Kelly L. Makowka v.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-3469

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In re: KELLY L. MAKOWKA,

Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-12-cv-02232)

District Judge: Honorable Robert D. Mariani

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Submitted Under Third Circuit LAR 34.1(a)

May 27, 2014

Before: HARDIMAN, SLOVITER

and BARRY, Circuit Judges.

(Opinion Filed: June 9, 2014)

J. Zac Christman

Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri

712 Monroe Street

P.O. Box 511

Stroudsburg, PA 18360

Attorney for Debtor-Appellant

Gino L. Andreuzzi

518 Alter Street

Hazleton, PA 18201

Attorney for Defendant-Appellee

Charles J. DeHart, III

P.O. Box 410

Hummelstown, PA 17036

Chapter 13 Trustee

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OPINION

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HARDIMAN, Circuit Judge.

This appeal requires us to interpret a state statute—the

Pennsylvania Uniform Planned Community Act (UPCA), 68

Pa. Cons. Stat. §§ 5101–414—in the bankruptcy context.

Appellant Kelly Makowka seeks in Chapter 13 proceedings to

avoid a portion of claims made by her homeowners

association, Pocono Mountain Lake Estates Community

Association (the Association). The Bankruptcy Court, in an

order affirmed by the District Court, held that the Association

had a valid statutory lien on Makowka’s residence pursuant to

the UPCA, which the Association had enforced by obtaining

judgments in debt against Makowka in state court. For the

reasons that follow, we will vacate the District Court’s

judgment and remand for further proceedings.

2

I

Makowka owns a home in Pocono Mountain Lake

Estates in Pike County, Pennsylvania, a planned community

as defined under the UPCA. In 2005, she fell behind on her

homeowners association dues, which began to accrue late

charges. In April 2008, the Association sued Makowka in the

Pike County Magisterial District Court to collect a portion of

the unpaid dues and obtained a default judgment of

$2,436.70. As additional dues went unpaid, the Association

sued Makowka again in April 2010 and obtained another

default judgment, this time worth $3,599.08. Both judgments

were transferred to the Court of Common Pleas of Pike

County, which issued a writ of execution and attachment.

Pursuant to that writ, a sheriff’s sale of Makowka’s property

was scheduled for September 14, 2011.

Two days before the sheriff’s sale, Makowka filed a

Chapter 13 petition in the United States Bankruptcy Court for

the Middle District of Pennsylvania. In her proposed

bankruptcy plan, 1 Makowka moved to avoid the

Association’s claims under 11 U.S.C. § 522(f), which

releases a debtor from obligations imposed by judicial liens

1

Makowka proposed two bankruptcy plans that were

rejected by the Bankruptcy Court before submitting her

Second Amended Plan, which is the subject of this appeal.

While this appeal was pending, Makowka proposed two

amended plans. The Fourth Amended Plan is awaiting

approval by the Bankruptcy Court and presumes that

Makowka’s appeal to this Court is successful. The

Bankruptcy Court has stayed proceedings pending the

outcome of this appeal.

3

(i.e., money judgments) as well as non-possessory, non-

purchase money security interests. Although Makowka

acknowledged that Section 5315 of the UPCA granted the

Association a self-executing statutory lien on her residence in

the amount of the unpaid dues, she claimed that a portion of

that lien had been extinguished by law because the

Association had failed to foreclose on the lien within the

statutory period of three years. Therefore, to the extent the

Association’s claims represented fees due before September

12, 2008, i.e., three years before the date of her bankruptcy

petition, Makowka contended that the Association had

obtained dischargeable money judgments.

The Bankruptcy Court denied Makowka’s motion,

ruling that the Association had preserved its statutory lien. In

an oral opinion, the Bankruptcy Court noted that it was

“bound by Pennsylvania [a]ppellate decisions construing” the

UPCA. These included the Pennsylvania Superior Court’s

decision in Forest Highlands Community Association v.

Hammer, 903 A.2d 1236 (Pa. Super. Ct. 2006), which the

Bankruptcy Court read to enable “an association . . . [to]

perfect or enforce the lien for the unpaid assessments in a

variety of manners, . . . [including] an action in debt.” App. at

56 (discussing Hammer, 903 A.2d at 1240). The Bankruptcy

Court also opined that a foreclosure action would be “odd” in

the UPCA context, as the Association did not hold a mortgage

upon which it could foreclose. It thus “reject[ed] the debtor’s

argument that the mortgage foreclosure action would be the

exclusive remedy.” Id. As a result, the Bankruptcy Court

allowed the Association’s unavoidable claim of $7,835.82,

which represented the value of the money judgments, accrued

unpaid debts, and interest at the time of the order. Makowka

moved for reconsideration. When that motion was denied, she

4

timely appealed to the United States District Court for the

Middle District of Pennsylvania.

The District Court affirmed. Turning first to the text of

Section 5315, the District Court agreed that it supported

Makowka’s position that foreclosure was the exclusive

method to enforce the statutory lien. After noting that the

Pennsylvania Supreme Court had not yet addressed the

question on appeal, the Court considered the relevant state

intermediate court decisions—the Pennsylvania

Commonwealth Court’s decision in London Towne

Homeowners Association v. Karr, 866 A.2d 447 (Pa.

Commw. Ct. 2004), and the Pennsylvania Superior Court’s

decision in Hammer—for guidance as to how the

Pennsylvania Supreme Court would rule.

The District Court adopted a narrow interpretation of

Karr, reading the opinion to hold “that while an association

may pursue an action in debt or contract against a tenant

under 5315(f) to recover sums under a lien, ‘[t]he first step to

enforcing an assessment lien is the filing of a foreclosure

complaint.’” App. at 6 (quoting Karr, 866 A.2d at 453)

(emphasis in original). It then found that Hammer

“expand[ed] upon the rationale of Karr” and “clearly held

that by filing an action in debt or contract, an association was

enforcing its lien under the UPCA.” App. at 7 (discussing

Hammer, 903 A.2d at 1241). The District Court criticized the

Superior Court’s decision, opining:

The Hammer court, in holding that the action in

debt to collect unpaid assessments . . . satisfied

the [enforcement] requirement in Section

5315(e) . . . ignored the well-established and

fundamental distinction between proceedings in

5

rem and those brought in personam. It is

difficult for this Court to understand how an

action brought under Section 5315(f) “to

recover sums for which subsection (a) creates a

lien” can be considered a “proceeding[] to

enforce the lien” for those unpaid assessments.

App. at 8. Despite its disapproval, the District Court thought

it bound by Hammer because the decision “presents the latest

and most definitive ruling by the intermediate courts of

Pennsylvania with respect to the interpretation of Section

5315.” Id. “[B]ecause the issue before this Court is

unquestionably a matter of Pennsylvania law, it will give

Hammer the binding effect that it must.” Id. (emphasis

added). For that reason alone, the District Court predicted that

“[b]ecause the Pennsylvania Superior Court was clear in its

holding and there appears to be no authority contrary to

Hammer,” the Pennsylvania Supreme Court would not

overturn Hammer. App. at 8 n.5.

Following the District Court’s order, Makowka filed

this timely appeal.

II

The Bankruptcy Court had jurisdiction pursuant to 28

U.S.C. § 1334, and the District Court reviewed the

Bankruptcy Court’s order under 28 U.S.C. § 158(a)(1). We

have jurisdiction over this appeal pursuant to 28 U.S.C. §§

158(d) and 1291.

Because the District Court sat as an appellate court

reviewing the Bankruptcy Court’s order, we exercise plenary

review over its decision. In re Continental Airlines, 125 F.3d

6

120, 128 (3d Cir. 1997). Like the District Court, we review

the Bankruptcy Court’s legal determinations—such as the

matter of statutory interpretation before us—de novo. See In

re Heritage Highgate, Inc., 679 F.3d 132, 139 (3d Cir. 2012).

III

Under the UPCA, an “association has a lien on a unit

for any assessment levied against that unit or fines imposed

against its unit owner from the time the assessment or fine

becomes due. The association’s lien may be foreclosed in a

like manner as a mortgage on real estate.” 68 Pa. Cons. Stat. §

5315(a). The lien does not exist in perpetuity, however,

because the statute provides that “[a] lien for unpaid

assessments is extinguished unless proceedings to enforce the

lien are instituted within three years after the assessments

become payable.” Id. § 5315(e). Even if the lien is

extinguished, “[n]othing in [Section 5315] shall be construed

to prohibit actions or suits to recover sums for which

subsection (a) creates a lien or to prohibit an association from

taking a deed in lieu of foreclosure.” Id. § 5315(f).

The question sub judice is whether the Association

enforced its statutory lien against Makowka when it sued her

in debt. The parties agree that Makowka’s unpaid dues gave

rise to a self-executing lien, and that the lien would have been

extinguished by law absent any action by the Association

within three years. But they disagree as to what actions

qualify as “proceedings to enforce the lien” under subsection

(e) of the statute. Makowka contends that there is only one

way to enforce the lien: by filing a foreclosure complaint. If

she is correct, she is subject only to the portion of the

Association’s lien for unpaid dues that has not been

extinguished—namely, for the fees that came due after

7

September 12, 2008, three years before her Chapter 13

petition was filed. The Association, in contrast, argues that

the UPCA permits multiple methods of enforcement under

subsection (e). If that is so, its state court actions tolled the

extinguishment period, and it holds a statutory lien for the

total sum of the unpaid dues, plus late fees and interest.

A

We begin by noting that although the issue on appeal

is a matter of state law, it has practical import in bankruptcy.

As the Association correctly notes, an action to enforce the

statutory lien through foreclosure generally has the same

effect as a judgment in debt or contract, insofar as both enable

an association to collect unpaid dues from a delinquent

homeowner. In bankruptcy, however, the debtor may modify

her obligations for certain categories of claims. In this

context, the often inconsequential distinction between

enforcement and alternate remedies under Section 5315

determines whether an association may retain an unavoidable

lien on its resident’s property or has a mere unsecured claim

against her—the difference, as the parties here recognize,

between potential payment and nonpayment. Given the

significance of this state-law question in bankruptcy, we find

it appropriate to resolve it here.

As the District Court noted, the Pennsylvania Supreme

Court has not yet spoken to the issue presented in this case;

therefore, “we must attempt to predict how that tribunal

would rule.” U.S. Underwriters Ins. Co. v. Liberty Mut. Ins.

Co., 80 F.3d 90, 93 (3d Cir. 1996). In doing so, we give due

deference to the decisions of intermediate state courts. See id.

(quoting Winterberg v. Transp. Ins. Co., 72 F.3d 318, 322 (3d

Cir. 1995)). State appellate decisions, however, are not

8

controlling: “while we may not ignore the decision of an

intermediate appellate court, we are free to reach a contrary

result if, by analyzing other persuasive data, we predict that

the State Supreme Court would hold otherwise.” Gruber v.

Owens-Illinois Inc., 899 F.2d 1366, 1369 (3d Cir. 1990)

(alterations, internal quotation marks, and citation omitted).

Such persuasive data may include, inter alia, “what the

Pennsylvania Supreme Court has said in related areas” and

“the ‘decisional law’ of the Pennsylvania intermediate

courts.” Id. at 1369–70.

Our precedent, therefore, is clear that a federal court

interpreting state law may discount state appellate decisions it

finds flawed, if it predicts the state supreme court would

reach a contrary result. Here, the District Court properly

considered the relevant decisions from intermediate courts of

equal authority: the Commonwealth Court’s opinion in Karr

and the Superior Court’s opinion in Hammer. But it

improperly concluded that Hammer had “binding effect”

merely because the case “presents the latest and most

definitive ruling by the intermediate courts” on the

interpretation of Section 5315. See App. at 8. Because it was

not, in fact, bound by a decision of the intermediate appellate

court, the District Court gave Hammer too much weight,

particularly in light of its own cogent critique of the Superior

Court’s analysis.

Consistent with the District Court’s concerns, we

decline to adopt Hammer because it is internally inconsistent,

it conflicts with the text and structure of Section 5315, and it

contravenes a fundamental precept of Pennsylvania law. We

adhere instead to the more persuasive analysis presented by

the Commonwealth Court in Karr. Accordingly, we predict

that the Pennsylvania Supreme Court would hold that an

9

action in debt does not constitute a proper method to enforce

a statutory lien under the UPCA, and that Makowka may

avoid the Association’s claims in bankruptcy.

B

In Karr, a homeowners association sought to collect

unpaid dues from a resident by recording a second lien

against his property, and the resident moved to strike this

second lien. 866 A.2d at 448–50. The Commonwealth Court,

following a close reading of Section 5315, held that the

association’s second lien was invalid. In her opinion for the

Court, Judge Leavitt explained the distinction between

“proceedings to enforce”—namely, a foreclosure action—and

other remedies to collect. Id. at 452. She wrote that

“[e]nforcement of an association lien is directly addressed in

the Act” by subsection (a): “The association’s lien may be

foreclosed in a like manner as a mortgage on real estate.” Id.

at 451–52 (emphasis in original removed). This, however, did

not preclude other remedies: “an association may also pursue

payment of unpaid assessments by employing remedies less

drastic than foreclosure. It is free, for example, to bring an

action in debt or in contract to collect an assessment.

Subsection (f) provides for such remedies. . . .” Id. at 452

(emphasis added).

Having distinguished methods to enforce the lien,

which are described in subsection (a), and alternative

remedies, which are preserved in subsection (f), the Karr

court held that the association’s second lien “did not advance

[its] enforcement of its [statutory] lien by foreclosure in ‘like

manner as a mortgage on real estate.’” Id. (quoting 68 Pa.

Cons. Stat. § 5315(a)). Rather, it found that an association

seeking to enforce its lien had to “strictly follow[]” the

10

procedural requirements of Pennsylvania Rules of Civil

Procedure 1141–50, which govern mortgage foreclosure

actions. Id. Where the rules require a claimant to include

information specific to a mortgage, the Karr court instructed,

the association could substitute the UPCA’s analogues: for

example, the association could point to the deed giving rise to

the UPCA lien (termed the “UPCA declaration”) in lieu of the

mortgage. 2 Id. Thus, “[t]he first step to enforcing an

assessment lien is the filing of a foreclosure complaint.” Id. at

453 (quoting Pa. Cons. Stat. § 5315(a)).

The Superior Court’s decision in Hammer purported to

adhere to Karr’s reasoning, but expanded without explanation

an association’s available methods of enforcement to include

actions in debt and contract. There, the homeowners

association attempted to execute a sheriff’s sale on its

resident’s property to collect unpaid dues; the association

argued that its perfected lien pursuant to the UPCA obviated

the need to file a complaint. Hammer, 903 A.2d at 1237,

1239. In response, the resident moved to set aside the

association’s writ of execution because she had not received

notice of the lien. Id. at 1237. The Hammer court found for

the resident after phrasing the dispositive question thusly:

“whether instigating a sheriff’s sale perfects an already

perfected assessment lien and substantially complies with the

requirements of [the] UPCA to allow enforcement of [the

association’s] assessment lien.” Id. at 1239 (internal quotation

marks omitted).

2

For this reason, irrespective of the validity of the

Bankruptcy Court’s observation that foreclosure would be an

“odd procedural mechanism,” we find it consistent with the

language of the UPCA. See App. at 56.

11

The Superior Court answered in the negative. The

association’s failure to file suit, it held, violated the resident’s

due process rights: “institut[ing] suit by mortgage foreclosure

or fil[ing] an action in debt or contract . . . provide[s] [the

resident] with ‘notice’ of the debt . . . and/or a means to deny

liability.” Id. at 1241. The court also found support in Section

5315, borrowing heavily from the Commonwealth Court’s

analysis in Karr. At first, its reasoning mirrored the prior

decision:

Enforcement of an association lien is directly

addressed by [the] UPCA, which states, as

herein relevant: “The association’s lien may be

foreclosed in a like manner as a mortgage on

real estate.” . . . [A]n association is not

precluded from pursuing other avenues to

obtain payment of assessments less drastic than

foreclosure. For example, an association can

avail itself of an action in debt or in contract to

collect an assessment. Subsection (f) of the

UPCA provides support for such alternative

remedies . . . .

Id. at 1239–40 (citations omitted) (emphasis in original).

Accordingly, Hammer concluded that the association’s

judicial sale did not constitute enforcement of its assessment

lien “by foreclosure in ‘like manner as a mortgage on real

estate.’” Id. at 1240. Like Karr, Hammer initially

distinguished the enforcement mechanism provided in

subsection (a)—foreclosure—from the “other avenues to

obtain payment of assessments” in subsection (f). See id.

Thereafter, Hammer took, in our view, a wrong turn by

conflating the association’s ability to enforce with its

12

remedies to collect:

[E]xpanding upon the rationale of Karr, we

hold that [the association] seeking a judicial

sale as the vehicle to secure payment of its

assessment lien did not equate with the

approved enforcement mechanism to collect an

assessment lien by an association’s action in

mortgage foreclosure, action in debt or contract.

Id. (emphasis added). The Superior Court then buttressed this

conclusion with an improper insertion into Karr’s holding:

“[t]he first step to enforcing an assessment is the filing of a

foreclosure complaint[, action in debt or contract].” Id. in

1241 (alteration in original); but cf. Karr, 866 A.2d at 453

(“The first step to enforcing an assessment lien is the filing of

a foreclosure complaint.”).

C

In predicting whether the Pennsylvania Supreme Court

would adopt Karr or the later decision in Hammer, we turn

first to the language and structure of Section 5315. Under

Pennsylvania law, statutory liens such as that provided by

Section 5315 are construed strictly because they are an

“extraordinary remedy” “which is more expeditious and

advantageous . . . when compared to a breach of contract

judgment.” Phila. Constr. Servcs., LLC v. Domb, 903 A.2d

1262, 1267, 1268 (Pa. Super. Ct. 2006); see also Murray v.

Zemon, 167 A.2d 253, 255 (Pa. 1960) (mechanics’ liens are

available only on such terms as the legislature sees fit to

provide). Thus, “[t]he character, operation and extent of the

lien must be ascertained from the terms of the statute which

creates and defines it, and the lien will extend . . . only where

13

there has been at least a substantial compliance with all the

statutory requirements.” United States v. Beaver Run Coal

Co., 99 F.2d 610, 612 (3d Cir. 1938).

The Commonwealth Court’s analysis in Karr comports

with the text and structure of the statute at issue. Section 5315

draws a clear distinction between subsection (e)’s

“proceedings to enforce” the statutory lien on the one hand

and the pursuit of “[o]ther remedies” in subsection (f) on the

other hand. Subsections (a) and (e) define the creation and

expiration of the statutory lien as follows: “the association has

a lien . . . [when] the assessment or fine becomes due”; this

“lien may be foreclosed in a like manner as a mortgage on

real estate”; and the “lien . . . is extinguished unless

proceedings to enforce the lien are instituted within three

years.” 68 Pa. Cons. Stat. § 5315(a), (e) (emphasis added). As

the Commonwealth Court noted in Karr, the statute explicitly

provides for enforcement by “foreclos[ure] in a like manner

as a mortgage on real estate”; thus, one may enforce the

statutory lien by filing an action in foreclosure. See 866 A.2d

at 452 (quoting 68 Pa. Cons. Stat. § 5315(a)).

In contrast to subsections (a) and (e), subsection (f) is

concerned not with the lien itself but with the “sums for

which subsection (a) creates a lien.” 68 Pa. Cons. Stat. §

5315(f) (emphasis added). This shift in word choice

demonstrates that actions in debt or contract provide an

alternative recourse from the lien created by the provision,

and do not constitute “proceedings to enforce the lien.” In the

words of the statute, they are the “[o]ther remedies” available

at common law explicitly “preserved” by the statute. Id. As

the Karr court reasoned, an association need not take drastic

action to collect on its association dues, as remedies exist “in

lieu of foreclosure”: for example, the “actions or suits to

14

recover sums” and “taking a deed” described in subsection

(f). 866 A.2d at 452 (quoting 68 Pa. Cons. Stat. § 5315(f)).

But these methods of collection create only an in personam

judgment against the debtor, and have no bearing on the in

rem lien on the resident’s property. 3

In response, the Association notes that subsection (a)

provides that the lien “may . . . foreclose[] in a like manner as

a mortgage on real estate,” arguing that this permissive

language gives it multiple methods of enforcement. But this

case does not require us to determine whether foreclosure is

the exclusive means to enforce the lien, as Makowka

contends. Rather, we must decide only whether actions in

debt are a valid way to enforce the statutory lien—and the

language of Section 5315(f), which explicitly defines actions

in debt as an alternative to the lien created by the statute,

suggests not.

3

Because Section 5315 provides for enforcement by

foreclosure, it is unsurprising that the preservation of

alternative remedies in Section 5315 has a close analogue in

the mortgage foreclosure context. As the District Court

succinctly noted:

[I]t appears to this Court that subsection (f)

permits an action on the debt underlying the lien

in the same way that a mortgagee may choose

to proceed upon a promissory note given by a

mortgagor to obtain a judgment in personam

rather than initiate in rem mortgage foreclosure

proceedings.

App. at 8.

15

Nor are we persuaded that other provisions of the

UPCA militate in favor of a broader reading of “proceedings

to enforce.” The Association contends that the term should be

liberally construed to give effect to Section 5114 of the

UPCA, which states: “[t]he remedies provided by [the UPCA]

shall be liberally administered to the end that the aggrieved

party is put in as good a position as if the other party had fully

performed.” 68 Pa. Cons. Stat. § 5114(a). But Section 5114 is

inapplicable to the enforcement of the statutory lien, speaking

only as it does to an association’s remedies for payment.

Indeed, a restrictive interpretation of Section 5315(a), which

creates the lien and defines its enforcement, has no effect on

the availability of other methods of recovery, which have

been explicitly preserved by subsection (f). Of course, we

acknowledge that our reading of “proceedings to enforce”

effectively precludes the Association from payment in this

case. But a claimant’s inability to collect in the special

context of bankruptcy, which sometimes involves the

impairment of creditors’ rights, does not permit us to adopt a

tortured interpretation of the provision giving rise to those

rights.

We therefore hold that Section 5315, as explained by

the Commonwealth Court’s careful analysis in Karr, supports

Makowka’s argument that the Association’s actions in debt

did not enforce its statutory lien.

D

The Association urges that we follow the Superior

Court’s later decision in Hammer and find that actions in debt

enforce the statutory lien. See 903 A.2d at 1240. We predict,

however, that the Pennsylvania Supreme Court would not

follow that approach.

16

As an initial matter, it is difficult to give credence to

Hammer’s conclusion in light of the decision’s sparse

reasoning and internal inconsistency on the issue of

enforcement. As discussed in section B, supra, Hammer

purported to adopt the Commonwealth Court’s reasoning in

Karr, and like that case, initially distinguished the

“enforcement” of the lien from other avenues to collect. See

id. It then departed, relying on an improper insertion into

Karr’s holding and thus tacking on new categories of

potential enforcement methods. See id. (quoting Karr to state

“[t]he first step to enforcing an assessment lien is the filing of

a foreclosure complaint[, action in debt or contract]”)

(alterations in original). The decision also elided the

distinction between enforcement methods and remedies to

collect, noting that actions in debt constituted “approved

enforcement mechanism[s] to collect an assessment lien.” Id.

These analytical tacks were made without explanation, and,

as we explained in section C, supra, run contrary to the

language and structure of Section 5315.

Furthermore, as the District Court correctly noted,

Hammer “ignore[s] the well-established and fundamental

distinction between proceedings in rem and those brought in

personam.” App. at 8; see also Bank of Pa. v. G/N Enter., 463

A.2d 4, 6–7 (Pa. Super. Ct. 1983) (explaining the difference

between in rem and in personam proceedings: a judgment in

rem “creates a lien on the mortgaged premises . . . no matter

who may be the owner at the time the judgment is entered”; a

judgment in personam “does not bind strangers to the bond”).

The Pennsylvania Supreme Court has held firm to this

distinction. See, e.g., Mancine v. Concord-Liberty Sav. &

Loan Ass’n, 445 A.2d 744, 748 (Pa. 1982); In re Craig’s

Estate, 109 A.2d 190, 195 (Pa. 1954). Moreover, recent

17

opinions of the Superior Court itself have adhered to this

traditional precept. See, e.g., U.S. Bank N.A. v. Mallory, 982

A.2d 986, 992 n.3 (Pa. Super. Ct. 2009); Levitt v. Patrick, 976

A.2d 581, 591 (Pa. Super. Ct. 2009). Contrary to these

numerous authorities, Hammer conflated an association’s

right to proceed in rem to enforce the statutory lien with its

option to file in personam suits to collect judgments against

the resident.

For these reasons, we find it appropriate to discount

Hammer’s problematic statement about valid enforcement

mechanisms.

IV

For the foregoing reasons, we predict that the

Pennsylvania Supreme Court would follow Karr, not

Hammer. Therefore, the District Court erred when it deemed

itself bound by the latter decision. In our view, the

Association did not enforce its statutory lien on Makowka’s

residence when it pursued actions in debt; therefore, any

portion of the lien representing assessments due before

September 12, 2008, has been extinguished. Accordingly, we

will vacate the judgment of the District Court and remand the

case for further proceedings consistent with this opinion.

18