FS Partners v. York County TCB and T.R. Steele , 132 A.3d 577 ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
FS Partners, :
Appellant :
:
v. : No. 1109 C.D. 2015
: Argued: December 7, 2015
York County Tax Claim Bureau :
and Thomas R. Steele :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: January 7, 2016
This is an appeal filed by FS Partners (FS) from a decision of the
Court of Common Pleas of York County (trial court) overruling its objections and
exceptions to an upset tax sale of a property in North Codorus Township, York
County that it owned (the Property). For the reasons set forth below, we affirm.
FS is a Pennsylvania general partnership whose partners are Jerry T.
Stahlman, a professional engineer, and Fitz & Smith, Inc., a corporation in the
business of excavating and paving. (Stahlman Dep. at 5-6, 11, Reproduced Record
(R.R.) at 80, 82; Smith Dep. at 25, R.R. at 85; Partnership Agreement, R.R. at 99-
103.) Timothy Smith is the representative of Fitz & Smith, Inc. who signed the FS
partnership agreement on its behalf and who deals with matters concerning FS on
Fitz & Smith, Inc.’s behalf. (Smith Dep. at 26-27, R.R. at 85-86.) FS was formed
to acquire and develop the Property and purchased the Property in 2003.
(Partnership Agreement ¶¶1, 5, R.R. at 99-100; Deed, R.R. at 114-120.) The deed
to the Property lists the owner of the Property as “FS Partners, a Pennsylvania
general partnership” and York County Tax Claim Bureau (Bureau) records list the
owner of the Property as “FS Partners.” (Deed, R.R. at 114; Bureau Tax File, R.R.
at 150, 152.) Two recorded 2003 mortgages on the Property, which were paid off
before August 2014, list FS as the mortgagor and are signed by Stahlman and by
Smith as a representative of Fitz & Smith, Inc. (Lynwood Mortgage, R.R. at 121-
125; Peoples Bank Mortgage, R.R. at 130-137; Smith Dep. at 29, 31-34, R.R. at
86-87; Stahlman Dep. at 14-16, R.R. at 82-83.) The Property consists of
approximately 20 acres of unoccupied, wooded land that has a street, water line
and storm sewer running through it. (Stahlman Dep. at 7-8, R.R. at 81.)
FS’s principal place of business is 139 East Market Street, York,
Pennsylvania, 17401, a building owned by Stahlman that is also Stahlman’s
business address. (Trial Court Op. at 2; Partnership Agreement ¶¶2, 3, R.R. at 99;
Stahlman Dep. at 5-6, 12-13, R.R. at 80, 82.) Stahlman keeps a file of all FS
paperwork, handles payment of FS’s bills, including real estate tax bills, and is the
designated tax matters partner on FS’s federal tax return. (Stahlman Dep. at 7-9,
12-14, R.R. at 81-82; Smith Dep. at 27-28, R.R. at 86; FS 2013 Federal Partnership
Income Tax Return, R.R. at 106.) The address of Fitz & Smith, Inc. is 483 Locust
Street, Dallastown, Pennsylvania. (Partnership Agreement ¶3, R.R. at 99.)
FS did not pay its 2012 real estate taxes for the Property. (Bureau Tax
File, R.R. at 150, 152; Stahlman Dep. at 8-9, R.R. at 81.) Stahlman knew that the
taxes were unpaid and did not intend for FS to pay the real estate taxes until a
notice of tax sale was received. (Trial Court Op. at 2; Stahlman Dep. at 8-9, R.R.
at 81.) The Bureau published notice that the Property would be sold at a tax sale in
the York Daily Record and posted a notice of the tax sale on the Property more
2
than 30 days before September 25, 2014. (Steele Dep. at 38-43, R.R. at 88-90;
Bureau Tax File, R.R. at 151.) Neither Stahlman nor Smith visited the Property in
2014 and neither was aware of the posting or published notice of tax sale. (Trial
Court Op. at 2-3; Stahlman Dep. at 8, 10, R.R. at 81; Smith Dep. at 30, 34-35, R.R.
at 86-88.)
The Bureau also sent a notice of the tax sale by certified mail to FS at
its 139 East Market Street, York, Pennsylvania, 17401 address on August 22, 2014,
notifying FS that the Property would be sold at a tax sale on September 25, 2014.
(Bureau Tax File, R.R. at 153.) The Bureau received a certified mail receipt from
the U.S. Postal Service showing that the notice of tax sale was delivered at 11:19
a.m. on August 26, 2014 and showing a signature of an individual who signed for
it. (Id., R.R. at 157.) The signature, signed on an electronic signature pad, is of
poor quality but appears similar to Stahlman’s signature on other documents.
(Trial Court Op. at 5; compare Bureau Tax File, R.R. at 157 with Partnership
Agreement at 5, R.R. at 103 and Lynwood Mortgage at 5, R.R. at 125.) No further
notice of tax sale was mailed to FS or Stahlman and no notice of the tax was sent
to Smith or Fitz & Smith, Inc.
On September 25, 2014, the Bureau sold the Property to appellee
Thomas R. Steele (Purchaser) at an upset tax sale. (Trial Court Op. at 1-2;
Objections and Exceptions ¶4, R.R. at 5; Reply to Objections and Exceptions ¶4,
R.R. at 45.) Purchaser’s successful bid was $20,000 (a total of $21,458.76,
including transfer taxes and recording fees). (Objections and Exceptions ¶5, R.R.
at 5; Reply to Objections and Exceptions ¶5, R.R. at 45; Bureau Tax File, R.R. at
156.) The upset price set by the Bureau was $6,630.44. (Objections and
3
Exceptions ¶5, R.R. at 5; Reply to Objections and Exceptions ¶5, R.R. at 45;
Bureau Tax File, R.R. at 156.)
FS filed a petition to set aside the tax sale, which was amended by
stipulation to objections and exceptions to the tax sale, challenging the sufficiency
of the notice of the tax sale under the Real Estate Tax Sale Law.1 In its objections
and exceptions, FS named both the Bureau and Purchaser as respondents.
(Objections and Exceptions ¶¶2-3, R.R. at 5.) The parties submitted to the trial
court depositions of Stahlman, Smith and Purchaser, an affidavit of a handwriting
expert, and the Bureau file concerning the Property. The trial court decided the
objections and exceptions on that record, with oral argument and briefs from the
parties. No evidentiary hearing was requested by any party; FS sought only that an
argument date be set. (Petition for Order for Rule to Show Cause at 2.)
Stahlman testified in his deposition that he never saw the August 2014
tax sale notice, but admitted that he received a later notice sent by the Bureau to
the same address advising that the Property had been sold and that when he
received that later notice he never looked in the file where he kept FS papers to see
if he had the August 2014 tax sale notice in his file. (Stahlman Dep. at 8, 11-12,
R.R. at 81-82.) Stahlman testified that the printed name on the certified mail
receipt was not written the way that he prints his name and that, with respect to the
signature, “I can’t verify that it’s my signature” and “I don’t recognize” the
certified receipt signature “as my signature.” (Id. at 17-19, 24-25, R.R. at 83-85.)
Stahlman admitted that he was not away on vacation on Tuesday, August 26, 2014,
that he was generally at the 139 East Market Street office about 60% of the time on
1
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101-5860.803.
4
workdays, and that he “could very well have been there” at the time the certified
mail receipt was signed. (Id. at 9-10, 19, R.R. at 81, 84.) Stahlman testified that
he was the only person who worked regularly at 139 East Market Street and that
although he has some “subcontract people that I do work with that come and go”
and the building is an apartment building, he could not say “who might have been
in there that day,” other than himself. (Id. at 9, 19, R.R. at 81, 84.)
The handwriting expert whose affidavit was submitted by FS
concluded that she could not determine whether or not the certified mail receipt
was signed by Stahlman because the poor quality of the certified mail receipt
signature and the insufficiency of the samples of Stahlman’s signature that were
provided to her prevented a full comparison and a determination whether the
certified mail receipt signature “was freely and naturally executed.” (Miller
Affidavit & Report, R.R. at 59-65.) Neither Stahlman nor the handwriting expert,
however, opined that the signature on the certified mail receipt was not a signature
of Stahlman’s name.
On June 24, 2015, the trial court issued an order and opinion
overruling the objections and exceptions and confirming the sale of the Property to
Purchaser. FS timely appealed the trial court’s decision to this Court.2
2
In tax sale cases, this Court’s review is limited to determining whether the common pleas court
abused its discretion, clearly erred as a matter of law, or rendered a decision with a lack of
supporting evidence. Dwyer v. Luzerne County Tax Claim Bureau, 110 A.3d 223, 225 n.2 (Pa.
Cmwlth. 2015). FS’s contention that this appeal must be reviewed under the standard for review
for summary judgment is without merit. As noted above, FS did not request a testimonial
hearing or object to the trial court adjudicating the case on the depositions and other written
evidence submitted by the parties. The trial court therefore properly ruled on FS’s objections
and exceptions as the fact finder on the record submitted to it.
5
Section 602 of the Real Estate Tax Sale Law requires a tax claim
bureau to provide notice of a tax sale by three separate methods: publication at
least 30 days prior to the sale, posting of the property at least 10 days prior to the
sale and notification sent to the owner or owners by certified mail at least 30 days
prior to the sale. 72 P.S. § 5860.602; Krumbine v. Lebanon County Tax Claim
Bureau, 663 A.2d 158, 159-60 (Pa. 1995); In re Upset Tax Sale Held 11/10/97, 784
A.2d 834, 836 (Pa. Cmwlth. 2001). Each of these notices must be given for a tax
sale to be valid. Upset Tax Sale Held 11/10/97, 784 A.2d at 836; Perma Coal-
Sales, Inc. v. Cambria County Tax Claim Bureau, 638 A.2d 329, 330 (Pa. Cmwlth.
1994) (en banc). Section 602(e) provides, with respect to certified mail notice,
that:
… notice of the sale shall also be given by the bureau as
follows:
(1) At least thirty (30) days before the date of sale, by
United States certified mail, restricted delivery, return receipt
requested, postage prepaid, to each owner as defined by this
act.
(2) If return receipt is not received from each owner
pursuant to the provisions of clause (1), then, at least ten (10)
days before the date of the sale, similar notice of the sale shall
be given to each owner who failed to acknowledge the first
notice by United States first class mail, proof of mailing, at
his last known post office address by virtue of the knowledge
and information possessed by the bureau, by the tax collector
for the taxing district making the return and by the county
office responsible for assessments and revisions of taxes. It
shall be the duty of the bureau to determine the last post office
address known to said collector and county assessment office.
72 P.S. § 5860.602(e)(1), (2).
In this Court, FS challenges only the sufficiency of the certified mail
notice; FS does not dispute that the Bureau satisfied the requirements of notice by
6
publication and posting of the Property and does not challenge content of any of
the notices given by the Bureau. FS contends that the Bureau’s certified mail
notice was deficient on two grounds: 1) that it was not proven that Stahlman
himself signed the certified mail receipt and actually received the notice of tax
sale; and 2) that the Bureau did not send a separate notice of the tax sale to the
other partner in FS, Fitz & Smith, Inc.
FS’s argument that the certified mail receipt was insufficient is
without merit. When exceptions are filed to a tax sale, the burden of proof is on
the tax claim bureau to prove compliance with the notice requirements of the Real
Estate Tax Sale Law. In re 2005 Sale of Real Estate by Clinton County Tax Claim
Bureau Delinquent Taxes, 915 A.2d 719, 723 (Pa. Cmwlth. 2007); Difenderfer v.
Carbon County Tax Claim Bureau, 789 A.2d 366, 368 (Pa. Cmwlth. 2001). This
does not, however, require proof that the property owner actually signed the
certified mail receipt or actually received the notice. Rather, the tax claim bureau
must only show that it sent all required notices to the property owner or owners,
not that the owner or owners actually received the notice of tax sale. 72 P.S. §
5860.602(h); Upset Tax Sale Held 11/10/97, 784 A.2d at 837. Section 602(h) of
the Real Estate Tax Sale Law provides that “[n]o sale shall be defeated and no title
to property sold shall be invalidated because of proof that mail notice as herein
required was not received by the owner, provided such notice was given as
prescribed by this section.” 72 P.S. § 5860.602(h).
Here, it was shown that the Bureau fully complied with Section 602(e)
with respect to the notice of the tax sale that it sent to FS. The record showed and
the trial court found that certified mail notice was sent to FS at its correct address
more than 30 days before the September 25, 2014 tax sale, and that a signed return
7
receipt evidencing delivery was obtained. (Trial Court Op. at 2, 5; Bureau Tax
File, R.R. at 153, 157; Partnership Agreement ¶2, R.R. at 99; Stahlman Dep. at 6,
R.R. at 80.) The evidence established and the trial court found that the signature
on the receipt appeared to be Stahlman’s signature. (Trial Court Op. at 5; Bureau
Tax File, R.R. at 157; Partnership Agreement at 5, R.R. at 103; Lynwood
Mortgage at 5, R.R. at 125.) Stahlman was authorized to act for FS in receiving
tax notices and paying its taxes. (Stahlman Dep. at 7-9, 12-14, R.R. at 81-82;
Smith Dep. at 27-28, R.R. at 86; FS 2013 Federal Partnership Income Tax Return,
R.R. at 106.)
FS is correct that a signature on the return receipt of a name other than
that of the owner or an individual authorized to sign for the owner is insufficient to
satisfy the tax bureau’s certified mail notice obligation. Perma Coal-Sales, Inc.,
638 A.2d at 331 (signatures of persons who lacked authority to act for corporation
insufficient); Gill v. Tax Claim Bureau of Monroe County, 616 A.2d 198, 199 (Pa.
Cmwlth. 1992) (wife’s signature of her own name insufficient to constitute return
receipt for husband’s notice); Ali v. Montgomery County Tax Claim Bureau, 557
A.2d 35, 37 (Pa. Cmwlth. 1989) (signature of name other than owner insufficient
absent evidence that signer had authority to accept mail for owner); Mangine
Appeal, 487 A.2d 45, 46-47 (Pa. Cmwlth. 1985) (wife’s signature of her own name
insufficient to constitute return receipt for husband’s notice); see also Estate of
Smith v. Pike County Tax Claim Bureau, (Pa. Cmwlth., No. 841 C.D. 2011, filed
Dec. 19, 2011), slip op. at 8-9, 2011 WL 10844286 at *4 (return receipt stamp of
post office not shown to have authorization to accept mail for owner insufficient).
The signature here, however, was in the name of an individual authorized to act for
8
FS and accept tax notices on its behalf. Lack of authority was therefore not an
issue here and cannot invalidate the notice.
Contrary to FS’s contentions, no showing was required that Stahlman
was the person who actually received and signed the certified mail receipt. As
noted above, the issue on objections and exceptions to a tax sale is the sufficiency
of the tax bureau’s actions in sending the required notices. 72 P.S. § 5860.602(h).
Accordingly, where the signature on the certified mail receipt appears to be the
signature of the owner or of an individual authorized to act for the owner, the tax
claim bureau has satisfied its certified mail notice obligations and the tax sale
cannot be set aside for failure to provide certified mail or regular mail notice, even
if the signature was not the actual signature of the owner or its agent and the owner
did not receive the notice and had no knowledge of the tax sale. Upset Tax Sale
Held 11/10/97, 784 A.2d at 835-37 (return receipt bearing signature of husband-
owner’s name was sufficient to satisfy certified mail notice requirement with
respect to husband-owner, even though wife signed his name and did not inform
him of tax sale); McCartan v. Montgomery County Tax Claim Bureau, (Pa.
Cmwlth., No. 1162 C.D. 2007, filed June 2, 2008), slip op. at 2-3, 6-8, 2008 WL
9398624 at *1-*3 (return receipt purportedly bearing owner’s signature sufficient
to satisfy certified mail notice requirement, despite claims that owner was away at
the time and that signature was forged). Because the signature on the return receipt
appeared to be Stahlman’s signature, the Bureau satisfied its notice obligation
regardless of whether Stahlman actually signed the receipt, and his claim that he
did not receive the certified mail notice, even if found credible, could not
invalidate the sale. Upset Tax Sale Held 11/10/97, 784 A.2d at 837. Accordingly,
9
the trial court did not err in finding that the certified mail notice to FS was
sufficient under the Real Estate Tax Sale Law.3
FS’s contention that the Real Estate Tax Sale Law required the
Bureau to give certified mail notice to each of its two partners likewise fails. The
Real Estate Tax Sale Law requires that the certified mail notice be sent to “each
owner as defined by this act.” 72 P.S. § 5860.602(e)(1). Section 102 of the Real
Estate Tax Sale Law defines “owner” in relevant part as
the person in whose name the property is last registered, if
registered according to law, or, if not registered according to
law, the person whose name last appears as an owner of
record on any deed or instrument of conveyance recorded in
the county office designated for recording and in all other
cases means any person in open, peaceable and notorious
possession of the property, as apparent owner or owners
thereof, or the reputed owner or owners thereof, in the
neighborhood of such property ….
72 P.S. § 5860.102 (emphasis added). Individual notice to each partner in a
general partnership is therefore required where the partners are listed on the deed
or in the tax records. Dwyer v. Luzerne County Tax Claim Bureau, 110 A.3d 223,
224-26 (Pa. Cmwlth. 2015); Boehm v. Barnes, 437 A.2d 784, 785-86 (Pa. Cmwlth.
1981). Here, however, FS was the only owner of the Property listed in the
Bureau’s tax records and the recorded deed. (Deed, R.R. at 114; Bureau Tax File,
3
Difenderfer, relied on by FS, does not support FS’s contention that the certified mail receipt
was insufficient. Difenderfer did not involve sufficiency of a certified mail receipt or legibility
of a signature. Rather, the issue there was the date that the 10-day first-class notice was sent
after no return receipt was received, and the Court held that there was no evidence that notice
was sent more than 10 days before the tax sale because the date on the postmark was completely
illegible and there was no other evidence as to when it was sent. 789 A.2d at 367-68. In this
case, there was no dispute that the date of the certified mail notice complied with the statute and
a return receipt was signed.
10
R.R. at 150, 152.) The names of the partners in FS, Stahlman and Fitz & Smith,
Inc., do not appear in either the deed or the tax records. Accordingly, FS, as the
only “person in whose name the property is last registered” or “person whose name
last appears as an owner of record,” 72 P.S. § 5860.102, was the only “owner as
defined by this act” entitled to the certified mail notice under Section 602. 72 P.S.
§ 5860.602(e)(1). See Krumbine, 663 A.2d at 160 (holding that only the “grantees
listed on the conveyance document … could have been the ‘owner(s)’ of the
property to whom the Tax Bureau was required to send certified mail notice of the
tax sale”).
The fact that FS is a general partnership does not require that separate
notices of a tax sale be given to each of its partners. Under the Uniform
Partnership Act, a general partnership can hold title to real property in its own
name. 15 Pa. C.S. § 8313(c). Although one partner in a general partnership does
not have authority to bind the partnership to a sale of the partnership’s entire real
property, 15 Pa. C.S. §§ 8321(c), 8322(a), the Uniform Partnership Act does not
require that notices with respect to a general partnership be sent to all partners. To
the contrary, the Uniform Partnership Act provides that notice to any partner in a
general partnership concerning partnership affairs operates, absent fraud by a
partner, as sufficient notice to the partnership. 15 Pa. C.S. § 8324; Gwin
Engineers, Inc. v. Cricket Club Estates Development Group, 555 A.2d 1328, 1330
(Pa. Super. 1989); see also Pa. R.C.P. No. 423 (service of process in an action
brought against a partnership and its partners may be made by serving only one
partner).
FS argues that this Court has held that certified mail notice must be
sent to each partner where the property owner is a general partnership. That
11
misstates this Court’s holdings. In Dwyer and Boehm, where this Court required
separate notices of tax sale to each partner, the partners were listed on the deed or
tax records. Dwyer, 110 A.3d at 224 (property was registered in assessor’s office
as owned by the two partners); Boehm, 437 A.2d at 785 (“[t]he deed and mortgage
to the property, and presumably the tax records,” listed the two partners by name
as owning the property as partners). Nothing in either of these decisions holds that
such notice is required where only the partnership is named in the deed and tax
records. In Dwyer, the Court held that the individual partners were entitled to
notice because the registration of the property in their individual names made them
each an “owner” under Section 102 of the Real Estate Tax Sale Law, not because
partnership ownership of property requires notice to the partners. 110 A.3d at 224-
26. In Boehm, although the Court based its ruling on the nature of partnership
property rather than the language of Section 102 of the Real Estate Tax Sale Law,
the Court specifically held that “the bureau is under no obligation to notify ‘silent’
partners or those partners whose names do not appear on tax records.” 437 A.2d
at 785-86.
While this Court has characterized Boehm as holding that “where a
partnership stands as owner of a property, notwithstanding the prior mailing of tax
bills to one partnership address, each partner required separate notice of a tax sale
on the property,” Stanford–Gale v. Tax Claim Bureau of Susquehanna County, 816
A.2d 1214, 1218 (Pa. Cmwlth. 2003); In re Consolidated Return of Luzerne
County Tax Claim Bureau, (Pa. Cmwlth., No. 2091 C.D. 2013, filed July 30,
2014), slip op. at 6, 2014 WL 3756244 at *3 (quoting Stanford–Gale), those
statements are dicta and do not change the holding in Boehm that notice to partners
is not required where the their names do not appear in the property or tax records.
12
Neither Stanford–Gale nor Luzerne County Tax Claim Bureau involved
partnership property or required notice to a person whose name did not appear on
the deed or tax record. Stanford–Gale, 816 A.2d at 1218-19 (notice to one of two
co-administrators of estate was sufficient for tax sale of estate property to be
valid); Luzerne County Tax Claim Bureau, slip op. at 1-3, 7-10, 2014 WL 3756244
at *1, *4-*5 (tax sale invalid because separate notices were not sent to each record
owner where property was jointly owned by family members).
Tracy v. County of Chester Tax Claim Bureau, 489 A.2d 1334 (Pa.
1985), relied on by FS, is also inapplicable here. In Tracy, the Pennsylvania
Supreme Court held that a tax sale of partnership property must be set aside where
the only notice was sent to the partnership at a former address of one partner, who
had left the partnership, and that notice was returned as undelivered. As here, the
deed and tax records contained only the name of the partnership and did not list the
individual partners. Id. at 1335. The issue addressed by the Court in Tracy,
however, was not whether notice must be sent to each individual partner when
notice has been successfully sent to the partnership itself, but what the tax bureau
must do where the notice is not sent to the correct partnership address and is not
successfully delivered. The Court in Tracy held only that the taxing authority must
undertake additional reasonable efforts to ascertain the correct addresses of both
the partnership and its partners “where the mailed notice has not been delivered
because of an inaccurate address.” Id. at 1338-39 (emphasis omitted). There is no
dispute that the address to which the Bureau sent certified mail notice here was the
correct partnership address, and the Bureau received a signed return receipt
showing successful delivery of the notice of tax sale.
13
Because the trial court correctly concluded that the Bureau satisfied its
notice obligations under Section 602(e) of the Real Estate Tax Sale Law and its
decision is supported by the evidence in the record, we affirm.
_______________ ____________________
JAMES GARDNER COLINS, Senior Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
FS Partners, :
Appellant :
:
v. : No. 1109 C.D. 2015
:
York County Tax Claim Bureau :
and Thomas R. Steele :
ORDER
AND NOW, this 7th day of January, 2016, the order of the Court of
Common Pleas of York County in the above-captioned matter is AFFIRMED.
________ ___________________________
JAMES GARDNER COLINS, Senior Judge