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ANASTASI ET AL. v. BRUNET ET AL. (07/17/52)

July 17, 1952

ANASTASI ET AL.
v.
BRUNET ET AL.



COUNSEL

Paul Lane Ives, Chester, for appellants.

Frank A. Moorshead, Frederick H. Starling, Philadelphia, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

[ 171 Pa. Super. Page 465]

HIRT, Judge.

This is a proceeding on scire facias, testing the validity of a mechanic's lien. The trial resulted in a verdict for defendants. On undisputed facts the lower court subsequently entered judgment for the plaintiffs in the sum of $2,275, non obstante veredicto. The judgment will be affirmed.

Defendant Brunet and wife contracted with James F. Bloomer for the erection of a building adjoining a dwelling house on land owned by them. The plaintiffs, as subcontractors under Bloomer, supplied the cement block and brick work. Bloomer paid plaintiffs nothing for their work and subsequently went into bankruptcy. Plaintiffs completed their work on February 27, 1950 and on May 22, 1950, served defendants with notice of intention to file a lien. The lien was filed on June 27, 1950, in the amount of the agreed

[ 171 Pa. Super. Page 466]

    price for the work. The controlling question is whether the subject of the general contract was an alteration of the existing dwelling on the premises, or a new construction within the contemplation of the mechanics' lien law. If and only if the improvement was a new erection or construction can the validity of the lien be sustained since it was filed more than three months, although within six months, after the contract was completed. Act of June 4, 1901, P.L. 431, § 10, 49 P.S. § 52. That question on undisputed facts was for the court. Warren v. Freeman, 187 Pa. 455, 41 A. 290; Malone v. Hosfeld, 53 Pa. Super. 134.

Defendants' land is situate at the intersection of Providence and Chester Roads in Delaware County. There was an existing two-story brick dwelling house on the premises covering an area of 22 by 35 feet. The structure with which we are concerned is a one-story brick building 48 feet 8 inches by 33 feet, physically connected with the dwelling house with a doorway leading into it. The dwelling house was a complete unit in itself and the new work was in no sense a repair or alteration of the existing residence building. On the contrary the new structure was built to provide defendant Dr. Brunet with quarters for the practice of his profession as a dentist. The new building was attached to the dwelling house for convenience of access and to effect economies by using the heating system and extensions of existing utilities from the house. The new structure contained a reception room, operating room, business office, dark room and lavatory and a one car garage, all under one roof. The dwelling house, with a garage of its own, fronted on one street and the new building on the other. They were served by separate walks and driveways from different streets.

In sustaining the judgment in this case we do not rest our conclusion on a literal application of the provision

[ 171 Pa. Super. Page 467]

    of section 3 of the Act of June 4, 1901, supra, 49 P.S. § 26, to the effect that 'a substantial addition to a structure or other improvement shall be treated as a new erection or construction thereof * * *.' Certainly that Act is constitutional only 'insofar as it is not clearly divergent from and an advance upon the old law' as it existed at the adoption of the Constitution of 1874. Felin v. Locust Realty Co., 232 Pa. 123, 81 A. 158. Otherwise it offends against Art. III, § 7, of the Constitution, P.S., prohibiting the enactment of any special law 'authorizing the creation, extension or impairing of liens'. The mechanics' lien ...


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