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MALIN v. NUSS (04/22/75)

decided: April 22, 1975.

MALIN, ET UX., APPELLANTS,
v.
NUSS



Appeal from order of Court of Common Pleas of Montgomery County, No. 66-6814, in case of Michael H. Malin and Dorothy S. Malin v. Robert W. Nuss.

COUNSEL

C. Cushman, with him Steven R. Sosnov, Michael H. Malin, and Sosnov and Sosnov, for appellants.

George Willner, with him Pearlstine, Salkin, Hardiman and Robinson, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Price, J. Concurring Opinion by Hoffman, J. Spaeth, J., joins in this opinion.

Author: Price

[ 234 Pa. Super. Page 261]

This appeal raises questions requiring interpretation of the Mechanics' Lien Law of 1963, Act of August 24, 1963, P.L. 1175, No. 497 (49 P.S. § 1101 et seq.). We reverse the Order of the lower court and remand for trial.

In 1965, the plaintiffs-appellants, Michael H. Malin and his wife, Dorothy S. Malin, contracted with Tad Home Builders, Inc., for the construction of a residence on property owned by the Malins in Hatfield Township, Montgomery County. The defendant-appellee, Robert W. Nuss, was engaged by Tad Home Builders, Inc., as a subcontractor. Pursuant to Section 401 of the Mechanics' Lien Law of 1963 (49 P.S. § 1401), appellee signed a waiver of his right to file a lien claim.

When appellee was unable to obtain payment from Tad Home Builders, Inc., he filed a lien claim against appellants' property, in contravention of the executed waiver. Contending that the lien claim was filed for

[ 234 Pa. Super. Page 262]

"purely oppressive purposes," appellants filed a complaint in assumpsit on June 8, 1966, against appellee for breach of the waiver agreement. The complaint alleged damages of $7,850.00, purportedly arising from the legal fees incurred in defending against the lien claim, and from excess financing charges allegedly caused directly by Nuss' action. In Count II of the complaint, the appellants alleged additional and alternative damages of $4,540.00, which it is alleged they were wrongfully required to pay to Tad Home Builders, Inc., due to Nuss' filed lien claim.

On June 24, 1966, appellee filed preliminary objections to the complaint and, after argument, the court stayed action on the complaint and preliminary objections until the appellee's pending lien claim could finally be determined. Appellee was declared bankrupt in 1970, and the mechanic's lien claim was withdrawn by the trustee. Not until July 1, 1974, however, were the preliminary objections to the complaint in this case reargued. On July 2, 1974, the appellee's preliminary objections were sustained and the complaint dismissed.

The issues raised on this appeal are: (1) whether a cause of action exists for breach of an agreement to waive a mechanic's lien, and (2) whether the appellants may now amend their complaint to state a cause of action in trespass.

Our inquiry into the first issue begins with the general rule that a party who breaches a contract will be liable for the damages caused thereby. See Restatement of Contracts § 327 (1932). A waiver of lien agreement is basically a contract between two parties in which one party promises not to file a lien against property of the other. When the promisor files the lien claim in contravention of the waiver, he breaches his contract. ...


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