Summary
confirming that "[n]o appeal lies from an order discharging a rule to strike off a mechanic lien as such order is interlocutory, not being a definitive decree or judgment. If a final order is made granting judgment on the scire facias sur mechanic lien, an appeal may be taken."
Summary of this case from Lunz v. Excel Cos. LeasingOpinion
April 15, 1958.
June 11, 1958.
Appeals — Interlocutory orders — Order discharging rule to strike off mechanics' lien — Words and Phrases — "Definite" — Mechanics' Lien Act.
1. An order discharging a rule to strike off a mechanics' lien is interlocutory, and an appeal does not lie therefrom.
2. Under § 59 of the Mechanics' Lien Act of June 4, 1901, P.L. 431 (which provides that an appeal may be taken by the party aggrieved from any definite judgment, order, or decree entered by the court of common pleas or from the refusal to open a judgment entered by default), the word "definite" is used in the sense of "definitive" as opposed to interlocutory.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeal, No. 72, April T., 1958, from order of Court of Common Pleas of Allegheny County, April T., 1957, No. 138, in case of Morris Lubetsky, liquidator of Morris Lubetsky et al., v. Edward S. Dean et ux. Appeal quashed.
Proceeding upon petition of defendants and rule to show cause why mechanic's lien should not be stricken, and upon petition of plaintiff and rule to show cause why complaint should not be amended.
Order entered dismissing rule to strike off mechanic's lien and making rule to amend absolute, before MARSHALL, WEISS and LEWIS, JJ., opinion by MARSHALL, J. Defendants appealed.
Louis Vaira, for appellants.
Saul Davis, for appellee.
Argued April 15, 1958.
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 off 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 off the lien. On a petition for reargument the court in banc revoked, vacated, and set aside its previous order and reinstated the mechanic's lien; defendants' rule to strike off 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 off a mechanic's lien as such order is interlocutory, not being a definitive decree or judgment. Breitweiser Company v. Scott, 33 Pa. Super. 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. Super. 582, 584. Section 59 of the Mechanics' Lien Act of June 4, 1901, P.L. 431, 49 P. S. § 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.