Consolidated Reports & Return by the Tax Claims Bureau of Northumberland County of Properties

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Famageltto and Linda :
Famageltto, :
:
Appellants :
:
v. : No. 1271 C.D. 2014
:
County of Erie Tax Claim Bureau : Submitted: September 16, 2015
and Perry Properties, Inc. :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION BY
JUDGE COHN JUBELIRER FILED: January 21, 2016
Anthony Famageltto and Linda Famageltto, husband and wife, (together,
Appellants), appeal from a June 23, 2014 Order of the Court of Common Pleas of
Erie County (trial court) denying Appellants’ Petition to Set Aside Tax Sale
(Petition to Set Aside) of their home at 12769 Route 89, Wattsburg Township, Erie
1
This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
County (Property). On appeal, Appellants argue that the trial court erred when it
denied their Petition to Set Aside because the County of Erie Tax Claim Bureau
(Bureau) did not comply with multiple provisions of the Real Estate Tax Sale Law3
(Law) or due process. Appellants also argue that the trial court abused its
discretion when it granted the Bureau’s September 10, 2013 Petition to Waive
Personal Service (Waiver Petition). For the following reasons we affirm, in part,
reverse, in part, and remand for further proceedings.
I. NOTICE PRIOR TO AN UPSET TAX SALE
We are once again called upon to address a property owner’s right to notice
prior to a sale of property due to unpaid property taxes. “[T]he forfeiture of a
person’s property rights for failure to pay taxes is a momentous event under the
Pennsylvania and United States Constitutions.” Stanford-Gale v. Tax Claim
Bureau of Susquehanna County, 816 A.2d 1214, 1216 (Pa. Cmwlth. 2003).
Accordingly, the General Assembly established detailed notice provisions within
the Law in order to guard against the deprivation of property without due process.
Donofrio v. Northampton County Tax Claim Bureau, 811 A.2d 1120, 1122 (Pa.
Cmwlth. 2002). Because tax claim bureaus have a constitutional duty to provide
notice prior to a tax sale, tax claim bureaus bear the burden of showing strict
compliance with the notice provisions of the Law and our inquiry focuses “not on
the alleged neglect of the owner, which is often present in some degree, but on
whether the activities of the Bureau comply with the requirements of the [Law].”
Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1251 (Pa. Cmwlth.
2003).
3
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101-5860.803.
2
The notice requirements of the Law relevant to this case are as follows.
Section 602 of the Law, 72 P.S. § 5860.602, requires three different forms of
notice to property owners prior to an upset tax sale: publication, posting, and mail. 4
Appellants here challenge the Bureau’s compliance with the mailing requirements
of Section 602(e) of the Law, which provides, in relevant part:
(e) In addition to such publications, similar notice of the 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.
72 P.S. § 5860.602(e)(1), (2).
4
Section 602(a) requires that notice be published in two newspapers of general
circulation in the county and one “legal journal, if any, designated by the court for publication of
legal notices” at least thirty days prior to the scheduled sale. 72 P.S. § 5860.602(a). Section
602(e)(3) of the Law, 72 P.S. § 5860.602(e)(3), requires that the property “be posted at least ten
(10) days prior to the sale.” The posting of the property must be done in a manner that is
“reasonable and likely to inform the taxpayer, as well as the public at large, of an intended real
property sale.” In Re: Upset Sale Tax Claim Bureau McKean County on September 10, 2007,
965 A.2d 1244, 1247 (Pa. Cmwlth. 2009) (internal quotations omitted).
3
When doubt is raised concerning the receipt of a mailed notice, Section
607.1 of the Law5 requires taxing claim bureaus to conduct reasonable efforts to
discover the whereabouts of, and provide notice to, the record owners of property
scheduled to be exposed to an upset tax sale. We have summarized the efforts
required as “determining the owners of record and then to use ordinary common
sense business practices to ascertain proper addresses where notice of the tax sale
may be given.” In re Tax Sale of Real Property Situated in Jefferson Township,
828 A.2d 475, 479 (Pa. Cmwlth. 2003).
In addition to the notice requirements of Section 602 and 607.1, if the
property is occupied by the owner, Section 601(a)(3) of the Law requires tax claim
bureaus to personally serve property owners with written notice of a tax sale.
Section 601(a)(3) of the Law provides:
No owner-occupied property may be sold unless the bureau 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 bureau, or the persons
appointed by the county commissioners in lieu of the sheriff or his
deputy shall file with the bureau 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 bureau to make such personal service, the bureau 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.
5
Added by Section 30 of the Act of July 3, 1986, P.L. 351, 72 P.S. § 5860.607a(a).
4
72 P.S. § 5860.601(a)(3). As such, because the Property at issue here was owner-
occupied by Appellants, the Bureau was required to comply with Section 601(a)(3)
of the Law.
With the foregoing principles in mind, we turn to the facts in the instant
matter.
II. BACKGROUND
The trial court held hearings on the matter on April 29, 2014 and June 18,
2014, which adduced the following facts. Appellants received the ten acre
Property as a wedding gift from Mrs. Famageltto’s father more than thirty years
ago. From time to time, Appellants encountered difficulties staying current on
their property tax bills and entered into two stay agreements with the Bureau as
authorized by Section 603 of the Law.6 Appellants defaulted on the agreement,
6
72 P.S. § 5860.603. Section 603 states, in relevant part:
Any owner or lien creditor of the owner may, at the option of the bureau, prior to
the actual sale . . . enter into an agreement, in writing, with the bureau 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
this act, 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. So
long as said agreement is being fully complied with by the taxpayer, the sale of
the property covered by the agreement shall be stayed . . . If a party to an
instalment agreement defaults on the agreement, the bureau shall not enter into a
new instalment agreement with that person within three (3) years of the default.
Id.
5
and, pursuant to Section 603 of the Law, were prohibited from entering into any
new payment agreements for three years. Appellants entered into a second stay of
sale agreement in 2011 covering tax years 2009 and 2010. The 2011 Stay
Agreement required Appellants to pay installment payments in years 2011 and
2012 to satisfy delinquent taxes for 2009 and 2010. Appellants satisfied the 2011
Stay Agreement, though remained delinquent on their property taxes for tax year
2011. Since the tax year 2011 property taxes remained unpaid, the Bureau initiated
the upset tax sale process in July 2013. On July 10, 2013, the Bureau sent two
separate notices to Appellants at the address of the Property via certified mail, both
of which were returned unclaimed.7
On July 17, 2013 the Bureau assigned Crystal Ellsworth (Server) to
personally serve Appellants with notice of the upset tax sale and to physically post
the Property. Server testified that, on August 22, 2013, she physically posted
notice on the Property next to Appellants’ mailbox, which was approximately three
feet from Route 89.8 Server then attempted to personally serve Appellants by
driving to the front of the house and knocking on the door underneath the front
porch. Server stated that she waited for approximately one minute, took pictures of
the Property, and then left.
7
Appellants do not argue that notice was not properly published prior to the upset tax
sale. Evidence was submitted that showed that the Bureau published notice of the September 30,
2013 upset tax sale of the Property, along with hundreds of other properties, in The Erie County
Legal Journal and The Erie Times-News.
8
Server’s testimony at the April 29, 2014 hearing is found at pages 321a-37a of the
reproduced record.
6
Steven Letzelter, Director of the Bureau (Director), testified that because
the notice of the upset tax sale through certified mail was returned unclaimed, the
Bureau searched for alternative addresses for Appellants in, inter alia, its internal
records, the telephone directory, the Tax Assessment Office records, the Office of
the Prothonotary, and the local tax collector records.9 The Bureau discovered an
additional address for Appellants in the telephone directory, 12801 Rt. 89,
Wattsburg, Pa., which Appellants testified was the address for Mrs. Famageltto’s
brother’s home. Then, on September 16, 2013, the Bureau sent three notices of the
September 30, 2013 upset tax sale by first class mail: one to Appellants at the
Property, and separate letters to each Appellant at the alternative address identified
in the telephone directory.
On September 10, 2013, the Bureau filed its Waiver Petition with the trial
court seeking to have the personal service of notice requirement of Section
601(a)(3) of the Law waived for Appellants and the owners of 1,700 other owner-
occupied properties scheduled to be exposed to the September 30, 2013 upset tax
sale. The Waiver Petition states:
The Server designee of Erie County has attempted to make personal
service on the owner-occupiers of property listed. . . . For various
reasons, including that the owner-occupiers have moved to parts
unknown, the house being vacant, the owner-occupants refusing to
answer the door, etc., personal service was not able to be made. . . .
[T]he [S]erver designee made a good faith attempt to make personal
service on the owner-occupiers. []All other requirements of notice,
9
Director’s testimony at the April 29, 2014 hearing is found at pages 277a-318a of the
reproduced record.
7
including publication in the newspaper and posting a sign on the
properties have been accomplished.
(Waiver Petition ¶¶ 4-6, R.R. at 221a.) The exhibit attached to the Waiver Petition
lists the index number and the record owner(s)’ name for each of the 1,700
properties for which the Bureau sought waiver, with a notation indicating there was
“No Response,” and a signed Verification by the Supervisor of the Bureau of
Revenue and Tax Claim. (Waiver Petition, R.R. at 224a-59a.) The Waiver
Petition was granted by Judge Cunningham of the trial court on the same day it
was filed, September 10, 2013. The Bureau sold the Property on September 30,
2013. The successful bidder was Perry Properties, Inc. (Purchaser).
Appellants testified at the June 18, 2014 hearing. Mrs. Famageltto testified
as follows.10 She is the person in the household that normally pays property taxes,
which she pays periodically when they are due. Mrs. Famageltto was aware that
she and her husband were behind on their taxes and that failure to pay the taxes
could result in a tax sale. However, Mrs. Famageltto did not know until the date of
the tax sale that the Property was to be sold. Appellants do occasionally receive
certified mail at the Property, but Mrs. Famageltto did not recall for sure whether
she received such a mailing in July 2013. With regard to the posting on the
Property, Mrs. Famageltto testified that she did not see a posting near their mailbox
in August 2013, but acknowledged spotting a stake lying on the ground near their
mailbox. At some point after the September 30, 2013 upset tax sale, she found
part of the posted notice in some high grass about twenty feet from their driveway
10
Mrs. Famageltto’s testimony at the June 18, 2014 hearing is found at 351a-94a of the
reproduced record.
8
along Route 89. Mrs. Famageltto surmised that a truck may have knocked down
the stake and the notice blew down the road before getting caught in the tall
grass.11
Mr. Famageltto testified at the June 18, 2014 hearing that he did not recall
receiving anything in the mail in August 2013 regarding unpaid property taxes.12
Mr. Famageltto stated that he knew there was something at the post office waiting
for the couple regarding taxes at some point earlier in the summer of 2013 and
asked Mrs. Famageltto to take care of it. He testified that his wife told him that the
notice had something to do with taxes on their home. Mr. Famageltto also
testified, after reviewing his previous deposition testimony, that the post office
once notified him that he had too much mail in the mailbox and that notice of the
tax sale could have been sitting in his mailbox for some time prior to it being
discovered.
11
On cross-examination, Mrs. Famageltto was confronted with testimony she gave at an
earlier deposition. Mrs. Famageltto was asked by counsel for Purchaser whether she testified
during that deposition that the posted notice was found in her gardening beds next to her
mailbox, and not in the tall grass down the road as she testified to at the June 18, 2014 hearing.
Mrs. Famageltto testified that she discovered the notice while working in the flower beds, but did
not actually find the notice in the flowerbeds. (Hr’g Tr. at 41, June 18, 2014, R.R. at 389a.) On
redirect, counsel for Appellants asked Mrs. Famageltto to read the deposition verbatim. Mrs.
Famageltto read the question as “when did you discover [the posted notice].” (Hr’g Tr. at 42,
June 18, 2014, R.R. at 390a.) Mrs. Famageltto’s deposition testimony focused on when the
notice was discovered and the hearing testimony focused on where the notice was discovered.
12
Mr. Famageltto’s testimony at the June 18, 2014 hearing is found at 394a-415a of the
reproduced record.
9
There is some discrepancy in the testimonies of Appellants with regard to
when they actually learned of the sale. Mr. Famageltto testified that he received
the notice dated September 11, 2013 on September 30, 2013, the morning of the
tax sale, when he retrieved some mail from his mailbox. Mr. Famageltto stated
that he immediately called Mrs. Famageltto to ask her to discover what was
happening. According to Mr. Famageltto, Mrs. Famageltto called him back within
an hour and a half of his call to inform him that the Bureau told her that the
Property was already sold at a tax sale. (Hr’g Tr. at 56-58, June 18, 2014, R.R. at
404a-06a.) However, Mrs. Famageltto testified that Mr. Famageltto called her in
the afternoon of September 30, 2013 to inquire about the notice he picked up in the
mail earlier that morning and that she did not go to the courthouse until October 1,
2013 where she learned that the Property was sold. (Hr’g Tr. at 35, R.R. at 383a.)
Mrs. Famageltto testified that because Mr. Famageltto did not call her until late in
the day on September 30, 2013, she did not have time to go to the courthouse to
inquire about the notice on that day. (Hr’g Tr. at 36, R.R. at 384a.) Both
Appellants testified that, if they knew of the tax sale earlier, they would have either
entered into a new payment agreement or borrowed money from their children to
pay the tax delinquency.
Upon review of the facts, the trial court concluded:
the agency strictly complied with the tax sale law. They crossed
every “t” and dotted every “i” with respect to the service requirements
of the statute. The [Appellants’] testimony does not credibly refute
this conclusion. As to [Appellants’] claim that the petition presented
to Judge Cunningham requesting a waiver of personal service was
deficient, this Court disagrees. It is not this Court’s role to second
guess or overrule Judge Cunningham’s ruling as it is binding on this
10
Court under the coordinate jurisdiction doctrine Commonwealth v.
Starr, 664 A[.]2d 1326, 1331-1333 (Pa[.] 1995)[.]
Sadly, the [Appellants] have lost their family home. However,
any fault lies not with the tax claim bureau, but with their failure to do
what was necessary to avoid these unfortunate circumstances. The
direct and circumstantial evidence established that they either knew of
the pending sale or intentionally avoided notice of it[.] Therefore, the
[Appellants] are not entitled to relief[.]
(Trial Ct. Op. at 5.) This appeal followed.13
III. APPELLANTS’ APPEAL
On appeal, Appellants argue that the trial court erred in denying their
Petition to Set Aside because the Bureau did not comply with various notice
requirements of the Law and due process. Specifically, Appellants contend that
the trial court erred when it denied Appellants’ Petition to Set Aside because the
Bureau did not show that it strictly complied with the requirement of Section 607.1
of the Law to conduct reasonable efforts to discover the whereabouts of
Appellants. Appellants also argue that the trial court erred by denying their
Petition to Set Aside because the Bureau did not show that it satisfied the demands
of due process by providing Appellants with actual notice of the impending tax
sale of the Property. Finally, Appellants argue the trial court erred in granting the
Bureau’s Waiver Petition on September 10, 2013 because the Bureau did not
satisfy the good cause requirement of Section 601(a)(3) of the Law and the Waiver
Petition was defective on its face because it did not aver that the Bureau waited the
13
Our review in tax sale cases “is limited to determining whether the trial 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).
11
requisite twenty-five days prior to seeking a waiver of the personal service of
notice requirement. We shall address each issue seriatim.
A. Compliance with Section 607.1 of the Law
Appellants first argue that the trial court erred and that the tax sale should be
set aside because the Bureau failed to conduct reasonable efforts to discover
Appellants’ whereabouts as required by Section 607.1 of the Law. Appellants
contend that the Bureau should have searched for Appellants’ telephone number
and called Appellants to notify them of the tax sale. Relatedly, Appellants contend
that while the Bureau sent notice to an alternative address, it sent the notice by first
class mail too late to effectuate actual notice and never attempted to personally
serve notice upon them at the alternative address.
We have said that “[w]here notice is obviously not effectively reaching the
owners of record, the taxing bureau must go beyond the mere ceremonial act of
notice by certified mail.” Jefferson Township, 828 A.2d at 479. If the certified
mailed is either returned unsigned, not returned, or returned under circumstances
raising significant doubt as to the actual receipt of the notice, Section 607.1(a) of
the Law requires taxing bureaus to conduct reasonable efforts to notify record
owners, including,
but not necessarily be restricted to, a search of current telephone
directories for the county and of the dockets and indices of 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 notation shall be placed in the property file
12
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 this act.
72 P.S. § 5860.607a(a).
Contrary to Appellants’ assertions, we conclude that the Bureau undertook
reasonable notification efforts to discover Appellants’ whereabouts as required by
Section 607.1 of the Law. After attempts to deliver the notice by certified mail
were returned to the post office unclaimed, the Bureau searched its internal records
as well as the records of the assessment office, office of deeds and wills, the
prothonotary’s office, and the local tax collector. (Notes of Additional Notification
Efforts, R.R. at 215a-16a.) The Bureau also searched the telephone directory and
the “Polk Directory” for an alternate address. (Notes of Additional Notification
Efforts, R.R. at 215a-16a.) The Bureau discovered an alternate address for
Appellants in the telephone directory. The alternate address, 12801 Route 89,
Wattsburg, Pa., is located adjacent to the Property and is owned by Mrs.
Famageltto’s brother. On September 11, 2013, the Bureau mailed one notice of the
tax sale to Appellants at the Property, and two separate letters to each Appellant at
12801 Route 89, Wattsburg, Pa. (Ten Day Notices, R.R. 217a-19a; Proof of
Mailing, R.R. at 220a.) These efforts were reasonable and satisfy the requirements
of Section 607.1 of the Law. The Law does not require tax claim bureaus to place
a phone call to a property owner prior to a tax sale or to personally serve notice
upon any other address other than the address of the Property.14 We note that the
address of the Property was the correct address for Appellants.
14
Appellants cite to a footnote in our decision in Fernandez v. Tax Claim Bureau of
Northampton County, 925 A.2d 207, 214 n.17 (Pa. Cmwlth. 2007), as support for their argument
that Section 607.1 of the Law requires tax claim bureaus to call a number listed for a property
(Continued…)
13
Insofar as Appellants argue the timeliness of the first class mailing did not
afford them sufficient time to pay their delinquent property taxes, the Bureau
mailed the notice on September 11, 2013, more than 10 days before the date of the
sale in accordance with Section 602(e)(2) of the Law. Mr. Famageltto conceded
during his June 18, 2014 testimony that it was possible that the notice was in the
mailbox for some time and that he received a notice from the post office that his
mailbox was too full. (Hr’g Tr. at 64, June 18, 2014, R.R. at 412a.) Although
Appellants testified that they did not receive the notice until the morning of the tax
sale, the cause of the delay was not attributable to the date of mailing, but rather to
Appellants’ delay in retrieving mail from their mailbox.
B. Compliance with Due Process
Appellants next contend that, in addition to satisfying the notice
requirements of the Law, due process requires tax claim bureaus to provide
property owners with actual notice of pending tax sales, if reasonably possible.
Appellants argue that the trial court erred by blaming them for the lack of notice
when due process could have been satisfied if the Bureau sent notice by mail
earlier, called Appellants, or attempted to personally service notice upon them in
the evening.
owner in the telephone book. Appellants misconstrue our holding in that case. The tax sale in
Fernandez was set aside because the tax claim bureau failed to search the records of the tax
assessment office. Id. at 214. Nowhere in Fernandez, or anywhere else in our case law, do we
hold that Section 607.1 of the Law requires tax claim bureaus to call a property owner to confirm
the whereabouts of a property owner or to provide notice of a tax sale.
14
A fundamental requirement of due process is that notice be “reasonably
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.”
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Our
Supreme Court has applied this principle to the tax sale context as requiring tax
claim bureaus to undertake “reasonable effort[s]” “to provide actual notice” of the
tax sale. Tracy v. County of Chester, Tax Claim Bureau, 489 A.2d 1334, 1338 (Pa.
1985) (emphasis in original). Appellants are correct that “a taxing authority’s strict
compliance with the [notice requirements of the Law] does not necessarily satisfy
the demands of due process.” Geier v. Tax Claim Bureau of Schuylkill County,
588 A.2d 480, 483 (Pa. 1991). Due process requires that the “practicalities and
peculiarities of the case” are considered and given their “due regard.” Mullane,
339 U.S. at 314.
The cases cited by Appellants where courts of this Commonwealth have held
that strict compliance with the notice requirements of the Law is insufficient to
satisfy the demands of due process involve circumstances where the tax claim
bureau failed to send notice to all of the property owners. See, e.g. Geier, 588
A.2d at 482 (holding that notwithstanding technical compliance with the notice
requirements of the Law, an individual who had an interest in the property via a
partnership agreement was entitled to mailed notice of the tax sale). We have said
that the “essence” of these cases is that “due process requires [tax claim] bureaus . .
. to conduct reasonable investigations to ascertain the identity and whereabouts of
the latest owners of record of property subject to an upset sale for purposes of
15
providing notice to that party.” Farro v. Tax Claim Bureau of Monroe County, 704
A.2d 1137, 1142 (Pa. Cmwlth. 1997).
Appellants neither argue that the notices were sent to the incorrect owners of
the Property, nor do they argue that the notices were sent to an incorrect address.
It is undisputed that notice was sent to Appellants at their correct address and that
Appellants are the record owners of the Property. The only justification for
Appellants not receiving notice on time to prevent the tax sale is that Appellants
failed to retrieve their mail or see the notice posted next to their mail box. Due
process does not require tax claim bureaus to conduct extraordinary efforts to
provide notice when a property owner’s failure to retrieve his or her mail caused
the lack of actual notice. By strictly complying with the notice requirements of the
Law and satisfying its obligations under Section 607.1 of the Law to discover the
whereabouts of, and provide notice to, the record owners of the Property, the
Bureau provided notice to Appellants in a manner reasonably calculated to provide
Appellants notice of the September 30, 2013 upset tax sale and, therefore, satisfied
the demands of due process.
C. Waiver of Personal Service of Notice
Finally, Appellants argue that the Waiver Petition did not satisfy the “good
cause” requirement of Section 601(a)(3) of the Law. According to Appellants, the
Waiver Petition was not supported by facts showing when service was attempted,
on how many occasions, or who attempted service, and the only justification listed
for the waiver was that there was no response. Appellants also argue that the
Waiver Petition is defective on its face insofar as it fails to show that the Bureau
16
waited the required twenty-five days after personal service of notice was requested
prior to seeking a waiver from the trial court.
The Bureau and Purchaser respond by arguing that the trial court correctly
waived the personal service of notice requirement of Section 601(a)(3) of the Law
because the Bureau complied with the requirements to obtain such a waiver and
Appellants were not home when Server attempted to effectuate personal service.
Purchaser also argues that the trial court was correct to not second guess Judge
Cunningham’s decision to grant the Bureau’s Waiver Petition under the coordinate
jurisdiction doctrine.
Section 601(a)(3) of the Law requires tax claim bureaus to provide owner-
occupants with personal service of written notice of a pending tax sale at least ten
days prior to the tax sale. Section 601(a)(3) demonstrates the General Assembly’s
“heightened concern for owner occupants being divested of the very property in
which they are residing.” Matter of Tax Sales by Tax Claim Bureau of Dauphin
County, 651 A.2d 1157, 1159 (Pa. Cmwlth. 1994). We have said that, “[b]y
enacting [S]ection 601[(a)(3)], the [General Assembly] expressed a desire to
provide a qualitatively different type of notice to an owner occupant and afford
such owner with increased protection by way of additional notice.” McKelvey v.
Westmoreland County Tax Claim Bureau, 983 A.2d 1271, 1274 (Pa. Cmwlth.
2009). Yet, the General Assembly understood that, in certain circumstances, tax
claim bureaus should not be required to incur the high costs associated with
ensuring that notice was received by each owner-occupant personally and included
a provision within Section 601(a)(3) of the Law allowing the personal service of
17
notice requirement to be waived for “good cause shown.” The General Assembly
decided to place a burden on the taxing bureaus to provide justification for a
waiver and to give trial courts the task of balancing the goal of providing
heightened notice to owner-occupants against the taxing bureaus’ obligations to
collect property taxes. See In Re: Consolidated Reports et al (Neff), ___ A.3d ___,
___ (Pa. Cmwlth., No. 752 C.D. 2014, filed January 21, 2016) (en banc), slip op. at
20 (reasoning that whether good cause under Section 601(a)(3) of the Law exists is
a matter left to the trial court’s sound discretion and requires trial courts to
“consider[] the facts of this case in light of the fundamental purposes of the Law”).
The trial court here did not independently examine whether the Bureau
showed good cause to waive the personal service of notice requirement under
Section 601(a)(3) of the Law. Instead, the trial court found that it was not its “role
to second guess or overrule Judge Cunningham’s ruling as it [was] binding on [the]
Court under the coordinate jurisdiction doctrine.” (Trial Ct. Op. at 5.) Whether a
trial court is obligated to uphold, on the basis of the coordinate jurisdiction
doctrine, an earlier order waiving personal service of notice pursuant to Section
601(a)(3) of the Law is a matter of first impression for this Court.
The coordinate jurisdiction doctrine states that “judges of [equal] jurisdiction
sitting in the same case should not overrule each others’ decisions.”
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). In Starr, our Supreme
Court reasoned that the coordinate jurisdiction rule fits squarely under the larger,
“law of the case” doctrine and merged the two doctrines “in an effort to
standardize and streamline the law to which [Pennsylvania] courts must refer when
18
considering prior rulings of courts of coordinate jurisdiction . . . .” Id. at 1333.
The law of the case doctrine “refers to a family of rules which embody the concept
that a court involved in the later phases of a litigated matter should not reopen
questions decided by another judge of that same court or by a higher court in the
earlier phases of the matter.” Id. at 1331. The goal of the doctrine is: “(1) to
protect the settled expectations of the parties; (2) to insure uniformity of decisions;
(3) to maintain consistency during the course of a single case; (4) to effectuate the
proper and streamlined administration of justice; and (5) to bring litigation to an
end.” Id. Departure from the law of the case doctrine
is allowed only in exceptional circumstances[,] such as where there
has been an intervening change in the controlling law, a substantial
change in the facts or evidence giving rise to the dispute in the matter,
or where the prior holding was clearly erroneous and would create a
manifest injustice if followed.
Id. at 1332.
Under these circumstances, we do not believe the coordinate jurisdiction rule
precluded the trial court from examining whether there was good cause to waive
the personal service of notice requirement. Judge Cunningham was presented with
the Waiver Petition on September 10, 2013, requesting a waiver of personal
service of notice for 1,700 property owners. The Bureau provided its justification
for waiver of personal service for 1,700 properties it considered owner-occupied,15
which includes an averment that “server designee made a good faith attempt to
15
We recognize that tax records will often not indicate whether the properties are owner-
occupied, have been rented, or used as a second home.
19
make personal service on the owner-occupiers” and that “[a]ll other requirements
of notice . . . have been accomplished.” (Waiver Petition ¶¶ 5-6, R.R. at 221a.)
Upon receiving the Waiver Petition, Judge Cunningham made an initial
determination of good cause to waive personal service of notice based on the
averments in the Waiver Petition and the attachments thereto, which are clothed in
a presumption of regularity that attaches to all official acts. See Hughes v.
Chaplin, 132 A.2d 200, 202 (Pa. 1957) (stating that “a prima facie presumption of
the regularity of the acts of public officers exists until the contrary appears . . . . In
tax sales it is particularly suitable”) (internal quotations omitted). Based on the
evidence presented to Judge Cunningham, and given the presumption of regularity
that attaches to the Bureau’s activities, we cannot say that the Waiver Petition was
facially defective or that Judge Cunningham abused his discretion in finding that
the Bureau showed good cause for receiving the waiver of personal service of
notice at that time. However, this proceeding was necessarily one-sided because
the property owners had not been found or become part of the process.
It was only later in the statutory tax sale process that Appellants could
become involved. Pursuant to Section 607(b) of the Law,16 within thirty days of
16
72 P.S. § 5860.607(b). Section 607(b) provides:
The bureau shall, at the expense of the county, within ten (10) days after
confirmation nisi of the consolidated return, publish a general notice once in a
newspaper of general circulation published in the county, and in the legal journal,
if any, designated by rules of court for the publication of legal notices, stating (1)
that the consolidated return of the bureau with respect to any such sale for taxes
has been presented to the court, (2) giving the date of confirmation nisi and (3)
that objections or exceptions thereto may be filed by any owner or lien creditor
within thirty (30) days after the court has made a confirmation nisi of the
consolidated return or that the return will be confirmed absolutely.
(Continued…)
20
the trial court confirming the tax sale nisi, a property owner may challenge the
regularity of the sale through filing exceptions. Appellants filed exceptions, and
their challenge rebuts the presumption of regularity of the Bureau’s activities.
Appellants’ exceptions are resolved through a confrontational process where the
burden is initially on the Bureau to show that it strictly complied with the notice
requirements of the Law. Jefferson Township, 828 A.2d at 478-79. It is not until
this point, in the context of the adversarial proceeding, that evidence can be
presented and tested, that a determination as to whether there was in fact good
cause to waive the personal service of notice requirement for that property should
be made, at the same time all the other notice requirements are tested.
Allowing review at this hearing effectuates the legislative intent of the
personal service of notice requirement for owner-occupied properties and is
consistent with the purpose of the coordinate jurisdiction rule. Upon receipt of a
petition to waive the personal service of notice requirement of Section 601(a)(3),
the trial judge may exercise discretion and find that good cause was shown
sufficient to permit the waiver of personal service of notice without further, and
often unnecessary, costs to tax claim bureaus and the courts. For example, in this
case, the petition included 1,700 properties. However, once a property owner
challenges the tax sale, and tax claim bureaus are required to meet the burden of
proving that compliance with the notice requirements of the Law in an adversarial
Id. The statutory appeal process of Section 607(b) of the Law “is not the exclusive method to
challenge the notice. Courts of equity continue to have the power to inquire into the issue even
after the judicial confirmation of a tax sale.” M.C. and E.K. Lees, Inc. v. Capenos, 119 A.3d
1092, 1099 (Pa. Cmwlth. 2015) (emphasis in original).
21
proceeding, there is opportunity to test whether the heightened requirements for
notice to owner-occupants were in fact met. Thus, the legislative intent to provide
additional protections for owner-occupants is fulfilled in a cost-effective manner,
which enables a full hearing and determination on the evidence at the time when a
judge can be presented with all of the evidence. Because this second judge can be
presented with additional and different evidence from both parties regarding the
tax claim bureau’s efforts to comply with the Law’s personal service of notice
requirement, the second judge is not deciding the same questions as the first judge
and the coordinate jurisdiction doctrine should not apply. Therefore, because the
coordinate jurisdiction rule did not preclude the trial court from considering
whether the Bureau satisfied the good cause shown requirement of Section
601(a)(3) of the Law based on the evidence, testimony, and arguments made by the
parties in this matter,17 we reverse the trial court’s Order and remand for the trial
court to make this determination based on the record evidence.
IV. CONCLUSION
For the foregoing reasons, we reverse the trial court’s Order only insofar as
it upholds the September 10, 2013 order of Judge Cunningham granting the
Bureau’s Waiver Petition and remand for a determination on whether the Bureau
17
Appellants do not argue that the Bureau failed to wait the requisite twenty-five days
before seeking a waiver of the personal service of notice requirement of Section 601(a)(3) of the
Law. Appellants’ argument in this regard is simply that the Waiver Petition is facially defective
because it does not show that the Bureau waited the required time period. As stated above, we
conclude that the Bureau’s Waiver Petition was sufficient under the circumstances to warrant
Judge Cunningham’s Order. We note that challenges alleging that a tax claim bureau did not
comply with the twenty-five day waiting period, like challenges to the “good cause”
requirement, may be addressed in conjunction with a property owner’s other challenges to a tax
claim bureau’s notice efforts.
22
satisfied the requirements of Section 601(a)(3) of the Law. We discern no error in
the remaining portions of the trial court’s Order.
________________________________
RENÉE COHN JUBELIRER, Judge
Judge Leavitt concurs in the result only.
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Famageltto and Linda :
Famageltto, :
:
Appellants :
:
v. : No. 1271 C.D. 2014
:
County of Erie Tax Claim Bureau :
and Perry Properties, Inc. :
ORDER
NOW, January 21, 2016, the June 23, 2014 Order of the Court of Common
Pleas of Erie County (trial court), entered in the above-captioned matter, is
REVERSED to the extent that it upholds the September 10, 2013 order granting
the County of Erie Tax Claim Bureau’s (Bureau) Petition to Waive Personal
Service, and this matter is REMANDED for a determination as to whether the
Bureau satisfied the requirements of Section 601(a)(3) of the Real Estate Tax Sale
Law, 72 P.S. § 5860.601(a)(3). The trial court’s June 23, 2014 Order is affirmed in
all other respects.
Jurisdiction relinquished.
________________________________
RENÉE COHN JUBELIRER, Judge