In Re: D.M. Lay v. County of Erie TCB v. D. Bolla, as of the Estate of L.C. Bolla
652 & 653 C.D. 2021
Pa. Commw. Ct.Mar 2, 2022Background
- Lay owned a Lake Erie weekend property that became delinquent for 2017–2018 taxes; she later moved into the property but did not update the county assessment address.
- Lay paid $5,000 toward the balance on August 29, 2019—short of the 25% needed to enter an installment stay—so the Erie County Tax Claim Bureau scheduled the property for the September 30, 2019 upset tax sale.
- The Bureau mailed, published, and posted notice and made one unsuccessful attempt at personal service at the property; Lay also had several instances of actual notice (mail forwarded to her PO box, posting, and office contact).
- The Bureau sold the property at the upset sale; Lay filed a Petition to Set Aside Tax Sale on October 25, 2019.
- The trial court found Section 602 (mail/publication/posting) requirements satisfied and that Lay had actual notice, but also found Lay was an "owner-occupant," that no effective personal service occurred, and that the property was not included in a court waiver of personal service—therefore the sale was invalid.
- The Commonwealth Court affirmed: personal service required for owner-occupants under Section 601(a)(3) was not satisfied and could not be cured post-sale or by actual notice or Lay's delinquent status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lay qualified as an "owner-occupant" under the RETSL | Lay lived at the property and received annual tax bill mailed to an owner at the property | Bureau disputed the status or challenged the court's finding | Court affirmed trial court: Lay met the statutory four elements and was an owner-occupant |
| Whether Section 602 notice (mail, publication, posting) or actual notice cured defects | Lay contested receipt but conceded some actual notice | Bureau argued it complied with Section 602 and Lay had actual notice, which cures defects under Section 602 | Court held the Bureau satisfied Section 602 and Lay had actual notice, but actual notice does not satisfy Section 601(a)(3) personal-service requirement |
| Whether personal service under Section 601(a)(3) was provided or waived | Lay argued she was never personally served as an owner-occupant | Bureau argued there were attempts and that a waiver/order covered properties sold (or court could waive post-sale) | Court held only one unsuccessful attempt occurred; the property was not listed in the waiver petition’s Exhibit A, so no waiver was obtained; post-sale waiver request was unauthorized |
| Whether Lay’s serial delinquency or actual notice bars setting aside the sale | Lay sought relief despite delinquency, relying on notice defects | Bureau/Bolla argued Lay’s intentional delinquency and actual knowledge should preclude relief | Court held neither serial delinquency nor actual notice cures the statutory personal-service requirement; sale set aside per precedent |
Key Cases Cited
- Appeal of Neff, 132 A.3d 637 (Pa. Cmwlth. 2016) (distinguishes Section 602 notice from Section 601(a)(3) personal service and explains owner-occupant protections)
- McKelvey v. Westmoreland Cnty. Tax Claim Bureau, 983 A.2d 1271 (Pa. Cmwlth. 2009) (actual notice does not cure lack of required personal service for owner-occupants)
- In Re Petition to Set Aside Upset Tax Sale, 218 A.3d 995 (Pa. Cmwlth. 2019) (focuses on the "owner residing at" language and burden on bureau to prove owner-occupant status)
- Commonwealth v. Giulian, 141 A.3d 1262 (Pa. 2016) (statutory plain-language analysis governs legislative intent)
- Krawec v. Carbon Cnty. Tax Claim Bureau, 842 A.2d 520 (Pa. Cmwlth. 2004) (if any Section 602 notice method is defective the sale is void)
- Husak v. Fayette Cnty. Tax Claim Bureau, 61 A.3d 302 (Pa. Cmwlth. 2013) (tax sales are remedial mechanisms to collect taxes, not to strip property owners of homes)