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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

Lawndale 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 June 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 “provided 
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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 that 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 the 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, 2015, 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 of 
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appellant. Niedermayer included a declaration that he 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 failure 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 material, 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 would 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 the 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 “continued 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. 
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Trial court opinion, 1/5/16 at 4-5 (citation omitted; emphasis in original).

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, provided 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?

Appellant’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. Schons, 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, 489 
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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. RonIke Foam Insulators, Inc., 393 

Pa.Super. 339, 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 error 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 mechanics’ 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, 416 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/subcontractor must be 

in strict compliance with the notice requirements of the Mechanics’ Lien 

Law.” Id. at 1052. However, while the notice and other requirements under 
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the Law are to be strictly construed, Pennsylvania courts apply the doctrine 

of substantial compliance 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 completion 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 contractor 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.
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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 detailed 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 neglected 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 not indicate in the claim of lien whether the 
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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 presumed 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 the 

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 furnished, 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 

compliance, the absence of this basic information does not indicate 
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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 sustained 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