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EMPIRE EXCAVATING COMPANY v. LUZERNE COUNTY HOUSING AUTHORITY AND ANTHONY C. THOMAS (08/06/82)

filed: August 6, 1982.

EMPIRE EXCAVATING COMPANY
v.
LUZERNE COUNTY HOUSING AUTHORITY AND ANTHONY C. THOMAS, T/A LOCHE TWELVE CONSTRUCTORS. APPEAL OF ANTHONY C. THOMAS T/A LOCHE TWELVE CONSTRUCTORS



No. 2175 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Luzerne County, Civil Division, At No. 3002 of 1978.

COUNSEL

Sharon R. Bitzel, Hazelton, for appellant.

David M. Epstein, Scranton, for Empire, appellee.

Bernard J. Kotulak, II, Wilkes-Barre, for Luzerne County, appellee.

Wickersham, Popovich and Watkins, JJ.

Author: Watkins

[ 303 Pa. Super. Page 26]

This appeal comes to us from the order of the Court of Common Pleas of Luzerne County, Civil Division, and involves the issue of the validity of a mechanics' lien.

On October 11, 1977, Anthony C. Thomas, trading as Loche Twelve Constructors, entered into a contract of sale

[ 303 Pa. Super. Page 27]

    with the Luzerne County Housing Authority for the construction of eighteen (18) low-income housing units in Luzerne Borough. The project was federally financed and managed through the Department of Housing and Urban Development. Thomas then contracted with Empire Excavating Company for Empire to perform excavation work on the project.

On April 6, 1978, Empire filed a Mechanics' Lien Claim, alleging a non-payment of $18,352.56. Title to the premises was transferred to the Authority by deed of Thomas dated September 6, 1978. Empire filed a Complaint on September 27, 1979 and an Amended Complaint on October 21, 1979. Thomas and the Authority filed Answers and New Matter to the Complaint to which Empire filed a Reply.

Thomas and the Authority then moved for Judgment on the Pleadings alleging that the Mechanics' Lien was invalid. On August 20, 1980 the court below entered judgment in favor of Empire. Thomas took this appeal to this Court.

On appeal, Thomas is alleging that the mechanics' lien is invalid because The Pennsylvania Mechanics' Lien Law of 1963 (49 P.S. 1303(b)) states that no mechanics' lien is allowed for labor or material furnished for a purely public purpose. Section 303(b) of ...


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