No. 1041 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Indiana County, Civil Division, at No. 223 MLD 1979.
David J. Humphreys, Pittsburgh, for appellant.
Wayne A. Kablack, Indiana, for appellees.
Price, Watkins and Hoffman, JJ.
[ 289 Pa. Super. Page 156]
Appellant contends that the lower court erred in concluding that it had waived its right to file a mechanics' lien. We disagree and, accordingly, affirm the order of the court below striking appellant's mechanics' lien claim.
In early July, 1977, the parties entered into a "Continuing Agreement" for appellant to construct and/or maintain electrical generating stations owned and/or operated by appellees. Paragraph 1:02 of that contract provides:
It is the intent of the parties by entering into this agreement, to establish a general set of terms and conditions which will govern the parties['] mutual dealings with respect to the maintenance and/or construction of electric generating stations as set forth above. It is clearly understood that this agreement shall not be construed to confer upon [appellant] the exclusive right to perform maintenance and/or construction at the generating stations referred to above, but shall be the basis upon which the parties shall conduct their dealings from time to time,
[ 289 Pa. Super. Page 157]
when [appellees] in [their] sole discretion, shall elect to employ [appellant] for such purposes.
Paragraph 1:03 provides that construction or maintenance work would be awarded, from time to time, on a bid basis and that appellant would be "directed to proceed with the work contemplated . . . by [appellees'] Purchase Order which shall incorporate by references the terms and conditions in this Continuing Agreement." (Emphasis added.) Pursuant to paragraph 2:07.1 of the Continuing Agreement, appellant was to "provide and pay for all materials, labor, supervision, tools, equipment, transportation and other services and facilities necessary for the execution and completion of the work." Additionally, paragraph 2:52.1 of the Continuing Agreement contained the following waiver of liens provision:
It is understood and agreed that no lien shall at any time be filed against the premises upon which the work hereunder is performed, or any part thereof, by [appellant] or any subcontractor or other persons employed by or furnishing labor, equipment or materials to [appellant] or any subcontractor for, in, or about the performance of the work hereunder. In furtherance of this understanding and agreement, [appellant] shall, if requested by [appellees], execute a Waiver of Liens Agreement. The Waiver of Liens Agreement shall be filed in the Prothonotary's Office at the County Courthouse of the County where the work is performed. [Appellees] will require proof that this is filed prior to the time that any of [appellant's] men start work on the project.
(Emphasis added.) On September 6, 1978, appellees issued a Purchase Order authorizing appellant to undertake certain work at appellees' Conemaugh Generating Station. The September 6 Purchase Order expressly incorporated the terms and conditions of the Continuing Agreement. On December 6, 1978, appellees amended the September 6 Purchase Order by adding two pages of change orders. The December 6 ...