Opinion
No. 2099 C.D. 2012
02-17-2015
Ernest E. Liggett and Marilyn Kostik Liggett (in their individual and ownership capacity with Alpha Financial Mortgage Inc., Brownsville Group Ltd, Manor Investments, Ltd and Redstone Group), Appellants v. Tax Claim Bureau Fayette County, Pennsylvania
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Ernest E. Liggett and Marilyn Kostik Liggett in their individual and ownership capacity with Alpha Financial Mortgage, Inc., Brownsville Group, Ltd, Manor Investments, Ltd, and Redstone Group (collectively, Landowners) appeal the order of the Fayette County Court of Common Pleas (trial court) denying their objection to the proposed judicial sale of its properties under the Real Estate Tax Sale Law (Law). We affirm.
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101-5860.803.
Landowners own a number of parcels of property in Brownsville Borough (Borough), Fayette County (County). One hundred of the parcels were exposed to upset sale by the County's Tax Claim Bureau (Bureau) on July 10, 2010, but were not sold. As a result, in July 2010, the Bureau's Director petitioned the trial court to confirm the report and return of sale of those properties and the trial court issued a decree nisi confirming the return of sale. (Reproduced Record (RR) at 85-100, 110).
Section 610 of the Law states, in relevant part:
In cases where the upset price shall not be bid at any such sale, the sale shall be continued, but not beyond the end of the calendar year, without further advertising, and the bureau may, at any time during or after the continuance, and shall, immediately at the written direction of the taxing district, file its petition in the court of common pleas of the county to sell the property under sections 612 and 612.1.... Upon the presentation of the petition ... the court shall grant a rule upon all parties thus shown to be interested to appear and show cause why a decree should not be made that said property be sold, freed and cleared of their respective tax and municipal claims, liens, mortgages, charges and estates, except separately taxed ground rents....72 P.S. §5860.610.
In July 2012, the Bureau's Director again petitioned the trial court to confirm the return of sale and to schedule a hearing on objections to the judicial sale of 99 parcels of property. (RR at 113-124). In August 2012, the trial court issued a rule to file exceptions to show cause why a decree should not be entered that the parcels be sold at a judicial sale scheduled for October 23, 2012; directed that the rule was returnable on or before September 6, 2012; and schedule a hearing to consider any and all objections to the sale. (Id. at 127).
In September 2012, Landowners filed an objection to the judicial sale, stating that the parcels at issue were the same properties involved in a pending eminent domain action in which Landowners had filed petitions for the appointment of a board of viewers alleging a de facto taking of those parcels in conjunction with a de jure taking of other properties by the Fayette County Redevelopment Authority (Authority) under the Eminent Domain Code (Code). Landowners asserted that the eminent domain matter was on appeal to the Pennsylvania Supreme Court so the trial court "no longer ha[d] jurisdiction to grant relief [sic] requested until the appellate Court relinquishes jurisdiction. Pa. R.A.P. 1701." (RR at 139).
This Court affirmed the trial court's order sustaining the Authority's preliminary objections to Landowners' declarations of taking, and the Supreme Court denied further review in Alpha Financial Mortgage, Inc. v. Redevelopment Authority of Fayette County (Pa. Cmwlth. No. 1596 C.D. 2011, filed May 10, 2012), appeal denied, (Pa. No. 270 WAL 2012, filed October 5, 2012).
Pa. R.A.P. 1701(a) states that "[e]xcept as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter."
On October 12, 2012, after the Supreme Court denied allocatur in the eminent domain matter, the trial court conducted a hearing on the Bureau's petition and Landowners' objection and denied the objection stating, in relevant part:
THE COURT: That that appeal is now null, because the Supreme Court has refused to take it and hear it. Accordingly, we are ruling on this date only on the Objection to Proposed Free and Clear Sale filed by [Landowners] on September 6, 2012, wherein their only objection was that there was [a] Petition for Appeal
pending. That now being moot, And Now, October 12, 2012, the Objection To Proposed Free and Clear Sale filed on September 6 of 2012, is denied as the appeal at the Supreme Court has been denied [r]endering their objection moot.(N.T. 10/12/12 at 10).
"N.T. 10/12/12" refers to the transcript of the October 12, 2012 trial court hearing on Landowners' objection to the judicial sale.
Section 612(a) of the Law states, in relevant part:
If upon hearing, the court is satisfied that service of the rule has been made upon the parties named in the rule, in the manner provided by this act, and that the facts stated in the petition are true, it shall order and decree that said property be sold at a subsequent day to be fixed by the court, freed and cleared of all tax and municipal claims, mortgages, liens, charges and estates, except separately taxed ground rents, to the highest bidder, and that the purchaser at such sale shall take and thereafter have an absolute title to the property sold free and clear of all tax and municipal claims, mortgages, liens, charges and estates of whatsoever kind, except ground rents, separately taxed....72 P.S. §5860.612(a).
In this appeal, Landowners argue that the trial court was without jurisdiction under Pa. R.A.P. 2572(a) to rule on their objections to its rule to show cause why the parcels should not be sold at the judicial sale because the record in the eminent domain matter had not yet been remanded by the Supreme Court following its denial of allocatur. However, Landowners' reliance on Pa. R.A.P. 2572 is misplaced.
This Court's scope of review in tax sale cases is limited to determining whether the trial court abused its discretion or erred as a matter of law and whether its decision lacks supporting evidence. Bell v. Berks County Tax Claim Bureau, 832 A.2d 587, 590 n.7 (Pa. Cmwlth. 2003).
Pa. R.A.P. 2572 states, in pertinent part:
(a) General rule. Unless otherwise ordered:
* * *
(2) The pendency of an application for reargument, or of any other application affecting the order, or the pendency of a petition for allowance of appeal from the order, shall stay the remand of the record until the disposition thereof, and until after 30 days after the entry of a final order in the appellate court possessed of the record.
(b) Supreme Court orders. The time for the remand of the record pursuant to subdivision (a) following orders of the Supreme Court shall be
* * *
(2) 14 days....
Pa. R.A.P. 2572 only precluded the trial court from acting further in the eminent domain action initiated under the Code until the record had been remanded in that matter, and did not preclude the trial court from acting in the instant separate case initiated under the Law. It is clear that the initiation of the eminent domain action did not preclude the subsequent transfer of title to the property under the Law. See, e.g., Captline v. County of Allegheny, 662 A.2d 691, 694 n.14 (Pa. Cmwlth. 1995) ("We recognize that the right to compensation for the taking of property is a personal interest which does not run with the land and is not normally transferred to subsequent purchasers.") (citation omitted); Chapleski v. Department of Highways, 291 A.2d 360, 362 (Pa. Cmwlth. 1972) ("It is clear that 'Nothing is more firmly settled in the law than the fact that the owner of land at the time of condemnation by eminent domain proceedings is entitled to any damages which result from the condemnation.... It is equally clear, however, that a grantor may, if he so states clearly in the deed, reserve for himself condemnation damages to the land transferred.'") (citations omitted). As a result, while the trial court stayed the properties' sale under the Law while the appeals in the eminent domain matter were pending out of an abundance of caution, its jurisdiction to proceed thereunder was not affected by those appeals.
See also 2-5 Nichols on Eminent Domain §5.02(3)(b) (3d ed. Bender 2014) (footnotes omitted) ("When land is subject to a mortgage and part of it is taken for the public use, a purchaser at a sale on foreclosure taking place after the taking is not entitled to compensation for the taking. If the judicial sale takes place while condemnation proceedings are pending, but before title has vested in the condemnor, the award is payable to the purchaser unless the parties involved have otherwise agreed to some other arrangement. The same principle is true even though the deed is not delivered until a date after the vesting of title in the condemnor. The purchaser on a sale for delinquent taxes and the purchaser at a sheriff's sale have been classified as owners. Both have also been held to have a compensable property right in premises taken by eminent domain, even if neither received a deed before the vesting of title in the condemnor. On the other hand, the right of redemption, in and of itself, has been held not to constitute a compensable interest in real property. The owner of this right is entitled to compensation only insofar as he or she is otherwise an owner of the property.").
As a corollary to this claim, Landowners also assert that the trial court could not proceed in this matter because it was automatically stayed under Section 362 of the Bankruptcy Code, 11 U.S.C. §362, based on Mr. Liggett's filing of his personal bankruptcy petition 13 days before the hearing. (RR at 164; N.T. 10/12/12 at 2-7). However, Landowners did not raise this claim in their Pa. R.A.P. 1925(b) Statement of Errors Complained of on Appeal so it has been waived for purposes of appeal. Pa. R.A.P. 1925(b)(iv); Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
Finally, Landowners claim that the trial court erred in disposing of a number of additional claims that they raised in their Pa. R.A.P. 1925(b) Statement of Errors Complained of on Appeal regarding the regularity of the sale under the Law. However, the trial court properly determined that any such additional claims were waived because they were not raised in Landowners' objection to the judicial sale, the sole objection being that the trial court did not have jurisdiction until the Supreme Court relinquished jurisdiction in the separate eminent domain matter, and they were first raised in their Pa. R.A.P. 1925(b) Statement. Rutledge v. Department of Transportation, 508 A.2d 1306, 1307 (Pa. Cmwlth. 1986) (holding that a constitutional issue was waived when the appellant first raised the issue through his Pa. R.A.P. 1925(b) Statement).
Specifically, Landowners claimed that the trial court erred in: (1) failing to determine that the Bureau acted arbitrarily and, therefore, unconstitutionally in treating their properties differently from related properties that are subjected to tax sale; (2) failing to determine that the Bureau violated Section 601 of the Law by exposing the subject properties to sale earlier than the second Monday of September and before October 1; (3) failing to determine that the Bureau's prior judicial sales were held in the spring, suggesting that the Bureau acted arbitrarily in petitioning for a special judicial sale in October 2012 and not in the yearly Spring 2013 sale with all other similar properties; (4) failing to determine that they were denied due process of law; (5) failing to determine that the Bureau's arbitrary standard affords different classes of people different treatment denying them equal protection of the laws; (6) rendering a decision that is not supported by the pleadings of record; (7) denying their objection to the judicial sale where unresolved issues of material fact remain as to the Bureau's arbitrary treatment; (8) failing to determine that the Bureau acted arbitrarily "without any rational basis" specific to their properties; (9) rendering a decision contrary to the pleadings that the Bureau's actions violated their due process and equal protection rights as supported by substantial evidence; (10) failing to apply the "presumption of regularity" in regard to scheduling a special judicial sale of Landowners' property because otherwise, there would be no basis for denying their objection; and (11) failing to determine that the Bureau's arbitrary action denied them due process and is, therefore, unconstitutional. --------
Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 17th day of February, 2015, the order of the Fayette County Court of Common Pleas dated October 12, 2012, at No. 2695 of 2009 GD, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge