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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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