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HomeMy WebLinkAbout2009-1172 QUALITY STONE VENEER, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 09-1172 MLD OLDE FORGE BUILDERS, INC., : Defendant : IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF’S MECHANICS’ LIEN CLAIM BEFORE HESS AND EBERT, J.J. OPINION AND ORDER Defendant, Olde Forge Builders, Inc. (“Olde Forge”), owns the parcel of land located at 1225 Summit Way, Mechanicsburg, Pa. (“Property”). Olde Forge and Plaintiff, Quality Stone Veneer, Inc. (“Quality Stone”), executed an agreement whereby Quality Stone agreed to furnish all labor and materials needed to install stone veneer on the Property. After Olde Forge failed to pay its debt for the veneer work, Quality Stone filed a Mechanics’ Lien Claim on February 26, 2009, on the Property. On April 7, 2009, Quality Stone filed a Complaint in Action Upon Mechanic’s Lien. On April 19, 2009, Olde Forge filed its Preliminary Objections to Quality Stone’s Mechanics’ Lien, alleging that Quality Stone failed to serve it with notice of its intention to file a Mechanics’ Lien, a violation of Olde Forge’s rights under 49 P.S. § 1502(a)(2). Important to this case is the distinction between “owner” and “contractor.” Under the Mechanics’ Lien Law, “owner” is defined as “an owner in fee, a tenant for life or years or one having any other estate in or title to property.” 49 P.S. 1201(3). “Contractor,” on the other hand, is defined as: NO. 09-1172 MLD one who, by contract with the owner, express or implied, erects, constructs, alters or repairs an improvement or any part thereof or furnishes labor, skill or superintendence thereto; or supplies or hauls materials, fixtures, machinery or equipment reasonably necessary for and actually used therein; or any or all of the foregoing, whether as superintendent, builder or materialman. The term also includes an architect or engineer who, by contract with the owner, express or implied, in addition to the preparation of drawings, specifications and contract documents also superintends or supervises any such erection, construction, alteration or repair. 49 P.S. § 1201(4). This distinction is of consequence. A contractor may place a lien upon an owner’s property without notice, whereas a subcontractor is required to provide an owner with written notice of his intent thirty days prior to placing a lien upon the owner’s property. 49 P.S. §§ 1301, 1501 (b.1). This statutory distinction is presumably to give owners an opportunity to contact their contractors and avoid the imposition of any encumbrance. See, e.g., Russell v. Bell, 44 Pa. 47 (1862); Giansante v. Pascuzzo, 205 Pa.Super. 28, 29, 206 A.2d 340, 342 (1965). Owen v. Johnson, 174 Pa. 99, 34 A. 549 (1896) provides useful insight to the instant case. In Owen, the defendant Johnson owned ten houses upon which the plaintiff materials provider placed a lien for plumbing materials which were installed there by Schaefer, a plumber, but not paid for. Johnson argued that by virtue of his dual status as both “contractor” and “owner,” co- defendant Schaefer’s proper classification was that of a “subcontractor,” and therefore, the plaintiff, as a materials provider to Schaefer, should not have been able to place a lien upon the defendant’s houses. Owen, 174 Pa. at 101, 34 A. at 550. The court rejected this argument, saying, “[S]uch an intervention cannot be effected by regarding Johnson in the double aspect of owner and contractor.” Owen, 174 Pa. at 102, 34 A. at 550. In Owen, the court rejected the 2 NO. 09-1172 MLD argument (made here by Olde Forge) that a contractor who also owns the property should be treated as a “contractor” for the purposes of a mechanics’ lien. As stated above, the phrase “one who, by contract with the owner, express or implied” begins the definition of “contractor” found in the Mechanics’ Lien Law. 49 P.S. § 1201(4). This construction implies that the owner and the contractor are separate entities, a proposition directly supported in L-Co Cabinet Corp. v. Summit Square Apartments, Inc., 64 Pa. D. & C.2d 528 (Lebanon Co. 1973). In L-Co Cabinet, an owner of property signed a stipulation against the filing of a mechanics’ lien with itself in two capacities, as owner and contractor, for consideration of $1. In addressing this attempt at contractually separating the dual roles of the owner and the contractor, the court said: It is fundamental that there must be at least two parties to the making of a contract, for it is a rule of the common law that no man may contract with himself. This is so even where a man is acting in more than one capacity. At law, it is not permissible for one man to deal with himself contractually in another capacity. L-Co Cabinet Corp., 64 Pa. D. & C.2d at 531, citing 1 Williston on Contracts § 18. While the defendant in this case does not purport to have a contract with himself, the fact that he could not supports the proposition that he is first and foremost the “owner” and not the “contractor.” Thus, since there is no requirement to give a thirty-day notice to an owner, it makes no sense to require the notice when the same owner claims to also be a contractor. 3 NO. 09-1172 MLD ORDER rd AND NOW, this 23 day of June, 2009, the preliminary objections of the defendant to the plaintiff’s mechanics’ lien claim are OVERRULED. BY THE COURT, ___________________________ Kevin A. Hess, J. Susan P. Peipher, Esquire For the Plaintiff Peter J. Russo, Esquire For the Defendant :rlm 4 QUALITY STONE VENEER, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 09-1172 MLD OLDE FORGE BUILDERS, INC., : Defendant : IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO PLAINTIFF’S MECHANICS’ LIEN CLAIM BEFORE HESS AND EBERT, J.J. ORDER rd AND NOW, this 23 day of June, 2009, the preliminary objections of the defendant to the plaintiff’s mechanics’ lien claim are OVERRULED. BY THE COURT, ___________________________ Kevin A. Hess, J. Susan P. Peipher, Esquire For the Plaintiff Peter J. Russo, Esquire For the Defendant :rlm