Menken, J. v. GCG Mann-Hof ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN MENKEN D/B/A LINCOLN SERVICE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GCG MANN-HOF CORPORATION D/B/A
BIER GARTEN; HEIDE MOSS AND
GERALD HOFFMAN
Appellees No. 2728 EDA 2015
Appeal from the Order July 31, 2015
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2011-80036
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 19, 2016
John Menken d/b/a Lincoln Service (“Menken”) appeals from the trial
court’s order granting summary judgment in favor of GCG Mann-Hof
Corporation d/b/a Bier Garten (“GCG”), Heidi Moss, and Gerald Hofmann
(collectively, “Appellees”). After careful review, we affirm.
This case arises from a dispute regarding work performed by Menken
at GCG’s principal place of business, located at 141 North Main Street,
Telford, Bucks County, PA, 18969 (“the Property”). The work was alleged to
have been done pursuant to a verbal contract between Menken and Moss
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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and Hofmann, on behalf of and for the benefit of GCG. Trial Court Opinion,
11/20/15, at 1.
The trial court set forth the relevant facts and procedural history as
follows:
On May 9, 2011, the Plaintiff, John Menken d/b/a Lincoln
Service, filed a claim against Defendants GCG Mann-Hof
Corporation d/b/a Bier Garten (“GCG”), Heidi Moss (“Moss”), and
Gerald Hofmann (“Hofmann”) pursuant to the Mechanic’s Lien
Law, 49 P.S. § 1101 et seq. By order dated July 31, 2015, this
Court granted Defendant’s motion for summary judgment and
dismissed the mechanic’s lien. Plaintiff filed a timely notice on
August 31, 2015.
GCG is a corporation. Its principal place of business is located at
141 North Main Street, Telford, Bucks County, PA, 18969 (“the
Property”). Moss and Hofmann reside at 1980 Allentown Road,
Hatfield, PA, 19440. Hofmann is the owner of the property.
The initial mechanic’s lien claim was filed pro se on May 9, 2011.
The claim related to labor and materials alleged to have been
furnished pursuant to a verbal contract Menken entered into with
Moss and Hofmann on behalf of and for the benefit of GCG for
the renovation and reconstruction of the building located on the
Property. The work, which included insulation, plumbing,
heating, ventilating, electrical, dry wall, doors, windows,
suspended ceiling, and gutters, began on November 4, 2008 and
ended on January 15, 2011. On August 8, 2011, Defendants
filed preliminary objections to the mechanic’s lien claim. By
Order dated November 17, 2011, the preliminary objections
were sustained and the mechanic’s lien was dismissed.
On December 8, 2011, Menken, now represented by counsel,
filed an “Amended Mechanic’s Lien Claim” with regard to the
same work, alleged to have occurred over the same period of
time, pursuant to the same verbal agreement. On December 27,
2011, Defendants filed preliminary objections to the amended
mechanic’s lien claim. On April 3, 2012, this Court overruled the
preliminary objections. On April 23, 2012, Defendants filed a
motion to reconsider the denial of the preliminary objections.
That motion was denied on August 22, 2012. On September 21,
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2012 Defendants filed a praecipe for rule to file complaint. On
October 4, 2012, Menken filed a “Complaint to Obtain Judgment
on Mechanic’s Lien Claim.”
On September 30, 2014, Defendants served Menken with
Requests for Admission. On February 27, 2015, Defendants filed
a motion for summary judgment pursuant to Pa.R.C.P. § 1035.2
alleging, inter alia, that Menken had failed to respond to
Defendants’ requests for admission and that, as a result,
pursuant to Pa.R.C.P. § 4014(b), the requests for admission are
deemed admitted. On June 4, 2015, more than eight months
after Menken was served with requests for admission and more
th[a]n three months after Defendants filed their motion for
summary judgment, Menken responded to the requests for
admission. Menken did not seek leave of court for additional
time to file a response.
Trial Court Opinion, 11/20/15, at 1-2. On July 31, 2015, the trial court
granted Appellees’ summary judgment motion without argument. Menken
filed this timely appeal on August 31, 2015.
Menken provides the following six issues for review:
I. Whether or not the Court erred in ruling that Menken did not
provide sufficient evidence that there are genuine issues of
material fact arising from the evidence in the record
controverting the evidence cited in Appellees’ Motion for
Summary Judgment and establishing facts essential to Menken’s
cause of action as required by Pa.R.C.P. § 1035.3(a).
II. Whether or not the Court erred in granting Summary
Judgment in favor of Appellees and dismissing the Mechanic’s
Lien filed by Menken and denying Menken’s Petition for
Reconsideration based upon Appellees’ allegations that the
Amended Mechanic’s Lien failed to comply with the requirements
of 49 P.S. §§ 1502(a)(i); 1503(2); 1201; 1503(8); 1503(5); and
1503(6).
III. Whether or not the Court erred in granting Appellees’ Motion
for Summary Judgment by ruling that the work performed by
Menken failed to qualify as an improvement to the property
under the Mechanic’s Lien Act as Menken produced documents
showing the scope of the work and improvements performed by
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Menken and the issue of whether the work qualified as a
Mechanic’s Lien is a question of fact for trial.
IV. Whether or not the Court erred in not considering Menken’s
Answers to Interrogatories, Menken’s Reply to New Matter,
Affidavit in Support of Petition for Reconsideration, Menken’s
Response to Request for Admissions and the allegations of
Menken’s Amended Mechanic’s Lien claim and Complaint and
other pleadings contained in the record in determining whether
Menken has produced sufficient evidence of facts to prove his
cause of action.
V. Whether or not the Court erred in failing to address whether it
was granting Menken’s Motion for Summary Judgment on the
Complaint fueled by Menken for money damages for work
performed or only on the dismissal of Menken’s Mechanic’s Lien.
VI. Whether or not the Court erred in not reviewing the record in
the light most favorable to the non-moving party and in failing to
resolve all doubts as to the existence of genuine issues of
material facts against the moving party.
Appellant’s Brief, 2/5/16, at 5-6.
The standard of review in summary judgment cases is well settled:
The rule states that where there is no genuine issue of material
fact and the moving party is entitled to relief as a matter of law,
summary judgment may be entered. Where the nonmoving
party bears the burden of proof on an issue, he may not merely
rely on his pleadings or answers in order to survive summary
judgment. Failure of a nonmoving party to adduce sufficient
evidence on an issue essential to his case and on which he bears
the burden of proof establishes the entitlement of the moving
party to judgment as a matter of law. Lastly, we will review the
record in the light most favorable to the nonmoving party, and
all doubts against the existence of a genuine issue of material
fact must be resolved against the moving party.
ToDay’s Housing v. Times Shamrock Communications, Inc., 21 A.3d
1209, 1213 (Pa. Super. 2011).
Instantly, the trial court entered the order granting summary
judgment based upon the fact that Menken did not file a timely response to
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Appellees’ request for admissions, and as such, all the points stipulated to in
the request were deemed admitted. The trial court detailed the stipulated
points.
In the instant case, as a result of Menken’s failure to respond to
Defendants’ requests for admission in a timely fashion, Menken
is deemed to have admitted the following facts[.] [A]ll work
performed as alleged in Menken’s complaint for mechanic’s lien
was done for the benefit of GCG. GCG is not the owner of the
Property. The Property is owned by Hofmann. Menken had no
written or oral contract or agreement with Hofmann for services
to be performed at the Property. Menken did not provide a bill
for work allegedly performed at the Property to Hofmann, GCG
or anyone else prior to the filing of his complaint for mechanic’s
lien. Menken did not provide Hofmann, Moss, GCG or anyone
else with a detailed statement of the kind, character and cost of
the work performed, type and cost of material furnished, at any
time prior to the filing of Menken’s complaint. Menken did not
provide Hofmann with a description of any of the alleged
improvements to the Property pursuant to 49 P.S. § 1503(8)
which requires a mechanic’s lien claim to state “such description
of the improvement and of the property claimed to be subject to
the lien as may be reasonably necessary to identify them.” None
of the work performed by Menken as alleged in his complaint
constituted a new improvement or substantial addition to the
existing structure at the Property or created a significant change
in its use. The work performed by Menken as alleged in his
complaint are a series of individual jobs in the nature of repairs.
None of the work performed by Menken at the Property
constituted an erection or construction of an improvement or an
alteration or repair of an existing improvement rendering it fit for
a new and distinct use.
Trial Court Opinion, 11/20/15, at 3-4.
A mechanic’s lien is purely a creature of statute, and is only available
to a party if the conditions imposed by the legislature are strictly followed.
Murray v. Zemon, 167 A.2d 253, 255 (Pa. 1960). Moreover, a valid
mechanic’s lien claim must have a contract as its basis. Id. It is well
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established that the absence of a contract results in the absence of a lien,
and no enforcement proceeding may follow. Hill v. Edinboro
Development, Inc., 420 A.2d 562, 567 (Pa. Super. 1980); Johnson Serv.
Co., v. The Fayette Title & Trust Bldg., 96 Pa. Super. 543 (1929).
Among the admissions in the request, Menken was deemed to have
admitted that he did not have a written or verbal contract with GCG, Moss,
or Hofmann. Because Menken failed to respond to Appellees’ request for
admissions in a timely manner, and was, therefore, deemed to have
admitted that no valid written or verbal contract existed, no valid mechanic’s
lien claim can exist. Hill, supra; Johnson, supra. Therefore, the trial
court did not err in granting Appellees’ motion for summary judgment.
Menken raises several arguments in his brief rebutting this conclusion.
First, he claims that Pa.R.C.P. 4014, governing the procedure underlying
requests for admission, is not a bright-line rule, and should not be used
when “the rigid application of [the] rule[] does not serve the interests of
fairness and justice.” Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006).
Menken claims that because discovery was still ongoing, as evidenced by the
outstanding notice of deposition for August 11, 2015, and because no trial
date had been set, Appellees were not prejudiced by his delayed response.
As such, Menken claims, he should not be penalized for failing to follow the
time restraints set out in Rule 4014.
While Menken is correct in noting that the Rules of Civil Procedure do
consider the notions of fairness and justice, a standard application of Rule
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4014 in this case is not inherently unfair to Menken. Rule 4014 states in
pertinent part:
(b) Each matter of which an admission is requested shall be
separately set forth. The matter is admitted unless, within thirty
days after service of the request, or within such shorter or
longer time as the court may allow, the party to whom the
request is directed serves upon the party requesting the
admission an answer verified by the party or an objection,
signed by the party or by the party’s attorney…
Pa.R.C.P. Rule 4014(b) (emphasis added). The Rule acknowledges the
situation that may arise in which a party submits a request for admissions
and the other party must request more time from the judge in order to
conduct discovery. What the rule does not permit, however, is a party that
simply ignores the request without judicial permission. Therefore, just as
Menken argues that Appellees were not prejudiced by his delayed response,
Menken was not prejudiced by the request itself, having the opportunity to
ask the judge for more time to conduct discovery before responding. We
decline to find that a Rule of Civil Procedure can be set aside in the interests
of fairness and justice when the party making the claim failed to utilize
avenues available within the rule itself.
Menken’s second argument is that, even if he was deemed to have
admitted everything in the request, it still does not account for the fact that
there may have been an implied contract. As such, that is a controverted
fact which precludes the entry of summary judgment. Even if that is the
case, Menken cannot raise that issue now on appeal when it was not raised
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before the trial court. See Krentz v. Consolidated Rail Crop., 910 A.2d
20, 37 (Pa. 2006) (arguments not raised before trial court in opposition to
summary judgment cannot be raised for first time on appeal); McHugh v.
Proctor & Gamble, 875 A.2d 1148, 1151 (Pa. Super. 2005). Not only did
Menken not raise this issue at the trial level, he also elected not to raise the
argument when he failed to respond to Appellees’ request for admissions.
As such, we find the issue waived. Pa.R.A.P. 302(a).1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
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1
Given that the lack of a contract is dispositive of this case, we need not
reach the remainder of the issues Menken raises on appeal.
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