We have before us for disposition objections raised by demurrer to a scire facias sur mechanic’s lien. Plaintiff, a subcontractor, filed his lien against certain real estate belonging to defendants. A writ of scire facias was issued and service was accepted on behalf of defendants.
Preliminarily we will consider plaintiffs contention that the demurrer is an improper pleading.
In Favo v. Merlot et al., 94 Pa. Superior Ct. 90 (1928), the Supreme Court specifically held that the procedure for determining the validity of a lien by a petition to strike off the lien is not exclusive and that a demurrer will lie. Defendant apparently contends that the express provision of the Act of 1933, supra, providing that “defendant may, after ruling plaintiff to file replication, whether replication is filed or not, move for judgment on the whole record” is indicative of a legislative intention to exclude the use of a demurrer. The Act of 1933 makes no reference to the method of attacking the sufficiency of plaintiff’s affidavit in support of his sci. fa., which is the phase of the pleading at which we are, and we think the prior procedure continues in force, i. e., by petition to strike off the lien or demurrer. The legislature could not have intended to exclude a demurrer as an alternative to the motion for judgment on the whole record because a demurrer would in no event be a proper pleading at such phase of the pleadings insofar as it functions as an admission of the facts well pleaded in the opponent’s prior pleading. A demurrer is not an alternative pleading to a motion for judgment on the whole record, therefore it was not excluded by the provision for the latter pleading. Insofar as Chappel v. Bailey, 72 Pitts. L. J. 864 (1923), was authority for the proposition that a demurrer was not a permissible pleading in a scire facias sur mechanic’s lien, it was overruled by Favo v. Merlot et al., supra. See Fahnestock v. Speer, 92 Pa. 146 (1879).
In Brant v. Hartrick (No. 1), 60 Pa. Superior Ct. 507, 509, the court stated of a lumping charge:
“This statement of claim was held to be clearly defective because it did not adequately set forth the nature and kind of the work done nor when it was done. The claimant was a subcontractor and bound to strict compliance with the statute on which he relied for his lien. Such a defect is not formal merely but is substantial and cannot be cured by proof.”
The law is clear that, after the expiration of the statutory period for filing a lien, substantial as distinguished from formal defects cannot be remedied by amendment. See McFarland v. Schultz et al., 168 Pa. 634; Singerly v. Cawley, 26 Pa. 248; Brant v. Hartrick (No. 1), 60 Pa. Superior Ct. 507; Sumption
It is unnecessary to consider defendants’ other objections.
Order
And now, October 2, 1951, it is adjudged that the lienor has failed to set forth a good cause of action under the Mechanic’s Lien Law and defendants’ demurrer to plaintiff’s writ of scire facias sur mechanic’s claim is sustained and judgment is entered for defendants.