Re: Mechanics Lien v. Civil Action

MessageThanks very much for the feedback, Arnie. We'll check out those search requests.

Steve
  ----- Original Message -----
  From: Kogan, Arnold B.
  To: Steven J. Proctor ; Pa Bar Assoc Real Property List
  Sent: Tuesday, August 08, 2006 1:45 PM
  Subject: RE: [realproperty] Mechanics Lien v. Civil Action

  Steve, my recollection on election of remedies is that you can pursue both but in some cases if one is reduced to judgment you may be stuck as plaintiff. In banking cases I believe some of the loan documents only prohibit double recovery (double execution of judgment) and probably the courts would prevent two liens for the same transaction being imposed or grant relief by striking one upon petition by the debtor. You might be able to find a quick answer by using the following words in the PBA Insite Service: election pre/2 remed! and (district pre/1 justice or magistrate or district pre/1 judge). If you get no hits, try election pre/2 remed! alone. Since the Insite Service does not have the D.&C's back on, you may have to go to Lexis or Westlaw to pick up the common pleas cases reported in those series.

  Arnie
  Arnold B. Kogan
  Goldberg Katzman, PC
  320E Market Street, 3rd Floor
  Harrisburg, PA 17101-2225
  Phone: (717) 234-4161, Ext. 3159
  FAX: (717) 234-6808
  Email: abk_at_goldbergkatzman.com

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    -----Original Message-----
    From: realproperty-bounce_at_list.pabar.org [mailto:realproperty-bounce_at_list.pabar.org] On Behalf Of Steven J. Proctor
    Sent: Tuesday, August 08, 2006 12:27 PM
    To: Pa Bar Assoc Real Property List
    Subject: [realproperty] Mechanics Lien v. Civil Action

    I am hoping someone can save us some research on an issue I have never encountered before, for some reason.

    Contractor gets stiffed by owner, and files a mechanics lien claim in common pleas court vs. the property in question, thus effectively clouding the title. Since all the rule books say the mechanics lien claim system is not an exclusive remedy, and since the amount claimed is less than the $8000 jurisdictional limit for district justices, contractor files a civil action with the local DJ for the same amount, on the theory that's the quickest and cheapest way to obtain an immediately enforceable judgment. DJ case goes to a hearing, and (as is their wont) the DJ splits the baby and awards contractor 1/2 the amount claimed, giving no particular reason.

    Now the question is, if that award is not appealed and becomes final (or even if it is appealed and an arbitration award is entered under that docket number which doesn't match the amount of the mechanics lien filed under a different docket number), how are the differing numbers reconciled? Is the DJ (or arbitration) award in the one case res judicata as to the mechanics lien action, or does contractor have the right to another bite of the apple if he doesn't like the outcome of the civil action by filing an action to reduce the mechanics lien claim to judgment?

    Any wisdom on the subject would be much appreciated, since the commentataries I've seen seem to stop at saying such claims can be pursued on the two different tracks, without opining on the possibility of getting differing results.

    Steve

    Steven J. Proctor, Esq.
    Binder, Kalis & Proctor, P.C.
    1035 E. High St.
    Pottstown PA 19464
    610-323-6200
    Fax 610-970-2082

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Received on Tue Aug 08 2006 - 10:58:13 PDT