Appeal from order of Court of Common Pleas of Delaware County, No. 1028 of 1963, M.L.D., in case of Walter F. McCarthy v. Dale L. Reese and Margaret Ann Reese, his wife.
Lloyd B. White, Jr., for appellant.
J. T. Mulligan, with him Francis R. Lord, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Musmanno join in this dissenting opinion.
This is an appeal from an order of the lower court dismissing plaintiff-claimant's rule to show cause why
the record satisfaction of his mechanic's lien should not be expunged. The order must be reversed.
Claimant is a general contractor who contracted to construct a building for Dale and Margaret Reese, defendant-owners. In connection with this contract claimant executed a waiver of mechanics' liens containing a warrant of attorney. The warrant, inter alia, empowers any attorney of any court of common pleas to appear for the claimant and mark satisfied of record, at claimant's cost, any mechanic's lien and is expressly irrevocable.
After claimant filed his lien the owners entered a rule on claimant to issue scire facias, with which claimant complied in due course. An affidavit of defense was filed, asserting, inter alia, the waiver agreement. After a pretrial conference the parties agreed to a trial before a judge without a jury. Thereafter, an attorney who had not theretofore appeared on behalf of either party exercised the warrant of attorney contained in the waiver by entering his appearance on claimant's behalf and marking the mechanic's lien satisfied. In its opinion, the lower court stated that this attorney acted at the instance of a title company. It is the action of this attorney which the lower court refused to expunge from the record. From this refusal the claimant appeals.
Claimant's right to a mechanic's lien was asserted under and must be regulated by the Mechanics' Lien Law of June 4, 1901, P. L. 431, as amended, 49 P.S. § 1 et seq., except that matters of practice and procedure arising on or after January 1, 1964, are regulated by §§ 701 through 706 of the Mechanics' Lien Law of 1963 and Pa. R.C.P. 1651 through 1660, insofar as these provisions and rules are pertinent.*fn1
It is clear that the right to file a mechanic's lien may be waived by agreement between the claimant and the owner. Act of June 4, 1901, P. L. 431, § 15, as amended, 49 P.S. § 71. But the question here is whether the waiver may be effectuated by obtaining and exercising an irrevocable warrant of attorney to mark the claim ...