Dickson City Auto Realty, LP v. TCB of Lackawanna County ~ Appeal of: Coben Properties, LLC ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dickson City Auto Realty, LP :
:
v. : No. 326 C.D. 2016
: Argued: December 12, 2016
Tax Claim Bureau of Lackawanna :
County :
:
Appeal of: Coben Properties, LLC :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: January 12, 2017
Coben Properties, LLC (Purchaser) appeals from the Order of the Court of
Common Pleas of Lackawanna County (trial court) that granted a Petition to Set
Aside Tax Sale (Petition) filed by Dickson City Auto Realty, LP (Taxpayer). At
issue is whether the evidence established that the Tax Claim Bureau of
Lackawanna County (Bureau) properly posted the subject property in accordance
with Section 602(e)(3) of the Real Estate Tax Sale Law1 (Tax Sale Law).
Considering the Bureau’s admission that the posting was improper, together with
1
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.602(e)(3).
the testimony at the evidentiary hearing, we find there was sufficient evidence to
support the trial court’s decision and therefore affirm.
This case involves a Tax Upset Sale held on September 28, 2015, at which
the Bureau sold Taxpayer’s Property, located along Route 6, Dickson City
Borough, Lackawanna County, to Purchaser. (Trial Ct. Op. at 1.) On October 22,
2015, Taxpayer filed its Petition, wherein it asserted the Property was improperly
posted. (Petition ¶ 2.) In its Answer to the Petition filed October 29, 2015, the
Bureau admitted the Property was not properly posted and that a constable “affixed
the posting notice upon a telephone pole situated upon the situs of an unrelated
parcel.” (Bureau Answer ¶ 2.) On November 23, 2015, Purchaser filed its
response to the Petition, averring that the Property was properly posted as
evidenced by the Notice of Public Sale. (Purchaser Answer ¶ 2, and Exhibit A
thereto.)
The trial court held an evidentiary hearing on December 4, 2015. At the
hearing, counsel for the Bureau confirmed that the notice was not properly posted
and chose not to participate further in the hearing. (Hr’g Tr. at 4-5.) Purchaser
moved forward and introduced a copy of the Notice of Public Sale, which stated
“Pole 9 ½” was posted on September 7, 2015. (Hr’g Tr. at 7-9; R.R. at 23a.)
Purchaser presented no other evidence. Two witnesses testified on behalf of
Taxpayer. Testifying first was Marlene Evans, a constable, who testified she was
responsible for posting the Property and admitted she improperly did so, despite
there being a number of poles in front of the Property that could have been posted.
(Hr’g Tr. at 9, 12.) She also testified as to the Notice of Return and Claim, (R.R. at
24a), which shows that notice was posted on a pole near a McDonald’s
approximately a quarter of a mile away from the Property on November 17, 2014.
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(Hr’g Tr. at 11-12.) Testifying second was Attorney Matthew Perry who testified
that shortly after the tax sale, he viewed the Property and found no notice posted.
(Hr’g Tr. at 13.) Neither Ms. Evans nor Mr. Perry was cross-examined by
Purchaser. (Hr’g Tr. at 12, 14.)
Based upon the evidence presented, the trial court agreed with Taxpayer that
the Property was not properly posted. Specifically, the trial court found Purchaser,
standing in the shoes of the Bureau, did not show strict compliance with the Tax
Sale Law’s notice provisions by producing evidence or testimony that the Bureau’s
posting was “reasonable and likely to inform the public and the taxpayer of an
intended real property sale.” (Trial Ct. Op. at 3-4 (quoting Cruder v.
Westmoreland Cnty. Tax Claim Bureau, 861 A.2d 411, 416 (Pa. Cmwlth. 2004)).)
As a result, the trial court set aside the tax sale through which Purchaser claims
title. (Trial Ct. Op. at 4.) Purchaser now appeals that order.2
On appeal, Purchaser argues that the Notice of Public Sale, (R.R. at 23a), is
uncontroverted and, as such, the presumption in favor of the tax sale’s validity has
not been overcome. Purchaser dismisses the testimony of Ms. Evans as irrelevant
on the grounds it dealt with a separate notice – Notice of Return and Claim –
posted one year earlier. It contends the trial court confused the Notice of Public
Sale, governed by Section 602, 72 P.S. § 5860.602, and the Notice of Return and
Claim, governed by Section 308(a), 72 P.S. § 5860.308(a). Purchaser claims the
testimony and evidence presented by Taxpayer dealt only with the latter notice and
2
In tax sale cases, the scope of review is whether the trial court abused its discretion, clearly
erred as a matter of law or rendered a decision with a lack of supporting evidence. Rice v.
Compro Distrib., Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006). The trial court is the finder of
fact and therefore has the exclusive authority to weigh the evidence, make credibility
determinations, and draw reasonable inferences from the evidence presented. Id.
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was therefore insufficient. Finally, Purchaser asserts the trial court improperly
imposed a duty or burden on it to overcome the Bureau’s admission that the
posting was improper.
On the other hand, Taxpayer argues it presented valid evidence to rebut the
presumption that notice was proper via the testimony of Ms. Evans and Mr. Perry
and that it was Purchaser who failed to produce any evidence to the contrary.
According to Taxpayer, once it averred notice was deficient or defective, the
burden shifted to the Bureau, or in this case Purchaser, standing in the Bureau’s
shoes, to demonstrate strict compliance with the notice requirements, which
Purchaser did not show. With regard to the argument about the different types of
notices, Taxpayer points out that the Bureau’s response simply stated that notice
was posted on an unrelated parcel, without identifying which notice was being
referenced. Improper posting of notice was also confirmed by the Bureau’s
counsel at the hearing. Furthermore, immediately after Purchaser presented its
lone piece of evidence – the Notice of Public Sale – and before the Notice of
Return and Claim was introduced, Ms. Evans testified she did not post the Property
in question.
Section 602 of the Tax Sale Law provides that, in addition to notice by mail
and publication, a property scheduled for sale must also be posted at least 10 days
prior to the sale. 72 P.S. § 5860.602(e)(3). The purpose behind the notice
requirements is to ensure compliance with the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. Rice v. Compro
Distrib., Inc., 901 A.2d 570, 574-75 (Pa. Cmwlth. 2006). If any of the three
notices are defective, the tax sale is void. In re Upset Sale Tax Claim Bureau of
4
McKean Cnty. on Sept. 10, 2007 (Miller), 965 A.2d 1244, 1246 (Pa. Cmwlth.
2009).
There is a presumption that official acts, such as tax sales, are valid, and
such presumption of regularity “exists until the contrary appears.” Id. (quoting
Hughes v. Chaplin, 132 A.2d 200, 202 (Pa. 1957)). A property owner may
overcome this presumption by filing exceptions to the tax sale, averring that the
notice provisions were not strictly followed. Id.; see also Barylak v. Montgomery
Cnty. Tax Claim Bureau, 74 A.3d 414, 416 (Pa. Cmwlth. 2013). At this point, the
burden shifts to the bureau to show that it strictly complied with the notice
provisions. Id. In the event a purchaser seeks to have a tax sale upheld as valid,
the purchaser stands in the shoes of the bureau, meaning the burden shifts to the
purchaser to show strict compliance with the Tax Sale Law. Dolphin Serv. Corp.
v. Montgomery Cnty. Tax Claim Bureau, 557 A.2d 38, 39 n.2 (Pa. Cmwlth. 1989),
appeal denied, 575 A.2d 117 (1990).
The statute is silent as to the manner of posting, but the Court has interpreted
it to mean that the method must be “reasonable” and “likely to inform” the
taxpayer and public of the impending sale. Miller, 965 A.2d at 1247. “Precedent
requires that the posting be reasonable, meaning that it must be conspicuous, likely
to ensure notice, and placed for all to observe.” Id. (citing In re Upset Price Tax
Sale of Sept. 10, 1990 (Sortino), 606 A.2d 1255, 1258 (Pa. Cmwlth. 1992)).
With the above principles in mind, the trial court’s decision to set aside the
tax sale is supported by ample evidence and supported by the law, particularly
given Purchaser did not produce any evidence, aside from the Notice of Public
Sale that only vaguely referenced it was posted on “Pole 9 ½,” to contradict
Taxpayer’s evidence. Purchaser relies heavily on a presumption of regularity it
5
contends arose by virtue of the mere introduction of the Notice of Public Sale but
fails to recognize that presumption was overcome when Taxpayer challenged the
adequacy of the posting in its Petition. Barylak, 74 A.3d at 416. Taxpayer not
only averred defective notice, which was itself sufficient to rebut the presumption,
id., but also presented unchallenged testimony from two witnesses, one of whom
was responsible for posting the Property, who testified that the Property was not
posted. (See Hr’g Tr. at 9, 12-14.) Moreover, by the time Purchaser introduced
the Notice of Public Sale upon which it relies, the Bureau had already admitted that
notice was not posted on the correct property, thereby effectively rebutting the
presumption from which Purchaser seeks to benefit.
At this point, it became the Bureau’s and/or Purchaser’s responsibility to
show strict compliance with the Tax Sale Law’s notice provisions. Barylak, 74
A.3d at 416. The Bureau admitted the posting was improper and opted not to
actively participate in the evidentiary hearing. (Bureau’s Answer ¶ 2; Hr’g Tr. at
4-5.) As a result, Purchaser, as the remaining party seeking to uphold the validity
of the tax sale, stood in the Bureau’s shoes and was required to demonstrate strict
compliance with the Tax Sale Law. Dolphin, 557 A.2d at 39 n.2. However,
Purchaser did not demonstrate strict compliance with the statute, as it was required
to do. Barylak, 74 A.3d at 416.
As the trial court stated, Purchaser “may have been able to do so if it had
produced testimony or evidence indicating that the Bureau’s posting of the
property was ‘reasonable and likely to inform the public and the taxpayer of an
intended real property sale.’” (Trial Ct. Op. at 4 (quoting Cruder, 861 A.2d at
416).) Purchaser did not do so, however, despite being cautioned by the trial court
that it was Purchaser’s responsibility, not the Court’s or the Bureau’s, to cross-
6
examine the Taxpayer’s witnesses. (Hr’g Tr. at 10-11.) Instead, Purchaser made a
strategic decision to rest its case solely on a “bare” Notice of Public Sale with the
word “pole” scrawled across it. (Trial Ct. Op. at 4.) Yet, Purchaser did not elicit
any testimony as to where “Pole 9 ½” was located or even if it was located on the
Property. Simply put, there was no evidence that the notice was posted someplace
conspicuous on the Property, let alone that it was likely to ensure notice to the
Taxpayer or public or that it was placed for all to observe. Miller, 965 A.2d at
1246 (citing Sortino, 606 A.2d at 1258). As this Court stated in In re Tax Sale of
Real Property Situate in Paint Township, Somerset County, “[n]either the Bureau
nor the purchaser exerted one erg of energy to overcome the [Taxpayer’s]
exceptions.” 865 A.2d 1009, 1016 (Pa. Cmwlth. 2005). “In these circumstances,
the trial court was required to find the sale of the [property] was not properly
conducted.” Id. Here, the trial court was likewise so confined, and for this reason,
we hereby affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
Judge Cosgrove did not participate in the decision in this case.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dickson City Auto Realty, LP :
:
v. : No. 326 C.D. 2016
:
Tax Claim Bureau of Lackawanna :
County :
:
Appeal of: Coben Properties, LLC :
ORDER
NOW, January 12, 2017, the Order of the Court of Common Pleas of
Lackawanna County dated January 27, 2016, entered in the above-captioned
matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge