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Jenkins v. Fayette County Tax Claim Bureau

Commonwealth Court of Pennsylvania

January 3, 2018

Nancy G. Jenkins
v.
Fayette County Tax Claim Bureau
v.
Scott D. Bush, 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

         Scott D. Bush (Purchaser) appeals an order of the Court of Common Pleas of Fayette County (trial court) setting aside the September 19, 2016, upset tax sale of property owned by Nancy Jenkins (Taxpayer). Purchaser asserts that the trial court erred because the Fayette County Tax Claim Bureau followed the tax sale procedures mandated by the Real Estate Tax Sale Law (Tax Sale Law).[1] Discerning no merit to this contention, we affirm the trial court.

         Taxpayer owns a residential property located at 64 Vances Mill Road in Uniontown, Pennsylvania (Property). When the 2014 real estate taxes on the Property were not paid, the Tax Claim Bureau listed the property for upset sale. At the tax sale on September 19, 2016, Purchaser bought the Property.

         On November 17, 2016, Taxpayer filed a petition to set aside the upset tax sale. Taxpayer contended that the Tax Claim Bureau did not comply with the tax sale notice provisions required by the Tax Sale Law. Purchaser petitioned to intervene, and it was granted. At the hearing on December 20, 2016, both the Tax Claim Bureau and Taxpayer presented evidence.

         Marjory Stefanini, First Assistant of the Tax Claim Bureau, testified. She explained that the Property was listed for a tax sale because the 2014 real estate taxes were two years in arrears. The Tax Claim Bureau's records showed that the Property's tax delinquency totalled $1, 446.32. Reproduced Record at 73a (R.R.). The Tax Claim Bureau notified Taxpayer of the tax sale by the following means: (1) a published notice in the newspaper; (2) a certified mailed notice sent on April 22, 2016, and on April 29, 2016, both of which were returned as unclaimed; and (3) a notice posted on the Property on July 5, 2016. Then, ten days before the sale, the Tax Claim Bureau sent a notice to Taxpayer by first-class mail to the Property's address stating that if the "taxes weren't paid on or in full on the 16th, or made in a legal agreement, then [the Property] would go into tax sale on the 19th." Notes of Testimony (N.T.), 8/11/2016, at 10; R.R. 28a. Finally, Stefanini testified that nothing in the file suggested that Taxpayer had an agreement with the Tax Claim Bureau to make installment payments on the delinquent taxes. On cross- examination, Stefanini acknowledged that had Taxpayer brought sufficient cash to the office, she would have been eligible for an installment agreement.

         Taxpayer is a 79-year-old widow. She testified that she purchased the property in 2014 for $115, 000. She does not live at the Property; rather, she rents it. Taxpayer testified that in 2015 she made a payment of $17, 000 to the Tax Claim Bureau for taxes owed on the Property and on three other properties she owns. This did not discharge her outstanding tax obligation, so Taxpayer agreed to make monthly payments of $400, to be applied to the taxes owed on the Property as well as on the other three properties. Taxpayer conceded that this installment agreement had not been reduced to writing. When Taxpayer saw the notice posted on the Property, she did not construe it to mean that the installment agreement was no longer in effect; rather, she believed she could continue making payments on the taxes for the Property.

         On September 16, 2016, Taxpayer went to the Tax Claim Bureau to make payment on the taxes owed on the Property and on another property. Her proffered cash payment for taxes owed on the Property was refused. She was informed that she could not proffer payment because the Property was "already in the tax sale." N.T. 26; R.R. 44a. Further, although Taxpayer did not have enough money to pay off the balance of the past due taxes, she did have enough to enter into a written installment agreement to remove the Property from tax sale.

         On December 21, 2016, the trial court set aside the tax sale of the Property. Purchaser requested reconsideration, but it was denied. Purchaser then appealed to this Court.

         On appeal, [2] Purchaser raises one issue. He contends that the trial court erred because the Tax Claim Bureau fully complied with the requirements of the Tax Sale Law. Taxpayer responds that Purchaser has waived all issues on appeal because he did not comply with Pennsylvania Rule of Appellate Procedure 1925(b) by filing a timely concise statement of errors complained of on appeal. The trial court's Rule 1925(a) opinion concluded that Purchaser's late filing of the Rule 1925(b) statement caused all his issues to be waived. Even so, the trial court explained that its decision to vacate the tax sale fully complied with the Tax Sale Law. In the alternative, Taxpayer argues that the Tax Claim Bureau did not comply with the Tax Sale Law because it refused to accept her payments proffered before the day of the scheduled upset tax sale.

         We begin with Taxpayer's issue of waiver. In its Rule 1925(a)[3]opinion, the trial court found that Purchaser waived all issues because Purchaser did not file a timely Rule 1925(b) statement of errors complained of on appeal. Pennsylvania Rule of Appellate Procedure 1925(b)(2) states, in pertinent part, as follows:

(b) Direction to file statement of errors complained of on appeal; instructions to the appellant and the trial court.--If the judge entering the order giving rise to the notice of appeal ("judge") desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal ("Statement").
***
(2) Time for filing and service.--The judge shall allow the appellant at least 21 days from the date of the order's entry on the docket for the filing and service of the Statement. Upon application of the appellant and for good cause shown, the judge may enlarge the time period initially specified or permit an amended or supplemental Statement to be filed. Good cause includes, but is not limited to, delay in the production of a transcript necessary to develop the Statement so long as the delay is not attributable to a lack of diligence in ordering or paying for such transcript by the party or counsel on appeal. In extraordinary circumstances, the judge may allow for the filing of a Statement or amended or supplemental Statement nunc pro tunc.

Pa. R.A.P. 1925(b)(2) (emphasis added). We have held that when a trial court orders the appellant to file a Rule 1925(b) statement, "the appellant must comply in a timely manner." In re Clinton County Tax Claims Bureau Consolidated Return for Sale of September 24, 2012, 109 A.3d 331, 334 (Pa. Cmwlth. 2015). Failure to comply with the trial ...


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