TCI Construction Corp. v. Gangitano

589 A.2d 1135, 403 Pa. Super. 621, 1991 Pa. Super. LEXIS 990
CourtSuperior Court of Pennsylvania
DecidedApril 17, 1991
Docket1569 Philadelphia 1990
StatusPublished
Cited by7 cases

This text of 589 A.2d 1135 (TCI Construction Corp. v. Gangitano) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TCI Construction Corp. v. Gangitano, 589 A.2d 1135, 403 Pa. Super. 621, 1991 Pa. Super. LEXIS 990 (Pa. Ct. App. 1991).

Opinions

HESTER, Judge:

James Gangitano appeals from the April 24, 1990 judgment entered by the Court of Common Pleas of Monroe County following a jury trial. The judgment upheld a mechanics lien filed against appellant’s property by TCI Construction Corp., appellee, in the amount of $208,303. The lien, originally filed in the amount of $222,591, was for renovation work performed by appellee on a turn-of-the-century vacation residence in the Pocono Mountains owned by appellant. Appellant argues in this appeal that many of the charges that appellee sought to collect via the mechanics lien were not charges that properly were lienable. Consequently, appellant argues that the trial court erred in refusing to grant his request for remittitur. Appellant also contends that the trial court abused its discretion by not granting a continuance when trial counsel entered his appearance less than two weeks before trial. We find no merit in appellant’s arguments; accordingly, we affirm.

The record reveals the following. Appellant, a Florida resident and a New York businessman, often visited the Poconos and came upon an old home that he purchased for $100,000, which he knew would require substantial renovation. He first contracted with a local firm, Kelly, Inc., to undertake the project but problems developed with both the quality and timeliness of the work. At the time these problems developed, appellant was introduced to Joseph Campanaro, a former vice-president of appellee corporation, at a New York cocktail party. Mr. Campanaro expressed interest on behalf of appellee, a New York based firm, in expanding its work beyond the New York commercial construction field to obtain a toehold in the Pocono residential market. Initially, appellee was retained to review the work [624]*624done by Kelly, Inc. in order to render advice concerning impending litigation.

Later, appellant retained appellee to replace Kelly, Inc. as the contractor and to complete the project. Although Kelly, Inc. initially had submitted a written proposal for its project contract, appellee was retained pursuant to an oral understanding to correct and complete the project. Appellee discovered that local contractors declined to work on the project after Kelly, Inc. was replaced. Therefore, appellee informed appellant that in order for it to complete the project, it would be required to bring its own employees from New York, as well as New York contractors with whom it regularly did business in order to complete the project. Appellee also informed appellant that proceeding in this manner would require additional expenses relating to housing and feeding workers who would be away from their residences. Appellant allegedly agreed to pay these additional costs and directed appellee to proceed.

Appellant paid appellee several installments totaling $275,000 as the work progressed. He also made a number of changes in materials and details. Ultimately, appellant was displeased with the timeliness, correctness, and the cost of appellee’s work. The relationship between the parties deteriorated, and appellee stopped work. As appellee’s work on the project substantially was complete and the oral contract failed to include any prohibition against filing a mechanics lien, appellee filed a mechanics lien against the property for the costs of the labor, materials, and housing and feeding the workers minus the aforementioned payments.

Appellant retained several different attorneys to represent him during the course of this litigation. He did not contest the form of the lien, the notice provided, or the issue of whether the charges were lienable. Appellant’s sole defense to the lien was that the charges were exorbitant, insufficiently substantiated or documented, and that he should have a set-off against the lien due to defective and incomplete work. The jury credited some of the claimed [625]*625set-off but upheld most of the renovation charges. This appeal followed.

Initially, we note that a mechanics lien claim is not a common law action. In Sampson-Miller Assoc. Co. v. Landmark, 224 Pa.Super. 25-26, 303 A.2d 43, 43 (1973) (footnote omitted), we stated:

Mechanics’ liens were non-existent at common law, being purely of statutory origin. As they are in derogation of the common law and since they effectively represent a special remedy in favor of a unique class of creditors, our courts have generally reviewed such claims with a strict construction of the statute which created them. Brann & Stuart Co. v. Con. Sun Ray, Inc., 433 Pa. 574, 253 A.2d 105 (1969); McCarthy v. Reese, 419 Pa. 489, 215 A.2d 257 (1965); see Act of May 28, 1937, P.L. 1019, art IV § 58, 46 P.S. § 558.

Appellee contends initially that due to the special nature of mechanics liens under the Mechanics’ Lien Law of 1963, 49 P.S. § 1101 et seq., the only proper manner to contest whether charges are lienable was by filing preliminary objections or a demurrer to the sufficiency of the mechanics lien. Once the propriety of the lien is admitted, the only defense is in the form of a set-off since counterclaims are not permitted. It contends that since appellant did not object to the lien but merely filed an answer challenging the merits of the complaint, appellant has only the right of a set-off and has waived procedural objections regarding the legal sufficiency of the mechanics lien documentation. See Pa.R.C.P. 1032 (a party waives objections which such party should have raised in the appropriate form with certain exceptions not here applicable). Furthermore, appellee contends that appellant did not raise this specific ground of error in his motion for post-trial relief and therefore has waived this issue on appeal. See Pa.R.C.P. 227.1(b). Accordingly, appellee contends that appellant cannot now contest on appeal the issue of whether some of the charges properly were lienable.

[626]*626We do not agree that appellant has waived the issue of whether the lien improperly included charges that were unrelated to the renovation of the property and therefore unlienable by failing to file preliminary objections or demurring to the lien. By contesting the fact that the costs properly were incurred on the project in his answer to the lien, appellant also was contesting whether the costs properly could be liened. Appellant therefore would be entitled to a set-off for these charges. Appellant may have missed the opportunity to assert this affirmative legal defense to some of the charges in the lien by not challenging the lien facially or moving to strike various charges as inappropriate for a lien, but he still is permitted to challenge the validity and sufficiency of the project documentation that was submitted to the jury. In other words, appellant could attain the same end by different means. Therefore, since appellant did contest the terms and sufficiency of the contract and whether these charges properly were incurred, the issue was not waived by filing only an answer to the mechanics’ lien complaint.

Nevertheless, we agree with appellee that appellant failed to preserve properly this particular argument in his post-trial motions.

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TCI Construction Corp. v. Gangitano
589 A.2d 1135 (Superior Court of Pennsylvania, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
589 A.2d 1135, 403 Pa. Super. 621, 1991 Pa. Super. LEXIS 990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tci-construction-corp-v-gangitano-pasuperct-1991.