Appeal from the Order entered March 19, 2008 In the Court of Common Pleas of Chester County Civil at No(s): 07-12260.
The opinion of the court was delivered by: Stevens, J.
BEFORE: STEVENS, KLEIN, and CLELAND, JJ.
¶ 1 This is an appeal from the Order entered in the Court of Common Pleas of Chester County on March 19, 2008, sustaining the Preliminary Objections of Appellees William C. Altig and Julie A. Altig (hereinafter "Appellees") and striking the Mechanics' Lien Claim filed by Appellant Floors, Inc., d/b/a Creative Touch Interiors (hereinafter "Appellant"). We affirm.
¶ 2 On December 19, 2007, Appellant filed its Mechanics' Lien Claim for $11,002.00 plus interest for labor and materials related to the installation of flooring at Appellees' newly constructed home located at 100 Jefferson Boulevard, Franklin Township, Chester County, PA 19352. Appellant averred it filed the claim as a subcontractor and had completed the work for which the claim was made on June 22, 2007. Mechanics' Lien Claim at ¶¶ 2, 4. Appellant indicated it had entered into an oral contract with the contractor F. Tropea Building Contractor, LLC and provided formal notice of its intention to file the claim by letter dated November 14, 2007. Mechanics' Lien Claim at
¶ 5, 7. Appellant further explained that F. Tropea Building Contractor, LLC contracted with the prior owner and developer of the property, Franklin Chase Holdings, LLC who in turn sold the property to Appellees.*fn1 Mechanics' Lien Claim at ¶ 6.
¶ 3 On February 14, 2008, Appellees filed their Preliminary Objections to the Mechanics' Lien Claim wherein they averred the claim is barred by a Stipulation of Waiver of Liens filed with the Chester County Prothonotary on July 19, 2006, and entered into by Franklin Chase Holdings, LLC, and F. Tropea Building Contractor, LLC, which prevents the contractor, every subcontractor, materialman or any other person furnishing labor or material to the contractor from filing a mechanics' lien for their labor or materials. [Appellees'] Preliminary Objections, at ¶ 2. Appellees noted that the Stipulation of Waiver Liens was properly filed before Appellant began work at Appellees' home so that Appellant was on record notice it could not seek mechanics' lien relief. [Appellees'] Preliminary Objections, at ¶ 5. In addition, Appellees also asserted that as they obtained the property for valuable consideration from the developer on October 5, 2007, which was after the June 22, 2007, date on which Appellant claimed it last furnished material and before the lien was filed on December 19, 2007, the lien has been "wholly lost" and must be dismissed with prejudice pursuant to 49 P.S. § 1303. [Appellees'] Preliminary Objections, at ¶ 7-8. Appellees attached an unexecuted copy of the Stipulation of Waiver Liens to their Preliminary Objections as Exhibit "A".
¶ 4 In response to Appellees' Preliminary Objections, Appellant argued the alleged Stipulation of Waiver of Liens attached thereto had not been executed and is therefore invalid. [Appellant's] Response to [Appellees'] Preliminary Objections at ¶ 2. Moreover, Appellant also asserted the 2006 Amendments to the Pennsylvania Mechanics' Lien Law of 1963, 49 P.S. § 1101, et seq. apply to the work at issue, it did not waive its right to a lien in any manner permitted by 49 P.S.§ 1401(a)(2),*fn2 and as the lien is for the erection and construction of a new improvement, not an alteration and repair, 49 P.S. § 1303(c)*fn3 is inapplicable.*fn4
¶ 5 The trial court filed its Order on March 19, 2008, sustaining Appellees' Preliminary Objections and striking Appellant's Mechanics' Lien Claim. In a footnote attached thereto, the trial court noted Appellant did not deny the stipulation had been filed and indexed and, therefore, admits the allegations in Appellees' Preliminary Objections averring as much. The trial court further noted it had reviewed the file in the Court of Common Pleas of Chester County at No. 06-06226 wherein it found the entire Stipulation of Waiver of Liens which included the final page that had been omitted from the copy attached as Exhibit "A" to Appellees' Preliminary Objections. This page revealed Franklin Chase Holdings, LLC and F. Tropea Building Contractor, LLC through their duly authorized representatives, had executed the stipulation.
¶ 6 The trial court also noted that Appellant's assertion a subcontractor can be barred from asserting a mechanics' lien claim only if the subcontractor has waived its right to file such a claim pursuant to § 401(a)(2) of the Mechanics' Lien Law, 49 P.S. § 1401(a)(2), would render § 402 of the Mechanics Lien Law, 49 P.S. § 1402, mere surplusage, as the latter section deals only with the effect on a subcontractor of a waiver by a contractor and provides that under circumstances which the trial court deemed to be present in the within matter, "a duly executed, filed and indexed written document can serve to bar the filing of a mechanics' lien claim by a subcontractor." See Trial Court Order, filed March 19, 2008, n.1.
¶ 7 On April 9, 2008, Appellant filed a timely Notice of Appeal, and on that same date the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed its Concise Statement of Matters Complained of on Appeal on April 28, 2008.
¶ 8 In his brief, Appellant presents the following Statement of Questions Involved:
A. Where all other statutory requirements are met, may a subcontractor file a mechanics' lien where the subcontractor did not waive its lien rights as provided by law?
B. When sustaining preliminary objections seeking to strike a mechanics' lien, may a trial court take judicial notice of a document outside of the record and rely upon that document as a basis for striking the lien?
C. Where a lien claimant provides labor and materials for the erection and construction of a residential dwelling, and the property was conveyed prior to the claimant filing its mechanics' lien, may the ...