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Clemmer v. Fayette County Tax Claim Bureau

Commonwealth Court of Pennsylvania

December 14, 2017

William Lee Clemmer
v.
Fayette County Tax Claim Bureau
v.
Jason Brooks, Appellant

          Submitted: November 13, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          MARY HANNAH LEAVITT, President Judge

         Jason Brooks (Purchaser) appeals an order of the Court of Common Pleas of Fayette County (trial court) granting the petition of William Clemmer (Taxpayer) to set aside a tax sale of property. In doing so, the trial court held that the Fayette County Tax Claim Bureau (Tax Claim Bureau) failed to comply with the statutory notice requirements of the Real Estate Tax Sale Law (Tax Sale Law).[1]Purchaser asserts that the trial court erred in this regard and that, in any case, Taxpayer had actual notice of the upset tax sale. Discerning no merit to these contentions, we affirm the trial court.

         On June 18, 2004, Taxpayer and his father, Barry Clemmer, Sr., purchased a property located at 4527 Morgantown Road, Fayette County (Property) for $23, 000, as joint tenants with a right of survivorship. Certified Record (C.R.), Exceptions to Upset Tax Sale, Exhibit A. Taxpayer became the sole owner of the Property when his father died on April 20, 2011. Taxpayer did not reside at the Property but, rather, nearby at 4543 Morgantown Road. On September 19, 2016, the Property was sold to Purchaser at an upset tax sale for $961.49. On November 21, 2016, Taxpayer filed a petition to set aside the upset tax sale. Purchaser intervened, and the trial court conducted a hearing.

         At the hearing, Marjorie Stephanini, First Assistant of the Tax Claim Bureau, testified about the Bureau's procedures in conducting the upset tax sale of the Property, for which taxes in the amount of $733.67 were past due. Stephanini explained that Taxpayer's address on file was 4543 Morgantown Road, and it was to that address that the Tax Claim Bureau sent a notice of the upset sale by certified mail. The certified mailing was returned to the Bureau unclaimed. Stephanini explained the Tax Claim Bureau's response to the return of a certified mailing as unclaimed:

[Counsel]: Once the Tax Claim Bureau receives a returned letter, what typically is the next step that they [sic] follow in trying to make sure that notice is given?
[Stephanini]: If it was - we go by the address that is on file with us.

         Notes of Testimony, 1/13/2017, at 18 (N.T.___); Reproduced Record at 38a (R.R.___). On August 29, 2016, the Tax Claim Bureau sent a 10-day notice of the upset tax sale by first-class mail to Taxpayer at 4543 Morgantown Road, the address on file.

         Taxpayer testified that he had been incarcerated in the Fayette County Prison since March 24, 2016. Accordingly, he did not receive either the May 17, 2016, certified mailing or the first-class mailing of August 29, 2016. The parties stipulated that Taxpayer was incarcerated as of March 24, 2016, and that Taxpayer remained incarcerated as of January 3, 2017, the date of the hearing.

         On February 6, 2017, the trial court set aside the upset sale of Taxpayer's Property. The trial court held that the Tax Claim Bureau did not comply with the statutory notice provisions of the Tax Sale Law because it did not make reasonable efforts to locate Taxpayer after the certified mailing was returned unclaimed. The trial court explained as follows:

It is undisputed that [Taxpayer] was incarcerated in the Fayette County Prison at the time the said notices were sent. Where a mailed notice has not been delivered because of an inaccurate address, the Tax Bureau must make a reasonable effort to ascertain the identity of the owner(s)…. In the instant case, it appears to this Court that a reasonable effort by the Fayette County Tax Claim Bureau, being situate in the Fayette County Courthouse, would have involved at least a telephone call to the Fayette County Clerk of Courts, located in the same courthouse, to inquire as to whether Petitioner had been arrested, and if so, what address he provided to the authorities at the time of his arrest and whether, having been arrested, he might be lodged in a jail cell.

Trial Court Opinion, 2/6/2017, at 2-3; R.R. 118a-19a. Purchaser appealed, but the Tax Claim Bureau did not appeal.

         We begin with a review of the relevant law. The Tax Sale Law requires a tax claim bureau to give notice to the delinquent taxpayer before his property can be sold in satisfaction of overdue taxes. In re Consolidated Reports and Return by Tax Claims Bureau of Northumberland County of Properties, 132 A.3d 637, 644 (Pa. Cmwlth. 2016). The United States Supreme Court has held that due process is implicated when property is taken for the collection of taxes, stating:

[p]eople must pay their taxes, and the government may hold citizens accountable for tax delinquency by taking their property. But before forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking.

Jones v. Flowers, 547 U.S. 220, 234 (2006). To satisfy due process, a tax claim bureau must provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Id. at 226 (internal quotation omitted). The notice provisions of the Tax Sale Law "assure that no one is deprived of property without due process of law." In re Tax Claim Bureau, 419 A.2d 206, 209 (Pa. Cmwlth. 1980). Accordingly, a tax claim bureau must strictly comply with each and every statutory notice ...


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