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ASSOCIATED LUMBER & MANUFACTURING CO. v. MATROIANNI ET AL. (07/14/53)

July 14, 1953

ASSOCIATED LUMBER & MANUFACTURING CO., INC.
v.
MATROIANNI ET AL.



COUNSEL

Allen N. Brunwasser, Pittsburgh, for appellant.

Wm. Howard Colbert and Wright & Rundle, Pittsburgh, for appellees.

Before Rhodes, P.j., and Hirt, Reno, Dithrich, Ross, Gunther and Wright, JJ.

Author: Wright

[ 173 Pa. Super. Page 311]

WRIGHT, Judge.

This is an action of scire facias upon a mechanic's lien filed by a subcontractor. The court below entered

[ 173 Pa. Super. Page 312]

    judgment on the whole record in favor of defendants. Plaintiff has appealed. The judgment will be affirmed.

On October 9, 1952, plaintiff caused to be served on defendants a notice of its intention to file a mechanic's lien. The lien was filed on November 12, 1952, and had attached thereto an alleged copy of the notice of intention, which copy was verified. A scire facias was issued on November 20, 1952, and served on defendants on December 9, 1952. An affidavit of defense was filed January 12, 1953, and service was on that day accepted by plaintiff's attorney. The affidavit of defense averred, inter alia, that the notice of intention to file a claim which was served on defendants had not been verified by affidavit as required by Section 8 of the Act of 1901, P.L. 431, as amended by the Act of 1909, P.L. 65, 49 P.S. § 101. A photostatic copy of the served notice was attached as an exhibit, showing that there was no verification. The jurat is not dated or signed, and does not have a seal affixed. The affidavit of defense was endorsed with notice requiring plaintiff to file a replication within 15 days from the date of service. See Section 4 of the Act of 1933, P.L. 845, 49 P.S. § 165.

On January 20, 1953, plaintiff served notice on counsel for defendants that, on February 2, 1953, it would present a petition for allowance to amend the served notice of intention by adding a jurat. This petition averred that the notice 'was properly sworn to, but the deputy sheriff allegedly served a copy without the jurat'. This petition averred that the notice 'was properly sworn to, but the deputy sheriff allegedly served a copy without the jurat'. However, plaintiff did not file a replication to the affidavit of defense. On January 28, 1953, defendants entered the rule for judgment upon the whole record, the rule being returnable on February 2, 1953. Service of notice of the rule was accepted on behalf of plaintiff on the same day. On February 2, 1953, both plaintiff's petition to amend and defendants' rule

[ 173 Pa. Super. Page 313]

    for judgment were argued and determined. The petition to amend was refused and the rule for judgment in favor of defendants was made absolute. Later the same day, the court refused to grant a rule to show cause why the judgment should not be opened.

Appellant's position is that, where a copy on record of a subcontractor's notice of intention to file a mechanic's lien is verified by affidavit, but the original notice served upon the owners is not, the defect is not fatal and the notice served may be amended by adding the jurat thereto. This contention ...


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