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MICHAEL TRACY AND FRANK MCCARTON v. COUNTY CHESTER (04/03/85)

decided: April 3, 1985.

MICHAEL TRACY AND FRANK MCCARTON, T/A TYRONE DEVELOPMENT COMPANY, APPELLANTS,
v.
COUNTY OF CHESTER, TAX CLAIM BUREAU, AND TOM SWIFT, ET AL., APPELLEES



No. 139 E.D. Appeal Docket 1983. Appeal from the Order of the Commonwealth Court of Pennsylvania entered on the 12th day of August, 1983 at No. 1897 CD 1980, vacating and remanding the Order of the Court of Common Pleas of Chester County, Civil Division, No. 67-P Misc. Term, 1978, dated September 28, 1982. Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files a Concurring and Dissenting Opinion which Larsen, J., joins.

Author: Flaherty

[ 507 Pa. Page 289]

Opinion OF THE COURT

In 1974 three individuals, John McGarrigle, Michael Tracy and Frank McCarton formed a partnership trading under the name of Tyrone Development Company. The company's fictitious name was registered both in Montgomery County and also in Harrisburg, and the partnership purchased a plot of land for $4,000 in the Borough of Downingtown,

[ 507 Pa. Page 290]

Chester County on December 10, 1974. The deed named the grantee as Tyrone Development Company and did not indicate the names of any of the company's principals. The Tax Claim Bureau records indicated the company's address as 22 Darby Road, Havertown, Montgomery County, Pennsylvania, which was the personal residence of John McGarrigle.

During 1975, the partnership paid its borough and school taxes, but did not pay its county taxes. The 1975 taxes that were paid (borough and school), were paid by a check which bore the printed designation "Tyrone Development Company," with no address noted. In the fall of 1975, McGarrigle withdrew from the partnership and moved to a new address in Havertown. The taxing authorities of Chester County were not informed of this change in the partnership or of any new address and continued to send tax statements to McGarrigle's old address at 22 Darby Road. McGarrigle's mail was forwarded to his new address for a period of one year, until October, 1976.

During 1976 the partnership paid its borough taxes, but not its county or school taxes. The borough taxes were paid by a check bearing the designation "Tyrone Development Company, 1003 Hunter's Lane, Oreland, Pa. 19075." However, the borough did not note that the address appearing on the check was a new address, and, in June of 1976 the Tax Claim Bureau sent a notice of delinquency to Tyrone Development Company at the old 22 Darby Road address. The notice was sent certified mail with delivery restricted to Tyrone Development Company. Although the notice was sent to the 22 Darby Road address, it was forwarded by the post office to McGarrigle's new address, and Ann McGarrigle, John's wife, signed the receipt. John McGarrigle then told Michael Tracy that he had received a tax delinquency notice, but Tracy thought that the delinquency notice referred to an amount which he had only recently paid, and so he took no further action. Having received no payment for the 1975 delinquency, the Tax Claim Bureau sent another notice, approximately a year

[ 507 Pa. Page 291]

    later, in June of 1977, of an impending tax sale because of tax delinquency. This notice also was addressed to the 22 Darby Road, Havertown address, but this time the notice was returned to the bureau undelivered because the one year forwarding order for McGarrigle's address was no longer effective.

On September 12, 1977 the property, which had been purchased for $4,000 and was valued, according to evidence of record, at $9,000 at the time of trial, was sold at tax sale for the sum of $400 to four individuals, Tom Swift et al, who are the appellees herein, because of a tax delinquency in the amount of $9.45. Early in 1978, when the two remaining partners of Tyrone Development Company were negotiating a sale of the property, they discovered that they no longer owned the property because it had been sold at a tax sale, and in March of 1978 they filed an action in the Court of Common Pleas of Chester County to set aside the sale on the ground that the Tax Claim Bureau failed to comply with the notice provisions of the Real Estate Tax Sale Law. Common Pleas Court set aside the sale on the grounds that the notice provisions of the Real Estate Tax Sale Law requiring notice to be sent to the owner's last known address, were not complied with. Noting that the Real Estate Tax Sale Law required notice of a tax sale to be sent to the owner's last known address and that Tyrone Development Company paid some of the taxes it owed in 1976 by checks indicating a new address at 1003 Hunters Lane, Oreland, Pa., the court held that the borough tax collector was on notice that there had been an address change. Since the knowledge of the borough tax collector is imputed to the Tax Claim Bureau, the notice of sale, according to Common Pleas Court, was defective, for it was not mailed to Tyrone's last known address, as is required under the Act.

On appeal, Commonwealth Court reversed on the grounds that the printing of a new address on a check submitted to the tax collector does not, without more, put the tax collector on notice that there has been an address change. 76

[ 507 Pa. Page 292]

Pa. Commw.Ct. 334, 463 A.2d 1251. The court noted that in the cases in which it was held the tax collector was on notice of a change of address, there were additional critical facts: Clawson Appeal, 39 Pa. Commw.Ct. 492, 395 A.2d 703 (1979) (notice of address change was effective where taxpayer hand-corrected address on printed check and called tax collector); Plank Appeal, 69 Pa. Commw.Ct. 442, 451 A.2d 793 (1982) (notice of address change was effective where taxpayer circled address change on the check in red and included a note to tax collector informing him of the change); Pinto Appeal, 72 Pa. Commw.Ct. 218, 455 A.2d 1294 (1983) (notice of an address change was ineffective when notice to tax collector consisted only of a new return address on an envelope). Further, Commonwealth Court noted its decisions in Boehm v. Barnes, 63 Pa. Commw.Ct. 87, 437 A.2d 784 (1981), where it held that local authorities must provide notice to each owner and to each partner whose name appears as an owner on tax records, but it need not notify silent partners or partners whose names do not appear on tax records. It also noted its decision in Brown v. Barnes Real Estate, 44 Pa. Commw.Ct. 439, 404 A.2d 437 (1979), holding that tax authorities may not be charged with information known to the recorder of deeds or be ...


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