Barylak v. Montgomery County Tax Claim Bureau
2013 Pa. Commw. LEXIS 354
Pa. Commw. Ct.2013Background
- Montgomery County Tax Claim Bureau sold 610 Cedar Road (Barylaks' property) at an upset tax sale for 2008–2009 delinquencies; successful bidders paid $96,000.
- Barylaks filed a petition contesting the sale, alleging the Bureau failed to post the statutorily required notice on the property under Section 602 of the Real Estate Tax Sale Law.
- Bureau introduced a deputy sheriff’s affidavit of posting (dated July 30, 2010) and an affidavit of personal service to Michael Barylak as proof of posting and service.
- Michael and Maria Barylak testified they did not see the posted notice and that there was no physical evidence (tack/tape marks) on the original notice; Michael admitted he could not definitively know whether the deputy had posted a notice.
- Trial court found the Barylaks’ testimony not credible, concluded Bureau satisfied posting requirements, and dismissed the petition; Barylaks appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deputy sheriff's affidavit alone proves statutory posting | Barylaks: their testimony that notice was not seen and no physical evidence rebuts posting | Bureau: affidavit of posting is competent evidence of proper posting | Court: affidavit of posting is substantive competent evidence; Barylaks failed to overcome it |
| Whether property owners rebut presumption of regularity | Barylaks: testimony that notice wasn't posted suffices to rebut presumption | Bureau: once owners allege noncompliance, burden shifts to Bureau to prove strict compliance via affidavit | Court: burden shifted to Bureau and Bureau met it; owners’ testimony found not credible |
| Credibility determination standard on appeal | Barylaks: trial court erred in discrediting their testimony | Bureau: credibility is for trial court to decide | Court: appellate court will not disturb trial court’s credibility findings absent abuse of discretion |
| Requirement of physical evidence of posting | Barylaks: absence of tack marks undermines affidavit | Bureau: physical evidence not required; affidavit suffices | Court: physical evidence not required per precedent; affidavit alone is adequate |
Key Cases Cited
- Miller v. Clinton County Tax Claim Bureau, 909 A.2d 461 (Pa. Cmwlth. 2006) (tax sales presumed valid)
- In re Upset Sale Tax Claim Bureau McKean County on September 10, 2007, 965 A.2d 1244 (Pa. Cmwlth. 2009) (burden shifts to bureau/purchaser after owner alleges defective notice)
- In re Sale of Real Estate by Lackawanna County Tax Claim Bureau, 986 A.2d 213 (Pa. Cmwlth. 2009) (affidavit of posting is competent evidence of proper posting)
- Picknick v. Washington County Tax Claim Bureau, 936 A.2d 1209 (Pa. Cmwlth. 2007) (affidavit of posting establishes posting for tax-sale notice purposes)
- Thomas v. Montgomery County Tax Claim Bureau, 553 A.2d 1044 (Pa. Cmwlth. 1989) (no requirement that physical evidence accompany affidavit of posting)