Particularly with the recent amendments to the Pennsylvania Mechanics' Lien Law of 1963 (49 P.S. § 1101–1902, the "Lien Law"), any appellate decision construing the meaning of the Lien Law and its original and amended language can be considered a significant event. All decisions in this area, particularly appellate determinations, guide construction industry participants and their counsel in either positioning the project to be free from lien exposure or to maximize the Lien Law's potential for claim recovery should a contractor or subcontractor remain unpaid for services, labor and materials provided to a project. The Superior Court of Pennsylvania's recent decision in B.N. Excavating, Inc. v. PBC Hollow-A, L.P.1 adds a new chapter to the history of potential lien claims in the state, albeit not without some controversy and a lengthy dissent.
The matter involved a lien filed by B.N. Excavating ("BNE") for approximately $119,000. BNE is, as its company title suggests, a site-preparation contractor, performing services for the general contractor on a development project located in Montgomery County, Pa. BNE asserted in its lien that it was providing "labor and materials for excavation work, including but not limited to a silt fence, temporary riser, emergency spillway, topsoil stripping, cut and fill, concrete pipe, subgrading for building pad, storm water bed, rock ribbing and other site work." Preliminary objections to BNE's lien claim immediately followed; and the trial court, relying on another superior court decision, Sampson-Miller Associated Companies v. Landmark Realty Co., sustained the preliminary objections to the lien claim. The core basis for the trial court's determination was its conclusion that because the mechanic's lien claim was for excavation performed incident to a planned construction never actually erected, the lien claim was barred by the Sampson-Miller decision. Sampson-Miller had "held that the plain words of the Mechanics' Lien Law established that 'no lien can attach to land for work unconnected to the construction of a building.' In reaching this conclusion, the Sampson-Miller court first considered the statutory definition of erection, construction, alteration, or repair pursuant to 49 P.S. § 1201(12)(a), which included, inter alia, excavation 'when such work is incidental to . . . erection, construction, alteration or repair.'"
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