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Home My WebLink About02-5973 DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW 0;) .';Q7 3 ACTION TO QUIET TITLE PARKTON ENTERPRISES, INC. Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUR WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 r F:UE COpy FFOM REGOf{D I "l r;:"h'~ :~1t:it'Vl"\.\+lt;,,'!'r.-'}.~"~~ I ~""--""lrc' ~,nt,~... ,...~..} f'I1U ~,:)~t" ,.".....'.1....-,., '!., "'i. .,'"d~ - ,h.>, '-i.;.:.i..'J ",""'-:'l :; 'b.cJ(U : r;;.a saal ofs.~ Co.~1l1 at Carlisle. Pa. ::,js aa~ "- Prothonotary DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, Plaintiffs vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW 0) - S'17~?j PARKTON ENTERPRISES, INC. Defendant ACTION TO QUIET TITLE COMPLAINT IN QUIET TITLE AND NOW, come the Plaintiffs, David A. Krulac and Diane E. Krulac, husband and wife, by their attorney, Dale F. Shughart, Jr., of their Complaint: Esquire and make the following the following averments in support 1. The Plaintiffs, David A. Krulac and Diane E. Krulac, husband and wife, are adult individuals residing at P. O. Box 1064, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. The Defendant is Parkton Enterprises, Inc., a business entity incorporated under the laws of the State of Maryland with its principal place of business located at 11350 McCormick Road, Suite 200, Hunt Valley, Maryland, 21031. 3. The Plaintiffs are the record title holders of a parcel of land, together with improvements thereon erected, with a mailing address of 705 Erford Road, Camp Hill, PA 17011 (hereinafter "The Park, which Plan is recorded in the Office of the Recorder of Deeds Premises"), known as Lot No. 2Y, Block lilli, in Plan NO.8, Ridley in and for Cumberland County, Pennsylvania, in Plan Book 16, Page 254, Page 3826. dated December 2, 2002 and recorded December 2, 2002 in Deed Book 49, by virtue of a Deed from Tax Claim Bureau of Cumberland County A copy of said Deed is attached hereto, incorporated herein, and marked as Exhibit "A". follows: 4. The metes and bounds description of the tract is as ALL THAT CERTAIN tract of parcel of land situate in Pennsboro Township, Cumberland County, Pennsylvania, particularly bounded and described as follows, to wit: East more BEGINNING at a point on the Northerly line of Erford Road (East), which point is 84.06 feet East of the Northeasterly line between Lot Nos. 1 and 2Y, Block "I", on the hereinafter mentioned Plan of Lots; thence along said dividing line, North 2 degrees 10 minutes West, 150 feet to a point; thence North 87 degrees 50 minutes East 37.5 feet to a point at dividing line between Lot Nos. 2X and 2Y, Block "I", on said Plan; thence along said dividing line and through the center of a partition wall and beyond, South 02 degrees 10 minutes East, 150 feet to a point on the Northerly line of Erford Road (East), aforesaid; thence along same, South 87 degrees 50 minutes West, 37.5 feet to a point, the Place of BEGINNING. BEING Lot No. 2Y, Block "I", in Plan No.8, Ridley Park, which Plan is recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 16, Page 49. HAVING thereon erected a dwelling house known and numbered as 705 Erford Road, Camp Hill, PA 17011 and being Cumberland County Tax Parcel #09-16-1050-16C. 5. On December 29, 1998 Avstar Mortgage Corporation granted and cOnveyed The Premises to Orlando Torres, Jr. and Anailda Malave 378. which Deed is recorded in Cumberland County Deed Book 192, Page Bank, FSB, in the sum of $63,750 which mortgage is dated 6. The Deed was the subject to a Mortgage to Eastern Savings Book 1511, Page 355. December 29, 1998 and recorded in Cumberland County Mortgage -2- 7. On or about June 30, 2000, Eastern Savings Bank, FSB, filed a mortgage foreclose action against Torres and Malave in proceedings docketed to 2000-4692 in the Court of Cornmon Pleas of Cumberland County, Pennsylvania. Judgment was entered in favor of Eastern State Bank, FSB, on January 30, 2001 by default. 8. It is believed and therefore averred that the requirements of the aforesaid mortgage loan to Torres and Malave required that tax bills be mailed to Eastern Savings Bank for payment. Nevertheless, Eastern Savings Bank failed to make payment of the county, township and school district tax for the Year 2000. 9. The Cumberland County Tax Claim Bureau served all required Notices pursuant to Section 602 of the Real Estate Tax Sale Law, 72 P.S. ~5860.602 upon Torres and Malave more than thirty (30) days prior to the date of the scheduled Tax Upset Sale, September 26, 2002. 10. On August 1, 2002, Eastern Savings Bank, FSB, assigned the aforementioned mortgage unto the Defendant, Parkton Enterprises, Inc., the Defendant herein, which Assignment of Mortgage was recorded in Cumberland County Miscellaneous Book 690, Page 1425 on September 18, 2002. 11. On September 4, 2002, Defendant purchased the property at Sheriff's Sale. R. Thomas Kline, Sheriff of Cumberland County, granted and cOnveyed The Premises to the Defendant by Sheriff's Deed dated September 24, 2002 and recorded in Cumberland County Deed Book 253, Page 3573 on September 25, 2002. -3- 12. Following the Sheriff's Sale on September 4, 2002, purchaser, Parkton Enterprises, Inc., was provided written notice from the Cumberland County Sheriff that back taxes were owed to the Cumberland County Tax Claim Bureau. Defendant knew that the lien for back taxes returned to the Tax Claim Bureau was not divested by the Sheriff's Sale. Nevertheless, Parkton failed to pay the back taxes due at the Tax Claim Bureau. 13. The Premises were then sold to the Plaintiffs by the Cumberland County Tax Claim Bureau at Tax Upset Sale on September 26, 2002, which Deed is previously attached hereto and referenced as Plaintiff's Exhibit "A". 14. On October 9, 2002, Defendant Parkton Enterprises, Inc. was mailed a Notice by the Cumberland County Tax Claim Bureau pursuant to Section 607(2) of the Real Estate Tax Sale Law, 72 P.S. 5860.607, by certified mail, which was received by the Defendant, copies of which Notice and signed return receipt card are attached hereto, made a part hereof, and marked Exhibit "B". 15. Defendant did not file Objections to the Tax Sale or file a Petition to Set Aside the Sale within the statutorily prescribed time limits. 16. Neither the Plaintiff nor the Defendants are in actual physical possession of the premises. The prior owners of the premises, Orlando Torres, Jr. and Anailda Malave are still in possession of the premises as confirmed by an action in ejectment -4- filed in the Court of Common Pleas of Cumberland County, Pennsylvania against Torres and Malave by the Plaintiff herein on November 12, 2002 to No. 2002-5473. Further, Plaintiff will file a Petition to Intervene in the Ejectment Action filed by the Defendant herein against Torres and Malave immediately after filing this Complaint. 17. The within action is authorized by Pa.R.C.p. 1061(b) (4). 18. The purchase of the subject property at Sheriff's Sale by the first mortgage holder, Park ton Enterprises, divested all liens of record, including the mortgage of Torres and Malave to Parkton ( except those for past due taxes returned to the Tax Claim Bureau, as aforesaid) resulting in a satisfaction of the aforesaid mortgage of Torres and Malave to Parkton Enterprises, by operation of law. 19. By virtue of the aforesaid Upset Tax Sale Deed, Plaintiffs are the owners in fee simple, free and clear of all liens and encumbrances, except building and use conditions and restrictions and utility easements of record. 20. To date Defendant has not satisfied the aforesaid mortgage from Torres and Malave Upon which it foreclosed and received a Sheriff's Deed. 21. The aforesaid mortgage remains a cloud on Plaintiff's title. 22. Defendant has a legal obligation to satisfy the aforesaid mortgage. -5- to enter jUdgment in favor of the Plaintiffs, as follows: WHEREFORE, Plaintiffs respectfully pray Your Honorable Court mortgage from Orlando Torres, Jr. and Anailda Malave dated 1. To order the Recorder of Deeds to satisfy of record the Book 1511, Page 355 upon entry of jUdgment on such Order; December 29, 1998 and recorded in Cumberland County Mortgage the Plaintiffs set forth herein; and Erford Road, Camp Hill, PA 17011 inconsistent with the claims of claim or interest in or to any part of The Premises known as 705 2. To order Defendant be forever barred from asserting a 3. To grant such further relief as may be just and equitable. Respectfully rj)c~ Dale F. Shugha , ur. Supreme Court I.D. 19373 35 East High Street, Suite 203 Carlisle, PA 17013 (717) 241-4311 -6- VERIFICATION David A. Krulac and Diane E. Krulac, hereby verify that the facts set forth in the foregoing Complaint in Quiet Title are true and correct to the best of their knowledge, information and belief, and understands that false statements herein are made Subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsifications. A//~;tJ a /~ DATE: / ~/5/0~ · fA ALl"" ~ C/r':AA f(Jt ~ , -6- {'l'l'(d ~ e~ 'r I~ .. .' :':~T ,'. ZIEGl.v, , "C -" [n" "-'(I"[JCF. 0[ DE" ' UPSET PRICE SALi:;DvER~AND cOUtHi'" WaiOErmm~m iurrau irrb ~~' :'r.\..I~{UL.:' VI ~l-~Y-':"":, "".' I> " CO. N, ' :':..-\,'''' J 2 D~e " c on 1J, 21 WIrts ~eeo Made this ......,..,.. ,..,..~~d....,........ day of ,......,....~,~Dl.'?!:~....,....,. 20..Q.:?" between the TAX CLAIM BUREAU, of the County of Cumberland. Pennsylvania, as Trustee, GRANTOR, and "l)a,,:i~,~'..r<rulac,lk,Dia,ne,li: I~ru!~c, ~f,C,u'!I',l:lil\ ,B~ro~,gh. .,..... ~~~.r,l~~. ~~~~.tr,. .~~~~rl.~~i!,: ...........,.....,.. _....... Grantee )IN't ~ll tl. h' 'd' f $ $5,682,26 'h d ' I h t ~t n.e..:;l' e 4~, t at In cons! eratlOn 0 ............................ III an pal(, receipt w ereo' is hereby acknowledged, the said Grantor does hereby grant and convey unto the said Grantee. ....'ii,'!!.'...., heirs and assigns, th~ certain premises situate in .............................~{l.~L.p,r;.M~QQr.Q.:rg~m.~.i,p...... Cumberland County, Pennsylvania. as folJow~: 705 Erford Road, house, lot 09-16-1050-166 See Appendix "A" for legal description Owner Or reputed owner as returned to said Bureau Orlando Torres. If. & AnaiJda Malave 705 Erford Road Camp Hill, PA 17011-1126 26th the same having been sold by the Tax Claim Bureau to the said grantee, on the ,......,..,..................... day September two of ,....,..,..,..........""..,,,,,....,,,,,,....,.. Anno Domini two thousand and ""'"..",..,............",..., after due advertisement according to law, the period of redemption for the payment of tax claims having expired without the property having been redeemed, or any tax judgements heretofore having been entered against the described property having not been satisfied, or no agreement to stay the sale of the within described prOperty having been entered into, or the within described real estate no longer remaining in possession of a sequestrator, by Upset Price Sale. under and by virtue of the Act of 1947 PL 1368 (Real Estate Tax Sale Law), :J1n .itnrllll .Jp'rrDf, said Grantnr has hereunto caused this Deed to be executed by its Director the day and year first above written. Signed. Sealed and Delivered in the presence of: TAX CLAIM BUREAU OF CUMBERLAND COUNTY, PENNSYLVANIA, TRUSTEE ,."."..,..,.".......",.",.........",...."",.. """,..,....,..,............. Byrd,~;~~7:.., (SEAL) }ss 0" this, the ,..,..........,..,.........~,..,......, day of .........~,......'....n..'...,....",....... 20,~,-?-- before me, the Prothonotary of the County of Cumberland, the uudersigncd officer, personally appeared I acob L Heisey ............................................................................................. Director of the Tax Claim Bureau of the County of Cumb.l~,}~' '-"'ll,o.n",ealth of Peunsylvania, known to me to be the persnn described iu the foreg~ing instrun;~, "". ,ed that he executed the >ame in the capacity therein stated and for the pur- pose '~ CO~1MON\VI'ALTH OF PENNSYLVANIA COUNTY OF CL'~jB"RLA:"\D \" I) I) ex:: N ) 13 II fJ I PR01liOH iTrr Df, r ha-'e hereunto set my hand and official seal. . 'AIl.ISlE CUM!I8Il.ANIi COIJN1Y COURT HOUSE MY COMMISSiON ElCPlIEs JANUARY 2.:m; ::;,;,.,.~,"~.,'., :',,)~ ~<<. :-" alrrtlfltatr of IIralllrnrr )'h.'" '~~'_::.~';~':': , I hereby' ccrtily th'..r-~'precise residence of the grantee herein is as follows: ....,..,..,.. David A, & Diane E, KruJac, P,O, Box 1064, Mechanicsburg, PA 17055 .........................................................................................................................................................-....... ~~..,..c.12c."L..~" BOOK 254 P,iCfJ806Stephen D, Tiley .... Cumberland County, Assistant Solicitor ?-'~..'?r.1~"",..,r::!.~,ltr Appendix "A" Legal Description 09-16-1050-166 ALL THAT CERTAIN tract or parcel of land situate in East Pennsboro Township, Cumberland County, more particularly bounded and described as follows, to wit: BEGINNING at a point on the Northerly line of Erford Road (East), which point is 84.06 feet East of the Northeasterly line between lots Nos. I and 2Y, Block "I", on the hereinafter mentioned Plan of Lots; thence along said dividing line, North 2 degrees 10 minutes West, 150 feet to a point; thence North 87 degrees 50 minutes East, 37.5 feet to a point at a dividing line between Lots Nos. 2X and 2Y, Block "I", on said Plan; thence along said dividing line and through the center of a partition wall and beyond, South 02 degrees 10 minutes East, 150 feet to a point on the Northerly line of Erford Road (East), aforesaid; thence along same, South 87 degreees 50 minutes West, 37.5 feet to a point, the place of BEGINNING. BEING Lot No. 2Y, Block "I", in Plan No.8, Ridley Park, which Plan is recored in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 16, Page 49. HAVING thereon erected a dwelling house being known and numbered as 705 Erford Road, Camp Hill, Pennsylvania. BEING the same premises which Avstar Mortgage Corporation, a Pennsylvania corporation by deed dated December 29, 1998, and recorded in the Office of Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book 192, Page 378, granted and conveyed unto Orlando Torres, Jr. and Anailda Malave, single individuals as joint tenants with rights of survivorship, 375 nlil7c50'e .J :;;~ 00 .. 11- -~ 00 ". > ~ s to he f':' ':-'t ':l'd ...:!,..,,---i"'qd Cou<'~" )'/\ ;.,'}.../I.... ' .. /"' ~"~-;r" j, .j4....J t: s87"SO'w 37.5 f / n-'...."("rr:l("~. ofI)ccds Title: Orlando Torres, Jr. & Anailda Malave, DB 192, Page 378 !Oate: /I//2/0L Scale' I inch 40 feet I File A VST AROES ["tact J o 129 Acres' 5625 Sq Fee,. 522.6 Sq Meters: No signiticant closure error. . Perimeter"" 375 teet OOI=::n2.lOw 150 003=82. IOe J 50 0029187.50e 37.5 004=s87.50w 37,5 BOOK 2.$4 Gf3827 f XTi / ;q, / 1 /J I; C-Xt:JIf?I1' A ;':;.j99~~Q~i;!!iJ~~~;;; ,""1'-1'0-'13 rD c-:, r""';I><::cncn:::oc:><>< ~Q..R-9.-" 3:UJc")-I--t,=,('"')r.-) :J:r:c......:~33. ~;::sz~~s:;~ <'tI (...j~O;""'';:;;C::t~...._~::.::'==J__ ~ e3~!:S~~:J>:;,,;~~:;:r_13;:x .....t,.,)~r-..;.3;'::J::-_ Jlt;o:I--!<;l.t::::r c....,.....)__~_ --1m", ~.Nt...)r-'l.'Y-t21:""'<:: ~r:h~&:J : ~;1.::c:.... ~Jc : c::::o C. !l5 M --, :t: ". --- ;#. ~~ ~i :~ ~.". ~,_.:t ~.~.; ::~ ~ ~ ~.. ~_~: ~,. r....l ..p. "-.;, .-;~~ .;;~... '::;~ '.'l I'...... h_) -lC.'- (....1 <:'.'1 r.:n C_'1 "-.0 ..r.', ,;;::, <7c. .~~, <:'':0 ,~. r.)1 '-l:' ,..> <> "" ~ ~ "'" ~ - ~.:~ ~ '" :~ .-. ;;l, l~.l- ro ~ "' g '" ,~ ,~ , ~..... I.""? i' Ii[ :::!I Q ~ '" 5 ~ ~ q" ,~ M ~ it '< ,., ~ ~:II :'l ~ .-. '" ,~ ~ " <:> a 15- M '- ~ :;' , ,~ .~ "" '" "" .... '" <> .u ~ ~ 0. '" (..;. (..\ " ell 800K 254.Gf3828 ::'l::;C""") ~~ ~'" ..... ~ (-- {-:~. K t-. i j (~: 1.J. (\ i (_._ " 1 ~ \.~ ,'" ,,, 'C ,- \-0 S / ,) I iJ '---... NANCY A. BESCH CHAIRMAN JOHN S. WARD CHIEF CLERK EARL R. KELLER VICE CHAIRMAN ROBERT C. SAlOIS SOLICITOR RICHARD L. ROVEGNO SECRETARY STEPHEN 0, TILEY ASSISTANT SOLICITOR TAX CLAIM BUREAU OF CUMBERLAND COUNTY One COurthouse Square, Carlisle, PA 17013-3389 (717) 240-6366 October 9, 2002 Parkton Enterprises, Inc, 11350 McCormick Road #200 Hunt Valley, l\.1D 2103 1 Property Description: House & Lot Land . 13 Acre 705 Erford Road #09- I 6-1050- I 66 East Pennsboro Township This notice is required by Pennsylvania State Statute, Section 607 (2) of Act No, 542 of 1947 and its amendments, .. . '-. .. ". -. '- ......... .... ". ". . . - ,. .,. '. .-' '. ..... . . '.. .... . . . .. .- - ".-. ......-........., .-...... " .. ..-. '..-.... -. '.... . ' ", , , "".." " ". '.. ..,,'., " ',', , ".. '.. , .., "..,'. ' " "Y'O":'tJ;R""'P"'R:,"'Q',:p' "12'"&>1'1''' ;'Fi!.iA"")"',S"':J3.',':'E:"":JEN': ""...S"O""t':.D:.....'A:T' :A"""T:":ax:'::: :':IJI:i"'S""'E""T""S'AL,''':''E,'''"O:,,'N'', ',',' ' " " ',""","," , , . . , " "', ", .,",'., .. '" ",,' '," ',".. , " ,'i.:,,' :,'::..,.,,:,:,,:,,:, ':.::::,':: "",:",,":.::,.,::,,: ',i','..,:'::'..,:,:',.", ,'::' ,', ' OCl'()B1!IR$6;~,OOZF6i{~,t2QJ.jI..i?G~ttJ'PlEQR.,tJ)Et~Qti$NT TAXEs INCURREJ]) IN THE TOVVNSlfn'POF1J;AS'P~ENNSiB()lIO: TOWNSHrP CUMBERLAND COUNTY, PENNS'ttV~. ... .. .. .. .--.. ,- - .. . . .......,..-..,...-..-- .... '....... Y'O' 'IJ ],',tk-"):1:?Tr.12' '0,' 'BTP0r:I'iii<tg 0h"b:i0dE':P",'ry.,'I"'01\;ts"'icO:Tti:qS il1'12:' IMME,:, , " ',' ',,", :'D" r.'A'.".'T"':.E~L.v",:~,.,y;,LB'U'F~T".::"N""'"0> 'L"'A;>PT'fE",'R;:fT"a:s ..AN.;Y:m:;'P'!BIR:i''?!\T....Y/:'''('.3'' ,vO:"J:~N;D""',:,i:A:fyiS:/.gF:O'J..C"L:.':"'L",".O~,,"W1J';J,",,'.' "',' ':G' , ' " , "',' ," ,',., ,'" , , "., "" "", ',' ",,'.., "'..", ,", , '.." ','" ' ._-'.. .....,...".... .-.-:....:;,'........:....;.;,..,-.::,.-, .'- :'. .,..:..,....'..-:",,-;,...-.,.-.:..- .-..,..-,:.:';:""....:'.-:._. ..,.-;, -,;.:;'::.'-....- ......:':....'_..:... . .. . . '.' - . -. - - .... . T!9]:C()~~fi0NN1Si6Ft~REiT~:8YTmi.d6bRT. .." ." '.-.-' ."'. '-'" ",. .....".......-... ..... -"'-."'., "'-.." . -. ". '-. . ."-", . . .. . ........ ..'. ,!j=1YX)tJN.A:vE ANY QliESTIQNSPLEA.sE CALL YO'U:ltATTORNEY, THIST AX CLA.J1vt 131JREAU AT TftEFOttOWJ!:NG TELEPHONE NuJ:v1J3ER (717) 240c6366,ORTHEq~OUJ\fryb<\~~fN3F?~~B-RVJQE" ~XN)9118 Jacob L Heisey, Complete Items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. · Print your name and address on the reverse so that we can return the card to you. · Attach this card to the back of the maiJpiece, or on the front if space permits. 1. Article Addressed to: '-l Pi A:fZK.L-.~ G','kt)f'i:'/S Try! ~J I I '_ 1 _ I r ~5C' io- '\ 'I 1'/. I) d i",," ..::... ) ! 'I ~ '. I.....C K.,I'Yl $.it- f:'f,.)F~$' ;.(j:':t;~+ D. Is delivery address different tro item 1? 0 Ves It VES, enter delivery address below: 0 No \-\\J...V\~ \JeUI'c:j1 (Y)O cJ...i 031 3. Service Type JllI' Certified Meil o Registered o Insured Mail o Express Mail o Return Receipt tor Merchandise OC,Q.D, P~l i1 Cq-II~ -1050'11..:.~ 4, Restricted Delivery? (Extra Fee) o Ves 2. Artl, (fral - PS FOI ,1102595-01.M-0381 t- ) EX(-Jrer ,\/(5 /' n ( fC -.., ~J ~ ( ,..... -.. ;::J '- -- () J~ "v 0..:,) 10 ",) (.", .. ~ ~ ~~ 'J "': '. '& DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-5973 CIVIL ACTION - LAW vs. ACTION TO QUIET TITLE PARKTON ENTERPRISES, INC. Defendant ENTRY OF APPEARANCE AND ACCEPTANCE OF SERVICE I hereby enter my appearance as attorney for the Defendant, Parkton Enterprises, Inc., and accept service of the Complaint on behalf of Parkton Enterprises, Inc. and certify that I am I fJ-iO 3 at Scott A. i .terick, PA ID No. 55650 JAMES, SMITH, DURKIN & CONNELLY, LLP P. O. Box 650 Hershey, PA 17033 (717) 533-3280 authorized to do so. (') c: ~ "U t... mn; '2::T: Zr:-= ~:::. ~t~.+: ;r;: ,~ .. $~~ ~ o 0:> o -11 ~ "P'" Z '" l-;;:~:':; ;';8 , J,'. (J.. 1 "~) -,~ '"t" ~ ,.;.:;~ :,:,; C') C5,n --t ? ~ I (j\ -0 ~ N :J1 (...) <~ .<::/~ - AP{(62003 DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-5973 CIVIL ACTION - LAW vs. ACTION TO QUIET TITLE PARKTON ENTERPRISES, INC.: Defendant CUMBERLAND COUNTY TAX CLAIM BUREAU, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4847 CIVIL ACTION - LAW ~' vs. ORLANDO TORRES, JR. and ANAILDA MALAVE, Defendants TAX PARCEL NO. 09-16-1050-166 ' PETITION TO SET ASIDE TAX SALE, NUNC PRO TUNC PARKTON ENTERPRISES, INC.: Petitioner vs. DAVID A. KRULAC and DIANE E. KRULAC, Husband and Wife, and CUMBERLAND COUNTY TAX CLAIM BUREAU, Respondents ORDER OF COURT AND NOW, this /7tA day of ~-,' jJ , 2003, upon consideration of the attached "Submission of Consolidated Cases on Stipulated Facts Pursuant to PA.R.C.P. 1038.1", executed by counsel, for the respective parties in interest, it is hereby ordered and directed as follows: 1. The only parties in interest in this matter are Parkton Enterprises, Inc. (Parkton), David A. Krulac and Diane E. Krulac, husband and wife (Krulac), and the Cumberland County Tax Claim ,'c.. --... f t ~ ~ ~ ~ ~ Bureau (Tax Claim Bureau) . 2. The Petition to Set Aside Tax Sale Nunc Pro Tunc filed by parkton is timely and shall be heard by the Court. 3. The Petition to Set Aside Tax Sale and the Quiet Title Action filed by Krulac be and are hereby consolidated for purposes of decision on the Stipulations of the Parties attached hereto. 4. Trial of the matter, which shall be limited to argument by the respective counsel for the parties, is hereby scheduled to ~ time. ~)p~ / :.30 o'clock ~.m., prevailing , 2003 at The parties shall submit Briefs to the Court in support of their respective positions at least ten J. date of the Trial. CC: SCQtt A. Dietterick JAMES, SMITH, DIETTERICK & CONNELLY LLP Attorney for parkton Enterprises, Inc. Dale F. Shughart, Jr., Esquire Attorney for David A. and Diane E. Krulac Stephen D. Tiley, Esquire Assistant Solicitor of Cumberland County Attorney for Cumberland County Tax Claim Bureau DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-5973 CIVIL ACTION - LAW vs. ACTION TO QUIET TITLE PARKTON ENTERPRISES, INC.: Defendant CUMBERLAND COUNTY TAX CLAIM BUREAU, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4847 CIVIL ACTION - LAW vs. ORLANDO TORRES, JR. and ANAILDA MALAVE, Defendants TAX PARCEL NO. 09-16-1050-166 PETITION TO SET ASIDE TAX SALE, NUNC PRO TUNC PARKTON ENTERPRISES, INC.: Petitioner vs. DAVID A. KRULAC and DIANE E. KRULAC, Husband and Wife, and CUMBERLAND COUNTY TAX CLAIM BUREAU, Respondents SUBMISSION OF CONSOLIDATED CASES ON STIPULATED FACTS PURSUANT TO PA.R.C.P. 1038.1 SMITH, DIETTERICK & CONNELLY, LLP, attorney for Parkton and Diane E. Krulac; SCOTT A. DIETTERICK, Esquire, of JAMES, DALE F. SHUGHART, JR., E~quire, attorney for David A. Krulac Cumberland County, Attorney for the Cumberland County Tax Claim Enterprises, Inc., and STEPHEN D. TILEY, Assistant Solicitor of Bureau, do stipulate and agree to consolidate the above two captioned proceedings and submit them to the Court for decision ,,-- --- 0Jf t' , ~~ r.1- ~ \:, ~ ~ J AP{i6 2003 DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVAN~ 02-5973 CIVIL ACTION - LAW ~ Plaintiffs ACTION TO QUIET TITLE vs. PARKTON ENTERPRISES, INC.: Defendant CUMBERLAND COUNTY TAX CLAIM BUREAU, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4847 CIVIL ACTION - LAW vs. ORLANDO TORRES, JR. and ANAILDA MALAVE, Defendants TAX PARCEL NO. 09-16-1050-166 PETITION TO SET ASIDE TAX SALE, NUNC PRO TUNC PARKTON ENTERPRISES, INC.: petitioner vs. DAVID A. KRULAC and DIANE E. KRULAC, Husband and Wife, and CUMBERLAND COUNTY TAX CLAIM BUREAU, Respondents ORDER OF COURT AND NOW, this 17tA day of ~ , 2003, upon consideration of the attached "Submission of Consolidated Cases on Stipulated Facts Pursuant to PA.R.C.P. 1038.1", executed by counsel for the respective parties in interest, it is hereby ordered and directed as follows: 1. The only parties in interest in this matter are Parkton Enterprises, Inc. (Parkton), David A. Krulac and Diane E. Krulac, husband and wife (Krulac), and the Cumberland County Tax Claim Bureau (Tax Claim Bureau) . 2. The Petition to Set Aside Tax Sale Nunc Pro Tunc filed by Parkton is timely and shall be heard by the Court. 3. The Petition to Set Aside Tax Sale and the Quiet Title Action filed by Krulac be and are hereby consolidated for purposes of decision on the Stipulations of the Parties attached hereto. 4. Trial of the matter, which shall be limited to argument by the respective counsel for the parties, is hereby scheduled to ~ time. i<-);~ , 2003 at / .:30 o'clock ~.m., prevailing The parties shall submit Briefs to the Court in support of their respective positions at least ten (lO) to the date of the Trial. J. CC: SCQtt A. Dietterick JAMES, SMITH, DIETTERICK & CONNELLY LLP Attorney for Parkton Enterprises, Inc. Dale F. Shughart, Jr., Esquire Attorney for David A. and Diane E. Krulac PI ~ 4_/7..03 ~ Stephen D. Tiley, Esquire Assistant Solicitor of Cumberland County Attorney for Cumberland County Tax Claim Bureau 'iIN\fl,;lASNN3d I ! ~.l"'r/~, c'.' ..J"" ,-",-,',\1("'.... A.J.J V: f'...,,'.,..l ",' \. . ,,'. -it:"1: '~~ tv , I.: -'\'j' I I " n" p(t L~ :c:. ~d I., I GO'i L.U }! tl !1,~ ,jV.V....." PARKTON ENTERPRISES, INC., PETITIONER v, DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, and CUMBERLAND COUNTY TAX CLAIM BUREAU, RESPONDENTS : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : 02-4847 CIVIL TERM : PETITION TO SET ASIDE TAX SALE ---------------------------------------------------- DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, PLAINTIFFS V. PARKTON ENTERPRISES, INC" DEFENDANT V. ORLANDO TORRES, JR. and ANAILDA MALAVE, DEFENDANTS : IN THE COURT OF COMMON PLEAS : OF CUMBERU\ND COUNTY, : PENNSYLVANIA : 02-5973 CIVIL TERM v' : QUIET TITLE IN RE: PETITION TO SET ASIDE TAX SALE AND ACTION TO QUIET TITLE ORDER OF COURT AND NOW, this 15"1-. day of October, 2003, IT IS ORDERED: (1) The petition of Parkton Enterprises, Inc., to proce,~d nunc pro tunc to set aside an upset tax sale, IS GRANTED. (2) The upset tax sale on September 26, 2002, at which the Cumberland County 02-4847 CIVIL TERM 02-5973 CIVIL TERM Tax Claim Bureau sold 705 Erford Road, East Pennsboro Township, Cumberland County, Pennsylvania, to David A. Krulac and Diane E. J<rulac, IS SET ASIDE. (3) Title to 705 Erford Road, East Pennsboro Township, Cumberland County, Pennsylvania, Cumberland County Tax Parcel No. 09-16-1050-166, IS QUIETED in Parkton Enterprises, Inc., under a deed from the Sherit:F of Cumberland County dated September 24, 2002, and recorded September 25, 2002, in Cumberland County Deed Book 253, Page 3573. David A. Krulac and Diane E. Krulac, husband and wife, are forever barred from asserting any claim or interest in or to any portion of the premises inconsistent with the ownership of Parkton Enterprises, Inc. (4) The Cumberland County Tax Claim Bureau shall refund the sum of $7,268.74 to the Krulacs within thirty (30) days of any date this order shall become final and the Tax Claim Bureau receives payment from Parkton !Enterprises, Inc., of all taxes, costs, and interest for calendar years 2000 and 2001. (5) A copy of this order and opinion may be recorded in the office of the Recorder of Deeds of Cumberland County Upon payment of the applicable fee, ? .~ r~ 1/" ,~? 6'tS) ,\ \0 / 02-4847 CIVIL TERM 02-5973 CIVIL TERM Kimberly A. DeWitt, Esquire Scott A. Dietterick, Esquire, For Parkton Enterprises, Inc. Dale F. Shughart, Jr., Esquire For David A. Krulac and Diane E. Krulac Stephen D. Tiley, Esquire For Cumberland County Tax Claim Bureau :sal PARKTON ENTERPRISES, INC., PETITIONER v, DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, and CUMBERLAND COUNTY TAX CLAIM BUREAU, RESPONDENTS DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, PLAINTIFFS V. PARKTON ENTERPRISES, INC., DEFENDANT V. ORLANDO TORRES, JR. and ANAILDA MALAVE, DEFENDANTS : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : 02-4847 CIVIL TERM PETITION TO SET ASIDE TAX SALE : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, : PENNSYLVANIA : 02-5973 CIVIL TERM : QUIET TITLE IN RE: PETITION TO SET ASIDE TAX SALE AND ACTION TO QUIET TITLE OPINION AND ORDER OF COURT Bayley, J., October 15,2003:-- On January 31, 2001, Eastern Savings Bank FSB ()btained a default judgment in mortgage foreclosure against Orlando Torres, Jr. and Anailda Malave, on a property 02-4847 CIVIL TERM 02-5973 CIVIL TERM at 705 Erford Road, East Pennsboro Township, Cumberland COl!nty.' In addition to not making required payments on the mortgage, the mortgagees were in default for failing to make required payments into escrow with Eastern of 2000 real estate taxes. In January, 2001, the unpaid 2000 real estate taxes were turned over by the East Pennsboro Tax Collector to the Cumberland County Tax Claim Bureau. A sheriffs sale of 705 Erford Road on the mortgage foreclosure was scheiduled for June 5, 2002, but postponed because Torres and Malave filed for bankruptcy in the Middle District of Pennsylvania. Eastern had actual knowledge of the existEmce of the lien of the Tax Claim Bureau for unpaid 2000 real estate taxes, and a PaRC.P. 3129.2 notice was served on the Tax Claim Bureau prior to June 5, 2002.' The bankruptcy proceedings were dismissed on July 30, 2002. The sheriffs sale was rescheduled for September 4, 2002, The property was sold that date to the first mortgagee and executing creditor , Torres and Malave purchased the property by a deed dated and recorded on December 29,1998, 2 Rule 3129.2(a) provides, inter alia, that notice of the salE~ of real property by the sheriff shall be given "to all persons whose names and addresses are set forth in the affidavit required by Rule 3129.1. , ,." Those persons, setforth in Rule 3129.1, include: (1) the owner or reputed owner of the real property and of the defendant in the judgment; and (2) every other person who has any record lien on that property; and (3) every other person who has any record interest in that property which may be affected by the sale; and (4) every other person who has any interest in that property not of record which may be affected by the sale and of which the plaintiff has ~:nowledge. -2- 02-4847 CIVIL TERM 02-5973 CIVIL TERM for $1.00.3 The sheriff's schedule of distribution listed a priority claim for unpaid taxes owed to the Cumberland County Tax Claim Bureau. Torms and Malave continued in possession of the property after the sheriff's sale. On September 18, 2002, an assignment of the mortgage dated August 1, 2002 from Eastern to Parkton Enterprises, Inc. was recorded, On September 25,2002, a sheriff's deed to Parkton dated September 24,2002, was recorded, The deed sets forth: The same having been sold by me to the said grantee on the 4th day of September Anno Domini Two Thousand and Two (2002) after due advertisement according to law, under and by Virtue of a Writ of Execution issued on the 20th day of February Anno Domini 2002 out of the Court of Common Pleas of Cumberland County, Pennsylvania, as of Civil Term, Two Thousand (2000) Number 4692, at the suit of Eastern Savina Bank, FSB aaainst Orlando Torres, Jr. and Anailda Malave. On September 26, 2002, the Cumberland County Tax Claim Bureau conducted an upset sale of 705 Erford Road for unpaid 2000 real estl~te taxes. David A. Krulac and Diane E. Krulac purchased the property for $5,682.20, an amount that was sufficient to pay the taxes due,' Torres and Malave were still in possession of the property when it was sold by the Tax Claim Bureau. The Bureau did not notify either Parkton or Eastern of the sale. It attempted to serve a post-sale notice by certified mail 3 Writ No. 2000-4692 Civil, Eastern Savings Bank FSB v. Orlando Torres, Jr. and Anailda Malave. The real debt of the defaulted mortgage was $83,323.89. 'With all costs the Krulacs paid the Tax Bureau $7,268.74. -3- 02-4847 CIVIL TERM 02-5973 CIVIL TERM on Parkton that was not received. On November 12, 2002, Parkton filed a complaint against Torres and Malave to eject them from 705 Erford Road. A deed dated and recorded on December 2, 2002, conveyed title from the Tax Claim Bureau to the Krulacs, Parkton did not learn of the upset sale until Dec:ember 17,2002, when the Krulacs filed a compliant against it to quiet title to 705 Erford Road, and a petition to intervene in Parkton's ejectment action against Torres and Malave. On March 12, 2003, Parkton filed a petition to set aside the upset sale nunc pro tunc. That petition and the action to quiet title were consolidated for disposition, Torres and Malave have now vacated 705 Erford Road, Their interest in the propE~rty has been divested, and they have not appeared in the action to quiet title. The contesting parties agree that Parkton, having not been served with a post-sale notice, and having first been notified of the upset sale on December 17, 2002, shall be allowed to proceed nunc pro tunc on its petition to set the sale aside. ISSUES Until September 25, 2002, the day before the upset sale on September 26, the recorded owners by deed of 705 Erford Road were Orlando Torres, Jr, and Anailda Malave. Parkton, as the recorded owner of the property 011 the date of the upset sale to the Krulacs, maintains that the sale must be set aside because it did not receive notice before it was conducted. All pre-sale notices were in proper form and were properly advertised and served on Torres and Malave within the time limits required by the Real -4- 02-4847 CIVIL TERM 02-5973 CIVIL TERM Estate Tax Sale Law, 72 P.S, Section 5860.101 etseq. The last notices were the sheriff's service upon Torres and Malave and the posting of the property on August 16, 2002. The Real Estate Tax Sale Law requires that the Tax Claim Bureau provide three separate notices for an upset sale: (1) publication at least thirty days prior to the sale; (2) certifiedlfirst class mail at least thirty days prior to the date of sale to each owner; and (3) posting of the property at least ten days prior to sale, 72 P.S. S 5860.602. Also, there must be personal service at least ten days prior to the date of the actual sale where properties are "owner occupied." Section 5860.102 defines an "owner" as: the person in whose name the property is last registered, if registered according to law, or, if not registered according to law, the person whose name last appears as an owner of record on any deed or instrument of conveyance recorded in the county office designed for d" 5 recor Ing. . . , The Tax Claim Bureau sets forth in its brief: [djenies that Parkton had any right to any notice and asserts that the notice requirements of the Real Estate Tax Sale Law were properly executed. *** The Tax Claim Bureau cannot be required to serve an individual or entity which is not an owner of record at the time of Notice and indeed cannot be known to the Tax Claim Bureau. * *. To hold otherwise would permit parties to thwart the sale of their property by a "last minute" conveyance of their property. Such a rule would 5 Cumberland County does not have a registry system, -5- 02-4847 CIVIL TERM 02-5973 CIVIL TERM threaten the real estate tax collection process, and thus be contrary to public policy. The Krulacs in their brief: [c]ontend that the definition of owner as set fClrth in Section 102 of the Real Estate Tax Sale Law, 72 P.S, 5860.102 contemplates the owner of record at the time the required three forms of notice are properly given in accordance with the Stature. To hold otherwise would be to allow the parties to thwart the ability of the Tax Claim Bureau to conduct a valid upset sale by making last minute transfers of title to the property after the Notices are properly provided to the Record Owner. The Tax Claim Bureau can be effectively prevented from ever selling the property for unpaid real estate taxes if such last minutes transfers were held to invalidate the prior Notices, CASE LAW In Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S,Ct. 2706, 77 L.Ed.2d 180 (1983), a tax sale case, the Supreme Court olf the United States concluded that: [p]ublication and posting are unlikely to reach those who, although they have an interest in the property, do not make special efforts to keep abreast of such notices. . .. Notice by mail or other means as certain to insure actual notice is a minimum constitutional precondition to a proceeding that will adversely affect the liberty or property interest of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable. (Emphasis added.) In Wells Fargo Bank of Minnesota N.A. v. Tax Claim Bureau of Monroe County, 817 A.2d 1196 (Pa.Commw, 2003), the facts wen3: On October 26, 1993, Catherine A. Colarco took title to property located at 1296 Winding Way, Tobyhanna, Pennsylvania, , .. On February 5, 1999, Colarco executed a mortgage on the property to -6- 02-4847 CIVIL TERM 02-5973 CIVIL TERM Ameriquest Mortgage Company, which later assigned it to Wells Fargo, On March 3, 2000, Wells Fargo filed a complaint in mortgage foreclosure against Colarco for default under the terms of the mortgage. A default order in favor of Wells Fargo was entered in the foreclosure action on May 11, 2000. In order to satisfy the jUdgment against COlarco, a United States Marshal's sale was held on May 17, 2001. Wells Fargo purchased the property at the sale. On ,July 13, 2001, the United States Marshal executed a deed in favor of Wells Fargo. The deed was recorded in the Office for the Recording of Deeds of Monroe County on July 24, 2001. Colarco had failed to make payments of real estate taxes on the property for the year 1999, On July 11, 2001, the Monroe County Tax Claim Bureau (Bureau) sent Calarco notice that the property would be sold at a tax sale to be held on September 28,2001. Colarco executed a return receipt for the certified mail, Notice of the tax sale was published in the Monroe Legal Reporter and the Pocono Record on August 17, 2001. The property was also posted with a notice of sale on August 1, 2001. On September 28, 2001, the Bureau sold the property to the Gardner Family Trust, Steven Gladstone, and Robert E. Plank, Jr., (collectively, Appellees). On October 5,2001, the Bureau sent notice to Wells Fargo that the property had been sold at an upset tax sale. This notice is the first notification to Wells Fargo that is reflected in the Bureau's file. There was no express actual notice or implied actual notice to the property owner, Wells Fargo, prior to a tax sale. The Commonwealth Court reversed an order of a trial court that upheld the sale because the published notices and the posting of the property identified Catherine Colarco as the owner when in fact Wells Fargo was the recorded owner at the time the notices were published and the property was posted, The Tax Claim Bureau and the purchasers suggested that Wells Fargo failed to act in a reasonable manner by not investigating the status of the taxes on the property prior to its purChase at the United States Marshal's sale. The Court, citing Clawson Appeal, -7- 02-4847 CIVIL TERM 02-5973 CIVIL TERM 39 Pa. Commw. 492 (1979), stated that any alleged falilure on the part of Wells Fargo is irrelevant in the determination of whether the Bureau complied with its statutory obligations because: The [Law], however, imposers] duties, not on owners, but on the agencies responsible for sales; and such of those duties as relate to the giving of notice to owners of impending sales of their properties must be strictly complied with. Grace Building Co. v. Clouse, 5 Pa. Cmwlth. 110,289 A2d 525 (1972). Hence, the inquiry is not to be focused on the neglect of the owner, which is often present in some degree but on whether the activities of the Bureau comply with the requirements of the statute. In Gladstone v. Fed.eral National Mortgage Association, 819 A.2d 171 (Pa. Commw. 2003), Mellon Mortgage Company obtained a jUdgment in mortgage foreclosure against Julio and Wendy Echeverria on September 29, 1999. On June 22, 2000, FNMA purchased the property at a United States Marshal's sale, A deed was recorded in Monroe County on August 16, 2000. The Ecl1everrias failed to pay real estate taxes on the property in 1998. The Tax Claim Bureau sent all pre-sale notices and posted the property when the Echeverrias were the reicord owners. On September 22, 2000, Gladstone purchased the property at tax sale, By a notice dated September 27, 2000, the Bureau notified FNMA that the property had been sold at an upset sale, FNMA filed a petition to set aside the tax sale and Gladstone filed an action to quiet title, The trial court concluded that the Bureau's duty to inform the owner of record was satisfied once all required pre-sale notices were delivered. It rejected FNMA's contention that the Bureau had an obligation to continually check the recording indices -8- 02-4847 CIVIL TERM 02-5973 CIVIL TERM of Monroe County prior to conductin9 the sale, The Court granted Gladstone's motion for summary judgment on the action to quiet title and dismissed FNMA's petition to set aside the tax sale. On appeal the Commonwealth Court reversed, The record showed that Chase Manhattan Mortgage Corporation serviced the mortgage loan to the Echeverrias in 2000. On March 31, 2000, Chase paid the tax collector that year's county and township taxes. On September 14,2000, Chase paid the tax collector the 2000 school taxes. The Commonwealth Court concluded: [C]hase made a payment for county and township taxes for a tax year subsequent to the delinquency. The township tax collector, using common sense business practices, should have advised Chase that, despite that payment, a tax delinquency remained on the property. The township tax collector, in accordance with Section 605 of the Law, was required to furnish to the Bureau a record of the amount of all accrued taxes. This record would have reflected that county and township taxes were paid for the property for a year subsequent to the delinquency. The Bureau, having knowledge that taxes were paid for a subsequent year, should have made an inquiry of the township tax collector to determine whether there was a commercial entity assuming re~ponsibility for taxes on the property. Because the Bureau failed to make this inquiry, we conclude that the Bureau did not use common sense business practices to determine the parties to whom notice should be given, Accordingly, we will reverse the order of the trial court. (Emphasis added.) In In re: Tax Claim Bureau, German Township, B4 Pa. Commw. 374 (1982), the Fayette County Tax Claim Bureau, on October 12, 1972, sold two tracts listed in the tax sale notice as owned or reputed to be owned by Mt. Sterling Fuel Company. Subsequently, the Bureau determined that on August 26,1970, the two tracts together with another tract had been previously sold to George A. Solomon and George -9- 02-4847 CIVIL TERM 02-5973 CIVIL TERM Teslovich. Solomon and Teslovich were not the registered owners of the two tracts at the time of the sale and there was nothing to indicate that they were in possession of the vacant property or that they were the reputed owners in the neighborhood, The trial court declared the tax sale invalid because Solomon and Teslovich did not receive required pre-sale notices. The record showed that the first tract in the 1970 conveyance was properly assessed in 1971 in the names of the new owners but through oversight the second and third tract were not. The Commonwealth Court stated: While it is not incumbent upon the Bureau to make an exhaustive search of current landowners, knowledge of the tax collector or of the county assessment office is chargeable to the Bureau. Here, the assessment office did reflect a change in ownership as to one tract in the conveyance. . ., a fact which should have alerted the Bureau to look at the ownership of the subject tracts. Thus, iit appears that the Bureau made a mistake which it only recently discovered and now attempting to rectify. We hold that the Bureau's notices to [Mt. Sterling Fuel Company] do not satisfy the notice requirement of the Act. (Emphasis added.) In Sabbeth v. Tax Claim Bureau of Fulton County, 714 A.2d 514 (Pa. Commw. 1998), the Commonwealth Court stated that if all pre-sale statutory notice requirements have not been met a tax sale is valid only if the owners received actual notice of the sale. See also, Donofrio v. Northampton County Tax Claim Bureau, 811 A.2d 1120 (Pa. Commw. 2002). The Court stated in Sabbeth "[t]hat the definition of actual notice encompasses both expressed actual notice and implied actual notice..,," and quoting Black's Law Dictionary stated: -10- 02-4847 CIVIL TERM 02-5973 CIVIL TERM The term "actual notice," however, is generally given a wider meaning as embracing two classes, express and implied; the former includes all knowledge of a degree above that which depends upon collateral inference, or which imposes upon the party the further duty of inquiry; the latter imputes knowledge to the party because he is shown to be conscious of having the means of knowledge, In this sense actual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledgEl was sufficient to put him upon inquiry. DISCUSSION In the case sub judice, the timeline is: January 31, 2001 Default judgment by Eastern against mortgagors Torres and Malave. June 5,2002 Original sheriffs sale date. August 1, 2002 Assignment of mortgage from Eastern to Parkton, September 4, 2002 Sheriffs sale to first mortgagee and executing creditor. September 18, 2002 Recording of assignment of mortgage from Eastern to Parkton. September 24, 2002 Sheriffs deed to Parkton. September 25, 2002 Recording of sheriffs deed to Parkton. September 26, 2002 Upset tax sale to Krulacs. December 2, 2002 Recording of deed from Tax Claim Bureau to Krulacs, -11- 02-4847 CIVIL TERM 02-5973 CIVIL TERM The sheriff's sale extinguished the lien on 705 Er1'ord Road of Eastern's mortgage that was assigned to Parkton, but it did not extinguish the priority tax lien,' Parkton became the owner of the property as a result of the sheriff's sale. Had any competitive bidding occurred at the sale, the proceeds mceived in excess of the sheriff's costs would have been applied to the priority tax claim of the Tax Claim Bureau. On the cost only bid, the sheriff did not pay any money to the Tax Claim Bureau and did not request funds from the bidder to pay the tax claim. The facts here are distinguishable from those in Wells Fargo. Parkton, unlike Wells Fargo, was not the recorded owner of 705 Erford Road at any time when the notices, publication and posting were made within the time frames required in the Real Estate Tax Law. Unlike the facts in German Township, here there was no oversight in the assessment office that was chargeable to the Tax Claim Bureau. As to the law regarding knowledge of the property owner set forth in Sabbeth and Donofrio, although Parkton had knowledge of taxes owed to the Tax Claim Bureau as listed on the sheriff's schedule of distribution, it had no express actual knowledge of the tax sale on September 26,2002, which was the day after its deed from the sheriff was recorded. It is inexplicable that Parkton, in purchasing 705 Erford Road at the sheriff sale , 72 P,S, 5860.301; 53 P.S. 7102-7103. In contrast, properties sold at an upset sale are conveyed "subject to the lien of every recorded obligation, claim, lien, estate, mortgage, ground rent and Commonwealth tax lien not included in the upset price with which said property may have or shall become charged or for which it may become liable," 72 P.S. ~ 5860.609. -12- 02-4847 CIVIL TERM 02-5973 CIVIL TERM following Eastern's unrecorded assignment to it of the defaulted mortgage, made no inquiry concerning the status of the taxes owed to the Tax Claim Bureau. Notwithstanding, having knowledge that taxes were owed and overdue does not equate into implied actual notice of the tax sale scheduled for September 26, 2002. The facts here are analogous to those in Gladstone. In Gladstone, a commercial mortgagor paid the mortgagee's taxes in a }'ear subsequent to the year that there were unpaid taxes for which the property was sold. That triggered a responsibility on the Tax Claim Bureau to use common sense business practices to determine the parties to whom notice should be given. In the present case, no taxes for any intervening year were paid to the East Pennsboro tax collector. However, the Tax Claim Bureau was served with a Rule 3129.2 notice of the sheriffs sale scheduled for June 5, 2002. The Bureau did not check to determine if IIhe property was sold by the sheriff before the upset sale to the Krulacs on Septembel' 26, 2002, The duty is on the Tax Claim Bureau to give notice of impending sales to owners. Clawson Appeal, supra. Publication and posting alone is not constitutionally sufficient if the name and address of the owner is reasonably ascertainable, Mennonite Board of Missions, supra. Parkton's address in Hunt Valley, Maryland, was certainly ascertainable in the sheriffs records, In the present case, even though Torres and Malave still occupied the property, and were the recorded owners until September :26, 2002, it was incumbent on the Tax Claim Bureau, having received notice of a pendin~g sheriff sale for June 5, -13- 02-4847 CIVIL TERM 02-5973 CIVIL TERM 2002, to use common sense business practices to makE~ inquiry of the sheriff to determine if 705 Erford Road was sold prior to the upset sale on September 26, 2002. A check would have disclosed that the sale scheduled for June 5th, was continued to September 4th, and that the property was sold on September 4th, which was 22 days before the upset sale. Although the Tax Claim Bureau served all of the notices on the record owner within the time frames required by the Real Estate Tax Law, the Bureau was constitutionally required to give notice to any new owner if reasonably ascertainable, which Parkton was. Accordingly, we will (1) grant Parkton's petition to set aside the tax sale, (2) quiet title to the premises, and (3) order the Cumberland County Tax Claim Bureau to refund $7,268.74 to the Krulacs. ORDER OF COURT AND NOW, this /s-tL. day of October, 2003, IT IS ORDERED: (1) The petition of Parkton Enterprises, Inc., to prc)ceed nunc pro tunc to set aside an upset tax sale, IS GRANTED. (2) The upset tax sale on September 26, 2002, at which the Cumberland County Tax Claim Bureau sold 705 Erford Road, East Pennsboro Township, Cumberland County, Pennsylvania, to David A. Krulac and Diane E. Krulac, IS SET ASIDE. (3) Title to 705 Erford Road, East Pennsboro Township, Cumberland County, Pennsylvania, Cumberland County Tax Parcel No, 09-16.,1050-166, IS QUIETED in Parkton Enterprises, Inc., under a deed from the Sheriff of Cumberland County dated -14- 02-4847 CIVIL TERM 02-5973 CIVIL TERM September 24, 2002, and recorded September 25, 200:1, in Cumberland County Deed Book 253, Page 3573, David A. Krulac and Diane E. Krulac, husband and wife, are forever barred from asserting any claim or interest in 01" to any portion of the premises inconsistent with the ownership of Parkton Enterprises, Inc. (4) The Cumberland County Tax Claim Bureau shall refund the sum of $7,268.74 to the Krulacs within thirty (30) days of any date this order shall become final and the Tax Claim Bureau receives payment from Parkton Enterprises, Inc., of all taxes, costs, and interest for calendar years 2000 and 2001. (5) A copy of this order and opinion may be recorded in the office of the Recorder of Deeds of Cumberland County upon payment of the applicable fee, By thee~~ ,/ ~ Edgar B. Bayley, :J.:i -15- 02-4847 CIVIL TERM 02-5973 CIVIL TERM Kimberly A. DeWitt, Esquire Scott A. Dietterick, Esquire For Parkton Enterprises, Inc. Dale F. Shughart, Jr., Esquire For David A. Krulac and Diane E. Krulac Stephen D. Tiley, Esquire For Cumberland County Tax Claim Bureau :sal -16- PARKTON ENT RPRISES, INC., PE 1TI0NER v, DAVID A. KRU C and DIANE E, KRU C, husband and wife, and CUMB RLAND COUNTY TAX CLAIM BU EAU, RESPON ENTS DAVIDA. KRU DIANE E. KRU and wife, PLAINTI C and C, husband S V, PARKTON ENT RPRISES, INC" DEFEND NT V. ORLANDO TOR ES, JR. and ANAILDA MALA E, DEFEND NTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-4847 CIVIL TERM PETITION TO SET ASIDE TAX SALE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ~73 CIVIL TERM : QUIET TITLE ORDER OF COURT , this ~ day of October, 2003, David A. Krulac, Diane E. Krulac and th Cumberland County Tax Claim Bureau having filed post-trial motions to the 0 er dated October 15, 2003, IT IS ORDERED THAT: (1) The rulacs and the Cumberland County Tax Claim Bureau shall file a brief in chamber not later than fifteen (15) days from this date in support of their post-trial motion . (2) Parkt n Enterprises shall file a response brief in chambers not later than thirty (30) d ys from this date. rty who wishes oral argument on the post-trial motions should ask for oral argu ent at the beginning of their brief, Otherwise, the post-trial motions will be d cided on briefs only, Ed9"B.BaY~ Kimberly A. De itt, Esquire Scott A. Dietteric , Esquire For Parkton Ent rprises, Inc, Dale F. Shugha ,Jr., Esquire For David A. Kru ac and Diane E. Krulac -Uf-uA ~ ) () . ~9- 03 Stephen D. Tiley Esquire For Cumberland County Tax Claim Bureau ~ :sal IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID A. KRULAC and DIANE E. KRULAC, Plaintiffs : CIVIL ACTION-LAW No. 02-5973 v. QUIET TITLE ACTION P ARKTON ENTERPRISES, INC., Defendant THE CUMBERLAND COUNTY TAX CLAIM BUREAU, Plaintiff. NO. 02-4847 PETITION TO SET ASIDE TAX SALE, NUNC PRO TUNC v. ORLANDO TORRES, Jr. and ANAILDA MALAVE, Defendants P ARKTON ENTERPRISES, INC. Petitioner v. DAVID A. KRULAC and DIANE E. KRULAC,andCUMBERLAND COUNTY TAX BUREAU, Respondents PARKTON ENTERPRISES. INC.'S ANSWER TO DAVID A. AND DIANE E. KRULAC'S POST TRIAL MOTION Parkton Enterprises, Inc. (hereinafter "Parkton") by and through its attorneys, James, Smith, Dietterick & Connelly, LLP, presents this Answer to David A. and Diane E. Krulacs' (hereinafter "Krulacs") Post Trial Motion as follows: I. Answer to Krulac's Motion to Amend Order to Add Additional Relief Agreed Upon by the Parties. I. Admitted. Parkton has no objection to Your Honorable Court granting the additional agreed upon relief of the parties as set forth in I.C.1., on Pages 10 and II of the Stipulation of Facts, requiring Parkton to pay the full amount of the back taxes due within thirty (30) days of the date the Order shall become final. 2. Admitted, Parkton has no objection to Your Honorable Court granting the additional agreed upon relief, as described in detail above, 3. Admitted. Parkton has no objection to Your Honorable Court granting the additional agreed upon relief, as described in detail above. II. Answer to Krulacs' Motion requesting Reversal of Order and Entry of Judgment in Favor of Krulacs, I. Denied. Parkton respectfully represents that Your Honorable Court did not err in applying the doctrine of "Common Sense Business Practices" to require the Tax Claim Bureau to provide notice of the sale to Parkton. 2. Denied. Even though the Tax Claim Bureau providtJd notice to the record owners, Torres and Malave, within the statutory time period, the Tax Claim Bureau had notice that of the upcoming sheriff sale. Using "common sense business practices", the Tax Claim Bureau, being aware the property was going to be sold at sheriff sale, should have determined if the property had been sold at sheriff sale and further determined who the new owner was. 3. Denied. The owner of the property must receive actual notice of the sale from the Tax Claim Bureau in order for the owners' interest to be divested by a tax sale. Mennonite Board of Missions v. Adams; 462 U.S. 791,103 S. Ct. 2706 (U.S. 1983). 4. Denied. The "common sense business practices" can be applied to situations where the Tax Claim Bureau was notified of an upcoming sheriff sale and should have used common sense business practices to determine ifthe property had been sold before the upset sale. Regardless of whether the Tax Claim Bureau served all the notices on the record owner at the time the notices were sent, Parkton did not receive actual notic(: of the Tax Sale therefore its ownership in the property could not be divested by the Tax Salt:. See, Mennonite Board. 5. Denied. The Tax Claim Bureau could have easily ascertained the results of the sheriff sale and the buyer of the property. Moreover, the Krulacs, as the bidder at the Tax Sale, had responsibility to search the title to the property prior to bidding. Pennsylvania law is clear that "[i]n all public sales ofIand, the rules of caveat emptor, let the buyer beware, shall apply.. ," 72 P.S. S 5931 (2002). Additionally, the risk that a tax bureau negligently performed the search, or that title status changed between the time the tax bureau performed the search and the date of sale, must be borne by the purchasers. Robert E. Plank et. aI. v. Monroe County Tax Claim Bureau, 735 A.2d 178 (P A, Comwlth. 1999). 6. For the foregoing reasons, Parkton requests Your Honorable Court to deny the Krulacs Post Trial Motion and to uphold the Order of October 15, 2003. Respectfully submitted, JAMES, SMIT J By: Scott A. Dietterick, Esquire Pa. J.D. # 55650 Kimberly A. DeWitt, Esquire Pa. J.D. # 89705 Attorneys for Parkton P.O. Box 650 Hershey, P A 17033 (717) 533-3280 .- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID A. KRULAC and DIANE E. KRULAC, Plaintiffs v. P ARKTON ENTERPRISES, INe., Defendant CIVIL ACTION-LAW NO. 02-5973 QUIET TITLE ACTION THE CUMBERLAND COUNTY TAX : CLAIM BUREAU, Plaintiff, NO. 02-4847 PETITION TO SET ASIDE TAX SALE, NUNC PRO TUNC v, ORLANDO TORRES, Jr. and ANAILDA MALA VB, Defendants P ARKTON ENTERPRISES, INe. Petitioner v. DAVID A. KRULAC and DIANE E. KRULAC, and CUMBERLAND COUNTY TAX BUREAU, Respondents CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Answer to David A. and ~i8Re E. Krul:1J~ ~tion was served via United States First Class Mail, postage pre-paid, this ~ day of 2003, upon the following: Dale F, Shugart, Jr, 35 East High Street, Suite 203 Carlisle, PA 17013 Stephen D. Tiley, Solicitor Cumberland County Tax Claim Bureau 1 Courthouse Square Carlisle, P A 17013 Respectfully submitted, By: LLY,LLP, JAMES, SMITH, D Sc . D etterick, Esquire Pa, I.D. # 55650 Kimberly A. DeWitt, Esquire Pa, I.D, # 89705 P,O, Box 650 Hershey, P A 17033 - (j co 0 C c...) n "'~~ ;,~ -"f'., "::J mA-:, ~ ..n "?-, ",1 ~-' L.. ~_ , ',' C/j<: Ci, "~';(J -<.", , !"CC/ .''0 ..~ - t, " -n :t: -, -~ .-~J C~ ~t~~ ':? (jrT1 >'c: --I Z ,=> Sj =2 .t:'" -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA DAVID A. KRULAC and DIANE E. KRULAC, Plaintiffs CIVIL ACTION-LAW No. 02-5973 v. QUIET TITLE ACTION PARKTON ENTERPRISES, INC., Defendant THE CUMBERLAND COUNTY TAX CLAIM BUREAU, Plaintiff. NO. 02-4847 PETITION TO SET ASIDE TAX SALE, NUNC PRO TUNC v. ORLANDO TORRES, Jr. and ANAILDA MALAVE, Defendants PARKTON ENTERPRISES, INC. Petitioner v. DAVID A. KRULAC and DIANE E. KRULAC, and CUMBERLAND COUNTY TAX BUREAU, Respondents PARKTON ENTERPRISES. INC.'S ANSWER TO CUMBERLAND COUNTY TAX CLAIM BUREAU'S POST TRIAL MOTION Parkton Enterprises, Inc. (hereinafter "Parkton") by and through its attorneys, James, Smith, Dietterick & Cohnelly, LLP, presents this Answer to the Cumberland County Tax Claim Bureau's (hereinafter "Tax Claim Bureaus") Post Trial Motion as follows: 1. Denied. Patkton respectfully represents that Your Honorable Court did not err in finding that the Tax Clmm Bureau was required to provide notic,~ of the sale to Parkton. 2. Denied. The Tax Claim Bureau did provide notice to the record owners, Torres and Malave, within the statutory time period, however, that is irrelevant to the fact that Parkton, the owner at the time of the Tax Sale, did not receive notice. The Supreme Court's decision in Mennonite Board v. Adams requires that the owner of the property receive actual notice of the sale from the tax claim bureau in order for the owners' interest to be divested by a tax sale. 462 U.S. 791, 103 S. Ct. 2706 (U.S, 1983). 3. Denied. The Tax Claim Bureau had notice that the property was going to sheriff sale pursuant to the Rule 3129.2 notice. Based on the notice, the Tax Claim Bureau, being aware the property was scheduled to be sold at sheriff sale, should have d,~termined if the property had been sold and further determined who the new owner of the property was. 4. Denied. The decision in Gladstone v. Federal National Mortgage Association, 819 A.2d 171 (Pa. Commw. 2003) can be analogized to this case, since in both situations the Tax Claim Bureau had information which would enable the Tax Claim Bureau to use "common sense business practices" to determine who was required to receive notice of an upcoming tax sale. Again, regardless ofwnether the Tax Claim Bureau served all the notices on the record owner at the time the notices were sent, Parkton did not receive actual notice of the Tax Sale and therefore its ownership in the prdperty could not be divested by the Tax Sale. See, Mennonite Board. 5. Denied. Your Honorable Court's Order does not require the Tax Claim Bureau to perform a title search the morning of the tax sale on the dozens of properties that are on the sale list, moreover, the Tax Claim Bureau will receive the amounts due for the back taxes in either situation. In essence, your Honorable Court's Order does not detrimentally affect the interest of the Tax Claim Burllau in any appreciable way. 6. For the foregoing reasons, Parkton requests Your Honorable Court to deny the Krulacs Post Trial Motion and to uphold the Order of October 15, 2003. Respectfully submitted, JAMES, SMITH, DIETTER\CK~ & ~ONNELL Y, LLP, By: ~ a, cxr.(t{~ Scott A. Dietterick, Esquire Pa. I.D. # 55650 Kimberly A. DeWitt, Esquire Pa. I.D. # 89705 Attorneys for Parkton P.O. Box 650 Hershey, P A 17033 (717) 533-3280 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA DAVID A. KRULAC and DIANE E. KRULAC, Plaintiffs v. P ARKTON ENTERPRISES, INC., Defendant ; CIVIL ACTION-LAW NO. 02-5973 QUIET TITLE ACTION THE CUMBERLAND COUNTY TAX ; CLAIM BUREAU, Plaintiff, NO. 02-4847 PETITION TO SET ASIDE TAX SALE, NUNC PRO TUNC v, ORLANDO TORRES, Jr. and ANAILDA MALAVE, Defendants P ARKTON ENTERPRISES, INC. Petitioner v, DAVID A. KRULAC and DIANE E. KRULAC, and CUMBEllAND COUNTY TAX BUREAU, Respondents CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Answer to the Cumberland County Tax Claim Bur~ost Trial Motion was served via United States First Class Mail, postage pre- paid, this ~ day of yY\'t:X.r', 2003, upon the following: Dale F. Shugart, Jr. 35 East High Street, Suite 203 Carlisle, PA 17013 Stephen D, Tiley, Solicitor Cumberland County Tax Claim Bureau I Courthouse Square Carlisle,PA 17013 Respectfully submitted, JAMES, SMITH, DIETTERICK, By; terick, Esquire Pa, LD. # 5 50 Kimberly A. DeWitt, Esquire Pa. LD. # 89705 P,O, Box 650 Hershey, P A 17033 ... t) C;, (~ C (.... ~. ,- :<,,'~ ;1"': -0 ll_~ .::> c n1j, "..-. " ,'. --;.- , ~ t I Z CJ OJ <or -< " , ~l~;; v " ~- ~ .~~~ :fC -Cj '-1? ~,~ rn :x> c~ z -::> ?P ~ .- -< PARKTON ENTERPRISES, INC., PETITIONER v, DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, and CUMBERLAND COUNTY TAX CLAIM BUREAU, RESPONDENTS : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYL V ANI!I., 02-4847 CIVIL TERM PETITION TO SET ASIDE TAX SALE ---------------------------------------------------- DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, PLAINTIFFS v. PARKTON ENTERPRISES, INC" DEFENDANT V, ORLANDO TORRES, JR. and ANAILDA MALAVE, DEFENDANTS : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA ~ _~ CIVIL TERM ~~~~ITLE IN RE: POST-TRIAL MOTIONS ORDER OF COURT AND NOW, this (s-t- day of December, 2003, IT IS ORDERED: (1) Except with respect to paragraph 5 infra, the post-trial motions of David A. Krulac and Diane E. Krulac, and the Cumberland County Tax Claim Bureau to the order of October 15, 2003, ARE DENIED. 02-4847 CIVIL TERM 02-5973 CIVIL TERM (2) The petition of Parkton Enterprises, Inc., to proceed nunc pro tunc to set aside an upset tax sale, IS GRANTED. (3) The upset tax sale on September 26, 2002, at which the Cumberland County Tax Claim Bureau sold 705, Erford Road, East Pennsboro Township, Cumberland County, Pennsylvania, to David A. Krulac and Diane E. Krulac, IS SET ASIDE, (4) Title to 705 Erford Road, East Pennsboro Township, Cumberland County, Pennsylvania, Cumberland County Tax Parcel No. 09-16-1050-166, IS QUIETED in Parkton Enterprises, Inc., under a deed from the Sheriff of Cumberland County dated September 24, 2002, and recorded September 25, 2002, in Cumberland County Deed Book 253, Page 3573. David A. Krulac and Diane E. Krulac, husband and wife, are forever barred from asserting any claim or interest in or to any portion of the premises inconsistent with the ownership of Parkton Enterprises, Inc. (5) Parkton Enterprises, Inc. shall pay to the Cumberland County Tax Claim Bureau the full amount necessary to pay all back taxes owed to the Bureau on the premises for calendar years 2000 and 2001, within thirty (30) days of any date this order shall become final. (6) The Cumberland County Tax Claim Bureau shall refund the sum of $7,268,74 to the Krulacs within thirty (30) days of any date this order shall become final and the Tax Claim Bureau receives payment from Parkton Enterprises, Inc., of all taxes, costs, and interest for calendar years 2000 and 2001. 02-4847 CIVIL TERM 02-5973 CIVIL TERM Edgar B. Bayley, J, Kimberly A. DeWitt, Esquire Scott A. Dietterick, Esquire For Parkton Enterprises, Inc. / Dale F, Shughart, Jr., Esquire For David A. Krulac and Diane E. Krulac Stephen D. Tiley, Esquire For Cumberland County Tax Claim Bureau :sal PARKTON ENTERPRISES, INC" PETITIONER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, and CUMBERLAND COUNTY TAX CLAIM BUREAU, RESPONDENTS 02-4847 CIVIL TERM PETITION TO SET ASIDE TAX SALE DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PARKTON ENTERPRISES, INC" DEFENDANT 02-5973 CIVIL TERM QUIET TITLE V. ORLANDO TORRES, JR. and ANAILDA MALAVE, DEFENDANTS IN RE: POST-TRIAL MOTIONS OPINION AND ORDER OF COURT Bayley, J., December 1,2003:-- On October 15, 2003, following a bench trial on a petition to set aside a tax sale and an action to quiet title, an order was entered supported by a comprehensive opinion, David A. Krulac and Diane E. Krulac, and the Cumberland County Tax Claim 02-4847 CIVIL TERM 02-5973 CIVIL TERM Bureau filed post-trial motions from the order. Following a review of the post-trial motions and the supporting briefs, and the brief in opposition by Parkton Enterprises, Inc,,' we are satisfied that the order was properly entered. The opinion filed in support thereof is incorporated herein in support of the denial of the: post-trial motions. The parties point out that we neglected to include in the order o'F October 15, 2003, their stipulation that if Parkton Enterprises, Inc, was successful it should be ordered to pay back taxes within thirty days of any final order. We will add that stipulated provision to the following order. ORDER OF COURT AND NOW, this I ~ \- day of December, 2003, IT IS ORDERED: (1) Except with respect to paragraph 5 infra, the post-trial motions of David A. Krulac and Diane E. Krulac, and the Cumberland County Tax Claim Bureau to the order of October 15,2003, ARE DENIED. (2) The petition of Parkton Enterprises, Inc., to proceed nunc pro tunc to set aside an upset tax sale, IS GRANTED. (3) The upset tax sale on September 26, 2002, at which the Cumberland County Tax Claim Bureau sold 705 Erford Road, East Pennsboro Township, Cumberland County, Pennsylvania, to David A. Krulac and Diane E, Krulac, IS SET ASIDE, (4) Title to 705 Erford Road, East Pennsboro Township, Cumberland County, 1 Oral argument was waived. -2- 02-4847 CIVIL TERM 02-5973 CIVIL TERM Pennsylvania, Cumberland County Tax Parcel No. 09-16-1050-166, IS QUIETED in Parkton Enterprises, Inc., under a deed from the Sheriff of Cumberland County dated September 24, 2002, and recorded September 25, 2002, in Cumberland County Deed Book 253, Page 3573. David A. Krulac and Diane E. Krulac, husband and wife, are forever barred from asserting any claim or interest in or to any portion of the premises inconsistent with the ownership of Parkton Enterprises, Inc. (5) Parkton Enterprises, Inc, shall pay to the Cumberland County Tax Claim Bureau the full amount necessary to pay all back taxes owed to the Bureau on the premises for calendar years 2000 and 2001, within thirty (30) days of any date this order shall become final. (6) The Cumberland County Tax Claim Bureau shall refund the sum of $7,268,74 to the Krulacs within thirty (30) days of any date this order shall become final and the Tax Claim Bureau receives payment from Parkton Enterprises, Inc., of all taxes, costs, and interest for calendar years 2000 and 2001. , , Kimberly A. DeWitt, Esquire Scott A. Dietterick, Esquire For Parkton Enterprises, Inc. f -3- 02-4847 CIVIL TERM 02-5973 CIVIL TERM Dale F, Shughart, Jr" Esquire For David A. Krulac and Diane E. Krulac Stephen D. Tiley, Esquire For Cumberland County Tax Claim Bureau :sal -4- t fr u., ~ ~ t -<:: ~{~ , PARKTON ENTERPRISES, INC.: IN THE COURT OF COMMON PLEAS petitioner OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAVID A. KRULAC and DIANE E. KRULAC,huSband and wife, and CUMBERLAND COUNTY TAX CLAIM BUREAU, Respondents 02-4847 CIVIL TERM PETITION TO SET ASIDE TAX SALE DAVID A. KRULAC and DIANE E. KRULAC, husband wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. 02-5973 CIVIL TERM ~ QUIET TITLE PARKTON ENTERPRISES, INC.: Defendant v. ORLANDO TORRES, JR. and ANAILDA MALAVE, Defendants NOTICE OF APPEAL Notice is hereby given that, pursuant 1:0 Pa.R.A.P. 512, the Cumberland County Tax Claim Bureau, Respondent in the proceedings docketed to No. 02-4847 Civil Term, above captioned, and David A. Krulac and Diane E. Krulac, husband and wife, Respondents in the proceedings docketed to 02-4847, above captioned, and Plaintiffs in the consolidated proceedings docketed to 02-5973, above captioned, Appeal to the Commonwealth Court of pennsylvania from the Order entered in this matter on the 1st day of December, 2003. The Order has been entered in the docket, as evidenced by the attached copy of the docket entries. December 19, 2003 ~l/t~ ~ ~ -z ~ S~ph n D. Tiley, Assistant Cumberland County Solicitor 5 South Hanover Street Carlisle, PA 17013 (717) 243-5838 Attorney I.D. 32318 Attorney for Cumberland County Tax Claim Bureau ~Jt 35 East High Street, e 203 Carlisle, PA 17013 (717) 241-4311 Attorney I.D. 19373 Attorney for David A. Krulac and Diane E. Krulac PYS510 Cumberland County Prothonotary's Office Civil Case Print Page 1 2002-04847 PETITION (vs) CUMBERLAND COUNTY TAX CLAIM Reference No. . : Case Type.....: PETITION Judgment...... .00 Judge Assigned: BAYLEY EDGAR B Disposed Desc. : ------------ Case Comments ------------- Filed........ : Time... . . . ... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 10/04/2002 8:44 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info CUMBERLAND COUNTY PETITIONER TILEY STEPHEN D TAX CLAIM BUREAU ******************************************************************************** * Date Entries * ******************************************************************************** 10/04/2002 10/04/2002 11/04/2002 11/04/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - PETITION FOR CONFIRMATION OF UPSET TAX SALE ------------------------------------------------------------------- CONFIRMATION NISI - DATED 10/4/02 - IN RE PETITION OF CONFIRMATION OF UPSET TAX SALE - IT IS ORDERED AND DECREED THAT THE SAID SALE BY THE CUMBERLAND COUNTY TAX CLAIM BUREAU SHALL BE CONFIMED ABSOLUTELY UNLESS ANY OBJECTIONS OR EXCEPTIONS TO THE SALE ARE FILED - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- ENTRY OF APPEARANCE FOR PETITIONER - BY STAURT WINNEG ESQ AND MARK J UDREN ESQ FOR PETITIONER ------------------------------------------------------------------- OBJECTION AND EXCEPTIONS TO CONFIRMATION OF UPSET TAX SALE OF 9/26/02 FOR PREMISES COMMONLY KNOWN AS 317 STATE STREET WEST FAIRVIEW TWP CUMBERLAND COUNTY PA PARCEL NO 45-17-1044-140 - BY STAURT WINNEG ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION - FOR PROPERTY OF LAWRENCE MARRA AND FRANCESCA MARRA - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION FOR PROPERTY OF RHODA ALTHOUSE - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION FOR PROPERTY OF JOHN ROBINSON - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION FOR PROPERTY OF TEHLMA MCMULLEN TRUST - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION FOR THE PROPERTY OF ROLDAND D STAFFORD ADN JODY M STAFFORD - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION FOR PROPERTY OF FRANKLIN F MILLER AND ANNA M MILLER - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION FOR PROPERTY OF ROGER L LOCKBAUM - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION FOR PROPERTY OF PAUL MOORE - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION FOR PROPERTY OF HEATHER LEACH - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION FOR PROPERTY OF CHARLES D GALASPY AND KANDICE L GALASPY - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION FOR ORLANDO TORRES JR AND ANAILDA MALAVE - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMATION FOR PROPERTY OF CURVIN L SMITH AND RUTH N SMITH BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- PYS510 Cumberland County Prothonotary's Office Civil Case Print Page 2 2002-04847 PETITION (vs) CUMBERLAND COUNTY TAX CLAIM Reference No. . : Case Type.....: PETITION Judgment. ..... .00 Judge Assigned: BAYLEY EDGAR B Disposed Desc. : ------------ Case Comments ------------- 11/12/2002 12/06/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 11/12/2002 12/27/2002 1/10/2003 1/17/2003 2/03/2003 2/03/2003 2/14/2003 Filed........: 10/04/2002 Time....... ..: 8:44 Execution Date 0/00/0000 Jury Trial. . . . Disposed Date. 0/00/0000 Higher Crt 1.: Higher Crt 2.: CONFIRMATION NISI DATED CERTIFICATE OF SERVICE FOR ORDER OF 10/4/02 - BY MELISSA F MIXELL ------------------------------------------------------------------- ANSWER - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- FINAL DECREE OF ABSOLUTE CONFIRMATION IS HEREBY ENTERED - IN RE PROPERTY OF LARRY ROSENBERRY JR AND GLORIA ROSENBERRY - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOLUTE CONFIRMATION IS HEREBY ENTERED IN RE PROPERTY OF RHODA ALTHOUSE - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOLUTE CONFIRMATION IS HEREBY ENTERED - IN RE JOHN ROBINSON - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOUTE CONFIRMATION IS HEREBY ENTERED - IN RE LAWRENCE MARRA AND FRANCESCA MARRA - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOLUTE CONFIRMATION IS HEREBY ENTERED - IN RE THELMA MCMULLEN TRUST - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOLUTE CONFIRMATION IS HEREBY ENTERED - IN RE ROLDAND D STAFFORD AND JODY M STAFFORD - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOLUTE CONFIRMATION IS HEREBY ENTERED - IN ROGER L LOCKBAUM - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOLUT CONFIRMATION IS HEREBY ENTERED - IN RE FRANKLIN F MILLER AND ANNA M MILLER - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOLUTE CONFIRMATION IS HEREBY ENTERED - IN RE PROPERTY OF PAUL MOORE BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOLUTE CONFIRMATION IS HEREBY ENTERED - IN RE PROPERTY OF HEATHER LEACH - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOLUT CONFIRMATION IS HEREBY ENTERED - IN RE PROPERTY OF CHARLES D GALASPY AND KANDICE L GALASPY - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOLUTE CONFIRMATION IS HEREBY ENTERED IN RE ORLANDO TORRES JR AND ANAILDA MALAVE BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- FINAL DECREE OF ABSOLUTE CONFIRMATION IS HEREBY ENTERED - IN RE CURVIN L SMITH AND RUTH N SMITH - BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- OBJECTIONS AND EXCEPTIONS TO TAX SALE PURSUANT TO 72 P S 5860.607 B AND D - BY NORMAN M YOFFE ESQ ------------------------------------------------------------------- PETITION FOR CONFIRMATION NISI OF UPSET TAX SALE - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- CONFIRMATION NISI - DATED 1/17/03 - IN RE PETITION FOR CONFIRMATION OF UPSET TAX SALE ~ IT IS ORDERED AND DECREED THAT SAID SALEBY THE CUMBERLAND COUNTY TAX CLAIM BUREAU SHALL BE CONFIRMED ABSOLUTELY UNLESS ANY OBJECTIONS OR EXCEPTIONS TO THE SALE ARE FILED ON OR BEFORE 30 DAYS FROM THE DATE HEREOF - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 1/17/03 ------------------------------------------------------------------- DEFENDANT GENEX PROPERTIES LLC ANSWER TO OBJECTIONS AND EXCEPTIONS TO TAX SALE - BY KURT A BLAKE ESQ ------------------------------------------------------------------- PRAECIPE FOR ENTRY OF APPEARANCE FOR GENEX PROPERTIES LLC DEFT - BY KURT A BLAKE ESQ ------------------------------------------------------------------- ANSWER TO OBJECTIONS AND EXCEPTIONS TO TAX SALE OBJECTIONS OF PYS510 Cumberland ~ounty Prothonotary's Office Clvll Case Prlnt Page 3 2002-04847 PETITION (vs) CUMBERLAND COUNTY TAX CLAIM Reference No. . : Case Type. ....: PETITION Judgment.. .... .00 Judge Assigned: BAYLEY EDGAR B Disposed Desc. : ------------ Case Comments ------------- 3/12/2003 3/17/2003 3/20/2003 3/24/2003 4/04/2003 4/04/2003 4/14/2003 4/14/2003 4/16/2003 4/16/2003 4/29/2003 4/30/2003 5/23/2003 5/23/2003 5/29/2003 Filed........ : Time. . . . . . . . . : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 47-20-1856-027 ON DECEMBER 10/04/2002 8:44 0/00/0000 0/00/0000 5, 2002 SYVIA A STARK OF SAL OF PARCEL - BY STEPHEN D TILEY ESQ ---------------~--------------------------------------------------- PETITION TO SET ASIDE TAX SALE NUNC PRO TUNC - BY SCOTT A DIETTERICK ESQ FOR PLFF ------------------------------------------------------------------- ORDER OF COURT - DATED 3/17/03 - IT IS ORDERED THAT A REULE IS ENTERED AGAINST THE CUMBERLAND COUNTY TAX CLAIM BUREAU DAVID A KRULAC AND DIANE E KRULAC AND ORLANDO TORRES JR AND ANAILDA MALAVE TO SHOW CAUSE WHY THE WITHIN PETITION TO SET ASIDE A TAX SALE NUNC PRO TUNC SHOULD NOT BE GRANTED RULE RETURNABLE 25 DAYS AFTER SERVICE - BY THE COURT EDGAR B BAYLEY J COPIES MAILED ----------------------------------------------~-------------------- ANSWER WITH NEW MATTER AND CROSS CLAIM OF RESPONDENTS DAVID A KRULAC AND DIANE E KRULAC - BY DALE F SHUGHART JR ESQ ------------------------------------------------------------------- CERTIFICATE OF SERVICE TO SET ASIDE TAX SALE NUNC PRO TUNC AND ORDER OF COURT - BY SCOTT A DIETTERICK ESQ ------------------------------------------------------------------- PRAECIPE FOR LISTING CASE FOR TRIAL - BY NORMAN M YOFFEE ESQ ------------------------------------------------------------------- PETITION OF DEFT GENEX PROPERTIES LLC TO DISQUALIFY COUNSEL FOR THE PLFF - BY KURT A BLAKE ESQ FOR DEFT ------------------------------------------------------------------- ORDER OF COURT - DATED 4/14/03 - NON-JURY TRIAL SHALL BE CONDUCTED IN CR 2 8:45 AM 5/29/03 - BY EDGAR B BAYLEY J - COPIES MAILED 4/14/03 ------------------------------------------------------------------- ORDER OF COURT - DATED 4/14/03 - IN RE PETITION OF DEFENDANT GENEX PROPERTIES LLC TO DISQUALIFY COUNSEL FOR THE PLAINTIFF - RULE IS ENTERED AGAINST PLAINTIFF TO SHOW CAUSE WHY HER COUNSEL NORMAN M YOFFE ESQ SHOULD NOT BE DISQUALIFIED - RULE RETURNABLE 15 DAYS FROM THE DATE OF SERVICE - ANY ANSWER FILED SHALL BE FORWARDED BY THE PROTHONOTARY TO CHAMBERS - BY EDGAR B BAYLEY J - COPIES MAILED 4/14/03 SUBMISSION OF CONSOLIDATED CASES ON STIPULATED FACTS PURSUANT 0 PA R C P 1038.1 - BY DALE F SHUGHART JR SCOTT A DIETTERICK ESQ AND STEPHEN D TILEY ESQ ------------------------------------------------------------------~ ORDER OF COURT - DATED 4/16/03 - IN RE SUBMISSION OF CONSOLIDATED CASES ON STIPULATED FACTS PURSUANT - EXECUTED BY COUNSEL FOR THE RESPECTIVE PARTIES IN INTEREST - TRIAL OF THE MATTER SHALL BE HELD ON 5/28/03 IN CR CR 2 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA ON 1:30PM - BY THE COURT EDGAR B BAYLEY J COPIES MAILED ANSWER OF PLFF TO PETITION OF GENEX PROPERTIES LLC TO DISQUALIFY PLFF'S COUNSEL - BY NORMAN M YOFFE ESQ ------------------------------------------------------------------- ORDER OF COURT - DATED 4/30/03 - FOLLOWING A REVIEW OF THE PETITION OF DEFT GENE X PROPERTYS LLC TO DISQUALIFY COUNSEL FOR PLFF AND THE ANSWER FILED THERETO IT IS ORDERED THAT A HEARING SHALL BE CONDUCTED IN CR 2 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA AT 1;30 PM 5/22/03 FOR THE PURPOSE OF INTRODUCING ANY EVIDENCE NECESSARY TO RESOLVE THIS DISPUTE AND ARGUMENTS OF THE MERITS - BY THE COURT EDGAR B BAYLEY J COPIES MAILED ------------------------------------------------------------------- ORDER OF COURT - DATED 5/23/03 - IN RE PETITION OF DEFT GENEX PROPERTIES LLC TO DISQUALIFY COUNSEL FOR PLFF - THE PETITION OF GENEX PROPERTIES LLC TO DISQUALFY COUNSEL FOR PLFF IS DISMISSED - BY THE COURT EDGAR B BAYLEY J COPIES MAILED ------------------------------------------------------------------- OPINION AND ORDER OF COURT - DATED 5/23/03 - IN RE PETITION TO DEPOSIT ESTIMATED JUST COMPENSATION - BY THE COURT J WESLEY OLER JR J COPIES MAILED ------------------------------------------------------------------- ORDER OF COURT - DATED 5/29/03 - IN RE SETTLEMENT AGREEMENT DATED 5/29/03 THE UPSET TAX SALE OF TAX PARCEL NO 47-20-1856-027 SHALL Cumberland County Prothonotary's Office Civil Case Print 2002-04847 PETITION (vs) CUMBERLAND COUNTY TAX CLAIM PYS510 Page 4 Reference No,.: Case Type.. ...: PETITION Judgment...... .00 Judge Assigned: BAYLEY EDGAR B Disposed Desc.: . ------------ Case Comments ------------- 10/04/2002 8:44 0/00/0000 0/00/0000 7/24/2003 8/01/2003 10/15/2003 10/24/2003 10/27/2003 10/28/2003 12/01/2003 Filed........ : Time. . ,... .. . : Execution Date Jury Trial. . . . Dtsposed Date. Hlgher Crt 1.: Higher Crt 2.: BE NULL AND VOID AND THE TAX CLAIM BURE,I'.U SHALL REIMBURSE GENEX PROPERTYIES LLC THE PORTION OF THE PRICE PAID AS SET FORTH IN THE SETTLEMENT AGREEMENT AND SHALL RETAIN THE PORTION OF THE PRICE PAID AS SET FORITH IN THE SAID SETTLEMENT AGREEMENT - BY THE COURT EDGAR B BAYLEY J COPIES MAILED ------------------------------------------------------------------~ PRAECIPE TO WITHDRAW OBJECTIONS/EXCEPTIONS TO CONFIRMATION OF UPSET TAX SALE OF 9/26/02 FOR PREMISES COMMONLY KNOWN AS 317 STATE STREET WEST FAIRVIEW TOWNSIP CUMBERLAND COUNTY PARCEL NO 45-17-1044-140 - BY MARK J UDREN ESQ ESQ FOR PLFF ------------------------------------------------------------------- PRAECIPE FOR DECREE OF ABSOLUTE CONFIRMI'.TION - BY STEPHEN D TILEY ESQ ------------------------------------------------------------------- OPINION AND ORDER OF COURT - IN RE: PETITION TO SET ASIDE TAX SALE AND ACTION TO 9UIET TITLE AND NOW THIS 15TH DAY OF OCTOBER 2003 IT IS ORDERED 1) THE PETITION OF PARKTON ENTERPRISES INC TO PROCEED NUNC PRO TUNC TO SET ASIDE AN UPSET TAX SALE IS GRANTED (2) THE UPSET TAX SALE ON SEPTEMBER 26, 2002 AT WHICH THE CUMBERLAND COUNTY TAX CLAIM BUREAU SOLD 705 ERFORD ROAD EAST PENNSBORO TOWNSHIP CUMBERLAND COUNTY PENNSYLVANIA TO DAVID A KRULAC AND DIANE E KRULAC IS SET ASIDE (3) TITLE OF 705 ERFORD ROAD EAST PENNSBORO TOWNSHIP CUMBERLAND COUNTY PENNSYLVANIA CUMBERLAND COUNTY TAX PARCEL NO 09-16-1050-166 IS QUIETED IN PARKTON ENTERPRISES INC UNDER A DEED FROM THE SHERIFF OF CUMBERLAND COUNTY DATED SEPTEMBER 24, 2002 AND RECORDED SEPTEMBER 25, 2002, IN CUMBERLAND COUNTY DEED BOOK 253 PAGE 3573 DAVID A KRULAC AND DIANE E KRULAC HUSBAND AND WIFE ARE FOREVER BARRED FROM ASSERTING ANY CLAIM OR INTEREST IN OR TO ANY PORTION OF THE PREMISES INCONSISTENT WITH THE OWNERSHIP OF PARKTON ENTERPRISES INC (4) THE CUMBERLAND COUNTY TAX CLAIM BUREAU SHALL REFUND THE SUM OF $7,268.74 TO THE KRULACS WITHIN THIRTY (30) DAYS OF ANY DATE THIS ORDER SHALL BECOME FINAL AND THE TAX CLAIM BUREAU RECEIVES PAYMENT FROM PARKTON ENTERPRISES INC OF ALL TAXES COSTS AND INTEREST FOR CALENDAR YEARS 2000 AND 2001 (5) A COPY OF THIS ORDER AND OPINION MAY BE RECORDED IN THE OFFICE OF THE RECORDER OF DEEDS OF CUMBERLAND COUNTY UPON PAYMENT OF THE APPLICABLE FEE BY THE COURT EDGAR B BAYLEY J COPIES MAILED ------------------------------------------------------------------- POST TRIAL MOTION OF DAVID A AND DIANE E KRULAC - BY DALE F SHUGHART JR ESQ ------------------------------------------------------------------- POST TRIAL MOTION OF CUMBERLAND COUNTY TAX CLAIM BUREAU ------------------------------------------------------------------- ORDER OF COURT - DATED 10/28/03 - IN RE POST TRIAL MOTIONS - IT IS ORDERED THAT THE KRULACS AND THE CUMBERLAND COUNTY TAX CLAIM BUREAU SHALL FILE A BRIEF IN CHAMBERS NOT LATER THAT 15 DAYS FROM THIS DATE IN SUPPORT OF THEIR POST-TRIA,LS MOTIONS - PARKTON ENTERPRISES SHALL FILE A RESPONSE BRIEF IN CHAMBERS NOT LATER THAN 30 DAYS FROM THIS DATE - ANY PARTY WHO WISHES ORAL ARGUMENT ON THE POST-TRIAL MOTIONS SHOULD ASK FOR ORAL ARGUMENT AT THE BEGINNING OF THEIR BRIEF - BY THE COURT EDGAR B BAYLEY J COPIES MAILED ------------------------------------------------------------------- ORDER OF COURT - IN RE: POST-TRIAL MOTIONS - DECEMBER 1, 2003 - AND NOW THIS 1ST DAY OF DECEMBER 2003, IT IS ORDERED (1) EXCEPT WITH RESPECT TO PARAGRAPH 5 INFRA THE FOST-TRIAL MOTIONS OF DAVID A KRULAC AND DIANE E KRULAC AND THE CUMBERLAND COUNTY TAX CLAIM BUREAU TO THE ORDER OF OCTBER 15, 2003 ARE DENIED (2) THE PETITION OF PARKTON ENTERPRISES INC TO PROCEED NUNC PRO TUNC TO SET ASIDE AN UPSET TAX SALE IS GRANTED (3) THE UPSET TAX SALE ON SEPTEMBER 26, 2002 AT WHICH THE CUMBERLAND COUNTY TAX CLAIM BUREAU SOLD 705 ERFORD RD EAST PENNSBORO TOWNSHIP CUMBERLAND COUNTY PENNSYLVANIA CUMBERLAND COUNTY TAX PARCEL NO 09-16-1050-166 IS QUIETED IN PARKTON ENTERPRISES INC UNDER A DEED FROM THE SHERIFF OF CUMBERLAND COUNTY DATED SEPTEMBER 24, 2002 AND RECORDED SEPTEMBER 25, 2002 IN PYS510 Cumberland County Prothonotary's Office Civil Case Print Page 5 2002-04847 PETITION (vs) CUMBERLAND COUNTY TAX CLAIM Reference No. . : Case Type.....: PETITION Judgment...... .00 Judge Assigned: BAYLEY EDGAR B Disposed Desc. : ------------ Case Comments ------------- Filed. . . . . . . . : Time. . .... . . . : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Hiqher Crt 2.: CUMBERLAND COUNTY DEED BOOK 253 PAGE 3573 DAVID A KRULAC AND DIANE E KRULAC HUSBAND AND WIFE ARE FOREVER BARRED FROM ASSERTIN ANY CLAIM OR INTEREST IN OR TO ANY PORTION OF THE PREMISES INCONSISTENT WITH THE OWNERSHIP OF PARKTON ENTERPRISES INC (5) PARKTON ENTERPRISES INC SHALL PAY TO THE CUMBERLAND COUNTY TAX CLAIM BUREAU THE FULL AMOUNT NECESSARY TO PAY ALL BACK TAXES OWED TO THE BUREAU ON THE PREMISES FOR CALENDAR YEARS 2000 AND 2001 WITHIN THIRTY(30) DAYS OF ANY DATE THIS ORDER SHALL BECOME FINAL (6) THE CUMBERLAND COUNTY TAX CLAIM BUREAU SHALL REFUND THE SUM OF 57,268.74 TO THE KRULACS WITHIN THIRTY (30) DAYS OF ANY DATE THIS ORDER SHALL BECOME FINAL AND THE TAX CLAIM BUREAU RECEIVES PAYMENT FROM PARKTON ENTERPRISES INC OF ALL TAXES COSTS AND INTEREST FOR CALENDAR YEARS 2000 AND 2001 BY THE COURT EDGAR B BAYLEY J 10/04/2002 8:44 0/00/0000 0/00/0000 COPIES MAILED - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * End of Case Information .. ******************************************************************************** T'.':-':- " ;\.J < In Tf.'st;'o:;., ~c;., ;, :~ rr.rnl ;". ~d 'h- ' .....11 t \..1 3':i:'1 G, -; U ~~:: ".;;j' ~:'a. This ....J< Day o;0k_n' -~r<2;I .., . ., 123 ~:-'~1,:/, ~'/~ ' ," ""~'"""""'_"ff'L-I.k<-"[AJf;lC:"-i.f....... Prothcm{):a;, Cumberland County Prothonotary's Office Civil Case Print 2002-05973 KRULAC DAVID A ET AL (vs) PARKTON ENTERPRISES INC PYS510 Page 1 Reference No. . : Case Type.....: COMPLAINT -QUIET TITLE Judgment...... .00 Judge Assigned: BAYLEY EDGAR B Disposed Desc. : ------------ Case Comments ------------- Filed........ : Time. . . . . . . . . : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 12/17/2002 10:03 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info KRULAC DAVID A POBOX 1064 MECHANICSBURG PA 17055 KRULAC DIANE E POBOX 1064 MECHANICSBURG PA 17055 PARKTON ENTERPRISES INC 11350 MCCORMICK ROAD SUITE 200 HUNT VALLEY MD 21031 PLANITIFF SHUGHART DALE F JR PLANITIFF SHUGHART DALE F JR DEFENDANT DIETTERICK SCOTT A ******************************************************************************** * Date Entries * ******************************************************************************** ,.'[,' 12/17/2'002 1/06/2003 1/06/2003 4/17/200 10/15/2003 10/15/2003 10/24/2003 10/24/2003 ), - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - COMPLAINT IN QUIE TITLE ------------------------------------------------------------------- ENTRY OF APPEARANCE FOR DEFENTANT BY SCOTT A DIETTERICK ESQ ------------------------------------------------------------------- ACCEPTANCE OF SERVICE OF THE COMPLAINT BY SCOTT A DIETTERICK ESQ ------------------------------------------------------------------- ~ORDER OF COURT - DATED 4/17/03 - SUBMISION OF CONSOLIDATED CASES ,ON STIPULATED FACTS -THE PARTIES IS HEREBY RESCHEDULED TO BE HELD AT CR 2 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA ON 5/28/03 AT 1;30 PM - BY THE COURT EDGAR B BAYLEY J COPIES MAILED ------------------------------------------------------------------- OPINION AND ORDER - IN RE PETITION TO SET ASIDE TAX SALE ACTION TO QUIET TITLE - AND NOW THIS 15TH DAY OF OCTOBER, 2003, IT IS ORDERED (1) THE PETITION OF PARKTON ENTERPRISES, INC., TO PROCEED NUNC PRO TUNC TO SET ASIDE AN UPSET TAX SALE IS GRANTED (2) THE UPSET TAX SALE ON SEPTEMBER 26, 2002 AT WHICH THE CUMBERLAND COUNTY TAX CLAIM BUREAU SOLD 705 ERFORD ROAD, EAST PENNSBORO TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA, TO DAVID A KRULAC AND DIANE E KRULAC IS SET ASIDE (3) TITLE TO 705 ERFORD ROAD EAST PENNSBORO TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA, CUMBERLAND COUNTY TAX PARCEL NO. 09-16-1050-166, IS QUIETED IN PARKTON ENTERPRISES, INC., UNDER A DEED FROM THE SHERIFF OF CUMBERLAND COUNTY DATED SEPTEMBER 24, 2002 AND RECORDED SEPTEMBER 25, 2002, IN CUMBERLAND COUNTY DEED BOOK 253, PAGE 3573. DAVID A DRULAC AND DIANE E. KRULAC, HUSBAND AND WIFE ARE FOREVER BARRED FROM ASSERTING ANY CLAIM OR INTEREST IN OR TO ANY PORTION OF THE PREMISES INCONSISTENT WITH THE OWNERSHIP OF PARKTON ETNERPRISES INC ------------------------------------------------------------------- OPINION AND ORDER CONTINUED --- (4) THE CUMBERLAND COUNTY TAX CLAIM BUREAU SHALL REFUND THE SUM OF $7,268.74 TO THE KRULACS WITHIN THIRTY (30) DAYS OF ANY DATE THIS ORDER SHALL BECOME FINAL AND THE TAX CLAIM BUREAU RECEIVES PAYMENT FROM PARKTON ENTERPRISES INC OF ALL TAXES COSTS AND INTEREST FOR CALENDAR YEARS 2000 AND 2001 (5) A COPY OF THIS ORDER AND OPINION MAY BE RECORDED IN THE OFFICE OF THE RECORDER OF DEEDS OF CUMBERLAND COUNTY UPON PAYMENT OF THE APPLICABLE FEE - BY EDGAR B BAYLEY J - COPIES MAILED 10/15/03 ------------------------------------------------------------------- POST TRIAL MOTION OF DAVID A AND DIANE E KRULAC - BY DALE F SHUGHART JR ESQ ------------------------------------------------------------------- POST TRIAL MOTION OF DAVID A AND DIANE E KRULAC - BY DALE F SHUGHART JR ESQ 10/27/2003 POST TRIAL MOTION PF CUMBERLAND COUNTY TAX CLAIM BUREAU PYS510 Cumberland County Prothonotary's Office Civil Case Print 2002-05973 KRULAC DAVID A ET AL (vs) PARKTON ENTERPRISES INC Page 2 Reference No. . : Case Type. ....: COMPLAINT -QUIET TITLE Judgment...... .00 Judge Assigned: BAYLEY EDGAR B Disposed Desc. : ------------ Case Comments ------------_ Filed........ : Time. . . . . . . . . : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: ------------------------------------------------------------------- ORDER OF COURT - DATED 10/28/03 - IN RE POST TRIAL MOTIONS - THE KURLACS AND CUMBERLAND COUNTY TAX CLAIM BUREAU SHALL FILE A BRIEF IN CHAMBER NOT LATER THAN 15 DAYS FROM THIS DATE IN SUPPORT OF THEIR POST-TRIAL MOTIONS - PARKTON ENTERPRISES SHALL FILE A RESPONDE BRIEF IN CHAMBERS NOT LATER T:;lAN 30 DAYS FROM THIS DATE _ BY ANY PARTY WHO WISHES ORAL ARGUMENT ON THE POST-TRIAL MOTIONS SHOULD ASK FOR ORAL ARGUMENT AT THE BEGINNING OF THEIR BRIEF OTHERWISE THE POST TRIAL MOTION WILL BE DECIDED ON BRIEF ONLY - BY THE COURT EDGAR B BAYLEY J COPIES MAILED 10/29/03 --------------------------------------.----------------------------- PARKTON ENTERPRISES INC'S ANSWER TO DAVID A AND DIANE E KRULAC'S POST TRIAL MOTION - BY SCOTT A DIETTERICK ESQ --------------------------------------.--------------------------- PARKTON ENTERPRISES INC'S ANSWER TO Cill1BERLAND COUNTY TAX CLAIM BUREAU'S POST TRIAL MOTION - BY KIMBERLY A DEWITT ESQ -------------------------------------------------------------------- ORDER OF COURT IN RE POST-TRIAL MOTIONS AND NOW THIS 1ST DAY OF DECEMBER 2003 IT IS ORDERED: (1) EXCEPT WITH RESPECT TO PARAGRAPH :; INFRA THE POST-TRIAL MOTIONS OF DAVID A KRULAC AND DIANE E KRULAC AND THE CUMBERLAND COUNTY TAX CLAIM BUREAU TO THE ORER OF OCTOBER 15, 2003, ARE DENIED. (2) THE PETITION OF PARKTON ENTERPRISES INC TO PROCEED NUNC PRO TUNC TO SET ASIDE AN UPSET TAX SALE IS GRANTED (3) THE UPSET TAX SALE ON SEPTEMBER 26 2002 AT WHICH THE CUMBERLAND COUNTY TAX CLAIM BUREAU SOLD 705 ERFORD ROAD EAST PENNSBORO TOWNSHIP CUMBERLAND COUNTY PENNSYLVANIA TO DAVID A KRULAC AND DIANE E KRULAC IS SET ASIDE (4) TITLE TO 705 EROFRD ROAD EAST PENNSBORO TOWNSHIP CUMBERLAND COUNTY PENNSYLVANIA CUMBRLAND COUNTY TAX PARCEL NO 09-16-1050-166 IS QUIETED IN PARKTON ENTERPRISES INC uNDER A DEED FROM THE SHERIFF OF CUMBERLAND COUNTY DATED SEPTEMBER 24 2002 AND RECORDED SEPTEMBER 25 2002 IN CUMBERLAND COUNTY DEED BOOK 253, PAGE 3573. DAVID A KRULAC AND DIANE E KRULAC HUSBAND AND WIFE ARE FOREVER BARRED FROM ASSETING ANY CLAIM OR INTEREST IN OR TO ANY PORTION OF THE PREMISES INCONSISTENT WITH THE OWNERSHIP OF PARKTON ENTERPRISES INC (5) PARKTON ENTERPRISES INC SHALL PAY TO THE CUMBERLAND COUNTY TAX CLAIM BUREAU THE FULL AMOUNT NECESSARY TO PAY ALL BACK TAXES OWED TO THE BUREAU ON THE PREMISES FOR CALENDAR YEARS 2000 AND 2001 WITHIN THIRTY (30) DAYS OF ANY DATE THIS ORDER SHALL BECOME FINAL (6) THE CUMBERLAND COUNTY TAX CLAIM BUREAU SHALL REFUND THE SUM OF $7,268.74 TO THE KRULACS WITHIN THIRTY (30) DAYS OF ANY DATE THI$ ORDER SHALL BECOME FINAL AND THE ~~X CLAIM BUREAU RECEIVES PAYMENT FROM PARKTON ENTERPRISES INC OF ALL TAXES COSTS AND INTEREST FOR CALENDAR YEARS 2000 AND 2001. BY THE COURT EDGAR B BAYLEY JUDGE COPIES MAILED 12/01/03 12/17/2002 , 10:03 0/00/0000 0/00/0000 10/28/2003 11/05/2003 11/05/2003 12/01/2003 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - ***************************************************~~**************************** * Escrow Information * * Fees & Debits Beo Bal Pvmts/Adl End Bal * ********************************~******************~~**************************** 35.00 35.00 .00 .50 .50 .00 5.00 5.00 .00 5.00 5.00 .00 -- - - -- ~~ ~ ~~ -- -- - -- ~~ ~ ~~ _ _ _ T.R!.lLCe~;y FRed,A f;:C i'.DtMlnd 55.50 55.50 In Te~t;mc,ny v:oO'eof, llK,rc u'-'" '! rdY * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *af\l-j.,,:jit\9r$;:~~cW .;;~!~ J:~i.j[t ~t*~::~'.1:;,t:;* ~~. * * * * * * End of Case Information Ie: ~. ^f (j n ~:Y'y'",:i:* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * il'ti!f: **~. ~* *_* J;'k~ ~ *"w.f(-,*".;r..:'*'~'~ * * * * * * ,.., " 1,/<, r: J;-( t;>tJ0A~i1IX,:-:,.. .j..:.~t..~_.,.l.f..~.~.......u... ........... ,.. ./ .p.ro.lhonot~l1I COMPLAINT TAX ON CMPLT SETTLEMENT AUTOMATION JCP FEE PARKTON ENTERPRISES, INC.: petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DAVID A. KRULAC and DIANE E. KRULAC,husband and wife, and CUMBERLAND COUNTY TAX CLAIM BUREAU, Respondents 02-4847 CIVIL TERM PETITION TO SET ASIDE TAX SALE DAVID A. KRULAC and DIANE E. KRULAC, husband wife, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs v. PARKTON ENTERPRISES, INC.: 02-5973 CIVIL TERM Defendant QUIET TITLE v. ORLANDO TORRES, JR. and ANAILDA MALAVE, Defendants PROOF OF SERVICE Dale F. Shughart, Jr., Esquire and Stephen D. Tiley, Esquire hereby certify that on December 19, 2003, they served a true and correct copy of the foregoing Notice of Appeal on the Judge, Court Administrator, and on the Attorneys for the Appellee, by first class mail, postage prepaid, which service satisfies the requirements of Pa.R.A.P.121 and 906, as follows: Honorable Edgar B. Bayley (717) 2,10-6294) Judge's Chambers Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Scott A. Dietterick, Esquire (717 533-3280) Kimberly A. DeWitt, Esquire (717 533-3280) P. O. Box 650 Hershey, PA 17033 (Attorneys for Appellee, parkton Enterprises, Inc.) Orlando Torres, Jr. (telephone number unknown) 705 Erford Road Enola, PA 17325 (Appellees) Anailda Malave (telephone number unknown) 705 Erford Road Enola, PA 17325 (Appellees) Taryn N. Dixon Cumberland County Court Administrator (717 240-6200) Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 * Date: December 19, 2003 s~lef --z~ Assistant Cumberland County Solicitor 5 South Hanover Street Carlisle, PA 17013 (717) 243-5838 Attorney I.D. 32318 Attorney for Cumberland County Tax Claim Bureau ~f Dale F. Shughar J. 35 East High Street, Suite 203 Carlisle, PA 17013 (717) 241-4311 Attorney I.D. 19373 Attorney for David A. Krulac and Diane E. Krulac * NOTE: Case was submitted on Stipulated Facts pursuant to Pa.R.C.p. 1038.1 and therefore no Official Court Reporter took testimony in this case. iCJG *-'l ....c:: ~ :t: U) f'- ~ ~ lJV D g ~ ~ -I--- --< o c- -:'-" c c_ 2~ -, -<. ,....., C'..o = c"-' c:> p': n C) -q -l ":'1::" hl/~ -0111 TjO b1 --{S~ :r:.--n {-~):.~ \.D ~: :_~~; ~;l ~'~ (...') ..,- _-o;:~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID A, KRULAC and DIANE E. KRULAC, Plaintiffs CIVIL ACTION-LAW No. 02-5973 v. QUIET TITLE ACTION P ARKTON ENTERPRISES, INC., Defendant THE CUMBERLAND COUNTY TAX CLAIM BUREAU, Plaintiff. NO. 02-4847 PETITION TO SET ASIDE TAX SALE, NUNC PRO TUNC v, ORLANDO TORRES, Jr. and ANAILDA MALAVE, Defendants P ARKTON ENTERPRISES, INC. Petitioner v. DAVID A, KRULAC and DIANE E. KRULAC, and CUMBERLAND COUNTY TAX BUREAU, Respondents MOTION TO COMPEL POSTING OF SUPERSEDEAS BOND Parkton Enterprises, Inc. (hereinafter "Parkton") by imd through its attorneys, James, Smith, Dietterick & Connelly, LLP, presents this Motion to Require Supersedeas Bond against David and Diane Krulacs (hereinafter "Krulacs") as follows. 1, The above-captioned matter was commenced by the Krulacs filing a Quiet Title Action regarding the property known and numbered as 705 Erford Road, Camp Hil\, Pennsylvania 17100 (hereinafter "Premises") and Parkton, the foreclosing mortgagor on the Premises, filing a Petition to Set Aside Tax Sale to set aside the Tax Sale at which the Premises was sold to the Krulacs, 2. The matters were consolidated and submitted on Stipulated Facts Pursuant to Pa. R,C.P. 1038.1, which were approved by Order of Court dated April 17, 2003 ("Stipulation of Facts"). 3. By Order of this Honorable Court dated October 15, 2003, judgment was granted in favor of Park ton, setting aside the Upset Tax Sale and quieting title to the Premises in Parkton and further ordering Parkton to pay the Cumberland County Tax Claim Bureau (hereinafter "Tax Claim Bureau") all taxes, costs and interest due. 4, On or about October 24, 2003, the Krulacs and the Tax Claim Bureau filed Post-Trial Motions in response to this Honorable Court's Opinion and Order dated October 15, 2003. 5, By Order of Court dated December 1, 2003, the Krulacs' and Tax Claim Bureau's post-trial motions were denied. 6. The Krulacs and the Tax Claim Bureau filed a Notice of Appeal to the Commonwealth Court of Pennsylvania on December 19, 2003, 7. Pursuant to Pennsylvania Rule of Appellate 'Procedure 1733(a), an appeal "operates as a supersedeas only upon the filing with the clerk of the court below of appropriate security.. .." 8. The Tax Claim Bureau is not required to post an appeal bond pursuant to Pennsylvania Rule of Appellate Procedure 1736, which exempts the Commonwealth or any officer thereof from the requirement to post a bond for appeal. Pa.R,A.P. 1736(a) (l). Part (b) of Rule 1736 further states "[ u ]nless otherwise ordered pursuant to this chapter the taking of an appeal by any party specified in subdivision (a) of this rule shall operate as a supersedeas in favor of such party." (emphasis added). Pa.R.A.P. 1736(b). 9. The Tax Claim Bureau will receive its taxes :regardless ofthe outcome of the appeal and it has no legal basis or interest in what happens to the Premises pending the appeal. 10, The Krulacs, as private citizens, can not avail themselves of the automatic supersedeas which applies to the Tax Claim Bureau. II. The purpose of a supersedeas bond is to "maintain the status quo and protect [the winning party] from injury during the appeal period," Commonwealth v, Mayer, 131 Pa. Commw. 64, 569 A.2d 415, 418 (Pa.Cmwlth, 1990). 12. In this matter, the Krulacs' appeal is preventing sale of the Premises by Parkton through a prime selling period and additionally causing Parkton to incur ongoing costs in maintaining the property. 13. Parkton, as foreclosing mortgagor on the Premises, can only recover its debt by reselling the Premises, and the Krulacs' appeal is preventing resale, causing financial harm to Parkton, 14. Parkton believes, and therefore avers, that the value of the Premises is approximately $60,000.00. WHEREFORE, Parkton respectfully requests this Honorable Court to grant Parkton's Motion to Compel Posting of Supersedeas Bond and to require the Krulacs to post a bond in an amount of no less than $60,000,00. By: / Scott A. Diett 'ck, Esquir'~ Pa. J.D. # 55650 P.O. Box 650 Hershey, P A 17033 (717) 533-3280 . . IN THE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYL V ANlA DAVID A. KRULAC and DIANE E. KRULAC, Plaintiffs v, P ARKTON ENTERPRISES, INC., Defendant : CIVIL ACTION-LAW NO, 02-5973 QUIET TITLE ACTION THE CUMBERLAND COUNTY TAX CLAIM BUREAU, Plaintiff NO, 02-4847 PETITION TO SET ASIDE TAX SALE, NUNC PRO TUNC v, ORLANDO TORRES, Jr. and ANAILDA MALAVE, Defendants P ARKTON ENTERPRISES, INe. Petitioner v. DAVID A. KRULAC and DIANE E. KRULAC, and CUMBERLAND COUNTY TAX BUREAU, Respondents CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Motion to Compel Posting of Supersedeas Bond was served via United States First Class Mail, postage pre-paid, this ~day of 'Jf1nWJo--"-'\-, 2004, upon the following: o Dale F, Shugart, Jr, 35 East High Street, Suite 203 Carlisle, PAl 7013 Stephen D. Tiley, Solicitor 5 South Hanover Street Carlisle, PAl 7013 Respectfully submitted, By: ~ ~, ',) H "" (".:.:; C'~ o .oll --; -',~~ ;g ;n C; <) i -:i-') :0'1 '- --. r,) w C') (v.) C/o IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID A. KRULAC and DIANE E. KRULAC, Plaintiffs CIVIL ACTION-LAW No. 02-5973 v. QUIET TITLE ACTION P ARKTON ENTERPRISES, INC., Defendant THE CUMBERLAND COUNTY TAX CLAIM BUREAU, Plaintiff. NO. 02-4847 PETITION TO SET ASIDE TAX SALE, NUNC PRO TUNC v. ORLANDO TORRES, Jr. and ANAILDA MALAVE, Defendants P ARKTON ENTERPRISES, INC. Petitioner v. DAVID A. KRULAC and DIANE E. KRULAC, and CUMBERLAND COUNTY TAX BUREAU, Respondents MOTION FOR RECONSIDERATION OF PARKTON'S MOTION TO COMPEL POSTING OF SUPERSEDEAS BOND Parkton Enterprises, Inc. (hereinafter "Parkton") by and through its attorneys, James, Smith, Dietterick & Connelly, LLP, presents this Motion for Reconsideration of This Honorable Court's Order denying Parkton's Motion to Require Supersedeas Bond against David and Diane Krulacs (hereinafter "Krulacs") as follows. I. The above-captioned matter was commenced by the Krulacs filing a Quiet Title Action regarding the property known and numbered as 705 Erford Road, Camp Hill, Pennsylvania 17100 (hereinafter "Premises") and Parkton, the foreclosing mortgagor on the Premises, filing a Petition to Set Aside Tax Sale to set aside the Tax Sale at which the Premises was sold to the Krulacs. 2. The matters were consolidated and submitted on Stipulated Facts Pursuant to Pa. R.C.P. 1038.1, which were approved by Order of Court dated April 17, 2003 ("Stipulation of Facts"). 3. By Order of this Honorable Court dated October 15, 2003, judgment was granted in favor of Park ton, setting aside the Upset Tax Sale and quieting title to the Premises in Parkton and further ordering Parkton to pay the Cumberland County Tax Claim Bureau (hereinafter "Tax Claim Bureau") all taxes, costs and interest due. 4. On or about October 24, 2003, the Krulacs and the Tax Claim Bureau filed Post-Trial Motions in response to this Honorable Court's Opinion and Order dated October 15, 2003. 5. By Order of Court dated December I, 2003, the Krulacs' and Tax Claim Bureau's post-trial motions were denied. 6. The Krulacs and the Tax Claim Bureau filed a Notice of Appeal to the Commonwealth Court of Pennsylvania on December 19, 2003, 7. On or about January 20, 2004, Parkton filed a Motion to Compel Posting of Supersedeas Bond in the above-captioned matter, requesting the Krulacs be required to post a bond in the amount of $60,000.00 pending their appeal. 8. By Order of Court dated February 3,2004, this Honorable Court denied Parkton's Motion to Compel Posting of Supersedeas Bond. 9. Pursuant to Pennsylvania Rule of Appellate Procedure 1733(a), an appeal "operates as a supersedeas only upon the filing with the clerk of the court below of appropriate security.. .." I O. The Tax Claim Bureau is not required to post an appeal bond pursuant to Pennsylvania Rule of Appellate Procedure 1736, which exempts the Commonwealth or any officer thereof from the requirement to post a bond for appeal. Pa.R.A.P. 1736(a) (1). Part (b) of Rule 1736 further states "[ u ]nless otherwise ordered pursuant to this chapter the taking of an appeal by any party specified in subdivision (a) of this rule shall operate as a supersedeas in favor of such party." (emphasis added). Pa.R.A.P. 1736(b). 11. The Tax Claim Bureau will receive its taxes regardless of the outcome ofthe appeal and it has no legal basis or interest in what happens to the Premises pending the appeal. 12. The Krulacs, as private citizens, can not avail themselves of the automatic supersedeas which applies to the Tax Claim Bureau. 13. The purpose of a supersedeas bond is to "maintain the status quo and protect [the winning party] from injury during the appeal period." Commonwealth v. Mayer, 131 Pa. Commw. 64, 569 A.2d 415, 418 (Pa.Cmwlth. 1990). 14. The proper amount of a supersedeas bond in actions involving the possession of real estate is the value of the use and occupation of the real property or the rental value of the property. 9 A.L.R. 3d 330 (1966). 15. In this matter, the Kru1acs' appeal is preventing sale orrental of the Premises by Parkton through a prime marketing period and additionally causing Parkton to incur ongoing costs in maintaining the property without offsetting income. 16. Parkton has an agreement of sale for the Premises with a third party buyer for a purchase price of $60,000.00, and Parkton requested the Krulacs to permit the sale to close with the funds placed in escrow, pending the outcome of the appeal. 17. However, the Krulacs refused to permit the sale to close into escrow or cooperate in any way, and as a result, if the sale carmot go to closing, Parkton may suffer default damages in excess of $5,000.00. 18, Parkton, as foreclosing mortgagor on the Premises, can only recover its debt by reselling the Premises, and the Krulacs' appeal and lack of cooperation is preventing resale, causing financial harm to Parkton. 19. Moreover, the property is also sitting vacant while the appeal is pending, causing a loss of possible rental income. 20. Parkton believes, and therefore avers, that the rental value of the Premises is approximately $700 a month, as evidenced by the market examples attached as Exhibit "A". 21. Parkton believes, and therefore avers, that the appeal will not be ruled on by the Commonwealth Court for another 6 months, approximately. 22. While this Honorable Court did not grant Parkton's original Motion to Compel Posting of Supersedeas Bond in the amount of $60,000.00, which is the value of the Premises, Parkton is at least entitled to the lost rents on the property, from the date of this Court's Order of December 1, 2003 until September 1,2004, the estimated date ofa Commonwealth Court decision. 23, Based on the foregoing, Parkton requests reconsideration of this Court's Order of February 3, 2004. WHEREFORE, Parkton respectfully requests this Honorable Court grant Parkton's Motion for Reconsideration and compel the Krulacs to post a bond in an amount of not less than $6,300.00, along with such other relief this Honorable Court deems just. Respectfully submitted, By: K, & CONNELLY, LLP. JAMES, SMIT , Scott A. Dietterick, Esquire Pa. I.D. # 55650 P.O. Box 650 Hershey, P A 17033 (717) 533-3280 Exhibit "A" 02/10/04 TUE 13:16 FAX ~002 ---- \_CAMP~l2 II' lMd~dIn~ =,.m~ .".. l NEW CU....ILANO ,-, ~l!:.~Wlterl\r""lIWtr. _Jell..,.. 1]1-1397 :' HARRISBURG TI'llORPlAKtmS . ~~o:~ "" . \' 'M!'7 ",_"~UI2bt6 I'OllllItowIhoustl8' I .......-."...".< OIfstraetlllltina.,,~~IlOW. ' "S640,7l1~9. ~i!w.~~ -~~~<- ili~"'ij6o;"" . So._'::',"""",", tIl 1,61-36611-_ ,-- , HARR1S8lIR63bednlom.blfttor ; nuMvf'lftllldll"'Stdlan8ok. S7tb.m utllllliS 932-5D6L . IN TIlE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYLVANIA DAVID A. KRULAC and DIANE E, KRULAC, Plaintiffs v. P ARKTON ENTERPRISES, INC., Defendant CIVIL ACTION-LAW NO. 02-5973 QUIET TITLE ACTION TIlE CUMBERLAND COUNTY TAX CLAIM BUREAU, Plaintiff. NO. 02-4847 PETITION TO SET ASIDE TAX SALE, NUNC PRO TUNC v. ORLANDO TORRES, Jr, and ANAILDA MALAVE, Defendants P ARKTON ENTERPRISES, INe. Petitioner v. DAVID A. KRULAC and DIANE E. KRULAC, and CUMBERLAND COUNTY TAX BUREAU, Respondents CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Motio was served via United States First Class Mail, postage pre-paid, this2~ day of 2004, upon the following: Dale F. Shugart, Jr. 35 East High Street, Suite 203 Carlisle, P A 17013 Stephen D. Tiley, Solicitor 5 South Hanover Street Carlisle, P A 17013 JAMES, SMITH, D By: Scott A. letterick, Pa, I.D, # 55650 P.O, Box 650 Hershey, P A 17033 (717) 533-3280 -., f';'': ~. , ~;.; ~ ::,-""i , o (:: ::<" '" C':':_C) "'-> -L- -,., n'} Co .r'\..'I (../j o -n ::::1 _1_::-r-, r:1;.:.__~ -(J{il :: :-J ;~-.:; ,'it:;; ;"':;/-,1 <I ~_r) .~ :::"': -",-'. - <:::> c....) PARKTON ENTERPRISES, INC., PETITIONER V. DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, and CUMBERLAND COUNTY TAX CLAIM BUREAU, RESPONDENTS : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND COUNTY, : PENNSYLVANIA : 02-4847 CIVIL TERM : PETITION TO SET ASIDE TAX SALE ---------------------------------------------------- DAVID A. KRULAC and DIANE E. KRULAC, husband and wife, PLAINTIFFS V. PARKTON ENTERPRISES, INC., DEFENDANT V, ORLANDO TORRES, JR. and ANAILDA MALAVE, DEFENDANTS : IN THE COURT OF COMMON : PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 02-5973 CIVIL TERM / : QUIET TITLE ORDER OF COURT AND NOW, this 2nd day of March, 2004, the within motions for reconsideration and to compel posting of a supersedeas bond, ARE DENIED. ~(--;;n ~vV'V'^~~ Edgar B. Bayley, J. 22~ (~)~~ r::)G~ ~JU- __1 ~~q >= ,......: " c5 if') U-.. ~-: 0:1 ''^ f:-:~ c.. "J I C~..... :,~! -~ = "'" "" Kimberly A. DeWitt, Esquire Scott A. Dietterick, Esquire For Parkton Enterprises, Inc. Dale F. Shughart, Jr., Esquire For David A. Krulac and Diane E. Krulac Stephen D. Tiley, Esquire For Cumberland County Tax Claim Bureau :sal r~ 3 ,O;L. 0'1 ~ DALE F. SHUGHART, JR. ATTORNEY AT LAW 35 EAST HIGH STREET SUITE 203 CARLISLE, PENNSYLVANIA 17013 Telephone (717) 241-4311 Facsimile (717) 241-4021 OF COUNSEL HAMILTON C, DAVIS LEGAL ASSISTANT BONNIE L, COYLE February 25, 2004 Honorable Edgar B. Bayley Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Krulac v. Parkton v. Cumberland County Tax Claim Bureau 02-5973 and 02-4847 Dear Judge Bayley: I received in the mail a "Motion for Reconsideration" of your prior denial of Parkton's Motion for posting of the Supersedeas Bond. If the Court believes there is some basis for considering this Motion, we request that a Rule to Show Cause be issued or a hearing scheduled. I believe, however, this letter will be sufficient to clarify the matter for all concerned. Paragraph 38 of the Joint Stipulation submitting the case to the Court on Stipulated Facts contained an agreement between Parkton and Krulac to maintain j oint possession of the real property "pending the resolution of legal issues be1:ween them". When the Court ruled in favor of Parkton, it assumed sole possession of the subj ect premises. Page 9 of the Appellant's Brief filed in the Commonwealth Court confirms that Parkton is in sole possession of the subject premises. Parkton, under the law, has a right to rent the property and retain all rent received pending disposition of the Appeal. Presumably Krulacs (not Parkton) could apply for a supersedeas to maintain j oint possession of the property pending a final decision. If so, Krulacs would have been required to post a Supersedeas Bond to cover the potential loss of rent to Parkton. Krulacs have not requested a supersedeas. DALE F. SHUGHART, JR. February 25, 2004 Page 2 Under the circumstances, our position is that the petition is improper and should again be denied. Dale F. Shughart, Attorney for Davi Diane E. Krulac Respectfully JJv2tf DFS,JR/bc cc Scott A. Dietterick, Esquire JAMES, SMITH, DIETTERICK & CONNELLY, LLP Stephen D. Tiley, Esquire Mr. and Mrs. David A. Krulac )AMEs SMITH OIErrERJCK & CONNELLY LIP FAX: 717.533.2795 February 26, 2004 The Honorable Edgar B. Bayley Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013 RE: Krulac v. Parkton v. Cumberland County Tax Claim Bureau 02-5973 and 02-4847 Dear Judge Bayley: I am in receipt of Attorney Shughart's attached letter of February 25,2004 in response to the Motion for Reconsideration our office filed on behalf of Parkton. The factual allegations of Mr. Shughart's letter are essentially correct, however, he misses the legal point. Parkton has an agreement to sell the real property for $60,000.00, $5,000.00 more than the fair market value. Parkton requested that the Krulacs cooperate in the sale of the property with all the net proceeds escrowed until termination of all legal issues at which time the funds would be distributed to the winning party. The Krulacs have refused to cooperate. Further, although this Court ruled that Parkton has the legal title to the property and the Krulacs have none, until the appeal is completed the Krulacs still have color oftitle pursuant to their Tax Sale Deed. Consequently, Parkton can neither sell the property nor legally lease it without the Krulacs cooperation and consent. The purpose of the supersedeas is to protect the interest of the winning party during the appeal period. The Krulacs can refuse to cooperate in the sale or lease of the property if they wish, but should place a supersedeas bond as collateral in the event they ultimately lose the appeal, in order to cover the winning party (Parkton's) lost income and other damages caused by the appeal delay. As you are aware, in this situation, Parkton has everything at risk and the Krulacs have nothing. If the tax sale is ultimately set aside, the Krulacs will get their money back. IfParkton loses, its entire mortgage investment of almost $90,000.00 is lost. Consequently, there is little or no downside to the Krulacs extending this legal proceeding out indefinitely. The purpose of the supersedeas bond is to protect against such one-sided situations, and to discourage time-wasting appeals, particularly when it is the winning party losing money during the delay. I III "II I' I', JS'}( 1:>1 ~)IF)[ /IVU-JI.H-: I !lJMI\1LL_~)~I)VV~j, "^ 1/::W ri1i\iLI:~n I\L:Uf11-~':~ f ' ( ['. () x C ~ -,: " [-lllh: II Y 1'/\ 1~'II:!J II I:~:J j : L'I!(I V\i\;'.,;'\,V,,;:-:[)(:,(;(:r,1 GARY L. JAMES MAX J. SMITH, JR JOHN J. CONNELLY, JR Scan A DIETTERICK JAMES F. SPADE BRYAN S. WALK MATTHEW CHABAL, III GREGORY K. RICHARDS SUSAN M, KADEL JARAD W, HANDELMAN DONNA M. MULLIN EDWARD P_ SEEBER NEIL W. YAHN COURTNEY L. KISHEL KIMBERLY A. DEWITT OF COUNSEL MANLEY DEAS & KOCHALSKI, LLC COLUMBUS, OH February 26, 2004 Page 2 of2 Hopefully, this clarifies the issues for this Honorable Court. Parkton has no objection to a Rule being issued requiring an answer and a hearing. Yet, it remains Parkton's position that a supersedeas bond should be required from the Krulacs in an amount this Honorable Court deems just under the circumstances. Thank you. J & CONNELLY LLP se enclosure cc: Stephen D. Tiley, Esquire Dale F. Shughart, Jr., Esquire Douglas Durkin, Esquire DALE F. SHUGHART, JR. ATTORNeY AT LAW 35 EAST HIGH STREET SUITE 203 CARLISLE, PENNSYLVANIA 17013 Telephone (717) 241-4311 Facsimile (717) 241-4021 OF COUNSEL HAMILTON C, OAVIS LEGAL ASSISTANT BONNIE L, COYLE February 25, 2004 Honorable Edgar B. Bayley Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Krulac v. Parkton v. Cumberland County Tax Claim Bureau 02-5973 and 02-4847 Dear Judge Bayley: I received in the mail a "Motion for Reconsideration" of your prior denial of Parkton's Motion for Posting of the Supersedeas Bond. If the Court believes there is some basis for considering this Motion, we request that a Rule to Show Cause be issued or a hearing scheduled. I believe, however, this letter will be sufficient to clarify the matter for all concerned. Paragraph 38 of the Joint Stipulation submitting the case to the Court on Stipulated Facts contained an agreement between parkton and f,yulac to maintain joint possession of the real property "pending the resolution of legal issues between them". When the Court ruled in favor of Parkton, it assumed sole possession of the subj ect premises. Page 9 of the Appellant's Brief filed in the Commonwealth Court confirms that Parkton is in sole possession of the subject premises. Parkton, under the law, has a right to rent the property and retain all rent received pending disposition of the Appeal. Presumably Krulacs (not parkton) could apply for a supersedeas to maintain j oint possession of the property pending a final decision. If so, Krulacs would have been required to post a Supersedeas Bond to cover the potential loss of rent to ParktoD. Krulacs have not requested a supersedeas. DALE F. SHUGHART, JR. February 25, 2004 Page 2 Under the circumstances, our position is that the Petition is improper and should again be denied. Respectfully submitted, Dale F. Shughart, Jr. Attorney for David A. and Diane E. Krulac DFS,JR/bc cc Scott A. Dietterick, Esquire JAMES, SMITH, DIETTERICK & CONNELLY, LLP Stephen D. Tiley, Esquire Mr. and Mrs. David A. Krulac IN THE COMMONWEALTH COURT OF PENNSYLVANIA Parkton Enterprises, 1nc. J1 OJ.-- tj~7~ ~ NO. 2756 CD. 2003 v. David A. Krulac and Diane E. Krulac, husband and wife, and cumberland County Tax Claim Bureau David A. Krulac and Diane E. Krulac, husband and wife v. parkton Enterprises, Inc. v. Orlando Torres, Jr. and Anailda Malave Appeal of: Cumberland County Tax Claim Bureau and David A. Krulac and Diane E. Krulac, husband and wife ORDER application for reargument, and appellee parkton Enterprises' answer, the NOW, september 30, 2004, having considered appellant's application is granted and our opinion and Order filed July 23, 2004, are hereby withdrawn. panel 1 on December 7, 2004; argument shall commence at 1 :00 p.m.. The Chief Clerk shall schedule this case for argument before ordered by the Court, New briefs shall not be filed by the parties unless ot~rw~ r- <==l. ".-, c::;:, ;..,..- 04..- o C') --I I .c:- ;.i":j;/" BY THE COURT: ~::::':: c "p;-, ,:;t:~,;:,.," -tJ :"J":: o -'1'1 --< :r::. -r-: fI1~ ,:'99 ::?o ',-'-r ~J; ~d ,\":~'~) ,"'~' n <...J -'-1 ~E "< v- ~:,.':i S> a co ~~~~ JAM'ES GARDNER COLINS, President JUdge C.. 'f I". FC~_"--l srtmea rom ~ ,,.-. l-kr,;>;...,."I'.." SEP :I (j 2004 an~ Ordor exit ';' IN THE COMMONWEAL TH COURT OF PENNSYL VANIA Parkton Enterprises, Inc. v. No. 2756 C.D. 2003 Argued: December 7, 2004 David A. Krulac and Diane E. Krulac, husband and wife, and Cumberland County Tax Claim Bureau ~ OJ- 5q7?J ~ David A. Krulac and Diane E. Krulac, husband and wife v. Parkton Enterprises, Inc. v. Orlando Torres, Jr. and Anailda Malave Appeal of: Cumberland County Tax Claim Bureau and David A. Krulac and Diane E. Krulac, husband and wife BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION BY JUDGE FRIEDMAN FILED: January 4, 2005 David A. Krulac and Diane E. Krulac, husband and wife, (Krulacs) and Cumberland County Tax Claim Bureau (Bureau) appeal from the December 1, 2003, order of the Court of Common Pleas of Cumberland County (trial court) granting the petition of Parkton Enterprises, Inc. (Parkton) to set aside the Tax l' Upset Sale of property located at 705 Erford Road, East Pennsboro Township, Cumberland County, Pennsylvania (Property) and quieting title in Parkton. We affirm. The parties stipulated to the following facts. On January 31, 2001, Eastern Savings Bank FSB (Eastern) obtained a default judgment in a mortgage foreclosure action against Orlando Torres, Jr. and Anai1da Malave (Torres and Malave), then owners of the Property. In addition to their failure to make mortgage payments, Torres and Malave failed to make payments into escrow for unpaid real estate taxes for the 2000 tax year. Because of insufficient funds in the escrow account, Eastern did not pay the real estate taxes on the Property, and the Bureau acquired a lien against the Property for the unpaid real estate taxes. Eastern filed an affidavit with the Sheriff pursuant to Pa. R.C.P. No. 3129.1, and a Sheriffs Sale of the Property was scheduled for June 5, 2002. Eastern had knowledge of the Bureau's lien on the Property and served the Bureau with notice of the Sheriffs Sale pursuant to Pa. R.C.P. No. 3129.2.1 Also, in June 2002, the Bureau scheduled the Tax Upset Sale for the unpaid real estate taxes for 1 Pa. R.C.P. No. 3129.1 provides, in relevant part, that no sale of real property shall be held until the plaintiff files an affidavit with the Sheriff setting forth the names and addresses of: (I) the owner or reputed owner of the property and of the defendant in the judgment; (2) every other person who has any record lien on that property; (3) every other person who has any record interest in the property that may be affected by the sale; and (4) every other person with any interest in the property that is not of record but may be affected by the sale and of which the plaintiff has knowledge. Pa. R.C.P. No. 3129.I(a) & (b). Pa R.C.P. No. 3129.2 requires, in relevant part, that all persons named in the affidavit be served with written notice of the Sheriffs Sale. Pa. R.C.P. No. 3129.2(c)(I)(i)(B). 2 September 26, 2002. All public and personal notices of the Tax Upset Sale were properly advertised and served upon Torres and Malave in accordance with the notice requirements of the Real Estate Tax Sale Law (Law).2 The Sheriff's Sale subsequently was rescheduled and held on September 4, 2002, during which Parkton purchased the Property for a bid of one dollar. This was a cost only bid, meaning that Parldon's bid covered only the Sheriff's costs, charges and expenses incident to the execution of the sale. Pa. R.C.P. No. 3138(a). Thus, after the Sheriff's Sale was conducted, the Bureau still retained its lien against the Property. The Sheriff's schedule of distribution listed a priority claim for unpaid taxes for 2000 and 2001 owed to the Bureau in the amount of $2,806.42. On September 18, 2002, an assignment of mortgage from Eastern to Parkton was recorded in the Cumberland County Miscellaneous Book 690, Page 1425. On September 25,2002, a Sheriff's deed conveying title of the Property to Parkton was recorded in the Cumberland County deed "book. On September 26, 2002, when the Bureau held its Tax Upset Sale for the unpaid 2000 real estate taxes, Krulacs purchased the Property for a bid of $5,682.20.3 Neither Eastern nor Parkton was served with prior notice of the Tax 2 Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. ~5860.101-5860.803. 3 Krulacs paid the Bureau $7,268.74 to obtain a deed for the Property. 3 II .. Upset Sale. On October 4, 2002, the trial court affirmed the Bureau's petition to confirm the tax sale nisi. On October 10, 2002, the Bureau attempted to serve post-sale notice by mail upon Parkton pursuant to section 607 of the Law, 72 P.S. ~5860.607. Parkton never received that notice,4 and, on October 28, 2002, Parkton paid real estate taxes on the Property for the 2002 tax year. Torres and Malave continued in possession of the Property after the September 4, 2002, Sheriff s Sale, and, on November 12, 2002, Parkton filed a Complaint in Ejectment against Torres and Malave. On December 2, 2002, a deed conveying title to Krulacs was recorded in the Cumberland County deed book. On December 17, 2002, Krulacs filed a Petition to Intervene in the Ejectment Action filed by Parkton against Torres and Malave and, for the first time, advised Parkton of the September 26, 2002, Tax Upset Sale. Krulacs also filed an Action to Quiet Title against Parkton. After a determination that Torres and Malave had vacated the Property, Krulacs and Parkton assumed joint possession of the Property pending resolution of the quiet title action. On March 12, 2003, Parkton filed a "Petition 4 The record does not indicate how the Bureau learned that Parkton was the record owner of the Property at the time of sale. The return receipt card was detached from the envelope and was signed, but the envelope containing the notice was returned to the Bureau. The record does not indicate who signed the return receipt card. We further note, however, that even if Parkton had received the post-sale notice, the Bureau incorrectly stated that the Tax Upset Sale was to occur on October 26, 2002, when, in fact, the sale had been held on September 26, 2002. 4 To [sic] Set Aside the Tax Sale, Nunc Pro Tunc," which was consolidated with Krulacs' quiet title action. Following a hearing on the petitions, the trial court granted Parkton's petition to set aside the Tax Upset Sale and quieted title in Parkton. Relying on Gladstone v. Federal National Mortgage Association, 819 A.2d 171 (Pa. Cmwlth.) (holding that a tax claim bureau is required to use common sense business practices in determining those entitled to receive notice of a tax sale), appeal denied, 574 Pa. 762, 831 A.2d 601 (2003), the trial court reasoned that, because the Bureau had been served with notice of the September 4, 2002, Sheriff s Sale, the Bureau had a duty to inquire of the Sheriff whether someone had purchased the Property at the Sheriffs Sale. If the Bureau had done so, the Bureau would have learned that Parkton had purchased the Property. Krulacs and the Bureau appealed to this court, which affirmed the trial court's decision based on the Bureau's failure to provide proper post-sale notice to Parkton. Krulacs and the Bureau filed a petition for re-argument, asserting that the improper post-sale notice issue was waived when the trial court allowed Parkton to file a nunc pro tunc petition to set aside the tax sale. After considering the matter, this court granted re-argument. 5 5 Our scope of review in tax sale cases is limited to determining whether the trial court abused its discretion, clearly erred as a matter of law or rendered a decision unsupported by the evidence. Michener v. Montgomery County Tax Claim Bureau, 671 A.2d 285 (Pa. Cmwlth. 1996). 5 Krulacs and the Bureau argue that the Bureau was not required to provide prior notice of the Tax Upset Sale to Parkton where Parkton obtained record ownership of the Property only one day prior to the tax sale. We disagree. Section 602 of the Law requires that where property is to be exposed to a Tax Upset Sale, the Bureau must provide three separate methods of notification: (1) publication of the tax sale at least thirty days in advance of the sale; (2) notifieation of the sale to each owner by certified mail at least thirty days in advance of the sale; and (3) posting of notice of the sale on the property at least ten days prior to the sale. 72 P.S. 95860.602. However, technical compliance with these statutory notice requirements may not, in some circumstances, satisfy the demands of due process. Geier v. Tax Claim Bureau, 527 Pa. 41, 588 A.2d 480 (1991). To meet due process requirements, the taxing authority is required to make a reasonable effort to discover the identity and address of a person whose interests are likely to be affected by the tax sale. Wells Fargo Bank of Minnesota. NA v. Tax Claim Bureau, 817 A.2d 1196 (Pa. Cmwlth. 2003) (citing Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983)). This court, quoting our supreme court, has stated: Somehow, over the years, taxing authorities have lost sight of the fact that it is a momentous event under the United States and Pennsylvania Constitutions when a government subjects a citizen's property to forfeiture for the non-payment of taxes.... The collection of taxes... may not be implemented without due process of law that is guaranteed in the Commonwealth and federal constitutions; and this due process . .. requires at a 6 minimum that an owner of land be actually notified by government, if reasonably possible, before his land is forfeited by the state. Wells Fargo, 817 A.2d at 1198-99 (quoting Tracy v. County of Chester Tax Claim Bureau, 507 Pa. 288, 297, 489 A.2d 1334, 1339 (1985)). Thus, a taxing agency must be cognizant of any unique facts or circumstances that may impact on its attempt to locate the owner of property. Krawec v. Carbon County Tax Claim Bureau, 842 A.2d 520 (Pa. Cmwlth. 2004). Here, when the Bureau scheduled the tax sale in June of 2002, the Bureau was cognizant of unique circumstances that could have an impact on the ownership of the Property, i.e., the Sheriffs Sale. Instead of delaying or re- scheduling the tax sale, the Bureau proceeded to give statutory notice of the tax sale with full knowledge that there might be a new owner of the Property as a result of the Sheriff s Sale. Certainly, as the trial cOUli stated, it would have been reasonable for the Bureau to contact the Sheriff prior to the tax sale to determine whether there was a new owner of the Property.6 Because the Bureau failed to make a reasonable effort to discover the identity of the: new owner of the Property, i.e., Parkton, we conclude that the trial court properly set aside the Tax Upset Sale and quieted title in Parkton.7 6 The Bureau points out that Parkton did not become a record owner of the Property until the day before the tax sale, but the Sheriffs Sale itself was held on September 4, 2002, twenty- two days before the tax sale. The Bureau would not have been surprised by the change in ownership if the Bureau had been in contact with the Sheriff about the Sheriffs Sale. 7 Krulacs and the Bureau also contend that, because Parkton had notice of the tax lien following the September 4, 2002, Sheriffs Sale, Parkton should be deemed to have received implied actual knowledge of the Tax Upset Sale. However, the law does not impose a duty on (Footnote continued on next page...) 7 Accordingly, we affirm.8 d~ ,v:~A'<" ~ ROCHELLE S. EDMAN, Judge (continued... ) the owner to inquire about pending tax sales upon the purchase of property with a tax lien; rather, the law imposes duties upon the agencies responsible for the tax sales. See Wells Fargo. "Thus, any alleged failure on the part of [ the owner] is irrelevant in the determination of whether the Bureau complied with its... obligations." Wells Fargo, 817 A.2d at 1200. 8 At oral argument, the Bureau and Krulacs argued that, pursuant to First Horizon Home Loan Corporation v. Adams County Tax Claim Bureau, 847 A.2d 774 (Pa. Cmwlth. 2004), the Bureau had no statutory duty to continually track changes in title where notice to the owner had been confirmed. However, the issue decided in First Horizon was whether a former owner of property sold at a tax sale had standing to challenge the tax sale on behalf of the current owner. Although, in dicta, this court stated that the Bureau has no statutory duty to continually track changes in title where notice to the owner has been confirmed, the Bureau nevertheless has a duty to make reasonable efforts to identify owners in order to meet constitutional due process requirements. 8 IN THE COMMONWEALTH COURT OF PENNSYL VANIA Parkton Enterprises, Inc. v. David A. Krulac and Diane E. Krulac, husband and wife, and Cumberland County Tax Claim Bureau David A. Krulac and Diane E. Krulac, husband and wife v. Parkton Enterprises, Inc. v. Orlando Torres, Jr. and Anailda Malave Appeal of: Cumberland County Tax Claim Bureau and David A. Krulac and Diane E. Krulac, husband and wife AND NOW, this No. 2756 C.D. 2003 ORDER 4th day of January , 2005, the order of the Court of Common Pleas of Cumberland County, dated December 1, 2003, is hereby affirmed. 4 d ~~./--.,~ ROCHELLE S. FRIEDMAN, Judge Certified from the Record JAN 4 2005 and Order Ed n c ;;:.... ;:;~ ~} ~( -I!~ - ~:(:' .~l~: ',' , ~~~ '-- -~ ",,,- --; -< )'00..) c.:;> C::> c..n '- > Z I U1 o -1'1 -l III f11-.. 1'-- -em 7.'91") ':),0 ~~€ '-' ,11 ......1 :-1 ~;~ :;u --< :!?: .....<:.. w c:> IN THE COMMONWEALTH COURT OF PENNSYL VANIA Parkton Enterprises, Inc. v. No. 2756 C.D. 2003 Argued: December 7, 2004 )c.:v.O-:J173 ell;,1 David A. Krulac and Diane E. Krulac, husband and wife, and Cumberland County Tax Claim Bureau David A. Krulac and Diane E. Krulac, husband and wife v. Parkton Enterprises, Inc. v. Orlando Torres, Jr. and Anailda Malave Appeal of: Cumberland County Tax Claim Bureau and David A. Krulac and Diane E. Krulac, husband and wife BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION BY JUDGE FRIEDMAN FILED: January 4,2005 David A. Krulac and Diane E. Krulac, husband and wife, (Krulacs) and Cumberland County Tax Claim Bureau (Bureau) appeal from the December I, 2003, order of the Court of Common Pleas of Cumberland County (trial court) granting the petition of Parkton Enterprises, Inc. (Parkton) to set aside the Tax Upset Sale of property located at 705 Erford Road, East Pennsboro Township, Cumberland County, Pennsylvania (Property) and quieting title in Parkton. We affirm. The parties stipulated to the following facts. On January 31, 2001, Eastern Savings Bank FSB (Eastern) obtained a default judgment in a mortgage foreclosure action against Orlando Torres, Jr. and Anailda Malave (Torres and Malave), then owners of the Property. In addition to their failure to make mortgage payments, Torres and Malave failed to make payments into escrow for unpaid real estate taxes for the 2000 tax year. Because of insufficient funds in the escrow account, Eastern did not pay the real estate taxes on the Property, and the Bureau acquired a lien against the Property for the unpaid real estate taxes. Eastern filed an affidavit with the Sheriff pursuant to Pa. R.C.P. No. 3129.1, and a Sheriffs Sale of the Property was scheduled for June 5, 2002. Eastern had knowledge of the Bureau's lien on the Property and served the Bureau with notice of the Sheriffs Sale pursuant to Pa. R.C.P. No. 3129.2.1 Also, in June 2002, the Bureau scheduled the Tax Upset Sale for the unpaid real estate taxes for I Pa, R.C,P, No. 3129.1 provides, in relevant part, that no sale of real property shall be held until the plaintiff files an affidavit with the Sheriff setting forth the names and addresses of: (l) the owner or reputed owner of the property and of the defendant in the judgment; (2) every other person who has any record lien on that property; (3) every other person who has any record interest in the property that may be affected by the sale; and (4) every other person with any interest in the property that is not of record but may be affected by the sale and of which the plaintiff has knowledge. Pa. R,C.P, No, 3129,I(a) & (b), Pa R.C.P. No, 3129.2 requires, in relevant part, that all persons named in the affidavit be served with written notice of the Sheriffs Sale, Pa, R.c.P. No, 3129,2(c)(1)(i)(B), 2 September 26, 2002. All public and personal notices of the Tax Upset Sale were properly advertised and served upon Torres and Malave in accordance with the notice requirements ofthe Real Estate Tax Sale Law (LawV The Sheriffs Sale subsequently was rescheduled and held on September 4, 2002, during which Parkton purchased the Property for a bid of one dollar. This was a cost only bid, meaning that Parkton's bid covered only the Sheriffs costs, charges and expenses incident to the execution of the sale. Pa. R.C.P. No. 3138(a). Thus, after the Sheriffs Sale was conducted, the Bureau still retained its lien against the Property. The Sheriffs schedule of distribution listed a priority claim for unpaid taxes for 2000 and 2001 owed to the Bureau in the amount of $2,806.42. On September 18, 2002, an assignment of mortgage from Eastern to Parkton was recorded in the Cumberland County Miscellaneous Book 690, Page 1425, On September 25,2002, a Sheriffs deed conveying title of the Property to Parkton was recorded in the Cumberland County deed book. On September 26, 2002, when the Bureau held its Tax Upset Sale for the unpaid 2000 real estate taxes, Krulacs purchased the Property for a bid of $5,682.20.3 Neither Eastern nor Parkton was served with prior notice of the Tax 2 Act ofJuly 7,1947, P.L. 1368, as amended, 72 P.S. 95860.101-5860.803, 3 Krulacs paid the Bureau $7,268,74 to obtain a deed for the Property, 3 Upset Sale. On October 4, 2002, the trial court affirmed the Bureau's petition to confirm the tax sale nisi. On October 10, 2002, the Bureau attempted to serve post-sale notice by mail upon Parkton pursuant to section 607 of the Law, 72 P.S. 95860.607. Parkton never received that notice,4 and, on October 28, 2002, Parkton paid real estate taxes on the Property for the 2002 tax year. Torres and Malave continued in possession of the Property after the Septernber 4, 2002, Sheriffs Sale, and, on November 12, 2002, Parkton filed a Complaint in Ejectment against Torres and Malave. On December 2; 2002, a deed conveying title to Krulacs was recorded in the Cumberland County deed book. On December 17, 2002, Krulacs filed a Petition to Intervene in the Ejectment Action filed by Parkton against Torres and Malave and, for the first time, advised Parkton of the September 26, 2002, Tax Upset Sale. Krulacs also filed an Action to Quiet Title against Parkton. After a determination that Torres and Malave had vacated the Property, Krulacs and Parkton assumed joint possession of the Property pending resolution of the quiet title action. On March 12, 2003, Parkton filed a "Petition 4 The record does not indicate how the Bureau learned that Parkton was the record owner of the Property at the time of sale. The return receipt card was detached from the envelope and was signed, but the envelope containing the notice was returned to the Bureau, The record does not indicate who signed the return receipt card, We further note, however, that even if Parkton had received the post-sale notice, the Bureau incorrectly stated that the Tax Upset Sale was to occur on October 26,2002, when, in fact, the sale had been held on September 26, 2002, 4 To [sic] Set Aside the Tax Sale, Nunc Pro Tunc," which was consolidated with Krulacs' quiet title action. Following a hearing on the petitions, the trial court granted Parkton's petition to set aside the Tax Upset Sale and quieted title in Parkton. Relying on Gladstone v. Federal National Mortgage Association, 819 A.2d 171 (Pa. CmwIth.) (holding that a tax claim bureau is required to use common sense business practices in determining those entitled to receive notice of a tax sale), appeal denied, 574 Pa. 762, 831 A.2d 601 (2003), the trial court reasoned that, because the Bureau had been served with notice of the September 4, 2002, Sheriffs Sale, the Bureau had a duty to inquire of the Sheriff whether someone had purchased the Property at the Sheriff s Sale. If the Bureau had done so, the Bureau would have learned that Parkton had purchased the Property. Krulacs and the Bureau appealed to this court, which affirmed the trial court's decision based on the Bureau's failure to provide proper post-sale notice to Parkton. Krulacs and the Bureau filed a petition for re-argument, asserting that the improper post-sale notice issue was waived when the trial court allowed Parkton to file a nunc pro tunc petition to set aside the tax sale. After considering the matter, this court granted re-argument.5 5 Our scope of review in tax sale cases is limited to determining whether the trial court abused its discretion, clearly erred as a matter of law or rendered a decision unsupported by the evidence, Michener v. Montgomery County Tax Claim Bure~!Jh 671 A2d 285 (Pa, Cmwlth, 1996), 5 Krulacs and the Bureau argue that the Bureau was not required to provide prior notice of the Tax Upset Sale to Parkton where Parkton obtained record ownership of the Property only one day prior to the tax sale. We disagree. Section 602 of the Law requires that where property is to be exposed to a Tax Upset Sale, the Bureau must provide three separate methods of notification: (1) publication of the tax sale at least thirty days in advance of the sale; (2) notification of the sale to each owner by certified mail at least thirty days in advance of the sale; and (3) posting of notice of the sale on the property at least ten days prior to the sale. 72 P.S. 95860.602. However, technical compliance with these statutory notice requirements may not, in some circumstances, satisfy the demands of due process. Geier v. Tax Claim Bureau, 527 Pa. 41, 588 A.2d 480 (1991). To meet due process requirements, the taxing authority is required to make a reasonable effort to discover the identity and address of a person whose interests are likely to be affected by the tax sale. Wells Fargo Bank of Minnesota, NA v. Tax Claim Bureau, 817 A.2d 1196 (Pa. Cmwlth. 2003) (citing Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983)). This court, quoting our supreme court, has stated: Somehow, over the years, taxing authorities have lost sight of the fact that it is a momentous event under the United States and Pennsylvania Constitutions when a government subjects a citizen's property to forfeiture for the non-payment of taxes.... The collection of taxes... may not be implemented without due process of law that is guaranteed in the Commonwealth and federal constitutions; and this due process ... requires at a 6 minimum that an owner of land be actually notified by government, if reasonably possible, before his land is forfeited by the state. Wells Fargo, 817 A.2d at 1198-99 (quoting Tracy v. County of Chester Tax Claim Bureau, 507 Pa. 288, 297, 489 A.2d 1334, 1339 (1985)). Thus, a taxing agency must be cognizant of any unique facts or circumstances that may impact on its attempt to locate the owner of property. Krawec v. Carbon County Tax Claim Bureau, 842 A.2d 520 CPa. CmwIth. 2004). Here, when the Bureau scheduled the tax sale in June of 2002, the Bureau was cognizant of unique circumstances that could have an impact on the ownership of the Property, i.e., the Sheriffs Sale. Instead of delaying or re- scheduling the tax sale, the Bureau proceeded to give statutory notice of the tax sale with full knowledge that there might be a new owner of the Property as a result of the Sheriffs Sale. Certainly, as the trial court stated, it would have been reasonable for the Bureau to contact the Sheriff prior to the tax sale to determine whether there was a new owner of the Property.6 Because the Bureau failed to make a reasonable effort to discover the identity of the new owner of the Property, i.e., Parkton, we conclude that the trial court properly set aside the Tax Upset Sale and quieted title in Parkton.7 6 The Bureau points out that Parkton did not become a record owner of the Property until the day before the tax sale, but the Sheriffs Sale itself was held on September 4,2002, lwenty- two days before the tax sale, The Bureau would not have been surprised by the change in ownership if the Bureau had been in contact with the Sheriff about the Sheriffs Sale, 7 Krulacs and the Bureau also contend that, because Parkton had notice of the tax lien following the September 4, 2002, Sheriffs Sale, Parkton should be deemed to have received implied actual knowledge of the Tax Upset Sale. However, the law does not impose a duty on (Footnote continued on next page...) 7 Accordingly, we affirm.8 d~i/:~,/~~,- ) ROCHELLE S. EDMAN, Judge (continued...) the owner to inquire about pending tax sales upon the purchase of property with a tax lien; rather, the law imposes duties upon the agencies responsible for the tax sales. See Wells Fargo, "Thus, any alleged failure on the part of [the owner] is irrelevant in the determination of whether the Bureau complied with its", obligations." Wells Fargo, 817 A.2d at 1200. 8 At oral argument, the Bureau and Krulacs argued that, pursuant to First Horizon Home Loan Corporation v. Adams Countv Tax Claim Bureau, 847 A.2d 774 (Pa, Cmwlth. 2004), the Bureau had no statutory duty to continually track changes in title where notice to the owner had been confirmed, However, the issue decided in First Horizon was whether a former owner of property sold at a tax sale had standing to challenge the tax sale on behalf of the current owner. Although, in dicta, this court stated that the Bureau has no statutorv duty to continually track changes in title where notice to the owner has been confirmed, the Bureau nevertheless has a duty to make reasonable efforts to identify owners in order to meet constitutional due process requirements, 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Parkton Enterprises, Inc. v. No. 2756 C.D. 2003 David A. Krulac and Diane E. Krulac, husband and wife, and Cumberland County Tax Claim Bureau David A. Krulac and Diane E. Krulac, husband and wife v. Parkton Enterprises, Inc. v. Orlando Torres, Jr. and Anailda Malave Appeal of : Cumberland County Tax Claim Bureau and David A. Krulac and Diane E. Krulac, husband and wife ORDER AND NOW, this 4th day of January , 2005, the order of the Court of Common Pleas of Cumberland County, dated December 1, 2003, is hereby affirmed. 1 ~'/Y'-~ OCHELLE S. FRIEDMAN, Judge .''0 (::-~';' en ':~~ ..,J.':c;,I ;:-J- 9'),:;,; r'~;" "",,""". 2::;~. 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