Opinion
No. 2014 C.D. 2012
08-01-2013
Albert Serrino v. County of Luzerne Tax Claim Bureau Appeal of: Christopher Puma
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Christopher Puma (Purchaser) appeals from the September 28, 2012 Order of the Court of Common Pleas of Luzerne County (trial court), which granted Albert Serrino's (Owner) Petition to Set Aside Tax Sale of Real Estate (Petition to Set Aside) of property located at 858 Sans Souci Parkway (Property) and declared the September 23, 2010 judicial sale of the Property null and void. The trial court further directed the Luzerne County Tax Claim Bureau (Bureau) to accept payment of all taxes due and owing from Owner.
The issue presented in this appeal is whether the trial court erred by finding that Owner was not properly served with the Petition to Sell Tax Delinquent Property Free and Clear of all Liens and Encumbrances (Petition to Sell) and the Rule to Show Cause why the Property should not be sold at judicial sale. Purchaser argues that the trial court erred by granting Owner's Petition to Set Aside because the evidence clearly shows that the Bureau complied with the Real Estate Tax Sale Law (Law) and made proper service of the Petition to Sell and Rule to Show Cause upon Donna Weaver, the individual whom Owner specifically authorized to accept service on his behalf. Discerning no error, we affirm.
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.610. Section 610 of the Real Estate Tax Sale Law permits a tax claim bureau, in cases where the upset price is not bid at an upset tax sale, to petition the court of common pleas for judicial sale of the property. Upon the filing of such petition, the court of common pleas "shall grant a rule upon all parties thus shown to be interested to appear and show cause why a decree should not be made that said property be sold, freed and cleared of their respective tax and municipal claims, liens, mortgages, charges and estates, except separately taxed ground rents." Id. "The rule shall be made returnable in not more than thirty (30) days from the date the petition was presented or as otherwise determined by the court." Id.
Purchaser also presents, in the Statement of Questions Involved section of his brief, the issue of whether the Bureau was also required to make separate personal service upon Owner at his residence after Owner authorized Ms. Weaver to accept service of the Petition to Sell and Rule to Show Cause and the Deputy Sheriff delivered the documents to Ms. Weaver. Because of our disposition, we do not need to reach this issue. However, we note that Purchaser does not set forth any argument in his brief with respect to this issue; therefore, it was waived. See Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 2119(a) (requiring the argument section of a party's brief "be divided into as many parts as there are questions to be argued" and include "such discussion and citation of authorities as are deemed pertinent"); City of Philadelphia v. Berman, 863 A.2d 156, 161 n.11 (Pa. Cmwlth. 2004) (holding that a party's failure to develop an issue in the argument section of his or her brief constitutes waiver of the issue).
The facts in this matter are as follows. The Bureau initially exposed the Property to an upset tax sale on September 16, 2009, based on Owner's failure to pay the 2007, 2008, and 2009 real estate taxes in the total amount of $11,976.34; however, the Bureau was unable to obtain a bid sufficient to pay the upset price. (Petition to Sell at 1-2, R.R. at 03-04.) Consequently, on July 23, 2010, the Bureau filed the Petition to Sell with the trial court pursuant to Section 610 of the Law. By order dated July 23, 2010, the trial court issued the Rule to Show Cause for all parties in interest to appear and show cause why the Property should not be sold free and clear. (Order, July 23, 2010, R.R. at 011.) The rule was returnable on August 23, 2010 and a hearing was scheduled for 11:00 a.m. on August 23, 2010. (Order, July 23, 2010, R.R. at 011.) The return of service shows that, on August 10, 2010 at 08:16, the Luzerne County Deputy Sheriff (Deputy Sheriff) served the Petition to Sell and the Rule to Show Cause on Owner by handing a copy, and making the contents known, to Donna Weaver at Sans Souci Pkwy, Hanover Twp, PA 18706. (Return of Service, R.R. at 012.) On August 23, 2010, the trial court, "being satisfied that service of the rules to show cause have been made upon all parties of interest," entered an order directing that the Property be sold at a judicial sale on September 23, 2010, free and clear to the highest bidder, and that the purchaser at such sale shall take and have absolute title to the Property. (Order for Judicial Sale, August 23, 2010, R.R. at 013-014.) The Property was then sold at judicial sale on September 23, 2010. It is undisputed that Purchaser was the successful bidder at the judicial sale.
On September 27, 2010, Owner filed the instant Petition to Set Aside alleging, inter alia, that proper notice and/or service of the Petition to Sell and Rule to Show Cause were not received by Owner and/or all interested parties as required by the Law. (Petition to Set Aside at 1, R.R. at 015.) An evidentiary hearing on the Petition to Set Aside was held by the trial court on September 28, 2012. The trial court heard testimony on the primary issue of whether Owner was properly served with or had proper legal notice of the Petition to Sell and Rule to Show Cause.
The trial court originally entered an order on November 15, 2010 granting Owner's Petition to Set Aside and declaring the September 23, 2010 judicial sale of the Property null and void. Purchaser appealed to this Court arguing that he did not have proper service of Owner's Petition to Set Aside and the Rule to Show Cause. Upon review, this Court vacated the November 15, 2010 order and remanded this matter for an evidentiary hearing as to whether Purchaser was properly served and, if not, to conduct a new hearing, with notice to Purchaser, on the merits of Owner's Petition to Set Aside. See Serrino v. County of Luzerne Tax Claim Bureau (Pa. Cmwlth., No. 2683 C.D. 2010, filed December 28, 2011). On remand, the trial court determined that Purchaser did not receive proper notice and, as a result, conducted the September 28, 2012 hearing on Owner's Petition to Set Aside.
The record shows that Owner owned Elegant Cleaners, which is located on the Property, until August 6, 2010. (Hr'g Tr. at 58-59, R.R. at 050.) However, Owner agreed to be available at the Property to assist the new owner in taking over Elegant Cleaners for 20 hours per week in the two weeks immediately following the sale. (Hr'g Tr. at 59, 85-87, R.R. at 050, 056-057.) Owner testified that, as a result of this arrangement, he was present at Elegant Cleaners at least 10 times between August 10, 2010 and September 23, 2010, the date of the sale of the Property. (Hr'g Tr. at 88, R.R. at 057.)
Prior to the sale of Elegant Cleaners, Ms. Weaver, general manager of Elegant Cleaners, and Owner had an arrangement whereby any mail delivered to Elegant Cleaners for Owner was accepted by Ms. Weaver and then placed in a bin for Owner to collect. (Hr'g Tr. at 40-42, R.R. at 045-046.) When legal documents arrived, Ms. Weaver would call Owner first and inquire as to whether she should accept the documents. (Hr'g Tr. at 41-42, R.R. at 045-046.) Owner would then advise Ms. Weaver to accept the legal documents, which she would place in the bin with Owner's other mail. (Hr'g Tr. at 41-42, R.R. at 045-046.) Owner would then collect the legal documents from the bin. (Hr'g Tr. at 42, R.R. at 046.) Owner acknowledged that this was the arrangement. (Hr'g Tr. at 62-63, R.R. at 051.) This is the process that took place on August 10, 2010 when the Deputy Sheriff arrived at Elegant Cleaners to serve Owner with the Petition to Sell and the Rule to Show Cause.
Ms. Weaver testified that the Deputy Sheriff informed her that he was serving papers and asked if she usually signed. (Hr'g Tr. at 36-37, R.R. at 044.) She replied "yes" but that she would have to call Owner first. (Hr'g Tr. at 37, R.R. at 044.) The Deputy Sheriff did not ask Ms. Weaver for any identification. (Hr'g Tr. at 37, R.R. at 044.) Ms. Weaver called Owner, "told him there was a guy there with a tax notice," asked him if she should sign, and Owner said "yes" that she could sign for the tax notice. (Hr'g Tr. at 36-37, R.R. at 044.) Ms. Weaver testified that she knew it was a tax notice by something written in the corner and that, at the time, she believed Owner was still the proprietor of Elegant Cleaners although she was not sure if the notice was addressed to Owner or Elegant Cleaners. (Hr'g Tr. at 36-38, R.R. at 044-045.) Ms. Weaver testified further that she had no doubt that Owner picked up the tax notice between August 10, 2010 and September 23, 2010. (Hr'g Tr. at 42, R.R. at 046.)
Based on the testimony of Ms. Weaver and Owner the trial court found as follows:
It is uncontroverted that on August 10th, 2010 a deputy sheriff from Luzerne County went to the business premises known as 858 Sans Souci Parkway in Hanover Township. On that morning, the deputy sheriff encountered one Donna Weaver who was an employee at the Elegant Cleaners business and presented documents to Miss Weaver addressed to [Owner], purporting to effect service on [Owner] with respect to an order of court dated July 23rd, 2010 indicating that there would be a rule return date on August 23, 2010 at 11:00 a.m. with respect to a petition to sell delinquent property free and clear of all liens and encumbrances the subject being denoted in the caption of the petition as being owned by [Owner].(Hr'g Tr. at 139-40, R.R. at 070.) Notwithstanding the foregoing findings, the trial court reviewed the status of the business relationship between Ms. Weaver and Owner and determined that, on August 10, 2010, there was no formal business relationship between Ms. Weaver and Owner because Owner had sold Elegant Cleaners four days earlier. (Hr'g Tr. at 143, R.R. at 071.) The trial court found that there was a casual arrangement where Ms. Weaver would facilitate the transmission of Owner's mail delivered to Elegant Cleaners by placing such mail in a bin from which Owner would later retrieve his mail. (Hr'g Tr. at 143-44, R.R. at 071.) However, despite Owner's acknowledgment that he had such an arrangement for retrieving his mail, the trial court concluded that "[t]aking [a] snapshot as relationships existed on August 10th, 2010, this did not constitute a basis upon which legal service was effectuated on [Owner] with respect to the impending tax sale." (Hr'g Tr. at 144, 146, R.R. at 071-072.) The trial court stated that it was "evident that there was an opportunity for [Owner]" to retrieve his mail on the business premises during the time period between August 10, 2010 and the sale of the Property, but it was also "evident that as it related to any legal documents that [Owner] would turn [the] same over to his attorneys." (Hr'g Tr. at 147, R.R. at 072.)
The undisputed facts indicate that Miss Weaver contacted [Owner] by phone and inquired whether she was authorized to sign with regard to the documents that the [S]heriff had presented. It is likewise undisputed that [Owner] authorized Miss Weaver to sign for the subject documents.
The trial court also found that there was no attempt to serve Owner at his personal residence, even though the Bureau had Owner's residential address on file. (Hr'g Tr. at 144-45, R.R. at 071.) The trial court concluded that, based upon Owner's unrefuted testimony, he did not have express notice of the impending judicial tax sale. Finally, the trial court found that the facts and circumstances established by the testimony and evidence did not rise to the level that would enable it to find implied actual knowledge on the part of Owner. (Hr'g Tr. at 151, R.R. at 073.) Accordingly, the trial court granted Owner's Petition to Set Aside and declared the September 23, 2010 judicial sale of the Property null and void. Purchaser now appeals to this Court.
"Our standard of review in tax sale cases is limited to determining whether the trial court abused its discretion, rendered a decision with a lack of supporting evidence, or clearly erred as a matter of law." Sabbeth v. Tax Claim Bureau of Fulton County, 714 A.2d 514, 516 n.3 (Pa. Cmwlth. 1998).
Purchaser argues that the trial court specifically found that the undisputed facts show that Ms. Weaver contacted Owner by phone and received his authorization to accept service of the Petition to Sell and Rule to Show Cause from the Deputy Sheriff. According to Purchaser, once the trial court made this finding, the question of the propriety of service was conclusively answered in favor of the Bureau and Purchaser. Purchaser asserts that Pennsylvania Rule of Civil Procedure 402(a), Pa. R.C.P. No. 402(a), makes it clear that the fact that service was not made to Owner personally does not invalidate the sale as there is no requirement that the defendant of a lawsuit be served personally. However, Purchaser maintains that the trial court erroneously found that, despite Owner's authorization for Ms. Weaver to accept service, service was not proper because Owner had sold Elegant Cleaners on August 6, 2010 and because Ms. Weaver was employed previously by Owner's business and not Owner personally. Purchaser contends that neither of these facts trumps the fact that Owner specifically authorized Ms. Weaver to accept service of the tax sale documents on his behalf. Purchaser argues that service upon an authorized agent is proper service in Pennsylvania, no matter where the agent is served or regardless of whether the person accepting service is the principal's employee.
The Bureau argues in support of Purchaser's position and asserts that service was properly made upon Owner when Ms. Weaver accepted service of the Petition to Sell and Rule to Show Cause on his behalf after Owner expressly authorized Weaver, as the person in charge of Owner's usual place of business, to do so. The Bureau points out that Rule 402(a)(2)(iii) permits service of original process by handing a copy "at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof." Pa. R.C.P. No. 402(a)(2)(iii). The Bureau contends that it is entirely irrelevant that Ms. Weaver was not Owner's personal employee because all that is required by Rule 402 for effective service of process upon a person in charge at a business is "a sufficient connection between the person served and the defendant to demonstrate that service was reasonably calculated to give the defendant notice of the action against it." Cintas Corporation v. Lee's Cleaning Services, Inc., 549 Pa. 84, 96, 700 A.2d 915, 920 (1997); see also Simmons v. Delaware County Tax Claim Bureau, 796 A.2d 400, 405 (Pa. Cmwlth. 2002) (quoting Cintas, 549 Pa. at 96, 700 A.2d at 920).
The Bureau argues further that, although Owner had sold Elegant Cleaners on August 6, 2010, it remained his usual place of business. Finally, as the general manager, Ms. Weaver was indisputably the person in charge upon whom service could be effected and the trial court found that Owner specifically authorized Ms. Weaver to accept service on his behalf. (Hr'g Tr. at 140, R.R. at 070.) The Bureau argues that Owner should not be permitted to avoid valid service of process by taking the position that service upon Ms. Weaver was improper after he had expressly authorized her to accept service.
In response, Owner, relying upon cases pertaining to upset tax sales, contends that the Bureau failed to prove by clear and convincing evidence that it complied with the Law's notice requirements. Owner asserts that, because he was not served at his personal residence, whether proper service was made must be analyzed pursuant to Rule 402(a)(2)(iii), which controls service at an office or place of business. Owner contends that the evidence does not establish that Ms. Weaver was Owner's agent and the Deputy Sheriff's return fails to document such a relationship. As found by the trial court, the Bureau's records were void of any relationship between Ms. Weaver and Owner to evidence her authority to accept service. Thus, Owner argues, based on the record, the trial court correctly concluded that there was no basis on which legal service was effectuated on Owner. Finally, Owner contends that Purchaser's view of the evidence, concluding that once Ms. Weaver called Owner and received authorization to sign for the documents, completely ignores the need for an owner to have real knowledge of the pending tax sale of his property and the requirement that there be strict compliance with the Law's notice provisions.
As noted, Section 610 of the Law provides that the rule to show cause "shall be made returnable in not more than thirty (30) days from the date the petition was presented or as otherwise determined by the court." 72 P.S. § 5860.610. Section 611 of the Law provides that "[s]ervice of the rule shall be made in the same manner as writs of scire facias are served in this Commonwealth." 72 P.S. § 5860.611. Rule 402(a) of the Pennsylvania Rules of Civil Procedure sets forth the manner in which original process may be served and provides:
As noted by this Court:
"Scire facias" means literally "you are to make known, show cause." Black's Law Dictionary 1347 (7th ed. 1999). "A writ of scire facias is a mandate to the sheriff, which recites the occasion upon which it issues, which directs the sheriff to make known to the parties named in the writ that they must appear before the court on a given day, and which requires the defendant to appear and show cause why the plaintiff should not be permitted to take some step, usually to have advantage of a public record. The object of the writ of scire facias is ordinarily to ascertain the sum due on a lien of record and to give the defendant an opportunity to show cause why the plaintiff should not have execution. The writ of scire facias serves the dual purposes of a summons and a complaint, and a writ of scire facias is personal process, but the detailed requirements of a pleading are not applied to the writ of scire facias." 18 Standard Pennsylvania Practice 2d § 102:10 (1983) (footnotes omitted).
(a) Original process may be servedPa. R.C.P. No. 402(a). In addition, it is the duty of the process server to complete a return of original service that sets forth "the date, time, place and manner of service, the identity of the person served and any other facts necessary for the court to determine whether proper service has been made." Rule 405(b) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 405(b). "[T]he validity of the service is not presumed; the return of service itself must demonstrate that the service was made in conformity with the Pennsylvania Rules of Civil Procedure." Township of Lycoming v. Shannon, 780 A.2d 835, 838 (Pa. Cmwlth. 2001). Thus, it is essential that the return of service contain all of the necessary information lest it be rendered fatally defective. As stated by this Court:
(1) by handing a copy to the defendant; or
(2) by handing a copy
(i) at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or
(ii) at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides; or
(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.
Service of process is the mechanism by which a court obtains jurisdiction over a defendant. The rules relating to service of process must be strictly followed. Proper service is not presumed; rather, the return of service itself must demonstrate that the service was made in conformity with the Pennsylvania Rules of Civil Procedure. In the absence of valid service, a court lacks personal jurisdiction over the party and is powerless to enter judgment against that party.City of Philadelphia v. Berman, 863 A.2d 156, 160 (Pa. Cmwlth. 2004) (citations and footnote omitted).
In this matter, the return of service is facially defective. The return reports that the Deputy Sheriff served Owner with the Petition to Sell and Rule to Show Cause by handing the process to "Donna Weaver" at "Sans Souci Pkwy" and "making known to her the contents thereof." (Return of Service, R.R. at 012.) The return of service contains no explanation whatsoever as to Ms. Weaver's relationship to Owner and why service on her was valid. The return also does not include an "Acceptance of Service" form as set forth in Rule 402(b), which proves that "[i]n lieu of service under this rule, the defendant or his authorized agent may accept service of original process by filing a separate document." Pa. R.C.P. No. 402(b). Accordingly, the return of service does not demonstrate that service of the Rule to Show Cause and the Petition to Sell was made in conformity with the Rules of Civil Procedure when the trial court issued the August 23, 2010 order directing that the Property be sold at judicial sale on September 23, 2010.
Moreover, while Ms. Weaver testified that she "signed" for a tax notice after calling Owner, the trial court properly determined that the Bureau failed to prove that service upon Ms. Weaver of the Petition to Sell and Rule to Show Cause complied with Rule 402(a)(2)(iii). Rule 402(a)(2)(iii) permits service of original process by handing a copy "at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof." Pa. R.C.P. No. 402(a)(2)(iii). Effective service of process upon a person in charge at a business is "a sufficient connection between the person served and the defendant to demonstrate that service was reasonably calculated to give the defendant notice of the action against it." Cintas, 549 Pa. at 96, 700 at 920; see also Simmons, 796 A.2d at 405 (quoting Cintas).
As correctly determined by the trial court, there was no formal business relationship between Ms. Weaver and Owner on August 10, 2010 because Owner had sold Elegant Cleaners four days earlier. (Hr'g Tr. at 143, R.R. at 071.) Ms. Weaver's customary acceptance of Owner's mail, and her erroneous belief that Owner still owned Elegant Cleaners on August 10, 2010, does not change the fact that Elegant Cleaners was no longer Owner's usual place of business. In addition, Ms. Weaver's testimony shows that she did not believe she had the authority to accept service of legal documents on behalf of Owner as his agent or the person in charge because she informed the Deputy Sheriff that she had to telephone Owner first. Ms. Weaver's testimony also shows that, contrary to the return of service, the Deputy Sheriff did not make the contents of the documents he was attempting to serve known to her and that she in turn did not specifically inform Owner that the Sheriff was attempting to serve the Petition to Sell and Rule to Show Cause. Instead, Ms. Weaver testified that she informed Owner that "a guy" was there with what Ms. Weaver believed was a tax notice. Based upon Ms. Weaver's testimony, Owner was not aware that she was accepting service on his behalf of the Petition to Sell and Rule to Show Cause. As such, there is no evidence that Owner had actual knowledge that he had been served with the Petition to Sell or the Rule to Show Cause or that he waived his right to personal service as required by the Law and the Rules of Civil Procedure.
Accordingly, we conclude that the trial court did not err by finding that Owner did not receive proper legal notice, in accordance with the Law, of the Rule to Show Cause and the Petition to Sell the subject Property at the September 23, 2010 judicial sale. Therefore, the trial court's September 28, 2012 Order granting Owner's Petition to Set Aside and declaring the September 23, 2010 judicial sale of the Property null and void, is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, August 1, 2013, the September 28, 2012 Order of the Court of Common Pleas of Luzerne County granting Albert Serrino's Petition to Set Aside Tax Sale of Real Estate of property located at 858 Sans Souci Parkway (Property) and declaring the September 23, 2010 judicial sale of the Property null and void, is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
In re SALE NO. 10, 801 A.2d 1280, 1284 n.6 (Pa. Cmwlth. 2002).