On July 19, the Pennsylvania Superior Court handed down a 2-1 opinion, addressing the rule governing the filing of preliminary objections to a mechanics’ lien, specifically when objecting to the failure to file an affidavit of service. In Terra Firma Builders v. King, 2019 PA Super 219 No, 2593 EDA 2018 (hereinafter Terra Firma Builders), the majority ruled that even though the statute in question must be strictly and narrowly construed, the owners of real estate waived their right to file preliminary objections, in spite of the contractor’s failure to comply with the statute’s service provisions.

Factually, the contractor filed a $131,123.24 lien against a residence on Feb. 20, 2013, timely filing an affidavit of service as required by 49 P.S. Section 1502 (perfection of lien). Shortly thereafter, the contractor filed a praecipe to withdraw the lien, choosing to re-file the identical lien roughly one month later, to which a new docket number was assigned in Delaware County. However, the contractor failed to file the affidavit of service on this second filing, in contravention of the Mechanics’ Lien Law. Section 502 of the law provides, in pertinent part: “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.” Critically, owners never filed preliminary objections to the claim on the basis of contractor’s failure to file an affidavit of service. Furthermore, owners did not file preliminary objections to the complaint to enforce the lien and never raised the failure to file an affidavit of service as a defense in the litigation.