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TAX CLAIM BUREAU (07/10/80)

decided: July 10, 1980.

IN RE: TAX CLAIM BUREAU, GERMAN TOWNSHIP, MT. STERLING, 54 1/2 ACRES MISCELLANEOUS BUILDINGS. RINALDO DICENZO AND FRED CUTERI, APPELLANTS


Appeal from the Order of the Court of Common Pleas of Fayette County in case of In Re: Consolidated Return of Sale of Properties for Delinquent Taxes by the Fayette County Tax Claim Bureau (Property of Solomon and Teslovich) No. 89 December Term, 1972.

COUNSEL

C. Grainger Bowman, McNees, Wallace & Nurick, of counsel, William M. Radcliffe, Coldren & Coldren, for appellants.

Samuel J. Davis, with him Gerald R. Solomon, for appellees.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Craig.

Author: Macphail

[ 52 Pa. Commw. Page 596]

In this case, the parties have stipulated to the essential facts upon which the Court of Common Pleas of Fayette County ordered, inter alia, that the sale of a certain premises at a tax sale to Rinaldo DiCenzo and Fred Cuteri (Appellants) be set aside. Those facts are as follows:

On August 26, 1970, Mt. Sterling Fuel Company (Sterling) sold three tracts of real estate to George Solomon and George Teslovich (Record Owners). The deed was duly recorded. Unfortunately, in noting the transfer, the tax assessment authorities changed the ownership of one tract only with the result that the other two tracts remained on the assessment records in the name of Sterling.

At the time of the transfer from Sterling to the Record Owners, the 1970 taxes had been assessed and were due and payable. Those taxes were not paid and on October 12, 1972, the Fayette County Tax Claim Bureau (Bureau) sold the two tracts still in the name

[ 52 Pa. Commw. Page 597]

    of Sterling to Appellants, after giving notice to Sterling but not to the Record Owners. From the briefs of counsel, we learn that since that time, Appellants have paid the taxes on the two tracts which are unimproved.

In April of 1978, the chief assessor discovered the error and notified the Bureau that in his opinion the sale was invalid. In May of 1979, the Bureau filed a "Petition to Void Sale" to the same term and number used for the tax sale in 1972. Appellants filed an answer thereto pursuant to which the court fixed a hearing for July 5, 1979. On June 8, 1979, an appearance was entered by counsel for the Record Owners. No testimony was taken on July 5, but during the dialogue among the trial judge and counsel, counsel for the Record Owners said that they would "join in the Petition of Fayette County." Appellants did not object to the joinder and although the trial judge took no formal action on the statement at the time it was made, his order on July 5, 1979 described the Record Owners as "petitioner of record by oral joinder." That order also directed counsel to enter into a stipulation of facts concerning the petition. Upon the filing of the stipulation, the trial judge entered the order from which the instant appeal has been taken.

In his opinion in support of his order, the trial judge stated that inasmuch as the Record Owners received no notice of the sale, it must be set aside, under the provisions of Section 602 of the Real Estate Tax Sale Law (Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. ยง 5860.602.

Appellants argue to us that (1) the Bureau had no authority to petition the court to void a tax sale once the sale had been confirmed absolutely, (2) the trial court had no jurisdiction to entertain the petition, (3) proper notice under the Law had been given by the ...


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