Opinion
No. 881 C.D. 2013
12-12-2013
Olga Windier, Appellant v. Montgomery County Tax Claim Bureau
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Olga Windler (Windler) appeals the order of the Court of Common Pleas of Montgomery County (trial court) that denied Windler's petition raising objections and exceptions to upset tax sale.
Windler owned real property located at 922 Beverly Road, Abington Township, Rydal, Montgomery County, Pennsylvania (Property) at Parcel Number 30-00-04008-00-3. On April 9, 2010, the Montgomery County Tax Claim Bureau (Bureau) sent Windler a Notice of Return and Claim for Delinquent Taxes (2010 Notice) pursuant to Section 308 of the Real Estate Tax Sale Law (Law). The 2010 Notice contained the information required in Section 308 of the Law although the warning which states that the failure to pay the tax claim or the failure to take legal action to challenge the tax claim would result in the sale of the property without the owner's consent was not in capital letters and was not set out in a box as required by the Law.
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §5860.308.
On April 8, 2011, the Bureau sent Windler a second Notice of Return and Claim for Delinquent Taxes (2011 Notice). The 2011 Notice fully complied with Section 308 of the Law in both content and form.
On August 30, 2011, the Bureau sent Windler a Notice of Public Tax Sale. On September 21, 2011, the Bureau sold the Property at an Upset Tax Sale to Jacob Singer and Albert Martin (collectively, Purchasers).
On December 9, 2011, Windler filed a petition raising objections and exceptions to the upset tax sale and alleged:
6. The Tax Claim Bureau failed to give proper notice of the 2009 Tax Claim and thereby denied Petitioner [Windler] of her statutory right of redemption. . . .
7. Attached hereto; made a part hereof and marked Exhibit 'A' is the purported notice of claim which is materially defective of the requirements of 72 P.S. §5860.308(b) and all the more so for an owner suffering 80% bilateral optic neuropathy.
8. The Tax Claim Bureau further violated its notice obligations when it failed to cause a posting of the property with a valid notice of the 2009 Tax Claim.
9. The Tax Claim Bureau, through its agent, the Sheriff of Montgomery County failed to properly post the property with Notice of Sale as required by 72 P.S. §5860.602(e)(3).
10. Because Petitioner [Windler] recently learned of the Upset Tax Sale of its [sic] Property, Petitioner [Windler] has been unable to determine all of the potential deficiencies underlying this sale. The Petitioner [Windler] avers that the Tax Claim Bureau may have failed to follow other procedural requirements set forth in the act, 72 P.S. §5860.101 et seq., and reserves the right to supplement the present Petition upon further discovery of the procedures underlying the sale.Petition Raising Objections and Exceptions to Upset Tax Sale, December 9, 2011, Paragraph Nos. 6-10 and 12-16 at 2-3; Reproduced Record (R.R.) at 4-5.
12. A Tax Claim Bureau's failure to provide notice under the Act to the property owner is sufficient grounds to invalidate the sale. . . .
13. The notice provisions of the Act must be strictly complied with in order to guard against deprivation of property without due process. . . .
14. Petitioner [Windler] has been deprived of its [sic] rights to due process under the Fourteenth Amendment to the United States Constitution, the provisions of the Pennsylvania State Constitution and the laws of the Commonwealth of Pennsylvania.
15. Petitioner [Windler] remains ready, willing and able to pay the delinquent taxes on the Property.
16. Under all of the circumstances set forth above, Petitioner [Windler] respectfully requests that this Honorable Court sustain Petitioner's Objections and Exceptions set forth herein. Because the defect in [sic] not amendable, Petitioner [Windler] respectfully requests that this Honorable Court invalidate the sale, vacate any Confirmation Nisi entered after the present filing, and Order any deed issued there from to be stricken from the record, and allow Petitioner [Windler] to pay the delinquent taxes. (Citations omitted).
The Petition skips from Paragraph No. 10 to Paragraph No. 12 and does not contain a Paragraph No. 11.
On December 22, 2011, the Purchasers petitioned to intervene. The Purchasers also answered and denied the material allegations of Windler.
On April 16, 2012, the Bureau answered and denied the material allegations of Windler.
On April 23, 2013, following the submission of briefs, the trial court conducted a hearing. The Bureau submitted a packet of documents into evidence. Windler's counsel argued that the Bureau did not comply with the notice requirements of Section 308 of the Law because the required warning was not in capital letters and was not in a box. Notes of Testimony, April 23, 2013, (N.T.) at 5; R.R. at 30. The Bureau argued that the notice did comply with both the letter and spirit of Section 308. N.T. at 12; R.R. at 37. The Bureau also argued that its record of phone calls which was submitted as part of the packet of documents indicated that Windler spoke by telephone with a Bureau employee concerning the amount owed in taxes and what amount was needed to be paid to "come out of the upset sale." N.T. at 14; R.R. at 39. The Bureau argued that Windler had actual notice of the upset sale in advance and that any technical deficiencies with the written notice should not override the validity of the sale. N.T. at 14; R.R. at 39. The Purchasers also argued that Windler had actual notice of the upcoming sale. N.T. at 16; R.R. at 41.
By order dated April 24, 2013, the trial court denied Windler's petition:
In a tax sale case such as this, the burden of proving compliance with statutory notice provision of the Law rests with the tax bureau. . . . Section 308 of the Tax Sale Law sets forth the requirements for Notice of filing of returns and entry of claim:
Not later than the thirty-first day of July of each year, the bureau shall give only one notice of the return of said taxes and the entry of such claim in one envelope for each delinquent taxable property, by United States registered mail or United States certified mail, return receipt requested, postage prepaid, addressed to the owners at the same address listed on the form returned by the tax collector for taxes that are delinquent.
. . . .
Here, it is not disputed that Windler received actual notice of both the Notice Return and Claim forms as well as Notice of Public Sale. These notices were admitted into evidence at the hearing. . . . Petitioner [Windler] challenges only the form of the first notice, sent on April 9, 2010. Specifically Olga Windler claims the notice received is defective in form because the following language was not capitalized and contained in a box. . . .
Initially, it should be noted that the content of the statutory notice is in full compliance with the requirements of 72 P.S. §5860.308(b). This language was also conspicuously placed in the center of the Notice of Return and Claim notification. Although this text is capitalized in the example provided in the statute, nothing in the statute mandates capitalization and the Appellant [Windler] cites no authority for the proposition that the failure to capitalize the above language . . . is a legal basis to set aside a tax sale for the failure to pay delinquent taxes.
The Notice of Return and Claim form that is being challenged contained the statutorily required ten point typeface. Appellant [Windler] also contends that notice,
although proper in content and typeface, should be found defective and the tax sale vitiated because the warning language in the April 9, 2010 Notice of Return and Claim form was not contained in a box. The Appellant [Windler] cites no authority to establish that the failure to place the warning language in a box is a proper basis to set aside a tax sale.Trial Court Opinion, July 11, 2013, at 2-4.
Certainly any purported defect in the April 9, 2010 Notice of Return and Claim form was cured upon Petitioner's [Windler] receipt of the April 8, 2011 Notice of Return and Claim form which was compliant in both form and content, wherein the warning language was contained in a box and capitalized. More importantly, there is no legal authority to set aside a tax sale simply because the warning language was not contained in a box.
The Bureau's failure to capitalize and place a box around the warning language in the 2010 Notice of Return and Claim is not a legal basis to set aside a tax sale for delinquent taxes, and any defect in form was cured in the Notice sent the following year. The Petitioner [Windler] was notified of her delinquency in April 2010 and sent a second notification for the same tax delinquency in April 2011. She then received a Notice of Public Tax Sale in August of 2011. Despite being notified of her tax delinquency on three separate occasions, spanning sixteen months, Petitioner [Windler] refused to pay her taxes. (Citations omitted).
Windler contends that the trial court erred when it confirmed the upset sale where the notice of claim and return violated the plain language of Section 308 of the Law and that a defect in a Section 308 notice is not cured by a notice of sale pursuant to Section 602 of the Law, 72 P.S. §5860.602.
This Court's review is limited to determining whether the trial court abused its discretion, rendered a decision unsupported by evidence or clearly erred as a matter of law. Farro v. Tax Claim Bureau of Monroe County, 704 A.2d 1137 (Pa. Cmwlth. 1997).
Initially, Windler contends that the failure to comply with Section 308's statutory provision on the Notice of Return and Claim is a fatal defect. Windler asserts that the purpose of filing a Notice of Return and Claim is to give a taxpayer an opportunity either to take exception to the claim or to redeem the property within certain time limits set forth in the Law.
Section 308(b) of the Law, 72 P.S. §5860.308, provides:
Notice given in the manner provided by this section shall constitute proper service on the owner. A statement in the claim entered that due notice of the same was given shall be conclusive evidence that notice was given as required by law. The notice given in the manner provided by this section shall contain the following provision which shall be conspicuously placed upon said notice and set in at least 10-point type in a box as follows:
WARNING
'IF YOU FAIL TO PAY THIS TAX CLAIM OR FAIL TO TAKE LEGAL ACTION TO CHALLENGE THIS TAX CLAIM, YOUR PROPERTY WILL BE SOLD WITHOUT YOUR CONSENT AS PAYMENT FOR THESE TAXES. YOUR PROPERTY MAY BE SOLD FOR A SMALL FRACTION OF ITS FAIR MARKET VALUE. IF YOU PAY THIS TAX CLAIM BEFORE JULY 1, 19___, YOUR PROPERTY WILL NOT BE SOLD. IF YOU PAY THIS CLAIM AFTER JULY 1, 19___, BUT BEFORE ACTUAL SALE, YOUR
PROPERTY WILL NOT BE SOLD BUT WILL BE LISTED ON ADVERTISEMENTS FOR SUCH SALE. IF YOU HAVE ANY QUESTIONS, PLEASE CALL YOUR ATTORNEY, THE TAX CLAIM BUREAU AT THE FOLLOWING TELEPHONE NUMBER ___, OR THE COUNTY LAWYER REFERRAL SERVICE.'
The trial court determined there was no requirement in Section 308 of the Law that this warning be in capital letters and that there was no legal basis put forth by Windler to support setting aside a tax sale on the basis that the notice was not displayed in capital letters. Windler argues that the language in the Law was mandatory and the notice had to be printed in capital letters.
This Court disagrees with the trial court's determination that the content of the statutory notice complied with the requirements of Section 308 of the Law. Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. §1921(a), provides: "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions." The General Assembly displayed its intention when it capitalized the wording for the notice provision of Section 308(b) when it amended the Law to include the required notice language. Section 3 of the Act of July 10, 1980, P.L. 417. When the General Assembly subsequently amended the language contained in the notice in Section 13 of the Act of July 3, 1986, P.L. 351, it did not disturb the capitalization requirement of the notice. The General Assembly made a conscious decision to capitalize the notice provision in Section 308(b) of the Law. That legislative intent must not be ignored.
Further, there is a statutory requirement that the warning be contained in a box. The trial court determined that the failure to contain the warning in a box was not a proper basis to set aside the tax sale. This Court does not support disregarding the fact that the warning was not contained in a box as required by the Law.
The trial court, however, determined that any defects in the April 9, 2010, Notice were cured by the subsequent April 8, 2011, Notice of Return and Claim which complied in both form and content with Section 308. Further, Windler received the Notice of Public Tax Sale in August of 2011. On August 2, 2011, Windler engaged in a telephone conversation with a Bureau employee in which she was advised of the amount of payment to remove the property from the Upset Tax Sale.
In Donofrio v. Northampton County Tax Claim Bureau, 811 A.2d 1120 (Pa. Cmwlth. 2002), James E. Donofrio (Donofrio), a resident of New Jersey, owned property located at 325 Wood Street, in the city of Bethlehem, Northampton County, Pennsylvania. The property consisted of a single-family dwelling. Donofrio did not pay his real estate taxes on the property for 1999. The Northampton County Tax Claim Bureau (County) sent Donofrio notice in July of 2001, that it intended to sell the property at a public tax sale. The County had also posted a notice of tax sale on the property. At a September 10, 2001, tax sale, Charles Peterson, Anthony Malinowski, Deborah Williams, and Irvin Povlow purchased the property. The Northampton County Department of Fiscal Affairs notified Donofrio that the property had been sold and advised him of his right to file objections/exceptions. Donofrio petitioned to set aside the upset sale on the basis that he never resided at the property and the notice he received as well as the notice posted on the property were insufficient under the Law because the warnings contained in the notices were not in ten point type as required under Section 602(g) of the Law, 72 P.S. §5860.602(g). Section 602 is entitled "Notice of Sale." Donofrio, 811 A.2d at 1121.
Section 602(g) of the Law provides in pertinent part: "All notices required by this section other than the newspaper notice and notice in the legal journal shall contain the following provision which shall be conspicuously placed upon said notices and set in at least 10-point type in a box . . . ." --------
Before the Court of Common Pleas of Northampton County (common pleas court), Donofrio admitted that he received the notice of unpaid taxes, the notice of public tax sale, and the notice that the property had been sold. The County and a representative of the company that printed the notices acknowledged that the warning language in the notice sent directly to Donofrio was not printed in ten point type but rather in nine point type. The common pleas court denied and dismissed the petition. In its opinion, the common pleas court acknowledged that the warning language was not in ten point type. However, the common pleas court determined that because it was undisputed that Donofrio was aware of and had actual notice of the scheduled upset tax sale, the formal requirements of notice did not have to be met. Donofrio, 811 A.2d at 1121.
Donofrio appealed to this Court which affirmed:
[I]t is well established that notice provisions are to be strictly construed and that strict compliance with such
provisions is necessary to guard against deprivation of property without due process, and if any one is defective, the sale is void. . . . Nevertheless, we have previously held that the formal requirements of Section 602 need not be met when a taxpayer has actual notice of a tax delinquency and scheduled sale. . . .Donofrio, 811 A.2d at 1122.
In this case, at the hearing before the trial court, Donofrio admitted to receiving a notice from the Bureau dated June 26, 2000, concerning unpaid taxes on his property at 325 Vine Street in Bethlehem. Donofrio also admitted to receiving a notice of public tax sale from the Bureau [County] dated July 6, 2001. . . . This latter notice provided that the tax sale would occur on September 10, 2001, at 2:00 p.m. at the Northampton County Government Center in Easton, Pennsylvania. Based upon these admissions, we fail to see how the trial court erred in finding that Donofrio had actual notice of the impending tax sale. (Citations and footnote admitted).
The present controversy is similar to Donofrio, although Donofrio addressed Section 602 of the Law rather than Section 308. In both cases the tax bureau did not comply with the technical notice requirements whether it was presenting the warning in a box and capitalizing the notice as in the present case or the presentation of the warning in ten point type as in Donofrio. In fact, both sections contain the same language concerning the use of a "box" and ten point type. Also, in both cases, the taxpayer had actual knowledge of the tax sale before it took place. Windler received two subsequent notices which complied with the technical statutory requirements. As in Donofrio, Windler's actual notice of the tax delinquency and upset tax sale cures any technical notice defects. The trial court did not err when it reached the same conclusion.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 12th day of December, 2013, the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge