In Re: 2018 Tax Claim Judgment ~ Appeal of: M. Weyant ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: 2018 Tax Claim Judgment :
: No. 1399 C.D. 2019
Appeal of: Mearle Weyant : SUBMITTED: February 9, 2021
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: March 10, 2021
Mearle Weyant (Taxpayer) appeals from the September 25, 2019 order of the
Court of Common Pleas of Blair County (trial court), denying Taxpayer’s post-trial
motions, which objected to an upset tax sale disposing of Taxpayer’s real property.
The issue on appeal is whether notice of the upset tax sale was made as required by
Section 602 of the Real Estate Tax Sale Law (RETSL).1 After review, we affirm.
I. Background
Taxpayer owns real property located in Greenfield Township, Pennsylvania,
which consists of 40.41 acres and at least two structures (Property), including a white
shed (Shed) located at the edge of the property and a garage from which Taxpayer
operates his construction business. Original Record (O.R.), Notes of Transcript
(N.T.), 3/25/19, at 25, Ex. Nos. P-6, P-7, P-10, D-12.
1
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.602. Section 602(a) of RETSL
relevantly provides that notice of an upset tax sale must be made at least 30 days prior to the date
of sale by publication in two newspapers of general circulation within the county and in the county
legal journal. 72 P.S. § 5860.602(a). Notice must also be made 30 days before the date of the sale
by certified mail, restricted delivery, to the property owner, and by posting on the property at least
10 days prior to the sale date. 72 P.S. § 5860.602(e)(1), (2). Taxpayer has not argued that notice
was not made by publication as required by Section 602(a).
After Taxpayer failed to pay real estate taxes assessed on the Property for
2016 and 2017, the Blair County (County) Tax Claim Bureau (Bureau) sent
Taxpayer Notices of Return and Claim by certified mail on March 7, 2017, and
March 1, 2018, advising Taxpayer that the Property would be sold in the event he
failed to satisfy the taxes owed.2 O.R., N.T., id., Ex. Nos. D-2, D-3. The Bureau
mailed the notices to Taxpayer’s home address at Beaver Dam Road in Claysburg,
Pennsylvania. Id. Taxpayer signed certified mail receipts for both notices. Id.
On April 3, 2018, the Bureau mailed a Notice of Public Sale (Notice) to
Taxpayer’s home address, advising Taxpayer that the Property would be exposed to
public sale on September 19, 2018, due to delinquent real estate taxes. Id., Ex. No.
D-5. The United States Postal Service (USPS) sent the Bureau an electronic
notification indicating that the Notice was delivered to Taxpayer’s home address on
April 16, 2018. Id. The electronic notification included a scanned copy of the
certified mail receipt, which purportedly contained Taxpayer’s signature. Id. The
Bureau posted the Notice on the Shed on May 1, 2018, and published it in two
newspapers of general circulation and in the County Legal Bulletin on August 16,
2018. Id., Ex. Nos. D-6, D-9.
The Property was sold at an upset tax sale held on September 19, 2018. O.R.,
Item No. 6. Taxpayer objected to the sale on the basis that he did not receive notice
by certified mail as required by Section 602 of RETSL. O.R., Item No. 26. Taxpayer
also challenged the posting of the Notice as ineffective because he did not own the
Shed or the real property upon which it was located. Id.
2
The March 7, 2017 notice indicated that Taxpayer owed a total of $448.69 in delinquent
taxes for 2016. O.R., N.T., 1/2/19, Ex. No. D-2. The March 1, 2018 notice included the 2017 real
estate tax assessment and penalties, which increased the total amount owed to $1,214.92. Id., Ex.
No. D-3.
2
At a March 25, 2019 hearing before the trial court, Taxpayer’s neighbor,
George Deffibaugh, testified that his home is located across an alleyway from the
Property. O.R., N.T., 3/25/19, at 5. Deffibaugh believed that his property line ran
along a ditch next to the alleyway, and that the Shed was located on “[Deffibaugh’s]
side.” Id. at 5-6. Deffibaugh stated that his truck is parked next to the Shed, which
he walks by “[e]very day.” Id. at 6, 11. Several other vehicles owned by Deffibaugh
are also parked next to the Shed. Id. at 22. Deffibaugh testified that he did not see
the Notice posted by the Bureau, and he would have contacted Taxpayer if he had
seen it. Id. at 6. Deffibaugh’s brother, who resides with him, also testified that he
never saw the Notice posted on the Shed. Id. at 23.
Taxpayer testified that Deffibaugh owns the Shed and he also believed it was
located on Deffibaugh’s property, as Taxpayer thought he “owned to the ditch line”
located behind the rear of the Shed. Id. at 26-27. Taxpayer stated that he is at the
Property every day, but he does not use, or have access to, the Shed. Id. at 26, 33.
Taxpayer confirmed that mail was sent to his home address and that he
received, and signed, the March 7, 2017 and March 1, 2018 Notices of Return and
Claim. Id. at 29-30. Taxpayer denied he received the subsequent Notice mailed to
his home address on April 3, 2018, and he testified that the signature on the USPS
electronic notification was not his, as it was “spread out,” and he “never write[s] like
that.” Id.at 30, 43. Taxpayer was not aware that anyone else ever checked his mail
or signed for items mailed with restricted delivery. Id. at 41.
Taxpayer admitted that he received Notices of Public Sale for a different
property located on Bedford Street in Greenfield Township (Bedford Street
Property). Id. at 44. Taxpayer signed the certified mail receipts for the notices
related to the Bedford Street Property, which were dated March 7, 2017, and March
3
1, 2018, and mailed to his home address. Id. at 46, Ex. No. D-10. Taxpayer denied
receiving a subsequent notice for the Bedford Street Property dated April 3, 2018,
which was also mailed to his home address, and he asserted that the scanned
signature on the USPS electronic notification was “not even close” to his. Id.
However, Taxpayer did not think anyone had “criminally sign[ed his] name” to any
documents. Id. at 54.
Ann Kociola, a Certified Pennsylvania Evaluator with the County Assessment
Office, testified that she personally inspected the Property and Deffibaugh’s
property, and she reviewed the deeds related to those properties. Id. at 65. Based
on her review of the deeds, and the property descriptions contained therein, Kociola
confirmed that the Shed is located on the Property. Id. at 65-66, Ex. Nos. D-11, D-
12. The Bureau introduced an aerial view of a tax map generated by the County
Assessment Office which delineated the boundary lines of the Property. Id. at 66,
Ex. No. D-13. Kociola noted that the Shed is located within the boundary line of the
Property. Id. at 67. Taxpayer did not present any evidence to refute Kociola’s
testimony or the documentary evidence introduced by the Bureau.
In an opinion and order dated August 2, 2019, the trial court found that the
Notice posted on the Shed was conspicuous and visible to the public. O.R., Item
No. 27, Finding of Fact (F.F.) No. 26. Although Deffibaugh owned the Shed, and
both he and Taxpayer believed it was located on Deffibaugh’s property, it was
actually situated on the border of the Property. F.F. Nos. 29, 33-34.
Having considered the testimony and documentary evidence presented, the
trial court found that the Bureau satisfied the certified mail requirements of Section
602 of RETSL when it sent the Notice by certified mail to Taxpayer’s home address
and obtained certified mail receipts which bore Taxpayer’s signature. O.R., Item
4
No. 27 at 16. The trial court recognized that Taxpayer denied the veracity of the
signature on the electronic certified mail receipt sent by USPS. Id. at 16. This
signature was “strikingly similar,” however, to those which Taxpayer admitted were
his. Id. at 16-17. Citing FS Partners v. York County Tax Claim Bureau, 132 A.3d
577, 581 (Pa. Cmwlth. 2016), the trial court noted that Section 602 of RETSL did
not require proof that Taxpayer signed the certified mail receipts or that he actually
received notice. Id. at 17. Rather, the Bureau only had to show that it sent Taxpayer
all required notices; it was not obligated to verify whether the signatures on the
certified mail receipts belonged to Taxpayer. Id. at 16-17.
The trial court also dismissed Taxpayer’s objection with regard to the
sufficiency of the posting. Tax maps provided by the County Assessment Office
confirmed that the Shed upon which the Notice was posted is located on the Property.
Id. at 19. The Notice was visible from the publicly accessible alleyway located
alongside the Shed, which was observable by Deffibaugh and other property owners,
as well as the public at large. Id. Therefore, the trial court found that the Bureau
complied with the posting requirements of Section 602 of RETSL. Accordingly, the
trial court overruled Taxpayer’s objections and upheld the sale of his property at the
September 19, 2019 upset tax sale. Id. Taxpayer filed post-trial motions on August
12, 2019, which the trial court denied on September 24, 2019.
On appeal,3 Taxpayer argues that the trial court erred in overruling his
objections because the Bureau failed to satisfy the certified mail and posting
requirements of Section 602 of RETSL.
3
Our scope of review in tax sale cases is limited to a determination of whether the trial
court abused its discretion, rendered a decision which lacked supporting evidence, or clearly erred
as a matter of law. 777 L.L.P. v. Luzerne Cnty. Tax Claim Bureau, 111 A.3d 292, 296 n.3 (Pa.
Cmwlth. 2015).
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II. Analysis
First, we address whether the trial court erred in concluding that the Bureau
complied with the certified mailing requirements in Section 602(e)(1) of RETSL,
which mandates that the Bureau provide a property owner notice of the sale at least
30 days prior to the date of the sale by USPS certified mail, restricted delivery, return
receipt requested, postage prepaid. 72 P.S. § 5860.602(e)(1). Taxpayer maintains
that he did not receive the April 3, 2018 Notice and that the scanned signature in the
USPS electronic receipt notification is not his.
The Bureau has the burden of proving compliance with the statutory notice
provisions of RETSL. In re Tax Sale of Real Prop. Situated in Jefferson Twp., 828
A.2d 475, 478 (Pa. Cmwlth. 2003). These provisions are to be strictly construed,
and compliance with said provisions is essential to prevent the deprivation of
property without due process. Id. at 479. If any of the three types of notice –
publication, posting, or mail – is defective, the tax sale is void. In re Consol. Reports
& Return by Tax Claims Bureau of Northumberland Cnty. of Props., 132 A.3d 637,
645 (Pa. Cmwlth. 2016).
Section 602(e)(1) of RETSL does not require that the Bureau prove Taxpayer
“actually signed the certified mail receipt or actually received the notice.” FS
Partners, 132 A.3d at 581. The Bureau need only show that it sent all required
notices to Taxpayer, not that he “actually received the notice of tax sale.” Id.
(emphasis in original). Questions of credibility, conflicts in the evidence, and the
weight assigned to the evidence, are matters for the fact finder to resolve and will
not be disturbed on appeal. Matter of Krzysiak, 151 A.3d 292, 297 (Pa. Cmwlth.
2016).
6
In concluding that the Bureau complied with the notice provisions in Section
602(e)(1) of RETSL, the trial court relied on our decision in FS Partners, the
relevant facts of which are as follows.
The taxpayer in FS Partners (FS) was a general partnership, which owned
property consisting of 20 acres of wooded and unoccupied land. FS Partners, 132
A.3d at 578. After FS failed to pay its 2012 real estate taxes, the county tax claim
bureau (bureau) sent a notice of tax sale by certified mail to FS’s principal place of
business.4 Id. at 579. The USPS provided the bureau a certified mail return receipt
which documented receipt of the notice by one of FS’s partners, Jerry Stahlman,
whose signature was captured by an electronic signature pad. Id. The property was
subsequently sold at an upset tax sale. Id. FS sought to set aside the sale on the
basis that it did not receive notice by certified mail. Id. at 580. Stahlman testified
that he could not verify the signature on the certified mail return receipt was his and
that the printed name “was not written the way” Stahlman typically printed his name.
Id. Stahlman admitted he was the only person who regularly worked at FS’s
principal place of business and he could not say who else might have been in the
building on that day. Id. The common pleas court overruled FS’s objections to the
tax sale and FS appealed to this Court, which affirmed. Id.
This Court recognized that the bureau bore the burden of proving compliance
with the notice provisions in RETSL. Id. at 581. The bureau was not, however,
required to prove “that the property owner actually signed the certified mail receipt
or actually received the notice.” Id. Rather, the bureau was only required to show
that it “sent all required notices to the owner or owners, not that the owner or owners
actually received the notice of tax sale.” Id. (emphasis in original). The bureau
4
FS did not dispute that the bureau complied with the publication and posting requirements
of RETSL. FS Partners, 132 A.3d at 581.
7
demonstrated that it sent the tax sale notice to FS at the correct address more than
30 days prior to the date of the sale, the bureau received a signed certified mail
receipt, and the trial court found that the signature on the receipt appeared to be that
of Stahlman, who was authorized to act on FS’s behalf. Id. at 582. We concluded
that the bureau complied with the certified mail requirement in Section 602(e)(1) of
RETSL, and the tax sale could not be set aside on that basis, “even if the signature
was not the actual signature of the owner,” and the owner did not receive the notice
and had no knowledge of the tax sale. Id. (emphasis in original).
Instantly, Taxpayer has not disputed the Bureau’s evidence demonstrating it
mailed the required Notice by certified mail to the correct address. Rather, Taxpayer
argues he did not receive the Notice and he contends that the signature in the
electronic certified mail receipt is not his. The trial court found that this signature
was “strikingly similar” to signatures on other certified mail receipts that Taxpayer
acknowledged as genuine. O.R., Item No. 27, at 16-17. As the evidence shows that
the Bureau sent the Notice to Taxpayer’s home address by certified mail, Taxpayer’s
actual receipt of the Notice is irrelevant. FS Partners, 132 A.3d at 581-82.
Accordingly, the trial court committed no error in concluding that the Bureau
satisfied the certified mail notification requirements set forth in Section 602(e)(1) of
RETSL.
Next, we address whether the Bureau satisfied the posting requirements of
Section 602(e)(3), which provides that the property scheduled for sale shall be
posted at least 10 days prior to the date of the sale. 72 P.S. § 5860.602(e)(3). RETSL
does not prescribe a particular method of posting; however, the method chosen must
be reasonable and likely to inform the taxpayer of an intended real property sale.
Lapp v. Cnty. of Chester, 445 A.2d 1356, 1358 (Pa. Cmwlth. 1982).
8
Taxpayer maintains that the Bureau’s posting of the Notice was insufficient,
as it was placed on the Shed belonging to Deffibaugh, which was located on property
he thought belonged to Deffibaugh. Taxpayer suggests that this belief is bolstered
by the fact that Deffibaugh and his family park their vehicles alongside the Shed.
Given that both Deffibaugh and his brother testified that they did not see the Notice
posted on the Shed, Taxpayer further submits that the Notice was not conspicuously
placed. He takes issue with the Bureau’s failure to post the Notice on any of the
“buildings” from which he operates his construction business, as they are “easily
seen from the [S]hed area,” or on any of the trees or property that Taxpayer would
have traveled by each day. Id.Taxpayer’s subjective belief that the Shed was located on Deffibaugh’s real
property is simply not relevant, as Kociola’s testimony that the Shed was situated on
the Property was uncontroverted, as was the documentary evidence upon which
Kociola relied. The tax map offered by the Bureau demonstrates that the Shed sits
within the boundary line of the Property, and Taxpayer presented no evidence to
suggest the tax map was not accurate. See Hunter v. Wash. Cnty. Tax Bureau, 729
A.2d 142 (Pa. Cmwlth. 1999) (county tax claim bureau reasonably relied on tax
maps which identified the boundary of property sold at tax sale and there was no
evidence to suggest the tax maps were inaccurate).
Taxpayer’s argument that the Bureau failed to post the Notice in a
conspicuous manner is based on his testimony, as well as that of Deffibaugh and his
brother, that they did not see the Notice. The fact that Taxpayer and his witnesses
did not see the posted Notice does not render it inconspicuously placed. Hunter, 729
A.2d at 144. We likewise find no merit to Taxpayer’s argument that the Bureau
should have posted the Notice on one of the buildings which house Taxpayer’s
9
construction business because they are “easily seen from the [S]hed area,” or on trees
or property that Taxpayer would pass as he traveled to the Property. Taxpayer’s Br.
at 18. The Bureau was only required to place the Notice “somewhere on the
premises for all to observe.” Hunter, 729 A.2d at 144. It was not required to first
investigate Taxpayer’s driving habits or travel patterns.
In point of fact, the presence of Deffibaugh’s vehicles next to the Shed acts to
support the Bureau’s decision to post the Notice there, as they were parked on the
Property and one could reasonably believe the vehicles belonged to Taxpayer.
Moreover, the tax map prepared by the County Assessment Office reveals that the
Shed is located near several houses. The trial court found that the Notice was visible
from the publicly accessible alleyway located alongside the Shed, which itself was
observable by Deffibaugh and other property owners, as well as the public at large.
As this finding is supported by substantial evidence, we will not disturb it on appeal.
III. Conclusion
As the record demonstrates that the Bureau satisfied both the certified mail
and posting requirements set forth in Section 602 of RETSL, we affirm the trial
court’s August 2, 2019 order, which overruled Taxpayer’s objections and upheld the
sale of his property at the September 19, 2019 upset tax sale.
__________________________________
ELLEN CEISLER, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: 2018 Tax Claim Judgment :
: No. 1399 C.D. 2019
Appeal of: Mearle Weyant :
ORDER
AND NOW, this 10th day of March, 2021, the September 25, 2019 order of
the Court of Common Pleas of Blair County is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge