Construction Services Group Alert: Superior Court of Pennsylvania Appears to Conclude that Notice of Intent to File a Mechanics’ Lien Claim Must Now Be Served by the Sheriff’s Office

It has been more than a dozen years since the Superior Court of Pennsylvania’s decision in Regency Investments, Inc. v. Inlander Ltd., 855 A.2d 75 (Pa. Super. 2004).  In that case, the court concluded “that service of a notice of filing of claim under Pennsylvania’s Mechanic’s Lien Law must be made ‘in person by the sheriff to the extent practicable.’”  Babich v. Buffalo Wild Wings, Slip. Op. No. 122 WDA 2016 (Pa. Super. Jan. 18, 2017) at p. 5, quoting, Regency Investments, 855 A.2d at 78.

Focusing on that language, the Superior Court in Babich, through an opinion crafted by the Honorable President Judge Emeritus, John T. Bender, held that because the claimant did not have the sheriff serve the notice of intent to file a mechanics’ lien and instead only sent the notice by United States First Class Mail, the claim and the complaint (amended) to enforce the claim were defective.  Consequently, the Superior Court affirmed the trial court’s order sustaining the preliminary objections and dismissing the mechanics’ lien claim along with an amended complaint filed by the claimant in an effort to address the asserted service deficiencies.

While this is a non-precedential decision and is among a growing number of such determinations made by the Superior Court, the potential impact of this decision is still remarkable and cannot be ignored.  The Babich case may very well alter an already rapidly shifting landscape underlying the Pennsylvania Mechanics’ Lien Law of 1963, 49 P.S. §§ 1101-1902, as amended (the “Lien Law”).  Unfortunately, the case is directly contrary to the statutory language of the Lien Law pertaining to notices of intent to file mechanics’ lien claims.  Therefore, future case decisions will be needed to reconcile this apparent anomaly existing in the Lien Law lexicon.

The claimant was a subcontractor performing plumbing work in connection with the construction of a Buffalo Wild Wings restaurant.  Claiming that he was owed a balance for labor and materials furnished to the project, “on September 11, 2014, Appellant sent a notice of intent to file a mechanics’ lien to the corporate office of Appellee via regular United States mail.”  Babich, Slip. Op. at p. 1-2.  Thereafter, on October 3, 2014, the subcontractor filed the actual mechanics’ lien claim in the Court of Common Pleas of Washington County, Pennsylvania.  The Superior Court stated “[i]n the instant case, the trial court found that Appellant failed to obtain service of his notice of intent by the sheriff as required by Section 1502(c) [of the Lien Law].… Instead, Appellant only sent notice by United States, first class mail.”  Slip Op. at p. 6.

Unfortunately, the entirety of this analysis did not mention Section 1501(b.1) of the Lien Law, stating as follows:

Time Period of Formal Notice.  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 [1506].

Section 1501 (d) of the Lien Law then goes on to state the following:

Service of notice.  The notice 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.

The language of the opinion in Babich indicates that the focus of the discussion was on the notice of intent to file a mechanics’ lien claim (as opposed to service of the lien claim itself, the actual subject of the decision in Regency Investments).  If, in fact, the Superior Court was discussing the notice of intent and the service of it as the basis for dismissal of this mechanics’ lien claim, then a conflict now exists between the Babich decision and the clear language of Section 1501 of the Lien Law.

Interestingly, the facts of the case present another basis on which Babich’s lien claim could have been discharged.  As quoted above, the notice of intent must be given thirty (30) days prior to the date of filing of the mechanics’ lien claim.  Here, Babich sent the notice of intent on September 11, 2014 and less than thirty (30) days later Babich filed the mechanics’ lien claim in the Court of Common Pleas of Washington County.  It is this deficiency that would have been a firm and fully supported basis for striking off the mechanics’ lien claim.  Instead, by concluding that the notice of intent had to be served by the sheriff, an unfortunate conflict now exists.  Keep in mind, as well, the practical implications of this decision.  The notice of intent is given prior to the filing (and docketing) of the mechanics’ lien claim itself.  Therefore, there is no docket number associated with a simple notice of intent.  That, in and of itself, may complicate requests to the sheriff’s office that they serve what is essentially a letter on behalf those subcontractors seeking to file future lien claims in the Commonwealth of Pennsylvania.  Time will tell the ultimate impact of the Babich decision.  Still, practitioners and claimants in Pennsylvania (and particularly those in Washington County) need to consider the language and result of the Babich decision now.

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