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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

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


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 Black's exceptions to the tax sale of the Property. This appeal now follows.*fn2 Black raises the following issues for our review:

1. Whether the testimony and evidence presented by the property owner at the hearing in this matter "indicates" that he was not personally served with notice of tax sale in accordance with the requirements of Section 601(a)(3) of the Law, 72 P.S. §5860.601(a)(3), as interpreted in the case of In re Sale of Real Estate by Montgomery Tax Claim Bureau for 1997 Delinquent Taxes, 836 A.2d 1037 (Pa. Cmwlth. 2003).

2. Whether the trial court committed an error of law or abuse of discretion in finding the testimony of the deputy sheriff credible where he was the only public official unable to identify the property owner in the courtroom, admitted that he did not ask the person he served for identification, and improperly described the Black's residence.

First, Black contends that the testimony and evidence he presented at the hearing "indicates" that he was not personally served with notice of tax sale in accordance with the requirements of Section 601(a)(3) of the Law, as interpreted in the case of Montgomery Tax Claim Bureau. We disagree.

The purpose of a tax sale is not to strip an owner of his property but rather to insure the tax on the property is collected. Tracy v. Chester County, Tax Claim Bureau, 507 Pa. 288, 489 A.2d 1334 (1985); Murphy v. Monroe County Tax Claim Bureau, 784 A.2d 878 (Pa. Cmwlth. 2001). The sale of real estate to satisfy delinquent property taxes is subject to strict compliance with due process safeguards set forth in the Law. The Law imposes a series of notification requirements by publication, certified mail, and posting before a tax claim bureau can sell real property for delinquent taxes. Section 602 of the Law, 72 P.S. §5860.602. In some cases, personal service is required. Section 601(a)(3) of the Law, 72 P.S. §5860.601(a)(3); Montgomery Tax Claim Bureau. Section 601(a)(3) of the Law provides:

No owner-occupied property may be sold unless the bureau has given the owner occupant written notice of such sale at least ten (10) days prior to the date of actual sale by personal service by the sheriff or his deputy or person deputized by the sheriff for this purpose unless the county commissioners, by resolution, appoint a person or persons to make all personal services required by this clause. The sheriff or his deputy shall make a return of service to the bureau, or the persons appointed by the county commissioners in lieu of the sheriff or his deputy shall file with the bureau written proof of service, setting forth the name of the person served, the date and time and place of service, and attach a copy of the notice which was served. If such personal notice cannot be served within twenty-five (25) days of the request by the bureau to make such personal service, the bureau may petition the court of common pleas to waive the requirement of personal notice for good cause shown. Personal service of notice on one of the owners shall be deemed personal service on all owners.

(Emphasis added). The tax claim bureau bears the burden of proving that it has complied with all the statutory notice requirements. Montgomery Tax Claim Bureau; In re 1999 Upset Sale of Real Estate, 811 A.2d 85 (Pa. Cmwlth. 2002).

"In the absence of fraud, the return of service of a sheriff, which is full and complete on its face, is conclusive and immune from attack by extrinsic evidence." Montgomery Tax Claim Bureau , 836 A.2d at 1041 (quoting Hollinger v. Hollinger, 416 Pa. 473, 476, 206 A.2d 1, 3 (1965)). The conclusive nature of the sheriff's return of service is limited to the facts stated in the return of which the sheriff has personal knowledge. Id. The rule of conclusiveness is based on the presumption that the sheriff acted with propriety in the conduct of his official duties. Id. "The presumption is rebuttable and must yield if the evidence indicates the contrary." Id. (quoting In re Upset Sale, Tax Claim Bureau of Montgomery County, 448 A.2d 696, 699 (1982)).

In Montgomery Tax Claim Bureau , this Court found that the evidence did not support a finding that personal service was made in compliance with Section 601(a)(3) of the Law. We noted that although the taxing bureau presented evidence of the deputy sheriff's affidavits of service, the deputy's own testimony contradicted the affidavits. The affidavit of personal service for the residential property stated, "Would not come to door, left as refused." 836 A.2d at 1041. On its face, the affidavit did not demonstrate that the deputy sheriff effected personal service, and the deputy's testimony did not support a finding that personal service was made or that the property owner refused service. Id. At the hearing, the deputy changed his testimony that he saw the property owner in her kitchen when he peered through the front door when he was confronted with the fact that the kitchen was not visible from the front door, and on cross-examination he stated his belief that if the owner had heard him knocking she would have answered the door. Id. Thus, we concluded that the evidence did not support a conclusion that the owner was personally served with notice of the tax sale. Id. We further determined that the posting notice was likewise defective. Id. On these grounds, we determined the property should not have been exposed for tax sale. Id.

Here, the return of service states that Black was personally served with the upset tax sale notice. In support thereof, McKinney credibly testified that he went to the Property, knocked on the door, asked the person who answered if he was Black, the person responded "yes," and he handed him the notice. Reproduced Record (R.R.) at 67a. Relying upon Montgomery Tax Claim Bureau , Black contends that he presented evidence "indicating" that personal service was not made by the sheriff's office. Black and Bilkowsky both testified that Black was not present at the Property on August 14, 2007 -- the day that McKinney purportedly served Black with personal notice of the tax sale. Black testified that only after the sale of the Property did he discover that Bilkowsky was at the Property and accepted service; Bilkowsky corroborated this testimony. However, the trial court did not credit this testimony, citing numerous conflicts. The trial court instead credited the testimony of the McKinney that he personally served Black. Unlike the sheriff's testimony in Montgomery Tax Claim Bureau, McKinney's testimony was consistent with his return of service. While McKinney could not identify Black, who was seated in the rear of the courtroom, the deputy explained he was not certain because he serves so many papers. R.R. at 72a.

Even assuming the Bureau's personal service was defective, it would not change the fact that Black had actual notice of the tax sale. While actual notice to a record owner will not necessarily cure a defect in the posting because the purpose of the posting is to notify the public at large as well as the record owner, actual notice to a record owner can cure a defect in personal service. In re Sale of Real Estate Northampton County Tax Claim Bureau, 874 A.2d 697 (Pa. Cmwlth. 2005); see, e.g., In re Tax Claim Bureau of Lehigh County 1981 Upset Tax Sale Properties, 507 A.2d 1294 (Pa. Cmwlth. 1986)*fn3 (finding that failure to attempt personal service to the owner did not invalidate the upset sale because the owner had actual notice). The purpose of personal service is to make sure that actual notice is received by the landowner. Northampton County Tax Claim Bureau. Where the interested party actually receives notice of the sale, the purpose underlying the personal service requirement is accomplished, and so the court may excuse the defect. Id. Therefore, actual notice of the tax sale can cure any defect in personal service.

In this case, actual notice was not only proven, it was admitted by Black when he testified that he tore down the notice of sale posted on his Property, knew it was notice of a tax sale and that his Property would be sold on September 20, 2007. R.R. at 134a-135a. Black's actual notice of the pending tax sale would therefore waive any alleged defects in personal service.

Black further contends that the trial court committed an error of law or an abuse of discretion in finding the testimony of the deputy sheriff credible where he was the only public official unable to identify the property owner in the courtroom, admitted that he did not ask the person he served for identification, and improperly described the Black's residence. We disagree.

Questions of credibility, conflicts in evidence and weight to assign evidence are matters for a trier of fact to resolve and will not be disturbed on appeal. Consolidated Return by McKean County Tax Claim Bureau of 9/12/2000, 820 A.2d 900 (Pa. Cmwlth. 2003). As discussed above, McKinney's return of service is presumptively valid, but rebuttable and must yield if the evidence "indicates" that service was not in fact made. Montgomery Tax Claim Bureau.

The only contrary evidence was testimony given by Black and Bilkowsky, but the trial court found their testimony lacked credibility, specifically where it conflicted with McKinney's testimony. Evidence which is not believed does not "indicate" that service was not made. We, therefore, conclude that the trial court did not err in this regard.

Accordingly, the order of the trial court is affirmed.

ORDER

AND NOW, this 24th day of July, 2009, the order of the Court of Common Pleas of Cumberland County, at Docket No. 07-5738 Civil Term, dated August 21, 2008, is AFFIRMED.

JAMES R. KELLEY, Senior Judge


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