224 Pa. Super. 25 | Pa. Super. Ct. | 1973
Opinion by
Appellant Sampson;-,Miller Associated Companies filed a mechanics’ lien in 1971 for work performed on vacant land in Allegheny County owned by appellee Landmark Eealty Company. The work which furnished the basis of this asserted lien consisted of the following: clearing, grubbing, excavating and grading the land; installation of storm sewers, sanitary sewers, paving and curbing; and seeding. No buildings or other permanent structures were built on these parcels of land. The trial court dismissed appellant’s complaint and struck the mechanics’ lien, holding that “a mechanics’ lien cannot attach to land; there must be a building or part of a building or some type of structure upon which a lien may attach. . . .” This appeal requires a determination of whether a proper construction of the Mechanics’ Lien Law of 1963,
Mechanics’ liens were non-existent at common law, being purely of statutory origin. As they are in derogation of the common law and since they effectively represent a special remedy in favor of a unique class of
The first mechanics’ lien law, enacted in the Commonwealth in 1803, provided, that “Every dwelling house or other building hereafter constructed and erected within the City and County of Philadelphia . . . shall be subject to the payment of the debts contracted for. . . .”
The most recent change in this remedy was the 1963 Act which provides the statutory basis for the instant claim. Essentially it recodified the 1901 Act and existing decisional law, without abridging or enlarging the right to lien.
“Improvement” is defined in the Act as “[including] 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.”
Court interpretations of earlier statutes prior to the 1963 enactment had indeed provided protection for those who did preliminary work similar to that performed by appellant, but only if that work was connected to, and an integral part of, the erection, construction, alteration, or repair of the main improve-
We reach this result reluctantly, however, and urge the legislature, now freed of restraints in this area by the 1967 constitutional amendments, to liberalize the wording of the statute to bring within the purview of the lien work similar to that done by appellant. The
In addition, the conditions prevalent at the time of the inception of the mechanics’ lien concept and on which the refusal to extend it to work on land alone were based, no longer exist. The historical opposition to the extension of such liens stems from the common law and later-day reluctance to encumber real property, particularly as land and agriculture were viewed as the source of all prosperity. See, e.g., Young v. Shriver, 56 Cal. App. 653, 657, 206 Pac. 99, 101 (D.C. App., 1922). In light of the transformation to a commercial, service-oriented economy, it would appear that the failure to extend the lien to cover improvement of land, regardless of its connection to the construction of buildings, lacks any rational policy basis.
The order of the court below is affirmed.
49 P.S. §§1101 et seq., Act of August 24, 1963, P. L. 1175, art. I.
It should be noted that some jurisdictions have applied a liberal interpretation of their statutes, e.g., Mazel v. Bain, 272 Ala. 640, 133 So. 2d 44 (1961) ; others construe the right to lien narrowly and the procedure for perfecting such liens liberally, e.g., Friedman v. Stein, 4 N.J. 34, 71 A. 2d 346 (1950).
Act of April 1, 1803, P. L. 591, 4 Sm. L. V.
Act of June 16, 1836, P. L. 695, §1.
Act of June 4, 1901, P. L. 431, §2, 49 P.S. §21.
See Comment — Joint State Gov’t. Commission, 1964 Report, 49 P.S. §1201(1), (12).
In support of the claim that the 1967 constitutional amendment would not apply retroactively, appellee cites Lower Macungie Township Annexation Case (No. 1), 213 Pa. Superior Ct. 313, 248 A. 2d 58 (1968), for the proposition that new constitutional provisions of a restrictive nature apply prospectively only, allowing existing statutes, not expressly or impUedly repealed, to remain in full force and effect. Perkins v. Slack, 86 Pa. 270 (1878). The issue here differs in that appellant contends that a constitutional amendment repealing a prior restriction on legislative authority
See footnote 1, supra, 49 P.S. §1301.
See footnote 1, supra, 49 P.S. §1201(1).
Webster’s Third New Int’l. Dictionary (1969).
Indeed, a growing number of states have seen fit to include witbin tbe purview of tbeir mechanics’ lien statutes sueb work wbicb is preliminary to actual building construction. See, e.g., Cal. Civ. Code §§3106, 3110 (Supp. 1973) ; Hawaii Rev. Statutes, Title 28 §§507-41 (1955) ; Texas Rev. Civ. Stat. art. 5452 (Supp. 1961) ; Ill. Rev. Stat. ch. 82 §1 (1972).
See footnote 1, supra, 49 P.S. §1201(10).
See footnote 1, supra, 49 P.S. §1201(12) (a).
Sidewalks, alone, have never been regarded as “improvements” subject to lien. The Comment to the definition of “improvement” in the 1963 Act notes that “improvements such as sidewalks, yards, fences, walls” are “deemed included in the generic definition of ‘fixtures and other personal property used in fitting up and equipping [the improvement] for the purpose for which it is intended’.” This indicates the envisioning of there being a building or structure to be “fitted up”; a sidewalk would not as appellant contends, itself qualify under the Act as an improvement.
Indeed, the first mechanics’ lien statute in America was enacted to facilitate the construction of the city of Washington, D. C. See Cushman, The Proposed Uniform, Mechanics’ Lien Law, 80 U. of Pa. L. Rev. 1083 (1932).