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B & P DEV. v. WALKER

September 2, 1976

B & P DEVELOPMENT
v.
Ervin WALKER et al. CLEVETRUST REALTY INVESTORS v. ERIE FLEXLUMESIGN CORP. et al.



The opinion of the court was delivered by: KNOX

 KNOX, District Judge.

 Plaintiffs in these two cases challenge the constitutionality of the Pennsylvania Mechanics Lien Law, 49 Purdon's PS 1101, et seq. The constitutionality of this legislation, passed in 1963, has not been ruled upon by any court in Pennsylvania with respect to the possible violations of the federal constitution. *fn1"

 B & P Development, the plaintiff in Civil Action 76-28 erected a restaurant, a grocery store, and a two-family duplex residence in Corry, Pennsylvania. Clevetrust Realty Investors, the plaintiff in Civil Action 76-38 held a first mortgage on land in Edinboro, Pennsylvania which was leased to Edinboro Development, Inc. The latter corporation became insolvent while erecting commercial buildings on an eleven-acre property in Edinboro, Pennsylvania. The mortgage was then foreclosed and Clevetrust Realty Investors bought the property at a Sheriff's sale.

 All of the property owned by the plaintiffs in these cases has been encumbered by mechanics lien claims asserted by the various individual and corporate defendants. These liens are the subject of pending litigation in the Court of Common Pleas of Erie County, Pennsylvania.

 The issues involved in these cases are identical to those involved in the decision of a three judge court which upheld the constitutionality of the mechanics lien law of Arizona, Spielman-Fond, Inc. v. Hanson's Inc., 379 F. Supp. 997 (D.Ariz.1973). *fn2" This decision was summarily affirmed by the Supreme Court. 417 U.S. 901, 94 S. Ct. 2596, 41 L. Ed. 2d 208 (1974). *fn3" This court considers itself bound by the summary affirmance of Spielman and accordingly will uphold the constitutionality of the Pennsylvania Mechanics Lien Law. The court may dispose of these cases by denying motions for summary judgment filed by the plaintiffs and entering final judgments for defendants because the facts are not in dispute and only legal issues are involved. Tomalewski v. State Farm Life Insurance Company, 494 F.2d 882 (3d Cir. 1974).

 The defendants in Spielman had secured mechanics liens on the plaintiffs' mobile home park and claimed that they were unpaid for labor and materials supplied to the project. The plaintiffs filed suit to enjoin the operation of the Arizona Mechanics Lien Law claiming as do the plaintiffs in these cases a violation of the due process of law guaranteed by the Fourteenth Amendment.

 The Spielman three judge court evaluated the Arizona Mechanics Lien Law in the light of four recent Supreme Court decisions which dealt with the requirements of notice and hearing under the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972) held that pre-judgment replevin statutes in Florida and Pennsylvania were unconstitutional in that chattels could be seized from the owner without any opportunity for a fair hearing. Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971) held that the imposition of court fees and costs in divorce proceedings was unconstitutional in light of the state's monopoly on divorce. Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970) held that welfare benefits may not constitutionally be terminated without a prior notice and hearing. Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969) held that wages may not be garnished without a notice and a hearing.

 The court held that the imposition of a mechanics lien did not involve a significant taking of property and therefore found that the due process standards of the above four cases did not apply to the Arizona Mechanics Lien Law.

 The court concluded that while a total prohibition on alienation of property may be unconstitutional, the partial prohibition effected by a mechanics lien does not necessitate the due process requirements of a notice and a hearing:

 
"All the cases [cited by the plaintiffs] involved direct and total prohibitions on the right to alienate. The prohibitions involved were such that, even if a seller could find a willing buyer, the statutory or contractual prohibitions involved prevented consummation of the transaction. That is a different situation from the case at bar. Here, a lien is filed against the property and clouds title. It cannot be denied that the effect of such lien may make it difficult to alienate the property. If the plaintiffs can find a willing buyer, however, there is nothing in the statutes or the liens which prohibits the consummation of the transaction. Even though a willing buyer may be more difficult to find, once he is found there is nothing to prevent plaintiffs from making the sale to him. The liens do nothing more than impinge upon economic interests of the property owner. The right to alienate has not been harmed, and the difficulties which the lien creates may be ameliorated through the use of bonding or title insurance.
 
"We conclude, therefore, that the filing of a mechanics and materialmens lien does not amount to a taking of a significant property interest, and that, accordingly, ARS ยง 33-981 et seq. are not violative of due process of law under the Fourteenth Amendment for failing to provide for notice and hearing prior to the filing of the lien." 379 F. Supp. at 999.

 A number of recent Supreme Court opinions have dealt with the precedential value of summary affirmances of District Court judgments by the Supreme Court. In Fusari v. Steinberg, 419 U.S. 379, 95 S. ...


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