In Re: Upset Tax Sale of Lehigh County TCB of Properties Held on September 15, 2021 ~ Appeal of: R.L. Clever

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Upset Tax Sale of Lehigh :
County Tax Claim Bureau of :
Properties Held on :
September 15, 2021 : No. 1442 C.D. 2021
: Submitted: October 21, 2022
Appeal of: Ronald L. Clever :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 3, 2023
Ronald L. Clever (Clever) appeals the Order of the Lehigh County
Court of Common Pleas (trial court) denying his Motion for an order directing the
Lehigh County Tax Claim Bureau (Bureau) to permit him and the public to
physically attend any and all future tax sales of property to be conducted pursuant to
the Real Estate Tax Sale Law (R.E.T.S.L.).1 We affirm.
The trial court summarized the relevant facts of this case as follows:
On September 15, 2021, [the Bureau] conducted an
upset tax sale pursuant to the [R.E.T.S.L.] inside an
auditorium at a local college instead of the [Lehigh
County C]ourthouse in order to have sufficient room for
attendees to be C[OVID]-compliant. It separated the
auction attendees into two groups, registered bidders who
were allowed to sit in the auditorium where the sale was
1
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101 – 5860.803.
being conducted, and non-registered bidders, i.e., the
general public, including [Clever], who were instructed to
go to the lobby of the auditorium where they could watch
the sale on closed circuit television. Clever was not
representing any registered bidder or other interested
party at the upset sale. He, nonetheless, insisted on sitting
in the auditorium with the registered bidders. His request
was refused and he left the premises.
Trial Court 12/13/21 Opinion at 1.
Prior to the sale, on September 3, 2021, Elite Revenue Solutions, LLC
(Elite), as agent for the Bureau, had filed a “Petition to Waive Personal Service of
Certain Owners for Good Cause Shown” (Petition), pursuant to Section 601(a)(3) of
the R.E.T.S.L.2 See Original Record (O.R.) at 1-11.3 The Petition was docketed in
the trial court at Trial Court Docket Number (Dkt. No.) 2021-TX-0041. See id. By
September 10, 2021 Order, the trial court granted the Petition, which directed “that
all owner-occupied properties set forth in [the exhibit] attached to [the] Petition may
be sold at the Tax Sale scheduled for September 15, 2021, even though the owner-
occupant has not personally been notified of the Sale by the Sheriff.” Id. at 34.
On September 30, 2021, Clever filed his Motion, in which he sought
relief in the nature of “an Order providing that, at all future sales held by the
2
72 P.S. §5860.601(a)(3). Section 601(a)(3) states, in pertinent part:
No owner-occupied property may be sold unless the [B]ureau has
given the owner occupant written notice of such sale at least ten (10)
days prior to the date of actual sale by personal service by the sheriff
or his deputy or person deputized by the sheriff for this purpose. . . .
If such personal notice cannot be served within twenty-five (25)
days of the request by the [B]ureau to make such personal service,
the [B]ureau may petition the [trial court] to waive the requirement
of personal notice for good cause shown. Personal service of notice
on one of the owners shall be deemed personal service on all owners.
3
Because the O.R. was filed electronically and was not paginated, the page numbers
referenced in this memorandum opinion reflect electronic pagination.
2
[Bureau], the [Bureau] shall permit [Clever] to attend any and every sale, regardless
of whether or not he is, or shall be, a registered bidder,” and that “the same relief []
be given to the general public, too.” O.R. at 38-39.4 Clever filed the Motion at Dkt.
No. 2021-TX-0041, the caption and docket number for Elite’s proceedings under
Section 601(a)(3) of the R.E.T.S.L. See id. at 36-41.5 On November 3, 2021, Elite
filed a Response to Motion in which it denied all of the material allegations raised
in Clever’s Motion, and asked the trial court to deny the Motion. See id. at 222-28.
On November 17, 2021, the trial court issued an Order denying Clever’s
Motion that stated, in relevant part:
The sale of real property due to delinquent taxes is
governed by the [R.E.T.S.L.] In pertinent part, the statute
refers to “public sale.” See, e.g., [Section 610 of the
R.E.T.S.L.,] 72 P.S. §5860.610. It does not specify what
that means, and neither party has provided any authority
by which to define it.
Section [501-A,6] which became effective on
August 30, 2021, requires anyone who intends to bid at a
scheduled upset sale or judicial sale “appear and register”
at the [Bureau] not less than ten days before the scheduled
sale. The sale which is the subject of [Clever’s] Motion
was held on September 15, 2021. [Clever] does not allege
he registered to bid at the sale. According to the Bureau’s
uncontroverted Response to [Clever’s] Motion, he “could
have watched the sale on the closed-circuit television in
4
That same day, Elite filed a “Consolidated Return of Upset Tax Sale of Properties held
on September 15, 2021, Pursuant to the R.E.T.S.L.,” making a consolidated return of the sale of
properties for the nonpayment of taxes in accordance with Section 607 of the R.E.T.S.L., 72 P.S.
§5860.607. See O.R. at 42-101.
5
During the pendency of proceedings on Clever’s Motion, he also filed appearances as
counsel for Joseph M. Costello and Harry J. Dannecker, Jr. as “interested parties” in the
proceedings initiated by Elite. See O.R. at 192-95.
6
Added by the Act of June 30, 2021, P.L. 180, 72 P.S. §5860.501-A.
3
the lobby of the auditorium where the sale was held. Other
members of the public exercised this option.” [O.R. at
224.]
The word “public” does not convey an absolute
right to attend an event in person. For example, public
health and safety measures, the capacity of the venue,
etc.[,] may reasonably limit the number of people who
may attend in person. What it does mean is that all
members of the public should have equal access to the
event. Here, the sale was open to the public, including
[Clever], by virtual means, i.e., closed-circuit television.
He elected not to take advantage of it.
O.R. at 196 n.1. Clever filed the instant timely appeal of the trial court’s Order.7
On appeal, Clever claims that the trial court erred in denying his Motion
because: (1) the R.E.T.S.L. does not grant the Bureau the authority to restrict public
access to tax sales; and (2) he was entitled to a hearing on his Motion based on the
Pennsylvania Rules of Civil Procedure (Pa.R.Civ.P.) and the relevant local rules.
Notwithstanding, we affirm the trial court’s Order on the basis that it was without
jurisdiction in the first instance8 to determine Clever’s R.E.T.S.L. rights, or to grant
the requested relief, under the caption and docket number of Elite’s prior proceeding
7
“As the interpretation of both statutes and the [Pa.R.Civ.P.] are pure questions of law, our
standard of review is de novo and our scope of review is plenary. See Commonwealth v. Levy, 83
A.3d 457, 461 (Pa. Super. 2013); Keller v. Mey, 67 A.3d 1, 5 (Pa. Super. 2013).” Berdomas v.
Moyer (Pa. Super., No. 1017 WDA 2018, filed July 12, 2019), slip op. at 4. Although decisions
of the Superior Court are not binding on this Court, they may provide persuasive authority where
they address analogous issues. Lerch v. Unemployment Compensation Board of Review, 180 A.3d
545, 550 (Pa. Cmwlth. 2018). This includes unpublished panel decisions of the Superior Court
filed after May 1, 2019. See Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’
refers to an unpublished non-precedential memorandum decision of the Superior Court filed after
May 1, 2019. . . . Non-precedential decisions . . . may be cited for their persuasive value.”).
8
“It is well settled that questions of jurisdiction can never be waived, and they may be
raised at any time by the parties or sua sponte by an appellate court.” Riverwatch Condominium
Owners Association v. Restoration Development Corporation, 931 A.2d 133, 138 n.5 (Pa. Cmwlth.
2007) (citation omitted).
4
in the trial court on its Petition to waive the personal service requirements that was
filed pursuant to Section 601(a)(3) of the R.E.T.S.L.
The instant action seeking to compel the Bureau to “permit [Clever] to
attend any and every sale, regardless of whether or not he is, or shall be, a registered
bidder,” and to grant “the same relief [] be given to the general public, too,” see O.R.
at 38-39, may not be initiated by the mere expedience of Clever’s filing the Motion
under the caption and docket number of the proceedings on Elite’s Petition for a trial
court order waiving the personal service requirements of Section 601(a)(3). Rather,
Pa.R.Civ.P. 1001(a) and (b)(3) states, in relevant part: “As used in this chapter . . .,
‘action’ means a civil action brought in . . . any court which is subject to these rules.
There shall be a ‘civil action’ in which shall be brought all claims for relief
heretofore asserted in . . . the action in equity.[9]” See also Pa.R.Civ.P. 1091 (“[T]he
procedure in the action of mandamus shall be in accordance with the rules relating
to a civil action.”).10
In turn, Pa.R.Civ.P. 1007 states: “An action may be commenced by
filing with the prothonotary (1) a praecipe for a writ of summons, or (2) a
complaint.” See, e.g., Chichester School District v. Chichester Education
Association, 750 A.2d 400, 403 (Pa. Cmwlth. 2000) (holding that a school district’s
9
See, e.g., Bristol Township Water Authority v. Lower Bucks County Joint Municipal
Authority, 567 A.2d 1110, 1115 (Pa. Cmwlth. 1989) (“Where statutory authorities do an illegal
act, or one which they have no authority to perform, equity will grant relief. Mazeika v. American
Oil Company, [118 A.2d 142, 143 (Pa. 1955)].”).
10
See, e.g., Nader v. Hughes, 643 A.2d 747, 752 n.13 (Pa. Cmwlth. 1994) (“The civil action
of mandamus lies to compel the performance of a ministerial act or mandatory duty only where
there exist a clear legal right in the plaintiff and a corresponding duty in the defendant and a lack
of another appropriate and adequate remedy. Thus, the effect of the action when brought against
a public official is to compel the public official to perform acts which are required or obliged to
be performed and which do not involve an exercise of discretion or judgment.”) (citations omitted).
5
petition to set aside collective bargaining agreements with an education association
and an administrators’ association was not the procedurally proper way in which to
initiate an equity action; rather, the district should have filed a praecipe for a writ of
summons or a complaint).
As the Pennsylvania Superior Court has explained:
Here, [the lot owner] commenced this action by
filing with the trial court a “Motion to Remove Deed from
Record.” As our Supreme Court has recognized, however,
“[n]owhere do the rules [of civil procedure] provide for
commencing an action by a petition.” Hartmann v.
Peterson, [265 A.2d 127, 128 (Pa. 1970)]. “With no
complaint, summons or amicable agreement to bring [an]
action within the power to act of the court below, [the
court] has no power to make any order whatsoever,
including an order allowing the filing of a complaint nunc
pro tunc.” Id.; see also In re Casale, [517 A.2d 1260, 1263
(Pa. 1986)] (“[A]n action brought by petition and rule,
neither authorized by statute nor auxiliary to jurisdiction
already obtained and not designed to correct the court’s
own records, is a nullity and confers no jurisdiction on the
court.”) (footnote omitted); Wm. Garlick & Sons, Inc. v.
Lambert, [287 A.2d 143, 144 (Pa. 1972)] (stating that “a
petition is only permitted where it is ancillary to an already
pending action”). Here, the trial court dismissed the action
as not properly commenced, but then ordered that the deed
be stricken despite the absence of a properly commenced
action. Because the trial court lacked jurisdiction, we
conclude that its order was a nullity. Accord In re
Corr[ection] of Official Records with Civ[il] Action, [404
A.2d 741, 742-43 (Pa. Cmwlth. 1979)] (reversing trial
court order directing recorder of deeds to remove oil and
gas leases from public records, where trial court lacked
jurisdiction because suit was improperly commenced by
petition and rule).
In re G.J.K. & Sons, LLC, 175 A.3d 1033, 1036 (Pa. Super. 2017) (footnotes
omitted). “[B]ecause the commencement of this action was improper under
6
Pa. R.Civ.P. 1007, the court below had no power to act whatsoever and there was no
jurisdiction established over appellant. The proceeding below was a nullity.” In re
Correction of Official Records, 404 A.2d at 473 (citation omitted).11
Accordingly, the trial court’s Order is affirmed. 12
MICHAEL H. WOJCIK, Judge
Judge Dumas dissents and wishes to be so noted.
11
Indeed, as this Court has observed in a similar circumstance:
It is crystal clear from the foregoing cases, treatises cited
therein, the rules of civil procedure, and the absence of case law,
that one, who is not a named party to an action, be it an individual
action or a class action prior to its certification, cannot become a
party to an action by the simple expedience of walking into the
office of the prothonotary and filing his appearance in any one or
more of the multitude of open actions on file.
Silver Spring Township v. Pennsy Supply, Inc., 613 A.2d 108, 111 (Pa. Cmwlth. 1992); see also
Engle v. Beaver County, 754 A.2d 729, 732 (Pa. Cmwlth. 2000) (holding that a former stranger to
an action is not permitted to insert himself into proceedings at the trial level or on appeal through
a voluntary substitution by claiming that he has a similar interest or that he could have pursued a
similar action in his own right); In re Estate of Geniviva, 675 A.2d 306, 309-10 (Pa. Super. 1996)
(holding that an individual does not become a party to an action merely by filing a brief in support
of the exceptions to a decree nisi and appearance at oral argument on the exceptions); Liles v.
Balmer, 653 A.2d 1237, 1239 n.1 (Pa. Super. 1994) (holding that an individual whose name was
added to the caption on a motion for reconsideration was not a party to the action where he was
not named in the complaint, not a direct participant in the trial court proceedings, and he did not
seek permission to intervene as a party at any time during the proceedings); Harkovich v.
Pfirrmann, 627 A.2d 776, 779 (Pa. Super. 1993) (holding that a lack of in personam jurisdiction
over the plaintiffs with respect to the relief sought by the defendant in his counterclaim rendered
the judgment against the plaintiffs “absolutely void and a nullity”).
12
It is equally well settled that “‘[w]e may affirm a trial court determination under a
different rationale, where the result is correct and the basis on which we affirm is clear on the
record.’” Brown v. James, 822 A.2d 128, 131 (Pa. Cmwlth. 2003) (citation omitted).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Upset Tax Sale of Lehigh :
County Tax Claim Bureau of :
Properties Held on :
September 15, 2021 : No. 1442 C.D. 2021
:
Appeal of: Ronald L. Clever :
ORDER
AND NOW, this 3rd day of August, 2023, the order of the Lehigh
County Court of Common Pleas dated November 17, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge