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McKelvey v. Westmoreland County Tax Claim Bureau

October 30, 2009

BRIAN SCOTT MCKELVEY
v.
WESTMORELAND COUNTY TAX CLAIM BUREAU, AND BRIAN K. CAREY AND JACK E. HERBERT
APPEAL OF: BRIAN K. CAREY AND JACK E. HERBERT



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

Argued: October 13, 2009

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Brian K. Carey and Jack E. Herbert (together, Appellants) appeal from the November 19, 2008, order of the Court of Common Pleas of Westmoreland County (trial court) denying their motion for post-trial relief from the trial court's August 27, 2008, order invalidating a tax sale. We affirm.

Brian Scott McKelvey (Owner) was the record owner of property located at 1600 McKelvey Road, Ligonier Township, Westmoreland County, Pennsylvania, comprising 170 acres of land, a brick dwelling, a barn and other outbuildings (Property). Owner, who is 52 years old, has always lived on the Property and took title to it in 1986. In 2006, the 2005 realty taxes against the Property were returned to the Westmoreland County Tax Claim Bureau (Bureau) for collection. The Bureau sent a Notice of Return and Claim to Owner by certified mail, and Owner signed the return receipt card on April 28, 2006. Because the taxes remained unpaid, the Bureau sent Owner a Notice of Public Sale, also by certified mail, and Owner signed the return receipt card on May 30, 2007. The sheriff's office posted the Property on July 10, 2007, in the yard near the house. At that time, the deputy sheriff also attempted to personally serve Owner with notice of the public sale by knocking on his door; when there was no response, the deputy sheriff left and took the notice with him. The sale proceeded as scheduled and, on September 10, 2007, Appellants purchased the Property for $135,025. Owner did not file exceptions to the tax sale, and the Bureau conveyed the Property to Appellants by deed recorded December 17, 2007.

On January 3, 2008, Owner filed a complaint in equity, asserting that the tax sale should be set aside because the Bureau failed to provide him personal service of notice of the sale or, alternatively, request the court's permission to waive the requirement of personal service, as required by section 601(a)(3) of the Real Estate Tax Sale Law (Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §5860.601(a)(3).*fn1

Section 601(a)(3) of the Law states as follows:

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.. The sheriff or his deputy shall make a return of service to the bureau. 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.

72 P.S. §5860.601(a)(3).

Appellants filed an answer and new matter averring that the lack of personal service should be deemed to be of no legal consequence because Owner had actual knowledge of the tax sale. Owner filed a reply, admitting that he received notices of the delinquency and tax sale from the Bureau, that a Sale Notice was properly posted on the Property and that he would have been personally served with the same notice had he been home when the deputy sheriff posted the Sale Notice and attempted personal service.

The trial court conducted a non-jury trial. The Bureau's evidence showed that it had sent notices to Owner by certified mail. The Bureau also established that the deputy sheriff posted the Property and unsuccessfully attempted to personally serve Owner. The Bureau stipulated that it did not subsequently petition the trial court for an order waiving the personal service requirement.

Owner testified that he has been paying taxes on the Property since 1986. He acknowledged that he received the notices from the Bureau informing him that his taxes were delinquent and that the Property would be sold at a tax sale on September 10, 2007, at 10:00 a.m., in the courthouse. Owner also testified that he saw the Sale Notice posted on the Property and read and understood it. He conceded that, although he knew that the Property would be subject to sale in September 2007 if he did not pay the taxes, he did not try to make any payment arrangements. Owner confirmed the testimony of Bureau director Yvonne Hayes that, since 1996, he typically was late paying taxes, he had received similar notices from the Bureau in the past, and he had paid his taxes in September of nearly each year to remove the Property from the tax sale list.

The trial court concluded that the Bureau's failure to comply with the personal service requirements of section 601(a)(3) of the Law rendered the sale invalid, rejecting Appellants' argument that the sale should be upheld based on Owners' actual notice. Accordingly, by order dated August 27, 2008, the trial court set aside the tax sale.

Thereafter, Appellants filed a motion for post-trial relief, citing Cruder v. Westmoreland County Tax Claim Bureau, 861 A.2d 411 (Pa. Cmwlth. 2004), appeal denied, 582 Pa. 703, 871 A.2d 193 (2005); Sabbeth v. Tax Claim Bureau of Fulton County, 714 A.2d 514 (Pa. Cmwlth. 1998); In re: Return of McKean County Tax Claim Bureau, 701 A.2d 283 (Pa. Cmwlth. 1997); and In re: Tax Claim Bureau of Lehigh County 1981 Upset Tax Sale Properties, 507 A.2d 1294 (Pa. Cmwlth. 1986) (Hass), appeals denied, 514 Pa. 640, 523 A.2d 346 (1987), in support of their argument that the sale should be upheld based on Owner's actual notice. By order dated November 19, 2008, the trial court denied Appellants' motion. Recognizing that our appellate courts have not addressed the issue of actual notice to an owner occupant, the trial court relied on the common ...


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