Summary
In Carocci, which appears to remain good law, the court held a pen and ink deletion will not "take precedence over positive language in the typewritten text."
Summary of this case from Services v. Fedex Ground Package System, Inc.Opinion
November 11, 1948.
January 3, 1949.
Practice — Mechanics' liens — Amendments — Deletions — Typewritten text — Waiver of liens — Withdrawal of exhibits filed.
In a mechanics' lien proceeding, in which the papers themselves showed a waiver of the right to file any lien as well as a covenant against liens and claimant sought to amend by showing certain ambiguous deletions (not eliminating the waiver) in the typewritten contract of the parties which did not appear in the copy filed, and by withdrawing exhibits filed with the original claim so that the waiver in the contract would not then be part of the pleadings, it was Held that the petition to amend the lien was properly dismissed.
Argued November 11, 1948.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 216, Jan. T., 1948, from order of Common Pleas No. 6, Philadelphia Co., June T., 1947, No. 1051, in case of Americo Carocci, trading as Roman Construction Company v. Ben Piccone et ux. Order affirmed.
Mechanics' lien claim.
The facts are stated in the opinion by FLOOD, J., of the court below as follows:
Claimant filed a mechanics' lien claim which upon its face was invalid since the papers themselves showed that there had been a waiver of the right to file any lien as well as a covenant against liens in the contract. Subsequently but more than six months after completion of the last of the work, claimant sought to amend his claim by showing certain deletions in the typewritten contract of the parties which did not appear in the copy filed. These deletions eliminated some pronouns referring to the contractor in certain paragraphs but they stopped far short of indicating an intention that there should be a right in the contractor to file a lien. The deletions are ambiguous and in other parts of the contract the contractor waived the right to file a lien.
Claimant argues that these pen and ink notations should take precedence over the typewritten waiver. I know of no rule of construction to the effect that a deletion in pen and ink should take precedence over positive language in the typewritten text. This is quite different from saying that a pen and ink alteration will take precedence over the typewriting. But, as we have said, in any event the deletions do no more than make the contract ambiguous. They do not in any sense eliminate the waiver.
Claimant also seeks to withdraw the exhibits filed with his original claim upon the theory that the waiver in the contract would then not be part of the pleadings and the matter could not be decided until the trial. Unfortunately for him, these exhibits even if strictly not necessary, are certainly not bad pleading, and since they are already of record, verified by claimant under oath, upon this motion the court must consider them along with the paper filed by him with his later motion.
Claimant's petition to amend the mechanics' lien claim is dismissed. Defendant's rule to strike off is granted and the claim is hereby stricken off.
Appeal by claimant to Supreme Court allowed.
Samuel I. Sacks, with him Isadore Gottlieb, for appellant.
Edward Unterberger, for appellees.
The order of the court below is affirmed on the opinion of Judge FLOOD.