Babich, T. v. Buffalo Wild Wings
122 WDA 2016
| Pa. Super. Ct. | Jan 18, 2017Background
- Buffalo Wild Wings contracted Horizon Retail Construction for renovations; Horizon subcontracted plumbing work to Ted Babich.
- Babich alleges he is owed $24,798 for labor and materials and sent a notice of intent to file a mechanics’ lien to Buffalo Wild Wings’ corporate office by first‑class mail on September 11, 2014.
- Babich filed a mechanics’ lien claim on October 3, 2014; Buffalo Wild Wings filed preliminary objections asserting defective notice/service and lack of an affidavit of service.
- The trial court sustained the preliminary objections, struck the original lien and complaint, and granted Babich leave to amend; Babich (with counsel) filed amended pleadings that repeated the same service defects.
- The trial court again sustained preliminary objections and struck the amended complaint and lien; Babich appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Babich’s notice satisfied Mechanics’ Lien Law service requirements | Babich contends his mailed notice (and amended filings) substantially complied with the statute | Buffalo Wild Wings argues service must be by sheriff (or, if impossible, by posting) and Babich’s mail service and lack of sheriff affidavit are insufficient | Court held service was defective: statute requires personal service by sheriff when practicable; mailing did not satisfy §1502(c) and no affidavit was filed |
| Whether substantial‑compliance doctrine excuses defective service | Babich argues substantial compliance should apply to cure defects | Buffalo Wild Wings contends substantial compliance cannot cure lack of actual personal service | Court held substantial compliance applies only to form defects, not to defective actual service; thus it does not excuse failure to obtain sheriff service or post notice |
| Whether dismissal without further leave to amend was an abuse of discretion | Babich argues the court should allow amendment if there is reasonable possibility of cure | Buffalo Wild Wings notes Babich already had opportunity and again failed to effect proper service | Court held no abuse: plaintiff had been given opportunity (and counsel) and record showed no reasonable possibility another amendment would cure lack of statutory service |
Key Cases Cited
- Wendt & Sons v. New Hedstrom Corp., 858 A.2d 631 (Pa. Super.) (standard for sustaining preliminary objections in mechanics’ lien cases)
- Regency Investments, Inc. v. Inlander Ltd., 855 A.2d 75 (Pa. Super.) (service under §1502(c) must be personal by sheriff when practicable; posting permitted only if personal service cannot be made)
- Clemleddy Construction Inc. v. Yorston, 810 A.2d 693 (Pa. Super.) (interpreting §1502(c) and linking mechanics’ lien notice service to Rule 400 sheriff service requirement)
- Juszczyszyn v. Taiwo, 113 A.3d 853 (Pa. Super.) (leave to amend analysis: amendment permitted when reasonable possibility of cure exists)