Evidentiary Hearing Required in Upset Tax Sale Challenge

by Cozen O'Connor

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that the tax claim bureau failed to provide adequate notice of the judicial sale because notice was served at an outdated address.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.

© Cozen O'Connor | Attorney Advertising

Written by:

Cozen O'Connor

Cozen O'Connor on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.