Malone v. Hosfeld, 53 Pa. Super. 134

Malone v. Hosfeld

53 Pa. Super. 134 | Pa. Super. Ct. | 1913

Opinion by

Rige, P. J.,

In the mechanic’s claim in question the building was described as “a brick building, four stories in front and three stories in the rear, known as Nos. 1235 and 1237 Vine street, forming a single plant used for carrying on the business of sign painting,” and the claim was for the price of “materials furnished and supplied toward the erection and construction of said building.” The learned trial judge specially presiding held, in a well-considered opinion, “that the work done and materials furnished were so done and furnished in the alteration of Nos. 1235 and 1237 Vine street and that they did not enter into the construction of a new structure.” We are of opinion that this conclusion is in accordance with the facts testified to by the plaintiff’s witnesses (the defendants offered no evidence), and is supported by the authorities cited in his opinion. The evidence descriptive of the changes made in the old building, being uncontradicted, casts upon the trial judge the -duty of determining *140whether the structure against which the claim was filed was an altered or a new one: Warren v. Freeman, 187 Pa. 455. When the facts are undisputed, it is for the court to determine what does or does not constitute a new building: Porter v. Weightman, 29 Pa. Superior Ct. 488. As we concur in the learned judge’s conclusion above stated, it necessarily follows that the lien cannot be sustained as for a new erection or construction, unless the mechanic’s hen law upon that subject has been changed by the act of 1901. Nor can it be sustained as a lien for alteration and repair, because the statutory provisions relating to that class of claims were not complied with. If it is sustainable at all, it is because it comes within this clause of sec. 3 of the Act of June 4, 1901, P. L. 431: “Every adaptation of an old structure or other improvement to a new or distinct use, which effects a material change in the interior or exterior thereof, shall also be deemed an erection or construction thereof.” We are not prepared to say that this clause would not bear a construction which would include a case like the present, and, therefore, it becomes necessary to consider whether and to what extent it is a valid enactment. Under the old law, it was the extent and character of the altera- ' tions, and not the mere change of purpose of the building, that was the test by which to determine whether they constitute an erection or construction of a building, within the meaning of the statute: Norris’s App., 30 Pa. 122. As to the extent and character of the alterations required, the rule established by the decisions was thus stated by Agnew, J., in Miller v. Hershey, 59 Pa. 64: “The idea which runs throughout all the cases is newness of structure in' the main mass of the building — that entire change of external appearance which denotes a different building from that which gave place to it, though into the composition of the new structure some of the old parts may have entered. This newness of construction must be in the exterior, the main plan of the building, and not in it's interior arrangements.” This construction of the act, *141relating to the subject of the “erection or construction” of buildings, was recognized and applied in a long line of cases prior to the act of 1901, amongst the latest of which are Warren v. Freeman, 187 Pa. 455, in the Supreme Court, and Caldwell v. Keating, 18 Pa. Superior Ct. 297, in this court. If the foregoing clause of the act of 1901 was intended to change this settled law, and to extend the right to file a lien for “erection and construction” to cases not coming up to this well-established standard, it must be deemed to be clearly divergent from and an advance upon the mechanic’s lien law as it stood prior to the time when our present constitution- went into effect, and, therefore, is, to that extent, in conflict with sec. 7, art. Ill of the constitution: Vulcanite Portland Cement Co. v. Allison, 220 Pa. 382; Vulcanite Paving Co. v. Phila. Rapid Transit Co., 220 Pa. 603; Henry Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486; Sterling Bronze Co. v. Syria Improvement Assn., 226 Pa. 475; Page v. Carr, 232 Pa. 371; Sax v. School Dist., 237 Pa. 68. In an opinion filed herewith, in Sumption v. Rogers, ante, p. 109, we have considered this general subject at considerable length, and will not go over the ground again in this case. In any view that may be taken of it, we think the court was right in entering judgment for the defendant non obstante veredicto.

The judgment is affirmed.