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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 826

## Text

Se ee

‘> 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
V.

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. )

ii

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

iv

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.
67

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)

LS

15

16

12

12

11

15

10

14

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

vi

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.

10

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

12

- 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

i

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

14

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.

15

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.

16

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.

18

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.

19

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.

(c) Contents of Formal Notice. The

formal notice shall state:

20

(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,

21

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

a2

(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.

* * * * * * * * * *
(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

23

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,

24

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.

25

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

26

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

27

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

28

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.

29

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

39

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"

oa

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).

32

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).

a2

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

34

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

35

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

36

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).

37

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

38

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

39

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

40

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.

41

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

42

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

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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

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the Defendant to set aside monies to pay
for the materials and withhold the monies
from the general contractor which was in

bankruptcy.

45

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1621%3A1. Public record. Not legal advice.