No. 286, April Term 1978, No. 146, April Term 1979, Appeal from Order entered September 28, 1977, and Judgment entered February 2, 1979 in the Court of Common Pleas, Civil Action - Law of Erie County at No. 1979-A-1975.
Eugene J. Brew, Jr., Erie, submitted a brief on behalf of appellant.
Robert N. Spaeder, Erie, for appellee.
Price, Hester and Cavanaugh, JJ.
[ 278 Pa. Super. Page 325]
D. A. Hill, the appellant in this case, was an individual in the plastering and dry wall business and a subcontractor on the construction of a shopping center known as Edinboro Village Plaza. The developer of the shopping mall on which appellant performed work was the appellee, Edinboro Development, Inc. The original general contractor on the job was
[ 278 Pa. Super. Page 326]
G. C. Bruno, an individual. The appellee apparently ran into financial difficulties and in January 1975, the appellant filed a mechanics' lien claim for labor and material furnished in connection with the shopping center. In May 1975, the appellant filed a complaint in Assumpsit against appellee based on the mechanics' lien claim. Appellee filed a motion for summary judgment, which was granted by the court below and judgment was entered in favor of appellee. The appellant has appealed to this Court from the summary judgment entered against him.
The basic facts in this case are not in dispute. In July 1973, Edinboro Inn, Inc., which subsequently changed its name to Edinboro Development, Inc., made plans to build a shopping center in Erie County on which project G. C. Bruno was to be the general contractor. On July 18, 1973, before any work was started on the shopping plaza, a mechanics' lien waiver, entitled, "Stipulation Against Mechanics' Liens," was filed in the Prothonotary's Office of the Court of Common Pleas of Erie County listing Edinboro Inn, Inc. as the owner of the property on which the construction was to take place and G. C. Bruno as the contractor. On March 22, 1974 a second mechanics' lien waiver was filed with the prothonotary covering the plaza which was then under construction, listing Edinboro Development, Inc. as the owner and Drakes Mill Development Company as the contractor.
Hill began his work on the Village Plaza project as a subcontractor on approximately June 1, 1974 and did no further work after December 13, 1974. The balance allegedly owed to appellant for his labor and materials as subcontractor was in excess of $44,000.00 at the time appellant ceased working on the project. During all of his time on the job, the appellant dealt exclusively with G. C. Bruno, the general contractor, and was paid on account by Bruno. Appellant submitted invoices only to Bruno when monies were due to him and he had no dealings at all with appellee.
In March, 1974, Edinboro Development, Inc. executed a first mortgage in favor of CleveTrust Realty Investors in the amount of $2,200,000.00 and the mortgage was recorded
[ 278 Pa. Super. Page 327]
in the Office of the Recorder of Deeds for Erie County. In February, 1975, less than one year after the mortgage was executed, Edinboro Development, Inc. was in default on the mortgage and CleveTrust instituted mortgage foreclosure proceedings against Edinboro. Edinboro's precarious financial position rapidly became apparent to appellant and others and, on March 7, 1975, appellant and other creditors filed a petition for involuntary bankruptcy against Edinboro Development, Inc. in the Bankruptcy Court for the Western District of Pennsylvania. Appellant submitted a claim in the bankruptcy court for approximately $44,000.00. On March 20, 1975, Edinboro filed petition for arrangement under Chapter XI of the ...