Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 2936 March Term, 1986.
Mark B. Herrera, Philadelphia, for appellant.
John J. Rendemonti, Devon, for appellee.
Cirillo,*fn* President Judge, and McEwen and Montemuro, JJ.
[ 364 Pa. Super. Page 461]
This is an appeal from an order of the Court of Common Pleas of Philadelphia County sustaining appellee's preliminary objections to appellant's mechanic's lien claim. The court of common pleas found that appellant had waived its right to file such a claim and, accordingly, struck the lien. We affirm.
On January 31, 1986, appellant Sullivan Construction Company, as general contractor, filed a mechanic's lien against certain premises owned by appellee, Historical Arch Street Development Associates. Appellant had performed labor and furnished materials pursuant to a contract between
[ 364 Pa. Super. Page 462]
the parties. On March 17, 1986, appellant filed a complaint upon the lien. Appellee filed preliminary objections to the complaint and alleged, inter alia, that appellant had signed a waiver of mechanic's lien dated May 23, 1985. A copy of the waiver was attached to the preliminary objections thereby making it a part of the record. Appellant responded to the preliminary objections and admitted the execution of the waiver. Appellant denied, however, that the waiver was ever delivered to appellee. Appellant asserted that, because there was no delivery of the original of the waiver agreement, "there was never any intent to waive and relinquish all rights to file a mechanic's lien." Appellant's Answer to Preliminary Objections para. 9. The court of common pleas, as do we, rejected this argument.
This appeal raises two issues: (1) whether non-delivery of the original of a validly executed waiver of lien renders the waiver invalid and unenforceable; and (2) whether the court of common pleas prematurely struck the mechanic's lien prior to the taking of depositions.
The Mechanic's Lien Law of 1963, 49 Pa.S.A. § 1505, provides that:
[a]ny party may preliminarily object to a claim upon a showing of exemption or immunity of the property from lien . . . . The court shall determine all preliminary objections. If an issue of fact is raised in such objections, the court may take evidence by deposition or otherwise . . . .
See also Mar Ray, Inc. v. Schroeder, 242 Pa. Super. 14, 363 A.2d 1136 (1976) (a waiver of liens issue may be raised preliminarily as long as ...