Daniel Michelmore | Tucker Arensberg
The Pennsylvania Mechanics’ Lien Law is a highly technical statute with draconian consequences for noncompliance. Nowhere is this more apparent than in its provisions governing service of process. “Service requirements under Pennsylvania’s Mechanics’ Lien Law are strictly construed such that a complaint will be stricken if the statutory service requirements are not met.” Regency Invs., Inc. v. Inlander Ltd., 2004 Pa. Super 274, P6, 855 A.2d. 75, 77 (Pa. Super. 2004). In other words, if there is a defect in service, it cannot be cured like it can in most civil actions. Instead, defective service renders the lien claim invalid.
The problem, of course, is that the Lien Law’s service requirements are not always clear, and this is particularly true when it comes to serving out-of-state defendant property owners.
The Lien Law’s service provision is outlined in Section 502, which provides that “[s]ervice of the notice of filing of claim shall be made by an adult in the same manner as a writ of summons in assumpsit.]” 49 P.S. § 1502(c). This provision thus requires satisfaction of two (2) separate elements: First, service must be made “by an adult,” and second, that adult must serve notice “in the same manner as a writ of summons in assumpsit.”
As to the first element, courts have construed the words “by an adult” to require personal service–i.e. hand delivery–and have rejected the contention that it extends to certified mail. John A. O’Connor Co., Inc. v. Hansen, 48 Pa. D & C.2d 398 (C.C.P. Bucks Co. 1969) (rejecting as “spurious” the argument that the postman delivering notice by certified mail constitutes service “by an adult”).
And as for the second, courts have ruled that since claims in assumpsit are civil actions, Pa.R.C.P. 1001, service of lien claims is therefore governed by the Pennsylvania Rules of Civil Procedure governing service of civil actions. Clemleddy Construction Inc. v. Yorston, 2002 Pa. Super. 342, 810 A.2d 693, 696-97 (Pa. Super. 2002). For in-state defendant property owners, this means that personal service will be provided by the sheriff. Id. at 697; Pa.R.C.P. 400(a) (“[O]riginal process shall be served within the Commonwealth only by the sheriff.”).
But what about out-of-state defendant property owners? They cannot be personally served by a Pennsylvania sheriff, whose jurisdiction is geographically limited to the county in which the sheriff serves. So we must again look to the Rules of Civil Procedure. Under the Rules of Civil Procedure, civil actions against foreign defendants can be served in their home state via hand delivery from a private process server, Pa.R.C.P. 404(1), or by certified mail, id. at 403.
Rule 404 thus presents a conflict, because it allows service on foreign defendants by certified mail, whereas the Lien Law exclusively requires personal service. And although some courts have found lien claims may be served on foreign defendants by certified mail, they have done so in only conclusory fashion, without grappling with this conflict and the Lien Law’s mandatory service “by an adult” statutory language. See Cassell Building Corporation v. Rice, 46 Pa. D. & C.3d 98 (C.C.P. Pike Co. 1986); Frangos v. Hersh, 2010 Pa. Dist. & Cnty. Dec. LEXIS 146, *13 (C.C.P. Allegheny Co. Mar. 11, 2010). Their holdings are therefore of questionable precedential value. The Lien Law must be strictly complied with, and it requires personal service by an adult, which certified mail most assuredly is not.
Given this conflict, the most prudent course is to treat service of process of mechanics’ lien claims exactly the same for both in- and out-of-state defendants. Namely, both should be personally served, by the Sheriff in Pennsylvania and by a process server outside of Pennsylvania. Doing otherwise unnecessarily puts the lien claim at risk.
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