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S. MARCHAK v. CALDWELL J. MCCLURE (09/28/54)

September 28, 1954

S. MARCHAK,
v.
CALDWELL J. MCCLURE, JR., CONTRACTOR AND PETER W. MESSANTONIO AND ANNA MARIE MESSANTONIO, HIS WIFE, OWNERS OR REPUTED OWNERS, APPELLANTS



COUNSEL

Samuel Lichtenfeld, West Chester, for appellants.

Joseph F. Harvey, West Chester, Leonard F. Markel, Jr., Norristown, Griffith, Kurtz & Harvey, West Chester, for appellee.

Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Wright

[ 176 Pa. Super. Page 382]

WRIGHT, Judge.

S. Marchak, a sub-contractor, filed a mechanics' lien against premises in Chester County owned by Peter W. Messantonio and Anna Marie Messantonio,

[ 176 Pa. Super. Page 383]

    husband and wife. The owners petitioned for a rule to show cause why said mechanics' lien should not be stricken from the record. The court below discharged the rule, and this appeal followed.

The portions of the claim with which we are concerned read as follows: '4. The materials hereinafter referred to were furnished pursuant to an oral contract entered into between claimant and contractor on or about April 1, 1952, wherein the claimant agreed to furnish certain windows, door frames, doors and lumber, an itemized statement of which is hereto annexed, marked 'Exhibit A', and made a part hereof, and for which contractor agreed to pay for each item the amount set forth opposite thereto. 5. The nature and kinds of material furnished were windows, door frames, doors and lumber * * *. 7. The first materials were furnished by the claimant on April 2, 1952, and the last materials were furnished on June 22, 1952. 8. Written notice of claimant's intention, verified by affidavit, to file the within mechanics' lien claim was duly served upon the owners on September 20, 1952, by handing the same to the owner, Anna Marie Messantonio, personally, and on the owner, Peter W. Messantonio, by handing the same to his wife, Anna Marie Messantonio, at their place of business, Reliable Cleaners, Lincoln Highway, Strafford, Chester County, Pennsylvania. 9. Said materials were furnished in and about the original erection and construction of a residence for Peter W. Messantonio and Anna Marie Messantonio, owners or reputed owners, by Caldwell J. McClure, Jr., contractor, more particularly described by metes and bounds as follows: (there is here inserted a description of a lot approximately 92 feet by 344 feet in Tredyffrin Township)'.

Appellants first contend that the claim does not meet the requirements of Section 11 of the Mechanics'

[ 176 Pa. Super. Page 384]

Lien Act of June 4, 1901, P.L. 431, as amended, 49 P.S. § 53, with respect to the nature of the labor or materials furnished. This section provides in part that every person entitled to a lien shall file a claim, or statement of his demand, which claim shall set forth: '2. The amount or sum claimed to be due, and the nature or kind of the work done, or the kind and amount of materials furnished, or both; and the time when the materials were furnished, or the work done, or both, as the case may be.' Reliance is placed upon McCrum-Howell Co. v. Empfield, 50 Pa. Super. 551, A. G. Breitwieser Lumber Co. v. Wyss-Thalman, 51 Pa. Super. 83, and Benton v. Berg Distilling Co., 63 Pa. Super. 412. Each of these cases involves the notice of intention to file required under Section 8 of the Act, 49 P.S. § 101. In the McCrum-Howell case the court was actually concerned with the question whether the substance of an alleged verbal contract was sufficiently set forth, and concluded that the notice did not contain such information as would enable the owner to determine whether the sub-contractor had tendered proper performance. In the Breitwieser and Benton cases the description of the materials was in general terms, unsupported by accompanying detailed exhibit.

In considering a mechanics' lien claim it must be kept in mind that substantial compliance with the Act is sufficient. This is shown to exist wherever enough appears in the statement to point the way to successful inquiry. Certainty to a common intent has always been held to suffice. American Car & Foundry Co. v. Alexandria Water Co., 215 Pa. 520, 64 A. 683. See also Howe, Inc. v. Beloff, 162 Pa. Super. 33, 56 A.2d 352, and Mullooly v. Short, 365 Pa. 141, 74 A.2d 136. An exhibit annexed to a claim and ...


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