(concurring in part and dissenting in part).
I respectfully dissent from that portion of the majority’s decision that holds that the circumstances of this case satisfy the requirements of service by certified mail pursuant to Minn.Stat. § 514.08, subd. 1(2) (Supp.1983).
Minn.Stat. § 514.08, subd. 1 provides that the mechanics’ lien ceases 120 days after furnishing the last item of material, unless within this period:
(1) a statement of the claim is filed for record with the county recorder of the county in which the improved premises are situated * * *; and
(2) a copy of the statement is served personally or by certified mail on the owner or his authorized agent[.]
Id. (emphasis added).
I submit that the fact that service under section 514.08, subd. 1(2) may be accomplished either by personal service or by certified mail is important and distinguishes this case from those in which the appropriate method of service was by regular mail. If the legislature had intended that service under this statute be accomplished upon depositing mail in a mailbox, the legislature would have prescribed service by regular mail. Here, however, the requirement of personal service or service by certified mail negates such an interpretation of the statute. Therefore, I suggest that a more reasonable interpretation of the alternative methods of service permitted by section 514.08, subd. 1, is that the legislature wished to assure actual receipt of the mechanics’ lien statement by the owner or his authorized agent within the 120 day time period. See State of Cal. Dep’t. of Forestry v. Terry, 124 Cal.App.3d 140, 177 Cal.Rptr. 92 (1981) (where a timber lien statute required service by certified mail, the certified mail was returned undelivered, and the evidence did not show that addressee was purposely avoiding receipt of the certified mail, the court held that the requirement of service by registered or certified mail was not satisfied by mere mailing. The court determined that the legislature must have intended that the signed receipt from delivery of the certified mail be an integral part of the service).
Although the majority relies on Goldsworthy v. State Department of Public Safety, 268 N.W.2d 46 (Minn.1978) and McIntee v. State, Department of Public Safety, 279 N.W.2d 817 (Minn.1979) for their analysis that service under the statute has been accomplished, I am troubled by the fact that in both of those cases where certified mail was utilized and was deemed to be sufficient, the record reflected that the certified mail was actually delivered.1 Here, the record discloses no evidence that service of a copy of the mechanics’ lien statement was actually delivered to Gepner or his agent, within 120 days from February 21, 1984, the date when Har-Ned last furnished materials. The record reveals only that well after the 120-day period had lapsed, Gepner received a copy of the lien statement by regular mail dated August 9, 1984. I believe this circumstance to be of critical importance, and as a result I find the supreme court’s comments in Mclntee instructive:
In cases [from other jurisdictions] where the registered mail was not delivered and it was returned, the courts have been virtually unanimous in holding that the notice is insufficient.
* * * * # *
In accordance with these cases, the service of notice * * * is insufficient if the certified mail was merely undelivered.
McIntee, 279 N.W.2d at 820 (emphasis added).
If the record before us demonstrated that service was actually delivered as it was in Goldsworthy and Mclntee, the ser*817vice here would be sufficient. However, it was not, and I would reverse the trial court’s determination that upon mailing service was sufficient.
. I, too, would recognize as sufficient service by certified mail, when the recipient refuses or neglects to accept delivery of that mail. There is no evidence of such refusal or neglect here.