Summary
setting forth multifactor test to determine whether a dwelling is "vacant"
Summary of this case from Pa. Office of the Governor v. BreljeOpinion
No. 21 WAP 2015
06-20-2016
BRENTWOOD BOROUGH SCHOOL DISTRICT v. Heather HELD v. HSBC Bank USA, N.A. v. Grove Properties, Inc. Appeal of HSBC Bank USA, N.A.
Brett Lawrence Messinger, Esq., Brian Jeffrey Slipakoff, Esq., Duane Morris LLP, Robert McCarthy Palumbos, Esq., Philadelphia, for HSBC Bank USA, N.A. Emmanuel Sam Anthou, Esq., Washington, for Grove Properties, Inc. John Thomas Vogel, Esq., Tucker Arensberg, P.C., Pittsburgh, for Brentwood Borough and Brentwood Borough School District. Heather Held, Pro Se.
Appeal from the Order of the Commonwealth Court entered March 24, 2015 at No. 2346 CD 2013, affirming the Order of the Court of Common Pleas of Allegheny County entered December 11, 2013 at No. GD 09–004808, Timothy P. O'Reilly, J.
Brett Lawrence Messinger, Esq., Brian Jeffrey Slipakoff, Esq., Duane Morris LLP, Robert McCarthy Palumbos, Esq., Philadelphia, for HSBC Bank USA, N.A.
Emmanuel Sam Anthou, Esq., Washington, for Grove Properties, Inc.
John Thomas Vogel, Esq., Tucker Arensberg, P.C., Pittsburgh, for Brentwood Borough and Brentwood Borough School District.
Heather Held, Pro Se.
ORDER
PER CURIAM.
AND NOW, this 20th day of June 2016, the Order of the Commonwealth Court is AFFIRMED.
Justice DOUGHERTY filed a concurring statement.
Justice WECHT filed a concurring statement.
Justice DOUGHERTY, concurring.
I concur in the determination to summarily affirm the order below, writing only to explain why I agree an opinion need not accompany that mandate in this matter.
There are two kinds of per curiam affirmances (PCAs): PCAs adopting the opinion below, thereby signaling the Court's approval of the mandate and adoption of the reasoning of the court below, see, e.g., Commonwealth v. Greene, 623 Pa. 23, 81 A.3d 829 (2013), and PCAs affirming only the order below, such as here. In the latter instance, the Court offers neither approval nor disapproval of the reasoning below; the Court either agrees with the mandate, or at a minimum, is unconvinced the appellant has made a sufficient showing to disturb that result. See Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898, 904 (1996) (when Court issues per curiam affirmance, “[u]nless we indicate that the opinion of the lower tribunal is affirmed per curiam, our order is not to be interpreted as adopting the rationale employed by the lower tribunal in reaching its final disposition”) (emphasis in original). I realize the practice may be frustrating for the bench and bar, particularly when the decision below is published.
Like all courts with discretionary review dockets, this Court attempts to identify cases of broad import or interest for review. See Pa.R.A.P. 1114(b). Many considerations go into whether to accept a case beyond the nature of the issue: the sharpness of the dispute, the quality of the advocacy, the opinions below. Once we have accepted an appeal, other considerations may govern whether the case in fact appears to be the appropriate vehicle for exposition we had hoped: the state of the record, issue preservation, quality of the briefing, points made by amicus curiae, etc.
In this case, we granted discretionary review to determine when a property is “vacant” for purposes of redeeming property under Section 32(c) of the Pennsylvania Municipal Claims and Tax Liens Act, 53 P.S. §§ 7101 –7505. Section 32, codified at 53 P.S. § 7293(c), generally provides the owner of any property sold under a tax or municipal claim may redeem it by filing a petition within nine months of acknowledgment of a sheriff's deed and paying certain costs. 53 P.S. § 7293(a). An exception to the right of redemption exists, however, for “vacant property.” 53 P.S. § 7293(c) (“there shall be no redemption of vacant property by any person after the date of the acknowledgment of the sheriff's deed therefor”). The statute further provides a property “shall be deemed to be ‘vacant property’ unless it was continuously occupied by the same individual or basic family unit as a residence for at least ninety days prior to the date of the sale and continues to be so.” Id.
The Commonwealth Court decided the case via published opinion, see Brentwood Borough Sch. Dist. v. HSBC Bank USA, N.A., 111 A.3d 807 (Pa.Cmwlth.2015), promulgating a multi-factor test to determine vacancy. The case offered an apparent question of first impression respecting property vacancy versus continuous occupancy as a residence, and also promised an opportunity to examine the test promulgated below.
As it happens, however, in my judgment, the case has proved not to be an appropriate vehicle for providing guidance on the issue accepted, for several reasons. First, the record concerning the homeowner's use of the property, and intention respecting the property, is minimal. Second, it is apparent there are foundational issues which are not properly in focus, such as the burden of proof, which would affect any final decision. Third, this case may be of limited utility because of its factual posture, as it involves a financial institution attempting to redeem the property rather than the homeowner, which would be the more common circumstance, and which may be the cause of the scant record. Finally, the Commonwealth Court set forth a multi-part test in its published opinion, but then focused primarily upon the habitability of the premises in rendering its decision, making this a less-than-optimum vehicle even for consideration of the wisdom of the test. See id. at 813. Our summary affirmance should not be read as approval of the test adopted below.
Justice WECHT, concurring.
I join fully in the mandate of the Court. I write separately to expand briefly on the thoughtful and useful concurring statement of Justice Dougherty.
Like Justice Dougherty, I emphasize that our per curiam affirmance should be read neither as an approval nor disapproval of the test developed by the Commonwealth Court. Originally, this case appeared to be a vehicle by which this Court helpfully might define what it means for a property to be “continuously occupied ... as a residence” for purposes of the Pennsylvania Municipal Claims and Tax Liens Act, 53 P.S. §§ 7101 –7505, at § 7293(c). Following briefing and advocacy from the parties, it turns out that this is not the case.
The question presented on this appeal is not as simple as might appear at first blush. As the Commonwealth Court recognized, resolution of the matter requires a fact-intensive inquiry into the nature of an owner's use of a particular property. Upon close review, the record in this case lacked the requisite inquiry into the facts, and advocacy from the parties did nothing to elucidate matters. Future cases may well present opportunities to consider and refine the Commonwealth Court's non-exclusive list of factors and to apply them against a more developed fact record and within the context of more robust advocacy. Because we were unable to develop fully the legal issues before us, we must bide our time and allow these issues to incubate further within the lower courts, with the understanding that today's order reflects neither an endorsement nor a rejection of the Commonwealth Court's test.