McCarthy v. Reese

215 A.2d 257, 419 Pa. 489, 1965 Pa. LEXIS 538

• Court: Supreme Court of Pennsylvania
• Decided: October 13, 1965
• Docket: Appeal, 49
• Status: Published

Opinions

Opinion by

Mr. Justice Cohen,

This is an appeal from an order of the lower court dismissing plaintiff-claimant’s rule to show cause why the record satisfaction of his mechanic’s lien should not be expunged. The order must be reversed.

Claimant is a general contractor who contracted to construct a building for Dale and Margaret Reese, defendant-owners. In connection with this contract claimant executed a waiver of mechanics’ liens containing a warrant of attorney. The warrant, inter alia, empowers any attorney of any court of common pleas to appear for the claimant and mark satisfied of record, at claimant’s cost, any mechanic’s lien and is expressly irrevocable.

After claimant filed his lien the owners entered a rule on claimant to issue scire facias, with which claimant complied in due course. An affidavit of defense was filed, asserting, inter alia, the waiver agreement. After a pretrial conference the parties agreed to a trial before a judge without a jury. Thereafter, an attorney who had not theretofore appeared on behalf of either party exercised the warrant of attorney contained in the waiver by entering his appearance on claimant’s behalf and marking the mechanic’s lien satisfied. In its opinion, the lower court stated that this attorney acted at the instance of a title company. It is the action of this attorney which the lower court refused to expunge from the record. From this refusal the claimant appeals.

Claimant’s right to a mechanic’s lien was asserted under and must be regulated by the Mechanics’ Lien Law of June 4, 1901, P. L. 431, as amended, 49 P.S. §1 et seq., except that matters of practice and procedure arising on or after January 1, 1964, are regulated by §§701 through 706 of the Mechanics’ Lien Law of 1963 and Pa. R.C.P. 1651 through 1660, insofar as these provisions and rules are pertinent.¹

It is clear that the right to file a mechanic’s lien may be waived by agreement between the claimant and the owner. Act of June 4, 1901, P. L. 431, §15, as amended, 49 P.S. §71. But the question here is whether the waiver may be effectuated by obtaining and exercising an irrevocable warrant of attorney to mark the claim satisfied in the event that the lien is asserted in contravention to the waiver agreement.

We have consistently held that the right to a mechanic’s lien is entirely statutory, and, therefore, not only the right itself but the method of enforcing and defending it must depend upon the statute and must be pursued in strict compliance with it. Dunham-Bush, Inc. v. Murray’s 51 Lanes, Inc., 412 Pa. 424, 194 A. 2d 887 (1963); Hiestand v. Keath, 229 Pa. 149, 78 Atl. 40 (1910); Pagnacco v. Faber, 224 Pa. 18, 73 Atl. 172 (1909); Burger v. S. R. Moss Cigar Company, 225 Pa. 400, 74 Atl. 219 (1909); Stoke & Co. v. McCullough, 107 Pa. 39 (1884). The statute prescribes not only the method by which interested parties may defeat the assertion of a mechanic’s lien, id., Act of June 4, 1901, P. L. 431, §§23, 24, 36, 49 P.S. §§133, 134, 157, but also who may do so. Pagnacco v. Faber, supra. In the case at bar, the method used by the owner-defendants to assert the waiver agreement, i.e., by way of affidavit of defense, is appropriate under the statute. Burger v. S. R. Moss Cigar Company, supra. While it is not clear whether the party who caused the exercise of the warrant of attorney had an interest in the property or proceedings sufficient under the statute to support its defending the assertion of the lien, see Pagnacco v. Faber, it is clear that the method used to defeat the lien, i.e., the exercise of an irrevocable warrant of attorney to mark the lien satisfied based upon a waiver agreement, is not permitted by the statute and, therefore, is forbidden.

We recognize that the practical purpose for effectuating the waiver by exercising a warrant of attorney to mark the claim satisfied, rather than asserting it as a mere defense, is to remove the effect of the lien while the validity of the waiver is being litigated. The statute, however, prescribes a different method for the realization of such purpose. Act of June 4, 1901, P. L. 431, §§25, 50, 49 P.S. §§135, 242.

Moreover, giving effect to an irrevocable warrant of attorney to mark a claim satisfied is tantamount to giving effect to an irrevocable warrant of attorney to confess judgment against a plaintiff. Such confessions of judgments were not permitted at common law and are not permitted by our confession of judgment statutes. Commonwealth v. Central Railroad Company of New Jersey, 358 Pa. 326, 58 A. 2d 173 (1948); Act of March 21, 1806, P. L. 558, §8, as amended, 12 P.S. §738; Act of February 24, 1806, P. L. 334, §28, as amended, 12 P.S. §739.

Order reversed.

1 The 1991 Law was repealed by §901 of the Mechanics’ Lien Law of 1963. Act of August 24, 1963, P. L. 1175, §901, 49 P.S. §1901. However, the 1963 Law did not take effect until January 1, 1964, and does not “apply to liens filed prior to said date except -with respect to tlie practice and procedure prescribed by Article VII” of the 1963 Law. Claimant’s lien was filed September 9, 1963, and, therefore, is not regulated by the 1963 Law, except insofar as Article VII of said Act is applicable. Article VII directs the Supreme Court to promulgate Rules of Civil Procedure to govern “practice and procedure to obtain judgment upon a claim filed.” Pursuant to this directive Pa. R.C.P. 1651-1660 were promulgated. Neither Article VII nor the Rules became effective until January 1, 1964. But Article VII and the Rules are applicable to matters of practice and procedure arising on or after that date under liens asserted before January 1, 1964.