Forbes Excavating v. Weitsman New Castle Realty ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FORBES EXCAVATING, L.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
WEITSMAN NEW CASTLE REALTY, : No. 1005 WDA 2017
LLC :
Appeal from the Order Entered June 27, 2017
In the Court of Common Pleas of Lawrence County Civil Division at No(s):
51197 OF 2016 MLD
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED MAY 08, 2018
Appellant, Forbes Excavating, L.P., appeals from the order entered on
June 27, 2017. We affirm.
On October 28, 2016, Appellant filed a Mechanics’ Lien Claim
(hereinafter “the Claim”) against property owned by Weitsman New Castle
Realty, LLC (hereinafter “Weitsman Realty”), at 526 South Jefferson Street,
New Castle, Pennsylvania, 16101. Within the Claim, Appellant averred that
Weitsman Realty contracted with FAHS Construction Group, Inc. (hereinafter
“the Contractor”) to perform certain improvements to the property; the
Contractor, in turn, subcontracted some of the work to Appellant. See
Appellant’s Mechanics’ Lien Claim, 10/28/16, at ¶¶ 1-5. As Appellant
averred, it completed its work under the subcontract on April 29, 2016;
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however, Appellant is still owed $581,840.39, plus interest and costs, for its
work improving Weitsman Realty’s property. Id. at ¶¶ 3 and 6.
On November 15, 2016, Deputy Sheriff Marcia Sigler (hereinafter
“Sheriff Sigler”) swore an affidavit, declaring that she did not serve the
notice of the Claim upon Weitsman Realty and that she was returning the
notice of the Claim “not found.” Sheriff Sigler averred:
[Sheriff Sigler], . . . who being duly sworn according to law,
says, that [she] made a diligent search and inquiry for the
within named Defendant[, Weitsman Realty] at 526 South
Jefferson St[.,] New Castle, PA 16101[,] but was unable to
locate Them, within the limits of Lawrence County,
Pennsylvania nor to ascertain the Defendant[’s] present
whereabouts, and I do therefore return the within
Mechanics Lien, NOT FOUND.
Reason:
The above address is Ben Weitsman of New Castle, per Ron
Saley, general manager there. [Weitsman Realty] is not
known there[.]
Sheriff’s Affidavit of Failure to Serve Notice, dated 11/15/16, at 1 (some
internal capitalization omitted) (underlining in original).
On January 10, 2017, Sheriff Sigler swore an affidavit, which declared
that she served Weitsman Realty with notice of the Claim. The affidavit
stated:
[Sheriff Sigler] served a copy of the Mechanics Lien upon
defendant [Weitsman Realty] on 5th January 2017 at 9:34
[a.m.] at 526 South Jefferson St[.,] New Castle, PA
16101[,] by handing to Christy Little, Office Manager[.]
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Sheriff’s Affidavit of Service of Notice, filed 1/10/17, at 1 (some internal
capitalization omitted) (underlining in original).
On January 13, 2017, Appellant filed its complaint to obtain judgment
on the Claim. Weitsman Realty responded to the complaint by filing
preliminary objections in the nature of a motion to strike, for failure of the
pleading to conform to the Mechanics’ Lien Law. Specifically, Weitsman
Realty claimed Appellant’s complaint must be stricken because: 1) Appellant
failed to timely serve Weitsman Realty with written notice of the Claim,
pursuant to 49 P.S. § 1502(a)(2), and 2) when Appellant purportedly served
Weitsman Realty with an untimely notice of the Claim on January 5, 2017, it
handed the Claim to an individual who was not authorized to accept service.
Weitsman Realty’s Preliminary Objections, 3/2/17, at 2.
Appellant filed an answer to the preliminary objections and
acknowledged that, in accordance with 49 P.S. § 1502(a)(2), it was required
to serve Weitsman Realty with written notice of its Claim within one month
after the Claim was filed. Appellant’s Answer to Preliminary Objections,
3/23/17, at ¶ 4; see also 49 P.S. § 1502(a)(2). Thus, Appellant admitted,
since the Claim was filed on October 28, 2016, “notice of the filing of the
[Claim] was required to be served upon [Weitsman Realty] by November 28,
2016.” Appellant’s Answer to Preliminary Objections, 3/23/17, at ¶ 4.
Notwithstanding this fact – and notwithstanding the fact that Appellant did
not formally serve Weitsman Realty with notice of the Claim until January 5,
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2017 – Appellant maintained that the preliminary objections must be
overruled.
First, Appellant contended, it timely served Weitsman Realty with
notice of the Claim on November 15, 2016. Id. As to this argument,
Appellant claimed that, on November 15, 2016, Sheriff Sigler attempted to
serve notice of the Claim upon Ron Saley at 526 South Jefferson Street;
however, Mr. Saley falsely told Sheriff Sigler that Weitsman Realty was “not
known” at the address. Id. at ¶ 4A. According to Appellant, Weitsman
Realty actually did own 526 South Jefferson Street. Id. Appellant further
claimed that Weitsman Realty’s “refusal to accept service on November 15,
2016 constituted valid service under Pennsylvania law” and, thus, it properly
served Weitsman Realty with timely notice of the Claim on November 15,
2016. Id.
Second, Appellant claimed, the preliminary objections must be
overruled because it “substantially complied” with the service requirements
of the Mechanics’ Lien Law. Id. at ¶ 7. According to Appellant:
Here, [Weitsman Realty] clearly had notice of the filing of
the [Claim] as it filed preliminary objections to the same.
Moreover, application of the doctrine of substantial
compliance is particularly appropriate, where, as in the
present case, [Weitsman Realty] has attempted to evade
service by [its] refusal to accept service from the sheriff.
Appellant’s Brief in Opposition to Preliminary Objections, 6/5/17, at 6.
Following oral argument, the trial court sustained Weitsman Realty’s
preliminary objections and struck Appellant’s complaint for failure to timely
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serve Weitsman Realty with notice of the Claim. Trial Court Order, 6/27/17,
at 4. Appellant filed a timely notice of appeal. Appellant raises two claims
on appeal:
1. Did [Weitsman Realty’s] refusal to accept service of the
[Claim] on November 15, 2016 constitute valid service
under Pennsylvania law?
2. Did [Appellant’s] substantial compliance with the service
requirements require a denial of the preliminary objection,
particularly in light of [Weitsman Realty’s] evasion of
service?
Appellant’s Brief at 9.
We have held:
This Court will reverse the trial court’s decision regarding
preliminary objections only where there has been an error
of law or abuse of discretion. When sustaining the trial
court’s ruling will result in the denial of [a mechanics’ lien]
claim or a dismissal of suit, preliminary objections will be
sustained only where the case is free and clear of doubt.
Regency Invs., Inc. v. Inlander Ltd., 855 A.2d 75, 77 (Pa. Super. 2004)
(internal quotations and citations omitted), quoting Clemleddy Constr.,
Inc. v. Yorston, 810 A.2d 693, 695 (Pa. Super. 2002).
Section 1502 of the Mechanics’ Lien Law is entitled “[f]iling and notice
of filing of claim.” It declares:
(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
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(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.
...
(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.
49 P.S. § 1502.
Therefore, as is relevant to the current appeal, for a claimant to
perfect its lien under the Mechanics’ Lien Law, the claimant must: 1) file its
claim within six months of the date it completed its work; 2) serve the
owner with written notice of the claim within one month after it filed its
claim; and, 3) file an affidavit of service of notice, or the acceptance of
service, within 20 days after service. Id.
As to the manner of service, this Court has explained: “Section
1502(c)'s requirement of personal service to ‘be made by an adult in the
same manner as a writ of summons in assumpsit’ [means] that the notice of
filing of claim in a mechanics' lien case must be served by the sheriff.”
Clemleddy Constr. Inc., 810 A.2d at 697.
Moreover, with respect to service of the notice of claim, this Court
held:
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Service requirements under Pennsylvania's Mechanics' Lien
law are strictly construed such that a complaint will be
stricken if the statutory service requirements are not met;
the doctrine of substantial compliance refers only to the
“form” of the notice. . . . [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., Inc., 855 A.2d at 77 and 77 n.1.
In the case at bar, the trial court sustained Weitsman Realty’s
preliminary objection in the nature of a motion to strike for failure of
Appellant’s complaint to conform to law. Specifically, the trial court ruled,
under 49 P.S. § 1502(a)(2), Appellant was required to serve Weitsman
Realty with written notice of the Claim within one month of the date the
Claim was filed. Thus, since Appellant filed the Claim on October 28, 2016,
Appellant was required to serve Weitsman Realty with written notice of the
claim by November 28, 2016. The trial court found that Appellant did not
serve Weitsman Realty with notice of the Claim until January 7, 2017; thus,
the trial court held, Appellant’s complaint to obtain judgment on the Claim
must be stricken, as the pleading failed to conform to the Mechanics’ Lien
Law. See Trial Court Order, 6/27/17, at 1-4.
On appeal, Appellant first argues that the trial court erred because
Weitsman Realty’s “refusal to accept service on November 15, 2016
constituted valid service under Pennsylvania law.” Appellant’s Brief at 15.
This claim fails.
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Appellant’s first claim on appeal arises out of the fact that, on
November 15, 2016, Sheriff Sigler attempted to serve notice of the Claim
upon Weitsman Realty by handing the notice to an individual named Ron
Saley, at Weitsman Realty’s 526 South Jefferson Street property. See
Appellant’s Answer to Preliminary Objections, 3/23/17, at ¶ 4; Appellant’s
Brief at 15. However, Mr. Saley told Sheriff Sigler that Weitsman Realty was
“not known” at the address. Appellant’s Brief at 15. Therefore, Sheriff
Sigler did not serve the notice upon Mr. Saley and Sheriff Sigler later swore
an affidavit, declaring that she returned the notice “not found.” Sheriff’s
Affidavit of Failure to Serve Notice, dated 11/15/16, at 1.
According to Appellant, Weitsman Realty actually did own 526 South
Jefferson Street. See Appellant’s Brief at 15. Appellant contends that Mr.
Saley’s declaration to Sheriff Sigler was false and that it amounted to an
attempt to evade service on behalf of Weitsman Realty. Id. Appellant
further contends that Mr. Saley’s “refusal to accept service [cannot]
invalidate [Sheriff Sigler’s] otherwise effective service of process.” Id.,
citing Commonwealth ex rel. McKinney v. McKinney, 381 A.2d 453 (Pa.
1977) (“[s]ervice cannot be negated by refusing to accept papers, and
whether the refusal is by the defendant or a representative is immaterial”).
Therefore, according to Appellant, Weitsman Realty was constructively
served with notice of the Claim on November 15, 2016, and Appellant’s
service was thus proper and timely under Section 1502(a)(2). Appellant’s
Brief at 15-17.
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This claim immediately fails because, even if the Mechanics’ Lien Law
permitted the type of constructive service Appellant advocates, Appellant did
not file “an affidavit of service of notice, or the acceptance of service” within
20 days of November 15, 2016. See 49 P.S. § 1502(a)(2). To be sure,
Sheriff Sigler executed an affidavit on November 15, 2016, which declared
that she did not serve the notice of the Claim upon Weitsman Realty and
that she was returning the Claim “not found.” Sheriff’s Affidavit of Failure to
Serve Notice, dated 11/15/16, at 1. Therefore, even if the Mechanics’ Lien
Law allowed for the type of constructive service Appellant requests,
Appellant still failed to strictly comply with the service requirements of
Section 1502, as Appellant failed to file “[a]n affidavit of service of notice, or
the acceptance of service, . . . within twenty (20) days after service setting
forth the date and manner of service.” 49 P.S. § 1502(a)(2). As such,
Appellant cannot obtain relief on its claim. See Commonwealth v.
Cassidy, 462 A.2d 270, 272 (Pa. Super. 1983) (holding that the Superior
Court “will affirm the trial court’s decision if the result is correct on any
ground, without regard to the grounds on which the trial court relied”).
Appellant’s claim also fails because there is no evidence that Weitsman
Realty “refused” the service. First, Sheriff Sigler’s affidavit declares that the
notice of the Claim was returned “not found;” the affidavit does not declare
that service was “refused.” Sheriff’s Affidavit of Failure to Serve Notice,
dated 11/15/16, at 1. Second, no evidentiary hearing occurred in this case
and, therefore, there is no evidence as to whether Mr. Saley is an employee
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of Weitsman Realty or as to why Mr. Saley told Sheriff Sigler Weitsman
Realty was “not known” at 526 South Jefferson Street. On appeal, Appellant
does not argue that the trial court erred when it failed to hold an evidentiary
hearing on the preliminary objections or that the trial court erred in
sustaining the preliminary objections without holding such a hearing. See
Appellant’s Brief at 9; see also Holt Hauling & Warehousing Sys., Inc.
v. Aronow Roofing Co., 454 A.2d 1131, 1133 (Pa. Super. 1983) (“[i]f an
issue of fact is raised by the preliminary objections, the court shall take
evidence by depositions or otherwise. In such a situation the court may not
reach a determination based upon its view of the controverted facts, but
must resolve the dispute by receiving evidence thereon through
interrogatories, depositions or an evidentiary hearing”) (internal quotations
and citations omitted). Rather, Appellant simply claims that we should
assume that Mr. Saley’s declaration to Sheriff Sigler constituted an
intentional “refusal” to accept service on behalf of Weitsman Realty. See
Appellant’s Brief at 15-17; see also Kucher v. Fisher, 167 F.R.D. 397, 398
(E.D.Pa. 1996) (holding that, under the Pennsylvania Rules of Civil
Procedure, a “refusal” to accept service requires an “intentional” act). We
cannot make these assumptions. As such, Appellant’s claim fails for this
second, independent reason.
Finally, we note that the plain language of the Mechanics’ Lien Law
permits constructive service “by posting upon a conspicuous public part of
the improvement.” 49 P.S. § 1502(c). In this case, after Sheriff Sigler
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averred that she was returning the notice “not found,” Appellant was
specifically permitted to effect service “by posting upon a conspicuous public
part of the improvement.” Appellant simply failed to avail itself of this
remedy.
For Appellant’s second claim on appeal, Appellant contends that the
trial court erred in sustaining Weitsman Realty’s preliminary objections
because Appellant “substantially complied” with the service requirements of
the Mechanics’ Lien Law. Appellant’s Brief at 17. The claim is meritless.
As this Court held in Regency Investments:
Service requirements under Pennsylvania's
Mechanics' Lien law are strictly construed such that a
complaint will be stricken if the statutory service
requirements are not met; the doctrine of substantial
compliance refers only to the “form” of the notice. . . .
[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., Inc., 855 A.2d at 77 and 77 n.1 (emphasis added).
Thus, contrary to Appellant’s claim on appeal, this Court specifically
held in Regency Investments that the service requirements under the
Mechanics’ Lien Law are not subject to the doctrine of substantial
compliance – and that they must be strictly construed. Appellant’s claim to
the contrary is thus meritless, as it is in direct contravention of our binding
precedent.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2018
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