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In re Upset Tax Sale September 13

July 24, 2009

IN RE: UPSET TAX SALE SEPTEMBER 13, 2006 1333 ELSON ROAD CHESTER TOWNSHIP TAX PARCEL NO. 07-00-00294-31
APPEAL OF: PATRICK T. CARNEY



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

Argued: June 11, 2009

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Patrick T. Carney appeals from the September 24, 2007, order of the Court of Common Pleas of Delaware County (trial court) denying Carney's petition to set aside the September 13, 2006, upset tax sale of the premises located at 1333 Ellison Road, Delaware County, Pennsylvania (Property). We reverse.

In 2004, Russell J. Jones owned the Property with a mortgage guaranteed and/or insured by the United States Veterans Administration. Because real estate taxes on the Property were unpaid for the tax year 2004, the Property became the subject of an upset tax sale pursuant to section 601 of the Pennsylvania Tax Sale Law*fn1 (Law), 72 P.S. §5860.601. On April 2, 2005, the Delaware County Tax Claim Bureau (Tax Claim Bureau) sent a Notice of Return and Claim to Jones; however, the Notice of Return and Claim was returned to the Tax Claim Bureau as unclaimed and was subsequently posted at the Property by the Delaware County Sheriff's Department. (R.R. at 25-30.)

Thereafter, the Secretary of Veterans Affairs (V.A.) foreclosed on Jones' mortgage, and by Sheriff's deed recorded on December 22, 2005, the V.A. became the record owner of the Property. (R.R. at 18, 42-46.) As required by section 602(e)(1) of the Law, 72 P.S. §5860.602(e)(1), the Tax Claim Bureau mailed notice of the upset tax sale to the V.A. at the address set forth in the December 22, 2005, deed via certified mail, return receipt requested. Receipt of this notice was signed for by Larry Nicholson at the stated address. (R.R. at 49-50.) In addition, notice of the upset tax sale was properly published and posted by the Tax Claim Bureau pursuant to section 602(a) of the Law, 72 P.S. §5860.602(a). (R.R. at 32-40.)

After all statutorily required notices had been given, the Tax Claim Bureau conducted the upset tax sale of the Property on September 13, 2006, at which Arthur F. Urbany, the authorized General Partner for Allied Property Brokerage (Purchaser), was the successful bidder. On or about October 16, 2006, the Tax Claim Bureau sent post-sale notice of the September 13, 2006, upset tax sale to the V.A. by certified mail, return receipt requested, as required by section 607(a.1) of the Law, 72 P.S. §5860.607(a.1); again, Larry Nicholson signed the certified mail return receipt card. (R.R. at 52-53.) The V.A. did not file objections to the September 13, 2006, upset tax sale.

By deed recorded on December 28, 2006, the V.A. transferred the Property from the V.A. to Carney. (R.R. at 18-23.) On March 7, 2007, after learning of the upset tax sale, Carney filed a Petition Raising Objections and Exceptions to Upset Tax Sale (Petition), seeking to invalidate the sale of the Property owned by the V.A. as violative of the privileges and immunity clause of the U.S. Constitution. (R.R. at 3-5.) The case was submitted to the trial court on stipulated facts, and Carney and Purchaser filed memoranda of law in support of their respective positions. By order dated September 24, 2007, the trial court denied Carney's Petition.

Carney appealed, and the trial court directed him to file a concise Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P. 1925(b). Carney did so, raising the issue of sovereign immunity. Specifically, Carney argued that the trial court erred in denying his Petition because an upset tax sale pursuant to section 601 of the Law is a non-judicial means of foreclosing upon a delinquent tax lien, and, pursuant to 28 U.S.C. §§2410(a) and (c), the United States consents to be sued, i.e., waives sovereign immunity, only when such action is accomplished through a judicial sale.*fn2 (R.R. at 69.)

28 U.S.C. §§2410 (a) and (c), (emphasis added), provide, in relevant part, as follows:

(a) . [F]or the protection of the United States, the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter--.

(2) to foreclose a mortgage or other lien upon, . real or personal property on which the United States has or claims a mortgage or other lien. .

(c) A judgment or decree in such action or suit shall have the same effect respecting the discharge of the property from the mortgage or other lien held by the United States as may be provided with respect to such matters by the local law of the place where the court is situated. However, an action to foreclose a mortgage or other lien, naming the United States as a party under this section, must seek judicial sale. . Where a sale of real estate is made to satisfy a lien prior to that of the United States, the United States shall have one year from the date of sale within which to redeem, except that . in any case in which, under the provisions of . subsection (d) of section 3720 of title 38 of the United States Code, the right to redeem does not arise, there shall be no right of redemption.

The trial court addressed the issue raised by Carney in a December 31, 2008, decision supporting its prior order. The trial court first recognized that the provisions of 38 U.S.C. §3720 contain a waiver of sovereign immunity arising out of Chapter 37 of the Veteran's Benefits section of the United States Code.*fn3 The trial court then explained that it dismissed Carney's Petition based upon the language in 38 U.S.C. ...


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