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JOHNSON v. KELLY

July 11, 1977

DORIS E. JOHNSON, et al.
v.
ROBERT F. KELLY, et al.



The opinion of the court was delivered by: DITTER

 I. Introduction

 This suit challenges certain tax sales conducted in Delaware County, Pennsylvania, pursuant to the County Return Act, Act of May 29, 1931, P.L. 280, as amended, 72 P.S. § 5971a et seq. The primary constitutional challenges to the Act are that it violates due process: (1) by failing to provide for a prior judicial determination of alleged delinquent property taxes before the tax sale is conducted and (2) by failing to require notice by personal service to the owner prior to sale. *fn1" Although brought in one complaint the suit actually is three separate controversies involving three separate properties. *fn2" The plaintiffs are two individuals and a couple each of whom owned one of the properties in question; the defendants are the two companies who purchased the properties and the prothonotary of the Delaware County Court of Common Pleas. The relief sought on behalf of the named plaintiffs and a class they seek to represent *fn3" includes, inter alia, (1) a declaratory judgment that the County Return Act is unconstitutional and that the tax sales in question are void, (2) an injunction preventing the defendants from commencing or proceeding with actions to quiet title to properties purchased at tax sales conducted pursuant to the Act, and (3) an injunction preventing the prothonotary of the Delaware County Court of Common Pleas from accepting quiet title actions brought by purchasers of properties sold at tax sales conducted pursuant to the Act. *fn4"

 Upon filing this suit plaintiffs sought a temporary restraining order to prevent the imminent eviction of plaintiff Johnson and to enjoin the continuance of quiet title actions against plaintiffs Massey and the Tunstalls. By order of October 31, 1975, I denied the restraining order substantially for the reasons expressed later in this opinion, but counsel for the defendants agreed to proceed no further with the eviction or quiet title actions pending my final disposition of this matter. I also ordered the preliminary injunction motion consolidated with a hearing on the merits, directed the parties to submit a stipulation of uncontested facts, and requested briefs on the abstention issues, the request for class certification, and the merits of the constitutional challenge. Thereafter the parties filed comprehensive stipulations covering most of the relevant facts and I heard testimony over several days on the points in dispute.

 II. Factual Setting

 A. Doris E. Johnson v. Grace Building Co.

 Doris Johnson is an adult who resides at 155 North Ninth Street, Darby Borough, Delaware County, Pennsylvania. On October 27, 1969, this property was sold at a Delaware County Treasurer's Tax Sale for nonpayment of 1967 taxes. Although the fair market value at that time was approximately $10,000., defendant, Grace Building Company, purchased the property for $198.31. The record owner was Central Penn National Bank which held the property as trustee for Irene A. Worlds, the aunt of Mrs. Johnson. Mrs. Worlds had conveyed the property to Central Penn as trustee on January 20, 1965, and from 1965 until her death, Mrs. Worlds had lived with Mrs. Johnson in Camden, New Jersey. Although Mrs. Worlds died in 1968 leaving a will which named Mrs. Johnson as her sole heir, this will was not admitted to probate until November 18, 1969, after the tax sale.

 As required by 72 P.S. § 5971g, prior to the tax sale the treasurer's office of Delaware County provided notice by publication and by certified mail to Central Penn. The certified mail notice was received by Central Penn on August 11, 1969, as reflected by the return receipt. Central Penn in turn forwarded this notice to Mrs. Johnson by regular mail letter dated August 18, 1969, but Mrs. Johnson has no recollection of receiving this letter and she did not see the published notice. Although not required by the statute, in accordance with its customary practice, in November, 1969, the treasurer's office notified Central Penn by regular mail of the sale of the property on October 27, 1969, and of the two-year right of redemption, i.e., that at any time for two years following the sale the property could be reclaimed by paying the delinquent taxes and certain costs. This notice was received by Central Penn as evidenced by a copy found in its files. Central Penn in turn forwarded this notice to Mrs. Johnson and her attorney by regular mail letters dated November 13 and 14, 1969, respectively, but again Mrs. Johnson has no recollection of receiving these letters.

 After the completion of probate proceedings of Mrs. Worlds' will, Central Penn conveyed all its title in the property (which at this point amounted only to a right of redemption) to Mrs. Johnson by deed dated August 10, 1970. Thereafter, on August 7, 1971, Mrs. Johnson moved into the property and has continued to reside there.

 Grace filed a complaint to quiet title and for possession of the premises in question against Mrs. Johnson on January 24, 1972, in the Court of Common Pleas of Delaware County. Although personal service of the complaint was made on Mrs. Johnson on February 1, 1972, she did not file an answer or in any way defend and on May 31, 1972, final judgment by default was entered against her. The instant suit was commenced by Mrs. Johnson and the other plaintiffs on October 31, 1975. *fn6" Plaintiffs' counsel did not learn that the default judgment had been entered until after the complaint sub judice was filed. He has since filed a petition to have the default judgment opened, *fn7" which is pending in the Delaware County Court of Common Pleas.

 Mr. and Mrs. Tunstall are adults who reside at 67 Upland Road, Havertown, Delaware County, Pennsylvania. On May 31, 1961, the Tunstall's mortgaged this property to Havertown Savings and Loan Association, which has since merged with Penn Federal Savings and Loan Association, Inc. The mortgage provided for the customary escrowing arrangement whereby monthly payments including principal, interest and taxes were forwarded to the mortgagee which in turn was responsible for paying the property taxes each year. Accordingly, tax bills received by the Tunstalls were forwarded to Penn Federal.

 Except in 1964 when they apparently had some difficulty, the Tunstalls have made their mortgage payments, including taxes, to the mortgagee since 1961. *fn8" As far as appears herein, with the exception of 1966, tax bills received by the Tunstalls for each year from 1961 to at least 1971 were forwarded to the mortgagee which paid them. For some unexplained reason taxes for the year 1966 allegedly were not paid. *fn9"

 Because of the nonpayment of 1966 taxes, the property in question was sold at treasurer's tax sale on October 28, 1968. Defendant Curtis Building Company purchased it for $424.44, subject to the balance of the Penn Federal mortgage, approximately $4,000. The property's fair market value as of the commencement of the instant lawsuit was approximately $30,000.

 As required by Section 5971g, prior to the tax sale the treasurer's office provided notice by publication and by certified mail to the Tunstalls, the record owners. The certified mail notice was addressed to the Tunstalls at 67 Upland Road, Havertown, Pennsylvania, and the return receipt bears the signature "Mary E. Tunstall" and is dated August 6, 1968, but neither Mr. nor Mrs. Tunstall have any recollection of receiving it nor did they see the published notice. In accordance with its customary procedures on November 13, 1968, the treasurer's office notified the Tunstalls via regular mail that their property had been sold on October 28, 1968, and of their two-year right of redemption. Again, the Tunstalls have no recollection of receiving this notice.

 Curtis filed a complaint to quiet title and for possession of the property on May 20, 1971, in the Court of Common Pleas of Delaware County. Although personal service in the quiet title action was made by leaving a copy of the complaint at the Tunstall's residence with their adult daughter, Elizabeth, on May 27, 1971, the Tunstalls did not defend against this action and a final judgment by default was entered on September 9, 1971. Subsequently the Tunstalls petitioned to have the judgment opened, which was granted on March 21, 1972. An answer was filed, the quiet title action proceeded to trial without a jury, and on September 12, 1972, the court entered a verdict in favor of the Tunstalls. *fn10" On appeal to the Commonwealth Court, the judgment was reversed and the case remanded for further proceedings. Curtis Building Company, Inc. v. Tunstall, 21 Pa. Commw. 81, 343 A. 2d 389 (1975). *fn11" The trial judge then ordered a new trial at which the prior record would be incorporated and the parties allowed to present additional evidence. The second trial had not commenced when this complaint was filed and is presumably being held in abeyance pending my decision herein.

 C. Joseph Massey v. Grace Building Company, Inc.

 On February 4, 1946, Joseph Massey and his late wife, Mozelle, purchased 710 W. Cooke Ave., Darby Township, Glenolden Post Office, Delaware County, Pennsylvania. The Masseys resided there until 1966 when they moved to a smaller home where Mr. Massey still resides at Route 1, Rome Avenue, Newfield, New Jersey. Mrs. Massey died on July 21, 1973. When the Masseys moved to New Jersey they rented the Cooke Avenue property to ...


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