J-A32028-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEUTSCHE BANK NATIONAL TRUST

COMPANY, AS TRUSTEE OF AMERIQUEST

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,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

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.
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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)?

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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.

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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.

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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

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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

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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. Deutsche Bank

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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

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