In the Matter of the Report and Return of C.L. Krzysiak, Director of the Crawford County TCB of the Public Sale of Lands and Properties, Advertised to be held the 25th Day of September, 2015 Appeal of: D. Bubna

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In the Matter of the Report and Return :
of Christine L. Krzysiak, Director of :
the Crawford County Tax Claim : No. 545 C.D. 2016
Bureau of the Public Sale of Lands :
and Properties, Advertised to be held : Argued: November 14, 2016
the 25th Day of September, 2015 :
:
Appeal of: Denis Bubna :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE McCULLOUGH FILED: December 7, 2016
Denis Bubna (Appellant) appeals from the March 8, 2016 order of the
Crawford County Court of Common Pleas (trial court) denying his petition to set
aside an upset tax sale.
Facts and Procedural History
Appellant was the owner of a parcel located in Greenwood Township
containing 8.58 acres of land, a building, a trailer, and bearing tax map number 2704-
041 (Parcel 41 or the property). On September 25, 2015, Parcel 41 was sold at an
upset tax sale for failure to pay real estate taxes and a decree nisi was entered on
October 13, 2015, confirming the sale. Appellant filed timely objections and
exceptions to the sale, arguing that the Crawford County Tax Claim Bureau (Bureau)
failed to meet its burden of proving strict compliance with all statutory notice
requirements because the posted notice was not reasonably secured and he did not
have actual notice of the upset sale. A hearing on Appellant’s petition to set aside the
sale was conducted on February 26, 2016.
Gerald Atkinson (Atkinson), an employee of Palmetto Posting, which
handles posting of tax sale notices for Crawford County, testified that he was posting
tax sale notices in Crawford County on August 28, 2015, and explained that, on that
date, he arrived at Parcel 41 and observed what he thought was an old elementary
school. According to Atkinson, the grass at the property was not well maintained, the
business appeared to be closed, and there was a wooden business sign located
adjacent to a public road. He further explained that he believed the most conspicuous
place to post the notice would be on the business sign because it would be observable
to anybody coming onto the property, as well as from the road. (Reproduced Record
(R.R.) at 23a-25a.)
Atkinson noted that, after he posted the notice on the property and
photographed the same, he generated a field report. Atkinson explained that, to
generate a field report, he takes an image of the property he is posting, performs a
series of checklists, and sends the report to Palmetto Posting’s system, where the
property being posted is reviewed to certify that it is the correct property. He
explained that, when generating a field report for Parcel 41, he placed the notice on
the business sign, retreated twenty to thirty feet, and took an image that captured the
front of the building in its entirety. Atkinson stated that the business sign faced the
public road and would have been visible to anybody driving or walking by the
property. He also stated that the paper he used to post the notice was “a carbon-type
paper. That’s – it’s fairly thick. Probably four to five times thicker than your average
2
typing paper so-to-speak. But it’s a carbon-type paper” and was “[v]ery much more
durable than a regular piece of paper.” (R.R. at 27a-28a.)
According to Atkinson, he uses a routine procedure when posting tax
sale notices and explained that he: confirms the address is correct; identifies the
property; determines whether personal service is required, i.e., whether the property
is commercial or residential; ensures the notice is posted; takes a photograph of the
notice and property; submits the field report to the system; and confirms the system
received the same. Atkinson stated that he could not recall whether he used staples to
secure the notice, but testified that he “used tape on the top and bottom and the type
of tape I used is 3M, very adhesive, very sticky. . . . [I]t’s good quality tape that we
use.” (R.R. at 29a.) He also stated that there were no unusual weather conditions on
the date he posted the notice at Parcel 41, that this is the first time he has received a
complaint regarding a posting not being secured since 2006, and that he performs
over 3,000 postings per year. (R.R. at 28a-29a.)
James Lynn (Lynn) testified that he resides beside Parcel 41. He stated
that he mows Appellant’s yard approximately once a week during the summer
months and can see Parcel 41 from his property. Lynn explained that the property
was previously used as an elementary school and that he is familiar with the business
sign located at the front of the parcel; the business sign is close to the road and the
building is approximately one-hundred feet from the sign. He testified that he never
saw anything posted on the business sign when he mowed Appellant’s yard and that
he would have informed Appellant if he had. Lynn further testified that he travels
past the sign every Wednesday on his way to Conneaut Lake and never saw anything
posted. According to Lynn, a lot of truck traffic traverses the road in front of Parcel
41. (R.R. at 34a-42a.)
3
Ryan Hays (Hays) testified that he lives beside Appellant, that he has
known Appellant for approximately seven years, and confirmed that they are friends.
Hays stated that he “keep[s] an eye” on Parcel 41 for Appellant because a few break-
ins have occurred at the property. According to Hays, because the property used to
be an elementary school, local kids still use the property for various activities. Hays
testified that he can observe the business sign from his living room, that he never
observed anything affixed to the same, and that he would have advised Appellant if
he had. Hays also said that Appellant asked him to inquire with other people in the
area whether they had observed anything posted on the business sign and stated that
no one had seen anything posted on the same. (R.R. at 43a-47a.)
Renee Manipole (Manipole) testified that she works as an administrative
assistant at D & B Custom Wiring approximately three days per week, that Appellant
is her boss, and that her employment would be in jeopardy if the upset sale is
confirmed. She stated that her office is located in the building on Parcel 41, that
another employee is located inside the building and shares an office with Appellant
when he is in town, and that she usually picks up the mail from a mailbox across the
street on her way into work in the morning or in the afternoon. Manipole explained
that another individual, Sherry, is responsible for the business’s taxes but is only
present at the building approximately four times a year because she can work
remotely. However, Manipole clarified that she is responsible for making a payment
to the United States Treasury once a month and for making an online payment once a
month as funds are available. Manipole noted that she places any items concerning
taxes in a pile in her office for Sherry to pick up. (R.R. at 53a-59a, 70a.)
Manipole further testified that she made two payments to the Bureau in
February 2015; one was a partial payment and the other was the remaining balance.
4
According to Manipole, Appellant received certified mail in May 2015 regarding
taxes and, although she was not given actual permission, she signed Appellant’s
name, placed the items in Sherry’s pile, and may have advised Sherry of the same.
However, Manipole acknowledged that she did not tell Appellant what she had done
because he was not around at that time. (R.R. at 60a-62a.)
Manipole confirmed that a theft occurred at the property in July 2015
where laptops, phone chargers, a candy dish, office supplies, and some food and soda
were stolen. Manipole believed that the theft was committed by young kids because
the business’s expensive electrical equipment was not taken, although it was never
proven, and stated that items in her office and bathroom had been disturbed,
including the items she had set aside for Sherry. (R.R. at 62a-65a.)
Manipole testified that she never observed the notice while she was at
the property. However, she explained that, after the upset sale occurred, she was
asked to photograph the business sign and observed the notice on the ground partially
covered in mulch with the tape still attached. According to Manipole, she picked up
the notice and brought it to her office, where it remained until the day before she
provided her testimony. (R.R. at 66a-70a.)
Appellant testified that he owns D & B Custom Wiring and purchased
Parcel 41 from the school district in 2008. Appellant explained that he was not aware
that he was so behind on the tax payments because it was his understanding that the
payments made in February 2015 brought the property up-to-date except for one year;
however, he acknowledged that the property had previously been scheduled to be
sold at an upset sale in 2014 before he made arrangements to pay the outstanding
taxes. He also stated that he did not see any of the mailings that came to the property,
any of the notices published in the newspaper or legal journal, or the notice posted at
5
the property, and noted that he was able to pay the approximately $6,000.00 owed on
the property at the time it was due because he had access to a cash line of credit in the
amount of approximately $25,000.00. According to Appellant, it was not his practice
for Manipole to execute his signature and, after he discovered that she did, he had a
discussion with her and also advised the local post office administrator to leave him a
card if he had any registered mail so he could retrieve the same. Appellant further
testified that he learned Parcel 41 had been sold at the tax sale when one of the
purchasers visited the property and advised him of the same. (R.R. at 71a-77a, 80a-
85a.)
Appellant explained that the business sign has a width of three-and-one-
half inches. Thus, according to Appellant, the notice expanded beyond the width of
the sign itself. Appellant explained that the sign is in a location where it can be seen
easily, but noted that it is close enough to the road that it could shake if vehicles
drove past. (R.R. at 79a-80a.)
In addition to the proffered testimony, Atkinson’s field report, the
certified mail receipt, the posted notice, and the deed to Parcel 41 were entered into
the record.
By order and memorandum opinion dated March 7, 2016, the trial court
dismissed Appellant’s petition to set aside the tax sale, reasoning that the Bureau met
its burden of establishing, through competent evidence, compliance with the statutory
notice requirements, citing this Court’s decisions in Wiles v. Washington County Tax
Claim Bureau, 972 A.2d 24 (Pa. Cmwlth. 2009), and Hunter v. Washington County
Tax Bureau, 729 A.2d 142 (Pa. Cmwlth. 1999). According to the trial court, the
notice was not unreasonably susceptible to being blown away or vulnerable to
inclement weather because, although it extended approximately two inches past each
6
edge of the sign, it was affixed using “very adhesive” and “good quality” 3M tape.
(Trial court op. at 4.) The trial court noted that the notice was discovered at the base
of the sign with the tape still attached, “suggesting that it could have been pulled
down by one of the ‘kids’ who . . . continue to use the grounds of the . . . property.”
Id. Regarding the testimony of Appellant’s witnesses, the trial court stated that
“[n]one of the witnesses was unbiased, and their failure to observe the [notice]
sometime after it was posted does not establish that it had not been reasonably
secured to the [sign].” (Trial court op. at 5.)
On appeal to this Court,1 Appellant argues that the trial court erred
because the Bureau failed to meets its burden of proving strict compliance with the
statutory notice requirements governing posting of real property tax sale notices.
More specifically, Appellant argues that the Bureau failed to meet its burden to
establish that the notice was reasonably secured.
Conversely, the Bureau argues that the trial court’s determination that
the notice was reasonably secured was supported by the record and Appellant failed
to produce any evidence indicating otherwise.
Discussion
Generally, tax sales are presumed valid. Miller v. Clinton County Tax
Claim Bureau, 909 A.2d 461, 463 n.1. (Pa. Cmwlth. 2006). Once properly
challenged, the taxing authority bears the burden of proving strict compliance with
1
“This Court’s review in judicial tax sale cases is limited to considering whether the trial
court abused its discretion, rendered a decision lacking in supporting evidence, or clearly erred as a
matter of law.” Manufacturers and Traders Trust Company v. Luzerne County Tax Claim Bureau,
56 A.3d 36, 38 n.8 (Pa. Cmwlth. 2012).
7
the notice provisions of the Real Estate Tax Sale Law (Law).2 Id. “Notice provisions
are to be strictly construed and strict compliance with such provisions is necessary to
guard against deprivation of property without due process . . . .” Hunter, 729 A.2d at
143. Once the taxing authority provides competent evidence that the property was
properly posted, the owner must produce contrary evidence. See Barylak v.
Montgomery County Tax Claim Bureau, 74 A.3d 414, 417 (Pa. Cmwlth. 2013).
“Questions of credibility, conflicts in the evidence and the weight to assign evidence
are matters for the trier of fact to resolve and will not be disturbed on appeal.”
Consolidated Return by McKean County Tax Claim Bureau of 9/12/2000 ex rel.
Howard, 820 A.2d 900, 903 (Pa. Cmwlth. 2003).
The Law requires that notice be provided by publication, mail, and
posting. Section 602 of the Law, 72 P.S. §5860.602. “The Law does not prescribe a
particular method of posting; however, the method chosen must be reasonable and
likely to inform the taxpayer of an intended real property sale.” McKean, 820 A.2d at
901. “[T]his Court has taken a practical and commonsense approach to determine
whether a posting was reasonable. Each case depends on the nature and location of
the property and, of course, the placement of the [n]otice.” Wiles, 972 A.2d at 28.
Our case law has explained that a posting is reasonable if it is “conspicuous to the
owner and public and securely attached.” Id.
Appellant essentially argues that the posted notice was not securely
attached because it is not clear that the tape used to post the notice was designed for
adhesion to a wood surface and it was affixed in such a way that the posting would be
vulnerable to weather conditions, specifically alleging that:
2
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101–5860.803.
8
The posting was not under cover. It was accessible to the
elements. The posting was completed with two pieces of
tape. There was no evidence that the tape is designed for
adhesion to wood in the outdoors. No staples were used.
The surface area underneath the notice was significantly
smaller than the notice. Thereby permitting wind to buffet
against the back of the notice.
(Appellant’s brief at 6.)
Additionally, Appellant avers that the trial court’s reliance on Wiles was
misplaced and that case is distinguishable from the present matter because the poster
in Wiles secured the notice using a separate anchor and staples, which were not used
here.
In Wiles, the appellant challenged the propriety of a tax sale, alleging,
inter alia, that the property was not properly posted because the posting consisted of
one half of an ‘8.5 x 11’ piece of paper attached to a 2 inch wide piece of wood lath
with two staples.” 972 A.2d at 28. On appeal to this Court, we stated that “this Court
has taken a practical and commonsense approach to determine whether a posting was
reasonable. Each case depends on the nature and location of the property and, of
course, the placement of the Notice.” Id. Upon review of the record, we affirmed the
trial court and reasoned that the notice was conspicuous and reasonable because the
evidence established, inter alia, that the posting was stapled twice, at the top and at
the bottom, to a stick and hammered securely into the ground on the property.
In the only substantive discussion of Wiles in its decision, the trial court
stated that “[t]he notice was not rendered unreasonably susceptible to being blown
away, or vulnerable to inclement weather, because it extended about two inches past
each edge of the [business sign]. See Wiles, 972 A.2d at 28 (attaching notice to “2
inch wide piece of wood lath with two staples” was sufficient)[.]” (Trial court’s op.
at 4.) Contrary to Appellant’s suggestion, the trial court did not cite Wiles for the
9
proposition that the instant posting was securely attached; rather, the trial court cited
Wiles for the proposition that a posted notice that extends beyond the edges of the
surface does not render the posting per se insufficient. In that regard, we discern no
error with the trial court’s characterization of Wiles.3 Moreover, it is clear to this
Court that Wiles’s holding was fact dependent and, because Wiles did not establish
any particular standards regarding the specific manner of secure attachment of notice,
we disagree with Appellant’s averment that the lack of a separate anchor and staples
renders the present posting insecure.
Appellant also alleges that the trial court’s reliance on Hunter was
erroneous and the case is distinguishable because, there, the poster used a tack and
pins and wrapped masking tape around the notice to secure the same, which did not
occur here.
In Hunter, the appellant challenged the propriety of a tax sale, arguing,
inter alia, that the “five by seven sheets of paper utilized to post the property were
not . . . designed to remain conspicuous” because the posting materials were not
weatherproof and the poster acknowledged that it was raining when posting occurred.
3
Moreover, although not binding authority, we find this Court’s decision in In re Huss (Pa.
Cmwlth. No. 2417 C.D. 2008, filed January 5, 2010), instructive as it relates to Wiles. Specifically,
in Huss, we stated that:
Huss mischaracterizes our holding in Wiles, which does not establish
any particular standards regarding the specific manner of secure
attachment of a notice upon a subject property. The entirety of our
address of that issue reveals that this Court placed no specific
emphasis on the manner of posting attachment, and set no particular
standard for the secure attachment of notice. Rather, Wiles stands for
the general proposition that common sense, and the individual facts of
each case, dictate the reasonableness of the notice at issue.
Slip op. at 4.
10
729 A.2d at 144. However, we rejected that argument and determined that the
posting was reasonably secured, reasoning that the Law does not require that the
notices be made of any particular material, including weatherproof material, and
noting that the record contained no evidence indicating that the notice did not remain
intact and legible.
In its opinion, the trial court’s exclusive discussion of Hunter was a
string citation and parenthetical stating that “weatherproof materials are not
required.” (Trial court op. at 4.) Contrary to Appellant’s contention, the trial court’s
characterization of Hunter was accurate and we discern no error in its reliance on the
same.
Appellant argues that this Court’s decision in McKean should govern the
present controversy because it illustrates how, as in the instant case, the taxing
authority failed to meet its burden to establish strict compliance with the Law’s
statutory notice provisions.
In McKean, the property owner filed exceptions to an upset tax sale,
asserting that notice thereof was not properly posted. The poster testified that he used
masking tape to secure the notice, but acknowledged that he had no specific
recollection of how the notice was attached. The trial court was not satisfied with the
poster’s testimony regarding the manner of posting and, based upon its credibility
determinations and weighing of the evidence, concluded that the taxing authority
failed to meet its burden and establish that the notice had been reasonably secured.
Importantly, the trial court stated that:
The issue is whether or not the notice was “reasonably
secured” to the telephone pole. Nannen testified that he
attached it with “ordinary masking tape.” He had no
recollection of how he attached it. Consequently we have
no way of concluding whether or not it was “reasonably
11
secured.” There is no testimony, for example, whether he
secured the notice by winding the tape around the pole, or
whether he only taped the corners of the notice to the pole,
or only the top and bottom of the notice. Obviously, how it
was affixed to the pole determines whether it was
reasonably secured. If we do not [sic] how it was taped to
the pole, we cannot conclude whether it was reasonably
secured.
820 A.2d at 903. On appeal to this Court, we affirmed the trial court’s decision
because its determination that the taxing authority failed to meet its burden was “fully
consonant with the evidence or, more properly, the lack thereof.” Id.
As McKean instructs, the manner in which the notice was attached
determines whether the notice was reasonably secured. However, unlike McKean,
the record in the present matter contains evidence indicating how the notice was
attached. More specifically, Atkinson testified that he “used tape on the top and
bottom [of the notice] and the type of tape I used is 3M, very adhesive, very sticky. . .
. [I]t’s good quality tape that we use.” (R.R. at 29a.) Unlike the procedural posture
in McKean, here, the trial court concluded that the Bureau met its burden of proving
compliance with the statutory notice provisions and, therefore, Appellant was
required to produce contrary evidence. Appellant submitted witness testimony that
the posted notice had not been observed on the property. However, the trial court
reasoned that none of Appellant’s witnesses were unbiased and “their failure to
observe the [notice] sometime after it was posted does not establish that it had not
been reasonably secured to the [sign],” Trial court’s op. at 5, concluding that
Appellant failed to sufficiently counter the Bureau’s evidence that the notice had been
reasonably secured. As this Court has stated, “[q]uestions of credibility, conflicts in
the evidence and the weight to assign evidence are matters for the trier of fact to
resolve and will not be disturbed on appeal.” McKean, 820 A.2d at 903.
12
Additionally, Appellant’s argument that the Bureau was required to
show certain conditions to establish that the posting was reasonably secured, such as
stapling the notice, using tape that is adhesive to wood, or taping the notice “on each
facing of the sign where there is more surface area,” Appellant’s brief at 11, has been
previously rejected by this Court because the Law does not require these conditions.
See, e.g., Hunter, 729 A.2d at 144. Instead, the trial court is authorized to determine
the weight to be assigned to evidence and, here, determined that the Bureau met its
burden of proving strict compliance with the statutory notice requirements and
Appellant’s evidence was insufficient to counter the same. The trial court’s decision
that the Bureau met its burden and that Appellant failed to sufficiently counter the
Bureau’s evidence is fully consonant with the record. Therefore, because the trial
court did not abuse its discretion, render a decision lacking supporting evidence, or
clearly err as a matter of law, we are constrained to affirm the trial court’s
determination.
Accordingly, the trial court’s order is affirmed.4
________________________________
PATRICIA A. McCULLOUGH, Judge
4
Appellant makes statements in his appellate brief concerning whether he had actual notice
of the sale. However, Appellant also states that “[t]his prong of the statute is not being challenged
as the case of In re Upset Tax Sale Held 11/10/97, 784 A.2d 834 (Pa. Cmwlth. 2001), precludes a
challenge.” (Appellant’s brief at 7.) Additionally, at oral argument, Appellant’s counsel conceded
that he is not challenging whether he had actual notice of the sale. Therefore, we need not consider
this issue.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In the Matter of the Report and Return :
of Christine L. Krzysiak, Director of :
the Crawford County Tax Claim : No. 545 C.D. 2016
Bureau of the Public Sale of Lands :
and Properties, Advertised to be held :
the 25th Day of September, 2015 :
:
Appeal of: Denis Bubna :
ORDER
AND NOW, this 7th day of December, 2016, the March 8, 2016 order
of the Crawford County Court of Common Pleas is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge