Appeal from order of Court of Common Pleas of Montgomery County, No. 71-00796, in case of Gunter Geiger Systems, Ltd. v. Aristocrat Upholstery Co., Inc.
Marvin L. Wilenzik, with him Morris Gerber, and Gerber, Davenport & Wilenzik, for appellants.
Martin G. Heckler, with him Waters, Fleer, Cooper & Gallager, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Montgomery, J. Jacobs, J., joins in this dissenting opinion.
[ 220 Pa. Super. Page 442]
Dissenting Opinion by Montgomery, J.:
This is an action in mechanics lien filed by claimant-appellant Gunter Geiger Systems, Ltd. (Geiger), against Aristocrat Upholstery Co., Inc., owner-appellee (Aristocrat). The lower court dismissed the claim on the basis of preliminary objections filed by Aristocrat.
[ 220 Pa. Super. Page 443]
The lower court in dismissing the claim relied on a fact pleaded in Aristocrat's preliminary objection, that is, paragraph 2 thereof, "On the date the last work was performed by Gunter Geiger Systems Ltd. (which was with regard to the preparation of drawings and specifications for a proposed factory building of Aristocrat Upholstery Co., Inc.) no construction contract had been awarded and no work on the proposed building had commenced on the ground." It applied its interpretation of the Mechanics' Lien Law of August 24, 1963, P. L. 1175, No. 497, art. II, § 201, 49 P.S. § 1201(4): "'Contractor' means one who, by contract with the owner, express or implied, erects, constructs, alters or repairs an improvement or any part thereof or furnishes labor, skill or superintendence thereto; or supplies or hauls materials, fixtures, machinery or equipment reasonably necessary for and actually used therein; or any or all of the foregoing, whether as superintendent, builder or materialman. The term also includes an architect or engineer who, by contract with the owner, express or implied, in addition to the preparation of drawings, specifications and contract documents also superintends or supervises any such erection, construction, alteration or repair." In effect, the lower court held that, since there could not have been any supervision of construction, Geiger as architect of the project could not file a mechanics' lien under the law.
I am dissenting for the reason that I believe that the question of the interpretation of § 1201(4) of the Mechanics' Lien Law of 1963 is not properly before us now for decision,*fn1 and that the lower court ...