Deutsche National Trust Co. v. Meister, T.

J-A32028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEUTSCHE BANK NATIONAL TRUST IN THE SUPERIOR COURT OF
COMPANY, AS TRUSTEE OF AMERIQUEST PEN NSYLVANIA
MORTGAGE SECURITIES, INC., ASSET
BACKED PASS THROUGH CERTIFICATES,
SERIES 2005-R4CGM UNDER THE
POOLING AND SERVICING AGREEMENT
DATED AS OF MAY 1, 2005 WITHOUT
REMORSE
Appellees
v.
TOM MEISTER OR OCCUPANTS,
Appellant No. 3493 EDA 2013
Appeal from the Judgment Entered November 13, 2013
In the Court of Common Pleas of Delaware County
Civil Division at No(s): No. 12-7435
BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 08, 2015
Appellant, Tom Meister, appeals from the judgment entered on
November 13, 2013. We dismiss the appeal.
The procedural history of this case is as follows. On February 21,
2007, Deutsche Bank National Trust Company (“Deutsche Bank”) filed a
complaint in mortgage foreclosure. Appellant failed to file an answer to the
complaint and, on June 1, 2007, judgment was entered in rem in favor of
Deutsche Bank. On July 20, 2012, Deutsche Bank purchased the subject
* Former Justice specially assigned to the Superior Court.
J-A32028-14
property at a sheriff’s sale. The sheriff’s deed was issued on August 9,
2012. That deed was duly recorded on August 14, 2012.
Deutsche Bank filed the instant ejectment action on August 29, 2012.
Appellant failed to file an answer and, on February 27, 2013, judgment was
entered in favor of Deutsche Bank. On May 31, 2013, Appellant filed a
motion to open the judgment, which was granted on July 30, 2013.
Appellant thereafter filed an answer and new matter. On September 5,
2013, Deutsche Bank filed a motion for summary judgment which was
granted on November 13, 2013. Appellant filed this timely appeal and
complied with the trial court’s order to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).
On March 18, 2014, Appellant filed an emergency motion to stay
ejectment. The trial court denied the motion on March 25, 2014. Appellant
did not seek a stay from this Court. After two unsuccessful attempts at
ejectment, Appellant was finally ejected from the subject property on
October 21, 2014. After the ejectment, Deutsche Bank filed an application
to dismiss this appeal as moot. Appellant filed a response and we deferred
disposition until after oral argument.
Appellant presents one issue for our review:
Upon a concocted but not actual [s]heriff’s [d]eed [p]oll
appended to [Deutsche Bank’s c]omplaint, should the Court of
Common Pleas [of Delaware County] be reversed per its grant of
summary judgment when the [c]omplaint is void ab initio by that
appendment pursuant to [Pennsylvania Rule of Civil Procedure]
1054(b)?
- 2-
J-A32028-14
Appellant’s Brief at 9.
We first address Deutsche Bank’s application to dismiss this appeal.
As this Court has recently explained:
As a general rule, an actual case or controversy must exist at all
stages of the judicial process, or a case will be dismissed as
moot. An issue before a court is moot if in ruling upon the issue
the court cannot enter an order that has any legal force or
effect. Nevertheless, this Court will decide questions that
otherwise have been rendered moot when one or more of the
following exceptions to the mootness doctrine apply: 1) the case
involves a question of great public importance, 2) the question
presented is capable of repetition and apt to elude appellate
review, or 3) a party to the controversy will suffer some
detriment due to the decision of the trial court.
In re M.B., 101 A.3d 124, 127 (Pa. Super. 2014) (citation and ellipses
omitted; emphasis removed).
Deutsche Bank argues that this case is moot because the ejectment
has already occurred and, therefore, we could not give effect to an order
reversing the trial court. In reply, Appellant argues that we could permit
him to reenter the subject property and, therefore this case is not moot.
Alternatively, he contends that if this appeal is moot, we may still reach the
merits as it is an important question capable of repetition without appellate
review.
We find instructive the decisions of this Court in Wolf v. Long, 468
A.2d 508 (Pa. Super. 1983)(per curiam), and Am. Mut. Liab. Ins. Co. v.
Zion & Klein, P.A., 466 A.2d 679 (Pa. Super. 1983). In American
Mutual, a landlord filed an ejectment action against a tenant. Id. at 679.
-3-
J-A32028-14
The district justice entered judgment in favor of the landlord. Id. at 679-
680. The court of common pleas dismissed the writ of certiorari as moot
because the tenant had vacated the premises. Id. at 680. The tenant then
appealed to this Court. This Court agreed with the court of common pleas
that the issue had become moot because the tenant had vacated the
premises. Id. at 680-681. Specifically, this Court noted that “[o]nce the
court found that possession had been given up, no purpose could be served
in passing upon the correctness of the proceedings before the district
justice.” Id. Thereafter in Wolf, we applied the same reasoning to dismiss
an appeal where a tenant had vacated the property during the course of the
appeal. Wolf,468 A.2d at 509.
At oral argument, Appellant attempted to distinguish American
Mutual and Wolf in two respects. First, he argued that the cases are
distinguishable because they involved tenants who left “voluntarily.” We
find this distinction unpersuasive. It is not the voluntary or involuntary
nature of the departure that renders a case moot. Instead, it is the fact that
the departure and vacancy occurred that moots the case. Furthermore,
when judgment has been entered against a party and that party is ordered
to vacate the premises, the ensuing departure is not voluntary. Although no
force may have been used, as was required in the instant case, it was the
judgment of the court that prompted the tenants to leave.
-4-
J-A32028-14
Next, Appellant argues that American Mutual and Wolf are
distinguishable because they involved a landlord seeking to eject a tenant
while the instant case centers on an ejectment action brought by a mortgage
holder. We also find this distinction unpersuasive. Appellant conceded at
oral argument that he is not challenging the sheriff’s sale. Deutsche Bank is
currently the owner of the subject property. Thus, Appellant has no right to
inhabit the subject property. It is no different than a landlord-tenant case as
Deutsche Bank has full title to the subject property and can exclude anyone
it wishes from entering on that property, just like a landlord can. It is for
this reason that we are unable to grant Appellant the relief he seeks. Even if
we were to find that the judgment in ejectment should not have been
entered, we cannot force Deutsche Bank – the current lawful property
owner - to permit a trespasser to occupy the subject property. It is fully
within Deutsche Bank’s rights to refuse Appellant entry onto the subject
property. Accordingly, we conclude that this case is moot.
Having determined that this case is moot, we turn to whether one of
the exceptions to mootness applies. We conclude that none of the exceptions
apply. In American Mutual,this Court found that an ejectment action does
not raise a question of great public importance. See American Mutual,
466 A.2d at 681 (citation omitted). Furthermore, the question is not one
capable of repetition and apt to elude appellate review. Appellant admitted
at oral argument that he failed to seek a stay from this Court. Any litigant
-5-
J-A32028-14
could ensure appellate review by seeking a stay from this Court. Finally,
Appellant will suffer no detriment by our failure to reach the merits of this
appeal. As noted above, this Court cannot give Appellant any relief.
Furthermore, there are no collateral consequences stemming from the
ejectment. Accordingly, we conclude that this issue does not fall into any of
the three enumerated exceptions to mootness and we must dismiss this
appeal.
Even if we were to reach the merits of Appellant’s sole issue on appeal,
we would conclude that he is not entitled to relief. His argument is
essentially that the failure to attach the sheriff’s deed to the complaint
rendered the trial court without jurisdiction to entertain the ejectment
action. In support of this argument, he cites to Pennsylvania Rule of Civil
Procedure 1054(b), which provides that in an ejectment action, “A party
shall set forth in the complaint or answer an abstract of the title upon
which the party relies at least from the common source of the adverse titles
of the parties.” Pa.R.C.P. 1054(b)(emphasis added).
Appellant cites to Wells Fargo Bank, N.A. v. Long,934 A.2d 76, 78
(Pa. Super. 2007), for the proposition that Rule 1054(b) requires that the
sheriff’s deed be attached to a complaint seeking ejectment. Appellant’s
characterization of Long is incorrect. Long merely holds that an ejectment
action cannot be filed until a sheriff’s deed has been recorded. See id. at
-6-
J-A32028-14
77-81. Specifically, in Long the ejectment complaint was filed in November
2005 while the sheriff’s deed was not recoded until January 2006. Id. at 77.
The plain language of Rule 1054(b) only requires that a plaintiff plead
in the complaint “an abstract of the title upon which the party relies at
least from the common source of the adverse titles of the parties.”
Pa.R.C.P. 1054(b)(emphasis added). The use of the term “in the complaint”
supports the conclusion that the required information be in the complaint,
not an attachment. Moreover, this Court has defined the term ‘abstract’, as
it is used in Rule 1054(b), as “a compilation in an abridged form of the
record of the vendor’s title; it is a summary of the most important parts of
the deeds and other instruments comprising the evidences of title, arranged
in chronological order, and intended to show the original source and
incidents of title.” Busin v. Whiting, 535 A.2d 1078, 1080 (Pa. Super.
1987), rev’d on other grounds, 570 A.2d 508 (Pa. 1989)(emphasis added).
Therefore, a mere summary in the body of the complaint satisfies the Rule
1054(b) requirements.
In this case, Deutsche Bank satisfied the Rule 1054(b) requirements in
its complaint. See Complaint, 8/29/12, ¶¶ 2-3. Moreover, our review
confirms that the record is free of genuine issues of material fact and that
Deutsche Bank is entitled to judgment as a matter of law. It is undisputed
that the sheriff’s deed was recorded on August 14, 2012, and that Deutsche
Bank’s ejectment complaint was filed on August 29, 2012. Deutsch e Bank
-7-
J-A32028-14
clearly had an immediate right to possession of the property after August
14, 2012, and was therefore entitled to relief in the form of ejectment as a
matter of law. Accordingly, even if this appeal were not moot, Appellant
would not be entitled to relief.
Appeal dismissed.
Fitzgerald, J. joins this memorandum.
Panella, J. concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2015
-8-