M.G. Molchan v. Mercer County TCB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael G. Molchan, :

Appellant :

:

v. :

: No. 382 C.D. 2023

Mercer County Tax Claim Bureau : Submitted: June 4, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge (P.)

HONORABLE ELLEN CEISLER, Judge

OPINION BY

JUDGE COVEY FILED: July 16, 2024

Michael G. Molchan (Molchan) appeals from the Mercer County

(County) Common Pleas Court’s (trial court) March 31, 2023 order1 denying his

Petition to Set Aside and Vacate Upset Tax Sale (Petition). Molchan presents two

issues for this Court’s review: (1) whether the trial court erred by admitting Palmetto

Posting, Inc.’s (Palmetto) July 18, 2022 field report (Report) into evidence under the

Uniform Business Records as Evidence Act (Act)2 by virtue of the agency

relationship between Palmetto and the County’s Tax Claim Bureau (Bureau); and

(2) whether the trial court abused its discretion by admitting the Report when the

authenticating witness possessed insufficient information regarding the manner in

which Palmetto prepared and maintained the Report. After review, this Court

reverses.

Molchan is the record owner of 445 Frank Street, Sharon, Mercer

County, Pennsylvania (Property). By March 11, 2021 Delinquent Tax Reminder

1

The trial court’s March 31, 2023 order was entered into the trial court’s docket on April

3, 2023.

2

42 Pa.C.S. § 6108.

Letter, sent by first-class mail to Molchan’s record address, the Bureau provided

courtesy notice to Molchan that the Property had been returned to the Bureau for

non-payment of its 2019 and 2020 real estate taxes. By April 22, 2021 Notice of

Return and Claim sent by certified mail to Molchan’s record address, the Bureau

notified Molchan that the Property’s 2020 real estate taxes remained unpaid and

warned him that his failure to pay the outstanding amount could result in the Property

being sold at a tax sale (Tax Sale).

Again, as a courtesy, by March 8, 2022 Delinquent Tax Reminder

Letter, sent by first-class mail to Molchan’s record address, the Bureau informed

Molchan that the Property had been returned to the Bureau for non-payment of its

2020 and 2021 real estate taxes. The March 8, 2022 Delinquent Tax Reminder Letter

was not returned to the Bureau as undeliverable.

On June 7, 2022, the Bureau sent Molchan a Notice of Public Sale of

the Property by certified mail to his record address, therein declaring that the

Property would be sold at a Tax Sale on September 20, 2022, unless Molchan made

a real estate tax payment by July 8, 2022. That certified mailing was returned as

undeliverable. The Bureau also sent the Notice of Public Sale by certified mail to

8246 Warren Sharon Road, Masury, Ohio.3 Molchan signed the certified mailing

receipt sent to the Ohio address on June 22, 2023, and it was returned to the Bureau.

The Bureau retained Palmetto to post the Notice of Public Sale on the

Property, which Palmetto did on July 18, 2022. See Reproduced Record (R.R.) at

15a-16a, 49a-50a. On September 2, 2022, the Bureau sent the Notice of Public Tax

Sale to Molchan by first-class mail at his record address. Also on September 2,

2022, the Bureau sent the Notice of Public Tax Sale to Molchan by first-class mail

3

While investigating alternative addresses for Molchan relative to another delinquent

property Molchan owned, the Bureau discovered the Ohio address and added it to Molchan’s tax

claim records.

2

to 8246 Warren Sharon Road, Masury, Ohio. The September 2, 2022 mailings were

not returned as undeliverable.

On September 20, 2022, Twenty Three, LLC purchased the Property at

the Tax Sale for $17,500.00. By September 26, 2022 certified mailings to Molchan

at his Pennsylvania and Ohio addresses, the Bureau notified Molchan that the

Property had been sold.

On December 5, 2022, Molchan filed the Petition in the trial court

challenging the Tax Sale on the basis that the Bureau did not give him proper prior

notice of the Tax Sale. Molchan specifically claimed that the Bureau’s posted notice

failed to comply with the Real Estate Tax Sale Law (RETSL).4 Molchan declared

that if the Bureau had afforded him proper notice of the Property’s Tax Sale, he

would have paid the delinquent taxes. The trial court scheduled a hearing on the

Petition for January 6, 2023, but rescheduled the hearing to March 31, 2023, at

Molchan’s request.

At the March 31, 2023 hearing,5 the Bureau presented the testimony of

the County’s Department of Revenue Director Cathy Herriott (Herriott), who heads

the Bureau. Herriott declared that the Bureau provided Molchan with all notice

required under the RETSL. See R.R. at 17a. Regarding posting, Herriott testified

that Palmetto posted the Notice of Public Sale on the Property on July 18, 2022, and

sent the Report and a photograph of the posting to the Bureau confirming the same.

See R.R. at 14a-16a, 29a, 49a-50a. The Bureau offered the Report into evidence as

a business record of the Bureau, which the trial court admitted over Molchan’s

4

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

5

Molchan did not attend the hearing. See R.R. at 6a.

3

counsel’s hearsay objection. See R.R. at 29a, 34a-35a. That same day, the trial court

denied Molchan’s Petition. Molchan appealed to this Court.6, 7

On April 24, 2023, the trial court directed Molchan to file a Concise

Statement of Errors Complained of on Appeal pursuant to Pennsylvania Rule of

Appellate Procedure (Appellate Rule) 1925(b) (Appellate Rule 1925(b) Statement).

On May 12, 2023, Molchan timely filed his Appellate Rule 1925(b) Statement. On

6

“‘This [C]ourt’s review of a trial court’s order in a tax sale matter is limited to determining

whether the trial court erred as a matter of law, rendered a decision that is unsupported by the

evidence, or abused its discretion.’ City of Phila. v. Auguste, 138 A.3d 697, 700 (Pa. Cmwlth.

2016).” City of Phila. v. Rivera, 171 A.3d 1, 4 n.7 (Pa. Cmwlth. 2017). Moreover, this Court’s

review of a trial court’s evidentiary rulings “is to determine whether the trial court abused its

discretion in deciding whether to admit or exclude the evidence in question.” Aiello v. Se. Pa.

Transp. Auth., 687 A.2d 399, 401 n.2 (Pa. Cmwlth. 1996).

“An abuse of discretion may not be found merely because an

appellate court might have reached a different conclusion,” but

instead requires demonstration that the lower court’s decision was

“a result of manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support from the evidence or the record

so as to be clearly erroneous.” Polett v. Pub[.] Comm[c’ns],

Inc., . . . 126 A.3d 895, 914 ([Pa.] 2015) (internal quotation marks

and alteration designations omitted).

Bayview Loan Servicing LLC v. Wicker, 206 A.3d 474, 482 (Pa. 2019).

7

On January 18, 2024, Molchan’s counsel, William G. McConnell, Jr., Esquire (Attorney

McConnell), filed a Motion for Leave to Withdraw Appearance and to Continue Oral Argument Due

to Conflict of Interest (Motion), wherein he informed this Court that, in light of his recent appointment

as Mercer County Solicitor, he can no longer represent Molchan. The Bureau’s counsel, William J.

Madden, Esquire (Attorney Madden), also confirmed that, in light of Attorney McConnell’s

appointment, Attorney Madden is no longer the Mercer County Solicitor and no longer represents

the Bureau. By January 31, 2024 Order (Order), this Court granted the Motion. The Order

declared that if new counsel did not enter an appearance on Molchan’s behalf by March 15, 2024,

the matter would be submitted for disposition on the briefs previously filed, without oral argument.

In addition, this Court stated that Attorney Madden would remain the Bureau’s counsel of record

until such time as new counsel enters an appearance on the Bureau’s behalf. Because no counsel

entered an appearance on Molchan’s behalf by March 15, 2024, and new counsel has not entered

an appearance on the Bureau’s behalf, on April 2, 2024, this Court ordered this matter be submitted

for disposition on the briefs previously filed, without oral argument, and with Attorney Madden

as the Bureau’s counsel.

4

May 25, 2023, the trial court filed its opinion pursuant to Appellate Rule 1925(a)

(Appellate Rule 1925(a) Opinion).

Initially, “the collection of taxes may not be implemented without due

process of law.” Husak v. Fayette Cnty. Tax Claim Bureau, 61 A.3d 302, 312 (Pa.

Cmwlth. 2013). This Court has explained:

A property owner’s right to notice “prior to commencing

with an upset tax sale [is] established pursuant to the Due

Process Clause of the Fourteenth Amendment to the

United States [(U.S.)] Constitution[, U.S. Const. amend.

XIV, § 1,] and by the [RETSL].” Rice v. Compro

Distrib[.], Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006).

The [U.S.] Supreme Court has held that due process is

implicated in any taking of property for the collection of

taxes, stating:

[P]eople must pay their taxes, and the government

may hold citizens accountable for tax delinquency

by taking their property. But before forcing a

citizen to satisfy his debt by forfeiting his property,

due process requires the government to provide

adequate notice of the impending taking.

Jones v. Flowers, 547 U.S. 220 . . . (2006). Due process

is satisfied when the [tax claim b]ureau, before

commencing with a tax sale, “provide[s] ‘notice

reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.’”

Id. (quoting Mullane v. Cent[.] Hanover Bank & Tr[.] Co.,

339 U.S. 306 . . . (1950)).

In re Consol. Reps. & Return by the Tax Claim Bureau of Northumberland Cnty. of

Props., 132 A.3d 637, 644 (Pa. Cmwlth. 2016) (en banc) (Appeal of Neff).

To ensure Pennsylvania property owners are afforded proper due

process, the General Assembly enacted Section 602 of the RETSL, 72 P.S. §

5860.602, wherein it specified the forms of notice a tax claim bureau shall provide

5

a property owner before exposing a property to an upset tax sale.8 Section 602(e)(1)

of the RETSL requires a tax claim bureau to provide notice of a tax sale “[a]t least

thirty (30) days before the date of the sale, by [U.S.] certified mail, restricted

delivery, return receipt requested, postage prepaid, to each owner as defined by [the

RETSL].” 72 P.S. § 5860.602(e)(1). In addition, Section 602(a) of the RETSL

specifies that, at least 30 days before the sale, the Bureau shall publish notice thereof

in a legal journal and at least 2 newspapers of general circulation. See 72 P.S. §

5860.602(a). Section 602(e)(3) of the RETSL further mandates that “[e]ach

property scheduled for sale shall be posted at least [10] days prior to the sale.”

72 P.S. § 5860.602(e)(3) (emphasis added).

“[S]trict compliance with the [RETSL’s] notice provisions is essential

to prevent the deprivation of property without due process.” Est. of Marra v. Tax

Claim Bureau of Lackawanna Cnty., 95 A.3d 951, 956 (Pa. Cmwlth. 2014).

In all tax sale cases, the tax claim bureau “has the

burden of proving compliance with the statutory notice

provisions.” Krawec v. Carbon [Cnty.] Tax Claim

Bureau, 842 A.2d 520, 523 (Pa. Cmwlth. 2004). Section

602 [of the RETSL] requires three different forms of

notice to property owners prior to an upset tax sale:

publication, posting, and mail. “If any of the three types

of notice is defective, the tax sale is void.” Gladstone v.

Fed[.] Nat[’l] Mortg[.] Ass[’n], 819 A.2d 171, 173 (Pa.

Cmwlth. 2003).

Appeal of Neff, 132 A.3d at 644-45 (emphasis added; footnote omitted). “[T]he

courts are responsible for applying the [RETSL] in such a manner as to afford

property owners due process of law with respect to tax sales.” Schooley v. Beaver

Cnty. Tax Claim Bureau, 4 A.3d 797, 800 (Pa. Cmwlth. 2010).

8

Section 601(a)(3) of the RETSL, 72 P.S. § 5860.601(a)(3), sets forth additional notice

requirements for owner-occupied properties.

6

In the instant appeal, Molchan challenges the Bureau’s posted notice,

claiming that the Bureau’s evidence of posting was based on inadmissible hearsay.

Hearsay is an out-of-court statement offered for the truth of the matter asserted.9 See

G.W. v. Avonworth Sch. Dist., 297 A.3d 28 (Pa. Cmwlth. 2003). Pennsylvania Rule

of Evidence (Rule) 802 specifically prohibits reliance on hearsay evidence unless it

is otherwise admissible under one of the hearsay exceptions. See Pa.R.E. 802. The

proponent of the hearsay statement has the burden of convincing the court that it is

admissible. See Commonwealth v. Smith, 681 A.2d 1288 (Pa. 1996).

“The business records exception has been incorporated into

Pennsylvania law through the [Act] . . . and [Rule] 803(6) . . . respectively.” Bayview

Loan Servicing LLC v. Wicker, 206 A.3d 474, 483 (Pa. 2019). The Act declares:

A record of an act, condition or event shall, insofar as

relevant, be competent evidence if the custodian or other

qualified witness testifies to its identity and the mode of

its preparation, and if it was made in the regular course

of business at or near the time of the act, condition or

event, and if, in the opinion of the tribunal, the sources of

information, method and time of preparation were

such as to justify its admission.

42 Pa.C.S. § 6108(b) (emphasis added). Rule 803(6)10 similarly provides that the

rule against hearsay will not exclude “[r]ecords of a [r]egularly [c]onducted

[a]ctivity” if:

9

Writings are statements under Pennsylvania Rule of Evidence 801(a). See Pa.R.E. 801(a).

10

Rule 803(6) generally tracks Federal Rule of Evidence 803(6), which states:

The following are not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness:

....

(6) Records of a Regularly Conducted Activity. A record of an

act, event, condition, opinion, or diagnosis if:

7

(A) the record was made at or near the time by--or from

information transmitted by--someone with knowledge;

(B) the record was kept in the course of a regularly

conducted activity of a “business[,]”[] which term

includes business, institution, association, profession,

occupation, and calling of every kind, whether or not

conducted for profit;

(C) making the record was a regular practice of that

activity;

(D) all these conditions are shown by the testimony of the

custodian or another qualified witness, or by a certification

that complies with Rule 902(11) or (12) [(relating to

certified domestic or foreign records of a regularly

conducted activity)] or with a statute permitting

certification; and

(E) the opponent does not show that the source of

information or other circumstances indicate a lack of

trustworthiness.

Pa.R.E. 803(6).

The Act and [] Rule [803(6)] substantially overlap in that

both generally require that a custodian or other qualified

witness testify that the record was made at or near the time

of the event recorded and that the record was kept in the

regular course of business. Moreover, both provide for the

(A) the record was made at or near the time by--or from information

transmitted by--someone with knowledge;

(B) the record was kept in the course of a regularly conducted

activity of a business, organization, occupation, or calling, whether

or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian

or another qualified witness, or by a certification that complies with

Rule 902(11) or (12) or with a statute permitting certification; and

(E) the opponent does not show that the source of information or the

method or circumstances of preparation indicate a lack of

trustworthiness.

F.R.E. 803(6).

8

trial court to make a determination in regard to whether the

circumstances surrounding the record justify its admission

or indicate a lack of trustworthiness.

Bayview, 206 A.3d at 483 (quotation marks, citations, and footnote omitted).

This Court clarified:

Under [the Act], it is not essential to produce

either the person who made the entries or the

custodian of the record at the time the entries

were made or that the witness qualifying the

business records even has personal

knowledge of the facts reported in the

business record. As long as the

authenticating witness can provide

sufficient information relating to the

preparation and maintenance of the

records to justify a presumption of

trustworthiness of the business records of

a company, a sufficient basis is provided to

offset the hearsay character of the

evidence.

Virgo v. Workers’ Comp. Appeal Bd. [(Cnty. of Lehigh-

Cedarbrook)], 890 A.2d 13, 20 (Pa. Cmwlth. 2005)

(citations omitted).

Turner v. Unemployment Comp. Bd. of Rev., 899 A.2d 381, 386 (Pa. Cmwlth. 2006)

(emphasis added).

“In regard to the business records exception, the circumstantial

trustworthiness arises from the regularity with which business records are kept and

the reliance that businesses place on the accuracy of those records.” Bayview, 206

A.3d at 483. Courts “look[] to the circumstances of the individual cases to determine

whether the elements of the business records exception were met.” Id. at 486. “As

the finder of fact, the trial court [is] in the best position to determine the

trustworthiness of the . . . documents, as well as the credibility of [the offering party’s

witness] testimony.” Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC,

174 A.3d 651, 659 (Pa. Super. 2017). Thus, “[w]hether a document should be

9

admitted under the business records exception to the hearsay rule is within the

discretion of the trier of fact provided that his or her discretion is exercised within

the dictates of [the Act].” Toth v. Workers’ Comp. Appeal Bd. (USX Corp.), 737

A.2d 838, 841 (Pa. Cmwlth. 1999).

Molchan argues that the trial court erred by admitting Palmetto’s

Report into evidence as proof that the Bureau properly posted the Property based

solely on the agency relationship between Palmetto and the Bureau. Specifically,

Molchan asserts that Pennsylvania has not adopted a rule of incorporation providing

that a record prepared by an agent is the record of the principal or that when a

business takes custody of a record, the record is deemed to be made by the acquiring

business.

At the trial court hearing, Herriott explained that the County has had a

contract with Palmetto for approximately five years, under which Palmetto has

successfully posted notices on the Bureau’s behalf. See R.R. at 14a. Herriott

declared that, when seeking to have Palmetto post a tax sale notice, the Bureau

provides Palmetto with the property address, plus longitude, latitude, and tax map

numbers and, thereafter, Palmetto provides the Bureau a report and a photograph of

the posting, as it did in this case. See R.R. at 15a-16a, 29a, 35a-36a, 49a-50a.

Herriott further reported that she pre-approved the posting as to form and substance

and, thereafter, the Bureau searched the Property on Google Earth to confirm

posting. See R.R. at 36a, 51a.

Herriott admitted that neither she nor any other County employee

physically posted the Tax Sale notice on the Property, and Palmetto was not

available at the hearing to offer testimony. See R.R. at 17a, 19a. Herriott asserted

that Palmetto prepared the Report and provided it to the Bureau, which offered it to

the trial court as a business record. See R.R. at 19a-20a. Herriott confirmed:

10

Q. All the documents that you have identified in [the

Bureau’s] file are kept in the regular course of [] business

at the . . . Bureau?

A. Yes.

Q. And they are all prepared with your prior reviews of

contents of all those notices and documents?

A. Correct.

....

Q. Are all the documents that you have identified here

filed, created, or copied contemporaneous to the events

that they represent?

A. Yes.

Q. And they are all created in the regular course of [the

Bureau’s] business?

A. Yes.

Q. The business of the . . . Bureau, which is the collection

of delinquent taxes?

A. Correct.

R.R. at 27a-28a.

Relying solely on Herriott’s testimony, the trial court admitted the

Bureau’s entire claim file for the Property, including Palmetto’s Report, as proof that

it properly posted the Notice of Public Sale at the Property, concluding:

[T]he explicit provisions in the [Act] [] empower tribunals

(e.g., judges) to assess whether the sources of information,

the method employed, and the timing of preparation were

sufficient to warrant the admission of the evidence.

Exercising its discretion, this [trial c]ourt determined the

sources of information, the method employed, and the

timing of preparation were satisfactory to justify the

admission of the evidence.

11

Appellate Rule 1925(a) Op. at 4. The trial court reasoned, based on agency law

principles:

During all activities relevant to this case, Palmetto . . .

[was] acting as agent[] of [the Bureau] under the express

authority of [the Bureau]. There is clear evidence of [the

Bureau’s] explicit desire to delegate authority to Palmetto

. . . as agent[] on [its] behalf, the acceptance of

Palmetto . . . of said responsibility, and a mutual

understanding between the parties of [the Bureau’s]

retention of control over all matters relevant to the

principal-agent relationships. As Palmetto . . . acted as

agent[] on behalf of [the Bureau] during all periods

relevant to this case, all documentation created under said

agency was within the normal scope of business as if it

were created by the [Bureau].

Id. at 4-5 (footnotes omitted). The trial court did not cite to any legal authority for

its conclusion that “all documentation [Palmetto] created under [its] agency

[relationship with the Bureau] was within the normal scope of business as if it [was]

created by the [Bureau].” Id. at 5.

Indeed,

“[a]n agent is one who acts in the place and stead of

another.” Valentine v. Packer, 5 Pa. 333, 334 (1847). In

the context of agency law, we have explained that “[t]he

law is clear in Pennsylvania that the three basic elements

of agency are: the manifestation by the principal that the

agent shall act for him, the agent’s acceptance of the

undertaking[,] and the understanding of the parties that the

principal is to be in control of the undertaking.” Basile v.

H & R Block, Inc., . . . 761 A.2d 1115, 1120 ([Pa.] 2000)

(internal quotation marks omitted) (citing Scott v. Purcell,

. . . 415 A.2d 56, 60 ([Pa.] 1980) (quoting Restatement

(Second) of Agency § 1, Comment b ([Am. Law Inst.]

1958)).

Commonwealth v. Britton, 229 A.3d 590, 597-98 (Pa. 2020).

12

Moreover, although the Pennsylvania Superior Court has expressly

declined to adopt the federal incorporation rule,11 see Commonwealth Fin. Sys., Inc.

v. Smith, 15 A.3d 492, 500 (Pa. Super. 2011) (“Regardless of a ‘nationwide trend’

and ‘clear federal precedent’ for allowing the introduction of business records

consisting of documents generated by third parties, the Pennsylvania Supreme Court

has not seen fit to adopt the [federal] rule of incorporation[.]”), the Pennsylvania

Supreme Court has held:

[W]e neither adopt a bright line rule forbidding the

authentication of documents recorded by a third party, nor

do we endorse an automatic incorporation doctrine.

Instead, we will continue to allow our trial courts to utilize

their broad discretion in evidentiary matters by applying

the business record exception of Rule 803(6) and the Act

to determine if the witness “can provide sufficient

information relating to the preparation and

maintenance of the records to justify a presumption of

trustworthiness” subject to the opponent rebutting the

evidence with any other circumstances indicating a lack of

trustworthiness. In re Indyk’s Est[.], 413 A.2d [371,] 373

[(Pa. 1979)].

Bayview, 206 A.3d at 486 (emphasis added); see also Bristol Borough v. Workers’

Comp. Appeal Bd. (Burnett), 206 A.3d 585, 616 (Pa. Cmwlth. 2019) (“[T]he person

who received the document can [] authenticate what he or she received and acted

upon.”); 1 West’s Pa. Prac., Evidence § 803(6)-1 (4th ed. 2023 update). In fact, in

In re Dauphin County Tax Sale of 2013 (Pa. Cmwlth. No. 2306 C.D. 2014, filed Jan.

11

Under Federal Rule of Evidence 803(6), federal courts have recognized a doctrine under

which documents prepared by a third party may be admissible as business records of the presenting

entity if the presenting entity regularly incorporates the documents into its own records and relies

upon their accuracy, and there are other circumstances indicating the documents’ trustworthiness.

See Air Land Forwarders, Inc. v. United States, 172 F.3d 1338 (Fed. Cir. 1999).

13

8, 2016),12 this Court upheld the admission of Palmetto’s field report based on

Palmetto’s agency relationship with the tax claim bureau and the tax claim bureau

deputy director’s testimony that, inter alia, established that she was the custodian of

the property owners’ file and detailed how Palmetto prepared and maintained the

field report, and the time of Palmetto’s posting was evident from the field report

itself.13 However, here, because such supporting evidence was not provided, as more

fully explained below, the trial court abused its discretion by admitting Palmetto’s

Report based solely on an agency relationship between Palmetto and the Bureau.

Molchan argues that the trial court abused its discretion by concluding

that Herriott’s testimony alone offset the Report’s hearsay character. Specifically,

Molchan asserts that Herriott did not possess sufficient information regarding the

manner in which Palmetto posted the Property and prepared and maintained the

Report.

In Dauphin County Tax Sale, the trial court admitted into evidence the

tax claim bureau’s entire file, including Palmetto’s field report, based solely on the

tax claim bureau deputy director’s testimony

that she was the custodian of the [b]ureau’s records, that

[Palmetto’s field report] was developed by the [b]ureau’s

agent, that such documents are normally kept by the

[b]ureau, that those files are kept in her office, and that the

documents are signed by the posting agent and notarized.

[The deputy director] testified that the [b]ureau’s posting

12

Unreported decisions of this Court issued after January 15, 2008, may be cited as

persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210

Pa. Code § 69.414(a).

13

Most often, tax claim bureaus present Palmetto’s field reports with Palmetto’s live

testimony, see Matter of Krzysiak, 151 A.3d 292 (Pa. Cmwlth. 2016); deposition testimony, see In

re Upset Sale, Tax Claim Bureau of Tioga Cnty., Control No. 012488, 305 A.3d 1118 (Pa. Cmwlth.

2023); affidavit, see In Re Tax Sale of Real Prop. Situate in Paint Twp., Somerset Cnty., 865 A.2d

1009 (Pa. Cmwlth. 2005); or joint stipulation, see Zelno v. Lyons, 245 A.3d 1185 (Pa. Cmwlth.

2021) (wherein the parties also admitted Palmetto’s contract and the municipality’s adopting

resolution).

14

agent posts the properties subject to the tax sale and then

provides the [b]ureau with files on a disc containing the

pictures and other information.

Id., slip op. at 11-12 (internal citations omitted). This Court upheld the trial court’s

decision “conclud[ing] that the testimony and the [f]ield [r]eport, itself, contain

sufficient indication of reliability to warrant its admission [such that] we cannot say

that the trial court abused its discretion.” Id. at 12. That was not the case here.

Although, as fact-finder, the trial court was in the best position to

determine the credibility and reliability of Herriott’s testimony, see Sycamore Rest.

Grp., LLC, its discretion must be exercised “within the dictates of [the Act].” Toth,

737 A.2d at 841. In particular, Herriott’s testimony had to “provide sufficient

information relating to the preparation and maintenance of the records to justify a

presumption of trustworthiness . . . to offset the hearsay character of the evidence.”

Turner, 899 A.2d at 386 (quoting Virgo, 890 A.2d at 20). Notwithstanding the trial

court’s conclusion that Herriott’s testimony established that Palmetto prepared the

Report in the ordinary course of its business at or near the time it posted the Property

and Herriott made it part of the Bureau’s file, see R.R. at 34a, 38a; see also Appellate

Rule 1925(a) Op. at 6, the record evidence did not support the trial court’s

conclusion.

Based on this Court’s review of the record, Herriott never stated that

she was the custodian of the Bureau’s records or Molchan’s file, nor did she

offer any testimony regarding the manner in which Palmetto prepared and

maintained the Report or the timing of Palmetto’s preparation in relation to

the posting,14 which information is not evident from the Report itself. See R.R.

at 49a. Herriott merely assented that the documents in the Bureau’s file are kept in

14

The Report reflects Palmetto’s representation that it posted the Property on July 18, 2022,

at 10:38 a.m., but does not show who conducted the posting or when the Report was generated and

sent to the Bureau. See R.R. at 49a.

15

the regular course of the Bureau’s business, see R.R. at 27a, and the Report was

“filed, created, or copied contemporaneous to the events that they represent[.]” R.R.

at 28a. The mere fact that the Bureau possesses the Report and calls it a

business record is not sufficient to make it so. See Sycamore Rest. Grp., LLC.

Moreover, although Herriott claims to have confirmed Palmetto’s posting on Google

Earth, see R.R. at 36a, she did not specify when she did so, and the Google Earth

photograph admitted as part of the Bureau’s file is dated March 23, 2023, six months

after the Tax Sale. See R.R. at 51a. Therefore, based on the record before the trial

court, Herriott was not a qualified witness whose testimony alone was sufficient

to offset the Report’s hearsay character.

Consequently, while the Bureau could have offered the testimony of a

qualified witness to satisfy the business records exception to the hearsay rule based

on its agency relationship with Palmetto, it did not do so here. In the absence of

testimony or other evidence regarding the manner and timing in which Palmetto

prepared and maintained the Report, and other indices of the Report’s

trustworthiness, see 42 Pa.C.S. § 6108(b), the trial court abused its discretion by

admitting the Report into evidence. Because the Bureau did not proffer admissible

evidence of the Property’s posting, one of the three required forms of Tax Sale

notice, the notice was defective and, thus, the Tax Sale was void. See Appeal of

Neff.

Based on the foregoing, the trial court’s order is reversed.

_________________________________

ANNE E. COVEY, Judge

16

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael G. Molchan, :

Appellant :

:

v. :

: No. 382 C.D. 2023

Mercer County Tax Claim Bureau :

ORDER

AND NOW, this 16th day of July, 2024, the Mercer County Common

Pleas Court’s March 31, 2023 order is reversed.

_________________________________

ANNE E. COVEY, Judge