# Stratford v. Boland

> Superior Court of Pennsylvania · November 19, 1982 · 306 Pa. Super. 475

URL: https://www.frixlaw.com/law-library/cases/9697527

## Case

- **Full name:** Daniel R. STRATFORD v. John E. BOLAND and Dauphin County Industrial Development Authority. Appeal of John E. BOLAND
- **Court:** Superior Court of Pennsylvania
- **Decided:** November 19, 1982
- **Citations:** 306 Pa. Super. 475; 452 A.2d 824; 1982 Pa. Super. LEXIS 5709
- **Precedential status:** Published
- **Opinion:** Concurrence by Beck
- **Judges:** Brosky, McEwen, Beck
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9697527

## Opinion text

BECK, Judge,
concurring:
The initial issue for consideration in the present action is the effect of the parties’ agreement to substitute a bond for a mechanic’s lien claim which had been entered upon appellant Boland’s real estate. In accordance with the agreement, the bond was filed and the lien was stricken. The legal effect of this substitution is covered by the Mechanics’ Lien Law of 1963 (49 P.S. § 1510) which states that the entry of security in proper amount entitles the owner to have the mechanic’s lien discharged, and the release of the premises follows as a matter of course. See also 12 Standard Pa. Practice, Mechanics’ Lien, 51 at 201-2 (rev. ed. 1964); Sulzer v. Ross, 12 Pa.Super. 206 (1899); Schellenbetrager v. O’Donnell, 44 Pa.Super. 43 (1910). 1
*482 Since the lien against appellant’s property was discharged, it is not necessary to reach the question whether appellee Stratford, who has a claim for reimbursement for architectural services, meets the requirements of “Contractor” within the meaning of the statute.
The question which remains, however, is whether Strat-ford, who has sued upon the mechanic’s lien in his pleadings, can recover in contract without having averred contract in those pleadings. While it is true that a creditor may pursue the ordinary remedy of a creditor by bringing an action on the debt, since the remedies of the lien and the action on the debt are concurrent and cumulative, in this instance appellee Stratford has not proceeded correctly. In Rees, Weaver and Co. v. M.B.C. Paper Mill Corp., 267 Pa.Super. 148 , 406 A.2d 562 (1979) this Court held that an action based on an unperfected mechanic’s lien claim was properly stricken, and the matter was not required to be treated as an action in assumpsit.
Appellant argues finally that its action was in assump-sit, and that for this reason the lower court should not have stricken the judgment as based on an unperfected mechanics’ lien claim. The record belies this argument. Appellant’s complaint is captioned: “Action to Obtain Judgment upon Mechanics’ Lien Claim.” An action to obtain judgment upon a mechanics’ lien claim is an action in rem, not a personal action on a contract. Costanzo v. Chianese, 177 Pa.Super. 414 , 110 A.2d 802 (1955); Hoffman Lumber Co. v. Mitchell, 170 Pa.Super. 326 , 85 A.2d 664 (1952); Comment to 49 P.S. § 1702 (1965). While an action in assumpsit for labor and materials and an action to enforce a mechanics’ lien claim for the same labor and materials are concurrent and cumulative remedies, appellant chose to pursue only the latter remedy. Appellant having made this choice, the lower court properly struck off the claim, since “[t]he proceeding for enforcement of the lien is entirely dependent upon the existence of the *483 lien, and if there is no lien, or it is divested or stricken off, the enforcement proceeding falls with it.” 12 Stand.Pa. Prac.—Mechanics’ Lien § 223 at 204 (rev. ed. 1964).
We point out, however, that a compulsory nonsuit in proceedings to enforce a lien does not bar a subsequent action on the debt. A plaintiff who fails to recover on a mechanic’s lien because of a defect in the lien may resort to an action in debt against the same defendant. 12 Standard Pa. Practice, Mechanics’ Lien § 51, at 205; Contractors Lumber and Supply Co. v. Quinette, 185 Pa.Super.Ct. 66 , 137 A.2d 841 (1958).
. We note that when the mechanic’s lien was discharged, the claim remained on the judgment index. Since the discharge of the lien should ordinarily result in striking the claim on the index, we con- *482 elude that failure to strike the claim was an irregularity that should be overlooked.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9697527. Public record. Not legal advice.