Schooley v. Beaver County Tax Claim Bureau
Schooley v. Beaver County Tax Claim Bureau
Opinion of the Court
OPINION BY
Leroy W. Schooley (Schooley) appeals to this Court from the November 20, 2009 order of the Court of Common Pleas of Beaver County (trial court) denying his Petition to Upset Tax Sale, wherein Schoo-ley alleged defective posting of the notice required by Section 602(e)(3) of the Real Estate Tax Sale Law (Tax Sale Law).
At all relevant times, Schooley resided on the property at issue, 1048 State Route 168 in Darlington, Beaver County, PA. He had fallen delinquent on his real estate taxes for the years 2006 and 2007. As a result, the Tax Claim Bureau listed the property for tax sale, ultimately selling the same to E.D. Lewis (Purchaser) for $10,161.06 on September 15, 2008. Schoo-ley filed a timely objection to the sale asserting, inter alia, defective posting of the notice required by the Tax Sale Law. The trial court upheld the sale, concluding that any defect in posting did not warrant overturning the sale. Schooley now appeals to this Court.
On appeal, Schooley argues that according to Ban v. Tax Claim Bureau of Washington County,
The Purchaser counter-argues
We now reaffirm Ban as controlling law in this Commonwealth, and hold that the trial court erred in failing to apply the principles set forth therein. While Section 602(e)(3) of the Tax Sale Law states, in relevant part, “[e]ach property scheduled for sale shall be posted at least ten (10) days prior to the sale,” the courts are responsible for applying the Tax Sale Law in such a manner as to afford property owners due process of law with respect to tax sales. In so doing, this Court has interpreted and applied Section 602(e)(3) with respect to varying scenarios, including that which is now before the Court, the scenario wherein the required notice is posted to the back-door of a residence as opposed to the front-door. Specifically, this Court was faced with the same scenario in Ban. There, this Court reversed a trial court decision to uphold a tax sale where, as here, the property owner had actual notice of the sale and the taxing office posted notice of the pending sale on a rear entrance door, not visible from the public street or sidewalk fronting the property. This Court reasoned that notice provisions are to be strictly construed, that strict compliance is required to prevent deprivation of property without due process of law, and that if notice is defective, then the sale is void. Significantly, this Court explained that the courts: “must consider not only whether the posting is sufficient to notify the owner of the pending sale, but provides sufficient notice to the public at large.... ” Id., 698 A.2d at 1388. Thus, according to Ban, the Tax
The concern noted in Ban was that the posting at issue was not visible from the public street or the sidewalk fronting the property. Such is the case here. And while Ban explained that the posting must provide sufficient notice to the public at large, in this case, the posting provided no notice at all to the public at large. The posting at issue here was not posted such that it could be seen by the public, was not conspicuous, and was not placed in such a manner so as to attract the attention of an ordinary passerby. Thus, Ban clearly compels reversal of the trial court’s order.
Purchaser is correct, however, in that cases have been brought before this Court subsequent to Ban, wherein this Court has further defined what is required by due process under the Tax Sale Law with respect to posting. Thus, while Ban sets forth the general rule that posting the back-door or backside of a residence (the side opposite the public highway) is absolutely unacceptable as a substitute for conspicuous posting, the cases relied upon by the trial court (Tax Sale of 2003 Upset and Popple) indicate that this Court has made exceptions to the general rule requiring strict compliance with the conspicuous posting requirement.
In Tax Sale of 2003 Upset, this Court made an exception to the general rule requiring strict compliance because there was no building on the property at issue and a notice was posted where it was likely to be seen by the general public.
This Court also made an exception to the rule requiring strict compliance with the conspicuous posting requirement in Popple. There, the exception was made, in part, because under the “unusual facts” and unique circumstances presented, providing notice to the general public via posting could not be accomplished due to the fact that the property was without a direct road and, thus, very difficult to access. Here, the record indicates that the front of the property at issue was visible from State Route 168, sitting at a distance of no greater than 500 feet from the public road, with a driveway extending from the road to the residence. Thus, the property at issue was not difficult to view or access, as was the case in Popple. Further, the trial court made no finding as to whether a conspicuous posting on the front-door of the property (or front-yard for that matter) would have been visible to an ordinary passerby on the public road, by a common delivery person or any other individual visiting the residence for whatever reason. Therefore, this case is sufficiently distinguished from Popple such that the exception created therein is not applicable to the instant matter.
The general rule as set forth in Ban controls this matter and compels reversal
For these reasons, the trial court’s order is reversed.
ORDER
AND NOW, this 1st day of September, 2010, the November 20, 2009 order of the Court of Common Pleas of Beaver County denying Leroy Schooley’s Petition to Upset Tax Sale is REVERSED.
The September 15, 2008 sale of Leroy Schooley’s property is hereby SET ASIDE.
. Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. § 5860.602.
. "The Court's review in tax sale cases is limited to determining whether the trial court abused its discretion, rendered a decision lacking in supporting evidence or clearly erred as a matter of law.” Popple v. Luzerne Cnty. Tax Claim Bureau, 960 A.2d 517, 519 n. 1 (Pa.Cmwlth. 2008).
. Schooley states that the trial court was mistaken as to this date, and that he actually appeared at the taxing office on September 16, 2008.
. According to Schooley: "The residence’s front door is anywhere from 350 feet to 500 feet from Route 168.” Appellant's Br. at 5. Purchaser admits: "The subject property is situated on a S'k acre tract that is nestled back off the road between 375 and 500 feet." In-tervenor-Appellee's Br. (Appellee’s Br.) at 2.
. 960 A.2d 517 (Pa.Cmwlth. 2008).
. 860 A.2d 1184 (Pa.Cmwlth. 2004).
. 698 A.2d 1386 (Pa.Cmwlth. 1997).
. The Tax Claim Bureau joins Purchaser's argument and makes no argument independent of Purchaser.
. Purchaser cites ten cases on this point, each of which support the general proposition that objections due to technical deficiencies are waived where there is actual notice; however, none of the cases cited involve waiver of the
. Notice was taped to a tree near the owner's mailbox.
Concurring Opinion
CONCURRING OPINION BY
I concur with the result reached by the majority. I write separately, however, to note the complexity involved in posting the property at issue.
To show that a property was properly posted, the Tax Claim Bureau must demonstrate compliance with a number of criteria. In In re Upset Price Tax Sale, 147 Pa.Cmwlth. 52, 606 A.2d 1255 (1992), this Court explained the multiple objectives of posting a property:
Not only does public posting assist in informing a taxpayer that his or her property is to be exposed at tax sale, especially when, as here, personal service cannot be accomplished, it serves the additional purpose of notifying others whose interest may be affected by the sale such as mortgage and other lien holders. Posting also serves to notify the public at large that the property is going to be offered at tax sale.
Id. at 1258; see also Ban v. Tax Claim Bureau of Washington County, 698 A.2d 1386, 1389 (Pa.Cmwlth. 1997) (“the statute requires that notice be posted so that it can be seen by the public as well as the occupant”). Thus, this Court has held that the posting requirement is designed to accomplish three distinct objectives: (1) informing the owner; (2) notifying anyone else with an interest in the property; and (3) notifying the public at large.
In this case, given the unusual configuration of the residence, it may have been challenging for the Tax Claim Bureau to satisfy the three objectives of the posting requirement with one posting. The residence is located on a five and a half acre plot of land. (Hr’g Tr. at 28, October 27, 2009, R.R. at 51a.) The front of the residence faces State Route 168, which is 350-500 feet from the residence. (Hr’g Tr. at 28, R.R. at 51a.) There is only one approach to the residence, a private driveway that leads from State Route 168 to the rear of the residence, where the garage doors are located. (Hr’g Tr. at 29, R.R. at 52a.) The property is sloped to the rear so that the basement and garage doors are level with the ground and the driveway is “on the lower part of the property.” (Hr’g Tr. at 28-29, R.R. at 51a-52a.) There is no dispute that, to enter the residence, the original property owner, Leroy W. Schoo-ley (Schooley), would follow the driveway to the rear of the residence, park outside the garage, and enter through the rear door of the residence. (Hr’g Tr. at 33-34, R.R. at 56a-57a.)
There was no testimony that Schooley, or anyone else, ever used the front door. Thus, by posting the notice on the rear door, the door that Schooley used, the Tax Claim Bureau posted the property in a
In this case, Schooley knew of the sale, yet failed to take the necessary steps to protect his interest in the property; he now avoids the consequences of that failure by citing a technical defect in the posting. The majority correctly applied the controlling case law to Schooley’s case. I therefore concur, but I do so with the above observation.
. Schooley testified that he read the notice posted on the rear door. (Hr’g Tr. at 42, R.R. at 65a.)
Case-law data current through December 31, 2025. Source: CourtListener bulk data.