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In re York County Tax Claim Bureau

September 1, 2010

IN RE: YORK COUNTY TAX CLAIM BUREAU
DONALYNN PROPERTIES, INC.
v.
YORK COUNTY TAX CLAIM BUREAU JOHN J. LUCIANI AND ANN K. LUCIANI
APPEAL OF: JOHN J. LUCIANI AND ANN K. LUCIANI



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

Argued: June 21, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

John J. and Ann K. Luciani appeal from the October 8, 2009, order of the Court of Common Pleas of York County (trial court) vacating the tax upset sale of property located at 54 South Richland Avenue in York, Pennsylvania (Property). We affirm.

Donalynn Properties, Inc. (DPI) purchased the Property on July 17, 2003. DPI is a Maryland corporation solely owned by Maryland resident D. Scott Matthews. In 2006, DPI failed to pay its real estate taxes on the Property. On May 17, 2007, the York County Tax Claim Bureau (Bureau) sent DPI a tax delinquency notice via certified mail, return receipt requested, which stated:

IF YOU FAIL TO PAY THIS TAX CLAIM OR FAIL TO TAKE LEGAL ACTION TO CHALLENGE THIS CLAIM, YOUR PROPERTY WILL BE SOLD WITHOUT YOUR CONSENT AS PAYMENT FOR THESE TAXES. YOUR PROPERTY MAY BE SOLD FOR A SMALL FRACTION OF ITS FAIR MARKET VALUE. IF YOU PAY THIS CLAIM BEFORE JULY 1, 2008, YOUR PROPERTY WILL NOT BE SOLD. IF YOU PAY THIS CLAIM AFTER JULY 1, 2008, BUT BEFORE THE ACTUAL SALE, YOUR PROPERTY WILL NOT BE SOLD BUT WILL BE LISTED ON ADVERTISEMENTS FOR SUCH SALE.

The Bureau received the signed return receipt, indicating that Matthews had received the notice.

On April 1, 2008, Matthews gave DPI's property management company, Crossroads Property Management, Inc., a check for $20,000.00 for the payment of expenses and back taxes. While Crossroads paid some expenses and outstanding debts, it did not pay the back taxes because it did not receive any bills for such taxes.

On August 14, 2008, the Bureau sent DPI a Notice of Public Tax Sale via certified mail, restricted delivery, return receipt requested, to its Maryland post-office-box address. The United States Postal Service (USPS) made delivery attempts on August 16, August 21, and August 31, 2008. The Notice was ultimately returned to the Bureau as unclaimed. The Bureau also posted the Notice at the Property on August 16, 2008, and advertised the sale in three local newspapers on August 14, 2008, and August 25, 2008. The Bureau claims that, on September 10, 2008, it again mailed the Notice to DPI via first-class mail to its Maryland address. As proof of this mailing, the Bureau offered into evidence a document containing its own letterhead and a checkmark beside an entry that states, "SENT NOTICE OUT FIRST CLASS MAIL," followed by a handwritten notation of "9/10/08."

On September 25, 2008, the Bureau proceeded with the tax upset sale. The Lucianis made the winning bid and purchased the Property for $25,990.10. DPI filed a Petition to Vacate Tax Upset Sale on November 3, 2008. The Lucianis filed a response on November 12, 2008.

The trial court held a hearing on July 29, 2009. At the hearing, Matthews and Vanessa Shive, a Bureau supervisor, testified regarding the first-class mail Notice. Shive testified that after the Bureau received the unclaimed certified mail receipt, she placed the Notice in an envelope and sent it to DPI via first-class mail on September 10, 2008. (N.T., 7/29/09, at 15-16.) Shive offered into evidence an internal Bureau document with a checkmark beside an entry that states, "SENT NOTICE OUT FIRST CLASS MAIL," followed by a notation, in Shive's own handwriting, of "9/10/08." (Id. at 17-19.) Shive explained that this is the Bureau's customary practice for sending out the ten-day notice when it is returned as unclaimed. (Id. at 16.)

Matthews testified that he did not receive the first-class mail Notice until after the tax upset sale. (Id. at 43, 55.) Matthews testified that he was injured in a car accident in August 2008 and was laid up for several weeks thereafter. As a result, he did not make any trips to the post office in August or September 2008 when the tax sale notices were mailed to DPI. (Id. at 45.) It was not until after the September 25, 2008, tax sale that Matthews finally went to the post office and received the first-class mail Notice. (Id. at 43.) Matthews testified that, immediately upon receiving the Notice, he called the Bureau and was told that the property had been sold to the Lucianis. (Id. at 54-55.)

The trial court ultimately determined that: (1) the Bureau failed to provide DPI with proper notice under section 602(e)(2) of the Real Estate Tax Sale Law (RETSL), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §5860.602(e)(2);*fn1 and (2) DPI did not have actual notice of the tax upset sale. By order dated October 8, 2009, the trial court vacated the tax upset sale. The Lucianis filed post-trial ...


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