J-S55013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    EAST HILLS LTD PARTNERSHIP                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TIERA MORGAN                               :
                                               :
                       Appellant               :   No. 220 WDA 2019

                Appeal from the Order Entered January 17, 2019
       In the Court of Common Pleas of Allegheny County Civil Division at
                             No(s): LT-18-000189


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                           FILED NOVEMBER 12, 2019

        In this landlord-tenant action, Tiera Morgan (Appellant) appeals from

the trial court’s order denying her motion to strike consent judgment. Upon

review, we affirm.

        On June 9, 2017, Appellant executed an agreement to lease a Section 8

subsidized residence at 2329 Wilner Drive, Pittsburgh, from East Hills Ltd.

Partnership (Landlord).        On February 2, 2018, Landlord filed an eviction

complaint in the Magisterial District Court, alleging that Appellant violated the

terms of the lease because members of her household (namely, her two minor

sons) engaged in multiple criminal incidents in Appellant’s residence and other

property owned by Landlord. The Magisterial District Judge found in favor of

Landlord, and awarded Landlord possession of the property and unpaid rent
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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of $160.34.

       Appellant appealed to the trial court, and Landlord filed a complaint on

April 4, 2018. However, on June 20, 2018, the parties agreed to a consent

judgment, which provided, inter alia, that: (1) within 7 days, Appellant would

remove her minor sons from the property; (2) Appellant would vacate the

property by December 31, 2018; (3) if Appellant complied with all of the terms

of the consent, Landlord would waive the unpaid rent and provide Appellant

with “a non-negative reference”; and (4) if Appellant violated any of the

terms, Landlord would, upon motion, be awarded possession of the property

and monetary judgment. Consent Judgment, 6/20/18.

       One month later, on July 19, 2018, Landlord filed a “Motion for

Possession upon Consent Judgment,” averring that Appellant refused to

remove her sons from the property.             On the same day, Appellant filed an

answer and countermotion seeking to strike the consent judgment. 1 Appellant

averred that the juvenile court in her sons’ adjudication matters directed that

the sons be moved from their grandmother’s home and placed with Appellant.

       On January 17, 2019, the trial court entered the underlying order from

which Appellant appeals; the order denied Appellant’s motion to strike the

consent judgment, awarded Landlord possession and $160.34, and directed

Appellant to vacate the property by January 28, 2019. On January 29, 2019,

Landlord filed a praecipe for writ of possession.
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1The certified record includes only the first page and the signature page of
Appellant’s motion; the other pages are absent.

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      Appellant, who remained in the property, filed a notice of appeal on

February 13, 2019. On February 27th, Landlord filed a motion averring that

Appellant had not applied for a stay or supersedeas, and requesting

permission to proceed with eviction through the sheriff’s office. That same

day, Appellant filed an answer and motion for supersedeas. Appellant averred

that: (1) prior to the trial court’s January 17, 2019 order denying Appellant’s

motion to strike the consent judgment, Appellant remained in the property

pursuant to a supersedeas under 68 P.S. § 250.513(b) (tenant’s appeal to the

court of common pleas from a lower court shall operate as a supersedeas if

the tenant pays in cash or bond any judgment rendered by the lower court

and any rent which becomes due during the court of common pleas

proceedings); and (2) there was no authority for the supersedeas to end when

the court of common pleas rendered its decision. The same day, February 27,

2019, the court denied Appellant’s request for supersedeas and permitted

Landlord to proceed with eviction on or after March 8, 2019. The court also

specified that it was denying Appellant’s “request for a stay.” Order, 2/27/19.

On March 5, 2019, the court directed Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, and Appellant complied. On May

23, 2019, the sheriff filed a writ of possession, indicating that possession of

the property was delivered to Landlord.

      On appeal, Appellant presents three issues:

      1. Whether the Court erred in determining there was no mutual
      mistake in that the weight of the evidence clearly showed the
      parties had believed incorrect facts, including there were housing

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      alternatives for [Appellant’s] sons and there were not;

      2. Whether the Court erred in determining there was no
      misrepresentation by [Landlord] that induced [Appellant] to agree
      to the terms of the order in that such a determination was against
      the weight of the evidence and was admitted by [Landlord’s]
      agent;

      3. Whether the Court erred in granting Possession of the Property
      to [Landlord] in that prior to the entry of the order of January 17,
      2019, [Appellant] and her children were able to stay in the
      premises pursuant to the supersedeas issued under 68 Pa. Stat.
      Ann. § 250.513; i.e., there is no provision under the law that the
      statutory stay does not continue pending an appeal.

Appellant’s Brief at 3.

      Before reaching the merits of Appellant’s claims, we consider whether

Appellant’s appeal is moot. On June 26, 2019, this Court issued a rule to show

cause upon Appellant as to why this appeal should not be dismissed as moot

because Appellant is no longer in possession of the subject property. See

Order, 6/26/19. Appellant responded to this Court’s order, arguing: (1) if

this Court determines that the consent judgment should have been stricken

and remands the matter to the trial court, the issue of money judgment could

be litigated; (2) if this matter is remanded, Landlord could recertify Appellant

for subsidized housing and place her family in another unit; and (3) whether

the trial court violated a supersedeas under 68 P.S. § 250.513(b) is a question

of first impression. By per curiam order, this Court discharged the rule to

show cause.

      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. Pilchesky v.

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Lackawanna Cnty, 88 A.3d 954 (Pa. 2014). An issue is moot if, in ruling on

the issue, the court cannot enter an order that has any legal force or effect.

Id. Where an appeal is mooted by a change in intervening facts or law, the

appeal is subject to dismissal. Commonwealth v. Pruitt, 41 A.3d 1289 (Pa.

2012) (per curiam).

      Courts, however, have recognized three exceptions to the mootness

doctrine. We permit a decision on an otherwise moot appeal when: (1) the

appeal presents a question of great public importance; (2) the appeal presents

a question that is capable of repetition but likely to evade review; or (3) a

party to the appeal will suffer some detriment from the decision appealed. In

re D.A., 801 A.2d 614, 616 (Pa. Super. 2002) (en banc).

      Here, there is no dispute that Landlord obtained possession of the

property, essentially leaving this appeal devoid of controversy.    However,

Appellant’s departure from the property does not render her appeal moot.

Rather, because Appellant is a recipient of housing assistance under the

Housing Act, the third exception to the mootness doctrine is applicable.

      Under the Housing Act, the U.S. Department of Housing and Urban

Development (HUD) promulgated regulations that, in effect, restrain the

conduct of tenants. HUD authorizes public housing authorities, and through

leases, owners of subsidized property, to impose tenancy conditions that

advance the Housing Act’s purpose of providing recipients “with decent, safe,

and sanitary housing.”   Powell v. Hous. Auth. of Pittsburgh, 812 A.2d


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1201, 1203 (Pa. 2002). HUD regulations allow a public housing authority to

deny admission or terminate assistance “if any member of the family [was]

evicted from federally assisted housing in the last five years.” 24 C.F.R. §

982.552(c)(1)(ii).   Thus, allowing Appellant’s eviction to stand could be

detrimental to Appellant because the eviction could impact Appellant’s

eligibility for housing assistance for up to five years. Accordingly, we do not

find mootness.

      Turning to the merits, Appellant first asserts that the trial court erred in

finding there was no mutual mistake when the parties executed the consent

judgment. Appellant maintains that the evidence established: (1) both parties

were mistaken that Appellant’s minor sons could live with their grandmother,

where “the [g]randmother became ill and then died in the weeks following the

entry of the consent order”; and (2) Landlord’s belief that the sons committed

delinquent acts “in the East Hills community” was mistaken, as the acts for

which the sons were ultimately adjudicated delinquent did not occur at the

apartment complex. Appellant’s Brief at 8-10. We disagree.

      In reviewing the denial of a petition to strike a judgment, we “examine

the entire record for any abuse of discretion, reversing only where the trial

court’s findings are inconsistent with the clear equities of the case.” Aquilino

v. Philadelphia Catholic Archdiocese, 884 A.2d 1269, 1280 (Pa. Super.

2005), abrogated by Nicolaou v. Martin, 195 A.3d 880 (Pa. 2018), on

different grounds.


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      Appellant filed a motion to strike — not open — the confessed judgment.

This Court has explained the distinction:

      A petition to strike a judgment is a common law proceeding, and
      operates as a demurrer to the record. Thus, a petition to strike a
      judgment will not be granted unless a fatal defect in the judgment
      appears on the face of the record. Matters dehors the record will
      not be considered, and if the record is self-sustaining, the
      judgment will not be stricken.

            A petition to open a judgment is an appeal to the court’s
      equitable powers and is a matter for judicial discretion. In
      considering a petition to open a judgment, the court may consider
      matters dehors the record. Ordinarily, a petition to open a
      judgment will not be granted unless three factors coalesce: “(1)
      the petition to open must be promptly filed; (2) the failure to
      appear or file a timely answer must be excused; and (3) the party
      seeking to open the judgment must show a meritorious defense.”

Bethlehem Steel Corp. v. Tri State Industries, Inc., 434 A.2d 1236,

1240-1241 (Pa. Super. 1981) (citations omitted). “With regard to a motion

to strike a default judgment, ‘[a] court may only look at the facts of record at

the time judgment was entered to decide if the record supports the

judgment.’” Aquilino, 884 A.2d at 1280.

      With respect to consent judgments, we have stated: “A decree entered

by consent of the parties is so conclusive that it will be reviewed only on a

showing that an objecting party’s consent was obtained by fraud or that it was

based upon a mutual mistake.” Lee v. Carney, 645 A.2d 1363, 1365 (Pa.

Super. 1994) (citation omitted).

      The doctrine of mutual mistake of fact serves as a defense to the
      formation of a contract and occurs when the parties to the contract
      have “an erroneous belief as to a basic assumption of the contract
      at the time of formation which will have a material effect on the

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      agreed exchange as to either party.” “A mutual mistake occurs
      when the written instrument fails to . . . set forth the ‘true’
      agreement” of the parties. “[T]he language of the instrument
      should be interpreted in the light of the subject matter, the
      apparent object or purpose of the parties and the conditions
      existing when it was executed.”

Hart v. Arnold, 884 A.2d 316, 333 (Pa. Super. 2005) (citations omitted)

(emphases added).

      The June 20, 2018 consent judgment set forth the terms to which the

parties, who were both represented by counsel, agreed. The consent order

stated, inter alia, that within seven days, Appellant would remove her minor

sons from the property, and that by December 31, 2018, Appellant would

vacate the property. Appellant did not comply with the terms of this consent

order, and a confessed judgment was ultimately entered in favor of Landlord.

Appellant’s subsequent motion to strike the confessed judgment improperly

requested the trial court to consider matters dehors the record — specifically,

purported evidence as to whether Appellant’s sons could live with their

grandmother, where the sons’ delinquent acts were committed, and whether

information given by Landlord’s property manager was somehow deficient.

See Scheiner, 465 A.2d at 142 (stating that matters dehors the record will

not be considered); Bethlehem Steel Corp., 434 A.2d at 1240-1241 (stating

same).

      Further, in advancing her claim of mutual mistake, Appellant improperly

relied on circumstances arising after the entry of the confessed judgment —

the illness and death of her sons’ grandmother, as well as the juvenile court’s

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alleged order that the sons return to Appellant’s home. See Hart, 884 A.2d

at 333. Accordingly, the trial court did not abuse its discretion in denying

Appellant’s motion to strike. See Aquilino, 884 A.2d at 1280.

      In her second claim, Appellant asserts that the trial court erred in finding

there was no misrepresentation by Landlord, which induced Appellant to agree

to the consent judgment. Appellant relies on her own deposition testimony,

which was not made a part of the record, to support her claim that she relied

on Ms. Spencer’s statement that Appellant could “simply transfer her [HUD]

status to another property.” Appellant’s Brief at 12. Appellant further avers

that Ms. Spencer acknowledged, in a September 18, 2018 deposition, that

Appellant may have misunderstood her. We disagree.

      Similar to her first claim, Appellant’s argument asks the trial court to

consider facts or evidence (Appellant’s and Ms. Spencer’s September 2018

deposition testimony) both dehors the record and arising after the consent

judgment of June 20, 2018. See Aquilino, 884 A.2d at 1280. As the trial

court cannot consider this evidence, it did not abuse its discretion in denying

Appellant’s motion to strike the consent judgment. See id.

      Finally, Appellant asserts that she was entitled to remain in the property

while her appeal was pending under a supersedeas pursuant to 68 P.S. §

250.513(b). This subsection provides that in an action for the recovery of

possession of real property or rent, a tenant’s appeal to the Court of Common

Pleas will generally act as a supersedeas if the tenant pays rent into escrow.


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68 P.S. § 250.513(b). The subsection further provides that supersedeas will

terminate if the tenant fails to pay rent into escrow. Id. Appellant points out

that the statute does not provide other grounds for termination of the

supersedeas, and extrapolates from this silence that a supersedeas will

continue after the trial court’s final ruling and through an appeal before the

Superior Court. Again, we disagree.

      When “we must interpret a statute to resolve [an a]ppellant’s issues,

our standard of review is de novo and our scope of review is plenary.”

Generation Mortg. Co. v. Nguyen, 138 A.3d 646, 649 (Pa. Super. 2016)

(citation omitted). “Under the Statutory Construction Act, the object of all

statutory construction is to ascertain and effectuate the General Assembly’s

intention. When the words of a statute are clear and free from all ambiguity,

the letter of the statute is not to be disregarded under the pretext of pursuing

its spirit.” Id. (citation omitted).

      Section 250.513 of the Landlord and Tenant Act of 1951, upon which

Appellant relies, provides:

      § 250.513. Appeal by tenant to common pleas court

            (a) Every tenant who files an appeal to a court of
      common pleas of a judgment of the lower court involving an
      action under this act for the recovery of possession of real
      property or for rent due shall deposit with the prothonotary a sum
      equal to the amount of rent due as determined by the lower court.
      ...

            (b) Within ten days after the rendition of judgment by a
      lower court arising out of residential lease . . . either party may
      appeal to the court of common pleas, and the appeal by the

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     tenant shall operate as a supersedeas only if the tenant pays in
     cash or bond the amount of any judgment rendered by the lower
     court . . . and pays in cash any rent which becomes due during
     the court of common pleas proceedings within ten days after the
     date each payment is due into an escrow account with the
     prothonotary or the supersedeas shall be summarily terminated.

68 P.S. § 250.513(a)-(b) (emphasis added).

     Appellant ignores that the title, as well as the plain language, of Section

250.513 refers solely to appeals from a “lower court” “to a court of common

pleas.” See 68 P.S. § 250.513(a)-(b). The applicability of these provisions

to appeals before the Court of Common Pleas is clear and unambiguous, but

Appellant’s suggested interpretation – that the supersedeas extends beyond

an appeal to the Court of Common Pleas – is not supported by the statute.

See Generation Mortg. Co., 138 A.3d at 649. Accordingly, no relief is due.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2019




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