Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, No. L228, in case of Brann & Stuart Company v. Consolidated Sun Ray, Incorporated et al.
Morris Wolf, with him Michael L. Temin, and Wolf, Block, Schorr and Solis-Cohen, for appellant.
William F. Scheid, Jr., for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissent.
On January 31, 1961 Brann & Stuart, appellee, filed a mechanic's lien against Consolidated Sun Ray, Inc.,
appellant. Appellee claimed a balance allegedly due pursuant to an oral and written contract with appellant for labor and material furnished in the construction of a warehouse.
On June 21, 1961, appellee issued a sci. fa. Pretrial motions occasioned five stays, four of which were granted on application of appellee and one stay was granted on application of appellant. Other delays occurred, such as a prior appeal by appellee to the Supreme Court and failure of appellee to proceed diligently, causing a considerable lapse of time.
On April 21, 1966, appellee recognizing the impact of § 10 of the Act of 1901, P. L. 431, 49 P.S. § 52, filed a petition for special listing with the administrative judge of Philadelphia County which should have been granted but was denied. The action came to trial on November 16, 1966. Before any testimony was taken, appellant filed a motion for judgment in its favor on the theory that the lien had been lost because appellee had failed to recover a verdict on its claim within five years from the date of issue of the sci. fa., as required by § 10 of the Mechanics' Lien Law of 1901.*fn1 The trial judge nevertheless permitted testimony to be offered on behalf of appellee, after which appellant renewed its motion for judgment which was subsequently denied and judgment was then entered in favor of appellee. It is that final judgment from which the present appeal has been taken.
As recently as Murray v. Zemon, 402 Pa. 354, 358 (1960), Mr. Justice Eagen said: "We must always bear in mind that this is not a common law action, but rather a claim to assert a peculiar type of lien against real estate under the provisions of a statute, strict compliance with which has always been demanded.
Such liens are purely creatures of statutes; they did not exist at common law. Consequently, they are available only on such terms as the ...