Constantino v. Carbon County Tax Claim Bureau

895 A.2d 72, 2006 Pa. Commw. LEXIS 136
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 9, 2006
StatusPublished
Cited by3 cases

This text of 895 A.2d 72 (Constantino v. Carbon County Tax Claim Bureau) 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
Constantino v. Carbon County Tax Claim Bureau, 895 A.2d 72, 2006 Pa. Commw. LEXIS 136 (Pa. Ct. App. 2006).

Opinion

OPINION BY Judge

COHN JUBELIRER.

Appellant John L. Constantino (Owner) challenged a judicial sale of property that had belonged to him, claiming he did not receive adequate notices under the Real Estate Tax Sale Law (Tax Sale Law)1 of both the tax upset sale and the subsequent judicial sale. Owner appeals the trial court’s determination that his challenge was time-barred by the six-month statute of limitations applicable to challenges to judicial sales because he failed to bring the challenge within six months after having actual knowledge of the sale. For the reasons that follow, we affirm.

Owner failed to pay his 2001 real estate taxes for a parcel of developed property located in Penn Forest Township, Carbon County, Pennsylvania. As a result, the subject property was exposed to a tax upset sale but received no bids. Subsequently, the property was listed for a judicial sale scheduled for November 14, 2003, at which time it was acquired by Statewide Investments, Ltd. (Purchaser). On March 28, 2004, Owner’s counsel sent a letter to Purchaser informing it that “[a]t this time I will be filing an action to set aside the tax sale” because he had “never been advised of the aforesaid sale.” (Letter of David A. Martino, Esq., to Purchaser 8/23/2004 (Letter).)

It was not until November 12, 2004, approximately eight and one-half months after sending the Letter, that Owner filed a Petition to Set Aside the Judicial Sale (Petition). In the Petition, Owner noted that he resided in Niagara Falls, New York. He argued that the sale was not conducted in accordance with the requirements of the Tax Sale Law because he had not received notice of either the tax upset sale or the judicial sale, and because the Carbon County Tax Claim Bureau (Bureau) failed to undertake additional notification efforts.2

[74]*74Both the Bureau and Purchaser answered the Petition. Purchaser asserted, as an affirmative defense in its Answer and New Matter, that the Petition was barred by the six-month statute of limitations which is found in Section 5522(b)(5) of the Judicial Code, 42 Pa.C.S. § 5522(b)(5), and “defined” by Murphy v. Monroe County Tax Claim Bureau, 784 A.2d 878 (Pa.Cmwlth.2001). Purchaser then filed a Motion for Summary Judgment (Motion), arguing that the six-month statute of limitations for challenges to judicial sales precluded Owner’s challenge. In response to the Motion, Owner argued that:

2. Service was never made on the [Owner] of the tax sale as is required. Thus the listing of the property in question was improper.
3. The order issued by this Honorable Court to list [Owner’s] property for judicial sale was improper since the [Owner] had not been given proper notice of the fact that his property was being listed for tax sale.
8. Since there was no proper notice given to the [Owner] and his lender the court erred in listing the property for judicial sale.
9. Since the judicial sale was illegal and improper the six month statute of limitations does not apply in this matter.

(Owner’s Response (Response) to Purchaser’s Motion at 2.)

The trial court granted Purchaser’s Motion, reasoning that, even if notices of the sales were defective, it could be inferred that Owner had actual notice of the sale as of the date of the Letter. Therefore, even if the running of the statute of limitations was tolled until the date of the Letter, Owner still failed to bring this claim within six months of that date. Owner appeals from this decision.

Preliminarily, we set forth our standard of review and the applicable law. In reviewing a summary judgment motion, a court views the record in the light most favorable to the non-moving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Fine v. Checcio, 582 Pa. 253, 265, 870 A.2d 850, 857 (2005). “An appellate court may reverse the granting of a motion for summary judgment if there has been an error of law or an abuse of discretion.” Id. at 265 n. 3, 870 A.2d at 857 n. 3.

“Once a cause of action has accrued and the prescribed statutory period has run, an injured party is barred from bringing his cause of action.” Id. at 266, 870 A.2d at 857. A cause of action accrues as soon as the right to institute and maintain the suit arises. Id. The discovery rule is an exception to the statute which [75]*75provides that “the statute is tolled, and does not begin to run until the injured party discovers or reasonably should discover that he has been injured and that his injury has been caused by another party’s conduct.” Id. at 268, 870 A.2d at 859.

The statute of limitations relied on by the trial court provides that “[t]he following actions and proceedings must be commenced within six months: [a]n action or proceeding to set aside a judicial sale of property.” 42 Pa.C.S. § 5522(b)(5). This Court has noted that, while this statute of limitations does not apply to upset tax sales, it does apply to judicial sales. Murphy. Thus, as Owner is seeking to set aside a judicial sale, the statute of limitations found in Section 5522(b)(5) is applicable here.

In his arguments before this court, Owner offers sparse legal authority to support his position that the statute of limitations is not applicable. He argues only that 42 Pa.C.S. § 5522 “was established to protect the government, and not a purchaser of property at a judicial sale.... ” (Owner’s Br. at 9-10.) He further cites to Landis v. City ofPhila., 245 Pa.Super. 514, 369 A.2d 746 (1976) and Yurechko v. Allegheny County, 430 Pa. 325, 243 A.2d 372 (1968), for the proposition that “[t]he purpose of this section is for the most part to allow a government unit the opportunity to conduct its[ ] own investigation into the incident.” (Owner’s Br. at 10.)

From our review of these cases, neither Landis nor Yurechko supports Owner’s contention that the statute of limitations can only be raised by the government. Neither case involved application of the statute of limitations. Both involve a portion of Section 5522 that requires a party bringing a personal injury negligence claim against a governmental unit to provide notice to that unit within six months from the date of injury of that party’s intent to bring such a claim. In relying solely on these cases to challenge the statute of limitations argument, which we find inapplicable, Owner presents this Court with no other authority as to why the claim is not barred by the statute of limitations.

Although Owner raises no other arguments as to the statute of limitations, Owner does raise before this Court what is essentially an equity argument that he should be allowed to bring his challenge nunc pro tunc because the Bureau was negligent in failing to provide him with notice of both the tax sale and judicial sale. In support of his argument, Owner cites to Hanoverian v. Lehigh County Bd. of Assessment, 701 A.2d 288

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895 A.2d 72, 2006 Pa. Commw. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/constantino-v-carbon-county-tax-claim-bureau-pacommwct-2006.