Opinion
739 C.D. 2020 740 C.D. 2020
09-08-2021
In Re: Tax Claim Bureau of Berks County Upset Sale Held September 20, 2019 Appeal of: Gilbert M. Martinez
OPINION NOT REPORTED
SUBMITTED: March 19, 2021
MEMORANDUM OPINION
PER CURIAM
Gilbert Martinez (Taxpayer) appeals from the June 3, 2020 order of the Berks County (County) Court of Common Pleas (trial court), which granted the petition of the County Tax Claim Bureau (Bureau) seeking a sale of Taxpayer's real property located at 1706 Cotton Street, Reading, Pennsylvania (the Property), pursuant to the Real Estate Tax Sale Law (Law). Taxpayer also appeals from the trial court's June 18, 2020 order which denied his motion to vacate the June 3, 2020 order. After review, we affirm.
Act of July 7, 1947, P.L. 1368 No. 542, as amended, 72 P.S. §§ 5860.101-5860.803.
Taxpayer's appeals were consolidated by order of this Court dated November 10, 2020. Taxpayer raised precisely the same arguments in his motion to vacate the June 3, 2020 order in his appeal to this Court.
I. Background
On September 20, 2019, Taxpayer's Property was exposed to a public upset sale as a result of Taxpayer's failure to pay real estate taxes and multiple municipal claims, liens, and judgments assessed on the Property, dating at least as far back as 2015. Supplemental Reproduced Record (S.R.R.) at 10b. The upset sale failed to generate any bids sufficient to satisfy the upset price fixed for the Property. As a result, on January 23, 2020, the Bureau filed a petition to sell the Property, via a judicial sale, pursuant to Section 610 of the Law. Id. at 10b-11b. On January 28, 2020, the trial court issued a Rule to Show Cause (Rule) why the Property should not be sold. Id. at 12b. The sheriff posted the Rule on the Property on March 13, 2020, and twice attempted to personally serve Taxpayer the Rule on March 16, 2020. Id. at 65b.
Pursuant to Section 605 of the Law, the upset sale price is the sum of:
(a) the tax liens of the Commonwealth,
(b) the amount of the claim absolute and interest thereon on which the sale is being held,
(c) the amount of any other tax claim or tax judgment due on such property and interest on the judgment to the date of sale,
(d) the amount of all accrued taxes including taxes levied for the current year, whether or not returned, a record of which shall be furnished to the bureau by tax collectors, receivers of taxes and taxing districts,
(e) the amount of the municipal claims against the property, and
(f) the record costs and costs of sale, including pro rata costs of the publication of notice and costs of mail and posted notices in connection with the return of the claim and mail and posted notices of sale.72 P.S. § 5860.605. The Property had an upset price of $15, 700 and received no bids during the September 20, 2019 upset sale. Original Record (O.R.) Item 1, Ex. F.
72 P.S. § 5860.610. Unlike an upset sale where the upset price is the amount to satisfy all claims, a judicial sale has no minimum price, and the property is sold, "freed and cleared of [its] respective tax and municipal claims, liens, mortgages, charges and estates, except separately taxed ground rents." Id.
On May 4, 2020, Taxpayer filed a response to the Rule, seeking a permanent stay of the judicial sale and demanding a refund of property taxes on the basis of disability, poverty, and "the imposition of governmental action through intrinsic fraud, suppression of employment rights, suppression of [Social Security and] Welfare benefits[, ]" which Taxpayer argued rendered him exempt from the payment of property taxes. S.R.R. at 15b-16b. Id. at 16b. Taxpayer denied that the Property had been exposed to an upset tax sale, and he sought dismissal of the proceedings for lack of personal jurisdiction because he was not personally served. Id. at 15b-16b.
Taxpayer asserted that the Property was removed from the upset sale. S.R.R. at 16b. Contrary to this assertion, the record indicates that the Property was part of the September 20, 2019 upset sale. O.R. Item 1, Ex. F.
A May 20, 2020 hearing was set on the Rule before the trial court, at which Taxpayer was present. During the hearing, Taxpayer argued that the judicial sale should not occur because he was not personally served with the Rule. Id. at 34b. However, Taxpayer conceded that he had received the Rule listing the Property for judicial sale, and that he had in fact video-recorded an individual taping the Rule to the Property's front door. Id. at 35b. Taxpayer further acknowledged that his taxes were in arrears; however, he reiterated that he was exempt from paying property taxes due to an alleged disability. Id. at 25b-26b. However, the trial court declined to hear Taxpayer's arguments with respect to his alleged tax-exempt status, as he had raised the same arguments before a different judge in the same trial court in a prior complaint against the Bureau, which had been dismissed for failure to state a claim. Id. at 28b. Similarly, the trial court denied Taxpayer's request for an evidentiary hearing on the issue that "[Taxpayer had] been persecuted by the government and defrauded on [his] request for social security disability and welfare," had already been litigated and decided in Taxpayer's prior litigation on the same issues in federal court. Id. at 31b-32b. Taxpayer then moved for recusal of the presiding trial court judge, alleging that the judge violated his due process rights in an unrelated matter. Id. at 29b-30b. However, Taxpayer acknowledged that the trial judge's decision in that matter was "affirmed by the appellate courts." Id. at 30b. The trial judge denied Taxpayer's recusal motion. Id.
In his brief to this Court, he clarifies that the disability is rheumatoid arthritis.
In Martinez v. Tax Claims Bureau (Pa. Cmwlth., No. 1615 C.D. 2018, filed Aug. 13, 2019), reconsideration denied (Oct. 2, 2019) (per curiam), this Court affirmed the trial court's dismissal of Taxpayer's prior complaint.
Martinez v. Tax Claims Bureau, Civ. A. No. 19-CV-4087, 2019 WL 4447631 (E.D. Pa. Sept. 17, 2019), aff'd, 796 Fed.Appx. 154, 156 (3d Cir. 2020).
This matter concerned the supply of water service to Taxpayer's residence. The trial judge ruled against Taxpayer on this matter. Taxpayer then appealed to this Court. However, we did not reach the merits of Taxpayer's appeal, as it was untimely. Martinez v. Reading Area Water Auth. (Pa. Cmwlth., No. 2047 C.D. 2016, filed Aug. 30, 2017).
At the hearing, the trial court further ordered the parties to file supplemental briefs addressing the question as to whether personal service was required for the Rule. Id. at 55b. On June 3, 2020, after receiving the supplemental briefs, the trial court issued an Order granting the Bureau's petition for judicial sale of the Property. Id. at 68b. The trial court held that Taxpayer waived strict compliance with the personal service requirement of Section 611 of the Law because Taxpayer admitted that he saw the notice posted on the Property and that he had notice of the hearing, which Taxpayer actually attended after filing a response to the Rule. Id. The trial court also held that Taxpayer's claims of tax exemption were barred by res judicata, because they renewed the same claims from his prior litigation. Id. Accordingly, the trial court ordered that the Property be sold at judicial sale. The trial court stayed the judicial sale of the Property pending the outcome of the instant Appeal. Id. at 6b.
Section 611 of the Law, 72 P.S. § 5860.611, provides that service of the rule to show cause "shall be made in the same manner as writs of scire facias," which require personal service. In re Serfass, 651 A.2d 677, 680 (Pa. Cmwlth. 1994).
On June 12, 2020, Taxpayer filed a motion seeking to vacate the trial court's June 3, 2020 order. Id. at 81b. The trial court denied Taxpayer's motion on June 18, 2020. On July 28, 2020, Taxpayer filed notices of appeal from the trial court's June 3, 2020 and June 18, 2020 orders. Id. at 5b, 7b.
On December 28, 2020, this Court issued a per curiam order directing the parties to address the timeliness of Taxpayer's appeal in their briefs. Taxpayer filed an Application for Relief on January 19, 2021, asserting that he mailed his appeal to the trial court on June 24, 2020 and attached an United States Postal Service (USPS) Form 3817 Certificate of Mailing, which indicated that he mailed his appeal the same day. However, after this order was issued, we noted that Taxpayer filed his appeal while the trial court remained under a judicial emergency from the COVID-19 pandemic. See In Re: 23rd Judicial District Emergency Judicial Order (COVID-19 Order), No. 20-3264 (C.P. Berks Co. June 30, 2020) (extending the COVID-19 emergency measures). The COVID-19 Order suspended "[t]he time calculations for the purposes of time computation relevant to court cases, judicially mandated action[, ] or other judicial business, as well as time deadlines, subject to constitutional restrictions." COVID-19 Order, No. 20-3264 (C.P. Berks Co. Mar. 17, 2020). Although it is unclear whether the delay between mailing and filing resulted from delay with the USPS or the trial court's personnel, Taxpayer is entitled to the benefit of the suspension of time calculations and deadlines pursuant to the COVID-19 Order. Accordingly, we grant Taxpayer's Application for Relief as his appeal is timely.
II. Issues
Turning to the merits of Taxpayer's appeal, Taxpayer presents numerous issues in a disorganized and confusing manner that can be distilled into two key issues for sake of clarity and analysis. First, Taxpayer asserts that the trial court lacked personal jurisdiction over him because of improper service of the Rule why the Property should not be sold at judicial sale. Second, Taxpayer alleges that he was denied due process because of several abuses of discretion by the trial court.
"Our scope of review in tax sale cases is limited to determining whether the trial court abused its discretion, rendered a decision with a lack of supporting evidence, or clearly erred as a matter of law." In re Monroe Cnty. Tax Claim Bureau, 91 A.3d 265, 269 n.6 (Pa. Cmwlth. 2014). "The trial court is the finder of fact and has exclusive authority to weigh the evidence, make credibility determinations and draw reasonable inferences from the evidence presented." Id.
III. Discussion
A. Trial Court's Jurisdiction
Taxpayer argues that he was never properly served the Rule for the judicial sale, and therefore the trial court lacked personal jurisdiction over him. Taxpayer asserts that, pursuant to Section 611 of the Law, 72 P.S. § 5860.611 (relating to service), and the Pennsylvania Rules of Civil Procedure, only personal service by the sheriff is permissible. Taxpayer's Br. at 6. The Bureau argues that personal service was waived because Taxpayer had actual knowledge of the judicial sale and participated in the proceedings. Bureau's Br. at 17-20.
Contrary to Taxpayer's assertion, the Pennsylvania Rules of Civil Procedure allow for service by posting in real property actions. See Pa.R.C.P. No. 410(c)(2) (allowing service by posting if ordered by the court). Nevertheless, because the Law governs tax sale proceedings, "a trial court is not required to follow the Pennsylvania Rules of Civil Procedure." In re 2005 Sale of Real Est. by Clinton Cnty. Tax Claim Bureau Delinq. Taxes, 915 A.2d 719, 723 (Pa. Cmwlth. 2007). Accordingly, Section 611 relating to service of the Rule applies to this matter. 72 P.S. § 5860.611.
Taxpayer is correct that Section 611 of the Law requires that "[s]ervice of the rule shall be made in the same manner as writs of scire facias are served in this Commonwealth." 72 P.S. § 5860.611. Accordingly, the Law requires personal service by the sheriff. In re Serfass, 651 A.2d 677, 679 n.8 (Pa. Cmwlth. 1994) (describing service by writ of scire facias). However, personal service is not required where the property owner has actual knowledge of the judicial sale. Lancaster Cnty. Tax Claim Bureau v. Valenti, 601 A.2d 445, 449 (Pa. Cmwlth. 1991) (finding actual knowledge where property owner fled from deputies attempting to serve him and testified to knowledge of the pending judicial sale proceeding). Similarly, the requirement for personal service is waived where the party contesting service participated in the proceedings. In re Sale of Real Est. by Lackawanna Cnty. Tax Claim Bureau, 986 A.2d 213, 217 (Pa. Cmwlth. 2009) (finding waiver of personal service where property owner timely filed an answer and objections and participated in the proceedings).
In this case, personal service was not required because Taxpayer had actual knowledge of the judicial sale and participated in the proceedings. At the hearing before the trial court, Taxpayer admitted to recording a video of a deputy approaching his door to post the property, and that the Rule was posted to his door. S.R.R. at 34b-35b. Taxpayer admitted he had actual knowledge of the hearing and judicial sale. Taxpayer filed an objection to the judicial sale on May 11, 2020, and attended the May 20, 2020 hearing on the Rule. Since Taxpayer had actual knowledge of the judicial sale and fully participated in the proceedings, the requirement for personal service was waived.
Taxpayer argues that Section 610 of the Law mandates the Rule be "returnable within 30 days from the date of the [petition] or as otherwise determined by the court." Taxpayer's Br. at 15 (citing 72 P.S. § 5860.610). According to Taxpayer, the Bureau needed to reinstate the Rule before serving him since the petition for the Rule was filed on October 22, 2019, but service was not attempted until March 2020. Id. However, the court did not grant the petition for the Rule until January 28, 2020, and the return date was set for May 20, 2020. S.R.R. at 12b. Accordingly, the Rule was valid until May 20, 2020. Furthermore, because we determine that Taxpayer had actual notice of the pending judicial sale before May 20, 2020, and actively participated in the proceedings, Taxpayer's contention that the Rule needed to be reinstated has no merit.
B. Abuse of Discretion
Taxpayer asserts that the trial court abused its discretion by denying his request for an evidentiary hearing on his tax-exemption claims. Taxpayer's Br. at 13. Additionally, Taxpayer asserts that the trial court abused its discretion by ordering him to turn off his cell phone during the proceedings; re-docketing his response to the Rule; and arbitrarily enforcing deadlines in favor of the Bureau. Id. at 4, 7, 12-15. Last, Taxpayer asserts that the trial judge abused her discretion by not recusing from the matter because of alleged bias. Id. at 13.
This Court has held "[a]n abuse of discretion exists when the trial court renders a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will." King v. Pittsburgh Water & Sewer Auth., 139 A.3d 336, 345 (Pa. Cmwlth. 2016).
Taxpayer also asserts, for the first time in this appeal, that he was entitled to a jury trial. Taxpayer's Br. at 11. "It is well settled that issues not raised before the trial court cannot be raised for the first time on appeal or in a Rule 1925(b) Concise Statement of [Errors Complained of] on Appeal." Orange Stones Co. v. City of Reading, Zoning Hearing Bd., 32 A.3d 287, 291 (Pa. Cmwlth. 2011). Taxpayer has waived this issue and thus this Court need not address this issue.
The Bureau counters that Taxpayer's arguments and proffered evidence are barred by the doctrine of res judicata and the trial court did not abuse its discretion when it denied Taxpayer's request for an evidentiary hearing. Bureau's Br. at 22-23. The Bureau also argues that none of the trial judge's actions constituted abuses of discretion. Id. at 25, 28.
The doctrine of res judicata "serves the twin purposes of protecting litigants from assuming the burden of re-litigating the same issue with the same party and promoting judicial economy through preventing needless litigation." McNeil v. Owens-Corning Fiberglas Corp., 680 A.2d 1145, 1148 (Pa. 1996). The doctrine of res judicata includes two components--"technical res judicata (claim preclusion) and collateral estoppel (issue preclusion)[, ]" which are "related, yet distinct." Robinson v. Fye, 192 A.3d 1225, 1231 (Pa. Cmwlth. 2018).
Claim preclusion bars litigants from relitigating claims "actually litigated" and "those claims which could have been litigated during the first proceeding if they were part of the same cause of action." Id. Claim preclusion applies where there is the same "identity of (1) the things sued upon or for, (2) the causes of action, (3) the persons or parties to the action, and (4) the quality or capacity of the parties suing or being sued." Pa. Soc. Servs. Union, Loc. 688 of Serv. Emps. Int'l Union v. Com., 59 A.3d 1136, 1143 (Pa. Cmwlth. 2012).
Issue preclusion bars litigants from relitigating facts or law. Robinson, 192 A.3d at 1231. Issue preclusion applies where the "(1) same issues were (2) necessary to a final judgment on the merits and (3) the party against whom issue preclusion is asserted was a party, or was in privity with a party to the prior action and (4) had a full and fair opportunity to litigate the issue in question." Id. at 1232.
Taxpayer asserts that res judicata does not apply, because of "intrinsic fraud" on the part of the trial court and this Court during the original proceedings. Taxpayer's Br. at 11.
According to Taxpayer, a demurrer cannot constitute a final adjudication on the merits. Taxpayer's Reply Br. at 7-8. This is not the case. An appealable final order exists when preliminary objections in the nature of a demurrer are sustained, and the complaint is dismissed. Catanese v. Taormina, 263 A.2d 372, 373 (Pa. 1970); see also Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996) ("A judgment is deemed final for purposes of res judicata or collateral estoppel unless or until it is reversed on appeal.").
We agree with the Bureau that the doctrine of res judicata, specifically issue preclusion, is appropriately applied in the instant matter to preclude Taxpayer from relitigating his tax exemption status. Taxpayer previously litigated the same issues regarding his tax-exempt status pertaining to the same Property before a different judge in the same trial court and on appeal to this Court in Martinez v. Tax Claims Bureau (Pa. Cmwlth., No. 1615 C.D. 2018, filed Aug. 13, 2019), reconsideration denied (Oct. 2, 2019). In that earlier matter, Taxpayer appealed from the trial court's dismissal of his complaint based on the Bureau's preliminary objections. Id., slip op. at 4. In that complaint, Taxpayer argued that the Property was tax exempt because "on the basis of poverty and disability, he is entitled to a property tax exemption under Article VIII, Section 2(b)(ii) of the Pennsylvania Constitution, Section 301.1(b) of The Local Tax Enabling Act (LTEA), and Section 304(d)(1) of the Tax Reform Code of 1971 (TRC)." Id. at 1. On appeal, this Court affirmed the trial court's decision that Taxpayer's complaint failed to state a claim to a tax exemption under any of these provisions. Id. at 5-6. It should be noted that Taxpayer also sought the same relief on the basis of alleged poverty and disability in federal district court which was similarly denied. Martinez v. Tax Claims Bureau, Civ. A. No. 19-CV-4087, 2019 WL 4447631 (E.D. Pa. Sept. 17, 2019), aff'd, 796 Fed.Appx. 154, 156 (3d Cir. 2020). In the federal court matter, the court held that "[n]early all the claims asserted by [Taxpayer] in his Complaint are barred by the doctrine of res judicata or claim preclusion and, accordingly, are legally frivolous or malicious." Martinez v. Tax Claims Bureau, Civ. A. No. 19-CV-4087, 2019 WL 4447631, at *3 (E.D. Pa. Sept. 17, 2019). The district court specifically relied on this Court's opinion in its res judicata analysis. Id. at *4 ("The legal sufficiency of each of these causes of actions was thoroughly considered as a basis for relief by the Berks County Court of Common Pleas and by the Commonwealth Court on appeal.").
Taxpayer sought to appeal our order to the Pennsylvania Supreme Court, which the Court denied per curiam. Martinez v. Tax Claims Bureau, 230 A.3d 339 (Pa. 2020).
Pa. Const. art. VIII, § 2(b)(ii).
Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6924.301.1(b).
Act of March 4, 1971, P.L. 6, as amended, added by the Act of March 13, 1974, P.L. 179, 72 P.S. § 7304(d)(1).
The record is clear that Taxpayer's claims in several prior litigations, and his claims in the instant matter, are one and the same. Taxpayer failed to develop his arguments in his brief to this court, however, he refers to the same constitutional and statutory authority that he asserted in his prior litigation. Taxpayer's Br. at 9-10. Specifically, Taxpayer again relies on Article VIII, Section 2(b)(ii) of the Pennsylvania Constitution, Pa. Const. art. VIII, § 2(b)(ii) (granting the General Assembly the authority to create tax exemptions for "persons who, because of age, disability, infirmity or poverty are determined to be in need of tax exemption or of special tax provisions."); and Section 304 of the TRC, 72 P.S. § 7304 (relating to special tax provisions for poverty). As discussed in our prior opinion, because "the Pennsylvania Constitution does not mandate the creation of a property tax exemption," Taxpayer's claims under that provision are without merit. Martinez, slip op. at 5. Similarly, because Section 304 of the TRC applies to personal income tax, it has no bearing on Taxpayer's property taxes. Id.
To the extent that Taxpayer argues he is tax exempt because of "the imposition of governmental action through intrinsic fraud, suppression of employment rights, suppression of [Social Security and] Welfare benefits[, ]" those claims were addressed in his federal litigation. Martinez, 2019 WL 4447631, at *6. The district court held that Taxpayer failed to state a claim under these theories because the termination of his cash assistance benefits was due to a legislative change, and not any action on the part of the Bureau. Id. The Third Circuit further elaborated that, even if Taxpayer had named a proper party, his arguments would still fail because general economic and social welfare legislation is judged on a rational basis standard, which Taxpayer failed to meet. Martinez, 796 Fed.Appx. at 156.
Accordingly, the elements of issue preclusion are clearly met. The property taxes and property, the parties, and causes of action are all identical. Taxpayer had a full and fair opportunity to litigate the issues in his prior cases and received a final judgment on the merits. For these reasons, the trial court did not abuse its discretion by invoking res judicata and denying Taxpayer a hearing on these claims.
Addressing Taxpayer's remaining abuse of discretions contentions, we find that the trial court did not abuse its discretion in requiring Taxpayer to turn off his cell phone since court rules prohibit the use of a cell phone during the proceedings. See, e.g., In re Arrington, 214 A.3d 703, 708 (Pa. Super. 2019) (holding appellant in contempt for refusing to turn off cell phone during proceedings). Second, the trial court did not abuse its discretion by re-docketing Taxpayer's response to the Rule. The original Rule involved many other properties; therefore, it was necessary for the trial court to reassign Taxpayer's petition so as not to affect the judicial sale of the other properties. This procedural change had no effect on Taxpayer's ability to pursue his claims.
Third, Taxpayer is mistaken as to the supplemental briefing schedule ordered by the trial court. At the May 20, 2020 hearing, the trial court ordered both parties to submit supplemental briefs by June 4, 2020. S.R.R. at 55b. There is no merit to Taxpayer's contention that "[the Bureau] had to submit [its] brief no later than the 28th day of May." Taxpayer's Br. at 7. Similarly, there is no merit to Taxpayer's argument that the trial court improperly decided the case on June 3, 2020, a day ahead of the briefing schedule, because both supplemental briefs had been submitted by June 3, 2020. S.R.R. at 67b, 80b. Taxpayer was not prejudiced by the Bureau filing its brief on June 2, 2020, within the 15-day briefing schedule, nor was Taxpayer prejudiced by the trial court issuing its order after both parties' supplemental briefs were submitted.
Last, Taxpayer asserts that the trial Judge was biased against him, because she had ruled against him in an unrelated prior action, ordered that his cell phone be turned off, had his petition re-docketed, and denied him an evidentiary hearing. Taxpayer's Br. at 13-15.
In general, recusal is required whenever there is substantial doubt as to a jurist's ability to preside over a matter impartially. The mere participation by a trial judge in an earlier stage of a particular proceeding does not provide a per se basis for requiring recusal of the trial judge. Before it can be said that a judge should have recused [herself], the record must clearly show prejudice, bias, capricious disbelief or prejudgment.Dunn v. Bd. of Prop. Assessment, Appeals & Rev. of Allegheny Cnty., 877 A.2d 504, 517 (Pa. Cmwlth. 2005).
For the reasons previously stated, the trial judge acted clearly within the law and did not abuse her discretion in any of these actions; thus recusal was clearly not warranted.
IV. Conclusion
For the reasons stated herein, the trial court's orders are hereby affirmed in full.
Because we affirm the trial court's June 3, 2020 order, we must also affirm the June 18, 2020 order denying Taxpayer's motion to vacate in which he raised the same issues as on appeal.
ORDER
AND NOW, this 8th day of September, 2021, Taxpayer's Application for Relief is GRANTED as his appeal is timely; however, the June 3, 2020 and June 18, 2020 Orders of the Berks County Court of Common Pleas are hereby AFFIRMED.