Serving a copy of a filed lien in Pennsylvania is no easy task. Especially when we have to rely on the sheriff's office to serve and/or post. Looking for any advice regarding best practices. Can we post a copy on the job site first, and then send the lien to be served with the sheriff as a CYA tactic? Will a court allow that? Are there any other ways to streamline the process to ensure our lien is valid?
Your question warrants a rather lengthy and detailed answer, but the short answer is that, unless you are serving filed lien claims on property owners in Philadelphia County, then utilizing the sheriff is the only permissible way to serve a filed claim on the owner of the liened property.
Pennsylvania lien claims must be filed with the Prothonotary of the County in which the
improved property is located within six months of the last day that the claimant performed contract work on the liened property. The same PA statute which sets this time limit (49 P.S. § 1502) also mandates that the claimant “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 the claim.” See https://codes.findlaw.com/pa/title-49-ps-mechanics-liens/pa-st-sect-49-1502.html.
The same chapter further requires that the claimant file an Affidavit of Service under
the same docket number as the lien claim “within twenty (20) days after service setting
forth the date and manner of service.” Levelset has a useful page on Pennsylvania Affidavits of Service here: https://www.levelset.com/mechanics-lien/pennsylvania-affidavit-of-service-of-lien-form/.
For “Manner of Service,” subsection § 1502(c) further provides that “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.” Pennsylvania Courts interpret this form of service language strictly. “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 mechanics' lien case must be served by the sheriff.” Clemleddy Constr. v. Yorston, 2002 PA Super 342, ¶ 9, 810 A.2d 693, 697. Pennsylvania Court Rule 400 requires that in all Commonwealth Courts other than Philadelphia County (which permits service
of process through a private process server), “original process shall be served within the Commonwealth only by the sheriff.” Pa. R.C.P. No. 400.
Please note that this is different then the service required by a subcontractor who wishes to serve the property owner with the Notice of Intent to lien the property, as required per 49 P.S. §1501. The “Service of notice” set forth in subchapter (d) provides that “The notice provided by this section may be served by first class, registered or certified mail on the owner or his agent or 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.” See https://codes.findlaw.com/pa/title-49-ps-mechanics-liens/pa-st-sect-49-1501.html.
A recent Pennsylvania Appeals Court case considered whether a Notice of Intent which had been sent via FedEx to the owner met the service requirement for §1501(d) and held that serving the Notice of Intent by commercial carrier was fine, admonishing the trial court to “construe liberally the rules of procedure so long as the deviation does not affect the substantial rights of the parties.” Am. Interior Constr. & Blinds Inc. v. Benjamins's Desk, LLC, 2019 PA Super 77, 206 A.3d 509, 514.
The biggest difference between the two types of service is that §1501 expressly permits service by “first class, registered or certified mail on the owner or his agent” for the Notice of Intent, while §1502(c) mandates that service of the lien claim to the owner “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.” Serving the owner of the subject property with notice of the filed lien is a critical step for the claimant, because Courts consistently find that failure to provide the owner with timely notice of the field lien claim in strict accordance with § 1502(c) constitutes a violation of the owner’s due process which requires that the lien be forfeited.