In the Matter of The Clinton County TCB Sale of September 27, 2021 ~ Appeal of: J.J. Thomas ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In the Matter of The Clinton County :
Tax Claim Bureau Sale of :
September 27, 2021 :
: No. 714 C.D. 2022
Appeal of: Joseph John Thomas : Submitted: April 14, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: August 25, 2023
Joseph John Thomas (Thomas) appeals, pro se, from the Clinton
County (County) Common Pleas Court’s (trial court) March 21, 2022 order denying
his Petition for Special Relief (Petition). Thomas presents three issues for this
Court’s review: (1) whether the County Tax Claim Bureau (Bureau) was required to
and/or did comply with the additional notice requirements of Section 607.1a of the
Real Estate Tax Sale Law (RETSL);1 (2) whether the trial court erred by not finding
a defect in personal service; and (3) whether Thomas should have been afforded the
opportunity to enter into an installment agreement to pay the outstanding taxes.
After review, this Court affirms.
Background
Thomas resides in the County at 410 Canal Street, Flemington,
Pennsylvania (Property). On August 25, 2021, County Deputy Sheriff Derek Hoke
1
Act of July 7, 1947, P.L. 1368, as amended, added by Section 30 of the Act of July 3,
1986, P.L. 351, 72 P.S. § 5860.607a.
(Deputy Hoke) personally served Thomas with a copy of the Notice of Public Sale
identifying and confirming that the Property would be exposed at public sale at 2
Piper Way, Suite 124, Lock Haven, Pennsylvania, at 10:00 a.m. on September 27,
2021. Deputy Hoke obtained Thomas’s signature during personal service. Deputy
Hoke also posted the Notice of Public Sale on the Property. In addition, the Bureau
mailed a Ten-Day Notice of Sale (Ten-Day Notice) to Thomas on September 8,
2021.2 See Original Record Notes of Testimony, Mar. 10, 2022 (N.T.) Bureau Ex.
1 at 6. The Ten-Day Notice reinforced the details contained in the Notice of Public
Sale, and specified: “The approximate upset price for which the [P]roperty shall be
sold is $1,249.51. The sum of $511.89 for the 2019 or prior delinquent taxes will
remove the [P]roperty from the sale, if paid before the date of sale.” Id. (all caps
omitted). The Property was sold to a successful bidder on September 27, 2021.
On February 16, 2022, Thomas filed the Petition in the trial court
setting forth his exceptions and seeking to set aside the upset tax sale. The trial court
held a hearing on March 10, 2022. On March 21, 2022, the trial court overruled
Thomas’s exceptions and denied the Petition. Thomas appealed to the Pennsylvania
Superior Court, which transferred the appeal to this Court.3
Discussion
Thomas first argues that the tax sale should be set aside because the
Bureau failed to meet the additional notice requirements of Section 607.1a of the
RETSL. Specifically, Thomas claims that Section 607.1a of the RETSL should have
been triggered because the Ten-Day Notice was returned to the Bureau unsigned.
2
The trial court notes in its opinion that the Ten-Day Notice was sent September 7, 2021.
See Trial Ct. Op. at 2. However, the Ten-Day Notice is dated September 8, 2021. See Original
Record Notes of Testimony, Mar. 10, 2022, Bureau Ex. 1 at 6.
3
“Our review in tax sale cases is limited to determining whether the trial court abused its
discretion, erred as a matter of law, or rendered a decision not supported by substantial evidence.”
In re Balaji Invs., LLC, 148 A.3d 507, 509 n.2 (Pa. Cmwlth. 2016).
2
The Bureau rejoins that the additional notice requirements of Section 607.1a of the
RETSL do not apply because the trial court found, based upon competent evidence,
that Thomas had received actual notice of the sale when he was personally served
on August 25, 2021.
Section 607.1a(a) of the RETSL states:
When any notification of a pending tax sale or a tax sale
subject to court confirmation is required to be mailed to
any owner, . . . and such mailed notification is either
returned without the required receipted personal
signature of the addressee or under other circumstances
raising a significant doubt as to the actual receipt of such
notification by the named addressee or is not returned or
acknowledged at all, then, before the tax sale can be
conducted or confirmed, the [B]ureau must exercise
reasonable efforts to discover the whereabouts of such
person or entity and notify him. The [B]ureau’s efforts
shall include, but not necessarily be restricted to, a search
of current telephone directories for the county tax
assessment offices, recorder of deeds office and
prothonotary’s office, as well as contacts made to any
apparent alternate address or telephone number which may
have been written on or in the file pertinent to such
property. When such reasonable efforts have been
exhausted, regardless of whether or not the notification
efforts have been successful, a notification shall be placed
in the property file describing the efforts made and the
results thereof, and the property may be rescheduled for
sale or the sale may be confirmed as provided in [the
RETSL].
72 P.S. § 5860.607a(a) (emphasis added).
This Court has held: “The [RETSL] requires a tax claim bureau to give
notice to the delinquent taxpayer before his property can be sold in satisfaction for
overdue taxes.” Clemmer v. Fayette Cnty. Tax Claim Bureau, 176 A.3d 417, 420
(Pa. Cmwlth. 2017). Additionally, “notice provisions are to be strictly construed,
and [] strict compliance with such provisions is necessary to guard against the
deprivation of property without due process and if any one [sic] is defective, the sale
3
is void.” Donofrio v. Northampton Cnty. Tax Claim Bureau, 811 A.2d 1120, 1122
(Pa. Cmwlth. 2002). However, this Court has held that a finding of actual notice can
waive strict compliance with the RETSL’s statutory notice provisions. See
Donofrio; Sabbeth v. Tax Claim Bureau of Fulton Cnty., 714 A.2d 514 (Pa. Cmwlth.
1998).
In Sabbeth, the tax claim bureau admitted that it did not strictly comply
with the statutory notice requirements, but argued on appeal that the appellee had
actual notice of the sale because one of the appellee’s employees signed for the
notice and placed it on the appellee’s desk where the appellee was accustomed to
receiving mail. The appellee did not read the notice until the day before the tax sale,
53 days after her employee placed it on her desk. The tax claim bureau argued that
the appellee had actual notice because actual notice requires proof that the notice
was actually received, not proof that it was actually read. This Court agreed with
the tax claim bureau, finding that as a result of the appellee having actual notice of
the tax sale, strict compliance with the statutory provisions was waived. Moreover,
in Donofrio, when the appellant admitted to receiving notice of a pending tax sale,
and acknowledged receipt of the notice of unpaid taxes, this Court affirmed the trial
court’s reasoning that the appellant had actual notice of the tax sale. The Donofrio
Court ruled in the tax claim bureau’s favor, despite acknowledging that the RETSL’s
formal notice requirements were not met.
Here, Thomas asserts that the Bureau did not make reasonable efforts
to provide him with notice of the tax sale pursuant to Section 607.1a of the RETSL
because he did not receive the Bureau’s Ten-Day Notice and it was returned to the
Bureau unsigned. However, the trial court concluded that “the [Bureau] had
absolutely no reason to doubt that [Thomas] had received notice of the pending upset
tax sale.” Trial Ct. Op. at 3. Therefore, the issue before this Court is whether there
was substantial evidence in the record to support the trial court’s conclusion that
Thomas had actual notice of the tax sale.
4
The Sabbeth Court defined actual notice as
notice expressly and actually given, and brought home to
the party directly. The term “actual notice,” however, is
generally given a wider meaning as embracing two
classes, express and implied; the former includes all
knowledge of a degree above that which depends upon
collateral inference, or which imposes upon the party the
further duty of inquiry; the latter imputes knowledge to the
party because he is shown to be conscious of having the
means of knowledge. In this sense[,] actual notice is such
notice as is positively proved to have been given to a
party directly and personally, or such as he is presumed
to have received personally because the evidence within
his knowledge was sufficient to put him upon inquiry.
Id. at 517 (quoting Black’s Law Dictionary 1061-62 (6th ed. 1990) (emphasis
added)).
Here, the trial court made the following factual findings: (1) Deputy
Hoke served Thomas; (2) Deputy Hoke presented Thomas with the Notice of Public
Sale; and (3) Thomas signed the Notice of Public Sale and admitted to the trial court
that he signed it. Thomas’s signature and admission were substantial evidence to
support the trial court’s conclusion that Thomas received the Notice of Public Sale
directly and personally. See Sabbeth. Accordingly, Thomas had actual notice of the
tax sale.
Notwithstanding, Thomas claims that the trial court erred by not finding
a defect in the personal service. Specifically, Thomas contends that he “was handed
a paper to sign and once he signed [it], [Deputy Hoke] walked away with whatever
paper was signed, not leaving him with anything.” Thomas Br. at 11. The Bureau
rejoins that Thomas is essentially asking this Court to reweigh the trial court’s
credibility determinations.
5
Because Thomas owned and occupied the Property at the time Deputy
Hoke served him, Section 601(a)(3) of the RETSL4 applies. Section 601(a)(3) of
the RETSL provides:
No owner-occupied property may be sold unless the
[B]ureau has given the owner occupant written notice of
such sale at least ten (10) days prior to the date of actual
sale by personal service by the sheriff or his deputy or
person deputized by the sheriff for this purpose unless the
county commissioners, by resolution, appoint a person or
persons to make all personal services required by this
clause. The sheriff or his deputy shall make a return of
service to the [B]ureau, or the persons appointed by the
county commissioners in lieu of the sheriff or his deputy
shall file with the [B]ureau written proof of service,
setting forth the name of the person served, the date
and time and place of service, and attach a copy of the
notice which was served. If such personal notice cannot
be served within twenty-five (25) days of the request by
the [B]ureau to make such personal service, the [B]ureau
may petition the court of common pleas to waive the
requirement of personal notice for good cause shown.
Personal service of notice on one of the owners shall be
deemed personal service on all owners.
72 P.S. § 5860.601(a)(3) (emphasis added). Moreover, this Court has held: “The
trial court, as the finder of fact, has exclusive authority to weigh the evidence, make
credibility determinations, and draw reasonable inferences from the evidence
presented.” Rice v. Compro Distrib., Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006).
In the instant matter, the trial court found that, on August 25, 2021,
Deputy Hoke “personally served [Thomas] with a copy of the Notice of Public Sale
identifying and confirming that the [P]roperty would be exposed at public sale at 2
Piper Way, Suite 124, Lock Haven, Pennsylvania, at 10:00 a.m. on September 27,
2021.” Trial Ct. Op. at 3. Deputy Hoke served Thomas well over 10 days before
the Property’s sale. Deputy Hoke returned the Notice of Public Sale to the Bureau
4
72 P.S. § 5860.601(a)(3).
6
after Thomas signed it. Thomas admitted to signing it. Based on these factual
findings which are supported by the record regarding personal service, and given
that the trial court has exclusive authority to weigh the evidence and draw reasonable
inferences therefrom, the Bureau satisfied Section 601(a)(3) of the RETSL’s notice
requirements.
Lastly, Thomas argues that he should have been afforded the
opportunity to enter into an installment agreement to pay the taxes in May 2021.
Specifically, Thomas contends that the Bureau violated his due process rights by
failing to inform him of that option pursuant to Section 603 of the RETSL5 after he
paid $500.00 towards his 2019 taxes on May 30, 2021. The Bureau retorts that
Thomas waived this argument by not raising it before the trial court. Further, the
Bureau asserts that even if Thomas did not waive this argument, it is not supported
by the record evidence.
Section 603 of the RETSL provides, in relevant part:
Any owner or lien creditor of the owner may, at the
option of the [B]ureau, prior to the actual sale, (1) cause
the property to be removed from the sale by payment in
full of taxes which have become absolute and of all
charges and interest due on these taxes to the time of
payment, or (2) enter into an agreement, in writing,
with the [B]ureau to stay the sale of the property upon
the payment of twenty-five per centum (25%) of the
amount due on all tax claims and tax judgments filed
or entered against such property and the interest and
costs on the taxes returned to date, as provided by [the
RETSL], and agreeing therein to pay the balance of said
claims and judgments and the interest and costs thereon in
not more than three (3) instalments all within one (1) year
of the date of said agreement, the agreement to specify the
dates on or before which each instalment shall be paid, and
the amount of each instalment.
5
72 P.S. § 5860.603.
7
72 P.S. § 5860.603 (emphasis added).
In interpreting Section 603 of the RETSL,
[t]his Court has repeatedly held that where an owner has
paid at least [25%] of the taxes due, the tax authority is
required to inform the owner of the option to enter into an
installment agreement and that a failure to do so is a
violation of the owner’s due process rights.
In re Sale by Tax Claim Bureau of Bedford Cnty. of Tax Parcel G.14-0.00-007, 112
A.3d 685, 688 (Pa. Cmwlth. 2015).
Pennsylvania Rule of Appellate Procedure 302(a) provides: “Issues not
raised in the trial court are waived and cannot be raised for the first time on appeal.”
Pa.R.A.P. 302(a). In Thayer v. Tax Claim Bureau of Bucks County, 701 A.2d 808(Pa. Cmwlth. 1997), this Court held that a party could not raise the issue of a tax
installment agreement pursuant to Section 603 of the RETSL because, at trial, the
party did not specify that certain agreements existed and did not introduce the
agreements into the record as evidence. Additionally, “[w]hen issues are not
properly raised and developed in briefs, [and] when the briefs are wholly inadequate
to present specific issues for review, a court will not consider the merits thereof.”
Commonwealth v. Feineigle, 690 A.2d 748, 751 n.5 (Pa. Cmwlth. 1997) (quoting
Wicker v. Civ. Serv. Comm’n, 460 A.2d 407, 408 (Pa. Cmwlth. 1983)).
Thomas argued to the trial court that he made a $500.00 payment to the
Bureau in 2021 that he believed covered his taxes and entered him into an
arrangement with the Bureau to pay the rest. Thomas testified that after he made the
$500.00 payment on May 30, 2021, he was “under the impression that [he] had an
arrangement with [the Bureau] [and] that [he] was good because taxes run from May
to May[.]” N.T. at 13-14.
Additionally, in a written objection presented to the trial court and
submitted into evidence during the March 10, 2022 hearing, Thomas wrote:
8
The first objection I would make is that I was, back in May
[2021], I paid $500.00 and I thought I had an arrangement
to pay the rest. Period. I don’t know where that went
wrong. I have a paper with scheduled payments, that go
way past September. In July[,] I was still getting a regular
bill. The [B]ureau gave me a copy of my file and there is
no mention of the agreement, no notes at all.
N.T. Thomas Ex. 1 at 1.
Thomas’s argument on appeal that the Bureau should have informed
him of his ability to enter into an installment agreement is a different argument than
his argument to the trial court that the sale should be set aside because he believed
he had an arrangement with the Bureau. He did not raise the issue of the Bureau
violating Section 603 of the RETSL to the trial court.6 This Court is constrained to
review only those issues that were raised before the trial court. See Thayer; see also
In re Est. of Marra v. Tax Claim Bureau of Lackawanna Cnty., 95 A.3d 951 (Pa.
Cmwlth. 2014). Accordingly, this issue is waived.
Even if this issue was not waived, there is insufficient evidence in the
record to support Thomas’s argument. Similar to Thayer, Thomas did not introduce
any evidence of the existence or purpose of his supposed May 30, 2021 payment to
the Bureau to the trial court. Additionally, Thomas did not offer any proof of a
specific installment agreement with the Bureau. Nor is there a receipt of his alleged
May 30, 2021 payment in the record. Although Thomas mentioned that he was
under the impression of having an arrangement with the Bureau, he did not produce
the “paper with scheduled payments” that he referenced in his written objection.
N.T. Thomas Ex. 1 at 1. Accordingly, Thomas’ argument is not supported by the
record evidence.
6
See N.T. Thomas Ex. 1 at 1-3.
9
Conclusion
For all of the above reasons, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In the Matter of The Clinton County :
Tax Claim Bureau Sale of :
September 27, 2021 :
: No. 714 C.D. 2022
Appeal of: Joseph John Thomas :
ORDER
AND NOW, this 25th day of August, 2023, the Clinton County
Common Pleas Court’s March 21, 2022 order is affirmed.
_________________________________
ANNE E. COVEY, Judge