49 p.s. § 1101, et seq. (2010)paconstructionlaw.com/wp-content/uploads/2014/09/pennsylvania... ·...

49 P.S. § 1101, et seq. (2010)

Table of Contents CHAPTER 6. MECHANICS' LIEN LAW OF 1963 .......................................................................... 2 ARTICLE I. SHORT TITLE .............................................................................................................. 2 § 1101. Short title ................................................................................................................................ 2 § 1201. Definitions .............................................................................................................................. 4 § 1301. Right to lien; amount ............................................................................................................ 11 § 1302. Presumption as to use of materials ....................................................................................... 14 § 1303. Lien not allowed in certain cases ......................................................................................... 14 § 1304. Excessive curtilage ............................................................................................................... 17 § 1305. Right to lien in case of noncompletion of work ................................................................... 18 § 1306. Consolidation or apportionment of claims ........................................................................... 19 § 1307. Removal or detachment of improvement subject to claim ................................................... 20 § 1401. Waiver of lien by claimant ................................................................................................... 21 § 1402. Waiver by contractor; effect on subcontractor ..................................................................... 24 § 1403. Release as waiver ................................................................................................................. 27 § 1404. Effect of credit or collateral ................................................................................................. 27 § 1405. Right of owner to limit claims to unpaid balance of contract price ..................................... 28 § 1406. Right of subcontractor to rescind after notice of contract provisions .................................. 28 § 1407. Contracts not made in good faith; effect .............................................................................. 29 § 1501. Formal notice by subcontractor as condition precedent ....................................................... 29 § 1502. Filing and notice of filing of claim ....................................................................................... 32 § 1503. Contents of claim ................................................................................................................. 37 § 1504. Amendment of claim ............................................................................................................ 40 § 1505. Procedure for contesting claim; preliminary objections ...................................................... 41 § 1506. Rule to file claim .................................................................................................................. 42 § 1507. Indexing claims, et cetera ..................................................................................................... 43 § 1508. Priority of lien ...................................................................................................................... 44 § 1509. Effect of forfeiture of leasehold ........................................................................................... 46 § 1510. Discharge of lien on payment into court or entry of security ............................................... 46 § 1601. Owner's right to retain funds of contractor ........................................................................... 47 § 1602. Notice to contractor of claim ................................................................................................ 48 § 1603. Contractor's duties on receipt of notice ................................................................................ 49 § 1604. Additional remedies of owner .............................................................................................. 49 § 1701. Procedure to obtain judgment .............................................................................................. 50 § 1702. Effect of judgment on right to personal action ..................................................................... 53 § 1703. Appeal from judgment ......................................................................................................... 53 § 1704. Satisfaction of claims; penalty for failure to satisfy ............................................................. 54 § 1705. Revival of judgment ............................................................................................................. 54 § 1706. Execution upon judgment ..................................................................................................... 54 § 1801. Severability ........................................................................................................................... 55 § 1802. Effective date ........................................................................................................................ 55 § 1901. Specific repeal ...................................................................................................................... 55 § 1902. General repeal ...................................................................................................................... 56

49 P.S. § 1101

CHAPTER6.MECHANICS'LIENLAWOF1963

ARTICLEI.SHORTTITLE

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49 P.S. § 1101 (2010)

§1101.Shorttitle This act shall be known and may be cited as the "Mechanics' Lien Law of 1963". LexisNexis (R) Notes: CASE NOTES 1. In a subcontractor's appeal of a trial court decision that sustained the preliminary objections filed by the homeowners and struck the mechanics' lien claim filed by the subcontractor, an appellate court determined that the trial court proper-ly sustained the preliminary objections and struck the lien claim because a stipulation of waiver of liens had been filed with the prothonotary before the subcontractor began work on the homeowners' residence, thus, the subcontractor was on constructive notice of the waiver before it began work on the home. The trial court was found to have prudently sought to review the original stipulation of waiver of liens and properly took judicial notice of it prior to sustaining the homeowners' preliminary objections. Floors, Inc. v. Altig, 2009 PA Super 2, 963 A.2d 912, 2009 Pa. Super. LEXIS 3 (Pa. Super. Ct. 2009), appeal denied by 602 Pa. 667, 980 A.2d 608, 2009 Pa. LEXIS 2089 (2009). 2. In a mechanics lien action against the property owner, who lived out of state, the trial court recommended affirming its order denying the property owner's petition to open the default judgment entered against him because he failed to comply with Pa.R.C.P. No. 237.3 when he filed preliminary objections to the complaint but did not file a brief, and also failed to comply with the case law standards as to excusing the delay in responding to the complaint. The court further upheld the service made upon the property owner by mail as a sufficient time had passed when the contractor filed the 10-day notice of intent to file a default judgment after the complaint on the mechanics lien had been filed. Frangos v. Hersh, 2010 Pa. Dist. & Cnty. Dec. LEXIS 146 (Mar. 11, 2010). 3. Subcontractors could not recover interest pursuant to the Pennsylvania's Contractors and Subcontractors Payment Act, 73 P.S. § 501 et seq. (CSPA), in their mechanics' lien action against the lessee for the subcontractors' work per-formed in renovating the leasehold of the lessee in a high-rise building. Though the lessee was an owner under 73 P.S. § 502, and was entitled to be paid in accordance with the subcontract according to 73 P.S. § 505(a) and 73 P.S. § 507(a), the subcontractors had not filed the required breach of contract action to recover under the CSPA and a mechanics' lien proceeding itself as recognized by 49 P.S. § 1101 et seq. was not meant to settle the contractual obligations of the par-ties. Wyatt Inc. v. Citizens Bank of Pa., 2009 PA Super 107, 976 A.2d 557, 2009 Pa. Super. LEXIS 1008 (Pa. Super. Ct. 2009). 4. In a mechanics lien action against the property owner, who lived out of state, the trial court recommended affirming its order denying the property owner's petition to open the default judgment entered against him because he failed to comply with Pa.R.C.P. No. 237.3 when he filed preliminary objections to the complaint but did not file a brief, and also

49 P.S. § 1101

failed to comply with the case law standards as to excusing the delay in responding to the complaint. The court further upheld the service made upon the property owner by mail as a sufficient time had passed when the contractor filed the 10-day notice of intent to file a default judgment after the complaint on the mechanics lien had been filed. Frangos v. Hersh, 2010 Pa. Dist. & Cnty. Dec. LEXIS 146 (Mar. 11, 2010). 5. Subcontractors could not recover interest pursuant to the Pennsylvania's Contractors and Subcontractors Payment Act, 73 P.S. § 501 et seq. (CSPA), in their mechanics' lien action against the lessee for the subcontractors' work per-formed in renovating the leasehold of the lessee in a high-rise building. Though the lessee was an owner under 73 P.S. § 502, and was entitled to be paid in accordance with the subcontract according to 73 P.S. § 505(a) and 73 P.S. § 507(a), the subcontractors had not filed the required breach of contract action to recover under the CSPA and a mechanics' lien proceeding itself as recognized by 49 P.S. § 1101 et seq. was not meant to settle the contractual obligations of the par-ties. Wyatt Inc. v. Citizens Bank of Pa., 2009 PA Super 107, 976 A.2d 557, 2009 Pa. Super. LEXIS 1008 (Pa. Super. Ct. 2009). 6. In a subcontractor's appeal of a trial court decision that sustained the preliminary objections filed by the homeowners and struck the mechanics' lien claim filed by the subcontractor, an appellate court determined that the trial court proper-ly sustained the preliminary objections and struck the lien claim because a stipulation of waiver of liens had been filed with the prothonotary before the subcontractor began work on the homeowners' residence, thus, the subcontractor was on constructive notice of the waiver before it began work on the home. The trial court was found to have prudently sought to review the original stipulation of waiver of liens and properly took judicial notice of it prior to sustaining the homeowners' preliminary objections. Floors, Inc. v. Altig, 2009 PA Super 2, 963 A.2d 912, 2009 Pa. Super. LEXIS 3 (Pa. Super. Ct. 2009), appeal denied by 602 Pa. 667, 980 A.2d 608, 2009 Pa. LEXIS 2089 (2009). 7. Homeowners' complaint against a sub-contractor who had, prior to accepting employment to construct the home, waived his rights under the Mechanics' Lien Law of 1963, 49 P.S. § 1101 et seq., was improperly dismissed because the claim was completely independent of the transaction or occurrence referred to in the statute, and there was a cause of action in assumpsit for breach of the agreement; 49 P.S. § 1403 was not construed as bestowing upon appellee the right to file a lien claim in spite of its futility. Malin v. Nuss, 234 Pa. Super. 259, 338 A.2d 676, 1975 Pa. Super. LEXIS 1524 (1975). TREATISES AND ANALYTICAL MATERIALS 1. 28 P.L.E., JUDICIAL SALES § 26, Pennsylvania Law Encyclopedia, JUDICIAL SALES, § 26. Proceeds, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 1, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 1. In General, Copy-right 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 3. 32 P.L.E., MECHANICS' LIENS § 5, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 5. Nature of Im-provement, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 4. 45 P.L.E., STATUTES § 88, Pennsylvania Law Encyclopedia, STATUTES, § 88. -- Reenactments and Consolida-tions, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. LexisNexis 50 State Surveys, Legislation & Regulations

Mechanic & Contractor Liens

49 P.S. § 1201

§1201.Definitions The following words, terms and phrases when used in this act shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning: (1) "IMPROVEMENT" includes any building, structure or other improvement of whatsoever kind or character erected or constructed on land, together with the fixtures and other personal property used in fitting up and equipping the same for the purpose for which it is intended. (2) "PROPERTY" means the improvement, the land covered thereby and the lot or curtilage appurtenant thereto be-longing to the same legal or equitable owner reasonably needed for the general purposes thereof and forming a part of a single business or residential plant. (3) "OWNER" means an owner in fee, a tenant for life or years or one having any other estate in or title to property. (4) "CONTRACTOR" means one who, by contract with the owner, 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 ma-terials, fixtures, machinery or equipment reasonably necessary for and actually used therein; or any or all of the forego-ing, whether as superintendent, builder or materialman. The term also includes an architect or engineer who, by contract with the owner, express or implied, in addition to the preparation of drawings, specifications and contract documents also superintends or supervises any such erection, construction, alteration or repair. (5) "SUBCONTRACTOR" means one who, by contract with the contractor, or pursuant to a contract with a subcon-tractor in direct privity of a contract with a contractor, express or implied, erects, constructs, alters or repairs an im-provement or any part thereof; or furnishes labor, skill or superintendence thereto; or supplies or hauls materials, fix-tures, machinery or equipment reasonably necessary for and actually used therein; or any or all of the foregoing, wheth-er as superintendent, builder or materialman. The term does not include an architect or engineer who contracts with a contractor or subcontractor, or a person who contracts with a materialman or a person who contracts with a subcontrac-tor not in direct privity of a contract with a contractor. (6) "CLAIMANT" means a contractor or subcontractor who has filed or may file a claim under this act for a lien against property. (7) "MATERIALS" means building materials and supplies of all kinds, and also includes fixtures, machinery and equipment reasonably necessary to and incorporated into the improvement. (8) "COMPLETION OF THE WORK" means performance of the last of the labor or delivery of the last of the materi-als required by the terms of the claimant's contract or agreement, whichever last occurs. (9) "LABOR" includes the furnishing of skill or superintendence. (10) "ERECTION AND CONSTRUCTION" means the erection and construction of a new improvement or of a sub-stantial addition to an existing improvement or any adaptation of an existing improvement rendering the same fit for a new or distinct use and effecting a material change in the interior or exterior thereof. (11) "ALTERATION AND REPAIR" means any alteration or repair of an existing improvement which does not con-stitute erection or construction as defined herein. (12) "ERECTION, CONSTRUCTION, ALTERATION OR REPAIR" includes: (a) Demolition, removal of improvements, excavation, grading, filling, paving and landscaping, when such work is incidental to the erection, construction, alteration or repair;

49 P.S. § 1201

(b) Initial fitting up and equipping of the improvement with fixtures, machinery and equipment suitable to the purpos-es for which the erection, construction, alteration or repair was intended; and (c) Furnishing, excavating for, laying, relaying, stringing and restringing rails, ties, pipes, poles and wires, whether on the property improved or upon other property, in order to supply services to the improvement. (13) "PROTHONOTARY" means the prothonotary of the court or courts of common pleas of the county or counties in which the improvement is situate. (14) "RESIDENTIAL PROPERTY" means property on which there is or will be constructed a residential building not more than three stories in height, not including any basement level, regardless of whether any portion of that basement is at grade level, or which is zoned or otherwise approved for residential development on which there is or will be con-structed a residential building not more than three stories in height, not including any basement level, regardless of whether any portion of that basement is at grade level, planned residential development or agricultural use, or for which a residential subdivision or land development plan or planned residential development plan has received preliminary, tentative or final approval on which there is or will be constructed a residential building not more than three stories in height, not including any basement level, regardless of whether any portion of that basement is at grade level, pursuant to the act of July 31, 1968 (P.L. 805, No. 247), known as the "Pennsylvania Municipalities Planning Code." NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Subdivision (1).. Adapted from Section 1, Act of 1901, June 4, P.L. 431, as amended (hereafter referred to as "Act of 1901") 49 P.S. 1. The detailed enumeration of the types of structure or improvements such as wharves, docks, bulk-heads, conduits, coalbreakers, etc., contained in the Act of 1901 is omitted and the phrase "structure or improvement of whatsoever kind and character" which is taken verbatim from Section 1 of the Act of 1901 is adopted as a generic defi-nition. This is not intended to abridge or to enlarge the right to lien. Similarly, the detailed enumeration of the types of structure and improvements such as sidewalks, yards, fences, walls and other types of fixtures enumerated in Section 2 of the Act of 1901, 49 P.S. 21 is omitted and is deemed included in the generic definition of "fixtures and other personal property used in fitting up and equipping the same for the purpose for which it is intended." Subdivision (2).. Adapted from Section 1, Act of 1901, as amended 1929, May 2, P.L.1255, 49 P.S. 6, which defined property and Section 3, Act of 1901, 49 P.S. 25, which defined curtilage. No attempt is made to define what constitutes a single business or residential plant. This remains a question of fact and previous decisional law will control. Subdivision (3).. Adapted from Section 1, Act of 1901, as amended 1929, May 2, P.L. 1255, 49 P.S. 2. The remainder of the section is reincorporated in other sections of this act and its omission here is not intended to change prior law. Subdivision (4).. Adapted from Section 1, Act of 1901, as amended 1929, May 2, P.L. 1255, 49 P.S. 3. The last sen-tence is intended to declare and clarify existing decisional law. See Alan Porter Lee, Inc. v. Du-Rite Products Co., Inc., 366 Pa. 548 (1951), 79 A.2d 218. Subdivision (5).. Adapted from Section 1, Act of 1901, as amended 1929, May 2, P.L. 1255, 49 P.S. 4. The last sen-tence declares and clarifies existing law that a subcontractor of a sub-subcontractor has no right to lien. Hamilton v. Means, 155 Pa.Superior Ct. 245, 247 (1944), 38 A.2d 528. An architect or engineer must contract with the owner under Subsection (4) in order to obtain a lien. He cannot obtain a lien as a subcontractor of a contractor or other subcontractor. Prior decisional law that laborers are not subcontractors, even though employed by a contractor, remains unchanged. Subdivision (6).. Taken from Section 1, Act of 1901, 49 P.S. 5. Subdivision (7).. The Act of 1901 contained no express definition of materials. This definition follows existing law. See Section 1, Act of 1901, as amended 1929, May 2, P.L. 1255, 49 P.S. 4, which used the phrase "reasonably necessary for

49 P.S. § 1201

and actually used therein." The enumeration of the types of fixtures subject to lien contained in Section 2, Act of 1901, 49 P.S. 21, is omitted as unnecessary. Subdivision (8).. The Act of 1901 contained no express definition of completion of the work. This definition is adapted from Section 2, Act of 1901, 49 P.S. 23, which used the phrase "completed his work and furnished the last of his mate-rials," and Section 8, Act of 1901, as amended 1909, March 24, P.L. 65, 49 P.S. 101, which used the phrase "when the last work was done or last materials furnished." Subdivision (9).. The Act of 1901 contained no express definition of labor. Section 1, Act of 1901, supra, expressly in-cluded as a subcontractor one who furnished "labor, skill or superintends." Subdivision (10).. The Act of 1901 contained no express definition of erection and construction. This definition is adapted in part from Section 3, Act of 1901, 49 P.S. 26, dealing with substantial additions to and adaptation of old struc-tures. No change in the law is intended. Subdivision (11).. The Act of 1901 contained no express definition of alteration and repair. This section is adapted from Sections 2 and 3, Act of 1901, 49 P.S. 21, 26. No change in the law is intended. Subdivision (12).. Adapted from Section 2, Act of 1901, 49 P.S. 21. In view of the preceding definitions, the detailed enumeration of the types of buildings, fixtures, and equipment contained in that clause is omitted as unnecessary; this is not intended to abridge or to enlarge the right to lien. Subsections (a) and (b) are included as a matter of caution, and Subsection (c), taken from the first sentence of Section 2, Act of 1901, is included because it is not specifically covered by preceding definitions or by any other section of the act. Subsection (a) declares existing decisional law with respect to such work upon the ground as demolition, grading, land-scaping which is incidental to the erection, construction, alteration or repair of an improvement, as compared to such work when it is performed independently of any erection, construction, alteration or repair of an improvement, in which latter case no lien is allowed. Subdivision (13).. Taken from Section 11, Act of 1901, as amended 1905, April 17, P.L. 172, 49 P.S. 53, except that the word "improvement" is substituted for the word "building." No change in the law is intended. Where only the curtilage as distinguished from the building itself extends into another county, Section 502 (b) of this act authorizes filing in both counties. HISTORY: Act 2006-52 (H.B. 1637), P.L. 210, § 1, approved June 29, 2006, eff. Jan. 1, 2007.; Act 2009-34 (S.B. 563), P.L. 298, § 1, approved Aug. 11, 2009, eff. in 60 days. NOTES: LexisNexis (R) Notes: Amendment Notes.--The 2009 amendment rewrote (14). The 2006 amendment, in (5), added "or pursuant to a contract with a subcontractor in direct privity of a contract with a contractor" in the first sentence and substituted "materialman or a person who contracts with a subcontractor not in direct privity of a contract with a contractor" for "subcontractor or with a materialman" in the second sentence; and add-ed (14). CASE NOTES

49 P.S. § 1201

1. In a subcontractor's appeal of a trial court decision that sustained the preliminary objections filed by the homeowners and struck the mechanics' lien claim filed by the subcontractor, an appellate court determined that the trial court proper-ly sustained the preliminary objections and struck the lien claim because a stipulation of waiver of liens had been filed with the prothonotary before the subcontractor began work on the homeowners' residence, thus, the subcontractor was on constructive notice of the waiver before it began work on the home. The trial court was found to have prudently sought to review the original stipulation of waiver of liens and properly took judicial notice of it prior to sustaining the homeowners' preliminary objections. Floors, Inc. v. Altig, 2009 PA Super 2, 963 A.2d 912, 2009 Pa. Super. LEXIS 3 (Pa. Super. Ct. 2009), appeal denied by 602 Pa. 667, 980 A.2d 608, 2009 Pa. LEXIS 2089 (2009). 2. Pennsylvania Mechanics Lien Law, Language of 49 P.S. § 1101 et seq., is not unconstitutional for failure to provide a notice and opportunity to be heard because a mechanic's lien does not amount to a taking of a significant property inter-est. It is merely an encumbrance of property. B & P Development v. Walker, 420 F. Supp. 704, 1976 U.S. Dist. LEXIS 13393 (W.D. Pa. 1976). 3. Although the trial court erred as a matter of law in refusing to accept the subcontractor's averment that it had com-pleted the work, the error was harmless in light of the appellate court's finding that the subcontractor failed to properly perfect its lien; the subcontractor could not assert that it had filed a mechanics' lien within four months of the comple-tion of the work when it had already averred that it had walked off of the job without completing it because it believed that the general contractor was in breach of their subcontract agreement. Phila. Constr. Servs., LLC v. Domb, LLC, 2006 PA Super 184, 903 A.2d 1262, 2006 Pa. Super. LEXIS 1640 (Pa. Super. Ct. 2006). 4. Subcontractor's motion for summary judgment was granted in its action upon a mechanic's lien claim against a bank because the bank's stipulation against liens was void, unlawful, and against public policy as to the subcontractor's claim as a sub-subcontractor who entered into its contract with a construction company after the effective date of the amend-ments to the Mechanics' Lien Law, 49 P.S. §§ 1101-1902; the subcontractor had every right to expect that the amend-ments applied to its contract and that there would be no ability by the bank to avoid a lien if the company fail to pay it because the subcontractor executed a contract with a subcontractor in direct privity of a contract with a contractor since the company had contracted directly with the contractor, and pursuant to the definition of "subcontractor" in the Law, 49 P.S. § 1201(5), the subcontractor had the right to file a lien against the bank's property rights. Brubacher Excavating, Inc. v. Commerce Bank/harrisburg, N.A., 2008 Pa. Dist. & Cnty. Dec. LEXIS 166 (Dec. 22, 2008). 5. As the extensive demolition and construction work performed by subcontractors was an adaptation of an existing building which rendered it fit for a new use and effected a material change in its interior, the project was "erection and construction" under 49 P.S. Ann. § 1201(10), not "alterations and repairs" under § 1201(11). Accordingly, the subcon-tractors were not required to provide preliminary notice of their liens under 49 P.S. § 1501(a) and could recover the full amount of their claims. Wyatt Inc. v. Citizens Bank of Pa., 2006 Pa. Dist. & Cnty. Dec. LEXIS 386 (Oct. 4, 2006). 6. Court read the Mechanics' Lien Law to allow a construction of the company's work of dismantling, transporting, and "erecting" a 325,000 pound hydraulic plastics injection machine in the owner's plant, the foundation for which had to be "reinforced" to accommodate the weight of the equipment, to be equated with the erection and construction of a sub-stantial addition to an existing improvement or any adaptation of an existing improvement rendering the same fit for a new or distinct use and effecting a material change in the interior or exterior thereof. Wendt & Sons v. New Hedstrom Corp., 2004 PA Super 355, 858 A.2d 631, 2004 Pa. Super. LEXIS 2889 (Pa. Super. Ct. 2004).

49 P.S. § 1201

7. Subcontractors who performed work for the lessee as its leasehold in a high-rise office building did not have to serve preliminary notice of their intent to seek mechanics' lien claims before completing their work at the premises. The sub-contractors were engaged in 49 P.S. § 1201(10) erection and construction work, and, thus, the requirement of sending preliminary notice under 49 P.S. § 1501 did not apply, which meant the subcontractors had valid lien claims to pursue payment of 49 P.S. § 1301 unpaid invoice amounts. Wyatt Inc. v. Citizens Bank of Pa., 2009 PA Super 107, 976 A.2d 557, 2009 Pa. Super. LEXIS 1008 (Pa. Super. Ct. 2009). 8. Subcontractors who performed work for the lessee as its leasehold in a high-rise office building did not have to serve preliminary notice of their intent to seek mechanics' lien claims before completing their work at the premises. The sub-contractors were engaged in 49 P.S. § 1201(10) erection and construction work, and, thus, the requirement of sending preliminary notice under 49 P.S. § 1501 did not apply, which meant the subcontractors had valid lien claims to pursue payment of 49 P.S. § 1301 unpaid invoice amounts. Wyatt Inc. v. Citizens Bank of Pa., 2009 PA Super 107, 976 A.2d 557, 2009 Pa. Super. LEXIS 1008 (Pa. Super. Ct. 2009). 9. In a subcontractor's appeal of a trial court decision that sustained the preliminary objections filed by the homeowners and struck the mechanics' lien claim filed by the subcontractor, an appellate court determined that the trial court proper-ly sustained the preliminary objections and struck the lien claim because a stipulation of waiver of liens had been filed with the prothonotary before the subcontractor began work on the homeowners' residence, thus, the subcontractor was on constructive notice of the waiver before it began work on the home. The trial court was found to have prudently sought to review the original stipulation of waiver of liens and properly took judicial notice of it prior to sustaining the homeowners' preliminary objections. Floors, Inc. v. Altig, 2009 PA Super 2, 963 A.2d 912, 2009 Pa. Super. LEXIS 3 (Pa. Super. Ct. 2009), appeal denied by 602 Pa. 667, 980 A.2d 608, 2009 Pa. LEXIS 2089 (2009). 10. Subcontractor's motion for summary judgment was granted in its action upon a mechanic's lien claim against a bank because the bank's stipulation against liens was void, unlawful, and against public policy as to the subcontractor's claim as a sub-subcontractor who entered into its contract with a construction company after the effective date of the amend-ments to the Mechanics' Lien Law, 49 P.S. §§ 1101-1902; the subcontractor had every right to expect that the amend-ments applied to its contract and that there would be no ability by the bank to avoid a lien if the company fail to pay it because the subcontractor executed a contract with a subcontractor in direct privity of a contract with a contractor since the company had contracted directly with the contractor, and pursuant to the definition of "subcontractor" in the Law, 49 P.S. § 1201(5), the subcontractor had the right to file a lien against the bank's property rights. Brubacher Excavating, Inc. v. Commerce Bank/harrisburg, N.A., 2008 Pa. Dist. & Cnty. Dec. LEXIS 166 (Dec. 22, 2008). 11. Although the trial court erred as a matter of law in refusing to accept the subcontractor's averment that it had com-pleted the work, the error was harmless in light of the appellate court's finding that the subcontractor failed to properly perfect its lien; the subcontractor could not assert that it had filed a mechanics' lien within four months of the comple-tion of the work when it had already averred that it had walked off of the job without completing it because it believed that the general contractor was in breach of their subcontract agreement. Phila. Constr. Servs., LLC v. Domb, LLC, 2006 PA Super 184, 903 A.2d 1262, 2006 Pa. Super. LEXIS 1640 (Pa. Super. Ct. 2006). 12. Trial court properly dismissed a subcontractor's action seeking to foreclose a mechanic's lien, because the work per-formed by the subcontractor was alteration and repair work as defined by 49 P.S. § 1201(11), and the subcontractor failed to provided the notice to the owners required by 49 P.S. § 1501. Wentzel-Applewood Joint Venture v. 801 Mkt. St. Assocs., LP, 2005 PA Super 239, 878 A.2d 889, 2005 Pa. Super. LEXIS 1573 (Pa. Super. Ct. 2005), appeal denied by 587 Pa. 707, 897 A.2d 1184, 2006 Pa. LEXIS 441 (2006). 13. Builder was not entitled to interest and attorneys' fees in the mechanics' lien pursuant to 49 P.S. § 1301, as interest and attorneys' fees did not constitute labor or materials as defined in 49 P.S. § 1201(7), (9). Artsmith Dev. Group, Inc. v. Updegraff, 2005 PA Super 11, 868 A.2d 495, 2005 Pa. Super. LEXIS 9 (Pa. Super. Ct. 2005), appeal denied by 586 Pa. 720, 890 A.2d 1055, 2005 Pa. LEXIS 2833 (2005).

49 P.S. § 1201

14. Court read the Mechanics' Lien Law to allow a construction of the company's work of dismantling, transporting, and "erecting" a 325,000 pound hydraulic plastics injection machine in the owner's plant, the foundation for which had to be "reinforced" to accommodate the weight of the equipment, to be equated with the erection and construction of a sub-stantial addition to an existing improvement or any adaptation of an existing improvement rendering the same fit for a new or distinct use and effecting a material change in the interior or exterior thereof. Wendt & Sons v. New Hedstrom Corp., 2004 PA Super 355, 858 A.2d 631, 2004 Pa. Super. LEXIS 2889 (Pa. Super. Ct. 2004). 15. Mechanics' Lien Law defined an improvement as any structure of whatsoever kind or character erected or construct-ed on land, and that is exactly what the construction company created when it "erected" a 325,000 pound hydraulic plas-tics injection machine in the owner's plant. Wendt & Sons v. New Hedstrom Corp., 2004 PA Super 355, 858 A.2d 631, 2004 Pa. Super. LEXIS 2889 (Pa. Super. Ct. 2004). 16. Although the unit installed by the construction company was not a "new improvement," in the sense that it was pris-tine and unused prior to being "erected" in the owner's plant, it was certainly a substantial addition to an existing im-provement, i. e., the original building in which the unit was ultimately housed, rendering the original building fit for a new or distinct use and affecting a material change in the interior within the meaning of the Mechanic's Lien Law. Wendt & Sons v. New Hedstrom Corp., 2004 PA Super 355, 858 A.2d 631, 2004 Pa. Super. LEXIS 2889 (Pa. Super. Ct. 2004). 17. Construction company's work in dismantling, reassembling, and erected a hydraulic plastics injection machine did come within the perimeters of the Pennsylvania Mechanics' Lien Law despite the presence of third parties performing on-site work to receive the equipment and facilitate its operation. The construction company's erection of the machinery was the final piece of the puzzle, concomitant with the incidental improvements necessary to allow for the unit to oper-ate, which created a distinct use for the plant and effected a material change in the interior thereof to qualify the con-struction company's labor as protected under the Law. Wendt & Sons v. New Hedstrom Corp., 2004 PA Super 355, 858 A.2d 631, 2004 Pa. Super. LEXIS 2889 (Pa. Super. Ct. 2004). 18. Where a mechanics' lien was being asserted based on an alteration or repair of an existing improvement, the me-chanics' lien claimant needed to notify the owner of its intent to pursue the mechanics' lien claim before completion of the work since an addition of a sign to an existing building was an alteration, and notice of the intent to enforce a me-chanics' lien was required before the completion of the work, and the trial court's dismissal of a subcontractor's mechan-ics' lien claim was affirmed where the subcontractor failed to provide timely notice to the property owner. City Lighting Prods. Co. v. Carnegie Inst., 2003 PA Super 45, 816 A.2d 1196, 2003 Pa. Super. LEXIS 120 (Pa. Super. Ct. 2003). 19. Subcontractor's claim for a mechanics' lien against a property owner was struck because the subcontractor failed to comply with the notice requirements of the Mechanics' Lien Law, 49 P.S. §§ 1501, § 1201(1), (10), and (11), in that the subcontractor placed a sign on the roof of the property owner's building, the sign was not the construction or erection of an improvement, the placement was the alteration or repair of an existing improvements, and the subcontractor was re-quired to inform the owner of the subcontractor's intent to pursue a lien before the completion of the project. City Light-ing Prods. Co. v. Carnegie Inst., 2003 PA Super 45, 816 A.2d 1196, 2003 Pa. Super. LEXIS 120 (Pa. Super. Ct. 2003). 20. Work performed by a developer to install infrastructure for subdivision was not an erection or construction of im-provement within the meaning of the Mechanics' Lien Law, 49 Pa. Stat. § 1508(a), because it was not performed as part of a continuous scheme to construct a home; because improvement meant building a permanent structure, pursuant to 49 Pa. Stat. § 1201(1), installing sewer lines and ensuring stability of the soil could not be classified as a building or a permanent structure. Dollar Bank, FSB v. EM2 Dev. Corp., 716 A.2d 671, 1998 Pa. Super. LEXIS 1929 (Pa. Super. Ct. 1998), appeal denied by 558 Pa. 619, 737 A.2d 742, 1999 Pa. LEXIS 303 (1999). 21. Owner's subsidiary was a contractor under 49 Pa. Stat. § 1201(4) of the Pennsylvania Mechanic's Lien Law and the contract between the two entities was valid; the owner and subsidiary had the same officers and directors, the subsidiary was created to facilitate a renovation project, and a lender insisted on having a company affiliated with the owner act as contractor. B&B Builders v. TCR Byberry Creek Ltd. Partnership, 27 Phila. 556, 1994 Phila. Cty. Rptr. LEXIS 52 (Pa. C.P., Orphans' Ct. Div. 1994), affirmed without opinion by 442 Pa. Super. 638, 659 A.2d 1, 1995 Pa. Super. LEXIS 247 (1995).

49 P.S. § 1201

22. Pursuant to 49 P.S. §§ 1201(4) and (5), a supplier could not acquire a mechanic's lien on a project for which it pro-vided labor and materials, where the supplier was not a contractor or a subcontractor. B&B Builders v. TCR Byberry Creek Ltd. Partnership, 27 Phila. 556, 1994 Phila. Cty. Rptr. LEXIS 52 (Pa. C.P., Orphans' Ct. Div. 1994), affirmed without opinion by 442 Pa. Super. 638, 659 A.2d 1, 1995 Pa. Super. LEXIS 247 (1995). 23. Contractor was entitled to amounts orally agreed to with a homeowner which totalled more than the amount stated in the contractor's mechanic's lien because under 49 P.S. §§ 1201, 1301 & 1503 of the mechanic's lien law, where the homeowner had paid partial amounts in excess of the lien amount by agreement of the parties, the lien for the balance of the services provided by the contractor may be collected: the purpose of the mechanic's lien law is to provide security for the performance of a contractor's services. Nowicki Constr. Co. v. Panar Corp., N.V., 342 Pa. Super. 8, 492 A.2d 36, 1985 Pa. Super. LEXIS 7253 (1985). 24. Under 49 P.S. § 1201(4), where no contract, express or implied, existed, the only relief properly available to the plaintiff was an action in quantum meruit. Phillipsburg Constr. Co. v. Phillipsburg U.A.W. Hous. Co., 254 Pa. Super. 1, 385 A.2d 494, 1978 Pa. Super. LEXIS 2604 (1978). 25. Pennsylvania Mechanics Lien Law, Language of 49 P.S. § 1101 et seq., is not unconstitutional for failure to provide a notice and opportunity to be heard because a mechanic's lien does not amount to a taking of a significant property in-terest. It is merely an encumbrance of property. B & P Development v. Walker, 420 F. Supp. 704, 1976 U.S. Dist. LEXIS 13393 (W.D. Pa. 1976). 26. Mechanics' Lien Law of 1963, 49 P.S. § 1101 et seq., provided protection for those who did preliminary work simi-lar to that performed by appellant, but only if the work was connected to the erection, construction, alteration or repair of a permanent building or structure as defined in 49 P.S. § 1201. Sampson-Miller Associated Cos. v. Landmark Realty Co., 224 Pa. Super. 25, 303 A.2d 43, 1973 Pa. Super. LEXIS 1849 (1973). TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 2, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 2. Property Subject to Liens, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 4, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 4. Estates or Inter-ests Subject to Liens, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 3. 32 P.L.E., MECHANICS' LIENS § 5, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 5. Nature of Im-provement, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 4. 32 P.L.E., MECHANICS' LIENS § 6, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 6. -- Fixtures, Copy-right 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 5. 32 P.L.E., MECHANICS' LIENS § 7, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 7. Services Ren-dered and Materials Furnished, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 6. 32 P.L.E., MECHANICS' LIENS § 8, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 8. -- Architects, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 7. 32 P.L.E., MECHANICS' LIENS § 9, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 9. Agreement or Consent of Owner, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 8. 32 P.L.E., MECHANICS' LIENS § 12, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 12. Persons Enti-tled to Liens in General, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

49 P.S. § 1201

9. 32 P.L.E., MECHANICS' LIENS § 13, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 13. Subcontractors, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 10. 32 P.L.E., MECHANICS' LIENS § 21, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 21. Notice of Intention To File Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 11. 32 P.L.E., MECHANICS' LIENS § 25, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 25. -- Description of Parties, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 12. 32 P.L.E., MECHANICS' LIENS § 44, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 44. Property Af-fected, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 13. 33 P.L.E., MINING, OIL AND GAS § 115, Pennsylvania Law Encyclopedia, MINING, OIL AND GAS, § 115. -- Liens, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1301.Righttolien;amount Every improvement and the estate or title of the owner in the property shall be subject to a lien, to be perfected as herein provided, for the payment of all debts due by the owner to the contractor or by the contractor to any of his sub-contractors for labor or materials furnished in the erection or construction, or the alteration or repair of the improve-ment, provided that the amount of the claim, other than amounts determined by apportionment under section 306(b) of this act, shall exceed five hundred dollars ($ 500). NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 2, Act of 1901, 49 P.S. 21, 23, which prohibited claims for alterations or repairs unless the amount exceeded $ 100.00. This section increases the limitation to $ 500.00 as more realistically related to present eco-nomic conditions. It also extends the limitation to new construction as well as alterations and repairs. A claim under $ 500.00 can be speedily disposed of before an alderman or justice of the peace. In Philadelphia, where the jurisdictional limit of the magistrate's court is fixed by the Constitution of 1874 at $ 100.00, compulsory arbitration procedures in the County Court provide for speedy disposition of civil actions. While the filing of a mechanics' lien in the case of alteration and repairs affords a lien from date of filing and a lien in a civil action dates only from verdict, the balancing of the equities and the desirability of the free alienation of property justifies increasing the exemption to $ 500.00. LexisNexis (R) Notes: CASE NOTES 1. Creditor was denied relief from automatic stay under 11 U.S.C.S. § 362 because such relief was futile in that the cred-itor's lien would always be avoidable by the debtor under 11 U.S.C.S. § 545(2) where the involuntary Chapter 11 peti-tion was filed against the debtor five hours before the creditor filed his mechanic's lien obtained pursuant to 49 P.S. § 1301. The lien could never be perfected under 49 P.S. § 1502(a) so as to outrank the debtor's avoidance power, and the effect of 11 U.S.C.S. § 546(b)(1)(A) did not change the outcome because that provision only operated to subject the avoidance power to 49 P.S. § 1508(b), which again related to the time of filing. T.P. Elec., Inc. v. GGC, LLC (In re GGC, LLC), 329 B.R. 36, 2005 Bankr. LEXIS 1569, 45 Bankr. Ct. Dec. (LRP) 51 (Bankr. W.D. Pa. 2005).

49 P.S. § 1301

2. Creditor was denied relief from automatic stay under 11 U.S.C.S. § 362 because such relief was futile in that the cred-itor's lien would always be avoidable by the debtor under 11 U.S.C.S. § 545(2) where the involuntary Chapter 11 peti-tion was filed against the debtor five hours before the creditor filed his mechanic's lien obtained pursuant to 49 P.S. § 1301. The lien could never be perfected under 49 P.S. § 1502(a) so as to outrank the debtor's avoidance power, and the effect of 11 U.S.C.S. § 546(b)(1)(A) did not change the outcome because that provision only operated to subject the avoidance power to 49 P.S. § 1508(b), which again related to the time of filing. T.P. Elec., Inc. v. GGC, LLC (In re GGC, LLC), 329 B.R. 36, 2005 Bankr. LEXIS 1569, 45 Bankr. Ct. Dec. (LRP) 51 (Bankr. W.D. Pa. 2005). 3. Subcontractor's motion for summary judgment was granted in its action upon a mechanic's lien claim against a bank because the bank's stipulation against liens was void, unlawful, and against public policy as to the subcontractor's claim as a sub-subcontractor who entered into its contract with a construction company after the effective date of the amend-ments to the Mechanics' Lien Law, 49 P.S. §§ 1101-1902; the subcontractor had every right to expect that the amend-ments applied to its contract and that there would be no ability by the bank to avoid a lien if the company fail to pay it because the subcontractor executed a contract with a subcontractor in direct privity of a contract with a contractor since the company had contracted directly with the contractor, and pursuant to the definition of "subcontractor" in the Law, 49 P.S. § 1201(5), the subcontractor had the right to file a lien against the bank's property rights. Brubacher Excavating, Inc. v. Commerce Bank/harrisburg, N.A., 2008 Pa. Dist. & Cnty. Dec. LEXIS 166 (Dec. 22, 2008). 4. Subcontractors who performed work for the lessee as its leasehold in a high-rise office building did not have to serve preliminary notice of their intent to seek mechanics' lien claims before completing their work at the premises. The sub-contractors were engaged in 49 P.S. § 1201(10) erection and construction work, and, thus, the requirement of sending preliminary notice under 49 P.S. § 1501 did not apply, which meant the subcontractors had valid lien claims to pursue payment of 49 P.S. § 1301 unpaid invoice amounts. Wyatt Inc. v. Citizens Bank of Pa., 2009 PA Super 107, 976 A.2d 557, 2009 Pa. Super. LEXIS 1008 (Pa. Super. Ct. 2009). 5. Subcontractors who performed work for the lessee as its leasehold in a high-rise office building did not have to serve preliminary notice of their intent to seek mechanics' lien claims before completing their work at the premises. The sub-contractors were engaged in 49 P.S. § 1201(10) erection and construction work, and, thus, the requirement of sending preliminary notice under 49 P.S. § 1501 did not apply, which meant the subcontractors had valid lien claims to pursue payment of 49 P.S. § 1301 unpaid invoice amounts. Wyatt Inc. v. Citizens Bank of Pa., 2009 PA Super 107, 976 A.2d 557, 2009 Pa. Super. LEXIS 1008 (Pa. Super. Ct. 2009). 6. Subcontractor's motion for summary judgment was granted in its action upon a mechanic's lien claim against a bank because the bank's stipulation against liens was void, unlawful, and against public policy as to the subcontractor's claim as a sub-subcontractor who entered into its contract with a construction company after the effective date of the amend-ments to the Mechanics' Lien Law, 49 P.S. §§ 1101-1902; the subcontractor had every right to expect that the amend-ments applied to its contract and that there would be no ability by the bank to avoid a lien if the company fail to pay it because the subcontractor executed a contract with a subcontractor in direct privity of a contract with a contractor since the company had contracted directly with the contractor, and pursuant to the definition of "subcontractor" in the Law, 49 P.S. § 1201(5), the subcontractor had the right to file a lien against the bank's property rights. Brubacher Excavating, Inc. v. Commerce Bank/harrisburg, N.A., 2008 Pa. Dist. & Cnty. Dec. LEXIS 166 (Dec. 22, 2008). 7. In a Pa. R. App. P. 1925(a) proceeding, the court recommended its judgment in favor of a contractor as to a mechanic's lien be affirmed where the court found that a contractor established that a homeowner entered into a contrac-tor for the installation of a heating system, it was not a fixed price contract, all of the materials that were ordered for the job were delivered, and all of the labor billed was undertaken. R. C. Ford Plumbing & Heating, Inc. v. Thomer, 2006 Pa. Dist. & Cnty. Dec. LEXIS 276 (June 13, 2006).

49 P.S. § 1301

8. Creditor was denied relief from automatic stay under 11 U.S.C.S. § 362 because such relief was futile in that the cred-itor's lien would always be avoidable by the debtor under 11 U.S.C.S. § 545(2) where the involuntary Chapter 11 peti-tion was filed against the debtor five hours before the creditor filed his mechanic's lien obtained pursuant to 49 P.S. § 1301. The lien could never be perfected under 49 P.S. § 1502(a) so as to outrank the debtor's avoidance power, and the effect of 11 U.S.C.S. § 546(b)(1)(A) did not change the outcome because that provision only operated to subject the avoidance power to 49 P.S. § 1508(b), which again related to the time of filing. T.P. Elec., Inc. v. GGC, LLC (In re GGC, LLC), 329 B.R. 36, 2005 Bankr. LEXIS 1569, 45 Bankr. Ct. Dec. (LRP) 51 (Bankr. W.D. Pa. 2005). 9. Builder was not entitled to interest and attorneys' fees in the mechanics' lien pursuant to 49 P.S. § 1301, as interest and attorneys' fees did not constitute labor or materials as defined in 49 P.S. § 1201(7), (9). Artsmith Dev. Group, Inc. v. Updegraff, 2005 PA Super 11, 868 A.2d 495, 2005 Pa. Super. LEXIS 9 (Pa. Super. Ct. 2005), appeal denied by 586 Pa. 720, 890 A.2d 1055, 2005 Pa. LEXIS 2833 (2005). 10. Builder was improperly denied profit in the mechanics' lien pursuant to 49 P.S. § 1301, as the owner was bound to pay profit to the builder if the builder accomplished the work. Artsmith Dev. Group, Inc. v. Updegraff, 2005 PA Super 11, 868 A.2d 495, 2005 Pa. Super. LEXIS 9 (Pa. Super. Ct. 2005), appeal denied by 586 Pa. 720, 890 A.2d 1055, 2005 Pa. LEXIS 2833 (2005). 11. Contractor was entitled to amounts orally agreed to with a homeowner which totalled more than the amount stated in the contractor's mechanic's lien because under 49 P.S. §§ 1201, 1301 & 1503 of the mechanic's lien law, where the homeowner had paid partial amounts in excess of the lien amount by agreement of the parties, the lien for the balance of the services provided by the contractor may be collected: the purpose of the mechanic's lien law is to provide security for the performance of a contractor's services. Nowicki Constr. Co. v. Panar Corp., N.V., 342 Pa. Super. 8, 492 A.2d 36, 1985 Pa. Super. LEXIS 7253 (1985). 12. The Mechanic's Lien Law, Pa. Stat. Ann. tit. 49, § 1101 et seq., provides a right to a mechanic's lien to a contractor who is owed a debt for labor or materials furnished in the erection or construction, or alteration or repair of property, pursuant to Pa. Sat. Ann. tit. 49, § 1301. Stratford v. Boland, 306 Pa. Super. 475, 452 A.2d 824, 1982 Pa. Super. LEXIS 5709 (1982). TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 2, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 2. Property Subject to Liens, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 4, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 4. Estates or Inter-ests Subject to Liens, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 3. 32 P.L.E., MECHANICS' LIENS § 5, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 5. Nature of Im-provement, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 4. 32 P.L.E., MECHANICS' LIENS § 12, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 12. Persons Enti-tled to Liens in General, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 5. 32 P.L.E., MECHANICS' LIENS § 44, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 44. Property Af-fected, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

49 P.S. § 1302

§1302.Presumptionastouseofmaterials Materials for use in or upon an improvement placed on or near the property or delivered to the owner pursuant to a contract shall be presumed to have been used therein in the absence of proof to the contrary. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 3, Act of 1901, 49 P.S. 27, and clarified to indicate that the presumption is rebuttable and not absolute. To the extent that any prior decisions may be in conflict with this principle they are overruled by this section.

§1303.Liennotallowedincertaincases (a) Persons other than contractors or subcontractors. No lien shall be allowed in favor of any person other than a con-tractor or subcontractor, as defined herein, even though such person furnishes labor or materials to an improvement. (b) Public purpose. No lien shall be allowed for labor or materials furnished for a purely public purpose. (c) Conveyance prior to lien. If the property by conveyed in good faith and for a valuable consideration prior to the filing of a claim for alterations or repairs, the lien shall be wholly lost. (d) 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. (e) Security interests. No lien shall be allowed for that portion of a debt representing the contract price of any materi-als against which the claimant holds or has claimed a security interest under the Pennsylvania Uniform Commercial Code or to which he has reserved title or the right to reacquire title. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Subsection (a).. This subsection is new. There is no exact counterpart in the Act of 1901. It declares existing decisional law and for sake of emphasis has been placed in Section 303 as a caveat. Subsection (b).. Taken from Section 2, Act of 1901, 49 P.S. 22. The express references of that section exemption prop-erty of lunatics, guardians of minors, or trustees, unless the work was undertaken by authority of the court or of power contained in the deed or will, are omitted as unnecessary since these are matters of general substantive law. The omis-sion of reference to lunatics, minors, and trustees is not intended to effect any change in the law. Subsection (c).. Taken from Section 13, Act of 1901, 49 P.S. 203, Supp. The provisions of that section of the Act of 1901 which gave priority to mechanics' liens over advance money mortgages were declared unconstitutional, Page v. Carr, 232 Pa. 371 (1911), 81 A. 430, and these provisions are therefore omitted from the present act. The provision pro-tecting purchasers in good faith from inchoate, unrecorded liens for alterations and repairs is a salutary provision which is retained. Subsection (d).. Taken from Section 2, Act of 1901, 49 P.S. 24.

49 P.S. § 1303

Subsection (e).. The first part of this subsection, referring to the Uniform Commercial Code, is an adaptation of the Act of 1935, July 12, P.L. 667, 49 P.S. 32, Supp., which makes reference to conditional sales, bailment leases, etc., all of which are supplanted by the Uniform Commercial Code. Prior to the amending Act of 1935, supra, the court held that reservation of title and right to remove did not defeat a lien as to fixtures becoming a part of the real estate. Clayton v. Lienhard, 312 Pa. 433 (1933), 167 A. 321. LexisNexis (R) Notes: CASE NOTES In a subcontractor's appeal of a trial court decision that sustained the preliminary objections filed by the homeowners and struck the mechanics' lien claim filed by the subcontractor, an appellate court determined that the trial court proper-ly sustained the preliminary objections and struck the lien claim because a stipulation of waiver of liens had been filed with the prothonotary before the subcontractor began work on the homeowners' residence, thus, the subcontractor was on constructive notice of the waiver before it began work on the home. The trial court was found to have prudently sought to review the original stipulation of waiver of liens and properly took judicial notice of it prior to sustaining the homeowners' preliminary objections. Floors, Inc. v. Altig, 2009 PA Super 2, 963 A.2d 912, 2009 Pa. Super. LEXIS 3 (Pa. Super. Ct. 2009), appeal denied by 602 Pa. 667, 980 A.2d 608, 2009 Pa. LEXIS 2089 (2009). 2. On its face 49 P.S. § 1505 was simply not limited to those categories of exemption or immunities delineated by 49 P.S. § 1303, which expressly disallows mechanics liens in certain cases, as was proposed by a landowner; absent com-pelling authority requiring the adoption of such interpretation of the Mechanics' Lien Law, 49 P.S. § 1101 et seq., the appellate court declined to go against the plain language of 49 P.S. § 1505 which permitted preliminary objections to be filed by any party who could demonstrate that the property in question was subject to some type of exemption or im-munity from lien. Mele Constr. Co. v. Crown Am. Corp., 421 Pa. Super. 569, 618 A.2d 956, 1992 Pa. Super. LEXIS 4011 (1992), appeal denied by 536 Pa. 627, 637 A.2d 288 (1994). 3. Although a mechanic's lien could not be filed against a public housing authority in connection with construction of buildings for a housing project, pursuant to 49 P.S. § 1303(b), a lien could be filed against the private contractor that performed the work and which had not transferred title to the property to the housing authority before the lien was filed. Empire Excavating Co. v. Luzerne County Housing Authority, 303 Pa. Super. 25, 449 A.2d 60, 1982 Pa. Super. LEXIS 4862 (1982). 4. Trial court's order dismissing a mechanic's lien filed by a private contractor against a city was reversed where the contractor had followed the proper procedures to subject a municipal arena to the lien under 49 P.S. § 1303(d), by re-ceiving the city's contractual consent to be subject to a mechanics' lien claim; the court found that 49 P.S. § 1303(b) did not preclude a viable mechanics' lien, nor did anything in either statutory or case law preclude a mechanics' lien claim against a municipality. American Seating Co. v. Philadelphia, 434 Pa. 370, 256 A.2d 599, 1969 Pa. LEXIS 462 (1969). 5. Trial court properly struck a subcontractor's mechanics' lien against a pump station and sustained the preliminary objections of the general contractor and a township's municipal sanitary authority, as the pump project for which the subcontractor provided labor and materials for was a project involving a public purpose for which a lien could not valid-

49 P.S. § 1303

ly attach. Cornerstone Land Dev. Co. of Pittsburgh LLC v. Wadwell Group, 2008 PA Super 256, 959 A.2d 1264, 2008 Pa. Super. LEXIS 3507 (Pa. Super. Ct. 2008). 6. In a subcontractor's appeal of a trial court decision that sustained the preliminary objections filed by the homeowners and struck the mechanics' lien claim filed by the subcontractor, an appellate court determined that the trial court proper-ly sustained the preliminary objections and struck the lien claim because a stipulation of waiver of liens had been filed with the prothonotary before the subcontractor began work on the homeowners' residence, thus, the subcontractor was on constructive notice of the waiver before it began work on the home. The trial court was found to have prudently sought to review the original stipulation of waiver of liens and properly took judicial notice of it prior to sustaining the homeowners' preliminary objections. Floors, Inc. v. Altig, 2009 PA Super 2, 963 A.2d 912, 2009 Pa. Super. LEXIS 3 (Pa. Super. Ct. 2009), appeal denied by 602 Pa. 667, 980 A.2d 608, 2009 Pa. LEXIS 2089 (2009). 7. Trial court properly struck a subcontractor's mechanics' lien against a pump station and sustained the preliminary objections of the general contractor and a township's municipal sanitary authority, as the pump project for which the subcontractor provided labor and materials for was a project involving a public purpose for which a lien could not valid-ly attach. Cornerstone Land Dev. Co. of Pittsburgh LLC v. Wadwell Group, 2008 PA Super 256, 959 A.2d 1264, 2008 Pa. Super. LEXIS 3507 (Pa. Super. Ct. 2008). 8. Because humane society's shelter served a purely public purpose, it was exempt from appellant contractors' mechan-ics liens under 49 P.S. § 1303(b); the shelter provided the primary means for controlling the animal population, the county had delegated the duty of enforcing the animal cruelty laws to the shelter, and it did not operate for economic gain. Carter-Jones Lumber Co. v. Northwestern Pa. Humane Soc'y LGL Animal Care Prods., 913 A.2d 1002, 2006 Pa. Commw. LEXIS 689 (Pa. Commw. Ct. 2006), appeal denied by 594 Pa. 682, 932 A.2d 1290, 2007 Pa. LEXIS 2031 (2007). 9. Because the contractor failed to receive a written notice from the owners as required by the Mechanic's Lien Act, 49 P.S. § 1303(d), and because the contractor failed to make the required showing to justify estoppel, the trial court's order that sustained the owners' preliminary objections that the contractor's lien was deficient was sustained. Key Automotive Equip. Specialists v. Abernethy, 431 Pa. Super. 358, 636 A.2d 1126, 1994 Pa. Super. LEXIS 18 (1994). 10. On its face 49 P.S. § 1505 was simply not limited to those categories of exemption or immunities delineated by 49 P.S. § 1303, which expressly disallows mechanics liens in certain cases, as was proposed by a landowner; absent com-pelling authority requiring the adoption of such interpretation of the Mechanics' Lien Law, 49 P.S. § 1101 et seq., the appellate court declined to go against the plain language of 49 P.S. § 1505 which permitted preliminary objections to be filed by any party who could demonstrate that the property in question was subject to some type of exemption or im-munity from lien. Mele Constr. Co. v. Crown Am. Corp., 421 Pa. Super. 569, 618 A.2d 956, 1992 Pa. Super. LEXIS 4011 (1992), appeal denied by 536 Pa. 627, 637 A.2d 288 (1994). 11. While normally an owner could consent to a tenant making improvements on his property without assuming any liability for the work done under 49 P.S. § 1303(d), the owner could not escape liability for the improvements where he knew the tenants intended to mislead the contractor and enter into a contract acting as if they were the title owners of the property. Kelly v. Hannan, 388 Pa. Super. 638, 566 A.2d 310, 1989 Pa. Super. LEXIS 3414 (1989). 12. Corporate lessor might have been estopped from asserting a defense under 49 Pa. Stat. § 1303 against a contractor's lien because the lessee who contracted for the work was the lessor's sole stockholder and president. Chambers v. Todd Steel Pickling, Inc., 323 Pa. Super. 119, 470 A.2d 159, 1983 Pa. Super. LEXIS 4498 (1983). 13. Although a mechanic's lien could not be filed against a public housing authority in connection with construction of buildings for a housing project, pursuant to 49 P.S. § 1303(b), a lien could be filed against the private contractor that performed the work and which had not transferred title to the property to the housing authority before the lien was filed. Empire Excavating Co. v. Luzerne County Housing Authority, 303 Pa. Super. 25, 449 A.2d 60, 1982 Pa. Super. LEXIS 4862 (1982).

49 P.S. § 1303

14. Trial court's order dismissing a mechanic's lien filed by a private contractor against a city was reversed where the contractor had followed the proper procedures to subject a municipal arena to the lien under 49 P.S. § 1303(d), by re-ceiving the city's contractual consent to be subject to a mechanics' lien claim; the court found that 49 P.S. § 1303(b) did not preclude a viable mechanics' lien, nor did anything in either statutory or case law preclude a mechanics' lien claim against a municipality. American Seating Co. v. Philadelphia, 434 Pa. 370, 256 A.2d 599, 1969 Pa. LEXIS 462 (1969). TREATISES AND ANALYTICAL MATERIALS 1. 28 P.L.E., JUDICIAL SALES § 22, Pennsylvania Law Encyclopedia, JUDICIAL SALES, § 22. Divestiture of Liens, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 3, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 3. -- Exempt Prop-erty, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 3. 32 P.L.E., MECHANICS' LIENS § 10, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 10. -- Tenant Act-ing for Landlord, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 4. 32 P.L.E., MECHANICS' LIENS § 24, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 24. Contents of Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 5. 32 P.L.E., MECHANICS' LIENS § 54, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 54. Taking Securi-ty, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1304.Excessivecurtilage Where an owner objects that a lien has been claimed against more property than should justly be included therein, the court upon petition may, after hearing by deposition or otherwise, limit the boundaries of the property subject to the lien. Failure to raise this objection preliminarily shall not be a waiver of the right to plead the same as a defense thereaf-ter. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 23, Act of 1901, 49 P.S. 133, and continues the former procedure. The last sentence is added to make clear that failure to object preliminarily will not constitute a waiver. The omission of express reference to the right of lienholders or persons having an interest in the property to object is not intended to affect such right, which is governed by intervention rules 2326 et seq. (Pennsylvania Rules of Civil Proce-dure.) LexisNexis (R) Notes: TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 35, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 35. Striking Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

49 P.S. § 1305

§1305.Righttolienincaseofnoncompletionofwork Except in case of destruction by fire or other casualty, where, through no fault of the claimant, the improvement is not completed, the right to lien shall nevertheless exist. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Taken from Section 19, Act of 1901, 49 P.S. 79, Section 20, Act of 1901, 49 P.S. 80, which authorized suspension of the work and completion of the contract on the death, bankruptcy or insolvency of the owner or contractor, has been omitted entirely. Such contingencies and the right to affirm or disaffirm a contract will now be governed by the agree-ments of the parties and by existing bankruptcy and decedents' estates law. LexisNexis (R) Notes: CASE NOTES 1. In a Chapter 7 debtor's action to recover on a mechanics' lien against a hotel and the owner of a construction project for the hotel, the debtor failed to set forth specific facts showing that there was a genuine issue of fact as to whether its noncompletion of work was through no fault of its own, as was required by 49 Pa. Stat. Ann. § 1305 for the filing of a mechanics' lien despite noncompletion. Thus, the debtor was not entitled to the remedy of a mechanics' lien and had no right to recover on its claims. Cliffwood Elec. Contr., Inc. v. Century Gen. Constr., Inc. (In re Cliffwood Elec. Contr., Inc.), 415 B.R. 149, 2009 Bankr. LEXIS 3798 (Bankr. E.D. Pa. 2009). 2. Despite claims to the contrary in preliminary objections to a subcontractor's action against a property owner and the owner's lien surety to enforce a mechanics' lien, the subcontractor averred that its failure to complete the contract was not its fault and stated in the complaint that the property owner told the subcontractor that its services were no longer needed; the preliminary objection was overruled since the complaint satisfied the pleading requirements of 49 P.S. § 1305. Hightec HVAC, Inc. v. Travelers Cas. & Sur. Co., 2005 Phila. Ct. Com. Pl. LEXIS 318 (July 15, 2005). 3. In a Chapter 7 debtor's action to recover on a mechanics' lien against a hotel and the owner of a construction project for the hotel, the debtor failed to set forth specific facts showing that there was a genuine issue of fact as to whether its noncompletion of work was through no fault of its own, as was required by 49 Pa. Stat. Ann. § 1305 for the filing of a mechanics' lien despite noncompletion. Thus, the debtor was not entitled to the remedy of a mechanics' lien and had no right to recover on its claims. Cliffwood Elec. Contr., Inc. v. Century Gen. Constr., Inc. (In re Cliffwood Elec. Contr., Inc.), 415 B.R. 149, 2009 Bankr. LEXIS 3798 (Bankr. E.D. Pa. 2009). 4. Despite claims to the contrary in preliminary objections to a subcontractor's action against a property owner and the owner's lien surety to enforce a mechanics' lien, the subcontractor averred that its failure to complete the contract was not its fault and stated in the complaint that the property owner told the subcontractor that its services were no longer needed; the preliminary objection was overruled since the complaint satisfied the pleading requirements of 49 P.S. § 1305. Hightec HVAC, Inc. v. Travelers Cas. & Sur. Co., 2005 Phila. Ct. Com. Pl. LEXIS 318 (July 15, 2005).

49 P.S. § 1306

§1306.Consolidationorapportionmentofclaims (a) Consolidation of claims. Where a debt is incurred for labor or materials furnished continuously by the same claim-ant for work upon a single improvement but under more than one contract, the claimant may elect to file a single claim for the entire debt. In such case, "completion of the work" shall not be deemed to occur with respect to any of the con-tracts until it has occurred with respect to all of them. (b) Apportionment of claims. Where a debt is incurred for labor or materials furnished by the same claimant for work upon several different improvements which do not form all or part of a single business or residential plant, the claimant shall file separate claims with respect to each such improvement, with the amount of each claim determined by appor-tionment of the total debt to the several improvements, and in such case, the amount of each separate claim may be less than five hundred dollars ($ 500), provided that the total debt exceeds five hundred dollars ($ 500). In no other case shall an apportioned claim be allowed. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 12, Act of 1901, 49 P.S. 54, 55. The section is clarified to apply to both business or residential plants. Previous decisions under Section 12, Act of 1901, which used only the word "plant," held that it was applicable only to structures used to carry on trade or business. The use of the words "residential plant" is not intended to change the previous law that a single claim cannot be filed against an entire row of separate residential dwellings. Todd v. Gernert, 223 Pa. 103 (1909), 72 A. 249. LexisNexis (R) Notes: CASE NOTES 1. Customer's preliminary objections to a mechanic's lien were sustained, as the correct owner of the property was not listed, there was no adequate description of the improvements and of the property, and the claims were not separated, as required by 49 P.S. §§ 1503 and 1306(b) of the Pennsylvania Mechanic's Lien Law; judicial notice pursuant to Pa. R. Evid. 201(b) was taken of a document purporting to list the record owner of the property. Penstan Supply Div. of Hajoca Corp. v. Traditions of Am., L.P., 2010 Pa. Dist. & Cnty. Dec. LEXIS 2 (Jan. 7, 2010). 2. Customer's preliminary objections to a mechanic's lien were sustained, as the correct owner of the property was not listed, there was no adequate description of the improvements and of the property, and the claims were not separated, as required by 49 P.S. §§ 1503 and 1306(b) of the Pennsylvania Mechanic's Lien Law; judicial notice pursuant to Pa. R. Evid. 201(b) was taken of a document purporting to list the record owner of the property. Penstan Supply Div. of Hajoca Corp. v. Traditions of Am., L.P., 2010 Pa. Dist. & Cnty. Dec. LEXIS 2 (Jan. 7, 2010). 3. Lien claimant was required to apportion its lien among the various houses in the subdivision since the subdivision plan had been recorded prior to the time the lien claimant supplied materials. Martin Stone Quarries v. Robert M. Koffel Builders, 2001 PA Super 318, 786 A.2d 998, 2001 Pa. Super. LEXIS 3430 (Pa. Super. Ct. 2001), appeal denied by 569 Pa. 707, 805 A.2d 525, 2002 Pa. LEXIS 1726 (2002). 4. Lien claimant knew that a subdivision plan had been recorded, but it did not supply materials after it was finalized; therefore, the lien claimant had to apportion its claim among the houses under 49 P.S. § 1306(b). Martin Stone Quarries v. Robert M. Koffel Builders, 2001 PA Super 318, 786 A.2d 998, 2001 Pa. Super. LEXIS 3430 (Pa. Super. Ct. 2001), appeal denied by 569 Pa. 707, 805 A.2d 525, 2002 Pa. LEXIS 1726 (2002).

49 P.S. § 1306

5. Apportionment of Claims provisions of the Mechanics' Lien Law, 49 P.S. § 1306(b), did not preclude the enforce-ment of liens filed against multiple units of a new condominium where the amount claimed in each lien represented the total claim for all work done on all the common elements and separate units; unapportioned mechanics' liens that were filed were therefore valid. Metco, Inc. v. Moss Creek, Inc., 529 Pa. 53, 601 A.2d 802, 1992 Pa. LEXIS 21 (1992). 6. Where glass and heating companies asserted that their mechanics' lien had priority over purchaser from sheriff sale, the appellate court found that mechanics' liens did not relate back to the date of visible commencement, because they failed to comply with 49 P.S. § 1306. Equibank v. Adle, Inc., 407 Pa. Super. 553, 595 A.2d 1284, 1991 Pa. Super. LEX-IS 2566 (1991). 7. Where a builder contracted with a corporation to build eight condominiums for the corporation and the builder filed two mechanic's lien claims, which alleged sums due and owing, one against the corporation and one against an individ-ual who purchased two of the condominiums for the corporation, such mechanic's liens were properly struck because under 49 P.S. § 1306(b), the builder was required to file separate lien claims against each condominium unit; the eight condominiums each had their own walkway, their own outside decks, each was designed for a separate family, there was no common hallway as might be found in an apartment building, there was no communication between the units, and each townhouse had its own utilities, including its own oil tank for heat. Metco, Inc. v. Moss Creek, Inc., 385 Pa. Super. 542, 561 A.2d 808, 1989 Pa. Super. LEXIS 2183 (1989), reversed by 529 Pa. 53, 601 A.2d 802, 1992 Pa. LEXIS 21 (1992). TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 2, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 2. Property Subject to Liens, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 5, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 5. Nature of Im-provement, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 3. 32 P.L.E., MECHANICS' LIENS § 23, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 23. Consolidation or Apportionment of Claims, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 4. 32 P.L.E., MECHANICS' LIENS § 31, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 31. -- Time For Filing, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1307.Removalordetachmentofimprovementsubjecttoclaim (a) Removal prohibited; Effect.--No improvement subject to the lien of a claim filed in accordance with this act shall be removed or detached from the land except pursuant to title obtained at a judicial sale or by one owning the land and not named as a defendant. Any improvement otherwise removed shall remain liable to the claim filed, except in the hands of a purchaser for value. (b) Restraint of removal by court.--The court may on petition restrain the removal of the improvement in accordance with the Pennsylvania Rules of Civil Procedure governing actions to prevent waste. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 27, Act of 1901, 49 P.S. 57. Subsection (b) supplies substantially the same procedures and reme-dies as those authorized by Section 27, supra. No change in the law is intended.

49 P.S. § 1401

§1401.Waiveroflienbyclaimant (a) RESIDENTIAL PROPERTY. A contractor or subcontractor may waive his right to file a claim against residential property by a written instrument signed by him or by any conduct which operates equitably to estop such contractor from filing a claim. (b) NONRESIDENTIAL BUILDINGS. (1) Except as provided in subsection (a), a waiver by a contractor of lien rights is against public policy, unlawful and void unless given in consideration for payment for the work, services, materials or equipment provided and only to the extent that such payment is actually received. (2) Except as provided in subsection (a), a waiver by a subcontractor of lien rights is against public policy, unlawful and void, unless given in consideration for payment for the work, services, materials or equipment provided and only to the extent that such payment is actually received, or unless the contractor has posted a bond guaranteeing payment for labor and materials provided by subcontractors. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 15, Act of 1901, as amended 1903, April 24, P.L. 297, 49 P.S. 71, and clarified to indicate that a waiver need not be signed by any person other than the person waiving his right to file a claim. HISTORY: Act 2006-52 (H.B. 1637), P.L. 210, § 1, approved June 29, 2006, eff. Jan. 1, 2007.; Act 2009-34 (S.B. 563), P.L. 298, § 1, approved Aug. 11, 2009, eff. in 60 days. NOTES: LexisNexis (R) Notes: Amendment Notes.--The 2009 amendment rewrote (a); substituted "subsection (a)" for "subsection (a)(1)" in (b)(1); and substituted "subsection (a)" for "subsection (a)(2)" in (b)(2). The 2006 amendment rewrote the section, which formerly read: "A contractor or subcontractor may waive his right to file a claim by a written instrument signed by him or by any conduct which operates equitably to estop such contractor or subcontractor from filing a claim." CASE NOTES 1. In a subcontractor's appeal of a trial court decision that sustained the preliminary objections filed by the homeowners and struck the mechanics' lien claim filed by the subcontractor, an appellate court determined that the trial court proper-ly sustained the preliminary objections and struck the lien claim because a stipulation of waiver of liens had been filed with the prothonotary before the subcontractor began work on the homeowners' residence, thus, the subcontractor was on constructive notice of the waiver before it began work on the home. The trial court was found to have prudently sought to review the original stipulation of waiver of liens and properly took judicial notice of it prior to sustaining the homeowners' preliminary objections. Floors, Inc. v. Altig, 2009 PA Super 2, 963 A.2d 912, 2009 Pa. Super. LEXIS 3 (Pa. Super. Ct. 2009), appeal denied by 602 Pa. 667, 980 A.2d 608, 2009 Pa. LEXIS 2089 (2009).

49 P.S. § 1401

2. A trial court erred in sustaining defendants' preliminary objections to a mechanic's lien claim filed by a subcontractor on the basis of a waiver of rights in a construction contract, which was statutorily permitted under 49 P.S. § 1401, be-cause the subcontractor also alleged the existence of a second contract that did not contain a waiver. Mar Ray, Inc. v. Schroeder, 242 Pa. Super. 14, 363 A.2d 1136, 1976 Pa. Super. LEXIS 2810 (1976). 3. Subcontractor's motion for summary judgment was granted in its action upon a mechanic's lien claim against a bank because the bank's stipulation against liens was void, unlawful, and against public policy as to the subcontractor's claim as a sub-subcontractor who entered into its contract with a construction company after the effective date of the amend-ments to the Mechanics' Lien Law, 49 P.S. §§ 1101-1902; the subcontractor had every right to expect that the amend-ments applied to its contract and that there would be no ability by the bank to avoid a lien if the company fail to pay it because the subcontractor executed a contract with a subcontractor in direct privity of a contract with a contractor since the company had contracted directly with the contractor, and pursuant to the definition of "subcontractor" in the Law, 49 P.S. § 1201(5), the subcontractor had the right to file a lien against the bank's property rights. Brubacher Excavating, Inc. v. Commerce Bank/harrisburg, N.A., 2008 Pa. Dist. & Cnty. Dec. LEXIS 166 (Dec. 22, 2008). 4. Subcontractor's motion for summary judgment was granted in its action upon a mechanic's lien claim against a bank because the bank's stipulation against liens was void, unlawful, and against public policy as to the subcontractor's claim as a sub-subcontractor who entered into its contract with a construction company after the effective date of the amend-ments to the Mechanics' Lien Law, 49 P.S. §§ 1101-1902, when the subcontractor had every right to expect that the amendments applied to its contract and that there would be no ability by the bank to avoid a lien if the company fail to pay it; the language of the amendments to the Mechanics' Lien Law in § 4 of Act 52 is clear and free from all ambigui-ty, in that It applies to all contracts entered into on or after January 1, 2007, and the legislature has the power to grant new statutory rights such that a sub-subcontractor might have a greater right to file a claim than a subcontractor or con-tractor where the sub-subcontractor executed a sub-subcontract after the effective date of amendments to the Mechanics' Lien Law. Brubacher Excavating, Inc. v. Commerce Bank/harrisburg, N.A., 2008 Pa. Dist. & Cnty. Dec. LEXIS 166 (Dec. 22, 2008). 5. Pursuant to 49 P.S. § 1401(a) and the rules of statutory construction under 1 Pa.C.S. §§ 1921 and 1926, a paving sub-contractor's mechanics' lien was valid despite there having been filed a stipulation against liens, as the contract was en-tered into after the amendments to the Pennsylvania Mechanics' Lien Law, 49 P.S. § 1101 et seq., such that the stipula-tion of liens was not controlling; the Law was not applied retroactively in that situation. Brubacher Excavating, Inc. v. Commerce Bank/Harrisburg, N.A., 2010 PA Super 67, 995 A.2d 362, 2010 Pa. Super. LEXIS 334 (Pa. Super. Ct. 2010). 6. Preliminary objection in a mechanic's lien claim by a subcontractor was sustained, as the subcontractor may have waived its rights to file a claim under 49 P.S. § 1401(a)(2)(i) in a residential construction project, such that the require-ments of amended 49 P.S. § 1402 were satisfied; accordingly, a contractor's waiver of lien rights was valid and enforce-able against the subcontractor. Ken's Constr. of S. Jersey, Inc. v. Medeiros, 2009 Pa. Dist. & Cnty. Dec. LEXIS 268 (June 17, 2009). 7. Pursuant to 49 P.S. § 1401(a) and the rules of statutory construction under 1 Pa.C.S. §§ 1921 and 1926, a paving sub-contractor's mechanics' lien was valid despite there having been filed a stipulation against liens, as the contract was en-tered into after the amendments to the Pennsylvania Mechanics' Lien Law, 49 P.S. § 1101 et seq., such that the stipula-tion of liens was not controlling; the Law was not applied retroactively in that situation. Brubacher Excavating, Inc. v. Commerce Bank/Harrisburg, N.A., 2010 PA Super 67, 995 A.2d 362, 2010 Pa. Super. LEXIS 334 (Pa. Super. Ct. 2010). 8. Preliminary objection in a mechanic's lien claim by a subcontractor was sustained, as the subcontractor may have waived its rights to file a claim under 49 P.S. § 1401(a)(2)(i) in a residential construction project, such that the require-

49 P.S. § 1401

ments of amended 49 P.S. § 1402 were satisfied; accordingly, a contractor's waiver of lien rights was valid and enforce-able against the subcontractor. Ken's Constr. of S. Jersey, Inc. v. Medeiros, 2009 Pa. Dist. & Cnty. Dec. LEXIS 268 (June 17, 2009). 9. In a subcontractor's appeal of a trial court decision that sustained the preliminary objections filed by the homeowners and struck the mechanics' lien claim filed by the subcontractor, an appellate court determined that the trial court proper-ly sustained the preliminary objections and struck the lien claim because a stipulation of waiver of liens had been filed with the prothonotary before the subcontractor began work on the homeowners' residence, thus, the subcontractor was on constructive notice of the waiver before it began work on the home. The trial court was found to have prudently sought to review the original stipulation of waiver of liens and properly took judicial notice of it prior to sustaining the homeowners' preliminary objections. Floors, Inc. v. Altig, 2009 PA Super 2, 963 A.2d 912, 2009 Pa. Super. LEXIS 3 (Pa. Super. Ct. 2009), appeal denied by 602 Pa. 667, 980 A.2d 608, 2009 Pa. LEXIS 2089 (2009). 10. Subcontractor's motion for summary judgment was granted in its action upon a mechanic's lien claim against a bank because the bank's stipulation against liens was void, unlawful, and against public policy as to the subcontractor's claim as a sub-subcontractor who entered into its contract with a construction company after the effective date of the amend-ments to the Mechanics' Lien Law, 49 P.S. §§ 1101-1902; the subcontractor had every right to expect that the amend-ments applied to its contract and that there would be no ability by the bank to avoid a lien if the company fail to pay it because the subcontractor executed a contract with a subcontractor in direct privity of a contract with a contractor since the company had contracted directly with the contractor, and pursuant to the definition of "subcontractor" in the Law, 49 P.S. § 1201(5), the subcontractor had the right to file a lien against the bank's property rights. Brubacher Excavating, Inc. v. Commerce Bank/harrisburg, N.A., 2008 Pa. Dist. & Cnty. Dec. LEXIS 166 (Dec. 22, 2008). 11. Subcontractor's motion for summary judgment was granted in its action upon a mechanic's lien claim against a bank because the bank's stipulation against liens was void, unlawful, and against public policy as to the subcontractor's claim as a sub-subcontractor who entered into its contract with a construction company after the effective date of the amend-ments to the Mechanics' Lien Law, 49 P.S. §§ 1101-1902, when the subcontractor had every right to expect that the amendments applied to its contract and that there would be no ability by the bank to avoid a lien if the company fail to pay it; the language of the amendments to the Mechanics' Lien Law in § 4 of Act 52 is clear and free from all ambigui-ty, in that It applies to all contracts entered into on or after January 1, 2007, and the legislature has the power to grant new statutory rights such that a sub-subcontractor might have a greater right to file a claim than a subcontractor or con-tractor where the sub-subcontractor executed a sub-subcontract after the effective date of amendments to the Mechanics' Lien Law. Brubacher Excavating, Inc. v. Commerce Bank/harrisburg, N.A., 2008 Pa. Dist. & Cnty. Dec. LEXIS 166 (Dec. 22, 2008). 12. Where a contractor performed labor and furnished materials pursuant to a contract with the premises owner and the contractor subsequently filed a mechanic's lien against the premises, such lien was properly struck by the trial court be-cause the contractor had executed a waiver of liens, and even though such waiver was never delivered, such nondelivery did not render it invalid; the waiver conformed to the statutory requirements outlined in 49 P.S. § 1401, and § 1401 only required that the waiver agreement be written and signed by the contractor. Sullivan Constr. Co. v. Historical Arch Street Dev. Assocs., 364 Pa. Super. 460, 528 A.2d 248, 1987 Pa. Super. LEXIS 8505 (1987). 13. A trial court erred in sustaining defendants' preliminary objections to a mechanic's lien claim filed by a subcontrac-tor on the basis of a waiver of rights in a construction contract, which was statutorily permitted under 49 P.S. § 1401, because the subcontractor also alleged the existence of a second contract that did not contain a waiver. Mar Ray, Inc. v. Schroeder, 242 Pa. Super. 14, 363 A.2d 1136, 1976 Pa. Super. LEXIS 2810 (1976). TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 51, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 51. Waiver in General, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

49 P.S. § 1401

2. 32 P.L.E., MECHANICS' LIENS § 52, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 52. Written In-strument, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1402.Waiverbycontractor;effectonsubcontractor (a) GENERAL RULE. -- To the extent that lien rights may be validly waived by a contractor or subcontractor under section 401(a) or where the contractor has posted a bond under section 401(b)(2), a written contract between the owner and a contractor, or a separate written instrument signed by the contractor, which provides that no claim shall be filed by anyone, shall be binding: but the only admissible evidence thereof, as against a subcontractor, shall be proof of actu-al notice thereof to him before any labor or materials were furnished by him; or proof that such contract or separate written instrument was filed in the office of the prothonotary prior to the commencement of the work upon the ground or within ten (10) days after the execution of the principal contract or not less than ten (10) days prior to the contract with the claimant subcontractor, indexed in the name of the contractor as defendant and the owner as plaintiff and also in the name of the contractor as plaintiff and the owner as defendant. The only admissible evidence that such a provision has, notwithstanding its filing, been waived in favor of any subcontractor, shall be a written agreement to that effect signed by all those who, under the contract, have an adverse interest to the subcontractor's allegation. (b) ELECTRONIC INDEXING.-- Notwithstanding the indexing requirements of subsection (a) in offices of the pro-thonotary in which such a written contract between the owner and contractor or separate written instrument is indexed electronically by means of a computer system or similar system such that the names of the contractor and owner are electronically retrievable regardless of whether the parties are designated as plaintiff or defendant, the contract or sepa-rate written instrument filed with the office of the prothonotary under subsection (a) may be indexed in the name of the contractor as defendant and the owner as plaintiff or in the name of the contractor as plaintiff and the owner as defend-ant. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 15, Act of 1901, as amended 1903, April 24, P.L. 297, 49 P.S. 72. HISTORY: Act 2004-96 (H.B. 237), P.L. 806, § 1, approved Oct. 8, 2004, eff. in 60 days.; Act 2006-52 (H.B. 1637), P.L. 210, § 2, approved June 29, 2006, eff. Jan. 1, 2007.; Act 2009-34 (S.B. 563), P.L. 298, § 1, approved Aug. 11, 2009, eff. in 60 days. NOTES: LexisNexis (R) Notes: Amendment Notes.--The 2009 amendment substituted "To the extent that lien rights may be validly waived by a con-tractor or subcontractor under section 401(a) or where the contractor has posted a bond under section 401(b)(2)" for "Provided lien rights may be waived as set forth under section 401" in the first sentence of (a). The 2006 amendment added "Provided lien rights may be waived as set forth under section 401" in the first sentence of (a) and made a stylistic change. CASE NOTES 1. Building material supplier successfully resisted a claim by a Chapter 7 trustee for a general contractor that owed the supplier almost $50,000 that the supplier's mechanics lien was invalid and unenforceable per 49 Pa. Stat. Ann. § 1402

49 P.S. § 1402

because there was no showing that the claimant had actual notice of the filing of a lien waiver prior to the date on which it first delivered materials to the jobsite, which constituted the "commencement" of work for purposes of § 1402, or that the other three statutory prerequisites had been satisfied. B & L Wholesale Supply, Inc. v. Watkins Builders, Inc. (In re Watkins Builders, Inc.), 381 B.R. 181, 2008 Bankr. LEXIS 278, 49 Bankr. Ct. Dec. (LRP) 125 (Bankr. W.D. Pa. 2008). 2. Although a subcontractor's mechanic's lien claim was timely under 49 P.S. § 1502(a)(2), it was equitably estopped under 49 P.S. § 1402(a)(2)(i) from collecting from the owners because, despite knowing of the general contractor's fi-nancial distress, the subcontractor made no attempt to serve a notice of its lien until after owners closed on the property; this conduct disavailed the owners from asserting their remedy under 49 P.S. § 1601 and placed them at a considerable disadvantage. Had the owners known of the financial condition of the general contractor they would have been able to withhold monies from the general contractor and avoid the lien. Kelly Sys. v. Koda, 2008 Pa. Dist. & Cnty. Dec. LEXIS 250 (Aug. 31, 2008). 3. In a subcontractor's appeal of a trial court decision that sustained the preliminary objections filed by the homeowners and struck the mechanics' lien claim filed by the subcontractor, an appellate court determined that the trial court proper-ly sustained the preliminary objections and struck the lien claim because a stipulation of waiver of liens had been filed with the prothonotary before the subcontractor began work on the homeowners' residence, thus, the subcontractor was on constructive notice of the waiver before it began work on the home. The trial court was found to have prudently sought to review the original stipulation of waiver of liens and properly took judicial notice of it prior to sustaining the homeowners' preliminary objections. Floors, Inc. v. Altig, 2009 PA Super 2, 963 A.2d 912, 2009 Pa. Super. LEXIS 3 (Pa. Super. Ct. 2009), appeal denied by 602 Pa. 667, 980 A.2d 608, 2009 Pa. LEXIS 2089 (2009). 4. Alleged property owner's argument, that the trial court erred in determining that the alleged property owner had not filed an effective waiver of liens because the alleged property owner did not have title to the property when the waiver was filed, was itself waived as there was no evidence in the record about when the buy and sell agreement, which might have indicated ownership, was executed, and thus no indication that the alleged property owner actually owned the property at the time the waiver was filed. Phila. Constr. Servs., LLC v. Domb, LLC, 2006 PA Super 184, 903 A.2d 1262, 2006 Pa. Super. LEXIS 1640 (Pa. Super. Ct. 2006). 5. Contractor's waiver of liens for itself and all subcontractors was not timely under 49 P.S. § 1402(a) where it was filed after the contractor began work on the property, more than 10 days after the contractor and the property owner entered the principle construction contract, and only five days before the contractor and the subcontractor executed the subcon-tract. Therefore, the waiver of liens filed by the contractor was not timely and was not binding on a subcontractor that sought to enforce a mechanics' lien against the property for unpaid work. Hightec HVAC, Inc. v. Travelers Cas. & Sur. Co., 2005 Phila. Ct. Com. Pl. LEXIS 318 (July 15, 2005). 6. Preliminary objection in a mechanic's lien claim by a subcontractor was sustained, as the subcontractor may have waived its rights to file a claim under 49 P.S. § 1401(a)(2)(i) in a residential construction project, such that the require-ments of amended 49 P.S. § 1402 were satisfied; accordingly, a contractor's waiver of lien rights was valid and enforce-able against the subcontractor. Ken's Constr. of S. Jersey, Inc. v. Medeiros, 2009 Pa. Dist. & Cnty. Dec. LEXIS 268 (June 17, 2009).

49 P.S. § 1402

7. Alleged property owner's argument, that the trial court erred in determining that the alleged property owner had not filed an effective waiver of liens because the alleged property owner did not have title to the property when the waiver was filed, was itself waived as there was no evidence in the record about when the buy and sell agreement, which might have indicated ownership, was executed, and thus no indication that the alleged property owner actually owned the property at the time the waiver was filed. Phila. Constr. Servs., LLC v. Domb, LLC, 2006 PA Super 184, 903 A.2d 1262, 2006 Pa. Super. LEXIS 1640 (Pa. Super. Ct. 2006). 8. Preliminary objection in a mechanic's lien claim by a subcontractor was sustained, as the subcontractor may have waived its rights to file a claim under 49 P.S. § 1401(a)(2)(i) in a residential construction project, such that the require-ments of amended 49 P.S. § 1402 were satisfied; accordingly, a contractor's waiver of lien rights was valid and enforce-able against the subcontractor. Ken's Constr. of S. Jersey, Inc. v. Medeiros, 2009 Pa. Dist. & Cnty. Dec. LEXIS 268 (June 17, 2009). 9. In a subcontractor's appeal of a trial court decision that sustained the preliminary objections filed by the homeowners and struck the mechanics' lien claim filed by the subcontractor, an appellate court determined that the trial court proper-ly sustained the preliminary objections and struck the lien claim because a stipulation of waiver of liens had been filed with the prothonotary before the subcontractor began work on the homeowners' residence, thus, the subcontractor was on constructive notice of the waiver before it began work on the home. The trial court was found to have prudently sought to review the original stipulation of waiver of liens and properly took judicial notice of it prior to sustaining the homeowners' preliminary objections. Floors, Inc. v. Altig, 2009 PA Super 2, 963 A.2d 912, 2009 Pa. Super. LEXIS 3 (Pa. Super. Ct. 2009), appeal denied by 602 Pa. 667, 980 A.2d 608, 2009 Pa. LEXIS 2089 (2009). 10. Although a subcontractor's mechanic's lien claim was timely under 49 P.S. § 1502(a)(2), it was equitably estopped under 49 P.S. § 1402(a)(2)(i) from collecting from the owners because, despite knowing of the general contractor's fi-nancial distress, the subcontractor made no attempt to serve a notice of its lien until after owners closed on the property; this conduct disavailed the owners from asserting their remedy under 49 P.S. § 1601 and placed them at a considerable disadvantage. Had the owners known of the financial condition of the general contractor they would have been able to withhold monies from the general contractor and avoid the lien. Kelly Sys. v. Koda, 2008 Pa. Dist. & Cnty. Dec. LEXIS 250 (Aug. 31, 2008). 11. Building material supplier successfully resisted a claim by a Chapter 7 trustee for a general contractor that owed the supplier almost $50,000 that the supplier's mechanics lien was invalid and unenforceable per 49 Pa. Stat. Ann. § 1402 because there was no showing that the claimant had actual notice of the filing of a lien waiver prior to the date on which it first delivered materials to the jobsite, which constituted the "commencement" of work for purposes of § 1402, or that the other three statutory prerequisites had been satisfied. B & L Wholesale Supply, Inc. v. Watkins Builders, Inc. (In re Watkins Builders, Inc.), 381 B.R. 181, 2008 Bankr. LEXIS 278, 49 Bankr. Ct. Dec. (LRP) 125 (Bankr. W.D. Pa. 2008). 12. Contractor's waiver of liens for itself and all subcontractors was not timely under 49 P.S. § 1402(a) where it was filed after the contractor began work on the property, more than 10 days after the contractor and the property owner entered the principle construction contract, and only five days before the contractor and the subcontractor executed the subcontract. Therefore, the waiver of liens filed by the contractor was not timely and was not binding on a subcontractor that sought to enforce a mechanics' lien against the property for unpaid work. Hightec HVAC, Inc. v. Travelers Cas. & Sur. Co., 2005 Phila. Ct. Com. Pl. LEXIS 318 (July 15, 2005). 13. Requirements of 49 P.S. § 1402, which provides that a waiver of liens be indexed in the name of the contractor as defendant and the owner as plaintiff and also in the name of the contractor as plaintiff and the owner as defendant, was met by cross-indexing by name of owner and contractor; indexing by location was not necessary. Patrick McGuigan Roofing Co. v. Kallman, 405 Pa. Super. 586, 592 A.2d 1368, 1991 Pa. Super. LEXIS 1718 (1991). 14. Although a general contractor and a land owner in the county records, contractor as plaintiff and the land owner as defendant, 49 P.S. § 1402 also required the land owner to be listed as plaintiff and the contractor listed as defendant for a valid waiver of mechanic's lien. Site Improv., Inc. v. Central & Western Chester County Industrial Dev. Authority, 293 Pa. Super. 1, 437 A.2d 960, 1981 Pa. Super. LEXIS 3975 (1981).

49 P.S. § 1402

15. Pursuant to 49 P.S. § 1402, the subcontractor's lien was ineffective because the waivers of mechanics' liens were filed in the prothonotary's office prior to the commencement of work by the general contractor. Hill v. Edinboro Devel-opment, Inc., 278 Pa. Super. 324, 420 A.2d 562, 1980 Pa. Super. LEXIS 2523 (1980). 16. Agreement by a subcontractor to waive a mechanics' lien, obtained through the owner's fraud, could not be validly asserted to prevent the subcontractor from filing the lien claim. Stringert & Bowers, Inc. v. On-Line Systems, Inc., 236 Pa. Super. 196, 345 A.2d 194, 1975 Pa. Super. LEXIS 1696 (1975). TREATISES AND ANALYTICAL MATERIALS 1. 8 P.L.E., COMMERCIAL TRANSACTIONS § 104, Pennsylvania Law Encyclopedia, COMMERCIAL TRANSAC-TIONS, § 104. Mechanics' Liens and Liens for Wages, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 53, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 53. -- Rights of Subcontractors, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1403.Releaseaswaiver A release signed by the claimant shall not operate as a waiver of the right to file a claim for labor or materials subse-quently furnished, unless it shall appear thereby that such was the express intent of the party signing the same. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Taken from Section 15, Act of 1901, as amended 1903, April 24, P.L. 297, 49 P.S. 74. Omitted as unnecessary is the phrase "but such release shall be so construed as to carry out that intent." LexisNexis (R) Notes: TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 57, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 57. Release, Copy-right 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1404.Effectofcreditorcollateral The giving of credit or the receipt of evidence of indebtedness or collateral otherwise than as provided in section 303(e) shall not operate to waive the right to file a claim, but where credit is given, no voluntary proceedings shall be taken by the claimant to enforce the lien until the credit period has expired. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT

49 P.S. § 1404

Adapted from Section 15, Act of 1901, as amended 1903, April 24, P.L. 297, 49 P.S. 73. The addition of the words "re-ceipt of evidence of indebtedness" declares existing decisional law. LexisNexis (R) Notes: TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 54, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 54. Taking Securi-ty, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1405.Rightofownertolimitclaimstounpaidbalanceofcon‐tractprice Where the claims of subcontractors exceed in the aggregate the unpaid balance of the contract price specified in the contract between the owner and the contractor, then if the subcontractor has actual notice of the total amount of said contract price and of its provisions for the time or times for payment thereof before any labor or materials were fur-nished by him, or if such contract or the pertinent provisions thereof were filed in the office of the prothonotary in the time and manner provided in section 402, each claim shall, upon application of the owner, be limited to its pro-rata share of the contract price remaining unpaid, or which should have remained unpaid, whichever is greatest in amount at the time notice of intention to file a claim was first given to the owner, such notice inuring to the benefit of all claim-ants. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Taken from Sections 17 and 18, Act of 1901, 49 P.S. 76, 77. Omitted as unnecessary procedural detail are the provi-sions authorizing stay of execution, payment into court, etc., all of which the court can control under general equitable principles by general rule or special order. The provisions of Section 17, Act of 1901, for payment into court and discharge of lien are now found in Section 510 of this Act. HISTORY: Act 2006-52 (H.B. 1637), P.L. 210, § 3, approved June 29, 2006, eff. Jan. 1, 2007. NOTES: LexisNexis (R) Notes: Amendment Notes.--The 2006 amendment deleted "there has been no waiver of liens and" preceding "the claims of."

§1406.Rightofsubcontractortorescindafternoticeofcontractprovisions Any provisions of a contract between the owner and the contractor, which reduce or impair the rights and remedies of a subcontractor or which postpone the time for payment by the owner to the contractor for a period exceeding four (4) months after completion of the work, shall be grounds for recision by the subcontractor of his contract with the contrac-tor, unless such subcontractor was given actual notice thereof prior to the time of the making of his contract with the

49 P.S. § 1406

contractor, or the contract or the pertinent provisions thereof were filed in the office of the prothonotary in the time and manner provided by section 402. Such recision shall not impair the right of the subcontractor to recover by lien or oth-erwise for work completed prior thereto. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 19, Act of 1901, 49 P.S. 78. The provisions of Section 16, Act of 1901, 49 P.S. 75, giving the subcontractor a right to rescind where the contract between the owner and contractor provide for payment in other than legal tender are omitted as unnecessary in view of the general language of this section. In the rare case where payment is to be made in other than legal tender and there has been no recision, the court will adjudicate the right of the parties upon equitable principles. It was deemed unnecessary to specifically declare this practice.

§1407.Contractsnotmadeingoodfaith;effect A contract for the improvement made by the owner with one not intended in good faith to be a contractor shall have no legal effect except as between the parties thereto, even though written, signed and filed as provided herein, but such contractor, as to third parties, shall be treated as the agent of the owner. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Taken from Section 5, Act of 1901, 49 P.S. 29, with the exception that the word "improvement" is substituted for "structure or other improvement." No change in the law is intended since definition Section 201(1) defines "improve-ment" to include the structure.

§1501.Formalnoticebysubcontractorasconditionprecedent (a), (b) Deleted by 2006, June 29, P.L. 210, No. 52, § 3, effective Jan. 1, 2007. (B.1) TIME PERIOD OF FORMAL NOTICE. No claim by a subcontractor, whether for erection or construction or for alterations or repairs, shall be valid unless, at least thirty (30) days before the same is filed, he shall have given to the owner a formal written notice of his intention to file a claim, except that such notice shall not be required where the claim is filed pursuant to a rule to do so as provided by section 506 (c) CONTENTS OF FORMAL NOTICE. The formal notice shall state: (1) the name of the party claimant; (2) the name of the person with whom he contracted; (3) the amount claimed to be due; (4) the general nature and character of the labor or materials furnished; (5) the date of completion of the work for which his claim is made;

49 P.S. § 1501

(6) a brief description sufficient to identify the property claimed to be subject to the lien. (d) SERVICE OF NOTICE. The notice provided by this section may be served by first class, registered or certified mail on the owner or his agent or by an adult in the same manner as a writ of summons in assumpsit, or if service cannot be so made then by posting upon a conspicuous public part of the improvement. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT This section clarifies and continues the practice under Sections 2 and 8, Act of 1901 (Section 8 amended 1909, March 24, P.L. 65), 49 P.S. 23, 101, which required two separate notices by a subcontractor in claims for alterations and re-pairs and only one notice in claims for new construction. However, this section makes an important change by making the time for final notice uniform, abolishing the distinction between new construction and alterations and repairs in this respect. Subsection (c) conforms the contents of the formal notice to the required contents of the claim itself and to avoid dupli-cation of paper work it is expressly provided that the notice may consist of a copy of the claim intended to be filed. The service provisions of Sections 2 and 8, Act of 1901, 49 P.S. 23, 101, are clarified and codified by providing for ser-vice in the same manner as a writ of summons in assumpsit. HISTORY: Act 2006-52 (H.B. 1637), P.L. 210, § 3, approved June 29, 2006, eff. Jan. 1, 2007. NOTES: LexisNexis (R) Notes: Amendment Notes.--The 2006 amendment substituted "Formal Notice" for "Notices" in the section heading; deleted former (a); redesignated former (b) as (b.1); rewrote the subsection heading of (b.1), which formerly read: "Formal No-tice in All Cases by Subcontractor"; deleted former (c)(7), which read: "the date on which preliminary notice of inten-tion to file a claim was given where such notice is required by subsection (a) of this section, and a copy thereof. The notice may consist of a copy of the claim intended to be filed, together with a statement that the claimant intends to file the original or a counterpart thereof"; and made related and stylistic changes. CASE NOTES 1. Property owner's preliminary objections were sustained as to a mechanic's lien claim and complaint filed by a sub-contractor as the lien notice failed to state the date of completion, thus, it was insufficient under 49 P.S. § 1501, and a filed amended lien was not recognized to cure the defect. Additionally, the lien on its face made no attempt to satisfy 49 P.S. § 1503(3), (4), or (8) and, therefore, was defective in that regard as well. Leeward Constr. v. Scp 2007-c27-093 Llc, 2008 Pa. Dist. & Cnty. Dec. LEXIS 138 (Sept. 29, 2008). 2. Although the trial court erred as a matter of law in refusing to accept the subcontractor's averment that it had com-pleted the work, the error was harmless in light of the appellate court's finding that the subcontractor failed to properly perfect its lien. Phila. Constr. Servs., LLC v. Domb, LLC, 2006 PA Super 184, 903 A.2d 1262, 2006 Pa. Super. LEXIS 1640 (Pa. Super. Ct. 2006).

49 P.S. § 1501

3. Though defects to a subcontractor's mechanic's lien may be fatal, that does not leave it without a remedy as a mechanic's lien is an extraordinary remedy, which should only be afforded to subcontractors who judiciously adhere to the requirements of the law, and an aggrieved subcontractor also has an action sounding in breech of contract. Leeward Constr. v. Scp 2007-c27-093 Llc, 2008 Pa. Dist. & Cnty. Dec. LEXIS 138 (Sept. 29, 2008). 4. As the extensive demolition and construction work performed by subcontractors was an adaptation of an existing building which rendered it fit for a new use and effected a material change in its interior, the project was "erection and construction" under 49 P.S. Ann. § 1201(10), not "alterations and repairs" under § 1201(11). Accordingly, the subcon-tractors were not required to provide preliminary notice of their liens under 49 P.S. § 1501(a) and could recover the full amount of their claims. Wyatt Inc. v. Citizens Bank of Pa., 2006 Pa. Dist. & Cnty. Dec. LEXIS 386 (Oct. 4, 2006). 5. Subcontractors who performed work for the lessee as its leasehold in a high-rise office building did not have to serve preliminary notice of their intent to seek mechanics' lien claims before completing their work at the premises. The sub-contractors were engaged in 49 P.S. § 1201(10) erection and construction work, and, thus, the requirement of sending preliminary notice under 49 P.S. § 1501 did not apply, which meant the subcontractors had valid lien claims pursuant to 49 P.S. § 1301 to seek unpaid invoice amounts. Wyatt Inc. v. Citizens Bank of Pa., 2009 PA Super 107, 976 A.2d 557, 2009 Pa. Super. LEXIS 1008 (Pa. Super. Ct. 2009). 6. Subcontractors who performed work for the lessee as its leasehold in a high-rise office building did not have to serve preliminary notice of their intent to seek mechanics' lien claims before completing their work at the premises. The sub-contractors were engaged in 49 P.S. § 1201(10) erection and construction work, and, thus, the requirement of sending preliminary notice under 49 P.S. § 1501 did not apply, which meant the subcontractors had valid lien claims pursuant to 49 P.S. § 1301 to seek unpaid invoice amounts. Wyatt Inc. v. Citizens Bank of Pa., 2009 PA Super 107, 976 A.2d 557, 2009 Pa. Super. LEXIS 1008 (Pa. Super. Ct. 2009). 7. Property owner's preliminary objections were sustained as to a mechanic's lien claim and complaint filed by a sub-contractor as the lien notice failed to state the date of completion, thus, it was insufficient under 49 P.S. § 1501, and a filed amended lien was not recognized to cure the defect. Additionally, the lien on its face made no attempt to satisfy 49 P.S. § 1503(3), (4), or (8) and, therefore, was defective in that regard as well. Leeward Constr. v. Scp 2007-c27-093 Llc, 2008 Pa. Dist. & Cnty. Dec. LEXIS 138 (Sept. 29, 2008). 8. Though defects to a subcontractor's mechanic's lien may be fatal, that does not leave it without a remedy as a mechanic's lien is an extraordinary remedy, which should only be afforded to subcontractors who judiciously adhere to the requirements of the law, and an aggrieved subcontractor also has an action sounding in breech of contract. Leeward Constr. v. Scp 2007-c27-093 Llc, 2008 Pa. Dist. & Cnty. Dec. LEXIS 138 (Sept. 29, 2008). 9. Although the trial court erred as a matter of law in refusing to accept the subcontractor's averment that it had com-pleted the work, the error was harmless in light of the appellate court's finding that the subcontractor failed to properly perfect its lien. Phila. Constr. Servs., LLC v. Domb, LLC, 2006 PA Super 184, 903 A.2d 1262, 2006 Pa. Super. LEXIS 1640 (Pa. Super. Ct. 2006). 10. Trial court properly dismissed a subcontractor's action seeking to foreclose a mechanic's lien, because the work per-formed by the subcontractor was alteration and repair work as defined by 49 P.S. § 1201(11), and the subcontractor failed to provided the notice to the owners required by 49 P.S. § 1501. Wentzel-Applewood Joint Venture v. 801 Mkt. St. Assocs., LP, 2005 PA Super 239, 878 A.2d 889, 2005 Pa. Super. LEXIS 1573 (Pa. Super. Ct. 2005), appeal denied by 587 Pa. 707, 897 A.2d 1184, 2006 Pa. LEXIS 441 (2006). 11. Where a mechanics' lien was being asserted based on an alteration or repair of an existing improvement, the me-chanics' lien claimant needed to notify the owner of its intent to pursue the mechanics' lien claim before completion of

49 P.S. § 1501

the work since an addition of a sign to an existing building was an alteration, and notice of the intent to enforce a me-chanics' lien was required before the completion of the work, and the trial court's dismissal of a subcontractor's mechan-ics' lien claim was affirmed where the subcontractor failed to provide timely notice to the property owner. City Lighting Prods. Co. v. Carnegie Inst., 2003 PA Super 45, 816 A.2d 1196, 2003 Pa. Super. LEXIS 120 (Pa. Super. Ct. 2003). 12. Subcontractor's claim for a mechanics' lien against a property owner was struck because the subcontractor failed to comply with the notice requirements of the Mechanics' Lien Law, 49 P.S. §§ 1501, § 1201(1), (10), and (11), in that the subcontractor placed a sign on the roof of the property owner's building, the sign was not the construction or erection of an improvement, the placement was the alteration or repair of an existing improvements, and the subcontractor was re-quired to inform the owner of the subcontractor's intent to pursue a lien before the completion of the project. City Light-ing Prods. Co. v. Carnegie Inst., 2003 PA Super 45, 816 A.2d 1196, 2003 Pa. Super. LEXIS 120 (Pa. Super. Ct. 2003). 13. Pleading a dual characterization as both a contractor and subcontractor under the Mechanics' Lien Law at 49 P.S. § 1501 et seq., did not defeat the acquisition of the sought-after lien; there was no prohibition against alternative pleadings as subcontractor and contractor under the mechanics' lien law or Pa. R. Civ. P. 1020, and the contractor's complaint did not lack requisite specificity and should not have been dismissed on this basis. Denlinger, Inc. v. Agresta, 714 A.2d 1048, 1998 Pa. Super. LEXIS 840 (Pa. Super. Ct. 1998). 14. Supplier's mechanics' lien claim had to be stricken, where the supplier neglected to provide the owner with notice of intent to file a claim as required by 49 P.S. § 1501, although the supplier served notice on the contractor. B&B Builders v. TCR Byberry Creek Ltd. Partnership, 27 Phila. 556, 1994 Phila. Cty. Rptr. LEXIS 52 (Pa. C.P., Orphans' Ct. Div. 1994), affirmed without opinion by 442 Pa. Super. 638, 659 A.2d 1, 1995 Pa. Super. LEXIS 247 (1995). TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 13, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 13. Subcontractors, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 21, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 21. Notice of In-tention To File Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 3. 32 P.L.E., MECHANICS' LIENS § 22, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 22. -- Form and Requisites, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1502.Filingandnoticeoffilingofclaim (a) PERFECTION OF LIEN. To perfect a lien, every claimant must: (1) file a claim with the prothonotary as provided by this act within six (6) months after the completion of his work; and (2) serve written notice of such filing upon the owner within one (1) month after filing, giving the court, term and number and date of filing of the claim. An affidavit of service of notice, or the acceptance of service, shall be filed with-in twenty (20) days after service setting forth the date and manner of service. Failure to serve such notice or to file the affidavit or acceptance of service within the times specified shall be sufficient ground for striking off the claim. (b) VENUE; PROPERTY IN MORE THAN ONE COUNTY. Where the improvement is located in more than one county, the claim may be filed in any one or more of said counties, but shall be effective only as to the part of the prop-erty in the county in which it has been filed.

49 P.S. § 1502

(c) MANNER OF SERVICE. Service of the notice of filing of claim shall be made by an adult in the same manner as a writ of summons in assumpsit, or if service cannot be so made then by posting upon a conspicuous public part of the improvement. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Subsection (a).. Subsection (a)(1) provides a uniform fourmonth filing limitation for both new construction and altera-tions and repairs. Section 10, Act of 1901, 49 P.S. 52, provided as to alterations and repairs that a claim must be filed within three months after completion and as to new construction within six months. Subsection (a)(2) is taken from Section 21, Act of 1901, as amended 1917, April 5, P.L. 42, 49 P.S. 131. That section required the affidavit of service to be filed within the 30-day period allowed for service. Subsection (a)(2) provides that the affidavit of service can be filed within 20 days after service has been completed, thus allowing time for the prepara-tion of the affidavit where it is filed in the last few days of the 30-day period. The affidavit of service must be filed even though service is accepted. This follows prior decisional law. Day and Zim-merman, Inc. v. Blocked Iron Corp., 15 D. & C.2d 251, Aff. 394 Pa. 386 (1959), 147 A.2d 332. Subsection (b).. Subsection (b) is adapted from Section 11, Act of 1901, as amended 1905, April 17, P.L. 172, 49 P.S. 53. It clarifies the practice where an improvement is located in more than one county. Failure to file the lien in all coun-ties will not invalidate the claim but will restrict it only to those counties where filed. Subsection (c).. Subsection (c) conforms the manner of service to assumpsit. The provision for posting the premises is adapted from Section 21, Act of 1901, as amended 1917, April 5, P.L. 42, 49 P.S. 131. HISTORY: Act 2006-52 (H.B. 1637), P.L. 210, § 3, approved June 29, 2006, eff. Jan. 1, 2007. NOTES: LexisNexis (R) Notes: Amendment Notes.--The 2006 amendment substituted "six (6) months" for "four (4) months" in (a)(1). CASE NOTES 1. Creditor was denied relief from automatic stay under 11 U.S.C.S. § 362 because such relief was futile in that the cred-itor's lien would always be avoidable by the debtor under 11 U.S.C.S. § 545(2) where the involuntary Chapter 11 peti-tion was filed against the debtor five hours before the creditor filed his mechanic's lien obtained pursuant to 49 P.S. § 1301. The lien could never be perfected under 49 P.S. § 1502(a) so as to outrank the debtor's avoidance power, and the effect of 11 U.S.C.S. § 546(b)(1)(A) did not change the outcome because that provision only operated to subject the avoidance power to 49 P.S. § 1508(b), which again related to the time of filing. T.P. Elec., Inc. v. GGC, LLC (In re GGC, LLC), 329 B.R. 36, 2005 Bankr. LEXIS 1569, 45 Bankr. Ct. Dec. (LRP) 51 (Bankr. W.D. Pa. 2005). 2. In a Chapter 7 debtor's action to recover on a mechanics' lien against a hotel and the owner of a construction project for the hotel, the debtor failed to set forth specific facts showing that there was a genuine issue of fact as to whether its noncompletion of work was through no fault of its own, as was required by 49 Pa. Stat. Ann. § 1305 for the filing of a mechanics' lien despite noncompletion. Thus, the debtor was not entitled to the remedy of a mechanics' lien and had no right to recover on its claims. Cliffwood Elec. Contr., Inc. v. Century Gen. Constr., Inc. (In re Cliffwood Elec. Contr., Inc.), 415 B.R. 149, 2009 Bankr. LEXIS 3798 (Bankr. E.D. Pa. 2009).

49 P.S. § 1502

3. Although a subcontractor's mechanic's lien claim was timely under 49 P.S. § 1502(a)(2), it was equitably estopped under 49 P.S. § 1402(a)(2)(i) from collecting from the owners because, despite knowing of the general contractor's fi-nancial distress, the subcontractor made no attempt to serve a notice of its lien until after owners closed on the property; this conduct disavailed the owners from asserting their remedy under 49 P.S. § 1601 and placed them at a considerable disadvantage. Had the owners known of the financial condition of the general contractor they would have been able to withhold monies from the general contractor and avoid the lien. Kelly Sys. v. Koda, 2008 Pa. Dist. & Cnty. Dec. LEXIS 250 (Aug. 31, 2008). 4. A construction company which filed a mechanics' lien against the owners of a residence, properly served the owners under Pa. Stat. Ann. tit. 49, § 1502(c), by posting a notice of the claim on the owners' property, after the sheriff twice attempted and failed to personally serve the owners. Clemleddy Constr., Inc. v. Yorston, 2002 PA Super 342, 810 A.2d 693, 2002 Pa. Super. LEXIS 3219 (Pa. Super. Ct. 2002), appeal denied by 573 Pa. 682, 823 A.2d 143, 2003 Pa. LEXIS 881 (2003). 5. Even though the return of service was unsworn, the defendants received adequate notice of the mechanic's lien with the sheriff's return of service because it was in substantial compliance with the applicable statute. J.H. Hommer Lumber Co. v. Dively, 401 Pa. Super. 72, 584 A.2d 985, 1990 Pa. Super. LEXIS 3422 (1990). 6. Debtor's petition to strike a default judgment that was entered on a creditor's mechanic's lien was properly granted because the sheriff's return of service was the equivalent of affidavit of service and a return was not filed within 20 days of service as required by Pa. Stat. Ann. tit. 49, § 1502(a). Rees, Weaver & Co. v. M.B.C. Paper Mill Corp., 267 Pa. Su-per. 148, 406 A.2d 562, 1979 Pa. Super. LEXIS 2458 (1979). 7. Creditor was expressly permitted under the Pennsylvania Mechanics' Lien Law, 49 P.S. § 1502(c), to use posting as posting as an alternative method of service after the creditor established that personal service was not successfully effec-tuated based upon the language of Pa. R. Civ. P. 400(a) and 1001. Clemleddy Constr., Inc. v. Yorston, 2002 PA Super 342, 810 A.2d 693, 2002 Pa. Super. LEXIS 3219 (Pa. Super. Ct. 2002), appeal denied by 573 Pa. 682, 823 A.2d 143, 2003 Pa. LEXIS 881 (2003). 8. Trial court properly struck the corporation's mechanics' lien claim against the property owner because service was not achieved until after the one-month statutory time period in Pa. Stat. Ann. tit. 49, § 1502, and the doctrine of substantial compliance did not apply where there was a defect in the actual service of notice. Regency Invs. v. Inlander Ltd., 2004 PA Super 274, 855 A.2d 75, 2004 Pa. Super. LEXIS 2251 (Pa. Super. Ct. 2004), appeal denied by 581 Pa. 679, 863 A.2d 1148, 2004 Pa. LEXIS 3100 (2004). 9. Creditor was denied relief from automatic stay under 11 U.S.C.S. § 362 because such relief was futile in that the cred-itor's lien would always be avoidable by the debtor under 11 U.S.C.S. § 545(2) where the involuntary Chapter 11 peti-tion was filed against the debtor five hours before the creditor filed his mechanic's lien obtained pursuant to 49 P.S. § 1301. The lien could never be perfected under 49 P.S. § 1502(a) so as to outrank the debtor's avoidance power, and the effect of 11 U.S.C.S. § 546(b)(1)(A) did not change the outcome because that provision only operated to subject the avoidance power to 49 P.S. § 1508(b), which again related to the time of filing. T.P. Elec., Inc. v. GGC, LLC (In re GGC, LLC), 329 B.R. 36, 2005 Bankr. LEXIS 1569, 45 Bankr. Ct. Dec. (LRP) 51 (Bankr. W.D. Pa. 2005).

49 P.S. § 1502

10. Although the trial court erred as a matter of law in refusing to accept the subcontractor's averment that it had com-pleted the work, the error was harmless in light of the appellate court's finding that the subcontractor failed to properly perfect its lien; the subcontractor could not assert that it had filed a mechanics' lien within four months of the comple-tion of the work when it had already averred that it had walked off of the job without completing it because it believed that the general contractor was in breach of their subcontract agreement. Phila. Constr. Servs., LLC v. Domb, LLC, 2006 PA Super 184, 903 A.2d 1262, 2006 Pa. Super. LEXIS 1640 (Pa. Super. Ct. 2006). 11. In a Chapter 7 debtor's action to recover on a mechanics' lien against a hotel and the owner of a construction project for the hotel, the debtor failed to set forth specific facts showing that there was a genuine issue of fact as to whether its noncompletion of work was through no fault of its own, as was required by 49 Pa. Stat. Ann. § 1305 for the filing of a mechanics' lien despite noncompletion. Thus, the debtor was not entitled to the remedy of a mechanics' lien and had no right to recover on its claims. Cliffwood Elec. Contr., Inc. v. Century Gen. Constr., Inc. (In re Cliffwood Elec. Contr., Inc.), 415 B.R. 149, 2009 Bankr. LEXIS 3798 (Bankr. E.D. Pa. 2009). 12. Although a subcontractor's mechanic's lien claim was timely under 49 P.S. § 1502(a)(2), it was equitably estopped under 49 P.S. § 1402(a)(2)(i) from collecting from the owners because, despite knowing of the general contractor's fi-nancial distress, the subcontractor made no attempt to serve a notice of its lien until after owners closed on the property; this conduct disavailed the owners from asserting their remedy under 49 P.S. § 1601 and placed them at a considerable disadvantage. Had the owners known of the financial condition of the general contractor they would have been able to withhold monies from the general contractor and avoid the lien. Kelly Sys. v. Koda, 2008 Pa. Dist. & Cnty. Dec. LEXIS 250 (Aug. 31, 2008). 13. Although the trial court erred as a matter of law in refusing to accept the subcontractor's averment that it had com-pleted the work, the error was harmless in light of the appellate court's finding that the subcontractor failed to properly perfect its lien; the subcontractor could not assert that it had filed a mechanics' lien within four months of the comple-tion of the work when it had already averred that it had walked off of the job without completing it because it believed that the general contractor was in breach of their subcontract agreement. Phila. Constr. Servs., LLC v. Domb, LLC, 2006 PA Super 184, 903 A.2d 1262, 2006 Pa. Super. LEXIS 1640 (Pa. Super. Ct. 2006). 14. Creditor was denied relief from automatic stay under 11 U.S.C.S. § 362 because such relief was futile in that the creditor's lien would always be avoidable by the debtor under 11 U.S.C.S. § 545(2) where the involuntary Chapter 11 petition was filed against the debtor five hours before the creditor filed his mechanic's lien obtained pursuant to 49 P.S. § 1301. The lien could never be perfected under 49 P.S. § 1502(a) so as to outrank the debtor's avoidance power, and the effect of 11 U.S.C.S. § 546(b)(1)(A) did not change the outcome because that provision only operated to subject the avoidance power to 49 P.S. § 1508(b), which again related to the time of filing. T.P. Elec., Inc. v. GGC, LLC (In re GGC, LLC), 329 B.R. 36, 2005 Bankr. LEXIS 1569, 45 Bankr. Ct. Dec. (LRP) 51 (Bankr. W.D. Pa. 2005). 15. Trial court properly struck the corporation's mechanics' lien claim against the property owner because service was not achieved until after the one-month statutory time period in Pa. Stat. Ann. tit. 49, § 1502, and the doctrine of substan-tial compliance did not apply where there was a defect in the actual service of notice. Regency Invs. v. Inlander Ltd., 2004 PA Super 274, 855 A.2d 75, 2004 Pa. Super. LEXIS 2251 (Pa. Super. Ct. 2004), appeal denied by 581 Pa. 679, 863 A.2d 1148, 2004 Pa. LEXIS 3100 (2004). 16. A construction company which filed a mechanics' lien against the owners of a residence, properly served the owners under Pa. Stat. Ann. tit. 49, § 1502(c), by posting a notice of the claim on the owners' property, after the sheriff twice attempted and failed to personally serve the owners. Clemleddy Constr., Inc. v. Yorston, 2002 PA Super 342, 810 A.2d 693, 2002 Pa. Super. LEXIS 3219 (Pa. Super. Ct. 2002), appeal denied by 573 Pa. 682, 823 A.2d 143, 2003 Pa. LEXIS 881 (2003). 17. Pennsylvania Mechanics' Lien Law, 49 P.S. § 1502(c), required that service of a notice for filing a claim were to be made in person by a sheriff to the extent practicable based upon the language of Pa. R. Civ. P. 400(a) and 1001. Clem-

49 P.S. § 1502

leddy Constr., Inc. v. Yorston, 2002 PA Super 342, 810 A.2d 693, 2002 Pa. Super. LEXIS 3219 (Pa. Super. Ct. 2002), appeal denied by 573 Pa. 682, 823 A.2d 143, 2003 Pa. LEXIS 881 (2003). 18. Creditor was expressly permitted under the Pennsylvania Mechanics' Lien Law, 49 P.S. § 1502(c), to use posting as posting as an alternative method of service after the creditor established that personal service was not successfully effec-tuated based upon the language of Pa. R. Civ. P. 400(a) and 1001. Clemleddy Constr., Inc. v. Yorston, 2002 PA Super 342, 810 A.2d 693, 2002 Pa. Super. LEXIS 3219 (Pa. Super. Ct. 2002), appeal denied by 573 Pa. 682, 823 A.2d 143, 2003 Pa. LEXIS 881 (2003). 19. Debtor's petition to strike a default judgment that was entered on a creditor's mechanic's lien was properly granted because the sheriff's return of service was the equivalent of affidavit of service and a return was not filed within 20 days of service as required by Pa. Stat. Ann. tit. 49, § 1502(a). Rees, Weaver & Co. v. M.B.C. Paper Mill Corp., 267 Pa. Su-per. 148, 406 A.2d 562, 1979 Pa. Super. LEXIS 2458 (1979). 20. Contractor's mechanic's lien substantially complied with the terms of the Mechanics' Lien Law of 1963, 49 P.S. § 1101 et seq., because the information contained in the copies of the claim served on the property owners gave sufficient notice of the nature and the purpose of the claim. Tesauro v. Baird, 232 Pa. Super. 185, 335 A.2d 792, 1975 Pa. Super. LEXIS 1373 (1975). TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 21, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 21. Notice of In-tention To File Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 22, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 22. -- Form and Requisites, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 3. 32 P.L.E., MECHANICS' LIENS § 30, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 30. Filing Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 4. 32 P.L.E., MECHANICS' LIENS § 31, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 31. -- Time For Filing, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 5. 32 P.L.E., MECHANICS' LIENS § 32, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 32. -- Notice of Filing, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 6. 32 P.L.E., MECHANICS' LIENS § 35, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 35. Striking Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 7. 32 P.L.E., MECHANICS' LIENS § 55, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 55. Discharge, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 8. 32 P.L.E., MECHANICS' LIENS § 71, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 71. In General, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 9. 48 P.L.E., TIME § 23, Pennsylvania Law Encyclopedia, TIME, § 23. Inclusion or Exclusion in Computing Time, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

49 P.S. § 1503

§1503.Contentsofclaim The claim shall state: (1) the name of the party claimant, and whether he files as contractor or subcontractor; (2) the name and address of the owner or reputed owner; (3) the date of completion of the claimant's work; (4) if filed by a subcontractor, the name of the person with whom he contracted, and the dates on which preliminary notice, if required, and of formal notice of intention to file a claim was given; (5) if filed by a contractor under a contract or contracts for an agreed sum, an identification of the contract and a gen-eral statement of the kind and character of the labor or materials furnished; (6) in all other cases than that set forth in clause (5) of this section, a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof; (7) the amount or sum claimed to be due; and (8) such description of the improvement and of the property claimed to be subject to the lien as may be reasonably necessary to identify them. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 11, Act of 1901, as amended 1905, April 17, P.L. 172, 49 P.S. 53. The requisites of the contents of the claim have been enlarged and clarified. Clauses (4) and (5) of this section restore in part the averments required to be set forth by the Act of 1901 prior to its amendment by the Act of 1905, supra. The provision in clause (4) requiring the setting forth of the dates of the preliminary notice and of the formal notice of intention is new and was not required by the Act of 1901, as amended. See Hamilton v. Means, 155 Pa.Superior Ct. 245, 250 (1944), 38 A.2d 528. LexisNexis (R) Notes: CASE NOTES 1. In a Chapter 7 debtor's action to recover on a mechanics' lien against a hotel and the owner of a construction project for the hotel, the debtor failed to set forth specific facts showing that there was a genuine issue of fact as to whether its noncompletion of work was through no fault of its own, as was required by 49 Pa. Stat. Ann. § 1305 for the filing of a mechanics' lien despite noncompletion. Thus, the debtor was not entitled to the remedy of a mechanics' lien and had no right to recover on its claims. Cliffwood Elec. Contr., Inc. v. Century Gen. Constr., Inc. (In re Cliffwood Elec. Contr., Inc.), 415 B.R. 149, 2009 Bankr. LEXIS 3798 (Bankr. E.D. Pa. 2009). 2. Property owner's preliminary objections were sustained as to a mechanic's lien claim and complaint filed by a sub-contractor as the lien notice failed to state the date of completion, thus, it was insufficient under 49 P.S. § 1501, and a filed amended lien was not recognized to cure the defect. Additionally, the lien on its face made no attempt to satisfy 49

49 P.S. § 1503

P.S. § 1503(3), (4), or (8) and, therefore, was defective in that regard as well. Leeward Constr. v. Scp 2007-c27-093 Llc, 2008 Pa. Dist. & Cnty. Dec. LEXIS 138 (Sept. 29, 2008). 3. Though defects to a subcontractor's mechanic's lien may be fatal, that does not leave it without a remedy as a mechanic's lien is an extraordinary remedy, which should only be afforded to subcontractors who judiciously adhere to the requirements of the law, and an aggrieved subcontractor also has an action sounding in breech of contract. Leeward Constr. v. Scp 2007-c27-093 Llc, 2008 Pa. Dist. & Cnty. Dec. LEXIS 138 (Sept. 29, 2008). 4. Customer's preliminary objections to a mechanic's lien were sustained, as the correct owner of the property was not listed, there was no adequate description of the improvements and of the property, and the claims were not separated, as required by 49 P.S. §§ 1503 and 1306(b) of the Pennsylvania Mechanic's Lien Law; judicial notice pursuant to Pa. R. Evid. 201(b) was taken of a document purporting to list the record owner of the property. Penstan Supply Div. of Hajoca Corp. v. Traditions of Am., L.P., 2010 Pa. Dist. & Cnty. Dec. LEXIS 2 (Jan. 7, 2010). 5. Preliminary objection in a mechanic's lien claim by a subcontractor was overruled, as a factual issue that was appro-priate for determination by a jury was raised as to whether a subcontractor's mechanic's lien appropriately described the property. Ken's Constr. of S. Jersey, Inc. v. Medeiros, 2009 Pa. Dist. & Cnty. Dec. LEXIS 268 (June 17, 2009). 6. Customer's preliminary objections to a mechanic's lien were sustained, as the correct owner of the property was not listed, there was no adequate description of the improvements and of the property, and the claims were not separated, as required by 49 P.S. §§ 1503 and 1306(b) of the Pennsylvania Mechanic's Lien Law; judicial notice pursuant to Pa. R. Evid. 201(b) was taken of a document purporting to list the record owner of the property. Penstan Supply Div. of Hajoca Corp. v. Traditions of Am., L.P., 2010 Pa. Dist. & Cnty. Dec. LEXIS 2 (Jan. 7, 2010). 7. In a Chapter 7 debtor's action to recover on a mechanics' lien against a hotel and the owner of a construction project for the hotel, the debtor failed to set forth specific facts showing that there was a genuine issue of fact as to whether its noncompletion of work was through no fault of its own, as was required by 49 Pa. Stat. Ann. § 1305 for the filing of a mechanics' lien despite noncompletion. Thus, the debtor was not entitled to the remedy of a mechanics' lien and had no right to recover on its claims. Cliffwood Elec. Contr., Inc. v. Century Gen. Constr., Inc. (In re Cliffwood Elec. Contr., Inc.), 415 B.R. 149, 2009 Bankr. LEXIS 3798 (Bankr. E.D. Pa. 2009). 8. Preliminary objection in a mechanic's lien claim by a subcontractor was overruled, as a factual issue that was appro-priate for determination by a jury was raised as to whether a subcontractor's mechanic's lien appropriately described the property. Ken's Constr. of S. Jersey, Inc. v. Medeiros, 2009 Pa. Dist. & Cnty. Dec. LEXIS 268 (June 17, 2009). 9. Property owner's preliminary objections were sustained as to a mechanic's lien claim and complaint filed by a sub-contractor as the lien notice failed to state the date of completion, thus, it was insufficient under 49 P.S. § 1501, and a filed amended lien was not recognized to cure the defect. Additionally, the lien on its face made no attempt to satisfy 49 P.S. § 1503(3), (4), or (8) and, therefore, was defective in that regard as well. Leeward Constr. v. Scp 2007-c27-093 Llc, 2008 Pa. Dist. & Cnty. Dec. LEXIS 138 (Sept. 29, 2008). 10. Though defects to a subcontractor's mechanic's lien may be fatal, that does not leave it without a remedy as a mechanic's lien is an extraordinary remedy, which should only be afforded to subcontractors who judiciously adhere to the requirements of the law, and an aggrieved subcontractor also has an action sounding in breech of contract. Leeward Constr. v. Scp 2007-c27-093 Llc, 2008 Pa. Dist. & Cnty. Dec. LEXIS 138 (Sept. 29, 2008).

49 P.S. § 1503

11. Under 49 P.S. § 1503 and Pa. R. Civ. P. 1656, a plaintiff's claim to enforce a mechanic's lien was insufficiently pleaded because the plaintiff failed to identify the type of labor provided or the materials that were furnished. Washing-ton Eng'g & Constr. Co. v. Nitrochem L.L.C., 58 Pa. D. & C.4th 195, 2002 Pa. Dist. & Cnty. Dec. LEXIS 203 (2002). 12. Trial court erred in striking contractor's mechanics' lien claim where contractor was in substantial compliance with 49 P.S. § 1503(5) because there was no express statutory prohibition to alternative characterization of an entity as both a contractor and subcontractor, and because substantial compliance was sufficient; the contractor was named as the party claimant in the mechanics' lien claim, having identified itself as a contractor with respect to the owners of the property and as a subcontractor with respect to the construction company of which the property owner was a corporate officer, and included the name and address of the owner of the property and of the construction company which the owner al-legedly represented, the name of the person with whom the contractor had contracted, the date on which formal notice of intention to file a claim was provided, a general statement of the kind and character of the labor or materials fur-nished and the prices charged for each thereof, the amount or sum claimed to be due, and a description of the improve-ment and of the property claimed to be subjected to the lien. Denlinger, Inc. v. Agresta, 714 A.2d 1048, 1998 Pa. Super. LEXIS 840 (Pa. Super. Ct. 1998). 13. Subcontractor's lien was invalid against a purchaser of the property upon which a subcontractor's work was com-pleted because the lien filing did not include the name and address of the present or former owner as required by the Mechanics' Lien Law (Law), 49 P.S. § 1503(3), and was not entered in the prothonotary's judgment index as well as the mechanics' lien index as required by 49 P.S. § 1507 of the Law. Delmont Mech. Servs. v. Kenver Corp., 450 Pa. Super. 666, 677 A.2d 1241, 1996 Pa. Super. LEXIS 1952 (1996). 14. Pursuant to 49 P.S. § 1503, the court had to strike a supplier's mechanic's lien claim, where the supplier did not state in detail the basis for the amount allegedly owed. B&B Builders v. TCR Byberry Creek Ltd. Partnership, 27 Phila. 556, 1994 Phila. Cty. Rptr. LEXIS 52 (Pa. C.P., Orphans' Ct. Div. 1994), affirmed without opinion by 442 Pa. Super. 638, 659 A.2d 1, 1995 Pa. Super. LEXIS 247 (1995). 15. Construction company's mechanic's lien was invalid because it did not aver to an agreed upon sum as required by 49 P.S. § 1503(5). Flick Constr., Inc. v. Dyke, 401 Pa. Super. 168, 584 A.2d 1033, 1991 Pa. Super. LEXIS 21 (1991). 16. Contractor was entitled to amounts orally agreed to with a homeowner which totalled more than the amount stated in the contractor's mechanic's lien because under 49 P.S. §§ 1201, 1301 & 1503 of the mechanic's lien law, where the homeowner had paid partial amounts in excess of the lien amount by agreement of the parties, the lien for the balance of the services provided by the contractor may be collected: the purpose of the mechanic's lien law is to provide security for the performance of a contractor's services. Nowicki Constr. Co. v. Panar Corp., N.V., 342 Pa. Super. 8, 492 A.2d 36, 1985 Pa. Super. LEXIS 7253 (1985). 17. Under the Mechanic's Lien Law, 49 P.S. § 1503(6), a claim for a mechanic's lien had to state an identification of the contract and a general statement of the kind and character of the labor or materials furnished. Fisher Sprinkler Co. v. Ide, 305 Pa. Super. 554, 451 A.2d 1015, 1982 Pa. Super. LEXIS 5436 (1982). TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 24, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 24. Contents of Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 25, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 25. -- Description of Parties, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 3. 32 P.L.E., MECHANICS' LIENS § 26, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 26. -- Description of Work or Materials; Itemization, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

49 P.S. § 1503

4. 32 P.L.E., MECHANICS' LIENS § 27, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 27. -- Time of Completion, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 5. 32 P.L.E., MECHANICS' LIENS § 28, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 28. -- Description of Improvement, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 6. 32 P.L.E., MECHANICS' LIENS § 29, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 29. -- Description of Property, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1504.Amendmentofclaim A claim may be amended from time to time without prejudice to intervening rights by agreement of the parties or by leave of court, except that no amendment shall be permitted after the time for filing a claim has expired which under-takes to: (1) substitute a different property than that described in the claim; or (2) substitute a different party with whom the claimant contracted; or (3) increase the aggregate amount of the claim. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 51, Act of 1901, 49 P.S. 243. Clause (3) is new and is added to make clear that so long as the total amount of the claim is not increased, amendments which change itemizations or break down lump sums are per-missible. The decisional law was in conflict on this point. The omission of the words "entirely" before "different property" and "wholly" before "different party" which appeared in the Act of 1901 are not intended to change prior decisional law. These words were considered unnecessary and the omissions are purely stylistic. LexisNexis (R) Notes: CASE NOTES 1. Supplier's amended mechanics' lien claim had to be stricken where the supplier failed to comply with the statutory requirements of 49 P.S. § 1504 by not receiving leave of court or agreement of the parties. B&B Builders v. TCR Byber-ry Creek Ltd. Partnership, 27 Phila. 556, 1994 Phila. Cty. Rptr. LEXIS 52 (Pa. C.P., Orphans' Ct. Div. 1994), affirmed without opinion by 442 Pa. Super. 638, 659 A.2d 1, 1995 Pa. Super. LEXIS 247 (1995). TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 34, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 34. Amendment of Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

49 P.S. § 1504

2. 32 P.L.E., MECHANICS' LIENS § 75, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 75. Pleading, Cop-yright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1505.Procedureforcontestingclaim;preliminaryobjections Any 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. The court shall determine all preliminary objections. If an issue of fact is raised in such objections, the court may take evidence by deposition or otherwise. If the filing of an amended claim is allowed, the court shall fix the time within which it shall be filed. Failure to file an objection preliminarily shall not constitute a waiver of the right to raise the same as a defense in subsequent proceedings. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT This section modifies prior practice under Section 25, Act of 1901, 49 P.S. 135, by separating preliminary objections from trial on the merits, as in assumpsit. However, unlike assumpsit, failure to file preliminary objections is not a bar to raising them as a subsequent defense. Prior practice provided for a rule on claimant to discharge the claim and expressly provided that if "the material facts" are disputed, they shall be tried by jury without further pleadings, as if a sci. fa. to reduce the claim to judgment had been filed. LexisNexis (R) Notes: CASE NOTES 1. Trial court properly sustained preliminary objections by property owners to a subcontractor's action to foreclose a mechanic's lien without conducting a hearing, as nothing in 49 P.S. § 1505, which permitted objections to liens, re-quired a trial court to either hold a hearing or to solicit depositions. Wentzel-Applewood Joint Venture v. 801 Mkt. St. Assocs., LP, 2005 PA Super 239, 878 A.2d 889, 2005 Pa. Super. LEXIS 1573 (Pa. Super. Ct. 2005), appeal denied by 587 Pa. 707, 897 A.2d 1184, 2006 Pa. LEXIS 441 (2006). 2. If an issue of fact is raised in preliminary objections to a complaint, the trial court may take evidence by deposition or otherwise as set forth in 49 P.S. § 1505 of the mechanics' Lien law, 49 P.S. § 1101 et seq.; however, nothing in § 1505 requires a trial court to supplement the pleadings once a defendant files preliminary objections by either holding a hear-ing or soliciting depositions. Mele Constr. Co. v. Crown Am. Corp., 421 Pa. Super. 569, 618 A.2d 956, 1992 Pa. Super. LEXIS 4011 (1992), appeal denied by 536 Pa. 627, 637 A.2d 288 (1994). 3. On its face 49 P.S. § 1505 was simply not limited to those categories of exemption or immunities delineated by 49 P.S. § 1303, which expressly disallows mechanics liens in certain cases, as was proposed by a landowner; absent com-pelling authority requiring the adoption of such interpretation of the Mechanics' Lien Law, 49 P.S. § 1101 et seq., the appellate court declined to go against the plain language of 49 P.S. § 1505 which permitted preliminary objections to be filed by any party who could demonstrate that the property in question was subject to some type of exemption or im-munity from lien. Mele Constr. Co. v. Crown Am. Corp., 421 Pa. Super. 569, 618 A.2d 956, 1992 Pa. Super. LEXIS 4011 (1992), appeal denied by 536 Pa. 627, 637 A.2d 288 (1994).

49 P.S. § 1505

4. Where the contract which contained a waiver of liens provisions had been made a part of the record, the waiver of liens issue could be raised by preliminary objections according to 49 P.S. § 1505. Q-Dot, Inc. v. Atlantic City Electric Co., 289 Pa. Super. 155, 432 A.2d 1098, 1981 Pa. Super. LEXIS 3082 (1981). 5. Trial court properly sustained preliminary objections by property owners to a subcontractor's action to foreclose a mechanic's lien without conducting a hearing, as nothing in 49 P.S. § 1505, which permitted objections to liens, re-quired a trial court to either hold a hearing or to solicit depositions. Wentzel-Applewood Joint Venture v. 801 Mkt. St. Assocs., LP, 2005 PA Super 239, 878 A.2d 889, 2005 Pa. Super. LEXIS 1573 (Pa. Super. Ct. 2005), appeal denied by 587 Pa. 707, 897 A.2d 1184, 2006 Pa. LEXIS 441 (2006). 6. If an issue of fact is raised in preliminary objections to a complaint, the trial court may take evidence by deposition or otherwise as set forth in 49 P.S. § 1505 of the mechanics' Lien law, 49 P.S. § 1101 et seq.; however, nothing in § 1505 requires a trial court to supplement the pleadings once a defendant files preliminary objections by either holding a hear-ing or soliciting depositions. Mele Constr. Co. v. Crown Am. Corp., 421 Pa. Super. 569, 618 A.2d 956, 1992 Pa. Super. LEXIS 4011 (1992), appeal denied by 536 Pa. 627, 637 A.2d 288 (1994). 7. On its face 49 P.S. § 1505 was simply not limited to those categories of exemption or immunities delineated by 49 P.S. § 1303, which expressly disallows mechanics liens in certain cases, as was proposed by a landowner; absent com-pelling authority requiring the adoption of such interpretation of the Mechanics' Lien Law, 49 P.S. § 1101 et seq., the appellate court declined to go against the plain language of 49 P.S. § 1505 which permitted preliminary objections to be filed by any party who could demonstrate that the property in question was subject to some type of exemption or im-munity from lien. Mele Constr. Co. v. Crown Am. Corp., 421 Pa. Super. 569, 618 A.2d 956, 1992 Pa. Super. LEXIS 4011 (1992), appeal denied by 536 Pa. 627, 637 A.2d 288 (1994). 8. Where a subcontractor contracted with a general contractor to furnish and install wallboard upon certain premises, pursuant to the Mechanics' Lien Law of 1963, 49 P.S. § 1505, the subcontractor's mechanics lien was improperly strick-en by the trial court without giving the subcontractor an opportunity to prove his various allegations concerning validity, enforceability and applicability of the waiver provision of a mechanics' liens. John B. Kelly, Inc. v. Phoenix Plaza, Inc., 249 Pa. Super. 413, 378 A.2d 363, 1977 Pa. Super. LEXIS 2554 (1977). TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 72, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 72. Procedure for Contesting Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1506.Ruletofileclaim (a) Entry of rule; effect. At any time after the completion of the work by a subcontractor, any owner or contractor may file a rule or rules, as of course, in the court in which said claim may be filed; requiring the party named therein to file his claim within thirty (30) days after notice of said rule or be forever barred from so doing. The rule shall be entered by the prothonotary upon the judgment index and in the mechanics' lien docket. Failure to file a claim within the time spec-ified shall operate to wholly defeat the right to do so. If a claim be filed, it shall be entered as of the court, term and number of the rule to file the same. (b) Effect of claim filed by subcontractor. Where a claim is filed by a subcontractor in response to such rule, the own-er may give written notice thereof to the contractor in the manner set forth by section 602 of this act, and upon the giv-ing of such notice the owner may avail himself of the remedies provided by sections 601 and 604 of this act and the contractor shall be subject to the duties set forth by section 603 of this act.

49 P.S. § 1506

NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 7, Act of 1901, 49 P.S. 51. The duties of the contractor and the remedies of the owner upon the filing of the claim are governed by Section 601, et seq., infra. The time for filing the claim in response to the rule has been extended from 15 to 30 days. Although the contractor is given the right to file a rule, neither the Act of 1901, su-pra, nor this act require the claimant to serve a copy of the claim on the contractor, but only on the owner who then gives notice to the contractor under Section 602 of this act. LexisNexis (R) Notes: TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 21, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 21. Notice of In-tention To File Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 30, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 30. Filing Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1507.Indexingclaims,etcetera The prothonotary shall enter the claim, verdict and judgment upon the judgment index and mechanics' lien docket against the owner. When a claim, verdict or judgment is stricken, reversed or satisfied, or the name of a defendant is stricken, or an action upon the claim to reduce it to judgment is discontinued, or judgment is entered thereon in favor of the defendant, a note shall be made on the judgment index. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Taken from Section 43, Act of 1901, 49 P.S. 241. Omitted, however, is the exception that there was to be no indexing of the judgment "in an appealable matter until after the expiration of the time for appeal." It is intended that the index re-flect the actual state of the record and interested parties be on notice that a judgment is appealable within the statutory time provided for appeal. LexisNexis (R) Notes: CASE NOTES 1. Subcontractor's lien was invalid against a purchaser of the property upon which a subcontractor's work was complet-ed because the lien filing did not include the name and address of the present or former owner as required by the Me-chanics' Lien Law (Law), 49 P.S. § 1503(3), and was not entered in the prothonotary's judgment index as well as the mechanics' lien index as required by 49 P.S. § 1507 of the Law. Delmont Mech. Servs. v. Kenver Corp., 450 Pa. Super. 666, 677 A.2d 1241, 1996 Pa. Super. LEXIS 1952 (1996).

49 P.S. § 1507

TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 30, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 30. Filing Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1508.Priorityoflien The lien of a claim filed under this act shall take effect and have priority as follows: (a) Except as set forth in subsection (c), in the case of the erection or construction of an improvement, as of the date of the visible commencement upon the ground of the work of erecting or constructing the improvement. (b) Except as set forth in subsection (c), in the case of the alteration or repair of an improvement, as of the date of the filing of the claim. (c) Any lien obtained under this act by a contractor or subcontractor shall be subordinate to the following: (1) A purchase money mortgage as defined in 42 Pa.C.S. § 8141(1) (relating to time from which liens have priority). (2) An open-end mortgage as defined in 42 Pa.C.S. § 8143(f) (relating to open-end mortgages), the proceeds of which are used to pay all or part of the cost of completing erection, construction, alteration or repair of the mortgaged premises secured by the open-end mortgage. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Taken from Section 13, Act of 1901, 49 P.S. 203, Supp. The word "improvement" is substituted for "structure or im-provement" since the definition of "improvement" in Section 201(1) includes structure. Reference to the order of priority of tax and municipal claims contained in Section 13 is omitted as unnecessary since now governed by existing law. The provision of Section 13 of the Act of 1901 giving mechanics' liens priority over advance money mortgages was declared unconstitutional in Page v. Carr, 232 Pa. 371 (1911), 81 A. 430 and is therefore omitted. HISTORY: Act 2006-52 (H.B. 1637), P.L. 210, § 3, approved June 29, 2006, eff. Jan. 1, 2007. NOTES: LexisNexis (R) Notes: Amendment Notes.--The 2006 amendment added "as follows" in the introductory language; added "Except as set forth in subsection (c)" in (a) and (b); added (c); and made related and stylistic changes. CASE NOTES 1. Creditor was denied relief from automatic stay under 11 U.S.C.S. § 362 because such relief was futile in that the cred-itor's lien would always be avoidable by the debtor under 11 U.S.C.S. § 545(2) where the involuntary Chapter 11 peti-tion was filed against the debtor five hours before the creditor filed his mechanic's lien obtained pursuant to 49 P.S. § 1301. The lien could never be perfected under 49 P.S. § 1502(a) so as to outrank the debtor's avoidance power, and the

49 P.S. § 1508

effect of 11 U.S.C.S. § 546(b)(1)(A) did not change the outcome because that provision only operated to subject the avoidance power to 49 P.S. § 1508(b), which again related to the time of filing. T.P. Elec., Inc. v. GGC, LLC (In re GGC, LLC), 329 B.R. 36, 2005 Bankr. LEXIS 1569, 45 Bankr. Ct. Dec. (LRP) 51 (Bankr. W.D. Pa. 2005). 2. Creditor was denied relief from automatic stay under 11 U.S.C.S. § 362 because such relief was futile in that the cred-itor's lien would always be avoidable by the debtor under 11 U.S.C.S. § 545(2) where the involuntary Chapter 11 peti-tion was filed against the debtor five hours before the creditor filed his mechanic's lien obtained pursuant to 49 P.S. § 1301. The lien could never be perfected under 49 P.S. § 1502(a) so as to outrank the debtor's avoidance power, and the effect of 11 U.S.C.S. § 546(b)(1)(A) did not change the outcome because that provision only operated to subject the avoidance power to 49 P.S. § 1508(b), which again related to the time of filing. T.P. Elec., Inc. v. GGC, LLC (In re GGC, LLC), 329 B.R. 36, 2005 Bankr. LEXIS 1569, 45 Bankr. Ct. Dec. (LRP) 51 (Bankr. W.D. Pa. 2005). 3. Trial court properly struck a subcontractor's mechanics' lien against a pump station and sustained the preliminary objections of the general contractor and a township's municipal sanitary authority, as the pump project for which the subcontractor provided labor and materials for was a project involving a public purpose for which a lien could not valid-ly attach. Cornerstone Land Dev. Co. of Pittsburgh LLC v. Wadwell Group, 2008 PA Super 256, 959 A.2d 1264, 2008 Pa. Super. LEXIS 3507 (Pa. Super. Ct. 2008). 4. Work performed by a developer to install infrastructure for subdivision was not an erection or construction of im-provement within the meaning of the Mechanics' Lien Law, 49 Pa. Stat. § 1508(a), because it was not performed as part of a continuous scheme to construct a home; because improvement meant building a permanent structure, pursuant to 49 Pa. Stat. § 1201(1), installing sewer lines and ensuring stability of the soil could not be classified as a building or a permanent structure. Dollar Bank, FSB v. EM2 Dev. Corp., 716 A.2d 671, 1998 Pa. Super. LEXIS 1929 (Pa. Super. Ct. 1998), appeal denied by 558 Pa. 619, 737 A.2d 742, 1999 Pa. LEXIS 303 (1999). 5. Trial court properly struck a subcontractor's mechanics' lien against a pump station and sustained the preliminary objections of the general contractor and a township's municipal sanitary authority, as the pump project for which the subcontractor provided labor and materials for was a project involving a public purpose for which a lien could not valid-ly attach. Cornerstone Land Dev. Co. of Pittsburgh LLC v. Wadwell Group, 2008 PA Super 256, 959 A.2d 1264, 2008 Pa. Super. LEXIS 3507 (Pa. Super. Ct. 2008). 6. Creditor was denied relief from automatic stay under 11 U.S.C.S. § 362 because such relief was futile in that the cred-itor's lien would always be avoidable by the debtor under 11 U.S.C.S. § 545(2) where the involuntary Chapter 11 peti-tion was filed against the debtor five hours before the creditor filed his mechanic's lien obtained pursuant to 49 P.S. § 1301. The lien could never be perfected under 49 P.S. § 1502(a) so as to outrank the debtor's avoidance power, and the effect of 11 U.S.C.S. § 546(b)(1)(A) did not change the outcome because that provision only operated to subject the avoidance power to 49 P.S. § 1508(b), which again related to the time of filing. T.P. Elec., Inc. v. GGC, LLC (In re GGC, LLC), 329 B.R. 36, 2005 Bankr. LEXIS 1569, 45 Bankr. Ct. Dec. (LRP) 51 (Bankr. W.D. Pa. 2005). 7. Work performed by a developer to install infrastructure for subdivision was not an erection or construction of im-provement within the meaning of the Mechanics' Lien Law, 49 Pa. Stat. § 1508(a), because it was not performed as part of a continuous scheme to construct a home; because improvement meant building a permanent structure, pursuant to 49 Pa. Stat. § 1201(1), installing sewer lines and ensuring stability of the soil could not be classified as a building or a permanent structure. Dollar Bank, FSB v. EM2 Dev. Corp., 716 A.2d 671, 1998 Pa. Super. LEXIS 1929 (Pa. Super. Ct. 1998), appeal denied by 558 Pa. 619, 737 A.2d 742, 1999 Pa. LEXIS 303 (1999).

49 P.S. § 1508

8. Under Pa. Stat. Ann. tit. 49, § 1508, a filed mechanics' lien took priority from the date of visible commencement of the improvement. Security Bank & Trust Co. v. Pocono Web Press, Inc., 295 Pa. Super. 455, 441 A.2d 1321, 1982 Pa. Super. LEXIS 3507 (1982). TREATISES AND ANALYTICAL MATERIALS 1. 28 P.L.E., JUDICIAL SALES § 22, Pennsylvania Law Encyclopedia, JUDICIAL SALES, § 22. Divestiture of Liens, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 42, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 42. Accrual or Commencement and Duration of Lien, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 3. 32 P.L.E., MECHANICS' LIENS § 45, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 45. Priority, Copy-right 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1509.Effectofforfeitureofleasehold The lien of every claim shall bind only the interest of the party named as owner of the property at the time of the con-tract or acquired subsequently by him, but no forfeiture or surrender of a leasehold, or tenancy, whether before or after the filing of the claim, shall operate to prejudice its lien against the fixtures, machinery or other similar property. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Taken from the last sentence of Section 13, Act of 1901, 49 P.S. 203, Supp.

§1510.Dischargeoflienonpaymentintocourtorentryofsecu‐rity (a) Cash deposit. Any claim filed hereunder shall, upon petition of the owner or any party in interest, be discharged as a lien against the property whenever a sum equal to the amount of the claim shall have been deposited with the court in said proceedings for application to the payment of the amount finally determined to be due. (b) Pro-rata allocation. In any case where the claim or claims are limited in the manner and to the extent provided in section 405, the owner may deposit with the court in separate proceedings a sum equal to the total allowable amount of said claims determined in accordance with said section, whereupon the court, on petition of such owner, shall order all of said claims discharged as liens against the property, and the sum so deposited applied pro rata to the payment thereof in the amounts finally determined to be due. (c) Refund of excess. Any excess of funds paid into court as aforesaid, over the amount of the claim or claims deter-mined and paid therefrom, shall be refunded to the owner or party depositing same upon application for the same. (d) Security in lieu of cash. In lieu of the deposit of any such sum or sums, approved security may be entered in such proceedings in double the amount of the required deposit, or in such lesser amount as the court shall approve, which, however, shall in no event be less than the full amount of such required deposit; and the entry of such security shall enti-

49 P.S. § 1510

tle the owner to have such liens discharged to the same effect as though the required sums had been deposited in court as aforesaid. (e) Authority of court. The court, upon petition filed by any party, and after notice and hearing, may upon cause shown: (1) require the increase or decrease of any deposit or security; (2) strike off security improperly filed; (3) permit the substitution of security and enter an exoneration of security already given. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORTS Adapted from Sections 25 (dealing with proceedings to obtain discharge of lien) and 50 (dealing with approval of secu-rity), Act of 1901, 49 P.S. 135, 242. Subsection (a) eliminates the previous requirement of pleading a defense to the claim as a prerequisite to the allowance of the petition to authorize payment into the court and to claimant's discharge. Subsections (b) and (c) are new but carry out prior practice. Subsection (d) authorizing deposit of cash is new. Subsection (e), while following the substance of Section 50, Act of 1901, supra, is taken from the Rules of Civil Proce-dure. LexisNexis (R) Notes: TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 55, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 55. Discharge, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1601.Owner'srighttoretainfundsofcontractor An owner who has been served with a notice of intention to file or a notice of the filing of a claim by a subcontractor may retain out of any moneys due or to become due to the contractor named therein, a sum sufficient to protect the owner from loss until such time as the claim is finally settled, released, defeated or discharged. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from the last sentence of Section 8, Act of 1901, as amended 1909, March 24, P.L. 65, 49 P.S. 101. LexisNexis (R) Notes: CASE NOTES

49 P.S. § 1601

1. Although a subcontractor's mechanic's lien claim was timely under 49 P.S. § 1502(a)(2), it was equitably estopped under 49 P.S. § 1402(a)(2)(i) from collecting from the owners because, despite knowing of the general contractor's fi-nancial distress, the subcontractor made no attempt to serve a notice of its lien until after owners closed on the property; this conduct disavailed the owners from asserting their remedy under 49 P.S. § 1601 and placed them at a considerable disadvantage. Had the owners known of the financial condition of the general contractor they would have been able to withhold monies from the general contractor and avoid the lien. Kelly Sys. v. Koda, 2008 Pa. Dist. & Cnty. Dec. LEXIS 250 (Aug. 31, 2008). 2. Although a subcontractor's mechanic's lien claim was timely under 49 P.S. § 1502(a)(2), it was equitably estopped under 49 P.S. § 1402(a)(2)(i) from collecting from the owners because, despite knowing of the general contractor's fi-nancial distress, the subcontractor made no attempt to serve a notice of its lien until after owners closed on the property; this conduct disavailed the owners from asserting their remedy under 49 P.S. § 1601 and placed them at a considerable disadvantage. Had the owners known of the financial condition of the general contractor they would have been able to withhold monies from the general contractor and avoid the lien. Kelly Sys. v. Koda, 2008 Pa. Dist. & Cnty. Dec. LEXIS 250 (Aug. 31, 2008).

§1602.Noticetocontractorofclaim (a) An owner served with a notice as provided by section 601 may, and if he has retained any funds due the contractor shall, give written notice thereof to the contractor named. (b) The notice shall state: (1) the name of the subcontractor, the amount of the claim and the amount withheld, if any, by the owner; (2) that unless the contractor within thirty (30) days from service of the notice settles, undertakes to defend, or secures against the claim as provided by section 603, the owner may avail himself of the remedies provided by section 604. (c) The notice may be given by the owner or his agent to the contractor personally, or to the contractor's manager, executive or principal officer or other agent, or if none of these persons can be found, by sending a copy of the notice by first class, registered or certified mail to the contractor at his last known office address. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Subsection (a).. Adapted from Section 9, Act of 1901, 49 P.S. 102. Subsection (b).. Adapted from Section 9, Act of 1901, 49 P.S. 102. The time within which the contractor must act upon the notice is extended from 15 days, as provided by the Act of 1901, to 30 days. Subsection (c).. This subsection providing for the manner of service is new. Section 9, Act of 1901, supra, required the owner to serve the notice "upon the party personally liable for the debt" and did not prescribe the manner of service.

49 P.S. § 1603

§1603.Contractor'sdutiesonreceiptofnotice Upon service of the notice provided by section 602, the contractor shall within thirty (30) days from the contractor's receipt of notice: (1) settle or discharge the claim of the subcontractor and furnish to the owner a written copy of a waiver, release or satisfaction thereof, signed by the claimant; or (2) agree in writing to undertake to defend against said claim, and if the owner has not retained sufficient funds to protect him against loss, furnish the owner additional approved security to protect the owner from loss in the event the defense should be abandoned by the contractor or should not prevail; or (3) furnish to the owner approved security in an amount sufficient to protect the owner from loss on account of said claim. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT This section is adapted from Section 9, Act of 1901, 49 P.S. 103, 105. The duties of the contractor are clarified and ex-panded to provide for the right of the owner to require additional security if the amount retained is not sufficient. LexisNexis (R) Notes: CASE NOTES 1. Although a subcontractor's mechanic's lien claim was timely under 49 P.S. § 1502(a)(2), it was equitably estopped under 49 P.S. § 1402(a)(2)(i) from collecting from the owners because, despite knowing of the general contractor's fi-nancial distress, the subcontractor made no attempt to serve a notice of its lien until after owners closed on the property; this conduct disavailed the owners from asserting their remedy under 49 P.S. § 1601 and placed them at a considerable disadvantage. Had the owners known of the financial condition of the general contractor they would have been able to withhold monies from the general contractor and avoid the lien. Kelly Sys. v. Koda, 2008 Pa. Dist. & Cnty. Dec. LEXIS 250 (Aug. 31, 2008). 2. Although a subcontractor's mechanic's lien claim was timely under 49 P.S. § 1502(a)(2), it was equitably estopped under 49 P.S. § 1402(a)(2)(i) from collecting from the owners because, despite knowing of the general contractor's fi-nancial distress, the subcontractor made no attempt to serve a notice of its lien until after owners closed on the property; this conduct disavailed the owners from asserting their remedy under 49 P.S. § 1601 and placed them at a considerable disadvantage. Had the owners known of the financial condition of the general contractor they would have been able to withhold monies from the general contractor and avoid the lien. Kelly Sys. v. Koda, 2008 Pa. Dist. & Cnty. Dec. LEXIS 250 (Aug. 31, 2008).

§1604.Additionalremediesofowner Should the contractor fail to settle, discharge or defend or secure against the claim, as provided by this act, the owner may:

49 P.S. § 1604

(1) pay the claim of the subcontractor, upon which payment the owner shall be subrogated to the rights of the subcon-tractor against the contractor together with any instrument or other collateral security held by the subcontractor for the payment thereof; or (2) undertake a defense against said claim in which case the contractor shall be liable to the owner for all costs, ex-penses and charges incurred in such defense, including reasonable attorneys' fees, whether said defense be successful or not, but the undertaking of such defense shall not affect the right of the owner to retain funds of the contractor under section 601 until the subcontractor's claim is finally defeated or discharged. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Subdivision (1).. Adapted from Sections 8 and 9, Act of 1901, Section 8 amended 1909, March 24, P.L. 65, 49 P.S. 101, 102, 104. Under Section 8, as amended, the only remedy of the owner, unless approved security was given to indemnify him from loss, was to retain a sum sufficient to protect him. Subdivision (2).. This clause clarifies the right of the owner to defend.

§1701.Proceduretoobtainjudgment (a) Practice and Procedure. The practice and procedure to obtain judgment upon a claim filed shall be governed by the Rules of Civil Procedure promulgated by the Supreme Court. (b) Time for Commencing Action. An action to obtain judgment upon a claim filed shall be commenced within two (2) years from the date of filing unless the time be extended in writing by the owner. (c) Venue; Property in More Than One County. Where a claim has been filed in more than one county as provided by section 502(b), proceedings to obtain judgment upon all the claims may be commenced in any of the counties and the judgment shall be res adjudicata as to the merits of the claims properly filed in the other counties. The judgment may be transferred to such other county by filing of record a certified copy of the docket entries in the action and a certification of the judgment and amount, if any. The prothonotary of the court to which the judgment has been transferred shall forthwith index it upon the judgment index and enter it upon the mechanics' lien docket. (d) Limitation on Time of Obtaining Judgment. A verdict must be recovered or judgment entered within five (5) years from the date of filing of the claim. Final judgment must be entered on a verdict within five (5) years. If a claim is not prosecuted to verdict or judgment, as provided above, the claim shall be wholly lost: Provided, however, That in either case, if a complaint has been or shall be filed in the cause and if the cause has been or shall be at issue, all time thereto-fore or thereafter consumed in the presentation and disposition of all motions and petitions of defendants, substituted defendants and intervenors in the cause, and in any appeal or appeals from any order in the cause, from the date of per-fection of such appeal to the date of return of the certiorari from the appellate court to the court of common pleas, shall be excluded in the computation of the five (5) year period herein provided. (e) Defense to Action on Claim. A setoff arising from the same transaction or occurrence from which the claim arose may be pleaded but may not be made the basis of a counterclaim. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT

49 P.S. § 1701

Subsection (a).. This subsection abolishes the sci. fa. and lev. fa. and other procedural provisions of Sections 31 to 34 inclusive, 36, 37, and 51 to 53 inclusive, Act of 1901, as amended, 49 P.S. 136, 151 to 154 inclusive, 157, 158, 159 and 243 to 247 inclusive. These matters will now be governed by Rules of Civil Procedure to be promulgated by the Su-preme Court which it is anticipated will conform as far as possible to the practice in assumpsit. Subsection (b).. Adapted from Section 10, Act of 1901, 49 P.S. 52. The two-year period for commencing action to ob-tain judgment on the claim remains unchanged. The Act of 1901 permitted the waiver by the owner of the issuance of a writ of sci. fa. for an additional period of three years. The reference to the three-year period is omitted as unnecessary in view of Subsection (c) which provides that the judgment must be recovered within five years from the date of filing, totalling the two- and three-year period allowed by the Act of 1901. Subsection (c).. This subsection is new. The Act of 1901 failed to provide for venue where the improvement is in more than one county. Section 45, Act of 1901, 49 P.S. 183, dealt only with the execution sale of a structure in more than one county and did not deal with the venue of filing of the lien. Subsection (c) is intended to clarify the procedure where claims have been filed in more than one county and to provide full faith and credit to judgments on the merits obtained in any of the counties in which a claim has been filed so as to obviate any necessity for an additional trial to obtain judgment in the other counties. However, a judgment on the merits in one county will not prevent an improper lien, one filed for example after the four-month period, from being stricken. Subsection (d).. Taken from Section 10, Act of 1901, 49 P.S. 52. Subsection (e).. Taken from Section 36, Act of 1901, 49 P.S. 157. The provisions of that section providing that the fil-ing of a claim for a grossly excessive amount could defeat the entire claim are omitted, thus changing prior practice. The Act of 1901 is clarified to expressly provide that a set-off cannot be made the basis of a counterclaim resulting in a verdict in favor of the owner against the contractor or subcontractor. Also, the action is now treated as one in rem re-stricting set-offs to those arising from the same transaction or occurrence from which the claim arose. To the extent that prior decisions were not in accord, they are overruled. HISTORY: Act 1972-343 (H.B. 636) P.L. 1640, § 1, approved Dec. 28, 1972, eff. immediately. NOTES: LexisNexis (R) Notes: Editor's Notes.--Section 2 of Act 1972-343 provides that "[t]his act shall apply to all mechanics' lien causes pending at the time of its enactment." CASE NOTES 1. Although summary judgment was rendered in favor of a hotel and the owner of a construction project on the hotel in a Chapter 7 debtor's action to recover on a mechanics' lien, the hotel and the project owner were not entitled to summary judgment on their counterclaims for breach of contract and slander of title because under 49 Pa. Stat. Ann. § 1701(c) of the Mechanics' Lien Law and under Pa. R. Civ. P.1568, they were statutorily precluded from asserting their counter-claims. Because they filed a proof of claim for breach of contract, they could pursue relief against the debtor and/or re-cover some distribution based on their proof of claim in the debtor's bankruptcy case. Cliffwood Elec. Contr., Inc. v. Century Gen. Constr., Inc. (In re Cliffwood Elec. Contr., Inc.), 415 B.R. 149, 2009 Bankr. LEXIS 3798 (Bankr. E.D. Pa. 2009).

49 P.S. § 1701

2. Trial court's grant of summary judgment on the basis that a prior consent judgment between a contractor and a prop-erty owner operated as res judicata on the property owners' subsequent action for breach of contract, was reversed be-cause a counterclaim could not be raised in mechanic's lien claim proceedings, pursuant to 49 P.S. § 1701(e), but rather only the right to a set-off; therefore, it was neither res judicata, nor did it collaterally estop the present action. Matternas v. Stehman, 434 Pa. Super. 255, 642 A.2d 1120, 1994 Pa. Super. LEXIS 1723 (1994). 3. Even after court computed excludable time cause by various motions and intervention of the other owners, the lien claimant's action to enforce its mechanics' lien was untimely. Martin Stone Quarries v. Robert M. Koffel Builders, 2001 PA Super 318, 786 A.2d 998, 2001 Pa. Super. LEXIS 3430 (Pa. Super. Ct. 2001), appeal denied by 569 Pa. 707, 805 A.2d 525, 2002 Pa. LEXIS 1726 (2002). 4. Property owners' motion to strike mechanic's lien filed by a drilling company on well installed on their land was im-properly denied where the drilling company failed to commence the action within the statute of limitations of 49 Pa. Stat. § 1701(b). Tully Drilling Co. v. Shenkin, 409 Pa. Super. 333, 597 A.2d 1230, 1991 Pa. Super. LEXIS 3161 (1991). 5. Although summary judgment was rendered in favor of a hotel and the owner of a construction project on the hotel in a Chapter 7 debtor's action to recover on a mechanics' lien, the hotel and the project owner were not entitled to summary judgment on their counterclaims for breach of contract and slander of title because under 49 Pa. Stat. Ann. § 1701(c) of the Mechanics' Lien Law and under Pa. R. Civ. P.1568, they were statutorily precluded from asserting their counter-claims. Because they filed a proof of claim for breach of contract, they could pursue relief against the debtor and/or re-cover some distribution based on their proof of claim in the debtor's bankruptcy case. Cliffwood Elec. Contr., Inc. v. Century Gen. Constr., Inc. (In re Cliffwood Elec. Contr., Inc.), 415 B.R. 149, 2009 Bankr. LEXIS 3798 (Bankr. E.D. Pa. 2009). 6. Even after court computed excludable time cause by various motions and intervention of the other owners, the lien claimant's action to enforce its mechanics' lien was untimely. Martin Stone Quarries v. Robert M. Koffel Builders, 2001 PA Super 318, 786 A.2d 998, 2001 Pa. Super. LEXIS 3430 (Pa. Super. Ct. 2001), appeal denied by 569 Pa. 707, 805 A.2d 525, 2002 Pa. LEXIS 1726 (2002). 7. Lien claimant's mechanics' lien action was commenced more than five years after the work had been done it was un-timely under 49 P.S. § 1701(d). Martin Stone Quarries v. Robert M. Koffel Builders, 2001 PA Super 318, 786 A.2d 998, 2001 Pa. Super. LEXIS 3430 (Pa. Super. Ct. 2001), appeal denied by 569 Pa. 707, 805 A.2d 525, 2002 Pa. LEXIS 1726 (2002). 8. Trial court's grant of summary judgment on the basis that a prior consent judgment between a contractor and a prop-erty owner operated as res judicata on the property owners' subsequent action for breach of contract, was reversed be-cause a counterclaim could not be raised in mechanic's lien claim proceedings, pursuant to 49 P.S. § 1701(e), but rather only the right to a set-off; therefore, it was neither res judicata, nor did it collaterally estop the present action. Matternas v. Stehman, 434 Pa. Super. 255, 642 A.2d 1120, 1994 Pa. Super. LEXIS 1723 (1994). 9. Property owners' motion to strike mechanic's lien filed by a drilling company on well installed on their land was im-properly denied where the drilling company failed to commence the action within the statute of limitations of 49 Pa. Stat. § 1701(b). Tully Drilling Co. v. Shenkin, 409 Pa. Super. 333, 597 A.2d 1230, 1991 Pa. Super. LEXIS 3161 (1991). 10. Trial court erred when it permitted the corporation to pursue its mechanic's lien against the company because the lien was lost for failure of the corporation to recover a verdict on its claim within five years from the issuance of a scire facias as required by 49 P.S. § 1701(d). Brann & Stuart Co. v. Consolidated Sun Ray, Inc., 433 Pa. 574, 253 A.2d 105, 1969 Pa. LEXIS 595 (1969), writ of certiorari denied by 396 U.S. 840, 90 S. Ct. 102, 24 L. Ed. 2d 91, 1969 U.S. LEXIS 957 (1969).

49 P.S. § 1701

TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 71, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 71. In General, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 2. 32 P.L.E., MECHANICS' LIENS § 72, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 72. Procedure for Contesting Claim, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 3. 32 P.L.E., MECHANICS' LIENS § 74, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 74. Time To Sue, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 4. 32 P.L.E., MECHANICS' LIENS § 83, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 83. Judgment, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group. 5. 45 P.L.E., STATUTES § 98, Pennsylvania Law Encyclopedia, STATUTES, § 98. Civil Remedies, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1702.Effectofjudgmentonrighttopersonalaction Nothing in this act shall alter or affect the right of a claimant to proceed in any other manner for the collection of his debt. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Taken from Section 58, Act of 1901, 49 P.S. 265. The last sentence of that section providing that a judgment on the merits in favor of or against a contractor shall have the effect of debarring any further proceedings against him personal-ly is omitted for the reason that the contractor is not a party to the proceedings in the sense that a judgment can constitu-tionally be obtained against him in the mechanics' lien proceedings. See Sterling Bronze Co. v. Syria Imp. Co., 226 Pa. 475 (1910), 75 A. 668; Page v. Carr, 232 Pa. 371, 376 (1911), 81 A. 430. However, the omission of this provision is not intended to interfere with the proper application of the principle of res adjudicata against the owner. See Contractors Lumber & Supply Co. v. Quinette, 185 Pa.Superior Ct. 66 (1958), 137 A.2d 841, holding that a judgment for the owner in the mechanics' lien action on the ground he had not agreed to pay for the material is a defense to an assumpsit action on the same set of facts.

§1703.Appealfromjudgment From any judgment, order or decree entered by the court of common pleas under the provisions of this act or from any refusal to open a judgment entered by default, an appeal may be taken. LexisNexis (R) Notes: TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 85, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 85. Appeal and Costs, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

49 P.S. § 1704

§1704.Satisfactionofclaims;penaltyforfailuretosatisfy If shall be the duty of a claimant upon payment, satisfaction or other discharge of the claim, verdict or judgment to enter satisfaction thereof upon the record upon payment of the costs of same. Upon failure to do so within thirty (30) days after a written request to satisfy, the court upon petition of any party in interest may order the claim, verdict or judgment satisfied and the claimant shall be subject to a penalty in favor of the party aggrieved in such sum as the court in the petition proceedings shall determine to be just, but not exceeding the amount of the claim. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Adapted from Section 54, Act of 1901, 49 P.S. 262. The Act of 1901 required the commencement of a separate action for a penalty for failure to satisfy. This section now authorizes the imposition of penalties upon petition proceedings in the mechanics' lien action.

§1705.Revivalofjudgment Judgment upon a claim shall be revived within each recurring five-year period. The practice and procedure to revive judgment shall be governed by the Judgment Lien Law of 1947, as now in force or hereafter amended, and the Rules of Civil Procedure promulgated by the Supreme Court, but the lien of the revived judgment shall, as in the case of the orig-inal judgment, be limited to the liened property. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT The writ of sci. fa. procedure to revive judgments provided by Sections 40, 41 and 42, Act of 1901, 49 P.S. 221, 222, 223 and 224 is abolished. The practice will now be governed by the Judgment Lien Law of 1947 and Rules of Civil Procedure to be promulgated by the Supreme Court.

§1706.Executionuponjudgment (a) Judgment Essential to Execution. No execution shall issue against the property subject to a claim except after judgment shall have been obtained upon the claim, and within five (5) years from the date of such judgment or a revival thereof. (b) Conformity to Rules of Civil Procedure. The practice and procedure relating to execution shall be governed by the Pennsylvania Rules of Civil Procedure relating to execution. (c) Division of Tract. Where only a part of a single tract is subject to the lien of a mechanic's claim, and such part cannot be sold without prejudice or injury to the whole, the court on petition of the owner, claimant or any person in interest may order the entire tract sold and shall equitably distribute the proceeds of sale according to the relative value of the part bound by and that free of the claim. The court may determine the matter itself and for that purpose may re-ceive evidence by deposition or otherwise, or may appoint an auditor to hear the evidence and report to the court. NOTES:

49 P.S. § 1706

COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT Subsection (a).. Taken from Section 10, Act of 1901, 49 P.S. 52. Subsection (b).. The special provisions of Section 39, Act of 1901, 49 P.S. 201, relating to sequestration and the provi-sions providing a three-month stay where the lien property is occupied as a home are deleted. Likewise, the provisions of Section 47, Act of 1901, 49 P.S. 184, relating to leasehold estates, execution sales, and giving the purchaser the op-tion of affirming the lease unless it otherwise provides, are not included. The general Execution Rules of the Supreme Court will govern. Similarly, the provisions of Section 48, Act of 1901, 49 P.S. 160, insofar as they relate to stay of execution proceedings, will also be governed by the Execution Rules of the Supreme Court. Subsection (c).. Taken from Section 14, Act of 1901, 49 P.S. 31. The present Supreme Court Execution Rules do not precisely cover this situation and to prevent any possible question the provisions of former Section 14 have been includ-ed. LexisNexis (R) Notes: TREATISES AND ANALYTICAL MATERIALS 1. 32 P.L.E., MECHANICS' LIENS § 84, Pennsylvania Law Encyclopedia, MECHANICS' LIENS, § 84. Execution and Enforcement of Judgment, Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

§1801.Severability If any provision of this act or the application thereof to any person or circumstance is held invalid, the remainder of this act, and the application of such provision to other persons or circumstances, shall not be affected thereby and to this end the provisions of this act are declared to be severable.

§1802.Effectivedate This act shall take effect on the first day of January, 1964, but shall not apply to liens filed prior to said date except with respect to the practice and procedure prescribed by Article VII of this act. NOTES: COMMENT--JOINT STATE GOVERNMENT COMMISSION 1964 REPORT This section makes clear that as to liens filed prior to the effective date, the procedural provisions of Article VII shall nevertheless apply. As to claims which have arisen prior to the effective date but are filed after the effective date, the substantive provisions of the Act of 1901 as to the time for filing will apply but the procedural provisions of this act will govern.

§1901.Specificrepeal The following act is repealed absolutely.

49 P.S. § 1901

The act of June 4, 1901 (P.L. 431), entitled "An act defining the rights and liabilities of parties to, and regulating the effect of, contracts for work and labor to be done, and labor or materials to be furnished, to any building, bridge, wharf, dock, pier, bulkhead, vault, subway, tramway, tollroad, conduit, tunnel, mine, coal-breaker, flume, pump, screen, tank, derrick, pipe-line, aqueduct, reservoir, viaduct, telegraph, telephone, railway or railroad line; canal millrace; works for supplying water, heat, light, power, cold air, or any other substance furnished to the public; well for the production of gas, oil or other volatile or mineral substance; or other structure or improvement, of whatsoever kind or character the same may be; providing remedies for the recovery of debts due by reason of such contracts, and repealing, consolidating and extending existing laws in relation thereto."

§1902.Generalrepeal All other acts and parts of acts are repealed in so far as they are inconsistent herewith.

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