Opinion
J-A12039-16 No. 1994 EDA 2015
08-11-2016
NY SENIUK, Appellant v. CLAIRE BIRNEY, Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 16, 2015
In the Court of Common Pleas of Chester County
Civil Division at No(s): No. 2009-08887-MJ BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
This is an appeal from the order entered in the Court of Common Pleas of Chester County striking Ny Seniuk's ("Appellant") mechanics' lien action for failure to timely prosecute under 49 P.S. §1701(d), infra. We affirm.
The trial court aptly summarizes the factual and procedural history of the case sub judice as follows:
On August 7, 2009, Plaintiff [hereinafter "Appellant"] initiated this matter by filing a mechanics' lien claim in the amount [of] $15,837.00.1 The mechanics' lien was served upon Defendant [hereinafter "Appellee"] on the same day, as reflected by the Sheriff's Affidavit of Service filed on August 12, 2009. In response to a Rule to File a Complaint, Appellant filed a Mechanics' Lien Complaint setting forth three causes of action, breach of oral contract, quantum meruit and book account. The Complaint was filed under the above-captioned mechanics' lien term number. On September 30, 2009, Appellee filed an Answer to the Complaint setting forth New Matter and a Counterclaim. On October 20, 2009, Appellant filed a reply to Appellee's New Matter and Counterclaim and Asserted additional New Matter.2
1 The mechanics' lien relates to the property located at 584 Hannum Mill Road, P.O. Box 41, Chatham, Chester County, Pennsylvania, 19318
2 Appellee did not answer new New Matter in the October 20, 2009 filing by Appellant.
Appellant took no further action to have the case listed for trial until November 27, 2013. On November 27, 2013, Appellant filed a Praecipe for Determination, as required by local rule. On June 27, 2014, Appellant provided Court Administration with a copy of Praecipe to List for Trial which was previously filed on November 27, 2013.[] Subsequent to receiving a copy of Appellant's Praecipe to List for Trial, the case was placed on the next civil trial list before the undersigned.
On August 11, 2014, Appellee filed a Motion to Strike Plaintiff's Mechanics' Lien Claim for Failure to Comply with 49 Pa.C.S.A. § 1701(d) (hereinafter, the "Motion") and a memorandum of law in support thereof. On August 28, 2014, Appellant filed a Motion to Strike Defendant's Motion to Strike Mechanics' Lien[] and Petition to Confirm Discovery Closed and Defendant's Objection to Trial Listing as Terminated with All Such Intervening Periods Being Attributed to Defendant's Delay.5 On September 11, 2014, Appellee filed a Reply to Plaintiff's Motion to Strike Appellee's Motion to Strike. . . . On October 31, 2014, Appellant filed a Motion to Reduce Time Calculations Under 49 P.S. § 1701(e) (if Applicable) Due to Periods of Administrative Delay and for Relief Nunc Pro Tunc.
5 Appellant asserts that Appellee's counsel refused to agree to certify the case as trial ready and confirm that discovery was completed, and due to defense counsel's inaction the time period from April 2011 to November 27, 2013 should be excluded from the five (5) year time period within which a judgment on a mechanics' lien must be entered. Although Appellant's counsel believes that it is "required and is customary in Chester County" for the parties to
agree to certify the case as trial ready; we disagree. The language contained in C.C.R.C.P. 249.3 is clear and unambiguous. Nothing in this rule requires a defendant's consent to have a matter listed for trial. Furthermore, even assuming Appellee did not consent to a trial listing, that refusal did not prevent Appellant from properly listing the matter for trial. Accordingly, a review of the docket shows that Appellee did not cause any delay in the prosecution of this case.
Trial Court Opinion, filed Sept. 4, 2015, at 1-2.
By Order entered on June 15, 2015, the mechanics' lien action was stricken for Appellant's failure to timely prosecute. On June 29, 2015, Appellant timely appealed the Court's June 15, 2015 Order in response to which the [trial court] directed Appellant to file of record and serve upon the [trial court] a Concise Statement. On July 21, 2015, Appellant filed a timely Concise Statement.
Appellant presents the following questions for our review:
A. Whether Judge Mahon erred in strictly construing the Mechanic's Lien Law by failing to take into consideration: 1) the fact that the parties had treated the claims of the Appellant as a claim under 49 P.S. § 1702; 2) that the Law had been reenacted in 1963; and, 3) that delaying tactics by Appellee's counsel (and a further eight (8) month delay by the Court) should have resulted in a determination that the case should have moved forward to trial under Section 1702 of the Law or a recalculation of the time period to allow the case to go to trial?
B. Whether Judge Mahon erroneously failed to take into consideration that equitable arguments should be permitted—especially where the Appellee has filed an answer to the complaint, raised a counterclaim seeking significant damages (greater than the initial claim) and has generally treated this as a separate civil action not subject to any five year time limitation—up until the time that in a "gotcha" move—when Appellee asserted that the case was to be dismissed because
the action was filed at the same term and number as the mechanic's lien and five (5) years had passed?Appellant's brief at 4.
C. Whether Judge Mahon's ruling erred in failing to consider the argument for nunc pro tunc relief whereby the mechanic's lien could be stricken but the civil action could be filed under a different term and number as of the date that it was initially filed under the mechanic's lien claim number thereby allowing the case to proceed to trial?
D. Whether Judge Mahon's ruling erroneously envisions no procedure to equitably address delays in trial or deceptive practices thereby leading to the sort of gamesmanship that has taken place in this case and which is contrary to basic tenets of civility in the bar and fundamental fairness?
After careful review of the record, party briefs, and the trial court's Pa.R.A.P. 1925(a) opinion, we discern no error with the court's reliance on Bricklayers of Western Pennsylvania Combined Funds , Inc. v. Scott's Development Company , 90 A.3d 682 (Pa. 2014) (rejecting liberal reading of Mechanic's Lien Law championing "spirit" of statute in favor of strict construction where statutory language at issue clearly evinced legislative intent) to resolve the dispositive issue in this matter. Specifically, Section 1701(d) of the Mechanics' Lien Law provides:
In this regard, we are guided by the governing standards of review articulated in Bricklayers :
As this matter implicates an issue of statutory interpretation, our task is to determine the will of the General Assembly using the language of the statute as our primary guide." Osprey Portfolio , LLC v. Izett , [620] Pa. [274, 281], 67 A.3d 749, 754 (2013) (internal quotation marks omitted). See generally 1 Pa.C.S. § 1928(a) ("The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly."). When the words of a statute are clear and precise, reviewing courts may not disregard those words under the pretext of pursuing the "spirit" of the enactment. See id. § 1921(b). Where, however, there is a conflict or ambiguity, we may resort to the tools of statutory construction. See Oliver v. City of Pittsburgh , 608 Pa. 386, 394, 11 A.3d 960, 965 (2011). In so doing, we keep in mind that such tools are used as an aid in uncovering the intent of the Legislature, which is always the objective in matters of statutory construction. See Commonwealth v. Baker , 547 Pa. 214, 221, 690 A.2d 164, 167 (1997).Id., at 39-40, 90 A.3d at 690 (footnote omitted).
A verdict must be recovered or judgment entered within five (5) years from the date of filing of the claim. Final judgment must be entered on a verdict within five (5) years. If a claim is not prosecuted to verdict or judgment, as provided above, the claim shall be wholly lost. Provided, however, That in either case, if a complaint has been or shall be filed in the cause and if the cause has been or shall be at issue, all time theretofore or thereafter consumed in the presentation and disposition of all motions and petitions of defendants, substituted defendants and intervenors in the cause, and in any appeal or appeals from any order in the cause, from the date of perfection of such appeal to the date of return of the certiorari from the appellate court to the court of common pleas, shall be excluded in the computation of the five (5) year period herein provided.49 P.S. § 1701(d).
As noted, supra, verdict was not recovered nor was judgment entered within five years of the time in which Appellant filed his claim. Moreover, for reasons expressed in the trial court's opinion, we reject Appellant's argument that the court's computation erroneously failed to exclude delay allegedly attributable to both Appellee and the trial court; in fact, no such delay is apparent in the record. Accordingly, we adopt the comprehensive and cogent analysis provided in the trial court's Pa.R.A.P. 1925(a) opinion in affirming the order entered below. Moreover, we direct the parties to attach a copy of the trial court's opinion in the event of further proceedings.
Order is AFFIRMED. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/11/2016
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