PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-3469

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In re: KELLY L. MAKOWKA,

 Appellant

____________

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
2

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 

____________

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.
3

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. 
4

(i.e., money judgments) as well as non-possessory, nonpurchase 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 
5

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 
6

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 
7

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 
8

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 
9

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 
10

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 
11

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.
12

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 
13

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 
14

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 
15

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.
16

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. 
17

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 
18

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.