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AURITT v. WHEATCROFT

January 8, 1974

Herbert and Esther AURITT
v.
R. WHEATCROFT et al.


Hannum, District Judge.


The opinion of the court was delivered by: HANNUM

Presently before this Court is the defendants' motion for summary judgment pursuant to Rule 56, Fed. R. Civ. P. 28 U.S.C. To deal with the legal issues raised herein a detailed chronology of events underlying this controversy is required.

 CHRONOLOGY OF EVENTS

 On September 9, 1968, the Tax Claim Bureau of Montgomery County sold the premises located at 75 McFadden Drive, Huntingdon Valley, Abington Township, Montgomery County, Pennsylvania, to one R. Wheatcroft. *fn1" Prior thereto the owners of record were Herbert and Esther Auritt, tenants by the entireties. *fn2" Although the sale was held to satisfy $1,553.82 in delinquent taxes for the years 1966 and 1967, $2,326.05 plus $13.00 costs was obtained. *fn3"

 On December 31, 1968 the Auritts filed in Montgomery County Court of Common Pleas a petition to have the sale invalidated. The petition was answered and evidence was received by deposition. The petitioners alleged that the sale should be set aside because (1) the notice provisions of the Real Estate Tax Sale Law, the Act of July 7, 1947, P.L. 1368, 72 P.S. ยง 5860.602, were not observed by the local Tax Claim Bureau and (2) the purchase price extracted at the sale was grossly inadequate. *fn4" The Court held (in an opinion by Judge Ditter, now United States District Court Judge for the Eastern District of Pennsylvania) that the sale was proper and must be confirmed. *fn5" Strict compliance with the Real Estate Tax Sale Law was shown and inadequacy of the price as it related to the value of the property was not shown; nor was the latter found to be relevant to defeat an otherwise proper tax sale. *fn6"

 On June 3, 1971 the Commonwealth Court, in an opinion by Judge Kramer, affirmed the lower court's decision. *fn7" The Commonwealth Court found these facts: *fn8"

 
"1. Notice by certified mail that the 1966 property taxes on the Auritt property were delinquent was received in June of 1967. The receipt was signed by Fannie Goldman, mother of Mrs. Auritt (appellant).
 
2. Notice by certified mail that the 1967 property taxes on the Auritt property were delinquent was received on June 14, 1968. The receipt was signed by Mrs. Esther Auritt (wife-appellant).
 
3. A copy of the Application for Registration or Certification stamped by the Post Office Department was introduced. This sheet listed all letters sent via registered mail on July 9, 1968, by the Tax Claim Bureau of Montgomery County. Among the entries were two pertinent to this case. One showed a letter sent to Mr. Auritt at his business address, and one showed a letter sent to Mr. and Mrs. Auritt at their home address. An employee of the Bureau testified that all of the addresses on the sheet introduced were recipients of upset-sale notices.
 
4. The upset-sale notices mentioned in "3" above were sent by registered mail, "return reply requested". As to whether the instruction "deliver to addressee only" was included on the companion receipt card is a matter of contention among the parties. It is known by clear evidence that the letter sent to Mr. Auritt at his business address bore the instruction "deliver to addressee only". This is known because the actual companion card sent with the letter was returned to the Bureau and bore the "deliver to addressee only" instruction. This letter addressed to Mr. Auritt at his business was accepted and signed for by the employee of a neighbor merchant. By prearrangement, from time to time, Mr. Auritt's mail was accepted for him by other merchants in his absence.
 
5. The required posting had been satisfied as shown by the poster's signature on the affidavit and return of posting. The posting occurred on July 30, 1968."

 In addition, the Commonwealth Court found that there was compliance with the notice provisions of the Real Estate Tax Sale Law, and concluded:

 
"We are of the opinion that the notice sent to the Auritt home constitutes valid notice affording proper protection of their due process rights. ...

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