In Re: Consolidated Return of Lackawanna County TCB of the Upset Tax Sale of Properties Held on September 26, 2016 ~ Appeal of: WDD Real Estate, LLC ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Consolidated Return of :
Lackawanna County Tax Claim Bureau :
of the Upset Tax Sale of Properties Held : No. 462 C.D. 2017
on September 26, 2016 : ARGUED: December 4, 2017
:
Appeal of: WDD Real Estate, LLC :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: January 19, 2018
WDD Real Estate, LLC (WDD) appeals from an order of the
Court of Common Pleas of Lackawanna County (trial court) that granted the petition
to set aside upset tax sale to WDD filed by former owner Sherin Mohamed for a
property located at 2210-2212 Brown Avenue, Scranton, PA, Lackawanna County
(Subject Property). In granting the petition, the court directed: (1) Mr. Mohamed
to remit the sum of $2,151.34 to the Lackawanna County Tax Claim Bureau
(Bureau); (2) the Lackawanna County Assessor’s office to update its records with
his correct address; and (3) Mr. Mohamed to notify the assessor of any future change
of address as long as he owns real estate in Lackawanna County. We affirm.
The pertinent background is as follows. In 2010, Mr. Mohamed
purchased the Subject Property for $75,000. October 26, 2010, Deed; Reproduced
Record (R.R.) at 9a. Following his failure to pay outstanding real estate taxes on the
Subject Property, the Bureau selected it to be exposed to public auction at a
September 26, 2016, upset tax sale. Notice to Mr. Mohamed, inter alia, included a
notice of upset sale sent to him bearing an address of 33 Degraw Street, Brooklyn,
NY 11231, by certified mail, restricted delivery, return receipt requested, and
postage prepaid. However, the address in his grantee certification contained in his
deed to the Subject Property identified his address as 335 Degraw Street. In any
event, WDD purchased the Subject Property at that sale for $2,151.34.
Subsequently, Mr. Mohamed filed a February 2017 petition to set aside
upset tax sale, therein averring that he first learned of the sale in January 2017 when
WDD served him with its action to quiet title. February 8, 2017, Petition to Set
Aside Upset Tax Sale, ¶ 9 at 2; R.R. at 3a. In addition, he alleged that, “[s]ince [he]
never received any tax bills for the [Subject Property], he, from time to time, would
appear in person before the appropriate taxing bodies and inquire as to the current
amount due and remit the amount requested at that time.” Id., ¶ 5 at 2; R.R. at 3a.
In that regard, he averred that he had a January 2017 title search performed which
indicated that the Bureau had sent notices and certified letters, addressed to him, to
an erroneous address. Accordingly, Mr. Mohamed objected to the September 2016
upset tax sale and requested that the trial court grant his petition to set aside that sale.
At the March 2017 hearing on Mr. Mohamed’s petition, the participants
included counsel for Mr. Mohamed, counsel for the Bureau, and Mr. Deliman, Esq.,
as counsel and sole member of WDD. At that time, the Bureau acknowledged that
it had sent the notice to the wrong address and opined, therefore, that notice was
defective such that it should be fatal to the upset tax sale. In response, Mr. Deliman
testified as to his belief that Mr. Mohamed as a realtor should have made inquiries
about the absence of a tax bill for six years and “straightened it out.” Mr. Deliman
2
presented no other testimony or documents in support of his contentions regarding
an alleged fraudulent scheme, other than those attached to the pleadings. 1 The trial
court granted Mr. Mohamed’s petition and WDD’s appeal to this Court followed.
On appeal, we consider whether the trial court erred in granting Mr.
Mohamed’s petition to set aside the upset tax sale to WDD based on defective notice.
In considering this issue, we note that Section 602 of the Real Estate Tax Sale Law
(Tax Sale Law)2 requires the Bureau to provide three separate methods of notice: (1)
publication at least thirty days prior to the sale, (2) notification by certified mail at
least thirty days prior to the sale, and (3) posting of the property at least ten days
prior to the sale. If any of the three types of notice is defective, the tax sale is void.
Hunter v. Washington Cty. Tax Bureau, 729 A.2d 142 (Pa. Cmwlth. 1999). The
burden of proving compliance with all applicable notice provisions is placed on the
taxing authority. McElvenny v. Bucks Cty. Tax Claim Bureau, 804 A.2d 719 (Pa.
Cmwlth. 2002). Further, the Tax Sale Law requires strict compliance with its notice
provisions to guard against the deprivation of property without due process of law.
Difenderfer v. Carbon Cty. Tax Claim Bureau, 789 A.2d 366 (Pa. Cmwlth. 2001).
In the present case, counsel for the Bureau stated at the beginning of
the hearing on Mr. Mohamed’s petition that, after reviewing the file, he determined
that there was a defective mail notice that, in his opinion, should be fatal to the upset
sale to WDD. March 23, 2017, Hearing, Notes of Testimony (N.T.) at 2; R.R. at
65a. In turn, Mr. Deliman did not dispute that the notice was defective in that the
Bureau mailed it to 33 Degraw Street instead of 335 Degraw Street, the address that
the Bureau had on file for Mr. Mohamed’s residence at the time of sale. Id. at 4;
1
Regarding those pleadings, the trial court observed that Mr. Deliman failed to attach a notice
to plead with his answer. March 23, 2017, Hearing, Notes of Testimony (N.T.) at 6; R.R. at 69a.
2
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.602.
3
R.R. at 67a. In addition, there was no dispute that Mr. Mohamed provided the
correct address at the time he purchased the property. Id. at 7; R.R. at 70a.
Nonetheless, WDD argues on appeal that the trial court erred in granting the petition,
contending that Mr. Mohamed’s conduct in failing to inquire in the six years that he
owned the property as to why he did not receive tax bills should have superseded the
Bureau’s defective notice. Accordingly, WDD argues that we should reverse the
trial court’s order or remand for a hearing as to whether Mr. Mohamed received
actual notice from his tenants, one of whom allegedly shares the same last name.
We reject WDD’s position.
It is well established that, “the focus is not on the alleged neglect of the
owner, which is often present in some degree, but on whether the activities of the
Bureau comply with the requirements of the statute.” In re Consol. Return of Tax
Claim Bureau of the Cty. of Beaver from August 16, 2011 Upset Sale for Delinquent
Taxes, 105 A.3d 76, 81 (Pa. Cmwlth. 2014), appeal denied, 121 A.3d 497 (Pa. 2015)
(citation omitted). Accordingly, even if the absence of tax bills should have raised
questions for Mr. Mohamed, the trial court did not err in granting his petition to set
aside the tax sale to WDD and in determining that no further hearing was warranted.
As noted, the notice provisions of the Tax Sale Law are to be strictly construed lest
a person be deprived of property without due process. Maya v. Cty. of Erie Tax
Claim Bureau, 59 A.3d 50, 55 (Pa. Cmwlth. 2013).
Accordingly, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Consolidated Return of :
Lackawanna County Tax Claim Bureau :
of the Upset Tax Sale of Properties Held : No. 462 C.D. 2017
on September 26, 2016 :
:
Appeal of: WDD Real Estate, LLC :
ORDER
AND NOW, this 19th day of January, 2018, the order of the Court of
Common Pleas of Lackawanna County is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge