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DOLPHIN SERVICE CORPORATION v. MONTGOMERY COUNTY TAX CLAIM BUREAU AND 850 MODENA STREET (04/17/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 17, 1989.

DOLPHIN SERVICE CORPORATION
v.
MONTGOMERY COUNTY TAX CLAIM BUREAU AND 850 MODENA STREET, INC. 850 MODENA STREET, INC., APPELLANT

Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Dolphin Service Corporation v. Montgomery County Tax Claim Bureau and 850 Modena Street, Inc., No. 85-13923.

COUNSEL

Alfred O. Breinig, Jr., with him, Matthew K. Hubbard, for appellant.

John R. O'Rourke, Jr., McTighe, Weiss, Bacine & O'Rourke, P.C., for appellee.

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

Author: Palladino

[ 125 Pa. Commw. Page 221]

Appellant, 850 Modena Street, Inc., appeals from a decision of the Montgomery County Court of Common Pleas (trial court) which set aside a tax sale at which Appellant purchased property located at 2314 Rahway Avenue in Norristown. We affirm.

The premises in question, which have been vacant for several years, were sold at tax sale to Appellant on September 11, 1985. On November 1, 1985, the owner of the property, Dolphin Service Corporation (Dolphin), a wholly owned subsidiary of Progress Federal Savings Bank, filed exceptions to the sale. The trial court, concluding that the Montgomery County Tax Claim Bureau

[ 125 Pa. Commw. Page 222]

(Bureau) had not complied with the notice provisions of section 602 of the Real Estate Tax Sale Law (Law),*fn1 set aside the sale. Appellant has appealed to this court.

The dispositive issue before us is whether the trial court improperly allocated the burden of proof as to compliance with the notice provisions of the Law. Our scope of review is limited to determining whether the trial court abused its discretion, rendered a decision with lack of supporting evidence or clearly erred as a matter of law. Chester County Tax Claim Bureau v. Griffith, 113 Pa. Commonwealth Ct. 105, 536 A.2d 503 (1988).

Appellant asserts that the trial court improperly placed on the Bureau the burden of proving compliance with the notice provisions of the Law.*fn2 Appellant notes that the presumption of regularity of the acts of public officers applies to tax sales. In Hughes v. Chaplin, 389 Pa. 93, 132 A.2d 200 (1957), the Pennsylvania Supreme Court held that a prima facie presumption of the regularity of the acts of public officers exists until the contrary appears and that such a presumption is applicable in tax sales. Appellant contends that this presumption places the burden of proof as to proper notice on the party filing exceptions to the tax sale. Therefore, Appellant argues, our decision in Casanta v. Clearfield County Tax Claim Bureau, 62 Pa. Commonwealth Ct. 216, 435 A.2d 681 (1981), wherein we held that the county tax claim bureau bears the burden of proving compliance with the statutory notice provisions, is in conflict with Hughes. We rejected this argument in Ali v. Montgomery County Tax Claim Bureau, 124 Pa. Commonwealth Ct. 557, 557 A.2d 35 (1989), where we stated that there is no conflict between

[ 125 Pa. Commw. Page 223]

Bureau complied with section 602(e)(1) of the Law, which provides as follows:

(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,*fn4 return receipt requested, postage prepaid, to each owner as defined by this act.

Inasmuch as Appellant has failed to establish that the Bureau sent any notices to Dolphin,*fn5 it has failed to establish that the Bureau complied with section 602(e)(1) of the Law.*fn6

Accordingly, the decision of the trial court is affirmed.

Order

And Now, April 17, 1989, the decision of the Montgomery County Court of Common Pleas in the above-captioned matter is affirmed.

Judge Doyle dissents.

Disposition

Affirmed.


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