Lead Opinion
Opinion by
M.J.M. Financial Services, Inc. (M.J.M.) appeals two orders of the Court of Common Pleas of Delaware County (trial court), the first of which denied M.J.M.s petition to intervene and open judgment in a case wherein the trial court refused to confirm nisi the sale of property No. 40 located in Aston Township and the second of which denied M.J.M. s exceptions to refusal to confirm the sale nisi.
According to M.J.M.’s petition to open the judgment and to intervene, it first learned of Mr. Dignazios exceptions to the sale on September 26 when it received a letter dated September 19 from Mr. Dignazio advising M.J.M. of the petition to strike off the sale and of the hearing. M.J.M. alleges that this letter was sent by regular mail and not in conformity with local Rule 206. M.J.M. further avers that it received, on October 8, 1985, a letter from the Bureau whereby it first
On appeal here, M.J.M. contends that the trial court erred in setting aside the sale without there first having been a consolidated return of the tax sale filed with the trial court and without notice and joinder of the tax sale purchaser, i.e., M.J.M. It further asserts that the trial courts refusal to confirm the sale was in error.
Mr. Dignazio contends first that this Court lacks jurisdiction to decide the instant matter because there was no appeal of the September 24, 1985 trial court order setting the sale aside. We disagree. First, inasmuch as M.J.M. was not a party with respect to the September 24 order, it had no standing to appeal. Commonwealth v. Alessi, 105 Pa. Commonwealth Ct. 453, 524 A.2d 1052 (1987); Newberg v. Board of Public Education, 330 Pa. Superior Ct. 65, 478 A.2d 1352 (1984).
Next, Mr. Dignazio asserts that the petition to intervene was properly denied because it was untimely. It is
Mr. Dignazio further asserts that M.J.M. would not have standing to appeal to the trial court. It argues that it is up to the Bureau to prove that it complied with the notice provisions of the law and that where it concedes it has not done so, M.J.M. has no standing to complain. Mr. Dignazio, citing L. Marra Real Estate Appeal, 73 Pa. Commonwealth Ct. 85, 457 A.2d 231 (1983), argues that because a successful bidder lacks standing to file exceptions to the confirmation nisi, a fortiori, M.J.M. has no standing here. We respectfully disagree.
We note first that this case is distinguishable from the situation in L. Marra because here the successful bidder is not attempting to file exceptions to the confirmation of the sale but to file exceptions to the setting aside of the sale. There is a world of difference. Despite Mr. Dignazios protestations to the contrary, we find Wheatcroft Appeal, 217 Pa. Superior Ct. 342, 272 A.2d 186 (1970) to be controlling here. In Wheatcroft after a tax sale, the Bureau requested that the Court not con
The value of this hearing, however, was substantially diminished when the purchaser had no opportunity to appear at the hearing and contest the facts. The Wheat-croft Court indicated that to deny the purchaser standing might be to open the door to fraud because “the Bureau could repudiate an otherwise valid sale for frivolous or illegal reasons” and further opined that “in the interest of justice, the purchaser should have an opportunity to hear and refute any evidence offered by the Bureau or owner.” Id. at 345-46, 272 A.2d at 188. We agree and note that M.J.M. has alleged that Mr. Dignazio did receive notice of the sale through his secretary. This is a question of fact and M.J.M. deserves the opportunity to show that the notice provisions of the Law were met.
Accordingly, we shall vacate the order of the trial court denying the petition to intervene and remand this case with directions that the trial court permit the intervention and hold a hearing at which M.J.M. be permitted to put on evidence to demonstrate that the notice provisions of the Law were complied with.
And Now, this 25th of November, 1987, the order of the Court of Common Pleas of Delaware County in the above-captioned matter is vacated and this case is remanded with directions that the trial court permit M.J.M. to intervene in this matter and that the trial court hold a hearing at which M.J.M. be permitted to present evidence that the sale of the subject property was in compliance with the notice provisions of the Law.
Jurisdiction relinquished.
Mr. Dignazio in his answer to the petition to intervene avers that M.J.M. was not a party and hence that he had no duty to serve M.J.M. with a notice to strike the sale.
Because of our disposition of this matter, we need not reach the question of whether or not the trial court properly dismissed the exceptions.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
As indicated in the majority opinion, the tax sale was set aside because notice of the sale was given to an incompetent rather than the incompetents duly appointed guardian. M. J. M. contends that the evidence establishing this fact was not by sworn testimony. The record indicates that the guardian, who is also an attorney, made a statement to the Court that he was the guardian appointed by the trial judge hearing the matter now on appeal and that notice of the sale was not given to him. The attorney for the Tax Sale Bureau (Bureau) stipulated that it was aware of the guardianship and that the Bureau had not given notice to the guardian. On that basis, the trial court properly set aside the sale. The Bureau thereupon returned the purchasers (M. J. M.) check.
M. J. M. then petitioned to intervene because it had not been given an opportunity to contest the notice issue. What was there to contest? Notice to an incompetent with a duly appointed guardian is clearly insufficient. As noted, the Bureau stipulated that it was aware of the guardian but simply failed to give him notice. There is nothing more to be decided.
I would affirm the trial court.
