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TESAURO v. BAIRD ET AL. (02/27/75)

decided: February 27, 1975.

TESAURO, APPELLANT,
v.
BAIRD ET AL.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1972, No. J-72-817, in case of Don Tesauro v. Carl Baird, Jack Miller, Milton Schwartz, Henry B. Cohn, and Jerry Atlas, Co-Partners, t/a Executive Associates and Philadelphia Authority for Industrial Development.

COUNSEL

Murray H. Shusterman, with him Charles M. Solomon, and Fox, Rothschild, O'Brien & Frankel, for appellant.

Arthur Alan Wolk, with him Elliott J. Cherry, and Narin & Chait, for appellees.

Watkins, P. J., Jacobs, Cercone, Price, Van der Voort, and Spaeth, JJ. (Hoffman, J., absent). Opinion by Cercone, J. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 232 Pa. Super. Page 187]

This is an appeal from an order sustaining the appellees' preliminary objections to the appellant's mechanic's lien claim and ordering the mechanic's lien claim stricken from the mechanic's lien docket.

The appellant, as a contractor engaged by the owners, allegedly demolished a building formerly located at 1521-23 Locust Street, Philadelphia, Pennsylvania, and closed the premises, filled and graded the area, shored, underpinned, rough coated and stuccoed adjacent walls, and removed a wall and replaced substitute material, all in preparation for the contemplated construction of a new building. After completing this work the appellant filed a mechanic's lien claim with the Prothonotary of Philadelphia County and on that same day served copies of the claim on each of the appellees' duly authorized agents. The copies of the claim served upon the appellees showed the court and term, but did not show the term number or date of filing of the claim.

As a result of the omission of the number and date of filing, the appellees contend that they were not served with the proper written notice of filing of the mechanic's lien claim within one month after filing as expressly required by Section 502(a) (2) of the Mechanics' Lien

[ 232 Pa. Super. Page 188]

Law of 1963.*fn1 On this basis the appellees further contend that since they were not served notice of filing and since more than four months have elapsed since the completion of the appellant's work, the appellant's claim is barred pursuant to Section 502(a) (1) of the Mechanics' Lien Law of 1963.

Section 502 of the Mechanics' Lien Law of 1963 provides:

"a. Perfection of Lien. To perfect a lien, every claimant must:

(1) file a claim with the prothonotary as provided by this act within four (4) months after the ...


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