In Re: Upset Tax Sale of Parcel No. 56-2920-012405 of September 11, 2013 ~ Appeal of: J.B. Vonstein ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Upset Tax Sale of :
Parcel No. 56-2920-012405 of :
September 11, 2013 : No. 169 C.D. 2014
: Argued: December 8, 2014
Appeal of: Jeremy B. Vonstein :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: March 4, 2015
Jeremy B. Vonstein (Vonstein) appeals from the January 7, 2014
Order of the Court of Common Pleas of Lycoming County (trial court), denying
Vonstein’s Petition to Set Aside Upset Tax Sale of September 11, 2013.
Vonstein is the record owner of property located at 485 Mountain
Road, Montoursville, Lycoming County, Tax Parcel No. 56-2920-012405
(Property). Vonstein became delinquent in the payment of real estate taxes levied
against the Property and the Property was purchased by a qualified buyer at a tax
upset sale. On November 1, 2013, Vonstein filed a Petition to Set Aside Sale, due
to the failure of the County Tax Claim Bureau (Bureau) to provide notice of the
sale as required by Section 602 of the Real Estate Tax Sale Law (Tax Sale Law).1
(Certified Record (R.) Item No. 25.) Section 602(a) of the Tax Sale Law requires
that before an upset tax sale, the public must be given notice of the sale. 72 P.S. §
1
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101-5860.803.
5860.602(a). In addition, each owner of the property being listed for upset tax sale
must be given notice by certified mail. Section 602(e) states:
(e) In addition to such publications, similar notice of sale
shall also be given by the bureau as follows:
(1) At least thirty (30) days before the date of the
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.
(3) Each property scheduled for sale shall be
posted at least ten (10) days prior to the sale.
72 P.S. § 5860.602(e).
A hearing was held on December 19, 2013 before the trial court, at
which Vonstein and the Director of the Bureau (Bureau Director) testified. The
Bureau Director testified that the 30 day notice of tax sale required by Section
602(e)(1) of the Tax Sale Law was sent on or about June 4, 2013 to Vonstein via
certified mail, return receipt requested, restricted delivery. It was addressed to
him at 872 Rural Avenue, 2nd Floor, Williamsport, which was the address on file
with the assessment office, but was a previous address of Vonstein. The letter was
2
returned to sender, marked by the post office as “attempted, not known, unable to
forward.” (Transcript of Proceedings, December 19, 2013 (H.T.) at 3.)
A second notice, which the Bureau Director referred to as the
“original 10 day notice,” was sent on August 13, 2013 to the same, Williamsport,
address. The Bureau Director testified that this notice was also returned to the
Bureau, whereupon he directed staff to search for a better address. (H.T. at 3, 14.)
The same notice letter dated August 13, 2013 was readdressed and
mailed via regular, first class mail, on August 23, 2013, to Vonstein at 2 South
Charles Street, Dallastown, where Vonstein currently resides. (H.T. at 11.) The
letter mailed on August 23, 2013 was delivered, but Vonstein testified that he
could not state that it was received within 10 days of the upset tax sale on
September 11, 2013 because he had been away from home for a period of time,
and the mail was unopened. (H.T. at 11.) The Bureau Director testified that
between June 4, 2013 when the first notice was sent and August 13, 2013 when the
second notice was sent, Bureau procedure mandated that staff examine the County
assessment records to determine whether there had been any ownership change or
address change; given no evidence of change, the second notice would have been
sent to the same address. He stated that after the notice sent August 13, 2013 was
returned and as it grew closer to the upset sale date, Bureau procedure was to look
again, and he testified that he searched for and found the current, Dallastown
address in a criminal costs and fines division database that he also administers.
(H.T. at 19-21.) Vonstein testified that he was in the process of selling the
property and he knew he owed back taxes to the County, but intended to pay them
in conjunction with the sale. He also testified that he receives mail at the Property,
which is vacant except for a recreational vehicle he keeps there and, during the
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period on and after August 24, 2013, he was away from the Dallastown address
because he was at the Property, preparing it for sale. (H.T. at 23-24.)
In its January 7, 2014 opinion, the trial court found that the Bureau
complied with the notice provisions of the Tax Sale Law, and that Vonstein had
offered no basis upon which to set aside the sale. (Trial Court Opinion at 4.)
On appeal to this Court,2 Vonstein argues that the Bureau incorrectly
utilized Vonstein’s previous address even though it had actual notice that Vonstein
was residing at a Dallastown address. He avers that the only notice mailed to his
proper address was the final 10 day notice, and that he did not receive this notice
until after the tax sale. Therefore, Vonstein argues, strict compliance with the 30
day notice provision did not occur, and compliance with all of the notice
provisions is required.3
Vonstein cites our decision in Rinier v. Tax Claim Bureau of
Delaware County, 606 A.2d 635 (Pa. Cmwlth. 1992), for the proposition that
reasonable efforts must be made to locate a landowner whose property has been
exposed for tax sale. However, Rinier is readily distinguishable; in addition to
finding that the subject property had been improperly posted, our Court found there
that the tax bureau received acknowledgement from only one of the owners of a
property held as a tenancy by the entirety (owners had divorced and one spouse
was living in Florida), and thereafter made no reasonable effort to locate and notify
the absent spouse prior to the tax sale. Id. at 641. Our Court accordingly
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. Rice v. Compro Distributing, Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006).
3
Vonstein does not challenge the propriety of the publishing and posting of tax sale notices
required by the Tax Sale Law.
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concluded that the tax bureau had not complied with the mail notice requirement.
Here, although the Bureau sent two notices to the incorrect address, it searched for,
and discovered the correct address, and mailed the notice to the only owner’s
correct address more than ten days prior to the sale date.
In Tracy v. County of Chester Tax Claim Bureau, 49 A.2d 1334 (Pa.
1985), our Supreme Court set forth the “reasonable effort” requirement as follows:
[W]here a taxing authority intends to conduct a sale of
real property because of nonpayment of taxes, it must
notify the record owner of property by personal service
or certified mail, and where the mailed notice has not
been delivered because of an inaccurate address, the
authority must be a reasonable effort to ascertain the
identity and whereabouts of the owner(s).
Id. at 1338-39 (footnote omitted) (emphasis in original). As noted by the trial
court, Vonstein’s argument that he had been away from home for a period of time,
had not opened the mail and therefore had no actual notice of the tax sale, must
fail. In re Upset Tax Sale Held 11/10/97, 784 A.2d 834 (Pa. Cmwlth. 2001)
(where the county tax claim bureau complied with the notice provisions prescribed,
the fact that notice was not actually received by a husband whose spouse signed
her husband’s name on the return receipt did not defeat the sale.) Section 602(h)
of the Real Estate Tax Sale Law provides that “no sale 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 statute.” 72 P.S. §
5860.602(h).
The notice requirements require that where a return receipt signed by
the property owner is not returned to the Bureau by the Post Office, the Bureau
must mail to the property owner a sale notice by first class mail at least ten days
5
before the date of the sale. The ten day notice was addressed to Vonstein’s correct
address and was delivered. The Bureau successfully completed service by mail on
Vonstein as required. Accordingly, we affirm.
_________________ ____________________
JAMES GARDNER COLINS, Senior Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Upset Tax Sale of :
Parcel No. 56-2920-012405 of :
September 11, 2013 : No. 169 C.D. 2014
:
Appeal of: Jeremy B. Vonstein :
ORDER
AND NOW, this 4th day of March, 2015, the Order of the Court of
Common Pleas of Lycoming County dated January 7, 2014, denying the Petition
Set Aside Upset Tax Sale and confirming the tax sale of Parcel No. 56-2920-
012405, is AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge