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.
Alfred O. Breinig, Jr., for appellant.
William E. Mowatt, for appellees.
President Judge Bowman and Judges Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
[ 36 Pa. Commw. Page 234]
Curtis Building Co., Inc. (Curtis) appeals from a decision of the Court of Common Pleas of Delaware County declaring invalid a treasurer's deed under which Curtis claimed title to property owned by Joseph L. Tunstall, Jr., and Mary E. Tunstall. The property had been sold to Curtis at a treasurer's sale for the nonpayment of 1966 real estate taxes. Since
[ 36 Pa. Commw. Page 235]
notice of the tax sale was properly sent to the Tunstalls, we are compelled to reverse.
The Tunstalls purchased the premises in question, their residence, in 1950. All taxes for the years 1961 through 1971, with the exception of the year 1966, were paid by the Tunstalls through their mortgage company. A representative of the mortgage company was unable to explain its failure to pay the 1966 taxes, although he admitted to the escrowing of funds for that purpose. On October 28, 1968, Curtis purchased the property at a treasurer's tax sale for a consideration of $424.
On May 20, 1971, Curtis filed an action to quiet title against the Tunstalls in the Court of Common Pleas of Delaware County. At trial, Joseph Tunstall testified that he had not received notice of the tax sale. No other testimony was presented. On the basis of this evidence, the Court of Common Pleas dismissed Curtis' action to quiet title and declared the tax sale void. On appeal, this Court held that Joseph Tunstall's testimony was insufficient to rebut the presumption raised by the treasurer's deed that the tax sale had been conducted according to law and that the notices required by law had been properly sent. We remanded the case for further proceedings not inconsistent with our opinion. Curtis Building Co., Inc. v. Tunstall, 21 Pa. Commonwealth Ct. 81, 343 A.2d 389 (1975).
Upon remand, the Court of Common Pleas granted the Tunstalls' request for a new trial and granted leave for them to amend their answer to the complaint to place at issue the constitutionality of the notice provisions of the County Return Act, Act of May 29, 1931, P.L. 280, as amended, 72 P.S. § 5971a et seq.*fn1
[ 36 Pa. Commw. Page 236]
Evidence received by the lower court, primarily in the form of stipulations, revealed that, on August 5, 1968, approximately 3 months prior to the tax sale, notice of the impending sale had in fact been sent to the Tunstalls by certified mail, pursuant to Section 7 of the County Return Act, 72 P.S. § 5971g. The return receipt card bore the signature of Mary E. Tunstall. Mrs. Tunstall acknowledged that the signature was hers, but she professed to have no recollection of signing the card or of receiving the notice attached thereto. By letter dated November 13, 1968, sent by regular mail, the treasurer advised the Tunstalls that the property ...