N.G. Jenkins v. Fayette County TCB v. S.D. Bush
176 A.3d 1038
| Pa. Commw. Ct. | 2018Background
- Nancy Jenkins owned rental property in Fayette County; 2014 real estate taxes went unpaid and the county Tax Claim Bureau listed the property for an upset tax sale.
- Upset sale occurred September 19, 2016; Scott D. Bush purchased the property.
- Jenkins filed a petition (Nov. 17, 2016) to set aside the sale, alleging statutory notice and cure violations; Bush intervened.
- Jenkins testified she had an oral payment arrangement and attempted to tender payment (including on Sept. 16, 2016) but was refused; the Bureau had posted notice, sent mailed notices (returned unclaimed), and published notice.
- Trial court voided the sale (Dec. 21, 2016); purchaser appealed but filed his Pa.R.A.P. 1925(b) statement four days late.
- Commonwealth Court affirmed: purchaser’s issues were waived for late Rule 1925(b) filing; alternatively, the Bureau violated the Tax Sale Law by refusing Jenkins the opportunity to cure and by not determining whether her payment met the 25% threshold to permit an installment agreement.
Issues
| Issue | Plaintiff's Argument (Jenkins) | Defendant's Argument (Bush/Tax Claim Bureau) | Held |
|---|---|---|---|
| Whether appellant waived appellate issues by untimely filing Pa.R.A.P. 1925(b) statement | Bush’s late filing should not waive issues because trial court issued a Rule 1925(a) opinion and/or good cause existed (waiting for transcript) | Rule 1925(b) deadlines are mandatory; failure to timely file waives all issues absent court-ordered enlargement | Waived: late filing (4 days) waived issues; failure to request enlargement or show good cause was fatal |
| Whether the upset tax sale must be voided for statutory due-process/notice or cure violations | Jenkins: Bureau refused payment and failed to offer installment option despite her attempt to cure, violating Tax Sale Law and due process | Bureau: complied with Section 602 notice requirements and sale was proper | On the merits (alternative holding): sale properly voided because Bureau refused Jenkins an opportunity to cure and failed to determine if her payment met 25% threshold required to offer installment agreement |
Key Cases Cited
- Jones v. Flowers, 547 U.S. 220 (2006) (due process requires adequate notice before a government may take property for unpaid taxes)
- Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005) (failure to timely file Rule 1925(b) statement results in waiver of appellate issues)
- In re Clinton County Tax Claims Bureau Consolidated Return for Sale of September 24, 2012, 109 A.3d 331 (Pa. Cmwlth. 2015) (Rule 1925(b) noncompliance causes waiver)
- Sanders v. Westmoreland County Tax Claim Bureau, 92 A.3d 97 (Pa. Cmwlth. 2014) (taxpayer has right to cure unpaid taxes prior to upset sale)
- Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247 (Pa. Cmwlth. 2003) (tax sale void if bureau fails to comply with statutory requirements)
- Moore v. Keller, 98 A.3d 1 (Pa. Cmwlth. 2014) (where owner paid at least 25% of taxes due, authority must inform owner of option for installment agreement)