legislative power - non-delegation

Pennsylvania AFL-CIO v. Commonwealth – Cmwlth. Court – October 1, 2019 – precedential, reported

Article II, section 1 of the Pennsylvania Constitution states: “The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives.” PA. CONST. art. II, § 1. To avoid violating this provision, the General Assembly must make the “basic policy choices involved in [its] ‘legislative power’” when it authorizes some other entity to act. Protz II, 161 A.3d at 833.

This restriction services dual purposes: “it ensures that duly authorized and politically responsible officials make all of the necessary policy decisions, as is their mandate per the electorate,” and it “protect[s] against the arbitrary exercise of unnecessary and uncontrolled discretionary power.” Id.(citation omitted).

The restriction on delegation is not absolute, however, and the General Assembly may “assign the authority and discretion to execute or administer a law” to some other entity if it makes “the basic policy choices” and “include[s] ‘adequate standards which will guide and restrain the exercise of the delegated administrative functions.’” Id. at 833-34 (quoting Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 418 (Pa. 2005) (PAGE)).

Accordingly, a “law must contain some intelligible principle to which the person or body authorized to [act] is directed to conform.” Id. at 834 (internal quotation marks and citation omitted) (alteration in the original). Further, a law must include “procedural mechanisms that serve to limit or prevent the arbitrary and capricious exercise of the delegated power.” Id.

The non-delegation doctrine does not prohibit the General Assembly from “adopting as its own a particular set of standards which already are in existence at the time of adoption.” Protz II, 161 A.3d at 838 (emphasis added).

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actions against the Commonwealth - laches and estoppel

Berry v. State Employees Retirement Board – Cmwlth. Court – October 9, 2019 – unreported**

Laches

“A party asserting the doctrine of laches must first show that there was a delay caused by the other party’s failure to exercise due diligence, and second, prejudice from that delay.” McGaffic v. City of New Castle, 74 A.3d 306, 317 (Pa. Cmwlth. 2013). 

A party asserting equitable estoppel against a Commonwealth agency must establish that: (1) the agency intentionally or negligently misrepresented a material fact; (2) the agency knew or had reason to know that the party would justifiably rely on the misrepresentation; and (3) the party acted to his or her detriment by justifiably relying on the misrepresentation. Carroll v. City of Philadelphia, Board of Pensions and Retirement, 735 A.2d 141, 144 (Pa. Cmwlth. 1999.

Equitable estoppel

A party asserting equitable estoppel against a Commonwealth agency must establish that: (1) the agency intentionally or negligently misrepresented a material fact; (2) the agency knew or had reason to know that the party would justifiably rely on the misrepresentation; and (3) the party acted to his or her detriment by justifiably relying on the misrepresentation. Carroll v. City of Philadelphia, Board of Pensions and Retirement, 735 A.2d 141, 144 (Pa. Cmwlth. 1999). 

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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

tax sale - notice - personal service - incarcerated owner is "owner-occupant"

Appeal of Hansford – Cmwlth. Court – October 1, 2019 – reported, precedential

Held:  Incarcerated person was an “owner occupant” under Real Estate Tax Sale Law, 72 P.S. secs. 5860.102 and thus was entitled to written notice of the tax sale, by personal service, under 72 P.S. secs. 5860.601(a)(3).

Heightened concern for owner-occupants

Section 601(a)(3) [of the RETSL] demonstrates 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 C[ty.], 651 A.2d 1157, 1159 (Pa. Cmwlth. 1994). We have said that, ‘[b]y enacting [S]ection 601[(a)(3)] [of the RETSL], the [General Assembly] expressed a desire to provide a qualitatively different type of notice to an owner occupant and afford such owner with increased protection by way of additional notice.’ McKelvey v. Westmoreland C[ty.] Tax Claim Bureau, 983 A.2d 1271, 1274 (Pa. Cmwlth. 2009).  Famageltto v. Cty. of Erie Tax Claim Bureau, 133 A.3d 337, 346-47 (Pa. Cmwlth. 2016). 

Focus on compliance of tax claim bureau, not on the alleged neglect of the owner

In reviewing the validity of a tax sale, the court must focus ‘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].’ [In re Consol. Reports & Return by Tax Claims Bureau of Northumberland Cty. of Props.], 132 A.3d [637,] 644 [(Pa. Cmwlth. 2016)] (quoting Smith [v. Tax Claim Bureau of Pike Cty.], 834 A.2d [1247,] 1251 [(Pa. Cmwlth. 2003)]). It is the conduct of the [Bureau] that is determinative of compliance with statutory notice provisionsClemmer v. Fayette Cty. Tax Claim Bureau, 176 A.3d 417, 422 (Pa. Cmwlth. 2017).

Temporary absence of owner-occupant is not dispositive

The fact that an owner may be temporarily physically incapable of inhabiting his property does not mean he is no longer an owner occupant, e.g. if hospitalized or incarcerated.  The tax claim bureau is not w/o a possible remedy in this situation.  Under circumstances where an owner who resides at the property may not be physically present at his property during the relevant time period, if the owner cannot be personally served, “the [B]ureau may petition the court of common pleas to waive the requirement of personal notice for good cause shown,” otherwise, the Bureau is mandated to personally serve the owner occupant. 72 P.S. § 5860.601(a)(3). The Bureau did not request waiver of personal service in the instant case.