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HomeMy WebLinkAbout2003-5260 CivilJOANNE H. VOELKEL V. TAX CLAIM BUREAU OF CUMBERLAND COUNTY And MICHAEL J. HIGG1NS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2003-5260 CIVIL 2003 CIVIL ACTION - LAW IN RE: OBJECTIONS TO TAX SALE BEFORE GUIDO, J. OPINION AND ORDER OF COURT Currently before us are the objections filed to the tax sale for the property at 7-9 West Green Street, Mechanicsburg, Cumberland County, Pennsylvania. The parties have stipulated that all statutorily mandated notices, and publications, except for the posting of the property, were properly given. will be sustained. For the reasons hereinafter set forth, the objections F1NDINGS OF FACT The property in question is a duplex located at 7 and 9 West Green Street, Mechanicsburg, Pennsylvania. Both units are listed together on the tax records as parcel # 19-23-0565-002. They are non-owner occupied rental units which have been owned by Objector since 1972. They were sold by the Cumberland County Tax Claim Bureau at the upset tax sale held on September 25, 2003, as a result of delinquent taxes dating back to 2001. Objector does, however, contend that the substance of the notice was defective. NO. 2003-5260 CIVIL Objector received several notices of her delinquencies. On July 21, 2003, she received notice of the pending tax sale and the upset amount of $3349.55. The notice also contained the following relevant language: "The Sale of this property may, AT THE OPTION OF THE BUREAU, be stayed if the owner thereof on or before the sale date, enters into an agreement with the BUREAU to pay the taxes, claims and costs in installments pursuant to the provisions of Section 603 of the Real Estate Tax Sale Law (72 P.S. {}5860.603). Such agreements are only allowed if at least 25% of the total claim is paid, and then ONLY AT THE OPTION OF THE BUREAU. THE CUMBERLAND COUNTY TAX CLAIM BUREAU OPTS NOT TO ENTER INTO SUCH AGREEMENTS, THEREFORE ALL 2001 AND OR PRIOR TAXES, INTEREST AND COSTS MUST BE PAID BY THE ABOVE SALE DATE.2 An identical notice with the same relevant language was posted on the door at 7 West Green Street on September 8, 2003. Historically the Bureau had allowed delinquent taxpayers to enter into the installment agreements referred to in the above notice. However, since 2001 the Bureau has had a written policy which provides as follows: In previous administrations, agreements with taxpayers to pay delinquent taxes in installments were made verbally. In 1976 a program was initiated whereby the taxpayer had to sign a written agreement to pay their taxes in installments. Then in 1979 a policy was initiated to have the taxpayer who was under an agreement, pay the full claim in twelve (12) installments within one year of the agreement. The present policy, which was initiated in July of 2001, requires the taxpayer to pay the full amount due on the sale or any prior years by the day of the upset tax sale to avoid being auctioned. This policy is stated on the Notice of Return as well as the Notice of Public Tax Sale. If the taxpayer cannot pay the full amount by the scheduled upset sale date, but partial payments have been made up until that time, an extension of time may be granted. This extension is up to 75 days from the scheduled sale or until the date of the continued upset 2 Respondent's Exhibit 6. NO. 2003-5260 CIVIL sale, whichever occurs first. This may or may not be a written agreement, but is noted on the taxpayers account.3 (emphasis added) While the Bureau has no hard and fast rule, the taxpayer is generally required to pay 50% of the outstanding balance to secure the extension referred to in its written policy. However, in some cases the Bureau has accepted much less than the 50% and has extended the 75 days to a longer period.4 Prior to the sale at issue Objector made several calls to the Tax Claim Bureau to inquire as to what she could do to avoid having her property sold. She was advised that she needed to pay the entire upset amount of $3349.55. When she remarked that she did not have several thousand dollars, she was told that "Payments would be helpful." In response to the advice from the Bureau, Objector mailed in three $400 checks. Two checks were received and cashed before August 26, 2003. The third $400 check was mailed on September 25, 2003, but was not received by the Bureau until after the sale. It was returned uncashed. Objector was never given notice of the Bureau's written policy on extensions or the unwritten exceptions that have been made to it. CONCLUSIONS OF LAW 1.) The substance of the notices given to Objector was satisfactory under the law. 2.) The property was properly posted. 3.) Objector was denied due process and equal protection in that the procedure in this case was fundamentally unfair. See Respondent's Exhibit 2. (Exhibit 1 attached thereto). In at least two cases the Bureau stayed the sale with no money down. NO. 2003-5260 CIVIL DISCUSSION Objector first argues that the County has no authority to opt out of the installment agreements provided for in Section 603 of the Real Estate Tax Sale Law.5 Therefore, she contends that the notice she was given was fatally defective because of the inclusion of the following language: THE CUMBERLAND COUNTY TAX CLAIM BUREAU OPTS NOT TO ENTER INTO SUCH AGREEMENTS, THEREFORE ALL 2001 AND OR PRIOR TAXES, INTEREST AND COSTS MUST BE PAID BY THE ABOVE SALE DATEfi Objector's first argument runs contrary to the clear wording of the statute which provides, inter alia, as follows: Any owner or lien creditor of the owner may, at the option of the bureau, prior to the actual sale... (2) enter into an agreement, in writing, with the bureau to stay the sale of the property upon the payment of twenty-five per centum (25%) of the amount due on all tax claims and tax judgments filed or entered against such property and the interest and costs on the taxes returned to date, as provided by this act, and agreeing therein to pay the balance of said claims and judgments and the interest and costs thereon in not more than three (3) installments all within one (1) year of the date of said agreement, 75 P.S. {} 5860.603 (emphasis added). Furthermore, referring to Section 603, the Commonwealth Court has specifically said that "a tax bureau is not required to enter into such an agreement." Eathorne v. Westmoreland County Tax Claim Bureau, 2003 W.L. 23277315 (Pa. Cmwlth). Therefore, we are satisfied that the substance of the notice given to Objector was appropriate. Objector next argues that the property was improperly posted. This position is based upon the fact that the required notice was posted only on the door at 7 West Green 72 P.S. § 5860.603. See Respondent's Exhibit 6. NO. 2003-5260 CIVIL Street and not on both rental units. However, Objector has not provided, nor did we find, any authority for the position she asks us to adopt. On the contrary, we believe that the clear language of the statute supports the conclusion that the posting was proper. Section 602(e)(3) of the Real Estate Tax Sale Law provides: "Each property scheduled for sale shall be posted at least ten (10) days prior to the sale.7 The Act defines "Property" as "real property.., subject to a tax lien or against which a claim is being or has been filed as a lien.''8 In the instant case the "property scheduled for sale" and the property "subject to a tax lien" was tax parcel #19-23-0565-002. That property was properly posted. Notwithstanding the above discussion, we are constrained to set aside the upset tax sale under the facts of this case. In Appeal of Matra, 126 Pa. Commw. 280, 559 A.2d 600 (1989)the Commonwealth Court stated: The Pennsylvania Constitution and the United States Constitution through the Fourteenth Amendment provide that no person shall be deprived of his property except by due process of law. Thus, we have consistently held that the notice provision of tax sale statutes must be strictly complied with in order to guard against depriving a person of his interest in his property without due process of law In Ross Appeal, citing 147esterwick, 366 Pa. at 98, 76 A.2d at 748, our Supreme Court recognized that in these types of sales, due process encompasses fundamental procedural fairness. The tax collection authorities were reminded that, "the purpose of tax sales is not to strip the tax payer of his property but to insure the collection of taxes." The taxing authorities should not ignore common sense business practices. 559 A.2d at 600-601 (emphasis added). Citing the same "fundamental procedural fairness" as well as equal protection considerations, the Commonwealth Court overturned 7 72 P.S. § 5860.602(e)(3). 8 72 P.S. § 5860.102. NO. 2003-5260 CIVIL the tax sale in Darden v. Montgomery County Tax Claim Bureau, 157 Pa. Commw. 357, 629 A.2d 321 (1993). As the Court noted: a stay is only granted at the arbitrary and discriminatory discretion of the director of the Bureau without any standards governing a grant or denial; and preferential stays were granted to others who paid nothing on delinquent taxes while Darden was denied a stay after having paid over 88% of her taxes, thereby implicating equal protection and due process considerations. 629 A.2d at 324. In the instant case, the Bureau had a written policy that governed the grant or denial of stays. However, Objector was never given notice of that policy. In response to her inquiries as to what she could do to keep her property from being sold, she was simply told that "Payments would be helpful." She mailed three payments totaling more than 33% of the upset price by the day of the sale. Under these circumstances, we feel that "fundamental procedural fairness" required that she have been given notice of the Bureau's written policy. At the very least, when the partial payments were made in reliance upon the Bureau's advice, and accepted by the Bureau, it was incumbent upon the Bureau to advise her of its written policy and to review her situation to determine if a stay and extension would be appropriate. Failure to do so in her case, when it had done so in others, deprived her of both due process and equal protection. For this reason, the objections will be granted and the upset tax sale will be set aside. NO. 2003-5260 CIVIL ORDER OF COURT AND NOW, this 30TM day of MARCH, 2004, for the reasons set forth in the accompanying opinion the upset tax sale of September 25, 2003, involving the property at 7-9 West Green Street, Mechanicsburg, Pennsylvania, Cumberland County tax parcel # 19-23-565-002 IS SET ASIDE. By the Court, Norman M. Yoffe, Esquire Dale F. Shughart, Jr., Esquire Stephen D. Tiley, Esquire :sld /s/Edward E. Guido Edward E. Guido, J.