In re Sale of Real Estate By Lackawanna County Tax Claim Bureau

91 A.3d 316, 2014 WL 1911461, 2014 Pa. Commw. LEXIS 267

Opinions

OPINION BY

President Judge PELLEGRINI.¹

Nicole Pascal (Pascal) appeals from an order of the Court of Common Pleas of Lackawanna County (trial court) dismissing her objections, exceptions and petition to set aside or void the judicial sale of her real property pursuant to the Real Estate Tax Sale Law (Law).² For the following reasons, we vacate the trial court’s order and remand the case for an evidentiary hearing.

Pascal owned tax-delinquent real estate in Scranton, Pennsylvania, which was subject to a tax upset sale but did not sell.³ Subsequently, a judicial sale was held at which RRR Investments, LLC purchased the property.⁴ Pascal filed objections, exceptions and a petition to set aside or void the judicial sale, alleging that the Lacka-wanna County Tax Claim Bureau (Bureau) violated the Law’s notice provisions because it failed to provide adequate notice of the upset sale⁵ and to properly post the property⁶ prior to the upset sale. She further alleged that the Bureau failed to provide adequate notice of the judicial sale because notice was served at an outdated address.⁷

The trial court did not hold a hearing but instead directed the parties to file briefs in support of and in opposition to Pascal’s petition. Relying on the Bureau’s brief and its exhibits, the trial court found that the Bureau complied with the notice provisions and it sustained the judicial sale and dismissed Pascal’s petition. This appeal followed.

On appeal,⁸ Pascal contends that the trial court’s decision lacks supporting evidence because the trial court did not hold a hearing to enter evidence into the record but relied upon the parties’ briefs. RRR Investments, LLC counters that a hearing was unnecessary because the parties’ briefs contained undisputed facts establishing that the Bureau’s upset tax and judicial sale complied with the Law’s notice provisions.

Regardless of what was alleged in the parties’ briefs, an evidentiary hearing was needed to establish facts of record. Because a hearing was not held, the only facts the trial court relied upon were those contained in briefs and exhibits. Because briefs are not “facts” and are not of record, they cannot serve as a basis for the trial court’s decision. Erie Indemnity Co. v. Coal Operators Casualty Co., 441 Pa. 261, 272 A.2d 465, 466-67 (1971) (“Apparently, the court took into consideration facts alleged in the briefs, but briefs are not part of the record, and the court may not consider facts not established by the record.”) (footnotes omitted).

Accordingly, we vacate the trial court’s order and remand the case for an eviden-tiary hearing.

ORDER

AND NOW, this ltth day of May, 2014, the order of the Court of Common Pleas of Lackawanna County dated July 28, 2013, is vacated and this case is remanded for an evidentiary hearing in accordance with the foregoing opinion.

Jurisdiction is relinquished.

Footnotes

1

. This opinion was reassigned to the authoring judge on April 7, 2014.

2

. Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101-5860.803.

3

. Section 610 of the Law enables a tax bureau to petition the court of common pleas to subject a property to a judicial sale when it does not sell at an upset tax sale. 72 P.S. § 5860.610. Section 610 directs that "[ujpon the presentation of such petition, ... the court shall grant a rule upon all parties thus shown to be interested to appear and show cause why a decree should not be made that said property be sold....” Id.

4

. The property at a judicial sale is sold to the highest bidder "freed and cleared of all tax and municipal claims, mortgages, liens, charges and estates, except separately taxed ground rents.” Section 612(a) of the Law, 72 P.S. § 5860.612(a).

5

. Section 602 sets forth the notice requirements for upset tax sales:

(a) At least thirty (30) days prior to any scheduled sale the bureau shall give notice thereof, not less than once in two (2) newspapers of general circulation in the county, if so many are published therein, and once in the legal journal, if any, designated by the court for the publication of legal notices. Such notice shall set forth (1) the purposes of such sale, (2) the time of such sale, (3) the place of such sale, (4) the terms of the sale including the approximate upset price, (5) the descriptions of the properties to be sold as stated in the claims entered and the name of the owner.

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(e) In addition to such publications, similar notice of the sale shall also be given by the bureau as follows:

(1) At least thirty (30) days before the date of the sale, by United States certified mail, restricted delivery, return receipt requested, postage prepaid, to each owner as defined by this act.

(2) If return receipt is not received from each owner pursuant to the provisions of clause (1), then, at least ten (10) days before the date of the sale, similar notice of the sale shall be given to each owner who failed to acknowledge the first notice by United States first class mail, proof of mailing, at his last known post office address by virtue of the knowledge and information possessed by the bureau, by the tax collector for the taxing district making the return and by the county office responsible for assessments and revisions of taxes. It shall be the duty of the bureau to determine the last post office address known to said collector and county assessment office.

(3)Each property scheduled for sale shall be posted at least ten (10) days prior to the sale.

72 P.S. § 5860.602(a), (e)(1)-(3).

6

. Although the Law does not prescribe a particular method of posting, "the method chosen must be reasonable and likely to inform the public and the taxpayer of an intended real property sale.” Cruder v. Westmoreland County Tax Claim Bureau, 861 A.2d 411, 416 (Pa.Cmwlth.2004).

7

. Section 611 directs that service of the rule to show cause why the property should not be subjected to a judicial sale "shall be made in the same manner as writs of scire facias are served in this Commonwealth.” 72 P.S. § 5860.611.

8

. Our standard of review in a tax-sale case is limited to determining whether the trial court abused its discretion, rendered a decision lacking supporting evidence, or clearly erred as a matter of law. Santarelli Real Estate, Inc. v. Tax Claim Bureau of Lackawanna County, 867 A.2d 717, 721 (Pa.Cmwlth.2005).