J. S44013/16

NON
- PRECEDENTIAL DECISION
– SEE SUPERIOR COURT I.O.P. 65.37

LAWNDALE CONSTRUCTION MANAGEMENT, LLC, : : IN THE SUPERIOR COURT OF

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

Lawn dale 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 J une 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 “providedJ. S44013/16

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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 tha t 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 th e 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, 2 015, 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 ofJ. S44013/16

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appellant. Niedermayer included a declaration that h e 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 fail ure 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 mat erial, 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 wou ld 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 th e 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 “continu ed 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.J. S44013/16

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Trial court opinion, 1/5/16 at 4

- 5 (citation omitted; emphasis in origi nal).
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, provide d 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?
App ellant’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. Scho ns , 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, 489J. S44013/16

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- 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. 33 9, 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 erro r 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 mecha nics’ 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 , 41 6 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/subcontr actor must be
in strict compliance with the notice requirements of the Mechanics’ Lien

Law.” Id. at 1052. However, while the notice and other requirements underJ. S44013/16

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the Law are to be strictly construed, Pennsylvania courts apply the doctrine

of substantial c ompliance 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 com pletion 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 contra ctor 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.J. S44013/16

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- 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 deta iled 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 negl ected 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 no t indicate in the claim of lien whether theJ. S44013/16

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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 presu med 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 t he
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 furn ished, 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

comp liance, the absence of this basic information does not indicateJ. S44013/16

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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 sust ained 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