250 Pa. 472 | Pa. | 1915
Opinion by
The plaintiff contracted directly with the defendant
In support of their contention that the entire claim should have been stricken from the record, the appellants argue that the part of Section 2 of the Mechanic’s Lien Act of June 4, 1901, P. L. 431, which permits a lien for fitting up and equipping “new or old structures” with “boilers, engines......or other useful appliances,” is unconstitutional, because it permits a lien to be filed against an old structure, whereas, under the law as it stood prior to the Act of 1901, no claim could be filed for erecting boilers,, etc., unless the installation thereof was coincident with the erection of a new structure: Summerville v. Wann, 37 Pa. 182, 186; Wharton & Hallowell v. Real Estate Investment Co., 180 Pa. 168, 176. They say that, even though the claim at bar might be held good under the Act of 1901, supra, yet, the part of the act relied upon being unconstitutional, the case must be viewed according to the law as it stood prior to 1901, and, thereunder, the present lien not showing on its face that the installation'of the boiler entered into' the erection of a new structure, the claim was insuf
We have decided that an owner has the right to have a claim, defective on its face, stricken off on motion: Fahnestock v. Speer, 92 Pa. 146; Klinefelter v. Baum, 172 Pa. 652; and, when a rule to strike off is taken by an owner, depositions cannot be used by either side to show that the claim, though insufficient on its face, is, in point of fact, valid or invalid within the requirements of the law: Heistand v. Keath, 229 Pa. 149. There is a well recognized rule, however, to the effect that a court will never heed objections to the constitutionality of an act of assembly unless the complainant is affected by the particular feature alleged to be in conflict with the Constitution: Cooley’s Constitutional Limitations, 196; Wellington, et al., Petitioners, 33 Mass. 87, 96; Jeffrey Manufacturing Co. v. Blag, 235 U. S. 571; Plymouth Coal Co. v. Commonwealth of Penna., 232 U. S. 531; Smith v. McCarthy, 56 Pa. 359, 362. Here, in the court, below, the substantial complaint was that the claim represented an endeavor to lien “an old building.” The plaintiff answered that the building was a new structure, and that the installation of the boiler in this building was coincident with its erection. Therefore, the plaintiff contends it was necessary judicially to determine the character of the structure, and that, in this preliminary, collateral inquiry, it was incumbent upon the defendants to show the building liened was in point of fact an old structure at the time the, boiler was placed therein, before they would be in a position to insist upon the constitutional objection relied upon by them in the court below. To state the position of the plaintiff more fully, it contends that, if in fact the engine in this case entered into the erection of a new building, then the defendant company was not in the class affected by a change in the law which permitted liens upon old buildings under circumstances where they were not allowed prior to 1901; hence, in view of the ground of complaint in the petition
In substance, we agree with the foregoing contentions; but for the collateral purpose of ascertaining whether or not the defendant company was within the class affected by the alleged unconstitutional provision, the court below might have found the fact concerning the character of the building in which the engine was erected from the pleadings on the rule to strike off the lien, without at all considering the depositions at bar. We say this for the following reason: Section 52 of the Act of 1901, supra, contemplates and provides for petitions, answers and replications, when applicable to relief under the statute, expressly stating that “the facts averred by either party, and not denied in the answer or replication of the other, shall be taken as true in all subsequent proceedings in the cause, without the necessity for proof thereof,” and the plaintiff’s answer to the rule to strike off the claim, to which no replication or denial of any kind was interposed, avers “that the......engine ......was not installed in an old building as is alleged in the said petition, but on the contrary such engine was furnished and installed in a new building, which build
It is not necessary further to consider the constitutional question we have adverted to, or the effect of the court’s finding of fact already discussed; for assuming, but not deciding, that the law requires, in the first place, that all claims such as the one at bar shall specifically state the building liened is a new structure and that the machinery covered by the claim was furnished to and constituted part, or was used in or procured for the erection, of such structure, and, in the next place, that items such as the one comprehending the charges for the superintendent furnished by the plaintiff, shall be stated more in detail than attempted in the present claim, still, under the facts in this case as they appear of record, the judgment can and should be sustained, for a reason which we shall now consider. The attack upon the sufficiency of the present lien was not based on a contention that it failed to state anything required to be shown by express statutory provision, but simply that the claim was defective because not self-sustaining, in that it failed to set forth certain material matters of detail called for by the decisions of this court. Since it appears upon the record that the defendant company, shortly after the claim was filed, entered into an agreement with the plaintiff postponing the issuance of a scire facias for three years, it is fair to assume that the latter was then about to take out such a writ. If any defects existed in the claim, and a scire facias had issued at that time, an affidavit of defense would have been required within fifteen days: Atlantic Terra Cotta Co. v. Carson, 248 Pa. 417, 422; hence, the attack on the lien, of necessity, must have developed within that period, and even if fatal defects were shown to exist, the plaintiff would have had ample time in which to file a new claim (as more fully shown by the dates stated in the first paragraph of this opinion). By seeking and securing the extension of three years, and thus lulling the plaintiff into a sense of securi
There is still another reason for sustaining the judgment in this case. Under Section 51 of the Act of Í901, supra, the plaintiff might properly have been granted leave formally to amend its claim in the particulars complained of; and, in fact, by a petition filed in the court below on July 7, 1914, praying for leave to file an answer nunc pro tunc, it appears that the plaintiff
The assignments of error are overruled, and the judgment is affirmed.