Petition for Writ of Certiorari — Manville Sales Corp. v. A. T. & T. Technologies, Inc.

Supreme Court brief1989

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‘> Supreme Court, U.S.

88=2139 i r. F ILED

JUN 29 1889

CLER:

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

MANVILLE SALES CORPORATION, PETITIONER

A. T. & T. TECHNOLOGIES, INC.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

PENNSYLVANIA

W. William Anderson*

SMITH & LeCATES

124 East Market Street

York, Pennsylvania 17401

(717) 845-9641

ATTORNEYS FOR PETITIONER

*xCounsel of Record

JOSEPH F.SPANIOL UR.

QUESTION PRESENTED

Whether the Trial Court's Summary

striking of the Petitioner's mechanics

lien, without a hearing, for failure to

file an Affidavit of Service, constituted

a deprivation of property without due

process of law in violation of the due

process clause of the 14th Amendment.

LIST OF OTHER PARTIES

All of the parties in the Supreme Court

of Pennsylvania are listed in the caption.

CORPORATE PARTY'S AFFILIATIONS

Petitioner is a wholly-owned subsidiary

of Manville Corporation. Petitioner has

no subsidiaries. The following

corporations are affiliates of

Petitioner by virtue of being subsidiaries

of Petitioner's parent corporation,

Manville Corporation:

European Overseas Corporation (Del.)

Glaswerk Schuller G.m.b.H. (Germany)

Holophane Europe Ltd. (United Kingdom)

Holophane International Corporation

(Del. )

International Manville Corporation

(Del. )

Johns-Manville Corporation (New York)

Johns-Manville India Limited (Del.)

Ken-Caryl Ranch Corporation (Del.)

Manville Canada Inc. (Ontario)

Holophane S.A. de C.V. (Mexico)

Rocky Mountain International Insurance

Ltd. (Bermuda)

Sunbelt Contractors, Inc. (Texas)

Manville de France S.A. (France)

Manville Deutschland G.m.b.H. (Germany)

Manville Espanola S.A. (Spain)

Manville Europe Corporation (Del.)

Manville Forest Products Corporation

(Del. )

Arkansas & Louisiana Missouri Railway

Co. (Louisiana)

Pine Pipeline, Inc. (Louisiana)

Manville (Great Britain) Ltd. (United

Kingdom)

Manville h.f. (Iceland)

Manville Investment Corporation

(Colorado)

Manville Italiana S.p.A. (Italy)

Manville Japan Ltd. (Japan)

Manville Mexicana S.A. de C.V. (Mexico)

Manville Produtos Florestais' Ltd.

(Brazil)

Lages Reflorestamento Ltda. (Brazil)

Igaras-Servicos Agro-Florestais Ltd.

(Brazil)

New Materials Inc. (New York)

iii

TABLE OF CONTENTS

Question Presented

List of Other Parties

Corporate Party's

Affiliations

Table of Authorities

Opinions Below

Jurisdiction

Constitutional and Stat-

utory Provisions Involved

Statement of the Case

Raising of the Federal

Question

Reasons for Granting the

Writ

Conclusion

Appendix A

Appendix B

Appendix C

TABLE OF AUTHORITIES

CASES:

Armstrong v. Manzo, 380 U.S.

545

Baltimore and Ohio RR Co. Vv.

U.S., 298 U.S. 349

Buchalter v. New York, 319

o.8. 627

Ex parte Wall, 107 U.S. 265

Fuentes v. Schevin, 407 U.S.

Lilly v. Jagqgard, 48 Pa.

Super. 439 (1912)

Samango v. Hobbs, 167 Pa.

Super. 399, 75 A.2d 17 (1950)

Security-First National Bank

of Los Angeles v. Rindge Land

and Navigation Co., 85 F.2d 557

(C.C.A. Cal. 1936), rehearing

denied, 86 F.2d 3, Cert. denied,

299 U.S. 613, rehearing denied,

300 U.S. 686

Smith v. Organization of

Foster Families, 431 U.S. 816

Taylor v. Kentucky, 436 U.S.

478 '

Thirsk v. Evans, 211 Pa. 239,

60 A. 726 (1905)

STATUTES:

Page

Pennsylvania Mechanics! Lien

Law of 1963

49 P.S. §1501(b) 7

49 P.S. §1501(c) 14

49 P.S. §1502(a) (2) 8

49 P.S. §1503 14

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

NO.

MANVILLE SALES CORPORATION, PETITIONER

Vv.

A. T. & T. TECHNOLOGIES, INC.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

A writ of certiorari is respectfully

sought to review the Order of the Supreme

Court of Pennsylvania denying allowance

of appeal from the Superior Court which

upheld the lower Court's summary striking

of the Petitioner's mechanics lien without

a hearing.

OPINIONS BELOW

There was no opinion of the Supreme

Court. A copy of the Court's Order

denying Petitioner's Petition for

Allowance of Appeal from the decision of

the Superior Court is set forth in

Appendix B to this Petition.

The opinion of the three-judge panel

of the Superior Court, not reported, is

set forth in Appendix B. Likewise, the

Order of the Superior Court denying the

Petitioner's Application for Reargument

is set forth in Appendix B.

The opinion of the lower Court, the

Court of Common Pleas of Berks County,

Pennsylvania, not reported, which was

issued after the Petitioner appealed to

the Superior Court from the lower Court's

Summary Order, is set forth in Appendix

B. Finally, the lower Court's two

sentence Order summarily striking the

Petitioner's mechanics lien is also set

forth in Appendix B.

JURISDICTION

i. The Order of the Supreme Court

of Pennsylvania was entered on March 31,

1989 (infra, Appendix B, p. 26). It is

final by its terms.

2. The federal question was raised

as indicated in the excerpts from the

record in the body of this Petition,

infra, pp. 9-10, Appendix C, pp. 42-45.

3. The jurisdiction of this Court

is invoked under the provisions of 28

U.S.C. §1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The 14th Amendment to the

Constitution of the United States provides

in pertinent part as follows:

",..nor shall any State deprive any

person of life, liberty or property,

without due process of law..."

The text of the relevant provisions

of the Pennsylvania Mechanics Lien Law of

1963 is set forth in full in Appendix A,

infra, pp. 20-25.

STATEMENT OF THE CASE

This case originated upon the filing

ef a Complaint by the Petitioner to

enforce a mechanics lien it had entered

against the Respondent almost two years

before. The Respondent filed Preliminary

Objections including a Motion to Strike

the Mechanics Lien because the Petitioner

had failed to file an Affidavit of Service

of Notice of the filing of the mechanics

lien within twenty days after service as

required by statute.

No hearing was held, but Petitioner,

in its brief in opposition to the

Respondent's Preliminary Objections argued

that the lien could not be invalidated on

a technicality, because the Respondent (1)

had admittedly received notice of Peti-

tioner's intent to file the mechanics lien

prior to its filing, (2) was guilty of

laches, and (3) had either waived or was

estopped from raising the failure to file

the Affidavit of Service. Since there

were no facts in the record to support a

waiver or estoppel, the Petitioner, in its

brief, requested a hearing to establish

those facts.

After reviewing the briefs of both

parties, the Berks County Court of Common

Pleas entered the following Order, without

opinion:

"AND NOW, the 27 day of April, 1987,

Defendant's Preliminary Objections

are sustained. The mechanics lien

claim filed in this action on April

1985 is hereby stricken."

(Appendix B, infra, p. 41)

Upon Petitioner's appeal to the

Superior Court from the lower Court's

Summary Order, the lower Court issued an

opinion pursuant to the Pennsylvania Rules

of Appellate Procedure. In that opinion,

the Court held that the Petitioner was not

entitled to the defense of laches, or the

defenses of waiver or estoppel. Thus, by

implication, the lower Court ruled that

the Petitioner was not entitled to a

hearing to establish waiver or estoppel.

The Petitioner was a subcontractor

which had furnished certain materials to

the general contractor of a construction

project for the Respondent in Reading,

Pennsylvania. Subsequently, the general

contractor filed for reorganization under

Chapter 11 of the Bankruptcy Code without

having paid the Petitioner for the

materials delivered to the project. For

this reason the Petitioner filed a

mechanics lien against property of the

Respondent.

Because Petitioner was a

subcontractor, the Pennsylvania Mechanics

Lien Law required it to serve the

Respondent with a thirty-day notice of its

intention to file a mechanics lien (49

P.S. §1501(b)), which it did. MThirty-

seven days thereafter, on April 1, 1985,

the Petitioner filed its mechanics lien

in the amount of $45,395.00. The

Pennsylvania Mechanics Lien Law required

the Petitioner, within one month

thereafter, to serve the Respondent with

a notice that the mechanics lien had been

filed, giving the term and number and date

of filing of the claim (49 P.S.

§1502(a) (2)). The Statute further

provides that twenty days after service

of that notice, an Affidavit of Service

must be filed setting forth the date and

manner of service (id). The Statute

further provides:

"Failure to serve such notice or to

file the affidavit...of service

within the time specified shall be

sufficient ground for striking off

the claim." (id)

The Petitioner failed to file an

Affidavit of Service as required, and

consequently the record, which consisted

only of the pleadings and the mechanics

lien itself, is devoid of evidence as to

whether or not the notice was in fact

served.

RAISING OF THE FEDERAL QUESTION

‘The Petitioner did not directly cite

the 14th Amendment in the State Court

proceedings, but it did argue that the

lower Court's decision deprived it of its

mechanics lien without a hearing, clearly

a reference to a lack of due process.

Thus in its Application for Reargument to

the Superior Court the Petitioner stated:

"The effect of the decision is to

dismiss the Plaintiff out of Court

on a technicality without a hearing,

and it leaves the Plaintiff without

a remedy even though it admittedly

furnished the materials for which the

mechanics lien was filed and the

Defendant had the benefit of those

materials." (Appendix C, infra, p.

44)

The Petitioner made the identical

statement in its Petition for Allowance

of Appeal to the Supreme Court of

Pennsylvania. (Appendix C, infra, pp. 42-

43)

The federal question has thus been

raised pursuant to the ruling in Taylor

v. Kentucky, 436 U.S. 478, in which this

Court held it had jurisdiction to review

a State Court decision where the counsel

for the Petitioner, while not referring

to the due process clause specifically,

had objected to the denial of a requested

instruction by invoking “fundamental

principles of judicial fair play." The

Court stated "This: should have sufficed

to alert the trial judge to Petitioner's

reliance on due process principles." 436

U.S. at 462, fH. 20.

REASONS FOR GRANTING THE WRIT

By striking the Petitioner's

mechanics lien on a technicality without

a hearing, the lower Court deprived the

Petitioner of a property right in

violation of the due process clause of the

14th Amendment. As held in the case of

Security-First National Bank of Los

Angeles v. Rindge Land & Navigation Co.,

85 F.2d 557 (C.C.A. Cal. 1936), rehearing

denied 86 F.2d 3, cert. denied 299 U.S.

613, rehearing denied 300 U.S. 686, the

right of a creditor to retain a lien until

the obligation is paid is a substantive

property right, and depriving a creditor

of such right is violative of the 14th

Amendment. Further, a State may not,

through its judicial branch, disregard the

pi |

constitutional prohibition. Buchalter v.

New York, 319 U.S. 427.

The Petitioner had, in the

Pennsylvania Courts, based its claim for

a right to amend its pleadings and present

evidence on the issues of waiver and

estoppel on prior Pennsylvania cases which

had held that the failure to file an

Affidavit of Service is not fatal, Lilly

v. Jaggard, 48 Pa. Super. 439 (1912) (if

such failure was at the request of the

owner or due to his fraudulent or tortious

act), and recognized waiver and laches as

justifiable reasons for failure to file

the Affidavit. Samango v. Hobbs, 167 Pa.

Super. 399, 75 A. 2d 17 (1950). In the

latter case, the Superior Court stated:

",..since the requirement to file the

affidavit is, in our_ opinion,

mandatory and the learned court below

found that there was no waiver of

the requirement and that Defendants

- were not guilty of laches, the Motion

to Strike Off the Judgment was

properly granted." 167 Pa. Super. at

404."

The lower Court in the instant case

held, however, that the statutory

provisions must be strictly complied with

and there is no room for the defenses of

laches, waiver and estoppel. (Appendix B,

infra, pp. 40-41) The Superior Court

agreed, stating:

"Since Appellant's admitted failure

to comply with the statute has

created this uncertainty [as to

whether the Appellee had proper

notice], it is not entitled to such’

defenses." (Appendix B, infra, p. 30)

But that is circular reasoning. It

is no answer to the Petitioner's

contention, supported by cases, that

laches, waiver and estoppel are defenses

to the failure to file an Affidavit of

Service, that the Petitioner is not

entitled to those defenses because it

failed to file an Affidavit of Service.

Moreover, the record is clear that

the Respondent did receive notice of the

Petitioner's intent to file the mechanics

lien. That notice contained essentially

the same information that the mechanics

lien itself would contain (compare 49 P.S.

§1501(c) and 49 P.S. §1503, Appendix A,

infra, pp. 20-22, 24-25), and its purpose

was to alert the Respondent to set aside

monies to satisfy the lien and withhold

payment to that extent on its contract

with the general contractor. Thirsk v.

Evans, 211 Pa. 239, 60 A. 726 (1905).

Since the Petitioner was a

subcontractor, it had no privity of

contract with the Respondent owner and has

no other remedy except its worthless claim

against the bankrupt general contractor.

A fundamental requirement of due

process is the opportunity to be heard.

Armstrong Vv. Manzo, 380 U.S. 545.

Accordingly, due process of law has been

said to mean "a law which hears before it

condemns, which proceeds upon inquiry and

renders judgment only after trial." Ex

parte Wall, 107 U.S. 265.

Before a person is deprived of an

interest encompassed by the 14th

Amendment's protection of liberty and

property, he must_ be afforded an

opportunity for some kind of hearing,

except for extraordinary situations where

some valid governmental interest is at

stake that justifies postponing the

hearing until after the event. Smith v.

Organization of Foster Families, 431 U.S.

816.

The due process right to be heard

prior to deprivation of property does not

depend upon an advance showing that one

will surely prevail at the hearing; the

simplicity of the issues involved in

determining the ultimate right to

continued possession of the property may

be relevant to the formality = and

scheduling of the prior hearing, but it

cannot undercut the right to a hearing of

some kind. Fuentes v. Schevin, 407 U.S.

67.

The right under the due process

Clause to a full hearing includes the

right of the party whose rights are sought

to be affected to introduce evidence and

have judicial findings based upon it.

Baltimore & Ohio RR Co. v. U.S., 298 U.S.

349.

The Petitioner, having been deprived

of its property right protected by the

14th Amendment by the State Courts of

Pennsylvania without an opportunity for

a hearing, as guaranteed by the 14th

Amendment, wherein it could produce

evidence to justify its failure to comply

with a technical requirement of the

Pennsylvania Mechanics Lien Law, this

arbitrary conduct of the Pennsylvania

State Courts should not go uncorrected by

this Court.

CONCLUSION

The Petition for a Writ of Certiorari

should be granted.

Respectfully submitted,

W. William Anderson

SMITH & LeCATES

Attorneys for Petitioner

June, 1989.

APPENDIX A

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

CONSTITUTION OF THE UNITED STATES

Amendment XIV, Section 1.

All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

PENNSYLVANIA MECHANICS' LIEN LAW OF 1963

49 P.S. §1501

Notices by subcontractor as condition

precedent.

* * * * * * * * * *

(b) Formal Notice in all Cases by

Subcontractor. 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.

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;

(6) a brief description sufficient

to identify the property claimed to be

subject to the lien; and

(7) the date on which preliminary

notice of intention to file a claim was

given where such notice is required by

subsection (a) of this section, and a copy

thereof.

The notice may consist of a copy

of the claim intended to be filed,

together with a statement that the

claimant intends to file the original or

a counterpart thereof.

(ad) Service of Notice. The notices

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. §1502

(a) Perfection of Lien. To perfect a

lien, every claimant must:

(1) file a claim with the

prothonotary as provided by this act

within four (4) 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 clain.

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

clain.

* * * * * * * * * *

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.

49 P.S. §1503 Contents of clain.

The claim shall state:

(1) the name of the _ party

claimant, and whether he files as.

contractor or subcontractor;

(2) the name and address of the

owner or reputed owner;

| (3) the date of completion of the

claimant's work; -

(4) if filed by a subcontractor,

the name of the person with whom he

contracted, and the dates on which

preliminary notice, if required, and of

formal notice of intention to file a claim

was given;

(5) if filed by a contractor under

a contract or contracts for an agreed sun,

an identification of the contract and a

general statement of the kind and

character of the labor or materials

furnished;

(6) in all other cases than that

set forth in clause (5) of this section,

a detailed statement of the kind and

character of the labor or materials

furnished, or both, and the prices charged

for each thereof;

(7) the amount or sum claimed to

be due; and

(8) such description of the

improvement and of the property claimed

to be subject to the lien as may be

reasonably necessary to identify then.

APPENDIX B

HE DECISIONS BELOW

Order of the Supreme Court of

Pennsylvania endorsed on Petitioner's

Petition for Allowance of Appeal:

"March 31, 1989. Petition Denied. Per

Curiam."

Order of the Superior Court of

Pennsylvania dated October 7, 1989:

"The Court hereby DENIES the

appellant's application for reargument of

the decision dated August 15, 1988."

Opinion of the Superior Court of

Pennsylvania filed August i5, 1988:

"MEMORANDUM:

Appellant, Manville Sales Corporation,

appeals from an order of the trial court

sustaining Appellee's preliminary

objections to, and striking, Appellant's

mechanics' lien. The trial court held

that Appellant's failure to file an

affidavit of service of notice of filing

its claim, required by §502(a)(2) of the

Mechanics! Lien Law of 1963, invalidated

the lien. We affirm.

Appellant is the successor to Johns-

Manville Sales Corporation (Johns-

Manville). In 1984, Johns-Manville

supplied certain materials to Wertz

Engineering Co. (Wertz), which was the

general contractor on a new construction

project for Appellee, A.T. & 7%.

Technologies, in Reading, Pennsylvania.

In 1985, Wertz filed for reorganization

under Chapter 11 of the Bankruptcy Code

without having paid Appellant for the

materials previously delivered to

Appellee's work site. Appellant sent

Appellee a thirty (30) days notice of its

intention to file a mechanics' lien

against Appellee's property on February

21, 1985. The mechanics' lien was field

by Appellant on April 1, 1985, in the

amount of forty-five thousand, three

hundred ninety-five ($45,395.00) dollars.

On January 26, 1987, Appellant filed

a complaint to enforce the lien filed

almost twenty-two (22) months earlier.

On February 23, 1987, Appellee filed

preliminary objections in the nature of

a motion to strike the mechanics' lien,

alleging, inter alia, that Appellant

failed to file an affidavit of service of

notice of filing the mechanics' lien claim

as required by §502(a) (2) of the

Mechanics' Lien Law of 1963.’ Appellant

defended on the ground that Appellee was

either guilty of laches or waived its

right to raise the defect due to its delay

in seeking to strike the lien. The Court

of Common Pleas found that Appeilee was

not guilty of laches, nor had it waived

its right to raise Appellant's defect in

perfecting its claim, and struck the lien.

It is from the order of the trial court

striking its lien that Appellant appeals.

On appeal, Appellant first complains

that Appellee, by its delay of over

twenty-three (23) months before moving to

strike the lien, was guilty of laches,

and as a result, either waived its right

to, or should have been estopped fron,

‘Act of August 24, 1963, P.L. 1175,

No. 497, 49 P.S. §1101, et seq.

raising appellant's defect. Upon review

of the record and the trial court's

opinion, we find that the trial court

adequately discussed and correctly decided

the issue of laches, waiver, and estoppel.

ee Oo Rees, Weaver and Co. v B.C.

Paper Mill, 267 Pa. Super. 148, 406 A.2d

562 (1979). As the trial court pointed

out: "It may be possible that’ the

[Appellee] took no action to strike the

lien for a twenty-five (25) month period

because the [Appellee] did not have proper

notice." Slip Op. p. 3. Since Appellants

admitted failure to comply with the

statute has created this uncertainty, it

is not entitled to such defenses.

Appellant also contends that the trial

court erred in its interpretation of the

statute and argues that a subcontractor

should not be held to the same strict

compliance with the statute as a general

contractor. We find this claim also to

be without merit. Section 502(a) of the

Mechanics' Lien Law of 1963, Act of August

24, 1963, P.L. 1175, No. 497, Art. V,

Section 502(a), 49 P.s. §1502 (a)

specifically provides:

(a) Perfection of Lien. To perfect

a lien, every claimant must:

(1) file a claim with the

prothonotary as provided by this act

within four (4) 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 clain. An

affidavit of service of notice, or

the acceptance of service, shall be

filed within twenty (20) days after

service. Failure to serve such

notice or to file the affidavit or

acceptance of service within the

Ss e ied sha be

ground for striking off the claim.

(emphasis supplied).

In addition to the above’ general

requirements imposed on "every claimant"

to perfect a lien, §501(b) of the Act’

places an additional requirement upon

subcontractors involved in new

construction projects to serve a formal

thirty (30) day notice on the owner of

their intention to file a lien as a pre-

condition to filing and perfecting a valid

lien.

Appellant does not cite to, nor has our

research disclosed, any authority for its

argument that subcontractors are _ to

receive some special consideration when

they have failed to follow the mandatory

procedures of the Act. We are mindful,

moreover, of our Supreme Court's statement

in O'Kane v. Murray, 252 Pa. 60, 97 A. 94

(1916), where the claimant failed to

249 P.S. §1501(b).

properly serve the notice of the filing

of the claim:

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 68, 97 A. at 96.

We have previously held that where a

sub-contractor's formal notice of

intention to file a lien was served only

twenty-one (21) days before the filing of

the lien and not the full thirty (30) days

required by the statute, the lien was

defective on its face and, barring

amendment, was subject to being struck.

Zeigler Lumber and Supply Company vv.

Golden Triangle Development Company, Inc.,

229 Pa. Super. 548, 326 A.2d 524 (1974).

This Court has never hesitated to give the

Mechanics' Lien Law its full effect with

regard to subcontractors, and will not do

so in this instance.

Appellant's reliance on Jilly v.

Jaggard, 48 Pa. Super 439 (1912), and

Samango v. Hobbs, 167 Pa. Super. 399, 75

A.2d 17 (1950), is misplaced. In Lilly,

we said that the statutory duty on the

Claimant to file an affidavit of service

of notice within the prescribed period

might be excused if the delay was at the

request of the owner or was due to his

fraudulent or tortious act. No such claim

is made in the case before us. In

Samango, we upheld the trial court's

ruling that the owners had not waived

their right to raise the claimants'

failure to file the affidavit of service,

not only after the lien was filed, but

following execution on the judgment and

sheriff's sale. Accordingly, we find

appellant's argument without support.

Order affirmed.

Opinion of the Court of Common Pleas

of Berks County, Pennsylvania dated

November 9, 1987:

"This opinion is in support of our

order granting the defendant's preliminary

objections to strike a mechanics’ lien for

failure of the plaintiff to comply with

49 P.S. §1502(a)(2), which requires a

filing of an affidavit of service of

notice within twenty (20) days after

service.

The facts of this case are as follows.

The plaintiff, Johns-Manville Corporation,

in 1984 supplied construction materials

to a contractor who was working on a

construction project for the defendant,

A.T. & T. Technologies, Inc. In 1985 the

contractor for the defendant's

construction project filed for

reorganization under Chapter 11 of the

Bankruptcy Code without having paid the

plaintiff for the materials delivered to

the project.

On February 21, 1985, the plaintiff

sent a thirty (30) day notice of his

intention to file a mechanics' lien

against the defendant's property. On

April 1, 1985, the plaintiff filed the

mechanics' lien in the amount of Forty-

Five Thousand, Three Hundred Ninety-Five

($45,395.00) Dollars. The plaintiff,

however, failed to file an affidavit of

service of notice within twenty (20) days

as required by the statute. On January

26, 1987, the plaintiff filed a complaint

in this court to enforce the mechanics'

lien. The defendant then filed

preliminary objections to strike the lien.

It is settled law in Pennsylvania that

the filing of an affidavit of service is

mandatory and failure to comply with the

statute will invalidate the lien.

McCarthy v. Reed Terrance, Inc., 420 Pa.

534, 218 A.2ad 229 (1966); Day and

Zimmerman v. Blocked Iron Corp., 394 Pa.

386, 147 A.2d 332 (1959). The reason that

a court must strictly construe the

mechanics' lien statute is that a

mechanics' lien is a purely statutory

right and there is no such remedy

available at common law, thus a person

seeking the benefit of the Act must

proceed in strict compliance. Samango v.

Hobbs, 167 Pa. Super. 399, 75 A.2da 17

(1980).

The plaintiff has raised several

argument that he believes prevents the

mechanics' lien from being stricken. The

plaintiff first argues that the defendant

is guilty of laches for waiting twenty-

five (25) months to object to the filing

of the mechanics' lien. This court

believes that the twenty-five (25) month

delay did not constitute laches. The

Pennsylvania Supreme Court in O'Kane v.

Murray, 252 Pa. 60, 97 A.94 (1916),

discussed the importance of the affidavit

of service in the mechanics' lien statute.

The Court stated that:

"The purpose of the provision is

apparent. It is to protect the owner

by furnishing him an opportunity while

the facts are accessible to ascertain

if the claim is correct, if the labor

and materials were furnished as set

forth in the lien, and if the claim has

been properly and legally entered so

as to bind his real estate. Ina large

building operation there may be many

parties entitled to file claims, and

it is important to the owner that the

several claimants give him the notice

required by the statute."

Id. at 97."

We believe that the reasoning stated

almost seventy (70) years ago by the

Pennsylvania Supreme Court is still

applicable today. The affidavit of

service was enacted by the legislature as

a form of insurance for aé_e large

corporation such as A.T.-& T. Technologies

so that they would have notice of the

filing of a mechanics' lien. Without the

affidavit of service there can be no

guarantee that the defendant was properly

served. It may be possible that the

defendant took no action to strike the

lien for a twenty-five (25) month period

because the defendant did not have proper

notice.

Plaintiff also argues that due to the

twenty-five (25) month delay in attempting

to strike the lien the defendant should

be estopped from striking the lien. The

essential elements of estoppel are

misleading words, conduct or silence by

the party against whom estoppel is

asserted, unambiguous wit of reasonable

reliance on the misrepresentation by the

party seeking to assert the estoppel, and

no duty of inquiry on the party seeking

to assert estoppel. Straup v. Times

Herald, 283 Pa. Super. 58, 423 A.2d 713

(1981). We believe that there can be no

reasonable reliance on the part of the

plaintiff when he has failed to comply

with a statutory provision. We thus deny

him relief based on the grounds of

estoppel. This court also believes that

the requirement that the mechanics' lien

provisions be strictly complied with

prevents us as a matter of law from

allowing the plaintiff to raise the

defense of waiver.

Under the facts of this case, we have

no alternative but to grant’ the

defendant's preliminary objections to

strike the lien.

BY THE COURT:

THOMAS J. ESHELMAN, J.

Order of the Court of Common Pleas of

Berks County, Pennsylvania dated April a7,

1987.

"AND NOW, this 27 day of April, 1987,

defendant's preliminary objections are

sustained. The Mechanics' Lien Claim

filed in this action on April 1, 1985 is

hereby stricken.

BY THE COURT,

THOMAS J. ESHELMAN, J.

APPENDIX C

EXCERPTS FROM THE RECORD

Petition for Allowance of Appeal to the

Supreme Court of Pennsylvania, pages 3-4:

"REASONS FOR ALLOWANCE.

The Superior Court's decision is

contrary to this Court's holding in Otto

v. American Mutual Insurance Co., 428 Pa.

202, 393 A.2d 450 (1978), by upholding the

lower Court's dismissal of the Plaintiff's

Complaint without leave to amend in order

to permit the Plaintiff to plead and prove

laches, waiver or estoppel.

The effect of the lower Court's

decision was to dismiss the Plaintiff out

of Court on a technicality without a

hearing, and it leaves the Plaintiff

without a remedy even though it admittedly

furnished the materials for which the

mechanic's lien was filed, and the

Defendant had the benefit of the

materials. In addition, the Defendant had

actual notice of the Plaintiff's intent

to file a mechanic's lien, the purpose of

which was to alert the Defendant to set

aside monies to pay for the materials and

withhold the monies from the general

contractor which was in bankruptcy. See

Thirsk v. Evans, 211 Pa. 239, 245, 60

A.726 (1905).

"APPLICATION FOR REARGUMENT:

(To the Superior Court of

Pennsylvania), page 1:

In a Memorandum Opinion and Judgment

filed August 15, 1988, the three-judge

panel of the Superior Court (Rowley,

Wieand, and Montemuro, JJ.) affirmed the

Order of the Berks County Court of Common

Pleas which had ordered the Plaintiff's

mechanic's lien stricken for failure to

file an affidavit of service.

In sO doing, the Court has

misapprehended the significance of the

fact of record that the Plaintiff was a

subcontractor, which fact is material to

the outcome of the case.

The effect of the decision is to

dismiss the Plaintiff out of Court on a

technicality without a hearing, and it

leaves the Plaintiff without a remedy even

though it admittedly furnished the

materials for which the mechanic's lien

was filed, and the Defendant had the

benefit of the materials. In addition,

the Defendant had actual notice of the

Plaintiff's intent to file a mechanic's

lien, the purpose of which was to alert

the Defendant to set aside monies to pay

for the materials and withhold the monies

from the general contractor which was in

bankruptcy.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.