Wings, Beer and the Service of a Pennsylvania Mechanic’s Lien
Wait, that’s not the slogan. There have been changes to Pennsylvania’s mechanic’s lien statute. As I’m sure you’ve heard (a lot), the state has instituted a construction notice directory, but implementing this directory does not change the requirements for service of a formal notice or mechanic’s lien.
Here’s Pennsylvania’s statute regarding the filing & notice of filing of claim (mechanic’s lien).
49 P.S. § 1502
§ 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 manner 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.
(b) Venue; property in more than one county. Where the improvement is located in more than one county, the claim may be filed in any one or more of said counties, but shall be effective only as to the part of the property in the county in which it has been filed.
(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.
Buffalo Wild Wings — Gets Saucy
In a recent appeals decision, Babich v. Wings, PA: Superior Court 2017, the subcontractor’s mechanic’s lien was invalidated because he did not substantially comply with service requirements laid out in statute.
Ted Babich (Babich) was a plumbing subcontractor hired by Horizon Retail Construction (Horizon) for the improvement to a Buffalo Wild Wings (Wings) located in Washington, Pennsylvania. In the fall of 2014, Babich filed a mechanic’s lien claim for just under $25,000.
In January 2015, Wings filed a complaint stating Babich didn’t comply with the notice/service of the lien. The court agreed and in June 2015, the court granted Babich an opportunity to amend his claim, and Babich did so in July 2015. Unfortunately, another complaint filed by Wings stated Babich still hadn’t complied with the service of the lien.
Fast forward to the Court of Appeals in January 2017. Babich argued that the trial court made a mistake when it dismissed his mechanic’s lien, claiming he substantially complied with statute and, therefore, that his lien is valid.
“Appellant claims that he properly served Appellee with effective notice of his intention to file a mechanics’ lien for the amount owed to him by Appellee. In the alternative, Appellant urges this Court to apply the doctrine of substantial compliance and to find Appellant in substantial compliance with the notice requirements of the Mechanics’ Lien Law.”
Appeals Court Examines Statute
The appeals court focused on section C of § 1502. Filing and notice of filing of claim. Statute says “service of the notice of filing of claim shall be made by an adult” which the court interprets to mean “in person by the sheriff to the extent practicable.”
The court further explained that if service by sheriff is unsuccessful, the claimant can post notification at the job site. “Once the claimant establishes that personal service has not been successfully effectuated, the statute expressly permits posting as an alternative method of service.”
I know what you are thinking: “OK, so Babich must have tried service via sheriff (or adult) and when that failed, he posted notice at the jobsite?” Nope… the first time around he sent notice via USPS first class mail. Guess what service via USPS first class mail gets you? An invalidated claim.
Babich got a second chance though! After dismissal of his initial claim, the court gave him an opportunity for a “do-over.” So, second time around, when he amended his claim, he definitely served the lien via personal service, right? Wrong.
“Thus, Appellant simply needed to instruct the Sheriff to post notice, had he attempted to obtain personal service on Appellee and failed. However, based on our review of the record, it appears that Appellant never attempted to obtain personal service on Appellee in compliance with the requirements of 49 P.S. § 1502, nor did he utilize this alternative statutory service provision. We agree with the trial court that Appellant’s efforts at service ‘were, at best, minimally compliant with statutory requirements.’”
So, once again, Babich’s lien was invalidated. Know what Babich’s next argument was? “The trial court abused its discretion by dismissing his amended complaint without leave to amend to address the purported service deficiencies.”
Babich had more than enough opportunity to adhere to statute, and the appeals court agreed.
“The trial court has already provided Appellant with ample opportunity to amend his original complaint to demonstrate compliance with the applicable service requirements, and Appellant failed to do so. Based on our review of the record, we agree with the trial court’s conclusion that there is no “reasonable possibility” that another amended pleading will resolve the service deficiencies.”
This Clean Up Requires More than a Wetnap
The first time he filed his lien, Babich did not have counsel at his side providing him guidance. The second time he filed his lien, Babich had counsel, but that counsel’s focus was not construction law and his counsel misadvised him. The third time, well, there is no third time. No lien and no recovery of monies owed, compounded by legal expenses — not good for Babich.
Always strictly adhere to statute and always seek legal guidance from an expert in mechanic’s lien filings.
