Tax sales - notice - "additional notification efforts"

Delaney v. Montgomery County Tax Claim Bureau – Cmwlth. Court – August 27, 2019 – unreported memorandum decision**

Held:  Tax sale set aside because of failure of TCB to make proper “additional notification efforts”  concerning tax sale, as required by RETSL sec. 607.1, 72 P.S. sec. 5860.607a(a), when mailed notification is returned w/o signed return receipt or “under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee.”

Burden of proof – filing exceptions overcomes presumption of regularity – strict construction – due process

“It is the taxing authority’s burden to prove compliance with the statutory notice provisions. Casanta v. Clearfield County Tax Claim Bureau, [435 A.2d 681, 683 (Pa. Cmwlth. 1981)]. In Hughes v. Chaplin, [132 A.2d 200, 202 (Pa. 1957)], our Supreme Court established that a prima facie presumption of regularity in a tax sale exists until the contrary is shown. In Dolphin Service Corp. v. Montgomery County Tax Claim Bureau, [557 A.2d 38 (Pa. Cmwlth. 1989)], this Court, harmonizing Casanta with Hughes, held that the filing of exceptions overcomes the presumption of regularity in the tax sale; accordingly, the filing of exceptions requires a bureau to prove that it has complied with the statutory notice requirements. Strict compliance with those requirements is required in order to ensure due process, and the burden to show strict compliance lies exclusively with the tax claim bureau. Michener v. Montgomery County Tax Claim Bureau, 671 A.2d 285, 289 (Pa. Cmwlth. 1996).” In re Tax Sale of Real Property Situate in Paint Township, 865 A.2d 1009, 1015 (Pa. Cmwlth. 2005).  (emphasia added)  It is well settled that the statutory notice provisions in the Tax Sale Law “must be strictly construed lest a person be deprived of property without due process.” Maya v. County of Erie Tax Claim Bureau, 59 A.3d 50, 55 (Pa. Cmwlth. 2013). The tax claim bureau has the burden of proving its compliance with the notice provisions. Id.

Significant doubt about actual receipt of notice – additional notice requirements – Sec. 607.1 – 72 P.S. sec. 5860.607a(a)

When there is “significant doubt” about actual receipt of notice of a tax sale, the tax claim bureau must undertake additional efforts to give notice

[B]efore the tax sale can be conducted or confirmed, the bureau must exercise reasonable efforts to discover the whereabouts of such person or entity and notify him. The bureau’s efforts shall include, but not necessarily be restricted to, a search of current telephone directories for the county and of the dockets and indices of the county tax assessment offices, recorder of deeds office and prothonotary’s office, as well as contacts made to any apparent alternate address or telephone number which may have been written on or in the file pertinent to such property. When such reasonable efforts have been exhausted, regardless of whether or not the notification efforts have been successful, a notation shall be placed in the property file describing the efforts made and the results thereof, and the property may be rescheduled for sale or the sale may be confirmed as provided in this act.  72 P.S. §5860.607a(a) (emphasis added). 

In this case, the TCB admittedly did none of those extra things, which the court called “the mandatory minimum search required” by RETSL.

Newspaper notice – fact of notice v. content of notice

The TCB presented evidence that notices had been placed in the local newspapers and legal journal.  However, the it not provide evidence of the content of those notices.  “[A]bsent any evidence concerning the content of the newspaper advertisements, the trial court erred in holding that the Bureau established compliance with the publication requirement of Section 602(a) of the Tax Sale Law.

Focus of RETSL on TCB compliance with each and every element of the statutory requirements

It is well settled that a failure by a tax claim bureau to comply with each and every statutory requirement will nullify a tax sale. Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1252 (Pa. Cmwlth. 2003). Additionally, we have repeatedly explained that where notice is at issue, the proper focus is not on the alleged neglect of the owner, which is often present in some degree, but on whether the activities of the bureau comply with the requirements of the statute. Steinbacher v. Northumberland County Tax Claim Bureau, 996 A.2d 1095, 1099 (Pa. Cmwlth. 2010).

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**An unreported Commonwealth Court case may not be cited as binding precedent, but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716

Pennsylvania Bulletin of August 31, 2019

Table of contents   https://www.pabulletin.com/secure/data/vol49/49-35/index.html

Entire issue             https://www.pabulletin.com/secure/data/vol49/49-35/49-35.pdf

Attorneys – discrimination, bias, prejudice – proposed rule of professional conduct – comments due by September 30, 2019

https://www.pabulletin.com/secure/data/vol49/49-35/1309.html

The Disciplinary Board of the Supreme Court of Pennsylvania plans to recommend to the Court that it adopt amendments to Pennsylvania Rule of Professional Conduct  8.4 relating to misconduct, as set forth in Annex A. This proposed rule amendment is intended to make it professional misconduct for a lawyer, in the practice of law, to intentionally manifest bias or prejudice, or engage in harassment or discrimination.

Expungements – disciplinary records - professional licenses – IRRC approval of proposed regulation

https://www.pabulletin.com/secure/data/vol49/49-35/1336.html

Consumer – unfair market trade practices – proposed OAG regulations – comments due in 30 days – public hearing September 11, 2019

https://www.pabulletin.com/secure/data/vol49/49-35/1320.html

child abuse - expungement - continuance of hearing

M.W. v DHS– Commonwealth Court – Auguset 23, 2019 – reported, precedential opinion

Held:  DHS “misapplied the law and entered a manifestly unreasonable order” by denying the request for a continuance of the hearing by an incarcerated parent.   Parent failed to request a waiver of a timely hearing, but there is no statute or other law requiring an accused parent to file such a waiver.   The case was remanded for a new hearing in the merits “at a time mutually convenient to” the parent and CYS.

DHS was mandated to but did not “make reasonable efforts to coordinate the hearing date,” as required by 23 Pa. C.S. 6341(c.2), which requires a hearing within 90 days from the date of the scheduling order “unless all parties have agreed to a continuance.”  Id.

From the opinion:

Section 6341(c.2) of the Child Protective Service Law does not mandate the filing of a waiver of timeliness in order for a continuance to be granted. Section 6341(c.2) states that the Department “shall make reasonable efforts to coordinate the hearing date[.]” 23 Pa. C.S. §6341(c.2)(2). Once that is done, the Department will begin the hearing “within 90 days” of the scheduling order unless the parties agree to a continuance. 23 Pa. C.S. §6341(c.2)(3). 

There is no evidence that the Department made reasonable efforts to coordinate the hearing date with Mother and CYS, as required in Section 6341(c.2). The ALJ waited until the day of the hearing to inquire into CYS’s position on the continuance request. Had this inquiry been made earlier, CYS may have agreed. 

The indicated report would have simply remained on the ChildLine Registry until a hearing on Mother’s appeal could be held at a time when Mother could attend. It was Mother, not CYS, that bore the consequence of a hearing postponement. 

The Bureau cited Section 6341(c.2)(3) of the Child Protective Services Law to support its conclusion that Mother’s waiver of timeliness was required. However, this was error. 

There is no “waiver of timeliness” required from either party in order for a continuance to be granted. Although CYS could have agreed to a continuance, its acquiescence was not necessary. The ALJ still had discretion to grant Mother’s continuance request. Luzerne County, 203 A.3d at 398. Mother’s waiver was unnecessary and redundant because she, the alleged perpetrator, was the party requesting the continuance. Her act of making the request in itself waived the 90-day requirement. 

We hold that the Bureau misapplied the law and entered a manifestly unreasonable order by denying Mother’s continuance request for the sole reason that she did not file a waiver of timeliness. Accordingly, the adjudication of the Bureau is reversed and the matter is remanded to the Bureau for a new hearing on the merits of Mother’s appeal at a time mutually convenient to Mother and CYS. 

Findlaw - statutory and case law - Pennsylvania et al.

The General Assembly used to have a link to a Westlaw site that had an unofficial compilation of  the complete Pennsylvania statutes.  It used to be here, in the right-hand column under “additional resources.”  No longer.  Not sure when that happened, but it’s not there, so it’s cumbersome to find statutes at times, especially “unconsolidated statutes.”

I’m glad to say that I stumbled across Findlaw, where you can easily find and access all state statutes, consolidated and unconsolidated. 

It also provides case law.   

Here’s what it says.

FindLaw Codes are provided courtesy of Thomson Reuters Westlaw, the industry-leading online legal research system. For more detailed codes research information, including annotations and citations, please visit Westlaw.

FindLaw Codes may not reflect the most recent version of the law in your jurisdiction. Please verify the status of the code you are researching with the state legislature or via Westlaw before relying on it for your legal needs.

UC - UCBR findings - substantial evidence - court review

Spradlin v. UCBR – Cmwlth. Court – unreported* memorandum opinion – August 16, 2019

http://www.pacourts.us/assets/opinions/Commonwealth/out/159CD19_8-16-19.pdf?cb=1

Finding of overpayment reversed.  UCBR finding not supported by substantial record evidence.

Notwithstanding that the UCBR is “the ultimate fact-finder in [UC] matters and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded the evidence[,]” the record evidence does not support the UCBR’s findings and conclusions in this case. Sipps, 181 A.3d at 484 (quoting Ductmate Indus., 949 A.2d at 342); see Goldman v. UCBR (Pa. Cmwlth. No. 2392 C.D. 2014, filed September 25, 2015); see also VanKersen v. UCBR (Pa. Cmwlth. No. 1771 C.D. 2014, filed April 21, 2015).8 

As substantial record evidence does not support the UCBR’s findings.... the UCBR erred by concluding that Claimant was ineligible for....benefits.... [and was overpaid].

8 This Court acknowledges that its unreported memorandum opinions may only be cited “for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Goldmanand VanKersen are cited herein for their persuasive value. 

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*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716