Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Di Mondi v. S. & S. Builders, Inc.

Supreme Court of Delaware

June 25, 1956

Pasquale DI MONDI, John Di Mondi and Joseph Di Mondi, trading as Delaware Block Company, Appellants,
v.
S. & S. BUILDERS, Inc., a corporation of the State of Delaware, and Frank Cresto, Appellees. Carroll POOLE, trustee in bankruptcy of Capitol Block & Supply Co., Inc., a corporation of the State of Delaware, Appellant,
v.
OAK LANE MANOR, Inc., a corporation of the State of Delaware, et al., Appellees. Tony PALADINETTI, Appellant,
v.
OAK LANE MANOR, Inc., a corporation of the State of Delaware, et al., Appellees.

Page 726

[50 Del. 125] Writs of Error to the Superior Court of New Castle County.

[50 Del. 124] Januar D. Bove, Jr., Wilmington, for Delaware Block Co.

C. Waggaman Berl, Jr., Wilmington, for Capitol Block & Supply Co., inc.

Nathan P. Michlin, Wilmington, for Tony Paladinetti.

David Snellenburg, 2nd, Wilmington, for S. & S. Builders, Inc. and Frank Cresto.

Harry Rubenstein, Howard M. Handelman and James J. Walsh, for Oak Lane Manor, Inc. and others.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

[50 Del. 125] WOLCOTT, Justice.

These three appeals were consolidated for argument because their facts raise identical questions of law. All are appeals from orders of the Superior Court of New Castle County entering judgment for the defendant in actions seeking to establish mechanics' liens.

Page 727

The facts of the three cases differ in detail, but the essential facts are the same. Each of the plaintiffs furnished labor or materials for several different houses being constructed as part of a housing development. Each complaint alleges the time when the labor or material was first furnished for the construction, and each alleges the time when the last labor or material was furnished. Each complaint purports to apportion the total amount claimed between the individual houses in the development, but does not attempt to designate the beginning and completion dates for each house. [1] All of the complaints were filed several days before the expiration of a period of ninety days from the last date on which labor or materials were furnished by each of the plaintiffs.

In two of the cases [2], judgment was entered for the defendants on the ground that the complaint had not set forth the time when the furnishing of materials or labor was commenced and the time when it was finished as to each of the individual structures identified in the complaints. In the Paladinetti case, judgment was entered for the defendant as to each of five houses on which the bill of particulars showed the ninety-day period of limitations had run.

[50 Del. 126] The appellants present two questions of law for our decision as follows:

1. Does the Delaware Mechanics' Lien Law, 25 Del.C. §§ 2701-2723, provide for one lien where materials or labor are furnished for the construction of more than one structure in a building development, which lien must be apportioned among the individual structures?

2. Does the Delaware Mechanics' Lien Law permit, when materials or labor are furnished under a continuous or recurring account for the construction of more than one structure in a building development, the filing of a lien within ninety days of the last day of furnishing such materials or labor?

We will take up the questions in the order stated.

Under question No. 1, the plaintiffs argue that the Delaware Mechanics' Lien Law provides, in cases where materials or labor are furnished to structures being erected as part of a building development, for a modified unitary type of lien which must be apportioned among the individual structures concerned. This argument is made in an effort to avoid the implications of our holding in Warner Co. v. Leedom Construction Co., 9 Terry 58,97 A.2d 884, that the Delaware law does not permit the filing of a single lien upon a group of buildings being erected as a single building development.

In the Warner Co. case, we had before us an attempt to impose a single lien for material supplied to eighty-seven individual structures, comprising a single development, among which the plaintiff could not apportion the value of materials supplied. We held that 25 Del.C. § 2713 permitting the filing of a joint claim against two or more structures could not be availed of unless the requirement of apportionment of the claim between the structures could be met. In so holding, we decided that our statute required that the so-called unitary doctrine of mechanics' liens must be rejected. We did not have before us, however, in that case the precise question now raised, that is, assuming the [50 Del. 127] requirement of apportionment between structures can be met, whether a single lien may be filed covering all the structures.

The argument of appellants under question No. 1 is based primarily upon 25 Del.C. § 2713 which provides as follows:

Page 728

'In every case in which one claim for labor or materials is filed by the same person against two or more structures owned by the same person, for building, altering or repairing two or more structures owned by the same person, the claimant shall, at the time of filing such joint claim, designate the amount which he claims to be due to him on each of such structures.'

The appellants argue that § 2713 permits a claimant in one proceeding to join together several claims upon different structures and impose a single lien upon the development as a whole, which must be apportioned in amount between the different structures involved. Appellants, also, point to Form 12 of the Rules of Civil Procedure of the Superior Court, Del.C.Ann., which on its face provides a form for a suit to obtain a mechanics' lien upon two or more structures by pleading the commencement and finishing time of the furnishing of the materials upon the construction project as a whole and not as to the individual structures.

We think appellants place undue emphasis upon Form 12, for even if it be assumed it means what appellants say it means, it would not have the effect of authorizing the imposition of a unitary lien unless such a lien is authorized by the statute. The answer is therefore to be found in § 2713 which, say the appellants, authorizes the imposition of a single lien upon the whole development apportioned as to amount between the individual structures.

We think we impliedly rejected the appellants' position in the Warner Co. case when we held that the Delaware statute did not authorize a single lien upon a group of buildings. We think the provisions of the statute require this conclusion.

[50 Del. 128] 25 Del.C. § 2718(a) provides that a judgment for the plaintiff in a mechanics' lien proceeding shall be a lien upon the structure relating back to the day when the furnishing of labor or material was commenced. This provision makes it necessary for the plaintiff to set forth that date with particularity, since, otherwise, there is no means by which priority of liens may be determined. Since this is so, it is obvious, we think, that the statute does not contemplate the imposition of a single lien apportioned as to amount among individual structures, since the statute is clear that as to any particular structure over which a lien is claimed, that lien dates back to the day when labor or materials were first furnished for that particular structure.

Nor do we think there is anything in § 2713 which changes this fact. This section, originally enacted in 1879, at a time when Delaware courts were laboring under strict Common Law rules of procedure, we think was intended solely as a procedural device to permit the bringing of several different claims for mechanics' liens in one proceeding. This conclusion is strengthened by the language of § 2713. The authority given is not to file a proceeding for the imposition of a single lien against two or more structures, but is merely to file a 'joint claim' for two or more separate liens against separate structures. As originally enacted, § 2713 was one sentence of a larger paragraph which, inter alia, provided for a single lien upon an individual structure relating back to the day when the labor or materials was first furnished. See 1935 Code, § 3324. Under the circumstances, we think appellants seek to read into § 2713 far more than was ever intended. Nor, do we think the re-enactment of § 2713 as part of the Code of 1953, after the promulgation of Form 12 of the Superior Court, helps the appellant. The whole matter of joining claims for liens is procedural, while the right to a unitary lien is substantive.

It is true that in the Warner Co. case we said that a joint lien on two or more structures may be obtained under § 2713, provided a proper apportionment is made. It would have been more precise to have stated that a joint claim for separate liens [50 Del. 129] may

Page 729

be filed, which is what we intended. In that case, we were primarily concerned with the requirement of apportionment of claims among separate structures and did not have before us the precise question now raised.

We hold, therefore, that the answer to question No. 1 is that our Mechanics' Lien Law ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.