J-A17001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    LOBAR ASSOCIATES, INC.                         IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA


                        v.

    EDWARD J. O’NEILL AND CARLA C.
    O’NEILL, H/W

                             Appellant               No. 3525 EDA 2016


              Appeal from the Judgment Entered October 13, 2016
               In the Court of Common Pleas of Delaware County
                      Civil Division at No(s): 2015-001654


BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

DISSENTING MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 17, 2017

        I respectfully dissent. In my view, the Majority memorandum does not

sufficiently address Appellants’ assertion that they will not derive an

immediate use or benefit from improvements made to property that they own.

        This is an appeal from an order granting summary judgment in a

Mechanics’ Lien action. The Mechanics’ Lien is a statutory remedy, and any

questions of interpretation should be resolved in favor of a strict, narrow,

construction. See Denlinger, Inc. v. Agresta, 714 A.2d 1048, 1052 (Pa.

Super. 1998). Strict compliance with the statute is required. See Murray v.

Zemon, 167 A.2d 253, 255 (Pa. 1960).           Regarding leased premises, the

statute provides that:

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*   Retired Senior Judge assigned to the Superior Court.
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       No lien shall be allowed against the estate of an owner in fee by
       reason of any consent given by such owner to a tenant to improve
       the leased premises unless it shall appear in writing signed by
       such owner that the erection, construction, alteration or repair
       was in fact for the immediate use and benefit of the owner.

49 P.S. § 1303(d). As the majority notes, Murray further instructs that:

       The fact that the [owner] had knowledge of and consented to the
       repairs made is not in itself sufficient. If the law were otherwise,
       the cost of almost every alteration made by a tenant could be the
       subject of a lien against the owner. In order for the claim to be
       valid against the estate of the owner, where he is not a party to
       the [construction] contract, his consent must appear in the form
       of a written statement, signed by him, and which shall also state
       that the improvement is made for his immediate use and benefit.
       This is a condition precedent. The claim filed must on its face
       show the existence of such consent to satisfy this requirement.
       Every mechanics’ lien must be self-sustaining.

Murray, 167 A.2d at 255-56.

       Appellants assert they received no immediate use or benefit and aver,

relying on Boteler v. Espen, 99 Pa. 313 (1882), that whether the lessor

retains improvements made does not impact the immediate benefit analysis,

where costs for improvements are clearly borne by the lessee.          Although

Boteler is an ancient case and pre-dates the current statute, it is cited

favorably by the Supreme Court in Murray. See Murray, 167 A.2d at 256.

       Here, the trial court concluded that the improvements made by Carmel

were for Appellants’ immediate use and benefit.1       See Trial Court Opinion
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1 Although the trial court asserts that the central purpose of the lease was “for
the construction of the improvements at issue,” such an assertion is an
inaccurate characterization that is not supported by the record or the lease at
issue, and may refer solely to Appellants’ agreement to cover certain required



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(TCO), 2/6/17, at 8. The trial court supported this conclusion, noting that 1)

the lease required Appellants to pay for structural improvements; 2)

Appellants agreed to cooperate in the construction, permitting, and approval

process; and 3) Appellants became the owner of all improvements at the

conclusion of the lease. See TCO at 8.

       The Majority agrees and relies on American Seating Co. v. City of

Philadelphia, 256 A.2d 599 (Pa. 1969), to support its affirmation of the trial

court. Specifically, the Majority notes that a signed lease agreement between

an owner and a tenant, allowing for construction and improvements on the

leasehold, is sufficient to satisfy the “writing” requirement of the statute,

provided the lease shows the improvements will redound to the owner’s

benefit. See Majority Mem. at 7 (citing in support American Seating, 256

A.2d at 603). However, this case is distinguishable from the situation herein.

       In American Seating, a contractor filed a mechanics’ lien claim against

the landlord interest of the City of Philadelphia in the Spectrum Sports Arena.

Id. at 600. The property and building were owned by the City but maintained

by a lessee, who entered into a contract with American Seating to replace

substantially all of the seating in the arena. Id. When the lessee defaulted

under his agreement to pay the balance owed under the contract, American

Seating sued the lessee and the City. Id. The primary contention in this case

was whether the mechanics’ lien was appropriate where the landlord was a
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structural repairs. See TCO at 8; see also Lease, 11/15/12, at 1-32 (noting
that initial use of leased space is the operation of a table service restaurant).

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public entity; the Court determined the unique circumstances present

rendered the City’s role quasi-private, or profit driven. Id. at 601-02. The

Court only briefly examined whether the City had received an immediate

benefit from the improvements. It noted that the City had entered into the

contract in part to secure additional revenue from sports and entertainment

events, as well as from conventions; this benefit was acknowledged in the

lease itself. Id. at 602-03.   That is not so in the instant matter.

      First, in the instant matter, the lease was not entered into to secure

additional revenue, as in American Seating. The lease between Carmel and

Appellants was for a restaurant alone; there was no additional benefit or

increased revenue beyond that which would normally be garnered by rental

payments. See Murray, 167 A.2d at 256 (concluding that the continuance of

rent was an “indirect rather than an immediate” benefit resulting from

improvements). Second, in American Seating, the lease specifically stated

that the additional seating was for the benefit of the City; there is no such

provision in the instant case. See American Seating, 256 A.2d at 602-03.

      Most importantly, the improved seating in American Seating could be

immediately used by the City, and indeed, was commissioned for that

purpose. See American Seating, 256 A.2d at 600.            In the instant case,

although ownership of the improvements reverted to Appellants following

Carmel’s default, the improvements were not of immediate use or benefit to

Appellants.   Appellants are the owners of the building, not restaurateurs

themselves. Any use of the improvements would depend on finding another

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tenant, and even in that case, there is no guarantee the improvements would

be utilized or retained by a subsequent restaurant.    Moreover, there is no

guarantee that a future tenant would require the property for a similar use.

      The fact that Appellants had knowledge of and consented to the repairs

is not sufficient. See Murray, 167 A.2d at 255-56. For a lien to be valid,

where the owner is not party to the construction contract, his “consent must

appear in the form of a written statement, signed by him, and which shall also

state that the improvement is made for his immediate use and benefit.” Id.

This is a condition precedent, and that condition has not been met in the

instant case. See Murray, 167 A.2d at 256.

      Accordingly, I dissent.




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