E. and J. Alexis v. R. Koldjeski and Lackawanna TCB ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric and Joan Alexis, :
Appellants :
:
v. :
:
Ronald Koldjeski and Lackawanna : No. 1729 C.D. 2015
County Tax Claim Bureau : Submitted: April 15, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: August 22, 2016
Eric and Joan Alexis (collectively, Alexises) appeal pro se from the
Lackawanna County Common Pleas Court’s (trial court) July 17, 2015 order denying
their Objections and Exceptions to Confirmation of Tax Sale (Petition) and sustaining
the April 20, 2015 judicial tax sale of the property located at 213 Main Street,
Blakely Borough, Lackawanna County (Property) to Frank Montaro (Montaro). The
following issues are before the Court: (1) whether the trial court erred by determining
that the Alexises have no legal right to the Property; (2) whether the trial court erred
by determining that the Lackawanna County Tax Claim Bureau (Bureau) complied
with all notice provisions; and (3) whether the Alexises were legally notified of the
judicial tax sale.1 After review, we affirm.
1
In their brief, the Alexises state their third issue as whether a judicial sale should have been
held if the Alexises were not notified, and their fourth issue as whether the Alexises should have
been notified according to law. Because both issues essentially ask the same question, we restated
the Alexises’ issues and combined them accordingly.
The Estate of Tillie Popewchak2 (Estate) holds the Property’s title.
Marsha Alexis Boland (Boland) is the Estate’s Administratrix. The Property’s real
estate taxes were not paid for tax years 2008 through 2014, resulting in a $14,450.46
delinquent tax balance. Following an unsuccessful upset tax sale, the Property was
selected for inclusion in the Bureau’s 2015 judicial tax sale. On January 20, 2015,
the Bureau filed a petition for judicial sale (Sale Petition) and rule to show cause
(Rule) with the trial court. The trial court issued a Rule scheduling a March 11, 2015
hearing. On February 5, 2015, the Lackawanna County Sheriff’s Office personally
served a copy of the Sale Petition and Rule on Boland. On February 20, 2015, notice
of the sale was published in The Times-Tribune. Boland did not appear at the March
11, 2015 hearing.
Joan Alexis, who resides at the Property with her disabled husband Eric
Alexis, appeared at the March 11, 2015 hearing and negotiated an installment plan of
$200.00 per month to pay the delinquent tax balance beginning on April 3, 2015 to
avert the Property’s judicial tax sale. The trial court advised Joan Alexis that her
failure to make the negotiated payment would result in the Property’s sale on April
20, 2015. Joan Alexis failed to remit the required payment and, on April 16, 2015,
the trial court ordered the Property’s sale. Montaro purchased the Property at the
Bureau’s April 20, 2015 judicial tax sale. On May 20, 2015, the Alexises filed their
Petition with the trial court. On July 8, 2015, the trial court held a hearing and on
July 17, 2015, the trial court denied the Petition. On August 24, 2015, the Alexises
2
Eric Alexis was Tillie Popewchak’s grandson.
2
appealed from the trial court’s order to the Pennsylvania Superior Court. 3 By
September 15, 2015 order, the Superior Court transferred the matter to this Court.4
The Alexises first argue that the trial court erred by determining that
they have no legal right to the Property because pursuant to a “family agreement”
they have “residency rights” to the Property. Supplemental Reproduced Record
(S.R.R.) at 32B. At the July 8, 2015 hearing, counsel for the Bureau and the Bureau’s
Deputy Director Ronald Koldjeski (Koldjeski) argued:
As an initial matter, the [Bureau] recognizes that [it has the]
burden to show compliance with the statutory notice
requirements. However, [the Alexises] are not, for the
record, owners of the [P]roperty. So I think standing is a
threshold issue. My research has not reflected any deed,
quitclaim deed or any such document evidencing title of the
property. In fact, it’s the opposite. So we’d ask for an offer
of proof at least for the standing element before we move
forward with our case.
S.R.R. at 3-4B. However,
[t]he Section 102 [of the Real Estate Tax Law (Law)5]
definition of ‘owner’ is relevant to whether the Bureau was
required to provide [the Alexises] with notice of a real
estate tax sale conducted pursuant to Section 602 of the
Law.[6] As demonstrated by Husak [v. Fayette County Tax
Claim Bureau, 61 A.3d 302 (Pa. Cmwlth. 2013)], whether
[the Alexises] had standing to challenge the tax sale is
based upon whether [they] had the requisite substantial,
direct and immediate interest in the sale of [the P]roperty to
qualify as [] aggrieved part[ies].
3
By August 14, 2015 order, the trial court granted Joan Alexises’ petition to proceed in
forma pauperis.
4
“Our standard of review in a tax[]sale case is limited to determining whether the trial court
abused its discretion, rendered a decision lacking supporting evidence, or clearly erred as a matter
of law.” In Re Lackawanna Cnty. Tax Claim Bureau, 91 A.3d 316, 317 n.8 (Pa. Cmwlth. 2014).
By April 11, 2016 order, this Court precluded Montaro and Boland from filing briefs for
failure to timely file them in accordance with this Court’s prior order.
5
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.102.
6
72 P.S. § 5860.602.
3
Moore v. Keller, 98 A.3d 1, 4 (Pa. Cmwlth. 2014). Here, at the time of the judicial
tax sale, the Alexises had been living at the Property for 21 years. See S.R.R. at 16B.
Joan Alexis testified at the July 8, 2015 hearing that, pursuant to an agreement with
the Department of Public Welfare (DPW), although the Property was devised to the
Alexises, because DPW had a lien against the Property, a deed could not be
recorded in their name;7 however, they could reside there as long as the deed
remained in decedent Tillie Popewchak’s name. S.R.R. at 23B. As explained in
the “Current Owner Search,” there was an
[a]greement between [Boland] and the [DPW], dated
[September 22, 2009], recorded [November 4, 2009],
allowing Eric Alexis . . . and his family to reside in the
[Property] until his death or until the estate desires to sell
the [Property], at which time the net proceeds shall be used
first to pay the [DPW c]laims.
S.R.R. at 49B.
Although [the Alexises] [are] not []‘owner[s]’ as defined by
the Law because [their] name[s] [are] not on the last
registered deed to the Property, [they are] equitable
owner[s] of the Property as [] devisee[s] of [Tillie
Popewchak]. Maier v. Henning, . . . 578 A.2d 1279, 1282
n. 5 ([Pa.] 1990) (holding that a devisee acquires legal title
to real property at the death of the testator, subject to the
powers of the personal representative under Section 301(b)
of the Probate, Estate and Fiduciaries Code, 20 Pa.C.S. §
301(b)). We conclude that [the Alexises], as [] equitable
owner[s], ha[ve] the requisite substantial, direct and
immediate interest in the sale of [the P]roperty to challenge
the tax sale.
Moore, 98 A.3d at 4. Having determined that the Alexises had a legal interest in the
Property which gave them standing to challenge the Property’s judicial tax sale, we
7
DPW had a $103,000.00 lien against the Property. See S.R.R. at 23B.
4
must now decide whether the Bureau was required to provide the Alexises with
notice of the sale.
Section 602(e)(1) of the Law provides: “At least thirty (30) days before
the date of the sale, by United States certified mail, restricted delivery, return receipt
requested, postage prepaid, to each owner as defined by [the Law].” 72 P.S. §
5860.602. Section 102 of the Law defines “Owner[]” as:
the person in whose name the property is last registered,
if registered according to law, or, if not registered according
to law, the person whose name last appears as an owner of
record on any deed or instrument of conveyance recorded in
the county office designated for recording and in all other
cases means any person in open, peaceable and notorious
possession of the property, as apparent owner or owners
thereof, or the reputed owner or owners thereof, in the
neighborhood of such property[.]
72 P.S. § 5860.102 (text emphasis added).
[I]f the owner to whom a notice of tax sale was sent is
deceased and letters testamentary were granted, as in
the case sub judice, no further evidence is needed to
trigger the reasonable efforts requirement on the part of
the tax bureau. Further, a tax claim bureau must make
reasonable, but not extraordinary, efforts to provide notice
under the Law. Those reasonable efforts must include a
search of dockets and indices of the county tax assessment
offices, recorder of deeds, prothonotary’s office, and
contacts to any apparent alternate address which may have
been written on or in the file pertinent to the property at
issue.
Stanford-Gale v. Tax Claim Bureau of Susquehanna Cnty., 816 A.2d 1214, 1217 (Pa.
Cmwlth. 2003) (citation omitted; emphasis added). Here, there is no dispute that “the
[Estate], a/k/a Tillie Pope[w]chak, deceased[]” is “the last deeded owner[] of record
for the [P]roperty[.]” S.R.R. at 7B. Nor is it contested that the Bureau sent notice to
Boland because “letters of administration . . . were granted to [Boland].” S.R.R. at
5
9B. Thus, it was “reasonable” for the Bureau to believe it had provided proper
“notice under the Law.” Stanford-Gale, 816 A.2d at 1217.
Because the record evidence is clear that the Alexises are not the owners
of the Property, the Bureau was not obligated to notify them of the sale. Moreover,
since the undisputed record evidence demonstrates that the “Estate of Tillie
Popewchak” is the Property’s owner, the Bureau was only required to notify the
Estate’s administratrix of the sale. S.R.R. at 48B. Stanford-Gale. Boland, as
administratrix of the Estate, received timely notice of the pending sale. Accordingly,
the trial court properly determined that the Bureau complied with all notice
provisions.8
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
8
Given our disposition of this issue, we need not address whether the Alexises were legally
notified.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric and Joan Alexis, :
Appellants :
:
v. :
:
Ronald Koldjeski and Lackawanna : No. 1729 C.D. 2015
County Tax Claim Bureau :
ORDER
AND NOW, this 22nd day of August, 2016, the Lackawanna County
Common Pleas Court’s July 17, 2015 order is affirmed.
___________________________
ANNE E. COVEY, Judge