How do Property Owners Contest a Lien? How can a Municipality Initiate Action?July 19, 2012
By Steven Miner
For an explanation of scire facias see this post.
Property Owner Contests Amount of Lien and Property Owner Initiates Action
If the property owner challenges the municipal lien, the property owner may file a notice to issue writ of scire facias. In response, a municipality must file a writ of scire facias within 15 days after the notice is filed. If the municipality does not issue the writ, upon motion, the lien is stricken by the court. If the municipality issues the writ, the case proceeds as detailed below.
Property Owner Contests Amount of Lien or Municipality Initiates Action
The municipality may pursue the writ without being prompted the property owner by filing a writ of scire facias with the Prothonotary in the Court of Common Pleas where the property is located. As I previously mentioned, the process detailed below is identical to the process where the property owner initiates the action except that in this type of case the municipality has a time limit. The writ may name any individual that has an interest in the property. The sheriff must serve the writ by hand delivering the writ to any adult found on the property. If the sheriff finds anyone in possession of the property, the sheriff may also add that adult to the writ. If no one is found on the property, the sheriff may post the writ on the public part of the subject property.
Once the writ of scire facias is served, the owner may, in response file an affidavit of defense wherein he raises all defenses that he has to the municipal claim. The lien acts as prima facie evidence of a valid claim and acts as conclusive evidence of the facts set out in the writ, except where those facts are specifically denied by the Defendant. If the defendant fails to file an affidavit of defense, the Plaintiff municipality may file for default judgment.
Once the writ is issued and the affidavit of defense is filed, the case proceeds like any other standard civil case. For example, preliminary objections, motions for summary judgment, and motions for judgment on the pleadings are all proper in writ of scire facias proceedings. If necessary, a jury trial can be held.