Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

City of Philadelphia v. Schaffer

March 27, 2009

CITY OF PHILADELPHIA
v.
MARION SCHAFFER, APPELLANT



The opinion of the court was delivered by: Joseph F. McCLOSKEY, Senior Judge

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

Marion Schaffer (Appellant) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), denying her motion to set aside a Sheriff's sale. The trial court also later denied a motion by Appellant for reconsideration. We now reverse.

Appellant was the owner of real property located at 116 Fitzgerald Street in the City of Philadelphia (the City). Appellant had become delinquent with respect to the real estate taxes on this property, with said taxes having been delinquent for a number of years (2000-2006) and totaling in excess of $13,000 (including interest, penalties, attorney fees and lien costs). On August 31, 2007, the City filed an amended tax claim against Appellant. On September 12, 2007, the trial court issued a rule to show cause why a decree should not be entered permitting the sale of the property due to the delinquent real estate taxes. A rule returnable hearing was scheduled for December 11, 2007. On December 5, 2007, the City filed an affidavit of service indicating that the rule to show cause and order scheduling the rule returnable hearing was served on Appellant via certified and regular mail on November 2, 2007.

The trial court proceeded with the rule returnable hearing on December 11, 2007. Appellant did not respond to the rule to show cause nor did she appear at this hearing. Following the hearing, the trial court issued a decree directing that the property be sold by the Sheriff on December 19, 2007, free and clear of all claims, liens, mortgages, ground rents, charges and estates. On December 19, 2007, the property was sold at a tax sale to Justin Krik (Purchaser). On December 21, 2007, ten days after the trial court issued its decree, the City filed an affidavit from the Sherriff attesting that the property itself was posted with a copy of the tax claim petition and rule to show cause on October 13, 2007. On January 8, 2008, the City filed an affidavit of service of the decree on Appellant by first-class mail.

On January 18, 2008, Appellant filed a motion to set aside the Sheriff's sale, alleging that the City failed to provide her with reasonable notice of the tax sale in violation of Pa. R.C.P. No. 3129.2. More specifically, Appellant alleged that the City failed to provide her with notice of the tax sale thirty days prior thereto in accordance with Pa. R.C.P. No. 3129.2(c) and failed to follow the publication requirements as set forth in Pa. R.C.P. No. 3129.2(d) (relating to publication once a week for three successive weeks in a newspaper of general circulation in the county and in the legal publication).

Appellant attached to her motion the affidavit of her nephew, James Mackin, Jr., and the affidavit of his wife, Margaret Joyce Mackin. In their affidavits, the Mackins alleged that Appellant was an elderly woman in poor health and that they handled her business affairs. The Mackins noted that upon receipt of notice of a tax lien on the property, Mrs. Mackin called the City and they arranged and did in fact pay a portion of the lien. They also requested an application for financial hardship from the law firm representing the City in September of 2007. The Mackins allege that they did not receive such application until November of 2007 and promptly returned the same on November 7, 2007 (Appellant attached to her motion to set aside a copy of this application with her signature dated November 5, 2007).*fn1 Upon subsequent contact with the law firm representing the City, the Mackins allege that they were informed that Appellant's application was under review, that, if approved, a payment agreement would be sent in the mail and that, despite a notice in the Philadelphia Daily News on December 13, 2007, the property had not been turned over to the Sheriff for a tax sale.

Mr. Mackin further alleged that during a phone conversation with the City's real estate office on December 17, 2007, he was assured that Appellant's property was not on the tax sale list. The Mackins note that another relative retrieved a letter from the property in January of 2008, which letter was dated December 13, 2007, and postmarked December 17, 2007, advising Appellant of the trial court's December 11, 2007, decree directing that the property be sold on December 19, 2007 (Appellant attached to her motion to set aside a copy of this notice and the envelope containing the same).

The City filed an answer to Appellant's motion to set aside. Purchaser thereafter intervened before the trial court and filed an answer to Appellant's motion. By opinion and order dated February 27, 2008, the trial court denied Appellant's motion to set aside the Sheriff's sale. The trial court noted that Appellant admitted that she received notice of the rule to show cause and the rule returnable hearing scheduled for December 11, 2007. The trial court indicated that the City was exempted from having to comply with Pa. R.C.P. No. 3129.2.

Instead, the trial court indicated that the City was obligated to comply with the requirements set forth in what is referred to as the Municipal Claims and Tax Liens Act (Tax Liens Act), Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§7101-7505. The trial court noted that, pursuant to Section 39.2(a) of the Tax Liens Act, added by the Act of December 14, 1992, P.L. 859, as amended, 53 P.S. §7193.2(a), cities of the first class, such as the City herein, must provide notice by posting the property with a copy of the petition and rule to show cause and serving the same on a property owner via first-class and registered mail. Additionally, the trial court noted that Section 39.2(c) of the Tax Liens Act, 53 P.S. §7193.2(c), requires the City to serve the property owner via first-class mail with notice of the decree ordering a tax sale, together with the time, place and date of the sale. The trial court noted that Appellant acknowledged that the notice required under Section 39.2(c) was mailed to her at the latest by December 17, 2007, and that she was not at the residence at that time.*fn2 The trial court concluded that Appellant failed to establish that the City did not comply with the appropriate statutory notice requirements.*fn3

Appellant filed a notice of appeal with the trial court. Purchaser thereafter filed an application for intervention, and the application was granted by order of this Court dated June 16, 2008.

On appeal,*fn4 Appellant argues that the trial court erred as a matter of law and abused its discretion in concluding that the City complied with the statutory notice requirements. We agree.

Section 39.2 of the Tax Liens Act provides, in pertinent part, as follows:

(a) In cities of the first class, notice of a rule to show cause why a property should not be sold free and clear of all encumbrances issued by a court pursuant to a petition filed by a claimant under section 31.2 of this act shall be served by the claimant upon owners, mortgagees, holders ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.