Opinion
No. 2286 C.D. 2013
10-03-2014
Acee Maschang, Appellant v. Tax Claim Bureau of Pike County
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Acee Maschang (Maschang) appeals an order of the Court of Common Pleas of Pike County (trial court) that denied her objections and/or exceptions to the tax sale of her two properties. Maschang asserts the trial court erred in concluding the Pike County Tax Claim Bureau (Bureau) met its burden of proving it strictly complied with the posted notice requirement of the Real Estate Tax Sale Law (Law). Upon review, we affirm.
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101-5860.803.
I. Background
Maschang owned two properties along Childs Park Road in Delaware Township, Pike County: a 1.01-acre parcel improved with a house and two outbuildings (parcel 1), and an adjacent 9.02-acre vacant parcel (parcel 2).
In April 2013, the Bureau sent notices to Maschang's Ridgefield Park, New Jersey address by certified mail, notifying her that her properties would be subject to a tax sale for delinquent tax in the amount of $3763.80 on parcel 1 and $721.96 on parcel 2. On July 26th, the Bureau sent Maschang notices of tax sale scheduled for September 25th by certified mail. She was advised that approximate upset prices were $5752.50 for parcel 1 and $1266.39 for parcel 2. A few days later, Maschang signed the return receipts for the certified mail and called the Bureau. She told the Bureau's employee she would send the Bureau the delinquent tax amount by the end of the month.
The Bureau published the notices of tax sale of Maschang's properties in two newspapers of general circulation and in a legal journal more than 30 days prior to the scheduled tax sale. On September 9th, Edward Hammond, a constable (constable) signed two standard affidavit forms, stating he posted the tax sale notices on Maschang's properties on September 6th. At the September 25th tax sale, Robert and Janet Hugg purchased parcel 1 for $13,008.12 and parcel 2 for $19,242.98. After the trial court confirmed the tax sale nisi, Maschang filed objections and/or exceptions to the sale.
At a hearing, the Bureau's Director, Cynthia Garris, testified Maschang was delinquent in tax payments about every year since her purchase of the properties in 1997 and paid taxes only after the Bureau scheduled a tax sale.
Maschang testified that when she called the Bureau on July 29, 2013, she was eight-and-a-half months pregnant and suffered from preeclampsia, gestational diabetes and blood mutations, that her doctor placed her on strict bed rest, and that even after she delivered a child on August 10th, she was still confined to bed rest until late September. According to Maschang, the estimated values of her properties were $60,000 to $70,000.
Maschang's father, Julio Maschang, testified he visited Maschang's properties several times between July 20 and September 22, 2013, and he did not see any tax sale postings on the properties when he visited on September 21 and 22 before the September 25th tax sale.
The constable testified regarding his usual procedure for posting a tax sale notice. He removes the backing of a notice, staples four corners of the laminated portion of the notice with a staple gun, records the date of posting and later signs an affidavit of posting before a notary in the Bureau's office. On cross-examination, he testified he posted the notices on large trees on Maschang's properties at about "eye height so everyone could see [the notices]." Tr. Ct. Hearing, Notes of Testimony (N.T.), 11/8/13 at 41; Reproduced Record (R.R.) at 59a.
Ultimately, the trial court determined the evidence presented clearly indicated Maschang received notices of the tax sale of her two properties at her address of 83 Park Street, Ridgefield Park, New Jersey. The initial notices sent for each parcel were mailed in April 2013, and the notices were signed for and the signed receipts returned to the Bureau. The notices of the scheduled sale were mailed in July to the Park Street address, were signed for, and the receipts returned to the Bureau. Further, the properties were posted on September 6, 2013, and the notarized affidavits of posting were introduced into evidence. Also, the testimony of the constable confirming such posting was credible and uncontradicted. The trial court also determined the scheduled sale of the properties was properly advertised, and proof of publication was introduced into evidence.
Finally, the trial court explained, Maschang contacted the Bureau on July 29, 2013 and indicated the taxes would be paid by the end of July. Maschang claimed in her testimony that she did not properly receive the tax bills for the property. However, evidence was presented to indicate Maschang had a history of non-payment of taxes and would pay taxes only after the property was scheduled for tax sale. Additionally, Maschang confirmed she did contact the Bureau on July 29 promising to make a prompt payment. However, she testified that because of medical concerns related to her pregnancy, she was unable to take any action from the end of July until the end of September.
Confirming the accuracy of the Bureau's contact information for Maschang, post-sale notices were sent to Maschang on September 27, 2013. Receipts for those notices were signed and returned to the Bureau. Based on all the evidence presented, the trial court determined the Bureau complied with all the requirements of the Law relating to notice, posting and advertising of the tax sale. Further, Maschang received all the notices of the tax sale, but she failed to take the required action necessary to remove the property from the impending sale. Therefore, the trial court confirmed the tax sale of the properties.
In a subsequently filed opinion pursuant to Pa. R.A.P. 1925(a), the trial court reiterated its determinations that the Bureau met its burden of proving it complied with the Law's notice requirements. Of particular import here, with regard to the posting of the properties, the trial court explained (with emphasis added):
[T]he evidence presented clearly established that the properties were properly posted. The notarized affidavit of posting was introduced into evidence along with credible and uncontradicted testimony from the constable that the properties were posted on September 6, 2013. Specifically, the constable indicated he posted the properties by placing the postings on the trees surrounding the properties, a location which is reasonable, conspicuous, and likely to inform both the taxpayer and the public of the intended sale. See Pottery Emporium, Ltd. v. Tax Claim Bureau [of Monroe Cnty. (Pa. Cmwlth. No. 1392 C.D. 2010, filed June 28, 2011) (unreported)] (citing In re Sale of Real Prop. for Delinquent Tax by Elk County Tax Claim Bureau, 793 A.2d 1025 (Pa. Cmwlth. 2002) (where notice posted on a tree that was closest to the road was found reasonable.)).Tr. Ct., Slip Op., 2/6/14, at 4. Thus, the trial court recommended that this Court affirm its decision. This matter is now before us for disposition.
The trial court also rejected Maschang's assertion that Section 607.1 of the Law, which was added by the Act of July 3, 1986, P.L. 351, 72 P.S. §5860.607a (generally stating that, after an unsuccessful attempt to serve a property owner or other party with an interest in a property subject to tax sales, a tax claim bureau must take reasonable steps to discover the whereabouts of that party) applied here. Specifically, the trial court stated that based on the evidence presented Section 607a was not triggered because numerous notices were sent certified mail to Maschang's address, which were signed. Further, at the hearing, Maschang admitted she received notice. Maschang also admitted she spoke with an individual at the Bureau and informed that individual she would pay the delinquent taxes prior to the sale. Thus, the trial court determined, the Bureau was not required to perform any additional inquiry into Maschang's whereabouts as no circumstances existed that would raise significant doubt that Maschang did not receive notice of the tax sale prior to the sale. Maschang does not challenge this determination in this appeal.
II. Discussion
A. Contentions
On appeal, Maschang argues it was the Bureau's burden to prove it strictly complied with the Law's requirements by properly posting notices of the upcoming tax sale in conspicuous places on each of Maschang's two properties in order to attract the attention of not only Maschang but also of the general public. Maschang asserts the Bureau did not meet its burden.
In tax sale cases, our review is limited to determining whether the trial court abused its discretion, erred as a matter of law or rendered a decision with a lack of supporting evidence. Barylak v. Montgomery Cnty. Tax Claim Bureau, 74 A.3d 414 (Pa. Cmwlth. 2013).
Maschang contends the Bureau established, at best, that it posted notices of the upcoming tax sale, as the constable who performed the posting testified only that he posted the notices eye-height on trees, which were presumably located either on or near Maschang's properties. The Bureau did not, however, establish it properly posted these notices in a manner that was both reasonable and conspicuous, as the Bureau offered no evidence about the postings except that the laminated portions of two 8 ½" x 11" notices were posted at eye height on trees. Maschang contends the Bureau did not offer any evidence to explain: (1) why the constable did not post one notice on the house or other outbuildings located on Maschang's improved property; (2) where the trees that were posted are located in relation to Maschang's properties and the road; and, (3) whether the trees that were posted are even located on Maschang's properties. Without such evidence, Maschang argues, the trial court could not properly conclude the Bureau met its burden of proving the constable's postings were conspicuous, calculated to attract attention, and placed so as to maximize the public's opportunity to view the notices.
Maschang also contends neither Pottery Emporium nor Elk County, cited by the trial court, support the trial court's conclusion that the Bureau established compliance with the posting requirement. In Pottery Emporium, the issue was not whether the notice was properly posted, but whether the trial court's finding that the purchaser of the property interfered with the properly posted notice before the sale was supported by the evidence. Also, unlike in Elk County, Maschang argues, the Bureau did not present any evidence that the trees on which the notices were posted were closest to the road. Further, contrary to the trial court's statement, Maschang argues, the constable did not testify he posted the notices on the trees "surrounding the properties." Tr. Ct., Slip Op. at 4.
In response, the Bureau argues the evidence and testimony it presented below were sufficient to comply with the posing requirement in Section 602(e)(3) of the Law. The Bureau asserts it introduced two notarized affidavits of posting which certified that the constable posted both properties on September 6, 2013. The Bureau contends the constable's affidavits gave rise to the presumption of proper posting, and the burden shifted to Maschang to rebut that presumption. See Picknick v. Washington Cnty. Tax Claim Bureau, 936 A.2d 1209 (Pa. Cmwlth. 2007); Wheatcroft v. Schmid, 301 A.2d 377 (Pa. Cmwlth. 1973). The constable also testified he specifically recalled posting both of Maschang's adjoining properties along Childs Park Road, a public road upon which the properties are located. The constable used a staple gun to post all four corners of the laminated tax sale notice to a large tree, a foot round, at about eye height "so everyone could see it." N.T. at 41; R.R. at 59a. He used this method for both properties.
The Bureau contends the trial court, as fact-finder, drew reasonable inferences from both the exhibits and the testimony presented by the Bureau that Maschang's properties were posted in a manner that was reasonable, conspicuous and likely to inform the public of the intended sale. Because Maschang had actual notice of the sale, the Bureau maintains, the only relevant inquiry concerning posting was whether it was done in a way that would be likely to inform the public. Because Maschang's properties are adjoined and both located along the public Childs Park Road, it was reasonable for the trial court to infer and conclude that the posted notices, stapled on large trees along Childs Park Road, at eye height "so everyone could see it," could reasonably be viewed by the public. N.T. at 41; R.R. at 59a.
The Bureau argues it was also within the trial court's authority to weigh the credibility of the witnesses. The only testimony presented by Maschang concerning the posting was through her father, who claimed he never observed the posted notices. However, the only occasion Mr. Maschang visited the properties after the constable posted them was on September 21 and 22, 2013 more than two weeks after the postings. The Bureau argues the trial court properly gave more credibility and weight to the Bureau's evidence of the regularity and propriety of the postings.
B. Analysis
The Law's provisions governing tax upset sales require the tax claim bureau to provide three types of notice: published notice, mail notice and posted notice. 72 P.S. §5860.602. The Law's notice provisions are to be strictly construed; strict compliance with those provisions is necessary to guard against deprivation of property without due process of law. Rinier v. Tax Claim Bureau of Delaware Cnty., 606 A.2d 635 (Pa. Cmwlth. 1992). Additionally, if any one of the required methods is defective, the sale is void. Id. The Bureau carries the burden of proving strict compliance with all three statutory notification requirements. Id.
Of particular relevance here is the provision governing posted notice, which states, "[e]ach property scheduled for sale shall be posted at least ten (10) days prior to the sale." 72 P.S. §5860.602(e)(3). As to this requirement, this Court stated:
Our Supreme Court has explained that a presumption of the regularity of an official act, herein posting, 'exists until the contrary appears.' Hughes v. Chaplin, [132 A.2d 200, 202 (Pa. 1957)] (quoting Beacom v. Robison, 43 A.2d 640, 643 (Pa. Super. 1945)). A property owner may create a contrary appearance and overcome this presumption by filing exceptions to the tax sale, averring that the Law's notice provisions were not strictly followed. [In re Upset Price Tax Sale of September 10, 1990 (Sortino), 606 A.2d 1255, 1257 (Pa. Cmwlth. 1992)]. The burden then shifts to the Bureau or the purchaser to show that the Bureau strictly 'complied with the notice provisions' of the Law. Id.
As to what is necessary to accomplish the requisite posting, Section 602 provides no specific method .... While the Law is silent as to the manner of posting required, this Court has 'interpreted Section 602(e)(3) to mean that the method of posting must be reasonable and likely to inform the taxpayer,'
as well as the public at large, 'of an intended real property sale.' In re Tax Sale of 2003 Upset, 860 A.2d 1184, 1188 (Pa. Cmwlth. 2004). Precedent requires that the posting be reasonable, meaning that it must be conspicuous, likely to ensure notice, and placed for all to observe. Sortino, 606 A.2d at 1258. The posting must be so conspicuous that the property owner and the general public will see it. In re Sale of Real Estate by Montgomery Tax Claim Bureau, 836 A.2d 1037, 1042 (Pa. Cmwlth. 2003). The reason for this is two-fold. First, if made aware of the tax sale, the public is more likely to participate in the sale. Sortino, 606 A.2d at 1258. Public participation will increase the number of bidders, thereby improving the likelihood of recouping the delinquent taxes and providing a fair sale to the delinquent taxpayer. Id. Posting, likewise, serves to notify others with an interest in the property, 'such as mortgage and other lien holders.' Id.In Re: Upset Sale Tax Claim Bureau McKean Cnty. on September 10, 2007, 965 A.2d 1244, 1247 (Pa. Cmwlth. 2009). "Each case depends on the nature and location of the property and, of course, the placement of the notice." Id. at 1248. However, "[o]ne of the few constants that can be gleaned from the multitude of cases analyzing the posting requirement is that a posting will generally not satisfy Section 602(e)(3) of the [Law] unless it is visible from the road fronting the property." In re Somerset Cnty. Tax Sale of Real Estate Assessed in Name of Tub Mill Farms, Inc., 14 A.3d 180, 184 (Pa. Cmwlth. 2010) (footnote omitted).
Further, as fact-finder, "the trial court has exclusive authority to weigh the evidence, make credibility determinations and draw reasonable inferences from the evidence presented." Barylak v. Montgomery Cnty. Tax Claim Bureau, 74 A.3d 414, 417 (Pa. Cmwlth. 2013) (emphasis added).
About a year ago in Barylak, this Court, speaking through President Judge Pellegrini, explained that an affidavit of posting, which indicates the date and time a deputy sheriff posted a property, serves as competent evidence that a property was properly posted. Further, where the fact-finder rejects a taxpayer's contrary evidence that he did not see the posted notice and, as a result, determines the taxpayer's evidence is insufficient to overcome the tax claim bureau's evidence, "[w]e will not disturb such a determination on appeal." Id. at 417.
Here, in order to meet its burden of proving notice of the tax sale of Maschang's properties was properly posted, the Bureau presented the testimony of the constable who posted the properties, R.R. at 54a-61a, as well as notarized affidavits of posting completed by the constable, which indicated the date he posted notice at the properties. See R.R. at 107a-107b, 108a-108b. "Such an affidavit of posting is competent evidence that the premises were properly posted." Barylak, 74 A.3d at 416-17 (citing 42 Pa. C.S. §6104(a); In re Sale of Real Estate by Lackawanna Cnty. Tax Claim Bureau, 986 A.2d 213, 217 (Pa. Cmwlth. 2009); Picknick v. Washington Cnty. Tax Claim Bureau, 936 A.2d 1209, 1213 (Pa. Cmwlth. 2007); In re Tax Sale of Real Property Situate in Paint Twp., Somerset Cnty., 865 A.2d 1009, 1018 (Pa. Cmwlth. 2005); Thomas v. Montgomery Cnty. Tax Claim Bureau, 553 A.2d 1044, 1046 (Pa. Cmwlth. 1989)).
In Barylak, we stated, "those cases indicate that an affidavit of posting creates a 'presumption' that notice was properly posted. However, such an affidavit does not create a 'presumption,' which indicates burden shifting, but, rather, is substantive evidence." Id. at 417 n.5.
While Maschang sought to counter the Bureau's evidence with the testimony of her father, who claimed he did not see any posted notice on the properties during his visits to the properties, the trial court did not credit this testimony. Thus, as in Barylak, Maschang's evidence did not overcome the Bureau's evidence. Id. We may not disturb this determination on appeal.
Nevertheless, Maschang asserts the Bureau did not satisfy its burden of proving it properly posted the notices in a reasonable and conspicuous manner. She maintains the Bureau did not offer any evidence to explain why the constable did not post one notice on the house or other outbuildings located on Maschang's improved property, where the trees that were posted are located in relation to Maschang's properties and the road, and whether the trees that were posted are even located on Maschang's properties. Without such evidence, Maschang argues, the trial court could not properly conclude the Bureau met its burden of proving the postings were conspicuous, calculated to attract attention, and placed so as to maximize the public's opportunity to view the notices. We reject these assertions.
First, contrary to Maschang's assertions regarding the constable's decision not to post notices on one of the buildings on the improved property, this Court previously held: "The critical question under Section 602(e)(3) of the [Law] is not whether there was a better manner to post notice, but rather whether the manner of posting actually utilized was 'reasonable and likely to inform the taxpayer as well as the public at large of an intended real property sale.'" Tub Mill Farms, 14 A.3d at 184 (quoting Wiles v. Washington Cnty. Tax Claim Bureau, 972 A.2d 24, 28 (Pa. Cmwlth. 2009)). Simply put, the constable was not required to post the notices on the house or other outbuildings on Maschang's improved property. Indeed, we rejected the same argument in Cruder v. Westmoreland County Tax Claim Bureau, 861 A.2d 411 (Pa. Cmwlth. 2004), a case in which a deputy sheriff pounded a stake into the ground on the property and affixed the posting to the stake, stating:
[The taxpayer] argues ... that the posting was flawed because the deputy sheriff did not post the building on the property where [the taxpayer] worked or where his mother lived. This argument fails because Section 602 of the [Law] states simply that the property shall be posted; there is no requirement in Section 602 for posting a particular building. The posting procedure employed by the deputy sheriff was reasonable and likely to inform the public and [the taxpayer] of the impending sale. It is not necessary that the [tax claim bureau] choose the method most appropriate for [the taxpayer]; after all, the purpose of the posting is to inform the public. In re Upset Price Tax Sale of September 10, 1990, 606 A.2d 1255, 1258 (Pa. Cmwlth. 1992). ...Id. at 417-18 (emphasis in original) (footnote omitted).
In addition, we reject Maschang's assertion that the postings were deficient because the constable's testimony was not sufficiently specific as to the location on the properties where he posted the notices. Here, the constable offered the following testimony regarding his postings of the properties, which are located directly along Childs Park Road, a public road (with emphasis added):
Q: Mr. Hammond I am going to show you what has been marked as Respondent's Exhibit 6 which have already been identified by Ms. Garris as the Affidavits certifying that these two properties have been posted. Do those Affidavits have your name on them?
A: Yes.
Q: And did you in fact post these two properties on Childs Park Road?
A: Yes.
Q: Okay do you have a recollection of going out there and posting these properties?
A: Yes.
* * * *
Q: Okay let me see if I understand exactly what you did. Respondent's Exhibit, this Notice of Public Tax Sale?
A: Correct.
Q: On the back has, 'I certify and return that I posted'?
A: Correct.
Q: Okay now, tell us what exactly it was that you posted on these two properties.
A: The laminated portion of this-
Q: Front page?
A: Correct.
Q: Okay so--and where did you put [the notice] on each of the properties?
A: Usually I try to get the biggest tree, a foot round and I posted it about eye height so everyone could see it.
Q: Okay so you posted them on trees?
A: Correct.
Q: Eye height on trees?
A: Correct.
Q: Alright and you did that for both properties?N.T. at 37, 40-41; R.R. at 55a, 58a-59a. Further, the sworn affidavits of posting confirm the constable posted both properties. R.R. at 107b, 108b. Based on this credible evidence and the inferences reasonably deducible from it, the trial court could fairly conclude the postings were reasonable and likely to inform the public of the intended real property sales.
A: Correct.
Maschang also contends her actual notice of the tax sale, via mail, cannot excuse the Bureau's failure to meet its burden of proving it strictly complied with the Law's notice by posting requirement as the Bureau did not prove its posting method was sufficient to inform the general public of the upcoming tax sale. As explained above, however, we agree with the trial court that the Bureau did, in fact, prove its method of posting was sufficient to inform the public of the tax sale. As a result, Maschang's argument fails.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 3rd day of October, 2014, the order of the Court of Common Pleas of Pike County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge