J-A05024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KRESS BROTHERS BUILDERS, L.P., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
PATRICIA L. WILLIAMS, DALE HILL AND
JACQUELINE WILLIAMS,
Appellees No. 930 WDA 2016
Appeal from the Order Entered June 15, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD15-010117
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 23, 2017
Appellant, Kress Brothers Builders, L.P., appeals from the June 15,
2016 order sustaining the preliminary objections filed by Appellees, Patricia
L. Williams, Dale Hill and Jacqueline Williams (hereinafter “Owners”), and
dismissing Appellant’s Amended Complaint to Enforce Mechanics’ Lien. After
careful review, we reverse and remand.
The relevant facts and procedural history were set forth by the trial
court in its Pa.R.A.P. 1925(a) opinion, as follows:
This matter arises from [Appellant’s] filing of a Mechanics’ Lien
Claim against the [Appellees]/Owners, Patricia L. Williams, Dale
Hill and Jacqueline Williams, for work performed on their
Property located at 1421 Columbus Avenue, Allegheny County,
Pennsylvania 15212. The Owners are sisters who own the
Property but live in other states. George Saddler [(hereinafter
“Mr. Saddler”)], the Owners’ tenant, hired [Appellant] to
renovate and remodel the Property after it sustained damage
due to bursting water pipes. Mr. Saddler signed a contract with
J-A05024-17
[Appellant] to repair the damage for $15,722.63. He paid
$3,483.49 leaving a balance of $12,239.14. When [Appellant]
was not paid the balance, [it] filed a Mechanics’ Lien against the
Property on June 11, 2015. The Owners were notified of the
Mechanics’ Lien several months later when they received a copy
in the mail. The Owners failed to pay and [Appellant] filed a
Complaint to Enforce Mechanics’ Lien Claim on November 12,
2015. The Owners filed Preliminary Objections to the Complaint
and a Motion for Sanctions on January 25, 2016.
Trial Court Opinion (“TCO”), 10/12/16, at 1-2.
On March 14, 2016, the trial court denied the Owners’ Motion for
Sanctions and granted Appellant twenty (20) days to file an amended
complaint. Appellant filed an amended complaint on March 30, 2016. In
response, the Owners again filed preliminary objections 1 and a motion for
sanctions. The trial court entered an order dated June 15, 2016, dismissing
Appellant’s amended complaint with prejudice. On June 28, 2016, Appellant
filed a notice of appeal, followed by a timely Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
Appellant now presents the following issues for our review:
1. Whether the [t]rial [c]ourt erred and committed an error of
law in sustaining the preliminary objections filed by [Owners]
and dismissing with prejudice [Appellant’s] Amended
Complaint to Enforce Mechanics’ Lien Claim without
considering as true all well[-]pleaded facts set forth therein
____________________________________________
1
Owners’ filed their preliminary objections pursuant to Section 1505 of the
Mechanics’ Lien Law, which provides “[a]ny party may preliminarily object to
a claim upon a showing of exemption or immunity of the property from lien,
or for lack of conformity with this act.” 49 P.S. § 1505.
-2-
J-A05024-17
and all reasonable inferences that can be drawn therefore
[sic]?
2. Whether the [t]rial [c]ourt erred and committed an error of
law in finding that Section 1303(d) of the Mechanics’ Lien Law
(49 P.S. § 1303(d)) is applicable in the case sub judice,
particularly when Appellant’s Amended Complaint to Enforce
Mechanics’ Lien Claim never alleged that [Mr. Saddler] was
[Owners’] tenant; that a landlord/tenant relationship existed;
or that a leased premise even existed?
3. Whether the [t]rial [c]ourt erred and committed an error of
law in holding that Section 1303(d) of the Mechanics’ Lien
Law (49 P.S. § 1303(d)) is an absolute bar to a mechanics’
lien claim?
4. Whether the [t]rial [c]ourt erred and committed an error of
law in sustaining the preliminary objections filed by Appellees
and dismissing with prejudice Appellant’s Amended Complaint
to Enforce Mechanics’ Lien Claim when Appellant should have
been allowed to conduct discovery to determine:
a. Whether any landlord/tenant relationship existed between
[Mr. Saddler] and [Owners] and, if any relationship, the
terms of that relationship;
b. Owners’ knowledge of [Mr. Saddler] holding himself out as
owner of the subject property with respect to the case sub
judice and in prior instances;
c. [Owners’] knowledge of Appellant’s work being done to the
subject property;
d. [Owners’] knowledge of the terms of the contract at issue
in the case sub judice;
e. Whether [Owners] provided consent to [Mr. Saddler] with
respect to the contract at issue in the case sub judice
and/or past contracts related to the subject property; and
f. [Owners’] knowledge of the second check issued by The
Hartford Insurance Company that has never been provided
to Appellant?
Appellant’s Brief at 3-5.
-3-
J-A05024-17
Before addressing the merits of Appellant’s claims, we set forth our
standard of review. It is well-established that,
[i]n determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents and
exhibits attached thereto, in order to evaluate the sufficiency of
the facts averred.
Our inquiry goes only to determining the legal sufficiency of
[the] appellant’s complaint and we may only decide whether
sufficient facts have been pleaded which would permit recovery
if ultimately proven. We must be able to state with certainty
that upon the facts averred, the law will not permit recovery by
the plaintiff.
This Court will reverse the trial court’s decision only where there
has been an error of law or abuse of discretion. Further, when
the sustaining of preliminary objections results in the denial of a
claim or the dismissal of a suit in a mechanics’ lien proceeding,
preliminary objections should be sustained only where the case
is clear and doubtless.
Wendt & Sons v. New Hedstrom Corp., 858 A.2d 631, 632 (Pa. Super.
2004) (internal quotation marks and citations omitted).
To begin, we note “[t]he Mechanics’ Lien Law, Title 49 of
Pennsylvania’s Statutes, is a creation in derogation of the common law and,
therefore, any question of interpretation shall be resolved in strict, narrow
construction. To effectuate a valid Mechanics’ Lien claim, the contractor …
must strictly comply with the requirements of Title 49.” Wyatt PNC v.
Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa. Super. 2009)
(internal citations omitted). See also 49 P.S. §§ 1101–1902. Moreover,
“[t]he right to the lien arises not from the act of furnishing the labor and
materials, but rather from the debt arising therefrom. The right to file a
-4-
J-A05024-17
mechanics’ lien must have a contract as its basis.” Murray v. Zemon, 167
A.2d 253, 255 (Pa. 1960).
Here, the underlying contract was entered into between Appellant and
Mr. Saddler, the tenant. The record reflects that no contractual relationship
exists between Appellant and Owners. However, Appellant asserts that
throughout its dealings with Mr. Saddler, Mr. Saddler misrepresented himself
as the owner of the property and that “[a]t no time did Mr. Saddler ever
advise Appellant that he was a tenant, rather than the owner of the
Property.” Appellant’s Brief at 7. Appellant further avers that Owners “not
only knew that Mr. Saddler was advising third parties that he was the owner
of the Property, but that they gave their consent and authorization to Mr.
Saddler to advise third parties that he was the owner of the Property; to
make improvements and repairs to the Property; and to contract with third
parties to make improvements and repairs to the Property.” Id. at 8-9.
It has been well-established that even if the owners had knowledge of
and consented to repairs or renovations to the Property, that is not sufficient
in itself to sustain a mechanics’ lien claim against Owners. See Fluke v.
Lang, 128 A. 663, 663-64 (Pa. 1925) (observing “[l]iability is not predicated
merely upon the fact that the owner knows a contract is to be made for work
to be done on his property; he must also know that the person who intends
to make it is ‘acting as if he were the owner’”). In order for the claim to be
valid against Owners, where they are not a party to the contract, their
consent must appear in the form of a written statement, signed by Owners,
-5-
J-A05024-17
and the statement must state that the improvements to the Property are
being made for their immediate use and benefit. See Murray, 167 A.2d at
256 (adding “[t]his [written statement] is a condition precedent. The claim
filed must on its face show the existence of such consent to satisfy this
requirement”); see also 49 P.S. § 1303(d).2 There is no such written
statement by Owners in the present case.
In its 1925(a) opinion, the trial court reasoned, “where a contractor
enters into an agreement for property improvements with a tenant and fails
to obtain ‘written notice’ from the property owners consenting to the
improvements, as required by Section 1303(d), the mechanics’ lien
complaint should be dismissed pursuant to the owner’s preliminary
objections.” TCO at 2 (citing Key Auto. Equip. Specialists, Inc. v.
Abernathy, 636 A.2d 1126, 1128 (Pa. Super. 1994)). However, it is
important to note that our holding in Key Auto. Equip. Specialists, Inc.
was premised on our determination that the owners acted in good faith in
____________________________________________
2
In 1963, the Mechanics’ Lien Law was amended to include Section 1303(d),
which provides as follows:
Leasehold premises. No lien shall be allowed against the estate
of an owner in fee by reason of any consent given by such owner
to a tenant to improve the leased premises unless it shall appear
in writing signed by such owner that the erection, construction,
alteration or repair was in fact for the immediate use and benefit
of the owner.
49 P.S. § 1303(d) (emphasis added).
-6-
J-A05024-17
their dealings with the contractor and that throughout contract negotiations,
the contractor was fully aware that it was entering into a contract with the
tenant, and not the owner of the property. Id. at 1130. In our analysis, we
noted that these facts were distinguishable from those in Chambers v.
Todd Steel Pickling, Inc., 470 A.2d 159 (Pa. Super. 1983), where “we
found that estoppel may lie against the true owner of property, despite the
absence of the written notice requirement of section 1303(d), where facts
have been withheld and where the property owner did not act in good faith
throughout the transaction.” Key Auto. Equip. Specialists, Inc., 636 A.2d
at 1130 (quoting Chambers, 470 A.2d at 164) (emphasis added).
We find Chambers to be more analogous to the case presently before
us. Thus, we reiterate our summary of Chambers, as follows:
In Chambers, Robert Berger, the president and sole stockholder
of Todd Steel Pickling, Inc. (Todd Steel) entered into a
construction contract with George Chambers to build a
residential home on property leased to Berger by Todd Steel. In
negotiating this agreement, Berger led Chambers to believe that
he was the actual owner of the property and, therefore, did not
disclose that the property was leased to him by the owner, Todd
Steel. Chambers did not obtain a written waiver from Todd Steel
as required under section 1303(d).
After Mr. Berger failed to make certain payments, [Mr.]
Chambers filed a mechanics’ lien against both [Mr.] Berger and
Todd Steel. Todd Steel filed preliminary objections, seeking the
protection of the Mechanics’ Lien Act. The trial court agreed,
holding that as [Mr.] Chambers failed to obtain a section
1303(d) written waiver from Todd Steel, [Mr.] Chambers could
not seek to recover from Todd Steel. [Mr.] Chambers appealed
to the Superior Court.
On appeal, [Mr.] Chambers asserted that because [Mr.] Berger
had misled him and induced his reliance as to the ownership of
-7-
J-A05024-17
the property, “there was no necessity for the writing called for in
49 [P.S.] § 1303(d).” We agreed. In finding that Todd Steel
was estopped from seeking the protection of the Act, we were
ever mindful of a contractor’s duty to inquire into the nature of
the consent given by the actual owner of the property. We held,
however, that such duty cannot be imposed, “where the
president and sole stockholder of the corporate owner of the
property leads a contractor to believe that he is the actual
property owner.”[3]
Key Automotive Equipment Specialists, Inc., 636 A.2d at 1129 (citing
Chambers, 470 A.2d at 162-64) (internal citations omitted).
The Chambers Court recognized a prior holding of the Pennsylvania
Supreme Court, which stated that “while an owner may consent to his
tenant’s improvement of the property, without assuming any liability for the
work done, provided he acts in good faith throughout, he cannot escape
such liability if he knows of the tenant’s intention to make a contract ‘acting
as if he were the owner.’” Chambers, 470 A.2d at 163 (quoting Fluke, 128
A. at 664) (emphasis added).4
____________________________________________
3
This holding belies Owners’ assertion in the instant case that Appellant had
the duty to investigate into the ownership of the Property, regardless of
whether Mr. Saddler held himself out to be the owner of the Property. See
Appellees’ Brief at 8.
4
The Chambers Court explained:
In Fluke v. Lang, supra, the Court was interpreting Section 2 of
the Mechanics’ Lien Act of 1901, replaced by 49 P.S. § 1303(d),
in conjunction with Section 4 of the 1901 Act, which was omitted
from the Mechanics’ Lien Law of 1963. Section 4 of the
Mechanics’ Lien Act of 1901 provided:
Any owner, not being a committee, guardian or trustee, as
aforesaid, who shall knowingly suffer or permit any person,
(Footnote Continued Next Page)
-8-
J-A05024-17
This Court also finds persuasive the opinion in Kelly v. Hannan, 566
A.2d 310 (Pa. Super. 1989). As alleged in the present case, it was
established in Kelly that the contractor believed he was contracting with the
owners of the property and that the owners knew of the tenants’ intentions
to contract with the contractor as though they were the owners.
Accordingly, we held:
[T]he leasing agreement entered into in this case does not
engage the language of 49 P.S. § 1303(d) wherein the owner of
the estate in fee is protected from liability. We believe the
appellee failed to act with good faith throughout the transaction
and produced a lease at the time of the hearing in order to
_______________________
(Footnote Continued)
acting as if he were the owner, to make a contract for
which a claim could be filed, without objecting thereto at
the time, shall be treated as ratifying the act of such
person acting as if he were the owner, and the claim may
be filed against the real owner, with the same effect if he
himself had made the contract. Ratification shall also be
presumed, and like subjection to lien shall follow, if the
owner, not being a committee, guardian or trustee, as
aforesaid, subsequently learning of such contract or of
work being done upon his property, shall not, within ten
days thereafter, repudiate the same, either by notice to
the contractor and subcontractor or by posting such
repudiation on the most public part of the structure or
other improvement.
According to the explanatory comments of the Joint State
Government Commission, the above section does not appear in
the Mechanics’ Lien Law of 1963 because it was omitted as
unnecessary. Despite the fact that Section 4 of the Act of 1901
is not found in the present statute, we find the interpretation
given Section 2 of that Act persuasive in interpreting the nearly
identical language of 49 P.S. § 1303(d).
Id.
-9-
J-A05024-17
engage the language of § 1303(d)…. For the reasons stated
above we reverse the lower court’s order granting the appellees’
preliminary objections.
Id. at 318.5
Here, the trial court dismissed Appellant’s Amended Complaint with
prejudice, “finding that Section 1303(d) controls, and that [Mr.] Saddler, a
tenant, could not bind the owners when there was no written authorization
to do so.” TCO at 3. However, based on our foregoing analysis, it is clear
that Section 1303(d) of the Mechanics’ Lien Law does not act as an absolute
bar to a mechanics’ lien claim. In fact, if it is established that Owners had
knowledge that Mr. Saddler intended to enter into a contract with Appellant
while portraying himself as the owner of the Property, Appellant may have a
valid mechanics’ lien claim against Owners, because Owners would be
estopped from asserting protection from liability under section 1303(d). We
deem the trial court’s misapplication of the law to constitute reversible error.
____________________________________________
5
In reaching the decision in Kelly, this Court was guided by the following
principles:
The owner of leased property may be found liable for the
improvements a tenant has made if the owner has “not acted in
good faith throughout the transaction knowing that the tenant
intends to make a contract acting as if he were the owner.”
Chambers, … 470 A.2d at 161. Where facts are withheld and
any attempt is made to mislead the contractor and the owner
has promised to pay for the cost of the improvements, the
theory of estoppel will lie. Murray, … 167 A.2d at 256.
Id. at 316.
- 10 -
J-A05024-17
Additionally, Appellant avers that the trial court abused its discretion
and committed an error of law in sustaining Owners’ preliminary objections
in the nature of a demurrer and in dismissing its Amended Complaint with
prejudice, without considering as true all well-pleaded facts set forth therein.
Appellant’s Brief at 13. In order to properly review Owners’ demurrer, “the
trial court was required to determine whether the law precluded recovery
notwithstanding Appellant’s well-pleaded factual averments and all
reasonable inferences that could be drawn therefrom.” B.N. Excavating,
Inc. v. PBC Hollow-A, L.P., 71 A.3d 274, 278 (Pa. Super. 2013). The
record reflects that Appellant expressly averred the following, in relevant
part, in its Amended Complaint:
8. [Appellant] came to inspect the Property and[,] at that time[,]
Mr. Saddler provided [Appellant] with homeowner’s insurance
information through The Hartford Insurance Company[,] which
reflected that Mr. Saddler was the owner of the [P]roperty.
9. On or about February 19, 2014, [Appellant] and Mr. Saddler
entered into a contract (“Contract”) for [Appellant] to perform
renovation and restoration services at the Property for the total
amount of $15,722.63. A copy of the Contract is attached
hereto as Exhibit “2”.
10. Per Mr. Saddler’s representations to [Appellant,] the
Contract acknowledged that Mr. Saddler was the owner of the
Property.
11. Mr. Saddler signed the Contract acknowledging that he was
the owner of the Property.
12. At no time did Mr. Saddler ever advise [Appellant] that he
was a tenant, rather than the owner of the Property, or that he
was leasing the Property from another party.
…
- 11 -
J-A05024-17
14. At no time did Mr. Saddler ever provide [Appellant] … with a
copy of any lease with respect to his occupancy of the Property.
15. [Appellant] performed all of the work on the Property as
specified in the Contract.
16. [Appellant] completed its work on the Property on February
23, 2015.
17. During the entire time that [Appellant] was performing its
work on the Property, Mr. Saddler represented himself as the
owner of the Property.
18. The Hartford Insurance Company issued a check on Mr.
Saddler’s homeowner’s insurance, in the amount of $3,483.49 to
Mr. Saddler and [Appellant], which was signed by both parties
and paid to [Appellant] for its work.
…
21. To date, the amount of $12,239.14 still remains due [to
Appellant] for its work performed on the Property.
…
24. [Owners] were aware that Mr. Saddler was residing at the
Property.
25. [Owners] had knowledge of the damage to the Property and
the work being performed by [Appellant].
26. [Owners] had knowledge of the Contract.
27. [Owners] knew that Mr. Saddler was advising third parties
that he was the owner of the Property.
28. [Owners] gave their consent and authorization for Mr.
Saddler to advise third parties that he was the owner of the
Property.
29. [Owners] gave their consent and authorization for Mr.
Saddler to make improvements and repairs to the Property and
to contract with third parties to make improvements and repairs
to the Property.
30. [Owners] were aware that Mr. Saddler was maintaining the
homeowner’s insurance on the Property.
31. Subsequent to the work performed by [Appellant] on the
Property, [Owners] listed the Property for sale at a listing price
- 12 -
J-A05024-17
of approximately $75,000, more than double the Property’s
recently appraised value by Allegheny County for assessment
purposes.
Appellant’s Amended Complaint, 3/30/16, at 3-5 (emphasis added).
Mindful of our standard of review, and the trial court’s obligation to
view Appellant’s factual averments and reasonable inferences as true, we
cannot “state with certainty that upon the facts averred, the law will not
permit recovery.” Wendt & Sons, 858 A.2d at 632. As this case is not
clear and free from doubt, we discern that dismissal was not warranted.
See B.N. Excavating, Inc., 71 A.3d at 280 (concluding that dismissal was
not warranted where the Court could not find that a sufficient record existed
to sustain the appellees’ demurrer and to dismiss the appellant’s claim).
Moreover, considering our previous holdings in Chambers and Kelly,
Appellant’s evidence in this case may provide a sufficient basis to attach a
lien claim. Accordingly, an issue of fact exists which must be explored at an
evidentiary proceeding. See id.
In light of the foregoing case law interpreting the applicability of 49
P.S. § 1303(d) and the averments contained in Appellant’s Amended
Complaint, it does not appear with certainty that the law precludes
Appellant’s recovery. Accordingly, we reverse the June 15, 2016 order
sustaining Owners’ preliminary objections and dismissing Appellant’s
Amended Complaint with prejudice, and we remand for further proceedings
consistent with this memorandum.
- 13 -
J-A05024-17
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
- 14 -