Time Period For The Filing Of A Mechanic’s Lien Claim

Frank Kosir, Jr., Esquire
fk@muslaw.com

Neelu Enterprises, Inc. d/b/a KB Builders v. Agarwal, 2012 PA Super 276, 2012 Pa. Super. LEXIS 4091 (2012)

 

This matter addressed the issue of whether the time period for the filing of a  mechanic’s lien claim begins to run at the initial completion of the work or at the completion of remedial work arising from the contracted-for work.  In November of 2008, Neelu Enterprises, Inc. d/b/a KB Builders (“Neelu”) entered into a Construction Agreement (the “Agreement”) with Ashok and Asha Agarwal (the “Owners”) whereby Neelu agreed to construct a residential home for the Owners on certain real property (the “Property”) situated in Hampden Township, Cumberland County, Pennsylvania, for a total consideration of Five Hundred and Eighty-Five Thousand Dollars ($585,000).  After Neelu had substantially completed the construction of the home, the Owners advised Neelu that they were terminating the Agreement.  On December 8, 2010, the parties signed a one-page handwritten agreement acknowledging the termination of the Agreement.  Thereafter, the Owners retained the services of several subcontractors to complete the construction of the home without any assistance or input from Neelu.  Neelu did, however, return to the Property on several occasions in December of 2010 and January 2011, along with its electrical and plumbing subcontractors, to address issues that the Owners had raised with regard to certain of the work performed.

 

On June 23, 2011, Neelu filed a Mechanic’s Lien claim against the Property in the Cumberland County Court of Common Pleas, alleging that it and its subcontractors had performed work at the Property from November 8, 2009 through January 11, 2011, and that it was owed One Hundred and Six Thousand Dollars ($106,000) for work completed and additional materials purchased.  In response, the Owners filed Preliminary Objections alleging, inter alia, that, as Neelu and its subcontractors had left the project on December 8, 2010, the claim was not filed within six months of the completion of the work and was therefore untimely.  The trial court sustained the Preliminary Objections and struck the lien with prejudice.

 

On appeal, the Pennsylvania Superior Court affirmed.  In issuing its ruling, the Court noted that Section 1502 of the Pennsylvania Mechanic’s Lien Law (49 P.S. § 1502) requires that a Mechanic’s Lien claimant file its claim within six months of the completion of the work from which the claim arises.  In this matter, there was no dispute that the parties had terminated their contractual relationship on December 8, 2010, or that the work from which the Mechanic’s Lien claim had arisen was completed prior to the termination date.  As such, the six-month period for filing of a Mechanic’s Lien began to run on December 8, 2010.  The court further held that, although Neelu and its subcontractors had returned to the Property in December of 2010 and January of 2011 to perform work, all of this work was remedial in nature and was performed solely for the purpose of correcting previously deficient work.  Therefore, this remedial work did not serve to extend the completion date of the work for mechanic’s lien purposes, and—as Neelu’s claim was not filed until June 23, 2011—it was untimely and properly stricken by the trial court. 

Protected Property Interest for Public Benefits Applicant

Frank Kosir, Jr., Esquire
fk@muslaw.com

McKinley vs. Housing Authority of the City of Pittsburgh, 2012 Pa. Commw. LEXIS 338 (2012)

This matter addressed the issue of whether an applicant for public benefits holds a protected property interest entitling them to judicial review of the denial of such benefits.  In 2011, Reschida McKinley (the “Applicant”) filed an application with the Housing Authority of the City of Pittsburgh (the “Authority”) seeking to participate in the Authority’s low-income public housing (“LIPH”) program.  Pursuant to Authority eligibility policy, any individual that has been convicted of certain enumerated felonies (one of which is involuntary manslaughter) is ineligible to participate in the LIPH program.  As McKinley had been convicted of involuntary manslaughter in 2002, her application was denied.  McKinley filed an appeal to the Authority, which held a grievance hearing and affirmed the denial.  McKinley then filed an appeal in the Allegheny County Court of Common Pleas, which dismissed the appeal, concluding that it lacked jurisdiction to hear the appeal.

 

On appeal, the Pennsylvania Commonwealth Court affirmed.  In issuing its ruling, the court noted that, pursuant to Section 752 of the Local Agency Law (2 Pa.C.S. § 752), a person aggrieved by any adjudication of a local agency in which that person has a direct interest shall have the right to appeal the adjudication to the appropriate court.  However, in this instance, the Applicant held no property or personal rights in the public housing for which she had applied.   Therefore, since the Applicant did not have a reasonable expectation to participate in LIPH, she was not an “aggrieved party” for purposes of Section 752 and was not entitled to due process protections inherent in the right to appeal. 

HEALTH CARE REFORM SEMINAR February 12, 2013 - What Your Business Needs to Know

 

Free Seminar - Tuesday, February 12, 2013

Are you an employer with close to 50 full-time employees?

Are you an employer with over 50 full-time employees?

 

The impact to your company will be determined by the number of full-time equivalent employees you have at your company. The penalties could range from $2000 to $3000 per employee under the "pay or play" mandate.

Please join us as we review the upcoming impact of health care reform on businesses.   

 

The government has issued proposed regulations along with questions and answers regarding which employers are subject to the "pay or play" mandate. These proposed regulations and additional guidance will develop rules for who is a full-time employee. Employers will be permitted to use periods in 2013 to determine whether an employer is subject to the "pay or play" mandate. You need to know which employees will be considered full-time employees for the "pay or play" mandate.

Learn now how to comply with the guidelines so you can determine the impact of health care reform on your business in 2014 and how to address the changes with your employees.

 

Tuesday, February 12, 2013

Registration & Hot Breakfast 8:30 am - 9:00 am Program 9:00 am - 10:30 am

 

Seminar Location - Rivers Club

301 Grant Street | One Oxford Centre, Suite 411 | Pittsburgh, PA 15219

RSVP by Friday, February 8th

rsvp@muslaw.com

 

This seminar will be hosted by Joseph A. Vater, Jr. and Jason Mettley.

 

 

Joseph A. Vater, Jr., Esquire

jav@muslaw.com

 

Since 1976, Mr. Vater has been involved in Commercial and Employment Litigation. Mr. Vater's labor and employee benefits litigation has included the defense of age, race, and sex discrimination claims, as well as litigation involving claims for benefits and breaches of fiduciary duty under ERISA. He has practiced in both the state and federal courts, as well as before state and federal agencies with jurisdiction over employment law and employee benefit issues. Mr. Vater has also litigated cases before arbitrators involving withdrawal liability under the Multiemployer Pension Plan Amendments Act.

 

 

Jason Mettley, Esquire

jm@muslaw.com

 

Jason Mettley represents employee benefit plans in all matters, including plan design and drafting, fiduciary responsibility, plan governance, and contributions collections. Mr. Mettley has litigated a broad array of ERISA cases, representing both plans and individuals. He has extensive experience working with employers and labor organizations on collectively bargained plans.

 

Pennsylvania Real Estate Seller Disclosure Law - Murder/Suicide Is A Psychological Defect

Frank Kosir, Jr., Esquire
fk@muslaw.com

Milliken v. Jacono, et al., 2012 Pa. Super 284, 2012 Pa. Super. LEXIS 4105 (2012)

 

This matter addressed the issue of whether the Pennsylvania Real Estate Seller Disclosure Law (the “Law”) (68 P.S. § 7301-7315) requires the seller of real property to disclose to prospective purchasers that a murder/suicide occurred on that property. Konstantinos Koumboulis and Georgia Koumboulis (the “Koumboulis’”) were the owners of certain real property (the “Property”) situated in Delaware County, Pennsylvania.  The Koumboulis’ died in a murder/suicide at the Property on February 11, 2006 and the Property was subsequently purchased at a September 23, 2006 real estate auction by Kathleen Jacono and Joseph Jacono (the “Jaconos.”)  The Jaconos never resided at the Property, and soon after taking title began to make arrangements to sell the Property, inquiring with the Pennsylvania Real Estate Commission as to whether the Law required disclosure of the murder/suicide to prospective purchasers.  Upon being advised that such a disclosure was not required, the Jaconos listed the Property for sale with Re/Max Real Estate and, on June 17, 2007, entered into an agreement to sell the Property to Janet S. Milliken (“Milliken”).  Simultaneous to their execution of the Agreement of Sale, the Jaconos completed a Seller Property Disclosure Statement (“Disclosure Statement”) in which they failed to disclose the murder/suicide.  A closing took place on August 10, 2007.

Several weeks after taking title, Milliken became aware of the murder/suicide and brought suit against the Jaconos and the real estate brokers involved in the transaction for their failure to disclose the murder/suicide.  Specifically, Milliken alleged that the murder/suicide constituted a material defect that negatively impacted the value of the Property and, as such, required disclosure under the Law.  The trial court, finding that a murder/suicide is not included in the list of enumerated material defects requiring disclosure pursuant to Section 7304(b) of the Act (68 P.S. § 7304(b)), concluded that a murder/suicide does not constitute a material defect and entered summary judgment for the defendants.

On appeal, the Pennsylvania Superior Court reversed and remanded the matter to the trial court for further proceedings (2011 PA Super 254, 2011 Pa. Super. LEXIS 3759 (2011)). Thereafter, the Jaconos filed a Motion for Reargument, which the Court granted, vacating its opinion.  Following reargument, the Court affirmed the trial court, concluding that a murder/suicide does not constitute a material defect requiring disclosure under the Law.  In issuing its opinion, the Court noted that Section 7304(b) of the Law sets forth a list of sixteen specific material defects requiring disclosure, and that each of these specific material defects are related to the physical structure of the home, its components, or the condition of the curtilage.  Therefore–as the fact that a murder/suicide occurred at the Property is, at most, a psychological defect, and the language of Section 7304(b) plainly establishes that the legislature did not intend for the Law to cover psychological defects–the Law did not require the Sellers to disclose that a murder/suicide had taken place on the Property.  The court further noted that requiring sellers to disclose that a murder/suicide had taken place on a particular property would create a slippery slope as to the definition of a “material defect” under the Law, potentially putting sellers in great peril if they fail to disclose any potential negative facts regarding the subject property (e.g., that a burglary occurred there several years earlier, that burglaries have occurred in the neighborhood, etc.).  The Court also questioned how recently a murder/suicide would have had to have occurred in order to require disclosure, as well as how a decrease in the monetary value of a property resulting from such an event would be accurately measured.

Non-Profit Exempt From Real Estate Tax?

In re Appeal of Dunwoody Village, 52 A.3d 408, 2012 Pa. Commw. LEXIS 195 (2012)

 

Frank Kosir, Jr., Esquire
fk@muslaw.com

This matter addressed the issue of whether a non-profit corporation that operated a continuing retirement case community qualified as an institution of purely public charity entitled to an exemption from real estate tax obligations pursuant to Article VIII, Section 2(a)(v) of the Pennsylvania Constitution. Dunwoody Village, Inc. (“DVI”) operates a continuing care retirement community on an 85.5-acre parcel of property (“Property”) situated in Newtown Township, Delaware County, Pennsylvania.  On the Property, DVI maintains 65 country houses, 174 apartments and 239 residential units. In order to be eligible to live in the residential units, an applicant is required to sign a life care contract, submit a medical application, a financial application, and pay a fee of One Thousand Dollars ($1,000.00) to be placed on a waiting list.  If an applicant is accepted, he is required to pay a one-time entrance fee, and is also required to pay a monthly rental fee.  In 2008, the non-refundable entrance fee for a couple in a 1,750 square foot, two bedroom country house was $237,000, while the entrance fee for a single person in a 420 square-foot studio apartment was $82,000.  In 2008, the monthly fees ranged from $2,203 for a studio apartment to $6,691 for a couple in two bedroom country house.  Residents are also asked to contribute to a Residents' Reserve Fund, which is used to assist those residents who can no longer afford their monthly fees.

 

In 2007, Delaware County assessed the Property at $31,000,000 for real estate tax purposes.  In response, DVI filed an appeal asserting that the Property was exempt from real estate taxation as DVI qualified as an institution of purely public charity.  The County Appeals Board held a hearing and denied the application.  On appeal, the Delaware County Court of Common Pleas affirmed concluding inter alia that, as DVI did not operate independently of profit motive, it did not qualify as a purely public charity.

 

On appeal, our Commonwealth Court affirmed.  In issuing its ruling, the court noted that, in order to qualify as an institution of purely public charity, an entity had to satisfy the five prong test established in HUP v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985) (“The HUP Test”), which provides that an entity qualifies as a purely public charity if it: (a) Advances a charitable purpose; (b) Donates or renders gratuitously a substantial portion of its services; (c) Benefits a substantial and indefinite class of persons who are legitimate subjects of charity; (d) Relieves the government of some of its burden; and (e) Operates entirely free from private profit motive.  In this matter, there was no evidence that DVI satisfied any of these requirements as: (a) DVI’s primary purpose was to lease residential space to medically and financially qualified seniors, not to benefit seniors in general, (b) it charges significant application and monthly fees, does not accept Medicare or any other government program, and makes no effort to accept applicants that cannot pay the requisite fees, (c) its services are only provided to those applicants who can afford the application and monthly fees, not an indefinite class of individuals that are legitimate subjects of charity, (d) it does not relieve the government of any burden since it does not accept those applicants who are unable to pay the requisite fees, and whose care may ultimately become the government’s responsibility, and (e) it does not operate entirely free of profit motive, as its executives’ compensation packages provide for bonuses and other related incentives tied to DVI's marketplace and/or financial performance.  For these reasons, DVI did not qualify as an institution of purely public charity, and its request for real estate tax exempt status was properly denied.

Deemed Approval Zoning Appeal

DeSantis v. Zoning Hearing Board of the City of Aliquippa, et. al, 2012 Pa. Commw. LEXIS 267 (2012)



Frank Kosir, Jr., Esquire
fk@muslaw.com

This matter addressed the issue of whether a trial court is required to conduct a de novo hearing when ruling on a zoning appeal arising from a deemed approval.  On July 22, 2010, the City of Aliquippa (“City”) filed an application with the Zoning Hearing Board of the City of Aliquippa (“Board”) seeking dimensional variances to construct a police substation on a parcel of property (“Property”) that it had leased from the Aliquippa School District.  The Board conducted a hearing on the application at which Antonietta and Marian DeSantis (“Landowners,”) owners of land adjacent to the Property, appeared in opposition to the application.  The Board failed to issue a timely decision, resulting in a deemed approval, and the Landowners appealed to the Beaver County Court of Common Pleas, which remanded the matter to the Board for the issuance of Findings of Fact and Conclusions of Law.  The Board issued the requested Findings of Fact and Conclusions of Law, concluding that the City was entitled to the requested variance and the trial court, concluding that its scope of review was limited to making a determination as to whether the Board had committed an error of law, or abused its discretion, affirmed the Board’s decision without holding a hearing, or taking any additional evidence.  The Landowners appealed, citing fourteen (14) points of error in the trial court’s determinations.

 

On appeal, our Commonwealth Court reversed.  In issuing its ruling, the court did not address any of the issues raised in the Landowners’ appeal.  Rather, the court concluded that, in ruling on an appeal from a deemed approval, it is improper for the trial court to rely upon the record or the determinations of the zoning board.  In such instances, the zoning board’s untimely decision is a mere nullity, and the trial court is required to conduct a hearing, afford the parties the opportunity to present additional evidence, and to make its own factual findings and legal conclusions.  As the trial court had failed to do so in this instance, the matter had to be remanded, and the trial court required to conduct such a hearing.

ABA Intellectual Property Roundtable - January 17, 2013

January Topic: “Yums v. Nike - Exploring the Boundaries of an IP Owner's Ability to Control the Existence of a Justiciable Case or Controversy"
 

David G. Oberdick, Esquire
ABA IP Roundtable Host
dgo@muslaw.com

Meyer, Unkovic & Scott is proud to sponsor the Pittsburgh Roundtable for the American Bar Association Intellectual Property Litigation Section. These quarterly meetings allow IP litigation practitioners to network with other attorneys and discuss topics of interest.
 

All practicing attorneys interested in intellectual property matters are invited to attend. Need not be members of the ABA IP Litigation Section.
 

Lunch will be provided by Meyer, Unkovic & Scott.

Thursday, January 17, 2013 @ 12:00 noon

Location:
Meyer, Unkovic & Scott LLP
Oliver Building, 12th Floor
535 Smithfield Street
Pittsburgh, PA 15222-2304
412.456.2800

Please RSVP by January 16, 2013 to: rsvp@muslaw.com or 412.456.4600