City of Reading v. Zeiber

62 A.3d 481, 2013 WL 310313, 2013 Pa. Commw. LEXIS 32
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 28, 2013
StatusPublished
Cited by2 cases

This text of 62 A.3d 481 (City of Reading v. Zeiber) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Reading v. Zeiber, 62 A.3d 481, 2013 WL 310313, 2013 Pa. Commw. LEXIS 32 (Pa. Ct. App. 2013).

Opinion

OPINION BY

Senior Judge COLINS.

Janice'Lee Zeiber (Appellant) appeals the April 20, 2012 order of the Berks County Court of Common Pleas (Trial Court) denying her Petition to Set Aside Sheriffs Sale of Real Property. Upon review, we reverse.1

On June 18, 2007, the City of Reading (City) filed a lien to recover back taxes on 427 North 12th Street, Reading, Pennsylvania (Property). At the time of filing, [482]*482Appellant and Arthur L. Zeiber were listed as the record owners of the Property.2 On July 8, 2011, the Trial Court issued an order directing the Property to be sold at Sheriffs sale. (Order 7/8/2011, R.R. at 123a-124a.) This July 8, 2011 order followed approximately four years during which the City assiduously attempted to provide notice of the multiplying liens and afford process, which Appellant steadfastly ignored.3 Following entry of the Trial Court’s July 8, 2011 order, the Property was scheduled for Sheriffs sale on September 9, 2011. (Notice of Sheriffs Sale R.R. at 128a-129a; Proof of Postage, R.R. at 132a.) On September 9, 2011, the Reading, Pennsylvania area experienced historic flooding, forcing the Sheriffs office to continue the sale. (Hearing Transcript (H.T.) at 13-14, R.R. at 187a.) Notice of the continued sale was announced and posted at the September 9, 2011 sale and the Sheriffs website was updated to reflect the new date of October 7, 2011, as the date of sale for all properties that had been scheduled for sale on September 9, 2011. (Id.) Appellant did not attend the September 9, 2011 Sheriffs sale. (H.T. at 5, 14, R.R. at 185a, 187a.) Appellant was not notified by posting at her property, first class mail, or personal service that the September 9, 2011 Sheriffs, sale had been continued until October 7, 2011. (H.T. at 14-16, R.R. at 187a.) At the October 7, 2011 Sheriffs sale, the Property was sold to Ramiro Castro Perez. (H.T. at 4-5, R.R. at 184a-185a; November 10, 2011 Sheriffs Writ of Execution Money Judgment, R.R. at 138a.)

On November 21, 2011, Appellant filed a Petition to Set Aside Sheriffs Sale of Real Property, alleging that the October 7, 2011 Sheriffs sale of the Property had not been conducted in accordance with the mandatory procedural requirements of Section 39.2(c) of the Municipal Claims and Tax Lien Act (MCTLA).4 Section 39.2(c) of the MCTLA requires that:

Notice of the court’s decree ordering a tax sale, together with the time, place and date of the sale, shall be served by first class mail on all parties served with the petition and rule, on any parties whose interest appeared of record after the filing of the petition but before the court’s decree and on any creditor who has obtained judgment against the owner of the premises prior to the date of the decree. The city shall file an affidavit of service of these notices prior to the date of the sale.

53 P.S. § 7193.2(c) (emphasis added).

The Trial Court denied Appellant’s Petition in an April 20, 2012 order. The Trial Court reasoned in a subsequent opinion that the procedural requirements of Section 39.2(c) of the MCTLA, including proper notice and the filing of an affidavit of service, had been satisfied for the September 9, 2011 sale and therefore adherence was sufficient for the October 7, 2011 sale.

Appellant first argues that the language of Section 39.2(c) of the MCTLA requires that when a Sheriffs sale is continued, the record owner of a property scheduled for sale must be served by first class mail with notice of the time, place, and date of the continued sale and the city must file an [483]*483affidavit of service of such notice prior to the date of the continued sale. 53 P.S. § 7193.2(c). Appellant argues that all the evidence of notice of the September 9, 2011 Sheriffs sale presented here is of no moment, because the sale was not actually-held on September 9, 2011.

In support of this argument, Appellant relies on City of Philadelphia v. Schaffer, 974 A.2d 509, 512 (Pa.Cmwlth.2009), in which this Court examined Section 39.2 of the MCTLA and characterized it as containing, “mandatory procedural requirements ... enacted by the General Assembly as a safeguard to ensure that a city has taken all of the appropriate steps prior to depriving a person of his/her right to real property.” In Schaffer, this Court specifically concluded that the city had failed to act in accordance with part (c) of Section 39.2 because, even though it did file an affidavit of service, it did not do so until twenty days after the sale, when the statute specifically mandates an affidavit of service must be filed prior to the date of sale. Id. at 513; see also 53 P.S. § 7193.2(c).

The situation here stands in stark contrast to the situation presented in Schaffer. Here, unlike Schaffer, the City did follow the mandatory procedural requirements contained in Section 39.2(c) of the MCTLA, including filing an affidavit of service on August 3, 2011. (Affidavit of Service 8/3/2011, R.R. at 126a.) Having satisfied the procedural requirements of the MCTLA necessary to proceed with a tax sale of the Property on September 9, 2011, the City was not required to do so again once the sale was continued. Instead, the City was obligated to comply with Pennsylvania Rule of Civil Procedure 3129.3(b), which establishes separate procedural requirements for instances where it becomes necessary to stay, continue, postpone or adjourn a tax sale. Pa. R.C.P. No. 3129.3(b). However, Appellant next asserts that even if the Pennsylvania Rules of Civil Procedure control and the MCTLA does not, the sale is still invalid, because the City did not comply with Rule 3129.3(b) by announcing the new date of sale on September 9, 2011 when it sought to continue the Sheriffs sale.

Rule 3129.3(b) states:

If the sale is stayed, continued, postponed or adjourned to a date certain within one hundred thirty days of the scheduled sale, notice of which sale was given as provided by Rule 3129.2, and public announcement thereof, including the new date, is made to the bidders assembled at the time and place fixed for the sale, no new notice as provided by Rule 3129.2 shall be required, but there may be only two such stays, continuances, postponements or adjournments within the one hundred thirty day period without new notice.

Pa. R.C.P. No. 3129.3(b) (emphasis added). There is nothing ambiguous in the language of Rule 3129.3(b); it requires that where it is necessary to continue a Sheriffs sale, the public announcement of the continuation must include the new date of sale.

The evidence in the record concerning the announcement made on September 9, 2011, about the continuation of the Sheriffs sale here, consists of the testimony of the real estate administrator of the Berks County Sheriffs Office, Jennifer DeFrees. The relevant testimony of Ms. DeFrees is as follows:

Q: What happened in terms of posting or advertising or of this continuance?
A: We — we consulted with our solicitor first, and he advised that we make an announcement at the sheriffs sale that day. So we had — myself and Rebecca, the assistant administrator, went over to the sheriffs sale, made an announce[484]*484ment, a public announcement.

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62 A.3d 481, 2013 WL 310313, 2013 Pa. Commw. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-reading-v-zeiber-pacommwct-2013.