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RETURN BUTLER COUNTY TAX CLAIM BUREAU TAX SALE HELD SEPTEMBER 8 (05/05/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 5, 1988.

IN RE: RETURN OF THE BUTLER COUNTY TAX CLAIM BUREAU OF TAX SALE HELD SEPTEMBER 8, 1986. DORIS MARSHALEK, APPELLANT

Appeal from the Order of the Court of Common Pleas of Butler County, in the case of In Re: Return of the Butler County Tax Claim Bureau of the Tax Sale Held September 8, 1986 -- Appeal of Doris Marshalek, Misc. Dkt. No. 86-111, Book 44, Page 210.

COUNSEL

Andrew M. Miller, for appellant.

Frank P. Krizner, County Solicitor, for appellee, Tax Claim Bureau.

James Coulter, for appellee, Robert Raida.

Judges MacPhail, Colins and McGinley, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 116 Pa. Commw. Page 2]

Doris Marshalek (Appellant) appeals an order by Judge Rauschenberger of the Court of Common Pleas of Butler County, which confirmed and validated the tax sale to purchaser Robert Raida of Appellant's undivided one-fifth (1/5) interest in certain real estate in Butler County.

On September 9, 1986, the Butler County Tax Claim Bureau (Bureau) sold the one-fifth interest Appellant owned as a tenant in common with seven others in 125.70 acres of land in Washington Township, Butler County, Pennsylvania. The sale resulted from the nonpayment of her 1984 real estate taxes. Appellant filed objections to the tax sale on November 6, 1986, and after a hearing on March 18, 1987, the trial court held that the tax sale was confirmed and validated in the purchaser. This appeal followed.*fn1

Appellant argues the tax sale should be held invalid for three reasons: first, the description in the tax sale notices was confusing and incorrect; second, Appellant

[ 116 Pa. Commw. Page 3]

    was told on April 2, 1986, by an employee of the Bureau that she owed no taxes, and therefore disregarded the subsequent tax sale notices she received; and third, none of the other seven owners of the 125.70 acres were notifed of the tax sale.

Appellant's first and second arguments are without merit.*fn2 Appellant's final argument is that the trial court erroneously determined that the only interest being sold was the separately assessed interest of Appellant and since Appellant was notified there was no reason why the other owners should be notified as their interests were not being sold.

The Bureau relies on Act of May 24, 1917 (1917 Act), P.L. 270, §§ 1, 2, 72 P.S. §§ 5968, 5969, which together provide that the interest of any tenant in common or coparcener is not to be sold for the co-owner's failure to pay taxes and that any such co-owner may pay his proportionate share of the tax without affecting the interest of the other co-owners. It also relies on section 12 of the Local Tax Collection Law, Act of May 25, 1945

[ 116 Pa. Commw. Page 4]

(1945 Act), P.L. 1050, as amended, 72 P.S. § 5511.12, which states in pertinent part:

Any joint tenant, tenant in common, or coparcener of real property shall have the right to pay his proportionate part of the amount of taxes due thereon. . . . The interest of any such joint tenant, tenant in common or coparcener, shall not be affected by any proceeding or sale to enforce payment of taxes on the other interests in said land.

However section 602(e)(1) of the Real Estate Act, 72 P.S. § 5860.602(e)(1), requires that "each owner" must be notified of the tax sale. It states:

(e) In addition to such publications, similar notice of the sale shall also be given by the bureau as follows:

(1) At least thirty (30) days before the date of the sale, by United States certified mail, personal addressee only, return receipt requested, postage prepaid, to each owner as defined by this act.

Each of the eight owners, including Appellant, owns a fractional share in the whole 125.70 acre estate. Thus, all eight owners here qualify as "owners" under the definitional section 102 of the Real Estate Act, 72 P.S. 5860.102, for purposes of section 602(e)(1) of the Real Estate Act. Section 102 of the Real Estate Act defines owner as: "The person in whose name the property is last registered, if registered according to law or, if not registered according to law, the person whose name last appears as an owner of record on any deed or instrument of conveyance recorded in the county office designated for recording. . . ."

The trial court incorrectly concluded that "a tax sale of a fractional interest in real estate does not require notice to the other owners of the fractional interests

[ 116 Pa. Commw. Page 5]

    whose interests are not being affected." (Conclusion of Law No. 3.) The trial court erroneously interpreted section 12 of the 1945 Act as eliminating the notice requirement of section 602 of the Real Estate Act. Applied correctly, section 12 of the 1945 Act comes into play during the collection proceedings. Section 602(e)(1) of the Real Estate Act comes into play during the sale of property for delinquent taxes. It is contradictory to acknowledge that other owners of fractional interests exist and to state that their interests may not be affected. The fact that they are owners of fractional interests means they have "interests" that will be affected.*fn3 The trial court has committed an error of law.

In Teslovich v. Johnson, 486 Pa. 622, 406 A.2d 1374 (1979), the Supreme Court held that section 602 of the Real Estate Act "requires separate and individual notice to each named owner of property; regardless of whether that owner holds in common, in joint, or by the entireties." Id. at 628, 406 A.2d at 1378. In Teslovich the Fayette County Tax Claim Bureau did not mail two separate and individual tax sale notices to Rosetta Shroyer and her husband Garfield Shroyer who held a 29 acre parcel of land as tenants by entireties, but were separated and lived at separate residences for three years prior to the tax sale. The Supreme court affirmed the order of the Commonwealth court setting aside the tax

[ 116 Pa. Commw. Page 6]

    sale stating that "the instant case amply demonstrates the frustration of legislative purpose which can occur when the notice provisions of section 602 of the Real Estate Tax Sale Law are construed to permit a single notice to tenants by entireties." Id. at 627, 406 A.2d at 1377.

In the case sub judice, Appellant held her one-fifth interest as a tenant in common with seven other tenants in common. The Teslovich holding included owners as tenants in common as well as by the entireties as evidenced by this Court's decision in LaBracio v. North-umberland County, 78 Pa. Commonwealth Ct. 533, 567 A.2d 1221 (1983).*fn4 We recognize that none of the other co-tenants objected. However, it is long settled that a valid tax sale requires strict compliance with the notice provisions of Section 602 of the Real Estate Act. Trussell Appeal, 102 Pa. Commonwealth Ct. 32, 517 A.2d 221 (1986); Area Homes Inc. v. Harbucks, Inc. and The Equitable Trust Co., 75 Pa. Commonwealth Ct. 97, 461

[ 116 Pa. Commw. Page 7]

A.2d 357 (1983); Daubenspeck Appeal, 48 Pa. Commonwealth Ct. 612, 411 A.2d 837 (1980). The sale must be invalidated.

Accordingly, we declare the sale by Butler County of the Appellant's property null and void and we reverse the decision of the Trial Court.

Order

[ 116 Pa. Commw. Page 210]

And Now, May 5, 1988, the order entered May 1, 1987, by the Butler County Court of Common Pleas, Misc. Dkt. No. 86-111, Book 44, Page 210, is reversed.

Disposition

Reversed.


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