K. Hochendoner v. Fayette County TCB v. T. Phillips ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kristopher Hochendoner :
:
v. :
:
Fayette County Tax Claim Bureau : No. 398 C.D. 2021
:
v. : Submitted: March 11, 2022
:
Thomas Phillips, :
Appellant :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: May 18, 2023
Thomas Phillips (Appellant) appeals from the March 15, 2021 order of the
Court of Common Pleas of Fayette County (trial court) granting Kristopher
Hochendoner’s (Owner)1 Exceptions to Tax Sale (Exceptions) and setting aside the
upset tax sale of property located at 104 Trader Avenue, Connellsville, Pennsylvania
(Property). Upon review, we affirm.
I. Factual and Procedural History
The Property was exposed to an upset tax sale due to Owner’s failure to
pay local property taxes for tax year 2019. Appellant purchased the Property at a tax
1
Owner, having failed to file a brief pursuant to this Court’s December 14, 2021 order, has
been precluded from participating in this appeal.
upset sale on October 19, 2020, for $2,850.13. (Reproduced Record (R.R.) at 28a.) On
December 18, 2021, Owner filed timely Exceptions to Tax Sale, asserting that he never
received prior notice of the tax sale. Owner asserted that the Property and structure
thereon was used by Owner as a rental property. Id. at 7a. Owner asserted that he did
not receive actual notice of the tax sale. Id. at 8a. He further asserted that the address
that Fayette County (County) had listed for him was incorrect and, therefore, he was
never served with anything to make him aware of the tax sale. Id. at 10a. Appellant
intervened. The trial court held a hearing on Owner’s Exceptions on March 12, 2021,
at which Appellant appeared though his counsel.
Owner was present in the courtroom, but he did not testify on his own
behalf and was not called “as on cross” by Appellant. According to the witness for the
Fayette County Tax Claim Bureau (Tax Claim Bureau), on February 22, 2019, a Return
and Claim Notice was sent to Owner via certified mail to “11638 State Route 981,”
Ruffs Dale, Pennsylvania, informing Owner that a claim was entered for nonpayment
of 2019 taxes and that if he failed to pay the taxes the Property would be sold. On June
8, 2019, the Notice was returned undelivered, with the notation “ATT,” which means
“attempted.” Id. at 29a, 83a. Additional attempts to notify Owner of delinquent taxes
were made in March and April of 2019. These mailings were all sent to “11638 State
Route 981.” Id. at 41a. Each mailing was returned to the sender as “attempted.”
In June 2020, a Notice of Sale was sent via certified mail, restricted
delivery, to Owner at “11638 State Route 981,” Ruffs Dale, Pennsylvania. Id. at 40a-
41a, 82a. That Notice was returned to the Tax Claim Bureau undelivered, with the
following note from the post office: “Return to Sender. Attempted. Not known.
Unable to forward.” Id. at 29a, 40a-41a, 82a.
2
The Tax Claim Bureau posted a notice of sale on the Property on July 1,
2020. Id. at 30a, 84a. A 10-day letter notifying Owner that the Property was on the
Tax Sale List was sent via first class mail to Owner at “11638 State Route 981,” Ruffs
Dale, Pennsylvania, on September 24, 2020. Id. at 43a-45a, 87a. On cross-
examination, the Tax Claim Bureau’s witness testified that the Tax Claim Bureau had
sent a notice in 2017 to Owner at “1638 Route 981 Ruffs Dale”, and that the 2017
notice was received by Owner. Id. at 51a. She admitted that the tax notices, notice of
sale, return of claim, and 10-day letter were all sent “to a slightly different address than
the one . . . on file that was actually signed for.” Id. at 52a. Once the notices were all
returned as undelivered, the Tax Claim Bureau did nothing other than conduct a True
People Search to try to obtain a corrected address. Id. at 53a. It did not search any
county indices, the prothonotary’s office, the recorder of deeds, or the clerk of courts
to check for Owner’s address. Id. at 53a-54a. The Property was sold at the 2020
Fayette County upset tax sale, which took place on October 19, 2020. The highest
bidder on the Property was Appellant.
After the hearing, the trial court entered an order on March 15, 2021,
granting Owner’s Exceptions, directing that Appellant be refunded all filing fees, and
ordering that the deed recorded on December 18, 2020, to Appellant be set aside. The
trial court concluded that the Tax Claim Bureau failed to satisfy the requirements of
Section 607.1 of the Real Estate Tax Sale Law (Tax Sale Law),2 which requires the
Tax Claim Bureau to exercise reasonable efforts to discover the whereabouts of the
owner if a notification is returned undelivered.
2
Act of July 7, 1947, P.L. 1368, as amended, added by the Act of July 3, 1986, P.L. 351, 72
P.S. § 5860.607.a.
3
Appellant now appeals3 and raises one issue:
Did the trial court err by invalidating a tax sale before
testimony could be obtained from the Appellee/Record
Owner of the property sold to determine if the Record Owner
had actual notice of the sale of his property at the October 19,
2021, Fayette County, Upset Tax Sale.
(Appellant’s Br. at 7.)
II. Discussion
In this case, there is no dispute that the Tax Claim Bureau did not provide
statutory notice to Owner of either the 2019 tax delinquency or the tax sale. Because
he has not pursued the argument on appeal, Appellant appears to concede this error.
Appellant argues, however, that the trial court should not have voided the tax sale
without first determining if Owner had actual knowledge of the impending sale.
Appellant contends that even assuming the Tax Claim Bureau did not fulfill its notice
obligations under the Tax Sale Law, the sale may still be upheld if Owner had actual
notice. Appellant contends that here,
the [trial court], in deciding the matter based upon 72 P.S. §
5860.607a and only after hearing testimony from a single
employee of the [Tax Claim Bureau], did not permit the
attorneys for the Tax Claim Bureau or [Appellant] to
obtain testimony from [Owner] to determine if he had
actual notice of the sale of the [P]roperty. See RR [s]upra.
(Appellant’s Br. at 19a) (emphasis added). He further asserts that he “did not get a
chance to engage in examination of [Owner] to determine if there was actual notice of
the sale.” Id. (emphasis added). Appellant asks this Court to reverse and remand the
3
Our review in a tax sale case is limited to determining whether the trial court abused its
discretion, committed an error of law, or rendered a decision unsupported by the evidence.
Montgomery County Tax Claim Bureau v. Queenan, 108 A.3d 947 (Pa. Cmwlth. 2015).
4
matter to the trial court to take additional testimony from Owner to determine if he had
actual notice of the sale.
It is well established that the notice provisions of the Tax Sale Law are to
be strictly construed. Donofrio v. Northampton County Tax Claim Bureau, 811 A.2d
1120, 1122 (Pa. Cmwlth. 2002). The Tax Sale Law compels strict compliance in order
to ensure that a governmental entity seeking to recover delinquent taxes provides due
process before divesting an individual of his property. In Re Tax Sale of Real Property
Situate in Paint Township, Somerset County, 865 A.2d 1009, 1015 (Pa. Cmwlth. 2005).
When , however, a “property owner has actual notice of a tax upset sale, the notification
requirements in the statute need not be followed.” In re: York County Tax Claim
Bureau (Appeal of Luciani), 3 A.3d 765, 767 (Pa. Cmwlth. 2010) (citing Donofrio, 811
A.2d at 1122).
There exists a prima facie presumption of the regularity that attaches to a
tax sale. Thomas v. Montgomery County Tax Claim Bureau, 553 A.2d 1044 (Pa.
Cmwlth. 1989). A property owner can overcome the presumption “[b]y filing
exceptions to a tax sale, averring that the statutory notice provisions were not complied
with, [and thus creating] a contrary appearance.” Ali v. Montgomery County Tax Claim
Bureau, 557 A.2d 35, 37 (Pa. Cmwlth. 1989). Then, the tax claim bureau or a purchaser
arguing that the tax sale was proper has the burden of proving that the tax claim bureau
complied with the notice provisions. Upset Price Tax Sale of September 10, 1990
(Sortino) v. Delaware County Tax Claim Bureau, 606 A.2d 1255 (Pa. Cmwlth. 1992).
At the outset, we note that Appellant has not identified where in the record
the trial court “did not permit” him to call Owner as a witness. We have scoured the
record and there is nothing that supports Appellant’s assertion that the trial court in any
way inhibited Appellant’s ability to call Owner to the stand or present evidence of
5
Owner’s constructive notice of the tax sale. Appellant never attempted or asked the
trial court to do so.4
In Dwyer v. Luzerne County Tax Claim Bureau, 110 A.3d 223 (Pa.
Cmwlth. 2015), a tax sale purchaser took issue with the property owner’s absence from
the hearing and failure to testify about what notice he had received. We rejected the
argument, noting that the purchaser “did not object to [the property owner’s] absence
from the hearing, and nothing prohibited [the p]urchaser from subpoenaing [the
property owner] to testify.” Id. at 227.
Here, Owner filed Exceptions seeking to set aside the tax sale on the
grounds that he “did not receive actual notice” of the impending tax sale and that he
“was never served anything to make [him] aware of the tax sale.” (R.R. at 8a, 10a.)
Appellant intervened in the matter on January 8, 2021. Id. at 1a. Appellant had three
months prior to the March 12, 2021 hearing to conduct discovery and prepare his case
and “actual notice” defense. There is no indication in the record that Appellant deposed
Owner or subpoenaed Owner to testify. At the hearing, Appellant failed to offer any
argument or evidence to support his “actual notice” defense. He did not call Owner as
on cross-examination on the theory that Owner had an interest adverse to Appellant.
As in Dwyer, he did not lodge any objection to Owner’s failure to testify about what,
if any, notice he had received. Nor did he ask the trial court for permission to do so,
although he could have, as Owner was present and available in the courtroom. Instead,
4
From what this Court has gleaned from the transcript, Appellant’s only reference to Owner’s
actual knowledge of the impending sale was made by his counsel during closing arguments, when he
stated that “[t]he gentleman that owns the [P]roperty does need to take the stand to see if he had
constructive notice.” (R.R. at 74a.) Again, Appellant does not specifically reference this exchange
in his brief. However, to the extent Appellant relies on it to support his position that he asked the
[trial c]ourt to allow him to call Owner, we do not view counsel’s remark with the same measure of
potency.
6
after questioning the Tax Claim Bureau’s witness, Appellant’s counsel stated that he
would not be calling any witnesses to defend the tax sale. Id. at 70a.
Based on the only evidence presented, the trial court determined the Tax
Claim Bureau did not comply with the statutory notice requirements, and that Owner
did not have actual knowledge of the impending tax sale. We discern no error. The
Tax Claim Bureau and Appellant had the burden of showing compliance or actual
knowledge. Sortino. They failed to meet that burden. We therefore conclude that the
trial court did not err by declaring the tax sale null and void. See In re 1999 Upset Sale
of Real Estate, 811 A.2d 85, 90 (Pa. Cmwlth. 2002) (holding that although evidence of
actual notice might mitigate the tax claim bureau’s failure to comply with the statutory
notice requirements, buyers presented no evidence to support such a conclusion);
Ferrell v. Westmoreland County Tax Claim Bureau (Pa. Cmwlth., No. 1292 C.D. 2013,
filed May 20, 2014) (upholding the setting aside of a tax sale where buyer failed to
present any evidence at the hearing of owner’s actual notice of the tax sale).5
The order of the trial court is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
5
Under Section 414(a) of this Court’s Internal Operating Procedures, an unreported opinion
may be cited for its persuasive value. 210 Pa. Code § 69.414(a).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kristopher Hochendoner :
:
v. :
:
Fayette County Tax Claim Bureau : No. 398 C.D. 2021
:
v. :
:
Thomas Phillips, :
Appellant :
ORDER
AND NOW, this 18th day of May, 2023, the March 15, 2021 order of
the Court of Common Pleas of Fayette County is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge