No. 1436 PHILADELPHIA, 1980, Appeal from an Order of the Court of Common Pleas, Civil Division, of Monroe County, No. 8 April Term, 1979 E.D. and 772 January Term, 1979 J.D.
William H. Robinson, Jr., Stroudsburg, for appellant.
Charles P. Eyer, Jr., Stroudsburg, for Lawton-Huffman, participating party.
Mark S. Love, Stroudsburg, for Marshalls, participating party.
Hester, Disalle and Montgomery, JJ. DiSalle, J., did not participate in the consideration or review of this case.
[ 295 Pa. Super. Page 456]
This appeal involves what appears to be a question of First impression in this Commonwealth, to-wit:
"Under the Mechanics' Lien Law of 1963, Act of August 24, 1963, P.L. 1175, No. 497, as amended, 49 P.S. Section 1101 et seq, if a contractor files a waiver of liens and commences work on a structure prior to the recording of a mortgage, may other contractors who thereafter contract directly with the owner of the property obtain priority over the mortgage, on the basis of a Mechanics' Lien claim, in the distribution of the proceeds of a Sheriff's Sale?"
The basic facts are not in dispute. On September 14, 1977, Robert N. Hartman, a foundation contractor, filed a Waiver of Liens in the Prothonotary's Office of Monroe County, waiving for himself and for his subcontractors the right to file any Mechanics' Lien claims concerning the construction of a commercial building. On or about the same date, "visible commencement" of the excavation work
[ 295 Pa. Super. Page 457]
for the commercial building began on property owned by Pocono Web Press, Inc. On October 6, 1977, appellant Bank recorded a construction mortgage from Pocono in the amount of $310,000.00.
Appellee Lawton-Huffman, Inc. entered into a separate and independent contract with the owner, Pocono, to provide heating and air conditioning services and materials. Lawton began work on December 1, 1977, finished its work on December 29, 1977, and was not paid. Lawton filed a Mechanics' Lien on March 9, 1978 in the amount of $6,095.00 against Pocono.
Appellee Marshalls Creek Electric, Inc. entered into a separate and independent contract with the owner to provide services and materials. Marshalls began work on November 12, 1977, finished on January 4, 1978, and was not paid. Marshalls subsequently filed a Mechanics' Lien claim in the amount of $1,500.00 against Pocono.
Both mechanics' lien claims were perfected and taken to judgment in due course, and not challenged below in any respect, except as to their ...