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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CARTER LUMBER COMPANY, INC.                 :   IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                      Appellant


                 v.


    LINDA S. BALES, TRUSTEE OF THE              :   No. 180 MDA 2019
    LINDA S. BALES LIVING TRUST
    DATED NOVEMBER 20, 2008, AND
    ANY AMENDMENTS THERETO, OF
    THE COMMONWEALTH OF
    PENNSYLVANIA

                Appeal from the Order Entered January 8, 2019
      In the Court of Common Pleas of Cumberland County Civil Division at
                             No(s): 2018-02732


BEFORE:      LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                               FILED AUGUST 12, 2019

        Carter Lumber Company, Inc.           ("Carter") appeals from the order

granting Linda    S. Bales'   ("Bales") preliminary objections, and striking Carter's

mechanics' lien claim pursuant to the Mechanics' Lien                 Law   of 1963

("Mechanics' Lien Law").1 After careful review, we affirm.

        On March 21, 2017, Bales entered into an agreement of sale with Home

Designs Unlimited ("Home Designs") to purchase               a   residential property

located at 14 Peyton Drive, Carlisle, Pennsylvania ("Property").                 Bales




1Act of August 24, 1963, P.L 1175, No. 497, as amended 49 P.S.               §   1101-
1902.

      Retired Senior Judge assigned to the Superior Court.
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requested modifications to the home's original specifications and contracted

with Home Designs for those modifications.               Home Designs subsequently

contracted with Carter to perform        a   portion of those modifications.

        It   is   undisputed that Bales and Carter never entered into any contract,

whereas Home Designs and Carter entered into three separate contracts.

Carter prepared all three of those contracts, which identify Home Designs as

the general contractor and Carter as the subcontractor.

        Prior to settlement on the Property between Home Designs and Bales,

Home Designs and its individual owners entered into               a   promissory note in

which they agreed to pay Carter the sum of $756,697.04 arising from multiple

jobs Carter had performed for Home Designs. A small portion of that debt

represented the amount associated with work performed on the Property and

included in Carter's mechanics' lien claim.

        Closing on the sale of the Property to Bales took place on October 27,

2017, at which time Bales made full purchase payment to Home Designs. Prior

to and immediately following the transfer of the Property, Home Designs

timely remitted its scheduled payments to Carter under the note. However,

Home Designs defaulted on its payment to Carter in December 2017 and

subsequently filed for bankruptcy.

        As a result of Home Designs' default on its obligation to Carter, on

January 16, 2018, Carter served Bales with               a   notice of intent to file   a


mechanics' lien claim, and subsequently filed the claim on March 6, 2018.


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Bales filed      preliminary objections,2 which were granted, and Carter's

mechanics' lien was stricken by the court on January 7, 2019.

        Carter filed   a   timely notice of appeal to this Court on February 1, 2019,

followed by    a   court -ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.              On appeal, Carter claims the trial court erred in

holding Carter to be          a    subcontractor pursuant to section 1201(5) of the

Mechanics' Lien Law. See Appellant's Brief, at 5.

        Our scope and standard of review of          a   challenge to an order sustaining

preliminary objections        is   well -settled:

        In   determining whether the trial court properly sustained
        preliminary objections, [this Court] must examine the averments
        in the complaint, together with the documents and exhibits
        attached thereto, in order to evaluate the sufficiency of the facts
        averred. The impetus of our inquiry is to determine the legal
        sufficiency of the complaint and whether the pleading would
        permit recovery if ultimately proven. This Court will reverse the
        trial court's decision regarding preliminary objections only where
        there has been an error of law or abuse of discretion. When
        sustaining the trial court's ruling will result in the denial of a claim
        or a dismissal of suit, preliminary objections will be sustained only
        where the case is free and clear of doubt.

Clem/eddy Construction Inc. v. Yorston, 810 A.2d 693, 696                    (Pa. Super.

2002); see also Wetzel-Applewood Joint Venture v. 801 Mkt. St.

Assocs., LP, 878 A.2d 889, 892 (Pa. Super. 2005).




2 Section 1505 of the Mechanics' Lien Law provides: "Any party may
preliminarily object to a claim upon a showing of exemption or immunity of
the property from the lien, or for lack of conformity with this act." 49 P.S. §
1505.

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        The Mechanics' Lien Law was intended to protect the prepayment labor

and materials that      a   contractor invests in another's property, by allowing the

contractor to obtain            a    lien against the property involved.                     Matternas     v.

Stehman, 642 A.2d 1120, 1124                           (Pa. Super. 1994).            See generally 20

Standard Pennsylvania Practice 2d                      §   105. The Mechanics' Lien Law is to be

construed strictly, as it            is a   special remedy for         a   unique group of creditors in

derogation of common law.                          See Yellow Run Coal Co. v. Yellow Run

Energy Co., 420 A.2d 690, 692                       (Pa. Super. 1980).

        A   party may object to                a    mechanics' lien if there         is an   exemption or

immunity of the property, or if there                      is lack   of conformity with the act. See

49 P.S.     §   1505; see also supra, n.3. Relevant here,                        a   subcontractor does

not have the right to       a       mechanics' lien where the owner paid the full contract

price to the contractor, the property is the owner's residence, and the property

is   intended for living purposes. 49 P.S.                   §   1301(b). A property         is also   exempt

from    a   mechanics' lien if the property was conveyed in good faith for                                  a


valuable consideration prior to the filing of the mechanics' lien claim. 49 P.S.

§    1303(c).

        Here, the trial court concluded that Carter was                          a   subcontractor and,

thus, does not have         a       right to   a    mechanics' lien pursuant to section 1301(b)

of the act. Carter disputes this finding, arguing that Home Designs, and not

Bales, was the legal owner of the property at the time all of the relevant

contracts were executed.                       As such,          Carter argues that it was not              a



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subcontractor, but rather         a   contractor employed directly by the owner. Thus,

Carter asserts the subcontractor exception under section 1301(b) does not

apply, and the trial court erred in sustaining Bales' preliminary objections. We

disagree.

          Under the Mechanics' Lien Law, an 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) (emphasis added). A contractor                   is 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." 49       P.S. § 1201(4).          A   subcontractor    is    one who, by contract with

the contractor, or pursuant to          a   contract with   a   subcontractor in direct privity

of   a   contract with   a   contractor, express or implied, "erects, constructs, alters

or repairs an improvement or any part thereof." 49 P.S.                      §    1201(5).

          Here, Bales signed an agreement of sale to purchase the property on

March 21,2017.

          From the moment an agreement of sale of real estate is executed
          and delivered it vests in the grantee what is known as an equitable
          title to the real estate.       See Ladner on Conveyancing in
          Pennsylvania, § 5:26 (3d ed. 1961). Thereupon the vendor is
          considered as a trustee of the real estate for the purchaser and
          the latter becomes a trustee of the balance of the purchase money
          for the seller. Kerr v. Day, 14 Pa. 112 (1850). Hence, if the
          terms of the agreement are violated by the vendor, the vendee
          may go into a court of equity seeking to enforce the contract and
          to compel specific performance. Bone v. Satterthwaite, H 37
          A. 102 ([Pa.] 1897); and Agnew v. Southern Ave. Land Co., H
          53 A. 752 ([Pa.] 1902).

Payne v. Clark, 187 A.2d 769,770-71 (Pa. 1963).

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        Accordingly, at the moment she signed the agreement of sale on March

21, 2017, Bales was vested with equitable ownership of the Property. As one

possessing "any other estate in or title to [the] property," Bales thus became

the "owner" of the Property for purposes of section 1201(3) as of that date.

Thereafter, Bales contracted exclusively with Home Designs, which in turn

subcontracted exclusively with Carter. The latter agreements-prepared by

Carter-named Home Designs            as the general contractor and Carter as the

subcontractor. Bales paid Home Designs the full contract price, the Property

is   Bales' home, and it is intended for living purposes. Therefore, Carter is         a

subcontractor whose claim     is   subject to the exemption under section 1301(b).

         Even if Home Designs were classified as the owner, and Carter as the

contractor, Carter's claim would still be exempt pursuant to section 1303(c).

Section 1303(c) exempts       a    property from    a   mechanics' lien if the property

was "conveyed in good faith for       a   valuable consideration prior to the filing of

a    claim for alterations or repairs." 49 P.S.     §   1303(c). Here, Home Designs

conveyed the Property to Bales in good faith on October 27, 2017. Carter did

not file notice of his intent to file its mechanics' lien claim until January 16,

2018, almost three months after the conveyance to Bales. Accordingly, even

if Carter were the contractor, it lost the right to assert      a   mechanics' lien when

Home Designs conveyed the Property to Bales. We conclude, therefore, that

the record support the trial court's decision, and we find no error of law or

abuse of discretion in the order granting Bales' preliminary objections and

striking Carter's mechanics' lien. Clem/eddy, supra.

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        Order affirmed.




Judgment Entered.



    1-7
Jseph  D. Seletyn,
Prothonotary


Date: 08/12/2019




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