Lawndale Construction v. 1840 S. Camac

J. S44013/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
LAWNDALE CONSTRUCTION : IN THE SUPERIOR COURT OF
MANAGEMENT, LLC, : PENNSYLVANIA
:
Appellant :
:
v. :
: No. 3395 EDA 2015
1840 S. CAMAC ST. PARTNERS GP, :
LLC :
Appeal from the Order, October 2, 2015,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. June Term 2015 M0017
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016
Lawndale Construction Management, LLC (“appellant”), appeals the
order of the Court of Common Pleas of Philadelphia County that sustained
the preliminary objections of 1840 S. Camac St. Partners GP LLC
(“appellee”) and struck appellant’s mechanics’ lien.
On June 19, 2015, appellant commenced an action by filing a
mechanics’ lien which alleged that appellant began work on property located
at 1840 South Camac Street, Philadelphia, Pennsylvania (“Property”), on or
about September 2014 and which continued until at least June 15, 2015.
Appellant further alleged that it performed the work for appellee pursuant to
an agreement to construct a seven-unit planned unit development
residential building on the Property. Appellant also alleged that it “provided
J. S44013/16
substantial materials and services to construct the building . . . including
engineering, excavation, foundation, plumbing, masonry, carpentry, roofing,
windows, doors and other construction materials and services for which
[appellant] has been paid partially but not completely.” (Claim of Lien --
49 P.S. § 1503, 6/19/15 (“Lien”) at 2 ¶5.) Appellant alleged that it was due
to be paid $161,000.
On September 2, 2015, appellee preliminarily objected and asserted
that it was not the record owner of the Property and that the record owner
was 1840 S. Camac St. Partners, LP (“Partners, LP”). Appellee alleged that
Partners LP entered into a residential construction contract with appellant
where appellant was to serve as general contractor for the construction
project at the Property. Appellee alleged that appellant agreed to a waiver
of liens in the contract which was attached as an exhibit to the preliminary
objections. Appellee moved to strike the mechanics’ lien claim because of
the waiver of liens.
On September 23, 2015, appellant answered the preliminary
objections and denied that the contract attached to the preliminary
objections was the agreement to perform work at the Property and denied
that appellant executed the agreement. Appellant also asserted that it did
not execute the lien waiver. Appellant’s counsel submitted a declaration that
the purported lien waiver did not contain the signature of
Thomas Niedermayer (“Niedermayer”), president and sole member of
-2-
J. S44013/16
appellant. Niedermayer included a declaration that he did not sign the
contract and lien waiver and did not authorize anyone to sign on his behalf.
By order dated September 30, 2015 and filed October 2, 2015, the
trial court sustained the preliminary objections and struck the mechanics’
lien claim:
In the instant case, this court sustained
Appellee’s Objections and struck the lien for the
following reasons. Appellant’s claim did not state
whether the “agreement” was a written or oral
contract, and thus this court could not discern
whether Appellant’s failure to attach the claim was
due to the nature of the contract or Appellant’s own
failure to attach said contract. While it is not always
necessary that a claimant attach a contract, for
example, where the specification of the size, weight
and price of material, with averments of the kind to
be furnished, the amount due, the manner in which
such amount is made up and the date when the last
material was furnished was sufficient compliance
with the act, in the instant case, Appellant provided
nothing that would allow this court to verify the
legitimacy of its claims. Additionally, the claim did
not identify the type of contract nor provide an
agreed-upon sum pursuant to 49 P.S. § 1503(5), nor
did it provide a detailed statement of the kind and
character of the labor or materials furnished and the
prices charged for each thereof.
Finally, Appellant’s claim did not state when
the work had been completed and, in fact did not
indicate that the work was completed: the claim
stated only that the work has “continued until at
least June 15, 2015.”
Appellant did not apply for leave of court to
amend the Lien.
Consequently, the Mechanics Lien was facially
insufficient and properly stricken.
-3-
J. S44013/16
Trial court opinion, 1/5/16 at 4-5 (citation omitted; emphasis in original).
Appellant raises the following issue for this court’s review:
Did the court below err as a matter of law in striking
Appellant’s mechanics lien claim as facially deficient
when the claim set forth the existence of the
construction agreement, provided a general
description of the labor and materials furnished, set
forth the amount due and owing under the contract,
and averred that claimant’s work continued at least
until a specified date that was within six months of
the filing of the lien claim?
Appellant’s brief at 2.
In determining whether the trial court
properly sustained preliminary
objections, the appellate court must
examine the averments in the complaint,
together with the documents and
exhibits attached thereto, Witmer v.
Exxon Corp., 260 Pa.Super. 537, 394
A.2d 1276 (1978), affirmed, 495 Pa.
540, 434 A.2d 1232 (1981), in order to
evaluate the sufficiency of the facts
averred. Mar Ray, Inc. v. Schroeder,
242 Pa.Super. 14, 363 A.2d 1136
(1976). See Lisk Plumbing and
Heating Co., Inc. v. Schons, 283
Pa.Super. 344, 423 A.2d 1288 (1981)
(agreements accompanying complaint
are part of record).
Our inquiry goes only to
determining the legal sufficiency
of appellant’s complaint and we
may only decide whether
sufficient facts have been pleaded
which would permit recovery, if
ultimately proven. Gordon v.
Lancaster Osteopathic Hosp.
Ass’n., 340 Pa.Super. 253, 489
-4-
J. S44013/16
A.2d 1364 (1985). We must be
able to state with certainty that
upon the facts averred, the law
will not permit recovery by the
plaintiff.’ Berger v. Ackerman,
293 Pa.Super. 457, 459, 439
A.2d 200, 201 (1981).
Fizz v. Kurtz, Dowd & Nuss, Inc., 360
Pa.Super. 151, 153, 519 A.2d 1037,
1038 (1987). See also Valley Forge
Towers South Condominium v. Ron-
Ike Foam Insulators, Inc., 393
Pa.Super. 339, 345, 574 A.2d 641, 644
(1990), affirmed, 529 Pa. 512, 605
A.2d 798 (1992).
Guistro Development Co., Inc. v. Lee, 428
Pa.Super. 394, 399, 631 A.2d 199, 201-202 (1993).
This Court will reverse the trial court’s decision only
where there has been an error of law or abuse of
discretion. Bocchicchio v. General Public
Utilities Corp., 456 Pa.Super. 23, 26, 689 A.2d
305, 307 (1997). Further, “when the sustaining of
preliminary objections results in the denial of a claim
or the dismissal of a suit in a mechanics’ lien
proceeding, preliminary objections should be
sustained only where the case is clear and
doubtless.” Guistro Development Co., Inc.,
supra. Id. at 400, 631 A.2d at 202 (citing Castle
Pre-Cast Superior Walls of Delaware, Inc. v.
Strauss-Hammer, 416 Pa.Super. 53, 56, 610 A.2d
503, 504 (1992); Valley Forge Towers South
Condominium v. Ron-Ike Foam Insulators, Inc.,
supra).
Denlinger, Inc. v. Agresta, 714 A.2d 1048, 1050-1051 (Pa.Super 1998).
“To effectuate a valid lien claim, the contractor/subcontractor must be
in strict compliance with the notice requirements of the Mechanics’ Lien
Law.” Id. at 1052. However, while the notice and other requirements under
-5-
J. S44013/16
the Law are to be strictly construed, Pennsylvania courts apply the doctrine
of substantial compliance such that if enough appears on the face of the
statement to lead to successful inquiry, the claim may go forward. Id. at
1052-1053.
Appellant contends that the claim of lien provided the information
required by the Mechanics’ Lien Law of 1963 (“Law”).1 Appellant argues that
its claim of lien identified the contract, described the scope of work, set forth
the amount then due under the contract, and identified the time frame of
the work with sufficient specificity to demonstrate that the lien was timely
filed.
Section 503 of the Law, 49 P.S. § 1503, provides:
The claim shall state:
(1) the name of the party claimant, and whether
he files as contractor or subcontractor;
(2) the name and address of the owner or reputed
owner;
(3) the date of completion of the claimant’s work;
(4) if filed by a subcontractor, the name of the
person with whom he contracted, and the
dates on which preliminary notice, if required,
and of formal notice of intention to file a claim
was given;
(5) if filed by a contractor under a contract or
contracts for an agreed sum, an identification
of the contract and a general statement of the
1
Act of August 24, 1963, P.L. 1175, as amended, 49 P.S. §§ 1101-1902.
-6-
J. S44013/16
kind and character of the labor or materials
furnished;
(6) in all other cases than that set forth in
clause (5) of this section, a detailed statement
of the kind and character of the labor or
materials furnished, or both, and the prices
charged for each thereof;
(7) the amount or sum claimed to be due; and
(8) such description of the improvement and of the
property claimed to be subject to the lien as
may be reasonably necessary to identify them.
49 P.S. § 1503.
The claim of lien stated that appellant performed work pursuant to an
“agreement” to construct a seven-unit planned unit development residential
building. As a result of this agreement, the claim of lien states that
appellant provided substantial material and services including “engineering,
excavation, foundation, plumbing, masonry, carpentry, roofing, windows,
doors and other construction materials and services.” (Lien, at 2 ¶5.)
The trial court found that appellant did not indicate whether the
“agreement” or contract was written or oral and could not discern whether
appellant’s failure to attach the contract was because the contract was oral
or because appellant simply neglected to do so.
Although not found in the Law, Pa.R.C.P. No. 1019(h) requires that
when a claim is based upon an agreement, the pleading shall state if the
agreement is oral or written, and if written, the agreement should be
attached. Appellant did not indicate in the claim of lien whether the
-7-
J. S44013/16
agreement was oral or written. However, as appellant points out, in
Denlinger, this court held that where the lien claimant does not indicate in
the pleading whether the agreement is oral or written, it is presumed to be
oral. As a result, this court finds that the fact that a contract was not
included with the claim of lien does not necessarily mean that the claim of
lien should be stricken.
Section 503(5) of the Law, 49 P.S. § 1503(5), also provides that if the
contract is for an agreed sum, a general statement of the kind and character
of the labor or materials furnished is required. The trial court determined
that appellant failed to provide an agreed upon sum. A review of the claim
of lien confirms that. Although the claim of lien states that the amount of
$161,000 is due to be paid from the owner of the property for work
performed, the claim of lien does not indicate whether this was an agreed
upon amount in the contract. As a result, the claim of lien does not meet
the requirements of Section 503(5) of the Law.
Section 503(6) of the Law, 49 P.S. § 1503(6), provides that if there is
not a contract for an agreed upon sum, then “a detailed statement of the
kind and character of the labor or materials furnished, or both, and the
prices charged for each thereof” must be included on the statement of lien.
As the trial court noted, the claim of lien does not include this important
information. While this court is cognizant of the doctrine of substantial
compliance, the absence of this basic information does not indicate
-8-
J. S44013/16
substantial compliance with the Law. Additionally, the trial court reported
that appellant did not ask for leave of court to amend the claim of lien. The
trial court did not err when it sustained the preliminary objections on the
basis that the claim of lien did not contain the information required under
the Law.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
-9-