Opinion
No. 501 C.D. 2014
12-19-2014
Cathy S. Holler, Appellant v. Beaver County Tax Claim Bureau
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Cathy S. Holler (Holler) appeals an order of the Court of Common Pleas of Beaver County (trial court) denying her petition for the return of all fees and costs that she paid to the Beaver County Tax Claim Bureau (Tax Bureau) related to the listing of the real property located at 576 Merchant Street, Ambridge, Beaver County (property), for multiple tax sales between 2000 and 2008 due to the delinquent payment of taxes. We affirm.
For a full statement of the facts underlying this appeal, see In re Tax Sale Pursuant to Real Estate Tax Sale Law of 1947 (Appeal of Cathy Holler), 8 A.3d 358 (Pa. Cmwlth. 2010), appeal denied, 27 A.3d 1016 (Pa. 2011). As noted therein, Holler was not the record owner of the property during the period in question, but paid the taxes that were due on the property. See id. at 367-68 n.4. This appeal is the latest in a number of appeals regarding the fees and costs associated with the delinquent taxes on this parcel for this period. See id. at 360-64. See also In Re: Tax Sale Pursuant to the Real Estate Tax Sale Act of 1947, as amended (Appeal of: Cathy Holler), (Pa. Cmwlth. No. 670 C.D. 2011, filed December 4, 2012).
In December 2008, Holler paid, under protest, the full $12,983.65 in delinquent taxes and fees and costs for the property and the property was removed from the judicial tax sale list. However, the receipt from the Tax Bureau did not itemize the costs associated with listing the property for tax sale charged to Holler, stating only that Holler owed $3,580.00 in "miscellaneous costs." After the trial court denied her request for an itemized list of costs, Holler appealed to this Court, alleging, inter alia, that a taxpayer cannot be taxed unitemized aggregate costs. We agreed and reversed the trial court, explaining:
Section 206 of the Real Estate Tax Sale Law (Law), Act of July 7, 1947, P.L. 1368, 72 P.S. §5860.206, provides, in relevant part:
The County shall be liable, or initially liable for all costs, fees and expenses which shall be required to be paid to administer the affairs of the bureau and of this act, including but not limited to, costs of mailing and advertising notices, fees for the entry of claims, and proceedings thereon, and all other proceedings required by this act, except where otherwise provided by this act, ... title searches and salaries and compensation, and the costs of bonds of officers, employes and agents of the bureau, and rental of offices, furniture, equipment, material and supplies for the use of the bureau.
All such costs, fees and expenses shall be paid as other expenses of the county are paid from appropriations made by the county, and not otherwise, and when any of such costs, fees and expenses are recovered, they shall be deposited in the treasury of the county for the use of the county.
See Section 205(b) of the Law, 72 P.S. §5860.205(b) ("The bureau shall keep an accurate account of all money recovered and received by it under this act and maintain a separate account for each property."); Section 7 of the Act of July 22, 1936, P.L. 67, 72 P.S. §5568q ("Upon application ... by any taxpayer, the tax levying authorities ... shall furnish to such delinquent taxpayer a statement of the delinquent taxes owed by him to such municipal subdivision, showing the face amount, the penalty, if any, the interest, if any, and any costs or other charges in detail against such real property as shown by the records in his custody.").
A review of the record reveals that [Holler] should be provided a hearing limited to the itemization of the Tax Bureau's costs and whether such costs would be permitted under the Law. As previously stated, the Tax Bureau provided [Holler] with the tax due accompanied by "Bureau Costs." Although the Tax Bureau's form provides for costs associated with postage, advertising, lien certification, etc., the only amount listed on the form was for miscellaneous costs in the amount of $3,580.00, and total costs of $3,580.00. We agree with [Holler] that she is entitled to an itemization of the costs she owed and not merely a miscellaneous grouping of costs.In re Tax Sale Pursuant to Real Estate Tax Sale Law of 1947 (Appeal of Cathy Holler), 8 A.3d at 368. Accordingly, we remanded the case to the trial court for a hearing "to itemize costs that were charged, determine whether such costs would be permitted ... and, in the event that any costs paid are not identified by the Tax Bureau as properly chargeable, order a refund of same to [Holler]." Id.
The trial court conducted evidentiary hearings in late 2010 and early 2011 on the itemization of costs and issued an order in March 2011 directing Holler to pay the entire $3,850.00 based on the credible testimony and evidence introduced by the Tax Bureau. However, the trial court had conducted the hearings and issued its order after we had denied Holler's request for reargument in the prior proceedings, but before the Supreme Court had disposed of Holler's then-pending petition for allowance of appeal and before the record in those proceedings had been remanded to the trial court in September 2011. As a result, on Holler's appeal, we held that the trial court lacked jurisdiction to conduct any hearings until the record had been remanded to that court; we vacated the trial court's order directing Holler to pay the entire $3,850.00; and we "remanded [to the trial court] for a hearing to order the Tax Bureau to itemize costs charged to [Holler], determine whether such costs would be permitted under the Law and, in the event that any costs paid are not identified by the Tax Bureau as properly chargeable, order a refund of same to [Holler]." In Re: Tax Sale Pursuant to the Real Estate Tax Sale Act of 1947, as amended (Appeal of: Cathy Holler), slip op. at 5-6.
As a result, the trial court conducted three hearings on remand at which Beaver County's Chief County Assessor, Michael Kohlman (Kohlman), identified and reviewed Exhibit TCB-1 which was admitted into evidence without objection and testified that the Tax Bureau imposed the following fees and costs:
Exhibit TCB-1 contained a compilation of the fees and costs imposed that the Tax Bureau created and over 100 copies of various documents in the Tax Bureau's file to substantiate those fees and costs.
• In 2000, $19.00 for a Return and Claim Notice mailed on June 7, 2000;
• In 2001, $49.00 for a Return and Claim Notice sent by certified mail on June 8, 2001, identifying that the 2000 taxes weren't paid; $22.00 for a Notice of Sale sent by certified mail on July 6, 2001; $70.00 for advertisements of the sale in the July 6, 2001 Beaver County Times and in the July 14, 2001 Beaver County Legal Journal; $75.00 for posting/service of the Sale Notice on August 7, 2001; $14.00 for first class mailing of the Sale Notice; $25.00 for review and preparation for the upset sale; $25.00 for the September 7, 2001 Stay of Sale Agreement requiring Holler to make quarterly payments;
• In 2002, $50.00 for a Return and Claim Notice sent by certified mail on June 4, 2002, notifying Holler that the 2001 taxes were delinquent; $22.00 for a Notice of Sale
sent by certified mail on July 2, 2002, because the 2000 tax was not paid; $22.00 for a Notice of Sale sent by certified mail on October 8, 2002, because the sale was continued; $140.00 for advertising the September and November upset sales in the July 5, 2002 and October 10, 2002 Beaver County Times and the July 13, 2002 and October 12, 2002 Beaver County Legal Journal; $75.00 for posting/service of the Sale Notice on August 8, 2002; $14.00 for first class mailing; $50.00 for review and preparation for the September and November sales; $25.00 for the September 9, 2002 Stay of Sale Agreement; $50.00 for insufficient fund charges for the two checks Holler submitted as payments on September 9, 2002; $25.00 for an October 11, 2002 Stay of Sale Agreement;
• In 2003, $50.00 for a Return and Claim Notice sent by certified mail on June 3, 2003; $11.00 for a Notice of Sale sent by certified mail on July 3, 2003; $70.00 for an advertisement in the Beaver County Times and the Beaver County Legal Journal; $75.00 fee for posting/service of the Sale Notice on August 6, 2003; $14.00 for first class mailing; $25.00 for review and preparation for the sale;
• The property was exposed to an upset sale in 2003, but there were no bids;
• In 2004, $51.00 for mailing a Return and Claim Notice; $25.00 for posting and service; $270.00 for a judicial sale title search by Lawyers Abstract of Beaver County, Inc. (Lawyers Abstract) for presentation to the court for unpaid taxes; $300.00 fee for four Sheriff's services at $75.00 each; $70.00 for advertisement of the judicial sale in the May 14, 2004 Beaver County Times and the May 22, 2004 Beaver County Legal Journal; $25.00 for review and preparation for the sale;
• The property was not exposed to a judicial sale in 2004;
• In 2005, $52.00 for mailing a Return and Claim Notice; $25.00 for a posting and service fee; $270.00 for a judicial sale title search by Lawyers Abstract of Beaver County, Inc.; $75.00 fee for Sheriff's service; $70.00 for
advertisement in the Beaver County Times and the Beaver County Legal Journal; $25.00 for review and preparation for the sale;(Reproduced Record (R.R.) at 314RR-328RR; 639RR-640RR).
• The property was sold at a judicial sale in 2005, but that sale was subsequently set aside and all tax claims were returned to the property;
• In 2006, $51.00 for a Return and Claim Notice was sent by certified mail on June 2, 2006, to the new owner for the unpaid 2005 taxes;
• In 2007, $52.00 for mailing a Return and Claim Notice; $25.00 for a posting and service fee; $280.00 for a judicial sale title search by Lawyers Abstract of Beaver County; $375.00 fee for five Sheriff's services at $75.00 each; $70.00 for advertising in the October 23, 2007 Beaver County Times and the October 27, 2007 Beaver County Legal Journal; $25.00 for review and preparation for the sale;
• In 2008, $52.00 for mailing a Return and Claim Notice; $25.00 for a posting and service fee; $280.00 for a judicial sale title search by Lawyers Abstract of Beaver County; $525.00 fee for seven Sheriff's services at $75.00 each; $70.00 for advertising in the October 24, 2008 Beaver County Times and the October 25, 2008 Beaver County Legal Journal; and $25.00 for review and preparation for the sale.
Kohlman indicated that while the foregoing fees and costs total $4,130.00, Holler was credited with an October 27, 2004 payment of $545.00 so that the total fees and costs chargeable to the property for this period was $3,585.00. (R.R. at 316RR). He could not account for the $5.00 differential between the $3,850.00 in fees and costs that Holler actually paid thereby discharging these claims and the $3,585.00 that was actually chargeable to the property. (Id. at 641RR). He opined that the fees and costs imposed are a fair and accurate indication of those associated with the property as contained in the Tax Bureau's records and that the fees and costs were calculated in conformity with the Law. (Id. at 328RR-329RR).
Holler appeared at the hearings pro se and called Jerry Brown, a title agent for Lawyers Abstract, who testified that his company has title searches performed by independent contractors pursuant to a contract with Beaver County. (R.R. at 223 RR, 225RR, 228RR). He stated that the contract dictates what services they provide and what the charge is per search. (Id.). He testified that his company charged the Bureau $270.00 per title search in 2004, and that the price went up to $280.00 per search in 2007. (Id. at 233RR-234RR).
While the trial court limited Holler's cross-examination of Kohlman's testimony at the first hearing following remand of the record, she was permitted to extensively cross-examine him at the subsequent hearings regarding the fees and costs that the Tax Bureau imposed after Exhibit TCB-1 was admitted and Kohlman testified regarding its contents. The trial court also quashed or refused to enforce Holler's subpoena to permit cross-examination of Kohlman based on his statement of financial interests and to compel the attendance and production of documents of the Beaver County Prothonotary, the Beaver County Controller, the Beaver County Commissioners, and the Beaver County Sheriff or their employees with firsthand knowledge regarding the records of other parcels subjected to upset or judicial sales; the payment of costs to Lawyers Abstract; any County Commissioners' resolutions or minutes regarding the yearly Sheriff and tax claim costs and the job description handbook of the County Commissioners' financial administrator; the Sheriff's policy and procedure in connection with their services; and the maintenance and retention of the recordings of the courthouse cameras. (See R.R. at 180RR-215RR). Following the hearings, in February 2014, the trial court issued the instant order denying Holler's petition.
The trial court explained:
Based on the uncontroverted evidence presented by the [Bureau] and the misinterpretation of the documents by [Holler], this Court finds that the costs itemized by the [Bureau] are reasonable, uniform and accurate and the accounting thereof from 1999 through 2009 were properly charged for the multiple Tax Upset and Judicial Sales.(R.R. at 637RR).
In this appeal, Holler first claims that the Tax Bureau's fees and costs are not properly chargeable under the Law because the total amount established on remand is different from that claimed by the Tax Bureau at the time of Holler's payment as recognized in the prior proceedings. However, as outlined above, this Court remanded the matter to the trial court to conduct hearings requiring the Tax Bureau to present an itemization of the $3,580.00 in fees and costs that Holler paid under protest in December 2008. The Tax Bureau presented Kohlman's testimony and Exhibit TCB-1 at the remand hearings to comply with our remand order and to provide the itemized list of the fees and costs that were chargeable to the property and paid at that time. While Kohlman could not account for the $5.00 differential between the $3,850.00 in fees and costs that Holler actually paid thereby discharging these claims and the $3,585.00 that was actually chargeable to the property at that time, his testimony and Exhibit TCB-1 provide competent evidence to support the itemized fees and costs that were chargeable and paid by Holler in compliance with our remand order. Any conflicting evidence that Holler was charged and paid less in fees and costs than the total fees and costs that were actually chargeable to the property at the time of payment goes to the weight of the evidence presented on remand and not to its competence. Likewise, on appeal, we will not accede to Holler's request to reweigh any conflicting evidence that she presented showing that the Tax Bureau did not properly credit cash payments of fees and costs that she had made prior to her payment of $3,850.00 in December 2008.
Our standard of review in a tax sale case is limited to determining whether the trial court abused its discretion, rendered a decision without supporting evidence or clearly erred as a matter of law. In re Judicial Sale, Tax Claim Bureau of Northampton County, Easton, 720 A.2d 818, 820 n.3 (Pa. Cmwlth. 1998). The trial court is the finder of fact and has the exclusive authority to weigh the evidence, make credibility determinations, and draw reasonable inferences from the evidence presented. In re: Sale of Real Estate by Lackawanna Tax Claim Bureau (Appeal of Yankowski), 986 A.2d 213, 216 (Pa. Cmwlth. 2009).
As this Court has explained, "[w]here a case is remanded for a specific and limited purpose, 'issues not encompassed within the remand order' may not be decided on remand. A remand does not permit a litigant a 'proverbial second bite at the apple.'" Levy v. Senate of Pennsylvania, 94 A.3d 436, 442 (Pa. Cmwlth. 2014).
See, e.g., In re Petition of Viola, 838 A.2d 21, 27 (Pa. Cmwlth. 2003) ("Inconsistencies in evidence go only to evidentiary weight, not competence.") (citation omitted).
Finally, Holler claims that the trial court improperly limited her cross-examination of Kohlman at the first remand hearing and improperly quashed or refused to enforce her subpoenas. As indicated above, our review of the record shows that while the trial court limited Holler's cross-examination of Kohlman at the first hearing after the record was remanded, she was permitted to extensively cross-examine him at the subsequent hearings regarding the fees and costs that the Tax Bureau imposed after Exhibit TCB-1 was admitted and Kohlman testified regarding its contents and to introduce evidence of payments that she purportedly made on the balance due. In addition, Holler fails to identify how her cross-examination was limited regarding this evidence and how she was prejudiced thereby. Moreover, Holler fails to specify which of the various subpoenas that the trial court erred in quashing or failing to enforce or what competent and relevant evidence within the scope of our remand order was improperly excluded thereby. In the absence of such argument, we are unable to conclude that the trial court erred or prejudicially abused its discretion in this regard.
Holler raises a number of additional claims that were either not presented or preserved by objection or argument in the trial court at hearing or not raised in her Pa. R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal or not raised in her Pa. R.A.P. 2116(a) Statement of Questions Presented. As a result, these claims will not be addressed by this Court in this appeal. Pa. R.A.P. 302(a), 1925(b)(4)(vii), 2116(a); Wirth v. Commonwealth, 95 A.3d 822, 858 (Pa. 2014); Commonwealth v. Edmondson, 718 A.2d 751, 752 n.7 (Pa. 1998).
This Court will only reverse a trial court's decision to limit the scope of cross-examination where there is an error of law or a prejudicial abuse of discretion. Giosa v. School District of Philadelphia, 630 A.2d 511, 519 (Pa. Cmwlth.), appeal denied, 647 A.2d 512 (Pa. 1993), overruled in part on other grounds by Fernandez v. City of Pittsburgh, 643 A.2d 1176 (Pa. Cmwlth. 1994). Likewise, our review is limited to determining whether the trial court abused its discretion by either quashing or refusing to enforce the subpoenas. In re Semeraro, 515 A.2d 880, 882 (Pa. 1986); Swartz v. Pittsburgh Public Parking Authority, 439 A.2d 1254, 1255-56 (Pa. Cmwlth. 1981). An abuse of discretion "'is not merely an error of judgment, but rather occurs when the law is overridden or misapplied in reaching a conclusion or the judgment is exercised manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence of record.'" Commonwealth v. Rucci, 670 A.2d 1129, 1141 (Pa. 1996) (citation omitted). --------
Accordingly, the trial court's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 19th day of December, 2014, the order of the Court of Common Pleas of Beaver County dated February 24, 2014, at No. 11510 of 2007, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
In turn, Section 207 of the Law states, in pertinent part:
(a) In order to reimburse the county for the actual costs and expenses of operating the bureau created by this act, the county shall receive and retain out of all moneys collected or received under the provisions of this act, five per centum (5%) thereof.... The reimbursement herein provided for shall be in addition to the costs, fees and expenses advanced by the county, which, upon recovery, are payable to the county as provided by the preceding section of this act.
(b) [M]aximum charges for the following or similar types of services are authorized:
(1) Entry of Claim...
(2) Satisfaction of Claim...
(3) Preparation of Sale...
(4) Review of Records...
(5) Preparation of Deed...
(6) Discharge of Tax Claim...
(6.1) Removal from Sale...
(7) Agreement to Stay Sale...
(8) Postage...
72 P.S. §5860.207. See also Section 308(c) of the Law, 72 P.S. §5860.308(c) ("The costs of such mailed and posted notices shall be part of the costs of the proceedings and shall be paid by the owner the same as other costs."); Section 602(i) of the Law, 72 P.S. §5860.602(i) ("The costs of such advertisement and notices shall be added as part of the costs of such proceedings and shall be paid by the owner the same as other costs."); Section 605 of the Law, 72 P.S. §5860.605 ("The bureau shall fix as the upset price to be realized at the sale of any property upon a claim absolute, the sum of ... 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.").
It is the intent of this act to authorize the bureau to charge the costs of its operation against the properties for which a delinquent return is made on an equitable and pro-rata basis in so far as possible. The charge made for each service shall bear a reasonable relationship to the service rendered.