MOREHALL CONTR. CO. INC. v. Brittany Estates Limited Partnership

578 A.2d 508, 396 Pa. Super. 265, 1990 Pa. Super. LEXIS 2194

• Court: Supreme Court of Pennsylvania
• Decided: August 3, 1990
• Docket: 02649
• Status: Published

Opinions

HOFFMAN, Judge:

This appeal is from an order granting the preliminary objections in the form of a demurrer of appellee, Brittany Estates (“Brittany”), and dismissing the mechanics’ lien complaint of appellant, Morehall Contracting Co., Inc. (“Morehall”), which had been filed in connection with a contract to perform certain grading and excavation work. Appellant claims that the trial court erred in dismissing its complaint on the ground that the work appellant performed for appellee did not constitute an “improvement” to property under the Mechanics’ Lien Law of 1963.¹ For the following reasons, we agree with appellant that the trial court erred in granting Brittany’s preliminary objections, and, accordingly, we reverse the order below and remand for proceedings consistent with this opinion.

Morehall was a subcontractor to Chesterdale Construction Company, which in turn was general contractor at a construction project known as Brittany Estates. Brittany Estates is a townhouse and condominium development located in Caernarvon Township, Berks County. Morehall’s complaint alleged that, pursuant to a written contract with Chesterdale, dated September 27, 1988, Morehall performed a significant amount of construction work at the site of the development, including excavation and grading of the property in preparation for the construction of several housing units. Subsequent to its completion of work on the contract, Morehall failed to secure full payment from Brittany. Morehall therefore filed a Mechanics’ Lien Claim against Brittany on February 24, 1989. On April 10, 1989, Morehall filed a “Complaint to obtain judgment on its Mechanics’ Lien Claim”, and Brittany filed Preliminary Objections thereto on May 9, 1989. On June 9, 1989 the Court of Common Pleas issued an order sustaining Brittany’s Preliminary Objections, but permitting Morehall to file an amended complaint. On July 3, 1989, Morehall filed an Amended Mechanics’ Lien Claim and Amended Complaint. Brittany filed Preliminary Objections to the Amended Complaint on July 19, 1989. Oral argument was held on August 21, 1989, and in an order dated September 11, 1989, the court sustained Brittany’s Preliminary Objections and dismissed Morehall’s amended complaint. This timely appeal followed.

Our scope of review to a challenge to the sustaining of a preliminary objection in the form of a demurrer is well-settled:

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader’s right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629, 151 A.2d 612 (1959), and every inference fairly deducible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139 A. 492 (1927). The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. Savitz v. Weinstein, supra.

Since the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965); Savitz v. Weinstein, supra; London v. Kingsley, 368 Pa. 109, 81 A.2d 870 (1951). If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); see also Schott v. Westinghouse Electric Corp., supra [436 Pa.] at 291, 259 A.2d at 449.

Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 524-25, 543 A.2d 1092, 1093-94 (1988) (quoting County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985)).

The Mechanics’ Lien Law of 1963 provides that:

Every improvement and the estate or title of the owner in the property shall be subject to a lien, to be perfected as herein provided, for the payment of all debts due by the owner to the contractor or by the contractor to any of his subcontractors for labor or materials furnished in the erection or construction, or the alteration or repair of the improvement, provided that the amount of the claim, other than amounts determined by apportionment under section 306(b) of this act, shall exceed five hundred dollars ($500).

49 Pa.S.A. § 1301. The definitional section of the Mechanics’ Lien Law further provides, in relevant part, that:

The following words, terms and phrases when used in this act shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning:

(1) “Improvement” includes any building, structure or other improvement of whatsoever kind or character erected or constructed on land, together with the fixtures and other personal property used in fitting up and equipping the same for the purpose for which it is intended.

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(10) “Erection and construction” means the erection and construction of a new improvement or of a substantial addition to an existing improvement or any adaptation of an existing improvement rendering the same fit for a new or distinct use and effecting a material change in the interior or exterior thereof....

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(12) “Erection, construction, alteration or repair” includes:

(a) Demolition, removal of improvements, excavation, grading, filling, paving and landscaping, when such work is incidental to the erection, construction alteration or repair....

49 Pa.S.A. § 1201. This Court has noted that the definition of “erection, construction, alteration or repair” contained in § 1201(12)(a) “was intended to declare existing decisional law [allowing mechanics liens to attach] with respect to such work upon the ground ... which is incidental to the erection, construction, alteration or repair of an improvement, as compared to such work when it is performed independently of any erection, construction, alteration or repair of an improvement, in which latter case no lien is allowed.” Sampson-Miller Assoc. Cos., v. Landmark Realty Co., 224 Pa.Super. 25, 30, 303 A.2d 43, 45 (1973) (quoting Comment—Joint State Gov’t Commission, 1964 Report, 49 P.S. § 1201(1), (12)) (emphasis added).

Appellant’s Amended Complaint states, in relevant part, that:

[P]laintiff furnished labor and materials used in the erection and/or construction of an improvement, namely, a housing development known as “Brittany Estates”, in that plaintiff furnished said labor and materials to perform the following erection and/or construction, as defined in the Mechanics’ Lien Law of 1963, 49 P.S. Sec. 1201(12)(a) and/or (c): topsoil stripping; earth grading; grading for building pads, including but not limited to the sample units and sales center; construction of a temporary roadway to permit contractors’ access to complete erection and/or construction of the aforesaid sample units and sales center; and erection and/or construction of a storm detention basis and related site work necessary to and a component part of the storm sewer system of the aforesaid housing development.

See Appellant’s Amended Complaint to Obtain Judgment upon Mechanics’ Lien Claim at 2. (R. at 7). In granting appellee’s preliminary objections and dismissing appellant’s complaint, the court reasoned that appellant failed to state a claim under the Mechanics’ Lien Law because “plaintiff’s allegations of work performed consist of erosion control and of earthwork as categorized in the contract ... unrelated to the erection or construction, alteration or repair, of an improvement to property as defined in the Mechanics’ Lien Law.” See Opinion, November 9, 1989 at 5-6. More specifically, the trial court apparently held that this allegation was insufficient as a matter of law because appellant had failed to allege that: (1) the work it performed was connected to the construction of any “improvement” on the property; and (2) “improvements” in fact had been erected at Brittany Estates. See id. After carefully reviewing the record, we cannot agree that the complaint “clearly and without a doubt” failed to allege that the work performed was related to an “improvement”.

The above-quoted averments, if accepted as true (see Mudd v. Hoffman, supra), would tend to establish that appellant performed significant groundwork in preparation for the construction of housing and administrative structures in Brittany Estates. Under the language of § 1201 and Sampson-Miller, supra, if construction has actually taken place in Brittany Estates, then the groundwork that appellant performed would constitute “erection, construction, repair or alteration of an improvement” for Mechanics’ Lien purposes. The key question, then, is whether these above-mentioned factual averments show that any construction actually took place at Brittany Estates. The answer to this question is unclear because the language of the complaint gives rise to two equally plausible interpretations. The first possible interpretation is that the language above is merely a general reference to the development plan of Brittany Estates, containing no averment that structures were actually constructed on the site. This is the interpretation relied upon by the court below. The second interpretation, however, is that the language means what it literally states: i.e., that appellant performed work “used in the erection and construction of ... a housing development known as Brittany Estates.” We recognize that the court’s interpretation of the complaint is plausible, and that the complaint may not be as specific as it could, or should be. However, because reasonable minds might differ regarding the interpretation of this language, we cannot hold that appellant has “clearly and without a doubt” failed to allege sufficient facts to establish his right to relief. The trial court, therefore, erred in granting appellee’s preliminary objections and dismissing appellant’s complaint.

For the foregoing reasons, we reverse the order of the lower court and remand for proceedings consistent with this opinion.

Order reversed. Case remanded. Jurisdiction relinquished.

JOHNSON, J., files a dissenting opinion.

1 . 49 Pa.S.A. § 1101 et seq. Appellant also argues that the court below erred in dismissing its complaint because: (1) there is no statutory requirement that appellant allege that actual construction took place at Brittany Estates in order to state a claim; (2) the court failed to direct the parties to conduct discovery in order to determine whether construction had taken place at Brittany Estates; and (3) the court failed to accept photographs and affidavits documenting the progress of construction at Brittany Estates. Because of our disposition of appellant’s first claim, we need not address these issues.