Appeal from the Order Entered March 27, 2012, In the Court of Common Pleas of Cumberland County, Civil Division, at No. 11-5233.
The opinion of the court was delivered by: Shogan, J.:
BEFORE: SHOGAN, LAZARUS and OTT, JJ.
Appellant, Neelu Enterprises, Inc. d/b/a KB Builders, appeals from the trial court's March 27, 2012 order sustaining Appellees', Ashok and Asha Agarwal's, preliminary objections to Appellant's mechanics' lien claim and dismissing Appellant's claim. We affirm.
The trial court set forth the relevant factual and procedural history as follows:
Neelu Enterprises, Inc., d/b/a KB Builders (hereinafter "Claimant") filed a Mechanics' Lien claim on June 23, 2011, against certain real property located at 2212 Eaglesmoor Lane, Hampden Township, Enola, PA 17025, in order to obtain payment for residential construction work performed on that property owned by Ashok and Asha Agarwal (hereinafter "Owners"). (Mechanics' Lien Claim, filed Jun. 23, 2011). The Claimant avers that, in November of 2008, the parties entered into a Construction Agreement for the building of a residential home, a copy of which was attached to the Claim, and that Claimant did complete a substantial portion of the work, for which it received payment in the amount of $585,000.
(Mechanics' Lien Clam, filed Jun. 23, 2011). Furthermore, Claimant avers that after it began construction of the home, yet prior to its completion, the Defendant Owners informed Claimant that their Agreement was being terminated, effective immediately, and that the Owners thereafter "brought in their own subcontractors ..." to finish the work on the new home construction. (Mechanics' Lien Clam, filed Jun. 23, 2011). As evidence thereof, the president of Claimant's business and the Owners signed a one page, hand-written agreement, dated December 8, 2010, whereby Claimant and Owners
"acknowledged that Agarwals were terminating Neelu's construction services and that Agarwals would be dealing with the subcontractors directly." (Termination Agreement, Claimant's Response, Ex. B, filed Dec. 12, 2011). As a result of the ousting, Claimant seeks the sum total of $96,000, which is based upon the denied profit remaining on the contract plus $20,000, which Claimant avers is due and owed to it for the purchase and installation of additional casement windows.
Owners have responded to the Mechanics' Lien Claim with preliminary objections, seeking, first, that the claim be stricken because it was filed more than six months after the completion of the work on the project and is thus in violation of the Mechanics' Lien Law, and, second, that the claim be stricken because of an alleged waiver by the Claimant of its right to file a mechanics' lien claim. (Preliminary Objections, filed Sep. 23, 2011). In their Preliminary Objections, Owners assert that the Claim is untimely because, although the Claim alleges that work was performed on the property from November 8, 2009 through January 10, 2011 by Neelu and its subcontractors, neither
Claimant nor its subcontractors performed any work on the property after October of 2010. (Preliminary Objections, 10, filed Sep. 23, 2011). Owners allege that Claimant had instead resigned as general contractor for the construction work on December 8, 2010, and, as evidence thereof, the parties signed the one page, hand-written agreement, whereby Claimant and Owners "acknowledged that Agarwals were terminating Neelu's construction services and that Agarwals would be dealing with the subcontractors directly." (Termination Agreement,
Claimant's Response, Ex. B, filed Dec. 12, 2011). Because the Mechanics' Lien Claim was not filed until June 23, 2011, the Owners seek a demurrer, as the claim was not filed within six months after the completion of the work performed.
Trial Court Opinion, 2/8/12, at 1-2. In a February 29, 2012 hearing on Appellees' preliminary objections, the trial court heard testimony on the question of when Appellant completed its work on Appellees' house in order to determine whether Appellant timely filed its mechanics' lien claim. Thereafter, the court issued an order sustaining Appellees' ...