B.N. Excavating, Inc. v. PBC Hollow-A, L.P.

• Decision Date: 17 May 2013
• Citation: 71 A.3d 274,2013 PA Super 120
• Parties: B.N. EXCAVATING, INC., Appellant v. PBC HOLLOW–A, L.P. and PBC Hollow–B, L.P., Appellees.
• Court: Pennsylvania Superior Court

71 A.3d 274

2013 PA Super 120

B.N. EXCAVATING, INC., Appellant

v.PBC HOLLOW–A, L.P. and PBC Hollow–B, L.P., Appellees.

Superior Court of Pennsylvania.

Argued March 21, 2012.

Filed May 17, 2013.

Ciara C. Young, Lancaster, for appellant.

Ryan D. Harmon, Philadelphia, for appellees.

BEFORE: STEVENS, P.J., BOWES, GANTMAN, PANELLA, SHOGAN, ALLEN, LAZARUS, MUNDY, and WECHT, JJ.

OPINION BY BOWES, J.:

B.N. Excavating, Inc. (“Appellant”) appeals the trial court order wherein the court sustained the preliminary objections in the nature of a demurrer filed by PBC Hollow–A, L.P. and PBC Hollow–B, L.P. (“Appellees”), struck Appellant's complaint for a mechanics' lien, and dismissed the mechanics' lien claim with prejudice. After careful review, we reverse and remand.

The trial court succinctly summarized the relevant facts and procedural history as follows:

[Appellant] filed a mechanics' lien claim on or about June 8, 2009 in the amount of $118,670.71 against property and improvements owned by [Appellees] and known as Providence Business Park, West, Phase II, and located at 571 and 575 Hollow Road, Phoenixville, PA, 19460 (“Property”). The Property is owned by [Appellees]. [Appellant] filed a Complaint in Action upon Mechanics' Lien on August 10, 2009. [Appellant's] Mechanics' Lien claim arises from work allegedly performed by [Appellant] as subcontractor at the property pursuant to a contract between [Appellant] and Warihay Enterprises, Inc., which served as [Appellees'] general contractor. [Appellant] claims that it entered into a contract with Warihay to provide “labor and materials for excavation work, including but not limited to, a silt fence, temporary riser, emergency spillway, topsoil stripping, cut and fill, concrete pipe, sub-grading for building pad, storm water bed, rock ribbing and other site work.” [Appellant] claims that it completed its work on the property on December 18, 2008, and filed its Mechanics' Lien claim within six (6) months of completion of the work. [Appellees] filed Preliminary Objections to the Complaint on the Mechanics' Lien on August 31, 2009. [Appellant] answered the Preliminary Objections on September 14, 2009. After memoranda of law were filed, oral argument on the Preliminary Objections was heard on May 14, 2010, after which [the trial court] sustained [Appellees'] Preliminary Objections.

Trial Court Opinion, 8/2/10, at 1–2 (internal citations omitted).

Appellant filed a timely notice of appeal and complied with the trial court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). A three-judge panel of this Court reversed the order sustaining Appellees' demurrer, ruling that it did not appear with certainty that the law precluded recovery. En banc review of that panel decision was granted, and the matter is now ready for disposition. Appellant raises two issues.

1. Whether the trial court erred in sustaining [Appellees'] Preliminary Objections and striking Appellant['s] ... Lien Claim based on disputed facts regarding whether the work was incidental to the erection or construction of an improvement, and without receiving evidence on the issue.

2. Whether the trial court erred in concluding that the work performed by [Appellant] was not incidental to the erection or construction of an improvement.

Appellant's brief at 4.

In sustaining Appellees' preliminary objections, the trial court concluded that our reasoning in Sampson–Miller Associated Companies v. Landmark Realty Co., 224 Pa.Super. 25, 303 A.2d 43 (1973), barred Appellant's mechanics' lien for the excavation performed incident to the planned construction because Appellees averred that a structure was never erected. In Sampson–Miller, this Court employed a strict construction of the Mechanics' Lien Law to hold that the plain words of the Mechanics' Lien Law established that “no lien can attach to land for work unconnected to the construction of a building.” ¹Id. at 46. In reaching this conclusion, the Sampson–Miller Court first considered the statutory definition of erection, construction, alteration, or repair pursuant to 49 P.S. § 1201(12)(a), which included, inter alia, excavation “when such work is incidental to ... erection, construction, alteration or repair.” See49 P.S. § 1201(12)(a).² Significantly, the Court then observed that the General Assembly intended to differentiate between situations where groundwork is performed incidental to construction as opposed to when groundwork is performed independent from construction. Sampson–Miller, supra at 45.

Appellant's first argument challenges the trial court's singular reliance upon Appellees' allegation that, “There is no building or structure of any type on the Property,” in order to sustain the preliminary objection. See Appellees' Preliminary Objection at 4; Trial Court Opinion, 8/2/10, at 3. Appellant disputes the status of the property and contends that the trial court ignored reasonable inferences in the mechanics' lien claim and complaint that established that the work was performed incidental to the erection or construction of an improvement. Appellant continues that since the matter turns upon what is essentially a question of fact, the trial court dismissed its claim prematurely without first constructing a factual record to support its decision. Upon review of the pleadings in the certified record, we agree with Appellant that the trial court erred in sustaining the demurrer based upon the assertion leveled in Appellees' preliminary objections.

We reiterate our standard of review of an order sustaining a demurrer as follows:

When reviewing the dismissal of a complaint based upon preliminary objections in the nature of a demurrer, we treat as true all well-pleaded material, factual averments and all inferences fairly deducible therefrom. Where the preliminary objections will result in the dismissal of the action, the objections may be sustained only in cases that are clear and free from doubt. To be clear and free from doubt that dismissal is appropriate,it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Any doubt should be resolved by a refusal to sustain the objections. Moreover, we review the trial court's decision for an abuse of discretion or an error of law.

Ira G. Steffy & Son, Inc. v. Citizens Bank of Pennsylvania, 7 A.3d 278, 282–283 (Pa.Super.2010) (quoting Burgoyne v. Pinecrest Community Ass'n, 924 A.2d 675, 679 (Pa.Super.2007)). A demurrer should be sustained only when the complaint is clearly insufficient to establish the pleader's right to relief. Ellenbogen v. PNC Bank, 731 A.2d 175, 181 (Pa.Super.1999).

Thus, in order to review Appellees' demurrer properly, the trial court was required to determine whether the law precluded recovery notwithstanding Appellant's well-pleaded factual averments and all reasonable inferences that could be drawn therefrom. Instantly, Appellant's pleadings and attached documentation aver that it performed the excavation and preparation of building pads in accordance with Appellees' planned construction of two buildings. Specifically, Appellant's mechanics' lien claim referenced exhibits that included (1) the proposal/contract for “Providence Business Park West Phase 2;” (2) invoices for the performance of work including, inter alia, the creation of a construction entrance and sub-grading for two building pads; and (3) the formal notice of intention to file a mechanics' lien claim for “excavation and site work for improvements to Providence Business Park–West Phase 2.” See Mechanics' Lien Claim, 6/8/09, Exhibits B–D. Thereafter, Appellant attached the Mechanics' Lien Claim and the identical supporting documentation to the Complaint it filed on August 10, 2009. See Complaint in Action Upon Mechanics Lien Claim, 8/10/09. However, as noted supra, instead of applying the proper review of Appellees' demurrer, the trial court ignored the assertions Appellant actually leveled in both the mechanics' lien claim and the complaint in action upon the mechanics' lien claim. Instead, the trial court based its decision to dismiss the lien upon a single disputed averment in Appellees' preliminary objections.³ The trial court's misapplication of the law constitutes reversible error.

Upon review of the pleadings and supporting documentation, we find that the reasonable inference drawn from Appellant's factual averments is that Appellant performed its excavation incidental to the proposed construction of the two-building project that Appellees failed to complete. See Ira G. Steffy & Son, Inc., supra at 282 (“When reviewing the dismissal of a complaint based upon preliminary objections in the nature of a demurrer, we treat as true all well-pleaded material, factual averments and all inferences fairly deducible therefrom.”).

In view of the learned dissent's position that we misapplied our standard and scope of review in this case, we highlight that “In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto ...” See Foster v. UPMC South Side Hospital, 2 A.3d 655, 662 (Pa.Super.2010)(quoting Lugo v. Farmers Pride, Inc., 967 A.2d 963, 966 (Pa.Super.2009) (emphasis added)). Inasmuch as the foregoing references to Appellant's pleadings establish Appellant's assertion that it performed excavation incidental to the proposed construction, the certified record refutes the dissent's repeated protestations that the pleadings are insufficient. While the dissent purports to express no opinion about the vitality of our holding in Sampson–Miller, supra, the dissent's position that Appellant failed to allege that a structure actually existed is founded, at least implicitly, upon its interpretation of the Sampson–Miller Court's holding that “no lien can attach to land for work unconnected to the...