U.S. Bank National Assoc. v. Schraven, D. ( 2016 )

J-A16013-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
U.S. BANK NATIONAL ASSOCIATION, : IN THE SUPERIOR COURT OF
AS TRUSTEE FOR J.P. MORGAN : PENNSYLVANIA
MORTGAGE ACQUISITION TRUST :
2006-CH2, ASSET BACKED PASS- :
TROUGH CERTIFICATES, SERIES 2006- :
CH2 :
:
v. :
:
DAVID SCHRAVEN, KELLY SCHRAVEN, :
THE UNITED STATES OF AMERICA C/O :
THE UNITED STATES ATTORNEY FOR :
THE WESTERN DISTRICT OF :
PENNSYLVANIA, :
:
APPEAL OF: DAVID SCHRAVEN AND :
KELLY SCHRAVEN : No. 1153 WDA 2015
Appeal from the Order July 16, 2015
in the Court of Common Pleas of Allegheny County
Civil Division at No(s): MG-09-001176
BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.
DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED: September 28, 2016
Because I disagree with the Majority’s determination that the appeal is
moot, and would address the Schravens’ substantive issues, I respectfully
dissent.
The learned Majority determined that the instant appeal is moot on the
basis that the Schravens failed to file a supersedeas bond and stay the
sheriff’s sale proceedings. Majority Memorandum at 10. In so doing, the
Majority found distinguishable this Court’s holding in Jefferson Bank v.
*Retired Senior Judge assigned to the Superior Court.
J-A16013-16
Newton Associates, 686 A.2d 834 (Pa. Super. 1996) (rejecting the
appellees’ argument that the appeal was moot “because titles to all of the
condominium units at issue were transferred to third parties subsequent to
appellant’s filing of its notice of appeal” and noting that Pennsylvania Courts
“have never held that an adverse party may create mootness through
deliberate factual manipulation”). Although the factual situation presented
herein is similar to that presented in Jefferson, the Majority holds that
Jefferson is inapplicable because the Court in Jefferson did not address
the issue of how failure to obtain a supersedeas affects a determination of
mootness. Majority Memorandum at 10.
However, contrary to the Majority’s determination, the Jefferson
Court’s failure to address the effect of a supersedeas bond on a claim of
mootness does not render inapplicable the Court’s holding in that case.
Instantly, the July 16, 2015, trial court order, which denied both the
Schravens’ petition to set aside the sheriff’s sale and the motion to
strike/open default judgment, was not subject to automatic supersedeas
under Pa.R.A.P. 1731. Nor did it “determine[] the disposition of the property
in controversy as in real actions, replevin, and actions to foreclose
mortgages or when such property is in the custody of the sheriff, or when
the proceeds of such property or appropriate security for its value is in the
possession, custody or control of the court,” as required for a supersedeas
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under Pa.R.A.P. 1733. Simply put, the nature of the order left nothing to
supersede. Thus, the effect of a supersedeas on the issue of mootness is
immaterial to the instant case, and the Majority’s rejection of the precedent
set forth in Jefferson was in error.
Moreover, the property at issue was not sold at sheriff’s sale to a third
party; rather, Appellee was both the proponent of, and prevailing purchaser
at, the sheriff’s sale. Accordingly, there is no prejudice to Appellee in
allowing the matter to proceed. Thus, I would find the appeal ripe for review
and evaluate the Schravens’ substantive claims on appeal.
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