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UPSET SALE v. ESTATE MARIE C. SCHUMO (06/28/84)

decided: June 28, 1984.

IN RE UPSET SALE, TAX CLAIM BUREAU OF BERKS COUNTY. ROLAND S. AND LOUELLA V. NOLF, H/W, APPELLANTS,
v.
ESTATE OF MARIE C. SCHUMO, DECEASED, APPELLEE



No. 75 E.D. Appeal Docket 1982, Appeal from the Orders of the Court of Common Pleas of Berks County dated July 16, 1982, October 12, 1982, and November 10, 1982

COUNSEL

James A. Cunningham, Norristown, for appellants.

John M. Stott, Reading, for Ray Calvin Miller, Jr., exceptant to tax sale.

Elliott Goldstan, Reading, for Solicitor for Tax Claim Bureau.

Annabella Mosser, in pro. per.

C. Thomas Work, Clinton Najarian, Reading, for Schumo Estate.

Catherine R. Barone, Deputy Atty. Gen.

Papadakos, Justice. Zappala, J., filed a Dissenting Opinion in which McDermott, J., joined.

Author: Papadakos

[ 505 Pa. Page 331]

OPINION OF THE COURT

This is a direct appeal to us by Roland S. and Louella V. Nolf, his wife, (Appellants) pursuant to the provisions of the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, Section 2, 42 Pa.C.S. Section 722 (1980) from the final order of the Court of Common Pleas of Berks County of July 16, 1982, which held unconstitutional certain provisions of the Pennsylvania Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, Art. VI, Section 602, as amended, 72 P.S. Section 5860.602, and invalidated the tax sale of the property of Annabella D. Mosser (Mosser).

Mosser holds title to some ten acres of real property in Exeter Township, Berks County. The state of the record includes judgment liens held by the Estate of Mary C. Schumo, Deceased (Appellee), and Appellants, and tax liens for the years 1976 and 1977.

The Berks County Tax Claim Bureau (Bureau) notified Mosser that claims had been entered against her for nonpayment of her 1976-1977 county, municipal and school taxes, and further advised her of a one-year redemption period from December 31, 1978, during which she could pay the claim. The notice continues: "If the claim is not paid in full before the end of the redemption period the property will be advertised and sold by the Tax Claim Bureau at a judicial sale, and no further redemption will be allowed after such sale." (R. 48a, 162a).

Mosser did not redeem the property and the Bureau listed the property for sale on September 10, 1979. Advertisements appeared in a newspaper of general circulation and in the county legal journal listing the property for sale and addressing notice to: "owners of properties described in this notice: to all persons, municipalities and taxing authorities having tax liens, tax judgments or municipal claims against such properties." (R. 49a, 53a).

The property was sold at the tax sale to Appellants, and the sale was confirmed by decree nisi on October 31, 1979.

[ 505 Pa. Page 332]

On November 14, 1979, Appellee filed timely objections to the tax sale, alleging it had no notice of the sale from the Bureau and that, as to the estate, the sale was invalid. The Common Pleas Court agreed with Appellee, invalidated the tax sale by its opinion and order of July 20, 1982, and held that the Real Estate Tax Sale Law was unconstitutional insofar as it deprived judgment creditors of notice to tax sales because it deprived them of a valuable property right without due process of law.*fn1

On August 20, 1982, Appellee, as a judgment lienor, had a writ of execution issued against Mosser which directed the Sheriff to sell the subject property on October 8, 1982. The trial court twice stayed the sale (October 4, 1982, October 12, 1982) to permit Appellants to intervene and to post bond as security for any loss to the Estate because of the stay. Since Appellants did not meet the conditions of the stay order, the property was sold by the Sheriff on November 5, 1982, to the Estate.

After the sale, Appellants attempted to have the Sheriff's deed impounded and claimed entitlement to the proceeds of the sale. These claims were dismissed by the trial court on November 10, 1982. An appeal was taken to Superior Court on November 23, 1982, then transferred to us by our order of January 12, 1983, which consolidated these cases.

The central issue before us is the constitutionality of the Real Estate Tax Law, Act of July 7, 1947, P.L. 1368, No. 542, as amended, 72 P.S. Section 5860.101 et seq., which does not require either personal service or notice ...


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