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HomeMy WebLinkAbout2007-5738 Civil (2) 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., August 21, 2008:-- On September 20, 2007, a property at 25 Penny Lane, Enola, Pennsylvania, owned and occupied by Davidson M. Black and containing an attached mobile home on approximately 23 acres in Silver Spring Township, Cumberland County, was sold at an 1 upset tax sale to Martin Weller. On the same day, Weller executed an assignment to James P. Halkias. On November 29, 2007, Davidson Black filed exceptions to the confirmation of the tax sale. He maintains the sale should be vacated because he was never personally served with the notice required in the Real Estate Tax Sale Law at 72 P.S. Section 5860.601(a)(3). That Section provides: No owner-occupied property may be sold unless the bureau has given the owner occupant written notice of such sale at least ten (10) days prior to the date of actual sale by personal service by the sheriff or his deputy . . . . The sheriff or his deputy shall make a return of service to the bureau . . . setting forth the name of the person served, the date and time and place of service, and attach a copy of the notice which was served. If such personal notice cannot be served within twenty-five (25) days of the request by the bureau to make such personal service, the bureau may petition the court of common pleas to waive the requirement of personal notice for good cause shown. (Emphasis added.) __________ 1 The unpaid taxes were for 2005. The upset price was $6,815.01. The total paid was $10,035.35. 07-5738 CIVIL TERM A hearing was conducted on July 31, 2008. Leading up to the tax sale on September 20, 2007, the Cumberland County Tax Claim Bureau sent all of the notices and posted the property as required in Section 5860.602 of the Real Estate Tax Sale law. Davidson Black was present when Mary Ann Snyder, an assessor, posted the property on April 17, 2006. She saw Black take the posting off the front door of his mobile home. Black testified at the hearing and said that he was an “under-the-table” truck driver and often is not at his property. He testified that he was not present when Snyder posted the property. David McKinney, a Deputy Sheriff of Cumberland County, filed an affidavit of return that he personally served an upset tax sale notice upon Davidson M. Black at 25 Penny Lane, Enola, Pennsylvania, at 6:40 p.m., on August 14, 2007, while “[a]t the same time directing His attention to the contents thereof.” At the hearing, McKinney, who is now retired, testified that he remembered serving the notice. A man opened the front door of the home and McKinney asked him if he was Davidson Black. The man said he was Davidson Black. McKinney handed him the notice. The man asked what it was. McKinney told him it was a tax sale and he should read it over and do what he had to do. McKinney could not identify Davidson Black, who was in the courtroom, as the person he served. He testified that George Bilkovsky, who was in the courtroom, was not the person he served. Later, however, he was asked by counsel for Black the following: “if I told you that in fact the person sitting next to me is the person that you handed the paperwork to [referring to Bilkovsky], do you think that would be correct or -2- 07-5738 CIVIL TERM incorrect?” McKinney answered: “I don’t know. As I said, I serve so many papers.” The Cumberland County Courthouse opens at 8:00 a.m. weekdays. Melissa Mixell, the Director of the Tax Claim Bureau, made a memorandum of the following occurrence on the day after the upset tax sale. On September 21, 2007 around 8:35 a.m., Mr. Black came to the office to pay his taxes. I told him that the tax sale was yesterday and that his property had been sold. He told me to rescind the sale and tossed a pack of bills across the counter. I told him that I was not going to rescind the sale. He said I had no right to sell peoples personal property that it is in the constitution. I told him that we are following statute. He then said that he was out of town and that he called in and told someone that he would be in the day after the sale. I checked the notes on his account and there were none. I asked Jennifer if she had any calls from Mr. Black and she said no. All voicemails were checked up to time of sale and afterward, no call from Mr. Black. He again said that I had to rescind the sale. I told him he needs to file an objection. He then wanted me to give him the paperwork to do that. I told him that he need [sic] to file a petition with the Prothonotary objecting to the sale, either prepared by him or his lawyer. He then left the office (cursing) and went to the assessment information office. Davidson Black testified that he was not at his property on August 14, 2007, and was not personally served with a notice of the tax sale. He testified that he was ill on September 20, 2007, had lost track of the sale date, but went to the Tax Claim Bureau the next morning with enough cash to pay the taxes. He was told that the sale had occurred the day before. George “Buz” Bilkovsky, who Davidson Black identified in his exceptions as Steve “Buz” Harper, testified that he knew Davidson Black for about 15 years. He was living in Michigan and visiting Black at 25 Penny Lane when Deputy Sheriff McKinney -3- 07-5738 CIVIL TERM arrived. Black was not there. Bilkovsky testified that McKinney asked if this was Davidson Black’s place, but did not ask if he was Davidson Black. Bilkovsky testified that he told the sheriff that it was Davidson Black’s property. McKinney handed him some papers and told him that he should be sure that Black got them. Bilkovsky, who stated that he now lives with Black at 25 Penny Lane, testified that he put the papers on a shelf of a shed; he thinks he saw Black “maybe three days later;” and he does not think he told Black about the notice. Black testified that the tax sale notice was not on the shelf of his shed and he never received it. The Tax Claim Bureau and the intervenor Halkias initially maintain that the court does not have to make a finding that Black was personally served with the notice of the tax sale set forth in Section 5860.601(a)(3) of the Real Estate Tax Sale law because he In re Sale of Real Estate by Montgomery had actual notice. We disagree. In , 836 A.2d 1037 (Pa. Commw. 2003), the Commonwealth Court of Pennsylvania stated: Section 602 of the Real Estate Tax Sale Law (Tax Sale Law), 72 P.S. § 5860.602, imposes a series of notification requirements—by publication, certified mail, posting, and in some cases personal service— before a county tax claim bureau can sell real property for delinquent taxes. The Law’s notice provisions are to be strictly construed, and the tax sale is void if any of the required types of notice is defective. Ban v. Tax Claim Bureau of Washington County, 698 A.2d 1386 (Pa. Cmwlth.1997). Actual notice of a pending tax sale waives strict compliance with the notice requirements. Stanford-Gale v. Tax Claim Bureau of Susquehanna County, 816 A.2d 1214 (Pa.Cmwlth.2003). Waiver by actual notice, however, does not waive the requirement that the property is properly posted within the meaning of the tax sale law because posting is required to provide sufficient notice to both the owner and the public at large of the -4- 07-5738 CIVIL TERM Id. pending sale. The court further stated: Section 601(a)(3) of the Tax Sale Law provides in unequivocal terms that no owner-occupied property may be sold unless the owner has been personally served with notice of the sale. 72 P.S. § 5860.601(a)(3). As relied upon by the trial court, Hollinger [v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965)] states, “in the absence of fraud, the return of service of a sheriff, which is full and complete on its face, is conclusive and immune from attack by extrinsic evidence.” 416 Pa. at 476, 206 A.2d at 3. The conclusive nature of the sheriff’s return of service is limited to the facts stated in the return of which the sheriff has personal knowledge. Id. The rule of conclusiveness is based on the presumption that the sheriff acted with propriety in the conduct of his official duties. Id. “The presumption is rebuttable and must yield if the evidence indicates the contrary.” In re Upset Sale, Tax Claim Bureau of Montgomery County, 68 Pa. Cmwlth. 180, 448 A.2d 696, 699 (1982). Montgomery In , the Commonwealth Court reversed an order of a trial court, which had denied an owner-occupant’s exceptions and confirmed the sale of a property because the evidence did not support a conclusion that the owner-occupier was personally served with a notice of the tax sale as required by 72 P.S. Section 5860.601(a)(3), and the evidence did not support a finding that the property was properly posted as required in 72 P.S. Section 5860.602(e)(3). Section 5860.601(a)(3) may be sold unless mandates that “no owner-occupied property the bureau has given the owner-occupant written notice of such a sale at least ten (10) days prior to the date of the actual sale by personal service by the sheriff or his deputy,” (emphasis added), and “if such personal notice cannot be served . . . the bureau may petition the court of common pleas to waive the requirement of personal notice for good cause shown . . . .” Like the posting requirement in Section 5860.602(e)(3), the personal service requirement on the owner of an owner-occupied property required in Section -5- 07-5738 CIVIL TERM 5860.601(a)(3) before a property may be sold is not cured by prior actual notice of the date of the tax sale. After careful consideration and weighing the credibility of all of the witnesses, we find that on August 14, 2007, David McKinney personally served Davidson Black at 25 Penny Lane, Enola, with a notice of the upset tax sale scheduled for September 20, 2007. It is not reasonable to believe that the Deputy Sheriff, who was under a duty to make personal service of the notice on Davidson Black, would have gone to Black’s property and not asked the person who answered the door if he was Davidson Black. McKinney testified that the man he served identified himself as Davidson Black. George Bilkovsky’s testimony is generally, and specifically as it conflicts with the testimony of David McKinney, not credible. Furthermore, for Bilkovsky to say that he put the tax sale notice on a shelf in a shed and never told Black about it, and for Black to say that the notice is not on the shelf, simply is not believable. Black’s testimony as to why he did not pay the taxes before his property was sold on September 20, 2007, conflicts with what he told the Director of the Tax Claim Bureau when he came to her office on September 21, 2007. Black is generally not credible. Unlike the owner- In re Sale of Real Estate by Montgomery, supra occupant in , who had “not proven himself to be a willful, persistent, and long-standing tax delinquent,” Black is the opposite. On September 27, 2001, he paid his 1999 taxes on the date of the scheduled upset sale on September 27, 2001. He paid his 2000 taxes on September 5, 2002, before an upset sale on September 26, 2002. He paid his 2002 taxes on July 28, 2004, -6- 07-5738 CIVIL TERM before an upset sale on September 23, 2004. He paid his 2003 taxes on September 16, 2005, before an upset sale on September 22, 2005. He paid his 2004 taxes on -7- 07-5738 CIVIL TERM 2 September 12, 2006, before an upset sale on September 21, 2006. Finding that Davidson Black, the owner-occupant of 25 Penny Lane, Enola, Pennsylvania, was personally served with the notice of tax sale as required in Section 5860.601(a)(3) of the Real Estate Tax Sale Law, and that all other requirements of that law pertaining to the sale on September 20, 2007 have been met, the following order is entered. ORDER OF COURT AND NOW, this day of August, 2008, the exceptions of Davidson Black to the tax sale of 25 Penny Lane, Enola, Pennsylvania on September 20, 2007, ARE DISMISSED. By the Court, Edgar B. Bayley, J. Norman M. Yoffe, Esquire For James P. Halkias Stephen D. Tiley, Esquire For Tax Claim Bureau of Cumberland County Douglas Miller, Esquire For Davidson Black :sal __________ 2 He paid his 2000 taxes on June 30, 2003; therefore, he was not listed for an upset sale on September 25, 2003. -8- 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 AND NOW, this day of August, 2008, the exceptions of Davidson Black to the tax sale of 25 Penny Lane, Enola, Pennsylvania on September 20, 2007, ARE DISMISSED. By the Court, Edgar B. Bayley, J. Norman M. Yoffe, Esquire For James P. Halkias Stephen D. Tiley, Esquire For Tax Claim Bureau of Cumberland County Douglas Miller, Esquire For Davidson Black :sal