J-A26004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TED BABICH,                                          IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                          Appellant

                     v.

BUFFALO WILD WINGS,

                          Appellee                        No. 122 WDA 2016


              Appeal from the Order Entered December 17, 2015
             In the Court of Common Pleas of Washington County
                      Civil Division at No(s): 2014-6092


BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JANUARY 18, 2017

      Appellant, Ted Babich, appeals from the December 17, 2015 order

sustaining the preliminary objections of Appellee, Buffalo Wild Wings, and

striking Appellant’s amended complaint and mechanics’ lien.            After careful

review, we affirm.

      We glean the following facts from the record:            In 2014, Appellee

contracted    with   a    general     contractor,   Horizon   Retail   Construction

(“Horizon”), to perform renovations to its property located at 50 Old Mill

Boulevard in Washington, Pennsylvania.              Horizon subcontracted certain

plumbing work in connection with the renovations to Appellant.            Appellant

claims that he is still owed a balance of $24,798.00 for labor and materials

furnished to Appellee.      Thus, on September 11, 2014, Appellant sent a

notice of intent to file a mechanics’ lien to the corporate office of Appellee
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via regular United States mail.           On October 3, 2014, Appellant filed a

mechanics’ lien claim against Appellee in the Court of Common Pleas of

Washington County, which was docketed as Civil Action No. 2014-6092. On

January 29, 2015, Appellee filed preliminary objections to the mechanics’

lien claim and complaint, asserting that Appellant failed to comply with

notice and service requirements. By memorandum opinion and order dated

June 12, 2015, the trial court sustained the preliminary objections and

struck the mechanics’ lien claim and complaint. Appellant was granted 30

days to file an amended claim.1

        On July 10, 2015, Appellant filed both an amended mechanics’ lien

claim and an amended complaint to enforce the claim. Appellee timely filed

preliminary objections to both pleadings, again based on defective service.

Following briefing and argument, the trial court issued a memorandum

opinion and order dated December 17, 2015 (“12/17/15 Opinion”),

sustaining     Appellee’s    preliminary       objections   and   striking   Appellant’s
____________________________________________


1
    As noted by the trial court in its Pa.R.A.P. 1925(a) opinion:

        At the time of the filing of the original complaint and for the
        pendency of the first set of preliminary objections, [Appellant]
        was proceeding in his capacity as a pro se litigant. The [c]ourt
        permitted him leave to amend so that he could procure the
        services of an attorney and contemplate any available cure to his
        complaint.

Trial Court Opinion (“TCO”), 3/17/16, at 2. Appellant did obtain counsel
before the filing of his amended mechanics’ lien and amended complaint and
is still represented by said counsel herein.



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amended mechanics’ lien claim and amended complaint.          Appellant timely

filed a notice of appeal on January 19, 2016, and now presents the following

issues for our review:

      1. Whether the trial court erred in sustaining [Appellee’s]
         preliminary objections to the legal sufficiency of [Appellant’s]
         claim for failure to conform to law?

      2. Whether the trial court erred in striking [Appellant’s]
         Amended Complaint and mechanics lien claim in the entirety
         without providing [Appellant] with leave to amend the
         pleading?

Appellant’s Brief at 2.

      Before addressing the merits of Appellant’s claims, we note our

standard of review. It is well-established that,

      [i]n determining whether the trial court properly sustained
      preliminary objections, the appellate court must examine the
      averments in the complaint, together with the documents and
      exhibits attached thereto, in order to evaluate the sufficiency of
      the facts averred.

      Our inquiry goes only to determining the legal sufficiency of
      appellant’s complaint and we may only decide whether sufficient
      facts have been pleaded which would permit recovery if
      ultimately proven. We must be able to state with certainty that
      upon the facts averred, the law will not permit recovery by the
      plaintiff.

      This Court will reverse the trial court’s decision only where there
      has been an error of law or abuse of discretion. Further, when
      the sustaining of preliminary objections results in the denial of a
      claim or the dismissal of a suit in a mechanics’ lien proceeding,
      preliminary objections should be sustained only where the case
      is clear and doubtless.

Wendt & Sons v. New Hedstrom Corp., 858 A.2d 631, 632 (Pa. Super.

2004) (internal quotation marks and citations omitted).



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      Here, Appellant claims that he properly served Appellee with effective

notice of his intention to file a mechanics’ lien for the amount owed to him

by Appellee.   Appellant’s Brief at 5-6.   In the alternative, Appellant urges

this Court to apply the doctrine of substantial compliance and to find

Appellant in substantial compliance with the notice requirements of the

Mechanics’ Lien Law.         Id.   Thus, to begin, we examine the notice

requirements of Pennsylvania’s Mechanics’ Lien Law, which provides, in

relevant part, as follows:

      § 1502. Filing and notice of filing of claim

      (a)   Perfection of Lien.      To perfect a lien, every claimant
            must:

      (1)   file a claim with the prothonotary as provided by this act
            within six (6) months after the completion of his work; and

      (2)   serve written notice of such filing upon the owner within
            one (1) month after filing, giving the court, term and
            number and date of filing of the claim. An affidavit of
            service of notice, or the acceptance of service, shall be
            filed within twenty (20) days after service setting forth the
            date and manner of service. Failure to serve such notice
            or to file the affidavit or acceptance of service within the
            times specified shall be sufficient ground for striking off the
            claim.

                                       …

      (c)   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 public part of the
            improvement.

49 P.S. § 1502.




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        As we explained in Regency Investments, Inc. v. Inlander Ltd.,

855 A.2d 75 (Pa. Super. 2004), this Court has long interpreted the language

of Section 1502(c) to mean that service of a notice of filing a claim under

Pennsylvania’s Mechanics’ Lien Law must be made “in person by the sheriff

to the extent practicable.”        Id. at 78 (quoting Clemleddy Construction

Inc. v. Yorston, 810 A.2d 693, 696 (Pa. Super. 2002)) (emphasis added). 2

“Once the claimant establishes that personal service has not been
____________________________________________


2
    We elaborated:

        The statutory language supports our interpretation. Section
        1502(c) requires service to “be made by an adult in the same
        manner as a writ of summons in assumpsit.” 49 P.S. § 1502(c).
        The Pennsylvania Rules of Civil Procedure recognize claims
        asserted in assumpsit to be civil actions. See Pa.R.C.P. 1001 ….
        Consequently, a writ of summons in assumpsit must be served in
        the same manner as service of process in a civil action.

        Service of process in a civil action is prescribed by Rule 400 of
        the Pennsylvania Rules of Civil Procedure. See Pa.R.C.P. 400.
        It states, in pertinent part:

          Rule 400. Person to Make Service

          Except as provided in subdivions (b) and (c) and in Rules
          400.1 and 1930.4, original process shall be served
          within the Commonwealth only by the sheriff.

        Pa.R.C.P. 400(a) (emphasis added).

        Consequently, we interpret Section 1502(c)’s requirement of
        personal service to “be made by an adult in the same manner as
        a writ of summons in assumpsit” to mean that the notice of filing
        of claim in a mechanic’s lien case must be served by the sheriff.
        See 49 P.S. § 1502(c).

Id. at 78-79 (quoting Clemleddy, 810 A.2d at 696-697).



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successfully effectuated, the statute expressly permits posting as an

alternative method of service.”       Id. at 78 (citing 49 P.S. § 1502(c)).

Moreover, we have held that “[t]o protect a Mechanics’ Lien, it is essential to

adhere strictly to the statutory notice requirements.” Id. at 79 (emphasis

added).

      In 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).

See 12/17/15 Opinion at 3.         Instead, Appellant only sent the notice by

United States, first class mail.   See id.   Additionally, the trial court noted

that Appellant failed to file an affidavit of service. Id. After careful review

of the record, we discern no abuse of discretion by the trial court and deem

Appellant’s claims to be wholly without merit.

      Despite his non-compliance with the statutory service requirements,

Appellant urges this Court to apply the doctrine of substantial compliance.

However, this doctrine does not apply where the actual service of notice, as

here, is defective. Rather, “substantial compliance applies only to a defect

in the ‘form’ of the notice.” Regency, 855 A.2d at 79.       This   Court   has

previously emphasized that:

      The Mechanics’ Lien statute provides an expeditious method to
      obtain a lien at very little cost to the claimant. Therefore, it is
      the claimant’s principal responsibility to ensure timely service of
      the claim. If a Mechanics’ Lien claim is not timely perfected,
      however, the claimant still has an adequate remedy in a suit for
      monetary damages arising out of a breach of contract. The
      advantage of a Mechanics’ Lien is that the lien takes effect
      sooner and assumes priority over other liens. By contrast, a
      judgment lien takes effect and priority on the date of entry of

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      judgment. Thus, a claimant who desires a Mechanics’ Lien must
      be vigilant in adhering to the service requirements in the statute.

Id. at 80.

      Moreover, we note that in the event that personal service cannot be

made, the Mechanics’ Lien statute provides for alternative service. See 49

P.S. § 1502(c) (allowing notice to be served by posting upon conspicuous

public part of the improvement). Thus, Appellant simply needed to instruct

the Sheriff to post notice, had he attempted to obtain personal service on

Appellee and failed. However, based on our review of the record, it appears

that Appellant never attempted to obtain personal service on Appellee in

compliance with the requirements of 49 P.S. § 1502, nor did he utilize this

alternative statutory service provision.    We agree with the trial court that

Appellant’s efforts at service “were, at best, minimally compliant with

statutory requirements.” 12/17/15 Opinion at 5.

      Next, Appellant argues that the trial court abused its discretion by

dismissing his amended complaint without leave to amend to address the

purported service deficiencies.    Appellant’s Brief at 7-8.    In support of his

argument, Appellant suggests that “[s]o long as there exists ‘some

reasonable possibility’ that amendment can be accomplished, the trial court

should not dismiss the complaint.”         Id. at 7 (quoting Juszczyszyn v.

Taiwo, 113 A.3d 853, 856 (Pa.Super. 2015)). However, the trial court has

already provided Appellant with ample opportunity to amend his original

complaint    to   demonstrate     compliance   with   the      applicable   service

requirements, and Appellant failed to do so.

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       Based on our review of the record, we agree with the trial court’s

conclusion that there is no “reasonable possibility” that another amended

pleading will resolve the service deficiencies.   The record is devoid of any

proof that Appellant ever made any attempt to obtain service on Appellee in

compliance with 49 P.S. § 1502(c). Moreover, even after obtaining counsel,

Appellant’s amended complaint suffered the same service defects as his

original complaint.   “As [Appellant] could not cure his minimal compliance

with   the   statutory provisions   on   service, the   [c]ourt dismissed his

complaint.” TCO at 2. We discern no error of law or abuse of discretion by

the trial court.

       In light of the foregoing, the trial court’s order sustaining Appellee’s

preliminary objections and dismissing Appellant’s amended complaint and

mechanics’ lien is affirmed.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/18/2017




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