Opinion
Argued February 5, 1981
March 12, 1981.
Taxation — Tax sale — Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368 — Notice — Upset price — Lien divestiture.
1. Tax sale notices issued pursuant to provisions of Section 703(a) of the Real Estate Tax Sale Law, Act of July 7, 1947, shall state that there is no upset price and that the sale divests only the liens of taxes and tax judgments, and when such matters are not so stated in the notice as required, a sale thereunder must be set aside. [438]
Argued February 5, 1981, before Judges MENCER, ROGERS and CRAIG, sitting as a panel of three.
Appeals, Nos. 834 and 1166 C.D. of 1979, from the Order of the Court of Common Pleas of Potter County in case of In Re: Sale of Properties by the Tax Claim Bureau of Potter County on September 11, 1978, No. 9 of 1979 Civil Division.
Exception filed in the Court of Common Pleas of Potter County challenging tax sale. Sales confirmed in part and set aside in part. FINK, JR., P.J. Purchaser and tax claim bureau appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed in part and reversed in part.
Thomas G. Wagner, for Levern Erich.
John A. Duvall, with him D. Bruce Cahilly, for Tax Claim Bureau.
Levern Erich and the Tax Claim Bureau of Potter County cross-appeal from the order of the Court of Common Pleas of Potter County on Erich's exceptions to real estate sales held by the bureau in September 1978, when Erich was one of the purchasers.
Although the bureau belatedly raises a question as to Erich's standing, that issue need not detain us because he clearly has standing; he has a substantial pecuniary interest in the sales, as to which he has alleged fatal procedural irregularities.
The parties agree that Section 703 of the Real Estate Tax Sale Law governs the challenged sales. Section 703(a) provides that each sale shall be made in the manner provided in Articles III and VI of that law, "except that it shall be a simple public sale with no upset price, and shall divest only the lien of tax claims and tax judgments." Subsection (a) also provides that "[t]he notices to be given of such sale, as required in Article VI, shall state that there is no upset price and that the sale shall divest only the lien of taxes and tax judgments."
Act of July 7, 1947, P.L. 1368, as amended, 72 P. S. § 5860.703.
That section disposes of this case, because the notice of sale published by the bureau fulfilled neither of those requirements; on the contrary, that notice actually recited upset prices for the properties involved here, and stated that "[n]o sale will be made unless the bid is at least equal to the upset price", in absolute conflict with Section 703.
The bureau's failure to comply with the statutory mandate requires us to set aside the sales to Erich. "If the proper notice required by the Act is not given, the tax sale must be set aside." Daubenspeck Appeal, 48 Pa. Commw. 612, 614, 411 A.2d 837 (1980). The trial court's refusal to do so was an error of law.
Accordingly, we will affirm the trial court's order insofar as it set aside five of the sales to Erich, and will otherwise reverse that order and declare the remaining sales to Erich null and void. However, we will not set aside the entire proceedings of September 1978 because no other parties to those proceedings are presently before us with exceptions.
The court based that action on a different theory than that underlying our decision here.
In view of our disposition of the above issue, we need not and do not reach the other issues raised by the parties.
ORDER
AND NOW, March 12, 1981, the order of the Court of Common Pleas of Potter County, dated March 28, 1979, at No. 9 of 1979 is affirmed insofar as it set aside five (5) sales by the Tax Claim Bureau of Potter County to Levern Erich and ordered refund of the monies paid on those sales, and is otherwise reversed; the remaining sales to Levern Erich are hereby declared null and void and said Tax Claim Bureau is ordered to refund the remainder of payments made by Levern Erich, with interest in accordance with said order.