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HomeMy WebLinkAbout98-5973 civilIN RE~ RETURN AND REPORT OF TAX SALE HELD BY TAX CLAIM BUREAU ON SEPTEMBER 28, 1998 IN RE: · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA 98-5973 CIVIL OBJECTIONS AND EXCEPTIONS TO TAX SALE OPINION AND ORDER OF COURT Bayley, J., August 16, 1999:- Pv-r Enterprises Partnership was the owner of a vacant apartment building in significant disrepair at 24 Hollar Avenue in the Borough of Shippensburg, Cumberland County. The address of PVT Enterprises Partnership is 1515 North Dupont Highway, New Castle, Delaware. The managing partner is Amar Tailor. Tailor takes care of all matters involving Pv-r Enterprises Partnership. Tailor and his family operate several businesses out of 1515 North Dupont Highway, New Castle, Delaware. One of those businesses is the Red Rose Inn. In June, 1997, the Cumberland County Tax Claim Bureau sent by certified mail a notice to "PVT Enterprises Partnership cio Amar Tailor," 1515 North Dupont Highway, New Castle, Delaware 19720. Tailor signed the certified mail receipt on June 30, 1997, although his signature is illegible? The notice advised PVT Enterprises Partnership that the 24 Hollar Avenue, Shippensburg property was returned to the Tax This certified mail was not marked for restrictive delivery. 98-5973 CIVIL TERM Claim Bureau for nonpayment of taxes, and (1) if the taxes were not paid by December 31, 1997, a redemption period of one year would commence as of July 1, 1997, and (2) if the taxes were not paid at the end of the redemption period the property would be sold by {he Bureau. The taxes were not paid by December 31, 1997. In June, 1998, Amar Tailor inquired by phone with the local tax collector about what taxes were due? He was told that past due taxes had been returned to the Tax Claim Bureau. The taxes were not paid by June 30, 1998, which was the end of the one-year redemption period. In August, 1998, the Tax Claim Bureau sent a notice by certified mail to "Amar Tailor cio Amar Tailor," at 1515 North Dupont Highway, New Castle, Delaware 19720. The notice set forth that "24 Hollar Avenue, Apartment Bldg., Shippensburg Borough, owned by PVT Enterprises Ptnshp, cio Amar Tailor, 1515 North Dupont Avenue, New Castle, Delaware 19720," would be sold at a tax sale to be held in the Cumberland County Courthouse, Carlisle, Pennsylvania at 10:00 a.m., September 28, 1998. The upset price was $7,020.78. The certified mail receipt, which was marked for restrictive delivery, was returned dated June 5, 1998, with a signature that is illegible. Because the notice was sent in August and returned in August it was obviously signed on August 5, 1998, rather than June 5, 1998. 2 Tailor testified that he had not been to the Shippensburg Property in "a few years." -2- 98-5973 CIVIL TERM The taxes were still not paid and the property was sold on September 28, 1998, to Elam Reiff and Mary Reiff for $18,632.33. With transfer tax and recording fees the total amount paid by the Reiffs was $20,321.30. On October 2, 1998, the Tax Claim Bureau sent a notice by certified mail, marked restrictive delivery, to "PVT Enterprises Partnership cio Amar Tailor," 1515 North Dupont Highway, New Castle, Delaware 19720, advising the taxpayer that 24 Hollar Avenue, Shippensburg, had been sold at a tax sale on September 28, 1998, and that it could file objections or exceptions to the sale not later than thirty days following the confirmation nisi of the return by the court. The certified mail receipt was signed by Amar Tailor on October 23, t998, although his signature is illegible. On November 20, 1998, PVT Enterprises Partnership filed objections and exceptions to the tax sale of its property on September 28, 1998. Elam Reiff and Mary Reiff intervened. A hearing was conducted on June 23, 1999. At the hearing, Amar Tailor testified that although he has no specific recollection of receiving it, his signature is on the certified mail receipt of the notice sent on June 30, 1997, which sets forth that if taxes were not paid within a one year redemption period ending on June 30, 1998, PVT Enterprises Partnership's property at 24 Hollar Avenue in Shippensburg would be sold by the Cumberland County Tax Claim Bureau. He testified that when he talked with the local tax collector by telephone in June, 1998, and was told that past due taxes had been returned to the Tax Claim Bureau, he was not told that the property was in a position of being sold. Tailor testified that the illegible signature on the receipt of the certified mail on August 5, 1998, containing the notice of -3- 98-5973 CIVIL TERM the scheduled tax sale on September 28, 1998, is that of Jay Nathoo, a desk clerk at the Red Rose Inn. Nathoo did not testify. Tailor testified that he does not recall seeing the notice, does not know what happened to it, that Nathoo is not an employee of PVT Enterprises Partnership, he knows of no other occasion of Nathoo accepting certified mail addressed to the Partnership, and that he never authorized Nathoo or anyone else to sign for restrictive delivery mail to the Partnership. Tailor testified "1 really don't have any answer as to how I didn't see" the notice he says Nathoo signed for on August 5, 1998. He further testified that in that time period his father had a heart attack, Other businesses of his family required his attention, and some of those businesses were contracting companies with ongoing projects so he was out of the office at job sites most of the time. Tailor testified that he did sign the certified mail receipt on October 23, 1998, containing the notice that 24 Hollar Street, Shippensburg, had been sold on September 28, 1998, and that objections to the sale and exceptions could be filed? That notice resulted in the filing of these objections and exceptions on November 20, 1998. Jacob Heisey, the Director of the Cumberland County Tax Claim Bureau, testified that after the notice that the subject property was sold on September 28, 1998, 3 To the court's eye the illegible signatures on the two notices that Tailor said he signed look like the same signature. The illegible signature on the notice that Tailor says Nathoo signed looks different from the other two. 98-5973 CIVIL TERM was sent on October 2, 1998, to PV'I' Enterprises Partnership c/o Amar Tailor at 1515 North Dupont Highway, New Castle, Delaware, Amar Tailor telephoned him and wanted to know what he had to do to object to the sale. Heisey testified that Tailor told him that he had received the notice of the sale rescheduled for September 28, 1998, but that he had an illness in his family. When Amar Tailor testified he acknowledged that he did call Heisey after he received notice that the property had been sold. He said, however, "1 don't recall telling him I received the August presale notice." DISCUSSION In the Real Estate Tax Sale Law at 72 P.S. Section 5860.602, titled "Notice of sale," a three notice requirement to the owner for a tax sale is set forth: (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. An "owner" is defined in Section 5860.102 to include "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 the owner of record on any deed or instrument of conveyance recorded in the county office designated for recording .... "The entity PVT Enterprises Partnership is the owner in this case. The notice provisions are to be strictly construed and are intended to assure that no one is deprived of property without due process of law. Ban v. Tax Claim Bureau of Washington County, 698 A.2d 1386 (Pa. Commw. 1997). If, however, the notice requirements of 72 P.S. § 5860.602 are not met, but the property owner receives actual notice of the sale, the tax sale is -5- 98-5973 CIVIL TERM valid. Casady v. Clearfield County Tax Collection Bureau, 156 Pa. Commw. 317 (1993). PVT Enterprises Partnership maintains that the August, 1998, notice of the tax sale scheduled for September 28, 1998, was defective (1) because the notice sent in August, 1998, was addressed to "Amar Tailor, c/o Amar Tailor" at 1515 North Dupont Highway, New Castle, Delaware, and not the taxpayer PVT Enterprises Partnership, and (2) that the certified receipt for that notice was not signed by an authorized agent of Pv'r Enterprises Partnership. The Partnership further maintains that it did not have actual notice of the date of the sale. In Sabbeth v. Tax Claim Bureau of Fulton County, 714 A.2d 514 (Pa. Commw. 1998), allocatur denied, 1999 Pa. LEXIS 1045, the Commonwealth Court stated: Black's Law Dictionary 1061-1062 (6th ed.1990) defines actual notice as follows: Actual notice has been defined as notice expressly and actually given, and brought home to the party directly. 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 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 knowledge was sufficient to put him upon inquiry. [VV]e agree that the definition of actual notice encompasses both express and implied actual notice. In Sabbeth, the property owner sought to invalidate a tax sale on the grounds of defective personal notice. Prior to 1994, all taxes were paid; however, they were not -6- 98-5973 CIVIL TERM paid in 1994 and 1995. Notices of the tax delinquency were sent to Sabbeth, posted on the property and published in newspapers. On August 5, 1996, notice of the public sale was sent by certified mail to Sabbeth. An employee of Sabbeth's husband's company signed for the certified mail. Pursuant to this company's practice, the employee placed the notice in Sabbeth's office on her desk. Sabbeth visited this office on a weekly basis. On August 25, 1996, the Tax Claim Bureau sent a final notice to Sabbeth by regular mail. Sabbeth claimed to have first read the notice sent to her by certified mail on September 30, 1996, fifty-three days after its receipt and also the day of the tax sale. The Commonwealth Court found that Sabbeth had implied actual notice of the tax sale and, accordingly, had a duty to make further inquiry about the sale. Relative to Sabbeth's receiving actual notice, the Court stated: The record is replete with facts which show that Sabbeth had implied actual notice of the tax sale and therefore had a duty to undertake further inquiry. Sabbeth was certainly aware of the jeopardy that the subject property was facing. Sabbeth had previously paid taxes on the subject property, but then failed to pay the taxes for a period of two years. That Sabbeth had previously paid the taxes assessed on the subject property leads to the conclusion that she knew taxes were assessed on the property. Knowing such, Sabbeth would have had to conclude that the non-payment of assessed taxes would result in consequences of some sort. Additionally, the circumstances under which Sabbeth asserts that she was without actual notice of the tax sale are nothing short of incredible. Sabbeth received notices for two years stating that the taxes assessed on the subject property were in arrears .... Most importantly, Sabbeth regularly went to her office to review the mail. It was in this office where a certified letter of notice from the Bureau remained upon her desk unattended for fifty-three days until its discovery the very day of the tax sale. -7- 98-5973 CIVIL TERM In finding that Sabbeth had actual notice of the tax sale, the Court held that strict compliance with the statutory notice requirements was waived and the sale was valid. In the case sub judice, the address of the owner of the property, PVT Enterprises Partnership, is 1515 North Dupont Highway, New Castle, Delaware. Amar Tailor is the managing partner who takes care of all matters involving the entity PVT Enterprises Partnership. Service of documents on a partnership may be made on any partner, an agent authorized by the partnership, or the person in charge of any regular place of business or activity of the partnership. Pa. Rule of Civil Procedure 423. Notice to Amar Tailor at the PVT Enterprises Partnership office that the Partnership property would be sold on September 28, 1998, constitutes notice to the owner? The Cumberland County Tax Claim Bureau first notified PV-I' Enterprises Partnership by certified mail in June, 1997, that the taxes on its Shippensburg property were delinquent and that if they were not paid by December 31, 1997, a redemption period of one year would begin on July 1, 1997, and if the taxes remained unpaid at the end of the one year redemption period, i.e., June 30, 1998, the Tax Claim Bureau would sell the property. Tailor testified and acknowledged that he signed for the certified mail on June 30, 1997. The taxes were not paid by December 31, 1997. ' This is in contrast to where partnership property rather than being in the name of the partnership entity is in the name of the individual partners. In that type of a case notice must be sent to each partner as an owner. Boehm v. Barnes, 63 Pa. Commw. 87 (1981). The Commonwealth Court stated in Boehm, however, "[t]hat the bureau is under no obligation to notify 'silent' partners or those partners whose names do not appear on the tax records." -8- 98-5973 CIVIL TERM Tailor testified and acknowledged that in June, 1998, he telephoned the local tax collector asking what taxes were due and was told that past due taxes had been returned to the Tax Claim Bureau. According to Tailor, in August, 1998, Jay Nathoo, an employee of a Tailor family company operating at 1515 North Dupont Highway, New Castle, Delaware, signed without authorization for the certified letter addressed to Tailor containing notification to PVT Enterprises Partnership that the property was going to be sold at a tax sale on September 28, 1998. Tailor testified that he (1) does not recall seeing the notice,5 (2) does not know what happened to it, and (3) really does not have any answer as to how he did not see it. Notwithstanding that Jay Nathoo is an employee of a Tailor family business operating out of the same address as PVT Enterprises Partnership, the Partnership did not call him as the witness in order to corroborate that he signed for the certified notice despite not being authorized to do so, or to explain what happened to that notice. The missing witness rule is that: [w]hen a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person's testimony would not be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference it would have been unfavorable. ¢ommor~wealth v. Moore, 453 Pa. 302 (1973). The rule applies in both civil and criminal cases. KoYach v. Solomon, 1999 WL 274980 (Pa. Super. 1999). The knowledge that Amar Tailor testified that Jay Nathoo has with respect to ~ Interestingly, Tailor testified that although he did sign for the certified notice sent a year earlier in June, 1997, he had no specific recollection of having received it. -9- 98-5973 CIVIL TERM receiving the notice of the tax sale, and what he did with the notice, was not available to the Tax Claim Bureau. The signature on the return receipt card was illegible and the Bureau knew nothing about Nathoo until Tailor testified at the hearing on June 23, 1999. Nathoo's testimony would be far more than cumulative. It could corroborate essential parts of Tailor's testimony on the issue of whether he received the subject notice. Nathoo is beyond the subpoena power of this court, 42 P.S. 5905; but, he is an employee of a Tailor family business and he works in the same location in Delaware that PVT Enterprises Partnership is located. Availability is not determined merely from a witness's physical presence or amenability to subpoena but also depends on the witness's relationship to the party and the nature of the expected testimony. Commonwealth v. Dorman, 377 Pa. Super. 419 (1988). Furthermore, pursuant to the Judicial Code at 42 Pa.C.S. Section 5325, the deposition testimony of Nathoo could have been obtained in Delaware and then, pursuant to Pa. Rule of Civil Procedure 4020(a)(3)(b) (d) or (e), admitted into evidence at the trial in this case. Under these circumstances we will apply the missing witness rule. There is an inference that had Jay Nathoo testified his testimony would have been unfavorable to PVT Enterprises Partnership on the issue of whether Amar Tailor received the notice to PV'I' Enterprises Partnership of the date of the tax sale on September 28, 1998. In reference to the testimony of Jacob Heisey, which was that in a conversation with Tailor after the tax sale that Tailor said he had received the notice of the sale scheduled for September 28, 1998, but that he had an illness in his family, Tailor -10- 98-5973 CIVIL TERM testified that "1 don't recall telling him [Heisey] I received the August presale notice." Weighing the credibility of all of the witnesses, and pursuant to Sabbeth v. Tax Claim Bureau of Fulton County, supra, we find that the taxpayer, PVT Enterprises Partnership through its managing partner Amar Tailor had implied actual notice of the tax sale on September 28, 1998. Additionally, we find that the circumstances under which Amar Tailor asserts that he was without actual notice of the date for the tax sale are nothing short of incredible. We find that the taxpayer had actual notice of the date of the sale because we find that Tailor received that notice, as he told Jacob Heisey he did, but that he did not act on it in the press of the difficulties that he says were occurring at the time in his family businesses. For the foregoing reasons, the following order is entered. AND NOW, this of PVT Enterprises Partnership to the tax sale of 24 Hollar Avenue, Shippensburg, cumber,and Count, Edgar B. Bay ORDER OF COURT day of August, 1999, the objections and exceptions -11- 98-5973 CIVIL TERM David A. Greene, Esquire For PVT Enterprises Partnership Stephen D. Tiley, Esquire For Tax Claim Bureau of Cumberland County Sally J. Winder, Esquire For Elam Reiff and Mary Reiff :saa -12-