Opinion
No. 558 C.D. 2012
11-13-2012
In Re: Consolidated Return of Luzerne County Tax Claim Bureau of the Upset Tax Sale of Properties Held on September 22, 2011 and Concluded on November 10, 2011 Appeal of: Mid-Atlantic Acquisitions, Inc.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Mid-Atlantic Acquisitions, Inc. (Mid-Atlantic) appeals from the February 29, 2012, order of the Court of Common Pleas of Luzerne County (trial court), which set aside an upset tax sale due to improper notice. We affirm.
Lucas Hernandez-Torres (Landowner) owns property located at 24 North James Street, Hazleton, Pennsylvania (Property). The Luzerne County Tax Claim Bureau (Bureau) listed the Property for upset tax sale on September 22, 2011, due to delinquent taxes. The Bureau continued the sale to November 20, 2011, at which time Mid-Atlantic purchased the Property.
On January 30, 2012, Landowner filed a petition for objections and exception to confirmation of the upset tax sale, arguing improper notice of the sale. Mid-Atlantic responded to the petition and disputed the improper notice allegation.
The trial court held a hearing on February 28, 2012, at which Landowner was the only witness to testify. Landowner denied receiving any notice of the sale. By order dated February 29, 2012, the trial court granted Landowner's petition and set aside the upset tax sale due to improper notice. Mid-Atlantic filed an application for reconsideration, which the trial court denied. This appeal now follows.
Our scope 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 erred as a matter of law. In Re: York County Tax Claim Bureau, 3 A.3d 765, 767 n.3 (Pa. Cmwlth. 2010).
Mid-Atlantic contends that the trial court should have upheld the November 20, 2011, upset tax sale based upon the Bureau's compliance with the Real Estate Tax Sale Law (Law). We disagree.
Act of July 7, 1947, P.L. 1368, art. VI, as amended, 72 P.S. §§5860.101 - 5860.803. --------
Section 602 of the Law, 72 P.S. §5860.602, which governs notice for upset tax sales, sets forth three methods of notice: (1) publication at least thirty days prior to the sale; (2) notification "by United States certified mail, restricted delivery, return receipt requested, postage prepaid" to the owner at least thirty days prior to the sale; and (3) posting of the property at least ten days prior to the sale. Section 602(e)(2) of the Law, 72 P.S. §5860.602(e)(2) (emphasis added), provides:
If return receipt is not received from each owner pursuant to the provisions of clause (1), then, at least ten (10) days before the date of the sale, similar notice of the sale shall be given to each owner who failed to acknowledge the first notice by United States first class mail, proof of mailing, at his last known post office address by virtue of the knowledge and information possessed by the bureau, by the
tax collector for the taxing district making the return and by the county office responsible for assessments and revisions of taxes. It shall be the duty of the bureau to determine the last post office address known to said collector and county assessment office.
It is well-settled that the notice provisions for an upset tax sale are to be strictly construed. Murphy v. Monroe County Tax Claim Bureau, 784 A.2d 878, 883 (Pa. Cmwlth. 2001). Strict compliance is necessary to guard against the deprivation of property without due process. Id. If any of the three methods of notice is defective, the tax sale is void. Ban v. Tax Claim Bureau, 698 A.2d 1386, 1388 (Pa. Cmwlth. 1997). The Bureau bears the burden of proving compliance with statutory notice provisions of the Law. Id.
Here, the Bureau's solicitor acknowledged that the notice of sale, which was sent to the Property, was returned unclaimed and that the Bureau did not send notice by United States first-class mail to Landowner. (N.T., 2/28/12, at 3-4.) Landowner testified that he did not receive any notice of the sale. (Id. at 7-8.) Landowner does not occupy the Property. (Id. at 6.) The deed to the Property clearly provides that Landowner resides at 213 East Hemlock Street, Hazleton, Pennsylvania. (R.R. at 12.) The Bureau made no attempt to send the notice to Landowner's residence. See Section 607.1 of the Law, added by the Act of July 3, 1986, P.L. 351, 72 P.S. §5860.607a (providing that when notification by mail is required, the Bureau "must exercise reasonable efforts to discover the whereabouts" of the property owner and notify him). Although the Bureau complied with the publication and posting requirements, the Bureau failed to comply with the mail notification requirements of section 602(e)(2) of the Law. We, therefore, conclude that the trial court did not err in setting aside the sale of the Property.
Accordingly, we affirm the order of the trial court.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 13th day of November, 2012, we affirm the February 29, 2012, order of the Court of Common Pleas of Luzerne County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge