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In re Sale of Real Estate by Lackawanna County Tax Claim Bureau

Commonwealth Court of Pennsylvania

May 14, 2014

In Re: Sale of Real Estate by Lackawanna County Tax Claim Bureau, Judicial Tax Sale Property Situated at: 221 Stephen Avenue, Scranton, PA, Tax Map No. 15612-030-020, Appeal of Nicole Pascal

Submitted January 31, 2014

Appealed from No. 12 CV 7898. Common Pleas Court of the County of Lackawanna. Judge Kane, Senior Judge.

Craig A. Hoenie, Pittston, for appellant.

Joseph A. O'Brien and Michael J. O'Brien, Clarks Summit, for appellee RRR Investments, LLC.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY PRESIDENT JUDGE PELLEGRINI.[1]. DISSENTING OPINION BY SENIOR JUDGE COLINS.

OPINION

DAN PELLEGRINI, President Judge

Nicole Pascal (Pascal) appeals from an order of the Court of Common Pleas of Lackawanna County (trial court) dismissing her objections, exceptions and petition to set aside or void the judicial sale of her real property pursuant to the Real Estate Tax Sale Law (Law).[2] For the following reasons, we vacate the trial court's order and remand the case for an evidentiary hearing.

Pascal owned tax-delinquent real estate in Scranton, Pennsylvania, which was subject to a tax upset sale but did not sell.[3] Subsequently, a judicial sale was held at which RRR Investments, LLC purchased

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the property. [4] Pascal filed objections, exceptions and a petition to set aside or void the judicial sale, alleging that the Lackawanna County Tax Claim Bureau (Bureau) violated the Law's notice provisions because it failed to provide adequate notice of the upset sale[5] and to properly post the property[6] prior to the upset sale. She further alleged that the Bureau failed to provide adequate notice of the judicial sale because notice was served at an outdated address.[7]

The trial court did not hold a hearing but instead directed the parties to file briefs in support of and in opposition to Pascal's petition. Relying on the Bureau's brief and its exhibits, the trial court found that the Bureau complied with the notice provisions and it sustained the judicial sale and dismissed Pascal's petition. This appeal followed.

On appeal,[8] Pascal contends that the trial court's decision lacks supporting evidence because the trial court did not hold a hearing to enter evidence into the record but relied upon the parties' briefs. RRR Investments, LLC counters that a hearing was unnecessary because the parties' briefs contained undisputed facts establishing that the Bureau's upset tax and judicial

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sale complied with the Law's notice provisions.

Regardless of what was alleged in the parties' briefs, an evidentiary hearing was needed to establish facts of record. Because a hearing was not held, the only facts the trial court relied upon were those contained in briefs and exhibits. Because briefs are not " facts" and are not of record, they cannot serve as a basis for the trial court's decision. Erie Indemnity Co. v. Coal Operators Casualty Co., 441 Pa. 261, 272 A.2d 465, 466-67 (Pa. 1971) (" Apparently, the court took into consideration facts alleged in the briefs, but briefs are not part of the record, and the court may not consider facts not established by the record." ) (footnotes omitted).

Accordingly, we vacate the trial court's order and remand the case for an evidentiary hearing.

ORDER

AND NOW, this 14th day of May, 2014, the order of the Court of Common Pleas of Lackawanna County dated July 23, 2013, is vacated and this case is remanded for an evidentiary hearing in accordance with the foregoing opinion.

Jurisdiction is relinquished.

DISSENT

DISSENTING OPINION

COLINS, SENIOR JUDGE

I must respectfully dissent. The Trial Court did not hold an evidentiary hearing, because there were no contested facts. As indicated by the Trial Court, accepting everything alleged by Pascal, Pascal must lose as a matter of law.

On appeal to this Court, Pascal argues that she was denied an opportunity to litigate the factual issues raised by her objections, but points to no specific issue of fact upon which she believes the Trial Court erred. However, in her brief to the Trial Court, although she acknowledged that certified mail notice of the upset sale was sent and notice of sale was posted on the property, Pascal contended that the Bureau did not provide proof of mailing by first class mail, and that the posting on the front porch railing of the Property was inadequate to advise her, or the general public, of the upset tax sale. With regard to the judicial sale, in her brief to the Trial Court, Pascal does not dispute that service was made by the sheriff upon Pascal's mother, Yolande Francois, at 104 Walnut Street, Beach Haven, Pennsylvania; however, Pascal asserts that the personal service to her mother provided by the sheriff was not valid notice as required by law.[1] Pascal acquired sole title to the Property by virtue of a May, 2012 divorce settlement. The Walnut Street address is the same address certified as her address on the May, 2012 deed to the Property (Exhibit A to the Bureau's brief in opposition.) The trial court ruled that, assuming Ms. Francois could not speak English, service upon an adult female relative at the residence was sufficient.

The Trial Court found not only that the Bureau complied with the notice provisions,[2] but also found specifically that Pascal

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had actual notice of the upset tax sale, as a result of her June, 2012 contact with the Bureau and agreement to make tax payments pursuant to a payment plan to stay the sale. That fact by itself bars Pascal's claim of insufficient notice of the upset tax sale, even if there was not full compliance with the notice requirements. Cruder v. Westmoreland County Tax Claim Bureau, 861 A.2d 411, 415 (Pa. Cmwlth. 2004). In Cruder, this Court held that an agreement to resolve an outstanding balance demonstrated implied actual notice of an impending tax sale, rendering strict compliance with the statutory notice requirements waived. 861 A.2d at 415. With regard to the judicial sale, the Trial Court found that the Bureau complied with the notice requirements, noting specifically that the petition and rule were personally served upon Pascal's mother at the address provided by Pascal.

The present appeal is dilatory, and I would affirm the trial court.


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