37 Pa. Commw. 449 | Pa. Commw. Ct. | 1978
Opinion by
The Appellant, Rosetta Shroyer, appeals here from an order of the Court of Common Pleas of Fayette County which upheld a tax sale of property owned by herself and her husband to the Appellees, Charles and Delores Teslovich.- She attacks the validity of the sale because of an alleged insufficiency of notice under the Real Estate Tax Sale Law
In addition to such publications, similar notice of the sale shall also be given by the bureau, at least ten (10) days before the date of the sale, by United States certified mail, personal addressee only, return receipt requested, postage prepaid, to each owner as defined by this act. . . .
No sale shall be defeated and no title to property sold shall be invalidated because of proof that mail notice as herein required was not received by the owner, provided such notice was given as prescribed by this section. (Emphasis added.)
72 P.S. §5860.602.
The Act defines the owner as the “person in whose name the property is last registered,” 72 P.S. §5860.102, and it does not, therefore, address the notice requirements as to tenants by the entireties. The Act clearly indicates, however, that if the mailing of a single notice complied with the statute, the notice requirements were met regardless of whether or not the wife, the Appellant here, received that notice. Indeed the risk of mail miscarriage is assumed by the delinquent taxpayer. Hess v. Westerwick, 366 Pa. 90, 76 A.2d 745 (1950). The narrow issue here therefore is whether or not the law in this case required the mailing of separate notices of the tax sale.
' This Court has previously held that tax notices of tax delinquency and tax sale must contain the names of each tenant by the entireties. Price-Jeffries Co., Inc. v. Tillman, 11 Pa. Commonwealth Ct. 153, 312 A.2d 494 (1973); C. Everett, Inc. v. Ayres, 22 Pa. Commonwealth Ct. 422, 349 A.2d 514 (1975). We have
*453 Notice to husband and wife living together at one address conforms to both the spirit and the letter of the law. (Emphasis in original.)
This Act was “not meant to punish taxpayers who omit, through oversight or error, to pay their taxes, but to protect local government against wilful, persistent, longstanding delinquencies.” Huhn v. Chester County, 16 Pa. Commonwealth Ct. 18, 22, 328 A.2d 906, 908 (1974). The record here indicates that the Appellant attempted to pay the delinquent taxes owed and actually received a refund because of an assumed overpayment in the same year in which the Bureau sent out the notice of the tax sale.
We conclude that notice requirements of the Act were not met in this case. The order of the lower court, therefore, is reversed.
Order
And Now, this 1st day of September, 1978, the order of the Court of Common Pleas of Fayette County in the above-captioned matter is hereby reversed and the tax sale of the property at issue is hereby set aside.
Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §5860.602.
The Appellant relies also on the dissenting opinion by Judge Mastderino, now Justice Mahderino, who wrote as follows:
I dissent. Herbert and Esther Auritt are two distinct human beings, each of whom is an owner of the home sold at the tax sale. The record contains no evidence that Herbert and Esther are fused flesh forms animated by a single life spark. I have never met Herbert Auritt or Esther Auritt. I am reasonably confident, however, from the record before us that I can legitimately rely upon the doctrine of judicial notice to accurately conclude that Herbert is an ‘each’ and Esther is also an ‘each.’
Since there are two ‘eaches’ both of whom are owners of the home, the provisions of the Real Estate Tax Law were not followed and the tax sale cannot be valid.
The provisions of the law clearly require that the notice be sent to ‘personal addressee only’ and ‘to each owner’. In this case, the letter sent, allegedly notifying the owners of the sale, was addressed to ‘Mr. and Mrs. Auritt’. Obviously, the letter here was addressed to two people and compliance with a statute mandating delivery to ‘personal addressee only’ and to ‘each owner’ was impossible. Esther and Herbert Auritt held their property as tenants by the entireties. Since there were two owners of the property in question and the statute required that notice of an impending tax sale be sent to each, the Tax Claim Bureau failed to comply with the statute by not sending a separate notice of the sale to each owner.
*454 While it is true that tenancies by the entireties occupy a unique position in the realm of estate law, present enlightened social and economic attitudes make it unrealistic for the courts to continue to follow Bracton’s maxim: ‘Man and wife are as one person, for they are one in flesh and blood.’ It is obvious that man and wife are not one person. They are two distinct beings, who, if they hold property as tenants by the entireties, are two distinct owners of an undivided whole property. As two separate and distinct owners, notice of an impending tax sale of property owned by each should be given separately to each. The majority correctly points out that there must be strict compliance with the notice provisions of a tax sale statute.
The Legislature, of course, would be free to change the law and provide that husband and wife are to be treated as one person and notice to either would be sufficient.
The Legislature, in other areas of the law, has specifically mandated that owners of undivided interests in property shall be treated as one person but they have not said any such thing in the Heal Estate Tax Sale Law. (Footnote omitted.)
Tax Claim Bureau of Montgomery County v. Wheatcroft, supra, 2 Pa. Commonwealth Ct. at 415-417, 278 A.2d at 176-77.