towing of vehicles by members of its former police

department. Wyoming has never been confronted with issues involving a

henholder’s interest in a towed vehicle before this incident. Under the

factual circumstances presented here, however, Wyoming has conceded

that it would have been Wyoming's regular custom, practice, and duty to

remove a vehicle from the roadway as it poses a danger and safety risk

to the public, and to inform the tow service that the vehicle could be

released to a licensed driver.

On October 2, 2021, Toyota issued an assignment for repossession

to its forwarding agency, Millenium Capital Recovery, to repossess the

Vehicle. On December 7, 2021, Toyota sent a notice of default to Clisham.

On December 14, 2021, Toyota was informed by Millenium Capital

Recovery that the Vehicle was being stored at Bovani’s Towing in West

Pittston, Pennsylvania, and that the amount owed for towing and storage

fees at that point was $7,535. On December 15, 2021, Toyota contacted

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Bovanis Towing and demanded release of the Vehicle, and it was

informed by Bovani’s Towing that the Vehicle would be released upon

payment of the $7,535 in accrued towing and storage fees. Toyota was

further informed that a police release from Wyoming was not required for

it to retrieve the Vehicle from Bovani's Towing. Toyota made efforts to try

to negotiate the towing and storage fees, but when Bovani’s Towing

refused to negotiate its fees, Toyota referred the matter to its attorneys.®

On January 7, 2022, Bovani’s Towing sent Toyota an email message,

which stated:

Kindly advise as to whether you are picking up this

vehicle. We have had no communication with you since

we sent you the VIN number on 12/17. If we do not hear

from you, we will assume you are not coming for the

vehicle and will file for title with the State.

Toyota’s impound and seizures workgroup did not respond to this

January 7, 2022, email message from Bovani’s Towing.

On February 1, 2022, Bovanis Towing initiated abandonment

6 Toyota’s corporate designee testified that, rather than the full 109-

day storage fee, Toyota would have been willing to pay Bovani’s Towing

for 30 days of storage, plus towing and administrative fees, for a total of

$2,400. But it is unclear whether Toyota actually made such an offer to

Bovanis Towing, or if it had been informed that Bovani’s Towing had

refused to negotiate its fees at all.

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proceedings by submitting a completed Form MV-952PP Abandoned

Vehicle on Private Property Report by Property Owner to the former West

Pittston police department.’ The form indicated that the Vehicle had been

left on the salvor’s (Bovani’s Towing’s) property for 20 days. The West

Pittston police department processed the Vehicle as abandoned and

submitted a completed Form MV-952, together with Bovani’s Towing’s

Form MV-052PP, to PennDOT that same day.

On March 13, 2022, PennDOT issued a notice to Toyota notifying it

that the Vehicle had been declared abandoned by the West Pittston police

department. On March 21, 2022, Toyota received the March 13, 2022,

notice from PennDOT.

On April 25, 2022, Toyota sent Bovani’s Towing a letter demanding

the immediate release of the Vehicle, advising Bovani’s Towing that

“Toyota is not obligated to pay [Bovani’s Towing] at all to regain

possession of the Vehicle,” and that no further legal action would be taken

if Bovani’s Towing complied.

PennDOT authorized a public auction of the Vehicle, but at the

7 West Pittston’s municipal police department was also disbanded

in favor of the same regional police department at the end of 2022.

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advertised auction on May 6, 2022, Bovani’s Towing was unable to obtain

a buyer for the Vehicle. On May 18, 2022, PennDOT issued a certificate

of salvage for the Vehicle to Bovani’s Towing. On July 26, 2022, the

Vehicle was sold by Bovani’s Towing to a non-party purchaser for $8,500.8

In the meantime, on July 11, 2022, Toyota initiated a civil action

against Bovani’s Towing in the Court of Common Pleas of Fayette County,

styled Zoyota Motor Credit Corp. v. Bovani’s Towing Service, Inc., No.

2022-01241 (Fayette Cnty. (Pa.) Ct. Com. PI. filed July 11, 2022), seeking

possession of the Vehicle and monetary damages on state-law claims of

replevin, conversion, and tortious interference.? On December 22, 2022,

Toyota voluntarily discontinued the state court litigation without

prejudice.

On March 2, 2023, Toyota commenced this federal civil action. In

addition to reasserting the same state-law claims for replevin,

conversion, and tortious interference against Bovani’s Towing, Toyota

asserted federal civil rights claims against Wyoming and Bovani’s

8 Based on the parties’ exhibits, the purchaser subsequently applied

for and received a reconstruction title.

9 It is unclear why the lawsuit was filed in Fayette County, as the

defendant towing company is located hundreds of miles away in Luzerne

County, and the events giving rise to suit occurred there as well.

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Towing.

On July 5, 2023, Toyota “charged off.” or closed, Clisham’s account

and issued a demand to him, pursuant to the terms of the installment

sale contract, for full payment of all amounts due to Toyota under the

installment sale contract. To date, however, Toyota has not initiated any

legal proceedings against Clisham to attempt to collect full payment from

him under the terms of the installment sale contract.

IV. DISCUSSION

Toyota asserts three separate causes of action against Wyoming

arising out of the towing, storage, and eventual sale of the Vehicle by

Bovanis Towing. First, although Toyota concedes that it was reasonable

for Chief Mercavitch to have the Vehicle removed from Wyoming Avenue,

where it was partially obstructing the roadway, Toyota contends that

permitting Bovani’s Towing to take possession of the Vehicle, towing it,

storing it, and eventually selling it, constituted an unreasonable seizure

of property without probable cause or a warrant, in violation of Toyota’s

Fourth Amendment rights. Second, Toyota contends that doing so

without providing Toyota with just compensation constituted an unlawful

taking of private property for public use, in violation of Toyota’s Fifth

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Amendment rights. Finally, Toyota contends that doing so without

providing Toyota with notice and an opportunity to be heard deprived

Toyota of a protected property interest without due process of law, in

violation of Toyota’s Fourteenth Amendment due process rights.

Wyoming seeks summary judgment on the merits of each of Toyota’s

constitutional tort claims. In the alternative, it seeks summary judgment

on the ground that Toyota has failed to establish municipal lability

under § 1983 and Monell v. Department of Social Services, 436 U.S. 658

(1978).

A. Plaintiff’s Demand for Declaratory Relief

In addition to its demand for damages, the plaintiff seeks

declaratory relief against Wyoming under 28 U.S.C. § 2201. But effective

December 31, 2022, Wyoming disbanded its municipal police department

and appointed a regional police department established under an

intermunicipal agreement to provide police services to Wyoming. See Def.

Ex. Q, Doc. 66-17. See generally Trethaway v. Pizano, No. 3:28-CV-1528,

2024 WL 1499903, at *5-7 (M.D. Pa. Apr. 5, 2024) (finding that the

Wyoming Area Regional Police Commission, a municipal entity created

to oversee the Wyoming Area Regional Police Department, was a

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separate legal entity from the Borough of Wyoming). Accordingly, the

plaintiff’s request for declaratory relief will be dismissed as moot. See

McMillan v. D.C. Bd. of Elections, 75 F. Supp. 3d 348, 353 (D.D.C. 2014)

(dismissing claim for declaratory relief concerning disbanded slate of

electors as moot); cf Pfeiffer ex rel. Pfeiffer v. Marion Ctr. Area Sch. Dist.,

917 F.2d 779, 786 (3d Cir. 1990) (finding claim for injunctive relief moot

where local organization to be enjoined had been disbanded), abrogated

on other grounds by Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246

(2009).

B. Fourth Amendment Unreasonable Seizure Claim

“In order to establish a claim under the Fourth Amendment,

plaintiff must show that the actions of the defendant: (1) constituted a

‘search’ or ‘seizure; and (2) were unreasonable in light of the

circumstances.” Hyman v. Capital One Auto Fin., 306 F. Supp. 3d 756,

770 (W.D. Pa. 2018). “The Fourth Amendment generally requires that

police obtain a warrant based on probable cause to justify a seizure... □□

United States v. Crandall, 554 F.3d 79, 83 (3d Cir. 2009). One exception

to the warrant requirement is the community caretaking exception,

which permits police officers to remove and impound vehicles “that

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impede traffic or threaten public safety and convenience.” United States

v. Smith, 522 F.3d 305, 313 (3d Cir. 2008).

Toyota concedes that removal of the Vehicle from Wyoming Avenue,

where it was partially obstructing the roadway, was reasonable. But it

argues that permitting Bovani’s Towing to take possession of the Vehicle,

storing it, conditioning its release on payment of a substantial balance of

accrued storage fees, and eventually selling it to satisfy a possessory lien,

constituted an unreasonable seizure of property, in violation of Toyota’s

Fourth Amendment rights. But we find the seizure at issue here falls

squarely within the community caretaking exception to the Fourth

Amendment’s warrant requirement.

[Toyota’s] argument that the impounding became

unconstitutional when [Wyoming] allegedly gave

[Bovani’s Towing] a “possessory lien” in the car and

attached “conditions” on the car’s release is an

unpersuasive framing of what really happened here.

Under the community caretaker exception, the police

officer[] conducted a traffic stop and directed [Bovani’s

Towing] to remove la vehicle impeding traffic whose

owner was physically unable to provide for the removal

of the vehicle] from the road pursuant to [his] duties to

protect public safety under [Pennsylvania] law. Such a

practice does not violate the Fourth Amendment.

Honda Lease Tr. v. Butler Twp., No. 22-cv-4862, 2024 WL 3219272, at *8

(D.N.J. June 28, 2024); see also 75 Pa. Cons. Stat. Ann. § 3352(c)(2) (“Any

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police officer may remove or cause to be removed to the place of business

of the operator of a wrecker or to a nearby garage or other place of safety

any vehicle found upon a highway [for which] . . . [t]he person or persons

in charge of the vehicle are physically unable to provide for the custody

or removal of the vehicle.”); United States v. Smith, No. CRIM.A.05-0257,

2005 WL 2746657, at *3—4 (E.D. Pa. Oct. 24, 2005) (§ 3352(c)(2) and

community caretaking exception permitted impoundment where both

occupants of a vehicle, neither of whom was the owner, were arrested and

unable to remove the vehicle, and its owner was unknown to police), aff'd,

522 F.3d 305 (3d Cir. 2008); United States v. 1988 BMW 750IL, 716 F.

Supp. 171, 173-74 (E.D. Pa. 1989) (§ 3352(c)(2) and community

caretaking exception permitted impoundment of vehicle following

routine traffic stop where neither occupant of the vehicle was licensed to

drive).

Moreover, under the circumstances presented in this case, towing

and impoundment of the Vehicle does not constitute a “seizure” in the

context of the rights of a nonpossessory lienholder, such as Toyota. “A

‘seizure’ of property... occurs when ‘there is some meaningful

interference with an individual’s possessory interests in that property.”

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Soldal v. Cook Cnty., 506 U.S. 56, 61 (1992) (emphasis added). The towing

and impoundment of the Vehicle may have interfered with the possessory

interests of Clisham, who owned the vehicle and was in possession of it

until it was towed away from Wyoming Avenue, but it had no impact on

Toyota’s nonpossessory security interest. Clisham’s default may have

conferred on Toyota the self-help right of repossession—that is, a right to

take possession of the Vehicle under certain circumstances. See, e.g., 12

Pa. Cons. Stat. Ann. § 6251(b) (providing that, after default, a motor

vehicle installment sale contract holder may retake possession of the

motor vehicle, but unless it can be retaken without breach of the peace,

it must be retaken by legal process); 13 Pa. Cons. Stat. Ann. § 9609(b)(2)

(providing that, after default, a secured party may take possession of

collateral without judicial process if it proceeds without breach of the

peace); see also, e.g., Laurel Coal Co. v. Walter E. Heller & Co., 539 F.

Supp. 1006, 1007-08 (W.D. Pa. 1982) (“[T]he actual breaking of a lock or

fastener securing property, even commercial property, constitutes a

‘breach of the peace’ within the meaning of the Pennsylvania statute”).

But a nonpossessory security interest does not become a possessory

security interest until the secured party takes possession after a default.

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See U.C.C. § 9-601 cmt. 4 (2022) (stating that nonpossessory security

interests are not indistinguishable from possessory security interests

until after default and the taking of possession). Toyota simply never took

possession of the Vehicle at any point.

Accordingly, summary judgment will be granted in favor of

Wyoming and against Toyota with respect to the plaintiff's Fourth

Amendment unreasonable seizure claim.

C. Fifth Amendment Takings Claim

The Fifth Amendment prohibits a governmental entity from taking

“private property... for public use, without just compensation.” U.S.

Const. amend V. Toyota claims that the towing, storage, and eventual sale

of the Vehicle constitutes such a taking of private property for a public

use, without just compensation.

But there is a broad consensus among the courts that “the towing

and subsequent storage of vehicles does not constitute a public use.” Brite

Fin. Servs., LLC v. Bobby's Towing Serv., LLC, 461 F. Supp. 3d 549, 558

(E.D. Mich. 2020) (collecting cases); see also Bennis v. Michigan, 516 U.S.

442, 452 (1996) (“The government may not be required to compensate an

owner for property which it has already lawfully acquired under the

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exercise of governmental authority other than the power of eminent

domain.”); Tate v. Dist. of Columbia, 627 F.3d 904, 909 (D.C. Cir. 2010)

(“Nor did the impoundment and subsequent sale of Tate’s booted vehicle

constitute a taking for public use for which she was entitled to

compensation under the Fifth Amendment’s Takings Clause.”). “Property

seized and retained pursuant to the police power is not taken for a ‘public

use’ in the context of the Takings Clause.” Amerisource Corp. v. United

States, 525 F.3d 1149, 1153 (Fed. Cir. 2008); see also Hart v. Gordon, 591

Fed. App’x 125, 129 n.19 (3d Cir. 2014) (“[A] Takings Clause claim is a

non-starter when property is retained or damaged pursuant to the police

powerl.]”) (internal quotation marks omitted): Zitter v. Petruccelli, 213 F.

Supp. 3d 698, 708-09 (D.N.J. 2016) (“[Plroperty seized and retained

pursuant to the police power does not raise a Takings Clause claim|.]”).

Here, the Vehicle was not taken for public use. Rather, Chief

Mercavitch caused Bovani’s Towing to remove the Vehicle to its place of

business or another place of safety because it was partially blocking a

roadway and its unlicensed driver was unable to arrange for someone

else to retrieve it. See 75 Pa. Cons. Stat. Ann. § 3352(c)(2); Smith, 2005

WL 2746657, at *3—4; 1988 BMW 750IL, 716 F. Supp. at 173-74. This

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action by the Wyoming police department was an exercise of its police

powers, undertaken in its role as community caretaker, to maintain

public safety, and to uphold traffic laws. See Honda Lease Tr., 2024 WL

3219272, at *8; see also Davis v. Doe, No. 23-CV-4863, 2024 WL 1660542,

at *4 (E.D. Pa. Apr. 17, 2024) (no takings claim based on impoundment

and eventual sale of vehicle originally towed and impounded pursuant to

police power); Bey v. Hood, No. 6:19-CV-00227, 2020 WL 3039147, at *7

(E.D. Tex. Mar. 30, 2020) (no takings claim because property not taken

for public use where vehicle was towed because there was no licensed

driver).

Accordingly, summary judgment will be granted in favor of

Wyoming and against Toyota with respect to the plaintiff's Fifth

Amendment takings claim.

D. Fourteenth Amendment Due Process Claim

To make out a due process violation, a plaintiff must show the

deprivation of a cognizable property interest without constitutionally

sufficient process. See Montanez v. Sec’y Pa. Dept of Corrs., 773 F.3d 472,

482 (3d Cir. 2014). Central to the definition of due process is the right to

notice and the opportunity to be heard at a meaningful time and

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meaningful place. Fuentes v. Shevin, 407 U.S. 67, 80 (1972). “The level of

process due to a party prior to the deprivation of a property interest, such

as a lien, is highly dependent on the context.” Jn re Mansaray-Ruffin, 530

F.3d 230, 239 (3d Cir. 2008); see also Joyce Outdoor Advertising

Wallscapes, LLC v. City of Scranton, No. 3:24-cv-00791, 2024 WL

4900015, at *9 (M.D. Pa. Nov. 26, 2024). Thus, in determining what

process is due, we must balance so-called Mathews factors:

First, the private interest that will be affected by the

official action; second, the risk of an erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards: and finally, the

Government's interest, including the function involved

and the fiscal and administrative burdens that the

additional or substitute procedural requirement would

entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

It is undisputed that Toyota had a security interest in the Vehicle.

“[A] security interest is indisputably a property interest protected by the

Fourteenth Amendment.” Ford Motor Credit Co. v. NYC Police Dept, 503

F.3d 186, 191 (2d Cir. 2007) (citing Mennonite Bd. of Missions v. Adams,

462 U.S. 791, 798 (1983)). Toyota appears to contend that it was deprived

of its property interests in three ways: (1) the towing company’s retention

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of the Vehicle deprived Toyota of its property interest in the right to take

immediate possession of the Vehicle after default: (2) the accrual of

storage fees over a period of months, and the towing company’s refusal to

release the Vehicle without payment of those fees, constituted a

deprivation of Toyota’s property interest in the Vehicle because it imposed

a substantial possessory lien with priority over Toyota’s nonpossessory

security interest; and (3) Toyota was deprived of a property interest

because its security interest in the Vehicle was extinguished altogether

when the towing company utilized statutory abandonment procedures to

attempt to dispose of the Vehicle by public auction, and ultimately

obtained a certificate of salvage from PennDOT.

With respect to the first putative deprivation—impairment of

Toyota’s claimed right to take immediate possession of the Vehicle after

default—as a lienholder, Toyota had no present possessory right to the

Vehicle protected by due process. See Santander Consumer USA, Inc. v.

Cnty. of Nassau, 623 F. Supp. 3d 6, 16 (E.D.N.Y. 2022) (lienholder plaintiff

could not state a procedural due process claim against a county's vehicle

seizure policy because it did not have a present possessory right to the

seized vehicles). See generally U.C.C. § 9-601 cmt. 4 (noting that a

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nonpossessory security interest does not become a possessory security

interest until the secured party takes possession after a default).

Moreover, retention of the vehicle by the towing company did not deprive

Toyota of its ability to repossess the vehicle, which remained available

through the use of legal process.!° See 12 Pa. Cons. Stat. Ann. § 6251(b):;

13 Pa. Cons. Stat. Ann. § 9609(b)(2). Indeed, that is ultimately what

Toyota attempted to do, filing a replevin action in state court in July 2022,

ten months after Bovanis Towing took possession of the Vehicle, and

seven months after Toyota learned of the Vehicle’s location. Cf Rockledge

Dev. Co. v. Wright Twp., 767 F. Supp. 2d 499, 503 (M.D. Pa. 2011) (“For [a

lienholder’s] claim to succeed, however, it is not enough that its property

interest was in some attenuated manner affected by government action.

Instead, the government action must have deprived [the lienholder] of its

interest without due process of law.”)

With respect to the second and third putative deprivations,

however, Toyota has clearly established the deprivation of property

10 The gist of Toyote’s complaint with this is that the towing

company secured the Vehicle behind a locked gate, preventing Toyota

from exercising self-help to retake possession of the Vehicle. But that is

no different than if Clisham had kept the Vehicle in a residential garage.

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interests. The “seizure and retention of the car impaired [Toyota’s]

property interests,... depriving [Toyota] of the collateral for its lien

while the collateral’s value steadily depreciated. [Bovani’s Towing’s]

towing and storage fees also impaired [Toyota’s] interest by effectively

subordinating the priority of [Toyota’s] lien.” Am. Honda Fin. Corp. v.

Twp. of Aston, 546 F. Supp. 3d 371, 379 (E.D. Pa. 2021). And it is beyond

cavil that extinguishment of Toyota’s security interest altogether upon

issuance of a certificate of salvage constitutes a deprivation of a protected

property interest. Cf Rockledge Dev. Co., 767 F. Supp. 2d at 503 (“Case

law supports finding a deprivation when a mortgagee’s interest is

destroyed by government action, as happens when the mortgaged

property is sold at a tax sale.”).

We find it appropriate at this point, however, to pivot to Wyoming’s

Monell argument, which makes it unnecessary to reach the question of

what process was due.

E. Municipal Liability Under § 1983

“On its face, § 1983 makes liable ‘every person’ who deprives

another of civil rights under color of state law.” Burns v. Reid, 500 U.S.

478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In

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Monell vy. Department of Social Services, 436 U.S. 658 (1978), the

Supreme Court of the United States established that municipalities and

other local governmental units are included among those “persons”

subject to liability under § 1983. Jd. at 690. The Borough of Wyoming is

such a municipality subject to liability as a “person” under § 1983. See

Chizmar v. Borough of Trafford, 454 Fed. App’x 100, 106 (3d Cir. 2011);

Cannarozzo v. Borough of W. Hazleton, 575 F. Supp. 3d 510, 528 (M.D.

Pa. 2021).

But “[ulnder Monell, a municipality cannot be subjected to liability

solely because injuries were inflicted by its agents or employees.” Jiminez

v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007). Rather,

a municipality can be liable under § 1983 only if the conduct alleged to

be unconstitutional either “implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and promulgated by

that body’s officers” or is “visited pursuant to governmental ‘custom’ even

though such a custom has not received formal approval through the

body’s official decision-making channels.” Monell, 436 U.S. at 690-91.

is when execution of a government’s policy or custom, whether made

by its lawmakers or by those whose edicts or acts may fairly be said to

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represent official policy, inflicts the injury that the government as an

entity is responsible under § 1983.” Jiminez, 503 F.3d at 249. The

municipal policy or custom “must be ‘the moving force of the

constitutional violation’ in order to establish the liability of a government

body under § 1983.” Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981). “A

plaintiff must identify the challenged policy, attribute it to the

[municipality or corporation] itself, and show a causal link between

execution of the policy and the injury suffered.” Losch v. Borough of

Parkesburg, 736 F.2d 908, 910 (3d Cir. 1984).

Based on the undisputed facts of record, it is clear that, while

Wyoming had no official ordinances or written policies regarding towing

procedures—including, in particular, procedures for notifying record

owners or lienholders of vehicles towed at the direction of police—it did

have a regular custom and practice for the removal of unattended

vehicles from the Borough's roadways if they pose a danger or safety risk

to the public. That custom and practice was, essentially, reliance on the

statutory provisions of the state motor vehicle code—including, in

particular, 75 Pa. Cons. Stat. Ann. § 3352. It was Wyoming’s custom and

practice for police to call for a vehicle to be towed from a public roadway

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when its driver and other occupants are physically unable to remove the

vehicle themselves. See id. § 3352(c)(2). It was Wyoming’s custom and

practice to turn the vehicle over to the private towing company for storage

at its place of business or other safe location until the owner of the vehicle

could retrieve it, with the expectation that the owner would pay towing

and storage fees to the towing company upon retrieval of the vehicle. See

id. Moreover, under these statutory provisions, a municipal entity was

only affirmatively responsible for providing pre-deprivation notice and

an opportunity to be heard with respect to abandoned vehicles.!! Jd.

§ 3352(d).

Once the vehicle had been turned over to the towing company,

Wyoming’s custom and practice did not include any additional role for the

municipality in the towing company’s retention of the vehicle or the

return of the vehicle to its owner, except for processing reports of

abandoned vehicles for submission to PennDOT. See id. § 7301.1.

Notably, these statutes provided that a vehicle could be presumed

abandoned once it had remained on the private property of a salvor for

"tt thee tenes ee it was towed, the Vehicle at issue had not been

declared abandoned.

» 890

20 days, id. § 102, that a police department was required to pass the

report along to PennDOT within five business days, id. § 7311.1(a)(3),

and that upon receiving a report of an abandoned vehicle, it was

PennDOT who would provide written notice to the vehicle’s registered

owner and lenholders of record that the vehicle had been declared

abandoned, id. § 7305(a). The statutes dictated the content of such a

notice as well, requiring PennDOT to inform the owner and lienholders

of an abandoned vehicle that they had a right to reclaim the vehicle

within 30 days after the date of mailing of the notice, subject to payment

of statutorily authorized towing, storage, and reclamation fees,!? id.

12 We note that the storage fees authorized by statute are limited to

fees incurred from the date when the abandoned vehicle report was

submitted to PennDOT. See 75 Pa. Cons. Stat. Ann. § 7306. Any storage

lien asserted by a salvor for periods before that date would be common

law possessory liens, which generally can be enforced against a

lienholder only under very limited circumstances. See State Farm Mut.

Auto. Ins. Co. v. Jim Bowe & Sons, Inc., 539 A.2d 391, 394-95 (Pa. Super.

Ct. 1988) (holding that towing company was not entitled to garageman’s

lien for storage before owner of vehicle received notice, and it was not

entitled to garageman’s lien for storage after owner demanded return of

the vehicle and offered to pay a reasonable storage fee); Assocs. Fin.

Servs. Co. v. O'Dell, 396 A.2d 1324, 1326 (Pa. Super. Ct. 1979) (“The

holder of a bailment lease or installment sales contract will not be liable

for a lien asserted by a garageman for services which such holder has not

assented to.”); Pittsburgh Nat! Bank v. Schmidt, 41 Pa. D. & C.3d 143,

145 (Fayette Cnty. (Pa.) Ct. Com. Pl. 1985) (“[E]ven though a possessory

(continued on next page)

* 30°

§ 7305(b)(3), and to inform the owner and lienholders that they had a

right to request an administrative hearing to contest the abandoned

vehicle declaration and related towing and storage fees, id. § 7305(b)(5).

Under this statutory scheme, followed by Wyoming through custom

and practice, the Wyoming police are not the “moving force” after the

towing company has taken a vehicle away. See Honda Lease Tr., 2024 WL

3219272, at *5. Under the statutory scheme, an unclaimed vehicle

reasonably can be expected to be declared abandoned if it remains

unclaimed after 20 days, particularly in light of the statutory provision

authorizing the accrual of storage fees only from the date when the

abandoned vehicle report is submitted to PennDOT. Once that

abandoned vehicle report is submitted, the state agency is responsible for

promptly providing written notice to the vehicle’s registered owner and

any lhenholders of record.

Under the factual circumstances of this case, Wyoming may have

been the moving force initially behind removing the Vehicle from

Wyoming Avenue and turning it over to Bovani’s Towing. But it played no

hen may arise under circumstances in which the owner’s assent may be

reasonably implied, the bank’s assent is not to be implied merely by

virtue of the police officer’s direction to remove the vehicle.”).

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role whatsoever in any of the subsequent actions. Instead, the moving

force behind the extended period of storage and the extensive delay in

providing notice to the vehicle’s lienholder, Toyota, was Bovani’s Towing,

which waited 157 days—instead of 20—before submitting its abandoned

vehicle report to the West Pittston police department.!3 PennDOT then

mailed written notice of the abandoned vehicle declaration to Toyota,

which included information about reclaiming the Vehicle or requesting a

hearing before a municipal officer to challenge the abandonment

declaration.

But the failure of a municipality’s individual employees or agents

to follow an otherwise appropriate municipal policy does not subject the

municipality to hability under Monel/ and § 1983. See Sims v. City of

Philadelphia, 552 Fed. App’x 175, 177 (3d Cir. 2014) (“Under Monell, the

failure of individual City employees to follow an otherwise-constitutional

municipal policy does not subject the municipality to liability under

§ 1983.”); Talbert v. Kelly, 799 F.2d 62, 67 (3d Cir. 1986) (noting that in

13 We note that here, too, is a break in the causal chain between

Wyoming and subsequent events. Because the towing company’s place of

business is located in a different municipality, the abandoned vehicle

report was submitted to a different municipal police department, which

we note processed the report the very same day it received it.

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§ 1983 actions against governmental agencies, “the carelessness of an

employee in failing to follow a policy ... may establish the negligence of

the employee but does not fasten liability on the governmental agency.”);

Carlos ex rel. Carlos v. York Cty. Civil No. 1:15-CV-1994, 2019 WL

6699710, at *27 (M.D. Pa. Dec. 9, 2019) (“[I]solated incidents in which

county employees fail to follow a facially appropriate municipal policy

generally do not impose lability upon the municipality itself.”). The

failure of Bovani’s Towing to comply with the state statutory scheme, and

Wyoming’s policy, on processing abandoned vehicles does not support the

imposition of liability on Wyoming.

The plaintiff further argues that Wyoming's policy on towing

vehicles was deficient because it did not specifically mandate Wyoming

officials notify lenholders of any incident in which a vehicle was towed

at police direction. In this, the plaintiff relies not on the affirmative

implementation or execution of a policy, but on Wyoming’s alleged failure

to adopt “adequate” policies with respect to the towing and storage of

vehicles. But beyond a vague assertion that the existing policy was

inadequate because it did not include such a mandate, see Groman v.

Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (finding vague

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assertions of policy deficiencies insufficient to impose liability under

Monell and § 1983), the plaintiff points to no prior incidents from which

we might reasonably infer that Wyoming had actual or constructive

knowledge of the purported policy deficiencies upon which the plaintiff’s

§ 1983 Monell claim is premised. Despite the opportunity to engage in

discovery, the plaintiff has failed to adduce evidence of any prior incidents

in which a lienholder was similarly deprived of its security interest in a

vehicle without timely notice and an opportunity for a hearing. See City

of Oklahoma City vy. Tuttle, 471 U.S. 808, 823-24 (1985) (“[A] single

incident of unconstitutional activity is not sufficient to impose liability

under Monel/, unless proof of the incident includes proof that it was

caused by existing, unconstitutional municipal policy, which policy can be

attributed to a municipal policymaker.”); Brown v. City of Pittsburgh, 86

F.3d 263, 292-93 (3d Cir. 2009) (recognizing that, where no explicit policy

is identified, “‘more proof than the single incident will be necessary’ to

establish a causal connection between the incident and some municipal

policy”). Regardless, while the policies or practices of Wyoming with

respect to the towing of vehicles at police direction might fall short of an

ideal policy as envisioned by the plaintiff, policies are not deficient simply

_ □□ □

because they are not the best. See Serafin v. City of Johnstown, 53 Fed.

App'x 211, 215 (3d Cir. 2002) (“The fact that the City’s policy was not the

most effective policy possible, however, does not, without more, create an

unreasonable risk to detainees’ safety or demonstrate the City’s

indifference to such a risk, and there is no ‘more’ here.”).

Accordingly, summary judgment will be granted in favor of

Wyoming and against Toyota with respect to the plaintiff's Fourteenth

Amendment due process claim.

V. CONCLUSION

For the foregoing reasons, defendant Wyoming's motion for

summary judgment (Doc. 64) will be granted and plaintiff Toyota’s motion

for summary judgment (Doc. 57) will be denied. The clerk will be directed

to enter judgment in favor of the defendant, Wyoming, and against the

plaintiff, Toyota. The clerk will be further directed to mark this case as

closed.

An appropriate order follows.

Dated: March 31, 2025 Ose! 9 init [es

SEPH F. SAPQ@RITO/JIR.

United States District Judge

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