Seniuk, Ny v. Birney, C. ( 2016 )

J-A12039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NY SENIUK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CLAIRE BIRNEY,
Appellee No. 1994 EDA 2015
Appeal from the Order Entered June 16, 2015
In the Court of Common Pleas of Chester County
Civil Division at No(s): No. 2009-08887-MJ
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 11, 2016
This is an appeal from the order entered in the Court of Common Pleas
of Chester County striking Ny Seniuk’s (“Appellant”) mechanics’ lien action
for failure to timely prosecute under 49 P.S. §1701(d), infra. We affirm.
The trial court aptly summarizes the factual and procedural history of
the case sub judice as follows:
On August 7, 2009, Plaintiff [hereinafter “Appellant”] initiated
this matter by filing a mechanics’ lien claim in the amount [of]
$15,837.00.1 The mechanics’ lien was served upon Defendant
[hereinafter “Appellee”] on the same day, as reflected by the
Sheriff’s Affidavit of Service filed on August 12, 2009. In
response to a Rule to File a Complaint, Appellant filed a
Mechanics’ Lien Complaint setting forth three causes of action,
breach of oral contract, quantum meruit and book account. The
Complaint was filed under the above-captioned mechanics’ lien
term number. On September 30, 2009, Appellee filed an Answer
to the Complaint setting forth New Matter and a Counterclaim.
On October 20, 2009, Appellant filed a reply to Appellee’s New
Matter and Counterclaim and Asserted additional New Matter.2
*Former Justice specially assigned to the Superior Court.
J-A12039-16
1
The mechanics’ lien relates to the property located
at 584 Hannum Mill Road, P.O. Box 41, Chatham,
Chester County, Pennsylvania, 19318
2
Appellee did not answer new New Matter in the
October 20, 2009 filing by Appellant.
Appellant took no further action to have the case listed for trial
until November 27, 2013. On November 27, 2013, Appellant
filed a Praecipe for Determination, as required by local rule. On
June 27, 2014, Appellant provided Court Administration with a
copy of Praecipe to List for Trial which was previously filed on
November 27, 2013.[] Subsequent to receiving a copy of
Appellant’s Praecipe to List for Trial, the case was placed on the
next civil trial list before the undersigned.
On August 11, 2014, Appellee filed a Motion to Strike Plaintiff’s
Mechanics’ Lien Claim for Failure to Comply with 49 Pa.C.S.A. §
1701(d) (hereinafter, the “Motion”) and a memorandum of law in
support thereof. On August 28, 2014, Appellant filed a Motion to
Strike Defendant’s Motion to Strike Mechanics’ Lien[] and Petition
to Confirm Discovery Closed and Defendant’s Objection to Trial
Listing as Terminated with All Such Intervening Periods Being
Attributed to Defendant’s Delay.5 On September 11, 2014,
Appellee filed a Reply to Plaintiff’s Motion to Strike Appellee’s
Motion to Strike. . . . On October 31, 2014, Appellant filed a
Motion to Reduce Time Calculations Under 49 P.S. § 1701(e) (if
Applicable) Due to Periods of Administrative Delay and for Relief
Nunc Pro Tunc.
5
Appellant asserts that Appellee’s counsel refused to
agree to certify the case as trial ready and confirm
that discovery was completed, and due to defense
counsel’s inaction the time period from April 2011 to
November 27, 2013 should be excluded from the five
(5) year time period within which a judgment on a
mechanics’ lien must be entered. Although
Appellant’s counsel believes that it is “required and is
customary in Chester County” for the parties to
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J-A12039-16
agree to certify the case as trial ready; we disagree.
The language contained in C.C.R.C.P. 249.3 is clear
and unambiguous. Nothing in this rule requires a
defendant’s consent to have a matter listed for trial.
Furthermore, even assuming Appellee did not
consent to a trial listing, that refusal did not prevent
Appellant from properly listing the matter for trial.
Accordingly, a review of the docket shows that
Appellee did not cause any delay in the prosecution
of this case.
By Order entered on June 15, 2015, the mechanics’ lien action
was stricken for Appellant’s failure to timely prosecute. On June
29, 2015, Appellant timely appealed the Court’s June 15, 2015
Order in response to which the [trial court] directed Appellant to
file of record and serve upon the [trial court] a Concise
Statement. On July 21, 2015, Appellant filed a timely Concise
Statement.
Trial Court Opinion, filed Sept. 4, 2015, at 1-2.
Appellant presents the following questions for our review:
A. Whether Judge Mahon erred in strictly construing the
Mechanic’s Lien Law by failing to take into consideration: 1)
the fact that the parties had treated the claims of the
Appellant as a claim under 49 P.S. § 1702; 2) that the Law
had been reenacted in 1963; and, 3) that delaying tactics by
Appellee’s counsel (and a further eight (8) month delay by
the Court) should have resulted in a determination that the
case should have moved forward to trial under Section 1702
of the Law or a recalculation of the time period to allow the
case to go to trial?
B. Whether Judge Mahon erroneously failed to take into
consideration that equitable arguments should be permitted—
especially where the Appellee has filed an answer to the
complaint, raised a counterclaim seeking significant damages
(greater than the initial claim) and has generally treated this
as a separate civil action not subject to any five year time
limitation—up until the time that in a “gotcha” move—when
Appellee asserted that the case was to be dismissed because
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J-A12039-16
the action was filed at the same term and number as the
mechanic’s lien and five (5) years had passed?
C. Whether Judge Mahon’s ruling erred in failing to consider the
argument for nunc pro tunc relief whereby the mechanic’s lien
could be stricken but the civil action could be filed under a
different term and number as of the date that it was initially
filed under the mechanic’s lien claim number thereby allowing
the case to proceed to trial?
D. Whether Judge Mahon’s ruling erroneously envisions no
procedure to equitably address delays in trial or deceptive
practices thereby leading to the sort of gamesmanship that
has taken place in this case and which is contrary to basic
tenets of civility in the bar and fundamental fairness?
Appellant’s brief at 4.
After careful review of the record, party briefs, and the trial court’s
Pa.R.A.P. 1925(a) opinion, we discern no error with the court’s reliance on
Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott’s
Development Company, 90 A.3d 682 (Pa. 2014) (rejecting liberal reading
of Mechanic’s Lien Law championing “spirit” of statute in favor of strict
construction where statutory language at issue clearly evinced legislative
intent) to resolve the dispositive issue in this matter.1 Specifically, Section
1701(d) of the Mechanics’ Lien Law provides:
____________________________________________
1
In this regard, we are guided by the governing standards of review
articulated in Bricklayers:
As this matter implicates an issue of statutory interpretation, our
task is to determine the will of the General Assembly using the
(Footnote Continued Next Page)
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J-A12039-16
A verdict must be recovered or judgment entered within five (5)
years from the date of filing of the claim. Final judgment must
be entered on a verdict within five (5) years. If a claim is not
prosecuted to verdict or judgment, as provided above, the claim
shall be wholly lost. Provided, however, That in either case, if a
complaint has been or shall be filed in the cause and if the cause
has been or shall be at issue, all time theretofore or thereafter
consumed in the presentation and disposition of all motions and
petitions of defendants, substituted defendants and intervenors
in the cause, and in any appeal or appeals from any order in the
cause, from the date of perfection of such appeal to the date of
return of the certiorari from the appellate court to the court of
common pleas, shall be excluded in the computation of the five
(5) year period herein provided.
49 P.S. § 1701(d).
As noted, supra, verdict was not recovered nor was judgment entered
within five years of the time in which Appellant filed his claim. Moreover, for
reasons expressed in the trial court’s opinion, we reject Appellant’s
_______________________
(Footnote Continued)
language of the statute as our primary guide.” Osprey
Portfolio, LLC v. Izett, [620] Pa. [274, 281], 67 A.3d 749, 754
(2013) (internal quotation marks omitted). See generally 1
Pa.C.S. § 1928(a) (“The object of all interpretation and
construction of statutes is to ascertain and effectuate the
intention of the General Assembly.”). When the words of a
statute are clear and precise, reviewing courts may not disregard
those words under the pretext of pursuing the “spirit” of the
enactment. See id. § 1921(b). Where, however, there is a
conflict or ambiguity, we may resort to the tools of statutory
construction. See Oliver v. City of Pittsburgh, 608 Pa. 386,
394, 11 A.3d 960, 965 (2011). In so doing, we keep in mind
that such tools are used as an aid in uncovering the intent of the
Legislature, which is always the objective in matters of statutory
construction. See Commonwealth v. Baker, 547 Pa. 214,
221, 690 A.2d 164, 167 (1997).
Id., at 39–40, 90 A.3d at 690 (footnote omitted).
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J-A12039-16
argument that the court’s computation erroneously failed to exclude delay
allegedly attributable to both Appellee and the trial court; in fact, no such
delay is apparent in the record. Accordingly, we adopt the comprehensive
and cogent analysis provided in the trial court’s Pa.R.A.P. 1925(a) opinion in
affirming the order entered below. Moreover, we direct the parties to attach
a copy of the trial court’s opinion in the event of further proceedings.
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2016
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Circulated 07/20/2016 09:40 AM
EXHIBIT
I c.. 594 A.2d at
73 9 (Pa. Super. 1991 ). Moreover, in the context of this particular case, even a liberal application
of the rules of civil procedure cannot save Plaintiff's mechanics' lien claim. Plaintiff's appeal to
discretionary aspects afforded by the rules of civil procedure cannot be used to circumvent the
clear language of the Mechanics' Lien Law.
Plaintiff's mechanics' lien action was stricken for failure to prosecute based on the plain
language of section 1701 (d). See Order, 6/15/15. The language of the Mechanics' Lien Law is
clear and unambiguous and, as such, must be construed pursuant to common usage. See
Friedman v. Grand Cent. Sanitation. Inc., 571 A.2d 373, 376 (Pa. 1990); Martin Stone Quarries,
Inc. v. Robert M. Koffel Builders. 786 A.2d 998, 1002 (Pa. Super. 2001) (reasoning that
3 'ft
Mechanics' Lien Law is a creature of statute in derogation of the common law, and any questions
of interpretation should be resolved in favor of a strict, narrow construction. To effectuate a valid
lien claim, the contractor or subcontractor must be in strict compliance with the requirements of
the Mechanics' Lien Law).
The time limitations applicable to the prosecution of mechanics' liens are set forth in section
170l(d) of the Mechanics' Lien Law of 1963 as follows:
A verdict must be recovered or judgment entered within five (5)
years from the date of filing of the claim. Final judgment must be
entered on a verdict within five (5) years. If a claim is not
prosecuted to verdict or judgment, as provided above, the claim
shall be wholly lost.
See 49 Pa.C.S.A § l 70l(d) (emphasis added).
It is well settled that strict compliance with the Mechanics' Lien Law is necessary in order to
effect a valid claim. The right to file a mechanic's lien, as has been uniformly held by all the
courts, is of statutory origin. 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 this statute
conferring the right. J.H. Hommer Lumber Co. v. Dively, 584 A.2d 985 (Pa. Super. 1990) citing
O'Kane v. Murrav, 97 A 94 (Pa. 1916); Brann & Stuart Co. v. Consolidated Sun Ray Inc .. 253
A.2d 105 (Pa. 1969), cert. denied, 396 U.S. 840, 90 S. Ct. 102, 24 L. Ed. 2d 91 (1970); McCarthy
v. Reese, 215 A.2d 257 (Pa. 1965).
Here, the words of the statute are clear and unambiguous. The General Assembly used the words
"shall" and "must" when enacting section 170l(d). The mandatory nature of these words
prevents judicial discretion or the consideration of equitable arguments in the prosecution of the
mechanics' lien claim. Plaintiffs argument undoubtedly fails to consider the plain language of
section 1701 ( d), which dismisses a mechanics' lien claim if a judgment or a verdict is not
obtained within five years of the filing of the claim. Here, the record reflects that Plaintiff filed
the mechanics' lien claim on August 7, 2009. Thus, the claim had to be reduced to verdict or
judgment by August 7, 2014, to comport with law.
A further review of the record establishes that the mechanics' lien claim was not reduced to
judgment or verdict within the requisite five (5) year period. Although Plaintiff claims that the
"spirit" of the statute should be applied and his client given a remedy; the Court will not
disregard the clear and unambiguous language of the Act in pursuit of the "spirit" of the law.
Bricklayers ofW. Pa. Combined funds. Inc., v. Scott's Dev. Co., 90 A.3d 682 (Pa. 2014). Based
on the plain language of the Mechanics' Lien Law, it would have been an error of law and an
abuse of discretion for the Court to permit Plaintiff to prosecute the action more than five years
after it was commenced. Consequently, Plaintiffs argument to the contrary is devoid of merit.
Plaintiffs next contends that the Court failed to consider the delay tactics of Defendant and the
administrative delay by the Court. Concise Statement, 7/21/15. However, this argument affords
Plaintiff no relief.
4 Lf;)_
Section 1701 (d) of the Mechanics' Lien Law of 1963 explicitly sets forth the limited exceptions
to the five (5) year time bar as follows:
Provided, however, that in either case, if a complaint has
been or shall be filed in the cause and if the cause has been
or shall be at issue, all time theretofore or thereafter
consumed in the presentation and disposition of all
motions and petitions of defendants, substituted
defendants and intervenors in the cause, and in any appeal
or appeals from any order in the cause, from the date of
perfection of such appeal to the date of return of the
certiorari from the appellate court to the court of common
pleas, shall be excluded in the computation of the five (5)
year period herein provided.
See 49 Pa.C.S.A § 1701(d) (emphasis added).
In the present case, we do not find that Defendant is responsible for the delay in the prosecution
of the mechanics' lien claim. The plain language of the mechanics' lien statute excludes from the
five (5) year rule any delay that is attributable to defendant's filing of motions and petitions or
time associated with appeals. See 49 Pa.C.S.A § 1701(d). Here, Defendant filed her first motion
on August 11, 2014. See Def. 's Mot. to Strike PL 's Mechanics Lien Claim for Failure to
Comply with 49 Pa.C.S.A § 170l(d), 8/11/14. Logic dictates that any delay caused by the filing
of this motion is irrelevant to our analysis. Plaintiff had until August 7, 2014 to timely prosecute
the mechanics' lien claim and Defendant did not file the Motion until August 11, 2014.
Plaintiffs five (5) years to timely prosecute the claim had already expired as of the date that
Defendant's filed the Motion. Furthermore, the instant appeal, commenced by Plaintiff, is the
only appeal filed in this case. Accordingly, no delay in prosecuting the mechanics' lien claim
cann be imputed to Defendant.
Plaintiff next asserts that the Court erred by dismissing the mechanics' lien action because a
breakdown in the judicial system delayed the prosecution of the claim. However, Plaintiffs
equitable argument affords him no relief
Chester County Rule of Civil Procedure ("C.C.R.C.P.") Number 200 is crucial to this case and
states in pertinent part:
Assignment of Court Business
All civil litigation in this court shall be divided into the following
categories:
Category A shall consist of all civil matters which include matters
filed for jury trial, non-jury trial, equity matters, and cases
appealed from arbitration.
5 '-1-3
Category B shall consist of miscellaneous matters such as name
change petitions, license suspension appeals, mechanics lien
matters, zoning appeals and other matters requiring disposition by
a judge.
Category C shall consist of compulsory arbitrations.
See C.C.R.C.P. No. 200 (emphasis added).
Local rule 249.3 is also dispositive in this matter because it explains the Court's case listing
policy. Rule 249.3 states in pertinent part:
TRIAL READfNESS
(a) A category A matter shall be presumptively deemed ready for
trial twelve (12) months from the date of the initiation of the suit,
which is the earliest date on which the case may be tried for
purposes of Pa.R.C.P. No. 212.l(a). A category C matter
( compulsory arbitrations) in which there has been an appeal from
the award of arbitrators shall be presumptively deemed ready for
trial two (2) months from the date of the filing of the appeal. Such
matters shall immediately thereafter be placed on the trial list of
the judge to whom the case is assigned, unless prior thereto an
order has been entered deferring the placement on the trial list until
a later date. Such order may be entered by the court on its own
motion or pursuant to the procedures set forth in paragraph (b)
below.
( c) At any time prior to placement of a case on the trial list
pursuant to the procedures set forth above, the court, either on its
own motion or upon agreement of the parties or upon
application of any party, may determine that any matter is ready
for trial, in which event the court shall file a trial readiness order
and the court administrator shall then notify all parties that the case
has been placed on the trial list.
See C.C.R.C.P. No. 249.3 (emphasis added).
Here, it is disingenuous for Plaintiff to now claim that the Court caused the delay when Plaintiff
failed to comply with the local rules. Specifically, Plaintiff did not take the proper steps to have
the matter listed for trial. Because mechanics' lien cases (Category B cases) are not subject to the
Court's automatic one- year trial listing policy; it is the responsibility of the parties to notify
Court Administration when the case is ripe for trial. It is undisputed that Plaintiff filed the
mechanics' lien on August 7, 2009, but took no further action to have it listed for trial until
November 27, 2013. On November 27, 2013, Plaintiff filed a Praecipe to List the Case for Trial
but did not serve it upon Court Administration. Moreover, Plaintiff failed to file a Praecipe for
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Determination as required by local rule. See C.C.R.C.P. 206.6 (stating, "to have any matter
submitted to the Court for a decision, a party shall file with the Prothonotary a Praecipe for
Determination.") That praecipe would cause the Prothonotary to transmit the request for a trial
listing to the Court. Because Plaintiff did not file a certificate of trial readiness along with the
necessary Praecipe for Determination, the Court was not alerted to Plaintiffs application for a
trial date and could not issue a trial readiness order and assign a trial date. Given that Plaintiff
failed to comport with the rules of procedure, any administrative delay was self-created.
On June 27, 2014, Plaintiff provided Court Administration with a copy of the Praecipe to List for
Trial, filed on November 27, 2013. However, by the time Plaintiff provided Court
Administration with the required document, approximately seven (7) more months had elapsed.
Upon receiving a copy of Plaintiffs praecipe, Court Administration immediately placed the case
on the undersigned's next civil trial list. However, given that more than four (4) years and ten
(10) months had elapsed since the filing of the action, common sense dictates that the claim
could not have gone to trial and be reduced to verdict or judgment within five (5) years.
Importantly, Plaintiff did not attempt to have this matter scheduled earlier by requesting an
administrative conference or filing an emergency motion for a trial date.
Plaintiffs assertion that the Court prevented the timely disposition of the mechanics' claim is
merely an attempt to deflect blame. Contrary to Plaintiffs assertion that the Court's June 15,
2015 ruling permits "gotcha" moves by counsel, the Court's trial listing procedure is clearly
delineated in the local rules. The Court states its case listing policy in this manner in an attempt
to prevent any type of gamesmanship from occurring and to promote the orderly administration
of litigation. Counsel is presumed to have read and comprehended the rules of procedure,
including relevant local rules.
Even assuming arguendo that the Court contributed to an administrative delay in the prosecution
of the claim, section 1701 (d) of the Mechanics' Lien Law does not excuse this scenario. A plain
reading of the Mechanics' Lien Law unequivocally establishes that the only time excludable
from the five (5) year rule is delay that is attributable to Defendant or caused by appeal. It must
be assumed that the legislature took delays, regardless of the source, into account when it
established the five (5) year limitation. The statute must be followed whether strict or liberal,
harsh or equitable. Consequently, Defendant is not entitled to relief on this claim.
In the second issue raised on appeal, Plaintiff contends that the trial court's ruling as to mootness
failed to take into consideration that equitable argwnents should be permitted, especially where
Defendant has filed an Answer to the Complaint, raised a Counterclaim seeking significant
damages and has generally treated this as a separate civil action, not subject to a five (5) year
limitation. Concise Statement, 7/21/15, at 2. However, Plaintiffs contention is neither
supported in fact nor law.
A plain reading of the local rules unequivocally establishes that mechanics' liens are deemed
category B cases and are not subject to the Court's automatic case listing policy. We reiterate
that this case was commenced as a mechanics' lien action and is subjectto the strict statutory
construction, including the five year rule. As such, Plaintiffs equitable arguments are irrelevant
in the timely prosecution of this statutory claim. A Mechanics' lien claim must be strictly
1 qs
construed to effectuate its purpose. Castle Pre-Cast Superior Walls of Delaware. Inc. v. Strauss-
Hammer, 610 A.2d 503, 504 (Pa. Super. 1992) citing Brann & Stuart Co. v. Consolidated Sun
Ray Inc, 253 A.2d 105 (Pa. 1969); Wvatt Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557,
564 (Pa. Super. 2009). Therefore, to effectuate a valid mechanics' lien claim, a plaintiff must
strictly comply with the requirements of Title 49.6
Additionally, the Commonwealth rules of civil procedure prohibit a plaintiff from joining any
other cause of action in a mechanics' lien action. Rule 1657 clearly states as follows:
Actions Upon Mechanics' Liens:
"No other cause of action may be joined wi th an action to obtain
judgment on a claim except that where the improvement is located
in more than one county and claims have been filed in more than
one of said counties the plaintiff may join the claims in a single
action."
Pa.R.C.P. No. 1657.
The rules of civil procedure also govern set-offs and counterclaims. A set-off, like a
counterclaim, is a cause of action brought by the defendant in opposition to a plaintiffs claim
and seeks affirmative relief against the plaintiff. Kaiser bv Taylor v. Monitrend Inv. Mgmt.. Inc.,
672 A.2d 3 59 (Pa. Commw. Ct. 1996). Unlike the counterclaim, however, a set-off is not a
separate cause of action and therefore, must be based upon the same transaction underlying the
plaintiffs cause of action. Id. The amount of any set-off is limited to the amount of the lien
itself. See Standard Pennsylvania Practice 2d, § 105:215, at 267. "A set-off arising from the
same transaction or occurrence upon which the [mechanics'] claim is based may be pleaded as
new matter. No counterclaim may be asserted." Pa.R.C.P. No. 1658.
Pursuant to the rules of ci vii procedure and in response to the Complaint filed on September 16,
2009, Defendant filed an Answer, New Matter and Counterclaim on September 30, 2009.
Defendant's counterclaim was filed in derogation of Pa.R.C.P. No. 1658. However, the
counterclaim may be liberally construed under the rules as a set-off since it seeks damages for
repairing Plaintiffs alleged defective workmanship. Pa.R.C.P. 126. Mistakenly asserting a set-
off as a counterclaim rather than new matter is not fatal to the cause of action and does not
excuse Plaintiffs impermissible joining of claims.
Having determined that the counterclaim is really in the nature of a set-off, the amount of the
counterclaim is a red herring. Contrary to Plaintiffs contention, the counterclaim, deemed a
setoff, may exceed the amount of the mechanics' lien claim. In this scenario, defendant as the
prevailing party, would be entitled to an award of zero (0) dollars. Defendant could not recover
any damages in excess of the mechanics' lien claim. This type of set-off would simply defeat the
mechanics' lien claim. Defendant would need to file a separate civil action to potentially recover
any further damages. In sum, a setoff may act as a shield but not a sword.
6
Notably, Plaintiff provides the Court with no authority to the contrary. Rather, Plaintiff mistakenly attempts to rely
on the inherent nature of the Court's equitable power.
Even assuming arguendo that Defendant's Counterclaim is improper under§ 1701(e), the proper
remedy is for it to be stricken. The striking of Defendant's counterclaim still would not permit
Plaintiff to pursue impermissible claims under the Act. Accordingly, Plaintiff is not entitled to
relief on this claim.
In the third issue claimed on appeal, Plaintiff avers that the Court erred by rejecting his
contention that this case should be treated as a general breach of contract claim, not subject to
section 1701 ( d). Concise Statement, 7 /21 /15/ at 2. However, we disagree. Importantly, Plaintiff
chose to proceed solely under the Mechanics' Lien Law instead of commencing a separate civil
action to advance any potential common law claims. To reiterate, the rules of civil procedure
prohibit the joining of any other causes of action with a mechanics' lien claim. Therefore, we
infer from Plaintiffs actions that he has always intended to treat this as a mechanics' lien case.
It is axiomatic in this Commonwealth that a plaintiff may commence a civil action by filing with
the Prothonotary either a praecipe for a writ of summons or a complaint.7 Pa.R.C.P. No. 1007:
Shackelford v. Chester Cntv. Hosp., 690 A.2d 732 (Pa. Super. 1997). However, Plaintiff
commenced the instant action by filing only a mechanics' lien claim in the amount $15,837.00.
The civil cover sheet along with the Notice of Mechanics' Lien filed by Plaintiff clearly
designate this action as a mechanics' lien case. See Civil Cover Sheet 8/7/09; Notice of
Mechanics' Lien, 8/7/09. Moreover, a civil action cannot be effectuated by filing a Notice of
Mechanics' Lien.8
The Mechanics' Lien Law is intended to protect prepayment labor and materials that a contractor
invests in another's property by allowing the contractor to expeditiously obtain a lien interest in
the property involved. However, a mechanics' lien proceeding is not intended to settle the
contractual obligations of the parties. 49 P.S. §§ 1101 et seq.; Artsmith Dev. Grp .. Inc. v.
Upde2:raff, A.2d 495, 497 (Pa. Super. 2005). Accordingly, Plaintiff may not circumvent the
rules of civil procedure to merely avoid the consequences of his choice to initiate a mechanics'
lien action.
Plaintiff's claim that Defendant has treated this matter as a general civil action by filing a Rule to
file a Complaint is misplaced. Upon being served with the mechanics' lien claim, Defendant
filed a Rule to file a Complaint. This procedure is authorized by 49 P.S. § 1506. Specifically,
section 1506 states in relevant part as follows;
"Entry of rule; effect. At any time after the completion of the work
by a subcontractor, any owner or contractor may file a rule or
rules, as of course, in the court in which said claim may be filed;
requiring the party named therein to file his claim within thirty
(30) days after notice of said rule or be forever barred from so
doing. The rule shall be entered by the prothonotary upon the
judgment index and in the mechanics' lien docket. Failure to file a
7
The rules also require that "original process ... be served within the Commonwealthwithin thirty days after the
issuance of the writ or the filing of the complaint." Pa.R.C.P. No. 40L
8
We reiterate that counsel is presumed to have read and comprehended the rules of procedure.
9 'f 1
claim within the time specified shall operate to wholly defeat the
right to do so. If a claim be filed, it shall be entered as of the court,
term and number of the rule to file the same."
49 Pa. C.S.A. § I 506(a). Consequently, Defendant cannot be deemed to have treated this as a
general civil action for exercising her statutory right.
Similarly, Defendant's filing of an Answer, New Matter and Counterclaim in response to the
Complaint does not unilaterally convert the matter into a general civil action. Furthermore, the
filing of an Answer and New Matter is not fatal to the action. Defendant can proceed in this
manner if she chooses. However, by proceeding in this manner rather than filing preliminary
objections, Defendant may have missed the opportunity to assert certain procedural challenges to
the mechanics' lien claim. Defendant remains able to attain a similar procedural challenge by a
different means, i.e. the filing of the Motion. In short, Defendant's filings did not modify
Plaintiffs cause of action. Consequently, Plaintiff is required to prosecute the mechanics' lien
claim in the time allotted by the statute.
Because of the in rem nature of a mechanics' lien claim, a defendant is prohibited from asserting
a counterclaim, that is, a claim against a plaintiff that could result in an affirmative judgment for
the defendant. A set-off, which is a claim against a plaintiff that may be used only to diminish his
or her recovery, is permitted, however, provided that it arises from the same transaction or
occurrence upon which the plaintiffs claim is based. Here, even assuming that Defendant's
Counterclaim, which the Court treated as a set-off, is somehow improper under § 1 70 l ( e ); the
proper remedy is for the Counterclaim to be stricken; not to unilaterally recast the action as a
breach of contract case. Accordingly, Plaintiffs argument is without merit.
In the fourth issue claimed on appeal, Plaintiff contends that the Court erred by failing to
consider his argument for nunc pro tune relief, whereby the mechanics' lien could be stricken but
the civil action could be filed under a different term number as of the date that it was
initially
filed under the mechanics' lien claim number, thereby allowing the case to proceed trial.
Concise Statement, 7 /21115/ at 2. However, this argument misstates the obligation of the Court.
Because a mechanics' lien represent a unique remedy in favor of a special class of creditors,
courts have generally reviewed such claims with a strict construction of the statute which created
them. Brann & Stuart Co., 253 A.2d at 106; McCarthv, 215 A.2d 2 at 258. Here, Plaintiff chose
to proceed solely under the Mechanics' Lien Law and therefore, is bound by the narrow
requirements of the statute. The Court will not intervene in the litigation and circumvent the
rules of procedure or the prothonotary's filing requirements. Here, leave of Court was not
required for Plaintiff to withdraw the improper breach of contract claim. Rather, at any point
prior to the Court issuing its July 2, 2015 Order, striking the action, Plaintiff could have availed
himself to the rules of civil procedure and withdrawn the mechanic lien claim and pursued only
the common law claims. Along with withdrawing the mechanics' lien claim, Plaintiff could have
commenced a separate general, civil action. The initiation of the new civil action would have
also required effectuating proper service and paying the associated filing fee. However, Plaintiff
chose to proceed solely under the mechanics' lien case number. Accordingly, Plaintiffs failure
to follow proper procedure in this matter does not obligate the Court to procedurally adjust the
case for counsel or adequately justify relief nunc pro tune.
10 1r
In the last issue claimed on appeal, Plaintiff claims that the trial court's ruling erroneously
envisions no procedure to equitably address delays in trial or deceptive practices thereby leading
to the sort of gamesmanship that has taken place in this case and which is contrary to basic tenets
of civility in the bar and fundamental fairness. However, this argument is incongruent and
without merit. Concise Statement, 7/21/15, at 2.
Plaintiffs argument amounts to a refusal to accept responsibility for a self-created issue.
Contrary to Defendant's argument, the Court's June 15, 2015 decision envisions a procedure for
the timely prosecution of claims. Specifically, that procedure entails complying with the laws of
this Commonwealth and rules of civil procedure. It was Plaintiffs repeated disregard of the
rules of civil procedure, the Mechanics' Lien Act, and local practice that resulted in the dismissal
of the action. Gamesmanship that is contrary to basic tenets of civility played no role in the
Court's ruling. Fundamental fairness dictates that neither the Court nor Defendant is obligated to
assist Plaintiff in the prosecution of his claim. Furthermore, as thoroughly discussed supra, we
find that Defendant did not contribute to the delay of the prosecution of the mechanics' lien.
Therefore, it would be in derogation of the rules of Court and a perversion of the system for the
Court to favor one party over another. If a party wishes to take advantage of a mechanics' lien,
he must avail himself to the statute as the General Assembly intended. Accordingly, we do not
find improper gamesmanship.
For all the reasons above, it is respectfully requested that the decisions of this Court be affirmed.
BY THE COURT:
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William P. Mahon, J.
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