Bosch v. Tax Claim Bureau of Monroe County ~ Appeal of: J. Keller ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph Bosch and :
Rosemarie Bosch :
: No. 192 C.D. 2022
v. :
: Submitted: February 10, 2023
Tax Claim Bureau of Monroe :
County and Jason Keller :
:
Appeal of: Jason Keller :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: November 16, 2023
Jason Keller (Keller), the purchaser of property at a tax sale, appeals pro
se from the January 27, 2022 order of the Court of Common Pleas of Monroe County
(trial court), which granted the Petition to Set Aside Tax Claim Sale (Petition) filed by
Joseph Bosch and Rosemarie Bosch. Upon review, we affirm.
Facts and Procedural History
Mr. and Mrs. Bosch reside at 1 Middletown Street, Riverside, New Jersey
08075. The Boschs are the owners of a property located at 117 Shady Pine Lane,
Pocono Lake, Pennsylvania 18347 (Property). On June 29, 2021, a Notice of Public
Tax Sale was sent to “Bosch Joseph” at 321 Middletown Street, Riverside, NJ 08075
by United States (U.S.) certified mail stating that the Property was subject to upset sale
for unpaid 2019 taxes. The return receipt was signed by Mr. Bosch. A Notice of Public
Tax Sale was sent on June 29, 2021, to “Bosch Rosemarie” at 321 Middletown Street,
Riverside, NJ 08075. The return receipt was also signed by Mr. Bosch. Mrs. Bosch
did not sign the return receipt, and Mr. Bosch signed the return receipt without
consulting Mrs. Bosch. Mr. Bosch signed his own name, not his wife’s name. On July
10, 2021, a Notice of Tax Sale was posted on the Property. A Notice of 2021 Public
Delinquent Tax Sale was also published in the Pocono Record and the Monroe Legal
Reporter on August 13, 2021.
In August 2021, Mr. Bosch spoke with a representative from the Monroe
County Tax Claim Bureau (Bureau) to determine the total amount of taxes due. The
representative told Mr. Bosch that the total amount of taxes due was $4,975.75. Mr.
Bosch was told by the representative from the Bureau that $2,747.00 was due by
September 15, 2021, to prevent the Property from being sold. Mr. Bosch was instructed
to pay $743.10 by September 15, 2021, and monthly installments of $248.00 until the
entire amount was paid in full. After Mr. Bosch’s conversation with the representative
from the Bureau, Mr. Bosch told Mrs. Bosch that taxes were delinquent and that he
was working on paying the delinquent taxes. On September 14, 2021, Mr. Bosch sent
a payment of $745.001 to the Bureau, via overnight priority mail. The Bureau received
the check on September 15, 2021, at 11:45 a.m., one hour after the Property had been
sold by upset sale to Keller. (Trial Court, Findings of Fact (FOF) 1-12.)
On October 13, 2021, Mr. and Mrs. Bosch filed the Petition based on lack
of notice under Section 602(e)(1) of the Real Estate Tax Sale Law (RETSL).2 Mr. and
Mrs. Bosch filed verifications stating that the following facts were true and correct:
1
Evidently, Mr. Bosch rounded the $743.10 amount to $745.00.
2
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5680.602(e)(1). Section 602(e)(1) of
the RETSL provides that the Bureau, “at least thirty (30) days before the date of the tax sale, shall
(Footnote continued on next page…)
2
7. In early to mid-August, 2021, Petitioner Joseph Bosch
spoke with a representative from the [Bureau] to determine
the total amount of taxes due. The representative told Mr.
Bosch that the total amount of taxes due was $4,975.50.
8. Petitioners were told by representatives from the Bureau
that $2,747.00 was due by September 15, 2021 to prevent the
Property from being sold.
9. The Petitioners were further told to pay $743.10 with
equal payments of $248.00 until the entire amount of
$2,747.00 was paid in full.
10. Due to a financial hardship, Mr. and Mrs. Bosch sent
payment of $745.00 to the Bureau on September 14, 2021,
via overnight mail.
11. The [Bureau] received the check on September 15, 2021,
at 11:45 AM.
12. Unbeknownst to Mr. and Mrs. Bosch, who believed the
payment of $745.00 would arrive before 10:00 AM on
September 15, 2022, and would stop the sale, the payment
was untimely by an hour and the Property was sold.
****
give notice by certified mail, personal addressee only, return receipt requested, to each owner of the
land to be sold.” 72 P.S. § 5680.602(e)(1). Section 602(e)(2) of the RETSL provides in part:
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 certified mail,
personal addressee only, return receipt requested, postage prepaid, at
his last known post office address . . . .
72 P.S. § 5680.602(e)(2) (emphasis added).
3
20. Here, it is clear that Mrs. Bosch did not receive the
required mail by the [Bureau] and did not personally
know the Property was going to be sold at exactly 10:00
AM on September 21, 2021.
(Reproduced Record (R.R.) at 4a, 7a) (emphasis added).
A hearing was held before the trial court on January 5, 2022. Both Mr.
and Mrs. Bosch testified. Mr. Bosch testified that he signed his name on the return
receipt for the notice of tax sale addressed to Mrs. Bosch. He testified:
Q. I’m actually showing you two, one of which was
addressed to Bosch, Rosemarie, and the second one
addressed to Bosch, Joseph, same day. Mr. Bosch, are those
your signatures on both documents?
A. Yes.
Id. at 73a-74a.
Mr. Bosch testified that he, alone, had the conversation with the Bureau
about the date and time of the sale and they made a verbal agreement regarding the
amount he needed to pay. Id. at 89a. With respect to what exactly his wife knew, Mr.
Bosch testified that she knew from their conversations that the taxes were delinquent
and that they had to send a certain amount of money in by a certain date. Id. at 85a.
He was not certain whether she actually knew that the Property was subject to tax sale
on September 15, 2021. Id. at 85a-86a. Mr. Bosch testified that pursuant to his
discussion with the Bureau representative, he sent a payment for $745.00 to the Bureau
on September 14, 2021, by priority mail, for delivery September 15, 2021. Id. at 75a.
Mrs. Bosch testified that she did not receive or review a notice of tax sale
sent by the Bureau. Id. at 88a-89a. She testified that she had conversations with her
husband about the delinquent taxes and believed he was taking care of getting the taxes
paid. Id. at 95a. She explained that the first time she knew of a threatened tax sale was
4
in late August 2021. Id. at 97a. She explained: “I knew that the taxes were due that
were outstanding, and he handles that [P]roperty. That’s all that I knew, that he was
handling it.” Id. at 95a. She testified that she never had a conversation with any
representative from the Bureau regarding the delinquent taxes. Id. at 89a. She testified
that she only knew that if the Bureau received a payment before September 15, 2021,
that the Property would not be exposed to the sale. Id. at 91a-92a. No one from the
Bureau told her that the amount of $743.10 was to be paid at the Bureau before 9:00
a.m., on September 15, 2021. Id. at 92a. She testified that, had she received a letter
from the Bureau before the sale date that identified the time the Property was to be
sold, she would have driven the check to the Bureau in advance of September 15, 2021.
Id.
On January 27, 2022, the trial court granted the Petition to set aside the
September 15, 2021 tax sale because the Bureau failed to give Mrs. Bosch notice in
accordance with Section 602(e)(1) of the RETSL, 72 P.S. § 5680.602(e)(1). The trial
court reasoned that the Bureau complied with Section 602(e)(1), but the return receipt
sent to Mrs. Bosch was returned signed by Mr. Bosch. The return receipt bearing the
wrong signature put the Bureau on notice that the Section 602(e)(2) warning had to be
given to her. The Bureau, however, did not send Mrs. Bosch another notice of the tax
sale at least ten days before the date of the sale. (Trial Ct. Op., 1/27/22, at 4.) Thus, in
this instance the Bureau did not meet the statutory notice requirement.
As to whether Mrs. Bosch had actual, implied notice of the sale, the trial
court found credible Mrs. Bosch’s testimony that she had conversations with her
husband about the delinquent taxes and that he was taking care of the taxes getting
paid, however, “no testimony was offered to show that [Mrs. Bosch] had been given
notice of the date and time of the upset sale of her property.” Id. at 6 (emphasis
5
added). The trial court also addressed Keller’s claim that Mrs. Bosch was bound by
her judicial admissions in the Petition, in particular, her sworn averments in paragraphs
8 and 9:
8. Petitioners were told by representatives from the Bureau
that $2,747.00 was due by September 15, 2021, to prevent
the Property from being sold.
9. [] Petitioners were further told to pay $743.10 with equal
payments of $248.00 until the entire amount of $2,474.00
was paid in full.
(R.R. at 4a) (emphasis added).
The trial court concluded that even though these averments refer to Mr.
and Mrs. Bosch in the plural, they were not unequivocal admissions because they
conflicted with Mrs. Bosch’s unequivocal testimony at the hearing that she did not
know the date and time of the sale and also with Paragraph 20 of the Petition, which
stated:
20. Here, it is clear that Mrs. Bosch did not receive the
certified mail by the Bureau and did not personally know
the Property was going to be sold at exactly 10:00 AM on
September 15, 2021.
(R.R. at 7a) (emphasis added). Keller appealed to this Court.3
The notice requirements of the RETSL relevant to this case are set forth
in Section 602. 72 P.S. § 5860.602. Section 602(e)(2) of the RETSL “requires separate
individual notice to each named owner of property.” 72 P.S. § 5860.602(e)(2). Section
602 requires three different forms of notice to property owners prior to an upset tax
sale: publication, posting, and mail. The notice must include:
3
Our standard of review in tax sale cases is limited to determining whether the trial court
abused its discretion, rendered a decision with a lack of supporting evidence, or clearly erred as a
matter of law. Matter of Tax Sales, 651 A.2d 1157 (Pa. Cmwlth. 1994).
6
(1) the purposes of such sale, (2) the time of such sale, (3) the
place of such sale, (4) the terms of the sale including the
approximate upset price, [and] (5) the descriptions of the
properties to be sold as stated in the claims entered and the
name of the owner.
72 P.S. § 5860.602(a).
The notice must also notify the property owners that “the sale of any
property may, at the option of the bureau, be stayed if the owner thereof or any lien
creditor of the owner on or before the actual sale enters into an agreement with the
bureau to pay the taxes in instalments, in the manner provided by this act.” 72 P.S. §
5860.602(f). In accordance with Section 602(e)(2) of the RETSL, if a return receipt is
not received from each owner, then at least ten days before the sale, similar notice of
the sale shall be given to each owner who failed to acknowledge the first notice by U.S.
certified mail at his last known address. 72 P.S. § 5860.602(e)(2).4
In all tax sale cases, the tax claim bureau “has the burden of proving
compliance with the statutory notice provisions.” Krawec v. Carbon County Tax Claim
4
Here, the receipt received by the Bureau for Mrs. Bosch bore the name of Mr. Bosch, and
the Bureau made no other efforts to send her a second notice. In Mangine Appeal, 487 A.2d 45 (Pa.
Cmwlth. 1985) and Gill v. Tax Claim Bureau of Monroe County, 616 A.2d 198 (Pa. Cmwlth. 1992),
the tax bureau sent separate notices to both the husband and wife by certified mail, restricted delivery,
return receipt requested. In each instance, the wife signed for her notice and also signed her name
for her husband’s notice. As such, the husband’s receipt cards, returned to the tax bureau, bore the
wife’s signature. In both cases, we concluded that because the husband had not acknowledged receipt
of the first notice, the bureau was required to send a second notice in accordance with the statute.
Because the bureau failed to send the second notice after the first notice went unacknowledged, we
determined that the bureau failed to comply with the RETSL. Here, as in Mangine and Gill, it is
undisputed that the Bureau failed to comply with the statutory notice requirements of Section
602(e)(2) of the RETSL because it failed to send Mrs. Bosch a second notice after the first one went
unacknowledged. Cf., In re Upset Tax Sale Held 11/10/97, 784 A.2d 834 (Pa. Cmwlth. 2001) (holding
statutory requirements were met where the receipt received by the bureau bore purported signature of
husband to whom the notice was sent, even though wife had signed it for him). The narrow question
in this appeal involves whether the trial court erred in concluding that Mrs. Bosch did not have actual
or implied knowledge of the tax sale.
7
Bureau, 842 A.2d 520, 523 (Pa. Cmwlth. 2004). “If any of the three types of notice is
defective, the tax sale is void.” Gladstone v. Federal National Mortgage Association,
819 A.2d 171, 173 (Pa. Cmwlth. 2003).
Strict compliance with the notice requirements of Section 602 is not
required when the Bureau proves that a property owner received actual notice of a
pending tax sale. Sabbeth v. Tax Claim Bureau of Fulton County, 714 A.2d 514, 517
(Pa. Cmwlth. 1998). Actual notice in the tax sale context “encompasses both express
notice and implied actual notice.” Id. (emphasis in original). Actual notice must be
“positively proven” and require no speculation about what conversations did or did not
occur. See In re Tax Claim Bureau of Lehigh County 1981 Upset Tax Sale Properties,
507 A.2d 1294, 1296 (Pa. Cmwlth. 1986); Casaday v. Clearfield County Tax Claim
Bureau, 627 A.2d 257, 259 (Pa. Cmwlth. 1993). Whether a taxpayer has actual notice
of an upset tax sale of his or her property is a question of fact, the resolution of which
will not be disturbed on appeal if supported by substantial evidence. Aldhelm, Inc. v.
Schuylkill County Tax Claim Bureau, 879 A.2d 400, 407 (Pa. Cmwlth. 2005).
Implied Actual Notice
Relying principally upon Sabbeth, Keller first argues that the trial court
abused its discretion when it concluded that Mrs. Bosch did not have actual or implied
actual notice of the tax sale. In Sabbeth, the Court noted that cases discussing what
constituted “actual notice” were fact specific and did not state a definition of the term,
and the Court relied on the definition that implied “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.” Sabbeth, 714 A.2d at 517 (quoting Black’s
Law Dictionary 1061-1062 (6th ed.1990)). In Sabbeth, we held that a property owner
8
had imputed knowledge of the sale because, after being sent appropriate notices, she
left these notices unopened on her desk for nearly two months until the day of the sale.
The record in that case showed that
Sabbeth received notices for two years stating that the taxes
assessed on the subject property were in arrears. Sabbeth
worked directly across the street from the subject property on
which notices were posted stating that the subject property
was subject to tax sale. Most importantly, Sabbeth regularly
went to her office to review the mail. It was in this office
where a certified letter of notice from the [b]ureau remained
upon her desk unattended for fifty-three days until its
discovery the very day of the tax sale.
Sabbeth, 714 A.2d at 517. Based on that record evidence, we concluded that the
property owner’s claims that she was without actual notice of the tax sale were “nothing
short of incredible.” Id.Keller argues that as in Sabbeth, the facts establish that Mrs. Bosch had
actual implied notice of the time and date of the tax sale. He argues her testimony on
cross-examination established that she first became aware of the pending sale in late
August, which was at least three weeks before the date of the tax sale.
The issue of actual notice is “fact specific.” Sabbeth, 714 A.2d at 517.
As we recognized in Sabbeth, the appellate court must examine the “totality of the
circumstances” to determine if the property owner had actual knowledge of the sale.
Id. Questions of credibility, conflicts in the evidence and the weight to assign evidence
are matters for the trier of fact to resolve and will not be disturbed on appeal.
Consolidated Return by McKean County Tax Claim Bureau of 9/12/2000, 820 A.2d
900 (Pa. Cmwlth. 2003).
Here, the trial court concluded that Mrs. Bosch’s testimony was credible
and that she did not have notice of the date and time of the upset sale of the Property.
9
She testified that she did not receive or review the Bureau’s notice of the tax sale.
(R.R. at 88a.) She never had any conversations with any representatives from the
Bureau. Id. at 89a. In her conversation with her husband about the delinquent taxes,
she understood that he was taking care of getting the taxes paid. Id. at 91a-92a.
Although she said she was aware in August of 2021 of a threatened tax sale, there was
no evidence that Mrs. Bosch ever possessed the notice which stated that the Property
was to be sold on September 15, 2022, at 10:00 a.m. The Bureau’s notices must state
the time and date of the sale. Although Mrs. Bosch was aware that there were taxes
due, there was no evidence that she knew of the date or time of the upcoming tax sale.
Mere notice of delinquent taxes does not constitute implied actual notice of a tax sale.
In re Dauphin County, 834 A.2d 1229, 1234 (Pa. Cmwlth. 2003). As the trial court
noted, Mrs. Bosch’s testimony was unrebutted, and credible. (Trial Ct. Op. at 6.) This
Court is bound by that factual finding. See Sabbeth, 714 A.2d at 516. Moreover, unlike
the taxpayer in Sabbeth, Mrs. Bosch did not intentionally ignore an envelope from the
Bureau. Finally, Mrs. Bosch credibly testified that she relied on her husband’s
assertions that the taxes were being paid and had she known that the sale was scheduled
for 10:00 a.m., she would have driven the check to the Bureau in advance of September
15, 2021. (R.R. at 91a-92a.)
In sum, the factual circumstances surrounding the notice to Mrs. Bosch
are not sufficient to overcome the trial court’s credibility determination and conclusion
that she did not have actual notice of the time and date of the sale. Accordingly, we
conclude that the trial court did not err or abuse its discretion in concluding that the
Bureau failed to meet its burden of proof to establish that Mrs. Bosch had “implied
actual notice” of the time and date of the tax sale.
10
Judicial Admissions
Next, Keller argues that the trial court abused its discretion in concluding
that averments in the Petition did not constitute judicial admissions that Mrs. Bosch
had actual notice of the date and time of the tax sale because certain paragraphs refer
to Mr. and Mrs. Bosch collectively as “Petitioners.” He contends that the trial court
should have held that these averments constituted judicial admissions and that Mr. and
Mrs. Bosch waived any right to attack the validity of the tax sale based upon alleged
statutory defects in the notice of sale received. He argues that judicial admissions
control over testimony and a party cannot present contrary evidence to dispute a
judicial admission. Nasim v. Shamrock, 563 A.2d 1266 (Pa. Super. 1989). He contends
that the trial court erred by relying on Mrs. Bosch’s testimony that was in conflict with
her judicial admission. He claims Mrs. Bosch was bound by the averments in the
Petition and, therefore, should not have been permitted to contradict her earlier
admission.
A judicial admission is “an express waiver made in court or preparatory
to trial by a party or his attorney, conceding for the purposes of trial, the truth of the
admission,” and may be contained in pleadings, stipulations, and other like documents.
Sherill v. Workmen’s Compensation Appeal Board (School District of Philadelphia),
624 A.2d 240, 243 (Pa. Cmwlth. 1993). For an averment to qualify as a judicial
admission, it must be a clear and unequivocal admission of fact. John B. Conomos,
Inc. v. Sun Company, 831 A.2d 696, 713 (Pa. Super. 2003). The fact must have been
unequivocally admitted and not be merely one interpretation of the statement that is
purported to be a judicial admission. Thomas v. County of Bucks Tax Claim Bureau,
293 A.3d 1249 (Pa. Cmwlth. 2023). An admission is not conclusively binding when
the statement is indeterminate, inconsistent, ambiguous or could be reasonably
11
construed to admit of more than one meaning. Koziar v. Rayner, 200 A.3d 513, 521
(Pa. Super. 2018). Additionally, it is improper to look at the averment at issue in a
vacuum. Branton v. Nicholas Meat, LLC, 159 A.3d 540, 557 (Pa. Super. 2017).
Instead, the pleading must be viewed as a whole, and the averment must be “viewed in
the context of the remaining allegations and damages sought to be recouped.” Id.(citation omitted).
In this case, although certain paragraphs of the Petition refer to Mr. and
Mrs. Bosch as “Petitioners,” Paragraph 20 of the Petition unambiguously states that
Mrs. Bosch did not know of the tax sale. As the trial court recognized, a reading of
Paragraph 20 with the earlier paragraphs revealed “conflicting statements of what [Mrs.
Bosch] allegedly knew” and that reading them together did “not lead to an unequivocal
admission.” (Trial ct. op., at 9.) We discern no error in that assessment. The averments
Keller relies on were not clear and unequivocal and capable of only one meaning due
to the fact that they were inconsistent with other averments made in the Petition. Thus,
we find that the averments of the Petition do not meet the well-established criteria of
judicial admissions that precluded Mrs. Bosch’s testimony at trial.
Based on the foregoing, the order of the trial court setting aside the tax
sale is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph Bosch and :
Rosemarie Bosch :
: No. 192 C.D. 2022
v. :
:
Tax Claim Bureau of Monroe :
County and Jason Keller :
:
Appeal of: Jason Keller :
ORDER
AND NOW, this 16th day of November, 2023, the January 27, 2022
order of the Court of Common Pleas of Monroe County is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge