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Gerald W. Horton and Susan M. v. Washington County Tax Claim Bureau and E.D. Lewis

May 21, 2012

GERALD W. HORTON AND SUSAN M. HORTON, HUSBAND AND WIFE
v.
WASHINGTON COUNTY TAX CLAIM BUREAU AND E.D. LEWIS APPEAL OF: E.D. LEWIS



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Argued: November 15, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1 HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY

JUDGE McCULLOUGH

E.D. Lewis (Lewis) and Washington County Tax Claim Bureau (Bureau) appeal from the December 29, 2010, order of the Court of Common Pleas of Washington County (trial court) granting the petition to set aside an upset tax sale filed by Gerald W. Horton and his wife Susan M. Horton. We affirm.

The Hortons reside at 18611 Avenue Monaco, Lutz, Florida. On June 22, 2006, they purchased the property at issue, a condominium unit in the Fairways Condominium at Southpointe, located at 1021 Eagle Point Drive, Canonsburg, in Cecil Township, Washington County, Pennsylvania. The Hortons paid $200,000 cash for the property; they executed the purchase via mail and fax and relied on a settling agent, Mezzo Settlement Services (Mezzo).

The deed to the property contained three errors: the Hortons' names were listed as "Jerry W. Horton" and "Susan W. Horton," and their residence was certified as 1021 Eagle Point Drive instead of their Florida residence. At the time of closing, Mr. Horton instructed Mezzo to provide the Florida address to the tax collector for real estate billing related to the property, but Mezzo apparently failed to do so.

The condominium was used for business purposes related to the Hortons' company, USG Insurance Services, Inc. (USG), which is headquartered at 14499 North Dale Mabry, Tampa, Florida, and has a local office at 1000 Town Center Way, Canonsburg, Pennsylvania.*fn2 The property was not occupied and had no mailbox key, since mail was not delivered to that address.*fn3 At all relevant times, the only address the Bureau had for the Hortons was the address derived from the deed.

The Hortons did not pay property taxes for the years 2007 and 2008 prior to the September 23, 2009, tax upset sale. Lewis purchased the property on that date for the upset price of $10,298.96; there were no competitive bidders. David Holland, Esq., Lewis' attorney, eventually located the Hortons in the course of an action to quiet title. On November 18, 2009, the Hortons filed a Petition to Open/Set Aside the Upset Tax Sale.

The trial court held a hearing on April 22, 2010. During the hearing, Yvonne Orsatti, the Bureau's finance and operations manager, testified that the

Bureau took the following steps. On April 2, 2008, the Bureau sent a courtesy letter to the Hortons at the Eagle Point Drive address; it was returned by the United States Postal Service (USPS) with the notation "No such number." On May 6, 2008, the Bureau checked and found no records for the Hortons in the Prothonotary's Office, the County Tax Assessment office, or the County Treasurer's Office, and the 2007 Lien Docket revealed no change of address. The Bureau also checked Accurint Search Assistant, an internet search, which revealed a Susan W. Horton in Lancaster Pennsylvania, and revised the records in the Tax Assessment Office accordingly. On February 18, 2009, the Bureau checked voter registration records and found no listing for either of the Hortons; it also conducted an address search on "Switchboard," an on-line directory, which revealed the Eagle Point Drive address for both Hortons and indicated that their telephone number was unpublished. A search in Accurint (PA) turned up 89 listings for Jerry/Gerald Horton and 13 for Susan Horton. In March 2009, a delinquent tax statement was mailed to the Lancaster address and returned by the USPS marked "Return to Sender -- Attempted -- Not Known-Unable to Forward." The Bureau then changed its records back to reflect the Eagle Point Drive address. On May 26, 2009, the Bureau again checked the Prothonotary's Office and the Register of Wills, the Tax Assessment office and the Treasurer's office and found the same Eagle Point Drive address. The Bureau sent a courtesy pre-sale warning letter to the Hortons on May 29, 2009, by first class mail, which was returned by the USPS marked "Return to Sender -- Attempted-Not known --Unable to Forward."

The Bureau sent 2009 Upset Tax Sale notices via certified mail, restricted delivery, to each of the Hortons on July 14, 2009, to the Eagle Pointe Drive address, and each was returned with the notation "Not Deliverable as Addressed-Unable to Forward." On July 22, 2009, a Bureau agent posted the property and signed an affidavit indicating that personal service was attempted but not made because there was no answer at the property. The Bureau advertised the property for the September 23, 2009, tax upset sale in the county legal journal and local newspapers on August 20, 2009.

The second Sale Notice for the 2009 Tax Upset Sale was sent by first class mail on August 27, 2009, to each of the Hortons at the Eagle Pointe Drive, Canonsburg, Pennsylvania, address. Both notices were returned by the USPS marked "Not deliverable as addressed-Unable to forward." (Trial court's Finding of Fact No. 8k.)

In addition to Orsatti's testimony, the Bureau submitted all Bureau records related to the property and the tax sale as well as a summary of the tax sale procedures followed by the Bureau, which was prepared by Orsatti after the tax sale. Among the Bureau's documents were a "United States Postal Service Consolidated Postage Statement - First Class or Priority Mail," dated August 27, 2009, which reflects a mailing of 2,913 pieces, (R.R. at 289-90a), and an attachment containing a list of property owners to whom the August 27th mailings were sent. The Bureau also submitted the envelopes sent separately to Mr. and Mrs. Horton on August 27, 2009, ...


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