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In re Return and Report of an Upset Tax Sale held by the Cumberland County Tax Claim Bureau on September 20

July 24, 2009

IN RE RETURN AND REPORT OF AN UPSET TAX SALE HELD BY THE CUMBERLAND COUNTY TAX CLAIM BUREAU ON SEPTEMBER 20, 2007 RE: PROPERTY OF DAVIDSON M. BLACK PARCEL NO. 38-05-0437-002B APPEAL OF: DAVIDSON BLACK


The opinion of the court was delivered by: Senior Judge Kelley

Submitted: March 31, 2009

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION NOT REPORTED

MEMORANDUM OPINION

Davidson M. Black (Black) appeals from an order of the Court of Common Pleas of Cumberland County (trial court), which dismissed his objections to the upset tax sale of his property. We affirm.

Black was the owner and occupant of a 23.66-acre tract of land with improvements (trailer, barn and shed) located at 25 Penny Lane, Silver Spring Township, Cumberland County, Pennsylvania (Property). Black purchased the Property in 1974 and has owned the Property, either individually or jointly, since that time. On September 20, 2007, the Property was subject to an upset tax sale and sold to Martin Weller, who executed an assignment to James P. Halkias.

On October 1, 2007, the Cumberland County Tax Claim Bureau (Bureau) filed a Petition for Confirmation of the upset tax sale held on September 20, 2007. On October 31, 2007, Black filed objections and exceptions to the confirmation and petitioned to vacate the upset tax sale on the basis that he was not personally served with notice of the tax sale by the sheriff.

A hearing before the trial court was held on July 31, 2008. On behalf of the Bureau, Deputy Sheriff David McKinney, Melissa Mixell, director of the Bureau, and Maryann Snyder, county assessor for real estate taxes, testified. Black testified and presented the testimony of his friend, George "Buz" Bilkowsky, Jr.

The trial court summarized the evidence as follows. Leading up to the tax sale on September 20, 2007, the Bureau sent all notices and posted the Property as required by Section 602 of the Real Estate Tax Sale Law (Law)*fn1 . Black was present when Maryann Snyder posted the Property on April 17, 2006. Snyder testified that she saw Black take the posting off the front door of his mobile home.

Deputy Sheriff David McKinney filed an affidavit of return that he personally served an upset tax sale notice upon Black at the Property on August 14, 2007. At the hearing, McKinney, who has since retired, testified that he remembered serving Black the notice. McKinney testified that a man opened the door of the home and McKinney asked him if he was Davidson Black. The man said he was. McKinney handed him the notice, told him what it was and advised him to read it and take action. On cross examination, McKinney could not identify the person he served in the courtroom, responding, "I don't know. As I said, I serve so many papers."

Melissa Mixell testified and presented a memorandum of an exchange she had with Black the day after the upset tax sale. According to Mixell, Black came to the office on September 21, 2007 to pay his back taxes with cash. Mixell informed him the sale occurred the day before and that the Property had been sold. Black said he was out of town on September 20, 2007, but called the office and said he would be in the day after the sale with the payment. Mixell checked with a co-worker, notes on the account and all voice mail messages, but there was no record of any such call.

Black testified that he is a truck driver and is often not at the Property. Black testified that when Snyder posted notice at the Property, he asked her to let him have the posting and "she said, no, I have to post this. I said, okay. So she stuck it to the door, and I pulled it off the door." Black testified that he was not at his Property on August 14, 2007 and was not personally served with a notice of the tax sale. He testified he was ill on September 20, 2007 and had lost track of the sale date, but went to the Bureau the next morning with enough cash to pay the taxes.

George "Buz" Bilkowsky testified that he knew Black for 15 years and was staying at the Property on August 14, 2007, but Black was not there. Bilkowsky testified that McKinney asked if this was Black's place, not if he was Black. Bilkowsky testified that he told the deputy that it was Black's Property. McKinney handed him some papers and told him to make sure to give them to Black. Bilkowsky testified he put the papers on the shelf of a shed, but does not think he told Black about the notice. Black testified the notice was not on the shelf of his shed and he never received it.

The trial court did not find the testimony of Black or Bilkowsky to be credible, noting multiple conflicts and describing portions of their testimony as "not believable." The trial court credited the Bureau's witnesses. The trial court ultimately found that Black was personally served with the notice of tax sale as required by the Law and that all other requirements of the Law pertaining to the sale on September 20, 2007 were met. By order dated August 21, 2008, the trial court dismissed ...


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