The opinion of the court was delivered by: Judge Butler
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Leroy W. Schooley (Schooley) appeals to this Court from the November 20, 2009 order of the Court of Common Pleas of Beaver County (trial court) denying his Petition to Upset Tax Sale, wherein Schooley alleged defective posting of the notice required by Section 602(e)(3) of the Real Estate Tax Sale Law (Tax Sale Law).*fn1 Schooley raises one issue for this Court's review: whether the Beaver County Tax Claim Bureau (Tax Claim Bureau) complied with the requirements of the Tax Sale Law in posting its notice of the impending tax sale of Schooley's property on the rear of his residence. For reasons that follow, we reverse the trial court's order.
At all relevant times, Schooley resided on the property at issue, 1048 State Route 168 in Darlington, Beaver County, PA. He had fallen delinquent on his real estate taxes for the years 2006 and 2007. As a result, the Tax Claim Bureau listed the property for tax sale, ultimately selling the same to E.D. Lewis (Purchaser) for $10,161.06 on September 15, 2008. Schooley filed a timely objection to the sale asserting, inter alia, defective posting of the notice required by the Tax Sale Law. The trial court upheld the sale, concluding that any defect in posting did not warrant overturning the sale. Schooley now appeals to this Court.*fn2
The parties do not dispute the fact that Schooley received actual notice of the sale at issue, although Schooley claims to have misread the notice and appeared at the taxing office to pay the delinquent taxes on September 18, 2008, three days after the sale at issue.*fn3 As noted, the present dispute concerns the posting of the tax sale notice on the property. For reasons not addressed by the trial court, the notice in question was twice posted on only the rear door of the residence. "The property was located [more or less] 500 feet*fn4 from the public road on a private lane." Trial Ct. Mem. Op. at 3. The trial court described the residence as, "a remote property with no direct road." Id. Thus, the trial court upheld the sale citing Popple v. Luzerne County Tax Claim Bureau,*fn5 and In re Tax Sale of 2003 Upset (Tax Sale of 2003 Upset),*fn6 reasoning that any defect in posting did not provide sufficient reason to overturn the sale, as the owner received actual notice from the posting at issue.
On appeal, Schooley argues that according to Ban v. Tax Claim Bureau of Washington County,*fn7 the Tax Sale Law required posting on the front-door of his property where it would have been visible from the public street, providing notice to the public at large, conspicuous and reasonably calculated to provide notice to the general public. Because the residence faces Route 168 and there is an unobstructed view between the residence and Route 168, Schooley contends that the taxing office violated the Tax Sale Law by posting the notice inconspicuously on the rear door of his residence where it provided no notice to the public at all. Such public notice by posting is required in order to sufficiently protect the due process rights of the homeowner. The burden of proving compliance with all notice requirements rests with the taxing office. Schooley argues that the taxing office failed to meet its burden, and that because the Tax Sale Law requires strict compliance, the sale must be set aside pursuant thereto.
The Purchaser counter-argues*fn8 that this Court has rejected the rigid formalistic approach advanced by Schooley, in favor of a common sense approach to determine reasonableness of posting. According to Purchaser, the trial court properly took the same common sense approach in the instant matter. "It was for the trial court to make a finding whether it was 'not likely' that anyone would have seen the posting given the subject property's distance from the public road. Indeed, there was substantial evidence in the record to support the finding that the property was 'remote' with 'no direct road.'" Intervenor-Appellee's Br. (Appellee's Br.) at 7. Further, Purchaser argues, this Court has consistently found waiver and upheld tax sales despite technical deficiencies where taxpayers had actual notice.*fn9 Thus, in this case, Schooley was afforded the due process to which he is entitled under the Tax Sale Law because he had express actual notice prior to the sale. Crucial to Purchaser's position is the contention that Ban should not be regarded as controlling because it is a 1997 case and must be read in light of the more recent decisions of this Court.
We now reaffirm Ban as controlling law in this Commonwealth, and hold that the trial court erred in failing to apply the principles set forth therein. While Section 602(e)(3) of the Tax Sale Lawstates, in relevant part, "[e]ach property scheduled for sale shall be posted at least ten (10) days prior to the sale," the courts are responsible for applying the Tax Sale Law in such a manner as to afford property owners due process of law with respect to tax sales. In so doing, this Court has interpreted and applied Section 602(e)(3) with respect to varying scenarios, including that which is now before the Court, the scenario wherein the required notice is posted to the back-door of a residence as opposed to the front-door. Specifically, this Court was faced with the same scenario in Ban. There, this Court reversed a trial court decision to uphold a tax sale where, as here, the property owner had actual notice of the sale and the taxing office posted notice of the pending sale on a rear entrance door, not visible from the public street or sidewalk fronting the property. This Court reasoned that notice provisions are to be strictly construed, that strict compliance is required to prevent deprivation of property without due process of law, and that if notice is defective, then the sale is void. Significantly, this Court explained that the courts: "must consider not only whether the posting is sufficient to notify the owner of the pending sale, but provides sufficient notice to the public at large. . . ." Id., 698 A.2d at 1388. Thus, according to Ban, the Tax Sale Law's notice requirement includes the requirement that notice be posted such that it can be seen by the public, is conspicuous, and is placed in such a manner so as to attract the attention of an ordinary passerby. Actual notice to the property owner does not cure defective posting. Id.; see also O'Brien v. Lackawanna Cnty. Tax Claim Bureau, 889 A.2d 127 (Pa. Cmwlth. 2005) (holding actual notice does not cure the defect that exists where a posting is not reasonably calculated to provide notice to the general public).
The concern noted in Ban was that the posting at issue was not visible from the public street or the sidewalk fronting the property. Such is the case here. And while Ban explained that the posting must provide sufficient notice to the public at large, in this case, the posting provided no notice at all to the public at large. The posting at issue here was not posted such that it could be seen by the public, was not conspicuous, and was not placed in such a manner so as to attract the attention of an ordinary passerby. Thus, Ban clearly compels reversal of the trial court's order.
Purchaser is correct, however, in that cases have been brought before this Court subsequent to Ban, wherein this Court has further defined what is required by due process under the Tax Sale Law with respect to posting. Thus, while Ban sets forth the general rule that posting the back-door or backside of a residence (the side opposite the public highway) is absolutely unacceptable as a substitute for conspicuous posting, the cases relied upon by the trial court (Tax Sale of 2003 Upset and Popple) indicate that this Court has made exceptions to the general rule requiring strict compliance with the conspicuous posting requirement.
In Tax Sale of 2003 Upset, this Court made an exception to the general rule requiring strict compliance because there was no building on the property at issue and a notice was posted where it was likely to be seen by the general public.*fn10
Such is not the case here, as there is a home on the property at issue in the matter now before the Court, and notice was not posted where it was likely to be seen by the general public. Therefore, the exception created in Tax Sale of 2003 Upset is not at all applicable to the matter now before the Court.
This Court also made an exception to the rule requiring strict compliance with the conspicuous posting requirement in Popple. There, the exception was made, in part, because under the "unusual facts" and unique circumstances presented, providing notice to the general public via posting could not be accomplished due to the fact that the property was without a direct road and, thus, very difficult to access. Here, the record indicates that the front of the property at issue was visible from State Route 168, sitting at a distance of no greater than 500 feet from the public road, with a driveway extending from the road to the residence. Thus, the property at issue was not difficult to view or access, as was the case in Popple. Further, the trial court made no finding as to whether a conspicuous posting on the front-door of the property (or front-yard for that matter) would have been visible to an ordinary passerby on the public road, ...