In Re: TCB's Sales of Real Estate for Unpaid Taxes Levied for the Year 2018

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Tax Claim Bureau’s Sales of :
Real Estate for Unpaid Taxes Levied :
for the Year 2018 :
:
Daniel R. Clark and Victoria Clark : No. 598 C.D. 2021
Bolger trading as Split Rock Family : Argued: December 12, 2022
Partnership, :
Appellants :
v. :
:
County of Carbon, Tax Claim Bureau :
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: February 22, 2023
Daniel R. Clark (Clark) and Victoria Clark Bolger (Bolger) trading as Split
Rock Family Partnership (Split Rock) appeal from the Carbon County Court of
Common Pleas’ (trial court) May 17, 2021 order (Order) overruling their objections
and exceptions to upset tax sale (Objections and Exceptions) and refusing to set aside
the tax sale of property located at 18 Birchwood Drive, Lake Harmony, Pennsylvania
(Property). For the following reasons, we reverse.
I. BACKGROUND
On September 15, 2020, the Carbon County Tax Claim Bureau (Bureau) held
an upset tax sale for the Property as a result of delinquent property taxes (tax sale).
Trial Ct. Op. at 1-2. At the time of the tax sale, the record title owner of the Property
was Split Rock. Id. at 2. Christian Fehrenbacher (Purchaser) was the successful
bidder at the tax sale and purchased the Property for $45,000.00. Id.
On November 9, 2020, Clark and Bolger trading as Split Rock filed their
Objections and Exceptions, asserting the Bureau failed to comply with the Real
Estate Tax Sale Law’s (Tax Law)1 notice requirements. Id. Purchaser filed a motion
to intervene in the objection proceedings, which the trial court granted. Id.
Additionally, Purchaser and the Bureau both filed Answers to Clark and Bolger’s
Objections and Exceptions and raised challenges to the existence and validity of
Split Rock as a partnership. Id. at 3. In January 2021, the trial court held a hearing
on the Objections and Exceptions. Id. at 2.
At the hearing, Clark and Bolger testified on behalf of Split Rock. Id. Bolger
testified she and Clark were the only general partners of Split Rock, but the trial
court noted that neither Bolger nor Clark produced any documentation supporting
the existence or creation of the partnership. Id. at 3. Bolger testified she was not
aware of whether any fictitious name registration was ever filed or whether any
income tax filings were ever submitted for Split Rock. Id. Similarly, Clark testified
he did not know if Split Rock was registered or whether taxes were paid by Split
Rock. Id.
Bolger testified she previously resided at 18 Miles Road, Darien, Connecticut
(Connecticut Address) and claimed not to know Split Rock’s real estate tax bills
were being sent there. Id. at 4. However, as the trial court noted, she also testified
that if those tax bills were sent to that address while she lived there, she would have
made sure they were paid or sent to her father for payment. Id. Bolger testified she
1
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101-5860.803.
2
moved from the Connecticut Address to New Jersey in June 2017, and claimed she
completed a change of address form with the United States Postal Service (U.S.
Postal Service), but she did not indicate whether she changed the certified address
for the Property with anyone, including the tax collector or tax assessment office.
Id. at 5. Bolger was also unaware of whether a forwarding address was ever
provided for the Property. Id.
The Bureau Director testified that the Bureau sent all notices regarding the tax
sale to the address on file for Split Rock, which was the Connecticut Address. Id. at
6. On April 1, 2019, the Bureau sent a Notice of Return and Claim (First Notice of
Return and Claim) for unpaid 2018 real estate taxes to Split Rock at the Connecticut
Address by certified mail. Id. at 6. The U.S. Postal Service returned the First Notice
of Return and Claim with the notation “wrong address” and a postal sticker noting
“return to sender, not deliverable as addressed, unable to forward.” Id. at 7.
After receiving the First Notice of Return and Claim back, the Bureau Director
researched files in the Bureau, the tax assessment office, and with the recorder of
deeds in an attempt to locate another address for Split Rock but was unsuccessful.
Id. On July 11, 2019, the Bureau had a Notice of Return and Claim (First Posted
Notice) for the unpaid 2018 real estate taxes posted to the Property. Id. at 7. On
May 1, 2020, the Bureau sent a Notice of Return and Claim (Second Notice of Return
and Claim) to Split Rock at the Connecticut Address for unpaid 2019 real estate
taxes. Id. at 8. The Second Notice of Return and Claim was not returned to the
Bureau and was received at the Connecticut Address on May 22, 2020. Id. The
signature on the U.S. Postal Service return receipt appears to read “Split” with
additional writing underneath. See Reproduced Record (R.R) at 41a.
3
On June 3, 2020, the Bureau sent a Notice of Public Tax Sale (First Notice of
Public Sale) to Split Rock at the Connecticut Address advising that unless it paid
$1,481.43, the Property would be sold at a public sale on September 15, 2020. Id.
at 8. This notice was received at the Connecticut Address on June 12, 2020. Id. The
signature on the U.S. Postal Service return receipt was illegible. Id. at 44a. On July
8, 2020, the Bureau had a Notice of Public Sale posted on the Property. Id. at 9.
On August 17, 2020, the Bureau sent another Notice of Public Tax Sale
(Second Notice of Public Sale) to Split Rock at the Connecticut Address. Id. at 9.
The U.S. Postal Service returned this mailing to the Bureau on August 26, 2020,
with a label affixed to it indicating “return to sender, not deliverable as addressed,
unable to forward.” Id. at 10.
The Bureau held the Tax Sale on September 15, 2020, and afterwards, made
a consolidated return to the trial court. Id. at 10. Clark and Bolger both testified
they did not see any of the notices or sign for any certified mail. Id. at 6.
Additionally, Bolger testified she never authorized anyone at the Connecticut
Address to sign for any notices after she moved to New Jersey. Id. Further, Bolger
testified she never received the consolidated return and Clark testified he only knew
the Property was sold because a handyman notified him the locks to the house were
changed. Id. at 10.
On May 17, 2021, the trial court issued its order overruling and dismissing
Clark and Bolger’s Objections and Exceptions. First, the trial court concluded Clark
and Bolger, trading as Split Rock, lacked standing to raise objections to the loss of
the Property because Split Rock was the title owner of the Property and Split Rock
is a “fictitious name devoid of any proper names to identify its partners.” Trial Ct.
Op. at 15. As such, the trial court concluded that because Split Rock is an
4
unregistered general partnership and an unregistered fictitious name, Split Rock
lacked standing to file the Objections and Exceptions.
Notwithstanding the trial court’s conclusion that Split Rock lacked standing,
the trial court went on to address the merits of the case. The trial court concluded
the Bureau’s notices were adequate and complied with the Tax Law’s notice
requirements. Additionally, the trial court considered the Bureau Director’s
testimony that after the U.S. Postal Service returned the First Notice of Return and
Claim, she researched files in the Bureau, the tax assessment office, and with the
recorder of deeds to attempt to locate another address for Split Rock. Id. at 26. The
trial court indicated that because two of the notices were accepted and signed for at
the Connecticut Address, the Bureau did not need to take additional notification
efforts. Id. at 27. The trial court concluded the Bureau met its burden regarding the
Tax Law’s notice requirements before the sale of the Property and, as such, overruled
and dismissed Clark and Bolger’s Objections and Exceptions.
Issues on Appeal2
Clark and Bolger raise several issues on appeal. First, Clark and Bolger assert
the trial court erred in finding that they lacked standing because Split Rock was not
required to register under the Fictitious Names Act,3 the Fictious Names Act does
not apply to petitions to set aside a tax sale, and the Bureau and Purchaser waived
the issue of standing. Second, they assert the trial court committed reversible error
when it found the Bureau strictly complied with the Tax Law. Third, they assert the
trial court erred when it ruled that the Bureau was excused from complying with the
2
Clark and Bolger raise 10 issues in their Statement of Questions Involved. For ease of
disposition, we have consolidated and reframed the issues.
3
54 Pa. C.S. §§ 301-332.
5
additional notice requirements of the Tax Law. Fourth, they contend the trial court
erred in refusing to set aside the sale because the Bureau failed to memorialize its
efforts to locate Clark and Bolger. Finally, they assert the trial court erred in finding
that the Bureau properly posted the property.
In response, Purchaser argues the trial court exercised proper discretion in
determining the Bureau and Purchaser adequately raised the issue of standing.
Additionally, he contends the trial court properly determined that Clark and Bolger
lacked standing to challenge the tax sale as a partnership operating as an unregistered
fictitious name. Next, Purchaser asserts evidence adequately supported the trial
court’s determination that the Bureau complied with the notice requirements of the
Tax Law and that in light of the information known at the time to the Bureau, the
Bureau made a reasonable effort to determine the owner of record and ascertain a
proper address for Split Rock. Finally, Purchaser asserts evidence adequately
supported the trial court’s determination that the Bureau complied with the Tax
Law’s posting requirements.4
II. DISCUSSION
Our standard of 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
without supporting evidence. Rice v. Compro Distrib., Inc., 901 A.2d 570, 574 (Pa.
Cmwlth. 2006). An abuse of discretion exists where a trial court “has rendered a
judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply
the law, or was motivated by partiality, prejudice, bias, or ill will.” Harman ex rel.
Harman v. Borah, 756 A.2d 1116, 1123-24 (Pa. 2000). Further, a trial court abuses
its discretion where its findings are not supported by substantial evidence of record.
4
The Bureau adopted Purchaser’s brief. See Appellee Carbon County Tax Claim Bureau’s
Adoption of Brief of Intervenor, Christian Fehrenbacher, dated July 13, 2022.
6
I.B.P.O.E. of W. Mount Vernon Lodge 151 v. Pa. Liquor Control Bd., 969 A.2d 642,
649 (Pa. Cmwlth. 2009). An error of law is a misinterpretation or misapplication of
the law. Harman ex rel. Harman, 756 A.2d at 1123; City of Phila. v. Fraternal
Order of Police, Lodge No. 5, 558 A.2d 163, 164 (Pa. Cmwlth. 1989).
Standing
We begin by addressing the issue of standing. The trial court overruled and
dismissed Split Rock’s Objections and Exceptions holding the Objections and
Exceptions were an action brought at a time when Clark and Bolger, who were
trading under the fictitious name Split Rock, had not yet registered that name under
the Fictitious Names Act and, therefore, Split Rock lacked standing to bring the
action in court. Trial Ct. Op. at 16-17. Clark and Bolger assert that the trial court
erred in its determination that Clark, Bolger, and Split Rock lacked standing.
Specifically, Clark and Bolger assert (1) they were not required to register Split Rock
under the Fictitious Names Act, (2) the Fictitious Names Act does not apply to
petitions to set aside a tax sale, and (3) the Bureau and Purchaser waived the issue
of standing. In response, Purchaser argues the trial court properly deemed Clark and
Bolger’s Objections and Exceptions an “action” as set forth in the statute because
the matter was given a specific civil docket number and was set forth as a petition
with a request for relief. Purchaser’s Br. at 20. Additionally, Purchaser asserts the
trial court properly determined that based upon the failure of Clark and Bolger to
register Split Rock as a fictitious name, in violation of 54 Pa. C.S. § 331(a), they
lacked standing to challenge the tax sale on behalf of Split Rock. Purchaser’s Br. at
19.
The doctrine of standing is a judicially created principle designed to weed out
litigants who have no direct interest in a matter. Off. of the Governor v. Donahue,
7
98 A.3d 1223, 1229 (Pa. 2014). The “core concept of the doctrine of standing is that
a person who is not adversely affected in any way by the matter he seeks to challenge
. . . has no right to obtain a judicial resolution of his challenge.” In re T.J., 739 A.2d
478, 481 (Pa. 1999). In Pennsylvania, standing is not a jurisdictional issue because
an issue related to standing is waivable. In Re Est. of Brown, 30 A.3d 1200, 1204
(Pa. Super. 2011).
First, we consider whether the trial court erred in its determination that Clark
and Bolger were required to register Split Rock under the Fictitious Names Act.
Clark and Bolger assert Split Rock was not required to register itself with the
Commonwealth because it is a general partnership and, under 15 Pa. C.S. §§ 8422(a)
and 8621,5 only a limited partnership is required to register. However, Clark and
Bolger’s reliance on these sections is misplaced. The issue is not whether Clark and
Bolger were required to register in order to form a general partnership. Rather, the
issue is whether they were required to register the general partnership’s name, Split
Rock, under the Fictious Names Act in order for Split Rock to maintain an action in
court.
Under Pennsylvania’s Fictitious Names Act, “[n]o entity which has failed to
register a fictitious name by this chapter shall be permitted to maintain any action in
any tribunal of this Commonwealth until such entity shall have complied with the
provisions” of the Fictitious Names Act. 54 Pa. C.S. § 331(a). A “fictious name”
under the Act is “[a]ny assumed or fictitious name, style or designation other than
the proper name of the entity using such name. The term includes a name assumed
5
According to 15 Pa. C.S. § 8422, “[e]xcept as provided in subsection (b), the association of two
or more persons to carry on as co-owners [of] a business for profit forms a partnership, whether or
not the persons intend to form a partnership.” Under 15 Pa. C.S. § 8621, in order “[t]o form a
limited partnership, a person must deliver a certificate of limited partnership to the department for
filing.”
8
by a general partnership, syndicate, joint adventureship or similar combination or
group of persons.” Id. at § 302. The purpose of the Fictitious Names Act is to protect
people who give credit in reliance on the fictitious name and to establish the
identities of those owning a business. Lamb v. Condon, 120 A. 546 (Pa. 1923).
Here, Clark and Bolger assumed the fictitious name of Split Rock for their
general partnership. Split Rock is neither Clark nor Bolger’s proper name and is,
therefore, a fictious name. The statute is clear that before an entity which has failed
to register a fictitious name is permitted to “maintain any action in any tribunal of
this Commonwealth,” the entity must register its name under the Act. However, in
Battisti v. Tax Claim Bureau of Beaver County, 76 A.3d 111, 115 (Pa. Cmwlth.
2013), this Court concluded that objections and a petition to set aside tax sale do not
constitute a civil action or pleading under the Pennsylvania Rules of Civil Procedure.
Therefore, Clark and Bolger’s Objections and Exceptions does not constitute an
action and the Fictitious Names Act does not apply and does not bar Clark and
Bolger, trading as Split Rock, from having standing. Therefore, the trial court erred
in its determination that Clark, Bolger, and Split Rock lacked standing due to their
failure to register Split Rock under the Fictitious Names Act. Clark and Bolger, with
ownership interest in the Property, have a direct interest in this matter and, as such,
had standing to file the Objections and Exceptions.6
Notice
Next, we consider whether the trial court erred in its determination that the
Bureau complied with the notice requirements of the Tax Law. Clark and Bolger
argue the Bureau failed to strictly comply with the Tax Law. Specifically, Clark and
6
Because we conclude Clark and Bolger, as having an ownership interest in the Property, had
standing to file the Objections and Exceptions, we need not address Split Rock’s assertion that the
Bureau and Purchaser waived the issue of standing.
9
Bolger assert the Tax Law requires that when mail is returned as undeliverable or
returned under circumstances raising doubt that the taxpayer received the notice, the
Tax Law requires an authority to take additional reasonable efforts to locate the
taxpayer. Additionally, Clark and Bolger assert the Bureau failed to properly
memorialize its efforts to locate the taxpayers as required by the Tax Law. Finally,
Clark and Bolger assert the Bureau failed to properly post the property as required
by the Tax Law.
In response, Purchaser argues the Bureau satisfied the Tax Law’s notice
requirements. Purchaser asserts the evidence the Bureau presented clearly
demonstrates that required notices were properly mailed to Split Rock at the only
known address for Split Rock. Additionally, despite the First Notice of Return and
Claim having been returned to the Bureau, the Bureau received a signed return
receipt that a later notice had been accepted at the Connecticut Address on behalf of
Split Rock. Regarding the efforts taken by the Bureau to locate Split Rock,
Purchaser asserts reasonableness should be determined based upon the information
available to the Bureau at the time. Purchaser points out that the Tax Law does not
require the Bureau to notify anyone not of record with an interest in the property,
and therefore, the Bureau’s duty to search for correct names and addresses of owners
is limited to owners of record as defined by the Tax Law.
In considering the parties’ arguments regarding the Bureau’s compliance with
the Tax Law, we are mindful that the purpose of the Tax Law is to ensure the
collection of taxes, not to deprive citizens of their property. In re Sale of Real Est.
by Lackawanna Cnty. Tax Claim Bureau, 255 A.3d 619, 627-28 (Pa. Cmwlth. 2021).
Due process concerns are implicated in tax sale cases because “[i]t is a fundamental
provision of both our state and federal constitutions that no person shall be deprived
10
of property except by the law of the land or due process of law[.]” Id. (quoting Hess
v. Westerwick, 76 A.2d 745, 748 (Pa. 1950)). Due process requires, at a minimum,
that a tax claim bureau notify an owner before his or her property is sold at an upset
tax sale. In re Tax Claim Bureau of Schuylkill Cnty. Sale of Sept. 29, 2000, 798 A.2d
845, 849-50 (Pa. Cmwlth. 2002). Thus, when exceptions are filed to a tax sale, the
burden is on a tax claim bureau to prove compliance with the Tax Law’s notice
requirements. In re 2005 Sale of Real Est. by Clinton Cnty. Tax Claim Bureau
Delinq. Taxes, 915 A.2d 719, 723 (Pa. Cmwlth. 2007).
Section 602 of the Tax Law, 72 P.S. § 5860.602, governs notice of sale and
requires a tax claim bureau to provide three types of notice for a tax sale to be valid:
published notice at least 30 days before the sale, mailed notice by certified first-class
mail, and posted notice. See In Re Tax Sales by Tax Claim Bureau of Dauph. Cnty.,
651 A.2d 1157, 1158 (Pa. Cmwlth. 1994). Relevant here are the provisions
governing mailed notice and posted notice, which provide:
(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.
11
(3) Each property scheduled for sale shall be posted at least ten (10)
days prior to the sale.
72 P.S. § 5860.602.
Section 102 of the Tax Law, 72 P.S. § 5860.102, defines “owner” in relevant
part as: “the person in whose name the property is last registered, if registered
according to law, or, if not registered according to law, the person whose name last
appears as an owner of record on any deed or instrument of conveyance recorded in
the county office designated for recording[.]” Although the Tax Law does not
specifically define “person,” the Statutory Construction Act of 1972 defines
“person” to include a corporation, partnership, and association, as well as a natural
person. 1 Pa. C.S. § 1991.
Under the Uniform Partnership Act,7 a general partnership can hold title to
real property in its own name. 15 Pa. C.S. § 8313(c). Therefore, where a general
partnership is the only owner of property listed in a bureau’s tax records and the
recorded deed, it is the general partnership that is entitled to notice, rather than any
individual partners. FS Partners v. York Cnty. Tax Claim Bureau, 132 A.3d 577,
582 (Pa. Cmwlth. 2016); see Krumbine v. Lebanon Cnty. Tax Claim Bureau, 663
A.2d 158, 160 (Pa. 1995) (holding that only the “grantees listed on the conveyance
document . . . could have been the ‘owner(s)’ of the property to whom the Tax
Bureau was required to send certified mail notice of the tax sale”). Further, the
Uniform Partnership Act provides that notice to any partner in a general partnership
concerning partnership affairs operates, absent fraud by a partner, as sufficient notice
to the partnership. 15 Pa. C.S. § 8324.
Accordingly, as Split Rock is the “person in whose name the property is last
registered” or “person whose name last appears as an owner of record,” Section 102
7
15 Pa. C.S. §§ 8301-8365.
12
of the Tax Law, 72 P.S. § 5860.102, Split Rock is the owner under the Tax Law,
which was entitled to certified mail notice. Thus, we must consider whether the
Bureau’s actions sufficiently complied with the Tax Law’s notice requirements
regarding its notice to Split Rock. We note that the Tax Law requires a bureau to
prove that it made reasonable, but not necessarily extraordinary efforts to provide
notice. Clinton Cnty., 915 A.2d at 723.
The General Assembly has established what notice is reasonably required
before selling property at a tax sale via the Tax Law. The Tax Law’s notice
requirements are mandatory and must be strictly construed. Lackawanna Cnty., 255
A.3d at 627-28. One of a bureau’s mandatory requirements is its obligation to make
reasonable efforts to find an owner pursuant to Section 607.18 of the Tax Law when
mailed notice is returned or when doubt exists that the owner received mailed
notice. Section 607.1 of the Tax Law states:
(a) When any notification of a pending tax sale or a tax sale subject
to court confirmation is required to be mailed to any owner,
mortgagee, lienholder or other person or entity whose property interests
are likely to be significantly affected by such tax sale, 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 bureau must exercise
reasonable efforts to discover the whereabouts of such person or
entity and notify him. The bureau’s efforts shall include, 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
8
Section 607.1 of the Tax Law was added by the Act of July 3, 1986, P.L. 351, 72 P.S. § 5860.607a.
13
successful, a notation 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 this
act.
(b) The notification efforts required by subsection (a) shall be in
addition to any other notice requirements imposed by this act.
72 P.S. § 5860.607 (emphasis added). Where a tax claim bureau fails to strictly
comply with the notice provision, an owner is deprived of property without due
process. Lackawanna Cnty., 255 A.3d at 628.
In Tracy v. County of Chester, Tax Claim Bureau, 489 A.2d 1334, 1339 (Pa.
1985), our Supreme Court pointed out,
[s]omehow, over the years, the taxing authorities have lost sight of the
fact that it is a momentous event under the United States and the
Pennsylvania Constitutions when a government subjects a citizen’s
property to forfeiture for the non-payment of taxes . . . [Thus, the]
collection of taxes . . . may not be implemented without due process of
law that is guaranteed in the Commonwealth and federal constitutions;
and this due process . . . requires at a minimum that an owner of land
be actually notified by the government, if reasonably possible, before
his land is forfeited by the state.
Id. at 1339. Due process requires a tax claim bureau to conduct a reasonable
investigation to ascertain the identity and whereabouts of the last owners of record
of property subject to an upset tax sale for the purposes of providing notice to that
party. Schuylkill Cnty., 798 A.2d at 849. A tax claim bureau’s duty to investigate
includes determining the owners of record and then using “ordinary common sense
business practices to ascertain proper addresses where notice of the tax sale may be
given.” Id. (citation omitted). A tax claim bureau must go beyond “the mere
ceremonial act of notice by certified mail” where notice is obviously not effectively
reaching the owners of the property. Id. (citation omitted).
14
Under the Tax Law, reasonable efforts to ascertain a property owner’s
whereabouts include a search of dockets and indices of the county tax assessment
offices, recorder of deeds, prothonotary’s office, and contacts to any apparent
alternate address which may have been written on or in the file pertinent to the
property at issue. Id. In In re Tax Claim Bureau of Beaver County Tax Sale
September 10, 1990, 600 A.2d 650, 654 (Pa. Cmwlth. 1991), this Court indicated
that where the tax claim bureau had the name of the property owner’s attorney in its
file, the tax claim bureau “could have easily notified [the property owner] directly
or indirectly through her attorney.” In failing to contact the property owner’s
attorney, among other things, we concluded the tax claim bureau’s efforts to notify
the property owner of the tax sale “were not reasonable as envisioned under the Tax
Law.” Id. at 654.
Here, the Property was owned by Split Rock and the deed did not list the
names or contact information for the individual partners. The Bureau sent the First
Notice of Return and Claim, which was returned. Once the First Notice of Return
and Claim was returned, the Bureau was obligated to take reasonable efforts to
ascertain the owner’s address to ensure notice. In an attempt to fulfill this
requirement, the Bureau Director tried to locate an additional address or contact
information for Split Rock by researching files in the Bureau, the tax assessment
office, and with the recorder of deeds. Purchaser argues these actions fulfilled the
Bureau’s requirements. We cannot agree.
Our review of the record leads us to conclude that the Bureau did not make
reasonable efforts to locate Split Rock’s whereabouts. When the first certified
mailing to the Connecticut Address was returned undelivered, the Bureau was put
on notice that the Connecticut Address was not Split Rock’s correct address.
15
Purchaser asserts the Bureau’s reasonableness should be determined based upon the
information available to the Bureau at the time. Our review of the record, however,
reveals that the Bureau had information available to it that it failed to pursue. This
included the deed to the Property, which contained three leads: identification of a
law firm; a relationship between the grantor and the grantee such that it is irrelevant
whether the law firm represented grantor, grantee, or both; and identification of a
public notary.
The deed indicates Split Rock is the grantee, with the document to be returned
to “Gerstein Grayson & Cohen LLP, 1288 Route 73 South, Suite 301, Mount Laurel,
NJ,” presumably grantee’s attorney. R.R. at 204a. Even if the Bureau Director was
not familiar with the common practice of grantee’s attorney being listed as the person
to whom the document should be returned, the last page of the deed also indicates,
“[t]he purpose of this Deed is to transfer the property from the Estate of Dominick
Vittese to a beneficiary of the Estate,” and the deed is signed by “Lisa Clark,
Executrix of the Estate of Dominick Vittese.” Id. at 207a. The attorney’s contact
information alone is sufficient to find that the Bureau failed to make reasonable
efforts, but additionally, the deed indicates a relationship between the grantor and
the grantee. While a deed return is typically delivered to a grantee’s counsel, we
note the footer of each page of the deed references “estate administration,” which
indicates the deed was drafted by the grantor’s counsel. Accordingly, even if the
Bureau Director did not think the attorney listed was the owner’s attorney, but rather
thought it was the grantor’s attorney, the Bureau still should have contacted the firm
because the estate’s (grantor’s) attorney knew the property was being transferred
from “the Estate . . . to a beneficiary of the Estate.” Id.16
Finally, and keeping in mind that per the plain language of the deed, the
Executrix was transferring the property to a beneficiary of the Estate, the deed also
bore contact information for Kathryn A. Sclar, Notary Public, County of Burlington,
New Jersey, who acknowledged the Executor’s signature. Id. While it is true the
public notary was linked to the grantor, not the grantee, the deed tells us the grantor
and grantee were linked. Because the Bureau had access to the deed with this
information, the Bureau could have easily reached out to the law firm or the public
notary to attempt to identify Split Rock’s partners or ascertain an alternative address.
This information was readily available to the Bureau, and the Bureau failed to take
these reasonable steps to ensure Split Rock received notice. Accordingly, the
Bureau’s efforts to notify Split Rock were not reasonable as envisioned under the
Tax Law.9
III. CONCLUSION
The trial court committed an error of law when it held Split Rock did not have
standing. Furthermore, the trial court abused its discretion when it concluded the
two notices were reasonable and that additional efforts were not required.
Significant doubt exists as to whether Split Rock actually received notice. This is
why the Bureau’s Director undertook additional efforts to discover the whereabouts
of the owner, but those efforts fell short of being reasonable as the efforts did not
include contacting the law firm whose name was clearly visible on the deed, which
was located in the recorder of deeds. Accordingly, we reverse.
______________________________
STACY WALLACE, Judge
9
Because we conclude the trial court erred in finding the Bureau took reasonable efforts to put
Split Rock on notice, we need not address Split Rock’s remaining issues.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Tax Claim Bureau’s Sales of :
Real Estate for Unpaid Taxes Levied :
for the Year 2018 :
:
Daniel R. Clark and Victoria Clark : No. 598 C.D. 2021
Bolger trading as Split Rock Family :
Partnership, :
Appellants :
v. :
:
County of Carbon, Tax Claim Bureau :
ORDER
AND NOW, this 22nd day of February 2023, the May 17, 2021 order of
the Carbon County Court of Common Pleas is REVERSED.
______________________________
STACY WALLACE, Judge