Bertino, R. v. Dougherty, M. ( 2018 )

J-A03005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RUSSELL BERTINO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MICHELLE CLARK DOUGHERTY :
:
Appellee : No. 2150 EDA 2016
Appeal from the Order June 22, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 01793 Feb. Term, 2016
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: Filed July 20, 2018
Appellant, Russell Bertino, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which sustained the preliminary
objections of Appellee, Michelle Clark Dougherty, and dismissed Appellant’s
complaint in this Mechanics’ Lien enforcement action. We affirm.
The trial court fully and correctly sets forth the relevant facts and
procedural history. Therefore, we have no need to restate them.
Appellant raises the following issues for our review:
DID [APPELLEE]’S PAYMENT OF $61,000 INTO COURT AND
DISCHARGE OF [THE] MECHANICS’ LIEN ON JANUARY 29,
2016, PURSUANT TO 49 P.S. [§] 1510 RESULT IN THE
WAIVER OF THE RIGHT TO FILE PRELIMINARY
OBJECTIONS TO [APPELLANT]’S COMPLAINT ON APRIL 22,
2016 FOR IMPROPER SERVICE?
DID [APPELLEE], BY [HER] ATTORNEYS, WAIVE SERVICE
OF [APPELLANT’S] MECHANICS’ LIEN CLAIM BY ITS
ACTIVE PARTICIPATION IN THIS CASE?
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03005-18
DID THE COURT ERR IN [SUSTAINING] [APPELLEE’S]
PRELIMINARY OBJECTIONS DISMISSING [APPELLANT]’S
COMPLAINT WHERE AN AFFIDAVIT OF SERVICE WAS
FILED ON JANUARY 26, 2016, WITHIN 50 DAYS AFTER
FILING OF THE MECHANICS’ LIEN AND WHERE [APPELLEE]
HAD RECEIVED USPS NOTICE ON JANUARY 22, 2016?
DID THE COURT ERR IN FINDING THAT [APPELLANT]’S
AFFIDAVIT OF SERVICE ON JANUARY 26, 2016, DATED
DECEMBER 22, 2015, WAS UNTIMELY REGARDING
SERVICE ATTEMPTS BY MAIL PURSUANT TO PA.R.C.P. 403,
ET SEQ., AND 404?
DID [APPELLANT] SUBSTANTIALLY COMPLY WITH 49 P.S.
[§] 1502 AND PA.R.C.P. 404, WHERE THESE PROVISIONS
ARE INCONSISTENT WITH EACH OTHER AND [APPELLEE]
RECEIVED ACTUAL NOTICE AND ACTIVELY PARTICIPATED
IN THE CLAIM?
(Appellant’s Brief at 6-7).1
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Abbe F.
Fletman, we conclude Appellant’s issues merit no relief. The trial court fully
discusses and properly disposes of the questions presented. (See Trial
Court Opinion, filed July 31, 2017, at 1-7) (finding: (issues 2-4) Appellant’s
December 2015 attempts at service of notice of mechanics’ lien initially via
____________________________________________
1 “Issues not raised in the [trial] court are waived and cannot be raised for
the first time on appeal.” Pa.R.A.P. 302(a). Also, issues not raised in a Rule
1925 concise statement of errors will be deemed waived. Linde v. Linde
Enterprises, Inc., 118 A.3d 422, 430 (Pa.Super. 2015), appeal denied, 634
Pa. 736, 129 A.3d 1243 (2015). Here, Appellant raises for the first time on
appeal his claim that 49 P.S. § 1502 and Pa.R.C.P. 404 are in conflict.
Therefore, to the extent Appellant raises this issue on appeal, it is waived.
See Pa.R.A.P. 302(a); Linde, supra.
-2-
J-A03005-18
regular mail and then via certified mail, return receipt requested,
respectively, were insufficient; certified mail to Appellee was returned
“unclaimed”; Appellant’s initial attempt at service via regular mail was
improper under Pa.R.C.P. 403; Appellant also could not alternatively serve
Appellee via regular mail, because Pa.R.C.P. 403 permits service via regular
mail only after service was attempted via certified mail and is returned as
“refused,” not as “unclaimed”; further, Appellant filed his January 26, 2016
affidavit of service more than 20 days after his December 2015 service
attempts, in violation of Mechanics’ Lien Law, 49 P.S. § 1502(a)(1); (issue
5) doctrine of substantial compliance in mechanics’ lien cases applies only
where notice of mechanics’ lien was properly served; Appellant’s service of
notice of mechanics’ lien upon Appellee was untimely and technically
deficient; even if court had applied doctrine of substantial compliance, there
is no evidence Appellee received notice of mechanics’ lien; (issue 1) trial
court lacked jurisdiction, because Appellant failed to effectuate proper
service on Appellee of notice of mechanics’ lien; that Appellee eventually
became aware of lien does not negate Appellant’s failure to effectuate proper
service of lien). The record supports the trial court’s decision. Accordingly,
we affirm on the basis of the trial court’s opinion.
Order affirmed.
-3-
J-A03005-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2018
-4-
Circulated 06/26/2018 02:26 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL
DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CIVIL
BERTINO
FEBRUARY TERM, 2016
NO. 01793
V,
2150 EDA 2016 411 -:
CLARK-DOUGHERTY
OPINION
This appeal arises from an order this Court entered on June 20, 2016, sustaining the (1..?
preliminary objections of defendant Michelle Clark-Dougherty to plaintiff Russel Bertino's
complaint to enforce a mechanics' lien and striking the mechanics' lien claim in its entirety. Mr.
Bertino filed a timely appeal to the Superior Court on July 7, 2016, arguing that this Court
committed an error of law and/or abused its discretion in sustaining Ms. Clark-Dougherty's
preliminary objections. The Court committed no error nor abused its discretion in entering its
June 20, 2016 order, and respectfully requests that the Superior Court affirm its decision for the
reasons set forth in this opinion,
FACTS
On February 11, 2016, Mr. Bertino filed the underlying complaint (the "Complaint"),
seeking to enforce a mechanics' lien on property located at 219 Moore Street, Philadelphia, PA
19148 ("the Property"). Complaint at ¶ 4. Mr. Bertino alleged that Ms. Clark-Dougherty, the
owner of the Property, hired him to conduct renovations. Id. at113-5. Ms. Clark-Dougherty was
allegedly to pay Mr. Bertino "for general contractor services as well as time and material
furnished by him and his subcontractors plus 2% of profits from the sale of the property when
sold due at the time of settlement." Id. at ¶ 6.
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Mr. Bertino alleged that starting on December 5, 2014, he began work on the Property
and stopped on July 3, 2015. Id. at 118-9. Mr. Bertino claims that. Ms. Clark -Dougherty initially
paid Mr, Bertino through PayPal but subsequently filed claims disputing the costs and
withdrawing all payments. Id at 1110. Mr. Bertino claims that Ms. Clark -Dougherty still owes
him payments for his materials and services. Id. Mr. Bertino further alleges that Ms. Clark -
Dougherty entered into an agreement for sale of the Property with settlement set for December
17, 2015. Id. at 1I 11.
Mr. Bertino filed a mechanics' lien' against the Property on December 16, 2015, after
sending notice of his intent to file the lien on the same day. Id at 1112-13. On January 26, 2016,
Mr. Bertino filed an affidavit of service in the mechanics' lien matter, swearing that Ms. Clark -
Dougherty was served at a California address by regular mail on December 18, ims,, and by
certified mail, return receipt requested on December 21, 2015. See Affidavit of Service dated
January 26, 2016, Bertino v. Clark-Dougherty, December Term, 2015, No. M0004. The affidavit
was signed on December 22, 2015. Id. On February 8, 2016, Mr. Bertino filed another affidavit
of service in the mechanics' lien matter. See Affidavit of Service dated February 8, 2016, Bertino
v. Clark-Dougherty, December Term, -2:0-1 No. M0004, In the second affidavit, Mr. Bertino's
lawyer verified that the certified mail to the California address was returned "unclaimed." Id. Mr.
Bertino's lawyer further verified that a copy of the mechanics' lien was sent to the same
California address on February 8, 2016. Id. Mr. Bertino also claims to have served Ms. Clark -
Dougherty by email as early as December 16, 2615. Mr. Bertino's response to Ms. Clark -
Dougherty' s Preliminary Objections, dated May 12 2016, at 14 (the "Response to Preliminary
Objections").
December Term, 2015 No. M0004.
2
On January 28, 2016, Ms. Clark -Dougherty filed an emergency motion to release the
mechanics' lien, which the Court granted, allowing Ms. Clark -Dougherty to deposit $61,000 into
escrow with the Court and discharge the lien against the Property. See Order of the Honorable
Judge Carpenter, dated July 29, 2016, Bertino v. Clark-Dougherty, December Tenn, 2015, No.
M0004.
On April 22, 2016, Ms. Clark -Dougherty filed preliminary objections to Mr. Bertino's
complaint, arguing that the complaint should be dismissed because Mr. Bertino failed to properly
serve notice of the mechanics' lien. Ms. Clark -Dougherty' s Preliminary Objections, dated April
22, 2016 ("the Preliminary Objections") at ¶ 9. Mr. Bertino responded to the preliminary
objections on May 12, 2016. After review, this Court sustained the preliminary objections and
dismissed the Complaint by order of June 20, 2016. Mr. Bertino timely appealed the order to the
Superior Court and filed a Statement of Errors Complained of on Appeal pursuant to Pa. R.A.P.
1925(b), dated August 1, 2016 ("Appellant's Statement").
DISCUSSION
On appeal, Mr. Bertino argues that the Court committed an error of law and/or abused its
discretion in sustaining the preliminary objections, Appellant's Statement at ¶ 3. Mr. Bertino
argues that Ms. Clark -Dougherty had actual notice of the mechanics' lien within the time frame
required by statute and therefore was not prejudiced. Id. Mr. Bertino further argues that because
he took steps to ensure that Ms. Clark-Dougherty had actual notice of the lien, this Court erred
by not applying the doctrine of substantial compliance with the service provisions of the
Mechanics' Lien Law of 1963, 49 P.S. § 1505 (West 2016). Id. at ¶ 4.
A reviewing court will reverse the trial court's decision to sustain preliminary objections
only when there has been an error of law or an abuse of discretion. Barton v. Lowe 's Home
3
Center, 124 A.3d 349, 354 (Pa. Super. 2015). Under the Mechanics' Lien Law, preliminary
objections are proper to assert lack of conformity with the Mechanics' Lien Law. 49 P.S. § 1505
(West 2016). Preliminary objections that will result in dismissal should be sustained only in
cases that are "clear and free from doubt." Chambers v. Todd Steel Pickling, Inc., 470 A.2d 159,
162 (Pa. Super. 1983)(internal citations omitted).
1. Mr. Bertino Failed to Comply with the Service Requirements
Of the Mechanics' Lien Law of 1963 and the Pennsylvania Rules of Civil Procedure.
The Mechanics' Lien Law of 1963 states that (1) written notice of the lien must be served
within one month after filing, (2) an affidavit of service must be filed within 20 days after
service, and (3) failure to serve the notice or to file the affidavit is grounds for striking the claim.
49 P.S. § 1502(a)(2). The statute further requires that service of the notice of filing be made in
the same matter as a writ of summons in assumpsit or by posting. 49 P.S. § 1502(c).
Because Ms. Clark -Dougherty lives outside the Commonwealth, service upon her is
complete upon delivery of mail "where a copy of the process [is] mailed to the defendant by any
form of mail requiring a receipt signed by the defendant or his authorized agent." Pa. R. Civ. P.
403. If the certified mailing was refused, Mr. Bertino would then be permitted to make service
by ordinary mail. Pa. R. Civ. P. 403(1). Where the mailing is returned as unclaimed, "plaintiff
shall make service by another means pursuant to these rules." Pa, R. Civ. P. 403(2).
Service was not proper in this matter for several reasons. First, since service under Pa.
R. Civ. 403 is not permitted by regular mail, Mr. Bertino's service of Ms. Clark -Dougherty on
December 18, rojs", by regular mail is not proper as a matter of law.
Second, Mr. Bertino was not permitted to alternatively serve Ms. Clark -Dougherty by
regular mail because the certified mailing was returned unclaimed. Pa. R. Civ. P. 403(1) allows
service by first-class mail only if the mailing is refused. ("If the mail is returned with notation by
4
the postal authorities that the defendant refused to accept the mail, the plaintiff shall have the
right of service by mailing a copy to the defendant at the same address by ordinary mail...."
Pa.R.Civ.P. 403)(1)(emphasis added). There has been no such refusal in this case. The certified
mailing of December 21, 2015 was merely returned "unclaimed," and therefore, Mr. Bertino
failed to ever effectuate original service of the mechanics' lien on Ms. Clark -Dougherty.
Furthermore, Mr. Bertino filed his affidavit of service on January 26, 2016, more than 20
days after his service attempts on December 18, 2015 and December 21, 2015, as required by the
Mechanics' Lien Law. 49 P.S. § 1502(a)(1).
For these reasons, the Court did not err in its conclusion that service was defective under
the applicable statute.
2. The Doctrine of Substantial Compliance Is Not Properly Applied in this Case.
The Court further did not err in determining not to apply the doctrine of substantial
compliance in this case. While the Superior Court has applied the doctrine of substantial
compliance in mechanics' lien cases, it has done so only in distinguishable cases when notice
was properly served. See Tesauro v. Baird, 335 A.2d 792 (Pa. Super 1975). In Tesauro, the
plaintiff had properly served a notice of the lien on the defendant in compliance with the
Mechanics' Lien Act, but the notice omitted the term number and the date of filing of the claim.
Id. at 795. The Superior Court held that the plaintiff had substantially complied with the
Mechanics' Lien Act when the notice is "sufficiently definite to enable the owner to ascertain the
amount of the lien claimed, its date and the nature and amount of the labor and material out of
which it arises." Id.
The facts of this case are more similar to Regency Investments Inc. v. Inlander Ltd., 855
A.2d 75 (Pa. Super. 2004). In Regency, the plaintiff effectuated personal service upon the
5
defendant in accordance with Pa. R. Civ. P. 400, but it was 34 days after the mechanics' lien was
initially filed. Id. at 77-78. The Superior Court held that substantial compliance does not apply
where notice was served, but it was untimely: "Here, the timeliness of service was at issue. The
defect was directly violative of the statutory time period for the service of notice of the claim.
Thus, the doctrine of compliance is inapposite." Id. at 80.
As in Regency, the service in this case was defective as untimely in direct contravention
of the Mechanics' Lien Act. Mr. Bertino's service was not only untimely, but it also was
technically deficient because it was not made by the proper method. Even if this Court had
applied the doctrine of substantial compliance, there is no evidence that Ms. Clark -Dougherty
ever received notice "sufficiently definite to enable the owner to ascertain the amount of the lien
claimed, its date and the nature and amount of the labor and material out of which it arises."
Tesauro, 335 A.2d at 795.
3. Ms. Clark-Dougherty's Actual Notice of the Lien is Irrelevant,
Mr. Bertino finally argues that Ms. Clark -Dougherty had actual notice of the mechanics'
lien evidenced by the filing of Ms. Clark-Dougherty's January 28, 2016 emergency motion to
discharge the mechanics' lien upon payment into escrow. In his response to Ms. Clark -
Dougherty' s preliminary objections, Mr. Bertino does not cite any precedent beyond Tesauro,
335 A.2d 792, to stand for the proposition that actual, untimely notice of the lien excuses the
requirements of 49 P.S. § 1502(a)(2). Tesauro, however, addresses the issue of substantial
compliance with the Mechanics' Lien Law and does not address a situation where notice was
never perfected but defendant eventually became aware of the existence of the lien. Appellant's
Statement at ¶ 3-4.
6
The Pennsylvania Supreme Court has held that rules regarding the service of process
"must be strictly followed, and jurisdiction of the court over the person of the defendant is
dependent on proper service being made." Sharp v. Valley Forge Medical Center and Heart
Hospital, Inc., 221 A.2d 185, 187 (Pa. 1966). Improper service "is not merely a procedural defect
which can be ignored when defendant, by whatever means, becomes aware that an action has
been commenced against him or her." Frycklund v. Way, 599 A.2d 1332, 1334 (Pa. Super. 1991).
Since Mr. Bertino never properly effectuated service upon Ms. Clark -Dougherty under
the Mechanics' Lien Act and the Pennsylvania Rules of Civil Procedure, this Court was divested
of jurisdiction over the underlying mechanics' lien. The fact that Ms. Clark -Dougherty
eventually became aware of the lien does not negate that she was never properly served.
CONCLUSION
For the reasons stated above, this Court respectfully requests that the Superior Court
affirm its decision to sustain defendant's preliminary objections and strike the underlying
mechanics' lien.
BY THE COURT:
ABBE F. FLETMAN, JUDGE
Dated: July 31, 2017
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