In Re: Petition to Set Aside Upset Tax Sale Appeal of: Craig Hansford
No. 1426 C.D. 2018
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
October 1, 2019
HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ROBERT SIMPSON, Senior Judge
Argued: September 9, 2019
OPINION BY JUDGE COVEY
FILED:
Craig Hansford (Hansford) appeals from the Lehigh County Common Pleas Court’s (trial court) September 17, 2018 order denying Hansford’s Amended Petition to Set Aside Upset Tax Sale (Petition).1 Essentially, the issue before this Court is whether Hansford was an owner occupant of 41 East Wyoming Street, Allentown, Pennsylvania 18103 (Property) at the time of the upset tax sale.2
Hansford first argues that the Bureau failed to present evidence establishing its compliance with Sections 601(a)(3) and 602 of the Real Estate Tax Sale Law (RETSL).7 The Bureau rejoins that Section 602 of the RETSL is not an issue before this Court because it was not raised before the trial court; and Section 601(a)(3) of the RETSL does not apply because Hansford was not an owner occupant at the time of the sale.8
Initially, with respect to the issues before this Court, the following transpired before the trial court:
THE COURT: . . . .
We have two issues as defined by [Hansford’s a]ttorney [Glennis] Clark[,] and Attorney[] [Diane] Dinstel [representing Northeast Revenue Service, LLC, the agent for the Bureau] and [Attorney Kathryn] Williams [representing Park] agree are [sic] fair issues to deal with in a case like this.
1. Whether [] Hansford is an owner occupant as defined under Section 102 of the [RETSL9] as to the [P]roperty at issue; correct? MS. WILLIAMS: Yes.
MR. CLARK: Yes.
MS. DINSTEL: Yes, Your Honor.
THE COURT: 2. Whether the [RETSL] requires personal service on an owner who is not an owner occupant as defined by said statute; correct?
MS. DINSTEL: Yes, Your Honor.
THE COURT: That makes sense. Yes?
MR. CLARK: Yes.
THE COURT: Yes?
MS. DINSTEL: Yes, Your Honor.
THE COURT: Okay.
MS. WILLIAMS: Yes.
THE COURT: So the first is a factual question and the second is a legal question.
MR. CLARK: Yes.
THE COURT: Okay. And so we’ve got the issues now.
R.R. at 17a-18a.
The law is well-established that
[w]hile a party has a duty to preserve an issue at every stage of a proceeding, he or she also must comply with the general rule to raise an issue at the earliest opportunity. Renna v. Dep’t of Transp., Bureau of Driver Licensing, 762 A.2d 785, 788 (Pa. Cmwlth. 2000) (holding failure to raise issue during trial court’s hearing constituted waiver).
Campbell v. Dep’t of Transp., Bureau of Driver Licensing, 86 A.3d 344, 349 (Pa. Cmwlth. 2014) (emphasis added)[.]
City of Phila. v. Rivera, 171 A.3d 1, 6 (Pa. Cmwlth. 2017) (emphasis omitted). Further, “[Pennsylvania Rule of Appellate Procedure] 302(a) provides: ‘Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.’” In re RHA Pa. Nursing Homes Health & Rehab. Residence, 747 A.2d 1257, 1260 (Pa. Cmwlth. 2000). Accordingly, because Hansford did not raise the issue of whether the Bureau complied with Section 602 of the RETSL before the trial court, “this issue is waived.” RHA Pa. Nursing Homes, 747 A.2d at 1260.
Section 601(a)(3) of the RETSL provides:
No owner-occupied property may be sold unless the [B]ureau 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. . . . If such personal notice cannot be served within twenty-five (25) days of the request by the [B]ureau to make such personal service, the [B]ureau 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.
Hansford contends that he resides at the Property notwithstanding he is presently incarcerated, thus, he is an owner occupant.
According to the Bureau’s Statement of Account, the Property’s tax bill is mailed to: “1000 POSTAL RD UNIT 90242 Allentown PA 18109-4311[.]” R.R. at 53a. Based on this document alone, the Bureau asserts that because “the annual tax bill is [not] mailed to . . . the same address as that of the [P]roperty,”
Notwithstanding, this Court has explained:
Section 601(a)(3) [of the RETSL] demonstrates the General Assembly’s ‘heightened concern for owner occupants being divested of the very property in which they are residing.’ Matter of Tax Sales by Tax Claim Bureau of Dauphin C[ty.], 651 A.2d 1157, 1159 (Pa. Cmwlth. 1994). We have said that, ‘[b]y enacting [S]ection 601[(a)(3)] [of the RETSL], the [General Assembly] expressed a desire to provide a qualitatively different type of notice to an owner occupant and afford such owner with increased protection by way of additional notice.’ McKelvey v. Westmoreland C[ty.] Tax Claim Bureau, 983 A.2d 1271, 1274 (Pa. Cmwlth. 2009).
Famageltto v. Cty. of Erie Tax Claim Bureau, 133 A.3d 337, 346-47 (Pa. Cmwlth. 2016). Because the General Assembly’s reason for mandating personal service is concern over the divesting of the property wherein owner occupants reside, without the owner occupants first receiving notice, this Court cannot hold that Hansford is not an owner occupant based solely on the Bureau’s lack of knowledge.
The Bureau further argues:
[Hansford] at the time of the hearing did not provide any evidence to establish the address of record with the Assessor’s Office of Lehigh County [(Assessor’s Office)] for mailing purposes was not provided to the Assessor’s Office by [Hansford]. [Hansford] did not offer any evidence to suggest that any attempts were made to notify the Bureau, the tax collector of the Lehigh County Assessor’s Office that the mailing address for the tax bills was incorrect.10
Bureau Br. at 5.
However,
[i]n reviewing the validity of a tax sale, the court must focus ‘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 [statute].’ [In re Consol. Reports & Return by Tax Claims Bureau of Northumberland Cty. of Props., 132 A.3d 637, 644 (Pa. Cmwlth. 2016)] (quoting Smith [v. Tax Claim Bureau of Pike Cty.], 834 A.2d 1247, 1251 (Pa. Cmwlth. 2003)). It
is the conduct of the [Bureau] that is determinative of compliance with the statutory notice provisions.11
Clemmer v. Fayette Cty. Tax Claim Bureau, 176 A.3d 417, 422 (Pa. Cmwlth. 2017).
Interestingly, the Bureau asserts:
The record established that prior to the [s]ale, [Hansford] resided at the [Property] for nine or ten years. During this nine[-] or ten[-]year time period, the tax bills for the [Property] were mailed to 1000 Postal Road, Unit 9024-42, Allentown, PA 18109-4311, which as previously stated is not the physical address of the [Property]. The taxes for the [Property] were paid up until 2015, which means for seven or eight years, the tax bills were reaching the ‘Owner’ of the [Property] without any issues.
Bureau Br. at 5 (emphasis added). The Bureau’s assertion is not persuasive given that Hansford and his mother co-owned the Property until Hansford’s mother died in 2014 and the delinquency began in 2015. Rather, it shows that Hansford, the “Owner,” may not have received the tax bills, but that Hansford’s mother received and paid them. Hence, the delinquency began after she passed away.
In light of Famageltto, this Court concludes that the Bureau is misconstruing the definition of owner occupant by focusing on the “address . . . of the property,” rather than the requirement that the tax bill be mailed to “an owner residing at . . . the property.”
Moreover, taking the Bureau’s argument to its logical conclusion, if the records inadvertently listed the wrong address, and it was undisputed that an owner resided at the property being sold, the owner would not be entitled to personal service merely because of the Bureau’s incorrect records. That result is contrary to the General Assembly’s intent and the well-established law that the purpose of the RETSL is not penal, but to obtain payment. The “‘tax sale laws were enacted with the primary purpose of insuring the collection of taxes, and not to strip away citizens’ property rights.’ Tracy v. [Cty.] of Chester, Tax Claim Bureau, . . . 489 A.2d 1334 ([Pa.] 1985); Stanford-Gale v. Tax Claim Bureau of Susquehanna [Cty.], 816 A.2d 1214, 1216 (Pa. Cmwlth. [2003]) . . . .” Rivera v. Carbon Cty. Tax Claim Bureau, 857 A.2d 208, 214 (Pa. Cmwlth. 2004). The RETSL simply gives taxing districts the opportunity to collect delinquent taxes. Id. Because the General Assembly believed it to be of utmost importance to give owner occupants greater protection than non owner occupants, it included Section 601(a)(3) of the RETSL to protect them from losing the properties wherein they reside. For the aforementioned reasons, this Court rejects the Bureau’s argument.
Following the above-stated rationale, under the RETSL, if a property owner was hospitalized during the relevant time period, his home would not be considered owner-occupied if an upset tax sale occurred during his hospitalization because he would not be “physically present at the [property],” Bureau Br. at 7, but rather he would be “an inhabitant in [the hospital] . . . during the relevant time period . . . not at the property.” Trial Ct. Amended Op. at 3; see also Black’s Law Dictionary 1502 (10th ed. 2014). In ascertaining the General Assembly’s intent in enacting a statute, it is presumed “[t]hat the General Assembly does not intend a result that is absurd[.]”
The fact that an owner may be temporarily physically incapable of inhabiting his property does not mean he is no longer an owner occupant. This statement is especially true here, where the length of Hansford’s absence was approximately three months before the required personal service under Section
601(a)(3) of the RETSL.13 Consequently, this Court concludes that, although Hansford was physically
Moreover, under circumstances where an owner who resides at the property may not be physically present at his property during the relevant time period, if the owner cannot be personally served, “the [B]ureau may petition the court of common pleas to waive the requirement of personal notice for good cause shown,” otherwise, the Bureau is mandated to personally serve the owner occupant.
As this Court expounded:
The plain language of [S]ection 601(a)(3) [of the RETSL] unequivocally commands that ‘no owner[-]occupied property may be sold’ unless the owner occupant has received personal service of notice. The provision sets forth only one exception, an order waiving the personal service requirement for good cause shown. . . .
In this case, [Hansford] was not personally served with written notice of the tax sale, and the Bureau did not obtain a waiver from this statutory requirement. Under these circumstances, the trial court [should have] concluded that the tax sale was invalid pursuant to [S]ection 601[(a)(3)] of the [RETSL].
For all of the above reasons, the trial court’s order is reversed.
ANNE E. COVEY, Judge
In Re: Petition to Set Aside Upset Tax Sale Appeal of: Craig Hansford
No. 1426 C.D. 2018
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
O R D E R
AND NOW, this 1st day of October, 2019, the Lehigh County Common Pleas Court’s September 17, 2018 order is reversed.
ANNE E. COVEY, Judge