Opinion
No. 447 C.D. 2013 No. 481 C.D. 2013
11-07-2013
Breeze Valley Farm Limited Partnership and its Successor In Interest, The Breeze Valley Farm Trust, Appellants v. Montgomery County Tax Claim Bureau and CJD Group, LLC
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Appellants, Breeze Valley Farm Limited Partnership and its successor interest, the Breeze Valley Farm Trust, appeal from the decision of the Court of Common Pleas of Montgomery County that denied their petition to upset tax sale, determining that the Montgomery County Tax Claim Bureau (Tax Claim Bureau) had satisfied all requirements of the Pennsylvania Real Estate Tax Sale Law (Tax Sale Law).
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101 - 5860.803.
On September 21, 2011, the Tax Claim Bureau sold the property located at 120 Cowpath Road, Salford Township, Montgomery County (Tax Parcel No. 44-00-00505-009) at a tax sale for unpaid county and township tax. The amount of back tax due and owing amounted to $3505.83. The property is a four-acre plot of land improved with single-family home and a barn. The last recorded owner of the property was Breeze Valley Farm, a Nevada Limited Partnership, which purchased the property and recorded a deed in July 1996. Roy Gibson was a limited partner in the partnership and the party responsible for paying the taxes associated with the property. In May 2010, Gibson notified the Tax Claim Bureau that all correspondence should be addressed to Garden Valley Executive Service, 5348 Vegas Drive, Las Vegas, Nevada 89108, not to Roy Gibson, P.O. Box 232, Telford, PA 18969.
Sometime in 2010, Gibson entered into an agreement with Ryan and Melinda MacNeill by which the property was transferred into a trust, the Breeze Valley Farm Trust. The MacNeills were to make incremental payments over a number of years to purchase the property and were responsible for all taxes associated with the property. Gibson is the sole trustee of the Breeze Valley Farm Trust and the MacNeills are the beneficial owners of the property. Gibson signed a quit claim deed, which was never filed with the county. On February 4, 2011, Gibson delivered a letter to the Salford Township tax collector, Carol Casper, stating that his interest in the property had been sold and that he would no longer be handling tax matters for the property. He further requested that "all notice or statements relative to the property be sent directly to the property address (c/o Breeze Valley Farm Trust, attention Ryan McNeill) so the current occupants would be able to take care of any and all taxes." Reproduced Record (R.R.) at 21a.
Neither the quit claim deed nor any of the trust or sale documents is a part of the record.
On June 3, 2011, the Tax Claim Bureau sent by certified mail, restricted delivery, a first notice of public tax sale addressed to Breeze Valley Farm c/o Garden Valley Executive Service, 5348 Vegas Dr., Las Vegas, NV 89108. The Tax Claim Bureau received a return receipt that contained an illegible signature and a delivery date of June 6. R.R. 124a. The return receipt did not contain a printed name or indicate whether it was received by the addressee or an agent of the addressee. On August 30, 2011, the Tax Claim Bureau mailed via first class mail a second notice of public tax sale addressed to Breeze Valley Farm, P.O. Box 232, Telford, PA 18969, which was returned as undeliverable. R.R. 24a-25a and 127a. The Tax Claim Bureau also sent a second notice addressed to the Las Vegas address. R.R. 26a-27a.
The Tax Claim Bureau did not collect taxes itself. Rather it outsourced the collection of county taxes to a company called Xspand. The collection of school district taxes was accomplished by a law firm, Portnoff Law Associates.
On September 21, 2011, CJD Group, LLC, purchased the property at the tax upset sale for $91,485.89. October 4, 2011, the Tax Claim Bureau sent a notice via both certified and first-class mail to both the Las Vegas address and the Telford address stating that the property had been sold at a tax upset sale. R.R. 28a-33a. The notices sent to the Telford address were returned as undeliverable. The notice sent to the Las Vegas address was delivered.
The certified mail return appears to have been signed, but none of the copies in either the original record or reproduced record are clear enough to determine whether the signature is legible or if a printed name was provided.
On March 15, 2012, Appellants filed a petition for leave to file objections and exceptions to tax sale nunc pro tunc pursuant to Section 607(b.1) of the Tax Sale Law, 72 P.S. § 5860.607(b.1), which the trial court granted. Appellants asserted that the notices of tax sale did not comply with statutory requirements mandated by Section 602 of the Tax Sale Law, 72 P.S. § 5860.602.
The trial court held a hearing on December 6, 2012, at which Gibson testified on behalf of Appellants and William Caldwell testified on behalf of the Tax Claim Bureau. Gibson testified regarding the change in ownership and how the MacNeills came to be living on the property. He also stated that he notified the Salford Township tax collector that Ryan MacNeill was responsible for all taxes related to the property. He testified that he was aware school district taxes were owed on the property and that he contacted Portnoff Law Associates and worked out a payment plan. Gibson stated that he was unaware of the fact that the county and township taxes were collected by Xspand rather than Portnoff Law Associates. He testified that he did not receive the first notice of tax sale that was sent via certified mail to the Las Vegas address and that he only became aware of the tax upset sale after Melinda MacNeill called and told him that two people had stopped by the property and informed her that they had purchased the property. Caldwell produced the Tax Claim Bureau's file on the property and testified regarding its contents.
Appellants submitted a brief in support of their request to overturn the tax sale in which it argued that the Tax Claim Bureau failed to comply with requirements of the Tax Sale Law with regard to notice. Appellants argued that notice was defective because the certified mail return receipt does not show whether the notice was accepted by the addressee or agent and a printed name was not provided resulting in no way of knowing who accepted the certified mail notice. Appellants asserted that the Tax Claim Bureau failed to comply with Section 602(e)(2) of the Tax Sale Law because it failed to contact the district tax collector to determine the appropriate address to send the second notice of tax sale. Importantly, contrary to Appellees' claim at oral argument that the issue was not raised in the trial court, Appellants clearly asserted that the Tax Claim Bureau's file did not contain any evidence that the property had been advertised for sale as required by the Tax Sale Law.
The trial court determined that the Breeze Family Farm, Limited Partnership was the record owner of the property because a deed had not been filed since 1996 providing otherwise. The trial court found that the tax sale notice was sent by certified mail to the record owner's Las Vegas address and received by the owner of the property as required by the Tax Sale Law. The trial court noted that the Tax Claim Bureau was not required to send the second notice of tax sale unless the first notice was returned without a signature from the address of record or other circumstance raising a significant doubt as to the actual receipt of the certified mail arose. The trial court concluded that the Tax Claim Bureau sent the second notice as a courtesy, not to comply with the statute. Trial Court's Opinion at 5; R.R. 163a. The trial court did not address Appellants' argument that the record was devoid of any evidence of publication of the tax sale. This appeal followed.
Appellants argue that the trial court erred in failing to address whether the Tax Claim Bureau provided proof of publication of the tax sale in a newspaper of general circulation or a legal journal as required by Section 602(a) of the Tax Sale Law.
Section 602 of the Tax Sale Law requires the Tax Claim Bureau to provide three separate methods of notice: (1) publication at least thirty days prior to the sale, (2) notification by certified mail at least thirty days prior to the sale, and (3) posting of the property at least ten days prior to the sale. If any of the three types of notice is defective, the tax sale is void. Hunter v. Washington Cnty. Tax Bureau, 729 A.2d 142 (Pa. Cmwlth. 1999). The burden of proving compliance with all applicable notice provisions is placed on the taxing authority. McElvenny v. Bucks Cnty. Tax Claim Bureau, 804 A.2d 719 (Pa. Cmwlth. 2002). The Tax Sale Law requires strict compliance with its notice provisions to guard against the deprivation of property without due process of law. Difenderfer v. Carbon Cnty. Tax Claim Bureau, 789 A.2d 366 (Pa. Cmwlth. 2001).
Appellants argue that the trial court erred in failing to determine whether the Tax Claim Bureau properly published the sale of the property in a newspaper of general circulation and a legal journal as required by Section 602(a). This Court has held that where proof of publication of a tax sale was not submitted into the record before the trial court, the taxing authority had failed to carry its burden with regard to the notice requirement of the Tax Sale Law and the sale of the property was void. In re 1999 Upset Sale of Real Estate, 811 A.2d 85 (Pa. Cmwlth. 2002); In re Exceptions to Sale of Prop. of Molchan, 503 A.2d 1051 (Pa. Cmwlth 1986).
The Tax Claim Bureau's representative, Caldwell, did not provide any testimony regarding efforts to publish the sale of the property in either a newspaper or legal journal. Neither the reproduced record nor the certified record contains a copy of a published advertisement or a proof of publication. Counsel for the Tax Claim Bureau stipulated at the hearing that the file produced by Caldwell (Exhibit P-3) contained everything sent out with regard to sale of the property. R.R. 100a; Notes of Testimony at 51. Because the Tax Claim Bureau failed to establish its compliance with the published notice requirement of Section 602(a) of the Tax Sale Law, the sale of the property was invalid. Therefore, we need not address the other arguments raised by appellants.
Counsel for Appellants served a notice to attend pursuant to Rule 234.7 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 234.7, on the Tax Claim Bureau on November 29, 2012, requesting that it produce its complete file and all records relative to the tax sale of the property including advertising of the sale of the property. --------
For the above reasons, we reverse.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 7th day of November, 2013, the order of the Court of Common Pleas of Montgomery County is hereby REVERSED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge