D.N. Harris v. County of Lycoming TCB & Best Homes Design & Remodeling, LLC ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David N. Harris, :
Appellant :
:
v. :
:
County of Lycoming Tax Claim Bureau :
and Best Homes Design & : No. 1029 C.D. 2019
Remodeling, LLC : Argued: December 8, 2020
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 7, 2021
David N. Harris (Harris) appeals from the Lycoming County Common
Pleas Court’s (trial court) June 24, 2019 order denying his Petition to Set Aside
Upset Tax Sale (Petition). The issue before this Court is whether the trial court erred
by concluding that Harris had actual knowledge of the September 12, 2018 upset tax
sale (Tax Sale). After review, we reverse.
Harris resides at and is the record owner of the property located at 1615
Walnut Street, Williamsport, Lycoming County (County), Pennsylvania (Property).1
Harris failed to pay the real estate taxes owed for the Property for the 2013, 2014,
2015, 2016 and 2017 tax years.2 See Reproduced Record (R.R.) at 65a, 96a, 98a. In
September 2015, after the County Tax Claim Bureau (Bureau) listed the Property
1
Harris explained that he purchased the Property but, at some point, lost it in foreclosure,
and his father purchased it. Thereafter, he rented the Property from his father for four or five years.
In 2012 or 2013, after his father passed away, Harris inherited the Property. See Reproduced
Record (R.R.) at 97a-98a.
2
As of May 2019, Harris also owed 2018 real estate taxes. See R.R. at 65a.
for tax sale, Harris entered into a payment agreement with the Bureau. See R.R. at
65a-67a, 99a-100a. By December 17, 2015 letter, the Bureau notified Harris that he
was in default of the payment agreement, and afforded him two weeks to bring his
payments up to date. See R.R. at 68a-69a, 100a. Because Harris failed to respond
to the default letter, the Bureau terminated the payment agreement on January 11,
2016. See R.R. at 66a-69a, 100a-101a. The Bureau placed the Property on the
September 14, 2016 tax sale list and notified Harris. See R.R. at 69a, 91a, 101a.
However, on September 14, 2016, Harris filed for Chapter 13
bankruptcy in the United States Bankruptcy Court for the Middle District of
Pennsylvania (Bankruptcy Court), which removed the Property from the September
14, 2016 tax sale. See R.R. at 46a-55a, 101a. Because Harris failed to comply with
the Bankruptcy Court’s September 14, 2016 order (to pay filing fees and provide his
Social Security number), his bankruptcy case was dismissed on September 26, 2016.
See R.R. at 47a, 101a. Harris did not notify the Bureau that his bankruptcy case was
dismissed. See R.R. at 70a. The Bureau discovered the dismissal in October 2017
during a routine bankruptcy status check, and placed the Property on the September
2018 Tax Sale list. See R.R. at 70a-71a.
On May 4, 2018, the Bureau issued a Notice of Public Sale (Notice)
informing Harris that the Property would be sold at the Tax Sale on September 12,
2018. See R.R. at 32a, 71a, 85a, 89a. The Notice specified that: Harris owed
$37,867.17 in delinquent real estate taxes; payment would remove the Property from
the Tax Sale; the Bureau would begin posting the Property on June 1, 2018; and, if
the delinquent taxes were not paid by July 31, 2018, the Tax Sale would be published
in the Williamsport Sun-Gazette and the Lycoming Reporter. See R.R. at 32a, 71a-
72a. The Bureau sent the Notice by regular and certified mail (Certified Mail No.
9269 3969 0037 9880 9492 28) to Harris at the Property, and Harris signed for the
2
certified mailing on May 11, 2018. See R.R. at 33a, 72a-74a, 85a, 89a, 93a, 95a-
96a.
On June 6, 2018, the Bureau, through a third-party vendor, posted a
June 1, 2018 Notice of Public Tax Sale on the Property’s front door. See R.R. at
10a, 12a-13a, 34a-35a, 74a-76a, 87a-88a, 117a. The third-party vendor did not
personally serve Harris. See R.R. at 83a. On August 10, 2018, the Bureau advertised
the Property’s Tax Sale in the Lycoming Reporter. See R.R. at 14a, 79a. On August
13, 2018, the Bureau advertised the Property’s Tax Sale in the Williamsport Sun-
Gazette. See R.R. at 14a, 78a. Harris did not attempt to pay his delinquent taxes to
remove the Property from the Tax Sale list. See R.R. at 76a.
On September 12, 2018, the Property was exposed at the Tax Sale, and
Bests Homes Design & Remodeling, LLC (Bests) purchased it for $37,867.17. See
R.R. at 14a. On September 13, 2018, the Bureau mailed Harris a Notice of Sale to
Property Owner, which Harris received. See R.R. at 15a, 123a. The Notice of Sale
to Property Owner instructed Harris that he “may file objections or exceptions to the
[Tax S]ale immediately[,] but no later than thirty (30) days following the
confirmation nisi of the return by the [trial] court.” R.R. at 15a. On September 20,
2018, Harris’s wife contacted the Bureau and inquired about the sale.3 See R.R. at
90a.
On October 5, 2018, the Bureau filed a Consolidated Return with the
trial court at Docket No. 18-0630 listing the properties sold on September 12, 2018,
including the Property, in accordance with Section 601(a)(3) of the Real Estate Tax
Sale Law (RETSL),4 72 P.S. § 5860.601(a)(3), and declaring that notice thereof was
given pursuant to Section 602 of the RETSL, 72 P.S. § 5860.602.5 See R.R. at 36a-
3
Harris’s wife is not a record owner of the Property. See R.R. at 90a.
4
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.601(a)(3) (personal service
required 10 days before sale of owner-occupied property).
5
72 P.S. § 5860.602 (notice by publication and certified mail required 30 days before sale).
3
40a, 77a. On October 11, 2018, the trial court issued the Decree Nisi at Docket No.
18-0630 confirming the sales and declaring that they will become absolute if no
objections are filed within 30 days.6 See R.R. at 41a, 77a-78a. Harris received the
Decree Nisi but did not file objections thereto within 30 days. See R.R. at 131a.
Rather, on October 12, 2018, Harris filed a Petition to Redeem the Property
(Redemption Petition) at Docket No. 18-1481.7 See R.R. at 80a-82a, 94a. Harris
eventually withdrew the Redemption Petition.8 See R.R. at 82a.
On December 20, 2018, Harris filed the Petition at Docket No. 18-1916,
therein alleging that the Bureau failed to present evidence establishing its
compliance with Sections 601(a)(3) and 602 of the RETSL and Section 308(a)(3) of
the RETSL,9 72 P.S. § 5860.308(a)(3), and that he “is able to pay the taxes.” R.R.
at 7a; see also R.R. at 3a-16a. The trial court scheduled a hearing on the Petition for
May 28, 2019.
In the meantime, by March 15, 2019 letter, the Bureau notified Harris
and Bests:
The [Bureau] has recently reviewed this matter in
preparation for the upcoming hearing on the pending
Petition.
As you may know, the [RETSL] allows for the [Bureau]
to petition the [trial court] to waive the requirement of
personal notice for good cause shown when personal
6
According to the Decree Nisi, if no objections were filed, the Prothonotary would enter,
as of course, a decree of absolute confirmation, the deeds would be issued to the purchasers and
acknowledged, and the sale proceeds would be distributed. See R.R. at 41a.
7
Harris received the trial court’s Decree Nisi and took it to a lawyer to object to the Tax
Sale. See R.R. at 119a-120a. However, the lawyer filed the Redemption Petition. See R.R. at
120a. Although the Bureau was not a party to the Redemption Petition, Harris served it on the
Bureau. See R.R. at 80a-82a, 95a.
8
Because Harris’s initial counsel refused to timely respond to Harris’s inquiries, Harris
contacted his current counsel, who filed the Petition. See R.R. at 120a.
9
72 P.S. § 5860.308(a)(3) (notice that the property will be advertised and exposed for sale
if delinquent taxes are not paid within the one-year discharge period).
4
notice cannot be served on owner occupied properties.
This action was not taken by the [Bureau] for the [Tax
S]ale conducted in September 2018. As a result, it is the
Bureau’s position that personal service was not performed
in accordance with the [RETSL] in this matter.
As a result[,] the [Bureau] intends to refund the monies
paid by the purchasers of the [P]roperty at the [Tax S]ale.
We would like to accomplish this prior to the upcoming
hearing so that the parties are not further inconvenienced
or incur additional expenses. . . .
R.R. at 60a. Despite the Bureau’s acknowledgement that its notice was defective,
Bests elected to proceed with the litigation. See Harris Br. at 4-5. Accordingly, on
April 23, 2019, Bests filed its response in opposition to the Petition and its
supporting brief, therein declaring that Harris had actual notice of the Tax Sale that
waived any notice deficiencies, and Harris did not properly contest the Tax Sale.
See R.R. at 17a-30a, 61a. On May 28, 2019, the trial court conducted a hearing. See
R.R. at 62a-140a. On June 24, 2019, the trial court denied the Petition. Harris
appealed to this Court.10
On July 31, 2019, the trial court ordered Harris to file a concise
statement of errors complained of on appeal within 21 days (i.e., by August 26,
2019), in accordance with Pennsylvania Rule of Appellate Procedure (Rule) 1925(b)
(Rule 1925(b) Statement), and informed Harris that his failure to do so “SHALL
result in a waiver.”11 R.R. at 166a. On August 29, 2019, because Harris had not
filed a Rule 1925(b) Statement, the trial court issued an opinion in support of its July
10
“‘This [C]ourt’s review of a trial court’s order in a tax sale matter is limited to
determining whether the trial court erred as a matter of law, rendered a decision that is unsupported
by the evidence, or abused its discretion.’ City of Phila. v. Auguste, 138 A.3d 697, 700 (Pa.
Cmwlth. 2016).” City of Phila. v. Rivera, 171 A.3d 1, 4 n.7 (Pa. Cmwlth. 2017). “Statutory
interpretation is a question of law over which our standard of review is de novo, and our scope of
review [is] plenary.” Thomas Jefferson Univ. Hosps., Inc. v. Pa. Dep’t of Labor & Indus., 162
A.3d 384, 389 (Pa. 2017).
11
The trial court’s July 31, 2019 order was entered onto the docket on August 5, 2019.
5
31, 2019 order in compliance with Rule 1925(a), therein declaring that Harris had
waived all issues on appeal. See R.R. at 167a.
On October 7, 2019, this Court ordered the parties to address Harris’s
waiver in their principal briefs on the merits or other appropriate motion. On
October 29, 2019, Bests filed a Motion to Dismiss/Quash the Appeal (Motion to
Dismiss) because, due to Harris’s waiver, there were no issues before the Court. On
November 6, 2019, Harris filed an answer to Bests’ Motion to Dismiss, claiming
that since the trial court did not send its July 31, 2019 order to Harris’s counsel, he
could not have timely responded to it. On November 12, 2019, this Court denied the
Motion to Dismiss without prejudice, vacated its October 7, 2019 Order and the
briefing schedule, and remanded the matter to the trial court to determine whether
Harris’s counsel received the July 31, 2019 order, and whether Harris was entitled
to file his Rule 1925(b) Statement nunc pro tunc.
The trial court conducted an evidentiary hearing on March 3, 2020, and,
on March 4, 2020, concluded that its July 31, 2019 order was not served on Harris’s
counsel and, thus, Harris was entitled to file his Rule 1925(b) Statement nunc pro
tunc. See R.R. at 168a-169a. On March 9, 2020, Harris filed his Rule 1925(b)
Statement. See R.R. at 161a-165a. On March 11, 2020, the trial court filed its
supplemental opinion pursuant to Rule 1925(a). Harris’s issue is now properly
before this Court for review.
Harris argues that the trial court committed an error of law or abused
its discretion by concluding that Harris had actual knowledge of the Tax Sale.
Specifically, Harris claims that the Bureau failed to meet its burden of proving that
it strictly complied with the RETSL’s notice requirements.
“[T]he collection of taxes may not be implemented without due process
of law.” Husak v. Fayette Cnty. Tax Claim Bureau, 61 A.3d 302, 312 (Pa. Cmwlth.
2013). This Court has explained:
6
A property owner’s right to notice ‘prior to commencing
with an upset tax sale [is] established pursuant to the Due
Process Clause of the Fourteenth Amendment to the
United States Constitution[, U.S. Const. amend. XIV, § 1,]
and by the Law.’ Rice v. Compro Distrib[.], Inc., 901 A.2d
570, 574 (Pa. Cmwlth. 2006). The United States Supreme
Court has held that due process is implicated in any taking
of property 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 . . . (2006). Due process
is satisfied when the Bureau, before commencing with a
tax sale, ‘provide[s] “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. (quoting Mullane v. Cent[.]
Hanover Bank & T[r.] Co., 339 U.S. 306 . . . (1950)).
In re Consol. Reports & Return by Tax Claims Bureau of Northumberland Cnty. of
Props., 132 A.3d 637, 644 (Pa. Cmwlth. 2016).
The notice requirements applicable to the instant matter are set forth
in Sections 601 and 602 of the RETSL. Section 601(a)(3) of the RETSL, entitled
Date of Sale, provides:
No owner-occupied property may be sold unless the
[B]ureau has given the owner occupant written notice of
such sale at least ten (10) days prior to the date of actual
sale by personal service by the sheriff or his deputy or
person deputized by the sheriff for this purpose unless the
county commissioners, by resolution, appoint a person or
persons to make all personal services required by this
clause. The sheriff or his deputy shall make a return of
service to the [B]ureau, or the persons appointed by the
county commissioners in lieu of the sheriff or his deputy
shall file with the [B]ureau written proof of service, setting
forth the name of the person served, the date and time and
7
place of service, and attach a copy of the notice which was
served. If such personal notice cannot be served within
twenty-five (25) days of the request by the [B]ureau to
make such personal service, the [B]ureau may petition the
[trial court] to waive the requirement of personal notice for
good cause shown. Personal service of notice on one of
the owners shall be deemed personal service on all owners.
72 P.S. § 5860.601(a)(3). Section 602 of the RETSL, entitled Notice of Sale, further
specifies, in relevant part:
(a) At least thirty (30) days prior to any scheduled sale[,]
the [B]ureau shall give notice thereof, not less than once
in two (2) newspapers of general circulation in the county,
if so many are published therein, and once in the legal
journal, if any, designated by the court for the publication
of legal notices. Such notice shall set forth (1) the
purposes of such sale, (2) the time of such sale, (3) the
place of such sale, (4) the terms of the sale including the
approximate upset price, (5) the descriptions of the
properties to be sold as stated in the claims entered and the
name of the owner.
....
(e) In addition to such publications, similar notice of the
sale shall also be given by the [B]ureau as follows:
(1) 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 RETSL].
(2) If return receipt is not received from each
owner pursuant to the provisions of clause (1),
then, at least ten (10) days before the date of the
sale, similar notice of the sale shall be given to
each owner who failed to acknowledge the first
notice by United States first class mail, proof of
mailing, at his last known post office address by
virtue of the knowledge and information possessed
by the [B]ureau, by the tax collector for the taxing
district making the return and by the county office
responsible for assessments and revisions of taxes.
It shall be the duty of the [B]ureau to determine the
8
last post office address known to said collector and
county assessment office.
(3) Each property scheduled for sale shall be
posted at least ten (10) days prior to the sale.
(f) The published notice, the mail notice and the posted
notice shall each state that the sale of any property may, at
the option of the [B]ureau, be stayed if the owner thereof
or any lien creditor of the owner on or before the actual
sale enters into an agreement with the [B]ureau to pay the
taxes in installments, in the manner provided by this
[RETSL].
(g) All notices required by this section other than the
newspaper notice and notice in the legal journal shall
contain the following provision which shall be
conspicuously placed upon said notices and set in at least
10-point type in a box as follows:
WARNING
‘YOUR PROPERTY IS ABOUT TO BE SOLD
WITHOUT YOUR CONSENT FOR
DELINQUENT TAXES. YOUR PROPERTY
MAY BE SOLD FOR A SMALL FRACTION OF
ITS FAIR MARKET VALUE. IF YOU HAVE
ANY QUESTIONS AS TO WHAT YOU MUST
DO IN ORDER TO SAVE YOUR PROPERTY,
PLEASE CALL YOUR ATTORNEY, THE TAX
CLAIM BUREAU AT THE FOLLOWING
TELEPHONE NUMBER ____________, OR
THE COUNTY LAWYER REFERRAL
SERVICE.’
....
72 P.S. § 5860.602.
This Court has summarized:
Section 602 of the [RETSL] governs the form and content
of notice and requires that notice of a tax sale include the
purpose, time, and place of the sale, as well as the
approximate upset price, a description of the property, and
the name of the owner. Additionally, [S]ection 601(a)(3)
9
of the [RETSL] provides that the notice described in
[S]ection 602 [of the RETSL] must be personally served
on an owner-occupier of real property at least ten days
prior to the date of actual sale . . . .
Montgomery Cnty. Tax Claim Bureau v. Queenan, 108 A.3d 947, 950-51 (Pa.
Cmwlth. 2015) (emphasis in original; footnote omitted). Accordingly,
‘the Bureau has the burden of proving compliance with the
statutory notice provisions of the [RETSL].’ In re Tax
Sale of Real Prop[.] Situated in Jefferson T[wp.], 828 A.2d
475, 478 (Pa. Cmwlth. 2003)[,] aff’d, . . . 859 A.2d 471([Pa.] 2004). [Although a] presumption of regularity
attaches to tax sales[,] . . . a property owner can overcome
this presumption by challenging the sale based on the
agency’s non-compliance with statutory tax sale
requirements. In re 1999 Upset Sale of Real Estate, 811
A.2d 85, 88 (Pa. Cmwlth. 2002).
Dwyer v. Luzerne Cnty. Tax Claim Bureau, 110 A.3d 223, 225-26 (Pa. Cmwlth.
2015). Finally, “[t]he [RETSL’s] notice provisions are to be strictly construed, and
a tax claim bureau’s failure to comply with all of the notice requirements ordinarily
nullifies a tax sale.” Montgomery Cnty. Tax Claim Bureau, 108 A.3d at 950.
At the May 28, 2019 hearing, Bureau Director Thomas D. Heap (Heap)
acknowledged that, although it appears that Harris received the Notice by certified
mail on May 11, 2018, and it was posted on the Property on June 1, 2018, the Bureau
did not personally serve the Notice on Harris before the September 12, 2018 Tax
Sale. See R.R. at 83a-84a.
Harris testified that he did not recall receiving the Notice, and could not
say whether the signature on the May 11, 2018 certified mailing receipt for the
Notice was his.12 See R.R. at 107a, 126a-128a. Harris explained that the “D” in his
purported signature was close to his, but it did not include his middle initial “N,”
12
Bests’ counsel asked the trial court to review and compare Harris’s signatures on the
certified mailing receipt and the bankruptcy forms. See R.R. at 33a, 54a, 129a.
10
which he claimed he always used when signing a document. See R.R. at 127a-128a,
130a. He also declared that he does not receive or read the Williamsport Sun-Gazette
or the Lycoming Reporter, and he was not informed by his wife or anyone else about
the Tax Sale.13 See R.R. at 111a.
Further, he did not recall seeing the Notice posted on his front door,
explaining that his wife was staying with her ailing mother, he does not use the front
door, and someone else mows his lawn.14 See R.R. at 107a-109a, 116a-117a, 124a-
126a. Harris described that his home has five or six entrances, he enters and exits
through the mudroom between the garage and the kitchen, and he would not have
seen a notice where the Bureau claimed to have posted it.15 See R.R. at 125a-126a.
Harris admitted that he did not pay real estate taxes owed for the
Property from 2013 through 2017, defaulted on his 2015 payment plan, filed for
bankruptcy to stay the 2016 tax sale, and then defaulted on the bankruptcy without
notifying the Bureau that the bankruptcy action had been dismissed. See R.R. at
98a-99a, 107a-115a. He was also aware that he “owed a bunch” of taxes on the
Property, had the money, and intended to pay them in the fall of 2018, but was
waiting for his counsel to notify him of the best course of action. R.R. at 118a; see
also 98a-99a. Notwithstanding, the Bureau did not personally serve Notice on him
ten days before the 2018 Tax Sale. See R.R. at 117a, 124a.
Relying on Cruder v. Westmoreland County Tax Claim Bureau, 861
A.2d 411 (Pa. Cmwlth. 2004), Bests argued to the trial court that Harris’s actual
13
Harris explained that his wife would not be looking for Tax Sale information because he
did not tell her that he defaulted on the real estate taxes. See R.R. at 111a.
14
Harris claimed the Notice was not on the door when he painted the front porch in early
2019, and he does not know who would have removed it. See R.R. at 109a-110a.
15
Notably, Harris did not recall admitting in response to the Bureau’s request for
admissions that the Property was posted on June 1, 2018. See R.R. 115a-116a.
11
knowledge of the Tax Sale waived any defect in the Bureau’s notice. The trial court
agreed, stating:
This [trial c]ourt concurs with [Bests’] reliance on Cruder
. . . and finds said precedent to be analogous to [this]
matter. The circumstances at bar demonstrate that []
Harris had actual knowledge of the September 12, 2018
Tax Sale, which effectively waives any notice defect . . .
[under] the [RETSL]. Accordingly, [] Harris’[s] [Petition]
is hereby DENIED.
Trial Ct. Order, R.R. at 155a. Bests makes the same argument on appeal to this
Court.
In Cruder, the property owner was aware of his tax delinquency and
sought to resolve the arrearages by agreement that made clear the property would be
exposed to tax sale in the event he failed to make payments as agreed. After the
property owner defaulted on the agreement, the tax claim bureau mailed him notice
of the property’s sale by certified mail, and the property owner’s controller signed
for it. The tax claim bureau also advertised and posted notice on the property. Four
days after the controller signed for the certified mailing, the property owner sent the
tax claim bureau a check to cover a portion of the delinquent taxes. The property
was sold at tax sale and the property owner objected based on defective notice under
Section 602 of the RETSL. The trial court concluded that the posting was proper,
but the certified mailing was defective. The trial court nevertheless held that the
defect was waived, since circumstantial evidence established that the property owner
had actual knowledge of the impending tax sale. This Court affirmed the trial court’s
order.
12
The Bureau’s only response to Bests’ argument16 is that McKelvey v.
Westmoreland County Tax Claim Bureau, 983 A.2d 1271 (Pa. Cmwlth. 2009), and
Montgomery County Tax Claim Bureau v. Queenan, 108 A.3d 947 (Pa. Cmwlth.
2015), were decided after Cruder and, in both cases, this Court concluded that the
tax claim bureau’s failure to personally serve notice of a tax sale on an owner-
occupant in accordance with Section 601(a)(3) of the RETSL was fatal.
Notwithstanding, the Bureau expressed that it “takes no position on whether those
cases can be distinguished from the instant case[.]” Bureau Br. at 2.
This Court observes that, in Cruder, unlike the instant matter, there was
evidence before the trial court that Cruder attempted to pay his tax delinquency just
days after the certified mailing was delivered and before the property was exposed
for sale. Thus, Cruder is distinguishable. Moreover, in the years since Cruder was
decided, in McKelvey and Montgomery County Tax Claim Bureau, this Court ruled
that, even when the other RETSL notice requirements have been met, where a tax
claim bureau fails to personally serve notice of the tax sale, or seek a waiver thereof
from the trial court pursuant to Section 601(a)(3) of the RETSL, the tax sale is
invalid. The personal service requirement in Section 601(a)(3) of the RETSL was
not at issue in Cruder. Under the circumstances, Cruder is inapposite.
Bests acknowledges that McKelvey and Montgomery County Tax Claim
Bureau are applicable to owner-occupied residences, but retorts that this Court did
not overrule Cruder therein, and asserts that “this Court has not considered whether
the RETSL requires strict compliance [for] a continued sale, or as in this case[,] two
continued sales, of which the proper[t]y owner had been properly noticed, but where
the owner had strategically and intentionally acted to stay the previous sale.” Bests
16
The Bureau stated that it filed its “short submission to call to the Court’s attention two
cases that appear to be controlling law in this matter but were not identified by [Harris’s] counsel.”
Bureau Br. at 1.
13
Br. at 21. While that may be true, the instant matter is not the test case for this Court
to decide that issue.
The “RETSL is for the collection of taxes and is not intended to create
investment opportunities for others, or to strip taxpayers of their properties.”
Brodhead Creek Assocs., LLC v. Cnty. of Monroe, 231 A.3d 69, 74 (Pa. Cmwlth.
2020). In addition, it is well settled that
[t]he notice provisions of the [RETSL] are designed to
‘guard against deprivation of property without due
process.’ Donofrio v. Northampton C[nty.] Tax Claim
Bureau, 811 A.2d 1120, 1122 (Pa. Cmwlth. 2002).
Because the government actor attempting to take property
bears the constitutional duty to provide notice prior to a
tax sale, our inquiry into whether adequate notice was
provided must focus ‘not on the alleged neglect of the
owner, which is often present in some degree, but on
whether the activities of the [tax claim b]ureau comply
with the requirements of the [RETSL].’ Smith v. Tax
Claim Bureau of Pike C[nty.], 834 A.2d 1247, 1251 (Pa.
Cmwlth. 2003).
In re Consol., 132 A.3d at 644; see also Brodhead Creek Assocs., LLC.
Further, Section 601(a)(3) of the RETSL, which is applicable here,
expressly declares: “No owner-occupied property may be sold unless the [B]ureau
has given the owner[-]occupant written notice of such sale at least ten (10) days prior
to the date of actual sale[.]” 72 P.S. § 5860.601(a)(3) (emphasis added). Finally,
the McKelvey Court explained:
The distinction between [S]ection 601 [of the RETSL],
requiring personal service of notice to owner[-]occupiers,
and [S]ection 602 [of the RETSL], requiring notice by
certified mail to all property owners, indicates that the
legislature recognized a distinction between an owner who
stands to lose his property and one who stands to lose his
home as well. By enacting [S]ection 601 [of the RETSL],
the legislature expressed a desire to provide a qualitatively
different type of notice to an owner[-]occupant and afford
such owner increased protection by way of additional
14
notice. We conclude that the plain language of [S]ection
601(a)(3) [of the RETSL] and the inclusion of that notice
provision in [S]ection 601 [of the RETSL] (date of sale),
rather than with the other notice requirements set forth in
[S]ection 602 [of the RETSL] (notice of sale), constitutes
evidence of the General Assembly’s intent to create a
substantive prohibition to proceeding with a tax sale of
property belonging to an owner[-]occupier.
McKelvey, 983 A.2d at 1274; see also Montgomery Cnty. Tax Claim Bureau.
Based on the foregoing, Section 601(a)(3) of the RETSL requires this
Court to focus on the Bureau’s actions (rather than Harris’s) relative to the
impending Tax Sale of the Property (rather than the previously-scheduled sales).
Because the record evidence is clear that the Bureau did not personally serve Notice
of the September 12, 2018 Tax Sale on Harris as mandated by Section 601(a)(3) of
the RETSL,17 the Tax Sale was invalid and the trial court erred by concluding
otherwise. Accordingly, we reverse the trial court’s order.
___________________________
ANNE E. COVEY, Judge
17
Notwithstanding, this Court does not countenance Harris’s continued refusal to pay the
delinquent taxes, or his repeated, documented efforts to thwart the Bureau’s efforts to collect them.
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
David N. Harris, :
Appellant :
:
v. :
:
County of Lycoming Tax Claim Bureau :
and Best Homes Design & : No. 1029 C.D. 2019
Remodeling, LLC :
ORDER
AND NOW, this 7th day of January, 2021, the Lycoming County
Common Pleas Court’s June 24, 2019 order is reversed.
___________________________
ANNE E. COVEY, Judge