Opinion
No. 380 C.D. 2014
10-06-2014
Clayton Schulze, Appellant v. County of Erie, Bureau of Revenue and Tax Claim
OPINION NOT REPORTED MEMORANDUM OPINION
Clayton Schulze appeals pro se from the order of the Court of Common Pleas of Erie County, which denied his petition to set aside the upset tax sale of his property located at 11323 Route 6, Concord Township, Erie County. After review, we affirm.
It is not disputed that because Schulze failed to pay the assessed real estate taxes on the above-noted property in 2011 and 2012, his property was sold at an upset tax sale on September 30, 2013. Prior to the sale, on September 18, 2013, Schulze filed a motion for preliminary injunction seeking to enjoin the sale of the property. Schulze failed to follow Erie County Local Rule 1531, however, when he filed his motion, which prevented the motion from being heard by a judge until after the sale, whereupon it was dismissed as moot. Schulze also filed objections to the sale, averring that he was ready, willing and able to pay the delinquent taxes. He also averred that:
Local Rule 1531 provides:
(a) Upon filing a motion for preliminary injunction, a request for a judge assignment shall be made to the Office of Court Administration.
(b) The motion for preliminary injunction shall be presented to the assigned judge to obtain a date and time for a hearing and/or consideration of a request for immediate or ex parte relief.
The Defendant [Schulze] initially wanted to question the Legal Constitutionality of the sale of property in a Court of Law and filed a Request for a Preliminary Injunction on September 18 . . ., but apparently forgot to pay the taxes that same day which he thought he did, [sic] would have enabled him to do so according to law.Petition to Set Aside Upset Tax Sale Objections/Exceptions, ¶¶ 2, 3 (footnote added). In his petition, Schulze requested that a hearing be set in order that he may retain his property.
The Defendant being in excess of 65 years obviously forgot and request [sic] the Court to consider 2(b)(ii) Article VIII of the Constitution of Pennsylvania as one of the reasons why it was overlooked.
Article VIII, Section 2(b)(ii) of the Pennsylvania Constitution provides that the General Assembly may by law: "Establish as a class or classes of subjects of taxation the property or privileges of persons who, because of age, disability, infirmity or poverty are determined to be in need of tax exemption or of special tax provisions . . . ."
When asked by the judge why he believed the property sale should be set aside, Schulze, who appeared pro se, testified that he had "filed a rebuttal" with the "tax people" in 2010 and "they never answered, therefore they must agree to it." Notes of Testimony (N.T.) at 3. When asked for further detail, he indicated that he believed the taxes were "illegal, unconstitutional" and that "[he] sent letters, certified letters, to the tax people and told them that it's unconstitutional." Id. He again noted that no one ever responded to his letters [in 2010], leading him to believe "they" must have agreed with him. Id. According to Schulze, the failure to respond to his letters precluded the tax claim from becoming absolute or proven. Finally, in addition to appearing to quote various general statements attributable to courts or sources other than the courts of this Commonwealth, Schulze argued that he was not required to give the Attorney General notice of his constitutional challenge because he challenged his taxes in 2010 and rebutted the tax claim well before the claim became absolute. N.T. at 9. He further noted that rules cannot negate the Constitution.
For instance, Schulze argued: "Supreme Court ruling Norton v. Shelby County, 118 U.S. 425. Again, our government may tax the fruit, but shall never tax the tree." N.T. at 10.
Pennsylvania Rule of Civil Procedure No. 235 requires notice to the Attorney General if the constitutionality of an act is challenged in any court proceeding.
In response, counsel for the property buyers argued that the upset tax sale complied with the Real Estate Tax Sale Law (Law), Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101 - 5860.803, the Law has withstood constitutional challenge and any constitutional challenge raised by Schulze had not been properly raised due to the lack of notice to the Attorney General.
While Schulze had not challenged the Bureau of Revenue and Tax Claim's (Bureau) compliance with the Law, the Bureau adduced testimony and introduced documentary evidence demonstrating that the sale was procedurally proper. In denying the petition, common pleas initially concluded that the upset sale comported with the Law. The court further concluded that any potential constitutional challenges had been waived due to the failure to give the Attorney General notice, and that any constitutional challenge, even if not waived, could not be addressed in the context of a petition to set aside the upset tax sale. Finally, the court rejected as not credible any claim that Schulze had forgotten to pay his taxes due to age, noting that he failed to pay the taxes despite an ample opportunity to do so and chose instead to mount a "spurious" challenge in an attempt to avoid the tax liability. Opinion and order at 4. This appeal followed.
Citing Hill v. DiVecchio, 625 A.2d 642 (Pa. Super. 1993), in support.
Section 607(d) of the Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368, as amended, provides, in pertinent part, that: "Any objections or exceptions to such a sale may question the regularity or legality of the proceedings of the bureau in respect to such sale, but may not raise the legality of the taxes on which the sale was held . . . ." 72 P.S. § 5860.607(d) (emphasis added).
Schulze raises numerous arguments on appeal, most of them waived for a failure either to raise them in the first instance before common pleas or to present them in a manner allowing meaningful appellate review. We will address his arguments seriatim.
It is well settled that issues not raised before common pleas are waived for purposes of appellate review. Pa. R.A.P. 302(a); Est. of Marra, Sr. v. Tax Claim Bur., 95 A.3d 951, 956 (Pa. Cmwlth. 2014).
First, Schulze contends that common pleas showed extreme bias against him. In making this assertion, he fails to identify any particular action by the judge demonstrating bias and our review of the record reveals none. The trial judge patiently allowed Schulze to present testimony and argument despite the fact that much of his argument and cited legal authority were irrelevant to the issues before the court. Thus, we conclude that this assertion is completely lacking in merit.
Next, Schulze asserts that the tax claims were not absolute, rendering the sale improper. In rejecting this argument, we first observe that this defense was not raised in the petition to set aside the upset sale and no evidence to support the defense was offered at the hearing. Schulze only vaguely referred to filing or sending rebuttal letters to "tax people" in 2010 objecting to the legality of the taxes imposed. Second, substantively the argument lacks merit. Sending letters to various county officials, such as the director of the tax claim bureau or the records officer, requesting the statutory authority under which taxes have been levied, is insufficient as a matter of law to challenge (appeal) either the assessment of a tax or the constitutionality of a tax statute. Such challenges may be accomplished only with an assessment appeal under the Consolidated County Assessment Law, 53 Pa. C.S. §§ 8801-8868, or through an action in equity. See generally Brown v. Montgomery Cnty., 918 A.2d 802 (Pa. Cmwlth. 2007) (noting that while local tax agency lacks authority to decide constitutionality of tax statute, the validity of the statute may be raised on appeal); Borough of Green Tree v. Bd. of Prop Assessments, Appeals & Review, 328 A.2d 819 (Pa. 1974) (discussing when it is appropriate to challenge constitutionality of taxing statute in action in equity rather than through statutory appeal procedure).
For instance, see Schulze's letter dated February 12, 2011, to director of the Bureau, wherein he acknowledged receiving notice that he had failed to pay taxes. In that letter, Schulze requests the authority for the taxes imposed and writes that a failure to respond to his request within 15 days "will be deemed on the public and private record as a confession of judgment that I in fact do not have a lawful obligation to pay such taxes." Exhibit 2 to Schulze's reply to Bureau's answer and new matter to petition to set aside tax sale.
There is no argument that the underlying tax assessments were ever appealed.
Next, Schulze summarily contends that he filed exceptions to the tax claim within the meaning of Section 314(b) of the Law, 72 P.S. § 5860.314(b) (providing for the filing of exceptions to a tax claim before it becomes absolute), and was denied a hearing, which violated his right to due process. Again, this defense was not raised in the petition to set aside or before common pleas and, therefore, it has been waived. Moreover, there is simply no record evidence of any exceptions having been filed.
Finally, Schulze argues that he was denied his constitutional right to a trial by jury. Assuming arguendo that Schulze was entitled to a jury trial on his petition to set aside the upset sale, our review of the record reveals that any such right was waived by his failure to demand one. See Dream Pools of Pa., Inc. v. Baehr, 474 A.2d 1131 (Pa. Super. 1984) (noting that failure to demand jury trial results in waiver of the right). Specifically, we have examined the various papers filed in connection with the petition as well as the hearing transcript and no demand for a jury trial is evident. Moreover, Schulze has not directed our attention to the place in the record where the right was asserted and preserved in contravention to Rule of Appellate Procedure 2117(c) (pertaining to requirement that statement of case in appellate brief specify where issue was raised and preserved below).
A good discussion of whether a statutory scheme includes the right to a trial by jury is found in Fazio v. Guardian Life Insurance Co. of America, 62 A.3d 396 (Pa. Super. 2012), appeal denied, 72 A.3d 604 (Pa. 2013).
Based on the foregoing, the order of the court of common pleas is affirmed. PER CURIAM ORDER
The Bureau has filed a motion to dismiss this appeal due to the inadequate reproduced record filed by Schulze. While we agree that the reproduced record was clearly deficient and that a more comprehensive record would have aided appellate review, the Court was able to conduct its review by referencing the original record. Accordingly, the motion is denied. --------
AND NOW, this 6th day of October, 2014, the order of the Court of Common Pleas of Erie County in the above-captioned matter is hereby affirmed. Further, the motion to dismiss appeal is DENIED.
While the denial of a preliminary injunction is immediately appealable, see Pennsylvania Rule of Appellate Procedure 311(a)(4), there is no indication in the record that Schulze appealed the dismissal of his motion.