Opinion
No. 1607 C.D. 2011
10-01-2012
In Re: Petition to Reverse Tax Sale on 1124 Sterling Avenue Linwood, PA 19061 Appeal of: Terry E. Silva
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Terry E. Silva appeals an order of the Court of Common Pleas of Delaware County (trial court) denying her petition to set aside an upset tax sale of her property to Steve Fitzgerald, LLP (Purchaser). Silva contends that the tax sale must be set aside because the Delaware County Tax Claim Bureau (Bureau) did not follow the statutory procedures for giving notice of a tax sale. Concluding that the Bureau failed to prove that it gave Silva notice of its upset sale of Silva's property, we reverse.
Purchaser has filed a brief with this Court, but the Bureau has not.
On September 15, 2010, Silva's property at 1124 Sterling Avenue, Linwood, Pennsylvania, was sold because the 2008 taxes on the property were not paid. However, the 2009 taxes were paid. Silva did not receive notice of the sale until October 1, 2010, at which point she filed a petition to set aside the tax sale. The trial court conducted a hearing.
At the hearing, the Bureau explained the background to the upset sale and the procedures it followed. Karen Duffy, the upset price sale coordinator for the Bureau, explained that when Silva did not pay the 2008 township taxes on the property, the Bureau sent her a notice of delinquency. The delinquency notice, sent in 2009, was addressed to Silva, c/o Kira Management, Inc., P.O. Box 715, Marcus Hook, Pennsylvania and was signed by Audrey Quigley. When the taxes remained unpaid, the Bureau went forward with a tax sale. Duffy testified that the notice of the upset tax sale was posted on the property on August 17, 2010, and was published in the local newspaper and legal journal. Two upset tax sale notices, directed to Silva and Kira Management, were sent by certified mail to the Marcus Hook address. Both notices were returned as unclaimed by the United States Postal Service.
When the notices were returned unclaimed, the Bureau did an investigation to verify that it had used the correct mailing address. It searched the local telephone directories and property deeds, as well as its file, which included a letter from Silva. The letter, dated August 14, 2008, stated that notices for tax bills for the three properties she owned in the County should be sent to the Marcus Hook address. The Bureau concluded that the Marcus Hook mailing address was correct.
On August 18, 2010, two additional upset tax sale notices were sent by first-class regular mail; one was addressed to Kira Management and the other to Silva. Duffy offered a statement from the post office that the Bureau paid for 3,619 pieces of first-class mail on August 18, 2010. An attachment listed Silva and Kira Management at the Marcus Hook address as among the recipients of those 3,619 pieces of mail. Reproduced Record at A141 (R.R. ___).
On October 1, 2010, notice that the property had been sold was sent to Silva at the Marcus Hook Address. That notice was delivered; Silva's secretary, Samantha Kenney, signed the certified mail return receipt card.
Silva testified. She explained that she is a practicing attorney, has a law office in Delaware County and lives in a neighboring township. Her home address and telephone number are published in the telephone directory, as is the address and phone number of her law office. Silva testified that she was well known in the area and to people at the courthouse. In short, it should have been a simple matter for the Bureau to find her.
Silva testified that she did not receive any notice of the scheduled sale of the property, which was rented at the time. Silva was in the process of evicting the tenant when the sale took place. She believed the tenant took the posted notice and hid it from her.
Silva explained that her secretary, Audrey Quigley, had apparently signed for the 2008 tax delinquency notice sent in 2009 but never gave it to her. Silva could not explain why the notices sent by certified mail were returned unclaimed. She explained that her mother had died during the summer of 2010 and her father was hospitalized. As a result, she did not pick up any mail at the post office for a long period of time. She acknowledged, however, that she had directed the Bureau to send tax bills to Kira Management at the Marcus Hook address. Silva explained that the company manages her rental properties.
The trial court held that the Bureau complied with the statutory notice requirements. It further concluded that the Bureau conducted a reasonable investigation as to Silva's whereabouts. The tax bills sent to the Marcus Hook address for the 2009 county, township and school taxes were all received and paid, which proved that the Bureau was using the correct mailing address.
Silva appealed the trial court's order and raises two issues for our review. First, she claims the Bureau failed to comply with the statutory notice provisions regarding proof of its first-class mailings of the tax sale. Second, she contends the Bureau made no effort to find an alternate mailing address, as required by the statute, when the certified letters to her went unclaimed.
Our review is limited to a determination of whether the trial court rendered a decision without supporting evidence, erred as a matter of law or abused its discretion. Pitts v. Delaware County Tax Claim Bureau, 967 A.2d 1047, 1052 n.8 (Pa. Cmwlth. 2009).
We begin with the relevant law regarding upset tax sales. Section 602(a), (e)(1) and (2) of the Real Estate Tax Sale Law (Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.602, provides in pertinent part:
(a) At least thirty (30) days prior to any scheduled sale the bureau shall give notice thereof, not less than once in two (2) newspapers of general circulation in the county, if so many are published therein, and once in the legal journal, if any, designated by the court for the publication of legal notices. Such notice shall set forth (1) the purposes of such sale, (2) the time of such sale, (3) the place of such sale, (4) the terms of the sale including the approximate upset price, (5) the descriptions of the properties to be sold as stated in the claims entered and the name of the owner.
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(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
72 P.S. § 5860.602 (a), (e)(1) and (2). These statutory notice provisions are strictly construed to prevent the deprivation of property without due process. Donofrio v. Northampton County Tax Claim Bureau, 811 A.2d 1120, 1122 (Pa. Cmwlth. 2002). The Bureau has the burden of proving compliance with the notice provisions. Casaday v. Clearfield County Tax Claim Bureau, 627 A.2d 257, 258 (Pa. Cmwlth. 1993).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.
The "formal requirements of Section 602 [of the Law]" need not be followed when the property owner has received actual notice of the upset tax sale. Donofrio, 811 A.2d at 1122.
In her first issue, Silva contends that the Bureau failed to prove that it sent her notices by first-class mail after the certified mailings were returned unclaimed. Section 602(e)(2) of the Law required the Bureau to send a second notice by first-class mail and provide proof of such mailing when its certified mail was returned. In re York County Tax Claim Bureau, 3 A.3d 765, 769-70 (Pa. Cmwlth. 2010), established that proof of first-class mailing requires a certificate from the United States Postal Service. The Bureau presented no such evidence.
In response, Purchaser argues that the Bureau's notice was sufficient because it followed Silva's mailing directions. Purchaser also argues that Silva had actual notice of the pending sale because the notice of her 2008 tax delinquency, sent in 2009, was received and signed by her secretary. We reject Purchaser's latter argument because the notice of a tax delinquency is not a substitute for the statutory notice of a scheduled upset tax sale. Id. at 768.
We consider, then, Silva's claim that the Bureau did not shoulder its burden of proving that it gave notice by first-class mail. In re York is instructive and dispositive.
In that case, the bureau sent notice of a scheduled upset tax sale by certified mail, return receipt requested. When the notice was returned unclaimed, the bureau sent a second notice by first-class mail. To prove the first-class mailing, the bureau produced a document from its files showing a hand-written notation that notice had been sent by first-class mail. The trial court determined that the bureau's evidence was not sufficient.
On appeal, this Court addressed, as a matter of first impression, what proof of first-class mailing is required to satisfy Section 602(e)(2) of the Law. We concluded that the only appropriate evidence is "a certificate of mailing (also known as USPS Form 3817)." Id. at 770. Stated otherwise, "'proof of mailing' refers only to a USPS certificate of mailing," not an internal record. Id. Because the bureau did not present such evidence, we affirmed the order of the trial court.
More recently, in Horton v. Washington County Tax Claim Bureau, 44 A.3d 710 (Pa. Cmwlth. 2012), we again addressed the question of what evidence is needed to prove a first-class mailing. There, the bureau presented a post office statement showing that 1,913 letters had been sent by first-class mail on the relevant date, with an attachment listing the property owners to whom the letters were sent. The bureau also provided photocopies of the envelopes and notices first sent by certified mail and returned unclaimed. The trial court concluded that this evidence was not sufficient given our ruling in In re York.
On appeal to this Court, the purchaser of the property argued that the case was distinguishable from In re York because the bureau had provided more than a handwritten record from its files; rather, it provided a statement and attachment from the post office showing when and where a notice was mailed. We disagreed, holding that "the statutory 'proof of mailing' can only be satisfied by a USPS certificate of mailing" issued on Form 3817. Horton, 44 A.3d at 714-15.
Noting that the decision in In re York was issued after the upset tax sale, the Bureau did not know that it would be obligated to provide a certificate of mailing when it sent its notice.
Here, the Bureau offered the very evidence submitted in Horton and found inadequate: a statement from the post office showing the purchase of postage for first-class letters with an attachment listing the recipients. Based on Horton, the Bureau's evidence did not prove compliance with Section 602(e)(2) of the Law.
After the hearing, the Bureau submitted an additional document to the trial court. This document is the back side of the post office statement regarding the postage paid for 3,619 letters. The back of the statement contains a post office stamp dated August 18, 2010, and a handwritten notation indicating "3619 Mail Pieces Verified." Original Record at 8. While not raising the issue in her statement of questions on appeal, in the argument portion of her brief Silva states that the trial court erred in accepting this evidence. Because this evidence is not a post office certificate of mailing, it is irrelevant and will not be addressed further.
As an additional matter, Silva has filed a motion to strike material appended to Purchaser's brief that she asserts is dehors the certified record, inadmissible hearsay and irrelevant. The first attachment, Appendix A, is the return receipt for the notice the Bureau sent to Silva on October 1, 2010, that her property had been sold. The second attachment, Appendix B, is a letter sent to the Bureau on Silva's letterhead and signed by Kenney. The attachments were used to prove that Kenney worked for Silva and that Silva received notice of the sale after it took place. These points were never in dispute. More critically, Appendices A and B are not part of the certified record and will be stricken.
Because the Bureau did not meet its burden of proving that it gave notice to Silva by first-class mail, we reverse the trial court and set aside the sale of her property at 1124 Sterling Avenue.
As we find Silva's first issue dispositive, we do not address her remaining issue. --------
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 1st day of October, 2012, Silva's motion to strike extraneous material appended to the brief of Steve Fitzgerald, LLP is GRANTED and the order of the trial court denying Silva's petition to set aside an upset tax sale is hereby REVERSED.
The September 15, 2010, sale of the property at 1124 Sterling Avenue, Linwood, PA, is hereby SET ASIDE and the tax sale deed to Steve Fitzgerald, LLP, VACATED.
/s/_________
MARY HANNAH LEAVITT, Judge