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PROPERTY CONTINENTAL MOTELS (11/15/77)

decided: November 15, 1977.

IN RE: THE PROPERTY OF CONTINENTAL MOTELS, INC. SALE OF TAX CLAIM BUREAU OF CHESTER COUNTY ET AL. DOMAIN, LTD. AND TAX CLAIM BUREAU OF CHESTER COUNTY, PENNSYLVANIA, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: The Property of Continental Motels, Inc. Sale of Tax Claim Bureau of Chester County, No. Judges Crumlish, Jr. and Wilkinson, Jr., sitting as a panel of two. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 32 Pa. Commw. Page 430]

This is an appeal from an order of the Chester County Court of Common Pleas setting aside the tax sale of premises to appellant-purchaser on the ground that appellant, Tax Claim Bureau of Chester County

[ 32 Pa. Commw. Page 431]

(Bureau), failed to give the property owner requisite notice of redemption pursuant to Section 308(a) of the Real Estate Tax Sale Law (Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. ยง 5860.308(a). We must affirm.

The tax sale at which appellant-purchaser acquired the premises in question was conducted on October 15, 1973. The common pleas court confirmed and made absolute the decree nisi and on January 10, 1974, the Bureau duly executed and recorded a tax deed to appellant-purchaser.*fn1 On March 22, 1974, over five months after the date of the tax sale, the appellee-owner filed a petition for leave to file objections and exceptions nunc pro tunc. Only the Bureau was named as a respondent. Following the Bureau's failure to respond, the court below granted the petition and the objections and exceptions were filed. The allegations of the petition were, inter alia, that the appellee-owner had never been given timely notice of the availability of a redemption period prior to the sale; of the lack of a redemption period after the sale; of its default on an alleged agreement with the Bureau in September 1972 to pay its delinquency in installments; of a continuance of the sale from September 10, 1973 to October 15, 1973; and even of the sale of the property on October 15, 1973, notice of all of which are allegedly required under the Law. Following the dismissal of appellant-purchaser's petition to strike the objections and exceptions and the filing of the Bureau's and appellant-purchaser's answers to the objections and exceptions, depositions were taken in lieu of a hearing.

The first deponent was the Bureau's director, who was called by counsel for the property owner. He testified

[ 32 Pa. Commw. Page 432]

    that in 1972 tax delinquencies existed for the property for the tax years 1970 and 1971 and therefore a certified letter was sent by the Bureau and received by the property owner in June 1972, which letter included a copy of the Bureau's tax record card and bore a colored sticker. Although he could not state for a fact the contents of the notice contained on the sticker, he said that, by normal Bureau practice, the sticker would have been a red one entitled "Notice of Tax Sale" and would have stated that the property would be sold for the delinquent taxes on a specific named date in September 1972; that there would be no redemption period after the sale; that the sale could be stayed at the Bureau's option if the property owner entered into an agreement with the Bureau prior to the date of sale to pay the delinquency in installments; that advertising would be made in August 1972; and that payment could be made to the county treasurer at the Bureau's address.*fn2 The director testified further that the property owner sent a payment equivalent to 25% of the total 1970 and 1971 tax on September 5, 1972, and, therefore, the Bureau stayed the sale and prepared and sent to the property owner a form entitled "Agreement to Stay Tax Sale"*fn3 requiring another such payment on October 1, 1972. The director testified that a payment slightly in excess of the amount specified in the Bureau's form was received on October 16, 1972 and that payments required by the Bureau's form on January 2, 1973, and April 1, 1973, were never made. The director then stated that another certified letter with a copy of the tax record card and another red sticker (similar to

[ 32 Pa. Commw. Page 433]

    the previous red sticker but naming the date of sale as September 10, 1973) was received by an employee of the appellee-owner in June 1973. The director testified that notice of the September sale was also made by advertisement and posting but that no additional notice was given of the sale when it was continued for lack of bids to October 15, 1973.

The president of the appellee-owner was also deposed. He stated that he never received notice of the redemption period, but he admitted that he "could have" received a certified letter in 1971 bearing a yellow sticker but that he was "not sure of the colors." (The Bureau's yellow stickers are entitled "Notice of Tax Claim," notify the appellee-owner of the one-year redemption period, and are normally sent several months before the red "Notice of Tax Sale.") He testified that the first notice he received that the property would be exposed to sale was in July or August 1972 by a certified letter from the Bureau bearing a sticker, the color of which he could not remember. He stated that he called the Bureau, announced that he was short of money and asked if he could "work something out." He sent in the September 5, 1972, payment and subsequently received the Bureau's agreement form, which he could not recall signing and returning. He admitted no payments were made after October 16, 1972, and that a certified letter and sticker were received in June 1973 advising of the sale scheduled for September 10, 1973. He testified that the only notice he received that the sale would not be held on that date was through a telephone call from his bookkeeper to the Bureau in September 1973 and that the only notice he received that the property had been sold was by another such call in November 1973.

The court below found that neither appellant-purchaser nor the Bureau had presented evidence showing that the ...


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