from the Order Dated August 22, 2018 In the Court of Common
Pleas of Delaware County Civil Division at No(s):
BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI [*] , J.
Firma Builders, LLC (Contractor) appeals from the order
entered in the Court of Common Pleas of Delaware County
(trial court) granting the motion to strike a mechanics'
lien filed by William King a/k/a Billy M. King and Melanie L.
King a/k/a Melanie L. Frantz (Owners) pursuant to the
Mechanics' Lien Law of 1963 (Mechanics' Lien
Law). For the following reasons, we reverse.
derive the relevant background of this case from our
independent review of the record. On February 20, 2013,
Contractor filed a timely mechanics' lien for materials,
supplies or labor to the Owners in the amount of $131,
123.24. That lien was served by the Sheriff on Owners on or
about March 18, 2013. The affidavit of service was filed on
or about March 22, 2013, with the Delaware County Court of
Common Pleas Prothonotary. Contractor praeciped to
voluntarily withdraw the lien.
April 29, 2013, Contractor then refiled the exact same
mechanics' lien it had previously perfected in March 2013
and it was given a new docket number. This time, though,
Contractor failed to file an affidavit of service for the
refiled lien as required by Section 502 of the Mechanics'
Lien Law. The Owners did not file any preliminary
objections to the claim as provided for in Section 505 of the
Mechanics' Lien Law. On February 19, 2015, Contractor
then filed a Complaint to enforce the lien. Owners did not
file preliminary objections to the Complaint alleging the
defect in service of the underlying mechanics' lien nor
did they otherwise raise it as a defense in that action.
December 8, 2017, the trial court then consolidated the lien,
the Complaint to enforce the lien as well as Contractor's
breach of contract action against the Owners. The
consolidated matters then proceeded to trial with the Owners
prevailing on the merits. Post-trial motions were then
2018, while post-trial motions were still pending, the Owners
then filed a petition to strike the mechanics'
because Contractor failed to strictly comply with statutory
requirements governing perfection of the lien, specifically,
49 P.S. § 1502(a)(2) concerning service. Even though the
preliminary objection was filed five years after the filing
of the claim, the trial court granted the motion and held
that motion to strike, i.e., preliminary objections
under § 505 of the Mechanics' Lien Law could be
filed at any time, even after the enforcement action was
filed and the trial was over. This timely appeal followed.
appeal, Contractor contends that the trial court erred in
striking the mechanics' lien. It concedes that it
"did not properly file an affidavit of service or notice
or an acceptance of service as set forth in 49 P.S. §
1502," but argues that the trial court erred in striking
the lien because Owners waived any objection to the defective
service because: they did not preliminary object when the
lien was filed in 2013; did not raise it by preliminary
objections to its Complaint to enforce the lien nor did they
did raise it by preliminary objections in their contract
action; never raised an issue regarding service at trial; and
never raised it in any motion for post-trial relief. For
their part, Owners contend that they can move to preliminary
strike on the basis of § 505 at any time, including
after the case has gone to trial, because no time period is
provided for when preliminary objections have to be filed.
answer this question, we examine how mechanics' lien
claims can be challenged and enforced under the
Mechanics' Lien Law.
liens "were unknown at common law and are entirely a
creature of statute." Terra Technical Services, LLC
v. River Station Land, L.P., 124 A.3d 289, 299 (Pa.
2015) (quoting Bricklayers of Western Pennsylvania
Combined Funds, Inc. v. Scott's Development Co., 90
A.3d 682, 690 (Pa. 2014)). "Such liens are designed to
protect persons who, before being paid (or fully paid),
provide labor or material to improve a piece of property.
Mechanics' liens accomplish this goal by giving
lienholders security for their payment independent of
contractual remedies." Id. (internal citations
omitted). The Mechanics' Lien Law not only provides for
such liens but creates a statutory procedure for the filing
of and enforcement of such liens. "[T]he right to a
mechanic[s'] lien is purely a creature of statute and it
is only available if the conditions of the legislature are
strictly followed." Schell v. Murphy, 153 A.3d
379, 381 (Pa. Super. 2016) (citation omitted).
notice of a claim has been given as required by § 501 of
the Mechanics' Lien Law, 49 P.S. § 1501, the lien is
perfected by filing the claim in the appropriate
prothonotary's office pursuant to § 502, 49 P.S.
§ 1502. The owner may "preliminary object" to
the filing of the "claim" under Section 505 of the
Law, 49 P.S. § 1505, which provides:
Any party may preliminarily object to a claim upon a showing
of exemption or immunity of the property from lien, or for
lack of conformity with this act. The court shall determine
all preliminary objections. If an issue of fact is raised in
such objections, the court may take evidence by deposition or
otherwise. If the filing of an amended claim is allowed, the
court shall fix the time within which it shall be filed.
Failure to file an objection preliminarily shall not
constitute a waiver of the right to raise the same as a
defense in subsequent proceedings.
allows the owner to strike the lien for the above-enumerated
reasons. If the labor and material were furnished for
residential construction the owner could also claim that the
contractor or subcontractor waived his right to file such a
lien. See 49 P.S. § 1401.
while the filing gives the contractor an in rem lien
for the materials and labor that were expended under contract
for the owner, it does not give the contractor the right to
execute against the property to collect those debts or to
keep that lien in force "forever." To be able to
maintain and collect against the lien, the contractor must
bring an action pursuant to Section § 701 of the Law, 49
P.S. § 1701, to enforce the lien. 49 P.S. § 1701(a)
also provides that practice and procedure to obtain judgment
upon a claim shall be in accordance with the Pennsylvania
Rules of Civil Procedure. See Pa.R.C.P. 1651 et
seq. Section 505 authorizes the owner to
raise the failure to perfect the lien in compliance with the
Mechanics' Lien Law as a defense to that
action must be filed by the contractor within two years of
the filing of the lien. See 49 P.S. 1701(b). If the
action is not brought within two years, the lien will be
stricken. If brought within that time period, the end result
of the enforcement action is that the lien will be sustained,
reduced or, if unsubstantiated, stricken. In short, it will
end the matter.
at any time after the filing of the lien, the owner can
compel, by praecipe, the contractor to file a complaint
within twenty days after service of the rule or be forever
barred from enforcing the lien. See Pa.R.C.P. 1659.
If the contractor fails to file the complaint, judgment for
the owner will be entered resulting in the striking of the
the above, an owner who desires to challenge the perfection
of the lien or the ability of the contractor to file the lien
must do so by filing a preliminary objection to the claim
under Section 505 of the Mechanics' Lien Law. Because
Section 505 statutory preliminary objections are governed by
the Mechanics' Lien Law itself, not the Rules of Civil
Procedure, Section 505 preliminary objections do not have to
be filed within twenty days like those to a normal civil
complaint. Moreover, any defenses authorized by Section 505
but not raised by statutory preliminary objections are not
waived and may be used a defense in subsequent proceedings.
does not mean, though, that Section 505 preliminary
objections can be filed at any time to the claim; after all,
they are denominated as "preliminary." Given the
Mechanics' Lien Law's statutory scheme that governs
leading to final resolution in the § 1701 enforcement
action, Section 505 can properly be construed as providing
that if one of the specified defenses has not been raised
"preliminary" by the time a § 1701 enforcement
action has been filed to obtain judgment on the claim, but
the owner desires to assert a Section 505 defense, it has to
be raised in the enforcement proceeding in accordance with
the manner provided for in the applicable rules of civil
procedure. If it does not do so, then the claim is
this case, the lack of service defense to the claim was not
raised by preliminary objection or new matter as required
under the Rules of Civil Procedure in the enforcement
proceeding. Instead, the Owners filed their Section 505
preliminary objections in the form of a motion to dismiss
over five years after the claim was filed and over three
years from commencement of the enforcement proceedings. Under
these circumstances, Owners' motion to strike was
untimely and the issue was waived.