HomeMy WebLinkAbout2011-5233 (3)
NEELU ENTERPRISES, INC., : IN THE COURT OF COMMON PLEAS OF
d/b/a KB BUILDERS, : CUMBERLAND COUNTY, PENNSYLVANIA
Claimant :
: CIVIL ACTION – LAW
vs. : MECHANIC’S LIEN claim
:
ASHOK AGARWAL and : NO. 11-5233 CIVIL
ASHA AGARWAL, :
Owners :
IN RE: MECHANIC’S LIEN CLAIM
BEFORE HESS, P.J.
MEMORANDUM AND ORDER
Before the Court are preliminary objections to Claimant’s Mechanic’s Lien Claim. The
preliminary objections seek to strike the claim because it was filed more than six months after
the completion of the work on the project. In our opinion and order of February 7, 2012, we
observed that a ruling on the preliminary objections was premature because the record was not
clear on when work was completed in this case.
A hearing was held in this matter on February 29, 2012. After taking testimony, the
undersigned concluded that the contract between the plaintiff and defendants had terminated as
of December 8, 2010, but that in early January of 2011 plaintiff returned to the property to
observe and correct certain deficiencies. The plaintiff did not send any additional invoices to the
defendants as a result of the last visit to the property.
The issue presented in this case is whether work performed without charge to the owners,
after completion of the contract, to compensate for defective performance preserves or extends
the time for the filing of a mechanic’s lien. Our appellate courts last spoke to that issue more
than 120 years ago in Harrison et al. v. Homeopathic Hospital Ass’n. et al, 134 Pa. 558, 19 A.
804 (1890). In Harrison, after the contract was completed, the plaintiff returned to the
construction site to replace two items that were defective. The Court found that the correction of
defects did not extend the time period for the filing of a Mechanic’s Lien Claim. The antiquity
of this ruling does not appear to have diminished its validity. In fact, this same holding was
applied in a proceeding in the United States Bankruptcy Court for the Eastern District of
Pennsylvania in 1996. Specifically, in the case of In Re Abbey Downs Development
Corporation, 1996 WL 709390 (Bkrtcy. E.D.Pa.) the Chief Bankruptcy Judge cited Harrison for
the proposition that “if the work at issue ‘was substantially completed’ by an earlier date, and
work was later performed ‘merely to compensate the deficiency in the work which had been
previously done in order to make good the charges already embraced in the claim, we are of the
opinion this should not operate to extend the time for filing of the lien.’ ” Id. at 2.
In this case, it is clear that the work was “substantially completed” in early to mid
December of 2010. Accordingly, the filing of the Mechanic’s Lien Claim in late June of 2011
was not timely.
ORDER
th
AND NOW, this 27 day of March, 2012, the preliminary objections to the within
Mechanic’s Lien Claim are SUSTAINED and the Mechanic’s Lien Claim filed by Neelu
Enterprises, Inc., d/b/a KB Builders, filed on or about June 23, 2011, is DISMISSED.
BY THE COURT,
_______________________________
Kevin A. Hess, P. J.
2
Lowell Gates, Esquire
For the Claimant
Andrew T. Kravitz, Esquire
For the Owners
:rlm
3
NEELU ENTERPRISES, INC., : IN THE COURT OF COMMON PLEAS OF
d/b/a KB BUILDERS, : CUMBERLAND COUNTY, PENNSYLVANIA
Claimant :
: CIVIL ACTION – LAW
vs. : MECHANIC’S LIEN claim
:
ASHOK AGARWAL and : NO. 11-5233 CIVIL
ASHA AGARWAL, :
Owners :
IN RE: MECHANIC’S LIEN CLAIM
BEFORE HESS, P.J.
ORDER
th
AND NOW, this 27 day of March, 2012, the preliminary objections to the within
Mechanic’s Lien Claim are SUSTAINED and the Mechanic’s Lien Claim filed by Neelu
Enterprises, Inc., d/b/a KB Builders, filed on or about June 23, 2011, is DISMISSED.
BY THE COURT,
_______________________________
Kevin A. Hess, P. J.
Lowell Gates, Esquire
For the Claimant
Andrew T. Kravitz, Esquire
For the Owners
:rlm