DocketNumber: No. 02899
Citation Numbers: 368 Pa. Super. 358, 534 A.2d 122
Judges: Cercone, Montemuro, Popovich
Filed Date: 12/4/1987
Status: Precedential
Modified Date: 2/18/2022
This is an appeal challenging an order of the Montgomery County Court of Common Pleas sustaining preliminary objections in the nature of a motion to strike for failure to state a cause of action and thereby dismissing appellant’s mechanics’ lien claim and complaint in action upon that lien. We affirm.
This action arises out of a construction project. Appellee Telford Industrial Development Authority is the legal owner of the shopping center involved in the construction project. Appellee Gwynedd Pike Associates (“Gwynedd”), by virtue of an installment sales agreement, is the equitable owner of the shopping center. The P.C.M. Group, Inc.
In spite of the waiver of liens provision in the contract, on February 6,1985, appellant gave written notice to Gwynedd of his intention to file a mechanics’ lien claim in the amount of $23,313.00 representing the sum allegedly owed to him for work completed on the construction project. See 49 P.S. § 1501(b). Appellant then filed a Mechanics’ Lien Claim upon the owners of the property followed by a Complaint in Action Upon Mechanics’ Lien. In the claim, appellant asserted that he had performed his obligations under the contract with P.C.M. but that payment was still due. The trial court dismissed his complaint, finding that “while a breach by the appellees certainly may give rise to a breach of contract action ..., such a breach of contract does not affect the validity of the subcontractor’s waiver of the right to file a mechanics’ lien.” Trial Court Opinion at 6-7 (footnote omitted).
The courts of this Commonwealth have held that where a contractor executes a valid waiver of its right to file a mechanics’ lien, the validity of the waiver is not affected by the owner’s breach of contract, as long as the contractor’s promise is separate from and independent of the owner’s promise.
In Long v. Caffrey, 93 Pa. 526 (1880), our Supreme Court enforced a waiver of liens provision contained in a written agreement between plaitniff and defendant despite defendant’s breach of contract. According to the terms of the agreement, plaintiff promised to build a house for defendant, and defendant promised to make installment payments to plaintiff. The agreement also required that defendant insure the house upon completion and assign the policy to plaintiff as collateral security for the final installment payment. Notwithstanding the waiver of liens provision, plaintiff filed a mechanics’ lien when defendant failed both to pay him completely and to insure the house. Plaintiff argued that defendant’s promise both to pay and to insure the building and plaintiffs promise not to file any liens were dependent covenants and that upon defendant’s default the plaintiff could file a lien despite the waiver. The supreme court rejected the argument and enforced the waiver of liens provision, finding that “[t]he different parts of the contract are separate and independent covenants,” id. at 528.
In S.G. Purvis & Co. v. Assigned Estate of Agnes T. Brumbaugh, 8 Pa.Super. 292 (1898), this Court found Long, supra, dispositive when it enforced a waiver of liens provision against appellant-subcontractor even though the building owner had failed to make complete payment to
In the case now before us, the appellant-subcontractor executed a valid waiver of liens provision.
Accordingly, we affirm the trial court’s order sustaining preliminary objections to appellant’s mechanics’ lien claim and complaint in action upon that lien.
. Paragraph 10 of the contract between appellant and P.C.M. provided that
The subcontractor for itself, its subcontractors and all parties acting through or under it hereby convenants and agrees not to file any liens or to make any claims against the premises or any part thereof or against any improvements erected thereon, and further covenants to release and hereby does release the premises upon which the Project is located and each and every part thereof and any and all buildings that may now or hereafter be erected thereon, from any and every lien, charge or claim of any nature whatsoever that it might otherwise at any time have against the same or any part thereof, for work done or to be done or materials furnished or to be furnished or upon any other ground whatever growing out of or in any way connected with or in relation to the erection and construction of any building or buildings upon the same premises.
P.C.M. also executed a written waiver of liens with Gwynedd. Four months prior to the execution of P.C.M.'s contract with appellant, P.C.M. properly filed the waiver pursuant to 49 P.S. § 1402. Under Pennsylvania law, the written waiver between the owner and contractor, if properly filed, is binding as against a subcontractor. The P.C.M./Gwynedd contract was also incorporated into the contract between P.C.M. and appellant.
. Appellant does not contest the validity of the waiver.
. We note that the trial court states that appellant has filed a separate suit against P.C.M. and Gwynedd for breach of contract and unjust enrichment. According to the trial court, this suit is currently pending in the Montgomery County Court of Common Pleas docketed at Civil Action No. 85-09560. See Trial Court Opinion at 6 n. 4.