Terra Firma Builders v. King, W.

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2019 PA Super 219

TERRA FIRMA BUILDERS, LLC IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

WILLIAM KING A/K/A BILLY M. KING : No. 2593 EDA 2018

AND MELANIE L. KING A/K/A

MELANIE L. FRANTZ

Appeal from the Order Dated August 22, 2018

In the Court of Common Pleas of Delaware County Civil Division at

No(s): CV -2015-001536

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

DISSENTING OPINION BY MURRAY, J.: FILED JULY 19, 2019

Owners argue that the mechanics' lien at issue in this case is invalid

because Contractor did not perfect the lien by filing an affidavit of service of

notice for the lien pursuant to Section 502(a) of the Mechanics' Lien Law. See

42 P.S. § 1502(a). The Majority concludes that Owners waived their claim

that Contractor failed to perfect the lien because Owners did not raise this

defense to the enforcement of the lien until after preliminarily objections and

the trial to enforce the lien. Majority Op. at 8-9. In my view, however, the

Mechanics' Lien Law and the applicable precedent do not preclude a party from

raising a defense to the enforcement of a mechanics' lien at any time, and

thus, a party may move to strike a lien even after the conclusion of

enforcement proceedings. Therefore, I dissent.

* Retired Senior Judge assigned to the Superior Court.

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Because this case presents an issue of statutory interpretation, we

recognize the following:

"As this matter implicates an issue of statutory interpretation,

our task is to determine the will of the General Assembly using

the language of the statute as our primary guide." Osprey

Portfolio, LLC v. Izett, [] 67 A.3d 749, 754 ([Pa.] 2013)

(internal quotation marks omitted). See generally 1 Pa.C.S.[A.]

§ 1928(a) ("The object of all interpretation and construction of

statutes is to ascertain and effectuate the intention of the General

Assembly."). When the words of a statute are clear and precise,

reviewing courts may not disregard those words under the pretext

of pursuing the "spirit" of the enactment. See id. § 1921(b).

Where, however, there is a conflict or ambiguity, we may resort

to the tools of statutory construction. See Oliver v. City of

Pittsburgh, H 11 A.3d 960, 965 ([Pa.] 2011). In so doing, we

keep in mind that such tools are used as an aid in uncovering the

intent of the Legislature, which is always the objective in matters

of statutory construction. See Commonwealth v. Baker, [] 690

A.2d 164, 167 ([Pa.] 1997).

Bricklayers of W. Pa. Combined Funds, Inc. v. Scott's Dev. Co., 90 A.3d

682, 689 (Pa. 2014).

As the Majority explained, our Supreme Court has stated generally the

following about mechanics' liens:

Mechanics' liens were unknown at common law and are entirely

a creature of statute. Such liens are designed to protect persons

who, before being paid (or fully paid), provide labor or material to

improve a piece of property. See generally Matternas v.

Stehman, 642 A.2d 1120, 1124 (Pa. Super. 1994) ("The

Mechanics' Lien Law of 1963 was intended to protect the

prepayment labor and materials that a contractor invests in

another's property [.]"). Mechanics' liens accomplish this goal by

giving lienholders security for their payment independent of

contractual remedies.

Id. (footnote and some citations omitted).

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"The Mechanics' Lien Law, Title 49 of Pennsylvania's Statutes, is a

creation in derogation of the common law, and, therefore, any question of

interpretation shall be resolved in favor of strict, narrow construction."

Wyatt Inc. v. Citizens Bank of Pa., 976 A.2d 557, 564 (Pa. Super 2009)

(emphasis added). It is well -settled that "[t]o effectuate a valid [m]echanics'

Mien claim, the contractor or subcontractor must strictly comply with the

requirements of Title 49." Id. (emphasis added).

"To file properly a [m]echanics' [I]ien, a subcontractor must [first]

strictly comply with the notice requirement of § H501[.]"1 Id. (emphasis

1 Section 501 provides as follows:

(b.1) Time Period of Formal Notice. No claim by a

subcontractor, whether for erection or construction or for

alterations or repairs, shall be valid unless, at least thirty (30)

days before the same is filed, he shall have given to the owner a

formal written notice of his intention to file a claim, except that

such notice shall not be required where the claim is filed pursuant

to a rule to do so as provided by section 506.1.

(c) Contents of Formal Notice. The formal notice shall state:

(1) the name of the party claimant;

(2) the name of the person with whom he contracted;

(3) the amount claimed to be due;

(4) the general nature and character of the labor or materials

furnished;

(5) the date of completion of the work for which his claim is

made;

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added). Section 502(a) then sets forth the requirements for perfecting a

mechanics' lien:

(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.

49 P.S. § 1502(a) (emphasis added).

Our case law has made clear that strict compliance with these provisions

of the Mechanics' Lien Law is necessary to secure a valid lien. Regency Invs.,

Inc. v. Inlander Ltd., 855 A.2d 75, 79 (Pa. Super. 2004). "Pennsylvania

courts have not hesitated to strike down a claim if the notice provisions were

(6) a brief description sufficient to identify the property claimed

to be subject to the lien.

(d) Service of notice. The notice provided by this section may

be served by first class, registered or certified mail on the owner

or his agent or 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.

49 P.S. § 1501.

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not met." Tesauro v. Baird, 335 A.2d 792, 793 (Pa. Super. 1975). This

Court has explained:

The doctrine of substantial compliance does not apply when the

timeliness of the service of notice is at issue. Tesauro, supra.

Substantial compliance applies only to a defect in the "form" of

the notice. Id. Previously, this Court addressed arguments

regarding substantial compliance in that particular context of

Mechanics' Lien law. Samango v. Hobbs, H 75 A.2d 17,20 ([Pa.

Super.] 1950). The Samango Court stated:

. .The plaintiff contends that a substantial conformance

.

with this section of the statute is all that is required, and

that the section will not be construed to be mandatory

unless it would be inequitable to allow the lien to remain.

This contention entirely overlooks the well established rules

applicable to the interpretation of mechanics' liens. The

language of the provision is clearly mandatory [ . ]. A

. .

compliance with the provision is a prerequisite to the validity

of the lien, and the failure to observe it invalidates 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.

Id. at 19-20 (internal citation omitted). Hence, substantial

compliance does not apply to situations where notice was served,

but service was untimely. Tesauro, supra. Notwithstanding

more recent amendments to the Mechanics' Lien statute, one fact

remains the same: notice of a claim must be served "within one

(1) month after filing...." See 49 P.S. § 1502(a)(2).

Regency Invs., 855 A.2d at 79.

Section 505 sets forth the procedure for contesting the validity of a

mechanics' lien:

Any party may preliminarily object to a claim upon a showing of

exemption or immunity of the property from lien, or for lack of

conformity with this act. The court shall determine all preliminary

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objections. If an issue of fact is raised in such objections, the

court may take evidence by deposition or otherwise. If the filing

of an amended claim is allowed, the court shall fix the time within

which it shall be filed. Failure to file an objection preliminarily

shall not constitute a waiver of the right to raise the same

as a defense in subsequent proceedings.

49 P.S. § 1505 (emphasis added).

Here, there is no dispute that Contractor failed to perfect the mechanics'

lien because Contractor did not file the affidavit of service of notice required

by Section 502(a). Contractor nonetheless asserts that Owners waived their

right to challenge the lien under Section 505 on this basis because they did

not raise the issue until after the trial on the enforcement of the lien.

The Majority agrees, concluding - without explanation or citation to any

authority:

Section 505 can properly be construed as providing that if one of

the specified defenses has not been raised 'preliminary' by the

time a § 1701 enforcement action has been filed to obtain

judgment on the claim, but the owner desires to assert a Section

505 defense, it must be raised in the enforcement proceeding in

accordance with the manner provided for in the applicable rules of

civil procedure.

Majority Op. at 8.

There is no support, either in the Mechanics' Lien Law itself or the

applicable case law, for this interpretation of Section 505. Section 502 states

that in order to perfect a lien, the lienholder must file a claim with the

prothonotary, serve written notice on the owner, and file an affidavit of service

of notice. 49 P.S. § 1502(a). Section 502 goes on to state that "[f]ailure to

serve such notice or to file the affidavit or acceptance of service within the

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times specified shall be sufficient ground for striking off the claim." 49 P.S.

§ 1502(a)(2) (emphasis added). Section 505 provides that any party may file

preliminary objections "for lack of conformity with this act," in which the

objecting party could then contest the validity of the lien based on the

lienholder's failure to file an affidavit of service. See 49 P.S. § 1505.

Critically, Section 505 goes on to state that "[f]ailure to file an objection

preliminarily shall not constitute a waiver of the right to raise the same

as a defense in subsequent proceedings." Id. (emphasis added). Thus,

Section 505 unambiguously places no limit on when a party may raise a

defense to the enforcement of the lien. See id.

Additionally, case law has explicitly held that strict compliance with the

notice provisions of Sections 501 and 502 is necessary to secure a valid

mechanics' lien. See Wyatt Inc., 976 A.2d at 564; Regency Invs., 855

A.2d at 79. It is well settled that Pennsylvania courts will strike a lien if the

lienholder did not satisfy these notice provisions. Tesauro, 335 A.2d at 793.

For example, in Rees, Weaver & Company Incorporated, v. M.B.C.

Paper Mill Corporation, 406 A.2d 562 (Pa. Super. 1979), the contractor

properly filed and served a mechanics' lien on the owner, but filed the affidavit

of service of notice after the 20 -day period mandated by Section 502(a). Id.

at 563. The contractor subsequently "filed an action to obtain judgment on

its claim[,]" and eventually obtained a default judgment. Id. Approximately

two months later, the owner "filed a petition to strike the judgment, alleging

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that [the contractor]'s claim was unperfected because of filing irregularities."

Id. The trial court determined that the mechanics' lien was invalid and

granted the owner's petition to strike the default judgment. Id.

This Court affirmed the trial court's determination that the lien was

invalid, and explaining:

The statute provides that the failure to file the affidavit within the

prescribed period "shall be sufficient ground for striking off the

claim;" and the cases hold that this unequivocal provision is not

to be diminished or qualified. McCarthy v. Reed Terrace, Inc.,

[] 218 A.2d 229 ([Pa.] 1966); Day and Zimmerman, Inc. v.

Blocked Iron Corp. of [Am.], [] 147 A.2d 332 ([Pa.] 1959); 12

Stand.Pa.Prac. Mechanics' Lien § 179 (rev.ed.1964). As stated in

Keely v. Jones, 35 Pa. Super. 642, 645 (1908): "When the act

fixes a date at which, or within which, something is to be done in

order to establish a valid claim, substantial conformity will not

answer. There must be compliance with the requirement." See

also Thompson v. Radell, 42 Pa. Super. 105 (1910).

"[T]he proceeding for enforcement of the lien is entirely

dependent upon the existence of the lien, and if there is no lien,

or it is divested or stricken off, the enforcement proceeding falls

with it." 12 Stand.Pa.Prac. Mechanics' Lien § 223 at 204

(rev.ed.1964).

Id. at 565 (footnote omitted).

Therefore, in my view, the Mechanics' Lien Law and the pertinent

authority support the conclusion that the failure to file an affidavit of service

of notice invalidates a mechanics' lien, and under Section 505, the owner may

move to strike the lien on that basis at any time. There is no support for the

Majority's position that Section 505 contains a limitation on the time during

which an owner may challenge the validity of a lien.

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In this case, the parties do not dispute that Contractor failed to file the

affidavit of service of notice mandated by Section 502(a). Thus, Contractor's

mechanics' lien was invalid. Under Section 505 and the applicable case law,

Owners were entitled to challenge the validity of the lien on this basis at any

time, and did so by filing a petition to strike the lien. Consequently, I would

affirm the trial court's decision to grant the petition to strike.

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