Opinion
No. 670 C.D. 2011
12-04-2012
In Re: Tax Sale Pursuant to the Real Estate Tax Sale of 1947, as amended Appeal of: Cathy Holler
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Cathy Holler (Taxpayer) appeals from an order of the Court of Common Pleas of Beaver County (trial court) ordering her to pay $3,580 to the Beaver County Tax Claim Bureau (Tax Bureau) for costs related to the listing of her real property for multiple tax sales. For the reasons that follow, we vacate the trial court's order and remand for proceedings consistent with this Opinion.
Taxpayer is the owner of real property located at 576 Merchant Street in Ambridge, Pennsylvania (property). The property was listed for judicial tax sale on multiple occasions between 2002 through 2008 due to delinquent property taxes. In December 2008, Taxpayer paid, under protest, the full $12,983.65 in delinquent taxes 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 Taxpayer, stating only that Taxpayer owed $3,580 in "miscellaneous costs." After the trial court denied her request for an itemized list of costs, Taxpayer appealed to this Court, claiming, inter alia, that a homeowner cannot be taxed unitemized aggregate costs. We reversed, finding that:
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).
Section 7 of the Act of July 22, 1936, P.L. 67, provides that "[u]pon 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." 72 P.S. § 5568q. (Emphasis added).
A review of the record reveals that Taxpayer 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 Taxpayer 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 Taxpayer 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 Taxpayer." Id.
Upon receipt of this Court's order of September 20, 2010, the trial court scheduled a hearing for October 13, 2010, to address the itemization of costs. After learning that Taxpayer had filed an application for an extension of time to file a petition for reargument with this Court, the trial court postponed the hearing. On October 21, 2010, Taxpayer filed a petition for reargument with this Court, which we denied on December 2, 2010. Taxpayer then filed a petition for allowance of appeal with the Supreme Court on January 3, 2011, which was denied on August 24, 2011.
The trial court held an evidentiary hearing on the itemization of costs on December 28, 2010, after we denied the request for reargument but before the petition for allowance of appeal had been filed with the Supreme Court. At that hearing, Michael Kohlman, the Chief County Assessor for Beaver County, introduced a chart he prepared detailing the costs associated with the Tax Bureau's actions with respect to the subject property. The trial court held another hearing on January 27, 2011, to determine the amount of costs owed. Shortly thereafter, on February 3, 2011, the Tax Bureau presented a motion for a hearing to contest the validity of evidence presented by Taxpayer at the January 27, 2011 hearing. The trial court granted the motion and conducted an additional hearing on that issue on February 8, 2011. On March 16, 2011, finding the Tax Bureau's witnesses and the documentation placed into evidence credible, the trial court issued an order directing Taxpayer to pay the entire $3,580 amount. This appeal by Taxpayer followed.
That evidence was a letter from the Sheriff's Office to Taxpayer pursuant to a request under the Right-to-Know Law (RTKL), Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104. The letter provided information about Sheriff's costs with respect to judicial tax sales. The Tax Bureau argued that there were subsequent communications between the Sheriff's Office and Taxpayer in which the Sheriff's Office provided her with corrected information and, therefore, Taxpayer knowingly provided a false statement to the trial court.
The Tax Bureau presented the motion on February 3, 2011, as an uncontested motion. While the Tax Bureau's counsel indicated that he sent Taxpayer notice of the motion on January 31, 2011, the record indicates that the mailed notice was not received at the post office until February 2, 2011. (Appellant's Reproduced Record at 328). Beaver County Local Rule 206B requires a party to provide advanced notice of at least three business days to its opponent before presentment of a motion. Taxpayer, therefore, claims that the February 3, 2011 hearing constituted an impermissible ex parte communication between the Tax Bureau's counsel and the trial court.
Our standard of review in a tax sale case is limited to determining whether the lower 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). --------
On appeal, Taxpayer, among other issues, contends that under the Pennsylvania Rule of Appellate Procedure (Pa. R.A.P.) 2572(a), the trial court could not issue its March 16, 2011 order because the record had not been remitted where the Supreme Court still had her petition for allowance of appeal under consideration. Pa. R.A.P. 2572(a) provides:
(a) General Rule - Unless otherwise ordered:
(1) The record shall be remanded to the court or other tribunal from which it was certified at the expiration of 30 days after the entry of the judgment or other final order of the appellate court possessed of the record.
(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.
Additionally, Pa. R.A.P. 2591 instructs a trial court on how to proceed in complying with a judgment or order entered by an appellate court. Commonwealth v. Salley, 957 A.2d 320, 323 (Pa. Super. 2008). That rule provides, in relevant part:
(a) General Rule. On remand of the record the court or other government unit below shall proceed in accordance with the judgment or other order of the appellate court and, except as otherwise provided in such order, Rule 1701(a) (effect of appeals generally) shall no longer be applicable to the matter.Pa. R.A.P. 2591. Rule 2591, then, only authorizes a trial court to proceed with the directives of the appellate court after remand of the record. Salley, 957 A.2d at 323 (emphasis added).
Due to Taxpayer's filing of a petition for reargument with this Court and a petition for allowance of appeal with the Supreme Court, the record was not remanded to the trial court until September 19, 2011. Because the trial court did not receive the record until then, it lacked jurisdiction to conduct any further hearings or enter its order of March 16, 2011. See Salley, 957 A.2d at 324 (trial court lacked jurisdiction to conduct resentencing following appeal from judgment of sentence because record had not been remanded to the trial court at time of resentencing hearing); Stanton v. Lackawanna Energy, Ltd., 915 A.2d 668, 673 (Pa. Super. 2007) (trial court was without authority to enter final order granting summary judgment in negligence action until Supreme Court remanded record to trial court and, therefore, order of summary judgment entered prior to such remand was void as premature); and Bell v. Kater, 839 A.2d 356, 358 (Pa. Super. 2003) (grant of appeal nunc pro tunc was a nullity because it was entered after taxpayer filed notice of appeal with Superior Court and before record was remanded to trial court pursuant to Pa. R.A.P. 2591(a)).
Accordingly, the trial court's order is vacated, and the matter is remanded for a hearing to order the Tax Bureau to itemize costs charged to Taxpayer, 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 Taxpayer.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 4th day of December, 2012, the order of the Court of Common Pleas of Beaver County, dated March 16, 2011, at No. 11510-2007, is vacated. The matter is remanded for a hearing to order the Tax Bureau to itemize costs charged to Taxpayer, 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 Taxpayer.
Jurisdiction relinquished.
/s/_________
DAN PELLEGRINI, President Judge