J-A12039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NY SENIUK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CLAIRE BIRNEY,
Appellee No. 1994 EDA 2015
Appeal from the Order Entered June 16, 2015
In the Court of Common Pleas of Chester County
Civil Division at No(s): No. 2009-08887-MJ
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 11, 2016
This is an appeal from the order entered in the Court of Common Pleas
of Chester County striking Ny Seniuk’s (“Appellant”) mechanics’ lien action
for failure to timely prosecute under 49 P.S. §1701(d), infra. We affirm.
The trial court aptly summarizes the factual and procedural history of
the case sub judice as follows:
On August 7, 2009, Plaintiff [hereinafter “Appellant”] initiated
this matter by filing a mechanics’ lien claim in the amount [of]
$15,837.00.1 The mechanics’ lien was served upon Defendant
[hereinafter “Appellee”] on the same day, as reflected by the
Sheriff’s Affidavit of Service filed on August 12, 2009. In
response to a Rule to File a Complaint, Appellant filed a
Mechanics’ Lien Complaint setting forth three causes of action,
breach of oral contract, quantum meruit and book account. The
Complaint was filed under the above-captioned mechanics’ lien
term number. On September 30, 2009, Appellee filed an Answer
to the Complaint setting forth New Matter and a Counterclaim.
On October 20, 2009, Appellant filed a reply to Appellee’s New
Matter and Counterclaim and Asserted additional New Matter.2
*Former Justice specially assigned to the Superior Court.
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1
The mechanics’ lien relates to the property located
at 584 Hannum Mill Road, P.O. Box 41, Chatham,
Chester County, Pennsylvania, 19318
2
Appellee did not answer new New Matter in the
October 20, 2009 filing by Appellant.
Appellant took no further action to have the case listed for trial
until November 27, 2013. On November 27, 2013, Appellant
filed a Praecipe for Determination, as required by local rule. On
June 27, 2014, Appellant provided Court Administration with a
copy of Praecipe to List for Trial which was previously filed on
November 27, 2013.[] Subsequent to receiving a copy of
Appellant’s Praecipe to List for Trial, the case was placed on the
next civil trial list before the undersigned.
On August 11, 2014, Appellee filed a Motion to Strike Plaintiff’s
Mechanics’ Lien Claim for Failure to Comply with 49 Pa.C.S.A. §
1701(d) (hereinafter, the “Motion”) and a memorandum of law in
support thereof. On August 28, 2014, Appellant filed a Motion to
Strike Defendant’s Motion to Strike Mechanics’ Lien[] and Petition
to Confirm Discovery Closed and Defendant’s Objection to Trial
Listing as Terminated with All Such Intervening Periods Being
Attributed to Defendant’s Delay.5 On September 11, 2014,
Appellee filed a Reply to Plaintiff’s Motion to Strike Appellee’s
Motion to Strike. . . . On October 31, 2014, Appellant filed a
Motion to Reduce Time Calculations Under 49 P.S. § 1701(e) (if
Applicable) Due to Periods of Administrative Delay and for Relief
Nunc Pro Tunc.
5
Appellant asserts that Appellee’s counsel refused to
agree to certify the case as trial ready and confirm
that discovery was completed, and due to defense
counsel’s inaction the time period from April 2011 to
November 27, 2013 should be excluded from the five
(5) year time period within which a judgment on a
mechanics’ lien must be entered. Although
Appellant’s counsel believes that it is “required and is
customary in Chester County” for the parties to
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agree to certify the case as trial ready; we disagree.
The language contained in C.C.R.C.P. 249.3 is clear
and unambiguous. Nothing in this rule requires a
defendant’s consent to have a matter listed for trial.
Furthermore, even assuming Appellee did not
consent to a trial listing, that refusal did not prevent
Appellant from properly listing the matter for trial.
Accordingly, a review of the docket shows that
Appellee did not cause any delay in the prosecution
of this case.
By Order entered on June 15, 2015, the mechanics’ lien action
was stricken for Appellant’s failure to timely prosecute. On June
29, 2015, Appellant timely appealed the Court’s June 15, 2015
Order in response to which the [trial court] directed Appellant to
file of record and serve upon the [trial court] a Concise
Statement. On July 21, 2015, Appellant filed a timely Concise
Statement.
Trial Court Opinion, filed Sept. 4, 2015, at 1-2.
Appellant presents the following questions for our review:
A. Whether Judge Mahon erred in strictly construing the
Mechanic’s Lien Law by failing to take into consideration: 1)
the fact that the parties had treated the claims of the
Appellant as a claim under 49 P.S. § 1702; 2) that the Law
had been reenacted in 1963; and, 3) that delaying tactics by
Appellee’s counsel (and a further eight (8) month delay by
the Court) should have resulted in a determination that the
case should have moved forward to trial under Section 1702
of the Law or a recalculation of the time period to allow the
case to go to trial?
B. Whether Judge Mahon erroneously failed to take into
consideration that equitable arguments should be permitted—
especially where the Appellee has filed an answer to the
complaint, raised a counterclaim seeking significant damages
(greater than the initial claim) and has generally treated this
as a separate civil action not subject to any five year time
limitation—up until the time that in a “gotcha” move—when
Appellee asserted that the case was to be dismissed because
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the action was filed at the same term and number as the
mechanic’s lien and five (5) years had passed?
C. Whether Judge Mahon’s ruling erred in failing to consider the
argument for nunc pro tunc relief whereby the mechanic’s lien
could be stricken but the civil action could be filed under a
different term and number as of the date that it was initially
filed under the mechanic’s lien claim number thereby allowing
the case to proceed to trial?
D. Whether Judge Mahon’s ruling erroneously envisions no
procedure to equitably address delays in trial or deceptive
practices thereby leading to the sort of gamesmanship that
has taken place in this case and which is contrary to basic
tenets of civility in the bar and fundamental fairness?
Appellant’s brief at 4.
After careful review of the record, party briefs, and the trial court’s
Pa.R.A.P. 1925(a) opinion, we discern no error with the court’s reliance on
Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott’s
Development Company, 90 A.3d 682 (Pa. 2014) (rejecting liberal reading
of Mechanic’s Lien Law championing “spirit” of statute in favor of strict
construction where statutory language at issue clearly evinced legislative
intent) to resolve the dispositive issue in this matter.1 Specifically, Section
1701(d) of the Mechanics’ Lien Law provides:
____________________________________________
1
In this regard, we are guided by the governing standards of review
articulated in Bricklayers:
As this matter implicates an issue of statutory interpretation, our
task is to determine the will of the General Assembly using the
(Footnote Continued Next Page)
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A verdict must be recovered or judgment entered within five (5)
years from the date of filing of the claim. Final judgment must
be entered on a verdict within five (5) years. If a claim is not
prosecuted to verdict or judgment, as provided above, the claim
shall be wholly lost. Provided, however, That in either case, if a
complaint has been or shall be filed in the cause and if the cause
has been or shall be at issue, all time theretofore or thereafter
consumed in the presentation and disposition of all motions and
petitions of defendants, substituted defendants and intervenors
in the cause, and in any appeal or appeals from any order in the
cause, from the date of perfection of such appeal to the date of
return of the certiorari from the appellate court to the court of
common pleas, shall be excluded in the computation of the five
(5) year period herein provided.
49 P.S. § 1701(d).
As noted, supra, verdict was not recovered nor was judgment entered
within five years of the time in which Appellant filed his claim. Moreover, for
reasons expressed in the trial court’s opinion, we reject Appellant’s
_______________________
(Footnote Continued)
language of the statute as our primary guide.” Osprey
Portfolio, LLC v. Izett, [620] Pa. [274, 281], 67 A.3d 749, 754
(2013) (internal quotation marks omitted). See generally 1
Pa.C.S. § 1928(a) (“The object of all interpretation and
construction of statutes is to ascertain and effectuate the
intention of the General Assembly.”). When the words of a
statute are clear and precise, reviewing courts may not disregard
those words under the pretext of pursuing the “spirit” of the
enactment. See id. § 1921(b). Where, however, there is a
conflict or ambiguity, we may resort to the tools of statutory
construction. See Oliver v. City of Pittsburgh, 608 Pa. 386,
394, 11 A.3d 960, 965 (2011). In so doing, we keep in mind
that such tools are used as an aid in uncovering the intent of the
Legislature, which is always the objective in matters of statutory
construction. See Commonwealth v. Baker, 547 Pa. 214,
221, 690 A.2d 164, 167 (1997).
Id., at 39–40, 90 A.3d at 690 (footnote omitted).
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argument that the court’s computation erroneously failed to exclude delay
allegedly attributable to both Appellee and the trial court; in fact, no such
delay is apparent in the record. Accordingly, we adopt the comprehensive
and cogent analysis provided in the trial court’s Pa.R.A.P. 1925(a) opinion in
affirming the order entered below. Moreover, we direct the parties to attach
a copy of the trial court’s opinion in the event of further proceedings.
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2016
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Circulated 07/20/2016 09:40 AM
EXHIBIT
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