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HomeMy WebLinkAbout99-0287 CivilSCOTT and LISA BANKERT, Plaintiffs V. TIMOTHY BISHOP Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-287 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., August 10, 1999. In this civil case Plaintiffs, Scott and Lisa Bankert, filed an action in ejectment after Defendant, Timothy Bishop, allegedly refused to leave property acquired by Plaintiffs at a tax sale. Plaintiffs asserted ownership of premises at 209 East Portland Street, Mechanicsburg, Cumberland County, Pennsylvania, by virtue of a Tax Claim Bureau deed dated December 7, 1998, and accordingly claimed a right to possession of the property.~ Defendant maintained that Plaintiffs were not the rightful owners of the property and were not entitled to possession because (a) proper notice of the tax sale, as required by law, was not given to the joint owner of the property and (b) Defendant would have been able to make payments eventually to satisfy the tax debt.2 Following a non-jury trial, by order dated May 7, 1999, the court found in favor of Plaintiffs and against Defendant.3 This order read as follows: Plaintiffs' Complaint, paragraph 4. Defendant's Pre-trial Memorandum, paragraph 1. Order of Court, dated May 7, 1999. AND NOW, this 7th day of May, 1999, upon consideration of Plaintiffs' Complaint in ejectment, and following a nonjury trial held on April 26, 1999, the Court finds in favor of Plaintiffs and against Defendant. JUDGMENT in ejectment may be entered upon praecipe at the appropriate time, and execution upon the judgment should proceed in accordance with the rules of civil procedure pertaining to ejectment.4 No motions for post-trial relief from this May 7, 1999, verdict were filed. On June 3, 1999, prior to entry of judgment on the verdict, Defendant appealed to the Pennsylvania Superior Court from the court's verdict.5 A praecipe for entry of judgment was filed by Plaintiff on June 18, 1999.' Following the filing of Defendant's appeal, Defendant was directed to file a Statement of Matters Complained of on Appeal.6 Defendant filed a handwritten statement on June 25, 1999:7 Matter's Complaned of as Appell 1 Tax Office did not give chanc fore fair market value. 2 The trial was condected in this court on 4/26/99 3 Appellant argued before this court that the Cumberland Country Tax Office did not proceeded properly. Order of Court, dated May 7, 1999. Notice of Appeal, filed June 3, 1999. Order of Court, dated June 11, 1999. Defendant's Matter's Complaned of as Appell. 2 4 This court determend that the Tax Office proceeded correctly. 5 As a resault this court I feel may earror in judgment in ejectment of the appellant. 6 Tax Office wood not wate one more mounth. Respectfully Defendant Timothy J. Bishop /s/Timothy J. Bishop 1 I have no place to go 2 Have to move large wood shop to move no place to move it to 3 Phone was disconnected 5/28/99 4 Have household item's, personal belongings, and furniture. To be moved 5 Have temp. job only 24-37 Hr. per week 6 No income from rental property it is up for tax sale, top floor and second floor badly damaged' by tenant's. Tax's due are 96-97-98 $2,300 mortgage payment is in default by 2 mo. (May-June 99) $490.00 7* must try to buy house back and make payment's of back tax. 8 must go to appeal ofejectment. 9 Scott Bankert want's me out in 10 days (5/31/99 he told me) 10 Leslie Accristo has over $24,000 invested in house. 11 Jessica's bed room no plase to move it to. 12 Have no way to call Lesslie only see on Sunday when she Brings Jessica 13 Truck is overtime. 1982 with 136,000 mile's trying to get full time + Timothy J. Bishop 209 E. Portland St. Mech. Pa. 17055 795-9749 By order dated June 11, 1999, Defendant was directed to pay one-half of the cost of preparation of the transcript of the trial held on April 26, 1999, pursuant to Pennsylvania Rule of Appellate Procedure 1911(a) and Pennsylvania Rule of Judicial Administration 5000.6.8 Defendant failed to comply with this order, as a consequence of which the notes of testimony of the trial do not appear in the record. This opinion in support of the order dated May 7, 1999, is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). PROCEDURAL HISTORY; STATEMENT OF FACTS Plaintiffs' complaint in ejectment was filed on January 15, 1999. It alleged that Plaintiffs resided at 207 East Portland Street, Mechanicsburg, Cumberland County, Pennsylvania,9 and that Defendant resided at 209 East Portland Street, Mechanicsburg, Cumberland County, Pennsylvania. Order of Court, dated June 11, 1999. Plaintiffs' Complaint, paragraph 1. 4 The complaint averred that Defendant was the owner of his residence prior to a tax sale and did not have a lease for the property.~° It asserted that Plaintiffs became the owners of the property by virtue of a Tax Claim Bureau deed following the tax sale. TM Defendant, according to Plaintiffs, continued to occupy the property at 209 East Portland Street without right or claim of title and continued to withhold possession from Plaintiffs.~2 Under the Tax Claim Bureau deed, Plaintiffs asserted that they were entitled to possession of 209 East Portland Street.~3 Plaintiffs averred that Defendant's continued possession and refusal to vacate the property was unlawful.~4 Plaintiffs' complaint contained a legal description of the property in dispute and an abstract of title to the property as required by Pennsylvania Rule of Civil Procedure 1054.~5 Defendant filed an answer to the complaint in ejectment on February 12, 1999.~6 l0 Plaintiffs' Complaint, paragraphs 2,7. 11 Plaintiffs' Complaint, paragraph 4. ~2 Plaintiffs' Complaint, paragraph 5. ~3 Id' ~4 Id., paragraph 8. 15 Pennsylvania rule of Civil Procedure 1054 provides as follows: (a) The plaintiff shall describe the land in his complaint (b) A party shall set forth in his complaint or answer an abstract of the title upon which he relies at least from the common source of the adverse titles of the parties. ~6 Defendant's Answer. On February 22, 1999, a pretrial conference was scheduled by order of court for April 5, 1999.~7 At the pretrial conference Defendant did not appear, nor did he submit a timely pretrial memorandum. ~8 A nonjury trial was held on April 26, 1999.~9 At the trial Plaintiffs introduced into evidence the Tax Claim Bureau deed, dated December 7, 1998, purporting to transfer title to the property to them, and a receipt from the Cumberland County Tax Claim Bureau acknowledging Plaintiffs' payment for the property.2° Plaintiffs also presented testimony of Jacob L. Heisey, Director of the Tax Claim Bureau of Cumberland County, regarding notice of the sale, inter alia.2~ Mr. Heisey testified that notice had been provided by (a) certified mail to Defendant, (b) publication in the Harrisburg Patriot-News, Carlisle Sentinel, Shippensburg News Chronicle and Cumberland Law Journal and (c) posting upon the property? Mr. Heisey testified that the Defendant was notified of the prospect of a tax sale on July 8, 1997, by certified mail, return receipt requested, postage prepaid, restricted delivery23 and was ~7 Order of Court, dated February 22, 1999. ~8 Pretrial Conference Order, filed April 6, 1999. ~9 Order of Court, dated February 22, 1999. 20 Plaintiffs' Exhibits 1 and 2. 21 Under the Real Estate Tax Sale Law, a taxing authority is to provide three types of notice - by publication, United States certified mail, and posting - to validly sell property for delinquent real estate taxes. Perma Coal-Sales, Inc. v. Cambria County Tax Sale Bureau, 162 Pa. Commw. 7, 638 A.2d 329 (1994). 22 Plaintiffs' Exhibits 2 and 3. 23 Plaintiffs' Exhibit 3. again notified of the impending tax sale on September 9, 1998, when handed a copy of the Tax Claim Notice by a sheriff.24 Both of the notices contained warnings to the Defendant of the pending tax sale of the property and telephone numbers to call for any questions regarding the tax sale and what could be done to stop it? Mr. Heisey stated that Defendant had not paid his delinquent taxes, that his joint tenant Leslie Accristo was also properly notified of the tax sale, and that no objections to the tax sale had been filed by Defendant.26 Plaintiffs presented evidence that they had been unable to obtain insurance upon the property which they purchased, because Defendant would not leave. They also presented testimony that Defendant had threatened to damage the property and said he had a gun. Defendant, representing himself, testified that when he received notice of the tax sale he telephoned the tax office to inform it that he would be able to make payment on the tax debt in the future, but that the tax office demanded the money by the deadline. Defendant stated that he remained prepared to make payments to satisfy the debt. Defendant further testified that the joint tenant, Ms. Accristo, did not receive proper notice of the tax sale; however, Ms. Accristo did not appear at the trial and no support for Defendant's assertion regarding her was presented. 24 Plaintiffs' Exhibit 4. 25 Plaintiffs' Exhibits 3 and 4. 26 The court found Mr. Heisey's testimony credible in all respects. 7 By order of the court dated May 7, 1999, the Court rendered the verdict in favor of Plaintiffs quoted at the beginning of this opinion?? From this order, Defendant has appealed.28 DISCUSSION Nature of Appeal; Waiver In the present case, Defendant has appealed from a verdict as to which no post- trial motion was filed. Although the issue of whether a verdict which has not been reduced to judgment is appealable, and the issue of whether matters raised on appeal are to be considered to have been preserved when no motion for post-trial relief was filed, are beyond the scope of this court's obligation under Pennsylvania Rule of Appellate Procedure 1925, it may be noted that both questions have been answered in the negative. Szakmeister v. Szakmeister, 344 Pa. Super. 465, 496 A.2d 1199 (1985) (appeal quashed where verdict not reduced to judgment and no motion for post-trial relief filed). Merits of Order Appealed from In the absence of a motion for post-trial relief, and based on Defendant's statement of matters complained of an appeal, it appears that Defendant is challenging the sufficiency of the evidence to sustain the verdict. "In considering the sufficiency of the evidence to sustain the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences, and determine 27 Order of Court, dated May 7, 1999. 28 Notice of Appeal, filed June 3, 1999. whether the evidence introduced at trial was sufficient to sustain the verdict." Weir v. Weir, 428 Pa. Super. 530, 631 A.2d 657 (1993). A Plaintiff's burden in an ejectment action has been stated as follows: The plaintiff's burden in an action of ejectment is clear: he must establish a right to immediate exclusive possession. In order to recover in an ejectment action, the plaintiff must show title at the commencement of the action and can recover, if at all, only on the strength of his own title, not because of weakness of deficiency of title in the defendant. This rule places upon the plaintiff the burden of proving a prima facie title, which proof is sufficient until a better title is shown in the adverse party. It is also clear that to support an action in ejectment, the evidence must be sufficient to identify the land in dispute and establish the plaintiff's right to possession thereof. The burden of identifying and locating the land clearly rests upon the plaintiff. In this regard, plaintiff has the burden of presenting definite and certain evidence of the boundary of the property, in controversy, but a preponderance of the evidence is sufficient to establish that boundary. Hallman v. Turns, 344 Pa. Super. 189, 190, 482 A.2d 1287, 1288 (1984). Under Section 602 of the Act of July 7, 1947, P.L. 1368, as amended,29 it is provided as follows with respect to notice of a tax sale: (a) At least thirty days prior to any scheduled sale the bureau shall give notice thereof, not less than once in two newspapers of general circulation in the county, if so many are published therein, and once in the legal journal, if any, designated by the court for the publication of legal notices. Such notice shall set forth (1) the purposes of such sale, (2) the time of such sale, (3) the place of such sale, (4) the terms of the sale including the approximate upset price, (5) the descriptions of the properties to be sold as stated in the claims entered and the name of the owner. 29 72 P.S. {}5860.602 (1990). 9 (b) At least thirty days before the date of the sale, by United States certified mail, restricted delivery, return receipt requested, postage prepaid, to each owner as defined by this act. (c) Each property scheduled for sale shall be posted at least ten days prior to the sale. Based on the evidence presented at trial, Plaintiffs have shown the strength of their title to the property by virtue of proper notice and the Tax Claim Bureau deed, presented a definite and specific description of the property established a right to immediate exclusive possession. in the Complaint, and therefore There is no evidence which the court found credible that any of the statutory requirements were not met in the case sub judice. In addition, the Tax Claim Bureau was not required to waive statutory time periods for payment of taxes to accommodate Defendant's financial circumstances. For these reasons, it is believed that the evidence was sufficient to sustain the verdict in ejectment in favor of Plaintiffs. Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070 Attorney for Plaintiffs Timothy J. Bishop c/o Joel Bishop 119 Chapel Avenue Carlisle, PA 17013 Defendant, Pro Se irc 10