Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott's Development Co.

DISSENTING OPINION BY

OLSON, J.:

The learned majority has concluded that the unions are “subcontractors” under the Mechanics’ Lien Law (“MLL”), as the unions “furnished labor” to the contractor under implied contracts. Based on this conclusion, the majority holds that the trustees of employee benefit funds (the “Trustees” or “Appellants”) have standing to assert mechanics’ lien claims — on behalf of the union members — for unpaid contributions to the funds. I must, respectfully, disagree with the majority’s analysis and conclusion in this case. Initially, on appeal, Appellants did not argue that the unions furnished labor under implied contracts. Rather, Appellants argue that the collective bargaining agreement (“CBA”)1 “is an express contract to provide ‘labor’ to [the contractor] on a ‘time and/or material’ basis.” Appellant’s Brief (687 WDA 2008) at 17; Appellants’ Brief (688 WDA 2008) at 17. Since we, as an appellate court, “may not act as counsel for [ ] appellants] and develop arguments on [their] behalf,” I believe the majority’s determination in this matter constitutes error. Rabatin v. Allied Glove Corp., 24 A.3d 388, 396 (Pa.Super.2011). Secondly, even if Appellants had properly raised the above argument, I disagree with the majority’s conclusion that the unions are *37“subcontractors” under the MLL as the unions did not “furnish” any labor in this case. Finally, the main issue on appeal is whether the Trustees can be considered subcontractors under the MLL — and, as the majority concludes, since the Trustees stand in the shoes of the union members, the Trustees fall within the statutory definition of “subcontractor.” Yet, the individual union members are not subcontractors under the MLL. Thus, while the Trustees might stand in the shoes of the union members, this fact does not grant the Trustees subcontractor status under the MLL. In short, I would affirm the trial court orders.

The MLL defines the term “subcontractor” as:

one who, by contract with the contractor, or pursuant to a contract with a subcontractor in direct privity of a contract with a contractor, express or implied, erects, constructs, alters or repairs an improvement or any part thereof; or furnishes labor, skill or superintendence thereto; or supplies or hauls materials, fixtures, machinery or equipment reasonably necessary for and actually used therein; or any or all of the foregoing, whether as superintendent, builder or materialman.

49 P.S. § 1201(5).

On appeal, Appellants argue that they fall within the statutory definition of “subcontractor” because the unions and the contractor entered into a written CBA; the CBA constitutes “an express contract to provide ‘labor’ to [the contractor] on a ‘time and/or material’ basis”; the union furnished labor under this express contract; and, since Appellants “stand in the shoes” of the union members for purposes of unpaid benefit contributions, Appellants must be viewed as having “furnished labor” to the contractor under an “express contract.” See Appellant’s Brief (687 WDA 2008) at 11-17; Appellants’ Brief (688 WDA 2008) at 11-17. While I believe there are a variety of problems with this theory, I agree with the majority’s rejection of Appellants’ argument that the CBA constitutes an “express contract” to furnish labor on an improvement. Majority Opinion, at 29. Instead, the CBA defines the pool of qualified employees that a contractor may potentially choose to employ on future, unknown projects — and the CBA then establishes the general terms and conditions of such potential employment. The CBA neither references nor contemplates any particular project or improvement and, thus, the CBA cannot be construed as an “express contract” to “erect[], construct ], alter[] or repair[] an improvement ... or furnish labor ... thereto.” 49 P.S. § 1201(5).

Since Appellants argue only that they entered into an “express contract to provide labor,” I believe that the rejection of said argument should have ended any further review. Instead, the majority chose to undertake its own, independent review of Appellants’ complaint and, after discerning the “natural and probable inference[s]” of the pleaded facts, the majority concluded that Appellants were subcontractors because unions furnished labor to the contractor under implied contracts. Majority Opinion, at 29-30. Respectfully, I believe that we must limit our review to the actual arguments Appellants raised on appeal. Thus, I would not consider the unargued issue of whether the unions furnished labor under implied contracts.

Moreover, even if the above issue had been raised, I disagree with the majority’s conclusion that the unions are subcontractors under the MLL. Specifically, I disagree that the unions “furnished” any labor as that term is used in section 1201(5) of the MLL.

*38In the case at bar, the majority liberally construes the MLL to hold that a union falls within the statutory definition of “subcontractor.” While I agree that — in accordance with 1 Pa.C.S.A. § 1928 — we must “liberally construe [the term subcontractor] to effect [the MLL’s statutory] objects and to promote justice,” a liberal construction still does not allow a union to be defined as a “subcontractor” under the MLL. This is because such a construction would not “effect the [MLL’s statutory] objects.” 1 Pa.C.S.A. § 1928.

Pennsylvania’s MLL is “intended to protect the prepayment labor and materials that a contractor [or subcontractor] invests in another’s property, by allowing the contractor [or subcontractor] to obtain a lien interest in the property involved.” Artsmith Development Group, Inc. v. Updegraff, 868 A.2d 495, 496 (Pa.Super.2005), appeal denied 586 Pa. 720, 890 A.2d 1055 (2005). The MLL is thus intended to protect the outlays that a contractor or a subcontractor actually contributes to a project — it protects against the risk of nonpayment for “work performed or materials provided in erecting or repairing a building.” Wyatt Inc. v. Citizens Bank, 976 A.2d 557, 570 (Pa.Super.2009).

In the case at bar, the unions risked nothing on the project. The unions did not pay or employ the workers — rather, the collective bargaining agreements specifically declared that the workers were employees of “the Company” (e.g. the contractor).2 Therefore, since the unions did not “invest” any labor in the project, it simply would not further the MLL’s statutory purpose to hold that the unions “furnished labor” in this case — the unions did not “furnish” any capital outlays that needed to be protected with a security interest in the property. Thus, as I do not believe the unions “furnished labor” in this case, I would hold that the unions do not fall under the MLL’s statutory definition of “subcontractor.”

Finally, according to the majority, the unions are subcontractors under the MLL and, since Appellants stand in the shoes of the union members, Appellants are also subcontractors under the MLL. The problem, however, is that the majority never explains how the union members — who are defined under the collective bargaining agreements as employees of the contractor — might qualify as subcontractors under the statute. Rather, the majority jumps over this hurdle by citing to foreign law and borrowing the final conclusion from those foreign cases: that — since a trustee of an employment benefit fund “stands in the shoes” of a union member for unpaid benefit contributions — the trustee has standing to assert a mechanics’ lien claim in Pennsylvania.

I believe that engrafting foreign law upon Pennsylvania’s MLL is not correct. Indeed, although the majority declares otherwise, it must be emphasized that Pennsylvania’s mechanics’ lien statute is relatively unique to our nation. While the vast majority of our sister states explicitly grant individual workers a mechanics’ lien upon the property, Pennsylvania limits the right to file a mechanics lien to “contractors” and “subcontractors.” 49 P.S. §§ 1301 and 13033; see also 49 P.S. *39§ 1201 cmt. 5 (“[p]rior decisional law that laborers are not subcontractors, even though employed by a contractor, remains unchanged”); Guthrie v. Horner, 12 Pa. 236 (Pa.1849) (“our mechanics’ lien law never did nor never could contemplate that every man who was hired by a contractor to work at a building had a right to file a lien for his wages”). Certainly, within each of the foreign cases cited by the majority, either the respective state statutes or interpretive case law explicitly allows individual workers to assert a mechanics’ lien claim for their individual work.4 Therefore — in those foreign cases — it was logical for the courts to con-elude that, since the individual workers could assert a mechanics’ lien claim, and since the trustee “stood in the shoes” of the individual workers, the trustees were allowed to assert a mechanics’ lien claim. The same holds true in U.S. for Benefit and on Behalf of Sherman v. Carter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (U.S. 1957)—a case upon which the majority heavily relies. In Carter, the United States Supreme Court was interpreting the federal Miller Act, which provides; “[ejvery person who has furnished labor or material in the prosecution of the work ... and who has not been paid in full therefor ... shall have the right to sue on *40such payment bond ... for the sum or sums justly due him.” Carter, 353 U.S. at 215, 77 S.Ct. 793 quoting 40 U.S.C. § 270a(a)(2) (now codified at 40 U.S.C. § 3133(b)(1)) (emphasis added). Thus, and similarly to the foreign state cases cited by the majority, the Carter Court was able to logically hold that, as an individual worker could assert a claim under the bond, a trustee “standing in the shoes” of the individual worker could also assert a claim under the bond. Carter, 353 U.S. at 220-221, 77 S.Ct. 793.

For good or ill, however, Pennsylvania’s MLL does not protect the labor of individual workers. Rather, by the plain terms of the statute, the MLL protects only the prepayment labor and materials that a contractor or subcontractor invests in another property. Further, even though a liberal interpretation of the term “subcontractor” might possibly include the employees of a contractor, the statutory comment declares: “[pjrior decisional law that laborers are not subcontractors, even though employed by a contractor, remains unchanged.” 49 P.S. § 1201 cmt. 5. Although this comment is not law, it “may be given weight in the construction of a statute.” Young v. Kaye, 443 Pa. 335, 279 A.2d 759, 765 n. 3 (1971). In the case at bar, the comment clarifies the language of the MLL and demonstrates the intent of our General Assembly. Specifically, the comment demonstrates that our MLL “never did nor never could contemplate that every man who was hired by a contractor to work at a building had a right to file a lien for his wages.” Guthrie, 12 Pa. at 236. Instead, as the explicit language of the MLL provides, our MLL was intended to limit standing to “contractors” and “subcontractors” and to no one else “even though such person furnishes labor to an improvement.” 49 P.S. § 1303(a).

In conclusion, even if Appellants “stood in the shoes” of the union members, such status would not provide Appellants with standing under Pennsylvania’s MLL. The individual union members are simply not “subcontractors” under the MLL — and only “contractors” and “subcontractors” have standing to file mechanics’ lien claims in Pennsylvania. I would affirm the orders of the learned trial judge.5,6

. In these consolidated appeals, two collective bargaining agreements are at issue. See CBA Between Erie Construction Council and International Union of Bricklayers & Allied Craft-workers, effective from 5/1/04 through 4/30/09, at Article 1; CBA Between Erie Construction Council and Laborers’ District council of Western Pennsylvania, AFL-CIO, effective from 2004 through 2009, at Article 1. Given the similarity between the two agreements, throughout this dissent I will, for the most part, refer to the agreements in the singular.

. See CBA Between Erie Construction Council and International Union of Bricklayers & Allied Craftworkers, effective from 5/1/04 through 4/30/09, at 1.06; CBA Between Erie Construction Council and Laborers' District council of Western Pennsylvania, AFL-CIO, effective from 2004 through 2009, at Article 1.

. Indeed, section 1303(a) of the MLL provides:

No [mechanics’] lien shall be allowed in favor of any person other than a contractor or subcontractor, as defined herein, even though such person furnishes labor or materials to an improvement.

*3949 P.S. § 1303(a) (emphasis added).

. See Forsberg v. Bovis Lend Lease, Inc., 184 P.3d 610, 613 (Utah App.2008) (Utah Code Ann. § 38-1-3 provides: "Contractors, subcontractors, and all other persons performing any services or furnishing or renting any materials or equipment used in the construction, alteration, or improvement of any building or structure or improvement to any premises in any manner ... shall have a lien upon the property”); Twin City Pipe Trades Serv. Ass’n v. Peak Mech., Inc., 689 N.W.2d 549, 551 (Minn.App.2004) (Minn.Stat. § 514.01 declares: "[w] hoe ver ... contributes to the improvement of real estate by performing labor, or furnishing skill ... shall have a lien upon the improvement, and upon the land”); Conn. Carpenters Benefit Funds v. Burkhard Hotel Partners II, LLC, 83 Conn.App. 352, 849 A.2d 922, 925-926 (2004) (Conn. Gen.Stat. § 49-33 states: "If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction ... of any building ... and the claim is by virtue of an agreement with ... some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands ... is subject to the payment of the claim"); Omaha Constr. Indus. Pension Plan v. Children’s Hosp., 11 Neb.App. 35, 642 N.W.2d 849 (2002) (holding that, under Neb.Rev.Stat. § 52-131(1), "an employee of a subcontractor may file a lien against the property owner”); Divane v. Smith, 332 Ill.App.3d 548, 266 Ill. Dec. 255, 774 N.E.2d 361, 368 (2002) (holding that, under 770 I.L.C.S. 60/1, "the electricians would be entitled to a lien against the owners for the fringe benefit contributions as a part of the amount due them for performance of their services ... [thus, the trustees] are entitled to enforce [the rights of the electricians]”); Performance Funding, L.L.C. v. Ariz. Pipe Trade Trust Funds, 203 Ariz. 21, 49 P.3d 293, 295 (App.2002) (A.R.S. § 33-981(A) provides: "[E]very person who labors or furnishes professional services, materials, machinery, fixtures or tools in the construction ... of any building, or other structure or improvement, shall have a lien on such building ... for the work or labor done or professional services, materials, machinery, fixtures or tools furnished”); Nat’l Elec. Indus. Fund v. Bethlehem Steel Corp., 296 Md. 541, 463 A.2d 858, 863-864 (1983) (holding: since the subcontractor had "individual contracts of hire with electrical workers[,] ... the electrical workers [were] ‘subcontractors’ under the [mechanics’ lien act]. Those mechanics' lien claims may be asserted ... by the [t]rusts on behalf of the electrical workers”); Haw. Carpenters’ Trust Funds v. Aloe Dev. Corp., 63 Haw. 566, 633 P.2d 1106, 1110 (1981) (H.R.S. § 507-42 provides: "[a]ny person or association or persons furnishing labor or material in the improvement of real property shall have a lien upon the improvement”); Dobbs v. Knudson, Inc., 292 N.W.2d 692, 694-695 (Iowa 1980) (explaining that individual employees have “the right to make [a lien] claim for labor furnished on the public improvement”).

. In the alternative, Appellants argue that section 1303(a) of the MLL is preempted by the federal Employee Retirement Income Security Act (ERISA). Section 1303(a) provides that “[n]o [mechanics’] lien shall be allowed in favor of any person other than a contractor or subcontractor, as defined herein, even though such person furnishes labor or materials to an improvement.” 49 P.S. § 1303(a). According to Appellants, section 1303(a) improperly targets collective bargaining agreements and "any ERISA multi-employer plan created by the CBA.” As Appellants claim, since the statute is an "obstacle[] to [Appellants’] recovery of unpaid [contributions,” the statute is preempted by ERISA. Appellants are incorrect. Indeed, section 1303(a) is superfluous: 49 P.S. § 1301 creates the statutory “right to lien” and expressly limits the right to file a mechanics' lien to contractors and subcontractors. 49 P.S. § 1301. Section 1303(a) simply restates — and therefore emphasizes — the discrete parties who are able to file a mechanics' lien in Pennsylvania. Thus, section 1303(a) does not constitute an improper ”obstacle[] to [Appellants’] recovery of unpaid [contributions” — it simply restates Pennsylvania’s generally applicable mechanics' lien law. Regardless, section 1301 limits the right to file a mechanics’ lien claim to "contractors" and "subcontractors” — and since Appellants' entire preemption claim is based upon section 1303(a) — Appellants’ claim necessarily fails.

. It is important to note that nothing in my dissent implies that Appellants are precluded from recovering the contributions that are due. Indeed, Appellants are free to pursue a civil action against the defaulting contractor and raise all appropriate claims. I simply believe that — -under the specific language contained in Pennsylvania’s MLL — Appellants do not have standing to file a mechanics’ lien *41claim for the unpaid employee benefit contributions.