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HomeMy WebLinkAbout2011-5233 NEELU ENTERPRISES, INC., : IN THE COURT OF COMMON PLEAS OF D/B/A KB BUILDERS, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant : : v. : NO.: 2011-5233 : ASHOK AND ASHA AGARWAL, : Owners. : MECHANICS LIEN CLAIM IN RE: PRELIMINARY OBJECTIONS TO CLAIMANT’S MECHANICS LIEN CLAIM BEFORE HESS, P.J. and MASLAND, J. OPINION and ORDER Neelu Enterprises, Inc., d/b/a KB Builders (hereinafter “Claimant”) filed a Mechanics’ Lien claim on June 23, 2011, against certain real property located at 2212 Eaglesmoor Lane, Hampden Township, Enola, PA 17025, in order to obtain payment for residential construction work performed on that property owned by Ashok and Asha Agarwal (hereinafter “Owners”). (Mechanics’ Lien Claim, filed Jun. 23, 2011). The Claimant avers that, in November of 2008, the parties entered into a Construction Agreement for the building of a residential home, a copy of which was attached to the Claim, and that Claimant did complete a substantial portion of the work, for which it received payment in the amount of $585,000. (Mechanics’ Lien Clam, filed Jun. 23, 2011). Furthermore, Claimant avers that after it began construction of the home, yet prior to its completion, the Defendant Owners informed Claimant that their Agreement was being terminated, effective immediately, and that the Owners thereafter “brought in their own subcontractors. . .” to finish the work on the new home construction. (Mechanics’ Lien Clam, filed Jun. 23, 2011). As evidence thereof, the president of Claimant’s business and the Owners signed a one page, hand-written agreement, dated December 8, 2010, whereby Claimant and Owners “acknowledged that Agarwals were terminating Neelu’s construction services and that Agarwals would be dealing with the subcontractors directly.” (Termination Agreement, Claimant’s Response, Ex. B, filed Dec. 12, 2011). As a result of the ousting, Claimant seeks the sum total of $96,000, which is based upon the denied profit remaining on the contract plus $20,000, which Claimant avers is due and owed to it for the purchase and installation of additional casement windows. Owners have responded to the Mechanics’ Lien Claim with preliminary objections, seeking, first, that the claim be stricken because it was filed more than six months after the completion of the work on the project and is thus in violation of the Mechanics’ Lien Law, and, second, that the claim be stricken because of an alleged waiver by the Claimant of its right to file a mechanics’ lien claim. (Preliminary Objections, filed Sep. 23, 2011). In their Preliminary Objections, Owners assert that the Claim is untimely because, although the Claim alleges that work was performed on the property from November 8, 2009 through January 10, 2011 by Neelu and its subcontractors, neither Claimant nor its subcontractors performed any work on the property after October of 2010. (Preliminary Objections, 10, filed Sep. 23, 2011). Owners allege that Claimant had instead resigned as general contractor for the construction work on December 8, 2010, and, as evidence thereof, the parties signed the one page, hand-written agreement, whereby Claimant and Owners “acknowledged that Agarwals were terminating Neelu’s construction services and that Agarwals would be dealing with the subcontractors directly.” (Termination Agreement, Claimant’s Response, Ex. B, filed Dec. 12, 2011). Because the Mechanics’ Lien Claim was not filed until June 23, 2011, the Owners seek a demurrer, as the claim was not filed within six months after the completion of the work performed. Pursuant to the Mechanics’ Lien Law of 1963, 49 P.S. § 1502(a)(1), in order to properly perfect a lien, a claimant must file the mechanics’ lien claim with the Prothonotary within six 2 months after the completion of the work. 49 P.S. § 1502. “Completion of the work” is defined in Article II, section 1201 of the Mechanics’ Lien Law as, “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. § 1201(8). It is well settled that the provisions of the Mechanics’ Lien Law, which provide a “special remedy in favor of a unique class of creditors,” are to be strictly construed. Yellow Run Coal Co. v. Yellow Run Energy Co., 278 Pa.Super. 574, 577, 420 A.2d 690, 692 (1980). It follows that if the claim has not been filed within the required time limit, it must be stricken and no lien can attach. Russell v. Bell, 44 Pa. 47 (1862); G.E.M. Bldg. th Contractors and Developers, Inc. v. Egidio’s Inc., 14 Pa. D. & C.4 609 (1992). It is, therefore, necessary to determine when the work on the project was completed in order to determine whether the claim was timely filed. We find that the record contains conflicting statements concerning the issue of when the work was completed by the Claimant. Under the Mechanics’ Lien Law, a trial court is empowered to supplement the pleadings when an issue of fact has been raised by preliminary objection. 49 P.S. § 1505. The relevant statute provides, in pertinent part, as follows: Any party may preliminarily object to a claim upon a showing of exemption or immunity of the property from lien, or for lack of conformity with this act. The court shall determine all preliminary objections. If an issue of fact is raised in such objections, the court may take evidence by deposition or otherwise. 49 P.S. § 1505. In the instant case, Claimant has suggested that, by and through its subcontractors, it did continue the construction work to a point where the filing of its Mechanics’ Lien claim was well within the required six month window. Conversely, the Owners rely on their own assertions and the one-page hand-written agreement, dated December 8, 2010, which indicates that after that date Owners themselves were to deal directly with any and all subcontractors regarding the 3 completion of the work, that the only work to be done by the Claimant was to obtain a final occupancy permit, which did not occur. At this point, it would be premature to rule on the Owners’ Preliminary Objections. For these reasons, a hearing will be scheduled to supplement the record in order to resolve the issue of the date the work was completed by the Claimant, and the following order will be entered: ORDER th AND NOW, this 7 day of February, 2012, consistent with the opinion filed of even date herewith, a hearing on the issue of the date of the completion of work concerning the within Mechanics’ Lien is set for Wednesday, February 29, 2012, at 3:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, ___________________________ Kevin A. Hess, P.J. 4 NEELU ENTERPRISES, INC., : IN THE COURT OF COMMON PLEAS OF D/B/A KB BUILDERS, : CUMBERLAND COUNTY, PENNSYLVANIA Claimant : : v. : NO.: 2011-5233 : ASHOK AND ASHA AGARWAL, : Owners. : MECHANICS LIEN CLAIM IN RE: PRELIMINARY OBJECTIONS TO CLAIMANT’S MECHANICS LIEN CLAIM BEFORE HESS, P.J. and MASLAND, J. ORDER th AND NOW, this 7 day of February, 2012, consistent with the opinion filed of even date herewith, a hearing on the issue of the date of the completion of work concerning the within Mechanics’ Lien is set for Wednesday, February 29, 2012, at 3:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, ___________________________ Kevin A. Hess, P.J. Lowell R. Gates, Esquire 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 For the Claimant Andrew Kravitz, Esquire 2595 Interstate Drive, Suite 101 Harrisburg, PA 17110 For the Owners :rlm