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12/18/97 MARK A. GROVE v. FRANKLIN COUNTY TAX CLAIM

COMMONWEALTH COURT OF PENNSYLVANIA


December 18, 1997

MARK A. GROVE, APPELLANT
v.
FRANKLIN COUNTY TAX CLAIM BUREAU AND WILLIAM A. LOWE

Appealed From No. Misc. CC-53. Common Pleas Court of the County of Franklin. Judge KAYE.

Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Silvestri Silvestri, Senior Judge.

PER CURIAM OPINION

Filed: December 18, 1997

Mark A. Grove (Grove) appeals from the order of the Court of Common Pleas of the 39th Judicial District, Franklin County Branch (trial court), that denied his petition to set aside the tax sale of his property due to the lack of proper statutory notice regarding said sale as prescribed by the Real Estate Tax Sale Law *fn1 (Tax Sale Law).

The underlying facts are not in dispute and are summarized as follows. Grove owns property at 13781 Karper Road in Mercersburg, Franklin County; located on the property is a house, a mobile trailer, a tool shed and a chicken coop. The house is vacant and Grove lives in the mobile trailer; both structures share a common address and a single mailbox that is located along Karper Road. No taxes were paid on either the vacant house or the property for the 1995 tax year. *fn2 The Bureau sent the notices of the impending tax sale, as prescribed by Sections 602(e)(1) and (2) of the Tax Sale Law *fn3, to Grove at his 13781 Karper Road address; notices of the impending sale were posted on both the vacant house and the tool shed on September 13, 1996. The mailed notification was returned to the Bureau without the required receipted personal signature of Grove. The property file of the Bureau contains no notation of any additional efforts *fn4 made by the Bureau to discover Grove's whereabouts prior to the tax sale of the property on September 23, 1996. *fn5

Grove filed a petition to set aside the tax sale on the basis that the Bureau failed to satisfy the notice by posting requirement of Section 602(e)(3) of the Tax Sale Law, 72 P.S. § 58602(e)(3). Grove also asserted that the tax sale of his property should have been set aside, not because the address to which the notices were sent was incorrect, but rather because of the Bureau's alleged failure to make additional efforts as prescribed by Section 607.1 of the Tax Sale Law. 72 P.S. § 5860.607a.

Following a hearing, the trial court concluded that the Bureau had met its burden of establishing that it properly posted the notice of the impending tax sale. The trial court also concluded that, since the Bureau had determined the correct address for Grove and sent the Section 602 notices to that address, no further search requirements were statutorily required. The trial court, therefore, declined to require the Bureau to conduct and document a series of events that it considered to be futile. By order of April 18, 1997, the trial court denied Grove's petition to have the tax sale set aside.

On appeal, *fn6 Grove renews the same arguments that he made before the trial court. Grove first argues that the trial court erred by failing to require the Bureau to exercise "reasonable efforts" *fn7 to discover his whereabouts after the mailed notification was returned to the Bureau without his required personal signature. We agree.

Under Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921(a), "the object of all interpretation and construction of statutes is to ascertain and effectuate the intent of the General Assembly." Additionally, "when the words of a statute are free and clear from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa. C.S. § 1921(b). Section 607.1(a) of the Tax Sale Law is unambiguous and mandates that whenever the mailed notices are returned to the Bureau without the required receipted personal signature of the addressee, then "before the tax sale can be conducted or affirmed, the bureau must exercise reasonable efforts to discover the whereabouts of such person... and notify him." 72 P.S. § 5860.607a(a). The General Assembly makes no provision for instances where, as here, the Bureau had already employed the correct address. Given the legislature's clear statement and the mandatory nature of the statutory language, this Court is constrained to conclude that Section 607.1 applies regardless of the correctness of the address to which the Bureau sent the notices. *fn8

There is no dispute that the Bureau failed to place the required notation in the property file describing its efforts to discover Grove's whereabouts. (Reproduced Transcript for Appellant, Volume II, p. 9). Furthermore, there is no evidence in the record that the Bureau engaged in any additional efforts to either discover Grove's whereabouts or to notify him after the mailed notification was returned without Grove's signature. The sole witness presented by the Bureau merely testified that he posted the property on September 13, 1996. It is apparent that the Bureau failed to satisfy its burden of proving that it performed any of the required additional notification efforts mandated by Section 607.1 of the Tax Sale Law.

Accordingly, the order of the trial court will be vacated and the case remanded for the trial court to issue an order granting Grove's petition to have the tax sale of his property set aside. *fn9

The decision in this case was reached before the death of Senior Judge Silvestri.

Judge Smith concurs in the result only.

PER CURIAM ORDER

AND NOW, this 18th day of December, 1997, the order of the Court of Common Pleas of the 39th Judicial District, Franklin County Branch, dated April 18, 1997, is vacated and the case is remanded to the trial court with directions consistent with this opinion.

Jurisdiction relinquished.


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