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 ...