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PROPERTY M. BARRY AND SANDRA J. MOSKOWITZ TREDYFFRIN TOWNSHIP. PROPERTY NO. 43-6P-3.1 ON TREPHANNY LANE. M. BARRY AND SANDRA J. MOSKOWITZ (07/28/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 28, 1982.

IN RE PROPERTY OF M. BARRY AND SANDRA J. MOSKOWITZ IN TREDYFFRIN TOWNSHIP. PROPERTY NO. 43-6P-3.1 ON TREPHANNY LANE. M. BARRY AND SANDRA J. MOSKOWITZ, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Property of M. Barry and Sandra J. Moskowitz in Tredyffrin Township-Property No. 43-6P-3.1. on Trephanny Lane, Misc. No. 276-P and Misc. No. 275-P.

COUNSEL

Andrew J. Trevelise, with him Thomas O. Malcolm, and Alan R. Shaddinger, Malcolm & Riley, P.C., for appellants.

Maurice M. Green, with him Susan P. Windle, for appellee.

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

Author: Craig

[ 68 Pa. Commw. Page 30]

M. Barry and Sandra J. Moskowitz, husband and wife, appeal an order of the Court of Common Pleas of Chester County confirming the tax sale of real property in Tredyffrin Township which they owned as tenants by the entireties. The Real Estate Tax Sale Law*fn1 (Tax Law) governed the sale.

Because 1976 county and school taxes were delinquent, the county tax claim bureau (bureau) sold the

[ 68 Pa. Commw. Page 31]

    property to Area Homes, Inc. on September 11, 1978. We must decide whether the bureau complied with the notice requirements of Section 602 of the Tax Law.*fn2

The sheriff posted a tax sale notice on the property on August 2, 1978. The notice is not in dispute.

The bureau also had notice of the sale published in two newspapers of general circulation in the county on August 19, August 26 and September 2, 1978, and in the county legal journal. Two publications of the notice in one newspaper showed "Moskowitz" spelled properly. In all other published notices, an "a" appeared instead of the "z" at the end of the petitioner's surname, so that these notices identified the property as being owned by "Moskowita, M. Barry and Sandra J." All of the published notices identified the property by its full and proper address, which followed the owners' names.

The common pleas court, applying the doctrine of idem sonans, concluded that the misspelled notices fulfilled the published notice requirements of Section 602. We agree that absolute accuracy in spelling of names in notices published pursuant to Section 602 is not required when (1) the name, as misspelled, is essentially the same as the name correctly spelled, (2) the misspelled name adequately identifies the owner*fn3 and (3) the party is not prejudiced by the misspelling. See Ross Appeal, 366 Pa. 100, 76 A.2d 749 (1950).

The bureau also sent notice by certified mail to the Moskowitzes at their correct address. Sandra Moskowitz signed the receipt for that notice on June 30, 1978, but the wording of the address is disputed.

[ 68 Pa. Commw. Page 32]

Petitioners contend that the address read "Dr. and Mrs. M. B. Moskowitz," which is the wording shown on the return receipt card. Area Homes contends that the address read "M. Barry and Sandra J. Moskowitz," the address shown on the property record maintained by the county tax assessment office. The trial court concluded that it did not need to decide how the address read. Because this case is controlled by Tax Claim Bureau v. Wheatcroft, 2 Pa. Commonwealth Ct. 400, 278 A.2d 172 (1971), we must agree.

In Teslovich v. Johnson, 486 Pa. 622, 406 A.2d 1374 (1979), our Supreme Court held that Section 602 requires separate and individual notice to each tenant by the entireties, but the court specifically directed that such interpretation be given only prospective effect, beginning thirty days after the decision was filed, November 22, 1979.*fn4 Because the Moskowitzes were in court challenging the statutory adequacy of this one jointly addressed notice before Teslovich, they argue that applying Teslovich prospectively will violate their constitutional rights to due process and equal protection of the law. However, we must follow the direction of the Supreme Court and decline to apply the separate notice construction to this case.

Section 602 also requires that published notices set forth the approximate upset price. The upset price listed on all the notices was $1,301.75, the sum of the delinquent 1976 county and school taxes, plus the interest and costs, as shown on the bureau's ledger at the time the notices were prepared. The actual final upset price paid by Area Homes was $3,024.22, which included 1978 county and school taxes plus advertising and posting costs, municipal sewer and water charges

[ 68 Pa. Commw. Page 33]

    and transfer tax. (The 1977 taxes had been paid.) The Moskowitzes have not shown that they were prejudiced by the non-inclusion of the 1978 taxes and other charges and costs in the published upset price.*fn5 Obviously, the bureau, in formulating the upset price at the time of publication, could do no better than to reflect the charges on its record at that point.*fn6 Section 605 of the Tax Law recognizes all the components to be included in the final upset price at the time of sale,*fn7 as distinguished from the approximation to be given in the notice. We decide that the upset price used in the published notices -- correct at that time -- was proper.

Accordingly, we affirm.

[ 68 Pa. Commw. Page 34]

Order

Now, July 28, 1982, the order of the Court of Common Pleas of Chester County dated September 22, 1981, at Misc. No. 275-P of 1978, is hereby affirmed.

Amended Order

Now, August 9, 1982, the order in the above-captioned matter issued July 28, 1982 is hereby amended to read as follows:

Now, August 9, 1982, the orders of the Court of Common Pleas of Chester County dated June 18, 1980 and August 4, 1980 at Misc. No. 275-P of 1978, are hereby affirmed.

Disposition

Affirmed.


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