Friday, July 09, 2010

tax sale - notice - posting - hearsay evidence

Ebersole v. Blair County Tax Claim Bureau - Cmwlth. Court - July 9, 2010
unreported memorandum decision


http://www.pacourts.us/OpPosting/Cwealth/out/2002CD09_7-9-10.pdf


Hearsay evidence about posting by employee of the tax office was not sufficient under the law to prove proper posting.


It is well settled that a valid tax sale requires strict compliance with all three of the notice provisions of the Law, and that the sale is void if any of the three forms of notice are defective. In re Upset Sale Tax Claim Bureau McKean County on September 10, 2007 (Miller), 965 A.2d 1244 (Pa. Cmwlth.), petition for allowance of appeal denied, 602 Pa. 682, 981 A.2d 221 (2009). Strict compliance is necessary to guard against any deprivation of property without due process of law. Id.; Ban v. Tax Claim Bureau of Washington County, 698 A.2d 1386 (Pa. Cmwlth. 1997); In re Upset Price Tax Sale of September 10, 1990 (Sortino), 606 A.2d 1255 (Pa. Cmwlth. 1992).

In determining whether a property is properly posted, a court “[m]ust consider not only whether the posting is sufficient to notify the owner of the pending sale, but provides sufficient notice to the public so that any interested parties will have an opportunity to participate in the auction process.” Ban, 698 A.2d at 1388. By notifying the public at large of the sale, the taxing authority has the greatest opportunity to recover lost tax revenues. O’Brien v. Lackawanna County Tax Claim Bureau, 889 A.2d 127 (Pa. Cmwlth. 2005).

As a result, a court may set aside a tax sale where the property is not properly posted under Section 602(e)(3), even though the property owner possesses actual knowledge of the tax sale, because a defect in posting prevents adequate notice to the public. Ban.

Section 602(e)(3) does not provide a specific method of posting, merely stating that “[e]ach property scheduled for sale shall be posted at lease ten (10) days prior to the sale.” 72 P.S. § 5860.602(e)(3). Although a presumption of the regularity of the posting exists until the contrary appears, a property owner may create a contrary appearance and overcome this presumption by filing exceptions to the tax sale on the basis that the Law’s notice provisions were not strictly followed. Miller; Sortino.

The burden then shifts to the Bureau or to the purchaser to show that the Bureau strictly complied with the notice provisions of the Law. Miller; Sortino. “[T]he case law clearly establishes that the posting must be done in a manner reasonably calculated to provide notice to the public. The courts have required that the posting be conspicuous.” O’Brien, 889 A.2d at 128. “’Conspicuous’ means posting such that it will be seen by the property owner and the public generally. In re Sale of Real Estate by Montgomery County Tax Claim Bureau, 836 A.2d 1037 (Pa. Cmwlth. 2003).” Wiles v. Washington County Tax Claim Bureau, 972 A.2d 24, 28 (Pa. Cmwlth. 2009).

Based on the foregoing, it is clear that the trial court erred in concluding that the Bureau had sustained its burden of proof with respect to the posting requirements of Section 602(e)(3) of the Law. That portion of the testimony that was found credible by the trial court11 merely demonstrates that the witness from the tax office could not independently recall how the parcels of property had been posted, and that she relied upon the Bureau exhibits in testifying regarding the manner by which the parcels had been posted.

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