J-A28036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ADIL EL-GHARBAOUI                          :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ADEBOWALE AND JIBOLA AJAYI,                :
    H/W                                        :
                                               :   No. 279 EDA 2016
                      Appellants

              Appeal from the Judgment Entered December 4, 2015
      In the Court of Common Pleas of Philadelphia County Civil Division at
                               No(s): 130902458


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                                 FILED MARCH 29, 2018

        Appellants, Adebowale and Jibola Ajayi, appeal the December 4, 2015

Judgment entered in favor of Appellee, Adil El-Gharbaoui (“Contractor”), and

against Appellants in the amount of $41,500.1            Upon careful review, we

affirm in part and vacate in part.

        The relevant factual and procedural history is as follows. On August

30, 2010, Contractor entered into a contract (“Original Contract”) with

Appellants to renovate the building they owned at 5531 and 5533 Baltimore

Avenue, Philadelphia, PA, 19143 (“the Property”), in exchange for $160,000.

Contractor began work at the beginning of September 2010, after Appellants


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1 On December 4, 2015, the trial court simultaneously entered an Order
denying Appellant’s Post-Trial Motion.
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paid a $25,000 deposit.     Contractor completed demolition in September

2010, at a cost of $28,000. After demolition, the building on the Property

was an empty shell supported entirely by the partition and exterior walls.

      From September 2010 to January 2011, Contractor ceased work on

the Property while waiting for a plan from the engineer.      On January 29,

2011, the parties agreed to a supplemental contract (“Supplemental

Contract”), which included additional masonry work in exchange for an

additional $18,000.     The Supplemental Contract included a payment

schedule with amounts owed when Contractor met certain construction

milestones. Between January 29, 2011 and February 14, 2011, Contractor

sent Appellants multiple emails documenting completion of milestones.

Appellants failed to provide payment to Contractor.

      The Property deteriorated over the winter as lack of funding and

Contractor’s safety concerns delayed construction. Contractor arranged for

a structural engineer to visit the Property to address his safety concerns.

      On April 1, 2011, Contractor sent an invoice for $22,000 to Appellants

for completed masonry work. Appellants did not make any payments. The

building degraded and became extremely hazardous, prompting Contractor

to contact the Department of Licenses and Inspection (“L&I”) to voice his

safety concerns. On April 11, 2011, L&I condemned the property.

      On the same day, Contractor sent an email to L&I requesting that they

remove his name from the Property’s building permit.            In the email,

Contractor stated that he had not worked on the Property in three weeks.

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Contractor maintained keys to the Property until April 13, 2011, when

Contractor terminated the Original Contract and Supplemental Contract via

email.

      On September 20, 2011, Contractor filed a Mechanics’ Lien Claim

against the Property for unpaid work totaling $22,000. On September 22,

2013, Contractor filed a Complaint to Enforce Mechanics’ Lien Claim.         On

July 1, 2015, after a three-day bench trial, the trial court awarded

Contractor $41,500, including $22,000 for unpaid work, $11,000 in interest

and $8,500 in attorney’s fees and costs.      The Judgment was entered on

December 5, 2015.

      Appellants filed a timely Post-Trial Motion to vacate judgment, which

the trial court denied. Appellants timely appealed. Both Appellants and the

trial court complied with Pa.R.A.P. 1925.

      Appellants raise the following issues on appeal:

      1. [Are] Appellant[s] entitled to a new trial where the [t]rial
         [c]ourt conceded that it erred as a matter of law in applying
         the wrong statute to determine the claims before the court?

      2. [Are] Appellant[s] entitled to vacatur of the judgment where
         the [t]rial [c]ourt held that Contractor’s actions in opening the
         building for a building inspector, retrieving tools and
         materials, and “probably patch[ing] a little minute something
         just to keep face” extended the date of completion of
         Contractor’s work under the Mechanics’ Lien Law?

      3. [Are] Appellant[s] entitled to a new trial where the judge in a
         bench trial admittedly considered the religious beliefs, race,
         color, and national origin of the only two defense witnesses
         proper evidence of “bias and prejudice,” in violation of
         Pennsylvania Rule of Evidence 610?


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       4. [Are] Appellant[s] entitled to vacatur of the judgment where
          the [t]rial [c]ourt held that Contractor perfected his
          mechanics’ lien, but where Contractor admitted that he did
          not achieve “completion of the work” required by the
          contracts?

Appellants’ Brief at 2 (reordered for ease of disposition).2

       When we review cases arising from non-jury trial verdicts, we consider

the evidence in a light most favorable to the verdict winner. Wyatt Inc. v.

Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa. Super. 2009).

We will reverse the trial court only if its findings of fact are not supported by

competent evidence in the record or if its findings are premised on an error

of law. Id. However, where the issue concerns a question of law, our scope

of review is plenary.       Id.   “The trial court's conclusions of law on appeal
____________________________________________


2 Appellants did not raise their third and fourth issues in their Rule 1925(b)
Statement. Appellants assert, however, that they raised both issues in
Paragraph 1 of their Pa.R.A.P. 1925(b) Statement, which states: “Whether
the Court of Common Pleas erred in denying [Appellants’] Post-Trial Motion
for the reasons expressed therein?” See Appellants’ Pa.R.A.P. 1925(b)
Statement, ¶ 1; Appellants’ Reply Brief at 1 n.1, 10 n.3. This Court has
held, “a Concise Statement which is too vague to allow the court to identify
the issues raised on appeal is the functional equivalent of no Concise
Statement at all.” Commonwealth v. Dowling, 778 A.2d 683, 686–87
(Pa. Super. 2001). Instantly, the trial court was unable to identify and
address either issue in its Pa.R.A.P. 1925(a) Opinion. Accordingly, we
conclude that Appellants’ general reference to their four-page Post-Trial
Motion in Paragraph 1 of their Pa.R.A.P. 1925(b) Statement is too vague to
identify the issues raised on appeal and effectuate meaningful appellate
review.    Thus, Appellant’s third and fourth issues are waived.          See
Commonwealth v. Castillo, 888 A.2d 775, 780 (“Any issues not raised in a
Pa.R.A.P. 1925(b) statement will be deemed waived”); Pa.R.A.P.
1925(b)(4)(vii).




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originating from a non-jury trial are not binding on an appellate court

because it is the appellate court's duty to determine if the trial court

correctly applied the law to the facts of the case.” Id. (internal quotation

marks and citation omitted).

     In their first issue, Appellants aver that the trial court erred when it

applied the Contractor and Subcontractor Payment Act (“CASPA”) rather

than the Mechanics’ Lien Law of 1963 (“Mechanics’ Lien Law”) to determine

the claims before the court. Appellants’ Brief at 14. See 73 P.S. §§ 501-

516; 49 P.S. §§ 1101-1902.      In support, Appellants provide two distinct

arguments.

     First, they argue generally that the trial court applied the wrong

statute, CASPA, throughout the entire case.    See Appellants’ Brief at 14.

Appellants failed to raise this issue in their Pa.R.A.P. 1925(b) Statement

and, therefore, failed to preserve this argument for our review.        See

Castillo, supra at 780; Pa.R.A.P. 1925(b)(4)(vii).

     In their second argument of this issue, Appellants aver that the trial

court applied the wrong statute when it awarded interest and attorney’s

fees. Id. at 15. Appellants argue that the trial court erroneously applied

CASPA when it should have applied the Mechanics’ Lien Law, which does not




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permit the award of interest and attorney’s fees. Id. We agree, as does the

trial court.3

       Instantly, Contractor filed a Complaint to Enforce Mechanics’ Lien

Claim pursuant to the Mechanics’ Lien Law, which limits the lien to amounts

owed for labor and materials only.             See Artsmith Dev. Grp., Inc. v.

Updegraff, 868 A.2d 495, 496 (Pa. Super. 2005). The Mechanics’ Lien Law

provides, in relevant part:

       Except as provided under subsection (b), every improvement
       and the estate or title of the owner in the property shall be
       subject to a lien, to be perfected as herein provided, for the
       payment of all debts due by the owner to the contractor or by
       the contractor to any of his subcontractors for labor or materials
       furnished in the erection or construction, or the alteration or
       repair of the improvement, provided that the amount of the
       claim, other than amounts determined by apportionment under
       section 306(b) of this act, shall exceed five hundred dollars
       ($500).

49 P.S. § 1301 (a) (emphasis added). It is well settled that a mechanics'

lien action is distinct from a breach of contract action seeking remedies

pursuant to CASPA, which adds penalties, interest, and attorney's fees.

Wyatt Inc., supra at 570.             Consequently, a contractor cannot include




____________________________________________


3 In its Pa.R.A.P. 1925(a) Opinion, the court acknowledged its error in
awarding interest and attorney’s fees and requested that this Court remand
the matter for the trial court to enter appropriate judgment. See Trial Court
Opinion, filed 12/22/16, at 1, 6.




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attorney's fees, penalties, and interest pursuant to CASPA in a mechanics'

lien action and a trial court cannot award them. See id.

      Here, Contractor did not file an action under CASPA.          Rather, he

sought relief only under the Mechanics’ Lien Law. Accordingly, we find that

the trial court erred when it awarded interest and attorney’s fees pursuant to

CASPA in this mechanics’ lien action. As a result, we vacate the portion of

the judgment that awarded $11,000 in interest and $8,500 in attorney’s fees

and costs.

      In their second issue, Appellants claim that the Mechanics’ Lien Claim

filed on September 20, 2011, was untimely, and therefore, this Court should

vacate judgment. Appellants’ Brief at 23. Appellants argue that a claimant

must file a mechanics’ lien within six months after completion of work but, in

this case, the last day that Contractor supplied labor and materials under the

Original and Supplemental Contracts was February 14, 2011, seven months

prior to filing the Mechanics’ Lien Claim. Therefore, Appellant’s argue, the

Lien claim was untimely filed. Id. at 20, 23.

      In order to perfect a lien, the Mechanics’ Lien Law requires a claimant

to file a claim within six months after the “completion of his work[.]” 49 P.S.

§ 1502. Section 1201 defines “completion of the work” as “performance of

the last of the labor or delivery of the last of the materials required by terms

of the claimant’s contract or agreement, whichever last occurs.” 49 P.S. §

1201. Section 1305 explains that a claimant still has a right to lien when it

is not his fault that he is unable to complete the work, stating: “Except in

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case of destruction by fire or other casualty, where, through no fault of the

claimant, the improvement is not completed, the right to lien shall

nevertheless exist.” 49 P.S. §1305.

          Instantly, Contractor filed his Mechanics’ Lien Claim on September 20,

2011.       The trial court opined that “it was undisputed that [Contractor]

performed work on March 21, 2011, six months before the lien was filed[,]”

based on Contractor’s testimony that he sent an email on April 11, 2011 to

L&I requesting that his name be removed from the building permit and

informing L&I that he last worked on the Property three weeks prior. Trial

Court Opinion, filed 12/22/16, at 3, 4. The trial court’s factual finding that

Contractor performed the last of the labor on March 21, 2011 is supported

by competent evidence.         Contractor had until September 21, 2011, six

months later, to file a timely Lien claim.      Contractor timely filed the Lien

claim on September 20, 2011. Thus, Appellant’s second claim warrants no

relief.

          In conclusion, we affirm in part and vacate in part.   The Mechanics’

Lien Law limits Contractor’s Mechanics’ Lien Claim to amounts owed for labor

and materials only, and, thus, we vacate the portion of the judgment that

awarded $11,000 in interest and $8,500 in attorney’s fees and costs.

          Judgment affirmed in part and vacated in part.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/18




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