J-A17029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




____________________________________________


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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