Appeal, No. 185, March T., 1955, from judgment of Court of Common Pleas of Allegheny County, July T., 1955, No. 1920 and July T., 1955, No. 26, in case of K. K. Wood, trading as Wood Electrical Construction Company v. United States Steel Corporation. Judgment affirmed; reargument refused December 10, 1955.
Samuel W. Pringle, with him John David Rhodes, and Dalzell, Pringle, Bredin & Martin, for appellant.
Ira R. Hill, with him Reed, Smith, Shaw & McClay, for appellee.
Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal is from a judgment of the Court of Common Pleas of Allegheny County striking from the record a mechanic's lien filed by a subcontractor. It was ruled that the subcontractor had waived its right to file the lien.
On May 11, 1953, the United States Steel Corporation, defendant-appellee, entered into a written contract with Ferguson & Edmondson Company, its general contractor, for the erection of a structure on the premises of appellee in the Borough of North Braddock, Allegheny County. Under clause 6 of the agreement between the owner and contractor it is provided: "Contractor shall indemnify and save harmless Owner from any and all liens, claims, obligations or liabilities which may be asserted against Owner or its property by reason of or as a result of any acts or omissions of Contractor, his employees, representatives, licensees, or subcontractors, in connection with or related to the performance of this contract. ..."
On May 29, 1953, the general contractor entered into a written contract with Wood Electrical Construction Co., plaintiff-appellant, for materials and labor to be furnished to the general contractor. The agreement provides, inter alia: "Section 5. The Contractor and Subcontractor agree to be bound by the terms of the Agreement, the General Conditions, Drawings and Specifications as far as applicable to this subcontract, and also by the following provisions: The Subcontractor
agrees - (a) To be bound to the Contractor by the terms of the Agreement, General Conditions, Drawings and Specifications, and to assume toward him all the obligations and responsibilities that he, by those documents, assumes toward the Owner. ... The Contractor and the Subcontractor agree that - ... Nothing in this article shall create any obligation on the part of the Owner to pay to or to see to the payment of any sums to any Subcontractor."
The appellant-subcontractor filed a mechanic's lien against the premises of the appellee-owner, under the Mechanics' Liens Act of June 4, 1901, P.L. 431, as amended, 49 PS 1 et seq. An agreement for an amicable scire facias in accordance with Section 32 of the Act, 49 PS 151, was entered into by the parties. Appellee filed an affidavit of defense to the scire facias. A rule was entered on the appellee-owner to show cause why judgment should not be entered for appellant-subcontractor. Upon answer with issue joined, argument was had before the court in banc. Judgment was entered in favor of appellee-owner and the lien was stricken from the record. This appeal followed.
A single question is raised by the appeal: did the appellant-subcontractor waive the right to file a mechanic's lien? We are in accord with the judgment of the learned court below that the ...