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J-A30013-12 2012 PA Super 276 NEELU ENTERPRISES, INC. d/b/a KB BUILDERS, Appellant v. ASHOK AGARWAL AND ASHA AGARWAL, HUSBAND AND WIFE, Appellees : : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 787 MDA 2012

Appeal from the Order Entered March 27, 2012, In the Court of Common Pleas of Cumberland County, Civil Division, at No. 11-5233. BEFORE: SHOGAN, LAZARUS and OTT, JJ. OPINION BY SHOGAN, J.: Filed: December 18, 2012

Appellant, Neelu Enterprises, Inc. d/b/a KB Builders, appeals from the trial court's March 27, 2012 order sustaining Appellees', Ashok and Asha Agarwal's, preliminary objections to Appellant's mechanics' lien claim and dismissing Appellant's claim. We affirm. The trial court set forth the relevant factual and procedural history as follows: Neelu Enterprises, Inc., d/b/a KB Builders (hereinafter "Claimant") filed a Mechanics' Lien claim on June 23, 2011, against certain real property located at 2212 Eaglesmoor Lane, Hampden Township, Enola, PA 17025, in order to obtain payment for residential construction work performed on that property owned by Ashok and Asha Agarwal (hereinafter "Owners"). (Mechanics' Lien Claim, filed Jun. 23, 2011). The

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Claimant avers that, in November of 2008, the parties entered into a Construction Agreement for the building of a residential home, a copy of which was attached to the Claim, and that Claimant did complete a substantial portion of the work, for which it received payment in the amount of $585,000. (Mechanics' Lien Clam, filed Jun. 23, 2011). Furthermore, Claimant avers that after it began construction of the home, yet prior to its completion, the Defendant Owners informed Claimant that their Agreement was being terminated, effective immediately, and that the Owners thereafter "brought in their own subcontractors ..." to finish the work on the new home construction. (Mechanics' Lien Clam, filed Jun. 23, 2011). As evidence thereof, the president of Claimant's business and the Owners signed a one page, hand-written agreement, dated December 8, 2010, whereby Claimant and Owners "acknowledged that Agarwals were terminating Neelu's construction services and that Agarwals would be dealing with the subcontractors directly." (Termination Agreement, Claimant's Response, Ex. B, filed Dec. 12, 2011). As a result of the ousting, Claimant seeks the sum total of $96,000, which is based upon the denied profit remaining on the contract plus $20,000, which Claimant avers is due and owed to it for the purchase and installation of additional casement windows. Owners have responded to the Mechanics' Lien Claim with preliminary objections, seeking, first, that the claim be stricken because it was filed more than six months after the completion of the work on the project and is thus in violation of the Mechanics' Lien Law, and, second, that the claim be stricken because of an alleged waiver by the Claimant of its right to file a mechanics' lien claim. (Preliminary Objections, filed Sep. 23, 2011). In their Preliminary Objections, Owners assert that the Claim is untimely because, although the Claim alleges that work was performed on the property from November 8, 2009 through January 10, 2011 by Neelu and its subcontractors, neither Claimant nor its subcontractors performed any work on the property after October of 2010. (Preliminary Objections, 10, filed Sep. 23, 2011). Owners allege that Claimant had instead resigned as general contractor for the construction work on December 8, 2010, and, as evidence thereof, the parties signed the one page, hand-written agreement, whereby Claimant and Owners "acknowledged that Agarwals were terminating Neelu's construction services and that Agarwals would be dealing with -2-

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the subcontractors directly." (Termination Agreement, Claimant's Response, Ex. B, filed Dec. 12, 2011). Because the Mechanics' Lien Claim was not filed until June 23, 2011, the Owners seek a demurrer, as the claim was not filed within six months after the completion of the work performed. Trial Court Opinion, 2/8/12, at 1-2. In a February 29, 2012 hearing on

Appellees' preliminary objections, the trial court heard testimony on the question of when Appellant completed its work on Appellees' house in order to determine whether Appellant timely filed its mechanics' lien claim. Thereafter, the court issued an order sustaining Appellees' preliminary objections and dismissing Appellant's claim. Appellant then filed this timely appeal. Appellant presents the following issues for this Court's consideration: A. Based in part on the erroneous conclusion that the construction contract had been terminated, did the lower court make an erroneous conclusion of fact and law under 49 P.S. Section 1201(8) that the performance of the last of the labor and the delivery of the last of the materials to the construction site occurred within the six (6) months prior to the filing of the mechanics' lien[?] At the preliminary objection stage, was it appropriate or necessary for the lower court to reach the conclusion that the construction contract between the plaintiff and defendants was terminated? Should the lower court have interpreted the preliminary objections in a light most favorable to the plaintiff and unless the facts were free from doubt?

B.

C.

Appellant's Brief at 10. (Verbatim).

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At the outset, we note that although Appellant sets forth the three questions above as independent issues, it acknowledges that it, in fact, "asserts three (3) primary arguments in support of its position that [Appellant's] mechanics' lien was filed timely." Appellant's Brief at 17.

Indeed, on review of Appellant's brief, it is clear that it seeks to challenge the conclusions reached by the trial court we in sustaining give Appellees' to

preliminary

objections.

Accordingly,

shall

consideration

Appellant's "issues" as argument in support of its claim of trial court error in sustaining Appellees' preliminary objections. Our standard of review for an order dismissing a mechanics' lien claim based upon a preliminary objection in the nature of a demurrer is as follows: When reviewing the dismissal of a [mechanics' lien claim] 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. Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott's Development Co., 41 A.3d 16, 22 (Pa. Super. 2012) (quoting Ira G. Steffy & Son, Inc. v. Citizens Bank of Pennsylvania, 7 A.3d 278, 282 (Pa. Super. 2010)).

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As noted above, Appellant's principle claim is that it timely filed its mechanics' lien claim and the trial court's conclusion to the contrary was erroneous. Appellant's Brief at 17. Our analysis begins, as it must, with the provision of the Mechanics' Lien Law of 1963 controlling the timeliness of claims raised under the law. Specifically, the Mechanics' Lien Law provides as follows:

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