HomeMy WebLinkAbout97-3885 civilJOHN WALKER, t/d/b/a : IN THE COURT OF COMMON PLEAS OF
WALLCOVERINGS BY WALKER, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. NO. 97-3885 MLD
CIVIL ACTION - MECHANIC'S LIEN
KAZI FOODS, INC., :
Defendant :
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
Before HOFFER, P.J., OLER, J. and GUIDO, J.
ORDER OF COURT
AND NOW, December 31, 1998, pursuant to the Opinion filed this date,
Defendant's Preliminary Objections are hereby dismissed.
By the Court,
Jonathan P. Nase, Esquire
Charles O. Barto, Jr. and Associates
608 North Third Street
Harrisburg, PA 17101
For the Plaintiff
Michael Cherewka, Esquire
Cherewka & Radcliffe, LLP
3905 North Front Street
Harrisburg, PA 17110
For the Defendant
JOHN WALKER, t/d/b/a IN THE COURT OF COMMON PLEAS OF
WALLCOVERINGS BY WALKER, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : NO. 97-3885 MLD
: CIVIL ACTION - MECHANIC'S LIEN
KAZI FOODS, INC., :
Defendant :
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
Before HOFFER, P.J., OLER, J. and GUIDO, J.
OPINION
HOFFER, J.:
In this opinion, we address preliminary objections filed by Defendant, Kazi
Foods, Inc. The record in this case reflects the following: Defendant owns a
number of Kentucky Fried Chicken restaurants in central Pennsylvania. Plaintiff,
John Walker, t/d/b/a Wallcoverings by Walker, is a subcontractor who was
contracted to do painting and wallpapering under a general contract to repair and
remodel Kentucky Fried Chicken restaurants in Cumberland, Berks and Lancaster
Counties. Plaintiff commenced work, under the contract, in August of 1996. In
October of 1996 Plaintiff was told to stop work and to await further instructions.
Plaintiff was never recalled to complete the work under the contract.
Plaintiff gave Defendant preliminary notice of his intent to file a mechanic's
lien on March 12, 1997. Formal notice was given on May 27, 1997 and liens were
filed in Cumberland, Berks and Lancaster Counties by July 17, 1997. Plaintiff filed
97-3885 MLD
his complaint in this Court, demanding judgment on all three liens, on November.~
5, 1997. April 9, 1998, Defendant's preliminary objections were filed.
Defendant alleges in its preliminary objections that Plaintiff's mechanic's liens
should be stricken for failure to comply with the requirements of the Mechanics'
Lien Law of 1963. Defendant claims that Plaintiff failed to give timely notice of his
intent to file a claim and that the lien filed was not timely. Defendant is correct in
its assertion that strict compliance with the statutory requirements of the
Mechanics' Lien Law of 1963 is required in order for a lien to attach. See Castle
Pre-Cast Superior Walls of Delaware, Inc. v. Strauss-Hammer, 416 Pa. Super. 53,
610 A.2d 503 (1992). Defendant is mistaken in its claim that Plaintiff failed to
comply with the statutory requirements.
The Mechanics' Lien Law of 1963 states that a claim is not valid unless a
subcontractor gives an owner written preliminary notice of his intent to file a claim
"on or before the date of completion of his work," if an amount due is not paid. 49
P. S. Section 1501(a). "'Completion of the work' means performance of the last
of the labor or delivery of the last of the materials required by the terms of the
claimant's contract or agreement, whichever last occurs." 49 P. S. Section
1201(8). Subcontractors maintain the right to a lien where performance was not
completed through no fault of their own. 49 P. S. Section 1305.
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97-3885 MLD
Plaintiff was told to stop work in October of 1996. It was no fault of his own
that Plaintiff was not able to return to the site to complete the job for which he was
contracted. "Completion of the work" had not occurred when Plaintiff informed
Defendant that he intended to file a mechanic's lien if the amount due was not
paid. Plaintiff did not violate the provisions of the Mechanics' Lien Law of 1963
when he gave Defendant notice of his intent to file a lien.
For the same reasons as above, Plaintiff's liens were filed in a timely
fashion. As far as Plaintiff is concerned, work has not been completed because
he was not able to return to the sites to complete the job. The statute requires that
the lien be filed within four months of the completion of the work. 49 P. S. Section
1502(a)(1). Plaintiff filed when it became clear to him that he would not be allowed
to finish the job. Plaintiff's lien was filed in a timely fashion because it was filed
before the work that he was contracted to do was completed. Therefore,
Defendant's preliminary objections are dismissed.
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