Serve Pennsylvania Mechanic’s Lien via Sheriff or Publicly Post It
In Pennsylvania, statute dictates a mechanic’s lien be served by a sheriff. If the sheriff is unable to serve the lien, the lien claimant has an opportunity to meet statutory requirements by posting the lien “upon a conspicuous public part of the improvement.” The Superior Court of Pennsylvania says claimants must strictly adhere to statutory requirements.
Mechanic’s Liens in Pennsylvania
(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.
“Adult in the same manner as a writ of summons in assumpsit” means sheriff. If the sheriff is unable to successfully serve the mechanic’s lien, the claimant can still meet statutory requirements, by posting a copy of the document on the jobsite.
There are several states whose statute can be quite confusing or convoluted. But, all in all, Pennsylvania’s statute is quite clear: serve the lien via sheriff or post it at the jobsite. Unfortunately, it appears this statutory requirement is frequently managed incorrectly by claimants. In fact, in May, the Superior Court of Pennsylvania heard the appeal of one subcontractor and confirmed the subcontractor failed to comply with statute.
$581,840.39 = the Cost of Failing to Properly Serve the Lien
In Forbes Excavating, LP v. Weitsman New Castle Realty, LLC, Pa: Superior Court 2018, lien claimant, Forbes Excavating, LP (Forbes) filed a lien on 10/28/2016 for a claim of $581,840.39. According to statute, Forbes need to serve the notice of filing upon the owner within 1 month from filing the lien, which would have been by 11/28/2016.
On 11/15/2016, the sheriff attempted service of Forbes’ notice upon Weitsman New Castle Realty, LLC (Weitsman). The sheriff was unable to complete service, because the individual at the address advised it was not the correct address for Weitsman.
This is a portion of text from the sheriff’s affidavit:
[Sheriff Sigler] made a diligent search and inquiry for the within named Defendant [Weitsman Realty] … but was unable to locate them… nor to ascertain the Defendant[‘s] present whereabouts, and I do therefore return the within Mechanics Lien, NOT FOUND.
The above address is Ben Weitsman of New Castle, per Ron Saley, general manager there. [Weitsman Realty] is not known there[.]
Once service failed, Forbes could have attempted service again, or it could have posted a copy of the document on the premises in plain view.
On 1/10/2017, service was attempted again, to the same address as before, and was successfully delivered to the office manager at the address.
The Battle of Complaints Ensues
As with most legal situations, there was back & forth between parties. Forbes filed suit to enforce its mechanic’s lien and in response, Weitsman contested, stating Forbes failed to comply with statute. Weitsman argued that Forbes failed to serve a copy of the lien timely and once the document was successfully served, it was given to an “individual who was not authorized to accept service” – the office manager.
Weitsman didn’t need its second argument regarding the office manager, because its first argument was more than enough for the court. However, this was not before Forbes lodged an argument that when the sheriff originally attempted service, the person at the address lied to the sheriff when stating Weitsman wasn’t located at that address.
Forbes claimed “…that Weitsman Realty’s ‘refusal to accept service on November 15, 2016 constituted valid service under Pennsylvania law’ and, thus, it properly served Weitsman Realty with timely notice of the Claim on November 15, 2016.” Forbes further argued that Weitsman was “constructively served;” however, if Forbes had wanted that argument to work, it should have filed an affidavit of service within 20 days from the attempted service of the document. At least, that was what the court said.
“This claim immediately fails because, even if the Mechanics’ Lien Law permitted the type of constructive service [Forbes] advocates, [Forbes] did not file “an affidavit of service of notice, or the acceptance of service” within 20 days of November 15, 2016.”
There are additional technicalities at play, such as when service failed, the sheriff indicated the party was “not found,” not that “service was refused,” indicating there is no way to prove the person at the address lied to or refused to avoid receiving the document. But, technicalities like this were nothing more than another proverbial nail in Forbes’ coffin.
Despite the drama with service by sheriff, Forbes did have another option: Post. Document. At. Jobsite. Forbes wasn’t without options when original service was unsuccessful, Forbes just failed to execute the options.
The Court’s Parting Advice
Statute is to be strictly interpreted & failing to follow the law means failing to secure a mechanic’s lien. Must be a painful $581,840.39 lesson.
“…this Court specifically held… the service requirements under the Mechanics’ Lien Law are not subject to the doctrine of substantial compliance — and that they must be strictly construed. Appellant’s claim to the contrary is thus meritless…”