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UPSET SALE (08/06/82)


decided: August 6, 1982.


Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Upset Sale, Tax Claim Bureau of Montgomery County, Pennsylvania, held September 10, 1979, No. 79-21884.


Kingsley A. Jarvis, for appellants.

Maurice M. Green, with him Michael J. Sheridan, for appellee.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig. Judge Williams, Jr. dissents.

Author: Craig

[ 68 Pa. Commw. Page 181]

Robert and Delores Williams, husband and wife, appeal an order of the Court of Common Pleas of

[ 68 Pa. Commw. Page 182]

Montgomery County confirming the tax sale of real property they owned as tenants by the entireties. The Real Estate Tax Sale Law*fn1 (Tax Sale Law) governed the sale.

Emma Williams had owned the property here, located at 1003 Green Street, Norristown, Montgomery County, when she died on February 21, 1978. Her children, Joyce Williams and Robert Williams, were devisees of the property, one half each, and were co-executors of the estate.

Because the 1977 county, municipal and institutional district taxes were delinquent,*fn2 the county tax claim bureau (bureau), pursuant to Tax Sale Law Section 308,*fn3 sent a tax claim notice addressed to Emma Williams, at the Green Street address. This notice, postmarked May 15, 1978,*fn4 was returned unclaimed. On June 28, 1978, the bureau arranged that notice of the tax lien be posted on the property.

The record indicates that, by a series of deeds, all dated December 29, 1978, title to the property was transferred to Robert and Delores Williams, his wife. In June, 1979, Robert and Delores Williams' address ceased to be 618 Moore Street, Norristown, when they moved to 1003 Green Street.*fn5

[ 68 Pa. Commw. Page 183]

Because the delinquent 1977 taxes were not paid by June, 1979, the bureau sent a single tax sale notice to "Robert and Dorlores Williams"*fn6 at "618 Morre Street,"*fn7 which notice was returned unclaimed. Two deputy sheriffs testified that the property was posted on August 20, 1979.

We must decide the following issues: Was the Section 308 claim notice for 1977 taxes mailed to Emma Williams at the proper address? Did the single tax sale notice, addressed to both Robert and Delores Williams, comply with the mailed notice requirements of the Tax Sale Law? Would prospective application of the rule in Teslovich v. Johnson, 486 Pa. 622, 406 A.2d 1374 (1979), violate the Williams' constitutional rights? Does the deputy sheriff's return of service provide an adequate basis for the common pleas court's finding that the tax sale notice was posted on the property?

[ 68 Pa. Commw. Page 184]

Section 308 requires that notice of a claim for delinquent taxes be sent to the property "owner"*fn8 at the owner's "last known address."*fn9 Grace Building Co., Inc. v. Chester County Land Corp., 19 Pa. Commonwealth Ct. 269, 339 A.2d 161 (1975). For the purposes of the Section 308 notice for 1977 taxes, we decide that Emma Williams was the property owner because she was the last reputed owner.

Where notice is returned unclaimed and taxes for years subsequent to a delinquent tax have been paid, we have held that the bureau must contact the local tax collector for the purpose of discovering the owner's correct address. When the local tax collector has knowledge of the correct address, that knowledge will be imputed to the bureau and notice mailed to an incorrect address will not satisfy the notice provisions of the Tax Sale Law. Clawson Appeal, 39 Pa. Commonwealth Ct. 492, 395 A.2d 703 (1979).

There is evidence in the record which indicates that, in March, 1978, Joyce Williams paid the 1978 municipal taxes to the borough tax collector. Appellants have not, however, proved that the local tax collector knew the address for Emma Williams' estate

[ 68 Pa. Commw. Page 185]

    when the claim notice for 1977 taxes was mailed or that Joyce Williams advised the tax collector that she was paying borough taxes as executor of her mother's estate or even that Emma Williams was deceased.*fn10 The bureau is not required to search estate notices or probate and deed records for owners. Brown v. Barnes Real Estate Co., 44 Pa. Commonwealth Ct. 439, 404 A.2d 437 (1979). Because the bureau had no notice, actual or imputed, of the address for the estate, we decide that the bureau sent the Section 308 claim notice for 1977 taxes to the proper address.

In Teslovich, our Supreme Court held that Tax Sale Law Section 602*fn11 requires separate and individual notice to each tenant by the entireties. The court, however, specifically directed that this construction be given only prospective effect, beginning thirty days after that decision was filed, November 22, 1979.

[ 68 Pa. Commw. Page 186]

Accordingly, we have refused to apply Teslovich retroactively. See Stephens Appeal, 53 Pa. Commonwealth Ct. 423, 419 A.2d 206 (1980).

The Williams argue that a prospective application of Teslovich would violate their constitutional rights under the Equal Rights amendment to the Pennsylvania Constitution.*fn12 We must follow the direction of the Supreme Court and prospectively apply the separate notice construction. In Re Moskowitz, 68 Pa. Commonwealth Ct. 29, 447 A.2d 1114 (1982).

Before Teslovich, in cases involving property owned by the entireties, we held that a single notice addressed to both husband and wife, who were living together, complied with the mailed notice requirements of Section 602. Tax Claim Bureau v. Wheatcroft, 2 Pa. Commonwealth Ct. 402, 278 A.2d 172 (1971). Hence the single tax sale notice here was valid.

Delores and Robert Williams testified that they did not see any notice posted on the property. The common pleas court found that deputy sheriff Turri filed a return of service which states that he posted notice of the impending tax sale on the property, on August 30, 1979.*fn13 Deputy Turri testified that he thought the house he posted was red brick. The Williams say it was painted white. Deputy sheriff Holland testified that he saw deputy Turri post the correct property and that the house was white. The common pleas court found that the property had been posted.

There is a prima facie presumption of the regularity of public official's acts. Hughes v. Chaplin, 389 Pa. 93, 132 A.2d 200 (1957). Facts stated in a sheriff's return of service, of which the sheriff has personal

[ 68 Pa. Commw. Page 187]

    knowledge, are presumed to be true. See Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965). This presumption is rebuttable and must yield if the evidence indicates the contrary. Wheatcroft v. Schmid, 8 Pa. Commonwealth Ct. 1, 301 A.2d 377 (1975). The resolution of the conflicting testimony here was for the trial court. Brown at 442, 404 A.2d at 439. We decide that the common pleas court did not ignore competent evidence.

Accordingly, we affirm.


Now, August 6, 1982, the order of the Court of Common Pleas of Montgomery County, Civil Action No. 79-21884, dated December 11, 1980, is hereby affirmed.

Judge Williams, Jr. dissents.



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