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Fight over Manchester towing heads to top court

New Hampshire Union Leader

February 28. 2013 11:26PM

The U.S. Supreme Court is to hear a dispute March 20 involving a car towed in Manchester six years ago.

The lawsuit was brought against a Queen City company that towed and traded a car belonging to a seriously ill man. Robert Pelkey sued his landlord, Colonial Village on West Clarke Street, and Dan's City Auto Body after they towed his 2004 Honda Civic from a parking lot outside the rental apartment complex in 2007 after a snowstorm.

"We were very surprised that the court agreed to hear the case," said attorney Kate Strickland, who represents Dan's City. "They probably receive thousands of requests to hear cases a year, and I think about one half of one percent they actually agree to hear."

The justices are being asked to determine whether state or federal regulations should have dictated what happened to the car after it was towed - in effect, whether federal trucking laws pre-empt state consumer protection statutes. If federal law supersedes state law, car owners can't sue a towing company. Under state law, they can.

Pelkey had a heart attack while undergoing a foot amputation, and ended up in the hospital for two months. When he was discharged, he discovered his car had been towed.

Court filings show the car sat at a lot owned by Dan's City for two months. Dan's employees believed the vehicle was abandoned. After inquiring about the car's location, Pelkey's attorney, Brian Shaughnessy of Kazan, Shaughnessy, Kasten and McDonald in Manchester, was told Dan's City had scheduled the vehicle to be sold at auction in two days.

Shaughnessy says in court briefs that he informed Dan's City staff that Pelkey wanted to get his car back, but Dan's went ahead with the auction. Shaughnessy claims no one bid on the car, so it remained in Dan's City's possession, but that when he made inquiries about reacquiring the car, he was told the car had been sold.

According to court documents, Dan's City eventually did trade the car to a third party, without compensating Pelkey.

Pelkey sued under the Consumer Protection Act. A Superior Court judge granted Dan's City a summary judgment, after finding that the Federal Aviation Administration Authorization Act of 1994 pre-empts state laws "related to a price, route, or service of any motor carrier ... with respect to the transportation of property." The New Hampshire Supreme Court reversed that decision in April 2012, saying the federal law "does not preempt state laws pertaining to the manner in which a towing company disposes of vehicles in its custody to collect towing and storage charges secured by a lien."

Kate Strickland, attorney for Dan's City, appealed.

"We argued that the New Hampshire Supreme Court reached a different conclusion than two other courts, despite looking at an essentially identical fact pattern," she said.

Calls to Shaughnessy for comment were not returned.

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