PA Superior Court Suggests Service of Mechanics’ Lien Impermissible by Mail in Non-precedential Opinion
In a January 18, 2017 decision, the Superior Court of Pennsylvania issued a non-precedential decision in Babich v. Buffalo Wild Wings suggesting that service of a lien claim by mail upon an out-of-state owner in accordance with Pennsylvania Rules of Civil Procedure 403 and 404 does not satisfy the service requirements for a lien claim. Instead, the Babich decision suggests the only manner of service permissible for a lien claim is by sheriff, and if the sheriff is unable to effectuate service, then by posting on the property being liened.
In the Babich case, the claimant had its lien dismissed on preliminary objections because it failed to strictly comply with the service requirements in section 502(c) of the Pennsylvania’s Mechanics’ Lien Law (the “Lien Law”). That section states:
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 part of the improvement.
Interpreting this requirement, the court commented that the language of section 502(c) means service of notice of filing a claim must be made “in person by the sheriff to the extent practicable” and “[o]nce the claimant establishes that personal service has not been successful, the statute permits posting as an alternative method of service.”
Notably, the project owner was Buffalo Wild Wings – an entity whose corporate headquarters are outside the Commonwealth. Thus, one might expect the claimant could have argued its service complied with Rules 403 and 404. However the opinion makes no mention of this argument and contains no discussion of the interplay, if any, between section 502(c) of the Lien Law and the service rules. Thus, one could read the Babich decision to implicitly prohibit service of a lien claim outside the Commonwealth via mail as contemplated by Rules 403 and 404, and instead, require service of a lien claim by sheriff, and if the sheriff is unable to effectuate service, then by posting.
Also notable from the Babich decision, the Superior Court reaffirmed its position that statutory requirements dealing with notice and service (i.e. procedural requirements) are subject to strict interpretation while statutory requirements dealing with the form of notice or claim (i.e. the substantive information contained within a notice or claim) is subject to a more liberal substantial compliance standard.
The attorneys’ in Babst Calland’s Construction Group are available to answer any questions you may have about Pennsylvania’s Lien Law.