Evidentiary Hearing Required in Upset Tax Sale Challenge

by Cozen O'Connor
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A divided Commonwealth Court panel vacated an order of the Court of Common Pleas of Lackawanna County dismissing a property owner’s (Pascal) set aside petition to void the judicial sale of her property and remanded the case for an evidentiary hearing. In re Sale of Real Estate by Lackawanna County Tax Claim Bureau, No. 1786 C.D. 2013, (Pa. Commw. May 14, 2014).

Pascal owed real estate taxes on property located in Scranton, Pa., which was subject to tax upset sale. The property failed to sell and under Section 610 of the Real Estate Tax Sale Law (RETSL), the tax claim bureau petitioned the Court of Common Pleas to subject the property to a judicial sale. 72 P.S. § 5860.610. At judicial sale, the property was sold to the highest bidder free and clear of all tax and municipal claims, mortgages, liens and charges on estates, except state tax ground rents under Section 612(a) of the RETSL. 72 P.S. § 5860.612(a).

Pascal filed objections to void the sale alleging that the tax claim bureau violated the RETSL’s notice provision because it failed to provide adequate notice of the upset sale and did not properly post the property prior to the upset sale. In addition, she further alleged that the tax claim bureau failed to provide adequate notice of the judicial sale because notice was served at an outdated address. In her brief, Pascal acknowledged that certified mail notice of the upset sale was sent and notice was posted on the property; however, she contended that the tax claim bureau did not provide proof of mailing by first class mail and that the posting on the front porch was inadequate to advise of the upset sale. For the judicial sale, Pascal’s brief noted that service was made on her mother, but such notice was inadequate as required by law. Pascal’s brief indicated that her address changed prior to the upset sale and that English was not her mother’s primary language and that her mother never informed her of the notice of the upset sale. Rather than holding a hearing on the merits of the claims, the trial court directed the parties to filed briefs in support of their respective positions. Relying on the briefs and exhibits, the trial court held that the tax claim bureau complied with the notice provisions and it sustained the judicial sale dismissing Pascal’s petition. In addition, the trial court found that Pascal had actual notice of the upset tax sale as she contacted the tax claim bureau and agreed to a payment plan.

On appeal, the majority of the panel held that the trial court lacked supporting evidence for its decision. The panel stated that the facts recited in the briefs were not part of the record and could not serve as a basis for the trial court’s decision citing Erie Indemnity Co. v. Coal Operators Casualty Co., 272 A.2d 465, 466-467 (Pa. 1971). As a result, the panel was reversed and the case was remanded for an evidentiary hearing on the merits.

The dissenting judge indicated there were no contested facts and that there was no need to hold any evidentiary hearing. The judge pointed out that Pascal failed to point to any specific issue of fact on which the trial court erred. The judge further noted that Pascal even acknowledged the certified mail notice of the upset sale was sent and notice of sale was posted on the property. The judge did point out that the trial court found that not only had the Bureau complied with the notice provisions, Pascal had actual notice of the upset tax sale as a result of her June, 2012 contact with the tax claim bureau and agreement to a payment plan to pay the outstanding real estate taxes. Citing Cruder v. Westmoreland County Tax Claim Bureau, 861 A.2d 411, 415 (Pa. Commw. 2004), the judge concluded that full compliance with the notice provisions was not necessary under those circumstances as Pascal’s contacting the tax claim bureau and negotiated a payment plan barred Pascal’s claim. Under Cruder, the court determined that an agreement to resolve the outstanding balance demonstrated implied actual notice of the impending tax sale and rendered strict compliance with the notice requirements waived.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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