Lubetsky v. DEAN

Superior Court of Pennsylvania

Lubetsky v. DEAN

142 A.2d 359, 186 Pa. Super. 158, 1958 Pa. Super. LEXIS 451

CourtSuperior Court of Pennsylvania

DecidedJune 11, 1958

DocketAppeal, 72

StatusPublished

Cited by5 cases

This text of 142 A.2d 359 (Lubetsky v. DEAN) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lubetsky v. DEAN, 142 A.2d 359, 186 Pa. Super. 158, 1958 Pa. Super. LEXIS 451 (Pa. Ct. App. 1958).

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Opinion

Per Curiam,

This is an appeal from an order of the court below refusing to strike from the record a mechanic’s lien and allowing plaintiff to amend.

Defendants as owners filed a petition to strike cf. a mechanic’s lien as originally filed on the grounds that the materials furnished were not sufficiently described, that the building was not properly described, and that the affidavit of service of notice of filing the lien was defective. Plaintiff filed an answer to defendants’ petition, and also a petition to amend. After argument the court below granted defendants’ petition to strike cf. the lien. On a petition for reargument the court in banc revoked, vacated, and set aside its *160 previous order and reinstated the mechanic’s lien; defendants’ rule to strike cf. the lien was dismissed and plaintiff’s rule to amend his claim was made absolute.

Plaintiff has filed a motion to quash defendants’ appeal. No appeal lies from an order discharging a rule to strike cf. a mechanic’s lien as such order is interlocutory, not being a definitive decree or judgment. Breitweiser Company v. Scott, 33 Pa. Superior Ct. 627. If a final order is made granting judgment on the scire facias sur mechanic’s lien, an appeal may be taken. Miller v. Fitz, 41 Pa. Superior Ct. 582, 584. Section 59 of the Mechanics’ Lien Act of June 4, 1901, P. L. 431, 49 PS §266, provides : “From any definite judgment, order or decree, entered by the court of common pleas under any of the provisions of this act, or from the refusal to open a judgment entered by default, an appeal may be taken by the party aggrieved to the supreme court or superior court, as in other cases.” The word “definite” in the Act is used in the sense of “definitive” as opposed to interlocutory. Kurrie v. Cottingham, 209 Pa. 12, 57 A. 1106.

The appeal is quashed, and the record is remitted to the court below.

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Opinion

Per Curiam,

This is an appeal from an order of the court below refusing to strike from the record a mechanic’s lien and allowing plaintiff to amend.

Defendants as owners filed a petition to strike cf. a mechanic’s lien as originally filed on the grounds that the materials furnished were not sufficiently described, that the building was not properly described, and that the affidavit of service of notice of filing the lien was defective. Plaintiff filed an answer to defendants’ petition, and also a petition to amend. After argument the court below granted defendants’ petition to strike cf. the lien. On a petition for reargument the court in banc revoked, vacated, and set aside its *160 previous order and reinstated the mechanic’s lien; defendants’ rule to strike cf. the lien was dismissed and plaintiff’s rule to amend his claim was made absolute.

Plaintiff has filed a motion to quash defendants’ appeal. No appeal lies from an order discharging a rule to strike cf. a mechanic’s lien as such order is interlocutory, not being a definitive decree or judgment. Breitweiser Company v. Scott, 33 Pa. Superior Ct. 627. If a final order is made granting judgment on the scire facias sur mechanic’s lien, an appeal may be taken. Miller v. Fitz, 41 Pa. Superior Ct. 582, 584. Section 59 of the Mechanics’ Lien Act of June 4, 1901, P. L. 431, 49 PS §266, provides : “From any definite judgment, order or decree, entered by the court of common pleas under any of the provisions of this act, or from the refusal to open a judgment entered by default, an appeal may be taken by the party aggrieved to the supreme court or superior court, as in other cases.” The word “definite” in the Act is used in the sense of “definitive” as opposed to interlocutory. Kurrie v. Cottingham, 209 Pa. 12, 57 A. 1106.

The appeal is quashed, and the record is remitted to the court below.

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Bluebook (online)

142 A.2d 359, 186 Pa. Super. 158, 1958 Pa. Super. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lubetsky-v-dean-pasuperct-1958.

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