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MONA L. FAWBER AND PAUL E. FAWBER v. DAUPHIN COUNTY TAX CLAIM BUREAU AND ALAN GOLDSTEIN. ALAN GOLDSTEIN (07/11/88)

decided: July 11, 1988.

MONA L. FAWBER AND PAUL E. FAWBER
v.
DAUPHIN COUNTY TAX CLAIM BUREAU AND ALAN GOLDSTEIN. ALAN GOLDSTEIN, APPELLANT



Appeal from the Order of the Court of Common Pleas of Dauphin County, in the case of Mona L. Fawber and Paul E. Fawber v. Dauphin County Tax Claim Bureau and Alan Goldstein, Nos. 245 S 1986 and 3000 S 1985.

COUNSEL

Norman M. Yoffe, Norman M. Yoffe, P.C., for appellant.

Arthur K. Dils, Dils, Dixon & Zulli, for appellees.

Judges MacPhail and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 117 Pa. Commw. Page 522]

Before us for consideration is an order of the Court of Common Pleas of Dauphin County sitting en banc which reversed Judge Morrison's order dismissing the exceptions/complaint to a tax sale filed by Mona and Paul Fawber (the Fawbers). Paul Fawber, along with his former wife, Betty, were the record owners of real property which was sold by the Dauphin County Tax Claim Bureau (Bureau). Alan Goldstein, the appellant herein, was the purchaser of the property at the upset sale.

In the original pleading filed in the common pleas court, the Fawbers sought to set aside the tax sale. They had made partial payment and their tax liability which triggered the sale was approximately $47.00. They alleged (1) that Paul Fawber never received notice of the tax sale or the delinquency, (2) that if the sale was posted, their children may have taken or hidden the sign, and (3) that the sale of the property for such a minimal amount of back taxes was "inequitable," "unjustified" and "unconscionable."

The trial court originally found that notice had been received in accordance with Section 602 of the Real Estate Tax Sale Law (Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.602. Judge Morrison also determined that the Fawbers' hardship claims*fn1 were legally irrelevant, and that inadequacy of the upset price is not a legal basis for setting aside the sale. Thus, he denied the Fawbers the relief they sought.

[ 117 Pa. Commw. Page 523]

Fawbers then filed a document entitled "Appeal, Exceptions, and Motion for Reconsideration." In that document, the single legal issue was raised: whether the portion of taxes paid by the Fawbers should have been applied first to the real estate and then to the trailer located on the real estate, which was separately assessed. The Bureau credited the tax payments received from the Fawbers to the trailer and then to the real estate, leaving a balance of tax due on the realty. The en banc court, however, did not confine itself to that issue, instead deciding (1) that notice had been inadequate, (2) that the Fawbers' personal hardships were legally relevant, and (3) that the low upset price was a basis for setting aside Judge Morrison's order. In so doing the en banc court made various factual findings. The sole issue raised in Fawbers' motion, however, was not decided. Subsequent to the en banc court's setting the sale aside, Goldstein appealed to this Court.

On appeal Goldstein contends, inter alia, that the en banc court erred (1) in considering issues not raised before it, (2) in making factual findings, and (3) in determining that the price paid at the upset sale justified setting the sale aside. He also maintains that the Bureau need not apply tax payments first to realty and then to personalty.

Before considering these issues, however, a preliminary matter demands attention. It is unclear whether the Fawbers initiated their lawsuit pursuant to Section 607 of the Law, 72 P.S. § 5860.607 by filing objections or exceptions or by filing a complaint. If the Fawbers were proceeding under Section 607 once Judge Morrison issued his order, the filing of exceptions would not have been necessary, see Marra Appeal, 94 Pa. Commonwealth Ct. 407, 504 A.2d 380 (1986), and would not toll ...


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