Consolidated
Reports and Return of TCB of Northumberland Co. – Appeal of Neff – Commonwealth
Court – en banc (6-1) – January 21, 2016
The
majority upheld the tax sale in this case, in which
-the resident property owner did not
get service by certified mail, as required by RETSL, 72 P.S. 5860.101 et seq.
- because of lack of such service,
tax claim bureau (TCB) had to attempt personal service
- 3 attempts at person service made
(August 5th, 8th, 9th) – all during the normal
work day
- personal service not successful
- trial court granted TCB petitions
court for waiver of personal service
The
majority held that the property owner had actual notice of the tax sale, thus
obviating strict compliance with the notice provisions of RETSL. Strict compliance with the notice
requirements of Section 5860.602 is not required when the Bureau proves that a
property owner received actual notice of a pending tax sale. Sabbeth v. TCB of
Fulton County, 714 A.2d 514, 517 (Pa. Cmwlth. 1998).
In
addition to the notice requirements of Section 602, if the property is, as
here, occupied by the owner, Section 601(a)(3) of the Law requires that each
owner-occupant receive additional notice of a tax sale by personal service by
the sheriff, a deputy or other person appointed by the country commissioners. 72
P.S. § 5860.601(a)(3). The requirements of Section 601(a)(3) are cumulative and
apply in addition to the tax claim bureaus’ obligations to provide notice
through publications, posting, and mail. This provision shows 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
County, 651 A.2d 1157, 1159 (Pa. Cmwlth. 1994).
However,
the requirement of personal service can be waived “for good cause shown.” “In sum, in the
absence of actual notice, the Bureau must prove strict compliance with the
notice requirements of Section 602 of the Law. Further, and notwithstanding
whether a taxpayer received actual notice, the Bureau must demonstrate that it
personally served notice on any owner-occupant of the Property subject to the
upset tax sale or obtained a waiver of personal service from the trial court.”
The trial and appellate courts held that a waiver was
appropriate, since the TCB had shown “good cause” for it. The appellate court held that the trial court’s
finding of “good cause” was a “factual-based inquiry...entrust to the trial court’s
discretion” and thus subject to only very limited appellate review for abuse of
discretion (slip opinion at 19-21).
Dissent
Judge Leavitt filed a strong dissent. She argued that the “process
followed by the Tax Claim Bureau...turned the statutory scheme on its head” and
that the required “good cause” for waiver of personal service had not been
shown. She noted that the TCB’s
attempt at service were not a “practical effort,” since the attempts at service
were made during a single week and at times when the taxpayer “was not there
and not likely to be there.” She also noted that service was not made by
sheriff, a deputy, or a person properly appointed by the county commissioners,
as required by the statute
Judge
Leavitt also decisively and at length rejected the notion that the issue of
good cause was a fact-based inquiry. “Whether
a trial court reaches the proper legal conclusion on the evidence presented is
a question of law....[citations omitted] Likewise, a question of statutory
interpretation is a question of law. Navickas v. UCBR, 787 A.2d 284, 288
(Pa. 2001). As our Supreme Court has explained, the proper interpretation and
application of language [in a contract] … presents a question of law over which
our scope of review is plenary and standard of review de novo.” Pennsylvania
National Mutual Ins. Co. v. St. John, 106 A.3d 1 (Pa. 2014). Likewise, the
interpretation and application of language in a statute presents a question of
law; accordingly, the trial court is afforded no deference and its decision
“will instead be reviewed de novo.” Id. A tribunal lacks discretion to construe a
statute incorrectly. The application of the law to facts is a legal conclusion,
and the appellate standard of review is de novo; no deference is owed to
the tribunal below. See, e.g., Bowling v. Office of Open Records, 75
A.3d 453, 466 (Pa. 2013)....See also In re Doe, 33 A.3d 615.
The
dissent argued that “by affirming the trial court, this Court has established
the paradigm for a waiver of personal service in all 67 counties: three
property visits (i) in a single week in August (when owner-occupants often vacation),
(ii) between the hours of 9:19 a.m. and 4:10 p.m., and (iii) by any person,
whether or not qualified by virtue of being a member of the sheriff’s office or
having been appointed by the county commissioners. Effectively, this replaces
the personal service requirement with three visits to an owner-occupied
property by anyone who can read and operate a vehicle.
"At stake
is a family home scheduled for a tax sale. It was the legislature’s intent that
the sheriff, or server appointed by the county, notify the owner of that sale,
at least ten days before its occurrence, by placing a notice into the hands of
the owner-occupant. The Tax Claim Bureau made three visits to Taxpayer’s
property. It did not make a practical effort at personal service upon Taxpayer
herself. It did not designate a server qualified to make personal service."
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