Opinion
No. 212 C.D. 2012
10-02-2012
In Re: Upset Tax Sale of September 15, 2010 Joanne Thompson v. Monroe County Tax Claim Bureau and All State Asset Management, LLC Appeal of: All State Asset Management, LLC
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
All State Asset Management, LLC (Purchaser) appeals from the Order of the Court of Common Pleas of Monroe County (trial court) setting aside the upset tax sale at which Purchaser acquired a single family residential property known as Lot 140, Section 2, Tunkhannock Trails (Property), which was owned and occupied by Joanne Thompson (Thompson). The trial court set aside the sale after concluding that the Monroe County Tax Claim Bureau (Bureau) neither obtained the required personal service by sheriff nor petitioned the trial court to waive such requirement for good cause shown, pursuant to Section 601(a)(3) of the Real Estate Tax Sale Law (RETSL), 72 P.S. § 5860.601(a)(3). Purchaser argues that the trial court erred in setting aside the upset tax sale because Thompson waived the issue of the Section 601(a)(3) requirement of personal service/notice for an "owner occupant" when she failed to specify that section of the RETSL in her Petition to Set Aside Upset Tax Sale (Petition), Pre-hearing Memorandum, or at the hearing. Because we find that Thompson did not waive the issue, we affirm.
Act of July 7, 1947, P.L. 1368, as amended. Section 601(a)(3) of the RETSL provides, in relevant 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 . . . . The sheriff . . . shall make a return of service to the [B]ureau . . . setting forth the name of the person served, the date and time and place of service, and attach a copy of the notice which was served. 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 court of common pleas to waive the requirement of personal notice for good cause shown.72 P.S. § 5860.601(a)(3).
Section 102 of the RETSL defines "Owner Occupant" as "the owner of a property which has improvements constructed thereon and for which the annual tax bill is mailed to an owner residing at the same address as that of the property." 72 P.S. § 5860.102.
Thompson filed her Petition on December 20, 2010. After a hearing on the matter was held on December 19, 2011, the trial court issued an opinion and order, dated January 12, 2012, that set aside the upset tax sale, required Thompson to pay the amount of the upset price and costs to the Bureau, and ordered the Bureau to refund the bid payment to Purchaser. (Trial Ct. Order.) The trial court cited Tracy v. Chester County Tax Claim Bureau, 507 Pa. 288, 297, 489 A.2d 1334, 1339 (1985), Fernandez v. Tax Claim Bureau of Northampton County, 925 A.2d 207, 212 (Pa. Cmwlth. 2007), Rivera v. Carbon County Tax Claim Bureau, 857 A.2d 208, 214 (Pa. Cmwlth. 2004) and Huhn v. Chester County, 328 A.2d 906, 908 (Pa. Cmwlth. 1974) to explain that the RETSL was not intended as a punishment of taxpayers or as a means to strip away a citizen's property rights, but as a protection for "local government against willful, persistent, [and] long-standing delinquencies in the collection of taxes." (Trial Ct. Op. at 4 (quoting Rivera, 857 A.2d at 214).) Pointing to the necessity of strict compliance with the notice requirements to guard against deprivation of property without due process, the trial court stated that a defect in any one of the required notices renders the sale void. (Trial Ct. Op. at 5.) The trial court explained that where the property is owner occupied, Section 601(a)(3) of the RETSL requires the Bureau to attempt personal service upon the owner occupant unless the Bureau petitions the court for a waiver of the personal service requirement for good cause shown. Finally, the trial court concluded that, because Thompson was an owner occupant and no personal service was obtained upon her, the sale must be set aside because the Bureau did not seek a waiver of the personal service requirement for good cause shown in accordance with Section 601(a)(3) of the RETSL. (Trial Ct. Op. at 8.) Purchaser now appeals to this Court.
In Tracy, our Supreme Court stated:
Somehow, over the years, taxing authorities have lost sight of the fact that it is a momentous event under the United States and the Pennsylvania Constitutions when a government subjects a citizen's property to forfeiture for the non-payment of taxes. We have had occasion before to note that we hold no brief with willful, persistent and long standing tax delinquents, but at the same time, we have also observed that the "strict provisions of the [RETSL] were never meant to punish taxpayers who omitted through oversight or error . . . to pay their taxes." Ross Appeal, 366 Pa. 100, 107, 76 A.2d 749, 753 (1950). As this Court stated in Hess v. Westerwick, "the purpose of tax sales is not to strip the taxpayer of his property but to insure the collection of taxes." 366 Pa. 90, 98, 76 A.2d 745, 748 (1950). The collection of taxes, however, may not be implemented without due process of law that is guaranteed in the Commonwealth and federal constitutions; and this due process, as we have stated here, requires at a minimum that an owner of land be actually notified by government, if reasonably possible, before his land is forfeited by the state. Reasonable efforts to effect actual notice were not carried out in this case, and the tax sale of this property must be set aside.
The Bureau took the following steps to comply with the RETSL's notice requirements: (1) it sent the notice via certified mail return receipt requested to Thompson at P.O. Box 65, Long Pond, PA 18334, which was returned unclaimed; (2) it searched various records and the internet and found the 1635 Tunkhannock Trail, Long Pond, PA 18334-9714 address for Thompson, which also was in the Bureau's records; (3) it sent the notice via first class mail to Thompson at the 1635 Tunkhannock Trail address, but there was no indication that it was returned to the Bureau; (4) it posted the Property with a notice of the sale on July 13, 2010; (5) it unsuccessfully attempted to personally serve Thompson with notice of the tax sale three times at her home, 1635 Tunkhannock Trail, i.e., the Property, and, after the third attempt on August 30, 2010, posted the Property with a notice of the sale; and (6) it published notice of the tax sale in the Pocono Record and the Monroe Legal Reporter. (Trial Ct. Op. Findings of Fact ¶¶ 3-4, 7-12.)
"Our standard of review in tax sale cases is limited to determining whether the trial court abused its discretion, rendered a decision with a lack of supporting evidence, or clearly erred as a matter of law." Sabbeth v. Tax Claim Bureau of Fulton County, 714 A.2d 514, 517 n.3 (Pa. Cmwlth. 1998).
On appeal, Purchaser argues that Thompson did not properly raise the issue that she was an owner occupant for whom personal service by sheriff was required, pursuant to Section 601(a)(3), in her Petition, Pre-hearing Memorandum, or at the hearing, citing Department of Transportation, Bureau of Traffic Safety v. Reott, 424 A.2d 991, 992 (Pa. Cmwlth. 1981) (noting that "[a] trial court errs when it rules on an issue not presented to it") and Fenderson v. Fenderson, 685 A.2d 600, 604 (Pa. Super. 1996) (same).
It is the general rule that an issue not raised before a trial court is waived. In re Dauphin County Tax Claim Bureau, 834 A.2d 1229, 1233 (Pa. Cmwlth. 2003). However, in this case, Thompson's Petition avers that "[t]he tax sale was not in conformity with the Pennsylvania tax sale law" because "[t]he [n]otice requirements as set forth in 72 P.S. [§] 5860, et seq., were not complied with" and "[t]he sale was conducted in violation of the provisions of the [RETSL]." (Petition ¶¶ 6-7, R.R. at 6a.) The Petition further avers that the Bureau "had another address for [Thompson] contained within its files." (Petition ¶ 5, R.R. at 5a.) Thus, the Petition alerted Purchaser that there was an issue regarding whether there was compliance with the notice required by the RETSL and the location or address at which the Bureau attempted to notify Thompson. Thompson's Pre-hearing Memorandum provides that: the Notice of Tax Sale was mailed to Thompson at a post office box address on May 26, 2010, but was returned to the Bureau unclaimed and marked "unable to forward"; that a Notice of Tax Sale "was sent by certified mail on July 20, 2010, to a post office box address" but it was returned as unclaimed and undeliverable; and the Bureau performed a search that identified another home address for Thompson, mailed the notice to that address on July 22, 2010, and acknowledged that Thompson did not receive that notice. (Thompson's Pre-Hearing Memorandum at 1-2, R.R. at 14a-15a.) Thompson's Pre-hearing Memorandum additionally provides that the Bureau was well aware of Thompson's home address because it was within the Bureau's own files all along. (Thompson's Pre-Hearing Memorandum at 2, R.R. at 15a.) Thus, Thompson's Pre-hearing Memorandum confirms that the issue of the legal sufficiency of the notice required under the RETSL was preserved and not waived in this case.
Thompson's home address that was within the Bureau's files was the address on her Pennsylvania driver's license, which was attached to agreements entered into between the Bureau and Thompson in 2008 and 2009 for the payment of real estate taxes. --------
Finally, at the hearing, Thompson testified that she received notice that taxes were due, but not that the Property would be sold. (Hr'g Tr. at 7, 11, R.R. at 78a, 82a.) Thompson testified to past and present problems receiving her mail at both her post office box address and her home address, for which she provided specific examples in exhibits that were admitted into evidence. (Hr'g Tr. at 7-11, 14, R.R. at 78a-82a, 85a.) When asked "[w]here do you reside?" Thompson responded, in the past tense, that "I resided at 1635 Tunkhannock Trail, Long Pond, PA 18334"—the address on her driver's license—and explained that she was presently homeless and staying with her daughter in New York because her property had been sold without her knowledge. (Hr'g Tr. at 7, 9, 11, R.R. at 78a, 80a, 82a.) Thompson further acknowledged that she provided the Bureau with a copy of her driver's license in 2008 and 2009 when she entered into agreements with the Bureau, and that her home address appeared on the face of her driver's license. (Hr'g Tr. at 11-12, R.R. at 82a-83a.) Thus, the hearing testimony clearly revealed that whether the tax sale notice of Thompson's home was ever received by her or properly served upon her pursuant to the RETSL was at issue.
Even Purchaser acknowledged in its Answer that the Bureau "had another address" for Thompson other than the post office box address, which was the address on Thompson's valid Pennsylvania driver's license. (Answer ¶ 5, R.R. at 8a.) And, Purchaser's Pre-trial Memorandum acknowledged that "[i]n their Petition, Petitioners have . . . challenged the personal service of the Notice of Tax Sale upon them." (Purchaser's Amended Pre-trial Memorandum ¶ 4, R.R. at 11a (emphasis added).) Purchasers further admitted that the Bureau's record disclosed that Thompson's 2008 and 2009 agreements with the Bureau for the payment of taxes also included a copy of her valid Pennsylvania driver's license showing her home address. (Purchaser's Amended Pre-trial Memorandum ¶ 4, R.R. at 12a.) Finally, Purchaser acknowledged that the Bureau attempted to personally serve Thompson three times, which occurred at the 1635 Tunkhannock Trail address, and then posted the Property after the third attempt of personal service. (Purchaser's Amended Pre-trial Memorandum ¶ 4, R.R. at 12a.)
The Bureau, not Thompson, had the burden of proving compliance with the statutory notice provisions in this tax sale case. Geier v. Tax Claim Bureau of Schuylkill County, 570 A.2d 134, 136 (Pa. Cmwlth. 1990). Although, "[a]rguably, the preferred practice is to identify each deficiency with specificity," in the context of the averments, admissions and testimonial evidence presented in this case, we conclude that the trial court did not err in setting aside the tax sale when it determined that: (1) personal service was deficient; and (2) the Bureau did not seek a waiver of the personal service requirement for good cause shown in accordance with Section 601(a)(3) of the RETSL. In re Dauphin County Tax Claim Bureau, 834 A.2d at 1233.
For the foregoing reasons, we affirm the Order of the trial court.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, October 2, 2012, the Order of the Court of Common Pleas of Monroe County in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
Tracy, 507 Pa. at 297, 489 A.2d at 1339 (omission in original).