No. 1045 Philadelphia, 1981, No. 1208 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Berks County at Nos. 172 March 1977 A.D. and 39 June 1975 MLD.
Leonard J. Gajewski, Reading, for Ide, for appellants (at No. 1045) and appellees (at No. 1208).
Paul R. Ober, Reading, for Fisher, appellant (at No. 1208) and appellee (at No. 1045).
Cavanaugh, Wickersham and Cirillo, JJ. Cirillo, J., files a dissenting opinion.
[ 305 Pa. Super. Page 555]
This is an appeal from an order granting appellant Ide Convalescent Home (hereinafter Ide) a new trial and directing appellee/cross-appellant Fisher Sprinkler Co. (hereinafter Fisher) to file an amended complaint pursuant to the requirements of the Mechanics' Lien Law, Act of August 24, 1963, P.L. 1175, No. 497, 49 P.S. § 1101 et seq. The order is reversed.
The relevant facts are as follows. Fisher and Ide entered into a written contract, the terms of which provided that
[ 305 Pa. Super. Page 556]
Fisher was to install a sprinkler system in the Ide Convalescent Home in return for $33,245.00. After Fisher started work, the Pennsylvania Department of Labor and Industry informed Ide that it would no longer be allowed to operate its convalescent home. Fisher stopped work and, on June 11, 1975, filed a statement of mechanics' lien to recover $18,640.00, the value of the materials and labor alleged to have been provided under the contract.
Fisher's complaint identified the contract the claim was filed under and provided a general statement of the items and services for which recovery was sought. Ide filed preliminary objections to the complaint, contending that an itemized list of these materials and services was required. Ide's preliminary objections were dismissed. The case was tried and on September 13, 1979, a verdict of $11,390.00 in favor of Fisher was returned.
Ide filed exceptions to the findings and decision of the lower court and also filed a petition to strike mechanics' lien. The lower court stated, in an opinion dated March 26, 1981, that because Fisher was claiming the value of the materials and services it had provided to Ide in partially completing the sprinkler system, rather than the full contract price, the nature of Fisher's claim was in assumpsit based on a theory of quantum meruit rather than on the contract to install the sprinkler system. The lower court decided that Fisher's claim should have contained an itemized list of services and material provided rather than the general statement of such permitted by section 1503(5) of the Mechanics' Lien Law when the mechanics' lien claim is filed under a contract. The lower court directed that Fisher file an amended claim and complaint and granted a new trial. This appeal, and cross-appeal, followed.
Initially, we note that an order granting a new trial is appealable pursuant to Pa.R.A.P. 311(a) which ...