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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

LAWNDALE CONSTRUCTION                        :    IN THE SUPERIOR COURT OF
MANAGEMENT, LLC,                             :          PENNSYLVANIA
                                             :
                         Appellant           :
                                             :
                   v.                        :
                                             :         No. 3395 EDA 2015
1840 S. CAMAC ST. PARTNERS GP,               :
LLC                                          :


                   Appeal from the Order, October 2, 2015,
            in the Court of Common Pleas of Philadelphia County
                 Civil Division at No. June Term 2015 M0017


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED JULY 11, 2016

      Lawndale Construction Management, LLC (“appellant”), appeals the

order of the Court of Common Pleas of Philadelphia County that sustained

the preliminary objections of 1840 S. Camac St. Partners GP LLC

(“appellee”) and struck appellant’s mechanics’ lien.

      On June 19, 2015, appellant commenced an action by filing a

mechanics’ lien which alleged that appellant began work on property located

at 1840 South Camac Street, Philadelphia, Pennsylvania (“Property”), on or

about September 2014 and which continued until at least June 15, 2015.

Appellant further alleged that it performed the work for appellee pursuant to

an   agreement   to     construct    a   seven-unit   planned   unit   development

residential building on the Property. Appellant also alleged that it “provided
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substantial materials and services to construct the building . . . including

engineering, excavation, foundation, plumbing, masonry, carpentry, roofing,

windows, doors and other construction materials and services for which

[appellant] has been paid partially but not completely.”        (Claim of Lien --

49 P.S. § 1503, 6/19/15 (“Lien”) at 2 ¶5.) Appellant alleged that it was due

to be paid $161,000.

      On September 2, 2015, appellee preliminarily objected and asserted

that it was not the record owner of the Property and that the record owner

was 1840 S. Camac St. Partners, LP (“Partners, LP”). Appellee alleged that

Partners LP entered into a residential construction contract with appellant

where appellant was to serve as general contractor for the construction

project at the Property. Appellee alleged that appellant agreed to a waiver

of liens in the contract which was attached as an exhibit to the preliminary

objections. Appellee moved to strike the mechanics’ lien claim because of

the waiver of liens.

      On   September      23,   2015,   appellant    answered       the   preliminary

objections and denied that the contract attached to the preliminary

objections was the agreement to perform work at the Property and denied

that appellant executed the agreement. Appellant also asserted that it did

not execute the lien waiver. Appellant’s counsel submitted a declaration that

the   purported    lien    waiver   did    not      contain   the     signature    of

Thomas Niedermayer (“Niedermayer”), president and sole member of



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appellant.    Niedermayer included a declaration that he did not sign the

contract and lien waiver and did not authorize anyone to sign on his behalf.

      By order dated September 30, 2015 and filed October 2, 2015, the

trial court sustained the preliminary objections and struck the mechanics’

lien claim:

                     In the instant case, this court sustained
              Appellee’s Objections and struck the lien for the
              following reasons. Appellant’s claim did not state
              whether the “agreement” was a written or oral
              contract, and thus this court could not discern
              whether Appellant’s failure to attach the claim was
              due to the nature of the contract or Appellant’s own
              failure to attach said contract. While it is not always
              necessary that a claimant attach a contract, for
              example, where the specification of the size, weight
              and price of material, with averments of the kind to
              be furnished, the amount due, the manner in which
              such amount is made up and the date when the last
              material was furnished was sufficient compliance
              with the act, in the instant case, Appellant provided
              nothing that would allow this court to verify the
              legitimacy of its claims. Additionally, the claim did
              not identify the type of contract nor provide an
              agreed-upon sum pursuant to 49 P.S. § 1503(5), nor
              did it provide a detailed statement of the kind and
              character of the labor or materials furnished and the
              prices charged for each thereof.

                     Finally, Appellant’s claim did not state when
              the work had been completed and, in fact did not
              indicate that the work was completed: the claim
              stated only that the work has “continued until at
              least June 15, 2015.”

                  Appellant did not apply for leave of court to
              amend the Lien.

                     Consequently, the Mechanics Lien was facially
              insufficient and properly stricken.


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Trial court opinion, 1/5/16 at 4-5 (citation omitted; emphasis in original).

      Appellant raises the following issue for this court’s review:

            Did the court below err as a matter of law in striking
            Appellant’s mechanics lien claim as facially deficient
            when the claim set forth the existence of the
            construction     agreement,   provided    a   general
            description of the labor and materials furnished, set
            forth the amount due and owing under the contract,
            and averred that claimant’s work continued at least
            until a specified date that was within six months of
            the filing of the lien claim?

Appellant’s brief at 2.

                   In determining whether the trial court
                   properly       sustained    preliminary
                   objections, the appellate court must
                   examine the averments in the complaint,
                   together with the documents and
                   exhibits attached thereto, Witmer v.
                   Exxon Corp., 260 Pa.Super. 537, 394
                   A.2d 1276 (1978), affirmed, 495 Pa.
                   540, 434 A.2d 1232 (1981), in order to
                   evaluate the sufficiency of the facts
                   averred. Mar Ray, Inc. v. Schroeder,
                   242 Pa.Super. 14, 363 A.2d 1136
                   (1976).      See Lisk Plumbing and
                   Heating Co., Inc. v. Schons, 283
                   Pa.Super. 344, 423 A.2d 1288 (1981)
                   (agreements accompanying complaint
                   are part of record).

                          Our     inquiry    goes    only  to
                          determining the legal sufficiency
                          of appellant’s complaint and we
                          may      only     decide    whether
                          sufficient facts have been pleaded
                          which would permit recovery, if
                          ultimately proven.       Gordon v.
                          Lancaster Osteopathic Hosp.
                          Ass’n., 340 Pa.Super. 253, 489


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                    A.2d 1364 (1985). We must be
                    able to state with certainty that
                    upon the facts averred, the law
                    will not permit recovery by the
                    plaintiff.’ Berger v. Ackerman,
                    293 Pa.Super. 457, 459, 439
                    A.2d 200, 201 (1981).

                 Fizz v. Kurtz, Dowd & Nuss, Inc., 360
                 Pa.Super. 151, 153, 519 A.2d 1037,
                 1038 (1987). See also Valley Forge
                 Towers South Condominium v. Ron-
                 Ike Foam Insulators, Inc., 393
                 Pa.Super. 339, 345, 574 A.2d 641, 644
                 (1990), affirmed, 529 Pa. 512, 605
                 A.2d 798 (1992).

           Guistro Development Co., Inc. v. Lee, 428
           Pa.Super. 394, 399, 631 A.2d 199, 201-202 (1993).
           This Court will reverse the trial court’s decision only
           where there has been an error of law or abuse of
           discretion.     Bocchicchio v. General Public
           Utilities Corp., 456 Pa.Super. 23, 26, 689 A.2d
           305, 307 (1997). Further, “when the sustaining of
           preliminary objections results in the denial of a claim
           or the dismissal of a suit in a mechanics’ lien
           proceeding, preliminary objections should be
           sustained only where the case is clear and
           doubtless.”     Guistro Development Co., Inc.,
           supra. Id. at 400, 631 A.2d at 202 (citing Castle
           Pre-Cast Superior Walls of Delaware, Inc. v.
           Strauss-Hammer, 416 Pa.Super. 53, 56, 610 A.2d
           503, 504 (1992); Valley Forge Towers South
           Condominium v. Ron-Ike Foam Insulators, Inc.,
           supra).

Denlinger, Inc. v. Agresta, 714 A.2d 1048, 1050-1051 (Pa.Super 1998).

     “To effectuate a valid lien claim, the contractor/subcontractor must be

in strict compliance with the notice requirements of the Mechanics’ Lien

Law.” Id. at 1052. However, while the notice and other requirements under



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the Law are to be strictly construed, Pennsylvania courts apply the doctrine

of substantial compliance such that if enough appears on the face of the

statement to lead to successful inquiry, the claim may go forward.        Id. at

1052-1053.

         Appellant contends that the claim of lien provided the information

required by the Mechanics’ Lien Law of 1963 (“Law”).1 Appellant argues that

its claim of lien identified the contract, described the scope of work, set forth

the amount then due under the contract, and identified the time frame of

the work with sufficient specificity to demonstrate that the lien was timely

filed.

         Section 503 of the Law, 49 P.S. § 1503, provides:

              The claim shall state:

              (1)   the name of the party claimant, and whether
                    he files as contractor or subcontractor;

              (2)   the name and address of the owner or reputed
                    owner;

              (3)   the date of completion of the claimant’s work;

              (4)   if filed by a subcontractor, the name of the
                    person with whom he contracted, and the
                    dates on which preliminary notice, if required,
                    and of formal notice of intention to file a claim
                    was given;

              (5)   if filed by a contractor under a contract or
                    contracts for an agreed sum, an identification
                    of the contract and a general statement of the


1
    Act of August 24, 1963, P.L. 1175, as amended, 49 P.S. §§ 1101-1902.


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                  kind and character of the labor or materials
                  furnished;

            (6)   in all other cases than that set forth in
                  clause (5) of this section, a detailed statement
                  of the kind and character of the labor or
                  materials furnished, or both, and the prices
                  charged for each thereof;

            (7)   the amount or sum claimed to be due; and

            (8)   such description of the improvement and of the
                  property claimed to be subject to the lien as
                  may be reasonably necessary to identify them.

49 P.S. § 1503.

      The claim of lien stated that appellant performed work pursuant to an

“agreement” to construct a seven-unit planned unit development residential

building.   As a result of this agreement, the claim of lien states that

appellant provided substantial material and services including “engineering,

excavation, foundation, plumbing, masonry, carpentry, roofing, windows,

doors and other construction materials and services.” (Lien, at 2 ¶5.)

      The trial court found that appellant did not indicate whether the

“agreement” or contract was written or oral and could not discern whether

appellant’s failure to attach the contract was because the contract was oral

or because appellant simply neglected to do so.

      Although not found in the Law, Pa.R.C.P. No. 1019(h) requires that

when a claim is based upon an agreement, the pleading shall state if the

agreement is oral or written, and if written, the agreement should be

attached.   Appellant did not indicate in the claim of lien whether the


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agreement was oral or written.         However, as appellant points out, in

Denlinger, this court held that where the lien claimant does not indicate in

the pleading whether the agreement is oral or written, it is presumed to be

oral.   As a result, this court finds that the fact that a contract was not

included with the claim of lien does not necessarily mean that the claim of

lien should be stricken.

        Section 503(5) of the Law, 49 P.S. § 1503(5), also provides that if the

contract is for an agreed sum, a general statement of the kind and character

of the labor or materials furnished is required. The trial court determined

that appellant failed to provide an agreed upon sum. A review of the claim

of lien confirms that. Although the claim of lien states that the amount of

$161,000 is due to be paid from the owner of the property for work

performed, the claim of lien does not indicate whether this was an agreed

upon amount in the contract. As a result, the claim of lien does not meet

the requirements of Section 503(5) of the Law.

        Section 503(6) of the Law, 49 P.S. § 1503(6), provides that if there is

not a contract for an agreed upon sum, then “a detailed statement of the

kind and character of the labor or materials furnished, or both, and the

prices charged for each thereof” must be included on the statement of lien.

As the trial court noted, the claim of lien does not include this important

information.    While this court is cognizant of the doctrine of substantial

compliance, the absence of this basic information does not indicate



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substantial compliance with the Law.    Additionally, the trial court reported

that appellant did not ask for leave of court to amend the claim of lien. The

trial court did not err when it sustained the preliminary objections on the

basis that the claim of lien did not contain the information required under

the Law.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016




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