J. Jackson v. Delaware County TCB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Josephine Jackson, :
Appellant :
:
v. : No. 1145 C.D. 2020
: ARGUED: October 18, 2021
Delaware County Tax Claim :
Bureau, Bid Properties, LLC, :
and Kenyon Jackson :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: November 18, 2021
Josephine Jackson (Taxpayer) appeals from the October 9, 2020 order of the
Court of Common Pleas (trial court) of Delaware County (County), which denied
Taxpayer’s petition (Petition) to set aside the judicial sale of real property located at
603 Penn Street, Yeadon, Pennsylvania (the Property). The issue on appeal1 is
whether the trial court erred in failing to set aside the judicial sale because the sale
price was grossly inadequate and Taxpayer’s son, Kenyon Jackson (Jackson),
testified that he could satisfy the outstanding tax debt on the Property.2 After review,
we affirm the trial court.
1
Our review in tax sale cases is limited to determining whether the trial court abused its
discretion, rendered a decision without supporting evidence, or clearly erred as a matter of law.
Husak v. Fayette Cnty. Tax Claim Bureau, 61 A.3d 302, 306 n.6 (Pa. Cmwlth. 2013).
2
Taxpayer asserts additional arguments in her appeal; however, as will be more fully
discussed herein, those issues are waived, as they were not raised before the trial court. Issues not
raised before the trial court are waived and cannot be raised for the first time on appeal. Pa. R.A.P.
302(a).
I. Background
The underlying facts in this matter are largely undisputed. Taxpayer
purchased the Property, a single-family residence, on June 21, 1957. Original
Record (O.R.), Item No. 1. It is currently used as a rental property. Notes of
Testimony (N.T.), 7/21/2020, at 11. Due to delinquent taxes owed on the Property,3
the County Tax Claim Bureau (Bureau) filed a petition on January 4, 2017, seeking
to dispose of the Property by judicial sale. Reproduced Record (R.R.) at 35a-36a.
The Bureau sent Taxpayer notice of the judicial sale by certified mail to Jackson’s
San Diego, California address.4 O.R., Item No. 1, Ex. A. Jackson signed the
certified mail receipt on February 6, 2017. R.R. at 39a. The Bureau also mailed
notice of the judicial sale by first-class mail to Taxpayer at the assisted living facility
in which she resided. Id. at 40a.
Thereafter, by means of an April 28, 2017 agreement (Agreement) between
Taxpayer and the Bureau, the judicial sale of the Property was continued from May
3, 2017, until September 14, 2017. O.R., Item No. 1, Ex. B. Per the terms of the
Agreement, Taxpayer would satisfy the delinquent taxes due on the Property, with
an initial payment of $2,000 due on or before May 3, 2017, a second payment of
$2,000 due on or before July 31, 2017, and the balance paid on or before August 31,
2017. Id. In the event Taxpayer failed to comply with the payment terms, she agreed
that she would not file any action to stay or otherwise prevent the September 14,
2017 judicial sale. Id. Taxpayer also acknowledged that, “if no further agreements
[were] made with the [Bureau],” the Property would be sold at the September 14,
3
The tax debt on the Property as of February 6, 2017, totaled $6,476.48. N.T., 7/21/17, at
109.
4
Jackson acted as Taxpayer’s agent pursuant to a durable power of attorney executed in
June 2013. R.R. at 39a.
2
2017 judicial sale, with no additional notice provided by the Bureau, including any
notice of default. Id.Jackson’s counsel mailed the first payment of $2,000 on May 2, 2017. O.R.,
Item No. 1, Ex. C. Jackson mailed a second $2,000 payment in September 2017,
along with a letter dated September 1, 2017, in which Jackson indicated that a final
payment of $2,476 would be made by October 14, 2017. Id., Ex. D. The Property
was subsequently sold for $17,000 at the September 14, 2017 judicial sale. R.R. at
55a.
Taxpayer filed her Petition on October 13, 2017, asserting that the September
2017 payment was an attempt to “reach ‘further agreement’” with the Bureau, as
provided for in the Agreement. O.R., Item No. 1, ¶ 20. Jackson understood that, by
making the second payment, the Property would not be sold at judicial sale. Id.Taxpayer estimated that the Property’s value ranged from $84,900 to $129,000 but
that she would only receive approximately $8,000 from the proceeds of the judicial
sale. Id., ¶¶ 22-23. Given that Taxpayer paid $4,000 towards the Property’s
outstanding tax debt, its subsequent sale was “grossly unfair.” Id., ¶ 24. While
Taxpayer conceded that she had no statutory right to redeem the Property, she was
“ready, willing[,] and able to complete the payments” required under the Agreement.
Id., ¶ 27. Accordingly, Taxpayer requested that the trial court exercise its equitable
powers and set aside the judicial sale in the “interest of justice,” pursuant to Rule
3132 of the Pennsylvania Rules of Civil Procedure (Rule 3132). Pa.R.Civ.P. 3132.5
Id., ¶¶ 28-29.
5
Rule 3132 provides that, “[u]pon petition of any party in interest before delivery of the
personal property or of the sheriff's deed to real property, the court may, upon proper cause shown,
set aside the sale and order a resale or enter any other order which may be just and proper under
the circumstances.”
3
The trial court granted the purchaser of the Property, Bid Properties, LLC
(Intervenor), intervenor status and held a hearing on Taxpayer’s Petition. O.R., Item
No. 8. Jackson testified on Taxpayer’s behalf. Intervenor presented the testimony
of Sherri Eyer, counsel for the Bureau, and Kimberly Kenney, the Bureau’s judicial
sales coordinator.
Jackson testified that he immediately contacted the Bureau upon receiving
notice that the Property would be sold at the May 3, 2017 judicial sale. N.T.,
7/21/20, at 14. At that time, he was advised by one of the Bureau’s staff that nothing
could be done to prevent the judicial sale. Id. Thereafter, Jackson retained counsel,
who negotiated the terms of the Agreement with Eyer. Id. at 15-16. Jackson asserted
that he fully intended to comply with the payment structure in the Agreement;
however, he suffered a financial setback in June 2017 due to his mother’s medical
expenses. Id. at 18-20. In July 2017, Jackson attempted to contact Eyer by telephone
to request a modification of the Agreement’s payment terms. Id. at 22. Ultimately,
Jackson mailed the Bureau a cashier’s check for $2,000, along with a letter dated
September 1, 2017, “explaining what [he] hope[d] to do” with respect to the final
payment. Id. at 22, 25. Jackson had no further contact with the Bureau until after
the September 14, 2017 judicial sale had taken place. Id. at 24. The Bureau returned
Taxpayer’s $2,000 cashier’s check with no explanation. Id.
Jackson stated that he mailed the cashier’s check and September 1, 2017 letter
to the Bureau with the understanding that, “within reason[, the A]greement could be
changed or modified.” Id. at 29. He advised that the Property’s tax-assessed value
at the time of the judicial sale was $69,840, and comparable properties were selling
for $95,000 to $110,000. Id. at 33, 40; O.R., Item No. 1, Ex. F. Intervenor objected
to introduction of Taxpayer’s report of comparable property values, as it was
4
obtained from an online database by Taxpayer’s counsel, who established the
parameters of the property search, and it was unclear what those parameters were
with regard to location, condition, and square footage. N.T., 7/21/20, at 36.
Taxpayer’s counsel conceded that Jackson did not prepare the report himself;
however, Jackson did discuss the results with Taxpayer’s counsel, and Jackson had
“knowledge of the properties and the sale prices.” Id. at 35, 37. The trial court
allowed Taxpayer’s counsel to continue questioning Jackson about the report, noting
that it would give the document “the weight . . . it deserves.” Id. at 37. As to his
knowledge of real estate and qualifications to review the properties listed on the
report, Jackson related that he is not a realtor, but he “know[s] quite a few people
who are[,]” and Jackson has “studied to take the real estate test . . . .” Id. at 39.
During cross-examination, Jackson acknowledged that he had not paid the
Property’s outstanding tax debt, which he agreed had increased due to additional
assessments made after the September 14, 2017 judicial sale.6 Id. at 50. Jackson
admitted that he could not write a check for the total amount in arrears, but he could
pay a portion immediately and finance the remaining balance, to be paid within 30
days. Id. at 52. Jackson further admitted that Taxpayer continued to use the Property
as a source of income following the September 14, 2017 judicial sale,7 and that, aside
from a six-month period during which the Property was vacant, Taxpayer had
received between $1,000 and $1,300 per month in rental income. Id. at 48-49.
6
The total amount of taxes due as of the July 21, 2020 hearing is unclear. While Jackson
believed that the Property’s tax debt was “[i]n the neighborhood of $30,000,” Kenney testified that
it was “around $25,500.” N.T., 7/21/20, at 51, 107.
7
Eyer related that the deed to Intervenor was never recorded, as proceedings were stayed
when Taxpayer filed her Petition. N.T., 7/21/20, at 102. As a result, Taxpayer maintained
ownership and possession of the Property after the September 14, 2017 judicial sale. Id.
Intervenor’s deed to the Property was eventually recorded on November 2, 2020. R.R. at 18a.
5
Jackson conceded that, although the letter he mailed with the $2,000 cashier’s
check was dated September 1, 2017, he obtained the cashier’s check from his bank
branch in San Diego, California on September 13, 2017. Id. at 57, 59; O.R., Item
No. 1, Ex. D. Jackson agreed, therefore, that he did not mail the $2,000 cashier’s
check before September 13, 2017, and he had no proof that the Bureau received it
prior to the September 14, 2017 judicial sale. N.T., 7/21/17, at 57. Jackson also
agreed that he never discussed modifying the Agreement with Eyer, and his first
written communication to her was the September 1, 2017 letter and cashier’s check
he mailed on September 13, 2017. Id. at 63, 73.
Eyer testified that her first contact in this matter came in an April 11, 2017
letter from Jackson’s counsel that sought an agreement for paying the Property’s
outstanding tax debt. Id. at 99. Upon receipt of the signed Agreement from Jackson
and the first $2,000 payment, Eyer continued the judicial sale of the Property from
May 3, 2017, until September 14, 2017. Id. at 100. Eyer had no further
communication with either Jackson or his counsel and she was only aware that
Taxpayer failed to make the second $2,000 payment after the Property was sold on
September 14, 2017. Id. at 100, 102. The Bureau received Jackson’s letter and the
$2,000 cashier’s check on September 18, 2017. Id. at 101. Eyer testified that she
might have granted Taxpayer an extension, given that she had made one payment
towards the tax debt. Id. at 103-04. She confirmed, however, that no such agreement
had been negotiated with the Bureau. Id. at 104.
Kenney testified that she was responsible for sending the judicial sale notices
for the Property. Id. at 108. She advised that a note in the Property’s tax sale file
indicated that Jackson called the Bureau on February 6, 2017, after he received
notice of the May 3, 2017 judicial sale. Id. at 108-09. The file did not reflect any
6
other contact from Jackson from the period of May 2, 2017, to September 14, 2017.
Id. at 109.
The trial court issued its order denying Taxpayer’s Petition on October 9,
2020. O.R., Item No. 34. Taxpayer appealed to this Court and filed a Concise
Statement of Errors Complained of on Appeal (Concise Statement), in which she
asserted four bases for challenging the trial court’s denial of her Petition. First,
Taxpayer argued that the trial court should have set aside the judicial sale because
the $17,000 sale price received for the Property was grossly inadequate. O.R., Item
No. 43, ¶ 1. Second, Taxpayer contended that the trial court erred in denying the
Petition, as Jackson testified that he could satisfy the total amount of delinquent taxes
on the Property. Id., ¶ 2. Taxpayer next argued that a set aside of the sale was
appropriate because the Bureau erroneously advised Jackson that nothing could be
done to prevent the judicial sale. Id., ¶ 3. Finally, she argued that the judicial sale
must be set aside because the Bureau failed to give proper notice of the upset tax
sale, as required by the Real Estate Tax Sale Law (RETSL).8
In its opinion issued pursuant to Pa.R.A.P. 1925(a)(1), the trial court noted
that Taxpayer’s third and fourth issues were not previously raised in either her
Petition or her post-hearing memorandum of law. O.R., Item No. 45, at 2-3. As
those issues were not properly preserved for appellate review, they could not form a
basis for relief from the judicial sale. Id. Regarding Taxpayer’s first two issues, the
trial court noted that a tax sale is presumed to be valid and that “mere inadequacy”
8
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101 – 5860.803. Pursuant
to Section 601 of RETSL, in the event of a real estate tax delinquency, a county tax bureau may
expose the property to an upset tax sale. 72 P.S. § 5860.601. Section 602 requires three different
forms of notice to property owners prior to an upset tax sale: publication, posting, and mail. 72
P.S. § 5860.602. If the upset sale price is not bid, Section 610 of RETSL provides that the property
may be exposed to judicial sale. 72 P.S. § 5860.610.
7
of sale price is not a sufficient basis for setting aside the sale. Id. at 3. The trial
court found no support in the record for Taxpayer’s contention that the sale price for
the Property was “grossly inadequate.” Id. at 4. It similarly dismissed Taxpayer’s
argument that a set aside was justified because Jackson testified that he could satisfy
the total amount of tax arrearages. Id. The evidence presented at the July 21, 2020
hearing demonstrated the “utter incompetence” with which Jackson handled
payment of the Property’s tax debt, a fact acknowledged in Taxpayer’s post-hearing
memorandum of law. Id.; O.R., Item No. 31, at 2. Taxpayer’s admission that
Jackson was incompetent in handling her affairs significantly weakened her
argument that Jackson could pay the remaining debt. Id. at 4. As the record offered
no valid basis for the trial court to exercise its equitable powers, the trial court urged
this Court to affirm its decision denying Taxpayer’s Petition. Id.
II. Issues
In her appeal to this Court, Taxpayer reiterates the arguments set forth in her
Concise Statement, asserting that the trial court erred in failing to set aside the
judicial sale where: (1) the sale price received for the Property was grossly
inadequate; (2) Jackson testified that he could pay the outstanding tax debt; (3)
Jackson was provided erroneous information by Bureau staff that nothing could be
done to prevent the judicial sale; and (4) the Bureau failed to give notice of the upset
sale, as required by Section 602 of RETSL.
III. Discussion
First, we address whether the trial court was obligated to set aside the judicial
sale of the Property because the sale price was grossly inadequate.
The setting aside of a sheriff’s sale is an equitable proceeding, and the party
seeking a set aside bears the burden of proof. Allegheny Cnty. v. Golf Resort, Inc.,
8
974 A.2d 1242, 1245 (Pa. Cmwlth. 2009). It is presumed that the price received at
a duly advertised public sale is the highest and best obtainable, and our courts have
held that mere inadequacy of price, standing alone, is an insufficient basis for setting
aside a sheriff’s sale. Id. at 1247 (internal citations omitted).
Taxpayer acknowledges a presumption exists that the sale price obtained at
the September 14, 2017 judicial sale was the “highest and best available.”
Taxpayer’s Br. at 10. She maintains, however, that a set aside is warranted here,
given that the Property sold for $17,000 and Jackson testified that comparable
properties sold for $95,000 to $110,000. Given Jackson’s “experience in real
estate,” and his competence to testify on the value of his mother’s property, Taxpayer
argues that the evidence demonstrated the Property was worth over $100,000.
Taxpayer suggests that, because the sale price received for the Property is a fraction
of its value, this Court should set aside the judicial sale. Alternatively, Taxpayer
requests a remand for further proceedings on the adequacy of the sale price. In
support, Taxpayer cites an unreported decision of this Court, Hart v. Bulldawg LLC
(Pa. Cmwlth., No. 107 C.D. 2016, filed February 14, 2017).
In Bulldawg LLC, this Court reviewed whether the price received at a tax sale
was grossly inadequate where real property with an alleged fair market value of
$78,000, sold for $1,100. The trial court denied the petition of the property owner,
Darren Hart (Hart), to set aside the sale because Hart failed to present evidence
supporting the property’s alleged fair market value. Id., slip op. at 2. This Court
agreed that Hart failed to substantiate his claim that the real property was worth
$78,000. Id. at 4. Hart had, however, testified that he purchased the real property
for $20,000. Id. We therefore concluded that the trial court erred in failing to
evaluate the evidence and determine whether the sale price was grossly inadequate,
9
and we vacated the trial court’s order and remanded the matter for a determination
on the adequacy of the sale price. Id.
Taxpayer’s reliance on Bulldawg LLC ignores this Court’s ultimate resolution
of that matter in City of Philadelphia v. Hart, 224 A.3d 815, 823 (Pa. Cmwlth. 2020),
in which we concluded that the property’s $1,100 sale price was not grossly
inadequate, even though it represented a small percentage of the property’s fair
market value, which Hart’s appraiser estimated to be $30,000. We noted that what
constitutes a grossly inadequate price had not been fixed by the courts; rather, such
a determination was based on all the facts of each case, and not simply the difference
between a property’s sale price and its fair market value. Id. at 822. In that regard,
we considered the outstanding debt on Hart’s property, which the parties agreed
exceeded $35,000, and the fact that Hart would not be liable for that debt following
the tax sale. Id. at 822-23. Simply put, Hart had no equity in the property, because
the $35,000 debt encumbering the property surpassed its $30,000 fair market value.
Id. at 823.
Instantly, we cannot agree with Taxpayer that a set aside or remand is required
based on gross inadequacy of sale price, as her argument is, in part, guided by her
perceived value of the Property, which she based on the report of comparable
properties generated by her counsel. The trial court acknowledged this evidence,
along with Jackson’s testimony, in its October 9, 2020 order, but gave it little weight,
concluding that Taxpayer failed to provide evidence that the sale price for the
Property was grossly inadequate. O.R., Item No. 34 at 3-4. The trial court reiterated
this conclusion in its February 4, 2021 opinion issued pursuant to Pa.R.A.P.
1925(a)(1). O.R., Item No. 45.
10
The trial court, as factfinder, has the exclusive authority to weigh the
evidence, render credibility determinations, and draw reasonable inferences from the
evidence presented. Barylak v. Montgomery Cnty. Tax Claim Bureau, 74 A.3d 414,
417 (Pa. Cmwlth. 2013). This Court may not make contrary credibility
determinations or reweigh the evidence for the purpose of reaching an opposite
result. In re Sullivan, 37 A.3d 1250, 1256 (Pa. Cmwlth. 2012). Nor would we, as
Taxpayer’s report contains no detail beyond the address of each property deemed
“comparable” and its sale price, the number of bedrooms and bathrooms, and
whether the residence is detached or semi-detached. O.R., Item No. 1, Ex. E.
Jackson’s alleged “knowledge of the properties and the sale prices” in the report is
less than compelling, given that Jackson’s real estate expertise is based on
“know[ing] quite a few people who are realtors . . .” and having studied for “the real
estate test.” N.T., 7/21/20, at 39.
Jackson unquestionably had the legal authority to act on Taxpayer’s behalf,
and, in that capacity, he negotiated and executed the Agreement to pay the
outstanding taxes. Jackson made one timely payment. Although Jackson testified
that he attempted to contact Eyer by telephone in July to renegotiate payment terms,
Jackson admitted that he never spoke with her. Jackson mailed his first written
communication seeking an amendment to the payment schedule on September 13,
2017, one day prior to the tax sale and several weeks after the July 31, 2017 payment
deadline.
Moreover, despite her failure to comply with the terms of the Agreement and
resolve the Property’s outstanding tax debt, Taxpayer continued to use the Property
as a source of income throughout the approximate three-year period that followed
the September 14, 2017 tax sale, charging her tenants between $1,000 and $1,300
11
per month. Even taking into account Jackson’s testimony that the Property was
vacant for six months, the record reflects that Taxpayer collected at least two years
of rental income from the Property after it was sold at judicial sale.
Given that the Property was previously exposed to an upset sale that failed to
generate bids sufficient to satisfy the upset price, and in consideration of Jackson’s
failure to comply with the Agreement’s terms, his last-minute and unilateral attempt
to renegotiate payment terms, and the rental income Taxpayer derived from the
Property after the judicial sale took place, we are compelled to agree with the trial
court that the $17,000 sale price received at judicial sale was not grossly inadequate
in comparison to the Property’s assessed value of $69,840.
Next, we address whether the trial court erred in denying Taxpayer’s Petition,
given that Jackson testified he could pay the outstanding tax debt. Taxpayer relies
entirely on Jackson’s testimony that he could pay the amount in arrears.
Taxpayer bore the burden of proving her circumstances warranted the trial
court’s exercise of its equitable powers. Golf Resort, Inc., 974 A.2d at 1245. In
rejecting Taxpayer’s Petition, the trial court found that the evidence failed to
establish a valid basis for setting aside the judicial sale, particularly given the “utter
incompetence” with which Jackson handled Taxpayer’s affairs, a view shared by
Taxpayer in her post-hearing memorandum of law. O.R., Item No. 52, at 2.
We will not usurp the trial court’s role as factfinder and cannot fault its
disregard of Jackson’s testimony, given his previous failure to comply with the
Agreement and satisfy the Property’s tax debt, as well as Jackson’s explicit
testimony that he could not pay the total amount in arrears as of July 21, 2020.
As to Taxpayer’s third and fourth issues, our review of the record confirms
the trial court’s conclusion that Taxpayer failed to preserve these issues for appellate
12
review, having first raised them in her Concise Statement. Taxpayer’s Petition does
not contain a single allegation, even by implication, that the Bureau provided false
information regarding Taxpayer’s ability to redeem the Property prior to the date of
the judicial sale.9 The Petition is likewise bereft of any suggestion that the Bureau
failed to comply with the upset sale notification provisions in RETSL.10 Taxpayer’s
memorandum of law, which she submitted to the trial court following the July 21,
2020 hearing, fails to raise either issue. As a result, these issues are waived, and we
will not address them further.
IV. Conclusion
Based on the evidence presented, we conclude that Taxpayer failed to
establish that the sale price obtained for the Property was grossly inadequate such
that it warrants a set aside of the judicial sale. Taxpayer likewise failed to
9
Taxpayer’s Petition alleges that Jackson contacted officials in Yeadon, Pennsylvania, the
borough in which the Property is located, to inquire about the “status of current and delinquent
taxes” assessed on the Property. O.R., Item No. 1, ¶ 13. The Petition does not elaborate, however,
on the substance of any conversations Jackson may have had with Yeadon officials, or suggest the
relevance thereof as to separate actions taken by the Bureau.
Ultimately, even had Taxpayer raised this issue in her Petition, it would not form a basis
for setting aside the September 14, 2017 judicial sale. While Jackson testified that he called the
Bureau and was told nothing could be done to prevent the judicial sale, this conversation took
place prior to the May 3, 2017 sale. N.T., 7/21/20, at 14. Jackson subsequently retained counsel,
who negotiated the Agreement with the Bureau. It is irrelevant whether the Bureau’s staff provided
incorrect information regarding steps Jackson might have taken to prevent the May 3, 2017 judicial
sale, as Jackson was clearly able to forestall that sale.
10
Taxpayer avers in her Petition that the Bureau mailed delinquent tax notices to the
Property but failed to send additional notifications to Jackson’s address in San Diego, California
or to Taxpayer’s assisted living facility. She does not allege, however, that this constituted
improper notice under RETSL, and she has not challenged the validity of the upset tax sale.
13
demonstrate that Jackson could pay the Property’s outstanding tax debt and the trial
court did not err in dismissing her Petition. Accordingly, we affirm the trial court.
__________________________________
ELLEN CEISLER, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Josephine Jackson, :
Appellant :
:
v. : No. 1145 C.D. 2020
:
Delaware County Tax Claim :
Bureau, Bid Properties, LLC, :
and Kenyon Jackson :
ORDER
AND NOW, this 18th day of November, 2021, the October 9, 2020 order of
the Court of Common Pleas of Delaware County is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge