In Re: Consol. Return of Sale of Properties for Delinquent Taxes by the Fayette County TCB October 19, 2020 ~ Appeal of: Seneca Leandro View, LLC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Consolidated Return of Sale :
of Properties for Delinquent Taxes :
by the Fayette County Tax Claim :
Bureau October 19, 2020 :
: No. 308 C.D. 2021
Edward J. Berry and Karen A. : SUBMITTED: October 21, 2021
Berry, his wife :
:
v. :
:
Fayette County, Tax Claim Bureau :
:
Appeal of: Seneca Leandro View, LLC :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE J. ANDREW CROMPTON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: November 16, 2021
Seneca Leandro View, LLC, the Buyer of Edward J. and Karen A. Berry’s
(Owners) property in Smithfield Borough, Fayette County, appeals from the order of
the Court of Common Pleas of Fayette County granting the Owners’ petition to set
aside and void the tax sale of their property. The Fayette County Tax Claim Bureau
joins in the Buyer’s Brief. We affirm.
The Owners were stipulated to be both owners and occupants.1 The trial
court found, pursuant to the stipulation of the parties, that the Fayette County Tax
Claim Bureau did not personally serve the Owners with notice of the tax sale.
1
Certified mail service of the sale was sent to the Owners’ post office box (there is no mail
service at the property) but was returned unclaimed.
Additionally, the trial court found that the Owners did not have actual notice of the tax
sale.2
On appeal, the Buyer contends that trial court erred in finding that the
Owners did not have actual notice of the tax sale “despite evidence to the contrary and
in light of the personal service limitations brought about by the COVID-19 pandemic.”
(Buyer’s Br. at 2.) Because personal service was required, we find the Buyer’s
argument to be irrelevant.
Section 601(a)(3) of the Real Estate Tax Sale Law,3 72 P.S. §
5860.601(a)(3), provides that where owner-occupied property is at issue, notice
described in Section 602 of the Law, 72 P.S. § 5860.602, must be personally served
upon an owner-occupant at least ten days prior to the date of the actual sale by sheriff.
The requirements found in Section 601(a)(3) are cumulative and apply in addition to
those found in Section 602. Consol. Reports and Return by the Tax Claim Bureau of
Northumberland Cnty. of Props. (Appeal of Neff), 132 A.3d 637, 645 (Pa. Cmwlth.
2016). Further, actual notice does not provide grounds to waive strict compliance with
Section 601(a)(3)’s personal service requirement. Id. at 646. Consequently, “unless a
taxing bureau obtains an order waiving the personal service requirement for good cause
shown, its failure to comply with [S]ection 601(a)(3) of the [Law] will render a tax sale
invalid.” Gutierrez v. Washington Cnty. Tax Claim Bureau and Bigger and Better
Rental, LLC, ___ A.3d ___ (Pa. Cmwlth., No. 430 C.D. 2020, filed June 10, 2021)
2
The determination of lack of actual knowledge was based upon the finding that Mrs. Berry had
seen the posted notice and made a partial payment of the 2018 taxes owed through the website used
by the Bureau to receive such payments and believed that her payment was sufficient to avoid the
sale (the sale of the property was conducted because of a remaining deficiency of about $150). We
need not address whether this circumstance abrogates actual notice, since actual notice does not matter
to our disposition of the case.
3
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.601(a)(3).
2
[quoting Montgomery Cnty. Tax Claim Bureau v. Queenan, 108 A.3d 947, 952 (Pa.
Cmwlth. 2015)].
With regard to the Buyer’s argument that the COVID-19 pandemic
justified the Bureau’s failure to effect personal service, we agree with the Owners that
the issue has been waived for failure to raise it previously and that difficulties
encountered by the Bureau resulting from COVID-19 are not supported in the record.4
Nevertheless, even if the issue were not waived, if the pandemic was indeed a factor
that somehow prevented personal service, the proper way to proceed would have been
for the Bureau to petition for a waiver or postpone the sale, not to wholly ignore the
statutory requirement.5
In light of the foregoing, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
4
Counsel for the Bureau explained to the trial court that the reason for lack of personal service
was as follows:
As an owner-occupied property, we are obligated to serve [the Owners]
by sheriff and personal service. We have not done so in this case due
to the volume of cases that we have, and we often times don’t know
ahead of time whether or not it’s owner-occupied. In particular [in] this
case, the family uses a PO Box because they don’t have mail service
directly at their home, so we did not know that it was owner-occupied.
(Notes of Testimony at 5; Reproduced Record at 68a.)
5
Finally, not listed as an issue, but briefly argued, is the Buyer’s allegation of bias by the trial
court. The Buyer suggests that the trial court demonstrated bias against it by quoting this Court’s
statement that the Law “assists in the collection of taxes and is not intended to create investment
opportunities for others,” Jenkins v. Fayette Cnty. Tax Claim Bureau, 176 A.3d 1038, 1043 (Pa.
Cmwlth. 2018). The Buyer also notes that the appeal in Jenkins emanated from the same trial court
(albeit from a different judge). We see no evidence, as the Buyer suggests, that its status as a potential
investor “directly and negatively influenced the [t]rial [c]ourt’s ruling,” (Buyer’s Br. at 14)—the
legally operative facts were stipulated and the result dictated by law.
3
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Consolidated Return of Sale :
of Properties for Delinquent Taxes :
by the Fayette County Tax Claim :
Bureau October 19, 2020 :
: No. 308 C.D. 2021
Edward J. Berry and Karen A. :
Berry, his wife :
:
v. :
:
Fayette County, Tax Claim Bureau :
:
Appeal of: Seneca Leandro View, LLC :
ORDER
AND NOW, this 16th day of November, 2021, the order of the Court of
Common Pleas of Fayette County in the above-captioned matter is AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita