Opinion
No. 1416 C.D. 2011
05-02-2012
Patti L. Jenkins a/k/a Patti L. Shee, a married woman, Appellant v. Beaver County - Tax Claim Bureau and E.D. Lewis
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Patti L. Jenkins a/k/a Patti L. Shee (Jenkins) appeals from the Beaver County Court of Common Pleas' (trial court) June 28, 2011 order granting E.D. Lewis' motion for judgment on the pleadings, dismissing Jenkins' request to set aside a judicial sale, and confirming the judicial tax sale of Jenkins' property. The sole issue presented for this Court's review is whether the trial court erred by granting E.D. Lewis' motion for judgment on the pleadings. We vacate in part, and affirm in part.
The facts of this case are not in dispute. Jenkins owned real property located at 805 Lincoln Place in Beaver Falls, Beaver County. Due to unpaid real estate taxes, on September 14, 2009, Jenkins' property was presented at an upset tax sale, but was not sold. Thereafter, the trial court granted the Beaver County Tax Claim Bureau's (Bureau) petition to proceed with a judicial tax sale. On June 10, 2010, a notice of rule to show cause concerning the judicial sale was served on Jenkins by a sheriff's deputy. On December 16, 2010, a judicial sale of Jenkins' property took place. The property was purchased by E.D. Lewis, and the deed was recorded in the Beaver County recorder of deeds' office on February 24, 2011.
On March 18, 2011, pursuant to a standing order of the trial court, Jenkins filed a request to set aside the sale, averring that she was not adequately served notice of the sale. The Bureau filed an answer to Jenkins' request. E.D. Lewis filed an answer and new matter to Jenkins' request, which detailed the manner in which notice was served and posted. The new matter specifically averred that Jenkins was served notice of the December 2010 sale on June 10, 2010, and that she did not answer the rule or otherwise object to the sale. The new matter contained a notice to plead. When Jenkins did not timely reply to the new matter, E.D. Lewis filed a motion for judgment on the pleadings. On June 2, 2011, Jenkins filed a reply to the new matter in which she admitted having been served the notice of rule to show cause concerning the judicial sale on June 10, 2010, and that she never answered it, or objected to the sale.
The standing order of the trial court, entered May 25, 2004 at No. 10949 Misc. 2004, sets forth the trial court's procedure for handling objections to real property sales for delinquent taxes. The order authorizes the filing of requests to set aside judicial sales of real property.
On June 15, 2011, the trial court heard argument on the motion for judgment on the pleadings. On June 28, 2011, the trial court granted the motion for judgment on the pleadings, dismissed Jenkins' request to set aside the sale and confirmed the sale of Jenkins' real property to E.D. Lewis. Jenkins appealed to this Court.
"Our review of a trial court's decision granting a motion for judgment on the pleadings considers whether the court committed an error of law or whether unresolved questions of material fact remain outstanding. Our scope of review is plenary." Pfister v. City of Phila., 963 A.2d 593, 596 n.7 (Pa. Cmwlth. 2009) (citation omitted). "The Court's review in tax sale cases is limited to determining whether the trial court abused its discretion, rendered a decision lacking in supporting evidence or clearly erred as a matter of law." Popple v. Luzerne Cnty. Tax Claim Bureau, 960 A.2d 517, 519 n.1 (Pa. Cmwlth. 2008).
Jenkins argues that a motion for judgment on the pleadings is not proper in a proceeding commenced by a request to set aside judicial sale of real property. We agree. Pennsylvania Rule of Civil Procedure 1034(a) (Rule 1034(a)) provides that, "[a]fter the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings." "In deciding upon a motion for judgment on the pleadings under [Rule] 1034, a court may consider only the pleadings and any documents properly attached thereto." Pfister v. City of Phila., 963 A.2d 593, 597 (Pa. Cmwlth. 2009). However, a request to set aside a tax sale is not a pleading for purposes of Rule 1034(a).
According to Pennsylvania Rule of Civil Procedure 1017(a) (Rule 1017(a)):
Except as provided by [Pennsylvania] Rule 1041.1 [of Civil Procedure] [relating to asbestos litigation], the pleadings in an action are limited toThe courts have made clear that documents not listed in Rule 1017(a) are not pleadings under the rules of civil procedure. See Jones v. Van Norman, 513 Pa. 572, 522 A.2d 503 (1987) (a pre-trial memorandum is not a permissible pleading under Rule 1017(a)); see also McCormick v. Allegheny Gen. Hosp., 527 A.2d 1028 (Pa. Super. 1987) (a letter is not a pleading under Rule 1017(a)); Marzullo v. Stop-N-Go Food Stores of Pittsburgh, Inc., 527 A.2d 550 (Pa. Super. 1987) (a motion for reconsideration is not the equivalent of a pleading under Rule 1017(a)); Equibank v. Duboy, 532 A.2d 889 (Pa. Super. 1987) (a petition to set the fair market value of real property is not a pleading under Rule 1017(a)). Although, as E.D. Lewis noted in its brief, this Court has affirmed summary disposition of tax sale cases, it has done so via summary judgment, which allows the court to review all evidence, rather than just the pleadings. See Constantino v. Carbon Cnty. Tax Claim Bureau, 895 A.2d 72 (Pa. Cmwlth. 2006).
(1) a complaint and an answer thereto,
(2) a reply if the answer contains new matter, a counterclaim or a cross-claim,
(3) a counter-reply if the reply to a counterclaim or cross-claim contains new matter,
(4) a preliminary objection and a response thereto.
Summary judgment requires an examination of the entire record. Guy M. Cooper, Inc. v. E. Penn Sch. Dist., 903 A.2d 608 (Pa. Cmwlth. 2006); see also Pa.R.C.P. No. 1035.1.
Moreover, Pennsylvania Rule of Civil Procedure 126 states in pertinent part: "The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable." However, according to Pennsylvania Rule of Civil Procedure 127(b), "[e]very rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Thus, although the rules must be liberally construed, parties may not substantially deviate from their clear provisions.
The trial court's standing order directs the filing of a request to set aside judicial sales of real estate. The document Jenkins filed was a "Request to Set Aside Judicial Sale of Real Property." Reproduced Record (R.R.) at 6a. Because a request to set aside a judicial tax sale of real estate is not included in the list of "pleadings" in Rule 1017(a), a motion for judgment on the pleadings was not an appropriate means by which to challenge its legal sufficiency.
Jenkins' assertion that Fieg v. Somerset County Tax Claim Bureau, 658 A.2d 476 (Pa. Cmwlth. 1995) controls this case has no merit. In Fieg, this Court simply footnoted: "Before the hearing took place, Cicciarelli filed a Motion for Judgment on the Pleadings; however, the trial court denied the motion as a remedy unavailable in a case commenced by a petition to disapprove a private tax sale under section 613 of the . . . Law." Id., 658 A.2d at 477 n.2. Nowhere in the opinion did this Court make a ruling on the procedure. Moreover, neither the trial court nor this Court are bound by the determination of the Court of Common Pleas of Somerset County.
Notwithstanding the trial court's improper granting of E.D. Lewis' motion for judgment on the pleadings, the trial court properly dismissed Jenkins' request to set aside and confirmed the judicial sale of her real property. In In re Tax Claim Bureau of Northampton County, Appeal of James T. Serfass, 651 A.2d 677 (Pa. Cmwlth. 1994), this Court stated:
The requirements pertaining to judicial sales are found in Sections 610 through 612[] of the [Real Estate Tax Sale] Law. Under Section 610, where the upset price of a property shall not have been bid, the Tax Claim Bureau may petition the court of common pleas to sell the property by judicial sale. 'Upon the presentation of such petition . . . the court shall grant a rule upon all parties thus shown to be interested to appear and show cause why a decree should not be made that said property be sold. . . .' 72 P.S. § 5860.610. The rule must be personally served by the sheriff. After the Court has been satisfied that the rule has been properly served and that the facts in the petition are correct, then the court decrees that the property in question be sold at a future time free of all 'tax and municipal claims, mortgages, liens, charges and estates of whatsoever kind, except ground rents, separately taxed.' 72 P.S. § 5860.612. Significantly, there is no requirement in the Law that the landowner have actual notice of the date of the judicial sale itself. It is sufficient under Section 611 that he be given notice of the Rule to Show Cause why the property shouldn't be sold by judicial sale under Section 611.Id., 651 A.2d at 679 (footnotes omitted).
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.610 - 5860.612.
Here, the trial court's June 28, 2011 order states:
Following Argument and review of all pleadings filed in this matter, the Motion for Judgment on the Pleadings filed by Respondent, E.D. Lewis, is granted. The Request to Set Aside a Judicial Sale filed by Petitioner, Patti L. Jenkins, a/k/a Patti L. Shee, is dismissed, and the Judicial Tax Sale of her real property is hereby confirmed.R.R. at 62a. In its memorandum accompanying that order, the trial court focused on the fact that Jenkins ultimately admitted that she received notice of the rule to show cause concerning the judicial sale of her property. Likewise, in its Pa.R.A.P. 1925(a) opinion, the trial court concluded that the dismissal of Jenkins' request was proper because she admitted receiving notice of the rule to show cause concerning the judicial sale of her real property. Even Jenkins, in her brief, recognized that the trial court "clearly based its decision on the admission by [Jenkins] . . . that she had been served with Notice of the Rule for Judicial Sale . . . ." Jenkins' Br. at 9. Thus, based upon Jenkins' admission that she had notice of the rule to show cause concerning the sale of her property, the trial court properly dismissed Jenkins' request to set aside and confirmed the judicial sale of her real property.
In light of this holding, this Court need not address Jenkins' claims that Pennsylvania Rules of Civil Procedure 206.1 and 206.2, and the trial court's standing order relative to tax upset sales allow only the filing of a request to set aside and an answer thereto, thereby prohibiting new matter, an accompanying notice to plead and deemed admissions. --------
Although the trial court should not have granted the motion for judgment on the pleadings, it nevertheless properly denied Jenkins' request to set aside the judicial sale and confirmed the sale of the real property. Accordingly, we vacate the portion of the trial court's order granting E.D. Lewis' motion for judgment on the pleadings, but otherwise affirm the trial court's order.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 2nd day of May, 2012, the portion of the Beaver County Court of Common Pleas' June 28, 2011 order granting E.D. Lewis' motion for judgment on the pleadings is vacated. The portion of the trial court's order dismissing Patti L. Jenkins' request to set aside a judicial sale, and confirming the judicial tax sale of the property is affirmed.
/s/_________
ANNE E. COVEY, Judge