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In re Upset Sale Tax Claim Bureau McKean County on September 10

January 28, 2009


The opinion of the court was delivered by: Judge Cohn Jubelirer

Argued: December 8, 2008



Rebecca Miller (Purchaser) appeals from the order of the Court of Common Pleas of McKean County (trial court), which set aside a tax sale on the grounds that there was inadequate public notice of the sale. The sole issue on appeal is whether posting notice of a tax sale on the front door of a property, which is located approximately fifty yards from a private roadway and is not visible from a public roadway, complies with Section 602(e)(3) of the Real Estate Tax Sale Law (Law).*fn1

The property, a hunting camp, was jointly owned by David Haskins, John A. Haskins, and Deborah Haskins (collectively, Owners)*fn2 and sold at a tax upset sale to Purchaser on September 10, 2007. Owners filed Objections on December 4, 2007. Purchaser was granted the right to intervene and the matter was heard before the trial court on March 26, 2008.

The evidence presented before the trial court established that Owners were delinquent in the payment of their real estate taxes for the year 2005.*fn3 Owners stipulated that they received timely Notices of Return and Claim and the Notices of Sale mailed by the McKean County Tax Claim Bureau (Bureau). Owners also stipulated that the Bureau properly published the Notice of Tax Sale as required by Section 602 of the Law, 72 P.S. § 5860.602. The only issue before the trial court was whether the Bureau properly posted a Notice of Sale on the property pursuant to Section 602(e)(3).

The property fronted a private road known as Ponderosa Drive, about one quarter of a mile from the public road. Although the property was not visible from the public road, it was visible from Ponderosa Drive.

On July 16, 2007, two employees of the McKean County Assessment Office posted the property with a Notice of Tax Sale (Notice). Jane Freer (Freer) testified that she and another employee, Roberta Fraes, went to the property to post the Notice. (Hr'g Tr. at 19, 22-23, March 26, 2008.) Freer testified that, on the day she posted the Notice, someone was operating a backhoe on the property.

(Hr'g Tr. at 20.) Freer scotch-taped the Notice onto the wooden front door. (Hr'g Tr. at 20, 25.) The Notice was printed on standard 81/2 by 11-inch paper and measured 6 1/2 by 7 inches. After Freer taped the Notice on the front door, she photographed it and left. (Hr'g Tr. at 20-21, 25.) Freer testified that the Notice was conspicuous, that it could be seen by someone approaching the property, and that it was visible from the private road. (Hr'g Tr. at 20.) Freer also testified that the property was not visible from the public road. (Hr'g Tr. at 31.)

Owners presented the testimony of Earl Burdick (Burdick), whose house is approximately 100 yards in front of Owners' hunting camp. Burdick testified that he drove by Owners' property approximately 10-12 times after the Notice was posted, but did not see it. (Hr'g Tr. at 71-73.)

The trial court set aside the tax sale. The trial court reasoned that "[b]ecause the [N]notice was not conspicuous such that it will be seen by the public, it was not sufficient to notify the public of the tax sale." (Trial Ct. Op. at 4, July 15, 2008.) The trial court noted that the Notice was only 61/2 inches by 7 inches and was taped to the front door, which stood fifty yards from the private road. The trial court found that "the property is not visible from, and the notice cannot be read from, the public road." (Trial Ct. Op. at 4 (emphasis added).) Further, the trial court determined that from the distance between the front door of the property and the private road, "one would not be able to read the notice that is the size of the notice at issue." (Trial Ct. Op. 4 (emphasis added).)

On appeal,*fn4 Purchaser argues that the trial court erred when it set aside the tax sale on the grounds that the posted Notice was not capable of being viewed or read from the public road. This Court must agree with Purchaser.

The law "is well settled in Pennsylvania that a valid tax sale requires strict compliance with all three of the notice provisions of Section 602" of the Law*fn5 and that, if any of the notices are "defective, the sale is void." In re Upset Price Tax Sale of September 25, 1989, 615 A.2d 870, 872 (Pa. Cmwlth. 1992). Strict compliance is necessary "to guard against the deprivation of property without due process of law." In re Upset Price Tax Sale of September 10, 1990 (Sortino), 606 A.2d 1255, 1258 (Pa. Cmwlth. 1992).

Our Supreme Court has explained that a presumption of the regularity of an official act, herein posting, "exists until the contrary appears." Hughes v. Chaplin, 389 Pa. 93, 95, 132 A.2d 200, 202 (1957) (quoting Beacon v. Robinson, 43 A.2d 640, 643 (Pa. Super. 1945)). A property owner may create a contrary appearance and overcome this presumption by filing exceptions to the tax sale, averring that the Law's notice provisions were not strictly followed. Sortino, 606 A.2d at 1257. The burden ...

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