Zion Bullitt Avenue LP v. Westmoreland County TCB v. Moween Trust Re: Tax Map No. 29-01-10-0-156
1977 C.D. 2015
| Pa. Commw. Ct. | Dec 21, 2016Background
- Zion Bullitt Avenue LP owned a Penn Borough property and failed to pay 2010–2012 taxes; tax bills addressed to Madison Ave (NY) were returned undeliverable.
- WCTCB sent certified Notice of Return and Claim and Notice of Public Sale to Madison Ave; both were returned as undeliverable.
- WCTCB reposted the Property, published notice, and held an upset tax sale on Sept. 10, 2012; Moween Trust purchased the Property.
- Zion filed objections claiming WCTCB failed to meet RESTL/Tax Sale Law notice duties, including failure to undertake reasonable efforts to locate a correct address after return mail.
- Trial court found Zion had actual notice based primarily on testimony of Frank Trigona (who relayed conversations with Sheriff and Zion personnel) and corroborating witnesses, and thus waived strict statutory notice requirements.
- Commonwealth Court (majority) affirmed, holding trial court credibility findings supported express actual notice; Judge Leavitt dissented, arguing strict statutory notice must be followed and a limited partner’s knowledge is not notice to the partnership.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WCTCB’s failure to comply strictly with Tax Sale Law notice provisions requires setting aside the sale | WCTCB’s mailings were returned undeliverable; it made no reasonable effort to locate the owner as required, so sale must be set aside | Actual notice to Zion (via phone messages relayed by Trigona) waived formal statutory notice; posting and publication were proper | Majority: No error — actual (express) notice found; statutory defects waived; sale affirmed |
| Whether testimony of Trigona and corroborating evidence sufficed to establish actual notice | Trigona’s testimony is unreliable and self-serving; Zion had no written notice | Trigona’s testimony corroborated by Sheriff, other witnesses, and phone records showing communications with Mark Zion | Majority: Trial court credibility findings binding; testimony and circumstantial evidence support express actual notice |
| Whether actual notice to a limited partner (Mark Zion) is imputed to the limited partnership | Zion: limited partner’s knowledge is not notice to the partnership; partnership is separate legal entity | WCTCB: managing partner/active participant received and acted on notice, so partnership had actual notice | Majority: Attributed actual notice to Zion partnership and affirmed sale; Dissent: disagrees — limited partner’s knowledge insufficient |
| Whether WCTCB satisfied "reasonable efforts" obligation after return of mailed notices | Zion: WCTCB made no reasonable efforts (did not search records for alternate address) and thus violated §602(e)/§607a | WCTCB: efforts not required where owner had actual notice through other means | Majority: Actual notice excused statutory search obligations; sale stands |
Key Cases Cited
- Sabbeth v. Tax Claim Bureau of Fulton County, 714 A.2d 514 (Pa. Cmwlth.) (actual notice can include implied and express forms; owner’s receipt of notice may waive technical defects)
- Citimortgage, Inc. v. KDR Investments, LLP, 954 A.2d 755 (Pa. Cmwlth.) (when actual notice exists, formal statutory notice requirements may be waived)
- Cruder v. Westmoreland County Tax Claim Bureau, 861 A.2d 411 (Pa. Cmwlth.) (circumstantial evidence of actual notice supported setting aside strict notice requirement)
- Dwyer v. Luzerne County Tax Claim Bureau, 110 A.3d 223 (Pa. Cmwlth.) (reiterating requirement that tax claim bureaus must make reasonable efforts to locate owners when mailed notices are returned)