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HomeMy WebLinkAbout2016-3557 TERRY W. LININGER, Individually and : IN THE COURT OF COMMON PLEAS OF t/d/b/a SUMMIT 10, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant : : v. : NO.: 2016-3557 MLD : JAY D. LANE a/k/a JAY D. LANE, SR., : MECHANICS’ LIEN and CYNTHIA M. LANE, husband and : wife, : Owners : IN RE: OWNERS’ PRELIMINARY OBJECTIONS BEFORE GUIDO, PJ., MASLAND, PECK, JJ . OPINION and ORDER OF THE COURT Currently before us are the preliminary objections of property owners to the Mechanics’ Lien filed by claimant on June 22, 2016. The Notice of Filing of the Mechanics’ Lien left blank the date of filing. On June 29, 2016, the Sheriff served the Notice and Claim on owners. Neither claimant nor the Sheriff filed an Affidavit of Service until August 9, 2016, which was after owners filed their preliminary objections. Owners have asked that the Mechanics’ Lien be stricken because claimant did not strictly comply with the requirements of the Mechanics’ Lien Law, 49 P.S. §§ 1101-1902. Standard for Mechanics’ Lien Law Preliminary Objections When faced with preliminary objections in mechanics’ lien proceedings that will result in a denial of claim or a dismissal of suit, courts should only sustain in cases which are clear and free from doubt. Castle Pre-Cast Superior Walls of Delaware, Inc. v. Strauss-Hammer, 610 A.2d 503, 504 (Pa. Super. 1992). A mechanics’ lien is an “extraordinary remedy which should only be afforded to \[contractors or\] subcontractors who judiciously adhere to the requirements of the Mechanics’ Lien Law.” Phila. Constr. Servs., LLC v. Domb, 903 A.2d 1262, 1267 (Pa. 2006). Strict compliance with the statute is essential to effectuate a valid claim. Castle Pre-Cast, supra 1 at 504. “Service requirements under Pennsylvania’s Mechanic’s Lien law are strictly construed such that a complaint will be stricken if the statutory service requirements are not met\[.\]” Regency Invs. v. Inlander Ltd., 855 A.2d 75, 77 (Pa. Super. 2004). Although courts should strictly construe notice requirements under the Mechanics’ Lien Law, the doctrine of substantial compliance should be applied to “temper this strict construction as to the form of the notice.” (emphasis in original) Tesauro v. Baird, 335 A.2d 792 (Pa. Super. 1992). The doctrine of substantial compliance refers only to the “form” of the notice. Regency Invs., supra at 77. “The ‘form’ of the notice means ‘enough appears on the face of the statement to point the way to a successful inquiry.’” Regency Invs., supra at 80 FN 1, quoting Knabb’s . Appeal, 10 Pa186, 188 (Pa. 1849). The doctrine of substantial compliance does not apply to the explicit requirements for executing service of notice under the statute. Regency Invs., supra at 77. “\[W\]hen we speak of the ‘form’ of the notice of claim, we are talking about the statements contained in the notice, not service of the notice.” Regency Invs., supra at 80 FN 1. Form of Notice Tesauro v. Baird, supra is factually similar to the instant case. In that case, the court held that copies of the properly served notice of a mechanics’ lien claim substantially complied with the Mechanics’ Lien Law. The notice stated the court and term but did not state the term number or filing date as required by the statute. The Superior Court reasoned that the owners were not prejudiced by the incomplete notice because the information contained therein gave them sufficient notice of the nature and purpose of the claim against their property. The notice, therefore, was sufficient to point the way to a successful inquiry. Id. at 796. In the instant case, owners argue that the notice of the claim was insufficient because it did not contain the date of filing. However, we are satisfied that claimant substantially complied 2 with the requirements of the statute as to the form of the notice. It was served within the statutory period provided for in 49 P.S. § 1502. It included the docket number of the action, the affected property address, the amount of the lien, and the Prothonotory’s time stamp, as well as the required attached exhibits. In other words, it provided the owners sufficient notice of the nature and purpose of the claim against their property. Failure to File an Affidavit of Service within the Statutory Period Owners also object to claimant’s failure to file an affidavit of service of notice within twenty days of service of notice, as required by statute. The statute specifically provides that: An affidavit of service of notice . . . shall be filed within twenty (20) days after service setting forth the date and manner of service. Failure . . . to file the affidavit . . . within the times specified shall be sufficient ground for striking off the claim. (emphasis added) 49 P.S. § 1502. On August 9, 2016, the Sheriff’s Office recorded a signed and 1 verified Return of Service. This was well outside of the statutory time for filing the affidavit of service of notice.The plain language of the statute indicates that failure to timely file the affidavit within the prescribed time is sufficient cause to strike the claim. “The language of the Mechanics’ Lien Law is clear and unambiguous and, as such, must be construed pursuant to common usage.” Phila. Constr. Servs., supra at 1265. We are satisfied that the doctrine of 2 substantial compliance does not apply to that requirement. See Regency Invs., supra at 77; Tesauro v. Baird, supra at 796; see also Rees, Weaver & Co., Inc. v. M.B.C. Paper Mill Corp., 406 A.2d 562, 565 FN 5 (Pa. Super. 1979) (distinguishing the failure to file an affidavit within 1 A sheriff’s return is adequate proof that the owner received the requisite notice under the Mechanics Lien Law. J.H. Hommer Lumber Co. v. Dively, 584 A.2d 985 (Pa. Super. 1990). 2 Claimant cites Knickerbocker Russell Co. v. Crawford, 936 A.2d 1145 (Pa. Super. 2007) for the proposition that a defect in the return of service does not necessarily invalidate his claim. However, the issue in Knickerbocker is the extent to which strict compliance with Pa. R.C.P. 405 is mandatory. Knickerbocker does not deal with the requirements of the Mechanics’ Lien Law and is, therefore, not relevant to our analysis. 3 the statutory time period from the failure to observe the requirements for the contents of the affidavit). We find the instant case factually indistinguishable from McCarthy v. Reed Terrace, Inc., 218 A.2d 229 (Pa. 1966). In that case, the claim was stricken because the affidavit of service was not filed within the twenty days required by statute. The time frame is mandatory and failure to strictly comply invalidates the lien. Therefore, we will enter the following order: ORDER It appearing of the record that claimant failed to file an affidavit of service of notice within the statutory time period set forth in 49 P.S. § 1502, owners’ Preliminary Objections are SUSTAINED and the mechanics’ lien is stricken. BY THE COURT, /s/ Edward E. Guido_ Edward E. Guido, P.J. Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 Douglas G. Miller, Esquire Irwin & McKnight, P.C. W. Pomfret Professional Building 60 W. Pomfret St. Carlisle, PA 17013 4