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M.J.M. FINANCIAL SERVICES v. BEATRICE BURGESS (11/25/87)

decided: November 25, 1987.

M.J.M. FINANCIAL SERVICES, INC., APPELLANT
v.
BEATRICE BURGESS, AN INCOMPETENT, BY HER GUARDIAN, MICHAEL P. DIGNAZIO, APPELLEE. IN RE: UPSET PRICE TAX SALE OF SEPTEMBER 9, 1985, BY THE TAX CLAIM BUREAU OF DELAWARE COUNTY. M.J.M. FINANCIAL SERVICES, INC., APPELLANT



Appeal from the Orders of the Court of Common Pleas of Delaware County in the case of M.J.M. Financial Services, Inc. v. Beatrice Burgess, an incompetent, by her guardian, Michael P. Dignazio, No. 85-11295, In Re: Upset Price Tax Sale of September 9, 1985, by the Tax Claim Bureau of Delaware County, M.J.M. Financial Services, Inc.

COUNSEL

Alfred O. Breinig, Jr., for appellant.

Michael P. Dignazio, for appellee.

Judges MacPhail and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Dissenting Opinion by Judge MacPhail.

Author: Blatt

[ 111 Pa. Commw. Page 302]

M.J.M. Financial Services, Inc. (M.J.M.) appeals two orders of the Court of Common Pleas of Delaware County (trial court), the first of which denied M.J.M.'s petition to intervene and open judgment in a case wherein the trial court refused to confirm nisi the sale of property No. 40 located in Aston Township and the second of which denied M.J.M.'s exceptions to refusal to confirm the sale nisi.

[ 111 Pa. Commw. Page 303]

M.J.M. purchased real property located at 506C Weir Road in Aston Township at an upset sale held by the Delaware County Tax Claim Bureau (Bureau) on September 9, 1985. Subsequently, Michael P. Dignazio, guardian to Beatrice Burgess who had been adjudicated an incompetent by the Orphans' Court of Delaware County on April 16, 1985, sought to have the sale invalidated on grounds of lack of proper notice. To this end, Mr. Dignazio, on September 19, 1985, filed exceptions with the trial court in which he alleged that, although the County Tax Assessment Office had notice of Mr. Dignazio's appointment as guardian for Mrs. Burgess on or before July 26, 1985, the Bureau forwarded the notice of sale to Mrs. Burgess at her old address and that such action violated the notice requirements appearing in Section 602 of the Real Estate Tax Sale Law (Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. ยง 5860.602. Mr. Dignazio further averred that he, as guardian, did not receive actual notice of the sale until it had occurred. He, therefore, requested that the trial court strike the sale. The trial court held a hearing on September 24, 1985, at which time Mr. Dignazio and a witness for the Bureau appeared. The Bureau conceded that the notice was inadequate. M.J.M. did not participate in this hearing. Subsequently, on September 24, 1985, the trial court ordered that the sale be set aside.

According to M.J.M.'s petition to open the judgment and to intervene, it first learned of Mr. Dignazio's exceptions to the sale on September 26 when it received a letter dated September 19 from Mr. Dignazio advising M.J.M. of the petition to strike off the sale and of the hearing. M.J.M. alleges that this letter was sent by regular mail and not in conformity with local Rule 206. M.J.M. further avers that it received, on October 8, 1985, a letter from the Bureau whereby it first

[ 111 Pa. Commw. Page 304]

    learned that the sale had been set aside and further received a check for the upset price it had paid. On October 14, 1985, M.J.M. praeciped the trial court to reduce the September 24 order to judgment. Then on October 24, 1985, M.J.M. petitioned the trial court to intervene in the matter and to open judgment. A hearing was held. The trial court concluded that M.J.M. lacked standing to intervene. Exceptions were filed by M.J.M. and were dismissed and an appeal to this Court followed.

On appeal here, M.J.M. contends that the trial court erred in setting aside the sale without there first having been a consolidated return of the tax sale filed with the trial court and without notice and joinder of the tax sale purchaser, i.e., M.J.M. It further asserts that the trial court's refusal to confirm the sale was in error.

Mr. Dignazio contends first that this Court lacks jurisdiction to decide the instant matter because there was no appeal of the September 24, 1985 trial court order setting the sale aside. We disagree. First, inasmuch as M.J.M. was not a party with respect to the September 24 order, it had no standing to appeal. Commonwealth v. Alessi, 105 Pa. Commonwealth Ct. 453, 524 A.2d 1052 (1987); Newberg v. Board of Public Education, 330 Pa. Superior Ct. 65, 478 A.2d 1352 (1984).*fn1 When M.J.M. discovered the adverse order, it sought leave to intervene and when that intervention was ...


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