Anthony FAMAGELTTO and Linda Famageltto, Appellants, v. COUNTY OF ERIE TAX CLAIM BUREAU and Perry Properties, Inc.
No. unknown
Commonwealth Court of Pennsylvania.
Decided Jan. 21, 2016.
133 A.3d 337
Submitted on Briefs Sept. 16, 2015.
George Joseph, Erie, for appellee County of Erie Tax Claim Bureau.
David E. Holland, Erie, for appellee Perry Properties, Inc.
BEFORE: DAN PELLEGRINI, President Judge1, and BERNARD L. McGINLEY, Judge, and BONNIE BRIGANCE LEADBETTER, Judge, and RENÉE COHN JUBELIRER, Judge, and MARY HANNAH LEAVITT, Judge2, and P. KEVIN BROBSON, Judge, and ANNE E. COVEY, Judge.
OPINION BY Judge RENÉE COHN JUBELIRER.
Anthony Famageltto and Linda Famageltto, husband and wife, (together, Appellants), appeal from a June 23, 2014 Order of the Court of Common Pleas of Erie County (trial court) denying Appellants’ Petition to Set Aside Tax Sale (Petition to Set Aside) of their home at 12769 Route 89, Wattsburg Township, Erie County (Property). On appeal, Appellants argue that the trial court erred when it denied their Petition to Set Aside because the County of Erie Tax Claim Bureau (Bureau) did not comply with multiple provi-sions
I. NOTICE PRIOR TO AN UPSET TAX SALE
We are once again called upon to address a property owner‘s right to notice prior to a sale of property due to unpaid property taxes. “[T]he forfeiture of a person‘s property rights for failure to pay taxes is a momentous event under the Pennsylvania and United States Constitutions.” Stanford-Gale v. Tax Claim Bureau of Susquehanna County, 816 A.2d 1214, 1216 (Pa.Cmwlth.2003). Accordingly, the General Assembly established detailed notice provisions within the Law in order to guard against the deprivation of property without due process. Donofrio v. Northampton County Tax Claim Bureau, 811 A.2d 1120, 1122 (Pa.Cmwlth.2002). Because tax claim bureaus have a constitutional duty to provide notice prior to a tax sale, tax claim bureaus bear the burden of showing strict compliance with the notice provisions of the Law and our inquiry focuses “not on the alleged neglect of the owner, which is often present in some degree, but on whether the activities of the Bureau comply with the requirements of the [Law].” Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1251 (Pa.Cmwlth.2003).
The notice requirements of the Law relevant to this case are as follows.
(e) In addition to such publications, similar notice of the sale shall also be given by the bureau as follows:
(1) At least thirty (30) days before the date of the sale, by United States certified mail, restricted delivery, return receipt requested, postage prepaid, to each owner as defined by this act.
(2) If return receipt is not received from each owner pursuant to the provisions of clause (1), then, at least ten (10) days before the date of the sale, similar notice of the sale shall be given to each owner who failed to acknowledge the first notice by United States first class mail, proof of mailing, at his last known post office address by virtue of the knowledge and information possessed by the bureau, by the tax collector for the taxing district making the return and by the county office responsible for assessments and revisions of taxes. It shall be the duty of the bureau to deter-mine
the last post office address known to said collector and county assessment office.
When doubt is raised concerning the receipt of a mailed notice,
In addition to the notice requirements of
No owner-occupied property may be sold unless the bureau has given the owner occupant written notice of such sale at least ten (10) days prior to the date of actual sale by personal service by the sheriff or his deputy or person deputized by the sheriff for this purpose unless the county commissioners, by resolution, appoint a person or persons to make all personal services required by this clause. The sheriff or his deputy shall make a return of service to the bureau, or the persons appointed by the county commissioners in lieu of the sheriff or his deputy shall file with the bureau written proof of service, setting forth the name of the person served, the date and time and place of service, and attach a copy of the notice which was served. If such personal notice cannot be served within twenty-five (25) days of the request by the bureau to make such personal service, the bureau may petition the court of common pleas to waive the requirement of personal notice for good cause shown. Personal service of notice on one of the owners shall be deemed personal service on all owners.
With the foregoing principles in mind, we turn to the facts in the instant matter.
II. BACKGROUND
The trial court held hearings on the matter on April 29, 2014 and June 18, 2014, which adduced the following facts. Appellants received the ten acre Property as a wedding gift from Mrs. Famageltto‘s father more than thirty years ago. From time to time, Appellants encountered difficulties staying current on their property tax bills and entered into two stay agreements with the Bureau as authorized by
On July 17, 2013 the Bureau assigned Crystal Ellsworth (Server) to personally serve Appellants with notice of the upset tax sale and to physically post the Property. Server testified that, on August 22, 2013, she physically posted notice on the Property next to Appellants’ mailbox, which was approximately three feet from Route 89.8 Server then attempted to personally serve Appellants by driving to the front of the house and knocking on the door underneath the front porch. Server stated that she waited for approximately one minute, took pictures of the Property, and then left.
Steven Letzelter, Director of the Bureau (Director), testified that because the notice of the upset tax sale through certified mail was returned unclaimed, the Bureau searched for alternative addresses for Appellants in, inter alia, its internal records, the telephone directory, the Tax Assessment Office records, the Office of the Prothonotary, and the local tax collector records.9 The Bureau discovered an additional address for Appellants in the telephone directory, 12801 Rt. 89, Wattsburg, Pa., which Appellants testified was the address for Mrs. Famageltto‘s brother‘s home. Then, on September 16, 2013, the Bureau sent three notices of the September 30, 2013 upset tax sale by first class mail: one to Appellants at the Property, and separate letters to each Appellant at the alternative address identified in the telephone directory.
On September 10, 2013, the Bureau filed its Waiver Petition with the trial court seeking to have the personal service of notice requirement of
The Server designee of Erie County has attempted to make personal service on
the owner-occupiers of property listed.... For various reasons, including that the owner-occupiers have moved to parts unknown, the house being vacant, the owner-occupants refusing to answer the door, etc., personal service was not able to be made.... [T]he [S]erver designee made a good faith attempt to make personal service on the owner-occupiers. [ ]All other requirements of notice, including publication in the newspaper and posting a sign on the properties have been accomplished.
(Waiver Petition ¶¶ 4-6, R.R. at 221a.) The exhibit attached to the Waiver Petition lists the index number and the record owner(s)’ name for each of the 1,700 properties for which the Bureau sought waiver, with a notation indicating there was “No Response,” and a signed Verification by the Supervisor of the Bureau of Revenue and Tax Claim. (Waiver Petition, R.R. at 224a-59a.) The Waiver Petition was granted by Judge Cunningham of the trial court on the same day it was filed, September 10, 2013. The Bureau sold the Property on September 30, 2013. The successful bidder was Perry Properties, Inc. (Purchaser).
Appellants testified at the June 18, 2014 hearing. Mrs. Famageltto testified as follows.10 She is the person in the household that normally pays property taxes, which she pays periodically when they are due. Mrs. Famageltto was aware that she and her husband were behind on their taxes and that failure to pay the taxes could result in a tax sale. However, Mrs. Famageltto did not know until the date of the tax sale that the Property was to be sold. Appellants do occasionally receive certified mail at the Property, but Mrs. Famageltto did not recall for sure whether she received such a mailing in July 2013. With regard to the posting on the Property, Mrs. Famageltto testified that she did not see a posting near their mailbox in August 2013, but acknowledged spotting a stake lying on the ground near their mailbox. At some point after the September 30, 2013 upset tax sale, she found part of the posted notice in some high grass about twenty feet from their driveway along Route 89. Mrs. Famageltto surmised that a truck may have knocked down the stake and the notice blew down the road before getting caught in the tall grass.11
Mr. Famageltto testified at the June 18, 2014 hearing that he did not recall receiving anything in the mail in August 2013 regarding unpaid property taxes.12 Mr. Famageltto stated that he knew there was something at the post office waiting for the couple regarding taxes at some point earlier in the summer of 2013 and asked Mrs. Famageltto to take care of it. He testified
There is some discrepancy in the testimonies of Appellants with regard to when they actually learned of the sale. Mr. Famageltto testified that he received the notice dated September 11, 2013 on September 30, 2013, the morning of the tax sale, when he retrieved some mail from his mailbox. Mr. Famageltto stated that he immediately called Mrs. Famageltto to ask her to discover what was happening. According to Mr. Famageltto, Mrs. Famageltto called him back within an hour and a half of his call to inform him that the Bureau told her that the Property was already sold at a tax sale. (Hr‘g Tr. at 56-58, June 18, 2014, R.R. at 404a-06a.) However, Mrs. Famageltto testified that Mr. Famageltto called her in the afternoon of September 30, 2013 to inquire about the notice he picked up in the mail earlier that morning and that she did not go to the courthouse until October 1, 2013 where she learned that the Property was sold. (Hr‘g Tr. at 35, R.R. at 383a.) Mrs. Famageltto testified that because Mr. Famageltto did not call her until late in the day on September 30, 2013, she did not have time to go to the courthouse to inquire about the notice on that day. (Hr‘g Tr. at 36, R.R. at 384a.) Both Appellants testified that, if they knew of the tax sale earlier, they would have either entered into a new payment agreement or borrowed money from their children to pay the tax delinquency.
Upon review of the facts, the trial court concluded:
the agency strictly complied with the tax sale law. They crossed every “t” and dotted every “i” with respect to the service requirements of the statute. The [Appellants‘] testimony does not credibly refute this conclusion. As to [Appellants‘] claim that the petition presented to Judge Cunningham requesting a waiver of personal service was deficient, this Court disagrees. It is not this Court‘s role to second guess or overrule Judge Cunningham‘s ruling as it is binding on this Court under the coordinate jurisdiction doctrine Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1331-1333 (1995).
Sadly, the [Appellants] have lost their family home. However, any fault lies not with the tax claim bureau, but with their failure to do what was necessary to avoid these unfortunate circumstances. The direct and circumstantial evidence established that they either knew of the pending sale or intentionally avoided notice of it. Therefore, the [Appellants] are not entitled to relief.
(Trial Ct. Op. at 5.) This appeal followed.13
III. APPELLANTS’ APPEAL
On appeal, Appellants argue that the trial court erred in denying their Petition to Set Aside because the Bureau did not comply with various notice requirements of the Law and due process. Specifically, Appellants contend that the trial court erred when it denied Appellants’ Petition to Set Aside because the Bureau did not show that it strictly complied with the requirement of
A. Compliance with Section 607.1 of the Law
Appellants first argue that the trial court erred and that the tax sale should be set aside because the Bureau failed to conduct reasonable efforts to discover Appellants’ whereabouts as required by
We have said that “[w]here notice is obviously not effectively reaching the owners of record, the taxing bureau must go beyond the mere ceremonial act of notice by certified mail.” Jefferson Township, 828 A.2d at 479. If the certified mailed is either returned unsigned, not returned, or returned under circumstances raising significant doubt as to the actual receipt of the notice,
but not necessarily be restricted to, a search of current telephone directories for the county and of the dockets and indices of the county tax assessment offices, recorder of deeds office and prothonotary‘s office, as well as contacts made to any apparent alternate address or telephone number which may have been written on or in the file pertinent to such property. When such reasonable efforts have been exhausted, regardless of whether or not the notification efforts have been successful, a notation shall be placed in the property file describing the efforts made and the results thereof, and the property may be rescheduled for sale or the sale may be confirmed as provided in this act.
Contrary to Appellants’ assertions, we conclude that the Bureau undertook reasonable notification efforts to discover Appellants’ whereabouts as required by
Insofar as Appellants argue the timeliness of the first class mailing did not afford them sufficient time to pay their delinquent property taxes, the Bureau mailed the notice on September 11, 2013, more than 10 days before the date of the sale in accordance with
B. Compliance with Due Process
Appellants next contend that, in addition to satisfying the notice requirements of the Law, due process requires tax claim bureaus to provide property owners with actual notice of pending tax sales, if reasonably possible. Appellants argue that the trial court erred by blaming them for the lack of notice when due process could have been satisfied if the Bureau sent notice by mail earlier, called Appellants, or attempted to personally service notice upon them in the evening.
A fundamental requirement of due process is that notice be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Our Supreme Court has applied this principle to the tax sale context as requiring tax claim bureaus to undertake “reasonable effort[s]” “to provide actual notice” of the tax sale. Tracy v. County of Chester, Tax Claim Bureau, 507 Pa. 288, 489 A.2d 1334, 1338 (1985) (emphasis in original). Appellants are correct that “a taxing authority‘s strict compliance with the [notice requirements of the Law] does not necessarily satisfy the demands of due process.” Geier v. Tax Claim Bureau of Schuylkill County, 527 Pa. 41, 588 A.2d 480, 483 (1991). Due process requires that the “practicalities and peculiarities of the case” are considered and given their “due regard.” Mullane, 339 U.S. at 314.
The cases cited by Appellants where courts of this Commonwealth have held that strict compliance with the notice requirements of the Law is insufficient to satisfy the demands of due process involve
Appellants neither argue that the notices were sent to the incorrect owners of the Property, nor do they argue that the notices were sent to an incorrect address. It is undisputed that notice was sent to Appellants at their correct address and that Appellants are the record owners of the Property. The only justification for Appellants not receiving notice on time to prevent the tax sale is that Appellants failed to retrieve their mail or see the notice posted next to their mail box. Due process does not require tax claim bureaus to conduct extraordinary efforts to provide notice when a property owner‘s failure to retrieve his or her mail caused the lack of actual notice. By strictly complying with the notice requirements of the Law and satisfying its obligations under
C. Waiver of Personal Service of Notice
Finally, Appellants argue that the Waiver Petition did not satisfy the “good cause” requirement of
The Bureau and Purchaser respond by arguing that the trial court correctly waived the personal service of notice requirement of
The trial court here did not independently examine whether the Bureau showed good cause to waive the personal service of notice requirement under
The coordinate jurisdiction doctrine states that “judges of [equal] jurisdiction sitting in the same case should not overrule each others’ decisions.” Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1331 (1995). In Starr, our Supreme Court reasoned that the coordinate jurisdiction rule fits squarely under the larger, “law of the case” doctrine and merged the two doctrines “in an effort to standardize and streamline the law to which [Pennsylvania] courts must refer when considering prior rulings of courts of coordinate jurisdiction. ...” Id. at 1333. The law of the case doctrine “refers to a family of rules which embody the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of the matter.” Id. at 1331. The goal of the doctrine is: “(1) to protect the settled expectations of the parties; (2) to insure uniformity of decisions; (3) to maintain consistency during the course of a single case; (4) to effectuate the proper and streamlined administration of justice; and (5) to bring litigation to an end.” Id. Departure from the law of the case doctrine is allowed only in exceptional circumstances[,] such as where there has been an intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a manifest injustice if followed. Id. at 1332.
Under these circumstances, we do not believe the coordinate jurisdiction rule precluded the trial court from examining whether there was good cause to waive the personal service of notice requirement. Judge Cunningham was presented with the Waiver Petition on September 10,
However, this proceeding was necessarily one-sided because the property owners had not been found or become part of the process.
It was only later in the statutory tax sale process that Appellants could become involved. Pursuant to
Allowing review at this hearing effectuates the legislative intent of the personal service of notice requirement for owner-occupied properties and is consistent with the purpose of the coordinate jurisdiction
IV. CONCLUSION
For the foregoing reasons, we reverse the trial court‘s Order only insofar as it upholds the September 10, 2013 order of Judge Cunningham granting the Bureau‘s Waiver Petition and remand for a determination on whether the Bureau satisfied the requirements of
Judge LEAVITT concurs in the result only.
ORDER
NOW, January 21, 2016, the June 23, 2014 Order of the Court of Common Pleas of Erie County (trial court), entered in the above-captioned matter, is REVERSED to the extent that it upholds the September 10, 2013 order granting the County of Erie Tax Claim Bureau‘s (Bureau) Petition to Waive Personal Service, and this matter is REMANDED for a determination as to whether the Bureau satisfied the requirements of
Jurisdiction relinquished.
Notes
Id.Any owner or lien creditor of the owner may, at the option of the bureau, prior to the actual sale ... enter into an agreement, in writing, with the bureau to stay the sale of the property upon the payment of twenty-five per centum (25%) of the amount due on all tax claims and tax judgments filed or entered against such property and the interest and costs on the taxes returned to date, as provided by this act, and agreeing therein to pay the balance of said claims and judgments and the interest and costs thereon in not more than three (3) instalments all within one (1) year of the date of said agreement, the agreement to specify the dates on or before which each instalment shall be paid, and the amount of each instalment. So long as said agreement is being fully complied with by the taxpayer, the sale of the property covered by the agreement shall be stayed ... If a party to an instalment agreement defaults on the agreement, the bureau shall not enter into a new instalment agreement with that person within three (3) years of the default.
Id. The statutory appeal process ofThe bureau shall, at the expense of the county, within ten (10) days after confirmation nisi of the consolidated return, publish a general notice once in a newspaper of general circulation published in the county, and in the legal journal, if any, designated by rules of court for the publication of legal notices, stating (1) that the consolidated return of the bureau with respect to any such sale for taxes has been presented to the court, (2) giving the date of confirmation nisi and (3) that objections or exceptions thereto may be filed by any owner or lien creditor within thirty (30) days after the court has made a confirmation nisi of the consolidated return or that the return will be confirmed absolutely.