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EARL J. RAYNES AND RUTH B. RAYNES v. LUCILLE M. O'BRIEN AND TAX CLAIM BUREAU DAUPHIN COUNTY. APPEAL LUCILLE M. O'BRIEN (09/08/89)

decided: September 8, 1989.

EARL J. RAYNES AND RUTH B. RAYNES, HIS WIFE
v.
LUCILLE M. O'BRIEN AND TAX CLAIM BUREAU OF DAUPHIN COUNTY. APPEAL OF LUCILLE M. O'BRIEN, APPELLANT



Appeal from Dauphin County Common Pleas Court, Honorable Herbert A. Schaffner, Judge.

COUNSEL

John W. Frommer, Smigel, Anderson & Sacks, Harrisburg, for appellant.

Robert G. Radebach, Etzweiler & Radebach, F.R. Martsolf, Harrisburg, for appellees.

Colins and Palladino, JJ., and Barbieri, Senior Judge.

Author: Colins

[ 128 Pa. Commw. Page 515]

Lucille M. O'Brien appeals from an order of the Dauphin County Court of Common Pleas denying post-trial motions which she filed in response to the trial court's order confirming a tax sale of her property pursuant to tax delinquency.

Mrs. O'Brien was divorced in April of 1981 and pursuant to a settlement agreement following her divorce, received sole ownership of the marital residence located at 431 Rosewood Lane in Swatara Township. The real estate taxes on this property became delinquent in 1981 and 1982. The Tax Claim Bureau of Dauphin County (Bureau) notified Mrs. O'Brien in July of 1983 that the property was scheduled for tax sale in light of the 1981 tax delinquency. In addition, Mrs. O'Brien also received a tax claim notice for the 1982 taxes. Mrs. O'Brien entered into an installment payment agreement with the Bureau for the 1981 taxes in August of 1983. However, after making two payments on the 1981 taxes, she defaulted. Mrs. O'Brien failed to take any action with regard to the 1982 tax delinquency. Accordingly, her property was sold to Earl J. and Ruth B. Raynes in November of 1984, for the delinquent 1982 taxes.

Mrs. O'Brien refused to relinquish the property to the Raynes'. The Raynes' filed a complaint with the trial court to quiet title. Mrs. O'Brien filed an answer to that complaint and an additional complaint in equity against the Bureau,*fn1 seeking to have the sale of her home set aside. The trial court entered an order setting aside the tax sale for failure to provide adequate notice under Section 308 of the Act, 72 P.S. ยง 5860.308.

The order was appealed and Senior Judge Barbieri, writing for this Court, reversed the trial court's order, holding that the notice sent to Mrs. O'Brien was adequate. We remanded the case for consideration of two issues which

[ 128 Pa. Commw. Page 516]

    were not considered by the trial court: whether Mrs. O'Brien was incompetent at the time of the receipt of notice and at the time of the tax sale; and, whether the premises were sold for an active price. 117 Pa. Commw. 434, 543 A.2d 630.

On remand, the trial court determined that Mrs. O'Brien was not incompetent from July, 1983, the time which she received notice, until November, 1984, the time of the tax sale. The trial court also held that the price paid for the property at the tax sale was satisfactory. Accordingly, the trial court concluded that there was no basis for setting aside the sale. Post-trial motions were filed and denied by the trial court. Mrs. O'Brien now appeals to this Court.

Mrs. O'Brien contends that the trial court erred in applying the "clear and convincing" standard of proof in determining whether she was incompetent at the time she received notice or at the time of the sale. She also submits that the ...


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