J-S22016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 STEVEN BELLANO AND NANCY BELLANO                  IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA

                             Appellees

                        v.

 NADIAYAH GOVAN AND TAHIR LOWRIE,
 INDIVIDALLY AND T/A ANGELS OF MINE

                             Appellants               No. 2488 EDA 2017


                 Appeal from the Order Entered June 28, 2017
               In the Court of Common Pleas of Delaware County
                        Civil Division at No: 17-001760

BEFORE:      BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.:                             FILED JUNE 05, 2018

       Appellants, Nadiayah Govan and Tahir Lowrie, individually and trading

as Angels of Mine, appeal from an order denying their petition to strike or

open a judgment by confession against them. We affirm.

       On April 23, 2013, Appellants entered into a lease as tenants for

commercial space located at 150 West 5th Street in Chester, Pennsylvania

(“the property”).      Appellees were the lessors of the property.   Appellants

accepted the property in an “as is” condition, and they intended to use it as a

daycare center, with rent commencing following remodeling and receipt of

required governmental approvals and licenses.


____________________________________________


* Retired Senior Judge assigned to the Superior Court.
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      On February 21, 2017, Appellees entered a confession of judgment

against Appellants pursuant to a confession of judgment clause in the lease

due to Appellants’ failure to pay rent from August 2016 onward. The judgment

was only for possession of the leasehold premises and not for money. On

March 23, 2017, Appellants filed a petition to strike or open the judgment. On

June 29, 2017, following oral argument, the trial court denied Appellants’

petition.

      On July 10, 2017, Appellees filed a praecipe for writ of possession on

the confessed judgment. On July 28, 2017, Appellants filed a timely notice of

appeal.     Both Appellants and the trial court subsequently complied with

Pa.R.A.P. 1925. Appellants, however, did not move for a supersedeas or a

stay of execution following their appeal.   Consequently, on September 6,

2017, the sheriff served the writ of possession and ejected Appellants from

the premises.

      Appellants raise the following questions on appeal:

      1. Whether the lower court erred in refusing to open judgment
      and allow Appellants’ claims to proceed to trial, where Appellants
      raised the issue of breach of contract by Appellees for failure to
      make the rental premises fit for habitation and Appellants’
      purposes, when Appellees knew that the premises would be used
      for daycare?

      2. Whether the lower court abused its discretion in not allowing
      testimony and evidence from Appellants, prior to making its
      determination to deny Appellants’ petition to open judgment?

      3. Whether the lower court erred in not opening Appellees’
      judgment by confession and allowing Appellants to plead their
      claims where the judgment was unlawfully taken against
      Appellants by Appellees?

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Appellants’ Brief at 4.

      In response, Appellees argue that this appeal is moot because the sheriff

ejected Appellants from the premises on September 6, 2017. We agree with

Appellees.

      “As a general rule an actual case or controversy must exist at all
      stages of the judicial process, and a case once ‘actual’ may
      become moot because of a change of facts.” In re Estate of
      Dorone, [] 502 A.2d 1271, 1274 ([Pa. Super.] 1985). “The
      appellate courts of this Commonwealth will not decide moot or
      abstract questions except in rare instances when the question
      presented is one of great public importance, or when the question
      presented is capable of repetition yet escaping judicial review.”
      Graziano Constr. Co. v. Lee, [], 444 A.2d 1190, 1193 ([Pa.
      Super.] 1982) []. 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.      Cf. Pennsylvania Coal Mining Ass’n v.
      Commonwealth Dep’t of Envtl. Resources, [] 444 A.2d 637,
      638 ([Pa.] 1982) (stating that “[n]o purpose is presently served
      by passing upon the legitimacy of orders that at this point have
      no legal force and effect.”).

Johnson v. Martofel, 797 A.2d 943, 946 (Pa. Super. 2002).

      Review of several rules of appellate procedure will place the issue of

mootness in proper context. Pennsylvania Rule of Appellate Procedure 1732

provides in relevant part:

      Application for a stay of an order of a trial court pending appeal,
      or for approval of or modification of the terms of any supersedeas,
      or for an order suspending, modifying, restoring, or granting an
      injunction during the pendency of an appeal, or for relief in the
      nature of peremptory mandamus, must ordinarily be made in the
      first instance to the trial court, except where a prior order under
      this chapter has been entered in the matter by the appellate court
      or a judge thereof.




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Pa.R.A.P. 1732(a).       In addition, Pennsylvania Rule of Appellate Procedure

1733 provides in relevant part:

       (a) General rule. An appeal from an order which is not subject
       to Rule 1731[1] (automatic supersedeas of orders for the payment
       of money) shall, unless otherwise prescribed in or ordered
       pursuant to this chapter, operate as a supersedeas only upon the
       filing with the clerk of the court below of appropriate security as
       prescribed in this rule. Either court may, upon its own motion or
       application of any party in interest, impose such terms and
       conditions as it deems just and will maintain the res or status quo
       pending final judgment or will facilitate the performance of the
       order if sustained.

       (b) Tangible property.          When the order determines 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, the amount of the
       additional security shall be fixed by agreement of the parties, or
       by the court, at such sums only as will secure any damages for
       the use and detention of the property, interest, the costs of the
       matter and costs on appeal.

       (c) Other cases. In all other cases the security shall be in such
       amount as the lower court in the first instance or the appellate
       court or a judge thereof shall deem just and proper.

Pa.R.A.P. 1733.

       In this case, Appellants did not move for a stay under Rule 1732 or move

for an order directing them to file appropriate security with the prothonotary


____________________________________________


1  Pa.R.A.P. 1731 provides in relevant part: “[A]n appeal from an order
involving solely the payment of money shall, unless otherwise ordered
pursuant to this chapter, operate as a supersedeas upon the filing with the
clerk of the lower court of appropriate security in the amount of 120% of the
amount found due by the lower court and remaining unpaid.” Pa.R.A.P.
1731(a).

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under Rule 1733. Thus, nothing prevented Appellees from executing the writ

of possession on September 6, 2017.

      The execution of the writ rendered this appeal moot. Johnson, supra.

In Johnson, a tenant refused to comply with a stipulation and a subsequent

court order that she would either purchase the property at issue for $15,000,

find another buyer for it, or vacate the property. The prothonotary issued a

writ of possession that the sheriff was scheduled to execute at 10 a.m. on May

7, 2001. The tenant sought a stay of execution of the writ by petitioning the

trial court at 9:15 a.m. on the day of execution. The trial court concluded that

it lacked sufficient time to consider the tenant’s petition prior to its execution.

Two days later, the court dismissed the petition as moot.

      This Court concluded that the trial court properly dismissed the tenant’s

petition as moot, thus rendering the tenant’s appeal moot:

      [W]e must determine whether the trial court, in ruling upon the
      motion to stay the execution of the writ of possession or set it
      aside, could issue an order that had any legal force or effect by
      granting the requested relief. Clearly, the issue of Appellant’s
      request for a stay of execution of the writ of possession had been
      rendered moot by the sheriff’s execution of the writ. It would
      have been futile for the court to have issued an order staying the
      execution of the writ after the writ had already been executed.
      We must next determine whether there would have been any legal
      force or effect to the court setting aside the writ after it had been
      executed. A writ of possession is simply the legal means for
      executing a judgment of possession. See Pa.R.C.P. 3160. Once
      Appellant was out of possession of the Property, the writ of
      possession became a nullity. The purpose for which the writ
      existed, namely divesting Appellant of possession of the Property,
      had been achieved and therefore, setting aside the writ of
      possession would be of no consequence.


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Id., 797 A.2d at 946–47. We observed that the tenant’s appeal might not

have become moot had the tenant requested additional relief besides

restoration of possession, but because she did not seek additional relief, “the

court could not issue an order that had any legal force or effect . . .” Id. at

947.

       Appellants’ position in this case fares worse than the tenant’s position

in Johnson. Whereas the tenant in Johnson requested a stay at the eleventh

hour, Appellants failed to seek any stay prior to execution of the writ. Thus,

the sheriff properly executed the writ, making it impossible for us to enter any

order that has legal force or effect.

       Because this appeal is moot, we will not consider any of the issues that

Appellants raise in their brief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/18




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