In Re: Public Sale of Properties Pursuant to Section 605 of the Real Estate Tax Law (Tax Parcel 49-08-01009-00) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Public Sale of Properties :
Pursuant to Section 605 of the :
Real Estate Tax Law :
(Tax Parcel 49-08-01009-00) :
:
Barbara Ann Moore, Executrix :
under the Will of Alberta Hertzler, :
aka Alberta Coles Dennis Hertzler, :
aka Alberta B. Dennis, Deceased, :
Appellant :
:
v. : No. 744 C.D. 2019
:
Delaware County Tax Claim Bureau :
and Inez Williams : Submitted: February 10, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: May 17, 2023
Barbara Ann Moore (Moore) appeals the May 16, 2019 order of the Court of
Common Pleas of Delaware County (trial court) denying Moore’s Petition to Set
Aside the Upset Tax Sale of September 13, 2018 (Petition), which disposed of real
property located at 714 Lloyd Street, Chester, Delaware County, Pennsylvania
(Lloyd Street Property). Moore argues on appeal that the Delaware County (County)
Tax Claim Bureau (Bureau) failed to provide notice of the September 13, 2018 upset
tax sale to the Lloyd Street Property’s record owner and that Inez Williams
(Williams), the individual who purchased the Lloyd Street Property at tax sale, was
barred from bidding thereon as a delinquent taxpayer, pursuant to 619.1(a) of the
Real Estate Tax Sale Law (RETSL).1 After review, we affirm.
I. Background
The underlying facts of this matter are largely undisputed. Moore inherited
the Lloyd Street Property following the death of her mother, Alberta Dennis
(Decedent), on June 5, 2017. Original Record (O.R.), Item No. 22, trial ct. op. at 2.
Due to delinquent real estate taxes assessed on the Lloyd Street Property for 2016
and 2017, the Lloyd Street Property was exposed to an upset tax sale on September
13, 2018, at which Williams was the successful bidder. O.R., Item No. 22, trial ct.
op. at 2-3.
Moore filed the Petition on November 20, 2018, alleging that the Bureau
failed to “mail or otherwise attempt to contact” Decedent, who was still the record
owner of the Lloyd Street Property, or to investigate Decedent’s status or
whereabouts. O.R., Item No. 1, Petition, ¶¶ 10-12. Moore also alleged that Williams
was the record owner of real property located at 1502 Perkins Street, Chester,
Pennsylvania (Perkins Street Property), for which Williams was delinquent in the
payment of real estate taxes. Id., ¶ 14. As such, Moore requested that the trial court
set aside the September 13, 2018 sale of the Lloyd Street Property to Williams. Id.
at 4. Williams filed an answer in which she stated that all taxes for the Perkins Street
Property had been paid and that no delinquent real estate taxes were owed. O.R.,
Item No. 4, ¶ 14.
1
Act of July 7, 1947, P.L. 1368, as amended, added by the Act of December 21, 1998, P.L.
1008, 72 P.S. § 5860.619a(a). Section 619.1(a) provides that, within 20 days following a tax sale,
the successful bidder “shall . . . provide certification to the [B]ureau that the person is not
delinquent in paying real estate taxes to any of the taxing districts where the property is located[.]”
2
The trial court held an evidentiary hearing on April 15, 2019. Moore
presented the testimony of Jeanine Heinlein (Heinlein), the Bureau’s upset sales
coordinator. O.R., Item No. 12. Heinlein testified that the Bureau mailed notices of
the September 13, 2018 upset tax sale by certified mail to Sam Dennis and to “Albert
A Dennis” at the Lloyd Street Property.2 Notes of Testimony (N.T.), 4/15/19, at 11-
12. Moore signed the return receipts for both notices. Id. at 11. Heinlein
acknowledged that the Bureau did not mail an upset tax sale notice to “Alberta B.
Dennis.” Id. at 18. Removing the space between the name “Albert” and the letter
“A,” however, would reflect the correct spelling of Decedent’s first name. Id. at 20.
The County Sheriff posted notice of the upset tax sale on the Lloyd Street Property
on November 19, 2017. Id. at 21. Heinlein also testified that Moore contacted her
on July 30, 2018, to notify the Bureau that her parents were deceased and that she
intended to pay the delinquent taxes on the Lloyd Street Property before September
12, 2018, to avoid the upset tax sale. Id. at 18, 22-23. Regarding Williams, Heinlein
testified that she was not delinquent in paying taxes on the Perkins Street Property.
Id. at 13.
Moore testified that no one by the name of “Albert Dennis” was associated
with the Lloyd Street Property. Id. at 26. Moore advised that she does not remember
speaking with anyone at the Bureau about the delinquent taxes owed on the Lloyd
Street Property. Id. at 27.
Williams testified on her own behalf as the successful bidder of the Lloyd
Street Property. Williams agreed that she acquired the Perkins Street Property by
judicial sale in May 13, 2018, and that she paid the full amount of her bid price the
next day. Id. at 29-30. Williams understood that the Bureau would satisfy the
Sam Dennis, Decedent’s husband and Moore’s father, predeceased Decedent on April 25,
2
1968. O.R., Item No. 1, Petition, ¶ 7.
3
delinquent taxes owed on the Perkins Street Property from her May 14, 2018
payment. Id. at 30. She sold the Perkins Street Property approximately five months
later, in October 2018. Id.
The trial court denied the Petition by order dated May 16, 2019. O.R., Item
No. 13. The trial court rejected Moore’s argument that the sale of the Lloyd Street
Property should be invalidated because notice of the sale was addressed to “Albert
A Dennis.” O.R., Item No. 22, trial ct. op. at 7. The trial court noted that notices of
the scheduled upset tax sale were correctly mailed to the Lloyd Street Property, and
that Decedent’s first name was correctly spelled if one removed the space between
“Albert” and the subsequent letter “A” on one of the Bureau’s notices. Id. Notice
of the upset tax sale was posted on the Lloyd Street Property on November 19, 2017,
and Moore, the executrix of Decedent’s estate and equitable owner of the Lloyd
Street Property, signed the return receipts attached to the upset tax sale notices. Id.
Additionally, the trial court accepted Heinlein’s testimony that Moore contacted her
on July 30, 2018, and indicated that she would pay the delinquent real estate taxes
prior to September 12, 2018, to prevent the upset tax sale. Id. Therefore, the
“evidence overwhelmingly” demonstrated that Moore had notice of the outstanding
taxes on the Lloyd Street Property and the September 13, 2018 upset tax sale date.
Moreover, the trial court credited the testimony of Heinlein and Williams that
Williams did not owe any delinquent taxes on the Perkins Street Property. Id. at 8.
Accordingly, the trial court concluded that the upset tax sale of the Lloyd Street
Property was valid and Moore’s arguments to the contrary were “without merit.” Id.
at 6. This appeal followed.3
3
This Court’s review in tax sale cases is limited to a determination of whether the trial
court abused its discretion, rendered a decision that lacked supporting evidence, or clearly erred as
(Footnote continued on next page…)
4
II. Issues
On appeal, Moore argues that the Bureau failed to provide notice of the sale
as required by Section 602 of RETSL and that Williams was prohibited from bidding
on the Lloyd Street Property, as she was delinquent in paying taxes on the Perkins
Street Property.
III. Discussion
First, we address whether the Bureau complied with the notice provisions in
Section 602 of RETSL. Moore argues that the Bureau failed to provide notice of the
sale that was directed to Decedent, who was record owner of the Lloyd Street
Property. Moore suggests that the Bureau had a duty to inquire into the whereabouts
or status of Decedent, because an issue existed regarding the adequacy of notice
required under Section 602 of RETSL.
Pursuant to Section 602(a) of RETSL,4 the Bureau must provide notice of a
tax sale by publication at least 30 days prior to the sale in 2 newspapers of general
circulation in the county and once in the legal journal. Section 602(e) of RETSL, 72
P.S. § 5860.602(e), also requires that notice of the sale be given “to each owner” at
least 30 days prior to the sale, by United States certified mail, restricted delivery,
return receipt requested, postage prepaid, as well as by posting notice of the sale on
the property scheduled for sale at least 10 days prior to the sale. The Bureau bears
the burden of proving compliance with RETSL’s notice provisions. In re Tax Sale
of Real Prop. Situated in Jefferson Twp., 828 A.2d 475, 478 (Pa. Cmwlth. 2003).
The notice provisions in Section 602 of RETSL are to be strictly construed and
a matter of law. Montgomery Cnty. Tax Claim Bureau v. Mermelstein Fam. Tr., 836 A.2d 1010,
1012 (Pa. Cmwlth. 2003).
4
72 P.S. § 5860.602(a).
5
compliance with said provisions is essential to prevent the deprivation of property
without due process. Id. at 479. If any one of the three types of notice – publication,
posting, or mail – is defective, the tax sale is void. In re Consol. Reps. and Return
by Tax Claims Bureau of Northumberland Cnty. of Props., 132 A.3d 637, 645 (Pa.
Cmwlth. 2016).
The formal requirements of notice need not be strictly met, however, when
actual notice of the tax sale has been established. Matter of Tax Sales by Tax Claim
Bureau of Dauphin Cnty., 651 A.2d 1157, 1160 (Pa. Cmwlth. 1994). Whether a
taxpayer has actual notice of an upset tax sale is a question of fact that will not be
disturbed on appeal if supported by substantial evidence. In re Consol. Reps. and
Return, 132 A.3d at 647. Actual notice is that which has been given to a party
directly and personally, “or such that [s]he is presumed to have received [notice]
personally because the evidence within [her] knowledge was sufficient to put [her]
upon inquiry.” Id. (citing Black’s Law Dictionary 1061-62 (6th ed. 1990)).
Moore has not argued that the Bureau failed to provide notice by posting or
publication. Rather, Moore’s argument centers on the Bureau having mailed a notice
to “Albert A Dennis” and not to “Alberta Dennis.” Moore has not disputed that she
received, and signed the return receipts for the notice mailed to her deceased father,
Sam Dennis, or the notice sent to “Albert A Dennis.” Although Moore testified that
she did not recall having a conversation with Heinlein prior to the September 13,
2018 upset tax sale, she did not deny having actual notice that a sale would take
place on that date. Moreover, the trial court credited Heinlein’s testimony that
Moore contacted her on July 30, 2018, to advise Heinlein that she intended to pay
the delinquent real estate taxes owed on the Lloyd Street Property prior to the
scheduled tax sale. Given that the Bureau provided notice by posting, by
6
publication, and by mailing notices by certified mail, return receipt requested, which
Moore received and signed for, it is unclear why the Bureau would have reason to
believe adequate notice of the upset tax sale was not provided. Accordingly, we
reject Moore’s argument that the trial court erred in denying the Petition based on
lack of notice under Section 602 of RETSL.
Next, we address whether Williams was a delinquent property owner who was
barred from bidding on the Lloyd Street Property. Moore argues that the County’s
online tax records indicated that the Perkins Street Property “bore a significant tax
delinquency” as of November 5, 2018. Additionally, Moore contends that Williams
failed to respond to a request for admissions in January 2019 and either admit or
deny that she was a delinquent property owner at the time she bid on the Lloyd Street
Property. By failing to respond, Moore argues that Williams has admitted she is a
delinquent property owner and, as a result, she was prohibited from bidding on the
Lloyd Street Property.
Section 102 of RETSL,5 72 P.S. § 5860.102, relevantly defines the term
“delinquent property owner” as a person whose taxes on the subject property are
delinquent and in whose name the property is last registered. The trial court credited
the testimony of both Heinlein and Williams that Williams was not delinquent in
paying real estate taxes on the Perkins Street Property, and there is no evidence to
support Moore’s assertion in her appellate brief that a tax delinquency existed for
the Perkins Street Property on November 5, 2018. Moreover, Williams testified that
she sold the Perkins Street Property in October 2018. As the record does not support
Moore’s claim that Williams was a delinquent property owner at the time she bid on
5
The Act of June 19, 2018, P.L. 239.
7
the Lloyd Street Property, the trial court did not err in concluding that Williams was
not barred from bidding under Section 619.1(a) of RETSL.
For the above reasons, we affirm the trial court.
____________________________
ELLEN CEISLER, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Public Sale of Properties :
Pursuant to Section 605 of the :
Real Estate Tax Law :
(Tax Parcel 49-08-01009-00) :
:
Barbara Ann Moore, Executrix :
under the Will of Alberta Hertzler, :
aka Alberta Coles Dennis Hertzler, :
aka Alberta B. Dennis, Deceased, :
Appellant :
:
v. : No. 744 C.D. 2019
:
Delaware County Tax Claim Bureau :
and Inez Williams :
ORDER
AND NOW, this 17th day of May, 2023, the May 16, 2019, order of the Court
of Common Pleas of Delaware County is hereby AFFIRMED.
____________________________
ELLEN CEISLER, Judge