Appeal, No. 143, March T., 1960, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1957, No. M.L. 3, in case of Theodore R. Murray v. Leonard Zemon et al. Judgment affirmed; reargument refused February 10, 1961.
James A. Danahey, with him J. I. Simon, for appellant.
John B. Nicklas, Jr., with him McCrady and Nicklas, for appellee.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
Appellant-contractor filed a Mechanics' Lien claim against appellee-owners and Leonard Zemon, tenant, for improvements made to the former's premises. Subsequently, the court permitted an amended lien to be filed and later, concluding that this claim was invalid, sustained a motion to strike it off. The legal correctness of this ruling is challenged by this appeal.
The narrow question presented is whether the facts pleaded in support of the lien satisfy the requirements of the Mechanics' Lien Act of June 4, 1901, P.L. 431, § 2 (49 PS § 24), which provides as follows: "Nor shall any claim be valid, against the estate of an owner, by reason of any consent given by him to his tenant to improve the leased property, unless it shall appear in writing, signed by such owner, that said improvement was in fact made for his immediate use and benefit."
The court below correctly concluded that the writing required by the law was never executed.
For the purpose of this proceeding the facts well pleaded must be assumed to be true. Mere conclusions of fact or law are not in this category. The facts pleaded may be summarized as follows: The premises involved had been utilized for years as a commercial abattoir, a nonconforming use under existing zoning ordinances. Zemon was in possession by virtue of a written lease. There is nothing of record which could support a judicial conclusion that the terms of the lease in any way constituted consent on the part of the owner, given to the lessee-appellees, to make repairs to the building upon the credit of the owners or the building itself. On or about June 18, 1956, the Department of Health of the City of Pittsburgh notified Zemon that the slaughterhouse operations had to cease. As a result, an attorney, representing Zemon, consulted with a representative of the Department of Health and discussed
the making of renovations to the building to satisfy the Department of Health's requirements. Plans were drawn up by an architect. A permit to make the repairs was granted by the Bureau of Building Inspection on September 25, 1956. The work began October 25, 1956. On November 1, 1956, the contractor entered into a written contract with the tenant covering the work, which included replacement and reconstruction of certain portions of the building. The former knew who owned the premises. The owners were not parties to the contract, and its terms clearly disclose that the contractor, as of that time, was relying solely on the credit of the tenant. However, the contract was entered into with the knowledge and oral consent of the owners and they had previously agreed to help obtain the money necessary to pay for the repairs by executing a mortgage on the premises. The tenant, in turn, had agreed with the owners to enter into an extension of the lease for the building as renovated.
On November 3, 1956, at a time when two-thirds of the work had been completed, the Director of Health of the city filed an appeal from the issuance of the building permit. The continuance of the work desisted. This appeal was dismissed on November 26, 1956. The work resumed. On December 5, 1956, the city served on the tenant a closing notice. This was followed by an equity action, on behalf of the city, to restrain. The owners and the tenant, as parties-plaintiff, filed a cross action in equity (complaint sworn to on December 10, 1956) seeking to enjoin the city from closing the operation. Testimony of the husband-owner taken at the hearing in this action showed his knowledge of and agreement to the making ...