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JOHN B. KELLY, INC. v. PHOENIX PLAZA, INC.

249 Pa.Super. 413 (1977)

378 A.2d 363

JOHN B. KELLY, INC. of Pennsylvania, Subcontractor v. PHOENIX PLAZA, INC., Phoenix Plaza Associates and B. Bornstein & Sons, Inc., Owner or Reputed Owner and B. Bornstein & Sons, Inc., Contractor. JOHN B. KELLY, INC. of Pennsylvania, Contractor v. PHOENIX PLAZA, INC., Phoenix Plaza Associates, and B. Bornstein & Sons, Inc., Owners or Reputed Owners. Appeals of JOHN B. KELLY, INC. of Pennsylvania.

Superior Court of Pennsylvania.

Decided October 6, 1977.

Attorney(s) appearing for the Case

Russell D. Henkin, Philadelphia, with him David Berger, Philadelphia, for appellant.

Melva L. Mueller, West Chester, for appellees, Phoenix Plaza, Inc., Phoenix Plaza Associates.

No appearance entered nor brief submitted for appellee, B. Bornstein & Sons, Inc.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

JACOBS, Judge:

This appeal raises two issues. May a waiver of mechanics' liens be raised by preliminary objections to the claim and, if so, was this a proper case in which to strike the lien. We hold that the waiver could be raised in this case by preliminary objections but that the lower court improperly struck the claim. We will reverse and remand.

On July 6, 1974, appellant, John B. Kelly, Inc., of Pennsylvania, (hereinafter Kelly) entered into a contract...

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