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decided: July 12, 1978.


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.

Author: 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 had been sold on October 28, 1968 and informed them of their right to redeem the property within 2 years. The Tunstalls claim that they never received this letter.

Upon the close of the evidence, the lower court again declared the tax sale void, on the basis that notice by certified mail was constitutionally inadequate under the circumstances.*fn2 We cannot agree.

[ 36 Pa. Commw. Page 237]

The notice required by due process is that which is reasonably calculated, under all of the circumstances, to actually apprise interested parties and afford them an opportunity to present their objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). It seems apparent to us that certified mail addressed to a homeowner at his actual place of residence is reasonably calculated to give actual notice of the proceedings to such a homeowner. This is particularly true since the absence of a signature on the return receipt card can give the taxing authorities warning that actual notice has not in fact been received. In this case, Mary E. Tunstall's signature on the card gave the taxing authorities strong reason to believe that actual notice had in fact been received.

The Tunstalls appear to be arguing that due process requires that notice of a tax sale be personally handed to the delinquent taxpayer. We find no authority for such a proposition. The only Pennsylvania authority cited by the Tunstalls, Luskey v. Steffron, Inc., 461 Pa. 305, 336 A.2d 298 (1975), held only that notice of a sheriff's sale by posting and by publication was constitutionally insufficient. Nor do the cases on the federal level support the Tunstalls.*fn3 In

[ 36 Pa. Commw. Page 238]

    fact, in a case similar in many respects to the present one, the United States Supreme Court upheld a tax sale despite the fact that the notice mailed to the taxpayer had been concealed by the taxpayer's bookkeeper. Nelson v. New York, 352 U.S. 103 (1956).

Since the notice provided to the Tunstalls was constitutionally adequate, we are compelled to reverse the order of the court below. We recognize that this result is harsh, but we must also recognize that "relief from the hardship imposed by a state statute is the responsibility of the state legislature and not of the courts, unless some constitutional guarantee is infringed." Nelson v. New York, supra, 352 U.S. at 111.

Order reversed.


And Now, this 12th day of July, 1978, the order of the Court of Common Pleas of Delaware County, dated March 4, 1977, is hereby reversed, and this case is remanded for the entry of appropriate judgment or order pursuant to Pa. R.C.P. No. 1066.


Reversed and remanded.

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