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CHARLES THOMAS v. MONTGOMERY COUNTY TAX CLAIM BUREAU AND A. O. BREINIG (02/07/89)

decided: February 7, 1989.

CHARLES THOMAS, APPELLANT
v.
MONTGOMERY COUNTY TAX CLAIM BUREAU AND A. O. BREINIG, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County, in the case of Charles Thomas v. Montgomery County Tax Claim Bureau, A. O. Breinig, No. 85-13923.

COUNSEL

Joseph T. Margrabia, with him, Joseph E. Brezina, Margrabia & Brezina, P.C., for appellant.

Alfred O. Breinig, Jr., for appellee, A. O. Breinig.

Diane M. Zabowski, with her, Thomas M. Keenan, for appellee, Montgomery County Tax Claim Bureau.

Judges Doyle, Palladino and Smith, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 123 Pa. Commw. Page 372]

Before this Court is an appeal by Charles Thomas (Appellant) from an order of the Court of Common Pleas of Montgomery County confirming a tax sale of Appellant's property by the Montgomery County Tax Claim Bureau (Bureau).

Appellant was the owner of a vacant, unimproved tract of land in Montgomery County. The land was appraised at $26,000 in December 1985. The property was sold to pay delinquent school taxes on September 9, 1985, for the sum of $3,077. On October 30, 1985, Appellant filed exceptions to the tax sale and a hearing was held before the trial court. The issues before the trial court dealt exclusively with the notice provisions under Section 6 of the Real Estate Tax Sale Law (Act), 72 P.S. ยง 5860.602.*fn1

[ 123 Pa. Commw. Page 373]

At the hearing, the trial court found that the mailing and publication provisions of the Act were satisfied by the Bureau. Appellant does not dispute this finding on appeal, but does assert that the posting requirements were not properly followed. The only evidence presented pertaining to the posting issue, however, was the affidavit of a deputy sheriff merely stating that the property was posted at 10:20 a.m. on August 6, 1985. No objection was made by Appellant to the admission of the affidavit. Neither Appellant nor the Bureau called either of the two deputy sheriffs who posted the property to testify. Instead, each party argued that the burden of proving adequate posting was on the other.

The trial court held that the Bureau had the initial burden of proving its compliance with the statutory notice provisions of the Act. It further held that the affidavit of posting established a presumption of the regularity of the posting procedure, and that the burden then shifted to Appellant to rebut that presumption. Since Appellant failed to produce any evidence at all, the court confirmed the tax sale of the property.

The issue on appeal before us concerns only the manner of the posting of the property in question and whether such posting was done in accordance with the Act. ...


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