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LOUIS J. CASANTA AND NANCY L. CASANTA v. CLEARFIELD COUNTY TAX CLAIM BUREAU (10/15/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 15, 1981.

LOUIS J. CASANTA AND NANCY L. CASANTA, HIS WIFE, APPELLANTS
v.
CLEARFIELD COUNTY TAX CLAIM BUREAU, BOARD OF COMMISSIONERS OF CLEARFIELD COUNTY AND ROBERT W. STRONG AND JOAN A. STRONG, HIS WIFE, APPELLEES

Appeal from the Order of the Court of Common Pleas of Clearfield County in the case of In Re: The Sale of Properties by The Clearfield County Tax Claim Bureau for Unpaid Tax Claim Liens, Miscellaneous Docket 8, Page 580, Involving: Treasure Lake Lot L 406-15, Sandy Township, Clearfield County, Pennsylvania, assessed in the name of Louis J. Casanta and Nancy L. Casanta, No. 128-21-C2-15-406.

COUNSEL

John Sughrue, for appellants.

David E. Blakley, Blakley & Jones, for appellees.

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

Author: Palladino

[ 62 Pa. Commw. Page 217]

Appellants (husband and wife landowners) appeal an order of the Court of Common Pleas of Clearfield County, confirming a tax sale and dismissing Appellants' exceptions to the sale of their land in Clearfield County by the Appellee-Clearfield County Tax Claim Bureau (Bureau) for the satisfaction of unpaid tax claims against their land. We reverse the order of the court of common pleas.

After two tax claims against Appellants' property had become absolute in accordance with Section 311 of the Real Estate Tax Sale Law (Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.311, the Bureau notified Appellants of the forthcoming sale of their property to satisfy unpaid taxes. On July 11, 1977, by United States registered*fn1 mail, return receipt

[ 62 Pa. Commw. Page 218]

    requested, pursuant to Section 602 of the Law, 72 P.S. § 5860.602, the Bureau sent Appellants a tax sale notice advising Appellants that their land would be sold for the "approximate upset price" of $81.79.*fn2 The parties have stipulated that (1) the envelope containing this notice was returned to the Bureau with the word "UNCLAIMED"*fn3 stamped on it by the postal authorities and (2) the return-receipt card was not returned to the Bureau. Additionally, on July 14, 1977, by United States registered mail, return receipt requested, the Bureau sent Appellants a tax sale notice advising Appellants that their land would be sold for the "approximate upset price" of $81.32.*fn4 This notice was received by Appellants as acknowledged by delivery to the Bureau of the return-receipt card signed by Appellant-wife.*fn5

Responding to the latter tax sale notice, Appellants, on August 15, 1977, sent the Bureau a check in the amount of $81.32. The Bureau received Appellants'

[ 62 Pa. Commw. Page 219]

    check on August 18, 1977, and recorded the check as satisfying the 1975 tax claim against Appellants' property. Then, on September 12, 1977, the Bureau sold Appellants' property to satisfy unpaid 1974 taxes.

Appellants contend that the Bureau failed to notify them of the forthcoming tax sale of their land according to the requisites of Section 602 of the Law.*fn6 "[T]he notice provisions of the Tax Sale Law are strictly construed to guard against deprivation of the property without due process of law." Povlow Appeal, 48 Pa. Commonwealth Ct. 435, 438, 410 A.2d 376, 378 (1980); Stephens Appeal, 53 Pa. Commonwealth Ct. 423, 419 A.2d 206 (1980); Grace Building Co. Appeal, 48 Pa. Commonwealth Ct. 507, 412 A.2d 645 (1980). Under Section 602, proper notice requires, inter alia, that the upset price*fn7 for which land is being offered at a tax sale be announced by three statutorily delineated means.*fn8

By stipulation, Appellants and the Bureau have agreed that the upset sale price of $262.57 was correctly conveyed by two statutory means: (1) newspaper advertisements and (2) posting on Appellants' land. However, Appellants maintain that notice of

[ 62 Pa. Commw. Page 220]

    the upset price of $262.57 was not sent to them by certified mail. "All three types of notice, namely publication, certified mail, and posting, are required for a valid tax sale; if any is defective, the sale is void." Daubenspeck Appeal, 48 Pa. Commonwealth Ct. 612, 614, 411 A.2d 837, 838 (1980); Brown v. Barnes Real Estate Co., 44 Pa. Commonwealth Ct. 439, 404 A.2d 437 (1979).

In tax sale cases the Bureau has the burden of proving compliance with the statutory notice provisions. As Judge Rogers has aptly explained in Clawson Appeal, 39 Pa. Commonwealth Ct. 492, 395 A.2d 703 (1979), the Real Estate Tax Sale Law

     impose[s] duties, not on owners, but on the agencies responsible for sales; and such of those duties as relate to the giving of notice to owners of impending sales of their properties must be strictly complied with. Hence, the inquiry is not to be focused on the neglect of the owners, . . . but on whether the activities of the Bureau comply with the requirements of the statute.

Id. at 498-99, 395 A.2d at 706. Attempting to establish compliance with the mail notice provision, the Bureau avers in its brief that "[b]y final notice, dated August 22, 1977, Appellants were notified by Certified Mail, that both the 1975 and 1974 taxes were due, and that the approximate upset sale price, for both years, was $262.57. This notice was unclaimed by the Appellants. (Appellants' Exhibit 14, R45a)." However, Appellants' Exhibit 14 is merely a copy of a tax sale notice which, the parties have stipulated, was posted on Appellants' land. Appellants and the Bureau have not stipulated that notice of the upset price of $262.57 was sent by certified mail to Appellants.

The record is devoid of any evidence showing an attempt by the Bureau to mail Appellants a tax sale notice listing the upset price of $262.57. While the

[ 62 Pa. Commw. Page 221]

    record is replete with evidence of proper mailings of other kinds of notice, the record does not include evidence either of (1) the postal authorities' handling of an envelope or return-receipt card corresponding to the notice of an upset price of $262.57 or (2) the Bureau's own business records*fn9 regarding the mailing of the notice of an upset price of $262.57.

The record does show, and the parties have stipulated, that by registered mail, return-receipt requested, the Bureau sent Appellants a tax sale notice listing an upset sale price of $81.79 and a tax sale notice listing an upset sale price of $81.32. However, both notices are defective with respect to the tax sale of Appellants' property because they do not set forth the total amount for which the property will be offered, i.e., the upset sale price of $262.57.*fn10

Accordingly, we will enter the following

Order

And Now, October 15, 1981, the order of the Court of Common Pleas of Clearfield County, dated April 6, 1979, at page 580 of Misc. Dkt. 8 is hereby reversed; the exception of Appellants Louis J. Casanta and his wife Nancy L. Casanta, concerning the Tax Claim Bureau's failure to properly notify Appellants of the sale of their land in Clearfield County, is hereby sustained, and the tax sale of Appellants' land to Robert W. Strong and his wife Joan A. Strong is hereby invalidated. This case is remanded to the Court of Common Pleas of Clearfield County for further proceedings consistent with this opinion and Section 607(e) of the Real Estate Tax Sale Law, 72 P.S. § 5860.607(e).

Disposition

Reversed. Tax sale invalidated and case remanded.


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