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CURTIS BUILDING CO. v. JOSEPH L. TUNSTALL (08/12/75)

decided: August 12, 1975.

CURTIS BUILDING CO., INC., APPELLANT,
v.
JOSEPH L. TUNSTALL, JR. AND MARY E. TUNSTALL, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in case of Curtis Building Co., Inc. v. Joseph L. Tunstall, Jr. and Mary E. Tunstall, No. 5320 of 1971.

COUNSEL

Alfred O. Breinig, Jr., for appellant.

William E. Mowatt, with him Mowatt, McErlean, Pinto, Theodore & Rubin, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 21 Pa. Commw. Page 82]

This appeal by Curtis Building Co., Inc. (Curtis) is from an order of the Court of Common Pleas of Delaware County dismissing Curtis's action to quiet title to and obtain possession of certain lands purchased through a tax sale for delinquent taxes.

Joseph L. Tunstall, Jr., and Mary E. Tunstall, appellees, purchased the premises in question, their current residence, in 1950. The property's estimated current value is $23,500, subject to a $4,000 mortgage. Evidence was introduced establishing the full payment of taxes for the years of 1961, 1962, 1963, 1964, 1965, 1967, 1968, 1969, 1970, and 1971 by the mortgagor, Havertown Savings and Loan Association, and its successor, Penn Federal Savings and Loan Association (Penn Federal). A representative of Penn Federal was not able to explain its failure to pay the 1966 taxes, although he did admit to the normal escrowing of appellees' funds for the purpose

[ 21 Pa. Commw. Page 83]

    of such payment. On October 28, 1968, Curtis purchased the property at a treasurer's tax sale. The consideration was $424.

At the hearing before the lower court, Curtis presented as its only evidence the unrecorded treasurer's deed of October 28, 1968. In addition to the testimony of the Penn Federal witness, appellees' only evidence was the testimony of Mr. Tunstall concerning his not having received any statutory notice. No other evidence or testimony was presented by either side.

We are therefore called upon to decide the narrow question of compliance with statutory notice to appellees and the necessarily interdependent issue of where, at trial, the burden of proof rests in an action to quiet the title to land purchased at a treasurer's tax sale. After carefully reading the very limited record before us, we are compelled to reverse.

Setting the stage for our decision is Section 602 of the Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. ยง 5860.602, which, at the time of the tax sale, provided in pertinent part:

"[N]notice of the sale shall also be given by the bureau, at least ten (10) days before the date of the sale, by United States registered mail, personal addressee only, return receipt requested, postage prepaid, to each ...


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