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HomeMy WebLinkAbout2007-5738 Civil IN RE: RETURN AND REPORT : IN THE COURT OF COMMON PLEAS OF OF AN UPSET TAX SALE : CUMBERLAND COUNTY, PENNSYLVANIA HELD BY THE CUMBERLAND : COUNTY TAX CLAIM : BUREAU ON SEPTEMBER 20, : 2007 : 07-5738 CIVIL TERM IN RE: EXCEPTIONS TO TAX SALE OPINION AND ORDER OF COURT Bayley, J., July 15, 2008:-- On September 20, 2007, a property described as “Lots 2PB41PG82 Residential Building 6495 Carlisle Pike,” owned or reputedly owned by Guy J. DePasquale, was sold at a tax sale to the Dobson Limited Family Partnership for the total of $35,289.10 which covered all costs, taxes owed, outstanding municipal liens and a lien for 1 inheritance taxes. Following receipt of a post-sale notice, Gregg Carignan filed timely “exceptions and objections to the sale” upon which a hearing was conducted on June 11, 2008. Carignan maintains that the tax sale must be set aside because: (1) the property was not properly posted, (2) he never received notification of the sale until after September 20, 2007, (3) the property was not properly described in the notices of sale, and (4) on September 20, 2007, there was a pending appeal from an assessment of the property. The Cumberland County Tax Claim Bureau and the intervenor, __________ 1 The Real Estate Tax Sale Law at 72 P.S. Section 5860.609 provides that property sold at an upset tax sale is 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.” 07-5738 CIVIL TERM Dobson -2- 07-5738 CIVIL TERM Limited Family Partnership, oppose Carignan’s claims for relief and further assert that Carignan is not the owner of the property, and therefore it was not required that he be given notice. The Real Estate Tax Sale Law at 72 P.S. Section 5860.602, titled “Notice of sale,” provides for a three notice requirement to the owner for a tax sale: (1) publication at least thirty days prior to sale; (2) notification by certified mail at least thirty days prior to sale; and (3) posting of the property at least ten days prior to sale. Section 5860.602(2) provides that if a returned receipt for the certified mail is not received from the owner “then, at least ten (10) days before the date of the sale, similar notice of the sale should be given to each owner who failed to acknowledge the first notice by United States first class mail, proof of mailing, at his last known post office address . . . .” An “owner” is defined in Section 5860.102 to include “the person in whose name the or property is last registered, if registered according to law, , if not registered according to law, the person whose name last appears as the owner of record on any deed or and in instrument of conveyance recorded in the county office designated for recording all other cases means any person in open, peaceable and notorious possession of the property, an apparent owner or owners thereof, or the reputed owner or owners thereof, in the neighborhood of such property . . . .” (Emphasis added.) The notice provisions are to be strictly construed and are intended to assure that no one is deprived of Ban v. Tax Claim Bureau of Washington property without due process of law. County, 698 A.2d 1386 (Pa. Commw. 1997). If, however, the notice requirements of 72 -3- 07-5738 CIVIL TERM P.S. § 5860.602 are not met, but the property owner receives actual notice of the sale, Casady v. Clearfield County Tax Claim Bureau the tax sale is valid. , 156 Pa. Commw. 317 (1993). I.CARIGNAN WAS NOT ENTITLED TO NOTICE OF THE TAX SALE. On August 1, 1980, Gregg Carignan entered into a written lease for the subject property with Guy J. DePasquale and Jean M. DePasquale. The term of the lease was from August 1, 1980 until July 31, 1997. Carignan has retained control of the property to date despite there being no written continuation or addendum to the lease. There is a dilapidated house on the property without electricity and water. The property contains a “mountain” of junk, trash and debris. Guy DePasquale died in the mid- 1990’s. Jean DePasquale lives in Camp Hill, Cumberland County. Gregg Carignan testified that he actually purchased the property from the DePasquales in the early 1980’s. He acknowledges that he has never received a deed to the property. He testified that he had a written agreement of sale but it is missing. Carignan produced a letter from an attorney on behalf of the DePasquales to his attorney dated March 11, 1993. It states: . . . My clients do not agree with Carignan concerning the Agreement of Sale. Either there is a lease or there is an Agreement of Sale, but if there is an Agreement of Sale it should be in line with the terms of the written Agreement which your client had prepared. Upon reflection, Mr. DePasquale agrees that the lease was preceded of the fire loss at the property. The Agreement was that DePasquales would keep the proceeds from the insurance settlement and sell the property to Carignan for $30,000.00 by use of the lease. The amount which DePasquale has received from the fire insurance has no -4- 07-5738 CIVIL TERM relevance to either the lease or the Agreement for Sale. If Carignan will not agree that the sale price is $30,000.00 then I think that we should immediately proceed with a hearing. If he agrees that there was an Agreement for Sale in accordance with the terms of the Agreement which was prepared by your client, the following amounts of money are claimed to be owing: Principal as of 12/31/92 $13,665.77 Interest for three months at $113.88 Per Month $ 341.64 Taxes from 1982-1987 $ 3,024.51 Interest on unpaid taxes through 8/31/91 $ 1,938.52 Interest on taxes from 8/31/91-2/28/93 $ 453.68 1992 Taxes $ 760.31 1993 County/Township Taxes $ 153.18 Cost paid for Installation of Sewer $ 4,407.00 Costs to restore area over water lines $ 1,378.00 Sewer lien on property $ 781.63 Total $26,903.97 The tax bill amounts are only a portion of the tax bills since this property has not been separately assessed. I have relied on Mr. DePasquale’s calculations. I believe that Mr. Carignan has paid taxes on these calculations. In the event that Mr. Carignan does not wish to proceed with purchase of the property we would be happy to release him from the obligation of the lease or the Agreement of Sale. . . . It is important that we proceed to a resolution of this matter as soon as possible. I am therefore requesting that you advise us to your client’s position by March 19, 1993. Carignan also produced a letter to him dated July 18, 2000, from an attorney on behalf of Guy J. DePasquale. It states that there was a notice of a proposed public tax sale with taxes due in the total amount of $2,049.78. “In as much as it is your responsibility to pay these taxes under your agreement with the late Mr. DePasquale, I am sending these notices to you.” Carignan testified that he finished paying the DePasquales for the property in late 1997 -- $30,000 plus interest. He presented no further evidence on his claim of an ownership interest. -5- 07-5738 CIVIL TERM Carignan has not produced evidence that he is an “owner” of the subject property who was entitled to notice of the tax sale as set forth in Section 5860.602 of the Real Estate Tax Law. The property was not registered in his name according to 2 law, nor is he the person whose name last appears as the owner of record on any deed or instrument of conveyance recorded in the office of the Recorder of Deeds of Cumberland County. Therefore, even though he was in possession of the property before the tax sale, and/or was an apparent owner or reputed owner, he was not entitled to notice pursuant to Section 5860.602. Notwithstanding that Carignan’s exceptions to the tax sale must be dismissed because he was not an owner entitled to notice under Section 5860.602 of the Real Estate Tax Sale Law, we will, as a matter of juridical economy, address the issues he raises regarding the propriety of the notices given. II. CARIGNAN’S CLAIM THAT THE PROPERTY WAS NOT PROPERLY POSTED IS WITHOUT MERIT. The subject property is identified as Lot 2 on a plan of lots for Guy and Jean DePasquale in Millwood Farm in Silver Spring Township. It is to the rear of larger Lot 1 which borders on the Carlisle Pike, U.S. Route 11. There are two buildings containing separate businesses located to the front near the Carlisle Pike. As shown on the Millwood Farm plan, Lot 2 is accessed by a fifty foot right-of-way leading to the rear of __________ 2 Real estate is to be registered in the office of County Commissioners only in counties Grace having a population of over five hundred thousand. 21 P.S. § 321. See -6- 07-5738 CIVIL TERM the property. The right-of-way extends to Birch Street that provides access to the Carlisle Pike. The “mountain” of junk, trash and debris on Lot 2 spread onto the right- of-way and was a physical impediment to reaching the lot much less the dilapidated house. On July 17, 2007, an assessor posted the property by firmly attaching a Notice of Public Sale to the back of a microwave which was visible in the pile of junk, trash and debris that ended on the right-of-way. It would have been dangerous for the assessor or any other person to wade through the material to get to the lot or the dilapidated house. Section 5860.602(e)(3) of the Real Estate Tax Sale Law requires that a property subject to an impending tax sale “be posted at least ten (10) days prior to the sale.” The Commonwealth Court of Pennsylvania has interpreted this requirement to mean “that the method of posting must be reasonable and likely to inform the taxpayer of an In re Tax Sale of 2003 Upset intended real property sale.” , 860 A.2d 1184, 1188 (Pa. Commw. 2004). The Court stated that the notice required by Section 5860.602(e)(3) serves two purposes: it provides notice of the sale to (1) the record owner and (2) the Id 2003 Upset public at large. . In, the appellant testified that the Tax Claim Bureau posted the notice of impending sale across the road from the subject property near the mailbox for the property, and not actually on the subject property, and argued that Section 5860.602(e)(3) requires the notice to be posted on the property itself. The records of the Tax Claim Bureau showed that the posting was either on a “pole by Building Co., Inc. v. Lanigan, 15 Pa. Commw. 643 (1974). -7- 07-5738 CIVIL TERM Id driveway” or on a “gate . . . across driveway.” . at 1189. The Court noted that the Id lack of a house on the property made the posting “more of a challenge.” .It reasoned that “[u]nder either factual scenario, the notice was posted in a manner where Id it was likely to be seen, notifying both [the record owner] and the general public.” . It id concluded that the posting was reasonable, ., noting that Section 5860.602(e)(3) “does not explicitly state that a notice must be posted on the property subject to sale,” id . at 1188. In the present case, the junk, trash and debris blocking the right-of-way made accessing Lot 2 not only a challenge but dangerous. Because entry to Lot 2 is accomplished via the right-of-way, which is blocked by the junk, trash and debris, the placement of the Notice of Public Sale on a microwave at the end of the junk blockade met the two purposes of such notice by being placed where “it was likely to be seen, notifying both [the record owner] and the general public” of the sale. Although the end of the blockade is not on Lot 2, the posting was at the nearest conspicuous point on the right-of-way so that any person using it to reach Lot 2 would see it on the approach. In reTax Sale of 2003 Upset The Commonwealth Court in made clear that placement of the notice on the property itself is not explicitly required by Section 5860.602(e)(3). We find that the Notice of Public Sale in the instant matter, by being conspicuous to anyone attempting to gain entry to Lot 2, was reasonable and satisfied the requirements of the statute. III. CARIGNAN’S CLAIM THAT HE NEVER RECEIVED NOTIFICATION OF THE -8- 07-5738 CIVIL TERM SALE UNTIL AFTER SEPTEMBER 20, 2007, DOES NOT PROVIDE HIM RELIEF. Carignan acknowledged that his mailing address is 3507 Magaro Road, Camp -9- 07-5738 CIVIL TERM 3 Hill, Pennsylvania. On July 9, 2007, the Cumberland County Tax Claim Bureau sent Carignan a certified notice at his Magaro Road address of the tax sale scheduled for September 20, 2007. The certified mail was returned to the Tax Claim Bureau as “unclaimed.” On August 29, 2007, the Tax Claim Bureau sent, by regular mail, notice of the upset sale scheduled for September 20, 2007, to Carignan at his Magaro Road, Camp Hill address. Notice was not returned to the Bureau. Carignan testified that he was away for several weeks and received the regular mail notice upon his return to 4 3507 Magaro Road after September 20, 2007. That makes no difference because the Tax Claim Bureau sent Carignan, at his place of residence, a presale notice by certified mail more than thirty days prior to September 20, 2007, and when that was returned unclaimed, it sent Carignan the presale notice by regular mail more than ten days before September 20, 2007. That complied with Section 5860.602 of the Real Estate Tax Sale Law. IV. CARIGNAN’S CLAIM THE PROPERTY WAS NOT PROPERLY DESCRIBED IN THE NOTICES OF SALE IS WITHOUT MERIT. Carignan maintains that the presale notice describing the subject property as “Lots 2PB41PG82 Residential Building 6495 Carlisle Pike,” is deficient because there was no indication that Lot 2 was at the rear of the property. The fact that Lot 2 is at the __________ 3 This is the same mailing address that the Cumberland County Tax Claim Bureau used to provide him notice of a prior scheduled upset tax sale of the subject property in 2006. -10- 07-5738 CIVIL TERM 4 He filed these timely post-sale exceptions and objections on October 30, 2007. -11- 07-5738 CIVIL TERM rear of the property is of no significance because the notice adequately described the property as Lot 2 on the recorded plan at 2PB41PG82 with an address at 6495 Carlisle Pike. The property was adequately described. V. A LONG PENDING ASSESSMENT APPEAL DOES NOT PROVIDE CARIGNAN WITH RELIEF. An order of assessment on the subject property was made on October 28, 2005. Carignan appealed the assessment on November 29, 2005, at 05-6075. There is no further entry on the docket. Carignan argues that the property could not be sold for unpaid taxes while this assessment appeal is pending. There is no legal authority to support this illogical position. Furthermore, Carignan is not an owner of the subject property with standing to challenge an assessment. ORDER OF COURT IT IS ORDERED AND NOW, this day of July, 2008, that the ARE exceptions of Gregg Carignan to the tax sale of September 20, 2007, DISMISSED. By the Court, Edgar B. Bayley, J. Norman M. Yoffe, Esquire For Dobson Limited Family Partnership Stephen D. Tiley, Esquire For Tax Claim Bureau of Cumberland County -12- 07-5738 CIVIL TERM Gregg Carignan, Pro se 3507 Magaro Road Camp Hill, PA 17011 :sal -13- IN RE: RETURN AND REPORT : IN THE COURT OF COMMON PLEAS OF OF AN UPSET TAX SALE : CUMBERLAND COUNTY, PENNSYLVANIA HELD BY THE CUMBERLAND : COUNTY TAX CLAIM : BUREAU ON SEPTEMBER 20, : 2007 : 07-5738 CIVIL TERM IN RE: EXCEPTIONS TO TAX SALE ORDER OF COURT IT IS ORDERED AND NOW, this day of July, 2008, that the ARE exceptions of Gregg Carignan to the tax sale of September 20, 2007, DISMISSED. By the Court, Edgar B. Bayley, J. Norman M. Yoffe, Esquire For Dobson Limited Family Partnership Stephen D. Tiley, Esquire For Tax Claim Bureau of Cumberland County Gregg Carignan, Pro se 3507 Magaro Road Camp Hill, PA 17011 :sal