Appeal from the Order of the court of Common Pleas of Montgomery County, Civil at No. 85-04099.
Jack J. Hetherington, New Britain, for appellant.
Paul J. Mayewski, Spring House, for appellees.
Montemuro, Popovich and Cercone, JJ.
[ 368 Pa. Super. Page 359]
This is an appeal challenging an order of the Montgomery County Court of Common Pleas sustaining preliminary objections in the nature of a motion to strike for failure to state a cause of action and thereby dismissing appellant's mechanics' lien claim and complaint in action upon that lien. We affirm.
This action arises out of a construction project. Appellee Telford Industrial Development Authority is the legal owner of the shopping center involved in the construction project. Appellee Gwynedd Pike Associates ("Gwynedd"), by virtue of an installment sales agreement, is the equitable owner of the shopping center. The P.C.M. Group, Inc.
[ 368 Pa. Super. Page 360]
("P.C.M.") served as general contractor for the project and contracted directly with Gwynedd. Appellant Robert J. McLaughlin subcontracted with P.C.M. for the drywall construction. In the contract between appellant and P.C.M., appellant expressly waived his right to file any liens against the shopping center premises.*fn1
In spite of the waiver of liens provision in the contract, on February 6, 1985, appellant gave written notice to Gwynedd of his intention to file a mechanics' lien claim in the amount of $23,313.00 representing the sum allegedly owed to him for work completed on the construction project. See 49 P.S. § 1501(b). Appellant then filed a Mechanics' Lien Claim upon the owners of the property followed by a Complaint in Action Upon Mechanics' Lien. In the claim, appellant asserted that he had performed his obligations under the contract with P.C.M. but that payment was still due. The trial court dismissed his complaint, finding that "while a breach by the appellees certainly may give rise to a breach of contract action . . ., such a breach of contract does not affect the validity of the subcontractor's waiver of the right to file a mechanics' lien." Trial Court Opinion at 6-7 (footnote omitted).
[ 368 Pa. Super. Page 361]
Appellant argued in the trial court, as he does on appeal, that the contractual waiver of his right to file a mechanics' lien was not binding on him because appellees allegedly failed to adhere to their contractual obligations under the agreement between appellant and appellees, thus releasing him from any obligations that he had. The trial court disagreed with that contention, as do we.
The courts of this Commonwealth have held that where a contractor executes a valid waiver of its right to file a mechanics' lien, the validity of the waiver is not affected by the owner's breach of contract, as long as the contractor's ...