J-A01025-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

AHRCO-MONVIEW HEIGHTS,                   : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                  Appellee               :
                                         :
           v.                            :
                                         :
AMBER EUBANKS,                           :
                                         :
                  Appellant              : No. 671 WDA 2014

              Appeal from the Judgment entered June 17, 2014,
                 Court of Common Pleas, Allegheny County,
                        Civil Division at No. LT 13-870

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED FEBRUARY 18, 2015

     Amber Eubanks (“Eubanks”) appeals from the judgment entered by

the Allegheny County Court of Common Pleas on June 17, 2014, following

the trial court’s March 10, 2014 order granting AHRCO-Monview Heights

(“AHRCO”) possession of 28F Midway Drive, Pittsburgh, Pennsylvania 15122

(“the Property”), thereby affirming the arbitration decision in the matter.1

On appeal, she challenges the trial court’s refusal to dismiss the complaint


1
   Eubanks filed her notice of appeal from the March 25, 2014 order denying
her post-verdict motion. It is well-settled law, however, that “[a]n appeal to
this Court can only lie from judgments entered subsequent to the trial
court’s disposition of post-verdict motions, not from the order denying post-
trial motions.” Fanning v. Davne, 795 A.2d 388, 391 (Pa. Super. 2002)
(citation omitted). On June 5, 2014, this Court entered an Order Per Curiam
informing Eubanks that judgment had not been entered, rendering the
appeal interlocutory, and instructing Eubanks to provide proof within
fourteen days that judgment had been entered. Order, 6/5/14. Eubanks
timely complied with our request. Thus, for the sake of judicial economy, we
will “regard as done that which ought to have been done,” and assume
jurisdiction over this appeal. Fanning, 795 A.2d at 392.
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filed by AHRCO as moot following her voluntary relinquishment of the

property to AHRCO on March 7, 2014. Upon review, we affirm.

      The record in this case reflects the following relevant facts and

procedural history.   Eubanks entered into a lease with AHRCO to rent the

Property on May 5, 2009. On November 7, 2012, February 28, 2013 and

May 20, 2013, AHRCO provided Eubanks with fifteen-day notices to vacate

the premises based upon her violation of the lease agreement, including

allegedly permitting known defiant trespassers to live in the Property and

allegedly having been arrested and charged for burglarizing a neighboring

apartment on the premises. Eubanks failed to vacate the Property.

      On September 11, 2013, AHRCO filed a complaint in civil action,

naming Eubanks as the defendant, seeking possession of the Property based

upon the above-alleged failures to abide by the terms of the lease

agreement.    Eubanks filed an answer on October 21, 2013, denying that

AHRCO had grounds to evict her from the Property or that she violated any

material terms of the lease.

      The case proceeded to compulsory arbitration on October 31, 2013,

and the panel of arbitrators entered an award in favor of AHRCO.        On

November 26, 2013, Eubanks filed a timely notice of appeal to the Allegheny

County Court of Common Pleas. A nonjury trial was scheduled for March 10,

2014. That same day, Eubanks filed a motion for a judgment of non pros,




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alleging therein that she voluntarily vacated the Property, rendering the case

moot.

        The trial court permitted argument on the motion prior to proceeding

with the bench trial. At that time, Eubanks clarified that she believed that

because she voluntarily relinquished possession of the Property, the

complaint filed by AHRCO was moot.             N.T., 3/10/14, at 4-5.     AHRCO

disagreed, stating that the appeal was moot, but not the complaint itself.

Id. at 3-4. The trial court agreed with AHRCO, stating:

                 I cannot set aside the Board of Arbitrators[’]
              decision by the mere withdrawing of the [appeal].
              I’m not going to do – I wouldn’t do anything with the
              Board of Arbitrator’s [sic] decision. It stands for
              whatever it’s worth.

                   Whether or not the appeal was withdrawn or
              thrown out or whatever, it wouldn’t matter.        It
              doesn’t change it other than having a hearing to see
              if it will be reinstated.

Id. at 5.

        Following the nonjury trial, the trial court entered a verdict in favor of

AHRCO, granting it possession of the Property and ordering the release of all

escrowed money to AHRCO.          Eubanks filed a timely motion for post-trial

relief on March 20, 2014, requesting that the trial court reconsider her

motion for judgment of non pros or, in the alternative, a directed judgment

in her favor based upon AHRCO’s failure to prove that she committed a

material breach of the lease.      The trial court denied Eubanks’ motion on




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March 25, 2014. Eubanks filed an appeal to this Court on April 24, 2014.

Both Eubanks and the trial court complied with Rule of Appellate Procedure

1925.

        On appeal, Eubanks raises one issue for our review: “Should the trial

court have dismissed [AHRCO’s] [c]omplaint asking for possession of

[Eubanks’] apartment after [Eubanks] surrendered possession of her

apartment to [AHRCO] before trial?” Eubanks’ Brief at 2.

        Our standard of review is as follows:

                  When reviewing the verdict from a bench trial, we
              must review the evidence of record in the light most
              favorable to the verdict winner to determine whether
              competent evidence supports the trial court’s
              findings and whether it erred in reaching its
              conclusions of law. We afford the same weight to the
              trial court’s findings of fact as we do a jury’s verdict.
              We will only reverse if the trial court’s findings of fact
              are unsupported by competent evidence or if it erred
              as a matter of law.

Newman Dev. Grp. of Pottstown, LLC v. Genuardi’s Family Mkt., Inc.,

98 A.3d 645, 652 (Pa. Super. 2014) (en banc) (internal citations omitted);

see also Manack v. Sandlin, 812 A.2d 676, 679-80 (Pa. Super. 2002)

(applying this standard of review to a trial court’s verdict following its

decision on appeal from a compulsory arbitration decision).

        In its written opinion pursuant to Pa.R.A.P. 1925(a), the trial court

found that Eubanks’ request for a judgment of non pros was not supported

by the record, as “[n]o evidence exists that [AHRCO] failed to timely

prosecute this matter.”      Trial Court Opinion, 6/9/14, at 3.     The trial court


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further stated that Eubanks “could have voluntarily withdrawn her appeal

from the [o]rder of the Board of Arbitrators,” but did not do so. Id.

      Eubanks argues that the trial court erred by failing to dismiss AHRCO’s

complaint seeking possession of the Property as moot. Eubanks’ Brief at 7.

She asserts that because AHRCO only sought possession, and it was in

possession of the Property prior to the nonjury trial, no actual controversy

existed, requiring dismissal of the case. Id. at 6-8. She acknowledges on

appeal that “her presentation of the issue was technically defective,” as she

should have filed a motion for summary judgment, not a judgment of non

pros.2 Id. at 11. Nonetheless, she states that the trial court should have

ignored the procedural error and “considered the broader issue of whether or

not to dismiss the case as moot,” and that the trial court could have and

should have dismissed the case on mootness grounds sua sponte.          Id. at

11-13.

      Initially, we observe that Eubanks is incorrect that a motion for

summary judgment would have been proper in this instance. “Only where

there is no genuine issue as to any material fact and it is clear that the

moving party is entitled to a judgment as a matter of law will



2
  “A Court may properly enter a judgment of non pros when a party to the
proceeding has shown a want of due diligence in failing to proceed with
reasonable promptitude, and there has been no compelling reason for the
delay, and the delay has caused some prejudice to the adverse party, such
as the death or unexplained absence of material witnesses.” Stephens v.
Messick, 799 A.2d 793, 797 (Pa. Super. 2002) (citation omitted).


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summary judgment be entered.” Stein v. Magarity, 102 A.3d 1010, 1013

(Pa. Super. 2014) (emphasis added; citation omitted).            The fact that

Eubanks voluntarily relinquished the Property to AHRCO while the case was

pending on appeal before the trial court did not entitle her to judgment as a

matter of law on the issue of whether she breached her lease entitling

AHRCO to possession of the property. Rather, as we explain infra, at most,

her actions entitled her to a dismissal of the appeal.

      The law is clear that any party to a compulsory arbitration has the

right to appeal the arbitration decision for a trial de novo in the Court of

Common Pleas.     42 Pa.C.S.A. § 7361(d).     “Upon entry of the compulsory

arbitration award on the docket and appropriate notice, the award [takes]

the force and effect of a final judgment.”     Stivers Temp. Pers., Inc. v.

Brown, 789 A.2d 292, 294 (Pa. Super. 2001). In the absence of an appeal,

the arbitration decision is a final order and is treated and enforced as any

other judgment. 42 Pa.C.S.A. § 7361(d); Pa.R.C.P. 1307(c).

      The filing of an appeal does not eradicate the decision by the

arbitrators. Rather, it is the new adjudication entered by the trial court after

a de novo trial on the appeal that voids the arbitration decision, as it takes

away the force and effect of the arbitration decision. If the mere filing of an

appeal were enough to vacate the arbitration decision, this would eviscerate

the purpose of compulsory arbitration, rendering the decision of the

arbitrators a nullity. The defendant could use compulsory arbitration to test



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the waters, appeal the decision, and then take action to moot the issue

raised to avoid having a judgment against him or her. This is especially true

where, as here, the appellant is in forma paurperis, and essentially has

nothing to lose.     See Pa.R.C.P. 1308(a)(2) (requiring the party appealing

from the arbitration decision to pay the arbitration fee unless the appellant is

in forma paurperis); Dickerson v. Hudson, 302 A.2d 444, 448-49 (Pa.

Super. 1973) (“The requirement that the appellant repay to the county the

fees of the arbitrators is obviously designed to serve as a brake or deterrent

on the taking of frivolous and wholly unjustified appeals[.]”).

        We recently summarized the mootness doctrine as follows:

              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 can become
              moot during the pendency of an appeal due to an
              intervening change in the facts of the case or due to
              an intervening change in the applicable law. In that
              case, an opinion of this Court is rendered advisory in
              nature. 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.

In re J.A., __ A.3d __, 2015 WL 63002, *10 (Pa. Super. Jan. 6, 2015)

(citation omitted). Where an appeal is mooted by a change in intervening

facts    or   law,   the   appeal   is   subject   to   dismissal.   See,   e.g.,

Commonwealth v. Pruitt, 41 A.3d 1289 (Pa. 2012) (per curiam) (sua

sponte dismissing the Commonwealth’s appeal as moot because subsequent

to the filing of the appeal, the Commonwealth took action to bring itself “in




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full compliance with the trial court’s … discovery order,” which was the basis

for the Commonwealth’s appeal); Wetzel v. Heiney, 17 A.3d 405, 408 (Pa.

Super. 2011).    Eubanks cites no case law (and our research has revealed

none) supporting a finding that a case rendered moot after the filing of a

notice of appeal results in the dismissal of the underlying order that led to

the appeal.    Under established principles, the appeal would become moot

and the decision from which the appeal was taken would remain in effect.

      Furthermore,    although    Eubanks       is   correct    that    her   voluntary

relinquishment of the property to AHRCO left the case devoid of a

controversy, rendering the appeal before the trial court moot, the trial court

did not err by failing to dismiss the appeal as moot.                  There are three

recognized exceptions to the mootness doctrine, which permit decision on a

case despite its mootness:       (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 because of the decision appealed.               In re D.A., 801 A.2d

614, 616 (Pa. Super. 2002) (en banc). Here, as stated by Eubanks, “a final

finding that she breached her lease … would likely affect her ability to find

future   housing,   especially   through    a    federally     subsidiz[ed]    housing

program.”     Eubanks’ Brief at 8 n.1 (citing 24 C.F.R. § 982.552(c)(1)(ii)).

Because Eubanks herself would suffer a detriment because of the arbitration




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decision, the trial court correctly refused to sua sponte dismiss the appeal as

moot.

        Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/18/2015




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