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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
J-A26004-16
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.
-2-
J-A26004-16
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).
-3-
J-A26004-16
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.
-4-
J-A26004-16
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).
-5-
J-A26004-16
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
-6-
J-A26004-16
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.
-7-
J-A26004-16
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
-8-