G.E.M. Building Contractors & Developers Inc. v. Egidio's Inc.

14 Pa. D. & C.4th 609, 1992 Pa. Dist. & Cnty. Dec. LEXIS 325
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedMarch 17, 1992
Docketno. 210 of 1989
StatusPublished

This text of 14 Pa. D. & C.4th 609 (G.E.M. Building Contractors & Developers Inc. v. Egidio's Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
G.E.M. Building Contractors & Developers Inc. v. Egidio's Inc., 14 Pa. D. & C.4th 609, 1992 Pa. Dist. & Cnty. Dec. LEXIS 325 (Pa. Super. Ct. 1992).

Opinion

McCRACKEN, P.J.,

G.E.M. Building Contractors and Developers (claimant) filed a mechanics’ lien claim on November 20, 1989, against certain real property in Neshannock Township, Lawrence County, in order to obtain payment for remodeling and construction work performed on a restaurant and motel on that property owned by Egidio’s Inc. (owner). The claimant avers that it had an oral contract with the owner to remodel the buildings in connection with the planned expansion of the businesses, and that work began on August 3, 1988, but was halted when a fire destroyed the restaurant on May 7, 1989. The owner has responded with preliminary objections, asking that the claim be stricken because it was filed more than four months after the completion of the project and is thus contrary to the Mechanics’ Lien Law, and also because the complete destruction of the premises by fire precludes the possibility that a mechanics’ lien can attach to the property.

The first of these contentions is based on the section of the Mechanics’ Lien Law of 1963 that deals with the filing of claims. The Act of August 24, 1963, P.L. 1175, No. 497, Article V, section 502 (49 Pa.C.S. §1502(a)(l) reads, “To perfect a lien, every claimant must file a claim with the prothonotary as provided by this act within four months after the completion of his work.” It is well settled that the provisions of this law, because they provide a unique statutory remedy for a particular class of creditors, must be construed strictly. Yellow Run Coal Co. v. Yellow Run Energy Co., 278 Pa. Super. 574, 420 A.2d 690 (1980). Therefore, if the claim has not been filed within the specified time limit, it must be stricken and no lien [611]*611can attach. Russell v. Bell, 44 Pa. 47 (1862); Howell Marble and Stone Co. v. Citro, 31 Fayette L.J. 66 (1968); Modern White Manufacturing Co. v. Townsend, 116 Pitts. Leg. J. 304 (1967); Modern Woodworking Shop v. McKinney, 72 Pitts. Leg. J. 400 (1923). Furthermore “completion of the work” is defined in Article II, section 201 of the Mechanics’ Lien Law (49 Pa.CS. §1201) as, “performance of the last of the labor or delivery of the last of the materials required by the terms of the claimant’s contract or agreement, whichever last occurs.” It is, therefore, necessary to determine when the project was completed in order to decide whether the claim was timely filed.

The owner’s preliminary objections include an affidavit from the owner’s attorney stating that on July 13, 1989, he received a letter from an apparent officer of the claimant corporation in an attempt by the claimant to collect its fees. That letter, dated July 11, 1989, and attached to the preliminary objections, contains this paragraph:

“For the record, G.E.M. Inc. completed this project on or about November 16,1988, and the final payment request was submitted January 2, 1989.”

We are asked to treat this statement as an admission by the contractor that the project was finished more than four months before the filing of the lien. It is not clear, however, that the author of the letter was authorized to speak for the company on this point. This is a matter that we cannot assume, since his title and position are not indicated on the record. Nor does it follow, even if the company made the representation [612]*612in July of 1989, that it could not make a different representation in November of that year.

But even more importantly, even if we were to regard the letter as relevant and competent evidence on this point, it does not justify striking the mechanics’ lien claim. This is because a motion to strike must be based on defects in the pleading that are apparent on the record and not on evidence that is introduced merely for arguing the motion. Porter v. Arnold, 35 Del. Leg. J. 448 (1948). Since we cannot ascertain from the mechanics’ lien claim itself whether it was timely filed, we cannot decide this question on the basis of extrinsic evidence. See also Lisk Plumbing and Heating Co. Inc. v. Schons, 283 Pa. Super. 344, 423 A.2d 1288 (1981) (a defense to a mechanics’ lien complaint which is extrinsic to the complaint itself does not justify striking the lien on a preliminary objection).

This brings us to the question of whether the issue of when the work was completed can be raised by preliminary objection. The Mechanics’ Lien Act, like the Rules of Civil Procedure, permits the court, in considering a preliminary objection, to take evidence by deposition or otherwise in order to resolve an issue of fact. 49 Pa.C.S. §1505. Furthermore, the case law provides ample precedent for taking evidence on such issues. Q-Dot Inc. v. Atlantic City Electric Co., 289 Pa. Super. 155, 432 A.2d 1098 (1981); John B. Kelly Inc. v. Phoenix Plaza Inc., 249 Pa. Super. 413, 378 A.2d 363 (1977). But these cases do not deal with the situation now before us in which the validity of the lien is dependent upon the date of completion of the work, a date which the parties dispute. They involve, rather, matters such as a waiver or a no-lien [613]*613clause in the underlying contract.

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Related

Q—Dot, Inc. v. Atlantic City Electric Co.
432 A.2d 1098 (Superior Court of Pennsylvania, 1981)
Lisk Plumbing and Heating Co. v. Schons
423 A.2d 1288 (Superior Court of Pennsylvania, 1981)
Yellow Run Coal Co. v. Yellow Run Energy Co.
420 A.2d 690 (Superior Court of Pennsylvania, 1980)
John B. Kelly, Inc. v. Phoenix Plaza, Inc.
378 A.2d 363 (Superior Court of Pennsylvania, 1977)
Presbyterian Church v. Stettler
26 Pa. 246 (Supreme Court of Pennsylvania, 1856)
Wigton & Brooks's Appeal
28 Pa. 161 (Supreme Court of Pennsylvania, 1857)
Russell v. Bell
44 Pa. 47 (Supreme Court of Pennsylvania, 1863)
Linden Steel Co. v. Rough Run Mfg. Co.
27 A. 895 (Supreme Court of Pennsylvania, 1893)
Day v. Pennsylvania Railroad
73 A. 206 (Supreme Court of Pennsylvania, 1909)
Montgomery v. Keystone Fibre Co.
1 Pa. Super. 261 (Superior Court of Pennsylvania, 1896)
Tully Drilling Co. v. Shenkin
597 A.2d 1230 (Superior Court of Pennsylvania, 1991)

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Bluebook (online)
14 Pa. D. & C.4th 609, 1992 Pa. Dist. & Cnty. Dec. LEXIS 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gem-building-contractors-developers-inc-v-egidios-inc-pactcompllawren-1992.