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08/12/97 GEORGE N. BAN v. TAX CLAIM BUREAU

COMMONWEALTH COURT OF PENNSYLVANIA


August 12, 1997

GEORGE N. BAN, APPELLANT
v.
TAX CLAIM BUREAU OF WASHINGTON COUNTY AND BUD FREY

Appealed From No. 96-05329. Common Pleas Court of the County of Washington. Judge GLADDEN, President Judge.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick.

The opinion of the court was delivered by: Narick

OPINION BY SENIOR JUDGE NARICK

FILED: August 12, 1997

This appeal presents the issue of whether the Washington County Tax Claim Bureau (Tax Bureau) met its burden of proving proper legal notice of tax sale.

Dr. George N. Ban (Dr. Ban) appeals from the decision of the Court of Common Pleas of Washington County (trial court) which upheld the September 24, 1996 upset sale of Ban's real estate for delinquent taxes pursuant to the Tax Sale Law. *fn1 We reverse.

This case arises from the upset sale of a residential property in Washington County owned by Dr. Ban. Our review of the record indicates the following. Dr. Ban lived in Butler County but maintained his, now vacant, childhood residence in Washington County through a neighbor who acted as caretaker. Dr. Ban failed to pay property taxes in a timely manner and on July 11, 1995, the Tax Bureau sent Dr. Ban a notice of claim for unpaid 1994 taxes which Dr. Ban received on August 3, 1995. *fn2

Dr. Ban took no action, and on July 29, 1996, the Tax Bureau sent a notice of public tax sale via certified/first-class U.S. Mail for which he also acknowledges receipt. The Tax Bureau also published notice of the sale in three Washington County newspapers of general circulation thirty (30) days prior to sale. On September 7, 1996, the Tax Bureau posted a notice of the pending tax sale on a rear entrance door, apparently not visible from the public street or public sidewalk fronting the property.

The Tax Bureau conducted an upset sale on September 24, 1996 at which the property sold for an amount well in excess of the upset price *fn3 to Bud Frey (Frey), intervenor. Within thirty (30) days, the Tax Bureau sent Dr. Ban notice via certified/first-class U.S. Mail, which he acknowledged receiving, that the property had been sold and advised him that he could file objections and exceptions to the tax sale no later than thirty (30) days after the trial court's confirmation nisi of the Tax Bureau's consolidated return. Dr. Ban timely filed objections and exceptions to the sale. After a hearing, the trial court confirmed the sale, holding that the Tax Bureau had established by substantial evidence that notice was posted in a reasonable manner such as would likely inform the taxpayer of the intended sale. Dr. Ban appeals. *fn4

On appeal, Dr. Ban argues that the tax sale should be voided because the Tax Bureau did not meet its burden of proving that the property had been properly posted pursuant to the Tax Sale Law *fn5 because the notice was posted on the back door of the house where it could not reasonably be noticed. *fn6 We agree.

In a tax sale case such as this, the burden of proving compliance with statutory notice provisions of the Tax Sale Law rests with the Tax Bureau. Rinier v. Tax Claim Bureau 146 Pa. Commw. 568, 606 A.2d 635 (Pa. Commw. 1992). Section 602 of the Tax Sale Law sets forth three methods of notice. *fn7 These notice requirements consist of publication at least thirty (30) days prior to sale, notification by certified/ first-class mail, and posting of the property at least ten (10) days prior to the sale, all of which are required for a valid tax sale. Matter of Tax Sales by the Tax Claim Bureau of Dauphin County, 651 A.2d 1157 (Pa. Commw.), reargument denied, appeal denied, 544 Pa. 650, 664 A.2d 978 (1994). It is well established that notice provisions are to be strictly construed, and that strict compliance with such provisions is necessary to guard against deprivation of property without due process, and if any one is defective, the sale is void. Rinier.

At issue in this case is the whether the Tax Bureau has complied with the statutory requirements for posting notice. *fn8 In deciding whether a property is properly posted for purposes of the Tax Sale Law, the Court must consider not only whether the posting is sufficient to notify the owner of the pending sale, but provides sufficient notice to the public at large so that any interested parties will have an opportunity to participate in the auction process. Chester County Tax Claim Bureau v. Griffith, 113 Pa. Commw. 105, 536 A.2d 503 (Pa. Commw. 1988).

In In re: Upset Tax Sale of September 10, 1990, 147 Pa. Commw. 52, 606 A.2d 1255 (Pa. Commw. 1992), a case similar to the present case, we examined the purposes behind the posting provision in great detail. Judge Pellegrini spoke for the Court:

Public posting assists in informing a taxpayer that his or her property will be exposed at tax sale, ... it serves the additional purpose of notifying others whose interest may be affected by the sale such as mortgage and lien holders. Posting also serves to notify the public at large that the property is going to be offered at tax sale. This increases the number of bidders for the property, aiding in the likelihood that the taxing bodies will receive the taxes owed, as well as making the sale fair to the delinquent taxpayer so that the property is sold for the highest amount possible so that the delinquent taxpayer may not be subject to any deficiency or, if the bid is over the amount of taxes owed, can receive any excess.

606 A.2d at 1258.

Because we concluded that the posting must be intended to reach not only persons entering the house, but the public or a passerby as well, we ultimately incorporated the practice established by our common pleas court of requiring that posting be accomplished by "placing the notices somewhere on the premises for all to observe," rather than handing the notices to the owner, or in "such a manner as to attract attention." *fn9 Id. We held that in order to constitute posting that was reasonable and likely to ensure notice, and thus valid notice by posting, the posting must be conspicuous, attract attention, and be placed there for all to observe. Id.

In applying this standard, we invalidated the posting in In re: Upset Tax Sale where the sheriff had folded the notice and thumbtacked it at key hole level to the door frame of a side door of the house between the main door and the storm door because, as the sheriff freely admitted the placement was meant to attract the attention of a person entering that door, not the public or a passerby. *fn10

It is undisputed in this case that the Tax Bureau representative believed the property was occupied and that her duty was simply to deliver the notice to the occupant or post notice on the door most used by the occupant. *fn11 It is also not disputed that the Tax Bureau posted the notice on the "back door" on a side of the house which did not face the public road and by the Tax Bureau representative's own testimony, she had to drive into the property and follow a private sidewalk to the back door in order to reach that location, even though there was a front door on the side where the property faced a public street.

While the choice to place the posting on a door which the Tax Bureau believed to be frequented by the occupant was well intentioned and probably the most likely location to notify the occupant of the impending sale, the statute requires that notice be posted so that it can be seen by the public as well as the occupant.

Whereas the posting in this case was not conspicuous, did not attract attention, and was not placed there for all to see, we find that the trial court's decision that the posting was reasonable and likely to ensure notice was not supported by substantial evidence.

For aforementioned reasons, we reverse.

EMIL E. NARICK, Senior Judge

Judge Pellegrini concurs in the result only.

ORDER

AND NOW, this 12th day of August, 1997, the order of the Court of Common Pleas of Washington County in the above-captioned matter is hereby reversed.

EMIL E. NARICK, Senior Judge


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