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JOHN B. KELLY v. PHOENIX PLAZA (10/06/77)

decided: October 6, 1977.

JOHN B. KELLY, INC. OF PENNSYLVANIA, SUBCONTRACTOR
v.
PHOENIX PLAZA, INC., PHOENIX PLAZA ASSOCIATES AND B. BORNSTEIN & SONS, INC., OWNER OR REPUTED OWNER AND B. BORNSTEIN & SONS, INC., CONTRACTOR. JOHN B. KELLY, INC. OF PENNSYLVANIA, CONTRACTOR V. PHOENIX PLAZA, INC., PHOENIX PLAZA ASSOCIATES, AND B. BORNSTEIN & SONS, INC., OWNERS OR REPUTED OWNERS. APPEALS OF JOHN B. KELLY, INC. OF PENNSYLVANIA



Appeals from the Orders dated August 24, 1976, and August 27, 1976, of the Court of Common Pleas of Chester County, Pennsylvania, Civil Action - Law Division at Nos. 103-1976 and 5657-1975.

COUNSEL

Russell D. Henkin, Philadelphia, with him David Berger, Philadelphia, for appellant.

Melva L. Mueller, West Chester, for appellees, Phoenix Plaza, Inc., Phoenix Plaza Associates.

No appearance entered nor brief submitted for appellee, B. Bornstein & Sons, Inc.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Jacobs

[ 249 Pa. Super. Page 414]

This appeal raises two issues. May a waiver of mechanics' liens be raised by preliminary objections to the claim and, if so, was this a proper case in which to strike the lien. We hold that the waiver could be raised in this case by preliminary objections but that the lower court improperly struck the claim. We will reverse and remand.

On July 6, 1974, appellant, John B. Kelly, Inc., of Pennsylvania, (hereinafter Kelly) entered into a contract with B.

[ 249 Pa. Super. Page 415]

Bornstein & Sons, Inc. (hereinafter Bornstein). This contract required Kelly to furnish and install gypsum wallboard upon the premises of appellees, Phoenix Plaza, Inc., and Phoenix Plaza Associates, (hereinafter Phoenix). The premises are known as French Creek Mall and are located in Chester County, Pennsylvania. Paragraph 19 of the contract between Kelly and Bornstein contained a waiver of mechanics' liens in favor of "the parties" and covering work to be performed under the contract and any "supplemental" agreement between the parties.

On September 13, 1975, because of substantial defaults by Bornstein, Phoenix terminated Bornstein as general contractor and general partner.*fn1 Subsequently, on September 17, 1975, appellee Phoenix notified Kelly by telegram and mailgram of its actions with respect to Bornstein and guaranteed payment to Kelly for all future work and for all work performed at the Mall during July, August and September of 1975 in return for appellant performing the work that it had originally agreed to under the first contract and subsequent change orders. In the telegram and mailgram no mention was made of a waiver of mechanics' liens.*fn2

On November 18, 1975, appellant Kelly filed its first mechanics' lien against the French Creek Mall, the claims being directed against Phoenix and Bornstein. Then on February 4, 1976, Kelly again filed a mechanics' lien in the amount of $84,962.00 against the Mall and the same parties. Phoenix filed preliminary objections*fn3 ...


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