Wednesday, March 03, 2010

tax sale - notice - rescheduled sale - statutory and due process rights

In re Upset Sale Tax Claim - Appeal of David Keller - Commonwealth Court - March 2, 2010

The court rejected the appeal of the purchaser of real property at an upset tax sale, who claimed that the property owner received sufficient knowledge of the original and rescheduled sales. The court held that the property owner had not received the notice required by the relevant statutes, and that the tax bureau violated the lower court's order concerning notice of the rescheduled sale, in volation of the property owner's due process rights.

In cases where a final, rescheduled sale takes place within the same calendar year as the date for which it was originally scheduled, no additional notice of a rescheduled sale is required, as set out in 72 P.S. §5860.601(a), provided that there there is proper notice of the original sale. Appeal of Manor Investments, Ltd., 640 A.2d 946 (Pa. Cmwlth. 1994); Sale of Property of Dalessio, 657 A.2d 1386 (Pa. Cmwlth. 1995)

Here, notice of the original sale "was given by several methods, but not all methods required by law," 72 P.S. §§5860.601(a). Thus, even though "there was some notice for the [original] sale, and some other notice for the [rescheduled] sale,. . . no sale satisfied all the statutory requirements. A valid tax sale depends on strict compliance with the three notice requirements in Section 602 of the Law: publication, certified mail and posting. Fernandez v. Tax Claim Bureau, 925 A.2d 207 (Pa. Cmwlth. 2007). The Bureau bears the burden of proving it complied with these notice requirements. Id. The Bureau failed to carry its burden in this case."

In addition, the court stated (in n. 5) that the trial court’s orders rescheduling the tax sale provided that the local tax bureau was "directed to take the requisite steps to provide adequate notice of the rescheduled sale date” but that it failed to do so. Thus, the "Bureau violated the court order upon which it claims the authority to effectuate the [final] tax sale. This constitutes a violation of Owner’s due process rights. See Jones v. Flowers, 547 U.S. 220 (2006) (before a government can force a citizen to satisfy his tax debt by forfeiting his property, due process requires the government provide adequate notice of the impending taking).


Note: The court's statement in n. 5 above under the decision of the Superior Court in Dewey v. LaSalle Bank Natl. Assn., a case which David Hull and Kevin Quisenberry litigated, which also involved inadequate notice of a rescheduled sale. The gist of their argument concerns Pa. R.C.P. 3129. The Supreme Court denied their petition for allowance of appeal, but the instant decision may help in future cases.