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HomeMy WebLinkAbout03-5355 MLDBRIGHTBILL INDUSTRIES, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA INTEGRITY PARTNERS, L.L.C., DEFENDANT 03-5355 MECHANICS' LIEN IN RE: PRELIMINARY OBJECTIONS TO MECHANICS' LIEN AND COMPLAINT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., February 23, 2004:-- On October 9, 2003, Brightbill Industries, Inc., filed a Notice in a Mechanics' Lien in the amount of $28,646.50 against real property owned by Integrity Partners, L.L.C. at 3335 and 3345 Market Street, Camp Hill, Cumberland County. The lien consists of labor of $12,685, materials of $14,340 and sales tax of $1,621.50. Brightbill contracted with Kamand Construction, Inc., as a subcontractor for labor and material for the construction of a bank on Integrity's property. On October 22, 2003, Brightbill filed a complaint on the mechanics' lien. On November 21, 2003, Integrity filed preliminary objections maintaining that its real property is exempt from the mechanics' lien based upon a stipulation of liens filed in the office of the Prothonotary of Cumberland County on March 12, 2003. The stipulation of liens was executed by INTEGRITY PARTNERS, L.L.C. AND KAMAND CONSTRUCTION, INC. The Mechanics' Lien Law of 1963 provides that "[a]ny party may preliminarily object to a claim upon a showing of exemption or immunity of the property from lien, or 03-5355 MECHANICS' LIEN for lack of conformity with this act." 49 P.S. § 1505. See John B. Kelly, Inc. v. Phoenix Plaza, Inc., 249 Pa. Super. 413 (1977). Preliminary objections shall be sustained on a mechanics' lien where the facts are clear and doubtless. Denlinger, Inc. v. Agresta, 714 A.2d 1048 (Pa. Super 1998). Brightbill maintains that the stipulation against liens is invalid because it was not properly indexed in the prothonotary's office. The Mechanics' Lien Law, 49 P.S. § 1402, provides: A written contract between the owner and contractor or a separate written instrument signed by the contractor, which provides that no claim shall be filed by anyone, shall be binding; but the only admissible evidence thereof, as against a subcontractor, shall be proof of actual notice thereof to him before any labor or materials were furnished by him; or proof that such contract or separate written instrument was filed in the office of the prothonotary prior to the commencement of the work upon the ground or within ten (10) days after the execution of the principal contract or not less than ten (10) days prior to the contract with the claimant subcontractor, indexed in the name of the contractor as defendant and the owner as plaintiff and also in the name of the contractor as plaintiff and the owner as defendant. The only admissible evidence that such a provision has, notwithstanding its filing, been waived in favor of any subcontractor shall be a written agreement to that effect signed by all those who, under the contract, have an adverse interest to the subcontractor's allegation. In Site Improvements, Inc. v. Central and Western Chester County Industrial Development Authority, 293 Pa. Super. 1 (1981), the Superior Court of Pennsylvania, interpreting Section 1402 of the Mechanics' Lien Law, and citing Houser v. Childs, 129 Pa. Super. 565 (1938), stated that it is incumbent upon the property owner to see that a waiver of liens agreed to between him and the contractor is properly filed and indexed. Any failure in such filing and indexing is attributable to the owner and invalidates the -2- 03-5355 MECHANICS' LIEN waiver of lien against the subcontractor. The Court noted that Section 1402 specifically provides that a waiver of liens must be indexed listing both the owner as plaintiff and the contractor as defendant as well as listing the contractor as plaintiff and the owner as defendant. The issue in Site Improvements was whether the waiver was so indexed. In the case sub judice, the stipulation of liens executed by Integrity Partners, L.L.C. and Kamand Construction, Inc., is indexed as follows: INTEGRITY PARTNERS LLC INTEGRITY PARTNERS LLC KAMAND CONSTRUCTION INC KAMAND CONSTRUCTION INC OWNER CONTRACTOR CONTRACTOR OWNER In Mele Construction Company, Inc. v. Crown American Corporation, 421 Pa. Super. 569 (1992), the Superior Court concluded that on preliminary objections to a mechanics' lien based on an exemption or immunity of property from the lien a record may be established as to any issue of fact. In the present case, by affidavit the record shows that the computer software system in the office of the Prothonotary used to access the lien index does not take punctuation. Thus, no punctuation (i.e., periods or commas) was used in the indexing of the subject lien. Entering periods and commas into the computer results in the computer showing, "No entries found." Plaintiff maintains that the designation of INTEGRITY PARTNERS LLC) and (KAMAND CONSTRUCTION INC) as cross-indexed without punctuation is an error that is attributable to Integrity. In J.H. Hommer Lumber Co., Inc. v. Dively, 401 Pa. Super. -3- 03-5355 MECHANICS' LIEN 72 (1990), the Superior Court held that a timely filed return of service by the sheriff, albeit unsworn, is substantial compliance with the Mechanics' Lien Law at 49 Pa.S.A. § 1502(a)(2). The Court stated: We are aware that the right to file a mechanics' lien is of statutory origin, that such a right was unknown to common law, and that, as class legislation, it must be strictly construed. However, we are also aware that "substantial compliance" is an important tool in determining whether a claim under the Mechanics' Lien Law will be valid. (Citations omitted.' We hold that the cross-indexing of the subject mechanics' lien that does not contain a comma after the word Partners and periods after each letter of LLC, and which does not contain a comma after the word Construction nor a period after Inc ~s in substantial compliance with Section 1402 of the Mechanics' Lien Law. Defendant should not be held accountable for any deficiency in the Cumberland County Prothonotary computer system. Notwithstanding any deficiency, the index should naturally have led an investigator to discover the stipulation against liens. Coral Gables, Inc. v. Keri, 334 Pa. 441 (1939); Stark v. Lamberton, Sheriff, 282 Pa. 219 (1925); Myer v. Fegaly, 39 Pa. 429 (1861).4 Accordingly, since the stipulation of liens Plaintiff states in its brief: There are at least two ways to correct the indexing system. First, the computer software used could be changed so that punctuation may appear in a party's name. A second way to correct the problem would be to simply include in the written instructions a sentence indicating that punctuation cannot be used. Clearly the second option could provide an "easy fix" unless and until the software is corrected. The way the computer system is designed now, however, will lead a searcher who enters a party's proper name (including punctuation) to believe that a search has been conducted and that no entries were found. -4- 03-5355 MECHANICS' LIEN is cross-indexed between the owner and contractor we will strike the mechanics' lien and dismiss plaintiff's complaint.: ORDER OF COURT AND NOW, this day of February, 2004, the mechanics' lien filed by Brightbill Industries, Inc. against Integrity Partners, L.L.C., IS STRICKEN. Plaintiff's complaint, IS DISMISSED. By the Court, Edgar B. Bayley, J. Thomas A. Beckley, Esquire Thomas S. Beckley, Esquire For Plaintiff Clayton Davidson, Esquire For Defendant Plaintiff fails to state an obvious way to have used the computer system correctly which would have been to ask an employee of the Prothonontary's Office how it operates. : This resolution makes it unnecessary to address Integrity's other preliminary objection that the claim in plaintiff's complaint for damages for sales tax, interest, costs and attorney's fees under the Contractor and Subcontractor's Payment Act, 73 P.S. Section 501 et seq., must be stricken. Because the mechanics' lien is stricken, the complaint -5- 03-5355 MECHANICS' LIEN :sal filed pursuant to Pennsylvania Rule of Civil Procedure 1653 must be dismissed. -6- BRIGHTBILL INDUSTRIES, INC., PLAINTIFF V. INTEGRITY PARTNERS, L.L.C., DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-5355 MECHANICS' LIEN IN RE: PRELIMINARY OBJECTIONS TO MECHANICS' LIEN AND COMPLAINT AND NOW, this Brightbill Industries, Inc. against Integrity Partners, L.L.C., IS STRICKEN. complaint, IS DISMISSED. BEFORE BAYLEY, J. ORDER OF COURT day of February, 2004, the mechanics' lien filed by Plaintiff's By the Court, Thomas A. Beckley, Esquire Thomas S. Beckley, Esquire For Plaintiff Clayton Davidson, Esquire For Defendant :sal Edgar B. Bayley, J.