City of Philadelphia v. Morris Park Congregation of Jehovah's Witnesses

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
:
v. : No. 264 C.D. 2015
: Argued: October 5, 2015
Morris Park Congregation of :
Jehovah’s Witnesses, :
:
Appellant :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: March 7, 2016
Morris Park Congregation of Jehovah’s Witnesses (Appellant) appeals
the October 1, 2014 order of the Philadelphia County Court of Common Pleas
(Trial Court) denying Appellant’s Amended Motion to Redeem 6122 Lancaster
Avenue, Philadelphia, Pennsylvania (Property) and/or Set Aside the March 9, 2014
Sheriff’s sale of the Property conducted pursuant to the authority provided by the
Municipal Claims and Tax Lien Act1 (MCTLA) as a result of Appellant’s failure to
pay taxes to the City of Philadelphia (City). Concluding that service was not
perfected under the MCTLA, we reverse the order of the Trial Court.
Before this Court, Appellant argues inter alia that service by (i) first
class mail, (ii) certified mail, and (iii) posting prior to the Sheriff’s sale of the
Property was inadequate. Initially, the City argues that this Court is prohibited
1
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101-7505, 7193.2(c).
from reaching the issue of service because Appellant’s Amended Motion to
Redeem and/or Set Aside the Tax Sale was not timely filed.
On February 26, 2010, drawing upon funds from three Jehovah’s
Witnesses congregations, Appellant purchased the Property for consideration of
$282,500 with the intention of constructing a Kingdom Hall. The deed was
recorded on March 1, 2010. Following purchase of the Property, Appellant
cleaned the Property but left the Property vacant, occupied only by a garage and a
trailer surrounded by a chain link fence. By September 2013, Appellant had
accrued $9,219.61 in municipal tax debt to the City.2 On March 19, 2014, Finite
Developers, LLC purchased the Property at Sheriff’s sale for $71,000. Following
the sale, approximately $10,117.19 went to the City to satisfy Appellant’s
municipal tax debt, $7,863.57 to the Sheriff for costs, transfer taxes and water
charges, and $53,019.24 remained as the amount over bid. On May 22, 2014, the
Sheriff’s designee acknowledged Finite’s deed to the Property with his signature.
However, it was not until July 28, 2014 that the acknowledged deed was recorded
and received by the court, available to the public, and most importantly in this
instance, to Appellant. In the interim, on June 16, 2014, Appellant filed its Motion
to Redeem the Property.
In its June 16, 2014 Motion to Redeem, Appellant challenged service
under the MCTLA. While the motion was not properly titled as a motion to
2
Appellant requested copies of “[a]ll tax bills, including copies of letters, envelopes, return
receipt cards, United States Postal Service (“USPS”) receipts and documents related to the tax
bills for 6122 Lancaster Avenue, Philadelphia, PA 19151 (“Premises”) from 2011 to present.”
(Appellant’s Request for Production of Documents, R.R. at 329a.) The City filed an answer to
the request, which stated “[a]fter reasonable investigation, it has been determined that the City of
Philadelphia, Department of Revenue (the “City”) has no documents in its possession responsive
to the requests.” (Answer to Request for Documents, R.R. at 33a.) Presumably, the unproduced
tax bills were mailed to the vacant Property or to the address listed on the deed and, regardless of
the City’s ability to produce copies of Appellant’s tax bills, an owner of real property has
constructive notice that municipal taxes must be paid.
2
redeem and/or set aside the tax sale until Appellant filed its Amended Motion on
September 9, 2014, the Motion to Redeem clearly sought to redeem the Property
or, in the alternative, to set aside the tax sale.3 A motion to set aside must be filed
within three months of the acknowledgement of the deed to the premises by the
sheriff. Section 39.3 of the MCTLA, added by Act of December 14, 1993, P.L.
589, 53 P.S. § 7193.3. Appellant’s motion was filed within three months of the
Sheriff’s May 22, 2014 signature acknowledging the deed and prior to the
recording of the deed. Appellant’s motion was timely; the artless titling of
Appellant’s motion does not amount to waiver of its request to set aside the tax
sale.
The purpose of a sheriff’s sale under the MCTLA “is not to strip an
owner of his or her property but to collect municipal claims.” City of Philadelphia
v. Manu, 76 A.3d 601, 606 (Pa. Cmwlth. 2013); see also Fernandez v. Tax Claim
Bureau of Northampton County, 925 A.2d 207, 215 n.18 (Pa. Cmwlth. 2007)
(noting that the primary purpose of a taxing authority is to “insure payment of
taxes. Although selling of the property may end up being the ultimate means used
toward achieving that end, it is not the end itself.”). Section 39.2 of the MCTLA4
mandates strict service requirements that the City must follow for a court to gain
the jurisdiction necessary to authorize a sheriff’s sale, including service of the
petition and rule to show cause why the property should not be sold by “posting a
true and correct copy of the petition and rule on the most public part of the
property.” 53 P.S. § 7193.2(a)(1); City of Philadelphia v. Schaffer, 974 A.2d 509,
3
(See Motion to Redeem Property, ¶6 and Memorandum of Law at 9 (“Alternatively, Petitioner
asserts that it was not properly served under the [MCTLA] and thus the Court was without
jurisdiction”).)
4
Added by Act of December 14, 1993, P.L. 589.
3
512 (Pa. Cmwlth. 2009). Strict compliance with the service mandates of the
MCTLA protects the procedural due process rights of all parties involved by
guaranteeing that they receive notice and an opportunity to be heard and protects
an owner against deprivation of his or her property without substantive due process
of law. Manu, 76 A.3d at 606; First Union National Bank v. F.A. Realty Investors
Corp., 812 A.2d 719, 726 (Pa. Super. 2000); see also Tracy v. Chester County, Tax
Claim Bureau, 489 A.2d 1334, 1339 (Pa. 1985). A sheriff’s sale pursuant to the
MCTLA is conducted under the auspices of the court and it is the court’s duty to
conduct an independent inquiry to ensure that the MCTLA has been complied
with, and that the due process rights guaranteed by the Pennsylvania and United
States Constitutions are adequately safeguarded.5 U.S. National Bank Association
v. United Hands Community Land Trust, __ A.3d __, __ (Pa. Cmwlth No. 2237
C.D. 2014, filed December 15, 2015), 2015 WL 8718035, slip op. at 5; Manu, 76
A.3d at 606.
In the instant matter, the Trial Court concluded that the service
requirements of the MCTLA had been satisfied. (See Order, 10/1/14; Trial Court
Opinion at 3.) In its Rule 1925(a) opinion, the Trial Court specifically stated:
The City was merely required to serve Appellant with the Petition via
first-class mail at its registered address, as well as post the Petition
upon the most prominent spot at the Property. Appellant did both
of these things, posting at the Property on December 16, 2013…The
posting and multiple mailings established to this Court’s satisfaction
5
Article I, Section I of the Pennsylvania Constitution provides that “[a]ll men are born equally
free and independent, and have certain inherent and indefeasible rights, among which are those
of enjoying and defending life and liberty, of acquiring, possessing and protecting property and
reputation, and of pursuit of their own happiness.” Pa. Const. art. I, § 1. The 14th Amendment
to the United States Constitution provides, in pertinent part, “nor shall any state deprive any
person of life, liberty, or property, without due process of law....” U.S. Const. amend. XIV, § 1.
4
that Appellant had complied with the MCTLA’s service and notice
requirements.
(Trial Court Opinion at 6 (emphasis added).) The Trial Court’s conclusion is not
supported by the record. The affidavit of posting filed for the Property is
insufficient to satisfy the specific mandate of the MCTLA and, under the unique
facts of this case, violates Appellant’s right to due process of law.
The affidavit of posting identified the papers served as “Petition Rule
Returnable.” (Affidavit of Posting, Reproduced Record (R.R.) at 176a.) Under
various selections for the method of service, the affidavit has a check mark next to
the words “Property Posted.” (Id.) At the bottom of the affidavit, there is the
signature of the server, Lieutenant Herbert, attesting to the fact of service
accompanied by the date of his signature. (Id.) The document is otherwise bereft;
it does not include the date, time, or place of posting or any other information
concerning the Property or its posting. The record does not contain testimony from
Lieutenant Herbert.
This Court reviewed the origins and application of the presumption of
regularity to affidavits of service in U.S. National Bank Association, holding that
the presumption did not apply to the acts of private process servers and therefore
the testimony of the process server concerning his usual manner of posting, rather
than his specific posting of the property at issue, was insufficient to demonstrate
compliance with the MCTLA. Id. slip op. at 8. The presumption of regularity
establishes prima facie evidence that a public official acts regularly in accordance
with his or her official duties until evidence to the contrary appears. See 42 Pa.
C.S. § 6104(a); Hughes v. Chaplin, 132 A.2d 200, 202 (Pa. 1957). Under this
presumption, an affidavit of posting establishes that the actions disclosed therein
were in fact taken. U.S. National Bank Association, slip op at 8. In accordance
5
with the presumption of regularity, the affidavit of posting in the instant matter
establishes prima facie evidence that the Property was posted. However, under
Section 39.2 of the MCTLA, evidence of mere posting is insufficient.
Like Section 39.2 of the MCTLA, Section 602 of the Real Estate Tax
Sale Law6 (RETSL), addresses service by posting and requires that “each property
scheduled for sale shall be posted at least ten (10) days prior to sale.” 72 P.S. §
5860.602. Although the RETSL does not contain language that prescribes an exact
method or place of posting, due process requires that the method used “must be
reasonable and such as would likely inform the taxpayer of the intended sale of the
premises.” Thomas v. Montgomery County Tax Claim Bureau, 553 A.2d 1044,
1046 (Pa. Cmwlth. 1989) (holding that a sheriff’s affidavit stating the date and
time the property was posted was sufficient to give rise to the presumption of
regularity).
Relying upon the presumption of regularity, this Court held in Barylak
v. Montgomery County Tax Claim Bureau, 74 A.3d 414 (Pa. Cmwlth. 2013), that a
sheriff’s affidavit containing the date and time of posting was sufficient evidence
to establish proper posting under the RETSL, even though testimony in support of
the affidavit was offered by a compliance coordinator for the taxing authority
rather than the sheriff himself. Id. at 416-417. Similarly, in Picknick v.
Washington County Tax Claim Bureau, 936 A.2d 1209 (Pa. Cmwlth. 2007), this
Court held that an assessor’s affidavit containing the date and time of posting, as
well as photographs of the posted notice was sufficient to establish that service by
posting had been perfected under the RETSL, even though testimony in support of
6
Act of July 7, 1946, P.L. 1368, as amended, 72 P.S. §§ 5860.101-5860.803.
6
the affidavit was offered by an operations manager for the taxing authority rather
than the assessor himself. Id. at 1213.
The presumption of regularity is a procedural expedient that is
particularly suitable to tax sales, Thomas, 553 A.2d at 1046, but the presumption
afforded a public official cannot overcome a statutory mandate. Unlike the
RETSL, the statutory language in the MCTLA requires posting of “the petition and
rule on the most public part of the property.” 53 P.S. § 7193.2(a)(1) (emphasis
added). There is no evidence in the record that the petition and rule were posted
on the most public part of the Property. The record does not contain testimony
from the server or from the taxing authority elucidating the general practice the
Sheriff follows when posting properties under the MCTLA or specifically when
posting vacant properties. Even under Section 602 of the RETSL, which does not
specifically require posting on the most public part of the property, the
presumption of regularity has never been applied to establish valid posting where
an affidavit failed to include such basic information as the date and time of posting.
Accordingly, there is no credible evidence of record to support the conclusion that
the City complied with the posting requirement mandated by the MCTLA. U.S.
National Bank Association held that the presumption of regularity cannot be
applied to private individuals; the facts in this case demonstrate the limits of the
application of the presumption of regularity to public officials.
The facts in this case also demonstrate the importance of posting
where the taxing authority has knowledge that service has otherwise been
ineffective. Our Supreme Court has termed the sale of private property for non-
payment of taxes “a momentous event under the United States and Pennsylvania
Constitutions,” and while noting that the courts “hold no brief with willful,
persistent and long standing tax delinquents,” our Supreme Court has cautioned
7
that the collection of taxes may not be implemented without due process of law.
Tracy, 489 A.2d at 1339.
In addition to posting the Property, the MCTLA mandates service by:
(2) By mailing by first class mail to the address registered by any
interested party pursuant to section 39.1[7] of this act a true and
correct copy of the petition and rule; and
(3) By reviewing a title search, title insurance policy or tax
information certificate that identifies interested parties of record who
have not registered their addresses pursuant to section 39.1 of this act,
the city shall mail by first class mail and either by certified mail,
return receipt requested, or by registered mail to such addresses as
appear on the respective records relating to the premises a true and
correct copy of the petition and rule.
53 P.S. § 7193.2(a)(2)-(3). The City was unable to serve Appellant by first class
and certified mail.8 Appellant did not register a notice of interest with the City.
Although the deed identified Appellant as the owner of the Property, the address
listed for Appellant was the prior address of a church elder. Appellant failed to
provide the Office of the Recorder of Deeds with an updated address. The City
was likewise unable to serve Appellant by first class and certified mail at the
Property because the Property was vacant.
7
Section 39.1(a) defines a “notice of interest” and provides that “Any owner of real property
located within a city of the first class, any mortgagee thereof or any person having a lien or claim
thereon or interest therein shall register a notice of interest with the department of the city of
the first class responsible for collection of tax and municipal claims stating his name, residence
and mailing address and a description of the real property in which the person has an interest. A
notice of interest shall not be required for any mortgage or interest otherwise properly
recorded in the Office of the Recorder of Deeds provided the document contains a current
address sufficient to satisfy the notice requirements of this section. The interested party shall
file an amended registration as needed.” 53 P.S. § 7193.1(a) (emphasis added).
8
(See James J. Zwolak, Esquire Affidavit of Service, R.R. at 31a; Certified Mail receipts, R.R. at
171a, 225a-228a, 269a-272a.)
8
The City’s inability to perfect service by certified and first class mail
made compliance with the posting mandate of the MCTLA all the more important,
as did its knowledge that the Property was vacant. The City contends that this
Court should focus instead on Appellant’s failure to provide the Office of the
Recorder of Deeds with updated address information or to register a notice of
interest with the City Department of Revenue. Appellant argues that the City had
de facto notice of its current contact address through Appellant’s dealings with the
Water Department, the Office of Property Assessment and payments to the
Department of Revenue as a part of its development and storm water management
plans for the Property.
The MCTLA places an obligation upon the taxpayer to safeguard his
or her interests by registering updated contact information with the City. Appellant
failed to satisfy this obligation. The MCTLA does not require the City to search
through the records of each of its many Departments prior to initiating a Sheriff’s
sale to collect municipal taxes. Moreover, the record does not support Appellant’s
argument that the City had notice of the correct contact information for Appellant
and failed to act upon it. Although the receipts and letters Appellant relies upon in
support of its argument each reference the Property, the contact addresses,
individuals, and named organizations differ.9 Had the City searched the records of
its many Departments and discovered these records, there was no basis to conclude
which address was correct or that one of the many provided was more likely to
9
For example, the Development Site Plan correspondence with the Philadelphia Water
Department includes the Water Department’s tracking number for the Property but contains
contact information for “John Hopkins, PA#1 Regional Building Committee.” (R.R. at 273a-
306a.) Similarly, the check written to the Department of Revenue and the corresponding receipt
for payment to the Water Department reference the Property but contain contact information for
the “Wynnefeild Congregation of Jehovah’s Witness Bldg Fund.” (R.R. at 306a-307a.)
Correspondence regarding an Application for Exemption from Act 537 Planning for the Property
identifies yet another contact person, Mr. Maurice Duncan, and address. (R.R. at 308a.)
9
reach Appellant than the address on Appellant’s deed. However, this conclusion
does not obviate the need for the City to take real action to provide notice once it
has knowledge that service by mail was inadequate.
There is no dispute that the MCTLA provided Appellant with not only
an opportunity but an obligation to safeguard its interest in the Property, however,
the ability of Appellant “to take steps to safeguard its interests does not relieve the
[City] of its constitutional obligation.” Mennonite Board of Missions v. Adams,
462 U.S. 791, 799 (1983). The United States Supreme Court held in Jones v.
Flowers, 547 U.S. 220, 234 (2006), that the right to due process guaranteed by the
United States constitution requires that “when mailed notice of a tax sale is
returned unclaimed, the State must take additional reasonable steps to attempt to
provide notice to the property owner before selling his property, if it is practicable
to do so.” Id. at 225. In defining what is reasonable, the Court reaffirmed that the
government must “consider unique information about an intended recipient
regardless of whether a statutory scheme is reasonably calculated to provide notice
in the ordinary case,” and must give attention to the “practicalities and peculiarities
of the case” Id. at 230 (citing Mullane v. Central Hanover & Bank Trust Co., 339
U.S. 306, 314 (1950)); see also Robinson v. Hanrahan, 409 U.S. 38 (1972)
(holding that a notice of forfeiture sent to an owner’s home was inadequate when
the state had knowledge that the owner was in prison); Covey v Town of Somers,
351 U.S. 141 (1956) (holding that notice of foreclosure by mailing, posting and
publication was inadequate when the state had knowledge that the intended
recipient was incompetent and without a guardian); Tracy, 489 A.2d at 1338-1339
(holding that where a taxing authority intends to conduct a sale of real property
because of nonpayment of taxes and the mailed notice has not been delivered
10
because of an inaccurate address, the authority must make a reasonable effort to
ascertain the identity and whereabouts of the owner.).
Each of the notices the City attempted to serve Appellant by mail are
marked unclaimed or undeliverable.10 Like the state in Jones, the City had
knowledge prior to the tax sale that notice had not reached Appellant by mail. 547
U.S. at 231. Like the state in Jones, the City did not take additional reasonable
steps to attempt to provide notice to Appellant. Id. at 234. While Appellant’s
argument that the City should have searched the records of each of its Departments
in an attempt to provide Appellant with notice is unpersuasive on this record, the
City had less onerous options available to it once it had knowledge that notice had
not reached Appellant by mail. In Jones, while declining to prescribe specific
forms of service a state should adopt, the Court identified posting as one of the
additional reasonable steps the state could have taken once it had knowledge that
service through the mail was ineffective.11 Id. at 236. In a first class city in this
Commonwealth, proper posting is not only an additional reasonable step that
10
(See Certified Mail Receipts, R.R. at 171a, 269a-272a.)
11
Other reasonable steps identified by the Court in Jones that the taxing authority could have
taken once it was aware that service through the mail was undeliverable include posting the front
door of the last known address or sending notice addressed simply to “occupant.” Id. at 234-235.
Under the unique facts of this case, St. George Antiochian Christian Church v. Aggarwal, 603
A.2d 484 (Md. 1992), which concerns the sale of property owned by a church to recoup back
taxes, is particularly instructive regarding additional reasonable steps a taxing authority could
take to provide notice. In St. George, the property at issue was vacant, the deed to the property
did not contain the correct address for the church, and notice of the tax sale had been sent
through the mail and returned as undeliverable. Id. at 485, 488. The Maryland Court of Appeals
held that, having learned service through the mail to the address on the deed was undeliverable,
an additional reasonable step would have been to contact the title company that handled transfer
of the property to the church only a few years before, whose contact information, as in the instant
matter, was readily available from the face of the deed. Id. at 491. In Fernandez, this Court
addressed what constitutes a reasonable investigation under the RETSL, defining a reasonable
investigation as “one that uses ordinary common sense business practices to ascertain proper
addresses.” Fernandez, 925 A.2d at 213 (internal citations omitted).
11
should be taken to adequately safeguard constitutional due process once a
municipal authority has knowledge that service through the mail was ineffective,
but a basic and longstanding statutory obligation.
There is no overestimating the great challenges facing the City in its
efforts to collect municipal taxes. In recognition of that challenge, the City was
granted the power to take private property, a power so extraordinary under our
system of governance that it is constitutionally restrained. In accordance with this
constitutional restraint, the General Assembly established strict procedural
requirements that a municipality must follow to exercise its power to take private
property from one and sell it to another. The momentous nature of the act of
taking property from one and selling it to another to collect municipal taxes
likewise requires the courts to examine the record in a sheriff’s sale with a close,
independent and vigorous eye to ensure that the procedural requirements for notice
of the sale have been adhered to and due process of law has been adequately
safeguarded. The Trial Court had a duty to conduct an independent inquiry to
ascertain if the City had fulfilled its statutory and constitutional obligations; by
failing to do so here, the Trial Court abused its discretion, and by relying on facts
not in evidence, the Trial Court erred as a matter of law in concluding that it gained
jurisdiction to authorize the sale of the Property for the collection of municipal
taxes.
Accordingly, the order of the Trial Court is reversed and the tax sale is
set aside.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
:
v. : No. 264 C.D. 2015
:
Morris Park Congregation of :
Jehovah’s Witnesses, :
:
Appellant :
ORDER
AND NOW this 7th day of March, 2016, the order of the Philadelphia
County Court of Common Pleas in the above-captioned matter is REVERSED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge