Mechanics Liens For Excavation Work

An excavator’s, landscaper’s, or demolition contractor’s right to a mechanics lien in Pennsylvania is a tricky question because, unlike typical trade contractors,  there is not a per se right to a mechanics lien for excavating, demolition, or landscaping. The Mechanics Lien Law states  erection, construction, alteration, or repair work includes demolition, excavation, and landscaping only “when such work is incidental to the erection, construction, alteration, or repair” of a building.  For years, this was accepted to mean that a building must actually be completed before a mechanics lien for demolition, excavation, or landscaping would attach.

However, as first blogged about by Robert Ruggieri across the street at Cohen Seglias, the Pennsylvania Superior Court recently issued an opinion stating that the completion of a building is not a prerequisite to an excavating contractor’s right to a mechanics lien.

In B.N. Excavating, Inc. v. PBC Hollow-A, L.P., 2011 WL 2190768 (Pa.Super.2011), the Superior Court overturned the trial court’s dismissal of a mechanics lien claim of an excavating contractor on a project that was never completed.  The trial court reasoned that in order for claimant’s work to be “incident” to construction a building must be completed.  The Superior Court squarely rejected this reasoning stating:

“we do not interpret the [Mechanics Lien Law] . . . as creating a bright-line rule that a mechanic’s lien can never attach to land absent an erected structure.”

The Superior Court declined to equate the Mechanics Lien Law’s phrase “incidental to the erection [or] construction” with the requirement that the structure actually exist.  The Court found more important whether the excavation work was performed “in preparation for planned construction.”

This decision has obvious implications on the myriad of projects that are left half finished because of lending issues.  It also raises the question as to whether landscapers and paving contractors should file mechanics liens and argue for a more liberal interpretation of the definition of “erection, construction, alteration, or repair.”