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DUNHAM-BUSH v. MURRAY'S 51 LANES (11/12/63)

November 12, 1963

DUNHAM-BUSH, INC., APPELLANT,
v.
MURRAY'S 51 LANES, INC.



Appeal, No. 184, March T., 1963, from order of Court of Common Pleas of Westmoreland County, No. 23680 M.L.D., in case of Dunham-Bush, Inc. v. Murray's 51 Lanes, Inc. and Al Godla. Order reversed.

COUNSEL

Daniel J. Snyder, with him Avra N. Pershing, Jr., and Pershing, Snyder and Ciarimboli, for appellant.

Morris M. Berger, with him Daniel M. Berger, Bernard S. Shire, and Berger & Berger, and Ezerski & Shire, for appellee.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Jones

[ 412 Pa. Page 425]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This appeal challenges the availability of a petition to strike off a mechanic's lien to invoke the provisions of a no-lien stipulation, i.e., a stipulation against liens, between an owner and a general contractor to invalidate the lien.

Murray's Lanes, Inc. (Murray's), is the owner of certain real property in Rostraver Township, Westmoreland County. Murray's entered into a contract with one Al Godla (Godla), as general contractor, for the erection and construction by Godla of a building on said property wherein bowling was to be conducted. On February 6, 1961, as part of the general contract, Murray's and Godla entered into a no-lien stipulation which was duly filed in the office of the Prothonotary of Westmoreland County on March 1, 1961.

On February 19, 1962, Dunham-Bush, Inc. (Dunham-Bush), filed a mechanic's lien against Murray's building, together with the bowling lanes, the amount of said lien being $18,999.98 with interest from August 24, 1961. On July 27, 1962, Murray's filed a petition to strike off this lien and the Court of Common Pleas of Westmoreland County granted a rule on Dunham-Bush to show cause why the lien should not be stricken. On November 29, 1962, Dunham-Bush filed an answer to the petition to strike off the lien. On May 22, 1963, the court, with Judge KEIM dissenting, made the rule absolute and directed that the lien be stricken. From that order this appeal was taken.

The petition to strike off the lien was based on two grounds: (1) the notice of intention to file the lien failed to set forth the name of the party with whom

[ 412 Pa. Page 426]

Dunham-Bush contracted;*fn1 (2) the provisions of the no-lien stipulation between Murray's and Godla precluded the filing of this lien. By way of answer, Dunham-Bush averred: (1) the notice of intention to file the lien contained, both in the caption and the body, the name of Godla as contractor and attached to the notice was a copy of the invoice to Godla for materials furnished, all of which revealed Godla as the contractor; (2) although admitting the existence and the filing of the no-lien stipulation, the validity as to Dunham-Bush of such stipulation was denied because prior to the time labor and materials were furnished Dunham-Bush had no notice of such stipulation and, after reasonable investigation, Dunham-Bush was without information or knowledge sufficient to form a belief whether the stipulation was filed prior to commencement of the work or within 10 days after execution of the stipulation or not less than 10 days prior to the Godla-Dunham-Bush contract.*fn2

The real thrust of Dunham-Bush's argument is that in striking off this lien the court did so upon matters dehors the record, i.e., the provisions of the no-lien stipulation. While conceding that the propriety of a petition to strike off a mechanic's lien may not be determined by matters dehors the record, Murray's takes the position that, by reasons of a statement in the lien itself as to the date work commenced on the property and certain averments in the petition taken together with the ...


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