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WALLACE G. EWING v. DAUPHIN COUNTY TAX CLAIM BUREAU AND HARRY THOMAS. HARRY THOMAS (07/26/77)

decided: July 26, 1977.

WALLACE G. EWING
v.
DAUPHIN COUNTY TAX CLAIM BUREAU AND HARRY THOMAS. HARRY THOMAS, APPELLANT



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Wallace G. Ewing v. Dauphin County Tax Claim Bureau and Harry Thomas, No. 3476 Equity Docket 1975.

COUNSEL

Michael I. Levin, with him Cleckner & Fearen, for appellant.

John J. Krafsig, Jr., for appellee.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 31 Pa. Commw. Page 286]

Harry F. Thomas, Jr. bought two 30 X 150 feet lots at a tax sale conducted by the Tax Claim Bureau

[ 31 Pa. Commw. Page 287]

    of Dauphin County. The lots were exposed to sale for delinquent taxes as the property of "owner unknown." The sale was conducted in September 1973, and in November 1975 Thomas sent a surveyor to the location of the lots with instructions to stake them out. When this occurred Wallace G. Ewing, who believed he owned the lots, consulted counsel and the lawsuit which led to this appeal was instituted.

Ewing sued the Dauphin County Tax Claim Bureau and Harry Thomas in equity, seeking an order that the sale to Thomas be set aside and Thomas's deed be declared a nullity.*fn1 Ewing asserted that the tax sale was bad because notice of the sale was not posted and that he owned the lots because he had adversely possessed them for upwards of 21 years.*fn2 Thomas and the Tax Claim Bureau filed answers demanding proof of Ewing's title by adverse possession, asserting the regularity of the tax sale to Thomas and, in New Matter, asserting that Ewing had no capacity to sue because he had no title to the two lots.*fn3

At the trial Ewing testified that he purchased most of the land included in a plan of lots of which the two lots here in question were a part in 1936, that he cleared the land near his dwelling house including the two lots in question at that time and that, except from 1942 until 1945 when he was in the Army, he kept this land cleared and mowed, and that he did this continuously and in plain view for all to see down to the time of the trial in March of 1976. The several owners of neighboring properties who lived within view

[ 31 Pa. Commw. Page 288]

    of the two lots testified to Mr. Ewing's attention to the land from, respectively, July 1959, sometime in 1954, and 1961. The same witnesses all testified that no tax sale notice was ever posted on the property prior to the 1973 tax sale to Thomas and the Chancellor properly so found.

The Chancellor entered a decree nisi canceling Thomas's deed subject to reimbursement of the $49 he paid for the lots and declaring that Wallace G. Ewing was the owner. Thomas alone filed exceptions which were dismissed, and ...


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