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MAR RAY v. ALBERT B. STARR AND WILLIAM K. KERSCHBAUMER (11/05/82)

filed: November 5, 1982.

MAR RAY, INC.
v.
ALBERT B. STARR AND WILLIAM K. KERSCHBAUMER, INDIVIDUALLY AND AS JOINT VENTURERS, APPELLANTS



No. 641 April Term, 1979, Appeal from the judgment of the Court of Common Pleas of Allegheny County, Civil Division No. 869 April Term, 1970, Sur Mechanic's Lien No. 86 January Term, 1970.

COUNSEL

Edward C. Leckey, Pittsburgh, for appellants.

Anthony J. Martin, Monroeville, for appellee.

Price, Brosky and Montgomery, JJ.

Author: Price

[ 306 Pa. Super. Page 309]

This is the second time this mechanic's lien has been before this court. In Mar Ray, Inc. v. Schroeder, 242 Pa. Superior Ct. 14, 363 A.2d 1136 (1976), we reversed the Court of Common Pleas of Allegheny County and held that the claim by Mar Ray, Inc. ("Mar Ray"), appellee herein, withstood the preliminary objections based on a waiver of lien clause filed by the appellants herein. A jury trial before the Honorable John P. Flaherty followed*fn1 and a verdict was returned for appellee in the full amount of its claim of $60,848.33. Appellants filed a motion for new trial and a motion for judgment n.o.v., both of which were denied. This appeal followed. We affirm the trial court.

[ 306 Pa. Super. Page 310]

The documentary evidence and recorded testimony of this case reveal a tangled morass of business dealings by appellants regarding the subject property located in the 26th Ward of the City of Pittsburgh known as Village in the Park to which they held a ninety-nine year land lease. Simply stated, on May 21, 1968 appellants contracted with the Arkay Construction Company ("Arkay") for the construction of an apartment complex on the aforementioned property. A waiver of liens agreement was recorded under this contract in the Office of the Prothonotary of the Court of Common Pleas of Allegheny County. Thereafter, on August 1, 1968, appellee executed a contract with Arkay to perform carpentry work in connection with the project, wherein appellee was designated the "subcontractor" and appellant the "contractor" and wherein appellee agreed to waive its right to lien.

On October 28, 1969, pursuant to the Mechanics' Lien Law, Act of August 24, 1963, P.L. 1175, No. 497, 49 P.S. 1101 et seq., appellee filed a Mechanic's Lien claim against appellants.*fn2 Therein, and in its subsequent complaint incorporating the Mechanic's Lien Claim, Mar Ray claimed, first, that Arkay was, in fact, controlled and owned by appellants and was used "as an agent, vehicle, or conduit" for the purpose of entering contracts to construct the buildings in Village in the Park and, second, that Arkay abandoned the job on June 15, 1969 at which time Mar Ray completed its carpentry work after receiving the oral promise of appellant Albert B. Starr to pay Mar Ray any and all sums due it for work and labor performed on the project.*fn3

[ 306 Pa. Super. Page 311]

In their first allegation of error, appellants strenuously argue that the admission of evidence and instructions to the jury on the issue of whether Arkay and appellants are a single entity*fn4 were erroneous because (1) this court's remand order restricted the trial to the issue of the existence of the oral contract with Starr, and, (2) the trial court acted improperly in instructing the jury on any reliance-related issue.

We cannot agree with appellants that this court's opinion in Mar Ray, Inc. v. Shroeder, 242 Pa. Superior Ct. 14, 363 A.2d 1136 (1976), restricted the scope of the trial on the merits solely to the issue of whether the lien was filed pursuant to the oral contract with appellant Starr which did not contain a waiver of liens, rather than pursuant to Mar Ray's original contract with Arkay which did contain such a waiver. We were quite specific in stating that the only issue decided was that Mar Ray's claim withstood the preliminary objections based on the waiver:

On this appeal, we do not decide the validity of appellant's [Mar Ray's] cause of action on the merits, nor do we decide the validity of any defense appellees may have on the merits . . . . The narrow question decided today is whether appellant's claim can withstand appellee's preliminary ...


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