No. 786 April Term 1976, Appeal from the Judgment of the Court of Common Pleas, Civil Division, Clearfield County, at No. 75-1-MLD.
John P. Campana, Williamsport, for appellant.
Carl A. Belin, Clearfield, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
Appellant, Phillipsburg Construction Company, filed a mechanic's lien against appellee, Phillipsburg U.A.W. Housing Company. The lien was based on a construction contract between appellant as contractor (in a joint venture involving Commerce Construction Company and Penn State Construction, Inc.) and appellee as owner. Appellee filed preliminary objections in the nature of a motion to strike the lien, arguing, inter alia, that appellant had executed a waiver of liens, which had been timely filed. Mechanics' Lien Law of 1963, Act of Aug. 24, 1963, P.L. 1175, No. 497, art. I, § 101, 49 P.S. § 1101, et seq. Appellant filed no answer to the motion. At the hearing on the motion appellant admitted executing the waiver but asserted that the waiver was void because the owner and contractor were one; testimony was offered in support of this assertion. N.T. 15-16.
The lower court found it unnecessary to receive the offered testimony but granted the motion to strike, reasoning as follows:
If we assume that the owner and the contractor are not one and the same, then the waiver of Mechanic's Lien as it exists between the parties is valid and the Court must strike the subsequent filing of the Mechanic's Lien for that reason. If we assume that the contractor and the owner are one and the same, then the contract between the parties, as well as the Mechanic's Lien, must fail for the simple reason that it is well settled law that no man may contract with himself. Since the Mechanic's Lien Law of 1963 restricts the filing of a Mechanic's Lien to
that of a contractor or sub-contractor, it is obvious that, not only the waiver must be stricken, but also the Mechanic's Lien for the simple reason that no contract exists, either expressed or implied between the [appellant] and the [appellee], if they are, in fact, one and the same. Slip Opinion at 1-2.
Appellant first argues that the lower court erred in considering appellee's motion because the defense pleaded by the motion was not an "exemption or immunity of the property from lien . . ." Mechanics' Lien Law of 1963, supra, art. V, § 505, 49 P.S. § 1505. We need not consider this argument because appellant did not raise it below. Malin, et ux. v. Nuss, 234 Pa. Super. 259, 266, 338 A.2d 676, 680 (1975).*fn1
Appellant next argues that if the waiver of mechanic's lien is invalid, because the owner and contractor were one and the same (as appellant contended below), then appellee's motion should have been dismissed. Appellant relies on L-Co Cabinet Corp. v. Summit Square Apartments, Inc., 64 D. & C.2d 528 (1973).
In L-Co Cabinet the defendant filed preliminary objections in the nature of a motion to discharge a mechanic's lien. One basis averred for discharge was a stipulation against mechanic's liens. The plaintiff in response asserted that the owner and contractor were one and the same, and that ...