No. 00163 Phila., 1984, Appeal from the Order Entered on December 22, 1983 in the court of Common Pleas of Philadelphia County, Civil Division, at No. 1939 June Term, 1982.
Spencer Ervin, Jr., Philadelphia, for appellant.
Abe Lapowsky, Philadelphia, for appellee.
Rowley, Watkins and Geisz,*fn* JJ.
[ 343 Pa. Super. Page 327]
On March 2, 1981, the appellee, Melvin T. Moore, purchased 4704 Wayne Avenue, Philadelphia, PA at a Sheriff's Tax Sale in Philadelphia County after judgment had been entered on a tax lien that had been filed by the City of Philadelphia. The Sheriff and Philadelphia County executed a deed on March 9, 1981 which conveyed the property to appellee.
Appellant, Bernadette C. Smith, was the former owner of the property. It is undisputed that the appellant was neither served with nor received notice of the tax lien action
[ 343 Pa. Super. Page 328]
in which judgment was entered against her and upon which the Sheriff's sale was based. Further, it is undisputed that the claim for registered taxes against the appellant contains no notation or indication that notice of the assessment or lien was given to appellant. It is also conceded that the appellant was never personally served with nor received notice of the Writ of Execution upon which the judgment was based.
Appellant continued to occupy the property after the conveyance of the property to the appellee. On June 17, 1982 appellee filed a complaint in ejectment against appellant. On October 12, 1982 appellant filed an Answer and New Matter alleging that the judgment on which the Sheriff's Sale occurred was void in that no notice of the Sheriff's Sale was given to appellant and so the sale was a nullity. Appellee filed a Reply to the New Matter. Subsequently both parties filed Motions for Summary Judgment. On December 22, 1983 the lower court issued an order granting appellee's Motion for Summary Judgment and denying appellant's Cross Motion for Summary Judgment. This appeal followed.
Appellant presents one question on appeal: Is a Sheriff's Sale to enforce a municipal tax lien void when the taxpayer was neither served with nor received notice of either the filing of the tax lien or the Writ of Execution upon which the judgment was based?
Appellant argues that she has been deprived of her property by a Sheriff's Sale without notice or an opportunity to be heard. Appellant contends that the Fourteenth Amendment to the United States Constitution requires personal service of a written notice prior to a Sheriff's Sale and that to the extent 53 P.S. § 7283 provides to the contrary, it cannot be given effect. Appellant accordingly argues that since appellee claims title under a void Sheriff's Sale, his complaint in ejectment should have been dismissed.
Under the Municipal Claims and Tax Liens Act, 53 P.A. § 7101, et seq., real estate taxes imposed by the City are a first lien against a ...