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Home My WebLink About2008-1905 MLDLAKEVIEW CONSTRUCTION, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff/Claimant V. : CIVIL ACTION - LAW PENNSYLVANIA REAL ESTATE INVESTMENT TRUST, Defendant/Owner NO. 08-1905 (MLD) IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S MECHANICS' LIEN CLAIM BEFORE HESS, OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., August 7, 2008. In this civil case, Plaintiff Lakeview Construction ("Lakeview" or "Plaintiff') filed a mechanics' lien claim against Defendant Pennsylvania Real Estate Investment Trust ("PREIT" or "Defendant") in the Cumberland County Court of Common Pleas.' Defendant has filed preliminary objections in response to Plaintiff's mechanics' lien claim. Defendant seeks to have the lien stricken for deficiencies in content of the notice, and failure to properly serve the notice, of the claim as required under the Mechanics' Lien Act. The preliminary objections were argued before the court on July 9, 2008. Plaintiff did not respond to Defendant's preliminary objections, did not submit a brief and did not appear before the court for the oral argument. On July 21, 2008, as requested by the 'The mechanics' lien at issue is in the amount of $48,623.00. panel at the argument, Defendant submitted a supplemental brief on the authority of the court to strike Plaintiff's mechanics' lien claim. STATEMENT OF FACTS Defendant PREIT is the owner of Disney Store #6603, Capital City Mall, 3506 Capital City Mall Drive, Camp Hill, Pennsylvania .3 Hoop Retail Stores ("Hoop") leases the property from PREIT .4 Hoop entered into a contract with Plaintiff Lakeview for general contracting services on the Disney Store ,5 and Lakeview completed the work on January 31, 2008.6 Lakeview filed a mechanics' lien claim against PREIT in the Cumberland County Court of Common Pleas. Lakeview mailed the "Claim of Lien" to the courthouse on March 25, 2008, and the claim was subsequently deemed filed by the Prothonotary on March 26, 2008.' Attached to the Claim of Lien was an "Affidavit of Service," executed by Rob Schoenberg, Vice President of Lakeview, which read as follows: 1, Rob Schoenberg, Vice President of Claimant, being first duly sworn, on oath, depose and state that on March 25, 2008, 1 caused to be served the attached Claim for Mechanics Lien by sending a duplicate thereof to: • PREIT, Pennsylvania Real Estate Investment Trust, 200 S. Broad Street, Philadelphia, Pennsylvania 19102-3803; 2 Preliminary Objections of Defendant to Mechanic's Lien Claim, filed June 13, 2008 (hereinafter "Preliminary Objections"). s Claim of Lien, ¶1, dated March 25, 2008, and filed March 26, 2008 (hereinafter "Claim of Lien"). 4 Claim of Lien, ¶2. s Claim of Lien, ¶4. 6 Claim of Lien, ¶3. See Claim of Lien. 2 • Hoop Retail Stores, LLC., 915 Secaucus Road, Secaucus New Jersey, 07094-2409 by certified mail, return receipt requested.$ On June 13, 2008, PREIT filed preliminary objections to Lakeview's mechanics' lien claim asserting that the lien should be stricken. PREIT argues, inter alia, that Lakeview's notice was defective because Lakeview (a) did not give the term, number and date of filing of the claim, (b) served the notice prior to filing the claim and (c) improperly served notice upon the Owner, a Pennsylvania resident, by `certified mail, return receipt requested,' and not in the manner required under the Mechanics' Lien Act.9 Consequently, PREIT asserts that the mechanics' lien should be stricken, with prejudice, because the notice executed by Lakeview was not sufficient and not properly served in conformance with the requirements of Section 1502 of the Mechanics' Lien Act. io Lakeview did not respond to PREIT's preliminary objections. An oral argument was held on July 9, 2008, and was attended by PREIT's counsel. No one appeared on behalf of Lakeview. At the oral argument, the panel asked PREIT to submit a supplemental brief on the authority of the court to strike Lakeview's mechanics' lien claim. PRIET submitted the brief on July 21, 2008.11 s Affidavit of Service, dated March 25, 2008, and filed March 26, 2008 (hereinafter "Affidavit of Service"). 9 Preliminary Objections, ¶¶ 3-8, 13-14. According to PREIT, the Pennsylvania Rules of Civil Procedure do not permit service of a writ of summons on a Pennsylvania resident by "certified mail, return receipt requested. "9 10 See 49 Pa. C. S. §1502. " Supplemental Brief in Support of Preliminary Objections of Defendant to Mechanic's Lien Claim, dated July 16, 2008. 3 DISCUSSION 1. The Mechanics' Lien Act The Mechanics' Lien Act is a "creature of statutory derogation of the common law, and any questions of interpretation should be resolved in favor of a strict, narrow construction. To effectuate a valid lien claim, the [contractor] must be in strict compliance with the requirements of the [Act]." Wentzel Applewood Joint Venture v. 801 Mkt. St. Assocs., LP, 2005 PA Super. 239,¶6, 878 A.2d 889, 892 (quoting Martin Stone Quarries, Inc. v. Robert M. Koffel Builders, 2001 PA Super. 318, ¶4, 786 A.2d 998, 1002 (citation omitted), appeal denied, 569 Pa. 707, 805 A.2d 525 (2002)). The Mechanics' Lien Act provides in pertinent part as follows: § 1502. Filing and notice of filing of claim (a) Perfection of Lien. To perfect a lien, every claimant must; (1) file a claim with the prothonotary as provided by this act within six (6) months after the completion of his work; and (2) serve written notice of such filing upon the owner within one (1) month after filing, giving the court, term and number and date of filing of the claim. An affidavit of service of notice, or the acceptance of service, shall be filed within twenty (20) days after service setting forth the date and matter of service. Failure to serve such notice or to file the affidavit or acceptance of service within the times specified shall be sufficient ground for striking off the claim. (c) Manner of Service. Service of the notice of filing of claim shall be made by an adult in the same manner as a writ of summons in assumpsit, or if service cannot be so made then by posting upon a conspicuous public part of the improvement. 12 'Z 49 Pa. C.S. §1502. 11 A mechanics' lien is an extraordinary remedy, which should be afforded only to those contractors who judiciously adhere to the requirements of the Mechanics' Lien Act. Regency Invs. Inlander Ltd., 2004 PA Super. 274, ¶12, 855 A.2d 75, 80; Samango v. Hobbs, 167 Pa. Super. 399, 403, 75 A.2d 17, 20 (1950). The Act provides an expeditious method to obtain a lien at very little cost to the claimant, and affords a contractor the protection of a lien before proceeding to prove his entitlement to payment in an action in assumpsit. Regency Invs. Inlander Ltd., 2004 PA Super. 274, ¶12, 855 A.2d 75, 80. A mechanics' lien is especially advantageous to a claimant because the lien takes effect promptly and assumes priority over other liens. Regency Invs. Inlander Ltd., 2004 PA Super. 274, ¶12, 855 A.2d 75, 80. Thus, a claimant who desires a mechanics' lien must be extremely vigilant with respect to compliance with the statutory provisions of the Act. Regency Invs. Inlander Ltd., 2004 PA Super. 274, ¶9, 855 A.2d 75, 79; Samango v. Hobbs, 167 Pa. Super. 399, 403, 75 A.2d 17, 20 (1950). Pursuant to 42 Pa. C.S. §1505, "[a]ny party may preliminarily object to a [mechanics' lien] claim upon a showing of exemption or immunity of the property from lien, or for lack of conformity with [the] act." 11. Content of Notice of Mechanics' Lien Claim. The language of the Mechanics' Lien Act is clear and unambiguous. Under Section 1502(a)(2), a claimant must "serve written notice of such filing upon the owner within one month after filing." 13 The notice must set forth three things: (1) the fact of " 49 Pa. C. S. §1502(a)(2). 5 the filing of the claim; (2) the court, term and number to which it is filed and (3) the date of its filing. 14 The notice given in the instant case consisted of Lakeview's serving upon PREIT a duplicate of Lakeview's "Claim of Lien." 15 PREIT asserts that the content of the duplicate Claim of Lien was defective in terms of notice because it "did not give the `term and number and date of filing of the claim' as required by the Act." 16 The court agrees. The notice served upon PREIT, consisting solely of the duplicate Claim of Lien, failed to provide the date the claim was filed with the court, 17 as is required by the Act." This failure to include the filing date likely occurred because Lakeview mailed the duplicate claim to PREIT on March 25, 2008,19 the same day it mailed the original claim to the Cumberland County Courthouse to be filed .20 Thus, because the claim had not yet been filed in the courthouse as of the date the notice was mailed to PREIT, the notice did not include the date of filing and was therefore defective. The notice to PREIT was additionally defective because it did not provide the term and number to which the claim was filed .21 Both the term and number must be included 14 49 Pa. C.S. §1502(a)(2). " See Claim of Lien. 16 Preliminary Objections, ¶5. 17 See Claim of Lien. "See 49 Pa. C. S. §1502(a)(2). 19 See Affidavit of Service, dated March 25, 2008. 20 See Claim of Lien, dated March 25, 2008. 21 See Claim of Lien. 31 in the notice to be strictly in compliance with the Mechanics' Lien Act .22 Of course Lakeview could argue that PREIT, upon learning that a mechanics' lien was to be filed in the Cumberland Courthouse, could have undertaken to locate the lien in the index without the term and number. See Oyer v. Coble, 71 Pa. D. & C. 293, 297-98, 1950 WL 3034 (Franklin Co. C.C.P. 1950). While this is true from a practical standpoint, the mechanics' lien law contains mandatory language, is class legislation, and must be strictly construed. In O'Kane v. Murray, 252 Pa. 60, 97 A. 94 (1916), the Pennsylvania Supreme Court, in speaking of the Mechanics' Lien Act, said: The manifest importance of the provision clearly shows that the legislature intended it should be mandatory, and the failure to comply with it should invalidate the lien. The right to file a mechanics' lien, as has been uniformly held by all the courts, is of statutory origin. No such right existed at common law. It is class legislation and therefore must be strictly construed. If a party desires to avail himself of it, he must comply strictly with the provisions of the statute conferring the right. Nothing is presumed in favor of the lien.23 When the act of assembly directs specifically that a particular thing shall be done in order to establish a claim, substantial conformity will not answer; there must be compliance with the requirement.24 252 Pa. 60, 68, 97 A. 94, 97 (1916). Thus, upon electing to avail itself of the special rights given by the Mechanics' Lien Act, Lakeview was bound to comply strictly with the requirements thereof, and as it failed to do this with respect to the contents of the notice required by the Act, there is no 22 See 49 Pa. C. S. §1502(a)(2). 23 Quoting Schively v. Radell, 227 Pa. 434, 443, 76 A. 209, 212 (1910). 24 Quoting Westmoreland Guarantee Bldg. & Loan Assn. v. Connor, 216 Pa. 543, 549, 65 A. 1089, 1091 (1907). 7 valid lien. The Mechanics' Lien Act clearly states that "failure to serve such notice ... shall be sufficient ground for striking off the claim."25 The words "such notice" are intended to refer to a notice containing all the matters set forth in the Act. Oyer v. Coble, 71 Pa. D. & C. 293, 299, 1950 WL 3034 (Franklin Co. C.C.P. 1950). Therefore, the notice must contain everything specifically provided for in the Act and substantial compliance is not sufficient Schively v. Radell, 227 Pa. 434, 443, 76 A. 209, 212 (1910). 111. Service of Notice of Mechanics' Lien Claim PREIT further contends that Lakeview's claim is defective because Lakeview's service of the notice was insufficient under the Mechanics' Lien Act. On March 25, 2008, the day before the mechanics' lien claim was filed in the Cumberland County Court ,26 Lakeview served notice of the claim upon PREIT "by certified mail, return receipt requested. ,27 Under Section 1502(a)(2) of the Act, a claimant must "serve written notice of such filing upon the owner within one (1) month after filing, ,28 and such service must be "in the same manner as a writ of summons in assumpsit. "29 Lakeview's service of the notice of the claim was prior to the filing of the alleged claim, and not "within one (1) month after filing" of the claim as required by the Act .30 As discussed above, "[w]here a mechanics' lien claimant does not adhere strictly to the 25 49 Pa. C. S. §1502(a)(2). 26 See Claim of Lien. 27 See Affidavit of Service. 28 49 Pa. C. S. §1502(a)(2). 29 49 Pa. C.S. §1502(c). so See 49 Pa. C. S. §1502(a)(2) (emphasis added). procedure for perfecting a mechanics' lien claim, the lien must be stricken as a matter of law; in such a situation, the court does not have discretion to refuse to strike the lien." Standard Pennsylvania Practice 2d, § 105:185 (emphasis added) (citing Vinay Homes, Inc. v. Pytosh, 8 Pa. D. & C. 4th 315, 319, 1990 WL 312767 (Monroe Co. C.C.P. 1990). Furthermore, under Section 1502(c) of the Mechanics Lien Act, notice of the filing of a mechanics' lien claim "shall be made by an adult in the same manner as a writ of summons in assumpsit, or if service cannot be so made then by posting upon a conspicuous public part of the improvement."31 Pennsylvania courts have interpreted this language to require the service of notice of a mechanics' lien to be made in person by the sheriff to the extent practicable. Clemleddy Construction, Inc. v. Yorston, 2002 PA Super. 342, ¶7, 810 A.2d 693, 696-97; Regency Investments, Inc. v. Inlander Limited, 2004 PA Super. 274, ¶8, 855 A.2d 75, 78-79. In Clemleddy Construction, Inc. v. Yorston, 2002 PA Super. 342, 810 A.2d 693, the Superior Court of Pennsylvania explained their interpretation of the language in Section 1502(c) of the Act as follows: Section 1502(c) requires service to `be made by an adult in the same manner as a writ of summons in assumpsit. '32 The Pennsylvania Rules of Civil Procedure recognize claims asserted in assumpsit to be civil actions. 33 Consequently, a writ of summons in assumpsit must be served in the same manner as service of process in a civil action. 31 49 Pa. C.S. §1502(c). 32 49 Pa. C.S. §1502(c). " See Pa. R.C.P. 1001 (stating that "[a]ll claims heretofore asserted in assumpsit or trespass shall be asserted in one form of action to be known as `civil action. "'). 9 Service of process in a civil action is prescribed by Rule 400 of the Pennsylvania Rules of Civil Procedure .34 It states, in pertinent part: Rule 400. Person to Make Service. (a) Except as provided in subdivisions (b) and (c) and in Rules 400.1 and 1930.4, original process shall be served within the Commonwealth by the sheriff.35 Consequently, we interpret Section 1502(c)'s requirement of personal service to `be made by an adult in the same manner as a writ of summons in assumpsit' to mean that notice of filing of claim in a mechanic[s]' lien case must be served by the sheriff 36 2002 PA Super. 342, ¶¶8-9, 810 A.2d 693, 697. However, if personal service cannot be successfully effectuated, the statute expressly permits posting as an alternative method of service. Clemleddy Construction, Inc. v. Yorston, 2002 PA Super. 342, ¶7, 810 A.2d 693, 696; Regency Investments, Inc. v. Inlander Limited, 2004 PA Super. 274, ¶8, 855 A.2d 75, 78. In the present case, Lakeview used mail to serve notice of the mechanics' lien claim, rather than personal service or posting as required by the Act. Furthermore, as discussed above, Lakeview mailed the notice one day prior to filing the claim, in non- compliance with the requirement of 49 P.S. §1502(2) requiring service of notice one month after filing. To perfect a mechanics' lien, it is essential to adhere strictly to the statutory notice requirements. Thus, Lakeview's failure to comply with the procedure set 34 See Pa. R.C.P. 400. " Pa. R.C.P. 400(a) (emphasis added). 36 See 49 Pa. C. S. §1502(c). 10 forth in the Mechanics' Lien Act renders its attempt at perfecting the lien ineffective, and consequently there is no valid lien. In combination, the deficiencies discussed above compel the court to strike the mechanics' lien and to enter the following order: ORDER OF COURT AND NOW, this 7th day of August, 2008, upon consideration of Defendant's preliminary objections to Plaintiff's mechanics' lien claim, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained and Plaintiff's mechanics' lien claim, dated March 26, 2008, is stricken. Lakeview Construction, Inc. 10505 Corporate Dr. Suite 200 Pleasant Prairie, WI 53158 Plaintiff/Claimant Peter J. Norman, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers 260 South Broad St. Philadelphia, PA 19102 Attorney for Defendant Sophia Moraitis, Esquire S. Moraitis & Associates 1120 North LaSalle St., Suite IOL Chicago, IL 60610 Courtesy Recipient 11 BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 12 LAKEVIEW CONSTRUCTION, IN THE COURT OF COMMON PLEAS OF INC., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff/Claimant V. : CIVIL ACTION - LAW PENNSYLVANIA REAL ESTATE INVESTMENT TRUST, Defendant/Owner NO. 08-1905 (MLD) IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S MECHANICS' LIEN CLAIM BEFORE HESS, OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 7th day of August, 2008, upon consideration of Defendant's preliminary objections to Plaintiff's mechanics' lien claim, and for the reasons stated in the accompanying opinion, the preliminary objections are sustained and Plaintiff's mechanics' lien claim, dated March 26, 2008, is stricken. BY THE COURT, J. Wesley Oler, Jr., J. Lakeview Construction, Inc. 10505 Corporate Dr. Suite 200 Pleasant Prairie, WI 53158 Plaintiff/Claimant 14 Peter J. Norman, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers 260 South Broad St. Philadelphia, PA 19102 Attorney for Defendant Sophia Moraitis, Esquire S. Moraitis & Associates 1120 North LaSalle St., Suite IOL Chicago, IL 60610 Courtesy Recipient