Dickson City Auto Realty, LP v. TCB of Lackawanna County ~ Appeal of: Coben Properties, LLC
326 C.D. 2016
| Pa. Commw. Ct. | Jan 12, 2017Background
- Tax Upset Sale held Sept. 28, 2015; Dickson City Auto Realty, LP (Taxpayer) owned the property; Coben Properties, LLC (Purchaser) bought it at the sale.
- Taxpayer filed a Petition to Set Aside Tax Sale alleging the required posted notice was improperly posted; the Tax Claim Bureau (Bureau) admitted the posting was improper in its Answer.
- At the evidentiary hearing the Bureau’s counsel confirmed the posting was improper and did not participate further; Purchaser introduced only the Notice of Public Sale indicating posting on "Pole 9 ½."
- Taxpayer presented two unchallenged witnesses: a constable who admitted she posted the notice on the wrong pole/parcel and an attorney who inspected the property after the sale and found no notice posted.
- The trial court found Purchaser, standing in the Bureau’s shoes, failed to show strict compliance with the Tax Sale Law’s posting requirement and set aside the sale; Purchaser appealed.
Issues
| Issue | Plaintiff's Argument (Taxpayer) | Defendant's Argument (Purchaser) | Held |
|---|---|---|---|
| Whether the statutory posting requirement (72 P.S. § 5860.602(e)(3)) was met such that the tax sale is valid | Posting was defective; Taxpayer presented testimony that no proper notice was posted, rebutting the presumption of regularity | Notice of Public Sale introduced is uncontroverted and creates a presumption of validity; Taxpayer’s testimony related to a different notice and is irrelevant | Taxpayer rebutted the presumption; Bureau admitted improper posting; Purchaser (standing in Bureau’s shoes) failed to prove strict compliance; sale set aside |
Key Cases Cited
- Cruder v. Westmoreland Cnty. Tax Claim Bureau, 861 A.2d 411 (Pa. Cmwlth. 2004) (posting must be reasonable and likely to inform taxpayer/public)
- Rice v. Compro Distrib., Inc., 901 A.2d 570 (Pa. Cmwlth. 2006) (notice provisions ensure due process; trial court is factfinder)
- In re Upset Sale Tax Claim Bureau of McKean Cnty. (Miller), 965 A.2d 1244 (Pa. Cmwlth. 2009) (defective notice voids tax sale; posting must be conspicuous)
- Barylak v. Montgomery Cnty. Tax Claim Bureau, 74 A.3d 414 (Pa. Cmwlth. 2013) (owner’s averment of defective notice rebuts presumption and shifts burden to bureau)
- Dolphin Serv. Corp. v. Montgomery Cnty. Tax Claim Bureau, 557 A.2d 38 (Pa. Cmwlth. 1989) (purchaser stands in bureau’s shoes to prove compliance)
- In re Upset Price Tax Sale of Sept. 10, 1990 (Sortino), 606 A.2d 1255 (Pa. Cmwlth. 1992) (posting must be conspicuous and likely to ensure notice)
- In re Tax Sale of Real Property Situate in Paint Township, Somerset County, 865 A.2d 1009 (Pa. Cmwlth. 2005) (where neither bureau nor purchaser refute exceptions, sale must be set aside)