56 Del. 587 | Del. Super. Ct. | 1963
Appellant filed a Mechanic’s Lien proceeding in Superior Court on December 20, 1961. The statement of claim was verified by the oath of the appellant, as required by the statute. It showed that the appellant was a subcontractor employed by appellee Julian, the general contractor, to furnish labor and materials for certain paving work on property owned by the appellee DePolo. The statement alleged that the furnishing of the labor and materials commenced on July 1, 1960 and was completed on September 23, 1961.
The answer alleged that the work was completed no later than June 8, 1960 and that the action had therefore not been instituted within the ninety-day period permitted by T. 25 Del. C. § 2711(a). The answer also alleged
The motion to dismiss was treated by the Court below as a motion for summary judgment because it was necessary to consider the sworn statements in the record. The Court granted summary judgment in favor of the appellees, holding that the undisputed evidence properly in the record showed that the work was completed by June 6, 1960, but that it was unsatisfactory; that efforts were made to put the job in satisfactory condition but it was never accepted by the appellees. The Court also held that the record does not show that the work done by appellant was for the “erection, alteration or repair of any structure” but was for “improvements to the land alone”. It then held that the statement of claim was defective because it contained no allegation that there was a contract in writing signed by the owners, as is required by T. 25 Del. C. § 2703 when the work done is for improvements to the land alone.
Summary judgment, of course, cannot be granted when there is a dispute of material fact. In determining whether there is such dispute, the Court must consider all evidence in the record which meets the standards of Superior Court Rule 56(e), Del. C. Certainly sworn answers to interrogatories cannot be disregarded if they are made on personal knowledge. Likewise, there is no reason to ignore statements of fact in a complaint ■duly verified on personal knowledge; no purpose would be served by requiring that affiant to file an additional :affidavit repeating the same statements.
The appellees contend that, for purposes of determining the last date on which a mechanic’s lien action could be filed, the record requires a finding that the work was completed by June 8, 1960, the date on which appellant first finished the paving work. The verified complaint says that the last date for furnishing labor and material", was September 23, 1961; Jones’ answers to interrogatories repeat that allegation and aver that after June 1960 he-, or his workmen frequently returned to the property and did various things to try to satisfy the owners until he-finally completely resurfaced the area on September 23, 1961. He states that all work done after June 1960 was in response to complaints by the appellees and on their demand.
This dispute concerning the date of completion for lien purposes cannot be resolved summarily on the present record. There are several possible conclusions of fact which could be drawn by a jury. It would be a.
With reference to the ruling made below that the job done by the appellant was improvement to the land alone,
The decision of the Court below must be reversed and the case remanded for further proceedings.
This defense was not pleaded or argued below, but was decided by the Court sua sponte, we are told.