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09/18/97 UPSET PRICE TAX SALE FOR SPRINGFIELD

September 18, 1997

IN RE: UPSET PRICE TAX SALE FOR SPRINGFIELD TOWNSHIP, DONALD GLEN, APPELLANT


Appealed From No. 91-14776. Common Pleas Court of the County of Delaware. Judge WRIGHT.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Smith.

The opinion of the court was delivered by: Smith

OPINION BY JUDGE SMITH

FILED: September 18, 1997

Donald Glen appeals from an order of the Court of Common Pleas of Delaware County that set aside his purchase of property at a tax sale. The question Glen states is whether the trial court erred in setting aside the sale, where the amount tendered by the owner after the sale did not comply with the requirements of Section 501(a) of the Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.501(a).

Carl P. Mudrick failed to pay 1989 real estate taxes on a property that he owned in Springfield Township, and the Delaware County Tax Claim Bureau (Bureau) listed the property for a tax sale on September 9, 1991 of properties with tax delinquencies for 1988 and 1989. The Final Notice of Public Sale indicated an approximate upset price of $589.25. The office of Mudrick's attorney mailed a copy of the Final Notice and a certified check for that amount on September 4, 1991. The Bureau received the check on the day of the sale, but not until after Glen successfully bid on the property in the morning. Glen paid the full upset sale price portion of his bid, $1,908.63, which included 1991 school taxes not yet paid. Because of high volume, the Bureau departed from its noticed requirement of payment of the full amount of the bid by 3:00 p.m. on the day of the sale, and Glen paid the balance the next day.

The trial court considered the question of when the tax "sale" actually takes place under the Real Estate Tax Sale Law. It concluded that the former case law rule designating the fall of the auctioneer's hammer no longer applies, following 1986 amendments to Section 501 and Section 102, 72 P.S. § 5860.102, which permit redemption until "actual sale," now defined in Section 102 as payment of the full amount agreed to be paid by the bidder. The court set aside the sale as contrary to statute. Glen filed a motion for post-trial relief. In an order of June 13, 1996, partially vacated by order of June 28, 1996, the trial court denied the post-trial motion. *fn1 I

The Court first sua sponte examines the question of its jurisdiction in this matter. In Appeal of Borough of Churchill, 525 Pa. 80, 575 A.2d 550 (1990), the Supreme Court reversed this Court's decision to quash appeals in a real estate tax assessment case. In 1986 the trial court ruled upon valuation from the bench and informed the parties that they could file exceptions or an appeal. The parties filed post-trial motions pursuant to Pa. R.C.P. No. 227.1, and they appealed from the order disposing of those motions. This Court concluded that because there was no provision for post-trial motions in such cases, the ruling on post-trial motions was a nullity, and there were no timely appeals from the trial court's original, appealable order.

In reversing, the Supreme Court stated that the filing of exceptions had long been part of the practice relating to tax assessment appeals. The Supreme Court held that where the Rules of Civil Procedure do not apply to a particular proceeding, and where no controlling local rule of procedure has been adopted by the common pleas court, a trial court is vested with authority to regulate the practice before it. In regulating local practice, the trial court may permit or refuse to permit exceptions in statutory appeals, unless and until the Supreme Court promulgates specific rules to incorporate statutory appeals into the Rules of Civil Procedure. Because the trial court invited the exceptions, its acceptance and disposal of them was proper.

By order of December 18, 1989, the Supreme Court amended Rule 227.1 by adding subdivision (g): "A motion for post-trial relief may not be filed in an appeal from the final adjudication or determination of a local agency or a Commonwealth agency as to which jurisdiction is vested in the courts of common pleas." The Explanatory Comment--1989 states: "New subdivision (g) prohibits post-trial proceedings in a statutory appeal. The decision of the court in all such cases will be a final, appealable order."

In Eachus v. Chester County Tax Claim Bureau, 148 Pa. Commw. 625, 612 A.2d 586 (Pa. Commw. 1992), appeal denied sub nom. P & P Partners v. Eachus, 534 Pa. 643, 626 A.2d 1161 (1993), a successful bidder at a real estate tax sale and later the original owner, without invitation from the court, filed post-trial motions to the trial court's July 1990 order sustaining objections and setting aside the sale. Well after the period for filing an appeal from that order ran, the trial court issued an order striking and denying all post-trial motions as inappropriate. This Court agreed that the proceeding pursuant to Section 607 of the Real Estate Tax Sale Law, 72 P.S. § 5860.607, was a statutory appeal. Noting that the trial court had not invited or encouraged the filing of post-trial motions, this Court dismissed the appeal here as untimely. Allowance of appeal was denied.

The case of Shapiro v. Center Township, Butler County, 159 Pa. Commw. 82, 632 A.2d 994 (Pa. Commw. 1993), appeal denied, 537 Pa. 635, 642 A.2d 488 (1994), involved an appeal from an order denying post-trial motions following a proceeding in common pleas court on writs of scire facias sur municipal claim. This Court determined that post-trial motions were not appropriate; however, because the trial court promptly scheduled argument on the motions when they were filed, the Court concluded that the circumstances were similar to those in Appeal of Borough of Churchill and declined to quash the appeal. The Supreme Court denied allowance of appeal.

In Appeal of Yardley, 166 Pa. Commw. 596, 646 A.2d 751 (Pa. Commw. 1994), the trial court issued a decree nisi confirming a real estate tax sale, to which an individual who owned 50 percent of the stock of the corporation whose property had been sold filed exceptions. Following a hearing the trial court entered an order confirming the sale, and the individual filed a motion for post-trial relief. An appeal was taken from the order denying that motion, which was issued several months later. This Court stated that the appeal was not timely, because Pa. R.C.P. No. 227.1(c) prohibits motions for post-trial relief on matters governed exclusively by the rules of petition practice. Nevertheless, the Court chose to rule upon other important issues that the case raised.

Most recently, in In re Appeal of Sheetz, Inc., 651 A.2d 563 (Pa. Commw.), rev'd per curiam, 539 Pa. 107, 650 A.2d 443 (1994), this Court quashed an appeal that was taken from a ruling upon post-trial motions in a real estate tax assessment case. In response to a remand order from this Court for clarification, the trial court stated that it had not invited the post-trial motions and that no local rule applied. Although the trial court's order was issued December 18, 1991, long after the effective date of Rule 227.1(g), and the tax assessment appeal was a statutory appeal to which Pa. R.C.P. No. 227.1(g) ...


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